Sample EPC Contract in P M

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT FOR POWER GENERATION PROJECT Dated July 4, 2000 Between the Cityof Dreams, Dakota and Wombat Construction LLC ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT FOR POWER GENERATION PROJECT This Agreement is made and entered into this 4th day of July, 2000, between the City of Dreams, Dakota, a municipal corporation (the "City") and Wombat Construction LLC, a Delaware limited liability company ("Developer"). City and Developer are sometimes individually referred to as "Party" and collectively as "Parties". RECITALS The City has determined, subject to the terms and conditions of this Agreement, to acquire an electrical generating facility, as generally described in the Scope of Work attached hereto, to be engineered, procured and constructed in Dreams, Dakota, and requires the services of a developer for the project that is experienced in engineering, permitting, procuring, installing and commissioning of a simple cycle electric generating facility; and The Developer has submitted a proposal in response to City's Request to engineer, permit, procure and construct the proposed generating facility; and The Developer has submitted a preliminary progress Schedule to City which City has reviewed and approved; and The City desires to have Developer perform or cause to be performed for City all engineering, permitting, procurement and construction services related to the project pursuant to the terms of this Agreement; and The City desires to utilize private sector investment capital of Developer in connection with the Project. For example, and not by way of limitation, this Agreement provides for the initial acquisition of the Project Site by Developer, and it is also contemplated that Developer will make the initial investment in connection with the Emissions Reduction Credits required for the Project, which Emissions Reduction Credits will be made available to the City and will be paid for pursuant to an Operation and Maintenance agreement to be entered into between the City and Developer or an affiliate of Developer. NOW, THEREFORE, in consideration of the mutual obligations and undertakings herein contained, and intending to be legally bound hereby, the Parties hereto agree as follows: 1. Definitions. 1.1 Agreement. This Engineering, Procurement and Construction Agreement for Power Generation Project between the City of Dreams and Wombat Construction LLC, includes all Appendices and Exhibits attached hereto, as they may be amended or supplemented in writing from time to time. 1.1.a Authorization. Any license, permit, approval, clearance, entitlement, allowance, franchise, notification, consent, registration, qualification, declaration, filing or other authorization, whether private, governmental or otherwise; or any zoning, subdivision, or similar land use ordinance of any governmental authority. 1.2 Bonds. The Performance and Payment Bonds required pursuant to Dakota State Law Section 3247-3248 and Section 16 hereinafter. 1.2.a DEQA. Section 21000 Seq. The Dakota Environmental Quality Act, Public Resources Law 1.3 Change Order. A written document signed by City's Authorized Representative, which authorizes an addition, deletion, or revision in the Work or an adjustment in the Completion Date or Contract Price, issued on or after the Effective Date of this Agreement. 1.4 The City of Dreams, Dakota, a Dakota municipal corporation, acting by and through its Electric Department. 1.5 City's Representative. A person designated in writing to act as City's agent with respect to Developer's performance of the Work and who will be available to consult with Developer regarding matters arising under the Agreement and the Contract Documents at all times during the term of this Agreement. Such person shall have complete authority to transmit instructions, receive information, and make binding decisions with respect to performance of the Work, and execute Change Orders on behalf of the City. The City hereby designates its Utility Director as the City's Representative. 1.6 Construction. The performing or furnishing of labor, the furnishing and incorporating of materials and equipment into the Work and the furnishing of services and documents for the Work, all as required by the Contract Documents. 1.7 1.8 Construction Phase. The phase of the Work including Construction. Intentionally Left Blank. 1.9 Contract Documents. This Agreement, Exhibits A through I inclusive, the approved Plans and Specifications, Standard Specifications, the Bonds, Change Orders. 1.10 Contract Price. The aggregate amount payable by City to Developer under this Agreement, i.e. the sum of the separate prices for the Engineering, Procurement and Construction Phases. 1.11 1.12 company. Days. Unless otherwise specified shall mean calendar days. Developer. Wombat Construction LLC, a Delaware limited liability 1.13 Developer's Representative. A person designated in writing to act as Developer's agent with respect to this Agreement. Such person shall have complete authority to transmit instructions, receive information and execute Change Orders on behalf of Developer. Developer hereby designates it's Senior Vice President of Energy Infrastructure as Developer's Representative. 1.14 5.9. 1.15 Effective Date. The date identified in the caption to this Agreement. Developer's Taxes Those taxes described as Developer's Taxes in Section 1.16 Engineering Phase. The phase of the Work including Engineering Services, Environmental Services, and Project Management Services. 1.17 Engineering Services. Services of Developer related to the preparation of Plans and Specifications, and other design submittal specified by the Contract Documents and required to be performed by licensed design professionals describing and detailing the Project and providing criteria for the detailed design by suppers of equipment, materials and systems to be incorporated into the Project, as set forth in Dakota Government Law ║ 4525(d). 1.18 Environment shall mean soil, surface waters, ground waters, land, stream sediments, surface or subsurface strata, ambient air, and/or any environmental medium. 1.19 Environmental Condition shall mean any condition with respect to the Environment on or off the Project Site, whether or not ret discovered, which results or could result in the imposition of any cost, expense, damage, fine, penalty, liability or other loss on Developer or the City by any governmental authority or other third party, including the presence of polychlorinated biphenyls or substances containing polychlorinated biphenyls on the Project Site, and including any condition resulting from or attributable to any other property in the vicinity of the Project Site and/or any activity or operation formerly conducted by any person or entity on or off the Project Site. 1.20 Environmental Services. Services of Developer performed in connection with project development and Authorization processing in order to comply with federal and state environmental laws, as set forth in Dakota Government Law ║ 4525(f). 1.21 Excluded Cost. A cost, expense or liability associated with the Project, which is not included in the Contract Price and for which Developer and Subcontractors are not entitled to payment, reimbursement or any form of compensation, from City pursuant to the Contract Documents. 1.22 Final Completion. The date on which the following have occurred: (a) Mechanical Completion, (b) Substantial Completion, and (c) completion of Developer's obligations with regard to the Punch List created pursuant to the Scope of Work and (d) institution of functional automatic generation control with Dakota Independent System Operator (or its successor). and the availability of the proceeds thereof for payments pursuant to this Agreement. or (B) the time for filing appeals or other challenges to such permit has expired with no appeal or other challenge having been filed. to the extent that such delay is not attributable to actions or failure to act by Developer. or toxic materials. fire or other casualty loss.23 Force Majeure Event. (ii) the completion of the issuance of the Municipal Bonds.24 Gas Turbine Generator Unit. to the extent that such delay is not due to delay in ordering Major Equipment by Developer or other fault of Developer. 1. epidemics. picketing. 1. and either (A) all appeals or other challenges of such permit have been resolved to Developer's satisfaction. or (B) the time for filing appeals or other challenges to such decision has expired with no appeal or other challenge having been filed.22. after the anticipated date therefor as set forth in the Schedule of Values. 1. The gas turbine generator described in the Scope of Work. in a manner reasonably satisfactory to Developer. delay in transportation. to the extent that such delay is not the fault of Developer. A decision in the Validation Action reasonably satisfactory to Developer has been issued and either (A) all appeals or other challenges of such decision have been resolved to Developer's satisfaction. 1. and the Project Site to City. severe weather. (iii) the delivery of Major Equipment after the date on which such equipment was expected to be delivered. and (iv) delay in achieving an interconnection between the Project and the City's electrical system.25 Grant Deed. strikes. or civil commotion. including. and secondary boycotts. Solely with respect to Developer. Force Majeure shall also include the following: (i) the receipt of a Final Validation Decision after the anticipated date for such receipt as set forth in the Schedule of Values. job actions. or other utility systems. the Project. 1. slowdowns. dangerous. .22.a Final DEQA Compliance. title and interest in the Work. riot. beyond the date specified in the Progress Schedule. water system. acts of declared or undeclared war or public disorder. The grant deed conveying all of Developer's right. and delay in achieving an interconnection between the Project and Southern Dakota Gas Company's system. sufficient to permit Construction. to the extent that such delay is not the fault of Developer. acts of God. The process mandated by DEQA shall have been filly complied with. but not limited to. testing. or any other event beyond the reasonable control of the Party asserting the Force Majeure Event.b Final Validation Decision.26 Hazardous Condition. as set forth n the Progress Schedule. Hazardous.1. The occurrence of: labor disputes or problems. operation and maintenance of the Project. including without limitation smoke. The phase of the Work including Procurement 1. Procurement Phase.substances. that subdivides the Work into phases and component parts and serves as the basis for establishing Milestones for submitting. electrical switchgear. codes and orders of any and all governmental entities. for performance of the Work. pollutants. Any and all applicable laws.28 Major Equipment. expediting delivery of. including but not limited to those so defined in any law. 1. soot. Services of Developer related to ordering. receiving and storing Major Equipment (i. resolutions and orders).32 Plans. elements. The following major equipment components of the Project: the Gas Turbine Generator Unit. regulations. or reproductions thereof. which show the location. Laws or Regulations. The initial Progress Schedule is attached . and City laws. emissions control equipment.27 Laws and Regulations.29 Mechanical Completion. working drawings. or regulation. transformers. 1. and courts having jurisdiction. rules. codes. 1. bodies. exhaust silencers.34 Procurement Services. exhaust silencers. fumes. 1. transformer$. That certain Option Agreement between the City and James and Frances Beckett that permits the City to purchase the Project Site. alkalis. irritants or contaminants of any kind. electrical switchgear. vapor. A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work.30.e.35 Progress Schedule. the Gas Turbine Generator Unit. Bonds issued by the City the proceeds of which will be used to pay for the Project. ordinances. agencies. dimensions. 1. ordinance. and supervisory control and data acquisition ("SCADA") equipment.a Municipal Bonds. A tabulation. chart or graph submitted by Developer and approved by City. conditions. The date when all materials and equipment for the Project (except for minor portions of the Work not affecting the operability or safety of the Project) have been installed substantially in accordance with the Plans and Specifications and all systems necessary for power generation are ready to Commence performance testing required by the Scope of Work. rules. acids. or details of the Work. emissions control equipment. reviewing processing and approving Submittals. and for depicting the chronological relationship of principal activities of the Project. local. ordinances. 1.30 Milestone. 1. character. regulations. 1. rule. cross sections.31 Option Agreement. chemicals and waste.33 Services.. 1. and supplemental drawings. profile. and authorities (including without limitation. tracking. SCADA) and any other long lead time equipment and materials. provided by Developer to City. The drawings. all federal state. 1. 56 Cooperation. 79 Protection and Restoration of Existing Improvements. Those portions of the Contract Documents prepared by or for Developer and approved by City consisting of written technical descriptions of materials. 61 General. 67. 65 Termination of Contract. .9. 34 Changed Conditions. Dakota and more particularly described in Exhibit P. 1.36 Project. at the Project Site in Dreams. 29 Surveying.4 Metric International System. The schedule attached hereto as Exhibit G. 1.36a Project Management Services. 28 Right of Way. 1. 66 delays and Extensions of Time. construction systems. 66. as required by the Contract Documents and more fully described in Exhibit E. The document entitled "Scope of Work" which is attached hereto as Exhibit F!.3 Abbreviations. 63 Suspension of Work. as set forth in Dakota Government Law ║ 4525(e) and 4529. claims review and negotiation. bid evaluation.3 Shop Drawings and Submittals.41 Retention. Services of the Developer related to project design review and evaluation. 62 Archeological and Paleontological Discoveries.42 Scope of Work.44 Standard Specifications. construction mobilization and supervision. The following sections of the 1997 Edition of the "STANDARD SPECIFICATIONS FOR PUBLIC WORKS CONSTRUCTION": 1.hereto as Exhibit D. standards and workmanship as applied to the Construction and certain administrative details applicable thereto. 55 Delays.4. generally located east of Aqua Mini Road and south of the City's wastewater facility in Dreams. 1.40 1. 211 Inspection. 1.37 Project Site. The electrical generating facility consisting of one individual generator unit and appurtenant facilities. to be engineered. 35 Disputed Work. 1. The property to be acquired by Developer.43 Specifications. procured and constructed by Developer. 1. 67 Time of Completion. and general management and administration of a construction project. 64 Default by Contractor. 62. 26 Work to be Done.1 Labor General. 1.1 General. equipment.5.38 Project Taxes Those taxes described as Project Taxes in Section 5. Those sums described in Section 7. 66. 33 Extra Work. 1. The list of items of defective or incomplete work to be corrected by Developer following Substantial Completion in order to achieve Final Completion. project scheduling. 25. 1. 27 Subsurface Data. 52 (Utilities) Projection.2 Extensions of Time. cost benefit analysis.2 Definitions (except as such definitions are modified herein). 1.1 Terms.39 Punch List. Dakota.1 General (except no delay damages except for those delay damages that are set forth in this Agreement). Schedule of Values. 31 Changes Requested by the Contractor. and 710 Public Convenience and Safety. 41 Materials and Workmanship. respectively. Any person or entity with whom Developer has entered into any subcontract.1 of this Agreement. drawings. (ii) Using the singular or plural number also includes the plural or singular number. 1." or "Exhibit" are. Section.10.45 Subcontractor. or other subdivision of this Agreement.51 Work.1. The date of Substantial Completion determined in accordance with Section 9. unless otherwise noted. and (c) all of the performance tests required by the Scope of Work have been successfully completed. references to that Article or Section of. shop drawings. The following rules of interpretation of this Agreement shall apply unless otherwise specified in this Agreement or unless the context otherwise requires: (i) Words of any gender include each other gender. or other agreement for such person or entity to perform any part of the Work or to provide any materials.50 Turnover. 