EXHIBIT 10.22
DESIGN AND CONSTRUCTION CONTRACT
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THIS DESIGN AND CONSTRUCTION CONTRACT ("Agreement") is made and entered
into this 30th day of March, 1998, by and between E-Tek Dynamics, Inc., a
California corporation, ("Owner") and Xxxxxxx and Xxxxxxx, Inc., a California
corporation ("Contractor").
1. Contractor agrees, for the consideration and under the terms and
conditions set forth herein, to furnish and transport all necessary design
services, labor, tools, materials, supplies, plans, drawings, blueprints,
specifications, permits and inspections required to perform and completely
finish in a workmanlike manner to the satisfaction and approval of Owner, free
of any and all liens and claims of laborers, artisans, materialmen, suppliers
and subcontractors (collectively, "Subcontractors"), and strictly in conformity
in all respects with all applicable laws, ordinances, rules and regulations, the
work as described in Exhibit A attached hereto (the "Work") at those premises
described as 1865, 1875 and 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx (the
"Premises"). The Work shall be done and furnished in accordance with the
drawings, descriptions, plans, blueprints and specifications described on
Exhibit A, all of which (including any amendments thereto) shall be subject to
Owner's approval. Contractor shall retain its ownership rights in the Exhibit A
items; however, Owner is granted a perpetual nonexclusive license to use such
Exhibit A items for any purpose, other than to duplicate the Work for another
project. Contractor shall provide Owner upon request with one full copy set of
all Exhibit A items.
2. a. Owner shall be free at all times during the term of this Agreement to
make any additions to, alterations of, deviations from, or deletions of, the
Work ("Changes"), and any such Change(s) shall in no way affect or make void
this Agreement. No Change shall be authorized until Owner signs a Change Order
Form supplied by Contractor. Such form shall specify the proposed Change, its
dollar amount, and any modifications of scheduled completion dates.
b. Any Change(s) that decrease Contractor's (or its agents') cost of the
Work shall be evaluated on a lump-sum basis and such cost shall be deducted from
the Price (as defined in Paragraph 4, below).
c. Any Change(s) that increase Contractor's (or its agents') cost of the
Work shall be evaluated, at Owner's option, on either (i) a lump-sum basis, the
amount thereof to be agreed upon in writing before execution of such Change(s),
or (ii) on a cost-plus basis (i.e., on the basis of Actual Cost, as defined
below, plus 3.304% of the Actual Cost as a Contractors fee (2.6%) and for
liability insurance (0.704%), plus 2% of the design fee (as defined in Exhibit
C) for design/build insurance). Any such proposed Change(s) shall be subject to
Contractor's consent, which shall not be unreasonably withheld. The amount
thereof shall be added to the Price.
3. Contractor shall commence the Work on April 14, 1998, shall perform the
Work as promptly as possible pursuant to the schedule set forth in Exhibit B
attached hereto, and shall complete the entire Work, with the Premises fully
ready for intended use, by no later than November 2, 1998.
4. a. Owner agrees, in full consideration of the performance of this
Agreement by Contractor, to pay Contractor in accordance with the rates, fees,
Guaranteed Maximum Amounts, and other conditions on Exhibit C attached hereto,
subject to additions, deductions and offsets allowed by this Agreement (the
"Price"), in the following manner:
(i) By the tenth day of each calendar month during the term of this
Agreement, Contractor shall present Owner with a Requisition for Payment
("RFP"), which shall include a schedule of values for all work provided by
or through Contractor, and accepted by Owner, during the preceding month,
along with all supporting information, including paid bills, statements of
account, payroll records and, if requested by Owner, a release of liens
from the Owner and all Subcontractors. Contractor shall also include with
each RFP a Project Cost Status Report. This report and the RFP shall be in
forms approved by Owner.
(ii) Within ten days of receiving and approving the RFP, Owner shall
pay to Contractor ninety percent of the value of the services and material
provided and furnished during such preceding month.
(iii) Any balance of the Price shall be paid to Contractor within
thirty days of Contractor's completion, and Owner's acceptance, of the
Work.
b. For purposes of this Agreement, "Actual Cost" shall mean all verifiable
expenditures for materials, supplies and labor furnished by or through
Contractor, but shall not include any allowance for overhead or general
expenses, such as office expense, cost of equipment, insurance premiums, or
general supervision. Owner shall have reasonable audit rights to inspect and
copy all books and records in Contractor's (and/or its agents') custody,
possession or control to evaluate and verify, among other things, the cost of
the Work. Any such audits shall be at Owner's expense, however, in the event an
audit reveals that the cost of work claimed by Contractor is more than three
percent above Actual Cost, then Contractor shall pay the audit costs.
c. As a condition precedent to Contractor's right to receive any payment
under this Agreement, Contractor shall discharge and release the Premises from
any and all claims or liens, in a form satisfactory to Owner, that may have
accrued in connection with this Agreement; or, at Owner's option, Owner shall
discharge any and all such liens and claims and deduct all costs thereof from
the Price.
d. Owner reserves the right to make payments to Contractor in the form of
checks payable jointly to Contractor and to any of its Subcontractors that might
have the right to assert a claim or lien against the Premises.
