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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
Plaintiff
No.D~ -SOl&:. C;UI-lJ-0L..~
vs.
LEE WOODALL
Defendant
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in
the following pages, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the court your defense or objections to the claims set forth against you. You
are warned that if you fail to do so the case may proceed without you and a judgment may
be entered against you by the court without further notice for any money claimed in the
Complaint or for any other claim or relief requested by the Plaintiff. You may lose money
or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT
HIRING A LAWYER.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, P A 17013-3302
Telephone: 717-249-3166
Dated: q /2-D J 05
f
HARMON & DAVIES, P.C.
2306 Columbia Avenue
Lancaster, Pa 17603
(717) 29,b2236 , J
By:_~R~~@;
Thomas R. Davies, PAID #35260
Attorneys for Plaintiff
Horst Construction Company
-!ARMON & DAVIES, P.c.
ATTORNEYS,AT.LAW
2306 COLUMBIA AVENUE
LANCASlER, PA 17603
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
320 Granite Run Drive
P.O. Box 3330
Lancaster, P A 17604
No. OF; - ...~{JJl..
C/~,L ~
Plaintiff
vs.
LEE WOODALL
21 West Mulberry Hill Drive
Carlisle, P A 17013
Defendant
COMPLAINT
Plaintiff, Horst Construction Company d/b/a Horst Construction ("Horst"), by and
through its undersigned attorneys, Harmon & Davies, P.C., hereby files this Complaint
against Defendant, Lee Woodall, and in support thereof avers as follows:
1. Plaintiff, Horst Construction Company d/b/a Horst Construction ("Horst"),
is a Pennsylvania business corporation with an address of 320 Granite Run Drive, P.O. Box
3330, Lancaster, Pennsylvania 17604.
2. On information and belief, Defendant, Lee Woodall, is a resident of 21
West Mulberry Hill Drive, Carlisle, P A 17013.
3. On or about October 10,2002, Horst, as design-builder, entered into a
HARMON & DAVIES, P.e.
ATfORNEYS.AT.LAW
2306 COLUMBIA AVENUE
LANCASTER, PA 17603
written contract agreement (the "Contract"), with Lee Woodall, as "Owner," under which
!ARMON & DAVIES, P.e.
ATTORNEYS.AT.LAW
2306 COLUMBIA AVENUE
LANCASTER, P A 17603
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Horst was to furnish labor, materials and equipment necessary for the design and
construction of Owner's project, for a total cost of $65,089.00 (the "Contract Price"), A
true and correct copy of the Contract is attached hereto as Exhibit "A."
4. On or about October 28,2002, Lee Woodall changed the scope of work
contracted for at an increased cost of$54,193.00. As a result ofthe change order, the
revised Contract Price was $119,282.00.
COUNT I - BREACH OF CONTRACT
5. Under the terms of the Contract, Lee Woodall agreed to pay all amounts due
and owing to Horst Construction for labor, materials and equipment necessary for the
design and construction of Owner's project.
6. Despite Horst Construction's fulfillment of all its obligations under the
Contract in a timely, workmanlike, and professional manner, Lee Woodall has refused to
remit payment of the Contract balance plus agreed upon interest in the amount of
$119,282.00. True and correct copies of unpaid invoices are attached hereto as Exhibit
"B.'"
7. Lee Woodall's failure to pay Horst Construction is a material breach of its
obligations under the Contract.
WHEREFORE, Plaintiff Horst Construction Company respectfully requests that
this Honorable Court enter judgment in its favor, and against Defendant Lee Woodall in
excess of$119,282.00, plus interest, cost of suit, and any further relief which the Court
deems just and proper.
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HARMON & DAVIES, P.C.
AITORNEYS.AT.LAW
2306 COLUMBIA AVENUE
LANCASTER. P A 17603
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COUNT 11- UNJUST ENRICHMENT QUANTUM MERIT
8. Horst Construction Company incorporates by reference Paragraphs 1
through 7 of this Complaint as if fully set forth herein.
9. Horst Construction Compan>, supplied labor, equipment and material to Lee
Woodall on the project for Lee Woodall's benefit, fully expecting compensation from Lee
Woodall for its work on the project.
10. All of the work discussed above was performed at the direction of Lee
Woodall.
11. Lee Woodall accepted and retained the benefit conferred upon him by Horst
Construction Company.
12. Lee Woodall did not compensate Horst Construction for the work it has
performed on the project. Lee Woodall has been unjustly enriched by Horst Construction's
work.
13. Lee Woodall's retention of the benefit of labor and materials supplied by
Horst Construction without fully compensating Horst Construction would result in an
inequity.
14. Despite Horst Construction's fulfillment of all of its obligations under the
Contract in a timely, workmanlike, and professional manner, Lee Woodall has refused to
remit payment of the Contract balance in the amount of$119,282.00, which represents the
fair value of the work performed.
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WHEREFORE, Plaintiff Horst Construction Company respectfully requests that
this Honorable Court enter judgment in its favor, and against Defendant Lee Woodall in
the amount of $119,282.00 plus interest, cost of suit, and any further relief which the Court
deems just and proper.
COUNT 111- BREACH OF PENNSYL VANIA CONTRACTOR AND
SUBCONTRACTOR PAYMENT ACT
15. Horst Construction Company incorporates by reference Paragraphs 1
through 14 of this Complaint as if fully set forth herein.
16. Horst Construction Company has fulfilled all conditions precedent to its
entitlement to payment, as stated above, on the project.
17. Pursuant to Title 73 Pa.C.S.A. Chapter 14(a), S 506, et.seq. entitled
Contractor and Subcontractor Payment Act (the "Act"), Horst Construction is entitled to
recover interest at a rate of one percent (1 %) per month and penalties at the rate of one
percent (1 %) per month on all Contract funds being unlawfully withheld by Lee Woodall.
18. The Act provides that an owner shall pay the contractor strictly in
accordance with terms of the construction contract.
19. Lee Woodall's refusal to pay Horst Construction for the labor, material and
equipment for use in design and construction of Owner's project violates the terms of the
Act entitling Horst Construction to interest, penalties, and attorney's fees.
20. Pursuant to the Act, Horst Construction is entitled to recover its reasonable
attorney's fees incurred in the institution and maintenance of this suit.
HARMON & DAVIES. P.c.
AITORNEYS.AT.LAW
2306 COLUMBIA AVENUE
LANCASTER. PA 17603
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IARMON & DAVIES, P.C.
A ITORNEYS.A T.LA W
2306 COLUMBIA AVENUE
LANCASTER, PA 17603
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WHEREFORE, Plaintiff Horst Construction Company respectfully requests that
this Honorable Court enter judgment in its favor, and against Defendant Lee Woodall
damages in the amount of $119,282.00 plus interest, cost of suit, and any further relief
which the Court deems just and proper.
Respectfully submitted,
Dated:
q/2-0/0r;-
HARMON & DAVIES, P.C.
2306 Columbia Avenue
Lancaster, Pa 17603
(717) 291-2236
BY:~ e. ~ 'E
Thomas R. Davies, PA ID #35260
Attorneys for Plaintiff
Horst Construction Company
CCB:C:\Documents and Settings\Owner\My Documents\Clients\Horst Construction Co\Woodall Carwash 0404\Complaint.wpd
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HARMON & DAVIES. P.c.
ATTORNEYS-AT-LAW
2306 COLUMBIA AVENUE
LANCASTER, PA 17603
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VERIFICATION
I, Darryl L. Hurst, verify that I am the Vice-President of Horst Construction
Company and that as such, I am authorized to make this Verification; that the information
set forth in the foregoing Complaint is true and correct to the best of my knowledge,
information and belief. I understand that any false statements contained herein are subject
to the penalties of 18 Pa. C.S. 94904, relating to unsworn falsification to authorities.
Date: 9- 7- 05'""
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DARR L. H RST
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THE ASSO-,TED GENERAL CONTRACTOR_F AMERICA
QRlQIIW,
AGC DOCUMENT NO. 410
STANDARD FORM OF DESIGN-BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER
(Where the Basis of Payment is the Cost of the Work Plus a Fee with a
[ Guaranteed Maximum Price)
This standard form agreement was developed with the advice and cooperation of the AGC Private Industry
Advisory Council, a number of Fortune 500 Owners' design and construction managers who have been
meeting with AGC contractors to discuss issues of mutual concern. AGC gratefully acknowledges the
contributions of these owners' staff who participated in this effort to produce a basic agreement for
construction.
TABLE OF ARTICLES
1. AGREEMENT
2. GENERAL PROVISIONS
3. DESIGN-BUILDER'S RESPONSIBILITIES
4. OWNER'S RESPONSIBILITIES
5. SUBCONTRACTS
6. TIME
7. COMPENSATION
8. COST OF THE WORK
9. CHANGES IN THE WORK
10. PAYMENT FOR CONSTRUCTION PHASE SERVICES
11. INDEMNITY, INSURANCE, BONDS, AND WAIVER OF SUBROGATION
12. SUSPENSION AND TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM
DESIGN-BUILDER'S RESPONSIBILITIES
13. DISPUTE RESOLUTION
14. MISCELLANEOUS PROVISIONS
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software.
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15. EXISTING CONTRACT DOCUMENTS
AMENDMENT NO.1
This Agreement has important legal and insurance consequences. Consultation with an attorney and an
insurance adviser is encouraged with respect to its completion or modification
ARTICLE 1
AGREEMENT
1"'\l1h. (j~bllC"
This Agreement is made this~ day of A~t in the year 2002, by and between the
OWNER
(Name and Address)
~" 1cAvJ
Lee D i1: ,..r~ Woodall
21 West Mulberry Hill Road
Carlisle, PA 17013-8410
and the
DESIGN-BUILDER
(Name and Address)
Horst Construction Company
320 Granite Run Drive
Lancaster, PA 17601
for services in connection with the following PROJECT
(Name, location and brief description) ~ \ A. \
1't)-c.c.nlWl. c. ~ b vt') ~P.I
Woodall Carwash, OR.!"_ Pennsylvania
Notice to the parties shall be given at the above addresses.
ARTICLE 2
GENERAL PROVISIONS
2.1 TEAM RELATIONSHIP The Owner and the Design-Builder agree to proceed with the Project on the
basis of trust, good faith and fair dealing and shall take all actions reasonably necessary to perform this
Agreement in an economical and timely manner, including consideration of design modifications and
alternative materials or equipment that will permit the Work to be constructed within the Guaranteed
Maximum Price (GMP) and by the Dates of Substantial Completion and Final Completion if they are
established by Amendment NO.1. The Design-Builder agrees to procure or furnish, as permitted by the
law of the State in which the Project is located, the design phase services and construction phase
services as set forth below.
2.1.1 The Design-Builder represents that it is an independent contractor and that it is familiar with
the type of work it is undertaking.
2.1.2 Neither the Design-Builder nor any of its agents or employees shall act on behalf of or in the
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated Gerieral Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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name of the Owner unless authorized in writing by the Owner's Representative.
2.2 ARCHITECT/ENGINEER Architectural and engineering services shall be procured from licensed,
independent design professionals retained by the Design-Builder or furnished by licensed employees of
the Design-Builder, or as permitted by the law of the State in which the Project is located. The standard of
care for architectural and engineering services performed under this Agreement shall be the care and skill
ordinarily used by members of the architectural and engineering professions practicing under similar
conditions at the same time and locality. The person or entity providing architectural and engineering
services shall be referred to as the ArchitecUEngineer. If the Architect/Engineer is an independent design
professional, the architectural and engineering services shall be procured pursuant to a separate
agreement between the Design-Builder and the Architect/Engineer. The Architect/Engineer for the Project
is Cornerstone Design Architects, Ltd..
2.3 EXTENT OF AGREEMENT This Agreement is 'solely for the benefit of the parties, represents the
entire and integrated agreement between the parties, and supersedes all prior negotiations,
representations or agreements, either written or oral. The Owner and the Design-Builder agree to look
solely to each other with respect to the performance of the Agreement. The Agreement and each and
every provision is for the exclusive benefit of the Owner and the Design-Builder and not for the benefit of
any third party nor any third party beneficiary, except to the extent expressly provided in the Agreement.
2.4 DEFINITIONS
.1 The Contract Documents consist of:
a. Change Orders and written amendments to this Agreement including exhibits and
appendices, signed by both the Owner and the Design-Builder, including Amendment NO.1 if
executed;
b. this Agreement except for the existing Contract Documents set forth in item e. below;
c. the most current documents approved by the Owner pursuant to Subparagraph 3.1.4, 3.1.6
or3.1.7 ;
d. the information provided by the Owner pursuant to Clause 4.1.2.1;
e. the Contract Documents in existence at the time of execution of this Agreement which are
set forth in Article 15;
f. the Owner's Program provided pursuant to Subparagraph 4.1.1;
In case of any inconsistency, conflict or ambiguity among the Contract Documents, the
documents shall govern in the order in which they are listed above.
.2 The term day shall mean calendar day, unless otherwise specifically defined.
.3 Design-Builder's Fee means the compensation paid to the Design-Builder for salaries and other
mandatory or customary compensation of the Design-Builder's employees at its principal and branch
offices except employees listed in Subparagraph 8.2.2, general and administrative expenses of the
Design-Builder's principal and branch offices other than the field office, and the Design-Builder's
capital expenses, including interest on the Design-Builder's capital employed for the Work, and
profit.
.4 Defective Work is any portion of the Work not in conformance with the Contract Documents as
more fully described in Paragraph 3.8.
.5 The term Fast-track means accelerated scheduling which involves commencing construction
prior to the completion of drawings and specifications and then using means such as bid packages
and efficient coordination to compress the overall schedule.
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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.6 Final Completion occurs on the date when the Design-Builder's obligations under this Agreement
are complete and accepted by the Owner and final payment becomes due and payable.
.7 A Material Supplier is a party or entity retained by the Design-Builder to provide material and
equipment for the Work.
.8 Others means other contractors and all persons at the Worksite who are not employed by
Design-Builder, its Subcontractors or Material Suppliers.
.9 The Owner is the person or entity identified as such in this Agreement and includes the Owner's
Representative.
.10 The Owner's Program is an initial description of the Owner's objectives, that may include budget
and time criteria, space requirements and relationships, flexibility and expandability requirements,
special equipment and systems, and site requirements.
.11 The Project, as identified in Article 1, is the building, facility and/or other improvements for
which the Design-Builder is to perform the Work under this Agreement. It may also include
improvements to be undertaken by the Owner or Others,
.12 A Subcontractor is a party or entity retained by the Design-Builder as an independent contractor
to provide the on-site labor, materials, equipment and/or services necessary to complete a specific
portion of the Work. The term Subcontractor does not include the Architect/Engineer or any separate
contractor employed by the Owner or any separate contractors subcontractors.
.13 Substantial Completion of the Work, or of a designated portion, 'occurs on the date when the
Design-Builder's obligations are sufficiently complete in accordance with the Contract Documents so
that the Owner can or does occupy or utilize the Project, or a designated portion, for the use for
which it is intended, in accordance with Paragraph 10.4. The issuance of a Certificate of Occupancy
is not a prerequisite for Substantial Completion if the Certificate of Occupancy cannot be obtained
due to factors beyond the Design-Builder's control. This date shall be confirmed by a Certificate of
Substantial Completion signed by the Owner and the Design-Builder. The Certificate shall state the
respective responsibilities of the Owner and the Design-Builder for security, maintenance, heat,
utilities, damage to the Work, and insurance. The Certificate shall also list the items to be completed
or corrected, and establish the time for their completion and correction, within the time frame, if any,
established in Amendment NO.1 for the Date of Final Completion.
.14 A Subsubcontractor is a party or entity who has an agreement with a Subcontractor to perform
any portion of the Subcontractor's work.
.15 The Work is the Design Phase Services procured or furnished in accordance with Paragraph
3.1, the GMP Proposal provided in accordance with Paragraph 3.2, the Construction Phase Services
provided in accordance with Paragraph 3.3, Additional Services that may be provided in accordance
with Paragraph 3.10, and other services which are necessary to complete the Project in accordance
with and reasonably inferable from the Contract Documents.
.16 Worksite means the geographical area at the location mentioned in Article 1 where the Work is
to be performed.
ARTICLE 3
DESIGN-BUILDER'S RESPONSIBILITIES
The Design-Builder shall be responsible for procuring or furnishing the design and for the construction of
the Work consistent with the Owner's Program, as such Program may be modified by the Owner during
the course of the Work. The Design-Builder shall exercise reasonable skill and judgment in the
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DocuBuilderTM . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999. The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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performance of its services consistent with the team relationship described in Paragraph 2.1, but does not
warrant nor guarantee schedules and estimates other than those that are part of the GMP proposal.
The Design-Builder and the Owner may establish a Fast-track approach to the design and construction
services necessary to complete the Project. Such agreement establishing a Fast-track approach and the
Schedule of the Work shall be included as an exhibit to this Agreement. In the absence of such
agreement, the parties shall proceed in accordance with Paragraphs 3.1 and 3.3 below.
3.1 DESIGN PHASE SERVICES
3.1.1 PRELIMINARY EVALUATION. The Design-Builder shall review the Owner's Program to
ascertain the requirements of the Project and shall verify such requirements with the Owner. The
Design-Builder's review shall also provide to the Owner a preliminary evaluation of the site with
regard to access, traffic, drainage, parking, building placement and other considerations affecting the
building, the environment and energy use, as well as information regarding applicable governmental
laws, regulations and requirements. The Design-Builder shall also propose alternative architectural,
civil, structural, mechanical, electrical and other systems for review by the Owner, to determine the
most desirable approach on the basis of cost, technology, quality and speed of delivery. The
Design-Builder will also review existing test reports but will not undertake any independent testing
nor be required to furnish types of information derived from such testing in its Preliminary
Evaluation. Based upon its review and verification of the Owner's Program and other relevant
information the Design-Builder shall provide a Preliminary Evaluation of the Projects feasibility for
the Owner's acceptance. The Design-Builder's Preliminary Evaluation shall specifically identify any
deviations from the Owner's Program:
3.1.2 PRELIMINARY SCHEDULE. The Design-Builder shall prepare a preliminary schedule of the
Work. The Owner shall provide written approval of milestone dates established in the preliminary
schedule of the Work. The schedule shall show the activities of the Owner, the ArchitecUEngineer
and the Design-Builder necessary to meet the Owner's completion requirements. The schedule shall
be updated periodically with the level of detail for each schedule update reflecting the information
then available. If an update indicates that a previously approved schedule will not be met, the
Design-Builder shall recommend corrective action to the Owner in writing.
3.1.3 PRELIMINARY ESTIMATE. When sufficient Project information has been identified, the
Design-Builder shall prepare for the Owner's acceptance a preliminary estimate utilizing area,
volume or similar conceptual estimating techniques. The estimate shall be updated periodically with
the level of detail for each estimate update reflecting the information then available. If the preliminary
estimate or any update exceeds the Owner's budget, the Design-Builder shall make
recommendations to the Owner.
3.1.4 SCHEMATIC DESIGN DOCUMENTS. The Design- Builder shall submit for the Owner's written
approval Schematic Design Documents, based on the agreed upon Preliminary Evaluation.
Schematic Design Documents shall include drawings, outline specifications and other conceptual
documents illustrating the Projects basic elements, scale, and their relationship to the Worksite.
One set of these documents shall be furnished to the Owner. When the Design-Builder submits the
Schematic Design Documents the Design-Builder shall identify in writing all material changes and
deviations that have taken place from the Design-Builder's Preliminary Evaluation, schedule and
estimate. The Design-Builder shall update the preliminary schedule and estimate based on the
Schematic Design Documents.
3.1.5 PLANNING PERMITS. The Design-Builder shall obtain and the Owner shall pay for all
planning permits necessary for the construction of the Project.
3.1.6 DESIGN DEVELOPMENT DOCUMENTS. The Design-Builder shall submit for the Owner's
written approval Design Development Documents based on the approved Schematic Design
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Ma mum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under he
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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Documents. The Design Development Documents shall further define the Project including drawings
and outline specifications fixing and describing the Project size and character as to site utilization,
and other appropriate elements incorporating the structural, architectural, mechanical and electrical
systems. One set of these documents shall be furnished to the Owner. When the Design-Builder
submits the Design Development Documents, the Design-Builder shall identify in writing all material
changes and deviations that have taken place from the Schematic Design Documents. The
Design-Builder shall update the schedule and ostim::lte establish the GMP based on the Design
Development Documents.
3.1.7 CONSTRUCTION DOCUMENTS. The Design-Builder shall submit for the Owner's written
approval Construction Documents based on the approved Design Development Documents. The
Construction Documents shall set forth in detail the requirements for construction of the Work, and
shall consist of drawings and specifications based upon codes, laws and regulations enacted at the
time of their preparation. When the Design-Builder submits the Construction Documents, the
Design-Builder shall identify in writing all material changes and deviations that have taken place from
the Design Development Documents. Construction shall be in accordance with these approved
Construction Documents. One set of these documents shall be furnished to the Owner prior to
commencement of construction. If::l GMP has not boon ostDblichod, the Design-Builder shall
prepare a further update of the schedule and estimate based on the Construction Documents._
Construction documents are not included in the Design Phase.
3.1.8 OWNERSHIP OF DOCUMENTS. Upon the making of payment pursuant to Paragraph 10.5,
the Owner shall receive ownership of the property rights, except for copyrights, of all documents,
drawings, specifications, electronic data and information prepared, provided or procured by the
Design-Builder, its Architect/Engineer, Subcontractors and consultants and distributed to the Owner
for this Project. (Design-Build Documents)
.1 If this Agreement is terminated pursuant to Paragraph 12.2, the Owner shall receive
ownership of the property rights, except for copyrights, of the Design-Build Documents upon
payment for all Work performed in accordance with this Agreement, at which time the Owner
shall have the right to use, reproduce and make derivative works from the Design-Build
Documents to complete the Work.
.2 If this Agreement is terminated pursuant to Paragraph 12.3, the Owner shall receive
ownership of the property rights, except for copyrights, of the Design-Build Documents upon
payment of all sums provided in Paragraph 12.3, at which time the Owner shall have the right
to use, reproduce and make derivative works from the Design-Build Documents to complete
the Work.
.3 The Owner may use, reproduce and make derivative works from the Design-Build
Documents for subsequent renovation and remodeling of the Work, but shall not use,
reproduce or make derivative works from the Design-Build Documents for other projects
without the written authorization of the Design-Builder, who shall not unreasonably withhold
consent.
.4 The Owner's use of the Design-Build Documents without the Design-Builder's involvement
or on other projects is at the Owner's sole risk, except for the Design-Builder's indemnification
obligation pursuant to Paragraph 3.7, and the Owner shall defend, indemnify and hold
harmless the Design-Builder, its Architect/Engineer, Subcontractors and consultants, and the
agents, officers, directors and employees of each of them from and against any and all claims,
damages, losses, costs and expenses, including but not limited to attorney's fees, costs and
expenses incurred in connection with any dispute resolution process, arising out of or resulting
from the Owner's use of the Design-Build Documents.
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DocuBuilder™ . AGe DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant o~ license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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.5 The Design-Builder shall obtain from its ArchitecUEngineer, Subcontractors and
consultants property rights and rights of use that correspond to the rights given by the
Design-Builder to the Owner in this Agreement.
3.2 GUARANTEED MAXIMUM PRICE (GMP)
3.2.1 GMP PROPOSAL. At such time as the Owner and the Design-Builder jointly agree, the
Design-Builder shall submit a GMP Proposal in a format acceptable to the Owner. Unless the parties
mutually agree otherwise, the GMP shall be the sum of the estimated Cost of the Work as defined
in Article 8 and the Design-Builder's Fee as defined in Article 7. The GMP is subject to modification
as provided in Article 9.
3.2.1.1 If the Design-Build Documents are not complete at the time the GMP Proposal is
submitted to the Owner, the Design-Builder shall provide in the GMP for further development
of the Design-Build Documents consistent with the Owner's Program. Such further
development does not include changes in scope, systems, kinds and quality of materials,
finishes or equipment, all of which if required, shall be incorporated by Change Order.
3.2.2 BASIS OF GUARANTEED MAXIMUM PRICE. The Design-Builder shall include with the GMP
Proposal a written statement of its basis, which shall include:
.1 a list of the drawings and specifications, including all addenda, which were used in
preparation of the GMP Proposal;
.2 a list of allowances and a statement of their basis;
.3 a list of the assumptions and clarifications made by the Design-Builder in the preparation of
the GMP Proposal to supplement the information contained in the drawings and specifications;
.4 the Date of Substantial Completion and/or the Date of Final Completion upon which the
proposed GMP is based, and the Schedule of Work upon which the Date of Substantial
Completion and/or the Date of Final Completion is based;
.5 a schedule of applicable alternate prices;
,6 a schedule of applicable unit prices;
.7 a statement of Additional Services included, if any;
.8 the time limit for acceptance of the GMP proposal;
.9 the Design-Builder's Contingency as provided in Subparagraph 3.2.7;
.10 a statement of any work to be self-performed by the Design-Builder; and
.11 a statement identifying all patented or copyrighted materials, methods or systems
selected by the Design-Builder and incorporated in the Work that are likely to require the
payment of royalties or license fees.
3.2.3 REVIEW AND ADJUSTMENT TO GMP PROPOSAL The Design-Builder shall meet with the
Owner to review the GMP Proposal. In the event that the Owner has any comments relative to the
GMP Proposal, or finds any inconsistencies or inaccuracies in the information presented, it shall
give prompt written notice of such comments or findings to the Design-Builder, who shall make
appropriate adjustments to the GMP, its basis or both.
3.2.4 ACCEPTANCE OF GMP PROPOSAL Upon acceptance by the Owner of the GMP Proposal,
as may be amended by the Design-Builder in accordance with Subparagraph 3.2.3, the GMP and its
basis shall be set forth in Amendment NO.1. The GMP and the Date of Substantial Completion
and/or the Date of Final Completion shall be subject to modification in Article 9.
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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3.2.5 FAILURE TO ACCEPT THE GMP PROPOSAL Unless the Owner accepts the GMP Proposal
in writing on or before the date specified in the GMP Proposal for such acceptance and so notifies
the Design-Builder, the GMP Proposal shall not be effective. If the Owner fails to accept the GMP
Proposal, or rejects the GMP Proposal, the Owner shall have the right to:
.1 Suggest modifications to the GMP Proposal. If such modifications are accepted in writing
by Design-Builder, the GMP Proposal shall be deemed accepted in accordance with
Subparagraph 3.2.4;
.2 Direct the Design-Builder to proceed on the basis of reimbursement as provided in Articles
7 and 8 without a GMP, in which case all references in this Agreement to the GMP shall not
be applicable; or
.3 Terminate the Agreement for convenience in accordance with Paragraph 12.3.
In the absence of a GMP the parties may establish a Date of Substantial Completion and/or a
Date of Final Completion.
3.2.6 PRE-GMP WORK Prior to the Owner's acceptance of the GMP Proposal, the Design-Builder
shall not incur any cost to be reimbursed as part of the Cost of the Work, except as provided in this
Agreement or as the Owner may specifically authorize in writing.
3.2.7 DESIGN-BUILDER'S CONTINGENCY The GMP Proposal will contain, as part of the
estimated Cost of the Work, the Design-Builder's Contingency, a sum mutually agreed upon and
monitored by the Design-Builder and the Owner for use at the Design-Builder's discretion to cover
costs which are properly reimbursable as a Cost of the Work but are not the basis for a Change
Order.
3.3 CONSTRUCTION PHASE SERVICES
3.3.1 The Construction Phase will commence upon the issuance by the Owner of a written notice to
proceed with construction. If construction commences prior to and execution of Amendment No.1,
the Decign Builder sh~1I prop~re for the Owner's written ::Ipprov~1 ~ list of the documents th~t ::Ire
3pplic~ble to the p~rt of the 'Nork '",hich the O'Nner h~s ::Iuthorized, which list sh::lll be included in the
O'o'mer'c written notice to proceed.
3.3.2 In order to complete the Work, the Design-Builder shall provide all necessary construction
supervision, inspection, construction equipment, labor, materials, tools, and subcontracted items.
3.3.3 The Design-Builder shall give all notices and comply with all laws and ordinances legally
enacted at the date of execution of the Agreement which govern the proper performance of the Work.
3.3.4 The Design-Builder shall obtain and the Owner shall pay for the building permits necessary for
the construction of the Project.
3.3.5 The Design-Builder shall keep such full and detailed accounts as are necessary for proper
financial management under this Agreement. The Owner shall be afforded access to all the
Design-Builder's records, books, correspondence, instructions, drawings, receipts, vouchers,
memoranda and similar data relating to this Agreement. The Design-Builder shall preserve all such
records for a period of three years after the final payment or longer where required by law.
3.3.6 The Design-Builder shall provide periodic written reports to the Owner on the progress of the
Work in such detail as is required by the Owner and as agreed to by the Owner and the
Design-Builder.
3.3.7 The Design-Builder shall develop a system of cost reporting for the Work, including regular
monitoring of actual costs for activities in progress and estimates for uncompleted tasks and
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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proposed changes in the Work. The reports shall be presented to the Owner at mutually agreeable
intervals.
3.3.8 The Design-Builder shall regularly remove debris and waste materials at the Worksite
resulting from the Work. Prior to discontinuing Work in an area, the Design-Builder shall clean the
area and remove all rubbish and its construction equipment, tools, machinery, waste and surplus
materials. The Design-Builder shall minimize and confine dust and debris resulting from construction
activities. At the completion of the Work, the Design-Builder shall remove from the Worksite all
construction equipment, tools, surplus materials, waste materials and debris.
3.3.9 The Design-Builder shall prepare and submit to the Owner:
final marked up as-built drawings
upd~ted electronic doto
(Exclude one of the above)
in general documenting how the various elements of the Work including changes were actually
constructed or installed, or as defined by the parties by attachment to this Agreement.
3.4 SCHEDULE OF THE WORK. The Design-Builder shall prepare and submit a Schedule of Work for
the Owner's acceptance and written approval as to milestone dates. This schedule shall indicate the dates
for the start and completion of the various stages of the Work, including the dates when information and
approvals are required from the Owner. The Schedule shall be revised as required by the conditions of the
Work.
