|ATHENEX, INC. filed this Form 10-Q on 05/09/2019|
AIA® Document A141™ – 2014 Exhibit A Design-Build Amendment
This Amendment is incorporated into the accompanying AIA Document A141™–2014, Standard Form of Agreement Between Owner and Design-Builder dated the 29th of December 2017 (the “Agreement”). The effective date of this Exhibit A Amendment (“Third Amendment”) is the 23rd day of January in the year 2019.
(In words, indicate day, month and year.)
for the following PROJECT:
(Name and location or address)
Athenex Dunkirk Plant Project, for Athenex, Inc. Manufacturing Facility located in
(Name, legal status and address)
Athenex, Inc. ("Athenex")
1001 Main Street, Suite 600
Buffalo, New York 14203
(Name, legal status and address)
Exyte U.S., Inc. ("Exyte” f/k/a M+W U.S. Inc.)
1001 Klein Road, Suite 400
Plano, Texas 75074
Design-Builder’s Architect (“Architect” or “Subconsultant”) is:
523 Plymouth Road
Plymouth Meeting, PA 19462
WHEREAS, Owner and Design-Builder entered into that certain Agreement on or about December 29, 2017;
WHEREAS, Owner and Design-Builder entered into the First Amendment to the Agreement, dated effective March 27, 2018 (“First Amendment”);
WHEREAS, Owner and Design-Builder entered into the Second Amendment to the Agreement (“Second Amendment”), dated effective October 1, 2018;
WHEREAS, Owner and Design-Builder desire to amend the Agreement by entering into this Exhibit A (as referenced in the Agreement) Third Amendment to the Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Owner and Design-Builder hereby amend the Agreement as follows.
A.1 CONTRACT SUM
A.2 CONTRACT TIME
A.3 INFORMATION UPON WHICH THIRD AMENDMENT IS BASED
A.4 DESIGN-BUILDER’S PERSONNEL, CONTRACTORS AND SUPPLIERS
A.5 COST OF THE WORK
ARTICLE A.1 CONTRACT SUM
§ A.1.1 The Owner shall pay the Design-Builder the Contract Sum in current funds for the Design-Builder’s performance of the Contract after the execution of this Third Amendment.
(Check the appropriate box.)
[ ] Stipulated Sum, in accordance with Section A.1.2 below
[ ] Cost of the Work plus the Design-Builder’s Fee, in accordance with Section A.1.3 below
[ XX ] Cost of the Work plus the Design-Builder’s Fee with a Guaranteed Maximum Price, in accordance with Section A.1.4 below
(Based on the selection above, complete Section A.1.2, A.1.3 or A.1.4 below.)
§ A.1.2 Not used.
§ A.1.3 Not used.
§ A.1.4 Cost of the Work Plus Design-Builder’s Fee With a Guaranteed Maximum Price
§ A.1.4.1 The Cost of the Work is as defined in Article A.5, Cost of the Work.
§ A.1.4.2 The Design-Builder’s Fee: 2.5% of Cost of Work
(State a lump sum, percentage of Cost of the Work or other provision for determining the Design-Builder’s Fee and the method for adjustment to the Fee for changes in the Work.)
The Design-Builder’s Fee shall be 2.5% of the Cost of Work.
§ A.1.4.3 Guaranteed Maximum Price
§ A.18.104.22.168The sum of the Cost of the Work, the Design-Builder’s Fee, and Pike’s Fee (defined below) is guaranteed by the Design-Builder not to exceed Two hundred twelve million, five hundred ninety four thousand, eight hundred six dollars ($ 212,594,806 ), subject to additions and deductions for changes in the Work as provided in the Design-Build Documents. Costs that would cause the Guaranteed Maximum Price (“GMP”) to be exceeded shall be paid by the Design-Builder without reimbursement by the Owner.
(Insert specific provisions if the Design-Builder is to participate in any savings.)
