EXHIBIT 10.64
PORTIONS OF THE FOLLOWING DOCUMENT HAVE DELETED
DUE TO THE CONFIDENTIAL NATURE OF THE
INFORMATION CONTAINED THEREIN.
SUCH DELETIONS ARE INDICATED AS FOLLOWS:
(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED)
THE CONFIDENTIAL INFORMATION HAS BEEN FILED
SEPARATELY WITH THE COMMISSION
ENGINEERING, PROCUREMENT,
CONSTRUCTION AND VALIDATION SERVICES AGREEMENT
BETWEEN
MEDIMMUNE, INC.
AND
FLUOR ▇▇▇▇▇▇, INC.
TABLE OF CONTENTS
ARTICLE TITLE PAGE
INTRODUCTION 1
ARTICLE I DESCRIPTION OF AGREEMENT 1
ARTICLE II SCOPE OF SERVICES 2
ARTICLE III COMPENSATION 6
ARTICLE IV TERMS OF PAYMENT 8
ARTICLE V WARRANTIES AND GUARANTEES 12
ARTICLE VI INDEMNIFICATION 14
ARTICLE VII INSURANCE 16
ARTICLE VIII TERMINATION AND CANCELLATION 17
ARTICLE IX COMPLETION, START UP AND VALIDATION 19
ARTICLE X GENERAL PROVISIONS 22
SIGNATURE PAGE 28
EXHIBITS:
Exhibit "A" - Scope of Services/Facilities
Exhibit "B" - Schedule of Payments and Milestones
Exhibit "B-1" - Letter of Credit Draft In Lieu of Retention Sample
Exhibit "C" - Schedule of Reimbursable Costs
ENGINEERING, PROCUREMENT,
CONSTRUCTION AND VALIDATION SERVICES AGREEMENT
THIS AGREEMENT for the performance of services is executed on the
9th day of August, 1996 and made effective as of the 31st day of
July, 1996, between Fluor ▇▇▇▇▇▇, Inc. ("Fluor ▇▇▇▇▇▇") and
MedImmune, Inc. ("MedImmune").
IN CONSIDERATION of the covenants set forth herein, the parties
hereto mutually agree as follows:
ARTICLE I
DESCRIPTION OF AGREEMENT
1.1 Documents Included
This agreement consists of this contract document and the
following attached exhibits, as well as approved final
drawings and specifications (collectively the "Agreement"):
Exhibit "A" - Scope of Services/Facilities (including
engineering, design, construction and validation)
Exhibit "B" - Schedule of Payments and Milestones
Exhibit "C" - Schedule of Reimbursable Costs
1.2 Entire Agreement
This Agreement, as defined in Section 1.1, sets forth the
full and complete understanding of the parties with regard
to the subject matter hereof as of the date first above
stated, and it supersedes any and all agreements and
representations made or dated prior thereto with regard to
the same subject matter. For the sake of convenience, the
parties may, from time to time, issue purchase orders, work
orders, or other such forms. However, the contractual terms
and conditions of this Agreement may be supplemented,
deleted and/or changed only through formal written
amendments to this Agreement, and not through purchase
orders, work orders or any other or similar such documents
unless evidenced by a written change order signed by each of
the parties hereto; and any such terms or conditions
contained in purchase orders, work orders or any other or
similar such documents shall be void and of no force or
effect unless evidenced by such change orders.
1.3 Conflicting Provisions
In the event of any conflict between this contract document
and any of the Exhibits hereto, the terms and provisions of
this contract document shall control. In the event of any
conflict among the Exhibits, the Exhibit of the latest date
shall control.
ARTICLE II
SCOPE OF SERVICES
2.1 Description of Services
Fluor ▇▇▇▇▇▇ shall perform all design, engineering,
procurement, construction (including Punch List items, as
defined in Section 9.2b) and validation services as
described in Exhibit "A", (the "Project"). All goods,
materials, supplies and equipment to be procured,
transported, installed, or validated, and all services to be
performed by Fluor ▇▇▇▇▇▇ are hereinafter referred to as the
"Services".
2.2 Fluor Daniel's Responsibilities
As part of the Services, Fluor ▇▇▇▇▇▇ shall, subject to the
terms and provisions of this Agreement:
(a) Furnish the services of qualified supervisors,
engineers, designers, draftsmen and other personnel
necessary or appropriate for the preparation of
drawings, specifications and other such items necessary
or appropriate for the completion of the Services;
(b) Furnish the services of buyers, inspectors,
expediters, procurement and other personnel necessary
or appropriate to procure machinery, equipment,
materials, supplies, miscellaneous construction items
and related services necessary for the completion of
the Services;
(c) Furnish the services of procurement personnel,
construction managers, supervisors, engineers and other
personnel necessary or appropriate to place and
administer construction subcontracts, purchase orders
and other such agreements necessary for the completion
of the Services;
(d) Furnish the design and other services of other
managers, engineers, supervisors, foremen, construction
workers, skilled and unskilled labor and other
personnel necessary or appropriate for the completion
of the Services;
(e) Prepare drawings, specifications and other such
items necessary or appropriate for the completion of
the Services, the drawings or documents identified in
Exhibit "A" as requiring MedImmune approval shall be
submitted to MedImmune for approval; including
technical drawings, schedules, diagrams and
specifications, setting forth in detail the
requirements for construction of the Project, and
provide information customarily necessary for the use
of those in the building trades and include documents
customarily required for regulatory agency approvals;
(f) Procure machinery, equipment, materials, supplies
(other than ethanol, feedstock, and operational
supplies required beyond OQ (as hereafter defined),
miscellaneous construction items and services
(including transportation, utilities and other
facilities) necessary or appropriate for the proper
execution and completion of the Services;
(g) Place and administer construction subcontracts,
purchase orders and other such agreements necessary for
the completion of the Services and supervise and direct
the Services using its best skill and attention to
assure that the Project is completed in a good and
workmanlike manner;
(h) Perform the validation services described in
Exhibit "A";
(i) Supply the materials, small tools and consumables
necessary or appropriate for the completion of the
Services;
(j) Supply major construction tools and equipment
necessary or appropriate for the completion of the
Services;
(k) Prepare and furnish a Project Schedule and issue
updates thereof to MedImmune once per month;
(l) File all documents and obtain all permits and
licenses necessary for the Services, except those which
are required by Exhibit "A" to be obtained by
MedImmune; provided that MedImmune will cooperate with
Fluor ▇▇▇▇▇▇ and take any reasonable actions which are
required of MedImmune and/or reasonably requested by
Fluor ▇▇▇▇▇▇;
(m) Except to the extent to be provided by MedImmune
pursuant to the express terms of this Agreement,
furnish the services of personnel, and provide the
tools and materials, necessary or appropriate to start
up the Project as provided in Exhibit "A";
(n) Furnish the services of all validation personnel
necessary or appropriate to validate the Project
through Installation Qualification ("IQ") and
Operational Qualification ("OQ"), as provided in
Exhibit "A";
(o) Pay all sales, consumer, use and similar taxes,
fees and import duties to the extent they were in
effect on the date hereof;
(p) Keep the premises free from accumulation of waste
materials or rubbish, and upon the completion of the
Services, remove from and about the Project its tools,
construction equipment, machinery, surplus materials,
waste materials and rubbish, and if Fluor ▇▇▇▇▇▇ fails
to clean up at the completion of the Services,
MedImmune may do so and the cost thereof shall be
charged to Fluor ▇▇▇▇▇▇;
(q) Prepare Change Orders for approval and execution
by MedImmune in accordance with this Agreement;
(r) At reasonable times, during normal business hours,
provide access to shop drawings, product data, samples
and other technical data for review during construction
of the Project;
(s) Perform inspections, tests and approvals necessary
or appropriate for the Services;
(t) Provide operating manuals and written instructions
relating to the operation of all installed and portable
equipment provided hereunder; and
(u) Within five (5) days following execution of this
Agreement, appoint one or more individuals who shall be
authorized to act on behalf of Fluor ▇▇▇▇▇▇ and with
whom MedImmune may consult at all reasonable times, and
whose instructions, requests and decisions will be
binding upon Fluor ▇▇▇▇▇▇ as to all matters pertaining
to this Agreement and the performance of the parties
hereunder.
(v) Assign to this Project the team of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ and on-site
supervisor, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who will be dedicated to
this Project as necessary or appropriate to effect its
completion.
2.3 MedImmune's Responsibilities
MedImmune shall at such times as may be required by Fluor
▇▇▇▇▇▇ for the successful and expeditious completion of the
Services:
(a) Provide a site for the Services;
(b) Provide or cause others to provide Fluor ▇▇▇▇▇▇
with the design criteria, surveys, soil test results,
and other information, listed in Exhibit "A";
(c) Cooperate with Fluor ▇▇▇▇▇▇ in its obtaining of
permits and licenses as specified in Section 2.2. (l);
and obtain, with Fluor Daniel's assistance and
cooperation, all permits and licenses which are listed
in Exhibit "A" as the responsibility of MedImmune;
(d) Provide, or cause others to provide, a designation
on an MedImmune supplied survey, together with a
physical marker at a specific location on the Project
site (or other nearby location readily accessible to
Fluor ▇▇▇▇▇▇), showing the precise location of Fluor
Daniel's starting reference point;
(e) Obtain and pay all expenses involved in obtaining
the easements and rights of way necessary for Fluor
▇▇▇▇▇▇ to perform the Services, as identified in
Exhibit "A";
(f) Provide interface with and coordination of all
work which is being performed by MedImmune or
contractors other than Fluor ▇▇▇▇▇▇, if any;
(g) Provide ALTA survey showing all existing utilities
and other improvements at the Project site;
(h) Advise of the existence and location, and
undertake the abatement and disposal of all toxic
and/or hazardous materials at the Project site, which
are encountered by Fluor ▇▇▇▇▇▇ in the performance of
the Services;
(i) Furnish within ten (10) days of a written request
all required reviews and approvals (or other
appropriate action) with respect to all samples,
estimates, schedules, shop drawings, drawings,
specifications, purchase orders, contracts, and other
items submitted and/or proposed by Fluor ▇▇▇▇▇▇;
(j) Provide appropriate on-site representatives and
all feed stock necessary or appropriate to start up the
Project;
(k) Appoint an individual who shall be authorized to
act on behalf of MedImmune, with whom Fluor ▇▇▇▇▇▇ ▇▇▇
consult at all reasonable times, and whose
instructions, requests and decisions will be binding
upon MedImmune as to all matters pertaining to this
Agreement and the performance of the parties hereunder.
MedImmune hereby appoints ▇▇▇▇ ▇▇▇▇▇▇, but reserves the
right to substitute another person on ten (10) days
prior written notice.
ARTICLE III
COMPENSATION
3.1 Contract Price
Base Contract. In consideration of the undertakings by
Fluor ▇▇▇▇▇▇ pursuant to this Agreement (including the
performance of all the Services hereunder), MedImmune shall
pay Fluor ▇▇▇▇▇▇ a lump sum contract price (the "Contract
Price") of Forty Two Million Five Hundred Thousand Dollars
($42,500,000.00), which amount is subject to adjustment only
as expressly provided in this Agreement, and regardless of
Fluor Daniel's estimates or actual costs of labor,
materials, equipment, tools and supplies to perform the
Services.
3.2 Adjustments to the Contract Price and the Project Schedule
It is the desire of the parties to keep changes in the
Services at a minimum, but the parties recognize that such
changes may become necessary. The parties agree that
changes shall be handled as follows:
(a) MedImmune may initiate a change to the Services by
advising Fluor ▇▇▇▇▇▇ in writing of the change believed
to be necessary. As soon thereafter as practicable,
Fluor ▇▇▇▇▇▇ shall prepare and forward to MedImmune a
cost estimate of the change and the adjustment to the
Contract Price (upwards or downwards), the Project
Schedule, and any scheduled completion date(s)
applicable thereto. Fluor ▇▇▇▇▇▇ shall be reimbursed
for the costs incurred to prepare its estimate (the
"Estimate Costs") in the event of change orders
initiated by MedImmune. In the event of change orders
initiated by Fluor ▇▇▇▇▇▇, the Estimate Costs shall be
borne by Fluor ▇▇▇▇▇▇. MedImmune shall within ten
(10) days advise Fluor ▇▇▇▇▇▇ in writing of its
approval or disapproval of the change. If MedImmune
approves the change, Fluor ▇▇▇▇▇▇ shall perform the
Services as changed and the adjustments to the Contract
Price, the Project Schedule, and any completion date(s)
applicable thereto shall become effective. If Fluor
▇▇▇▇▇▇ and MedImmune cannot agree upon the appropriate
changes to the Contract Price, the Project Schedule and
any scheduled completion date(s) applicable to a
change, but MedImmune approves or directs the change
anyway, or the change is of a type set forth in Section
3.2 (b) below, Fluor ▇▇▇▇▇▇ shall, provided MedImmune
makes payments in accordance with this Agreement,
continue the Services (including change order work)
without interruption, and the Contract Price, the
Project Schedule, and any scheduled completion date(s)
shall be equitably adjusted, by mutual agreement of the
parties if possible. If the parties cannot agree, the
cost of any increased or expanded Services provided by
Fluor ▇▇▇▇▇▇ shall be equal to the sum of reimbursable
costs in respect of such additional Services determined
in accordance with the Schedule of Reimbursable Costs
which is attached as Exhibit "C", plus an aggregate fee
to Fluor ▇▇▇▇▇▇ of five percent (5%) of such costs.
Fluor ▇▇▇▇▇▇ ▇▇▇ initiate changes by advising MedImmune
in writing that in Fluor Daniel's opinion a change is
necessary. If MedImmune agrees, MedImmune shall
promptly advise Fluor ▇▇▇▇▇▇ in writing and,
thereafter, the change shall be handled as if initiated
by MedImmune (except for reimbursement of Estimate
Costs). If MedImmune rejects such change proposed by
Fluor ▇▇▇▇▇▇, Fluor ▇▇▇▇▇▇ shall not perform the change
recommended by Fluor ▇▇▇▇▇▇. Notwithstanding anything
in this Agreement to the contrary, in the event Fluor
▇▇▇▇▇▇ requests any increase in the Contract Price or
extension of the scheduled completion date(s) by reason
of any Force Majeure event (subject to the limitations
set forth in Section 10.3 hereof) or MedImmune delay,
as a condition thereof, Fluor ▇▇▇▇▇▇ shall, within ten
(10) days after it becomes aware of the occurrence of
the event or circumstances giving rise to the alleged
Force Majeure event or MedImmune delay, notify
MedImmune of such events or circumstances in writing,
which notice shall identify with reasonable detail the
nature of the delay, its estimated impact on completion
dates and Contract Price, if any, and Fluor Daniel's
plan for mitigating such impact to the extent
practicable.
(b) Changes shall include, and the Contract Price, the
Project Schedule, and any scheduled completion date(s)
shall be equitably adjusted to reflect (1) the addition
to, modification of or deletion from the Services or
the items shown or described in Exhibit "A"; (2) an
approved change in the Project Schedule and/or any
scheduled completion date(s); (3) MedImmune's request
for performance of Services in excess of Fluor Daniel's
standard work day or work week or on a holiday
customarily observed by Fluor ▇▇▇▇▇▇ unless otherwise
required pursuant to Section 4; (4) the discovery of
any subsurface conditions which differ from (a) those
shown in or reasonably inferable from the Agreement (or
the documents known to both parties upon which the
Agreement is based), and (b) those ordinarily
encountered and generally recognized as inherent in
work of the type contemplated herein in the area of the
Project site, and (c) those reasonably apparent upon
customary inspection; (5) a modification of applicable
law (or a change in the interpretation thereof) after
the date hereof which substantially affects
(individually or in the aggregate) the cost of and/or
time required for performing the Services; (6) delay or
suspension of, or interference with, the Services by
MedImmune or by any other person or entity including,
but not limited to, national, state and local
governments, but excluding Fluor ▇▇▇▇▇▇ and any party
directly or indirectly under the control of Fluor
▇▇▇▇▇▇; provided, however, that delay by governmental
entities shall not be considered a Force Majeure event
if occasioned by a failure of Fluor ▇▇▇▇▇▇ to comply
with the standards of care and diligence set forth in
Section 5.1 of this Agreement; (7) the discovery of any
subsurface rock which is not "rippable" using
conventional rock ripping methods and which is not
disclosed by the soil report or reasonably apparent by
customary inspection; (8) errors or omissions in and/or
modifications made to and/or unreasonable delay in
furnishing any design criteria (as set forth in Exhibit
"A"), other information expressly required by this
Agreement to be supplied to Fluor ▇▇▇▇▇▇ by MedImmune,
or decisions by MedImmune; and (9) any other increase
in Fluor Daniel's costs, or the time required for
completion of the Services due to any Force Majeure
event as defined in Section 10.3 hereof.
ARTICLE IV
TERMS OF PAYMENT
4.1 Payments
Subject to Section 4.2 below, MedImmune shall pay Fluor
▇▇▇▇▇▇ the Contract Price in monthly installments in the
amounts set forth in the Schedule of Payments and Milestones
which is attached hereto as Exhibit "B". Subject to Section
4.2 below, payments shall be made by wire transfer on the
scheduled dates, to a bank account designated by Fluor
▇▇▇▇▇▇ in writing. Fluor Daniel's pay requests shall be
accompanied by Fluor Daniel's certificate indicating
progress with respect to each item of Services described in
the applicable Milestone and with respect to the Milestone
as a whole, and lien waivers for the work covered by such
pay request. MedImmune shall have the right to review and
approve all pay requests. Provided that MedImmune is not in
default of any payment obligation hereunder, Fluor ▇▇▇▇▇▇
agrees to satisfy, remove or bond off any liens claimed by
it, its employees, subcontractors or suppliers, within
fifteen (15) days of its receipt of written notice thereof,
and Fluor Daniel's performance of this obligation shall be a
condition to MedImmune's obligation to make payments
hereunder. Any change in the Contract Price under this
Agreement shall be incorporated into the Schedule of
Payments and Milestones in an equitable manner.
4.2 Milestones
If and to the extent that Fluor ▇▇▇▇▇▇ does not achieve the
Milestones set forth in Exhibit "B", as modified by Change
Order, by the payment dates to which they correspond, for
other than a delay (beyond 10 days) by MedImmune in
approving submittals or making required decisions, MedImmune
may withhold an equitable amount of the corresponding
payment equal to the value of the incomplete portion until
Fluor ▇▇▇▇▇▇ does complete such incomplete portion and
achieve the missed Milestones. Fluor ▇▇▇▇▇▇ shall submit
invoices indicating its progress with respect to the
applicable Milestone and its proposed values for any
incomplete portions thereof. The parties agree, however,
that no payment shall be required with respect to any given
Milestone in the event that Fluor Daniel's progress toward
completion of the events included within such Milestone is
less than 75% of the aggregate value of such Milestone; in
addition, no payment shall be required with respect to any
item of Services within any Milestone if progress on that
item is less than 75% of the progress required to complete
such item within such Milestone. In the event that Fluor
▇▇▇▇▇▇ fails to achieve any Milestone as a result of a Force
Majeure event, Fluor ▇▇▇▇▇▇ shall be entitled to partial
payment with respect to such Milestone whether or not its
progress meets or exceeds 75% of the value of such
Milestone, but (1) only Fluor Daniel's external out-of-
pocket costs and expenses (not to exceed the percentage of
progress achieved) with respect to such Milestone shall be
paid in the event of progress less than such 75% amount
(excluding overhead, general conditions, and all costs of
Fluor ▇▇▇▇▇▇ employees on site or in supervisory,
administrative, or executive roles); and (2) such expenses
shall be paid only if, but for such Force Majeure event,
Fluor ▇▇▇▇▇▇ would have achieved at least 75% completion of
such Milestone. Failure of Fluor ▇▇▇▇▇▇ to achieve
Milestones and the withholding by MedImmune of all or a
portion of the corresponding payment shall have no effect on
MedImmune's obligation to make future payments as long as
Fluor ▇▇▇▇▇▇ meets the requirements thereof and shall have
no effect on Fluor Daniel's obligations hereunder, except as
set forth in the next sentence. Whenever this Agreement
provides for the adjustment of the Project Schedule or any
scheduled completion date(s) (including, without limitation,
Sections 3.2, 6.2 and 10.3), the Milestone dates shall be
correspondingly adjusted; provided, however, that Fluor
▇▇▇▇▇▇ and MedImmune expressly agree that in the event Fluor
▇▇▇▇▇▇ is behind the Project Schedule (for reasons other
than a Force Majeure event or MedImmune default) to such an
extent that Fluor ▇▇▇▇▇▇ will not be able to achieve timely
Completion, or the applicable portion thereof by the
applicable Milestones, Fluor ▇▇▇▇▇▇, as a cost which shall
not cause an adjustment to the Contract Price, shall employ
such additional forces or pay such additional overtime wages
and salaries as may be reasonably required to place the
progress of the Services in conformance with the Project
Schedule required to achieve timely Completion.
