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EXHIBIT 8.14
AGREEMENT FOR CONSTRUCTION SERVICES
BETWEEN RETAMA DEVELOPMENT CORPORATION AS OWNER
AND CALL NOW, INC. AS CONTRACTOR AND XXXXXXX XXXXX,
INDIVIDUALLY, AS THIRD PARTY BENEFICIARY
("AGREEMENT")
1.0 PURPOSE
The purpose of this Agreement is to set forth the terms and conditions
under which Contractor will effect certain repairs to the larger
infield lake ("Lake") at the Retama Park Race Track in Selma, Bexar
County, Texas ("Racetrack"). The Owner represents that it is the Owner
of the Racetrack and Lake.
2.0 CONTRACT DOCUMENTS
All work to be performed by Contractor shall be in full compliance with
the requirements set forth in the contract documents. In case of any
inconsistency between this Agreement and any other contract documents,
this Agreement shall control. The contract documents, in order of
preference, consist of the following which are attached hereto or
incorporated herein by reference:
2.1 Agreement for Construction Services.
2.2 Xxxxxxxx Proposal.
2.3 Xxxxxxxx Plan.
2.4 Lien Waivers.
2.5 Change Order.
2.6 Certificate of Insurance.
2.7 Performance and Payment Bond.
3.0 SCHEDULE
3.1 Xxxxxxxx Proposal.
Contractor shall enter into a subcontract with Xxxxxxxx
Engineering, or such other engineering firm that the
Contractor may propose and that may be approved by the Owner,
for the purpose of developing a detailed proposal on whether
there is a
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reasonable and practical method for repair of the Lake so the
Lake will retain water at a generally fixed level for an
indefinite period, and if so, provide a detailed outline of
the method of repair. This proposal may herein be referred to
as the Xxxxxxxx Proposal.
3.2 The Contractor shall use its reasonable efforts to obtain the
Xxxxxxxx Proposal on or before April 30, 1999 (the "Proposal
Delivery Date").
3.3 The Owner shall have 15 days following the Proposal Delivery
Date to approve or disapprove the Xxxxxxxx Proposal. If the
Xxxxxxxx Proposal is approved, the Contractor shall proceed in
accordance with Section 3.6 below. If the Xxxxxxxx Proposal is
disapproved, the Owner will advise the Contractor specifically
of the specified deficiencies of the Xxxxxxxx Proposal and
allow the Contractor a period of no less than 15 days to make
revisions to the Xxxxxxxx Proposal and resubmit the Xxxxxxxx
Proposal to the Owner. Upon resubmission, the Owner will have
15 days to once again either approve or disapprove the
Xxxxxxxx Proposal as revised. If the Xxxxxxxx Proposal is
approved as revised, the Contractor will proceed in accordance
with Section 3.6 below. If the Xxxxxxxx Proposal is
disapproved, this Agreement shall terminate and neither party
shall have any further liability, one to the other, hereunder.
In that event, all claims, rights, and causes of action
between the parties shall be preserved to the extent they
existed on the date of this Agreement.
3.4 The Owner and the Contractor specifically acknowledge to each
other that this Agreement provides only for the Work specified
in the Xxxxxxxx Plans. Owner and Contractor have negotiated
this Agreement in settlement of disputed matters and recognize
and acknowledge for the purposes of this Agreement that
Contractor has made no guaranties within the scope of the
negotiated Work that the Lake will retain water to any
specified level for any period of time.
3.5 For the purposes of this Agreement, hereinafter the term
Xxxxxxxx Proposal shall mean the Xxxxxxxx Proposal as approved
by the Owner.
3.6 Within 60 days following approval of the Xxxxxxxx Proposal by
the Owner, the Contractor shall obtain the plans and
specifications drawn in accordance with and to implement the
Xxxxxxxx Proposal (the "Xxxxxxxx Plans").
3.7 Upon delivery of the Xxxxxxxx Plans to Contractor, Contractor
shall have ten days to discuss the Plans with Xxxxxxxx
Engineering, seek modifications as it deems appropriate, and
either approve or disapprove final Xxxxxxxx Plans. If
Contractor disapproves the Xxxxxxxx Plans, this Agreement
shall terminate and neither party shall have any further
liability, one to the other, hereunder. In that event, all
claims, rights, and causes of action between the parties shall
be preserved to the extent they existed on the date of this
Agreement. If the Xxxxxxxx Plans are approved by Contractor,
Contractor shall delivery the Plans to Owner.
3.8 Upon receipt of the Xxxxxxxx Plans (Plans Delivery Date),
Owner shall have 30 days to approve or disapprove the Xxxxxxxx
Plans. If the Xxxxxxxx Plans are approved, the Contractor
shall proceed in accordance with Section 3.9 below. If the
Xxxxxxxx Plans are disapproved, the Owner will advise the
Contractor specifically
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of the deficiencies of the Xxxxxxxx Plans and allow the
Contractor a period of no less than 20 days to make revisions
to the Xxxxxxxx Plans and resubmit the Xxxxxxxx Plans to the
Owner. Upon resubmission, the Owner will have 15 days to once
again either approve or disapprove the Xxxxxxxx Plans as
revised. If the Xxxxxxxx Plans are approved as revised, the
Contractor shall have 10 days to approve the Xxxxxxxx Plans.
