Filed On 9/26/06 5:19pm ET · SEC File 333-136279 · Accession Number 950137-6-10380
As Of Filer Filing As/For/On Docs:Pgs Issuer Agent
9/26/06 US BioEnergy CORP S-1/A 35:955 Bowne of Chicago...01/FA
Pre-Effective Amendment to Registration Statement (General Form) · Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment to Registration Statement HTML 61K
2: EX-2.1 Transaction Agreement, Dated March 31, 2005 HTML 88K
3: EX-2.2 Transaction Agreement, Dated May 5, 2005 HTML 137K
4: EX-2.3 Transaction Agreement, Dated March 9, 2006 HTML 103K
5: EX-2.4 Transaction Agreement, Dated March 9, 2006 HTML 113K
6: EX-2.5 Purchase Agreement, Dated March 31, 2006 HTML 34K
7: EX-2.6 Membership Interest Purchase Agreement, Dated HTML 93K
April 30, 2006
8: EX-4.2 Subscription Agreement HTML 94K
9: EX-4.3 Registration Rights Agreement HTML 43K
10: EX-10.1 Standard Form of Agreement Between Owner and HTML 238K
Design-Builder
11: EX-10.2 Standard Form of Agreement Between Owner and HTML 240K
Design-Builder
12: EX-10.3 Lump Sum Design-Build Agreement HTML 504K
13: EX-10.4 Lump Sum Design-Build Expansion Agreement HTML 1,037K
14: EX-10.5 First Amended and Restated Master Agreement HTML 460K
15: EX-10.6 Master Agreement for Design, Engineering and HTML 461K
Construction
16: EX-10.7 Master Loan Agreement HTML 463K
17: EX-10.8 Continuing Guaranty HTML 43K
18: EX-10.9 Master Loan Agreement HTML 456K
19: EX-10.10 Continuing Guaranty HTML 43K
20: EX-10.11 Construction Loan Agreement HTML 198K
21: EX-10.12 Redevelopment Contract HTML 82K
22: EX-10.13 2005 Stock Incentive Plan HTML 83K
23: EX-10.16 Services Agreement HTML 49K
24: EX-10.17 Aircraft Lease Agreement HTML 39K
25: EX-10.18 Aircraft Lease Agreement HTML 42K
26: EX-10.19 Lease Agreement HTML 60K
27: EX-10.20 Amended and Restated Operating Agreement HTML 96K
28: EX-10.21 Management Agreement HTML 47K
29: EX-10.22 Ethanol Sales and Marketing Agreement HTML 60K
30: EX-10.23 Leased Employee Agreement HTML 47K
31: EX-10.24 Letter Agreement HTML 44K
32: EX-10.25 Consulting Agreement HTML 32K
33: EX-10.26 Construction Loan Agreement HTML 203K
34: EX-10.27 Form of Incentive Stock Option Agreement HTML 23K
35: EX-10.28 Amended and Restated Loan Security Agreement HTML 212K
EX-10.2 · Standard Form of Agreement Between Owner and Design-Builder
This is an EDGAR HTML document rendered as filed. [ Alternative Formats ]
Exhibit 10.2
***** PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMISSIONS HAVE BEEN INDICATED BY
ASTERISKS (“*****”), AND THE OMITTED TEXT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
Standard Form of Agreement Between
Owner and Design-Builder — Lump Sum
This document has important legal consequences. Consultation with
an attorney is recommended with respect to its completion or modification.
This AGREEMENT is made as of the 26th day of August in the year of 2005,
by and between the following parties, for services in connection with the Project identified below.
OWNER:
(Name and address)
US Bio Albert City, LLC
2356 510 Street
Albert City,
IA 50510
DESIGN-BUILDER:
(Name and address)
PROJECT:
(Include Project name and location
as it will appear in the Contract
Documents)
100 MGY Dry Grind Ethanol Plant
In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder
agree as set forth herein.
Article 1
Scope of Work
1.1 Design-Builder shall perform all design and construction services, and provide all
material, equipment, tools and labor, necessary to complete the Work described in and reasonably
inferable from the
Contract Documents.
Article 2
2.1 The
Contract Documents are comprised of the following:
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All written modifications, amendments and change orders to this Agreement
issued in accordance with DBIA Document No. 535, Standard Form of General Conditions of
Contract Between Owner and Design-Builder (1998 Edition) (“General Conditions of
Contract”); |
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This Agreement, including all exhibits and attachments, executed by Owner and
Design-Builder, said Exhibits being: |
Exhibit A
– Performance Guarantee Criteria – (2) Pages;
Exhibit B – General Project Scope – (3) Pages;
Exhibit C –Owner’s Responsibilities – (6) Pages;
Exhibit D – License Agreement. – (6) Pages;
Exhibit E – Start-up Services to be Provided to Owner – (1) Page.
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Written Supplementary Conditions, consisting of three pages, to the General
Conditions of Contract; |
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The General Conditions of Contract; and |
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Preliminary Construction Documents prepared by Design-Builder. |
Article 3
Interpretation and Intent
3.1 The
Contract Documents are intended to permit the parties to complete the Work and all
obligations required by the
Contract Documents within the
Contract Time(s) for the
Contract Price.
The
Contract Documents are intended to be complementary and interpreted in harmony so as to avoid
conflict, with words and phrases interpreted in a manner consistent with construction and design
industry standards. In the event of any inconsistency, conflict, or ambiguity between or among the
Contract Documents, the
Contract Documents shall take precedence in the order in which they are
listed in Section 2.1 hereof.
3.2 Terms, words and phrases used in the
Contract Documents, including this Agreement, shall have
the meanings given them in the Supplementary Conditions and General Conditions of
Contract.
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3.3 The
Contract Documents form the entire agreement between Owner and Design-Builder and by
incorporation herein are as fully binding on the parties as if repeated herein. The
Contract
Documents supercede any prior letters of intent between the parties, and such letters of intent are
now null and void. No oral representations or other agreements have been made by the parties
except as specifically stated in the
Contract Documents.
Article 4
Ownership of Work Product
4.1 Work Product. All drawings, specifications and other documents and electronic data
furnished by Design-Builder to Owner under this Agreement (“Work Product”) are deemed to be
instruments of service and Design-Builder shall retain the ownership and property interests
therein, including the copyrights thereto.
4.2 Owner’s Limited License Upon Payment in Full. Upon Owner’s payment in full for all Work
performed under the
Contract Documents, Design-Builder shall vest in Owner a limited license to use
the Work Product in connection with Owner’s occupancy and repair of the Project and Design-Builder
shall provide Owner with a copy of the
“as built” plans, conditioned on Owner’s express
understanding that its use of the Work Product and its acceptance of the
“as built” plans is at
Owner’s sole risk and without liability or legal exposure to Design-Builder or anyone working by or
through Design-Builder, including Design Consultants of any tier (collectively the
“Indemnified
Parties”), provided, however, that any performance guarantees and warranties (of equipment or
otherwise) shall remain in effect according to the terms of this Agreement. Owner shall be
entitled to use the Work Product for the purpose relating to this Project, but shall not be
entitled to use the Work Product on any other projects, including expansion of this Project. The
limited license to use the Work Product granted herein by Design-Builder to Owner shall be governed
by and construed in accordance with the same terms and provisions contained in the License
Agreement between Owner and ICM, attached hereto as Exhibit D and
incorporated herein by reference
thereto, except (i) references in such License Agreement to ICM and Proprietary Property shall
refer to Design-Builder and Work Product, respectively, (ii) the laws of the State of Minnesota
shall govern such limited license, and (iii) the arbitration provisions contained in Article 10 of
the General Conditions shall apply to any breach or threatened breach of Owner’s duties or
obligations under such limited license other than Design-Builder shall have the right to seek
injunctive relief in a court of competent jurisdiction against Owner or its Representatives for any
such breach or threatened breach. Design-Builder is utilizing certain proprietary property and
information of ICM, Inc., a Kansas corporation (
“ICM”), in the design and construction of the
Project, and Design-Builder may incorporate proprietary property and information of ICM into the
Work Product. Owner’s use of the proprietary property and information of ICM shall be governed by
the terms and provisions of the License Agreement between Owner and ICM, attached hereto as Exhibit
D, to be executed by such parties in connection with the execution of this Agreement. The
preceding last three sentences of this paragraph also apply to Articles 4.3 and 4.4 below.
4.3 Owner’s Limited License Upon Owner’s Termination for Convenience or Design-Builder’s Election
to Terminate. If Owner terminates the Project for its convenience as set forth in Article 8
hereof, or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of
the General Conditions of
Contract, Design-Builder shall, then upon Owner’s payment in full of the
amounts due Design-Builder under the
Contract Documents, vest in Owner a limited license to use the
Work Product to complete the Project and subsequently occupy and repair the Project, subject to the
following:
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Use of the Work Product is at Owner’s sole risk without liability or legal
exposure to any Indemnified Party; provided, however, that any “pass through”
warranties regarding equipment or express warranties regarding equipment provided by
this Agreement shall remain in effect according to their terms; and |
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If the termination for convenience is by Owner or if Design-Builder elects to
terminate this Agreement in accordance with Section 11.4 of the General Conditions of
Contract, then Owner agrees to pay Design-Builder the additional sum of One Million
Dollars
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($1,000,000.00) as
compensation for the limited right to use the Work Product (completed “as is” on the
date of termination) in accordance with this Article 4. |
4.4 Owner’s Limited License Upon Design-Builder’s Default. If this Agreement is terminated due to
Design-Builder’s default pursuant to Section 11.2 of the General Conditions of
Contract and (i) it
is determined that Design-Builder was in default and (ii) Owner has fully satisfied all of its
obligations under the
Contract Documents through the time of Design-Builder’s default, then
Design-Builder shall grant Owner a limited license to use the Work Product in connection with
Owner’s completion and occupancy and repair of the Project. This limited license is conditioned on
Owner’s express understanding that its use of the Work Product is at Owner’s sole risk and without
liability or legal exposure to any Indemnified Party; provided, however, that 0any
“pass through”
warranties regarding equipment or express warranties regarding equipment provided by this Agreement
shall remain in effect according to their terms. This limited license would grant Owner the
ability to repair the Project at Owner’s discretion.
4.5 Owner’s Indemnification for Use of Work Product. If Owner uses the Work Product under any of
the circumstances identified in this Article 4, Owner shall defend, indemnify and hold harmless the
Indemnified Parties from and against any and all claims, damages, liabilities, losses and expenses,
including attorneys’ fees, arising out of or resulting from the use of the Work Product; provided,
however, that any “pass through” warranties regarding equipment or express warranties regarding
equipment provided by this Agreement shall remain in effect according to their terms.
Article 5
5.1 Date of Commencement. The Work shall commence within five (5) days of Design-Builder’s
receipt of Owner’s written Notice to Proceed (
“Date of Commencement”) unless the parties mutually
agree otherwise in writing. The parties agree that a valid Owner’s Notice to Proceed cannot be
given until: ***** In accordance with the above section 5.1(3), Design-Builder acknowledges that a
valid Notice to Proceed was accepted on
July 26, 2005. Notwithstanding the previous sentence,
Design-Builder does not waive its right to enforce compliance with the foregoing provisions.
5.2 Substantial Completion and Final Completion
5.2.1 Substantial Completion of the entire Work shall be achieved no later than four hundred
eighty-five (485) calendar days after the Date of Commencement.
5.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work shall be
achieved as follows: Owner shall provide the following within 90 days of Design-Builder’s receipt
of Owner’s Notice to Proceed, as described in Section 5.1 of this Agreement:
• Owner shall determine its water source and provide Design-Builder an independent
analysis of the water source, and
• Owner shall provide the name of its property/all risk insurance carrier and the specific
requirements for fire protection.
The two bulleted requirements referred to above are further detailed in Exhibit C. The Scheduled
Substantial Completion date will likewise be extended a corresponding amount of days for each day
Owner exceeds the 90-day timeframe referred to above in Section 5.2.2.
5.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as
expeditiously as reasonably practicable.
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5.2.4 All of the dates set forth in this Article 5 (
“Contract Time(s)”) shall be subject to
adjustment in accordance with the General Conditions of
Contract. Specifically, if delays in the
Contract Time occur because of delay in the delivery of materials or equipment that is beyond the
control of Design-Builder, the
Contract Time will be adjusted, without penalty to Design-Builder,
pursuant to Sections 8.2.1 and 8.2.2 of the General Conditions of
Contract.
5.3 Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence
with respect to the dates and times set forth in the
Contract Documents.
Article 6
6.1 Contract Price. Owner shall pay Design-Builder in accordance with Article 6 of the
General Conditions of
Contract the sum of Ninety-seven million, two hundred fifty thousand and
00/100 Dollars ($97,250,000.00) (
“Contract Price”), subject to adjustments made in accordance with
the General Conditions of
Contract. The
Contract Price is calculated on the basis of the use of
non-union labor for construction of the Project, and the
Contract Price may be subject to a price
escalation if union labor is used for construction of the Project. Unless otherwise provided in
the
Contract Documents, the
Contract Price is deemed to include all sales, use, consumer and other
taxes mandated by applicable Legal Requirements.
6.2 Markups for Changes. The parties agree that changes shall not occur pursuant to Sections
9.4.1.3 or 9.4.1.4 of the General Conditions of
Contract, but may occur pursuant to the other
provisions therein.
Article 7
Procedure for Payment
7.0 Payment at Financial Close. As part of the
Contract Price, Owner shall pay Design-Builder
***** as soon as allowed by its organizational documents, the Escrow Agreement and any other
relevant agreements or laws (such payment to possibly occur prior to Financial Close) as a
mobilization fee. Provided, however, that said payment, if not made earlier, shall be paid at
Financial Close. Financial Close is defined as Owner executing final loan documents obtaining all
necessary financing to construct the project and funds are available to pay disbursements. Said
***** Dollar payment shall be subject to the retainage as provided by Article 7.2.1.
7.1 Progress Payments
7.1.1 Design-Builder shall submit to Owner on the twenty-fifth ( 25
th ) day of each
month, beginning with the first month after the Date of Commencement, Design-Builder’s Application
for Payment in accordance with Article 6 of the General Conditions of
Contract.
7.1.2 Owner shall make payment within ten (10) days after Owner’s receipt of each properly
submitted and accurate Application for Payment in accordance with Article 6 of the General
Conditions of
Contract, but in each case less the total of payments previously made, and less
amounts properly withheld under Section 6.3 of the General Conditions of
Contract.
7.2 Retainage on Progress Payments
7.2.1 Owner will retain ten percent ( 10%) of each payment provided, however, that when fifty
percent (50%) of the Work ($48,625,000.00 aggregate payment) has been completed by Design-Builder,
Owner will not retain any additional amounts from Design-Builder’s subsequent payments, unless
there is less than $4,862,500.00 total retainage. Owner will also reasonably consider reducing
retainage for Subcontractors completing their work early in the Project.
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7.2.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work,
pursuant to Section 6.6 of the General Conditions of
Contract, Owner shall release to
Design-Builder all retained amounts relating, as applicable, to the entire Work or completed
portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete
items of Work as noted in the Certificate of Substantial Completion, provided that such payment
shall only be made if Design-Builder has met the Performance Guarantee Criteria listed in Exhibit
A.
