EXHIBIT 10.1
AIA DOCUMENT A191
STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND DESIGN/BUILDER
(MODIFIED)
1985 EDITION
This document is comprised of two separate agreements: Part 1
Agreement -- Preliminary Design and Budgeting; and, Part 2
Agreement -- Acceptance of Design and Bid and Construction.
Hereafter, the Part 1 Agreement is referred to as Part 1 and the
Part 2 Agreement is referred to as Part 2.
PART 1 AGREEMENT -- PRELIMINARY DESIGN AND BUDGETING
AGREEMENT made effective as of November 11, 1995
BETWEEN the Owner ▇▇▇▇▇▇▇ REAL ESTATE HOLDINGS, INC.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
and the Design/Builder: ▇▇▇▇▇▇ & MIDGLEY INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
For the following project:
The design and preparation of budgets, estimates, and bids for
the construction of a building, parking lot, landscape and site
improvements for the Owner at ▇▇▇▇▇ ▇▇▇▇▇▇ Dr., Pocatello, ID.
The scope of work shall include the design of all on-site
improvements and office-warehouse facilities, parking lots,
loading docks, and landscaping to meet the needs and requirements
of Owner. Off-site improvements are the responsibility of
Pocatello City. Once designed, Design/Builder shall construct the
improvements pursuant to part 2, in accordance with the plans and
specifications determined by the designs produced by
Design/Builder. The Part 1 and Part 2 Work shall proceed
simultaneously with the actual construction under Part 2 to be
performed in phases as needed to complete the Project and as
designs are available and approved by Owner. All design work
shall be performed by licensed and competent engineers or
architects selected by Design/Builder.
The architectural services described in Article 2 will be
provided by the following person or entity who is lawfully
licensed to practice architecture.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
17
The Owner and the Design/Builder agree as set forth below.
Terms and Conditions -- Part 1 Agreement
ARTICLE 1
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 The "Project" is the total design of the improvements and
preparation of budgets and estimates for which the Design/Builder
is responsible under Part 1, as originally described on page 1,
including all professional design services and all labor,
materials and equipment used or incorporated in such design.
1.1.2 The "Work" comprises the preparation of a completed design
for improvements included in the Project, preparation of all and
all plans and specifications ready for use in bidding, estimating
and construction of the Project and includes all labor and
services necessary to produce the completed design, and all plans
and specifications as required.
1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 This Part 1 shall be signed in not less than duplicate by
the Owner and Design/Builder
1.2.2 Nothing contained in the Design/Builder Contract Documents
shall create a contractual relationship between the Owner and any
third party.
1.3 OWNERSHIP AND USE OF DOCUMENTS
1.3.1 The drawings, plans, and specifications and other documents
prepared by the Design/Builder shall remain the property of the
Design/Builder whether or not the Project for which they are
prepared is commenced. At Owner's expense, Owner shall have the
right to retain copies of such drawings, plans and specifications
as Owner may deem necessary for its own use at the Project site.
ARTICLE 2
DESIGN/BUILDER
2.1 SERVICES AND RESPONSIBILITIES
2.1.1 Design services shall be performed by qualified architects,
engineers and other professionals selected and paid by the
Design/Builder who are supervised and act under the direction of
the Design/Builder. The professional obligations of such persons
shall be undertaken and performed in the interest of the
Design/Builder and Owner. Nothing contained in Part 1 shall
create any contractual relationship between such persons and the
Owner.
2.1.2 The Design/Builder shall be responsible to the Owner for
18
acts and omissions of the Design/Builder's employees and any
parties performing Work for the Design/Builder, provided such
work is within the scope of this Project, and such parties'
respective contracts, including such parties' agents and
employees.
2.2 BASIC SERVICES
2.2.1 The Basic Services for Part 1 are: The total design,
including separation into phases, of all on-site improvements,
parking lots, driveways, sidewalks, landscaping and warehouse-
manufacturing building for Owner of at least 104,000 square feet,
and paved parking areas containing at least 150 parking spaces.
2.2.2 The Design/Builder shall review the Owner's program to
ascertain requirements of the Project and shall review such
requirements with the Owner.
2.2.3 The Design/Builder shall provide, after consultation with
the Owner, a preliminary evaluation of the program and Project
budget, each in terms of the other.
2.2.4 The Design/Builder shall review with the Owner alternative
approaches to design and construction of the Project.
2.2.5 The Project shall be designed and construction may proceed
under Part 2 in phases as such designs are completed by
Design/Builder and approved by Owner. Each "Phase" shall
constitute a discreet portion of the Project. All phases shall be
designed and constructed within the Owner's budget unless Owner
agrees otherwise in writing.