Design-Builder is entitled to shared savings based on the final Contract cost including Fee (“Final Cost”), being delivered under $212,594,806. If the Final Cost of the Project is less than $ 212,594,806, then Design-Builder shall be entitled to the first $150,000 (one-hundred and fifty thousand dollars) of the total savings. Thereafter, Design-Builder shall be compensated in a shared savings value, which shall equal Forty Percent (40%) of the difference between the Final Cost and $ 212,444,806 (GMP - $150,000 = $212,444,806).
§ A.22.214.171.124 Itemized Statement of the Guaranteed Maximum Price
Provided below is an itemized statement of the Guaranteed Maximum Price organized by trade categories, allowances, contingencies, alternates, the Design-Builder’s Fee, and other items that comprise the Guaranteed Maximum Price.
See Exyte Cost Breakdown of Guaranteed Maximum Price, including Design-Builder's fee, attached hereto as EXHIBIT 1.
The Guaranteed Maximum Price is based on the total dollar value of the Project and shall not be considered a line-item GMP. For the avoidance of doubt, Design-Builder is striving to ensure that that Project’s overall Final Cost is delivered at or under the GMP amount; however, Design-Builder is not guaranteeing to meet any particular line-item amount. As such, Design-Builder shall have the authority to reallocate funds within the GMP value as necessary, without increasing the GMP budget.
§ A.126.96.36.199 The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the Design-Build Documents and are hereby accepted by the Owner:
(State the numbers or other identification of accepted alternates. If the Owner is permitted to accept other alternates subsequent to the execution of this Third Amendment, attach a schedule of such other alternates showing the change in the Cost of the Work and Guaranteed Maximum Price for each and the deadline by which the alternate must be accepted.)
§ A.188.8.131.52 Unit Prices, if any:
(Identify item, state the unit price, and state any applicable quantity limitations.)
§ A.184.108.40.206 Assumptions, if any, on which the Guaranteed Maximum Price is based:
GMP is based on Phase 1 area only, including equipment lists and User Requirements Specification Number 5, dated February 20, 2018.
The Parties hereto understand and agree that if deferred scope is added back into the Project, then a Change Order, increasing the GMP cost and Contract Time , shall be issued to address all additional scope changes, in accordance with § 6.2 and 8.2 of the Agreement.
§ A.1.5 Payments
§ A.1.5.1 Progress Payments
§ A.220.127.116.11Based upon Applications for Payment submitted to the Owner by the Design-Builder, the Owner shall make progress payments on account of the Contract Sum to the Design-Builder as provided below and elsewhere in the Design-Build Documents.
§ A.18.104.22.168The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows:
§ A.22.214.171.124Provided that an Application for Payment is received not later than the 30TH day of the month, the Owner shall make payment of the certified and undisputed amount to the Design-Builder not later than the 30TH day of the subsequent month. Timely payment is a material term to this Agreement. Exyte also recognizes that Project funding is being provided to Athenex by the State of New York. Amounts remaining unpaid sixty (60) days after certified and undisputed invoiced amounts are received by Athenex from Exyte shall bear interest at the rate of 1.5% per month on the unpaid balance. Exyte acknowledges that approval of the New York State Empire State Development Corporation is required under this Contract prior to payment. Said approval shall not be unreasonably withheld. Exyte further acknowledges its responsibility to provide appropriate documentation required by the New York State Empire Development Corporation, including, but not limited to, all required payment application forms and MWBE information/certifications.
(Federal, state or local laws may require payment within a certain period of time.)
§ A.126.96.36.199With each Application for Payment where the Contract Sum is based upon the Cost of the Work, or the Cost of the Work with a Guaranteed Maximum Price, the Design-Builder shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner to demonstrate that cash disbursements already made by the Design-Builder on account of the Cost of the Work equal or exceed (1) progress payments already received by the Design-Builder, less (2) that portion of those payments attributable to the Design-Builder’s Fee; plus (3) payrolls for the period covered by the present Application for Payment.
