SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF
SMALL BUSINESS ISSUERS
Pursuant to Section 12(b) or (g) of the Securities Exchange Act of 1934
Swifty Carwash & Quik-Lube, Inc.
(Exact name of registrant as specified in its charter)
Florida 65-078-3722
(State or other jurisdiction of (I.R.S. Employer Identi-
incorporation or organization) fication No.)
17521 Crawley Road, Odessa, Florida 33556
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (813) 926-1603
Securities to be registered pursuant to
Section 12(b) of the Act:
n.a.
Securities to be registered pursuant to
Section 12(g) of the Act:
(Title of class)
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common stock, $.0001 par value
Class A Common Stock Warrants, $.01 par value
<PAGE>
Part I
Alternative 2
Item 6. Description of the Business.
Swifty Carwash is a Florida Corporation formed on September 23, 1997. Steele
Holdings, Inc. was a Florida Corporation having Rachel Steele as its sole
shareholder. On January 20, 1998, the Company and Steele Holdings, Inc., were
reorganized with all the assets of Steele Holdings being transferred into Swifty
Carwash & Quik-Lube, Inc. (the "Company"). Shares of Steele Holdings were
exchanged on a one to 1,000 basis. Steele Holdings had 6,000 shares of common
stock outstanding at the time of its reorganization with the Company.
The Company was formed to develop, own and operate a chain of full-service car
washes and express oil change centers (the "Centers"). The Company's founders
plan to capitalize on various trends that they believe will create demand for
the auto-related products and services to be provided by the Centers. One such
trend is the steady reduction in the number of gas stations providing routine
automobile maintenance such as oil changes. Thousands of the traditional,
full-service stations have closed and many others have been converted to
self-service stations offering no maintenance services. A second trend is the
increased demand for convenience created by Americans' busier lifestyles. A
majority of U.S. households now have two working spouses or a single working
adult. Work and family responsibilities have both reduced spare time and
increased the dependence on automobile transportation. As a result, fewer and
fewer Americans are taking the time to change their own oil and/or wash their
cars at home. Several companies have attempted to exploit these trends by
opening stand-alone car washes or quick-lube centers. The Company believes that
a market niche exists for the combination of these two services at one
establishment. Accordingly, the Company anticipates that its full service
Centers will be designed to fill this niche by offering a car wash, oil change
and fluid check within a 15 to 20 minute period, all without an appointment.
The Company anticipates that each Center will contain a full service carwash,
car detailing station, oil change and lube bays and a retail area. The Centers
will be designed so that cars can drive through the oil and lube bays and then
drive through the carwash. The oil change and lube areas will be located in two
or three bays designed and equipped to provide oil and filter changes,
lubrication and replacement of most engine fluids. The service bays will each
feature a basement in order to eliminate the need for hydraulic lifts and allow
more than one technician to work on the car simultaneously. To increase
efficiency, one technician will work from the basement and another technician
will work at ground level. In addition to changing the oil, the technicians will
also lubricate the chassis, check and fill the transmission, brakes,
differential, power steering, window washer and battery fluids, check the air
filter and inflate the tires to the proper pressure. The Company plans to have
each Center use top-quality replacement motor oils, lubricants and filters as
part of its standard oil change. The Centers will be designed and stocked to
service almost every kind of vehicle, including foreign and older vehicles.
Certain parts and supplies offered by the Company will be sold on a consignment
basis, thereby reducing the amount of capital required for inventory.
The Company anticipates that each Center will be equipped with a 100-foot fully
automatic conveyer featuring touch free equipment. The equipment will be fully
computerized and will feature the latest technology in automated carwash
equipment. Each car will be vacuumed prior to entering the wash and window
interiors will be manually cleaned after the car exits the wash. Customers will
also be given the opportunity to choose from a variety of optional services such
as tire and interior treatment. The Company anticipates that each Center will
also feature a separate station providing complete auto detailing on an
expedited basis.
The Company plans for each Center to feature a customer lounge as well as a
snack bar with coffee, espresso and related items. The lounge will include a
retail area which will display a complete line of novelty and unique
accessories. From windows located along one wall of the retail area, customers
will be able to watch their cars as they are being washed.
The Company plans to use a computerized point of sale computer system in each
Center, enabling the Company's management to identify strengths and weaknesses
in each Center's operation. The computer system will also track customer data,
sales and employee information. Each Center's computer system will eventually be
linked to the Company's home office so that results can be analyzed by the
Company's management on a daily basis.
In addition to the Company's full-service Centers, the Company may in the future
develop one or more self-service Centers. The self-service Centers would be
placed in locations that are not large enough to otherwise be usable for a
full-service Center. Self-service Centers would probably consist of a series of
four to five bays in which customers can wash their own cars using a devise that
emits soap, pressurized water and wax. In addition, one bay may be dedicated to
a touchless carwashing machine. The Company has not determined when it may
develop self-service Centers, if ever, and accordingly, has not provided for the
development of self-service Centers in its business plans described herein.
Unless expressly stated otherwise, the use of the term "Center" throughout this
Registration Statement means a full-service Center, not a self-service Center.
The Company is currently constructing its prototype Center in Palm Harbor
Florida on real property owned by the Company (hereinafter the "Prototype
Center"). The approximately one (1) acre site was purchased for $312,500. The
purchase contract with Steele Holdings is attached. The land was transferred to
the Company along with Steele Holdings' other assets in its reorganization. The
Company has entered into a contract in the amount of $15,500 with Oliveri
Architects for the design of the Prototype Center. The design contract is
attached. Equipment for the Prototype Center in the amount of $271,000.10 has
been purchased from O'Hanrahan Consultant's, Inc. The contract, which is
attached, provides for assistance with construction of the carwash and
installation and operation of the equipment. The first Center is 85% constructed
and is scheduled to open on approximately December 1, 1998. Letters of intent
have been issued regarding acquisition of other Center sites but none have been
agreed upon as of November 20, 1998.
The Company has spent approximately $200 on demographic surveys of the area
surrounding the first Center in Palm Harbor, Florida. No other funds have been
spent on product or service research by the Company.
The Company currently has no employees. However, it has agreements for services
with Donald Hughes, Raymond Lipsch and Stanley Rabushka all of whom are officers
or founding shareholders in the Company. Copies of each of these agreements are
described below and attached hereto as exhibits.
The Company currently anticipates that each Center will have approximately 15-20
full and part-time employees, consisting of one manager, two assistant mangers,
five to seven clerical and sales personnel and seven to ten employees in the
Center's carwash and oil change operations.
The Company is in the development stage of conducting its business. Its
operations are subject to various risks inherent in any start-up enterprise with
no operating history. New ventures, such as the Company, frequently encounter
unforeseen problems which often require more time and capital than budgeted, and
are subject to all of the risks inherent in the organization of a new business
venture. As a result of its developmental nature and its limited history, the
Company may be expected, at least initially, to continue to sustain operating
losses.
The officers and directors of the Company have no experience operating a
business of this type. The Company is working with consultants who have
experience in the industry: John Oster, and Edward O'Hanrahan. O'Hanrahan's
contract is discussed below. John Oster will be given 10,000 shares of the
Company's restricted common stock in exchange for consulting regarding carwash
start-up and operation for a period of one year. His contract is attached
hereto. There are other carwash companies and car lube companies with more
operating experience and financial resources than the Company. Currently, no
revenue has been received by the Company from operations. There can be no
assurance that the Centers will be profitable.
The Company's business plan for the twelve months following registration
consists of completing the development of its first six Centers and the standard
operating policies and procedures that will be applicable to all Centers. The
Company anticipates that as the fifth and sixth Centers are being developed, the
Company will also open a centralized administrative office.
The Company anticipates that it will be able to complete the first Center
without the funds from its private offering which was completed in October 1998.
The second Center will require approximately all of the funds from the Company's
private offering. Funds raised from public sales of securities will be used to
complete the remaining Centers.
Item 7. Description of the Property.
The Prototype Center is currently under development and the Company anticipates
that it will commence operations on approximately December 1. 1998. The first
Center will be located in Palm Harbor, Florida, on U.S. Highway 19. The Company
estimates that the Prototype Center will cost approximately $1.2 million dollars
and the remaining Centers should cost between $800,000 and $900,000 to
construct. The subject property containing the Prototype Center consists of
approximately one (1) acre and has received approval from Pinellas County for
site construction. A construction contract was entered into between the Company
and Brandon Construction Company for the Prototype Center construction with the
amount of $525,486 being paid to Brandon. The Company and Rachel Steele,
President of the Company, personally, entered into a promissory note with
People's Bank in the amount of $525,000 to cover the construction of the
carwash. The note has a maturity date of May 1, 2014 at a rate of one (1%)
percent in excess of the Prime Rate. Said note is secured by a mortgage on the
land owned in Pinellas County for the construction of the Prototype Center. A
copy of the note is attached. Sites for the other Centers have not been
finalized.
Item 8. Directors, Executive Officers and Significant Employees.
The following is a brief description of the educational and business experience
of each director, executive officer and key employees of the Company:
Rachel L. Steele, age 30, is a Director as well as President and Secretary of
the Company. Ms. Steele is a graduate of the University of Southern Florida with
a degree in Business Administration. Since graduating from college in May of
1994, Ms. Steele has spent the majority of her time managing her own investment
portfolio. In addition, Ms. Steele has from time to time provided certain
financial consulting services to individuals and corporations.
Raymond Lipsch, age 59, is a Director, Chief Executive Officer, Chief Financial
Officer and Treasurer of the Company. Mr. Lipsch attended Northwestern
University at Illinois. Mr. Lipsch has over 30 years of entrepreneurial and
management experience, specializing in the development of new companies,
developing new divisions and re-energizing troubled ones. Since 1992, Mr. Lipsch
has been engaged in the sales and marketing of insurance products, first as an
independent agent, then as a sales representative for American Express. Since
May 1994, Mr. Lipsch has been employed as a sales representative for Av-Med.
Donald C. Hughes, age 44, is a Director as well as a Vice President of the
Company. Mr. Hughes graduated from the University of Florida in 1977 with a
degree in Building Construction. In 1985, Mr. Hughes formed his own construction
company, Donald C. Hughes General Contractor, Inc., which has been in operation
for thirteen years and which engages primarily in the development and
construction of single family residences and small commercial buildings.
Stanley D. Rabushka, age 64, has been employed by the Company as a business
advisor and consultant since operations began in September 1997. Mr. Rabushka
graduated from Washington University in 1956 and 1958 with degrees of Bachelor
of Science in Engineering Physics and Master of Arts in Mathematics. After a
career involving scientific and engineering work for Emerson Electric and the
United States Government, among others, Mr. Rabushka served for more than 15
years as Vice President and General Manager for Louis Cap Company, a leading
manufacturer of men's headwear. Mr. Rabushka earned his Juris Doctoris degree
from Saint Louis University in 1977 and has been a practicing attorney since
that time with offices in St. Louis, Missouri. Mr. Rabushka, however, will not
provide legal service for the Company, as the Company has retained other counsel
for that purpose.
No voting arrangements exist and the above persons were selected pursuant to
provisions in Article IV of the Company's By-Laws, all holding office for a
period of one year or until their successors are elected and qualified. None of
the officers or directors of the Company have been involved in legal proceedings
during the past five years which are material to an evaluation of the ability or
integrity of any director, person nominated to become a director, or executive
officer of the issuer, including any state or Federal criminal and bankruptcy
proceedings.
Item 9. Remuneration of Directors and Officers.
Name of Individual Capacities in which Aggregate Renumeration
Was received
Rachel Steele President $ 96,166
Raymond Lipsch Consultant $ 72,500
Donald Hughes Consultant $210,000
None of the Company's officers currently receive a salary from the Company, and
all but Ms. Steele are engaged in other enterprises on a full-time basis. Rachel
Steele has received advances for services totaling $96,166 which will be repaid
at a rate of eight (8%) percent interest with payments of $5,000 payable every
three months beginning November 15th, 1998. A note for this advance is attached
as an exhibit. Mr. Lipsch has received compensation for consulting services
totaling $72,500 pursuant to his agreement for consulting services of not less
then 250 hours per year which is also attached hereto as an exhibit. Don Hughes
as president of Don Hughes General Contractor, Inc.,who is also a Director and
Vice-President of Swifty, has entered into a contract with the Company to
provide consulting services in construction and real estate for which a sum of
$210,000 was deposited for his use. Mr. Hughes' contract also attached hereto
provides that his Corporation will provide construction services for the Centers
when agreeable to both parties.
The Company anticipates that Ms. Steele will begin receiving a salary at some
point in the near future, the amount of which has not yet been determined. In
addition, the remaining officers may be paid a salary at some point in the
future as their responsibilities with the Company increase. At this time, the
Company does not plan on paying its Board of Directors in return for their
services as Directors.
Item 10. Security Ownership of Management and Certain Security Holders.
None of the officers and directors has received a salary during the past twelve
months. There are no officer or director groups. The Offering referred to below
is the Company's private offering of securities which was completed in October
of 1998.
