Standard Form of Agreement Between Owner And Architect

EXHIBIT 10.24


AIA Document B141/CMa - Electronic Format


Standard Form of Agreement Between
Owner and Architect


Where the Construction Manager is NOT a Constructor


1992 CONSTRUCTION MANAGER - ADVISER EDITION


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.


This document is intended to be used in conjunction with the 1992 editions of AIA Documents B801/CMa, A101/CMa and A201/CMa.


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 the written permission of the AIA violates the copyright laws of the United States and will subject the violator to legal prosecution.


AGREEMENT made as of the 15th day of January in the year of 2003 (In words, indicate day, month and year.)


BETWEEN the Owner: (Name and address) Advanced Neuromodulation Systems 6501 Windcrest, Suite 100 Plano, TX 75024 ATTN: MR. MYRON ALBERT


and the Architect: (Name and address) Good Fulton & Farrell Architects 2808 Fairmount, Suite 300 Dallas, TX 75201 ATTN: JOSEPH J. PATTI


for the following Project: (Include detailed description of Project, location, address and scope.)


A two-story building of approximately 143,500 S.F. as defined in the Project Definition Requirements - Final Report dated 12.26.02, and incorporated herein by reference, located on Lot 2 EDS Lakes Addition Block B, a 15.413-acre (10.00 acre net) tract, Plano, Texas.


The Construction Manager is: (Name and address) Koll Development Company 8411 Preston Rd., Suite 700 Dallas, Texas 75225 ATTN: MIKE ROSAMOND


The Owner and Architect agree as set forth below.


TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT


ARTICLE 1
ARCHITECT'S RESPONSIBILITIES


1.1 ARCHITECT'S SERVICES


(C) 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W. WASHINGTON, D.C. 200016-5292. AIA DOCUMENT B141/CMa - OWNER-ARCHITECT AGREEMENT - CONSTRUCTION MANAGER-ADVISER EDITION - 1992 EDITION - AIA(R) - WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator 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. User Document: ans b141cma v3.aia -- 6/16/2003. AIA License Number 1013444, which expires on 1/31/2004.


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1.1.1 The Architect's services consist of those services performed by the Architect, Architect's employees and Architect's consultants as enumerated in Articles 2 and 3 of this Agreement and any other services included in Article 12.


1.1.2 The Architect's services shall be provided in conjunction with the services of a Construction Manager as described in the edition of AIA Document B801/CMa, Standard Form of Agreement Between Owner and Construction Manager, current as of the date of this Agreement. Architect agrees that it will cooperate and consult with the Construction Manager, and will incorporate any value engineering proposals where directed in writing by the Construction Manager and approved by the Owner, and will incorporate such proposals in accordance with the provisions of this Agreement.


1.1.3 The Architect's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Work. The Architect shall submit for the Owner's approval and the Construction Manager's information a schedule for the performance of the Architect's services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the Owner's and Construction Manager's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Architect or Owner.


1.1.4 The services covered by this Agreement are subject to the time limitations contained in Subparagraph 11.5.1.


ARTICLE 2
SCOPE OF ARCHITECT'S BASIC SERVICES


2.1 DEFINITION


2.1.1 The Architect's Basic Services consist of those described in 2.2 through 2.6 and any other services identified in Article 12 as part of Basic Services, and include normal structural, civil, landscape architecture, mechanical and electrical engineering services.


2.2 SCHEMATIC DESIGN PHASE


2.2.1 The Architect shall prepare the program and review the schedule and construction budget furnished by the Owner to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner.


2.2.2 The Architect shall review with the Owner and Construction Manager proposed site use and improvements; selection of materials, building systems and equipment; and methods of Project delivery.


2.2.3 The Architect shall review with the Owner and Construction Manager alternative approaches to design and construction of the Project.


2.2.4 Based on the mutually approved program, schedule and construction budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components.


