EXHIBIT 10.6
KDA FINANCIAL PROJECT DEVELOPMENT AND
CONSTRUCTION AGREEMENT
This Agreement is between: FUTURUS FINANCIAL SERVICES, INC.
0000 XXXXXX XXXX
XXXXXXX, XXXXXXX 00000
(hereinafter referred to as "Owner") and KDA FINANCIAL, INC., MARIETTA, GEORGIA
(hereinafter referred to as "KDA", "Consultant", "Architect", and "Construction
Manager" as the context requires).
Owner engages KDA to: PLAN, DESIGN, EQUIP, FURNISH AND
INSTALL A NEW MAIN OFFICE AT THE SOUTHWEST CORNER
OF WINDWARD PARKWAY AND JORDAN COURT IN ALPHARETTA,
GEORGIA.
Under the following terms & conditions:
I. PHASE I: CONSULTING AND SCHEMATIC DESIGN
KDA, through its agents and employees shall render Consulting and Architectural
services as set forth hereinafter.
A. Analyze Owner's organization to include services, operations, existing
facility(ies), departmentalization, space utilization, work flow, equipment
and the utilization and function of all personnel.
B. In addition to the above, the following review and analysis will be done:
- Determine Owner's preferences in facility type and architectural style.
- Review and determine facility needs, personnel and space requirements.
- Determine whether special equipment may be required.
- Establish budgetary considerations with the Owner.
- Analyze growth patterns of the institution and the community.
- Review traffic patterns along with proposed transportation improvements
that may impact the project.
C. Based on the analysis and investigation, KDA will prepare a written
architectural program consisting of those above-mentioned components which
shall be used by the design team to develop the Schematic Design solution
that includes:
1. Site Plan.
2. Floor Plan and Function.
3. Exterior Concept.
D. Based on the design solution, KDA shall develop a "Budget Estimate of
Construction Cost" (See Section IV.A.) for the project to include the
following:
- Site Work.
- Building Work.
- Interior Work.
- Security Equipment.
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E. KDA shall make diligent effort in the development of the above and present
the design solution and cost to the Owner within a maximum of sixty (60) days
from the date of contract and receipt of all information required from the
Owner.
II. PHASE II: DESIGN DEVELOPMENT
With Owner's approval of the Schematic Design and Budget identified in Phase I
above, and with written authorization for KDA to continue the design process,
KDA and the architect shall proceed with the Design Development Phase (Phase
II).
A. The Design Development Phase shall consist of the following as required:
- Detailed Site Plan.
- Floor plan(s) and Function.
- Exterior Elevations.
- Reflected Ceiling Plan(s).
- Preliminary Engineering Documents (structural, mechanical and
electrical).
- Typical Wall Sections.
- Security System Considerations.
- Furniture Floor Plan(s).
- Written Scope of Work to include both General Work and Interior Work.
- Exterior Rendering(s).
- Interior Rendering(s).
- Estimate of Construction Cost (See Section IV.B.).
- Interior Finish and Sample Boards.
B. Concurrent with, and included in the above, KDA shall prepare a design
solution for the interior areas of the facility illustrating functional
planning, special equipment requirements, interior decorating, lighting,
furnishings and finishes.
C. KDA shall prepare the Estimate of Construction Cost (See Section IV.B.)
which shall be confirmed in writing and guaranteed per Phase II. (See
Section II.D.1.,D.2. & D.3) This Estimate of Construction Cost shall
include:
1. The cost of construction including subcontract work; interior work;
reproduction of documents; any required renderings; all costs
associated with civil, soils, environmental or other construction
tests, surveys or consulting fees required by the owner or any
governmental agency; permit fees; materials; tools; tool rentals;
supplies; equipment; utilities; premiums for worker's compensation and
comprehensive general liability insurance; reasonable superintendent
travel and living expense; wages, salaries and benefits of any KDA
field personnel engaged at the project or owner location; reasonable
travel expenses to the project by the consultant, designer, architect,
engineers, project development or project management personnel;
subcontractor and vendor guarantee; material handling; shipping; and
any other project related expenses that may be incurred in the
development and construction of the project. There will also be
included in the estimate of construction cost, KDA's construction
management overhead expense and fee for the project.
