Exhibit 10.1
AMENDMENT NO. 2 TO STANDARD
FORM OF AGREEMENT BETWEEN
OWNER AND CONSTRUCTION MANAGER
This Amendment No. 2
(“Amendment”) to Standard form of Agreement between
Owner and Construction Manager is entered into this 29th day of
May, 2009 by and between United Therapeutics Corporation
(“Owner”) and The Whiting-Turner Contracting Company
(“Construction Manager”).
WHEREAS , Owner and Construction Manager entered into a
Standard form of Agreement between Owner and Construction Manager
dated as of February 15, 2007 (together with all exhibits, the
“Contract”) pursuant to which the Construction Manager
agreed to provide certain construction services relating to
construction of a new Class A headquarters building for use as
office space and fill-finish facilities and ancillary facilities
located in Silver Spring, Maryland (the “Project”);
and
WHEREAS , pursuant to Amendment No. 1 dated as of
11/21/08, the Owner and the Construction Manager agreed upon the
Guaranteed Maximum Price and other terms and conditions associated
therewith as contemplated by Section 2.2.3 of the Agreement
portion of the Contract.
WHEREAS , Owner and Construction Manager desire to amend
the Contract to modify certain terms therein, specifically, among
other things, to convert the Guaranteed Maximum Price (as defined
in the Contract) into a Lump Sum, confirm the date of Substantial
Completion and modify the scope of Work.
NOW, THEREFORE , in consideration of the Recitals and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1.
Conversion of Guaranteed Maximum Price into Lump
Sum
The Guaranteed Maximum Price currently in effect
under the Contact is hereby converted to the lump sum amount of
Sixty Six Million Dollars ($66,000,000.00) (the “Contract
Sum”), of which $33,361,617.00 has been previously invoiced
by the Construction Manager thru 4/30/09 by the Owner (the
“Contract Sum”). All references in the Contract to
“Guaranteed Maximum Price” or “Contract
Sum” shall hereinafter be deemed to refer to the lump sum
amount stated above, as such amount may be adjusted in the future
in accordance with the terms of the Contract Documents. The
Schedule of Values reflecting the new Contract Sum is attached
hereto as Exhibit A. Notwithstanding anything in the
Contract to the contrary, the Construction Manager shall continue
to be obligated to provide to the Owner and its accountants any and
all cost segregation data required for tax purposes.
2.
Substantial Completion Date
The date of Substantial Completion upon which
the Contract Sum stated in Section 1 and the scope of Work
stated in Section 3 are based is November 16, 2009; such
date may be adjusted in the future in accordance with the terms of
the Contract Documents. The Project Schedule reflecting this
date of Substantial Completion is attached hereto as
Exhibit B.
3.
Scope of Work
The scope of Work on which the Contract Sum set
forth in Section 1 and the date of Substantial Completion set
forth in Section 2 are based is the scope of Work as set forth
in Amendment No. 1, as modified by (a) the changes in
scope listed on Exhibit C attached hereto and (b) the
assumptions, qualifications and exclusions listed on
Exhibit D. The parties acknowledge and agree that all
time and compensation associated with the changes in scope listed
on Exhibit C have already been reflected in the Contract Sum
set forth in Section 1 and the date of Substantial Completion
set forth in Section 2, and the Construction Manager hereby
waives any additional compensation or extensions of time on account
of the items listed in Exhibit C.
4.
Modification of Certain Terms and Conditions of Agreement portion
of Contract
Attached hereto as Exhibit E are certain
provisions of the Agreement and General Conditions portions of the
Contract that are modified as a result of this
Amendment.
5.
Full Force and Effect
Except as amended hereby, the Contract shall
remain in full force and effect and unmodified.
IN WITNESS WHEREOF , the parties hereto have caused this Amendment
to be executed by their duly authorized representatives on the day
and year above written.
