Big Boulder Corp. And Popple Construction Agreement

EICDC

STANDARD FORM OF AGREEMENT

BETWEEN OWNER AND CONTRACTOR

ON THE BASIS OF A STIUPLATED PRICE


THIS AGREEMENT is by and between Big Boulder Corporation

(hereinafter called OWNER) and Popple Construction Company , Inc.

(hereinafter called CONTRACTOR). P (570) 823-0531

F (570) 823-3352

OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows:

ARTICLE 1 WORK

1.01 CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows:

See Attachment " A"


ARTICLE 2 THE PROJECT

2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows:

Boulder Lake Village Residential Development

Multi-Family Housing (AKA Midlake Village Condominiums)


ARTICLE 3 ENGINEER

3.01 The Project has been designed by

Malcolm Pirnie, Inc.

P (570) 457-1677

932 Springbrook Avenue

F (570) 451-0670

Moosic, PA 18507

who is hereinafter called ENGINEER and who is to act as OWNER' s representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents.


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ARTICLE 4 CONTRACT TIMES

4.01 Time of the Essence

A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence e of the Contract.


4.01 Dates for Substantial Completion and Final Payment

A. The Work will be substantially completed on or before _______________________, __________, and completed and ready for final payment in accordance with paragraph 14.07 of the General Conditions on or before ___________________, ________.


[or]


4.02 Days to Achieve Substantial Completion and Final Payment

A.

The Work will be substantially completed within 240 days after the date when the Contract Times commence to run as provided in paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with paragraph 14.07 of the General Conditions within 30 days after the date when the Contract Times commence to run.


4.03 Liquidated Damages


A.

CONTRACTOR and OWNER recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not completed within the times specified in paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty), CONTRACTOR shall pay OWNER $400.00 for each day that expires after the time specified in paragraph 4.02 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR shall neglect, refuse, or fail to complete the remaining Work within the Co ntract Time or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER $400.00 for each day that expires after the time specified in paragraph 4.02 for completion and readiness for final payment until the Work is completed and ready for final payment.


NOTE TO USER

1. Where failure to reach a Milestone on time is of such consequence that the assessment of liquidated damages for failure to reach one or more Milestones on time is to be provided, appropriate amending or supplementing language should be inserted here.


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ARTICLE 5 CONTRACT PRICE


5.01 owner SHALL PAY contractor FOR COMPLETION OF THE Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amount determined pursuant to paragraphs 5.01.A, 5.01.B, and 5.01.C below:


A. For all Work other than Unit Price Work, a Lump Sum of:

Two Million Two Hundred Fifty-Five Thousand

Three Hundred Eighty-Seven and 00/100

($2,255,387.00)
(use words)

(figure)


All Specific cash allowances are included in the above price and have been computed in accordance with paragraph 11.02 of the General Conditions. Utility trench allowances: Stage 1, Base Bid ($100,000.00) Stage 2, Alternate 1, ($75,000.00) and Stage 3, Alternate 2 ($75,000.00)


B. For all Unit Price Work, an amount equal to the sum of the established unit price for each separately identified item of Unit Price Work times the estimated quantity of that item as indicated in this paragraph 5.01.B:


UNIT PRICE WORK


No.

Item

Unit

Estimated Quantity

Unit Price

Total Estimated


See Attachment " E"


TOTAL OF ALL UNIT PRICES ______________________________ $ _____________ (dollars)

(use words)


As provided in paragraph 11.03 of the General Conditions, estimated quantities are not guarantee, and determinations of actual quantities and classifications are to be made by ENGINEER as provided in paragraph 9.08 of the General Conditions. Unit prices have been computed as provided in paragraph 11.03 of the General Conditions.


C. For all Work, at the prices stated in CONTRACTOR' s Bid, attached hereto as an exhibit .

See Attachments B, E, & Q


NOTES TO USER


1.

If adjustment prices for variations from stipulated Base Bid quantities have been agreed to, insert appropriate provisions. See BF-4.


2.

Depending upon the particular project bid form used, use A-5.01.A alone, A-5.01.A and A-5.01.B together, A-5.01.B alone, or A-5.01.C alone, deleting those not used and renumbering accordingly. If A-5.01.C is used, CONTRACTOR' s Bid is attached as an exhibit and listed in A-9.


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ARTICLE 6 PAYMENT PROCEDURES


6.01 Submittal and Processing of Payments


A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER /[Construction Manager] as provided in the General Conditions.


6.02 Progress Payments; Retainage


A. OWNER shall make progress payments on account of the Contract Price on the basis of CONTRACTOR' s Applications for Payment on or about the 1st day of each month during performance of the Work as provided in paragraphs 6.02.A.1 and 6.02.A.2 below. All such payments will be measured by the schedule of values established in paragraph 2.07.A of the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements:


1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as ENGINEER /[Construction Manager] (LD 1-4-06, MP, EDD 1-27-06) may determine or OWNER may withhold, in accordance with paragraph 14.02 of the General Conditions:


a. 90% of Work completed (with the balance being retainage). If the Work has been 50% completed as determined by ENGINEER, and if the character and progress of the Work have been satisfactory to OWNER and ENGINEER, OWNER, on recommendation of ENGINEER, may determine that as long as the character and progress of the Work remain satisfactory to them, there will be no retainage on account of Work subsequently completed, in which case the remaining progress payments prior to Substantial Completion will be in an amount equal to 100% of the Work completed less the aggregate of payments previously made; and


b. 10% of cost of materials and equipment not incorporated in the Work (with the balance being retainage).


2. Upon Substantial Completion, OWNER shall pay an amount sufficient to increase total payments to CONTRACTOR to 100% of the Work completed, less such amounts as ENGINEER shall determine in accordance with paragraph 14.02.B.5 of the General Conditions and less 100% of ENGINEER' s estimate of the value of Work to be completed or corrected as shown on the tentative list of items to be completed or corrected attached to the certificate of Substantial Completion.


6.03 Final Payment


A. Upon final completion and acceptance of the Work in accordance with paragraph 14.07 of the General Conditions, OWNER shall pay the remainder of the Contract Price as recommended by ENGINEER as provided in said paragraph 14.07.


ARTICLE 7 INTEREST


7.01 All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at the rate of 2% per annum. Prime Plus


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ARTICLE 8 CONTRACTOR' S REPRESENTATIONS


8.01 In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following representations:


A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents.


B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work.


C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that my affect cost, progress, and performance of the Work.


D. CONTRACTOR has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Side (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in paragraph 4.02 of the General Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which has been identified in the Supplementary Conditions as provided in paragraph 4.06 of the General Conditions.


NOTE TO USER


1. If the reports and/or drawings referred to in A-8.01.D do not exist, either modify A-8.01.D or delete A-8.01.D and renumber accordingly.


E. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so) all examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by CONTRACTOR, including applying the specific means, methods, techniques, sequences, and procedures of construction, if any, expressly required by the Contract Documents to be employed by CONTRACTOR, and safety precautions and programs incident thereto


NOTE TO USER


1. If the reports and/or drawings referred to in A-8.01.D do not exist, delete the phrase " additional or supplementary" in the first sentence of A-8.01.E..


F. CONTRACTOR does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents.


G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract Documents.


H. CONTRACTOR has correlated the information known to CONTRACTOR, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents.


I. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities, or discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR.


J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work.

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ARTICLE 9 CONTRACT DOCUMENTS


9.01 Contents


A. The Contract Documents consist of the following:


1.

This Agreement (pages A-1 to A-3, inclusive); See Attachment " F"


2.

Performance Bond (pages PB-1 to PB-2 inclusive); See Attachment " G"


3.

Payment Bond (pages - to - , inclusive);


4.

Other Bonds (pages _____ to _____, inclusive);


a. Labor & Materialmen' s (pages LMB-1 to LMB-3, inclusive); See Attachment " H"


b. Maintenance Bond (pages MB-1 to MB-2, inclusive); See Attachment " I"


c. _________________ (pages _____ to _____, inclusive);


5.

General Conditions (pages GC-1 to GC-17, inclusive); See Attachment " J"


5A.

General Conditions II (Pages GC2-1 to GC2-6, inclusive); See Attachment " K"


6.

Supplementary Conditions (pages _____ to _____, inclusive);


7.

Specifications as listed in the table of contents of the Project Manual;


8.

Drawings consisting of a cover sheet and sheets numbered 1 through 18, inclusive, which each sheet bearing the following general title: Residential Development Final Drawings. See Attachment " L"


9.

Addenda (numbers 1 to 2, inclusive); See Attachment " M"


10. Exhibits to the Agreement (enumerated as follows):


a. Notice to Proceed (pages _____ to _____, inclusive);


b. CONTRACTOR' s Bid (pages _____ to _____, inclusive);


c. Documentation submitted by CONTRACTOR prior to Notice of Award (pages _____ to _____, inclusive);


d. ______________________________________________;


11. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto:


a.

Written Amendments;

b.

Work Change Directives;

c.

Change Order(s).


B. The documents listed in paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above).


C. There are no Contract Documents other than those listed above in this Article 9.

00500-6


D. The Contract Documents may only be amended, modified, or supplemented as provided in paragraph 3.05 of the General Conditions.


ARTICLE 10 MISCELLANEOUS


10.01 Terms


A. Terms used in this Agreement will have the meanings indicated in the General Conditions.


10.02 Assignment of Contract


A. No assignment by a party hereto of any rights under or interest in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents.


10.03 Successors and Assigns


A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents.


10.04 Severability


A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.


10.05 Other Provisions


NOTE TO USER

1. Insert other provisions here if applicable.


1. Additional Agreements and Special Conditions to the Contract
(See Attachment " C" )


2. Indemnification Agreement (See Attachment " D" )


3. Unit Change Order Costs (See Attachment " E" )


00500-7


IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and CONTRACTOR. All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or on their behalf.


NOTE TO USER

1. See I-21 and correlate procedures for format and signing between the two documents.


This Agreement will be effective on January 27, 2006 (which is the Effective Date of the Agreement).


OWNER:

CONTRACTOR:


BIG BOULDER CORPORATION

POPLE CONSTRUCTION COMPANY , INC.


By: /s/ Eldon D. Dietterick

By: /s/ Mark Popple


[CORPORATE SEAL]

[CORPORATE SEAL]


Attest: /s/ Mary M. Sweeney

Attest: /s/ David Popple


Address for giving notices:

Address for giving notices:


Rt. 940 Moseywood Road

202 Main St.


Blakeslee, PA 18610-0707

Laflin, PA 18702-2799


P (570) 443-8433 x 1050

P (570) 823-0531

F (570) 443-4708

F (570) 823-3352


00500-8


ATTACHMENT " A"


Date:

December 5, 2005


Project:

Boulder Lake Village Residential Development Multi-Family Housing

(aka Midlake Village Condominiums)


Re:

Article 1 - Work


The description of work described below is not to be inclusive of all contract " Work," but to describe the general intent of same as follows:


1. Contract:

A.

Performance, Labor & Material, and Maintenance Bonds.

B.

Construction & Utility Permit Costs.

C.

Project Closeout and As-Built Drawings.

D.

Connection(s) and fees into existing utility systems.


2. Earthwork:

A.

Erosion & Sedimentation control procedures and sequence.

B.

Site Development clearing & grubbing, cut & fill, and replacement of topsoil, all as unclassified earthwork.

C.

Importing and exporting of earth materials as specified.

D.

Trench excavation, backfill and restoration.


3. Site Development:

A.

Construction of new structures, such as paved roads, walks, curbs, sidewalks,

stairs, ramps, paved areas, signs, and pavement markings.

B.

New Utility Systems;

i.

Domestic and fire water distribution.

ii.

Sanitary Sewer Systems.

iii.

Storm Water Systems.


4. Sordoni Construction Services, Inc. Trade Scope Review , dated November 11, 2005 and

Popple Construction, Inc. Trade Scope Review correspondence, dated November 21,

2005. SEE ATTACHMENT " B."


5. Additional Agreements and Special Conditions to the Contract. SEE ATTACHMENT " C."


6. Malcolm Pirnie Addenda No.1, dated September 21, 2005 and Sordoni Construction Services,

Addenda No.2, dated October 10, 2005. SEE ATTACHMENT " M."


ATTACHMENT " C"


Date:

December 5, 2005


Project:

Boulder Lake Village Residential Development Multi-Family Housing

(aka Midlake Village Condominiums)


Re:

Additional Agreements and Special Conditions to the Contract


ADDITIONAL AGREEMNTS TO THE CONTRACT:


The following additional agreements to the contract shall supercede all other forms of contract documents and shall become contract enforceable to the greatest extent.


1.

A registered surveyor who shall be employed by the Contractor, at no additional contract cost, shall prepare submission of As-Built drawings. All progress As-Built information shall be available to the Project Engineer or Inspecting third party, periodically to verify their accuracy of information. The Contractor shall provide certified As-Built drawings per the Homeowners Associations requirements.

2.

The Contractor shall coordinate all utility installations for the project. This shall include but not be limited to permits, installations,

3.

If the project completion is delayed as a result of governmental agency approval or inclement weather conditions, then, the Owner and Contractor agree to adjust the cost of fuel cost as follows:

The Contractor shall submit the actual Pennsylvania index fuel cost upon signing of this agreement (SEE ATTACHMENT P) . Any adjustments in fuel costs shall be added or deducted to the contract based on the State of Pennsylvania' s Index.

No contract adjustments for liquid fuels will be granted until 21 days after the completion

of Base Bid, Alternate #1, or Alternate #2. There will not be project cost adjustments for

labor.

4.

The Contractor shall not be required to provide a security guard on the project. It is understood that it will be the contractor' s responsibility to secure all material, equipment, and work in progress at Boulder Lake Village property until substantial completion. In summary, it will be the Contractor' s risk to secure his property and protect his work installed until Owner acceptance.

5.

Contractor shall photograph or video the site premises to document the existing conditions.

6.

Contractor shall indemnify Big Boulder, Inc. for all costs associated with or resulting from NPDES and E & S project procedures, including attorney fees.
SEE ATTACHMENT D.

7.

Contractor shall provide the unit prices for all costs associated with change orders.
SEE ATTACHMENT E.

8.

Change Orders shall not be approved based on a cost plus fifteen percent (15%) basis. Prior to proceeding with additional work a written approval must be obtained from either the construction manager or Owner. The change order cost shall be pre-approved based on a fixed cost for material, labor, and equipment. All change orders must be submitted with itemized cost breakdowns for material, equipment, and labor. prior to proceeding with additional scope of work. The total pre-approved change order amount shall be determined by anticipated cost amount plus a fixed 15% markup for Overhead & Profit.


ATTACHMENT " C"


Date:

December 5, 2005


Project:

Boulder Lake Village Residential Development Multi-Family Housing

(aka Midlake Village Condominiums)


Re:

Additional Agreements and Special Conditions to the Contract


ADDITIONAL AGREEMNTS TO THE CONTRACT CONTINUED:


9.

The term substantial completion shall be redefined as follows:

Substantial completion shall be understood as the Kidder Township review, approval, and written acceptance of all site improvement work. No partial substantial completion will be granted to reduce project retention.

10.

Legal notice may be given in any of the following ways:

Mail

E-Mail

Facsimile

11.

Contractor shall be solely responsible for any repairs, replacements or modifications to

the Project after substantial completion for a period of two (2) years or until the

release of Owner by Kidder Township, Carbon County, Pennsylvania, and the release

of Owner from all permits including E & S permit and NPDES permits whichever

(two years or releases) is later.

Contractor shall indemnify, defend and hold harmless Owner from any costs, expenses

and fees including consultant, engineering or legal fees incurred by Owner as a result

of Contractor's failure to remedy any issues pertaining to repairs, replacement, or

modifications required after substantial completion.

Contractor shall be required to do at its sole cost and expense after substantial completion

of the Contract all work required by any local state or federal government or agency

required to remedy, repair, replace or modify any work of Contractor under the

Contract or to comply with any permits issued for the Contact work.

Contractor shall perform all work for repairs, replacements or modifications within thirty

(30) days of notice from Owner of the need for repairs, replacements or modifications.

Contractor shall, at its cost, be solely responsible for obtaining the release of Owner from

all permits including but not limited to E & S permits, NPDES and Pa Conservation

District.

12.

Soil Evaluation conducted by Environmental Consultants, Mr. Brian Oram, PG,

(pages 1-6), SEE ATTACHMENT " O."

13.

Addendum #1 and #2 shall become part of the contract. SEE ATTACHMENT " M."

14.

The Owner shall make available an off-site location for the Contractor to borrow earth

material. All costs associated with using this borrowed earth material and making it

suitable for this project shall become the Contractors responsibility & expense,

especially governmental approvals, excavating, screening, blending, trucking, and

processing.


ATTACHMENT "D"

Date:

January 27 2006

Project:

Boulder Lake Village Residential Development Multi-Family Housing (a/k/a MidLake Village Condominiums II)

RE:

Indemnification Agreement


This Indemnification Agreement is made this 27th day of January, 2006, by and between BIG BOULDER CORPORATION , hereinafter called "Owner" and POPPLE CONSTRUCTION, INC. , its successors or assigns, hereinafter called "Contractor". WHEREAS, Owner requires Contractor to indemnify Owner as a condition of the award of the Contract for the construction of Boulder Lake Village Residential Development (hereinafter "Contract").

NOW, THEREFORE, in consideration of the covenants and contained hereinafter and the award of the Contract for Boulder Lake Village Condominiums and intending to be legally bound hereby the parties agree as follows:

1.

All of the aforesaid WHEREAS clauses are incorporated herein as though fully set forth at length.

2.

Contractor shall exonerate, indemnify, defend and hold harmless Owner its officers, engineers, solicitors, appointees, and employees or other agents, independent contractors or assigns, from any and all claims, costs, expenses, awards, verdicts or judgments, together with counsel and witness fees, including exports, based upon or arising out of the work contracted for between Owner and Contractor during the Contract work period and during the maintenance period, including damages or injuries including death, to persons or properties caused by or sustained in connection with the performance of the contract or any maintenance repairs, replacements or modifications thereof by Contractor.

3.

The above indemnify shall include any claims for violations of any permits issues in conjunctio ...