Construction Management Agreement - Hycel Properties Co. and Build-A-Bear Workshop Inc.
HYCEL PROPERTIES CO.
HYCEL RETAIL CROUP
7817 Forsyth Blvd.
St. Louis, MO 63105-3307
Telephone 314 721-4800
Facsimile 314 721-3663
CONSTRUCTION MANAGEMENT AGREEMENT
THIS AGREEMENT is made and entered into this 16th day of November 2003, by and
between Hycel Properties Co., a Missouri corporation ("Hycel"), and Build-A-Bear
Workshop, Inc., a Missouri Corporation (the "Company").
RECITALS
WHEREAS, Hycel and the Company have entered into an agreement for Hycel to
provide real estate consulting services to the Company; and
WHEREAS, Hycel has offered to provide construction management services to the
Company for the construction of the Company's Build-A-Bear Workshop stores; and
WHEREAS, the Company desires to have Hycel provide construction management
services to the Company,
NOW THEREFORE, in consideration of the mutual covenants hereinafter exchanged,
it is agreed as follows:
1. Construction Management Services
Hycel will provide the following services in connection with the
construction of the Company's new stores:
(a) Design/Plan Review
Hycel will work closely with the Company's architect and
engineers to assist in the development of a detailed set of
architectural and engineering drawings and specifications.
Upon receipt of the architectural and engineering drawings
from the Company's architect, as-builts from the previous
tenant build-out, landlord's tenant design criteria and the
lease sections relating to construction, Hycel's personnel
will review the drawings before submittal to the landlord and
for building permit.
(b) Bidding & Permits
Hycel will prepare bid forms and invitation to bid letters to
accompany the architectural and engineering drawings to be
distributed to selected general contractors the Company has
approved to handle the general construction of the space as
well as for all millwork, theming, signage, graphics and other
special equipment. Applications for building permits will be
made as well as the
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submittal for landlord approval. Bids will be evaluated and a
recommendation will be provided to the Company. A contract
will be prepared for the general contractor with the Company's
approval.
(c) Construction Supervision
Hycel's personnel will monitor the day-to-day activities of
the general contractor and coordinate scheduling and material
and equipment deliveries. Discrepancies, field conditions and
requests for additional information will be handled and
resolved. Periodic visits to the project will be made from
pre-construction through the construction phase of the project
to monitor progress and quality.
(d) Punchlist/Close-Out
A final visit to the project will be made upon substantial
completion of construction. A punchlist will be prepared
noting all items not completed or requiring rework to make the
store ready for occupancy and operation.
(e) Pay Request Review
All requests for payment, including change orders, will be
reviewed and evaluated. Lien waivers will be obtained,
reviewed and compared to the pay requests. All required
documentation from the general contractor and equipment,
fixture and other suppliers, including the completion of
punchlist items, will be obtained. Hycel will advise the
Company that the contractor may be paid.
2. Fees and Reimbursement of Expenses
(a) As compensation for Hycel's services under this Agreement, the
Company shall pay, or cause to be paid, to Hycel a fee (the
"Construction Management Fee") of:
Two Hundred Fifty-Two Thousand Dollars ($252,000). This
fee is for up to 15 stores and a store in Manhattan, New
York, which shall count as three (3) stores for a total
of eighteen (18) new stores. The parties agree that the
exact location of any store cannot be determined. Should
the company desire to utilize Hycel for additional
stores (more than 18 stores, or 15 stores and a store in
Manhattan, New York which shall count as 3 stores), the
Construction Management Fee will be Fourteen Thousand
Dollars ($14,000) per store and shall be paid 50% at the
start of construction and 50% upon the store opening
business.
<PAGE>
The Construction Management Fee outlined above shall be
paid as follows: Twelve (12) monthly payments of Twenty
One-Thousand and 00/100 Dollars ($21,000.00) on the
first of each month commencing January 2004 through
December 2004. Any additional stores shall be paid as
outlined above.
(b) The fee paid under paragraph 2(a) above does not include
changes to existing stores or trouble shooting. If the Company
requests additional store design or construction services not
covered in the scope of this Agreement, such services will be
billed to the Company monthly at the rate One Hundred
Twenty-Five Dollars ($ 125.00) per hour if such services are
performed by a senior construction staff member, at the rate
of Seventy-Nine Dollars ($79.00) per hour for a construction
crew staff member and at the rate of Fifty-Six Dollars
($56.00) per hour if such services are performed by support
staff to the construction staff member.
(c) The fee paid under paragraph 2(a) and 2(b) above does not
cover expenses. In addition, the Company shall pay all
out-of-pocket expenses of Hycel, however, travel and other
travel related expenses shall be reimbursed at their cost plus
overhead at ten percent (10%). Any single out-of-pocket
expense item in excess of $750.00 shall be pre-approved by the
Company. On a monthly basis, the Company will reimburse the
expenses within ten (10) days after receipt of an invoice.
3. Term
The term of this agreement shall commence on January 1, 2004 and
shall terminate on December 31, 2004. If Hycel's personnel have
provided construction management or other services prior to the
termination of this Agreement, the fees and expenses referred to
above will be due and payable upon the completion of construction,
as the case may be. Any of the Company's obligations that have
accrued prior to the termination of this Agreement shall survive the
termination of this Agreement.
4. Assignment
This Agreement shall not be assigned by either the Company or Hycel
without the prior written consent of the other party, such consent
not to be unreasonably withheld; provided, however, if requested by
Hycel, the Company will consent to the assignment of this Agreement
to another entity so long as Hycel or Mark H. Zorensky owns at least
fifty percent (50%) interest in such entity.
<PAGE>
5. Disclaimer
The Company understands that Hycel does not purport to offer
architectural and engineering services or installation and
construction services (collectively "Construction Services"). The
Company shall contract for Construction Services and the Company
shall, at its cost, defend any claims against Hycel with respect to
said Construction Services. The Company shall pay, satisfy and/or
discharge any judgments, orders and decrees, which may be rendered
against Hycel in connection with the foregoing.
6. Claims
Hycel and the Company will indemnify, defend and save harmless the
other from and against all "Claims", as that term is defined, based
upon the indemnifying party's negligence or intentional misconduct.
As used herein, "Claims" shall mean all claims, suits, proceedings,
actions, demands, causes of action, responsibility, liability,
judgments, executions, damages, loss and expense (including
attorney's fees.)
7. Notices
All notices called for hereunder shall be deemed delivered one day
after having been posted in the United States mail, postage prepaid,
at the address shown on the signature page of this Agreement, which
address may be changed by either party by giving notice as called
for herein-
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first written above.
HYCEL PROPERTIES CO. BUILD-A-BEAR WORKSHOP, INC.
By: /s/ Mark H. Zorensky By: /s/ Brian Vent
------------------------ ------------------------
Mark H. Zorensky Name: BRIAN VENT
President Title: C.O.B.
7817 Forsyth Blvd. 1954 Innerbelt Business Center Dr.
St. Louis, MO 63105 St. Louis, MO 63114
<PAGE>
CONSTRUCTION MANAGEMENT AGREEMENT
THIS AGREEMENT is made and entered into this 9th day of October 2001, by and
between Hycel Properties Co., a Missouri corporation ("Hycel"), and Build-A-Bear
Workshop, Inc., a Missouri Corporation (the "Company").
RECITALS
WHEREAS, Hycel and the Company have entered into an agreement for Hycel to
provide real estate consulting services to the Company; and
WHEREAS, Hycel has offered to provide construction management services to the
Company for the construction of the Company's Build-A-Bear Workshop stores; and
WHEREAS, the Company desires to have Hycel provide construction management
services to the Company,
NOW THEREFORE, in consideration of the mutual covenants hereinafter exchanged,
it is agreed as follows:
1. Construction Management Services
Hycel will provide the following services in connection with the
construction of the Company's new stores:
(a) Design/Plan Review
Hycel will work closely with the Company's architect and
engineers to assist in the development of a detailed set of
architectural and engineering drawings and specifications.
Upon receipt of the architectural and engineering drawings
from the Company's architect, as-builts from the previous
tenant build-out, landlord's tenant design criteria and the
lease sections relating to construction, Hycel's personnel
will review the drawings before submittal to the landlord and
for building permit.
(b) Bidding & Permits
Hycel will prepare bid forms and invitation to bid letters to
accompany the architectural and engineering drawings to be
distributed to selected general contractors the Company has
approved to handle the general construction of the space as
well as for all millwork, theming, signage, graphics and other
special equipment. Applications for building permits will be
made as well as the submittal for landlord approval. Bids will
be evaluated and a
See agreement dated Nov 10, 2003
<PAGE>
recommendation will be provided to the Company. A contract
will be prepared for the general contractor with the Company's
approval.
