EXHIBIT #10.75
Standard Form of Agreement Between Owner and Contractor. 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.
AGREEMENT
made as of the twelfth day of November in the year of Nineteen Hundred
and Ninety Seven
BETWEEN the Owner: Penn National Turf Club
(Name and address) X.X. Xxx 00
Xxxxxxxxxx, XX 00000
and the Construction Manager: Xxxxxx Construction Company
(Name and address) 000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
The Project is: Altoona OTW
(Name, address and brief description) Off-Track Wagering
Facility
Altoona, PA
The Architect is: Architectural Concepts
(Name and address) Xxxxx 000
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
The Owner and Contractor agree as set forth below.
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:
* See Attachment A for clarification of contract scope and sum.
ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
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.)
138 calendar days after receipt of Notice to Proceed
1. Facility needs to be substantially complete and ready for
Beneficial Occupancy no later than 9/1/98.
2. Warfel will do their best to attempt to achieve final
completion (punchlist done) by 9/18/98.
, subject to adjustments of this Contract Time as provided in the
Contract Documents.
(Insert provisions, if any, for liquidated damages relating to failure
to complete on time.)
None
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 Two Hundred Ninety Seven Thousand Dollars ($1,297,000.00),
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.)
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 20th 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 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 indicated 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 finial 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 2.5% when work is 90% complete
Reduce to 0% when contract work is complete
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 A, B & C
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.
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
None available at time of contract agreement
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
None available at time of contract agreement
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
None
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 Penn National Turf Club CONTRACTOR Xxxxxx Construction Company
/s/ Xxxxxx X. Xxxxxx /s/ X. X. Xxxxxx
(Signature) (Signature)
Xxxxxx X. Xxxxxx, General Manager X. X. Xxxxxx, President
(Printed Name and Title) (Printed Name and Title)