1. .52 Rules of Interpretation. or Exhibit to. Submittals may include without limitation Plans. 1. equipment or supplies on behalf of Developer (including any person or entity at any tier with whom any Subcontractor has further subcontracted any part of the Work). The proceeding described in Section 6." "hereunder" and words of similar or like import refer to this entire Agreement and not to any particular Article. (iii) Any reference to any person in any capacity includes a reference to its successors and permitted assigns in such capacity and in the case of any governmental authority. (iv) The terms "hereof. The date that all of the following have occurred: (a) Mechanical Completion. procurement.46 Submittal. A writing or graphic prepared by or for Developer that is required by the Scope of Work as a deliverable or in the Contract Documents to be submitted to City by Developer. any person succeeding to its functions and capacities." "Section." "hereto." "herein. construction and other services required by the Contract Documents. revisions to the Progress Schedule or the Scope of Work. 1. reports and samples. as established pursuant to Section 9.47 Substantial Completion. 1. (v) References to a particular "Article. The engineering.49 the City.48 Substantial Completion Target Date. 1. Specifications. The conveyance of the Project Site and the completed Work to Validation Action. (b) the Project is substantially complete in accordance with the Scope of Work and can be safely operated for Its intended purpose. Exhibit. purchase order. this Agreement. 1. Should the provisions of this Agreement relating to the Construction Phase be held invalid. the Procurement Phase and the Construction Phase. Developer shall assist in completion of Final DEQA Compliance. schedules. 2. 2. and other attachments thereto. appendices. 2 Phasing. . respectively and (iii) years shall refer to calendar years unless otherwise specified.(vi) The words "include.2 Each phase will be priced separately. In general." "includes" and "including" shall be deemed to be followed by "without limitation" or "but not limited to. 2. event or default from which the designated period of time begins to run shall be included. and the Contract Price will be the sum total of the three separate prices. Should the provisions of this Agreement relating to the Procurement Phase be held invalid. and Construction third. 2. although there will be some overlap. The City shall provide appropriate documentation demonstrating that it is in compliance with DEQA. (x) All accounting terms used but not expressly defined herein shall have the meanings given to them under GAAP and as may be appropriate to the books. the City's obligation to pay Developer for costs incurred in the performance of the Engineering Phase shall survive." (vii) Unless reference is made to a Law or Regulation as of a specific date.4 DEQA Compliance. (xi) In computing any period of time prescribed or allowed under this Agreement. Procurement second. as detailed in Section 7. In its capacity as the developer of the Project. (ii) weeks and months shall refer to calendar weeks and months. (viii) References to any agreement or document (including this Agreement) shall include all exhibits. references to any Law or Regulation shall be construed as a reference to such Law or Regulation as in effect from time to time. the day of the act. The City shall pay Developer for the Procurement and Construction Phases out of proceeds from the sale of the Municipal Bonds.3 The City shall pay Developer for the Engineering Phase out of general obligation funds currently held by the City. records and accounts established and maintained in accordance with this Agreement.1 The Work will consist of three phases: the Engineering Phase. the City's obligation to pay Developer for costs incurred in the performance of the Engineering Phase and the Procurement Phase shall survive. the three phases will proceed in the order of Engineering first. (ix) References to (a) days shall refer to calendar days unless business days are specified. The requirements of DEQA shall be satisfied before commencement of the Procurement Phase.1. 2. No later than thirty (30) days after the Effective Date. or one or more phases of this Agreement. what is called for by one is as binding as if called for by all. materials or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage and that is necessary to complete the Work will be furnished and performed by Developer. Developer and the City shall have entered into a mutually agreeable Operation and Maintenance Agreement pursuant to which Developer will operate and maintain the Project on behalf of the City. Developer shall be entitled to retain any such component for which Developer is not actually reimbursed by the City. No later than thirty (30) days after the Effective Date. 4. Developer shall begin performing the Engineering Phase of the Work as soon as practicable after the Effective Date. in form and substance satisfactory to Developer in Developer's reasonable discretion. 4. The Contract Documents will be construed in accordance with the laws of the State of Dakota.2. Developer may.1.2 Notwithstanding the foregoing. extension.2. without further obligation: i. procured and constructed in accordance with the Contract Documents. Amending Use. Intent.2. terminate this Agreement. but shall not be obligated to. or waiver of each of the conditions precedent listed in Section 3.3 Developer shall notify the City of the satisfaction. 3. 3 Commencing the Work. Any Work. 4. Developer shall have entered into an option to purchase the Project Site directly from James and Frances Beckett meeting the requirements of Section 5. the Contract Documents . Developer's obligations under this Agreement are expressly subject to the fulfillment of the conditions listed below.1 Subject to Section 3.3 In the event there are any conflicting provisions or requirements in the component parts of the Agreement and the Contract Documents.1.1 The Contract Documents are complementary. 3. and in the event that the Municipal Bonds are not subsequently issued by the City. In the event that any such condition shall not have been fulfilled by the date indicated (as such date may be extended). at its option.1 Intent. ii. 4.1. provided that Developer may waive any such condition or may extend the date for fulfillment of any such condition. Developer's obligations hereunder shall commence upon the satisfaction or waiver of the last such condition precedent.2 It is the intent of the Contract Documents to describe a functionally complete Project to be engineered. 3.5 In the event that Developer commences procurement of any Project components prior to the issuance of the Municipal Bonds. 4 Contract Documents. equipment.1 Reference to standards.2. tools.2. shall mean the latest standard. Procurement Services. manuals or codes of any technical society. and including those things reasonably inferable from the Contract Documents and necessary to complete the Work even though no mention thereof is expressly made in the Contract Documents. machinery. delivery. As set forth in the Scope of Work and in conformity with the Contract Documents. startup.2 Purchase of Project Site. or to the Laws or Regulations of any governmental authority.1 General. erection. 5 Developer's Responsibilities. labor. specification. 4. permitting. chemicals. the engineering. . 5. organization or association. Developer shall render or cause to be rendered. specifications (except the Standard Specifications). manual. the present owners of the Project Site.2 References. Environmental Services. manual. consultants.and Agreement components shall take precedence in the following order: Amendments to the Agreement and Change Orders. code or instruction shall be effective to change the duties and responsibilities of City.2 No provision of any such standard. (ii) the date that a Final Validation Decision is received. procurement. code or Laws or Regulations in effect at the time of the Effective Date of the Agreement except as may be otherwise specifically stated in the Contract Documents. nor shall it be effective to assign to City any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents. agents. Project Management Services and Construction Services required by the Contract Documents. The Agreement Appendices and Exhibits to Agreement Standard Specifications 4.3 Developer shall be responsible for the payment of all property taxes for the Project Site related to the period during which Developer owns the Project Site. 5. 5. commissioning. 4. 5. transportation and structures. supplies. including without limitation all necessary services. whether such reference be specific or by implication. and (iii) the date that Final DEQA Compliance is completed. supervision. specification. in reverse chronological order.2. Developer or any of their Subcontractors.2 Developer shall not under any circumstances be required to purchase the Project Site prior to the later of (i) the date that the proceeds of the Municipal Bonds become available to Developer for such purpose. construction.2. 5. and testing of the complete Work for the Project consisting of the performance of all Engineering Services. or employees from those set forth in the Contract Documents. materials.2.1 Developer shall obtain title to the Project Site directly from James and Frances Beckett. that Developer shall not be responsible for the design.1 General.4. 5.6 Procurement Services. As between the Parties. in addition to any amounts payable to Developer pursuant to Section 17. 5. feasibility.e.1 General. plus any document fee or similar charges paid in connection with the purchase of the Project Site and any property or other taxes. drawings. Developer shall have the right to require the City to repurchase the Project Site for the same amount paid by Developer. Developer shall render or cause to be rendered the Environmental Services required to obtain the Authorizations necessary for accomplishment of the Project. Specifications. then. 5. the Gas Turbine Generator Unit and other Major Equipment (i. 5. specifications. the professional quality. and any interest and other carrying charges incurred by Developer as a result of its ownership of the Project Site. The standard of care for Engineering Services shall be the care and skill ordinarily used by members of the engineering or architectural profession practicing under similar conditions at the same time and locality. Developer shall be solely and totally responsible for the engineering of the Project.5. electrical . 5. and other Engineering Services required by the Contract Documents. 5.3 Developer Responsibility. and the coordination of all designs. technical accuracy.4 In the event that this Agreement terminates for any reason prior to Substantial Completion. 5. 5. feasibility or coordination of any element incorporated into the Project pursuant to Section 12. provided. Plans. Developer represents that it has the requisite expertise and skill to undertake the performance of the Work.2 Standard of Care.4. however.2.4 Engineering Services. City has furnished and may continue to furnish Developer with written technical information regarding the City's existing electric system as necessary to provide Developer the references needed to properly integrate the Project into the existing electric facilities. design criteria.5.2 Standard of Care. Developer shall have no liability for defects in the Work attributable to Developer's reasonable reliance upon or use of such written data.4. Developer shall order in its name and not as agent for City. Developer shall render or cause to be rendered the Engineering Services set forth in the Scope of Work in accordance with the terms and conditions of the Contract Documents and the Progress Schedule.3 Developer's Expertise..5 Environmental Services. or other written information furnished by City or City's authorized agents. 5. Drawings. technical accuracy.5. The standard of care for Environmental Services shall be the care and skill ordinarily used by members of the environmental consultant profession practicing under similar conditions at the same time and locality.4. 7. techniques. store and pay for said equipment. Except as otherwise required for the safety or protection of persons or the Work or property at the Project Site or adjacent thereto. labor.2. Developer shall furnish or cause to be furnished and assume full responsibility for materials. devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Construction in accordance with the Contract Documents. sequences and procedures employed for the Construction. claims review and negotiation. receive. or specified by Developer in a prior written notice to the City.8 Construction. testing.2 Except as otherwise specified in the Contract Documents. competent.7 Project Management Services. Monday through Saturday unless directed otherwise by the City.switchgear. authorized by the City. suitably qualified labor to survey and layout the Construction and perform Construction as required by the Contract Documents.1 General.. who shall not be replaced without written notice to City except under extraordinary circumstances. bid evaluation.7. and all other things necessary for the furnishing.8. transportation. Developer shall perform or cause to be performed Project Management Services.8.2 Supervision of Construction.2. Developer shall be responsible to see that the complete Construction complies accurately with the Contract Documents and shall keep City advised as to the quality and progress of the Construction. heat. appliances. construction equipment and machinery. cost benefit analysis. incidentals.7.2 Developer shall keep on the Project Site at all times during Construction a competent resident superintendent. Developer shall be solely responsible for the means. or cause to be provided. sanitary facilities. temporary facilities and all other facilities. emissions control equipment. 5. Developer shall track. 5. 5. 5. Developer shall at all times maintain good discipline and order at the Project Site. 5. water. Developer shall provide sufficient labor to maintain the prosecution of the Work in accordance with the Progress Schedule and Contract Documents. All communications to the superintendent shall be as binding as if given by Developer. SCADA) and other long lead time equipment and materials required for the Project. expedite.m.7. tools. 5. methods. telephone. project scheduling. and 7:00 p. and except as otherwise indicated in the Contract Documents. . equipment. transformers. including design review and evaluation. startup and completion of the Work. 5. construction mobilization and supervision. inspect and direct the Construction competently and efficiently. and general management and administration of a construction project. performance. 5. as set forth in Exhibit H and in conformity with the Contract Documents.1 Developer shall provide. all Construction at the Project Site shall be performed between the hours of 5:00 am. exhaust silencers.1 Developer shall supervise. 11.3 All materials and equipment incorporated into the Work shall be of good quality and new.10 Progress Schedule. obtain a City Business License pursuant to Chapter 5. maintenance.8. The Developer's Taxes shall be Excluded Costs. state and other taxes which may be assessed on Developer's Income from the Project. gross receipts and excise taxes directly related to Developer's Work. the "Developer's Taxes"). and property taxes on Developer's construction equipment (collectively. except as otherwise provided in the Contract Documents. All materials and equipment shall be applied.1 Developer may subcontract any portion of the Work required by this Agreement. includes Project Taxes and excludes Developer's Taxes. 5.2 Developer shall be fully responsible to City for all acts or omissions of the Subcontractors and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Developer.10. 5. If required by City. the "Project Taxes"). and Property Taxes on the Project Site applicable to the period when Developer owns the Project Site (collectively. All warranties and guarantees specifically called for by the Contract Documents shall expressly run to the benefit of City. cleaned and conditioned in accordance with the instructions of the applicable supplier. use. engineering and business license costs. Developer shall furnish reasonably satisfactory evidence (including reports of required tests) as to the kind and quality of materials and equipment. erected. 