If the Contractor approves the Xxxxxxxx Plans, the Contractor
will proceed in accordance with Section 3.9 below. If the
Xxxxxxxx Plans are disapproved by either party, this Agreement
shall terminate and neither party shall have any further
liability, one to the other, hereunder. In that event, all
claims, rights, and causes of action between the parties shall
be preserved to the extent they existed on the date of this
Agreement.
3.9 For the purposes of this Agreement, hereinafter the term
Xxxxxxxx Plans shall mean the Xxxxxxxx Plans as approved by
the Owner.
3.10 Within 30 days following approval of the Xxxxxxxx Plans by the
Owner, the Contractor shall enter into a subcontract with
Xxxxxxxx Engineering, or another engineering firm proposed by
Contractor and approved by the Owner, to construct the repairs
to the Lake in accordance with the Xxxxxxxx Plans and the
other terms and provisions of this Agreement ("Work").
3.11 The Owner and the Contractor acknowledge that the Work cannot
be commenced until the end of the live racing season, on or
about October 24, 1999. The Owner shall provide notice to the
Contractor of the last live racing date in the 1999 season and
the Contractor shall use its reasonable efforts to commence
Work within 45 days following such last live racing date
("Work Commencement Date"). Subject to force majeure, the
provisions of this Agreement, and any extensions approved by
the Owner pursuant to a change order, the Contractor agrees
that it shall cause the Work to be substantially completed on
or before the estimated time for completion as set forth in
the Xxxxxxxx Plans ("Estimated Date of Substantial
Completion"). The Contractor shall use its reasonable efforts
to complete dirt hauling to the Lake on or before January 15,
2000.
4.0 CONTRACTOR'S RESPONSIBILITIES
4.1 In accordance with the Schedule set forth in Section 3.0, and
in accordance within Section 2.0, and the terms and provisions
of this Agreement, the Contractor, through its subcontractor,
shall perform the Work, and provide all inspections, labor,
materials and equipment necessary to complete the Work in
accordance with the Schedule set forth in Section 3.0.
4.2 Contractor represents that it fully understands the Work
required and, except as otherwise provided in this Agreement,
the local conditions that may affect its performance.
Contractor shall use its reasonable efforts to ensure diligent
performance and coordination of the design and construction to
be furnished under this Agreement. The Contractor shall
inspect the site of the Work and fully acquaint itself with
the existing surface and (to the extent practical) subsurface
conditions and shall fully inform itself of the nature and
character of the Work. Contractor shall not be entitled to
additional time or money for conditions which the Contractor
could have reasonably discovered through its previous site
inspection hereunder. Owner
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acknowledges that the Contractor does not guarantee that the
repairs evidenced by the Xxxxxxxx Proposal and the Xxxxxxxx
Plans will in fact have the results desired by the Owner. The
Owner, for itself, shall provide to the Contractor, within ten
(10) days after the execution of this Contract, all documents
or other material, in whatever form or format that may exist,
in Owner's possession, related to or revealing any surface or
subsurface conditions related to the Lake or the subsurface
under the Lake. Owner will use its reasonable efforts to
acquire for Contractor any other information as Contractor may
designate from sources under Owner's control.
4.3 Contractor shall be and remain liable to Owner for all damages
caused by the negligence of Contractor, its employees, agents,
representatives, assigns or subcontractors under this
Agreement. Owner's review, approval or acceptance of or
payment for any of the services provided under this Agreement
shall not constitute a waiver of any rights provided under
this Agreement or otherwise provided by law.
4.4 Contractor shall promptly and in logical sequence prepare,
review, approve and submit to Owner the Xxxxxxxx Proposal, and
the Xxxxxxxx Plans in accordance with the Schedule. The
Xxxxxxxx Plan and Proposal shall be sent to: Retama
Development Corporation, c/o Retama Entertainment Group, X.X.
Xxx 00000, Xxx Xxxxxxx, Xxxxx 00000-0000 with copies sent to
each of Owner's board members and Owner's counsel, at
addresses to be provided by Owner. All documents shall be in
English or appropriate translated.
4.5 Unless otherwise provided by specific reference in the
Contract Documents, Contractor will provide and maintain a
record set of releases, permits and other authorizations
necessary for the execution and completion of the Work.
4.6 Contractor shall give all notices and comply with all laws,
ordinances, rules, regulations and lawful orders of any public
authority bearing on the performance of the Work and shall
coordinate its Work with the work of others on-site (provided
however, any future laws enacted that would delay or prohibit
the Work or any aspect thereof may be considered force
majeure). Owner shall advise of specific racing commission and
municipal codes known to them during design phase. The Owner
shall use its reasonable efforts to assure that no other
construction or work is ongoing in the area of the Lake (other
than routine landscape maintenance) that would interfere in
any way with the Work. However, Contractor recognizes and
acknowledges that Owner conducts an equestrian training center
on its premises that requires access to and use of the track
facilities. Contractor will coordinate all work at the
facility with Owner to ensure minimal interruption of track
use and training center operations. The Contractor will repair
any damage to the track caused by Contractor or its
subcontractor(s).
4.7 Contractor shall maintain at all reasonable times a
representative available to Owner with the expertise required
to administer the work of this contract and supervise its
subcontractors.
4.8 Contractor shall keep on site a set of Contract Documents
marked to show changes to date and shall provide Owner with a
set of as-built drawings as the work is completed.
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4.9 Should Owner request any additional inspections or testing be
performed by the Contractor beyond the reasonable inspecting
and testing procedures generally used in the industry, the
additional inspection and testing shall be at the sole cost
and expense of Owner, and any delays proximately resulting
from the additional inspecting and testing, will be added to,
and will extend, the specified delivery time by an amount of
time equal to such delay.
4.9.1 If any portion of the Work is covered up prior to a
required inspection, it must be uncovered for
inspection and the uncovering and recovering shall be
at Contractor's expense.
4.9.2 If Owner or agent reasonably determines that any work
requires special inspection, testing or approval
(other than as addressed in Section 4.10), Owner will
instruct Contractor to order such special inspection,
testing or approval. If such special inspection or
testing reveals failure of the Work to comply with
the requirements of the Contract Documents,
Contractor shall bear all costs thereof, including
compensation for additional services made necessary
by such failure and loss of time; otherwise, Owner
shall bear the costs of such testing.
4.10 Any work or materials that may have been omitted in the
general description of said Project, but the implementation of
which is implied or necessary to the Project's completion, in
accordance with generally accepted construction industry
standards, should be deemed by Contractor and Owner to be
included in this Contract and shall be furnished by the
Contractor as if same had been stated specifically.
5.0 RESPONSIBILITIES OF OWNER
5.1 The Owner shall designate a representative who shall be fully
acquainted with the Project and have authority to recommend
changes in the scope of the Project, render decisions
promptly, and furnish information expeditiously and in time to
meet the dates set forth in the Schedule.
5.2 Owner shall have the right, but not the obligation, to perform
inspections of the work in a manner mutually agreed upon by
both parties but this will in no way relieve Contractor of its
obligations for full compliance with the Contract Documents.
Contractor acknowledges that owner inspections and tests are
for the sole benefit of the Owner and do not relieve the
Contractor of its duty to perform inspection, testing, and
quality control of its work.
5.3 Owner or agent shall have the right to assign access gate to
the job site for use by the Contractor.
5.4 The Owner shall have no contractual obligation to the
Contractor's subcontractors and shall communicate with such
subcontractors only through the Contractor.
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6.0 CONSIDERATION
This Agreement arises out of a settlement of certain disputed matters
between the Contractor, Xxxxxxx Xxxxx, and the Owner. The Contractor,
at its sole expense, shall fund the preparation of the Xxxxxxxx
Proposal and the Xxxxxxxx Plans, and the undertaking of the Work
described by the Xxxxxxxx Plans as finally approved by Contractor and
Owner. Upon approval of the final Xxxxxxxx Plans by Contractor and
Owner, Contractor, Xxxxxxx Xxxxx, and Owner will execute the Settlement
Agreement and Dismissal Motion attached hereto as Exhibit A for Cause
No. 98CI-17581; Retama Development Corporation vs. Call Now, Inc. and
Xxxxxxx Xxxxx in the 224th Judicial District Court of Bexar County,
Texas now pending in Bexar County, Texas. In addition, Owner will
execute the Assignment attached hereto as Exhibit B. In the event that
Contractor or its subcontractor(s) assist Owner or its parent, the City
of Selma, in obtaining state or federal funds available to fund any
portion of the Work, Owner and Contractor will negotiate in good faith
modifications to this Agreement allocating a reasonable portion of such
funds to the Work to reduce Contractor's costs hereunder.
7.0 INDEPENDENT CONTRACTOR
7.1 The parties expressly understand and agree that Contractor is
acting as an independent contractor unrelated to Owner or
agent and any of its subsidiary or affiliated companies.
Nothing in this Agreement is intended to create a
relationship, express or implied, of employer-employee or
principal-agent between Owner and Contractor or between Owner
and any individual employed or provided to work under this
Agreement by Contractor.
7.2 Owner or agent shall have no direction and control over
Contractor or Contractor's employees, agents, subcontractors
or the manner and method utilized by Contractor and is
interested only in results obtained by Contractor. Contractor
shall determine and have sole discretion over the manner and
methods utilized to achieve the results desired by Owner or
agent and shall be solely responsible for the direction,
control and supervision of its acts and those of its agents,
employees and subcontractors incident to the performance of
this Agreement. Contractor shall not have nor shall it
represent itself as having any authority to make commitments
in the name of or binding on Owner or agent to pledge Owner or
agent credit or to extend credit in Owner or agent's name.