4.3 Other Payment Provisions
(a) Fluor ▇▇▇▇▇▇ shall promptly pay each subcontractor (and
require each subcontractor to promptly pay each sub-
subcontractor), upon receipt of payment from MedImmune, out
of the amount paid to Fluor ▇▇▇▇▇▇ on account of such
subcontractor's work, the amount to which said subcontractor
(or sub-subcontractor) is entitled in accordance with the
terms of Fluor Daniel's contract with such subcontractor.
Fluor ▇▇▇▇▇▇ shall, by appropriate agreement with each
subcontractor, require each subcontractor to make payments
to sub-subcontractors in similar manner.
(b) MedImmune shall have no obligation to pay or to be
responsible in any way for payment to a contractor of Fluor
▇▇▇▇▇▇.
(c) No progress payment or partial or entire use or occupancy of
the Project by MedImmune shall constitute an acceptance of
Services not in accordance with the Contract Documents.
(d) In lieu of having retainage withheld from its payments
hereunder, Fluor ▇▇▇▇▇▇ shall provide an escalating
irrevocable standby letter of credit in the ultimate amount
of Four Million Two Hundred Fifty Thousand Dollars
($4,250,000.00), with MedImmune as beneficiary, in the form
of Exhibit B-1 prior to payment by MedImmune of amounts due
at Milestone 3 (as set forth in Exhibit B attached hereto).
The cost of the Letter of Credit (priced at 15 basis points)
will be separately reimbursed and is not included in the
Contract Price. Fluor ▇▇▇▇▇▇ shall be provided 72 hours
advance written notice of any draw against the Letter of
Credit. Fluor ▇▇▇▇▇▇ hereby waives any right to seek an
injunction or other equitable relief to prohibit any such
draw after its receipt of the 72 hour advance written
notice.
In the event that Fluor ▇▇▇▇▇▇ (i) fails to complete its
Services by thirty (30) days after the scheduled Completion
date (as adjusted to the extent expressly permitted
hereunder), MedImmune may draw against the Letter of Credit
for the liquidated damages then accrued pursuant to the
terms of this Agreement or (ii) is in default hereunder,
MedImmune may draw against the Letter of Credit for any
damages then accrued pursuant to the terms of this
Agreement. MedImmune may, thereafter, make additional draws
every ten days for additional damages or liquidated damages
then accrued. MedImmune shall have no right to draw against
the Letter of Credit for prospective or anticipated damages
or liquidated damages, but only for damages or liquidated
damages after they have accrued. Fluor ▇▇▇▇▇▇ shall have no
right to dispute MedImmune's calculation of damages or
liquidated damages with respect to draws against its Letter
of Credit; however, Fluor ▇▇▇▇▇▇ ▇▇▇ still dispute with
MedImmune the propriety or amount of damages or liquidated
damages subsequent to any such draw.
The escalation schedule shall be as follows:
Issuance $ 850,000.00
12/1/96 $1,700,000.00
4/1/97 $2,550,000.00
8/1/97 $3,400,000.00
12/1/97 $4,250,000.00
4.4 Final Payment
Notwithstanding the payment schedule set forth in Exhibit
"B", subject to the provisions of Section 9.4 hereof, the
final installment of the Contract Price, due at Completion,
together with all other amounts then due and owing by
MedImmune to Fluor ▇▇▇▇▇▇ pursuant to any change orders
effected in accordance with this Agreement, shall be paid if
and when Fluor ▇▇▇▇▇▇ has (a) completed the Services and OQ
has been achieved, including completion of all Punch List
items, issuance of a permanent Certificate of Occupancy or
its equivalent for the Project from the applicable
governmental authority having jurisdiction over the Project,
balancing of all the base building systems, delivery and
assignment to MedImmune of all Project permits and
manufacturers' warranties, and delivery to MedImmune of a
complete set of construction drawings red-lined on CAD to
reflect "as built" conditions, (b) certified that all bills
for labor and materials connected with the Project will be
fully paid from the proceeds of Final Payment and delivered
appropriate lien waivers, and (c) a full, clean title
insurance policy update has been obtained with affirmative
mechanic's lien insurance. Acceptance of final payment
shall constitute a waiver of all claims by Fluor ▇▇▇▇▇▇.
4.5 Interest
Subject to Section 8.2 hereof, any payment not made within
five (5) business days of its due date under this Agreement
(including any disputed amounts which are ultimately paid)
shall bear interest at the rate of one percent (1%) per
annum above the prime rate then published in the Wall Street
Journal, until paid, but not to exceed the maximum rate
permitted by applicable law. The payment of interest shall
not excuse or cure any delinquent payment. If for any
reason, other than a default by Fluor ▇▇▇▇▇▇, MedImmune
fails to pay Fluor ▇▇▇▇▇▇ in full as required by this
Agreement (subject to Sections 8.2 and 9.4), after notice
and failure to cure within ten (10) business days Fluor
▇▇▇▇▇▇ ▇▇▇, without limitation, suspend its performance of
the Services until all outstanding amounts have been paid in
full by MedImmune and/or exercise its rights under Section
8.2; provided, however, that Fluor ▇▇▇▇▇▇ shall not suspend
its Services if any such non-payment arises from a good
faith, reasonable dispute between the parties.
ARTICLE V
WARRANTIES AND GUARANTEES
5.1 Fluor Daniel's Services
Fluor ▇▇▇▇▇▇ warrants and guarantees that (a) it will
perform the Services in a good and workmanlike fashion and
in accordance with the standards of care and diligence
normally practiced by recognized engineering and
construction firms in performing services of a similar
nature for similar projects at the time the Services are
performed; and (b) the materials, supplies and equipment
included within the Services (excluding the Listed
Equipment, as defined below) shall be new (except as
otherwise approved by MedImmune), free from defects in
design and workmanship (other than de minimus defects) and
in compliance with the design and procurement specifications
set forth in Exhibit A, which is attached hereto. Fluor
▇▇▇▇▇▇ warrants the truth and accuracy of any of its written
communications to MedImmune containing representations of
fact. Review by MedImmune of any document submitted by
Fluor ▇▇▇▇▇▇ shall not constitute acceptance thereof and
shall not relieve Fluor ▇▇▇▇▇▇ of its obligations hereunder.
Fluor ▇▇▇▇▇▇ further warrants and guarantees that its
Services will comply with applicable laws, as provided in
Section 10.2 of this Agreement.
At the written request of MedImmune delivered at any time
prior to one (1) year after the earlier of: (i) Completion
of the Services pursuant to Section 9.2(c); or (ii)
scheduled Completion of the Services, in the event that the
Services are terminated pursuant to Article VIII; Fluor
▇▇▇▇▇▇ shall, at its sole cost and expense, perform all
corrective Services within the scope of Services (including
any approved change orders) as are necessary to make the
Services conform to the foregoing warranty and guarantee.
Corrective Services shall be warranted, as provided herein,
for a period of one year following the completion of any
such item of corrective Service. Fluor Daniel's total
aggregate liability in connection with this warranty shall
in no event exceed Five Million Dollars ($5,000,000.00) of
external costs.
5.2 Third Party Items
Fluor ▇▇▇▇▇▇ shall, for the protection of MedImmune, obtain
from all vendors, suppliers, manufacturers and other
entities from whom Fluor ▇▇▇▇▇▇ purchases the machinery,
equipment, tools, and other items listed in the equipment
list appearing as Attachment 7 to Exhibit "A" (the "Listed
Equipment"), warranties and/or guarantees with respect
thereto, which shall be made available to MedImmune to the
full extent of the terms thereof. Fluor Daniel's liability
with respect to such Listed Equipment shall be limited to
procuring customary warranties and/or guarantees from such
vendors, suppliers, manufacturers and other entities (unless
otherwise specified) of at least one (1) year in duration
and rendering all reasonable assistance to MedImmune for the
purpose of enforcing the same; provided that Fluor Daniel's
warranty and guarantee shall apply to the installation of
such Listed Equipment, and to the assurance and warranty
that such Listed Equipment is new and in compliance with the
specifications set forth in Exhibit "A" attached hereto.
Except for installation, no warranty shall apply to used
equipment that may be purchased, so long as the purchase of
such used equipment is authorized by the terms of this
Agreement. MedImmune shall notify Fluor ▇▇▇▇▇▇ in the event
that it desires longer warranties on any of the Listed
Equipment, in which event Fluor ▇▇▇▇▇▇ shall obtain pricing
for such longer warranties from the vendors, and MedImmune
shall approve a change order increasing the Contract Price
by such amount in the event it elects to obtain such longer
warranty.
5.3 Title
Fluor ▇▇▇▇▇▇ warrants that title to the work, material and
equipment (including the Listed Equipment) will pass to
MedImmune upon receipt of payment by Fluor ▇▇▇▇▇▇ for such
work, material or equipment. Provided that MedImmune makes
proper payment in accordance with the terms of this
Agreement, such work, material and equipment shall be free
of any liens, claims, security interests or encumbrances.
5.4 Limitations
The obligations contained in this Article V are Fluor
Daniel's sole warranty and guarantee obligations and the
exclusive remedy of MedImmune in respect of the quality of
the Services. As used in this Articles, the quality of the
Services includes, without limitation, any requirement that
the Services (or any product thereof including the Project)
comply with laws, codes, standards, rules, regulations,
specifications, drawings or other criteria. Fluor ▇▇▇▇▇▇
makes no warranties or guarantees relating to the staffing,
performance or cost of operation of the Project, nor makes
any other warranties or guarantees, expressed or implied,
which are not expressly set forth herein. ALL IMPLIED
WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE
EXPRESSLY DISCLAIMED AND WAIVED, IT BEING ACKNOWLEDGED AND
AGREED THAT THE ONLY WARRANTIES AFFORDED HEREUNDER ARE THOSE
EXPRESSLY SET FORTH HEREIN. The failure of MedImmune to (a)
properly operate and maintain the Project or (b) allow Fluor
▇▇▇▇▇▇ to promptly make such tests and perform such
reasonable corrective Services as Fluor ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
appropriate, shall relieve Fluor ▇▇▇▇▇▇ of its warranty and
guarantee obligations relative to such improper operation
and maintenance or the subject of such test or corrective
Service, but only to the extent that such failure shall have
resulted in damage to the Project which otherwise would not
have occurred. Fluor ▇▇▇▇▇▇ shall have no liability for
defects in the Services attributable to Fluor Daniel's use
of and/or reliance upon data, design criteria, drawings,
specifications, reports or other information furnished by or
on behalf of MedImmune as provided in Exhibit A unless Fluor
▇▇▇▇▇▇ knew or, employing the standards set forth in Section
5.1 hereof, should have known of such defects. MedImmune is
responsible for the design criteria set forth in Exhibit A
as being MedImmune's responsibility and for the design of
its processes related to product manufacturing and Fluor
▇▇▇▇▇▇ does not warrant or guarantee such process or the
design associated therewith. This Article V governs,
modifies and supersedes any other terms in this Agreement
which address warranties or guarantees or the quality of the
Services.
ARTICLE VI
INDEMNIFICATION
6.1 Bodily Injury and Property Damage Liability
Fluor ▇▇▇▇▇▇ shall indemnify, defend and hold MedImmune
harmless from any and all claims, liabilities and causes of
action for bodily injury to and/or death of any person, and
for damage to and/or destruction of property (excluding,
however, the property for which MedImmune assumes the risk
of loss and/or damage in Section 6.2 below) to the extent
resulting from the negligent acts or omissions of Fluor
▇▇▇▇▇▇, its agents and subcontractors.
6.2 Protection of the Project
Fluor ▇▇▇▇▇▇ shall, before it constructs any significant
improvements at the site, purchase and maintain a Builder's
"All-Risk" Insurance Policy in the amount of the full
replacement cost of the Project from an insurance company
reasonably acceptable to MedImmune, insuring against risk of
loss and/or damage to the Project constructed by Fluor
▇▇▇▇▇▇ (including all materials, machinery, equipment and
other items to be incorporated into the Project by Fluor
▇▇▇▇▇▇ while the same are in transit, at the Project site,
during erection and otherwise but excluding, without
limitation, items furnished by MedImmune or others not
within Fluor Daniel's control), and all construction tools
and equipment used by Fluor ▇▇▇▇▇▇ in constructing the
Project which are in the custody of Fluor ▇▇▇▇▇▇. MedImmune
shall reimburse Fluor ▇▇▇▇▇▇ for the cost of this policy,
and such cost is not included in the Contract Price.
MedImmune shall be made co-loss payee as its interests may
appear under this policy. Fluor ▇▇▇▇▇▇ shall have the right
to adjust Builder's "All Risk" Insurance claims, with
participation by MedImmune, and, subject to the provisions
of the Loan Documents, the proceeds of such insurance shall
be paid to Fluor ▇▇▇▇▇▇ as the Services and repair,
replacement or reconstruction progresses. Fluor ▇▇▇▇▇▇
shall be obligated to repair, replace or reconstruct any
portion of the Project which is lost, damaged or destroyed,
prior to Completion or any transfer of care, custody and
control of the Project agreed to in writing by MedImmune.
MedImmune assumes all responsibility for such loss, damage
and destruction after Completion or such transfer of care,
custody and control to MedImmune agreed to in writing by
MedImmune. Any agreed upon completion dates and Milestone
dates shall be equitably adjusted to account for the time
required for any such repair, replacement and/or
reconstruction. Fluor Daniel's liability in connection with
repair, replacement and/or reconstruction of the Project or
any portion thereof, shall in no event exceed the sum of (1)
the proceeds to Fluor ▇▇▇▇▇▇ of the Builder's "All-Risk"
Insurance; plus (2) the amount of any deductible under such
Builder's "All-Risk" Insurance (if and to the extent such
loss was caused by the negligence or breach of contract by
Fluor ▇▇▇▇▇▇ or its subcontractors); plus (3) repair,
replacement or reconstruction costs arising from Fluor
Daniel's gross negligence or willful misconduct.
6.3 MedImmune's Property
Except as provided in Section 6.2 above, MedImmune assumes
all risk of and responsibility for all loss of, damage to
and/or destruction of the Project and all property owned by
or in the custody of MedImmune, including its affiliates,
however such loss, damage or destruction shall occur.
Except as provided in Section 6.2 hereof, MedImmune waives
any recovery rights it may have against Fluor ▇▇▇▇▇▇ for any
such loss, damage or destruction and agrees to obtain a
waiver of subrogation rights of its insurers against Fluor
▇▇▇▇▇▇ for any such loss, damage or destruction. If
MedImmune is not the sole owner of the Project site and all
property thereat, MedImmune shall obtain an undertaking from
the other owners thereof sufficient to provide to Fluor
▇▇▇▇▇▇ the same protection from liability for loss or damage
as would be afforded to Fluor ▇▇▇▇▇▇ under this Agreement if
MedImmune were the sole owner.
6.4 Mutual Waiver of Subrogation
MedImmune and Fluor ▇▇▇▇▇▇ hereby waive all rights against
each other and any of their subcontractors, sub-
subcontractors, agents, affiliates, assigns and employees,
each of the other, for damages caused by fire or other
perils to the extent covered by property insurance obtained
in accordance with the terms of Section 6.2 and 6.3 above or
any other property insurance obtained by the injured party.
All such insurance policies shall provide waivers of
subrogation by the insurance carrier by endorsement or
otherwise. A waiver of subrogation shall be effective as to
a person or entity, even though that person or entity would
otherwise have a duty of indemnification, contractual or
otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity had an
insurable interest in the property damaged. Fluor ▇▇▇▇▇▇
shall require from its subcontractors and subcontractors
similar waivers in favor of Fluor ▇▇▇▇▇▇ and MedImmune.
6.5 Limitations
Fluor ▇▇▇▇▇▇ shall have no obligation to MedImmune with
respect to any damage to or loss of property caused by the
perils of war, insurrection, revolution, nuclear reaction or
other like perils as may be excluded under the scope and
limits of the insurance coverage provided pursuant to
Sections 6.2, 6.3 and 7.1. MedImmune shall have no
liability to Fluor ▇▇▇▇▇▇ with respect to such excluded
risks; provided, however, that Fluor ▇▇▇▇▇▇ shall have no
obligation to repair or rebuild the facilities
(notwithstanding any provision to the contrary in Section
6.2) as a result of damage caused by such excluded risk
unless and to the extent that MedImmune agrees by change
order to pay Fluor ▇▇▇▇▇▇ for such repairs or rebuilding.
6.6 Safety
Fluor ▇▇▇▇▇▇ shall be responsible for initiating,
maintaining and providing supervision of safety precautions
and programs in connection with the Services. Fluor ▇▇▇▇▇▇
shall take reasonable precautions for safety of, and shall
provide reasonable protection to prevent damage, injury or
loss to (1) employees on the Services and other persons who
may be affected thereby; (2) the Services and materials and
equipment to be incorporated therein whether in storage on
or off site; and (3) other property at or adjacent to the
site. Fluor ▇▇▇▇▇▇ shall give notices and comply with
applicable laws, ordinances, rules, regulations and orders
of public authorities bearing on the safety of persons and
property and their protection from damage, injury or loss.
Fluor ▇▇▇▇▇▇ shall require and be responsible for the
erection and maintenance as required by existing conditions
and progress of the Services, of all reasonable safeguards
for safety and protection, including posting danger signs
and other warnings against hazards, promulgating safety
regulations and notifying owners and users of adjacent
facilities. The parties agree that this Section 6.6 shall
neither enlarge nor limit Fluor Daniel's indemnity
obligations, nor the parties' allocation of risk concerning
property damage, all as set out in Sections 6.1 through 6.5
above.
ARTICLE VII
INSURANCE
7.1 Fluor Daniel's Commitment
Commencing with the performance of its Services hereunder,
and continuing during the performance of any such Services,
Fluor ▇▇▇▇▇▇ shall maintain in force standard insurance
policies from reputable insurance carriers reasonably
acceptable by MedImmune authorized to do business in the
State of Maryland, as follows:
(a) Worker's Compensation and/or all other disability
benefit or Social Insurance in accordance with the
statutory requirements of the state, province or
country having jurisdiction over Fluor Daniel's
employees who are engaged in the Services, with
Employer's Liability of One Million Dollars
($1,000,000).
(b) Commercial General Liability, including
Contractual Liability and Products/Completed Operations
coverage, covering bodily injury, sickness, disease
and/or death of persons and loss of and/or damage to
property. Such insurance shall be provided in a
Combined Single Limit of Five Million Dollars
($5,000,000).
(c) Automobile Liability insurance covering owned, non-
owned and hired vehicles, with a combined single limit
of One Million Dollars ($1,000,000), covering bodily
injury to and/or death of persons and loss of and/or
damage to property.
(d) Excess Umbrella Liability covering (b) and (c) and
the Employer's Liability part of (a), above, with a
combined single limit of Ten Million Dollars
($10,000,000.00).
