<PAGE>
EXHIBIT 10.25
AIA Document B801/CMa - Electronic Format
Standard Form of Agreement Between
Owner and Construction Manager
where the Construction Manager is NOT a Constructor
1992 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 B141/CMa, A101/CMa and
A201/CMa.
Copyright 1973, 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 subject the
violator to legal prosecution.
AGREEMENT
made as of the Fifteen day of October in
the year of Two Thousand Two
(In words, indicate day, month and
year)
BETWEEN the Owner:
(Name and address)
Advanced Neuromodulation Systems, Inc.
6501 Windcrest Drive, Suite #100
Plano, TX 75024
and the Construction Manager:
(Name and address)
Koll Development Company
8411 Preston Rd., Suite #700
Dallas, TX 75225
for the following Project:
(Include detailed description of Project,
location, address and scope.)
Advanced Neuromodulation Systems, Inc.
at Legacy Business Park
Preston Rd. at Tennyson Drive
Plano, TX 75024
The Architect is:
(Name and address)
Good, Fulton & Farrell Architects
2808 Fairmount Street, Suite #300
Dallas, TX 75201
The Owner and Construction Manager agree as
set forth below.
Terms and Conditions
of Agreement Between Owner and Construction Manager
ARTICLE 1
CONSTRUCTION MANAGER'S RESPONSIBILITIES
1.1
CONSTRUCTION MANAGER'S SERVICES
(C)1992 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT
B801/CMa - OWNER-CONSTRUCTION MANAGER
AGREEMENT - 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, expiration as noted below,
expiration as noted below. User Document:
b801 dev agr apr uyya -- 4/9/2003. AIA
License Number 1768076504, which expires on
10/30/2003.
Electronic Format B801/CMa-1992
1
<PAGE>
1.1.1 The Construction
Manager's services consist of those services performed
by the Construction Manager, Construction
Manager's employees and Construction
Manager's consultants as enumerated in
Articles 2 and 3 of this Agreement and
any other services included in Article
14.
1.1.2 The Construction
Manager's services shall be provided in conjunction
with the services of an Architect as
described in the edition of AIA Document
B141/CMa, Standard Form of Agreement
Between Owner and Architect, Construction
Manager-Adviser Edition, current as of the
dale of this Agreement.
1.1.3 The Construction
Manager shall provide sufficient organization,
personnel and management to carry out the
requirements of this Agreement in an
expeditious and economical manner
consistent with the interests of the Owner.
1.1.4 The services covered
by this Agreement are subject to the lime
limitations contained in Subparagraph
13.5.1.
ARTICLE 2
SCOPE OF CONSTRUCTION MANAGER'S BASIC SERVICES
2.1
DEFINITION
2.1.1 The Construction
Manager's Basic Services consist of those described in
Paragraphs 2.2 and 2.3 and any other
services identified in Article 14 as part
of Basic Services - including those further
described in Exhibit A - CM Services
Responsibility Matrix.
2.2
PRE-CONSTRUCTION PHASE
2.2.1 The Construction
Manager shall review the program 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 Construction Manager
shall provide a preliminary evaluation of the
Owner's program, schedule and construction
budget requirements, each in terms of
the other.
2.2.3 Based on early
schematic designs and other design criteria prepared by
the Architect, the Construction Manager
shall prepare preliminary estimates of
Construction Cost for program requirements
using area, volume or similar
conceptual estimating techniques. The
Construction Manager shall provide cost
evaluations of alternative materials and
systems.
2.2.4 The Construction
Manager shall expeditiously review design documents
during their development and advise on
proposed site use and improvements,
selection of materials, building systems
and equipment, and methods of Project
delivery. The Construction Manager shall
provide recommendations on relative
feasibility of construction methods,
availability of materials and labor, time
requirements for procurement, installation
and construction, and factors related
to construction cost including, but not
limited to, costs of alternative designs
or materials, preliminary budgets, and
possible economies.
2.2.5 The Construction
Manager shall prepare and periodically update a
Project Schedule for the Architect's review
and the Owner's acceptance. The
Construction Manager shall obtain the
Architect's approval for the portion of
the preliminary project schedule relating
to the performance of the Architect's
services. In the Project Schedule, the
Construction Manager shall coordinate and
integrate the Construction Manager's
services, the Architect's services and the
Owner's responsibilities with anticipated
construction schedules, highlighting
critical and long-lead-time items.
2.2.6 As the Architect
progress with the preparation of the Schematic, Design
Development and Construction Documents, the
Construction Manager shall prepare
and update, at appropriate intervals agreed
to by the Owner, Construction
Manager and Architect, estimates of
Construction Cost of increasing detail and
refinement. The estimated cost of each
Contract shall be indicated with
supporting detail. Such estimates shall be
provided for the Architect's review
and the Owner's approval. The Construction
Manager shall advise the Owner and
Architect if it appears that the
Construction Cost may exceed the latest
approved Project budget and make
recommendations for corrective action.
2.2.7 The Construction
Manager shall consult with the Owner and Architect
regarding the Construction Documents and
make recommendations whenever design
details adversely affect constructibility,
cost or schedules.
2.2.8 The Construction
Manager shall provide recommendations and information
to the Owner and Architect regarding the
assignment of responsibilities for
temporary Project facilities and equipment,
materials and services for common
use of the Contractors. The Construction
Manager shall verify that such
requirements and assignment of
responsibilities are included in the proposed
Contract Documents.
2.2.9 The Construction
Manager shall provide recommendations and information
to the Owner regarding the allocation of
responsibilities for safety programs
among the Contractors.
2.2.10 The Construction Manager
shall advise on the division of the Project
into individual Contracts for various
categories of Work, including the method
to be used for selecting Contractors and
awarding Contracts. If multiple
Contracts are to be awarded, the
Construction Manager shall review the
Construction Documents and make
recommendations as required to provide that (1)
the Work of the Contractors is coordinated,
(2) all requirements for the Project
have been assigned to the appropriate
Contract, (3) the likelihood of
jurisdictional disputes has been minimized,
and (4) proper coordination has been
provided for phased construction.
(C)1992 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W.,
WASHINGTON, D.C- 20006-5292. AIA DOCUMENT
B801/CMa - OWNER-CONSTRUCTION MANAGER
AGREEMENT - 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, expiration as noted below,
expiration as noted below. User Document:
b801 dev agr apr uyya - 4/9/2003. AIA
License Number 1768076504, which expires on
10/30/2003.
Electronic Format B801/CMa-1992
2
<PAGE>
2.2.11 The Construction Manager
shall prepare a Project construction schedule
providing for the components of the Work,
including phasing of construction,
times of commencement and completion
required of each Contractor, ordering and
delivery of products requiring long lead
time, and the occupancy requirements of
the Owner. The Construction Manager shall
provide the current Project
construction schedule for each set of
bidding documents.
2.2.12 The Construction Manager
shall expedite and coordinate the ordering and
delivery of materials requiring long lead
time- through each Contractor.
2.2.13 The Construction Manager
shall assist the Owner in selecting, retaining
and coordinating the professional services
of surveyors, special consultants and
testing laboratories required for the
Project.
2.2.14 The Construction Manager
shall provide an analysis of the types and
quantities of labor required for the
Project and review the availability of
appropriate categories of labor required
for critical phases. The Construction
Manager shall make recommendations for
actions designed to minimize adverse
effects of labor shortages.
2.2.15 The Construction Manager
shall assist the Owner in obtaining
information regarding applicable
requirements for equal employment opportunity
programs for inclusion in the Contract
Documents.
2.2.16 Following the Owner's
approval of the Construction Documents, the
Construction Manager shall update and
submit the latest estimate of Construction
Cost and the Project construction schedule
for the Architect's review and the
Owner's approval.
2.2.17 The Construction Manager
shall submit the list of prospective bidders
for the Architect's review and the Owner's
approval.
2.2.18 The Construction Manager
shall develop bidders' interest in the Project
and establish bidding schedules. The
Construction Manager, with the assistance
of the Architect, shall issue bidding
documents to bidders and conduct prebid
conferences with prospective bidders. The
Construction Manager shall assist the
Architect with regard to questions from
bidders and with the issuance of
addenda.
2.2.19 The Construction Manager
shall receive bids, prepare bid analyses and
make recommendations to the Owner for the
Owner's award of Contracts or
rejection of bids.
2.2.20 The Construction Manager
shall assist the Owner in preparing
Construction Contracts and advise the Owner
on the acceptability of
Subcontractors and material suppliers
proposed by Contractors.
2.2.21 The Construction Manager
shall assist the Owner and Contractor in
obtaining building permits and special
permits for permanent improvements,
except for permits required to be obtained
directly by the various Contractors.
The Construction Manager shall verify that
the Owner has paid applicable fees
and assessments. The Construction Manager
shall assist the Owner and Architect
in connection with the Owner's
responsibility for filing documents required for
the approvals of governmental authorities
having jurisdiction over the Project.
2.3
CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT
2.3.1 The Construction Phase
will commence with the award of the initial
Construction Contract or purchase order
and, together with the Construction
Manager's obligation to provide Basic
Services under this Agreement, will end 30
days after final payment to all Contractors
is due.
2.3.2 The Construction
Manager shall provide administration of the Contracts
for Construction in cooperation with the
Architect as set forth below and in the
modified version of the edition of AIA
Document A201/CMa, General Conditions of
the Contract for Construction, Construction
Manager-Adviser Edition, as agreed
upon between the Owner and Construction
Manger.
2.3.3 The Construction
Manager shall provide administrative, management and
related services to coordinate scheduled
activities and responsibilities of the
Contractors with each other and with those
of the Construction Manager, the
Owner and the Architect to endeavor to
manage the Project in accordance with the
latest approved estimate of Construction
Cost, the Project Schedule and the
Contract Documents
2.3.4 The Construction
Manager shall schedule and conduct meetings to discuss
such matters as procedures, progress and
scheduling. The Construction Manager
shall prepare and promptly distribute
minutes to the Owner, Architect and
Contractors.
2.3.5 Utilizing the
Construction Schedules provided by the Contractors, the
Construction Manager shall update the
Project construction schedule
incorporating the activities of the
Contractors on the Project, including
activity sequences and durations,
allocation of labor and materials, processing
of Shop Drawings, Product Data and Samples,
and delivery of products requiring
long lead time and procurement. The Project
construction schedule shall include
the Owner's occupancy requirements showing
portions of the Project having
occupancy priority. The Construction
Manager shall update and reissue the
Project construction schedule as required
to show current conditions. If an
update indicates that the previously
approved Project construction schedule may
not be met, the Construction Manager shall
recommend corrective action to the
Owner and Architect.
2.3.6 Consistent with the
various bidding documents, and utilizing
information from the Contractors, the
Construction Manager shall coordinate the
sequence of construction and assignment of
space in areas where the Contractors
are performing Work.
(C) 1992 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT
B801/CMa - OWNER-CONSTRUCTION MANAGER
AGREEMENT - 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, expiration as noted below,
expiration as noted below. User Document:
b801 dev agr apr uyya -- 4/9/2003. AIA
License Number 1768076504, which expires on
10/30/2003,
Electronic Format B801/CMa-1992
3
<PAGE>
2.3.7 The Construction
Manager shall endeavor to obtain satisfactory
performance from each of the Contractors.
The Construction Manager shall
recommend courses of action to the Owner
when requirements of a Contract are not
being fulfilled.
2.3.8 The Construction
Manager shall monitor the approved estimate of
Construction Cost. The Construction Manager
shall show actual costs for
activities in progress and estimates for
uncompleted tasks by way of comparison
with such approved estimate.
2.3.9 The Construction
Manager shall develop cash flow reports and forecasts
for the Project and advise the Owner and
Architect as to variances between
actual and budgeted or estimated costs.
2.3.10 The Construction Manager
shall maintain accounting records on
authorized Work performed under unit costs,
additional Work performed on the
basis of actual costs of labor and
materials, and other Work requiring
accounting records.
2.3.11 The Construction Manager
shall develop and implement procedures for the
review and processing of applications by
Contractors for progress and final
payments.
2.3.11.1 Based on the Construction
Manager's observations and evaluations of
each Contractor's Application for Payment,
the Construction Manager shall review
and certify the amounts due the respective
Contractors.
2.3.11.2 The Construction Manager shall
assemble and prepare
the Project
Application(s) for Payment based on the
Contractors' Certificates for Payment.
2.3.11.3 The Construction Manager's
certification for payment shall constitute a
representation to the Owner, based on the
Construction Manager's determinations
at the site as provided in Subparagraph
2.3.13 and on the data comprising the
Contractors' Applications for Payment,
that, to the best of the Construction
Manager'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
Construction Manager. The issuance of a
Certificate for Payment shall further
constitute a representation that the
Contractor is entitled to payment in the
amount certified.
2.3.11.4 The issuance of a Certificate for
Payment shall be a representation
that the Construction Manager has (1) made
or reasonable and continuous on-site
inspections to check the quality or
quantity of the Work, (2) reviewed
construction means, methods, techniques,
sequences for the Contractor's own
Work, 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 and (4) ascertained for what
purpose the Contractor has used money
previously paid on account of the Contract
Sum by means of review of pertinent lien
waiver documentation.
2.3.12 The Construction Manager
shall review the safety programs developed by
each of the Contractors for purposes of
coordinating the safety programs with
those of the other Contractors. The
Construction Manager's responsibilities for
coordination of safety programs shall not
extend to direct control over or
charge of the acts or omissions of the
Contractors, Subcontractors, agents or
employees of the Contractors or
Subcontractors, or any other persons performing
portions of the Work and not directly
employed by the Construction Manager.
2.3.13 The Construction Manager shall
determine in general that the Work of each
Contractor is being performed in accordance
with the requirements of the
Contract Documents, endeavoring to guard
the Owner against defects and
deficiencies in the Work. As appropriate,
the Construction Manager shall 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. The Construction Manager, in
consultation with the Architect and
Owner, may reject Work which does not
conform to the requirements of the
Contract Documents.
2.3.14 The Construction Manager
shall schedule and coordinate the sequence of
construction in accordance with the
Contract Documents and the latest approved
Project construction schedule.
2.3.15 With respect to each
Contractor's own Work, the Construction Manager
shall have control over or charge of and
shall be responsible for coordination
of the Contractor's construction means,
methods, techniques, sequences or
procedures, and for safety precautions and
programs by the Contractor in
connection with the Work of each of the
Contractors. The Construction Manager
shall be responsible for a Contractor's
failure to carry out the Work in
accordance with the respective Contract
Documents. The Construction Manager
shall have control over or charge of acts
or omissions of the Contractors,
Subcontractors, or their agents or
employees, or any other persons performing
portions of the Work directly employed by
the Construction Manager. The
aforementioned statement of control, charge
and responsibility shall not
obligate the Construction Manager to assume
any additional financial obligations
associated with the Work performed by the
Contractors.Subcontractors, vendors,
agents or employees.
2.3.16 The Construction Manager
shall transmit to the Architect requests for
interpretations of the meaning and intent
of the Drawings and Specifications,
and assist in the resolution of questions
that may arise.
(C)1992 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT
B801/CMa - OWNER-CONSTRUCTION MANAGER
AGREEMENT - 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, expiration as noted below,
expiration as noted below. User Document:
b801 dev agr apr uyya -- 4/9/2003. AIA
License Number 1768076504, which expires on
10/30/2003.
Electronic Format B801/CMa-1992
4
<PAGE>
2.3.17 The Construction Manager
shall review requests for changes, assist in
negotiating Contractors' proposals, submit
recommendations to the Architect and
Owner, and, if they are accepted, prepare
Change Orders and Construction Change
Directives which incorporate the
Architect's modifications to the Documents.
2.3.18 The Construction Manager
shall assist the Architect in the review,
evaluation and documentation of Claims.
2.3.19 The Construction Manager
shall receive certificates of insurance from
the Contractors and forward them to the
Owner with a copy to the Architect.
2.3.20 In collaboration with the
Architect, the Construction Manager shall
establish and implement procedures for
expediting the processing and approval of
Shop Drawings, Product Data, Samples and
other submittals. The Construction
Manager shall review all Shop Drawings,
Product Data, Samples and other
submittals from the Contractors. The
Construction Manager shall coordinate
submittals with information contained in
related documents and transmit to the
Architect those which have been approved by
the Construction Manager. The
Construction Manager's actions shall be
taken with such reasonable promptness as
to cause no delay in the Work or in the
activities of the Owner or Contractors.
2.3.21 The Construction Manager
shall record the progress of the Project. The
Construction Manager shall submit written
progress reports to the Owner and
Architect including information on each
Contractor and each Contractor's Work,
as well as the entire Project, showing
percentages of completion. The
Construction Manager shall keep a daily log
containing a record of weather, each
Contractor's Work on the site, number of
workers, identification of equipment,
Work accomplished, problems encountered,
and other similar relevant data as the
Owner may require.
2.3.22 The Construction Manager
shall maintain at the Project site for the
Owner one record copy of all Contracts,
Drawings, Specifications, addenda,
Change Orders and other Modifications, in
good order and marked currently to
record changes and selections made during
construction, and in addition,
approved Shop Drawings, Product Data,
Samples and similar required submittals.
The Construction Manager shall maintain
records, in duplicate, of principal
building layout lines, elevations of the
bottom of footings, floor levels and
key site elevations certified by a
qualified surveyor or professional engineer.
The Construction Manager shall make all
such records available to the Architect
and upon completion of the Project shall
deliver them to the Owner.
2.3.23 The Construction Manager
shall coordinate with Contractor(s) for the
delivery, storage, protection and security
of Owner-purchased materials, systems
and equipment that are a part of the
Project until such items are incorporated
into the Project.
2.3.24 With the Architect and the
Owner's maintenance personnel, the
Construction Manager shall observe the
Contractors' final testing and start-up
of utilities, operational systems and
equipment.
2.3.25 When the Construction
Manager considers each Contractor's Work or a
designated portion thereof substantially
complete, the Construction Manager
shall, jointly with the Contractor, prepare
for the Architect a list of
incomplete or unsatisfactory items and a
schedule for their completion. The
Construction Manager shall assist the
Architect in conducting inspections to
determine whether the Work or designated
portion thereof is substantially
complete.
2.3.26 The Construction Manager
shall coordinate the correction and completion
of the Work. Following issuance of a
Certificate of Substantial Completion of
the Work or a designated portion thereof,
the Construction Manager shall
evaluate the completion of the Work of the
Contractors and make recommendations
to the Architect when Work is ready for
final ins