3.5 SAFETY OF PERSONS AND PROPERTY
3.5.1 SAFETY PRECAUTIONS AND PROGRAMS. The Design-Builder shall have overall
responsibility for safety precautions and programs in the performance of the Work. While the
provisions of this Paragraph establish the responsibility for safety between the Owner and the
Design-Builder, they do not relieve Subcontractors of their responsibility for the safety of persons or
property in the performance of their work, nor for compliance with the provisions of applicable laws
and regulations.
3.5.2 The Design-Builder shall seek to avoid injury, loss or damage to persons or property by taking
reasonable steps to protect:
.1 its employees and other persons at the Worksite;
.2 materials, supplies and equipment stored at the Worksite for use in performance of the
Work; and
.3 the Project and all property located at the Worksite and adjacent to work areas, whether or
not said property or structures are part of the Project or involved in the Work.
3.5.3 DESIGN-BUilDER'S SAFETY REPRESENTATIVE. The Design-Builder shall designate an
individual at the Worksite in the employ of the Design-Builder who shall act as the Design-Builder's
designated safety representative with a duty to prevent accidents. Unless otherwise identified by the
Design-Builder in writing to the Owner, the designated safety representative shall be the
Design-Builder's project superintendent. The Design-Builder will report immediately in writing all
accidents and injuries occurring at the Worksite to the Owner. When the Design-Builder is required
to file an accident report with a public authority, the Design-Builder shall furnish a copy of the report
to the Owner.
3.5.4 The Design-Builder shall provide the Owner with copies of all notices required of the
Design-Builder by law or regulation. The Design-Builder's safety program shall comply with the
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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requirements of governmental and quasi-governmental authorities having jurisdiction over the Work.
3.5.5 Damage or loss not insured under property insurance which may arise from the performance
of the Work, to the extent of the negligence attributed to such acts or omissions of the
Design-Builder, or anyone for whose acts the Design-Builder may be liable, shall be promptly
remedied by the Design-Bui/der. Damage or loss attributable to the acts or omissions of the Owner
or Others and not to the Design-Builder shall be promptly remedied by the Owner.
3.5.6 If the Owner deems any part of the Work or Worksite unsafe, the Owner, without assuming
responsibility for the Design-Builder's safety program, may require the Design-Builder to stop
performance of the Work or take corrective measures satisfactory to the Owner, or both. If the
Design-Builder does not adopt corrective measures, the Owner may perform them and reduce by the
costs of the corrective measures the amount of the GMP, or in the absence of a GMP, the Cost of
the Work as provided in Article 8. The Design-Builder agrees to make no claim for damages, for an
increase in the GMP, compensation for Design Phase Services, the Design-Builder's Fee and/or the
Date of Substantial Completion and/or the Date of Final Completion based on the Design-Builder's
compliance with the Owner's reasonable request.
3.6 HAZARDOUS MATERIALS
3.6.1 A Hazardous Material is any substance or material identified now or in the future as hazardous
under any federal, state or local law or regulation, or any other substance or material which may be
considered hazardous or otherwise subject to statutory or regulatory requirements governing
handling, disposal and/or clean-up. The Design-Builder shall not be obligated to commence or
continue work until all Hazardous Material discovered at the Worksite has been removed, rendered
or determined to be harmless by the Owner as certified by an independent testing laboratory
approved by the appropriate government agency.
3.6.2 If after the commencement of the Work, Hazardous Material is discovered at the Project, the
Design-Builder shall be entitled to immediately stop Work in the affected area. The Design-Builder
shall report the condition to the Owner and, if required, the government agency with jurisdiction.
3.6.3 The Design-Builder shall not be required to perform any Work relating to or in the area of
Hazardous Material without written mutual agreement.
3.6.4 The Owner shall be responsible for retaining an independent testing laboratory to determine
the nature of the material encountered and whether it is a Hazardous Material requiring corrective
measures and/or remedial action. Such measures shall be the sole responsibility of the Owner, and
shall be performed in a manner minimizing any adverse effects upon the Work of the Design-Builder.
The Design-Builder shall resume Work in the area affected by any Hazardous Material only upon
written agreement between the parties after the Hazardous Material has been removed or rendered
harmless and only after approval, if necessary, of the governmental agency or agencies with
jurisdiction.
3.6.5 If the Design-Builder incurs additional costs and/or is delayed due to the presence or
remediation of Hazardous Material, the Design-Builder shall be entitled to an equitable adjustment in
the GMP, compensation for Design Phase Services, the Design-Builder's Fee and/or the Date of
Substantial Completion and/or the Date of Final Completion.
3.6.6 Provided the Design-Builder, its Subcontractors, Material Suppliers and Subsubcontractors,
and the agents, officers, directors and employees of each of them, have not, acting under their own
authority, knowingly entered upon any portion of the Work containing Hazardous Materials, and to
the extent not caused by the negligent acts or omissions of the Design-Builder, its Subcontractors,
Material Suppliers and Subsubcontractors, and the agents, officers, directors and employees of each
of them, the Owner shall defend, indemnify and hold harmless the Design-Builder, its Subcontractors
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DocuBuilder™ . AGO DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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and Subsubcontractors, and the agents, officers, directors and employees of each of them, from and
against any and all direct claims, damages, losses, costs and expenses, including but not limited to
attorney's fees, costs and expenses incurred in connection with any dispute resolution process,
arising out of or relating to the performance of the Work in any area affected by Hazardous Material.
To the fullest extent permitted by law, such indemnification shall apply regardless of the fault,
negligence, breach of warranty or contract, or strict liability of the Owner.
3.6.7 Material Safety Data (MSD) sheets as required by law and pertaining to materials or
substances used or consumed in the performance of the Work, whether obtained by the
Design-Builder, Subcontractors, the Owner or Others, shall be maintained at the Project by the
Design-Builder and made available to the Owner and Subcontractors.
3.6.8 During the Design-Builder's performance of the Work, the Design-Builder shall be responsible
for the proper handling of all materials brought to the Worksite by the Design-Builder. Upon the
issuance of the Certificate of Substantial Completion, the Owner shall be responsible under this
Paragraph for materials and substances brought to the site by the Design-Builder if such materials
or substances are required by the Contract Documents.
3.6.9 The terms of this Paragraph 3.6 shall survive the completion of the Work under this
Agreement and/or any termination of this Agreement.
3. 7 ROYALTIES, PATENTS AND COPYRIGHTS. The Design-Builder shall pay all royalties and license
fees which may be due on the inclusion of any patented or copyrighted materials, methods or systems
selected by the Design-Builder and incorporated in the Work. The Design-Builder shall defend, indemnify
and hold the Owner harmless from all suits or claims for infringement of any patent rights or copyrights
arising out of such selection. The Owner agrees to defend, indemnify and hold the Design-Builder
harmless from all suits or claims of infringement of any patent rights or copyrights arising out of any
patented or copyrighted materials, methods or systems specified by the Owner.
3.8 WARRANTIES AND COMPLETION
3.8.1 The Design-Builder warrants that all materials and equipment furnished under the Construction
Phase of this Agreement will be new unless otherwise specified, of good quality, in conformance
with the Contract Documents, and free from defective workmanship and materials. Warranties shall
commence on the Date of Substantial Completion of the Work or of a designated portion. The
Design-Builder agrees to correct all construction performed under this Agreement which is defective
in workmanship or materials within a period of one year from the Date of Substantial Completion or
for such longer periods of time as may be set forth with respect to specific warranties required by
the Contract Documents.
3.8.2 To the extent products, equipment, systems or materials incorporated in the Work are
specified and purchased by the Owner, they shall be covered exclusively by the warranty of the
manufacturer. There are no warranties which extend beyond the description on the face of any such
warranty. To the extent products, equipment, systems or materials incorporated in the Work are
specified by the Owner but purchased by the Design-Builder and are inconsistent with selection
criteria that otherwise would have been followed by the Design-Builder, the Design-Builder shall
assist the Owner in pursuing warranty claims. ALL OTHER WARRANTIES EXPRESSED OR
IMPLIED INCLUDING THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
3.8.3 The Design-Builder shall secure required certificates of inspection, testing or approval and
deliver them to the Owner.
3.8.4 The Design-Builder shall collect all written warranties and equipment manuals and deliver
them to the Owner in a format directed by the Owner.
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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3.8.5 With the assistance of the Owner's maintenance personnel, the Design-Builder shall direct the
checkout of utilities and start up operations, and adjusting and balancing of systems and equipment
for readiness.
3.9 CONFIDENTIALITY. The Design-Builder shall treat as confidential and not disclose to third persons,
except Subcontractors, Subsubcontractors and the ArchitecUEngineer as is necessary for the
performance of the Work, or use for its own benefit any of the Owner's developments, confidential
information, know-how, discoveries, production methods and the like that may be disclosed to the
Design-Builder or which the Design-Builder may acquire in connection with the Work. The Owner shall
treat as confidential information all of the Design-Builder's estimating systems and historical and
parameter cost data that may be disclosed to the Owner in connection with the performance of this
Agreement.
3.10 ADDITIONAL SERVICES. The Design-Builder shall provide or procure the following Additional
Services upon the request of the Owner. A written agreement between the Owner and the Design-Builder
shall define the extent of such Additional Services before they are performed by the Design-Builder. If a
GMP has been established for the Work or any portion of the Work, such Additional Services shall be
considered a Change in the Work, unless they are specifically included in the statement of the basis of
the GMP as set forth in Amendment NO.1,
.1 Development of the Owner's Program, establishing the Project budget, investigating sources of
financing, general business planning and other information and documentation as may be required to
establish the feasibility of the Project.
.2 Consultations, negotiations, and documentation supporting the procurement of Project financing.
.3 Surveys, site evaluations, legal descriptions and aerial photographs.
.4 Appraisals of existing equipment, existing properties, new equipment and developed properties.
.5 Soils, subsurface and environmental studies, reports and investigations required for submission
to governmental authorities or others having jurisdiction over the Project.
.6 Consultations and representations before governmental authorities or others having jurisdiction
over the Project other than normal assistance in securing building permits.
.7 Investigation or making measured drawings of existing conditions or the reasonably required
verification of Owner -provided drawings and information.
.8 Artistic renderings, models and mockups of the Project or any part of the Project or the Work.
.9 Inventories of existing furniture, fixtures, furnishings and equipment which might be under
consideration for incorporation into the Work.
.10 Interior design and related services including procurement and placement of furniture,
furnishings, artwork and decorations.
.11 Making revisions to the Schematic Design, Design Development, Construction Documents or
documents forming the basis of the GMP after they have been approved by the Owner, and which
are due to causes beyond the control of the Design-Builder. Causes beyond the control of the
Design-Builder do not include acts or omissions on the part of Subcontractors, Material Suppliers,
Subsubcontractors or the ArchitecUEngineer.
.12 Design, coordination, management, expediting and other services supporting the procurement
of materials to be obtained, or work to be performed, by the Owner, including but not limited to
telephone systems, computer wiring networks, sound systems, alarms, security systems and other
specialty systems which are not a part of the Work.
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999. The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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.13 Estimates, proposals, appraisals, consultations, negotiations and services in connection with
the repair or replacement of an insured loss, provided such repair or replacement did not result from
the negligence of the Design-Builder.
.14 The premium portion of overtime work ordered by the Owner, including productivity impact
costs, other than that required by the Design-Builder to maintain the Schedule of Work.
.15 Out-of-town travel by the Architect/Engineer in connection with the Work, except between the
Architect/Engineer's office, the Design-Builder's office, the Owner's office and the Worksite.
.16 Obtaining service contractors and training maintenance personnel, assisting and consulting in
the use of systems and equipment after the initial start up.
.17 Services for tenant or rental spaces not a part of this Agreement.
.18 Services requested by the Owner or required by the Work which are not specified in the
Contract Documents and which are not normally part of generally accepted design and construction
practice.
.19 Serving or preparing to serve as an expert witness in connection with any proceeding, legal or
otherwise, regarding the Project.
.20 Document reproduction exceeding the limits provided for in this Agreement.
3.11 DESIGN-BUILDER'S REPRESENTATIVE The Design-Builder shall designate a person who shall be
the Design-Builder's authorized representative. The Design-Builder's Representative is Ivan Martin.
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 INFORMATION AND SERVICES PROVIDED BY OWNER
4.1.1 The Owner shall provide full information in a timely manner regarding requirements for the
Project, including the Owner's Program and other relevant information.
4.1.2 The Owner shall provide:
.1 all available information describing the physical characteristics of the site, including
surveys, site evaluations, legal descriptions, existing conditions, subsurface and environmental
studies, reports and investigations;
.2 inspection and testing services during construction as required by law or as mutually
agreed; and
.3 unless otherwise provided in the Contract Documents, necessary approvals, site plan
review, rezoning, easements and assessments, fees and charges required for the
construction, use, occupancy or renovation of permanent structures, including legal and other
required services.
4.1.3 The Owner shall provide reasonable evidence satisfactory to the Design-Builder, prior to
commencing the Work and during the progress of the Work, that sufficient funds are available and
committed for the entire cost of the Project, including a reasonable allowance for changes in the
Work as may be approved in the course of the Work. Unless such reasonable evidence is provided,
the Design-Builder shall not be required to commence or continue the Work. The Design-Builder
may stop Work after seven (7) days' written notice to the Owner if such evidence is not presented
within a reasonable time. The failure of the Design-Builder to insist upon the providing of this
evidence at anyone time shall not be a waiver of the Owner's obligation to make payments pursuant
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software.
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to this Agreement, nor shall it be a waiver of the Design-Builder's right to require that such evidence
be provided at a later date.
4.1.4 The Design-Builder shall be entitled to rely on the completeness and accuracy of the
information and services required by this Paragraph 4.1.
4.2 RESPONSIBILITIES DURING DESIGN PHASE
4.2.1 The Owner shall provide the Owner's Program at the inception of the Design Phase and shall
review and timely approve in writing schedules, estimates, Preliminary Estimate, Schematic Design
Documents, Design Development Documents and Construction Documents furnished during the
Design Phase as set forth in Paragraph 3.1, and the GMP Proposal as set forth in Paragraph 3.2.
4.3 RESPONSIBILITIES DURING CONSTRUCTION PHASE
4.3.1 The Owner shall review the Schedule of the Work as set forth in Paragraph 3.4 and timely
approve the milestone dates set forth.
4.3.2 If the Owner becomes aware of any error, omission or failure to meet the requirements of the
Contract Documents or any fault or defect in the Work, the Owner shall give prompt written notice to
the Design-Builder.
4.3.3 The Owner shall communicate with the Design-Builder's Subcontractors, Material Suppliers
and the Architect/Engineer only through or in the presence of the Design-Builder. The Owner shall
have no contractual obligations to Subcontractors, suppliers, or the Architect/Engineer.
4.3.4 The Owner shall provide insurance for the Project as provided in Article 11.
4.4 OWNER'S REPRESENTATIVE. The Owner's Representative is Reverend Robert Woodall. The
Representative:
.1 shall be fully acquainted with the Project;
.2 agrees to furnish the information and services required of the Owner pursuant to Paragraph 4.1
so as not to delay the Design-Builder's Work; and
.3 shall have authority to bind the Owner in all matters requiring the Owner's approval,
authorization or written notice. If the Owner changes its representative or the representatives
authority as listed above, the Owner shall notify the Design-Builder in writing in advance.
4.5 TAX EXEMPTION. If in accordance with the Owner's direction the Design-Builder claims an
exemption for taxes, the Owner shall defend, indemnify and hold the Design-Builder harmless for all
liability, penalty, interest, fine, tax assessment, attorney's fees or other expense or cost incurred by the
Design-Builder as a result of any action taken by the Design-Builder in accordance with the Owner's
direction.
ARTICLE 5
SUBCONTRACTS
Work not performed by the Design-Builder with its own forces shall be performed by Subcontractors or the
Architect/Engineer.
5.1 RETAINING SUBCONTRACTORS. The Design-Builder shall not retain any subcontractor to whom
the Owner has a reasonable and timely objection, provided that the Owner agrees to compensate the
Design-Builder for any additional costs incurred by the Design-Builder as a result of such objection. The
Owner may propose subcontractors to be considered by the Design-Builder. The Design-Builder shall not
be required to retain any subcontractor to whom the Design-Builder has a reasonable objection.
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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5.2 MANAGEMENT OF SUBCONTRACTORS. The Design-Builder shall be responsible for the
management of the Subcontractors in the performance of their work.
5.3 ASSIGNMENT OF SUBCONTRACT AGREEMENTS. The Design-Builder shall provide for assignment
of subcontract agreements in the event that the Owner terminates this Agreement for cause as provided in
Paragraph 12.2. Following such termination, the Owner shall notify in writing those Subcontractors whose
assignments will be accepted, subject to the rights of sureties.
5.4 BINDING OF SUBCONTRACTORS AND MATERIAL SUPPLIERS. The Design-Builder agrees to bind
every Subcontractor and Material Supplier (and require every Subcontractor to so bind its
Subsubcontractors and Material Suppliers) to all the provisions of this Agreement and the Contract
Documents as they apply to the Subcontractors and Material Suppliers portions of the Work.
5.5 LABOR RELATIONS See Exhibit #2
ARTICLE 6
TIME
6.1 DATE OF COMMENCEMENT. The Date of Commencement is the effective date of this Agreement as
first written in Article 1 unless otherwise set forth below: (Insert here any special provisions concerning
Notices to Proceed and the Date of Commencement.) or the date when this Agreement is executed by all
parties, whichever is the latter.
The Work shall proceed in general accordance with the Schedule of Work as such schedule may be
amended from time to time, subject, however, to other provisions of this Agreement.
6.2 SUBSTANTIAL/FINAL COMPLETION. Unless the parties agree otherwise, the Date of Substantial
Completion and/or the Date of Final Completion shall be established in Amendment NO.1 to this
Agreement subject to adjustments as provided for in the Contract Documents. The Owner and the
Design-Builder may agree not to establish such dates, or in the alternative, to establish one but not the
other of the two dates. If such dates are not established upon the execution of this Agreement, at such
time as a GMP is accepted a Date of Substantial Completion and/or Date of Final Completion of the Work
shall be established in Amendment NO.1. If a GMP is not established and the parties desire to establish a
Date of Substantial Completion and/or Date of Final Completion, it shall be set forth in Amendment NO.1.
6.2.1 Time limits stated in the Contract Documents are of the essence.
6.2.2 Unless instructed by the Owner in writing, the Design-Builder shall not knowingly commence
the Work before the effective date of insurance that is required to be provided by the Design-Builder
or the Owner.
6.3 DELAYS IN THE WORK
6.3.1 If causes beyond the Design-Builder's control delay the progress of the Work, then the GMP,
compensation for Design Phase Services, the Design-Builder's Fee and/or the Date of Substantial
Completion and/or the Date of Final Completion shall be modified by Change Order as appropriate.
Such causes shall include but not be limited to: changes ordered in the Work, acts or omissions of
the Owner or Others, the Owner preventing the Design-Builder from performing the Work pending
dispute resolution, Hazardous Materials or differing site conditions. Causes beyond the control of the
Design-Builder do not include acts or omissions on the part of the Design-Builder, Subcontractors,
Subsubcontractors, Material Suppliers or the ArchitecUEngineer.
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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6.3.2 To the extent a delay in the progress of the Work is caused by adverse weather conditions
not reasonably anticipated, fire, unusual transportation delays, general labor disputes impacting the
Project but not specifically related to the Worksite, governmental agencies, or unavoidable
accidents or circumstances, the Design-Builder shall only be entitled to its actual costs without fee
and an extension of the Date of Substantial Completion and/or the Date of Final Completion.
6.3.3 In the event delays to the Project are encountered for any reason, the parties agree to
undertake reasonable steps to mitigate the effect of such delays.
ARTICLE 7
COMPENSATION
7.1 DESIGN PHASE COMPENSATION
7.1.1 To the extent required by applicable law, the cost of services performed directly by the
Architect/Engineer is computed separately and is independent from the Design-Builder's
compensation for work or services performed directly by the Design-Builder; these costs shall be
shown as separate items on applications for payment. If an Architect/Engineer is retained by the
Design-Builder, the payments to the Architect/Engineer shall be as detailed in a separate agreement
between the Design-Builder and the Architect/Engineer.
7.1.2 The Owner shall compensate the Design-Builder for services performed during the Design
Phase as described in Paragraph 3.1.1 through 3.1.6, including preparation of a GMP Proposal, if
applicable, as described in Paragraph 3.2, as follows:
(State whether a stipulated sum, actual cost, or other basis. If a stipulated sum, state what
portion of the sum shall be payable each month.) See Exhibit #3.
7.1.3 Compensation for Design Phase Services, as part of the Work, shall include the
Design-Builder's Fee as established in Paragraph 7.3, paid in proportion to the services performed,
subject to adjustment as provided in Paragraph 7.4.
7.1.4 Compensation for Design Phase Services shall be equitably adjusted if such services extend
beyond six months from the date of this Agreement for reasons beyond the reasonable control of the
Design-Builder or as provided in Paragraph 9.1. For changes in Design Phase services,
compensation shall be adjusted as follows: Per 9.1.2
7.1.5 Within fifteen (15) days after receipt of each monthly application for payment, the Owner shall
give written notice to the Design-Builder of the Owner's acceptance or rejection, in whole or in part,
of such application for payment. Within fifteen (15) days after accepting such application, the Owner
shall pay directly to the Design-Builder the appropriate amount for which application for payment is
made, less amounts previously paid by the Owner. If such application is rejected in whole or in part,
the Owner shall indicate the reasons for its rejection. If the Owner and the Design-Builder cannot
agree on a revised amount then, within fifteen (15) days after its initial rejection in part of such
application, the Owner shall pay directly to the Design-Builder the appropriate amount for those
items not rejected by the Owner for which application for payment is made, less amounts previously
paid by the Owner. Those items rejected by the Owner shall be due and payable when the reasons
for the rejection have been removed.
7.1.6 If the Owner fails to pay the Design-Builder at the time payment of any amount becomes due,
then the Design-Builder may, at any time thereafter, upon serving written notice that the Work will be
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BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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stopped within seven (7) days after receipt of the notice by the Owner, and after such seven (7) day
period, stop the Work until payment of the amount owing has been received.
7.1.7 Payments due pursuant to Subparagraph 7.1.5, may bear interest from the date payment is
due at the prime rate prevailing at the location of Project.
7.2 CONSTRUCTION PHASE COMPENSATION
7.2.1 The Owner shall compensate the Design-Builder for Work performed following the
commencement of the Construction Phase on the following basis:
.1 the Cost of the Work as allowed in Article 8; and
.2 the Design-Builder's Fee paid in proportion to the services performed subject to adjustment
as provided in Paragraph 7.4.
7.2.2 The compensation to be paid under this Paragraph 7.2 shall be limited to the GMP
established in Amendment No.1, as the GMP may be adjusted under Article 9.
7.2.3 Payment for Construction Phase Services shall be as set forth in Article 10. If Design Phase
Services continue to be provided after construction has commenced, the Design-Builder shall
continue to be compensated as provided in Paragraph 7.1, or as mutually agreed.
7.3 DESIGN-BUILDER'S FEE. The Design-Builder's Fee shall be as follows, subject to adjustment as
provided in Paragraph 7.4:
(State whether a stipulated sum or other basis. If a stipulated sum, state what portion of the sum
shall be payable each month.) 8% of the total Guaranteed Maximum Price.
7.4 ADJUSTMENT IN THE DESIGN-BUILDER'S FEE Adjustment in the Design-Builder's Fee shall be
made as follows:
.1 for changes in the Work as provided in Article 9, the Design-Builder's Fee shall be adjusted as
follows: Per 9.1.2
.2 for delays in the Work not caused by the Design-Builder, except as provided in Subparagraph
6.3.2, there will be an equitable adjustment in the Design-Builder's Fee to compensate the
Design-Builder for increased expenses; and
.3 if the Design-Builder is placed in charge of managing the replacement of an insured or uninsured
loss, the Design-Builder shall be paid an additional fee in the same proportion that the
Design-Builder's Fee bears to the estimated Cost of the Work for the replacement.
ARTICLE 8
COST OF THE WORK
The Owner agrees to pay the Design-Builder for the Cost of the Work as defined in this Article. This
payment shall be in addition to the Design-Builder's Fee stipulated in Paragraph 7.3.
8.1 COST ITEMS FOR DESIGN PHASE SERVICES
8.1.1 Compensation for Design Phase Services as provided in Paragraph 7.1.
8.2 COST ITEMS FOR CONSTRUCTION PHASE SERVICES
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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8.2.1 Wages paid for labor in the direct employ of the Design-Builder in the performance of the
Work.
8.2.2 Salaries of the Design-Builder's employees when stationed at the field office, in whatever
capacity employed, employees engaged on the road expediting the production or transportation of
material and equipment, and employees from the principal or branch office performing the functions
listed below: See Exhibit #4
8.2.3 Cost of all employee benefits and taxes including but not limited to workers compensation,
unemployment compensation, Social Security, health, welfare, retirement and other fringe benefits
as required by law, labor agreements, or paid under the Design-Builder's standard personnel policy,
insofar as such costs are paid to employees of the Design-Builder who are included in the Cost of
the Work under Subparagraphs 8.2.1 and 8.2.2.
8.2.4 Reasonable transportation, travel, hotel and moving expenses of the Design-Builder's
personnel incurred in connection with the Work.
8.2.5 Cost of all materials, supplies and equipment incorporated in the Work, including costs of
inspection and testing if not provided by the Owner, transportation, storage and handling.
8.2.6 Payments made by the Design-Builder to Subcontractors for work performed under this
Agreement.
8.2.7 Fees and expenses for design services procured or furnished by the Design-Builder except as
provided by the Architect/Engineer and compensated in Paragraph 7.1.
8.2.8 Cost, including transportation and maintenance of all materials, supplies, equipment,
temporary facilities and hand tools not owned by the workers that are used or consumed in the
performance of the Work, less salvage value and/or residual value; and cost less salvage value on
such items used, but not consumed that remain the property of the Design-Builder.
8.2.9 Rental charges of all necessary machinery and equipment, exclusive of hand tools owned by
workers, used at the Worksite, whether rented from the Design-Builder or Others, including
installation, repair and replacement, dismantling, removal, maintenance, transportation and delivery
costs. Rental from unrelated third parties shall be reimbursed at actual cost. Rentals from the
Design-Builder or its affiliates, subsidiaries or related parties shall be reimbursed at the prevailing
rates in the locality of the Worksite up to eighty-five percent (85%) of the value of the piece of
equipment.
8.2.10 Cost of the premiums for all insurance and surety bonds which the Design-Builder is required
to procure or deems necessary, and approved by the Owner.
8.2.11 Sales, use, gross receipts or other taxes, tariffs or duties related to the Work for which the
Design-Builder is liable.
8.2.12 Permits, fees, licenses, tests, royalties, damages for infringement of patents and/or
copyrights, including costs of defending related suits for which the Design-Builder is not responsible
as set forth in Paragraph 3.7, and deposits lost for causes other than the Design-Builder's
negligence.
8.2.13 Losses, expenses or damages to the extent not compensated by insurance or otherwise,
and the cost of corrective work and/or redesign during the Construction Phase and for a period of
one year following the Date of Substantial Completion, provided that such corrective work and/or
redesign did not arise from the negligence of the Design-Builder.
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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8.2.14 All costs associated with establishing, equipping, operating, maintaining and demobilizing the
field office.
8.2.15 Reproduction costs, photographs, cost of telegrams, facsimile transmissions, long distance
telephone calls, data processing services, postage, express delivery charges, telephone service at
the Worksite and reasonable petty cash expenses at the field office.
8.2.16 All water, power and fuel costs necessary for the Work.
8.2.17 Cost of removal of all non-hazardous substances, debris and waste materials.
8.2.18 Costs incurred due to an emergency affecting the safety of persons and/or property.
8.2.19 Legal, mediation and arbitration fees and costs, other than those arising from disputes
between the Owner and the Design-Builder, reasonably and properly resulting from the
Design-Builder's performance of the Work.
8.2.20 All costs directly incurred in the performance of the Work or in connection with the Project,
and not included in the Design-Builder's Fee as set forth in Article 7, which are reasonably inferable
from the Contract Documents as necessary to produce the intended results.
8.3 DISCOUNTS. All discounts for prompt payment shall accrue to the Owner to the extent such
payments are made directly by the Owner. To the extent payments are made with funds of the
Design-Builder, all cash discounts shall accrue to the Design-Builder. All trade discounts, rebates and
refunds, and all returns from sale of surplus materials and equipment, shall be credited to the Cost of the
Work.
ARTICLE 9
CHANGES IN THE WORK
Changes in the Work which are within the general scope of this Agreement may be accomplished, without
invalidating this Agreement, by Change Order, Work Change Directive, or a minor change in the work,
subject to the limitations stated in the Contract Documents.
9.1 CHANGE ORDER
9.1.1 The Design-Builder may request and/or the Owner, without invalidating this Agreement, may
order changes in the Work within the general scope of the Contract Documents consisting of
additions, deletions or other revisions to the GMP or the estimated cost of the work, compensation
for Design Phase Services, the Design-Builder's Fee and/or the Date of Substantial Completion
and/or the Date of Final Completion being adjusted accordingly. All such changes in the Work shall
be authorized by applicable Change Order, and shall be performed under the applicable conditions of
the Contract Documents.
9.1.2 Each adjustment in the GMP and/or estimated Cost of the Work resulting from a Change
Order shall clearly separate the amount attributable to compensation for Design Phase Services,
other Cost of the Work and the Design-Builder's Fee, with the Design-Builder's Fee not to exceed_
fifteen percent f%t.-(15%). Any credit to the Owner for a change in the work shall be the cost of the
work only.
9.1.3 The Owner and the Design-Builder shall negotiate in good faith an appropriate adjustment to
the GMP or the estimated Cost of the Work, compensation for Design Phase Services, the
Design-Builder's Fee and/or the Date of Substantial Completion and/or the Date of Final Completion
and shall conclude these negotiations as expeditiously as possible. Acceptance of the Change
Order and any adjustment in the GMP, the estimated Cost of the Work, compensation for Design
Phase Services, the Design-Builder's Fee and/or the Date of Substantial Completion and/or the Date
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BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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of Final Completion shall not be unreasonably withheld.