5.10.02 of the Dreams Municipal Law.1 Time is a material element in the performance of this Agreement.11 Subcontracting. except as otherwise provided in the Contract Documents. 5. Nothing in the Contract Documents .10. connected. 5. Developer shall at all times adhere to and diligently prosecute the Work in accordance with the Progress Schedule and complete the Work within the designated Milestones and any deadlines in the Contract Documents. and updating of the Progress Schedule and other scheduling information in accordance with the Progress Schedule requirements set forth in Section 9.9 Taxes. Contract Price.3 Proposed adjustments in the Progress Schedule that will delay the Completion Date shall only be made by a Change Order. which shall be paid by City. Developer shall administer and pay. shall contain a provision making them subject to all applicable provisions in this Agreement. transfer taxes associated with Developer's acquisition and transfer to the City of the Project Site.2 Developer shall be responsible for the preparation. if any. therefore. federal.5. Developer understands that its performance of the Work will constitute doing business in the City of Dreams. 5. 5. or cause to be paid all sales. 5. installed.11. Subcontracts. without prior written approval of City. and it shall. Developer shall pay all payroll and other related employment compensation taxes for Developer's employees. used. 5. Except where otherwise expressly required by applicable Laws and Regulations. or supplier.000 in any year shall incorporate the terms of the Contract Documents to the extent applicable to the Work to be performed by the Subcontractor and shall specifically bind the Subcontractor to the agreement. 5.13 Laws and Regulations. Drawings. shall expressly preserve and protect the rights of City under the Contract Documents and shall include a provision granting City the right to succeed to the interest of. Developer shall maintain and shall cause any Subcontractors to maintain. for the benefit of any such Subcontractor or other individual or entity.shall create.11.13.11. 5.5 Developer shall require that all Subcontractors for Construction of the Project shall comply with the Subletting and Subcontracting Fair Practices Act (Sections 4100 through 4114 of the Dakota Public Contracts Law) where applicable. at all times.3 Developer shall be solely responsible for scheduling and coordinating Subcontractors and other individuals aid entities performing or furnishing any of the Work under contract with Developer.12 Work Force and Equipment. a work force and equipment capable of performing the Work that is the subject the relevant Subcontracts. nor shall it create any obligation on the part of City to pay or to see to the payment of any moneys due any such Subcontractor or other individual or entity except as may otherwise be required by Laws and Regulations.1 Developer shall give all notices and comply with all Laws and Regulations which are applicable to the performance of the Work. Developer shall be solely responsible for all payments and compensation due to any Subcontractor. Each such agreement for an amount in excess of $10.4 All services performed or provided to and material and equipment supplied to Developer by a Subcontractor will be pursuant to an appropriate agreement between Developer and the Subcontractor. . Developer shall take all action necessary to prevent and/or release any liens.13. Developer shall require all Subcontractors and such other individuals and entities performing or furnishing any of the Work to communicate with City through Developer. As further set forth in this Agreement. 5. 5. any contractual relationship between City and any such Subcontractor or other individual or entity. Specifications. Developer shall bear all costs arising therefrom and such costs shall be deemed Excluded Costs. stop notices or other encumbrances that may be imposed or threatened against the Project or Project Site by subcontractors.2 If Developer performs any Work that is contrary to Laws or Regulations. or otherwise accept an assignment of such agreement in the event of a termination of this Agreement by City due to a default by Developer.14 Record Documents. 5. 5.11. 5. Developer shall maintain or cause to be maintained in a safe place at the Project Site one record copy of all Plans. City shall not be responsible for monitoring Developer's compliance with any Laws and Regulations. will be delivered to City.15.2 Developer shall comply with all applicable Laws and Regulations relating to worker health and safety in performing the Work.16 Safety Representative. injury or loss to: 5.15 Safety and Protection. and 5. These record documents together with all approved Submittals will be available to City for reference.3 Other property at the Project Site or adjacent thereto. except with respect to any Punch List item. maintaining and supervising all safety precautions and programs in connection with the Construction. and. The Developer's Representative may serve in the role of safety representative without the necessity of additional individual to the Project Site.1. Developer shall take all necessary precautions for the safety of.1 Developer shall be solely responsible for initiating. 5. any Subcontractor or any other individual or entity directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable. pavements. including a reproducible set of record drawings. shall be remedied by Developer.15. when prosecution of the Work may affect them. and shall cooperate with them in the protection.15. Developer shall be responsible for . and shall provide the necessary protection to prevent damage. Developer shall designate a qualified and experienced safety representative at the Project Site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs.15. directly or indirectly. walks. 5. with the exception of City for facilities within the Project Site. relocation or replacement in the course of Construction. in good order and annotated to show all changes made during Construction. lawns. these record documents and Submittals. injury or loss to any property caused.3 Developer shall notify owners of adjacent property and of underground facilities and utility owners. in whole or in part. structures.1.15.15. including trees. by Developer. Upon completion of the Work. 5. roadways.1. relocation and replacement of their property. 5.17 Hazard Communication Programs. within a reasonable time after their preparation. Developer's duties and responsibilities for safety and for protection of the Construction shall continue until recordation of the Grant Deed. All persons on the Project Site or who may be affected by the 5. as to which Developer's duties and responsibilities for safety and for protection of the Construction shall continue until completion of such item. All damage. Developer shall require its Subcontractors to comply with all such Laws and Regulations during the performance of the Work. removal.1 Construction. 5. shrubs. 5. utilities and underground facilities not designated for removal.Addenda. whether in storage. Change Orders.2 All Work and materials and equipment to be incorporated therein. on or off the Project Site. methods. Developer agrees that no Work shall be delayed or postponed pending resolution of any such disputes.21. claims. claims and/or disagreements.20 Prosecution of the Work. Developer shall be responsible for any Hazardous Condition at the Project Site that is caused. by any action or inaction of Developer. shall be obligated to act to prevent threatened damage. Developer shall be entitled to a Change Order pursuant to Section 11. In the event a Submittal is returned with comments to Developer within the ten-Day period. City's review and approval will be only to determine if the terms covered by the Submittals will conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. Except as provided in Sections 11. 13.coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Project Site in accordance with Laws and Regulations.18 Hazardous Conditions. which claims.4. disputes and/or disagreements shall be resolved in accordance with Section 27 of this Agreement. City's review and approval will not extend to means. Developer and the City shall meet to discuss in good faith the City's comments on the Submittal.3 to compensate it for such increased costs. 5. 5. Failure of the City to return any Submittal with comments within ten Days of its submission will result in the Submittal being deemed approved. techniques. Developer. and/or disagreements with City. provided that all amounts that are not subject to a good faith claim. or shall return the Submittal with comments identifying the specific reasons the Submittal has not been approved.3.4.1 Developer shall provide City with the Submittals for City's review and approval. Developer shall be entitled to a Change Order pursuant to Section 10. Developer shall give City prompt written notice if Developer believes that any significant changes in the Construction or variations from the Contract Documents have been caused thereby.4. Developer shall diligently carry on the Work and adhere to the Progress Schedule during all disputes. injury or loss. In the event that any such change results in a change to the Project that increases Developer's costs (including interest or other carrying charges). Within ten (10) Days of the date Developer provides any Submittal. In the event that any such comments result in a change to the Project that increases Developer's costs (including interest or other carrying charges) or increases the time required to perform the Work.3 to compensate it for such increased costs. 5. its Subcontractors or anyone else acting on behalf of Developer or for whom Developer is responsible.19 Emergencies. . 5. 5. sequences or procedures of construction or to safety precautions or programs incident thereto. without special instruction or authorization from City.2 or 13. in any way. City shall approve and return the Submittal to Developer. In emergencies affecting the safety or protection of persons or the Construction or property at the Project Site or adjacent thereto. dispute or disagreement are paid in full in a timely manner. except as specifically provided for in this Agreement.21 Submittals. general arrangement drawings. Developer shall comply with all other applicable terms and conditions of the Contract Documents 5. City shall ensure that. James and Frances Beckett. air quality permits. the present owners of the Project Site. an Authorization is required to be in the name of the City and the Developer. Developer shall transfer such Authorization to the City upon Substantial Completion. upon the expiration of the Option Agreement.24 Subject to the terms of Exhibit A.2). and (iv) the groundbreaking at the Project Site.1. (iii) the completion of Final DEQA Compliance. which option will not expire prior to the later of (i) the time when the proceeds of the Municipal Bonds become available to Developer.23 Subject to the precedence clause at Section 1.5. and (z) shall not provide for the leaseback of any portion of the Project Site to the present owners of the Project Site. 5. Developer shall be responsible for the payment of all fees for such Authorizations To the extent that any Authorization acquired in Developer's name will be required in connection with the ownership.2 City's review and approval of required Submittals shall not relieve Developer from responsibility for any variation from the requirements of the Contract Documents unless Developer has in writing called City's attention to each such variation at the time of submission and City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Submittal. 6 City's Responsibilities 6. electrical single line drawings. 6. 5. encumbrances and title exceptions. 5. .25 As soon as practicable after Final Completion. City shall pay Developer the Contract Price.3. loop flow diagrams.21. and underground structures and piping layouts. Authorizations shall be obtained in the City's name. (ii) the receipt of a Final Validation Decision. including. grant Developer an option to purchase the Project Site on the same terms set forth in the Option Agreement (except as otherwise set forth in this Section 6. including. operation or maintenance of the Project following Substantial Completion. in accordance with the Schedule of Values attached as Exhibit G to this Agreement. free and clear of all liens.22 Subject to the precedence clause at Section 1. instrumentation and control schematics.3. except where by law or practice. Developer shall secure and maintain at all times all Authorizations necessary to perform the Work. but not limited to. The option to be provided to Developer (x) shall provide for a credit against the purchase price for all option consideration paid by Developer. at a minimum. Developer will provide City with a complete set of as built drawings. except for easements existing on the date that the Option Agreement was entered into and liens for taxes not due and payable at the time the Project Site is transferred to Developer.2 The City presently has an option to purchase the Project Site pursuant to the Option Agreement. upon exercise of the option. (y) shall require that the Project Site be conveyed to the Developer. Developer shall comply with and perform the Work in accordance with the Standard Specifications applicable to the Work pursuant to this Agreement. and any revenues attributable to electricity generated during testing shall be for the account of the City.10 Validation Action. City shall take all steps necessary to enable Developer to interconnect with the City's electrical system and water system and with Southern Dakota Gas Company's gas system in accordance with the Scope of Work. methods. 6.11 Water Supply Agreement.9 Interconnection. electricity. direct or have control or authority over. City shall secure all leases and easements necessary for the design. 6. The City shall furnish fuel for testing. and Developer. operation or maintenance of the Project. regulations and ordinances identifying any components of the Work to be considered exempt from the Project Taxes. nor be responsible for. operation and maintenance of the Project on terms which are mutually satisfactory to the department. sequences or procedures of Construction or the safety precautions and programs incident thereof. Communications. a certificate complying with state and local governmental law. Developer shall provide reasonable assistance to City in connection with actions necessary to determine and obtain the necessary leases and easements 6. City shall furnish to Developer.6. Construction. techniques. City shall not supervise. DEQA Permit. within thirty (30) Days of the Effective Date. permitting. Developer shall not be obligated to commence performance of the Procurement or Construction phases until the Final Validation Decision and Final DEQA Compliance have occurred.8 Leases and Easements. (the "Validation Action").3 Developer. The City shall secure an agreement with the water department for the supply of reclaimed water and process water discharge necessary for the Construction. permitting.4 Taxes and Duties. As and . or for any failure of Developer to comply with Laws and Regulations applicable to the furnishing or performance of the Work. when. the City. As soon as practicable after the approval of this Agreement by the City Council. City will not be responsible for Developer's failure to perform or furnish the Work in accordance with the Contract Documents. and water for Construction of the Power Generation Facility from the point furnished by City. The City shall also secure the release or modification of all easements on the Project Site.5 Safety Responsibilities. 6. Developer shall cooperate with City to establish appropriate procedures and minimize the amount of such taxes to the extent reasonable and practical. and water for Construction to a single point on the Project Site and Developer shall be responsible for further routing of electricity. City shall furnish or have furnished. testing. communications. City shall communicate with Subcontractors only through 6. communications. at no cost to Developer. operation or maintenance of the Project. Developer shall provide assistance to City in drafting said validation action. as and to the extent necessary to avoid interference with the design. Where applicable.7 Utilities. 6. Developer's means. natural gas. at Developer's expense. 6. Construction. the City shall institute a validation action pursuant to Dakota State Law ║ 860 et seq. natural gas. 2. reconciling such invoice with previous invoices. 