*PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
AGREEMENT
BETWEEN OWNER AND DESIGN/BUILDER
ON THE BASIS OF A STIPULATED PRICE
THIS AGREEMENT is made and entered into this 25th day of September , 2006 by and
between Southwest Iowa Renewable Energy, LLC an Iowa company (hereinafter called
OWNER) and ICM, Inc., a Kansas corporation (hereinafter called DESIGN/BUILDER).
OWNER and DESIGN/BUILDER, in consideration of the mutual covenants hereinafter
set forth, agree as follows:
Article 1. THE PROJECT AND WORK.
1.01. DESIGN/BUILDER shall complete all Work for the Project as specified or
indicated in the Contract Documents. The Project is generally described as the
design and construction of a dry mill fuel-grade ethanol plant to be located in
or near Council Bluffs, Iowa, as described in more detail in Exhibit B to this
Agreement. The Work includes such engineering, labor, materials, and equipment
to design, construct, startup and achieve guaranteed performance criteria of a
dry mill ethanol plant capable of producing no less than one hundred ten (110)
million gallons per year of denatured fuel-grade ethanol and no less than Three
Hundred Forty Eight Thousand Tons(338,000) of dry distiller's grains as set
forth in the Contract Documents. A more detailed described of the Work is set
forth in the attached Exhibits (other than OWNER's responsibilities set forth
therein).
Article 2. CONTRACT TIMES.
2.01. Days to Achieve Substantial Completion and Final Payment. The Work will be
Substantially Completed within * days after the date when the Contract Times
commence to run as provided in paragraph 2.01.A of the General Conditions, and
completed and ready for final payment in accordance with paragraph 13.08 of the
General Conditions within One Hundred Eighty (180) days after Substantial
Completion, unless otherwise provided in the Contract Documents.
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Article 3. CONTRACT PRICE.
3.01. OWNER shall pay DESIGN/BUILDER the Contract Price for completion of the
Work in accordance with the Contract Documents. The Contract Price may be
adjusted as provided by the General Conditions. For all Work, OWNER shall pay to
DESIGN/BUILDER a price of One Hundred Eighteen Million Dollars ($118,000,000)
(the "Contract Price").
3.02. The Work to be performed by DESIGN/BUILDER shall not include those items
designated as OWNER's responsibilities in the Contract Documents. Those items
designated as OWNER's
-1-
responsibilities in the Contract Documents shall include all design,
procurement, fabrication, installation and start-up associated with such items.
3.03 DESIGN/BUILDER shall provide to OWNER the training described in Exhibit G.
3.04 In accordance with paragraph 5.02 of the General Conditions, DESIGN/BUILDER
agrees to maintain the insurance coverages, limits, and deductibles set forth in
Exhibit H.
Article 4. PAYMENT PROCEDURES
4.01 DESIGN/BUILDER shall submit and OWNER will process Applications for Payment
in accordance with Article 13 of the General Conditions and Sections 5.01.A.
through C. below.
A. Down Payment. OWNER shall make a down payment of 10% of CONTRACT
PRICE to DESIGN/BUILDER, which shall be applied toward and credited to 10% of
each progress payment. The amount of the down payment due hereunder is Eleven
Million Eight Hundred Thousand Dollars ($11,800,000). DESIGN/BUILDER
acknowledges receipt of the amount of Two Million Dollars ($2,000,000)
previously paid by Owner with the delivery of the letter of intent between the
parties. This amount has been credited toward the amount of the down payment. An
additional amount of Two Million Dollars ($2,000,000) shall be due and payable
on the date the OWNER breaks escrow or 90 days after the date of this agreement,
whichever comes first,, and upon receipt will be credited toward the amount of
the down payment. Upon delivery of the Notice to Proceed, OWNER shall pay the
remaining balance of such down payment ($7,800,000) to DESIGN/BUILDER.
B. Progress Payments; Retainage. OWNER shall make progress payments on
account of the Contract Price on the basis of DESIGN/BUILDER's Applications for
Payment, as provided in this Section 4.01.B. Progress payments shall be due and
payable in accordance with 13.04 of the General Conditions. All such payments
will be measured by the acceptable Schedule of Values established under
paragraph 2.03.A of the General Conditions.
1. Prior to Substantial Completion, such progress payments will be made
in an amount equal to the percentage indicated below, but, in each case, less
the aggregate of payments previously made and less such amounts as OWNER may
withhold in accordance with paragraph 13.04.B of the General Conditions.
a. Ninety-five percent (95%) of Work completed (with the balance being
retainage).
b. Ninety-five percent (95%) (with the balance being retainage) of the
cost of materials and equipment not incorporated in the Work (but delivered,
suitably stored and accompanied by documentation satisfactory to OWNER as
provided in paragraph 13.02.A of the General Conditions).
2. Upon Successful completion of the Performance Test or * days after
Substantial Completion, whichever comes first, payment will be made in an amount
sufficient to increase total payments to DESIGN/BUILDER to One Hundred percent
(100%) of the Contract Price, less (i) such amounts as OWNER may withhold in
accordance with paragraph 13.04.B of the General Conditions, (ii) amounts
mutually agreed by the parties for completion of Punch List Items, and (iii) *
Amounts withheld for Punch List Items shall be paid by OWNER to DESIGN/BUILDER
as such Work is completed.
-2-
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
3. Upon successful completion of the seven-day performance test
described in Exhibit A, OWNER shall pay DESIGN/BUILDER the *.
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
C. Final Payment. OWNER shall pay the remainder of the Contract Price,
if any, to DESIGN/BUILDER in accordance with paragraph 13.08 of the General
Conditions.
Article 5. INTEREST.
5.01. All monies not paid when due as provided in Article 13 of the General
Conditions shall bear interest at the rate of Eighteen percent (18%) per annum.
If it is determined that OWNER incorrectly withheld payment of any disputed
payment, then such payment shall bear interest from the date such payment would
have otherwise been due until the date actually paid to DESIGN/BUILDER.
Article 6. DESIGN/BUILDER'S REPRESENTATIONS.
6.01. DESIGN/BUILDER makes the following representations:
A. DESIGN/BUILDER has examined and carefully studied the Contract
Documents listed in Sections 7.01.A through C, and, to the extent prepared (but
not yet approved by OWNER) prior to the Effective Date, the documents described
in Section 7.01.D.3 and .4.
B. DESIGN/BUILDER is familiar with and is satisfied as to all federal,
state and local Laws and Regulations in existence on the Effective Date that may
affect cost, progress, performance, furnishing, and completion of the Work in
accordance with the Contract Documents.
C. DESIGN/BUILDER is familiar with the work to be performed by OWNER
and others at the Site that relates to the Work as indicated in the Contract
Documents.
D. DESIGN/BUILDER has correlated the information known to
DESIGN/BUILDER, reports and drawings identified in the Contract Documents, and
all additional examinations, investigations, tests, studies and data with the
Contract Documents.
E. DESIGN/BUILDER has given OWNER written notice of all conflicts,
errors, ambiguities or discrepancies that DESIGN/BUILDER has discovered in the
Contract Documents and the written resolution thereof by OWNER is acceptable to
DESIGN/BUILDER, and the Contract Documents are sufficient to indicate and convey
understanding of all terms and conditions for performance and furnishing of the
Work.
F. THE completed Project will satisfy each of the Performance Criteria
set forth on Exhibit A.
Article 7. CONTRACT DOCUMENTS.
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7.01. The Contract Documents which comprise the entire agreement between OWNER
and DESIGN/BUILDER concerning the Work consist of the following:
A. This Agreement (pages 1 to 5, inclusive).
B. Exhibits to this Agreement (A to M, inclusive).
C. General Conditions of the Contract Between Owner and Design/Builder
(pages 1 to 35, inclusive).
D. The following which may be delivered, prepared, or issued after the
Effective Date of this Agreement and are not attached hereto.
1. Written Notice to Proceed, in the form substantially similar to
Exhibit M attached hereto.
2. All Written Amendments and other documents amending, modifying or
supplementing the Contract Documents pursuant to paragraph 3.03.A of the General
Conditions.
3. Specifications as defined in paragraph 1.01.A.31 of the General
Conditions.
4. Drawings as defined in paragraph 1.01.A.15 of the General
Conditions.
7.02. There are no Contract Documents other than those listed above in this
Article 7. The Contract Documents may only be amended, modified or supplemented
as provided in paragraph 3.03.A of the General Conditions.
Article 8. MISCELLANEOUS.
8.01. The attached General Conditions of the Contract between Owner and
Design/Builder are referred to herein as the General Conditions.
8.02. Terms used in this Agreement which are defined in Article 1 of the General
Conditions will have the meanings indicated therein.
8.03. No assignment by a party hereto of any rights under or interests in the
Contract Documents will be binding on another party hereto without the written
consent of the party sought to be bound, which consent shall not be unreasonably
withheld; and, specifically but without limitation, moneys that may become due
and moneys that are due may not be assigned without such consent (except to the
extent that the effect of this restriction may be limited by law), and, unless
specifically stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or
responsibility under the Contract Documents.
8.04. OWNER and DESIGN/BUILDER each binds itself, its successors, assigns and
legal representatives to the other party hereto, its successors, permitted
assigns and legal representatives in respect to all covenants, agreements and
obligations contained in the Contract Documents.
8.05. Any provision or part of the Contract Documents held to be void or
unenforceable under any Law or Regulation shall be deemed stricken, and all
remaining provisions shall continue to be valid and binding upon OWNER and
DESIGN/BUILDER, who agree that the Contract Documents shall be
-4-
reformed to replace such stricken provision or part thereof with a valid and
enforceable provision that comes as close as possible to expressing the
intention of the stricken provision.
8.06. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which shall constitute one
agreement that is binding upon all of the parties hereto, notwithstanding that
all parties are not signatories to the same counterpart. Facsimile signatures of
the parties hereto shall be binding.
8.07. This Agreement will be effective on date first written above. Within One
Hundred Twenty (120) days after such effective date, OWNER shall provide to
DESIGN/BUILDER the Notice to Proceed and evidence, acceptable to DESIGN/BUILDER,
of funding for the Project. If DESIGN/BUILDER does not receive a valid Notice to
Proceed within such time, then the Contract Price referred to in Article 3 and
the Contract Times referred to in Article 2 shall be subject to modification
with such modifications in the Contract Price and Contract Times to be
negotiated in good faith by the parties. Acceptable evidence of funding for the
project is proof that the OWNER may distribute funds from its escrow account.
IN WITNESS WHEREOF, OWNER and DESIGN/BUILDER have signed this Agreement on the
date first written above.
OWNER: DESIGN/BUILDER: ICM, Inc.
------------------------------------
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx VanGriend
-------------------------------------- ----------------------------------
Title: /s/ Chairman Title: President/CEO
------------------------------------ -------------------------------
Addresses for giving notices and representatives:
Name: Southwest Iowa Renewable Energy, LLC Name: Xxxx XxxxxxXxxxxx
------------------------------------------ -----------------------------------
Title: Title: President/CEO
----------------------------------- -----------------------------------
Address: 0000 Xx. 00xx Xxx. XX Xxx 000 Address:310 X. Xxxxx Xxxxxx, Xxxxxxx, XX
---------------------------------- ----------------------------------------
Phone: 000-000-0000 Council Bluffs, IA Phone: 000-000-0000
------------------------------------ ----------------------------------
Facsimile: 712-366-0394 Facsimile: 000-000-0000
-------------------------------- ----------------------------------
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Exhibit A
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
Performance Criteria:
DESIGN/BUILDER represents and warrants to OWNER that the completed
Project will achieve each of the following performance criteria. After
DESIGN/BUILDER determines the Plant is ready for start-up, DESIGN/BUILDER, with
OWNER's labor forces, will start-up the Plant and conduct a seven-day
performance test to establish compliance with each of the performance criteria
except the atmospheric emissions. Compliance shall be measured simultaneously
for all criteria, and computed on the average over the seven-day performance
test. If the Project fails to reach any performance criterion, then
DESIGN/BUILDER shall (at no additional cost to OWNER) make such changes in
design, construction, or equipment as required to meet the criteria, and conduct
another seven day performance test. Upon successful completion of a seven-day
performance test, the Plant shall be considered to have achieved the performance
criteria listed below (other than the atmospheric emissions criteria) for
purposes of the foregoing representation and warranty of DESIGN/BUILDER.
Table 1 ethanol plant criteria -- 110MGY capacity
---------------------------- -------------------------- -------------------------- --------------------------
Criteria Specification Testing Statement Documentation
---------------------------- -------------------------- -------------------------- --------------------------
Plant Capacity - Operate at a rate of 110 Seven-day performance Concurrence of
fuel-grade ethanol million gallons per year test production records and a
of denatured fuel grade written report from
ethanol meeting the DESIGN/BUILDER.
specifications of ASTM
4806
---------------------------- -------------------------- -------------------------- --------------------------
Wet Distillers Grains OR Operate at rate of Determined by Concurrence of
Dry Distillers Grains 338,000 tons per year of calculation of mass flow production records and a
approx. 12% moisture DDG. from
centrifuge (s) in a
written analysis from
seven- day performance
DESIGN/BUILDER. test
---------------------------- -------------------------- -------------------------- --------------------------
Carbon Dioxide Approximately 295,000 Determined as a function Mass flow calculation by
tons per year of raw CO2 of fermented gallons in DESIGN/BUILDER.
gas. a seven-day performance
test.
---------------------------- -------------------------- -------------------------- --------------------------
Grain to Ethanol Not be less than 2.80 As determined by meter Concurrence of
Conversion ratio; denatured gallons readings during a production records and
Corn/Sorghum 56#/bu., 16% (2.67gallons seven-day performance written analysis by
or less moisture, zero undenatured) of ethanol test. DESIGN/BUILDER.
aflatoxin tolerance per bushel of ground
corn.
---------------------------- -------------------------- -------------------------- --------------------------
Electrical Energy .75 kWh per denatured As determined by meter Concurrence of
gallon of fuel grade readings during a production records and
ethanol. Does not seven-day performance written analysis by
include kWh performance
-6-
--------------------------- -------------------------- -------------------------- --------------------------
used to operate CO2 plant, test. DESIGN/BUILDER.
CO 2gas system, grain
handling system, Chiller
operation or DDG Load
out.
---------------------------- -------------------------- -------------------------- --------------------------
Natural Gas Consumption shall not As determined by meter Concurrence of
exceed 34,000 Btu per readings during a production records and
denatured gallon of seven-day performance written analysis by
fuel-grade ethanol. test. DESIGN/BUILDER.
---------------------------- -------------------------- -------------------------- --------------------------
Process Water Discharge zero gallons under Process discharge meter Plant control system
normal operations readings during seven reports from
day performance test DESIGN/BUILDER
---------------------------- -------------------------- -------------------------- --------------------------
Atmospheric Emissions As prescribed and As determined by written As determined by written
approved by the emissions compliance emissions compliance
applicable Department of report from a third report from a third
Environmental Quality or party mutually selected party mutually selected
similar agency for the by the parties by the parties
State in which the Plant confirming regulatory confirming regulatory
is located as of the compliance of the air compliance of the air
Effective Date of the emissions performance emissions performance
Agreement. tests tests
prescribed by the
prescribed by the applicable Department
applicable Department of Environmental Quality
of Environmental Quality or similar agency for
or similar agency for the State in which the
the State in which the Plant is located as of
Plant is located as of the Effective Date of
the Effective Date of the Agreement.
the Agreement.
---------------------------- -------------------------- -------------------------- --------------------------
OWNER's failure to materially comply with the operating procedures issued by
DESIGN/BUILDER shall void the foregoing performance criteria and all other
guarantees and warranties set forth in the Contract Documents.
OWNER understands that the startup of the plant requires resources and
cooperation of OWNER, vendors and other suppliers to the Project. DESIGN/BUILDER
disclaims any liability and OWNER indemnifies DESIGN/BUILDER for non-attainment
of the foregoing performance criteria directly or indirectly caused by the
material non-performance or negligence of third parties not retained by
DESIGN/BUILDER.
-7-
Exhibit B
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
General Project Scope:
Construct a no less than One Hundred Ten (110) million gallon per year (MGY) dry
mill fuel-grade ethanol plant located in or near Council Bluffs, Iowa. The plant
will grind approximately 39 million bushels per year to produce approximately
One Hundred (110) MGY of fuel-grade ethanol denatured with five percent gasoline
(or a similar product). The plant will also produce not less than 338,000 tons
per year of 12% moisture Dry Distillers Grains (DDG), and approximately 293,000
tons per year of raw carbon dioxide (CO2) gas.
OWNER to provide DESIGN/BUILDER a level site and which shall have a soil load
bearing capacity as specified in the attached table.
OWNER supplied grain system
will provide a consistent supply of grain to the rotary feeder above the
DESIGN/BUILDER supplied hammermills. .
Ground grain will be mixed in a slurry tank and routed through a working system
consisting of a hydroheater, xxxx tube, and flash tank. The mash will continue
through liquefaction and associated heat exchangers to fermentation.
Simultaneously, propagated yeast will be added to the mash as the fermenter is
filling. After batch fermentation is complete, the beer will be pumped to the
beer well and then to the beer column to vaporize the alcohol from the mash.
Alcohol streams are dehydrated in the distillation column, the side stripper and
the molecular sieve system. Two hundred proof alcohol is pumped to the tank farm
shift tanks and blended with five percent denaturant as the product is being
pumped into a final storage tank.
Corn mash from the beer stripper is dewatered by decanter type centrifuge. Wet
cake from the centrifuge is conveyed to the wetcake pad or drying system. Water
in the thin stillage can be evaporated and recycled by the Bio-Methanation
system.
DESIGN/BUILDER will provide its standard design for the fire pump house and
water treatment space. Any additional requirements will be an additional cost to
OWNER.
The design includes a compressed air system consisting of compressors, a
receiver tank, pre-filter, coalescing filter and air dryer.
The design also incorporates the use of a clean-in-place (CIP) system for
cleaning xxxx, fermentation, distillation, evaporation, centrifuges and other
systems. Fifty percent caustic soda is received by truck and stored in a tank.
The CIP system uses tanks for receiving, make-up, CIP return and CIP waste which
is fed to the methanator. The CIP system includes a CIP Tank, a 50% Caustic
tank, and a Waste CIP tank. A screen is used to remove the solids.
Under normal operating circumstances, the Plant will not have any wastewater
discharges that have been in contact with corn and sorghum mash, cleaning system
or contact process water. A bio-methanator manufactured by
DESIGN/BUILDER/Phoenix will reduce the organic acids in process water allowing
complete reuse within the Plant and is included in the Contract Price. The Plant
will
-8-
have blowdown discharges from the cooling tower, water softeners, and Reverse
Osmosis system. OWNER is responsible for all permits, purchase and installation
of pumps, waterline construction, sanitary sewer construction, necessary to
discharge the blowdown from the cooling tower, water softeners, and Reverse
Osmosis system.
Carbon Dioxide (CO2) is a co-product of the fermentation process. CO2 is allowed
under current Laws and Regulations to be vented to the atmosphere. Installation
of a plant or system to capture, clean and compress the CO2 is not included in
the Work. OWNER, at its cost, may add a blower, certain associated equipment and
a small amount of piping to move the CO2 from the fermenter to a collection
point for sale or further processing.
Most of the processes within the Plant will be computer controlled by a
Siemens/Xxxxx APACS distributed control system with graphical user interface and
three workstations all located in the plant control room, which is included in
the Contract Price. No workstation is provided for the administrative building
or any other location. It is estimated that the system will consist of 200
discrete inputs, 200 discreet outputs, 175 analog inputs and 120 analog outputs.
Programmable logic controllers (PLCs) will control certain process equipment.
The Work provided by DESIGN/BUILDER will meet specifications, criteria, and
allowances as provided in the Construction Permit and all other applicable Laws
and Regulations enacted as of the Effective Date.
-9-
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-10-
Exhibit C
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
Buildings and Structures by DESIGN/BUILDER:
Construction of buildings and structures, as listed in Table 2 and Table 3, is
included in the Contract Price.
Table 2 Ancillary Buildings and Structures by DESIGN/BUILDER
-------------------- ---------------------------- ----------------------- ------------------------------
Building Preliminary Addition Info
Type Dimensions
-------------------- ---------------------------- ----------------------- ------------------------------
MCC Buildings CMU block wall, insulated,
climate controlled
-------------------- ---------------------------- ----------------------- ------------------------------
Cooling Tower Xxxxxxx Fir Structure
Induced Draft Counter Flow
-------------------- ---------------------------- ----------------------- ------------------------------
-------------------- ---------------------------- ----------------------- ------------------------------
Wetcake Pad Cast-in-Place Concrete 80 X 120
Structure
-------------------- ---------------------------- ----------------------- ------------------------------
Table 3 Buildings and Structures by DESIGN/BUILDER
-------------------- ---------------------------- ----------------------- ------------------------------
Building Preliminary Addition Info
Type Dimensions
-------------------- ---------------------------- ----------------------- ------------------------------
Process Structural steel, steel Custom Includes laboratory, control
siding - Insulated room & offices, MCC room
-------------------- ---------------------------- ----------------------- ------------------------------
Energy Center Structural steel, steel Custom Includes centrifuge area,
siding - Insulated office, MCC room
-------------------- ---------------------------- ----------------------- ------------------------------
Evaporation Structural steel, steel Custom
siding - Insulated
-------------------- ---------------------------- ----------------------- ------------------------------
-------------------- ---------------------------- ----------------------- ------------------------------
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Exhibit D
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
Administration Building by OWNER:
The Contract Price does not include the cost of the following additional items:
Table 4 Administration Building
-------------------------- ----------------------------------------------
Description Additional Description Est. Amount
-------------------------- ----------------------------------------------
Administration Building By OWNER $400,000
-------------------------- ----------------------------------------------
Office Computer System By OWNER $25,000
-------------------------- ----------------------------------------------
Telephone System By OWNER $15,000
-------------------------- ---------------------------- -----------------
Office Copier & fax By OWNER $15,000
machine
-------------------------- ---------------------------- -----------------
Office Furniture By OWNER $20,000
-------------------------- ---------------------------- -----------------
-------------------------- ---------------------------- -----------------
Lab Equipment By OWNER $120,000
-------------------------- ---------------------------- -----------------
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Exhibit E
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
OWNER'S Required Permits and Services List:
OWNER shall provide all of the permits, authorizations and services, including
but not limited to:
1) Land and Grading - Land and Grading - OWNER shall provide the Site
near or in Council Bluffs, Iowa. OWNER shall obtain all legal
authority to use the Site for its intended purpose and perform
technical due diligence for DESIGN/BUILDER to perform including but
not limited to proper zoning approvals, elevation restrictions, soil
tests, and water tests. The Site shall be rough graded per
DESIGN/BUILDER specifications and be within six inches of final grade
including the rough grading for Site roadways. The Site soils shall be
modified as required to provide a minimum allowable soil bearing
pressure as specified in the attached table for all foundation
elements. The site soils shall be modified as required to provide a
minimum allowable soil bearing pressure of 4,500 pounds per square
foot in the fermenter area, 8,000 pounds per square foot in the grain
storage concrete silos area and 3,000 pounds per square foot for all
other foundation elements or per attached table. The soils beneath the
foundation elements shall not exceed the total or differential
settlements such that the Plant is unable to perform its intended
purpose. If the existing soil conditions are such that over-excavation
and re-compaction or pilings are required, OWNER will be responsible
for this work. OWNER is also responsible for any dewatering required
at the site during construction.
