[CRB BUILDERS LLC LOGO] EXHIBIT 10.21
00000 XXXXXX XXXXX, XXXXX 000
XX. XXXXX, XX 00000
PHONE: (000) 000-0000
FAX: (000) 000-0000
AGREEMENT FOR DESIGN/BUILD SERVICES
ON A GUARANTEED MAXIMUM COST BASIS
This Agreement is made and entered into this 19th day of March, 2003, by and
between Serologicals Corporation (Owner) and CRB Builders.
In consideration of the mutual covenants and agreements set forth herein, Owner
and CRB Builders agree as follows:
ARTICLE 1
GENERAL PROVISIONS
CRB Builders agrees to furnish or arrange for the architectural, engineering and
construction services set forth herein and required for completion of the
Project.
1.1 Definitions
1.1.1 The Project is the design and construction of Project BETA to be located
on property of Owner situated in Lawrence, Kansas.
1.1.2 The Work is the design and/or construction services required to complete
the Project.
1.1.3 The Contract Documents, which constitute the entire Agreement between the
Owner and CRB Builders, consist of:
.1 This Agreement and all exhibits hereto.
.2 Conceptual and Preliminary Design Documents produced under a
previous Purchase Order and this Agreement.
.3 Final design drawings, construction working drawings and
specifications produced under this Agreement.
.4 Change Orders.
.5 Written amendments to this Agreement.
1.2 Extent of Agreement
The Contract Documents represent the entire agreement between the Owner and CRB
Builders and supersede all prior negotiations, representations or agreements.
This Agreement shall not be superseded by any provisions of the documents for
construction and may be amended only by written instrument signed by both the
Owner and CRB Builders. Owner may issue purchase orders to CRB Builders to
satisfy Owner's purchasing requirements. It is agreed that the terms and
conditions included in such purchase orders shall be considered deleted for
purposes of this Project.
ARTICLE 2
CRB BUILDERS RESPONSIBILITIES
2.1 CRB Builders Services
CRB Builders shall furnish or arrange for the following services for execution
and completion of the Agreement, which shall constitute the "Work," through its
employees or subcontractors.
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2.1.1 CRB Builders shall provide the architectural and engineering design for
the Project in accordance with the laws of the state in which the Project in
located. The design shall be performed with the skill and care which would be
exercised by comparable qualified professional architects and engineers
performing similar services at the time such services are performed.
2.1.2 CRB Builders will secure the construction building permits necessary for
the construction of the Project, on behalf of the Owner.
2.1.3 CRB Builders shall keep such accounts as may be necessary for financial
management under this Agreement, and shall furnish the Owner with an estimated
cash flow schedule for the Project. CRB Builders shall provide the Owner with a
Schedule of Values allocated to major segments of work for the Project.
2.1.4 CRB Builders will provide the Owner with an estimated design and
construction schedule for the Project. This Schedule shall indicate the
approximate dates for the starting and completion of the various stages of the
design and construction, and shall contain the necessary information to allow
the Owner to monitor the progress of the Work. It shall be revised as required
by the conditions of the Work and those conditions and events which are beyond
CRB Builders' control.
2.1.5 CRB Builders will provide all materials and equipment, supervision,
inspection, testing, labor, tools, construction equipment and specialty items
necessary to execute and complete construction of the Project.
2.1.6 CRB Builders shall take necessary precautions for the safety of its
employees on the Work, and shall comply with all applicable provisions of
federal, state and municipal safety laws and shall include in all subcontracts
provisions which require its subcontractors to be responsible for the safety of
their employees on the Work, and to comply with all applicable provisions of
federal, state and municipal safety laws. It is agreed that CRB Builders shall
have no responsibility for the abatement of safety hazards resulting from work
at the job site carried on by other persons or by the Owner's separate
contractors, or by the Owner or persons for which it is responsible, and the
Owner will comply with, and agree to cause any such separate contractors or
persons to comply fully with, all applicable provisions of federal, state and
municipal safety laws and regulations.
2.1.7 CRB Builders shall give notices and comply with laws, ordinances, rules,
regulations and lawful orders of public authorities relating to the Project.
2.1.8 CRB Builders shall pay royalties and license fees required by the Work.
CRB Builders shall defend suits or claims for infringement of patent rights and
shall save the Owner harmless from loss on account thereof, except that the
Owner shall be responsible for such loss when a particular design, process or
product of a particular manufacturer is required by the Owner.
2.1.9 CRB Builders shall keep the premises of the Project free from accumulation
of trash and other debris caused by CRB Builders' operation. At the completion
of the Work, CRB Builders shall remove from the Project its tools, surplus
materials, construction equipment and machinery.
2.1.10 CRB Builders shall prepare Change Orders for the Owner's approval and
execution in accordance with this Agreement.
2.1.11 CRB Builders shall maintain in good order at the site one record copy of
the drawings, specifications, product data, samples, shop drawings, Change
Orders and other Modifications, marked currently to record major changes made
during construction. These shall be delivered to the Owner upon completion of
the Project and final payment. As-built drawings will be delivered at the end of
the project in the format consistent with the original design documents.
2.2 Warranties and Completion
2.2.1 CRB Builders warrants to the Owner that all materials and equipment
furnished under this Agreement will be new, unless otherwise specified, and that
all construction work will be of good quality, free from improper workmanship
and defective materials. This warranty does not include defects caused by Owner
modification, abuse, improper maintenance or operation. CRB Builders agrees to
correct all work performed by it under this Agreement which proves to be
defective in material or workmanship within a period of one (1) year from the
date of Substantial Completion as defined in paragraph 5.2.1, provided that this
warranty covers equipment, accessories and parts manufactured by others only to
the extent of liability to CRB Builders on the part of the manufacturer thereof,
and no warranty is provided for Owner provided equipment. Any warranty or
guarantee obtained by CRB Builders from any such manufacturer shall be deemed to
have been obtained for the benefit of the Owner. The foregoing warranties are in
lieu of all other warranties, express or implied, including but not limited to,
the implied warranties of merchantability and fitness for purpose.
2.2.2 CRB Builders will secure required certificates of inspection, testing or
approval required for building construction and deliver them to the Owner.
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2.2.3 CRB Builders will collect all equipment manuals and deliver them to the
Owner, together with all written warranties from equipment manufacturers, and
CRB Builders will have no further obligation with respect to them.
ARTICLE 3
OWNER'S RESPONSIBILITIES
3.1 The Owner shall provide full information regarding its requirements for the
Project.
3.2 The Owner shall designate a representative who shall be fully acquainted
with the Project, and have authority to approve changes in the scope of the
Project, render approvals and decisions promptly, and furnish information
expeditiously and in time to meet the dates set forth in the Schedule. The
Owner's designated representative is Xxx XxXxxx.
3.3 The Owner shall furnish, for the site of the Project, topographical surveys
describing the physical characteristics; soils reports and subsurface
investigations; legal limitations; utility locations; and a legal description,
including a property survey and Project benchmark, and warrant the accuracy of
such information.
3.4 The Owner shall secure and pay for necessary approvals, easements,
assessments and charges required for the construction, connection, use, or
occupancy of permanent structures or for permanent changes in existing
facilities.
3.5 The Owner shall furnish such legal services as may be necessary for
providing the items set forth in Paragraph 3.4, and such auditing services as it
may require.
3.6 If the Owner becomes aware of any fault or defect in the Work or
nonconformance with the Drawings or Specifications, it shall give prompt written
notice thereof to CRB Builders.
3.7 The Owner shall provide the insurance for the Project as provided in
paragraphs 10.4 and 10.5. Owner shall bear the cost of any bonds that it may
require to be maintained in connection with the Project.
3.8 The services and information required by the above paragraphs shall be
furnished with reasonable promptness at Owner's expense and CRB Builders shall
be entitled to rely upon the accuracy and the completeness thereof.
3.9 The Owner shall furnish reasonable evidence to CRB Builders, prior to
signing this Agreement, or any time thereafter that sufficient funds are
available and committed for the entire Cost of the Project. If CRB Builders
elects to proceed with work without having received such evidence, it may stop
work upon fifteen (15) days notice if such evidence has not been furnished
within a reasonable time after such request.
3.10 The Owner upon reasonable written request shall furnish CRB Builders in
writing information which is necessary and relevant for CRB Builders to
evaluate, give notice of or enforce Mechanic's Lien rights. Such information
shall include a correct statement of the record legal title to the property on
which the Project is located, and the Owner's interests therein at the time of
execution of the Agreement and, within five (5) days after any change in title.
3.11 The Owner shall have no contractual obligation to CRB Builder's
subcontractors and shall communicate with such subcontractors only through CRB
Builders.
3.12 The Owner shall pay for all utility connection fees and special facility
charges rendered by utilities for connection of permanent utility services to
the Project.
ARTICLE 4
SUBCONTRACTS
4.1 All portions of the Work that CRB Builders does shall be performed under
subcontracts. CRB Builders shall select competent subcontractors and shall be
responsible for the management of the subcontractor's performance of their work.