7.515. payments. Developer shall submit to City an invoice for payment of an appropriate portion of the Contract Price for the period ending on the last Day of the calendar month preceding such month ("Invoice Period"). according to the Schedule of Values. Any dispute regarding the sufficiency of such documentation shall be resolved in accordance with Section 27 of this Agreement. as follows: Engineering Phase: $7. In the event that City reasonably determines that Developer has not provided adequate documentation to accompany such invoice. 7.000 7.2. and Change Orders. City shall pay to Developer the undisputed amount of the invoice.2 City shall promptly review such invoice and documentation and Developer's progress during the Invoice Period.1. 7. 7.000 Contract Price: $43.4 of this Agreement.656.3 Within twenty-five (25) Days following City's receipt of an invoice pursuant to Section 7. less any Retention.450.2. Developer shall manage the negotiations with the department and provide all legal and technical support required in connection therewith. Any dispute regarding the amount of such progress shall be resolved in accordance with Section 27 of this Agreement. City may request additional documentation from Developer. Retention and other withholdings.621. Developer agrees to perform the Work and City agrees to compensate Developer for the costs of such Work. Retention shall be released in accordance with Section 7. 7. Developer's invoice shall be accompanied by a Payment Certificate in the form attached hereto as Exhibit C.000 Construction Phase: $7. 7. the amount .1 On or before the fifth (5th) Day of each calendar month during the performance of the Work. measured against the Progress Schedule. which is calculated to compensate Developer according to progress in completion of the Work.4 In the event City reasonably determines that Developer has not achieved the progress claimed during the Invoice Period.2. The Schedule of Values and Progress Schedule are subject to adjustment by Change Order.2 Payment The Contract Price shall be paid in accordance with the Schedule of Values attached hereto as Exhibit G.1 Contract Price. setting out the progress achieved by the Developer as of the end of such Invoice Period.23 If there is any dispute about any amount invoiced by Developer. as modified by approved Change Orders.000 Procurement Phase:$28.to the extent requested by the City.2. City shall estimate Developer's progress during the Invoice Period and shall pay Developer for the level of progress estimated by City. 7 Compensation and Payments. either because the Municipal Bonds have not been issued or sold. 7. City may. or the highest rate allowed by law. from the date payment would originally have been due pursuant to this Agreement is there had been no dispute.2. and the remainder will be paid to Developer. 2002.2. elect to terminate this deferred payment provision. or the highest rate allowed by law. shall be released and paid to .3 to the time Municipal Bond proceeds become available to it. and any disputed amount which is ultimately determined to have been payable with that invoice shall be paid with interest. City shall be entitled to defer payment of amounts otherwise due under the Procurement and Construction Phases of this Agreement to the time the proceeds from the Municipal Bonds become available.4 Retention.3. compounded monthly.3.3. in its sole discretion.4. together with accrued interest. and City shall pay Developer all such sums immediately. 7. Developer has not been paid all amounts deferred pursuant to this Section 7.33 Amounts approved by City pursuant to this Section 7.1 All invoices for payment shall be submitted. compounded monthly.3.2 In lieu of the payment required by Section 7. on or before September 1. from the date of approval until the date paid in full.5 If.3 occurring after the date on which Municipal Bond proceeds become available to the City to pay such amounts. 7. ten percent (10%) will be deducted and retained by the City ("Retention"). all sums then due Developer shall be deemed general obligations of City. 7. From each approved payment of the Contract Price pursuant to Section 7. City shall pay Developer for the Procurement and Construction Phases out of proceeds from the issuance and sale of the Municipal Bonds. or for any other reason. 7.3. but that it intends to defer payment in accordance with the terms of this Section 7.not in dispute shall be promptly paid in accordance with this Section 7. provide Developer with a written notice that it has approved all or a portion of the invoice.4. Developer may. within twenty-five (25) Days of the date it receives an invoice.2.4 All amounts deferred pursuant to this Section 7. shall be paid on the first invoice payment date pursuant to Section 7. computed at an annual rate equal to the lesser of ten percent (10%). 7. The Retention. together with all accrued interest. and any unpaid portion of the Contract Price remaining to be paid to Developer.1 General.2 Payment of Retention.2. In accordance with the applicable Constitutional debt limitation. only in accordance with this Section 7. City shall pay Developer for the Engineering Phase out of currently available general obligation funds. 7.3.3.3 Source of Funds. 7. computed at an annual rate equal to the lesser of ten percent (10%).3 shall bear interest. reviewed and approved in accordance with Section 7.2. or Municipal Bond proceeds have not been made available to City. 7. 7. a properly executed notice to stop payment is filed with City.Developer and subcontractors pursuant to Dakota Public Contract Law Section 7107. (6) any sums representing expenses. securities equivalent to the amount withheld shall be placed with the City.5 Prompt Payment to Subcontractors. the City may deduct from each payment under this Agreement an amount necessary to protect City from loss ("Other Retention") because of: (D liquidated damages which have accrued as of the date of the application for payment. 7.6 Stop Notice. liens or an\ applicable encumbrances as allowed by state law: (5) unauthorized deviations from this Agreement. (2) any sums expended by the City in performing any of Developer's obligations under the Contract Documents which Developer has failed to perform or has performed inadequately. Developer shall pay each Subcontractor undisputed amounts due for satisfactory performance of its contract no later than 15 working days from the receipt of each payment the Developer receives from the City for that Subcontractor's work. . As required by Dakota State Law Section 3262.5. including Section 1727 of the Dakota Labor Law In no case shall Other Retention pursuant to this paragraph exceed 5% of the Contract Price. Thereafter the City shall then pay such monies to the Developer as they become due for the reasonably satisfactory completion of this Agreement and the securities shall he returned the Developer. all money due for such labor or materials will be withheld from payment to Developer in accordance with applicable laws.4. The failure by the City to deduct any of these sums from a payment hereunder shall not constitute a waiver of the City's right to such sums. For purposes of this Section and Section 22300 of the Public Contracts Law the term "satisfactory completion of the contract" shall mean the time the City has issued notices of final acceptance of the Work and filed a Notice of Completion as required by this Contract. At the request and expense of the Developer. 7. The escrow agreement used for the purposes of this Section 7. 7. Prior to deducting any amount pursuant to this Section City shall first notify Developer in writing of its intention to withhold sums and the specific reasons therefor.4 shall be in the form provided by the City. losses or damages as reasonably determined h the City. In accordance with Dakota Public Contract Law Section 22300. within the time fixed by law. incurred by the City for which Developer is liable under this Agreement: and any other sums which the City is entitled to recover from Developer under the terms of this Agreement or pursuant to state law. which final acceptance shall not be unreasonably withheld or delayed. or with a state or federally chartered bank in Dakota as the escrow agent.3 Other Retentions. (3) defective Work not remedied. due to Developer's or Developer's Subcontractor's failure to pay for labor or materials used in the Work. In addition to the Retention.4. the City will permit the substitution of for any monies withheld by the City to ensure performance under this Agreement. (4) stop notices.4 Substitutions for Contract Retentions. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City. Disputes regarding amounts deducted pursuant to this Section shall be resolved in accordance with Section 27 of this Agreement. If.4. The Developer shall he the beneficial owner of any securities substituted or withheld and shall receive any interest thereon. mechanic's. 7. Acceptance of final payment of the Contract Price pursuant to Section 7. or replace any materials or equipment required to be provided under the Contract Documents which may be damaged. or property damage. or encumbrances. security interests. except (i) those claims previously made in writing and identified as unsettled at the time of submission of the final payment request. Payment shall not be construed as the transfer of ownership of any equipment or materials to City. with respect to any Punch List item. Responsibility of ownership shall remain with Developer who shall be obligated to store any fully or partially completed work or structure for which payment has been made. cause such precautions to be taken and shall charge the cost thereof against Developer. Whenever immediate action is required to prevent injury. 7. workmen's. 7. and precautions which are the Developer's responsibility have not been taken and are not reasonably expected to be taken. forfeiture or loss of the Project or the Project Site or any interest therein. 7. after a reasonable attempt to notify Developer. claims. nor shall such payment be construed to be acceptance of any of the Work. or.4.10 Warranty/Guarantee Periods Not Affected. other than (i) liens for taxes of Developer either not yet due or being contested in good faith by appropriate proceedings so long as such proceedings do not involve material risk of the sale. the cost thereof shall be charged against Developer and may be deducted from any amount due or becoming due from City.8 Precautionary Work. and (ii) indemnification claims. City may. forfeiture or loss of .12 Waiver by Developer.1 Conditioned upon payment by City of the amounts owing under this Agreement. (ii) materialmen's.2 shall constitute a waiver of all claims for payment by Developer. repairmen's or other like liens arising in the ordinary course of business securing obligations that are not overdue by more than 180 days or are being contested in good faith by appropriate proceedings so long as such proceedings do not involve any material risk of the sale. 8. prior to the completion of such item. No payment made to Developer or its sureties will constitute a waiver of the liquidated damages under Section 10. stolen or otherwise degraded in any way prior to recordation of the Grant Deed. Whenever any portion of the Work is performed by City at Developer's request.11 No Liquidated Damages Waiver. Warranty and guarantee periods shall not be affected by any payment but shall commence on the date set forth in Section 12.9 Payments Not Relief from Developer's Obligations. Payment shall not relieve Developer from its obligations under the Contract Documents. lost. Warranties and Guarantees. death.7. 7. Developer shall warrant and shall cause any Subcontractors to warrant that title to all Work will pass to City free and clear of all liens. 8 Title and Risk of Loss.7 City performed Work. including indemnification pursuant to Section 14. or may deduct such cost from any amount due or becoming due from City. City action or inaction under such circumstances shall not be construed as relieving Developer or its Surety from liability. Notwithstanding which Party has title. i. or encumbrances existing on the date that the Project Site was acquired by Developer. Promptly after all of the conditions required by the definition of Substantial Completion have been satisfied. claims. after the anticipated date therefor. and the availability of the proceeds thereof for payments pursuant to this Agreement. or other utility systems. and delay in achieving an interconnection between the Project and Southern Dakota Gas Company's system. water system.any of the Project or tie Project Site or any interest therein. 8. provided. beyond the date specified in the Progress Schedule. Developer shall execute and deliver to City all appropriate instruments necessary to transfer title to City. testing. 9. as set forth in the Schedule of Values. equipment. 8. 2003. security interests. (c) The delivery of Major Equipment after the date on which such equipment was expected to be delivered. unless extended by Change Order or in accordance with Clause (ii) or Exhibit A. . sufficient to permit Construction. as set forth in the Schedule of Values.3 Risk of Loss. ii. that no individual Day shall be counted twice in determining the length of any such extension: (a) The receipt of a Final Validation Decision after the anticipated date for such receipt. Conditioned upon payment by City of the amounts owing under this Agreement. 9.1 Substantial Completion Target Date. supplies or other property. the risk of damage to or loss of any material. and provided further that Developer shall provide a bond or other security in connection with any such liens or encumbrances. to the extent that such delay is not due to delay in ordering Major Equipment by Developer or other fault of Developer. to the extent that such delay is not the fault of Developer. whether stored on or off the Project Site shall remain with Developer until the date of recordation of the Grant Deed. 9 Substantial Completion. as set forth in the Progress Schedule. The Substantial Completion Target Date is March 31. (d) Delay in achieving an interconnection between the Project and the City's electrical system. operation and maintenance of the Project. (b) The completion of the issuance of the Municipal Bonds. as may be reasonably required by City. title to the Work shall pass to City at the time of recordation of the Grant Deed. and (iii) liens.2 Passage of Title.2 Notice of Substantial Completion by Developer. and the City shall record the Grant Deed within thirty (30) days after such execution and delivery. The Substantial Completion Target Date shall be extended on a day for day basis for any delay described herein. however. City shall identify with specificity any deficiencies. and will continue to be. City shall respond to Developer in writing and shall either accept or reject such Notice.Developer shall issue to City a Notice of Substantial Completion. prorated for the number of Days during the month prior to Substantial Completion: Month Monthly Damage Level First month of delay prior to July 2003 $50. an amount per Day determined in accordance with the following schedule of monthly damage levels.2 Schedule Damages. City shall not unreasonably withhold. 10 Liquidated Damages. In recognition of the financial issues associated with Developer's failure to achieve Substantial Completion by the Substantial Completion Target Date.000 Third month of delay prior to July 2003 $150. acknowledged and agreed that the Developer shall pay to the City as fixed and liquidated damages.000 Second month of delay prior to July 2003 $100. Developer agrees that if Substantial Completion has not been achieved by the Substantial Completion Target Date. Developer shall thereafter resubmit a Notice of Substantial Completion to City.2 are reasonable under the circumstances existing on the Effective Date Schedule Damages pursuant to this Section shall be the City's sole and exclusive remedy for any delay in achieving Substantial Completion by the Substantial Completion Target Date. If the Notice is rejected by City. Such damages are. Failure of Developer to achieve Substantial Completion by the Substantial Completion Target Dale will result in damages being sustained by City. with a list of deficiencies. condition or delay its acceptance of Developer's Notice.000 Any month starting with July 2003 $500. Within ten (10) Days after receipt of the Notice of Substantial Completion. Disputes regarding the achievement of Substantial Completion shall be resolved in accordance with Section 27 of this Agreement. within ten (10) Days of its submission. impracticable and extremely difficult to determine. 10. which shall include copies of any test reports required by the Scope of Work and set forth the date upon which the conditions for Substantial Completion were satisfied. 10. City and Developer agree to certain Schedule Damages. and may be deducted from payments due Developer if such delay occurs. The Parties acknowledge and agree that the provisions of this Section 10. Such sum is liquidated damages and shall not be construed as a penalty. will result in the Notice of Substantial Completion being deemed approved.1 General. . The aggregate total of the Schedule Damages assessed against Developer under this Agreement shall not exceed ten percent (10%) of the Contract Price. which deficiencies shall be promptly corrected by Developer. Failure of the City to reject the Notice of Substantial Completion. it is understood. and not as a penalty. Developer shall achieve Substantial Completion on or before the Substantial Completion Target Date.000 Execution of this Agreement shall constitute agreement by City and Developer that said sum is the value of the costs and actual damage caused by the failure of Developer to achieve Substantial Completion by the Substantial Completion Target Date. 11. City shall accept or dispute a material change within twenty (20) Days of receiving notice of such proposed change. Such changes shall be authorized by Change Order. Developer shall be entitled to a change to the Work and an equitable adjustment in the Contract Price. City may order additions. and Completion Date. as appropriate. Disputes regarding the impact of any change shall be resolved in accordance with Section 27 of this Agreement. a change in the law.10. Disputes regarding the impact of any change shall be resolved in accordance with Section 27 of this Agreement. Developer shall propose in writing an estimated equitable adjustment in the Contract Price and Completion Date due to any such change. Developer may make any change to the Project that enhances or does not detract from the Project. and Completion Date. increases Developer's costs (including interest or other carrying charges). on such Day. affects the Work. adversely affects Developer's ability to meet the Completion Date. (ii) historically significant artifacts. In the event and to the extent that any act or omission of City. or revisions in the Work. Developer shall propose in writing a change to the Work and an equitable adjustment in the Contract Price.3 Other Changes. 11 Changes.2 Changes for City's Convenience.1 Changes for Developer's Convenience. or (iii) Hazardous Conditions.3 No Liquidated Damages During Payment Delay. Notwithstanding the foregoing. and Completion Date. or any error or change in City provided information. as appropriate. Material changes shall be authorized by Change Order. and Completion Date due to any such change. Developer shall be entitled to change to the Work and an equitable adjustment in the Contract Price. Developer shall not make a material change to the Project without the prior written consent of City. adversely affects Developer's ability to meet the Completion Date. and an equitable adjustment in the Contract Price. and City shall accept or dispute such proposal in writing within thirty (30) Days of receipt of Developer's proposal. no liquidated damages shall be due with respect to any Day if. deletions. Developer shall propose in writing a change to the Work and an equitable adjustment in the Contract Price. and Completion Date due to any such differing . there are any amounts due and payable hereunder which have not been paid by the City and which are not then subject to a good faith dispute with the City and not otherwise being challenged in good faith by the City. Developer shall be entitled to a change to the Work. as appropriate. increases Developer's costs (including interest or other carrying charges). If such change increases Developer's costs (including interest or other carrying charges).4 Differing Conditions. 11. City shall accept or dispute such proposal in writing within twenty (20) Days of receiving notice of such proposed change. or a Force Majeure Event affects the Work. Disputes regarding the impact of any change shall be resolved in accordance with Section 27 of this Agreement. or adversely affects Developer's ability to meet the Completion Date. 11. Such changes may require an adjustment to the Contract Price or Completion Date. 11. In the event and to the extent that discovery on the Project Site of (i) conditions that Developer could not have reasonable foreseen. that the Work shall be performed in a skillful and workmanlike manner. Removal or Acceptance of Defective Construction. either expressly or impliedly. All claims by Developer for adjustments to Contract Price. Upon actual discovery. Disputes regarding the impact of any change shall be resolved in accordance With Section 27 of this Agreement.5 DISCLAIMER OF WARRANTIES. All warranties guarantees under this Agreement shall commence upon Substantial Completion. Developer guarantees and shall have any Subcontractors guarantee. Subject to Section 13. EXCEPT AS SET FORTH IN THIS AGREEMENT. or Milestones under this Section 11.6 Changes Beyond the Scope of the Work.5 shall be supported by reasonable documentation.conditions City shall accept or dispute such proposal in writing within twenty (20) Days of receipt of Developer's proposal.1 Notice of Nonconformance.6. supplies and equipment manufactured by third parties and furnished and installed by any Subcontractors in the performance of the Work where such materials. EXPRESS OR IMPLIED. Developer shall assign to City all unexpired Subcontractor warranties upon and concurrently with Developer's submission to the City of the Grant Deed. 12. 12. INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 12. . provided. Developer shall cause all Subcontractor and Supplier warranties to be assignable to City or City's designee. free from defects in workmanship. 12 Warranties and Guarantees. Supplies and Equipment. 11.2 Assignment of Subcontractor Warranties. that neither Party shall be obligated to agree to such a change. City shall give prompt written notice to Developer of any fault or defect in the Construction within ten (10) working days after City has actual knowledge of any such defective Construction. All defective Construction may be rejected. 13.3 Warranty/Guarantee Periods Commencement. and in conformance with the Contract Documents.5 Supporting Documentation. however. contrary to the recommendation of Developer. 12. In the event that either Party desires a change to the Project that is in an area not covered by 'the present Scope of Work. the materials in or workmanship of materials. corrected or accepted a provided in this Section 13. Completion Date.1 Developer's Guarantee. the Parties will meet in good faith to discuss the requested change. supplies and equipment are chosen or required by City. THERE ARE NO REPRESENTATIONS OR WARRANTIES. WITH RESPECT TO THE PROJECT. and 12. 11. 13 Tests and Inspections: Correction. Developer does not guarantee or warrant. subject to the other provisions of this Agreement.4 City Required Materials. 13. Developer.3. unless Developer has given City timely notice of Developer's intention to cover the same and City has not acted with reasonable promptness in response to such notice. Developer shall pay all costs and damages as an Excluded Cost caused by or resulting from such uncovering. and (ii) maintain and make available to City adequate records of such inspections. architects. 13. be uncovered for observation at Developer's expense as an Excluded Cost. exposure. exposure and observation of the work. that portion of the Construction in question. (including but not limited to all fees and charges of engineers.2 Access to Construction. observation. 13. all court or arbitration or other dispute resolution costs. other representatives and personnel of City. If it is found that such Construction is defective. Developer shall provide and maintain a quality control system acceptable to City. City. . inspection and testing and of reasonably satisfactory replacement or rework. it must.2 If City considers it necessary or advisable that covered Construction be observed by City or inspected or tested by others. If it is found that such Construction is not defective. 13.4 Uncovering Construction.4.3 Inspections. if requested by City. at City's request. Developer shall provide them proper and safe conditions for such access and advise them of Developer's Project site safety procedures and programs so that they may comply therewith as applicable. all court or arbitration or other dispute resolution costs. tested or approved by Developer and without written concurrence of City. if requested by City. exposure. it must. inspection and testing and of reasonably satisfactory replacement or rework. independent testing laboratories and governmental agencies with jurisdictional interests will have access to the Construction at the Project Site at reasonable times for their observation. City's consultants. attorneys and other professionals. expose or otherwise make available for observation.1 If any Construction is covered contrary to the written request of City. inspection and testing. material and equipment. 13. tested or approved is covered by Developer without having been inspected. (including but not limited to all fees and charges of engineers.13. City shall pay all costs and damages caused by or resulting from such uncovering. and all costs of repair or replacement of work of others) and shall adjust the schedule Milestones and Substantial Completion Target Date to account for the delay caused by the uncovering. architects.4. shall uncover.1 Developer shall (i) maintain an adequate inspection system and perform such inspections as will assure that the Work performed conforms to Contract Documents and all applicable Laws and Regulations.2 If any Construction (01 the construction work of others) that is required by the Scope of Work or any applicable Laws and Regulations to be inspected. and all costs of repair or replacement of work of others). observation. inspection or testing as City may require. attorneys and other professionals.3. furnishing all necessary labor. 13. be uncovered for City's observation and recovered at Developer's expense as an Excluded Cost. and (ii) satisfactorily correct or remove and replace any damage to other Construction or the work of others resulting therefrom. either correct all defective Construction. such defect or deficiency is to be addressed exclusively pursuant to the warranty provided by the equipment supplier. City will have authority to disapprove or reject defective Construction and will have authority to require special inspection or testing of the Construction whether or not the Construction is fabricated. Developer shall bear all direct costs of such correction or removal as Excluded Costs made necessary thereby. if the Construction has been rejected by City. attorneys and other professionals and all court or arbitration or other dispute resolution costs) and Developer shall pay such costs as Excluded Costs. and all costs and damages caused by or resulting from such removal and replacement (including but not limited to all fees and charges of engineers.7 Acceptance of Defective Construction. installed or completed. and City's remedy shall be limited to the remedy available pursuant to the supplier's warranties or guarantees.5 Correction or Removal of Defective Construction. architects. remove it from the Project Site and replace it with non defective Construction. a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Construction. attorneys and other professionals. all court or arbitration or other dispute resolution costs.6 Corrective Period. Developer's obligation in that circumstance will be limited to notifying the supplier of such Major Equipment. or in an emergency where delay would cause serious risk of loss or damage. the appropriate amount will be paid by Developer to City Disputes regarding the reasonableness of City's costs shall be resolved in accordance with Section 27 of this Agreement. City prefers to accept such defective Construction. as directed. City may do so. If instead of requiring correction or removal and replacement of defective Construction. If required by City. to the extent that any deficiency identified pursuant to this Section involves a defect or deficiency in a piece of the Major Equipment. Notwithstanding the foregoing. 14 Indemnities.13. without cost to City and in accordance with City's written instructions. or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or warranty required by the Contract Documents or by any specific provision of the Contract Documents. If Developer does not promptly comply with the terms of such instructions. City shall provide Developer with a written summary of all costs attributable to City's evaluation of whether to accept such defective Construction (such costs to include but not be limited to all fees and charges of engineers. any Construction is found to be defective. If within one (D year after the date of Substantial Completion. and City shall be entitled to net such Excluded Costs against any amounts otherwise owing to Developer. (i) correct such defective Construction. If the acceptance occurs after final payment of the Contact Price pursuant to Section 6. If any such acceptance occurs prior to final payment of the Contract Price pursuant to Section 6.2. 13. 13. and all costs of repair or replacement of work of others) will be paid by Developer as an Excluded Cost. whether or not fabricated. installed or completed. City may have the defective Construction corrected or the rejected Construction removed and replaced. . architects.5. Developer shall promptly. if it has been rejected by City.2. Developer shall promptly. remove it from the Project Site and replace it with Construction that is not defective. or. or.5. or other legal proceedings. suits. its directors. if any. its directors. costs. expenses. Developer shall defend. subcontractors. or attributable to the destruction of or damage to property . demands. or attributable to the destruction of or damage to property . loss. officials. actions or other legal proceedings. actions or other legal proceedings of every kind that may be brought or instituted against Developer. officers. damage or injury of any kind. liability. City shall defend. any and all such aforesaid suits. errors or omissions of City. in any manner arising out of or incident to any intentional or negligent acts. its officials. its directors. officers. its directors. in law or equity. award or decree that may be rendered against City. its directors. City shall reimburse Developer. including wrongful death. officers. attributable to injury to or death of persons. employees and agents. its directors. attributable to injury to or death of persons. injuries. any and all such aforesaid suits. indemnify and hold City. officers. City shall also reimburse Developer for the cost of any settlement paid by Developer arising out of any such claims. officials. officials. consultants or agents in the performance of this Agreement. damage or injury of any kind. employees. loses. expense and risk. Developer shall defend.1 Developer's Indemnity. expenses. demands. employees and agents in any such suits. indemnify and hold Developer. costs. in law or equity. officers. conditioned or delayed) and at Developer's own cost. employees and gents free and harmless from any and all claims. employees and agents free and harmless from any and all claims. causes of action. conditioned or delayed) and at City's own cost. City shall defend. officers. officers. officials. demands. injuries. officials. consultants or agents in the performance of this Agreement. Such reimbursement shall include payment for Developer's attorney's fees and costs.14. employees and agents in any such suits. or other legal proceedings. damages. employees. errors or omissions of Developer. its directors. suits. including without limitation the payment of all consequential damages (other than lost profits) and reasonable attorneys fees. actions or other legal proceedings of every kind that may be brought or instituted against City. employees and agents for any and all legal expenses and costs. officers. officers. including expert witness fees. with counsel approved by the Developer (which approval shall not be unreasonably withheld. officers. its officials. Developer shall also reimburse City for the cost of any settlement paid by City arising out of any such claims. expert witness fees and other related costs and expenses of defense. Such reimbursement shall include payment for City's attorney's fees and costs. its directors. including without limitation the payment of all consequential damages (other than lost profits) and reasonable attorneys fees. expenses. officials. subcontractors. received by the City. in any manner arising out of or incident to any intentional or negligent acts. actions. actions or other legal proceedings. employees and agents. including wrongful death. causes of action. City shall pay and satisfy any judgment. including expert witness fees. officials. expenses. demands. officers. employees and agents for . expert witness fees and other related costs and expenses of defense. incurred by each of them in connection therewith or in enforcing the indemnity herein provided. officials. employees and agents. Developer shall pay and satisfy any judgment. including expert witness fees. damages. Developer shall reimburse City. loses. officials.2 City's Indemnity. causes of action. causes of action. costs. 14. liabilities. costs. liabilities. loss. actions. expense and risk. liability. with counsel approved by the City (which approval shall not be unreasonably withheld. its directors. Developer's obligation to indemnify shall not be reduced by insurance proceeds. award or decree that may be rendered against Developer. product or device is specified in writing by City for use in the performance of the Construction and if to the actual knowledge of City its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others. attorneys and other professional and all court or arbitration or other dispute resolution costs) arising out of or resulting from any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention. either to procure for City the rights alleged to have been infringed or to modify the infringing item in a way reasonably satisfactory to City.1 License Fees and Royalties. City's acceptance of Developer's engineering design and or proposed or supplied materials and equipment shall not be construed to relieve Developer of any obligation hereunder. 14.3 Intellectual Property Infringement. including expert witness fees. process. from and against all claims. operation or enjoyment of the Project or any part thereof as a result of such claim as set forth in Section 14. Developer shall defend.2 Indemnity Against Intellectual Property Infringement. design.3.3. such infringement or alleged infringement shall be addressed exclusively pursuant to the warranty provided by the equipment supplier. To the fullest extent permitted by Laws and Regulations. 14. 14. design process. In the event of any claim or legal action for infringement. agents and employees. product or device which is the subject of patent rights or copyrights held by others. at its option. Developer shall promptly arrange to have such injunction removed at no cost to City. in the reasonable exercise of its judgment. incurred by each of them in connection therewith or in enforcing the indemnity herein provided.3.3.4 Developer's Continuing Obligation. its officers.any and all legal expenses and costs. to the extent that any infringement or alleged infringement involves only a piece of Major Equipment.3. 14. 14. product or device not specified in writing by City. so that it becomes noninfringing. and at its expense. Developer shall pay all license fees and royalties and assume all costs incident to the performance of the Work or the incorporation in the Work of any invention. employees and agents. Developer shall have the right. 14. process. design.5 Limitations and Conditions.6 Notwithstanding the foregoing. officials.2 or legal action or any litigation based thereon. officers. the existence of such rights shall be disclosed to Developer by City. . and City's remedy shall be limited to the remedy available pursuant to the supplier's warranties or guarantees. indemnify and hold harmless City. architects. Developer's obligation in that circumstance will be limited to notifying the supplier of such Major Equipment.3 Injunction. received by the Developer. City's obligation to indemnify shall not be reduced by insurance proceeds. If City is enjoined from completion of the Project or any part thereof or from the use. 14. if any. If a particular invention. losses and damages (including but not limited to all fees and charges of engineers. its directors.3. costs.3. 14. employees and agents against and from any claims. cause of action. in each case. ║ 9601 et seq.4 Environmental Indemnities. causes of action. the Parties acknowledge that the activities of Developer to prepare the Project Site and construct the Project may result in the movement or excavation of contaminated soils and groundwater. employees and agents against and from any claims. demands. causes of action.4. to the extent such Environmental Condition and/or violation of Environmental Law is caused by the gross negligence or willful misconduct of Developer. to the extent such Environmental Condition is caused by the gross negligence or willful misconduct of Developer. 42 U. to the extent such Environmental Condition and/or violation of Environmental Law is caused by the gross negligence or willful misconduct of Developer. attributable to (a) any Environmental Condition. dewatering of excavations.S. existing as of and/or prior to the date that Developer takes possession of the Project Site. in each case. in each case. employees and agents against and from any claims.4. officers.18. and could cause existing contamination to be relocated or released into previously unaffected areas. officers.3 Notwithstanding Section 5. existing as of and/or prior to the date that Developer takes possession of the Project Site.2 The City shall indemnify and hold harmless Developer and its directors.4. even if not discovered until after the date that Developer takes possession of the Project Site or (c) any Environmental Condition and/or violation of Environmental Law existing after the date that Developer takes possession of the Project Site. demands. costs. including direct liability of Developer as an arranger or other category of liable party under the Comprehensive Environmental Response. Compensation and Liability Act. arising after the Developer transfers the Project and the Project Site to the ('its: 01 ( Environmental Condition and/or violation of Environmental Law arising after the Developer transfers the Project and the Project Site to the City. expenses.. resulting from earthmoving activities. 14. loss. in law or equity. damage or injury of any kind.C. officers.14. liability. relating to or originating from property\ adjacent to the Project Site (each a "Claim") except. liability. except. damage or injury of any kind. officials. officials. The City shall indemnify and hold harmless Developer and its directors. in law or equity attributable to (a) any Environmental Condition. expenses. in law or equity.1 The City shall indemnify and hold harmless Developer and its directors. costs. expenses. The Parties intend that the City shall bear responsibility for all costs and liabilities incurred by the City or Developer in conducting such activities. arising after the Developer transfers the Project and the Project Site to the (h) any violation of an Environmental Law with respect to the Project Site or activities conducted thereon. liability. loss. costs. loss. . and all other activities associated with Developer's Construction of the Project or preparation of the Project Site. 14. damage or injury of any kind. relevant to the Project Site or an\ activity conducted thereon. even if not discovered until after the date that Developer takes possession of the Project Site (h) any violation of an Environmental Law with respect to the Project Site or activities conducted thereon. relevant to the Project Site or any activities conducted thereon. officials. relating to or originating from property adjacent to the Project Site (each a "Claim") except. demands. In addition.2. collapse. Developer shall maintain limits no less than: (D General Liability: $5.1 Minimum Scope of Insurance. Developer shall not allow any Subcontractor to commence Work on any subcontract until it has provided evidence reasonably satisfactory to the City that the subcontractor has secured all insurance required under this Section. Developer shall.000. costs.000 per accident for bodily injury and property damage.14. employees and agents against and from any claims.000. Developer shall also require all of its Subcontractors to procure and maintain the same insurance for the duration of this Agreement. Such insurance shall meet at least the following minimum levels of coverage: 15. except. or is the responsibility of the City or is subject to indemnification by the City pursuant to Section 14. including explosion.000. Developer shall not commence Work under the Construction Phase of this Agreement until it has secured all insurance required under this Section. officers. loss.2 Minimum Requirements.2. in each case. or (b) any violation of an Environmental Law attributable to any activities conducted on the Project Site by the Developer while the Developer is the owner of the Project Site (each a "Claim"). (3) Workers' Compensation and Employers' Liability: Workers' Compensation insurance as required by the State of Dakota and Employer's Liability Insurance. If Commercial General Liability Insurance or other form with a general aggregate limit is used. (3) Workers' Compensation and Employer's Liability: Workers' compensation limits as required by the Labor Law of the State of Dakota. liability. demands.000 per occurrence for bodily injury. expenses. attributable to (a) any Environmental Condition attributable to any activities conducted on the Project Site by the Developer while the Developer i the owner of the Project Site.1 Time for Compliance. at the City's expense. 15. 15 Insurance.4. causes of action. its agents.4. Completed value of the project. if available and if requested by the City). code 1 (any auto). damage or injury of any kind. to the extent such Environmental Condition and/or violation of Environmental Law is caused by the gross negligence or willful misconduct of the City. in law or equity. 15. officials. (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001.4 Developer shall indemnify and hold harmless the City and its directors. and (4) Builders '/All Risk. personal injury and property damage. at its expense.3. . procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by the Developer. employees or subcontractors.000 per accident for bodily injury or disease. and (4) Builders All Risk: Builders'/All Risk insurance covering for all risks of loss. Employers Liability limits of $1.(2) Automobile Liability: $1. representatives. 15.2 Minimum Limits of Insurance. either the general aggregate limit shall apply separately to this Contract/location or the general aggregate limit shall be twice the required occurrence limit. underground excavation and removal of lateral support (and including earthquakes and floods. Coverage shall be at least as broad as the latest version of the following: (D General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 000D.. its directors. employees. officials. officers. and (2) any failure to comply with reporting or other provisions of the policies. employees.4 All Coverages. shall not affect coverage provided to the City. officers. employees. including breaches of warranties. Each insurance policy required by this Agreement shall be endorsed to state that: (D coverage shall not be suspended. loading or unloading of any auto owned. use. and shall stand in an unbroken chain of coverage excess of the Developer's scheduled underlying coverage. the insurer shall waive all rights of subrogation against the City. officials. or Developer shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: 15. its directors. agents and volunteers shall be covered as additional insureds with respect to the Work or operations performed by or on behalf of the Developer.3. has been given to the City. officers. agents and volunteers. officials. officers. its directors. officers. officers. officials. its directors. employees.2 Automobile Liability.3. officers. hired or borrowed by the Developer or for which the Developer is responsible. maintenance. employees. reduced or canceled except after thirty (30) Days prior written notice by certified mail. officials. that do not also apply to the Developer. agents and volunteers. employees. . its directors. agents and volunteers shall be excess of the Developer's insurance and shall not be called upon to contribute with it.1 General Liability. The builders'/all risk insurance shall provide that the City and Developer be named as loss payees. 15. leased. Any insurance or self-insurance maintained by the City. (D The City.15. agents and volunteers. such insurance shall not contain any special limitations on he scope of protection afforded to the City. its directors. and shall stand in an unbroken chain of coverage excess of the Developer's scheduled underlying coverage. The insurance policies shall contain the following provisions. and (2) the insurance coverage shall be primary insurance as respects the City. its directors. employees. agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Developer. return receipt requested. its directors. In addition.3 Workers' Compensation and Employers Liability Coverage.3. agents and volunteers shall be excess of the Developer's insurance and shall not be called upon to contribute with it. officers. officers.3. employees. employees.3 Insurance Endorsements. officials. agents and volunteers shall be covered as additional insureds with respect to the ownership. parts or equipment furnished in connection with the Work. including materials.4 Builders'/All Risk Policy Requirements.5 Separation of Insureds: No Special Limitations. Any insurance or self-insurance maintained by the City. agents and volunteers. officials. voided. 15. In addition. 15. All insurance required by this Section 15 shall contain standard separation of insureds provisions. 15. 15. The insurer shall agree to waive all rights of subrogation against the City. (D The City. officials. operation. its directors. officials. and (2) the insurance coverage shall be primary insurance as respects the City. 9 Subcontractors. at any time. for a period of three (3) years following Final Completion. condition or delay its acceptance of such certificate or endorsement. the City shall respond to Developer in writing and shall either accept or reject such certificate or endorsement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. 15.15.000 per occurrence. Best's rating no less than A:VIII.000. All certificates and endorsements must be received and approved by the City before the Work commences. Should. Developer shall execute and provide to City a statutory Payment Bond pursuant to Dakota State Law ║ 3247 and 3248. with a list of deficiencies. Within ten (10) Days after receipt of any such certificate or endorsement. Developer shall renew or replace the effected Bond within 10 Days of receiving notice from City. Developer shall thereafter resubmit such certificate or endorsement to the City. and reasonably satisfactory to the City. All such certificates and endorsements shall be on forms reasonably satisfactory to the City.6 Professional Liability Insurance. in City's sole opinion. If the certificate or endorsement is rejected by the City. 15. certified copies of all required insurance policies. in the amount of 100% of the sum of the prices for the Procurement and Construction Phases of the Work. 16. engineers.M. All Subcontractors shall meet the requirements of this Section before commencing Work.2 Payment Bond. will result in the certificate or endorsement being deemed approved. 16. Prior to commencing work on the Procurement Phase. The City reserves the right to require complete. licensed to do business in Dakota. Developer shall execute and provide to City a Performance Bond in an amount equal to fifty percent (50%) of the sum of the prices for the Procurement and Construction Phases. errors and omissions liability Insurance with a limit of not less than $5.8 Verification of Coverage. Developer shall furnish the City with original certificates of insurance and endorsements effecting coverage required by this Agreement within ninety (90) days after the effective date. the City shall identify with specificity any deficiencies.1 Performance Bond. any surety be found to be unsatisfactory. Insurance is to be placed with insurers with a current A. The City shall not unreasonably withhold.7 Acceptability of Insurers. 15. 16 Bonds. Failure of the City to reject the certificate or endorsement.3 Bond Provisions. consultants or design professionals shall also procure and maintain. In the event the surety or Developer intends to reduce or . within ten (10) Days of its submission. No payment will be made to Developer for the Procurement or Construction Phases until such Bond has been received by the City. and in substantially the form of American Institute of Architects form AIA 312. which deficiencies shall be promptly corrected by Developer. and in substantially the form of American Institute of Architects form AIA 312. All coverages for Subcontractors shall be subject to all of the requirements stated herein. All architects. 16. 16. shall be accepted. as referred to above).cancel any required Bond. To the extent. the insurer will be considered qualified if it is in conformance with Section 995. (iii) Final DEQA Compliance cannot be achieved due to a successful . City shall pay Developer for: (I) Work completed to date of such termination. and proof of such is provided to the City. (2) other costs incurred. the Developer shall. an increase in the Contract Price. warehousing. in its sole and absolute discretion. as a result of: () an adverse Final Validation Decision invalidating this Agreement. Developer shall cease and shall cause to be ceased all Work on the Project. as provided herein. If the Developer fails to furnish any required Bond. Best's rating no less than A:VIII and reasonably satisfactory to the City. provided that the City has used all reasonable efforts to obtain a favorable Final Validation Decision. To the extent available. A termination fee shall not apply in the event this Agreement is terminated. 17. except as otherwise directed by City. equipment. terms. will release the surety.1. upon request of the City. construction equipment and machinery.4 Surety Qualifications. if any. 17. or modifications of the time.M. cause the amount of the Bond to be increased accordingly and shall promptly deliver reasonably satisfactory evidence of such increase to the City.1 Termination by City. extensions of time. as defined in Law of State Procedure Section 995. If the Agreement is so terminated. or conditions of payment to the Developer. In the event City. including costs of materials. If a Dakota admitted surety insurer issuing Bonds does not meet these requirements. (3) reasonable demobilization expenses (4) a termination fee equal to eight percent (8%) of the amount by which the Contract Price exceeds the amounts previously paid to Developer (other than amounts paid pursuant to Section 16. at least thirty (30) Days prior written notice shall be given to the City. the City may terminate this Agreement for cause. that the Contract Price is increased in accordance with this Agreement.660 of the Dakota Law of State Procedure. Only Bonds executed by an admitted surety insurer.120. The surety must be a Dakota admitted surety with a current A. the Bonds shall further provide that no change or alteration of this Agreement (including. City may terminate this Agreement upon thirty (30) Days written notice to Developer. No further payments shall be deemed due or will be made under this Agreement until any replacement Bonds required by this Section are accepted by the City. tools. abandons or indefinitely postpones the Project. and Developer shall post acceptable replacement Bonds at least ten (10) Days prior to expiration of the original Bonds. 17 Termination.1 For Convenience. engineering and other services. Upon termination of this Agreement. provided that the City has used all reasonable efforts to issue the Municipal Bonds.1(3). without limitation. transfer of materials or other items for which City has not compensated Developer. (ii) the Municipal Bonds not being issued by the City. for any portion of the Work not performed prior to Developer's receipt of the notice of termination. City shall pay Developer for: (1) Work completed to date of such termination. If City fails to cure or submit a plan for cure within ten (10) Days.2 For Cause. 17. Upon Termination by Developer pursuant to this Section. as the case may be. tools.1. (2) other costs incurred. is not granted by James and Frances Beckett to Developer. make good such deficiencies and deduct the cost thereof from the Contract Price or from any payment due or coming due Developer or. In the event of termination pursuant to Clause (i). equipment. occur after the anticipated date therefor as set forth in the Schedule of Values. engineering and other services. without prejudice to any other remedy. that the City shall pay Developer for any Work performed prior to the date of such termination. City shall n(t pay Developer for any loss of profits. construction equipment and machinery thereon owned or contracted for by Developer and finish the Work.challenge. provided that the City has used all reasonable efforts to achieve Final DEQA Compliance. Developer shall have thirty (30) Days from the date notice is received to cure or submit a plan for cure reasonably acceptable to City. equipment. Developer shall notify City in writing of its intent to terminate and the basis for termination. construction equipment and machinery. City shall have ten (10) Days from the date notice is received to cure or submit a plan for cure. City shall notify Developer in writing of its intent to terminate and the basis for termination. the SCAQMI) Air Permit is received or the Final DEQA Compliance is achieved after the anticipated date for such receipt or achievement. tools. as set forth in the Schedule of Values. provided that the City has used all reasonable efforts to cause such a grant to take place and/or (v) an Operation and Maintenance Agreement is not mutually agreed upon between the parties as set forth in Section 3. City may terminate this Agreement for cause in the event Developer fails to perform any of its material obligations hereunder. or (iv) in the event that the issuance of the Municipal Bonds. and the availability of the proceeds thereof for payments pursuant to this Agreement.2 Termination by Developer. warehousing. If Developer fails to cure or submit a plan for cure within thirty (30) Days. to the extent that such delay is not the fault of Developer. to the extent that such delay is not the fault of Developer.2. transfer of materials or other items for which City has not compensated Developer. 17. (iii) in the event that a Final Validation Decision is received. terminate the Agreement and take possession of the Project Site and all materials. City may.2. reduced by the amount of any damages suffered by the City as a result of the vents giving rise to such termination. however. administration or overhead expenses. including costs of materials. provided. . Except to the extent provided herein. at City's option. Developer may only terminate this Agreement for cause (i) in the event City fails to perform any of its obligations under Section 6. in accordance with Section 6. (ii) in the event that Developer discovers any Environmental Condition on the Project Site that cannot be remedied in a manner reasonably satisfactory to Ii)developer. (iv) an option to purchase the Project Site. Developer may terminate this Agreement. submit to the City the Grant Deed executed by authorized representatives of Developer. et seq. employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. color. et q. In the event of any such force majeure delay. 20. which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. and upon payment by City of any amounts due Developer pursuant to this Section 17 and other provisions of this Agreement.2 Whenever either Party is required to commence or complete any action . ("Prevailing Wage Laws"). Developer shall make copies of the prevailing rates of per diem wages for each craft. as well as Dakota Law of Regulations. In the event this Agreement is terminated pursuant to this Section 17. 19 Nondiscrimination. transfer. Developer shall defend.000 or more. the affected Party shall proceed with due diligence to alleviate such delay and continue the performance of all obligations hereunder.2(3).1 Neither Party shall be responsible for any delay in the performance or progress of the Work or liable for any costs or damages sustained by City or Developer resulting from any Force Majeure Event. (4) a termination fee equal to eight percent (8%) of the amount by which the Contract Price exceeds the amounts previously paid to Developer (other than amounts paid pursuant to Section 17. upgrading.(3) reasonable demobilization expenses. the obligation to pay money in a timely manner for Work actually performed shall not be excused due to an event of Force Majeure and shall not be subject to suspension. and shall post copies at the Developer's principal place of business and at the Project Site. classification or type of worker needed to execute the Work available to interested parties upon request. Title 8. Since the Work is being performed as part of an applicable "public works" project. its elected officials. within ten (10) Days of receiving. and since the total compensation is $1. et g. all activities related to initial employment. layoff or termination. as the case may be. gender. or giving. demotion. religion. national origin. Developer represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race. notice of termination. and 1770. officers. ancestry. Developer agrees to fully comply with such Prevailing Wage Laws. 17. as defined by the Prevailing Wage Laws... except that a Force Majeure event shall entitle Developer to a Change Order pursuant to Section 11.. Developer is aware of the requirements of Dakota Labor Law Section 1720. recruitment or recruitment advertising. 20 Force Majeure.3 of this Agreement.3 Effect of Termination. Notwithstanding the foregoing. Developer shall. but not be limited to. City shall provide Developer with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. age or other interests protected by the State of Federal Constitutions. indemnify and hold the City. Section 1600. 20. Such nondiscrimination shall include. 18 Prevailing Wages. in all inventions. discoveries. instruments. that by incorporating such property into the deliverables of the Project in the performance of its obligations hereunder. customer and prospective customer lists. photographs. as amended. without limiting the foregoing. however. designs. Anything in this Agreement to the contrary notwithstanding. Developer's engagement by City and. proposals. City may withhold any payments due Developer until the return of these materials and any other materials of City or its customers. applications. Developer shall retain its preexisting rights in its standard drawing details.1 Confidentiality. Rights to intellectual property utilized or modified in the performance of the Work shall remain the property of Developer. manuals. as the case may be. Developer agrees that it is the desire and intent of the Parties hereto that all work performed by Developer under this Agreement shall constitute a "work made for hire" for purposes of the United States Copyright Act of 1976. knowledge ad data originally conceived by Developer during its performance of the Work. trade secrets and trademarks.within a specified period or by a specified deadline. however.1. databases. Developer. letters. provided. plans. oaths or other writings necessary or desirable to further evidence the assignment described in Section 21. records. 21.3 Return of Materials. documents. codes. reports. 22 22. catalogs and writings and all copies thereof. printouts.2 Supporting Documents. but not limited to. by operation of law or otherwise. 21. Developer shall be deemed to have granted City a perpetual "right to use" such intellectual property. 21 Proprietary Rights. developed. information. provided. upon expiration or termination of this Agreement. Developer might otherwise have. strategies. correspondence. The provisions of this Section 21 shall survive expiration or termination of this Agreement. magnetic tapes. 21. all patents. shall be extended by an amount equal to the duration of any event of Force Majeure occurring or continuing during such period or prior to such deadline. copyrights. drawings.1 Assignment of Rights. such period or deadline. prepared or created during. 21. specifications. Developer shall promptly deliver to City any and all such documents or materials. computer programs. flowcharts.5 Survival. memoranda. blueprints. computer software and any other proprietary property.4 Preexisting Rights. that Developer may retain one (D office copy of any materials produced by Developer for City pursuant to the terms of this Agreement which shall continue to be subject to the terms of this Agreement. Developer agrees to hold in confidence for a period of two (2) . ideas. Developer hereby assigns to City all proprietary rights including. techniques. 21. notes. samples. Developer further agrees to execute and deliver any additional documents. Developer agrees to return to City all computer software. Except for those items which have previously been returned to City prior to the expiration or termination of the Agreement. works. or (iii) Information received by a Party from a third party having no obligation of secrecy with respect thereto. or order. except as contemplated by this Agreement and the Operation and Maintenance Agreement to be entered into pursuant to Section 3. Developer further agrees. Developer warrants.4 Required Disclosure. 22. present or contemplated. to require its subcontractors. photographs of the project. kickbacks. to require its Partners and contractors to enter into such appropriate nondisclosure agreements relative to such confidential information. or any publicity pertaining to the Work or the Project in any magazine.years from the date of expiration or termination of this Agreement any confidential information supplied to Developer by the City or its contractors and designated in writing as confidential by the supplier thereof. provided. 22. contractors. suppliers and employees to enter into appropriate nondisclosure agreements relative to such confidential information.3 Publicity. television or radio production or other similar medium without the prior written consent of the City. that. or in the course of administration or judicial proceedings. it has no interest. Developer shall not use City's name or insignia. or (ii) Information which the receiving Party can show was in its possession prior to receipt thereof from the disclosing Party. except by the receiving Party's wrongful act.2(i). to the extent requested by the supplier of such information. Developer's employees.2. in the Work or the Project. or other unlawful consideration. rebates. or other agents and designated in writing as confidential by the supplier thereof. 23 Conflict of Interest. regulation. to disclose information that is otherwise required to be maintained in confidence pursuant to this Section 22. 22. to the extent requested by the supplier of such information. including. may make disclosure notwithstanding the provisions of this Section 22.3 Exceptions. Developer shall be allowed to use the Project in references. prior to the receipt thereof. newspaper. vendors. Any Party required by law. qualification lists and similar business development documents and presentations without written consent from the City. The City agrees to hold in confidence for a period of two (2) years from the date of expiration or termination of this Agreement any confidential information supplied to the City by Developer. . The City further agrees. the Party making the disclosure shall immediately notify the other Party of the requirement and the terms thereof prior to the submission and shall cooperate to the maximum extent practicable to minimize the disclosure of the information. 22. by execution of this Agreement. rule. The provisions of this Section 22 shall not apply to information within any one of the following categories or any combination thereof: (i) Information which was in the public domain prior to the receiving Party's receipt or which subsequently becomes part of the public domain by publication or otherwise. but not limited to. trade paper. Any practices that may result in unlawful activity. prior to the receipt thereof. loss of data.are expressly prohibited.2 or amounts paid to third parties as described in Sections 14 may be construed to cover such damages. For breach or violation of this warranty. including without limitation Schedule Damages and indemnities. incidental. during the term of his or her services with the City. shall either party hereto or any Contractor or Subcontractor be liable for indirect. City shall have the right to rescind this Agreement without liability. costs in excess of estimates. special. governmental penalties or sanctions imposed on City and/or claims of customers of the other party for such damages. shall have any interest in the Work. consequential or exemplary damages. official. 