Exhibit 10.9


 


	
  

  	
  Document
  A111TM – 1997

  



 


Standard Form of Agreement
Between Owner and Contractor

where the basis for payment is the COST OF THE WORK
PLUS A FEE with a negotiated Guaranteed Maximum Price


 


AGREEMENT made as of the 6th day of June in the year
Two Thousand Five


(In words, indicate day,
month and year)


 


BETWEEN the Owner:


(Name, address and other
information)


 


Diamond Jo Worth, LLC

400 East 3rd Street

Dubuque, IA 52001


 


and the Contractor:


(Name, address and other
information)


 


Henkel Construction Company

208 East State Street, P.O. Box 920

Mason City, IA 50401


 


The Project is:


(Name and location)


 


Excursion Gambling Boat

Worth County, IA


 


The Architect is:


(Name, address and other
information)


 


KGA Architecture


4495 South Polaris Avenue

Las Vegas, NV 89103


 


The Owner and Contractor agree as follows.


 


ADDITIONS AND DELETIONS:


 


The author of this document has added
information needed for its completion. The author may also have revised the
text of the original AIA standard form. An  Additions
and Deletions Report that notes added information as well as revisions to
the standard form text is available from the author and should be reviewed. A
vertical line in the left margin of this document indicates where the author
has added necessary information and where the author has added to or deleted
from the original AIA text.


 


This document has important legal
consequences.  Consultation with an
attorney is encouraged with respect to its completion or modification. 


 


This document is not intended for use in
competitive bidding.


 


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
unless this document is modified.


 


This document has been approved and endorsed
by the Associated General Contractors of America. 


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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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 15. If anything in the other
Contract Documents is inconsistent with this Agreement, this Agreement shall
govern.


 


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  RELATIONSHIP OF THE PARTIES


 


The Contractor accepts the relationship of
trust and confidence established by this Agreement and covenants with the Owner
to cooperate with the Architect and exercise the Contractor’s skill and
judgment in furthering the interests of the Owner; to furnish efficient
business administration and supervision; to furnish at all times an adequate
supply of workers and materials; and to perform the Work in an expeditious and
economical manner consistent with the Owner’s interests. The Owner agrees to
furnish and approve, in a timely manner, information required by the Contractor
and to make payments to the Contractor in accordance with the requirements of
the Contract Documents.


 


ARTICLE 4 
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


 


§ 4.1  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.


 


Date of commencement shall be established as
June 6, 2005 or the date upon which Contractor has received owner’s written
Notice to Proceed, proof of financing acceptable to Contractor for the Initial
Contract Sum, and a fully executed Contract. 
Contractor shall acknowledge in writing when these conditions have been
met.  This acknowledgment shall be given
by a separate letter.


 


If, prior to 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:


 


§ 4.2  The Contract Time
shall be measured from the date of commencement.


 


§ 4.3  The Contractor
shall achieve Substantial Completion of the Contractor’s Work not later than
235 calendar days from the date of commencement, per Article 4.1:


 


“Substantial Completion” (or similar words
such as “Substantially Complete”, and any derivation thereof) means that the
following has occurred:


 


The construction of the Project (other than exterior items if same cannot be completed due to adverse weather
conditions) has been completed in accordance with this Contract and
the Contract Documents and in substantial compliance with all legal
requirements pertaining to Contractor’s Work so as to allow the Project to be
utilized for its intended purpose, in each case, as reasonably determined by
the Architect after consultation with the Contractor and the Owner (but without
giving effect to any work to be completed by the Owner or any other person
and/or any work for which the Contractor has no legal obligation to control, contractual relationship with, or responsibility to complete under the
Contract).


 


§ 4.3.1  The Contractor
shall achieve Substantial Completion on or before the date which is 235
calendar days after all items in Article 4.1 Paragraph 2 above have been
satisfied.  The Contractor acknowledges
and agrees that time is of the essence as to such date of Substantial
Completion and the Contractor and the Owner each agree that the damages to be
suffered by the Owner for the Contractor’s failure to achieve Substantial
Completion by said date is are not susceptible to calculation.  Accordingly, the Contractor and the Owner
agree that the Guaranteed


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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Maximum Price (GMP) shall be reduced by an
amount equal to $10,000 for each day that Substantial Completion extends beyond
said date and the Owner acknowledges that such liquidated damages shall be the
only damages to be recovered by the Owner with respect to failure to achieve
Substantial Completion by said date. 
Adjustments to Guaranteed Maximum Price (GMP) as set forth in this
Section shall be by Change Order which shall be prepared by the Architect for
signature by the Owner, the Contractor and the Architect within ten (10) days
after Substantial Completion.


 


	
  Portion
  of Work

  	
   

  	
  Substantial Completion date

  
	
  59,400 Square Foot Casino

  	
   

  	
  Two-Hundred-Thirty-Five (235) Calendar Days
  from the Date of Commencement per Articles 4.1 and 4.3 above.

  



 


, subject to adjustments of this Contract
Time as provided in the Contract Documents.


 


ARTICLE 5  BASIS
FOR PAYMENT


 


§ 5.1  CONTRACT SUM


 


§ 5.1.1  The Owner shall pay
the Contractor the Contract Sum in current funds for the Contractor’s
performance of the Contract. The Contract Sum is the Cost of the Work as
defined in Article 7 plus the Contractor’s Fee.


 


§ 5.1.2  The Contractor’s
Fee is as follows:


 


(State a lump sum,
percentage of Cost of the Work or other provision for determining the
Contractor’s Fee, and describe the method of adjustment of the Contractor’s Fee
for changes in the Work.)


 


Total fee compensation to be paid to
Contractor shall be a flat fee of Seven-Hundred-Thousand and No/100 Dollars
($700,000.00) plus 3.5% of the Cost of the Work involved in any additive Change
Orders (other than the Change Orders for the hotel construction and the
GMP).  Owner may add the construction of
a 100 room hotel by Change Order for the separate flat fee of
Two-Hundred-Fifty-Thousand and No/100 Dollars ($250,000.00) if hotel
construction is added by Change Order prior to January 1, 2006.  Fees shall not be reduced for change orders
resulting in a lower cost of the Work.


 


§ 5.2  GUARANTEED MAXIMUM PRICE


 


§ 5.2.1  The sum of the Cost
of the Work and the Contractor’s Fee shall be a maximum sum guaranteed by the
Contractor, subject to additions and deductions by Change Order as provided in
the Contract Documents. Such maximum sum is referred to in the Contract
Documents as the Guaranteed Maximum Price. Costs which would cause the
Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without
reimbursement by the Owner.


 


Initial Contract Sum (including partial
Contractor’s Fee) shall be Nine-Hundred-Twenty-Five-Thousand and No/100 Dollars
($925,000.00) and shall include project mobilization, site fencing, caisson
drilling and installation, and site mass earthwork.


 


Guaranteed Maximum Price (GMP) shall be added
to this Contract by Change Order.  The
Guaranteed Maximum Price shall be an amount mutually agreed to by Owner and
Contractor which includes the Cost of the Work as defined in Article 7 plus the
Contractor’s Fee.


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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3





















 


§ 5.2.1.1  From and after the
date on which the Guaranteed Maximum Price (GMP) has been established and all
of the Work has been contracted with Subcontractors and providers of equipment
and materials in accordance with the Contract Documents, any subsequent
reductions in the scope of the Work which reduce the Cost of the Work in the
Guaranteed Maximum Price (GMP) will be incorporated into the Contract by a
Change Order which reduces the GMP by an amount equal to the cost reduction
generated by that change in scope.  Prior
to Substantial Completion,  reductions in
cost and/or savings achieved by the Contractor in any manner other than a
reduction in scope shall not result in a reduction of the Guaranteed Maximum
Price.


 


Within (30) days after the date on which
Substantial Completion occurs (or such other date approved by the Contractor
and the Owner), the Cost of the Work shall be determined by the Owner and the
Contractor.  In the event that the sum of
the Cost of the Work and the Contractor’s Fee are less than the GMP, 100% of
all savings (other than cash discounts which are for the benefit of the
Contractor pursuant to Article 9) will be retained by the Owner.  Such savings shall reduce the Cost of the
Work and the parties will enter into a Change Order which reduces the GMP by an
amount equal to such savings.


 


§ 5.2.2  The Guaranteed
Maximum Price is based on 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
the amount expires.)


 


To
be determined.


 


§ 5.2.3  Unit prices, if any, are as follows:


 


	
  Description

  	
   

  	
  Units

  	
   

  	
  Price ($ 0.00)

  	
   

  
	
  To be determined

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


§ 5.2.4  Allowances, if any, are as follows


(Identify and state the
amounts of any allowances, and state whether they include labor, materials, or
both.)


 


	
  Allowance

  	
   

  	
  Amount ($ 0.00)

  	
   

  	
  Included items

  	
   

  
	
  To be determined

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


§ 5.2.5  Assumptions, if any, on which the Guaranteed
Maximum Price is based are as follows:


 


To be determined


 


§ 5.2.6  To the extent that
the Drawings and Specifications are anticipated to require further development
by the Architect, the Contractor has provided in the Guaranteed Maximum Price
for such further development consistent with the Contract Documents as set
forth in a change order.  Such further
development does not include such things as changes in scope, systems, kinds and
quality of materials, finishes or equipment, all of which, if required, shall
be incorporated by Change Order.


 


ARTICLE 6 
CHANGES IN THE WORK


 


§ 6.1  Adjustments to the
Guaranteed Maximum Price on account of changes in the Work may be determined by
any of the methods listed in Section 7.3.3 of AIA Document A201-1997.


 


§ 6.2  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
Section 7.3.3.3 of AIA Document A201-1997 and the terms “costs” and “a
reasonable allowance for overhead and profit” as used in Section 7.3.6 of AIA
Document A201-1997 shall have the meanings assigned to them in AIA Document
A201-1997 and shall not be modified by Articles 5, 7 and 8 of this Agreement.
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.


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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§ 6.3  In calculating
adjustments to the Guaranteed Maximum Price, the terms “cost” and “costs” as
used in the above-referenced provisions of AIA Document A201-1997 shall mean
the Cost of the Work as defined in Article 7 of this Agreement and the terms “fee”
and “a reasonable allowance for overhead and profit” shall mean the Contractor’s
Fee as defined in Section 5.1.2 of this Agreement.


 


§ 6.4  


 


ARTICLE 7  COSTS
TO BE REIMBURSED AND INCLUDED IN THE GUARANTEED MAXIMUM PRICE (GMP)


 


§ 7.1  COST OF THE WORK


 


The term Cost of the Work shall mean costs
necessarily incurred by the Contractor in the proper performance of the Work.
Such costs shall be at rates not higher than the standard 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 7.


 


§ 7.2 LABOR COSTS


 


§ 7.2.1


 


Labor Costs of the Contractor’s supervisory
and administrative personnel and workmen and women when at the site or engaged
in the performance of Contractor’s Work for this project (including Work performed
pursuant to Change Orders).


 


See Attachment “A” – Worth County Excursion
Gambling Boat Labor Rate Schedule for labor rates which will apply to the
Contract.  These labor rates include all
benefits, workers compensation costs, and other amounts paid or payable to, or
with respect to, such personnel and workmen and women and shall remain in
effect throughout construction of the Project (including Work performed
pursuant to Change Orders) other than the Change Order for the hotel
construction which shall set forth a separate Guaranteed Maximum Price for the
hotel construction) and shall apply to all Henkel Construction Company project
management and field labor performed on the Project.


 


§ 7.2.3  Wages and salaries
of the Contractor’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.


 


§ 7.2.4  Costs paid or
incurred by the Contractor 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 such costs are
based on wages and salaries included in the Cost of the Work under Sections
7.2.1 through 7.2.3.


 


§ 7.3  SUBCONTRACT COSTS


 


§ 7.3.1


 


Amounts properly billed by Subcontractors for
Work in accordance with subcontracts covering their portions of the Work which
subcontracts shall be approved by the Owner and the Contractor in accordance
with the Contract Documents.  If Owner’s
rejection of Subcontractor, Sub-subcontractor, supplier, or vendor results in a
purchase cost or schedule duration which exceeds what Contractor has proposed,
then a Change Order shall be executed by Owner adding such extra costs and/or
time.


 


§ 7.4  COSTS OF MATERIALS AND
EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION


 


§ 7.4.1  Costs, including transportation
and storage, of materials and equipment incorporated or to be incorporated in
the completed construction.


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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§ 7.4.2  Costs of materials
described in the preceding Section 7.4.1 in excess of those actually installed
to allow for reasonable waste and spoilage. Unused excess materials, if any,
shall become the Owner’s property at the completion of the Work or, at the
Owner’s option, shall be sold by the Contractor. Any amounts realized from such
sales shall be credited to the Owner as a deduction from the Cost of the Work.


 


§ 7.5  COSTS OF OTHER MATERIALS
AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS


 


§ 7.5.1  Costs, including
transportation and storage, installation, maintenance, dismantling and removal
of materials, supplies, temporary facilities, machinery, equipment, and hand
tools not customarily owned by construction workers, that are provided by the
Contractor at the site and fully consumed in the performance of the Work; and
cost (less salvage value) of such items if not fully consumed, whether sold to
others or retained by the Contractor. Cost for items previously used by the
Contractor shall mean fair market value.


 


§ 7.5.2  Rental charges for
temporary facilities, machinery, fuel, oil, grease, equipment, and hand tools
not customarily owned by construction workers that are provided by the
Contractor at the site, whether rented from the Contractor 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.  Internal
rental rates for Henkel Construction Company furnished rental equipment shall
be hourly and shall be based on 100% of current AED Green Book rates.


 


§ 7.5.3  Costs of removal of
debris from the site.


 


§ 7.5.4  Costs of document
reproductions, facsimile transmissions and long-distance telephone calls,
postage and parcel delivery charges, cellular telephone charges and pager
services, photographs, telephone and internet service at the site and
reasonable petty cash expenses of the site office.


 


§ 7.5.5  That portion of the
reasonable expenses of the Contractor’s personnel incurred while traveling in
discharge of duties connected with the Work.


 


§ 7.5.6  Costs of materials
and equipment suitably stored off the site at a mutually acceptable location,
if approved in advance by the Owner.


 


§ 7.6 MISCELLANEOUS COSTS


 


§ 7.6.1  That portion of
insurance and bond premiums that can be directly attributed to this Contract:


 


§ 7.6.2


 


All applicable taxes and fees associated with
Contractor’s Work.


 


§ 7.6.3  Fees and
assessments for the building permit and for other permits, licenses and
inspections for which the Contractor is required by the Contract Documents to
pay.


 


§ 7.6.4 Fees of laboratories for tests required by the
Contract Documents, except those related to defective or nonconforming Work for
which reimbursement is excluded by Section 13.5.3 of AIA Document A201-1997 or
other provisions of the Contract Documents, and which do not fall within the
scope of Section 7.7.3.


 


§ 7.6.5 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 rights arising
from such requirement of the Contract Documents; and payments made in accordance
with legal judgments against the Contractor resulting from such suits or claims
and payments of settlements made with the Owner’s consent. However, such costs
of legal defenses, judgments and settlements shall not be included in the
calculation of the Contractor’s Fee or subject to the


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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Guaranteed Maximum Price. If such royalties,
fees and costs are excluded by the last sentence of Section 3.17.1 of AIA
Document A201-1997 or other provisions of the Contract Documents, then they
shall not be included in the Cost of the Work.


 


§ 7.6.6 Data processing costs related to the Work including
all hardware and software costs.


 


§ 7.6.7 Deposits lost for causes other than the Contractor’s
negligence or failure to fulfill a specific responsibility to the Owner as set
forth in the Contract Documents.


 


§ 7.6.8 Legal, mediation and arbitration costs, including
attorneys’ fees, other than those arising from disputes between the Owner and
Contractor and/or the Contractor, a Subcontractor, and/or a Sub-Subcontractor
or any of them, reasonably incurred by the Contractor in the performance of the
Work and with the Owner’s prior written approval; which approval shall not be
unreasonably withheld.


 


§ 7.6.9 Expenses incurred in accordance with the Contractor’s
standard personnel policy for relocation and temporary living allowances of
personnel required for the Work, if approved by the Owner.


 


§ 7.6.10 Cost of necessary safety equipment, supplies, drug
testing, safety seminars, and safety incentives.


 


§ 7.6.11 Meals and lodging while conducting business for the
Project.


 


§ 7.6.12 Offsite storage, warehousing and fabrication, if
necessary.


 


§ 7.6.13 Costs incurred after completion of the Project for
warranty items that cannot be billed to Subcontractors, up to a maximum of
Fifty Thousand and No/100 Dollars ($50,000.00).


 


§ 7.7 OTHER COSTS AND EMERGENCIES


 


§ 7.7.1 Any cost not specifically excluded by Article 8
which Contractor incurs in the performance of the Work or furtherance of the
Project.


 


§ 7.7.2 Costs due to emergencies incurred 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 Section 10.6 of AIA Document
A201-1997.


 


§ 7.7.3 Costs of repairing or correcting damaged or
nonconforming Work executed by the Contractor, Subcontractors or suppliers,
provided that such damaged or nonconforming Work was not caused by negligence
or failure to fulfill a specific responsibility of the Contractor and only to
the extent that the cost of repair or correction is not recoverable by the
Contractor from insurance, sureties, Subcontractors or suppliers.


 


ARTICLE 8  COSTS NOT TO BE
REIMBURSED NOR INCLUDED IN THE GUARANTEED MAXIMUM PRICE (GMP)


 


§ 8.1 The Cost of the Work shall not include:


 


§ 8.1.1 Salaries and other compensation of the Contractor’s
personnel stationed at the Contractor’s principal office or offices other than
the site office, except as specifically provided in Sections 7.2.2 and 7.2.3 or
as may be provided in Article 14.


 


§ 8.1.2 Expenses of the Contractor’s principal office and
offices other than the site office.


 


§ 8.1.3 Overhead and general expenses, except as may be
expressly included in Article 7.


 


§ 8.1.4 The Contractor’s capital expenses, including
interest on the Contractor’s capital employed for the Work.


 


§ 8.1.5 Rental costs of machinery and equipment, except as
specifically provided in Section 7.5.2.


 


§ 8.1.6 Except as provided in Section 7.7.3 of this
Agreement, costs due to the negligence or failure to fulfill a specific
responsibility of the Contractor, Subcontractors and suppliers or anyone directly
or indirectly employed by any of them or for whose acts any of them may be
liable.


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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§ 8.1.7 Any cost not specifically and expressly described in
Article 7.


 


§ 8.1.8 Costs, other than costs included in Change Orders
approved by the Owner, that would cause the Guaranteed Maximum Price to be
exceeded.


 


ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS


 


§ 9.1 Cash discounts obtained on payments made by the
Contractor shall accrue to the Owner if (1) before making the payment, the
Contractor included them in an Application for Payment and received payment
therefor from the Owner, or (2) the Owner has deposited funds with the
Contractor with which to make payments; otherwise, cash discounts shall accrue
to the Contractor. Trade discounts, rebates, refunds and amounts received from
sales of surplus materials and equipment shall accrue to the Owner, and the
Contractor shall make provisions so that they can be secured.


 


§ 9.2 Amounts that accrue to the Owner in accordance with
the provisions of Section 9.1 shall be credited to the Owner dollar for dollar
as a deduction from the Cost of the Work.


 


ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS


 


§ 10.1 Those portions of the Work that the Contractor does
not customarily perform with the Contractor’s own personnel shall be performed
under subcontracts or by other appropriate agreements with the Contractor. The
Owner may designate specific persons or entities from whom the Contractor shall
obtain bids. The Contractor shall obtain bids from Subcontractors and from
suppliers of materials or equipment fabricated especially for the Work and
shall deliver such bids to the Architect. The Owner shall then determine, with
the advice of the Contractor and the Architect, which bids will be accepted.
The Contractor shall not be required to contract with anyone to whom the
Contractor has reasonable objection.


 


§ 10.2 If a specific bidder among those whose bids are
delivered by the Contractor to the Architect (1) is recommended to the Owner by
the Contractor; (2) is qualified to perform that portion of the Work; and (3)
has submitted a bid that conforms to the requirements of the Contract Documents
without reservations or exceptions, but the Owner requires that another bid be
accepted, then the Contractor may require that a Change Order be issued to
adjust the Guaranteed Maximum Price by the difference between the bid of the
person or entity recommended to the Owner by the Contractor and the amount of
the subcontract or other agreement actually signed with the person or entity
designated by the Owner.


 


§ 10.3 Subcontracts or other agreements shall conform to
the applicable payment provisions of this Agreement, and shall not be awarded
on the basis of cost plus a fee without the prior consent of the Owner.


 


§ 10.4 The Contractor shall require a clause in all
subcontracts and subsubcontracts prohibiting the Contactors or such
Subcontractor or Subsubcontractor thereunder, as the case may be, from
receiving any discount, refund, inducement, benefit or payment which is not to
or for the benefit of the Owner and which is not reflected in the terms of the
applicable subcontract or subsubcontract, as applicable.  Each subcontractor and subsubcontractor shall
certify as to such statement after written request by the Contractor, the Owner
or the Owner’s Representative or his Designee.


 


ARTICLE 11 ACCOUNTING RECORDS


 


The Contractor shall keep full and detailed
accounts and exercise such controls as may be necessary for proper financial
management under this Contract, and the accounting and control systems shall be
satisfactory to the Owner. The Owner and the Owner’s accountants shall be
afforded access to, and shall be permitted to audit and copy, the Contractor’s
records, books, correspondence, instructions, drawings, receipts, subcontracts,
purchase orders, vouchers, memoranda and other data relating to this Contract,
and the Contractor shall preserve these for a period of three years after final
payment, or for such longer period as may be required by law.


 


ARTICLE 12 PAYMENTS


 


§ 12.1 PROGRESS PAYMENTS


 


§ 12.1.1 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.


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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§ 12.1.2 The period covered by each Application for Payment
shall be one calendar month ending on the last day of the month, or as follows:


 


§ 12.1.3 Provided that an Application for Payment is received
by the Architect not later than the 10th day of a month, the Owner shall make
payment to the Contractor not later than the 30th day of the same 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 twenty (20) days
after the approval by the Owner’s Project Representative or Project
Representative’s Designee.


 


§ 12.1.4


 


With each Application for Payment, the
Contractor shall submit timesheets, petty cash accounts, and along with the
current progress payment, copies of invoices and other documentation to
substantiate Contractor’s costs to date as the date of the Progress Payment
Application unless Contractor’s cost of the work has exceeded the GMP.  After each such Progress Payment Application
has been approved and funded by Owner, the Contractor shall make the payments
to the Subcontractors, Sub-subcontractors, vendors, or suppliers as set forth
in such approved Progress Payment Application.


 


§ 12.1.5 Each Application for Payment shall be based on the
most recent schedule of values approved by the Contractor, the Architect, the
Owner, and the Owner’s Representative in accordance with the Contract
Documents. The schedule of values shall allocate the entire Guaranteed Maximum
Price among the various portions of the Work, except that the Contractor’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 and Owner’s Representative may require. This schedule, unless
objected to by the Architect or the Owner, shall be used as a basis for
reviewing the Contractor’s Applications for Payment.


 


§ 12.1.6 Applications for Payment shall show the percentage
of completion of each portion of the Work as of the end of the period covered
by the Application for Payment. The percentage of 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 that
has actually been incurred by the Contractor on account of that portion of the
Work for which the Contractor 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.


 


§ 12.1.7 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 of 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 shall be included as
provided in Section 7.3.8 of AIA Document A201-1997;


 


.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 Contractor’s
Fee, less retainage.  Retainage shall be
10% until the Work under the Contract Agreement is 50% complete and has been
performed in accordance with the term thereof after which no further retainage
will be held and none shall be released until Substantial Completion, except by
mutual agreement between Owner and Contractor. 
The Contractor’s Fee shall be computed upon the Cost of the Work
described in the two preceding Clauses at the rate stated in Section 5.1.2 or,
if the Contractor’s Fee is stated as a fixed sum in that Subparagraph, shall be
an amount that bears the same ratio to that fixed-sum fee as the Cost of the
Work in the two preceding Clauses bears to a reasonable estimate of the
probable Cost of the Work upon its completion;


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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9





















 


.4              subtract the
aggregate of previous payments made by the Owner;


 


.5              subtract the
shortfall, if any, indicated by the Contractor in the documentation required by
Section 12.1.4 to substantiate prior Applications for Payment, or resulting
from errors subsequently discovered by the Owner’s accountants in such
documentation; and


 


.6              subtract amounts,
if any, for which the Architect has withheld or nullified a Certificate for
Payment as provided in Section 9.5 of AIA Document A201-1997.


 


§ 12.1.8 Except with the Owner’s prior approval, payments to
Subcontractors shall be subject to retainage. 
Retainage shall be 10% until the Work under the subcontract agreement is
50% complete and has been performed in accordance with the terms thereof after
which no further retainage will be held and none shall be released until
Substantial Completion, except by mutual agreement between Owner and
Contractor.  The Owner and the Contractor
shall agree upon a mutually acceptable procedure for review and approval of
payments and retention for Subcontractors. 
The Contractor shall not request payment from Owner for any amount being
withheld from a Subcontractor until such time as such withheld payment is to be
paid to the Subcontractor in accordance with its subcontract agreement.


 


§ 12.1.9 In taking action on the Contractor’s Applications
for Payment, the Architect, the Owner’s Representative, and/or his Designee
shall be entitled to rely on the accuracy and completeness of the information
furnished by the Contractor and shall not be deemed to represent that the
Architect, the Owner, the Owner’s Representative, and/or his Designee has made
a detailed examination, audit or arithmetic verification of the documentation
submitted in accordance with Section 12.1.4 or other supporting data; that the
Architect, the Owner, the Owner’s Representative, and/or his Designee has made
exhaustive or continuous on-site inspections or that the Architect, the Owner,
the Owner’s Representative, and/or his Designee has made examinations to
ascertain how or for what purposes the Contractor 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.


 


§ 12.2 FINAL PAYMENT


 


§ 12.2.1 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 Section 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 after approval by the Owner’s
Representative or his Designee.


 


§ 12.2.2 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:


 


§ 12.2.3 The Owner’s accountants will review and report in
writing on the Contractor’s final accounting within 30 days after delivery of
the final accounting to the Architect by the Contractor. Based upon such Cost
of the Work as the Owner’s accountants report to be substantiated by the
Contractor’s final accounting, and provided the other conditions of Section
12.2.1 have been met, the Architect will, within seven days after approval of
the written report by the Owner’s accountants and the Owner’s Representative or
his Designee, either issue to the Owner a final Certificate for Payment with a
copy to the Contractor, or notify the Contractor and Owner in writing of the
Architect’s reasons for withholding a certificate as provided in Section 9.5.1
of the AIA Document A201-1997. The time periods stated in this Section 12.2.3
supersede those stated in Section 9.4.1 of the AIA Document A201-1997.  Total time for review and approval of the
accounting report and issuance of a final Certificate of Payment, By Owner,
Architect, Owner’s Accountants, Owner’s Representative, and all other


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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10





















 


parties deemed necessary by Owner shall not
exceed 30 days (unless additional time is reasonably required to correct errors
and/or inconsistencies in the accounting report and the Certificate of
Payment).


 


§ 12.2.4 If the Owner’s accountants report the Cost of the
Work as substantiated by the Contractor’s final accounting to be less than
claimed by the Contractor, the Contractor shall be entitled to demand
arbitration of the disputed amount without a further decision of the Architect.
Such demand for arbitration shall be made by the Contractor within 30 days
after the Contractor’s receipt of a copy of the Architect’s final Certificate
for Payment; failure to demand arbitration within this 30-day period shall
result in the substantiated amount reported by the Owner’s accountants becoming
binding on the Contractor. Pending a final resolution by arbitration, the Owner
shall pay the Contractor the amount certified in the Architect’s final
Certificate for Payment.


 


§ 12.2.5 If, subsequent to final payment and at the Owner’s
request, the Contractor incurs costs described in Article 7 and not excluded by
Article 8 to correct defective or nonconforming Work, the Owner shall reimburse
the Contractor such costs and the Contractor’s Fee applicable thereto up to a
maximum warranty cost of Fifty Thousand and No/100 Dollars ($50,000.00) 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 Contractor has participated
in savings as provided in Section 5.2, 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 Contractor.


 


ARTICLE 13 TERMINATION OR SUSPENSION


 


§ 13.1 The Contract may be terminated by the Contractor, or
by the Owner for convenience, as provided in Article 14 of AIA Document
A201-1997.  However, the amount to be
paid to the Contractor under Section 14.1.3 of AIA Document A201-1997 shall not
exceed the amount the Contractor would be entitled to receive under Section
13.2 below, except as follows:


 


If the contract is terminated by the Owner,
Contractor shall be paid for all costs of work incurred to date of said
termination, plus reasonable termination costs not to exceed Thirty Thousand
and No/100 Dollars ($30,000.00) for items including but not limited to
demobilization, termination of contracts, re-stocking charges, etc., and
Contractor’s fee of three and one half percent (3 1⁄2%) on all costs of
construction and termination.


 


§ 13.2 The Contract may be terminated by the Owner for
cause as provided in Article 14 of AIA Document A201-1997. The amount, if any,
to be paid to the Contractor under Section 14.2.4 of AIA Document A201-1997
shall not cause the Guaranteed Maximum Price to be exceeded, nor shall it
exceed an amount calculated as follows:


 


§ 13.2.1 Take the Cost of the Work incurred by the Contractor
to the date of termination;


 


§ 13.2.2 Add the Contractor’s Fee computed upon the Cost of
the Work to the date of termination at the rate stated in Section 5.1.2 or, if
the Contractor’s Fee is stated as a fixed sum in that Section, an amount that
bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time
of termination bears to a reasonable estimate of the probable Cost of the Work
upon its completion; and


 


§
13.2.3 Subtract the aggregate of previous payments made by the Owner.


 


§ 13.3 The Owner shall also pay the Contractor the actual
out of pocket costs of the Contractor, either by purchase or rental at the
election of the Owner, for any equipment owned by the Contractor that the Owner
elects to retain and that is not otherwise included in the Cost of the Work
under Section 13.2.1. To the extent that the Owner elects to take legal
assignment of subcontracts and purchase orders (including rental agreements),
the Contractor shall, as a condition of receiving the payments referred to in
this Article 13, execute and deliver all such papers and take all such steps,
including the legal assignment of such subcontracts and other contractual
rights of the Contractor, as the Owner may require for the purpose of fully
vesting in the Owner the rights and benefits of the Contractor under such
subcontracts or purchase orders.


 


§ 13.4 The Work may be suspended by the Owner as provided
in Article 14 of AIA Document A201-1997; in such case, the Guaranteed Maximum
Price and Contract Time shall be increased as provided in Section 14.3.2 of AIA
Document A201-1997 except that the term “profit” shall be understood to mean
the Contractor’s Fee as described in Sections 5.1.2 and Section 6.4 of this
Agreement.


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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11





















 


ARTICLE 14 MISCELLANEOUS PROVISIONS


 


§ 14.1 Where reference is made in this Agreement to a
provision 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.


 


§ 14.2 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.)


 


12% APR


 


(Usury laws and
requirements under the Federal Truth in Lending Act, similar state and local
consumer credit laws and other regulations at 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.)


 


§ 14.3 The Owner’s representative is:


(Name, address and other
information.)


 


Michael Luzich


Diamond Jo Worth, LLC

400 East 3rd Street

Dubuque, IA 52001

563-690-2120


 


§ 14.3.1 The Owner representative’s designee is:


 


Kevin Fontenot


Diamond Jo Worth, LLC


400 East 3rd Street


Dubuque, IA 52001


563-690-2120


 


§ 14.4 The Contractor’s representative is:


(Name, address and other
information.)


 


Alan Kittleson, Vice President

Henkel Construction Company

208 East State Street, P.O. Box 920

Mason City, IA 50401

641-423-5674


 


§ 14.5 Neither the Owner’s nor the Contractor’s
representative shall be changed without ten days’ written notice to the other
party.


 


§ 14.6 Other provisions:


 


It is hereby mutually agreed that Owner and
Contractor are entering into this agreement without a Guaranteed Maximum Price
(GMP) to expedite the start of construction for the benefit of the Owner.


 


It is further mutually agreed that the
Contractor will submit to Owner a proposed Change Order setting forth the
Guaranteed Maximum Price (GMP) (together with all underlying assumptions) no
later than fifteen (15) working days after receipt of the Guaranteed Maximum
Price documents from Owner.  After
approval of the GMP, the Contractor will enter into subcontract agreements with
Subcontractors, Sub-subcontractors, material and


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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12





















 


equipment suppliers and vendors in accordance
with this Contract.  Prior to the
approval of such Change Order, construction will commence pursuant to separate
agreements with certain Subcontractors, Sub-subcontractors, material and
equipment suppliers and vendors and the terms of such separate agreements shall
be replaced by such subcontract agreements.


 


ARTICLE 15 ENUMERATION OF CONTRACT DOCUMENTS


 


§ 15.1 The Contract Documents, except for Modifications
issued after execution of this Agreement, are enumerated as follows:


 


§ 15.1.1 The Agreement is this executed 1997 edition of the
Standard Form of Agreement Between Owner and Contractor, AIA Document
A111-1997.


 


§ 15.1.2 The General Conditions are the 1997 edition of the
General Conditions of the Contract for Construction, AIA Document A201-1997, as
modified by Agreement between Owner and Contractor.


 


§ 15.1.3 The Supplementary and other Conditions of the
Contract are those contained in the Project Manual dated         , and are as follows:


 


	
  Document

  	
   

  	
  Title

  	
   

  	
  Pages

  	
   

  
	
  To be determined

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


§ 15.1.4 The Specifications are those contained in the
Project Manual dated as in Section 15.1.3, and are as follows:


(Either list the
Specifications here or refer to an exhibit attached to this Agreement.)


Title of Specifications exhibit:


To be determined


 


§ 15.1.5 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.)


Title of Drawings exhibit:


To be determined


 


§ 15.1.6 The Addenda, if any, are as follows:


 


	
  Number

  	
   

  	
  Date

  	
   

  	
  Pages

  	
   

  
	
  To be determined

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Portions of Addenda relating to bidding
requirements are not part of the Contract Documents unless the bidding
requirements are also enumerated in this Article 15.


 


§ 15.1.7 Other Documents, if any, forming part of the
Contract Documents are as follows:


(List here any additional
documents, such as a list of alternates 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.)


 


Exhibit “A” – “Insurance, Indemnification,
Bonding, and Waiver of Subrogation”


Attachment “A” – “Billing Labor Rate Schedule”


 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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ARTICLE 16
INSURANCE AND BONDS


 


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.


 


	
  Diamond Jo Worth, LLC 

  	
   

  	
  Henkel Construction Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
    OWNER (Signature)

  	
   

  	
    CONTRACTOR (Signature)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
    Michael S. Luzich, President

  	
   

  	
    Thomas R. Schaefer, President

  	
   

  
	
    (Printed name
  and title)

  	
   

  	
    (Printed name
  and title)

  	
   

  



 


 


AIA Document
A111TM – 1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974,
1978, 1987 and 1997 by The American Institute of Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
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14





















 


Additions
and Deletions Report for


 


AIA® Document
A111TM – 1997


 


This Additions and Deletions Report, as
defined on page 1 of the associated document, reproduces below all text the
author has added to the standard form AIA document in order to complete it, as
well as any text the author may have added to or deleted from the original AIA text.
Added text is shown underlined. Deleted text is indicated with a horizontal
line through the original AIA text.


 


Note: 
This Additions and Deletions Report is provided for information purposes
only and is not incorporated into or constitute any part of the associated AIA
document. This Additions and Deletions Report and its associated document were
generated simultaneously by AIA software at 11:28:39 on 06/04/2005.


 


PAGE 1


 


AGREEMENT made as of the 6th day of June in the year
Two Thousand Five


 


...


Diamond Jo Worth, LLC


...


400 East 3rd Street


...


Dubuque, IA 52001


...


Henkel Construction Company


...


208 East State Street, P.O. Box 920


...


Mason City, IA 50401


...


Excursion Gambling Boat


...


Worth County, IA


...


KGA Architecture


...


4495 South Polaris Avenue


...


Las Vegas, NV 89103


 


PAGE 2


 


Date of commencement shall be established as
June 6, 2005 or the date upon which Contractor has received owner’s written
Notice to Proceed, proof of financing acceptable to Contractor for the Initial
Contract Sum, and a fully executed Contract. 
Contractor shall acknowledge in writing when these conditions have been
met.  This acknowledgment shall be given
by a separate letter.


...


§ 4.3 The Contractor shall achieve Substantial Completion
of the Contractor’s Work not later than 235 calendar days from the date of
commencement, per Article 4.1:


...


“Substantial Completion” (or similar words
such as “Substantially Complete”, and any derivation thereof) means that the
following has occurred:


...


The construction of the Project (other than exterior items if same cannot be completed due to adverse weather
conditions) has been completed in accordance with this Contract and
the Contract Documents and in substantial compliance with all legal
requirements pertaining to Contractor’s Work so as to allow the Project to be
utilized for its intended purpose, in each case, as reasonably determined by
the Architect after consultation with the Contractor and the Owner (but without
giving effect to any work to be completed by the Owner or any other person
and/or any


 


 


Additions
and Deletions Report for AIA Document A111TM – 1997. Copyright © 1920, 1925, 1951,
1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of
Architects.   All rights reserved. 
WARNING: This AIA® Document is protected by U.S. Copyright
Law and International Treaties. Unauthorized reproduction or distribution of
this AIA® Document, or any portion of it, may result in severe civil
and criminal penalties, and will be prosecuted to the maximum extent possible
under the law.  This document was produced by AIA
software at 11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on
1/31/2006, and is not for resale.


 


	
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1





















 


work for which the Contractor has no legal obligation to control, contractual
relationship with, or
responsibility to complete under the Contract).


...


§ 4.3.1 The Contractor shall achieve Substantial Completion
on or before the date which is 235 calendar days after all items in Article 4.1
Paragraph 2 above have been satisfied. 
The Contractor acknowledges and agrees that time is of the essence as to
such date of Substantial Completion and the Contractor and the Owner each agree
that the damages to be suffered by the Owner for the Contractor’s failure to
achieve Substantial Completion by said date are not susceptible to
calculation.  Accordingly, the Contractor
and the Owner agree that the Guaranteed Maximum Price (GMP) shall be reduced by
an amount equal to $10,000 for each day that Substantial Completion extends
beyond said date and the Owner acknowledges that such liquidated damages shall
be the only damages to be recovered by the Owner with respect to failure to
achieve Substantial Completion by said date. 
Adjustments to Guaranteed Maximum Price (GMP) as set forth in this
Section shall be by Change Order which shall be prepared by the Architect for
signature by the Owner, the Contractor and the Architect within ten (10) days
after Substantial Completion.


 


PAGE 3


 


	
  59,400
  Square Foot Casino

  	
   

  	
  Two-Hundred-Thirty-Five
  (235) Calendar Days

  
	
   

  	
   

  	
  from the
  Date of Commencement per Articles 4.1

  
	
   

  	
   

  	
  and 4.3
  above.

  



...


§ 5.1.2 The Contractor’s Fee is as follows:


...


Total fee compensation to be paid to
Contractor shall be a flat fee of Seven-Hundred-Thousand and No/100 Dollars
($700,000.00) plus 3.5% of the Cost of the Work involved in any additive Change
Orders (other than the Change Orders for the hotel construction and the
GMP).  Owner may add the construction of
a 100 room hotel by Change Order for the separate flat fee of Two-Hundred-Fifty-Thousand
and No/100 Dollars ($250,000.00) if hotel construction is added by Change Order
prior to January 1, 2006.  Fees shall not
be reduced for change orders resulting in a lower cost of the Work.


...


§ 5.2.1 The sum of the Cost of the Work and the Contractor’s
Fee shall be a maximum sum guaranteed by the Contractor, subject to additions
and deductions by Change Order as provided in the Contract Documents. Such
maximum sum is referred to in the Contract Documents as the Guaranteed Maximum
Price. Costs which would cause the Guaranteed Maximum Price to be exceeded
shall be paid by the Contractor without reimbursement by the Owner.


...


Initial Contract Sum (including partial
Contractor’s Fee) shall be Nine-Hundred-Twenty-Five-Thousand and No/100 Dollars
($925,000.00) and shall include project mobilization, site fencing, caisson
drilling and installation, and site mass earthwork.


...


Guaranteed Maximum Price (GMP) shall be added
to this Contract by Change Order.  The
Guaranteed Maximum Price shall be an amount mutually agreed to by Owner and
Contractor which includes the Cost of the Work as defined in Article 7 plus the
Contractor’s Fee.


 


PAGE 4


 


§ 5.2.1.1 From and after the date on which the Guaranteed
Maximum Price (GMP) has been established and all of the Work has been
contracted with Subcontractors and providers of equipment and materials in
accordance with the Contract Documents, any subsequent reductions in the scope
of the Work which reduce the Cost of the Work in the Guaranteed Maximum Price (GMP)
will be incorporated into the Contract by a Change Order which reduces the GMP
by an amount equal to the cost reduction generated by that change in
scope.  Prior to Substantial Completion,  reductions in cost and/or savings achieved by
the Contractor in any manner other than a reduction in scope shall not result
in a reduction of the Guaranteed Maximum Price.


...


Within (30) days after the date on which
Substantial Completion occurs (or such other date approved by the Contractor
and the Owner), the Cost of the Work shall be determined by the Owner and the
Contractor.  In the event


 


 


Additions
and Deletions Report for AIA Document A111TM – 1997. Copyright © 1920, 1925, 1951,
1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of
Architects.   All rights reserved. 
WARNING: This AIA® Document is protected by U.S. Copyright
Law and International Treaties. Unauthorized reproduction or distribution of
this AIA® Document, or any portion of it, may result in severe civil
and criminal penalties, and will be prosecuted to the maximum extent possible
under the law.  This document was produced by AIA
software at 11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on
1/31/2006, and is not for resale.


 


	
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2





















 


that the sum of the Cost of the Work and the
Contractor’s Fee are less than the GMP, 100% of all savings (other than cash
discounts which are for the benefit of the Contractor pursuant to Article 9)
will be retained by the Owner.  Such
savings shall reduce the Cost of the Work and the parties will enter into a
Change Order which reduces the GMP by an amount equal to such savings.


...


To be determined.


...


To
be determined


...


To
be determined


...


To be determined


...


§ 5.2.6 To the extent that the Drawings and Specifications
are anticipated to require further development by the Architect, the Contractor
has provided in the Guaranteed Maximum Price for such further development
consistent with the Contract Documents as set forth in a change order.  Such further development does not include
such things as changes in scope, systems, kinds and quality of materials,
finishes or equipment, all of which, if required, shall be incorporated by
Change Order.


 


PAGE 5


 


ARTICLE 7  COSTS
TO BE REIMBURSED AND INCLUDED IN THE GUARANTEED MAXIMUM PRICE (GMP)


...


Labor Costs of the Contractor’s supervisory
and administrative personnel and workmen and women when at the site or engaged
in the performance of Contractor’s Work for this project (including Work
performed pursuant to Change Orders).


...


See Attachment “A” – Worth County Excursion
Gambling Boat Labor Rate Schedule for labor rates which will apply to the
Contract.  These labor rates include all
benefits, workers compensation costs, and other amounts paid or payable to, or
with respect to, such personnel and workmen and women and shall remain in
effect throughout construction of the Project (including Work performed
pursuant to Change Orders) other than the Change Order for the hotel
construction which shall set forth a separate Guaranteed Maximum Price for the
hotel construction) and shall apply to all Henkel Construction Company project
management and field labor performed on the Project.


...


Amounts properly billed by Subcontractors for
Work in accordance with subcontracts covering their portions of the Work which
subcontracts shall be approved by the Owner and the Contractor in accordance
with the Contract Documents.  If Owner’s
rejection of Subcontractor, Sub-subcontractor, supplier, or vendor results in a
purchase cost or schedule duration which exceeds what Contractor has proposed,
then a Change Order shall be executed by Owner adding such extra costs and/or
time.


 


PAGE 6


 


§ 7.5.2 Rental charges for temporary facilities, machinery,
fuel, oil, grease, equipment, and hand tools not customarily owned by
construction workers that are provided by the Contractor at the site, whether
rented from the Contractor 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.  Internal rental rates for
Henkel Construction Company furnished rental equipment shall be hourly and
shall be based on 100% of current AED Green Book rates.


...


§ 7.5.4 Costs of document reproductions, facsimile
transmissions and long-distance telephone calls, postage and parcel delivery
charges, cellular telephone charges and pager services, photographs, telephone
and internet service at the site and reasonable petty cash expenses of the site
office.


...


All applicable taxes and fees associated with
Contractor’s Work.


 


 


Additions
and Deletions Report for AIA Document A111TM – 1997. Copyright © 1920, 1925, 1951,
1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of
Architects.   All rights reserved. 
WARNING: This AIA® Document is protected by U.S. Copyright
Law and International Treaties. Unauthorized reproduction or distribution of
this AIA® Document, or any portion of it, may result in severe civil
and criminal penalties, and will be prosecuted to the maximum extent possible
under the law.  This document was produced by AIA
software at 11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on
1/31/2006, and is not for resale.


 


	
  User Notes:

  	
   

  	
  (3955002732)

  



 


3





















 


...


PAGE 7


 


§ 7.6.6 Data processing costs related to the Work including
all hardware and software costs.


...


§ 7.6.8 Legal, mediation and arbitration costs, including
attorneys’ fees, other than those arising from disputes between the Owner and
Contractor and/or the Contractor, a Subcontractor, and/or a Sub-Subcontractor
or any of them, reasonably incurred by the Contractor in the performance of the
Work and with the Owner’s prior written approval; which approval shall not be
unreasonably withheld.


...


§ 7.6.10 Cost of necessary safety equipment, supplies, drug
testing, safety seminars, and safety incentives.


...


§ 7.6.11 Meals and lodging while conducting business for the
Project.


...


§ 7.6.12 Offsite storage, warehousing and fabrication, if
necessary.


...


§ 7.6.13 Costs incurred after completion of the Project for
warranty items that cannot be billed to Subcontractors, up to a maximum of
Fifty Thousand and No/100 Dollars ($50,000.00).


...


§ 7.7.1 Any cost not specifically excluded by Article 8
which Contractor incurs in the performance of the Work or furtherance of the
Project.


...


ARTICLE 8 COSTS NOT TO BE REIMBURSED NOR INCLUDED IN
THE GUARANTEED MAXIMUM PRICE (GMP)


 


PAGE 8


 


§ 9.2 Amounts that accrue to the Owner in accordance with
the provisions of Section 9.1 shall be credited to the Owner dollar for dollar
as a deduction from the Cost of the Work.


...


§ 10.4 The Contractor shall require a clause in all
subcontracts and subsubcontracts prohibiting the Contactors or such
Subcontractor or Subsubcontractor thereunder, as the case may be, from
receiving any discount, refund, inducement, benefit or payment which is not to
or for the benefit of the Owner and which is not reflected in the terms of the
applicable subcontract or subsubcontract, as applicable.  Each subcontractor and subsubcontractor shall
certify as to such statement after written request by the Contractor, the Owner
or the Owner’s Representative or his Designee.


 


PAGE 9


 


§ 12.1.3 Provided that an Application for Payment is received
by the Architect not later than the 10th day of a month, the Owner shall make
payment to the Contractor not later than the 30th day of the same 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 twenty (20) days
after the approval by the Owner’s Project Representative or Project
Representative’s Designee.


...


§ 12.1.4 


 


 


Additions
and Deletions Report for AIA Document A111TM – 1997. Copyright © 1920, 1925, 1951,
1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of
Architects.   All rights reserved. 
WARNING: This AIA® Document is protected by U.S. Copyright
Law and International Treaties. Unauthorized reproduction or distribution of
this AIA® Document, or any portion of it, may result in severe civil
and criminal penalties, and will be prosecuted to the maximum extent possible
under the law.  This document was produced by AIA
software at 11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on
1/31/2006, and is not for resale.


 


	
  User Notes:

  	
   

  	
  (3955002732)

  



 


4





















 


...


With each Application for Payment, the
Contractor shall submit timesheets, petty cash accounts, and along with the
current progress payment, copies of invoices and other documentation to
substantiate Contractor’s costs to date as the date of the Progress Payment
Application unless Contractor’s cost of the work has exceeded the GMP.  After each such Progress Payment Application
has been approved and funded by Owner, the Contractor shall make the payments
to the Subcontractors, Sub-subcontractors, vendors, or suppliers as set forth in
such approved Progress Payment Application.


...


§ 12.1.5 Each Application for Payment shall be based on the
most recent schedule of values approved by the Contractor, the Architect, the
Owner, and the Owner’s Representative in accordance with the Contract
Documents. The schedule of values shall allocate the entire Guaranteed Maximum
Price among the various portions of the Work, except that the Contractor’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 and Owner’s Representative may require. This schedule, unless
objected to by the Architect or the Owner, shall be used as a basis for
reviewing the Contractor’s Applications for Payment.


...


.3              add the Contractor’s
Fee, less retainage.  Retainage shall be
10% until the Work under the Contract Agreement is 50% complete and has been
performed in accordance with the term thereof after which no further retainage
will be held and none shall be released until Substantial Completion, except by
mutual agreement between Owner and Contractor. The Contractor’s Fee shall be
computed upon the Cost of the Work described in the two preceding Clauses at
the rate stated in Section 5.1.2 or, if the Contractor’s Fee is stated as a
fixed sum in that Subparagraph, shall be an amount that bears the same ratio to
that fixed-sum fee as the Cost of the Work in the two preceding Clauses bears
to a reasonable estimate of the probable Cost of the Work upon its completion;


 


PAGE 10


 


§ 12.1.8 Except with the Owner’s prior approval, payments to
Subcontractors shall be subject to retainage. 
Retainage shall be 10% until the Work under the subcontract agreement is
50% complete and has been performed in accordance with the terms thereof after
which no further retainage will be held and none shall be released until
Substantial Completion, except by mutual agreement between Owner and
Contractor.  The Owner and the Contractor
shall agree upon a mutually acceptable procedure for review and approval of
payments and retention for Subcontractors. 
The Contractor shall not request payment from Owner for any amount being
withheld from a Subcontractor until such time as such withheld payment is to be
paid to the Subcontractor in accordance with its subcontract agreement.


...


§ 12.1.9 In taking action on the Contractor’s Applications
for Payment, the Architect, the Owner’s Representative, and/or his Designee
shall be entitled to rely on the accuracy and completeness of the information
furnished by the Contractor and shall not be deemed to represent that the
Architect, the Owner, the Owner’s Representative, and/or his Designee has made
a detailed examination, audit or arithmetic verification of the documentation
submitted in accordance with Section 12.1.4 or other supporting data; that the
Architect, the Owner, the Owner’s Representative, and/or his Designee has made
exhaustive or continuous on-site inspections or that the Architect, the Owner,
the Owner’s Representative, and/or his Designee has made examinations to
ascertain how or for what purposes the Contractor 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.


...


.2              a final Certificate
for Payment has been issued by the Architect after approval by the Owner’s
Representative or his Designee.


...


§ 12.2.3 The Owner’s accountants will review and report in
writing on the Contractor’s final accounting within 30 days after delivery of
the final accounting to the Architect by the Contractor. Based upon such Cost
of the Work as the Owner’s accountants report to be substantiated by the
Contractor’s final accounting, and provided the other conditions of Section
12.2.1 have been met, the Architect will, within seven days after approval of
the written report by the Owner’s accountants and the Owner’s Representative or
his Designee, either issue to the Owner a final Certificate for Payment with a
copy to the Contractor, or notify the


 


 


Additions
and Deletions Report for AIA Document A111TM – 1997. Copyright © 1920, 1925, 1951,
1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of
Architects.   All rights reserved. 
WARNING: This AIA® Document is protected by U.S. Copyright
Law and International Treaties. Unauthorized reproduction or distribution of
this AIA® Document, or any portion of it, may result in severe civil
and criminal penalties, and will be prosecuted to the maximum extent possible
under the law.  This document was produced by AIA
software at 11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on
1/31/2006, and is not for resale.


 


	
  User Notes:

  	
   

  	
  (3955002732)

  



 


5





















 


Contractor and Owner in writing of the
Architect’s reasons for withholding a certificate as provided in Section 9.5.1
of the AIA Document A201-1997. The time periods stated in this Section 12.2.3
supersede those stated in Section 9.4.1 of the AIA Document A201-1997.  Total time for review and approval of the
accounting report and issuance of a final Certificate of Payment, By Owner,
Architect, Owner’s Accountants, Owner’s Representative, and all other parties
deemed necessary by Owner shall not exceed 30 days (unless additional time is
reasonably required to correct errors and/or inconsistencies in the accounting
report and the Certificate of Payment).


 


PAGE 11


 


§ 12.2.5 If, subsequent to final payment and at the Owner’s
request, the Contractor incurs costs described in Article 7 and not excluded by
Article 8 to correct defective or nonconforming Work, the Owner shall reimburse
the Contractor such costs and the Contractor’s Fee applicable thereto up to a
maximum warranty cost of Fifty Thousand and No/100 Dollars ($50,000.00) 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 Contractor has participated
in savings as provided in Section 5.2, 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 Contractor.


...


§ 13.1 The Contract may be terminated by the Contractor, or
by the Owner for convenience, as provided in Article 14 of AIA Document
A201-1997.  However, the amount to be
paid to the Contractor under Section 14.1.3 of AIA Document A201-1997 shall not
exceed the amount the Contractor would be entitled to receive under Section
13.2 below, except as follows:


...


If the contract is terminated by the Owner,
Contractor shall be paid for all costs of work incurred to date of said
termination, plus reasonable termination costs not to exceed Thirty Thousand
and No/100 Dollars ($30,000.00) for items including but not limited to
demobilization, termination of contracts, re-stocking charges, etc., and
Contractor’s fee of three and one half percent (3 1⁄2%) on all costs of
construction and termination.


...


§ 13.3 The Owner shall also pay the Contractor the actual
out of pocket costs of the Contractor, either by purchase or rental at the election
of the Owner, for any equipment owned by the Contractor that the Owner elects
to retain and that is not otherwise included in the Cost of the Work under
Section 13.2.1. To the extent that the Owner elects to take legal assignment of
subcontracts and purchase orders (including rental agreements), the Contractor
shall, as a condition of receiving the payments referred to in this Article 13,
execute and deliver all such papers and take all such steps, including the
legal assignment of such subcontracts and other contractual rights of the
Contractor, as the Owner may require for the purpose of fully vesting in the
Owner the rights and benefits of the Contractor under such subcontracts or
purchase orders.


 


PAGE 12


 


12% APR


...


Michael Luzich


...


Diamond Jo Worth, LLC


...


400 East 3rd Street


...


Dubuque, IA 52001


...


563-690-2120


...


§ 14.3.1 The Owner representative’s designee is:


...


Kevin Fontenot


...


Diamond Jo Worth, LLC


...


 


 


Additions
and Deletions Report for AIA Document A111TM – 1997. Copyright © 1920, 1925, 1951,
1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of
Architects.   All rights reserved. 
WARNING: This AIA® Document is protected by U.S. Copyright
Law and International Treaties. Unauthorized reproduction or distribution of
this AIA® Document, or any portion of it, may result in severe civil
and criminal penalties, and will be prosecuted to the maximum extent possible
under the law.  This document was produced by AIA
software at 11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on
1/31/2006, and is not for resale.


 


	
  User Notes:

  	
   

  	
  (3955002732)

  



 


6





















 


400 East 3rd Street


...


Dubuque, IA 52001


...


563-690-2120


...


Alan Kittleson, Vice President


...


Henkel Construction Company


...


208 East State Street, P.O. Box 920


...


Mason City, IA 50401


...


641-423-5674


...


It is hereby mutually agreed that Owner and
Contractor are entering into this agreement without a Guaranteed Maximum Price
(GMP) to expedite the start of construction for the benefit of the Owner.


...


It is further mutually agreed that the
Contractor will submit to Owner a proposed Change Order setting forth the
Guaranteed Maximum Price (GMP) (together with all underlying assumptions) no
later than fifteen (15) working days after receipt of the Guaranteed Maximum
Price documents from Owner.  After
approval of the GMP, the Contractor will enter into subcontract agreements with
Subcontractors, Sub-subcontractors, material and equipment suppliers and
vendors in accordance with this Contract. 
Prior to the approval of such Change Order, construction will commence
pursuant to separate agreements with certain Subcontractors, Sub-subcontractors,
material and equipment suppliers and vendors and the terms of such separate
agreements shall be replaced by such subcontract agreements.


 


PAGE 13


...


...


...


§ 15.1.2 The General Conditions are the 1997 edition of the
General Conditions of the Contract for Construction, AIA Document. A201-1997,
as modified by Agreement between Owner and Contractor.


...


To
be determined


...


Title of Specifications exhibit:


...


To be determined


...


Title of Drawings exhibit:


...


To be determined


...


To
be determined


...


Exhibit “A” – “Insurance, Indemnification,
Bonding, and Waiver of Subrogation”


...


 


 


Additions
and Deletions Report for AIA Document A111TM – 1997. Copyright © 1920, 1925, 1951,
1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of
Architects.   All rights reserved.  WARNING: This AIA® Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA® Document, or any portion
of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law.  This document was produced by AIA software at
11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on 1/31/2006,
and is not for resale.


 


	
  User Notes:

  	
   

  	
  (3955002732)

  



 


7





















 


Attachment “A” — “Billing Labor Rate Schedule”


 


PAGE 14


 


...


	
  Diamond Jo Worth, LLC

  	
   

  	
  Henkel Construction Company

  	
   

  
	
  ...

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Michael S. Luzich, President

  	
   

  	
  Thomas R. Schaefer, President

  	
   

  



 


 


Additions
and Deletions Report for AIA Document A111TM – 1997. Copyright © 1920, 1925, 1951,
1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of
Architects.   All rights reserved. 
WARNING: This AIA® Document is protected by U.S. Copyright
Law and International Treaties. Unauthorized reproduction or distribution of
this AIA® Document, or any portion of it, may result in severe civil
and criminal penalties, and will be prosecuted to the maximum extent possible
under the law.  This document was produced by AIA
software at 11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on
1/31/2006, and is not for resale.


 


	
  User Notes:

  	
   

  	
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8





















 


Certification of Document’s Authenticity


AIA®
Document D401TM  – 2003


 


I,  ,
hereby certify, to the best of my knowledge, information and belief, that I
created the attached final document simultaneously with its associated
Additions and Deletions Report and this certification at 11:28:39 on 06/04/2005
under Order No. 1000159854_1 from AIA Contract Documents software and that in
preparing the attached final document I made no changes to the original text of
AIA® Document A111TM – 1997 - Standard Form of Agreement Between
Owner and Contractor where the basis for payment is the COST OF THE WORK PLUS A
FEE with a negotiated Guaranteed Maximum Price, as published by the AIA in its
software, other than those additions and deletions shown in the associated
Additions and Deletions Report.


 


	
   

  	
   

  
	
  (Signed)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Title)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Dated)

  	
   

  



 


 


AIA Document
D401TM – 2003. Copyright © 1992 and 2003 by The American Institute of
Architects.   All rights reserved. 
WARNING: This AIA® Document is protected by U.S. Copyright
Law and International Treaties. Unauthorized reproduction or distribution of
this AIA® Document, or any portion of it, may result in severe civil
and criminal penalties, and will be prosecuted to the maximum extent possible
under the law.  This document was produced by AIA
software at 11:28:39 on 06/04/2005 under Order No.1000159854_1 which expires on
1/31/2006, and is not for resale.


 


	
  User Notes:

  	
   

  	
  (3955002732)

  



 


1