§ A.188.8.131.52With each Application for Payment where the Contract Sum is based upon a Stipulated Sum or Cost of the Work with a Guaranteed Maximum Price, the Design-Builder shall submit the most recent schedule of values in accordance with the Design-Build Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. Compensation for design services, if any, shall be shown separately. Where the Contract Sum is based on the Cost of the Work with a Guaranteed Maximum Price, the Design-Builder’s Fee shall be shown separately. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule of values, unless objected to by the Owner, shall be used as a basis for reviewing the Design-Builder’s Applications for Payment.
§ A.184.108.40.206In taking action on the Design-Builder’s Applications for Payment, the Owner shall be entitled to rely on the accuracy and completeness of the information furnished by the Design-Builder and shall not be deemed to have made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Sections A.220.127.116.11 or A.18.104.22.168, or other supporting data; to have made exhaustive or continuous on-site inspections; or to have made examinations to ascertain how or for what purposes the Design-Builder has used amounts previously paid. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner’s auditors acting in the sole interest of the Owner.
§ A.22.214.171.124 Except with the Owner’s prior approval, the Design-Builder shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site.
§ A.1.5.2 Not used.
§ A.1.5.3 Not used.
§ A.1.5.4 Progress Payments—Cost of the Work Plus a Fee with a Guaranteed Maximum Price
§ A.126.96.36.199 Applications for Payment where the Contract Sum is based upon the Cost of the Work Plus a Fee with a Guaranteed Maximum Price shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the Design-Builder on account of that portion of the Work for which the Design-Builder has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.
§ A.188.8.131.52Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows:
.1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 6.3.9 of the Agreement.
.2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing;
.3 Add the Design-Builder’s Fee, less retainage of ten percent ( 10 %). The Design-Builder’s Fee shall be computed upon the Cost of the Work at the rate stated in Section A.1.4.2 or, if the Design-Builder’s Fee is stated as a fixed sum in that Section, shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work bears to a reasonable estimate of the probable Cost of the Work upon its completion;
.4 Unless noted otherwise in the individual subcontract(s) or purchase order(s), the subtract retainage of ten percent ( 10 %) from that portion of the Work that the Design-Builder self-performs;
.5 Subtract the aggregate of previous payments made by the Owner;
.6 Subtract the shortfall, if any, indicated by the Design-Builder in the documentation required by Section A.184.108.40.206 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner’s auditors in such documentation; and
.7 Subtract amounts, if any, for which the Owner has withheld or nullified a payment as provided in Section 9.5 of the Agreement.
§ A.220.127.116.11 The Owner and Design-Builder shall agree upon (1) a mutually acceptable procedure for review and approval of payments to the Architect, Consultants, and Contractors and (2) the percentage of retainage held on agreements with the Architect, Consultants, and Contractors; and the Design-Builder shall execute agreements in accordance with those terms.
§ A.18.104.22.168 The Owner agrees that Design-Builder’s subcontractor, The Pike Company (“Pike”) is entitled to a fee (“Pike’s Fee”) based on Pike’s management of the Civil/Structural and Architectural scopes of Work (“Pike’s Scope”). Pike’s fee is a Not to Exceed amount of $1,350,000 M USD (one million three-hundred and fifty thousand dollars), and is itemized in the GMP breakdown sheet in Exhibit 1, dated March 1, 2019. The Parties agree that Pike’s Fee as stated herein is separate and in addition to the consultant management fee in an amount not to exceed $3,061,360 as referenced in § 4.1 of Design Builder’s subcontract with Pike dated December 12, 2018. The Parties hereto further understand and agree that Pike’s Fee is separate and independent from Design-Builder’s Fee. Design-Builder shall compensate Pike for Pike’s Fee, provided however, that Owner shall pay Design-Builder for the full amount of Pike’s Fee, and such amount paid by the Owner shall equal the amount that Design-Builder pays for Pike’s Scope of services.