9.2 WORK CHANGE DIRECTIVES
9.2.1 The Owner may issue a written Work Change Directive directing a change in the Work prior to
reaching agreement with the Design-Builder on the adjustment, if any, in the GMP, estimated Cost
of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or the Date of Final
Completion, and if appropriate, the compensation for Design Phase Services.
9.2.2 The Owner and the Design-Builder shall negotiate expeditiously and in good faith for
appropriate adjustments, as applicable. to the GMP, estimated Cost of the Work, the
Design-Builder's Fee, the Date of Substantial Completion and/or the Date of Final Completion, and if
appropriate the compensation for Design Phase Services, arising out of Work Change Directives. As
the changed work is completed, the Design Builder shall submit its costs for such work with its
application for payment beginning with the next application for payment within thirty (30) days of the
issuance of the Work Change Directive. Pending final determination of cost to the Owner, amounts
not in dispute may be included in applications for payment and shall be paid by Owner.
9.2.3 If the Owner and the Design-Builder agree upon the adjustments in the GMP, estimated Cost
of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or the Date of Final
Completion, and if appropriate the compensation for Design Phase Services, for a change in the
Work directed by a Work Change Directive, such agreement shall be the subject of an appropriate
Change Order. The Change Order shall include all outstanding Change Directives issued since the
last Change Order.
9.3 MINOR CHANGES IN THE WORK
9.3.1 The Design-Builder may make minor changes in the design and construction of the Project
consistent with the intent of the Contract Documents which do not involve an adjustment in the
GMP, estimated Cost of the Work, the Design-Builder's Fee, the Date of Substantial Completion
and/or the Date of Final Completion, and do not materially and adversely affect the design of the
Project, the quality of any of the materials or equipment specified in the Contract Documents, the
performance of any materials, equipment or systems specified in the Contract Documents, or the
quality of workmanship required by the Contract Documents.
9.3.2 The Design-Builder shall promptly inform the Owner in writing of any such changes and shall
record such changes on the Design-Build Documents maintained by the Design-Builder.
9.4 UNKNOWN CONDITIONS. If in the performance of the Work the Design-Builder finds latent,
concealed or subsurface physical conditions which materially differ from the conditions the Design-Builder
reasonably anticipated, or if physical conditions are materially different from those normally encountered
and generally recognized as inherent in the kind of work provided for in this Agreement, then the GMP,
estimated Cost of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or the Date
of Final Completion, and if appropriate the compensation for Design Phase Services, shall be equitably
adjusted by Change Order within a reasonable time after the conditions are first observed. The
Design-Builder shall provide the Owner with written notice within the time period set forth in Paragraph 9.6.
9.5 DETERMINATION OF COST
9.5.1 An increase or decrease in the GMP and/or estimated Cost of the Work resulting from a
change in the Work shall be determined by one or more of the following methods:
.1 unit prices set forth in this Agreement or as subsequently agreed;
.2 a mutually accepted, itemized lump sum;
.3 costs determined as defined in Paragraph 7.2 and Article 8 and a mutually acceptable
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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Design-Builder's Fee as determined in Subparagraph 7.4.1; or
.4 if an increase or decrease cannot be agreed to as set forth in Clauses 9.5.1.1 through
9.5.1.3 above, and the Owner issues a Work Change Directive, the cost of the change in the
Work shall be determined by the reasonable actual expense and savings of the performance of
the Work resulting from the change. If there is a net increase in the GMP, the Design-Builder's
Fee shall be adjusted as set forth in Subparagraph 7.4.1. In case of a net decrease in the
GMP, the Design-Builder's Fee shall not be adjusted unless ten percent (10%) or more of the
Project is deleted. The Design-Builder shall maintain a documented, itemized accounting
evidencing the expenses and savings.
9.5.2 If unit prices are indicated in the Contract Documents or are subsequently agreed to by the
parties, but the character or quantity of such unit items as originally contemplated is so different in a
proposed Change Order that the original unit prices will cause substantial inequity to the Owner or
the Design-Builder, such unit prices shall be equitably adjusted.
9.5.3 If the Owner and the Design-Builder disagree as to whether work required by the Owner is
within the scope of the Work, the Design-Builder shall furnish the Owner with an estimate of the
costs to perform the disputed work in accordance with the Owner's interpretations. If the Owner
issues a written order for the Design-Builder to proceed, the Design-Builder shall perform the
disputed work and the Owner shall pay the Design-Builder fifty percent (50%) of its estimated cost to
perform the work. In such event, both parties reserve their rights as to whether the work was within
the scope of the Work. The Owner's payment does not prejudice its right to be reimbursed should it
be determined that the disputed work was within the scope of Work. The Design-Builder's receipt of
payment for the disputed work does not prejudice its right to receive full payment for the disputed
work should it be determined that the disputed work is not within the scope of the Work.
9.6 CLAIMS FOR ADDITIONAL COST OR TIME. For any claim for an increase in the GMP, estimated
Cost of the Work, the Design-Builder's Fee and the Date of Substantial Completion and/or the Date of
Final Completion, and if appropriate the compensation for Design Phase Services, the Design-Builder shall
give the Owner written notice of the claim within twenty-one (21) days after the occurrence giving rise to
the claim or within twenty-one (21) days after the Design-Builder first recognizes the condition giving rise
to the claim, whichever is later. Except in an emergency, notice shall be given before proceeding with the
Work. Claims for design and estimating costs incurred in connection with possible changes requested by
the Owner, but which do not proceed, shall be made within twenty-one (21) days after the decision is
made not to proceed. Any change in the GMP, estimated Cost of the Work, the Design-Builder's Fee, the
Date of Substantial Completion and/or the Date of Final Completion, and if appropriate the compensation
for Design Phase Services, resulting from such claim shall be authorized by Change Order.
9.7 EMERGENCIES. In any emergency affecting the safety of persons and/or property, the
Design-Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the
GMP, estimated Cost of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or
the Date of Final Completion, and if appropriate the compensation for Design Phase Services, on account
of emergency work shall be determined as provided in this Article.
9.8 CHANGES IN LAW. In the event any changes in laws or regulations affecting the performance of the
Work are enacted after either the date of this Agreement or the date a GMP Proposal is accepted by the
Owner and set forth in Amendment NO.1 to this Agreement, whichever occurs later, the GMP, estimated
Cost of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or the Date of Final
Completion, and if appropriate the compensation for Design Phase Services, shall be equitably adjusted
by Change Order.
ARTICLE 10
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BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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PAYMENT FOR CONSTRUCTION PHASE SERVICES
10.1 PROGRESS PAYMENTS
10.1.1 On the last day of each month after the Construction Phase has commenced, the
Design-Builder shall submit to the Owner an application for payment consisting of the Coct of tho
Work porformod up to tRe percentage of the work completed up to the last day of the month,
including the cost of material suitably stored on the Worksite or at other locations approved by the
Owner, along with a proportionate share of the Design-Builder's Fee. Approval of payment
applications for such stored materials shall be conditioned upon submission by the Design-Builder of
bills of sale and applicable insurance or such other procedures satisfactory to the Owner to establish
the Owner's title to such materials, or otherwise to protect the Owner's interest, including
transportation to the site. Prior to submission of the next application for payment, the Design-Builder
shall furnish to the Owner a statement accounting for the disbursement of funds received under the
previous application. The extent of such statement shall be as agreed upon between the Owner and
the Design-Builder.
10.1.2 Within ten (10) days after receipt of each monthly application for payment, the Owner shall
give written notice to the Design-Builder of the Owner's acceptance or rejection, in whole or in part,
of such application for payment. Within fifteen (15) days after accepting such application, the Owner
shall pay directly to the Design-Builder the appropriate amount for which application for payment is
made, less amounts previously paid by the Owner. If such application is rejected in whole or in part,
the Owner shall indicate the reasons for its rejection. If the Owner and the Design-Builder cannot
agree on a revised amount then, within fifteen (15) days after its initial rejection in part of such
application, the Owner shall pay directly to the Design-Builder the appropriate amount for those
items not rejected by the Owner for which application for payment is made, less amounts previously
paid by the Owner. Those items rejected by the Owner shall be due and payable when the reasons
for the rejection have been removed.
10.1.3 If the Owner fails to pay the Design-Builder at the time payment of any amount becomes
due, then the Design-Builder may, at any time thereafter, upon serving written notice that the Work
will be stopped within seven (7) days after receipt of the notice by the Owner, and after such seven
day period, stop the Work until payment of the amount owing has been received.
10.1.4 Payments due but unpaid pursuant to Subparagraph 10.1.2, less any amount retained
pursuant to Paragraphs 10.2 and 10.3 may bear interest from the date payment is due at the prime
rate prevailing at the place of the Project.
10.1.5 The Design-Builder warrants and guarantees that title to all Work, materials and equipment
covered by an application for payment, whether incorporated in the Project or not, will pass to the
Owner upon receipt of such payment by the Design-Builder, free and clear of all liens, claims,
security interests or encumbrances, hereinafter referred to as liens.
10.1.6 The Owner's progress payment, occupancy or use of the Project, whether in whole or in part,
shall not be deemed an acceptance of any Work not conforming to the requirements of the Contract
Documents.
10.1.7 Upon Substantial Completion of the Work, the Owner shall pay the Design-Builder the
unpaid balance of the Cost of the Work, compensation for Design Phase Services and the
Design-Builder's Fee, less one-hundred-fifty percent (150%) of the cost of completing any unfinished
items as agreed to between the Owner and the Design-Builder as to extent and time for completion.
The Owner thereafter shall pay the Design-Builder monthly the amount retained for unfinished items
as each item is completed.
10.2 RETAINAGE. From each progress payment made prior to the time Substantial Completion of the
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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Work has been reached, the Owner shall retain five percent (~ %), if required, of the amount otherwise due
after deduction of any amounts as provided in Paragraph 10.3 of this Agreement. If the Owner chooses to
use this retainage provision:
.1 at the time the Work is fifty percent (50%) complete and thereafter, the Owner may choose to
withhold no more retainage and pay the Design-Builder the full amount of what is due on account of
subsequent progress payments:
.2 once each early finishing trade Subcontractor has completed its work and that work has been
accepted by the Owner, the Owner may release final retention on such work;
.3 in lieu of retainage, the Design-Builder may furnish securities, acceptable to the Owner, to be
held by the Owner. The interest on such securities shall accrue to the Design-Builder;
.4 the Owner may, in its sole discretion, reduce the amount to be retained at any time.
10.3 ADJUSTMENT OF DESIGN-BUILDER'S APPLICATION FOR PAYMENT The Owner may adjust or
reject an application for payment or nullify a previously approved Design-Builder application for payment,
in whole or in part, as may reasonably be necessary to protect the Owner from loss or damage based
upon the following, to the extent that the Design-Builder is responsible under this Agreement:
.1 the Design-Builder's repeated failure to perform the Work as required by the Contract Documents;
.2 loss or damage arising out of or relating to this Agreement and caused by the Design-Builder to
the Owner or Others to whom the Owner may be liable:
.3 the Design-Builder's failure to properly pay the Architect/Engineer, Subcontractors or Material
Suppliers for labor, materials, equipment or supplies furnished in connection with the Work, provided
that the Owner is making payments to the Design-Builder in accordance with the terms of this
Agreement;
.4 Defective Work not corrected in a timely fashion;
.5 reasonable evidence of delay in performance of the Work such that the Work will not be
completed by the Date of Substantial Completion and/or the Date of Final Completion, and that the
unpaid balance of the GMP is not sufficient to offset any direct damages that may be sustained by
the Owner as a result of the anticipated delay caused by the Design-Builder; and
.6 reasonable evidence demonstrating that the unpaid balance of the GMP is insufficient to fund the
cost to complete the Work.
The Owner shall give written notice to the Design-Builder at the time of disapproving or nullifying all
or part of an application for payment of the specific reasons. When the above reasons for
disapproving or nullifying an application for payment are removed, payment will be made for the
amount previously withheld.
10.4 OWNER OCCUPANCY OR USE OF COMPLETED OR PARTIALLY COMPLETED WORK
10.4.1 Portions of the Work that are completed or partially completed may be used or occupied by
the Owner when (a) the portion of the Work is designated in a Certificate of Substantial Completion,
(b) appropriate insurer(s) and/or sureties consent to the occupancy or use, and (c) appropriate public
authorities authorize the occupancy or use. Such partial occupancy or use shall constitute
Substantial Completion of that portion of the Work. The Design-Builder shall not unreasonably
withhold consent to partial occupancy or use. The Owner shall not unreasonably refuse to accept
partial occupancy or use, provided such partial occupancy or use is of value to the Owner.
10.5 FINAL PAYMENT
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Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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10.5.1 Final Payment, consisting of the unpaid balance of the Cost of the Work, compensation for
Design Phase Services and the Design-Builder's Fee, shall be due and payable when the work is
fully completed. Before issuance of final payment"the Owner may request satisfactory evidence that
all payrolls, material bills and other indebtedness connected with the Work have been paid or
otherwise satisfied.
1 0.5.2 In making final payment the Owner waives all claims except for:
.1 outstanding liens;
.2 improper workmanship or defective materials appearing within one year after the Date of
Substantial Completion;
.3 work not in conformance with the Contract Documents; and
.4 terms of any special warranties required by the Contract Documents.
10.5.3 In accepting final payment, the Design-Builder waives all claims except those previously
made in writing and which remain unsettled.
ARTICLE 11
INDEMNITY, INSURANCE, BONDS, AND WAIVER OF SUBROGATION
11.1 INDEMNITY
11.1.1 To the fullest extent permitted by law, the Design-Builder shall defend, indemnify and hold
harmless the Owner, Owner's officers, directors, members, consultants, agents and employees from
all claims for bodily injury and property damage (other than to the Work itself and other property
required to be insured under Paragraph 11.5 owned by or in the custody of the Owner ), that may
arise from the performance of the Work, to the extent of the negligence attributed to such acts or
omissions by the Design-Builder, Subcontractors or anyone employed directly or indirectly by any of
them or by anyone for whose acts any of them may be liable. The Design-Builder shall not be
required to defend, indemnify or hold harmless the Owner, Owner's officers, directors, members,
consultants, agents and employees for any acts, omissions or negligence of the Owner, the Owner's
officers, directors, members, consultants, employees, agents or separate contractors.
11.1.2 To the fullest extent permitted by law, the Owner shall defend, indemnify and hold harmless
the Design-Builder, its officers, directors or members, Subcontractors or anyone employed directly or
indirectly by any of them or anyone for whose acts any of them may be liable from all claims for
bodily injury and property damage, other than property insured under Paragraph 11.5, that may arise
from the performance of work by Others, to the extent of the negligence attributed to such acts or
omissions by Others.
11.2 DESIGN-BUILDER'S LIABILITY INSURANCE
11.2.1 The Design-Builder shall obtain and maintain insurance coverage for the following claims
which may arise out of the performance of this Agreement, whether resulting from the
Design-Builder's operations or from the operations of any Subcontractor, anyone in the employ of
any of them, or by an individual or entity for whose acts they may be liable:
.1 workers compensation, disability and other employee benefit claims under acts applicable
to the Work;
.2 under applicable employers liability law, bodily injury, occupational sickness, disease or
death claims of the Design-Builder's employees;
.3 bodily injury, sickness, disease or death claims for damages to persons not employed by
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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the Design-Builder;
.4 personal injury liability claims for damages directly or indirectly related to the persons
employment by the Design-Builder or for damages to any other person;
.5 claims for physical injury to tangible property, including all resulting loss of use of that
property, to property other than the Work itself and property insured under Paragraph 11.5;
.6 bodily injury, death or property damage claims resulting from motor vehicle liability in the
use, maintenance or ownership of any motor vehicle; and
.7 contractual liability claims involving the Design-Builder's obligations under Subparagraph
11.1.1.
11.2.2 The Design-Builder's Commercial General and Automobile Liability Insurance as required by
Subparagraph 11.2.1 shall be written for not less than the following limits of liability:
.1 Commercial General Liability Insurance
a. Each Occurrence Limit $5,000,000
b. General Aggregate $5,000,000
c. Products/Completed Operations Aggregate $5,000,000
d. Personal and Advertising Injury Limit $5,000,000
.2 Comprehensive Automobile Liability Insurance
a. Combined Single Limit Bodily Injury and Property Damage
$5,000,000 Each Occurrence
b. Bodily Injury
$n/a Each Person
$n/a Each Occurrence
c. Property Damage
$n/a Each Occurrence
11.2.3 Commercial General Liability Insurance may be arranged under a single policy for the full
limits required or by a combination of underlying policies and an Excess or Umbrella Liability policy.
11.2.4 The policies shall contain a provision that coverage will not be canceled or not renewed until
at least thirty (30) days prior written notice has been given to the Owner. Certificates of insurance
showing required coverage to be in force shall be filed with the Owner prior to commencement of the
Work.
11.2.5 Products and Completed Operations insurance shall be maintained for a minimum period of
at least two year(s) after either final payment or Substantial Completion ninety (90) d:!ys following
the D3to of, whichever is earlier.
11.3 PROFESSIONAL LIABILITY INSURANCE. The Design-Builder shall obtain, either itself or through
the Architect/Engineer, professional liability insurance for claims arising from the negligent performance of
professional services under this Agreement, which shall be:
General Office Coverage
Project Specific Profession31 Li:!bility Insur:!nce
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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(Exclude one of the above).
written for not less than $5,000,000 per claim and in the aggregate with a deductible not to exceed
$25,000. The Professional Liability Insurance shall include prior acts coverage sufficient to cover all
services rendered by the Architect/Engineer. This coverage shall be continued in effect for two year(s)
after the Date of Substantial Completion.
11.4 OWNER'S LIABILITY INSURANCE The Owner shall be responsible for obtaining and maintaining its
own liability insurance. Insurance for claims arising out of the performance of this Agreement may be
purchased and maintained at the Owner's discretion. The Owner shall provide the Design-Builder with a
certificate of insurance at the request of the Design-Builder.
11.5 INSURANCE TO PROTECT PROJECT
11.5.1 The Ownor Design-Builder shall obtain and maintain All Risk Builders Risk insurance-ffi-a-
form 3ccopt3blo te--tho Dosign Buildor.!.. upon the entire Project for the full cost of replacement at the
time of any loss. This insurance shall include as n3mod insured!:: tho O...mor, the Docign Buildor, tho
Architoct/Enginoor, Subcontr3ctorc, M3tori31 Suppliers 3nd Subsubcontr3ctorc additionally insureds
the Owner and the Architect/Engineer. This insurance shall include all risk insurance for physical
loss or damage including without duplication of coverage at least: theft, vandalism, malicious
mischief, transit, materials stored off site, collapse, falsework, temporary buildings, debris removal,
flood, earthquake, testing, and damage resulting from defective design, workmanship or material.
The Owner shall increase limits of coverage, if necessary, to reflect estimated replacement cost.
The insurance policy shall be written without a co-insurance clause. The Owner shall be solely
responsible for any deductible amounts.
11.5.2 If the Owner occupies or uses a portion of the Project prior to its Substantial Completion,
such occupancy or use shall not commence prior to a time mutually agreed to by the Owner and the
Design-Builder. Permission for partial occupancy from the insurance company shall be included as
standard in the property insurance policy, to ensure that this insurance shall not be canceled or
lapsed on account of partial occupancy. Consent of the Design-Builder to such early occupancy or
use shall not be unreasonably withheld.
11.5.3 The Owner shall obtain and maintain boiler and machinery insurance as necessary. The
interests of the Owner, the Design-Builder, the Architect/Engineer, Subcontractors, Material
Suppliers and Subsubcontractors shall be protected under this coverage.
11.5.4 The Owner shall purchase and maintain insurance to protect the Owner, the Design-Builder,
the Architect/Engineer, Subcontractors, Material Suppliers and Subsubcontractors against loss of
use of the Owner's property due to those perils insured pursuant to Paragraph 11.5. Such policy will
provide coverage for expediting expenses of materials, continuing overhead of the Owner and the
Design-Builder, the Architect/Engineer, Subcontractors, Material Suppliers and Subsubcontractors,
necessary labor expense including overtime, loss of income by the Owner and other determined
exposures. Exposures of the Owner, the Design-Builder, the Architect/Engineer, Subcontractors and
Subsubcontractors, shall be determined by mutual agreement with separate limits of coverage fixed
for each item.
11.5.5 The Owner shall provide the Design-Builder with a copy of all property insurance policies
before an exposure to loss may occur. Copies of any subsequent endorsements shall be furnished
to the Design-Builder. The Design-Builder shall be given thirty (30) days notice of cancellation,
non-renewal, or any endorsements restricting or reducing coverage. The Owner shall give written
notice to the Design-Builder before commencement of the Work if the Owner will not be obtaining
property insurance. In that case, the Design-Builder may obtain insurance in order to protect its
interest in the Work as well as the interest of the Architect/Engineer, Subcontractors, Material
Suppliers and Subsubcontractors in the Work. The cost of this insurance shall be a Cost of the
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DocuBuilder™ . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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Work pursuant to Article 8, and the GMP shall be increased by Change Order. If the Design-Builder
is damaged by the failure of the Owner to purchase or maintain property insurance or to so notify the
Design-Builder, the Owner shall bear all reasonable costs incurred by the Design-Builder arising
from the damage.
11.5.6 The Owner shall have the right to self-insure against the risks covered in Subparagraphs
11.5.1 and 11.5.4 upon providing evidence satisfactory to the Design-Builder of the ability to so
self-insure.
11.6 PROPERTY INSURANCE LOSS ADJUSTMENT
11.6.1 Any insured loss shall be adjusted with the Owner and the Design-Builder and made payable
to the Owner and Design-Builder as trustees for the insureds, as their interests may appear, subject
to any applicable mortgagee clause.
11.6.2 Upon the occurrence of an insured loss, monies received will be deposited in a separate
account and the trustees shall make distribution in accordance with the agreement of the parties in
interest, or in the absence of such agreement, in accordance with a dispute resolution award
pursuant to Article 13. If the trustees are unable to agree between themselves on the settlement of
the loss, such dispute shall also be submitted for resolution pursuant to Article 13.
11.7 WAIVER OF SUBROGATION
11.7.1 The Owner and the Design-Builder waive all rights against each other, the
Architect/Engineer, and any of their respective employees, agents, consultants, Subcontractors,
Material Suppliers and Subsubcontractors for damages covered by the insurance provided pursuant
to Paragraph 11.5 to the extent they are covered by that insurance, except such rights as they may
have to the proceeds of such insurance held by the Owner and the Design-Builder as trustees. The
Design-Builder shall require similar waivers from the Architect/Engineer and all Subcontractors, and
shall require each of them to include similar waivers in their subsubcontracts and consulting
agreements.
11.7.2 The Owner waives subrogation against the Design-Builder, the Architect/Engineer,
Subcontractors, Material Suppliers and Subsubcontractors on all property and consequential loss
policies carried by the Owner on adjacent properties and under property and consequential loss
policies purchased for the Project after its completion.
11.7.3 The policies shall also be endorsed to state that the carrier waives any right of subrogation
against the Design-Builder, the Architect/Engineer, Subcontractors, Material Suppliers, or
Subsubcontractors.
11.8 MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES The Owner and the Design-Builder agree to
waive all claims against the other for all consequential damages that may arise out of or relate to this
Agreement. The Owner agrees to waive damages including but not limited to the Owner's loss of use of
the Property, all rental expenses incurred, loss of services of employees, or loss of reputation. The
Design-Builder agrees to waive damages including but not limited to the loss of business, loss of
financing, principal office overhead and profits, loss of profits not related to this Project, or loss of
reputation. This paragraph shall not be construed to preclude contractual provisions for liquidated
damages when such provisions relate to direct damages only. The provisions of this paragraph shall
govern the termination of this Agreement and shall survive such termination.
11.9 BONDING
11.9.1 Performance and Payment Bonds
afe
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors.of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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are not
(Exclude one of the above).
required of the Design-Builder. Such bonds shall be issued by a surety licensed in the state of the
location of the Project and must be acceptable to the Owner.
11.9.2 Such Perform::lnce Bond sh::I1I be iscuod in the pen::I1 cum equ31 to one hundred percent
(100%) of t:Ae
GMP (If there is no GMP, then tho 3greed estim::Ited cost of the Project, including design and
construction).
3greod ostim::Ited construction coct of tho Project.
(Exclude one of the 3bove).
Such Porform::mco Bond sh311 cover the cost to complete the Work, but chall not cover 3ny
d::Im3gec of tho type specified to be covered by the incur3nco purcuo.nt to P3r::Igraph 11.2 ::Ind
P3r::Igr3ph 11.3, whether or not cuch incur::Inco is provided or is in ::In 3mount sufficient to GeVef-
such d3m::Iges.
11.9.3 The pen::I1 sum of tho Payment Bond ch::I1I equ::I1 the pen31 sum of the Porform3nce Bond.
ARTICLE 12
SUSPENSION AND TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT
TO PERFORM DESIGN-BUilDER'S RESPONSIBILITIES
12.1 SUSPENSION BY THE OWNER FOR CONVENIENCE
12.1.1 The Owner may order the Design-Builder in writing to suspend, delay or interrupt all or any
part of the Work without cause for such period of time as the Owner may determine to be
appropriate for its convenience.
12.1.2 Adjustments caused by suspension, delay or interruption shall be made for increases in the
GMP, compensation for Design Phase Services, the Design-Builder's Fee and/or the Date of
. Substantial Completion and/or the Date of Final Completion. No adjustment shall be made if the
Design-Builder is or otherwise would have been responsible for the suspension, delay or interruption
of the Work, or if another provision of this Agreement is applied to render an equitable adjustment.
12.2 OWNER'S RIGHT TO PERFORM DESIGN-BUILDER'S OBLIGATIONS AND TERMINATION BY
THE OWNER FOR CAUSE
12.2.1 If the Design-Builder persistently fails to perform any of its obligations under this Agreement,
the Owner may, after five (5) days' written notice, during which period the Design-Builder fails to
perform such obligation, undertake to perform such obligations. The GMP shall be reduced by the
cost to the Owner of performing such obligations.
12.2.2 Upon an additional five (5) days' written notice to the Design-Builder and the Design-Builder's
surety, if any, the Owner may terminate this Agreement for any of the following reasons:
.1 if the Design-Builder persistently utilizes improper materials and/or inadequately skilled
workers;
.2 if the Design-Builder does not make proper payment to laborers, Material Suppliers or
Subcontractors, provided that the Owner is making payments to the Design-Builder in
accordance with the terms of this Agreement;
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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.3 if the Design-Builder persistently fails to abide by the orders, regulations, rules, ordinances
or laws of governmental authorities having jurisdiction; or
.4 if the Design-Builder otherwise materially breaches this Agreement.
If the Design-Builder fails to cure or commence and continue to cure within the five (5) days,
the Owner, without prejudice to any other right or remedy, may take possession of the
Worksite and complete the Work utilizing any reasonable means. In this event, the
Design-Builder shall not have a right to further payment until the Work is completed.
12.2.3 If the Design-Builder files a petition under the Bankruptcy Code, this Agreement shall
terminate if the Design-Builder or the Design-Builder's trustee rejects the Agreement or, if there has
been a default, the Design-Builder is unable to give adequate assurance that the Design-Builder will
perform as required by this Agreement or otherwise is unable to comply with the requirements for
assuming this Agreement under the applicable provisions of the Bankruptcy Code.
12.2.4 In the event the Owner exercises its rights under Subparagraph 12.2.1 or 12.2.2, upon the
request of the Design-Builder the Owner shall provide a detailed accounting of the cost incurred by
the Owner.
12.3 TERMINATION BY OWNER WITHOUT CAUSE If the Owner terminates this Agreement other than
as set forth in Paragraph 12.2, the Owner shall pay the Design-Builder for all Work executed and for all
proven loss, cost or expense in connection with the Work, plus all demobilization costs. In addition, the
Design-Builder shall be paid an amount calculated as set forth below:
.1 If the Owner terminates this Agreement prior to commencement of the Construction Phase, the
Design-Builder shall be paid for the Design-Builder's Design Phase services provided to date as set
forth in Subparagraph 7.1.2 and 7.1.3, and a premium as set forth below:
(Insert here the amount agreed to by the parties) Plus a fee of four percent (4%) of the total
estimated project budget or GMP, whichever is the greater.
.2 If the Owner terminates this Agreement after commencement of the Construction Phase, the
Design-Builder shall be paid for the Construction Phase Services provided to date pursuant to
Subparagraph 7.2.1 and a premium as set forth below:
(Insert here the amount agreed to by the parties) Plus a fee of eight percent (8%) for the entire
GMP, as amended at the time of termination.
.3 The Owner shall also pay to the Design-Builder fair compensation, either by purchase or rental at
the election of the Owner, for all equipment retained. The Owner shall assume and become liable for
obligations, commitments and unsettled claims that the Design-Builder has previously undertaken or
incurred in good faith in connection with the Work or as a result of the termination of this Agreement.
As a condition of receiving the payments provided under this Article 12, the Design-Builder shall
cooperate with the Owner by taking all steps necessary to accomplish the legal assignment of the
Design-Builder's rights and benefits to the Owner, including the execution and delivery of required
papers.
12.4 TERMINATION BY THE DESIGN-BUILDER
12.4.1 Upon five (5) days' written notice to the Owner, the Design-Builder may terminate this
Agreement for any of the following reasons:
.1 if the Work has been stopped for a sixty (60) day period
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DocuBuilder™ . AGC DOCUMENT NO. 410 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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a. under court order or order of other governmental authorities having jurisdiction; or
b. as a result of the declaration of a national emergency or other governmental act
during which, through no act or fault of the Design-Builder, materials are not available;
.2 if the Work is suspended by the Owner for sixty (60) consecutive days;
.3 if the Owner fails to furnish reasonable evidence that sufficient funds are available and
committed for the entire cost of the Project in accordance with Subparagraph 4.1.3 of this
Agreement.
12.4.2 If the Owner has for thirty (30) days failed to pay the Design-Builder pursuant to
Subparagraph 10.1.2, the Design-Builder may give written notice of its intent to terminate this
Agreement. If the Design-Builder does not receive payment within five (5) days of giving written
notice to the Owner, then upon five (5) days' additional written notice to the Owner, the
Design-Builder may tenminate this Agreement.
