Construction Services Agreement With Aes Clean Technology, Inc.

Exhibit 10.39


DESIGN/BUILD AGREEMENT

Between


DENDREON CORPORATION,


Owner


and


AES CLEAN TECHNOLOGY, INC.,

Contractor

for a


Therapeutic Biotechnology Processing Facility

Biotechnology Processing Modules

and Related Structures

Ross & Cohen, LLP 711 Third Avenue

New York, New York 10017

(212) 370-1200

TABLE OF CONTENTS


ARTICLE I Scope of the Services 1

1.2 Intent of Contract Documents 2

1.3 Obligations 3

1.4 Quality, Quantity and Labeling 3

1.5 Phased Development of the Project 3

ARTICLE II The Design Work and the Construction Work 4

2.1 Design Phase 4

2.1.1 Owners Responsibilities During Design 7

2.1.2 Ownership of Design Documents 7

ARTICLE III Guaranteed Maximum Price 14

ARTICLE IV Design/Builders Fee 14

4.1 Items Covered By Design Builder' s Fee 14

ARTICLE V Reimbursable Costs 15

ARTICLE VI Non-Reimbursable Costs 17

ARTICLE VII Schedule of the Work and Early Occupancy 18

ARTICLE VIII Trade Contracts 21

ARTICLE IX INTENTIONALLY OMITTED 23

ARTICLE X Accounting Records 23

ARTICLE XI Applications for Payment 23

ARTICLE XII Assignment 26

ARTICLE XIII Liens and Claims 27

ARTICLE XIV Events of Default and Termination or Suspension of Agreement 28

ARTICLE XV Bonds 32

ARTICLE XVI Management of the Work by Design/Builder and Owner 32

ARTICLE XVII Consultants 33

ARTICLE XVIII Codes 33

ARTICLE XIX Insurance 33

ARTICLE XX Hazardous Materials 34

ARTICLE XXI Materials and Equipment 35

ARTICLE XXII Substitutions 36

ARTICLE XXIII Changes in the Work 38

ARTICLE XXIV Inspection and Testing 41

ARTICLE XXV Nondisclosure 43

ARTICLE XXVI Owner' s Right To Perform Work And to Award Separate Contracts; and Cooperation with Separate Contractors 43

ARTICLE XXVII Equal Opportunity 44

ARTICLE XXVIII Claims For Damages 45

ARTICLE XXIX Additional Provisions 45

EXHIBIT A Design/Builder' s Proposal of July 20, 2005

EXHIBIT B Guaranteed Maximum Price

EXHIBIT C General Conditions Costs

EXHIBIT D

Progress Schedule

EXHIBIT E

Intentionally Omitted

EXHIBIT F

Insurance Requirements

EXHIBIT G

Intentionally Omitted

EXHIBIT H

Form of Trade Contract Award Letter

EXHIBIT I

Intentionally Omitted

EXHIBIT J

Performance and Payment Bonds

THIS AGREEMENT is made as of the 4th day of November, 2005 by and between DENDREON CORPORATION having an office at 3005 First Avenue, Seattle, WA 98121 (" Owner" ) and AES CLEAN TECHNOLOGY, INC., having an office at 422 Stump Road, Montgomeryville, PA 18936-9631 (" Design/Builder or D/B" ).

W I T N E S S E T H:

WHEREAS, Owner is developing a therapeutic biotechnology processing facility at 220 Hanover Avenue, Hanover, New Jersey (the " Facility" ), and Owner has entered into certain agreements with contractors for the provision of certain design, architectural, engineering and construction services with respect to the Facility.


WHEREAS, Owner has retained (i) Perkins & Will (the " Architect" ) to provider certain Architectural services for the Facility, (ii) Affiliated Engineers NW, Inc. (the " Engineer" ) to provide certain engineering services for the Facility (collectively " Architect and Engineer" shall be referred to as " Owner' s Consultants" ) (iii) and " Henderson Corp. (the " Contractor" ) to provide certain construction services in connection with the Facility.


WHEREAS, Owner desires to retain the services of a Design/Builder in connection with the design and construction of class 10,000 clean rooms and adjacent corridors to be located within the Facility including but not limited to the design and construction of GMP production modules and related corridors and ancillary systems (collectively the " Project" ) and to coordinate its work with Owner' s Consultants and Contractor.

WHEREAS, Design/Builder desires to be retained by Owner to perform the services (hereinafter defined), all in accordance with the terms and conditions of this Agreement and the other documents (hereinafter collectively referred to as the " Contract Documents" ).