Other items to be provided by the OWNER include, but are not limited
to, the following: initial site survey (boundary and topographic) as
required by the design engineers, layout of the property corners
including two construction benchmarks, soil borings and subsequent
geotechnical report (the results of which are acceptable to
DESIGN/BUILDER and consistent with the specifications set forth
herein) describing recommendation for roads, foundations and if
required, soil stabilization/remediation, site engineering and
detailed drawings (to the extent not provided by DESIGN/BUILDER), land
disturbance permit, erosion control permit, site grading as described
above with minimum soil standards, placement and maintenance of
erosion control measures, access road from a city, county, state or
federal road designed to meet city or local county road standards
(provided that such road must contain a minimum of twelve (12) inches
of crushed rock with geo-fabric and compacted base), storm and
sanitary sewers, water main branches, to be within five (5) feet of
the designated building locations, roads as specified and designed for
the permanent elevations and effective depth, paving, "construction"
grading plan as drawn (including site retention pond), all site
seeding, landscaping, rock, plant water well and associated permit(s),
environmental monitoring, environmental monitoring equipment,
environmental testing for both air and water, chemicals, corn or other
feedstock, enzymes, a risk management plan, laboratory equipment
specified by DESIGN/BUILDER, and all start-up supplies, including, but
not limited to hoses, equipment labels, and other items specified by
DESIGN/BUILDER,
2) Roads - OWNER shall provide or have provided, an access road of
sufficient quality to withstand semi-truck traffic of 25,000+ annual
loads with weight of 80,000 lbs each.
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3) Air Quality Permit - A permit for construction shall be obtained from
the proper authorities prior to the issuance of the Notice to Proceed.
OWNER shall obtain an Operating Permit in timely manner to allow
startup of the Plant as scheduled by DESIGN/BUILDER.
4) Storm Water Runoff Permit - OWNER shall obtain the permanent
industrial storm water runoff permit. DESIGN/BUILDER shall obtain the
construction storm water runoff permit.
5) Natural Gas Supply and Service Agreement - Continuous supply of
natural gas of at least 1.9 Billion cubic feet per year, at a rate of
000 XXXxx per hour and at a minimum pressure of 60 psig at a location
specified by DESIGN/BUILDER . OWNER shall provide supply meter and
regulators to provide burner tip pressures as specified by
DESIGN/BUILDER. OWNER will be responsible for the design, procurement,
fabrication and installation of any and all equipment necessary to
deliver the gas to all locations specified by DESIGN/BUILDER.
6) Electrical Service - Continuous supply of 12,000 kVA, 12,400-volt
electrical energy or more to a point immediately adjacent to the site.
OWNER shall supply a high voltage switch and, if required, a
substation. OWNER shall supply metering as specified by the power
company. This electrical capacity will be sufficient to support the
operations of the Plant as specified by DESIGN/BUILDER. OWNER will be
responsible to design, provide, and install electricity connections to
all locations specified by DESIGN/BUILDER (including the high-voltage
permanent power loop, transformers and pads).
7) Water Supply and Service Agreement - For process (contact and
non-contact) and sanitary purposes, OWNER shall be responsible to pay
DESIGN/BUILDER in the form of a Change Order for the design,
procurement, fabrication and installation of all equipment for the
supply and treatment of fresh water specified by DESIGN/BUILDER to the
DESIGN/BUILDER specified locations. This might include reverse
osmosis, softening equipment, iron removal, sulfate removal, or other
items specified by DESIGN/BUILDER. OWNER shall authorize
DESIGN/BUILDER to perform this work at cost plus upon the execution of
this agreement. Any required water augmentation plan and all
associated fees, forms, permits and incidental requirements is the
responsibility of OWNER.
8) Wastewater Discharge Permit - For discharges of cooling tower
blowdown, water softening, and RO system blowdown under normal
operating procedures. Process wastewater discharges during emergency
failure of wastewater treatment plant to treat all process wastewater.
9) Railroad - OWNER shall design, procure, fabricate and install any
railroad track siding to the Site, at grades specified by
DESIGN/BUILDER, including all necessary earth work to properly locate
the track, preparation of the railroad track bed, and track, ties and
ballast to railroad company specifications and all required permits.
-14-
10) Regulatory Contingency - Until satisfactory atmospheric emissions
compliance, OWNER shall maintain a fund of no less than * to cover any
unforeseen governmental regulation changes implemented after the
Effective Date of the Agreement. This contingency is not part of the
Contract Price, and its use may be authorized only by agreement of
OWNER and DESIGN/BUILDER.
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
11) Road Paving - Prior to Substantial Completion, OWNER will be
responsible for paving of all roads.
12) BATF Application/Misc Permits - OWNER will be responsible for
completing, submitting and obtaining Bureau of Alcohol Tobacco and
Firearms permitting to produce fuel grade alcohol, tank farm permits,
discharge permits required by hydro testing the Plant, and an SPCC
Plan.
13) Office Equipment - With the exception of the DCS control systems,
OWNER will be responsible for office furnishings, computers and
software to run the day-to-day operations of the Plant.
14) Construction Power - OWNER will provide and pay for all electricity
needed during the Construction, including the permanent power loop
required by DESIGN/BUILDER, by contracting with DESIGN/BUILDER for the
installation of the same and which will be billed to OWNER as an
additional cost, and not part of, the Contract Price. Monthly
utilities bills will be billed directly to OWNER by the utility.
15) Fire water system - OWNER will provide and pay for by contracting with
the DESIGN/BUILDER in the form of a Change Order, the design,
procurement, fabrication and installation of the fire water system
including, without limitation: fire water pump station, fire water
loop with hydrants, deluge systems, fire alarm panels, smoke and heat
detection in any building or MCC room, as required by Laws and
Regulations and the insurance company(ies) which provide insurance
pursuant to the Contract Documents.
16) At least forty-five (45) days prior to Substantial Completion, OWNER
shall complete construction of an administration building at the Site
with all utilities connected and operating to such building.
17) Prior to start-up of the Plant, OWNER shall furnish to DESIGN/BUILDER
the following:
a) Fully executed copies of all permits required to operate the
Plant;
b) Fully executed Certificate of Substantial Completion; and
c) Preliminary Punchlist pursuant to paragraph 13.05 of the General
Conditions.
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In the event OWNER desires that DESIGN/BUILDER perform all or any part of the
foregoing obligations of OWNER, and DESIGN/BUILDER agrees to perform such
obligations, the Contract Price shall be increased by the amount determined
pursuant to paragraph 10.02 of the General Conditions unless otherwise agreed by
the parties.
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Exhibit F
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "License Agreement") is entered into and made
effective as of the 25th day of September , 2006 ("Effective Date") by and
between Southwest Iowa Renewable Energy, LLC an Iowa Corporation("OWNER"), and
ICM, Inc., a Kansas corporation ("ICM").
WHEREAS, OWNER and ICM have entered into that certain AGREEMENT BETWEEN
OWNER AND DESIGN/BUILDER ON THE BASIS OF A STIPULATED PRICE dated the 25th day
of September , 2006 (the "Contract"), under which ICM is to design and construct
a One Hundred Ten (110) million gallons per year ethanol plant for OWNER to be
located in or near Council Bluffs, Iowa (the "Plant");
WHEREAS, ICM will use proprietary technology and information of ICM in the
design and construction of the Plant; and
WHEREAS, OWNER desires from ICM, and ICM desires to grant to OWNER, a
license to use such proprietary technology and information in connection with
OWNER's ownership and operation of the Plant, all upon the terms and conditions
set forth herein;
NOW, THEREFORE, the parties, in consideration of the foregoing premises and
the mutual promises contained herein and for other good and valuable
consideration, receipt of which is hereby acknowledged, agree as follows:
1. Upon Substantial Completion of the Plant by ICM pursuant to the terms of
the Contract or, if later, payment by OWNER of all amounts due and owing to
ICM under the Contract, ICM grants to OWNER a perpetual limited license to
use the Proprietary Property (hereinafter defined) solely in connection
with the ownership, operation, maintenance and repair of the Plant, subject
to the limitations provided herein (the "Purpose").
2. The "Proprietary Property" means, without limitation, documents,
Operating Procedures (hereinafter defined), materials and other information
that are furnished by ICM to OWNER in connection with the Purpose whether
orally, visually, in writing, or by any other means, whether tangible or
intangible, directly or indirectly and in whatever form or medium
including, without limitation, the design, arrangement, configuration, and
specifications of (i) the combinations of distillation, evaporation, and
alcohol dehydration equipment (including, but not limited to, pumps,
vessels, tanks, heat exchangers, piping, valves and associated electronic
control equipment) and all documents supporting those combinations; (ii)
the combination of the distillers grain drying (DGD), and heat recovery
steam generation (HRSG) equipment (including, but not limited to, pumps,
vessels, tanks, heat exchangers, piping and associated electronic control
equipment) and all documents supporting those combinations; and (iii) the
computer system, known as the distributed control system (DCS and/or PLC)
(including, but not limited to, the software configuration, programming,
parameters, set points, alarm points, ranges, graphical interface, and
system hardware connections) and all documents supporting that system. The
"Operating Procedures" means, without limitation, the process equipment and
specifications manuals,
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standards of quality, service protocols, data collection methods,
construction specifications, training methods, engineering standards and
any other information prescribed by ICM from time to time concerning the
Purpose. Proprietary Property shall not include any information or
materials that OWNER can demonstrate by written documentation: (i) was
lawfully in the possession of OWNER prior to disclosure by ICM; (ii) was in
the public domain prior to disclosure by ICM; (iii) was disclosed to OWNER
by a third party having the legal right to possess and disclose such
information or materials; or (iv) after disclosure by ICM comes into the
public domain through no fault of OWNER or its members, directors,
officers, employees, agents, contractors, consultants or other
representatives (hereinafter collectively referred to as
"Representatives"). Information and materials shall not be deemed to be in
the public domain merely because such information is embraced by more
general disclosures in the public domain, and any combination of features
shall not be deemed to be within the foregoing exceptions merely because
individual features are in the public domain if the combination itself and
its principles of operation are not in the public domain.
3. OWNER shall not use the Proprietary Property for any purpose other than
the Purpose. OWNER shall not use the Proprietary Property in connection
with any expansion or enlargement of the Plant. Within * days of OWNER's
request to expand or enlarge the Plant, ICM and OWNER will meet to discuss
such expansion and will negotiate in good faith the Terms and Conditions of
such expansion (including a mutually agreeable schedule for such expansion)
on either a fixed price basis or a Time and Material basis with a fixed
License Fee. At OWNER's request, ICM will use commercially reasonable
efforts to schedule engineering for an expansion or enlargement of the
Plant within * of such request, and will negotiate in good faith the Terms
and Conditions of such expansion on either a fixed price basis or a Time
and Material basis with a fixed license fee. ICM and its Representatives
shall have the express right, at a reasonable time so not to interrupt
OWNER's operations, to enter upon the premises of the Plant to inspect the
Plant and its operation to ensure that OWNER is complying with the terms of
this License Agreement.
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
4. OWNER's failure to materially comply with the Operating Procedures shall
void all guarantees, representations and warranties, whether expressed or
implied, if any, that were given by ICM to OWNER in the Contract concerning
the performance of the Plant. OWNER agrees to indemnify, defend and hold
harmless ICM and ICM's Representatives from any and all losses, damages and
expenses including, without limitation, reasonable attorneys' fees
resulting from, relating to or arising out of OWNER's or its
Representatives' (i) failure to materially comply with the Operating
Procedures or, (ii) negligent use of the Proprietary Property.
5. Any and all modifications to the Proprietary Property by OWNER or its
Representatives shall be the property of ICM. OWNER shall promptly notify
ICM of any such modification and OWNER agrees to assign all of its right,
title and interest in such modification to ICM; provided, however, OWNER
shall retain the right, at no cost, to use such modification in connection
with the Purpose.
6. ICM has the exclusive right and interest in and to the Proprietary
Property and the goodwill associated therewith. OWNER will not, directly or
indirectly, contest ICM's ownership of the
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Proprietary Property. OWNER's use of the Proprietary Property does not give
OWNER any ownership interest or other interest in or to the Proprietary
Property except for the limited license granted to OWNER herein. Any
goodwill derived or created by the operation of the Plant and all financial
benefits derived from the operation of the Plant shall be the property of
the OWNER.
7. OWNER shall pay no license fee or royalty to ICM for OWNER's use of the
Proprietary Property pursuant to the limited license granted to OWNER, the
consideration for this limited license is included in the amounts payable
by OWNER to ICM for the construction of the Plant under the Contract.
8. OWNER may not assign the limited license granted herein, in whole or in
part, without the prior written consent of ICM, which will not be
unreasonably withheld or delayed. Prior to any assignment, OWNER shall
obtain from such assignee a written instrument, in form and substance
reasonably acceptable to ICM, agreeing to be bound by all the terms and
provisions of this License Agreement. Any assignment of this License
Agreement shall not release OWNER from (i) its duties and obligations
hereunder concerning the disclosure and use of the Proprietary Property, or
(ii) damages to ICM resulting from, or arising out of, a breach of such
duties or obligations by OWNER or its Representatives. ICM may assign its
right, title and interest in the Proprietary Property, in whole or part,
subject to the limited license granted herein.
9. The Proprietary Property is confidential and proprietary. OWNER shall
keep the Proprietary Property confidential and shall use all reasonable
efforts to maintain the Proprietary Property as secret and confidential for
the sole use of OWNER and its Representatives for the Purpose. OWNER shall
retain all Proprietary Property at its principal place of business and/or
the Plant. OWNER shall not at any time without ICM's prior written consent,
copy, duplicate, record, or otherwise reproduce the Proprietary Property,
in whole or in part, or otherwise make the same available to any
unauthorized person. OWNER shall not disclose the Proprietary Property
except to its Representatives who are directly involved with the Purpose,
and even then only to such extent as is necessary and essential for such
Representative's involvement. OWNER shall inform such Representatives of
the confidential and proprietary nature of such information and, if
requested by ICM, OWNER shall obtain from such Representative a written
instrument, in form and substance reasonably acceptable to ICM, agreeing to
be bound by all of the terms and provisions of this License Agreement.
OWNER shall make all reasonable efforts to safeguard the Proprietary
Property from disclosure by its Representatives to anyone other than
permitted hereby. OWNER shall notify ICM immediately upon discovery of any
unauthorized use or disclosure of the Proprietary Property, or any other
breach of this License Agreement by OWNER or its Representatives, and shall
cooperate with ICM in every reasonable way to help ICM regain possession of
the Proprietary Property and prevent its further unauthorized use or
disclosure. In the event that OWNER or its Representatives are required by
law to disclose the Proprietary Property, OWNER shall provide ICM with
prompt written notice of same so that ICM may seek a protective order or
other appropriate remedy. In the event that such protective order or other
appropriate remedy is not obtained, OWNER or its Representatives will
furnish only that portion of the Proprietary Property which in the
reasonable opinion of its or their legal counsel is legally required and
will exercise its reasonable efforts to obtain reliable assurance that the
Proprietary Property so disclosed will be accorded confidential treatment.
10. OWNER agrees to indemnify ICM for any and all damages (including,
without limitation, reasonable attorneys' fees) arising out of or resulting
from any unauthorized disclosure or use of the Proprietary Property by
OWNER or its Representatives. OWNER agrees that ICM would be irreparably
damaged by reason of a violation of the provisions contained herein and
that any
-19-
remedy at law for a breach of such provisions would be inadequate. OWNER
agrees that ICM shall be entitled to seek injunctive or other equitable
relief in a court of competent jurisdiction against OWNER or its
Representatives for any unauthorized disclosure or use of the Proprietary
Property without the necessity of proving actual monetary loss or posting
any bond. It is expressly understood that the remedy described herein shall
not be the exclusive remedy of ICM for any breach of such covenants, and
ICM shall be entitled to seek such other relief or remedy, at law or in
equity, to which it may be entitled as a consequence of any breach of such
duties or obligations.
11. The duties and obligations of OWNER under this License Agreement, and
all provisions relating to the enforcement of such duties and obligations
shall survive and remain in full force and effect notwithstanding any
termination or expiration of the Contract or this License Agreement.
12. ICM may terminate the limited license granted to OWNER herein upon
written notice to OWNER if OWNER willfully or wantonly uses the Proprietary
Property for any purpose, or discloses the Proprietary Property to anyone,
other than permitted herein. Upon termination of the license, OWNER shall
cease using the Proprietary Property for any purpose (including the
Purpose) and, upon request by ICM, shall promptly return to ICM all
documents or other materials in OWNER's or its Representatives' possession
that contain Proprietary Property in whatever format, whether written or
electronic, including any and all copies or reproductions of the
Proprietary Property. OWNER shall permanently delete all such Proprietary
Property from its computer hard drives and any other electronic storage
medium (including any backup or archive system). OWNER shall deliver to ICM
a written certificate which certifies that all electronic copies or
reproductions of the Proprietary Property have been permanently deleted.
13. ICM represents and warrants that, as of the date first above written,
ICM has not received notice of any claim against ICM and/or one or more of
its customers under which a third-party claims the Proprietary Property
infringes any rights under patents, trade secrets, copyright or other
intellectual property rights of such third-party. ICM shall defend,
indemnify and hold harmless OWNER from and against any and all claims
arising out of or resulting from the infringement of any rights under
patents, trade secrets, copyrights or other intellectual property rights in
respect to OWNER's use of the Proprietary Property for the Purpose in
accordance with this License Agreement. ICM shall, at its sole expense,
have the right to defend against any such claim. OWNER shall promptly
notify ICM upon becoming aware of any such claim. ICM, in order to avoid
any such claim, shall have the right at its expense to substitute
non-infringing invention, design, process, product or device or to modify
such infringing invention, design, process, product or device so it becomes
non-infringing, or to obtain the necessary licenses to use the infringing
invention, design, process, product or device provided that such
substituted and modified invention, design, process, product or device
shall meet all the requirements and be subject to all the provisions of
this License Agreement.
14. The laws of the State of Kansas, United States of America, shall govern
the validity of the provisions contained herein, the construction of such
provisions, and the interpretation of the rights and duties of the parties.
Any legal action brought to enforce or construe the provisions of this
License Agreement shall be brought in the federal or state courts located
in Kansas, and the parties agree to and hereby submit to the exclusive
jurisdiction of such courts and agree that they will not invoke the
doctrine of forum non conveniens or other similar defenses in any such
action brought in such courts.
-20-
15. OWNER hereby agrees to waive all claims against ICM and ICM's
Representatives for any consequential damages that may arise out of or
relate to this License Agreement, the Contract or the Proprietary Property
whether arising in contract, warranty, tort (including negligence), strict
liability or otherwise, including but not limited to losses of use,
profits, business, reputation or financing. OWNER agrees that the aggregate
amount OWNER (and anyone claiming by or through OWNER) may collectively
recover from ICM (and its Representatives), *
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
16. The terms and conditions of this License Agreement constitute the
entire agreement between the parties with respect to the subject matter
hereof and supersede any prior understandings, agreements or
representations by or between the parties, written or oral. Any rule of
construction to the effect that any ambiguity is to be resolved against the
drafting party shall not be applicable in the interpretation of this
License Agreement. This License Agreement may not be modified or amended at
any time without the written consent of the parties.
17. All notices, requests, demands, reports, statements or other
communications (herein referred to collectively as "Notices") required to
be given hereunder or relating to this License Agreement shall be in
writing and shall be deemed to have been duly given if transmitted by
personal delivery or mailed by certified mail, return receipt requested,
postage prepaid, to the address of the party as set forth below. Any such
Notice shall be deemed to be delivered and received as of the date so
delivered, if delivered personally, or as of the third business day
following the day sent, if sent by certified mail. Any party may, at any
time, designate a different address to which Notices shall be directed by
providing written notice in the manner set forth in this paragraph.
18. In the event that any of the terms, conditions, covenants or agreements
contained in this License Agreement, or the application of any thereof,
shall be held by a court of competent jurisdiction to be invalid, illegal
or unenforceable, such term, condition, covenant or agreement shall be
deemed void ab initio and shall be deemed severed from this License
Agreement. In such event, and except if such determination by a court of
competent jurisdiction materially changes the rights, benefits and
obligations of the parties under this License Agreement, the remaining
provisions of this License Agreement shall remain unchanged unaffected and
unimpaired thereby and, to the extent possible, such remaining provisions
shall be construed such that the purpose of this License Agreement and the
intent of the parties can be achieved in a lawful manner.
