Agreement Bet Owner & Construction Mgr

AIA DOCUMENT A131/CMC AND AGC DOCUMENT 566


STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND CONSTRUCTION MANAGER


WHERE THE CONSTRUCTION MANAGER IS ALSO THE CONSTRUCTOR; AND WHERE THE BASIS OF PAYMENT IS THE COST OF THE WORK PLUS A FEE AND THERE IS NO GUARANTEE OF COST.


1994 EDITION


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


THE 1987 EDITION OF AIA DOCUMENT A201, GENERAL CONDITIONS OF THE CONTRACT
FOR CONSTRUCTION, IS REFERRED TO HEREIN.
THIS AGREEMENT REQUIRES MODIFICATION IF OTHER GENERAL CONDITIONS ARE
UTILIZED. - -------------------------------------------------------------------------------


AGREEMENT


made as of the 1st day of June in the year of 1996 (IN WORDS, INDICATE DAY, MONTH AND YEAR)


BETWEEN the Owner: Lifecore Biomedical, Inc. (NAME AND ADDRESS) 3515 Lyman Blvd.
Chaska, MN 55318-3051


and the Construction Manager: Marshall Contractors, Inc. (NAME AND ADDRESS) 2690 Perimeter Center East
Atlanta, GA 30346


The Project is: (NAME, ADDRESS AND BRIEF DESCRIPTION) Phase 1-C:
Phase 2-A:
Phase 2-B:
Phase 2-C:
Lifecore headquarters in Chaska, MN


The Architect is: Facility Planning & Resources (NAME AND ADDRESS) 2101 Greentree Road
Pittsburgh, PA 15220


The Owner and Construction Manager agree as set forth below.


- -------------------------------------------------------------------------------


THIS DOCUMENT IS MODIFIED FROM THE AIA DOCUMENT 131/CMC AND AGC DOCUMENT 566- 1991 EDITION -AIA @1991-AGC@1991


TABLE OF CONTENTS - -------------------------------------------------------------------------------


ARTICLE 1 GENERAL PROVISIONS


1.1 Relationship of Parties
1.2 General Conditions
1.3 Contract Sum, Contract Time and Changes in the Work


ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES


2.1 Preconstruction Phase
2.2 Control Estimate and Contract Time
2.3 Construction Phase
2.4 Professional Services
2.5 Unsafe Materials


ARTICLE 3 OWNER'S RESPONSIBILITIES


3.1 Information and Services
3.2 Owner's Designated Representative
3.3 Architect
3.4 Legal Requirements


ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES


4.1 Compensation
4.2 Payments


ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES


5.1 Compensation
5.2 Change in the Work


ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE


6.1 Costs To Be Reimbursed
6.2 Costs Not To Be Reimbursed
6.3 Discounts, Rebates and Refunds
6.4 Accounting Records


ARTICLE 7 CONSTRUCTION PHASE PAYMENTS


7.1 Progress Payments
7.2 Final Payment


ARTICLE 8 INSURANCE AND BONDS


8.1 Insurance Required of the Construction Manager
8.2 Insurance Required of the Owner
8.3 Performance Bond and Payment Bond


ARTICLE 9 MISCELLANEOUS PROVISIONS


9.1 Dispute Resolution for the Preconstruction Phase
9.2 Dispute Resolution for the Construction Phase
9.3 Other Provisions


ARTICLE 10 TERMINATION OR SUSPENSION


10.1 Termination Prior to the Owner's Approval of the Control Estimate
10.2 Termination Subsequent to the Owner's Approval of the Control
Estimate
10.3 Notice of Termination
10.4 Suspension


ARTICLE 11 OTHER CONDITIONS AND SERVICES


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STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSTRUCTION
MANAGER WHERE THE CONSTRUCTION MANAGER IS ALSO THE CONSTRUCTOR


ARTICLE 1

GENERAL PROVISIONS


1.1 RELATIONSHIP OF PARTIES


The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner. The Construction Manager shall furnish construction administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the Owner. The Owner shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager and other persons or entities employed by the Owner for the Project.


1.2 GENERAL CONDITIONS


For the Construction Phase, the General Conditions of the Contract shall be the 1987 Edition of AIA Document A201, General Conditions of the Contract for Construction, as modified by the parties, which is incorporated herein by reference and attached hereto as Exhibit "A" and which shall apply except as specifically noted in this Agreement. For the Preconstruction Phase, including Preconstruction Phase activities which proceed concurrently with the Construction Phase, AIA Document A201 shall not apply except as specifically provided in this Agreement. If anything in AIA Document A201 is inconsistent with or is modified by this Agreement, this Agreement shall govern. Modifications of AIA Document A201 by this Agreement shall not apply to Subcontractors except as provided in Paragraph 2.5 of this Agreement. The term "Contractor" as used in AIA Document A201 shall mean the Construction Manager.


1.3 CONTRACT SUM, CONTRACT TIME AND CHANGES IN THE WORK


The Contract Sum is the total Cost of the Work as described in Article 6, plus the Construction Manager's Fee as set forth in Article 5. The Contract Time is the duration from the date of commencement of the Construction Phase until the date of Substantial Completion. Changes in the Work shall be governed by Paragraph 5.2 of this Agreement and not by Article 7 of AIA Document A201. If, however, the Contract Time has been established in accordance with Clause 2.2.4.5 of this Agreement, adjustments to the Contract Time shall be made in accordance with Article 7 of AIA Document A201.


ARTICLE 2

CONSTRUCTION MANAGER'S RESPONSIBILITIES


The Construction Manager shall perform the services described in this Article. The services to be provided under Paragraphs 2.1 and 2.2 constitute the Preconstruction Phase services. The Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently.


2.1 PRECONSTRUCTION PHASE


2.1.1 PRELIMINARY EVALUATION


The Construction Manager shall provide a preliminary evaluation of the Owner's program, Project budget and schedule requirements, each in terms of the other.


2.1.2 CONSULTATION


The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner and Architect. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements, and the selection of materials, building systems and equipment. The Construction Manager shall provide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and factors related to construction cost including estimates of alternative designs or materials, preliminary budgets and possible economies.


2.1.3 PRELIMINARY PROJECT SCHEDULE


When Project requirements described in Subparagraph 3.1.1 have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the Owner's approval of the portion of the preliminary Project schedule relating to the performance of the Architect's services. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Architect and Construction Manager. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of the Control Estimate, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead time procurement, Owner's occupancy requirements showing portions of the Project having occupancy priority, and estimated date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the Owner and Architect.


2.1.4 PHASED CONSTRUCTION


The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facilities.


2.1.5 PRELIMINARY COST ESTIMATES


2.1.5.1 When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction manager shall prepare, for the review of the Architect and approval of the Owner, a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques.


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2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare for the review of the Architect and approval of the Owner, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager.


2.1.5.3 When Design Development Documents have been prepared by the Architect and approved by the Owner, the Construction Manger shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Construction Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manger.


2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect.


2.1.6 SUBCONTRACTORS AND SUPPLIERS


The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or Owner know of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier.


2.1.7 LONG-LEAD TIME ITEMS


The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long-lead time items which will constitute part of the Work as required to meet the Project schedule. Upon the Owner's approval of the Control Estimate, all contracts for such items shall be assigned by the Owner to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long-lead time items.


2.1.8 EXTENT OF RESPONSIBILITY


The Construction Manager agrees to exercise reasonable skill and judgment in the preparation of schedules and estimates, but does not warrant or guarantee any schedules or estimates or line items within such estimates, even though approved by the Owner, including the Control Estimate and the estimated date of Substantial Completion, except as otherwise provided under Clause 2.2.4.5. The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the Owner and the Owner's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Construction Manager recognizes that portions of the Drawings and Specifications are at variance, the Construction Manager shall promptly notify the Architect and Owner in writing.


2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION


The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs.


2.2 CONTROL ESTIMATE AND CONTRACT TIME


2.2.1 In accordance with the preliminary Project schedule established in Subparagraph 2.1.3, the Construction Manager shall prepare and submit to the Owner in writing a Control Estimate using current information to update the most recently prepared Preliminary Estimate. The Control Estimate shall be the sum of the then-estimated Cost of the Work and the Construction Manager's Fee, and is the estimate against which actual costs will be measured.


2.2.2 The Construction Manager shall develop and implement a detailed system of cost control that will provide the Owner with timely information as to the anticipated total Cost of the Work. The cost control system shall compare the Control Estimate with the actual cost for activities in progress and estimates for uncompleted tasks and proposed changes. This information shall be reported to the Owner in writing at mutually agreeable intervals.


2.2.3 As the Drawings and Specifications may not be finished at the time the Control Estimate is prepared, the Construction Manager shall provide in the Control Estimate for further development of the Drawings and Specifications of the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment.


2.2.4 The Control Estimate shall include:


.1 A list of the Drawing and Specifications, including all addenda thereto
and the Conditions of the Contract.


.2 A list of the clarifications and assumptions made by the Construction
Manager in the preparation of the Control Estimate to supplement the
information contained in the Drawings and Specifications.


.3 A statement of the estimated Cost of the work organized by trade
categories or systems, and the Construction Manager's fee.


.4 A statement of the actual or estimated date of commencement of the
Construction Phase and the estimated date of Substantial Completion,
with a schedule of the construction documents issuance dates upon which
the estimated date of Substantial Completion is based.


.5 A statement as to whether or not the duration from the stated date of
commencement of the Construction Phase to the estimated date of
Substantial Completion shall become the Contract Time and be subject to
the provisions of Article 8 of AIA Document A201.


2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Control Estimate. In the event that the Owner or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Control Estimate. When the Control Estimate is acceptable to the Owner, the Owner shall approve it in writing.


