Amendment No. 2 to the Standard Form of Agreement between Owner and Design-Builder, dated July 24, 2019 (the "Standard Form of Agreement"), by and between Fox Factory, Inc. and Carroll Daniel Construction Company, dated December 21, 2020
EX-10.1 2 exhibit101amendmentno2toth.htm EX-10.1 Document
AIA® Document A141TM - 2014 Exhibit A
Design-Build Amendment #2
This Amendment #2 is dated as of December 21, 2020 and is incorporated into the accompanying AIA Document A141™-2014, Standard Form of Agreement Between Owner and Design-Builder dated the « 24 » day of « July » in the year « 2019 » (the “Agreement”)
(In words, indicate day, month and year.)
for the following PROJECT:
(Name and location or address)
« Fox GA Factory »
« 2513 West Park Dr SW »
« Gainesville GA 30504 »
« The Agreement referred to the Project as “An ~ 309k SF factory located in Gainesville Industrial Park West”, and the Design-Build Amendment #1 amended the Project description as “An ~ 336k SF factory located in Gainesville Industrial Park West”. That is now amended to read as follows: “An ~ 350k SF factory located in Gainesville Industrial Park West”. »
(Name, legal status and address)
« Fox Factory Inc »
« a CA corporation »
« 6634 Hwy 53 »
« Braselton GA 30517 »
(Name, legal status and address)
« Carroll Daniel Construction Co »
« a GA corporation »
« PO Box 1438
« Gainesville, GA 30503 »
The Owner and Design-Builder hereby amend the Agreement as follows.
TABLE OF ARTICLES
A.1 CONTRACT SUM
A.2 CONTRACT TIME
A.3 INFORMATION UPON WHICH AMENDMENT IS BASED
A.4 DESIGN-BUILDER’S PERSONNEL, CONTRACTORS AND SUPPLIERS
A.5 COST OF THE WORK
ARTICLE A.1 CONTRACT SUM
§ A.1.0 This Amendment #1 is for the portions of / Work for the Project as reflected in the Package proposals listed in §A.1.2.1. It is acknowledged that future amendments to the Agreement will be required and forthcoming to cover additional Work required to complete the Project.
§ A.1.1 The Owner shall pay the Design-Builder the Contract Sum in current funds for the Design-Builder’s performance of the Contract after the execution of this Amendment. The Contract Sum shall be one of the following and shall include compensation the Owner paid the Design-Builder for Work performed prior to execution of this Amendment and pursuant to the Letter of Intent between the parties dated May 29, 2019. This Amendment supersedes the Letter of Intent.
(Check the appropriate box.)
[ « X » ] Stipulated Sum, in accordance with Section A.1.2 below
[ « » ] Cost of the Work plus the Design-Builder’s Fee, in accordance with Section A.1.3 below
[ « » ] Cost of the Work plus the Design-Builder’s Fee with a Guaranteed Maximum Price, in accordance with Section A.1.4 below
(Based on the selection above, complete Section A.1.2, A.1.3 or A.1.4 below.)
§ A.1.2 Stipulated Sum
§ A.1.2.1 The Stipulated Sum established in Design-Build Amendment #1 was $36,505,863. The Stipulated Sum is increased by $10,676,240 and the new aggregate total Stipulated Sum shall be « Forty Seven Million One Hundred Eighty Two Thousand One Hundred Three & 00/100 Dollars » ($ « 47,182,103 »), subject to authorized adjustments as provided in the Design-Build Documents.
The Stipulated Sum is broken down as set forth in the following Exhibits:
Amendment #1 and its exhibits are incorporated into this Amendment #2 by reference and made a part hereof.
Amendment #2 additions:
Revision #1 Proposal Dated January 10, 2020 attached as Exhibit No.2.A.01
Revision #1 Recognized Value Engineering Log Dated January 7, 2020 attached as Exhibit No.2.A.02
Revision #2-4 Proposal Dated February 26, 2020 attached as Exhibit No.2.A.03
Revision #5 – “Additional Project Cost” Log Dated October 23, 2020 attached as Exhibit No.2.A.04
§ A.1.2.2 The Stipulated Sum is based upon the following alternates, if any, which are described in the Design-Build Documents and are hereby accepted by the Owner:
(State the numbers or other identification of accepted alternates. If the Owner is permitted to accept other alternates subsequent to the execution of this Amendment, attach a schedule of such other alternates showing the change in Stipulated Sum for each and the deadline by which the alternate must be accepted.)
