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SEC Filings

ATHENEX, INC. filed this Form 10-Q on 05/09/2019
Entire Document


§ A. Except with the Owner’s prior approval, the Design-Builder shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site.

§ A.1.5.2 Not used.


§ A.1.5.3 Not used.


§ A.1.5.4 Progress Payments—Cost of the Work Plus a Fee with a Guaranteed Maximum Price


§ A. Applications for Payment where the Contract Sum is based upon the Cost of the Work Plus a Fee with a Guaranteed Maximum Price shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the Design-Builder on account of that portion of the Work for which the Design-Builder has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.

§ A.​Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows:


.1    Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 6.3.9 of the Agreement.

.2    Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing;

.3    Add the Design-Builder’s Fee, less retainage of ten percent ( 10 %). The Design-Builder’s Fee shall be computed upon the Cost of the Work at the rate stated in Section A.1.4.2 or, if the Design-Builder’s Fee is stated as a fixed sum in that Section, shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work bears to a reasonable estimate of the probable Cost of the Work upon its completion;

.4    Unless noted otherwise in the individual subcontract(s) or purchase order(s), the subtract retainage of  ten  percent ( 10 %) from that portion of the Work that the Design-Builder self-performs;

.5    Subtract the aggregate of previous payments made by the Owner;

.6    Subtract the shortfall, if any, indicated by the Design-Builder in the documentation required by Section A. to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner’s auditors in such documentation; and

.7    Subtract amounts, if any, for which the Owner has withheld or nullified a payment as provided in Section 9.5 of the Agreement.

§ A. The Owner and Design-Builder shall agree upon (1) a mutually acceptable procedure for review and approval of payments to the Architect, Consultants, and Contractors and (2) the percentage of retainage held on agreements with the Architect, Consultants, and Contractors; and the Design-Builder shall execute agreements in accordance with those terms.


§ A.  The Owner agrees that Design-Builder’s subcontractor, The Pike Company (“Pike”) is entitled to a fee (“Pike’s Fee”)  based on Pike’s management of the Civil/Structural and Architectural scopes of Work (“Pike’s Scope”). Pike’s fee is a Not to Exceed amount of $1,350,000 M USD (one million three-hundred and fifty thousand dollars), and is itemized in the GMP breakdown sheet in Exhibit 1, dated March 1, 2019. The Parties agree that Pike’s Fee as stated herein is separate and in addition to the consultant management fee in an amount not to exceed $3,061,360 as referenced in § 4.1 of Design Builder’s subcontract with Pike dated December 12, 2018. The Parties hereto further understand and agree that Pike’s Fee is separate and independent from Design-Builder’s Fee. Design-Builder shall compensate Pike for Pike’s Fee, provided however, that Owner shall pay Design-Builder for the full amount of Pike’s Fee, and such amount paid by  the Owner shall equal the amount that Design-Builder pays for Pike’s Scope of services.