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2.2.6 Upon the Owner's approval of the Control Estimate, the Contract Documents shall consist of (1) this Agreement, (2) AIA Document A201 and other documents referred to in this Agreement, (3) the documents enumerated in Clause 2.2.4 with the adjustments described in Clause 2.2.5, and (4) Modifications issued subsequent to the Owner's approval of the Control Estimate. If anything in the other Contract Documents is inconsistent with this Agreement, this Agreement shall govern.


2.2.7 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed upon assumptions and clarifications on which the Control Estimate is based. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner, Architect, and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specifications are inconsistent with the agreed upon assumptions and clarifications.


2.3 CONSTRUCTION PHASE


2.3.1 GENERAL


2.3.1.1 The Construction Phase shall commence on the earlier of:


.1 the Owner's approval of the Control Estimate and issuance of a Notice
to Proceed; or


.2 the Owner's first authorization to the Construction Manager to award a
subcontract, or to undertake a portion of the Work with the
Construction Manager's own forces, or to issue a purchase order for
materials or equipment required for the Work.


2.3.1.2 For purposes of Subparagraph 8.1.2 of AIA Document A201, the date of commencement of the Work shall mean the date of commencement of the Construction Phase.


2.3.1.3 Prior to the Owner's approval of the Construction Manager's Control Estimate and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the Owner may specifically authorize in writing.


2.3.2 ADMINISTRATION


2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the Owner and Architect. The Owner will then determine, with the advice of the Construction Manager and subject to the reasonable objection of the Architect, which bids will be accepted. The Owner may designate specific persons or entities from whom the Construction Manager shall obtain bids. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection.


2.3.2.2 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Subparagraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner.


2.3.2.3 The Construction Manager shall schedule and conduct meetings at which the Owner, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes.


2.3.2.4 Promptly after the Owner's approval of the Control Estimate, the Construction Manager shall prepare a schedule in accordance with Paragraph 3.10 of AIA Document A201, and the following requirements: The construction schedule shall be in a detailed precedence-style critical path method (CPM) or primavera type format satisfactory to the Owner and the Architect which shall also: (1) provide a graphic representation of all activities and events that will occur during performance of the Work; (2) identify each phase of construction and occupancy; and (3) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract Documents and Exhibit "B". Upon review and acceptance by the Owner and the Architect, the construction schedule shall be deemed part of the Contract Documents and attached to the Agreement as Exhibit B. If not accepted, the construction schedule shall be promptly revised by the Contractor in accordance with the recommendations of the Owner and the Architect and re-submitted for acceptance. The Contractor shall monitor the progress of the Work for conformance with the requirements of the construction schedule and shall promptly advise the Owner of any delays or potential delays. The accepted construction schedule shall be updated to reflect actual conditions as set forth in General Conditions, Paragraph 3.10.1 or, if requested by Owner. In the event any progress report indicates any delays, the Contractor shall propose an affirmative plan to correct the delay, including overtime and/or additional labor, if necessary. In no event shall any progress report constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the Owner and authorized pursuant to Change Order.


2.3.2.5 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Architect.


2.4 PROFESSIONAL SERVICES


The Construction Manager shall not be required to provide professional services which constitute the practice of architecture or engineering, unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Construction Manager has specifically agreed in writing to provide such services. In such event, the Construction Manager shall cause such services to be performed by appropriately licensed professionals.


2.5 UNSAFE MATERIALS


In addition to the provisions of Paragraph 10.1 in AIA Document A201, if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance encountered but not created on the site by the Construction Manager, the Construction Manager shall, upon recognizing the condition, immediately stop work in the affected area and report the condition to the Owner and Architect in writing. The Owner, Construction Manager and Architect shall then proceed in the same manner described in Subparagraph 10.1.2 of AIA Document A201. The Owner shall be responsible for obtaining the


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services of a licensed laboratory to verify the presence or absence of the material of substance reported by the Construction Manager and, in the event such material or substance is found to be present, to verify that it has been rendered harmless.


ARTICLE 3
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OWNER'S RESPONSIBILITIES


3.1 INFORMATION AND SERVICES


3.1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements.


3.1.2 The Owner, upon written request from the Construction Manager, shall furnish evidence of Project financing prior to the start of the Construction Phase. Furnishing of such evidence shall be a condition precedent to commencement of the Work.


3.1.3 The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the Owner.


3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS


In the Preconstruction Phase, the Owner shall furnish the following with reasonable promptness and at the Owner's expense:


3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law.


3.1.4.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a project benchmark.


3.1.4.3 The services of a geotechnical engineer when such services are requested by the Construction Manager. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations.


3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law.


3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Construction Manager.


The Construction Manager shall be entitled to rely upon the accuracy of such information, reports, surveys, drawings and tests described in Clauses 3.1.4.1 through 3.1.4.5, except to the extent that the Construction Manager knows of any inaccuracy.


3.2 OWNER'S DESIGNATED REPRESENTATIVE


The Owner's representative is Robert McCollough, who shall have express authority to bind the Owner with respect to all matters requiring th ...