7.2 Certificates
The foregoing insurance shall be maintained with carriers
reasonably satisfactory to MedImmune, and the terms of
coverage shall be as evidenced by certificates to be
furnished to MedImmune. Such certificates shall provide
that thirty (30) days' written notice shall be given to
MedImmune prior to cancellation or material alteration of
any policy.
7.3 Subrogation
The parties each agree to cause their respective insurers to
waive rights of subrogation against the other in any
policies of insurance that may apply with respect to claims
arising out of or relating to this Agreement.
ARTICLE VIII
TERMINATION AND CANCELLATION
8.1 Termination by MedImmune
Should Fluor ▇▇▇▇▇▇ become insolvent or bankrupt, or should
Fluor ▇▇▇▇▇▇ refuse or neglect to supply a sufficient number
of properly skilled workmen, equipment, tools or material
within Fluor Daniel's control, or should Fluor ▇▇▇▇▇▇ fail
to timely pay its subcontractors, or should Fluor ▇▇▇▇▇▇
commit a substantial breach of this Agreement, and should
Fluor ▇▇▇▇▇▇ thereafter fail to commence proceedings in good
faith to remedy such within ten (10) days after written
demand by MedImmune and to effect a cure within a reasonable
time, MedImmune may terminate this Agreement and enter upon
the premises and take possession thereof and at the same
time instruct Fluor ▇▇▇▇▇▇ to remove from the premises all
of its tools, equipment and supplies, or MedImmune may take
possession of Fluor Daniel's tools and equipment for the
purpose of completing the Services. Upon any such
termination, Fluor ▇▇▇▇▇▇ shall be liable to MedImmune for
the direct costs incurred by MedImmune to complete the
Project (including soft costs and reasonable attorneys' fees
incurred in placing the completion contract and the rental
costs of Fluor Daniel's tools and equipment as assessed
pursuant to this Section 8.1) to the extent such costs,
together with the amounts previously paid to Fluor ▇▇▇▇▇▇,
are in excess of the Contract Price provided in Paragraph
3.1 (subject to adjustment as provided herein). MedImmune
agrees to act in good faith and to take all reasonable steps
to mitigate the cost to complete the Project. If Completion
is delayed, Fluor ▇▇▇▇▇▇ shall be responsible for liquidated
damages, as provided in Section 9.4(b), for the portion of
such delay attributable to Fluor Daniel's demobilization,
the placement of a completion contract, and the mobilization
of the completing contractor.
In the event that MedImmune uses any of Fluor Daniel's
equipment or tools, MedImmune shall return the same to Fluor
▇▇▇▇▇▇ in good condition and repair, reasonable wear and
tear excepted, and shall pay Fluor ▇▇▇▇▇▇ for the use
thereof at Fluor Daniel's standard rental rates then in
effect. If and to the extent such costs of completing the
Project are less than the balance of the Contract Price,
Fluor ▇▇▇▇▇▇ shall be paid the difference, not to exceed the
total actual cost (excluding home office overhead and
profit) incurred by Fluor ▇▇▇▇▇▇ under this Agreement as of
the date of termination which remains unpaid.
8.2 Termination by Fluor ▇▇▇▇▇▇
Should MedImmune become insolvent or bankrupt or commit a
substantial breach or default of any of the covenants or
obligations hereunder and (a) fail to remedy the same within
ten (10) days after written notice thereof from Fluor
▇▇▇▇▇▇, if the breach constitutes a failure to pay money, or
(b) fail to commence in good faith to remedy the same within
ten (10) days after written notice thereof from Fluor ▇▇▇▇▇▇
and thereafter to effect a cure within a reasonable time, if
the breach is other than to pay money, then Fluor ▇▇▇▇▇▇ ▇▇▇
terminate this Agreement. Should Fluor ▇▇▇▇▇▇ so terminate
this Agreement, it shall be paid for all costs incurred for
Services performed through the date of termination, all
termination charges by vendors, subcontractors and others,
an equitable portion of any fees and/or profit, and the cost
of all demobilization expenses, in accordance with the
provisions of Article III; provided, however, that no
demobilization costs shall be reimbursable in the event that
such termination occurs after Fluor ▇▇▇▇▇▇ has been paid, or
is entitled to be paid, 50% of the Contract Price. Fluor
▇▇▇▇▇▇ agrees to act in good faith and to take all
reasonable steps to mitigate such costs. Notwithstanding
any of the foregoing to the contrary, in the event
MedImmune, in good faith, contests the amount of payment
claimed by Fluor ▇▇▇▇▇▇ to be owing to Fluor ▇▇▇▇▇▇ under
this Agreement, Fluor ▇▇▇▇▇▇ shall continue performance of
the Services pending resolution of such dispute provided
that MedImmune pays to Fluor ▇▇▇▇▇▇ all amounts (and
portions thereof) which are not subject to a good faith
dispute, and provided, further, that the Disputed Amount (as
defined below) does not exceed Three Million Dollars
($3,000,000.00) in the aggregate. The difference between
the amount paid by MedImmune and the amount claimed in good
faith by Fluor ▇▇▇▇▇▇ to be owing is referred to herein as
the "Disputed Amount." Notwithstanding the foregoing, in
the event that the Disputed Amount at any time exceeds Three
Million Dollars ($3,000,000.00) in the aggregate for more
than thirty (30) days, the parties shall be entitled to
exercise any remedies they may have under this Agreement,
including without limitation, those under Section 8.2. In
the event of termination for events of default other than
the failure to pay money, Fluor ▇▇▇▇▇▇ and MedImmune agree
to submit the issue of the validity of such termination to
binding arbitration within 30 days of Fluor Daniel's notice
of default.
8.3 Cancellation
MedImmune reserves the right to cancel the Services without
cause upon ten (10) days' written notice to Fluor ▇▇▇▇▇▇,
unless Fluor ▇▇▇▇▇▇ agrees in writing to a shorter notice
period. Should the Services be so cancelled by MedImmune,
Fluor ▇▇▇▇▇▇ shall be paid for all for Services performed
through the date of cancellation, all proven cancellation
charges by vendors, subcontractors and others, an equitable
portion of any fees and/or profit, and the cost of all
demobilization expenses, in accordance with the provisions
of this Agreement.
ARTICLE IX
COMPLETION, START UP AND VALIDATION
9.1 Scheduled Completion
Fluor ▇▇▇▇▇▇ shall commence the Services immediately after
the date of this Agreement and shall prosecute the Services
continuously, expeditiously and with adequate forces and due
diligence. TIME IS OF THE ESSENCE with respect to the date
scheduled for Completion, but not with respect to other
scheduled dates or Milestones. The Project is scheduled to
be Complete on or before December 31, 1997, which scheduled
date is subject to adjustment only as expressly provided
herein.
9.2 Acceptance
(a) Mechanical Completion When Fluor ▇▇▇▇▇▇ ▇▇▇▇▇ it
has achieved Mechanical Completion with respect to the
Project as defined in Exhibit A, it shall so notify
MedImmune in writing. At MedImmune's option and sole
discretion, Fluor ▇▇▇▇▇▇ shall notify MedImmune
regarding Mechanical Completion of specific portions of
the Project. Within ten (10) days thereafter,
MedImmune shall advise Fluor ▇▇▇▇▇▇ in writing of any
defects in the Services or incomplete items for which
Fluor ▇▇▇▇▇▇ is responsible under this Agreement which
prevent achievement of Mechanical Completion. As soon
as such defects and incomplete items are corrected (or
as soon as the ten (10) day period for such notice has
expired if MedImmune does not advise Fluor ▇▇▇▇▇▇ of
any such defects or incomplete items within the
period), Fluor ▇▇▇▇▇▇ shall be deemed to have achieved
Mechanical Completion with respect to all or the
specific portion of the Project.
(b) Start Up and Validation Following Mechanical
Completion, Fluor ▇▇▇▇▇▇ will complete all remaining
Services, provide personnel, tools and equipment, and
materials necessary or appropriate to start up the
Project (with "water runs" and not actual feedstock),
and shall Validate the Project through IQ and OQ, all
as described in more detail in Exhibit "A". Validation
of the Project following IQ and OQ shall be within the
discretion of, and shall be the responsibility of
MedImmune.
(c) Completion "Completion" shall have occurred when
Fluor ▇▇▇▇▇▇ has fully and finally completed all the
Services and OQ has been achieved, provided that (i)
Fluor ▇▇▇▇▇▇ shall provide to MedImmune thirty (30) day
advance notice prior to the estimated date of
Completion; (ii) Fluor ▇▇▇▇▇▇ shall have complied with
the requirements of Section 4.4, and (iii) the
appropriate governmental authorities shall have issued
a certificate of occupancy or its equivalent for the
Project (unless the nonissuance thereof is for reasons
related solely to bureaucratic delay notwithstanding
Fluor Daniel's timely compliance with its obligations
hereunder).
9.3 Nonwaiver
No acceptance or deemed acceptance of the Services by
MedImmune under Paragraph 9.2 shall (1) affect any warranty
of Fluor ▇▇▇▇▇▇ hereunder, (2) modify or impair the
obligation of Fluor ▇▇▇▇▇▇ to perform the Services in
accordance with this Agreement, including, without
limitation, the obligation to construct the Project in
accordance with MedImmune-approved plans and specifications
and applicable Laws or (3) otherwise constitute a waiver or
acceptance of any defective or nonconforming work other than
nonconforming work specifically acknowledged and approved in
writing by MedImmune.
9.4 Early Completion Bonus/Liquidated Delay Damages
(a) Early Completion Bonus If Fluor ▇▇▇▇▇▇ achieves
Completion prior to December 15, 1997 (as such date may be
hereafter adjusted as provided in this Agreement), MedImmune
will pay Fluor ▇▇▇▇▇▇ an early completion bonus of $250,000
per week for each week of early Completion with a cap not to
exceed Four Million Dollars ($4,000,000.00).