4.2 A Subcontractor is a person or entity which has a direct contract with CRB
Builders to perform any work in connection with the Project. The term
Subcontractor does not include any separate contractor employed by the Owner or
the separate contractors' subcontractors.
4.3 No contractual relationship shall exist between the Owner and any
subcontractor of CRB Builders.
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ARTICLE 5
CONTRACT TIME SCHEDULE AND SUBSTANTIAL COMPLETION
5.1 Contract Time
5.1.1 The Work to be performed under this Agreement shall be commenced on or
about September 30, 2002, and shall be substantially completed in accordance
with the Schedule provided pursuant to Paragraph 2.1.4. Initial design began
September 30, 2002 with a Letter of Approval dated October 3, 2002 which shall
be considered done under this contract agreement.
5.1.2 The term day as used in the Contract Documents shall mean calendar day,
unless otherwise specifically designated.
5.2 Substantial Completion
5.2.1 The Date of Substantial Completion of the Project or a designated portion
thereof is the date when construction is sufficiently complete in accordance
with the Drawings and Specifications so the Owner can occupy or utilize or, in
fact, does occupy or utilize, the Project or designated portion thereof for the
use for which it is intended.
5.2.2 The Date of Substantial Completion shall be established by a Certificate
of Substantial Completion signed by the Owner and CRB Builders and shall state
their respective responsibilities for security, maintenance, heat, utilities,
damage to the Work and insurance. This Certificate shall also list the item to
be completed or corrected (if any) and fix the time for their completion and
correction. Disputes between the Owner and CRB Builders regarding the
Certificate of Substantial Completion shall be resolved by arbitration.
5.3 Commencement of Warranties
5.3.1 Warranties called for by this agreement or by the Drawings and
Specifications shall commence on the Date of Substantial Completion of the
Project or designated portion thereof, as reflected by the Certificate of
Substantial Completion.
5.4 Delays
5.4.1 If CRB Builders is delayed at any time in the progress of the Project by
any act or neglect of the Owner, by any separate contractor employed by the
Owner or by the action of any governmental agency or regulatory body, or by
changes ordered in the Project, or by labor disputes, fire, unusual delay in
transportation, unusual delay in issuance of building permits or zoning or
utility services, unusual delay or shortages in material supplies, adverse
weather conditions not reasonably anticipatable, unavoidable casualties, acts of
God, or any other causes beyond CRB Builders control, then the Schedule shall be
extended for the period of such delay upon application therefor by CRB Builders.
5.4.2 If CRB Builders is delayed by any act or neglect of Owner or by any
separate contractor employed by Owner, CRB Builders will be compensated for all
costs which it incurs as a result of such delay, and a Change Order will be
issued therefor.
ARTICLE 6
CONTRACT PRICE
6.1 Owner agrees to pay CRB for the cost of work as defined in Article 7 and
based on the scope of work as defined in this document. Such payment shall
be in addition to the Contractors Fee stipulated in 6.4.
6.2 The maximum cost to the Owner, including the Cost of Work and the
Contractors Fee will be established as a Guaranteed Maximum Price. This
Guaranteed Maximum Price will be established at a mutually agreeable time
before any substantial construction is commenced. Exhibit A of this
contract defines the Guaranteed Maximum Price.
6.3 For preliminary services prior to agreement of a Guaranteed Maximum Price
Owner shall reimburse CRB for all labor and materials on a cost
reimbursable basis not to exceed Three million and 00/100 Dollars
($3,000,000). The cost for preliminary services will be rolled into the
Guaranteed Maximum Price once it is established.
6.4 If the actual Cost of Work together with the Contractor's Fee is less than
the Guaranteed Maximum Price stated above, the Owner and CRB shall divide
such difference by the adjustment in the final payment, 80 percent to Owner
and 20 percent to CRB.
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6.5 In consideration of the performance of the Contract, Owner agrees to pay
CRB in current funds as compensation for its services a "Contractor's Fee"
of 2.0 percent of the "Cost of Work".
6.6 In addition to the "Contractor's Fee" the Owner will pay CRB an "Incentive
Award Fee" of up to 1.5 percent of the "Cost of Work". The "Incentive Award
Fee" shall be administered per Exhibit B of this Contract.
6.7 For changes in the work, the Contractor's Fee shall be adjusted
proportionately to the original fee.
ARTICLE 7
COST OF THE WORK
7.1 The term "Cost of Work" shall mean costs actually incurred in the proper
performance of the Work and paid or incurred by CRB Builders in connection
therewith. Such costs shall include, but not be limited to, the items set forth
below in this Article 7.
7.1.1 Cost and direct expenses for architectural and engineering services in
connection with the project.
7.1.2 Cost and direct expenses for the administration and management of the Work
performed in the office, at the Project site and on the premises of suppliers or
fabricators.
7.1.3 Wages paid for labor in the direct employ of CRB Builders who perform
field construction work, including such welfare or other benefits, if any, as
may be payable with respect thereto.
7.1.4 The proportion of reasonable transportation, traveling and hotel and
moving expenses of CRB Builders, or of its officers or employees, incurred in
discharge of duties connected with the Project.
7.1.5 Cost of all materials, supplies and equipment incorporated in the Project
or suitably stored or stockpiled in an appropriate manner and location,
including costs and transportation and storage thereof.
7.1.6 Payments by CRB Builders to construction subcontractors and for specialty
services necessary to execute and complete the Work. The specialty services
include, by way of illustration and not limitation, additional surveying and
subsurface exploration, materials testing, and special inspections required by
government agencies and insurance companies.
7.1.7 Cost, including transportation and maintenance, of all materials,
supplies, equipment, general conditions, temporary facilities, including office
trailer rental, job site utilities, and hand tools not owned by the workmen,
which are employed or consumed in the performance of the Work.
7.1.8 Rental charges of all machinery and equipment, exclusive of hand tools,
used at the site of the Work, whether rented from CRB Builders or others,
including installation, repairs and replacement, dismantling, cost of
lubrication, transportation and delivery cost thereof. Rental charges shall be
consistent with those prevailing in the area.
7.1.9 Cost of the premium for all insurance which CRB Builders is required to
procure by the Agreement or is deemed necessary by CRB Builders.
7.1.10 Sales, use, gross receipts or similar taxes related to the Project,
imposed by any Governmental authority, and for which CRB Builders is legally
responsible.
7.1.11 Permit fees, licenses, tests, royalties, damages for infringement of
patents and cost of defending suits therefor, for which CRB Builders is
responsible, and deposits lost for causes other than its negligence.
7.1.12 Losses, expenses, or damages to the extent not compensated by insurance
or otherwise (including settlement made) and the cost of corrective work.
7.1.13 Minor expenses such as long distance telephone calls, telephone service
at site, express, and similar xxxxx cash items in connection with the Project.
7.1.14 Cost of removal of all debris.
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7.1.15 Cost incurred due to an emergency affecting the safety of persons and
property.
7.1.16 Legal costs reasonably and properly resulting from prosecution of the
Project for the Owner.
7.1.17 All other direct costs, not otherwise specifically classified, incurred
in the performance of the Work.
ARTICLE 8
CHANGES IN THE PROJECT
8.1 Change Orders
8.1.1 Any work not contained in the Contract Document shall be a change and
shall be performed by CRB Builders only pursuant to a written Change Order to
this Agreement issued by Owner. Such a Change Order may increase or decrease the
Work within the general scope of this Agreement. If this Change Order causes an
increase in the Cost of the Work, or of the time required for the performance of
the Work, the Guaranteed Maximum Price (GMP) and the Project Schedule will be
adjusted accordingly. If the Change Order causes a decrease in the Cost of the
Work, the GMP shall be decreased by the amount of CRB Builders determination of
the decrease of the cost in labor, materials and equipment no longer required,
based upon the Schedule of Values furnished pursuant to Paragraph 2.1.3.
8.1.2 The proposal document may identify specific items which are not included
in the Contract Price. The performance or furnishing of any of the items by CRB
Builders shall be pursuant to Change Order issued in accordance with Paragraph
8.1.1.
8.1.3 In the event Owner requests CRB Builders to develop information necessary
for the consideration of a change in the Project, and such a change is not
adopted, Owner shall reimburse CRB Builders for the costs which it incurs in
connection with such efforts.
8.2 Concealed, Unknown or Hazardous Conditions
8.2.1 If conditions are encountered at the site which are (1) subsurface or
otherwise concealed physical conditions which differ materially from those
indicated in the Contract Documents or (2) unknown physical conditions of an
unknown nature, which differ materially from those ordinarily found to exist and
generally recognized as inherent in construction activities of the character
provided for in the Contract Documents, then notice by the observing party shall
be given promptly to the other party and, if possible, before conditions are
disturbed.
8.2.2 In the event CRB Builders encounters on the site material reasonably
believed to be asbestos or a hazardous substance which has not been rendered
harmless, CRB Builders shall immediately stop work in the area affected and
report the condition to Owner. Work in the affected area shall not thereafter be
resumed except by written agreement of the Owner and CRB Builders. CRB Builders
shall not be required to perform any work relating to asbestos or hazardous
substances without its consent.
8.3 Regulatory Changes
8.3.1 CRB Builders shall be compensated for change in the Work necessitated by
the enactment or revision of codes, laws or regulations subsequent to the date
of this Agreement.
ARTICLE 9
PAYMENTS TO CRB BUILDERS
9.1 Progress Payments
9.1.1 On or before the 10th day of each month after work has commenced, CRB
Builders shall submit to Owner's Representative an Application for Payment for
the period ending on the last day of the preceding month which shall indicate
the percentage of work completed or material stored at the site for each major
segment of work on the Schedule of Values, and the current amounts due
therefore. Owner's Representative shall have the right of inspection and
verification pursuant to the Application for Payment and shall have five (5)
working days within which to approve the Application. Owner's Representative
shall forward each approved application to Owner for payment. Representative's
failure to disapprove within five (5) days shall constitute approval. Each
Application for
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Payment shall be accompanied by a partial waiver of lien duly executed by CRB
Builders for all work, the cost of which has been paid by Owner to the date of
the most recent payment received by CRB Builders
9.1.2 Within ten (10) working days after its receipt of such Application for
Payment, Owner shall pay directly to CRB Builders as follows:
.1 Ninety percent (90%) of currently due amounts shown on the
application for each major segment of the subcontracted work until a segment is
fifty percent (50%) completed, after which time currently due amounts with
respect to each such segment shall be paid in full.
.2 One hundred percent (100%) of currently due amounts shown on
the application for CRB Builders and Xxxxx Xxxxxxxxxx Xxxxxx Consulting
Engineers professional services.
.3 When a major segment of work is one hundred percent (100%)
completed or materials one hundred percent (100%) purchased and accepted by
Owner's Representative, Owner will release the proportionate retainage with
respect to that segment, and make full payment therefor to CRB Builders.
9.1.3 If Owner disputes any items shown in the Application it will promptly make
payment for that part of the Application not in dispute. Failure to pay CRB
Builders when payment is due will constitute a breach of this contract.
9.1.3 Payments due but unpaid shall bear interest of one percent (1%) per month
(or any lesser legal limit applicable) will be charged on Application amounts
outstanding more than thirty (30) days after the Application date.
9.2 CRB Builders warrants and guarantees that title to all Work, materials and
equipment covered by an Application for Payment, whether incorporated in the
Project or not, will pass to the Owner upon receipt of such payment by CRB
Builders, free and clear of all liens, claims, security interests or
encumbrances hereinafter referred to as Liens. CRB Builders, at its own expense,
shall indemnify, defend and save harmless Owner against Liens filed on the
property of Owner by subcontractors, material-men or suppliers of CRB Builders
for amounts due them from CRB Builders for Work, the cost of which has been paid
by Owner to CRB Builders.
9.3 Final Payment
For purposes of final payment, the procedure under this Agreement will be as
follows:
9.3.1 CRB Builders shall give written notice to Owner upon Substantial
Completion of the Project, or a designated portion thereof. If Owner has not, in
fact, occupied or utilized the Project, or the designated portion thereof, the
parties, within five (5) days of receipt of such notice, shall determine on the
basis of a joint inspection that the Work is substantially complete. CRB
Builders shall then prepare a Certificate of Substantial Completion for
execution by the parties which shall establish the date of Substantial
Completion, shall state the responsibilities of Owner and CRB Builders regarding
security, maintenance, heat, utilities, and risk of casualty, and shall list the
items of Work (punch list) to be corrected or completed.
9.3.2 When the parties have mutually agreed upon the Certificate of Substantial
Completion, CRB Builders shall submit to the Owner's Representative an
Application for Payment of the unpaid balance of the Contract Price for the
Project, less an amount equal to one-hundred fifty percent (150%) of the
estimated cost of completing all remaining unfinished items of work shown on the
punch list. Within ten (10) days after receipt of the Application for Payment,
Owner shall make payment to CRB Builders. Failure of Owner to pay the amount
specified shall constitute a breach of this Agreement and CRB Builders shall
have no further obligations or responsibility to Owner under this Agreement.
9.3.3 CRB Builders shall, as soon as possible, correct or complete the items of
work noted on the punch list without additional expense to Owner. Owner's
Representative shall inspect the corrected or completed items of work within
five (5) days after notice of correction or completion of each such item of work
and if acceptable, shall issue a written notice of acceptance of such items of
work to CRB Builders. Owner shall pay monthly, from the amount retained, for the
items of work corrected or completed.
9.3.4 Following full completion of the Work and final inspection and acceptance
of the Work by the Owner's Representative, CRB Builders shall submit a final
Application for Payment for the entire unpaid balance of the Contract Price, as
noted in the final application. Upon final payment, CRB Builders will issue a
duly executed final waiver of lien.
9.4 The making of final payment shall constitute a waiver of all claims by
Owner except those arising from:
9.4.1 Unsettled liens.
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9.4.2 Defects in materials or workmanship appearing after final inspection.
9.4.3 Any breach of continuing obligation on the part of CRB Builders.
ARTICLE 10
INDEMNITY AND INSURANCE
10.1 Indemnity
10.1.1 CRB Builders shall indemnify Owner against all claims and suits by third
parties for loss of or damage to property, or personal injury, including death,
to persons, and from all judgments recovered therefor, and from all expenses for
defending such claim or suit, including court costs and attorney's fees, which
result from the negligent acts, errors or omissions of CRB Builders. CRB
Builders shall have no duty to indemnify Owner hereunder against claims arising
as a result of Owner's sole or contributing negligence. In no event shall CRB
Builders be responsible, under this paragraph or otherwise, for any indirect or
consequential damages of any kind.
10.1.2 Upon and after final completion of the Project, Owner shall indemnify CRB
Builders against all claims and suits for damages arising from personal injuries
or to property, and from all judgments recovered therefor, and from all expenses
for defending such claim or suit, including court costs and attorney's fees,
which result from the Owner's negligent use, operation or maintenance of the
facilities, equipment or materials designed or provided by CRB Builders under
this Agreement.
10.2 CRB Builders Insurance
CRB Builders shall purchase and maintain the following insurance to cover its
operations under this Agreement whether such operations be by itself or by any
Subcontractor or by anyone directly or indirectly employed by any of them, or by
anyone for whose acts any of them may be liable:
1) Workers' Compensation Insurance in full compliance with workers'
compensation laws of the states within which any part of the Work is to be
performed, together with employer's liability coverage with minimum limits
of liability in the amount of $100,000 for each occurrence.
2) Comprehensive Automobile Liability insurance covering all owned, hired and
non-owned vehicles with the following minimum limits of liability:
Combined single limit - $1,000,000 each occurrence
3) Comprehensive General Liability insurance including Independent
Contractor's coverage with the following minimum limits of liability:
Combined single limit - $1,000,000 each occurrence
$2,000,000 aggregate
Excess Liability (Umbrella) $3,000,000 each occurrence and aggregate
4) Architects/Engineers Professional Liability: $5,000,000 each claim.
$10,000,000 annual aggregate
10.3 CRB Builders shall furnish to Owner promptly following the execution of
this Agreement, certificates evidencing the maintenance of said insurance. The
certificates shall provide that ten (10) days written notice shall be given to
Owner before the insurance policies noted herein are changed or canceled.
10.4 Owner's Liability Insurance
10.4.1 The Owner shall be responsible for purchasing liability insurance to
protect the Owner against claims which may arise from operations under this
Project.
10.5 Property Insurance
10.5.1 Owner shall purchase property insurance upon the Work at the site to the
full insurable value thereof. Property insurance shall include interests of the
Owner, CRB Builders, and their respective contractors and subcontractors in the
Work. It shall insure against perils of fire and other hazards included in
standard "all risk" insurance.
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10.5.2 Before an exposure to loss may occur, the Owner shall file with CRB
Builders a copy of each policy required by this Paragraph 10.5. Each policy
shall contain a provision that the policy will not be canceled or allowed to
expire until at least thirty days' prior written notice has been given CRB
Builders.
10.5.3 The Owner and CRB Builders waive all rights against each other and the
contractors, subcontractors, agents and employees, each of the other, for
damages caused by fire or other perils to the extent covered by property
insurance obtained pursuant to this Paragraph 10.5 or other property insurance
applicable to the Work, except such rights as they may have to proceeds of such
insurance held by the Owner as trustee. The Owner or CRB Builders, as
appropriate, shall require from contractors and subcontractors by appropriate
agreements, written where legally required for validity, similar waivers each in
favor of other parties enumerated in the Paragraph 10.5. The policies shall be
endorsed to include such waivers of subrogation.
10.5.4 If the Owner finds it necessary to occupy or use a portion or portions of
the Work before Substantial Completion, such occupancy or use shall not commence
prior to a time agreed to by the Owner and CRB Builders and to which the
insurance company or companies providing property insurance have consented by
endorsement to the policy or policies.
10.6 Loss of Use Insurance
Owner shall purchase such insurance as will insure against loss of use of its
property, however caused. Owner waives all causes of action against CRB Builders
for such loss of use, including consequential damages.
ARTICLE 11
TERMINATION OR SUSPENSION OF THE AGREEMENT
11.1 Termination by Owner for Cause
If CRB Builders defaults or persistently fails or neglects to carry out the Work
in accordance with the Contract Documents or fails to perform the provisions of
this Agreement, the Owner may give written notice that the Owner intends to
terminate this Agreement. If CRB Builders fails to correct the defaults, failure
or neglect within seven (7) days after being given notice, the Owner may then
give a second written notice, and after an additional seven (7) days, the Owner
may, without prejudice to any other remedy, make good such deficiencies and may
deduct the cost thereof from the payment due CRB Builders or, at the Owner's
option, may terminate the employment of CRB Builders and take possession of the
site and of all materials, equipment, tools and construction equipment and
machinery thereon owned by CRB Builders and finish the Work by whatever method
the Owner may deem expedient. If the unpaid balance of the Contract Price
exceeds the expense of finishing the Work, the excess shall be paid to CRB
Builders, but if the expense exceeds the unpaid balance, CRB Builders shall pay
the difference to the Owner.
11.2 Termination By Owner Without Cause
In addition to termination under Article 11.1, Owner may terminate this
Agreement without cause upon ten (10) days' written notice to CRB Builders. Upon
such termination, Owner shall reimburse CRB Builders for any unpaid portions of
the Contract Price due him under Article 6 for the Work to date of termination.
In addition, Owner shall also pay to CRB Builders fair compensation, either by
purchase or rental at the election of the Owner, for any equipment retained. In
case of such termination of this Agreement, the Owner shall further assume and
become liable for obligations, commitments and unsettled claims that CRB
Builders has previously undertaken or incurred in good faith in connection with
said Work, undelivered materials or equipment on order, and any demobilization
costs, plus ten percent (10%) of such costs to cover CRB Builder's fee. CRB
Builders shall, as a condition of receiving the payments referred to in this
Article, execute and deliver all such papers and take all such steps, including
the legal assignment of his contractual rights, as the Owner may require for the
purpose of fully vesting in the Owner the rights and benefits of CRB Builders
under such obligations or commitments.
11.3 Suspension by Owner Without Cause
Owner may, without cause, order CRB Builders in writing to suspend, delay or
interrupt the Project in whole or in part for such period of time as Owner may
determine. An adjustment shall be made for increases in the costs of the
performance of this agreement, including profit, caused by suspension, delay or
interruption and adjustments shall be made to schedule.
11.4 Termination by CRB Builders
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11.4.1 If the Owner fails to make payment when due, on an application for
payment for which the Owner has approved, CRB Builders may give written notice
of its intention to terminate this Agreement. If CRB Builders fails to receive
payment within seven (7) days after receipt of such notice by the Owner, CRB
Builders may give a second written notice and, seven (7) days after receipt of
such second written notice by the Owner, may terminate this Agreement, and
recover from the Owner payment for Work executed and for proven losses sustained
upon materials, equipment, tools, and construction equipment and machinery,
including reasonable profit and applicable damages.
ARTICLE 12
MEDIATION
12.1 Claims, disputes or other matters in question between parties to this
Agreement shall be resolved by mediation or arbitration.
12.2 Any mediation conducted pursuant to this Article 12 shall be held in
accordance with the Construction Industry Mediation Rules of the American
Arbitration Association currently in effect, unless the parties mutually agree
otherwise. Request for mediation shall be filed in writing with the other party
to this Agreement and with the American Arbitration Association. Any demand for
mediation shall be made within a reasonable time after the claim dispute or
other matter in question has arisen. In no event shall the request for mediation
be made after the date when institute of legal or equable proceeding based upon
such claims, dispute or other matter in question would be barred by the
applicable statue of limitations.
12.3 Any claim, dispute or other matter in question not resolved by mediation
shall be decided by arbitration.
ARTICLE 13
ARBITRATION
13.1 Subject to Mediation, and failing to resolve a dispute per Article 12, all
claims, counterclaims, disputes and other matters in question between the
parties to this Agreement arising out of or relating to this Agreement shall be
decided by arbitration in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association then in effect unless the parties
agree otherwise. The arbitrators will not have jurisdiction to consider any
claim for punitive damages. This provision shall be specifically enforceable in
any court of competent jurisdiction.
13.2 Notice of demand for arbitration shall be filed in writing with the other
party to this Agreement and with the American Arbitration Association. The
demand shall be made within a reasonable time after the claim, dispute or other
matter in question has risen. In no event shall the demand for arbitration be
made after the date when the applicable statute of limitations would bar
institution of a legal or equitable proceeding based on such claim, dispute or
other matter in question.