12.4.3 Upon termination by the Design-Builder in accordance with this Subparagraph, the
Design-Builder shall be entitled to recover from the Owner payment for all Work executed and for all
proven loss, cost or expense in connection with the Work, plus all demobilization costs and
reasonable damages. In addition, the Design-Builder shall be paid an amount calculated as set forth
either in Subparagraph 12.3.1 or 12.3.2, depending on when the termination occurs, and
Subparagraph 12.3.3.
ARTICLE 13
DISPUTE RESOLUTION
13.1 WORK CONTINUANCE AND PAYMENT. Unless otherwise agreed in writing, the Design-Builder
shall continue the Work and maintain the approved schedules during all dispute resolution proceedings. If
the Design-Builder continues to perform, the Owner shall continue to make payments in accordance with
the Agreement.
13.2 INITL^,L DISPUTE RESOLUTION. If D dispute Drices out of or rebtec to this Agreement or its
breoch, tho porties shDII endeDvor to settlo tho dispute first through direct discussions. If the dicpute
cannot be cettlod through diroct discussions, the pDrtiec shall endeDvor to cottle the dispute by modi3tion
undor tho Construction Industry Modi3tion Rules of the !\mericDn .^.rbitr::ltion /\scocbtion before recourse
te-the disputo resolution procedures contDined in this Agreement. The loc::ltion of the mediotion sh::lll be
tho locotion of tho Project. Once one pDrty files :::l roquect for medi3tion with the other contracting p::lrty
::lnd with the .^,morican Arbitration AssociDtion, the p:::lrties Dgree to conclude such mediation 'Nithin sixty
(60) dDYs of filing of the request. Either p:::lrty may terminDte the modiDtion 3t ony time Dfter tho first
session, but the decision to terminDte must be delivered in person by the pDrty's representDtivo to the
other p:::lrty's represontDtivo :::lnd the mediDtor. See Exhibit # 5.
13.3 EXHIBIT NO.1. If tho dispute connot bo sottlod by mediation within sixty (60) doys, the p:::lrtios shall
cubmit the dicputo to :::lny dispute rocolution process set forth in Exhibit NO.1 to this ,^.greoment.
13.4 MULTIPARTY PROCEEDING. The parties agree that all parties necessary to resolve a claim shall
be parties to the same dispute resolution proceeding. Appropriate provisions shall be included in all other
contracts relating to the Work to provide for the consolidation of such dispute resolution proceedings.
13.5 COST OF DISPUTE RESOLUTION. The prevailing party in any dispute arising out of or relating to
this Agreement or its breach that is resolved by the dispute resolution process set forth in Exhibit No. -t 2-
to this Agreement shall be entitled to recover from the other party those reasonable attorneys' fees, costs
and expenses incurred by the prevailing party in connection with such dispute resolution process after
direct discussions and mediation.
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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13.6 LIEN RIGHTS. Nothing in this Article shall limit any rights or remedies not expressly waived by the
Design-Builder which the Design-Builder may have under lien laws.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 ASSIGNMENT Neither the Owner nor the Design-Builder shall assign its interest in this Agreement
without the written consent of the other except as to the assignment of proceeds. The terms and
conditions of this Agreement shall be binding upon both parties, their partners, successors, assigns and
legal representatives. Neither party to this Agreement shall assign the Agreement as a whole without
written consent of the other except that the Owner may assign the Agreement to a wholly-owned
subsidiary of the Owner when the Owner has fully indemnified the Design-Builder or to an institutional
lender providing construction financing for the Project as long as the assignment is no less favorable to
the Design-Builder than this Agreement. In the event of such assignment, the Design-Builder shall
execute all consents reasonably required. In such event, the wholly-owned subsidiary or lender shall
assume the Owner's rights and obligations under the Contract Documents. If either party attempts to
make such an assignment, that party shall nevertheless remain legally responsible for all obligations
under the Agreement, unless otherwise agreed by the other party.
14.2 GOVERNING LAW This Agreement shall be governed by the law in effect at the location of the
Project.
14.3 SEVERABILITY The partial or complete invalidity of anyone or more provisions of this Agreement
shall not affect the validity or continuing force and effect of any other provision.
14.4 NO WAIVER OF PERFORMANCE The failure of either party to insist, in anyone or more
instances, on the performance of any of the terms, covenants, or conditions of this Agreement, or to
exercise any of its rights, shall not be construed as a waiver or relinquishment of such term, covenant,
condition or right with respect to further performance.
14.5 TITLES AND GROUPINGS The titles given to the articles of this Agreement are for ease of
reference only and shall not be relied upon or cited for any other purpose. The grouping of the articles in
this Agreement and of the Owner's specifications under the various headings is solely for the purpose of
convenient organization and in no event shall the grouping of provisions, the use of paragraphs or the use
of headings be construed to limit or alter the meaning of any provisions.
14.6 JOINT DRAFTING The parties to this Agreement expressly agree that this Agreement was jointly
drafted, and that both had opportunity to negotiate its terms and to obtain the assistance of counsel in
reviewing its terms prior to execution. Therefore, this Agreement shall be construed neither against nor in
favor of either party, but shall be construed in a neutral manner.
14.7 RIGHTS AND REMEDIES The parties rights, liabilities, responsibilities and remedies with respect
to this Agreement, whether in contract, tort, negligence or otherwise, shall be exclusively those expressly
set forth in this Agreement.
14.8 OTHER PROVISIONS
14.8.1 Shared Savings
If the cost of work plus the Design-Builder's fee is less than the GMP including all approved change
orders, the shared savings will be split fifty (50%) to the owner and fifty (50%) to the Design-Builder.
ARTICLE 15
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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EXISTING CONTRACT DOCUMENTS
The Contract Documents in existence at the time of execution of this Agreement are as follows:
IEf ~d&.- L {
PRINT TITLE: Ww.u-L L Is. GJL s.~
I
DATE OF SIGNATURES: '/0/ K:;?/O 2
~:~:::~~:~~-If~!/?!l~
PRINT NAME: i
PRINT TITLE: Executive Vice President
DATE OF SIGNATURE:
L'~-25 -c, 2--
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DocuBuilder™ . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
e
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EXHIBIT 2
OTHER CONSIDERATIONS AND SERVICES
The Design-Builder shall be reimbursed by the Owner for additional costs incurred due to labor
disputes. The Owner and Design-Builder agree that the term "Labor Dispute", as used
throughout the Contract Documents, does not include picketing by a labor organization or entity
which represents employees of the Design-Builder. These additional costs shall include but not
be limited to: attorney's fees, security, court costs, labor, material, equipment, etc., and any costs
associated with said delay, in obtaining and enforcing an injunction to gain access to the site for
the employees of Design-Builder and subcontractors. The Design-Builder shall be responsible to
coordinate and assist in the resolution of said occurrence. These additional costs are not a part of
the guaranteed price.
AGC DOCUMENT NO. 410
Exhibit 2
HORST CONSTRUCTION COMPANY
Lee & Tamra Woodall
August, 2002
4 I' ,,," l (
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EXHIBIT 3
DESIGN-BUILDER'S DESIGN-PHASE COMPENSATION
DESIGN PHASE SERVICES
I. Cost Control Procedures HOURS
A. Computerized Estimate and Revisions
1. Schematic Estimate 48
2. Guaranteed Maximum Price 74
B. Design Review
I. Structural & Design interference 8
2. Mechanical and Electrical interference 8
3. Constructibility Issues 69
a. Incompatible and inconsistent design elements
b. Prevent cost in-effective construction methods
c. Labor and material availability of components
d. Future maintenance concerns
e. Limit the number of unique elements in a design
f. Limit the number of trades required.
g. Review the safety requirements
h. Standardize components to extent possible
I. Review design tolerances
J. Site and equipment accessibility review
k. Regulatory agency compliance:
Safety, Building Codes, ADA, Permit Process
C. Architectural Services (Subcontract Agreement with Cornerstone Design)
D. Site Engineering Services
II.
Scheduling Procedures
A. Pre-Construction Schedule
4
III.
Client Meetings
32
Subtotal Hours........ ................................................... ...254
The Guaranteed Maximum Price for Design Phase Services Shall be Sixty Five Thousand Ei{!:htv Nine Dollars
($65,089.00).
The actual cost of this service shall consist of hours incurred by the Design-Builder's personnel as per the
attached rate structure (Exhibit "4"), plus cost of any materials and subcontract work for site investigations and
on-site testing as may be performed, plus other miscellaneous costs. To this total cost the Design-Builder's Fee
of eight percent (8%) will be applied.
AGC DOClIMENT NO. 410
Exhibit 3
HORST CONSTRUCTION COMPANY
Lee & Tamra Woodall
August 2002
... I' ," . f
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EXHIBIT 4
DESIGN-BUILDER'S
HOME OFFICE AND FIELD PERSONNEL HOURLY BILLING RATES
PERSONNEL
HOURLY RATE
Project Executive*
Sf. Project Manager*
Project Manager*
Estimator*
Scheduler*
General Superintendent*
Project Coordinator*
Field Superintendent*
Safety Manager
Project Foreman
Carpenter Foreman
Carpenter
Project Clerk
Laborer
$90.00/Hour
$80.001H0ur
$75.001H0ur
$65.001H0ur
$65.001H0ur
$65.001H0ur
$57.001H0ur
$50.001H0ur
$40.001H0ur
$45.001H0ur
$35.001H0ur
$33.00/Hour
$26.001H0ur
$24.001H0ur
Note: All hourly rates are exclusive of Design-Builder's Fee of (8%) and are based on a 40-hour
workweek at straight time normal work hours.
Rates do not include overtime. For overtime, multiply rates by 1.5. -\ny employee's time will be
considered overtime if one of the following criteria is met:
When work on all projects exceeds 40 hours per week. This project will be
charged overtime for any work over 8 hours per day or
Work on project exceeds 10 hours per day
Saturday work, if total work on all projects exceeds 40 hours per week
All Sunday work
* Time will be considered overtime on these employees only if hours exceed 40 hours on this specific
project.
Rates do not include second or third shift differential. To calculate a rate for second shift multiply
rates by 1.1. To calculate a rate for third shift multiply rates by 1.2.
Appropriate supervisor as determined by Design-Builder may be required for overtime and shift
work and the supervisor rates would be calculated as above.
All above hourly rates will increase 4% per year on October I.
Rates do not include Worker's Compensation.
AGC DOCUMENT NO. 410
Exhibit 4
HORST CONSTRUCTION COMPANY
Lee & Tamra Woodall
August, 2002
.'
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EXHIBIT 5
13.2 DISPUTE RESOLUTION
If a dispute arises out of or relates to this Agreement or its breach, the paIiies shall
endeavor to settle the dispute first through conciliation. If the dispute cannot be settled
through conciliation, the parties shall endeavor to settle the dispute arising from or related
to this agreement by mediation and if necessary, legally binding arbitration in accordance
with the Rule of Procedure for Christian Conciliation of the Institute for Christian
Conciliation, a division of Peacemaker Ministries (complex text of the Rules is available
a www.HisPeace.org). Judgment upon an arbitration decision may be entered in any
court otherwise having jurisdiction. The parties understand that these methods shall be
the sole remedy for any controversy or claim arising out of this agreement and expressly
waive their right to file a lawsuit in any civil court against one another for such disputes,
except to enforce an arbitration decision. The location of the mediation shall be the
location of the Project. Once one party files a request for mediation with the other
contracting pariy and with the Administrator, the parties agree to conclude such
mediation within sixty (60) days of filing of the request.
AGC DOClIMENT NO. 410
Exhibit 5
HORST CONSTRlICTION COMPANY
Lee & Tamra Woodall
August. 2002
THE ASSOeTED GENERAL CONTRACTOR. AMERICA
AMENDMENT NO.1 TO AGC DOCUMENT NO. 410
STANDARD FORM OF DESIGN-BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER
(Where the Basis of Payment is the Cost of the Work Plus a Fee with a
Guaranteed Maximum Price)
Pursuant to Paragraph 3.2 of the Agreement dated October 10, 2002 between the Owner, Lee Woodall
and the Design-Builder, Horst Construction Company for Woodall Car Wash (the Project), the Owner and
the Design-Builder desire to establish a Guaranteed Maximum Price (GMP) for the Work. Therefore, the
Owner and the Design-Builder agree as follows:
ARTICLE 1
GUARANTEED MAXIMUM PRICE
The Design-Builder's GMP for the Work, including the Cost of the Work as defined in Article 8 and the
Design-Builder's Fee as set forth in Paragraph 7.3, is Nine Hundred Seventy-Four Thousand Five Hundred
Eight Dollars ($ 974,508.00).
The GMP is for the performance of the Work in accordance with the documents listed below, which are
part of the Agreement.
APPENDIX A - Drawings and Specifications, including Addenda, if any, dated April 16, 2003, ~
pages.
APPEND IX ~ - Allowance Items, dated, April 16, 003, 1 pages.
APPENDIX C - Assumptions and Clarifications, dated April 16, 2003,1- pages.
APPENDIX Q. - Schedule of Work, dated August 7, 2003,1- pages.
APPENDIX ~ - Alternate Prices, dated April 16,2003,1- pages.
APPENDIX f - Unit Prices, dated April 16, 2003,1- pages.
APPENDIX G - Additional Services included, dated April 16, 2003,1- pages.
APPENDIX
, dated
pages.
ARTICLE 2
DATE OF SUBSTANTIAL COMPLETION
1
DocuBuijder@' AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
IWoodall Carwash
e
2120514
e
August, 2003l
The Date of Substantial Completion of the Work iSU.e~~ i)t 2/J/J?
ARTICLE 3
DATE OF FINAL COMPLETION
The Date of Final Completion of the Work is:lJ~~J$;2()J.? or within
( 99 ) days after the Date of Substantial Completion, subject to adjustments as
provided for in the Contract Documents.
This Amendment is entered into as of
V~utd'c-:""u~J'ul;L}{dG4- siP]
OWNER: ) ~
7 Z#c?3
.. ................ . I
PRINT NAM :
./
PRINT TITLE: A9~le /IJ-)
ATTEST~l.}u~~ iN D3
DESIGN-BUILDER~ . ./;I~~T ~.v r;T~tLC7i{:1:"
::,~;~~:'~cft'~ "-ur7/~3uuu
PRINT TITLE: ? xl:C. 1/; ..p.
2
DocuBuilder@. AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
-
e
APPENDIX "A"
Drawinqs & Specifications
April 16, 2003
1. Land Development Plan prepared by Hoover Engineering Services, Inc.
1 of 6 Cover Sheet Dated 4/18/03
2 of 6 Existing Features Plan Dated 4/18/03
3 of 6 Site and Utility Plan Dated 4/18/03
4 of 6 Grading and Drainage Plan Dated 4/18/03
5 of 6 Erosion and Sedimentation Plan Dated 4/18/03
6 of 6 Profiles and Misc. Details Dated 4/18/03
2. Architectural Drawings prepared by Cornerstone Design Architects
A 1.1 Floor Plan Dated 2/10/03
A2.1 Exterior Elevations Dated 2/10/03
A4.1 Building Section Dated 2/10/03
A4.2 Building Section Dated 2/10/03
AGC DOCUMENT NO. 410, Amendment 1
Exhibit A
HORST CONSTRUCTION COMPANY
Woodall Car Wash
April 2003
Page 1 of2
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APPENDIX "A"
DrawinQs & Specifications
April 16, 2003
Scope:
Project management
Project supervision
Architectural design
Site engineering
Building permits
Insurances
Temporary site construction
Final cleaning
Excavation, backfill, and grading
Pen dot Highway Occupancy Permit and improvements
Utilities: water, sewer, electric, and gas connections
Landscaping
Paving and line painting
Site sign
Concrete - building footings, slab on grade, and curbs & walks
Masonry - including Astra-glazed colored tile package
Metal fabrications
Carpentry - wood roof truss assembly, interior trims, interior casework, and misc.
carpentry
Insulation - attic
Shingle roofing and aluminum exterior trim
Caulking and sealants
Doors, frames, and hardware
FRP doors and frames in wash tunnel
Aluminum storefront entrances
Overhead coiling doors
Vinyl windows
Metal studs and drywall
Acoustical ceiling tiles - in corridor, toilets, reception, and office area
FRP wall and ceiling covering in wash tunnel
VCT flooring in corridor, toilets, reception, and office area
Painting
Toilet accessories
Canvas awning
Fire extinguishers and cabinets
Plumbing
H.V.A.C. - gas fired furnaces with air conditioning
Electrical- building and site
AGC DOCUMENT NO. 410, Amendment 1
Exhibit A
HORST CONSTRUCTION COMPANY
Woodall Car Wash
April 2003
Page 2 of 2
e
APPENDIX "B"
Allowances
April 16, 2003
1. Landscaping - Labor and material to prepare and
seed lawn area along with plantings up to................
2. Water service including tap-in and meter pit.. .. ..........
3. PA Highway Occupancy Permit and Improvements.....
AGC DOCUMENT NO. 410. Amendment 1
Exhibit B
e
$7,000.00
$6,400.00
$6,000.00
HORST CONSTRUCTION COMPANY
Woodall Car '''ash
April 2003
Page 1 of 1
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APPENDIX "C"
Assumptions & Clarifications
April 16, 2003
1. We do not include supplying or installation of the carwash equipment.
2. We do not include the tap-in or the EDU costs for sanitary sewer.
3. We include the additional cost for the Astra-Glazed tile package for the
exterior.
4. Signage: We included one (1) double-sided HED 1-70 custom radius top,
illuminated sign as supplied by Fastsigns, and signage for the handicap
restroom. We do not include any other site signs or menu boards.
5. We do not include rock removal. Should rock be encountered, it will be
handled as a Contract Change Order.
AGC DOCUMENT NO. 410, Amendment 1
Exhibit C
HORST CONSTRUCTION COMPANY
Woodall Car Wash
April 2003
Page 1 of 1
e
APPENDIX "0"
Schedule of Work
August 7,2003
1. Preliminary Construction schedule dated 8/7/03.
AGC DOCUMENT NO. 410, Amendment 1
Exhibit D
e
HORST CONSTRUCTION COMPANY
Woodall Car Wash
August 2003
Page 1 of 1
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APPENDIX "E"
Alternate Prices
April 16, 2003
There were no alternate prices established at the time of the GMP.
AGC DOCUMENT NO. 410, Amendment 1
Exhibit E
HORST CONSTRUCTION COMPANY
Woodall Car Wash
April 2003
Page 1 of 1
e
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APPENDIX "F"
Unit Prices
April 16, 2003
Rock- Mechanical Bulk and Trench................. ..$180.00 per cubic yard
Blasted Bulk................................................ $18.00 per cubic yard
Blasted trench............................................. ..$48.00 per cubic yard
AGC DOCUMENT NO. 410, Amendment 1
Exhibit F
HORST CONSTRlICTlON COMPANY
Woodall Car Wash
April 2003
Page I of 1
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APPENDIX "G"
Additional Services
There were no additional services established at the time of the GMP.
AGC DOCUMENT NO. 410, Amendment 1
Exhibit G
HORST CONSTRlJCTlON COMPANY
Woodall Car Wash
April 2003
Page] of 1
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HARMON & DAVIES, P.C.
ATfORNEYS-AT-U\W
2306 COLUMBIA AVENUE
LANCASTER, PA 17603
tit
..
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
No. 05-5016
Plaintiff
Civil Term
vs.
LEE WOODALL
Defendant
PRAECIPE TO REINSTATE COMPLAINT
TO THE PROTHONOTARY:
Kindly reinstate the attached Complaint in the above captioned matter. The
original Complaint was filed the with Court on September 23, 2005.
Respectfully submitted,
HARMON & DAVIES, P.C.
2306 Columbia Avenue
Lancaster, Pa 17603
(717) 291-2236
Dated:~ ;') I ?--C~
By: -1L~-- 1\. th-1~
Thomas R. Davies, P A ill #35260
Attorneys for Plaintiff
Horst Construction Company
r5C-'
~~/
CIDocuITlents and Settings\Comp~ Owner\My Documents\Clientsll1or.t Construclion\Woodall Car WashlPraecipe to Reinstate Complaint wpd
HARMON & DAVIES. P.C
ATfORNEYS-.n.LAW
23D6 COLUMBIA A VEt-ruE
LANCASTER, PA 17(,11:;
4t
,
&~;EC:
,.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
[if ,{702-l
No. 65" - .~()/.b
Plaintiff
vs.
LEE WOODALL
Defendant
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in
the following pages, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the court your defense or objections to the claims set forth against you. You
are warned that if you fail to do so the case may proceed without you and a judgment may
be entered against you by the court without further notice for any money claimed in the
Complaint or for any other claim or relief requested by the Plaintiff. You may lose money
or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FO);gH
BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION Am:lUf!5, ~
HIRING A LAWYER. . c;'" :;:J
M -'-"71
u n1F
NW ~"i8
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Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013-3302
Telephone: 717-249-3166
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Dated: q, 2..0) 05
I
HARMON & DAVIES, P.c.
2306 Columbia Avenue
Lancaster, Pa 17603
(717) 29}j236
By: ~VLM_ R 1ft./li'-U..4- @,/
Thomas R. Davies, PA!D #35260
Attorneys for Plaintiff
Horst Construction Company
HARMON & DAVIES, r.c.
ATIOR.'lEYS-AT-LAW
2.306 COLUMBlA ,\ VENUE
LA.NCASTER, PA 17603
~
,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
320 Granite Run Drive
P,O, Box 3330
Lancaster, P A 17604
No,
Plaintiff
vs,
LEE WOODALL
21 West Mulberry Hill Drive
Carlisle,PA 17013
Defendant
COMPLAINT
Plaintiff, Horst Construction Company d/b/a Horst Construction ("Horst"), by and
through its undersigned attorneys, Harmon & Davies, P .C" hereby files this Complaint
against Defendant, Lee Woodall, and in support thereof avers as follows:
I. Plaintiff, Horst Construction Company d/b/a Horst Construction ("Horst"),
is a Pennsylvania business corporation with an address of 320 Granite Run Drive, P,O. Box
3330, Lancaster, Pennsylvania 17604,
2, On information and belief, Defendant, Lee Woodall, is a resident of 21
West Mulberry Hill Drive, Carlisle, PA 17013,
3. On or about October 10,2002, Horst, as design-builder, entered into a
written contract agreement (the "Contract"), with Lee Woodall, as "Owner," under which
HARMON & DA VlES, P,C
ATIORNEYS-AT-LAW
2306 COLUMBIA AVENUE
LANCASTER. Pi\. 176113
,
,
Horst was to furnish labor, materials and equipment necessary for the design and
construction of Owner's project, for a total cost of $65,089,00 (the "Contract Price"). A
true and correct copy of the Contract is attached hereto as Exhibit "A,"
4, On or about October 28,2002, Lee Woodall changed the scope ofwark
contracted for at an increased cost of$54,193,00, As a result of the change order, the
revised Contract Price was $119,282,00.
COUNT I - BREACH OF CONTRACT
5, Under the terms of the Contract, Lee Woodall agreed to pay all amounts due
and owing to Horst Construction for labor, materials and equipment necessary for the
design and construction of Owner's project.
6, Despite Horst Construction's fulfillment of all its obligations under the
Contract in a timely, workmanlike, and professional manner, Lee Woodall has refused to
remit payment of the Contract balance plus agreed upon interest in the amount of
$119,282.00. True and correct copies of unpaid invoices are attached hereto as Exhibit
""B."
7, Lee Woodall's failure to pay Horst Construction is a material breach of its
obligations under the Contract.
WHEREFORE, Plaintiff Horst Construction Company respectfully requests that
this Honorable Court enter judgment in its favor, and against Defendant Lee Woodall in
excess of $ 119,282,00, plus interest, cost of suit, and any further relief which the Court
deems just and proper.
2
HAJL\10N & DAVIES, PC
ATfORNEYS-AT-LAW
2~n(l COLUMBiA A VENUE
LANCASTER, PA 17603
,
,
COUNT 11- UNJUST ENRICHMENT QUANTUM MERIT
8. Horst Construction Company incorporates by reference Paragraphs 1
through 7 of this Complaint as if fully set forth herein,
9, Horst Construction Company supplied labor, equipment and material to Lee
Woodall on the project for Lee Woodall's benefit, fully expecting compensation from Lee
Woodall for its work on the project.
10, All ofthe work discussed above was performed at the direction of Lee
Woodall.
11. Lee Woodall accepted and retained the benefit conferred upon him by Horst
Construction Company,
12, Lee Woodall did not compensate Horst Construction for the work it has
performed on the project. Lee Woodall has been unjustly enriched by Horst Construction's
work.
13, Lee Woodall's retention of the benefit oflabor and materials supplied by
Horst Construction without fully compensating Horst Construction would result in an
inequity,
14. Despite Horst Construction's fulfillment of all of its obligations under the
Contract in a timely, workmanlike, and professional manner, Lee Woodall has refi.lsed to
remit payment of the Contract balance in the amount of $119,282,00, which represents the
fair value of the work performed,
3
,
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WHEREFORE, Plaintiff Horst Construction Company respectfully requests that
this Honorable Court enter judgment in its favor, and against Defendant Lee Woodall in
the amount of$119,282.00 plus interest, cost of suit, and any further relief which the Court
deems just and proper.
COUNT 1II- BREACH OF PENNSYL VANIA CONTR4.CTOR AND
SUBCONTRACTOR PAYMENT ACT
15. Horst Construction Company incorporates by reference Paragraphs I
through 14 of this Complaint as iffully set forth herein.
16. Horst Construction Company has fulfilled all conditions precedent to its
entitlement to payment, as stated above, on the proj eel.
17. Pursuant to Title 73 Pa.C.S.A. Chapter 14(a), S 5D6, el.seq. entitled
Contractor and Subcontractor Payment Act (the "Act"), Horst Construction is entitled to
recover interest at a rate of one percent (l %) per month and penalties at the rate of one
percent (l 'Yo) per month on all Contract funds being unlawfully withheld by Lee Woodall.
18. The Act provides that an owner shall pay the contractor strictly in
accordance with terms of the construction contract.
19. Lee Woodall's refusal to pay Horst Construction for the labor, material and
equipment for use in design and construction of Owner's project violates the terms of the
Act entitling Horst Construction to interest, penalties, and attorney's fees.
20. Pursuant to the Act, Horst Construction is entitled to recover its reasonable
attorney's fees incurred in the institution and maintenance ofthis suit.
HARMON & DAVIES, Pc.
ATIORNEYS.AT.LAW
2]1)6 COLUMIlLA A VENUE
LANCASTER, PA 176UJ
4
HARMON & DAVIES, PC
ATTORNEYS.AT-LAW
2.:106 COLUtl-fBL.;, A VENUE
LA.."JCASTER, PA 17MB
,
,
WHEREFORE, Plaintiff Horst Construction Company respectfully requests that
this Honorable Court enter judgment in its favor, and against Defendant Lee Woodall
damages in the amount of $119,282.00 plus interest, cost of suit, and any further relief
which the Court deems just and proper.
Respectfully submitted,
Dated:
qJ 2-(}Job'
HARMON & DAVIES, P.c.
2306 Columbia A venue
Lancaster, Pa 17603
(717) 291-2236
By: .jJ~ e. l1V'/~4-- 't
Thomas R. Davies, PA ID #35260
Attorneys for Plaintiff
Horst Construction Company
CCBC.\DClcurn~"\5 \\00 S\'.tt\"g~\Ol>ll\u\M.y Doc\l\nems\Clil;llts\H.or,1 Consl1uClJon Co\Wol1dall Carwa~h 0404\Complaintwpd
5
HARMON & DAVIES, P.e.
AITORNEYS-AT-LAW
DIJ6 COLUMBIA A VE1'<l}E
LA~CAS1ER,PA 17603
,
,
VERIFICATION
I, Darryl L. Hurst, verify that I am the Vice-President of Horst Construction
Company and that as such, I am authorized to make this Verification; that the information
set forth in the foregoing Complaint is true and correct to the best of my knowledge,
information and belief. I understand that any false statements contained herein are subject
to the penalties of 18 Pa. C.S. 54904, relating to unsworn falsification to authorities.
Date: 9- 1- O~
~t/~~
DARR L. Hl! RST
6
Exhibit A
,
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THE ASS.\TED GENERAL CONTRACT.)F AMERICA
.000ouw,
SKI L L
INTEGRITY
AGC DOCUMENT NO. 410
STANDARD FORM OF DESIGN-BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER
(Where the Basis of Payment is the Cost of the Work Plus a Fee with a
I Guaranteed Maximum Price)
This standard form agreement was developed with the advice and cooperation of the AGC Private Induslry
Advisory Council, a number of Fortune 500 Owners' design and construction managers who have been
meeting with AGC contractors 10 discuss issues of mutual concern. AGC gratefully acknowledges the
contributions of these owners' staff who participated in this effort 10 produce a basic agreement for
construclion.
TABLE OF ARTICLES
1. AGREEMENT
2. GENERAL PROVISIONS
3. DESIGN-BUILDER'S RESPONSIBILITIES
4 OWNER'S RESPONSIBILITIES
5. SUBCONTRACTS
6. TIME
7. COMPENSATION
8. COST OF THE WORK
9. CHANGES IN THE WORK
10. PAYMENT FOR CONSTRUCTION PHASE SERVICES
11. INDEMNITY, INSURANCE, BONDS, AND WAIVER OF SUBROGATION
12 SUSPENSION AND TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM
DESIGN-BUILDER'S RESPONSIBILITIES
13. DISPUTE RESOLUTION
14. MISCELLANEOUS PROVISIONS
1
DocuBuiider" . AGC DOCUMENT NO. 410 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plu-s a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software.
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Augus[, 20021
, :WOOdall Carwash
15. EXISTING CONTRACT DOCUMENTS
AMENDMENT NO.1
This Agreement has important legal and insurance consequences. Consultation with an attorney and an
insurance adviser is encouraged with respect to its completion or modification
ARTICLE 1
AGREEMENT
I"~ O<:nb'lC
This Agreement is made this~"f'd day of A"'>J....t in the year 2002, by and between the
OWNER
(Name and Address)
Lee ,:r
_ Woodall
J\l\ kAJ
21 West Mulberry Hill Road
Carlisle, PA 17013-8410
and the
DESIGN-BUILDER
(Name and Address)
Horst Construction Company
320 Granite Run Drive
Lancaster, PA 17601
for services in connection with the following PROJECT
(Name, location and brief description) ~ \ A, \
lY).c.c,n"""<..~ bvf') ~V
Woodall Carwash, C_ 1_ Pennsylvania
Notice to the parties shall be given at the above addresses.