§ A.1.2.3 Unit prices, if any: If used, shall be included and defined within the component packages.
(Identify item, state the unit price, and state any applicable quantity limitations.)
|Item||Units and Limitations||Price per Unit ($0.00)|
§ A.1.3 Cost of the Work Plus Design-Builder’s Fee [Intentionally Deleted]
§ A.1.4 Cost of the Work Plus Design-Builder’s Fee with a Guaranteed Maximum Price [Intentionally Deleted]
§ A.1.5 Payments
§ A.1.5.1 Progress Payments
§ A.22.214.171.124 Based upon Applications for Payment submitted to the Owner by the Design-Builder, the Owner shall make progress payments on account of the Contract Sum to the Design-Builder as provided below and elsewhere in the Design-Build Documents.
§ A.126.96.36.199 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows:
§ A.188.8.131.52 Provided that an Application for Payment is received not later than the « 25th » day of the month, the Owner shall make payment of the certified amount to the Design-Builder not later than the « 25th » day of the « following » month. If an Application for Payment is received by the Owner after the application date fixed above, payment shall be made by the Owner not later than « Thirty » (« 30 ») days after the Owner receives the Application for Payment.
(Federal, state or local laws may require payment within a certain period of time.)
§ A.184.108.40.206 [Intentionally Deleted].
§ A.220.127.116.11 With each Application for Payment where the Contract Sum is based upon a Stipulated Sum, the Design-Builder shall submit the most recent schedule of values in accordance with the Design-Build Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. Compensation for design services, if any, shall be shown separately. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule of values, unless objected to by the Owner, shall be used as a basis for reviewing the Design-Builder’s Applications for Payment.
§ A.18.104.22.168 In taking action on the Design-Builder’s Applications for Payment, the Owner shall be entitled to rely on the accuracy and completeness of the information furnished by the Design-Builder and shall not be deemed to have made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Sections A.22.214.171.124 or A.126.96.36.199, or other supporting data; to have made exhaustive or continuous on-site inspections; or to have made examinations to ascertain how or for what purposes the Design-Builder has used amounts previously paid. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner’s auditors acting in the sole interest of the Owner.
§ A.188.8.131.52 Except with the Owner’s prior approval, the Design-Builder shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site.
§ A.184.108.40.206 If all or part of any funds of the Design-Builder that are held by the Owner, whether it be retainage, escrowed funds or otherwise, should be attached, garnished or levied upon under any order of court, or if the delivery thereof shall be stayed or enjoined by any order of court, or if any other writ, order, judgment, or decree shall be made or entered by any court affecting the held funds, or any part thereof whether with or without jurisdiction, and in case Owner obeys and complies with any such writ, order judgment, or decree, Owner shall not be liable to the Design-Builder, its successors, or assigns, and Design-Builder shall indemnify and hold Owner harmless for its compliance with such writ, order, judgment or decree, notwithstanding that such writ, order, judgment or decree be subsequently reversed, modified, annulled, set aside, or vacated.
§ A.1.5.2 Progress Payments—Stipulated Sum
§ A.220.127.116.11 Applications for Payment where the Contract Sum is based upon a Stipulated Sum shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment.
§ A.18.104.22.168 Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows:
.1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of « Ten » percent ( « 10 » %) on the Work. Pending final determination of cost to the Owner of Changes in the Work, amounts not in dispute shall be included as provided in Section 6.3.9 of the Agreement;
.2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of « Ten » percent ( « 10 » %);
.3 Subtract the aggregate of previous payments made by the Owner; and
.4 Subtract amounts, if any, the Owner has withheld or nullified, as provided in Section 9.5 of the Agreement.
§ A.22.214.171.124 The progress payment amount determined in accordance with Section A.126.96.36.199 shall be further modified under the following circumstances:
.1 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to the full amount of the Contract Sum, less such amounts as the Owner shall determine for incomplete Work, retainage applicable to such work and unsettled claims; and
(Section 9.8.6 of the Agreement discusses release of applicable retainage upon Substantial Completion of Work.)
.2 Add, if final completion of the Work is thereafter materially delayed through no fault of the Design-Builder, any additional amounts payable in accordance with Section 9.10.3 of the Agreement.
§ A.188.8.131.52 Reduction or limitation of retainage, if any, shall be as follows:
(If it is intended, prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Sections A.184.108.40.206.1 and A.220.127.116.11.2 above, and this is not explained elsewhere in the Design-Build Documents, insert provisions here for such reduction or limitation.)
« Retainage withholding may be reduced to 5% upon reaching 75% completion of the Work. »
§ A.1.5.3 Progress Payments—Cost of the Work Plus a Fee [Intentionally Deleted]
§ A.1.5.4 Progress Payments—Cost of the Work Plus a Fee with a Guaranteed Maximum Price [Intentionally Deleted]
§ A.1.5.5 Final Payment
§ A.18.104.22.168 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Design-Builder not later than 30 days after the Design-Builder has fully performed the Contract and the requirements of Section 9.10 of the Agreement have been satisfied, except for the Design-Builder’s responsibility to correct non-conforming Work discovered after final payment or to satisfy other requirements, if any, which extend beyond final payment.
§ A.22.214.171.124 [Intentionally Deleted]
ARTICLE A.2 CONTRACT TIME
§ A.2.1 Contract Time, as defined in the Agreement at Section 1.4.13, is the period of time, including authorized adjustments, for Substantial Completion of the Work.
§ A.2.2 The Design-Builder shall achieve Substantial Completion of the Work not later than October 2, 2020. Additionally, Design-Builder shall achieve the following milestone completion dates which supersede the milestone completion dates from Design-Build Amendment #1:
|Portion of Work||Milestone Substantial Completion Date|
|First Floor Mezzanine Area||08/12/2020|
|Second Floor Mezzanine Area & Site||10/02/2020 (TCO granted on October 01, 2020)|
|Certificate of Occupancy||11/06/2020 (Dependent upon restart date of City of Gainesville’s project tracking system. All requirement for issuance have been met.)|
, subject to adjustments of the Contract Time as provided in the Design-Build Documents.
It is anticipated that the above milestone completion dates will be addressed in the next amendment as the Design-Build Documents are nearing completion.
Design-Builder hereby discloses to Owner that forty-two (42) rain delay days, an increase of 25 rain delay days from Design-Build Amendment #1, have been incurred since mobilization on June 10, 2019. The above Milestone Substantial Completion Dates have been extended to account for rain delay days through duration of the project. Design-Builder shall not be assessed liquidated damages for delay days caused by the failure of Owner supplied trades and/or infrastructure installations that do not meet collective critical path scheduling that are beyond the control of Design-Builder. Design-Builder to give advance notice to Owner of any concerns as soon as they arise.
(Insert provisions, if any, for liquidated damages relating to failure to achieve Substantial Completion on time or for bonus payments for early completion of the Work.)
« If the Design-Builder fails to achieve Substantial Completion of the Work within the Contract Time or by a milestone substantial completion date, Design-Builder shall be subject to liquidated damages (not a penalty) as follows: a) for a milestone substantial completion date missed by five (5) calendar days or more - $1,500 per calendar day for the total number of days the Work is delayed beyond the milestone substantial completion date, and/or
b) $2,500.00 per calendar day for the total number of days the Work is delayed beyond the Substantial Completion date.
Such liquidated damages are hereby agreed to be a reasonable pre-estimate of damages the Owner will incur as a result of delayed completion of the Work and shall be Owner's sole and exclusive remedy for delayed completion of the Work but shall not be construed as a limitation of the Owner's other rights and remedies under this Agreement. The Owner may deduct liquidated damages from any unpaid amounts then or thereafter due Design-Builder. Any liquidated damages not so deducted shall be payable by the Design-Builder to the Owner upon demand. »
ARTICLE A.3 INFORMATION UPON WHICH AMENDMENT IS BASED
§ A.3.1 The Contract Sum and Contract Time set forth in this Amendment are based on the following:
General note for all items within Article A.3:
Each component pricing package will include a current document log, specification log, list of assumptions
and clarifications, and a breakdown of any allowances and contingencies included.
§ A.3.1.1 The Supplementary and other Conditions of the Contract:
§ A.3.1.2 The Specifications:
(Either list the specifications here or refer to an exhibit attached to this Amendment.)
« See Exhibit 2B »
§ A.3.1.3 The Drawings:
(Either list the drawings here or refer to an exhibit attached to this Amendment.)