Title Name and Amount owned Amt owned Percent
of Address before the After of
Class of Owner Offering Offering Class
Common ....... Rachel L. Steele 5,940,000 5,940,000 71%
Stock
Common ....... Stanley and Arlene 1,400,000 1,400,000 17%
Stock ........ Rabushka
Common ....... Raymond Lipsch 600,000 611,520 07%
Stock
Common ....... Donald Hughes 235,000 267,720 09%
Stock
Common
Stock ........ Total 8,175,000 8,219,240 99%
Warrants
Name of Title and amount Exercise Date
securities called for by of
Holder options, warrants or rights price Exercise
Donald Hughes Class A Common Stock 65,440 7.25 12/31/00
Raymond
Lipsch Class A Common Stock 23,040 7.25 12/31/00
Item 11. Interest of Management and Others in Certain Transactions.
Don Hughes' Consulting Agreement and Rachel Steele's Promissory Note are
discussed in Item 9 above and included in the Exhibits.
Item 12. Securities being Registered.
As of November 17, 1998, there are 8,394,120 shares and 318,240 Purchase
Warrants outstanding. 8,235,000 shares of the Company's stock are restricted
and may only be resold pursuant to Rule 144. 159,120 shares have been issued
pursuant to Rule 504 without restrictive legend.
Each share of issued and outstanding stock shall entitle the holder thereof to
fully participate in all shareholder meetings, to cast one vote on each matter
with respect to which shareholders have the right to vote, and to share ratably
in all dividends and other distributions declared and paid with respect to the
common stock, as well as in the net assets of the Company upon liquidation or
dissolution.
Each Warrant will entitle the holder to purchase one share of the Company's
common stock at an exercise price of $7.25 per share during the period ending
December 31, 2000. Each Warrant is redeemable at a price of $.01, subject to the
right of the holder to exercise his, her or its purchase rights thereunder
within a period of 30 days following issuance of the Company's written notice of
redemption.
Part II
Item 1. Market Price of and Dividends on the Registrant's Common Equity and
Other Shareholder Matters.
There is currently no public trading market for the Company's securities. This
is the Company's initial registration statement. The approximate number of
holders of record of each class of common equity securities is 28. No dividends
have been declared to date. The future dividend policy will depend upon the
Company's earnings, capital requirements, financial condition and other factors
considered relevant by the Company's Board of Directors. As of the date of
registration none of the outstanding warrants have been exercised.
Item 2. Legal Proceedings.
The Company is not a party to any pending legal proceedings.
Item 3. Changes in and Disagreements with Accountants.
The Company has not had any disagreement with its independent auditor on any
matter of accounting principles or practices or financial statement disclosure.
Item 4. Recent Sales of Unregistered Securities.
Prior to its private offering, the Company sold shares to its officers and
directors as set forth above. Additional sales to qualifying purchasers have
been made by the officers of the Company pursuant to Regulation D, Rule 504. The
Company did not pay any sales commissions or discounts to any person for the
cash sales for any shares and no public solicitation was used. No underwriter
has participated in the sales made to date. The total offering price was one
million dollars. Each Unit sold contained 800 shares of common stock and 1,600
Common Stock Purchase Warrants. The price for each Unit was $5,000. 198.9 Units
were sold for a total consideration of $994,500 was raised under the exempt
offering.
Item 5. Indemnification of Directors and Officers.
The Company has no provision for indemnification in its By-Laws. Section
607.0850 of the Florida Statutes authorizes the Company to indemnify any person
if he or she acted in good faith and in a manner he or she reasonably believed
to be in, or not opposed to, the best interests of the Company and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The termination of any proceeding by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in, or not
opposed to, the best interests of the Company or, with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her conduct
was unlawful. A Company shall have the power to indemnify any person against
expenses and amounts paid in settlement not exceeding, in the judgment of the
board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof.
<PAGE>
Part F/S
The Company's financial statements for the years ended December 31, 1997 have
been examined to the extent indicated in their reports by Pender Newkirk &
Company, independent certified public accountants and have been prepared in
accordance with generally accepted accounting principles and pursuant to
Regulation S-B as promulgated by the Securities Exchange Commission and are
included herein.
The Company's financial statements from January 1, 1998 through September 30,
1998 are unaudited and have been prepared in accordance with generally accepted
accounting principles.
Financial Statements
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Periods August 13, 1997 (Date of Inception)
through September 30, 1998
Independent Auditors' Report
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
Financial Statements
Periods August 13, 1997 (Date of Inception)
through September 30, 1998
Contents
Independent Auditors' Report on Financial Statements..........................
Financial Statements:
Balance Sheets............................................................
Statements of Operations..................................................
Statements of Changes in Stockholders' Equity.............................
Statements of Cash Flows..................................................
Notes to Financial Statements.............................................
<PAGE>
Independent Auditors' Report
Board of Directors
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Odessa, Florida
We have audited the accompanying balance sheet of Swifty Carwash & Quik-Lube,
Inc. (a development stage enterprise) as of December 31, 1997 and the related
statements of operations, changes in stockholders' equity, and cash flows for
the period then ended. These financial statements are the responsibility of the
management of Swifty Carwash & Quik-Lube, Inc. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
These standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Swifty Carwash & Quik-Lube,
Inc. as of December 31, 1997 and the results of its operations and its cash
flows for the period then ended in conformity with generally accepted accounting
principles.
Certified Public Accountants
Tampa, Florida
January 30, 1998, except for the first paragraph of Note 6, as to which the date
is February 18, 1998.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Balance Sheets
September 30, December 31,
1998 1997
(Unaudited)
Assets
Current assets:
Cash and cash equivalents $ 86,649 $ 357,419
Advances to stockholder 14,500
---------------------------------------
Total current assets 101,149 357,419
---------------------------------------
Building and equipment not
yet placed in service 956,411 18,393
---------------------------------------
Other assets:
Advances to stockholder,
net of current portion 84,666
Deposits 243,948 18,948
Offering costs 8,862 10,166
Organizational costs 749 749
---------------------------------------
Total other assets 338,225 29,863
---------------------------------------
$ 1,395,785 $ 405,675
=======================================
Liabilities and Stockholders'
Equity Current liabilities:
Accounts payable $ 287,099 $ 7,705
Income taxes payable 250
Current portion of note payable 2,161
---------------------------------------
Total current liabilities 289,260 7,955
---------------------------------------
Long-term liabilities:
Stock payable 10,000
Note payable, net of current portion 204,525
---------------------------------------
Total long-term liabilities 204,525 10,000
---------------------------------------
Stockholders' equity:
Common stock; $.0001 par value;
50,000,000 shares authorized;
8,350,920 and 6,000,000 shares
issued and outstanding at
September 30, 1998 (unaudited)
and December 31, 1997, respectively 835 600
Paid in capital 1,092,438 385,777
(Deficit) retained earnings
accumulated during
development stage (191,273) 1,343
---------------------------------------
Total stockholders' equity 902,000 387,720
---------------------------------------
$ 1,395,785 $ 405,675
=======================================
Read independent auditors' report. The accompanying notes are an integral part
of the financial statements.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Statements of Operations
<TABLE>
<CAPTION>
Period Period
Nine-Month August 13, 1997 August 13, 1997
Period Ended (Date of Inception) (Date of Inception)
September 30, through September 30, through December 31,
1998 1998 1997
________________________________________________________________
(Unaudited) (Unaudited)
<S> ................... <C> <C> <C>
Operating and start-up
expenses ...................................... $ 196,036 $ 198,891 $ 2,855
_________________________________________________________________
Loss from operations .............................. (196,036) (198,891) (2,855)
Interest income ................................... 6,512 10,960 4,448
Interest expense .................................. (3,092) (3,092)
_________________________________________________________________
(Loss) income before
income taxes .................................. (192,616) (191,023) 1,593
Income taxes ...................................... 250 250
__________________________________________________________________
Net (loss) income ................................. $ (192,616) $ (191,273) $ 1,343
==================================================================
Loss per common share ............................. $ (.02) $ (.03) $ 0.00
==================================================================
Weighted average common
shares outstanding ............................ 8,116,243 7,409,441 6,000,000
==================================================================
</TABLE>
Read independent auditors' report. The accompanying notes are an integral part
of the financial statements.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Statements of Changes in Stockholders' Equity
Periods August 13, 1997 (Date of Inception)
through September 30, 1998
<TABLE>
<CAPTION>
Retained Earnings
(Deficit)
Common Stock Paid In Accumulated During
Shares Amount Capital Development Stage
____________________________________________________________
<S> ....................................................... <C> <C> <C> <C>
Common stock issued for cash,
August 1997 ................................................. 6,000,000 $ 600 $ 149,400
Contributed capital for cash and
reimbursement of expenditures,
September 1997 ............................................. 236,377
Income for period ............................................... $ 1,343
_____________________________________________________________
Balance, December 31, 1997 ...................................... 6,000,000 600 385,777 1,343
Common stock issued January
1998 (unaudited) ............................................ 2,235,000 223 22,127
Common stock issued through Regulation D
Offering, net of offering costs of
$23,304, March 1998 through September
1998 (unaudited) ............................................ 115,920 12 684,534
Loss for period (unaudited) ...................................... (192,616)
______________________________________________________________
Balance, September 30, 1998
(unaudited) .................................................. 8,350,920 $ 835 $ 1,092,438 $(191,273)
==============================================================
</TABLE>
Read independent auditors' report. The accompanying notes are an integral part
of the financial statements.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Statements of Cash Flows
<TABLE>
<CAPTION>
Period Period
Nine-Month August 13, 1997 August 13, 1997
Period Ended (Date of Inception) (Date of Inception)
September 30, through September through December 31,
1998 30, 1998 1997
______________________________________________________
(Unaudited) (Unaudited)
<S> ............................................................ <C> <C> <C>
Operating activities
Net (loss) income .......................................... $ (192,616) $ (191,273) $ 1,343
______________________________________________________
Adjustments to reconcile net (loss)
income to net cash and cash
equivalents (used) provided by
operating activities:
Increase in accounts payable ........................ 36,500 36,500
Decrease in income taxes payable .................... (250) 250
_____________________________________________________
Total adjustments .......................................... 36,250 36,500 250
_____________________________________________________
Net cash (used) provided by operating
activities ............................................. (156,366) (154,773) 1,593
_____________________________________________________
Investing activities
Acquisition of building and equipment ...................... (695,124) (707,286) (6,162)
Advances to stockholder .................................... (99,166) (99,166)
Increase in deposits, offering costs,
and organizational costs ............................... (223,696) (245,644) (27,948)
____________________________________________________
Net cash used by investing activities ...................... (1,017,986) (1,052,096) (34,110)
____________________________________________________
Financing activities
Proceeds from issuance of notes payable .................... 206,686 206,686
Net proceeds from issuance of stock and
contribution of cash ................................... 706,896 1,086,832 379,936
(Increase) decrease in stock payable ....................... (10,000) 10,000
__________________________________________________
Net cash provided by financing activities .................. 903,582 1,293,518 389,936
__________________________________________________
Net (decrease) increase in cash and
cash equivalents ........................................... (270,770) 86,649 357,419
Cash and cash equivalents, beginning
of period .................................................. 357,419
__________________________________________________
Cash and cash equivalents, end of period ....................... $ 86,649 $ 86,649 $ 357,419
==================================================
</TABLE>
Read independent auditors' report. The accompanying notes are an integral part
of the financial statements.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Statements of Cash Flows
Periods August 13, 1997 (Date of Inception)
through September 30, 1998
Supplemental disclosures of noncash investing and financing activities:
During the period August 13, 1997 (date of inception) through December 31,
1997, the Company recorded offering costs, organization costs, project
costs, and equipment totaling $6,441 as contributed capital which were
unreimbursed expenditures incurred by the stockholder.
During the period August 13, 1997 (date of inception) through December 31,
1997, the Company incurred a payable in connection with the incurrence of
$7,705 of capitalized offering costs.
During the period ended September 30, 1998, the Company incurred a payable
of $242,894 (unaudited) in connection with its acquisition of equipment.
During the period ended September 30, 1998, the Company reduced paid in
capital by $23,304 of offering costs.
Read independent auditors' report. The accompanying notes are an integral part
of the financial statements.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Periods August 13, 1997 (Date of Inception)
through September 30, 1998
1. Basis of Presentation and Reorganization
Steele Holdings, Inc. (a Florida corporation) was incorporated on August 13,
1997. Swifty Carwash & Quik-Lube, Inc. (a Florida corporation) was incorporated
on September 23, 1997. On January 20, 1998, these companies entered into a plan
of reorganization whereby Steele Holdings, Inc. transferred to Swifty Carwash &
Quik-Lube, Inc. all of its assets in exchange for 6,000,000 shares of stock
which represented all of the stock outstanding of Swifty Carwash & Quik-Lube,
Inc. These shares were immediately distributed to the stockholder of Steele
Holdings, Inc. in complete liquidation and cancellation of its stock. The
accompanying financial statements reflect this reorganization in a manner
similar to a pooling of interest and as though it occurred on August 13, 1997.
