EXHIBIT 10.12
PROJECT: WDW PROPERTY WIDE CABLE TV SIGNAL LEAK TESTING
CONTRACT NUMBER: 99DH-1724
MASTER AGREEMENT FOR CONSTRUCTION
THIS AGREEMENT, made effective as of the August 18, 1999, and terminating as of
the September 30, 2000, by and between Xxxx Disney World Co. ("herein referred
to as the Owner"), whose mailing address is Attention Contract Services, X.X.
Xxx 00000, Xxxx Xxxxx Xxxxx XX 00000-0000, and Suncoast Automation, Inc. (herein
referred to as the "Contractor"), whose mailing address is 000 Xxxxx Xxxxxx
Xxx., Xxxxxxxx X, XX 00000.
WITNESSETH
In consideration of the mutual covenants hereinafter set forth, the parties
hereto agree as follows:
Article 1
DEFINITIONS: THE CONTRACT DOCUMENTS
The capitalized terms used herein shall have the meanings set forth in the
General Conditions of the Contract for Construction (herein referred to as the
"General Conditions") unless a specific definition therefor is provided herein.
Unless otherwise specified, references herein to numbered articles and
paragraphs are to those in this agreement. This Agreement56 shall be referred to
throughout the Contract Documents as the "Agreement."
The Contract Documents consist of this Agreement the Conditions of the Contract
(General, Special, Supplementary and other Conditions), the Drawings, the
specifications, Unit Rate Schedules, Hourly Rate Schedules, Equipment Rental
Rate Schedules, Xxxx Disney World Co. Work Authorization, all Addenda (except
portions thereof relating purely to any of the bidding forms or bidding
procedures), all Modifications and all other documents enumerated on the
attached "List of Contract Documents". Such documents for the Contract and all
are as fully a part thereof as if attached to this Agreement or repeated herein.
Article 2
STATEMENT OF THE WORK
The Contractor shall promptly furnish and pay for, in strict compliance with the
Work Authorization procedures established herein, all materials (except those
materials specifically identifies as "Owner furnished") tools, equipment. Labor,
permits, licenses, transportation, and professional and nonprofessional services
and shall perform all other acts and supply all other things necessary to fully
and properly perform and complete all Work assigned by the Owner's
representative by individual work authorizations. If the work is to be Performed
on a unit rate or time and material basis, work shall be performed in accordance
with Exhibit "D" and the unit rate pricing or unit labor plus material pricing
established herein, which prices shall include overhead and profit and all other
direct or indirect costs or any nature. The Owner's representative reserves the
exclusive right to determine the amount of work, if any, to be provided by the
Contractor under this Agreement.
The following listed documents are applicable to the foregoing Work.
A. The Agreement
B. Special Contract Conditions
C. Supplementary Condition
D. Specifications: As stated on each work authorization and/or in accordance
with Epcot@ Building Codes, latest edition, and all other applicable codes
and regulations; and Design Standard for the Attachment of F. Overhead
Objects, Rev. 1, dated 1/23/95, 19 pages
E. General Conditions of the Contract for Construction, pages 1 through 19,
February, 1998, ed.
F. Contractor's Guarantee, 1 page
G. Application for Payment
H. General Release
I. Change Order form June, 1990, xx
X. Close-Out Change Order for June, 1990, ed.
K. Exhibit "A", Unit Rate Schedule
L. Exhibit "B", Hourly Labor Rate Schedule
M. Exhibit "C", Equipment Rental Rate Schedule
N. Exhibit "D", XXXX DISNEY WORLD Work Authorization
X. Xxxxx Creed Confined Spaces Definition and Entry Procedures, revised
December, 1989
The Contractor shall further provide and pay for all related facilities
described in any of the Contract Documents, including all work expressly
specified therein and such additional work as may be reasonably inferred
therefrom, saving and excepting only such items of work as are specifically
stated in the Contract Documents not to be the obligation of the Contractor. The
totality of the obligations imposed upon the Contractor by this Article and by
all other provisions of the Contract Documents, as well as the structures to be
built and the labor to be performed, is herein referred to as the "Work".
Article 3
OWNER'S REPRESENTATIVE
The Owner's authorized representative (herein referred to as the "Owner's
Representative") shall be the project manager identified by individual Work
Authorization and whose mailing address is Xxxx Disney World Co., Xxxx Xxxxxx
Xxx 0000, Xxxx Xxxxx Xxxxx, Xxxxxxx 00000-0000, provided, however, that the
Owner may, without liability to the Contractor, unilaterally amend this Article
from time to time by designating a different person or organization to act as
its representative and so advising the Contractor in writing at which time the
person or organization so designated shall be the Owner's Representative for
purposes of this Contract.
Article 4
THE ARCHITECT/ENGINEER
The Architect/Engineer for the Project (herein referred to as the "A/E") is not
applicable.
Article 5
TIME OF COMMENCEMENT AND COMPLETION
5.1 The Contractor shall commence the Work promptly upon receipt of Work
Authorization from the Owner and shall complete all work as schedule thereon
(such period of time is herein referred to as the "Contract Time") and in
accordance with such interim milestone dates (herein referred to as the
"Milestones") as may be specified in such Work Authorization. The Contract Time
and any such Milestones are of the essence of the Contract.
5.2 If any Work is performed by the Contractor prior to the execution of this
Agreement or issuance of a Work Authorization based on receipt of written notice
to proceed, all such Work performed shall be in accordance with and governed by
the Contract Documents.
5.3 The Contractor acknowledges that the Owner has made no warranties to the
Contractor, expressed or implied, that the Contractor will be able to follow a
normal, orderly sequence in the performance of the Work or that there will be no
delays in, or interference with, the Work.
Article 6
CONTRACT PRICING
6.1 Provided that the Contractor shall strictly and completely perform all of
its obligations under the Contract Documents, and subject only to additions and
deductions by Change Order or as otherwise provided in the General Conditions,
the Owner shall pay to the Contractor, in current funds and at the times and in
the installments herteinafter specified, the sum as stated on each Work
Authorization (herein referred to as the "Contract Sum") to cover the
Contractor's profit and general overhead and all costs and expenses of any
nature whatsoever (including, without limitation, taxes, labor and materials),
foreseen or unforeseen, and any increases in said costs and expenses, incurred
by the Contractor in connection with the performance of the Work, all of which
costs and expenses shall be borne solely by the Contractor.
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6.2 Unit Pricing - If the Owner elects to have work performed based on the Unit
Rates established herein, the Contractor's payment shall be based upon the
product of all units provided by the Contractor multiplied by the unit rates
established for such Work (as such units and unit rates are defined in the Unit
Rates Schedules), which product shall cover the Contractor's profit and general
overhead and all costs and expenses of any nature whatsoever (including, without
limitation, taxes, transportation, material handling mall tools, labor and
materials), foreseen or unforeseen, and any increases in said costs and
expenses, incurred by the Contractor in connection with the performance of the
Work, all of which costs and expenses shall be borne solely by the Contractor.
6.2.1 Unit Labor Plus Material Pricing - If the Owner elects to have work
performed based on the Unit Labor Rates established herein, the Contractor's
payment shall be based upon the product of all labor hours expended at the job
site multiplied by the unit labor rates (as such unit rates are established
herein), which product shall cover the Contractor's profit and general overhead
and all costs and expenses of any nature whatsoever (including, without
limitation, taxes, payroll costs, and all other support or indirect costs of
whatever nature). Material costs shall be paid by actual material invoice plus
any xxxx-ups as allowed by Article 12 of the General Conditions of the Contract
for Construction.
6.2.2 Equipment Rental Rates - Payment for equipment rental used in conjunction
with the unit labor plus material pricing stated in paragraph 6.3.1 above (as
such unit rates are established in the Equipment Unit Rate Schedule) is for all
Contractor-owned construction equipment with a new value of One Thousand Dollars
($1,000.00) or more, authorized for use in the work. Agreed rates for each piece
of equipment include mobilization, demobilization, fuel, maintenance, insurance
and all other ownership costs required for a fully operational unit Equipment
Operator costs shall be reimbursed in accordance with the rates established in
the Labor Rate Schedules attached hereto.
6.2.3 Reimbursement for equipment rented from a third party shall consist of
actual invoice cost to Contractor plus six percent (6%) markup, and shall be
consistent with local standard rental rates, subject to approval by Owner.
6.2.4 Small Tool Allowance - Small tools, as defined in the attached List of
Items to be Classed as Small Tools, shall be reimbursed at a total cost of three
percent (3%) of total gross labor.
6.3 A separate consideration of Ten Dollars($10.00) to be paid by the Owner to
the Contractor as the specific consideration for those provisions contained in
the Contract Documents which provide for indemnity and/or guarantee among the
Owner, the Owner's Representative, the A/E, their respective parent companies,
the subsidiary, related and affiliated companies of each, as well as the
officers, directors, agents and employees of each, the Contractor, any
Subcontractor, Sub-subcontractor, or any combination of the foregoing, whereby
any such person is granted indemnification form liability for damages to persons
or property caused in whole or in part by any act, omission or/default of any of
the above named persons arising form the Contract or its performance. The said
specific consideration for such indemnification is paid to the Contractor by the
Owner on behalf of the Owner, the Owner's Representative, the A/E, their
respective parent companies, the subsidiary, related and affiliated companies of
each, and the officers, directors, agents and employees of each, and is
allocated to, and shall be deemed to have been paid out of, the first
installment of the Contract Sum Payable hereunder.
Article 7
PROGRESS PAYMENTS AND FINAL PAYMENT OF THE CONTRACT SUM
7.1 Based on the Contractor's Application for Payment, the schedule of values or
the Unit Rate Schedule submitted by the Contractor and approved by the Owner,
and the approval of the Application for Payment issued by the Owner pursuant to
Article 9 of the General Conditions, the Owner shall make monthly payments to
the Contractor for Work in place. Such monthly payments shall be made on or
before the fifteenth (15th) day of each calendar month or the twentieth (20th)
day after receipt by the Owner of the Contractor's Application for Payment, of
such documentation, in proper form, to substantiate the amount owed and of such
other documentation as the Owner may require pursuant to Article 9 of the
General conditions, whichever is later, provide, however, that the Owner shall
have no obligation to make payment ass aforesaid if it has withheld approval
thereof as permitted under subparagraph 9.3.1. of the General Conditions or if
the Contractor has not submitted to the Owner with its Application for Payment
all required documentation. Each such monthly payment shall be in an amount
equal to one-hundred percent (100%) of the net amount allowed the Contractor for
Work in place through the Payment Application Date, as indicated in the Owner's
approval of Application for Payment, after deducting any sums withheld by the
Owner pursuant to the Contract documents.
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7.2 Pursuant to the pricing provisions herein, Final payment, constituting the
entire unpaid balance due the Contractor, shall be paid by the Owner to the
Contractor within sixty (60) days after approval by the Owner's Representative
of the final Application for Payment, provided, however, the final payment shall
in no event be due unless and until the Contractor shall have complied with all
provisions of the Contract Documents, including those contained in Subparagraph
9.4.2 of the General Conditions.
Article 8
CONTRACTOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 The Contractor hereby represents and warrants to the Owner that:
(a) it is duly licensed to observe and perform the terms, covenants,
condidtions and other provisions on its part to be observed or performed
hereunder;
(b) it is experienced and skilled in the construction and Work of the type
described in, or required by, the Contract Documents;
(c) all equipment and materials used in connection with the Work shall be
new (except if otherwise required by the Specifications) and the equipment, the
materials and Work shall be of the best quality, free from fault and defects and
shall strictly conform to the Contract Documents; and
(d) it has, by careful examination satisfied itself as to: (i) the nature,
location and character of the Job Site including, without limitation, the
surface and subsurface conditions of the land and all structures and
obstructions thereon, both natural and manmade, surface water conditions of the
Job Site and the surrounding area and, to the extent pertinent to the Work, all
other conditions; (ii) the nature location and character of the general area in
which the Job Site is located including, without limitation, its climatic
conditions, the availability and cost of labor and the availability and cost of
materials, tools and equipment; (iii) The quality and quantity of all materials,
supplies, tools, equipment, labor and professional services necessary to
complete the Work in the manner required by the Contract Documents; and (iv) all
other matters or things which could in any manner affect the performance of the
Work. Without limitation on the foregoing, the Contractor recognizes the
physical and operational restrictions on carrying on the Work in or about the
Project.
8.2. The Contractor accepts the relationship of trust and confidence established
by this Agreement between it and the Owner. It covenants with the Owner that it
shall furnish its best skill and judgement and cooperate with the Owner in
furthering the interests of the Owner, Furnish efficient business administration
and superintendent and an adequate supply of workmen, equipment, tools and
materials at all times; and perform the Work in the best and soundest way and in
the most expeditious and economical manner consistent with the best interests of
the Owner.
Article 9
TERMINATION
Termination of the contract by the Owner, with or without cause, and by the
Contractor are provided for in Article 15 of the General Conditions. If the
Owner terminates the Contract pursuant to Paragraph 15.2 of the General
Conditions, and the unpaid balance of any and all outstanding Work
Authorizations awarded under this contract exceeds the costs and expenses
incurred by or on behalf of the owner in finishing the Work, including
compensation for any additional architectural, engineering, management and
administrative services, such excess shall, upon the completion of the Work, be
paid to the Contractor. If such costs exceed such unpaid balance, the Contractor
shall pay the difference to the Owner upon demand.
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Article 10
USE OF OWNER'S NAME/CONFIDENTIALITY
The Contractor, by virtue of this Contract, shall acquire no right to use, and
shall not use, the name of the Owner or the name "Disney" (either alone or in
conjunction with or as a part of any other work, xxxx or name) or any marks,
fanciful characters or designs of the Xxxx Disney company or any of its related
affiliated or subsidiary companies: in any advertising, publicity or promotion;
to express or imply any endorsement or the Contractor's Work or services; or in
any other manner whatsoever (whether or not similar to the foregoing used
hereinabove specifically prohibited). The Contractor may, during the course of
its engagement hereunder, have access to, and acquire knowledge of or from,
material, data, strategies, systems or other information relating to the Work,
the Project or the Owner, or its parent, affiliated, or related companies, which
may not be accessible or known to the general public. Any such knowledge
acquired by the Contractor shall be kept confidential and shall not be used,
published or divulged by the Contractor to any other person. Firm or
corporation, or in any advertising or promotion regarding the Contractor or its
Work or services, or in any other manner or connection whatsoever without first
having to obtained the written permission of the Owner, which permission the
Owner may withhold in its sole discretion.
Article 11
LEGAL PROCEEDINGS
11.1 The Contract Documents shall be construed and interpreted in accordance
with the laws of the State of Florida and shall constitute the entire and sole
understanding of the parties hereto notwithstanding any prior oral or written
statements, instructions, agreements, representations, or other communications.
11.2 Any legal proceeding of any nature brought by either party against the
other to enforce any right or obligation under this Contract, or arising out of
any matter pertaining to this Contract or the Work to be performed hereunder,
shall be submitted for trial, without jury, before the Circuit court of the
Ninth judicial Circuit in and for Orange County, Florida; or, if the Circuit
Court does not have jurisdiction, then before the United States District Court
for the Middle District of Florida (Orlando Division); process outside the State
of Florida in any matter to be submitted to any such court pursuant hereto, and
expressly waive all rights to trail by jury regarding any such matter.
In the event that any provision of any of the Contract Documents is judicially
construed to be invalid by a court of competent jurisdiction, such provision
shall then be construed in a manner allowing its validity or, if this leads to
any impracticable result, shall be stricken but, in either event all other
provisions of the Contract Documents shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
effective as of the day and year first above written.
OWNER
XXXX DISNEY WORLD CO.
Authorized
Signature__________________________ Date___________
Print Name/Title __________________
__________________________
__________________________
CONTRACTOR
SUNCOAST AUTOMATION, INC.
Authorized
Signature__________________________ Date___________
Print Name/Title __________________
__________________________
__________________________
CONTRACTOR'S CORPORATE SEAL
__________________________
__________________________
-or-
WITNESSES:
(1) ____________________________
(2) ____________________________
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