2. Items for which a definite cost cannot be established shall be
identified in the Estimate of Construction Cost as an "Allowance" (See
Section IV.D.). The Estimate of Construction Cost will be adjusted up
or down based on the actual cost incurred for such items.
3. Estimate of Construction Cost WILL NOT INCLUDE the following items:
a. Cost of real estate.
b. Business machines, ATM's, telephone systems, music systems or
similar equipment.
c. Consulting, architectural and engineering fees.
d. Sales, use, privilege, value added taxes or similar levies.
e. Performance and Payment Bonds.
f. Reimbursable Expenses as defined in Section V. D. 1. - 2.
g. Interior plantscaping.
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D. Guaranteed Cost
1. KDA guarantees that the Final Construction Cost shall not exceed the
Estimate of Construction Cost (as defined in Section IV.B. & C.), plus
changes in the work authorized by the Owner, and allowance item
adjustments affecting the final cost of the project, by more than ten
percent (10%).
2. Should the final construction cost be less than the estimate of
construction cost, a savings will result. KDA shall be paid an
incentive equal to twenty percent (20%) of the savings for the first
ten percent (10%) and the owner shall receive eighty percent (80%) of
the savings for the first ten percent (10%). The owner shall receive
any and all savings exceeding the first ten percent (10%).
3. Should the final construction cost exceed the estimate of construction
cost, an overage will result. KDA shall absorb twenty percent (20%) of
the overage for the first ten percent (10%) and the owner shall pay
eighty percent (80%) of the overage for the first ten percent (10%).
Any overage exceeding the first ten percent (10%) shall be absorbed by
KDA.
Upon written approval by the Owner of the Design Development and
Confirmation of Estimate of Construction Cost (Exhibit I attached), and
with the Owner's authorization to proceed, KDA shall perform Phase III of
this agreement.
III. PHASE III: CONSTRUCTION DOCUMENTS AND CONSTRUCTION MANAGEMENT
A. Construction Documents
1. Prepare Construction Documents for the project consisting of working
drawings and specifications setting forth in detail and prescribing the
work to be accomplished and the materials, workmanship, finishes and
equipment required for the architectural, interiors, structural,
security systems and equipment, mechanical, electrical and site work.
2. Expedite the Construction Documents and such other documents as
Construction Manager may deem necessary to permit the earliest
reasonable start of construction.
3. Include in Construction Documents appropriate General Conditions which
define the duties, rights, responsibilities and relationship of all
parties.
4. Warrant the Construction Documents to be in compliance with existing
laws, building regulations and ordinances in force where the project is
located.
B. KDA Responsibilities
1. Total responsibility for the performance of all work necessary for the
satisfactory completion of the project in accordance with the
Construction Documents.
2. Replacement of work found to be defective within one ( 1 ) year
following substantial completion of the project.
3. Incorporate into the documents any changes in the work authorized in
writing, by the Owner.
4. Furnish all labor, materials, tools, equipment and services required to
perform all work as defined in the Construction Documents.
5. Secure bids or quotations for materials, services and subcontracts for
general work and determine the most acceptable suppliers or
subcontractors. If the Owner elects to use a subcontractor or supplier
other than the low qualified bidder that KDA recommends, KDA shall be
entitled to a change order from the Owner to compensate KDA for any
increase in cost that is the result of using the Owner's preferred
subcontractor or material supplier.
6. Prepare and issue all purchase orders, subcontracts and any other
construction related documents.
7. Furnish and install interior work from KDA's own sources (See Section
IV.E.).
8. Provide a competent superintendent and other project related employees
to direct and coordinate the work.
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9. Prepare job payrolls and related government reports.
10. Maintain proper records and keep an accurate and detailed account of
all transactions resulting from the performance of the work.