Since inception of the above companies, they have been in their development
stage, devoting all of their efforts to the development of a car wash and oil
change facility in Pinellas County, Florida.
2. Significant Accounting Policies
The significant accounting policies followed are:
The preparation of financial statements in accordance with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities
and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
In the opinion of management, all adjustments consisting only of normal
recurring adjustments necessary for a fair presentation of (a) the
results of operations for the nine-month period ended September 30, 1998
and the period August 13, 1997 (date of inception) through September 30,
1998, (b)
Read independent auditors' report.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Periods August 13, 1997 (Date of Inception)
through September 30, 1998
2. Significant Accounting Policies (continued)
the financial position at September 30, 1998, and (c) cash flows for the
nine-month period ended September 30, 1998 and period August 13, 1997
(date of inception) through September 30, 1998, have been made.
Cash equivalents consist of highly liquid debt instruments purchased
with a maturity of three months or less.
The Company maintains cash accounts in excess of the Federal Deposit
Insurance Corporation's insured limit of $100,000.
Building and equipment are stated at cost. Depreciation is calculated
over the useful lives of the assets. No depreciation has been recorded
in the accompanying financial statements since the equipment has not
been placed into service.
During the period ended December 31, 1997, costs pertaining to the
acquisition and construction of facilities had been capitalized as
project costs and were transferred to building and equipment during the
period ended September 30, 1998.
Loss per share is based on the weighted average number of common shares
outstanding during each period after giving effect to the
recapitalization described in Note 1. The Company has implemented SFAS
No. 128. There is no effect on the prior loss per share amounts based on
this statement. In computing diluted earnings per share, warrants
exercisable into 231,840 shares were excluded because the effects were
antidilutive.
Costs incurred in connection with the expected private placement
memorandum have been capitalized as offering costs and will be offset
against proceeds from the offering.
Read independent auditors' report.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Periods August 13, 1997 (Date of Inception)
through September 30, 1998
2. Significant Accounting Polices (continued)
Organizational costs are capitalized and amortized over 60 months
beginning in 1998.
Deferred tax assets and liabilities are recognized for the estimated
future tax consequences attributable to differences between the
financial statements carrying amounts of existing assets and liabilities
and their respective income tax bases. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to
taxable income in the years in which those temporary differences are
expected to be recovered or settled. The effect on deferred tax assets
and liabilities of a change in tax rates is recognized as income in the
period that included the enactment date.
Certain minor reclassifications have been made in the 1997 financial
statements to conform to the classifications used in 1998.
3. Building and Equipment Not Yet Placed In Service
Building and equipment not yet placed in service consist of:
September 30, December 31,
1998 1997
(Unaudited)
Land and buildings $ 595,554
Furniture and fixtures 9,487
Machinery and equipment 351,370 $ 10,049
Project costs 8,344
---------------------------------------
$ 956,411 $ 18,393
=======================================
The Company has not recorded depreciation expense on these assets as they have
not been placed in service as of September 30, 1998 (unaudited).
Read independent auditors' report.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Periods August 13, 1997 (Date of Inception)
through September 30, 1998
4. Note Payable
The note payable as of September 30, 1998 (unaudited) consists of:
Note payable to bank; construction loan; maximum amount of $525,000;
interest at prime plus 1.0% (9.25% at September 30, 1998); interest
only through May 1999; principal and interest payments of
approximately $2,100 per month beginning June 1999 through May 2014;
secured by mortgage;
personally guaranteed by the majority stockholder $ 206,686
Less amounts currently due 2,161
-----------
$ 204,525
The following is a schedule by year of the approximate principal payments
required on this note as of September 30, 1998 (unaudited):
1999 $ 2,161
2000 6,895
2001 7,561
2002 8,291
2003 9,091
Thereafter 172,687
-----------
$ 206,686
5. Income Taxes
The Company anticipates a taxable loss for the year ending December 31, 1998.
The Company has not recorded any benefit from this anticipated loss due to the
uncertainty of its realization in the future.
Read independent auditors' report.
<PAGE>
Swifty Carwash & Quik-Lube, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Periods August 13, 1997 (Date of Inception)
through September 30, 1998
6. Stock Offering (Unaudited)
On February 18, 1998, Swifty Carwash & Quik-Lube, Inc., the successor company,
herein after referred to as "the Company," offered 160,000 shares of common
stock and 320,000 common stock warrants through a private placement memorandum
to raise $1.0 million. Each warrant will entitle the holder to purchase one
share of the Company's common stock at $7.25 per share at any time after 30 days
from their issue date through December 31, 2000. Prior to their expiration, each
warrant may be redeemable by the Company at a price of $.01.
As of September 30, 1998 (unaudited), 115,920 shares of stock and 231,840 common
stock warrants have been issued under the above offering.
7. Commitments and Related Party Transactions
During the period ended September 30, 1998, subsequent to the Company's
reorganization, the Company issued 2,235,000 shares of stock to directors and
officers at $.01 per share (unaudited).
At September 30, 1998, the Company had $99,166 (unaudited) of advances to a
stockholder. Subsequent to September 30, 1998, $96,166 of this amount was
formalized into an unsecured promissory note which bears interest at eight
percent (unaudited). The note is to be repaid to the Company in quarterly
installments of principal and interest of $5,000 beginning on November 15, 1998
until the balance is repaid in full.
During the development stage, various individuals have performed services for
the Company at no cost.
The above related party agreements are not necessarily indicative of the
agreements that would have been entered into by independent parties.
During the period ended September 30, 1998, the Company entered into a contract
to construct a car wash facility for a total contract price, including change
orders, of approximately $546,000. As of September 30, 1998, approximately
$207,000 (unaudited) of construction costs have been incurred under this
contract.
On August 8, 1998, the Company entered into a consulting and contracting
agreement with a stockholder whereby the stockholder will explore, investigate,
and locate appropriate parcels of land and supplies of equipment on behalf of
the Company. In addition, the stockholder will provide certain construction
services to the Company. In exchange for these services, the Company will pay
the stockholder between three and five percent of the total costs of projects
which have been negotiated or performed by the stockholder. Included in deposits
at September 30, 1998 is $210,000 (unaudited) paid to the stockholder in
connection with this agreement.
Read independent auditors' report.
<PAGE>
Part III Exhibits
Item 1 Index to Exhibits......................................................
SWIFTY CARWASH & QUIK-LUBE, INC.
INDEX TO EXHIBITS
(2)Charter and By-Laws........................................................
(a)Articles of Incorporation.............................. ..............
(b)By-Laws...............................................................
(3)Instruments Defining the Rights of Security Holders......................None
(5)Voting Trust Agreements..................................................None
(6)Material Contracts.........................................................
(a)Equipment Purchase Contract...........................................
(b)Construction Contract.................................................
(c)Architect Contract....................................................
(d)Consulting Contract-Donald Hughes.....................................
(e)Employment Contract-Stanley Rabushka..................................
(f)Promissory Note - Swifty..............................................
(g)Promissory Note - Steele .............................................
(h)Consulting Contract-John Oster .......................................
(i)Raymond Lipsch Contract ..............................................
(j)Land Purchase Contract................................................
(7)Material Foreign Patents.................................................None
(12)Additional Exhibits.....................................................None
(13)Form F-X................................................................None
<PAGE>
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
Swifty Carwash & Quik-Lube, Inc.
Date: November 20, 1998
By: /s/ Rachel Steele
-----------------------
Rachel Steele, President
(2) Charter and Bylaws
Articles of Incorporation of Swifty Carwash & Quik-Lube, Inc.
The undersigned, acting as incorporator of the captioned corporation under
the Florida Business Corporation Act, adopts the following Articles of
Incorporation:
ARTICLE I
Corporate name and Principal Office
The name of this corporation is SWIFTY CARWASH & QUIK-LUBE, INC. and its
principal office and mailing address is 17521 Crawley Road, Odessa, Florida
33556.
ARTICLE II
Commencement of Corporate Existence
The corporation shall come into existence on September 23, 1997.
ARTICLE III
General Nature of Business
The corporation may transact any lawful business for which corporations may
be incorporated under Florida law.
ARTICLE IV
Capital Stock
The aggregate number of shares of stock authorized to be issued by this
corporation shall be 50,000,000 shares of common stock, each with a par value of
$.0001. Each share of issued and outstanding common stock shall entitle the
holder thereof to fully participate in all shareholder meetings, to cast one
vote on each matter with respect to which shareholders have the right to vote,
and to share ratably in all dividends and other distributions declared and paid
with respect to the common stock, as well as in the net assets of the
corporation upon liquidation or dissolution.
ARTICLE V
Initial Registered Office and Agent
The street address of the initial registered office of the corporation
shall be 220 South Franklin Street, Tampa, Florida 33602, and the initial
registered agent of the corporation at such address is David M. Jeffries.
ARTICLE VI
Incorporator
The name and address of the corporation's incorporator is:
Name Address
Stephanie R. Conn 220 South Franklin Street
Tampa, Florida 33602
ARTICLE VII
By-Laws
The power to adopt, alter, amend or repeal by-laws of this corporation
shall be vested in its shareholders and separately in its Board of Directors, as
prescribed by the by-laws of the corporation.
ARTICLE VIII
Indemnification
If in the judgment of a majority of the entire Board of Directors,
(excluding from such majority any director under consideration for
indemnification), the criteria set forth in Section 607.0850(1) or (2), Florida
Statutes, as then in effect, have been met, then the corporation shall indemnify
any director, officer, employee or agent thereof, whether current or former,
together with his or her personal representatives, devisees or heirs, in the
manner and to the extent contemplated by Section 607.0850, as then in effect, or
by any successor law thereto.
IN WITNESS WHEREOF, the undersigned has executed these Articles this 23rd
day of September, 1997.
/S/ Stephanie R. Conn
Stephanie R. Conn
<PAGE>
CERTIFICATE DESIGNATING
REGISTERED AGENT
Pursuant to the provisions of Sections 48.091 and 607.0501, Florida
Statutes, SWIFTY CARWASH & QUIK-LUBE, INC., desiring to organize under the laws
of the State of Florida, hereby designates David M. Jeffries, an individual
resident of the State of Florida, as its Registered Agent for the purpose of
accepting service of process within such State and designates 220 South Franklin
Street, Tampa, Florida 33602, the business office of its Registered Agent, as
its Registered Office.
SWIFTY CARWASH & QUIK-LUBE, INC
By: /s/ Stephanie R. Conn
---------------------------
Stephanie R. Conn, Incorporator
ACKNOWLEDGEMENT
I hereby accept my appointment as Registered Agent of the above named
corporation, acknowledge that I am familiar with and accept the obligations
imposed by Florida law upon that position, and agree to act as such in
accordance with the provisions ss.ss.48.091 and 607.0505, Florida Statues.
/s/ David M. Jeffries
------------------------------
David M. Jeffries
BY-LAWS
OF
SWIFTY CARWASH & QUIK-LUBE, INC.
ARTICLE I
Share Certificates and Transfer
Section 1. Certificates:
Certificates representing the shares of capital stock of this Corporation shall
be printed or engraved in such form and contain such recitals, signatures and
seals as required by law, or to the extent not in conflict therewith, as may be
determined by the Board of Directors. Every Shareholder shall be entitled to
receive a certificate representing the number of shares owned once such shares
are fully paid.
Section 2. Transfer:
Upon surrender to the secretary or transfer agent of the Corporation of a
certificate representing a share or shares of its stock, duly endorsed or
accompanied by evidence of succession, assignment or authority to transfer
reasonably satisfactory to the Secretary or transfer agent, as well as all
necessary Florida stock transfer tax stamps or the funds therefor and evidence
of compliance with any conditions or restrictions set forth or referred to on
the certificate, the Corporation shall be required to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction on its books.
Section 3. Issuance of Substitute Certificates:
A new certificate may be issued in lieu of any certificate previously issued
which has been defaced or mutilated, upon surrender or cancellation of a part of
the old certificate sufficient, in the opinion of the Treasurer, to protect the
Corporation against loss or liability. A new certificate may also be issued in
lieu of any certificate then not in the possession of the holder of record if
such holder shall by written affirmation, under oath, state the circumstances of
its absence, and shall, if required by the Board, provide the Corporation with
an indemnity bond in form and with one or more sureties satisfactory to the
Board, in at least double the value of the shares represented by the absent
certificate and satisfy any other reasonable requirements which it may impose.
ARTICLE II
Corporate Records and Seal; Authority to Act
Section 1. Records:
The Corporation shall maintain at its principal place of business accurate and
complete records of its operations and properties, including a record of its
Shareholders and minutes of the proceedings of its Shareholders, Board of
Directors and Board committees. Unless modified by Shareholder resolution
adopted not later than four months following the close of each of the
Corporation's operational years, the Corporation shall prepare within a
reasonable time following the close of each such year and maintain at its
principal place of business, as well as at its registered office, financial
records which shall include a statement of financial position as of the end of
each such year and a statement of profit earned or loss incurred therein.
Section 2. Inspection:
All records required by the Florida Business Corporation Act to be maintained by
the Corporation shall be open for inspection by the individuals and in the
manner specified in such Act as the same may be in effect from time to time.
Section 3. Closing Shareholder Record Book:
The Board may close the Shareholder record book for a period of not more than 30
nor less than ten days preceding any Shareholder meeting or the day fixed for
the payment of a dividend, and upon its failure to do so the Shareholder record
date for either purpose shall be 14 days preceding the event.
Section 4. Seal:
The Corporation shall own a corporate seal which shall be circular in form and
have inscribed thereon its name and the date and state of its incorporation.
Section 5. Contracts:
The Board of Directors may by resolution authorize any officer or agent to enter
into any contract or execute and deliver any instrument in the name of or on
behalf of the Corporation, and such authority may be general or confined to
specific instances; but absent the grant of such authority no individual, other
than the President, shall have power to bind the Corporation under any contract,
pledge its credit or render it liable for any purpose or in any amount.
Section 6. Checks and Drafts:
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the Corporation shall be signed
or endorsed by such person or persons and in such manner as shall be determined
by resolution of the Board of Directors.
-2-
<PAGE>
ARTICLE III
Shareholder Meetings and Voting Rights
Section 1. Annual Meetings:
The annual meeting of the Shareholders of the Corporation shall be held on the
first Tuesday of the fourth month following the close of the Corporation's
operational year. If that day is a legal holiday, the annual meeting will be
held on the first day thereafter that is not a legal holiday. At the annual
meeting the Shareholders, by vote of the holders of a majority of the shares
represented, shall elect a Board of Directors, consider reports of the affairs
of the Corporation and transact such other business as is properly brought
before the meeting.
Section 2. Special Meetings:
Special Shareholder meetings shall be held upon the direction of the President
or Board of Directors or upon the written request of the holders of not less
than ten percent of all shares entitled to vote.
Section 3. Place of Meeting:
All Shareholder meetings shall be held at the principal office of the
Corporation unless an alternate location shall be selected by the Board and
communicated to the Shareholders by written notice. The holders of a majority of
shares of the Corporation's outstanding voting stock shall have the right to
reject such alternative location by filing written notice to that effect with
the Secretary not less than two days prior to the called date of the meeting.
Section 4. Notice:
Written notice stating the place, day and hour of each Shareholder meeting and,
in the case of a special meeting, the nature of the business to be transacted
shall be delivered to each Shareholder of record entitled to vote not less than
ten days prior to the date of such meeting and otherwise in the manner specified
in the Florida Business Corporation Act. When a meeting is adjourned for 30 days
or more, notice of the adjourned meeting shall be given as in the case of the
original meeting; otherwise no notice of the adjournment or of the business to
be transacted at the adjourned meeting need be given other than by way of an
announcement made at the meeting at which such adjournment is taken.
-3-
<PAGE>
Section 5. Voting List:
Unless the Corporation has fewer than six Shareholders, as of the date fixed in
accordance with the provisions of Article II, Section 3., the officer or agent
having charge of the Shareholder record books shall prepare a list of the
Shareholders entitled to vote at each Shareholder meeting or any adjournment
thereof, including the address of and the number and class and series, if any,
of shares held by each. For a period of ten days prior to the meeting, such list
shall be kept at the Corporation's principal place of business where any
Shareholder shall be entitled to inspect it during usual business hours. The
list shall also be made available and subject to inspection by any Shareholder
at any time during the subject meeting.
Section 6. Substance of Meeting:
Any question may be considered and acted upon at an annual meeting, but no
question not stated in the call for a special meeting shall be acted upon
thereat unless the provisions of Article III, Section 9. or Article VI, Section
3. are complied with.
Section 7. Shareholders' Quorum and Voting Rights:
The holders of a majority of the shares entitled to vote, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
Shareholders, unless otherwise provided by law, but a lesser interest may
adjourn any meeting from time to time until the requisite amount of voting
shares shall be present.
Each outstanding share of the Corporation's capital stock shall entitle the
holder of record to one vote. An affirmative vote of a majority of the shares
represented at each meeting shall decide any question brought before it, unless
the question is one upon which, by express provision of law, the Corporation's
Articles of Incorporation or these By-Laws, a larger or different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 8. Proxies:
Every Shareholder entitled to vote, or to express consent to or dissent from a
proposed corporate action, may do so either in person or by written proxy duly
executed and filed with the Secretary of the Corporation. If a proxy is
executed, its use shall be controlled by the provisions of the Florida Business
Corporation Act.
-4-
<PAGE>
Section 9. Action By Shareholders Without a Meeting:
Any action required or allowed to be taken at a meeting of Shareholders may be
taken without a meeting, prior notice or vote, if a written consent, setting
forth the action taken, shall be signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted, and the written consent specified in the Florida
Business Corporation Act shall be obtained and furnished to all non-consenting
Shareholders.
ARTICLE IV
Board of Directors
Section 1. Power and Responsibility:
Subject to the limitations imposed by the Articles of Incorporation, these
By-Laws or the Florida Business Corporation Act, all corporate powers and
responsibilities shall be exercised by or under the authority of, and the
business and affairs of the Corporation shall be controlled by, the Board of
Directors.
Section 2. Number:
The number of directors which shall constitute the entire Board of Directors
shall be not less than one nor more than seven. Within these limits the actual
number constituting the entire Board shall be that fixed from time to time by
Board resolution, and until such time as the Board determines otherwise, the
number of directors shall be four. No reduction in the number of Directors shall
have the effect of removing any director prior to the expiration of his term of
office.
Section 3. Election and Term:
At the first annual Shareholder meeting and at each annual meeting thereafter
the Shareholders shall elect directors to hold office until the next succeeding
annual meeting. Each director shall hold office for the term for which he is
elected and until his successor shall have been elected and qualified or until
his earlier resignation, removal from office or death.
-5-
<PAGE>
Section 4. Vacancy:
Any vacancy occurring in the Board of Directors, including any vacancy created
by reason of an increase in the number of directors, may be filled by the
affirmative vote of a majority of all remaining directors, even if less than a
quorum, and a director so chosen shall hold office only until the next election
of directors by the Shareholders. The Shareholders may at any time elect a
director to fill any vacancy not filled by the directors, and may elect
additional directors at a meeting at which an amendment of the By-Laws is voted
authorizing an increase in the number of directors.
Section 5. Removal:
At a meeting of Shareholders called expressly for that purpose, any director or
the entire Board may be removed, with or without cause, by a vote of the holders
of a majority of the shares then entitled to vote at an election of directors.
Section 6. Presumption of Assent:
A director of the Corporation who is present at a meeting of its Board of
Directors at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless he votes against such action or
abstains from voting in respect thereto because of an asserted conflict of
interest.
Section 7. Quorum and Voting:
A majority of the number of directors fixed in the manner prescribed in Article
IV, Section 2 of these By-Laws shall constitute a quorum for the transaction of
business. The action of a majority of the directors present at any meeting at
which there is a quorum, when legally assembled, shall be a valid corporate
action.
Section 8. Director Conflicts of Interest:
The legal effectiveness or enforceability of any contract or other transaction
authorized by the Corporation's Board, any committee thereof or its Shareholders
which may present a conflict of interest as contemplated by the Florida Business
Corporation Act shall be determined by the provisions thereof. Directors whose
relationship with another person or entity is the source of such potential
conflict of interest may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or a committee thereof which authorizes,
approves or ratifies such contract or transaction.
-6-
<PAGE>
Section 9. Executive and Other Committees:
(a) By resolution adopted by a majority of the entire Board of Directors, there
may be designated from among its members an executive committee and other
committees each of which, to the extent provided in such resolution, shall have
and may exercise all the authority of the Board of Directors, except with
respect to those matters which by law are precluded from being delegated to a
committee.
(b) Each committee (including the members thereof) shall serve at the pleasure
of the Board and shall keep minutes and report the same to the Board. The Board
may designate one or more directors as alternate members of any committee. In
the absence or upon the disqualification of a member of a committee, if no
alternate member has been designated by the Board, the members present at any
meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of the absent or disqualified member.
(c) A majority of all members of a committee shall constitute a quorum for the
transaction of business, and the vote of a majority of all the members of a
committee present at a meeting at which a quorum is present shall be the act of
the committee. Each committee shall adopt whatever other rules of procedure it
determines appropriate for the conduct of its activities.
Section 10. Place of Meeting:
Meetings of the Board of Directors may be held at any location specified in the
call of the meeting or as agreed to by the directors.
Section 11. Time, Notice and Call of Meetings:
(a) Annual Meeting: Promptly following the adjournment of each annual
Shareholder meeting, the Board of Directors elected thereat shall, without
notice, convene an annual meeting and organize by the election of a Chairman who
shall preside over its further conduct.
(b) Regular Meetings: Regular meetings of the Board may be held during each
annual period in accordance with such schedule as may be agreed to by the Board
at its annual meeting. No notice need be given of such regular meetings.
-7-
<PAGE>
(c) Special Meetings: Special meetings of the Board shall be held from time to
time upon call issued by the Chairman of the Board, any two directors, or the
President or Vice-President of the Corporation. Written notice of the time and
place of each special meeting shall be delivered personally to all directors or
sent to each by telegram or letter, charges prepaid, addressed to him at his
address shown on the records of the Corporation or as otherwise actually known
by the Secretary. If notice is mailed or telegraphed, it shall constitute
sufficient notice if it is delivered to the above address not less than 24 hours
prior to the time of the holding of the meeting.
(d) Adjournment: A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the Board to another time and place. Notice
of the time and place of holding such adjourned meeting need not be given if
they are fixed at the meeting adjourned and while a quorum is present;
otherwise, notice shall be given to all directors in the manner directed in
subsection (c) above.
Section 12. Action Without a Meeting:
Any action required or permitted to be taken by the Board or a committee thereof
may be taken without a meeting if all members shall individually or collectively
consent in writing to such action. Such written consent shall be filed in the
minutes of the proceedings of the Board or committee and shall have the same
effect as a unanimous vote in favor of the action consented to.
ARTICLE V
Officers
Section 1. Composition and Term:
The officers of the Corporation shall consist of a President, Vice-President,
Secretary, Treasurer and such other officers with such titles, duties and powers
as may be prescribed by the Board of Directors. All officers shall be elected by
and serve at the pleasure of the Board.
Section 2. Election:
At their annual meeting the Directors shall elect officers of the Corporation,
any of whom may but need not be members of the Board. Any two or more of such
offices may be held by the same individual.
-8-
<PAGE>
Section 3. Resignation or Removal:
Any officer may resign by giving written notice to the Board of Directors, the
President or the Secretary. Such resignation shall take effect upon receipt of
the notice, or at any later time specified therein (subject to the Board's right
of removal), and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Any officer may be removed, with or without cause, by action of a majority of
the entire Board taken at any regular or special meeting of the Board, or by
another officer upon whom such power of removal is expressly conferred by the
Board.
Section 4. Vacancy:
A vacancy in any office shall be filled by action of the Board, and its
appointee shall hold office for the unexplored term or until his successor is
elected and qualified.
Section 5. President:
The President shall be the principal executive officer of the Corporation, and,
subject to the control of the Board, shall generally supervise and control all
of the business and affairs of the Corporation. He shall preside at all meetings
of the Shareholders and, unless a Chairman of the Board of Directors has been
elected and is present, shall preside at meetings of the Board of Directors. He
shall be an ex-officio member of all committees appointed by the Board, and
shall have the general powers and duties customarily performed and exercised by
the chief executive officer of any Corporation for profit organized under the
laws of Florida, as well as such additional powers or duties as may be
prescribed by these By-Laws or the Board.
Section 6. Vice-President:
In the absence of the President or in the event of his death, inability or
refusal to act, the Vice-President shall be vested with the powers and duties of
the President. Any Vice-President may sign, with the Secretary, share
certificates issued by the Corporation; and shall perform such other duties as
from time to time may be assigned to him by the Board of Directors or President.
-9-
<PAGE>
Section 7. Secretary:
The Secretary shall keep, or cause to be kept, a book of minutes at the
principal office or such other place as the Board of Directors and Shareholders
may designate, a current Shareholder record book, showing the names of all
Shareholders and their addresses; and a record of all meetings conducted by the
Shareholders, Directors or Director Committees, which latter record shall
include the time and place of holding, whether regular or special, and, if
special, how authorized, the notice thereof given, the names of those present at
directors' meetings, the number of shares present or represented at
Shareholders' meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal office or at the
office of the Corporation's transfer agent, a Shareholder record, or a duplicate
Shareholder record, showing the names of the Shareholders and their addresses,
the number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the meetings of
the Shareholders and of the Board of Directors required by the By-Laws or by law
to be given, and he shall keep the seal of the Corporation and affix said seal
to all documents requiring a seal, and shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors or the By-Laws.
Section 8. Treasurer:
The Treasurer shall have custody of all corporate funds, securities, valuable
papers and financial records; shall keep full and accurate accounts of receipts
and disbursements and render accounts thereof at the annual meetings of
Shareholders and at such other times as requested by the Board or President; and
shall perform such other duties as may be prescribed by the Board or President.
Section 9. Assistant:
Any Assistant Secretary or Assistant Treasurer, respectively, may exercise any
of the powers of Secretary or Treasurer, respectively, as provided in these
By-Laws or as directed by the Board of Directors, and shall perform such other
duties as may be prescribed by the Board or President.
Section 10. Chief Executive Officer:
The Chief Executive Officer shall assist the principal executive officer of the
Corporation, and, subject to the control of the Board, shall generally supervise
and control all of the business and affairs of the Corporation. He shall preside
at
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<PAGE>
all meetings of the Board of Directors. He shall be an ex-officio member
of all committees appointed by the Board, and shall have the general powers and
duties customarily performed and exercised by the chief executive officer of any
Corporation for profit organized under the laws of Florida, as well as such
additional powers or duties as may be prescribed by these By-Laws or the Board.
Section 11. Chief Financial Officer:
The Chief Financial Officer shall assist and oversee all corporate funds,
securities, valuable papers and financial records; shall assure that full and
accurate accounts of receipts and disbursements are kept and accounts rendered
thereof at the annual meetings of Shareholders and at such other times as
requested by the Board or President; and shall perform such other duties as may
be prescribed by the Board or President.
ARTICLE VI
Miscellaneous
Section 1. Parliamentary Procedure:
When not in conflict with these By-Laws, Roberts Rules of Parliamentary
Procedure shall establish the rules at all Shareholder and director meetings.
Section 2. Fiscal Year:
The fiscal year of the Corporation shall be fixed, and shall be subject to
change, by the Board.
Section 3. Consent to Meeting:
The transactions approved at any meeting of Shareholders or the Board of
Directors, however called and noticed, shall be as valid as though acted upon at
a meeting duly held after regular call and notice, if a quorum is present
(either in person or by proxy in the case of a Shareholder meeting) and if,
either before or after the meeting, each of the Shareholders entitled to vote or
directors, as the case may be, not present (or represented by proxy in the case
of a Shareholder meeting) signs a written waiver of notice, or a consent to the
holding of such meeting, or an approval of the minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate records or made
a part of the minutes of the meeting. Personal representatives, trustees and
other fiduciaries entitled to vote shares may sign such waivers, consents or
approvals.
Section 4. Amendment and Repeal of By-Laws:
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<PAGE>
(a) By Shareholders: New By-Laws may be adopted or these By-Laws may be
repealed or amended at the annual or any other meeting of Shareholders called
for that purpose, by a vote of Shareholders entitled to exercise a majority of
the voting power of the Corporation, or by the written assent of such
Shareholders.
(b) By Board of Directors: Subject to the right of the Shareholders to adopt,
amend or repeal By-Laws, as provided in this section, the Board of Directors may
adopt, amend or repeal any of these By-Laws including the By-Law or amendment
thereof changing the authorized number of directors.
(c) Record of Amendments: Whenever an amendment to or repeal of any existing
By-Law is adopted, or an additional By-Law provision is approved, a replacement
page containing such new material and noting the date and manner of its adoption
shall be inserted in the original By-Laws, in the appropriate place.
(6) Material Contracts
(a) Equipment Purchase Contract
EQUIPMENT/ORDER SALES AGREEMENT
Buyer and Mailing Address: Date Of Order: _________________
Swifty Car Wash & Quik Lube, Inc. ("Swifty" or "Buyer",)
32663 U.S. 19 N.
Palm Harbor, Florida 34684
Shipping Address:
Same
Seller and Mailing Address:
O'Hanrahan Consultant's, Inc. ("O'Hanrahan" or "Seller")
P.O. Box 5301
Clearwater, Florida 33758
Erection By: O'Hanrahan
Installation By: Owners Subcontractor's
Warranty of Equipment By: PDQ Manufacturing, Inc., 320 Packerland Drive,
Greenbay, Wisconsin, 54303 ("PDQ" or "manufacturer") and O'Hanrahan
Labor Warranty By: O'Hanrahan
Upon Shipment Notify:
Att. David Weintraub
Telephone: 813-926-1603
Customer P.O. No./ Date Shipment Needed/ Sales Terms Freight Terms
Name of System-Spelled Out: PDQ Open Line Tunnel with Modifications
Voltage :208 230-240 380 460-480-575-Other As Specified by Buyer based
primarily on Seller's advise as to the appropriate voltage X
Type Bldg: By Others X Description
Equipment Clearance: 90" X 84"(Std) _70"(Opt) Other (Spec,)_ Based on
Seller's determination and advice, and after examining the Buyer's and
Builders plans and specifications.
Expenses for Shipping, Handling, and Insurance provided by carrier are paid for
by Buyer, by including such expenses in the purchase price below and therefore
Seller shall remit funds for such expenses to the carrier on behalf of Buyer.
Order will be Shipped by PDQ from the manufacturer's factory in Greenbay,
Wisconsin Freight Prepaid.
QTY: DESCRIPTION: PRICE:
See Exhibit A attached
TOTAL PRICE: $271,000.10
SHIPPING, HANDLING, AND SHIPPING
INSURANCE CHARGE: 4,650.00
1ERECTION FEE: (by Seller) 12,500.00
2INSTALLATION &CONSTRUCTION WORK: By owner's contractor
SALES TAX: 17,333.61
---------
TOTAL: $305,393.71
3CASH DEPOSIT WITH ORDER: 25,000.00
---------
CASH BALANCE: 280,393.71
----------
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1 Including items described hereinafter
2 Items as described hereinafter
3 This deposit shall be paid in the amounts of $5,000.00 to O'Hanrahan and
$20,000.00 to PDQ Corporation on behalf of O'Hanrahan the total of these
$25,000.00 payments all credited against the contract price. Seller agrees to
obtain a written agreement from PDQ, satisfactory to Buyer, that this $20,000.00
(as well as the $37,500.00 paid at the time that a delivery date is specified as
described hereinafter) will be hold by PDQ until all of the goods purchased
hereunder have been delivered to Buyer, and that such funds will be subject to
recovery by Buyer in the event of a breach or failure to perform by Seller.
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EQUIPMENT SALES AGREEMENT
General Terms of Sales
The cash deposit of $25,000.00 shall not be delivered until all documents and
letters required to be obtained by Seller from PDQ, as described in various
sections of this contract, are delivered to Buyer. Assuming that Seller has
fulfilled its obligations under this contract, Buyer shall pay an additional sum
in the amount of $37,500,00 against the cash balance at the time that Buyer
specifies the delivery date for the goods, as described hereinafter. That
payment of $37,500.00 shall be paid to PDQ on behalf of O'Hanrahan and shall be
credited against the contract price and will be held under the same terms and
conditions as the $20,000.00 portion of the cash deposit as described in
footnote 3 herein. Unless otherwise stated herein, the Buyer shall upon receipt
of all the goods covered by this contract and presentation to Buyer of an
appropriate sight draft attached to a bill of lading showing the shipment of
such goods, pay the then cash balance for the goods sold him under this
Agreement, as described hereinafter in this paragraph. Notwithstanding the
foregoing, Buyer will be permitted to examine and inspect the goods in order to
verify that the goods that were ordered have been received in good condition,
prior to payment. Payment of the cash balance shall be as follows: $294,036.11
shall be paid to Seller and $25,000.00 shall be paid to Peoples Bank of Palm
Harbor, 32845 US Highway 19, Palm Harbor, Florida, to be held by them as Escrow
Agent until Buyer advises Escrow Agent that all of the goods purchased by Buyer
have been received in perfect working condition, have been installed by Seller,
and Buyer's car wash is fully functional and operating.
While in the hands of the carrier for shipment, to the extent that the goods
being shipped hereunder are fully covered by insurance, paid for by Seller on
behalf of Buyer as described hereinbefore, Buyer hereby assumes the risk of loss
from any hazards occurring after delivery by manufacturer to such carrier for
shipment to Buyer and agrees to assert all claims for damages or losses in
traffic directly against the carrier to the extent practical. Claim for
shortages must be made to the manufacturer or to the Seller within ten (10) days
after start-up of equipment. Buyer agrees to provide seller and the manufacturer
a reasonable opportunity for inspection after receipt of any claims.
Seller warrants that the goods being sold hereunder are new and in perfect
working condition, free of defects and free and clear from any security interest
or any other lien or encumbrance that good title to all such goods is conveyed
to Buyer and Seller also agrees to obtain a representation from PDQ warranting
that the goods are new and in perfect working condition, free of defects and
free and clear from any security interest or any other lien or encumbrance.
Seller warrants and represents that all of the goods being sold hereunder are
warranted to be new, free from defects, and in perfect operating condition for a
period of one (1) year from the date that the operation of the facility to which
they are delivered commences and that Seller win promptly replace or repair any
goods covered by this warranty, as needed, at no cost to the Buyer except for
any return freight cost. Seller agrees that he shall back such warranty and that
he shall also obtain a written warranty satisfactory to Buyer from PDQ also
warranting all such goods to be new, free from defects and in perfect operating
condition for a period of one (1) year from the date that the operation of the
facility to which they are delivered commences. Seller also warrants that Seller
shall be responsible, at no cost to Buyer, for any and all labor in connection
with all replacements and repairs that may be necessary for a six (6) month
period of time after the facility commences operation. Any documents required by
this paragraph shall be delivered to Buyer prior to Buyer paying for the goods
being sold hereunder and all of such representations and warranties shall be a
precondition to Buyer's obligation to make payment for these goods.
Notwithstanding the foregoing, the warranty from PDQ and/or Seller will warrant
the equipment sold to be free from defects in material and workmanship for a
period of twelve (12) months from the date that the operation of the facility to
which they are delivered commences. PDQ's and/or Seller's responsibility is
limited to repairing or exchanging any defective parts during this twelve (12)
month period. The foregoing warranty does not apply to damage resulting from
improper operation or abuse, exceeding the rated capacities of the unit, running
foreign particles or nonrelated solutions through pumps or valves, modification
or alteration of any parts, use of acidic solutions, improper installation or
maintenance, operational neglect, neglect of manufacturers recommended
maintenance, customer strike damage, nuisance calls, or acts of God. Normal ware
and tear items to include, but not limited to nozzles, belts, hoses, filters,
fuses, and swivels are not covered under this warranty. This paragraph describes
the limits of the warranty of PDQ Manufacturing, Inc. and/or Seller for any
breach of warranty. All warranties, either expressed or implied pertaining to
the equipment herein are fully set forth herein and in the PDQ written warranty
and under no circumstances share such warranties be construed to cause PDQ
Manufacturing, Inc. and/or Seller to be liable for loss of revenue,
consequential damages, or other special damages.
All repairs and/or replacements required by Buyer shall be provided by Seller as
expeditiously as possible during the warranty periods. Thereafter, if Buyer
elects to continue to utilize Seller for such matters, Seller agrees to continue
to provide Buyer with timely and quality services in that regard.
Seller has examined all of Buyer's and Builder's plans and specifications, and
Seller represents that upon completion of the facility in accordance with those
plans and specifications together with the delivery, erection, and installation
of the goods being purchased hereunder, Buyer will have a fully functioning car
wash facility, with all necessary equipment and accessories.
In addition to any other amounts awarded by a Court it is agreed that, in any
litigation between the parties to this agreement, the prevailing party shall
also be entitled to collect his reasonable attorney fees and court costs.
Seller agrees to deliver to Buyer the goods being sold hereunder on the date
specified by Buyer provided that Buyer furnishes Seller at least 10 days notice
of such delivery date. Buyer agrees to furnish Seller with such notice between
60 and 120 days after the execution of this contract. It is understood that in
order to accomplish the foregoing, the goods being purchased need to be
manufactured and ready to ship within 60 days after execution of this contract,
and Seller agrees to obtain a written agreement from PDQ, satisfactory to Buyer,
that such goods will be manufactured and ready to ship in accordance with this
requirement. Seller agrees that all such equipment will be completely erected,
installed and fully and property functioning within 30 days after delivery to
Buyer. The parties acknowledge and agree that time is of the essence in the
performance of their respective obligations under this contract. Notwithstanding
the foregoing, all obligations to be performed by Buyer and Seller hereunder
shall be subject to delay or failure resulting from acts of God, war or civil
disturbances, fire, labor disputes or government regulations.
This agreement expresses the entire understanding of the parties with reference
to the subject matter hereof and other than the warranties accompanying or
covering the property, there is no other understanding, agreement,
representation, or warranty, express or implied, statutory or otherwise, in any
way limiting, extending, defining or relating to the provisions hereof. No
agreement altering, modifying or extending the terms of this agreement shall be
valid unless in writing signed by the parties or their duly authorized
representatives. It is understood and agreed that this contract cannot be
canceled without the written consent of the parties.
RESPONSIBILITIES
IMPORTANT: Below are the responsibilities of the Buyer and Seller.
APPROVAL AND PERMITS--BUYER'S RESPONSIBILITY.
A) Determine whether land is properly zoned for intended use.
B) File plans for layout with Building Department and secure approval.
C) Obtain all necessary permits and pay all assessments and fees.
D) Detailed plans approved and stamped by architect or engineer, if necessary.
SITE PREPARATION - Seller has examined all of the plans and specifications of
Buyer and Builder, and Seller has verified that all of the following will be
done by Buyer properly for a fully functioning and operating facility. Seller
also agrees to monitor the construction and installation at the site, including
any modifications or alterations, so as to assure that the facility will be
appropriate for the purposes intended,
A) Site Clearing, grading, and/or leveling.
B) Excavation and concrete per conveyor,correlate and/or reclaim plans per
latest slab plans.
C) Excavation and asphalt paving site.
D) Utilities available (gas, water, electric, and sewer.)
E) Provide all electric service and metering equipment including
necessary poles and bring electric service lines into building and connect to
main disconnect.
F) Provide all electrical plans if motor control center is purchased from
manufacturer.
G) Oil tank with fill line and supply line from tank to equipment.
H) Gas supply line from main to and including the regulator and meter
(normally by utility company) and piping from meter to equipment.
I) Line from water main to water meter(including meter cost) and stub-ups
and/or lines required to connect to equipment (or to pelletized unit if
supplied by manufacturer.)
J) Stub-up sewer service and run drain lines from conveyor through to reclaim
pit.
K) Furnish and erect signs (in addition to those signs being finished and
installed by Seller.)
L) Sign wiring (in addition to sign wiring being furnished and installed by
Seller.)
M) Yard wiring and fighting for same.
N) Supply and Install conveyor mounting angle to concrete.
O) Free access to site and sufficient opening for moving equipment into
place.
P) Any modification from standard plans required by special codes.
Q) Special arches or Plumbing required by the addition of water
conditioning equipment.
ERECTION--SELLER'S RESPONSIBILITY.
A) Unloading from rail car and/or truck or trailer.
B) Inspect shipment for damage or shortage, and freight damage must be filed at
destination.
C) Uncrating and unpacking.
D) Moving on and placement of equipment.
E) Welding conveyor in place.
F) Lagging or bolting machinery slab to floor.
G) Bolt equipment parts together where necessary.
H) All water plumbing connections between equipment
I) All hydraulic and air line connections between equipment.
J) Clean-up crating, packing and erection debris
K) Installation of all equipment and goods so as to operate as a complete and
fully functioning car wash.
L) Inspect complete installation.
INSTALLATION-- Seller has examined all of the plans and specifications of Buyer
and Builder, and Seller has verified that all of the following will be done by
Buyer properly for a fully functioning and operating facility. Seller also
agrees to monitor the construction and installation at the site, including any
modifications or alterations, and to coordinate with the Builder to assure that
either the Buyer or the Builder is continuing to provide for the following.
A) Provide electrical hookup from panel to equipment.
B) All water and plumbing connections from stub-up to equipment.
C) All hydraulic line and air line connections from sources to equipment.
D) All connections from oil supply line or gas meter to equipment.
E) Sewer vents.
F) Provide, install and connect adequate heater vents.
G) Supply and install exhaust fans.
H) Furnish steel cover plates for pits, including reclaim conveyor.
PLANS AND DRAWINGS--SELLER'S RESPONSIBILITY.
A) Summary Sheets with equipment dimensions, shop drawings and layout drawings.
START-UP--SELLER'S RESPONSIBILITIES.
A) Inspect complete installation.
B) Assist in start-up and washing test cars.
C) Complete necessary adjustments to equipment.
D) Check pressure of hydraulic units.
E) Complete start-up check sheet.
F) Assist with technical assistance at commencement of operation.
WARRANTY AND SERVICES--SELLER'S RESPONSIBILITY.
A) Provide service and maintenance manuals.
B) Provide warranty instructions and procedures.
C) Perform periodic warranty check at least once every 30 days.
D) One (1) year parts and service warranty, except that labor costs shall be
covered for six (6) months.
Seller confirms that Seller has examined the plans and specifications of Buyer
and the Builder, and that the layout of the building and equipment and location
of utility connections will be according to the manufacturer's recommended
specifications and layouts. Seller agrees to monitor the construction process
and to coordinate with the Builder prior to, during and upon the completion of
the building to assure that the building, installation and erection, including
any modifications of alterations, will be in accordance with the provisions
hereof, and will be satisfactory for the purposes intended. Seller acknowledges
that the Buyer has virtually no experience in construction of a car wash, and
that the Buyer is relying on Sellers advice and expertise in this matter. Buyer
acknowledges that the Buyer is purchasing a touch free car wash and that
therefore vehicles utilizing the facility will require more prep work than
otherwise.
Buyer and Seller agree to the terms of this contract including the references to
Exhibit A which is attached hereto.
Seller__________________________ Buyer_______________________________
By:______/s/____________________ By_/s/ Rachel Steele________________
As President of Swifty Carwash &
Quik-Lube, Inc.
AIA DOCUMENT A101-1997
Standard Form of Agreement Between Owner and Contractor
where the basis of payment is a STIPULATED SUM
AGREEMENT made as of the Twenty-Fourth day of April in the year Nineteen Hundred
Ninety-Eight (In words, indicate day, month and year)
This document has important legal consequences. Consultation with an attorney is
encouraged with respect to its completion or modification. AIA Documentation
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.
BETWEEN The Owner: Swifty Carwash & Quik Lube, Inc.
(Name, address and other information) 17521 Crawley Road
Odessa, Florida 33556
And the Contractor: Brandon Construction Company
(Name, address and other information) 557 U.S. Alternate 19
Palm Harbor, FL. 34683
The Project is: Swifty Carwash & Quik-Lube, Inc.
(Name, and location) U.S. 19 North
Palm Harbor, FL. 34684
The Architect is: Oliveri Architects
(Name, address and other information) 32845 U.S. Hwy. 19, Suite 200
Palm Harbor , FL. 34684-3123
The Owner and Contractor agree as follows.
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Copyright1915,1918, 1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,(c)1997 by
The American Institute of Architects. Reproduction of this material herein or
substantial quotation of its provisions without permission of the AIA violates
the copyright laws of the United States and will subject the violator to legal
prosecution. WARNING: Unlicensed photocopying violates U.S. copyright laws and
will subject the violator to legal prosecution.
<PAGE>
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 supercedes prior negotiations,
representations or agreements, either written or oral. An enumeration of the
Contract Documents, other than Modifications, appears in Article 8.
ARTICLE 2 THE WORK OF THIS CONTRACT
The contractor shall fully execute the Work described in the Contract Documents,
except to the extent specifically indicated on the Contract Documents to be the
responsibility of others.
ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement of the Work shall be the date of this Agreement
unless a different date is stated below or provision is made for the date to
be fixed in a notice to proceed issued by the Owner.
(Insert the date of commencement if it differs from the date of this Agreement
or, if applicable, state that the date will be fixed in a notice to proceed.)
Five (5) working days from receipt of all permits and Signed contract.
If, prior to the commencement of the Work, the Owner requires time to file
mortgages, mechanic's liens and other security interests, the Owner's time
requirement shall be as follows:
3.2 The Contract Time shall be measured from the date of commencement.
3.3 The Contractor shall achieve Substantial Completion of the entire Work
not later than Approximately 115 days from the date of commencement, or as
follows:
(Insert number of calendar days. Alternatively, a calendar date may be used when
coordinated with the date of commencement. Unless stated elsewhere in the
Contract Documents, insert any requirements for earlier Substantial Completion
of certain portions of the Work.)
subject to adjustments of this Contract Time as provided in the Contract
Documents. (Insert provisions, if any, for liquidated damages relating to
failure to complete on time or for bonus payments for early completion of the
Work.)
ARTICLE 4 CONTRACT SUM
4.1 The owner shall pay the Contractor the Contract Sum in current funds for
the Contractor's performance of the contract. The Contract Sum shall be Five
Hundred Fourteen Thousand Sixteen Dollars($514,016) *subject to additions
and deductions as provided in the Contract Documents. See attached Cost
Breakdown.
4.2 The Contract Sum is based upon the following alternates, if any, which
are described in the Contract Documents and are hereby accepted by the
Owner: (State the numbers or other identification of accepted alternate. 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 alternatives
showing the amount for each and the date when that amount expires.)
4.3 Allowances if any, are as follows:
Site Wall $14,250.00
Deep Well 1,500.00
Wall underdrain and tie-in 4,000.00
Permit and Impacts 39,000.00
Signage 15,000.00
Any cost in excess of allowance budget shall be added by Change Order
at cost plus 10% O.H. & Fee.
ARTICLE 5 PAYMENTS
5.1 PROGRESS PAYMENTS
5.1.1 Based upon Applications for Payment submitted to the Architect by
the Contractor and Certificates for Payment issued by the
Architect, the Owner shall make progress payments on account of the
Contract Sum to the Contractor as provided below and elsewhere in
the Contract Documents.
5.1.2 The period covered by each Application for Payment shall be
done one calendar month ending on the last day of the month, or as
follows.
5.1.3 Provided that an Application for Payment is received by the
Architect not later than the 30 day of a month, the Owner shall
make payment to the Contractor not later than the 10 day of the
following month. If an Application for Payment is received by the
Architect after the application date fixed above, payment shall be
made by the Owner not later than 10 days after the Architect
receives the Application for Payment.
5.1.4 Each Application for Payment shall be based on the most recent
schedule of values submitted by the Contractor in accordance with the
Contract Documents. The schedule of values shall allocate the entire
Contract Sum among the various portions of the Work. The schedule of
values shall be prepared in such form and supported by such data to
substantiate its accuracy as the Architect may require. This
schedule, unless objected to by the Architect, shall be used as a
basis for reviewing the Contractor's Applications for Payment.
5.1.5 Applications for Payment shall indicate the percentage of completion
of each portion of the Work as of the end of the period covered by
the Application for Payment.
5.1.6 Subject to other provisions of the Contract Documents. the
amount of each progress payment shall be computed as follows: 1. Take
that portion of the Contract Sum properly allocable to completed Work
as determined by multiplying the percentage completion of each portion
of the Work by the share of the Contract Sum allocated to that portion
of the Work in the schedule of values, less retainage of * Five
percent(5%). Pending final determination of cost to the Owner of
changes in the Work, amounts not on dispute shall be included as
provided in subparagraph 7.3.8 of AIA Document A201-1997; 2.Add that
portion of the Contract Sum properly allocable to materials and
equipment delivered and suitably stored at the site for subsequent
incorporation in the completed construction (or if approved in advance
by the Owner, suitably stored off the site at a location agreed upon
in writing), less retainage of * Five percent (5%); 3 Subtract the
aggregate of previous payments made by the Owner and 4. Subtract
amounts if any for which the Architect has withheld or nullified a
Certificate for Payment as provided in Paragraph 9.5 of AIA Document
A101-1997. *No retainage of Permit-Impact Fees, and Signage line items
5.1.7 The progress payment amount determined in accordance with
Subparagraph 5.1.6 shall be further modified under the following
circumstances: 1. Add, upon Substantial Completion of the Work a sum
sufficient to increase the total payments to the full amount of the
Contract Sum, less such amounts as the Architect shall determine for
incomplete Work, retainage applicable to such work and unsettled
claims; and (Subparagraph 9.8.5 of AIA Documents A201-1997 requires
release of applicable retainage upon Substantial Completion of Work
with consent of surety, if any.) 2. Add, if final completion of the
Work if thereafter materially delayed through no fault of the
Contractor any additional amounts payable in accordance with
Subparagraph 9.10.3 of A101 of AIA Document A201-1997.
5.1.8 Reduction or limitation of retainage, if any, shall be as
follows: (If it is intended, prior to Substantial Completion of the
entire Work, to reduce or limit the retainage resulting from the
percentages inserted in Clauses 5.1.6.1 and 5.1.6.2 above, and this is
not explained elsewhere in the Contract Documents, insert here
provisions for such reduction or limitation.)
5.1.9.Except with the Owner's prior approval, the Contractor shall not make
advance payments to suppliers for materials or equipment which have not
been delivered and stored at the site.
5.2 FINAL PAYMENT
5.2.1 Final payment, constituting the entire unpaid balance of the Contract
Sum, shall be made by the Owner to the Contractor when:
1. the Contractor has fully performed the Contract except for the
Contractor's responsibility to correct Work as provided in
Subparagraph 12.2.2 of AIA Document A201-1997, and to satisfy other
requirements, if any, which extend beyond final payment; and 2. a
final Certificate for Payment has been issued by the Architect.
5.2.2 The Owner's final payment to the Contractor shall be made no later
than 30 days after the issuance of the Architect's final Certificate
for Payment, or as follows. Final payment is due when original
punch-list is complete. All punch-out items added after original list
is comprised shall be warranty items, and not effect final payment.