7.3 Final Payment. Design-Builder shall submit its Final Application for Payment to Owner
in accordance with Section 6.7 of the General Conditions of
Contract. Owner shall make payment on
Design-Builder’s properly submitted and accurate Final Application for Payment within thirty (30)
days after Owner’s receipt of the Final Application for Payment, provided that Design-Builder has
satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions
of
Contract and Design-Builder has met the Performance Guarantee Criteria listed in Exhibit A.
7.4 Interest. Payments which are due and unpaid by Owner to Design-Builder, whether progress
payments or final payment, shall bear interest commencing five (5) days after payment is due at the
rate of eighteen percent (18%) per annum.
7.5 Record Keeping and Finance Controls. With respect to changes in the Work performed on a cost
basis by Design-Builder pursuant to the
Contract Documents, Design-Builder shall keep full and
detailed accounts and exercise such controls as may be necessary for proper financial management,
using accounting and control systems in accordance with generally accepted accounting principles
and as may be provided in the
Contract Documents. During the performance of the Work and for a
period of three (3) years after Final Payment, Owner and Owner’s accountants shall be afforded
access from time to time, upon reasonable notice, to Design-Builder’s records, books,
correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda and other data
relating to changes in the Work performed on a cost basis in accordance with the
Contract
Documents, all of which Design-Builder shall preserve for a period of three (3) years after Final
Payment.
Article 8
Termination for Convenience
8.1 Upon ten (10) days’ written notice to Design-Builder, Owner may, for its convenience and
without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder
for the following:
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All Work executed, and for proven loss, cost or expense in connection with the
Work; |
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The reasonable costs and expenses attributable to such termination, including
demobilization costs and amounts due in settlement of terminated contracts with
Subcontractors and Design Consultants; and |
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Overhead and profit margin in the amount of fifteen percent ( 15 %) on the sum
of items .1 and .2 above, except that overhead and profit shall not be due regarding
amounts due in settlement of terminated contracts with subcontractors and design
consultants. |
8.2 In addition to the amounts set forth in Section 8.1 above, Design-Builder shall be entitled to
receive all retainage withheld by Owner.
8.3 If Owner terminates this Agreement pursuant to Section 8.1 above and proceeds to design
and construct the Project through its employees, agents or third parties, Owner’s rights to use the
Work Product shall be as set forth in Section 4.3 hereof.
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Article 9
Representatives of the Parties
9.1 Owner’s Representatives
9.1.1 Owner designates the individual listed below as its Senior Representative (
“Owner’s Senior
Representative”), which individual has the authority and responsibility for avoiding and resolving
disputes under Section 10.2.3 of the General Conditions of
Contract:
(Identify individual’s
name, title, address and telephone numbers)
Steve Myers
Director and Vice President
US BioEnergy Corporation
111 Main Avenue, Suite 200
Brookings, SD 57006
(605) 696-3150
9.1.2 Owner designates the individual listed below as its Owner’s Representative, which individual
has the authority and responsibility set forth in Section 3.4 of the General Conditions of
Contract:
(Identify individual’s name, title, address and telephone numbers)
Mike Malecha
Sr. Vice President
United Bio Energy (“UBE”)
2868 N. Ridge Road
Wichita, KS 67205
(316) 616-3530
9.2 Design-Builder’s Representatives
9.2.1 Design-Builder designates the individual listed below as its Senior Representative
(
“Design-Builder’s Senior Representative”), which individual has the authority and responsibility
for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of
Contract:
(Identify individual’s name, title, address and telephone numbers)
Roland “Ron” Fagen, CEO and President
501 W. Highway 212
P.O. Box 159
Granite Falls, MN 56241
Telephone: (320) 564-3324
9.2.2 Design-Builder designates the individual listed below as its Design-Builder’s
Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General
Conditions of
Contract:
(Identify individual’s name, title, address and telephone numbers)
Aaron Fagen
Chief Operating Officer
501 W. Highway 212
P.O. Box 159
Granite Falls, MN 56241
Telephone: (320) 564-3324
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Article 10
Bonds and Insurance
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Insurance. Design-Builder shall procure in accordance with Article 5 of the General
Conditions of Contract the following insurance coverage: A certificate of insurance will be
provided prior to starting construction. Policy limits shall be as follows: |
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Commercial General Liability: |
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General Aggregate |
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2,000,000 |
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Products-Comp/Op AGG |
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2,000,000 |
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Personal & Adv Injury |
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1,000,000 |
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Each Occurrence |
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1,000,000 |
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Fire Damage (Any one fire) |
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50,000 |
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Med Exp (Any one person) |
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5,000 |
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Automobile Liability: |
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Combined Single Limit |
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1,000,000 |
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Excess Liability – Umbrella Form |
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Each Occurrence |
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20,000,000 |
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Aggregate |
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20,000,000 |
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Workers Compensation and |
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Employers’ Liability: |
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Statutory Limits: |
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Each Accident |
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1,000,000 |
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Disease-Policy Limit |
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1,000,000 |
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Disease-Each Employee |
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1,000,000 |
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Contractor’s Professional Liability Coverage: |
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Per Claim |
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5,000,000 |
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Aggregate |
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5,000,000 |
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Owner shall provide the following within 10 days of Design-Builder’s receipt of Owner’s
Notice to Proceed, or at Financial Close, whichever occurs first:
• Owner shall obtain a builder’s risk policy naming Owner as the insured, with
Design-Builder as additional insured, in an amount not less than the
Contract Price.
• Owner shall also obtain Boiler and Machinery Insurance protecting Owner,
Design-Builder, Design Consultants, Subcontracts and Subcontractors.
• In addition, Owner shall obtain terrorism coverage as described by the Terrorism
Risk Insurance Act of 2002.
Article 11
Other Provisions
11.1 Other provisions, if any, are as follows:
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Performance Guarantee: The Design-Builder guarantees the Criteria listed in Exhibit
A. If there is a performance shortfall, Design-Builder will pay all design,
engineering, equipment, and
construction costs associated with making the necessary corrections. Design-Builder
retains the right to use its sole discretion in determining the method to remedy any
performance related issues. |
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If Owner, for whatever reason, prevents Design-Builder from demonstrating the
Performance Guarantee Criteria within 30 days of Design-Builder’s notice that the Project is
ready for Performance Testing, Design-Builder is thereby deemed to have fulfilled all of its
Performance Guarantee obligations listed in Exhibit A. |
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Price Guarantee: The Design-Builder guarantees the Contract Price for the Work
delineated by the Contract Documents. Any and all price increases would require, in
addition to Owner’s approval, the approval of Owner’s senior lender. |
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Winter Construction: Owner shall have no responsibility for any winter construction
related activities including, but not limited to, special material costs, sheltering,
heating, and equipment rental, except that Owner shall pay all the reasonable costs
incurred for frost removal including, but not limited to, equipment costs, equipment
rental costs, and associated labor costs so that winter construction can proceed. |
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Design-Builder shall obtain or cooperate in obtaining a performance bond if such a
bond is requested by Owner. If the bond is obtained by Design-Builder, Owner shall pay
Design-Builder for the cost of the bond, plus pay Design-Builder a fee of 7.5%, said
fee calculated by multiplying 7.5% on the cost of the bond. If purchased by Owner,
Owner shall pay all costs of obtaining the bond. |
In executing this Agreement, Design-Builder represents that it has the necessary financial
resources to fulfill its obligations under this Agreement and has the necessary corporate approvals
to execute this Agreement and perform the services described herein. Owner represents that it has
the necessary organizational approvals to execute this Agreement; that Owner is seeking financing
for the project and that Owner agrees to keep Design-Builder informed of Owner’s progress in
obtaining commitments for and closing on such financing.
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OWNER:
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DESIGN-BUILDER: |
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US Bio Albert City, LLC
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Fagen, Inc. |
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(Name of Owner)
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(Name of Design-Builder) |
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/s/ RON FAGEN |
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(Signature)
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(Signature) |
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Roland “Ron” Fagen |
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(Printed Name)
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(Printed Name) |
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Vice President and Chief Financial Officer
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CEO and President |
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(Title)
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(Title) |
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Date: 08/26/05
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Date: 09/30/05 |
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| DBIA Document No. 525 • Standard Form of Agreement
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Page 9 |
| Between Owner and Design-Builder — Lump Sum |
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| © 1998 Design-Build Institute of America |
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EXHIBIT A
Performance Guarantee Criteria
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| Criteria |
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Specification |
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Testing Statement |
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Documentation |
Plant Capacity –
fuel grade ethanol
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Operate at a rate
of 100 million
gallons per year of
denatured fuel
grade ethanol
meeting the
specifications of
ASTM 4806 based on
353 days of
operation per
calendar year and
4.76% denaturant.
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Seven day
performance test
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Production records
and a written
report by
Design-Builder. |
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Dried Distillers
Grains with
Solubles (DDGS)
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Dry all DDGS to
produce 11%
moisture DDGS
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Seven day
performance test
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Production records
and written
analysis by
Design-Builder. |
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Corn to Ethanol
Conversion ratio;
*****
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Not be less
than 2.80 denatured
gallons of ethanol
per bushel (56#) of
ground corn
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As determined by
meter readings
during a seven day
performance test.
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Production records
and written
analysis by
Design-Builder. |
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Electrical Energy
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0.75 kWh per
denatured gallon of
fuel grade ethanol.
*****
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As determined
by meter readings
during a seven day
performance test.
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Production records
and written
analysis by
Design-Builder. |
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Natural Gas
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Shall not exceed
34,000 Btu per
denatured gallon of
fuel grade ethanol
and 100% of all DDG
with syrup to 11%
moisture.
(This Performance
Criteria relates to
production of
ethanol and
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As determined by
meter readings
during a seven day
performance test.
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Production records
and written
analysis by
Design-Builder. |
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| Criteria |
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Specification |
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Testing Statement |
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Documentation |
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excludes any
natural gas usage
that may occur for
drying corn). |
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Process Water
Discharge
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Zero gallons under
normal operations
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Process discharge
meter
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Control System
reports |
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Air Emissions
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Must meet the
requirements
prescribed as of
the date hereof by
the State of Iowa
Department of
Natural Resources,
Air Quality Bureau
for a synthetic
minor source.
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As required by
State agency and
performed by
Owner’s Air
Emission Tester.
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Written report by
Owner’s Air
Emission Tester. |
DISCLAIMER: Owner’s failure to materially comply with the operating procedures issued by ICM,
Inc./Fagen, Inc. shall void all performance guaranties and warranties set forth in this
Design-Build Agreement.
Owner understands that the startup of the plant requires resources and cooperation of the Owner,
vendors and other suppliers to the project. Design-Builder disclaims any liability and Owner
indemnifies Design-Builder for non-attainment of the Performance Guarantee Criteria directly or
indirectly caused by material non-performance or negligence of third parties not retained by
Design-Builder.
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EXHIBIT B
General Project Scope
Construct a 100 million-gallon per year (MGY) dry mill fuel ethanol plant near Albert City, Iowa.
The plant will grind approximately 35.8 million bushels of corn per year to produce approximately
100 MGY of denatured fuel ethanol. The plant will also produce approximately 321,000 tons per year
of 11% moisture dried distillers grains with solubles (DDGS), and approximately 285,700 tons per
year of raw carbon dioxide (CO2) gas.
Delivered corn will be dumped in the receiving building. The receiving building will have two
truck grain receiving bays and a rail receiving bay, including an underground conveyor from the
rail pit to the second truck receiving bay both of which share a common receiving leg. The truck
driver will drive onto the pitless scale located near the administration building, be weighed and
sampled, then drive to the receiving building, dump the grain, then proceed back to the pitless
scale and obtain a final weight ticket from the scale operator. Two independent 15,000-bushel legs
will lift the corn to one of two 500,000 – bushel concrete storage bins. A dust collection system
will be installed on the grain receiving system to limit particulate emissions as described in the
Air Quality Permit application.
Ground corn will be mixed in a slurry tank, routed through a pressure vessel and steam flashed off
in a flash vessel. Cooked mash will continue through liquefaction tanks and into one of the
fermenters. Simultaneously, propagated yeast will be added to the mash as the fermenter is
filling. After batch fermentation is complete, the beer will be pumped to the beer well and then
to the beer column to vaporize the alcohol from the mash.
Alcohol streams are dehydrated in the rectifier column, the side stripper and the molecular sieve
system. Two hundred proof alcohol is pumped to the tank farm day tank and blended with five
percent natural gasoline as the product is being pumped into one of two 1,500,000 gallon final
storage tanks. Loading facilities for truck and rail cars will be provided. Tank farm tanks
include: one tank for 190 proof storage, one tank for 200 proof storage, one tank for denaturant
storage and two 1,500,000 gallon tanks for denatured ethanol storage.
Corn mash from the beer stripper is dewatered in the centrifuge(s). Wet cake from the
centrifuge(s) is conveyed to the DDGS dryer system. Wet cake is conveyed from the centrifuges to
the dryer(s) where the water is removed from the cake and the product is dried to 11% moisture. A
modified wet or wet cake pad is located along side the DDGS dryer building to divert modified wet
or wet cake to the pad when necessary or for limited production of modified wet or wet cake for
sales. Water in the thin stillage is evaporated and
recycled by the Bio-Methanation system. Syrup is added to the wet cake entering the
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dryer(s).
DDGS is cooled in a drum and conveyed to flat storage in the DDGS storage building. Shipping is
accomplished by scooping and pushing the product
with a front-end loader into an in-floor conveyor system. The DDGS load out pit has capacity for
approximately one semi-trailer load. DDGS is weighed as it is loaded for shipment through a
bulk-weigh system.
Fresh water for the boilers, cooking, cooling tower and other processes will be obtained from the
Owner supplied water pretreatment system. Boiler water conditioned in regenerative softeners will
be pumped through a deaerator scrubber and into a deaerator tank. Appropriate boiler chemicals
will be added as preheated water is sent to the boiler.
Steam energy will be provided by one Thermal Oxidizer (TO) driven boiler system utilizing a high
percentage of condensate return to a condensate receiver tank.
The TO/Heat Recovery Steam Generator is a process used to thermally oxidize the exhaust gasses from
the Dryers. This process will be used to reduce VOCs and particulates that are in the dryer
exhaust and ensure compliance with environmental regulations. The energy required to complete
thermal oxidization will then be ducted to a waste heat boiler that will produce 100% of the steam
requirements of the ethanol plant. The exhaust gasses from the waste heat boiler will be ducted
through stack gas economizer(s) to recover the maximum amount of energy possible from the exhaust
gas stream. After the economizer(s), the gas stream will be vented to atmosphere through a stack.
The process will be cooled by circulating water through heat exchangers, a chiller, and a cooling
tower.
The design includes a compressed air system consisting of air compressor(s), a receiver tank,
pre-filter, coalescing filter, and double air
dryer(s).
The design also incorporates the use of a clean-in-place (CIP) system for cleaning cook,
fermentation, distillation, evaporation, centrifuges, and other systems. Fifty percent caustic
soda is received by truck and stored in a tank.
Under normal operating circumstances, the plant will not have any wastewater discharges that have
been in contact with corn, corn mash, cleaning system, or contact process water. An ICM/Phoenix
Bio-Methanator will reduce the BOD in process water allowing complete reuse within the plant. The
plant will have blowdown discharges from the cooling tower and may
have water discharge from any water pre-treatment processes. Owner shall provide on-site
connection to sanitary sewer or septic system.