11. Maintain Worker's Compensation and Comprehensive General Liability
insurance.
12. Prepare and issue checks for payment of the work, drawn on the Owner's
Construction account, detailing each item to be paid.
13. Upon completing the work, provide the Owner with a detailed final
statement of cost called Final Billing (IV.G.).
14. Furnish all working drawings and specifications required of the
construction work.
15. Assist Owner in normal filing of documents for approval of authorities
governing construction. Should an inordinate amount of time be required
to gain such approvals, KDA shall submit to the Owner in advance, a
statement of anticipated cost and such cost shall be a reimbursable
expense.
16. Make periodic and timely inspections of the work to insure compliance
with the intent of the Construction Documents.
17. Check and approve shop drawings, samples, schedules and other
submittals for compliance with the design intent of the construction
documents, review laboratory tests, prepare change orders, make
periodic inspections, assemble written guarantees and maintenance
manuals and secure the Certificate of Substantial Completion.
C. Owner's Responsibilities
1. Designate and empower a representative who has the express authority to
bind the Owner with respect to all matters requiring the Owner's
approval or authorization, who will be reasonably available to render
decisions promptly and furnish information expeditiously so as to avoid
delay in the work.
2. Inform KDA of any special requirements, contemplated changes in
operations, new or expanded services, provide historical data and
anticipated growth projections, identify preferences, if any, regarding
architectural style, materials, colors and finish quality.
3. Furnish, at Owner's expense, a Certified Land Survey, Subsurface Soil
Investigation and Analysis, and such other tests as may be required by
law or for the construction of the project. The type survey and type
soil test will, however, be recommended with proposals solicited and
reviewed by KDA. KDA shall recommend a preferred vendor to the Owner
based on KDA's analysis of the proposals, and include the projected
costs for this work in the estimate of construction.
4. Be responsible for the accuracy of above mentioned data and information
furnished.
5. Select and furnish legal services required for the normal progress of
the work and same shall be paid by the Owner.
6. Establish a Construction Account at an institution of Owner's choice at
the start of construction work and deposit funds necessary to cover
properly supported costs, as incurred.
7. Maintain complete liability insurance against loss or damage by theft,
vandalism, malicious mischief, fire, windstorm or other casualty for
all work incorporated in the building and project, and all materials on
or about the premises or in storage, and all interior work items
incorporated in the building or in off-site storage. The type of
coverage as described is generally referred to as "builders risk" or
"all risk" insurance. Owner should consider obtaining Owner's
protective liability insurance for the project to provide coverage that
may be outside the scope of coverage identified above.
8. Promptly notify KDA in writing of any observed defects in construction.
9. Promptly make all payments required by this Agreement.
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IV: TERMS USED IN THIS AGREEMENT
The following terms are used in this agreement and are further explained as
follows:
A. Budget Estimate of Construction Cost: KDA shall prepare an initial Estimate
of Construction Cost based upon the scope of the work as identified in the
initial or preliminary stage, Schematic Design (Phase I). Such an estimate
is expected to be accurate only to the extent of known conditions and
details identified at the time.
B. Estimate of Construction Cost: At the Design Development Phase (Phase II),
substantially greater information has been developed by the architect,
consulting engineers, the interior designer and construction manager.
Certain value engineering has been performed as well, to determine the most
acceptable and cost effective construction methods to be used and their
relative cost. The Estimate of Construction Cost, as identified in Phase
II, shall become a Guaranteed Estimate and shall be presented to the Owner
in the form of a Confirmation of Estimate of Construction Cost (Exhibit I,
attached). The Estimate of Construction Cost and the Guaranteed Cost,
agreed to by the parties, shall only be adjusted by change order, signed by
both parties or by adjustments to allowance items (see Section IV.D.).
