<PAGE>
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.
Electronic
Format A101/CMa-1992
1
<PAGE>
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:
<TABLE>
<S>
<C>
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
</TABLE>
, 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.
Electronic Format A101/CMa-1992
2
<PAGE>
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.
Electronic Format A101/CMa-1992
3
<PAGE>
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
4
<PAGE>
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 quantities of
equipment rented shall be subject to
the Owner's prior approval. Rental charges
shall be consistent with those
generally prevailing in the location of the
Project. (REFERENCE EXHIBIT " F" FOR
CONTRACTOR'S NOT-TO-EXCEED RATES).
4.4.5.3 Costs of removal of debris from
the site.
4.4.5.4 Costs of document reproductions,
facsimile transmissions and
long-distance telephone calls, postage and
parcel delivery charges, telephone
service at the site, cellular phones
utilized by employees stationed full time
at the site, and reasonable petty cash
expenses of the site office.
4.4.5.5 That portion of the reasonable
expenses of the Contractor's personnel
incurred while traveling out of town in
discharge of duties connected with the
Work. All travel charges must be approved
in writing by Owner in advance of
incurring such costs.
4.4.5.6 Costs of materials and equipment
suitably stored off the site at a
mutually acceptable location, if approved
in advance by the Owner.
Savings or incentives paid for performance
by materials or equipment suppliers
shall be subject to the written approval of
the Owner, obtained in advance of
incurring such costs, and shall be so
stipulated in each agreement with
material or
(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
5
<PAGE>
equipment suppliers.
4.4.5.7 Costs of all temporary jobsite
utilities.
4.4.6 MISCELLANEOUS
COSTS
4.4.6.1 That portion of insurace and bond
premiums that: Contractor is
obligated to secure and maintain under the
terms of the Contract Documents.
4.4.6.1.1 Subcontractor default insurance
premiums directly attributable to this
Agreement, limited to a maximum cost of
$25,000.
4.4.6.2 Sales, use or similar taxes
imposed by a governmental authority that
are related to the Work.
4.4.6.3 Fees and assessments for the
building permit and for other permits,
licenses and inspections for which the
Contractor is required by the Contract
Documents to pay.
4.4.6.4 Fees of laboratories for tests
required by the Contract Documents,
except those related to defective or
nonconforming Work for which reimbursement
is excluded by Subparagraph 13.5.3 of AIA
Document A201/CMa-1992 or other
provisions of the Contract Documents, and
which do not fall within the scope of
Subparagraph 4.4.7.3.
4.4.6.5 Royalties and license fees paid
for the use of a particular design,
process or product required by the Contract
Documents: the cost of defending
suits or claims for infringement of patent
right arising from such requirement
of the Contract Documents; and payments
made in accordance with legal judgments
against the Contractor resulting from such
suits or claims and payments of
settlements made with the Ow