ARTICLE 2
GENERAL PROVISIONS
2.1 TEAM RELATIONSHIP The Owner and the Design-Builder agree to proceed with the Project on the
basis of trust, good faith and fair dealing and shall take all actions reasonably necessary \0 perform this
Agreement in an economical and timely manner, including consideration of design modifications and
alternative materials or equipment that will permit the Work to be constructed within the Guaranteed
Maximum Price (GMP) and by the Dates of Substantial Completion and Final Completion if they are
established by Amendment NO.1. The Design-Builder agrees to procure or furnish, as permitted by the
law of the State in which the Prolect is located, the design phase services and construction phase
services as set forth below.
2.1.1 The Design-Builder represents that it is an independent contractor and that it is familiar with
the type of work it is undertaking.
2.1.2 Neither the Design-Builder nor any of Its agents or employees shall act on behalf of or in the
2
OocuBullder'"' AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DES~GN-BUILDER (Where the Basis of Paymentis the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @1999, The Associated Gen'eral Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to '3ubscribers of the AGe DocuBu\lder Contract Document Software.
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name of the Owner unless authDrized in writing by the Owner's Representative.
2.2 ARCHITECT/ENGINEER Architectural and engineering services shall be procured from licensed,
independent design professiDnals retained by the Design-Builder or furnished by licensed employees of
the Design-Builder, Dr as permitted by the law of the State in which the Project is located. The standard of
care for architectural and engineering services pertormed under this Agreement shall be the care and skill
ordinarily used by members of the architectural and engineering professions practicing under similar
conditions at the same time and IDcality. The person Dr entity providing architectural and engineering
services shall be referred to as the ArchitecUEngineer. If the Architect/Engineer is an independent design
professional, the architectural and engineering services shall be procured pursuant tD a separate
agreement between the Design-Builder and the Architect/Engineer. The Architect/Engineer fDr the Project
is Cornerstone Design Architects, Ltd..
2.3 EXTENT OF AGREEMENT This Agreement is solely for the benefit of the parties, represents the
entire and integrated agreement be\v.ieen the parties, and supersedes all prior negotiations,
representations Dr agreements, either written or oral. The Owner and the Design-Builder agree to look
solely to each other with respect to the pertormance of the Agreement. The Agreement and each and
every provision is for the exclusive benefit of the Owner and the Design-Builder and not for the benefit of
any third party nor any third party beneficiary, except to the extent expressly provided in the Agreement.
2.4 DEFINITIONS
.1 The Contract Documents consist of:
a. Change Orders and written amendments to this Agreement including exhibits and
appendices, signed by bDth the Owner and the Design-Builder, including Amendment NO.1 if
executed;
b. this Agreement except lor the existing Contract Documents set forth in item e. below;
c. the most current documents approved by the Owner pursuant to Subparagraph 3.1.4, 3.1.6
or 3.1. 7 ;
d. the infDrmation provided by the Owner pursuant to Clause 4.1.2.1;
e. the Contract Documents in existence at the time of execution of this Agreement which are
set forth in Article 15;
f the Owner's Program provided pursuant to Subparagraph 4.1.1;
In case of any inconsistency, conflict or ambiguity among the Contract Documents, the
documents shall govern in the order in which they are listed above.
.2 The term day shall mean calendar day, unless otherwise specifically defined.
.3 Design-Builder's Fee means the compensation paid to the Design-Builder for salarres and other
mandatory or customary compensation of the Design-Builder's employees at its principal and branch
offices except employees listed in Subparagraph 8.2.2, general and administrative expenses of the
Design-Builder's principal and branch offices other than the field office, and the Design-Builder's
capital expenses, including interest on the Deslgn-Builder's capital employed for the Work, and
profit.
4 Defective Work is any portion of the Work not in conformance with the Contract Documents as
more fully descrrbed in Paragraph 3.B.
.5 The term Fast-track means accelerated scheduling which involves commencing construction
prior \0 the completion of drawings and specifications and then using means such as bid packages
and efficient coordination to compress the overall schedule
3
DocuBuilder,M. AGe DOCUMENTNO. 410' STANDARD FORMOF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OINNER AND DESIGN-8UILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed fviaximum
Price) @ 1999, The Associated Gener31 Contractors af America. All rights reserved. This document was produced electronically under the
grant of license pro\llded to subscribers a! the AGe Docu8uilder Contract Document Software
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.6 Final Completion occurs on the date when the Design-Builder's obligations under this Agreement
are complete and accepted by the Owner and final payment becomes due and payable.
.7 A Material Supplier is a party or entity retained by the Design-Builder to provide material and
equipment for the Work.
.8 Others means other contractors and all persons at the Worksite who are not employed by
Design-Builder, its Subcontractors or Material Suppliers.
.9 The Owner is the person or entity identified as such in this Agreement and Includes the Owner's
Representative.
.10 The Owner's Program is an initial description of the Owner's objectives, that may include budget
and time criteria, space requirements and relationships, fiexiblllty and expandability requirements,
special equipment and systems, and site requirements.
.11 The Project, as identified in Article 1, is the building, facility and/or other improvements for
which the Design-Builder is to perform the Work under this Agreement It may also include
improvements to be undertaken by the Owner or Others.
.12 A Subcontractor is a party or entity retained by the Design-Builder as an independent contractor
to provide the on-site labor, materials, equipment and/or services necessary to complete a specific
portion of the Work. The term Subcontractor does not include the Architect/Engineer or any separate
contractor employed by the Owner or any separate contractors subcontractors.
.13 Substantial Completion of the Work, or of a designated portion, occurs on the date when the
Design-Builder's obligations are sufficiently complete in accordance with the Contract Documents so
that the Owner can or does occupy or utilize the Project, or a designated portion, for the use for
which it is intended, in accordance with Paragraph 10.4. The issuance of a Certificate of Occupancy
is not a prerequisite for Substantial Completion if the Certificate of Occupancy cannot be obtained
due to factors beyond the Design-Builder's controi. This date shall be confirmed by a Certificate of
Substantial Completion signed by the Owner and the Design-Builder. The Certificate shall state the
respective responsibilities of the Owner and the Design-Builder for security, maintenance, heat,
utilities, damage to the Work, and insurance. The Certificate shall also list the Items to be completed
or corrected, and establish the time for their completion and correction, within the time frame, if any,
established In Amendment No.1 for the Date of Final Completion.
.14 A Subsubcontractor is a party or entity who has an agreement with a Subcontractor to perform
any portion of the Subcontractor's work.
.15 The Work is the Design Phase Services procured or furnished in accordance with Paragraph
3.1, the GMP Proposal provided In accordance with Paragraph 3.2, the Construction Phase Services
provided in accordance with Paragraph 3.3, Additional Services that may be provided in accordance
with Paragraph 3.10, and other services which are necessary to complete the Project in accordance
with and reasonably inferable from the Contract Documents.
.16 Worksite means the geographical area at the location mentioned ]n Article 1 where the Work is
to be pertormed.
ARTICLE 3
DESIGN-BUILDER'S RESPONSIBILITIES
The Design-Builder shall be responsible for procunng or furnishing the design and for the construction of
the Work consistent with the Owner's Program, as such Program may be modified by the Owner during
the course of the Work. The Design-Builder shall exercise reasonable skill and judgment ]11 the
4
DOCllBuilder" . AGC DOCUMENT NO. 410 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment 'IS the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price)@1999,TheAssociated General Contractors of AmeriCCl. All rights reserved. This document was produced electronically under the
grant of license pro\/lded to subscribers of the i\GC DocuBuilder Contract Document Software.
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performance of its services consistent with the team relationship described in Paragraph 2,1, but does not
warrant nor guarantee schedules and estimates other than those that are part of the GMP proposal.
The Design-Builder and the Owner may establish a Fast-track approach to the design and construction
services necessary to complete the Project Such agreement establishing a Fast-track approach and the
Schedule of the Work shall be included as an exhibit to this Agreement In the absence of such
agreement, the parties shall proceed in accordance with Paragraphs 3,1 and 3,3 below,
3,1 DESIGN PHASE SERVICES
3,1,1 PRELIMINARY EVALUATION, The Design-Builder shall review the Owner's Program to
ascertain the requirements of the Project and shall verify such requirements with the Owner, The
Design-Builder's review shall also provide to the Owner a preliminary evaluation of the site with
regard to access, traffic, drainage, parking, building placement and other considerations affecting the
building, the environment and energy use, as well as information regarding applicable governmental
laws, regulations and requirements, The Design-Builder shall also propose alternative architectural,
civil, structural, mechanical, electrical and other systems for review by the Owner, to determine the
most desirable approach on the basis of cost, technology, quality and speed of delivery, The
Design-Builder will also review existing test reports but will not undertake any independent testing
nor be required to furnish types of information derived from such testing in its Preliminary
Evaluation, Based upon its review and verification of the Owner's Program and other relevant
information the Design-Builder shat! provide a Preliminary Evaluation of the Projects feasibility for
the Owner's acceptance, The Design-Builder's Preliminary Evaluation shall specifically identify any
deviations from the Owner's Program:
3,1,2 PRELIMINARY SCHEDULE, The Design-Builder shall prepare a preliminary schedule of the
Work, The Owner shall provide written approval of milestone dates established in the preliminary
schedule of the Work, The schedule shall show the activities of the Owner, the ArchitecUEngineer
and the Design-Builder necessary to meet the Owner's completion requirements, The schedule shall
be updated periodically with the level of detail for each schedule update reflecting the information
then available, If an update indicates that a previously approved schedule will not be met, the
Design-Builder shall recommend corrective action to the Owner in writing.
3,1,3 PRELIMINARY ESTIMATE, When sufficient Project information has been identified, the
Design-Builder shall prepare for the Owner's acceptance a preliminary estimate utilizing area,
volume or similar conceptual estimating techniques, The estimate shall be updated periodically with
the level of detail for each estimate update reflecting the information then available, If the preliminary
estimate or any update exceeds the Owner's budget, the Design-Builder shall make
recommendations to the Owner,
3,1 A SCHEMATIC DESIGN DOCUMENTS, The Design- Builder shall submit for the Owner's wntten
approval Schematic Design Documents, based on the agreed upon Preliminary Evaluation,
Schematic Design Documents shall include drawings, outline specifications and other conceptual
documents illustrating the Projects basic elements, scale, and their relationship to the Worksite,
One set of these documents shall be furnished to the Owner, When the Design-Builder submits the
Schematic Design Documents the Design-Builder shall identify in writing all material changes and
deviations that have taken place from the Design-Builder's Preliminary Evaluation, schedule and
estimate, The Design-Builder shall update the preliminary schedule and estimate based on the
Schematic Design Documents,
T 1 ,5 PLANNING PERMITS, The DeSign-Builder shall obtain and the Owner shall pay for at!
pianning permits necessary for the construction of the Project
3,1,6 DESIGN DEVELOPMENT DOCUMENTS, The Design-Buiider shall submit for the Owner's
wrillen approval Design Development Documents based on the approved Schematic Design
5
DocuBuilder" . AGC DOCUME~IT NO, 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BET\NEEN OWNER AND DES1GN-BU1LDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Ma .mum
Price}@1999, The ASSOCiated General Contractors of America. All rights reserved. This document was produced electronically under he
grant of license provided to subscr'lbers of the AGC DocuBuilder Contract Document Software,
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Documents. The Design Development Documents shall furiher define the Project Including drawings
and outline specifications fixing and describing the Project size and character as to site utilization,
and other appropriate elements incorporating the structural, architectural, mechanical and electrical
systems. One set of these documents shall be furnished to the Owner. When the Design-Builder
submits the Design Development Documents, the Design-Builder shall identify in writing all material
changes and deviations that have taken place from the Schematic Design Documents. The
Design-Builder shall update the schedule and estirroto establish the GMP based on the Design
Development Documents.
3.1.7 CONSTRUCTION DOCUMENTS. The Design-Builder shall submit for the Owner's written
approval Construction Documents based on the approved Design Development Documents. The
Construction Documents shall set forth in detail the requirements for construction of the Work, and
shall consist of drawings and specifications based upon codes, laws and regulations enacted at the
time of their preparation. When the Design-Builder submits the Construction Documents, the
Design-Builder shall identify in writing all material changes and deviations that have taken place from
the Design Development Documents. Construction shail be in accordance with these approved
Construction Documents. One set of these documents shall be furnished to the Owner pnor to
commencement of construction. If ~ GMP hoc not boon ostoblichod, the Design-Builder shall
prepare a further update of the schedule and estimate based on the Construction Documents
Construction documents are not included in the Design Phase.
3.1.8 OWNERSHIP OF DOCUMENTS. Upon the making of payment pursuant to Paragraph 10.5,
the Owner shall receive ownership of the property rights, except for copyrights, of all documents,
drawings, specifications, electronic data and information prepared, provided or procured by the
Design-Builder, its ArchitecUEngineer, Subcontractors and consultants and distributed to the Owner
for this Project (Design-Build Documents)
.1 If this Agreement is terminated pursuant to Paragraph 12.2, the Owner shall receive
ownership of the properiy rights, except for copyrights, of the Design-Build Documents upon
payment for all Work performed in accordance with this Agreement, at which time the Owner
shall have the right to use, reproduce and make derivative works from the Design-Build
Documents to complete the Work.
.2 If this Agreement is terminated pursuant to Paragraph 12.3, the Owner shall receive
ownership of the properiy rights, except for copyrights, of the Design-Build Documents upon
payment of all sums provided in Paragraph 12.3, at which time the Owner shall have the right
to use, reproduce and make derivative works from the Design-Build Documents to complete
the Work.
.3 The Owner may use, reproduce and make derivative works from the Design-Build
Documents for subsequent renovation and remodeling of the Work, but shall not use,
reproduce or make derivative works from the Design-Build Documents for other projects
without the written authorization of the Design-Builder, who shall not unreasonably withhold
consent.
A The Owner's use of the Design-Build Documents without the Design-Builder's involvement
or on other projects is at the Owner's sole risk, except for the Design-Builder's indemnification
obligation pursuant to Paragraph 3.7, and the Owner shall defend, indemnify and hold
harmless the Design-Builder, its Architect/Engineer, Subcontractors and consultants, and the
agents, officers, directors and employees of each of them from and against any and all claims,
damages, losses, costs and expenses, including bul not limited to attorney's fees, costs and
expenses incurred in connection with any dispute resolution process, arising out of or resulting
from the Owner's use of the Design-Build Documents.
6
DocuBu;lder'M . AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUilD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed rvlaximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software.
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.5 The Design-Builder shall obtain from its ArchitecUEngineer, Subcontractors and
consultants property rights and rights of use that correspond to the rights given by the
Design-Builder to the Owner in this Agreement.
3.2 GUARANTEED MAXIMUM PRICE (GMP)
3.2.1 GMP PROPOSAL. At such time as the Owner and the Design-Builder jointly agree, the
Design-Builder shall submit a GMP Proposal in a format acceptable to the Owner. Unless the parties
mutually agree otherwise, the GMP shall be the sum of the estimated Cost of the Work as defined
in Article 8 and the Design-Builders Fee as defined in Article 7. The GMP is subject to modification
as provided in Article 9.
3.2.1.1 If the Design-Build Documents are not complete at the time the GMP Proposal is
submitted to the Owner, the Design-Builder shall provide in the GMP for further development
of the Design-Build Documents consistent with the Owner's Program. Such further
development does not include changes in scope, systems, kinds and quality of materials,
finishes or equipment, all of which if required, shall be incorporated by Change Order.
3.2.2 BASIS OF GUARANTEED MAXIMUM PRICE. The Design-Builder shall include with the GMP
Proposal a written statement of its basis, which shall include:
.1 a list of the drawings and specifications, including all addenda, which were used in
preparation of the GMP Proposal;
.2 a list of allowances and a statement of their basis;
.3 a list of the assumptions and clarifications made by the Design-Builder in the preparation of
the GMP Proposal to supplement the information contained in the drawings and specifications;
.4 the Date of Substantial Completion and/or the Date of Final Completion upon which the
proposed GMP is based, and the Schedule of Work upon which the Date of Substantial
Completion and/or the Date of Final Completion is based;
.5 a schedule of applicable alternate prices;
.5 a schedule of applicable unit prices;
.7 a statement of Additional Services included, if any;
.8 .the time limit for acceptance of the GMP proposal;
.9 the Design-Builder's Contingency as pro,ided in Subparagraph 3.2.7;
.10 a statement of any work to be self-performed by the Design-Builder; and
.11 a statement identifying all patented or copyrighted materials, methods or systems
selected by the Design-Builder and incorporated in the Work that are likely to require the
payment of royalties or license fees.
3.2.3 REVIEW AND ADJUSTMENT TO GMP PROPOSAL The Design-Builder shall meet with the
Owner to review the GMP Proposal. In the event that the Owner has any comments relative to the
GMP Proposal, or finds any inconsistencies or Inaccuracies in the information presented. it shall
give prompt written notice of such comments or findings to the Design-Builder, who shall make
appropriate adjustments to the GMP, Its baSIS or both.
3.2.4 ACCEPTANCE OF GMP PROPOSAL Upon acceptance by the Owner of the GMP Proposal,
as may be amended by the Design-Builder in accordance with Subparagraph 3.2.3, the GMP and its
basis shall be set forth In Amendment No.1. The GMP and the Date of Substantial Completion
and/or the Date of Final Completion shall be subject to modification in Article 9.
7
DocuBuilder" . AGC DOCUMENT NO. 410, STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND OESlGN-BU\LDER (Where the Basis of Payment IS the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price)@1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers at the ,i\GC DocuBuHder Contract Document Software
!r')Voodall Carwas~l
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3.2.5 FAILURE TO ACCEPT THE GMP PROPOSAL Unless the Owner accepts the GMP PrDpDsal
In writing Dn Dr befDre the date specified in the GMP Proposal for "uch acceptance and so notifies
the Design-Builder, the GMP PropDsal shall nDt be effective, If the Owner fails to accept the GMP
Proposal, Dr rejects the GMP PrDpDsal, the Owner shall have the fight tD:
.1 Suggest modifications to the GMP Proposal. Ii such mDdificatlDns are accepted in writing
by Design-Builder, the GMP Proposal shall be deemed accepted in accordance with
Subparagraph 3.2.4;
.2 Direct the Design-Builder to proceed on the basis of reimbursement as provided in Articles
7 and 8 withDut a GMP, in which case all references in this Agreement to the GMP shall not
be applicable; Dr
.3 Terminate the Agreement for convenience in accDrdance with Paragraph 12.3.
in the absence of a GMP the parties may establish a Date of Substantial Completion and/or a
Date of Final CDmpletion.
3.2.6 PRE-GMP WORK Prior to the Owner's acceptance of the GMP Proposal, the Design-Builder
shall not incur any CDSt tD be reimbursed as part of the Cost Df the WDrk, except as provided in this
Agreement or as the Owner may specifically authorize in writing.
3.2.7 DESIGN-BUILDER'S CONTINGENCY The GMP Proposal will contain, as part of the
estimated Cost of the Work, the Design-Builder's Contingency, a sum mutually agreed upDn and
monitored by the Design-Builder and the Owner for use at the Design-Builder's discretion toco~er
costs which are properly reimbursable as a Cost of the Work but are not the basis for a Change
Order.
3.3 CONSTRUCTION PHASE SERVICES
3.3.1 The Construction Phase will commence upon the issuar1ce by the Owner of a written notice tD
proceed with construction. If constr~Gtion commoncos prior te and executiDn of Amendment ND. 1,
the Docigr Eluildor chall pfGpare fur tho ONnor's \Vritlon approval a list of the dGwmonts thGt aro
applicable to the port of the Work which tho Owner has authorized, which list sholl be iAclu80d in the-
Owner's writton notico to proceod.
3.3.2 In order to complete the Work, the Design-Builder shall provide all necessary construction
supeNision, inspectiDn, construction equipment, labor, materials, tools, and subcontracted items.
3.3.3 The Design-Builder shall give all nDtices and comply with all laws and ordinances legally
enacted at the date of execution Df the Agreement which go~ern the proper performance of the Work.
3.3.4 The Design-Builder shall obtain and the Owner shall pay for the building permits necessary for
the construction of the Project.
3.3.5 The Design-Builder shall keep such full and detailed accounts as are necessary for proper
financial management under this Agreement The Owner shall be affDrded access to all the
Design-Builder's records, bDDks, correspDndence, instructions, drawings, receipts, vouchers,
memoranda and similar data relating to this Agreement The Design-Builder shall preserve all such
records for a period of three years after the final paymeflt or longer where required by law.
3.3.6 The Design-Builder shall provide periodic writtefl reports to the Owner on the progress of the
Work in such detail as is required by the Owner and as agreed to by the Owner and the
Design-Builder.
3.3.7 The Design-Builder shall develop a system of cost reporting for the Work, Including regular
mDnitoring of actual costs for activities in progress and estimates for uncompleted tasks and
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DocuBuilder"" AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIDNS
BET\NEEN OWNEP, AND DESIGN-BUILDER {Where the BaSIS of Payment IS the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1 999, The Associated General Contractors of America. A:I fights reserved. This document was produced electronically under the
grarct of (icer\se proVIded to subscribers of the AGe DocuBuilder Contract Document Software.
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proposed changes in the Work. The reports shall be presented to the Owner at mutually agreeable
intervals.
3.3.8 The Design-Builder shall regularly remove debris and waste materials at the Worksite
resulting from the Work. Prior to discontinuing Work in an area, the Design-Builder shall clean the
area and remove all rubbish and its construction equipment, tools, machinery, waste and surplus
materials. The Design-Builder shall minimize and confine dust and debris resulting from construction
activities. At the completion of the Work, the Design-Builder shall remove from the Worksile all
construction equipment, tools, surplus materials, waste materials and debris.
3.3.9 The Design-Builder shall prepare and submit to the Owner:
final marked up as-built drawings
updatod 010ctroni6 data
(Exclude one of the above)
in general documenting how the various elements of the Work including changes were actually
constructed or installed, or as defined by the parties by attachment to this Agreement.
3.4 SCHEDULE OF THE WORK. The Design-Builder shall prepare and submit a Schedule of Work for
the Owner's acceptance and written approval as to milestone dates. This schedule shall indicate the dates
for the start and completion of the various stages of the Work, including the dates when information and
approvals are required from the Owner. The Schedule shall be revised as required by the conditions of the
Work.
3.5 SAFETY OF PERSONS AND PROPERTY
3.5.1 SAFETY PRECAUTIONS AND PROGRAMS. The Design-Builder shall have overall
responsibility for safety precautions and programs in the performance of the Work. While the
provisions of this Paragraph establish the responsibility for safety between the Owner and the
Design-Builder, they do not relieve Subcontractors of their responsibility for the safety of persons or
property in the performance of their work, nor for compliance with the provisions of applicable laws
and regulations.
3.5.2 The Design-Builder shall seek 10 avoid injury, loss or damage to persons or property by taking
reasonable steps to protect:
.1 its employees and other persons at the Worksite;
.2 materials, supplies and equipment stored at the Worksife for use In performance of the
Work; and
.3 the Project and all property located at the Worksite and adjacent to work areas, whether or
not said property or structures are part of the Project or involved in the Work.
3.5.3 DESIGN-BUILDER'S SAFETY REPRESENTATIVE. The Design-Builder shall designate an
indiVidual at the Worksite in the employ of the Design-Builder who shall act as Ihe Design-Builder's
designated safety representative with a duty to prevent accidents. Unless otherwise identified by the
Design-Builder in writing to the Owner. the designated safety representative shall be the
Design-Builder's project superintendent. The Design-Builder will report immediately in writing all
accidents and injuries occurrif1g at the Worksi!e to the Owner. When the Design-Builder is required
to file af1 accident report with a public authority, the Design-Builder shall furnish a copy of the report
to the Owner.
3.5.4 The Desigf1-Builder shall provide the Owner wilh copies of all notices required of the
Design-Buiider by law or regulation. The Design-Builder's safety program shall comply with the
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DocuBuilder'" . AGC DOCUMENT NO. 410 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESlGN-BUtLOER (Where the Basis of Payment\s the Cost OftDS Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The .A.ssociated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software.
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requ'irements of governmental and quasi-governmental authorities naving jurisdiction over the Work.
3.5.5 Damage or loss not insured under property insurance which may arise from the performance
of the Work, to the extent of the negligence attributed to such acts or omissions of the
Design-Builder, or anyone for whose acts the Design-Builder may be liable, shall be promptly
remedied by the Design-Builder. Damage or loss attributable to the acts or omissions of the Owner
or Others and not to the Design-Builder shall be promptly remedied by the Owner.
3.5.6 If the Owner deems any part of the Work or Worksite unsafe, the Owner, without assuming
responsibility for the Design-Builder's safety program, may require the Design-Builder to stop
periormance of the Work or take corrective measures satisfactory to the Owner, or both. If the
Design-Builder does not adopt corrective measures, the Owner may periorm them and reduce by the
costs of the corrective measures the amount of the GMP, or in the absence of a GMP, the Cost of
the Work as provided in Article 8. The Design-Builder agrees to make no claim for damages, for an
increase in the GMP, compensation for Design Phase Services, the Design-Builder's Fee and/or the
Date of Substantial Completion and/or the Date of Final Completion based on the Design-Builder's
compliance with the Owner's reasonable request.
3.6 HAZARDOUS MATERIALS
3.6.1 A Hazardous Materiat is any substance or matenal identified now or in the future as hazardous
under any federal, state or local law or regulation, or any other substance or material which may be
considered hazardous or otherwise subject to statutory or regulatory requirements governing
handling, disposal and/or clean-up. The Design-Builder shall not be obligated to commence or
continue work until all Hazardous Material discovered at the Worksite has been removed, rendered
or determined to be harmless by the Owner as certified by an independent testing laboratory
apprDved by the appropriate government agency.
3.6.2 If after the CDmmencement of the Work, Hazardous Material is discovered at the Project, the
Design-Builder shall be entitled to immediately stop Work in the affected area. The Design-Builder
shall report the condition to the Owner and, if required, the government agency with jurisdiction.
3.6.3 The Design-Builder shall not be required to perform any Work relating to or in the area of
Hazardous Material without written mutual agreement.
3.6.4 The Owner shall be responsible for retaining an independent testing laboratory to determine
the nature of the material encountered and whether it is a Hazardous Material requiring corrective
measures and/or remedial action. Such measures shall be the sole responsibility of the Owner, and
shall be periormed in a manner minimizing any adverse effects upon the Work of the Design-Builder.
The Design-Builder shall resume WDrk in the area affected by any Hazardous Material only upon
written agreement between the parties after the Hazardous Material has been remDved or rendered
harmless and only after approval, if necessary, Df the governmental agency or agencies with
jurisdiction.
3.6.5 If the Design-Builder incurs additional costs and/or is delayed due to the presence or
remediation of Hazardous Material, the Design-Builder shall be entitled to an equitable adjustment In
the GMP, compensation for Design Phase Services, the Design-Builder's Fee and/Dr the Date of
Substantial CDmpletlon and/or the Date Df Final Completion.
3.6.6 Provided the Design-Builder, Its Subcontractors, Material Suppliers and Subsubcontractors,
and the agents, officers, directors and employees of each Df them, have not, acting under their own
authority, knowingly entered upon any portion of the Work containing Hazardous i'vlaterials, and to
the extent nDt caused by the negligent acts or omissions of the Design-Builder, its Subcontractors,
Material Suppliers and Subsubcontractors, and the agents, officers, directors and emplDyees at each
of them, the Owner shall defend, indemnify and hDld harmless the Design-Builder, its Subcontractors
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DocuBuilder'" . AGC DOCUMENT NO. 410, STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDiTIONS
BETWEEN OWNER ANO OESIGN-BUtLDER (Where the Basis of Payment 'IS the Cosl 01 the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All fights reserved. This document was produced electronically under the
grant of license pro\fided to subscribers of the AGe DocuBuilder Contract Document Softwars_
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and Subsubcontractors, and the agents, officers, directors and employees of each of them, from and
against any and all direct claims, damages, losses, costs and expenses, including but not limited to
attorney's fees, costs and expenses incurred in connedon with any dispute resolution process,
arising out of or relating to the performance of the Work in any area affected by Hazardous Matenal.
To the fullest extent permitted by law, such indemnification shall apply regardless of the fault,
negligence, breach of warranty or contract, or strict liability of the Owner.
3.6.7 Material Safety Data (MSD) sheets as required by law and pertaining to materials or
substances used or consumed in the performance of the Work, whether obtained by the
Design-Builder, Subcontractors, the Owner or Others, shall be maintained at the Project by the
Design-Builder and made available to the Owner and Subcontractors.
3.6.8 During the Design-Builder's performance of the Work, the Design-Builder shall be responsible
for the proper handling of all materials brought to the Worksite by the Design-Builder. Upon the
issuance of the Certificate of Substantial Completion, the Owner shall be responsible under this
Paragraph for materials and substances brought to the site by the Design-Builder if such materials
or substances are required by the Contract Documents.
3.6.9 The terms of this Paragraph 3.6 shall survive the completion of the Work under this
Agreement and/or any termination of this Agreement.
3.7 ROYALTIES, PATENTS AND COPYRIGHTS. The Design-Builder shall pay all royalties and license
fees which may be due on the inclusion of any patented or copyrighted materials, methods or systems
selected by the Design-Builder and incorporated in the Work. The Design-Builder shall defend, indemnify
and hold the Owner harmless from alt suits or claims for infringement of any patent rights or copyrights
arising out of such selection. The Owner agrees to defend, indemnify and hold the Design-Builder
harmless from all suits or claims of infringement of any patent rights or copyrights arising out of any
patented or copyrighted materials, methods or systems specified by the Owner.
3.8 WARRANTIES AND COMPLETtON
3.8.1 The Design-Builder warrants that all materials and equipment furnished under the Construction
Phase of this Agreement will be new unless otherwise specified, of good quality, in conformance
with the Contract Documents, and free from defective workmanship and materials. Warrant'les shall
commence on the Date of Substantial Completion of the Work or of a designated portion. The
Design-Builder agrees to correct all construction performed under this Agreement which is defeelive
in workmanship or materials within a period of one year from the Date of Substantial Completion or
for such longer periods of time as may be set forth with respect to specific warranties required by
the Contract Documents.