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Most plant processes are computer controlled by a Siemens/Moore APACS distributed control system
with graphical user interface and three workstations. The control room control console will have
dual monitors to facilitate operator interface between two graphics screens at the same time.
Additional programmable logic controllers (PLCs) will control certain process equipment. Design
Builder provides lab equipment.
The cooking system requires the use of anhydrous ammonia, and other systems require the use of
sulfuric acid. Therefore, a storage tank for ammonia and a storage tank for acid will be on site
to provide the quantities necessary. The ammonia storage requires that plant management implement
and enforce a Process Safety Management (PSM) program. The plant design may require additional
programs to ensure safety and to satisfy regulatory authorities.
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EXHIBIT C
Owner’s Responsibilities
The Owner shall perform and provide the permits, authorizations, services and construction as
specifically described hereafter:
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Land and Grading – Owner shall provide a site near or in Albert City, Iowa. Owner shall
obtain all legal authority to use the site for its intended purpose and perform technical due
diligence to allow Design-Builder to perform including, but not limited to, proper zoning
approvals, building permits, elevation restrictions, soil tests, and water tests. The site
shall be rough graded per Design-Builder specifications and be +/- three inches of final grade
including the rough grading for Site roadways. The site soils shall be modified as required
to provide a minimum allowable soil bearing pressure as described in Table 1. |
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Other items to be provided by the Owner include, but are not limited to, the following: initial
site survey (boundary and topographic) as required by the Design-Builder, layout of the
property corners including two construction benchmarks, Soil Borings and subsequent
Geotechnical Report describing recommendation for Roads, foundations and if required, soil
stabilization/remediation, land disturbance permit, erosion control permit, site grading as
described above with minimum soil standards, placement of erosion control measures, plant
access road from a county, state or federal road designed to meet local county road standards,
plant storm and sanitary sewers, fire water system with hydrants and plant water main branches
taken from the system to be within five feet of the designated building locations, all tanks,
motors and other equipment associated with or necessary to operate the fire water loop and
associated systems, plant roads as specified and designed for the permanent elevations and
effective depth, “construction” grading plan as drawn (including site retention pond), plant
water well and associated permit(s). Owner shall also provide the final grading, seeding and
mulching, and site fencing at the site. |
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Owner is encouraged to obtain preliminary designs/information and estimates of the cost of
performing all Owner required permits and services as stated in this Exhibit C. Specifically,
the cost of the fire water systems (including associated fire water pumps, required tank,
building (if required), sprinklers, and all other equipment and materials associated with the
fire water delivery systems) is estimated being in excess of $1,000,000. The requirements of
each state and the decisions of each Owner will increase or decrease the actual cost. |
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The Owner’s required activities related to site preparation for construction are to be divided
into Phase I and Phase II activities as described below: |
Deliverables by Owner prior to start of Phase 1 Civil Design:
Procure Boundary & Topographic Survey (to one foot contours)
Procure
Soil Borings and Geotechnical Report with recommendations (at Design-Builder’s requested locations and depth)
Phase 1 (Deliverable Site):
Design-Builder provides engineering services to develop these items:
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Final Plant Layout with FFE and Top of Road
Elevations |
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Final Cut/Fill Quantity Calculations |
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3. |
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Grading and Erosion Control Plan |
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4. |
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Clear & Grubbing Plan — graded to +/- 3” of subgrade |
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Subgrade is defined as 1’ below proposed Building FFE and Administration
Building FFE and 20” to 30” (based on rail designer input) below top of
rail for the rail spurs. Subgrade for the in-plant roads will be
determined upon recommendations from the geotechnical engineer (12” to 24”
below final top of road) |
*Owner shall prepare site according to Design-Builder’s engineering plans for the above
items.
Plant Access Road and all in-plant roads (which will act as base for final roadway
system)
Soil Stabilization
Site Grading
Replacement Fill
Construction Layout (parking and laydown with minimum Geo Text 220 fabric and 3” roadstone
placement, access areas, temp. drainage)
Storm Water Drainage & Detention
Phase 2 Site Work (Final Civil Design Plans):
Design-Builder provides engineering services to develop these items:
Site Utilities (Within Property Line):
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Sanitary Sewer System |
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Potable Water Supply and Distribution |
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Process Water Supply and Distribution
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Gas Supply and Distribution |
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Fire Loop and Fire Protection System |
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Site Electric |
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Site Natural Gas |
Wells and Well Pumps (supply of sufficient quantity for construction activities)
Minimum 3 Phase, 480 Volt, 1,000 KVA Electrical Power Available for Construction at two
locations (at Design-Builder’s requested location)
Design/Builder shall be reimbursed on a “Time & Material” basis for any management of these
Owner requirements and any design engineering requested by the Owner not otherwise
required to be provided by Design-Builder pursuant to this Agreement.
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Permits – Owner shall obtain all Operating Permits including, but not limited to, air quality
permits, in a timely manner to allow startup of the plant as designed by Design-Builder.
Owner shall obtain all testing and site inspections required to secure the necessary operating
permits. |
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Storm Water Runoff Permit – Owner shall obtain the construction storm – water runoff permit,
permanent storm-water runoff permit, and the erosion control/land disturbance permit. |
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Iowa Pollutant Elimination Discharge Permit – Owner shall obtain a permit to discharge
cooling tower water and reverse osmosis (“R.O.”) reject water and any other waste water
directly to a designated waterway or other location Owner shall supply the discharge piping to
transport to the designated waterway or other location. |
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Natural Gas Supply and Service Agreement – Owner shall procure and supply a continuous supply
of natural gas of at least 3.2 billion cubic feet per year, at a minimum rate of 450-500 MCF
per hour and at a pressure of at least 200 psig at the plant site, then reduced to 60 psig for
distribution to the use points. Pressure reducing stations must be located so as to provide
stable pressure and temperature at the point of use. Owner shall provide all gas piping to
the use points and supply meters and regulators to provide burner tip pressures as specified
by Design-Builder. Owner shall also supply a digital flowmeter on-site with appropriate
output for monitoring by the plant’s computer control system. |
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Electrical Service – (1) The Owner is responsible to secure continuous service from an energy
supplier to serve the facility. The service from the energy supplier shall be of
sufficient size to provide at a minimum 12.5 MW of electrical capacity to the site. (2) |
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The Owner is responsible for procurement, installation and maintenance of the site distribution
system, including but not limited to the required substation and all associated distribution
lines, switchgear, sectional cabinets, distribution transformers, transformer pads, etc. An
on-site primary digital meter is also to be supplied for monitoring of electrical usage and
demand. This meter must have the capability to be monitored via a telephone line or other
electrical signal. (3) The responsibility of the Design-Builder starts at the secondary
electrical terminals of the site distribution system transformers that have been installed by
Owner (i.e., the 480 volt terminals for the process building transformers; the 480 volt
terminals for the energy center transformers; the 480 volt terminals for the grains
transformer; the 480 volt terminals for the pumphouse transformer; and the 4160 volt terminals
for the chiller transformer; and the 4160 volt terminals of the thermal oxidizer transformer).
(4) The site distribution system requirements, layout, and meters are to be determined jointly
by the Owner, the Design-Builder and the energy supplier. |
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Design-Builder will be providing soft start motor controllers for all motors greater than 150
horsepower and where demanded by process requirements. Owner is encouraged to discuss with its
electrical service supplier whether additional soft start motor controllers are advisable for
this facility and such can be added, with any increased cost being an Owner’s cost. |
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Design-Builder will provide power factor correction to 0.92 lagging at plant nameplate
capacity. Owner is encouraged to discuss with its electrical service supplier any requirements
for power factor correction above 0.92 lagging. Additional power factor correction can be
added with any increased cost being an Owner’s cost. |
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Water Supply and Service Agreement – Owner shall supply on-site process wells or other water
source capable of providing a quantity of water which includes process water, R.O. feed water,
cooling tower make-up water, of a quality which will allow discharges to comply with NPDES
limits. Owner should consider providing a redundant supply source. Design-Builder shall
provide the standard zeolite water softener system. Any increased costs incurred for another
water treatment system if water does not meet the quality requirements shall be the
responsibility of the Owner. Owner will supply one process fresh water supply line
terminating within five (5) feet of the point of entry designated by Design-Builder, one
potable supply line terminating within five (5) feet of the process building at a point of
entry designated by Design-Builder, and one potable supply line to the administration building
at a point of entry designated by administration building contractor. |
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Owner is advised that most projects require a reverse osmosis system. Such system is an
Owner’s cost and Owner is advised that the purchase and installation cost of such a
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reverse osmosis system may exceed $1,000,000. Owner is also advised that such systems may be leased if
Owner desires to avoid the costs of owning such a system. |
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Wastewater Discharge System, Permits and/or Service Agreement – Owner shall provide the
discharge piping, septic tank and drainfield system or connect to municipal system as required
for the sanitary sewer requirements of the Plant. These provisions shall comply with all
federal, state, and local regulations, including any permitting issues. |
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Roads and Utilities – Owner shall provide and maintain the ditches and permanent roads,
including the gravel, pavement or concrete, with the roads passing standard compaction tests.
(Design-Builder will maintain aggregate construction roads during construction of the Plant
and will return to original pre-construction condition prior to Owner completing final grade
and surfacing.) |
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Except as otherwise specifically stated herein the Owner shall install all utilities so that
they are within five (5) feet of the designated building/structure locations. |
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Administration Building – The administration building – one story free standing, office
computer system, telephone system, office copier and fax machine and office furniture and any
other office equipment and personal property for the administration building shall be the sole
and absolute cost and responsibility of Owner and Design-Builder shall have no responsibility
in regards thereto. |
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Maintenance and Power Equipment – The maintenance and power equipment as described in Table 2
and any other maintenance and power equipment as required by the plant or desired by Owner
shall be the sole and absolute cost and responsibility of Owner and Design-Builder shall have
no responsibility in regards thereto. |
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Railroads – Owner is responsible for any costs associated with the railroads including, but
not limited to, all rail design and engineering and construction and Design-Builder shall have
no responsibility in regards thereto. |
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Drawings – Owner shall supply drawings to Design-Builder of items supplied under items 10)
and 12) and also supply Phase II redline drawings. |
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Fire Protection System – Fire protection system requirements vary by governmental
requirements per location and by insurance carrier requirements. Owner is responsible to
provide the required fire protection system for the Plant. This may include storage |
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tanks, pumps, underground fire water mains, fire hydrants, foam or water monitor valves, sprinkler
systems, smoke and heat detection, deluge systems, or other provisions as required by
governmental codes or Owner’s insurance carrier’s fire protection criteria. Design-Builder
will provide assistance to the Owner on a “Time & Material” basis for design and/or
construction of the Fire Protection Systems required for the plant. |
Table 1 Minimum Soil Bearing Pressure – Responsibility of Owner
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Required Allowable Soil Bearing Pressure |
| Description |
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(pounds per square foot) |
Grain Storage Silos |
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8,000 |
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DDGS Storage Silo(s) |
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6,000 |
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Cook Water Tank |
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3,500 |
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Methanator Feed Tank |
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3,500 |
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Liquifaction Tank #1 |
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3,500 |
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Liquifaction Tank #2 |
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3,500 |
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Fermentation Tank #1 |
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4,000 |
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Fermentation Tank #2 |
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4,000 |
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Fermentation Tank #3 |
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4,000 |
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Fermentation Tank #4 |
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4,000 |
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Fermentation Tank #5 |
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4,000 |
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Fermentation Tank #6 |
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4,000 |
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Fermentation Tank #7 |
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4,000 |
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Beerwell |
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4,000 |
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Whole Stillage Tank |
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3,500 |
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Thin Stillage Tank |
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3,500 |
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Syrup Tank |
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3,500 |
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190 Proof Day Tank |
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3,000 |
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200 Proof Day Tank |
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3,000 |
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Denaturant Tank |
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3,000 |
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Fire Water Tank |
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3,000 |
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Denatured Ethanol Tank #1 |
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4,000 |
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Denatured Ethanol Tank #2 |
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4,000 |
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All Other Areas |
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3,000 |
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Table 2 Maintenance and Power Equipment – Responsibility of Owner
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| Description |
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Additional Description |
Spare Parts
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Spare parts
Parts bins
Misc. materials, supplies and equipment |
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Shop supplies and equipment
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One shop welder
One portable gas welder
One plasma torch
One acetylene torch
One set of power tools
Two sets of hand tools with tool boxes
Carts and dollies
Hoists (except centrifuge overhead crane)
Shop tables
Maintenance office furnishings & supplies
Fire Extinguishers
Reference books
Safety manuals
Safety cabinets & supplies, etc. |
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Rolling stock
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Used 1 1/2 yard front end loader
New Skid loader
Used Fork lift
Used Scissors lift, 30 foot
Used Pickup truck
Track Mobile |
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EXHIBIT D
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this “License Agreement”) is entered into and made effective as of the 26th
day of August, 2005 (“Effective Date”) by and between US Bio Albert City, LLC, a limited liability
company (“OWNER”), and ICM, Inc., a Kansas corporation (“ICM”).
WHEREAS, OWNER has entered into that certain Design-Build Lump Sum
Contract dated
August 26,
2005 (the
“Contract”) with Fagen, Inc., a Minnesota corporation (
“Fagen”), under which Fagen is to
design and construct a 100 million gallon per year ethanol plant for OWNER to be located in or near
Albert City, Iowa (the
“Plant”);
WHEREAS, ICM has granted Fagen the right to use certain proprietary technology and information
of ICM in the design and construction of the Plant; and
WHEREAS, OWNER desires from ICM, and ICM desires to grant to OWNER, a license to use such
proprietary technology and information in connection with OWNER’s ownership and operation of the
Plant, all upon the terms and conditions set forth herein;
NOW, THEREFORE, the parties, in consideration of the foregoing premises and the mutual
promises contained herein and for other good and valuable consideration, receipt of which is hereby
acknowledged, agree as follows:
1. ICM grants to OWNER a limited license to use the Proprietary Property (hereinafter defined)
solely in connection with the design, construction, operation, maintenance and repair of the
Plant, subject to the limitations provided herein (the
“Purpose”). In the event OWNER fails to
pay to Fagen all amounts due and owing Fagen under the
Contract or the
Contract is terminated
for any reason prior to the substantial completion of the Plant, ICM may terminate the limited
license granted to OWNER herein upon written notice to OWNER.
