AGREEMENT FOR DESIGN/BUILD SERVICES ON A GUARANTEED MAXIMUM COST BASIS

 

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[CRB BUILDERS LLC LOGO]                                             EXHIBIT 10.21

                                                   11701 BORMAN DRIVE, SUITE 110

                                                             ST. LOUIS, MO 63146

                                                            PHONE: (314) 997-0244

                                                             FAX: (314) 824-0049

 

                       AGREEMENT FOR DESIGN/BUILD SERVICES

                       ON A GUARANTEED MAXIMUM COST BASIS

 

This Agreement is made and entered into this 19th day of March, 2003, by and

between Serologicals Corporation (Owner) and CRB Builders.

 

In consideration of the mutual covenants and agreements set forth herein, Owner

and CRB Builders agree as follows:

 

                                    ARTICLE 1

                               GENERAL PROVISIONS

 

CRB Builders agrees to furnish or arrange for the architectural, engineering and

construction services set forth herein and required for completion of the

Project.

 

1.1 Definitions

 

1.1.1 The Project is the design and construction of Project BETA to be located

on property of Owner situated in Lawrence, Kansas.

 

1.1.2 The Work is the design and/or construction services required to complete

the Project.

 

1.1.3 The Contract Documents, which constitute the entire Agreement between the

Owner and CRB Builders, consist of:

 

              .1   This Agreement and all exhibits hereto.

 

              .2   Conceptual and Preliminary Design Documents produced under a

                  previous Purchase Order and this Agreement.

 

              .3   Final design drawings, construction working drawings and

                  specifications produced under this Agreement.

 

              .4   Change Orders.

 

               .5   Written amendments to this Agreement.

 

1.2 Extent of Agreement

 

The Contract Documents represent the entire agreement between the Owner and CRB

Builders and supersede all prior negotiations, representations or agreements.

This Agreement shall not be superseded by any provisions of the documents for

construction and may be amended only by written instrument signed by both the

Owner and CRB Builders. Owner may issue purchase orders to CRB Builders to

satisfy Owner's purchasing requirements. It is agreed that the terms and

conditions included in such purchase orders shall be considered deleted for

purposes of this Project.

 

                                    ARTICLE 2

                          CRB BUILDERS RESPONSIBILITIES

 

2.1 CRB Builders Services

 

CRB Builders shall furnish or arrange for the following services for execution

and completion of the Agreement, which shall constitute the "Work," through its

employees or subcontractors.

 

CRB Builders                      Page 1 of 13

 

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2.1.1 CRB Builders shall provide the architectural and engineering design for

the Project in accordance with the laws of the state in which the Project in

located. The design shall be performed with the skill and care which would be

exercised by comparable qualified professional architects and engineers

performing similar services at the time such services are performed.

 

2.1.2 CRB Builders will secure the construction building permits necessary for

the construction of the Project, on behalf of the Owner.

 

2.1.3 CRB Builders shall keep such accounts as may be necessary for financial

management under this Agreement, and shall furnish the Owner with an estimated

cash flow schedule for the Project. CRB Builders shall provide the Owner with a

Schedule of Values allocated to major segments of work for the Project.

 

2.1.4 CRB Builders will provide the Owner with an estimated design and

construction schedule for the Project. This Schedule shall indicate the

approximate dates for the starting and completion of the various stages of the

design and construction, and shall contain the necessary information to allow

the Owner to monitor the progress of the Work. It shall be revised as required

by the conditions of the Work and those conditions and events which are beyond

CRB Builders' control.

 

2.1.5 CRB Builders will provide all materials and equipment, supervision,

inspection, testing, labor, tools, construction equipment and specialty items

necessary to execute and complete construction of the Project.

 

2.1.6 CRB Builders shall take necessary precautions for the safety of its

employees on the Work, and shall comply with all applicable provisions of

federal, state and municipal safety laws and shall include in all subcontracts

provisions which require its subcontractors to be responsible for the safety of

their employees on the Work, and to comply with all applicable provisions of

federal, state and municipal safety laws. It is agreed that CRB Builders shall

have no responsibility for the abatement of safety hazards resulting from work

at the job site carried on by other persons or by the Owner's separate

contractors, or by the Owner or persons for which it is responsible, and the

Owner will comply with, and agree to cause any such separate contractors or

persons to comply fully with, all applicable provisions of federal, state and

municipal safety laws and regulations.

 

2.1.7 CRB Builders shall give notices and comply with laws, ordinances, rules,

regulations and lawful orders of public authorities relating to the Project.

 

2.1.8 CRB Builders shall pay royalties and license fees required by the Work.

CRB Builders shall defend suits or claims for infringement of patent rights and

shall save the Owner harmless from loss on account thereof, except that the

Owner shall be responsible for such loss when a particular design, process or

product of a particular manufacturer is required by the Owner.

 

2.1.9 CRB Builders shall keep the premises of the Project free from accumulation

of trash and other debris caused by CRB Builders' operation. At the completion

of the Work, CRB Builders shall remove from the Project its tools, surplus

materials, construction equipment and machinery.

 

2.1.10 CRB Builders shall prepare Change Orders for the Owner's approval and

execution in accordance with this Agreement.

 

2.1.11 CRB Builders shall maintain in good order at the site one record copy of

the drawings, specifications, product data, samples, shop drawings, Change

Orders and other Modifications, marked currently to record major changes made

during construction. These shall be delivered to the Owner upon completion of

the Project and final payment. As-built drawings will be delivered at the end of

the project in the format consistent with the original design documents.

 

2.2       Warranties and Completion

 

2.2.1 CRB Builders warrants to the Owner that all materials and equipment

furnished under this Agreement will be new, unless otherwise specified, and that

all construction work will be of good quality, free from improper workmanship

and defective materials. This warranty does not include defects caused by Owner

modification, abuse, improper maintenance or operation. CRB Builders agrees to

correct all work performed by it under this Agreement which proves to be

defective in material or workmanship within a period of one (1) year from the

date of Substantial Completion as defined in paragraph 5.2.1, provided that this

warranty covers equipment, accessories and parts manufactured by others only to

the extent of liability to CRB Builders on the part of the manufacturer thereof,

and no warranty is provided for Owner provided equipment. Any warranty or

guarantee obtained by CRB Builders from any such manufacturer shall be deemed to

have been obtained for the benefit of the Owner. The foregoing warranties are in

lieu of all other warranties, express or implied, including but not limited to,

the implied warranties of merchantability and fitness for purpose.

 

2.2.2 CRB Builders will secure required certificates of inspection, testing or

approval required for building construction and deliver them to the Owner.

 

CRB Builders                      Page 2 of 13

 

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2.2.3 CRB Builders will collect all equipment manuals and deliver them to the

Owner, together with all written warranties from equipment manufacturers, and

CRB Builders will have no further obligation with respect to them.

 

                                    ARTICLE 3

                            OWNER'S RESPONSIBILITIES

 

3.1 The Owner shall provide full information regarding its requirements for the

Project.

 

3.2 The Owner shall designate a representative who shall be fully acquainted

with the Project, and have authority to approve changes in the scope of the

Project, render approvals and decisions promptly, and furnish information

expeditiously and in time to meet the dates set forth in the Schedule. The

Owner's designated representative is Tom McCall.

 

3.3 The Owner shall furnish, for the site of the Project, topographical surveys

describing the physical characteristics; soils reports and subsurface

investigations; legal limitations; utility locations; and a legal description,

including a property survey and Project benchmark, and warrant the accuracy of

such information.

 

3.4 The Owner shall secure and pay for necessary approvals, easements,

assessments and charges required for the construction, connection, use, or

occupancy of permanent structures or for permanent changes in existing

facilities.

 

3.5 The Owner shall furnish such legal services as may be necessary for

providing the items set forth in Paragraph 3.4, and such auditing services as it

may require.

 

3.6 If the Owner becomes aware of any fault or defect in the Work or

nonconformance with the Drawings or Specifications, it shall give prompt written

notice thereof to CRB Builders.

 

3.7 The Owner shall provide the insurance for the Project as provided in

paragraphs 10.4 and 10.5. Owner shall bear the cost of any bonds that it may

require to be maintained in connection with the Project.

 

3.8 The services and information required by the above paragraphs shall be

furnished with reasonable promptness at Owner's expense and CRB Builders shall

be entitled to rely upon the accuracy and the completeness thereof.

 

3.9 The Owner shall furnish reasonable evidence to CRB Builders, prior to

signing this Agreement, or any time thereafter that sufficient funds are

available and committed for the entire Cost of the Project. If CRB Builders

elects to proceed with work without having received such evidence, it may stop

work upon fifteen (15) days notice if such evidence has not been furnished

within a reasonable time after such request.

 

3.10 The Owner upon reasonable written request shall furnish CRB Builders in

writing information which is necessary and relevant for CRB Builders to

evaluate, give notice of or enforce Mechanic's Lien rights. Such information

shall include a correct statement of the record legal title to the property on

which the Project is located, and the Owner's interests therein at the time of

execution of the Agreement and, within five (5) days after any change in title.

 

3.11 The Owner shall have no contractual obligation to CRB Builder's

subcontractors and shall communicate with such subcontractors only through CRB

Builders.

 

3.12 The Owner shall pay for all utility connection fees and special facility

charges rendered by utilities for connection of permanent utility services to

the Project.

 

                                    ARTICLE 4

                                  SUBCONTRACTS

 

4.1 All portions of the Work that CRB Builders does shall be performed under

subcontracts. CRB Builders shall select competent subcontractors and shall be

responsible for the management of the subcontractor's performance of their work.

 

4.2 A Subcontractor is a person or entity which has a direct contract with CRB

Builders to perform any work in connection with the Project. The term

Subcontractor does not include any separate contractor employed by the Owner or

the separate contractors' subcontractors.

 

4.3 No contractual relationship shall exist between the Owner and any

subcontractor of CRB Builders.

 

CRB Builders                      Page 3 of 13

 

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                                    ARTICLE 5

                CONTRACT TIME SCHEDULE AND SUBSTANTIAL COMPLETION

 

5.1 Contract Time

 

5.1.1 The Work to be performed under this Agreement shall be commenced on or

about September 30, 2002, and shall be substantially completed in accordance

with the Schedule provided pursuant to Paragraph 2.1.4. Initial design began

September 30, 2002 with a Letter of Approval dated October 3, 2002 which shall

be considered done under this contract agreement.

 

5.1.2 The term day as used in the Contract Documents shall mean calendar day,

unless otherwise specifically designated.

 

5.2 Substantial Completion

 

5.2.1 The Date of Substantial Completion of the Project or a designated portion

thereof is the date when construction is sufficiently complete in accordance

with the Drawings and Specifications so the Owner can occupy or utilize or, in

fact, does occupy or utilize, the Project or designated portion thereof for the

use for which it is intended.

 

5.2.2 The Date of Substantial Completion shall be established by a Certificate

of Substantial Completion signed by the Owner and CRB Builders and shall state

their respective responsibilities for security, maintenance, heat, utilities,

damage to the Work and insurance. This Certificate shall also list the item to

be completed or corrected (if any) and fix the time for their completion and

correction. Disputes between the Owner and CRB Builders regarding the

Certificate of Substantial Completion shall be resolved by arbitration.

 

5.3 Commencement of Warranties

 

5.3.1 Warranties called for by this agreement or by the Drawings and

Specifications shall commence on the Date of Substantial Completion of the

Project or designated portion thereof, as reflected by the Certificate of

Substantial Completion.

