EXHIBIT 10.22
FIXED PRICE CONTRACT
CONTRACTOR: Dallas Security Systems, Inc. CONTRACT DATE: December 10,2003
PROJECT: Advanced Neuromodulation Systems Building Access Control System
CONTRACT TIME: All Work must be finally complete on or before _______________
CONTRACT SUM: $ 127,560.28
PAYMENT WITHIN 30 calendar days after Final Completion
This Fixed Price Contract ("Contract") is executed to be effective on the date
set forth above ("Contract Date"). The parties to the Contract are:
Advanced Neuromodulation Systems, Inc. ("Owner")
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Owner's Representative: Xxxxx Xxxxxx
Telephone: (000) 000-0000 FAX: (000) 000-0000
E-mail address: x.xxxxxx@xxx-xxxxxxx.xxx
Dallas Security Systems, Inc. ("Contractor")
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Contractor's Representative: Xxx Xxxx
Telephone: (000) 000-0000 x000 FAX: (000) 000-0000
E-mail address: xxxxx@xxxxxxxxxxxxxx.xxx
1. Contractor Obligations. In connection with the project described above
("Project"), Contractor shall furnish all materials, supplies, equipment,
machinery, fixtures, tools, fees, approvals, permits, governmental fees,
licenses, inspections, insurance, labor, and supervision necessary to perform
the work ("Work") described on Exhibit A. Contractor represents and warrants
that it is technically, financially, and legally ready, willing, and able to
perform the Work hereunder and that it is familiar with and knowledgeable about
the applicable laws and regulations, and government agency policy documents to
the extent necessary to carry out its duties in a professional, complete, and
compliant manner. Contractor further represents and warrants that Work performed
by or delivered through Contractor shall be in accordance with the generally
accepted standards of the profession at the time of performance and shall
conform to the provisions of this Contract. Contractor shall replace any part of
the Work that fails to comply with this Contract if such failure appears before
Final Completion (as defined in Section 3 below). Additionally, Contractor shall
remedy or replace any defects in the Work that appear within one year after
Final Completion. All subcontractors must be approved by Owner.
1.1 Independent Contractor. Contractor is an independent
contractor and not an employee or agent of the Owner. Accordingly,
neither Contractor nor any of Contractor's representatives shall hold
themselves out as, or claim to be acting in the capacity of, an
employee, agent, partner or joint venturer of Owner.
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1.2 Changes. From time to time, Owner may authorize changes in the
Work, issue additional instructions, require additional Work or direct
the omission of Work previously ordered. Only those changes in the Work
that are approved on a written change order, shall be binding on Owner.
1.3 Field Work - Contractor warrants that (a) field-related Work,
labor and materials delivered by or through Contractor hereunder shall
be performed, installed, completed and constructed in accordance with
this Contract and all other documents provided to Contractor by Owner
or Owner's engineer and performed in a safe, good and workmanlike
manner, free from defects, and that any equipment utilized in
connection with performance hereunder shall be in proper working order,
and (b) any materials (provided by or through Contractor) incorporated
in the Work shall be properly cleaned and decontaminated, and of
generally accepted quality as required for the specific intended
purpose (unless otherwise expressly consented to in advance and in
writing by Owner).
1.4 Compliance with Laws - Contractor warrants for itself and its
officers, directors, employees, agents, subcontractors, and suppliers,
at any tier, and their respective agents and employees, compliance with
all applicable Federal, State, and local laws and regulations, as well
as, but not limited to, permits and licenses concerning health, safety,
and the protection of the environment and those concerning Equal
Employment Discrimination Resulting from Age, and Utilization of
Disadvantaged and Minority Business Enterprises (including, without
limitation, the law commonly known as the Americans With Disabilities
Act of 1990 and the Texas Accessibility Standards of the Architectural
Barriers Act (Art. 9102, Texas Civil Statutes), and the regulations
related thereto, as the foregoing may be amended from time to time).
Without limiting the foregoing, Contractor shall also obtain all
permits required to perform the Work in accordance with all laws and
regulations.