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, Design/Builder and Owner agree as follows:

ARTICLE I

Scope of the Services 1.1

Design/Builder shall perform and complete, or cause to be performed and completed, the design and construction of all work required for the Project, all in strict conformity with the Design/Builder' s Proposal of July 20, 2005 as set forth in Exhibit A. The performance of all architectural and engineering services and the preparation of all schematic preliminary, design development and construction drawings, plans and specifications (collectively the " Contract Documents" ) and the performance of all labor and the furnishing of all materials


1

and equipment for and on account of the Project, are hereinafter collectively referred to as the " Services" . 1.2 Intent of Contract Documents

a. The intent of the Contract Documents is to include in the Services all applicable labor and materials, insurance, tools, equipment, licenses, approvals, transportation, surveys, testing, field engineering, design and other professional services and any other items required to design, construct and complete the Project satisfactorily in the interest of Owner and in accordance with Exhibit A. Design/Builder shall perform and complete the Services in strict accordance with the intent and meaning of the work to be performed on account of the Project so as to produce the intended result;

b. The Contract Documents are complementary and what is called for by one shall be as binding as if called for by all; c. If any conflicts or ambiguities are found in or among any of the Contract Documents, they shall be brought to the attention of the Owner immediately for resolution. The Owner will resolve same in a manner so as to secure, in all cases, the most substantial and complete performance of the Services, consistent with the Contract Documents;

d. Addenda to parts of the Contract Documents are for the purpose of varying, modifying, rescinding or adding to portion of the Contract Documents. All addenda should be read together with the portions of the Contract Documents to which they pertain. Where an addendum modifies a portion of a paragraph or a section, the remainder of the paragraph or section shall remain in full force and effect unless otherwise stated in the addendum;

e. Captions, headings, cover pages, tables of contents and footnote instructions contained in the Contract Documents are inserted only to facilitate reference and for convenience and in no way define, limit or proscribe the scope, intent or meaning of any provisions of any of the Contract Documents;

f. Words and abbreviations which have well known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings; and

g. Should a conflict or discrepancy occur in, between or among any parts of the Contract Documents, the more reasonable way of performing the Services and the better quality to achieve the purpose intended shall govern, unless the Owner shall otherwise direct.


2 1.3 Obligations

a. Design/Builder in a good and workmanlike manner, shall perform all the Services required in accordance with commercial standards applicable at the time the work is performed and to the satisfaction of Owner. Design/Builder shall supervise and direct the performance of the Services using its best skill, judgment and attention. Design/Builder shall be solely responsible for all construction means, methods, techniques, sequences and procedures within the scope of the Work;

b. Design/Builder shall furnish, erect, maintain and remove such construction and such temporary work as may be required. Design/Builder shall be responsible for the safety, efficiency and adequacy of Design/Builder applications and methods, and for damage which may result from failure or improper construction, maintenance or operation of such applications and methods; c. Design/Builder shall deliver all Materials at such times and in such quantities as will insure the speedy and uninterrupted progress of the Work. All materials shall be delivered to the Site in proper order and quantity. Design/Builder shall handle and take care of all Materials, as the same are delivered to the Site.

d. All Purchase Orders, guarantees or warranties executed and/or delivered in connection with the Materials which are pre-purchased by Design/Builder as provided herein, shall provide that if, upon inspection of the same by Owner, or if upon incorporation of the same in the Project, Owner determines that such materials, or any portion thereof, are faulty or defective in any respect, such materials shall be replaced, at the sole cost and expense of the Design/Builder, within sixty (60) days after receipt of written notice to such effect from Owner.

1.4 Quality, Quantity and Labeling

All materials furnished shall be new unless stated otherwise. When materials are specified to conform to any standard, the materials delivered to the Site shall bear manufacturer' s label stating that the materials meet such standards. The above requirements shall not restrict or affect Owner' s right to test materials as provided in the Contract Documents and Article XXV hereof.

1.5 Phased Development of the Project

The Services of Design/Builder shall be performed generally in two phases:

a. the " Design Phase" ; and

b. the " Construction Phase" .

Each phase may be further subdivided as hereinafter set forth.