OWNER:
UNITED THERAPEUTICS CORPORATION
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By:
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/s/ John Ferrari
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Name:
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John M. Ferrari
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Title:
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Chief Financial Officer
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CONSTRUCTION MANAGER:
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THE WHITING-TURNER CONTRACTING
COMPANY
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By:
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/s/ Timothy Regan
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Name:
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Timothy J. Regan
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Title:
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Senior Vice Presdient
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Exhibit E
Specific Changes to
Contract
The following sections replace the corresponding
sections in the Agreement and General Conditions:
Agreement
§ 4.1.1 For the services described in Sections 2.1 and
2.2, the Construction Manager’s compensation shall be
calculated as follows:
See Exhibit G. In the event the
Contract is terminated prior to issuance of the Notice to Proceed,
the compensation set forth in Exhibit G for Preconstruction
Services shall be the total amount payable by the Owner to the
Construction Manager on account of Preconstruction Services
(excepting payment for construction services authorized in writing
prior to issuance of the Notice to Proceed). In the event the
Notice to Proceed is issued, all amounts paid for Preconstruction
Services shall be deemed to be part of the Contract Sum.
§ 5.1
COMPENSATION
§ 5.1.1 The Owner shall pay the Contractor the Contract
Sum in current funds for the Contractor’s performance of the
Contract. The Contract Sum shall be as set forth in Section 1
of Amendment No. 2, subject to additions and deductions as
provided in the Contract Documents.
§ 5.2 Paragraphs deleted
§ 5.3
CHANGES IN THE WORK
§ 5.3.1 Adjustments to the Contract Sum on account of
changes in the Work may be determined by the applicable methods
listed in Section 7.3.3 of the General Conditions.
§ 5.3.2 Adjustments to subcontracts awarded with the
Owner’s prior written consent on the basis of cost plus a fee
shall be calculated in accordance with the terms of those
subcontracts. The Construction Manager hereby agrees that for
changes in the Work performed by a subcontractor, (A) the
payment to the subcontractor shall be equal to (i) the actual
cost incurred in performing such changed work; (ii) a markup
of 10% of such actual cost for overhead; and (iii) fee of 5%
of actual cost. Notwithstanding the foregoing, the total
amount payable to subcontractors of every tier on account of
overhead and fee for a change to the Work shall not exceed
25%. In addition, the Construction Manager shall be entitled
to Construction Manager’s Fee equal to the percentage stated
in Exhibit G, based on the total amount payable to the
subcontractor; provided, however, that the Construction Manager
shall not be entitled to Construction Manager’s Fee on the
first $500,000 of Change Orders. There shall be no reduction
in Construction Manager’s Fee for deductive Change
Orders. See Annex 2 to Exhibit G for examples of how
markups and fees are calculated.
§ 5.3.3 Paragraphs deleted
ARTICLE 6 Paragraphs deleted
ARTICLE 7 CONSTRUCTION PHASE
§ 7.1
PROGRESS PAYMENTS
§ 7.1.1 Based upon Applications for Payment submitted to
the Project Manager by the Construction Manager and approved by the
Owner and the Project Manager, the Owner shall make progress
payments on account of the Contract Sum to the Construction Manager
as provided below and elsewhere in the Contract
Documents.
§ 7.1.2 The period covered by each Application for
Payment shall be one calendar month ending on the last day of the
month.
On or before the 25th calendar day
of each month (or in the event such day is a holiday or weekend
day, the preceding business day) the Owner, the Project Manager and
the Construction Manager (and the Architect and/or Fill/Finish A/E,
if requested by the Owner) shall meet to review a preliminary draft
of such Application for Payment (a “Pencil Draw”),
prepared by the Construction Manager. Within three
(3) days after the meeting described in the previous sentence,
the Construction Manager shall (a) revise the Pencil Draw in
accordance with any objection or recommendations of either Owner,
or Project Manager that is consistent with the requirements for the
Contract Documents, and (b) re-submit the revised Pencil Draw
to the Owner and the Project Manager as the final Application for
Payment. Such Pencil Draw and subsequent Application for
Payment shall incl
