Exhibit 10.13
SECTION 00500
EJCDC STANDARD FORM OF
AGREEMENT BETWEEN OWNER AND CONTRACTOR ON THE BASIS OF A STIPULATED
PRICE EJCDC NO. 1910-8-A-1 (1996 EDITION)
THIS AGREEMENT
is dated as of the 15 th
day of October in the year 2004 by and between Town of
Randolph (hereinafter called OWNER) and Volkmann Railroad
Builders, Inc. (hereinafter called CONTRACTOR).
OWNER AND CONTRACTOR, in
consideration of the mutual covenants hereinafter set forth, agree
as follows:
Article 1.
WORK.
1.1
CONTRACTOR shall complete all Work
as specified or indicated in the Contract Documents. The Work
is generally described as follows:
Turnouts, track, derails and earthen
berm construction, including ballast and bonding and grounding of
track.
1.2
The Project for which the Work under
the Contract Documents may be the whole or only a part is generally
described as follows:
Rail Yard Construction for UWGP,
LLC
Article 2.
ENGINEER.
2.1
The Project has been designed by
Key Railroad Development, LLC. , 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
completion of the Work in accordance with the Contract
Documents.
Article 3. CONTRACT
TIMES.
3.1
Work will be substantially completed
by May 20, 2005, and completed and ready for final payment by
May 31, 2005.
3.2
Liquidated Damages
. OWNER and CONTRACTOR 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 3.1 above, plus any extensions thereof
allowed in accordance with Article 12 of the General
Conditions. They also recognize the delays, expense and
difficulties involved in proving 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 Five Hundred dollars ($ 500 ) for
each day that expires after the time specified in paragraph 3.1 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
time specified in paragraph 3.1 for completion and readiness for
final payment or any proper
1
extension thereof granted by OWNER,
CONTRACTOR shall pay OWNER Five Hundred dollars ($
500 ) for each day that expires after the time specified in
paragraph 3.1 for completion and readiness for final
payment.
Article 4. CONTRACT
PRICE.
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 amounts determined
pursuant to the following:
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 below:
UNIT PRICE WORK
|
NO.
|
|
ITEM
|
|
UNIT
|
|
ESTIMATED
QUANTITY
|
|
UNIT
PRICE
|
|
TOTAL
ESTIMATED
|
|
|
1.
|
|
Mobilization/Demobilization
|
|
1
|
|
LS
|
|
$
|
12,800.00
|
|
$
|
12,800.00
|
|
|
2.
|
|
#8-112# Turnout
Construction
|
|
1
|
|
EA
|
|
$
|
26,000.00
|
|
$
|
208,000.00
|
|
|
3.
|
|
112# Track Construction
|
|
8,021
|
|
TF
|
|
$
|
67.00
|
|
$
|
537,407.00
|
|
|
4.
|
|
Scale Track Construction
|
|
72
|
|
TF
|
|
$
|
60.00
|
|
$
|
4,320.00
|
|
|
5.
|
|
Concrete Pad Track
Constr.
|
|
349
|
|
TF
|
|
$
|
118.00
|
|
$
|
41,182.00
|
|
|
6.
|
|
Sliding Derail
Construction
|
|
2
|
|
EA
|
|
$
|
2,800.00
|
|
$
|
5,600.00
|
|
|
7.
|
|
Earthen Berm Construction
|
|
2
|
|
EA
|
|
$
|
500.00
|
|
$
|
1,000.00
|
|
|
8.
|
|
Close Clearance Signage
|
|
1
|
|
LS
|
|
$
|
400.00
|
|
$
|
400.00
|
|
|
9.
|
|
Track Bonding and
Grounding
|
|
1
|
|
LS
|
|
$
|
4,830.00
|
|
$
|
4,830.00
|
|
TOTAL OF ALL UNIT PRICES Eight
Hundred Fifteen Thousand Five Hundred Thirty-Nine Dollars (use
words) $815,539.00 (Dollars)
As provided in Paragraph 11.03 of
the General Conditions, estimated quantities are not guaranteed,
and determinations of actual quantities and classification are to
be made by ENGINEER as provided in Paragraph 9.10 of the General
Conditions. Unit prices have been computed as provided in
Paragraph 11.03.B of the General Conditions.
Article 5. PAYMENT
PROCEDURES.
CONTRACTOR shall submit Applications
for Payment in accordance with Article 14 of the General
Conditions. Applications for Payment will be processed by
ENGINEER, as provided in the General Conditions.
5.1
Progress Payments;
Retainage. OWNER shall
make progress payments on account of the Contract Price on the
basis of CONTRACTOR’s Applications for Payment, as
recommended by ENGINEER, on or about the 24 th day of
each month during construction as provided in paragraphs 5.1.1 and
5.1.2 below. All such payments will be measured by the
schedule of values established in paragraph 2.07.3 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.
2
5.1.1
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 shall determine,
or OWNER may withhold, in accordance with Paragraph 14.7 of the
General Conditions.
90% of Work completed (with the
balance being retainage).
5.1.2
Upon Substantial Completion, in an
amount sufficient to increase total payments to CONTRACTOR to
95% of the Contract Price (with the balance being
retainage), less such amounts as ENGINEER shall determine, or OWNER
may withhold, in accordance with Paragraph 14.7 of the General
Conditions.
5.2
Final Payment . Upon
final completion and acceptance of the Work in accordance with
paragraph 14.13 of the General Conditions, OWNER shall pay the
remainder of the Contract Price as recommended by ENGINEER as
provided in said Paragraph 14.13.
Article 6.
INTEREST.
6.1
All moneys not paid when due, as
provided in Article 14 of the General Conditions, shall bear
interest at the maximum rate allowed by law at the place of the
Project.
Article 7.
CONTRACTOR’S REPRESENTATIONS.
In order to induce OWNER to enter
into this Agreement, CONTRACTOR makes the following
representations:
7.1
CONTRACTOR has examined and
carefully studied the Contract Documents (including the Addenda
listed in Paragraph 8) and the other related data identified in the
Bidding Documents including “technical
data.”
7.2
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, performance or
furnishing of the Work.
7.3
CONTRACTOR is familiar with and is
satisfied as to all federal, state, and local laws and regulations
that may affect cost, progress, performance, and furnishing of the
Work.
7.4
CONTRACTOR has carefully studied all
reports of explorations and tests of subsurface conditions at or
contiguous to the site and all drawings of
