EXHIBIT 10.27
Standard Form of Agreements Between Owner and Design/Builder,
effective as of January 15, 2002, between registrant
and SPEC Process Engineering & Construction, as
Design/Builder
AIA Document A191 - Electronic Format
Standard Form of Agreements Between
Owner and Design/Builder
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS USE, COMPLETION OR MODIFICATION. AUTHENTICATION
OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT
D401.
1996 EDITION
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TABLE OF ARTICLES
PART 1 AGREEMENT
1. Design/Builder 6. Dispute Resolution - Mediation and Arbitration
2. Owner 7. Miscellaneous Provisions
3. Ownership and Use of Documents and Electronic Data 8. Termination of the Agreement
4. Time 9. Basis of Compensation
5. Payments 10. Other Conditions and Services
PART 2 AGREEMENT
1. General Provisions 8. Changes in the Work
2. Owner 9. Correction of Work
3. Design/Builder 10. Dispute Resolution - Mediation and Arbitration
4. Time 11. Miscellaneous Provisions
5. Payments 12. Termination of the Agreement
6. Protection of Persons and Property 13. Basis of Compensation
7. Insurance and Bonds 14. Other Conditions and Services
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AIA Document A191 - Electronic Format
Standard Form of Agreements Between
Owner and Design/Builder
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS USE, COMPLETION OR MODIFICATION. AUTHENTICATION
OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT
D401.
This document comprises two separate Agreements: Part 1 Agreement and Part 2
Agreement. Before executing the Part 1 Agreement, the parties should reach
substantial agreement on the Part 2 Agreement. To the extent referenced in these
Agreements, subordinate parallel agreements to A191consist of AIA Document A491,
Standard Form of Agreements Between Design/Builder and Contractor, and AIA
Document B901, Standard Form of Agreements Between Design/Builder and Architect.
Copyright 1985, (C)1996 The American Institute of Architects, 1735 New York
Avenue, NW, Washington, DC 20006-5292. Reproduction of the material herein or
substantial quotation of its provisions without the written permission of the
AIA violates the copyright laws of the United States and will subject the
violator to legal prosecution.
PART 1 AGREEMENT
1996 EDITION
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AGREEMENT
made as of the fifteenth day of January in the year of 2002.
BETWEEN the Owner:
Mykrolis Corporation
129 Concord Road, Building #2
Billerica Ma. 01821
and the Design/Builder
SPEC Process Engineering & Construction
17 A Street
Burlington, MA 01803
For the following Project:
(Include Project name, location and a summary description.)
Project Name: Mykrolis Corporate Headquarters Manufacturing and Lab Fitout
Project Location: 129 Concord Road Building #2 Billerica, Ma. 01821
Project Summary: The complete design and construction of manufacturing and lab
space within the existing building. Modifications will be made to the building's
architectural, mechanical, plumbing, electrical and computer systems in order to
accommodate the relocation of liquid filter manufacturing and laboratory
facilities into the building.
The architectural services described in Article 1 will be provided by the
following person or entity that is lawfully licensed to practice architecture in
Massachusetts:
Ann Myers
17 A Street
Burlington, MA 01803
Reg# MA 10071 Employee of Design/Builder
Normal structural, mechanical and electrical engineering services will be
provided by the following persons or entities that are lawfully licensed to
practice engineering in Massachusetts:
(Name, address and discipline) (Registration Number) (Relationship to Design/Builder)
Timothy Curran MA #34711 Mechanical Employee
As Above
Ron Buia and Associates MA #29334 Electrical Subcontractor
1 Locksley Road
Lawrence, MA 01843
The Owner and the Design/Builder agree as set forth below.
TERMS AND CONDITIONS - PART 1 AGREEMENT
ARTICLE 1
DESIGN/BUILDER
1.1 SERVICES
1.1.1 Preliminary design, budget, and schedule comprise the services required to
accomplish the preparation and submission of the Guaranteed Maximum Price
Proposal ("GMP Proposal") as well as the preparation and submission of any
modifications to the GMP Proposal prior to the execution of the Part 2
Agreement.
1.1.2 The Owner, with the assistance of the Design /Builder, shall develop a
Project Program that establishes the scope of Work for the Project. The Project
Program will be based on information furnished by the Owner as described in
Paragraph 2.1 of this Part 1 Agreement. The Owner will approve, and the
Design/Builder will accept, the completed Project Program. The Design/Builder
will base its GMP Proposal on the requirements contained in the Project Program.
Any Project change requested by the Owner which is inconsistent with, or is in
addition to, the requirements described in the approved and accepted Project
Program, and which results in any additional design, consulting, or
administrative expenses shall be approved by the Owner in advance, in writing.
The Design/Builder shall be entitled to additional compensation as mutually
agreed between the parties to complete these services as described in Paragraph
9.2.
1.2 RESPONSIBILITIES
1.2.1 Design services required by this Part 1 Agreement shall be performed by
qualified architects and other design professionals duly licensed by all
appropriate and necessary licensing authorities of the Commonwealth of
Massachusetts. Such architects and other design professionals shall be retained
by the Design/Builder however the contractual obligations of such professional
persons or entities are undertaken and performed in the best interest of the
Owner.
1.2.2 The agreements between the Design/Builder and any subcontracted design
professionals shall be in writing. These agreements, including financial
arrangements with respect to this Project, shall be promptly and fully disclosed
to the Owner upon request. Design/Builder shall not enter any agreement with any
such subcontracted design professsionals, or other subcontractor(s) of any
type, that are not duly licensed by all necessary and appropriate licensing
authorities of the Commonwealth of Mass. Moreover, Owner shall be informed of
the identity and qualifications of any subcontractor(s) proposed by
Design/Builder to render any service under the Agreement between the parties and
shall have the option of rejecting same.
1.2.3 Construction budgets shall be prepared by qualified professionals, cost
estimators or contractors retained by Design/Builder and acting in the best
interest of the Owner.
1.2.4 The Design/Builder shall be responsible to the Owner for any and all acts
and omissions of the Design/Builder's employees, agents, representatives, or
subcontractors and their agents and employees, and other persons, including the
Architect and other design professionals, performing any portion of the
Design/Builder's obligations under this Part 1 Agreement and Design/Builder
shall defend, hold harmless and fully indemnify Owner from and against any and
all claims, demands, damages, losses, liabilities, costs or expenses of whatever
nature (including settlement costs and attorneys fees) arising out of or related
to any and all claims by or on behalf of them, or arising out of or related to
any of their, or its, acts or omissions.
1.2.5 If the Design/Builder believes or is advised by the Architect or by
another design professional including an Architect, retained by the
Design/Builder to provide services on the Project that implementation of any
instruction received from the Owner would cause a violation of any applicable
law, the Design/Builder shall notify the Owner in writing and the parties shall
make good faith efforts, and work together, to identify commercially reasonable
alternatives to such instruction. Neither the Design/Builder nor the Architect
shall be obligated to perform any act that either believes will violate any
applicable law. Nothing contained in this Part 1 Agreement, or in any other
document, shall create a contractual relationship between the Owner and
any person or entity other than the Design/Builder.
1.2.6 Design/Builder warrants that all services which it provides to Owner under
this Part 1 Agreement shall be performed in a professional and workmanlike
manner, and in accordance with those standards generally recognized in the
profession and industry relevant to the applicable service, and further that all
such services shall not infringe upon the intellectual property rights of any
third party. Design/Builder shall correct and remedy immediately, at its sole
cost and expense, any work or service which is faulty, defective, or in any way
does not meet such generally recognized professional standards or that infringes
another's rights.
1.3 BASIC SERVICES
1.3.1 The Design/Builder shall work with the Owner to develop a complete
description of the services to be rendered by the Design/Builder, and the
Design/Builder shall then develop a Project Program which shall consist of an
Owner approved building layout, schematics of major mechanical and electrical
systems, room program sheets, and other documentation which describes the
overall intent of the Project.
1. The Design/Builder shall review and comment on written materials
submitted by the Owner describing the Owner's Project requirements.
2. The Design/Builder shall, within ten (10) working days of the
execution of this Agreement, arrange and attend a meeting with the
Owner to discuss any Project requirements that the Owner chooses to
communicate to the Design/Builder verbally. The Design/Builder shall
prepare written minutes of this meeting for the Owner's review and
comment. The Design/Builder shall revise the meeting minutes as
directed by the Owner.
3. The Design/Builder and the Owner shall meet to discuss the scope of
Work for the Project based on the budget and the information
concerning Project requirements furnished by the Owner. The
Design/Builder shall prepare the written Project Program for the
Owner's review and comment. The Design/Builder shall revise the
Project Program as directed by the Owner.
4. The Design/Builder shall accept, in writing, the completed Project
Program approved by the Owner prior to completing preliminary designs
which shall be included as part of Design/Builder's GMP Proposal. The
Design/Builder agrees to perform all services for Owner within the
budget and schedule agreed to. If at any time following commencement
of services by the Design/Builder, it believes that a change requested
by the Owner will cause either the agreed budget or the agreed
schedule to change, it shall immediately notify the Owner's designated
representative in writing, including therein a description of the
specific impact on schedule or budget if any and shall not undertake
implementation of any such change without the written approval of the
Owner.
1.3.2 The Design/Builder shall visit the site, become familiar with the local
conditions, and correlate observable conditions with the requirements of the
Project Program, schedule, and budget.
1.3.3 The Design/Builder shall review laws applicable to design and construction
of the Project, correlate such laws with the Project Program requirements, and
advise the Owner if any program requirement may cause a violation of such laws.
Necessary changes to the Project Program shall be accomplished by appropriate
written modification or disclosed as described in Paragraph 1.3.5.
1.3.4 The Design/Builder shall review with the Owner alternative approaches to
design and construction of the Project.
1.3.5 The Design/Builder shall submit to the Owner a GMP Proposal. The GMP
Proposal shall include the completed Preliminary Design Documents for the
Manufacturing areas portion of the Project and substantially complete Design
Documents for all other areas ("Design Documents"), a statement of the proposed
contract sum, and a proposed schedule for completion of the Project. The Design
Documents shall be based on the Project Program prepared by the Design/Builder
as described above and shall consist of design drawings, outline specifications
or other documents sufficient to establish the size, quality and character of
the entire Project, its architectural, structural, mechanical, electrical,
and process systems, and the materials and such other elements of the Project as
may be appropriate. Any deviation of the Design Documents from the Project
Program shall be disclosed in the GMP Proposal. If the Owner accepts the GMP
Proposal, the parties shall then execute the Part 2 Agreement. Any Owner
approved modification to the GMP Proposal following acceptance by the Owner and
made before execution of the Part 2 Agreement shall be recorded in writing and
shall be identified appropriately in the Contract Documents of the Part 2
Agreement.
1.4 ADDITIONAL SERVICES
1.4.1 The Additional Services described under this Paragraph 1.4 shall be
provided by the Design/Builder and paid for by the Owner if authorized or
confirmed in writing by the Owner.
1.4.2 Making revisions in the Design Documents, budget or other documents
when such revisions are:
1. inconsistent with approvals or instructions previously given by the
Owner, including revisions made necessary by adjustments in the
Project Program;
2. required by the enactment or revision of codes, laws or regulations
subsequent to the preparation of such documents;
1.4.3 When authorized in writing by the Owner, the Design/Builder shall
provide professional services to assist the Owner in the preparation of the
program. Programming services may consist of:
1. consulting with the Owner and other persons or entities not designated
in this Part 1 Agreement to define the program requirements of the
Project and to review the understanding of such requirements with the
Owner;
2. documentation of the applicable requirements necessary for the various
Project functions or operations;
3. providing a review and analysis of the functional and organizational
relationships, requirements, and objectives for the Project;
4. setting forth a written program of requirements for the Owner's
approval which summarizes the Owner's objectives, schedule,
constraints, and criteria.
1.4.4 Providing financial feasibility or other special studies.
1.4.5 Providing planning surveys, site evaluations or comparative studies of
prospective sites.
1.4.6 Providing special surveys, environmental studies, and submissions
required for approvals of governmental authorities or others having jurisdiction
over the Project.
1.4.7 Providing services relative to future facilities, systems and
equipment.
1.4.8 Providing services at the Owner's specific request to perform detailed
investigations of existing conditions or facilities or to make measured drawings
thereof.
1.4.9 Providing services at the Owner's specific request to verify the
accuracy of drawings or other information furnished by the Owner.
1.4.10 Coordinating services in connection with the work of separate persons
or entities retained by the Owner, subsequent to the execution of this Part 1
Agreement.
1.4.11 Providing analyses of owning and operating costs.
1.4.12 Providing interior design and other similar services required for or
in connection with the selection, procurement or installation of furniture,
furnishings and related equipment.
1.4.13 Providing services for planning tenant or rental spaces.
1.4.14 Making investigations, inventories of materials or equipment, or
valuations and detailed appraisals of existing facilities.
ARTICLE 2
OWNER
2.1 RESPONSIBILITIES
2.1.1 Within ten (10) days of the execution of this Agreement, the Owner
shall provide the Design/Builder with information describing the Owner's Project
requirements examples of such information being identified below:
1. The Owner's overall objectives, limitations and criteria for the
Project;
2. Human, vehicular and material flow patterns that characterize the
services that the Owner will provide;
3. Tasks performed by each operating unit that will be accommodated at
the Project, an estimate of each unit's overall space requirements and
a description of how each unit must work with other operating units;
4. A list of the job titles and number of personnel assigned to each
unit, and a description of the amount and type of space required by
each;
5. A description of any special processes conducted by the Owner,
including flow diagrams, personnel requirements and the relationship
of each process to other processes that will be conducted at the
Project;
6. A list of all equipment and systems that will be located in the
Project, including the size and dimensions of each item of equipment,
and the relationship of each item of equipment to other equipment,
processes and personnel;
7. Overall utility requirements for the Project;
8. Special utility requirements for equipment and processes;
9. Site requirements;
10. Security criteria;
11. Communications requirements;
12. Requirements for future expansion or alteration;
13. A description of existing utility characteristics and utility
availability to enable the design builder to property design and
construct the Project;
14. And any other criteria that the owner determines must be addressed in
the scope of the project.
Immediately after executing this Part 1 Agreement, the Owner shall notify the
Design/Builder whether it intends to provide the information concerning its
Project requirements in written or in verbal form. If the Owner notifies the
Design/Builder that it will provide any information concerning its Project
requirements verbally, the Owner will attend a meeting arranged by the
Design/Builder to discuss its Project requirements. The Owner will review and
comment on meeting minutes prepared by the Design/Builder describing the Owner's
Project requirements within five (5) working days of receiving such meeting
minutes from the Design/Builder. The Owner shall approve, in writing, meeting
minutes revised to reflect the Owner's Project requirements.
2.1.2 The Owner shall establish and update an overall budget for the
Project, including reasonable contingencies. This budget shall not constitute
the contract sum.
2.1.3 The Owner shall designate a representative authorized to act on the
Owner's behalf with respect to the Project. The Owner or such authorized
representative shall render decisions in a timely manner pertaining to documents
submitted by the Design/Builder in order to avoid unreasonable delay in the
orderly and sequential progress of the Design/Builder's services. The Owner may
obtain independent review of the documents by a separate architect, engineer,
contractor, or cost estimator under contract to or employed by the Owner. Such
independent review shall be undertaken at the Owner's expense in a timely manner
and shall not delay the orderly progress of the Design/Builder's services.
Additionally, the Owner will reimburse the Design/Builder for any reasonable,
previously approved additional costs incurred by the Design/Builder in the
support of an independent review.
2.1.4 The Owner shall furnish surveys describing physical characteristics,
legal limitations and utility locations for the site of the Project, and a
written legal description of the site. The surveys and legal information shall
include, as applicable, grades and lines of streets, alleys, pavements, and
adjoining property and structures; adjacent drainage; rights-of-way, restrict-
tions, easements, encroachments, zoning, deed restrictions, boundaries and
contours of the site; locations, dimensions and necessary data pertaining to
existing buildings, other improvements and trees; and information concerning
available utility services and lines, both public and private, above and below
grade, including inverts and depths. All the information on the survey shall be
referenced to a Project benchmark.
2.1.5 The Owner shall furnish the services of geotechnical engineers when
such services are stipulated in this Part 1 Agreement, or reasonably deemed
necessary by the Design/Builder. Such services may include but are not limited
to test borings, test pits, determinations of soil bearing values, percolation
tests, evaluations of hazardous materials, ground corrosion and resistivity
tests, and necessary operations for anticipating subsoil conditions. The
services of geotechnical engineer(s) or other consultants shall include
preparation and submission of all appropriate reports and professional
recommendations.
2.1.6 The Owner shall disclose, to the extent known to the Owner, the results
and reports of prior tests, inspections or investigations conducted for the
Project involving: structural or mechanical systems; chemical, air and water
pollution; hazardous materials; or other environmental and subsurface
conditions. The Owner shall disclose all information known to the Owner
regarding the presence of pollutants at the Project's site. Disclosure by the
Owner of any information contemplated by this section 2.1.6 is subject to the
Design/Builder's execution of a separate confidentiality agreement in a form
acceptable to the Owner.
2.1.7 The Owner shall furnish such auditing services as the Owner may require
to verify the Design/Builder's Applications for Payment.
2.1.8 The Owner shall promptly obtain easements, zoning variances and legal
authorizations regarding site utilization where essential to the execution of
the Project Program.
2.1.9 Those services, information, surveys, and reports identified in
Paragraphs 2.1.4 through 2.1.8 which are within the Owner's control may be
furnished to the Design/Builder for informational purposes only and the
Design/Builder shall not rely on the accuracy or completeness of any such
information.
2.1.10 Design/Builder shall procure and maintain in full force and effect
throughout the term of the Agreement, at its sole cost and expense, the
following insurance coverages with an insurance carrier which is at least rated
"A" by A.M.Best: a) General Liability: $5,000,000 General Aggregate and
$5,000,000 Each Occurrence; Worker's Compensation: Statutory Limits; Errors and
Omissions: $5,000,000 per claim, and in the aggregate annually. If the Owner
requires the Design/Builder to maintain any other special insurance coverage,
policy, amendment, or rider not identified above, the Owner shall pay the
additional cost thereof except as otherwise stipulated in this Part 1 Agreement.
2.1.11 The Owner shall communicate with persons or entities employed or retained
by the Design/Builder through the Design/Builder, unless otherwise directed by
the Design/Builder.
ARTICLE 3
OWNERSHIP AND USE OF DOCUMENTS
AND ELECTRONIC DATA
3.1 Upon payment to the Design/Builder of all undisputed sums due hereunder
or subsequently agreed to as part of this Part 1 Agreement, all drawings
specifications and other documentation in whatever format prepared by the
Design/Builder for the Project shall become the property of the Owner. The
Design/Builder shall retain the originals of the drawings specifications and
other documentation and shall provide Owner with one complete set of all
documents. Drawings will be supplied in paper and electronic format and
specifications will be provided in paper format. Except if the Design/Builder
has defaulted in its obligations under this Part 1 Agreement, the Owner shall
hold the Design/Builder and its Architect harmless and indemnify the
Design/Builder and its Architect from and against all third party claims that
may arise solely and directly out of the use of the Design/Builder prepared
drawings and specifications by the Owner to construct or finalize the Project
other than by utilization of the services of the Design/Builder.
3.2 Except if the Design/Builder has defaulted in its obligations under this
Part 1 Agreement, if the Part 2 Agreement is not executed, and the Owner
proceeds with the Project using a third party, any use of the Part 1 Documents
shall be at the Owners sole risk and liability.
3.3 If the Design/Builder defaults in the Design/Builder's obligations to the
Owner, the Owner may use the drawings, specifications, and other documents and
electronic data furnished by the Design/Builder for the completion of the
Project and without obligation to the Design/Builder of any nature, conditioned
upon the Owner's payment of all undisputed sums due Design/Builder for all
services rendered up to the time of the default by the Design/Builder.
3.4 The Owner may submit or distribute the Design/Builder's documents to meet
official regulatory requirements or for similar purposes in connection with the
Project.
ARTICLE 4
TIME
4.1 Upon the request of the Owner, the Design/Builder shall prepare a
schedule for the performance of the Basic and Additional Services which shall
not exceed the time limits contained in Paragraph 10.1 and shall include
allowances for periods of time required for the Owner's review and for approval
of submissions by authorities having jurisdiction over the Project.
4.2 If the Design/Builder is delayed solely and directly by the Owner in the
performance of services under this Part 1 Agreement through no fault of the
Design/Builder, any applicable schedule shall be equitably adjusted and any
direct costs reasonably associated with restarting the Project shall be the
responsibility of the Owner.
ARTICLE 5
PAYMENTS
5.1 Payments for Basic Services, Additional Services, and Reimbursable Expenses
provided for in this Part 1 Agreement shall be made monthly on the basis set
forth in Article 9.
5.3 Within thirty (30) days of the Owner's receipt of a properly submitted and
correct Application for Payment, the Owner shall make payment to the
Design/Builder.
ARTICLE 6
DISPUTE RESOLUTION - MEDIATION
AND ARBITRATION
6.1 Subject to the terms of paragraph 6.2 below, claims, disputes or other
matters in question between the parties to this Part 1 Agreement arising out of
or relating to this Part 1 Agreement or breach thereof shall be subject to and
decided by arbitration. Such arbitration shall be conducted in accordance with
the Rules of the American Arbitration Association currently in effect.
6.2 In addition to and prior to arbitration, the parties shall first endeavor
to settle all disputes by a meeting of their respective management. If the
parties management do not agree within sixty (60) calendar days after reference
of the matter to them, then the dispute shall be finally settled by arbitration
as provided herein. The board of arbitrators shall be composed of three
arbitrators. Each party shall appoint one arbitrator. The two arbitrators so
designated shall designate the third arbitrator. If any party fails to choose an
arbitrator within thirty (30) days after notice of commencement of arbitration,
the American Arbitration Association shall, upon request of either party,
appoint the arbitrator or arbitrators to constitute or complete the panel as the
case may be. The arbitration shall be held in Boston Massachusetts.
6.3 Demand for arbitration shall be filed in writing with the other party to
this Part 1 Agreement and with the American Arbitration Association. A demand
for arbitration shall be made within a reasonable time after the claim, dispute
or other matter in question has arisen. In no event shall the demand for
arbitration 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 statutes of repose or limitations.
6.4 No arbitration arising out of or relating to this Part 1 Agreement shall
include, by consolidation, joinder or in any other manner, an additional person
or entity not a party to this Part 1 Agreement except by written consent
containing a specific reference to this Part 1 Agreement signed by the Owner,
the Design/Builder and all other persons or entities sought to be joined.
Consent to arbitration involving an additional person or entity shall not
constitute consent to arbitration of any claim, dispute or other matter in
question not described in the written consent or with a person or entity not
named or described therein. The foregoing agreement to arbitrate and other
agreements to arbitrate with an additional person or entity duly consented to by
the parties to this Part 1 Agreement shall be specifically enforceable in
accordance with applicable law in any court having jurisdiction thereof. The
award rendered by the arbitrator or arbitrators shall be final, and judgment may
be entered upon it in accordance with applicable law in any court having
jurisdiction thereof.
6.5. Each party shall bear the cost of its own attorneys fees incurred in an
arbitration proceeding and the arbitrators may not require one party to pay
another party's costs, expenses, or attorney's fees.
6.6 No provision of this section shall limit the right of any party to an
arbitration proceeding hereunder to exercise self-help remedies such as set-off,
foreclosure or sale of any collateral or security, filing a notice of lien, or
obtaining provisional or ancillary relief from a court with jurisdiction,
including attachment or injunctive relief, either before, during or after the
pendency of any arbitration or other proceeding. The exercise of any such remedy
shall not constitute a waiver by any party to seek arbitration hereunder.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 This Part 1 Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, without reference to its Conflict of Laws principles.
7.2 The Owner and the Design/Builder, respectively, bind themselves, their
partners, successors, assigns and legal representatives to
the other party to this Part 1 Agreement and to the partners, successors and
assigns of such other party with respect to all covenants of this Part 1
Agreement. Neither the Owner nor the Design/Builder shall assign this Part 1
Agreement without the written consent of the other.
7.3 Unless otherwise provided, neither the design for nor the cost of
remediation of hazardous materials shall be the responsibility of the
Design/Builder.
7.4 This Part 1 Agreement represents the entire and integrated agreement
between the Owner and the Design/Builder and supersedes all prior negotiations,
representations or agreements, either written or oral. This Part 1 Agreement may
be amended only by written instrument signed by both the Owner and the
Design/Builder.
7.5 Prior to the termination of the services of any Architect or design
professional designated in this Part 1 Agreement, the Design/Builder shall
identify to the Owner in writing another architect or design professional with
respect to whom the Owner has no reasonable objection, who will provide the
services originally to have been provided by the Architect or design
professionals whose services are being terminated.
ARTICLE 8
TERMINATION OF THE AGREEMENT
8.1 In the event of a material breach by either party to this Part 1 Agreement,
which material breach is not cured within ten (10) calendar days of written
notice setting forth the nature of the breach, then the non-breaching party may
terminate this Part 1 Agreement upon written notice.
8.2 This Part 1 Agreement may be terminated by the Owner without cause upon at
least seven (7) days' written notice to the Design/Builder.
8.3 In the event of termination of the Design/Builder in accordance with
Section 8.2 above, the Design/Builder shall be compensated for services
performed in accordance with the terms of this Agreement to the termination
date, together with Reimbursable Expenses then due.
ARTICLE 9
BASIS OF COMPENSATION
The Owner shall compensate the Design/Builder in accordance with Article 5,
Payments, and the other provisions of this Part 1 Agreement as described below.
9.1 COMPENSATION FOR BASIC SERVICES
9.1.1 FOR BASIC SERVICES, compensation shall be as follows:
9.1.2 Payments will be made by Owner based upon approved invoices sent by
Design/Builder on a monthly basis which reflect the actual number of hours
worked by Design/Builder on the Project and any actual bills received from
subcontracts during that month. The total amount that Design/Builder shall
invoice Owner and that Owner shall pay, in connection with any and all work and
services provided under this Part 1 Agreement shall not exceed Two Hundred and
Thirty Three Thousand Dollars ($233,000.00).
9.2 COMPENSATION FOR ADDITIONAL SERVICES
9.2.1 FOR ADDITIONAL SERVICES, compensation shall be as follows: Payments
will be made by the Owner based upon approved invoices sent by the
Design/Builder, that reflect the actual hours and expenses related to Additional
Services. Any additional services must be approved in advance by the Owner and
will be billed at the same manhour rates as basic services.
9.3 IF THE PARTIES AGREE IN WRITING THAT THE SCOPE of the Project is
changed materially, the amount of compensation shall be equitably adjusted.
ARTICLE 10
OTHER CONDITIONS AND SERVICES
10.1 The Basic Services to be performed shall be commenced on February 6,
2002 and, subject to authorized adjustments made in writing by the Owner, and to
delays not caused by the Design/Builder which delays it could not reasonable
anticipate or control, shall be completed by June 6, 2002. The Design/Builder's
Basic Services consist of those described in Paragraph 1.3 as part of Basic
Services, and include normal professional engineering and preliminary design
services, unless otherwise indicated.
10.2 Services beyond those described in Paragraph 1.4 are as follows:
(Insert descriptions of other services, identify Additional Services included
within Basic Compensation and modifications to the payment and compensation
terms included in this Agreement.) None.
10.3 Documents describing the Owner's Project requirements, budget, and
schedule are attached as follows, and are hereby incorporated herein:
1. Exhibit A - Project Program
ARTICLE 11
CONFIDENTIALITY
11.1 This Agreement, its content, any corresponding documents, any and all
information concerning Owner's business and its operations, whether in tangible
form or otherwise, which Design/Builder learns in connection with performance of
services under this Agreement, is confidential and proprietary information of
Owner. Design/Builder agrees to maintain and keep all such information in
confidence and not to disclose it to a third party or use such information for
any purpose, except as authorized by Owner for the performance of this
Agreement. Design/Builder shall require and insure that any subcontractor,
agent, or representative of Design/Builder performing any services in connection
with this Agreement has entered a written agreement with it to maintain Owner's
information in confidence. Design/Builder shall return all confidential and
proprietary information of Owner, and copies thereof, upon termination of this
Agreement or upon request of Owner at any time.
This Agreement entered into as of the day and year first written above.
/s/ Fred E. Faulkner /s/ Robert Hubert
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OWNER (Signature) DESIGN/BUILDER (Signature)
Fred E. Faulkner, VP OPS Robert Hubert, President
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(Printed name and title) (Printed name and title)
AIA Document A191 - Electronic Format
Standard Form of Agreement Between
Owner and Design/Builder
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS USE, COMPLETION OR MODIFICATION. AUTHENTICATION
OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT
D401.
This document comprises two separate Agreements: Part 1 Agreement and Part 2
Agreement. To the extent referenced in these Agreements, subordinate parallel
agreements to A191 consist of AIA Document A491, Standard Form of Agreements
Between Design/Builder and Contractor, and AIA Document B901, Standard Form of
Agreements Between Design/Builder and Architect.
Copyright 1985, (C)1996 The American Institute of Architects, 1735 New York
Avenue, NW, Washington, DC 20006-5292. Reproduction of the material herein or
substantial quotation of its provisions without the written permission of the
AIA violates the copyright laws of the United States and will subject the
violator to legal prosecution.
PART 2 AGREEMENT
1996 EDITION
AGREEMENT
made as of the first day of June in the year of 2002.
BETWEEN the Owner:
Mykrolis Corporation
129 Concord Road, Building #2
Billerica, MA 01821
SPEC Process Engineering & Construction
17 A Street
Burlington, MA 01803
Who hereafter may be collectively referred to as the parties to this Agreement
or, in the singular, a party to this Agreement.
For the following Project:
The complete design and construction of manufacturing and lab space within the
existing building occupied by Owner and located at 129 Concord Road Building #2,
Billerica Ma.
The architectural services described in Article 3 will be provided by the
following person or entity that is lawfully licensed to practice architecture in
Massachusetts:
Ann Myers
17 A Street
Burlington, MA 01803
Reg# MA 10071 Employee of Design/Builder
Normal structural, mechanical and electrical engineering services will be
provided by the following persons or entities that are lawfully licensed to
practice engineering in Massachusetts:
(Name, address and discipline) (Registration Number) (Relationship to
Design/Builder)
Timothy Curran MA #34711 Mechanical Employee
As Above
Ron Buia and Associates MA #29334 Electrical Subcontractor
1 Locksley Road
Lawrence, MA 01843
The Owner and the Design/Builder agree as set forth below.
TERMS AND CONDITIONS - PART 2 AGREEMENT
ARTICLE 1
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 The Contract Documents consist of the Part 1 Agreement, this Part 2
Agreement, the GMP Proposal (as defined in the Part 1 Agreement) including the
Preliminary Design Documents, and any other document prepared by the
Design/Builder specifically listed in Paragraph 14.5 of this Agreement. The
Contract Documents are based on a Project Program developed by the
Design/Builder based in part on information furnished by the Owner, approved by
the Owner and accepted by the Design/Builder as described in the Part 1
Agreement. The Contract Documents, and the Contract Documents alone, describe
the Work that is specified in the GMP Proposal and included in the Guaranteed
Maximum Price. Except for Changes in the Work, executed as required by Article 8
of this Agreement, no other information, written or verbal, regardless of date
prepared, is included in the Work (as herein-below defined) or the Guaranteed
Maximum Price.
1. The Owner has reviewed and approved the Work described in the Contract
Documents. To the best of the Owner's belief, the Work, including any
perfor-mance criteria described in the GMP Proposal, will satisfy the
Owner's requirements as described in the Project Program. Nevertheless
and notwithstanding such review and approval by Owner, the Owner is
relying upon the expertise and knowledge of the Design/Builder and for
which the Design/Builder is compen-sated hereunder and under the Part 1
Agreement, to insure that the Contract Documents will and do satisfy the
Owner's requirements. The cost of any change in the design or
construction necessary to ensure compliance with the requirements
included in the accepted Contract Documents shall be the responsibility
of the Design/Builder. Such costs will be deducted from the Project
Contingency Account as described in Article 13 of this Part 2 Agreement.
2. Any change in the Work requested by the Owner that deviates from the
specific requirements described in the accepted Contract Documents, will
be undertaken at the Owner's sole ex-pense. A Change Order or
Construction Change Directive, as described in Article 8 of this
Agreement, will be executed for all such changes in the work.
1.1.2 The term "Work" means the construction and services to be provided by the
Design/Builder to fulfill the Design/Builder's obligations as specified in the
GMP Proposal, this Part 2 Agreement, and the other Contract Documents.
1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 It is the intent of the Owner and Design/Builder that the Contract
Documents include all items necessary for proper execution and completion of the
Work. The Contract Documents are complementary, and what is required by one
shall be as binding as if required by all; performance by the Design/Builder
shall be required consistent with and reasonably inferable from the Contract
Documents as being necessary to produce the intended results. Words that have
well-known technical or
construction industry meanings are used in the Contract Documents in accordance
with such recognized meanings.
1.2.2 If the Design/Builder believes or is advised by a design professional,
including an Architect, retained by the Design/Builder to provide services on
the Project that implementation of any instruction received from the Owner would
cause a violation of any applicable law, the Design/Builder shall notify the
Owner in writing and the parties shall make good faith efforts, and work
together, to identify commercially reasonable alternatives to such instruction.
Neither the Design/Builder nor the Architect shall be obligated to perform any
act that either believes will violate any applicable law.
1.2.3 Nothing contained in this Part 2 Agreement shall create a contractual
relationship between the Owner and any person or entity other than the
Design/Builder.
1.3 OWNERSHIP AND USE OF DOCUMENTS
1.3.1 Upon payment to the Design/Builder of all undisputed sums due hereunder
or subsequently agreed to as part of this Agreement, all drawings, in paper and
electronic format, and specifications, in paper format, and other documentation
in whatever format, prepared by the Design/Builder and its design subcontractors
for the construction of the Project shall become the exclusive property of the
Owner. The Design/Builder shall retain the originals of the drawings and
specifications and shall provide Owner with one complete set of documents in
connection with the use of the drawings and specifications for the construction
of the Project. Except if the Design/Builder has defaulted in its obligations
under this Part 2 Agreement, the Owner shall defend and hold the Design/Builder
and its design subcontractors harmless and indemnify the Design/Builder and its
design subcontractors from and against all claims that may arise solely and
directly out of the use of the Design/Builder designed drawings and
specifications by the Owner to construct or finalize the Project other than by
utilization of the services of the Design/Builder.
1.3.2 If the Design/Builder defaults in the Design/Builder's obligations to the
Owner, the Owner may use the drawings, specifications, and other documents and
electronic data fur-nished by the Design/Builder for the completion of the
Project, without obligation to the Design/ Builder of any nature.
ARTICLE 2
OWNER
2.1 With the execution of this Part 2 Agreement, the Owner shall designate a
representative authorized to act on the Owner's behalf with respect to the
Project. The Owner or such authorized representative shall examine docu-ments
submitted by the Design/Builder and shall render decisions in a timely manner
and in accordance with the schedule accepted by the Owner. The Owner may obtain
independent review of the Contract Documents by a separate architect, engineer,
contractor or cost estimator under contract to or employed by the Owner. Such
independent review shall be undertaken at the Owner's expense in a timely manner
and shall not delay the orderly progress of the Work.
2.2 The Owner may appoint an on-site project representative to observe the
Work and to have such other responsibilities as the Owner and Design/Builder
agree in writing.
2.3 The Owner shall cooperate with the Design/Builder in securing building
and other permits, licenses and inspections. The Owner shall not be required to
pay the fees for such permits, licenses and inspections unless the cost of such
fees is excluded from the Design/Builder's Proposal.
2.4 The Owner shall furnish services of land surveyors, geotechnical
engineers and other consultants for subsoil, air and water conditions, in
addition to those provided under the Part 1 Agreement, when such services are
deemed necessary by the Design/Builder to properly carry out the design services
required by this Part 2 Agreement.
a. The Owner shall disclose, to the extent known to the Owner,
the results and reports of prior tests, inspections or
investigations conducted for the Project involving: structural
or mech-anical systems; chemical, air and water pollution;
hazardous materials; or other environ-mental and subsurface
condi-tions. The Owner shall disclose all information known to
the Owner regarding the presence of pollutants at the
Project's site. Disclosure by the Owner of any information
contemplated by this section 2.4 is subject to the
Design/Builder's execution of a separate confidentiality
agreement in a form acceptable to the Owner.
b. In the course of providing services under this Agreement,
Design/Builder agrees not to undertake any subsurface
activities of any nature, at any time, without first providing
Owner with advance written notice of such intended activity,
and then consulting with Owner and any representative(s) of
Owner (including, but not limited to licensed Environmental
Site Professionals) concerning recommended means and methods
for undertaking any such subsurface activities. Design/Builder
further agrees to, and shall, protect, indemnify, defend and
hold harmless Owner, Owner's employees, agents, invitees,
officers, directors and employees from and against any breach
by Design/Builder of this obligation.
2.6 The Owner shall furnish such auditing services as the Owner may require
to verify the Design/Builder's Applications for Payment.
2.6.1 Those services, information, surveys and reports identified in Paragraph
2.4 above may be furnished to the Design/Builder for informational purposes only
and the Design/Builder shall not rely on the accuracy or completeness of any
such information.
2.8 Design/Builder shall procure and maintain in full force and effect
throughout the term of this Part 2 Agreement, at its sole cost and expense, the
insurance coverages identified at Article 7 below. If the Owner requires the
Design/Builder to maintain any other special insurance coverage, policy,
amendment, or rider, the Owner shall pay the additional cost thereof, except as
otherwise stipulated in this Part 2 Agreement.
2.9 If the Owner observes or otherwise becomes aware of a fault or defect in
the Work or nonconformity with the Design/Builder's Proposal or the Construction
Documents, the Owner shall make reasonable efforts to give prompt written notice
thereof to the Design/Builder.
2.10 The Owner shall communicate with persons or entities employed or retained
by the Design/Builder through the Design/Builder, unless otherwise directed by
the Design/Builder.
2.11 The Owner may review all detailed design drawings and specifications
(including P&IDs, PFDs, Mechanical, Electrical, Plumbing and Architectural
drawings and specifications) prepared subsequent to the completion of the
Contract Documents. The Owner shall send written notification to the
Design/Builder when it has completed the review. Such notice shall include a
specific description of any deviation of the detailed drawings and
specifications from the Contract Documents that the Owner may have determined.
The Owner shall complete its review and request any revisions within ten (10)
days after the receipt of the detailed drawings and specifications. If the Owner
requests additional time to review the detailed drawings and specifications, the
Design/Builder may be entitled to additional compensation if it incurs costs
solely and directly attributable to such delay.
ARTICLE 3
DESIGN/BUILDER
3.1 SERVICES AND RESPONSIBILITIES
3.1.1 Design services required by this Part 2 Agreement shall be performed by
qualified design professionals (including Architects) duly licensed by all
appropriate and necessary licensing authorities of the Commonwealth of
Massachusetts. Such design professionals shall be retained by the Design/Builder
however the professional obligations of such professional persons or entities
are undertaken and performed in the interest of the Owner.
3.1.2 The agreements between the Design/Builder and any subcontracted design
professionals, shall be in writing. These agreements, including financial
arrangements with respect to this Project, shall be promptly and fully
disclosed to the Owner upon request. Design/Builder shall not enter any
agreement with any such subcontracted design professionals, or other
subcontractor(s) of any type, that are not duly licensed by all necessary and
appropriate licensing authorities of the Commonwealth of Mass. Moreover, Owner
shall be informed of the identity and qualifications of any subcon-tractor(s)
proposed by Design/Builder to render any service under the Agreement between the
parties and shall have the option of rejecting same.
3.1.3 The Design/Builder shall be responsible to the Owner for any and all acts
and omissions of the Design/Builder's employees, agents, rep-
resentatives or subcontractors and their agents and employees, and other
persons, including the Architect and other design professionals, performing any
portion of the Design/Builder's obligations under this Part 2 Agreement and
Design/Builder shall defend, hold harmless and fully indemnify Owner from and
against any and all claims, demands, damages, losses, liabilities, costs or
expenses of whatever nature (including settlement costs and attorneys fees)
arising out of or related to any and all claims by or on behalf of them, or
arising out of or related to any of their acts or omissions.
3.2 BASIC SERVICES
3.2.1 The Design/Builder's Basic Services are described below and in Article
14.
3.2.2 The Design/Builder shall designate a representative authorized to act on
the Design/Builder's behalf with respect to the Project.
3.2.3 The Design/Builder shall prepare detailed construction documents
including drawings, specifications, and other documents and electronic data
setting forth in detail the requirements for the construction of the Work
("Construction Documents"), which shall:
1. be consistent with the GMP Proposal;
2. provide information for the use of those in the building trades
The Construction Documents will be used in a formal, multiple bid procedure for
all required subcontractors and equipment necessary to complete the Work whose
value will exceed $10,000. The Owner may elect to continue the project without
bidding due to schedule constraints. Any determination to omit formal bidding
shall be made in writing to the Design Builder.
The Design Builder will only select bidders that have been reviewed and approved
for their ability to complete the Work as well as their financial stability. The
Owner may, at its discretion, approve all bidders prior to the commencement of
the bidding procedure.
For Subcontracts
All returned bids will be reviewed and equalized based on the required Scope of
Work and the lowest cost bid will be selected. If the Design Builder determines
that the low bidder may have a negative effect on the outcome of the project or
impair the Design Builder's ability to meet the requirements of this Agreement,
the Design Builder may elect to use a bidder other than the low bidder. If the
selected bidder is within 2.5% of the cost of the low bidder, this choice can be
made without the approval of the Owner. If the selected bidder is higher than
2.5% of the cost of the low bidder, the Design Builder must receive the approval
of the Owner.
For Purchase Orders (Equipment, etc.)
All returned bids will be reviewed and equalized based on the required Scope of
Work and the lowest cost bid will be selected. The Owner may request the
selection of an alternate bidder (i.e. not the lowest cost bid). If the Design
Builder reasonably determines that the low bidder would likely have a negative
effect on the outcome of the project or significantly impair the Design
Builder's ability to meet the requirements of this Agreement, the Design Builder
may elect to use a bidder other than the low bidder. If the selected bidder is
within 2.5% of the cost of the low bidder, this choice can be made without the
approval of the Owner. If the selected bidder is higher than 2.5% of the cost of
the low bidder, the Design Builder must receive the approval of the Owner. The
Design/Builder shall insure that in the event that it, or any of its
subcontractors, is the named purchaser of any equipment, that all warranties
with respect to such purchased equipment are passed through to Owner and that
the Owner otherwise receives the benefit of other appropriate contractual
provisions in the purchase agreement, including, among others, any intellectual
property indemnifications relating to such equipment. Design/Builder hereby
transfers all right, title and interest to the Owner of all equipment purchased
hereunder by it for the benefit of the Owner and agrees to do whatever is
necessary at any time to confirm Owner's ownership of any equipment purchased
hereunder for the benefit of Owner by anyone.
3.2.4 The Design/Builder shall assist the Owner in filing documents required to
obtain necessary approvals of government authorities having jurisdiction over
the Project. Any documents required above and beyond the standard construction
package will be supplied as additional services at the owner's request. The
Design/Builder shall submit the application for the Building Permit.
3.2.5 Unless the Owner otherwise specifically agrees in writing to provide such
the Design/Builder shall provide or cause to be provided and shall pay for all
design services, labor, materials, equipment, tools, construction equipment and
machinery, water, heat, utilities, transportation and other facilities and
services necessary for proper execution and completion of the Work, whether
temporary or permanent
and whether or not incorporated or to be incorporated in the Work.
3.2.6 The Design/Builder shall be responsible for all construction means,
methods, techniques, sequences and procedures, and for coordinating all portions
of the Work under this Part 2 Agreement.
3.2.7 The Design/Builder shall keep the Owner continually and appropriately
informed of the progress and quality of the Work.
3.2.8 The Design/Builder, at its sole cost and expense, shall be responsible
for correcting all Work that does not conform to the Contract Documents.
3.2.9 The Design/Builder warrants to the Owner that materials and equipment
furnished under the Contract will be of good quality and new unless otherwise
required or permitted by the Contract Documents, that the construction will be
free from faults and defects, that all Work will be performed in a good and
workmanlike manner and in accordance with those standards generally recognized
in the profession and industry relevant to the applicable Work or service, and
that the construction will conform with the requirements of the Contract
Documents. Any Work, service or Construction not conforming to these
requirements, including substitutions not properly approved by the Owner, shall
be corrected in accordance with Article 9.