7.3 Except as provided herein, all expenses incurred by Contractor
in connection with this Agreement shall be the sole
responsibility of Contractor. In the event Contractor makes
unauthorized representations or incurs unauthorized expenses
hereunder that are asserted against Owner or agent, Contractor
shall reimburse Owner or agent, Contractor shall reimburse
Owner for any obligations that may result therefrom.
7.4 Contractor warrants that it is not subject to any restrictive
obligations imposed by former clients or any other third
person that would impair its ability to exercise its
reasonable efforts for or on behalf of Owner in connection
with services to be performed under this Agreement.
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7.5 Contractor has the sole responsibility to determine those
matters governing the employment terms and conditions for its
employees working under this Contract, including, but not
limited to selection, hiring, discipline, grievance
resolution, pay benefits and supervision and control of its
employees. Owner or agent has no authority or rights and shall
not share or have any responsibility in the determination of
such matters for such employees.
7.6 Contractor shall be solely responsible, at its own expense,
and Contractor represents that it has the necessary accounting
resources and an employer identification number, for
withholding all state and federal income taxes, making all
filings and reports with respect to FICA and FUTA taxes, and
making all filings and reports in connection with or relating
to the services of Contractor or any individual employed or
provided to work under this Agreement by Contractor.
Contractor shall indemnify Owner for and against any liability
and expense arising from Contractor's failure to make such
filings and reports.
7.7 Contractor and its employees shall represent themselves only
as independent contractors with respect to work being
performed hereunder. Contractor and its employees shall carry
and represent business cards under Contractor's or
subcontractor's name and/or the name of the individual
employee of Contractor or subcontractor and its employees are
strictly prohibited form using Owner's or agent's trademarks
or trade-name on business cards.
8.0 LIABILITY FOR EXPENSES
Except for costs and expenses specifically allocated to Owner herein,
all expenses in any way pertaining to the provision of services under
this Agreement shall be at the cost of Contractor. Contractor agrees
that is shall assume sole responsibility for receiving funds and paying
all expenses of every kind and nature incurred directly or indirectly
under this Agreement (except for costs and expenses specifically
allocated to Owner herein). Owner assumes no financial responsibility
of any kind or nature relative to this Agreement other than as set
forth herein.
9.0 INDEMNIFICATION AND INSURANCE
In this paragraph, Owner shall mean Retama Development Corporation in
Selma, Texas, and its respective officers, agents, representatives, and
employees. Contractor shall mean Call Now, Inc. and its respective
officers, agents, representatives, and employees.
9.1 Contractor agrees to and shall indemnify Owner against, and
hold Owner harmless from any and all claims, loss, damage
(whether direct, indirect or as a result of), causes of
action, suits and liabilities of every kind (including
reasonable attorney's fees and expenses incurred in the
investigation, defense and settlement of any claim or suit or
for the payment of any judgment) for injuries to or death of
any person, and all damages to and destruction of property by
whomsoever owned, including loss or use thereof, to the extent
resulting from the prosecution or omission of any work or
obligation undertaken by Contractor or required of Contractor
by this Agreement. Contractor shall defend Owner against any
claim or litigation in connection with any injury, death or
damage covered by Contractor's
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indemnity at Contractor's expense; if Contractor fails to
tender a defense if so required, it shall reimburse Owner for
legal fees and other costs incurred in Owner's defense of such
claims or litigation. At its own expense, Owner shall have the
right to participate in the defense of any claims or
litigation. Owner shall reasonably cooperate in any defense
provided by Contractor. Owner shall promptly notify Contractor
of any matter it considers subject to this indemnity. Owner
shall not agree to a judgment or other settlement of an
indemnified matter, without Contractor's consent, unless
Contractor fails to tender a defense.
9.2 Insurance.
Contractor shall secure before commencing and maintain during
the performance of its obligations under this Agreement, a
minimum of at least the following types of insurance and
minimum coverages: (A) Comprehensive General Liability
Insurance with minimum bodily injury limits of $5,000,000.00
each occurrence and minimum property damage limits of
$5,000,000.00 each occurrence; (B) Automobile Liability with
minimum property damage limits of $1,000,000.00 each
occurrence; (C) Statutory Workmen's Compensation. Stated
minimum shall not serve to be interpreted as limiting
Contractor's insurance coverage. Contractor shall furnish to
Owner evidence of such insurance coverage in the form of
Certificates of Insurance. Owner shall be named as an
additional insured on all insurance policies required of
Contractor hereunder. All Certificates of Insurance shall
provide that Owner shall be given 30 days' written notice
prior to any change, substitution or cancellation prior to the
stated expiration date. All insurance policies secured by
Contractor pursuant to this Agreement shall be "occurrence"
policies rather than "claims made" policies. Owner shall
remain named on the policies until contract is completed 100%.
10.0 PATENT, COPYRIGHT, TRADEMARK INDEMNIFICATION
Contractor shall, at its expense, hold harmless and defend Owner
against any claim or action for the infringement of any patent,
copyright or trademark and shall indemnify Owner against all damages,
costs and expenses, including reasonable attorney's fees, arising from
the use by Owner of any work prepared by or on behalf of Contractor in
connection with its performance under this Agreement. Owner shall give
Contractor prompt notice in writing of such claim for infringement.
Upon such notice or at the time Contractor actually knows of
infringement, Contractor shall, at its own expense, either procure for
Owner the right to continue using the infringing materials; replace
same with non-infringing materials; or modify same so they become
non-infringing. The method by which Contractor cures the infringement
shall be at Contractor's discretion. If Contractor fails, refuses, or
is unable to cure the infringement within agreed to time period of
receipt of notice from Owner the date Contractor knew of infringement
Owner in its sole discretion may have the materials to be infringing
removed at Contractor's sole cost, expense and risk of damage or loss.
Contractor shall refund to Owner the removal costs and any other
expenses which result from the proven patent, copyright or trademark
infringement. Contractor shall defend Owner against any such cost,
claim or liability at Contractor's expense.
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11.0 RELEASES, LICENSES AND PERMITS
Contractor shall obtain all releases, licenses, permits or other
authorizations required to fulfill its obligations under this
Agreement. Building permit is responsibility of Owner.
12.0 TAX INDEMNIFICATION
Contractor shall defend, indemnify and hold Owner and its subsidiaries
and affiliates harmless from and against all claims by any governmental
or taxing authority for taxes normally paid by Contractor, any of its
subcontractors or any of their respective agents or employees,
including but not limited to income and property taxes.
13.0 WARRANTIES
13.1 Title
Contractor warrants good title, free from defect, to all
equipment and materials, including modified, repaired and
replacement parts furnished to or obtained for Owner by
Contractor. This warranty of title shall continue without
limitation as to time.
13.2 Compliance with Laws
Contractor warrants that the goods and services to be provided
hereunder shall comply with current OSHA, FDA, EPA, TRC and
other applicable federal, state, local regulations or agency
laws at time of signing this Agreement. Contractor shall
immediately contact Owner's Maintenance Director and its
management company's CEO, if hazardous substances are
encountered or if any spill of hazardous materials occurs
during performance of the work under this Agreement, or while
en route to or from property.
13.3 All services performed by Contractor will conform to the terms
and standards described in this Agreement or if not so
described, shall conform to prevailing industry standards.
13.4 All warranties shall survive acceptance and payment by Owner
and shall benefit Owner.
14.0 CORRECTION OF WORK
14.1 Contractor shall promptly and timely correct all work
reasonably rejected by Owner as failing to conform to the
Contract Documents. Contractor shall bear all costs of
correcting such reasonably rejected work. Rejected material
shall be removed from the site of the work.
14.2 If within one year after the date of final completion of the
Work, any of the work is found to be not in accordance with
the Contract Documents, Contractor shall correct it promptly
to conform to Contract Documents, at its sole cost after
receipt of a written notice from Owner to do so. Owner shall
give such notice promptly after discovery of such condition.
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15.0 DELAYS AND REMEDIES
15.1 Contractor and Owner recognize that time is of the essence in
this construction project and agrees that the time provided in
this Contract is sufficient time to complete its performance
taking into account normal rainfall, weather, and other
typical non-owner caused delays. Contractor will make every
reasonable effort to maintain the time schedule shown in this
contract document and Contractor will make every effort,
including but not limited to, overtime, extra shifts and extra
personnel at Contractor's expense to maintain the schedule. A
delay shall be deemed excusable if Contractor, Notifies Owner
in writing of the delay and its causes, and that the cause is
due to an event normally associated with force majeure as
defined in this Agreement or Owner-directed schedule delay.
Delays due to subcontractors, suppliers, or deliverers of
Contractor-furnished material shall not be deemed excusable
unless: (1) such delay is due to force majeure; and (2) the
materials or services could not have been reasonably procured
elsewhere under the terms of applicable subcontracts.
15.2 Upon proper notice and supporting documentation, Owner shall
extend the time for completion of the work by the number of
days Contractor was reasonably delayed by excusable delays.
15.3 Contractor acknowledges that its sole remedy for an excusable
delay is a time extension. Contractor agrees it is not
entitled to any additional monetary compensation or damages as
a result of any delay or acceleration, including a delay or
acceleration caused by the owner.
16.0 LIENS
16.1 Provided that Owner is current with payments (if any) due to
Contractor, Contractor agrees that it will not make, file, or
maintain a lien or claim of any kind against any property to
which this Agreement relates, or the additions, improvements,
alterations, or repairs made thereon, for or on account of any
goods or services furnished, or any other work done as a
result of this Agreement supplemental hereto.
17.0 FORCE MAJEURE
17.1 In the event either party is rendered unable wholly or in part
by force majeure to carry out its obligations under this
Agreement, other than its obligations to make payments due,
then the party affected by force majeure shall give written
notice with explanation to the other party immediately.
Following such notice, the affected obligations of the party
giving notice shall be suspended only during the continuance
of the force majeure cause, provided due diligence is
demonstrated in seeking remedy to the cause.
17.2 The term "force majeure" as employed herein, shall mean acts
of God, acts of public enemies, wars, blockades,
insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, floods, washouts, civil
disturbances, explosions, and any other cause not within the
control of the party claiming a delay
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despite its due diligence. Contractor acknowledges and agrees
that any strike, other than beyond Contractor's control,
picketing or labor dispute directly or indirectly involving
Contractor or affecting Contractor's timely performance of
obligations shall not constitute "force majeure" and shall not
entitle Contractor to these rights and remedies. In the event,
however, any situation constituting force majeure causes
suspension of the work for a period of fifteen (15)
consecutive days, Retama
Development Corporation and Contractor shall meet and mutually
decide how to further execute this Agreement.
17.3 Contractor shall notify Owner as promptly as possible of any
actual or potential labor dispute affecting Contractor's
performance under this Agreement and give satisfactory
assurance to Owner of its ability to complete the work.
18.0 MAINTENANCE OF JOB SITE
Contractor agrees to maintain Owner's job site in a clean, safe
condition in compliance with applicable regulations and to Owner's
reasonable satisfaction. If Contractor fails to so maintain the site,
Owner may secure such maintenance from another source at Contractor's
expense without affecting Contractor's obligations or responsibility to
perform hereunder.
19.0 RULES
19.1 Contractor shall ensure that its employees, agents,
representatives, assigns and subcontractors comply with the
terms and conditions set forth in the "Site Policies for
Contractors," and "Contractors Safety Program," attached
hereto and incorporated herein as Attachments E and F,
respectively.
19.2 If required by Owner's Designated Representative, Contractor
shall ensure and require that its employees agents,
representatives, assigns and subcontractors obtain a "Special
Visitor Permit" to be visibly worn at all times while at
Owner's facilities. Permits may be obtained from the Owner's
Designated Representative.
20.0 OWNERSHIP
20.1 All designs, drawings, specification, notes and other work
developed by Contractor or its employees, agents,
representatives, assigns or subcontractors for this Agreement
may be used by Owner for the exclusive purpose of maintaining
the Work covered by this Contract without additional
compensation to Contractor or its employees, agents,
representatives, assigns or subcontractors. All proprietary
designs, drawings, specifications and notes provided by the
Contractor to Owner shall not be provided to any third party
without the written consent of Contractor or direction of the
Texas attorney general.
20.2 Any, if any, drawings, specifications and all copies or
contents thereof given to or made available to Contractor by
Owner for the limited purpose of use by Contractor, its
subcontractors and material suppliers may not be used for any
other purpose
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without the prior written consent of Owner. Upon final
approval by Owner and Contractor of the Xxxxxxxx Plans, the
Contractor shall assign its interest in the Xxxxxxxx Plans and
Xxxxxxxx Proposal to Owner, provided, however, Contractor's
and its subcontractor(s) shall have the right to use the
Xxxxxxxx Plans and Xxxxxxxx Proposal for the Work and
otherwise under this Agreement.
21.0 RIGHT TO AUDIT
21.1 Access shall be granted to Owner or to others designated by
Owner by Contractor to records and information relating to
this Agreement, except cost data, unless related to time and
material work for audit purposes, including reports of
corrective actions taken as a result of such audit.
21.2 Contractor agrees to make, keep and maintain complete books,
records, invoices and records of payments relating to the work
while it is being performed and for a period of three (3)
years following acceptance of the work. Any audit is at
Owner's sole expense.
21.3 For the purpose of audit, Owner shall have the right to
examine, either directly or through its authorized
representatives or agents, during business hours and for a
reasonable period of time, all books, records, accounts,
correspondence, instructions, specifications, plans, drawings,
receipts, manuals and memoranda insofar asa they are pertinent
to this Agreement. Owner's right of inspection shall not apply
to Contractor's trade secrets or other proprietary information
properly designated or asserted as such or records related to
cost involved with the fixed price portion of this Agreement.
22.0 SUBCONTRACTORS, ASSOCIATES, CONSULTANTS
22.1 Any subcontractors or consultants utilized by Contractor
relative to its performance under this Agreement (except as
designated by Section 3.9, above) must be specifically
identified by Contractor and approved by Owner prior to the
provision of services or goods for on site work. Such approval
shall not be unreasonably withheld.
22.2 Contractor shall ensure that any approved subcontractor or
consultant has executed an appropriate agreement prior to the
commencement of approved subcontractors, associates or
consultants agreeing to be bound by all applicable provisions
of this Agreement. Contractor shall provide evidence that all
subcontractors are carrying and maintaining insurance coverage
in accordance with the Contract Documents, in the same manner
as Contractor furnishes such evidence under Section entitled
INDEMNIFICATION AND INSURANCE under this Agreement. No
contractual relationship shall exist between the Owner and any
subcontractor or Contractor.
23.0 INVOICING
23.1 For purposes of information to Owner, Contractor shall submit
itemized subcontractor invoices for work performed monthly.
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23.2 All invoices shall reflect this Agreement and shall be mailed
to:
Retama Development Corporation
c/o Retama Entertainment Group
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxx 00000-0000
23.3 The invoices shall contain separated costs such that the
following activities, as applicable, are individually
itemized:
a. Labor costs
b. Material costs
c. Sales or use tax paid
d. Engineering cost
e. Freight
23.4 Each invoice shall be accompanied by the appropriate signed
Lien Waiver from Contractor. Failure or refusal to submit
property executed lien waivers by Contractor, shall be deemed
good and sufficient cause for Owner to withhold future
payments in whole or in part.
24.0 CHANGES
24.1 If Owner and Contractor agree, or if Owner agrees to bear the
entire cost thereof, Owner may submit a change order to alter
the Work. Such change order will be substantially related to
the Work and its current scope. The Schedule will be extended
by a reasonable time to allow for the change order.
24.2 Contractor shall not make substitutions for any major material
or equipment specified in this Agreement without the prior
express written approval of Owner's Designated Representative.
24.3 No changes to Contractor's compensation or schedule shall be
made for weather conditions reasonably anticipated for the
geographic location of the site; faulty workmanship; improper
supervision by Contractor; or failure to comply with the
provisions of this Agreement.
24.4 The cost or credit to the Owner resulting from a change in the
work shall be determined in one or more of the following ways:
A. By such applicable unit prices as set forth in the
Contract Documents;
B. If no such unit prices are set forth, then by a lump
sum mutually agreed upon by the Contractor and the
Owner, or
C. If no unit prices are set forth and if the parties
cannot agree upon a lump sum, then by actual costs
reasonably incurred by Contractor.
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25.0 TERMINATION
25.1 Owner may terminate this Agreement in whole or in part at any
time upon ten (10)days written notice to Contractor for the
convenience of Owner, or because of a material breach of
Contractor's failure to fulfill its contractual obligations.
Upon receipt of notice to terminate, Contractor shall, unless
the notice directs otherwise, immediately discontinue all
services affected and if so directed, make every reasonable
effort to secure cancellation of all existing orders or
contracts upon terms and conditions satisfactory to Owner and
deliver to Owner all data, drawings, specifications, reports,
estimates, summaries and other materials and information
supplied by Owner in performing under this Agreement.
25.2 If the termination is for the convenience of Owner, no further
consideration shall be payable to Contractor beyond the
release set forth in this Agreement.
25.3 If the termination is due to the material breach of Contractor
to fulfill its contractual obligations, Owner may take over
the work and prosecute the same to completion and may utilize
any other remedies available at law or equity. Provided
however, no material breach shall be deemed to have occurred
unless Owner notifies Contractor of an alleged breach or
provides a reasonable cure period (in event less than 10
days).
25.4 By way of example, but not limitation, Contractor shall be
deemed to have breached this Agreement if Contractor is
insolvent, seeks protection from creditors, makes a general
assignment for the benefit of creditors, persistently or
repeatedly refuses or fails to supply enough properly skilled
workers or proper materials, materially fails to make prompt
payment to subcontractors or material men for materials or
labor, materially violates any material law, ordinance, rule,
regulation or order of any public authority having
jurisdiction, or if a receiver is appointed for its business,
or it otherwise violates a material provision of the Contract
Documents.
25.5 If, after notice of termination for failure to fulfill
contractual obligations, it is determined the Contractor had
not so failed, the termination shall be deemed to have been
effected for the convenience of Owner. In such an event,
Contractor's sole remedy shall be an adjustment in the
Contract Price may be made as provided in this Agreement.
25.6 [Intentionally Deleted]
25.7 [Intentionally Deleted]
25.8 If the Agreement is terminated, Contractor shall have no
obligation to make any further fundings for the Work, except
for damages (if any) for breach of this Agreement if
established by a final, non-appealable judgment of a court of
competent jurisdiction.
26.0 SUSPENSION OF WORK
26.1 Owner may order Contractor in writing to suspend all or part
of the work for such period as Owner may determine to be
appropriate for the convenience of Owner.
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26.2 In the event of a written Owner directed suspension of work,
Contractor shall be entitled to an adjustment in the scheduled
completion date resulting from such adjustment to reflect the
actual number of days in the suspension and the schedules of
affected subcontractors.
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27.0 DESIGNATED REPRESENTATIVE
27.1 Owner's Designated Representative for this Agreement is Xxxxx
Xxxxx, telephone (000) 000-0000, fax number is (000) 000-0000,
Contractor's Designated Representative for this Agreement is
Xxxxxx Xxxxxxx, telephone (000) 000-0000.
28.0 CONTRACT ADMINISTRATOR
All matters of an administrative or contractual nature pertaining to
this Agreement, including, but not limited to, the issuance of notices,
amendments, time extensions, requests for changes, submission of
Insurance Certificates, and any other contractual correspondence,
including exchange of signed copies of this Agreement shall be directed
to:
Retama Development Corporation
c/o Retama Entertainment Group
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxx 00000-0000
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
All matters of a technical coordinating or project authorization nature
will be directed to Owner's Designated Representative.
29.0 CONTRACTOR'S ADDRESS
Contractor's address for purposes of all communication relevant to this
Agreement is:
Xxxxxx Xxxxxxx, President
Call Now, Inc.
00000 Xxxxxxxx, #000
Xxx Xxxxxxx, Xxxxx 00000
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
30.0 TITLE AND RISK OF LOSS
Title to all material completed or partially completed work, (upon
final payment by Owner) delivered or stored at job site by Contractor
which are to become part of the completed work shall be in Owner's
name. However, liability for loss or damage to all such work or
materials shall remain with Owner until final acceptance of the
completed work by Owner.
31.0 SERVICES NON-EXCLUSIVE
This Agreement is non-exclusive and Owner may, without notice to
Contractor, engage or use others to perform services of the same or
similar nature including services on projects or specific assignments
upon which Contractor is working.
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32.0 SAFETY
32.1 It is Contractor's responsibility to instruct its agents,
servants, employees, and subcontractors to contact Owner's
Designated Representative, prior to commencing work, regarding
safety policies and procedures and potential hazards or
hazardous materials in the work areas.
32.2 Owner when warranted may suspend the work for a full safety
inspection and correction. The inspection costs and all
correction costs shall be at Contractor's expense, if found to
be in violation.
32.3 If Contractor has two or more major safety violations proven
and documented by Owner, then such violations shall be grounds
for termination of this Contract under the section entitled
Termination (termination for failure to fulfill contractual
obligations of this Agreement).
32.4 Contractor shall take a pro-active role toward all safety
issues and shall actively promote working conditions and work
practices which will ensure all workers a safe and healthy
environment.
33.0 AMENDMENT
This Agreement may not be amended except in writing properly executed
by the parties hereto. Except as specifically amended, this Agreement
shall remain in full force and effect.
34.0 ASSIGNMENT AND SUBCONTRACTING
Except as otherwise provided in this Agreement (and particularly
Section 3), Contractor shall not have the right or power to assign or
subcontract its rights or obligations hereunder without the express
written consent of Owner. Any attempt to do so without such consent
shall be null and void and shall give Owner the right to cancel and
terminate this Agreement. In the event consent is properly given, the
provisions of this Agreement shall bind and benefit the parties hereto
and their representatives, successors and assigns. Provided however,
Contractor shall subcontract all design and construction work to
Xxxxxxxx Engineering.
35.0 GOVERNING LAW AND VENUE
This Agreement shall be deemed to have been made and accepted in Bexar
County, Texas, and the laws of the State of Texas shall govern any
interpretations or instructions of this Agreement.
36.0 AUTHORITY
36.1 Contractor warrants that it has the full authority and power
to enter into and perform under this Agreement and to make all
representations, warranties and covenants as set forth herein.
Contractor shall provide, upon Owner's request, written
evidence satisfactory to Owner of Contractor's authority or,
if Contractor is acting as an agent, evidence of that
relationship.
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36.2 Contractor warrants that the individual executing this
Agreement is properly authorized to bind Contractor to the
terms of this Agreement.
36.3 If Contractor hereunder is comprised of more than one legal
entity, each such entity shall be jointly and severally liable
hereunder, and each shall sign this Agreement.
37.0 WAIVER
Owner's failure in any one or more instances to insist upon strict
performance of any of the terms and conditions of this Agreement or to
exercise any right herein conferred shall not be construed as a waiver
or relinquishment of that right or of Owner's right to assert or rely
upon the terms and conditions of this Agreement. Any express waiver of
a term of this Agreement shall not be binding and effective unless made
in writing and properly executed by the waiving party.
38.0 SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision.
Any invalid or unenforceable provision shall be deemed severed from
this Agreement to the extent of its invalidity or unenforceability, and
this Agreement shall be construed and enforced as if the Agreement did
not contain that particular provision to the extent of its invalidity.
39.0 INTEGRATION OF UNDERSTANDING
There are no understandings between the parties hereto as to the
subject matter of this Agreement other than as set forth herein and in
the documents specifically incorporated herein. Any previous
communications concerning the subject matter of this Agreement are
hereby superseded and this Agreement shall constitute the entire and
integrated agreement between the parties. This Agreement may be amended
only by written instrument signed by both Owner and Contractor.
40.0 PAYMENT AND PERFORMANCE BOND.
The Contractor shall cause Xxxxxxxx Engineering to obtain for the
benefit of Contractor and Owner a payment and performance bond in the
amount of $650,000.00 that the Work will be performed in accordance
with the Xxxxxxxx Plans. The surety must be licensed to do business in
Texas and reasonably acceptable to Owner.
BY SIGNING BELOW, all parties hereto accept this Agreement.
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Owner:
RETAMA DEVELOPMENT CORPORATION
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
Contractor:
CALL NOW, INC.
By:
------------------------------------
Xxxxxx Xxxxxxx, President
For the purposes of approving Section 6, only, and not
otherwise, this Agreement is joined by Xxxxxxx Xxxxx.
------------------------------------
XXXXXXX XXXXX, Individually
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