<Page>
Exhibit 10.12 i
AGREEMENT
BETWEEN OWNER AND DESIGN/BUILDER
ON THE BASIS OF A STIPULATED PRICE
THIS AGREEMENT is dated as of the _____ day of ________, 200_ by and between
Western Plains Energy, LLC, a Kansas limited liability company (hereinafter
called OWNER) and ICM, Inc., a Kansas corporation (hereinafter called
DESIGN/BUILDER).
OWNER and DESIGN/BUILDER, in consideration of the mutual covenants hereinafter
set forth, agree as follows:
ARTICLE 1. WORK.
1.01. DESIGN/BUILDER shall complete all Work as specified or indicated in the
Contract Documents. The Work is generally described as follows:
All labor, materials, and equipment to design, construct, startup and achieve
performance rates of a dry mill ethanol plant capable of producing 30 million
gallon per year of denatured fuel ethanol from 96,000 tons of dried distillers
grains. More specific scope of Work is described in Exhibits A through F.
ARTICLE 2. THE PROJECT.
2.01. The Project for which the Work under the Contract Documents may be the
whole or only a part is generally described as follows:
The Project is a thirty million gallon per year dry mill fuel ethanol plant to
be located near Campus, Kansas and as more accurately described in Exhibit B.
ARTICLE 3. CONTRACT TIMES.
3.01. DAYS TO ACHIEVE SUBSTANTIAL COMPLETION AND FINAL PAYMENT. The Work will be
substantially completed within three hundred ninety (390) days after the date
when the Contract Times commence to run as provided in paragraph 2.02.A of the
General Conditions, and completed and ready for final payment in accordance with
paragraph 13.09 of the General Conditions within four hundred fifty (450) days
after the date when the Contract Times commence to run.
ARTICLE 4. CONTRACT PRICE.
4.01. OWNER shall pay DESIGN/BUILDER the following sum(s) for completion of the
Work in accordance with the Contract Documents.
For all Work, a Lump Sum of Thirty-Five Million Five Hundred Thousand
Dollars ($35,500,000.00). The following cash allowances are included in the
price and have been computed in accordance with paragraph 10.03.A of the General
Conditions:
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<Caption>
Item Allowance
Office Building, Furnishings and equipment $225,000
Spare Parts, Shop Equipment and Rolling Stock $300,000
Railroad spur, switches and car mover $500,000
Allowance for owner contingencies $1,000,000
</Table>
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ii
ARTICLE 5. PAYMENT PROCEDURES
5.01. DESIGN/BUILDER shall submit and OWNER will process Applications for
Payment in accordance with Article 13 of the General Conditions.
A. PROGRESS PAYMENTS; RETAINAGE. OWNER shall make progress payments on
account of the Contract Price on the basis of DESIGN/BUILDER's Applications for
Payment, on or about the 1st day of each month during performance of the Work as
provided in paragraphs 5.01.A.1 and A.2 below. All such payments will be
measured by the acceptable Schedule of Values established in paragraph 2.06.A of
the General Conditions.
1. Prior to Substantial Completion, progress payments will be made in an
amount equal to the percentage indicated below, but, in each case, less the
aggregate of payments previously made and less such amounts as OWNER may
withhold in accordance with paragraph 13.04.B of the General Conditions.
a. Ninety percent (90%) of Work completed (with the balance being
retainage). If the Work has been 50 percent completed as determined by OWNER
there will be no additional retainage on account of Work completed, in which
case the remaining progress payments prior to Substantial Completion will be in
an amount equal to 100 percent of the Work completed.
b. Ninety percent (90%) (with the balance being retainage) of the
cost of materials and equipment not incorporated in the Work (but delivered,
suitably stored and accompanied by documentation satisfactory to OWNER as
provided in paragraph 13.02.A of the General Conditions).
2. Upon Substantial Completion, payment will be made in an amount
sufficient to increase total payments to DESIGN/BUILDER to ninety-seven percent
(97%) of the Contract Price (with the balance being retainage), less such
amounts as OWNER may withhold in accordance with paragraph 13.04.B of the
General Conditions.
B. FINAL PAYMENT. Upon final completion and acceptance of the Work in
accordance with paragraph 13.09 of the General Conditions, OWNER shall pay the
remainder of the Contract Price.
ARTICLE 6. INTEREST.
6.01. All moneys not paid when due as provided in Article 13 of the General
Conditions shall bear interest at the rate of ten percent (10%) per annum.
ARTICLE 7. DESIGN/BUILDER'S REPRESENTATIONS.
7.01. DESIGN/BUILDER makes the following representations:
A. DESIGN/BUILDER has examined and carefully studied the Contract Documents
listed in paragraphs 8.01.A through C but excluding the documents described in
paragraph 8.01.D.
B. DESIGN/BUILDER is familiar with and is satisfied as to all federal, state
and local Laws and Regulations that may affect cost, progress, performance or
furnishing of the Work.
C. DESIGN/BUILDER is aware of the general nature of work to be performed by
OWNER and others at the Site that relates to the Work as indicated in the
Contract Documents.
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iii
D. DESIGN/BUILDER has correlated the information known to DESIGN/BUILDER,
reports and drawings identified in the Contract Documents and all additional
examinations, investigations, tests, studies and data with the Contract
Documents.
E. DESIGN/BUILDER has given OWNER written notice of all conflicts, errors,
ambiguities or discrepancies that DESIGN/BUILDER has discovered in the Contract
Documents and the written resolution thereof by OWNER is acceptable to
DESIGN/BUILDER, and the Contract Documents are generally sufficient to indicate
and convey understanding of all terms and conditions for performance and
furnishing of the Work.
ARTICLE 8. CONTRACT DOCUMENTS.
8.01. The Contract Documents which comprise the entire agreement between OWNER
and DESIGN/BUILDER concerning the Work consist of the following:
A. This Agreement (pages 1 to 4, inclusive).
B. Exhibits to this Agreement (A to F, inclusive).
C. General Conditions of the Contract Between Owner and Design/Builder
(pages 1 to 38, inclusive).
D. The following which may be delivered, prepared, or issued after the
Effective Date of this Agreement and are not attached hereto.
1. Notice to Proceed.
2. All Written Amendments and other documents amending, modifying or
supplementing the Contract Documents pursuant to paragraph 3.03.A of the General
Conditions.
3. Specifications as defined in Paragraph 1.01.A.32 of the General
Conditions.
4. Drawings as defined in Paragraph 1.01.A.16 of the General Conditions.
8.02. The documents listed in paragraph 8.01 above are attached to this
Agreement (except as expressly noted otherwise above).
8.03. There are no Contract Documents other than those listed above in this
Article 8. The Contract Documents may only be amended, modified or supplemented
as provided in paragraph 3.03.A of the General Conditions.
ARTICLE 9. MISCELLANEOUS.
9.01. The Standard General Conditions of the Contract Between Owner and
Design/Builder are referred to herein as the General Conditions.
9.02. Terms used in this Agreement which are defined in Article 1 of the General
Conditions will have the meanings indicated therein.
9.03. No assignment by a party hereto of any rights under or interests in the
Contract Documents will be binding on another party hereto without the written
consent of the party sought to be bound; and, specifically but without
limitation, moneys that may become due and moneys that are due may not be
assigned without such consent (except to the extent that the effect of this
restriction may be limited by law), and unless specifically stated to the
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iv
contrary in any written consent to an assignment no assignment will release or
discharge the assignor from any duty or responsibility under the Contract
Documents.
9.04. OWNER and DESIGN/BUILDER each binds itself, its successors, assigns and
legal representatives to the other party hereto, its successors, assigns and
legal representatives in respect to all covenants, agreements and obligations
contained in the Contract Documents.
9.05. Any provision or part of the Contract Documents held to be void or
unenforceable under any Law or Regulation shall be deemed stricken, and all
remaining provisions shall continue to be valid and binding upon OWNER and
DESIGN/BUILDER, who agree that the Contract Documents shall be reformed to
replace such stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the intention of the
stricken provision.
9.06. This Agreement will be effective on ______________________, 2001.
9.07. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which shall constitute one
agreement that is binding upon all of the parties hereto, notwithstanding that
all parties are not signatories to the same counterpart. Facsimile signatures of
the parties hereto shall be binding.
IN WITNESS WHEREOF, OWNER and DESIGN/BUILDER have signed this Agreement on the
date first written above.
OWNER: Western Plains Energy, LLC DESIGN/BUILDER: ICM, Inc.
By:_______________________________ By:__________________________________
Name:_____________________________ Jeff Roskam, Senior Vice President
Title:____________________________
Addresses for giving notices and representatives:
Name: Jeff Tourlemke Name: Jeff Roskam
Title: President Title: Senior Vice President
Address:__________________________ Address: 310 N. First Street, Colwich, KS
Phone:____________________________ Phone: 316-796-0900
Facsimile:________________________ Facsimile: 316-796-0570
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i
GENERAL CONDITIONS OF THE
CONTRACT BETWEEN
OWNER AND DESIGN/BUILDER
TABLE OF CONTENTS
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<Caption>
PAGE
ARTICLE
1--DEFINITIONS...............................................................................1
1.01 Defined Terms........................................................1
ARTICLE 2--PRELIMINARY MATTERS...............................................................3
2.01 Delivery of Bonds....................................................3
2.02 Commencement of Contract Times; Notice to Proceed....................4
2.03 Starting the Work....................................................4
2.04 Before Starting Construction.........................................4
2.05 Initial Conference...................................................4
2.06 Initially Acceptable Schedules.......................................4
ARTICLE 3--CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE......................................5
3.01 Intent...............................................................5
3.02 References...........................................................5
3.03 Amending and Supplementing Contract Documents........................6
3.04 Reuse of Documents...................................................6
ARTICLE 4--AVAILABILITY OF LANDS; DIFFERING SITE CONDITIONS; REFERENCE
POINTS; HAZARDOUS CONDITIONS.......................................................6
4.01 Availability of Lands................................................6
4.02 Differing Site Conditions............................................7
4.03 Reference Points.....................................................7
4.04 Hazardous Conditions.................................................7
ARTICLE 5--BONDS AND INSURANCE...............................................................8
5.01 Performance, Payment and Other Bonds.................................8
5.02 DESIGN/BUILDER's Liability Insurance.................................8
5.03 OWNER's Liability Insurance..........................................9
5.04 Property Insurance...................................................9
5.05 Waiver of Rights....................................................11
5.06 Receipt and Application of Proceeds.................................11
5.07 Acceptance of Bonds and Insurance; Option to Replace................12
5.08 Licensed Sureties and Insurers; Certificates of Insurance...........12
ARTICLE 6--DESIGN/BUILDER'S RESPONSIBILITIES................................................12
6.01 Design Professional Services........................................12
6.02 Supervision and Superintendence of Construction.....................13
6.03 Labor, Materials and Equipment......................................13
6.04 Progress Schedule...................................................14
6.05 Concerning Subcontractors, Suppliers and Others.....................14
6.06 Patent Fees and Royalties...........................................15
6.07 Permits.............................................................15
6.08 Laws and Regulations................................................15
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6.09 Taxes...............................................................16
6.10 Use of Site and Other Areas.........................................16
6.11 Record Documents....................................................17
6.12 Safety and Protection...............................................17
6.13 Safety Representative...............................................17
6.14 Hazard Communication Programs.......................................18
6.15 Emergencies.........................................................18
6.16 Submittals..........................................................18
6.17 Continuing the Work.................................................18
6.18 DESIGN/BUILDER's General Warranty and Guarantee.....................19
6.19 Indemnification.....................................................19
ARTICLE 7--OTHER CONSTRUCTION...............................................................20
7.01 Related Construction at Site........................................20
ARTICLE 8--OWNER'S RESPONSIBILITIES.........................................................20
8.01 General.............................................................20
8.02 Scope of OWNER's Safety and Hazardous Waste Responsibilities........21
8.03 Tax Claim Indemnification...........................................21
8.04 General Indemnification.............................................22
ARTICLE 9--CHANGES IN THE WORK; CLAIMS......................................................22
9.01 General--Rights and Obligations.....................................22
9.02 Notice of Intent to Make Claim......................................22
9.03 Claim Documentation.................................................22
9.04 Decision............................................................22
9.05 Time Limit Extension................................................22
9.06 Exceptions..........................................................22
9.07 Execution of Change Orders..........................................23
9.08 Notice to Sureties..................................................23
ARTICLE 10--CHANGE OF CONTRACT PRICE........................................................23
10.01 General.............................................................23
10.02 Cost of the Work....................................................23
10.03 Cash Allowances.....................................................26
ARTICLE 11--CHANGE OF CONTRACT TIMES........................................................27
11.01 General.............................................................27
11.02 Time Extensions.....................................................27
ARTICLE 12--TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR
ACCEPTANCE OF DEFECTIVE CONSTRUCTION..............................................27
12.01 Notice of Defects...................................................27
12.02 Access to Construction..............................................27
12.03 Tests and Inspections...............................................27
12.04 Uncovering Construction.............................................28
12.05 Owner May Stop the Construction.....................................28
12.06 Correction or Removal of Defective Construction.....................28
12.07 Correction Period...................................................29
12.08 Acceptance of Defective Construction................................29
12.09 OWNER May Correct Defective Construction............................30
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ARTICLE 13--PAYMENTS TO DESIGN/BUILDER AND COMPLETION.......................................30
13.01 Schedule of Values..................................................30
13.02 Application for Progress Payment....................................31
13.03 DESIGN/BUILDER's Warranty of Title..................................31
13.04 Progress Payments...................................................31
13.05 Substantial Completion..............................................32
13.06 Final Inspection....................................................32
13.07 Final Application for Payment.......................................33
13.08 Final Payment and Acceptance........................................33
13.09 Waiver of Claims....................................................34
ARTICLE 14--SUSPENSION OF WORK AND TERMINATION..............................................34
14.01 Owner May Suspend Work..............................................34
14.02 Owner May Terminate for Cause.......................................34
14.03 Owner May Terminate for Convenience.................................35
14.04 DESIGN/BUILDER May Stop Work or Terminate...........................35
ARTICLE 15--DISPUTE RESOLUTION..............................................................36
15.01 Dispute Resolution Agreement........................................36
ARTICLE 16--MISCELLANEOUS...................................................................37
16.01 Giving Notice.......................................................37
16.02 Computation of Times................................................37
16.03 Notice of Claim.....................................................37
16.04 Cumulative Remedies.................................................38
16.05 Survival of Obligations.............................................38
16.06 Consequential Damages...............................................38
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GENERAL CONDITIONS
ARTICLE 1--DEFINITIONS
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1.01 DEFINED TERMS
A. Wherever used in these General Conditions or in the other Contract
Documents the following terms have the meanings indicated which are applicable
to both the singular and plural thereof:
1. AGREEMENT--The written contract between OWNER and DESIGN/BUILDER
covering the Work; other Contract Documents are attached to the Agreement
and made a part thereof as provided therein.
2. APPLICATION FOR PAYMENT--The form which is to be used by DESIGN/BUILDER
in requesting progress or final payments and which is to be accompanied by
such supporting documentation as is required by the Contract Documents.
3. ASBESTOS--Any material that contains more than one percent asbestos and
is friable or is releasing asbestos fibers into the air above current action
levels established by the United States Occupational Safety and Health
Administration.
4. BONDS--Performance and payment bonds and other instruments of security.
5. CASH FLOW PROJECTION--A schedule prepared by DESIGN/BUILDER estimating
that portion of the Contract Price to be due during each month of
performance.
6. CHANGE ORDER--A written order which is signed by DESIGN/BUILDER and OWNER
which authorizes an addition, deletion or revision in the Work, or an
adjustment in the Contract Price or the Contract Times, issued on or after
the Effective Date of the Agreement.
7. CONSTRUCTION--The performing or furnishing of labor, the furnishing and
incorporating of materials and equipment into the Work and the furnishing of
services (other than Design Professional Services) and documents, all as
required by the Contract Documents.
8. CONSTRUCTION SUBAGREEMENT--A written agreement between DESIGN/BUILDER and
a construction contractor for provision of Construction.
9. CONTRACT DOCUMENTS--The Agreement, the Notice to Proceed, these General
Conditions, the Specifications and the Drawings together with all Work
Change Directives, Change Orders, Written Amendments, and Field Orders,
issued on or after the Effective Date of the Agreement.
10. CONTRACT PRICE--The moneys payable by OWNER to DESIGN/BUILDER for
completion of the Work in accordance with the Contract Documents.
11. CONTRACT TIMES--The numbers of days or the dates stated in the Agreement
(i) to achieve Substantial Completion, and (ii) to complete the Work so that
it is ready for final payment in accordance with paragraph 13.08.A.
12. DEFECTIVE--An adjective which when modifying the term Construction
refers to Construction that is unsatisfactory, faulty or deficient, in that
it does not conform to the Contract Documents, or does not meet the
requirements of any inspection, reference standard, test or approval
referred to in the Contract Documents, or has been damaged prior to OWNER's
final payment (unless responsibility for the protection thereof has been
assumed by OWNER at Substantial Completion).
13. DESIGN/BUILDER-ICM, Inc., a Kansas corporation.
14. DESIGN SUBAGREEMENT--A written agreement between DESIGN/BUILDER and a
design professional for provision of Design Professional Services.
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15. DESIGN PROFESSIONAL SERVICES--Services related to the preparation of
Drawings,
Specifications, and other design submittals specified by the Contract
Documents and required to be performed by licensed design professionals, as
well as services provided by or for licensed design professionals during
Bidding/Negotiating, Construction, or Operational phases.
16. DRAWINGS--Those portions of the Contract Documents prepared by or for
DESIGN/BUILDER and approved by OWNER consisting of drawings, diagrams,
illustrations, schedules and other data which show the scope, extent, and
character of the Work.
17. EFFECTIVE DATE OF THE AGREEMENT--The date indicated in the Agreement on
which it becomes effective, but if no such date is indicated it means the
date on which the Agreement is signed and delivered by the last of the two
parties to sign and deliver.
18. ENGINEER--A duly licensed individual or entity designated by
DESIGN/BUILDER to perform or furnish specified Design Professional Services
in connection with the Work.
19. FIELD ORDER--A written order issued by OWNER which orders minor changes
in the Work but which does not involve a change in the Contract Price or the
Contract Times.
20. HAZARDOUS CONDITION--The presence at the Site of Asbestos, Hazardous
Waste, PCB's, Petroleum Products or Radioactive Materials in such quantities
or circumstances that there is a danger to persons or property.
21. HAZARDOUS WASTE--The term Hazardous Waste shall have the meaning
provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section
6903).
22. LAWS AND REGULATIONS; LAWS OR REGULATIONS--Any and all applicable laws,
rules, regulations, ordinances, codes and orders of any and all governmental
bodies, agencies, authorities and courts having jurisdiction.
23. LIENS--Charges, security interests or encumbrances upon real property or
personal property.
24. Notice to Proceed--A written notice given by OWNER to DESIGN/BUILDER
fixing the date on which the Contract Times will commence to run.
25. OWNER--The public body, or authority, individual or entity with whom
DESIGN/BUILDER has entered into the Agreement and for whom the Work is to be
provided.
26. PCBs--Polychlorinated biphenyls.
27. PETROLEUM--Petroleum, including crude oil or any fraction thereof which
is liquid at standard conditions of temperature and pressure (60 degrees
Fahrenheit and 14.7 pounds per square inch absolute), such as oil,
petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil
mixed with other non-Hazardous Wastes and crude oils.
28. PROJECT--The total Construction to be provided under the Contract
Documents which may be the whole or a part as indicated elsewhere in the
Contract Documents.
29. RADIOACTIVE MATERIAL--Source, special nuclear, or byproduct material as
defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as
amended from time to time.
30. SCHEDULE OF VALUES--A schedule prepared by DESIGN/BUILDER and acceptable
to OWNER indicating that portion of the Contract Price to be paid for each
major component of the Work.
31. SITE--Lands or other areas designated in the Contract Documents as being
furnished by OWNER for the performance of the Construction, storage, or
access.
32. SPECIFICATIONS--Those portions of the Contract Documents prepared by or
for DESIGN/BUILDER and approved by OWNER
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consisting of written technical descriptions of materials, equipment,
construction systems, standards and workmanship as applied to the
Construction and certain administrative details applicable thereto.
33. SUBCONTRACTOR--An individual or entity other than a Supplier or Engineer
having a direct contract with DESIGN/BUILDER or with any other Subcontractor
for the performance of a part of the Work.
34. SUBMITTAL--A written or graphic document prepared by or for
DESIGN/BUILDER which is required by the Contract Documents to be submitted
to OWNER by DESIGN/BUILDER. Submittals may include Drawings, Specifications,
progress schedules, shop drawings, samples, Cash Flow Projections, and
Schedules of Values. Submittals other than Drawings and Specifications are
not Contract Documents.
35. SUBSTANTIAL COMPLETION--The time at which the Construction (or a
specified part) has progressed to the point where it is sufficiently
complete, in accordance with the Contract Documents, so that the
Construction (or a specified part) can be utilized for the purposes of
grinding grain, producing alcohol and producing distillers grains. The terms
"substantially complete" and "substantially completed" as applied to all or
part of the Construction refer to Substantial Completion thereof.
36. SUPPLIER--A manufacturer, fabricator, supplier, distributor, materialman
or vendor having a direct contract with DESIGN/BUILDER or with any
Subcontractor to furnish materials or equipment to be incorporated in the
Work by DESIGN/BUILDER or any Subcontractor.
37. WORK--The entire completed construction or the various separately
identifiable parts thereof required to be performed or furnished under the
Contract Documents. Work includes and is the result of performing or
furnishing Design Professional Services and Construction required by the
Contract Documents.
38. WORK CHANGE DIRECTIVE--A written directive to DESIGN/BUILDER, issued on
or after the Effective Date of the Agreement and signed by OWNER ordering an
addition, deletion or revision in the Work, or responding to differing Site
conditions under which the Work is to be performed as provided in paragraph
4.02 or to emergencies under paragraph 6.15. A Work Change Directive will
not change the Contract Price or the Contract Times, but is evidence that
the parties expect that the change directed or documented by a Work Change
Directive will be incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if any, on the
Contract Price or Contract Times.
39. WRITTEN AMENDMENT--A written amendment of the Contract Documents, signed
by OWNER and DESIGN/BUILDER on or after the Effective Date of the Agreement
and normally dealing with the nonengineering or nontechnical rather than
strictly design or construction-related aspects of the Contract Documents.
ARTICLE 2--PRELIMINARY MATTERS
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2.01 DELIVERY OF BONDS
A. When DESIGN/BUILDER delivers the executed Agreements to OWNER,
DESIGN/BUILDER shall also deliver to OWNER such Bonds as DESIGN/ BUILDER may be
required to furnish in accordance with paragraph 5.01.A, if any.
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2.02 COMMENCEMENT OF CONTRACT TIMES; NOTICE TO PROCEED
A. The Contract Times will commence to run on the day indicated in the
Notice to Proceed. A Notice to Proceed may be given at any time within
one-hundred eighty days after the Effective Date of the Agreement, provided
OWNER has secured financial commitments sufficient to fund the project, to the
satisfaction of the DESIGN/BUILDER.
2.03 STARTING THE WORK
A. DESIGN/BUILDER shall start to perform the Work on the date when the
Contract Times commence to run.
2.04 BEFORE STARTING CONSTRUCTION
A. DESIGN/BUILDER shall submit the following for review within ten days
after commencement of the Contract Times:
1. A preliminary progress schedule indicating the times (numbers of days or
dates) for starting and completing the various stages of the Work;
2. A preliminary schedule of required Submittals and the times for
submitting, reviewing and processing each Submittal;
3. A preliminary Schedule of Values for all of the Work which will include
quantities and prices of items aggregating the Contract Price and will
subdivide the Work into component parts in sufficient detail to serve as the
basis for progress payments during performance of the Work. Such prices will
include a pro rata amount of overhead and profit applicable to each item of
Work; and
4. A preliminary Cash Flow Projection.
B. Before any Work is started, DESIGN/BUILDER and OWNER shall each deliver
to the other, with copies to each additional insured, certificates of insurance
(and other evidence of insurance which either of them or any additional insured
may reasonably request) which DESIGN/BUILDER and OWNER respectively are required
to purchase and maintain in accordance with paragraphs 5.02.A, 5.04.A and
5.04.B.
2.05 INITIAL CONFERENCE
A. Within twenty days after the Contract Times start to run a conference
attended by OWNER and DESIGN/BUILDER and others as appropriate will be held to
establish a working understanding among the parties as to the Work and to
discuss the design concepts, schedules referred to in paragraph 2.04.A,
procedures for handling Submittals, processing Applications for Payment,
maintaining required records, items required pursuant to paragraph 8.01.A.6 and
other matters.
2.06 INITIALLY ACCEPTABLE SCHEDULES
A. At least ten days before submission of the first Application for Payment
a conference attended by DESIGN/BUILDER, OWNER and others as appropriate will be
held to review for acceptability the schedules submitted in accordance with
paragraph 2.04.A. DESIGN/BUILDER shall have an additional ten days to make
corrections and adjustments and to complete and resubmit the schedules. No
progress payment shall be made to DESIGN/BUILDER until the schedules are
submitted to and acceptable to OWNER as provided below. The progress schedule
will be acceptable to OWNER as providing an orderly progression of the Work to
completion within the Contract Times, but such acceptance will neither impose on
OWNER responsibility for the sequencing, scheduling or progress of the Work nor
interfere with or relieve DESIGN/BUILDER from DESIGN/BUILDER's full
responsibility therefor. The format and structure of the progress schedule will
be as set forth in the Contract Documents. OWNER's acceptance shall not be
deemed to confirm that the schedule is a reasonable plan for performing the
Work. DESIGN/BUILDER's schedule of Submittals will be
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acceptable to OWNER as providing a workable arrangement for reviewing and
processing the required Submittals. DESIGN/BUILDER's Schedule of Values and Cash
Flow Projection will be acceptable to OWNER as to form and substance.
ARTICLE 3--CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
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3.01 INTENT
A. The Contract Documents comprise the entire agreement between OWNER and
DESIGN/BUILDER concerning the Work. The Contract Documents are complementary;
what is called for by one is as binding as if called for by all. The Contract
Documents will be construed in accordance with the law of the place of the
Project.
B. It is the intent of the Contract Documents to describe a functionally
complete Project (or part thereof) to be designed and constructed in accordance
with the Contract Documents. Any Work, materials or equipment that may
reasonably be inferred from the Contract Documents or from prevailing custom or
trade usage as being required to produce the intended result will be furnished
and performed whether or not specifically called for. When words or phrases
which have a well-known technical or construction industry or trade meaning are
used to describe work, materials or equipment, such words or phrases shall be
interpreted in accordance with that meaning.
3.02 REFERENCES
A. Reference to standards, specifications, manuals or codes of any technical
society, organization or association, or to the Laws or Regulations of any
governmental authority, whether such reference be specific or by implication,
shall mean the latest standard, specification, manual, code or Laws or
Regulations in effect on the effective date of the agreement except as may be
otherwise specifically stated in the Contract Documents.
B. Except as otherwise specifically stated in the Contract Documents or as
may be provided by amendment or supplement thereto issued by one of the methods
indicated in paragraph 3.03.A, the provisions of the Contract Documents shall
take precedence in resolving any conflict, error, ambiguity or discrepancy
between the provisions of the Contract Documents and:
1. the provisions of any such standard, specification, manual, code or
instruction (whether or not specifically incorporated by reference in the
Contract Documents); or
2. the provisions of any such Laws or Regulations applicable to the
performance of the Work (unless such an interpretation of the provisions of
the Contract Documents would result in violation of such Law or Regulation).
C. No provision of any such standard, specification, manual, code or
instruction shall be effective to change the duties and responsibilities of
OWNER, DESIGN/BUILDER or any of their subcontractors, consultants, agents, or
employees from those set forth in the Contract Documents, nor shall it be
effective to assign to OWNER any duty or authority to supervise or direct the
furnishing or performance of the Work or any duty or authority to undertake
responsibility inconsistent with the provisions of paragraph 8.02 or any other
provision of the Contract Documents.
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3.03 AMENDING AND SUPPLEMENTING CONTRACT DOCUMENTS
A. The Contract Documents may be amended to provide for additions, deletions
and revisions in the Work or to modify the terms and conditions thereof in one
or more of the following ways:
1. OWNER's approval of required Submittals (pursuant to paragraph 6.16.B);
2. A Work Change Directive;
3. A Change Order;
4. A formal Written Amendment; or
5. A Field Order.
3.04 REUSE OF DOCUMENTS
A. All documents including Drawings and Specifications prepared or furnished
by DESIGN/BUILDER pursuant to the Contract Documents are instruments of service
in respect of the Project and DESIGN/BUILDER shall retain an ownership and
property interest therein whether or not the Project is completed. OWNER may
make and retain copies for information and reference in connection with the use
and occupancy of the Project by OWNER and others; however, such documents are
not intended or represented to be suitable for reuse by OWNER or others on
extensions of the Project or on any other project. Any reuse without written
verification or adaptation by DESIGN/BUILDER for the specific purpose intended
will be at OWNER's sole risk and without liability or legal exposure to
DESIGN/BUILDER and OWNER shall indemnify and hold harmless DESIGN/BUILDER,
Subcontractors, and Engineer from all claims, damages, losses and expenses
including attorneys' fees arising out of or resulting therefrom. Any such
verification or adaptation will entitle DESIGN/BUILDER to further compensation
at rates to be agreed upon by OWNER and DESIGN/BUILDER.
B. In addition to paragraph 3.04.A, all documents including Drawings and
Specifications prepared or furnished by DESIGN/BUILDER pursuant to the Contract
Documents are subject to the use and disclosure restrictions set forth in
Exhibit F attached to the Agreement.
ARTICLE 4--AVAILABILITY OF LANDS; DIFFERING SITE CONDITIONS; REFERENCE POINTS;
HAZARDOUS CONDITIONS
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4.01 AVAILABILITY OF LANDS
A. OWNER shall furnish, as indicated in the Contract Documents, the lands
upon which the Construction is to be performed, rights-of-way and easements for
access thereto, and such other lands which are designated for the use of
DESIGN/BUILDER.
B. Upon reasonable written request, OWNER shall furnish DESIGN/BUILDER with
a correct statement of record legal title and legal description of the lands
upon which the Construction is to be performed and OWNER's interest therein as
necessary for giving notice of or filing a mechanic's lien against such lands in
accordance with applicable Laws and Regulations. OWNER shall identify any
encumbrances or restrictions not of general application but specifically related
to use of lands so furnished with which DESIGN/BUILDER will have to comply in
performing the Work. Easements for permanent structures or permanent changes in
existing facilities will be obtained and paid for by OWNER, unless otherwise
provided in the Contract Documents. If DESIGN/BUILDER and OWNER are unable to
agree on entitlement to or the amount or extent of any adjustments in the
Contract Price or the Contract Times as a result of any delay in OWNER's
furnishing these lands, rights-of-way or easements, DESIGN/BUILDER may make a
claim therefor as provided in Article 9.
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C. OWNER shall provide for all additional lands and access thereto that may
be required for temporary construction facilities or storage of materials and
equipment.
4.02 DIFFERING SITE CONDITIONS
A. DESIGN/BUILDER shall promptly, and before the conditions are disturbed,
give a written notice to OWNER of (i) subsurface or latent physical conditions
at the Site which differ materially from those indicated in the Contract
Documents, or (ii) unknown physical conditions at the Site, of an unusual
nature, which differ materially from those ordinarily encountered and generally
recognized as inhering in work of the character called for by the Contract
Documents.
B. OWNER will investigate the site conditions promptly after receiving the
notice. If the conditions do materially so differ and cause an increase or
decrease in the DESIGN/BUILDER's cost of, or the time required for, performing
any part of the Work, whether or not changed as a result of the conditions, an
equitable adjustment shall be made under this clause and the Contract Price
and/or Contract Times modified in writing by Change Order in accordance with
Article 9.
C. No request by DESIGN/BUILDER for an equitable adjustment under paragraph
4.02 shall be allowed unless DESIGN/BUILDER has given the written notice
required; provided that the time prescribed in 9.02.A for giving written notice
may be extended by OWNER.
4.03 REFERENCE POINTS
A. DESIGN/BUILDER shall be responsible for laying out the construction and
shall protect and preserve the reference points established by OWNER pursuant to
paragraph 8.01.A.6.e and shall make no changes or relocations without the prior
written approval of OWNER. DESIGN/BUILDER shall report to OWNER whenever any
reference point or property monument is lost or destroyed or requires relocation
because of necessary changes in grades or locations, and shall be responsible
for the accurate replacement or relocation of such reference points or property
monuments by professionally qualified personnel.
4.04 Hazardous Conditions
A. OWNER will be responsible for any Hazardous Condition encountered at the
Site which was not identified in the Contract Documents to be within the scope
of the Work. OWNER shall not be responsible for materials creating a Hazardous
Condition brought to the Site by DESIGN/BUILDER, Subcontractors, Suppliers or
anyone else for whom DESIGN/BUILDER is responsible.
B. DESIGN/BUILDER and any affected Subcontractor shall immediately (i) stop
all Construction in connection with such Hazardous Condition and in any area
affected thereby (except in an emergency as required by paragraph 6.15), and
(ii) notify OWNER (and thereafter confirm such notice in writing). OWNER shall
promptly determine the necessity of retaining a qualified expert to evaluate
such Hazardous Condition or take corrective action, if any. DESIGN/BUILDER shall
not be required to resume Construction in connection with such Hazardous
Condition or in any such affected area until after OWNER has obtained any
required permits related thereto and delivered to DESIGN/BUILDER special written
notice (i) specifying that such Hazardous Condition and any affected area is or
has been rendered safe for the resumption of Construction, or (ii) specifying
any
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special conditions under which such Construction may be resumed safely. If OWNER
and DESIGN/BUILDER cannot agree as to entitlement to or the amount or extent of
an adjustment, if any, in Contract Price and/or Contract Times as a result of
such Construction stoppage or such special conditions under which Construction
is agreed by DESIGN/BUILDER to be resumed, either party may make a claim
therefor as provided in Article 9.
C. If after receipt of such special written notice DESIGN/BUILDER does not
agree to resume Construction based on a reasonable belief it is unsafe, or does
not agree to resume such Construction under such special conditions, then OWNER
may order such portion of the Work that is related to such Hazardous Condition
or in such affected area to be deleted from the Work. If OWNER and
DESIGN/BUILDER cannot agree as to entitlement to or the amount or extent of an
adjustment, if any, in Contract Price and/or Contract Times as a result of
deleting such portion of the Work, then either party may make a claim therefor
as provided in Article 9. OWNER may have such deleted portion of the Work
performed by OWNER's own forces or others in accordance with Article 7.
D. To the fullest extent permitted by Laws and Regulations, OWNER shall
indemnify and hold harmless DESIGN/BUILDER, Subcontractors, Suppliers, Engineers
and the officers, directors, employees, agents, other consultants and
subcontractors of each and any of them from and against all claims, costs,
losses and damages (including but not limited to all reasonable fees and charges
of engineers, architects, attorneys and other professionals and all court or
arbitration or other dispute resolution costs) arising out of or resulting from
such Hazardous Condition, provided that (i) any such claim, cost, loss or damage
is attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than completed Construction), including
the loss of use resulting therefrom, and (ii) nothing in this paragraph 4.04.D
shall obligate OWNER to indemnify any individual or entity from and against the
consequences of that individual's or entity's own negligence or willful
misconduct.
ARTICLE 5--BONDS AND INSURANCE
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5.01 PERFORMANCE, PAYMENT AND OTHER BONDS
A. DESIGN/BUILDER shall not be required to furnish any performance and
payment Bonds.
5.02 DESIGN/BUILDER'S LIABILITY INSURANCE
A. DESIGN/BUILDER shall purchase and maintain such Comprehensive or
Commercial General Liability (subject to customary exclusions in respect of
professional liability), Automobile Liability and Worker's Compensation
insurance as is appropriate for the Work being performed and furnished and as
will provide protection from claims set forth below which may arise out of or
result from DESIGN/BUILDER's performance and furnishing of the Work and
DESIGN/BUILDER's other obligations under the Contract Documents, whether it is
to be performed or furnished by DESIGN/BUILDER, any Subcontractor or Supplier,
or by anyone directly or indirectly employed by any of them to perform or
furnish any of the Work, or by anyone for whose acts any of them may be liable:
1. Claims under workers' compensation, disability benefits and other similar
employee benefit acts;
2. Claims for damages because of bodily injury, occupational sickness or
disease, or death of DESIGN/BUILDER's employees;
3. Claims for damages because of bodily injury, sickness or disease, or
death of any person other than DESIGN/BUILDER's employees;
4. Claims for damages insured by customary personal injury liability
coverage
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which are sustained (i) by any person as a result of an offense directly or
indirectly related to the employment of such person by DESIGN/BUILDER, or
(ii) by any other person for any other reason;
6. Claims for damages because of bodily injury or death of any person or
property damage arising out of the ownership, maintenance or use of any
motor vehicle.
B. The policies of insurance required by paragraph 5.02.A shall:
1. With respect to insurance required by paragraphs 5.02.A.3 through
5.02.A.6 inclusive, include as additional insureds OWNER and any other
persons or entities identified in writing by OWNER, all of whom shall be
listed as additional insureds, and include coverage for the respective
officers and employees of all such additional insureds;
2. Include at least the specific coverages and be written for not less
than the limits of liability agreed in writing by DESIGN/BUILDER and OWNER
or required by Laws or Regulations, whichever is greater;
3. Include completed operations insurance;
4. Include contractual liability insurance covering DESIGN/BUILDER's
indemnity obligations under paragraphs 6.06, 6.10 and 6.19;
5. Contain a provision or endorsement that the coverage afforded will not
be cancelled, materially changed or renewal refused until at least 30 days
prior written notice has been given to OWNER and each other additional
insured to whom a certificate of insurance has been issued (and the
certificates of insurance furnished by the DESIGN/BUILDER pursuant to
paragraph 5.08.B will so provide);
6. Claims for damages, other than to the Work itself, because of injury
to or destruction of tangible property wherever located, including loss
of use resulting therefrom; and
7. Remain in effect at least until final payment and at all times
thereafter when DESIGN/BUILDER may be correcting, removing or replacing
DEFECTIVE Construction in accordance with paragraphs 12.06 and 12.07; and
8. With respect to completed operations insurance, and any other
insurance coverage written on a claims-made basis, remain in effect for
at least one year after final payment (and DESIGN/BUILDER shall furnish
OWNER and each other additional insured to whom a certificate of insurance
has been issued evidence satisfactory to OWNER and any such additional
insured of continuation of such insurance at final payment).
5.03 OWNER'S LIABILITY INSURANCE
A. In addition to the insurance required to be provided by DESIGN/BUILDER
under paragraph 5.02, OWNER, at OWNER's option, may purchase and maintain at
OWNER's expense OWNER's own liability insurance as will protect OWNER against
claims which may arise from operations under the Contract Documents.
5.04 PROPERTY INSURANCE
A. OWNER shall purchase and maintain property insurance upon the
Construction at the Site in the amount of the full replacement cost thereof
(subject to such deductible amounts as may be agreed in writing by
DESIGN/BUILDER and OWNER or required by Laws and Regulations). This insurance
will:
1. Include the interests of OWNER, DESIGN/BUILDER, Subcontractors, and any
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other persons or entities listed as an insured or additional insured;
2. Be written on a Builder's Risk "all-risk" or open peril or special causes
of loss policy form that shall at least include insurance for physical loss
and damage to the Construction, temporary buildings, falsework and all
materials and equipment in transit, and shall insure against at least the
following perils or causes of loss: fire, lightning, extended coverage,
theft, vandalism and malicious mischief, earthquake, collapse, debris
removal, demolition occasioned by enforcement of Laws and Regulations, water
damage, and such other perils or causes of loss as may be agreed in writing
by DESIGN/BUILDER and OWNER;
3. Include expenses incurred in the repair or replacement of any insured
property (including but not limited to fees and charges of engineers and
architects);
4. Cover materials and equipment stored at the Site or at another location
that was agreed to in writing by OWNER prior to being incorporated in the
Construction, provided that such materials and equipment have been included
in an Application for Payment approved by OWNER; and
5. Be maintained in effect until final payment is made unless otherwise
agreed to in writing by OWNER and DESIGN/BUILDER with thirty days written
notice to each other additional insured to whom a certificate of insurance
has been issued.
B. OWNER shall purchase and maintain such boiler and machinery insurance or
additional property insurance as may be required by the Supplementary Conditions
or Laws and Regulations which will include the interests of OWNER,
DESIGN/BUILDER, Subcontractors, and any other individuals or entities indicated
in the Supplementary Conditions, each of whom is deemed to have an insurable
interest and shall be listed as an insured or additional insured.
C. All the policies of insurance (and the certificates or other evidence
thereof) required to be purchased and maintained by OWNER in accordance with
paragraph 5.04 will contain a provision or endorsement that the coverage
afforded will not be cancelled or materially changed or renewal refused until at
least 30 days' prior written notice has been given to DESIGN/BUILDER and to each
other additional insured to whom a certificate of insurance has been issued and
will contain waiver provisions in accordance with paragraph 5.05.A.
D. OWNER shall not be responsible for purchasing and maintaining any
property insurance to protect the interests of DESIGN/BUILDER, Subcontractors,
Suppliers, Engineers or others in the Work to the extent of any deductible
amounts that are agreed in writing by DESIGN/BUILDER and OWNER. The risk of loss
within such identified deductible amount, will be borne by DESIGN/BUILDER,
Subcontractor or others suffering any such loss and if any of them wishes
property insurance coverage within the limits of such amounts, each may purchase
and maintain it at the purchaser's own expense.
E. If DESIGN/BUILDER requests in writing that other special insurance be
included in the property insurance policies provided under paragraph 5.04, OWNER
shall, if possible, include such insurance, and the cost thereof will be charged
to DESIGN/BUILDER by appropriate Change Order or Written Amendment. Prior to
commencement of the Work at the Site, OWNER shall in writing advise
DESIGN/BUILDER whether or not such other insurance has been procured by OWNER.
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5.05 WAIVER OF RIGHTS
A. OWNER and DESIGN/BUILDER intend that all policies purchased in accordance
with paragraph 5.04 will protect OWNER, DESIGN/BUILDER, Engineers,
Subcontractors, and all other individuals or entities listed as insureds or
additional insureds in such policies and will provide primary coverage for all
losses and damages caused by the perils or causes of loss covered thereby. All
such policies shall contain provisions to the effect that in the event of
payment of any loss or damage the insurers will have no rights of recovery
against any of the insureds or additional insureds thereunder. OWNER and
DESIGN/BUILDER waive all rights against each other and their respective
officers, directors, employees and agents for all losses and damages caused by,
arising out of or resulting from any of the perils or causes of loss covered by
such policies and any other property insurance applicable to the Work; and, in
addition, waive all such rights against Subcontractors, Suppliers, Engineers and
all other individuals or entities listed as insureds or additional insureds
under such policies for losses and damages so caused. None of the above waivers
shall extend to the rights that any party making such waiver may have to the
proceeds of insurance held by OWNER as trustee or otherwise payable under any
policy so issued. In addition, OWNER waives all rights against DESIGN/BUILDER,
Subcontractors, Engineers and Suppliers and the officers, directors, employees
and agents of any of them for business interruption, loss of use of OWNER's
property and any other consequential damages caused by, arising out of or
resulting from any of such insured perils or causes of loss or any other peril
or cause of loss whether or not insured.
5.06 RECEIPT AND APPLICATION OF PROCEEDS
A. Any insured loss under the policies of insurance required by paragraph
5.04 will be adjusted with OWNER and made payable to OWNER as fiduciary for the
insureds, as their interests may appear, subject to the requirements of any
applicable mortgage clause and of paragraph 5.06.B. OWNER shall deposit in a
separate account any money so received, and shall distribute it in accordance
with such agreement as the parties in interest may reach. If no other special
agreement is reached the damaged Work shall be repaired or replaced, the moneys
so received applied on account thereof and the Work and the cost thereof covered
by an appropriate Change Order or Written Amendment.
B. OWNER as fiduciary shall have power to adjust and settle any loss with
the insurers unless one of the parties in interest shall object in writing
within fifteen days after the occurrence of loss to OWNER's exercise of this
power. If such objection be made, OWNER as fiduciary shall make settlement with
the insurers in accordance with such agreement as the parties in interest may
reach. If no such agreement among the parties in interest is reached, OWNER as
fiduciary shall adjust and settle the loss with the insurers and, if required in
writing by any party in interest, OWNER as fiduciary shall give bond for the
proper performance of such duties.
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5.07 ACCEPTANCE OF BONDS AND INSURANCE; OPTION TO REPLACE
A. If either party has any objection to the coverage afforded by or other
provisions of the Bonds or insurance required to be purchased and maintained by
the other party in accordance with Article 5 on the basis of their not complying
with the Contract Documents, the objecting party shall so notify the other party
in writing within ten days after receipt of the certificates (or other evidence
requested) required by paragraph 2.04.B. OWNER and DESIGN/BUILDER shall each
provide to the other such additional information in respect of insurance
provided as the other may reasonably request. If either party does not purchase
or maintain all of the Bonds and insurance required of such party by the
Contract Documents, such party shall notify the other party in writing of such
failure to purchase prior to the start of the Work, or of such failure to
maintain prior to any change in the required coverage. Without prejudice to any
other right or remedy, the other party may elect to obtain equivalent Bonds or
insurance to protect such other party's interests at the expense of the party
who was supposed to provide such coverage, and a Change Order or Written
Amendment shall be issued to adjust the Contract Price accordingly.
5.08 LICENSED SURETIES AND INSURERS; CERTIFICATES OF INSURANCE
A. All Bonds and insurance required by the Contract Documents to be
purchased and maintained by OWNER or DESIGN/BUILDER shall be obtained from
surety or insurance companies that are duly licensed or authorized in the
jurisdiction in which the Project is located to issue Bonds or insurance
policies for the limits and coverages so required. Such surety and insurance
companies shall also meet such additional requirements and qualifications as may
be agreed in writing by DESIGN/BUILDER and OWNER.
B. DESIGN/BUILDER shall deliver to OWNER, with copies to each additional
insured, certificates of insurance (and other evidence of insurance requested by
OWNER or any other additional insured) which DESIGN/BUILDER is required to
purchase and maintain in accordance with paragraph 5.02.A. OWNER shall deliver
to DESIGN/BUILDER, with copies to each additional insured, certificates of
insurance (and other evidence of insurance requested by DESIGN/BUILDER or any
other additional insured) which OWNER is required to purchase and maintain in
accordance with paragraphs 5.04.A and 5.04.B.
ARTICLE 6--DESIGN/BUILDER'S RESPONSIBILITIES
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6.01 DESIGN PROFESSIONAL SERVICES
A. STANDARD OF CARE: DESIGN/BUILDER shall perform or furnish Design
Professional Services and related services in all phases of the Project. The
standard of care for all such services performed or furnished under this
Agreement will be the care and skill ordinarily used by members of the
engineering profession practicing under similar conditions at the same time and
locality.
B. PRELIMINARY DESIGN PHASE: After the Contract Times commence to run,
DESIGN/BUILDER shall:
1. Consult with OWNER to understand OWNER's requirements for the Project and
review available data.
2. Advise OWNER as to the necessity of OWNER's providing or obtaining from
others additional reports, data or services of the types provided in
paragraph 8.01.A.6.a-f and assist OWNER in obtaining such reports, data, or
services.
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3. Identify and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by
DESIGN/BUILDER with whom consultation is to be undertaken in connection with
the Project.
4. Obtain such additional geotechnical and related information which it
deems necessary for performance of the Work.
5. Prepare preliminary design documents consisting of final design criteria,
preliminary drawings, outline specifications, and written descriptions of
the Project.
6. Furnish the preliminary design documents to and review them with OWNER
within the time indicated in the schedules described in paragraph 2.06.A.
C. FINAL DESIGN PHASE: After written acceptance by OWNER of the preliminary
design phase documents DESIGN/BUILDER shall:
1. On the basis of the accepted Preliminary Design Phase documents, prepare
final Drawings showing the scope, extent, and character of the Construction
to be performed and furnished by DESIGN/BUILDER and Specifications.
2. Provide technical criteria, written descriptions and design data required
for obtaining approvals of such governmental authorities as have
jurisdiction to review or approve the final design of the Project, and
assist OWNER in consultations with appropriate authorities.
3. Furnish the above documents, Drawings and Specifications to and review
them with OWNER within the time indicated in the schedules described in
paragraph 2.06.A.
D. OPERATIONAL PHASE: During the Operational Phase, DESIGN/BUILDER shall:
1. Provide assistance in connection with the start-up, testing, refining and
adjusting of any equipment or system.
2. Assist OWNER in training staff to operate and maintain the Project.
3. Assist OWNER in developing systems and procedures for control of the
operation and maintenance of and record keeping for the Project.
6.02 SUPERVISION AND SUPERINTENDENCE OF CONSTRUCTION
A. DESIGN/BUILDER shall supervise, inspect and direct the Construction
competently and efficiently, devoting such attention thereto and applying such
skills and expertise as may be necessary to provide the Construction in
accordance with the Contract Documents. DESIGN/BUILDER shall be solely
responsible for the means, methods, techniques, sequences and procedures
employed for the provision of Construction. DESIGN/BUILDER shall be responsible
to see that the completed Construction complies accurately with the Contract
Documents and shall keep OWNER advised as to the quality and progress of the
Construction.
B. DESIGN/BUILDER shall keep on the Site at all times during construction a
competent resident superintendent, who shall not be replaced without written
notice to OWNER except under extraordinary circumstances. The superintendent
will be DESIGN/BUILDER's representative at the Site and shall have authority to
act on behalf of DESIGN/BUILDER. All communications to the superintendent shall
be as binding as if given to DESIGN/BUILDER.
6.03 LABOR, MATERIALS AND EQUIPMENT
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A. DESIGN/BUILDER shall provide competent, suitably qualified personnel to
survey and lay out the Construction and perform Construction as required by the
Contract Documents. DESIGN/BUILDER shall at all times maintain good discipline
and order at the Site. Except as otherwise required for the safety or protection
of persons or the Work or property at the Site or adjacent thereto, and except
as otherwise indicated in the Contract Documents, all Construction at the Site
shall be performed during regular working hours, and DESIGN/BUILDER will not
permit overtime work or the performance of Construction on Saturday, Sunday or
any legal holiday without OWNER's written consent, which will not be
unreasonably withheld.
B. Unless otherwise specified in the Contract Documents, DESIGN/BUILDER
shall furnish or cause to be furnished and assume full responsibility for
materials, equipment, labor, transportation, construction equipment and
machinery, tools, appliances, fuel, power, light, heat, telephone, water,
sanitary facilities, temporary facilities and all other facilities and
incidentals necessary for the furnishing, performance, testing, start-up and
completion of the Work. DESIGN/BUILDER, in the presence of OWNER's personnel,
will direct the checkout of utilities and operations of systems and equipment.
C. All materials and equipment incorporated into the Work shall be of good
quality and new, except as otherwise provided in the Contract Documents. All
warranties and guarantees specifically called for by the Contract Documents
shall expressly run to the benefit of OWNER. If required by OWNER,
DESIGN/BUILDER shall furnish satisfactory evidence (including reports of
required tests) as to the kind and quality of materials and equipment. All
materials and equipment shall be applied, installed, connected, erected, used,
cleaned and conditioned in accordance with instructions of the applicable
Supplier, except as otherwise provided in the Contract Documents.
6.04 PROGRESS SCHEDULE
A. DESIGN/BUILDER shall adhere to the progress schedule established in
accordance with paragraph 2.06.A as it may be adjusted from time to time.
1. DESIGN/BUILDER shall submit to OWNER for acceptance proposed adjustments
in the progress schedule that will not change the Contract Times. Such
adjustments will conform generally to the progress schedule then in effect.
2. Proposed adjustments in the progress schedule that will change the
Contract Times shall be submitted in accordance with the requirements of
Article 11. Such adjustments may only be made by a Change Order or Written
Amendment.
6.05 CONCERNING SUBCONTRACTORS, SUPPLIERS AND OTHERS
A. DESIGN/BUILDER shall not employ any Subcontractor, Engineer, Supplier or
other individual or entity against whom OWNER may have reasonable objection.
DESIGN/BUILDER shall not be required to employ any Subcontractor, Engineer,
Supplier or other individual or entity to furnish or perform any of the Work
against whom DESIGN/BUILDER has reasonable objection.
B. DESIGN/BUILDER shall be fully responsible to OWNER for all acts and
omissions of the Subcontractors, Engineers, Suppliers and other individuals or
entities performing or furnishing any of the Work under a direct or indirect
contract with DESIGN/BUILDER. Nothing in the Contract Documents shall create for
the benefit of any such Subcontractor, Engineer, Supplier or other individual or
entity any contractual relationship between OWNER and any such Subcontractor,
Engineer, Supplier or other individual or entity, nor shall it create any
obligation on the part of OWNER to pay or to see to the payment of any moneys
due any such Subcontractor, Engineer, Supplier or other
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individual or entity except as may otherwise be required by Laws and
Regulations.
C. DESIGN/BUILDER shall be solely responsible for scheduling and
coordinating Subcontractors, Engineers, Suppliers and other individuals and
entities performing or furnishing any of the Work under a direct or indirect
contract with DESIGN/BUILDER. DESIGN/BUILDER shall require all Subcontractors,
Engineers, Suppliers and such other individuals and entities performing or
furnishing any of the Work to communicate with the OWNER through DESIGN/BUILDER.
D. All services performed or provided to and material and equipment supplied
to DESIGN/BUILDER by a Subcontractor or Supplier will be pursuant to an
appropriate Design Subagreement or Construction Subagreement between
DESIGN/BUILDER and the Subcontractor, Engineer or Supplier which specifically
binds the Subcontractor, Engineer or Supplier to the applicable terms and
conditions of the Contract Documents for the benefit of OWNER. Whenever any such
agreement is with a Subcontractor, Engineer or Supplier who is listed as an
additional insured on the property insurance provided in paragraph 5.04.A or
5.04.B, the agreement between the DESIGN/BUILDER and the Subcontractor, Engineer
or Supplier will contain provisions whereby the Subcontractor, Engineer or
Supplier waives all rights against OWNER, DESIGN/BUILDER, and all other
additional insureds for all losses and damages caused by any of the perils or
causes of loss covered by such policies and any other property insurance
applicable to the Work. If the insurers on any such policies require separate
waiver forms to be signed by any Subcontractor, Engineer or Supplier,
DESIGN/BUILDER will obtain the same.
6.06 PATENT FEES AND ROYALTIES
A. DESIGN/BUILDER shall pay all license fees and royalties and assume all
costs incident to the use in the performance of the Work or the incorporation in
the Work of any invention, design, process, product or device which is the
subject of patent rights or copyrights held by others. To the fullest extent
permitted by Laws and Regulations, DESIGN/BUILDER shall indemnify and hold
harmless OWNER, from and against all claims, costs, losses and damages
(including but not limited to all fees and charges of engineers, architects,
attorneys and other professionals and all court or arbitration or other dispute
resolution costs) arising out of or resulting from any infringement of patent
rights or copyrights incident to the use in the performance of the Work or
resulting from the incorporation in the Work of any invention, design, process,
product or device.
6.07 PERMITS
A. Unless otherwise provided in the Contract Documents, DESIGN/BUILDER shall
directly or through one or more Subcontractors obtain and pay for all necessary
permits and licenses. OWNER shall assist DESIGN/BUILDER, when necessary, in
obtaining such permits and licenses. DESIGN/BUILDER shall pay all governmental
charges and inspection fees necessary for the prosecution of the Construction,
which are applicable on the Effective Date of the Agreement. DESIGN/BUILDER
shall pay all charges of utility owners for connections to the Work, and OWNER
shall pay all charges of such utility owners for capital costs related thereto.
6.08 LAWS AND REGULATIONS
A. DESIGN/BUILDER shall give all notices and comply with all Laws and
Regulations of the place of the Project which are applicable to furnishing and
performance of the Work. Except where otherwise expressly required by applicable
Laws and Regulations, OWNER shall not be responsible for monitoring
DESIGN/BUILDER's compliance with any Laws or Regulations.
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B. If DESIGN/BUILDER performs any Work knowing or having reason to know that
it is contrary to Laws or Regulations, DESIGN/BUILDER shall bear all costs
arising therefrom.
C. Changes in Laws and Regulations not known or foreseeable on the Effective
Date of the Agreement having an effect on the cost or time of performance may be
the subject of a claim under Article 9.
6.09 TAXES
A. DESIGN/BUILDER shall pay all sales, consumer, use, gross receipts and
other similar taxes required to be paid by DESIGN/BUILDER in accordance with the
Laws and Regulations of the place of the Project which are applicable during the
performance of the Work.
6.10 USE OF SITE AND OTHER AREAS
A. DESIGN/BUILDER shall confine construction equipment, the storage of
materials and equipment and the operations of construction workers to those
lands and areas permitted by the OWNER and other land and areas permitted by
Laws and Regulations, rights-of-way, permits and easements, and shall not
unreasonably encumber the premises with construction equipment or other
materials or equipment. DESIGN/BUILDER shall assume full responsibility for any
damage to any such land or area, or to the owner or occupant thereof or of any
adjacent land or areas, resulting from the performance of the Construction.
Should any claim be made by any such owner or occupant because of the
performance of the Construction, DESIGN/BUILDER shall promptly settle with such
other party by negotiation or otherwise resolve the claim by arbitration or
other dispute resolution proceeding or at law. DESIGN/BUILDER shall, to the
fullest extent permitted by Laws and Regulations, indemnify and hold harmless
OWNER and anyone directly or indirectly employed by OWNER from and against all
claims, costs, losses and damages (including, but not limited to, reasonable
fees of engineers, architects, attorneys and other professionals and court and
arbitration or other dispute resolution costs) arising out of or resulting from
any claim or action, legal or equitable, brought by any such owner or occupant
against OWNER, or any other party indemnified hereunder to the extent caused by
or based upon DESIGN/BUILDER's performance of the Construction.
B. During the performance of the Construction, DESIGN/BUILDER shall keep the
premises free from accumulations of waste materials, rubbish and other debris
resulting from the Construction. At the completion of the Construction
DESIGN/BUILDER shall remove all waste materials, rubbish and debris from and
about the premises as well as all tools, appliances, construction equipment,
temporary construction and machinery and surplus materials.
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DESIGN/BUILDER shall leave the Site clean and ready for occupancy by OWNER at
Substantial Completion. DESIGN/BUILDER shall restore to original condition all
property not designated for alteration by the Contract Documents.
C. DESIGN/BUILDER shall not load nor permit any part of any structure to be
loaded in any manner that will endanger the structure, nor shall DESIGN/ BUILDER
subject any part of the Work or adjacent property to stresses or pressures that
will endanger it.
6.11 RECORD DOCUMENTS
A. DESIGN/BUILDER shall maintain in a safe place at the Site one record copy
of all Drawings, Specifications, Written Amendments, Change Orders, Field Orders
and Work Change Directives, in good order and annotated to show all changes made
during Construction. These record documents together with all approved
Submittals will be available to OWNER for reference. Upon completion of the
Work, these record documents and Submittals, including a reproducible set of
record drawings, will be delivered to OWNER.
6.12 SAFETY AND PROTECTION
A. DESIGN/BUILDER shall be solely responsible for initiating, maintaining
and supervising all safety precautions and programs in connection with the
Construction. DESIGN/BUILDER shall take all necessary precautions for the safety
of, and shall provide the necessary protection to prevent damage, injury or loss
to:
1. all persons on the Site or who may be affected by the Construction;
2. all Work and materials and equipment to be incorporated therein, whether
in storage on or off the Site; and
3. other property at the Site or adjacent thereto, including trees, shrubs,
lawns, walks, pavements, roadways, structures, utilities and underground
facilities not designated for removal, relocation or replacement in the
course of construction.
B. DESIGN/BUILDER shall comply with applicable Laws and Regulations of any
public body having jurisdiction for safety of persons or property or to protect
them from damage, injury or loss; and shall erect and maintain all necessary
safeguards for such safety and protection. DESIGN/BUILDER shall notify owners of
adjacent property and of underground facilities and utility owners when
prosecution of the Work may affect them, and shall cooperate with them in the
protection, removal, relocation and replacement of their property. All damage,
injury or loss to any property caused, directly or indirectly, in whole or in
part, by DESIGN/BUILDER, any Subcontractor, Supplier or any other individual or
entity directly or indirectly employed by any of them to perform or furnish any
of the Work or anyone for whose acts any of them may be liable, shall be
remedied by DESIGN/BUILDER. DESIGN/BUILDER's duties and responsibilities for
safety and for protection of the construction shall continue until such time as
all the Work is completed and OWNER has issued a notice to DESIGN/BUILDER in
accordance with paragraph 13.09 that the Work is acceptable (except as otherwise
expressly provided in connection with Substantial Completion).
6.13 SAFETY REPRESENTATIVE
A. DESIGN/BUILDER shall designate a qualified and experienced safety
representative at the Site whose duties and responsibilities shall be the
prevention of accidents and the maintaining and supervising of safety
precautions and programs.
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6.14 HAZARD COMMUNICATION PROGRAMS
A. DESIGN/BUILDER shall be responsible for coordinating any exchange of
material safety data sheets or other hazard communication information required
to be made available to or exchanged between or among employers at the Site in
accordance with Laws or Regulations.
6.15 EMERGENCIES
A. In emergencies affecting the safety or protection of persons or the
construction or property at the Site or adjacent thereto, DESIGN/BUILDER,
without special instruction or authorization from OWNER, is obligated to act to
prevent threatened damage, injury or loss. DESIGN/BUILDER shall give OWNER
prompt written notice if DESIGN/BUILDER believes that any significant changes in
the Construction or variations from the Contract Documents have been caused
thereby. If a change in the Contract Documents is required because of the action
taken by DESIGN/BUILDER in response to such an emergency, a Work Change
Directive or Change Order will be issued to document the consequences of such
action.
6.16 SUBMITTALS
A. OWNER will review and approve Submittals in accordance with the schedule
of required Submittals accepted by OWNER as required by paragraph 2.06.A.
OWNER's review and approval will be only to determine if the items covered by
the Submittals will, after installation or incorporation in the Construction,
conform to the information given in the Contract Documents and be compatible
with the design concept of the completed Project as a functioning whole as
indicated by the Contract Documents. OWNER's review and approval will not extend
to means, methods, techniques, sequences or procedures of construction (except
where a particular means, method, technique, sequence or procedure of
construction is specifically and expressly called for by the Contract Documents)
or to safety precautions or programs incident thereto. The review and approval
of a separate item as such will not indicate approval of the assembly in which
the item functions. DESIGN/BUILDER shall make corrections required by OWNER, and
shall return the required number of corrected copies of the required Submittal
for review and approval. DESIGN/BUILDER shall direct specific attention in
writing to revisions other than the corrections called for by OWNER on previous
Submittals.
B. OWNER's review and approval of required Submittals shall not relieve
DESIGN/BUILDER from responsibility for any variation from the requirements of
the Contract Documents unless DESIGN/BUILDER has in writing called OWNER's
attention to each such variation at the time of submission and OWNER has given
written approval of each such variation by specific written notation thereof
incorporated in or accompanying the Submittal.
C. Where a Submittal is required by the Contract Documents or the final
schedule of Submittals accepted by OWNER as required by paragraph 2.06.A, any
related Construction provided prior to OWNER's review and approval of the
pertinent Submittal will be at the sole expense and responsibility of
DESIGN/BUILDER.
6.17 CONTINUING THE WORK
A. DESIGN/BUILDER shall carry on the Work and adhere to the progress
schedule during all disputes or disagreements with OWNER. No Work shall be
delayed or postponed pending resolution of any disputes or disagreements, except
as DESIGN/BUILDER and OWNER may otherwise agree in writing or as otherwise
provided in the Contract Document.
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6.18 DESIGN/BUILDER'S GENERAL WARRANTY AND GUARANTEE
A. DESIGN/BUILDER warrants and guarantees to OWNER that all Construction
will be in accordance with the Contract Documents and will not be DEFECTIVE.
DESIGN/BUILDER's warranty and guarantee hereunder excludes defects or damage
caused by:
1. Abuse, modification or improper maintenance or operation by persons other
than DESIGN/BUILDER, Subcontractors or Suppliers; or
2. Normal wear and tear under normal usage.
B. DESIGN/BUILDER's obligation to perform and complete the Work in
accordance with the Contract Documents shall be absolute. None of the following
will constitute an acceptance of Work that is not in accordance with the
Contract Documents or a release of DESIGN/BUILDER's obligation to perform the
Work in accordance with the Contract Documents:
1. Observations by OWNER;
2. The making of any progress or final payment;
3. The issuance of a certificate of Substantial Completion;
4. Use or occupancy of the Work or any part thereof by OWNER;
5. Any acceptance by OWNER or any failure to do so;
6. Any review and approval of a Submittal;
7. Any inspection, test or approval by others; or
8. Any correction of DEFECTIVE Construction by OWNER.
6.19 INDEMNIFICATION
A. DESIGN/BUILDER shall indemnify and hold harmless OWNER, OWNER's officers,
directors, employees, agents and consultants from and against all claims, costs,
losses and damages (including but not limited to all reasonable fees and charges
of engineers, architects, attorneys and other professionals and all court or
arbitration or other dispute resolution costs) arising out of or resulting from
the performance of Construction, provided that any such claim, cost, loss or
damage is attributable to bodily injury, sickness, disease or death, or to
injury to or destruction of tangible property (other than the Work itself),
including the loss of use resulting therefrom, but only to the extent such
claim, cost or damage is caused by any negligent act or omission of
DESIGN/BUILDER, any Subcontractor, Engineer, any Supplier, any individual or
entity directly or indirectly employed by any of them to perform or furnish any
of the Work or anyone for whose acts any of them may be liable.
B. In any and all claims against OWNER or any of their respective
consultants, agents, officers, directors or employees by any employee (or the
survivor or personal representative of such employee) of DESIGN/BUILDER, any
Subcontractor, any Engineer, any Supplier, any individual or entity directly or
indirectly employed by any of them to perform or furnish any of the Work or
anyone for whose acts any of them may be liable, the indemnification obligation
under paragraph 6.19.A shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable by or for
DESIGN/BUILDER or any such Subcontractor, Engineer, Supplier or other individual
or entity under workers' compensation acts, disability benefit acts or other
employee benefit acts.
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C. The indemnification obligations of DESIGN/BUILDER under paragraph 6.19.A
shall not extend to the liability of OWNER's, officers, directors, employees or
agents arising out of the preparation or approval of maps, drawings, opinions,
reports, surveys, designs, or specifications.
ARTICLE 7--OTHER CONSTRUCTION
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7.01 RELATED CONSTRUCTION AT SITE
A. OWNER may perform other Work related to the Project at the Site by
OWNER's own forces, or let other direct contracts therefor or have other work
performed by utility owners. Written notice thereof will be given to
DESIGN/BUILDER prior to starting any such other work and (ii) DESIGN/BUILDER may
make a claim therefor as provided in Article 9 if DESIGN/BUILDER believes that
such performance will involve additional expense to DESIGN/BUILDER or requires
additional time and the parties are unable to agree as to the amount or extent
thereof.
B. DESIGN/BUILDER shall afford each other contractor who is a party to such
a direct contract and each utility owner (and OWNER, if OWNER is performing the
additional work with OWNER's employees) proper and safe access to the Site and a
reasonable opportunity for the introduction and storage of materials and
equipment and the execution of such other work and shall properly connect and
coordinate the Construction with theirs. Unless otherwise provided in the
Contract Documents, DESIGN/BUILDER shall do all cutting, fitting and patching of
the Work that may be required to make its several parts come together properly
and integrate with such other work. DESIGN/BUILDER shall not endanger any work
of others by cutting, excavating or otherwise altering their work and will only
cut or alter their work with the written consent of OWNER and the others whose
work will be affected. The duties and responsibilities of DESIGN/BUILDER under
this paragraph are for the benefit of such utility owners and other contractors
to the extent that there are comparable provisions for the benefit of
DESIGN/BUILDER in said direct contracts between OWNER and such utility owners
and other contractors.
C. If the proper execution or results of any part of DESIGN/BUILDER's Work
depends upon work performed or services provided by others under this Article 7,
DESIGN/BUILDER shall inspect such other work and appropriate instruments of
service and promptly report to OWNER in writing any delays, defects or
deficiencies in such other work or services that render it unavailable or
unsuitable for the proper execution and results of DESIGN/BUILDER's Work.
DESIGN/BUILDER's failure so to report will constitute an acceptance of such
other work as fit and proper for integration with DESIGN/BUILDER's Work except
for latent or nonapparent defects and deficiencies in such other work.
ARTICLE 8--OWNER'S RESPONSIBILITIES
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8.01 GENERAL
A. OWNER shall do the following in a timely manner so as not to delay the
services of DESIGN/BUILDER.
1. Designate in writing a person to act as OWNER's representative with
respect to the services to be rendered under this Agreement.
2. Provide such legal services as OWNER may require with regard to legal
issues pertaining to the Project including any that may be raised by
DESIGN/BUILDER.
3. If requested in writing by DESIGN/BUILDER, furnish reasonable evidence
satisfactory to DESIGN/BUILDER, that sufficient funds are available and
committed for the entire cost of the Project. Unless such
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reasonable evidence is furnished, DESIGN/BUILDER is not required to commence
or continue any Work, or may, if such evidence is not presented within a
reasonable time, stop Work upon 15 days notice to the Owner.
4. Make payments to DESIGN/BUILDER promptly when they are due as provided in
paragraph 13.04 and 13.08.
5. Furnish lands and easements as set forth in paragraph 4.01.A.
6. Furnish to DESIGN/BUILDER, as required for performance of
DESIGN/BUILDER's services the following, all of which DESIGN/BUILDER may use
and rely upon in performing services under this Agreement:
a. Environmental assessment and impact statements;
b. Property, boundary, easement, right-of-way, topographic and
utility surveys;
c. Property descriptions;
d. Zoning, deed and other land use restrictions;
e. Engineering surveys to establish reference points for design and
construction which in OWNER's judgment are necessary to enable
DESIGN/BUILDER to proceed with the Work;
f. Assistance in filing documents required to obtain necessary
approvals of governmental authorities having jurisdiction over the
Project; and
g. Subsurface data.
7. Review submittals subject to OWNER review pursuant to paragraph 6.16.A.
8. Provide information known to or in the possession of OWNER relating to
the presence of materials and substances at the site which could create a
Hazardous Condition.
B. OWNER's responsibilities in respect of purchasing and maintaining
liability and property insurance are set forth in paragraphs 5.03.A through
5.04.E.
8.02 SCOPE OF OWNER'S SAFETY AND HAZARDOUS WASTE RESPONSIBILITIES
A. OWNER shall not supervise, direct or have control or authority over, nor
be responsible for, DESIGN/BUILDER's means, methods, techniques, sequences or
procedures of Construction or the safety precautions and programs incident
thereto, or for any failure of DESIGN/BUILDER to comply with Laws and
Regulations applicable to the furnishing or performance of the Work. OWNER will
not be responsible for DESIGN/BUILDER's failure to perform or furnish the Work
in accordance with the Contract Documents.
B. OWNER'S responsibility in respect of undisclosed Asbestos, PCBs,
Petroleum, Hazardous Waste or Radioactive Materials uncovered or revealed at the
Site is set forth in paragraph 4.04.
8.03 TAX CLAIM INDEMNIFICATION
A. OWNER represents and warrants that the services provided and the property
purchased in connection with the Work are exempt from sales, consumer use, gross
receipts and other similar taxes. OWNER agrees to file any and all necessary
applications to obtain such exemption for such services and property. OWNER
shall indemnify, defend and hold harmless DESIGN/BUILDER from and against any
liability, penalty, interest, fine, tax assessment, reasonable attorneys' fees
or other expenses or costs incurred by DESIGN/BUILDER as a result of any action
taken or omission by
<Page>
DESIGN/BUILDER in accordance with such representation.
8.04 GENERAL INDEMNIFICATION
A. 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 reasonable 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 or OWNER'S separate contractors or anyone for whose acts any of them may
be liable.
ARTICLE 9--CHANGES IN THE WORK; CLAIMS
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9.01 GENERAL--RIGHTS AND OBLIGATIONS
A. Without invalidating the Agreement and without notice to any surety,
OWNER may, at any time or from time to time, order additions, deletions or
revisions in the Work within the general scope of the contract by a Written
Amendment, a Change Order, or a Work Change Directive. Upon receipt of any such
document, DESIGN/BUILDER shall promptly proceed with the Work involved which
will be performed under the applicable provisions of the Contract Documents
(except as otherwise specifically provided).
9.02 NOTICE OF INTENT TO MAKE CLAIM
A. If OWNER and DESIGN/BUILDER are unable to agree as to the extent, if any,
of an adjustment in the Contract Price or an adjustment of the Contract Times
that should be allowed as a result of any order of OWNER pursuant to paragraph
9.01.A or other occurrence for which the Contract Documents provide that such
adjustment(s) may be made, a claim may be made therefor. Written notice of
intent to make such a claim shall be submitted to the other party promptly and
in no event more than 30 days after the start of the occurrence or event giving
rise to the claim.
9.03 CLAIM DOCUMENTATION
A. Substantiating documentation shall be submitted by the claiming party
within 30 days after delivery of the notice required by paragraph 9.02.A.
9.04 DECISION
A. The other party shall render a decision on the claim no more than 30 days
after the receipt of the substantiating documentation required by paragraph
9.03.A. This decision will be final and binding unless the claiming party gives
notice of intention to exercise its rights under Article 15 within 30 days of
receipt of the decision and exercises such rights within 30 days of giving the
notice of intent.
9.05 TIME LIMIT EXTENSION
A. The time limits of paragraphs 9.03.A and 9.04.A may be extended by mutual
agreement.
9.06 EXCEPTIONS
A. DESIGN/BUILDER shall not be entitled to an increase in the Contract Price
or an extension of the Contract Times with respect to any Work performed that is
not required by the Contract Documents as amended, modified and supplemented as
provided in paragraph 3.03, except in the case of
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an emergency as provided in paragraph 6.15 or in the case of uncovering
Construction as provided in paragraph 12.04.
9.07 EXECUTION OF CHANGE ORDERS
A. OWNER and DESIGN/BUILDER shall execute appropriate Change Orders or
Written Amendments covering:
1. changes in the Work which are (i) ordered by OWNER pursuant to paragraph
9.01, (ii) required because of acceptance of DEFECTIVE Construction under
paragraph 12.08 or correcting DEFECTIVE Work under paragraph 12.09 or (iii)
agreed to by the parties; and
2. changes in the Contract Price or Contract Times which are agreed to by
the parties.
9.08 NOTICE TO SURETIES
A. If notice of any change affecting the general scope of the Work or the
provisions of the Contract Documents (including, but not limited to, Contract
Price or Contract Times) is required by the provisions of any Bond to be given
to a surety, the giving of any such notice will be DESIGN/BUILDER's
responsibility, and the amount of each applicable Bond will be adjusted
accordingly.
ARTICLE 10--CHANGE OF CONTRACT PRICE
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10.01 GENERAL
A. The Contract Price constitutes the total compensation (subject to
authorized adjustments) payable to DESIGN/BUILDER for performing the Work.
B. The Contract Price may only be changed by a Change Order or by a Written
Amendment. Any claim for an adjustment in the Contract Price shall be based on
written notice delivered by the party making the claim to the other party
promptly in accordance with paragraph 9.02.A.
C. The value of any Work covered by a Change Order or of any claim for an
adjustment in the Contract Price will be determined as follows:
1. Where the Work involved is covered by unit prices contained in the
Contract Documents, by application of such unit prices to the quantities of
the items involved;
2. Where the Work involved is not covered by unit prices contained in the
Contract Documents, by a mutually agreed lump sum (which may include an
allowance for overhead and profit not necessarily in accordance with
paragraph 10.02) or by mutually agreed unit prices;
3. Where the Work involved is not covered by unit prices contained in the
Contract Documents and agreement to a lump sum is not reached under
paragraph 10.01.C.2, on the basis of the Cost of the Work (determined as
provided in paragraph 10.02) plus a DESIGN/BUILDER's Fee for overhead and
profit (determined as provided in paragraph 10.02.C).
10.02 COST OF THE WORK
A. COSTS INCLUDED: The term Cost of the Work means the sum of all costs
necessarily incurred and paid by DESIGN/BUILDER in the proper performance of the
Work. Except as otherwise may be agreed to in writing by OWNER, such costs shall
be in amounts no higher than those prevailing in the locality of the Project,
shall include only the following items and shall not include any of the costs
itemized in paragraph 10.02.B:
1. Payroll costs for employees in the direct employ of DESIGN/BUILDER in the
performance of the Work under schedules of job classifications agreed upon
by OWNER and DESIGN/BUILDER.
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a. Such employees shall include without limitation superintendents,
foremen and other personnel employed full-time at the Site. Payroll
costs for employees not employed full time on the Site shall be
apportioned on the basis of their time spent on the Site. Payroll costs
shall include, but not be limited to, salaries and wages plus the cost
of fringe benefits which shall include social security contributions,
unemployment, excise and payroll taxes, workers' compensation, health
and retirement benefits, bonuses, sick leave, vacation and holiday pay
applicable thereto. The expenses of performing Work after regular
working hours, on Saturday, Sunday or legal holidays, shall be included
in the above to the extent authorized by OWNER.
b. Such employees shall also include engineers and engineering
technicians providing Design Professional Services. For purposes of this
paragraph 10.02.A.1, DESIGN/BUILDER shall be entitled to payment for
such employees an amount equal to salary costs times a factor, both as
designated in the Agreement, for all services performed or furnished by
such employees engaged on the Project.
2. Cost of all materials and equipment furnished and incorporated in the
Work, including costs of transportation and storage thereof, and Suppliers'
field services required in connection therewith. All cash discounts shall
accrue to DESIGN/BUILDER unless OWNER deposits funds with DESIGN/BUILDER
with which to make payments, in which case the cash discounts shall accrue
to OWNER. All trade discounts, rebates and refunds and returns from sale of
surplus materials and equipment shall accrue to OWNER, and DESIGN/BUILDER
shall make provisions so that they may be obtained.
3. Payments made by DESIGN/BUILDER to Subcontractors for Work performed or
furnished by Subcontractors.
4. Payments made by DESIGN/BUILDER to Engineers for Design Professional
Services provided or furnished by Engineers under a Design Subagreement.
5. Costs of special consultants (including but not limited to testing
laboratories, surveyors, attorneys and accountants) employed for services
specifically related to the Work.
6. Supplemental costs including the following items:
a. The proportion of necessary transportation, travel and
subsistence expenses of DESIGN/BUILDER's employees incurred in discharge
of duties connected with the Work.
b. Cost, including transportation and maintenance, of all materials,
supplies, equipment, machinery, appliances, office and temporary
facilities at the Site and hand tools not owned by the workers, which
are consumed in the performance of the Work, and cost less market value
of such items used but not consumed which remain the property of
DESIGN/BUILDER.
c. Rentals of all Work equipment and machinery and the parts thereof
whether rented from DESIGN/BUILDER or others in accordance with rental
agreements approved by OWNER, and the costs of transportation, loading,
unloading, installation, dismantling and removal thereof--all in
accordance with the terms of said rental agreements. The rental of any
such equipment, machinery or parts shall cease when the use thereof is
no longer necessary for the Work.
d. Sales, consumer, use or similar taxes related to the Work, and
for which
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DESIGN/BUILDER is liable, imposed by Laws and Regulations.
e. Deposits lost for causes other than negligence of DESIGN/BUILDER,
any Subcontractor or anyone directly or indirectly employed by any of
them or for whose acts any of them may be liable, and royalty payments
and fees for permits and licenses.
f. Losses, damages and related expenses caused by damage to the Work
not compensated by insurance or otherwise, sustained by DESIGN/BUILDER
in connection with the furnishing and performance of the Work provided
they have resulted from causes other than the negligence of
DESIGN/BUILDER, any Subcontractor, or anyone directly or indirectly
employed by any of them or for whose acts any of them may be liable.
Such losses shall include settlements made with the written consent and
approval of OWNER. No such losses, damages and expenses shall be
included in the Cost of the Work for the purpose of determining
DESIGN/BUILDER's fee. If, however, any such loss or damage requires
rework and DESIGN/BUILDER is placed in charge thereof, DESIGN/BUILDER
shall be paid for services a fee proportionate to that stated in
paragraph 10.02.C.
g. The cost of utilities, fuel and sanitary facilities at the Site.
h. Minor expenses such as telegrams, long distance telephone calls,
telephone service at the Site, expressage and similar petty cash items
in connection with the Work.
i. Cost of premiums for all Bonds and insurance DESIGN/BUILDER is
required by the Contract Documents to purchase and maintain.
B. COSTS EXCLUDED: The term Cost of the Work shall not include any of the
following:
1. Payroll costs and other compensation of DESIGN/BUILDER's officers,
executives, principals (of partnerships and sole proprietorships), general
managers, engineers, architects, estimators, attorneys, auditors,
accountants, purchasing and contracting agents, expediters, timekeepers,
clerks and other personnel employed by DESIGN/BUILDER whether at the Site or
in DESIGN/BUILDER's principal or a branch office for general administration
of the Work and not specifically included in the agreed upon schedule of job
classifications referred to in paragraph 10.02.A.1 -- all of which are to be
considered administrative costs covered by the DESIGN/BUILDER's fee.
2. Expenses of DESIGN/BUILDER's principal and branch offices other than
DESIGN/BUILDER's office at the Site.
3. Any part of DESIGN/BUILDER's capital expenses, including interest on
DESIGN/BUILDER's capital employed for the Work and charges against
DESIGN/BUILDER for delinquent payments.
4. Costs due to the negligence of DESIGN/BUILDER, any Subcontractor, or
anyone directly or indirectly employed by any of them or for whose acts any
of them may be liable, including but not limited to, the correction of
DEFECTIVE Work, disposal of materials or equipment wrongly supplied and
making good any damage to property.
5. Other overhead or general expense costs of any kind and the costs of any
item not specifically and expressly included in paragraph 10.02.
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C. FEE: The DESIGN/BUILDER's fee allowed to DESIGN/BUILDER for overhead and
profit on Change Orders priced by paragraph 10.01.C.3 shall be determined as
follows:
1. A mutually acceptable fixed fee; or
2. If a fixed fee is not agreed upon, then a fee based on the following
percentages of the various portions of the Cost of the Work:
a. Materials and equipment, the DESIGN/BUILDER'S fee shall be 15
percent;
b. For subcontracts , the DESIGN/ BUILDER's fee shall be five
percent;
c. Where one or more tiers of subcontracts are on the basis of Cost
of the Work plus a fee and no fixed fee is agreed upon, the intent of
paragraphs 10.02.A.1, 10.02.A.2 and 10.02.A.3 is that the Subcontractor
who actually performs or furnishes Work, at whatever tier, will be paid
a fee of 15 percent of the costs incurred by such Subcontractor under
paragraphs 10.02.A.1 and 10.02.A.2 and that any higher tier
Subcontractor and DESIGN/BUILDER will each be paid a fee of five percent
of the amount paid to the next lower tier Subcontractor;
d. The amount of credit to be allowed by DESIGN/BUILDER to OWNER for
any change which results in a net decrease in cost will be the amount of
the actual net decrease in cost plus a deduction in DESIGN/BUILDER's fee
by an amount equal to five percent of such net decrease; and
e. When both additions and credits are involved in any one change,
the adjustment in DESIGN/BUILDER's fee shall be computed on the basis of
the net change in accordance with paragraphs 10.02.C.2.a through
10.02.C.2.d, inclusive.
D. DOCUMENTATION: Whenever the cost of any Work is to be determined pursuant
to paragraph 10.02.A and 10.02.B, DESIGN/BUILDER will establish and maintain
records thereof in accordance with generally accepted accounting practices and
submit in a form acceptable to OWNER an itemized cost breakdown together with
supporting data.
10.03 CASH ALLOWANCES
A. The Contract Price includes all allowances so named in the Contract
Documents.
1. The allowances include the cost to DESIGN/BUILDER (less any
applicable trade discounts) of materials and equipment required by the
allowances to be delivered at the Site, and all applicable taxes; and
2. Except as set forth in the Contract Documents, DESIGN/BUILDER's costs
for unloading and handling on the Site, labor, installation costs, overhead,
profit and other expenses contemplated for the allowances have been included
in the Contract Price and not in the allowances and no demand for additional
payment on account of any of the foregoing will be valid.
B. Prior to final payment, an appropriate Change Order will be issued to
reflect actual amounts due DESIGN/BUILDER on account of Work covered by
allowances, and the Contract Price shall be correspondingly adjusted.
