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EXHIBIT 10.11
MANUFACTURING AGREEMENT
This Agreement, is made as of the 1st day of January, 1997 by and between
Xxxxxxx Dynamics, L.L.C., a Delaware limited liability company, hereinafter
called "DDLLC" and Flour City Architectural Metals, Inc., a Delaware
corporation, hereinafter called "FCAM".
WHEREAS, FCAM is engaged in the business of designing and erecting curtain
wall systems; and
WHEREAS, DDLLC is engaged in the business of fabricating curtain walls at
its manufacturing plant in Johnson City, Tennessee (hereinafter referred to as
the "Facility"); and
WHEREAS, FCAM desires to purchase fabricated curtain wall systems and
components from DDLLC and DDLLC desires to fabricate curtain wall systems and
components for FCAM.
NOW THEREFORE, in consideration of the mutual premises set forth herein
the parties agree as follows:
I. MANUFACTURING
DDLLC shall manufacture and produce at the Facility and FCAM shall
purchase from DDLLC such curtain wall systems and components ("Products") for
the New York Psych Hospital, Boston Courthouse, JFK Terminal 1 and University
of California Xxxxx projects (the "Projects") described in the specifications
attached to this Agreement as Exhibit A in such quantities as are set forth
therein. DDLLC shall not have any obligation to perform any work requiring the
use of its liquid paint line after May 1, 1997.
II. GENERAL CONDITIONS
A. Inspection
(a) FCAM shall have the right to inspect inventory, work-in
progress and Products to the extent practicable at the Facility. FCAM may also
inspect the Facility or any
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subcontractor engaged pursuant to this Agreement. FCAM shall perform
inspections in a manner that will not unduly delay the work.
(b) FCAM may require DDLLC, at DDLLC's expense, to replace
or correct any Product that is nonconforming at time of delivery. Products may
be deemed nonconforming when defective in material or workmanship or otherwise
not in conformity with the requirements of this Agreement.
B. Independent Contractor
DDLLC, in the performance of the work hereunder, shall be and
act as an independent contractor and not an agent for or employee of FCAM. As
an independent contractor, DDLLC shall not enter into any contract or accept or
assign any document, or incur any liability, expense, obligation or
responsibility on behalf of FCAM without the prior written consent of FCAM.
C. Warranties and Claims
(a) Guaranties and warranties from manufacturers and
suppliers of equipment and materials used in the performance of this Agreement
shall run to DDLLC.
(b) DDLLC shall, at its sole expense, provide an 18 months
parts and labor warranty on any Product found to be defective in manufacture,
workmanship or quality commencing on the date of acceptance of building by
general contractor.
(c) FCAM shall be entitled to file claims against DDLLC for
any failure by DDLLC to comply with the requirements of Exhibit A, or the plans
and specifications ("specifications") provided to and accepted by DDLLC;
provided, however, that in no event shall FCAM be entitled to assert a claim
for less than $1000, nor in excess of $15,000. A claim shall include all direct
costs and expenses arising from any failure to comply with the Specifications.
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D. Licenses and Permits
DDLLC has obtained and shall keep during the
performance of this Agreement all licenses, permits, approvals, franchises,
variances and authorization (federal, state and local) material to the
performance by DDLLC of this Agreement.
E. Delivery
Deliver will be FOB at the Facility.
F. Unenforceable or Invalid Provisions
If any term(s) or provision(s) of this Agreement shall
be finally determined by competent authority to be void or unenforceable under
any applicable state or federal law or municipal or local ordinance or
regulation, such determination shall not affect the remainder of this
Agreement, which thereafter shall be construed in the applicable jurisdiction
as not containing the particular term(s) or provision(s) specifically
determined to be invalid, and the rights and obligations of the parties hereto
shall be construed and enforced accordingly.
III. PRICE AND PAYMENT TERMS
A. FCAM shall pay DDLLC for Products delivered under this
Agreement in accordance with the prices set forth on Exhibit A.
B. FCAM shall make payment to DDLLC for Products delivered
to FCAM by DDLLC within thirty (30) days of the date of delivery or instruction
to hold in storage.
C. Cost Changes
FCAM and DDLLC shall adjust the prices set forth on
Exhibit A in the event that there are any change orders changing the scope of
the work set forth on Exhibit A.
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IV. REPRESENTATIONS AND WARRANTIES
A. Representations and Warranties of DDLLC
DDLLC hereby represents and warrants to FCAM the following:
(a) DDLLC is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, with the
corporate power and authority to conduct its business and to own or lease its
property and assets, and is duly qualified or licensed to do business and is in
good standing as a foreign corporation in the State of Tennessee.
(b) DDLLC has the corporate power and authority to execute, deliver
and carry out the terms of this Agreement and has taken all necessary corporate
action to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. This Agreement is a
legal, valid and binding obligation of DDLLC, enforceable in accordance with
its terms.
B. Representations and Warranties of FCAM
FCAM hereby represents and warrants to DDLLC the following:
(a) FCAM is a corporation for profit, duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
full power and authority to conduct its business and to own or lease its
property and assets.