2.2.5 At intervals appropriate to the progress of the Schematic Design Phase and mutually agreeable to the Owner, Construction Manager and Architect, the Architect shall provide schematic design studies for the Owner's review and the Construction Manager's information.


2.2.6 In the further development of the drawings and specifications during this and subsequent phases of design, the Architect shall be entitled to assume the accuracy of the estimates of Construction Cost which are to be provided by the Construction Manager under the Construction Manager's agreement with the Owner.


2.2.7 Upon completion of the Schematic Design Phase, the Architect shall provide drawings, outline specifications and other documents for the Owner's approval and the Construction Manager's information.


2.3 DESIGN DEVELOPMENT PHASE


2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Architect shall prepare Design Development Documents for the Construction Manager's review and the Owner's approval. The Design Development Documents shall be based upon data and estimates prepared by the Construction Manager and shall consist of drawings and other documents that establish and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate.


2.3.2 At intervals mutually agreeable to the Owner, Construction Manager and Architect, the Architect shall provide drawings and other documents which depict the current status of design development for the Owner's review and the Construction Manager's information.


2.3.3 Upon completion of the Design Development Phase, the Architect shall provide drawings, outline specifications and other documents for the Owner's approval and the Construction Manager's information.


2.4 CONSTRUCTION DOCUMENTS PHASE


2.4.1 Based on the approved Design Development Documents and any further adjustments authorized by the Owner in the scope or quality of the Project or in the construction budget, the Architect, utilizing data and estimates prepared by the Construction Manager, shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail the


AIA DOCUMENT B141/CMa - OWNER-ARCHITECT AGREEMENT - CONSTRUCTION MANAGER-ADVISER EDITION - 1992 EDITION - AIA(R) - (C) 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator 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. User Document: b141 01_15_03.aia -- 2/10/2003. AIA License Number 1009668, which expires on 3/28/2003.


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requirements for the construction of the Project. The Architect will incorporate value engineering items into the Construction Documents as directed in writing by the Construction Manager and approved by Owner and will incorporate such value engineering items in accordance with the provisions of this Agreement.


2.4.2 At intervals mutually agreeable to the Owner, Construction Manager and Architect, the Architect shall provide Drawings and Specifications for the Owner's and the Construction Manager's review.


2.4.3 Upon completion of the Construction Documents Phase, the Architect shall provide Construction Documents for the Owner's approval and the Construction Manager's information.


2.4.4 The Architect shall assist the Owner and Construction Manager in the preparation of the necessary bidding information, bidding forms, the Conditions of the Contracts, and the forms of Agreement between the Owner and the Contractors. The Architect shall assist the Construction Manager in issuing bidding documents to bidders and conducting prebid conferences with prospective bidders. The Architect, with the assistance of the Construction Manager, shall respond to questions from bidders, and shall issue addenda.


2.4.5 The Architect shall assist the Owner and Construction Manager in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project.


2.5 BIDDING OR NEGOTIATION PHASE


2.5.1 The Architect, following the Owner's approval of the Construction Documents and of the Construction Manager's latest estimate of Construction Cost, shall assist the Construction Manager in obtaining bids or negotiated proposals and assist in preparing contracts for construction.


2.6 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT


2.6.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for construction and terminates 30 days after final completion of the Work.


2.6.2 The Architect shall provide administration of the Contract for construction in cooperation with the Construction Manager as set forth below and in the edition of AIA Document A20l/CMa, General Conditions of the Contract for Construction, Construction Manager-Adviser Edition, as amended, current as of the date of this Agreement.


Provided, however, with respect to the responsibilities and duties of the Architect, the General Conditions shall be modified to be consistent with this Agreement.


2.6.3 Duties, responsibilities and limitations of authority of the Architect shall not be restricted, modified or extended without written agreement of the Owner and Architect with consent of the Contractors and the Construction Manager, which consent shall not be unreasonably withheld.