(c) Construction Supervision
Hycel's personnel will monitor the day-to-day activities of
the general contractor and coordinate scheduling and material
and equipment deliveries. Discrepancies, field conditions and
requests for additional information will be handled and
resolved. Periodic visits to the project will be made from
pre-construction through the construction phase of the project
to monitor progress and quality.
(d) Punchlist/Close-Out
A final visit to the project will be made upon substantial
completion of construction. A punchlist will be prepared
noting all items not completed or requiring rework to make the
store ready for occupancy and operation.
(e) Pay Request Review
All requests for payment, including change orders, will be
reviewed and evaluated. Lien waivers will be obtained,
reviewed and compared to the pay requests. All required
documentation from the general contractor and equipment,
fixture and other suppliers, including the completion of
punchlist items, will be obtained. Hycel will advise the
Company that the contractor may be paid.
2. Fees and Reimbursement of Expenses
(a) As compensation for Hycel's services under this Agreement, the
Company shall pay, or cause to be paid, to Hycel a fee (the
"Construction Management Fee") of:
Three Hundred Eighty-Two Thousand Two Hundred Dollars
($382,200.00). This fee constitutes payment for up to
thirty (30) new stores. The parties agree that the exact
location of any store cannot be determined. Should the
Company desire to utilize Hycel for additional stores
(more than 30 stores), the Construction Management Fee
will be Twelve Thousand One Hundred Thirty Three Dollars
($12,133.00) per store and shall be paid 50% at the
start of construction and 50% upon the store opening for
business.
The Construction Management Fee outlined above shall be
paid as follows: Twelve (12) monthly payments of Thirty
One-Thousand Eight Hundred Fifty Dollars and 00/100
($31,850.00) on the first of
<PAGE>
each month commencing January 2002 through December
2002. Any additional stores shall be paid as outlined
above.
(b) The fee paid under paragraph 2(a) above does not include
changes to existing stores or trouble shooting. If the Company
requests additional store design or construction services not
covered in the scope of this Agreement, such services will be
billed to the Company monthly at the rate One Hundred Four
Dollars ($104.00) per hour if such services are performed by a
senior construction staff member, at the rate of Seventy-One
Dollars ($71.00) per hour for a construction crew staff member
and at the rate of Fifty Dollars ($50.00) per hour if such
services are performed by support staff to the construction
staff member.
(c) The fee paid under paragraph 2(a) and 2(b) above does not
cover expenses. In addition, the Company shall pay all
out-of-pocket expenses of Hycel (including travel and other
travel related expenses) at their cost plus overhead at ten
percent (10%). Any single out-of-pocket expense item in excess
of $500.00 shall be pre-approved by the Company. On a monthly
basis, the Company will reimburse the expenses within ten (10)
days after receipt of an invoice.
3. Term
The term of this agreement shall commence on January 1, 2002 and
shall terminate on December 31, 2001. If Hycel's personnel have
provided construction management or other services prior to the
termination of this Agreement, the fees and expenses referred to
above will be due and payable upon the completion of construction,
as the case may be. Any of the Company's obligations that have
accrued prior to the termination of this Agreement shall survive the
termination of this Agreement.
4. Assignment
This Agreement shall not be assigned by either the Company or Hycel
without the prior written consent of the other party, such consent
not to be unreasonably withheld; provided, however, if requested by
Hycel, the Company will consent to the assignment of this Agreement
to another entity so long as Hycel or Mark H. Zorensky owns at least
fifty percent (50%) interest in such entity.
5. Disclaimer
The Company understands that Hycel does not purport to offer
architectural and engineering services or installation and
construction services (collectively "Construction Services"). The
Company shall contract for Construction Services and the Company
shall, at its cost, defend any claims against Hycel with respect to
<PAGE>
said Construction Services. The Company shall pay, satisfy and/or
discharge any judgments, orders and decrees, which may be rendered
against Hycel in connection with the foregoing.
6. Notices
All notices called for hereunder shall be deemed delivered one day
after having been posted in the United States mail, postage prepaid,
at the address shown on the signature page of this Agreement, which
address may be changed by either party by giving notice as called
for herein.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first written above.
HYCEL PROPERTIES CO. BUILD-A-BEAR WORKSHOP, INC.
By: /s/ Mark H. Zorensky By:[ILLEGIBLE]
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Mark H. Zorensky Name:
President Title:
101 South Hanley Road, Suite 1300 1954 Innerbelt Business Center Dr.
St. Louis, MO 63105 St. Louis, MO 63114