<Page>
ARTICLE 11--CHANGE OF CONTRACT TIMES
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11.01 GENERAL
A. The Contract Times may only be changed by a Change Order or a Written
Amendment. Any claim for an adjustment of the Contract Times shall be based on
written notice pursuant to paragraph 9.02.
B. All Contract Times are of the essence of the Agreement.
11.02 TIME EXTENSIONS
A. Where DESIGN/BUILDER is prevented from completing any part of the Work
within the Contract Times due to delay beyond the control of DESIGN/BUILDER, the
Contract Times will be extended in an amount equal to the time lost due to such
delay if a claim is made therefor as provided in Article 9. Delays beyond the
control of DESIGN/BUILDER shall include, but not be limited to, acts or neglect
by OWNER, governmental agencies, acts or neglect of utility owners or other
contractors performing other construction work as contemplated by Article 7,
fires, floods, epidemics, abnormal weather conditions or acts of God. Delays
attributable to and within the control of a Subcontractor or Supplier shall be
deemed to be delays within the control of DESIGN/BUILDER.
B. Nothing in this paragraph 11.02 bars a change in Contract Price pursuant
to Article 10 to compensate for the direct costs incurred by DESIGN/BUILDER due
to delay, interference, or disruption directly attributable to actions or
inactions of OWNER. However, OWNER shall not be liable to DESIGN/BUILDER for
costs or damages arising out of or resulting from (i) delays caused by or within
the control of DESIGN/BUILDER, or (ii) delays beyond the control of both parties
including but not limited to fires, floods, epidemics, abnormal weather
conditions, acts of God or acts or neglect by governmental agencies, utility
owners, or other contractors performing other work as contemplated by Article 7.
ARTICLE 12--TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF
DEFECTIVE CONSTRUCTION
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12.01 NOTICE OF DEFECTS
A. Prompt written notice of all DEFECTIVE Construction of which OWNER has
actual knowledge will be given to DESIGN/BUILDER by OWNER. All DEFECTIVE
Construction may be rejected, corrected or accepted as provided in this Article
12.
12.02 ACCESS TO CONSTRUCTION
A. OWNER, other representatives and personnel of OWNER, independent testing
laboratories and governmental agencies with jurisdictional interests will have
access to the Construction at the Site at reasonable times for their
observation, inspecting and testing. DESIGN/BUILDER shall provide them proper
and safe conditions for such access and advise them of DESIGN/BUILDER's Site
safety procedures and programs so that they may comply therewith as applicable.
12.03 TESTS AND INSPECTIONS
A. If the Contract Documents or Laws or Regulations of any public body
having jurisdiction require any part of the Construction specifically to be
inspected, tested or approved, DESIGN/BUILDER shall assume full responsibility
for arranging and obtaining such inspections, tests or approvals, pay all costs
in connection therewith, and furnish OWNER the required certificates of
inspection or approval. DESIGN/BUILDER shall also be responsible for arranging
and obtaining and shall pay all costs in
<Page>
connection with any inspections, tests or approvals required for OWNER's
acceptance of materials or equipment to be incorporated in the Construction or
of materials, mix designs, or equipment submitted for approval prior to
DESIGN/BUILDER's purchase thereof for incorporation in the Construction.
B. DESIGN/BUILDER shall give OWNER reasonable notice of the planned schedule
for all required inspections, tests or approvals.
C. If any Construction (or the construction work of others) that is required
to be inspected, tested or approved is covered by DESIGN/BUILDER without written
concurrence of OWNER, it must, if requested by OWNER, be uncovered for
observation at DESIGN/BUILDER's expense unless DESIGN/BUILDER has given OWNER
timely notice of DESIGN/BUILDER's intention to cover the same and OWNER has not
acted with reasonable promptness in response to such notice.
12.04 UNCOVERING CONSTRUCTION
A. If any Construction is covered contrary to the written request of OWNER,
it must, if requested by OWNER, be uncovered for OWNER's observation and
recovered at DESIGN/BUILDER's expense.
B. If OWNER considers it necessary or advisable that covered Construction be
observed by OWNER or inspected or tested by others, DESIGN/BUILDER, at OWNER's
request, shall uncover, expose or otherwise make available for observation,
inspection or testing as OWNER may require, that portion of the Construction in
question, furnishing all necessary labor, material and equipment. If it is found
that such Construction is DEFECTIVE, DESIGN/BUILDER shall pay all costs and
damages caused by or resulting from such uncovering, exposure, observation,
inspection and testing and of satisfactory replacement or rework, (including but
not limited to all reasonable fees and charges of engineers, architects,
attorneys and other professionals, all court or arbitration or other dispute
resolution costs, and all costs of repair or replacement of work of others); and
OWNER shall be entitled to an appropriate decrease in the Contract Price, and,
if the parties are unable to agree as to the amount thereof, may make a claim
therefor as provided in Article 9. If, however, such Construction is not found
to be DEFECTIVE, DESIGN/BUILDER shall be allowed an increase in the Contract
Price or an extension of the Contract Times, or both, directly attributable to
such uncovering, exposure, observation, inspection, testing, replacement and
rework; and, if the parties are unable to agree as to the amount or extent
thereof, DESIGN/BUILDER may make a claim therefor as provided in Article 9.
12.05 OWNER MAY STOP THE CONSTRUCTION
A. If the Construction is DEFECTIVE, or DESIGN/BUILDER fails to supply
sufficient skilled workers or suitable materials or equipment, or fails to
furnish or perform the Construction in such a way that the completed
Construction will conform to the Contract Documents, OWNER may order
DESIGN/BUILDER to stop Construction or any portion thereof, until the cause for
such order has been eliminated; however, this right of OWNER to stop
Construction will not give rise to any duty on the part of OWNER to exercise
this right for the benefit of DESIGN/BUILDER or any other party.
12.06 CORRECTION OR REMOVAL OF DEFECTIVE CONSTRUCTION
A. OWNER will have authority to disapprove or reject DEFECTIVE Construction
and will have authority to require special inspection or testing of the
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Construction whether or not the Construction is fabricated, installed or
completed. If required by OWNER, DESIGN/BUILDER shall promptly, as directed,
either correct all DEFECTIVE Construction, whether or not fabricated, installed
or completed, or, if the Construction has been rejected by OWNER, remove it from
the Site and replace it with nondefective Construction. DESIGN/BUILDER shall
bear all direct, indirect and consequential costs of such correction or removal
(including but not limited to reasonable fees and charges of engineers,
architects, attorneys and other professionals) made necessary thereby.
12.07 CORRECTION PERIOD
A. If within one year after the date of Substantial Completion or such
longer period of time as may be prescribed by Laws or Regulations or by the
terms of any applicable special guarantee required by the Contract Documents or
by any specific provision of the Contract Documents, any Construction is found
to be DEFECTIVE, DESIGN/BUILDER shall promptly, without cost to OWNER and in
accordance with OWNER's written instructions, (i) correct such DEFECTIVE
Construction, or, if it has been rejected by OWNER, remove it from the Site and
replace it with Construction that is not DEFECTIVE, and (ii) satisfactorily
correct or remove and replace any damage to other Construction or the work of
others resulting therefrom. If DESIGN/BUILDER does not promptly comply with the
terms of such instructions, or in an emergency where delay would cause serious
risk of loss or damage, OWNER may have the DEFECTIVE Construction corrected or
the rejected Construction removed and replaced, and all costs and damages caused
by or resulting from such removal and replacement (including but not limited to
all reasonable fees and charges of engineers, architects, attorneys and other
professionals, all court or arbitration or other dispute resolution costs, and
all costs of repair or replacement of work of others) will be paid by
DESIGN/BUILDER.
B. In special circumstances where a particular item of equipment is placed
in continuous service before Substantial Completion of all the Construction, the
correction period for that item may start to run from an earlier date if so
provided in the Specifications or by Written Amendment.
C. Where DEFECTIVE Construction (and damage to other Construction resulting
therefrom) has been corrected, removed or replaced under this paragraph 12.07,
the correction period hereunder with respect to such Construction will be
extended for an additional period of one year after such correction or removal
and replacement has been satisfactorily completed.
12.08 ACCEPTANCE OF DEFECTIVE CONSTRUCTION
A. If, instead of requiring correction or removal and replacement of
DEFECTIVE Construction, OWNER prefers to accept it, OWNER may do so.
DESIGN/BUILDER shall pay all costs attributable to OWNER's evaluation of and
determination to accept such DEFECTIVE Construction (such costs to include but
not be limited to all reasonable fees and charges of engineers, architects,
attorneys and other professionals and all court or arbitration or other dispute
resolution costs). If any such acceptance occurs prior to final payment, a
Change Order will be issued incorporating the necessary revisions in the
Contract Documents with respect to the Construction; and OWNER shall be entitled
to an appropriate decrease in the Contract Price, and, if the parties are unable
to agree as to the amount thereof, OWNER may make a claim therefor as provided
in Article 9. If the acceptance occurs after final payment, an appropriate
amount will be paid by DESIGN/BUILDER to OWNER.
<Page>
12.09 OWNER MAY CORRECT DEFECTIVE CONSTRUCTION
A. If DESIGN/BUILDER fails within a reasonable time after written notice
from OWNER to correct DEFECTIVE Construction or to remove and replace rejected
Construction as required by OWNER in accordance with paragraphs 12.06.A or
12.07.A, or if DESIGN/BUILDER fails to perform the Construction in accordance
with the Contract Documents, or if DESIGN/BUILDER fails to comply with any other
material provision of the Contract Documents, OWNER may, after seven days'
written notice to DESIGN/BUILDER, correct and remedy any such deficiency. In
exercising the rights and remedies under this paragraph OWNER shall proceed
expeditiously. In connection with such corrective and remedial action, OWNER may
exclude DESIGN/BUILDER from all or part of the Site, take possession of all or
part of the Construction, and suspend DESIGN/BUILDER's services related thereto,
and incorporate in the Construction all materials and equipment stored at the
Site or elsewhere for which OWNER has paid DESIGN/BUILDER. DESIGN/BUILDER shall
allow OWNER, OWNER's representatives, agents and employees, OWNER's other
contractors and consultants access to the Site to enable OWNER to exercise the
rights and remedies under this paragraph. All costs and damages incurred or
sustained by OWNER in exercising such rights and remedies will be charged
against DESIGN/BUILDER and a Change Order will be issued incorporating the
necessary revisions in the Contract Documents and OWNER shall be entitled to an
appropriate decrease in the Contract Price, and, if the parties are unable to
agree as to the amount thereof, OWNER may make a claim therefor as provided in
Article 9. Such costs and damages will include but not be limited to all
reasonable fees and charges of engineers, architects, attorneys and other
professionals, all court or arbitration or other dispute resolution costs and
all costs of repair or replacement of work of others destroyed or damaged by
correction, removal or replacement of DESIGN/BUILDER's DEFECTIVE Construction.
DESIGN/BUILDER shall not be allowed an extension of the Contract Times because
of any delay in the performance of the Construction attributable to the exercise
by OWNER of OWNER's rights and remedies hereunder.
ARTICLE 13--PAYMENTS TO DESIGN/BUILDER AND COMPLETION
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13.01 SCHEDULE OF VALUES
A. The Schedule of Values established as provided in paragraph 2.06.A will
serve as the basis for progress payments and will be incorporated into a form of
Application for Payment acceptable to OWNER.
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13.02 APPLICATION FOR PROGRESS PAYMENT
A. At least twenty days before the date established for each progress
payment (but not more often than once a month), DESIGN/BUILDER shall submit to
OWNER for review an Application for Payment filled out and signed by
DESIGN/BUILDER covering the Work completed as of the date of the Application and
accompanied by such supporting documentation as is required by the Contract
Documents. If payment is requested on the basis of materials and equipment not
incorporated in the Work but delivered and suitably stored at the Site or at
another location agreed to in writing, the Application for Payment shall also be
accompanied by a bill of sale, invoice or other documentation warranting that
OWNER has received the materials and equipment free and clear of all Liens and
evidence that the materials and equipment are covered by appropriate property
insurance and other arrangements to protect OWNER's interest therein, all of
which will be satisfactory to OWNER. The amount of retainage with respect to
progress payments will be as stipulated in the Agreement.
13.03 DESIGN/BUILDER'S WARRANTY OF TITLE
A. DESIGN/BUILDER warrants and guarantees that title to all construction
materials and equipment covered by any Application for Payment, whether
incorporated in the Project or not, will pass to OWNER no later than the time of
payment free and clear of all Liens. This paragraph 13.03.A does not apply to
any documents covered by paragraph 3.04.A.
13.04 PROGRESS PAYMENTS
A. Progress payments shall be made by the OWNER to the DESIGN/BUILDER
according to the following procedure:
1. OWNER will, within ten days of receipt of each Application for
Payment, either indicate in writing its acceptance of the Application and
state that the Application is being processed for payment, or return the
Application to DESIGN/BUILDER indicating in writing its reasons for refusing
to accept the Application. Not more than ten days after accepting such
Application the amount will become due and when due will be paid by OWNER to
DESIGN/BUILDER.
2. If the OWNER should fail to pay the DESIGN/BUILDER at the time the
payment of any amount becomes due, then DESIGN/BUILDER may, at any time
thereafter, upon serving written notice that DESIGN/BUILDER will stop the
Work within seven days after receipt of the notice by the OWNER, and after
such seven day period, stop the Work until payment of the amount owing has
been received. Written notice shall be deemed to have been duly served if
sent by certified mail to the last known business address of the OWNER.
3. Payments due but unpaid shall bear interest at the rate specified in
the Agreement.
4. No Progress Payment nor any partial or entire use or occupancy of the
Project by the OWNER shall constitute an acceptance of any Work not in
accordance with the Contract Documents.
B. OWNER may refuse to make the whole or any part of any such payment, or
because of subsequently discovered evidence or the results of subsequent
inspections or tests, nullify any previous payment, to the extent that is
reasonably necessary to protect OWNER from loss because:
1. The Work is DEFECTIVE, or completed Work has been damaged requiring
correction or replacement; or
2. The Contract Price has been reduced by Written Amendment or Change Order;
or
<Page>
3. OWNER has been required to correct DEFECTIVE Work or complete Work in
accordance with paragraph 12.09.A, or
4. OWNER has actual knowledge of the occurrence of any of the events
enumerated in paragraphs 14.02.A.1 through A.3 inclusive; or
5. Claims have been made against OWNER on account of DESIGN/BUILDER's
performance or furnishing of the Work; or
6. Liens have been filed in connection with the Work, except where
DESIGN/BUILDER has delivered a specific Bond satisfactory to OWNER to secure
the satisfaction and discharge of such Liens.
13.05 SUBSTANTIAL COMPLETION
A. When DESIGN/BUILDER considers the Construction ready for its intended use
DESIGN/BUILDER shall notify OWNER in writing that the Construction is
substantially complete (except for items specifically listed by DESIGN/BUILDER
as incomplete) and request that OWNER issue a certificate of Substantial
Completion. Within a reasonable time thereafter, OWNER and DESIGN/BUILDER shall
make an inspection of the Construction to determine the status of completion. If
OWNER does not consider the Construction substantially complete, OWNER will
notify DESIGN/BUILDER in writing giving the reasons therefor. If OWNER considers
the Construction substantially complete, OWNER will prepare and deliver to
DESIGN/BUILDER a certificate of Substantial Completion which shall fix the date
of Substantial Completion. There shall be attached to the certificate a list of
items to be completed or corrected before final payment. At the time of delivery
of the certificate of Substantial Completion OWNER will deliver to
DESIGN/BUILDER a written determination as to division of responsibilities
pending final payment between OWNER and DESIGN/BUILDER with respect to security,
operation, safety, maintenance, heat, utilities, insurance and warranties and
guarantees.
B. OWNER will have the right to exclude DESIGN/BUILDER from the Site after
the date of Substantial Completion, but OWNER will allow DESIGN/BUILDER
reasonable access to complete or correct items on the list of items to be
completed.
13.06 FINAL INSPECTION
A. Upon written notice from DESIGN/BUILDER that the entire Construction or
an agreed portion thereof is complete, OWNER will make a final inspection with
DESIGN/BUILDER and will notify DESIGN/BUILDER in writing of all particulars in
which this inspection reveals that the
<Page>
Construction is incomplete or DEFECTIVE. DESIGN/BUILDER shall immediately take
such measures as are necessary to complete such Construction or remedy such
deficiencies.
13.07 FINAL APPLICATION FOR PAYMENT
A. After DESIGN/BUILDER has completed all such corrections to the
satisfaction of OWNER and delivered in accordance with the Contract Documents
all maintenance and operating instructions, schedules, guarantees, Bonds,
certificates or other evidence of insurance required by paragraph 5.08.B,
certificates of inspection, marked-up record documents (as provided in paragraph
6.11) and other documents, DESIGN/BUILDER may make application for final payment
following the procedure for progress payments. The final Application for Payment
shall be accompanied (unless previously delivered) by: (i) all documentation
called for in the Contract Documents, including but not limited to the evidence
of insurance required by subparagraph 5.02.B.7, (ii) consent of the surety, if
any, to final payment, and (iii) complete and legally effective releases or
waivers (satisfactory to OWNER) of all Liens arising out of or filed in
connection with the Work. In lieu of such releases or waivers of Liens and as
approved by OWNER, DESIGN/BUILDER may furnish receipts or releases in full and
an affidavit of DESIGN/BUILDER that: (i) the releases and receipts include all
labor, services, material and equipment for which a Lien could be filed, and
(ii) all payrolls, material and equipment bills and other indebtedness connected
with the Work for which OWNER or OWNER's property might in any way be
responsible have been paid or otherwise satisfied. If any Subcontractor or
Supplier fails to furnish such a release or receipt in full, DESIGN/BUILDER may
furnish a Bond or other collateral satisfactory to OWNER to indemnify OWNER
against any Lien.