3

ARTICLE II


The Design Work and the Construction Work

2.1 Design Phase

Design/Builder agrees that during the pre-construction phase of the Work (the " Design Phase" ) it shall perform the following services to the extent such services are needed or requested by Owner given that Owner has elected to proceed on a fast-track basis:

a. Design/Builder shall perform or cause to be performed all architectural, structural, engineering, related programming, designing, drafting, testing, inspection and other services, including without limitation, the preparation of all drawings and specifications necessary to complete the design of all portions of the Project in accordance with the terms of this Agreement and the Scope of Work. Design/Builder has generally familiarized itself with the Site, the Contract Documents and agrees to design and construct the Project in strict accordance with the Scope of Work;

b. Design/Builder shall consult with Owner and such other Consultants designated by Owner to ascertain Owner' s needs and goals and the requirements of the Project;

c. Design/Builder shall visit the site, become familiar with the local conditions, and correlate observable conditions with the requirements of the Owner' s program; schedule, and budget;

d. Design/Builder shall review laws applicable to design and construction of the Project; correlate such laws with the Owner' s program requirements; and advise the Owner if any program requirement may cause a violation of such laws;

e. Design/Builder' s duties during the Design Phase shall include, but shall not be limited to, the following: i. Preparation of all preliminary and schematic design documents, consisting of drawings and other documents illustrating the scale and relationship of Project components and the coordination with the design of the Facility; furnishing copies thereof to the Owner for review;

ii. Based on final schematic design documents reviewed by Owner, preparation of design development documents, consisting of drawings and other documents, to fix and describe the size and character of the entire Project as to structural, mechanical and electrical, Materials and such other essentials as may be appropriate or required; furnishing copies thereof to the Owner and obtaining Owner' s review therefor;


4 iii. Based on design development documents reviewed by Owner and coordinated with the design of the Facility, preparation of all construction drawings, plans and specifications, setting forth the requirements of the Project, in detail sufficient to enable Trade Contractors and Materialmen to bid their respective portions of the Work; furnishing copies thereof to the Owner and obtaining Owner' s comments therefor;

iv. Documentation of all changes in the Design Criteria made during the course of the Work; furnishing copies of such changes to the Owner and obtaining Owner' s approval thereof; and

v. Preparation of the " Progress Schedule" as defined in Article 2.2(e) below for the design and construction of the different components of the Project, indicating design task, durations, milestones, reviews and approvals, and specifying the planned timing of each element comprising the Project, as same may be updated and revised from time to time, with the prior approval of Owner in accordance with the terms of this Agreement;

f. All charges and fees for services rendered by any Design Consultants or others retained by Design/Builder subject to Owner' s approval in connection with the Design Work, shall be included in, and compensated for Design/Builder as part of, the Contract Sum payable by Owner hereunder for the Services;

g. Design/Builder shall be responsible for coordination of its services with those of the Owner' s Consultants so as to provide a coordinated set for Construction Documents for preparation and submission of documents required for the approval of all applicable governmental authorities having jurisdiction over the Project and provide assistance to, and cooperate with Owner and Owner' s consultants in obtaining all necessary approvals of Government Authorities having jurisdiction over the Project;

h. In connection with the design services listed above, Design/Builder shall:

i. Provide coordination of the construction performed by Design/Builder' s subcontractors, with the construction work of separate contractors retained by Owners;

ii. Subject to paragraph 2.1(b) make revisions of the construction, drawings, specifications or other documents when such revisions are consistent with written approvals or instructions previously given, are required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents;


5 iii. Make investigations including surveys, valuations, inventories or detailed appraisals or existing facilities, and services required in connection with the Project;

iv. Prepare a set of reproducible record drawings showing significant changes in the Work made during construction based on marked-up prints, drawings and other data;

v. Provide design services until the Project is 100% complete;

vi. Prepare to serve or serving as an expert witness in connection with any public hearing, arbitration proceeding or legal proceeding with regard to the work contemplated by this Agreement not including any dispute between the parties hereto and at the sole cost and expense of Owner;

vii. Provide services for architectural, structural, mechanical electrical engineering services for the Project and any other engineering services that may be required to produce the project; and

viii. Provide the insurance for the Project as provided in Exhibit F.

i. Design/builder shall advise the Owner with respect to the following:

i. the availability of labor, materials and supplies;

ii. elimination of possible conflicts and/or overlapping jurisdictions among the various trades or overlapping responsibilities among Trade Contractors; iii. conflicts and omissions;

iv. variations from customary construction practices and methods which, may cause difficulties or occasion delay in the performance of the Work; v. conduct of construction operations under good construction practices;

vi. unit prices and alternates;

vii. required temporary and Project support facilities;

viii. construction detailing; and

ix. construction economies through alternative methods, materials, or concepts, consistent with Owner' s requirements and sound construction practice;

6 2.1.1 Owner' s Responsibilities During Design

a. The Owner in conjunction with Design/Builder shall provide full information regarding requirements for the Project including a program, which shall set forth the Owner' s design objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability, special equipment and systems and site requirements;

b. The Owner shall furnish required information and services and shall render approvals and decisions as expeditiously as necessary for the orderly progress of the services and of the Work; and

c. Any review required of the Owner shall be promptly addressed and any approval required to be given by Owner shall not be unreasonably withheld. Any documents delivered by Design/Builder to Owner for Owner' s review and approval shall be deemed approved if, within fifteen (15) days from the delivery of said documents, Owner has not made a written comment in regard thereto. 2.1.2 Ownership of Design Documents

a. Any drawings and specifications and other Materials, including any and all documentation in electronic form (i.e. CADD) prepared by Design/Builder shall be the property of the Owner whether the project for which they are made is executed or not. If the Drawings and Specifications are used by the Owner, for additions to this Project, or for completion of this Project by others, Design/Builder is to receive notification and shall not be held responsible for any use of these drawings which is beyond the scope of this Agreement or any modifications of these drawings by others or services covered under this Agreement performed by others to complete this Project; and

b. Submission or distribution to met official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of Design/Builder' s rights.

2.2 Construction Phase

Design/Builder agrees that during the construction phase (the " Construction Phase" ) of the Work, which Construction Phase shall commence on the date of commencement of construction of any portion of the Work and shall terminate on the date of Final Completion of the Work, which it shall, at a minimum, perform the following services: a.

establish procedures for the orderly and expeditious performance and Final Completion of the Work in accordance with the terms of this Agreement; perform, or require to be performed, all Work necessary in connection therewith; establish


7

procedures for administration of Trade Contracts; and maintain coordination among Trade Contractors; b. prepare Project site organization and lines of authority in order to carry out the Work on a coordinated basis; c. organize staff and assign personnel to various areas to provide a positive and efficient means by which the Work may be controlled, coordinated and expedited;

d. submit a Project Schedule. All modifications to the Progress Schedule must be coordinated with Owner. The Progress Schedule shall also (i) set forth a construction time schedule which identifies all major and critical components of the Project and the Work, including Engineer' s preparation of design documents, all major and critical design details and all matters relating to Trade Contractors and Trade Contract awards, and which identifies Owner' s responsibilities, if any, with respect to the design documents, and (ii) from and after the date that the same is available, incorporate the information described in this Article 2.2 Design/Builder agrees that the Progress Schedule shall not be amended, modified or extended without Owner' s prior written approval;

e. require submission of, and review, progress schedules of Trade Contractors and make adjustments to such schedules as appropriate in an effort to continue the expeditious Final Completion of the Work within the time periods set forth in the Progress Schedule;

f. except as otherwise provided in Article XXIII hereof, obtain Owner' s written approval of any changes in the Work and any approvals or other documents necessary in connection therewith;

g. conduct necessary job and coordination meetings, which job meetings shall be held not less than twice monthly and which coordination meetings shall be held as required, and attend all such meetings;

h. prepare detailed written agendas and minutes of each job and coordination meeting and furnish copies thereof to Owner and other Consultants designated by Owner; minutes must be provided within five (5) days after each meeting;

i.

prepare and maintain, on a current basis, an on-Project Site record keeping system, including but not limited to, records of all changes in the Work necessitated by reason of Change Orders, Emergency Change orders and Field Orders, Work progress schedules, shop drawing logs, material lists, records of all pertinent communications, equipment and material deliveries, visitors, special occurrences, and other Work related information and make such on-Project Site records available for inspection to Owner (and, if required by Owner' s Consultants). In addition,


