Stipulated Sum Agreement - MedImmune Inc. and HITT Contracting Inc.
STIPULATED SUM AGREEMENT
between
MedImmune, Inc. and Contractor
AGREEMENT
Made this 28 day of June in the year 2002 BETWEEN MedImmune, Inc., of Gaithersburg, Maryland (MedImmune) and HITT Contracting Inc. of Fairfax, Virginia ("the Contractor") MedImmune and the Contractor agree as set forth below.
ARTICLE 1
THE CONTRACT DOCUMENTS
The Contract Documents consist of the Agreement, any Exhibits attached hereto, Drawings, Specifications, all Addenda issued prior to execution of the Agreement and all Modifications issued subsequent thereto. These form the Contract, and all are as fully a part of the Contract as if attached to the Agreement or repeated herein. An enumeration of the Contract Documents appears in Paragraph 8.3.
ARTICLE 2
THE WORK
The Contractor shall perform all the Work required by the Contract Documents, namely: The Contractor shall perform general construction for the MedImmune, Inc. Administration / R&D Campus Project, Phase I, Site Work, Core and Shell.
ARTICLE 3
PROJECT MANAGER
The Project Manager for this Project is (CONFIDENTIAL TREATMENT REQUESTED), of MedImmune, Inc. The Contractor must take all direction from the Project Manager.
ARTICLE 4
TIME OF COMMENCEMENT AND COMPLETION
Time is of the essence with regard to this Contract. The Work to be performed under this Contract shall be commenced March 14, 2002 (Notice to Proceed date), and completed on or before (CONFIDENTIAL TREATMENT REQUESTED).
(Below insert any special provision for liquidated damages relating to failure to complete on time.) The above completion date represents the date a certificate of occupancy is obtained for core and shell. The Contractor shall expend premium time, at no cost to MedImmune, Inc., to preserve this date.
ARTICLE 5
CONTRACT SUM
MedImmune shall pay the Contractor for the performance of the Work, subject to additions and deductions by Change Order as provided in Article 12, in current funds, the Contract sum of: (CONFIDENTIAL TREATMENT REQUESTED).
ARTICLE 6
PROGRESS PAYMENTS
Based upon request for payment, including final or partial Waiver of Lien, submitted to the Project Manager by the Contractor and certification for payment issued by the Project Manager, MedImmune shall make progress payments on account of the Contract Sum to the Contractor as provided in the Conditions of the Contract as follows:
On or about the tenth day of each month,
(i) (CONFIDENTIAL TREATMENT REQUESTED) of the proportion of the Contract Sum allocable to labor, materials and equipment incorporated in the Work, less the aggregate of previous payments; and
(ii) That portion of the Contract Sum allocable to materials and equipment suitably stored (as to which all vendor security interests have been released) at the site up to the 1st day of that month less the aggregate of previous payments.
(iii) All approved progressive payments shall be paid within 30 days of receipt of the invoice by the owner.
Upon Substantial Completion of the entire Work, a sum sufficient to increase the total payments to the Contract Sum, less amount retained, as the Project Manager shall determine, for all incomplete work and unsettled claims.
(Below insert any provisions made for limiting or reducing the amount retained after the Work reaches a certain stage of completion.)
Not Applicable
ARTICLE 7
FINAL PAYMENT
Final payment, constituting the entire unpaid balance of the Contract Sum, shall be paid by MedImmune to the Contractor 30 days after Substantial Completion of the Work, unless otherwise stipulated in the Certificate of Substantial Completion, provided the Work has then been completed, the Contract fully performed, and a final certification for payment has been issued by the Project Manager.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 Terms used in this Agreement which are defined in the Conditions of the contract shall have the meaning designated in those Conditions.
8.2 The Contractor agrees to reimburse MedImmune for any expenses incurred by MedImmune as a result of any mechanics lien or liens asserted against MedImmune's property by anyone furnishing materials or rendering services in the execution of the Work which is the subject of this Contract, provided MedImmune is not in default on any payments to the Contractor in accordance with the terms hereof at the time of filing any such mechanics lien or liens; and MedImmune may retain from any amount due the contractor such amounts as may be reasonably required to reimburse it for any such expense, and apply the same against any such expense incurred, provided MedImmune has otherwise paid the contractor all the amounts due it in accordance with the terms hereof.
8.3 The Contract Documents, which constitute the entire agreement between MedImmune and the Contractor, are listed in Article 1 and, except for modifications issued after execution of this Agreement are enumerated as follows:
(List below the Agreement, Conditions of the contract [General, Supplementary, Safety Regulations, and other Conditions], Drawings, Specifications, Addenda and accepted Alternates, showing page or sheet numbers in all cases and dates where applicable.)
(1) General Conditions of the Contract for Construction, AIA Document A201-1997, 1997 Edition-Electronic Format, Fifteenth Edition, 40 pages, attached; (2) MedImmune, Inc. Supplementary General Conditions to the General Conditions of the Contract for Construction. AIA Document A201, 1997 Version, Revised 11/01, 7 pages, attached; (3) MedImmune, Inc. R&D/Admin Project Request for Proposal Site Work, Core & Shell, 11-15-01, 14 pages, attached - Note that Attachment 1 of this attachment (MEDCO Purchase Order Form) is omitted and is not included in this contract; (4) Contract Addendum #1 MedImmune, Inc. Change Order Handling Procedure R&D/Admin Project, January 4, 2002, 1 page, attached; (5) HO+K Memorandum from Jon Hoffscheider- Revised Bid Items: Conformed "Revision Zero" Construction Set for Base Building: MedImmune: Phase I - R&D and Admin. Campus, May, 14, 2002 3 pages, attached; (6) HO+K Fax Transmittal from Walt Urbanck to the attention of Curtis Rakosi of HITT, Brian Rose of Clark, Tim Regan of Whiting-Turner, January 4, 2002, 26 pages, attached; (7) HITT MedImmune, Inc. Administration and Research & Development Campus, Gaithersburg, Maryland, Exceptions to the Contract Document Scope, 4 Feb 02, 8 pages, attached; (8) HITT Bid Proposal MedImmune, Inc. Research and Development/Administration Campus, Final Bid Form, 1/9/02, 1 page, attached; (9) HITT Bid Proposal MedImmune, Inc. Research and Development/Administration Campus Scope of Work, 1/10/02, 5 pages, attached; (10) HITT Letter from Jonathan Cadle, MedImmune - Phase 1 (Core & Shell), Breakdown of Contract Value, June 27, 2002 1 page, attached; (11) HO+K Transmittal from Jon Hoffschneider, Conformed "Revision Zero" Construction Set for Base Building: MedImmune: Phase 1 - R&D and Admin. Campus, February 5, 2002, 1 page, attached; (12) MedImmune Specification List - 3/23/02, 5 pages, attached; (13) MedImmune Drawing List - 3/23/02, 7 pages, attached (14) HITT MedImmune Cost Loaded Schedule 5/30/02, 71 pages, attached (15) Syska & Hennessy, Inc. Memorandum from Karl Decker, MedImmune Core & Shell Addendum 5, Pre-Award Clarifications dated 1/15/02, 4 pages, attached
8.4 The contractor shall be responsible for compliance with all OSHA, and all other Federal, State, Local and facility safety and security regulations.
ARTICLE 9
INTENT
The intent of these documents is to include all labor, material, appliances and services of every kind necessary for the proper execution of the Work and the terms and conditions of payment thereof.
The documents are to be considered as one, and whatever is called for by any one of the documents shall be as binding as if called for by all. In the event of any inconsistency between the provisions of any Contract Documents, the provisions of the Supplementary General Conditions (if any) shall prevail over the provisions of this and/or any General Conditions.
ARTICLE 10
PROTECTION OF WORK, PROPERTY AND PERSONS
The Contractor shall adequately protect the Work, adjacent property and the public and shall be responsible for any damage or injury due to its act or neglect.
ARTICLE 11
INSPECTION OF WORK
The contractor shall permit and facilitate inspection of the Work by MedImmune and its agents and public authorities at all times.
ARTICLE 12
CHANGES IN THE WORK
MedImmune may order changes in the Work, the contract sum being adjusted accordingly. All such orders and adjustments shall be in writing. Claims by the Contractor for extra cost must be made in writing before executing the Work involved.
When MedImmune orders changes to the work, the Contractor shall not be entitled to any additional General Conditions or Fee, nor shall its Subcontractors until the total aggregate sum of all approved MedImmune initiated changes exceeds (CONFIDENTIAL TREATMENT REQUESTED). If in the event the total aggregate sum of all approved MedImmune initiated changes exceeds (CONFIDENTIAL TREATMENT REQUESTED), then the Contractor and its Subcontractors shall each be entitled to add (CONFIDENTIAL TREATMENT REQUESTED)additional General Conditions and (CONFIDENTIAL TREATMENT REQUESTED)additional Fee of the cost of the work associated with the approved change.
When MedImmune orders changes to the work, the following unit prices shall be used:
Item Description Unit Prices
1 Import, Place and Compact Suitable Soils * * *
2 Export Unsuitable Soils * * *
3 Export Excess Construction Debris * * *
4 Rock Excavation Premium (No Blasting) * * *
5 On-Site Excavation * * *
6 Concrete Sidewalk - 5' wide * * *
7 Furnish / Install 10" waterline (4' depth) * * *
8 Furnish / Install 10" Sewer (10' depth) * * *
9 Furnish / Install Segmental Block Retaining Wall (3' ht) * * *
10 Furnish / Install Segmental Block Retaining Wall (5' ht) * * *
11 Concrete Curb and Gutter * * *
12 Bituminous Pavement - Light Duty * * *
13 Bituminous Pavement - Heavy Duty * * *
14a Sediment Control: Earthwork Dike (A-1) * * *
14b Sediment Control: Silt Fence * * *
14c Sediment Control: Super Silt Fence * * *
14d Sediment Control: Construction Entrance * * *
ARTICLE 13
CORRECTION OF WORK
The Contractor shall re-execute any work that fails to conform to the requirements of the contract and that appears during the progress of the Work, and shall remedy any defects due to faulty materials or workmanship which appear within a period of one year from the date of completion of the contract at no cost to MedImmune. The provisions of this article apply to work done by subcontractors as well as to work done by employees of the Contractor.
ARTICLE 14
MEDIMMUNE'S RIGHT TO TERMINATE CONTRACT
Should the Contractor neglect to prosecute the Work properly, or fail to perform any provision of the contract, MedImmune, after seven days' written notice to the contractor and its surety, if any, may, without prejudice to any other remedy it may have, make good the deficiencies and may deduct the cost thereof from the payment then or thereafter due the Contractor, or, at its option, may terminate the contract and take possession of all materials, tools, and appliances, and finish the Work by such means as it sees fit, and if the unpaid balance of the contract price exceeds the expense of finishing the Work, such excess shall be paid to the Contractor, but if such expense exceeds such unpaid balance, the contractor shall pay the difference to MedImmune.
ARTICLE 15
CONTRACTOR'S RIGHT TO TERMINATE CONTRACT
Should the work be stopped by any public authority for a period of thirty days or more, through no fault of the contractor, or should the work be stopped through act or neglect of MedImmune for a period of fourteen days, or should MedImmune fail to pay the Contractor any payment within ten days after it is due, then the Contractor, upon seven days' written notice to MedImmune, may stop work or terminate the contract and recover from MedImmune payment for all work executed together with reasonable profit and costs of demobilization.
ARTICLE 16
PAYMENTS
Payments shall be made as provided in the agreement. The making and acceptance of the final payment shall constitute a waiver of all claims by MedImmune, other than those arising from unsettled liens or from faulty work appearing thereafter, as provided for under "correction of work": and of all claims by the Contractor except any claims previously made and still unsettled. Payments otherwise due may be withheld on account of defective work not remedied, liens filed, damage by the Contractor to others not adjusted, or failure by the Contractor to make payments properly to subcontractors or for material or labor.
ARTICLE 17
SEPARATE CONTRACTS
MedImmune has the right to let other contracts in connection with the work and the Contractor shall properly cooperate with any such other contractors.
ARTICLE 18
INDEMNIFICATION
The Contractor shall, at all times, remain an independent contractor, and shall not be considered a representative of, or agent of, MedImmune. To the fullest extend permitted by law, the Contractor shall indemnify and hold harmless MedImmune, its agents and employees, from and against claims, damages losses and expenses, included, but not limited to, attorney's fees arising out of or resulting from performance of the Work.
ARTICLE 19
INSURANCE
19.1 The Contractor, prior to the commencement of any Work under the Contract, shall purchase, and until completion of the Work, shall maintain, such insurances as will protect it and MedImmune from all claims which may arise out of or result from the contractor's performance under the Contract, whether such performance be by itself or by one or more Subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable.
19.2 The insurance required under paragraph 19.1 shall be written for not less than any limits of liability specified herein or as required by law, whichever is greater, said insurance to include, without limitation, the following:
A. Insurance for liability under the worker's compensation or occupational disease laws of any state or other jurisdiction in which Work under the contract is performed (or be a qualified self-insurer in those states and jurisdictions) or otherwise applicable with respect to persons performing Work hereunder and employer's liability insurance covering all claims by or in Respect to the employees of the contractor and all Subcontractors, providing:
a. Coverage for the statutory limits of all claims under the applicable State Workers' Compensation Act or Acts. If the Work will result in exposures under the U.S. Longshoremen's and Harbor Workers Act and its amendments, the Jones Act or the Federal Employer's Liability Act coverage shall be extended to include those laws;
b. Employers Liability Insurance with a limit of not less than (CONFIDENTIAL TREATMENT REQUESTED); and
c. Voluntary compensation insurance covering all employees not subject to the applicable Workers' Compensation Act or Acts.
B. Comprehensive General Liability Insurance (including watercraft liability coverage if the Work is on or near water), with a combined single limit of not less than (CONFIDENTIAL TREATMENT REQUESTED) for each occurrence involving personal injuries and/or property loss or damage during the term of the Contract covering the Work herein described, such insurance to include, without limitation:
a. Coverage extensions for completed Operations, Blanket Contractual Liability, Independent contractors and SCU;
b. A standard endorsement to its Comprehensive General liability policy naming MedImmune as an additional insured under said policy with respect to any contingent or indirect legal liability of MedImmune arising out of the contractor's performance hereunder; and
c. Specific coverage for contractual liability assumed buy contractor under the indemnification agreement contained in the Contract.
C. Comprehensive Automobile and Truck Liability Insurance covering all automotive equipment used in the operations, with a combined single limit of not less than (CONFIDENTIAL TREATMENT REQUESTED)for each occurrence involving a personal injuries and/or property damage.
D. The Contractor shall procure and maintain Umbrella (Excess) Liability coverage for the Comprehensive General Liability, Comprehensive Automobile Liability and Employer's Liability, noted above, in an amount of not less than (CONFIDENTIAL TREATMENT REQUESTED).
E. The contractor will permit no Subcontractor to enter upon or continue the performance of the Work unless such Subcontractor is and remains insured in accordance with requirements which shall be specified by the Contractor in Subcontractor agreements approved by MedImmune. The contractor shall indemnify MedImmune for any loss suffered by it for the contractor's failure to require any such Subcontractor to be so insured.
F. Certificates of Insurance acceptable to MedImmune shall be filed with MedImmune prior to the commencement of the Work. These Certificates shall contain a provision that coverages afforded under the policies will not be cancelled or modified until at least thirty days prior written notice has been given to MedImmune. The compliance by the Contractor with insurance requirements in paragraph 19.1 shall not relieve the Contractor from Liability under the indemnification provision of the Contract.
19.3 MedImmune shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the project is located, property insurance covering the entire work at the site on a replacement cost basis. Such property insurance shall be maintained until final payment has been made as provided in the contract. This insurance shall include the interests of MedImmune, the contractor and Subcontractors in the Work, as their interests may appear.
19.4 MedImmune and contractor hereby agree to obtain waivers of any subrogation rights of their insurers for any loss including, without limitation, loss of use and all consequential damages thereof, resulting from risks to be insured under this Section.
19.5 MedImmune shall purchase and maintain such Boiler & Machinery insurance as may be required by the contract Documents or by law. This insurance shall include the interests of MedImmune, the Contractor and Subcontractors in the Work, as their interest may appear.
ARTICLE 20
ARBITRATION
All claims or disputes arising out of this Contract or the Breach thereof shall be decided by arbitration in accordance with the contraction Industry Arbitration Rules of the American Arbitration Association unless the parties mutually agree otherwise. Notice of the demand for arbitration shall be filed in writing with the other party to the contract and with the American Arbitration Association and shall be made within a reasonable time after the dispute has arisen.
In Witness Whereof, the parties hereto executed this agreement as of the day and year first above written.
MEDIMMUNE, INC. HITT Contracting Inc.
By /s/ Randall M. Turner By /s/ Reginald J. Arnold, II
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Signature Signature
Randall M. Turner Reginald J. Arnold, II
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Print Name Print Name
V.P. Engineering and Facilities Executive Vice President
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Title Title
July 5, 2002 August 7, 2002
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Date Date