13.08 FINAL PAYMENT AND ACCEPTANCE
A. If OWNER is satisfied that the Work has been completed and
DESIGN/BUILDER's other obligations under the Contract Documents have been
fulfilled, OWNER will, within ten days after receipt of the final Application
for Payment, give written notice to DESIGN/BUILDER that the Work is acceptable.
Otherwise, OWNER will return the Application to DESIGN/BUILDER, indicating in
writing the reasons for refusing to process final payment, in which case
DESIGN/BUILDER shall make the necessary corrections and resubmit the
Application. Thirty days after the presentation to OWNER of the acceptable
Application and accompanying documentation, in appropriate form and substance
and with OWNER's notice of acceptability, the amount will become due and will be
paid by OWNER to DESIGN/BUILDER.
B. If, through no fault of DESIGN/BUILDER, final completion of the Work is
significantly delayed, OWNER shall, upon receipt of DESIGN/BUILDER's final
Application for Payment, and without terminating the Agreement, make payment of
the balance due for that portion of the Work fully completed and accepted. If
the remaining balance to be held by OWNER for Work not fully completed or
corrected is less than the retainage stipulated in the Agreement, and if Bonds
have been furnished as required in paragraph 5.01.A, the written consent of the
surety to the payment of the balance due for that portion of the Work fully
completed and accepted shall be submitted by DESIGN/BUILDER to OWNER with the
Application for such payment. Such payment shall be made under the terms and
conditions governing final payment, except that it shall not constitute a waiver
of claims.
<Page>
13.09 WAIVER OF CLAIMS
A. The making and acceptance of final payment will constitute:
1. A waiver of all claims by OWNER against DESIGN/BUILDER, except claims
arising from unsettled Liens, from DEFECTIVE Construction appearing after
final inspection pursuant to paragraph 13.06, from failure to comply with
the Contract Documents or the terms of any special guarantees specified
therein, or from DESIGN/BUILDER's continuing obligations under the Contract
Documents; and
2. A waiver of all claims by DESIGN/BUILDER against OWNER other than those
previously made in writing and still unsettled.
ARTICLE 14--SUSPENSION OF WORK AND TERMINATION
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14.01 OWNER MAY SUSPEND WORK
A. At any time and without cause, OWNER may suspend the Work or any portion
thereof for a period of not more than 90 days by notice in writing to
DESIGN/BUILDER which will fix the date on which Work will be resumed.
DESIGN/BUILDER shall resume the Work on the date so fixed. DESIGN/BUILDER shall
be allowed an adjustment in the Contract Price or an extension of the Contract
Times, or both, directly attributable to any such suspension if DESIGN/BUILDER
makes a claim therefor as provided in Article 9.
14.02 OWNER MAY TERMINATE FOR CAUSE
A. The occurrence of any one or more of the following events justifies
termination for cause:
1. DESIGN/BUILDER persistently fails to perform the Work in accordance
with the Contract Documents (including, but not limited to, failure to
supply sufficient skilled workers or suitable materials or equipment or
failure to adhere to the progress schedule established under paragraph
2.06.A as revised from time to time.
2. DESIGN/BUILDER disregards Laws or Regulations of any public body
having jurisdiction.
3. DESIGN/BUILDER otherwise violates in any substantial way any material
provisions of the Contract Documents.
B. OWNER may, after giving DESIGN/BUILDER (and the surety, if any) written
notice of the occurrence of an event in paragraph 14.02.A and twenty days
therefrom to remedy such event, and to the extent permitted by Laws and
Regulations, terminate the services of DESIGN/BUILDER, exclude DESIGN/BUILDER
from the Site and take possession of the Work incorporate in the Work all
materials and equipment stored at the Site or elsewhere for which OWNER has paid
DESIGN/BUILDER and finish the Work as OWNER may deem expedient. In such case
DESIGN/BUILDER shall not be entitled to receive any further payment until the
Work is finished. If the unpaid balance of the Contract Price exceeds all costs,
losses and damages sustained by OWNER arising out of or resulting from
completing the Work (including but not limited to all reasonable fees and
charges of engineers, architects, attorneys and other professionals and all
court or arbitration or other dispute resolution costs) such excess will be paid
to DESIGN/BUILDER. If such costs, losses and damages exceed such unpaid balance,
DESIGN/BUILDER shall pay the difference to OWNER. Such costs, losses and damages
incurred by OWNER will be incorporated in a Change Order, provided that when
exercising any rights or remedies under this paragraph OWNER shall be required
to obtain a reasonable price for the Work performed.
<Page>
C. Where DESIGN/BUILDER's services have been so terminated by OWNER, the
termination will not affect any rights or remedies of OWNER against
DESIGN/BUILDER then existing or which may thereafter accrue. Any retention or
payment of moneys due DESIGN/BUILDER by OWNER will not release DESIGN/BUILDER
from liability.
14.03 OWNER MAY TERMINATE FOR CONVENIENCE
A. Upon twenty days' written notice to DESIGN/BUILDER, OWNER may, without
cause and without prejudice to any other right or remedy of OWNER, elect to
terminate the Agreement. In such case, DESIGN/BUILDER shall be paid (without
duplication of any items) for:
1. Completed and acceptable Work executed in accordance with the Contract
Documents prior to the effective date of termination, including fair and
reasonable sums for overhead and profit on such Work;
2. Expenses sustained prior to the effective date of termination in
performing services and furnishing labor, materials or equipment as required
by the Contract Documents in connection with uncompleted Work, plus fair and
reasonable sums for overhead and profit on such expenses;
3. Amounts paid in settlement of terminated contracts with Subcontractors,
Engineers, Suppliers and others (including but not limited to all fees and
charges of engineers, architects, attorneys and other professionals and all
court or arbitration or other dispute resolution costs incurred in
connection with termination of contracts with Subcontractors, Engineers and
Suppliers); and
4. Reasonable expenses directly attributable to termination.
B. DESIGN/BUILDER shall not be paid on account of loss of anticipated
profits or revenue or other economic loss arising out of or resulting from such
termination.
C. In the event OWNER decides not to complete the Project after terminating
the Agreement under paragraph 14.03.A., then OWNER shall promptly return to
DESIGN/BUILDER any and all written documents that include Proprietary Property
(as defined in Exhibit F of the Agreement). In the event the OWNER decides to
complete the Project, OWNER shall pay to DESIGN/BUILDER, in addition to the
amounts set forth in paragraph 14.03.A., the unpaid portion, if any, of the
license fee for the Proprietary Property that is included in the Contract Price.
Unless otherwise agreed in writing by the parties, the license fee included in
the Contract Price is $2,000,000.00.
14.04 DESIGN/BUILDER MAY STOP WORK OR TERMINATE
A. If, through no act or fault of DESIGN/BUILDER, the Work is suspended for
a period of more than ninety days by OWNER or under an order of court or other
public authority, or OWNER fails to act on any Application for Payment within
thirty days after it is submitted or OWNER fails for thirty days to pay
DESIGN/BUILDER any sum finally determined to be due, then DESIGN/BUILDER may,
upon seven days' written notice to OWNER, and provided OWNER does not remedy
such suspension or failure within that time, terminate the Agreement and recover
from OWNER payment on the same terms as provided in paragraph 14.03.A. In lieu
of terminating the Agreement and without prejudice to any other right or remedy,
or OWNER has failed for thirty days to pay DESIGN/BUILDER any sum finally
determined to be due, DESIGN/BUILDER may upon seven day's
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written notice to OWNER stop the Work until payment is made of all such amounts
due DESIGN/BUILDER, including interest thereon. The provisions of this paragraph
14.04.A are not intended to preclude DESIGN/BUILDER from making claim under
Article 9 for an increase in Contract Price or Contract Times or otherwise for
expenses or damage directly attributable to DESIGN/BUILDER's stopping Work as
permitted by this paragraph.
ARTICLE 15--DISPUTE RESOLUTION
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15.01 DISPUTE RESOLUTION AGREEMENT
A. OWNER and DESIGN/BUILDER agree that they will first submit any and all
unsettled claims, counterclaims, disputes and other matters in question between
them arising out of or relating to the Contract Documents or the breach thereof
("disputes"), to mediation 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 Industry Mediation Rules, prior
to either of them initiating against the other a demand for arbitration pursuant
to paragraph 15.01.B through 15.01.E, unless delay in initiating arbitration
would irrevocably prejudice one of the parties. Any time limits within which to
file a demand for arbitration shall be suspended with respect to a dispute
submitted to mediation within those same applicable time limits and shall remain
suspended until 10 days after the termination of the mediation. The mediator of
any dispute submitted to mediation under this Agreement shall not serve as
arbitrator of such dispute unless otherwise agreed.
B. All claims, disputes and other matters in question between OWNER and
DESIGN/BUILDER arising out of or relating to the Contract Documents or the
breach thereof (except for claims which have been waived by the making or
acceptance of final payment as provided by paragraph 13.10) will be decided by
binding arbitration in accordance with the Construction Industry Arbitration
Rules of the AAA then in effect, subject to the limitations of this paragraph
15.01. This agreement so to arbitrate and any other agreement or consent to
arbitrate entered into in accordance herewith as provided in this paragraph
15.01 will be specifically enforceable under the prevailing law of any court
having jurisdiction.
C. Notice of the demand for arbitration will be filed in writing with the
other party to the Agreement and with the designated arbitration entity. The
demand for arbitration will be made within a reasonable time after the claim,
dispute or other matter in question has arisen, and in no event shall any such
demand be made after the date when institution of legal or equitable proceedings
based on such claim, dispute or other matter in question would be barred by the
applicable statute of limitations.
D. Except as provided in paragraph 15.01.E below, no arbitration arising out
of or relating to the Contract Documents shall include by consolidation, joinder
or in any other manner any other individual or` entity who is not a party to
this contract unless:
1. the inclusion of such other individual or entity is necessary if complete
relief is to be afforded among those who are already parties to the
arbitration, and
2. such other individual or entity is substantially involved in a question
of law or fact which is common to those who are already parties to the
arbitration and which will arise in such proceedings, and
3. the written consent of the other individual or entity sought to be
included and of OWNER and DESIGN/BUILDER has been obtained for such
inclusion, which consent shall make specific reference to this paragraph;
but no such consent shall constitute consent to arbitration of any dispute
not specifically described in such consent
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or to arbitration with any party not specifically identified in such
consent.
F. Notwithstanding paragraph 15.01.D, if a claim, dispute or other matter in
question between OWNER and DESIGN/BUILDER involves the Work of a Subcontractor,
Supplier or Engineer either OWNER or DESIGN/BUILDER may join such entity as a
party to the arbitration between OWNER and DESIGN/BUILDER hereunder.
DESIGN/BUILDER shall include in all subcontracts required by paragraph 6.05.D a
specific provision whereby the Subcontractor consents to being joined in an
arbitration between OWNER and DESIGN/BUILDER involving the Work of such
Subcontractor. Nothing in this paragraph 15.01.E nor in the provision of such
subcontract consenting to joinder shall create any claim, right or cause of
action in favor of Subcontractor, Supplier or Engineer against OWNER.
ARTICLE 16--MISCELLANEOUS
- --------------------------------------------------------------------------------
16.01 GIVING NOTICE
A. Whenever any provision of the Contract Documents requires the giving of
written notice, it will be deemed to have been validly given.
1. If delivered in person to the individual or to a member of the firm
or to an officer of the corporation for whom it is intended;
2. If delivered at or sent by registered or certified mail, postage
prepaid, to the last business address known to the giver of the notice; or
3. If transmitted by facsimile, the time at which a machine generated
confirmation states the notice was received at the facsimile telephone
number of the intended recipient last known by the sender.
16.02 COMPUTATION OF TIMES
A. When any period of time is referred to in the Contract Documents by days,
it will be computed to exclude the first and include the last day of such
period. If the last day of any such period falls on a Saturday or Sunday or on a
day made a legal holiday by the law of the applicable jurisdiction, such day
will be omitted from the computation.
B. A calendar day of twenty-four hours measured from midnight to the next
midnight will constitute a day.
16.03 NOTICE OF CLAIM
A. Should OWNER or DESIGN/BUILDER suffer injury or damage to person or
property because of any error, omission or act of the other party or of any of
the other party's employees or agents or others for whose acts the other party
is legally liable, claim will be made in writing to the other party within a
reasonable time of the first observance of such injury or damage. The provisions
of this paragraph 16.03.A shall not be construed as a substitute for or a waiver
of the provisions of any applicable statute of limitations or repose.
<Page>
16.04 CUMULATIVE REMEDIES
A. The duties and obligations imposed by these General Conditions and the
rights and remedies available hereunder to the parties hereto, and, in
particular but without limitation, any general or specific warranties,
guarantees and indemnities imposed upon DESIGN/BUILDER and all of the rights and
remedies available to OWNER thereunder, are in addition to, and are not to be
construed in any way as a limitation of, any rights and remedies available to
any or all of them which are otherwise imposed or available by Laws or
Regulations, by special warranty or guarantee or by other provisions of the
Contract Documents, and the provisions of this paragraph will be as effective as
if repeated specifically in the Contract Documents in connection with each
particular duty, obligation, right and remedy to which they apply.
16.05 SURVIVAL OF OBLIGATIONS
A. All representations, indemnifications, warranties and guarantees made in,
required by or given in accordance with the Contract Documents, as well as all
continuing obligations indicated in the Contract Documents, will survive final
payment, completion and acceptance of the Work and termination or completion of
the Agreement.
16.06 CONSEQUENTIAL DAMAGES
A. Notwithstanding anything herein to the contrary, 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.
<Page>
EXHIBIT A
PERFORMANCE GUARANTEE CRITERIA
Table 1 Western Plains Energy ethanol plant criteria
<Table>
<Caption>
- -----------------------------------------------------------------------------------------------------------------------------------
CRITERIA SPECIFICATION TESTING STATEMENT DOCUMENTATION
- -----------------------------------------------------------------------------------------------------------------------------------
Plant Capacity - fuel Operate of a rate of 30 Seven day performance test Production records and a written
grade ethanol million gallons per year of report from DESIGN/BUILDER.
denatured fuel grade ethanol
meeting the specifications of
ASTM 4806
- -----------------------------------------------------------------------------------------------------------------------------------
Dried Distillers Operate at rate of 96,000 tons Determined by calculation Production records and a
Grains with Solubles per year of 10% moisture DDGS of mass flow from centrifuge written analysis from
(DDGS) and dryers in a seven day DESIGN/BUILDER.
performance test
- -----------------------------------------------------------------------------------------------------------------------------------
Carbon Dioxide 89,000 tons per year of CO2 Determined as a function of Mass flow calculation.
gas. fermented gallons in a
seven-day performance test.
- -----------------------------------------------------------------------------------------------------------------------------------
Grain to Ethanol Not be less than 2.80 As determined by meter Production records and written
Conversion ratio; denatured gallons of ethanol readings during a seven day analysis by DESIGN/BUILDER.
CORN/SORGHUM 56#/BU., 16% per bushel of ground performance test.
OR LESS MOISTURE, ZERO Corn/Sorghum
AFLATOXIN TOLERANCE
- -----------------------------------------------------------------------------------------------------------------------------------
Electrical Energy 0.75 kW per denatured gallon As determined by meter Production records and written
of fuel grade ethanol. Does readings during a seven day analysis by DESIGN/BUILDER.
not include CO2 plant, CO2 performance test.
gas system or grain handling
system.
- -----------------------------------------------------------------------------------------------------------------------------------
Natural Gas Shall not exceed 37,000 Btu As determined by meter Production records and written
denatured gallon of fuel readings during a seven day analysis by DESIGN/BUILDER.
grade ethanol. performance test.
- -----------------------------------------------------------------------------------------------------------------------------------
Process Water Discharge Zero gallons under normal Process discharge meter Control System reports
operations
- -----------------------------------------------------------------------------------------------------------------------------------
</Table>
<Page>
Table 1 (Continued)
<Table>
<Caption>
- -----------------------------------------------------------------------------------------------------------------------------------
CRITERIA SPECIFICATION TESTING STATEMENT DOCUMENTATION
- -----------------------------------------------------------------------------------------------------------------------------------
Atmospheric Emissions As prescribed and As prescribed and approved As prescribed and approved by
including Thermal Oxidizer approved by the Kansas by the Kansas Department of the Kansas Department of Health
Department of Health & Health & Environment & Environment
Environment
- -----------------------------------------------------------------------------------------------------------------------------------
</Table>
<Page>
DESIGN BUILD CONTRACT
WESTERN PLAINS ENERGY, LLC
EXHIBIT B
GENERAL PROJECT SCOPE
Construct a 30 million gallon per year (MGY) dry mill fuel ethanol plant near
Campus, KS. The plant will grind approximately 10.7 million bushels per year to
produce approximately 30 MGY year of fuel grade ethanol denatured with five
percent gasoline. The plant will also produce approximately 96,000 tons per year
of 10% moisture dried distillers grains with solubles (DDGS) and approximately
89,000 tons per year of raw carbon dioxide (CO2) gas.