(b) FCAM has the power and authority to execute, deliver and carry
out the terms of this Agreement and has taken all necessary action to authorize
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by FCAM and is a legal, valid and binding obligation of
FCAM, enforceable in accordance with its terms.
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V. FORCE MAJEURE
DDLLC shall not be liable for any act, omission, result or
consequence, including but not limited to any delay in delivery or performance,
which is (i) due to any act of God, the prior performance of any government
order, local labor shortage, fire, flood or other casualty, governmental
regulation or requirement, shortage or failure of raw material supply, fuel,
power or transportation, breakdown of equipment or any cause beyond DDLLC's
reasonable control whether of similar nature to those above enumerated or
(ii) due to any strike, labor dispute, or difference with workers, regardless of
whether or not DDLLC is capable of settling any such labor problem.
VI. LIMITATION OF LIABILITY
DDLLC's liability hereunder shall be limited to the obligation
to furnish the manufacturing to repair or replace only those Products proven
to have failed to meet the specifications provided to DDLLC by FCAM or to have
been defective in quality or workmanship at the time of delivery or allow
credit therefor, at its option. DDLLC's total cumulative liability in any way
arising from or pertaining to any product sold or required to be sold under
this contract shall not in any case exceed the purchase price paid by FCAM for
such Product.
IN NO EVENT SHALL DDLLC HAVE ANY LIABILITY FOR COMMERCIAL LOSS,
CLAIMS FOR LABOR, OR CONSEQUENTIAL DAMAGES OF ANY OTHER TYPE, WHETHER FCAM'S
CLAIM BE BASED IN CONTRACT, TORT, WARRANTY, OR STRICT LIABILITY, OR OTHERWISE.
IN NO EVENT SHALL DDLLC BE LIABLE FOR ANY CONSEQUENTIAL OR ANY
OTHER DAMAGES RESULTING FROM FAILURE OR DELAY IN DELIVERY. NO DELIVERY DATES
ARE GUARANTEED.
VII. TRANSFER OF POSSESSION AND TRANSFER OF TITLE TO EQUIPMENT AND
REMOVAL OF MATERIALS.
A. FCAM and DDLLC agree that the equipment listed on
Exhibit B ("Equipment") will be removed by DDLLC and from DDLLC's Xxxxxxx City
facility not later than
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June 1, 1997. The parties shall cooperate in the expeditious removal and
transfer of the Equipment. FCAM agrees not to remove the equipment set forth
on Exhibit B under the categories "Equipment at Riverview Drive Plant
Fabrication," "Assembly," and "Welding" from DDLLC's Xxxxxxx City facility
until the earlier of (i) the date DDLLC no longer has a need for the equipment
in completing the scope of work described in Exhibit A, or (ii) June 1, 1997.
B. To the extent that the DDLLC has title to any of the
Equipment, for good and valuable consideration received, DDLLC hereby assigns,
transfers and conveys to FCAM all right, title and interest in and to said
Equipment, free and clear of all liens.
C. In the event that FCAM does not remove the Equipment
and FCAM materials by September 1, 1997, FCAM shall pay rent to DDLLC for
storage at the rate of thirty cents per square foot ($.30/sq. ft.) for inside
storage and ten cents per square foot ($.10/sq. ft.) for outside storage on a
month to month basis. After December 31, 1997, DDLLC shall have the right to
require FCAM to remove all equipment and FCAM materials upon sixty (60) days
prior written notice. (Square footage will be calculated on out to out
dimensions occupied.)
VIII. TAXES
FCAM shall be responsible, pay and discharge all tax
obligations related to (i) the manufacturing of the Products including sales
and use taxes, and (ii) the transfer of equipment, including transfer and
personal property taxes, but excluding taxes based on the net income of DDLLC.
IX. CHANGES IN AGREEMENT
This Agreement may not be altered, changed or amended except by
an instrument in writing signed by both parties hereto.
X. SOLE AGREEMENT
This Agreement is in substitution of any and all agreements
heretofore entered into between the parties hereto for the manufacturing of
Products, and said prior agreements are hereby revoked with reference to all
work starting subsequent to the date hereof.
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XI. AGREEMENT NONASSIGNABLE
This Agreement shall not be assigned by either party without
the express written consent of the other party.
XII. TERM AND CANCELLATION
This Agreement is effective the day and year first above
written and shall continue until completion of the scope of work described on
Exhibit A; provided, however, that DDLLC shall not accept change orders
requiring use of its liquid paint line after May 1, 1997.
XIII. CHOICE OF LAW
This Agreement shall be governed by and construed in accordance
with the laws of the State of Tennessee, except for the conflict of laws
provision thereof.
IN WITNESS WHEREOF, the said parties have hereunto set their hands the
day and year first above written.
XXXXXXX DYNAMICS, INC. FLUOR CITY ARCHITECTURAL
a Delaware limited liability company METALS, INC.
By: /s/ XXXX X. XXXXX By: /s/ XXXXXXX X. XXXXX
Title: President Title: President
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