C. Guaranteed Cost: The Estimate of Construction Cost (See Section IV.B.
above) shall become a guaranteed cost according to the incentive for
savings or overage. The Guaranteed Cost shall be formally issued when both
parties sign the Confirmation of Estimate of Construction Cost and KDA is
directed to commence with Phase III, Construction Documents and
Construction Management. The incentive, outlined in the Guaranteed Cost
provision (Section II.D.) is determined by comparing the Final Construction
Cost against the Estimate of Construction Cost established in Phase II and
contained in the Confirmation of Estimate of Construction Cost (Exhibit I).
D. Allowances: Construction cost allowances are items of work that cannot be
accurately specified or selected at the time that design documents are
prepared due to complete information not being available. A reasonable
budget is established for each of these allowance items. The final cost of
these allowance items adjusts the Estimate of Construction Cost (See
Section IV.B.) in full (either up or down) depending on whether the final
cost is greater than or lesser than the budget established for the
allowance item in the Estimate of Construction Cost and identified on the
Confirmation of Estimate of Construction Cost (Exhibit I).
E. Interior Work: Interior work is herein defined, as compared to general
work, as the interior finishes of the building or facility, including floor
covering, wallcovering, painting, moveable furniture, art work,
accessories, custom cabinet work, interior signage, special lighting, and
window treatments. Interior work is stated as a separate line item in all
Estimates of Cost prepared by KDA and shall be provided to the project at a
lump sum price, agreed to in advance by the parties, and shall be secured
from KDA's own sources. KDA's term "interior work" includes specifying,
procuring, receiving, delivering, on site supervision, and installing such
goods, to include their cost, shipping, handling, tax and labor to install
under one contract and KDA guarantees the goods, materials and workmanship
of the "interior work."
F. Insurance: KDA is responsible for and provides Worker's Compensation and
General Liability Insurance and shall be reimbursed. The Owner provides
Builder's Risk Insurance and should obtain Owner's Protective Liability
Insurance. All insurance provided by KDA is considered a cost of the work
and is paid for through the job. Insurance provided by the Owner is not
considered a cost of the work.
G. Final Billing: After the completion of the job and the receipt of payment
of all outstanding bills, KDA shall prepare a final accounting for the
project called its "final billing" and any credits or adjustments due KDA
or the Owner will be made at this time. The final actual cost of
construction shall be the actual amount paid for all cost of construction
(II.C.1. & C.2.).
H. Final construction cost: the final actual cost of construction is the
actual amount paid for all costs of construction (II.C.1.& C.2)
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V: KDA'S FEES AND FURTHER CONTRACT PROVISIONS
A. KDA's Design Fee:
The fee for professional services rendered by KDA in the design of the
Owner's project are as follows and such fees are not included in any
Estimates of Construction Costs. For all consulting, architectural,
engineering, Interior Design Review and Coordination, and Estimating
services, a 9% fee, based on Final Construction Cost shall be due. The fee
shall be paid as follows:
1. Upon completion of the Schematic Design phase (Phase I), 15% of the
design fee, computed on the Budget Estimate of Construction Cost (Phase
I. D.) shall be due.
2. Upon completion of the Design Development phase (Phase II), 50% of the
design fee, computed on the Estimate of Construction Cost (Phase II.
C.), less previous payments, shall be due. If the Design Development
phase extends beyond 30 days, KDA shall be paid this fee monthly in
proportion to the Design Development phase services performed.
3. Upon completion of the Construction Documents phase (Phase III), 95% of
the design fee, computed on the Estimate of Construction Cost developed
by KDA in Phase II, less previous payments, shall be due. If the
Construction Documents phase extends beyond 30 days, KDA shall be paid
this fee monthly in proportion to the Construction Documents phase
services performed.
4. Upon completion of construction, 100% of the design fee, computed on
the Final Construction Cost of the project, less previous payments,
shall be due. KDA shall be paid this fee monthly in equal payments,
based on the estimated construction time, so that upon completion of
construction, 100% of the design fee will have been paid.
B. Construction Management Overhead and Fee
1. For Construction Management services furnished to the project, KDA
shall be paid 10% for Construction Management overhead expenses
included within the Estimate of Construction Cost for the project
(II.C.1 & C.2.). KDA shall be paid a 5% fee included within the
Estimate of Construction Cost for the project. KDA's Construction
Management overhead expense and fee will be billed and paid as a
percentage of the agreed Confirmation of Estimate of Construction Cost
(Exhibit I), which overhead expense and fee will later be adjusted
based on actual Final Construction Cost.
Timing of Payments
a.) KDA's Overhead expense and fee payments shall be made as follows:
Twenty-five percent (25%) due thirty (30) days after approval of
Construction Documents, or start of construction, whichever occurs
first, and in equal monthly payments thereafter based on estimated
construction time.
b.) Interior work payments set out in the Confirmation of Estimate of
Construction Cost shall be paid as follows: Twenty-five percent
(25%) due thirty (30) days after approval of Construction
Documents, or start of construction, whichever comes first, and
monthly thereafter in equal payments based on estimated
construction time.
2. In the event the Owner adds work which increases scope and the cost of
the Project, the Estimate of Construction Cost (IV.B.) will be
increased by the total cost of the change plus the overhead expense and
fee described in Section V.B.1.
3. In the event a deductive change order is agreed to, the Estimate of
Construction Cost will be decreased by the total of the estimated cost
of the deleted work, plus KDA's fee on the estimated cost of the
deducted work.
4. In the event the actual Final Construction Cost is less than the
Estimate of Construction Cost (IV.B.), the overhead expense and fee
shall be adjusted to reflect the actual final Construction Cost.
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C. Additional Services
Owner may request the following Additional Services which shall be paid for
by the Owner; however, prior to the Additional Services being rendered, KDA
and the Owner shall reach a mutual agreement as to the cost of the
additional service. These costs will be billed separately and are not a
part of the guaranteed maximum cost nor are these items part of any
estimates and are to be paid separately by the Owner:
1. Making alternative site evaluation studies of prospective sites.
2. Preparing documents for alternate bids for tenant or rental layouts.
3. Revising documents previously approved by Owner.
4. Preparing documents for change orders requiring extensive modifications
of the work.
5. Obtaining any necessary or applicable permits requiring extensive or
unusual effort shall entitle KDA to payment for additional services at
a mutually agreed price. This work, if required, is not reflected in
KDA's cost estimates or basic fees.
6. Cost of models or additional renderings requested by Owner.
D. Reimbursable Expenses
The following costs, expenses, and activities may become necessary during
the course of the engagement. KDA shall provide an estimate of such cost to
the Owner in advance of incurring any such cost or expense and shall gain
Owner's approval prior to proceeding. These costs will be billed separately
and are not part of the guaranteed maximum cost nor are these items part of
any estimates. They are to be paid separately by the Owner.
1. Special Engineering Consultant Fees for other than normal structural,
mechanical, and electrical engineering services.
2. All sales, use, privilege, value added, or similar taxes or levies and
premiums for performance and payment bonds if required by Owner. (See
G. below).
E. Expenses Incurred Prior to Construction
Costs incurred prior to the start of construction will be billed by KDA and
paid for by the owner as incurred. The costs may include: permits by local
building officials; reasonable travel expenses; boundary and topographical
survey; civil engineering; environmental surveys and subsurface soils
survey. These expenses will be included within the Estimate of Construction
Cost.
F. Indemnity
KDA shall indemnify, protect and hold Owner, its Directors, Officers and
employees harmless from any and all damages to persons or property arising
out of the negligence of KDA, resulting from or incurred in connection with
the execution of the work described in this Agreement.
G. Taxes
Neither the Fees for KDA services, nor the Estimate of Construction Cost
include any sales, value added, use, excise, school, privilege, or any
similar taxes or levies. Owner agrees to reimburse KDA for such taxes, if
any, for which either becomes legally responsible as a direct result of
fulfilling this Agreement. It should further be noted that premiums for
performance and payment bonds are not included in the Estimate of
Construction Cost but same shall be paid by the Owner, if required.
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H. Ownership of Documents
At any time prior to the parties agreeing on the Estimate of Construction
Cost (in Phase II of the Agreement) the Owner may elect not to proceed
further under this Agreement. Such election must be given in writing. In
the event the Owner elects not to proceed (before an agreement is reached
based on the Confirmation of Estimate of Construction Cost), all documents,
including design documents having been prepared by KDA and the Architect,
shall be considered instruments of service and shall remain exclusively the
property of KDA and the Architect. Without the written consent of KDA and
the Architect, said documents shall not be used in any manner, in whole or
in part, on this project or any other project. Moreover, in the event after
the completion of Phase I or Phase II (Schematic Design or Design
Development) the Owner decides not to go forward with the project, the
Owner is nevertheless obligated to pay for the services rendered in
accordance with the compensation paragraph (V.A.1. and 2.). Until the
parties have mutually agreed upon the Estimate of Construction Cost, either
party shall have the right to unilaterally terminate this Agreement.
I. Execution of Agreement by Owner
The undersigned officer of the Owner represents that he or she is
authorized to enter into this Contract on behalf of the Owner.
J. Acceptance
This Agreement is subject to final acceptance by the President or Secretary
of KDA at the offices of KDA in Marietta, Georgia, and the date of such
acceptance shall be the date of this Agreement.
K. Exclusivity
The Owner hereby acknowledges that KDA is committed to investing material,
technical and personnel resources in developing a design solution and cost
estimate for the Owner's project. In consideration, the Owner agrees to
work exclusively with KDA during the development of the project, or until
such time as the Owner terminates in writing the services of KDA. Should
the design solution and cost estimate submitted in the development phases
be approved, the Owner intends to authorize KDA to proceed into Phase III,
Construction Documents and Construction Management.
L. Applicable Law/Dispute Resolution
The law of the State where the project is located shall apply to all
interpretation of this Agreement. The parties do further agree that in the
event they have a dispute involving items of work or issues of $30,000 or
less, the parties do mutually agree to seek to resolve their differences by
pursuing mediation through the use of a professional mediator mutually
agreed upon by the parties. If the matter is not resolved after the
conclusion of the mediation, any single or cumulative disputes remaining
between the parties that have a value of $30,000 or less shall be resolved
by arbitration under the rules and auspices of the American Arbitration
Association, and the ruling by the Arbitration Association shall be binding
on both parties. That American Arbitration Association office located
closest to the project shall be utilized for such an arbitration. The
parties will split all mediation and arbitration filing fees and costs. For
claims in excess of $30,000 the parties may seek a remedy in any
appropriate court whose jurisdiction covers the site of the project.
M. Confidentiality
It is understood that certain confidential and proprietary information
regarding the Owner's business shall be gained by KDA while working for the
Owner in the preparation of Phase I, as well as through the design and
construction of facilities. KDA agrees to exercise reasonable care in
maintaining the confidentiality of all information gained through this
relationship.
N. Scope of Agreement
This Agreement represents the entire understanding between Owner and KDA
and supersedes all prior Agreements, understandings and negotiations. This
Agreement may be modified only in writing. Owner and KDA understand, agree,
and acknowledge that this Agreement has been freely negotiated by the
parties, and that in any controversy, dispute, arbitration, or contest over
the meaning, interpretation, validity or enforceability of this Agreement;
or any of its terms and conditions, there shall be no interference,
presumption or conclusion drawn whatsoever against either party by virtue
of the party having drafted this Agreement or any portion thereof.
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The following Addendum is a part of this Agreement:
ADDENDUM NO. 1
This Agreement shall not be assigned by either of the parties without the
written consent of the other party and shall be binding on and inure to the
benefit of the successors, executors, administrators and heirs of the
parties.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals to this
Agreement on the dates shown below, in triplicate.
APPROVED
FUTURUS FINANCIAL SERVICES, INC.