3.8.2 To the extent products, equipment, systems or materials incorporated In the Work are
specified and purchased by the Owner, they shall be covered exclusively by the warranty of the
manufacturer. There are no warranties which extend beyond the description on the face of any such
warranty. To the extent products, equipment, systems or materials incorporated in the Work are
specified by the Owner but purchased by the Design-Builder and are inconsistent with selection
criteria that otherwise would have been followed by the Design-Builder, the Design-Builder shall
assist the Owner in pursuing warranty claims. ALL OTHER WARRANTIES EXPRESSED OR
IMPLIED INCLUDING THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
3.8.3 The Design-Builder shall secure required certificates of inspection, testing or approval and
deliver them to the Owner.
3.8.4 The Design-Builder shall collect all written warranties and equipment manuals and deliver
them to the Owner in a format directed by the Owner.
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DocuBuilder'M . AGC DOCUMENT NO. 410 . ST."'NDARD FORM OF DESIGN-BUILD AGREEMENT AND GENER.AL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Paymellt is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to SUbscflbers of the AGC DocuBuilcer Contract Document Software.
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3.8.5 With the assistance of the Owner's maintenance personnel, the Design-Builder shall direct the
checkout of utilities and start up operations, and adjusting and balancing of systems and equipment
for readiness.
3.9 CONFIDENTIALITY. The Design-Builder shall treat as confidential and not disclose to third persons,
except Subcontractors, Subsubcontractors and the Architect/Engineer as is necessary for the
performance of the Work, or use for its own benefit any of the Owner's developments, confidential
information, know-how, discoveries, production methods and the like that may be disclosed to the
Design-Builder or which the Design-Builder may acquire in connection with the Work. The Owner shall
treat as confidential information all of the Design-Builder's estimating systems and historical and
parameter cost data that may be disclosed to the Owner in connection with the performance of this
Agreement.
3.10 ADDITIONAL SERVICES. The Design-Builder shall provide or procure the following Additional
Services upon the request of the Owner. A written agreement between the Owner and the Design-Builder
shall define the extent of such Additional Services before they are performed by the Design-Builder. If a
GMP has been established for the Work or any portion of the Work, such Additional Services shall be
considered a Change in the Work, unless they are specifically included in the statement of the basis of
the GMP as set forth in Amendment NO.1.
.1 Development of the Owner's Program, establishing the Project budget, investigating sources of
financing, general business planning and other information and documentation as may be required to
establish the feasibility of the Project.
.2 Consultations, negotiations, and documentation supporting the procurement of Project financing.
.3 Surveys, site evaluations, legal descriptions and aerial photographs.
.4 Appraisals of existing equipment, existing properties, new equipment and developed properties.
.5 Soils, subsurface and environmental studies, reports and investigations required for submiss'lon
to governmental authorities or others having jurisdiction over the Project.
.6 Consultations and representations before governmental authorities or others having jurisdiction
over the Project other than normal assistance in securing building permits.
.7 Investigation or making measured drawings of existing conditions or the reasonably required
verification of Owner -provided drawings and Information.
.8 Artistic renderings, models and mockups of the Project or any part of the Project or the Work.
.9 Inventories of existing furniture, fixtures, furnishings and equipment which might be under
consideration for incorporation into the Work.
.10 Interior design and related services including procurement and placement of furniture,
furnishings, artwork and decorations.
.11 Making revisions to the Schematic Design, DeSign Development, Construction Documents or
documents forming the basis of the GMP after they have been approved by the Owner, and which
are due to causes beyond the control of the Design-Builder. Causes beyond the control of the
Design-Builder do not include acts or omissions on the part of Subcontractors, Material Suppliers,
Subsubcontractors or the Architect/Engineer.
.12 Design, coordination, management, expediting and other services supporting the procurement
of matenals to be obtained, or work to be performed, by the Owner, Including but not limited to
telephone systems, computer wiring networks, sound systems, alarms, security systems and other
specialty systems which are not a part of the Work.
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DocuBuilder'" . AGe DOCUMENT NO. 410. STANDARD FORNI 0, DESIGr-.-BUILO AGREEMENT ANO GENER~L CONOITIONS
BETWEEN OWNER AND DESIGN-BUlLOER (Where the Basis of Payment \s the Cost of the Work Plus a Fee with a Guaranteed Max'lmum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the A.GC OocuBuilder Contract Document Soltware.
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.13 Estimates, proposals, appraisals, consultations, negotiations and services in conneclion with
the repair or replacemerlt of arl insured loss, provided such repair or replacement did not result from
the negligence of the Design-Builder.
.14 The premium portion of overtime work ordered by the Owner, Including productivity Impact
costs, oll,er than that required by the Design-Builder to maintain the Schedule of Work.
.15 Out-of-town travel by the Architect/Engineer in connection with the Work, except between the
Architect/Engineer's office, the Design-Builder's office, the Owner's office and the Worksite.
.16 Obtaining service contractors and training maintenance personnel, assisting and consulting in
the use of systems and equipment after the initiai start up.
.17 Services for terlarlt or rental spaces not a part of this Agreement.
.18 Services requested by the Owner or required by the Work which are not specified in the
Contract Documents and which are not normally part of generally accepted design and construction
practice.
.19 Serving or preparing to serve as an expert witness in connection with any proceeding, legal or
otherwise, regarding the Project.
.20 Document reproduction exceeding the limits provided for in this Agreement.
3.11 DESIGN-BUILDER'S REPRESENTATIVE The Design-Builder shall designate a person who shall be
the Design-Builder's authorized representative. The Design-Builder's Representative is Ivan Martin.
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 INFORMATION AND SERVICES PROVIDED BY OWNER
4.1.1 The Owner shall provide full information in a timely manner regardirlg requirements for the
Project, including the Owner's Program and other relevant information.
4.1.2 The Owner shall provide:
.1 all available information describing the physical characteristics of the site, including
surveys, site evaluations, legal descriptions, existing conditions, subsurface and environmerllal
studies, reports and investigations;
.2 inspection and testing services during construction as reqUired by law or as mutually
agreed: and
.3 unless otherwise provided in the Contract Documents, necessary approvals, site plan
review, rezoning, easements and assessments, fees and charges required for the
construction, use, occupancy or renovation of permanent structures, including iegal and other
required services.
4.1.3 The Owner shall provide reasonable eVidence satisfactory to the Design-Builder, prior to
commerlcing the Work and during the progress of the Work, that sufficient funds are avaiiable and
committed for the entire cost of the Project, including a reasonable allowance for changes in the
Work as may be approved in the course of the Work. Unless such reasonable evidence is provided,
the Design-Builder shall not be required to commence or continue the Work. The Design-Builder
may stop Work after seven (7) days' written notice to the Owner if such evidence is not presented
within a reasonable time. The failure of the Design-Builder 10 insist upon the providing of this
evidence at anyone time shall not be a waiver of the Owner's obligation to make payments pursuant
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DocuBuilder" . AGC DOCUMENT ~IO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with <3 Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. Tllis document was produced electronicaiiy under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software.
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to this Agreement, nor shalt it be a waiver of the Design-Builder's nghtto require that such evidence
be provided at a later date.
4.1.4 The Design-Builder shall be entitled to rely on the completeness and accuracy of the
Information and services required by this Paragraph 4.1.
4.2 RESPONSIBILITIES DURING DESIGN PHASE
4.2.1 The Owner shall provide the Owner's Program at the inception of the Design Phase and shall
review and timely approve in writing schedules, estimates, Preliminary Estimate, Schematic Design
Documents, Design Development Documents and Construction Documents furnished during the
Design Phase as set forth in Paragraph 3.1, and the GMP Proposal as set forth in Paragraph 3.2.
4.3 RESPONSIBILITIES DURING CONSTRUCTION PHASE
4.3.1 The Owner shall review the Schedule of the Work as set forth in Paragraph 3.4 and timely
approve the milestone dates set forth.
4.3.2 If the Owner becomes aware of any error, omission or failure to meet the requirements of the
Contract Documents or any fault or defect in the Work, the Owner shall give prompt written notice to
the Design-Builder.
4.3.3 The Owner shall communicate with the Design-Builder's Subcontractors, Material Suppliers
and the Architect/Engineer only through or in the presence of the Design-Builder. The Owner shall
have no contractual obligations to Subcontractors, suppliers, or the ArchitecVEngineer.
4.3.4 The Owner shall provide insurance for the Project as provided in Article 11.
4.4 OWNER'S REPRESENTATIVE. The Owner's Representative is Reverend Robert WDDdal1. The
Representative:
.1 shall be fully acquainted with the Project;
.2 agrees tD furnish the infDrmatiDn and services required of the Owner pursuant tD Paragraph 4.1
so as nDt to delay the Design-Builder's WDrk; and
.3 shall have authDrity tD bind the Owner in all matters requiring the Owner's approval,
authDrization or written notice. If the Owner changes its representative or the representatives
authority as listed abDve, the Owner shall notify the Design-Buiider in writing in advance.
4_5 TAX EXEMPTION. If in accordance with the Owner's direction the Design-Builder claims an
exemption fDr taxes, the Owner shall defend, indemnify and hold the Design-Builder harmless for all
liability, penalty, Interest, fine, tax assessment, attorney's fees or other expense or cost incurred by the
Design-Builder as a result Df any action taken by the Design-Builder in accordance with the Owner's
direction.
ARTICLE 5
SUBCONTRACTS
WDrk not performed by the Design-Builder with its Dwn forces shall be performed by SubcontractDrs Dr the
Architect/Engineer.
5.1 RETAINING SUBCONTRACTORS. The Design-Builder shall not relain any subcontractor to whom
the Owner has a reasonable and timely objection, prDvided that the Owner agrees to compensate the
Deslgn-Builder for any additiDnat costs incurred by the Design-Builder as a result of such DbJectlon. The
Owner may propDse subcDntractors tD be cDnsidered by the Design-Builder. The Design-Builder shall not
be required tD retain any subcontractor to whom the Design-Builder has a reasonable obJectiDn.
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DocuBuilderfM . AGC DOCUMENT NO. 410 ' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETW:::EN OWNER AND DESIGN-BUILDER {Where the Basis of Payment Is the Cost of tile Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The AssOCIated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license pmvided to subscribers OT the AGe DocLlBuilder Contract Document Software.
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5,2 MANAGEMENT OF SUBCONTRACTORS, The Design-Builder she,ll be responsible for the
management of the Subcontractors in the performance of their work,
5,3 ASSIGNMENT OF SUBCONTRACT AGREEMENTS, The Design-Builder shall provide for assignment
of subcontract agreements in the event that the Owner terminates this Agreement for cause as provided in
Paragraph 12.2, Following such termination, the Owner shall notify in writing those Subcontractors whose
assignments will be accepted, subject to the rights of sureties,
5.4 BINDING OF SUBCONTRACTORS AND MATERIAL SUPPLIERS, The Design-Builder agrees to bind
every Subcontractor and Material Supplier (and require every Subcontractor to so bind its
SubsubcontractDrs and Material Suppliers) tD all the provislDns Df this Agreement and the Contract
DDcuments as they apply to the SubcDntractorsand Material Suppliers pDrtions of the Work,
5,5 LABOR RElATIONS See Exhibit #2
ARTICLE 6
TIME
6,1 DATE OF COMMENCEMENT, The Date of Commencement is the effective date of this Agreement as
first written in Article 1 unless Dtherwise set forth below: (Insert here any special provisions cDncerning
Notices to Proceed and the Date of Commencement.) or the date when this Agreement IS executed by all
parties, whichever Is the latter.
The Work shall proceed in general accDrdance with the Schedule of Work as such schedule may be
amended from time to time, subject, however, to other provisions of this Agreement
6,2 SUBSTANTIAUFINAL COMPLETION, Unless the parties agree otherwise, the Date of Substantial
CompletlDn and/or the Date of Final Completion shall be established in Amendment No, 1 to this
Agreement subject to adjustments as provided for in the Contract Documents, The Owner and the
Design-Builder may agree not to establish such dates, or in the alternative, to establish one but not the
other of the two dates, If such dates are not established upon the execution of this Agreement, at such
time as a GMP is accepted a Date of Substantial Completion and/or Date of Final Completion of the Work
shall be established in Amendment No, 1, If a GMP is not established and the parties desire to establish a
Date of Substantial Completion and/or Date of Final Completion, it shall be set forth in Amendment No, 1.
6,2.1 Time limits stated in the Contract Documents are of the essence,
6,2,2 Unless instructed by the Owner in writing, the DeSign-Builder shall not knowingly commence
the Work before the effective date of insurance that is required to be provided by the Design-Builder
or the Owner,
6,3 DELAYS IN THE WORK
6,3,1 If causes beyond the Design-Builder's controt detay the progress of the Work, then the GMP,
compensation for DeSign Phase Services, the Design-Builder's Fee and/or the Date of Substantial
Completion andlor the Date of Final Complelion shall be modified by Change Order as apprcpriate,
Such causes shall include but not be limited to: changes ordered in the Work, acts or omissions of
the Owner or Others, the Owner preventing the Design-Builder from performing the Work pending
dispute resolution, Hazardous Materials or differing site conditions. Causes beyond the control of the
Design-Builder do not Include acts or omissions on the part of the Design-Builder, Subcontractors,
Sub subcontractors, Material Suppliers or the ArchitecUEnglneer.
15
DocuBuilder'" . AGC DOCUMENT NO 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONOiTIONS
BETWEEN OW!'lER AND DESIGN-BUILDER (Where the Basis of PClyment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. Ail rights reserved. This document was produced electronically under the
grant of Ileen58 provided to subscribers of the AGe DocuBuilder Contract Document Software.
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6.3.2 To the extent a delay in the progress of the Work is caused by adverse weather conditions
not reasonably anticipated, fire, unusual transportation delays, general labor disputes impacting the
Project but not specifically related to the Worksite, governmental a~'encies, or unavoidable
accidents or circumstances, the Design-Builder shall only be entitled to Its actual costs without fee
and an extension of the Date of Substantial Completion and/or Ihe Date of Final Completion.
6.3.3 In the event delays to the Project are encountered for any reason, the parties agree to
undertake reasonable steps to mitigate the effect of such delays.
ARTICLE 7
COMPENSATION
7.1 DESIGN PHASE COMPENSATION
7.1.1 To the extent required by applicable law, the cost of services performed directly by the
Architect/Engineer is computed separately and is independent from the Design-Builder's
compensation for work or services performed directly by the Design-Builder; these costs shall be
shown as separate items on applications for payment. If an Architect/Engineer IS retained by the
Design-Builder, the payments to the Architect/Engineer shall be as detailed in a separate agreement
between the Design-Builder and the ArchitectJEngineer.
7.1.2 The Owner shall compensate the Design-Builder for services performed during the Design
Phase as described in Paragraph 3.1.1 through 3.1.6, including preparation of a GMP Proposal, if
applicable, as described in Paragraph 3.2, as fDIIDWS:
(State whether a stipulated sum, actual cost, or other basis. If a stipulated sum, slate what
portion Df the sum shall be payable each mDnth.) See Exhibit #3.
7.1.3 CompensatiDn for Design Phase Services, as part of the Work, shall include the
Design-Buiider's Fee as established in Paragraph 7.3, paid in propDrtion tD the services performed,
subject to adjustment as provided in Paragraph 7.4.
7.1.4 Compensation for Design Phase Services shall be equitably adjusted if such services extend
beyond six mDnths from the date of this Agreement for reasons beyond the reasonable control of the
Design-Builder or as provided in Paragraph 9.1. For changes in Design Phase services,
compensatiDn shall be adjusted as follows: Per 9.1.2
7.1.5 Within fifteen (15) days after receipt Df each mDnthly application for payment, the Owner shall
give written notice to the Design-Builder of the Owner's acceptance Dr rejection, in whDle or in part,
of such application for payment. Within fifteen (15) days after accepting such application, the Owner
shall pay directly to the Design-Builder the appropriate amount fDr which application for payment is
made, less amounts previously paid by the Owner. If such application IS rejected in whole or in part,
the Owner shall indicate the reasons for its rejection. If the Owner and the Design-Builder cannDt
agree on a revised amount then, within fifteen (15) days after its initial rejection in part of such
application, the Owner shall pay directly to the Design-Builder the apprDpriate amount for those
items not rejected by the Owner for which applicatiDn for payment is made, less amounts previously
paid by the Owner. Those items rejected by the Owner shall be due and payable when the reaSDns
for the rejection have been removed.
7.1.6 If the Owner faits to pay the Design-Builder at the time payment Df any amount becomes due,
then the Design-Builder may, al any time thereafter, upon serving written notice that the Work will be
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DocuBuilder'M. AGC DOCUMENT NO. 410' STANDARD FORM OF OESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND OESIGN-BUILDER (Where the Basis of Payment "IS trw Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software
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stopped within seven (7) days after receipt of the notice by the Owner, and after such seven (7) day
penod, stop the Work until payment of the amount owing has been received.
7.1.7 Payments due pursuant to Subparagraph 7.1.5, may bear interest from the date payment is
due at the prime rate prevailing at the location Df PrDject.
7.2 CONSTRUCTION PHASE COMPENSATION
7.2.1 The Owner shall compensate the Design-Builder for WDrk perfDrmed following the
CDmmencement Df the Construction Phase Dn the fDIlDwing basis:
.1 the Cost Df the Work as allDwed in Article B; and
.2 the Design-Builder's Fee paid in proportion to the services performed subtect tD adjustment
as prDvided in Paragraph 7.4.
7.2.2 The compensation to be paid under this Paragraph 7.2 shall be limited to the GMP
established in Amendment No.1, as the GMP may be adjusted under Article 9.
7.2.3 Paymenl fDr CDnstruction Phase Services shall be as set forth in Article 10. If Design Phase
Services cDntinue to be provided after construction has commenced, the Design-Builder shall
continue tD be compensated as provided in Paragraph 7.1, or as mutually agreed.
7.3 DESIGN-BUILDER'S FEE. The Design-Builder's Fee shall be as follows, subject to adjustment as
provided in Paragraph 7.4:
(State whether a stipulated sum Dr other basis. If a stipulated sum, state what portion of the sum
shall be payable each month.) 8% of the total Guaranteed Maximum Price.
7.4 ADJUSTMENT IN THE DESIGN-BUILDER'S FEE Adjustment in the Design-Builder's Fee shall be
made as fDllows:
.1 lor changes in the WDrk as provided in Article 9, the Design-Builder's Fee shall be adjusled as
fDllows: Per 9.1.2
.2 for delays in the WDrk not caused by the Design-Builder, except as provided in Subparagraph
6.3.2, there will be an equitable adjustment in the Design-Builder's Fee to compensate the
Design-Builder for increased expenses; and
.3 if the Design-Builder is placed in charge of managing the replacement Df an insured or uninsured
loss, the Design-Builder shall be paid an additional fee in the same proportiDn that the
Design-Builder's Fee bears to the estimated Cost of the Work for the replacement.
ARTICLE 8
COST OF THE WORK
The Owner agrees to pay the Design-Builder for the Cost of the WDrk as defined in this Article. ThiS
payment shall be in addition to the Design-Builder's Fee stipulated in Paragraph 7.3.
8.1 COST ITEMS FOR DESIGN PHASE SERVICES
8.1.1 Compensation for Design Phase Services as provided in Paragraph 7.1.
8.2 COST ITEMS FOR CONSTRUCTION PHASE SERVICES
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DocuBuilder'" AGe DOCUMENT NO. 410. STANDARD FORMOF DESIGN.BUILD AGREEMENT AND GENERAL CONDITIONS
BETVVEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
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8.2.1 Wages paid for labor in the direct employ of the Design-Builder In the periormance of the
Work.
8.2.2 Salaries of the Design-Builder's employees when stationed at the field office, In whatever
capacity employed, employees engaged on the road expediting the production or transportation of
material and equipment, and employees from the principal or branch office performing the functions
listed below: See Exhibit #4
8.2.3 Cost of all employee benefits and taxes including but not limited to workers compensation,
unemployment compensation, Social Security, health, welfare, retirement and other fringe benefits
as required by law, labor agreements, or paid under the Design-Builder's standard personnel policy,
insofar as such costs are paid to employees of the Design-Builder who are included in the Cost of
the Work under Subparagraphs 8.2.1 and 8.2.2.
8.2.4 Reasonable transportation, travel, hotel and moving expenses of the Design-Builder's
personnel incurred in connection with the Work.
8.2.5 Cost of all materials, supplies and equipment incorporated in the Work, including costs of
inspection and testing if not provided by the Owner, transportation, storage and handling.
8.2.6 Payments made by the Design-Builder to Subcontractors for work performed under this
Agreement.
8.2.7 Fees and expenses for design services procured or furnished by the Design-Builder except as
provided by the Architect/Engineer and compensated in Paragraph 7.1.
8.2.8 Cost, including transportation and maintenance of all materials, supplies, equipment,
temporary facilities and hand tools not owned by the workers that are used or consumed in the
performance of the Work, less salvage value and/or residual value', and cost less salvage value on
such items used, but not cDnsumed that remain the property of the Design-Builder.
8.2.9 Rental charges of all necessary machinery and equipment, exclusive of hand tools owned by
workers, used at the WDrksite, whether rented from the Design-Builder or Others, including
installatiDn, repair and replacement, dismantling, removal, maintenance, transportation and delivery
CDStS. Rental from unrelated third parties shall be reimbursed at actuai cost. Rentals from the
Design-Builder or its affiliates, subsidiaries or related parties shall be reimbursed at the prevailing
rates in the locality of the Worksite up to eighty-five percent (85%) of the value of the piece of
equipment.
8.2.10 Cost of the premiums for all insurance and surety bonds which the Design-Builder is required
to procure or deems necessary, and approved by the Owner.
8.2.11 Sales, use, gross receipts or other taxes, tariffs or duties related to the Work for which the
Design-Builder is liable.
8.2.12 Permits, fees, licenses, tests, royalties, damages for infringement of patents and/or
copyrights, including costs of defending related suits for which the Design-Builder is not responsible
as set forth In Paragraph 3.7, and deposits lost for causes other than the Deslgn-Builder's
negligence.
8.2.13 Losses, expenses or damages to the extent not compensated by insurance or otherwise,
and the cost of corrective work and/or redeSign during the Construction Phase and for a period Df
Dne year fDIIDwing the Date Df Substantial Completion, provided that such corrective work and/or
redesign did not arise from the negiigence of the Design-Builder.
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BETWEEN OWNER AND DESlGN~8UILDE.R (Where the Basis of Payment is the Cosl of the Work Plus a Fee with a Guaranteed Maximur.l
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under ttle
grant of license provlded to subscribers of the AGe DoclIBllilder Contract Document Software.
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8.2.14 All costs associated with establishing, equipping, operating, maintaining and demobilizing tr,e
field office.
8.2.15 Reproduction costs, photographs, cost of telegrams, facsimile transmissions, long distance
telephone calls, data processing seNices, postage, express delivery charges, telephone service at
the Worksite and reasonable petty cash expenses at the field office.
8.2.16 All water, power and fuel costs necessary for the Work.
8.2.17 Cost of removal of all non-hazardous substances, debris and waste materials.
8.2.18 Costs incurred due to an emergency affecting the safety of persons and/or property.
8.2.19 Legal, mediation and arbitration fees and costs, other than those arising from disputes
between the Owner and the Design-Builder, reasonably and properly resulting from the
Design-Builder's performance of the Work.
8.2.20 All costs directly incurred in the performance of the Work or in connection with the Project,
and not included in the Design-Builder's Fee as set forth in Article 7, which are reasonably inferable
from the Contract Documents as necessary to produce the intended results.
8.3 DISCOUNTS. All discounts for prompt payment shall accrue to the Owner to the extent such
payments are made directly by the Owner. To the extent payments are made with funds of the
Design-Builder, all cash discounts shall accrue to the Design-Builder. All trade discounts, rebates and
refunds, and all returns from sale of surplus materials and equipment, shall be credited to the Cost of the
Work.
ARTICLE 9
CHANGES IN THE WORK
Changes in the Work which are within the general scope of this Agreement may be accomplished, without
invalidating this Agreement, by Change Order, Work Change Directive, or a minor change in the work,
subject to the limitations stated in the Contract Documents.
9.1 CHANGE ORDER
9.1.1 The Design-Builder may request andlorthe Owner, without invalidating this Agreement, may
order changes in the Work within the general scope of the Contract Documents consisting of
additions, deletions or other revisions to the GMP or the estimated cost of the work, compensation
for Design Phase SeNices, the Design-Builder's Fee and/or the Date of Substantial Completion
and/or the Date of Final Completion being adjusted accordingly. All such changes in the Work shall
be authorized by applicable Change Order, and shall be performed under the applicable conditions of
the Contract Documents.
9.1.2 Each adjustment in the GMP and/or estimated Cost of the Work resulting from a Change
Order shall clearly separate the amount attributable to compensation for Design Phase SeNices,
other Cost of the Work and the Design-Builder's Fee, with the Design-Builder's Fee not to exceed_
fifteen percent (%1,115%). Any credit to the Owner for a change in the work shall be the cost of the
work only.
9.1.3 The Owner and the Design-Builder shalt negotiate in good faith an appropriate adjustment tD
the GMP or the estimated Cost of the WDrk, compensation for Design Phase Services, the
Design-Builder's Fee and/or the Date of Substantial CDmptetion and/or the Date of Final Completion
and shall conclude these negotiatiDns as expeditiDusly as possible. Acceptance Df the Change
Order and any adjustment in the GMP, the estimated Cost Df the Work, compensation for Design
Phase Services, the Design-Builder's Fee and/or the Date of Substantial Comptetion and/or the Date
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DocuBuilder'" . AGC DOCUMENT NO. 410, STANDARD FORM OF DEStGN-BUILD AGREEMENT AND GE,~ERAL CONDITIONS
BETVVEEN OWNER AND DESIGN-BUlLOER (Where the E3Sis of Payment is the Cost of the Work Plus a Fee with a Guarameed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBui\der Contract Document SoftI.N3re.
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of Final Complelion shall not be unreasonably withheld.
9.2 WORK CHANGE DIRECTIVES
9.2.1 The Owner may Issue a written Work Change Directive directing a change in the Work prior to
reaching agreement with the Design-Builder on the adjustment, if any, in the GMP, estimated Cost
of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or the Date of Final
Completion, and if appropriate, the compensation for Design Phase Services.
9.2.2 The Owner and the Design-Builder shall negotiate expeditiously and in good faith for
appropriate adjustments, as applicable, to the GMP, estimated Cost of the Work, the
Design-Builder's Fee, the Date of Substantial Completion andlor the Date of Final Completion, and if
appropnate the compensation for Design Phase Services, arising out of Work Change Directives. As
the changed work is completed, the Design Builder shall submit its costs for such work with its
application for payment beginning with the next application for payment within thirty (30) days of the
issuance of the Work Change Directive. Pending final determination of cost to the Owner, amounts
not in dispute may be included in applications for payment and shall be paid by Owner.
9.2.3 if the Owner and the Design-Builder agree upon the adjustments in the GMP, estimated Cost
of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or the Date of Final
Completion, and if appropriate the compensalion for Design Phase Services, for a change in the
Work directed by a Work Change Directive, such agreement shall be the subject of an appropriate
Change Order. The Change Order shall include all outstanding Change Directives issued since the
last Change Order.
9.3 MINOR CHANGES IN THE WORK
9.3.1 The Design-Builder may make minor changes in the design and construction of the Project
consistent with the intent of the Contract Documents which do not involve an adjustment in the
GMP, estimated Cost of the Work, the Design-Builder's Fee, the Date of Substantial Completion
and/or the Date of Final Completion, and do not materially and adversely affect the design of the
Project, the quality of any of the materials or equipment specified in the Contract Documents, the
performance of any materials, equipment or systems specified in the Contract Documents, or the
quality of workmanship required by the Contract Documents.
9.3.2 The Design-Builder shall promptly inform the Owner in writing of any such changes and shall
record such changes on the Design-Build Documents maintained by the Design-Builder
9.4 UNKNOWN CONDITIONS. If in the performance of the Work the Design-Builder finds latent,
conceated or subsurface physical conditions which materially differ from the conditions the Design-Builder
reasonably anticipated, or if physical conditions are materially different from those normally encountered
and generally recognized as inherent in the kind of work provided for in this Agreement, then the GMP,
estimated Cost of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or the Date
of Final Completion, and if approprrate the compensation for Design Phase Services, shall be equitably
adjusted by Change Order within a reasonable time after the conditions are first obsef\led. The
Design-Builder shall provide the Owner with written notice within the time period set forth In Paragraph 9.6.
9.5 DETERMINATION OF COST
9.5.1 An increase or decrease in the GMP and/or estimated Cost of the Work resulting from a
change in the Work shall be determined by one or more of the follOWing methods:
.1 unit prices set forth in this Agreement or as subsequently agreed;
.2 a mutually accepted, itemized lump sum;
.3 costs determined as defined in Paragraph 7.2 and Article 8 and a mutually acceptable
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DocuBuilder'" . AGC DOCUMENT NO. 410, STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the BaSIS of Paymer,t is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
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Design-Builder's Fee as determined in Subparagraph 7.4.1; or
.4 if an Increase or decrease cannot be agreed to as set forth in Clauses 9.5.1.1 through
9.5.1.3 above, and the Owner issues a Work Change Directive, the cost of the change in the
Work shall be determined by the reasonable actual expense and savings of the performance of
the Work resulting from the change. If there is a net increase in the GMP, the Design-Builder's
Fee shall be adjusted as set forth in Subparagraph 7.4.1. In case of a net decrease in the
GMP, the Design-Builder's Fee shall not be adjusted unless ten percent (10%) or more of the
Project is deleted. The Design-Builder shall maintain a documented, itemized accounting
evidenCing the expenses and savings.
9.5.2 If unit prices are indicated in the Contract Documents or are subsequently agreed to by the
parties, but the character or quantity of such unit items as originally contemplated is so different in a
proposed Change Order that the original unit prices will cause substantial inequity to the Owner or
the Design-Builder, such unit prices shall be equitably adjusted.