§ A.1.5.5 Final Payment
§ A.22.214.171.124 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Design-Builder not later than 30 days after the Design-Builder has fully performed the Contract and the requirements of Section 9.10 of the Agreement have been satisfied, except for the Design-Builder’s responsibility to correct non-conforming Work discovered after final payment or to satisfy other requirements, if any, which extend beyond final payment.
§ A.126.96.36.199 If the Contract Sum is based on the Cost of the Work, the Owner’s auditors will review and report in writing on the Design-Builder’s final accounting within 30 days after the Design-Builder delivers the final accounting to the Owner. Based upon the Cost of the Work the Owner’s auditors report to be substantiated by the Design-Builder’s final accounting, and provided the other conditions of Section 9.10 of the Agreement have been met, the Owner will, within seven days after receipt of the written report of the Owner’s auditors, either issue a final Certificate for Payment, or notify the Design-Builder in writing of the reasons for withholding a certificate as provided in Section 9.5.1 of the Agreement.
ARTICLE A.2 CONTRACT TIME
§ A.2.1 Contract Time, as defined in the Agreement at Section 1.4.13, is the period of time, including authorized adjustments, for Substantial Completion of the Work.
§ A.2.2 The Design-Builder shall achieve Substantial Completion of the Work not later than: January 31, 2020.
(Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. If appropriate, insert requirements for earlier Substantial Completion of certain portions of the Work.)
, subject to adjustments of the Contract Time as provided in the Design-Build Documents. The Parties acknowledge and agree that all references to the Substantial Completion Date in the Contract, the First Amendment, the Second Amendment, and/or all Contract exhibits, attachments, or related documents shall be removed, replaced, and updated with the Substantial Completion Date stated herein.
(Insert provisions, if any, for liquidated damages relating to failure to achieve Substantial Completion on time or for bonus payments for early completion of the Work.)
Parties have agreed to Liquidated Damages as defined in Section 14.1.7 in the A141-2017 Agreement Between Owner and Design Builder with the Effective Date of December 29, 2017 and as superseded by the First Amendment, with a First Amendment with an Effective Date of March 27, 2018.
The Liquidated Damages, as agreed by the First Amendment, start February 1, 2020.
ARTICLE A.3 INFORMATION UPON WHICH THIRD AMENDMENT IS BASED
§ A.3.1 The Contract Sum and Contract Time set forth in this Third Amendment are based on the following:
See Attachment 1 for summary of the Contract Sum; See Attachment 2 for summary of the Contract Time.
§ A.3.1.1 The Supplementary and other Conditions of the Contract:
§ A.3.1.2 The Specifications:
(Either list the specifications here or refer to an exhibit attached to this Third Amendment.)
See Exhibit 2
§ A.3.1.3 The Drawings:
(Either list the drawings here or refer to an exhibit attached to this Third Amendment.)
See Exhibit 3
§ A.3.1.4The Sustainability Plan, if any: - NOT USED.
(If the Owner identified a Sustainable Objective in the Owner’s Criteria, identify the document or documents that comprise the Sustainability Plan by title, date and number of pages, and include other identifying information. The Sustainability Plan identifies and describes the Sustainable Objective; the targeted Sustainable Measures; implementation strategies selected to achieve the Sustainable Measures; the Owner’s and Design-Builder’s roles and responsibilities associated with achieving the Sustainable Measures; the specific details about design reviews, testing or metrics to verify achievement of each Sustainable Measure; and the Sustainability Documentation required for the Project, as those terms are defined in Exhibit C to the Agreement.)
Other identifying information
§ A.3.1.5 Allowances and Contingencies:
(Identify any agreed upon allowances and contingencies, including a statement of their basis.)
Allowances, also identified as “Yet to Buy” costs, for various Scopes of Work are shown by work package or division. See Exhibit 1 (dated March 1, 2019).
Contingency is identified in Exhibit 1 (dated March 1, 2019)and is intended to be used by Design-Build Contractor as required to support project execution.
