FIXED PRICE CONTRACT

 

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                                                                   EXHIBIT 10.21

 

 

                              FIXED PRICE CONTRACT

 

CONTRACTOR: Trane, a Division of American Standard, Inc. CONTRACT DATE: December

            17, 2003

 

PROJECT:   Advance Neuromodulation Systems Building Automation System

 

CONTRACT TIME: All Work must be finally complete on or before April 15, 2004

 

CONTRACT SUM:   $ $208,457.00

 

PAYMENT WITHIN 30 calendar days after Final Completion

 

This Fixed Price Contract ("Contract") is executed to be effective on the date

set forth above ("Contract Date"). The parties to the Contract are:

 

         Advanced Neuromodulation Systems, Inc.                         ("Owner")

         6501 Windcrest Drive, Suite 100

         Plano, Texas 75024

         Owner's Representative: Myron Albert

         Telephone: (972) 309-8502   FAX: (972) 309-8150

         E-mail address:   m.albert@ans-medical.com

 

         Trane, a Division of American Standard, Inc.              ("Contractor")

         1400 Valwood Parkway, Suite 100

         Carrollton, TX   75006

         Contractor's Representative: Chris Koutalidis

         Telephone: (972) 406-6000FAX:   (972) 243-1398

         E-mail address:   cwkoutalidis@trane.com

 

1.        Contractor Obligations. In connection with the project described above

("Project"), Contractor shall furnish all materials, supplies, equipment,

machinery, fixtures, tools, fees, approvals, permits, governmental fees,

licenses, inspections, insurance, labor, and supervision necessary to perform

the work ("Work") described on Exhibit A. Contractor represents and warrants

that it is technically, financially, and legally ready, willing, and able to

perform the Work hereunder and that it is familiar with and knowledgeable about

the applicable laws and regulations, and government agency policy documents to

the extent necessary to carry out its duties in a professional, complete, and

compliant manner. Contractor further represents and warrants that Work performed

by or delivered through Contractor shall be in accordance with the generally

accepted standards of the profession at the time of performance and shall

conform to the provisions of this Contract. Contractor shall replace any part of

the Work that fails to comply with this Contract if such failure appears before

Final Completion (as defined in Section 3 below). Additionally, Contractor shall

remedy or replace any defects in the Work that appear within one year after

Final Completion. All subcontractors must be approved by Owner.

 

          1.1       Independent Contractor. Contractor is an independent

         contractor and not an employee or agent of the Owner. Accordingly,

         neither Contractor nor any of Contractor's representatives shall hold

         themselves out as, or claim to be acting in the capacity of, an

         employee, agent, partner or joint venturer of Owner.

 

 

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         1.2       Changes. From time to time, Owner may authorize changes in the

         Work, issue additional instructions, require additional Work or direct

         the omission of Work previously ordered. Only those changes in the Work

         that are approved on a written change order, shall be binding on Owner.

 

         1.3       Field Work - Contractor warrants that (a) field-related Work,

         labor and materials delivered by or through Contractor hereunder shall

         be performed, installed, completed and constructed in accordance with

         this Contract and all other documents provided to Contractor by Owner

         or Owner's engineer and performed in a safe, good and workmanlike

         manner, free from defects, and that any equipment utilized in

         connection with performance hereunder shall be in proper working order,

          and (b) any materials (provided by or through Contractor) incorporated

         in the Work shall be properly cleaned and decontaminated, and of

         generally accepted quality as required for the specific intended

         purpose (unless otherwise expressly consented to in advance and in

         writing by Owner).

 

         1.4       Compliance with Laws - Contractor warrants for itself and its

         officers, directors, employees, agents, subcontractors, and suppliers,

         at any tier, and their respective agents and employees, compliance with

         all applicable Federal, State, and local laws and regulations, as well

         as, but not limited to, permits and licenses concerning health, safety,

         and the protection of the environment and those concerning Equal

         Employment Discrimination Resulting from Age, and Utilization of

         Disadvantaged and Minority Business Enterprises (including, without

         limitation, the law commonly known as the Americans With Disabilities

         Act of 1990 and the Texas Accessibility Standards of the Architectural

         Barriers Act (Art. 9102, Texas Civil Statutes), and the regulations

         related thereto, as the foregoing may be amended from time to time).

