STANDARD FORM OF DESIGN-BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER AND CONTRACTOR
(Where the Basis of Payment is the Cost of the Work Plus a Fee, with
a Guaranteed Maximum Price Option)
ARTICLE 1
AGREEMENT
This Agreement is made this 30th day of August in the year 1996, by and
between the
OWNER NEOSE TECHNOLOGIES, INC.
(Name and Address) 000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
and the
CONTRACTOR XXXXX & LEIGHTON, INC.
(Name and Address) 000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
for services in connection with the following
PROJECT CLINICAL SUPPLIES PILOT PLANT FACILITY
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Notice to the parties shall be given at the above addresses.
2
ARTICLE 2
GENERAL PROVISIONS
2.1 TEAM RELATIONSHIP The Owner and the Contractor agree to proceed with the
Project on the basis of trust, good faith and fair dealing, and shall take all
actions reasonably necessary to perform this Agreement in an economical and
timely manner, including consideration of design modifications and alternative
materials or equipment that will permit the Work to be constructed within the
Guaranteed Maximum Price (GMP) and by the date of Substantial Completion, if
they are established by Amendment No. 1. The Contractor agrees to procure the
architectural and engineering services set forth below, and to furnish
construction and administration of the Work.
2.2 ARCHITECT/ENGINEER Architectural and engineering services shall be procured
from licensed, independent design professionals retained by the Contractor or
furnished by licensed employees of the Contractor, or as permitted by the law of
the state where the Project is located. The person or entity providing
architectural and engineering services shall be referred to as the
Architect/Engineer. If the Architect/Engineer is an independent design
professional, the architectural and engineering services shall be procured
pursuant to a separate agreement between the Contractor and the
Architect/Engineer. The Architect/Engineer for the Project is Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxxx.
2.3 EXTENT OF AGREEMENT This Agreement is solely for the benefit of the parties,
represents the entire and integrated agreement between the parties, and
supersedes all prior negotiations, representations or agreements, either written
or oral.
2.4 DEFINITIONS
.1 The Contract Documents consist of:
a. Change Orders and written amendments to this Agreement signed by
both the Owner and Contractor, including Amendment No. 1 if executed;
b. this Agreement except for the existing Contract Documents set forth
in item e below;
c. the most current Documents approved by the Owner pursuant to
Subparagraphs 3.1.4, 3.1.5 or 3.1.6;
d. the information provided by the Owner pursuant to Clause 4.1.2.1;
e. the Contract Documents in existence at the time of execution of
this Agreement which are set forth in Article 15;
f. the Owner's Program provided pursuant to Subparagraph 4.1.1.
In case of any inconsistency, conflict or ambiguity among the Contract
Documents, the Documents shall govern in the order in which they are listed
above.
.2 The Work is the Design Phase Services procured in accordance with
Paragraph 3.1, the GMP Proposal provided in accordance with Paragraph 3.2,
the Construction Phase Services provided in accordance with Paragraph 3.3,
Additional Services that may be provided in accordance with Paragraph 3.8,
and other services which are necessary to complete the Project in
accordance with and reasonably inferable from the Contract Documents.
.3 The term Day shall mean calendar day.
.4 A Subcontractor is a person or entity who has an agreement with the
Contractor to perform any portion of the Work. The term Subcontractor does
not include the Architect/Engineer or any separate contractor employed by
the Owner or any separate contractor's subcontractors.
.5 A Subsubcontractor is a person or entity who has an agreement with a
Subcontractor to perform any portion of the Subcontractor's work.
.6 Substantial Completion of the Work, or of a designated portion, occurs
on the date when construction is sufficiently complete in accordance with
the Contract Documents so that the Owner can occupy or utilize the Project,
or a designated portion, for the use for which it is intended. This date
shall be confirmed by a certificate of Substantial Completion signed by the
Owner and Contractor. The certificate shall state the respective
responsibilities of the Owner and Contractor for security, maintenance,
heat, utilities, damage to the Work, and insurance. The certificate shall
also list the items to be completed or corrected, and establish the time
for their completion and correction.
.7 The Owner's Program is an initial description of the Owner's objectives,
including budgetary and time criteria, space requirements and
relationships, flexibility and expandability requirements, special
equipment and systems, and site requirements.
ARTICLE 3
CONTRACTOR'S RESPONSIBILITIES
The Contractor shall be responsible for procuring the design and for the
construction of the Work consistent with the Owner's Program, as such Program
may be modified by the Owner during the course of the Work. The Contractor shall
exercise reasonable skill and judgment in the performance of its services, but
does not warrant or guarantee schedules and estimates other than those that are
part of the GMP proposal.
3.1 DESIGN PHASE SERVICES
3.1.1 PRELIMINARY EVALUATION The Contractor shall provide a preliminary
evaluation of the Project's feasibility based on the Owner's Program and other
relevant information.
3.1.2 PRELIMINARY SCHEDULE The Contractor shall prepare a preliminary schedule
of the Work for the Owner's written approval. The schedule shall show the
activities of the Owner, Architect/Engineer and Contractor necessary to meet the
Owner's completion requirements. The schedule shall be updated periodically with
the level of detail for each schedule update reflecting the information then
available. If an update indicates that a previously approved schedule will not
be met, the Contractor shall recommend corrective action to the Owner in
writing.
3
3.1.3 PRELIMINARY ESTIMATE When sufficient Project information has been
identified, the Contractor shall prepare for the Owner's written approval a
preliminary estimate utilizing area, volume or similar conceptual estimating
techniques. The estimate shall be updated periodically with the level of detail
for each estimate update reflecting the information then available. If the
preliminary estimate or any update exceeds the Owner's budget, the Contractor
shall make written recommendations to the Owner.
3.1.4 SCHEMATIC DESIGN DOCUMENTS The Contractor shall submit for the Owner's
written approval Schematic Design Documents, based on the Owner's Program and
other relevant information. Schematic Design Documents shall include drawings,
outline specifications and other conceptual documents illustrating the Project's
basic elements, scale, and their relationship to the site. One set of these
documents shall be furnished to the Owner. The Contractor shall update the
preliminary schedule and estimate based on the Schematic Design Documents.
3.1.5 DESIGN DEVELOPMENT DOCUMENTS The Contractor shall submit for the Owner's
written approval Design Development Documents based on the approved Schematic
Design Documents. The Design Development Documents shall further define the
Project including drawings and outline specifications fixing and describing the
Project size and character, and other appropriate elements incorporating the
structural, architectural, mechanical and electrical systems. One set of these
documents shall be furnished to the Owner. The Contractor shall update the
schedule and estimate based on the Design Development Documents.
3.1.6 CONSTRUCTION DOCUMENTS The Contractor shall submit for the Owner's written
approval Construction Documents based on the approved Design Development
Documents. The Construction Documents shall set forth in detail the requirements
for construction of the Work, and shall consist of drawings and specifications
based upon codes, laws or regulations enacted at the time of their preparation.
Construction shall be in accordance with these approved Construction Documents.
One set of these documents shall be furnished to the Owner prior to commencement
of construction. If a GMP has not been established, the Contractor shall prepare
a further update of the schedule and estimate.
3.1.7 OWNERSHIP OF DOCUMENTS All Documents shall remain the property of the
Contractor and are not to be used by the Owner without the written consent of
the Contractor.
3.2 GUARANTEED MAXIMUM PRICE (GMP) PROPOSAL
3.2.1 When the drawings and specifications are sufficiently complete, the
Contractor shall, propose a GMP, which shall be the sum of the estimated
Cost of the Work as defined in Article 8 and the Contractor's Fee as defined in
Article 7. The GMP is subject to modification as provided in Article 9.
3.2.2 [Intentionally Omitted]
3.2.3 The estimated Cost of the Work may include the Contractor's contingency,
a sum established by the Contractor for use at the Contractor's discretion
to cover costs which are properly reimbursable as a Cost of the Work but are not
the basis for a Change Order.
3.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The Contractor shall include with the
GMP proposal a written statement of its basis, which shall include:
.1 a list of the drawings and specifications, including all addenda, which
were used in preparation of the GMP proposal;
.2 a list of allowances and a statement of their basis;
.3 a list of the assumptions and clarifications made by the Contractor in
the preparation of the GMP proposal to supplement the information contained
in the drawings and specifications;
.4 the date of Substantial Completion upon which the proposed GMP is based,
and the Schedule of Work upon which the date of Substantial Completion is
based;
.5 schedule of applicable alternate prices;
.6 schedule of applicable unit prices;
.7 statement of Additional Services included, if any; and
.8 the time limit for acceptance of the GMP proposal.
3.2.5 The Contractor shall meet with the Owner to review the GMP proposal. In
the event that the Owner discovers any inconsistencies or inaccuracies in the
information presented, the Owner shall promptly give written notice to the
Contractor, who shall make appropriate adjustments to the GMP, its basis or
both.
3.2.6 Unless the Owner accepts the GMP proposal in writing on or before the date
specified in the proposal for such acceptance and so notifies the Contractor,
the GMP proposal shall not be effective without written acceptance by the
Contractor.
3.2.7 Prior to the Owner's acceptance of the Contractor's GMP proposal, the
Contractor shall incur costs to be reimbursed as part of the Cost of the Work,
as provided in this Agreement or as the Owner may specifically authorize in
writing.
3.2.8 Upon acceptance by the Owner of the GMP proposal, the GMP and its basis
shall be set forth in Amendment No. 1. The GMP and the date of Substantial
Completion shall be subject to modification by changes in the Work as provided
in Articles 6 and 9.
3.2.9 The GMP shall include in the Cost of the Work those taxes which are
applicable at the time the GMP is established. If in accordance with the Owner's
direction an exemption is claimed for taxes, the Owner agrees to indemnify,
defend and hold the Contractor harmless for any liability, penalty, interest,
fine, tax assessment, attorneys fees or other expense or cost incurred by the
Contractor as a result of any action taken by the Contractor in accordance with
the Owner's direction.
3.3 CONSTRUCTION PHASE SERVICES
3.3.1 The Construction Phase will commence upon the issuance by the Owner
of a written notice to proceed with
4
construction. If construction commences prior to execution of Amendment No. 1,
the Owner's written notice to proceed shall list the documents that are
applicable to the part of the Work which the Owner has authorized.
3.3.2 In order to complete the Work, the Contractor shall provide all necessary
construction supervision, inspection, construction equipment, labor, materials,
tools, and subcontracted items.
3.3.3 The Contractor shall give all notices and comply with all laws and
ordinances legally enacted at the date of execution of the Agreement which
govern the proper performance of the Work.
3.3.4 The Contractor shall prepare and submit a Schedule of Work for the Owner's
written approval. This schedule shall indicate the dates for the start and
completion of the various stages of the construction including the dates when
information and approvals are required from the Owner. It shall be revised as
required by the conditions of the Work.
3.3.5 The Contractor shall secure the building permits necessary for the
construction of the Project.
3.3.6 The Contractor shall take necessary precautions for the safety of its
employees on the Project, and shall comply with all applicable provisions of
federal, state and municipal safety laws to prevent accidents or injury to
persons on, about or adjacent to the Project site. The Contractor, directly or
through its Subcontractors, shall erect and properly maintain at all times, as
required by the conditions and progress of the Work, necessary safeguards for
the protection of workers and the public. The Contractor, however, shall not be
responsible for the elimination or abatement of safety hazards created or
otherwise resulting from work at the Project site carried on by the Owner or its
employees, agents, separate contractors or tenants. The Owner agrees to cause
its employees, agents, separate contractors and tenants to abide by and fully
adhere to all applicable provisions of federal, state and municipal safety laws
and regulations. The above provision shall not relieve Subcontractors of their
responsibility for the safety of persons or property in the performance of their
work, nor for compliance with all applicable provisions of relevant laws.
3.3.7 The Contractor shall keep such full and detailed accounts as may be
necessary for proper financial management under this Agreement. The Owner shall
be afforded access to all the Contractor's records, books, correspondence,
instructions, drawings, receipts, vouchers, memoranda and similar data relating
to this Agreement. The Contractor shall preserve all such records for a period
of three years after the final payment or longer where required by law.
3.3.8 The Contractor shall provide periodic written reports to the Owner on the
progress of the Work as agreed to by the Owner and Contractor.
3.3.9 The Contractor shall develop a system of cost reporting for the Work,
including regular monitoring of actual costs for activities in progress and
estimates for uncompleted tasks and proposed changes in the Work. The reports
shall be presented to the Owner at mutually agreeable intervals.
3.3.10 At all times the Contractor shall maintain the site of the Work free
from debris and waste materials resulting from the Work. At the completion of
the Work, the Contractor shall remove from the premises all construction
equipment, tools, surplus materials, waste materials and debris.
3.4 HAZARDOUS MATERIAL
3.4.1 A Hazardous Material is any substance or material identified now or in the
future as hazardous under any federal, state or local law or regulation, or any
other substance or material which may be considered hazardous or otherwise
subject to statutory or regulatory requirements governing handling, disposal
and/or clean-up. The Contractor shall not be obligated to commence or continue
Work until any known or suspected Hazardous Material discovered at the Project
site has been removed, rendered or determined to be harmless by the Owner as
certified by an independent testing laboratory and approved by the appropriate
government agency.
3.4.2 If after the commencement of the Work, known or suspected Hazardous
Material is discovered at the Project site, the Contractor shall be entitled to
immediately stop Work in the affected area, and the Contractor shall report the
condition to the Owner and, if required, the government agency with
jurisdiction.
3.4.3 The Contractor shall not be required to perform any Work relating to or in
the area of known or suspected Hazardous Material without written mutual
agreement.
3.4.4 The Owner shall be responsible for retaining an independent testing
laboratory to determine the nature of the material encountered and whether it is
a Hazardous Material requiring corrective measures and/or remedial action. Such
measures shall be the sole responsibility of the Owner, and shall be performed
in a manner minimizing any adverse effect upon the Work of the Contractor. The
Contractor shall resume Work in the area affected by any Hazardous Material only
upon written agreement between the parties after the Hazardous Material has been
removed or rendered harmless.
3.4.5 If the Contractor incurs additional costs and/or is delayed due to the
presence of known or suspected Hazardous Material, the Contractor shall be
entitled to an equitable adjustment in the GMP and/or the date of Substantial
Completion.
3.4.6 To the fullest extent permitted by law, the Owner shall defend, indemnify
and hold harmless the Contractor, Architect/Engineer, Subcontractors and
Subsubcontractors, and the agents, officers, directors and employees of each of
them, from and against any and all claims, damages, losses, costs and expenses,
whether direct, indirect or consequential, including but not limited to
attorney's fees, costs and expenses incurred in connection with litigation or
arbitration, arising out of or relating to the performance of the Work in any
area affected by Hazardous Material. To the fullest extent permitted by law,
such indemnification shall apply regardless of the fault, negligence, breach of
warranty or contract, or strict liability of the indemnitee.
3.4.7 The terms of this Paragraph 3.4 shall survive the completion of the Work
under this Agreement and/or any termination of this Agreement.
3.5 ROYALTIES, PATENTS AND COPYRIGHTS The Contractor shall pay all royalties and
license fees which may be due on the inclusion of any patented or copyrighted
5
materials, methods, equipment, or systems selected by the Contractor and
incorporated in the Work. The Contractor shall defend, indemnify and hold the
Owner harmless from all suits or claims for infringement of any patent rights or
copyrights arising out of such selection. The Owner agrees to defend, indemnify
and hold the Contractor harmless from any suits or claims of infringement of any
patent rights or copyrights arising out of any patented or copyrighted
materials, methods, equipment or systems specified by the Owner.
3.6 TAX EXEMPTION If in accordance with the Owner's direction an exemption is
claimed for taxes, the Owner agrees to defend, indemnify and hold the Contractor
harmless from any liability, penalty, interest, fine, tax assessment, attorneys
fees or other expense or cost incurred by the Contractor as a result of any
action taken by the Contractor in accordance with the Owner's direction.
3.7 WARRANTIES AND COMPLETION
3.7.1 The Contractor warrants that all materials and equipment furnished under
the Construction Phase of this Agreement will be new unless otherwise specified,
of good quality, in conformance with the Contract Documents, and free from
defective workmanship and materials. Warranties shall commence on the date of
Substantial Completion of the Work or of a designated portion. The Contractor
agrees to correct all construction performed under this Agreement which proves
to be defective in workmanship and materials within a period of one year from
the date of Substantial Completion or for such longer periods of time as may be
set forth with respect to specific warranties required by the Contract
Documents.
3.7.2 Those products, equipment, systems or materials incorporated in the Work
at the direction of or upon the specific request of the Owner (e.g. process
equipment) shall be covered exclusively by the warranty of the manufacturer.
There are no warranties which extend beyond the description on the face thereof.
All other warranties expressed or implied including the warranty of
merchantability and the warranty of fitness for a particular purpose are
expressly disclaimed.
3.7.3 The Contractor shall secure required certificates of inspection, testing
or approval and deliver them to the Owner.
3.7.4 The Contractor shall collect all written warranties and equipment manuals
and deliver them to the Owner.
3.7.5 With the assistance of the Owner's maintenance personnel, the Contractor
shall direct the checkout of utilities and operations of systems and equipment
for readiness, and assist in their initial start-up and testing. Validation of
building support and process systems shall be performed as agreed upon with
Owner.
3.8 ADDITIONAL SERVICES The Contractor shall provide or procure the following
Additional Services upon the request of the Owner. A written agreement between
the Owner and Contractor shall define the extent of such Additional Services. If
a GMP has been established for the Work or any portion of the Work, such
Additional Services shall be considered a Change in the Work, unless they are
specifically included in the statement of the basis of the GMP as set forth in
Amendment No. 1.
.1 Documentation of the Owner's Program, establishing the Project budget,
investigating sources of financing, general business planning and other
information and documentation as may be required to establish the
feasibility of the Project.
.2 Consultations, negotiations, and documentation supporting the
procurement of Project financing.
.3 Surveys, site evaluations, legal descriptions and aerial photographs.
.4 Appraisals of existing equipment, existing properties, new equipment and
developed properties.
.5 Soils, subsurface and environmental studies, reports and investigations
required for submission to governmental authorities or others having
jurisdiction over the Project.
.6 Consultations and representations other than normal assistance in
securing building permits, before governmental authorities or others having
jurisdiction over the Project.
.7 Investigation or making measured drawings of existing conditions or the
verification of drawings or other Owner-provided information.
.8 Artistic renderings, models and mockups of the Project or any part of
the Project or the Work.
.9 Inventories of existing furniture, fixtures, furnishings and equipment
which might be under consideration for incorporation into the Work.
.10 Interior design and related services including procurement and
placement of furniture, furnishings, artwork and decorations.
.11 Making revisions to the Schematic Design, Design Development,
Construction Documents or documents forming the basis of the GMP after they
have been approved by the Owner, and which are due to causes beyond the
control of the Contractor.
.12 Design, coordination, management, expediting and other services
supporting the procurement of materials to be obtained, or work to be
performed, by the Owner, including but not limited to telephone systems,
computer wiring networks, sound systems, alarms, security systems and other
specialty systems which are not a part of this Agreement.
.13 Estimates, proposals, appraisals, consultations, negotiations and
services in connection with the repair or replacement of an insured loss.
.14 The premium portion of overtime work ordered by the Owner including
productivity impact costs.
.15 Document reproduction exceeding the limits provided for in this
Agreement.
.16 Out-of-town travel by the Architect/Engineer in connection with the
Work, except between the Architect/Engineer's office, Contractor's office,
Owner's office and the Project site.
.17 Obtaining service contractors and training maintenance personnel,
assisting and consulting in the use of systems and equipment after the
initial start up, and adjusting and balancing of systems and equipment.
.18 Services for tenant or rental spaces not a part of this Agreement.
6
.19 Services requested by the Owner or required by the Work which are not
specified in the Contract Documents and which are not normally part of
generally accepted design and construction practice.
.20 Serving or preparing to serve as an expert witness in connection with
any proceeding, legal or otherwise, regarding the Project.
.21 Preparing reproducible record drawings from marked-up prints, drawings
or other documents that incorporate significant changes in the Work made
during the Construction Phase.
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 INFORMATION AND SERVICES PROVIDED
BY OWNER
4.1.1 The Owner shall provide full information in a timely manner regarding
requirements for the Project, including the Owner's Program and other relevant
information.
4.1.2 The Owner shall provide:
.1 all necessary information describing the physical characteristics of the
site, including surveys, site evaluations, legal descriptions, existing
conditions, subsurface and environmental studies, reports and
investigations;
.2 inspection and testing services during construction as required by law
or as mutually agreed; and
.3 unless otherwise provided in the Contract Documents, necessary
approvals, site plan review, rezoning, easements and assessments, necessary
permits, fees and charges required for the construction, use, occupancy or
renovation of permanent structures, including legal and other required
services.
4.1.3 The Owner shall provide reasonable evidence satisfactory to the
Contractor, prior to commencing the Work and during the progress of the Work,
that sufficient funds are available and committed for the entire cost of the
Project, including an allowance for changes in the Work as may be approved in
the course of the Work. Unless such reasonable evidence is provided, the
Contractor shall not be required to commence or continue the Work. The
Contractor may stop Work after seven (7) days' written notice to the Owner if
such evidence is not presented within a reasonable time. The failure of the
Contractor to insist upon the providing of this evidence at any one time shall
not be a waiver of the Owner's obligation to make payments pursuant to this
Agreement, nor shall it be a waiver of the Contractor's right to request or
insist that such evidence be provided at a later date.
4.1.4 The Contractor shall be entitled to rely on the completeness and accuracy
of the information and services required by this Paragraph 4.1.
4.2 OWNER'S RESPONSIBILITIES
DURING DESIGN PHASE
4.2.1 The Owner shall provide the Owner's Program at the inception of the Design
Phase and shall review and timely approve schedules, estimates, Schematic Design
Documents, Design Development Documents and Construction Documents furnished
during the Design Phase as set forth in Paragraph 3.1, and the GMP proposal as
set forth in Paragraph 3.2.
4.3 OWNER'S RESPONSIBILITIES
DURING CONSTRUCTION PHASE
4.3.1 The Owner shall review and timely approve the Schedule of the Work as
set forth in Subparagraph 3.3.4
4.3.2 If the Owner becomes aware of any error, omission or failure to meet the
requirements of the Contract Documents or any fault or defect in the Work, the
Owner shall give prompt written notice to the Contractor
4.3.3 The Owner shall communicate with the Contractor's Subcontractors,
suppliers and Architect/Engineer only through the Contractor. The Owner shall
have no contractual obligations to Subcontractors, suppliers, or the
Architect/Engineer.
4.3.4 The Owner shall provide insurance for the Project as provided in Article
11.
4.4 OWNER'S REPRESENTATIVE The Owner's representative is Mr. Xxxxxx XxXxxxx or
Mr. Xxxxxx Xxxxxxx who is agreed to by the Contractor. The representative:
.1 shall be fully acquainted with the Project;
.2 agrees to furnish the information and services required of the Owner
pursuant to Paragraph 4.1 so as not to delay the Contractor's Work; and
.3 shall have authority to bind the Owner in all matters requiring the
Owner's approval, authorization or written notice. If the Owner changes its
representative or the representative's authority as listed above, the Owner
shall notify the Contractor in advance in writing. The Contractor shall
have the right to approve any successor representative.
ARTICLE 5
SUBCONTRACTS
Work not performed by the Contractor with its own forces shall be performed by
Subcontractors.
5.1 RETAINING SUBCONTRACTORS The Contractor shall not retain any Subcontractor
to whom the Owner has a reasonable and timely objection, provided that the Owner
agrees to compensate the Contractor for any additional costs incurred by the
Contractor as a result of such objection. The Contractor shall not be required
to retain any Subcontractor to whom the Contractor has a reasonable objection.
5.2 MANAGEMENT OF SUBCONTRACTORS The Contractor shall be responsible for the
management of the Subcontractors in the performance of their work.
7
5.3 ASSIGNMENT OF SUBCONTRACT AGREEMENTS The Contractor shall provide for
assignment of subcontract agreements in the event that the Owner terminates this
Agreement for cause as provided in Paragraph 12.2. Following such termination,
the Owner shall notify in writing those subcontractors whose assignments will be
accepted, subject to the rights of sureties.
ARTICLE 6.
CONTRACT TIME
6.1 COMMENCEMENT OF THE WORK The Work shall commence on or about *________, and
shall proceed in general accordance with the Schedule of Work as such schedule
may be amended from time to time, subject, however, to the provisions of
Paragraph 3.4 and Subparagraph 4.1.3.
6.2 SUBSTANTIAL COMPLETION At such time as a GMP is accepted, a date of
Substantial Completion of the Work shall be established as set forth in
Amendment No. 1. If a GMP is not established and the parties desire to establish
a date of Substantial Completion, it shall be set forth in Amendment No.1. If
such a date is established, time shall be of the essence of this Agreement.
6.3 DELAYS IN THE WORK
6.3.1 If causes beyond the Contractor's control delay the progress of the Work,
then the GMP, compensation for Design Phase Services, the Contractor's Fee
and/or the date of Substantial Completion shall be modified by Change Order as
appropriate. Such causes shall include but not be limited to: changes ordered in
the Work, acts or omissions of the Owner or separate contractors employed by the
Owner, the Owner preventing the Contractor from performing the Work pending
dispute resolution, Hazardous Materials, differing site conditions, adverse
weather conditions not reasonably anticipated, fire, unusual transportation
delays, labor disputes, or unavoidable accidents or circumstances.
6.3.2 In the event delays to the project are encountered for any reason, the
parties agree to undertake reasonable steps to mitigate the effect of such
delays.
*Preconstruction services including design and ordering of long-lead equipment
commence immediately; onsite work starts as permits and documentation are
available.
ARTICLE 7
COMPENSATION
7.1 [Intentionally Omitted]
7.2 Design Phase Compensation
7.2.1 The cost of services performed directly by the Architect/Engineer is
computed separately and is independent from the Contractor's compensation for
work or services directly performed by the Contractor; these costs shall be
shown as separate items on applications for payment. If an Architect/Engineer is
retained by the Contractor, the payments to the Architect/Engineer shall be as
detailed in a separate agreement between the Contractor and Architect/Engineer.
7.2.2 The Owner shall compensate the Contractor for services performed during
the Design Phase as described in Paragraph 3.1, including preparation of a GMP
proposal as described in Paragraph 3.2, as follows:
(State whether a stipulated sum, actual cost, or other basis. If a stipulated
sum, state what portion of the sum shall be payable each month.)
.1 Reimbursement of all costs for Design & Engineering and Validation
.2 Reimbursement for other costs as outlined in Article 8.1
.3 Reimbursement for personnel as per attached hourly billing rates
.4 Contractor's stated percentage fee as per 7.3.1 applicable to items .1
through .3 above.
7.2.3 Compensation for Design Phase Services shall be equitably adjusted if such
services extend beyond six months from the date of this Agreement for reasons
beyond the reasonable control of the Contractor or as provided in Paragraph 9.1.
For changes in Design Phase Services, compensation shall be adjusted as follows:
To be negotiated.
7.2.4 Payments for Design Phase Services shall be due and payable within twenty
(20) days following presentation of the Contractor's monthly invoice to the
Owner. If the Owner fails to pay the Contractor as agreed, then the Contractor
shall have the right to stop the Work and be entitled to payments due plus
interest as provided in Subparagraphs 10.1.3 and 10.1.4.
7.3 CONSTRUCTION PHASE COMPENSATION
7.3.1 The Owner shall compensate the Contractor for Work performed following the
commencement of the Construction Phase on the following basis:
.1 the Cost of the Work as allowed in Article 8; and
.2 the Contractor's Fee in the amount of 2.95% of the accepted GMP fee; to
be fixed upon acceptance of GMP. ($ To be determined subject to adjustment
as provided in Paragraph 7.5. The Contractor's Fee shall be paid
proportionately to the ratio that the monthly Cost of the Work bears to the
total estimated Cost of the Work.)
7.3.2 The compensation to be paid under this Paragraph 7.3 shall be limited
to the GMP established in Amendment No. 1,
8
as the GMP may be adjusted under Article 9. In the event the Cost of the Work
plus the Contractor's Fee shall be less than the GMP as adjusted by Change
Orders, the resulting savings shall be shared by the Owner and the Contractor in
accordance with attached Rider 1.
7.3.3 Payment for Construction Phase Services shall be as set forth in Article
10. If Design Phase Services continue to be provided after construction has
commenced, the Contractor shall also continue to be compensated as provided in
Paragraph 7.2, or as mutually agreed.
7.3.4 Schedule Incentive - See attached Rider 2.
7.4 CONTRACTOR'S FEE The Contractor's Fee includes the following:
.1 salaries and other mandatory or customary compensation of the
Contractor's employees at its principal and branch offices, except
employees listed in Subparagraph 8.2.2;
.2 general and administrative expenses of the Contractor's principal and
branch offices other than the field office, except as may be expressly
included in Article 8; and
.3 the Contractor's capital expenses, including interest on the
Contractor's capital employed for the Work.
7.5 ADJUSTMENT IN THE CONTRACTOR'S FEE Adjustment in the Contractor's Fee shall
be made as follows.