19. The duties and obligations herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and
permitted assigns of the parties hereto.
20. The waiver by any party hereto of the breach of any term, covenant,
agreement or condition herein contained shall not be deemed a waiver of any
subsequent breach of the same or any other term, covenant, agreement or
condition herein, nor shall any custom, practice or course of dealings
arising among the parties hereto in the administration hereof be construed
as a waiver or diminution of the right of any party hereto to insist upon
the strict performance by any other party of the terms, covenants,
agreement and conditions herein contained.
21. In this License Agreement, where applicable, (i) references to the
singular shall include the plural and references to the plural shall
include the singular, and (ii) references to the male,
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female, or neuter gender shall include references to all other such genders
where the context so requires.
IN WITNESS WHEREOF, the parties hereto have executed this License Agreement, the
Effective Date of which is indicated on page 1 of this License Agreement.
OWNER: ICM:
ICM, Inc.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx XxxxxxXxxxxx
Title: Chairman Title: President/CEO
Date Signed: 9/25/2006 Date Signed: 9/25/2006
Address for giving notices: Address for giving notices:
000 X Xxxxx Xxxxxx
Xxxxxxx, XX 00000
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Exhibit G
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
ICM Training:
The Contract Price includes a commitment by DESIGN/BUILDER to perform certain
training for certain personnel of OWNER at OWNER's ethanol plant, which is
located in Council Bluffs, Iowa.
Employee training will be coordinated by operational personnel of DESIGN/BUILDER
with the support of personnel of OWNER on location at OWNER's ethanol plant.
Vendor training will also occur in conjunction with this training. The specific
schedule, attendees and training detail will be provided as Plant start up date
is determined.
Such personnel of OWNER will have the opportunity to operate the ethanol plant
under the supervision of operators of DESIGN/BUILDER . It is anticipated that
personnel participating in such training will include the plant manager,
laboratory manager and shift supervisors who will work at the Plant for a period
of 1-3 weeks. DESIGN/BUILDER will not charge any fee to OWNER for this startup
training and DESIGN/BUILDER will provide all training materials. Expenses for
OWNER's employees such as travel, salaries, rooms and meals of the participants
will be the responsibility of OWNER.
Training Course Outline
ICM provides a six week training course for all production employees of the
facility. These six weeks are coordinated as follows:
1. Classroom training. (first week) Each day of this week begins with a
two hour safety topic (i.e. lock-out tag-out, confined space, hazard
communication, etc.) to expose the employees to safety precautions
applicable to the process. The remaining time is dedicated to the
chemistry and unit operations used for converting grain to ethanol:
β’ xxxx (liquefaction of starch to dextrin's)
β’ fermentation (conversion of sugar to ethanol and carbon
dioxide)
β’ distillation/evaporation (separation of ethanol from water
and corn solids)
β’ centrifugation (concentration of corn solids)
β’ dried distiller's grain dryer systems.
2. Employees are sent to an ethanol facility in operation (second week)>
each day they receive four hours of classroom training covering the
same topics as in week one. They also experience four hours of
hands-on learning with the facility's operators. This exposes them to
the duties required of an operator including: sampling, computer
operations, key operating parameters, safety concerns and overall
plant operations culture.
3. Employees are given specific vendor training on topics (third week)
including but not limited to:
β’ enzymes
β’ yeast
β’ boiler operations
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β’ water treatment
β’ centrifuge operation
β’ pump operation
β’ instrumentation
β’ heat exchangers
β’ cooling tower
β’ grain handling
β’ methanator water treatment.
β’ rolling stock
ICM also provides a Process Hazard Analysis review with the plant
management team and several operators. This is led by an ICM
professional engineer. When no presentations are scheduled, employees
are assigned the task of labeling tanks, piping and equipment in order
to increase their familiarity with equipment location and piping
contents.
4. Similar as week three. (fourth week)
5. Employees return to an operating plant. (fifth week) This visit, they
are allowed to run the ethanol process while under the plant
operator's supervision.
6. The ICM start up team is on-site to start water trials (sixth week)
(this may begin in week five as well). The boiler is started up this
week or possibly the week prior under supervision of the manufacturer
and boiler inspector. Water is introduced into the first tank in the
process and transferred through the piping system in order to test the
following:
β’ vessel integrity
β’ welding quality
β’ valve and instrument performance and tuning
β’ pump performance
β’ vacuum leaks in the distillation system
β’ heat exchanger integrity
Steam is introduced into the xxxx system and evaporator system to test
for leaks and expansion joint performance. The cooling tower is filled
and circulated as well. Thus, prior to the introduction of grain to the
hammer xxxxx, the entire process is brought up to flow, pressure and
temperature using water and steam. This not only tests the mechanical
integrity of the workmanship but also provides the employees with
additional experience operating the control system.
It is recommended plant employees are on the 24 hour coverage schedule
to ensure water trials are completed in a timely manner.
In addition, for * days after Substantial Completion, Design/Builder will
provide up to two (2) ICM representatives on-site technical and operating
support. Design/Builder will also provide off-site support for a period of *
days after Substantial Completion. All of the foregoing services will be at no
additional cost to OWNER.
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Exhibit H
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
INSURANCE
DESIGN/BUILDER'S Employers' Liability, Business Automobile Liability, and
Commercial General Liability policies, as required in General Conditions
paragraph 5.02 shall be written with at least the following limits of liability:
1. Employers' Liability Insurance
a. $1,000,000 Bodily Injury by Accident Each Accident
b. $1,000,000 Bodily Injury by Disease Policy Limit
c. $1,000,000 Bodily Injury by Disease Each Employee
2. Business Automobile Liability Insurance
a. $1,000,000 Each Accident
3. Commercial General Liability Insurance
a. $1,000,000 Each Occurrence
b. $2,000,000 General Aggregate
c. $2,000,000 Products/Completed Operations Aggregate
d. $1,000,000 Personal and Advertising Injury Limit
4. Liability Umbrella policy: $4,000,000 (in addition to the
underlying limits).
5. Professional Errors & Omissions policy. $1,000,000 per policy
year.
6. Worker's Compensation - Statutory Limits.
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Exhibit I
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
Equipment Warranty:
The warranty for Plant production rates, product quality, efficiencies and
emissions standards is covered in Exhibit A. This Exhibit I specifically defines
DESIGN/BUILDER's operating warranty for Plant equipment inside the battery
limit.
DESIGN/BUILDER reserves the right at its own discretion, to void any and all
warranty if the operation of the Plant and/or its subsystems, exceeds nameplate
capacity by five percent (5%) or more.
DESIGN/BUILDER is OWNER's first point of contact for any claim of warranty by
OWNER against DESIGN/BUILDER concerning Plant equipment, during the warranty
period.
The cost of labor performed by vendors other than DESIGN/BUILDER to settle a
warranty claim situation, without written permission from DESIGN/BUILDER, will
not be covered under any warranty expressed or implied by DESIGN/BUILDER.
What is furnished under the warranty:
The warranty will furnish replacement consumables and parts covered under the
warranty. Labor will only be furnished by DESIGN/BUILDER to repair items
warranted for workmanship and originally designed and built by DESIGN/BUILDER.
What is covered by the warranty:
Workmanship and materials on all plant equipment including pumps, instruments,
controls, DCS, switchgear, wiring, conveyors, gearboxes, auger flighting, valves
2" size and above, valve actuators, tanks, vessels, air compressors, boilers,
cooling towers, motors, couplers, belts, sheaves, chains, sprockets, heat
exchangers, agitators, centrifuges, fans, blowers, Hvac units, and other related
equipment.
Warranty will cover failures of seals for lack of coolant flush during the seven
(7) day performance test described in Exhibit A.
Warranty will cover failure of seals and couplers caused by misalignment during
the seven (7) day performance test described in Exhibit A.
Warranty will cover failure of pump seals caused by product misapplication.
Warranty will cover labor and parts to repair all leakage from pipes, exchangers
and valves during the seven (7) day performance test described in Exhibit A.
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What is not covered by the warranty:
Warranty does not cover damage to process equipment of any kind, from, improper
maintenance, improper operation, operator negligence or abuse.
Warranty does not cover catastrophic failures of the critical path equipment by
chain reaction, from improper operation, abuse or neglect of other equipment or
procedures in the process equipment critical path and/or acts of God, whether
upstream or downstream.
Warranty does not cover damage caused by customer modification of equipment
included in the warranty list during the warranty period, without the written
consent of DESIGN/BUILDER.
Warranty does not cover pipe gaskets, sight glasses, valves under 2" in size,
door knobs, walk in doors and closers, pipe and border painting, man-way
gaskets, countertops and window glasses after the seven (7) day performance test
described in Exhibit A.
Warranty does not cover pump seals, pump motors and bearings that fail for lack
of coolant flush after the seven (7) day performance test described in Exhibit
A.
Warranty does not cover pump seals or couplers after the seven (7) day
performance test described in Exhibit A that fail from misalignment.
Warranty will not cover failure of any size valve when failure is determined to
be a result of owner welding on or near the valve.
Warranty will not cover failure of any equipment due to improper grounding of
welding equipment.
Warranty will not cover any equipment damaged by lightning strikes, power
surges, power outages or poor quality power from the electricity supplier.
Warranty will not cover leaking plate and frame exchangers after the seven (7)
day performance test described in Exhibit A.
Procedure for warranty claim:
DESIGN/BUILDER does not expect OWNER to remain out of service with equipment
that has failed during the warranty period while trying to settle the warranty
claim. Whether covered by warranty or not the plant must operate.
Consumable items such as motors, gearboxes, seals, switchgear and similar
equipment should be replaced and the damaged unit returned to DESIGN/BUILDER or
made available for inspection by DESIGN/BUILDER. DESIGN/BUILDER reserves the
right to return the item to the manufacturer for evaluation before settling a
warranty issue.
Failure to return or produce for inspection the damaged parts or equipment will
void any warranty expressed or implied.
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1. The first step by OWNER to satisfy a warranty question is to call
DESIGN/BUILDER's project manager (or the delegated alternate) and
notify that person of the claim. Provide the following information:
A. Item nomenclature
B. Equipment or part number
C. Description of failure
D. Corrective action taken
E. Location and disposition of failed item
2. Fill out the electronic form provided by DESIGN/BUILDER and send the
form by mail or email to the Project manager or his designate.
3. Project manager or delegate will respond within one (1) working day to
acknowledge the claim and documentation, by phone and follow up with
email.
4. Determination of settlement will be made in forty-five (45) days or
less by DESIGN/BUILDER. If conflict arises from the determination
between OWNER and DESIGN/BUILDER, such conflict will be resolved under
the dispute resolution procedure set forth in Article 15 of the
General Conditions.
Warranty Period:
The warranty period is the twelve (12) month period commencing on the date of
Substantial Completion and ending on the date that is 12 months immediately
thereafter. In order for OWNER to make a warranty claim the deficiency must be
discovered, and OWNER must notify DESIGN/BUILDER in writing of such deficiency
within this warranty period.
-28-
*THE PORTIONS OF THIS EXHIBIT L WHICH ARE MARKED WITH AN ASTERISK HAVE BEEN
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT L
Exhibit L
APPLICATION AND CERTIFICATE FOR PAYMENT AIA DOCUMENT G702 PAGE 1 of 7 PAGES
------------------------------------------------------------------------------------------------------------------------------------
TO OWNER: Southwest Iowa Renewable Energy, LLC ICM Project Nol. G150 APPLICATION NO.: Distribution to:
110 MMGY PERIOD TO: Exhibit J---------OWNER
Ethanol Production Facility PROJECT NOS.: G150
APPLICATION DATE: Exhibit J---------CONTRACTOR
CONTRACT DATE: Exhibit J
FROM CONTRACTOR: ICM VIA ENGINEER ICM, Inc.
000 X. Xxxxx Xxxxxx X.x. Xxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
CONTRACT FOR: Ethanol Plant Engineering/Procurement/Construction
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CONTRACTOR'S APPLICATION FOR PAYMENT The undersigned Contractor certifies that to the best of the
Application is made for payment, as shown below in Contractor's knowledge, information and belief the Work covered by
connection with the contract. Continuation Sheet, this Application for Payment has been completed in accordance with
XXX, Xxxxxxxx X000, is attached. the Contract Documents, that all amounts have been paid by the
Contractor for Work for which previous Certificates for Payment were
1. ORIGINAL CONTRACT SUM............. $-------------- issued and payments received from the Owner, and that current payment
2. Net Change by Change Orders....... --------------- shown herein is now due.
3. Contract sum to date (Line 1+2)... $--------------
4. TOTAL COMPLETED & STORED TO DATE.. $-------------- CONTRACTOR
(Column G on G703)
5. RETAINAGE: BY:----------------------------------- Date:------------------------
A. --% of Completed Work $-------- State of:
Total Retainage (Line 5a + 5b or County of:
Total in Column 1 of G703 Subscribed and sworn to before
6. TOTAL EARNED LESS RETAINAGE....... $-------------- Me this day of
(Line 4 less Line 5 Total) Notary Public:
7. CREDIT TO DOWNPAYMENT............. $-------------- My Commission expires:
-% of each progress payment --------------------------------------------------------------------
7a. REMAINING DOWN PAYMENT CREDIT $--------------
8. TOTAL EARNED LESS RETAINAGE....... --------------- CERTIFICATE FOR PAYMENT
& CREDIT TO DOWNPAYMENT
9. LESS PREVIOUS CERTIFICATES FOR --------------------------------------------------------------------
PAYMENT
(Line 8 from prior Certificate) --------------- In accordance with the Contract Documents, based on on-site
10. CURRENT PAYMENT DUE............... --------------- observations and the data comprising this application, the Architect
11. BALANCE TO FINISH, INCLUDING certifies to Owner that to the best of the Architect's knowledge,
RETAINAGE --------------- information and belief the Work has progressed as indicated, the
$--------------------- quality of the Work is in accordance with the Contract Documents,
and the Contractor is entitled to payment of the AMOUNT CERTIFIED.
---------------------------------------------------------------
CHANGE ORDER SUMMARY ADDITIONS DEDUCTIONS AMOUNT CERTIFIED........................ $--------------------------
---------------------------------------------------------------(Attached explanation if amount certified differs from the amount
applied for. Initial all figures on this Application and on the
--------------------------------------------------------------- Continuation Sheet that are changed to conform to the amount
certified.)
--------------------------------------------------------------- ARCHITECT:
By:----------------------------------- Date:------------------------
--------------------------------------------------------------- This certificate is not negotiable. The AMOUNT CERTIFIED is payable
only to the Contractor named herein. Issuance, payment and
--------------------------------------------------------------- acceptance of payment are without prejudice to any rights of the
Owner or Contractor under this Contract.
---------------------------------------------------------------
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
ID Task Name * * * * * * * * * * * * * * * * * * * *
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
1 Concrete * * *
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
2 Steel Erection * * *
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
3 Equipment Installation * * *
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
4 Piping Installation * * *
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
5 Insulation * * *
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
6 Painting * * *
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
7 Training * * *
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
8 Startup * * *
------- ----------------------- ----------- -------------- ------------- ------ ----- ------ ----- ------ ----- ------ ------- ------ ------- ----- ------ ------ ----- ------ ----- ------
9 Grind * * *
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------------------------------- ------------------------- ------------------------- ------------------------- ------------------------- ------------------------- -------------------------
Task Rolled Up Task External Tasks
Project G150 SIRE Schedule
Date: *
Exhibit K
------------------------------- ------------------------- ------------------------- ------------------------- ------------------------- ------------------------- -------------------------
------------------------------- ------------------------- ------------------------- ------------------------- ------------------------- ------------------------- -------------------------
Progress Rolled Up Milestone Project Summary
------------------------------- ------------------------- ------------------------- ------------------------- ------------------------- ------------------------- -------------------------
~/ ~/
------------------------------- ------------------------- ------------------------- ------------------------- ------------------------- ------------------------- -------------------------
Milestone ? Rolled Up Progress Group By Summary
------------------------------- ------------------------- ------------------------- ------------------------- ------------------------- ------------------------- -------------------------
------------------------------- ------------------------- ------------------------- ------------------------- ------------------------- ------------------------- -------------------------
Summary Split Deadline ~/
------------------------------- ------------------------- ------------------------- ------------------------- ------------------------- ------------------------- -------------------------
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Page 1
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* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
---------------------------------------- -------------- ---------- ------------- --------------- -------------- --------------------------- ------------ --------------- ------------------
CONTINUATION SHEET AIA DOCUMENT G703 PAGE 6 OF 7 PAGES
------------------------------------------------------- ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
AIA Document G702, APPLICATION AND CERTIFICATE FOR APPLICATION NO.: Exhibit L
PAYMENT
------------------------------------------------------- ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
Containing Contractor's signed Certification, is APPLICATION DATE:
attached.
------------------------------------------------------- ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
In Tabulations below, amounts are stated to the PERIOD TO:
nearest dollar.
------------------------------------------------------- ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
Use Column 1 on Contracts where variable retainage ARCHITECT'S PROJECT NO.: G150
for the line items may apply.
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
A B C D E F G H I
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
WORK COMPLETED MATERIALS TOTAL
--------- -------------------------------- ------------ ---------- ------------- ------------------------------ -------------- -------------- ---------- --------------- ------------------
FROM PRESENTLY COMPLETED BALANCE RETAINAGE
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
ITEM SCHEDULED SCHEDULED PREVIOUS STORED AND STORED * TO (IF VARIABLE
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
NO. DESCRIPTION OF WORK AMOUNT IN PLACE VALUE APPLICATION THIS PERIOD (NOT IN TO DATE (G/C) FINISH RATE)
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11 ELECTRICAL * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
Electrical Equipment & * * * * * * *
Materials
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.1 Switchgear/MCC's * * * * * * *
Purchase/Issue PO *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.2 Switchgear/MMC's Vendor * * * * * * *
Drawings *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.3 Switchgear/MMC's One Site * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.4 Electrical Wire/Cable * * * * * * *
Purchase/Issue PO *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.5 Electrical Wire/Cable On Site * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.6 DCS Purchase/Issue PO * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.7 DCS Vendor Drawings * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.8 DCS On Site * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.9 Instrument Cable * * * * * * *
Purchase/Issue PO *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.10 Instrument Cable On Site * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.11 Cable Trays Purchase/Issue PO * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.12 Cable Trays On Site * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.13 Lighting Fixtures * * * * * * *
Purchase/Issue PO *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.14 Lighting Fixtures On Site * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.15 Instruments & J Boxes * * * * * * *
Purchase/Issue PO *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.16 Instruments & J Boxes On Site * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.17 Order Conduit * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.18 Conduit Onsite * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.19 Order Heat Trade * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.20 Heat Trace Onsite * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
Primary distribution * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
Secondary Distribution * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.21 Electrical Wire/Cable * * * * * * *
Installation
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.22 Switchgear/MMC's Set * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.23 Secondary transformers/panels * * * * * * *
Set
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.24 Terminations * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.25 Energized * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.26 Cable Tray * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
Motors * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.27 Cable Installation * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.28 Terminations * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.29 Energized (checked and bumped) * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
Lighting * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.30 Fixtures Installation * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.31 Energized (completed) * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
---------------------------------------- -------------- ---------- ------------- --------------- -------------- --------------------------- ------------ --------------- ------------------
CONTINUATION SHEET AIA DOCUMENT G703 PAGE 7 OF 7 PAGES
------------------------------------------------------- ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
AIA Document G702, APPLICATION AND CERTIFICATE FOR APPLICATION NO.:
PAYMENT
------------------------------------------------------- ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
Containing Contractor's signed Certification, is APPLICATION DATE: Exhibit L
attached.
------------------------------------------------------- ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
In Tabulations below, amounts are stated to the PERIOD TO:
nearest dollar.
------------------------------------------------------- ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
Use Column 1 on Contracts where variable retainage ARCHITECT'S PROJECT NO.: G150
for the line items may apply.
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
A B C D E F G H I
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- ------------------------- --------------- ------------------
WORK COMPLETED MATERIALS TOTAL
--------- -------------------------------- ------------ ---------- ------------- ------------------------------ -------------- -------------- ---------- --------------- ------------------
FROM PRESENTLY COMPLETED BALANCE RETAINAGE
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
ITEM SCHEDULED SCHEDULED PREVIOUS STORED AND STORED * TO (IF VARIABLE
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
NO. DESCRIPTION OF WORK AMOUNT IN PLACE VALUE APPLICATION THIS PERIOD (NOT IN TO DATE (G/C) FINISH RATE)
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
(D + E) D OR E) (D + E + F) (C - G)
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
Instrumentation * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.32 DCS panels Set * * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.33 Instruments Installation * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.34 Cable Installation * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.35 Jboxes Installation * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.36 Jboxes Wiring/terminations * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.37 Terminations * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.38 Loop check complete * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.39 Programming * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
Misc. * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.40 Outlets/receptacles * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.41 HVAC * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.42 Grounding * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
11.43 Heat Trace Installation * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
*
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
12.01 Issue P.O. For DDG Loadout * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
12.02 DDG Building Foundation * * * * * *
Installed
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
12.03 DDG Building Constructed * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
12.04 Rail Loadout Building * * * * * *
Foundation
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
12.05 Rail Loadout Building * * * * * *
Constructed
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
12.06 DDG Loadout Equipment Installed * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
13 Change Orders * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
TOTALS * * * * * * *
--------- -------------------------------- ------------ ---------- ------------- --------------- -------------- -------------- -------------- ---------- --------------- ------------------
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-29-
Exhibit M
to
Agreement Between Owner and Design/Builder
On the Basis of a Stipulated Price
[Form of Notice to Proceed]
(Plant Name)
(Date)
(Project Manager Name)
ICM, INC.