(b) Liquidated Delay Damages If Fluor ▇▇▇▇▇▇ does not
achieve Completion until after December 31, 1997 (as such
date may be hereafter adjusted, but only as expressly
provided in this Agreement), Fluor ▇▇▇▇▇▇ shall pay
MedImmune as liquidated damages (and not as a penalty) One
Hundred Thousand Dollars ($100,000.00) per week for the
first four weeks; Four Hundred Thousand Dollars
($400,000.00) per week for the next eight weeks and Fifty
Thousand Dollars ($50,000) per week after March 31, 1998.
In no event shall Fluor Daniel's total aggregate liability
under this Agreement for liquidated damages exceed Four
Million Dollars ($4,000,000.00). The parties hereby agree
that in the event that Fluor ▇▇▇▇▇▇ does not achieve
Completion by the date scheduled for Completion (as such
date may be hereafter adjusted, but only as expressly
provided in this Agreement), MedImmune will suffer damages
which will be difficult to calculate and the parties agree
that the liquidated damages provided in this Section 9.4(b)
are a fair and reasonable estimate thereof and shall not be
viewed as a penalty.
(c) For purposes of this Article 9, the figures for Early
Completion Bonuses and/or Liquidated Delay Damages shall be
pro-rated on a daily basis for partial weeks of early
completion or delay.
(d) Exclusive Remedy The parties hereby agree that the
Liquidated Damages provided in Section 9.4(b) (and the
rights as referenced in Section 8.1) of this Agreement,
shall be the sole and exclusive remedies of MedImmune
against Fluor ▇▇▇▇▇▇ and the sole and exclusive liabilities
of Fluor ▇▇▇▇▇▇ to MedImmune in connection with any failure
or alleged failure to timely perform and/or complete any of
its obligations under this Agreement, and Fluor ▇▇▇▇▇▇ shall
not have any other or further liabilities in connection with
the timeliness of its performance under this Agreement.
ARTICLE X
GENERAL PROVISIONS
10.1 Independent Contractor
Fluor ▇▇▇▇▇▇ shall be an independent contractor with respect
to the Services to be performed hereunder. Except as
hereinabove noted, neither Fluor ▇▇▇▇▇▇ nor its
subcontractors, nor the employees of either, shall be deemed
to be the servants, employees or agents of MedImmune.
10.2 Safety, Environmental and Legal Compliance
(a) Fluor ▇▇▇▇▇▇ shall perform all Services and give
all notices in compliance in all material respects with
all applicable federal, state and local laws, rules,
regulations, permits, approvals and ordinances
including, without limitation, the Food, Drug &
Cosmetic Act and the rules and regulations promulgated
thereunder and all environmental laws, rules and
regulations ("Laws").
(b) Anything herein to the contrary notwithstanding,
title to, ownership of, and legal responsibility and
liability for any and all "Pre-Existing Contamination"
shall at all times remain with MedImmune. Pre-Existing
Contamination is any hazardous or toxic substance
present at the Project site which was not brought onto
such site by Fluor ▇▇▇▇▇▇, its agents or
subcontractors. MedImmune releases, and agrees to
defend, indemnify and hold Fluor ▇▇▇▇▇▇ harmless from
and against any and all liability which may in any
manner arise or in any way be directly or indirectly
caused by such Pre-Existing Contamination.
(c) Notwithstanding Sections 5.1 and 10.2(a), and any
other provisions to the contrary, the parties recognize
that certain legal requirements (including, without
limitation, environmental, validation, health and
safety requirements) are imprecise and subject to
varied interpretation and that therefore Fluor Daniel's
obligation of designing in accordance with and
otherwise complying with Laws shall be limited to its
obligation to design the Project in accordance with
and/or to otherwise comply with Laws and
interpretations thereof which are generally known or
should be known by engineering and construction
contractors of Fluor Daniel's size, sophistication and
experience (inclusive, without limitation, experience
in the design, engineering, procurement, construction
and validation of biotechnology and/or bioprocessing
manufacturing facilities) at the effective date of
this Agreement (the "Recognized Laws"). Fluor ▇▇▇▇▇▇
shall modify the Services as necessary to comply with
changes in the Recognized Laws, provided, however, that
such modification shall be considered a change in the
Services under Section 3.2.
10.3 Force Majeure
Any delays in or failure of performance by MedImmune or
Fluor ▇▇▇▇▇▇, other than payment of money, shall not
constitute default hereunder if and to the extent such
delays or failures of performance are caused by occurrences
which are unforeseen and are beyond the control of MedImmune
or Fluor ▇▇▇▇▇▇, as the case may be (after diligence to
overcome or prevent such occurrences) including, but not
limited to: acts of God or the public enemy; expropriation
or confiscation of facilities; compliance with any order or
request of any governmental authority, unless such order is
reasonably foreseeable or arises in connection with a
default hereunder; act of war or rebellion or sabotage or
damage resulting therefrom; unavoidable fires, floods,
explosions, or accidents not caused by the negligence or
willful misconduct of the party seeking force majeure
treatment; adverse weather patterns which are abnormal for
the geographic area in which the project is located; or
riots or strikes or other concerted acts of workmen, whether
direct or indirect; or any causes, whether or not of the
same class or kind as those specifically above named, which
are not reasonably foreseeable at the time the Services were
commenced and which are not within the control of MedImmune
or Fluor ▇▇▇▇▇▇ respectively, and which by the exercise of
reasonable diligence, MedImmune or Fluor ▇▇▇▇▇▇ are unable
to prevent. The Contract Price, the Project Schedule, if
any, and any scheduled completion date(s) shall be equitably
adjusted to account for any force majeure event and Fluor
▇▇▇▇▇▇ shall be reimbursed by MedImmune only for all
external costs (excluding overhead, general conditions, and
all costs of Fluor ▇▇▇▇▇▇ employees on site or in
supervisory, administrative, or executive roles) incurred in
connection with or arising from a force majeure event
including, but not limited to, those external costs incurred
in the exercise of reasonable diligence to avoid or mitigate
a force majeure event. Fluor ▇▇▇▇▇▇ will use reasonable
efforts to exclude reimbursement of force majeure costs in
the subcontracts it places on this Project. Notwithstanding
any of the foregoing to the contrary, Fluor ▇▇▇▇▇▇ hereby
acknowledges that it is experienced in the construction of
projects similar to the Project, and that, based on such
experience, it believes that the Project can be completed
within the time frame set forth in this Agreement, taking
into account normal and foreseeable delays in processing
permits by governmental authorities, normal delays in
deliveries of materials, normal weather patterns for the
geographic area in which the Project is located and similar
occurrences for similar types of projects in the geographic
area in which the Project is located. Fluor ▇▇▇▇▇▇ ▇▇▇
terminate this Agreement pursuant to the terms of Section
8.2 in the event any force majeure event continues for more
than 90 days (but shall not be paid any of its remaining
fees or profit in such instance).
10.4 Title to Plans and Specifications
All drawings and specifications prepared by Fluor ▇▇▇▇▇▇
pursuant to this Agreement which Fluor ▇▇▇▇▇▇ supplies to
MedImmune in accordance with this Agreement shall become the
property of MedImmune. MedImmune shall indemnify, defend
and hold Fluor ▇▇▇▇▇▇ harmless from and against all losses,
expenses, claims and damages which result from any
disclosure, use or reuse of any such items other than in
connection with completing construction, maintenance,
operation, modification and/or repair of the subject
Project.
10.5 Patents
Fluor ▇▇▇▇▇▇ agrees to include, as a term or condition of
each purchase order or other agreement employed by it in the
performance of the Services, a patent indemnification
provision extending from the vendor under such purchase
order or other agreement to MedImmune and Fluor ▇▇▇▇▇▇, and
to render such assistance to MedImmune as may be reasonably
required to enforce the terms of such indemnification.
10.6 Secrecy Agreements
Any agreements or representations between Fluor ▇▇▇▇▇▇ and
MedImmune entered into prior to the effective date hereof
relating to secrecy or confidentiality of information
exchanged between Fluor ▇▇▇▇▇▇ and MedImmune shall survive
any completion of the Services hereunder, or any other
termination or cancellation of this Agreement, in accordance
with the respective terms and conditions of such other
agreement or agreements.
10.7 Representations and Remedies
Fluor ▇▇▇▇▇▇ and MedImmune make no representations,
covenants, warranties or guarantees, express or implied,
other than those expressly set forth herein. The parties'
rights, liabilities, responsibilities and remedies with
respect to the Services, whether in contract, tort,
negligence or otherwise, shall be exclusively those
expressly set forth in this Agreement.
10.8 Damages
Except only for: (i) the liquidated damages provided in
Section 9.4(b); (ii) those damages or obligations expressly
set forth in Sections 8.1; and (iii) such damages that may
arise from Fluor Daniel's fraud, gross negligence or willful
misconduct; Fluor ▇▇▇▇▇▇ shall in no event be responsible or
held liable for any indirect, incidental, special or
consequential damages of any nature whatsoever, including,
without limitation, liability for loss of use of property,
loss of profits or other revenue, interest, loss of product,
increased expenses or business interruption, however the
same may be caused and in no event shall Fluor Daniel's
total aggregate liability to MedImmune in connection with
the Services and/or this Agreement (including any breach
thereof) exceed the Contract Price.
10.9 Audit and Maintenance of Records
MedImmune shall have the right to audit and inspect Fluor
Daniel's records and accounts covering costs reimbursable
hereunder at all reasonable times during the course of the
Services and for a period of one (1) year after the earlier
of (i) acceptance thereof pursuant to Section 9.2, or (ii)
termination thereof pursuant to Article VIII; provided,
however, no audit rights shall extend to the make-up of
fixed rates, unit rates, or of costs which are expressed in
terms of percentages of other costs.
10.11 Assignment
This Agreement shall not be assignable by either party
without the prior written consent of the other party hereto,
except that (a) it may be assigned without such consent to
the legal successor of either party, or to a person, firm or
corporation acquiring all or substantially all of the
business assets of such party or to a wholly owned
subsidiary of either party, but any such assignment shall
not relieve the assigning party of any of its obligations
under this Agreement. No assignment of this Agreement shall
be valid until this Agreement shall have been assumed by the
assignee. When duly assigned in accordance with the
foregoing, this Agreement shall be binding upon and shall
inure to the benefit of the assignee.
10.12 Subcontracts
Fluor ▇▇▇▇▇▇ ▇▇▇ subcontract portions of the Services
required to be performed by Fluor ▇▇▇▇▇▇ to an independent
subcontractor, provided that such subcontract shall not
relieve Fluor ▇▇▇▇▇▇ of any of its obligations under this
Agreement. Fluor ▇▇▇▇▇▇ ▇▇▇ have portions of the Services
performed by its affiliated entities or their employees, in
which event Fluor ▇▇▇▇▇▇ shall be responsible for such
Services and MedImmune shall look solely to Fluor ▇▇▇▇▇▇ as
if the Services were performed by Fluor ▇▇▇▇▇▇. Each
subcontract shall be expressly assignable to MedImmune,
their successors and assigns.
10.13 Notices
All notices pertaining to this Agreement shall be in writing
and, if to MedImmune, shall be sufficient when sent
guaranteed overnight delivery by a nationally recognized
reputable courier to MedImmune at the following address:
MedImmune, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
All notices to Fluor ▇▇▇▇▇▇ shall be sufficient when sent
guaranteed overnight delivery by a nationally recognized
reputable courier to Fluor ▇▇▇▇▇▇ at the following address:
Fluor ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Notices shall be deemed sent when received.
10.14 Miscellaneous
(a) This Agreement shall be governed by and
interpreted in accordance with the laws of the State of
Maryland.
(b) Headings and titles of Articles, Sections,
Paragraphs and other parts and subparts of this
Agreement are for convenience of reference only and
shall not be considered in interpreting the text of
this Agreement. Modifications or amendments to this
Agreement must be in writing and executed by duly
authorized representatives of each party.
(c) Except as expressly stated to the contrary herein,
indemnities against, releases from, assumptions of and
limitations on liability expressed in this Agreement,
as well as waivers of subrogation rights, shall apply
even in the event of the fault, negligence or strict
liability of the party indemnified or released or whose
liability is limited or assumed or against whom rights
of subrogation are waived and shall extend to the
officers, directors, employees, licensors, agents,
affiliates, partners and related entities of such
party.
(d) In the event that any portion or all of this
Agreement is held to be void or unenforceable, the
balance of this Agreement shall remain effective and
the parties agree to negotiate in good faith to reach
an equitable agreement as to the unenforceable or void
provision which shall effect the original intent of the
parties as set forth in this Agreement.
(e) The parties agree to look solely to each other and
to their permitted assigns under Section 10.11, with
respect to the performance of this Agreement and the
Services to be provided hereunder. This Agreement and
each and every provision hereof is for the exclusive
benefit of MedImmune and Fluor ▇▇▇▇▇▇ and not for the
benefit of any third party, and no third party shall be
entitled to rely upon or enforce the terms of this
Agreement, or to be a third party beneficiary thereof,
except to the extent expressly provided in Section
10.14 (c).
(f) The provisions of this Agreement which by their
nature are intended to survive the termination,
cancellation, completion or expiration of the
Agreement, including, but not limited to, indemnifies
and any expressed limitations of or releases from
liability, shall continue as valid and enforceable
obligations of the parties notwithstanding any such
termination, cancellation, completion or expiration.
(g) No failure by either party to insist on
performance of any term, condition, or instruction, or
to exercise any right or privilege included in this
Agreement, shall construe a waiver of any breach hereof
unless waived in writing by such party and no such
written waiver of any breach shall constitute a waiver
of any subsequent breach of any other term, condition,
instruction, breach, right or privilege.
(h) All claims, disputes and other matters in question
which arise out of or relate to this Agreement
(including any breach thereof) shall be decided by a
court of competent jurisdiction without a jury, in the
state or federal courts in the State of Maryland.
(i) The parties hereby agree that regardless of any
statute of limitations period or any other time within
which a party is allowed to commence an action under
Maryland or other applicable law, any legal action or
proceeding commenced by any party under this Agreement
against another party in connection with this Agreement
(including, without limitation, any breach thereof),
other than an action premised on fraud, must be
commenced no later than three (3) years after the
earlier of (i) Completion or (ii) termination or
cancellation of the Services under Article VIII.
10.15 Fluor ▇▇▇▇▇▇ Representations and Warranties
Fluor ▇▇▇▇▇▇ hereby represents and warrants that prior to
entering into this Agreement, it has examined and inspected
the site at which the Project will be located and has
satisfied itself as to the conditions thereof, and reviewed
all available data and reports pertaining to the site,
including any environmental reports, soil samples and
related studies. Fluor ▇▇▇▇▇▇ hereby represents and
warrants that it possesses the experience, expertise and
resources necessary to perform the Services under this
Agreement and to otherwise design, engineer, construct and
validate the Project. Fluor ▇▇▇▇▇▇ shall employ an
experienced (in comparable projects) and competent Project
construction team. If MedImmune reasonably requests that a
member of the Project construction team be removed for
cause, then Fluor ▇▇▇▇▇▇ shall make such change promptly.
10.16 Work by MedImmune
MedImmune shall have access to the Project at all times.
MedImmune reserves the right to perform work related to, but
not part of, the Project and to award separate contracts in
connection with other work at the site. Fluor ▇▇▇▇▇▇ shall
afford MedImmune's separate contractors reasonable
opportunity for introduction and storage of their materials
and equipment for execution of their work. Any material
interference with the progress of Fluor Daniel's Services by
MedImmune or its separate contractors after notice and
failure to cure within twenty-four hours shall give rise to
a change order adjusting the Contract Price and Schedule for
the effects of such interference.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
MedImmune, Inc. Fluor ▇▇▇▇▇▇, Inc.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Title: Vice President,
Executive Officer General Manager
Exhibit "A"
SCOPE OF SERVICES/FACILITIES
(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR ENTIRE EXHIBIT A)
Exhibit B
Contract: 23619800
MedImmune, Inc.
Frederick, MD - Manufacturing Facility
Fluor ▇▇▇▇▇▇ Milestone Payment Schedule Blood
Fractionation, Cell Culture, Sterile Fill & Utilities
ACCELERATED PROJECT SCHEDULE
Activity Total
Invoice # Through Activities Value Invoice $
------------- -------- ---------------------------- ----------- ----------
Previous 6/30/96 Flour ▇▇▇▇▇▇ Preliminary
Engineering/Subcontracts/ 1,313,359 1,313,359
Equipment(invoiced or paid
to date- 5/31/96)
Milestone-0 Contract Closing 3,500,000 3,500,000
Milestone-1 7/31/96 Release Mill Order for
Structural Steel 200,000 1,063,085
Deep Foundations Package
Issued for Bid 200,000
Obtain Mass Grading Permit 200,000
Substantial Start of P&ID's 263,085
Site Preparation Package
Issued for Bid 200,000
Milestone-2 8/31/96 Site Civil Construction
Plans Complete 300,000 1,670,780
Foundation Package Issued
for Bid 350,000
Construction Management
Mobilized to Project Site 320,780
Award Site Preparation
Contract 300,000
Substantial Start of Rough
Grading 400,000
Milestone-3 9/30/96 Issue P&ID's for Approval
500,000 2,710,610
Building Foundations
Contract Awarded 460,610
Structural Steel Fabrication
Drawings Issued 600,000
Bid & Award Bioreactors 550,000
Rough Grading Completed 600,000
Milestone-4 10/31/96 Roofing Contract Awarded 600,000 3,068,753
Moblization Complete 600,000
Substantial Start of
Structural Steel 600,000
Deep Foundations Completed 668,753
Site Preparation Complete 600,000
Milestone-5 11/30/96 Substantial Start of U/G
Piping 653,678 3,053,678
Substantial Start of Struct-
ural Steel for Elevated
Slabs 600,000
Substantial Start of U/G
Electrical 600,000
Masonry Contract Awarded 600,000
Substantial Start of Roofing 600,000
Milestone-6 12/31/96 Building Foundations 3,470,623
Complete 700,000
Structural Steel for
Elevated Slabs Complete 700,000
Substantial Start of
Exterior Siding 700,000
Substantial Start of
Elevated Slabs 670,623
Substantial Start of Slab on
Grade 700,000
Milestone-7 1/31/97 Substantial Start of
Building Electrical 750,000 3,735,216
Substantial Start of
Equipment Installation 750,000
Substantial Start of
Interior Finishes 750,000
Substantial Start of
Instrumentation 750,000
Substantial Start of HVAC
Ductwork Installation 735,216
Milestone-8 2/28/97 Structural Steel Complete 750,000 3,700,699
Slab On Grade Complete 750,000
U/G Piping Complete 750,000
Elevated Slabs Complete 750,000
Equipment Foundations &
Platforms Complete 700,699
Milestone-9 3/31/97 Roofing Complete 600,000 3,027,993
Exterior Finishes Complete 600,000
Building Dried In 600,000
Substantial Start of Fire 627,993
Protection IQ/OQ Development
Complete 600,000
Milestone-10 4/30/97 Paving/Landscaping Contract
Awarded 600,000 2,894,999
HVAC Ductwork 50% Complete 600,000
Fire Protection 50% Complete 600,000
Building Electrical 50% Complete 600,000
Substantial Start of Cold
Boxes Installation 494,999
Milestone-11 5/31/97 Fire Protection Complete -
Except Heads 550,000 2,407,894
Process Electrical 50%
Complete 550,000
Equipment Installation 50%
Complete 507,894
Process & Utility Piping 50%
Complete 500,000
Instrumentation Installation
50% Complete 300,000
Milestone-12 6/30/97 Substantial Start of 600,000 2,439,936
Painting
Landscape/Site Paving
Contract Awarded 500,000
Interior Architectural 50%
Awarded 500,000
Installation of "Cold Boxes"
Complete 539,936
Equipment Installation 75%
Complete 300,000
Milestone-13 7/31/97 Substantial Start of
Validation Field Service 553,032 2,353,032
Building Electrical Complete 500,000
Substantial Start of 500,000
Landscape/Site Paving
HVAC Installation Complete 500,000
Substantial Start of
Insulation 300,000
Milestone-14 8/31/97 Equipment Installation
Complete 200,000 1,142,674
Process Electrical Complete 200,000
Validation Services - I/Q/OQ
20% Complete 242,674
Substantial Start of Start-
Up Services 300,000
HVAC Testing And Balancing
Complete 200,000
Milestone-15 9/30/97 Manufacturing Facility
Mechanically Complete 90,000 404,876
Insulation Complete 90,000
Instrumentation Complete 90,000
Interior Architectural
Finishes Complete 90,000
Validation Services IQ/OQ
40% Complete 44,876
Milestone-16 10/31/97 Validation Services - IQ/OQ
60% Complete 92,994 185,988
Start-Up 50% Complete
92,994
Milestone-17 11/30/97 Validation Services - IQ/OQ
80% Complete 176,251 176,251
Start-up Services Complete
Milestone-18 12/31/97 Project Validation Complete 179,554 179,554
----------
42,500,000
==========
EXHIBIT B-1
LETTER OF CREDIT DRAFT IN LIEU OF RETENTION SAMPLE
ISSUING BANK: A1 CREDIT BANK
COMPLETE ADDRESS
BENEFICIARY: FULL CLIENT NAME
COMPLETE ADDRESS
ATTN: CONTACT NAME
AT THE REQUEST AND FOR THE ACCOUNT OF (FLUOR ENTITY),
_____________________, WE HEREBY ISSUE THIS IRREVOCABLE STANDBY
LETTER OF CREDIT IN THE AMOUNT OF __________________________
($________), WHICH IS AVAILABLE AGAINST SIGHT DRAFT(S) OF THE
BENEFICIARY BEARING THE CLAUSE "DRAWN UNDER IRREVOCABLE STAND-BY
LETTER OF CREDIT NUMBER _______________" AND ACCOMPANIED BY THE
FOLLOWING DOCUMENTS:
1. A CERTIFICATE DATED AND SIGNED BY A PURPORTED AUTHORIZED
OFFICER OF THE BENEFICIARY STATING: "WE CERTIFY THAT THE
AMOUNT OF OUR DRAWING UNDER LETTER OF CREDIT NUMBER
______________ IS DUE US AS (FLUOR ENTITY) IS IN DEFAULT OF
ITS OBLIGATIONS WITH US UNDER CONTRACT NO. ____________
DATED _________________________."
2. A CERTIFICATE DATED AND SIGNED BY A PURPORTED AUTHORIZED
OFFICER OF THE BENEFICIARY STATING: "WE CERTIFY THAT THE
AMOUNT OF THE DRAFT PRESENTED DOES NOT EXCEED THE GREATER OF
THE AMOUNT ALLOWED PURSUANT TO ARTICLE _____, PARAGRAPH ____
OF SAID CONTRACT OR THE AMOUNT IN DISPUTE LESS ANY AMOUNTS
PREVIOUSLY DRAWN UNDER THIS LETTER OF CREDIT.
3. A COPY OF THE LETTER DATED AT LEAST SEVENTY-TWO (72) HOURS
PRIOR TO THE DRAWING UNDER THIS LETTER OF CREDIT ADDRESSED
TO (FLUOR ENTITY) READING AS FOLLOWS: "WE HEREBY INDICATE
OUR INTENTION TO DRAW UNDER ___________ BANK LETTER OF
CREDIT NO. ___________."
WE ENGAGE WITH YOU THAT ALL DRAFTS DRAWN UNDER AND IN COMPLIANCE
WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON
DELIVERY OF DOCUMENTS AS SPECIFIED IF PRESENTED AT THIS OFFICE ON
OR BEFORE DECEMBER 31, 1998.
PARTIAL DRAWINGS ARE PERMITTED.
ALL AMOUNTS DRAWN IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF
THIS LETTER OF CREDIT WILL BE TRANSFERRED BY WIRE TRANSFER INTO
THE BENEFICIARY'S ACCOUNT NUMBER _____________ IN
_____________________________(BANK). ABA
NO.______________________________________(CITY),_________________
____(STATE).
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND
PRACTICES FOR DOCUMENTARY CREDITS (1983 REVISION). INTERNATIONAL
CHAMBER OF COMMERCE PUBLICATION 500.
EXHIBIT "C"
SCHEDULE OF REIMBURSABLE COSTS
I. LABOR AND CERTAIN OVERHEAD COSTS
A. Home Office and Validation Personnel
The services of all Fluor ▇▇▇▇▇▇ personnel, including of
Engineering, Validation, and Home Office Support for
Construction [other than (i) Field Salaried Personnel and
(ii) Field Craft Personnel], which personnel are
hereinafter referred to as "Home Office Personnel", will be
invoiced on an hourly basis at the billing rates set forth
in the attached Home Office Labor Rate Schedule. These
rates will increase by six percent (6%) on June 1, 1997,
and will be subject to further revision on each year
thereafter.
B. Field Personnel
1. Field Salaried Personnel
The services of all Fluor ▇▇▇▇▇▇ salaried and contract
agency personnel who are permanently assigned to the
Project site, which personnel are hereinafter referred to
as "Field Salaried Personnel", will be invoiced on an
hourly basis at their actual base compensation multiplied
by a multiplier of (CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED). This multiplier will be subject to revision on
June 1, 1997 and on each year thereafter.
2. Field Craft Personnel
The services of all of Fluor Daniel's hourly personnel
who are permanently assigned to the Project Site, which
personnel are hereinafter referred to as "Field Craft
Personnel", will be invoiced on an hourly basis at their
actual base compensation multiplied by a multiplier of
(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED). This
multiplier will be subject to revision on June 1, 1997 and
on each year thereafter.
C. Certain Home Office Overhead Costs
The costs set forth above for Home Office Personnel
include the following overhead costs:
Payroll taxes and insurance;
Group hospitalization insurance;
Employer's liability insurance;
Vacation, holiday and sick leave time;
Normal home and branch office rents;
Home Office personnel administration;
Home Office light, heat, water, local telephone;
Home Office furniture and equipment;
Home Office general office supplies;
Home Office general business taxes and licenses; and
Non-project accounting and in-house legal
services rendered by internal Fluor ▇▇▇▇▇▇ personnel.
An additional charge of $(CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED) per hour will be billed for all hours worked at the
home office by Home Office Personnel to cover the following home
office overhead costs:
Word Processing equipment
Blueprinting and other reproductions
Shipping and postage costs
Personal computer time and program charges
Telegrams, teletype, facsimiles and long
distance telephone calls
Consumable engineering supplies
II. OTHER REIMBURSABLE COSTS (NON-LABOR)
Owner shall pay Fluor ▇▇▇▇▇▇, at actual or scheduled cost,
for the following costs reasonably incurred by Fluor ▇▇▇▇▇▇
in connection with the Purchasing Agreement:
i) Materials and Equipment. The cost of materials,
machinery, equipment, supplies, parts and miscellaneous
services purchased by Fluor ▇▇▇▇▇▇.
ii) Transportation of Materials, Machinery and
Equipment. The cost of all transportation expenses for
materials, machinery, tools and equipment including the
cost of loading, hauling, unloading and insurance.
iii) Travel and Relocation Expenses. The cost of
transportation, travel, relocation and/or per diem
expenses and other related expenses for Fluor ▇▇▇▇▇▇
personnel in accordance with Fluor ▇▇▇▇▇▇=s established
policies.
iv) Taxes. The cost of any duties, taxes or licenses,
other than taxes on Fluor Daniel's net income.
v) Compliance With Laws. All costs (including
attorneys fees) incurred in connection with compliance
with statutes, rules, regulations, ordinances, orders and
other laws.
vi) Purchase Orders and Contracts. All costs of and
arising out of subcontracts, purchase orders, contracts
and other agreements entered into by Fluor ▇▇▇▇▇▇.
vii) Audits, Monitoring and Accounting. The cost of
audits and similar programs monitoring the financial or
other aspects of the Purchase Agreement.
viii)Litigation and Related Costs. The cost of
attorneys' fees, costs, settlements and judgements
incurred in connection with any labor or commercial
matters, litigation, claims or disputes (except between
Owner and Fluor ▇▇▇▇▇▇) arising out of or in connection
with the Purchase Agreement.
ix) Miscellaneous Expense. Miscellaneous expenses,
such as custom forms, freight, express, duties, and other
costs and expenses incurred in connection with the
Purchasing Agreement.
HOME OFFICE LABOR RATE SCHEDULE
The services of Home Office Personnel utilized for the Services
will be invoiced on an hourly basis at the following hourly
billing rates:
General Hourly Description Billing Rates
---------------------------------------------------------------
Billing
Code Billing Classification Labor Rate
01 Information Records Clerk* *
02 Word Processing Technician I* *
03 Engineering Aide I* *
04 Secretary II* *
05 Industrial Relations Tech II* *
06 Lead Data Control Tech* *
07 Procurement Specialist I* *
08 Sr. Engineering Technician II* *
09 Procurement specialist II* *
10 Construction Technician II* *
11 Senior Inspector* *
13 Accountant I *
14 Associate Engineer I *
15 Engineering coordinator I *
16 Associate Engineer II *
17 Administrative Manager *
18 Engineer *
19 Architect II *
20 Engineer II *
21 Senior Engineer *
22 Principal Engineer *
23 Director *
90 Drafter I* *
91 Drafter II* *
92 Drafter III* *
93 Drafter IV* *
94 Designer I* *
95 Designer II* *
96 Senior Designer II* *
97 Principal Designer* *
98 Design Supervisor *
99 Senior Design Supervisor *
Hours worked for the project in excess of 8 hours per day or 40
hours per week by an individual in classifications with a billing
code with an asterisk will be invoiced at the rate shown above
plus of (CONFIDENTIAL TREATMENT HAS BEEN REQUESTED) percent; all
hours worked for the project by individuals in other
classifications will be invoiced at the rate shown above.
Contract agency employees will be billed at a of (CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED) multiplier of the actual amount
invoiced to Fluor ▇▇▇▇▇▇.
*CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