.1 for changes in the Work as provided in Article 9, the Contractor's Fee
shall be adjusted as follows:
To be negotiated.
.2 for delays in the Work not caused by the Contractor, there will be an
equitable adjustment in the Contractor's Fee to compensate the Contractor
for increased expenses; and
.3 if the Contractor is placed in charge of managing the replacement of an
insured or uninsured loss, the Contractor shall be paid an additional Fee
in the same proportion that the Contractor's Fee bears to the estimated
Cost of the Work.
ARTICLE 8
COST OF THE WORK
The Owner agrees to pay the Contractor for the Cost of the Work as defined in
this Article. This payment shall be in addition to the Contractor's Fee
stipulated in Article 7.
8.1 COST ITEMS FOR DESIGN PHASE SERVICES
8.1.1 Compensation for Design Phase Services as provided
in Paragraph 7.2.
8.2 COST ITEMS FOR CONSTRUCTION PHASE SERVICES
8.2.1 Wages paid for labor in the direct employ of the Contractor in the
performance of the Work.
8.2.2 Salaries of Contractor's employees when stationed at the field office, in
whatever capacity employed, employees engaged on the road expediting the
production or transportation of material and equipment, and employees from the
principal or branch office performing the functions listed on the attached
Personnel Schedule. Personnel to be charged in accordance with billing rates
listed on the attached Personnel Schedule.
8.2.3 Cost of all employee benefits and taxes including but not limited to
workers' compensation, unemployment compensation, Social Security, health,
welfare, retirement and other fringe benefits as required by law, labor
agreements, or paid under the Contractor's standard personnel policy, insofar as
such costs are paid to employees of the Contractor who are included in the Cost
of the Work under Subparagraphs 8.2.1 and 8.2.2.
8.2.4 Reasonable transportation, travel, hotel and moving expenses of the
Contractor's personnel incurred in connection with the Work.
8.2.5 Cost of all materials, supplies and equipment incorporated in the
Work, including costs of inspection, testing, transportation, storage and
handling.
8.2.6 Payments made by the Contractor to Subcontractors for work performed under
this Agreement.
8.2.7 Fees and expenses for design services procured by the Contractor except as
provided by the A/E and compensated in Paragraph 7.2.
8.2.8 Cost, including transportation and maintenance of all materials, supplies,
equipment, temporary facilities and hand tools not owned by the workers that are
used or consumed in the performance of the Work, less salvage value; and cost
less salvage value on such items used, but not consumed that remain the property
of the Contractor.
8.2.9 Rental charges of all necessary machinery and equipment, exclusive of
hand tools owned by workers, used at the site of the Work, whether rented from
the Contractor or others, including installation, repair and replacement, dis-
mantling, removal, maintenance, transportation and delivery costs at rental
charges consistent with those prevailing in the area.
8.2.10 Cost of the premiums for all insurance and surety bonds which the
Contractor is required to procure or deems necessary.
8.2.11 Sales, use, gross receipts or other taxes, tariffs or duties related to
the Work for which the Contractor is liable.
9
8.2.12 Permits, fees, licenses, tests, royalties, damages for infringement of
patents and/or copyrights, including costs of defending related suits for which
the Contractor is not responsible as set forth in Paragraph 3.5, and deposits
lost for causes other than the Contractor's negligence.
8.2.13 Losses, expenses or damages to the extent not compensated by insurance or
otherwise, and the cost of corrective work during the Construction Phase and for
a period of one year following the date of Substantial Completion.
8.2.14 All costs associated with establishing, equipping, operating, maintaining
and demobilizing the field office.
8.2.15 Reproduction costs, photographs, cost of telegrams, facsimile
transmissions, long distance telephone calls, data processing services, postage,
express delivery charges, telephone service at the site and reasonable xxxxx
cash expenses at the field office.
8.2.16 All water, power and fuel costs necessary for the Work.
8.2.17 Cost of removal of all nonhazardous substances, debris and waste
materials.
8.2.18 Costs incurred due to an emergency affecting the safety of persons
and/or property.
8.2.19 Legal, mediation and arbitration fees and costs, other than those
arising from disputes between the Owner and Contractor, reasonably and properly
resulting from the Contractor's performance of the Work.
8.2.20 All costs directly incurred in the performance of the Work or in
connection with the Project, and not included in the Contractor's Fee as set
forth in Article 7, which are reasonably inferable from the Contract Documents
as necessary to produce the intended results.
8.3 DISCOUNTS All discounts for prompt payment shall accrue to the Owner to the
extent such payments are made directly by the Owner. To the extent payments are
made with funds of the Contractor, all cash discounts shall accrue to the
Contractor. All trade discounts, rebates and refunds, and all returns from sale
of surplus materials and equipment, shall be credited to the Cost of the Work.
ARTICLE 9
CHANGES IN THE WORK
Changes in the Work which are within the general scope of this Agreement may be
accomplished by Change Order without invalidating this Agreement.
9.1 CHANGE ORDERS A Change Order is a written instrument, issued after execution
of this Agreement, signed by the Owner and Contractor stating their agreement
upon a change and the adjustment in the GMP, compensation for Design Phase
Services, the Contractor's Fee and/or the date of Substantial Completion. Each
adjustment in the GMP resulting from a Change Order shall clearly separate the
amount attributable to compensation for Design Phase Services, other Cost of the
Work and the Contractor's Fee.
9.2 DETERMINATION OF COST An increase or decrease in the GMP resulting from a
change in the Work shall be determined by one or more of the following methods:
.1 unit prices set forth in this Agreement or as subsequently agreed;
.2 a mutually accepted, itemized lump sum;
.3 costs determined as defined in Paragraph 7.2 and Article 8 and a
mutually acceptable Contractor's Fee as determined in Subparagraph
7.5.1; or
.4 if an increase or decrease cannot be agreed to as set forth in
Subparagraphs 9.2.1 through 9.2.3 and the Owner issues a written order for
the Contractor to proceed with the change, the cost of the change in the
Work shall be determined by the reasonable expense and savings of the
performance of the Work resulting from the change. If there is a net
increase in the GMP, the Contractor's Fee shall be adjusted as set forth in
Subparagraph 7.5.1. In case of a net decrease in the GMP, the Contractor's
Fee shall not be adjusted. The Contractor shall maintain a documented,
itemized accounting evidencing the expenses and savings.
9.3 NO OBLIGATION TO PERFORM The Contractor shall not be obligated to perform
changed Work until a Change Order has been executed by the Owner and Contractor,
except as provided in Subparagraph 9.2.4.
9.4 ADJUSTMENT OF UNIT PRICES If a proposed Change Order alters original
quantities to a degree that application of previously agreed to unit prices
would be inequitable to either the Owner or the Contractor, the unit prices and
the GMP shall be equitably adjusted.
9.5 UNKNOWN CONDITIONS If in the performance of the Work the Contractor finds
latent, concealed or subsurface physical conditions which differ from the
conditions the Contractor reasonably anticipated, or if physical conditions are
materially different from those normally encountered and generally recognized as
inherent in the kind of work provided for in this Agreement, then the GMP
compensation for Design Phase Services, the Contractor's Fee, and/or the date of
Substantial Completion shall be equitably adjusted by Change Order within a
reasonable time after the conditions are first observed.
9.6 CLAIMS FOR ADDITIONAL COST OR TIME For any claim for an increase in the GMP,
compensation for Design Phase Services, the Contractor's Fee and/or an extension
in the date of Substantial Completion, the Contractor shall give the Owner
written notice of the claim within twenty-one (21) days after the occurrence
giving rise to the claim or within twenty-one (21) days after the Contractor
first recognizes the condition giving rise to the claim, whichever is later.
Except in an emergency, notice shall be given before proceeding with the Work.
Claims for design and estimating costs incurred in connection with possible
changes requested by the Owner, but which do not proceed, shall be made within
twenty-one (21) days after the decision is made not to proceed. Any change in
the GMP, compensation for Design Phase Services, the Contractor's Fee, and/or
date of Substantial Completion resulting from such claim shall be authorized by
Change Order.
10
9.7 EMERGENCIES In any emergency affecting the safety of persons and/or
property, the Contractor shall act, at its discretion, to prevent threatened
damage, injury or loss. Any change in the GMP, compensation for Design Phase
Services, the Contractor's Fee and/or extension of the date of Substantial
Completion on account of emergency work shall be determined as provided in this
Article.
ARTICLE 10
PAYMENT FOR CONSTRUCTION PHASE SERVICES
10.1 PROGRESS PAYMENTS
10.1.1 On the last day of each month after the Construction Phase has
commenced, the Contractor shall submit to the Owner an Application for Payment
consisting of the Cost of the Work performed up to the last day of the current
month, including the cost of material stored on the site or at other locations
approved by the Owner, along with a proportionate share of the Contractor's Fee.
Prior to submission of the next Application for Payment, the Contractor shall
furnish to the Owner a statement accounting for the disbursement of funds
received under the previous Application. The extent of such statement shall be
as agreed upon between the Owner and Contractor.
10.1.2 Within twenty (20) days after receipt of each monthly Application for
Payment, the Owner shall pay directly to the Contractor the appropriate amount
for which Application for Payment is made, less amounts previously paid by the
Owner.
10.1.3 If the Owner fails to pay the Contractor at the time payment of any
amount becomes due, then the Contractor may, at any time thereafter, upon
serving written notice that the Work will be stopped within five (5) days after
receipt of the notice by the Owner, and after such five (5) day period, stop the
Work until payment of the amount owing has been received.
10.1.4 Payments due but unpaid shall bear interest at the rate the Owner is
paying on its construction loan or at the current "prime rate" whichever is
higher.
10.1.5 The Contractor warrants and guarantees that title to all Work, materials
and equipment covered by an Application for Payment, whether incorporated in the
Project or not, will pass to the Owner upon receipt of such payment by the
Contractor free and clear of all liens, claims, security interests or
encumbrances, hereinafter referred to as "liens."
10.1.6 The Owner's progress payment, occupancy or use of the Project, whether in
whole or in part, shall not be deemed an acceptance of any Work not conforming
to the requirements of the Contract Documents.
10.1.7 Upon Substantial Completion of the Work, the Owner shall pay the
Contractor the unpaid balance of the Cost of the Work, compensation for Design
Phase Services and the Contractor's Fee, less a sum equal to the Contractor's
estimated cost of completing any unfinished items as agreed to between the Owner
and Contractor as to extent and time for completion. The Owner thereafter shall
pay the Contractor monthly the amount retained for unfinished items as each item
is completed.
10.2 FINAL PAYMENT
10.2.1 Final payment, consisting of the unpaid balance of the Cost of the Work,
compensation for Design Phase Services and the Contractor's Fee, less the
initial payment made under Paragraph 7.1, shall be due and payable when the Work
is fully completed. Before issuance of final payment, the Owner may request
satisfactory evidence that all payrolls, materials bills and other indebtedness
connected with the Work have been paid or otherwise satisfied.
10.2.2 In making final payment the Owner waives all claims except for:
.1 outstanding liens;
.2 improper workmanship or defective materials appearing within one year
after the date of Substantial Completion;
.3 Work not in conformance with the Contract Documents; and
.4 terms of any special warranties required by the Contract Documents.
10.2.3 In accepting final payment, the Contractor waives all claims except those
previously made in writing and which remain unsettled.
ARTICLE 11
INDEMNITY, INSURANCE AND WAIVER OF SUBROGATION
11.1 INDEMNITY
11.1.1 To the fullest extent permitted by law, the Contractor shall defend,
indemnify and hold the Owner harmless from all claims for bodily injury and
property damage (other than to the Work itself and other property insured under
Paragraph 11.5), including resulting loss of use that may arise from the
performance of the Work, to the extent of the negligence attributed to such acts
or omissions by the Contractor, Subcontractors or anyone employed directly or
indirectly by any of them or by anyone for whose acts any of them may be liable.
The Contractor shall not be required to defend, indemnify or hold harmless the
Owner for any acts, omissions or negligence of the Owner, Owner's employees,
agents or separate contractors.
11.1.2 The Owner shall cause any other contractor who may have a contract with
the Owner to perform work in the areas where Work will be performed under this
Agreement, to agree to indemnify the Contractor, Subcontractors or anyone
employed directly or indirectly by any of them or anyone for whose acts any of
them may be liable and hold them harmless from all claims for bodily injury and
property damage, other than property insured under Paragraph 11.5, that may
arise from that contractor's operations. Such provisions shall be in a form
satisfactory to the Contractor.
11
11.2 CONTRACTOR'S LIABILITY INSURANCE
11.2.1 The Contractor shall obtain and maintain insurance coverage for the
following claims which may arise out of the performance of this Agreement,
whether resulting from the Contractor's operations or by the operations of any
Subcontractor, anyone in the employ of any of them, or by an individual or
entity for whose acts they may be liable:
.1 workers' compensation, disability and other employee benefit claims
under acts applicable to the Work;
.2 under applicable employers liability law, bodily injury, occupational
sickness, disease or death claims of the Contractor's employees;
.3 bodily injury, sickness, disease or death claims for damages to persons
not employed by the Contractor;
.4 usual personal injury liability claims for damages directly or
indirectly related to the person's employment by the Contractor or for
damages to any other person;
.5 damage to or destruction of tangible property, including resulting loss
of use, claims for property other than the Work itself and other property
insured under Paragraph 11.5;
.6 bodily injury, death or property damage claims resulting from motor
vehicle liability in the use, maintenance or ownership of any motor
vehicle; and
.7 contractual liability claims involving the Contractor's obligations
under Subparagraph 11.1.1.
11.2.2 The Contractor's Commercial General and Automobile Liability Insurance as
required by Subparagraph 11.2.1 shall be written for not less than the following
limits of liability:
.1 Commercial General Liability Insurance
a. Each Occurrence Limit $1,000,000
b. General Aggregate $2,000,000
c. Products/Completed
Operations Aggregate $1,000,000
d. Personal and Advertising
Injury Limit $1,000,000
.2 Comprehensive Automobile Liability Insurance
a. Combined Single Limit
Bodily Injury and
Property Damage $1,000,000
Each Occurrence
or
b. Bodily Injury $---------
Each Person
$---------
Each Occurrence
c. Property Damage $---------
Each Occurrence
.3 Umbrella Liability Coverage $20,000,000
11.2.3 Commercial General Liability Insurance may be arranged under a single
policy for the full limits required or by a combination of underlying policies
and an Excess or Umbrella Liability policy.
11.2.4 The policies shall contain a provision that coverage will not be
cancelled or not renewed until at least thirty (30) days' prior written notice
has been given to the Owner. Certificates of insurance showing required coverage
to be in force shall be filed with the Owner prior to commencement of the Work.
11.2.5 Products and Completed Operations insurance shall be maintained for a
minimum period of at least 5 year(s) after either ninety (90) days following the
date of Substantial Completion or final payment, whichever is earlier.
11.3 PROFESSIONAL LIABILITY INSURANCE The Architect/Engineer's professional
liability insurance for claims arising from the negligent performance of
professional services under this Agreement shall be written for not less than
$1,000,000 per claim and in the aggregate with a deductible not to exceed
$2,000,000. These requirements shall be continued in effect for 3 year(s) after
the date of Substantial Completion. If the Architect/Engineer retains
consultants for a portion of the design, their professional liability insurance
coverage, including deductible amounts, shall be set forth in Article 14 of this
Agreement.
11.4 OWNER'S LIABILITY INSURANCE The Owner shall be responsible for obtaining
and maintaining its own liability insurance. Insurance for claims arising out of
the performance of this Agreement may be purchased and maintained at the Owner's
discretion.
11.5 INSURANCE TO PROTECT PROJECT
11.5.1 The Owner shall obtain and maintain property insurance in a form
acceptable to the Contractor upon the entire Project for the full cost of
replacement at the time of any loss. This insurance shall include as named
insureds the Owner, Contractor, Architect/Engineer, Subcontractors and
Subsubcontractors. This insurance shall insure against loss from the perils of
fire and extended coverage, and shall include "all risk" insurance for physical
loss or damage including without duplication of coverage at least: theft,
vandalism, malicious mischief, transit, collapse, falsework, temporary
buildings, debris removal, flood, earthquake, testing, and damage resulting from
defective design, workmanship or material. The Owner shall increase limits of
coverage, if necessary, to reflect estimated replacement cost. The Owner shall
be responsible for any co-insurance penalties or deductibles.
11.5.2 If the Owner occupies or uses a portion of the Project prior to its
Substantial Completion, such occupancy or use shall not commence prior to a time
mutually agreed to by the Owner and the Contractor and to which the insurance
company or companies providing the property insurance have consented by
endorsing the policy or policies. This insurance shall not be cancelled or
lapsed on account of partial occupancy. Consent of the Contractor to such early
occupancy or use shall not be unreasonably withheld.
11.5.3 The Owner shall obtain and maintain boiler and machinery insurance as
necessary. The interests of the Owner, Contractor, Architect/Engineer,
Subcontractors and Subsubcontractors shall be protected under this coverage.
12
11.5.4 The Owner shall purchase and maintain insurance to protect the Owner,
Contractor, Architect/Engineer, Subcontractors and Subsubcontractors against
loss of use of Owner's property due to those perils insured pursuant to
Paragraph 11.5. Such policy will provide coverage for expediting expenses
of materials, continuing overhead of the Owner and the Contractor,
Architect/Engineer, Subcontractors and Subsubcontractors, necessary labor
expense including overtime, loss of income by the Owner and other determined
exposures. Exposures of the Owner, Contractor, Architect/Engineer,
Subcontractors and Subsubcontractors, shall be determined by mutual agreement
with separate limits of coverage fixed for each item.
11.5.5 Upon the Contractor's request, the Owner shall provide the Contractor
with a copy of all policies before an exposure to loss may occur. Copies of any
subsequent endorsements shall be furnished to the Contractor. The Contractor
shall be given thirty (30) days' notice of cancellation, non-renewal, or any
endorsements restricting or reducing coverage. The Owner shall give written
notice to the Contractor before commencement of the Work if the Owner will not
be obtaining property insurance. In that case, the Contractor may obtain
insurance in order to protect its interest in the Work as well as the interest
of Architect/Engineer, Subcontractors and Subsubcontractors in the Work. The
cost of this insurance shall be a Cost of the Work pursuant to Article 8, and
the GMP shall be increased by Change Order. It the Contractor is damaged by
failure of the Owner to purchase or maintain property insurance or to so notify
the Contractor, the Owner shall bear all reasonable costs incurred by the
Contractor arising from the damage.
11.6 PROPERTY INSURANCE LOSS ADJUSTMENT
11.6.1 Any insured loss shall be adjusted with the Owner and the Contractor and
made payable to the Owner and Contractor as trustees for the insureds, as their
interests may appear, subject to any applicable mortgagee clause.
11.6.2 Upon the occurrence of an insured loss, monies received will be deposited
in a separate account and the trustees shall make distribution in accordance
with the agreement of the parties in interest, or in the absence of such
agreement, in accordance with an arbitration award pursuant to Article 13. If
the trustees are unable to agree between themselves on the settlement of the
loss, such dispute shall also be submitted for resolution pursuant to
Article 13.
11.7 WAIVER OF SUBROGATION
11.7.1 The Owner and Contractor waive all rights against each other, the
Architect/Engineer, and any of their respective employees, agents, consultants,
subcontractors and subsubcontractors for damages caused by risks covered by
insurance provided in Paragraph 11.5 to the extent they are covered by that
insurance, except such rights as they may have to the proceeds of such insurance
held by the Owner and Contractor as trustees. The Contractor shall require
similar waivers from the Architect/Engineer and all Subcontractors, and shall
require each of them to include similar waivers in their subsubcontracts and
consulting agreements.
11.7.2 The Owner waives subrogation against the Contractor, Architect/Engineer,
Subcontractors and Subsubcontractors on all property and consequential loss
policies carried by the Owner on adjacent properties and under property and
consequential loss policies purchased for the Project after its completion.
11.7.3 If the policies of insurance referred to in this Paragraph require an
endorsement to provide for continued coverage where there is a waiver of
subrogation, the owners of such policies will cause them to be so endorsed.
ARTICLE 12
TERMINATION OF THE AGREEMENT AND OWNER'S
RIGHT TO PERFORM CONTRACTOR'S
RESPONSIBILITIES
12.1 TERMINATION BY THE CONTRACTOR
12.1.1 Upon seven (7) days' written notice to the Owner, the Contractor may
terminate this Agreement for any of the following reasons:
.1 if the Work has been stopped for a thirty (30) day period
a. under court order or order of other governmental authorities having
jurisdiction;
b. as a result of the declaration of a national emergency or other
governmental act during which, through no act or fault of the
Contractor, materials are not available; or
c. because of the Owner's failure to pay the Contractor in accordance
with this Agreement;
.2 if the Work is suspended by the Owner for sixty (60) days;
.3 if the Owner materially delays the Contractor in the performance of
the Work;
.4 if the Owner otherwise materially breaches this Agreement; or
.5 if the Owner fails to furnish reasonable evidence that sufficient
funds are available and committed for the entire cost of the Project in
accordance with Subparagraph 4.1.3 of this Agreement.
12.1.2 Upon termination by the Contractor in accordance with Subparagraph
12.1.1, the Contractor shall be entitled to recover from the Owner payment for
all Work executed and for any proven loss, cost or expense in connection with
the Work, plus all demobilization costs and reasonable damages. In addition, the
Contractor shall be paid an amount calculated as set forth either in
Subparagraph 12.3.1 or 12.3.2, depending on when the termination occurs, and
Subparagraphs 12.3.3 and 12.3.4.
12.2 OWNER'S RIGHT TO PERFORM CONTRACTOR'S OBLIGATIONS AND TERMINATION BY THE
OWNER FOR CAUSE
12.2.1 If the Contractor persistently fails to perform any of its obligations
under this Agreement, the Owner may, after seven (7) days' written notice,
during which period the Contractor fails to perform such obligation, undertake
to perform
13
such obligations. The GMP shall be reduced by the cost to the Owner of
performing such obligations.