000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
(Phone Number)
Re: Notice to Proceed
Dear (Project Manager):
This letter will serve as authorization and Notice to Proceed for ICM, Inc. with
regards to the construction of (Plant Name) LLC ethanol plant in (City and
State) in accordance with the Design/Build contract dated (Insert Contract
Date), in place with ICM, INC.
Pursuant to Article 2.01A of the Agreement, the project will be completed within
(Number of Calendar days in contract) days after the date when the Contract
Times commence to run as set forth in subparagraph 1.01A.10 of the General
Conditions. Contract time will commence at such time when Owner delivers to
Design/Builder the Notice to Proceed, signed Contract Documents, Down Payment,
air permit for the project, all necessary underground utilities are installed,
all fill material is placed, and a level, buildable site is delivered to the
Design/Builder as required in Exhibit E of the Contract.
Signature: ___________________
Printed Name: _________________
Its:
(Company Name)
(Date)
-30-
GENERAL CONDITIONS OF THE
CONTRACT BETWEEN
OWNER AND DESIGN/BUILDER
ARTICLE 1--DEFINITIONS
1.01 Defined Terms
A. Wherever used in these General Conditions or in the other Contract
Documents the following terms have the meanings indicated which are applicable
to both the singular and plural thereof:
1. Agreement--The Agreement Between Owner and Design/Builder on the Basis of
a Stipulated Price covering the Work. Other Contract Documents are
incorporated into the Agreement and made a part thereof as provided therein.
2. Application for Payment--The form that is substantially similar to
Exhibit J which is to be used by DESIGN/BUILDER in requesting progress or
final payments and which is to be accompanied by such supporting
documentation as is required by the Contract Documents.
3. Asbestos--Any material that contains more than one percent (1%) asbestos
and is friable or is releasing asbestos fibers into the air above current
action levels established by the United States Occupational Safety and
Health Administration.
4. Bond--Performance or payment bond or other instrument of security.
5. Change Order--A written order which is signed by DESIGN/BUILDER and OWNER
which authorizes an addition, deletion or revision in the Work, or an
adjustment in the Contract Price or the Contract Times, issued on or after
the Effective Date of the Agreement.
6. Construction--The performing or furnishing of labor, the furnishing and
incorporating of materials and equipment into the Work and the furnishing of
services (other than Design Professional Services) and documents, all as
required by the Contract Documents. Construction includes the materials and
equipment incorporated into the Project.
7. Construction Subagreement--A written agreement between DESIGN/BUILDER and
a construction contractor for provision of Construction.
8. Contract Documents--The Agreement and related exhibits, the Notice to
Proceed, these General Conditions, the Specifications and the Drawings
together with all Change Orders, and Written Amendments, issued on or after
the Effective Date of the Agreement.
9. Contract Price--The moneys payable by OWNER to DESIGN/BUILDER for
completion of the Work in accordance with the Contract Documents.
10. Contract Times--The number of days or the dates stated in the Agreement
(i) to achieve Substantial Completion, and (ii) to complete the Work so that
it is ready for final payment in accordance with paragraph 13.08.
-31-
11. defective--An adjective which when modifying the term Construction
refers to Construction that is unsatisfactory, faulty or deficient, in that
it does not conform to the Contract Documents, or does not meet the
requirements of any inspection, reference standard, test or approval
referred to in the Contract Documents, or has been damaged prior to OWNER's
final payment.
12. DESIGN/BUILDER--ICM, Inc., a Kansas corporation.
13. Design Subagreement--A written agreement between DESIGN/BUILDER and a
design professional for provision of Design Professional Services.
14. Design Professional Services--Services provided by or for licensed
design professionals during Construction, or operational phases of the
Project, including the development of drawings, Specifications, and other
design submittals specified by the Contract Documents and required to be
performed by licensed design professionals.
15. Drawings--Those portions of the Contract Documents prepared by or for
DESIGN/BUILDER and approved by OWNER consisting of drawings, diagrams,
illustrations, schedules and other data which show the scope, extent, and
character of the Work.
16. Effective Date of the Agreement--The date indicated in the Agreement on
which it becomes effective, but if no such date is indicated it means the
date on which the Agreement is signed and delivered by the last of the two
parties to sign and deliver.
17. Engineer--A duly licensed individual or entity designated by
DESIGN/BUILDER to perform or furnish specified Design Professional Services
in connection with the Work.
18. Hazardous Condition--The presence at the Site of Asbestos, Hazardous
Waste, PCB's, Petroleum Products or Radioactive Materials in such quantities
or circumstances that there is a danger to persons or property.
19. Hazardous Waste--The term Hazardous Waste shall have the meaning
provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section
6903).
20. Laws and Regulations; Laws or Regulations--Any and all applicable laws,
rules, regulations, ordinances, codes, permits, and orders of any and all
governmental bodies, agencies, authorities and courts having jurisdiction.
21. Liens--Charges, security interests or encumbrances upon real property or
personal property.
22. Notice to Proceed--A written notice given by OWNER to DESIGN/BUILDER
fixing the date on which the Contract Times will commence to run in
accordance with paragraph 2.01.
23. OWNER--The public body, or authority, individual or entity with whom
DESIGN/BUILDER has entered into the Agreement and for whom the Work is to be
provided.
24. PCBs--Polychlorinated biphenyls.
25. Petroleum--Petroleum, including crude oil or any fraction thereof which
is liquid at standard conditions of temperature and pressure (60 degrees
Fahrenheit and 14.7 pounds per square inch
-32-
absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse,
gasoline, kerosene, and oil mixed with other non-Hazardous Wastes and crude
oils.
26. Project--The Construction to be provided under the Contract Documents as
provided in paragraph 1.01 of the Agreement.
27. Punch List Items-- The miscellaneous items in the scope of the Project
that are not required for the Project to be operational and that remain to
be completed by DESIGN/BUILDER after Substantial Completion and before Final
Completion.
28. Radioactive Material--Source, special nuclear, or byproduct material as
defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as
amended from time to time.
29. Schedule of Values--A schedule prepared by DESIGN/BUILDER indicating
that portion of the Contract Price to be paid for each major component of
the Work.
30. Site--Lands or other areas designated in the Contract Documents as being
furnished by OWNER for the performance of the Construction, storage, or
access.
31. Specifications--Those portions of the Contract Documents prepared by or
for DESIGN/BUILDER and approved by OWNER consisting of written technical
descriptions of materials, equipment, construction systems, standards and
workmanship as applied to the Construction and certain administrative
details applicable thereto.
32. Subcontractor--An individual or entity other than a Supplier or Engineer
having a direct contract with DESIGN/BUILDER or with any other Subcontractor
for the performance of a part of the Work.
33. Substantial Completion--The time at which the Construction (or a
specified part) has progressed to the point where it is sufficiently
complete, in accordance with the Contract Documents, and when grain is
introduced to the hammer xxxxx at a rate of fifty percent (50%) average rate
over a three (3) day period with measurable output of ethanol and dried
distiller's grains. The terms "substantially complete" and "substantially
completed" as applied to the Construction refer to Substantial Completion of
Construction.
34. Supplier--A manufacturer, fabricator, supplier, distributor, materialman
or vendor having a direct contract with DESIGN/BUILDER or with any
Subcontractor to furnish materials or equipment to be incorporated in the
Work by DESIGN/BUILDER or any Subcontractor.
35. Work--The entire completed construction or the various separately
identifiable parts thereof required to be performed or furnished under the
Contract Documents. Work includes and is the result of performing or
furnishing Design Professional Services and Construction required by the
Contract Documents.
36. Written Amendment--A written amendment of the Contract Documents,
signed by OWNER and DESIGN/BUILDER on or after the Effective Date of the
Agreement.
37. P&ID's--Process and Instrumentation Diagrams
-33-
ARTICLE 2--PRELIMINARY MATTERS
2.01 Commencement of Contract Times; Notice to Proceed
A. The Contract Times will commence to run on the day indicated in the
Notice to Proceed; provided, however, in no case shall the Contract Times
commence to run before the later of the date (i) Notice to Proceed is delivered
pursuant to paragraph 8.07 of the Agreement, (ii) the entire amount of the down
payment is paid pursuant to paragraph 4.01A of the Agreement, (iii) all
necessary underground utilities have been installed at the Site, and (iv) all
fill material is placed and a level, buildable Site is delivered to
DESIGN/BUILDER. A Notice to Proceed may be given at any time within the period
of time set forth in Section 8.07 of the Agreement.
2.02 Starting the Work
A. DESIGN/BUILDER shall start to perform the Work on the date when the
Contract Times commence to run.
2.03 Preliminary Schedules and Proof of Insurance
A. A preliminary progress schedule indicating the times (number of days or
dates) for starting and completing the various stages in the design and
construction of the Work is attached as Exhibit K. A preliminary Schedule of
Values for all of the Work, which includes quantities and prices of items
aggregating the Contract Price, subdivides the Work into component parts to
serve as the basis for progress payments during performance of the Work and
includes a pro rata amount of overhead and profit applicable to each item of
Work is attached hereto as Exhibit L.
B. Before any Work is started, DESIGN/BUILDER and OWNER shall each deliver
to the other, with copies to each additional insured, certificates of insurance
(and other evidence of insurance which either of them or any additional insured
may reasonably request) which DESIGN/BUILDER and OWNER respectively are required
to purchase and maintain in accordance with paragraphs 5.02.A, 5.04.A and
5.04.B.
ARTICLE 3--CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
3.01 Intent
A. The Contract Documents comprise the entire agreement between OWNER and
DESIGN/BUILDER concerning the Work. The Contract Documents are complementary;
what is called for by one is as binding as if called for by all. The Contract
Documents will be construed in accordance with the laws of the State of Kansas.
Except as otherwise required by applicable Laws and Regulations, the Contract
Documents shall govern the obligations of the parties regarding the Work and
Project.
B. It is the intent of the Contract Documents to describe a functionally
complete Project to be designed and constructed in accordance with the Contract
Documents. Any Work, materials or equipment that may reasonably be inferred from
the Contract Documents or from prevailing custom or trade usage as being
required to produce the intended result will be furnished and performed whether
or not specifically called for. When words or phrases which have a well-known
technical or construction industry or trade meaning are used to describe work,
materials or equipment, such words or phrases shall be interpreted in accordance
with that meaning.
-34-
3.02 References
A. Reference to standards, specifications, manuals or codes of any technical
society, organization or association, or to the Laws or Regulations of any
governmental authority, whether such reference be specific or by implication,
shall mean the latest standard, specification, manual, code or Laws or
Regulations in effect on the Effective Date of the Agreement except as may be
otherwise specifically stated in the Contract Documents.
B. No provision of any standard, specification, manual, code or instruction
shall be effective to change the duties and responsibilities of OWNER,
DESIGN/BUILDER or any of their subcontractors, consultants, agents, or employees
from those set forth in the Contract Documents, nor shall it be effective to
assign to OWNER any duty or authority to supervise or direct the furnishing or
performance of the Work or any duty or authority to undertake responsibility
inconsistent with the provisions of Article 8 or any other provision of the
Contract Documents.
C. Title headings contained in the Contract Documents are for convenience
and reference only and are not to be construed as limiting or extending the
meaning of any of its provisions. All dollar figures shall mean the lawful
currency of the United States of America, unless expressly stated otherwise.
Words importing the singular, include the plural, and vice versa. Words
importing the masculine gender, include the feminine and neuter, and vice versa.
Words importing persons, include firms or corporations, and vice versa, as the
context or reference requires. Any and all measurements including, but not
limited to, dimensions, calculations, volumes and weights shall be in U.S. units
of measurement.
3.03 Amending and Supplementing Contract Documents
A. The Contract Documents may be amended to provide for additions, deletions
and revisions in the Work or to modify the terms and conditions thereof in one
or more of the following ways:
1. A Change Order; or
2. A formal Written Amendment.
3.04 Reuse of Documents
A. All documents including Drawings and Specifications prepared or
furnished by DESIGN/BUILDER pursuant to the Contract Documents are instruments
of service in respect of the Project and DESIGN/BUILDER shall retain an
ownership and property interest therein whether or not the Project is completed.
OWNER may make and retain copies for information and reference in connection
with the use and occupancy of the Project by OWNER and others; however, such
documents are not intended or represented to be suitable for reuse by OWNER or
others on extensions of the Project or on any other project. Any reuse without
written verification or adaptation by DESIGN/BUILDER for the specific purpose
intended will be at OWNER's sole risk and without liability or legal exposure to
DESIGN/BUILDER, and OWNER shall indemnify and hold harmless DESIGN/BUILDER,
Subcontractors, and Engineer from all claims, damages, losses and expenses
including attorneys' fees arising out of or resulting therefrom. Any such
verification or adaptation will entitle DESIGN/BUILDER to further compensation
at rates to be agreed upon by OWNER and DESIGN/BUILDER.
-35-
B. All documents including Drawings and Specifications prepared or furnished
by DESIGN/BUILDER pursuant to the Contract Documents are also subject to the use
and disclosure restrictions set forth in the License Agreement attached to the
Agreement as Exhibit F. The parties shall execute and deliver such License
Agreement in connection with the execution and delivery of the Agreement.
Nothing contained in paragraph 3.04.A. shall be construed or interpreted as
granting OWNER any rights or interest in the Proprietary Property of
DESIGN/BUILDER (as defined in Exhibit F) except as provided in Exhibit F
attached to the Agreement.
ARTICLE 4--AVAILABILITY OF LANDS; DIFFERING SITE CONDITIONS; REFERENCE POINTS;
HAZARDOUS CONDITIONS
4.01 Availability of Lands
A. OWNER shall furnish the Site upon which the Construction is to be
performed, and rights-of-way and easements for access thereto.
B. Upon reasonable written request, OWNER shall furnish DESIGN/BUILDER with
a correct statement of record legal title and legal description of the Site upon
which the Construction is to be performed and OWNER's interest therein. OWNER
shall identify any encumbrances or restrictions not of general application but
specifically related to use of the Site so furnished with which DESIGN/BUILDER
will have to comply in performing the Work. Any and all easements necessary for
the Work will be obtained and paid for by OWNER.
C. OWNER shall provide such lands and access thereto that may be reasonably
required by DESIGN/BUILDER for temporary construction facilities or storage of
materials and equipment.
4.02 Differing Site Conditions
A. DESIGN/BUILDER shall promptly, and before the conditions are disturbed,
give a written notice to OWNER of (i) subsurface or latent physical conditions
at the Site which differ materially from those indicated in the OWNER's
geotechnical report for the Project site or the land and grading specifications
listed in Exhibit E, or (ii) unknown physical conditions at the Site, of an
unusual nature, which differ materially from those ordinarily encountered and
generally recognized as inhering in work of the character called for by the
Contract Documents.
B. OWNER will investigate the site conditions promptly after receiving the
notice. If the conditions do materially so differ and cause an increase or
decrease in the DESIGN/BUILDER's cost of or time in performing any part of the
Work, an equitable adjustment shall be made under this clause and the Contract
Times and/or Contract Price modified in writing by Change Order in accordance
with Article 9.
C. No request by DESIGN/BUILDER for an equitable adjustment under this
paragraph 4.02 shall be allowed unless DESIGN/BUILDER has given the written
notice required; provided that the time prescribed in paragraph 9.02.A for
giving written notice may be extended by OWNER.
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4.03 Reference Points
A. DESIGN/BUILDER shall be responsible for laying out the Construction and
shall protect and preserve the reference points established by OWNER pursuant to
paragraph 8.01.A.6.e and shall make no changes or relocations without the prior
written approval of OWNER. DESIGN/BUILDER shall report to OWNER whenever any
reference point or property monument is lost or destroyed or requires relocation
because of necessary changes in grades or locations, and shall be responsible
for the accurate replacement or relocation of such reference points or property
monuments by professionally qualified personnel.
4.04 Hazardous Conditions
A. OWNER represents and warrants that there is no Hazardous Condition or
materials that could create a Hazardous Condition existing at the Site as of the
Effective Date of the Agreement that has not been disclosed in writing to
DESIGN/BUILDER and that OWNER or OWNER's officers, directors, employees, agents,
other consultants or subcontractors shall not bring to the Site during the term
of the Agreement any materials creating a Hazardous Condition. OWNER will be
responsible for any Hazardous Condition encountered at the Site which was not
identified in the Contract Documents to be within the scope of the Work. OWNER
shall not be responsible for materials creating a Hazardous Condition brought to
the Site by DESIGN/BUILDER, Subcontractors, Suppliers or anyone else for whom
DESIGN/BUILDER is responsible.
B. DESIGN/BUILDER and any affected Subcontractor shall immediately (i) stop
all Construction in connection with such Hazardous Condition and in any area
affected thereby (except in an emergency as required by paragraph 6.15), and
(ii) notify OWNER (and thereafter confirm such notice in writing). OWNER shall
promptly determine the necessity of retaining a qualified expert to evaluate
such Hazardous Condition or take corrective action, if any. DESIGN/BUILDER shall
not be required to resume Construction in connection with such Hazardous
Condition or in any such affected area until after OWNER has obtained any
required permits related thereto and delivered to DESIGN/BUILDER special written
notice (i) specifying that such Hazardous Condition and any affected area is or
has been rendered safe for the resumption of Construction, or (ii) specifying
any special conditions under which such Construction may be resumed safely. If
OWNER and DESIGN/BUILDER cannot agree as to entitlement to or the amount or
extent of an adjustment, if any, in the Contract Times and/or Contract Price as
a result of such Construction stoppage or such special conditions under which
Construction is agreed by DESIGN/BUILDER to be resumed, either party may make a
claim therefor as provided in Article 9.
C. To the fullest extent permitted by Laws and Regulations, OWNER shall
indemnify and hold harmless DESIGN/BUILDER, Subcontractors, Suppliers, Engineers
and the officers, directors, employees, agents, other consultants and
subcontractors of each and any of them from and against all claims, costs,
losses and damages (including but not limited to all reasonable fees and charges
of engineers, architects, attorneys and other professionals and all court or
arbitration or other dispute resolution costs) arising out of or resulting from
such Hazardous Condition. Nothing in this paragraph 4.04.C shall obligate OWNER
to indemnify any individual or any entity, including DESIGN/BUILDER, from and
against the consequences of that individual's or entity's own negligence or
willful misconduct. OWNER shall not be obligated to indemnify or hold harmless
DESIGN/BUILDER, Subcontractors, Suppliers or any other individual or any entity
for any such claim, cost, loss or damage arising out of or resulting from
materials creating a Hazardous Condition brought to the Site by DESIGN/BUILDER,
Subcontractors, Suppliers or any other party for whom DESIGN/BUILDER is
responsible.
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ARTICLE 5--BONDS AND INSURANCE
5.01 Performance, Payment or Other Bond
A. DESIGN/BUILDER shall not be required to furnish a performance, payment or
any other Bond.
5.02 DESIGN/BUILDER's Liability Insurance
A. DESIGN/BUILDER shall purchase and maintain such Commercial General
Liability (subject to customary exclusions in respect of professional
liability), Automobile Liability and Worker's Compensation insurance as is
appropriate for the Work being performed and furnished and as will provide
protection from claims set forth below which may arise out of or result from
DESIGN/BUILDER's performance and furnishing of the Work and DESIGN/BUILDER's
other obligations under the Contract Documents, whether it is to be performed or
furnished by DESIGN/BUILDER, any Subcontractor or Supplier, or by anyone
directly or indirectly employed by any of them to perform or furnish any of the
Work, or by anyone for whose acts any of them may be liable:
1. Claims under workers' compensation, disability benefits and other similar
employee benefit acts;
2. Claims for damages because of bodily injury, occupational sickness or
disease, or death of DESIGN/BUILDER's employees;
3. Claims for damages because of bodily injury, sickness or disease, or
death of any person other than DESIGN/BUILDER's employees;
4. Claims for damages insured by customary personal injury liability
coverage which are sustained (i) by any person as a result of an offense
directly or indirectly related to the employment of such person by
DESIGN/BUILDER, or (ii) by any other person for any other reason;
5. Claims for damages, other than to the Work itself, because of injury to
or destruction of tangible property wherever located other than claims under
paragraph 5.02.A.7. below, including loss of use resulting therefrom;
6. Claims for damages because of bodily injury or death of any person or
property damage arising out of the ownership, maintenance or use of any
motor vehicle; and
7. Claims for professional errors and omissions arising from the Design
Professional Services provided for the Project.
B. The policies of insurance required by paragraph 5.02.A shall:
1. With respect to insurance required by paragraphs 5.02.A.3 through
5.02.A.6 inclusive, include as additional insureds OWNER and any other
persons or entities identified in writing by OWNER, all of whom shall be
listed as additional insureds, and include coverage for the respective
officers and employees of all such additional insureds;
2. Include at least the specific coverages and be written for not less than
the limits of liability set forth in Exhibit H or required by Laws or
Regulations, whichever is greater;
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3. Include completed operations insurance;
4. Include contractual liability insurance covering DESIGN/BUILDER's
indemnity obligations under paragraphs 6.10 and 6.18;
5. Contain a provision or endorsement that the coverage afforded will not be
cancelled, materially changed or renewal refused until at least thirty (30)
days prior written notice has been given to OWNER and each other additional
insured to whom a certificate of insurance has been issued (and the
certificates of insurance furnished by DESIGN/BUILDER pursuant to paragraph
5.08.B will so provide);
6. Remain in effect at least until final payment and at all times thereafter
when DESIGN/BUILDER may be correcting, removing or replacing defective
Construction in accordance with paragraphs 12.06 and 12.07;
7. With respect to completed operations insurance, remain in effect for at
least one year after final payment (and DESIGN/BUILDER shall furnish OWNER
and each other additional insured to whom a certificate of insurance has
been issued evidence satisfactory to OWNER and any such additional insured
of continuation of such insurance at final payment); and
8. DESIGN/BUILDER shall maintain in effect all insurance coverage required
under this paragraph at DESIGN/BUILDER'S sole expense with insurance
companies (and policies) approved by OWNER. If DESIGN/BUILDER fails to
obtain or maintain any insurance coverage required under this Agreement, the
OWNER may purchase such coverage and charge the expense to DESIGN/BUILDER,
or terminate this Agreement for cause in accordance with paragraph 14.02
below.
5.03 OWNER's Liability Insurance
A. In addition to the insurance required to be provided by DESIGN/BUILDER
under paragraph 5.02, OWNER, at OWNER's option, may purchase and maintain at
OWNER's expense OWNER's own liability insurance as will protect OWNER against
claims which may arise from operations under the Contract Documents.
5.04 Property Insurance
A. OWNER shall purchase and maintain property insurance upon the
Construction at the Site in the amount of the full replacement cost thereof at
OWNER's sole expense with insurance companies (and policies) approved by
DESIGN/BUILDER. This insurance will:
1. Include the interests of OWNER, DESIGN/BUILDER, Subcontractors, and any
other persons or entities listed as an insured or additional insured;
2. Be written on a Builder's Risk "all-risk" or equivalent policy form that
shall at least include insurance for physical loss and damage to the
Construction, temporary buildings, falsework and all materials and equipment
in transit, and shall insure against at least the following perils or causes
of loss: fire, lightning, extended coverage, theft, vandalism and malicious
mischief, earthquake, collapse, debris removal, demolition occasioned by
enforcement of Laws and Regulations, water
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damage, flood, system testing, and such other perils or causes of loss as
may be agreed in writing by DESIGN/BUILDER and OWNER;
3. Include expenses incurred in the repair or replacement of any insured
property (including but not limited to fees and charges of engineers and
architects);
4. Cover materials and equipment stored at the Site or at another location
that was agreed to in writing by OWNER prior to being incorporated in the
Construction, provided that such materials and equipment have been included
in an Application for Payment approved by OWNER; and
5. Be maintained in effect until final payment is made unless otherwise
agreed to in writing by OWNER and DESIGN/BUILDER with thirty (30) days
written notice to each other additional insured to whom a certificate of
insurance has been issued.
B. OWNER shall purchase and maintain such boiler and machinery insurance or
additional property insurance as DESIGN/BUILDER may reasonably require or
required by Laws and Regulations which will include the interests of OWNER,
DESIGN/BUILDER, Subcontractors, and other individuals and entities listed as an
insured or additional insured.
C. All the policies of insurance (and the certificates or other evidence
thereof) required to be purchased and maintained by OWNER in accordance with
paragraph 5.04 will contain a provision or endorsement that the coverage
afforded will not be cancelled or materially changed or renewal refused until at
least thirty (30) days prior written notice has been given to DESIGN/BUILDER and
to each other additional insured to whom a certificate of insurance has been
issued.
D. OWNER shall not be responsible for purchasing and maintaining any
property insurance to protect the interests of DESIGN/BUILDER, Subcontractors,
Suppliers, Engineers or others in the Work to the extent of the deductible
amounts. The risk of loss within such deductible amounts will be borne by the
party at fault for such loss and if DESIGN/BUILDER, Subcontractor or others
wishes property insurance coverage within the limits of such deductible amount,
each may purchase and maintain it at it's own expense.
E. If DESIGN/BUILDER requests in writing that other special insurance be
included in the property insurance policies provided under paragraph 5.04, OWNER
shall, if possible, include such insurance, and the cost thereof will be charged
to DESIGN/BUILDER by appropriate Change Order or Written Amendment. Prior to
commencement of the Work at the Site, OWNER shall in writing advise
DESIGN/BUILDER whether or not such other insurance has been procured by OWNER.
5.05 Waiver of Subrogation Rights
A. OWNER and DESIGN/BUILDER intend that all policies purchased in accordance
with paragraph 5.04 will protect OWNER, DESIGN/BUILDER, Engineers,
Subcontractors, others who may have a financial interest in the Project, and all
other individuals or entities listed as insureds or additional insureds in such
policies and will provide primary coverage for all losses and damages caused by
the perils or causes of loss covered thereby. All such policies shall contain
provisions to the effect that in the event of payment of any loss or damage the
insurers will have no rights of recovery against any of the insureds or
additional insureds thereunder. Each party waives all rights against the other
party and its officers, directors, employees, members, and agents for all losses
and damages caused by, arising out of
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or resulting from any of the perils or causes of loss covered by such policies
and any other property insurance applicable to the Work.
5.06 Receipt and Application of Proceeds
A. Any insured loss under the policies of insurance required by paragraph
5.04 will be adjusted with OWNER and made payable to OWNER as fiduciary for the
benefit of insureds, as their interests may appear, subject to the requirements
of paragraph 5.06.B. OWNER shall deposit in a separate account any money so
received, and shall distribute it in accordance with such agreement as the
parties in interest may reach. If no other special agreement is reached the
damaged Work shall be repaired or replaced, the moneys so received applied on
account thereof and the Work and the cost thereof covered by an appropriate
Change Order or Written Amendment.
B. OWNER as fiduciary shall have power to adjust and settle any loss with
the insurers unless one of the parties in interest shall object in writing
within fifteen (15) days after the occurrence of loss to OWNER's exercise of
this power. If such objection be made, OWNER as fiduciary shall make settlement
with the insurers in accordance with such agreement as the parties in interest
may reach. If no such agreement among the parties in interest is reached, OWNER
as fiduciary shall adjust and settle the loss with the insurers and, if required
in writing by any party in interest, OWNER as fiduciary shall give Bond for the
proper performance of such duties.
5.07 Acceptance of Insurance; Option to Replace
A. If either party has any objection to the coverage afforded by or other
provisions of the insurance required to be purchased and maintained by the other
party in accordance with this Article 5 on the basis of the other party not
complying with the Contract Documents, the objecting party shall so notify the
other party in writing within thirty (30) days after receipt of the certificates
(or other evidence requested) required by paragraph 2.03.B. OWNER and
DESIGN/BUILDER shall each provide to the other such additional information in
respect of insurance provided as the other may reasonably request. If either
party does not purchase or maintain all of the insurance required of such party
by the Contract Documents, such party shall notify the other party in writing of
such failure to purchase prior to the start of the Work, or of such failure to
maintain prior to any change in the required coverage. Without prejudice to any
other right or remedy, the other party may elect to obtain equivalent insurance
to protect such other party's interests at the expense of the party who was
supposed to provide such coverage, and a Change Order or Written Amendment shall
be issued to adjust the Contract Price accordingly.
5.08 Licensed Sureties and Insurers; Certificates of Insurance
A. All insurance required by the Contract Documents to be purchased and
maintained by OWNER or DESIGN/BUILDER shall be obtained from insurance companies
that are duly licensed or authorized in the jurisdiction in which the Project is
located to issue insurance policies for the limits and coverages so required.
Such insurance companies shall also meet such additional requirements and
qualifications as may be agreed in writing by DESIGN/BUILDER and OWNER.
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ARTICLE 6--DESIGN/BUILDER'S RESPONSIBILITIES
6.01 Design Professional Services
A. Standard of Care: DESIGN/BUILDER shall perform or furnish Design
Professional Services and related services in all phases of the Project. The
standard of care for all such services performed or furnished under this
Agreement will be the care and skill ordinarily used by members of the
engineering profession practicing under similar conditions at the same time
and locality.
B. Preliminary Design Phase: During the preliminary design phase,
DESIGN/BUILDER shall:
1. Consult with OWNER to understand OWNER's requirements for the Project and
review available data.
2. Advise OWNER as to the necessity of OWNER providing or obtaining from
others additional reports, data or services of the types provided in
paragraph 8.01.A.6.a-g and assist OWNER in obtaining such reports, data, or
services.
3. Identify and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by
DESIGN/BUILDER with whom consultation is to be undertaken in connection with
the Project.
4. Obtain such additional geotechnical and related information which it
deems necessary for performance of the Work.
5. DESIGN/BUILDER will furnish OWNER standard 110 mgpy P&ID's on the
effective date of this Agreement.
C. Final Design Phase: During the final design phase, DESIGN/BUILDER shall:
1. Prepare final Drawings showing the scope, extent, and character of the
Construction to be performed and furnished by DESIGN/BUILDER and
Specifications.
2. Provide technical criteria, written descriptions and design data required
for obtaining approvals of such governmental authorities as have
jurisdiction to review or approve the final design of the Project, and
assist OWNER in consultations with appropriate authorities.
D. Construction Phase. During Construction, DESIGN/BUILDER shall provide
Engineering and Design Professional Services as necessary to complete the
Project.
E. Operational Phase: During the operational phase, DESIGN/BUILDER shall:
1. Provide assistance in connection with the start-up, testing, refining and
adjusting of any equipment or system included in the Work.
2. Assist OWNER in training staff to operate and maintain the Project as
provided in Exhibit G.
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Other than assistance normally provided in the industry after final payment,
nothing in this paragraph 6.01.E. shall be interpreted or construed as
obligating DESIGN/BUILDER to perform or provide such assistance to OWNER after
final payment and acceptance of the Work under paragraph 13.08 below.
6.02 Supervision and Superintendence of Construction
A. DESIGN/BUILDER shall supervise, inspect and direct the Construction
competently and efficiently, devoting such attention thereto and applying such
skills and expertise as may be necessary to provide the Construction in
accordance with the Contract Documents. DESIGN/BUILDER shall be solely
responsible for the means, methods, techniques, sequences and procedures
employed for the provision of Construction. DESIGN/BUILDER shall be responsible
to see that the completed Construction complies accurately with the Contract
Documents and shall keep OWNER advised as to the quality and progress of the
Construction.
B. DESIGN/BUILDER shall keep on the Site during construction and at such
times as DESIGN/BUILDER determines are reasonably necessary to complete the Work
a competent superintendent who shall not be replaced without written notice to
OWNER except in unforeseeable circumstances. The superintendent will be
DESIGN/BUILDER's representative at the Site and shall have authority to act on
behalf of DESIGN/BUILDER.
6.03 Labor, Materials and Equipment
A. DESIGN/BUILDER shall provide competent, suitably qualified personnel to
survey and lay out the Construction and perform Construction as required by the
Contract Documents. DESIGN/BUILDER shall at all times maintain good discipline
and order at the Site.
B. Unless otherwise specified in the Contract Documents, DESIGN/BUILDER
shall furnish or cause to be furnished and assume full responsibility for
materials, equipment, labor, transportation, construction equipment and
machinery, tools, appliances, fuel, heat, telephone, sanitary facilities, and
all other facilities and incidentals necessary for the furnishing, performance,
testing, start-up and completion of the Work, excluding, specifically, power,
light, water, temporary facilities and all other items designated as OWNER's
responsibility. DESIGN/BUILDER will direct the checkout of utilities and
operations of systems and equipment.
C. All materials and equipment incorporated into the Work shall be of good
quality and new. All warranties and guarantees specifically called for by the
Contract Documents shall expressly run to the benefit of OWNER. If reasonably
required by OWNER, DESIGN/BUILDER shall furnish satisfactory evidence (including
reports of required tests) as to the kind and quality of materials and
equipment. All materials and equipment shall be applied, installed, connected,
erected, used, cleaned and conditioned in accordance with instructions of the
applicable Supplier.
6.04 Progress Schedule
A. DESIGN/BUILDER shall adhere to the progress schedule discussed in
paragraph 2.03.A as it may be adjusted from time to time.
1. DESIGN/BUILDER shall submit to OWNER for acceptance proposed adjustments
in the progress schedule that will not change the Contract Times. Such
adjustments will conform generally to the progress schedule then in effect.
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2. Proposed adjustments in the progress schedule that will change the
Contract Times shall be submitted in accordance with the requirements of
Article 11. Such adjustments may only be made by a Change Order or Written
Amendment.
6.05 Concerning Subcontractors, Suppliers and Others
A. DESIGN/BUILDER shall not employ any Subcontractor, Engineer, Supplier or
other individual or entity against whom OWNER may have reasonable objection.
DESIGN/BUILDER shall not be required to employ any Subcontractor, Engineer,
Supplier or other individual or entity to furnish or perform any of the Work
against whom DESIGN/BUILDER has reasonable objection.
B. DESIGN/BUILDER shall be fully responsible to OWNER for all acts and
omissions of the Subcontractors, Engineers, Suppliers and other individuals or
entities performing or furnishing any of the Work under a direct or indirect
contract with DESIGN/BUILDER. Nothing in the Contract Documents shall create for
the benefit of any such Subcontractor, Engineer, Supplier or other individual or
entity any contractual relationship between OWNER and any such Subcontractor,
Engineer, Supplier or other individual or entity, nor shall it create any
obligation on the part of OWNER to pay or to see to the payment of any moneys
due any such Subcontractor, Engineer, Supplier or other individual or entity
except as may otherwise be required by Laws and Regulations.
C. DESIGN/BUILDER shall be solely responsible for scheduling and
coordinating Subcontractors, Engineers, Suppliers and other individuals and
entities performing or furnishing any of the Work under a direct or indirect
contract with DESIGN/BUILDER. DESIGN/BUILDER shall require all Subcontractors,
Engineers, Suppliers and such other individuals and entities performing or
furnishing any of the Work to communicate with the OWNER through DESIGN/BUILDER.
D. All services performed or provided to and material and equipment supplied
to DESIGN/BUILDER by a Subcontractor or Supplier will be pursuant to an
appropriate Design Subagreement or Construction Subagreement between
DESIGN/BUILDER and the Subcontractor, Engineer or Supplier which specifically
binds the Subcontractor, Engineer or Supplier to the applicable terms and
conditions of the Contract Documents for the benefit of OWNER. Whenever any such
agreement is with a Subcontractor, Engineer or Supplier who is listed as an
additional insured on the property insurance provided in paragraph 5.04.A or
5.04.B, the agreement between the DESIGN/BUILDER and the Subcontractor, Engineer
or Supplier will contain provisions whereby the Subcontractor, Engineer or
Supplier waives all rights against OWNER, DESIGN/BUILDER, and all other
additional insureds for all losses and damages caused by any of the perils or
causes of loss covered by such policies and any other property insurance
applicable to the Work. If the insurers on any such policies require separate
waiver forms to be signed by any Subcontractor, Engineer or Supplier,
DESIGN/BUILDER will obtain the same.
6.06 Patent Fees and Royalties
A. DESIGN/BUILDER shall pay all license fees and royalties and assume all
costs incident to the use in the performance of the Work or the incorporation in
the Work of any invention, design, process, product or device (other than any
increased license fees, royalties and costs arising out of or resulting from a
Change Order) which is the subject of patent rights or copyrights held by
others. To the fullest extent permitted by Laws and Regulations, DESIGN/BUILDER
shall indemnify and hold harmless OWNER, from and against all claims, costs,
losses and damages (including but not limited to all
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reasonable fees and charges of engineers, architects, attorneys and other
professionals and all court or arbitration or other dispute resolution costs)
arising out of or resulting from any infringement of patent rights or copyrights
incident to the use in the performance of the Work or resulting from the
incorporation in the Work of any invention, design, process, product or device.
DESIGN/BUILDER shall, at its sole expense, have the right to defend against any
such claim. OWNER shall promptly notify DESIGN/BUILDER upon becoming aware of
any such claim. DESIGN/BUILDER, in order to avoid such claim, shall have the
right at its sole expense to substitute non-infringing invention, design,
process, product or device or to modify such infringing invention, design,
process, product or device so they become non-infringing, or to obtain at its
sole expense the necessary licenses to use the infringing invention, design,
process, product or device provided that such substituted and modified
invention, design, process, product or device shall meet all the requirements of
the Contract Documents.
6.07 Permits
A. OWNER shall obtain and pay for all necessary permits and licenses.
DESIGN/BUILDER shall assist OWNER, when necessary, in obtaining such permits and
licenses. OWNER shall pay all governmental charges and inspection fees necessary
for the prosecution of the Construction. OWNER shall pay all charges of utility
owners for connections that are necessary for the Work, and OWNER shall pay all
charges of such utility owners for capital costs related thereto.
6.08 Laws and Regulations
A. DESIGN/BUILDER shall give all notices and comply with all Laws and
Regulations of the place of the Project which are applicable to furnishing and
performance of the Work. OWNER shall not be responsible for monitoring
DESIGN/BUILDER's compliance with any Laws or Regulations.
B. If DESIGN/BUILDER performs any Work knowing or having reason to know that
it is contrary to Laws or Regulations, DESIGN/BUILDER shall bear all costs
arising therefrom.
C. If changes in Laws and Regulations after the Effective Date of the
Agreement cause an increase in the DESIGN/BUILDER's cost of or time in
performing any part of the Work, DESIGN/BUILDER may make a claim under Article 9
for a modification to the Contract Times and/or Contract Price.
6.09 Taxes
A. OWNER shall pay to DESIGN/BUILDER all sales, consumer, use, gross
receipts and other similar taxes which are applicable during the performance of
the Work and are either paid by DESIGN/BUILDER or are required to be reimbursed
by DESIGN/BUILDER to its Subcontractors, Suppliers, or Engineers.
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6.10 Use of Site and Other Areas
A. DESIGN/BUILDER shall confine construction equipment, the storage of
materials and equipment and the operations of construction workers to those
lands and areas permitted by the OWNER and other land and areas permitted by
Laws and Regulations, rights-of-way, permits and easements, and shall not
unreasonably encumber the premises with construction equipment or other
materials or equipment. DESIGN/BUILDER shall be responsible for any damage to
any such land or area, or to the owner or occupant thereof or of any adjacent
land or areas, resulting from the performance of the Construction. Should any
claim be made by any such owner or occupant because of the performance of the
Construction, DESIGN/BUILDER shall promptly settle with such other party by
negotiation or otherwise resolve the claim by arbitration or other dispute
resolution proceeding or at law. DESIGN/BUILDER shall, to the fullest extent
permitted by Laws and Regulations, indemnify and hold harmless OWNER and anyone
directly or indirectly employed by OWNER from and against all claims, costs,
losses and damages (including, but not limited to, all reasonable fees of
engineers, architects, attorneys and other professionals and court and
arbitration or other dispute resolution costs) arising out of or resulting from
any claim or action, legal or equitable, brought by any such owner or occupant
against OWNER, or any other party indemnified hereunder to the extent caused by
or based upon DESIGN/BUILDER's performance of the Construction.
B. During the performance of the Construction, DESIGN/BUILDER shall keep the
premises free from accumulations of waste materials, rubbish and other debris
resulting from the Construction. At the completion of the Construction,
DESIGN/BUILDER shall remove all waste materials, rubbish and debris from and
about the premises as well as all tools, appliances, construction equipment,
temporary construction and machinery and surplus materials. DESIGN/BUILDER shall
leave the Site clean and ready for occupancy by OWNER at Substantial Completion.
DESIGN/BUILDER shall restore to original condition all property not designated
for alteration by the Contract Documents.
C. DESIGN/BUILDER shall not load nor permit any part of any structure to be
loaded in any manner that will endanger the structure, nor shall DESIGN/ BUILDER
subject any part of the Work or adjacent property to stresses or pressures that
will endanger it.
6.11 Record Documents
A. DESIGN/BUILDER shall maintain in a safe place at the Site one record copy
of all Drawings, Specifications, Written Amendments, and Change Orders, in good
order and annotated to show all changes made during Construction. These record
documents will be available to OWNER for reference. Upon completion of the Work,
these record documents and Submittals, including a reproducible set of record
drawings, will be delivered to OWNER.
6.12 Safety and Protection
A. DESIGN/BUILDER shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the
Construction. DESIGN/BUILDER shall take necessary precautions for the safety of,
and shall provide the necessary protection to prevent damage, injury or loss to:
1. All persons on the Site or who may be affected by the Construction;
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2. All Work and materials and equipment to be incorporated therein, whether
in storage on or off the Site; and
3. Other property at the Site or adjacent thereto, including trees, shrubs,
lawns, walks, pavements, roadways, structures, utilities and underground
facilities not designated for removal, relocation or replacement in the
course of the Construction.
B. DESIGN/BUILDER shall comply with applicable Laws and Regulations of any
public body having jurisdiction for safety of persons or property or to protect
them from damage, injury or loss; and shall erect and maintain all necessary
safeguards for such safety and protection. DESIGN/BUILDER shall notify owners of
adjacent property and of underground facilities and utility owners when
prosecution of the Work may affect them, and shall cooperate with them in the
protection, removal, relocation and replacement of their property. All damage,
injury or loss to any property caused, directly or indirectly, in whole or in
part, by DESIGN/BUILDER, any Subcontractor, Supplier or any other individual or
entity directly or indirectly employed by any of them to perform or furnish any
of the Work or anyone for whose acts any of them may be liable, shall be
remedied by DESIGN/BUILDER. DESIGN/BUILDER's duties and responsibilities for
safety and for protection of the construction shall continue until (i) such time
as all the Work is completed and OWNER has issued a notice to DESIGN/BUILDER in
accordance with paragraph 13.09 that the Work is acceptable or, (ii) in the
event DESIGN/BUILDER is excluded from the Site under paragraph 13.05.B. after
Substantial Completion, the date DESIGN/BUILDER is excluded from the Site.
6.13 Safety Representative
A. DESIGN/BUILDER shall designate a qualified and experienced safety
representative whose duties and responsibilities shall be the prevention of
accidents and the maintaining and supervising of safety precautions and programs
in connection with the performance of the Work.
6.14 Hazard Communication Programs
A. DESIGN/BUILDER shall be responsible for coordinating any exchange of
material safety data sheets or other hazard communication information required
to be made available to or exchanged between or among Subcontractors at the Site
in accordance with Laws or Regulations.
