Standard Form Of Agreement-owner And Contractor

EXHIBIT 10.23


AIA Document A101/CMa


Standard Form of Agreement
Between Owner and Contractor
where the basis of payment is a STIPULATED SUM
1992 Construction Manager-Adviser Edition - Electronic Format


THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.


The 1992 Edition of AIA Document A201/CMa, General Conditions of the Contract for Construction, Construction Manager-Adviser Edition, is adopted in this document by reference. Do not use with other general conditions unless this document is modified.


Copyright 1975, 1980, (C) 1992 by The American Institute of Architects, 1735 New York Avenue N.W., Washington D.C. 20006-5292. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will be subject to legal prosecution.


AGREEMENT made as of the 30 day of April in the year of 2003 (In words, indicate day, month and year)


BETWEEN the Owner: (Name and address) Advanced Neuromodulation Systems, Inc. 6501 Windcrest Drive, Suite 100 Plano, Texas 75024


and the Contractor: (Name and address) Roger's-O'Brien Construction Co., Inc. 1901 Regal Row Dallas, Texas 75235


For the following Project: (Include detailed description of Project, location, address and scope.) Advanced Neuromodulation Systems, Inc. at Legacy Business Park Preston Road at Tennyson Drive Plano, Texas 75024


The Construction Manager is: (Name and address) KDC-Legacy, L.P. 8411 Preston Rd., Su. 700 Dallas, TX 75225


The Architect is: (Name and address) Good Fulton & Farrell 2808 Fairmount, Suite 300 Dallas, Texas 75201


The Owner and Contractor agree as set forth below.


ARTICLE 1
THE CONTRACT DOCUMENTS


The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions),


(C) 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. AIA DOCUMENT A101/CMa - OWNER-CONTRACTOR AGREEMENT - CONSTRUCTION MANAGER-ADVISER EDITION - AIA(R) - WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below. User Document: ansa101ed5 aug6.aia -- 8/25/2003. AIA License Number 1005237, which expires on 10/18/2003.


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Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement; these form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than Modifications, appears in Article 9.


ARTICLE 2
THE WORK OF THIS CONTRACT


The Contractor shall execute the entire Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others, or as follows:


Construction of all work shown on the contract documents, as further clarified or amended by the exhibits to this Agreement.


ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


3.1 The date of commencement is the date from which the Contract Time of Paragraph 3.2 is measured, and shall be the date of this Agreement, as first written above, unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner.


(Insert the date of commencement, it it differs from the date of this Agreement or, if applicable, state that the dale will he fixed in a notice to proceed.)


Date of commencement: April 30, 2003 Site mobilization: May 7, 2003 (reference Owner's Notice to Proceed dated April 30, 2003, with clarifying memo dated May 5, 2003.)


Unless the date of commencement is established by a notice to proceed issued by the Owner, the Contractor shall notify the Owner, through the Construction Manager, in writing not less than five days before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other security interests.


3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than


(Insert the calendar date or number of calendar days after the date of commencement. Also insert any requirements for earlier Substantial Completion of certain portions of the Work, if not stated elsewhere in the Contract Documents.)


Substantial Completion Date: February 11, 2004, based on receipt of permits from the City of Plano as follows:


GRADING PERMIT: MAY 8, 2003


UTILITY PERMIT: MAY 14, 2003


FOUNDATION & UNDERGROUND BUILDING PERMIT: MAY 28, 2003


SHELL, SITE & CORE BUILDING PERMIT: JULY 23, 2003


, subject to adjustments of this Contract Time as provided in the Contract Documents.


(Insert provisions, if any, for liquidated damages relating to failure to complete on time.)


ARTICLE 4
BASIS FOR PAYMENT


4.1 CONTRACT SUM


4.1.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract. The Contract Sum is the Cost of the Work as defined in Article 4.4 plus the Contractor's Fee.


4.1.2 The Contractor's Fee is: Three and One Quarter Percent (3.25%) of the Cost of the Work.


(C) 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. AIA DOCUMENT A101/CMa - OWNER-CONTRACTOR AGREEMENT - CONSTRUCTION MANAGER-ADVISER EDITION - AIA(R) - WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below. User Document: ansa101ed5 aug6.aia -- 8/6/2003. AIA License Number 1005237, which expires on 10/18/2003.


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The Contractor's Fee for changes in the Work which result in a net increase in the Cost of the Work shall be three and one quarter percent (3.25%) of such net increase.


4.2 GUARANTEED MAXIMUM PRICE


4.2.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed by the Contractor not to exceed SEVEN MILLION EIGHT HUNDRED ELEVEN THOUSAND ONE HUNDRED TWENTY EIGHT DOLLARS ($ 7,811,128), subject to additions and deductions by Change Order as provided in the Contract Documents. Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price (GMP). Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement by the Owner. THE GMP IS BASED ON THE COLUMN DATED MAY 5, 2003 IN EXHIBIT "A", SCHEDULE OF VALUES.


4.2.1.1 The Guaranteed Maximum Price includes an amount for Contractor's general conditions expenses, as detailed in Exhibit B. General Conditions expenses are guaranteed not to exceed TWO HUNDRED FIFTY THREE THOUSAND SIX HUNDRED FORTY ONE DOLLARS ($ 253,641) in the Cost of the Work.