24 Solicitation. whether as a result of breach of contract. ordinances and regulations. the loss of profits or revenue. or consultant of the City. In the event a dispute arises between City and Developer regarding . cost of capital. brokerage fee. the Project. other than a bona fide employee working solely for Developer any fee. strict liability or otherwise. services. down time costs. commission. ordinances. 25 General Compliance with Laws. 26. cost of substitute equipment. to solicit or secure this Agreement. or any work. exceed one hundred percent (100%) of the Contract Price prior to Mechanical Completion. 27 Disputes. and regulations and shall be responsible for the compliance of Developer's Work with all applicable laws. no officer. warranty. tort. Further.1 In no event shall the aggregate maximum liability of Developer under this Agreement for performance or nonperformance of all obligations under this Agreement. loss of opportunity. Developer warrants that it has not paid nor has it agreed to pay any company or person. employee. indemnity. or Dakota Government Law Section 87100 et g. including but not limited to. not withstanding any remedy otherwise available at law or in equity. or in any way affect the performance of Work by Developer pursuant to this Agreement. or any consultant or contractor retained by Developer. equipment or materials required or provided for the project or obtain any present or anticipated material benefit therefrom. loss of use of equipment or any associated equipment. cost of purchased or replacement power. including negligence. other than a bona fide employee working solely for Developer. 26. and City hereby releases Developer and all Contractors and Subcontractors therefrom. loss of goodwill. except to the extent that Schedule Damages provided for in Section 10. percentage. this Agreement. The remedies afforded by this Agreement are intended to be the sole and exclusive remedies of the Parties to this Agreement for the liabilities of such Parties arising out of or in connection with the Work or this Agreement. gift or other consideration contingent upon the award or making of this Agreement. Commencing with the issuance of the City's Request for Proposals and for the duration of this Agreement. 26 Limitation of Liability. facilities or services. state and local laws and ordinances and regulations which in any manner affect those employed by Developer.2 In no event. Developer shall at all times observe and comply with all such laws. Developer maintains and warrants that it has not employed nor retained any company or person. or take any action in violation of Dakota Government Law Section 1090 et seq. guarantee. Developer shall keep fully informed of federal. If such senior officers cannot resolve the matter. and in performing its obligations under this Agreement will not be acting. valid and binding obligation of such Party enforceable against such Party in accordance with the terms hereof. inactions or performance of any person with respect to the Project. (iii) no Authorization is required for the execution. delivery and performance by such Party of this Agreement. the parties shall use their best efforts in good faith to agree upon an appropriate method of nonjudicial dispute resolution. Each Party represents and warrants to the other Party that: (i) such Party has the full power and authority to execute. the Project or any other matter. If the City's Representative and the Developer's Representative are unable to resolve the matter within 30 Days. either party may refer the matter by written notice to the senior officers of the parties. 28 Independent Contractor. the compliance with the terms and provisions hereof. neither party shall seek judicial resolution of any dispute until thirty (30) Days after the matter has been referred in writing to the parties' senior officers. Developer shall at all times during its performance of the Work retain its status as independent contractor. deliver and perform this Agreement and to carry out the transactions contemplated hereby.1 Representations and Warranties of Both Parties. 29. subject.the application or interpretation of any of the terms of this Agreement. The pendency of this dispute resolution mechanism shall not in and of itself relieve either party of its duty to perform under the Agreement. The Parties acknowledge and agree that Developer has not at any time acted. Developer's employees and agents shall under no circumstances be considered or held to be employees or agents of City. moratorium or other similar laws relating to insolvency. and City shall have no obligation to pay or withhold state or federal taxes or provide workers' compensation or unemployment insurance for or on behalf of them or Developer. to limitations imposed by bankruptcy. City's Representative and Developer's Representative shall use their best efforts in good faith to reach a reasonable and equitable resolution of the matter. reorganization. partnership) action. or the actions. and the carrying out of . other than Authorizations already obtained and Authorizations to be obtained with respect to the Construction and/or operation of the Project. reorganization. as an advisor to the City with respect to this Agreement. and this Agreement has been duly executed and delivered by such Party and constitutes the legal. In any event. moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and to general principles of equity. including but not limited to mediation. as to the enforceability of remedies. 29 Representations and Warranties. mini trial. insolvency. or arbitration. delivery and performance by such Party of this Agreement or the carrying out by such Party of the transactions contemplated hereby. Other. and (iv) none of the execution. if applicable. (ii) the execution and delivery of this Agreement by such Party and the carrying out by such Party of the transactions contemplated hereby have been duly authorized by all requisite corporate (or. the transactions contemplated hereby. resolution. including without limitation. conflicts or will conflict with or result in a breach of violation of any of the terms. the Act and all other relevant constitutional. is a Dakota General Law City. organic or other governing documents and applicable law and are available without limitation or deduction to satisfy all of the City's obligations hereunder. organic or other governing documents and applicable law or (ii) otherwise not subject to any prior claim under any and all bond ordinances or indentures to which it is a party. 29. bylaws or other regulations applicable to the City. writ. conditions. as amended. (vi) obligations to make payments hereunder do not constitute any kind of . of such Party or any applicable order.2 Additional Representations. mortgage. including the Dakota Constitution and Dakota Public Utilities Law sections 10001. note. injunction judgment or decree of any court or governmental authority against such Party or by which it or any of its properties is bound. election. organic or other governing documents and applicable law. referendum. prior appropriation or other required procedures has or will be taken and performed as required under the Act and all ordinances. (v) The City's obligations to make payments hereunder are unsubordinated obligations and such payments are (i) operating and maintenance costs (or similar designation) which enjoy first priority of payment at all times under any and all bond ordinances or indentures to which it is a party. delivery and performance of this Agreement. et seq. organic or other governing documents and applicable law. Warranties and Covenants of The City: The City represents and warrants to Developer that the City of Dreams. Authorization. or any loan agreement indenture. the Act and all other relevant constitutional. warrants and covenants to Developer. (the "Act"). bond. or constitutes or will constitute a default thereunder or will result in the imposition of any lien upon any of its properties. The City further represents. Dakota. and operating a municipal utility under the laws of the State of Dakota. public notice. as of the Effective Date and continuing throughout the term of this Agreement as follows: (i) all acts necessary to the valid execution. contract or other agreement or instrument to which such Party is a Party or by which it or any of its properties is bound. (iii) entry into and performance of this Agreement by the City are for a proper public purpose within the meaning of the Act and all other relevant constitutional. (ii) all persons making up the governing body of the City are the duly elected or appointed incumbents in their positions and hold such positions in good standing in accordance with the Act and other applicable law. or provisions of any law. if applicable) as amended or bylaws. competitive bidding. governmental rule or regulation or the charter documents (or partnership agreement. organized under Dakota law. (iv) the term of this Agreement does not extend beyond any applicable limitation imposed by the Act or other relevant constitutional. The invalidity. and supersedes all prior and contemporaneous understandings or agreements of the Parties. complete. assigns. successors. 30. any property or revenues of the City which.4 Integration. organic or other governing documents and applicable law. 30. 30 Miscellaneous Provisions. provided. officers. and neither Party is relying on. partners. Neither Party has been induced to enter in this Agreement by. The provisions of this Article shall not prevent this entire Agreement from being void should a provision that is of the essence of this Agreement to be determined void. which consent shall not be unreasonably withheld. . illegality. or any contractual restriction binding on or affecting it or any of its assets. any order or judgment of any court or other agency of government applicable to it or its assets. administrators. Any void provision shall be deemed severed from this Agreement. assigns. The Parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. and legal representatives to the other Party to this Agreement and to the directors. and Subcontractors to assist in the performance of the Work. successors. delayed or conditioned. however. partners. or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Unless otherwise stated in the written consent to an assignment. City and Developer each binds itself and its directors. executors. associates. is proscribed by any provision of the Act or any other relevant constitutional. Such a waiver shall not affect the waiving Party's rights with respect to any other or further breach. that Developer may assign this Agreement to any commonly owned affiliate of Developer.1 Waiver. or security interest in. Nothing contained in this Article shall prevent Developer from employing independent consultants. 30. and exclusive statement of the terms of the agreement between the Parties pertaining to the Project. no assignment will release or discharge the assignor from any obligation under this Agreement. A waiver by either City of Developer of any breach of this Agreement shall be in writing.6 Assignment. executors. 30.3 Intentionally Omitted.indebtedness of the City or create any kind of lien on. This Contract Documents constitute the final. and legal representatives of such other Party in respect to all provisions of this Agreement. administrators. 30.5 Successors and Assigns. officers. any representation or warranty outside those expressly set forth in this Agreement.2 Severability. in either case. and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. Neither City nor Developer shall assign any rights or duties under this Agreement without the prior written consent of the other Party. Neither this Agreement nor any part hereof nor any monies due or to become due hereunder may be assigned by Developer without the prior written consent of the City's Representative. 30. such assignment will be recognized by the City to the extent permitted by law. 30. 30. 32 Hours of Work. should the Developer be in default. . This Agreement shall be governed by and construed in accordance with the laws of the State of Dakota.8 Headings.9 Governing Law. and Developer shall make all such records available for inspection at all reasonable hours. Developer shall forfeit a penalty as specified in such Section for each Day that each worker is required to work more than eight (8) hours in any one Day and forty (40) hours in any one calendar week. and the Parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other country. Pursuant to Section 1813 of the Labor Law.5 of the Labor Law with respect to the employment of properly registered apprentices upon public works. whether assigned or not. Developer may assign money due or which will accrue to it under the Agreement. In accordance with the requirements of Labor Law Section 1776. and has complete and sole responsibility as a principal for its agents and all others it hires to perform or assist in performing the Work. Responsibility for compliance with Labor Law Section 1776 shall rest solely with Developer. 30. Article.Notwithstanding any agreement with any Subcontractor(s). Developer shall keep accurate payroll records which are either on forms provided by the Division of Labor Standards Enforcement or which contain the same information required by such forms. State of Dakota. Section and Subsection headings in this Agreement are for the convenience of reference only and shall not govern the interpretation of any provision of this Agreement.7 Third Party Rights. The primary responsibility for compliance with said Section for all apprenticeable occupations shall be with Developer. 33 Records. Developer shall be solely responsible for the Work. Except as expressly provided in this Agreement. except when payment for overtime is made at not less than one and one-half (11/2) times the basic rate for that worker. Any assignment of money shall be subject to all proper withholdings in favor of the City and to all deductions provided for in the Contract Documents. 30. Any action at law or in equity brought by either of the Parties for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of San Bernardino. When Developer employs workmen in an apprenticeable craft or trade.10 Jurisdiction and Venue. shall be subject to being used by City for completion of the Work. excluding conflict of law provisions. If given written notice. 31 Apprenticeable Crafts. All money withheld. nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and Developer. Developer is advised that eight (8) hours labor constitutes a legal day's work. Developer shall comply with the provisions of Section 1777. Dakota Fax No. postage prepaid and addressed as follows: Developer: Wombat Construction ___________________ ___________________ ___________________ Fax No. the Parties have executed this Agreement as of the date first above written. Marks City Manager City of Dreams DEVELOPER: Wombat Construction By: ___________________ . in the form set forth in Exhibit I.Z. (555) 555-5555 Attention: PUC Director Nothing contained in this Section 35 shall be construed to restrict the transmission of routine communications between representatives of Developer and City. Developer shall execute a non collusion affidavit 35 Notices. IN WITNESS WHEREOF. CITY OF DREAMS By:_______________ E. Service of any notices. Any changes in the information provided in this Section 35 shall be communicated to the other Party in accordance with this Section. invoices or other documents required or permitted under this Agreement shall be sufficient if sent by one Party to the other by United States mail.34 Non Collusion Affidavit. (555) 555-5555 Attention: President Copy: General Counsel Fax: (555) 555-5555 City: City of Dreams 1 South Main Street Dreams. bills. List of Exhibits: EXHIBIT A: EXHIBIT B: SCHEDULE OF AUTHORIZATIONS [BLANK] EXHIBIT C: FORM OF PAYMENT CERTIFICATE EXHIBIT D: PROGRESS SCHEDULE EXHIBIT E: EXHIBIT F: PROJECT DESCRIPTION PROJECT SITE EXHIBIT G: SCHEDULE OF VALUES EXHIBIT H: SCOPE OF WORK EXHIBIT I: FORM OF NON COLLUSION AFFIDAVIT .