EXHIBIT 10.9
AIA DOCUMENT A101-1997
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR
WHERE THE BASIS OF PAYMENT IS A STIPULATED SUM
This document has
important legal
AGREEMENT made as of the 17th day of February consequences.
in the year 1998 Consultation with
(IN WORDS, INDICATE DAY, MONTH AND YEAR) an attorney is
encouraged with
respect to its
completion or
modification.
BETWEEN the Owner: HARD ROCK HOTEL, INC.
(Name, address and other 0000 Xxxxxxxx Xxxx
xxxxxxxxxxx) Xxx Xxxxx, XX 00000
AIA Document
A201-1997,
General Conditions
of the Contract for
Construction, is
adopted in this
document by
reference. Do not
use with other
general conditions
and the Contractor: unless this
(NAME, ADDRESS AND OTHER INFORMATION) document is
modified.
X.X. XXXX CONSTRUCTION, INC.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000 This document has
been approved and
endorsed by The
Associated General
Contractors of
America.
The Project is: HARD ROCK HOTEL & CASINO
(NAME AND LOCATION) PARKING GARAGE
Parking Garage
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
The Architect is: KLAI::JUBA
(NAME, ADDRESS AND 0000 Xxxx Xxxxxxx Xxxx
OTHER INFORMATION) Suite J
Xxx Xxxxx, XX 00000 [LOGO]
The Owner and Contractor agree as follows.
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ARTICLE 1 THE CONTRACT DOCUMENTS
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 8.
ARTICLE 2 THE WORK OF THIS CONTRACT
The Contractor shall fully execute the Work described in the Contract
Documents, except to the extent specifically indicated in the Contract
Documents to be the responsibility of others.
ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement of the Work shall be the date of this
Agreement 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.) February 18, 1998
If, prior to the commencement of the Work, the Owner requires time to
file mortgages, mechanic's liens and other security interests, the
Owner's time requirement shall be as follows:
N/A
3.2 The Contract Time shall be measured from the date of commencement.
3.3 The Contractor shall achieve Substantial Completion of the entire
Work not later than 150 calendar days from the date of commencement, or
as follows:
(INSERT NUMBER OF CALENDAR DAYS. ALTERNATIVELY, A CALENDAR DATE MAY BE
USED WHEN COORDINATED WITH THE DATE OF COMMENCEMENT. UNLESS STATED
ELSEWHERE IN THE CONTRACT DOCUMENTS, INSERT ANY REQUIREMENTS FOR EARLIER
SUBSTANTIAL COMPLETION OF CERTAIN PORTIONS OF THE WORK).
, 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 OR FOR BONUS PAYMENTS FOR EARLY COMPLETION OF THE WORK.)
In the event that the Contractor shall fail to achieve Substantial
Completion of the entire Work on or before July 17, 1998, Contractor and
Owner agree that it would be impractical and extremely difficult to
estimate the damages suffered by Owner as a result of Contractor's failure
to achieve Substantial Completion of the entire Work on or before such
date, and that under the circumstances existing as of the date of this
Agreement, the liquidated damages provided for in this Paragraph 3.3
will represent a reasonable estimate of the damages which Owner will
incur as a result of such failure; PROVIDED, HOWEVER, that this
provision will not limit Owner's right to receive reimbursement of
attorneys' fees nor waive any indemnity obligations of Contractor
pursuant to this Agreement or any other agreement between Owner and
Contractor. Therefore, Contractor and Owner do hereby agree that a
reasonable estimate of the total net detriment that Owner would suffer
in the event that Contractor fails to achieve Substantial Completion of
the entire Work on or before July 17, 1998 will be Five Thousand Dollars
($5,000) per day for each day subsequent to July 17, 1998 that Contractor
fails to achieve Substantial Completion of the entire Work. Said amount
will be the full, agreed and liquidated damages for such failure.
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ARTICLE 4 CONTRACT SUM
4.1 The Owner shall pay the Contractor the Contract Sum in current
funds for the Contractor's performance of the Contract. The Contract Sum
shall be Seven million two hundred seventy nine thousand nine hundred
sixty seven Dollars ($7,279,967.00) 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 NUMBERS 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 WHEN
THAT AMOUNT EXPIRES.)
Alternates 4, 5, 10, 11, 12, 13, & 14.
4.3 Unit prices, if any, are as follows:
Unit cost to deepen footings a) Excavation = $ 15.00 cy
b) Concrete = $150.00 cy
Painting unit prices a) Concrete 415138 of x .32 = $132,844.00
b) CMU, EIFS,
Stairs 87524 of x .42 = $ 36,760.00
-----------
$169,604.00 =
* Included in base bid
ARTICLE 5 PAYMENTS
5.1 PROGRESS PAYMENTS
5.1.1 Based upon Applications for Payment submitted to the Architect by
the Contractor and Certificates for Payment issued by the Architect, the
Owner shall make progress payments on account of the Contract Sum to the
Contractor as provided below and elsewhere in the Contract Documents.
5.1.2 The period covered by each Application for Payment shall be one
calendar month ending on the last day of the month, or as follows:
5.1.3 Provided that an Application for Payment is received by the
Architect not later than the 25th day of a month, the Owner shall make
payment to the Contractor not later than the 30th day of the following
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 30 days after the Architect receives the Application for
Payment.
5.1.4 Each Application for Payment shall be based on the most recent
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. 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 Contractor's Applications for Payment.
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5.1.5 Applications for Payment shall indicate the percentage of
completion of each portion of the Work as of the end of the period
covered by the Application for Payment.
5.1.6 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 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
Contract Sum allocated to that portion of the Work in the
schedule of values, less retainage of TEN percent (10%).
Pending final determination of cost to the Owner of changes
in the Work, amounts not in dispute shall be included as
provided in Subparagraph 7.3.8 of AIA Document A201-1997;
.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%);
.3 Subtract the aggregate of previous payments made by the Owner;
and
.4 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 A201-1997.
5.1.7 The progress payment amount determined in accordance with
Subparagraph 5.1.6 shall be further modified under the following
circumstances:
.1 Add, upon Substantial Completion of the Work, a sum sufficient
to increase the total payments to the full amount of the
Contract Sum, less such amounts as the Architect shall
determine for incomplete Work, retainage applicable to such
work and unsettled claims; and (SUBPARAGRAPH 9.8.5 OF AIA
DOCUMENT A201-1997 REQUIRES RELEASE OF APPLICABLE RETAINAGE
UPON SUBSTANTIAL COMPLETION OF WORK WITH CONSENT OF SURETY, IF
ANY.)
.2 Add, if final completion of the Work is thereafter materially
delayed through no fault of the Contractor, any additional
amounts payable in accordance with Subparagraph 9.10.3 of AIA
Document A201-1997.
5.1.8 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 RETAINAGE RESULTING FROM THE PERCENTAGES INSERTED
IN CLAUSES 5.1.6.1 AND 5.1.6.2 ABOVE, AND THIS IS NOT EXPLAINED
ELSEWHERE IN THE CONTRACT DOCUMENTS, INSERT HERE PROVISIONS FOR SUCH
REDUCTION OR LIMITATION.)
Retention to be reduced to 5% when the project reaches 50% completion.
5.1.9 Except with the Owner's prior approval, the Contractor shall not
make advance payments to suppliers for materials or equipment which have
not been delivered and stored at the site.
5.2 FINAL PAYMENT
5.2.1 Final payment, constituting the entire unpaid balance of the
Contract Sum, shall be made by the Owner to the Contractor when:
.1 the Contractor has fully performed the Contract except for the
Contractor's responsibility to correct Work as provided in
Subparagraph 12.2.2 of AIA Document A201-1997, and to satisfy
other requirements, if any, which extend beyond final payment;
and
.2 a final Certificate for Payment has been issued by the Architect.
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5.2.2 The Owner's final payment to the Contractor shall be made no
later than 30 days after the issuance of the Architect's final Certificate
for Payment, or as follows:
ARTICLE 6 TERMINATION OR SUSPENSION
6.1 The Contract may be terminated by the Owner or the Contractor as
provided in Article 14 of AIA Document A201-1997.
6.2 The Work may be suspended by the Owner as provided in Article 14 of
AIA Document A201-1997.
ARTICLE 7 MISCELLANEOUS PROVISIONS
7.1 Where reference is made in this Agreement to a provision of AIA
Document A201-1997 or another Contract Document, 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 time to time at the place
where the Project is located. (INSERT RATE OF INTEREST AGREED UPON, IF
ANY.)
(USURY LAWS AND REQUIREMENTS UNDER THE FEDERAL TRUTH IN LENDING ACT,
SIMILAR STATE AND LOCAL CONSUMER CREDIT LAWS AND OTHER REGULATIONS AS
THE OWNER'S AND CONTRACTOR'S PRINCIPAL PLACES OF BUSINESS, THE LOCATION
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.)
7.3 The Owner's representative is: Xxxx Xxxxx, V.P. Construction
(NAME, ADDRESS AND OTHER INFORMATION) Hard Rock Hotel, Inc.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
7.4 The Contractor's representative is: Xxxxxxx Xxxxx
(NAME, ADDRESS AND OTHER INFORMATION) X.X. Xxxx Construction, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
7.5 Neither the Owner's nor the Contractor's representative shall be
changed without ten days' written notice to the other party.
7.6 Other provisions:
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ARTICLE 8 ENUMERATION OF CONTRACT DOCUMENTS
8.1 The Contract Documents, except for Modifications issued after
execution of this Agreement, as enumerated as follows:
8.1.1 The Agreement is this executed 1997 edition of the Standard Form of
Agreement Between Owner and Contractor, AIA Document A101-1997.
8.1.2 The General Conditions are the 1997 edition of the General
Conditions of the Contract for Construction, AIA Document A201-1997.
8.1.3 The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated , and are as
follows:
Document Title Pages
8.1.4 The Specifications are those contained in the Project Manual dated
as in Subparagraph 8.1.3, and are as follows:
(EITHER LIST THE SPECIFICATIONS HERE OR REFER TO AN EXHIBIT ATTACHED TO
THIS AGREEMENT.)
Section Title Pages
8.1.5 The Drawings are as follows, and are dated unless a
different date is shown below:
(EITHER LIST THE DRAWINGS HERE OR REFER TO AN EXHIBIT ATTACHED TO THIS
AGREEMENT.)
Number Title Date
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8.1.6 The Addenda, if any, are as follows:
Number Date Pages
1 January 13, 1998 1 (Drawing revision list)
2 January 20, 1998 5 (RFI 4 pages, 1 revised bid form)
3 February 2, 1998 A.0.00.1, A1.01.1, A1.021, A1.03.1,
A1.04.1, A1.05.1, A1.06.1, A3.00.2,
A5.001 and A7.000
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in
this Article 8.
8.1.7 Other documents, if any, forming part of the Contract Documents are
as follows:
(LIST HERE ANY ADDITIONAL DOCUMENTS THAT ARE INTENDED TO FORM PART OF THE
CONTRACT DOCUMENTS. AIA DOCUMENT A201-1997 PROVIDES 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.)
INSTRUCTION TO BIDDERS DATED JANUARY 05, 1998
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.
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxx
----------------------------- -------------------------------
OWNER (SIGNATURE) CONTRACTOR (SIGNATURE)
/s/ Xxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxx/President
----------------------------- -------------------------------
(PRINTED NAME AND TITLE) (PRINTED NAME AND TITLE
CAUTION: YOU SHOULD SIGN AN ORIGINAL AIA DOCUMENT OR A LICENSED
REPRODUCTION. ORIGINALS CONTAINS THE AIA LOGO PRINTED IN RED; LICENSED
REPRODUCTIONS ARE THOSE PRODUCED IN ACCORDANCE WITH THE INSTRUCTIONS TO
THIS DOCUMENT.
/s/ Xxxx Xxxxx
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