 

5.4 Delays

 

5.4.1 If CRB Builders is delayed at any time in the progress of the Project by

any act or neglect of the Owner, by any separate contractor employed by the

Owner or by the action of any governmental agency or regulatory body, or by

changes ordered in the Project, or by labor disputes, fire, unusual delay in

transportation, unusual delay in issuance of building permits or zoning or

utility services, unusual delay or shortages in material supplies, adverse

weather conditions not reasonably anticipatable, unavoidable casualties, acts of

God, or any other causes beyond CRB Builders control, then the Schedule shall be

extended for the period of such delay upon application therefor by CRB Builders.

 

5.4.2 If CRB Builders is delayed by any act or neglect of Owner or by any

separate contractor employed by Owner, CRB Builders will be compensated for all

costs which it incurs as a result of such delay, and a Change Order will be

issued therefor.

 

                                    ARTICLE 6

                                 CONTRACT PRICE

 

6.1   Owner agrees to pay CRB for the cost of work as defined in Article 7 and

     based on the scope of work as defined in this document. Such payment shall

     be in addition to the Contractors Fee stipulated in 6.4.

 

6.2   The maximum cost to the Owner, including the Cost of Work and the

     Contractors Fee will be established as a Guaranteed Maximum Price. This

     Guaranteed Maximum Price will be established at a mutually agreeable time

     before any substantial construction is commenced. Exhibit A of this

     contract defines the Guaranteed Maximum Price.

 

6.3   For preliminary services prior to agreement of a Guaranteed Maximum Price

     Owner shall reimburse CRB for all labor and materials on a cost

     reimbursable basis not to exceed Three million and 00/100 Dollars

     ($3,000,000). The cost for preliminary services will be rolled into the

     Guaranteed Maximum Price once it is established.

 

6.4   If the actual Cost of Work together with the Contractor's Fee is less than

     the Guaranteed Maximum Price stated above, the Owner and CRB shall divide

     such difference by the adjustment in the final payment, 80 percent to Owner

     and 20 percent to CRB.

 

CRB Builders                      Page 4 of 13

 

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6.5   In consideration of the performance of the Contract, Owner agrees to pay

     CRB in current funds as compensation for its services a "Contractor's Fee"

     of 2.0 percent of the "Cost of Work".

 

6.6   In addition to the "Contractor's Fee" the Owner will pay CRB an "Incentive

     Award Fee" of up to 1.5 percent of the "Cost of Work". The "Incentive Award

     Fee" shall be administered per Exhibit B of this Contract.

 

6.7   For changes in the work, the Contractor's Fee shall be adjusted

     proportionately to the original fee.

 

                                    ARTICLE 7

                                COST OF THE WORK

 

7.1 The term "Cost of Work" shall mean costs actually incurred in the proper

performance of the Work and paid or incurred by CRB Builders in connection

therewith. Such costs shall include, but not be limited to, the items set forth

below in this Article 7.

 

7.1.1 Cost and direct expenses for architectural and engineering services in

connection with the project.

 

7.1.2 Cost and direct expenses for the administration and management of the Work

performed in the office, at the Project site and on the premises of suppliers or

fabricators.

 

7.1.3 Wages paid for labor in the direct employ of CRB Builders who perform

field construction work, including such welfare or other benefits, if any, as

may be payable with respect thereto.

 

7.1.4 The proportion of reasonable transportation, traveling and hotel and

moving expenses of CRB Builders, or of its officers or employees, incurred in

discharge of duties connected with the Project.

 

7.1.5 Cost of all materials, supplies and equipment incorporated in the Project

or suitably stored or stockpiled in an appropriate manner and location,

including costs and transportation and storage thereof.

 

7.1.6 Payments by CRB Builders to construction subcontractors and for specialty

services necessary to execute and complete the Work. The specialty services

include, by way of illustration and not limitation, additional surveying and

subsurface exploration, materials testing, and special inspections required by

government agencies and insurance companies.

 

7.1.7 Cost, including transportation and maintenance, of all materials,

supplies, equipment, general conditions, temporary facilities, includ