4.2.1.2 Savings, if any, between the final Guaranteed Maximum Price and the final Cost of the Work, plus Contractor's Fees shall be split between the Owner and the Contractor on the basis of seventy percent (70%) to the Owner and thirty percent (30%) to the Contractor.


4.2.2 The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the Contract Documents and are hereby accepted, rejected, or pending (deferred), as noted (pending or deferred alternates may be accepted at a later date at the stated amount, if accepted within a time frame allowing their inclusion into the scheduled sequence of the work).


Reference Exhibit "A" for accepted, rejected, and pending (deferred) alternates and value engineering. ALTERNATES ARE INCLUDED OR EXCLUDED, AS NOTED IN EXHIBIT "A", IN THE AMOUNTS SHOWN IN THE COLUMN DATED MAY 5, 2003.


Additional deferred alternate pricing:


1) Provide pre-finished corrugated (horizontal) metal roof screen panels in lieu of galvanized perforated metal panels.


Add: Four Thousand Five Hundred Dollars ($4,500.00)


4.2.3 Unit prices, if any, are as follows: Unit prices are inclusive of Cost of Work, General Conditions and Fees.


Reference Exhibit "C" for unit prices.


4.2.4 Allowances, if any, are as follows:


Reference Exhibit "D" for allowances.


4.2.5 Assumptions and clarifications, if any, on which the Guaranteed Maximum Price is based are as follows:


Reference Exhibit "E" for assumptions and clarifications


4.2.6 To the extent that the Drawings and Specifications are anticipated to require further development by the Architect, the Contractor has provided in the Guaranteed Maximum Price for such further development consistent with the current Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order.


(C) 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. AIA DOCUMENT A101/CMa - OWNER-CONTRACTOR AGREEMENT - CONSTRUCTION MANAGER-ADVISER EDITION-AIA(R) - WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below. User Document: ansa101ed5 aug6.aia -- 8/6/2003. AIA License Number 1005237, which expires on 10/18/2003.


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4.3 CHANGES IN THE WORK


4.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work shall be authorized or agreed upon in writing and as allowed under Article 7 of AIA Document A201 / CMa-1992, as amended and made a part of this Agreement.


4.3.2 (Paragraph intentionally deleted)


4.3.3 In calculating adjustments to the Guaranteed Maximum Price, the terms "cost" and "costs" as used in the above- referenced provisions of AIA Document A201/CMa-1992 shall mean the Cost of the Work as defined in Article 4.4 of this Agreement and the terms "fee and "a reasonable allowance for overhead and profit" shall mean the Contractor's Fee as defined in Subparagraph 4.1.2 of this Agreement.


4.4 COSTS TO BE REIMBURSED


4.4.1 COST OF THE WORK


The term Cost of the Work shall mean costs necessarily incurred by the Contractor in the proper performance of the Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in this Paragraph 4.4.


4.4.2 LABOR COSTS


4.4.2.1 Wages of construction workers directly employed by the Contractor to perform the construction of the Work at the site or, with the Owner's prior approval, at off-site workshops.


4.4.2.2 Wages or salaries of the Contractor's supervisory and administrative personnel when stationed at the site with the Owner's approval. This shall specifically include Contractor's Safety Manager in the prosecution of their work for this specific project and for the time spent on this specific project site. The number of employees in these classifications and the rates of pay shall be subject to the prior approval of Owner.


4.4.2.3 Wages and salaries of the Contractor's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. The number of employees in these classifications and the rates of pay shall be subject to the prior approval of Owner.


4.4.2.4 Actual costs paid or incurred by the Contractor for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and 401k matching payments, provided such


(C) 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. AIA DOCUMENT A101/CMa - OWNER-CONTRACTOR AGREEMENT - CONSTRUCTION MANAGER-ADVISER EDITION - AIA(R) - WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below, expiration as noted below. User Document: ansa101ed5 aug6.aia -- 8/6/2003. AIA License Number 1005237, which expires on 10/18/2003.


Electronic Format A101/CMa-1992


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costs are based on wages and salaries included in the Cost of the Work under Subparagraphs 4.4.2.1 through 4.4.2.3 Performance incentives or bonuses paid to Contractor's personnel shall not be included as part of the Cost of the Work without Owner's written consent, obtained by Contractor prior to incurring such costs for performance incentives or bonuses.


4.4.3 SUBCONTRACT COSTS


4.4.3.1 Payments made by the Contractor to Subcontractors in accordance with the requirements of the subcontracts properly entered into under this Agreement.


Savings, bonuses or incentives paid for performance of Subcontractors; or by subcontractors to their employees or Subcontractors shall be subject to the written approval of the Owner, obtained in advance of Contractor incurring such costs, and shall be so stipulated in each subcontract agreement.


4.4.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION


4.4.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction.


4.4.4.2 Costs of materials described in the preceding Subparagraph 4.4.4.1 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the Owner's property at the completion of the Work or, at the Owner's option, shall be sold by the Contractor. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work.


4.4.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND
RELATED ITEMS


4.4.5.1 Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials, supplies temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers, that are provided by the Contractor at the site and fully consumed in the performance of the Work; and cost (less salvage value) of such items if not fully consumed, whether sold to others or retained by the Contractor. Cost for items previously used by the Contractor shall mean fair market value.


4.4.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers that are provided by the Contractor at the site, whether rented from the Contractor or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantitie ...