Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Conseco, Inc. 1993 Form 10-K 114 572K
4: EX-10.18.20 Exhibit 10.18.20 to Conseco, Inc. 1993 Form 10-K 9 50K
5: EX-10.18.21 Exhibit 10.18.21 to Conseco, Inc. 1993 Form 10-K 13 64K
6: EX-10.18.22 Exhibit 10.18.22 to Conseco, Inc. 1993 Form 10-K 13 59K
7: EX-10.18.23 Exhibit 10.18.23 to Conseco, Inc. 1993 Form 10-K 5 30K
8: EX-10.18.24 Exhibit 10.18.24 to Conseco, Inc. 1993 Form 10-K 7 29K
9: EX-10.18.25 Exhibit 10.18.25 to the Conseco, Inc. 1993 Form 9 50K
10-K
10: EX-10.23.1 Exhibit 10.23.1 to Conseco, Inc. 1993 Form 10-K 10 31K
11: EX-10.24.1 Exhibit 10.24.1 Conseco, Inc. 1993 Form 10-K 8 31K
12: EX-10.25 Exhibit 10.25 to Conseco, Inc. 1993 Form 10-K 18 89K
13: EX-10.32 Exhibit 10.32 to Conseco, Inc. 1993 Form 10-K 35 146K
14: EX-10.33.1 Exhibit 10.33.1 to Conseco, Inc. 1993 Form 10-K 30 162K
15: EX-10.33.2 Exhibit 10.33.2 to Conseco, Inc. 1993 Form 10-K 27 145K
16: EX-10.34 Exhibit 10-34 to Conseco, Inc. 1993 Form 10-K 18 84K
2: EX-10.8.5 Exhibit 10.8.5 to Conseco, Inc. 1993 Form 10-K 2± 10K
3: EX-10.8.6 Exhibit 10.8.6 to Conseco, Inc. 1993 Form 10-K 2± 12K
17: EX-11.1 Exhibit 11.1 to Conseco, Inc. 1993 Form 10-K 2± 12K
18: EX-11.2 Exhibit 11.2 to Conseco, Inc. 1993 Form 10-K 1 11K
19: EX-12.1 Exhibit 12.1 to Conseco, Inc. 1993 Form 10-K 2± 14K
20: EX-12.2 Exhibit 12.2 to Conseco, Inc. 1993 Form 10-K 2± 14K
21: EX-21 Exhibit 21 to Conseco, Inc. 1993 Form 10-K 1 9K
22: EX-23 Exhibit 23 to Conseco, Inc. 1993 Form 10-K 1 9K
EX-10.18.25 — Exhibit 10.18.25 to the Conseco, Inc. 1993 Form 10-K
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501 CONGRESSIONAL BOULEVARD
PARKING LOT EXPANSION
CONSTRUCTION AGREEMENT
THIS AGREEMENT, made and entered into by and between BANKERS
NATIONAL LIFE INSURANCE COMPANY, a Texas corporation (hereinafter referred to
as the "Owner"), and BROWNING CONSTRUCTION, INC., an Indiana corporation
(hereinafter referred to as the "Contractor"), WITNESSETH THAT:
WHEREAS, the Owner desires to design and construct a parking lot
expansion to the west of the existing parking lot at 501 Congressional
Boulevard, Carmel, Indiana, (the "Project").
WHEREAS, Schneider Engineering, as design engineer (the "Design
Engineer"), heretofore has completed preliminary plans and requirements based
upon which it has begun to develop and prepare or cause to be prepared,
complete drawings, plans and specifications for the Project, subject to final
approval by the Owner and the Contractor, which approval will not unreasonably
be withheld (such approved drawings being hereinafter referred to as the
"Drawings" and such plans and specifications being hereinafter referred to as
the "Specification"); and
WHEREAS, with the Owner's approval, the Contractor has commenced
work on the Project, and has expended funds and incurred borrowing costs in
connection therewith prior to the date hereof;
WHEREAS, the Owner and the Contractor have agreed that the contract
price will be paid to the Contractor as construction progresses and costs are
incurred in the manner provided herein;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein contained and each act performed pursuant hereto, the parties
now enter into the following Agreement:
ARTICLE I
Contract Documents; Definitions
Section 1.1. Contract Documents and Amendments. The "Contract
Documents" shall mean and include (a) this Agreement, (b) the Drawings and
Specifications upon completion and approval thereof by the Owner and the
Contractor and (c) any duly authorized and executed Contract Change Orders
pursuant to Section 4.3, and any written interpretations of the Drawings and
Specifications signed by the Owner and by the Contractor. It is agreed that
the Contract Documents contain the entire agreement of the parties, that in the
event there is any conflict between the provisions of this Agreement and the
provisions of the Specifications and/or the Drawings, then the provisions of
this Agreement shall prevail; and that in the event there is any conflict
between the Specifications and the Drawings, the Drawings shall prevail. The
Contract Documents otherwise may be amended by written instruments signed by
the Owner and by the Contractor, and any provision or provisions of the
Contract Documents may be so amended without affecting the other provisions of
the Contract Documents.
Section 1.2. Architect and Engineer. The term "Design Engineer,"
as used in the Contract Documents, shall mean Schneider Engineering, and the
term "Engineer" shall mean the inspecting architect or engineer designated by
the Owner's construction lender (or by the Owner in the absence of such
designation by the lender) to make periodic inspections and certify as to the
progress of construction for purposes of progress payments to the Contractor.
Section 1.3. Subcontractor. The term "subcontractor," as used in
the Contract Documents, except where otherwise specified, means only those
persons, firms or corporations having a direct contract with the Contractor and
includes any person, firm or corporation who or which performs any part of the
Work (as defined herein), or leases equipment or tools (whether or not an
operator is provided by the lessor), or who furnishes material worked to a
special design according to the Drawings or Specifications, but does not
include any person, firm or corporation who or which merely furnishes material
not so worked to a special design (herein called a "supplier"), nor does it
include the Design Architect or Inspector.
Section 1.4. Completion Date. The term "Completion Date," as used
in the Contract Documents, means the date when the Work (as defined herein) is
certified by the Contractor as substantially completed in accordance with the
Contract Documents, subject to any additional or corrective work reasonably
required by the Engineer's final inspection pursuant to Section 4.6. For this
purpose, the parking lot shall be substantially complete and ready for use,
notwithstanding any minor or insubstantial details of construction, that remain
to be done, so long as (a) ready access to the Project, are available to the
Owner, all utilities to be provided to the Project are installed and in working
order (subject to minor adjustments and to the Owner's responsibilities
regarding utilities as provided in Section 5.4. For the purposes of the
Agreement, there will be a "Completion Date" for the parking lot.
Section 1.5. Day and Working Day. As used in the Contract
Documents, the term "day" shall mean a calendar day of twenty-four (24) hours
beginning at 12:00 midnight, and the term "working day" shall mean each
calendar day except a Saturday, Sunday or legal holiday.
ARTICLE II
Scope of the Work
Section 2.1. The Work. The term "Work" as used in the Contract
Documents shall mean the Contractor shall furnish all of the labor,
supervision, materials, supplies and equipment and perform all labor and other
work shown on, and in accordance with the Drawings and Specifications as
finally approved by the Owner and Contractor.
Section 2.2. Time of Completion. In the absence of circumstances
beyond its control, the Contractor agrees to complete the Work prior to
September 1, 1993 for the parking lot, except as such period to complete the
Work may be extended pursuant to the provisions of Sections 4.2, 4.3 or 4.5 of
this Agreement.
ARTICLE III
Contract Price and Payment
Section 3.1. Contract Price. The Owner agrees to pay the
Contractor for the performance of this Agreement cost plus twelve eight five
percent (12.85%) for the Project, including all of the Work, as the contract
price for the parking lot subject to additions and deductions by Contract
Change Order pursuant to Section 4.3.
Section 3.2. Method of Payment. The Owner hereby agrees to pay
to the Contractor the Contract Price in the following manner:
(a) Initial Payment. Upon execution and delivery of this
Agreement, the owner shall pay to the Contractor an initial payment
in an amount equal to the Contractor's construction costs incurred
through July 31, 1993, less any retainage withheld from the
Contractor and subcontractors as hereinafter provided, plus (i)
interest costs incurred by the Contractor (or affiliate) for funds
borrowed in order to fund such costs incurred prior to the date of
the initial payment, as certified by the Contractor, and (ii) the
earned portion of the Contractor's overhead and fee allocable to
such Work, determined as hereinafter described.
(b) Progress Payments.
(i) For all work except as identified in clause (ii) of this
paragraph, (b)after the initial payment, the Contractor shall make
a monthly request for payment by the Owner, for construction costs
incurred for work during the preceding month, plus the earned
portion of the Contractor's overhead and fee allocable to such Work,
less any retainage withheld from the Contractor and Subcontractors
as hereinafter provided. In no event shall the total of all such
progress payments under this clause (i) of this paragraph (b) at any
time, when added to the initial payment and any retainage then held,
exceed the agreed total Contract Price, plus any additions or less
any deletions for Contract Change Orders; and
(ii) Contractor shall make a monthly request for payment equal to
the cost of work in place as of the end of the preceding month, plus
an amount equal to 12.85% of such costs for overhead and profit
minus retainage as per 3.2 (iii). Each request for payment shall be
submitted at least five (5) business days before the date payment is
desired, and payments shall, insofar as possible, be scheduled for
the 28th day of each calendar month. Owner agrees to make payments
no later than six (6) business days after receipt of the
Contractor's request. Contractor shall provide copies of invoices
or such other cost backup as the Owner may reasonably request from
time to time as follows: (a) payment request on form acceptable to
Owner, (b) copies of invoices, (c) affidavits of lien waivers from
all subcontractors and supplies covering prior disbursements.
(c) All payments by the Owner are subject to the following:
(i) Construction Costs. As used herein, the term "construction
costs" means and includes all costs and expenses incurred by the
Contractor in the performance of the Work, including but not limited
to amounts payable under subcontracts and other costs for labor,
materials, equipment and fixtures, including sales taxes and freight
and transportation charges, costs for architectural and engineering
work, expenses for workers' compensation insurance and other
insurance coverage required by the terms of this Agreement, rental
costs of equipment used on the Work, utility costs and fees, and
charges or other amounts payable for permits, licenses or approvals
necessary to perform the Work.
(ii) Overhead and Fee. The Contractor's overhead and fee is twelve
eight five percent (12.85%), and shall be deemed earned for purposes
of payment as follows:
(1) The overhead and fee portion of the Contract price for the
parking lot shall be deemed earned in proportion to costs incurred
for which payment is requested from time to time, in increments
equal to 12.85% minus retainage as in (iii) below, of the costs so
incurred; the full balance shall be deemed earned on the Completion
Date.
(iii) Retainage. (1) Retainage shall be withheld only as to
amounts payable Contractor and Subcontractors and there shall be no
retainage as to suppliers or other amounts payable to the
Contractor; (2) retainage as to Subcontractors shall be 10% of
amounts invoiced until such Subcontractor's work is 50% completed,
and thereafter, unless the Contractor, in its discretion, elects to
continue the 10% retainage as to one or more Subcontractors, no
additional retainage shall be withheld; (3) retainage as to each
Subcontractor will be released to the Contractor for payment to the
Subcontractor sixty (60) days after 100% completion of the
Subcontractor's work.
(iv) Inspection Reports. The Owner may require, prior to payment,
receipt of a report from the Engineer, dated not more than five (5)
days prior to the requested disbursement, setting forth a breakdown
of the Work completed to date and stating that he has inspected the
construction and that all construction to the date of the
certificate is in accordance with the Drawings and Specifications.
It is the Owner's responsibility to schedule such inspections to
ensure that the report, if requested, is received in a timely manner
so as not to otherwise affect timing of payments.
(b) Final Payment. Final payment to the Contractor of the entire
unpaid balance of the Contract Price for the parking lot including
but not limited to any retainage withheld and the full balance of
the Contractor's overhead and fee and any profit to the Contractor,
shall be paid within thirty (30) days after the Completion Date for
such parking lot. The Owner shall receive prior to such payment;
(i) delivery of a release or waiver of liens signed by the
Contractor and all Subcontractors (or a title insurance policy
insuring over any such lien or possible lien), and (ii) the Owner
shall be entitled to withhold an amount reasonably estimated by the
Engineer to complete or correct for items of Work identified upon
final inspection pursuant to Section 4.6, until completion or
correction of such item, and (iii) as built drawings, maintenance
and operation manuals.
ARTICLE IV
Other General Conditions
Section 4.1. Representations and Warranties of Contractor. The
Contractor represents and warrants that:
(a) The Contractor has the facilities and personnel to perform the
Work, and the Work shall be done in good and workmanlike manner,
free from defects and in conformity with the Contract Documents, and
all applicable laws, ordinances, rules and regulations of all
governmental authorities having jurisdiction of the subject matter.
(b) The Contractor shall supervise and direct the Work, using its
best skill and attention. The Contractor shall be solely
responsible for all construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the
Work;
(c) All materials and equipment incorporated in the Work will be
new, unless otherwise specified in the Plans and Specifications;
(d) The Contractor shall provide and pay (and provided the Owner
makes all payments due to the Contractor as provided in Article III,
Sections 3.2 (b) (ii) and 3.2 (d), shall hold the Owner harmless
from claims for) all Subcontractors and Suppliers, and other amounts
payable for all labor, materials , equipment, tools, construction
equipment and machinery, water, heat, utilities, transportation and
other facilities and services necessary for proper completion of the
Work and shall remove all construction equipment, tools and
machinery from the Project site promptly upon completion of the
Work.
(e) The Contractor shall inform the Owner if it becomes necessary
to make any arrangements with public utilities or municipal
authorities for removal or replacement on the Project site of any
poles, lines, hydrants, pipes or other items required to be removed
or replaced in order to complete the Work, provided that if any work
or expense will be required to connection therewith, the same shall
be considered an addition to the Work requiring a Contract Change
Order. The Contractor knows of no such requirement as of the date
of this Contract.
(f) The Contractor shall secure all permits, licenses and
approvals necessary for execution of the Work;
(g) The Contractor at all times shall keep the Project site free
from excessive accumulation of waste materials and rubbish caused by
its operations. At the completion of the Work, the Contractor shall
remove all waste materials and rubbish from and about the Project
site, as well as his tools, construction equipment, machinery and
surplus materials, and leave the Work in "broom clean" or equivalent
condition except as otherwise specified.
Section 4.2. Extension of Time of Completion. The contractor
shall be entitled to extensions of time for completion of the Work in the event
of delays caused by labor disputes, fire, unusual delay in transportation,
unavoidable casualties or other causes or conditions beyond the Contractor's
control. Any such extension of time shall be for the actual number of working
days lost by reason of the occurrence or condition, as determined and certified
by the Contractor, unless the Engineer reasonably determines that a longer or
shorter extension of time should apply.
Section 4.3. Change in the Work. The Owner and the Contractor,
without invalidating the Contract Documents or the agreement of the parties as
represented thereby, but subject to the limiting provisions of Section 1.1, may
make changes within the general scope of the Contract Documents by altering,
adding to or deducting from the Work. No change in the Work shall be
authorized except by a "Contract Change Order," signed by the Owner and the
Contractor, and approved by the Owner's construction lender, if required. All
extra work and changes in the Work shall be performed under the conditions of
the Contract Documents.
Section 4.4. Owner's Right to Terminate. In the event the
Contractor violates any material provision of the Contract Documents, the Owner
may, after giving thirty (30) days written notice to the Contractor setting
forth the violation, if the violation is not corrected by the expiration of
such thirty (30) day period, at the Owner's option, either (a) make good the
deficiencies and deduct the cost thereof from any payment then or thereafter
due the Contractor, and (b) terminate this Agreement, take possession of all
materials and the Contractor's equipment, tools and appliances and finish the
Work by any reasonable means, or (c) specifically enforce this Agreement
against the Contractor and force the Contractor to complete the Work for the
Fixed Contract Price in accordance with the provisions of this Agreement. If
the Owner exercises such option to terminate this Agreement, and the unpaid
balance of the Contract Price exceeds the reasonable cost to the Owner of
completing the Work, such excess shall be paid to the Contractor in the manner
provided in Section 3.2, but, if such cost exceeds such unpaid balance, then
the Contractor shall pay the entire amount of the difference to the Owner.
Section 4.5. Contractor's Right to Terminate. Should the
Owner fail to pay the Contractor any payment when due, then the Contractor, at
the Contractor's option, after giving seven (7) days written notice to the
Owner, if payment is not made within seven (7) days of receipt by the Owner of
such notice may stop performing the work until payment is received. Should the
Work be stopped by any public authority for a period of thirty (30) days or
more through no fault of the Contractor, or should the Work be stopped through
act of neglect of the Owner or should the Owner fail to pay the Contractor
within said seven (7) day period, then, at the Contractor's option, at any time
before the condition is corrected or cured, following thirty (30) days written
notice to the Owner, with a copy to the Owner's construction lender, if the
condition is not cured by the end of such thirty (30) day period, and if the
Contractor is not in default under the Agreement, the Contractor amy terminate
this Agreement and retain or recover from the Owner so much of the Contract
Price as represents payment in full for all of the Work completed, less
payments previously received, including all of the Contractor's costs of the
construction as set forth on the Cost Breakdown, plus a pro rata portion of the
Contractor's total overhead and profit as provided for in the Cost Breakdown,
based upon the proportion of the Work completed. In any event, the delay
caused by the existence of any such condition shall automatically extend the
time during which the Work is to be completed pursuant to Section 2.2 by an
amount of time equal to two (2) days for each of the first thirty (30 days of
existence of any such condition, and one day for each day of existence of the
condition in excess of thirty (30) days.
Section 4.6. Final Inspection. The Engineer's final inspection
as regards to the parking lot shall be made within fifteen (15) days after the
Contractor delivers to the Owner its written certification that the Work has
been completed. The making and acceptance of the final payment shall not
constitute a waiver of any claims by the Owner as to any matters reasonably
required by the Engineer to be completed or corrected by the Contractor after
the Completion Date.
Section 4.7. Warranty and Correction of Work. The Contractor
guarantees to the Owner that all labor and materials incorporated in the Work
shall be free from defects for a period of one year from the Completion Date.
The Contractor, at its expense, shall correct any Work that fails to conform
to the requirements of the Contract Documents where such failure to conform
appears during the progress of the Work, and shall remedy any defects in the
Work which appear within the applicable warranty period. The warranty under
this Section 4.7 applies to the entire Work, (a) whether done by Contractor,
any subcontractor (whether or not under a direct contract with the Contractor),
or any employee of any of them or any other person performing any of the Work,
or (b) any electrical or other finished manufactured equipment or product,
except that the Contractor hereby assigns to the Owner the warranty, if any,
of the manufacturer and/or supplier of any such equipment or product, and
warrants (for one year as set forth above) that such equipment and products
shall be properly installed and connected in accordance with the Drawings and
Specifications, and any manufacturer's instructions.
Section 4.8. Inspections. The Owner, its construction lender,
prospective tenants, and their authorized representatives, including the
Engineer, shall, at all reasonable times, have the right of access to the
Project and Work for the purpose of inspection. The Owner shall have the right
to reject materials and workmanship which the Owner reasonably determines to
be defective, and the Contractor, within a reasonable time after the receipt
of written notice from the Owner of such rejection, take such reasonable steps
as shall be necessary to correct or remove defective materials or workmanship
without charge or cost to the Owner. The Engineer will make periodic visits
to the site to familiarize himself generally with the progress and quality of
the Work, and to determine in general if the Work is proceeding in accordance
with the Plans and Specifications pursuant to Section 3.2. If the Owner
becomes aware of any defect in the Work, through the Engineer or otherwise, it
shall give notice of such defect to the Contractor promptly after discovery
thereof. If the Owner fails to give such notice of a defect known to it, such
defect may not serve as a ground for termination by the Owner pursuant to
Section 4.4, unless the Contractor independently knew of such defect at or
prior to the time of the Owner's discovery thereof.
ARTICLE V
The Owner's Responsibilities
Section 5.1. Prompt Decisions. The Owner, through a designated
authorized representative, shall examine Contract Documents and other documents
submitted by the Contractor from time to time, and shall render decisions
pertaining thereto and furnish requested information and approvals promptly and
expeditiously to avoid unreasonable delay in the completion of Plans and
Specifications or in the progress of the Work of the Contractor.
Section 5.2. Notices. The Owner shall give prompt written notice
to the Contractor of any defect in the Work or other nonconformance with the
Contract Documents that may in any manner come to the Owner's attention. The
Owner shall provide to the Contractor promptly, copies of any notice or other
communication concerning the project received directly by the Owner from the
Design Architect, the Engineer, any subcontractor or other person performing
work on the project or any governmental authority (unless the Owner has
knowledge that the Contractor already has received a copy thereof).
Section 5.3 Payments. The Owner shall provide for the timely
payment of all amounts due as anticipated by this Agreement, as and when
payable as construction progresses and Work is completed and inspected, in
accordance with the terms of this Agreement. The Owner shall schedule any
required inspections to occur within the time periods provided for herein so
as not to delay the scheduled payments to the Contractor.
Section 5.4 Utilities/Governmental Fees. The Owner is solely
responsible for any and all necessary approvals, consents, permits, deposits,
assessments, connection or availability fees and other charges of any kind
levied or required to be obtained, made or paid in order to allow, permit or
otherwise obtain the right and authority to connect the buildings and
improvements to the facilities of, and/or acquire the services of, any public
utility or governmental agency, sewer, telephone and electric service. The
Contractor shall cooperate with and assist the Owner in connection with such
approvals and other matters, and shall notify the Owner in advance of the date
by which any such matter must be completed in order not to cause any delay in
the completion or availability of the Project.
ARTICLE VI
Indemnity and Insurance
Section 6.1. Indemnity. The Contractor shall indemnify and save
the Owner harmless from and against any and all liability for any bodily
injury, sickness, disease or death of any person or persons, or for damage to
or destruction of tangible property (other than the Work itself) including the
loss of use resulting therefrom, arising out of or connected with the
performance of the Work, provided such liability or damage is caused in whole
or in part by any negligent act or omission of the Contractor, any
subcontractor (whether or not under a direct contract with the Contractor), or
anyone directly or indirectly employed by any of them or any one for whose acts
any of them may be liable, and from all cost, expenses and liabilities,
including but not limited to reasonable attorney's fees incurred by the Owner
in connection therewith; provided, however, that the provisions of this Section
5.1 shall not give to any person, firm or corporation not a party to this
Agreement any right, claim, action or cause of action which any such person,
firm or corporation would not otherwise have.
Section 6.2. Contractor's Liability Insurance. Without
limitation upon the Contractor's liability under the indemnity agreement in
Section 5.1, the Contractor shall, at its own expense, obtain and maintain
insurance that will protect the Contractor, the Owner and such other interested
persons as the Owner may reasonably request from time to time, from all claims
under worker's compensation acts and other employees benefit acts claims for
damages because of bodily injury, including death, and from claims for damages
to property which may arise out of or result from the Contractor's operations
under this Agreement, including products and completed operations coverage for
a period of two (2) years following the Completion Date and including
operations by any subcontractor (whether or not under a direct contract with
the Contractor) or anyone directly or indirectly employed at any of them. The
coverages and amounts below are indicated as minimum requirements, exclusive
of any additional excess umbrella liability coverage that may be reasonably
required by the Owner. The Contractor may determine to carry other coverages
and/or higher limits.
Minimum Coverages Required Minimum Amount of Liability
-------------------------- ---------------------------
Workers'Compensation Applicable Statutory Limits
Insurance including
employer's liability
Contractor's combined $1,000,000
protective bodily injury
and property damage
liability insurance
All policies shall contain a provision that the coverages will not be canceled
or changed without thirty (30) days prior written notice to the Owner and to
the Owner's construction lender. If, at any time during the performance of the
Work, the Contractor shall fail to maintain the minimum insurance coverages set
forth above, the Owner may, at its option, procure and maintain such insurance
in the name of the Contractor, and the Contractor shall pay the cost thereof
and furnish all information and documents necessary to make effective and
maintain such insurance.
Section 6.3. Owner's Liability Insurance. The Owner may obtain,
at its option, additional or other insurance to protect it from contingent
liability to others arising from the Contractor's operations under this
Agreement.
Section 6.4. Builder's Risk Insurance. The Contractor shall
purchase and maintain "all risk" builder's risk and fire insurance, with
extended coverage, upon the Work and the Project on which the Work is to be
performed, to approximately one hundred percent (100%) of the insurable value
from time to time thereof, including items of labor and materials to be
incorporated therein whether in or adjacent to the building insured. Loss
under the insurance, if any, will be adjustable with and payable to the Owner
(or its designee) as trustee for the Owner and the Contractor as their
interests may appear. The Owner and the Contractor hereby waive all rights,
each against the other, for damages caused by fire or extended coverage perils
or other risks covered by insurance, except such rights as they may have to the
proceeds of insurance held by the Owner as trustee. The Contractor shall be
solely responsible for any coverage on its tools or equipment, or those of its
employees, agents or subcontractors, whether owned or rented, and for any other
materials which may temporarily be located on the Project premises.
Section 6.5. Blanket and Umbrella Policies. Any insurance
required to be provided by Contractor pursuant to the Agreement may be provided
by blanket property insurance or umbrella liability insurance covering the
Project and other locations or operations of Contractor or its affiliates,
provided such blanket or umbrella insurance complies with all of the other
requirements of the Agreement with respect to the insurance involved.
Section 6.6. Insurance Coverage and Notice. All policies shall
contain a provision that the coverages will not be canceled or changed without
thirty (30) days prior written notice to the Owner. Upon request, the
Contractor shall provide to the Owner a certificate showing the relevant
insurance coverages and amounts in force respecting the Project. if, at any
time during the performance of the Work, the Contractor shall fail to maintain
the minimum insurance coverages set forth above, the Owner may, at its option,
procure and maintain such insurance in the name of the Contractor, and the
Contractor shall pay the cost thereof and furnish all information and documents
necessary to make effective and maintain such insurance.
ARTICLE VII
Miscellaneous
Section 7.1. Bonds. If required by the Owner, the Contractor
shall require one or more subcontractors performing labor under subcontract for
amounts in excess of $100,000 to furnish dual-obligee payment and performance
bonds, in form and substance acceptable to the Owner, covering themselves and
their subcontractors. The Contract Price shall be increased in an amount equal
to the reasonable cost of any such bonds. For purposes of this paragraph, the
Contractor shall provide to Owner, on request, a list of the Subcontractors and
their respective contract amounts.
Section 7.2. Assignment. This Agreement may not be assigned or
otherwise transferred by either party hereto without the written consent of the
other party except for any assignment to an entity owned or controlled by such
party. No such assignment shall relieve either party of its obligations unless
otherwise agreed by the other party in writing at the time.
Section 7.3. Nonwaiver; Other Remedies. The failure to enforce
any provision of the Contract Documents shall not serve to invalidate any such
provision or any other provision of the Contract Documents and shall not serve
as a bar or limit to subsequent enforcement of any such provision. No remedy
available to either party under this Agreement is intended to be exclusive of
any other remedy. Each remedy shall be cumulative and shall be in addition to
any other remedy given hereunder or existing by statute, at law or in equity.
Section 7.4. Notices. Any notices required to be given under this
Agreement shall be mailed, certified mail, return receipt requested. Any
notice to be served upon the Owner shall be addressed to:
Thomas G. Mills
Vice President of Operations
Bankers National Life Insurance Company
560 College Drive
Carmel, Indiana 46032
Any notice to be served upon the Contractor shall be addressed to:
Browning Construction, Inc.
Suite 400, Tower Two
Fidelity Plaza
11350 North Meridian Street
Carmel, Indiana 46032
Attention: Richard J. Pollak
Section 7.5. Binding on Successors. This Agreement shall be
binding upon, and inure to the benefit of, the parties, their successors,
heirs, legal representatives, legatees and assigns.
Section 7.6. Descriptive Headings. The descriptive headings
contained herein were formulated, used and inserted for convenience only and
shall not affect the meaning or construction of the provisions of this
Agreement.
Section 7.7. Governing Law. This Agreement, executed and to be
performed in the State of Indiana, shall be governed by the law of the State
of Indiana.
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IN WITNESS THEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers on the 29th day of July, 1993.
"OWNER"
BANKERS NATIONAL LIFE INSURANCE CO.
By: /s/ THOMAS G. MILLS
--------------------
Thomas G. Mills
Vice President of Operations
"CONTRACTOR"
BROWNING CONSTRUCTION, INC.
By: /s/ RICHARD J. POLLAK
---------------------
Richard J. Pollak
President
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 3/31/94 | | | | | | | 10-Q |
| For Period End: | | 12/31/93 | | | | | | | 11-K |
| | 9/1/93 | | 2 |
| | 7/31/93 | | 2 |
| List all Filings |
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