8

copies of all correspondence pertaining to the Work shall be maintained by Design/Builder and shall be made available at all times to Owner;

j. submit to Owner each month a " Job Progress Report" which shall describe the following: (i) the financial condition of the Work, including Trade Contract awards, Project modifications, anticipated cost and Change Order summary; (ii) construction status, including updated Progress Schedules with projected critical dates compared with original milestone dates, status of job progress to date, current Work activity, projected Work activity for the following month, job photos and status of materials required; and (iii) drawing status, including status of drawing schedule, status of shop drawings, shop drawing schedule, status of coordination drawings, coordination drawing routing schedule, and coordination meeting minutes;

k. assemble and review all required brochures, guarantees, certificates of compliance and other agreements and instruments; l. Design/Builder acknowledges and agrees that as part of its obligations under this Agreement, Design/Builder, its Trade Contractors and Contractor are to prepare and submit shop drawings and other submissions, conduct coordination meetings and prepare coordination drawings for the purpose of coordinating the work required of Design/Builder and its Trade Contractors. This process, in part, is intended to recognize and resolve design conflicts in advance of fabrication and installation of the various components of the Work. Design/Builder agrees that it shall expeditiously and thoroughly prepare and submit shop drawings and conduct and conclude the coordination effort at the earliest possible time so as to facilitate the recognition and resolution of conflicts, including errors in the Construction Documents, such that any adverse effects on the progress of the Work are avoided to the fullest extent reasonably possible. Similarly, the proposal of substitutions in accordance with Article XXII of this Agreement shall be conducted at the earliest possible time. Nothing herein shall relieve Design/Builder from its own failure to comply with its obligations with respect to shop drawings, samples and catalog cuts;

m. maintain at the Project Site, on a current basis and make available to Owner, copies of any records with respect to Trade Contracts, shop drawings, samples, operating manuals, the Construction Documents, equipment and any and all other related documents and any revisions to any of the foregoing which may arise out of, or be related to, this Agreement; maintain and provide, and make available to Owner, Design Consultants, Owner' s Consultants and Contractor, three (3) sets of progress photos taken on a monthly basis according to a plan, as previously approved by Owner; and at Owner' s request, upon final completion of the Work or any phase thereof, deliver to Owner copies of a complete set of " as-built drawings" , showing the Work, as actually completed, in such form, content and detail and, at Owner' s option, in such electronic medium, as Owner may specify, together with copies of all operating instructions and maintenance manuals (bound and indexed);


9 n. establish and coordinate with Owner a system for processing, expediting and administering all Trade Contracts for the purchase of materials, supplies and equipment. Manage the procurement and delivery of critical materials to the Project Site and coordinate the deliveries with the progress of the Work;

o. advise owner that material and equipment is currently available to accomplish the Work and immediately alert Owner and Contractor if it believes that job progress will be adversely affected by circumstances related to the availability of material or equipment;

p. notify Owner of the progress of the Work, and advise Owner, in accordance with the provisions of Article VII hereof, of any delays or serious potential delays which may affect Final Completion of the Work and of Design/Builder' s recommendations regarding such delays;

q. inspect, manage and coordinate the work of all Trade Contractors, enforce the terms of their respective Trade Contracts and enforce strict discipline and good order among all Trade Contractors in an effort to see that the Work is performed in accordance with the terms of such Trade Contracts, the Contract Documents, recognized trade standards and the applicable laws, rules and regulations of all Government Authorities and endeavor to guard Owner against any delays, increased costs and defects and deficiencies in the Work. The inspection required herein shall not include controlled or technical inspections. In connection with the foregoing, Design/Builder shall (i) require any Trade Contractor to stop the performance of any Work which Design/Builder observes or should have observed is not in compliance with the requirements of its respective Trade Contract, the Contract Documents, recognized trade standards or the applicable laws, rules and regulations of any governmental authorities having jurisdiction over the Work; (ii) reject and require to be corrected, those portions of the Work which Design/Builder discovers or should have discovered does not conform to the requirements of the applicable Trade Contract, the Contract Documents, recognized trade standards or the applicable laws, rules and regulations of any governmental authorities having jurisdiction over the Work; (iii) inspect all materials, supplies and equipment delivered or installed in connection with, or pursuant to, any Trade Contract in an effort to determine that the same are in compliance with the requirements of the applicable Trade Contract, the Contract Documents, recognized trade standards and the laws, rules and regulations of all governmental authorities having jurisdiction over the Work and reject and require replacement of all non-conforming materials, supplies and equipment; and (iv) not employ on the Work any person or Trade Contractor unfit for or unskilled in the assigned task and, subject to Owner' s prior approval, remove such unfit or unskilled employee or such Trade Contractor from the Project Site;


10 r. arrange for all cutting, fitting or patching that may be required to complete the Work or to make its several parts fit together properly; s. use best efforts to resolve disputes between Trade Contractors relative to the performance of their work or the furnishing of materials, supplies or equipment in connection with the Work;

t. arrange for the storage and inspection of all materials, supplies, systems and equipment p ...