3.2.10 The Design/Builder shall pay all sales consumer, use, and similar taxes
which had been legally enacted at the time the Design/Builder's GMP Proposal was
first submitted to the Owner as well as all taxes on equipment purchased by the
Design/Builder and on subcontractor prices unless a valid tax exemption
certificate is supplied at the signing of this Part 2 Agreement. With the
submission of a valid tax exemption certificate, only the sales taxes on direct
equipment purchases shall be waived. The Design/Builder shall also secure and
pay for building and other permits and governmental fees, licenses and
inspections necessary for the proper execution and completion of the Work which
are either customarily secured after execution of a contract for construction or
are legally required at the time the Design/Builder's Proposal was submitted to
Owner.
3.2.11 The Design/Builder shall comply with, and give all notices required by,
all laws, ordinances, rules, regulations and lawful orders of public authorities
relating to the Project.
3.2.12 The Design/Builder shall pay all royalties and license fees for patented
designs, processes or products. The Design/Builder shall defend all suits or
claims for infringement of any patent or other intellectual property rights and
shall hold the Owner harmless from and indemnify the Owner against any and all
loss on account thereof, but shall not be responsible for such defense or loss
when, and to the extent, a particular design, process or product of a particular
manufacturer is specifically required by the Owner. However, if the
Design/Builder has reason to believe the use of a required design, process or
product is an infringement of a patent or other intellectual property interest,
the Design/Builder shall be responsible for such loss unless such information is
promptly furnished to the Owner in writing.
3.2.13 The Design/Builder shall, at all times during construction, keep the
premises and surrounding area free from accumulation of waste materials or
rubbish caused by operations under this Part 2 Agreement. At the completion of
the Work, the Design/Builder shall remove from the site all waste materials,
rubbish, the Design/Builder's tools, construction equipment, machinery, and
surplus materials and otherwise satisfactorily clean all Work area(s).
3.2.14 The Design/Builder shall notify the Owner when the Work or an agreed upon
portion thereof is substantially completed. If the Owner concurs, the
Design/Builder shall issue a Certificate of Substantial Completion which shall
establish the Date of Substantial Completion, shall state the responsibility of
each party for security, maintenance, heat, utilities, damage to the Work and
insurance, shall include a list of items to be completed or corrected and shall
fix the time within which the Design/Builder shall complete items listed
therein. Disputes between the Owner and Design/Builder regarding the Certificate
of Substantial Completion shall be resolved in accordance with provisions of
Article 10.
3.2.15 The Design/Builder shall maintain at the site at all times one record
copy of the drawings and specifications, Change Orders and other modifications,
in good order and regularly updated to record the completed construction. These
shall be delivered to the Owner upon completion of construction.
3.2.16 Schedule
The Design/Builder shall perform the Work in accordance with the mutually agreed
schedule attached as Exhibit C.
3.3 ADDITIONAL SERVICES
3.3.1 The services described in this Paragraph 3.3 are not included in Basic
Services unless so identified in Article 14, and they shall be paid for by the
Owner as provided in this Part 2 Agreement, in addition to the compensation for
Basic Services. The services described in this Paragraph 3.3 shall be provided
only if authorized or confirmed in writing by the Owner.
3.3.2 Making revisions in drawings, specifications, and other documents or
electronic data when such revisions are required by the enactment or revision of
codes, laws or regulations subsequent to the preparation of such documents or
electronic data.
3.3.3 Providing consultation concerning replacement of Work damaged by fire or
other cause not the fault of Design/Builder during construction, and furnishing
services required in connection with the replacement of such Work.
3.3.4 Providing services in connection with a public hearing, arbitration
proceeding or legal proceeding, except where the Design/Builder is a party
thereto.
3.3.5 Providing coordination of construction performed by the Owner's own
forces or separate contractors employed by the Owner, and coordination of
services required in connection with construction performed and equipment
supplied by the Owner.
3.3.6 Providing assistance in the utilization of equipment or systems such as
preparation of operation and maintenance manuals, training personnel for
operation and maintenance, and consultation during operation unless these
services are provided for within the GMP Proposal.
ARTICLE 4
TIME
4.1 Unless otherwise indicated, the Owner and the Design/Builder shall
perform their respective obligations as expeditiously as is consistent with
reasonable skill and care and the orderly progress of the Project.
4.2 Time limits stated in the Contract Documents are of the essence. The
Work to be performed under this Part 2 Agreement shall commence upon receipt of
a notice to proceed unless otherwise agreed and, subject to authorized
Modifications, Substantial Completion shall be achieved on or before the date
established in Article 14.
4.3 Substantial Completion will be achieved at, or prior to, the time of
issuance of a Certificate of Occupancy by the local municipal authority. Should
the Certificate of Occupancy be delayed through no fault of the Design/Builder,
Substantial Completion will be defined as the stage in the progress of the Work
when the Work or designated portion thereof is sufficiently complete in
accordance with the Contract Documents so the Owner can occupy or utilize the
Work for its intended use.
4.4 Based on the Design/Builder's GMP Proposal, a construction schedule shall
be provided consistent with Paragraph 4.2 above.
4.5 If the Design/Builder is delayed at any time in the progress of the Work
directly by an act or neglect of the Owner, Owner's employees, or separate
contractors employed by the Owner, or by changes ordered in the Work, or by
labor disputes, fire, unusual delay in deliveries, adverse weather conditions
not reasonably anticipatable, unavoidable casualties or other causes beyond the
Design/Builder's control, or by delay authorized by the Owner pending
arbitration, or by other causes which the Owner and Design/Builder agree may
justify delay, then the Contract Time shall be reasonably extended.
ARTICLE 5
PAYMENTS
5.1 PROGRESS PAYMENTS
5.1.1 The Design/Builder shall deliver to the Owner itemized Applications for
Payment that include copies of all invoices submitted to and approved by the
Design/Builder from subcontractors, consultants and equipment suppliers.
Applications for Payment will be delivered on or before the 5/th/ of each month,
for the previous month's work. Additionally, the Design/Builder reserves the
right to produce additional Applications for Payment if required.
5.1.2 Within thirty (30) days of the Owner's receipt of a properly submitted
and correct Application for Payment, the Owner shall make payment to the
Design/Builder of all undisputed sums.
5.1.3 The Application for Payment shall constitute a representation by the
Design/Builder to the Owner that the design and construction have progressed to
the point indicated, the quality of the Work covered by the application is in
accordance with the Contract Documents, and the Design/Builder is entitled to
payment in the amount requested.
5.1.4 Upon receipt of payment from the Owner, the Design/Builder shall promptly
pay subcontracted design professionals and each contractor and subcontractor the
amount to which each is entitled in accordance with the terms of their
respective contracts and shall secure from each a duly signed Waiver of Liens
document which shall be included with the Design/Builder's Application for
Payment for the following month. The Design/Builder expressly acknowledges and
agrees that failure to so include all necessary Waiver of Liens documents in its
Application for Payment will cause any payment by Owner to be delayed until such
Waivers of Lien are obtained.
5.1.5 The Owner shall have no obligation under this Part 2 Agreement to pay or
to be responsible in any way for payment to the Architect, design professionals
or a contractor, or subcontractor performing portions of the Work and the
Design/Builder shall defend, indemnify and hold harmless Owner from any claim(s)
relating thereto.
5.1.6 Neither progress payment nor partial nor entire use or occupancy of the
Project by the Owner shall constitute an acceptance of Work not in accordance
with the Contract Documents.
5.1.7 The Design/Builder warrants that title to all construction, including any
and all equipment or other material purchased by Design/Builder or any party and
covered by an Application for Payment will pass to the Owner no later than the
time of payment and Design/Builder shall defend, indemnify and hold Owner
harmless from and against all loss or damage relating to any claims by a third
party of an ownership interest in any such construction or equipment or other
material for which Owner has made payment pursuant to an Application for
Payment. The Design/Builder further warrants that upon submittal of an
Application for Payment, all construction, Work or services for which payments
have been received from the Owner shall be free and clear of liens, claims,
security interests or encumbrances in favor of the Design/Builder or any other
person or entity performing construction at the site or furnishing materials or
equipment relating to the construction.
5.1.8 The parties agree that the Owner shall retain a sum equal to ten percent
(10%) of the total cost of all work and services performed by Design/Builder
hereunder as retainage, and shall deduct such amount on a pro rata basis from
all Applications for Payment submitted by the Design/Builder.
5.1.9 At the time of payment by the Owner of Design/Builder's Final Application
for Payment and subject to satisfactory completion of all of Design/Builder's
obligations to Owner under this Part 2 Agreement and the Part 1 Agreement, the
Owner shall release the retainage to the Design/Builder, if any, less the
reasonable cost to correct or complete incorrect or incomplete Work. Final
payment of such withheld sum shall be made upon correction or completion of such
Work.
5.2 FINAL PAYMENT
5.2.1 Neither final payment nor amounts retained, if any, shall become due
until the Design/Builder submits to the Owner: (1) an affidavit that payrolls,
bills for materials and equipment, and other indebtedness connected with the
Work for which the Owner or Owner's property might be responsible or encumbered
(less amounts withheld by the Owner) have been paid or otherwise satisfied; (2)
a certificate evidencing that insurance required by the Contract Documents to
remain in force after final payment is currently in effect and will not be
canceled or allowed to expire until at least 30 days' prior written notice has
been given to the Owner; (3) a written statement that the Design/Builder knows
of no substantial reason that the insurance will not be renewable to cover the
period required by the Contract Documents; (4) consent of surety, if any, to
final payment; and (5) if required by the Owner, other data establishing payment
or satisfaction of obligations, such as receipts, releases and waivers of liens,
claims, security interests or encumbrances arising out of the Contract, to the
extent and in such form as may be designated by the Owner; (6) a complete set of
"As-Built" drawings; (7) all written warranty and other documentation, including
title documentation, relating to any equipment or material purchased hereunder;
If a contractor or other person or entity entitled to assert a lien against the
Owner's property refuses to furnish a release or waiver required by the Owner,
the Design/Builder may furnish a bond satisfactory to the Owner to indemnify the
Owner against such lien. If such lien remains unsatisfied after payments are
made, the Design/Builder shall defend indemnify and hold harmless the Owner from
all loss and cost, including reasonable attorneys' fees incurred as a result of
such lien.
5.2.2 When the work has been completed in accordance with the Contract
Documents, the Design/Builder will submit a final Application for Payment to the
Owner. This payment will be due in thirty (30) days subject to satisfactory
completion of all of Design/Builders' obligations to Owner.
1. Within fourteen (14) days of the receipt of the Final Application for
Payment, the Owner shall deliver to the Design/Builder an itemized list
of items of the Work remaining to be completed. The Owner and
Design/Builder will then jointly determine the value of the remaining
Work items; however, in the event that the parties do not agree on the
value of such items, the Owner shall reasonably and in good faith
determine the value. The Owner shall withhold this amount from the final
payment.
2. At fourteen (14) day intervals, the Owner and Design/Builder will jointly
review the Design/Builder's progress completing the remaining Work items.
The Owner will immediately release payment to the Design/Builder for
items accepted as complete by the Owner.
5.2.3 The making of final payment shall constitute a waiver of claims by the
Owner except those arising from:
1. liens, claims, security interests or encumbrances arising out of the
Contract and unsettled;
2. failure of the Work to comply with the requirements of the Contract
Documents; or
3. terms of special warranties required by the Contract Documents.
4. any unknown or uncovered fact or circumstance for which Design/Builder
has responsibility under its Part 1 and Part 2 Agreements with Owner.
5.2.4 Acceptance of final payment shall constitute a waiver of all claims by
the Design/Builder except those previously made in writing and identified by the
Design/Builder as unsettled at the time of final Application for Payment.
ARTICLE 6
PROTECTION OF PERSONS AND PROPERTY
6.1 The Design/Builder shall be responsible for initiating, maintaining and
providing supervision of all safety precautions and programs in connection with
the performance of this Part 2 Agreement.
6.2 The Design/Builder shall take all reasonable precautions for the safety
of, and shall provide all reasonable protection to prevent damage, injury or
loss to: (1) employees on the Work and other persons who may be affected
thereby; (2) the Work and materials and equipment to be incorporated therein,
whether in storage on or off the site, under care, custody, or control of the
Design/Builder or the Design/Builder's contractors; and (3) other property at or
adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways,
structures and utilities not designated for removal, relocation or replacement
in the course of construction.
6.3 The Design/Builder shall give notices and comply with all applicable
laws, ordinances, rules, regulations and lawful orders of public authorities
bearing on the safety of persons or property or their protection from damage,
injury or loss.
6.4 The Design/Builder shall promptly remedy all damage and loss to property
at the site caused in whole or in part by the Design/Builder, a contractor of
the Design/Builder or anyone directly or indirectly employed by any of them, or
by anyone for whose acts they may be liable.
ARTICLE 7
INSURANCE AND BONDS
7.1 DESIGN/BUILDER'S LIABILITY
INSURANCE
7.1.1 The Design/Builder shall purchase from and maintain during the term of
this Agreement, and following its term as provided below, in a company or
companies lawfully authorized to do business in the jurisdiction in which the
Project is located and rated at least "A" by A.M. Best, such insurance as will
protect the Design/Builder from claims set forth below which may arise out of or
result from operations under this Part 2 Agreement by the Design/Builder or by a
contractor of the Design/Builder, or by anyone directly or indirectly employed
by any of them, or by anyone for whose acts any of them may be liable:
1. claims under workers' compensation, disability benefit and other similar
employee benefit laws that are applicable to the Work to be performed;
2. claims for damages because of bodily occupational sickness or disease, or
death of the Design/Builder's employees;
3. claims for damages because of bodily injury, sickness or disease, or
death of persons other than the Design/Builder's employees;
4. claims for damages covered by usual personal injury liability coverage
which are sustained (1) by a person as a result of an offense directly
or indirectly related to employment of such person by the
Design/Builder or (2) by another person;
5. claims for damages, other than to the Work itself, because of injury
to or destruction of tangible property, including loss of use
resulting therefrom;
6. claims for damages because of bodily injury, death of a person or
property damage arising out of ownership, maintenance or use of a
motor vehicle; and
7. claims involving contractual liability insurance applicable to the
Design/Builder's obligations under Paragraph 11.5.
The Design/Builder shall be protected by the following insurance program:
1. Workers Compensation and Employer's Liability $500,000
2. Comprehensive General Liability $5,000,000
Bodily Injury per occurrence $1,000,000
Property Damage per occurrence $1,000,000
3. Automobile Liability $1,000,000
4. Professional Errors & Omissions Liability Insurance $2,000,000
7.1.2 The insurance required by Subparagraph 7.1.1 shall be written for not
less than limits of liability specified in this Part 2 Agreement or required by
law, whichever coverage is greater. Coverages, whether written on an occurrence
or claims- made basis, shall be maintained without interruption from date of
commencement of the Work until date of final payment and termination of any
coverage required to be maintained after final payment.
7.1.3 Certificates of Insurance acceptable to the Owner shall be delivered
to the Owner immediately after execution of this Part 2 Agreement. These
Certificates and the insurance policies required by this Paragraph 7.1 shall
contain a provision that coverages afforded under the policies will not be
canceled or allowed to expire until at least 30 days' prior written notice has
been given to the Owner. If any of the foregoing insurance coverages are
required to remain in force after final payment, an additional certificate
evidencing continuation of such coverage shall be submitted with the application
for final payment. Information concerning reduction of coverage shall be
furnished by the Design/Builder with reasonable promptness in accordance with
the Design/Builder's information and belief. Such Certificates of Insurance
shall name the Owner as an additional named insured and indicate that
Design/Builder's insurance coverage is primary to any other valid and
collectible insurance available to Owner.
7.2 OWNER'S LIABILITY INSURANCE
7.2.1 The Owner shall be responsible for purchasing and maintaining the
Owner's usual liability insurance. Optionally, the Owner may purchase and
maintain other insurance for self-protection against claims that may arise from
operations under this Part 2 Agreement. The Design/Builder shall not be
responsible for purchasing and maintaining this optional Owner's liability
insurance unless specifically required by the Contract Documents
7.3 PROPERTY INSURANCE
7.3.1 Unless otherwise provided under this Part 2 Agreement, the Owner shall
purchase and maintain, in a company or companies authorized to do business in
the jurisdiction in which the principal improvements are to be located, property
insurance upon the Work to the full insurable value thereof on a replacement
cost basis without optional deductibles. Such property insurance shall be
maintained, unless otherwise provided in the Contract Documents or otherwise
agreed in writing by all persons and entities who are beneficiaries of such
insurance, until final payment has been made or until no person or entity other
than the Owner has an insurable interest in the property required by this
Paragraph 7.3 to be insured, whichever is earlier. This insurance shall include
interests of the Owner, the Design/Builder, and their respective contractors
and subcontractors in the Work.
7.3.2 Property insurance shall be on an all risk policy form and shall
insure against the perils of fire and extended coverage and physical loss or
damage including, without duplication of coverage, theft, vandalism, malicious
mischief, collapse, temporary buildings and debris removal including demolition
occasioned by enforcement of any applicable legal requirements. Coverage for
other perils shall not be required unless otherwise provided in the Contract
Documents.
7.3.3 If the Owner does not intend to purchase such property insurance
required by this Part 2 Agreement and with all of the coverages in the amount
described above, the Owner shall so inform the Design/Builder prior to
commencement of the construction. The Design/Builder may then effect insurance
that will protect the interests of the Design/Builder and the Design/Builder's
contractors in the construction, and by appropriate Change Order the cost
thereof shall be charged to the Owner. If the Design/Builder is damaged by the
failure or neglect of the Owner to purchase or maintain insurance as described
above, then the Owner shall bear all reasonable costs properly attributable
thereto.
7.3.4 Unless otherwise provided, the Owner shall purchase and maintain such
boiler and machinery insurance required by this Part 2 Agreement or by law,
which shall specifically cover such insured objects during installation and
until final acceptance by the Owner. This insurance shall include interests of
the Owner, the Design/Builder, the Design/Builder's contractors and
subcontractors in the Work, and the Design/Builder's Architect and other design
professionals. The Owner and the Design/Builder shall be named as additional
insureds.
7.3.5 A loss insured under the Owner's property insurance shall be adjusted
by the Owner as fiduciary and made payable to the Owner as fiduciary for the
insureds, as their interests may appear, subject to requirements of any
applicable mortgagee clause and of Subparagraph 7.3.10. The Design/Builder
shall pay contractors their shares of insurance proceeds received by the
Design/Builder, and by appropriate agreement, written where legally required for
validity, shall require contractors to make payments to their subcontractors
Subparagraph in similar manner.
7.3.6 If the Design/Builder requests in writing that insurance for risks
other than those described herein or for other special hazards be included in
the property insurance policy, the Owner may obtain such insurance, and the cost
thereof shall be charged to the Design/Builder by appropriate Change Order.
7.3.7 The Owner and the Design/Builder waive all rights against each other
and other design professionals, contractors, subcontractors, agents and
employees, each of the other, for damages caused by fire or other perils to the
extent covered by property insurance obtained pursuant to this Paragraph 7.3 or
other property insurance applicable to the Work, except such rights as they may
have to proceeds of such insurance held by the Owner as trustee. The Owner or
Design/Builder, as appropriate, shall require from contractors and
subcontractors by appropriate agreements, written where legally required for
validity, similar waivers each in favor of other parties enumerated in this
Paragraph 7.3. The policies shall provide such waivers of subrogation by
endorsement or otherwise. A waiver of subrogation shall be effective as to a
person or entity even though that person or entity would otherwise have a duty
of indemnification, contractual or otherwise, did not pay the insurance premium
directly or indirectly, and whether or not the person or entity had an insurable
interest in the property damaged.
7.3.8 If required in writing by a party in interest, the Owner as trustee
shall, upon occurrence of an insured loss, give bond for proper performance of
the Owner's duties. The cost of required bonds shall be charged against proceeds
received as fiduciary. The Owner shall deposit in a separate account proceeds so
received, which the Owner shall distribute in accordance with such agreement as
the parties in interest may reach, or in accordance with an arbitration award in
which case the procedure shall be as provided in Article 10. If after such loss
no other special agreement is made, replacement of damaged Work shall be covered
by appropriate Change Order.
7.3.9 The Owner as trustee shall have power to adjust and settle a loss with
insurers unless one of the parties in interest shall object in writing, within
five (5) days after occurrence of loss to the Owner's exercise of this power; if
such objection be made, the parties shall enter into dispute resolution under
procedures provided in Article 10. If distribution of insurance proceeds by
arbitration is required, the arbitrators will direct such distribution.
7.3.10 Partial occupancy or use prior to Substantial Completion shall not
commence until the insurance company or companies providing property insurance
have consented to such partial occupancy or use by endorsement or otherwise. The
Owner and the Design/Builder shall take reasonable steps to obtain consent of
the insurance company or companies and shall not, without mutual written
consent, take any action with respect to partial occupancy or use that would
cause cancellation, lapse or reduction of coverage.
7.4 LOSS OF USE INSURANCE
7.4.1 The Owner, at the Owner's option, may purchase and maintain such
insurance as will insure the Owner against loss of use of the
Owner's property due to fire or other hazards, however caused. The Owner waives
all rights of action against the Design/Builder for loss of use of the Owner's
property, including consequential losses due to fire or other hazards, however
caused.
ARTICLE 8
CHANGES IN THE WORK
8.1 CHANGES
8.1.1 Changes in the Work may be accomplished after execution of this Part 2
Agreement, without invalidating this Part 2 Agreement, by Change Order,
Construction Change Directive, or order for a minor change in the Work, subject
to the limitations stated in the Contract Documents.
8.1.2 A Change Order shall be based upon written agreement between the Owner
and the Design/Builder; a Construction Change Directive may be issued by the
Owner without the agreement of the Design/Builder.
8.1.3 Changes in the Work shall be performed under applicable provisions of
the Contract Documents, and the Design/Builder shall proceed promptly, unless
otherwise provided in the Change Order, Construction Change Directive, or order
for a minor change in the Work.
8.1.4 If unit prices are stated in the Contract Documents or subsequently
agreed upon, and if quantities originally contemplated are so changed in a
proposed Change Order or Construction Change Directive that application of such
unit prices to quantities of Work proposed will cause substantial inequity to
the Owner or the Design/Builder, the applicable unit prices shall be equitably
adjusted.
8.2 CHANGE ORDERS
8.2.1 A Change Order is a written instrument prepared by the Design/Builder
and signed by the Owner and the Design/Builder, stating their agreement upon all
of the following:
1. a change in the Work;
2. the amount of the adjustment, if any, in the Contract Sum; and
3. the extent of the adjustment, if any, in the Contract Time.
8.2.2 If the Owner requests a proposal for a change in the Work from the
Design/Builder and subsequently elects not to proceed with the change, a Change
Order shall be issued to reimburse the Design/Builder for any costs incurred for
estimating services, design services or preparation of proposed revisions to the
Contract Documents directly and solely related to the requested change.
8.3 CONSTRUCTION CHANGE DIRECTIVES
8.3.1 A Construction Change Directive is a written order prepared and signed
by the Owner, directing a change in the Work prior to agreement on adjustment,
if any, in the Contract Sum or Contract Time, or both. The following members of
the Owner's team are authorized to issue a Construction Change Directive:
1. Mykrolis Project Manager
2. Mykrolis Vice President
8.3.2 Except as otherwise agreed by the Owner and the Design/Builder, the
adjustment to the Contract Sum shall be determined on the basis of reasonable
expenditures and savings of those performing the Work attributable to the
change, including the expenditures for design services and revisions to the
Contract Documents. In case of an increase in the Contract Sum, the cost shall
include an allowance for overhead and profit as stipulated in Article 13.1.1.3.
In such case, the Design/Builder shall keep and present an itemized accounting
together with appropriate supporting data for inclusion in a Change Order.
Unless otherwise provided in the Contract Documents, costs for these purposes
shall be limited to the following:
1. costs of labor, including social security, old age and unemployment
insurance, fringe benefits required by agreement or custom, and
workers' compensation insurance;
2. costs of materials, supplies and equipment, including cost of
transportation, whether incorporated or consumed;
3. Rental costs of machinery and equipment exclusive of hand tools,
whether rented from the Design/Builder or others;
4. costs of premiums for all bonds and insurance permit fees, and sales,
use or similar taxes;
5. additional costs of supervision and field office personnel directly
attributable to the change; and fees paid to the Architect, engineers
and other professionals.
8.3.3 Pending final determination of cost to the Owner, amounts not in
dispute may be included in Applications for Payment. The amount of credit to be
allowed by the
Design/Builder to the Owner for deletion or change which results in a net
decrease in the Contract Sum will be actual net cost. When both additions and
credits covering related Work or substitutions are involved in a change, the
allowance for overhead and profit shall be figured on the basis of the net
increase, if any, with respect to that change.
8.3.4 When the Owner and the Design/Builder agree upon the adjustments in
the Contract Sum and Contract Time, such agreement shall be effective
immediately and shall be recorded by preparation and execution of an appropriate
Change Order.
8.5 CONCEALED CONDITIONS
8.5.1 If conditions are encountered at the site which are (1) subsurface or
otherwise concealed physical conditions which differ materially from those
indicated in the Contract Documents, or (2) unknown physical conditions of an
unusual nature which differ materially from those ordinarily found to exist and
generally recognized as inherent in construction activities of the character
provided for in the Contract Documents, then notice by the observing party shall
be given to the other party promptly before conditions are disturbed and in no
event later than 60 days after first observance of the conditions. The Contract
Sum shall be equitably and reasonably adjusted for such concealed or unknown
conditions by Change Order agreed to by Owner in writing upon claim by either
party made within 60 days after the claimant becomes aware of the conditions.
8.6 REGULATORY CHANGES
8.6.1 The Design/Builder shall be compensated for changes in the
construction necessitated by the enactment or revisions of codes, laws or
regulations subsequent to the submission of the Design/Builder's Proposal.
8.6.2 The Owner will compensate the Design/ Builder for costs associated
with satisfying any requirements imposed by a municipal or governmental
authority as a condition of project approval or issuance of building permits,
when such requirements exceed the requirements of applicable promulgated codes
or regulations or which represent an unusally conservative interpretation of
such code or regulatory requirements as reasonably determined by Owner. A
Change Order or Construction Change Directive as described in Article 8 of this
Agreement will be executed for all such Changes in the Work.
ARTICLE 9
CORRECTION OF WORK
9.1 The Design/Builder shall promptly correct, repair or replace, as
necessary, any Work or service rejected by the Owner or known by the
Design/Builder to be defective or failing to conform to the requirements of the
Contract Documents, whether observed before or after Substantial Completion and
whether or not fabricated, installed or completed. The Design/ Builder shall
bear all costs of correcting repairing or replacing such rejected Work or
service.
9.2 If, within one (1) year from the date of Application for Final
Payment, the Work is found to be not in accordance with the requirements of the
Contract Documents, the Design/ Builder shall correct it promptly after written
notification from the Owner, at Design/Builder's sole cost and expense. This
provision applies only to work performed by the Design/Builder and not to
equipment supplied either directly by the Design/Builder or its subcontractors.
9.2.1 If, within one year from the date of Application for Final Payment,
any equipment supplied by the Design/Builder or its subcontractors is found to
have a manufacturing defect or has failed in some way, the Design/Builder, at
its cost, will assist the Owner in enforcing the manufacturers original
warranty. These services will include applying for warranty coverage with the
manufacturer, preparation of required documents and instructions, arranging for
installation or repair personnel, and inspecting and repair or replacement work
on the Owner's behalf. The Owner is responsible for any other costs to complete
warranty repairs that are not covered in the manufacturers original warranty.
Nothing contained in this paragraph shall relieve the Design/Builder from its
responsibility and obligation to have effectively passed through to the Owner
all warranties for equipment and material purchased by the Design/Builder or any
subcontractor on behalf of the Owner.
9.3 Nothing contained in this Article 9 shall be construed to establish a
period of limitation with respect to other obligations which the Design/Builder
might have under the Contract Documents. Establishment of the time period of one
(1) year as described in Subparagraph 9.2 relates only to the specific
obligation of the Design/Builder to correct the Work, and has no relationship to
the time within which the obligation to comply with the Contract Documents may
be sought to be enforced, nor to the time within which proceedings may be
commenced to establish the Design/Builder's liability with
respect to the Design/Builder's obligations other than specifically to correct
the Work.
9.4 If the Design/Builder fails to correct nonconforming Work as required,
or fails at any time to carry out Work in accordance with the Contract Documents
and with safety and diligence, the Owner, by written order signed personally or
by an agent specifically so empowered by the Owner in writing, may order the
Design/Builder immediately to stop the Work, or any portion thereof, until the
cause for such order has been eliminated; however, the Owner's right to stop the
Work shall not give rise to a duty on the part of the Owner to exercise the
right for benefit of the Design/Builder or other persons or entities and shall
not relieve the Design/Builder in any way from any obligation which it has under
the Agreement.
9.5 If the Design/Builder defaults or neglects to carry out the Work in
accordance with the Contract Documents and fails within seven (7) days after
receipt of written notice from the Owner to commence and continue correction of
such default or neglect with diligence and promptness and to fully correct such
default or neglect within twenty-one (21) days after receipt of such written
notice, without prejudice to any other remedies the Owner may have, the Owner
may terminate this Agreement and all of its obligations under it for cause, or
correct such deficiencies itself. In the case the Owner elects to correct such
deficiencies itself, an appropriate Change Order shall be issued deducting from
payments then or thereafter due the Design/Builder, the costs of correcting such
deficiencies. If the payments then or thereafter due the Design/Builder are not
sufficient to cover the amount of the deduction, the Design/Builder shall pay
the difference to the Owner.
ARTICLE 10
DISPUTE RESOLUTION -
MEDIATION AND ARBITRATION
10.1 Subject to the terms of Article 10.2 below, claims, disputes or other
matters in question between the parties to this Part 2 Agreement arising out of
or relating to this Part 2 Agreement or breach thereof shall be subject to and
decided by arbitration. Such arbitration shall be conducted in accordance with
the Arbitration Rules of the American Arbitration Association currently in
effect.
10.2 In addition to and prior to arbitration, the parties shall first
endeavor to settle all disputes by a meeting of their respective management. If
the parties management do not agree within thirty (30) calendar days after
reference of the matter to them, then the dispute shall be finally settled by
arbitration as provided herein. The board of arbitrators shall be composed of
three arbitrators. Each party shall appoint one arbitrator. The two arbitrators
so designated shall designate the third arbitrator. If any party fails to choose
an arbitrator within thirty (30) days after notice of commencement of
arbitration, the American Arbitration Association shall, upon request of either
party, appoint the arbitrator or arbitrators to constitute or complete the panel
as the case may be. The arbitration shall be held in Boston Massachusetts.
10.3 Demand for arbitration shall be filed in writing with the other party
to this Part 2 Agreement and with the American Arbitration Association. A demand
for arbitration shall be made within a reasonable time after the claim, dispute
or other matter in question has arisen. In no event shall the demand for
arbitration 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 statutes of repose or limitations.
10.4. No arbitration arising out of or relating to this Part 2 Agreement
shall include, by consolidation, joinder or in any other manner, an additional
person or entity not a party to this Part 2 Agreement, except by written consent
containing a specific reference to this Part 2 Agreement signed by the Owner,
the Design/ Builder and any other person or entities sought to be joined.
Consent to arbitration involving an additional person or entity shall not
constitute consent to arbitration of any claim, dispute or other matter in
question not described in the written consent or with a person or entity not
named or described therein. The foregoing agreement to arbitrate and other
agreements to arbitrate with an additional person or entity duly consented to by
the parties to this Part 2 Agreement shall be specifically enforceable in
accordance with applicable law in any court having jurisdiction thereof.
10.5 The award rendered by the arbitrator or arbitrators shall be final,
and judgment may be entered upon it in accordance with applicable law in any
court having jurisdiction thereof.
10.6. Each party shall bear the cost of its own attorneys fees incurred in
an arbitration proceeding and the arbitrators may not require one party to pay
another party's costs, expenses, or attorney's fees.
10.7 No provision of this section shall limit the right of any party to an
arbitration proceeding hereunder to exercise self-help remedies such
as set-off, foreclosure or sale of any collateral or security, filing a notice
of lien, or obtaining provisional or ancillary relief from a court with
jurisdiction, including attachment or injunctive relief, either before, during
or after the pendency of any arbitration or other proceeding. The exercise of
any such remedy shall not constitute a waiver by any party to seek arbitration
hereunder.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Unless otherwise provided, this Part 2 Agreement shall be governed by
the law of the Commonwealth of Massachusetts without regard to its Conflict of
Laws principles.
11.2 SUBCONTRACTS
11.2.1 If the Owner elects in writing to forego the formal bidding process as
provided at Article 3, the Design/Builder, as soon as practicable after
execution of this Part 2 Agreement, shall furnish to the Owner in writing the
names of the persons or entities the Design/Builder will engage as contractors
for the Project. At the Owner's request, the Design/Builder shall disclose to
the Owner all bids, subcontracts and invoices executed for the Project.
11.3 WORK BY OWNER OR OWNER'S CONTRACTORS
11.3.1 The Owner reserves the right to perform construction or operations
related to the Project with the Owner's own forces, and to award separate
contracts in connection with other portions of the Project or other construction
or operations on the site. If the Design/Builder claims that delay or additional
cost is involved solely and directly because of such action by the Owner, the
Design/Builder shall assert such claims as provided in Subparagraph 11.4.
11.3.2 The Design/Builder shall afford the Owner's separate contractors
reasonable opportunity for introduction and storage of their materials and
equipment and performance of their activities and shall connect and coordinate
the Design/Builder's construction and operations with theirs as required by the
Contract Documents.
11.3.3 Costs caused by delays or by improperly timed activities or defective
construction shall be borne by the party responsible therefor.
11.4 CLAIMS FOR DAMAGES
11.4.1 If either party to this Part 2 Agreement suffers injury or damage to
person or property because of an alleged act or omission of the other party, of
any of the other party's employees or agents, or of others for whose acts such
party is legally liable, written notice of such injury or damage, whether or not
insured, shall be given to the other party within a reasonable time not
exceeding 21 days after first observance. The notice shall provide sufficient
detail to enable the other party to investigate the matter. If a claim of
additional cost or time related to this claim is to be asserted, it shall be
filed in writing.
11.5 INDEMNIFICATION
11.5.1 To the fullest extent permitted by law, the Design/Builder shall
defend, indemnify and hold harmless the Owner, Owner's consultants, and agents
and employees of any of them from and against any and all claims, damages,
losses and expenses, including but not limited to attorneys' fees, arising out
of or resulting from performance of the Work or any activities by
Design/Builder in connection with this Part 2 Agreement, but only to the extent
caused in whole or in part by the negligent acts or omissions of the
Design/Builder, anyone directly or indirectly employed by the Design/Builder or
anyone for whose acts the Design/Builder may be liable, regardless of whether or
not such claim, damage, loss or expense is caused in part by a party indemnified
hereunder. Such obligation shall not be construed to negate, abridge, or reduce
other rights or obligations of indemnity contained herein or which would
otherwise exist as to a party or person described in this Paragraph 11.5.
11.5.2 In claims against any person or entity indemnified under this
Paragraph 11.5 by an employee of the Design/Builder, anyone directly or
indirectly employed by the Design/Builder or anyone for whose acts the
Design/Builder may be liable, the indemnification obligation under this
Paragraph 11.5 shall not be limited by a limitation on amount or type of
damages, compensation or benefits payable by or for the Design/Builder under
workers' compensation acts, disability benefit acts or other employee benefit
acts.
11.6 SUCCESSORS AND ASSIGNS
11.6.1 The Owner and Design/Builder, respectively, bind themselves, their
partners, successors, assigns and legal representatives to the other party to
this Part 2 Agreement and to the
partners, successors and assigns of such other party with respect to all
covenants of this Part 2 Agreement. Neither the Owner nor the Design/Builder
shall assign this Part 2 Agreement without the written consent of the other.
The Owner may assign this Part 2 Agreement to any institutional lender
providing construction financing, and the Design/Builder agrees to execute all
consents reasonably required to facilitate such an assignment. If either party
makes such a permitted assignment, that party shall nevertheless remain legally
responsible for all of its obligations under this Part 2 Agreement, unless
otherwise agreed by the other party.
11.7 TERMINATION OF PROFESSIONAL DESIGN SERVICES
11.7.1 Prior to termination of the services of the Architect or any other
design professional designated in this Part 2 Agreement, the Design/Builder
shall identify to the Owner in writing another architect or other design
professional with respect to whom the Owner has no reasonable objection, who
will provide the services originally to have been provided by the Architect or
other design professional whose services are being terminated.
11.8 EXTENT OF AGREEMENT
11.8.1 This Part 2 Agreement represents the entire agreement between the
Owner and the Design/Builder and supersedes prior negotiations, representations
or agreements, either written or oral. This Part 2 Agreement may be amended only
by written instrument and signed by both the Owner and the Design/Builder.
ARTICLE 12
TERMINATION OF THE AGREEMENT
12.1 TERMINATION BY THE OWNER
12.1.1 This Part 2 Agreement may be terminated by the Owner upon 14 days'
written notice to the Design/Builder in the event that the Project is abandoned
by the Owner. If such termination occurs, the Owner shall pay the Design/
Builder for Work completed and for reasonable and proven loss sustained upon
materials, equipment, tools, and construction equipment and machinery, including
a reasonable profit on the Work, but excluding any profit on materials,
equipment, tools, equipment and machinery.
12.1.2 If the Design/Builder defaults or fails or neglects to carry out the
Work in accordance with the Contract Documents or fails to perform the
provisions of this Part 2 Agreement, the Owner may give written notice that the
Owner intends to terminate this Part 2 Agreement. If the Design/Builder fails to
correct the defaults, failure or neglect within fourteen (14) days after being
given notice, the Owner may without prejudice to any other remedy terminate this
Agreement and the employment of the Design/Builder and take possession of the
site and of all materials, equipment, tools and construction equipment and
machinery thereon owned by the Design/Builder and finish the Work by whatever
method the Owner may deem expedient. If the unpaid balance of the Contract Sum
exceeds the expense of finishing the Work and all damages incurred by the Owner,
such excess shall be paid to the Design/Builder. If the expense of completing
the Work and all damages incurred by the Owner exceeds the unpaid balance, the
Design/Builder shall pay the difference to the Owner. This obligation for
payment shall survive termination of this Part 2 Agreement.
12.2 TERMINATION BY THE DESIGN/BUILDER
12.2.1 If the Owner fails to make payment of any undisputed sums when due,
the Design/Builder may give written notice of the Design/Builder's intention to
terminate this Part 2 Agreement. If the Design/Builder fails to receive payment
of such undisputed sums within twenty-one (21) days after receipt of such notice
by the Owner, the Design/Builder may give a second written notice and, seven (7)
days after receipt of such second written notice by the Owner, may terminate
this Part 2 Agreement and recover from the Owner payment for Work executed.
ARTICLE 13
BASIS OF COMPENSATION
The Owner shall compensate the Design/Builder in accordance with Article 5,
Payments, and the other provisions of this Part 2 Agreement as described below.
13.1 COMPENSATION
13.1.1 For the Design/Builder's performance of the Work as described in
Paragraph 3.2 and as illustrated in the Contract Documents, and including any
other services listed in Article 14 as part of Basic Services, the Owner shall
pay the Design/Builder in current funds: a sum guaranteed not to exceed
$9,617,690 (Nine Million, Six Hundred Seventeen Thousand, Six Hundred and Ninety
Dollars) ("Guaranteed Maximum Price").
1. The Guaranteed Maximum Price includes the "Cost of the Work" as
defined below at paragraph 2, the "Design/Builder's Fee" as defined
below at paragraph 3, and the "Contingency Account" as defined below
at paragraph 4, and otherwise represents the total cost of the Project
to the Owner with the exception of Changes Orders or Change Directives
issued in accordance with Article 8 and approved by the Owner in
writing.
2. The term Cost of the Work means all costs necessarily incurred by the
Design/Builder for the proper performance of the Work as contemplated
by the Contract Documents including, but not be limited to, design and
engineering fees; labor costs; cost of the subcontracted work; costs
of materials and equipment incorporated into the completed
construction; the cost of temporary facilities, materials and
equipment; insurance and bond premiums; fees and assessments for
licenses or inspections; royalties; and professional and
administrative costs. The Design/Builder will disclose to the Owner
the results of all bids for work and shall execute contracts and
purchase orders with the Owner's participation.
3. The Design/Builder's Fee is $544,398 (Five Hundred Forty Four
Thousand, Three Hundred and Ninety Eight Dollars). The
Design/Builder's Fee is fixed and shall not be reduced even if the
Work is completed for an amount lower than the Guaranteed Maximum
Price. The Design/Builder's Fee shall be paid to the Design/Builder in
proportion with the overall completion of the design and the
construction of the Work. The Design/Builder shall also be paid a Fee
of six percent (6%) of the total cost of all Changes in the Work
executed pursuant to Article 8.
4. The Design/Builder's Contingency Account is $597,572 (Five Hundred
Ninety-Seven Thousand, Five Hundred Seventy Two Dollars). The
Design/Builder may utilize the funds in the Contingency Account to
design and construct any Work that is required by the accepted Project
Program, but which, for any reason, was not included or correctly
described in the Contract Documents and /or the GMP Proposal. The
Design/Builder may, at its sole discretion, expend any of the funds
contained in the Contingency Account to ensure that the Work is
completed as required by the Project Program and the Contract
Documents; however, the Design/Builder shall promptly give the Owner
written notification of any amounts expended and the purpose of the
expenditure. In no event shall the Contingency Account be utilized to
pay for changes in the scope of the Work that result from deviations
from the accepted Project Program or Contract Documents.
13.1.2 The difference between the Guaranteed Maximum Price as described in
Paragraph 13.1.1, adjusted by the cost of any Changes in the Work approved
pursuant to Article 8, and the actual Cost of the Work plus the Design/Builder's
fee, shall be returned to the Owner in full. This calculation is done on the
aggregate of the Guaranteed Maximum Price. Individual line items in the
submitted project budget cannot be calculated on an individual basis.
1. The Design/Builder shall maintain financial records indicating the
Cost of the Work and shall have available, for the Owner's review
at all times, a final accounting of the Cost of the Work.
2. The Owner may conduct, at its sole expense, an audit of the
Design/Builder's final accounting. This audit shall be performed by
an independent, fee based Certified Public Accountant
("accountant"), The Design/Builder shall make all financial records
for the Project available for the Owner's and the accountant's
review.
3. The Owner shall notify the Design/Builder, in writing, if the
accountant retained by the Owner reports that the Cost of the Work
is less than that claimed by the Design/Builder in its final
accounting and the Design/Builder shall immediately pay the Owner
all amounts overpaid. The Design/Builder shall be entitled to
demand arbitration in connection with any amount it pays Owner as a
result of such audit and the Design/Builder shall demand
arbitration within thirty (30) days after the Design/Builder's
payment to Owner.
ARTICLE 14
OTHER CONDITIONS AND SERVICES
14.1 The Basic Services shall commence immediately upon Design/Builder's
receipt of a signed authorization to proceed on Part 2 from the Owner and,
subject to time adjustments authorized by a Change Order or Change Directive as
required in Article 8 of this Agreement, and to force majeure delays not caused
or controllable by the Design/Builder, Substantial Completion shall be achieved
in accordance with the Schedule attached as Exhibit C which Exhibit is
incorporated herein.
14.2 The Basic Services beyond those described in Article 3 are as follows:
None
14.3 Additional Services beyond those described in Article 3 are as
follows: None
14.4 The Design/Builder shall submit an Application for Payment on the
fifth (5th) day of each month.
14.5 The Design/Builder's Proposal includes the following documents: (List
the documents by specific title and date; include any required performance and
payment bonds.)
The GMP Proposal including Addendum thereto which is attached hereto as Exhibit
B and incorporated herein.
The Part 1 Agreement including Addendum thereto which is attached hereto as
Exhibit A and incorporated herein.
Article 15
CONFIDENTIALITY
Confidentiality
15.1 This Agreement, its content, any corresponding documents, any and all
information concerning Owner's business and its operations, whether in tangible
form or otherwise, which Design/Builder learns in connection with performance of
services under this Agreement, is confidential and proprietary information of
Owner. Design/Builder agrees to maintain and keep all such information in
confidence and not to disclose it to a third party or use such information for
any purpose, except as authorized by Owner for the performance of this
Agreement. Design/Builder shall require and insure that any subcontractor,
agent, or representative of Design/Builder performing any services in connection
with this Agreement has entered a written agreement with it to maintain Owner's
information in confidence. Design/Builder shall return all confidential and
proprietary information of Owner, and copies thereof, upon termination of this
Agreement or upon request of Owner at any time.
This Agreement entered into as of the day and year first written above.
/s/ Fred E. Faulkner /s/ Robert Hubert
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MYKROLIS CORPORATION SPEC PROCESS ENGINEERING &
CONSTRUCTION INC.
BY: Fred E. Faulkner BY: Robert Hubert
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TITLE: V.P. OPS TITLE: President
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DATE: 10/24/02 DATE: 7/22/02
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