         Without limiting the foregoing, Contractor shall also obtain all

         permits required to perform the Work in accordance with all laws and

         regulations.

 

         1.5       Patents - Contractor warrants that any Work furnished by or

         through Contractor shall be free of any claim of patent infringement.

 

         1.6       Warranty. Contractor warrants that, for a period of one year

         from the date of substantial completion (the "Warranty Period"),

         Contractor equipment installed hereunder and Work (i) shall be free

         from defects in material, manufacture, and workmanship and (ii) shall

         have the capacities and ratings set forth in Contractor's catalogs and

         bulletins. Substantial completion shall be the date that the Work is

         sufficiently complete so that Customer can utilize the Work for its

         intended use. If a defect is discovered within the Warranty Period,

         Contractor will correct the defect or furnish replacement equipment

          (or, at its option, parts therefor) and labor associated with the

         replacement of parts or equipment not conforming to this warranty.

         Liability shall be limited to Contractor's cost to correct and replace

         the defective Work and equipment. Contractor's warranties expressly

         exclude any remedy for damage or defect caused by abuse, modifications

         or repairs not performed by Contractor, improper operation, or normal

         wear and tear under normal usage. Contractor shall not be obligated to

         pay for the cost of lost refrigerant. THE WARRANTY AND LIABILITY SET

         FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES AND

         LIABILITIES, WHETHER IN CONTRACT OR IN NEGLIGENCE, EXPRESS OR IMPLIED,

         IN LAW OR IN FACT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND

         FITNESS FOR A PARTICULAR USE OR FITNESS FOR A

 

 

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         PARTICULAR PURPOSE. NO REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR

         FITNESS OF PURPOSE IS MADE REGARDING PREVENTION BY THE SCOPE OF

         SERVICES, OR ANY COMPONENT THEREOF, OF MOLD, FUNGUS, BACTERIA,

         MICROBIAL GROWTH, OR ANY OTHER CONTAMINATES. CONTRACTOR SPECIFICALLY

         DISCLAIMS ANY LIABILITY IF THE SCOPE OF SERVICES OR ANY COMPONENT

         THEREOF IS USED TO PREVENT OR INHIBIT THE GROWTH OF SUCH MATERIALS.

 

2.        Contract Sum. Subject to the conditions set forth in this Contract, as

sole consideration for the proper and complete performance of the Work, Owner

agrees to pay Contractor the amounts set forth above and listed on Exhibit A,

("Contract Sum") . Contractor may request interim payments of the Contract Sum

as described in Section 4 below. Owner agrees to pay the Contract Sum (or the

unpaid balance of the Contract Sum if Owner has made any interim payments)

within 30-days following Final Completion.

 

3.        Contract Time. Unless otherwise instructed by Owner, Contractor shall

begin performance of the Work within three calendar days after the Contract

Date, and shall thereafter diligently proceed with and finally complete the Work

such that the Work is finally complete no later than April 15, 2004 (the

"Contract Time"). The Work shall be considered finally complete ("Final

Completion") when the Owner determines that all of the Work described on Exhibit

A, and any Work required by change order, has been fully (as opposed to

substantially) completed, including all punch list items, in accordance with

this Contract. If, after the Work has begun, any unexpected conditions are

encountered that will delay completion of the Work and which conditions cannot

be mitigated through the reasonable efforts of Contractor, Contractor shall give

Owner immediate written notice of such conditions, and if Owner approves same as

a permissible delay (which approval shall not be unreasonably withheld)

Contractor's sole and exclusive remedy shall be an equitable adjustment in the

Contract Time to the extent approved by Owner (unless such conditions are the

result of Owner's intentional and unjustifiable interference with the Work) but

there shall be no adjustment in the Contract Sum.