2.2.6 As portions of the Project design, plans and specifications
are completed, they shall be submitted to Owner for approval. If
Design/Builder cannot complete a design acceptable to
Design/Builder and Owner within Owner's budget, this Part 1 and
Part 2 may then be terminated by written notice by either party.
In such event, Design/Builder shall be entitled to compensation
for the Work performed under Part 1 and Part 2 of this Agreement
to the date of termination. Once a design is approved by Owner,
the Design/Builder shall submit to the Owner a Proposal for each
phase of the Project, including the completed Design Documents, a
statement of the proposed contract sum for that phase of the
Project, a proposed schedule for completion of the Work under
Part 2 for that phase of the Project, and all other information
necessary to complete Part 2 Work. Design Documents shall consist
of design drawings, specifications and other documents to fix and
describe size, quality and character of each phase, or a
particular phase, of the entire project, its architectural,
structural, mechanical and electrical systems, and the materials
and such other elements of the Project as may be appropriate. If
the Proposal for that phase is accepted by the Owner, then Owner
and Design/Builder shall execute an addendum to Part 2 for the
phase of work to be constructed by Design/Builder. Nothing herein
shall require Owner to accept the design for any phase of
19
construction as submitted by Design/Builder.
2.2.7 Design/Builder shall be responsible to obtain geotechnical
engineers and other consultants when such services are deemed
necessary by the Design/Builder. Geotechnical engineers or other
consultants shall be selected by mutual agreement. Such services
shall include, as required applicable test borings, test pits,
soil bearing values, percolation tests, air and water pollution
tests, and other necessary operations for determining subsoil,
air and water conditions, with reports and appropriate
professional recommendations.
2.3 ADDITIONAL SERVICES
All other services requested by the Owner and mutually agreed to
in writing by the Owner and Design/Builder in Part 1, including,
among others, changes in Project scope and program, shall
constitute Additional Services and shall be paid for by the Owner
as provided in this Part 1.
ARTICLE 3
OWNER
3.1 The Owner shall provide information regarding requirements
for the Project, including but not limited to the Owner's design
objectives, constraints and criteria.
3.2 If a design at the projected total cost is not approved as
satisfactory by Owner and Design/Builder, either party shall have
the right to terminate Part 1 and Part 2 and the Design/Builder
shall be entitled to compensation, as provided herein, for the
Work under Part 1 and Part 2 of this Agreement, to the date of
termination. Any material modification of the Design Documents
after acceptance by the Owner shall require a review of the
Project budget for impact and mutually agreeable Change Orders.
The Project cost shall not include off-site improvements by the
City of Pocatello.
3.3 The Owner has designated representatives authorized to act on
the Owner's behalf with respect to the Project. The
representatives for Owner shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇.
▇▇▇▇▇▇▇. The Owner or such authorized representative shall
examine the documents submitted by the Design/Builder and shall
render decisions pertaining thereto within a reasonable time
after submittal to avoid delay in orderly progress of the design
Work and proceeding with construction under Part 2.
3.4 The Owner shall cooperate with the Design/Builder in
identifying required permits, licenses and inspections, and shall
take appropriate action with reasonable promptness.
3.5 The Owner will furnish a legal description and a certified
land survey of the site, giving, as applicable grades and lines
of streets, alleys, pavements and adjoining property; rights-of-
way, restrictions, easements, encroachments, zoning, deed
20
restrictions, elevations and contours of the site; locations,
dimensions and complete data pertaining to existing buildings,
other improvements and trees; and full information concerning
available services and utility lines, both public and private,
above and below grade, including inverts and depths.
Design/Builder shall be responsible to obtain any other
information in addition to that previously furnished by Owner.
3.6 If the Owner observes or otherwise becomes aware of any fault
or defect in the Work, the Owner shall give prompt written notice
thereof to the Design/Builder.
3.7 The Owner shall furnish required information and services and
shall render decisions with reasonable promptness to avoid delay
in orderly progress of the Design/Builder services.
3.8 The Owner shall communicate with contractors only through the
Design/Builder, unless otherwise deemed necessary by the Owner.
3.9 Owner and Design/Builder acknowledge that Owner has
previously entered into an agreement with Pocatello City to
provide certain off-site improvements. Owner and Design/Builder
shall each use their best efforts to coordinate the work efforts
of Pocatello City and Design/Builder to avoid interference and
delay in construction of the off-site improvements.
ARTICLE 4
TIME
4.1 The Design/Builder shall provide the Basic and Additional
Services as expeditiously as is consistent with reasonable skill
and care. The Basic Services to be performed have already
commenced as of Sept 27, 1996 subject to authorized adjustments,
Change Orders, and to delays not caused by the Design/Builder,
shall be completed, including all of Part 1 and Part 2 Work, on
or before June 15, 1996.
ARTICLE 5
PAYMENTS
5.1 Payments for Part 1 Basic Services, Additional Services and
Reimbursables Expenses shall be made monthly on the basis set
forth in Article 8.
5.2 Within 15 days of the Owner's receipt of a properly submitted
Application for Payment, the Owner shall make payment to the
Design/Builder, unless Owner shall dispute the quality of the
work or the estimate of progress, based upon recommendations of a
qualified architect or engineer. Owner shall withhold payment
only on a disputed portions of the Work. Application for Payment
may be submitted only once each month, on or before the first day
of each month.
5.3 Payments due the Design/Builder under Part 1 which are not
paid when due shall bear interest from the date due at the rate
of Twelve Percent (12%) per annum.
21
5.4 With each Application for Payment, the Design/Builder shall
provide unconditional lien waivers from itself & each
subcontractor/material supplier covering the previous Application
and a conditional lien waiver from the Design/Builder which
covers the current Application.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 This Part 1 shall be governed by the laws of the State of
Utah.
6.2 The table of contents and the headings of articles and
paragraphs are for convenience only and shall not modify rights
and obligations created by Part 1.
6.3 In case a provision of Part 1 is held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not be affected.
6.4 This Part 1 shall be binding on successors, assigns, legal
representatives of, and persons in privity of contract with, the
Owner or Design/Builder. Neither party shall assign, sublet or
transfer an interest in Part 1 without written consent of the
other. Design/Builder may not subcontract any of the Project or
the Work to any person without approval of the Owner in writing.
This paragraph 6.4 shall survive completion of the Work required
under Part 1.
6.5 Part 1 represents the entire agreement for the design and
completion, of proposals for each phase of Work within the
Project, and supersedes all prior negotiations, representations
or agreements. Part 1 may be amended only by written instrument
signed by both Owner and Design/Builder.
6.6 In case of termination of the Architect, the Design/Builder
shall provide the services of another lawfully licensed person or
entity against whom the Owner makes no reasonable objection.
ARTICLE 7
BASIS OF COMPENSATION
The Owner shall compensate the Design/Builder in accordance with
Article 5, Payments, and the other provisions of Part 1 as
described below.
8.1 COMPENSATION FOR BASIC SERVICES
8.1.1 FOR BASIC SERVICES, compensation shall be as follows: An
amount equal to the sum of Professional Expenses, plus ten
percent (10%) of said amount.
22
8.2 COMPENSATION FOR ADDITIONAL SERVICES
8.2.1 FOR ADDITIONAL SERVICES, compensation shall be as follows:
On the same basis described at Paragraph 8.1, but must be
approved in writing by Owner as "additional services", in advance
of performance of the services, before additional payment shall
be due.
8.3 PROFESSIONAL EXPENSES
8.3.1 Professional Expenses are the basis for determining
Compensation for Basic and Additional Services and include actual
expenses incurred by the Design/Builder and the Design/Builder's
employees and contractors in the interest of the Project for the
expenses listed as follows: Architects fees, engineers fees,
duplication and copying costs and fees, permit fees and expenses,
and fees or costs for draftsmen, CAD operators or surveyors, and
such other costs or fees incurred by Design/ Builder in preparing
the designs, plans and specifications for the Project and which
may reasonably be included within the Project budget.
8.4 INTEREST PAYMENTS
8.4.1 The rate of interest for past due payments shall be as
follows:
Interest at the rate of 12% per annum.
An initial payment of $245,048.93 shall be paid upon execution
of this Agreement (Retention already deducted). Said payment is
for work performed prior to the date of this Part 1. No interest
shall be paid thereon.
8.5 RETENTION
8.5.1 Owner may, at Owner's option retain an amount equal to Ten
Percent (10%) of the amount charged and required to be paid under
Section 8.1 above for labor and services as itemized on the
Application for Payment, Amounts retained may be held by Owner
for up to thirty (30) days after Owner's written approval of
final plans and specifications for this Project. If the design
cannot be completed acceptable to Owner and Design/Builder, the
amounts held in retention shall be paid upon contract
termination, except for amounts disputed for quality or value of
the Work. No interest shall be paid on retention.
This Part 1 entered into as of the and year first written above.
OWNER DESIGN/BUILDER
▇▇▇▇▇▇▇ REAL ESTATE
HOLDINGS, INC. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ INC.
By: ▇▇▇▇ ▇▇▇▇▇▇, President By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President
23