ARTICLE 6 TERMINATION OR SUSPENT1ON
6.1 The Contract may be terminated by the Owner or the Contractor as
provided in Article 14 of AIA Document A201-1997.
6.2 The Work may be suspended by the Owner as provided in Article 14 of AIA
Document A201-1997.
ARTICLE 7 MISCELLANEOUS PROVISIONS
7.1 Where reference is made in this Agreement to a provision of AIA
Document A201-1997 or another Contract Document, the reference refers
to that provision as amended or supplemented by other provisions of
the Contract Documents.
7.2 Payments due 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%
(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.)
7.3 The Owner's representative is:
(Name, address and other information)
7.4 The Contractor's representative is: Mark Matheny-Project Coordinator
(Name, Address and other information) Brandon Construction Company
557 U.S. Alternate 19
Palm Harbor, FL. 34683
7.5 Neither the Owner's nor the Contractor's representative shall be
changed without ten days' written notice to the other party.
7.6 Other provisions: All Change Orders shall include 10% O.H. & Fee.
ARTICLE 8 ENUMERATION OF CONTRACT
8.1 The Contract Documents. except for Modifications issued after
execution of this Agreement, are enumerated as follows:
8.1.1 The Agreement is this executed 1997 edition of the Standard Form of
agreement Between Owner and Contractor, AIA Document A101-1997
8.1.2 The General Conditions are the 1997 edition of the General
Conditions of the Contract for Construction, AIA Document
A201-1997.
8.1.3 The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated N/A ,and are as follows:
Document Title Pages
N/A
8.1.4 The Specifications are those contained in the Project Manual
dated as in subparagraph 8.l.3, and are as follows: (Either,
list the Specifications here or refer to an exhibit attached
to this Agreement.)
Section Title Pages
See Plans
8.1.5 The Drawings are as follows, and are dated unless a different date is
shown below: (Either list the Drawings here or refer to an exhibit
attached to this Agreement.)
Number Title Date
See Attached
8.1.6 The Addenda, if any, are as follows:
Number Date Pages
None
Portions of Addenda relating to bidding requirements are not Part of the
Contract Documents unless the bidding requirements are also enumerated in this
Article 8.
8.1.7 Other documents, if any, forming part of the Contract Documents are as
follows:
(list here any additional documents that are intended to form part of the
Contract Documents. AIA Document A201-1997 provides that bidding requirements
such as advertisement or invitation to bid, instructions to Bidders, sample
forms and the Contractors 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.)
Survey and Testing by Owner
No wire shelving
No Security Phones, Fire Alarm
No Carwash, Auto Lube, or other business equipment
No Bond, Builder's Risk or owner Liability Insurance
Connections of Owner supplied equipment is limited to those shown on Plans
Cost Breakdown
This Agreement is entered into as of the day and year first written above and is
executed in at least three original copies, of which one is to be delivered to
the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
_______/s/ Rachel Steele, President____ _______/s/ D. B. President_______
OWNER (Signature) CONTRACTOR(Signature)
Rachel Steele David L. Brandon, President
(Printed name and title) (printed name and title)
1997 AIA AIA DOCUMENT A101-1997 OWNER-CONTRACTOR AGREEMENT The American
Institute of Architects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292
WARNING; Unlicensed photocopying violates U.S. copyright laws and will subject
the violator to legal prosecution.
<PAGE>
INDEX OF DRAWINGS
SHEET NO. DESCRIPTION DATE REVISION
- -------- ----------- ---- -------
1 of 5 Cover Sheet 3/6/98
2 of 5 Paving, Grading, & Drainage 2/98 3/13/98
3 of 5 Landscape Plan 11/97
4 of 5 Typical Sections & Details 12/97 3/2/97
5 of 5 Lift Station Details 12/97
Al Cover Sheet 2/2/98
A2 Site Plan 2/2/98
A3 Floor Plan 2/2/98
A4 Roof Plan 2/2/98
A5 Exterior Elevations2/2/98
A6 Wall Sections & Details 2/2/98
A7 Interior Elevations & Details 2/2/98
A8 Schedules, Notes, & Details 2/2/98
A9 Specifications 2/2/98
S-1 Foundation/Floor Framing Plan 2/2/98
S-2 Roof Framing Plans 2/2/98
S-3 Details 2/2/98
S-4 Details 2/2/98
S5 Details 2/2/98
S6 Specifications 2/2/98
P1 Legend, Notes, Schedules & Details 2/2/98
P2 Plumbing Floor Plan 2/2/98
M1 Mechanical Legend, Notes & Schedules 2/2/98
M2 Mechanical Floor Plan 2/2/98
M3 Mechanical Details 2/2/98
El Legend, Lighting Fixture Schedule &
Specifications 1/7/97
E2 Details 2/2/98
E3 Site Plan - Lighting, Power &
Communications 1/7/97
E4 Floor Plan - Lighting 2/2/98
E5 Floor Plan - Power & Communications 2/2/98
E6 Panel Loads, Power Riser Diagram 2/2/98
<PAGE>
BRANDON CONSTRUCTION COMPANY COMMERCIAL ESTIMATE
SWIFTY CARWASH & QUICK LUBE EST#346
24 Apr 98
- --------------------------------------------------------------------------------
CSI DESCRIPTION NOTES SUB BID COST/SF
- --------------------------------------------------------------------------------
01000 GENERAL REQUIREMENTS 0.00
18,289 3.59
SURVEYING/TESTING BY OWNER 0 0.00
0.00
02000 SITEWORK 58,095 11.39
0.00
IMPORT FILL 60,094 11.78
0.00
SITE WALL (NOT AS SPEC'D) ALLOWANCE 14,250 2.79
0.00
LANDSCAPE 4,690 0.92
0.00
BAHIA SOD 2,860 0.56
0.00
IRRIGATION 3,100 0.61
0.00
DEEP WELL ALLOWANCE 1,500 0.29
0.00
SITE CONCRETE 1,280 0.25
0.00
WALL UNDERDRAIN ALLOWANCE 4,000 0.78
CONNECT TO STORM INCL 0.00
0.00
TERMITE CONTROL 650 0.13
0.00
03000 CONCRETE - LABOR 33,200 6.51
0.00
CONCRETE - MAT'L 13,989 2.74
0.00
04000 MASONRY-LABOR 16,800 3.29
0.00
MASONRY - MAT'L 9,764 1.91
0.00
05000 STRUCTURAL STEEL 27,581 5.41
STAIRS/RAILING INCL 0.00
0.00
06000 FRAMING-LABOR 2,400 0.47
0.00
FRAMING-MATERIALS 3,016 0.59
0.00
CABINETRY ALLOWANCE 3,000 0.59
0.00
07000 MOD BIT ROOFING 18,205 3.57
RIGID INSULATION INCL 0.00
METAL ROOFING INCL 0.00
FLASHING/SHT METALS INCL 0.00
0.00
WATERPROOFING 3,000 0.59
0.00
08000 HM DOORS/FRAMES 2,785 0.55
0.00
FINISH HARDWARE 1,334 0.26
0.00
DOOR/HDWR INSTALL 800 0.16
0.00
OVERHEAD DOORS VALUE ENG'D 8,671 1.70
0.00
STOREFRONT VALUE ENG'D 5,590 1.10
ALUM ENTRIES INCL 0.00
INT GLAZING INCL 0.00
0.00
09000 STUCCO 17,500 3.43
LATH/ACCESSORIES INCL 0.00
0.00
DRYWALL l5,088 2.96
METAL FRAMING INCL 0.00
RIGID INSULATION INCL 0.00
R-11 WALL--BATTS INCL 0.00
0.00
ACOUSTICAL CEILINGS 2,346 0.46
R-30 BATT INSULATION INCL 0.00
0.00
VCT 1,677 0.33
VINYL BASE INCL 0.00
0.00
PAINTING 6,265 1.23
0.00
SPECIAL COATINGS NONE SHOWN 0 0.00
0.00
10000 TOILET ACCESSORIES 675 0.13
0.00
FIRE EXTINGUISHERS 150 0.03
0.00
WIRE SHELVING NONE SHOWN 0 0.00
0.00
11000 CARWASH EQUIPMENT BY OWNER 0 0.00
AUTO LUBE EQUIPMENT 0 0.00
0.00
15000 PLUMBING 8,134 1.59
0.00
HVAC 7,373 1.45
DUCTWORK INCL 0.00
EXH FANS/VENTING INCL 0.00
0.00
16000 ELECTRICAL VALUED ENG'D 37,850 7.42
FIXTURES INCL 0.00
ELEC METER INCL 0.00
CORD REELS INCL 0.00
PHONE CONDUIT (BLDG) INCL 0.00
0.00
SITE LIGHTING VALUED ENG'D INCL 0.00
CONCRETE POLES INCL 0.00
PHONE CONDUIT (SITE) INCL 0.00
SECURITY/MISC BY OWNER 0 0.00
- --------------------------------------------------------------------------
SUBTOTAL 416,000
GEN LIAB 1,248 0.3%
------------ --------- ---------
SUBTOTAL 417,248
OVERHEAD 20,862 5%
------------ --------- ---------
SUBTOTAL 438,110
GC FEE 21,906 5%
------------ --------- ---------
SUBTOTAL 460,016
PERMITS/FEES 39,000 ALLOW
SIGNAGE 15,000 ALLOW
------------ --------- ---------
TOTAL BID 514,016
------------ --------- ---------
PER SF/.SQ PT 100.79 5,100
------------ -------- ---------
ALL INFORMATION CONTAINED IN THIS CONFIDENTIAL COST ESTIMATE
IS SOLE PROPERTY OF BRANDON CONSTRUCTION COMPANY GENERAL
CONTRACTORS, INC. ALL RIGHTS RESERVED/COPYRIGHT 1998
<PAGE>
BRANDON CONSTRUCTION COMPANY
CHANGE ORDER
Project: Swifty Carwash & Quick Change Order Number: one(1)
Lube, Inc.
32663 U.S. Hwy. 19
Palm Harbor, FL. 34684
To: Brandon Construction Co. Initiation Date- July 1, 1998
557 U.S. Alternate 19
Palm Harbor FL. 34683 Contract For:
Contract Date: April 24,, 1998
You are directed to make the following changes in this Contract-
(SEE ATTACHED SHEET)
Signature of the Contractor indicates his agreement herewith, including any
adjustment in the Contract Sum or Contract Time.
The original Contract Sum was $5l4,0l6.00 Net change by previously authorized
Change Orders $-0- The Contract Sum prior to this Change Order was $514,016.00
The Contract Sum will be increased by this Change Order 11,470.00 The new
Contract Sum including this Change Order will be 525,486.00 The Contract Time
will be unchanged
The Date of Substantial Completion as of the date of the Change Order therefore
is as per contract schedule.
BRANDON CONSTRUCTION SWIFTY-CARWASH & QUICK LUBE
Contractor
557 US ALT 19
Palm Harbor, FL 34683
By:_____/s/ David Brandon____ By:__/s/ Rachel Steele___________
Date:______10/26/98__________ Date:_____10/19/98_______________
SWIFTY CARWASH & QUICK LUBE, INC.
CHANGE ORDER #1
- -Soil testing to-date $161.00
- -Dewatering under slab 2,320.00
- -Membrane under slab 2,500.00
- -Additional excavation/rock/and pumping 2,580.00
- -Additional concrete for over dig 968.00
- -Plate compactor rental 98.00
- -Additional month form rental 1,800.00
--------
Sub-Total $10,427.00
O.H. & Fee 1,043.00
TOTAL ADD $11,470.00
<PAGE>
BRANDON CONSTRUCTION COMPANY CHANGE ORDER
Project:Swifty Car Wash & Quik Lube, Inc. Change Order Number: Two (2)
32663 U.S. Hwy. 19
Palm Harbor, FL. 34684
To: Brandon Construction Co Initiation Date: September 30, 1998
557 U.S. Alternate 19
Palm Harbor, FL. 34683 Contract For:
Contract Date: April 24, 1998
You are directed to make the following changes in this Contract:
(SEE ATTACHED SHEETS)
Signature of the Contract indicates his agreement herewith, including any
adjustment in the Contract Sum or Contract Time.
The original Contract Sum was ........................................$ 514,016
Net change by previously authorized Change Orders................$ 11,470 The
Contract Sum prior to this Change Order was...................$ 525,486 The
Contract Sum will be increased by the Change Order..........$ 20,132 The
Contract Time will be unchanged
The Date of Substantial Completion as of the date of the Change Order
therefore or as per contract schedule.
Swifty Carwash & Quik-Lube
Brandon Construction Owner
Contractor
557 US ALT 19
Palm Harbor, FL 34683
By:_____________________________ By:_____________________________
Date:___________________________ Date:___________________________
T H E A M E R I C A N I N S T I T U T E OF A R C H I T E C T S
------------------------------------------------------------------------
AIA Document B141
Standard Form of Agreement Between
Owner and Architect
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES, CONSULTATION WITH AN
ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.