Arriving grain will be dumped into a double hopper operated dump pit in a
receiving building. Maximum truck dump time is five minutes. Truck drivers will
start the grain system, dump the grain and obtain a weigh ticket from the scale
operator. A 15,000-bushel per hour leg will lift the corn to a scalper to remove
rocks and debris before conveying the product to one of two 100,000-bushel
storage bins. A dust collection system with bag house 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 17,000-gallon slurry tank, routed through a
4,000-gallon pressure vessel and steam flashed of in a flash vessel. Cooked mash
will continue through two 35,000-gallon liquefaction tanks and into one of three
500,000-gallon 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 500,000 gallon beer well and then to the beer column to
vaporize the alcohol from the mash.
Alcohol streams are dehydrated in the distillation column, the side stripper and
the molecular sieve system. Two hundred proof alcohol is pumped to the tank farm
shift tanks and blended with five percent alcohol as the product is being pumped
into a 500,000 gallon final storage tank. Loading facilities for truck and rail
cars will be provided. Tank farm tanks include: one 40,000 gallon for 190 proof
storage, two 40,000 gallon for 200 proof storage, one 40,000 gallon for
denaturant storage. All tanks are covered carbon steel tanks with one floating
roof as required by the air quality permit.
Corn mash from the beer stripper is dewatered in one of three decanter type
centrifuges. Wet cake from the centrifuge is conveyed to the DDGS dryer system.
Water in the thin stillage is evaporated and recycled by the Bio-Methanation
system. Syrup is added to the wet cake entering the dryer. DDGS is pneumatically
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.
Fresh water for the boilers, cooking and other processes will be obtained from
area process wells that will supply the needs of the plant. 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.
DESIGN/BUILDER has also developed and patented a process to thermal oxidize the
exhaust gases from both Dryer A and Dryer B. This process will remove over 75%
of the VOCs and particulate that is in the dryer exhaust. The energy required to
complete thermo oxidation will then be ducted to a waste heat boiler that will
produce 100% of the steam requirements of the ethanol plant. The exhaust gases
from the waste heat boiler will be ducted through two stack gas economizers to
recover the maximum amount of energy possible from the exhaust gas stream. After
the economizers, the gas stream will be vented to the atmosphere. The Thermo
Oxidizer waste heat boiler combination is designed to operate in conjunction
with the drying system or independent of the drying system. This will allow for
plant startups and shutdowns without affecting either dryer operation or steam
production capabilities. Both dryers can bypass the Thermo Oxidizer unit and
vent directly to atmosphere on an emergency basis.
<Page>
The design includes a compressed air system consisting of two 75 Hp compressors,
a receiver tank, pre-filter, coalescing filter and air dryer.
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 one
12,000-gallon tank. The CIP system uses four 12,000 gallon tanks for receiving,
make-up, CIP return and waste CIP which is fed to the methanator. A screener is
used to remove the solids.
Under normal operating circumstances, the plant will not have any wastewater
discharges of water that has been in contact with corn, corn mash, cleaning
system or contact process water. An DESIGN/BUILDER/Phoenix Bio-Methanator will
reduce the organic acids in process water allowing complete reuse within the
plant. The plant will have blowdown discharges from the cooling tower and
boiler.
Most plant processes are computer controlled by a Siemens/Moore APACS
distributed control system with graphical user interface and three workstations.
It is estimated that the system will consist of 200 discrete inputs, 200
discreet outputs, 175 analog inputs and 120 analog outputs. Additional
programmable logic controllers (PLCs) will control certain process equipment.
The plant design may require additional programs to ensure safety and to satisfy
regulatory authorities.
<Page>
EXHIBIT C
TABLE 2
<Table>
<Caption>
- ---------------------------------------------------------------------------------------------------------------------------------
BUILDING TYPE PRELIMINARY DIMENSIONS ADDITION INFO
- ---------------------------------------------------------------------------------------------------------------------------------
Process Structural steel or pre engineered 60 x 140 x 35 Includes laboratory, control room
metal, steel siding - Insulated & offices, MCC Room
- ---------------------------------------------------------------------------------------------------------------------------------
Dryer Structural steel or pre engineered 90 x 100 x 30 Includes centrifuge area
metal, steel siding - Insulated
- ---------------------------------------------------------------------------------------------------------------------------------
DDG Storage Structural steel or pre engineered 125 x 125 x 25
metal, steel siding
- ---------------------------------------------------------------------------------------------------------------------------------
Evaporation Structural steel or pre engineered 50 x 45 x 35
metal, steel siding - Insulated
- ---------------------------------------------------------------------------------------------------------------------------------
Grain Receiving Pre engineered metal - roof 25 x 75 x 25 Receiving control room, 1st & 2nd
& Shipping insulation only level mezzanine - MCC Room
- ---------------------------------------------------------------------------------------------------------------------------------
Admin. Pre engineered metal or as provided 35 x 75 x 10 Up to $225,000 allowance for
by local contractor building, finishing & landscaping
- ---------------------------------------------------------------------------------------------------------------------------------
</Table>
<Page>
EXHIBIT D
ALLOWANCES
The GMP contract includes allowances for listed items in the estimated amounts.
The aggregate allowance for the Administration Building is $225,000. A
Maintenance and Power Equipment allowance of $300,000 and a Rail allowance
$500,000.
DESIGN/BUILDER will provide assistance and recommendations for the purchase of
each item, however the OWNER or their representative has the ultimate authority
and responsibility for each purchase.
<Page>
TABLE 3 ADMINISTRATION BUILDING - $225,000 ALLOWANCE
<Table>
<Caption>
- ---------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION ADDITIONAL DESCRIPTION EST. AMOUNT
- ---------------------------------------------------------------------------------------------------------------------------------
Administration Building EXCAVATION - from rough grade; foundations and utility service connections $155,000
- - one story free standing SITE - Finish grading and landscaping to 20 feet around perimeter.
CONCRETE - Footings, floors and sidewalks.
STRUCTURAL - Steel or wood framed structure and interior walls
WINDOWS - Double pane, gas filled sliding and fixed
DOORS - Vestibule entry with aluminum store type entry doors, others- metal
with view lights. Interior - solid wood with view lights. Commercial
grade hardware
INSULATION - To State energy specifications or better
FINISHES - Exterior, steel panels & trims. Interior - stud walls,
sheetrock and paint.
FLOORING - linoleum entry, restrooms & halls and medium grade commercial
carpet.
CABINETS - Prefabricated; restrooms sink & vanity, refreshment center with
sink.
MECHANICAL- Natural gas fired HVAC system, gas fired 50 gallon hot water
heater, water cooler; medium grade fixtures. .
ELECTRICAL - 200 Amp service, fluorescent lighting, rough in wiring,
junction boxes and terminations for data (CAT 5e) and telephone lines
- ---------------------------------------------------------------------------------------------------------------------------------
Office Computer System Microsoft Windows 2000 network server and five personal computers, one $25,000
laser printer. Includes setup and labor.
- ---------------------------------------------------------------------------------------------------------------------------------
Telephone System Digital phone system with voice mail for office and plant. $20,000
- ---------------------------------------------------------------------------------------------------------------------------------
Office Copier & fax Black & white with sheet feeder and collator. Plain paper fax machine $10,000
machine
- ---------------------------------------------------------------------------------------------------------------------------------
Office Furniture Office desks, chair & side chairs, conference room table & chairs, three $15,000
four-drawer filing cabinets, 10 two-drawer filing cabinets.
- ---------------------------------------------------------------------------------------------------------------------------------
</Table>
<Page>
TABLE 4 MAINTENANCE AND POWER EQUIPMENT-$300,000 ALLOWANCE
<Table>
<Caption>
- ---------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION ADDITIONAL DESCRIPTION EST. AMOUNT
- ---------------------------------------------------------------------------------------------------------------------------------
Spare Parts Spare parts $200,000
Parts bins
Misc. materials, supplies and equipment
- ---------------------------------------------------------------------------------------------------------------------------------
Shop supplies and One shop welder $40,000
equipment 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.
Safety showers as required
- ---------------------------------------------------------------------------------------------------------------------------------
Rolling stock New Skid loader $60,000
Used Fork lift
Used Scissors lift, 30 foot
- ---------------------------------------------------------------------------------------------------------------------------------
</Table>
TABLE 5 RAILROADS - $500,000 ALLOWANCE
<Table>
<Caption>
- ---------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION ADDITIONAL DESCRIPTION EST. AMOUNT
- ---------------------------------------------------------------------------------------------------------------------------------
Rail Spur 2,500 feet of on-site rail spur: $300,000
Sub ballast
Ballast
Track
Ties
- ---------------------------------------------------------------------------------------------------------------------------------
Track Switches Four #9 switches $120,000
- ---------------------------------------------------------------------------------------------------------------------------------
Car mover Reconditioned car mover $70,000
- ---------------------------------------------------------------------------------------------------------------------------------
Misc. Items Miscellaneous rail spur items $10,000
- ---------------------------------------------------------------------------------------------------------------------------------
</Table>
<Page>
EXHIBIT E
OWNER'S REQUIRED PERMITS AND SERVICES LIST
The OWNER shall provide all of the permits, authorizations and services except
building permits, but including but not limited to:
1) LAND AND GRADING - LAND AND GRADING - OWNER shall provide a site near
or in Campus, Kansas. OWNER shall obtain all legal authority to use
the site for its intended purpose and perform technical due diligence
for Design-Builder to perform including but not limited to proper
zoning approvals, elevation restrictions, soil tests, and water tests.
The site shall be rough graded per DESIGN/BUILDER, Inc. specifications
and be within six 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 of 3,000 pounds per
square foot for all foundation elements. The soils beneath the
foundation elements shall not exceed the total or differential
settlements such that the facility is unable to perform its intended
purpose.
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 engineers, 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, site engineering and
detailed drawings, 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 loop with hydrants and plant water
main branches taken from the loop to be within five feet of the
designated building locations, plant roads as specified and designed
for the permanent elevations and effective depth, paving if desired,
"construction" grading plan as drawn (including site retention pond),
plant water well and associated permit(s).
Design/Builder will remove excess grade and leave site as designed for
the final grading plan. This includes removing and replacing the top
six inches of road gravel on the road the owner has provided.
Design/Builder shall be reimbursed on a "Time & Material" basis for
any management of these OWNER requirements.
2) ROADS - OWNER shall provide or have provided, access road of
sufficient quality to withstand semi-truck traffic of 25,000+ annual
loads with weight of 80,000 lbs each.
3) AIR QUALITY PERMIT - A permit for construction shall be obtained from
the proper authorities for a Notice to Proceed to be valid. OWNER
shall obtain an Operating Permit in timely manner to allow startup of
the plant as scheduled by DESIGN/BUILDER.
4) STORM WATER RUNOFF PERMIT - OWNER shall obtain the permanent
industrial storm water runoff permit. The contractor shall obtain the
construction storm water runoff permit.
5) NATURAL GAS SUPPLY AND SERVICE AGREEMENT - Continuous supply of
natural gas of at least 1.1 billion cubic feet per year, at a rate of
130 MCF per hour and at a minimum pressure of 200 psig at the plant
site. OWNER or vendor shall provide supply meter and regulators to
provide burner tip pressures as specified by DESIGN/BUILDER, Inc.
<Page>
6) ELECTRICAL SERVICE - Continuous supply of 12,000 kVA, 12,400-volt
electrical energy or more to a point immediately adjacent to the site.
OWNER shall supply a high voltage switch and if required, a
substation. OWNER or vendor shall supply meter as specified by the
power company. Additional electrical capacity will be required for a
significant plant expansion or CO2 recovery.
7) WATER SUPPLY AND SERVICE AGREEMENT - For process and sanitary
purposes, fresh water of at least 275 gallons per minute (GPM) from
area wells with minimum quality standards of a) total conductivity of
600 umho or less, 340 mg/L or less total of hardness and 0.5 mg/L or
less of iron.
8) WASTEWATER DISCHARGE PERMIT - For discharges of cooling tower and
boiler blowdown under normal operating procedures. Process wastewater
discharges during emergency failure of wastewater treatment plant to
treat all process wastewater.
9) RAILROAD - OWNER shall provide track, ties and ballast to plant site
at grades specified by DESIGN/BUILDER, Inc.
10) CARBON DIOXIDE PLANT - OWNER shall provide sufficient time for
DESIGN/BUILDER to integrate any potential CO2 plant engineering with
detailed engineering on the ethanol plant. Additional engineering
charges may apply.
<Page>
Design Build Contract
Western Plains Energy, LLC
EXHIBIT F
LICENSE OF PROPRIETARY PROPERTY OF DESIGN/BUILDER
The OWNER has entered into the Agreement to which this document is attached (the
"Agreement") for the purpose of DESIGN/BUILDER designing and constructing a dry
grind ethanol production plant (the "PLANT") for OWNER, and OWNER expressly
understands, acknowledges and agrees that:
DESIGN/BUILDER is using certain technology and
information in the design and construction of the PLANT which
is more fully described in paragraphs 3 and 4 below (the
"PROPRIETARY PROPERTY").
Upon OWNER's payment in full for all Work performed
under the Agreement, OWNER is granted a perpetual limited
license to use the PROPRIETARY PROPERTY in connection with
OWNER's operations of the PLANT, subject to the limitations
provided herein.
The PROPRIETARY PROPERTY includes, without
limitation, OPERATING PROCEDURES (hereinafter defined),
operating methods, techniques, protocols, procedures, plans
and processes, and other information relating to design,
construction and operation of the PLANT including 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, values and associated
electronic control equipment) and all documents supporting
those combinations; (ii) the combination of the distillers
grain drying (DGD), thermal oxidization (TO) 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 PLANT computer
system, known as the distributed control system (DCS)
(including, but not limited to, 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" includes, without
limitation, the process equipment and specifications manuals,
standards of quality, service, protocols, data collection
methods, construction specifications, training methods,
engineering standards, advertising or promotional materials,
and any other information prescribed by DESIGN/BUILDER from
time to time concerning the PROPRIETARY PROPERTY. OWNER shall
comply with all OPERATING PROCEDURES supplied by
DESIGN/BUILDER and shall not deviate from them without the
prior written consent of DESIGN/BUILDER. Failure to materially
comply with the OPERATING PROCEDURES shall be grounds for
termination of the limited license granted to OWNER.
DESIGN/BUILDER has the exclusive right and interest
in and to the PROPRIETARY PROPERTY and the goodwill associated
therewith. Notwithstanding the foregoing, goodwill created by
the operation of the PLANT and all financial benefits
therefrom shall be the property of OWNER.
<Page>
OWNER considers the PROPRIETARY PROPERTY to be valid
and will not directly or indirectly, contest the validity or
the ownership by DESIGN/BUILDER thereof.
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.
OWNER shall not pay any separate license fee or
royalty to DESIGN/BUILDER for OWNER's continual use of the
PROPRIETARY PROPERTY pursuant to the limited license granted
to OWNER, the consideration for this license is included in
the price payable to DESIGN/BUILDER under the Agreement.
OWNER's failure to materially comply with the
OPERATING PROCEDURES shall void all performance guarantees and
warranties set forth in the AGREEMENT relating to the
PROPRIETARY PROPERTY, if any. OWNER agrees to defend,
indemnify and hold harmless DESIGN/BUILDER against all losses,
damages and expenses, including reasonable attorney's fees,
incurred as a result of or related to claims of third persons
arising out of or related in any way to OWNER's use of the
PROPRIETARY PROPERTY.
The limited license granted to OWNER shall not be
assigned or sublicensed, in whole or in part, without the
prior written consent of DESIGN/BUILDER, which consent will
not be unreasonably withheld. Failure to obtain such consent
prior to OWNER's assignment or sublicense shall be grounds for
termination of the limited license granted to OWNER.
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. OWNER
shall not at any time without DESIGN/BUILDER'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. OWNER agrees
that DESIGN/BUILDER would be irreparably damaged by reason of
any violation of the confidentiality provisions contained
herein and that any remedy at law for a breach of such
provisions would be inadequate. Therefore, DESIGN/BUILDER
shall be entitled to seek injunctive or other equitable relief
in a court of competent jurisdiction against OWNER, its
agents, employees, affiliates, partners, members,
stockholders, officers or other associates, for any breach or
threatened breach of the confidentiality covenants contained
herein without the necessity of proving actual monetary loss.
It is expressly understood that the remedy described herein
shall not be the exclusive remedy of DESIGN/BUILDER for any
breach of such covenants, and DESIGN/BUILDER 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 covenants.
The foregoing provisions are part of, and incorporated into, the Agreement and
should be interpreted consistently therewith. In the event any of the foregoing
provisions is contrary to any provision in the Agreement (or any other document
referenced therein), the foregoing provision shall supercede and have precedence
over such contrary provision.