5. a. At Owner's option, all Work (including materials), or any part
thereof, that is not reasonably satisfactory to Owner, and/or not done/furnished
in accordance with Exhibit A, shall either be (i) immediately taken down,
removed and replaced by Contractor with work and/or material of a quality
approved by Owner, without any additional compensation to Contractor, or, (ii)
removed by or through Owner, and corrected or replaced as Owner may elect, and
Contractor shall be obligated to pay to Owner all expenses so incurred either,
at Owner's option, by direct payment to Owner or by Owner deducting such
expenses from the Price.
b. Owner shall exercise reasonable care to discover any labor or materials
that are not satisfactory to it, or that are not in accordance with Exhibit A,
and to promptly report the same to Contractor. Notwithstanding the foregoing, in
no event shall Contractor be relieved of responsibility for any consequence of
any unsatisfactory Work or any negligence and/or misconduct of Contractor or its
agents.
6. Except where covered by any builders' all-risk insurance, Owner will not
in any manner be answerable or accountable for any loss or damage to the Work
(including materials), or any part thereof, before its full completion by
Contractor and acceptance by Owner. Contractor shall at all times keep the job
site and surrounding area clean, safe and orderly, and shall comply with all
health and safety laws, rules and regulations. At the completion of the Work,
the job site will be left by Contractor in a broom-clean condition.
7. Contractor warrants that the Work will be complete, free from faulty
materials and workmanship, and fit for the intended purpose. Upon receiving
notification from Owner, Contractor shall, at Owner's option and without cost to
Owner, promptly remedy, repair or replace to Owner's satisfaction any and all
defects, damages or imperfections appearing in the Work within a period of
twelve months after Contractor's completion, and Owner's acceptance, of the
Work. Should Contractor fail or refuse to honor its warranty, then Owner shall
have the option, by itself or through third parties, to remedy, repair or
replace any defects, damages or imperfections, and Contractor shall be
responsible for the costs and expenses associated therewith.
8. Contractor shall indemnify, defend and save harmless Owner and its
affiliates and agents, and each of them, from and against (i) any and all
claims, damages, expenses and liabilities relating to, among other things,
alleged or actual injury to or death of any persons (including employees and
agents of Contractor and/or Subcontractor(s) and employees, agents, tenants and
invitees of Owner), and/or alleged or actual damage to or destruction of
property, and/or disruption of business, arising out of or relating to the Work,
and (ii) all penalties and fines imposed on account of any violations of any
applicable laws, rules or regulations, and all resulting damages, relating to
this Agreement. Notwithstanding the foregoing, Contractor shall not be liable
for damages directly caused by the presence on the job site of pollutants,
gaseous emissions, asbestos, or hazardous and/or toxic substances, whether
subsurface or otherwise, unless caused by the negligence, omission or misconduct
of Contractor.
9. If Contractor at any time during the progress of the Work refuses or
neglects to supply sufficient services, materials and/or labor to continue with
the Work for more than three days after having been notified in writing by Owner
to furnish them, Owner shall have the option to furnish and provide such
services, materials and labor as are necessary to finish the Work, and the
expense thereof shall be deducted from the Price. If such expense exceeds the
unpaid amount owing to Contractor, then Contractor shall pay to Owner the
difference.
10. Contractor hereby declares that it is engaged in an independent
business, and agrees to perform the Work as an independent contractor and not as
the employee, agent or servant of Owner. Contractor has and hereby retains the
right to exercise full control and supervision of the Work and full control over
the employment, direction, selection, compensation and discharge of all persons
assisting in the Work. Contractor shall maintain continuously during the term of
this Agreement, at its own expense, adequate disability, unemployment and other
insurance, workers' compensation, and similar items for itself and for its
employees, agents and Subcontractors. Contractor shall deliver to E-Tek upon
request certificates of insurance evidencing such coverage. Contractor agrees to
be solely responsible for all matters relating to payment of its employees,
agents and Subcontractors, and for its own acts and those of its employees,
agents and Subcontractors.
11. Contractor hereby warrants that it is licensed by, and in good standing
with, the California Contractors' State License Board.