9.5.3 If the Owner and the Design-Builder disagree as to whether work required by the Owner is
within the scope of the Work, the Design-Builder shall fumish the Owner with an estimate of the
costs to perform the disputed work in accordance with the Owner's interpretations. If the Owner
issues a written order for the Design-Builder to proceed, the Design-Builder shall perform the
disputed work and the Owner shall pay the Design-Builder fifty percent (50%) of its estimated cost to
perform the work. In such event, both parties reserve their rights as to whether the work was within
the scope of the Work. The Owner's payment does not prejudice its right to be reimbursed should it
be determined that the disputed work was within the scope of Work. The Design-Builder's receipt of
payment for the disputed work does not prejudice its right to receive full payment for the disputed
work should it be determined that the disputed work is not within the scope of the Work.
9.6 CLAIMS FOR ADDITIONAL COST OR TIME. For any claim for an increase in the GMP, estimated
Cost of the Work, the Design-Builder's Fee and the Date of Substantial Completion and/or the Date of
Final Completion, and if appropriate the compensation for Design Phase Services, the Design-Builder shall
give the Owner written notice of the claim within twenty-one (21) days after the occurrence giving rise to
the claim or within twenty-one (21) days after the Design-Builder first recognizes the condition giving rise
to the claim, whichever is later. Except in an emergency, notice shall be given before proceeding with the
Work. Claims for design and estimating costs incurred in connection with possible changes requested by
the Owner, but which do not proceed, shall be made within twenty-one (21) days after the decision is
made not to proceed. Any change in the GMP, estimated Costof the Work, the Design-Builder's Fee, the
Date of Substantial Completion and/or the Date of Final Completion, and if appropriate the compensation
for Design Phase Services, resulting from such claim shall be authorized by Change Order.
9.7 EMERGENCIES. In any emergency affecting the safety of persons and/or property, the
Design-Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the
GMP, estimated Cost of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or
the Date of Final Completion, and if appropriate the compensation for Design Phase Services, on account
of emergency work shall be determined as provided in thiS Article.
9.8 CHANGES IN LAW. In the event any changes in laws or regulations affecting the performance of Ihe
Work are enacted after either the dale of this Agreement or the date a GMP Proposal is accepted by the
Owner and set forth in Amendment NO.1 to this Agreement, whichever occurs later, the GMP, estimated
Cost of the Work, the Design-Builder's Fee, the Date of Substantial Completion and/or the Date of Final
Completion, and if appropriate the compensation for Design Phase Services, shall be equitably adjusted
by Change Order.
ARTICLE 10
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DocuBuilder'" - AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronicai!y under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software
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PAYMENT FOR CONSTRUCTION PHASE SERVICES
10.1 PROGRESS PAYMENTS
10.1.1 On the last day of each month after the Construction Phase has commenced, the
Design-Builder shall submit tD the Owner an applicatiDn for payment cDnslsting Df the CDct Df tho
W~rlo"mod up to lA-e percentage of the work completed up tD the last day Df the month,
including the cost of material suitably stDred on the WDrksite or at Dther IDcatlons apprDved by the
Owner, along with a proportionate share Df the Design-Builder's Fee. Approval Df payment
applications for such stored materials shall be conditlDned upDn submissiDn by the Design-Builder of
bills of sale and applicable insurance or such other prDcedures satisfactory to the Owner to establish
the Owners title to such materials, or otherwise to protect the Owner's interest, including
transportatiDn to the site. Prior to submission of the next application for payment, the Design-Builder
shall furnish tD the Owner a statement accounting for the disbursement of funds received under the
previous application. The extent of such statement shall be as agreed upon between the Owner and
the Design-Builder.
10.1.2 Within ten (10) days after receipt of each monthly application for payment, the Owner shall
give written nDtice to the Design-Builder of the Owner's acceptance or rejection, in whole or in part,
of such application for payment. Within fifteen (15) days after accepting such application, the Owner
shali pay directly to the Design-Builder the appropriate amount fDr which application for payment is
made, less amounts previously paid by the Owner. If such application is rejected in whole or in part,
the Owner shall indicate the reasons fDr its rejection. If the Owner and the Design-Builder cannot
agree on a revised amount then, within fifteen (15) days after its initial rejection in part of such
application, the Owner shall pay directly to the Design-Builder the appropriate amount for those
items not rejected by the Owner for which application for payment is made, less amounts previously
paid by the Owner. ThDse items rejected by the Owner shall be due and payable when the reasons
fDr the rejection have been removed.
10.1.3 If the Owner fails to pay the Design-Builder at the time payment of any amount becomes
due, then the Design-Builder may, at any time thereafter, upon serving written notice that the Work
will be stopped within seven (7) days after receipt of the notice by the Owner, and after such seven
day period, stop the Work until payment of the amount owing has been received.
10.1.4 Payments due but unpaid pursuant to Subparagraph 10.1.2, less any amount retained
pursuant to Paragraphs 10.2 and 10.3 may bear interest from the date payment is due at the prime
rate prevailing at the place of the Project.
10.1.5 The Design-Builder warrants and guarantees that title to all Work, materials and equipment
covered by an application for payment, whether incorporated in the Project or not, will pass to the
Owner upon receipt of such payment by the Des'lgn-Builder, free and clear of all liens, claims,
security interests or encumbrances, hereinafter referred to as liens.
10.1.6 The Owner's progress payment, occupancy or use of the Project, whether in whDle or in part,
shall not be deemed an acceptance Df any Work not conforming to the requirements of the Contract
Documents.
10.1.7 Upon Substanlial CDmpletion of the Work, the Owner shall pay the DeSign-Builder the
unpaid balance of the Cost of the Work, compensation for Design Phase Services and the
Design-Builder's Fee, less one-hundred-fifty percent (150%) Df the cost of completing any unfinished
items as agreed to between the Owner and the Design-Builder as tD extent and time for completion.
The Owner thereafter shall pay the Design-Builder monthly the amount retained for unfinished items
as each item is completed.
10.2 RETAINAGE. From each progress payment made prior to the time Substantial Completion Df the
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DocuBuilder'"' AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GEflERAL CONDITIONS
BETWEEN OWNER AND DESIGN~BUILDER (Where the Basis of Payment is the Cosl of the Work Plus a Fee witl', a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. ThiS document W8S produced electronically under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software.
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Work has been reached, the Owner shall retain five percent (~%), if reqUIred, of the amount otherwise due
after deduction of any amounts as provided in Paragraph 10.3 of this Agreement. If the Owner chooses to
use this retainage provision:
.1 at the time the Work is fifty percent (50%) complete and thereafter, the Owner may choose to
withhold no more retainage and pay the Design-Builder the full amount of what is due on account of
subsequent progress payments;
.2 once each early finishing trade Subcontractor has completed its work and that work has been
accepted by the Owner, the Owner may release final retention on such work;
.3 in lieu of retainage, the Design-Builder may furnish securities, acceptable to the Owner, to be
held by the Owner. The interest on such securities shall accrue to the Design-Builder;
.4 the Owner may, in its sole discretion, reduce the amount to be retained at any time.
10.3 ADJUSTMENT OF DESIGN-BUilDER'S APPLICATION FOR PAYMENT The Owner may adjust or
reject an application for payment or nullify a previousiy approved Design-Builder application for payment,
in whole or in part, as may reasonably be necessary to protect the Owner from loss or damage based
upon the followmg, to the extent that the Design-Builder is responsible under this Agreement:
.1 the Design-Builder's repeated failure to perform the Work as required by the Contract Documents;
.2 loss or damage arising out of or relating to this Agreement and caused by the Design-Builder to
the Owner or Others to whom the Owner may be liable;
.3 the Design-Builder's failure to properly pay the Architect/Engineer, Subcontractors or Material
Suppliers for labor, materials, equipment or supplies furnished in connection with the Work, provided
that the Owner is making payments to the Design-Builder in accordance with the terms of this
Agreement;
.4 Defective Work not corrected in a timely fashion;
.5 reasonable evidence of delay in performance of the Work such that the Work will not be
completed by the Date of Substantial Completion andlor the Date of Final Completion, and that the
unpaid balance of the GMP is not sufficient to offset any direct damages that may be sustained by
the Owner as a result of the anticipated delay caused by the Design-Builder; and
.6 reasonable evidence demonstrating that the unpaid balance of the GMP is insufficient to fund the
cost to complete the Work
The Owner shall give written notice to the Design-Builder at the time of disapproving or nullifying all
or part of an application for payment of the specific reasons. When the above reasons for
disapproving or nullifying an application for payment are removed, payment will be made for the
amount previously withheld.
10.4 OWNER OCCUPANCY OR USE OF COMPLETED OR PARTIALLY COMPLETED WORK
10.4.1 Portions of the Work that are completed or partially completed may be used or occupied by
the Owner when (a) the portion of the Work is designated in a Certificate of Substantial Completion,
(b) appropriate insurer(s) andlor sureties consent to the occupancy or use, and (c) appropriate public
aulhorities authorize the occupancy or use. Such partial occupancy or use shall constitute
Substantial Completion of that portion of the Work. The Design-Builder shall not unreasonably
wilhhold consent to partial occupancy or use. The Owner shall not unreasonably refuse to accept
partial occupancy or use, provided such partial occupancy or use is of value to the Owner.
10.5 FINAL PAYMENT
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BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis ot Payment IS the Cost of the Work Plus a Fee with a Guaranteed t'Aaximum
Price) @ 1 999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
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10.5.1 Final Payment, consisting of the unpaid balance of the Cost of the Work, compensation for
Design Phase Services and the Design-Builder's Fee, shall be due and payable when the work is
fully completed. Before issuance of final payment" the Owner may request satisfactory evidence that
all payrolls, material bills and other indebtedness connected with the Work have been paid or
otherwise satisfied.
10,5.2 In making final payment the Owner waives all claims except for:
.1 outstanding liens;
.2 improper workmanship or defective materials appearing within one year after the Date of
Substantial Completion;
.3 work not in conformance with the Contract Documents; and
.4 terms of any special warranties required by the Contract Documents.
10,5.3 In accepting final payment, the Design-Builder waives all claims except those previously
made in writing and which remain unsettled.
ARTICLE 11
INDEMNITY, INSURANCE, BONDS, AND WAIVER OF SUBROGATION
11.1 INDEMNITY
11.1.1 To the fullest extent permitted by law, the Design-Builder shall defend, indemnify and hold
harmless the Owner, Owner's officers, directors, members, consultants, agents and employees from
all claims for bodily injury and property damage (other than to the Work itself and other property
required to be insured under Paragraph 11.5 owned by or in the custody of the Owner ), that may
arise from the performance of the Work, to the extent of the negligence attributed to such acts or
omissions by the Design-Builder, Subcontractors or anyone employed directly or indirectly by any of
them or by anyone for whose acts any of them may be liable. The Design-Builder shall not be
required to defend, indemnify or hold harmless the Owner, Owner's officers, directors, members,
consultants, agents and employees for any acts, omissions or negligence of the Owner, the Owner's
officers, directors, members, consultants, employees, agents or separate contractors.
11.1.2 To Ihe fullest extent permitted by law, the Owner shall defend, indemnify and hold harmless
the Design-Builder, its officers, directors or members, Subcontractors or anyone employed directly or
indirectly by any of them or anyone for whose acts any of them may be liable from all claims for
bodily injury and property damage, other than property insured under Paragraph 11.5, that may arise
from the performance of work by Others, to the extent of the negligence attributed to such acts or
omissions by Others.
11.2 DESIGN-BUILDER'S LIABILITY INSURANCE
11.2.1 The Design-Builder shall obtain and maintain insurance coverage for the following claims
which may arise out of the performance of this Agreement, whether resulting from the
Design-Bui\der's operations or from the operations of any Subcontractor, anyone in the employ af
any of them, or by an individual or entity for whose acts they may be liable:
.1 workers compensation, disability and other employee benefit claims under acts applicable
to the Work;
.2 under applicable employers liability law, bodily injury, occupational Sickness, disease or
death claims of the Design-Builder's employees;
.3 bodily injury, sickness, disease or death claims for damages to persons not employed by
24
DocuBuilder'" . AGC DOCUMENT NO. 410' STANDARD FORM OF DESIGN~BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus 3 Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. ThiS document was produced electronic3l1y under the
grant of license provided to subscnbers of the AGe OOCuBullder Contract Document Sofuvare.
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the Design-Builder:
.4 personal injury liability claims for damages directly or Indirectly related to the persons
employment by the Design-Builder or for damages to any other person;
.5 claims for physical injury to tangible property, including all resulting loss of use of that
property, to property other than the Work itself and property insured under Paragraph 11.5:
.6 bodily inJury, death or property damage claims resulting from motor vehicle liability in the
use, maintenance or ownership of any motor vehicle; and
.7 contractual liability claims involving the Design-Builder's obligations under Subparagraph
11.1.1.
11.2.2 The Design-Builder's Commercial General and Automobile Liability Insurance as required by
Subparagraph 11.2.1 shall be written for not less than the following limits of liability:
.1 Commercial General Liability Insurance
a. Each Occurrence Limit $5,000,000
b. General Aggregate $5,000,000
c. Products/Completed Operations Aggregate $5,000,000
d. Personal and Advertising Injury Limit $5,000,000
.2 Comprehensive Automobile Liability Insurance
a. Combined Single Limit Bodily Injury and Property Damage
$5,000,000 Each Occurrence
b. Bodily Injury
$n/a Each Person
$n/a Each Occurrence
c. Property Damage
$n/a Each Occurrence
11.2.3 Commercial General Liability Insurance may be arranged under a single policy for the full
limits required or by a combination of underlying policies and an Excess or Umbrella Liability policy.
11.2.4 The policies shall contain a provision that coverage will not be canceled or not renewed until
at least thirty (30) days prior written notice has been given to the Owner. Certificates of Insurance
showing required coverage to be in force shall be filed with the Owner prior to commencement of the
Work.
11.2.5 Products and Completed Operations insurance shall be maintained for a minimum period of
at least two year(s) after either final payment or Substantial Completion ninoty (DO) do,';; f81lowlo,g
tho Doto of, whichever is earlier.
11.3 PROFESSIONAL LIABILITY INSURANCE. The Design-Builder shall obtain, either itself or through
the Architect/Engineer, professional liability insurance for claims arising from the negligent performance of
professional services unde~ this Agreement, which shall be:
General Office Coverage
Projoct "pocific Profossionol Li3bility InsurcJnco
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DocuBuilde(fM. AGe DOCUMENT NO 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price)@ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Saftvvare.
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(Exclude one of the above),
written for not less than $5,000,000 per claim and in the aggregate with a deductible not to exceed
$25,000, The Professional Liability Insurance shall include prior acts coverage sufficient to cover all
services rendered by the Architect/Engineer, This coverage shall be continued in effect for two year(s)
after the Date of Substantial Completion,
11 A OWNER'S LIABILITY INSURANCE The Owner shall be responsible for obtaining and maintaining its
own liability insurance, Insurance for claims arising out of the performance of this Agreement may be
purchased and maintained at the Owner's discretion, The Owner shall provide the Design-Builder with a
certificate of insurance at the request of the Design-Builder,
11,5 INSURANCE TO PROTECT PROJECT
11,5,1 The Owner Design-Builder shali obtain and maintain All Risk Builders Risk insurance-iR-tr-
fo'm accoptable to the Design Buildor~ upon the entire Project for the full cost of replacement at the
time of any loss, This insurance shall include as namo" i"""rode tho Ownor, the Design Buildor, tho
,^,rchitocU..nginoor, Subcontractors, Motoria' Sup~liors and Subeubcontcoctors additionally insureds
the Owner and the Architect/Engineer, This insurance shall include all risk insurance for physical
loss or damage including without duplication of coverage at least: theft, vandalism, malicious
mischief, transit, materiais stored off site, collapse, falsework, temporary buildings, debris removal,
flood, earthquake, testing, and damage resulting from defective design, workmanship or material.
The Owner shall increase limits of coverage, if necessary, to reflect estimated replacement cost
The insurance policy shall be written without a co-insurance clause, The Owner shall be solely
responsible for any deductible amounts,
11.5,2 If the Owner occupies or uses a portion of the Project prior to its Substantial Completion,
such occupancy or use shall not commence prior to a time mutually agreed to by the Owner and the
Design-Builder, Permission for partial occupancy from the insurance company shall be included as
standard in the property insurance policy, to ensure that this insurance shall not be canceled or
lapsed on account of partial occupancy, Consent of the Design-Builder to such early occupancy or
use shall not be unreasonably withheld,
11.5,3 The Owner shall obtain and maintain boiler and machinery insurance as necessary, The
interests of the Owner, the Design-Builder, the Architect/Engineer, Subcontractors, Material
Suppliers and Subsubcontractors shall be protected under this coverage,
11,5A The Owner shall purchase and maintain insurance to protect the Owner, the Design-Builder,
the Architect/Engineer, Subcontractors, Material Suppliers and Subsubcontractors against loss of
use of the Owner's property due to those perils insured pursuant to Paragraph 11 S Such policy will
provide coverage for expediting expenses of materials, continuing overhead of the Owner and the
Design-Builder, the ArchItect/Engineer, Subcontractors, Material Suppliers and Subsubcontractors,
necessary labor expense including overtime, loss of income by the Owner and other determined
exposures, Exposures of the Owner, the Design-Builder, Ihe Architect/Engineer, Subcontractors and
Subsubcontractors, shall be determined by mutual agreement with separate lImits of coverage fixed
for each item,
11,5,5 The Owner shall provide the Design-Builder with a copy of all property insurance policies
before an exposure to loss may occur. Copies of any subsequent endorsements shall be fumished
to the Design-Builder, The DeSIgn-Builder shall be given thirty (30) days notice of cancellation,
non-renewal, or any endorsements restricting or reducing coverage. The Owner shall give written
notice to the Design-Builder before commencement of the Work if the Owner will not be obtaining
property insurance. In that case, the Design-Builder may obtain insurance in order to protect Its
interest in the Work as well as the interest of the Architect/Engineer, Subcontractor.s, Material
SupplIers and Subsubcontractors In the Work, The cost of this insurance shall be a Cost of the
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DocuBuiIder'M . AGe DOCUMENT NO. 410 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETvVEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, nle Associated Genera! Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe OocuBuilder Contract Document Software
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Work pursuant to Article 8, and the GMP shall be increased by Change Order, If the Design-Builder
is damaged by the failure of the Owner to purchase or maintain property insurance or to so notify the
Design-Builder, the Owner shall bear all reasonable costs incurred by the Design-Builder arising
from the damage,
11.5.6 The Owner shall have the right to self-insure against the risks covered in Subparagraphs
11.5.1 and 11.5.4 upon providing evidence satisfactory to the Design-Builder of the ability to so
self-insure.
11.6 PROPERTY INSURANCE LOSS I>-DJUSTMENT
11.6.1 Any insured loss shalt be adjusted with the Owner and the Design-Builder and made payable
to the Owner and Design-Builder as trustees for the insureds, as their interests may appear, subject
to any applicable mortgagee clause.
11.6.2 Upon the occurrence of an insured loss, monies received will be deposited in a separate
account and the trustees shall make distribution in accordance with the agreement of the parties in
interest, or in the absence of such agreement, in accordance with a dispute resolution award
pursuant to Article 13. If the trustees are unable to agree between themselves on the settlement of
the loss, such dispute shall also be submitted for resolution pursuant to Article 13.
11.7 WAIVER OF SUBROGATION
11.7.1 The OWrler and the Desigrl-Builder waive all rights against each other, the
Architect/Engineer, and any of their respective employees, agents, consultants, Subcontractors,
Material Suppliers and Subsubcontractors for damages covered by the insurance provided pursuant
to Paragraph 11.5 to the extent they are covered by that insurance, except such rights as they may
have to the proceeds of such insurance held by the Owner and the Design-Builder as trustees, The
Design-Builder shall require similar waivers from the Architect/Engineer and all Subcontractors, and
shall require each of them to include similar waivers in their subsubcontracts and consulting
agreements.
11.7.2 The Owner waives subrogation against the Design-Builder, the Architect/Engineer,
Subcontractors, Material Suppliers and Subsubcontractors on all property and consequential loss
policies carried by the Owner on adjacent properties and under property and consequential loss
policies purchased for the Project after its completion.
11.7.3 The policies shall also be endorsed to state that the carrier waives any right of subrogation
against the Design-Builder, the Architect/Engineer, Subcontractors, Material Suppliers, or
Subsubcontractors.
11.8 MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES The Owner and the Design-Builder agree to
waive all claims against the other for all consequential damages that may arise out of or relate to this
Agreement. The Owner agrees to waive damages including but not limited to the Owner's loss of use of
the Property, all rental expenses incurred, loss of services of employees, or loss of reputation. The
Design-Builder agrees to waive damages including but not limited to the loss of business, loss of
financing, prinCipal office overhead and profits, loss of profits not related to this Project, or loss of
reputation, This paragraph shall not be construed to preclude cOrltractual provisions for liquidated
damages when such provisions relate to direct damages only, The provisiorls of this paragraph shall
govern the termination of thiS Agreement and shall survive such termination.
11.9 BONDING
11,9,1 Performarlce and Payment Bonds
are
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DccuBuilder"" AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GE,NERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment [s the Cost of the Work Plus a Fee Wtth a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document W2.S produced electronically under the
grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.
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are not
(Exclude one of the above).
required of the Design-Builder. Such bonds shall be issued by a surety licensed in the state of the
location of the Project and must be acceptable to the Owner.
11.0.2 Such .oerfomlance Bond shall be iseuod in Ihe pon::ll sum aqu::l1 to ene hundrod forcont
(100~!o) of tRe
GMP (if thero is no CrAP, then tho "groed octirmted coet cf tho Projast, including dosign and
6OO-&lruction).
agreed estlmatod construction coet of the Projoct.
(EJCclude one of tho ::lbo'/o).
Such Performanco Bond sholl co'.'er the 80St to complete tho Work, but sholl not cover any
damagos of tho typo spocified to be covocod by tho inGumnco pursuant to P"mgr3ph 11.2. ond
Paragmph 11.3, whother or not such insurance ie provided Dr is in on amount Gufficiefl4e-68VBf-
such damages.
11.9.3 The ponol sum of the P::lyment Bond sho'l o~LJol the pona', SUfF of tra Porformance Elond.
ARTICLE 12
SUSPENSION AND TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT
TO PERFORM DESIGN-BUILDER'S RESPONSIBILITIES
12..1 SUSPENSION BY THE OWNER FOR CONVENIENCE
12..1.1 The Owner may order the Design-Builder in writing to suspend, delay or interrupt all or any
part of the Work without cause for such period of time as the Owner may determine to be
appropriate for its convenience.
12..1.2 Adjustments caused by suspension, delay or interruption shall be made for increases in the
GMP, compensation for Design Phase Services, the Design-Builder's Fee and/or the Date of
Substantial Com pie lion and/or the Date of Final Completion. No adjustment shall be made if the
Design-Builder IS or otherwise would have been responsible for the suspension, delay or interruption
of the Work, or if another provision of this Agreement is applied to render an equitable adjustment.
12..2 OWNER'S RIGHT TO PERFORM DESIGN-BUilDER'S OBLIGATIONS AND TERMINATION BY
THE OWNER FOR CAUSE
12.2.1 If the DeSign-Builder persistently fails 10 perform any of its obligations under this Agreement,
the Owner may, after five (5) days' written notice, during which period the Design-Builder faiis to
perform such obligation, undertake to perform such obligations. The GMP shall be reduced by lhe
cost to the Owner of performing such obligations.
12.2.2 Upon an additional five (5) days' written notice to the Design-Builder and the Design-Builder's
surety, if any, the Owner may terminate thiS Agreemenl for any of the following reasons:
.1 If the Design-Builder persistently utilizes improper materials andlor inadequately skilled
workers;
.2 if the Design-Builder does not make proper payment to laborers, Matenal Suppliers or
Subcontractors, provided lhat the Owner is making payments to the Design-Builder in
accordance with the terms of thiS Agreement;
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DocuBuilder'"' AGC DOCUMEN, NO. 410, STANDARD FOR~I OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETVVEEN OWNER AND OESIGN~BU1LDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuiJder Contract Document Software.
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.3 if the Design-Builder persistently fails to abide by the orders, regulations, rules, ordinances
or laws of governmental authorities having jurisdiction; or
.4 if the Design-Builder otherwise materially breaches this Agreement.
If the Design-Builder fails to cure or commence and continue to cure within the five (5) days,
the Owner, without prejudice to any other right or remedy, may take possession of the
Worksite and complete the Work utilizing any reasonable means. In this event, the
Design-Builder shall not have a right to further payment until the Work is completed.
12.2.3 If the Design-Builder files a petition under the Bankruptcy Code, this Agreement shall
terminate if the Design-Builder or the Design-Builder's trustee rejects the Agreement or, if there has
been a default, the Design-Builder is unable to give adequate assurance that the Design-Builder will
perform as required by this Agreement or otherwise is unable to comply with the requirements for
assuming this Agreement under the applicable provisions of the Bankruptcy Code.
12.2.4 In the event the Owner exercises its rights under Subparagraph 12.2.1 or 12.2.2, upon the
request of the Design-Builder the Owner shall provide a detailed accounting of the cost incurred by
the Owner.
12.3 TERMINATION BY OWNER WITHOUT CAUSE If the Owner terminates this Agreement other than
as set forth in Paragraph 12.2, the Owner shall pay the Design-Builder for all Work executed and for all
proven loss, cost or expense in connection with the Work, plus all demobilization costs. In addition, the
Design-Builder shall be paid an amount calculated as set forth below:
.1 If the Owner terminates this Agreement prior to commencement of the Construction Phase, the
Design-Builder shall be paid for the Design-Builder's Design Phase services provided to date as set
forth in Subparagraph 7.1.2 and 7.1.3, and a premium as set forth below:
(Insert here the amount agreed to by the parties) Plus a fee of four percent (4%) of the total
estimated project budget or GMP, whichever is the greater.
.2 If the Owner terminates this Agreement after commencement of the Construction Phase, the
Design-Builder shall be paid for the Construction Phase Services provided to date pursuant to
Subparagraph 7.2.1 and a premium as set forth below:
(Insert here the amount agreed to by the parties) Plus a fee of eight percent (8%) for the entire
GMP, as amended at the time of termination.
.3 The Owner shall also pay to the Design-Builder fair compensation, either by purchase or rental at
the election of the Owner, for all equipment retained. The Owner shall assume and become liable for
obligations, commitments and unsettled claims that the Design-Builder has previously undertaken or
incurred in good faith in connection with the Work or as a result of the termination of this Agreement.
As a condition of receiving the payments provided under this Article 12, the Design-Builder shall
cooperate with the Owner by taking all steps necessary to accomplish the legal assignment of the
Design-Builder's rights and benefits to the Owner, including the execution and delivery of required
papers.
12.4 TERMINATION BY THE DESIGN-BUILDER
12.4.1 Upon five (5) days' written notice to the Owner, the Design-Builder may terminate this
Agreement for any of the following reasons:
.1 if the Work has been stopped for a sixty (60) day period
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DocuBuilder'" . AGC DOCUMENT NO. 410, STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed MaXimum
Price) @ 1999, The Associated General Contractors of America. All fights reserved. This document was produced electronicaily under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software
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a. under court order or order of other governmental authorities having Jurisdiction; or
b. as a result of the declaration of a national emergency or other governmental act
during which, through no act or fault of the Design-Builder, materials are not avaitable;
.2 if the Work IS suspended by the Owner for sixty (60) consecutive days;
.3 if the Owner fails to furnish reasonable evidence that sufficient funds are available and
committed for the entire cost of the Project in accordance w',th Subparagraph 4.1.3 of this
Agreement
12.4.2 tf the Owner has for thirty (30) days failed to pay the Design-Builder pursuant to
Subparagraph 10.1.2, the Des'lgn-Builder may give written notice of its intent to terminate this
Agreement. If the Design-Buitder does not receive payment within five (5) days of giving written
notice to the Owner, then upon five (5) days' additional written notice to the Owner, the
Design-Builder may terminate this Agreement.
12.4.3 Upon termination by the Design-Builder in accordance with this Subparagraph, the
Design-Builder shall be entitled to recover from the Owner payment for all Work executed and for all
proven loss, cost or expense in connection with the Work, plus all demobilization costs and
reasonable damages. tn addition, the Design-Builder shall be paid an amount calculated as set forth
either In Subparagraph 12.3.1 or 12.3.2, depending on when the termination occurs, and
Subparagraph 12.3.3.
ARTICLE 13
DISPUTE RESOLUTION
13.1 WORK CONTINUANCE AND PAYMENT Unless otherwise agreed in writing, the Design-Builder
shall continue the Work and maintain the approved schedutes during all dispute resolution proceedings. If
the Design-Builder continues to perform, the Owner shall continue to make payments in accordance with
the Agreement.
13.2 I~IITIJ\L DISPUTE RESOLUTION. If a 8isp~te arisos out of or rolates to this ,^,greoment or its
broach, tho ~artles shall endeavor to cettlo tho dispute lirst thraugh ,hect d;,ccus,o'Gns. If the dispute
cannot be settlod throu~ diroct discussions, tho parties sho!! endoavor to sottle the dispute by modiation
undGr tho Conctruct;,on tnd'dele; Modiation Rules of tho Nnorican hrbitration Association beforo recourse
le-the disputo rosolution procedures contained In this ,A,greoment The location of the modiation sholl bo
tho loootion of tho Projeot Onoe one party files 0 requost for modiation with tho othor contracting party
and with the ,^.mericon ,^,rbitrotion ~,ssociation, the parties agroo to ooncludo suoh ",odiotion 'Idhin, e;,)(ly
(60) days of filing of the roquest. Eithor party mal' terminato the modiatiE>R-af- ar,y time of tor tho first
ses&iGFl,-OOt tho decision to l€rminote m'dct be do!','Jored in porson \31' tho porty'e representativo to tho
ether party's reprosentativo and the medbtor. See Exhibit # 5.
~EXHIBIT NO.1. if tho dispute-Gannot be sottled b)' modiation within sl"t)' f&G+4ays,tho partios shJ!1
submit the dicputo to ;:my d:cputo rosolu\;on proccee col forth in Exhibit NO.1 to ~
13.4 MULTIPARTY PROCEEDiNG. The parties agree thaI all parties necessary to resolve a claim shall
be parties to the same dispute resolution proceeding. Appropriate provisions shall be included in all other
contracts relating to the Work to provide for the consoiidation of such dispute resolution proceedings
13.5 COST OF DISPUTE RESOLUTION. The prevailing party in any dispute arising out of or relating to
this Agreement or its breach that is resolved by the dispute resolution process set forth in Exhibit No. + J5.
to this Agreement shall be entitled to recover from the other party those reasonable attorneys' fees, costs
and expenses incurred by the prevailing party in connection with such dispute resolution process after
direct discussions and mediation.