6.15 Emergencies
A. In emergencies affecting the safety or protection of persons or the
Construction or property at the Site or adjacent thereto, DESIGN/BUILDER,
without special instruction or authorization from OWNER, is obligated to act to
prevent threatened damage, injury or loss. DESIGN/BUILDER shall give OWNER
prompt written notice if DESIGN/BUILDER believes that any significant changes in
the Construction or variations from the Contract Documents have been caused
thereby. If a change in the Contract Documents is required because of the action
taken by DESIGN/BUILDER in response to such an emergency, a Change Order will be
issued to document the consequences of such action.
6.16 Continuing the Work
A. DESIGN/BUILDER shall carry on the Work and adhere to the progress
schedule during all disputes or disagreements with OWNER. No Work shall be
delayed or postponed pending resolution of
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any disputes or disagreements, except as DESIGN/BUILDER and OWNER may otherwise
agree in writing or as otherwise provided in the Contract Documents.
6.17 DESIGN/BUILDER's General Warranty and Guarantee
A. DESIGN/BUILDER warrants and guarantees to OWNER that all Construction
will be in accordance with the Contract Documents and will not be defective.
DESIGN/BUILDER's warranty and guarantee hereunder excludes defects or damage
caused by:
1. Abuse, modification or improper maintenance or operation by persons other
than DESIGN/BUILDER, Subcontractors or Suppliers; or
2. Normal wear and tear under normal usage.
The warranty set forth in Exhibit I and not this paragraph 6.17 shall apply to
the items set forth in such Exhibit.
B. DESIGN/BUILDER's obligation to perform and complete the Work in
accordance with the Contract Documents shall be absolute. Except as provided in
paragraph 12.08, no action by OWNER will constitute an acceptance of Work that
is not in accordance with the Contract Documents or a release of
DESIGN/BUILDER's obligation to perform the Work in accordance with the Contract
Documents, including but not limited to the following:
1. Observations by OWNER;
2. The making of any progress or final payment;
3. The issuance of a certificate of Substantial Completion;
4. Use or occupancy of the Work or any part thereof by OWNER;
5. Any acceptance by OWNER or any failure to do so;
6. Any inspection, test or approval by others; or
7. Any correction of defective Construction by OWNER.
C. DESIGN/BUILDER shall, at final completion, assign to OWNER all
manufacturer's warranties for materials and equipment incorporated into the
Project; provided, however, in the event of a claim by OWNER against
DESIGN/BUILDER, OWNER shall use its best efforts to cooperate with
DESIGN/BUILDER in the enforcement of any applicable warranty.
6.18 Indemnification
OWNER and DESIGN/BUILDER are and will be throughout the term of this
Agreement be independent contractors as to each other. Each party recognizes
that it shall be solely responsible for its own conduct, including without
limitation its own fault, as to any aspect of the Agreement. In the event any
claim is made or any action is filed by a third party arising out of this
Agreement or the services to be performed under it, the parties anticipate that
each will diligently defend said claim or action on its own
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behalf, and will pay, settle, or otherwise promptly dispose of any demand or
judgment against it consistent with the provisions of the Kansas comparative
negligence statute, K.S.A. ss.60-258a, in effect on the date of this Agreement.
In the event either party is made to respond in damages for the fault of the
other party, then the other party agrees to indemnify and hold harmless the
first party (including its officers, directors, employees, and agents) from any
payment that it has to make, including without limitation the payment of
reasonable attorneys' fees incurred in resisting, settling, or otherwise
disposing of the demand, on account of the other party's fault. In regard to the
indemnity obligation in this paragraph 6.18 or any other provision of the
General Conditions, neither party shall make a payment for which indemnity will
be sought from the other party without first providing such other party written
notice of the claim and an opportunity to assume the defense.
ARTICLE 7--OTHER CONSTRUCTION
7.01 Related Construction at Site
A. OWNER may perform other work related to the Project at the Site by
OWNER's own forces, or let other direct contracts therefor or have other work
performed by utility owners. Written notice thereof will be given to
DESIGN/BUILDER prior to starting any such other work. OWNER shall be responsible
for such other work including, without limitation, maintaining and supervising
safety precautions and programs in connection with such other work.
B. DESIGN/BUILDER shall afford each other contractor who is a party to such
a direct contract and each utility owner (and OWNER, if OWNER is performing the
additional work with OWNER's employees) proper and safe access to the Site and a
reasonable opportunity for the introduction and storage of materials and
equipment and the execution of such other work and shall properly connect and
coordinate the Construction with theirs. DESIGN/BUILDER shall do all cutting,
fitting and patching of the Work that may be required to make its several parts
come together properly and integrate with such other work. DESIGN/BUILDER shall
not endanger any work of others by cutting, excavating or otherwise altering
their work and will only cut or alter their work with the written consent of
OWNER and the others whose work will be affected.
C. If the proper execution or results of any part of DESIGN/BUILDER's Work
depends upon work performed or services provided by others under this Article 7,
DESIGN/BUILDER shall inspect such other work and appropriate instruments of
service and promptly report to OWNER in writing any delays, defects or
deficiencies in such other work or services that render it unavailable or
unsuitable for the proper execution and results of DESIGN/BUILDER's Work.
DESIGN/BUILDER's failure so to report will constitute an acceptance of such
other work as fit and proper for integration with DESIGN/BUILDER's Work except
for latent or nonapparent defects and deficiencies in such other work.
ARTICLE 8--OWNER'S RESPONSIBILITIES
8.01 General
A. OWNER shall do the following in a timely manner so as not to delay the
services of DESIGN/BUILDER.
1. Designate in writing a person to act as OWNER's representative with
respect to the services to be rendered under the Agreement.
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2. Provide such legal services as OWNER may require with regard to land use
and governmental permitting issues pertaining to the Project including any
such land use or governmental permitting issues that may be raised by
DESIGN/BUILDER.
3. If requested in writing by DESIGN/BUILDER, furnish reasonable evidence
satisfactory to DESIGN/BUILDER, that sufficient funds are available and
committed for the entire cost of the Project. Unless such reasonable
evidence is furnished, DESIGN/BUILDER is not required to commence or
continue any Work, or may, if such evidence is not presented within a
reasonable time, stop Work upon fifteen (15) days' notice to the OWNER.
4. Make payments to DESIGN/BUILDER promptly when they are due as provided in
Article 13.
5. Furnish lands and easements as set forth in paragraph 4.01.
6. Furnish to DESIGN/BUILDER, as required for performance of
DESIGN/BUILDER's services the following, all of which DESIGN/BUILDER may use
and rely upon in performing services under this Agreement:
a. Environmental assessment and impact statements;
b. Property, boundary, easement, right-of-way, topographic and
utility surveys;
c. Property descriptions;
d. Zoning, deed and other land use restrictions;
e. Engineering surveys to establish reference points for design and
construction which in DESIGN/BUILDER's judgment are necessary to enable
DESIGN/BUILDER to proceed with the Work;
f. Assistance in filing documents required to obtain necessary
approvals of governmental authorities having jurisdiction over the
Project; and
g. Subsurface data.
7. Provide information known to or in the possession of OWNER relating to
the presence of materials and substances at the site which could create a
Hazardous Condition.
8. Perform all other items designated as OWNER's responsibilities in the
Contract Documents.
8.02 Scope of OWNER's Safety and Hazardous Waste Responsibilities
A. OWNER shall not supervise, direct or have control or authority over, nor
be responsible for, DESIGN/BUILDER's means, methods, techniques, sequences or
procedures of Construction or the safety precautions and programs incident
thereto, or for any failure of DESIGN/BUILDER to comply with Laws and
Regulations applicable to the furnishing or performance of the Work. OWNER will
not be responsible for DESIGN/BUILDER's failure to perform or furnish the Work
in accordance with the Contract Documents.
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ARTICLE 9--CHANGES IN THE WORK; CLAIMS
9.01 General--Rights and Obligations
A. Without invalidating the Agreement, OWNER may, at any time or from time
to time, request additions, deletions or revisions in the Work within the
general scope of the contract by a Written Amendment or a Change Order. If
DESIGN/BUILDER agrees to such Written Amendment or Change Order, which agreement
shall not be unreasonably withheld, DESIGN/BUILDER shall promptly proceed with
the Work involved which will be performed under the applicable provisions of the
Contract Documents (except as otherwise specifically provided).
9.02 Notice of Intent to Make Claim
A. If OWNER and DESIGN/BUILDER are unable to agree as to the extent, if any,
of an adjustment in the Contract Price or an adjustment of the Contract Times
that should be allowed as a result of any order of OWNER pursuant to paragraph
9.01.A or other occurrence for which the Contract Documents provide that such
adjustment(s) may be made, a claim may be made therefor. Written notice of
intent to make such a claim shall be submitted to the other party promptly and
in no event more than thirty (30) days after the start of the occurrence or
event giving rise to the claim.
9.03 Claim Documentation
A. Substantiating documentation shall be submitted by the claiming party
within thirty (30) days after delivery of the notice required by paragraph
9.02.A.
9.04 Decision
A. The other party shall render a decision on the claim no more than thirty
(30) days after the receipt of the substantiating documentation required by
paragraph 9.03.A. This decision will be final and binding unless the claiming
party gives notice of intention to exercise its rights under Article 15 within
thirty (30) days of receipt of the decision and exercises such rights within
thirty (30) days of giving the notice of intent.
9.05 Time Limit Extension
A. The time limits of paragraphs 9.03.A and 9.04.A may be extended by mutual
agreement.
9.06 Exceptions
A. DESIGN/BUILDER shall not be entitled to an increase in the Contract Price
with respect to any Work performed that is not contemplated by the Contract
Documents as amended, modified and supplemented as provided in paragraph 3.03.
9.07 Execution of Change Orders
A. OWNER and DESIGN/BUILDER shall execute appropriate Change Orders or
Written Amendments covering:
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1. changes in the Work which are (i) ordered by OWNER pursuant to paragraph
9.01, (ii) required because of acceptance of defective Construction under
paragraph 12.08 or correcting defective Work under paragraph 12.09 or (iii)
agreed to by the parties; and
2. changes in the Contract Price or Contract Times which are agreed to by
the parties.
ARTICLE 10--CHANGE OF CONTRACT PRICE
10.01 General
A. The Contract Price constitutes the total compensation (subject to
authorized adjustments) payable to DESIGN/BUILDER for performing the Work.
B. The Contract Price may only be changed by a Change Order or by a Written
Amendment. Any claim for an adjustment in the Contract Price shall be based
on written notice delivered by the party making the claim to the other party
promptly in accordance with paragraph 9.02.A.
C. The value of any Work covered by a Change Order or of any claim for an
increase or decrease in the Contract Price will be determined as follows:
1. By a mutually agreed lump sum (which may include an allowance for
overhead and profit not necessarily in accordance with paragraph 10.02); or
2. Where agreement to a lump sum is not reached under paragraph 10.01.C.1,
on the basis of the Cost of the Work (determined as provided in paragraph
10.02) plus a DESIGN/BUILDER's Fee for overhead and profit (determined as
provided in paragraph 10.02.C).
10.02 Cost of the Work
A. Costs Included: The term Cost of the Work means the sum of all costs
necessarily incurred and paid by DESIGN/BUILDER in the proper performance of
work authorized only by a Change Order or Written Amendment (together "Change
Order Work"). Except as otherwise may be agreed to in writing by OWNER, such
costs shall be in amounts no higher than those prevailing in the locality of the
Project, shall include only the following items and shall not include any of the
costs itemized in paragraph 10.02.B:
1. Payroll costs for employees in the direct employ of DESIGN/BUILDER in the
performance of the Change Order Work under the then current schedule of job
classifications and hourly rates of DESIGN/BUILDER.
2. Cost of all materials and equipment furnished and incorporated in the
Change Order Work, including costs of transportation and storage thereof,
and Suppliers' field services required in connection therewith.
3. Payments made by DESIGN/BUILDER to Subcontractors for Change Order Work
performed or furnished by Subcontractors.
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4. Payments made by DESIGN/BUILDER to Engineers (not employees of
DESIGN/BUILDER or its affiliates) for Design Professional Services provided
or furnished by Engineers under a Design Subagreement for Change Order Work.
5. Costs of special consultants (including but not limited to testing
laboratories and surveyors, but excluding employees of DESIGN/BUILDER or its
affiliates) employed for services specifically related to Change Order Work.
6. Supplemental costs including the following items:
a. The proportion of necessary transportation, travel and subsistence
expenses of DESIGN/BUILDER's employees incurred in discharge of duties
connected with Change Order Work.
b. Cost, including transportation and maintenance, of all materials,
supplies, equipment, machinery, appliances, office and temporary
facilities at the Site and hand tools not owned by the workers, which
are consumed in the performance of Change Order Work, and cost less
market value of such items used but not consumed which remain the
property of DESIGN/BUILDER.
c. Rentals of all Work equipment and machinery and the parts thereof
whether rented from DESIGN/BUILDER or others in accordance with rental
agreements approved by OWNER, and the costs of transportation,
loading, unloading, installation, dismantling and removal thereof--all
in accordance with the terms of said rental agreements. The rental of
any such equipment, machinery or parts shall cease when the use
thereof is no longer necessary for Change Order Work.
d. Sales, consumer, use or similar taxes related to Change Order Work,
paid by DESIGN/BUILDER or required to be reimbursed by DESIGN/BUILDER
to its Subcontractors, Suppliers, or Engineers.
B. Costs Excluded: The term Cost of the Work shall not include any of the
following:
1. Payroll costs and other compensation of DESIGN/BUILDER's officers,
executives, principals (of partnerships and sole proprietorships), general
managers, engineers, architects, estimators, attorneys, auditors,
accountants, purchasing and contracting agents, expediters, timekeepers,
clerks and other personnel employed by DESIGN/BUILDER whether at the Site or
in DESIGN/BUILDER's principal or a branch office for general administration
of the Work and not specifically included in the then current schedule of
job classifications referred to in paragraph 10.02.A.1 -- all of which are
to be considered administrative costs covered by the DESIGN/BUILDER's fee.
2. Expenses of DESIGN/BUILDER's principal and branch offices other than
DESIGN/BUILDER's office at the Site.
3. Any part of DESIGN/BUILDER's capital expenses, including interest on
DESIGN/BUILDER's capital employed for the Work and charges against
DESIGN/BUILDER for delinquent payments.
4. Costs due to the negligence of DESIGN/BUILDER, any Subcontractor, or
anyone directly or indirectly employed by any of them or for whose acts any
of them may be liable, including but not limited to, the correction of
defective Work, disposal of materials or equipment wrongly supplied and
making good any damage to property.
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5. Other overhead or general expense costs of any kind and the costs of any
item not specifically and expressly included in paragraph 10.02.A.
C. Fee:
1. A mutually agreed fee or, in the event the parties can not agree
upon a fee, DESIGN/BUILDER's fee for overhead and profit on Change
Orders priced by paragraph 10.01.C.2 (whether additive or deductive)
shall be *%) of the Cost of the Change Order Work for subcontracts,
materials and equipment.
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
2. When both additions and credits are involved in any one change, the
adjustment in DESIGN/BUILDER's fee shall be computed on the basis of
the net change in accordance with paragraph 10.02.C.1 above.
D. Documentation: Whenever the cost of any Work is to be determined pursuant
to paragraphs 10.02.A and 10.02.B, DESIGN/BUILDER will establish and maintain
records thereof in accordance with generally accepted accounting practices and
submit in a form acceptable to OWNER an itemized cost breakdown together with
supporting data.
ARTICLE 11--CHANGE OF CONTRACT TIMES
11.01 General
A. The Contract Times may only be changed by a Change Order or a Written
Amendment. Any claim for an adjustment of the Contract Times shall be based on
written notice pursuant to paragraph 9.02.
B. All Contract Times are of the essence of the Agreement.
11.02 Time Extensions
A. Where DESIGN/BUILDER is prevented from completing any part of the Work
within the Contract Times due to delay beyond the control of DESIGN/BUILDER, the
Contract Times will be extended in an amount equal to the time lost due to such
delay if a claim is made therefor as provided in Article 9. Delays beyond the
control of DESIGN/BUILDER shall include, but not be limited to, acts or neglect
by OWNER, governmental agencies, acts or neglect of utility owners or other
contractors performing other construction work as contemplated by Article 7,
fires, floods, epidemics, abnormal weather conditions, acts of God, strikes,
lockouts or other circumstances beyond the control of DESIGN/BUILDER that give
rise to a shortage of labor, materials, equipment, transportation or utilities.
Delays attributable to and within the control of a Subcontractor or Supplier
shall be deemed to be delays within the control of DESIGN/BUILDER.
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B. Nothing in this paragraph 11.02 bars a change in Contract Price pursuant
to Article 10 to compensate for the direct costs incurred by DESIGN/BUILDER due
to delay, interference, or disruption directly attributable to actions or
inactions of OWNER. However, OWNER shall not be liable to DESIGN/BUILDER for
costs or damages arising out of or resulting from (i) delays caused by or within
the control of DESIGN/BUILDER, or (ii) delays beyond the control of both parties
including but not limited to fires, floods, epidemics, abnormal weather
conditions, acts of God or acts or neglect by governmental agencies, utility
owners, or other contractors performing other work as contemplated by Article 7.
ARTICLE 12--TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF
DEFECTIVE CONSTRUCTION
12.01 Notice of Defects
A. Each party shall give the other prompt written notice of all defective
Construction of which such party has actual knowledge. All defective
Construction may be rejected, corrected or accepted as provided in this Article
12.
12.02 Access to Construction
A. Upon reasonable notice to DESIGN/BUILDER, OWNER, other representatives
and personnel of OWNER, independent testing laboratories and governmental
agencies with jurisdictional interests will have access to the Construction at
the Site at reasonable times for their observation, inspecting and testing.
DESIGN/BUILDER shall provide them proper and safe conditions for such access and
advise them of DESIGN/BUILDER's Site safety procedures and programs so that they
may comply therewith as applicable.
12.03 Tests and Inspections
A. If the Contract Documents or Laws or Regulations of any public body
having jurisdiction require any part of the Construction specifically to be
inspected, tested or approved, DESIGN/BUILDER shall assume full responsibility
for arranging and obtaining such inspections, tests or approvals, pay all costs
in connection therewith, and furnish OWNER the required certificates of
inspection or approval. DESIGN/BUILDER shall also be responsible for arranging
and obtaining and shall pay all costs in connection with any inspections, tests
or approvals required for OWNER's acceptance of materials or equipment to be
incorporated in the Construction or of materials, mix designs, or equipment
submitted for approval prior to DESIGN/BUILDER's purchase thereof for
incorporation in the Construction. Nothing in this paragraph shall be
interpreted or construed as obligating DESIGN/BUILDER to obtain, furnish or pay
the costs of any permit, inspection, test or approval required by the applicable
State or the United States Environmental Protection Agency for the construction
or operation of the Project (including, without limitation, any atmospheric
emissions compliance reports), all of which shall be the responsibility of
OWNER.
B. DESIGN/BUILDER shall give OWNER reasonable notice of the planned schedule
for all required inspections, tests or approvals if requested in writing by
OWNER.
C. If any Construction (or the construction work of others) that is required
to be inspected, tested or approved is covered by DESIGN/BUILDER without written
concurrence of OWNER, it must, if requested by OWNER, be uncovered for
observation at DESIGN/BUILDER's expense unless
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DESIGN/BUILDER has given OWNER timely notice of DESIGN/BUILDER's intention to
cover the same and OWNER has not acted with reasonable promptness in response to
such notice.
12.04 Uncovering Construction
A. If any Construction is covered contrary to the written request of OWNER,
it must, if requested by OWNER, be uncovered for OWNER's observation and
recovered at DESIGN/BUILDER's expense.
B. If OWNER considers it necessary or advisable that covered Construction be
observed by OWNER or inspected or tested by others, DESIGN/BUILDER, at OWNER's
request, shall uncover, expose or otherwise make available for observation,
inspection or testing as OWNER may require, that portion of the Construction in
question, furnishing all necessary labor, material and equipment. If it is found
that such Construction is defective, DESIGN/BUILDER shall pay all costs caused
by or resulting from such uncovering, exposure, observation, inspection and
testing (including but not limited to all reasonable fees and charges of
engineers and other professionals) and OWNER shall be entitled to an appropriate
decrease in the Contract Price, and, if the parties are unable to agree as to
the amount thereof, may make a claim therefor as provided in Article 9. If
however, such Construction is not found to be defective, DESIGN/BUILDER shall be
allowed an increase in the Contract Price directly attributable to such
uncovering, exposure, observation, inspection, testing, replacement and rework;
and, if the parties are unable to agree as to the amount or extent thereof,
DESIGN/BUILDER may make a claim therefor as provided in Article 9.
12.05 OWNER May Stop the Construction
A. If the Construction is defective, or DESIGN/BUILDER fails to supply
sufficient skilled workers or suitable materials or equipment, or fails to
furnish or perform the Construction in such a way that the completed
Construction will conform to the Contract Documents, OWNER may order
DESIGN/BUILDER to stop Construction or any portion thereof, until the cause for
such order has been eliminated; however, this right of OWNER to stop
Construction will not give rise to any duty on the part of OWNER to exercise
this right for the benefit of DESIGN/BUILDER or any other party.
12.06 Correction or Removal of Defective Construction
A. Prior to acceptance and final payment under paragraph 13.09, OWNER will
have authority to disapprove or reject defective Construction and will have
authority to require special inspection or testing of the Construction whether
or not the Construction is fabricated, installed or completed. DESIGN/BUILDER
shall promptly, either correct all defective Construction, whether or not
fabricated, installed or completed, or, if the Construction has been rejected by
OWNER, remove it from the Site and replace it with non-defective Construction.