1.5 Patents - Contractor warrants that any Work furnished by or
through Contractor shall be free of any claim of patent infringement.
1.6 Warranty. Contractor warrants that, for a period of one year
from the date of substantial completion (the "Warranty Period"),
Contractor equipment installed hereunder and Work (i) shall be free
from defects in material, manufacture, and workmanship and (ii) shall
have the capacities and ratings set forth in Contractor's catalogs and
bulletins. Substantial completion shall be the date that the Work is
sufficiently complete so that Customer can utilize the Work for its
intended use. If a defect is discovered within the Warranty Period,
Contractor will correct the defect or furnish replacement equipment
(or, at its option, parts therefor) and labor associated with the
replacement of parts or equipment not conforming to this warranty.
Liability shall be limited to Contractor's cost to correct and replace
the defective Work and equipment. Contractor's warranties expressly
exclude any remedy for damage or defect caused by abuse, modifications
or repairs not performed by Contractor, improper operation, or normal
wear and tear under normal usage.
2. Contract Sum. Subject to the conditions set forth in this Contract, as
sole consideration for the proper and complete performance of the Work, Owner
agrees to pay Contractor the amounts set forth above and listed on Exhibit A,
("Contract Sum"). Contractor may request interim payments of the Contract Sum as
described in Section 4 below. Owner agrees to pay the Contract Sum (or the
unpaid
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balance of the Contract Sum if Owner has made any interim payments) within
30-days following Final Completion.
3. Contract Time. Unless otherwise instructed by Owner, Contractor shall
begin performance of the Work within three calendar days after the Contract
Date, and shall thereafter diligently proceed with and finally complete the Work
such that the Work is finally complete no later than April 15, 2004 (the
"Contract Time"). The Work shall be considered finally complete ("Final
Completion") when the Owner determines that all of the Work described on Exhibit
A, and any Work required by change order, has been fully (as opposed to
substantially) completed, including all punch list items, in accordance with
this Contract. If, after the Work has begun, any unexpected conditions are
encountered that will delay completion of the Work and which conditions cannot
be mitigated through the reasonable efforts of Contractor, Contractor shall give
Owner immediate written notice of such conditions, and if Owner approves same as
a permissible delay (which approval shall not be unreasonably withheld)
Contractor's sole and exclusive remedy shall be an equitable adjustment in the
Contract Time to the extent approved by Owner (unless such conditions are the
result of Owner's intentional and unjustifiable interference with the Work) but
there shall be no adjustment in the Contract Sum.
4. Payment Schedule. Contractor shall submit an application for payment in
the form set forth in Exhibit B to Owner by the 30th day of the month for Work
performed through the 25th day of the current month. Subject to terms of this
Contract, Contractor shall receive payment on or about the 25th day of the
following month. Included with the submission of each Application and
Certificate for Payment, beginning with the second request for payment,
Contractor shall furnish to Owner a Contractor's "Partial Waiver of Liens" in
the form set forth in Exhibit C and a certified statement accounting for the
disbursement of funds received from Owner. Such statement shall itemize all
disbursements to subcontractors and vendors. As a condition precedent to Owner's
obligation to make any payment to Contractor, Owner will require that a Partial
Waiver of Liens or a "Final Waiver of Liens" in the form set forth in Exhibit D,
whichever is appropriate to the circumstances, be executed by Contractor and any
subcontractors. In addition, if Owner has reason to believe that Contractor is
not paying (or may not be able to pay) any of its subcontractors, Owner reserves
the right to make payments jointly to Contractor and such subcontractors to the
extent necessary to pay fully such subcontractors. Notwithstanding the
foregoing, however, Owner shall not be obligated to make any payments to
Contractor for Work which is defective or which is not performed in accordance
with this Contract. Owner further reserves the right to retain 10% of the
Contract Sum (and 10% of any interim payments) until 30-days following Final
Completion. Pending resolution of any dispute arising under this Contract (other
than a termination hereof), Contractor may not cease working and shall proceed
diligently with the performance of this Contract, and Owner shall continue to
make payments that are not in dispute in accordance with this Contract.
5. Insurance. Contractor shall satisfy the insurance obligations described
on Exhibit D. The cost of this insurance shall be at no cost to Owner. Both
parties agree to a mutual waiver of subrogation but only to the extent of the
individual party's negligence.
6. Contractor's Remedy. Contractor shall give written notice to Owner of
any alleged breach by Owner, and Owner shall have a reasonable time within which
to cure any alleged breach. If Owner is in breach of this Contract, Contractor's
exclusive remedies shall be (a) a reasonable extension of the Contract Time and
(b) a reasonable increase in the Contract Sum, which increase shall be limited
to the actual, out-of-pocket costs and expenses incurred by Contractor as a
direct result of Owner's breach.
7. Indemnification. Contractor and Owner shall indemnify and hold each
other harmless from any and all claims, actions, costs, expenses, damages and
liabilities, including reasonable attorneys' fees, resulting from death or
bodily injury or damage to real or personal property, to the extent caused by
the
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negligence or misconduct of their respective employees or other authorized
agents in connection with their activities within the scope of this Contract.
Neither party shall indemnify the other against claims, damages, expenses or
liabilities to the extent attributable to the negligence or misconduct of the
other party. If the parties are both at fault, the obligation to indemnify shall
be proportional to their relative fault. The duty to indemnify will continue in
full force and effect, notwithstanding the expiration or early termination
hereof, with respect to any claims based on facts or conditions that occurred
prior to expiration or termination.
8. Safety. Contractor and its employees shall at all times comply with any
and all safety programs in effect on the Project.
9. Hazardous Substances.
9.1 "Hazardous Substances" means any substance defined in or
included under or regulated by any Federal, State, or local laws,
rules, ordinances or regulations pertaining to environmental
regulation, contamination, clean-up or disclosure ("Environmental
Laws"). Contractor shall not transport to, use, generate, dispose of,
or install any Hazardous Substances on any property on which the Work
is performed in violation of Environmental Laws. In performing the
Work, Contractor shall not cause or permit any release of Hazardous
Substances into, or contamination of, the environment, including the
soil, the atmosphere, any water course or ground water in violation of
Environmental Laws. If Contractor encounters any Hazardous Substances,
Contractor shall immediately notify Owner and shall immediately stop
Work until further written authorization from Owner. Contractor shall
be required to resume performance of the Work in the affected area only
in the absence of Hazardous Materials or when the affected area has
been rendered harmless.
9.2 Owner warrants and represents that it is not aware of any
Hazardous Materials on the Work site that will affect Contractor's Work
and Owner has disclosed to Contractor the existence and location of any
Hazardous Materials in all areas within which Contractor will be
performing the Work. As between Owner and Contractor, Owner shall be
responsible for any claims arising out of or relating to any Hazardous
Materials on or about the Work site, not brought onto the Work site by
Contractor.
10. Assignment. Contractor shall not assign this Contract (or any of its
rights, duties or remedies under this Contract) without the prior written
consent of Owner. Owner may, however, assign this Contract (and any of its
rights, duties or remedies under this Contract) to any person or entity without
notice to Contractor.
11. Termination. Owner reserves the right to terminate this Contract at any
time for any reason in Owner's sole and absolute discretion upon not less than
48 hours' written notice to Contractor. Upon any such termination, Contractor
shall immediately discontinue the Work and remove its equipment and employees
from the Project. In the event of such a termination, Contractor, as its sole
and exclusive remedy, shall be entitled to recover payment for all Work
satisfactorily completed through the date of termination.
12. Entire Agreement. This Contract, together with all exhibits and
referenced documents, constitutes the entire agreement between the parties
regarding the performance of the Work and supersedes all prior understandings
and negotiations (whether written or oral). All exhibits referenced in this
Contract are attached hereto and incorporated herein by reference. This Contract
can only be amended in writing
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signed by both parties. When this Contract requires a matter to be subject to
the consent or approval of Owner, such approval or consent must be in writing
and may be granted or withheld at Owner's option (unless expressly provided
otherwise herein). All unperformed obligations of Contractor shall survive the
termination of this Contract. This Contract shall be governed by the laws of the
State of Texas. The invalidity or unenforceability of any part of this Contract
shall not invalidate or affect the remainder, which shall continue to govern the
relative rights and duties of the parties as though the invalid or unenforceable
part were not a part hereof.
13. Notices. All notices given under this Contract must be in writing and
must be given to the parties at the addresses set forth above (or at such other
address as the parties may specify by giving written notice to the other party
in accordance with this Section). Notices given by mail shall be deemed
delivered three business days after deposited in the U. S. Mail, Registered or
Certified Mail, Return Receipt Requested. Notices given by any other means shall
be deemed delivered when acknowledged by the party receiving notice.
14. Contract Price and Taxes. Contractor shall be responsible for all
applicable sales, consumer, use and similar taxes. All taxes have been included
in the Contract Price as shown in the attached Exhibit A.
15. Access. Contractor and its subcontractors shall be provided access to
the Project site during regular business hours, or such other hours as may be
requested by Contractor and acceptable to the Project site's owner or tenant for
the performance of the Work, including sufficient areas for parking of
Contractor's and its subcontractors' vehicles, staging, mobilization, and
storage. Contractor's access to correct any emergency condition shall not be
restricted.
15.1. Access to Certain Areas. Contractor and its subcontractors
shall be provided access to the wire chases and above-ceiling areas,
when necessary, during regular business hours, or such other hours as
may be requested by Contractor and acceptable to Owner for the
performance of the Work.
16. Utilities. Owner shall provide without charge to Contractor all water,
heat, and utilities, including all conduit and electrical "stub-ups" (unless
expressly provided otherwise herein), required for performance of the Work.
17. Other Owner Obligations. Owner shall provide for any "saw-cutting"
and/or penetrations not otherwise specified for on Exhibit A.
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This Contract is executed to be effective as of the Contract Date set forth
above.
OWNER:
ADVANCED NEUROMODULATION SYSTEMS, INC.
_____________________________________________________
By: /s/ F. Xxxxxx Xxxxxxx III
____________________________________________
Name: F. Xxxxxx Xxxxxxx III
Title: CFO
CONTRACTOR:
DALLAS SECURITY SYSTEMS, INC.
_____________________________________________________
By: /s/ Xxx Xxxxxx
____________________________________________
Name: Xxx Xxxxxx
Title: V.P. Sales
ATTACHMENTS:
Exhibit A -- Description of the Work and Contract Sum
Exhibit B -- Application and Certificate for Payment
Exhibit C -- Lien Waivers
Exhibit D -- Insurance Requirements
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DESCRIPTION OF THE WORK AND CONTRACT SUM
See attached "Schedule of Equipment and Labor," which is fully incorporated
herein and made a part hereof by reference. Provided, however, the provision on
the last page of the schedule, page 37 of 37 entitled "ITEMS NOT NORMALLY
INCLUDED IN SCOPE OF WORK" and all items listed thereunder are hereby expressly
deleted and superceded by the terms of this Contract.
EXHIBIT A - PAGE 1
APPLICATION AND CERTIFICATE FOR PAYMENT
FIXED PRICE CONTRACT
Contractor: Dallas Security Systems, Inc. Contract Date: __________________
Project: Advanced Neuromodulation Systems Building Access Control System
Date of Application _________________________ Application No. _____________
TO: _________________ ("Owner")
1. ORIGINAL CONTRACT SUM..................................................................... $_______________
2. TOTAL CHANGE ORDERS....................................................................... $_______________
3. CONTRACT SUM TO DATE (Line 1 + 2)......................................................... $_______________
4. TOTAL COMPLETED & STORED TO DATE.......................................................... $_______________
5. RETAINAGE:
a. _________ % of Completed Work.................................................. $_______________
b. _________ % of Stored Material................................................. $_______________
Total Retainage.................................................................. $_______________
6. TOTAL EARNED LESS RETAINAGE............................................................... $_______________
(Line 4 less Line 5 Total)
7. LESS PREVIOUS PAYMENTS.................................................................... $_______________
8. CURRENT PAYMENT DUE....................................................................... $_______________
9. BALANCE TO FINISH, PLUS RETAINAGE......................................................... $_______________
(Line 3 less Line 6)
The undersigned Contractor represents that, to the best of Contractor's
knowledge, information, and belief, the Work covered by this application has
been completed in strict accordance with the above-referenced Contract, that all
amounts have been paid by Contractor for Work for which previous payments were
received from Owner, and that the current payment requested herein represents a
just estimate of reimbursement to Contractor. Contractor further represents that
there are no known mechanic's liens or materialmen's liens outstanding at the
date of this application, that all due and payable bills with respect to the
Work have been paid to date or are included in the amount requested in this
application, that, except for such bills not paid but so included, there is no
known basis for the filing of any mechanic's liens or
Exhibit B - Page 1
materialmen's liens on the Work or the Project and that effective waivers and
releases of liens have been obtained from all subcontractors.
This Application and Certificate for Payment is executed this _________________
day of __________________ , 20 _______ .
CONTRACTOR:
By: _____________________________
Name: _____________________________
Title: _____________________________
THE STATE OF TEXAS )
) ss.
THE COUNTY OF _______ )
This instrument was acknowledged before me this __________ day of ____________ ,
20 ________ , by _____________ , ______________, of __________________ , a
____________________ , on behalf of said ___________ .
_______________________________________________
Notary Public in and for the State of Texas
Exhibit B - Page 2
PARTIAL WAIVER OF LIENS
FIXED PRICE CONTRACT
Contractor: Dallas Security Systems, Inc. Contract Date: __________________
Project: Advanced Neuromodulation Systems Building Access Control System
THAT the undersigned Contractor, in consideration of payment made to
the undersigned of all sums due the undersigned for labor and/or materials
supplied prior to, through and including the date of this waiver and release,
and in connection with the Project, which Project is owned or leased by Advanced
Neuromodulation Systems, Inc. or its affiliates ("Owner"), does hereby fully and
finally waive and release any and all liens, claims, actions, and demands, and
all rights to same, against Owner, the Project, the real property upon which the
Project is located, and any and all other property owned by Owner or its
affiliates, in connection with labor and/or services supplied by the undersigned
to the Project prior to and through the date hereof; and
THAT the undersigned Contractor does hereby acknowledge and represent
that:
1. Through the date hereof, the undersigned Contractor has
received total payments in the amount of $ __________for labor
and/or materials supplied to or for the Project; and
2. The undersigned Contractor hereby acknowledges receipt of
payment in full of all sums agreed and required to be paid to
the undersigned in connection with the Project for all labor
and/or materials supplied by the undersigned to or for the
Project prior to, through, and including the date hereof, it
being understood that retainage in the amount of $ ___________
is being withheld pursuant to the terms of the Contract.
This instrument has been executed as of the ____________ day of
________, 20 _____ . CONTRACTOR:
CONTRACTOR:
By: _____________________________
Name: _____________________________
Title: _____________________________
THE STATE OF TEXAS )
) ss.
THE COUNTY OF _______ )
This instrument was acknowledged before me this __________ day of ____________ ,
20 ________ , by _____________ , , of __________________ , a
____________________ , on behalf of said ___________ .
_______________________________________________
Notary Public in and for the State of Texas
Exhibit C - Page 1
FINAL WAIVER OF LIENS
FIXED PRICE CONTRACT
Contractor: Dallas Security Systems, Inc. Contract Date: ______________________
Project: Advanced Neuromodulation Systems Building Access Control System
THAT the undersigned Contractor, in consideration of payment made to
the undersigned of all sums due the undersigned for labor and/or materials
supplied prior to, through, and including the date of this waiver and release,
and in connection with the Project, which Project is owned or leased by Advanced
Neuromodulation Systems, Inc. or its affiliates ("Owner"), does hereby fully and
finally waive and release any and all liens, claims, actions, and demands, and
all rights to same, against Owner, the Project, the real property upon which the
Project is located, and any and all other property owned by Owner or its
affiliates, in connection with labor and/or services supplied by the undersigned
to the Project prior to and through the date hereof; and
THAT the undersigned Contractor does hereby acknowledge and represent
that:
1. Through the date hereof, the undersigned Contractor has
received total payments in the amount of $ _____________
for labor and/or materials supplied to or for the Project; and
2. The undersigned Contractor hereby acknowledges receipt of
payment in full of all sums agreed and required to be paid to
the undersigned in connection with the Project for all labor
and/or materials supplied by the undersigned to or for the
Project prior to, through, and including the date hereof.
This instrument has been executed as of the ____________ day of
________, 20 _____ .
CONTRACTOR:
By: _____________________________
Name: _____________________________
Title: _____________________________
THE STATE OF TEXAS )
) ss.
THE COUNTY OF _______ )
This instrument was acknowledged before me this __________ day of ____________ ,
20 ________ , by _____________ , _____________, of __________________ , a
____________________ , on behalf of said ___________ .
_______________________________________________
Notary Public in and for the State of Texas
Exhibit C - Page 2
INSURANCE REQUIREMENTS
Contractor shall not commence the Work under this Contract until it has obtained
insurance in compliance to the following requirements:
- COVERAGE AND LIMITS
Contractor will purchase and maintain (with companies licensed to do business in
the State of Texas and having rates of Best's Insurance Guide A/VII, or better)
insurance coverages and amounts as set forth below:
TYPE AMOUNT OTHER REQUIREMENTS
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1. WORKERS' COMPENSATION Texas Statutory Limits, if state 1. Waiver of subrogation in favor of Insured
AND EMPLOYER'S LIABILITY has no statutory limits then: Parties (hereafter defined).
$1,000,000 each accident
$1,000,000 policy limit bodily
injury by disease
$1,000,000 each employee, bodily
injury by disease
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2. COMMERCIAL GENERAL $1,000,000 per occurrence 1. ISO form CG 0001 0196, or equivalent
LIABILITY (OCCURRENCE BASIS) $2,000,000 general aggregate 2. Insured Parties will be named as "additional
$2,000,000 product-completed insureds" on ISO Form CG 2026 1185, or equivalent
operations aggregate limit. 3. Waiver of subrogation in favor of Insured
$50,000 fire legal liability Parties
$5,000 medical expense limit
-----------------------------------------------------------------------------------------------------------------------
- EVIDENCE OF INSURANCE REQUIRED
Contractor shall not commence any Work of any kind under this Contract until all
the insurance requirements contained in this Exhibit D have been provided and
complied with, and until a Certificate of Insurance has been provided to Owner.
Evidence to be delivered to Owner prior to commencing operations at the Site and
at least 5 days prior to the expiration of current policies. THE "XXXXX FORM 25
CERTIFICATES OF LIABILITY INSURANCE" FOR LIABILITY COVERAGES, "XXXXX FORM 27
EVIDENCE OF PROPERTY INSURANCE" FOR PROPERTY COVERAGES OR ANOTHER PRE-APPROVED
SUBSTITUTE IS THE REQUIRED FORM IN ALL CASES WHERE REFERENCE IS MADE HEREIN TO A
"CERTIFICATE OF INSURANCE". The Certificate of Insurance must specify the
additional insured status and waivers of subrogation, state the amounts of all
deductibles and self-insured retentions, set forth notice requirements for
cancellation, material change, or non-renewal of insurance and be accompanied by
copies of all required endorsements.
- INSURANCE REQUIRED FOR CONTRACT TIME
Any and all insurance required hereunder shall be maintained during the entire
Contract Time, including any extensions thereto.
- ADDITIONAL INSURED STATUS
Each insurance policy described herein permitting an additional insured
endorsement shall be endorsed, using additional insured endorsement CG 2026 (or
broader endorsement) to name as additional insureds Owner and each of its
partners, officers, directors, members, owners, agents, and employees
(collectively, the "INSURED PARTIES").
- PRIMARY COVERAGE
The coverage afforded the additional insureds shall be primary insurance. If any
additional insureds have other insurance applicable to the loss, such other
insurance shall be on an excess or contingent basis and shall apply only to such
additional insureds.