2.6.4 The Architect shall be a representative of and shall advise and consult with the Owner (1) during construction until final payment to the Contractors is due, and (2) as an Additional Service at the Owner's direction from time to time during the correction period described in the Contracts for Construction. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by written instrument.


2.6.5 The Architect shall visit the site at regular intervals appropriate to the stage of construction or as otherwise agreed by the Owner and Architect in writing to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of on-site observations as an architect, the Architect shall keep the Owner informed of the progress and quality of the Work, and defects and deficiencies in the Work. The Architect will exercise professional care and customary diligence in discovering and promptly reporting to the Construction Manager and Owner any observable material defects or deficiencies in the Project or the Work of the Contractors, any Subcontractors, or any sub-subcontractors, their agents or employees, or any person performing any of the Work in the construction of the Project. (More extensive site representation may be agreed to as an Additional Service, as described in Paragraph 3.2.)


2.6.6 The Architect shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are the Contractors' responsibility under the Contracts for Construction. The Architect shall not be responsible for the Contractors' schedules or failure to carry out the Work in accordance with the Contract Documents. The Architect shall not be responsible for the performance by the Construction Manager of the services required by the Construction Manager's agreement with the Owner. The Architect shall not have control over or charge of acts or omissions of the Contractors, Subcontractors, or their agents or employees, or of any other persons performing services or portions of the Work, but will promptly advise the Owner and Construction Manager of any material wrongful or non conforming acts or omissions.


AIA DOCUMENT B141/CMa - OWNER-ARCHITECT AGREEMENT - CONSTRUCTION MANAGER-ADVISER EDITION - 1992 EDITION - AIA(R) - (C) 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator 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. User Document: b141 01_15_03.aia -- 2/10/2003, AIA License Number 1009668, which expires on 3/28/2003.


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which the Architect discovers during the course of its duties under the Contractor Documents.


2.6.7 The Architect shall at all times have access to the Work wherever it is in preparation or progress.


2.6.8 Communications by and with the Architect's consultants shall be through the Architect.


2.6.9 Based on the Architect's observations and evaluations of each Contractor's Application for Payment, the Architect shall review and certify the amounts due the respective Contractors.


2.6.9.1 The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's observations at the site as provided in Subparagraph 2.6.5, on the recommendations of the Construction Manager and on the data comprising the Contractors' Applications for Payment, that, to the best of the Architect's knowledge, information and belief, the Work has progressed to the point indicated and the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified.


2.6.9.2 The issuance of a Certificate for Payment shall not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum.


2.6.10 The Architect shall have authority, after notification to the Construction Manager, to reject Work which does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority, upon written authorization from the Owner, to require additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Construction Manager, Contractors, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the Work.


2.6.11 The Architect shall review and approve or take other appropriate action upon Contractors' submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action shall be taken with such reasonable promptness as to cause no delay in the Contractors' Work or in construction by the Owner's own forces, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractors, all of which remain the responsibility of the Contractors to the extent required by the Contract Documents. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Architect shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents.


2.6.12 The Architect shall review and sign or take other appropriate action on Change Orders and Construction Change Directives prepared by the Construction Manager for the Owner's approval and execution in accordance with the Contract Documents.


2.6.13 The Architect may authorize minor changes in Work not involving an adjustment in a Contract Sum or an extension of a Contract Time which are not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order issued through the Construction Manager.


2.6.14 The Architect, assisted by the Construction Manager, shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion. The Architect shall forward to the Owner warranties and similar submittals required by the Contract Documents which have been received from the Construction Manager. The Architect shall issue a final Project Certificate for Payment upon compliance with the requirements of the Contract Documents.


2.6.15 The Architect shall interpret and decide matters concerning performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made with reasonable promptness and within any time limits agreed upon.


2.6.16 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the Architect shall endeavor to secure faithful


AIA DOCUMENT B141/CMa - OWNER-ARCHITECT AGREEMENT - CONSTRUCTION MANAGER-ADVISER EDITION - 1992 EDITION - AIA(R) - (C) 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator 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. User Document: b141 01_15_ 03.aia--2/10/2003. AIA License Number 1009668, which expires on 3/28/2003.