12.2.2 Upon seven (7) days' written notice to the Contractor and the
Contractor's surety, if any, the Owner may terminate this Agreement for any of
the following reasons:
.1 if the Contractor persistently utilizes improper materials and/or
inadequately skilled workers;
.2 if the Contractor does not make proper payment to laborers, material
suppliers or Subcontractors;
.3 if the Contractor persistently fails to abide by the orders,
regulations, rules, ordinances or laws of governmental authorities having
jurisdiction; or
.4 if the Contractor otherwise materially breaches this Agreement.
If the Contractor fails to proceed to cure within the seven (7) days, the Owner,
without prejudice to any other right or remedy, may take possession of the site
and complete the Work utilizing any reasonable means. In this event, the
Contractor shall not have a right to further payment until the Work is
completed.
12.2.3 If the Contractor files a petition under the Bankruptcy Code, this
Agreement shall terminate if the Contractor or the Contractor's trustee rejects
the Agreement or, if there has been a default, the Contractor is unable to give
adequate assurance that the Contractor will perform as required by this
Agreement or otherwise is unable to comply with the requirements for assuming
this Agreement under the applicable provisions of the Bankruptcy Code.
12.2.4 In the event the Owner exercises its rights under Subparagraph 12.2.1 or
12.2.2, upon the request of the Contractor the Owner shall provide a detailed
accounting of the cost incurred by the Owner.
12.3 TERMINATION BY OWNER WITHOUT CAUSE If the Owner terminates this Agreement
other than as set forth in Paragraph 12.2, the Owner shall pay the Contractor
for all Work executed and for any proven loss, cost or expense in connection
with the Work, plus all demobilization costs. In addition, the Contractor shall
be paid an amount calculated as set forth below:
.1 If the Owner terminates this Agreement prior to commencement of the
Construction Phase, the Contractor shall be paid the balance of the
Contractor's Design Phase compensation as set forth in Subparagraph 7.2.2,
and 25% of the Contractor's Fee as set forth in Clause 7.3.1.2.
.2 If the Owner terminates this Agreement after commencement of the
Construction Phase, the Contractor shall be paid the balance of the
Contractor's Design Phase compensation as set forth in Subparagraph 7.2.2
and 100% of the Contractor's Fee as set forth in Clause 7.3.1.2.
.3 In either event, the initial payment as provided in Paragraph 7.1 shall
be credited to the Owner's account at the time of termination.
.4 The Owner shall also pay to the Contractor fair compensation, either by
purchase or rental at the election of the Owner, for any equipment
retained. The Owner shall assume and become liable for obligations,
commitments and unsettled claims that the Contractor has previously
undertaken or incurred in good faith in connection with the Work or as a
result of the termination of this Agreement. As a condition of receiving
the payments provided under this Article 12, the Contractor shall cooperate
with the Owner by taking all steps necessary to accomplish the legal
assignment of the Contractor's rights and benefits to the Owner, including
the execution and delivery of required papers.
12.4 SUSPENSION BY THE OWNER FOR CONVENIENCE
12.4.1 The Owner may order the Contractor in writing to suspend, delay or
interrupt all or any part of the Work without cause for such period of time as
the Owner may determine to be appropriate for its convenience.
12.4.2 Adjustments caused by suspension, delay or interruption shall be made for
increases in the GMP, compensation for Design Phase Services, the Contractor's
Fee and/or the date of Substantial Completion. No adjustment shall be made if
the Contractor is or otherwise would have been responsible for the suspension,
delay or interruption of the Work, or if another provision of this Agreement is
applied to render an equitable adjustment.
ARTICLE 13
DISPUTE RESOLUTION
13.1 INITIAL DISPUTE RESOLUTION If a dispute arises out of or relates to this
Agreement or its breach, the parties shall endeavor to settle the dispute first
through direct discussions. If the dispute cannot be settled through direct
discussions, the parties shall endeavor to settle the dispute by mediation under
the Construction Industry Mediation Rules of the American Arbitration
Association before recourse to arbitration. Issues to be mediated are subject to
the exceptions in Paragraph 13.2 for arbitration. The location of the mediation
shall be the location of the Project. Once one party files a request for
mediation with the other contracting party and with the American Arbitration
Association, the parties agree to conclude such mediation within sixty (60) days
of filing of the request.
13.2 AGREEMENT TO ARBITRATE Any controversy or claim arising out of or relating
to this Agreement or its breach not resolved by mediation, except for claims
which have been waived by the making or acceptance of final payment, shall be
decided by arbitration in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association then in effect unless the parties
mutually agree otherwise. Notwithstanding Paragraph 14.2, this agreement to
arbitrate shall be governed by the Federal Arbitration Act.
13.3 NOTICE OF DEMAND A written demand for arbitration shall be filed with the
American Arbitration Association and the other party to this Agreement within a
reasonable time after the dispute or claim has arisen, but in no event after the
applicable statute of limitations for a legal or equitable proceeding would
have run.
14
13.4 AWARD The arbitration award shall be final. Judgment upon the award may be
confirmed in any court having jurisdiction.
13.5 WORK CONTINUANCE AND PAYMENT Unless otherwise agreed in writing, the
Contractor shall continue the Work and maintain the approved schedules during
any arbitration proceedings. If the Contractor continues to perform, the Owner
shall continue to make payments in accordance with this Agreement.
13.6 [Intentionally Omitted]
13.7 COST OF DISPUTE RESOLUTION The prevailing party in any dispute arising out
of or relating to this Agreement or its breach that is resolved by arbitration
or litigation shall be entitled to recover from the other party reasonable
attorney's fees, costs and expenses incurred by the prevailing party in
connection with such arbitration or litigation.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 ASSIGNMENT Neither the Owner nor the Contractor shall assign their interest
in this Agreement without the written consent of the other except as to the
assignment of proceeds.
14.2 GOVERNING LAW This Agreement shall be governed by the law in effect at the
location of the Project.
14.3 SEVERABILITY The partial or complete invalidity of any one or more
provisions of this Agreement shall not affect the validity or continuing force
and effect of any other provlslon.
14.4 NO WAIVER OF PERFORMANCE The failure of either party to insist, in any one
or more instances, on the performance of any of the terms, covenants or
conditions of this Agreement, or to exercise any of its rights, shall not be
construed as a waiver or relinquishment of such term, covenant, condition or
right with respect to further performance.
14.5 TITLES The title given to the Articles of this Agreement are for ease of
reference only and shall not be relied upon or cited for any other purpose.
14.6 OTHER PROVISIONS
ARTICLE 15
EXISTING CONTRACT DOCUMENTS
The Contract Documents in existence at the time of execution of this Agreement
are as follows:
This Agreement is entered into as of the date entered in Article 1.
OWNER: NEOSE TECHNOLOGIES, INC.
----------------------------
ATTEST: /s/ Xxxxxxx Xxxx BY: /s/ P. Xxxxxxxx Xxxx
-------------------------- -------------------------------
PRINT NAME: P. Xxxxxxxx Xxxx
-----------------------
PRINT TITLE: PRESIDENT
----------------------
CONTRACTOR: XXXXX & LEIGHTON, INC.
-----------------------
ATTEST: /s/ Xxxxxx X. Xxxxxxx BY: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------- -------------------------------
PRINT NAME: XXXXX X. XXXXXXX, XX.
-----------------------
PRINT TITLE: PRESIDENT
----------------------
15