12. Contractor shall maintain continuously during the term of this
Agreement, at its own expense, a comprehensive general liability insurance
policy that names E-Tek as a loss payee thereunder in the amount of at least $1
million per occurrence. This policy shall provide for thirty days notice to E-
Tek of the cancellation or material modification thereof. Contractor shall
deliver to E-Tek upon request certificates of insurance evidencing such
coverage.
13. Owner may terminate this Agreement upon written notice to Contractor if
Contractor commits a material breach of this Agreement and fails to cure the
same within five days of its receipt of written notice of such breach. Owner may
terminate this Agreement immediately upon written notice in the event of an
irremediable material breach by Contractor, or upon Contractor's cessation of
business, election to dissolve, dissolution, insolvency, assignment for the
benefit of creditors or filing of bankruptcy, or upon the appointment of a
receiver to Contractor's business
14. Time is of the essence of this Agreement.
15. Each party agrees that any statute, rule or doctrine regarding the
interpretation of contracts against a particular party shall not apply to this
Agreement.
16. As a condition precedent to the formation of this Agreement, and to any
rights and obligations hereunder, consent and approval must be granted from all
applicable government agencies for the proposed Work and to all related
tracings, drawings, plans, blueprints and specifications, and to amendments
thereto.
17. Any dispute, claim or controversy arising from or relating to this
Agreement that the parties cannot settle informally shall be subject to
mediation under the Construction Industry Mediation Rules of the American
Arbitration Association ("AAA"). Mediation shall be initiated by either party
upon written notice, and shall commence within fifteen days thereafter. If the
dispute is not so resolved, then any party may submit the matter to binding
arbitration by, and under the commercial arbitration rules of, the AAA;
provided, that such party must have first attempted in good faith to informally
resolve such dispute. Any such arbitration shall be conducted in San Jose,
California, by one arbitrator selected by the parties. If the parties cannot so
agree, then the AAA shall select the arbitrator. Any controversy of whether an
issue is arbitratable shall be determined by the arbitrator, but such arbitrator
may not limit, expand or otherwise modify the terms of this Agreement. The
arbitrator shall be able to decree any and all relief, subject to the
limitations on liability and other terms provided in this Agreement. The decree
or judgment of an award rendered by the arbitrator shall be conclusive and
binding, and may be entered in any court having jurisdiction. The parties may
engage in reasonable discovery, and the arbitrator may decide all discovery
disputes. The fees and expenses of the arbitrator shall initially be split
evenly between the parties, and each party shall initially bear its own costs in
any arbitration proceeding; provided, that the arbitrator shall award the
prevailing party its reasonable attorneys' fees and costs (including the fees
and expenses of the arbitration) incurred therein. The institution and
maintenance of any civil action for judicial relief or for a provisional or
ancillary remedy shall not constitute a waiver of the right of either party to
submit the dispute to arbitration.
18. If any term or provision of this Agreement shall be held invalid or
unenforceable to any extent, the remainder of this Agreement shall not be
affected and each other term and provision shall be valid to the fullest extent
permitted by law.
19. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter contained herein and supersedes any and all
prior and contemporaneous
agreements, representations and understandings. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by the
parties. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party to be charged.
20. This Agreement shall be binding on and shall inure to the benefit of
the parties and their respective representatives, successors and permitted
assigns; provided, however, that Contractor shall have no right to transfer or
assign any rights or obligations under this Agreement without first obtaining
Owner's written consent. Any attempted assignment in violation of this provision
shall be void.
21. Contractor shall execute and deliver such other and further documents,
and perform such other acts, as are or may become necessary or convenient to
effectuate and carry out the intent and purposes of this Agreement.
22. Owner shall reasonably cooperate with Contractor by providing the
Work's general design objectives, constraints and criteria. Owner shall
designate a representative authorized to act on Owner's behalf with respect to
the Work. To help prevent delays in the Work, Owner or such authorized
representative shall, when required and with reasonable promptness, furnish
information and documents, review documents submitted by Contractor and render
decisions.
23. Any notice required or permitted to be given hereunder shall be in
writing, unless otherwise provided herein, shall be delivered either by
overnight mail or by facsimile, and shall be addressed as follows:
If to Contractor: If to Owner:
Xxxxxxx & Xxxxxxx, Inc. E-Tek Dynamics, Inc.