DESIGN/BUILDER shall bear all costs of such correction or removal (including but
not limited to reasonable fees and charges of engineers, architects, attorneys
and other professionals, all court or arbitration or other dispute resolution
costs, and all costs of repair or replacement of work of others) made necessary
thereby. Nothing in this paragraph shall be interpreted or construed as
requiring DESIGN/BUILDER to correct or remove and replace defective Construction
accepted by OWNER pursuant to paragraph 12.08 below.
12.07 Correction Period
A. If within one (1) year after the date of Substantial Completion or such
longer period of time as may be prescribed by Laws or Regulations or by the
terms of any applicable special guarantee required by
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the Contract Documents or by any specific provision of the Contract Documents,
any Construction is found to be defective, DESIGN/BUILDER shall promptly,
without cost to OWNER and in accordance with OWNER's written instructions, (i)
correct such i Construction, or, if it has been rejected by OWNER,
remove it from the Site and replace it with Construction that is not defective,
and (ii) satisfactorily correct or remove and replace any damage to other
Construction or the work of others resulting therefrom. If DESIGN/BUILDER does
not promptly comply with the terms of such instructions, or in an emergency
where delay would cause serious risk of loss or damage, OWNER may have the
defective Construction corrected or the rejected Construction removed and
replaced, and all costs and damages caused by or resulting from such removal and
replacement (including but not limited to all reasonable fees and charges of
engineers, architects, attorneys and other professionals, all court or
arbitration or other dispute resolution costs, and all costs of repair or
replacement of work of others) will be paid by DESIGN/BUILDER subject to the
provisions of paragraph 16.06 below. Nothing in this paragraph shall be
interpreted or construed as requiring DESIGN/BUILDER to correct or remove and
replace defective Construction accepted by OWNER pursuant to paragraph 12.08
below. Defective equipment or parts thereof shall be covered by the warranty set
forth in Exhibit I attached hereto and not the provisions of this paragraph
12.07.
B. Where defective Construction (and damage to other Construction resulting
therefrom) has been corrected, removed or replaced under this paragraph 12.07,
the correction period hereunder with respect to such Construction will be
extended for an additional period of one (1) year after such correction or
removal and replacement has been satisfactorily completed.
12.08 Acceptance of Defective Construction
A. If, instead of requiring correction or removal and replacement of
defective Construction, OWNER prefers to accept it, OWNER may do so. If any such
acceptance occurs prior to final payment, a Change Order will be issued
incorporating the necessary revisions in the Contract Documents with respect to
the Construction; and OWNER shall be entitled to an appropriate decrease in the
Contract Price, and, if the parties are unable to agree as to the amount
thereof, OWNER may make a claim therefor as provided in Article 15, subject to
the provisions of paragraph 16.06 below. If the acceptance occurs after final
payment, an appropriate amount will be paid by DESIGN/BUILDER to OWNER, and, if
the parties are unable to agree as to the amount thereof, OWNER may make a claim
therefor as provided in Article 15, subject to the provisions of paragraph 16.06
below. Notwithstanding the foregoing, any defective Construction known by OWNER
and not disclosed to DESIGN/BUILDER at the time of acceptance and final payment
under paragraph 13.09 shall be deemed to be accepted by OWNER and DESIGN/BUILDER
shall have no obligation to correct, or remove and replace such defect, or make
any payment to OWNER with respect thereto.
12.09 Identification of Punch List Items
A. OWNER shall identify in writing to DESIGN/BUILDER, on or before the date
that is forty-five (45) days after Substantial Completion, any and all Punch
List Items to be completed or corrected by DESIGN/BUILDER. DESIGN/BUILDER shall
not be required to complete or correct any Punch List Items identified by OWNER
after such forty-five (45) day period.
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ARTICLE 13--PAYMENTS TO DESIGN/BUILDER AND COMPLETION
13.01 Schedule of Values
A. The Schedule of Values established as provided in paragraph 2.03 will
serve as the basis for progress payments and the form of Application for Payment
will be substantially similar to Exhibit J.
13.02 Application for Progress Payment
A. By the tenth day of each month during the Work DESIGN/BUILDER shall
submit to OWNER for review and approval an Application for Payment filled out
and signed by DESIGN/BUILDER covering the Work completed as of the date of the
Application and accompanied by such supporting documentation as is required by
the Contract Documents. If payment is requested on the basis of materials and
equipment not incorporated in the Work but delivered and suitably stored at the
Site or at another location agreed to in writing, the Application for Payment
shall also be accompanied by a xxxx of sale, invoice or other documentation
warranting that OWNER has received the materials and equipment free and clear of
all Liens and evidence that the materials and equipment are covered by
appropriate property insurance and other arrangements to protect OWNER's
interest therein. The amount of retainage with respect to progress payments will
be as stipulated in the Agreement.
B. With each Application for Payment, DESIGNBUILDER shall submit interim
lien waivers for all subcontractors and first tier suppliers with a contract
value in excess of $5,000.00. The interim lien waivers shall be effective
through the immediately preceding payment. OWNER may withhold from any progress
payment the amount applicable to any lien waivers not received for any preceding
Application for Payment for which payment was made by OWNER.
13.03 DESIGN/BUILDER's Warranty of Title
A. DESIGN/BUILDER warrants and guarantees that title to all construction
materials and equipment covered by any Application for Payment, whether
incorporated in the Project or not, will pass to OWNER no later than the time of
payment free and clear of all Liens. This paragraph 13.03.A does not apply to
any documents covered by paragraph 3.04.
13.04 Progress Payments
A. Progress payments shall be made by the OWNER to DESIGN/BUILDER according
to the following procedure:
1. OWNER will, within ten (10) days of receipt of each Application for
Payment, either indicate in writing its acceptance of the Application and
state that the Application is being processed for payment, or return the
Application to DESIGN/BUILDER indicating in writing its reasons for refusing
to accept the Application and the exact amount(s) in dispute. All undisputed
amounts will become due and be paid by OWNER to DESIGN/BUILDER not more than
ten (10) days after OWNER's acceptance or rejection of such Application, as
the case may be.
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2. If OWNER should fail to pay DESIGN/BUILDER at the time the payment of
any amount becomes due, then DESIGN/BUILDER may, at any time thereafter,
upon serving written notice that DESIGN/BUILDER will stop the Work within
seven (7) days after receipt of the notice by OWNER, and after such seven
(7) day period, stop the Work until payment of the amount owing has been
received, including interest thereon.
3. Payments due but unpaid shall bear interest at the rate specified in the
Agreement. If OWNER pays to DESIGN/BUILDER any disputed amount pursuant to
paragraph 13.04.A.2 and it is determined pursuant to Article 15 that such
amount was not due and payable, then DESIGN/BUILDER shall refund such amount
to OWNER with interest thereon at the rate specified in the Agreement.
4. No Progress Payment nor any partial or entire use or occupancy of the
Project by the OWNER shall constitute an acceptance of any Work not in
accordance with the Contract Documents.
B. OWNER may refuse to make the whole or any part of any such payment or,
because of subsequently discovered evidence or the results of subsequent
inspections or tests, nullify any previous payment, to the extent that is
reasonably necessary to protect OWNER from loss because:
1. The Work is defective, or completed Work has been damaged, requiring
correction or replacement;
2. The Contract Price has been reduced by Written Amendment or Change Order;
3. OWNER has been required to correct defective Work or complete Work in
accordance with paragraph 12.07.A;
4. OWNER has actual knowledge of the occurrence of any of the events
enumerated in paragraphs 14.02.A.1 through A.3 inclusive;
5. Claims have been made against OWNER on account of DESIGN/BUILDER's
performance or furnishing of the Work;
6. The provisions of paragraph 13.02.B are applicable; or
7. Liens have been filed in connection with the Work, except where
DESIGN/BUILDER has delivered a specific Bond satisfactory to OWNER to secure
the satisfaction and discharge of such Liens.
13.05 Substantial Completion
A. When DESIGN/BUILDER considers the Construction ready for its intended use
DESIGN/BUILDER shall notify OWNER in writing that the Construction is
substantially complete (except for items specifically listed by DESIGN/BUILDER
as incomplete). Within a reasonable time thereafter, OWNER will prepare and
deliver to DESIGN/BUILDER a certificate of Substantial Completion. There shall
be attached to the certificate a list of Punch List Items to be completed or
corrected before final payment. At the time of delivery of the certificate of
Substantial Completion OWNER will deliver to DESIGN/BUILDER (i) a written
determination as to division of responsibilities pending final payment between
OWNER and DESIGN/BUILDER with respect to security, operation,
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safety, maintenance, heat, utilities, insurance and warranties and guarantees,
and (ii) the payment required by section 4.01.B.2. of the Agreement.
B. OWNER will have the right to exclude DESIGN/BUILDER from the Site after
the date of Substantial Completion, but OWNER will allow DESIGN/BUILDER
reasonable access to complete or correct items on the list of Punch List Items
to be completed and the seven-day performance test described in Exhibit A.
13.06 Final Inspection
A. Upon written notice from DESIGN/BUILDER that the entire Construction or
an agreed portion thereof is complete, OWNER will make a final inspection with
DESIGN/BUILDER and will notify DESIGN/BUILDER in writing of all particulars in
which this inspection reveals that the Construction is incomplete or defective.
DESIGN/BUILDER shall immediately take such measures as are necessary to complete
such Construction or remedy such deficiencies.
13.07 Final Application for Payment
A. After DESIGN/BUILDER has completed all such corrections to the
satisfaction of OWNER and delivered in accordance with the Contract Documents
all interim maintenance and operating instructions and as-built drawings (with
final copies of each document to be delivered within ninety (90) days after
final payment), schedules, guarantees, certificates or other evidence of
insurance required by paragraph 5.02.B, certificates of inspection, marked-up
record documents (as provided in paragraph 6.11) and other documents,
DESIGN/BUILDER may make application for final payment following the procedure
for progress payments. The final Application for Payment shall be accompanied
(unless previously delivered) by: (i) all documentation called for in the
Contract Documents, including but not limited to the evidence of insurance
required by subparagraph 5.02.B.7, and (ii) complete and legally effective
releases or waivers of all Liens arising out of or filed in connection with the
Work. In lieu of such releases or waivers of Liens and as approved by OWNER,
DESIGN/BUILDER may furnish receipts or releases in full and an affidavit of
DESIGN/BUILDER that: (i) the releases and receipts include all labor, services,
material and equipment for which a Lien could be filed, and (ii) all payrolls,
material and equipment bills and other indebtedness connected with the Work for
which OWNER or the Site might in any way be responsible have been paid or
otherwise satisfied. If any Subcontractor or Supplier fails to furnish such a
release or receipt in full, DESIGN/BUILDER may furnish a Bond or other
collateral satisfactory to OWNER to indemnify OWNER against any Lien.
13.08 Final Payment and Acceptance
A. If OWNER is satisfied that the Work has been completed and
DESIGN/BUILDER's other obligations under the Contract Documents have been
fulfilled, OWNER will, within ten (10) days after receipt of the final
Application for Payment, give written notice to DESIGN/BUILDER that the Work is
acceptable. Otherwise, OWNER will return the Application to DESIGN/BUILDER,
indicating in writing the reasons for refusing to process final payment, in
which case DESIGN/BUILDER shall make the necessary corrections and resubmit the
Application. Thirty (30) days after the presentation to OWNER of the acceptable
Application and accompanying documentation, in appropriate form and substance
and with OWNER's notice of acceptability, the remaining Contract Price less $*
will become due and will be paid by OWNER to DESIGN/BUILDER. The $* will become
due upon receipt by OWNER of a satisfactory verbal or written emissions
compliance report from a third party mutually selected by OWNER and
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DESIGN/BUILDER confirming regulatory compliance of the air emissions performance
tests prescribed by the applicable Department of Environmental Quality or
similar agency for the State of Kansas.
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
B. If, through no fault of DESIGN/BUILDER, final completion of the Work is
significantly delayed, OWNER shall, upon receipt of DESIGN/BUILDER's final
Application for Payment, and without terminating the Agreement, make payment of
the balance due for that portion of the Work fully completed and accepted. Such
payment shall be made under the terms and conditions governing final payment,
except that it shall not constitute a waiver of claims.
13.09 Waiver of Claims
A. The making and acceptance of final payment will constitute:
1. A waiver of all claims by OWNER against DESIGN/BUILDER, except claims
arising from unsettled Liens, from defective Construction appearing after
final inspection pursuant to paragraph 13.06, from failure to comply with
the Contract Documents or the terms of any special guarantees specified
therein, or from DESIGN/BUILDER's continuing obligations under the Contract
Documents; and
2. a waiver of all claims by DESIGN/BUILDER against OWNER other than those
previously made in writing and still unsettled.
ARTICLE 14--SUSPENSION OF WORK AND TERMINATION
14.01 Owner May Suspend Work
A. At any time and without cause, OWNER may suspend the Work or any portion
thereof for a period of not more than ninety (90) days by notice in writing to
DESIGN/BUILDER which will fix the date on which Work will be resumed.
DESIGN/BUILDER shall resume the Work on the date so fixed. DESIGN/BUILDER may be
allowed an adjustment in the Contract Price or an extension of the Contract
Times, or both, directly attributable to any such suspension if DESIGN/BUILDER
makes a claim therefor as provided in Article 9.
14.02 OWNER May Terminate for Cause
A. The occurrence of any one or more of the following events justifies
termination for cause:
1. DESIGN/BUILDER persistently fails to perform the Work in accordance with
the Contract Documents (including, but not limited to, failure to supply
sufficient skilled workers or suitable materials or equipment or failure to
adhere to the progress schedule established under paragraph 2.03.A as
revised from time to time.)
2. DESIGN/BUILDER intentionally or willfully disregards Laws or Regulations
of any public body having jurisdiction.
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3. DESIGN/BUILDER otherwise breaches or violates in any material way any
provisions of the Contract Documents.
4. DESIGN/BUILDER becomes financially insolvent or files a voluntary
petition of bankruptcy, or an involuntary petition of bankruptcy is filed
that is not dismissed within ninety (180) days after the date of such
filing.
B. OWNER may, after giving DESIGN/BUILDER written notice of the occurrence
of an event in paragraph 14.02.A and twenty (20) days therefrom to remedy such
event (or, if such event is not capable of being remedied within such twenty
(20) days, such number of days as is reasonably needed to remedy such event),
and to the extent permitted by Laws and Regulations, terminate the services of
DESIGN/BUILDER, exclude DESIGN/BUILDER from the Site and take possession of the
Work incorporate in the Work all materials and equipment stored at the Site or
elsewhere for which OWNER has paid DESIGN/BUILDER and finish the Work as OWNER
may deem expedient. In such case DESIGN/BUILDER shall not be entitled to receive
any further payment other than reimbursement for DESIGN/BUILDER's payments to
Subcontractors and Suppliers for labor, services, equipment and materials prior
to the date of termination, but only to the extent not previously paid by OWNER.
If the unpaid balance of the Contract Price exceeds all reasonable costs
incurred by OWNER resulting from completing the Work (including but not limited
to all reasonable fees and charges of engineers, architects, attorneys and other
professionals and all court or arbitration or other dispute resolution costs)
such excess will be paid to DESIGN/BUILDER. If all reasonable costs incurred by
OWNER to complete the Work (including but not limited to all reasonable fees and
charges of engineers, architects, attorneys and other professionals and all
court or arbitration or other dispute resolution costs) exceed the unpaid
balance of the Contract Price, DESIGN/BUILDER shall pay the difference to OWNER
subject to the provisions of paragraph 16.06 below. When exercising any rights
or remedies under this paragraph OWNER shall be required to obtain a reasonable
price for the Work performed.
C. Where DESIGN/BUILDER's services have been so terminated by OWNER, the
termination will not affect any rights or remedies of OWNER against
DESIGN/BUILDER then existing or which may thereafter accrue. Any payment to
DESIGN/BUILDER by OWNER will not release DESIGN/BUILDER from liability.
D. Nothing in this paragraph shall be interpreted or construed as requiring
DESIGN/BUILDER to perform any additional services after such termination
including, without limitation, the creation of any drawings, specifications or
any other document necessary to complete the Work.
14.03 DESIGN/BUILDER May Stop Work or Terminate
A. If, through no act or fault of DESIGN/BUILDER, the Work is suspended for
a period of more than ninety (90) days by OWNER or under an order of court or
other public authority, or OWNER fails to pay DESIGN/BUILDER any undisputed
amount due under the Contract Documents within 30 days after Application for
Payment is submitted to OWNER, then DESIGN/BUILDER may, upon seven (7) days
written notice to OWNER, and provided OWNER does not remedy such suspension or
failure within that time, terminate the Agreement and recover from OWNER payment
of all amounts due and owing from OWNER to DESIGN/BUILDER under the Contract
Documents for Work performed through the date of such termination (including any
profit thereon) and all cost and expenses incurred by DESIGN/BUILDER due to such
termination (including, without limitation, any costs incurred to cancel
contracts with Subcontractors and the reasonable demobilization costs of
DESIGN/BUILDER). In lieu of terminating
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the Agreement and without prejudice to any other right or remedy, DESIGN/BUILDER
may upon seven (7) days written notice to OWNER stop the Work until payment is
made of all amounts due DESIGN/BUILDER, including interest thereon. The
provisions of this paragraph 14.03.A are not intended to preclude DESIGN/BUILDER
from making claim under Article 9 for an increase in Contract Price or Contract
Times or otherwise for expenses or damage attributable to such suspension or
failure.
ARTICLE 15--DISPUTE RESOLUTION
15.01 Dispute Resolution Agreement
A. OWNER and DESIGN/BUILDER agree that they will first submit any and all
unsettled claims, counterclaims, disputes and other matters in question between
them arising out of or relating to the Contract Documents or the breach thereof
("disputes"), to mediation by a mutually agreeable, impartial mediator, or if
the parties cannot so agree, a mediator designated by the American Arbitration
Association ("AAA") pursuant to its Construction Industry Mediation Rules, prior
to either of them initiating against the other a demand for arbitration pursuant
to paragraph 15.01.B through 15.01.E, unless delay in initiating arbitration
would irrevocably prejudice one of the parties. Any time limits within which to
file a demand for arbitration shall be suspended with respect to a dispute
submitted to mediation within those same applicable time limits and shall remain
suspended until 10 days after the termination of the mediation. The mediator of
any dispute submitted to mediation under this Agreement shall not serve as
arbitrator of such dispute unless otherwise agreed.
B. All claims, disputes and other matters in question between OWNER and
DESIGN/BUILDER arising out of or relating to the Contract Documents or the
breach thereof (except for claims which have been waived by the making or
acceptance of final payment as provided by paragraph 13.09) will be decided by
binding arbitration in accordance with the Construction Industry Arbitration
Rules of the AAA then in effect, subject to the limitations of this paragraph
15.01. The arbitrator shall have the discretion to award reasonable attorneys'
fees and costs to the prevailing party. This agreement so to arbitrate and any
other agreement or consent to arbitrate entered into in accordance herewith as
provided in this paragraph 15.01 will be specifically enforceable under the
prevailing law of any court having jurisdiction.
C. Notice of the demand for arbitration will be filed in writing with the
other party to the Agreement and with the designated arbitration entity. The
demand for arbitration will be made within a reasonable time after the claim,
dispute or other matter in question has arisen, and in no event shall any such
demand be made after the date when institution of legal or equitable proceedings
based on such claim, dispute or other matter in question would be barred by the
applicable statute of limitations.
D. Except as provided in paragraph 15.01.E below, no arbitration arising
out of or relating to the Contract Documents shall include by consolidation,
joinder or in any other manner any other individual or` entity who is not a
party to this contract unless:
1. the inclusion of such other individual or entity is necessary if complete
relief is to be afforded among those who are already parties to the
arbitration, and
2. such other individual or entity is substantially involved in a question
of law or fact which is common to those who are already parties to the
arbitration and which will arise in such proceedings, and
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3. the written consent of the other individual or entity sought to be
included and of OWNER and DESIGN/BUILDER has been obtained for such
inclusion, which consent shall make specific reference to this paragraph;
but no such consent shall constitute consent to arbitration of any dispute
not specifically described in such consent or to arbitration with any party
not specifically identified in such consent.
E. Notwithstanding paragraph 15.01.D, if a claim, dispute or other matter
in question between OWNER and DESIGN/BUILDER involves the Work of a
Subcontractor, Supplier or Engineer either OWNER or DESIGN/BUILDER may join such
entity as a party to the arbitration between OWNER and DESIGN/BUILDER hereunder.
DESIGN/BUILDER shall include in all subcontracts required by paragraph 6.05.D a
specific provision whereby the Subcontractor consents to being joined in any
arbitration between OWNER and DESIGN/BUILDER involving the Work of such
Subcontractor. Nothing in this paragraph 15.01.E or in the provision of such
subcontract consenting to joinder shall create any claim, right or cause of
action in favor of Subcontractor, Supplier or Engineer against OWNER.
F. Notwithstanding the foregoing, the provisions of this Article 15 shall
not apply to any claim by DESIGN/BUILDER of any breach or threatened breach of
any provision of the License Agreement attached as Exhibit F.
ARTICLE 16--MISCELLANEOUS
16.01 Giving Notice
A. Whenever any provision of the Contract Documents requires the giving of
written notice, it will be deemed to have been validly given:
1. If delivered in person to the individual or to a member of the firm or
to an officer of the corporation for whom it is intended;
2. If delivered at or sent by registered or certified mail, postage
prepaid, to the last business address known to the giver of the notice; or
3. If transmitted by facsimile, the time at which a machine generated
confirmation states the notice was received at the facsimile telephone
number of the intended recipient last known by the sender.
16.02 Computation of Times
A. When any period of time is referred to in the Contract Documents by days,
it will be computed to exclude the first and include the last day of such
period. If the last day of any such period falls on a Saturday or Sunday or on a
day made a legal holiday by the law of the applicable jurisdiction, such day
will be omitted from the computation.