ROSWELL, GEORGIA
BY: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, President & CEO
DATE: September 28, 1999
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Corporate Seal:
Accepted at Marietta, Georgia this 2nd day of October, 1999.
KDA FINANCIAL, INC.
MARIETTA, GEORGIA
BY: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx, President
DATE: October 2, 1999
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Corporate Seal:
Issued: 9/15/99 Reissued 9/17/99
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CONFIRMATION OF
ESTIMATE OF CONSTRUCTION
In accordance with the requirements of the PROJECT DEVELOPMENT AND CONSTRUCTION
AGREEMENT between________________________________ and KDA Financial, Inc., dated
__________, the ESTIMATE OF CONSTRUCTION COST IS.
ALLOWANCES:
The estimated cost shown above includes the following items on an allowance
basis:
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ITEM ALLOWANCE ITEM ALLOWANCE
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INTERIOR WORK:
Construction Manager shall furnish and install the Interior Work for the sum of
$______________________, which is included in the Estimate of Construction set
forth above.
TIME OF COMPLETION:
It is intended that the project will be substantially completed, ready for
occupancy by Owner _______________after receipt of Permit, subject to strikes,
lock-outs, Acts of God and other causes not the sole and direct fault of the
Construction Manager. For this purpose, the Construction Manager shall act
promptly to establish a Work Program under which the project will proceed with
all possible speed, consistent with reasonable cost, good workmanship and
safety.
WORK TO BE DONE:
The work to be done is that defined by the Plans and Specifications dated
_____________________________approved by Owner on _________________________.
These Plans and Scope of Work, as approved, are incorporated in this Agreement
by reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in
duplicate, on the dates shown below.
Approved and Accepted this _______ day of _________________________, 1999.
KDA FINANCIAL, INC. OWNER
BY: BY:
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TITLE: TITLE:
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ADDENDUM NO. 1
This Addendum will modify the Project Development and Construction Agreement
dated
September 28, 1999 (the "Agreement") between FUTURUS FINANCIAL SERVICES, INC.
("Owner") and KDA FINANCIAL, INC., Marietta, Georgia ("KDA").
I. Section III.B.15. Change the first sentence to read, "KDA will perform
the normal filing of documents for approval of authorities governing
construction, upon receipt of any required data from Owner."
II. Section II.B. Add a Paragraph 18 that reads, "The Architect will
conduct monthly field visits. The Architect will forward to the Owner a
copy of the field visit report after each visit."
III. Section V.C. Add the following sentences that read, "KDA will develop,
with the Owner's assistance, a pro-forma of identifiable project
related costs including operating costs generally included in rental
rate (taxes, janitorial, etc.) not covered within the KDA scope of work
to assist the Owner in identifying the total rental cost of the
facility."
IV. Delete Section V.H. Add the following Paragraph titled "Termination and
Assignment": "At any time prior to the parties agreeing on the Estimate
of Construction Cost (in Phase II of the Agreement) the Owner may elect
not to proceed further under this agreement. Such an election must be
given in writing. If requested by the Owner, KDA agrees to assign its
contractual agreement with the Architect to the Owner to provide
Architectural and Engineering Services for the project. This assignment
would be made on the condition that the Owner shall:
A. Pay immediately any earned fees due the Architect and KDA not paid
to date by the Owner.
B. Retain the Architect and/or KDA throughout the completion of
construction phase services, or agree to indemnify the Architect
and/or KDA against misuse of, or changes to, the Architect and/or
KDA documents.
C. Acknowledge the Architect and KDA's plans and specifications are
instruments of service.
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D. Not assign the rights to the Architect and KDA's plans and
specifications to anyone without the Architect and KDA's written
consent.
E. Accept the terms and conditions of KDA's agreement with the
Architect.
FUTURUS FINANCIAL SERVICES, INC., OWNER KDA FINANCIAL, INC.
BY: /s/ Xxxxxxx X. Xxxxxx BY: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxx, President & CEO Xxxxxx X. Xxxxxxxx, President
DATE: September 28, 1999 DATE: October 2, 1999
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