000 X. Xxxxxxxxx Xxxx. 0000 Xxxxx Xxxxxx
Xxxxx 000 Xxx Xxxx, XX 00000
Xxxxxx Xxxx, XX 00000 Attn.: Legal Department
Attn.: Xxxxxx Xxxxxxxxx Fax: 000.000.0000
Fax: 000.000.0000
Any notice given as aforesaid shall be deemed to have been effectively
given and received (i) if sent by overnight mail, on the date of such delivery,
or, (ii) if sent by facsimile, on the date of transmission. Either party may
change its address of service by written notice given as provided above.
IN WITNESS WHEREOF, Owner and Contractor have each executed this Agreement
as of the date first above written.
OWNER: CONTRACTOR:
E-Tek Dynamics, Inc. Xxxxxxx and Xxxxxxx, Inc.
By: __________________ By: __________________
__________________ __________________
__________________ __________________
[Print Name and Title] [Print Name and Title]
Exhibit A
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Following is a description of the scope of Work. Its scope will be revised by E-
Tek each time a construction design phase reaches 80% drawing completion.
PROJECT DESCRIPTION:
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Subject to the terms of the Agreement, the Work will include the following.
In general, all finishes, restrooms, HVAC (excluding rooftop equipment)
will be renovated. Reference attached drawings:
1. Renovation of 1865, first floor, approximately 30,000 square feet.
. All work to be performed as part of Phase I.
. Space to include lab and manufacturing areas with a small amount of
administration space.
. Reference WHL Construction Documents dated 5/7/98.
2. Renovation of 1875, first floor, approximately 30,000 square feet.
. Renovation to occur in two phases included in Phase II and III.
Coating area to be constructed while occupied.
. Primary functions are labs, shipping/receiving, materials space, and
a large Cafeteria (no service).
3. Renovation of 1875, second floor, approximately 30,000 square feet.
. Renovation to occur in one phase included in Phase II. Area will be
partially occupied during construction.
. Area includes office and materials area.
4. Renovation of 1885, first floor, approximately 30,000 square feet.
. Renovation will occur in three phases included in Phase I, Phase II, Phase
III and Phase IV
. Area includes manufacturing. Additional HVAC rooftop equipment will be needed
to support additional loads.
. For Coupler/Component area reference WHL Construction Documents dated 5/7/98.
5. Renovation of 1885, second floor, approximately 30,000 square feet.
. Area will be in several phases as sub-tenant move out. Work will be included
in Phase I, Phase II, III and V.
. Area includes offices, materials area and training rooms.
Exhibit B
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The parties hereby incorporate the terms of that certain May 6, 1998
E-Tek Dynamics, Inc. Campus Renovation Master Schedule by Xxxxxxx & Xxxxxxx,
Inc., Job No. 2375.
AMENDMENT TO DESIGN AND CONSTRUCTION CONTRACT
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THIS AMENDMENT TO DESIGN AND CONSTRUCTION CONTRACT ("Amendment") is made
and entered into this 15th day of July, 1998, by and between E-Tek Dynamics,
Inc., a California corporation, and Xxxxxxxx & Xxxxxxx, Inc., a California
corporation.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the parties entered into that March 30, 1998 Design and
Construction Contract ("Agreement"), and now wish to amend the same on the terms
and conditions set forth herein.
NOW, THEREFORE, for valuable consideration, the parties agree as follows.
A G R E E M E N T
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1. Amendments.
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This will confirm that the drawings of the following items of the
Agreement's Exhibit A - Description of the Scope of Work - are eighty percent
or more completed, and that the attached Phase 1 - Guaranteed Maximum Price sets
forth the maximum amounts payable to Contractor for the corresponding
projects/phases.
A. Renovation of 1865, first floor, approximately 30,000 square feet.
. Space to include lab and manufacturing areas with a small amount
of administration space.
. Reference WHL Construction Documents dated 5/07/98 WHL Project
#98132
B. Renovation of 1885, first floor, Coupler/Components area,
approximately 9,000 square feet.
. Area includes manufacturing with small lab support and
gas/chemical area.
. For Coupler/Component area reference WHL Construction Documents
dated 5/7/98 WHL Project #98124.10
C. Renovation of 1885, second floor, WDM area, approximately 4,600
square feet.
. Area includes manufacturing only.
. Reference WHL Construction Drawings dated 4/22/98, WHL project
#98124.0
2. Interpretation; Remainder of Agreement. Capitalized words and terms are
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used in this Agreement as such words and terms are defined in the Agreement.
Except as expressly provided herein, the parties' respective rights, duties and
obligations under the Agreement are modified and shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date first written above.
E-TEK Dynamics, Inc. Xxxxxxx & Xxxxxxx, Inc.
By: ___________________ By: ______________________
Xxxxx Xxxxxx ______________________
Corporate Facilities Manager ______________________
[Print Name and Title]