2. The “Proprietary Property” means, without limitation, documents, Operating Procedures
(hereinafter defined), materials and other information that are furnished by ICM to OWNER,
whether directly or indirectly through Fagen, in connection with the Purpose including, without
limitation, the design, arrangement, configuration, and specifications of (i) the combinations
of distillation, evaporation, and alcohol dehydration equipment (including, but not limited to,
pumps, vessels, tanks, heat exchangers, piping, valves and associated electronic control
equipment) and all documents supporting those combinations; (ii) the combination of the
distillers grain drying (DGD), and heat recovery steam generation (HRSG) equipment (including,
but not limited to, pumps, vessels, tanks, heat exchangers, piping and associated electronic
control equipment) and all documents supporting those combinations; and (iii) the computer
system, known as the distributed
control system (DCS and/or PLC) (including, but not limited to,
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the software configuration,
programming, parameters, set points, alarm points, ranges, graphical interface, and system
hardware connections) and all documents supporting that system. The “Operating Procedures”
means, without limitation, the process equipment and specifications manuals, standards of
quality, service protocols, data collection methods, construction specifications, training
methods, engineering standards and any other information prescribed by ICM from time to time
concerning the Purpose. Proprietary Property shall not include any information or materials
that OWNER can demonstrate by written documentation: (i) was lawfully in the possession of
OWNER prior to disclosure by ICM; (ii) was in the public domain prior to disclosure by ICM;
(iii) was disclosed to OWNER by a third party other than Fagen having the legal right to
possess and disclose such information or materials; or (iv) after disclosure by ICM comes into
the public domain through no fault of OWNER or its directors, officers, employees, agents,
contractors, consultants or other representatives (hereinafter collectively referred to as
“Representatives”). Information and materials shall not be deemed to be in the public domain
merely because such information is embraced by more general disclosures in the public domain,
and any combination of features shall not be deemed to be within the foregoing exceptions
merely because individual features are in the public domain if the combination itself and its
principles of operation are not in the public domain.
3. OWNER shall not use the Proprietary Property for any purpose other than the Purpose. OWNER
shall not use the Proprietary Property in connection with any expansion or enlargement of the
Plant.
4. OWNER’s failure to materially comply with the Operating Procedures shall void all
guarantees, representations and warranties, whether expressed or implied, if any, that were
given by ICM to OWNER, directly or indirectly through Fagen, concerning the performance of the
Plant that ICM reasonably determines are materially affected by OWNER’s failure to materially
comply with such Operating Procedures. OWNER agrees to indemnify, defend and hold harmless
ICM, Fagen and their respective Representatives from any and all losses, damages and expenses
including, without limitation, reasonable attorneys’ fees resulting from, relating to or
arising out of (a) Owner’s or its Representatives’ failure to materially comply with the
Operating Procedures or (b) negligent or unauthorized use of the Proprietary Property.
5. Any and all modifications to the Proprietary Property by OWNER or its Representatives shall
be the property of ICM. OWNER shall promptly notify ICM of any such modification and OWNER
agrees to assign all right, title and interest in such modification to ICM; provided, however,
OWNER shall retain the right, at no cost, to use such modification in connection with the
Purpose.
6. ICM has the exclusive right and interest in and to the Proprietary Property and the
goodwill associated therewith. OWNER will not, directly or indirectly, contest ICM’s ownership
of the Proprietary Property. OWNER’s use of the Proprietary Property does not give OWNER any
ownership interest or other interest in or to the Proprietary Property except for the limited
license granted to OWNER herein.
7. OWNER shall pay no license fee or royalty to ICM for OWNER’s use of the Proprietary
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Property pursuant to the limited license granted to OWNER, the consideration for this limited
license is included in the amounts payable by OWNER to Fagen for the construction of the Plant
under the
Contract.
8. OWNER may not assign the limited license granted herein, in whole or in part,
without the prior written consent of ICM, which will not be unreasonably withheld or delayed.
Prior to any assignment, OWNER shall obtain from such assignee a written instrument, in form
and substance reasonably acceptable to ICM, agreeing to be bound by all the terms and
provisions of this License Agreement. Any assignment of this License Agreement shall not
release OWNER from (i) its duties and obligations hereunder concerning the disclosure and use
of the Proprietary Property by OWNER or its Representatives, or (ii) damages to ICM resulting
from, or arising out of, a breach of such duties or obligations by OWNER or its
Representatives. ICM may assign its right, title and interest in the Proprietary Property, in
whole or part, subject to the limited license granted herein.
9. The Proprietary Property is confidential and proprietary. OWNER shall keep the Proprietary
Property confidential and shall use all reasonable efforts to maintain the Proprietary Property
as secret and confidential for the sole use of OWNER and its Representatives for the Purpose.
OWNER shall retain all Proprietary Property at its principal place of business and/or the
Plant. OWNER shall not at any time without ICM’s prior written consent, copy, duplicate,
record, or otherwise reproduce the Proprietary Property, in whole or in part, or otherwise make
the same available to any unauthorized person provided, OWNER shall be permitted to copy,
duplicate or otherwise reproduce the Proprietary Property in whole or in part in connection
with the Purpose so long as all such copies, duplicates or reproductions are kept at its
principal place of business and/or the Plant and are treated the same as any other Proprietary
Property. OWNER shall not disclose the Proprietary Property except to its Representatives who
are directly involved with the Purpose, and even then only to such extent as is necessary and
essential for such Representative’s involvement. OWNER shall inform such Representatives of
the confidential and proprietary nature of such information and, if requested by ICM, OWNER
shall obtain from such Representative a written instrument, in form and substance reasonably
acceptable to ICM, agreeing to be bound by all of the terms and provisions of this License
Agreement relating to the disclosure and use of the Proprietary Property. OWNER shall make all
reasonable efforts to safeguard the Proprietary Property from disclosure by its Representatives
to anyone other than permitted hereby. In the event that OWNER or its Representatives are
required by law to disclose the Proprietary Property, OWNER shall provide ICM with prompt
written notice of same so that ICM may seek a protective order or other appropriate remedy. In
the event that such protective order or other appropriate remedy is not obtained, OWNER or its
Representatives will furnish only that portion of the Proprietary Property which in the
reasonable opinion of its or their legal counsel is legally required and will exercise its
reasonable efforts to obtain reliable assurance that the Proprietary Property so disclosed will
be accorded confidential treatment.
10. OWNER agrees to indemnify ICM for any and all damages (including, without limitation,
reasonable attorneys’ fees) arising out of or resulting from any unauthorized disclosure or use
of the Proprietary Property by OWNER or its Representatives. OWNER agrees that ICM
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would be irreparably damaged by reason of a violation of the provisions contained herein and
that any remedy at law for a breach of such provisions would be inadequate. Therefore, ICM
shall be entitled to seek injunctive or other equitable relief in a court of competent
jurisdiction against OWNER or its Representatives for any unauthorized disclosure or use of the
Proprietary Property without the necessity of proving actual monetary loss or posting any bond.
It is expressly understood that the remedy described herein shall not be the exclusive remedy
of ICM for any breach of such covenants, and ICM shall be entitled to seek such other relief or
remedy, at law or in equity, to which it may be entitled as a consequence of any breach of such
duties or obligations.
11. The duties and obligations of OWNER under this License Agreement, and all provisions
relating to the enforcement of such duties and obligations shall survive and remain in full
force and effect notwithstanding any termination or expiration of the
Contract or the license
granted herein under paragraph 1 or 12.
12. ICM may terminate the limited license granted to OWNER herein upon written notice to OWNER
if OWNER willfully or wantonly (a) uses the Proprietary Property for any purpose, or (b)
discloses the Proprietary Property to anyone, in each case other than permitted herein. Upon
termination of the license under paragraph 1 or this paragraph 12, OWNER shall cease using the
Proprietary Property for any purpose (including the Purpose) and, upon request by ICM, shall
promptly return to ICM all documents or other materials in OWNER’s or its Representatives’
possession that contain Proprietary Property.
13. The laws of the State of Kansas, United States of America, shall govern the validity
of the provisions contained herein, the construction of such provisions, and the interpretation
of the rights and duties of the parties. Any legal action brought to enforce or construe the
provisions of this License Agreement shall be brought in the federal or state courts located in
Wichita, Kansas, and the parties agree to and hereby submit to the exclusive jurisdiction of
such courts and agree that they will not invoke the doctrine of forum non conveniens or other
similar defenses in any such action brought in such courts. In the event the Plant is located
in, or OWNER is organized under the laws of, a country other than the United States of America,
OWNER hereby specifically agrees that any injunctive or other equitable relief granted by a
court located in the State of Kansas, United States of America, or any award by a court located
in the State of Kansas, shall be specifically enforceable as a foreign judgment in the country
in which the Plant is located, OWNER is organized or both, as the case may be, and agrees not
to contest the validity of such relief or award in such foreign jurisdiction, regardless of
whether the laws of such foreign jurisdiction would otherwise authorize such injunctive or
other equitable relief, or award. OWNER agrees that the aggregate recovery of OWNER (and
everyone claiming by or through OWNER), as a whole, under this License Agreement and the
Contract against ICM and ICM’s Representatives, collectively, shall not exceed the amount paid
by Fagen to ICM for the issuance of this License Agreement in connection with the
Contract.
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14. OWNER hereby agrees to waive all claims against ICM and ICM’s Representatives for any
consequential damages that may arise out of or relate to this License Agreement, the
Contract
or the Proprietary Property whether arising in
contract, warranty, tort (including negligence),
strict liability or otherwise, including but not limited to losses of use, profits, business,
reputation or financing. OWNER further agrees that the aggregate recovery of OWNER and Fagen
(and everyone claiming by or through OWNER and Fagen), as a whole, against ICM and ICM’s
Representatives, collectively, for any and all claims that arise out of, relate to or result
from this License Agreement, the Proprietary Property or the
Contract, whether arising in
contract, warranty, tort (including negligence), strict liability or otherwise, shall
not exceed the amount paid by Fagen to ICM in connection with the OWNER’s project under the
Contract.
15. The terms and conditions of this License Agreement constitute the entire agreement between
the parties with respect to the subject matter hereof and supersede any prior understandings,
agreements or representations by or between the parties, written or oral. Any rule of
construction to the effect that any ambiguity is to be resolved against the drafting party
shall not be applicable in the interpretation of this License Agreement. This License
Agreement may not be modified or amended at any time without the written consent of the
parties.
16. All notices, requests, demands, reports, statements or other communications (herein
referred to collectively as “Notices”) required to be given hereunder or relating to this
License Agreement shall be in writing and shall be deemed to have been duly given if
transmitted by personal delivery or mailed by certified mail, return receipt requested, postage
prepaid, to the address of the party as set forth below. Any such Notice shall be deemed to be
delivered and received as of the date so delivered, if delivered personally, or as of the third
business day following the day sent, if sent by certified mail. Any party may, at any time,
designate a different address to which Notices shall be directed by providing written notice in
the manner set forth in this paragraph.
17. In the event that any of the terms, conditions, covenants or agreements contained in this
License Agreement, or the application of any thereof, shall be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such term, condition, covenant or
agreement shall be deemed void ab initio and shall be deemed severed from this License
Agreement. In such event, and except if such determination by a court of competent
jurisdiction materially changes the rights, benefits and obligations of the parties under this
License Agreement, the remaining provisions of this License Agreement shall remain unchanged
unaffected and unimpaired thereby and, to the extent possible, such remaining provisions shall
be construed such that the purpose of this License Agreement and the intent of the parties can
be achieved in a lawful manner.
18. The duties and obligations herein contained shall bind, and the benefits and advantages
shall inure to, the respective successors and permitted assigns of the parties hereto.
19. The waiver by any party hereto of the breach of any term, covenant, agreement or condition
herein contained shall not be deemed a waiver of any subsequent breach of the same or any other
term, covenant, agreement or condition herein, nor shall any custom, practice or course of
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dealings
arising among the parties hereto in the administration hereof be construed as a waiver or
diminution of the right of any party hereto to insist upon the strict performance by any other
party of the terms, covenants, agreement and conditions herein contained.
20. In this License Agreement, where applicable, (i) references to the singular shall include
the plural and references to the plural shall include the singular, and (ii) references to the
male, female, or neuter gender shall include references to all other such genders where the
context so requires.
IN WITNESS WHEREOF, the parties hereto have executed this License Agreement, the Effective Date of
which is indicated on page 1 of this License Agreement.
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OWNER:
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ICM: |
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US Bio Albert City, LLC
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ICM, Inc. |
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By: /s/ DAVE VANDER GRIEND |
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Title: Vice President and Chief Financial
Officer
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Title: President |
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Date Signed: 08/26/05
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Date Signed: 10/03/05 |
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Address for giving notices:
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Address for giving notices: |
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111 Main Avenue
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301 N First Street |
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Colwich, KS 67030 |
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EXHIBIT E
START-UP SERVICES TO BE PROVIDED TO OWNER
Start-up services will be provided to Owner as follows: Electrical and instrumentation
checkout, and approximately two (2) weeks of on-site training at the US Energy Partners Plant
(USEP) in Russell, Kansas, or other location, such to be provided for project Owner employees,
including operators, laboratory personnel, general, plant and maintenance managers. (Other
personnel of the project Owner can be provided such on-site training by separate agreement and as
time is available.) All trainer and costs associated with the trainer, including labor and all
training materials will be provided to Owner without cost. The Owner will be responsible for all
travel and related expenses of its employees and the project Owner will pay all wages for its
personnel during the training and will cover all other expenses related to the on-site training.
Said training services will include training on computers, lab procedures, field operating
procedures, and overall plant section performance expectations. Two persons shall be provided to
lead the Owner during the initialization and start-up of the plant. The Owner will provide all
other personnel and pay all other costs related to start-up of the plant. Personnel will be
maintained on-site by Design-Builder or a subcontractor until all performance testing is complete
and accepted by the Owner, unless the Owner fails to execute or allow performance testing within 30
days after receiving a written request from Design-Builder or its subcontractor to begin
performance testing or the work on the project work is substantially stopped for any reason for a
period of 30 days or more. Design-Builder or its subcontractor will provide an additional one
month on-site support after Substantial Completion start-up of the plant and from date of
Substantial Completion start-up will provide six (6) months of off-site technical and operating
procedure support by telephone, computer modem, the Internet and email.
Design-Builder shall deliver to Owner all manuals, instructions or other written materials
that it receives from equipment manufacturers and suppliers/vendors of equipment.
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Standard Form of General Conditions
of Contract Between Owner and Design-Builder
This document has important legal consequences. Consultation with
an attorney is recommended with respect to its completion or modification.
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General |
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Design-Builder’s Services and Responsibilities |
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Owner’s Services and Responsibilities |
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5 |
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Hazardous Conditions and Differing Site Conditions |
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6 |
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Insurance and Bonds |
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Payment |
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Indemnification |
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Time |
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Stop Work and Termination for Cause |
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Miscellaneous |
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| DBIA Document No. 535 • Standard Form of General Conditions
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| of Contract Between Owner and Design — Builder |
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| © 1998 Design-Build Institute of America |
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Article 1
General
1.1 Mutual Obligations
1.1.1 Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed
on the basis of trust and good faith, to permit each party to realize the benefits afforded under
the
Contract Documents.
1.2 Basic Definitions
1.2.1 Agreement refers to the executed
contract between Owner and Design-Builder under either DBIA
Document No. 525,
Standard Form of Agreement Between Owner and Design-Builder C Lump Sum
(1998 Edition) or DBIA Document No. 530,
Standard Form of Agreement Between Owner and
Design-Builder C Cost Plus Fee with an Option for a Guaranteed Maximum Price (1998 Edition).
1.2.2 Day or
Days shall mean calendar days unless otherwise specifically noted in the
Contract
Documents.
1.2.3 Design Consultant is a qualified, licensed design professional who is not an employee of
Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under
contract
with Design-Builder or Subcontractor, to furnish design services required under the
Contract
Documents.
1.2.4 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be
hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal
of which are regulated by applicable Legal Requirements.