 

4.        Payment Schedule. Contractor shall submit an application for payment in

the form set forth in Exhibit B to Owner by the 30th day of the month for Work

performed through the 25th day of the current month. Subject to terms of this

Contract, Contractor shall receive payment on or about the 25th day of the

following month. Included with the submission of each Application and

Certificate for Payment, beginning with the second request for payment,

Contractor shall furnish to Owner a Contractor's "Partial Waiver of Liens" in

the form set forth in Exhibit C and a certified statement accounting for the

disbursement of funds received from Owner. Such statement shall itemize all

disbursements to subcontractors and vendors. As a condition precedent to Owner's

obligation to make any payment to Contractor, Owner will require that a Partial

Waiver of Liens or a "Final Waiver of Liens" in the form set forth in Exhibit D,

whichever is appropriate to the circumstances, be executed by Contractor and any

subcontractors. In addition, if Owner has reason to believe that Contractor is

not paying (or may not be able to pay) any of its subcontractors, Owner reserves

the right to make payments jointly to Contractor and such subcontractors to the

extent necessary to pay fully such subcontractors. Notwithstanding the

foregoing, however, Owner shall not be obligated to make any payments to

Contractor for Work which is defective or which is not performed in accordance

with this Contract. Owner further reserves the right to retain 10% of the

Contract Sum (and 10% of any interim payments) until 30-days following Final

Completion. Pending resolution of any dispute arising under this Contract (other

than a termination hereof), Contractor may not cease working and shall proceed

diligently with the performance of this Contract, and Owner shall continue to

make payments that are not in dispute in accordance with this Contract.

 

 

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5.        Insurance. Contractor shall satisfy the insurance obligations described

on Exhibit D. The cost of this insurance shall be at no cost to Owner.

 

6.        Contractor's Remedy. Contractor shall give written notice to Owner of

any alleged breach by Owner, and Owner shall have a reasonable time within which

to cure any alleged breach. If Owner is in breach of this Contract, Contractor's

exclusive remedies shall be (a) a reasonable extension of the Contract Time and

(b) a reasonable increase in the Contract Sum, which increase shall be limited

to the actual, out-of-pocket costs and expenses incurred by Contractor as a

direct result of Owner's breach.

 

7.        Indemnification. Contractor and Owner shall indemnify and hold each

other harmless from any and all claims, actions, costs, expenses, damages and

liabilities, including reasonable attorneys' fees, resulting from death or

bodily injury or damage to real or personal property, to the extent caused by

the negligence or misconduct of their respective employees or other authorized

agents in connection with their activities within the scope of this Contract.

Neither party shall indemnify the other against claims, damages, expenses or

liabilities to the extent attributable to the negligence or misconduct of the

other party. If the parties are both at fault, the obligation to indemnify shall

be proportional to their relative fault. The duty to indemnify will continue in

full force and effect, notwithstanding the expiration or early termination

hereof, with respect to any claims based on facts or conditions that occurred

prior to expiration or termination. NOTWITHSTANDING ANY CONTRARY PROVISION,

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL,

CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOST REVENUE OR PROFITS), OR

PUNITIVE DAMAGES.

 

8.        Safety. Contractor and its employees shall at all times comply with any

and all safety programs in effect on the Project.

 

9.        Hazardous Substances.

 

         9.1       "Hazardous Substances" means any substance defined in or

         included under or regulated by any Federal, State, or local laws,

         rules, ordinances or regulations pertaining to environmental

          regulation, contamination, clean-up or disclosure ("Environmental

         Laws"). Contractor shall not transport to, use, generate, dispose of,

         or install any Hazardous Substances on any property on which the Work

         is performed in violation of Environmental Laws. In performing the

         Work, Contractor shall not cause or permit any release of Hazardous

         Substances into, or contamination of, the environment, including the

         soil, the atmosphere, any water course or ground water in violation of

         Environmental Laws. If Contractor encounters any Hazardous Substances,

         Contractor shall immediately notify Owner and shall immediately stop

         Work until further written authorization from Owner. Contractor shall

         be required to resume performance of the Work in the affected area only

         in the absence of Hazardous Materials or when the affected area has

         been rendered harmless.

 

         9.2       Owner warrants and represents that it is not aware of any

         Hazardous Materials on the Work site that will affect Contractor's Work

         and Owner has disclosed to Contractor the existence and location of any

         Hazardous Materials in all areas within which Contractor will be

         performing the Work. As between Owner and Contractor, Owner shall be

         responsible for any claims arising out of or relating to any Hazardous

         Materials on or about the Work site, not brought onto the Work site by

         Contractor.

 

10.       Assignment. Contractor shall not assign this Contract (or any of its

rights, duties or remedies under this Contract) without the prior written

consent of Owner. Owner may, however, assign this

 

 

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Contract (and any of its rights, duties or remedies under this Contract) to any

person or entity without notice to Contractor.

 

11.       Termi