Exhibit 10.71
THE AMERICAN INSTITUTE OF ARCHITECTS
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AIA Document A10
Standard Form of Agreement Between Owner and Contractor
where the basis of payment is a
STIPULATED SUM
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY
IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.
The 1987 Edition of AIA Document A201, General Conditions of the
Contract for Construction, is adopted in this document by reference. Do
not use with other general conditions unless this document is modified.
This document has been approved and endorsed by The Associated
General Contractors of America.
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AGREEMENT
made as of the twelfth day of November in the year of Nineteen Hundred and
Ninety Seven
BETWEEN the Owner:
(Name and address)
Pocono Downs, Inc.
X.X. Xxx 00
Xxxxxxxxxx, XX 00000
and the Construction Manager:
(Name and address)
Xxxxxx Construction Company
000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
The Project is:
(Name, address and brief description)
The Downs
Off-Track Wagering Facility
Hazelton, PA
The Architect is:
(Name and address)
Architectural Concepts
Suite 200
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
The Owner and Contractor agree as set forth below.
(1)
ARTICLE 1
THE CONTRACT DOCUMENT
The Contract Documents consist of this Agreement, Conditions of the
Contract (General, Supplementary and other Conditions), Drawings,
Specifications, Addenda issued prior to execution of this Agreement, other
documents listed in this Agreement and Modifications issued after execution of
this Agreement: these form the Contract, and are as fully a part of the Contract
as if attached to this Agreement or repeated herein. The Contract represents the
entire and integrated agreement between the parties hereto and supersedes prior
negotiations, representations or agreements, either written or oral. An
enumeration of the Contract Documents, other than Modifications, appears in
Article 9.
ARTICLE 2
THE WORK OF THIS CONTRACT
The Contractor shall execute the entire Work described in the Contract
Documents, except to the extent specifically indicated in the Contract Documents
to be the responsibility of others, or as follows:
ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement is the date from which the Contract Time of
Paragraph 3.2 is measured, and shall be the date of this Agreement, as first
written above, unless a different date is stated below or provision is made for
the date to be fixed in a notice to proceed issued by the Owner.
(Insert the date of commencement, if it differs from the date of this Agreement
or, if applicable, state that the date will be fixed in a notice to proceed.)
Date of commencement shall be 10 days after receipt of Notice to Proceed
Unless the date of commencement is established by a notice to proceed issued by
the Owner, the Contractor shall notify the Owner in writing not less than five
days before commencing the Work to permit the timely filing of mortgages,
mechanic's liens and other security interest.
3.2 The Contractor shall achieve Substantial Completion of the entire Work not
later than
(Insert the calendar date or number of calendar days after the date of
commencement. Also insert any requirements for earlier Substantial Completion of
certain portions of the Work, if not stated elsewhere in the Contract
Documents.)
120 calendar days after receipt of Notice to Proceed, subject to adjustments of
this Contract Time as provided in the Contract Documents.
(2)
(Insert provisions, if any, for liquidated damages relating to failure to
complete on time.)
ARTICLE 4
Contract Sum
4.1 The Owner shall pay the Contractor in current funds for the Contractor's
performance of the Contract the Contract Sum of One Million Three Hundred Forty
Seven Thousand Dollars ($1,347,000.00), subject to additions and deductions as
provided in the Contract Documents.
4.2 The Contract Sum is based upon the following alternates, if any, which are
described in the Contract Documents and are hereby accepted by the Owner:
(State the number or other identification of accepted alternates. If decisions
on other alternates are to be made by the Owner subsequent to the execution of
this Agreement, attach a schedule of such other alternates showing the amount
for each and the date until which that amount is valid.)
Alternate #1: Cost to add Performance and Payment Bond to base bid:
Increase $11,000.00
4.3 Unit price, if any, are as follows:
None
ARTICLE 5
PROGRESS PAYMENTS
5.1 Based upon Applications for Payment submitted to the Owner by the Contractor
the Owner shall make progress payments on account of the Contract Sum to the
Contractor as provided below and elsewhere in the Contract Documents.
5.2 The period covered by each Application for Payment shall be one calendar
month ending on the last day of the month.
5.3 Provided an Application for Payment is received by the Owner not later than
the 31st day of a month, the Owner shall make payments to the Contractor not
later than the 25th day of the following month. If an Application for Payment is
received by the Owner after the application dated fixed above, payment shall be
made by the Owner not later than days after the Owner receives the Application
for Payment.
5.4 Each Application for Payment shall be based upon the Schedule of Values
submitted by the Contractor in accordance with the Contract Documents. The
Schedule of Values shall allocate the entire Contract Sum among the various
portions of the Work and be prepared in such form and support by such data to
substantiate its accuracy as the Architect may require. The Schedule, unless
(3)
objected to by the Architect, shall be used as a basis for reviewing the
Contractor's Applications form Payment.
5.5 Applications for Payment shall indicate the percentage of completion of
each portion of the Work as of the end of the period covered by the Application
for Payment.
5.6 Subject to the provisions of the Contract Documents, the amount of each
progress payment shall be computed as follows:
5.6.1 Take that portion of the Contract Sum properly allocable to completed Work
as determined by multiplying the percentage completion of each portion of the
Work by the share of the total Contract Sum allocated to that portion of the
Work in the Schedule of Values less retainage of Ten (10%). Pending final
determination of cost to the Owner of changes in the Work, amounts not in
dispute may be included as provided in Subparagraph 7.3.7 of the General
Contract even though the Contract Sum has not yet been adjusted by Change Order.
5.6.2 Add that portion of the Contract Sum properly allocable to materials and
equipment delivered and suitably stored at the site for subsequent incorporation
in the completed construction (or, if approved in advance by the Owner, suitably
stored off the site at a location agreed upon in writing), less retainage of Ten
Percent (10%);
5.6.3 Subtract the aggregate of previous payment made by the Owner: and
5.6.4 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment as provided in paragraph 9.5 of the General
Conditions.
5.7 The progress payment amount determined in accordance with Paragraph 5.6
shall be further modified under the following circumstances:
5.7.1 Add, upon Substantial Completion of the Work, a sum sufficient to increase
the total payments to Ninety-nine Percent (99%) of the Contract Sum, less such
amounts as the Architect shall determine for incomplete Work and unsettled
claims; and
5.7.2 Add, if final completion of Work is thereafter materially delayed through
no fault of the Contractor, any additional amounts payable in accordance with
Subparagraph 9.10.3 of the General Conditions.
5.8 Reduction or limitation of retainage, if any, shall be as follows:
(If it is intended, prior to Substantial Completion of the entire Work, to
reduce or limit the retain age resulting from the percentages inserted in
Subparagraphs 5.6.1 and 5.6.2 above, and this is not explained elsewhere in the
Contract Documents, insert here provisions for such reduction or limitation.)
Reduce to 5% when 50% complete with work
Reduce to 0% when contract work complete
(4)
ARTICLE 6
FINAL PAYMENT
Final Payment, constituting the entire unpaid balance of the Contract Sum, shall
be made by the Owner to the Contractor when (1) the Contract has been fully
performed by the Contractor except for the Contractor's responsibility to
correct nonconforming Work as provided in Subparagraph 12.2.2 of the General
Conditions and to satisfy other requirements, if any, which necessarily survive
final payment; and (2) a final Certificate for Payment has been issued by the
Architect; such final payments shall be made by the Owner not more than 30 days
after the issuance of the Architect's final Certificate for Payment, or as
follows:
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Where reference is made in this Agreement to a provision of the General
Conditions or another Contract Documents, the reference refers to that provision
as amended or supplemented by other provisions of the Contract Documents.
7.2 Payments due and unpaid under the Contract shall bear interest from the date
payment is due at the rate stated below, or in the absence thereof, at the legal
rate prevailing from the time at the place where the Project is located.
(Insert rate if interest agreed upon, if any)
12% per annum
(Usury laws and requirements under the Federal Truth in Lending Act, similar
state and local consumer credit laws and other regulations at the Owner's and
Contractor's principal places of business, the location of the Project and
elsewhere may effect the validity of this provision. Legal advise should be
obtained with respect to deletions or modifications, and also regarding
requirements such as written disclosures or waivers.)
7.3 Other provisions:
See attached clarifications
ARTICLE 8
TERMINATION OR SUSPENSION
8.1 The contract may be terminated by the Owner or the Contractor as provided in
Article 14 of the General Conditions.
8.2 The Work may be suspended by the Owner as provided in Article 14 of the
General Conditions.
(5)
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9.1 The Contract Documents, except for Modifications issued after execution of
this Agreement, are enumerated as follows:
9.1.1 The Agreement is this executed Standard form of Agreement Between Owner
and Contractor, AIA Document A101, 1987 Edition.
9.1.2 The General Conditions are the General Conditions of the Contract of
Construction, AIA Document A201, 1987 Edition.
9.1.3 The Supplementary and other Conditions of the Contract are those contained
in the Project Manual dated Not applicable and are as follows:
Document Title Pages
00800 Supplementary Conditions 2
9.1.4 The Specifications are those contained in the Project Manual dated as in
Subparagraph 9.1.3, and are as follows:
(Either list the Specifications here or refer to an exhibit attached to this
Agreement.)
Section Title Pages
See attached Table of Contents
9.1.5 The Drawings are as follows, and are dated unless a different date is
shown below:
(Either list the Drawings or refer to an exhibit attached to this Agreement.)
Number Title Date
See attached listing
9.1.6 The Addenda, if any, are as follows:
Number Date Pages
1 9/11/97 12
2 9/29/97 10
3 9/30/97 1
(6)
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also numerated in this
Article 9.
9.1.7 Other documents, if any, forming part of the Contract Documents are as
follows;
(List here any additional documents which are intended to form part of the
Contract Documents. The General Conditions provide that bidding requirements
such as advertisement or invitation to bid, Instructions to Bidders, sample
forms and the Contractor's bid are not part of the Contract Documents unless
enumerated in this Agreement. They should be listed here only if intended to be
part of the Contract Documents.)
This Agreement is entered into as of the day and year first written above and is
executed in at least three original copies of which one is to be delivered to
the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
OWNER Pocono Downs, Inc. CONTRACTOR Xxxxxx Construction Company
/s/ Xxxxxx X. Xxxxxx /s/ X. X. Xxxxxx
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(Signature) (Signature)
Xxxxxx X. Xxxxxx, General Manager X. X. Xxxxxx, President
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(Printed Name and Title) (Printed Name and Title)