§ A.3.1.6 Design-Builder’s assumptions and clarifications:
Client will be responsible for Commissioning of all building systems for both validated and non-validated systems. Commission, Qualification and Validation (CQV) requirements for all validated systems have not been provided to the design-build contractor and efforts to support those requirements are not included in this GMP . Client agrees that assembly, execution and acceptance of all documentation and turn-over packages required to support commissioning efforts are within their scope. Design-Build contractor will provide labor, via subcontractors, to support execution of the clients commissioning efforts for non-validated systems.
§ A.3.1.7 Deviations from the Owner’s Criteria as adjusted by a Modification:
There are no known deviations from the Owner’s Criteria at this time, however several late changes have been excluded (see Exhibit 3, referred to as “Deferred Scope Drawings”) or identified to be covered under contingency (see Exhibit 1, dated March 1, 2019). Drawings and Specifications have been generated and reviewed with the Owner and all Owner questions or concerns have been addressed and are accepted by all parties. Drawing list and pricing back-up identify deferred scope and applicable price reductions. Credit for areas and equipment removed from the scope are incorporated into this GMP.
§ A.3.1.8 To the extent the Design-Builder shall be required to submit any additional Submittals to the Owner for review, indicate any such submissions below:
ARTICLE A.4 DESIGN-BUILDER’S PERSONNEL, CONTRACTORS AND SUPPLIERS
§ A.4.1 The Design-Builder’s key personnel are identified below:
(Identify name, title and contact information.)
.2 Project Manager
Lee Ogle – Project Director
§ A.4.2 The Design-Builder shall retain the following Consultants, Contractors and suppliers, identified below:
(List name, discipline, address and other information.)
Design-Builder’s Architect (“Architect”) is:
523 Plymouth Road
Plymouth Meeting, PA 19462
Ryan Biggs/Clark Davis Engineering and Surveying P.C.
257 Ushers Road
Clifton Park, NY 12065
Clark Patterson Lee
205 St. Paul Street, Suite 500
Rochester, NY 14604
The Pike Company, Inc.
One Circle Street
Rochester, NY 14607
ARTICLE A.5 COST OF THE WORK
§ A.5.1 Cost To Be Reimbursed as Part of the Contract
§ A.5.1.1 Labor Costs
§ A.188.8.131.52 Wages of construction workers directly employed by the Design-Builder to perform the construction of the Work at the site or, with the Owner's prior approval, at off-site offices or workshops.
§ A.184.108.40.206 With the Owner’s prior approval, wages or salaries of the Design-Builder's supervisory and administrative personnel when stationed at the site.
(If it is intended that the wages or salaries of certain personnel stationed at the Design-Builder's principal or other offices shall be included in the Cost of the Work, identify below the personnel to be included, whether for all or only part of their time, and the rates at which their time will be charged to the Work.)
§ A.220.127.116.11 Wages and salaries of the Design-Builder's supervisory or administrative personnel engaged at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. Annual rate increases for staffing will be provided in the 2nd Quarter of each year and incorporated into the billable rates previously provided. Any rate increases shall not increase the project GMP Cost.
§ A.18.104.22.168 Costs paid or incurred by the Design-Builder for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Section A.5.1.1.
§ A.22.214.171.124 Not used.
§ A.5.1.2 Contract Costs. Payments made by the Design-Builder to the Architect, Consultants, Contractors and suppliers in accordance with the requirements of their subcontracts.
§ A.5.1.3 Costs of Materials and Equipment Incorporated in the Completed Construction
§ A.126.96.36.199 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction.
§ A.188.8.131.52 Costs of materials described in the preceding Section A.184.108.40.206 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the Owner's property at the completion of the Work or, at the Owner's option, shall be sold by the Design-Builder. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work.
§ A.5.1.4 Costs of Other Materials and Equipment, Temporary Facilities and Related Items
§ A.220.127.116.11 Costs of transportation, storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Design-Builder at the site and fully consumed in the performance of the Work. Costs of materials, supplies, temporary facilities, machinery, equipment and tools that are not fully consumed shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site. Costs for items not fully consumed by the Design-Builder shall mean fair market value.
§ A.18.104.22.168 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Design-Builder at the site and costs of transportation, installation, minor repairs, dismantling and removal. The total rental cost of any Design-Builder-owned item may not exceed the purchase price of any comparable item. Rates of Design-Builder-owned equipment and quantities of equipment shall be subject to the Owner's prior approval.
§ A.22.214.171.124 Costs of removal of debris from the site of the Work and its proper and legal disposal.
§ A.126.96.36.199 Costs of document reproductions, electronic communications, postage and parcel delivery charges, dedicated data and communications services, teleconferences, Project websites, extranets and reasonable petty cash expenses of the site office.
§ A.188.8.131.52 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, with the Owner's prior approval.
§ A.5.1.5 Miscellaneous Costs
§ A.184.108.40.206 Premiums for that portion of insurance and bonds required by the Design-Build Documents that can be directly attributed to the Contract. With the Owner's prior approval self-insurance for either full or partial amounts of the coverages required by the Design-Build Documents.
§ A.220.127.116.11 Sales, use or similar taxes imposed by a governmental authority that are related to the Work and for which the Design-Builder is liable.
§ A.18.104.22.168 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Design-Builder is required by the Design-Build Documents to pay.
§ A.22.214.171.124 Fees of laboratories for tests required by the Design-Build Documents, except those related to defective or nonconforming Work for which reimbursement is excluded by Section 15.5.3 of the Agreement or by other provisions of the Design-Build Documents, and which do not fall within the scope of Section A.126.96.36.199.
§ A.188.8.131.52 Royalties and license fees paid for the use of a particular design, process or product required by the Design-Build Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Design-Build Documents; and payments made in accordance with legal judgments against the Design-Builder resulting from such suits or claims and payments of settlements made with the Owner's consent. However, such costs of legal defenses, judgments and settlements shall not be included in the calculation of the Design-Builder's Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are excluded by the second to last sentence of Section 184.108.40.206 of the Agreement or other provisions of the Design-Build Documents, then they shall not be included in the Cost of the Work.
§ A.220.127.116.11 With the Owner's prior approval, costs for electronic equipment and software directly related to the Work
§ A.18.104.22.168.Deposits lost for causes other than the Design-Builder's negligence or failure to fulfill a specific responsibility in the Design-Build Documents.
§ A.22.214.171.124 With the Owner's prior approval, which shall not be unreasonably withheld, legal, mediation and arbitration costs, including attorneys' fees, other than those arising from disputes between the Owner and Design-Builder, reasonably incurred by the Design-Builder after the execution of the Agreement and in the performance of the Work.
§ A.126.96.36.199 With the Owner’s prior approval, expenses incurred in accordance with the Design-Builder's standard written personnel policy for relocation, and temporary living allowances of, the Design-Builder's personnel required for the Work.
§ A.188.8.131.52 That portion of the reasonable expenses of the Design-Builder's supervisory or administrative personnel incurred while traveling in discharge of duties connected with the Work.
§ A.5.1.6 Other Costs and Emergencies
§ A.184.108.40.206 Other costs incurred in the performance of the Work if, and to the extent, approved in advance in writing by the Owner.
§ A.220.127.116.11 Costs incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property.
§ A.18.104.22.168 Costs of repairing or correcting damaged or nonconforming Work executed by the Design-Builder, Contractors or suppliers, provided that such damaged or nonconforming Work was not caused by negligence or failure to fulfill a specific responsibility of the Design-Builder and only to the extent that the cost of repair or correction is not recovered by the Design-Builder from insurance, sureties, Contractors, suppliers, or others.
§ A.5.1.7 Related Party Transactions
§ A.22.214.171.124 For purposes of Section A.5.1.7, the term “related party” shall mean a parent, subsidiary, affiliate or other entity having common ownership or management with the Design-Builder; any entity in which any stockholder in, or management employee of, the Design-Builder owns any interest in excess of ten percent in the aggregate; or any person or entity which has the right to control the business or affairs of the Design-Builder. The term “related party” includes any member of the immediate family of any person identified above.
§ A.126.96.36.199 If any of the costs to be reimbursed arise from a transaction between the Design-Builder and a related party, the Design-Builder shall notify the Owner of the specific nature of the contemplated transaction, including the identity of the related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If the Owner, after such notification, authorizes the proposed transaction, then the cost incurred shall be included as a cost to be reimbursed, and the Design-Builder shall procure the Work, equipment, goods or service from the related party, as a Contractor, according to the terms of Section A.5.4. If the Owner fails to authorize the transaction, the Design-Builder shall procure the Work, equipment, goods or service from some person or entity other than a related party according to the terms of Section A.5.4.
§ A.5.2 Costs Not to Be Reimbursed as Part of this Contract
The Cost of the Work shall not include the items listed below:
.1 Salaries and other compensation of the Design-Builder's personnel stationed at the Design-Builder's principal office or offices other than the site office, except as specifically provided in Section A.5.1.1;
.2 Expenses of the Design-Builder's principal office and offices other than the site office;
.3 Overhead and general expenses, except as may be expressly included in Section A.5.1;
.4 The Design-Builder's capital expenses, including interest on the Design-Builder's capital employed for the Work;
.5 Except as provided in Section A.188.8.131.52 of this Agreement, costs due to the negligence or failure of the Design-Builder, Contractors and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable to fulfill a specific responsibility of the Contract;
.6 Any cost not specifically and expressly described in Section A.5.1; and
.7 Costs, other than costs included in Change Orders approved by the Owner, that would cause the Guaranteed Maximum Price to be exceeded.
§ A.5.3 Discounts, Rebates, and Refunds
§ A.5.3.1Cash discounts obtained on payments made by the Design-Builder shall accrue to the Owner if (1) before making the payment, the Design-Builder included them in an Application for Payment and received payment from the Owner, or (2) the Owner has deposited funds with the Design-Builder with which to make payments; otherwise, cash discounts shall accrue to the Design-Builder. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Design-Builder shall make provisions so that they can be obtained.
§ A.5.3.2 Amounts that accrue to the Owner in accordance with Section A.5.3.1 shall be credited to the Owner as a deduction from the Cost of the Work.
§ A.5.4 Other Agreements
§ A.5.4.1 When the Design-Builder has provided a Guaranteed Maximum Price, and a specific bidder (1) is recommended to the Owner by the Design-Builder; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid that conforms to the requirements of the Design-Build Documents without reservations or exceptions, but the Owner requires that another bid be accepted, then the Design-Builder may require that a Change Order be issued to adjust the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the Design-Builder and the amount of the subcontract or other agreement actually signed with the person or entity designated by the Owner.
§ A.5.4.2 Agreements between the Design-Builder and Contractors shall conform to the applicable payment provisions of the Design-Build Documents, and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. If an agreement between the Design Builder and a Contractor is awarded on a cost plus a fee basis, the Design-Builder shall provide in the agreement for the Owner to receive the same audit rights with regard to the Cost of the Work performed by the Contractor as the Owner receives with regard to the Design-Builder in Section A.5.5, below.
§ A.5.4.3 The agreements between the Design-Builder and Architect and other Consultants identified in the Agreement shall be in writing. These agreements shall be promptly provided to the Owner upon the Owner’s written request.
§ A.5.5 Accounting Records
The Design-Builder shall keep full and detailed records and accounts related to the cost of the Work and exercise such controls as may be necessary for proper financial management under the Contract and to substantiate all costs incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner’s auditors shall, during
regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the Design-Builder’s records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Contractor’s proposals, purchase orders, vouchers, memoranda and other data relating to the Contract. The Design-Builder shall preserve these records for a period of three years after final payment, or for such longer period as may be required by law.
§ A.5.6 Relationship of the Parties
The Design-Builder accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to exercise the Design-Builder’s skill and judgment in furthering the interests of the Owner; to furnish efficient construction administration, management services and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner consistent with the Owner’s interests.
