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Standard Form of Agreement Between Owner and Design-Builder (Lump Sum)

 

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Title:

Standard Form of Agreement Between Owner and Design-Builder (Lump Sum)

Entities:

Design-Build Institute of America; Lanesborough Corp

Date:

2004

Size:

Preview shows 8KB of 107KB total

Price:

$42

ID:

#1495205

 

 

► Real Estate ► DBIA Forms ► DBIA Document No. 525

 

 

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                  [DBIA DESIGN-BUILD INSTITUTE OF AMERICA LOGO]


STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND DESIGN-BUILDER (Y) LUMP SUM*

THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES.CONSULTATION WITH
AN ATTORNEY IS RECOMMENDED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.

This AGREEMENT is made as of the 26th day of December in the year of 2001,
by and between the following parties, for services in connection with the
Project identified below.

OWNER:
(NAME AND ADDRESS)

LSCP, L.P.
102 Lewis Avenue South
Cleghorn, IA 51014

DESIGN-BUILDER:
(NAME AND ADDRESS)

Fagen, Inc.
501 W. Highway 212
P. O. Box 159
Granite Falls, MN 56241

PROJECT:
(INCLUDE PROJECT NAME AND LOCATION
AS IT WILL APPEAR IN THE CONTRACT
DOCUMENTS)

40 MGY Dry Grind Ethanol Plant
Cleghorn, Iowa

In consideration of the mutual covenants and obligations contained herein, Owner
and Design-Builder agree as set forth herein.

*A total of 16 pages of this Exhibit 6.4 has been omitted pursuant to a request
for confidential treatment and filed separately with the Securities and Exchange
Commission.

Page 1
<Page>

Page 2
<Page>

ARTICLE 1

SCOPE OF WORK

1.1 Design-Builder shall perform all design and construction services, and
provide all material, equipment, tools and labor, necessary to complete the Work
described in and reasonably inferable from the Contract Documents.

ARTICLE 2

CONTRACT DOCUMENTS

2.1 The Contract Documents are comprised of the following:

.1 All written modifications, amendments and change orders to this
Agreement issued in accordance with DBIA Document No. 535,
STANDARD FORM OF GENERAL CONDITIONS OF CONTRACT BETWEEN OWNER AND
DESIGN-BUILDER (1998 Edition) ("General Conditions of Contract");

.2 This Agreement, including all exhibits and attachments, executed
by Owner and Design-Builder;

.3 Written Supplementary Conditions, if any, to the General
Conditions of Contract;

.4 The General Conditions of Contract, with two page Supplementary
Conditions attached thereto;

.5 Construction Documents prepared and approved in accordance with
Section 2.4 of the General Conditions of Contract;

.6 Design-Builder's Deviation List, if any, contained in
Design-Builder's Proposal, which shall specifically identify any
and all deviations from Owner's Project Criteria;

.7 Owner's Project Criteria;

.8 Design-Builder's Proposal, except for the Deviation List,
submitted in response to Owner's Project Criteria; and

.9 The following other documents, if any:

EXHIBIT A - [*];
EXHIBIT B - [*];
EXHIBIT C - [*];
EXHIBIT D - [*];
EXHIBIT E - [*]; AND
EXHIBIT F - [*].

*Portion omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.

Page 3
<Page>

ARTICLE 3

INTERPRETATION AND INTENT

3.1 The Contract Documents are intended to permit the parties to complete
the Work and all obligations required by the Contract Documents within the
Contract Time(s) for the Contract Price. The Contract Documents are intended to
be complementary and interpreted in harmony so as to avoid conflict, with words
and phrases interpreted in a manner consistent with construction and design
industry standards. In the event of any inconsistency, conflict, or ambiguity
between or among the Contract Documents, the Contract Documents shall take
precedence in the order in which they are listed in Section 2.1 hereof.

3.2 Terms, words and phrases used in the Contract Documents, including this
Agreement, shall have the meanings given them in the General Conditions of
Contract.

3.3 The Contract Documents form the entire agreement between Owner and
Design-Builder and by incorporation herein are as fully binding on the parties
as if repeated herein. No oral representations or other agreements have been
made by the parties except as specifically stated in the Contract Documents.

ARTICLE 4

OWNERSHIP OF WORK PRODUCT

4.1 WORK PRODUCT. All drawings, specifications and other documents and
electronic data furnished by Design-Builder to Owner under this Agreement ("Work
Product") are deemed to be instruments of service and Design-Builder shall
retain the ownership and property interests therein, including the copyrights
thereto.

4.2 OWNER'S LIMITED LICENSE UPON PAYMENT IN FULL. Upon Owner's payment in
full for all Work performed under the Contract Documents, Design-Builder shall
vest in Owner a limited license to use the Work Product in connection with
Owner's occupancy, repair, remodeling or enlargement of the Project and
Design-Builder shall provide Owner with a copy of the "as built" plans,
conditioned on Owner's express understanding that its use of the Work Product
and its acceptance of the "as built" plans is at Owner's sole risk and without
liability or legal exposure to Design-Builder or anyone working by or through
Design-Builder, including Design Consultants of any tier (collectively the
"Indemnified Parties"), provided, however, that any performance guarantees and
warranties (of equipment or otherwise) shall remain in effect according to the
terms of this Agreement.

4.3 OWNER'S LIMITED LICENSE UPON OWNER'S TERMINATION FOR CONVENIENCE OR
DESIGN-BUILDER'S ELECTION TO TERMINATE. If Owner terminates the Project for its
convenience as set forth in Article 8 hereof, or if Design-Builder elects to
terminate this Agreement in accordance with Section 11.4 of the General
Conditions of Contract, Design-Builder shall, then upon Owner's payment in full
of the amounts due Design-Builder under the Contract Documents, vest in Owner a
limited license to use the Work Product to complete the Project and subsequently
occupy, repair, remodel or enlarge the Project, subject to the following:

.1 Use of the Work Product is at Owner's sole risk without liability
or legal exposure to any Indemnified Party; provided, however,
that any "pass through" warranties regarding equipment or express
warranties regarding equipment provided by this Agreement shall
remain in effect according to their terms; and

.2 If the termination for convenience is by Owner or if
Design-Builder elects to terminate this Agreement in accordance
with Section 11.4 of the General Conditions of Contract, then
Owner agrees to pay Design-Builder the additional sum of One

 

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