13.3 No arbitration arising out of or related to this Agreement shall include,
by joinder, consolidation or other manner, any person not a party to this
Agreement, except for CRB Builders' subcontractors who may be joined at CRB
Builders' sole election.
13.4 The award rendered by arbitrators shall be final, and judgment may be
entered upon it in accordance with applicable law in any court having
jurisdiction.
13.5 Unless otherwise agreed in writing, CRB Builders shall carry on the Work
and maintain its progress during any arbitration proceedings, and the Owner
shall continue to make payments to CRB Builders in accordance with the Contract
Documents.
13.6 This Article 13 shall survive completion or termination of this Agreement.
ARTICLE 14
MISCELLANEOUS
14.1 Successor and Assigns
14.1.1 This Agreement shall be binding on the successors, assigns, and legal
representatives of the Owner or CRB Builders. Neither party shall assign, sublet
or transfer an interest in the Agreement without a written consent of the other.
14.2 Use of Documents
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14.2.1 The drawings, specifications and other documents furnished by CRB
Builders are instruments of service and shall not be used by the Owner on other
projects, for additions to this Project or, unless CRB Builders is in default
under this Agreement, for completion of this Project by others, except by
written agreement relating to use, liability and compensation.
14.2.2 Submission or distribution of documents to meet official regulatory
requirements or for other purposes in connection with the Project is not to be
construed as publication in derogation of CRB Builders' common law copyrights or
other reserved rights.
14.3 Governing Law
14.3.1 This Agreement shall be governed by the law in effect at the location of
this Project.
OWNER: Serologicals Corporation
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Title: Vice President and Chief Financial Officer
CRB BUILDERS
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------
Title: President CRB Builders
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EXHIBIT A
1. The maximum cost to the Owner, including Preliminary Services, Cost of Work
and the Contractors Fee is a Guaranteed Maximum Price of Twenty five million
three hundred thirty two thousand eight hundred fifty two and 00/100 Dollars
($25,332,852.00). Such Guaranteed Maximum Price shall be increased or
decreased for Changes in the Work as described in Article 8 of this
agreement. Adds or Deducts to the GMP include:
Adds:
a. Cost of design services using Hourly Rate Schedule.
b. Cost of Work plus 10% for field supervision, 15% for home
office costs and 3% profit.
Deducts:
a. Cost of design services using Hourly Rate Schedule.
b. Cost of Work plus 1.5% profit.
2. The following Scope of Work and Design Documents form the basis for the
Guaranteed Maximum Price.
a. Estimate - Titled: March 2003 GMP Estimate, Run Date: March
7, 2003
b. Equipment List - March 3, 2003
c. Drawings - Building Civil, Architectural, Structural,
Mechanical, Plumbing, Fire Protection, and Electrical
included in drawing sets 1 of 3, 2 of 3, and 3 of 3. Process\
drawings completed through March 7, 2003 and all concepts
through March 7, 2003.
d. Specifications - March 3, 2003
3. Clarifications:
a. All subcontractors will provide labor and material bonds and
insurance as identified in CRB Builders subcontract.
b. State sales tax exemption on all building and process
equipment and materials.
c. No telephone, voice and data design or installation included
except CRB Builders has included wall boxes and conduit from
wall box to closest soft ceiling area.
d. Validation/Commissioning and Spare parts are listed as
allowances.
e. No bench top (loose) laboratory equipment included.
f. No furnishings (loose) are included except refrigerator.
g. No individual door or room signage is included. h. No PVC
covering of interior pipe straight runs is included.
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EXHIBIT B
An Incentive Fee of 1.5% of the Cost of Work will be paid to CRB based upon
performance ratings assessed by the Owner on CRB's performance during the
project. Performance criteria and objectives have been established as the basis
for grading CRB. The Owner will grade CRB's performance against these items
every month.
Scores will be applied to each criteria monthly within a category on a scale of
0 - 100. A sum of the criteria scores within each category will be added
together and an average score calculated for each of the six (6) weighted
categories.
The fee will be calculated as the average of the monthly total value over the
life of the project, times the incentive fee, based on 1.5% of the actual "Total
Direct Construction Cost".
Scores will be put on a report card (see attached report card to this Exhibit B)
and reviewed with CRB in a monthly meeting. Each score will be accompanied by
Comments stating how CRB can improve performance for the next period.
Scores will be averaged at the end of the project and the resulting percentage
applied to the Incentive Fee and paid to CRB.
The weighted values by category will be:
Schedule - .20
Design - .15
Budget - .25
Quality - .0
Xxxxxxxxxxxxx - .00
Xxxxxxxxxx - .00
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