« See Exhibit 2.C »
§ A.3.1.4 The Sustainability Plan, if any:
(If the Owner identified a Sustainable Objective in the Owner’s Criteria, identify the document or documents that comprise the Sustainability Plan by title, date and number of pages, and include other identifying information. The Sustainability Plan identifies and describes the Sustainable Objective; the targeted Sustainable Measures; implementation strategies selected to achieve the Sustainable Measures; the Owner’s and Design-Builder’s roles and responsibilities associated with achieving the Sustainable Measures; the specific details about design reviews, testing or metrics to verify achievement of each Sustainable Measure; and the Sustainability Documentation required for the Project, as those terms are defined in Exhibit C to the Agreement.)
Other identifying information:
« N/A »
§ A.3.1.5 Allowances and Contingencies:
(Identify any agreed upon allowances and contingencies, including a statement of their basis.)
« N/A »
« Stipulated Sum includes a Contractor Contingency in amount of Two Million Two Hundred Three Thousand Nine Hundred Sixteen & 75/100 Dollars ($ 2,203,916.75), an increase of $570,960.84 from Design-Build Amendment #1, for the purpose of covering unexpected costs not included in a Changer Order. If said Contingency, or part thereof, is not utilized by Design-Builder, the Stipulated Sum shall be reduced by Change Order by any such amount not utilized.
It is acknowledged by Design-Builder and Owner that $2,203,916.75 of the above referenced contingency amount has been utilized through October 23, 2020 and $0.00 is available for future use.»
§ A.3.1.6 Design-Builder’s assumptions and clarifications:
« None »
§ A.3.1.7 Deviations from the Owner’s Criteria as adjusted by a Modification:
« None »
§ A.3.1.8 To the extent the Design-Builder shall be required to submit any additional Submittals to the Owner for review, indicate any such submissions below:
« None »
ARTICLE A.4 DESIGN-BUILDER’S PERSONNEL, CONTRACTORS AND SUPPLIERS
§ A.4.1 The Design-Builder’s key personnel are identified below:
(Identify name, title and contact information.)
« David Dyer »
.2 Project Manager
« Bryan Burnette (Sr. PM)
Andrew Thomason (PM) »
« John Haynes (Project Executive) »
§ A.4.2 The Design-Builder shall retain the following Consultants, Contractors and suppliers, identified below, if any:
(List name, discipline, address and other information.)
ARTICLE A.5 COST OF THE WORK
§ A.5.1 Cost to Be Reimbursed as Part of the Contract [Intentionally Deleted]
§ A.5.2 Costs Not to Be Reimbursed as Part of this Contract [Intentionally Deleted].
§ A.5.3 Discounts, Rebates, and Refunds [Intentionally Deleted].
§ A.5.4 Other Agreements
§ A.5.4.1[Intentionally Deleted].
§ A.5.4.2 Agreements between the Design-Builder and Contractors shall conform to the applicable payment provisions of the Design-Build Documents, and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. If an agreement between the Design Builder and a Contractor is awarded on a cost plus a fee basis, the Design-Builder shall provide in the agreement for the Owner to receive the same audit rights with regard to the Cost of the Work performed by the Contractor as the Owner receives with regard to the Design-Builder in Section A.5.5, below.
§ A.5.4.3 The agreements between the Design-Builder and Architect and other Consultants identified in the Agreement shall be in writing. These agreements shall be promptly provided to the Owner upon the Owner’s written request.
§ A.5.5 Accounting Records
The Design-Builder shall keep full and detailed records and accounts related to the cost of the Work and exercise such controls as may be necessary for proper financial management under the Contract and to substantiate all costs incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner’s auditors shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the Design-Builder’s records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Contractor’s proposals, purchase orders, vouchers, memoranda and other data relating to the Contract. The Design-Builder shall preserve these records for a period of three years after final payment, or for such longer period as may be required by law.
§ A.5.6 Relationship of the Parties
The Design-Builder accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to exercise the Design-Builder’s skill and judgment; to furnish efficient construction administration, management services and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner consistent with the Owner’s interests and the Contract.
This Amendment to the Agreement entered into as of the day and year first written above.
|/s/ Michael C. Dennison||/s/ Albert Petrangeli|
|« Fox Factory Inc »|
« Michael C Dennison »
« Chief Executive Officer »
|« Carroll Daniel Construction Co »|
« Albert Petrangeli »
« Chief Operating Officer »
|(Printed name and title)||(Printed name and title)|