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performance by both Owner and Contractors, shall not show partiality to either, and shall not be liable for results of interpretations or decisions so rendered in good faith.


2.6.17 The Architect's decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents, unless a written objection is received from the Owner, which shall overrule the decision of the Architect.


2.6.18 The Architect shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractors relating to the execution or progress of the Work as provided in the Contract Documents.


2.6.19 The Architect's decisions on claims, disputes or other matters, including those in question between the Owner and Contractors, except for those relating to aesthetic effect as provided in Subparagraph 2.6.17, shall be subject to arbitration as provided in this Agreement and in the Contract Documents.


2.6.20 The Architect will respond to reasonable requests for information submitted by the Contractor or others involved in the Project.


2.6.21 Owner will be provided a complete set of reproducible record drawings and one set of Specifications ( together with a computer aided design disk containing such Drawings and Specifications) showing all material changes in the Work made during construction and revisions to the Drawings and Specifications made by the Architect. Contractor shall provide record drawings to the Owner, based on actual construction on site. Architect shall cooperate with Contractor by providing electronic backgrounds for use by the Contractor in creating record drawings, at no cost to the Owner or Contractor.


ARTICLE 3
ADDITIONAL SERVICES


3.1 GENERAL


3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in Article 12, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The services described under Paragraphs 3.2 and 3.4 shall only be provided if authorized or confirmed in writing and in advance by the Owner. If services described under Contingent Additional Services in Paragraph 3.3 are required due to circumstances beyond the Architect's control, the Architect shall notify the Owner prior to commencing such services. If the Owner deems that such services described under Paragraph 3.3 are not required, the Owner shall give prompt written notice to the Architect. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Architect shall have no obligation to provide those services. Provided, however, the Owner will not be required to pay and the Architect will not be entitled to receive reimbursement or compensation for any Additional Services or Contingent Additional Services, if such services were required due to the fault of the Architect.


3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES


3.2.1 If more extensive representation at the site than is described in Subparagraph 2.6.5 is required, the Architect shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities.


3.2.2 Project Representatives shall be selected, employed and directed by the Architect, and the Architect shall be compensated therefor as agreed by the Owner and Architect. The duties, responsibilities and limitations of authority of Project Representatives shall be as described in the edition of AIA Document B352 current as of the date of this Agreement, unless otherwise agreed.


3.2.3 Through the observations by such Project Representatives, the Architect shall endeavor to provide further protection for the Owner against defects and deficiencies in the Work, but the furnishing of such project representation shall not modify the rights, responsibilities or obligations of the Architect as described elsewhere in this Agreement.


3.3 CONTINGENT ADDITIONAL SERVICES


3.3.1 Making revisions in Drawings, Specifications, or other documents when such revisions are:


.1 inconsistent with written approvals or instructions previously
given by the Owner, including revisions made necessary by
adjustments in the Owner's program or Project budget;


.2 requested by the Owner because the Construction Manager's
estimate of Construction Cost exceeds the Owner's budget,
except where such excess is due to changes initiated by the
Architect in scope, capacities of basic systems, or the kinds
and quality of materials, finishes or equipment;


.3 required by the enactment or revision of codes, laws or
regulations subsequent to the preparation of such documents;
or


.4 due to changes required as a result of the Owner's failure to
render decisions in a timely manner provided that Owner was
notified at least 15 days prior thereto and given the right to
cure.


3.3.2 Providing services required because of significant changes in the Project including, but not limited to, changes in size, quality, complexity, the Owner's or Construction Manager's schedule, or the method of bidding or negotiating


AIA DOCUMENT B141/CMa OWNER-ARCHITECT AGREEMENT - CONSTRUCTION MANAGER-ADVISER EDITION-1992 EDITION - AIA(R)-(C)1992 -THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates ...