EXHIBIT 10.57
AIA Document A121/CMc and AGC Document 565
Standard Form of Agreement Between Owner
and Construction Manager
where the Construction Manager is also
THE CONSTRUCTOR
1991 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 referred to herein. This Agreement requires modification if
other general conditions are utilized.
AGREEMENT
made as of the day of December In the year of Nineteen Hundred and
Ninety-Six
(In words, indicate day, month and year)
BETWEEN the Owner:
(Name and address)
PNGI Charles Town Gaming Limited Liability Company
825 Berkshire Boulevard
Suite 203
Wyomissing, PA 19610
and the Construction Manager:
(Name and address)
Warfel Construction Company
812 North Prince Street
P. O. Box 4488
Lancaster, PA 17604
The Project is:
(Name, address and brief description)
Renovations to Charles Town Race Track
Charles Town, West Virginia
The Architect is:
(Name and address)
Architectural Concepts
StoneBank Professional Center
Suite 200
967 East Swedesford Road
Exton, PA 19341
The Owner and Construction Manager agree as set forth below.
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TABLE OF CONTENTS
ARTICLE 1 GENERAL PROVISIONS
1.1 Relationship of Parties
1.2 General Conditions
ARTICLE 2 CONSTRUCTION MANAGER'S
RESPONSIBILITIES
2.1 Preconstruction Phase
2.2 Guaranteed Maximum Price Proposal
and Contract Time
2.3 Construction Phase
2.4 Professional Services
2.5 Unsafe Materials
ARTICLE 3 OWNER'S RESPONSIBILITIES
3.1 Information and Services
3.2 Owner's Designated Representative
3.3 Architect
3.4 Legal Requirements
ARTICLE 4 COMPENSATION AND PAYMENTS
FOR PRECONSTRUCTION PHASE
SERVICES
4.1 Compensation
4.2 Payments
ARTICLE 5 COMPENSATION FOR
CONSTRUCTION
PHASE SERVICES
5.1 Compensation
5.2 Guaranteed Maximum Price
5.3 Changes in the Work
ARTICLE 6 COST OF THE WORK FOR
CONSTRUCTION PHASE
6.1 Costs To Be Reimbursed
6.2 Costs Not To Be Reimbursed
6.3 Discounts, Rebates and Refunds
6.4 Accounting Records
ARTICLE 7 CONSTRUCTION PHASE
7.1 Progress Payments
7.2 Final Payment
ARTICLE 8 INSURANCE AND BONDS
8.1 Insurance Required of the Construction
Manager
8.2 Insurance Required of the Owner
8.3 Performance Bond and Payment Bond
ARTICLE 9 MISCELLANEOUS PROVISIONS
9.1 Dispute Resolution for the
Preconstruction Phase
9.2 Dispute Resolution for the
Construction Phase
9.3 Other Provisions
ARTICLE 10 TERMINATION OR SUSPENSION
10.1 Termination Prior to Establishing
Guaranteed Maximum Price
10.2 Termination Subsequent to Establishing
Guaranteed Maximum Price
10.3 Suspension
ARTICLE 11 OTHER CONDITIONS
AND SERVICES
Attachments AMENDMENT NO. 1
to Agreement Between Owner
and Construction Manager
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ARTICLE 1
GENERAL PROVISIONS
1.1 RELATIONSHIP OF PARTIES
The Construction Manager accepts the relationship of trust and confidence
established with the Owner by this Agreement, and covenants with the Owner to
furnish the Construction Manager's reasonable skill and judgment and to
cooperate with the Architect in furthering the interests of the Owner. The
Construction Manager shall furnish construction administration and management
services and use the Construction Manager's best efforts to perform the Project
in an expeditious and economical manner consistent with the interests of the
Owner. The Owner shall endeavor to promote harmony and cooperation among the
Owner, Architect, Construction Manager and other persons or entities employed by
the Owner for the Project.
1.2 GENERAL CONDITIONS
For the Construction Phase, the General Conditions of the Contract shall be the
1987 Edition of AIA Document A201, General Conditions of the Contract for
Construction, which is incorporated herein by reference. For the Preconstruction
Phase, or in the event that the Preconstruction and Construction Phases proceed
concurrently, AIA Document A201 shall apply to the Preconstruction Phase only as
specifically provided in this Agreement. The term "Contractor" as used in AIA
Document A201 shall mean the Construction Manager.
ARTICLE 2
CONSTRUCTION MANAGER'S
RESPONSIBILITIES
The construction Manager shall perform the services described in this Article.
The services to be provided under Paragraphs 2.1 and 2.2 constitute the
Preconstruction Phase services. If the Owner and Construction Manager agree,
after consultation with the Architect, the Construction Phase may commence
before the Preconstruction Phase is completed, in which case both phases shall
proceed concurrently.
2.1 PRECONSTRUCTION PHASE
2.1.1 PRELIMINARY EVALUATION
The Construction Manager shall provide a preliminary evaluation of the Owner's
program and Project budget requirements, each in terms of the other.
2.1.2 CONSULTATION
The Construction Manager with the Architect shall jointly schedule and attend
regular meetings with the Owner and Architect. The Construction Manager shall
consult with the Owner and Architect regarding site use and improvements, and
the selection of materials, building systems and equipment. The Construction
Manager shall provide recommendations on construction feasibility; actions
designed to minimize adverse effects of labor or material shortages; time
requirements for procurement, installation and construction completion; and
factors related to construction cost including estimates of alternative designs
or materials, preliminary budgets and possible economies.
2.1.3 PRELIMINARY PROJECT SCHEDULE
When Project requirements described in Subparagraph 3.1.1 have been sufficiently
identified, the Construction Manager shall prepare, and periodically update, a
preliminary Project schedule for the Architect's review and the Owner's
approval. The Construction Manager shall obtain the Architect's approval of the
portion of the preliminary Project schedule relating to the performance of the
Architect's services. The Construction Manager shall coordinate and integrate
the preliminary Project schedule with the services and activities of the Owner,
Architect and Construction Manager. As design proceeds, the preliminary Project
schedule shall be updated to indicate proposed activity sequences and durations,
milestone dates for receipt and approval of pertinent information, submittal of
a Guaranteed Maximum Price proposal, preparation and processing of shop drawings
and samples, delivery of materials or equipment requiring long-lead time
procurement, Owner's occupancy requirements showing portions of the Project
having occupancy priority, and proposed date of Substantial Completion. If
preliminary Project schedule updates indicate that previously approved schedules
may not be met, the Construction Manager shall make appropriate recommendations
to the Owner and Architect.
2.1.4 PHASED CONSTRUCTION
The Construction Manager shall make recommendations to the Owner and Architect
regarding the phased issuance of Drawings and Specifications to facilitate
phased construction of the Work, if such phased construction is appropriate for
the Project, taking into consideration such factors as economies, time of
performance, availability of labor and materials, and provisions for temporary
facilities.
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2.1.5 PRELIMINARY COST ESTIMATES
2.1.5.1 When the Owner has sufficiently identified the Project requirements and
the Architect has prepared other basic design criteria, the Construction Manager
shall prepare, for the review of the Architect and approval of the Owner, a
preliminary cost estimate utilizing area, volume or similar conceptual
estimating techniques.
2.1.5.2 When Schematic Design Documents have been prepared by the Architect and
approved by the Owner, the Construction Manager shall prepare for the review of
the Architect and approval of the Owner, a more detailed estimate with
supporting data. During the preparation of the Design Development Documents, the
Construction Manager shall update and refine this estimate at appropriate
intervals agreed to by the Owner, Architect and Construction Manager.
2.1.5.3 When Design Development Documents have been prepared by the Architect
and approved by the Owner, the Construction Manager shall prepare a detailed
estimate with supporting data for review by the Architect and approval by the
Owner. During the preparation of the Construction Documents, the Construction
Manager shall update and refine this estimate at appropriate intervals agreed to
by the Owner, Architect and Construction Manager.
2.1.5.4 If any estimate submitted to the Owner exceeds previously approved
estimates or the Owner's budget, the Construction Manager shall make appropriate
recommendations to the Owner and Architect.
2.1.6 SUBCONTRACTORS AND SUPPLIERS
The Construction Manager shall seek to develop subcontractor interest in the
Project and shall furnish to the Owner and Architect for their information a
list of possible subcontractors, including suppliers who are to furnish
materials or equipment fabricated to a special design, from whom proposals will
be requested for each principal portion of the Work. The Architect will promptly
reply in writing to the Construction Manager if the Architect or Owner know of
any objection to such subcontractor or supplier. The receipt of such list shall
not require the Owner or Architect to investigate the qualifications of proposed
subcontractors or suppliers, nor shall it waive the right of the Owner or
Architect later to object to or reject any proposed subcontractor or supplier.
2.1.7 LONG-LEAD TIME ITEMS
The Construction Manager shall recommend to the Owner and Architect a schedule
for procurement of long-lead time items which will constitute part of the Work
as required to meet the Project schedule. If such long-lead time items are
procured by the Owner, they shall be procured on terms and conditions acceptable
to the Construction Manager. Upon the Owner's acceptance of the Construction
Manager's Guaranteed Maximum Price proposal, all contracts for such items shall
be assigned by the Owner to the Construction Manager, who shall accept
responsibility for such items as if procured by the Construction Manager. The
Construction Manager shall expedite the delivery of long-lead time items.
2.1.8 EXTENT OF RESPONSIBILITY
The Construction Manager does not warrant or guarantee estimates and schedules
except as may be included as part of the Guaranteed Maximum Price. The
recommendations and advice of the Construction Manager concerning design
alternatives shall be subject to the review and approval of the Owner and the
Owner's professional consultants. It is not the Construction Manager's
responsibility to ascertain that the Drawings and Specifications are in
accordance with applicable laws, statutes, ordinances, building codes, rules and
regulations. However, if the Construction Manager recognizes that portions of
the Drawings and Specifications are at variance therewith, the Construction
Manager shall promptly notify the Architect and Owner in writing.
2.1.9 EQUAL EMPLOYMENT OPPORTUNITY
AND AFFIRMATIVE ACTION
The Construction Manager shall comply with applicable laws, regulations and
special requirements of the Contract Documents regarding equal employment
opportunity and affirmative action programs.
2.3 CONSTRUCTION PHASE
2.3.1 GENERAL
2.3.1.1 The Construction Phase shall commence upon
(2) the Owner's first authorization to the
Construction Manager to:
(a) award a subcontract, or
(b) undertake construction Work with the Construction
Manager's own forces or
(c) issue a purchase order for materials or equipment
required for the Work.
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2.3.2 ADMINISTRATION
2.3.2.1 Those portions of the Work that the Construction Manager does not
customarily perform with the Construction Manager's own personnel shall be
performed under subcontracts or by other appropriate agreements with the
Construction Manager. The Construction Manager shall obtain bids from
Subcontractors and from suppliers of materials or equipment fabricated to a
special design for the Work from the list previously reviewed and, after
analyzing such bids, shall deliver such bids to the Owner and Architect. The
Owner shall then determine with the advice of the Construction Manager and
subject to the reasonable objection of the Architect, which bids will be
accepted. The Owner may designate specific persons or entities from whom the
Construction Manager shall obtain bids; however, if the Guaranteed Maximum Price
has been established, the Owner may not prohibit the Construction Manager from
obtaining bids from other qualified bidders. The Construction Manager shall not
be required to contract with anyone to whom the Construction Manager has
reasonable objection.
2.3.2.2 If the Guaranteed Maximum Price has been established and a specific
bidder among those whose bids are delivered by the Construction Manager to the
Owner and Architect (1) is recommended to the Owner by the Construction Manager;
(2) is qualified to perform that portion of the Work; (3) has submitted a bid
which conforms to the requirements of the Contract Documents without
reservations or exceptions, but the Owner requires that another bid be accepted,
then the Construction Manager may require that a change in the Work be issued to
adjust the Contract Time and the Guaranteed Maximum Price by the difference
between the bid of the person or entity recommended to the Owner by the
Construction Manager and the amount of the subcontract or other agreement
actually signed with the person or entity designated by the Owner.
2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or
equipment fabricated to a special design shall conform to the payment provisions
of Subparagraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost
plus a fee without the prior consent of the Owner.
2.3.2.4 The Construction Manager shall schedule and conduct meetings at which
the Owner, Architect, Construction Manager and appropriate Subcontractors can
discuss the status of the Work. The Construction Manager shall prepare and
promptly distribute meeting minutes.
2.3.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price
proposal, the Construction Manager shall prepare a schedule in accordance with
Paragraph 3.10 of AIA Document A201, including the Owner's occupancy
requirements.
2.3.2.6 The Construction Manager shall provide monthly written reports to the
Owner and Architect on the progress of the entire Work. The Construction Manager
shall maintain a daily log containing a record of weather, Subcontractors
working on the site, number of workers, Work accomplished, problems encountered
and other similar relevant data as the Owner may reasonably require. The log
shall be available to the Owner and Architect.
2.3.2.7 The Construction Manager shall develop a system of cost control for the
Work, including regular monitoring of actual costs for activities in progress
and estimates for uncompleted tasks and proposed changes. The Construction
Manager shall identify variances between actual and estimated costs and report
the variances to the Owner and Architect at regular intervals.
2.4 PROFESSIONAL SERVICES
The Construction Manager shall not be required to provide professional services
which constitute the practice of architecture or engineering, unless such
services are specifically required by the Contract Documents for a portion of
the Work or unless the Construction Manager has specifically agreed in writing
to provide such services. In such event, the Construction Manager shall cause
such services to be performed by appropriately licensed professionals.
2.5 UNSAFE MATERIALS
In addition to the provisions of Paragraph 10.1 in AIA Document A201, if
reasonable precautions will be inadequate to prevent foreseeable bodily injury
or death to persons resulting from a material or substance encountered but not
created on the site by the Construction Manager, the Construction Manager shall,
upon recognizing the condition, immediately stop work in the affected area and
report the condition to the Owner and Architect in writing. The Owner,
Construction Manager and Architect shall then proceed in the same manner
described in Subparagraph 10.1 .2 of AIA Document A201. The Owner shall be
responsible for obtaining the services of a licensed laboratory to verify the
presence or absence of the material or substance reported by the Construction
Manager and, in the event such material or substance is found to be present, to
verify that it has been rendered harmless. Unless otherwise required by the
Contract Documents, the Owner shall furnish in writing to the
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Construction Manager and Architect the names and qualifications of persons or
entities who are to perform tests verifying the presence or absence of such
material or substance or who are to perform the task of removal or safe
containment of such material or substance. The Construction Manager and
Architect will promptly reply to the Owner in writing stating whether or not
either has reasonable objection to the persons or entities proposed by the
Owner. If either the Construction Manager or Architect has an objection to a
person or entity proposed by the Owner, the Owner shall propose another to whom
the Construction Manager and Architect have no reasonable objection.
ARTICLE 3
OWNER'S RESPONSIBILITIES
3.1 INFORMATION AND SERVICES
3.1.1 The Owner shall provide full information in a timely manner regarding the
requirements of the Project, including a program which sets forth the Owner's
objectives, constraints and criteria, including space requirements and
relationships, flexibility and expandability requirements, special equipment and
systems, and site requirements.
3.1.2 The Owner, upon written request from the Construction Manager, shall
furnish evidence of Project financing prior to the start of the Construction
Phase and from time to time thereafter as the Construction Manager may request.
Furnishing of such evidence shall be a condition precedent to commencement or
continuation of the Work.
3.1.3 The Owner shall establish and update an overall budget for the Project,
based on consultation with the Construction Manager and Architect, which shall
include contingencies for changes in the Work and other costs which are the
responsibility of the Owner.
3.1.4 STRUCTURAL AND ENVIRONMENTAL
TESTS, SURVEYS AND REPORTS
In the Preconstruction Phase, the Owner shall furnish the following with
reasonable promptness and at the Owner's expense, and the Construction Manager
shall be entitled to rely upon the accuracy of any such information, reports,
surveys, drawings and tests described in Clauses 3.1.4.1 through 3.1.4.4, except
to the extent that the Construction Manager knows of any inaccuracy:
3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the
site which are required by law.
3.1.4.2 Surveys describing physical characteristics, legal limitations and
utility locations for the site of the Project, and a written legal description
of the site. The surveys and legal information shall include, as applicable,
grades and lines of streets, alleys, pavements and adjoining property and
structures; adjacent drainage; rights-of-way, restrictions, easements,
encroachments, zoning, deed restrictions, boundaries and contours of the site;
locations, dimensions and necessary data pertaining to existing buildings, other
improvements and trees; and information concerning available utility services
and lines, both public and private, above and below grade, including inverts and
depths. All information on the survey shall be referenced to a project
benchmark.
3.1.4.3 The services of geotechnical engineers when such services are requested
by the Construction Manager. Such services may include but are not limited to
test borings, test pits, determinations of soil bearing values, percolation
tests, evaluations of hazardous materials, ground corrosion and resistivity
tests, including necessary operations for anticipating subsoil conditions, with
reports and appropriate professional recommendations.
3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests
for hazardous materials, and other laboratory and environmental tests,
inspections and reports which are required by law.
3.1.4.5 The services of other consultants when such services are reasonably
required by the scope of the Project and are requested by the Construction
Manager.
3.2 OWNER'S DESIGNATED REPRESENTATIVE
The Owner shall designate in writing a representative who shall have express
authority to bind the Owner with respect to all matters requiring the Owner's
approval or authorization. This representative shall have the authority to make
decisions on behalf of the Owner concerning estimates and schedules,
construction budgets, and changes in the Work, and shall render such decisions
promptly and furnish information expeditiously, so as to avoid unreasonable
delay in the services or Work of the Construction Manager.
3.3 ARCHITECT
The Owner shall retain an Architect to provide the Basic Services, including
normal structural, mechanical and electrical engineering services, other than
cost estimating services, described in the edition of AIA Document B141 current
as of the date of this Agreement. The Owner shall authorize and cause the
Architect to provide those
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Additional Services described in AIA Document B141 requested by the Construction
Manager which must necessarily be provided by the Architect for the
Preconstruction and Construction Phases of the Work. Such services shall be
provided in accordance with time schedules agreed to by the Owner, Architect and
Construction Manager. Upon request of the Construction Manager, the Owner shall
furnish to the Construction Manager a copy of the Owner's Agreement with the
Architect, from which compensation provisions may be deleted.
3.4 LEGAL REQUIREMENTS
The Owner shall determine and advise the Architect and Construction Manager of
any special legal requirements relating specifically to the Project which differ
from those generally applicable to construction in the jurisdiction of the
Project. The Owner shall furnish such legal services as are necessary to provide
the information and services required under Paragraph 3.1.
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ARTICLE 4
COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES
The Owner shall compensate and make payments to the Construction Manager for
Preconstruction Phase services as follows:
4.1 COMPENSATION
4.1.1 For the services described in Paragraphs 2.1 and 2.2 the Construction
Manager's compensation shall be calculated as follows:
(State basis of compensation, whether a stipulated sum, multiple of
Direct Personnel Expense, actual cost, etc. Include a statement of
reimbursable cost items as applicable)
Compensation based on a multiple of 2 times Direct Personnel Expenses
(as defined in 4.1.3) of Construction Manager's personnel, plus the
following reimbursable costs item: long distance telephone, fax
transmission, consultants, design services, reproduction costs, travel
expenses, computer time for scheduling. Time spent on the project by
the Principal-in-Charge is not reimbursable.
4.1.3 If compensation is based on a multiple of Direct Personnel Expense, Direct
Personnel Expense is defined as the direct salaries of the Construction
Manager's personnel engaged in the Project and the portion of the cost of their
mandatory and customary contributions and benefits related thereto, such as
employment taxes and other statutory employee benefits, insurance, sick leave,
holidays, vacations, pensions and similar contributions and benefits.
4.2 PAYMENTS
4.2.1 Payments shall be made monthly following presentation of the Construction
Manager's invoice and, where applicable, shall be in proportion to services
performed.
4.2.2 Payments are due and payable fifteen (15) days from the date the
Construction Manager's invoice is received by the Owner. Amounts unpaid after
the date on which payment is due shall bear interest at the rate entered below,
or in the absence thereof, at the legal rate prevailing from time to time at the
place where the Project is located.
4.2.3 The sum of the Preconstruction Compensation (4.1.1) is guaranteed not to
exceed ONE HUNDRED FORTY THOUSAND DOLLARS ($140,000.00).
the location (Usury law's and requirements under the Federal Truth and Lending
Act, similar state and local consumer credit laws and other regulations at the
Owner's and Construction Manager's principal places of business of the Project
and elsewhere may affect the validity of this provision. Legal advice should be
obtained with respect to deletions or modifications. and also regarding
requirements such as written disclosures or waivers.)
ARTICLE 5
COMPENSATION FOR CONSTRUCTION PHASE SERVICES
The Owner shall compensate the Construction Manager for Construction Phase
services as follows:
5.1 COMPENSATION
5.1.1 For the Construction Manager's performance of the Work as described in
Paragraph 2.3, the Owner shall pay the Construction Manager in current funds the
Contract Sum consisting of the Cost of the Work as defined in Article 6 and the
Construction Manager's Fee determined as follows:
(State a lump sum, percentage of actual Cost of the Work or other provision for
determining the Construction Manager's Fee, and explain how the Construction
Manager's Fee is to be adjusted for changes in the Work.)
The Construction Manager's Fee shall be based upon three and one-half percent
(3 1/2%) of the Cost of the Work.
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5.2 GUARANTEED MAXIMUM PRICE
No Guaranteed Maximum Price will be developed.
5.3 CHANGES IN THE WORK
5.3.2 In calculating adjustments to subcontracts (except those awarded with the
Owner's prior consent on the basis of cost plus a fee), the terms "cost" and
"fee" as used in Clause 7.333 of AIA Document A201 and the terms "costs" and "a
reasonable allowance for overhead and profit" as used in Subparagraph 7.3.6 of
AIA Document A201 shall have the meanings assigned to them in that document and
shall not be modified by this Article 5. Adjustments to subcontracts awarded
with the Owner's prior consent on the basis of cost plus a fee shall be
calculated in accordance with the terms of those subcontracts.
5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs"
as used in the above-referenced provisions of AIA Document A201 shall mean the
Cost of the Work as defined in Article 6 of this Agreement and the terms "and a
reasonable allowance for overhead and profit" shall mean the Construction
Manager's Fee as defined in Subparagraph 5.1.1 of this Agreement.
5.3.4 If no specific provision is made in Subparagraph 5.1.1 for adjustment of
the Construction Manager's Fee in the case of changes in the Work, or if the
extent of such changes is such, in the aggregate, that application of the
adjustment provisions of Subparagraph 5.1.1 will cause substantial inequity to
the Owner or Construction Manager, the Construction Manager's Fee shall be
equitably adjusted on the basis of the fee established for the original Work.
ARTICLE 6
COST OF THE WORK FOR CONSTRUCTION PHASE
6.1 COSTS TO BE REIMBURSED
6.1.1 The term "Cost of the Work" shall mean costs necessarily incurred by the
Construction Manager in the proper performance of the Work. Such costs shall be
at rates not higher than those customarily paid at the place of the Project
except with prior consent of the Owner. The Cost of the Work shall include only
the items set forth in this Article 6.
6.1.2 LABOR COSTS
.1 Wages of construction workers directly employed by the
Construction Manager to perform the construction of the Work
at the site or, with the Owner's agreement, at off-site
workshops.
.2 Wages or salaries of the Construction Manager's supervisory
and administrative personnel when stationed at the site with
the Owner's agreement for that portion of their time spent
working on this project at whatever location.
(it is intended that the wages or salaries of certain personnel
stationed at the Construction Manager's principal office or offices
other than the site office shall be included in the Cost of the Work,
such personnel shall be identified below:)
.3 Wages and salaries of the Construction Manager's supervisory
or administrative personnel engaged, at factories, workshops
or on the road, in expediting the production or transportation
of materials or equipment required for the Work, but only for
that portion of their time required for the Work.
.4 Costs paid or incurred by the Construction Manager for taxes,
insurance, contributions, assessments and benefits required by law
or collective bargaining agreements, and, for personnel not
covered by such agreements, customary benefits such as sick leave,
medical and health benefits, holidays, vacations and pensions,
provided that such costs are based on wages and salaries included
in the Cost of the Work under Clauses 6.1,2.1 through 6.1.2.3.
Such costs shall not exceed 48% of such wages and salaries.
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6.1.3 SUBCONTRACT COSTS
Payments made by the Construction Manager to Subcontractors in
accordance with the requirements of the subcontracts.
6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION
.1 Costs, including transportation, of materials and equipment
incorporated or to be incorporated in the completed construction.
.2 Costs of materials described in the preceding Clause 6.1.4.1 in
excess of those actually installed but required to provide
reasonable allowance for waste and for spoilage. Unused excess
materials, if any, shall be handed over to the Owner at the
completion or the Work or, at the Owner's option, shall be sold by
the Construction Manager; amounts realized, if any, from such
sales shall be credited to the Owner as a deduction from the Cost
of the Work.
6.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND
RELATED ITEMS
.1 Costs, including transportation, installation, maintenance,
dismantling and removal of materials, supplies, temporary
facilities, machinery., equipment, and hand tools not customarily
owned by the construction workers, which are provided by the
Construction Manager at the site and fully consumed in the
performance of the Work; and cost less salvage value on such items
if not fully consumed, whether sold to others or retained by the
Construction Manager. Cost for items previously used by the
Construction Manager shall mean fair market value.
.2 Rental charges for temporary facilities, machinery, equipment,
and hand tools not customarily owned by the construction workers,
which are provided by the Construction Manager at the site,
whether rented from the Construction Manager or others, and costs
of transportation, installation, minor repairs and replacements,
dismantling and removal thereof. Rates and quantities of equipment
rented shall be subject to the Owner's prior approval.
.3 Costs of removal of debris from the site.
.4 Reproduction costs, costs of telegrams, facsimile transmissions
and long-distance telephone calls, postage and express delivery
charges, telephone service at the site and reasonable petty cash
expenses of the site office.
.5 That portion of the reasonable travel and subsistence expenses of
the Construction Manager's personnel incurred while traveling in
discharge of duties connected with the Work.
6.1.6 MISCELLANEOUS COSTS
.1 That portion directly attributable to this Contract of premiums
for insurance and bonds.
(If charges for self insurance are to be included, specify the
basis of reimbursement.)
.2 Sales, use or similar taxes imposed by a governmental authority
which are related to the Work and for which the Construction
Manager is liable.
.3 Fees and assessments for the building permit and for other
permits, licenses and inspections for which the Construction
Manager is required by the Contract Documents to pay.
.4 Fees of testing laboratories for tests required by the Contract
Documents, except those related to nonconforming Work other than
that for which payment is permitted by Clause 6.1.8.2.
.5 Royalties and license fees paid for the use of a particular
design. process or product required by the Contract Documents; the
cost of defending suits or claims for infringement of patent or
other intellectual property rights
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arising from such requirement by the Contract Documents; payments
made in accordance with legal judgments against the Construction
Manager resulting from such suits or claims and payments of
settlements made with the Owner's consent; provided, however, that
such costs of legal defenses, judgments and settlements shall not
be included in the calculation of the Construction Manager's Fee
or the Guaranteed Maximum Price and provided that such royalties,
fees and costs are not excluded by the last sentence of
Subparagraph 3.17.1 of AIA Document A201 or other provisions of
the Contract Documents.
.6 Data processing costs related to the Work.
.7 Deposits lost for causes other than the Construction Manager's
negligence or failure to fulfill a specific responsibility to the
Owner set forth in this Agreement.
.8 Legal, mediation and arbitration costs, other than those arising
from disputes between the Owner and Construction Manager,
reasonably incurred by the Construction Manager in the
performance of the Work and with the Owner's written permission,
which permission shall not be unreasonably withheld.
.9 Expenses incurred in accordance with the Construction Manager's
standard personnel policy for relocation and temporary living
allowances of personnel required for the Work, in case it is
necessary to relocate such personnel from distant locations.
6.1.7 OTHER COSTS
.1 Other costs incurred in the performance of the Work if and to the
extent approved in advance in writing by the Owner.
6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Subparagraph 6.1.1
which are incurred by the Construction Manager:
.1 In taking action to prevent threatened damage, injury or loss in
case of an emergency affecting the safety of persons and property,
as provided in paragraph 10.3 or AIA Document A201.
.2 In repairing or correcting damaged or nonconforming Work executed
by the Construction Manager or the Construction Manager's
Subcontractors or suppliers, provided that such damaged or
nonconforming Work was not caused by the negligence or failure to
fulfill a specific responsibility to the Owner set forth in this
Agreement of the Construction Manager or the Construction
Manager's foremen, engineers or superintendents, or other
supervisory administrative or managerial personnel of the
Construction Manager, or the failure of the Construction Manager's
personnel to supervise adequately the Work of the Subcontractors
or suppliers, and only to the extent that the cost of repair or
correction is not recoverable by the Construction Manager from
insurance, Subcontractors or suppliers.
6.1.9 The costs described in Subparagraphs 6.1.1 through 6.1.8 shall be included
in the Cost of the Work notwithstanding any provision of AIA Document A201 or
other Conditions of the Contract which may require the Construction Manager
to pay such costs, unless such costs are excluded by the provisions of
Paragraph 6.2
6.2 COSTS NOT TO BE REIMBURSED
6.2.1 The Cost of the Work shall not include:
.1 Salaries and other compensation of the Construction Manager's
personnel stationed at the Construction Manager's principal office
or offices other than the site office, except as specifically
provided in Clauses 6.1.2.2 and 6.1.2.3.
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.2 Expenses of the Construction Manager's principal office and
offices other than the site office except as specifically provided
in Paragraph 6.1.
.3 Overhead and general expenses, except as may be expressly included
in Paragraph 6.1.
.4 The Construction Manager's capital expenses, including interest on
the Construction Manager's capital employed for the Work.
.5 Rental costs of machinery and equipment, except as specifically,
provided in Subparagraph 6.1.5.2.
.6 Except as provided in Clause 6.1.8.2, costs due to the negligence
of the Construction Manager or to the failure of the construction
Manager to fulfill a specific responsibility to the Owner set
forth in this Agreement.
.7 Costs incurred in the performance of Preconstruction Phase
Services.
.8 Except as provided in Clause 6.1.7.1, any cost not specifically
and expressly described in Paragraph 6.1.
6.3 DISCOUNTS, REBATES AND REFUNDS
6.3.1 Cash discounts obtained on payments made by the Construction Manager shall
accrue to the Owner if (l) before making the payment, the Construction Manager
included them in an Application for Payment and received payment therefor from
the Owner, or (2) the Owner has deposited funds with the Construction Manager
with which to make payments; otherwise, cash discounts shall accrue to the
Construction Manager. Trade discounts, rebates, refunds and amounts received
from sales of surplus materials and equipment shall accrue to the Owner, and the
Construction Manager shall make provisions so that they can be secured.
6.3.2 Amounts which accrue to the Owner in accordance with the provisions of
Subparagraph 6.3.1 shall be credited to the Owner as a deduction from the Cost
of the Work.
6.4 ACCOUNTING RECORDS
6.4.1 The Construction Manager shall keep full and detailed accounts and
exercise such controls as may be necessary for proper financial management under
this Contract; the accounting and control systems shall be satisfactory to the
Owner. The Owner and the Owner's accountants shall be afforded access to the
Construction Manager's records, books, correspondence, instructions, drawings,
receipts, subcontracts, purchase orders, vouchers, memoranda and other data
relating to this Project, and the Construction Manager shall preserve these for
a period of three years after final payment, or for such longer period as may be
required by law
ARTICLE 7
CONSTRUCTION PHASE
7.1 PROGRESS PAYMENTS
7.1.1 Based upon Applications for Payment submitted to the Architect by the
Construction Manager and Certificates for Payment issued by the Architect, the
Owner shall make progress payments on account of the Contract Sum to the
Construction Manager as provided below and elsewhere in the Contract Documents.
7.1.2 The period covered by' each Application for Payment shall be one calendar
month ending on the last day of the month, or as follows:
7.1.3 Provided an Application for Payment is received by the Architect not later
than the 26th day of a month, the Owner shall make payment to the Construction
Manager not later than the 10th day of the month. If an Application for Payment
is received by the Architect after the application date fixed above, payment
shall be made by the Owner not later than fourteen days after the Architect
receives the Application for Payment.
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7.1.4 With each Application for Payment, the Construction Manager shall submit
payrolls, petty cash accounts, receipted invoices or invoices with check
vouchers attached, and any other evidence required by the Owner or Architect to
demonstrate that cash disbursements already made by the Construction Manager on
account of the Cost of the Work equal or exceed (1) progress payments already
received by the Construction Manager; less (2) that portion of those payments
attributable to the Construction Manager's Fee; plus (3) payrolls covered by the
present Application for Payment.
7.1.5 Each Application for Payment shall be based upon the most recent schedule
of values submitted by the Construction Manager in accordance with the Contract
Documents. The schedule of Values shall allocate the entire Guaranteed Maximum
Price amount the various portions of the Work, except that the Construction
Manager's Fee shall be shown as a single separate item. The schedule of values
shall be prepared in such form and supported by such data to substantiate its
accuracy as the Architect may require. This schedule, unless objected to by the
Architect, shall be used as a basis for reviewing the Construction Manager's
Applications for Payment.
7.1.6 Applications for Payment shall show the percentage completion of each
portion of the Work as of the end of the period covered by the Application for
Payment. The percentage 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 which has actually been incurred by the
Construction Manager on account of that portion of the Work for which the
Construction Manager 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.
7.1.7 Subject to other provisions of the Contract 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 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 may be
included as provided in Subparagraph 7.3.7 of AIA Document A201,
even though the Guaranteed Maximum Price has not yet been adjusted
by Change Order.
.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 Construction Manager's Fee, less retainage of five
percent ( 5%). The Construction Manager's Fee shall be computed
upon the Cost of the Work described in the two preceding Clauses
at the rate stated in Subparagraph 5.1.1 or if the Construction
Manager's Fee is stated as a fixed sum in that Subparagraph,
shall be an amount which bears the same ratio to that fixed-sum
Fee as the Cost of the Work the two preceding Clauses bears to a
reasonable estimate of the probable Cost of the Work upon its
completion.
.4 Subtract the aggregate of previous payments made by the Owner.
.5 Subtract the shortfall, if any indicated by the Construction
Manager in the documentation required by Subparagraph 7.1.4 to
substantiate prior Applications for Payment or resulting from
errors subsequently discovered By the Owner's accountants in such
documentation.
.6 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment as provided in Paragraph 9.5
of AIA Document AIA. Document A201.
7.1.8 Except with the Owner's prior approval, payments to subcontractors shall
be subject to retention of not less than five percent ( 5%). The Owner and
the Construction Manager shall agree upon a mutually acceptable procedure for
review and approval of payments and retention for subcontracts.
7.1.9 Except with the Owner's prior approval, the Construction Manager shall not
make advance payments to suppliers for materials or equipment which have not
been delivered and stored at the site.
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7.1.10 In taking action on the Construction Manager's Applications for Payment,
the Architect shall be entitled to reply on the accuracy and completeness of the
information furnished by the Construction Manager and shall not be deemed to
represent that the Architect has made a detailed examination, audit or
arithmetic verification of the documentation submitted in accordance with
Subparagraph 7.1.4 or other supporting data that the Architect has made
exhaustive or continuous on-site inspections or that the Architect has made
examinations to ascertain how or for what purposes the Construction Manager has
used amounts previously paid on account of the Contract. Such examinations,
audits and verifications, if required by the Owner, will be performed by the
Owner's accountants acting in the sole interest of the Owner.
*7.2 FINAL PAYMENT
7.2.1 Final payment shall be made by the Owner to the Construction Manager when
(1) the Contract has been fully performed by the Construction Manager except for
the Construction Manager's responsibility to correct nonconforming Work, as
provided in Subparagraph 12.2.2 of AIA. Document A201 and to satisfy other
requirements, if any, which necessarily survive final payment; (2) a final
application for Payment and a final accounting for the Cost of the Work have
been submitted by the Construction Manager and reviewed by the Owner's
accountants and (3) a final Certificate for Payment has then been issued by the
Architect; such final payment 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:
o 7.1.:1.1 When construction of the Work is 50% complete and the progress of
the Work is satisfactory to the Owner, the retainage referred to
in subparagraph 7.1.7.3 and 7.1.8 shall be reduced to 2 1/2%.
7.2.2 The amount of the final payment shall be calculated as follows:
.1 Take the sum of the Cost of the Work substantiated by the
Construction Manager's final accounting and the Construction
Manager's Fee; but not more than the Guaranteed Maximum Price.
.2 Subtract amounts, if any, for which the Architect withholds, in
whole or in part, a final Certificate for Payment as provided in
Subparagraph 9.5.1 of AIA. Document A201 or other provisions of
the Contract Documents.
.3 Subtract the aggregate of previous payments made by the Owner.
If the aggregate of previous payments made by the Owner exceeds the amount due
the Construction Manager shall reimburse the difference to the Owner.
7.2.3 The Owner's accountants will review and report in writing on the
Construction Manager's final accounting within 30 days after delivery of the
final accounting to the Architect by the Construction Manager. Based upon such
Cost of the work as the Owner's accountants report to be substantiated by the
Construction Manager's final accounting, and provided the other conditions of
Subparagraph 7.2.1 have been met, the Architect will, within seven days after
receipt of the written report of the Owner's accountants, either issue to the
Owner a final Certificate for Payment with a copy to the Construction Manager,
or notify the Construction Manager and Owner in writing of the Architect's
reasons for withholding a certificate as provided in Subparagraph 9.5.1 of AIA
Document A201. The time periods stated in this Paragraph 7.2 supersede those
stated in Subparagraph 9.4.1 of AIA. Document A201.
7.2.4 If the Owner's accountants report the Cost of the work as substantiated by
the Construction Manager's final accounting to be less than claimed by the
Construction Manager, the Construction Manager shall be entitled to proceed in
accordance with Article 9 without a further decision of the Architect. Unless
agreed to otherwise, a demand for mediation or arbitration of the disputed
amount shall be made by the Construction Manager within 60 days after the
Construction Manager's receipt of a copy of the Architect's final Certificate
for Payment. Failure to make such demand within this 60-day period shall result
in the substantiated amount reported by the Owner's accountants becoming binding
on the Construction Manager. Pending a final resolution of the disputed amount,
the Owner shall pay the Construction Manager the amount certified in the
Architect's final Certificate for Payment.
7.2.5 If, subsequent to final payment and at the Owner's request, the
Construction Manager incurs costs described in Paragraph 6.1 and not excluded by
Paragraph 6.2 (1) to correct nonconforming Work, or (2) arising from the
resolution of disputes, the Owner shall reimburse the
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Construction Manager such costs and the Construction Manager's Fee, if any,
related thereto on the same basis as if such costs had been incurred prior to
final payment, but not in excess of the Guaranteed Maximum Price. If the
Construction Manager has participated in savings, the amount of such savings
shall be recalculated and appropriate credit given to the Owner in determining
the net amount to be paid by the Owner to the Construction Manager.
ARTICLE 8
INSURANCE AND BONDS
8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER
During both phases of the Project, the Construction Manager shall purchase and
maintain insurance as set forth in Paragraph 11.1 of AIA. Document A201. Such
insurance shall be written for not less than the following limits, or greater if
required by law:
8.1.1 Workers' Compensation and Employers' Liability meeting statutory limits
mandated by State and Federal laws. If (l) limits in excess of those required by
statute are to be provided or (2) the employer is not statutorily bound to
obtain such insurance coverage or (3) additional coverages are required,
additional coverages and limits for such insurance shall be as follows:
8.1.2 Commercial General Liability including coverage for Premises-Operations,
Independent Contractors' Protective, Products-Completed Operations, Contractual
Liability, Personal Injury, and Broad Form Property Damage (including coverage
for Explosion, Collapse and Underground hazards):
$ 1,000,000 Each Occurrence
---------
$ 1,000,000 General Aggregate
---------
$ 1,000,000 Personal and Advertising Injury
---------
$ 1,000,000 Products-Completed Operations Aggregate
---------
.1 The policy shall be endorsed to have the General Aggregate apply to
this Project only.
.2 Products and Completed Operations insurance shall be maintained for a
minimum period of at least ( ) year(s) after either 90 days
following Substantial Completion or final payment, whichever is earlier.
.3 The Contractual Liability insurance shall include coverage sufficient
to meet the obligations in AIA. Document A201 under Paragraph 3.18.
8.1.3 Automobile Liability (owned, non-owned and hired vehicles) for bodily
injury and property damage: $ 1,000,000 Each Accident
---------
8.1.4 Other coverage:
(If Umbrella Excess Liability coverage is required over the primary insurance or
retention, insert the coverage limits. Commercial General Liability and
Automobile Liability limits may be attained by individual policies or by a
combination of primary policies and Umbrella and/or Excess Liability policies.)
Excess Liability Coverage $ 10,000,000 per occurrence
----------
8.2 INSURANCE REQUIRED OF THE OWNER
During both phases of the Project, the Owner shall purchase and maintain
liability and property insurance, including waivers of subrogation, as set forth
in Paragraphs 11.2 and 11.3 of AIA. Document A201. Such insurance shall be
written for not less than the following limits, or greater if required by law:
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8.2.1 Property Insurance: $ 1,000 Deductible Per Occurrence
-----
Limit shall be full amount of
contract $ 1,000 Aggregate Deductible
-----
8.2.2 Boiler and Machinery insurance with a limit of:
(If not a blanket policy, list the objects to be insured.)
8.3 PERFORMANCE BOND AND PAYMENT BOND
8.3.1 The Construction Manager shall not (Insert "Shall" or '"shall not ")
furnish bonds covering faithful performance of the Contract and payment of
obligations arising thereunder. Bonds may be obtained through the Construction
Manager's usual source and the cost thereof shall be included in the Cost of the
Work. The amount of each bond shall be equal to percent ( %)
of the Contract Sum.
8.3.2 The Construction Manager shall deliver the required bonds to the Owner at
least three days before the commencement of any Work at the Project site.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1
DISPUTE RESOLUTION FOR THE PRECONSTRUCTION PHASE
9.1.1 Claims, disputes or other matters in question between the parties to this
Agreement which arise prior to the commencement of the Construction Phase or
which relate solely to the Preconstruction Phase services of the Construction
Manager or to the Owner's obligations to the Construction Manager during the
Preconstruction Phase, shall be resolved by mediation or by arbitration.
9.1.2 Any mediation conducted pursuant to this Paragraph 9.1 shall be held in
accordance with the Construction Industry Mediation Rules of the American
Arbitration Association currently in effect, unless the parties mutually agree
otherwise. Demand for mediation shall be filed in writing with the other party
to this Agreement and with the American Arbitration Association. Any demand for
mediation shall be made within a reasonable time after the claim, dispute or
other matter in question has arisen. In no event shall the demand for mediation
be made after the date when institution of legal or equitable proceedings based
upon such claim, dispute or other matter in question would be barred by the
applicable statute of limitations.
9.13 Any claim, dispute or other matter in question not resolved by mediation
shall be decided by arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association currently in effect
unless the parties mutually agree otherwise.
9.1.4 Demand for arbitration shall be filed in writing with the other party to
this Agreement and with the American Arbitration Association. A demand for
arbitration may be made concurrently with a demand for mediation and shall be
made within a reasonable time after the claim, dispute or other matter in
question has arisen. In no event shall the demand for arbitration be made after
the date when institution of legal or equitable proceedings based upon such
claim, dispute or other matter in question would be barred by the applicable
statute of limitations.
9.1.5 No arbitration arising out of or relating to the Contract Documents shall
include, by consolidation or joinder or in any other manner, the Architect, the
Architect's employees or consultants, except by written consent containing
specific reference to the Agreement and signed by the Architect, Owner,
Construction Manager and any other person or entity sought to be joined. No
arbitration shall include, by consolidation or joinder or in any other manner,
parties other than the Owner, Construction Manager, a separate contractor as
described in
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Article 6 of AIA Document A201 and other persons substantially involved in a
common question of fact or law whose presence is required if complete relief is
to be accorded in arbitration. No person or entity other than the Owner or
Construction Manager or a separate contractor as described in Article 6 of AIA
Document A201 shall be included as an original third party or additional third
party to an arbitration whose interest or responsibility is insubstantial.
Consent to arbitration involving an additional person or entity shall not
constitute agreement to arbitration of a dispute not described in such consent
or with a person or entity not named or described therein. The foregoing
agreement to arbitrate and other agreements to arbitrate with an additional
person or entity duly consented to by parties to this Agreement shall be
specifically enforceable under applicable law in any court having jurisdiction
thereof.
9.1.6 The award rendered by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any court
having jurisdiction thereof.
9.2 DISPUTE RESOLUTION FOR THE
CONSTRUCTION PHASE
9.2.1 Any other claim, dispute or other matter in question arising out of or
related to this Agreement or breach thereof shall be settled in accordance with
Article 4 of AIA Document A201, except that in addition to and prior to
arbitration, the parties shall endeavor to settle disputes by mediation in
accordance with the Construction Industry Mediation Rules of the American
Arbitration Association currently in effect unless the parties mutually agree
otherwise. Any mediation arising under this Paragraph shall be conducted in
accordance with the provisions of Subparagraphs 9.1.2 and 9.1.3.
9.3 OTHER PROVISIONS
9.3.1 Unless otherwise noted, the terms used in this Agreement shall have the
same meaning as those in the 1987 Edition of AIA Document A201, General
Conditions of the Contract for Construction.
9.3.2 EXTENT OF CONTRACT
This Contract, which includes this Agreement and the other documents
incorporated herein by reference, represents the entire and integrated agreement
between the Owner and Construction Manager and supersedes all prior
negotiations, representations or agreements, either written or oral. This
Agreement may be amended only by written instrument signed by both the Owner and
Construction Manager. If anything in any document incorporated into this
Agreement is inconsistent with this Agreement, this Agreement shall govern.
9.3.3 OWNERSHIP AND USE OF DOCUMENTS
The Drawings, Specifications and other documents prepared by the Architect, and
copies thereof furnished to the Construction Manager, are for use solely with
respect to this Project. They are not to be used by the Construction Manager,
Subcontractors, Sub-subcontractors or suppliers on other projects, or for
additions to this Project outside the scope of the Work, without the specific
written consent of the Owner and Architect. The Construction Manager,
Subcontractors, Sub-subcontractors and suppliers are granted a limited license
to use and reproduce applicable portions of the Drawings, Specifications and
other documents prepared by the Architect appropriate to and for use in the
execution of their Work under the Contract Documents.
9.3.4 GOVERNING LAW
The Contract shall be governed by the law of the place where the Project is
located.
9.3.5 ASSIGNMENT
The Owner and Construction Manager respectively bind themselves, their partners,
successors, assigns and legal representatives to the other party hereto and to
partners, successors, assigns and legal representatives of such other party in
respect to covenants, agreements and obligations contained in the Contract
Documents. Neither party to the Contract shall assign the Contract as a whole
without written consent of the other. If either party attempts to make such an
assignment without such consent, that party shall nevertheless remain legally
responsible for all obligations under the Contract.
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ARTICLE 10
TERMINATION OR SUSPENSION
10.1 TERMINATION PRIOR TO ESTABLISHING
GUARANTEED MAXIMUM PRICE
10.1.1 Prior to execution by both parties of Amendment No. l establishing the
Guaranteed Maximum Price, the Owner may terminate this Contract at any time
without cause, and the Construction Manager may terminate this Contact for any
of the reasons described in Subparagraph 14.1.1 of AIA Document A201.
10.1.2 If the Owner or Construction Manager terminates this Contract pursuant to
this Paragraph 10.1 prior to commencement of the Construction Phase, the
Construction Manager shall be equitably compensated for Preconstruction Phase
services performed prior to receipt of notice of termination; provided, however,
that the compensation for such services shall not exceed the compensation set
forth in Subparagraph 4.1.1.
10.1.3 If the Owner or Construction Manager terminates this Contract pursuant to
this Paragraph 10.1 after commencement of the Construction Phase, the
Construction Manager shall, in addition to the compensation provided in
Subparagraph 10.1.2, be paid an amount calculated as follows:
.1 Take the Cost of the Work incurred by the Construction Manager.
.2 Add the Construction Manager's Fee computed upon the Cost of the Work to
the date of termination at the rate stated in Paragraph 5.1 or, if the
Construction Manager's Fee is stated as a fixed sum in that Paragraph, an
amount which bears the same ratio to that fixed sum Fee as the Cost of
Work at the time of termination bears to a reasonable estimate of the
probable Cost of the Work upon its completion.
.3 Subtract the aggregate of previous payments made by the Owner on account
of the Construction Phase.
The Owner shall also pay the Construction Manager fair compensation, either by
purchase or rental at the election of the Owner, for any equipment owned by the
Construction Manager which the Owner elects to retain and which is not otherwise
included in the Cost of the Work under Clause 10.1.3.1. To the extent that the
Owner elects to take legal assignment of subcontracts and purchase orders
(including rental agreements), the Construction Manager shall, as a condition of
receiving the payments referred to in this Article 10, execute and deliver all
such papers and take all such steps, including the legal assignment of such
subcontracts and other contractual rights of the Construction Manager, as the
Owner may require for the purpose of fully vesting in the Owner the rights and
benefits of the Construction Manager under such subcontracts or purchase orders.
Subcontracts, purchase orders and rental agreements entered into by the
Construction Manager with the Owner's written approval prior to the execution of
Amendment No. 1 shall contain provisions permitting assignment to the Owner as
described above. If the Owner accepts such assignment, the Owner shall reimburse
or indemnify the Construction Manager with respect to all costs arising under
the subcontract, purchase order or rental agreement except those which would not
have been reimbursable as Cost of the Work if the contract had not been
terminated. If the Owner elects not to accept the assignment of any subcontract,
purchase order or rental agreement which would have constituted a Cost of the
Work had this agreement not been terminated, the Construction Manager shall
terminate such subcontract, purchase order or rental agreement and the Owner
shall pay the Construction Manager the costs necessarily incurred by the
Construction Manager by reason of such termination.
10.2 TERMINATION SUBSEQUENT TO ESTABLISHING
GUARANTEED MAXIMUM PRICE
Subsequent to execution by both parties of Amendment No. 1, the Contract may be
terminated as provided in Article 14 of AIA Document A201.
10.2.1 In the event of such termination by the Owner, the amount payable to the
Construction Manager pursuant to Subparagraph 14.1.2 of AIA Document A201 shall
not exceed the amount the Construction Manager would have been entitled to
receive pursuant to Subparagraphs 10.1.2 and 10.1 of this Agreement.
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10.2.2 In the event of such termination by the Construction Manager, the amount
to be paid to the Construction Manager under Subparagraph 14.1.2 of AIA Document
A201 shall not exceed the amount the Construction Manager would be entitled to
receive under Subparagraphs 10.1.2 or 10.1.3 above, except that the Construction
Manager's Fee shall be calculated as if the Work had been fully completed by the
Construction Manager, including a reasonable estimate of the Cost of the Work
for Work not actually completed.
10.3 SUSPENSION
The Work may be suspended by the Owner as provided in Article 14 of AIA Document
A201; in such case, the Guaranteed Maximum Price, if established, shall be
increased as provided in Subparagraph 14.3.2 of AIA Document A201 except that
the term "cost of performance of the Contract" in that Subparagraph shall be
understood to mean the Cost of the Work and the term "profit" shall be
understood to mean the Construction Manager's Fee as described in Subparagraphs
5.1.1 and 5.3.4 of this Agreement.
ARTICLE 11
OTHER CONDITIONS AND SERVICES
11.1
The total cost of the Construction Manager's general conditions as listed on
Exhibit A attached shall not exceed 3 1/4% (three and one-quarter percent) of
the final contract cost.
11.2
Should the Construction Phase extend beyond seven months through no fault of the
Construction Manager, the Construction Manager shall be entitled to additional
reimbursement for general conditions as listed on Exhibit A and not to exceed
$46,000 per month.
11.3
In accordance with Paragraph 2.4, the Construction Manager shall secure the
design of the Mechanical, Electrical, and Plumbing Systems as part of the
pre-construction services.
This Agreement entered into as of the day and year first written above.
OWNER: PNGI Charles Town Gaming Limited CONSTRUCTION MANAGER:
Liability Company Warfel Construction
Company
By: /s/ Peter M. Carlino By: /s/ T. W. Peters, Pres
------------------------------- ------------------------------
Date: December 17, 1996 Date: December 23, 1996
----------------- -----------------
ATTEST: /s/ Susan Montgomery Witness: /s/ Carol A. Burkholder
------------------------- --------------------------
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