§ A.5.7 Additional Terms
§ A.5.7.1 The Parties acknowledge, understand, and agree that Design-Builder underwent a name-change on or about August 31, 2018, wherein Design-Builder changed its name from “M+W U.S., Inc.” (“M+W”) to “Exyte U.S., Inc.” (“Exyte”). As such, all references to “M+W” in the Agreement, the First Amendment, the Second Amendment, and all other related Contract documents, exhibits, and/or attachments shall be removed and replaced with “Exyte.”
§ A.5.7.2 Notwithstanding anything in the Agreement, the First Amendment, the Second Amendment, and all other related Contract documents, exhibits, and/or attachments to the contrary, Owner acknowledges and agrees that any and all warranties related to the pre-purchase of long lead equipment (hereinafter, “Long Lead Equipment Warranties”, which shall mean equipment purchased by Design-Builder and assigned to a subcontractor for installation. Examples include, but are not limited to: Chillers, Boilers, Cooling Towers, Electrical Switchgear, and process equipment as identified in the procurement matrix) may be subject to expiration prior to the warranty periods set forth in the Agreement. As such, the Parties acknowledge and agree that Design-Builder shall have no obligation, duty, or liability to correct defective Work following the expiration of the respective Long Lead Equipment Warranties, and Owner hereby releases Design-Builder from all damages, costs, or liabilities following the expiration of such Long Lead Equipment Warranties.
§ A.5.7.3 In addition to the limitation of liability outlined in § 184.108.40.206 of the Agreement, Owner acknowledges and agrees that Design-Builder’s liability shall be capped for all damages that arise out of or relate to Eaton Corporation’s (“Eaton”) and/or Mechanical Equipment Corporation, Inc.’s (“MECO”) acts or omissions, work, or respective subcontract. Notwithstanding anything in the Agreement, the First Amendment, the Second Amendment, and all other related Contract documents, exhibits, and/or attachments to the contrary:
A.220.127.116.11 In the event that Eaton causes or contributes to any liabilities, costs, and/or direct or indirect damages to Owner (consequential or otherwise), Design-Builder, and/or the Project (including, but not limited to, the performance or non-performance of Eaton’s equipment or work) (collectively, “Eaton-related Damages”), Owner agrees that Design-Builder’s liability in connection with the Eaton-related Damages shall not exceed the amount that Design-Builder actually recovers from Eaton for the Eaton-related Damages. For the avoidance of doubt, Owner agrees that Design-Builder will not be responsible for any Eaton-related Damages or costs that exceed the amount that Design-Builder actually recovers from Eaton.
A.18.104.22.168 In the event that MECO causes or contributes to any liabilities, costs, and/or direct or indirect damages to Owner (consequential or otherwise), Design-Builder, and/or the Project (including, but not limited to, the performance or non-performance of MECO’s equipment or work) (collectively, “MECO-related Damages”), Owner agrees that Design-Builder’s liability in connection with the MECO-related Damages shall not exceed the amount that Design-Builder actually recovers from MECO for the MECO-related Damages. For the avoidance of doubt, Owner agrees that Design-Builder will not be responsible for any MECO-related Damages or costs that exceed the amount that Design-Builder actually recovers from MECO.
§ A.5.7.4 The Owner acknowledges and agrees that should Design-Builder submit its Applications for Payment in accordance with the terms of the Agreement and the forms included in Exhibit E to the Agreement, then Owner shall, diligently and without delay, proceed with issuing a Certification for Payment in accordance with the seven day timeframe referenced in § 9.4 (“Certificates for Payment”) of the Agreement. The Parties hereto understand and agree that all invoiced amounts ending in cents may be rounded to the nearest whole dollar amount, and as such, the Owner further acknowledges and agrees that the issuances of a Certification for Payment shall not be delayed, withheld, or rejected due to matters involving rounding discrepancies and/or mismatches.
This Third Amendment to the Agreement entered into as of the day and year first written above.