B. A calendar day of twenty-four hours measured from midnight to the next
midnight will constitute a day.
16.03 Notice of Claim
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A. Should OWNER or DESIGN/BUILDER suffer injury or damage to person or
property because of any error, omission or act of the other party or of any of
the other party's employees or agents or others for whose acts the other party
is legally liable, claim will be made in writing to the other party within a
reasonable time of the first observance of such injury or damage. The provisions
of this paragraph 16.03.A shall not be construed as a substitute for or a waiver
of the provisions of any applicable statute of limitations or repose.
16.04 Cumulative Remedies
A. Except as provided in paragraph 16.06, the duties and obligations imposed
by these General Conditions and the rights and remedies available hereunder to
the parties hereto, and, in particular but without limitation, any general or
specific warranties, guarantees and indemnities imposed upon a party and all of
the rights and remedies available to the other party thereunder, are in addition
to, and are not to be construed in any way as a limitation of, any rights and
remedies available to any or all of them which are otherwise imposed or
available by Laws or Regulations, by special warranty or guarantee or by other
provisions of the Contract Documents, and the provisions of this paragraph will
be as effective as if repeated specifically in the Contract Documents in
connection with each particular duty, obligation, right and remedy to which they
apply.
16.05 Survival of Obligations
A. All representations, indemnifications, warranties and guarantees made in,
required by or given in accordance with the Contract Documents, as well as all
continuing obligations indicated in the Contract Documents, will survive final
payment, completion and acceptance of the Work and termination or completion of
the Agreement.
16.06 Limitation on OWNER's Recovery of Damages and Mutual Waiver of
Consequential Damages
A. Notwithstanding any other provision of the Contract Documents, OWNER
agrees that the aggregate amount OWNER (and anyone claiming by or through OWNER)
may recover collectively from DESIGN/BUILDER and its employee's and agents, for
the Project as a whole under the Contract Documents (including the License
Agreement attached as Exhibit F), including, without limitation damages from
DESIGN/BUILDER for OWNER's correction of defective Construction under paragraph
12.07.A, and acceptance of defective Construction under paragraph 12.08,
correction of any defective equipment or part thereof under Exhibit I and/or
termination for cause under paragraph 14.02, shall be limited to *.
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Xxxxxxxxx Xxxx Renewable Segregation of Responsibilities and Scope of Work
110 MMGPY Date 06/09/06
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EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM
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Description Design Basis Estimate Design Construction Comments
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Outside battery limits
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Rough Grading Southwest Southwest Southwest Southwest The site including any storm water run-off
Iowa Iowa Iowa Iowa retention system, will be rough graded to
Renewable Renewable Renewable Renewable allow final design site elevation plus or
minus 2" and to be performed by Southwest Iowa
Renewable, LLC (Southwest Iowa Renewable).
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Finish Grading Southwest Southwest Southwest Southwest The site will be finish graded to accommodate
Iowa Iowa Iowa Iowa surface drainage as required for ICM's design
Renewable Renewable Renewable Renewable and Southwest Iowa Renewable's design. All
seeding and landscaping to be provided and
installed by Southwest Iowa Renewable.
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Erosion Control Southwest Southwest Southwest Southwest ICM will maintain dust control during
Iowa Iowa Iowa Iowa construction for its construction, lay down
Renewable Renewable Renewable Renewable and office/parking areas. Southwest Iowa
Renewable will maintain overall erosion
control throughout the project.
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Roads Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable will design roads and
Iowa Iowa Iowa Iowa install a minimum of 12" of base rock for
Renewable Renewable Renewable Renewable access roads with temsar geogrid and interior
plant access roads and drives acceptable to
ICM, within 6" of any planned hard surface top
elevation, before the plant project
contruction begins. ICM will use these roads
for access during construction, will maintain
the roads through construction. Any required
base above this level and all final hard
surfacing will be installed by Southwest Iowa
Renewable.
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Rail Southwest Iowa Renewable will provide all rail
ICM/Southwes Southwest Southwest Southwest design and construction. ICM will provide inpu
Iowa Iowa Iowa Iowa as to the rail spacing required for the grain
Renewable Renewable Renewable Renewable unloading & ethanol loadout.
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Southwest Iowa Renewable Energy Sheet 1 of 12
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EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM
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Description Design Basis Estimate Design Construction Comments
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Water Supply ICM Southwest Southwest Southwest ICM will provide the flow rate and quality
Iowa Iowa Iowa basis for the process water to be routed to
Renewable Renewable Renewable the battery limits. Southwest Iowa Renewable
will provide and install all necessary xxxxx,
waterlines, and appurtenances necessary to
supply the water from its source to the
firewater tank inlet piping. Southwest Iowa
Renewable will make the necessary connection
to the tank. ICM will provide all water piping
from that point to the individual water usage
points within the battery limits. Southwest
Iowa Renewable will provide potable and
process water from its source to the CO2
plant(if required) and the administration
building.
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Natural Gas Supply ICM Southwest Southwest Southwest ICM will provide Southwest Iowa Renewable with
Iowa Iowa Iowa the natural gas usage requirements for sizing
Renewable Renewable Renewable of the natural gas supply. Southwest Iowa
Renewable is to install the natural gas supply
line Southwest routed to a location inside the
battery limits Iowa rpecified by ICM, in the
general area of the RTO. Renewable Southwest
Iowa Renewable will install natural gas line to
any future CO2 plant(if required) and the
administration building.
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Storm Drainage Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable is to provide and
Iowa Iowa Iowa Iowa install storm drainage as part of rough
Renewable Renewable Renewable Renewable grading package.
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Southwest Iowa Renewable Energy
Sheet 2 of 12
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110 MMGPY Date 06/09/06
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EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Description Design Basis Estimate Design Construction Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Sanitary Sewer Southwest Southwest Southwest Southwest Southwest Renewable will install and route the
Iowa Iowa Iowa Iowa the sanitary sewer to locations inside the
Renewable Renewable Renewable Renewable battery limits specified by ICM. Southwest
Iowa Renewable will run all on-site sanitary
sewer lines inside the battery limits to this
ICM specified location for tie in. Southwest
Iowa Renewable is responsible for the design
and installation of any Septic Systems and
lift stations.
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Process Sewer Waste water from the process (cooling tower
Southwest Southwest Southwest Southwest blowdown, softner discharge, RO Reject,
Iowa Iowa Iowa Iowa multimedia backwash) will be discharged from
Renewable Renewable Renewable Renewable the plant to the location specified in the
discharge permit, by Southwest Iowa Renewable
All labor and materials required to discharge
these items will be supplied and installed by
Southwest Iowa Renewable.
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Interconnecting Piperacks ICM ICM ICM ICM ICM will design and construct interconnecting
pipe racks and piping within the battery
limits, ncluding pipe racks to the ethanol
storage area, ethanol loading area, ethanol
loadout flare, the cooling tower and the
process water tank. The CO2 line and pipe
racks from the scrubber to any ifuture CO2
plant, is to be provided by Southwest Iowa
Renewable.
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Southwest Iowa Renewable Energy
Sheet 3 of 12
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110 MMGPY Date 06/09/06
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EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM
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Description Design Basis Estimate Design Construction Comments
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Steam Supply Southwest Southwest Southwest Southwest ICM will specify the required pressure,
Iowa Iowa Iowa Iowa quality, flow rate and location for delivery
Renewable Renewable Renewable Renewable of the steam supply to a point inside the
battery limits. Southwest Iowa Renewable is
responsible for designing, providing, and
installing all equipment and piping required
to deliver continuous steam to the specified
location. Southwest Iowa Renewable is also
responsible for designing, providing, and
installing all items required for condensate
return to MidAm.
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Administration Building Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable will be responsible
Iowa Iowa Iowa Iowa for the design and construction of the
Renewable Renewable Renewable Renewable administration building.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Inside battery limits
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Rough Grading Southwest Southwest Southwest Southwest The site inside of the battery limits,
Iowa Iowa Iowa Iowa including drainage to any storm water run-off
Renewable Renewable Renewable Renewable retention system, will be rough graded prior
to any plant project construction to allow for
final design elevation to be performed by
Southwest Iowa Renewable. Southwest Iowa
Renewable shall be responsible for all site
grading to meet the allowable soil bearing
pressures and acceptable minimum settlement
requirements as specified by the Engineer All
rough grading and compaction shall be
inspected by a licensed professional
geotechnical firm and all test results shall
be forwarded to ICM immediately upon
ompletion. All testing procedures are to be
pre- approved by ICM, at it's sole discretion.
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Southwest Iowa Renewable Energy Sheet 4 of 12
Southwest Iowa Renewable Segregation of Responsibilities and Scope of Work
110 MMGPY Date 06/09/06
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EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM
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Description Design Basis Estimate Design Construction Comments
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Finish Grading Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable will design and
Iowa Iowa Iowa Iowa perform finish grading to slope the grade
Renewable Renewable Renewable Renewable within the battery limits to a storm water
drainage system to be provided and installed by
Southwest Iowa Renewable. All final grading
outside the battery limits will be designed and
performed by Southwest Iowa Renewable. All
seeding and landscaping will be provided and
installed by Southwest Iowa Renewable.
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Roads Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable will design roads and
Iowa Iowa Iowa Iowa drives and install a minimum of 12" of base
Renewable Renewable Renewable Renewable rock with Tensar geo grid as part of the rough
grade before construction begins. ICM will
maintain the roads inside the battery limits
and Southwest construction and restore the
base to within 2" of previous grade. All
required base above this level and all final
hard surfacing will be installed by Southwest
Iowa Renewable.
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Laydown Area Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable is responsible for
Iowa Iowa Iowa Iowa all laydown/trailer areas required for ICM's
Renewable Renewable Renewable Renewable construction with 6" base rock as specified by
ICM. ICM will maintain the laydown areas
during construction. Southwest Iowa Renewable
is responsible for removal of rock base after
construction is completed.
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Southwest Iowa Renewable Energy Sheet 5 of 12
Southwest Iowa Renewable Segregation of Responsibilities and Scope of Work
110 MMGPY Date 06/09/06
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EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM
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Description Design Basis Estimate Design Construction Comments
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Temporary Facilities Southwest Southwest Southwest Southwest ICM will maintain the layout area for office
Iowa Iowa Iowa Iowa trailers, parking and equipment
Renewable & Renewable & Renewable & Renewable & storage/laydown through construction. ICM
ICM ICM ICM ICM and/or its subcontractors will furnish all ICM
required office trailers through the
construction process. Southwest Iowa Renewable
will furnish all temporary utilities required
by ICM.
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Natural Gas Supply Southwest Southwest Southwest Southwest ICM will provide Southwest Iowa Renewable with
Iowa Iowa Iowa Iowa the natural gas usage requirements for sizing
Renewable Renewable Renewable Renewable of the natural gas supply for the ethanol
plant. Southwest Iowa Renewable will furnish
Natural gas service supply to a location
inside the battery limits specified by ICM in
the general area of the regenerative thermal
oxidizer. Southwest Iowa Renewable will
provide natural gas and the required gas line
from its header to any future CO2 plant and
the administration building.
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Grain Receiving, Handling and Storage Southwest Southwest Southwest Southwest ICM will provide grain usage requirements.
Iowa Iowa Iowa Iowa Southwest Iowa Renewable is responsible for
Renewable Renewable Renewable Renewable all grain receiving, handling, and storage up
to the connection of the slurry blender feed
screw. ICM will provide the hammer xxxxx for
installation by Southwest Iowa Renewable.
Southwest Iowa Renewable will design and
install the electrical, controls, and
instrumentation as specified by ICM design
basis for the grain receiving, handling, and
storage system.
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WDG Handling ICM ICM ICM ICM ICM will provide and install the WDG handling
system per ICM standard 110 MMGPY Facility.
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Southwest Iowa Renewable Energy Sheet 6 of 12
Southwest Iowa Renewable Segregation of Responsibilities and Scope of Work
110 MMGPY Date 06/09/06
REV 0
EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Description Design Basis Estimate Design Construction Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------------
DDG Handling ICM ICM ICM ICM ICM will provide and install the DDG handling
system per ICM standard 110 MMGPY Facility.
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Grain Milling ICM ICM is responsible for the specification and
ICM ICM ICM purchase of the Hammer Xxxxx for installation by
Southwest Iowa Renewable.
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Plant & Instrument Air ICM ICM ICM ICM ICM is responsible for the compressors and
piping for all plant and instrument air
required for other elements of ICM's scope of
work. Southwest Iowa Renewable will be
responsible for any air requirements,
including compressors, dryers and piping for
all other elements of the work not covered in
the ICM scope of work, including any future
CO2 plant.
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Xxxx Section/Liquefaction ICM ICM ICM ICM ICM is responsible for all elements of the
purchase, design and construction of these
systems. Per standard ICM 110 MMGPY Facility.
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Fermentation Section ICM ICM ICM ICM ICM is responsible for all elements of the
purchase, design and construction of these
systems. Per standard ICM 110 MMGPY Facility.
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Distillation/Evaporation Sections ICM ICM ICM ICM ICM is responsible for all elements of the
purchase, design and construction of these
systems. Per standard ICM 110 MMGPY Facility.
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Liquid/Solid Separation Section ICM ICM ICM ICM ICM is responsible for all elements of the
purchase, design and construction of these
systems. Per standard ICM 110 MMGPY Facility.
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Evaporation Section ICM ICM ICM ICM ICM is responsible for all elements of the
purchase, design and construction of these
systems. Per standard ICM 110 MMGPY Facility.
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Southwest Iowa Renewable Energy Sheet 7 of 12
Southwest Iowa Renewable Segregation of Responsibilities and Scope of Work
110 MMGPY Date 06/09/06
REV 0
EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Description Design Basis Estimate Design Construction Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Product Storage Section ICM ICM ICM ICM ICM is responsible for all elements of the
purchase, design and construction of this
systems, per standard ICM 110 MMGPY design.
Tanks will be provided with gravel
foundations. Cathodic protection is not
included in base contract price. All secondary
containment design and installation including
any required bentonite or synthetic liners,
and riprap are part of the rough grading scope
by Southwest Iowa Renewable.
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Boiler/Steam Section ICM/Southwes Southwest Southwest Southwest Southwest Iowa Renewable Energy is responsible
Iowa Iowa Iowa Iowa for the design and installation of the steam
Renewable Renewable Renewable Renewable supply to the ethanol facility at ICM
specified pressure, temperature, and quality,
to an ICM specified location on site. All
chemicals required are the responsibility of
Southwest Iowa Renewable.
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Process Building and Energy Center ICM ICM ICM ICM ICM will design and construct the process
building and energy center including all
associated interior equipment, piping,
foundations, miscellaneous mechanical
equipment, and electrical (ISBL). Five steam
tube dryers and two RTOs will be furnished.
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Cooling Tower/Water Section ICM ICM ICM ICM ICM is responsible for all elements of the
purchase, design and construction of this
system, Per standard ICM 110 MMGPY design
Tower chemicals are the responsibility of
Southwest Iowa Renewable.
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Southwest Iowa Renewable Energy Sheet 8 of 12
Product Storage Section ICM ICM ICM ICM
ICM is responsible for all elements of the
Southwest Iowa Renewable Segregation of Responsibilities and Scope of Work purchase, design and construction of this
110 MMGPY Date 06/09/06 systems, per standard ICM 110 MMGPY design.
REV 0 anks will be provided with gravel foundations.
EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM Cathodic protection is not included in base
-------------------------------------------------------------------------------------------------------------------------------------------------------------- ontract price. All secondary containment design
Description Design Basis Estimate Design Construction Comments and installation including any required
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Electrical/Power Substation ICM Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable is responsible for
Iowa Iowa Iowa the main electrical substation to be located
Renewable Renewable Renewable within 500' of the process building, and
metering of electrical power. ICM is
responsible for the main switchgear and
providing three (3) 600 amp feeds. Southwest
Iowa Renewable is also responsible for any
contracts with the electrical utilities
regarding power equipment and/or usage
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Power Distribution ICM/Southwes Southwest Southwest Southwest ICM is responsible for the primary
t Iowa Iowa Iowa Iowa distribution from the feed points at the main
Renewable Renewable Renewable Renewable switchgear, and for all cables, switchgear,
and transformers to provide power to the
ethanol plant excluding any CO2 recovery. The
Power Distribution is not included in the
base contract price. ICM to complete the work
and the costs will be billed back~to
Southwest Iowa Renewable at cost plus 15%.
ICM will provide a transformer for the Admin.
building and SIRE will be responsible for the
hook up to said transformer and for any
additional wiring required for the Admin.
building. Secondary voltage to Admin.
building will be 480 Vac.~
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Construction Power and utilities ICM Southwest Southwest Southwest Southwest Iowa Renewable will be solely
Iowa Iowa Iowa responsible for supplying and installing all
Renewable Renewable Renewable required utilities needed for construction.
ICM will furnish specifications and locations
of needed utilities to include electrical
power, lighting, sewer, and natural gas. All
utilities bills for construction will be in
Southwest Iowa Renewable's name and billed
direct to Southwest Iowa Renewable Temporary
power will be installed during rough grading.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Southwest Iowa Renewable Energy
Product Storage Section ICM ICM ICM ICM
ICM is responsible for all elements of the
Southwest Iowa Renewable Segregation of Responsibilities and Scope of Work purchase, design and construction of this
110 MMGPY Date 06/09/06 systems, per standard ICM 110 MMGPY design.
REV 0 anks will be provided with gravel foundations.
EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM Cathodic protection is not included in base
-------------------------------------------------------------------------------------------------------------------------------------------------------------- ontract price. All secondary containment design
Description Design Basis Estimate Design Construction Comments and installation including any required
--------------------------------------------------------------------------------------------------------------------------------------------------------------
600 v equipment within battery limits ICM ICM ICM ICM ICM is responsible for the 600v equipment
including cables, switchgear, MCC, panel
boards, and transformers to provide electric
power to the plant areas within the battery
limits. The Admin building will be the
responsibility of Southwest Iowa Renewable
and/or it's subcontractors from the low side
(600v) of the corresponding transformer.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Instrumentation and controls ICM ICM ICM ICM ICM is responsible for the instrumentation and
controls within the battery limits including
the DCS system and hardware. All office
computers and networks are the responsibility
of Southwest Iowa Renewable
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Facility Communications Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable will be responsible
Iowa Iowa Iowa Iowa for the facility communications including the
Renewable Renewable Renewable Renewable telephone system and broadband Internet
access. ICM will help coordinate quantity and
locations for installations within the battery
limits and any interface with plant equipment.
Any required security systems, cameras,
wiring, or monitors is the responsibility of
Southwest Iowa Renewable. Southwest Iowa
Renewable must provide a dedicated telephone
service and dedicated internet ISP at the
server room in the main Process Building.
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Southwest Iowa Renewable Energy Sheet 10 of 12
Product Storage Section ICM ICM ICM ICM
ICM is responsible for all elements of the
Southwest Iowa Renewable Segregation of Responsibilities and Scope of Work purchase, design and construction of this
110 MMGPY Date 06/09/06 systems, per standard ICM 110 MMGPY design.
REV 0 anks will be provided with gravel foundations.
EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM Cathodic protection is not included in base
-------------------------------------------------------------------------------------------------------------------------------------------------------------- ontract price. All secondary containment design
Description Design Basis Estimate Design Construction Comments and installation including any required
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Fire Detection and Alarm Systems. Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable is responsible for
Iowa Iowa Iowa Iowa the diesel fire water pump station and heat Southwest Iowa Renewable is responsible for the
Renewable Renewable Renewable Renewable and smoke detection in the MCC's per standard diesel fire water pump station and heat and
ICM design. Southwest Iowa Renewable is
responsible for the design and installation of
the fire water loop, valves, hydrants,
monitors, deluge requirements, foam etc.
required to meet the local fire marshal's and
ICM insurance requirements. This is not
included in ICM base contract price. Southwest
Iowa Renewable will contract with ICM to
complete work at cost plus *%.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Water Treatment Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable will provide and
Iowa Iowa Iowa Iowa install water treatment equipment or RO system
Renewable Renewable Renewable Renewable per standard ICM design. Any additional water
treatment equipment required will be designed
and installed by ICM at cost plus *% billable
to Southwest Iowa Renewable
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Chemical Injection Systems ICM ICM ICM IGM ICM is responsible for all elements of the
design and construction of these systems. Per
standard ICM 110 MMGPY design. Chemicals are
the responsibility of Southwest Iowa Renewable
--------------------------------------------------------------------------------------------------------------------------------------------------------------
CO2 Scrubber System ICM ICM ICM ICM ICM is responsible for the CO2 Scrubber. A
tie- in point for the discharge of the CO2
stream to any future CO2 plant will be
provided in the general area of the scrubber.
Exact location of tie-in point to be specified
by ICM. CO2 transfer blower from scrubber to
CO2 plant, knock out condenser, controls,
purge scrubber, and associated piping is the
responsibility of Southwest Iowa Renewable.
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Southwest Iowa Renewable Energy Sheet 11 of 12
Product Storage Section ICM ICM ICM ICM
ICM is responsible for all elements of the
Southwest Iowa Renewable Segregation of Responsibilities and Scope of Work purchase, design and construction of this
110 MMGPY Date 06/09/06 systems, per standard ICM 110 MMGPY design.
REV 0 anks will be provided with gravel foundations.
EXHIBIT A - Segregation of Responsibilities and Scope of Work between SIRE and ICM Cathodic protection is not included in base
-------------------------------------------------------------------------------------------------------------------------------------------------------------- ontract price. All secondary containment design
Description Design Basis Estimate Design Construction Comments and installation including any required
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Emissions and discharge monitoring Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx Renewable Is responsible for
equipment Iowa Iowa Iowa Iowa providing and installing all required
Renewable Renewable Renewable Renewable emissions and discharge monitoring equipment.
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Southwest Iowa Renewable Energy Sheet 12 of 12
*OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