1.2.5 General Conditions of Contract refer to this DBIA Document No. 535,
Standard Form of General
Conditions of Contract Between Owner and Design-Builder (1998 Edition).
1.2.6 Legal Requirements are all applicable federal, state and local laws, codes, ordinances,
rules, regulations, orders and decrees of any government or quasi-government entity having
jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work.
1.2.7 Owner’s Project Criteria are developed by or for Owner to describe Owner’s program
requirements and objectives for the Project, including use, space, price, time, site and
expandability requirements, as well as submittal requirements and other requirements governing
Design-Builder’s performance of the Work. Owner’s Project Criteria may include conceptual
documents, design criteria, performance requirements and other Project-specific technical materials
and requirements.
1.2.8 Site is the land or premises on which the Project is located.
1.2.9 Subcontractor is any person or entity retained by Design-Builder as an independent contractor
to perform a portion of the Work and shall include materialmen and suppliers.
1.2.10 Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent
contractor to perform any portion of a Subcontractor’s Work and shall include materialmen and
suppliers.
1.2.11 Substantial Completion is the date on which the Work, or an agreed upon portion of the Work,
is sufficiently complete so that Owner can occupy and use the Project or a portion thereof for its
intended purposes.
1.2.12 Work is comprised of all Design-Builder’s design, construction and other services required
by the
Contract Documents, including procuring and furnishing all materials, equipment, services
and labor reasonably inferable from the
Contract Documents.
Article 2
Design-Builder’s Services and Responsibilities
2.1 General Services
2.1.1 Design-Builder’s Representative shall be reasonably available to Owner and shall have the
necessary expertise and experience required to supervise the Work. Design-Builder’s Representative
shall communicate regularly with Owner and shall be vested with the authority to act on behalf of
Design-Builder. Design-Builder’s
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Representative may be replaced only with the mutual agreement of Owner and Design-Builder.
2.1.2 Design-Builder shall provide Owner with a monthly status report detailing the progress of the
Work, including whether (i) the Work is proceeding according to schedule, (ii) discrepancies,
conflicts, or ambiguities exist in the
Contract Documents that require resolution, (iii) health and
safety issues exist in connection with the Work, and (iv) other items require resolution so as not
to jeopardize Design-Builder’s ability to complete the Work for the
Contract Price and within the
Contract Time(s).
2.1.3 Design-Builder shall prepare and submit, at least three (3) days prior to the meeting
contemplated by Section 2.1.4 hereof, a schedule for the execution of the Work for Owner’s review
and response. The schedule shall indicate the dates for the start and completion of the various
stages of Work, including the dates when Owner information and approvals are required to enable
Design-Builder to achieve the
Contract Time(s). The schedule shall be revised as required by
conditions and progress of the Work, but such revisions shall not relieve Design-Builder of its
obligations to complete the Work within the
Contract Time(s), as such dates may be adjusted in
accordance with the
Contract Documents. Owner’s review of and response to the schedule shall not
be construed as relieving Design-Builder of its complete and exclusive control over the means,
methods, sequences and techniques for executing the Work.
2.1.4 The parties will meet within seven (7) days after execution of the Agreement to discuss
issues affecting the administration of the Work and to implement the necessary procedures,
including those relating to submittals and payment, to facilitate the ability of the parties to
perform their obligations under the
Contract Documents.
2.2 Design Professional Services
2.2.1 Design-Builder shall, consistent with applicable state licensing laws, provide through
qualified, licensed design professionals employed by Design-Builder, or procured from qualified,
independent licensed Design Consultants, the necessary design services, including architectural,
engineering and other design professional services, for the preparation of the required drawings,
specifications and other design submittals to permit Design-Builder to complete the Work consistent
with the
Contract Documents. Nothing in the
Contract Documents is intended or deemed to create any
legal or contractual relationship between Owner and any Design Consultant.
2.3 Standard of Care for Design Professional Services
2.3.1 The standard of care for all design professional services performed to execute the Work shall
be the care and skill ordinarily used by members of the design profession practicing under similar
conditions at the same time and locality of the Project. Notwithstanding the preceding sentence,
if the parties agree upon specific performance standards for any aspect of the Work, which
standards are to be set forth in an exhibit to the Agreement entitled “Performance Standard
Requirements,” the design professional services shall be performed to achieve such standards.
2.4 Design Development Services
2.4.1 Design-Builder and Owner shall, consistent with any applicable provision of the
Contract
Documents, agree upon any interim design submissions that Owner may wish to review, which interim
design submissions may include design criteria, drawings, diagrams and specifications setting forth
the Project requirements. On or about the time of the scheduled submissions, Design-Builder and
Owner shall meet and confer about the submissions, with Design-Builder identifying during such
meetings, among other things, the evolution of the design and any significant changes or deviations
from the
Contract Documents, or, if applicable, previously submitted design submissions. Minutes
of the meetings will be maintained by Design-Builder and provided to all attendees for review.
Following the design review meeting, Owner shall review and approve the interim design submissions
in a time that is consistent with the turnaround times set forth in Design-Builder’s schedule.
2.4.2 Design-Builder shall submit to Owner Construction Documents setting forth in detail drawings
and specifications describing the requirements for construction of the Work. The Construction
Documents shall be consistent with the latest set of interim design submissions, as such
submissions may have been modified in a design review meeting. The parties shall have a design
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review meeting to discuss, and Owner shall review and approve, the Construction Documents in
accordance with the procedures set forth Section 2.4.1 above. Design-Builder shall proceed with
construction in accordance with the approved Construction Documents and shall submit one set of
approved Construction Documents to Owner prior to commencement of construction.
2.4.3 Owner’s review and approval of interim design submissions and the Construction Documents is
for the purpose of mutually establishing a conformed set of
Contract Documents compatible with the
requirements of the Work. Neither Owner’s review nor approval of any interim design submissions
and Construction Documents shall be deemed to transfer any design liability from Design-Builder to
Owner.
2.4.4 To the extent not prohibited by the
Contract Documents or Legal Requirements, Design-Builder
may prepare interim design submissions and Construction Documents for a portion of the Work to
permit construction to proceed on that portion of the Work prior to completion of the Construction
Documents for the entire Work.
2.5 Legal Requirements
2.5.1 Design-Builder shall perform the Work in accordance with all Legal Requirements and shall
provide all notices applicable to the Work as required by the Legal Requirements.
2.5.2 The
Contract Price and/or
Contract Time(s) shall be adjusted to compensate Design-Builder for
the effects of any changes in the Legal Requirements enacted after the date of the Agreement
affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the
date of the Agreement, the date the parties agree upon the Guaranteed Maximum Price. Such effects
may include, without limitation, revisions Design-Builder is required to make to the Construction
Documents because of changes in Legal Requirements.
2.6 Government Approvals and Permits
2.6.1 Except as identified in an Owner’s Permit List attached as an exhibit to the Agreement,
Design-Builder shall obtain and pay for all necessary permits, approvals, licenses, government
charges and inspection fees required for the prosecution of the Work by any government or
quasi-government entity having jurisdiction over the Project.
2.6.2 Design-Builder shall provide reasonable assistance to Owner in obtaining those permits,
approvals and licenses that are Owner’s responsibility.
2.7 Design-Builder’s Construction Phase Services
2.7.1 Unless otherwise provided in the
Contract Documents to be the responsibility of Owner or a
separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary
supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary
utilities and other temporary facilities to permit Design-Builder to complete construction of the
Project consistent with the
Contract Documents.
2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite
expertise, skill and competence to satisfy the requirements of the
Contract Documents.
Design-Builder shall at all times exercise complete and exclusive control over the means, methods,
sequences and techniques of construction.
2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed and qualified to
perform the Work consistent with the
Contract Documents. Owner may reasonably object to
Design-Builder’s selection of any Subcontractor, provided that the
Contract Price and/or
Contract
Time(s) shall be adjusted to the extent that Owner’s decision impacts Design-Builder’s cost and/or
time of performance.
2.7.4 Design-Builder assumes responsibility to Owner for the proper performance of the Work of
Subcontractors and any acts and omissions in connection with such performance. Nothing in the
Contract Documents is intended or deemed to create any legal or contractual relationship between
Owner and any Subcontractor or Sub-Subcontractor, including but not limited to any third-party
beneficiary rights.
2.7.5 Design-Builder shall coordinate the activities of all Subcontractors. If Owner performs
other work on the Project or at the Site with separate
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contractors under Owner’s control, Design-Builder agrees to reasonably cooperate and coordinate its
activities with those of such separate contractors so that the Project can be completed in an
orderly and coordinated manner without unreasonable disruption.
2.7.6 Design-Builder shall keep the Site reasonably free from debris, trash and construction wastes
to permit Design-Builder to perform its construction services efficiently, safely and without
interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a
portion of the Work, Design-Builder shall remove all debris, trash, construction wastes, materials,
equipment, machinery and tools arising from the Work or applicable portions thereof to permit Owner
to occupy the Project or a portion of the Project for its intended use.
2.8 Design-Builder’s Responsibility for Project Safety
2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as to
prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting,
(ii) the Work, including materials and equipment incorporated into the Work or stored on-Site or
off-Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes
responsibility for implementing and monitoring all safety precautions and programs related to the
performance of the Work. Design-Builder shall, prior to commencing construction, designate a
Safety Representative with the necessary qualifications and experience to supervise the
implementation and monitoring of all safety precautions and programs related to the Work. Unless
otherwise required by the
Contract Documents, Design-Builder’s Safety Representative shall be an
individual stationed at the Site who may have responsibilities on the Project in addition to
safety. The Safety Representative shall make routine daily inspections of the Site and shall hold
weekly safety meetings with Design-Builder’s personnel, Subcontractors and others as applicable.
2.8.2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to
safety, as well as any Owner-specific safety requirements set forth in the
Contract Documents,
provided that such Owner-specific requirements do not violate any applicable Legal Requirement.
Design-Builder will immediately report in writing any safety-related injury, loss, damage or
accident arising from the Work to Owner
’s Representative and, to the extent mandated by Legal
Requirements, to all government or quasi-government authorities having jurisdiction over
safety-related matters involving the Project or the Work.
2.8.3 Design-Builder’s responsibility for safety under this Section 2.8 is not intended in any way
to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and
responsibility for (i) complying with all Legal Requirements, including those related to health and
safety matters, and (ii) taking all necessary measures to implement and monitor all safety
precautions and programs to guard against injury, losses, damages or accidents resulting from their
performance of the Work.
2.9 Design-Builder’s Warranty
2.9.1 Design-Builder warrants to Owner that the construction, including all materials and equipment
furnished as part of the construction, shall be new unless otherwise specified in the
Contract
Documents, of good quality, in conformance with the
Contract Documents and free of defects in
materials and workmanship. Design-Builder’s warranty obligation excludes defects caused by abuse,
alterations, or failure to maintain the Work by persons other than Design-Builder or anyone for
whose acts Design-Builder may be liable. Nothing in this warranty is intended to limit any
manufacturer’s warranty which provides Owner with greater warranty rights than set forth in this
Section 2.9 or the
Contract Documents. Design-Builder will provide Owner with all manufacturers’
warranties upon Substantial Completion.
2.10 Correction of Defective Work
2.10.1 Design-Builder agrees to correct any Work that is found to not be in conformance with the
Contract Documents, including that part of the Work subject to Section 2.9 hereof, within a period
of one year from the date of Substantial Completion of the Work or any portion of the Work, or
within such longer period to the extent required by the
Contract Documents.
2.10.2 Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the
Work
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is not in conformance with the
Contract Documents, take meaningful steps to commence correction of
such nonconforming Work, including the correction, removal or replacement of the nonconforming Work
and any damage caused to other parts of the Work affected by the nonconforming Work. If
Design-Builder fails to commence the necessary steps within such seven (7) day period, Owner, in
addition to any other remedies provided under the
Contract Documents, may provide Design-Builder
with written notice that Owner will commence correction of such nonconforming Work with its own
forces. If Owner does perform such corrective Work, Design-Builder shall be responsible for all
reasonable costs incurred by Owner in performing such correction. If the nonconforming Work
creates an emergency requiring an immediate response, the seven (7) day periods identified herein
shall be deemed inapplicable.
2.10.3 The one year period referenced in Section 2.10.1 above applies only to Design-Builder’s
obligation to correct nonconforming Work and is not intended to constitute a period of limitations
for any other rights or remedies Owner may have regarding Design-Builder’s other obligations under
the
Contract Documents.
Article 3
Owner’s Services and Responsibilities
3.1 Duty to Cooperate
3.1.1 Owner shall, throughout the performance of the Work, cooperate with Design-Builder and
perform its responsibilities, obligations and services in a timely manner to facilitate
Design-Builder’s timely and efficient performance of the Work and so as not to delay or interfere
with Design-Builder’s performance of its obligations under the
Contract Documents.
3.1.2 Owner shall provide timely reviews and approvals of interim design submissions and
Construction Documents consistent with the turnaround times set forth in Design-Builder’s schedule.
3.2 Furnishing of Services and Information
3.2.1 Unless expressly stated to the contrary in the
Contract Documents, Owner shall provide, at
its own cost and expense, for Design-Builder’s information and use the following, all of which
Design-Builder is entitled to rely upon in performing the Work:
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Surveys describing the property, boundaries, topography and reference points
for use during construction, including existing service and utility lines; |
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Geotechnical studies describing subsurface conditions, and other surveys
describing other latent or concealed physical conditions at the Site; |
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Temporary and permanent easements, zoning and other requirements and
encumbrances affecting land use, or necessary to permit the proper design and
construction of the Project and enable Design-Builder to perform the Work; |
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A legal description of the Site; |
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To the extent available, as-built and record drawings of any existing
structures at the Site; and |
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To the extent available, environmental studies, reports and impact statements
describing the environmental conditions, including Hazardous Conditions, in existence
at the Site. |
3.2.2 Owner is responsible for securing and executing all necessary agreements with adjacent land
or property owners that are necessary to enable Design-Builder to perform the Work. Owner is
further responsible for all costs, including attorneys’ fees, incurred in securing these necessary
agreements.
3.3 Financial Information
3.3.1 At Design-Builder’s request, Owner shall promptly furnish reasonable evidence satisfactory to
Design-Builder that Owner has adequate funds available and committed to fulfill all of Owner’s
contractual obligations under the
Contract Documents. If Owner fails to furnish such financial
information in a timely manner, Design-Builder may
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stop Work under Section 11.3 hereof or exercise
any other right permitted under the
Contract Documents.
3.3.2 Design-Builder shall cooperate with the reasonable requirements of Owner’s lenders or
other financial sources. Notwithstanding the preceding sentence, after execution of the Agreement
Design-Builder shall have no obligation to execute for Owner or Owner’s lenders or other financial
sources any documents or agreements that require Design-Builder to assume obligations or
responsibilities greater than those existing obligations Design-Builder has under the
Contract
Documents.
3.4 Owner’s Representative
3.4.1 Owner’s Representative shall be responsible for providing Owner-supplied information and
approvals in a timely manner to permit Design-Builder to fulfill its obligations under the
Contract
Documents. Owner’s Representative shall also provide Design-Builder with prompt notice if it
observes any failure on the part of Design-Builder to fulfill its contractual obligations,
including any errors, omissions or defects in the performance of the Work.
3.5 Government Approvals and Permits
3.5.1 Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges
and inspection fees set forth in the Owner’s Permit List attached as an exhibit to the Agreement.
3.5.2 Owner shall provide reasonable assistance to Design-Builder in obtaining those permits,
approvals and licenses that are Design-Builder’s responsibility.
3.6 Owner’s Separate Contractors
3.6.1 Owner is responsible for all work performed on the Project or at the Site by separate
contractors under Owner’s control. Owner shall contractually require its separate contractors to
cooperate with, and coordinate their activities so as not to interfere with, Design-Builder in
order to enable Design-Builder to timely complete the Work consistent with the
Contract Documents.
Article 4
Hazardous Conditions and Differing Site Conditions
4.1 Hazardous Conditions
4.1.1 Unless otherwise expressly provided in the
Contract Documents to be part of the Work,
Design-Builder is not responsible for any Hazardous Conditions encountered at the Site. Upon
encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected
area and duly notify Owner and, if required by Legal Requirements, all government or
quasi-government entities with jurisdiction over the Project or Site.
4.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, Owner shall take the
necessary measures required to ensure that the Hazardous Conditions are remediated or rendered
harmless. Such necessary measures shall include Owner retaining qualified independent experts to
(i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have been
encountered, (ii) prescribe the remedial measures that Owner must take either to remove the
Hazardous Conditions or render the Hazardous Conditions harmless.
4.1.3 Design-Builder shall be obligated to resume Work at the affected area of the Project only
after Owner’s expert provides it with written certification that (i) the Hazardous Conditions have
been removed or rendered harmless and (ii) all necessary approvals have been obtained from all
government and quasi-government entities having jurisdiction over the Project or Site.
4.1.4 Design-Builder will be entitled, in accordance with these General Conditions of
Contract, to
an adjustment in its
Contract Price and/or
Contract Time(s) to the extent Design-Builder’s cost
and/or time of performance have been adversely impacted by the presence of Hazardous Conditions.
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4.1.5 To the fullest extent permitted by law, Owner shall indemnify, defend and hold
harmless Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly
for any of them, and their officers, directors, employees and agents, from and against any and all
claims, losses, damages, liabilities and expenses, including attorneys’ fees and expenses, arising
out of or resulting from the presence, removal or remediation of Hazardous Conditions at the Site.
4.1.6 Notwithstanding the preceding provisions of this Section 4.1, Owner is not responsible for
Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose
acts they may be liable. Design-Builder shall indemnify, defend and hold harmless Owner and
Owner’s officers, directors, employees and agents from and against all claims, losses, damages,
liabilities and expenses, including attorneys’ fees and expenses, arising out of or resulting from
those Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for
whose acts they may be liable.
4.2 Differing Site Conditions
4.2.1 Concealed or latent physical conditions or subsurface conditions at the Site that (i)
materially differ from the conditions indicated in the
Contract Documents or (ii) are of an unusual
nature, differing materially from the conditions ordinarily encountered and generally recognized as
inherent in the Work are collectively referred to herein as
“Differing Site Conditions.” If
Design-Builder encounters a Differing Site Condition, Design-Builder will be entitled to an
adjustment in the
Contract Price and/or
Contract Time(s) to the extent Design-Builder’s cost and/or
time of performance are adversely impacted by the Differing Site Condition.
4.2.2 Upon encountering a Differing Site Condition, Design-Builder shall provide prompt written
notice to Owner of such condition, which notice shall not be later than fourteen (14) days after
such condition has been encountered. Design-Builder shall, to the extent reasonably possible,
provide such notice before the Differing Site Condition has been substantially disturbed or
altered.
Article 5
Insurance and Bonds
5.1 Design-Builder’s Insurance Requirements
5.1.1 Design-Builder is responsible for procuring and maintaining from insurance companies
authorized to do business in the state in which the Project is located, and with a minimum rating
set forth in the Agreement, the following insurance coverages for certain claims which may arise
from or out of the performance of the Work and obligations under the
Contract Documents:
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Coverage for claims arising under workers’ compensation, disability and other
similar employee benefit laws applicable to the Work; |
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Coverage for claims by Design-Builder’s employees for bodily injury, sickness,
disease, or death; |
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Coverage for claims by any person other than Design-Builder’s employees for
bodily injury, sickness, disease, or death; |
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Coverage for usual personal injury liability claims for damages sustained by a
person as a direct or indirect result of Design-Builder’s employment of the person, or
sustained by any other person; |
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Coverage for claims for damages (other than to the Work) because of injury to
or destruction of tangible property, including loss of use; |
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Coverage for claims of damages because of personal injury or death, or property
damage resulting from ownership, use and maintenance of any motor vehicle; and |
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Coverage for contractual liability claims arising out of Design-Builder’s
obligations under Section 7.4.1 hereof. |
5.1.2 Design-Builder’s liability insurance required by Section 5.1.1 above shall be written
for the coverage amounts set forth in the Agreement and shall include completed operations
insurance for the period of time set forth in the Agreement.
5.1.3 Design-Builder’s liability insurance set forth in Sections 5.1.1.1 through 5.1.1.7 above
shall specifically delete any design-build or similar exclusions that could compromise coverages
because of the design-build delivery of the Project.
5.1.4 To the extent Owner requires Design-Builder or any Design Consultant to provide professional
liability insurance for claims arising from the negligent performance of design services by
Design-Builder or the Design Consultant, the coverage limits, duration and other specifics of such
insurance shall be as set forth in the Agreement. Any professional liability shall specifically
delete any design-build or similar exclusions that could compromise coverages because of the
design-build delivery of the Project. Such policies shall be provided prior to the commencement of
any design services hereunder.
5.1.5 Prior to commencing any construction services hereunder, Design-Builder shall provide Owner
with certificates evidencing that (i) all insurance obligations required by the
Contract Documents
are in full force and in effect and will remain in effect for the duration required by the
Contract
Documents and (ii) no insurance coverage will be canceled, renewal refused, or materially changed
unless at least thirty (30) days prior written notice is given to Owner.
5.2 Owner’s Liability Insurance
5.2.1 Owner shall procure and maintain from insurance companies authorized to do business in the
state in which the Project is located such liability insurance to protect Owner from claims which
may arise from the performance of Owner’s obligations under the
Contract Documents or Owner’s
conduct during the course of the Project.
5.3 Owner’s Property Insurance
5.3.1 Unless otherwise provided in the
Contract Documents, Owner shall procure and maintain from
insurance companies authorized to do business in the state in which the Project is located property
insurance upon the entire Project to the full insurable value of the Project, including
professional fees, overtime premiums and all other expenses incurred to replace or repair the
insured property. The property insurance obtained by Owner shall include as additional insureds
the interests of Owner, Design-Builder, Design Consultants, Subcontractors and Sub-Subcontractors,
and shall insure against the perils of fire and extended coverage, theft, vandalism, malicious
mischief, collapse, flood, earthquake, debris removal and other perils or causes of loss as called
for in the
Contract Documents. The property insurance shall include physical loss or damage to the
Work, including materials and equipment in transit, at the Site or at another location as may be
indicated in Design-Builder’s Application for Payment and approved by Owner.
5.3.2 Unless the
Contract Documents provide otherwise, Owner shall procure and maintain boiler and
machinery insurance that will include the interests of Owner, Design-Builder, Design Consultants,
Subcontractors and Sub-Subcontractors.
5.3.3 Prior to Design-Builder commencing any Work, Owner shall provide Design-Builder with
certificates evidencing that (i) all Owner’s insurance obligations required by the
Contract
Documents are in full force and in effect and will remain in effect until Design-Builder has
completed all of the Work and has received final payment from Owner and (ii) no insurance coverage
will be canceled, renewal refused, or materially changed unless at least thirty (30) days prior
written notice is given to Design-Builder. Owner’s property insurance shall not lapse or be
canceled if Owner occupies a portion of the Work pursuant to Section 6.6.3 hereof. Owner shall
provide Design-Builder with the necessary endorsements from the insurance company prior to
occupying a portion of the Work.
5.3.4 Any loss covered under Owner’s property insurance shall be adjusted with Owner and
Design-Builder and made payable to both of them as
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trustees for the insureds as their interests may
appear, subject to any applicable mortgage clause. All insurance proceeds received as a result of
any loss will be placed in a separate account and distributed in accordance with such agreement as
the interested parties may reach. Any disagreement
concerning the distribution of any proceeds will be resolved in accordance with Article 10 hereof.
5.3.5 Owner and Design-Builder waive against each other and Owner’s separate contractors,
Design Consultants, Subcontractors, agents and employees of each and all of them, all damages
covered by property insurance provided herein, except such rights as they may have to the proceeds
of such insurance. Design-Builder and Owner shall, where appropriate, require similar waivers of
subrogation from Owner’s separate contractors, Design Consultants and Subcontractors and shall
require each of them to include similar waivers in their
contracts.
5.4 Bonds and Other Performance Security
5.4.1 If Owner requires Design-Builder to obtain performance and labor and material payment bonds,
or other forms of performance security, the amount, form and other conditions of such security
shall be as set forth in the Agreement.
Article 6
Payment
6.1 Schedule of Values
6.1.1 Within ten (10) days of execution of the Agreement, Design-Builder shall submit for Owner’s
review and approval a schedule of values for all of the Work. The Schedule of Values will (i)
subdivide the Work into its respective parts, (ii) include values for all items comprising the Work
and (iii) serve as the basis for monthly progress payments made to Design-Builder throughout the
Work.
6.2 Monthly Progress Payments
6.2.1 On or before the date established in the Agreement, Design-Builder shall submit for Owner’s
review and approval its Application for Payment requesting payment for all Work performed as of the
date of the Application for Payment. The Application for Payment shall be accompanied by all
supporting documentation required by the
Contract Documents and/or established at the meeting
required by Section 2.1.4 hereof.
6.2.2 The Application for Payment may request payment for equipment and materials not yet
incorporated into the Project, provided that (i) Owner is satisfied that the equipment and
materials are
suitably stored at either the Site or another acceptable location, (ii) the equipment and materials
are protected by suitable insurance and (iii) upon payment, Owner will receive the equipment and
materials free and clear of all liens and encumbrances.
6.2.3 The Application for Payment shall constitute Design-Builder’s representation that the Work
has been performed consistent with the
Contract Documents, has progressed to the point indicated in
the Application for Payment, and that title to all Work will pass to Owner free and clear of all
claims, liens, encumbrances, and security interests upon the incorporation of the Work into the
Project, or upon Design-Builder’s receipt of payment, whichever occurs earlier.
6.3 Withholding of Payments
6.3.1 On or before the date established in the Agreement, Owner shall pay Design-Builder all
amounts properly due. If Owner determines that Design-Builder is not entitled to all or part of an
Application for Payment, it will notify Design-Builder in writing at least five (5) days prior to
the date payment is due. The notice shall indicate the specific amounts Owner intends to withhold,
the reasons and contractual basis for the withholding, and the specific measures Design-Builder
must take to rectify Owner’s concerns. Design-Builder and Owner will attempt to resolve Owner’s
concerns prior to the date payment is due. If the parties cannot resolve such concerns,
Design-Builder may pursue its rights under the
Contract Documents, including those under Article 10
hereof.
6.3.2 Notwithstanding anything to the contrary in the
Contract Documents, Owner shall pay
Design-Builder all undisputed amounts in an Application for Payment within the times required by
the Agreement.
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6.4 Right to Stop Work and Interest
6.4.1 If Owner fails to pay Design-Builder any amount that becomes due, Design-Builder, in addition
to all other remedies provided in the
Contract Documents, may stop Work pursuant to
Section 11.3 hereof. All payments due and unpaid shall bear interest at the rate set forth in the
Agreement.
6.5 Design-Builder’s Payment Obligations
6.5.1 Design-Builder will pay Design Consultants and Subcontractors, in accordance with its
contractual obligations to such parties, all the amounts Design-Builder has received from Owner on
account of their work. Design-Builder will impose similar requirements on Design Consultants and
Subcontractors to pay those parties with whom they have contracted. Design-Builder will indemnify
and defend Owner against any claims for payment and mechanic’s liens as set forth in Section 7.3
hereof.
6.6 Substantial Completion
6.6.1 Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in
the
Contract Documents, a portion of the Work, is substantially complete. Within five (5) days of
Owner’s receipt of Design-Builder’s notice, Owner and Design-Builder will jointly inspect such Work
to verify that it is substantially complete in accordance with the requirements of the
Contract
Documents. If such Work is substantially complete, Owner shall prepare and issue a Certificate of
Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or
portion thereof, (ii) the remaining items of Work that have to be completed before final payment,
(iii) provisions (to the extent not already provided in the
Contract Documents) establishing
Owner’s and Design-Builder’s responsibility for the Project’s security, maintenance, utilities and
insurance pending final payment and (iv) an acknowledgment that warranties commence to run on the
date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial
Completion.
6.6.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work,
Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire
Work or completed portion of the Work, less an amount equal to the reasonable value of all
remaining or incomplete items of Work as noted in the Certificate of Substantial Completion.
6.6.3 Owner, at its option, may use a portion of the Work which has been determined to be
substantially complete, provided, however, that (i) a Certificate of Substantial Completion has
been issued for the portion of Work addressing the items set forth in Section 6.6.1 above, (ii)
Design-Builder and Owner have obtained the consent of their sureties and insurers, and to the
extent applicable, the appropriate government authorities having jurisdiction over the Project, and
(iii) Owner and Design-Builder agree that Owner’s use or occupancy will not interfere with
Design-Builder’s completion of the remaining Work.
6.7 Final Payment
6.7.1 After receipt of a Final Application for Payment from Design-Builder, Owner shall make final
payment by the time required in the Agreement, provided that Design-Builder has completed all of
the Work in conformance with the
Contract Documents.
6.7.2 At the time of submission of its Final Application for Payment, Design-Builder shall provide
the following information:
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an affidavit that there are no claims, obligations or liens outstanding or
unsatisfied for labor, services, material, equipment, taxes or other items performed,
furnished or incurred for or in connection with the Work which will in any way affect
Owner’s interests; |
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a general release executed by Design-Builder waiving, upon receipt of final
payment by Design-Builder, all claims, except those claims previously made in writing
to Owner and remaining unsettled at the time of final payment; |
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consent of Design-Builder’s surety, if any, to final payment; |
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all operating manuals, warranties and other deliverables required by the
Contract Documents; and |
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certificates of insurance confirming that required coverages will remain in
effect consistent with the requirements of the Contract Documents. |
6.7.3 Upon making final payment, Owner waives all claims against Design-Builder except claims
relating to (i) Design-Builder’s failure to satisfy its
payment obligations, if such failure affects Owner’s interests, (ii) Design-Builder’s failure to
complete the Work consistent with the
Contract Documents, including defects appearing after
Substantial Completion and (iii) the terms of any special warranties required by the
Contract
Documents.
Article 7
Indemnification
7.1 Patent and Copyright Infringement
7.1.1 Design-Builder shall defend any action or proceeding brought against Owner based on any claim
that the Work, or any part thereof, or the operation or use of the Work or any part thereof,
constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner
shall give prompt written notice to Design-Builder of any such action or proceeding and will
reasonably provide authority, information and assistance in the defense of same. Design-Builder
shall indemnify and hold harmless Owner from and against all damages and costs, including but not
limited to attorneys’ fees and expenses awarded against Owner or Design-Builder in any such action
or proceeding. Design-Builder agrees to keep Owner informed of all developments in the defense of
such actions.
7.1.2 If Owner is enjoined from the operation or use of the Work, or any part thereof, as the
result of any patent or copyright suit, claim, or proceeding, Design-Builder shall at its sole
expense take reasonable steps to procure the right to operate or use the Work. If Design-Builder
cannot so procure such right within a reasonable time, Design-Builder shall promptly, at
Design-Builder’s option and at Design-Builder’s expense, (i) modify the Work so as to avoid
infringement of any such patent or copyright or (ii) replace said Work with Work that does not
infringe or violate any such patent or copyright.
7.1.3 Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding based
on infringement or violation of a patent or copyright (i) relating solely to a particular process
or product of a particular manufacturer specified by Owner and not offered or recommended by
Design-Builder to Owner or (ii) arising from modifications to the Work by Owner or its agents after
acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the
preceding sentence, Owner shall defend, indemnify and hold harmless Design-Builder to the same
extent Design-Builder is obligated to defend, indemnify and hold harmless Owner in Section 7.1.1
above.
7.1.4 The obligations set forth in this Section 7.1 shall constitute the sole agreement between the
parties relating to liability for infringement of violation of any patent or copyright.
7.2 Tax Claim Indemnification
7.2.1 If, in accordance with Owner’s direction, an exemption for all or part of the Work is claimed
for taxes, Owner shall indemnify, defend and hold harmless Design-Builder from and against any
liability, penalty, interest, fine, tax assessment, attorneys’ fees or other expenses or costs
incurred by Design-Builder as a result of any action taken by Design-Builder in accordance with
Owner’s directive.
7.3 Payment Claim Indemnification
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Providing that Owner is not in breach of its contractual obligation to make payments to
Design-Builder for the Work, Design-Builder shall indemnify, defend and hold harmless Owner
from any claims or mechanic’s liens brought against Owner or against the Project as a result
of the failure of Design-Builder, or those for whose acts it is responsible, to pay for any
services, materials, labor, equipment, taxes or other items or obligations furnished or
incurred for or in connection with the Work. Within three (3) days of receiving written
notice from Owner that such a claim or mechanic’s lien has been filed, Design-Builder shall
commence to take the steps necessary to discharge said claim or lien, including, if necessary,
the furnishing of a mechanic’s lien bond. If Design-Builder fails to do so,
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Owner will have
the right to discharge the claim or lien and hold Design-Builder liable for costs and expenses
incurred, including attorneys’ fees. |
7.4 Design-Builder’s General Indemnification
7.4.1 Design-Builder, to the fullest extent permitted by law, shall indemnify, hold harmless and
defend Owner, its officers, directors, employees and agents
from and against claims, losses, damages, liabilities, including attorneys’ fees and expenses, for
bodily injury, sickness or death, and property damage or destruction (other than to the Work
itself) to the extent resulting from the negligent acts or omissions of Design-Builder, Design
Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for
whose acts any of them may be liable.
7.4.2 If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed
directly or indirectly by any of them or anyone for whose acts any of them may be liable has a
claim against Owner, its officers, directors, employees, or agents, Design-Builder’s indemnity
obligation set forth in Section 7.4.1 above shall not be limited by any limitation on the amount of
damages, compensation or benefits payable by or for Design-Builder, Design Consultants,
Subcontractors, or other entity under any employee benefit acts, including workers’ compensation or
disability acts.
7.5 Owner’s General Indemnification
7.5.1 Owner, to the fullest extent permitted by law, shall indemnify, hold harmless and defend
Design-Builder and any of Design-Builder’s officers, directors, employees, or agents from and
against claims, losses, damages, liabilities, including attorneys’ fees and expenses, for bodily
injury, sickness or death, and property damage or destruction (other than to the Work itself) to
the extent resulting from the negligent acts or omissions of Owner, it’s officers, directors,
employees, agents, and Owner’s separate contractors or anyone for whose acts any of them may be
liable.
Article 8
Time
8.1 Obligation to Achieve the Contract Times
8.1.1 Design-Builder agrees that it will commence performance of the Work and achieve the
Contract
Time(s) in accordance with Article 5 of the Agreement.
8.2 Delays to the Work
8.2.1 If Design-Builder is delayed in the performance of the Work due to acts, omissions,
conditions, events, or circumstances beyond its control and due to no fault of its own or those for
whom Design-Builder is responsible, the
Contract Time(s) for performance shall be reasonably
extended by Change Order. By way of example, events that will entitle Design-Builder to an
extension of the
Contract Time(s) include acts or omissions of Owner or anyone under Owner’s
control (including separate contractors), changes in the Work, Differing Site Conditions, Hazardous
Conditions, wars, floods, labor disputes, unusual delay in transportation, epidemics abroad,
earthquakes, adverse weather conditions not reasonably anticipated, and other acts of God.
8.2.2 In addition to Design-Builder’s right to a time extension for those events set forth in
Section 8.2.1 above, Design-Builder shall also be entitled to an appropriate adjustment of the
Contract Price provided, however, that the
Contract Price shall not be adjusted for those events
set forth in Section 8.2.1 above that are beyond the control of both Design-Builder and Owner,
including the events of war, floods, labor disputes, earthquakes, epidemics, adverse weather
conditions not reasonably anticipated, and other acts of God.
Article 9
9.1 Change Orders
9.1.1 A Change Order is a written instrument issued after execution of the Agreement signed by
Owner and Design-Builder, stating their agreement upon all of the following:
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The amount of the adjustment to the Contract Price; and |
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9.1.2 All changes in the Work authorized by applicable Change Order shall be performed under the
applicable conditions of the
Contract Documents. Owner and Design-Builder shall negotiate in good
faith and as expeditiously as possible the appropriate adjustments for such changes.
9.1.3 If Owner requests a proposal for a change in the Work from Design-Builder and subsequently
elects not to proceed with the change, a Change Order shall be issued to reimburse Design-Builder
for reasonable costs incurred for estimating services, design
services and services involved in the preparation of proposed revisions to the
Contract Documents.
9.2 Work Change Directives
9.2.1 A Work Change Directive is a written order prepared and signed by Owner, directing a change
in the Work prior to agreement on an adjustment in the
Contract Price and/or the
Contract Time(s).
9.2.2 Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the
appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the parties
shall prepare and execute an appropriate Change Order reflecting the terms of the agreement.
9.3 Minor Changes in the Work
9.3.1 Minor changes in the Work do not involve an adjustment in the
Contract Price and/or
Contract
Time(s) and do not materially and adversely affect the Work, including the design, quality,
performance and workmanship required by the
Contract Documents. Design-Builder may make minor
changes in the Work consistent with the intent of the
Contract Documents, provided, however that
Design-Builder shall promptly inform Owner, in writing, of any such changes and record such changes
on the documents maintained by Design-Builder.
9.4.1 The increase or decrease in
Contract Price resulting from a change in the Work shall be
determined by one or more of the following methods:
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Unit prices set forth in the Agreement or as subsequently agreed to between the
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A mutually accepted, lump sum, properly itemized and supported by sufficient
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Costs, fees and any other markups set forth in the Agreement; and |
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If an increase or decrease cannot be agreed to as set forth
in items .1 through .3 above and Owner issues a Work Change Directive, the cost of the change of the Work
shall be determined by the reasonable expense and savings in the performance of the
Work resulting from the change, including a reasonable overhead and profit, as may be
set forth in the Agreement. If the net result of both additions and deletions to the
Work is an increase in the Contract Price, overhead and profit shall be calculated on
the basis of the net increase to the Contract Price. If the net result of both
additions and deletions to the Work is a decrease in the Contract Price, there shall be
no overhead or profit adjustment to the Contract Price. Design-Builder shall maintain
a documented, itemized accounting evidencing the expenses and savings associated with
such changes. |
9.4.2 If unit prices are set forth in the
Contract Documents or are subsequently agreed to by the
parties, but application of such unit prices will cause substantial inequity to Owner or
Design-Builder because of differences in the character or quantity of such unit items as originally
contemplated, such unit prices shall be equitably adjusted.
9.4.3 If Owner and Design-Builder disagree upon whether Design-Builder is entitled to be paid for
any
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services required by Owner, or if there are any other disagreements over the scope of Work or
proposed changes to the Work, Owner and Design-Builder shall resolve the disagreement pursuant to
Article 10 hereof. As part of the negotiation process, Design-Builder shall furnish Owner with a
good faith estimate of the costs to perform the disputed services in accordance with Owner’s
interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform
the services in accordance with Owner’s interpretations, Design-Builder shall proceed to perform
the disputed services,
conditioned upon Owner issuing a written order to Design-Builder (i) directing Design-Builder to
proceed and (ii) specifying Owner’s interpretation of the services that are to be performed. If
this occurs, Design-Builder shall be entitled to submit in its Applications for Payment an amount
equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and
Owner agrees to pay such amounts, with the express understanding that (i) such payment by Owner
does not prejudice Owner’s right to argue that it has no responsibility to pay for such services
and (ii) receipt of such payment by Design-Builder does not prejudice Design-Builder’s right to
seek full payment of the disputed services if Owner’s order is deemed to be a change to the Work.
9.5 Emergencies
9.5.1 In any emergency affecting the safety of persons and/or property, Design-Builder shall act,
at its discretion, to prevent threatened damage, injury or loss. Any change in the
Contract Price
and/or
Contract Time(s) on account of emergency work shall be determined as provided in this
Article 9.
Article 10
10.1 Requests for Contract Adjustments and Relief
10.1.1 If either Design-Builder or Owner believes that it is entitled to relief against the other
for any event arising out of or related to the Work or Project, such party shall provide written
notice to the other party of the basis for its claim for relief. Such notice shall, if possible,
be made prior to incurring any cost or expense and in accordance with any specific notice
requirements contained in applicable sections of these General Conditions of
Contract. In the
absence of any specific notice requirement, written notice shall be given within a reasonable time,
not to exceed twenty-one (21) days, after the occurrence giving rise to the claim for relief or
after the claiming party reasonably should have recognized the event or condition giving rise to
the request, whichever is later. Such notice shall include sufficient information to advise the
other party of the circumstances giving rise to the claim for relief, the specific contractual
adjustment or relief requested and the basis of such request.
10.2 Dispute Avoidance and Resolution
10.2.1 The parties are fully committed to working with each other throughout the Project and agree
to communicate regularly with each other at all times so as to avoid or minimize disputes or
disagreements. If disputes or disagreements do arise, Design-Builder and Owner each commit to
resolving such disputes or disagreements in an amicable, professional and expeditious manner so as
to avoid unnecessary losses, delays and disruptions to the Work.
10.2.2 Design-Builder and Owner will first attempt to resolve disputes or disagreements at the
field level through discussions between Design-Builder’s Representative and Owner’s Representative.
10.2.3 If a dispute or disagreement cannot be resolved through Design-Builder’s Representative and
Owner’s Representative, Design-Builder’s Senior Representative and Owner’s Senior Representative,
upon the request of either party, shall meet as soon as conveniently possible, but in no case later
than thirty (30) days after such a request is made, to attempt to resolve such dispute or
disagreement. Prior to any meetings between the Senior Representatives, the parties will exchange
relevant information that will assist the parties in resolving their dispute or disagreement.
10.2.4 If after meeting the Senior Representatives determine that the dispute or disagreement
cannot be resolved on terms satisfactory to both parties, the parties shall submit the dispute or
disagreement to non-binding mediation. The mediation shall be conducted by a mutually agreeable
impartial mediator, or if the parties cannot so agree, a mediator designated by the American
Arbitration Association (
“AAA”) pursuant to its Construction
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Industry Mediation Rules. The
mediation will be governed by and conducted pursuant to a mediation agreement negotiated by the
parties or, if the parties cannot so agree, by procedures established by the mediator.
10.3 Arbitration
10.3.1 Any claims, disputes or controversies between the parties arising out of or relating to the
Agreement, or the breach thereof, which have not been resolved in accordance with the procedures
set forth in Section 10.2 above shall be decided by arbitration in accordance with the Construction
Industry Arbitration Rules of the AAA then in effect, unless the parties mutually agree otherwise.
10.3.2 The award of the arbitrator(s) shall be final and binding upon the parties without the right
of appeal to the courts. Judgment may be entered upon it in accordance with applicable law by any
court having jurisdiction thereof.
10.3.3 Design-Builder and Owner expressly agree that any arbitration pursuant to this Section 10.3
may be joined or consolidated with any arbitration involving any other person or entity (i)
necessary to resolve the claim, dispute or controversy, or (ii) substantially involved in or
affected by such claim, dispute or controversy. Both Design-Builder and Owner will include
appropriate provisions in all
contracts they execute with other parties in connection with the
Project to require such joinder or consolidation.
10.3.4 The prevailing party in any arbitration, or any other final, binding dispute proceeding upon
which the parties may agree, shall be entitled to recover from the other party reasonable
attorneys’ fees and expenses incurred by the prevailing party.
10.4 Duty to Continue Performance
10.4.1 Unless provided to the contrary in the
Contract Documents, Design-Builder shall continue to
perform the Work and Owner shall continue to satisfy its payment obligations to Design-Builder,
pending the final resolution of any dispute or disagreement between Design-Builder and Owner.
10.5 CONSEQUENTIAL DAMAGES
10.5.1 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT AS SET FORTH IN SECTION 10.5.2
BELOW), NEITHER DESIGN-BUILDER NOR OWNER SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES
OR DAMAGES, WHETHER ARISING IN
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING.
10.5.2 The consequential damages limitation set forth in Section 10.5.1 above is not intended to
affect the payment of liquidated damages, if any, set forth in Article 5 of the Agreement, which
both parties recognize has been established, in part, to reimburse Owner for some damages that
might otherwise be deemed to be consequential.
Article 11
Stop Work and Termination for Cause
11.1 Owner’s Right to Stop Work
11.1.1 Owner may, without cause and for its convenience, order Design-Builder in writing to stop
and suspend the Work. Such suspension shall not exceed sixty (60) consecutive days or aggregate
more than ninety (90) days during the duration of the Project.
11.1.2 Design-Builder is entitled to seek an adjustment of the
Contract Price and/or
Contract
Time(s) if its cost or time to perform the Work has been adversely impacted by any suspension of
stoppage of work by Owner.
11.2 Owner’s Right to Perform and Terminate for Cause
11.2.1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers,
(ii) supply the materials required by the
Contract Documents, (iii) comply with applicable Legal
Requirements, (iv) timely pay, without cause, Design Consultants or Subcontractors, (v) prosecute
the Work with promptness and diligence to ensure that the Work is completed by the
Contract
Time(s), as such times may be adjusted, or (vi) perform material obligations under the
Contract
Documents, then Owner, in addition to any other rights and
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remedies provided in the
Contract
Documents or by law, shall have the rights set forth in Sections 11.2.2 and 11.2.3 below.
11.2.2 Upon the occurrence of an event set forth in Section 11.2.1 above, Owner may provide written
notice to Design-Builder that it intends to terminate the Agreement unless the problem cited is
cured, or commenced to be cured, within seven (7) days of Design-Builder’s receipt of such notice.
If Design-Builder fails to cure, or reasonably commence to cure, such problem, then Owner may give
a second written notice to Design-Builder of its intent to terminate within an additional seven (7) day
period. If Design-Builder, within such second seven (7) day period, fails to cure, or reasonably
commence to cure, such problem, then Owner may declare the Agreement terminated for default by
providing written notice to Design-Builder of such declaration.
11.2.3 Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, Owner may
enter upon the premises and take possession, for the purpose of completing the Work, of all
materials, equipment, scaffolds, tools, appliances and other items thereon, which have been
purchased or provided for the performance of the Work, all of which Design-Builder hereby
transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons to
complete the Work and provide all of the required labor, services, materials, equipment and other
items. In the event of such termination, Design-Builder shall not be entitled to receive any
further payments under the
Contract Documents until the Work shall be finally completed in
accordance with the
Contract Documents. At such time, if the unpaid balance of the
Contract Price
exceeds the cost and expense incurred by Owner in completing the Work, such excess shall be paid by
Owner to Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes a
Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work performed prior
to its default. If Owner’s cost and expense of completing the Work exceeds the unpaid balance of
the
Contract Price, then Design-Builder shall be obligated to pay the difference to Owner. Such
costs and expense shall include not only the cost of completing the Work, but also losses, damages,
costs and expense, including attorneys’ fees and expenses, incurred by Owner in connection with the
reprocurement and defense of claims arising from Design-Builder’s default, subject to the waiver of
consequential damages set forth in Section 10.5 hereof.
11.2.4 If Owner improperly terminates the Agreement for cause, the termination for cause will be
converted to a termination for convenience in accordance with the provisions of Article 8 of the
Agreement.
11.3 Design-Builder’s Right to Stop Work
11.3.1 Design-Builder may, in addition to any other rights afforded under the
Contract Documents or
at law, stop work for the following reasons:
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Owner’s failure to provide financial assurances as required under Section 3.3
hereof; or |
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Owner’s failure to pay amounts properly due under Design-Builder’s Application
for Payment. |
11.3.2 Should any of the events set forth in Section 11.3.1 above occur, Design-Builder has the
right to provide Owner with written notice that Design-Builder will stop work unless said event is
cured within seven (7) days from Owner’s receipt of Design-Builder’s notice. If Owner does not
cure the problem within such seven (7) day period, Design-Builder may stop work. In such case,
Design-Builder shall be entitled to make a claim for adjustment to the
Contract Price and
Contract
Time(s) to the extent it has been adversely impacted by such stoppage.
11.4 Design-Builder’s Right to Terminate for Cause
11.4.1 Design-Builder, in addition to any other rights and remedies provided in the
Contract
Documents or by law, may terminate the Agreement for cause for the following reasons:
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The Work has been stopped for sixty (60) consecutive days, or more than ninety
(90) days during the duration of the Project, because of court order, any government
authority having jurisdiction over the Work, or orders by Owner under Section 11.1.1
hereof, provided that such stoppages are not due to the acts or omissions of
Design-
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Builder or anyone for whose acts Design-Builder may be
responsible. |
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Owner’s failure to provide Design-Builder with any information, permits or
approvals that are Owner’s responsibility under the Contract Documents which result in
the Work being stopped for sixty (60) consecutive days, or more
than ninety (90) days during the duration of the Project, even though Owner has not ordered Design-
Builder in writing to stop and suspend the Work pursuant to Section 11.1.1 hereof. |
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Owner’s failure to cure the problems set forth in Section 11.3.1 above after
Design-Builder has stopped the Work. |
11.4.2 Upon the occurrence of an event set forth in Section 11.4.1 above, Design-Builder may
provide written notice to Owner that it intends to terminate the Agreement unless the problem cited
is cured, or commenced to be cured, within seven (7) days of Owner’s receipt of such notice. If
Owner fails to cure, or reasonably commence to cure, such problem, then Design-Builder may give a
second written notice to Owner of its intent to terminate within an additional seven (7) day
period. If Owner, within such second seven (7) day period, fails to cure, or reasonably commence
to cure, such problem, then Design-Builder may declare the Agreement terminated for default by
providing written notice to Owner of such declaration. In such case, Design-Builder shall be
entitled to recover in the same manner as if Owner had terminated the Agreement for its convenience
under Article 8 of the Agreement.
11.5 Bankruptcy of Owner or Design-Builder
11.5.1 If either Owner or Design-Builder institutes or has instituted against it a case under the
United States Bankruptcy Code (such party being referred to as the
“Bankrupt Party”), such event
may impair or frustrate the Bankrupt Party’s ability to perform its obligations under the
Contract
Documents. Accordingly, should such event occur:
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The Bankrupt Party, its trustee or other successor, shall furnish, upon request
of the non-Bankrupt Party, adequate assurance of the ability of the Bankrupt Party to
perform all future material obligations under the Contract Documents, which assurances
shall be provided within ten (10) days after receiving notice of the request; and |
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The Bankrupt Party shall file an appropriate action within the bankruptcy court
to seek assumption or rejection of the Agreement within sixty (60) days of the
institution of the bankruptcy filing and shall diligently prosecute such action.
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If the Bankrupt Party fails to comply with its foregoing obligations, the non-Bankrupt Party shall
be entitled to request the bankruptcy court to reject the Agreement, declare the Agreement
terminated and pursue any other recourse available to the non-Bankrupt Party under this Article 11.
11.5.2 The rights and remedies under Section 11.5.1 above shall not be deemed to limit the ability
of the non-Bankrupt Party to seek any other rights and remedies provided by the
Contract Documents
or by law, including its ability to seek relief from any automatic stays under the United States
Bankruptcy Code or the right of Design-Builder to stop Work under any applicable provision of these
General Conditions of
Contract.
Article 12
Miscellaneous
12.1 Assignment
12.1.1 Neither Design-Builder nor Owner shall, without the written consent of the other assign,
transfer or sublet any portion or part of the Work or the obligations required by the
Contract
Documents.
12.2 Successorship
12.2.1 Design-Builder and Owner intend that the provisions of the
Contract Documents are binding
upon the parties, their employees, agents, heirs, successors and assigns.
12.3 Governing Law
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12.3.1 The Agreement and all
Contract Documents shall be governed by the laws of the place of the
Project, without giving effect to its conflict of law principles.
12.4 Severability
12.4.1 If any provision or any part of a provision of the
Contract Documents shall be finally
determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any
applicable Legal Requirements, such determination shall not impair or otherwise affect the
validity, legality, or enforceability of the remaining provision or parts of the provision of
the
Contract Documents, which shall remain in full force and effect as if the unenforceable
provision or part were deleted.
12.5 No Waiver
12.5.1 The failure of either Design-Builder or Owner to insist, in any one or more instances, on
the performance of any of the obligations required by the other under the
Contract Documents shall
not be construed as a waiver or relinquishment of such obligation or right with respect to future
performance.
12.6 Headings
12.6.1 The headings used in these General Conditions of
Contract, or any other
Contract Document,
are for ease of reference only and shall not in any way be construed to limit or alter the meaning
of any provision.
12.7 Notice
12.7.1 Whenever the
Contract Documents require that notice be provided to the other party, notice
will be deemed to have been validly given (i) if delivered in person to the individual intended to
receive such notice, (ii) four (4) days after being sent by registered or certified mail, postage
prepaid to the address indicated in the Agreement or (iii) if transmitted by facsimile, by the time
stated in a machine generated confirmation that notice was received at the facsimile number of the
intended recipient.
12.8 Amendments
12.8.1 The
Contract Documents may not be changed, altered, or amended in any way except in writing
signed by a duly authorized representative of each party.
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SUPPLEMENTARY CONDITIONS
These Supplementary Conditions amend or supplement the Standard Form of General Conditions of
Contract between Owner and Design-Builder (DBIA Document No. 535, 1998 Edition) and other
provisions of the
Contract Documents as indicated below. All provisions, which are not so amended
or supplemented, remain in full force and effect.
SC – 1.2 Basic Definitions
The terms used in these Supplementary Conditions which are defined in the Standard Form of General
Conditions of
Contract between Owner and Design-Builder (DBIA Document No. 535, 1998 Edition) have
the meanings assigned to them in the General Conditions.
SC – 1.2.1 Agreement
Delete Section 1.2.1 of the General Conditions in its entirety and insert the following in its
place:
Agreement refers to the executed Standard Form of Agreement between Owner and Design-Builder – Lump
Sum (DBIA Document No. 525, 1998 Edition).
SC – 1.2.11 Substantial Completion
Amend Section 1.2.11 of the General Conditions by striking out the following words: or an agreed
upon portion of the Work.
Add the following language at the end of Section 1.2.11 of the General Conditions. Substantial
Completion shall be attained at the point in time when the Facility is ready to begin operation for
its intended use (ethanol production).
As so amended, Section 1.2.11 reads as follows:
Substantial Completion is the date on which the Work is sufficiently complete so that Owner can
occupy and use the Project for its intended purposes. Substantial Completion shall be attained at
the point in time when the Facility is ready to begin operation for its intended use (ethanol
production).
SC – 2.1.2
Delete Section 2.1.2 of the General Conditions in its entirety and insert the following in its
place:
Design-Builder shall maintain a current, complete set of drawings and specifications at the Work
site. Owner may review such drawings and specifications, and Owner may be allowed, upon
Design-Builder’s approval, to make copies of drawings and specifications available at the Work site
that are applicable to Owner. Design-Builder shall provide Owner with regular communication
regarding the progress and any revisions to the drawings and specifications of the Work, including
whether (i) the Work is proceeding according to schedule, (ii) discrepancies, conflicts, or
ambiguities exist in the
Contract Documents that require resolution, (iii) health and safety issues
exist in connection with the Work, and (iv) other items require resolution so as not to jeopardize
Design-Builder’s ability to complete the Work for the
Contract Price and within the
Contract
Time(s).
SC – 2.1.3
Delete Section 2.1.3 of the General Conditions in its entirety and insert the following in its
place:
Design-Builder shall prepare and submit a schedule for the execution of the Work to Owner. The
schedule shall indicate the dates for the start and completion of the various stages of Work,
including the dates when Owner’s obligations are required to be complete to enable Design-Builder
to achieve the
Contract Time(s). The schedule shall be revised as required by conditions and
progress of the Work but such revisions
1
shall not relieve Design-Builder of its obligations to complete the Work within the
Contract
Time(s), unless such revisions to the schedule are the result of any direct or indirect delay in
the completion of Owner’s obligations. Then Design-Builder shall be relieved of its obligations to
complete the Work within the
Contract Time(s), and the
Contract Time(s) for completion of the Work
shall be extended accordingly without penalty to Design-Builder.
SC – 2.1.4
Delete Section 2.1.4 of the General Conditions in its entirety and insert the following in its
place:
The parties will meet at a mutually agreeable time after execution of the Agreement to discuss
issues affecting the administration of the Work and to implement the necessary procedures,
including those relating to submittals and payment, to facilitate the ability of the parties to
perform their obligations under the
Contract Documents.
SC – 2.3.1
Amend the second sentence of Section 2.3.1 of the General Conditions by striking out the words:
Performance Standard Requirements; and inserting the following: Exhibit A: Performance Guarantee
Criteria; and as so amended, Section 2.3.1 reads as follows:
The standard of care for all design professional services performed to execute the Work shall be
the care and skill ordinarily used by members of the design profession practicing under similar
conditions at the same time and locality of the Project. Notwithstanding the preceding sentence,
if the parties agree upon specific performance standards for any aspect of the Work, which
standards are to be set forth in an exhibit to the Agreement entitled “Exhibit A: Performance
Guarantee Criteria,” the design professional services shall be performed to achieve such standards.
SC – 2.4.1
Delete Section 2.4.1 of the General Conditions in its entirety and insert the following in its
place:
Reserved.
SC – 2.4.2
Delete Section 2.4.2 of the General Conditions in its entirety and insert the following in its
place:
Reserved.
SC – 2.4.3
Delete Section 2.4.3 of the General Conditions in its entirety and insert the following in its
place:
Reserved.
SC – 2.6.1
Amend Section 2.6.1 of the General Conditions by striking out the words: an Owner’s Permit List;
and inserting the following: Exhibit C: Owner’s Responsibilities; and as so amended, Section 2.6.1
reads as follows:
Except as identified in Exhibit C: Owner’s Responsibilities List attached as an exhibit to the
Agreement, Design-Builder shall obtain and pay for all necessary permits, approvals, licenses,
government charges and inspection fees required for the prosecution of the Work by any government
or quasi-government entity having jurisdiction over the Project.
SC – 3.5.1
Amend Section 3.5.1 of the General Conditions by striking out the words: the
2
Owner’s Permit List;
and inserting the following: Exhibit C:
Owner’s Responsibilities; and as so amended, Section 3.5.1 reads as follows:
Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and
inspection fees set forth in Exhibit C: Owner’s Responsibilities attached as an exhibit to the
Agreement.
SC – 6.4.1
Amend the first sentence of Section 6.4.1 of the General Conditions by inserting the phrase: in
accordance with Section 6.3 above; and as so amended, Section 6.4.1 reads as follows:
If Owner fails to pay Design-Builder any amount that becomes due, in accordance with Section 6.3
above, Design-Builder, in addition to all other remedies provided in the
Contract Documents, may
stop Work pursuant to Section 11.3 hereof. All payments due and unpaid shall bear interest at the
rate set forth in the Agreement.
SC – 11.3.2
Delete Section 11.3.2 of the General Conditions in its entirety and insert the following in its
place:
Should any of the events set forth in Section 11.3.1 above occur, Design-Builder has the right to
provide Owner with written notice that Design-Builder will stop work unless said event is cured
within seven (7) days from Owner’s receipt of Design-Builder’s notice. If Owner fails to cure, or
reasonably commence to cure, such problem, then Design-Builder may give a second written notice to
Owner of its intent to stop work within an additional seven (7) day period. If Owner, within such
second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then
Design-Builder may stop work. In such case, Design-Builder shall be entitled to make a claim for
adjustment to the
Contract Price and
Contract Time(s) to the extent it has been adversely impacted
by such stoppage.
SC – 10.5.1
Amend Section 10.5.1 of the General Conditions by inserting the phrase “except Design-Builder does
not waive any such damages resulting from or arising out of any breach of Owner’s duties and
obligations under the limited license granted by Design-Builder to Owner pursuant to Article 4 of
the Lump Sum Agreement”; and as so amended, Section 10.5.1 reads as follows:
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT AS SET FORTH IN SECTION 10.5.2 BELOW),
NEITHER DESIGN-BUILDER NOR OWNER SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES OR
DAMAGES, WHETHER ARISING IN
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING,
EXCEPT DESIGN-BUILDER DOES NOT WAIVE ANY SUCH DAMAGES RESULTING FROM OR ARISING OUT OF ANY BREACH
OF OWNER’S DUTIES AND OBLIGATIONS UNDER THE LIMITED LICENSE GRANTED BY DESIGN-BUILDER TO OWNER
PURSUANT TO ARTICLE 4 OF THE LUMP SUM AGREEMENT.
3
Dates Referenced Herein and Documents Incorporated By Reference
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| Filed On / Filed As Of | | 9/26/06 |
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