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DocuBuilder'" . AGe DOCUMENT NO. 410, STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maxlmt;m
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscr:bers of the AGe DocuBuilder Contract Document Software.
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13.6 LIEN RIGHTS. Nothing in this Article shall limit any rights or remedies not expressly waived by the
Design-Builder which the Design-Buitder may have under lien laws.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 ASSIGNMENT Neither the Owner nor the Design-Builder shall assign its interest in this Agreement
without the written consent of the other except as to the assignment of proceeds. The terms and
conditions of this Agreement shall be binding upon both parties, their partners, successors, assigns and
legal representatives. Neither party to this Agreement shall assign the Agreement as a whole without
written consent of the other except that the Owner may assign the Agreement to a wholly-owned
subsidiary of the Owner when the Owner has fully indemnified the Design-Builder or to an institutional
lender providing construction financing for the Project as long as the assignment is no less favorable to
the Design-Builder than this Agreement. In the event of such assignment, the Design-Builder shall
execute all consents reasonably required. In such event, the wholly-owned subsidiary or lender shall
assume the Owner's rights and obligations under the Contract Documents. If either party attempts to
make such an assignment, that party shall nevertheless remain legally responsible for all obligations
under the Agreement, unless otherwise agreed by the other party.
14.2 GOVERNING LAW This Agreement shall be governed by the law in effect at the location of the
Project.
14.3 SEVERABILITY The partial or complete invalidity of anyone or more provisions of this Agreement
shall not affect the validity or continuing force and effect of any other provision.
14.4 NO WAIVER OF PERFORMANCE The failure of either party to insist, in anyone or more
instances, on the performance of any of the terms, covenants, or conditions of this Agreement, or to
exercise any of its rights, shall not be construed as a waiver or relinquishment of such term, covenant,
condition or right with respect to further performance.
14.5 TITLES AND GROUPINGS The titles given to the articles of this Agreement are for ease of
reference only and shall not be relied upon or cited for any other purpose. The grouping of the articles in
this Agreement and of the Owner's specifications under the various headings is solely for the purpose of
convenient organization and in no event shall the grouping of provisions, the use of paragraphs or the use
of headings be construed to limit or alter the meaning of any provisions.
14.6 JOINT DRAFTING The parties to this Agreement expressly agree that this Agreement was jointly
drafted, and that both had opportunity to negotiate its terms and to obtain the assistance of counsel in
reviewing its terms prior to execution. Therefore, this Agreement shall be construed neither against nor in
favor of either party, but shall be construed in a neutral manner.
14.7 RIGHTS AND REMEDIES The parties rights, liabilities, responsibilities and remedies with respect
to this Agreement, whether in contract, tort, negligence or otherwise, shall be exclusively those expressly
set forth in this Agreement.
14.8 OTHER PROVISIONS
14.8.1 Shared Savings
If the cost of work plus the Desiqn-Builder's fee is less than the GMP including all approved change
orders, the shared savinos will be split fifty (50%) to the owner and fiftv (50%) to the Design-Builder.
ARTICLE 15
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DocuBuilder"" AGC DOCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BET\lVEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price)@ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuilder Contract Document Software.
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EXISTING CONTRACT DOCUMENTS
The Contract Documents in existence at the time of execution of this Agreement are as follows:
As defined in Subparagraph 2.4.1, the following Exhibits are a part of this Agreement:
EXHIBIT NO.1 Disp8tO Rosolution Monu, ana page. INTENTIONAllY OMITTED
EXHIBIT NO.2 -Agreomont oct:Jbl'ehing !':Jet trock oppro:J6R Other Considerations and. Schodulo
el-tho Worl" pagos. Services, one page
EXHIBIT NO.3 labor Ro!ations provisions, pogos. Design-Builder's Design-Phase Compensation
Design Phase Services, one page.
EXHIBIT NO.4 Design-Builder's Home Office and Field Personnel Hourly Billing Rates, one page
EXHIBIT NO.5 Final Dispute Resolution, one page
~~m"7!i:t;~'""
-<-41<)
OWNER: l ~ Wo dall
PRINT NAME I Er UJ:x;dc.- L ( /
PRINT TITLE: Wcrxl",,) L 's: C:JL &~
,
DATE OF SIGNATURES: /r'// k? /0 Z
ATIE" AA<<Y:r:!tjgr,~
::,:2:~~j~~............
'--"
PRINT TITLE: Executive Vice President
DATE OF SIGNATURE:
/b-Z'g -62.--
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DoouBuilder'" . AGC DOCUMENT NO. 410, STANDARO FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically unde, the
grant of license provided to subscribers of tile AGC DocuBuiJder Contract Document Software.
.
.
EXHIBIT 2
OTHER CONSIDER<\TIONS AND SERVICES
The Design-Builder shall be reimbursed by the O\VTIer for additional costs incurred due to labor
disputes. 111e Owner and Design-Builder agree that the term "Labor Dispute", as used
throughout the Contract Documents, does not include picketing by a labor organization or entity
which represents employees of the Design-Builder. These additional costs shall include but not
be limIted to: attorney's fees, security, court costs, labor, material, equipment, etc., and any costs
associated with said delay, m obtaining and enforcing an injunction to gain access to the sIte for
the employees of Design-Builder and subcontractors. The Design-Builder shall be responsible to
coordinate and assist in the resolution of said occurrence. These additional costs are not a part of
the guaranteed pnce.
AGe DOCtJMENTNO. 41U
Exhibit 2
HORST CONSTRUCTION COMPANY
Lee & T:lmra Woodall
August, 2002
,.,1",1
.
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EXHIBIT 3
DESIGN-BUfLDER'S DESIGN-PHASE COMPENSATION
DESIGN PHASE SERVICES
[ Cost Control Procedures HOURS
A. Computerized Estimate and Revisions
1. Schematic Estimate 48
2. Guaranteed Maximum Price 74
B. Design Review
1. Structural & Design interference 8
2. Mechanical and Electrical interference 8
3. Constructibihty Issues 69
a. Incompatible and inconsistent design elements
b. Prevent cost in-effective construction methods
c. Labor and material availability of components
d. Future maintenance concerns
e. Limit the number of unique elements in a design
f. Limit the number of trades required.
g. Review the safety requirements
h. Standardize components to extent possible
t. Review design tolerances
J. Site and equipment accessibility review
k. Regulatory agency comphance:
Safety, BUllding Codes, ADA, Pernlit Process
C. Architectural Services (Subcontract Agreement with Cornerstone Design)
D. Site Engineering Services
II
Scheduling Procedures
A. Pre-Construction Schedule
4
m
Client Meetings
32
Subtotal Hours....................................................... .......254
The Guaranteed Maximum Price for Design Phase Services Shall be Sixty Five Thousand Eie:htv Nine Dollars
($65,089.00).
The actual cost ofthis service shall consist of hours incurred by the Design-Builder's personnel as per the
attached rate structure (Exhibit "4"), plus cost of any materials and subcontract work for site lTIvestigations and
on-site testing as may be performed, plus other miscellaneous costs. To this total cost the Design-Builder's Fee
of eight percent (80/\1) will be apphed
AGe DOCUMENT ~O. 41()
E.thihit 3
HORST CONSTRUCTION COMPANY
Lee & Tamr::! \-Vnod:lll
All~lISt 2002
'.
," -{
.
.
EXHIBIT 4
DESIGN-BUILDER'S
HOME OFFICE AND FIELD PERSONNEL HOURL Y BILLING RATES
PERSONNEL
HOURL y RATE
Project Executlve*
Sr. Project Manager*
Project Manager*
Estimator*
Scheduler*
General Superintendent*
Project Coordinator*
Field Superintendent*
Safety Manager
Project Foreman
Carpenter Foreman
Carpenter
Project Clerk
Laborer
$90001Hour
$80.00IHour
$75.00IHour
$65.001H0ur
$65.00IHour
$65.00IHour
$57.00fHour
$50.00IHour
$40.00fHour
$45.001H0ur
$35.00IHour
$33.00fHour
$26.00IHour
$24.00IHour
Note: All hourly rates are exclusive of Design-Builder's Fee of (8%) and are based on a 40-hour
workweek at straight time normal work hours.
Rates do not include overtime. For overtime, multiply rates by 1.5. Any employee's time will be
considered overtime if one of the following criteria is met:
When work on all projects exceeds 40 hours per week. This project will be
charged overtime for any work over 8 hours per day or
Work on project exceeds 10 hours per day
Saturday work, if total work on all projects exceeds 40 hours per week
All Sunday work
* Time will be considered overtime on these employees only if hours exceed 40 hours on this specific
project.
Rates do not lI1clude second or third shift different131. To calculate a rate for second shift multiply
rates by 1.1. To calculate a rate for third shift multiply rates by 1.2.
Appropriate supervisor as determined by Design-Builder may be required for overtime and shift
work and the supervisor rates would be c3.lculated as llbove.
All above hourly rates wIll increase 4~';, per year 011 October I.
Rates do not include vVorker's Compensation.
AGe DOCLi\'lENT NO. 4]0
[,dlihi! 4
HORST COi\lSTHUCTION COMPANY
Lc~ & Ta lllra \"'ood:.lll
August, 2002
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EXHIBIT 5
13.2 DISPUTE RESOLUTION
.
If a dispute arises out of or relates to this Agreement or its breach, the pm11es shall
endeavor to settle the dispute first through conciliation. If the dispute cannot be settled
through conciliation, the parties shaIl endeavor to settle the dispute arising from or related
to this agreement by mediation and if necessary, legaIly binding arbitration in accordance
with the Rule of Procedure for Christian Conciliation of the Institute for Christian
Conciliation, a division of Peacemaker Ministries (complex text of the Rules is available
a www.HisPeace.org). Judgment upon an arbitration decision may be entered in any
court otherwise having jurisdiction. The pa11ies understand that these methods shaIl be
the sole remedy for any controversy or claim arising out of this agreement and expressly
waive their right to file a lawsuit in any civil court against one another for such disputes,
except to enforce an arbitration decision. The location of the mediation shaIl be the
location of the Project. Once one party files a request for mediation with the other
contracting party and with the Administrator, the parties agree to conclude such
mediation within sixty (60) days offiling of the request.
Ace DOCUME\T NO. .flU
Exllihit 5
HORST CON~TRlICT]OI\ COl\ll'ANY
LL'l' & Tamra \\'oodall
".ugllst.2002
THE ASSC .ED GENERAL CONTRACTOR. AMERICA
SKI L t
INTEGRITY
AMENDMENT NO.1 TO AGC DOCUMENT NO. 410
STANDARD FORM OF DESIGN.BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER
(Where the Basis of Payment is the Cost of the Work Plus a Fee with a
Guaranteed Maximum Price)
Pursuant to Paragraph 3.2 of the Agreement dated October 10, 2002 between the Owner, Lee Woodall
and the Design-Builder, Horst Construction Company for Woodall Car Wash (the Project), the Owner and
the Design-Builder desire to establish a Guaranteed Maximum Price (GMP) for the Work, Therefore, the
Owner and the Design-Builder agree as follows:
ARTICLE 1
GUARANTEED MAXIMUM PRICE
The Design-Builder's GMP for the Work, including the Cost of the Work as defined in Article 8 and the
Design-Builder's Fee as set forth in Paragraph 7.3, IS Nine Hundred Seventy-Four Thousand Five Hundred
Eight Dollars ($ 974,508.00).
The GMp is for the performance of the Work in accordance with the documents listed below, which are
part of the Agreement.
APPENDIX 12. - Drawings and Specifications, including Addenda, if any, dated April 16, 2003,2
pages.
APPENDIX ~ - Allowance Items, dated, April 16, 003, 1 pages.
APPENDIX f - Assumptions and Clarifications, dated April 16, 2003, 1 pages.
APPENDIX Q - Schedule of Work, dated August 7, 2003,.l pages
APPENDIX ~ - Aiternate Prices, dated April 16, 2003,!.. pages.
APPENDIX.E. - Unit Prices, dated April 16, 2003,.l pages
APPENDIX.Q. - Additional Services included, dated April 16, 2003, !.. pages.
APPENDIX
, dated
pages.
ARTICLE 2
DATE OF SUBSTANTIAL COMPLETION
1
DocuBuilder@ '~GC DOCUMENT NO. 410. STANDARD FORM OF DESiGN-BUILD AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the \!\Iork Plus a Fee with a Guaranteed Maximum
Price)@1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the
grant of license provided to subscribers of the AGe DocuBuiider Contract Documenl Software
IWoodal1 Carwash
.
2120514
.
,il.ugust, 2003~
The Date of Substantial Completion of the Work is Uc" rtA';;' 2 tJtJ? .
ARTICLE 3
DATE OF FINAL COMPLETION
The Date of Final Completion of the Work isi4r~LA /:!ii2(J1)? or within
( 99 ) days after the Date of Substantial Completion, subject to adjustments as
provided for In the Contract Documents.
This Amendment is entered into as of
q)iiMwvj . '/I /
ATTC3~. ...I!/!.!;/V}'.'..".I.....U~c,,<1~. Sit/t5
::::~~, '''3
/
PRINT TITLE: #e9~1.'''A)-)
,
ATTEST .4l-!,~f:~.f(.Jr.-!~0J Fi 1/ D3
DESIGN,BUILDER, f/~~T t;v..V sTRttC7l2'/V:
BY... .~M4.4'd[.41:d.4.r..((,.L. .r'1i1'::,..
PRINT NAME: 1../7' ~., .)/ """" r, rI
PRINT TITLE:
ZxiCC. 11':,0,
2
DocuBullder@' AGC DDCUMENT NO. 410. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITiONS
BET'vVE::::N OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with 2 Guaranteed Maximum
Price) @ 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under tr,e
grant of license provided to subscribers of the ,A.GC OocuBuilder Conr.ract Document Softvvare
.
.
APPENDIX "A"
Drawinqs & Soecifications
April 16, 2003
1. Land Development Plan prepared by Hoover Engineering Services, Inc.
1 of 6 Cover Sheet Dated 4/18/03
2 of 6 Existing Features Plan Dated 4/18/03
3 of 6 Site and Utility Plan Dated 4118103
4 of 6 Grading and Drainage Plan Dated 4/18/03
5 of 6 Erosion and Sedimentation Plan Dated 4/18/03
6 of 6 Profiles and Misc. Details Dated 4/18/03
2. Architectural Drawir1gs prepared by ComerstOr1e Design Architects
A 1.1 Floor Plan Dated 2/10/03
A2.1 Exterior Elevations Dated 2/10103
A4.1 Building Section Dated 2/10/03
A42 Building Section Dated 2/10/03
AGe DOCl:I\'IENY NO. 4]0, Amendment 1
h.xhibit A
HORST C:ONSTRUCTJON COIYIl'A.NY
Woodall Car Wash
<\pl"i12[1()]
P:1~e 1 ul" 2
.
.
APPENDIX "A"
Drawinqs & Specifications
April 16, 2003
Scope:
Project management
Project supervision
Architectural design
Site engineering
Building permits
Insurances
Temporary site construction
Final cleaning
Excavation, backfill, and grading
Pen dot Highway Occupancy Permit and improvements
Utilities: water, sewer, electric, and gas connections
Landscaping
Paving and line painting
Site sign
Concrete - building footings, slab on grade, and curbs & walks
Masonry - including Astra-glazed colored tile package
Metal fabrications
Carpentry - wood roof truss assembly, interior trims, interior casework, and misc.
carpentry
Insulation - attic
Shingle roofing and aluminum exterior trim
Caulking and sealants
Doors, frames, and hardware
FRP doors and frames in wash tunnel
Aluminum storefront entrances
Overhead coiling doors
Vinyl windows
Metal studs and drywall
Acoustical ceiling tiles - in corridor, toilets, reception, and office area
FRP wall and ceiling covering in wash tunnel
VeT flooring in corridor, toilets, reception, and office area
Painting
Toilet accessories
Canvas awning
Fire extinguishers and cabinets
Piumbing
H.VAC. - gas fired furnaces with air conditioning
Electrical - building and site
AGe DOCUMENT NO. 410, Amcndlllcnt J
n.xhibit A
BORST CONSTRUCTlON COMPANY
Wootlall Cnr Wash
.\pri1200J
l':lge?oJ'2
.
APPENDIX "8"
Allowances
April 16, 2003
1. Landscaping - Labor and material to prepare and
seed lawn area along with plantings up to ..............
2. Water service including tap-in and meter pit.......
3. PA Highway Occupancy Permit and Improvements..
AGe nOCUi\lE?\IT NO, 410, AllItlHJrnellt )
Exl1ibit 13
.
$7,000.00
$6,400.00
$6,000.00
J-101~ST CONST1;:.UCTION COIVII'Ar",'l
\Vooliall Car \\'a.\11
April lOO]
Page lor I
.
.
APPENDIX "C"
Assumptions & Clarifications
April 16, 2003
1. We do not include supplying or installation of the carwash equipment.
2. We do not include the tap-in or the EDU costs for sanitary sewer.
3. We include the additional cost for the Astra-Glazed tile package for the
exterior.
4. Signage: We included one (1) double-sided HED 1-70 custom radius top,
illuminated sign as supplied by Fastsigns, and signage for the handicap
restroom. We do not include any other site signs or menu boards.
5. We do not include rock removal. Should rock be encountered, it will be
handled as a Contract Change Order.
AGe DOCUMENT ~o. 410, Amenument 1
Exhibit C
HORST CONSTRUCTION CO,V!P"\NY
\\'oodall Car W:lsb
April20U3
Page 1 of 1
.
APPENDIX "0"
Schedule of Work
August 7, 2003
1. Preliminary Construction schedule dated 8/7/03.
AGe IJOCLrviENT NO. 410, AmcnJmcnt 1
Exhibit ])
.
HonST CONSTRUCTION COJVII'A.'\'Y
\\'()odall Car \V:lsh
August 2n03
r'agc I 01"1
.
.
APPENDIX "E"
Alternate Prices
April 16, 2003
There were no alternate prices established at the time of the GMP,
AGe DOCUMENT .r~'O, 410, An1l.'w.1mclltl
Exhihit E
HORST COI\lSTRUCTION CO/\IPANY
\Voodalf Car \Vasll
April ZOU3
l'agclofl
.
.
APPENDIX "F"
Unit Prices
April 16, 2003
Rock- Mechanical Bulk and Trench.....
Blasted Bulk........
Blasted trench. ..
.......$180.00 per cubic yard
...... $18.00 per cubic yard
.......$48.00 per cubic yard
AGe OOCU1VIENT NO. 410, Amendment 1
Exhibit F
HORST CONSTIWCTION COiVll'ANY
y\'oodJII C:lr \V:.Jsb
Apri12003
!lagelof1
.
.
APPENDIX "G"
Additional Services
There were no additional services established at the time of the GMP.
AGe DOCUMENT NO. 410, Amendment I
E:\hibit G
HORST CONSTRUCTION CO~'VIPANY
\Vood::1I1 CDr \V;lsh
April20D]
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RECEIPT FOR PAYMENT
-------------------
-------------------
Cumberland County Prothonotary's Office
Carlisle, Pa 17013
Receipt Date
Recelpt Time
Recelpt No.
9/23/2005
15:54:13
169035
HORST CONSTRUCTION COMPANY (VS) WOODALL LEE
Case Number 2005-05016
Received of PD HARMON & DAVIES
IM
Total Non-Cash..... +
Total Cash......... +
Change............. -
Receipt total...... ~
55.50
.00
.00
55.50
Check#
25221 25248
------------------------ Distribution Of Payment ----------------------------
Transaction Description Payment Amount
COMPLAINT
TAX ON CMPLT
SETTLEMENT
AUTOMATION
JCP FEE
35.00
.50
5.00
5.00
10.00
CUMBERLAND CO GENERAL FUND
BUREAU OF RECEIPTS AND CONTROL
CUMBERLAND CO GENERAL FUND
CUMBERLAND CO AUTOMATION FUND
BUREAU OF RECEIPTS AND CONTROL
55.50
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2005-05016 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HORST CONSTRUCTION COMPANY
VS
WOODALL LEE
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
/ to wit:
WOODALL LEE
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of CHESTER
County, Pennsylvania, to
serve the within COMPLAINT REINSTATED
On December 6th, 2005 , this office was in receipt of the
attached return from CHESTER
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Chester County
Postage
18.00
9.00
10.00
35.05
.74
72.79
12/06/2005
HARMON & DAVIES
So answers ;.__
, )
~.A'~/ ..-~~ ._ t.rr--:::;'.-
R. Thomas Kline /
Sheriff of Cumberland
.---
County
Sworn and subscribed to before me
this 'l11?
day of ;,au~.L.
c2 ,/
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A"t~
Pi'otho, . ry
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Please mail return of service to Cumberland County Sheriff. Thank you.
In The Court of Common Pleas of Cumberland County, Pennsylvania
Horst Construction Ccmpany
YS.
Lee Woodall
No. 05- 5016 civil
Now,
November 7, 2005
, I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of
Chester
County to execute this Writ, this
r'<:'
deputation being made at the request and risk of the Plaintiff. ~~~
.r:~~~r~
I
Sheriff of Cumberland County, PA w .'
Affidavit of Service
U1
rv
Now, NOJen1 blf EO-th , 20~, at r 3S- o'clock P
within NOf;(e. t.l.111 Cow.f/~"/711 reinskk,R
upon Lee Woo j elll - (Je f:-
at 15/:).. W, nJOI'le1!. 12001 f+pt.#,3cD vJaJ Ch~kr, jJ4-
by handing to Lee VJoo2,J/- Def.
M. served the
1'1.]90
a
-
I ru. e
copy of the original
;Joke ().I'~ Ce.",-tJ/4"Af
.
and made known to
h ; .v..
the contents thereof.
NOTARIAL SEAL
Rebecca S. Yepremian, Notary Public
West Chester Bom., Chester County
My commission expires August 6, lOOg
.-
So answers, .:J
-----Jj
~o,
-- .
1.tl{/11w
ei1L.d?r
II
County, P A
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
Sworn and SUbscrib~fore
me this ~ day of <::...
--
, 20 De..
--:Rl~ em. :2\~~Q ~
$
..
HARMON & DAVIES, Pc.
ATIORNEYS-AT-LAW
2306 COLUMBIA A VENUE
LANCASTER. PA 17603
ORIGINAL
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
Plaintiff
vs,
LEE WOODALL
Defendant
No, 05-5016
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a true and correct copy of the foregoing
10 Day Important Notice upon the persons and in the manner indicated below, which
service satisfies the requirements ofPa, RC.P. No. 440:
Service by First Class Mail
Addressed as Follows:
MR. LEE WOODALL
941 Monterey Drive
Mechanicsburg, P A 17050
HARMON & DAVIES, p,c.
2306 Columbia Avenue
Lancaster, P A 17603
Telephone: (717) 291-2236
i~/( /),-,-
Thomas R, Davies, 1.0, # 35260
Attorneys for Plaintiff,
Horst Construction Company
By:
~
HARMON & DAVIES, p,c.
ATTORNEYS-AT.LAW
2)06 COLUMBlA A. V&"lliE
LANCASTER, PA 17603
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
Plaintiff
vs.
No. 05-5016
LEE WOODALL
Defendant
TO: DEFENDANT, LEE WOODALL
941 Monterey Drive
Mechanicsburg, P A 17050
DATE OF NOTICE: DECEMBER 22, 2005
IMPORTANT NOTICE
YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING
WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET
FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE
DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU
WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER
IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMA nON ABOUT HIRING A LAWYER.
.
HARMON & DAVIES, p,c.
AITORNEYS.AT-lA.W
2306 COLUMBIA AVENUE
LANCASTER, PA [7603
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013-3302
Telephone: 717-249-3166
HARMON & DAVIES, p,c.
2306 Columbia Avenue
Lancaster,PA 17603
Telephone: (717) 291-2236
By: ,~.{ ~"-
Thomas R, Davies, LD, # 35260
Attorneys for Plaintiff,
Horst Construction Company
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HARMON & DAVIES, p,c.
AITORSEYS.AT-LAW
2306 COLUMBIA A VENUE
LANCASTER, PA ]7603
I
I
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It
II
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
Plaintiff
vs,
No, 05-5016
LEE WOODALL
Defendant
CERTIFICATE OF SERVICE
1 hereby certify that I am this day serving a true and correct copy of the foregoing
10 Day Important Notice upon the persons and in the manner indicated below, which
service satisfies the requirements ofPa, R,C.P, No, 440:
Service by First Class Mail
Addressed as Follows:
LEE WOODALL
1512 Windmere Road
Apt. #305
West Chester, P A 19380
I 250
HARMON & DAVIES, p,c.
2306 Columbia Avenue
Lancaster, P A 17603
Telephone: (717) 291-2236
----:;z 1 /-}
~//,,/ '~~'k
By: l/ / , ,./ "----
Thomas R, Davies, 1.0, # 35260
Attorneys for Plaintiff,
Horst Construction Company
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HARMON & DAVIES. P,C
ArroR.\'EYS-AT-LAW
2306 COLUMB1A AVENUE
LANCASTER, P A 17603
II
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
Plaintiff
vs.
No. 05-5016
LEE WOODALL
Defendant
PRAECIPE FOR ENTRY OF JUDGMENT BY DEFAULT
TO THE PROTHONOTARY:
Kindly enter judgment by default in favor of Plaintiff, Horst Construction
Company, and against Defendant, Lee Woodall, for failure to plead to the Complaint in the
above-captioned matter pursuant to Pa.R.C.P. Nos. 1037(b) and 237.1 as follows:
Judgment Amount
Interest at 6% Per Annum
From 8-16-03 to 12-16-05 ($596.41 x 16 mos.)
From 12-16-05 to Date of Final Payment
Interest at 1% per Month (73 P.S. 9 501, et seq.)
From 8-16-03 to 12-16-05 ($1,192.82 x 16 mos.)
From 12-16-05 to Date of Final Payment
Penalties at 1 % per Month (73 P .S. S 501, et seq)
From 8-16-03 to 12-16-05 ($1,192.82 x 16 mos.)
From 12-16-05 to Date of Final Payment
$119,282.00
$9,542.56
TBD
$19,085.12
TBD
$19,085.12
TBD
HARMON & DAVIES, P,c.
AITORNEYS>AT-LAW
2306 COLUMBIA A VENUE
LANCASTER. PA 1760)
'I
- -T
Attorneys' Fees (73 P.S. S SOl, et seq) and Costs of Suit
From 9-1-04 to 1-3-06
From 1-3-06 to Date of Final Payment
$3,268.50
TBD
TOTAL JUDGMENT AMOUNT: $170,263.33 Plus
Interest, Penalties, Attorneys' Fees and Costs
from 12-16-05 to Date of Final Payment
I hereby do certifY that a written notice of intention to file this Praecipe was mailed
to the Defendant, after Defendant's failure to plead to the Complaint, and at least ten days
prior to the date of the filing of this Praecipe, a true and correct copy of which is attached
hereto.
Date:
/- ( (ob
HARMON & DAVIES, P.C.
2306 Columbia A venue
Lancaster, P A 17603
Telephone: (717) 291-2236
~~A'iu--
Thomas R. Davies, LD. # 35260
Attorneys for Plaintiff,
Horst Construction Company
By:
Date:-.J~) I:). ;).,N'Jf,..
t
LA~? CO~~Y PROTHONOTARY
/I
GCB:C:\Documents and SettingS\Owner\My Documents\Clients\Horst Construction Co\Woodall Carwash 0404\Praecipe for Entry of Judgment by Defaullwpd
!-t.i.RMON & DAV1ES, P,C
AITOIl'lEYS.AT-LAW
2306 COLUMBL<\ AVENUE
LANCASTER. PA 17603
!I
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II
FILE
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
Plaintiff
Ys.
No. 05-5016
LEE WOODALL
Defendant
TO: DEFENDANT, LEE WOODALL
1512 Windmere Road
Apt. #305
West Chester, PA 19380
DATE OF NOTICE: DECEMBER 30, 2005
IMPORTANT NOTICE
YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING
WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET
FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DA YS FROM THE
DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU
WITHOUT A HEARING AND YOU MA Y LOSE YOUR PROPERTY OR OTHER
IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS NOnCE TO A LA WYER AT ONCE. IF YOU DO
NOT HAVE ALA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMA nON ABOUT HIRING A LAWYER,
I
,I
HARMO~ & DAVIES, Pc.
i\11'OR."fEYS-AT.LAW
23\)6 COLUMBIA AVEN1n~
LANCASTER, PA. \Itin
IF YOU CANNOT AFFORD TO HIRE ALA WYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013-3302
Telephone: 717-249-3166
HARMON & DAVIES, P.e.
2306 Columbia A venue
Lancaster, P A 17603
Telephone: (717) 291-2236
~/l,P~
Thomas R. Davies, I.D. # 35260
Attorneys for Plaintiff,
Horst Construction Company
By:
HARMON & DAVIES, p,c.
ATTORNEYS.AT-LAW
2306 COLUMBIA A VEr>.'UE
LANCA.S1ER, PA 17603
II
1-
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
HORST CONSTRUCTION COMPANY
Plaintiff
vs,
No, 05-5016
LEE WOODALL
Defendant
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a true and correct copy of the foregoing
Praecipe For Entry of Judgment By Default upon the persons and in the manner indicated
below, which service satisfies the requirements of Pa, Kc'P, No, 440:
Service by First Class Mail
Addressed as Follows:
LEE WOODALL
1512 Windmere Road
Apt #305
West Chester, PA 19380
HARMON & DAVIES, p,c.
2306 Columbia A venue
Lancaster, P A 17603
Telephone: (7 J 7) 291-2236
BY:~/{~-
Thomas R, Davies, LD, # 35260
Attorneys for Plaintiff,
Horst Construction Company
CCB:C:\Documents and Settings\Owner\My Documenls\Clients\Horst Construction Co\Woodall Cal'\oVash 0404\Certificale of Service_wpd
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