------------------------------------------------------------------------
AGREEMENT made as of the 15th day of August in the year of Nineteen Hundred and
ninety seven BETWEEN the owner:
(Name and address)
Steele Holdings, Inc.
17521 Crawley Rd., Odessa, Florida 33556
and the Architect:
(Name and address)
Oliveri Architects,
32845 US Highway 19, Suite 200, Palm Harbor, Florida 34684
For the following Project:
(include detailed description of Project, location, address and scope.)
The design of a new free standing, one-story car wash which includes a one
hundred foot (100') long wash tunnel, two bay oil change facility, three bay
vacuum stations, three bay detail stations and support retail area with office,
waiting and toilet facilities. This new facility is to be located on U.S. 19 in
Palm Harbor, Florida.
The Owner and Architect agree as set forth below.
- ------------------------------------------------------------------------
Copyright 1917, 1926, 1948, 1951, 1953, 1958, 1961, 1963, 1966, 1967,
1970, 1974, 1977, (c)1987 by The American Institute of Architects, 1735
New York Avenue, N.W., Washington, D.C. 20006. Reproduction of the
material herein or substantial quotation of its provisions without
written permission of the AIA violates the copyright laws of the United
States and will be subject to legal prosecution.
TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT
ARTICLE 1
ARCHITECT'S RESPONSIBILITIES
1.1 ARCHITECT'S SERVICES
1.1.1 The Architect's services consist of those services performed by the
Architect, Architect's employees and Architect's consultants as enumerated in
Articles 2 and 3 of this Agreement and any other services included in Article
12.
1.1.2 The Architect's services shall be performed as expeditiously as is
consistent with professional skill and care and the orderly progress of the
Work. Upon request of the Owner, the Architect shall submit for the Owner's
approval a schedule for the performance of the Architect's services which may be
adjusted as the Project proceeds, and shall include allowances for periods of
time required for the Owner's review and for approval of submissions by
authorities having jurisdiction over the Project. Time limits established by
this schedule approved by the Owner shall not, except for reasonable cause, be
exceeded by the Architect or Owner.
1.1.3 The services covered by this Agreement are subject to the time limitations
contained in Subparagraph 11.5.1
ARTICLE 2
SCOPE OF ARCHITECT'S BASIC SERVICES
2.1 DEFINITION
2.1.1 The Architect's Basic Services consist of those described in Paragraphs
2.2 through 2.6 and any other services identified in Article 12 as part of Basic
Services, and include normal structural, mechanical and electrical engineering
services.
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The Architect shall review the program furnished by the Owner to ascertain
the requirements of the Project and shall arrive at a mutual understanding of
such requirements with the Owner.
2.2.2 The Architect shall provide a preliminary evaluation of the Owner's
program, schedule and construction budget requirements, each in terms of the
other, subject to the limitations set forth in Subparagraph 5.2.1.
2.2.3 The Architect shall review with the Owner alternative approaches to design
and construction of the Project.
2.2.4 Based on the mutually agreed-upon program, schedule and construction
budget requirements, the Architect shall prepare, for approval by the Owner,
Schematic Design Documents consisting of drawings and other documents
illustrating the scale and relationship of Project components.
2.2.5 The Architect shall submit to the Owner a preliminary estimate of
Construction Cost based on current area, volume or other unit costs.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments
authorized by the Owner in the program, schedule or construction budget, the
Architect shall prepare, for approval by the Owner, Design Development Documents
consisting of drawings and other documents to fix and describe the size and
character of the Project as to architectural, structural, mechanical and
electrical systems, materials and such other elements as may be appropriate.
2.3.2 The Architect shall advise the Owner of any adjustments to the preliminary
estimate of Construction Cost.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved Design Development Documents and any further
adjustments in the scope or quality of the Project or in the construction budget
authorized by the owner, the Architect shall prepare, for approval by the Owner,
Construction Documents consisting of Drawings and Specifications setting forth
in detail the requirements for the construction of the Project.
2.4.2 The Architect shall assist the Owner in the preparation of the necessary
bidding information, bidding forms, the Conditions of the Contract, and the form
of Agreement between the Owner and Contractor.
2.4.3 The Architect shall advise the Owner of any adjustments to previous
preliminary estimates of Construction Cost indicated by changes in requirements
or general market conditions.
2.4.4 The Architect shall assist the Owner in connection with the Owner's
responsibility for filing documents required for the approval of governmental
authorities having jurisdiction over the Project.
2.5 BIDDING OR NEGOTIATION PHASE
2.5.1 The Architect, following the Owner's approval of the Construction
Documents and of the latest preliminary estimate of Construction Cost, shall
assist the Owner in obtaining bids or negotiated proposals and assist in
awarding and preparing contracts for construction.
2.6 CONSTRUCTION PHASE ADMINISTRATION OF THE CONSTRUCTION CONTRACT
2.6.1 The Architect's responsibility to provide Basic Services for the
Construction Phase under this Agreement commences with the award of the Contract
for Construction and terminates at the earlier of the issuance to the Owner of
the final Certificate for Payment or 60 days after the date of Substantial
Completion of the Work.
2.6.2 The Architect shall provide administration of the Contract for
Construction as set forth below and in the edition of AIA Document A201, General
Conditions of the Contract for Construction, current as of the date of this
Agreement, unless otherwise provided in this Agreement.
2.6.3 Duties, responsibilities and limitations of authority of the Architect
shall not be restricted, modified or extended without written agreement of the
Owner and Architect with consent of the Contractor, which consent shall not be
unreasonably withheld.
2.6.4 The Architect shall be a representative of and shall advise and consult
with the Owner (1) during construction until final payment to the Contractor is
due, and (2) as an Additional Service at the Owner's direction from time to time
during the correction period described in the Contract for Construction. The
Architect shall have authority to act on behalf of the Owner only to the extent
provided in this Agreement unless otherwise modified by written instrument.
2.6.5 The Architect shall visit the site at intervals appropriate to the stage
of construction or as otherwise agreed by the Owner and Architect in writing to
become generally familiar with the progress and quality of the Work completed
and to determine in general if the Work is being performed in a manner
indicating that the Work when completed will be in accordance with the Contract
Documents. However, the Architect shall not be required to make exhaustive or
continuous on-site inspections to check the quality or quantity of the Work. On
the basis of on-site observations as an architect, the Architect shall keep the
Owner informed of the progress and quality of the Work, and shall endeavor to
guard the Owner against defects and deficiencies in the Work.
2.6.6 The Architect shall not have control over or charge of and shall not be
responsible for construction means, methods, techniques, sequences or
procedures, or for safety precautions and programs in connection with the Work,
since these are solely the Contractor's responsibility under the Contract for
Construction. The Architect shall not be responsible for the contractor's
schedules or failure to carry out the Work in accordance with the Contract
Documents. The Architect shall not have control over or charge of acts or
omissions of the Contractor, Subcontractors, or their agents or employees, or of
any other persons performing portions of the Work.
2.6.7 The Architect shall at all times have access to the Work wherever it is in
preparation or progress.
2.6.8 Except as may otherwise be provided in the Contract Documents or when
direct communications have been specially authorized, the Owner and Contractor
shall communicate through the Architect. Communication by and with the
Architect's consultants shall be through the Architect.
2.6.9 Based on the Architect's observations and evaluations of the Contractor's
Applications for Payment, the Architect shall review and certify the amounts due
the Contractor.
2.6.10 The Architect's certification for payment shall constitute a
representation to the Owner, based on the Architect's observations at the site
as provided in Subparagraph 2.6.5 and on the data comprising the Contractor's
Application for Payment, that the Work has progressed to the point indicated and
that, to the best of the Architect's knowledge, information and belief, quality
of the Work is in accordance with the Contract Documents. The foregoing
representations are subject to an evaluation of the Work for conformance with
the Contract Documents upon Substantial Completion, to results of subsequent
test and inspection, to minor deviation from the Contract Documents correctable
prior to completion and to specific qualifications expressed by the Architect.
The issuance of a Certificate for Payment shall further constitute a
representation that the Contractor is entitled to payment in the amount
certified. However, the issuance of a Certificate for Payment shall not be a
representation that the Architect has (1) made exhaustive or continuous on-site
inspections to check the quality or quantity of the Work, (2) reviewed
construction means, methods, techniques, sequences or procedures, (3) reviewed
copies of requisitions received from Subcontractors and materiel suppliers and
other data requested by the Owner to substantiate the Contractor's right to
payment or (4) ascertained how or for what purpose the Contractor has used money
previously paid on account of the Contract Sum.
2.6.11 The Architect shall have authority to reject Work which does not conform
to the Contract Documents. Whenever the Architect considers it necessary or
advisable for implementation of the intent of the Contract Documents, the
Architect will have authority to require additional inspection or testing of the
Work in accordance with the provisions of the Contract Documents, whether or not
such Work is fabricated, installed or completed. However, neither this authority
of the Architect nor a decision made in good faith either to exercise or not to
exercise such authority shall give rise to a duty or responsibility of the
Architect to the Contractor, Subcontractors, material and equipment suppliers,
their agents or employees or other persons performing portions of the Work.
2.6.12 The Architect shall review and approve or take other appropriate action
upon Contractor's submittals such as Shop Drawings, Product Data and Samples,
but only for the limited purpose of checking for conformance with information
given and the design concept expressed in the Contract Documents. The
Architect's action shall be taken with such reasonable promptness as to cause no
delay in the Work or in the construction of the Owner or of separate
contractors, while allowing sufficient time in the Architect's professional
judgment to permit adequate review. Review of such submittals is not conducted
for the purpose of determining the accuracy and completeness of other details
such as dimensions and quantities or for substantiating instructions for
installation or performance of equipment or systems designed by the Contractor,
all of which remain the responsibility of the Contractor to the extent required
by the contract Documents The Architect's review shall not constitute approval
of safety precautions or, unless otherwise specifically stated by the Architect,
of construction means, methods, techniques, sequences or procedure. The
Architect's approval of a specific item shall not indicate approval of an
assembly of which the item is a component. When professional certification of
performance characteristics of materials, systems or equipment is required by
the Contract Documents, the Architect shall be entitled to rely upon such
certification to establish that the materials, systems or equipment will meet
the performance criteria required by the Contract Documents.
2.6.13 The Architect shall prepare Change Orders and Construction Change
Directives, with supporting documentation and data necessary by the Architect as
provided in Subparagraphs 3.1.1 and 3.3.3, for the Owner's approval and
execution in accordance with the Contract Documents, and may authorize minor
changes in the Work not involving an adjustment in the Contract Sum or an
extension of the Contract Time which are not inconsistent with the intent of the
Contract Documents.
2.6.14 The Architect shall conduct inspections to determine the date or dates of
Substantial Completion and the date of final completion, shall receive and
forward to the Owner and the Owner's review and records written warranties and
related documents required by the Contract Documents and assembled by the
Contractor, and shall issue a final Certificate for Payment upon compliance with
the requirements of the Contract Documents
2.6.15 The Architect shall interpret and decide matters concerning performance
of the Owner and Contractor under the requirements of the Contract Documents on
written request of either the Owner or Contractor. The Architect's response to
such requests shall be made with reasonable promptness and within any time
limits agreed upon.
2.6.16 Interpretations and decisions of the Architect shall be consistent with
the intent of and reasonably inferable from the Contract Documents and shall be
in writing or in the form of drawings. When making such interpretations and
initial decisions, the Architect shall endeavor to secure faithful performance
by both Owner and Contractor, shall not show partiality to either, and shall not
be liable for results of interpretations or decisions so rendered in good faith.
2.6.17 The Architect's decisions on matters relating to aesthetic effect shall
be final if consistent with the intent expressed in the Contract Documents.
2.6.18 The Architect shall render written decisions within a reasonable time on
all claims, disputes or other matters in question between the Owner and
Contractor relating to the execution or progress of the Work as provided in the
Contract Documents.
2.6.19 The Architect's decisions on claims, disputes or other matters, including
those in question between the Owner and Contractor, except for those relating to
aesthetic effect as provided in Subparagraph 2.6.17, shall be subject to
arbitration as provided in this Agreement and in the Contract Documents.
ARTICLE 3
ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 are not included in Basic
Services unless so identified in Article 12, and they shall be paid for by the
Owner as provided in this Agreement, in addition to the compensation for Basic
Services. The services described under Paragraphs 3.2 and 3.4 shall only be
provided if authorized or confirmed in writing by the Owner. If services
described under Contingent Additional Services in Paragraph 3.3 are required due
to circumstances beyond the Architect's control, the Architect shall notify the
Owner prior to commencing such services. If the Owner deems that such services
described under Paragraph 3,3 are not required, the Owner shall give prompt
written notice to the Architect. If the Owner indicates in writing that all or
part of such Contingent Additional Services are not required, the Architect
shall have no obligation to provide those services.
3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES
3.2.1 If more extensive representation at the site than is described in
Subparagraph 2.6.5 is required, the Architect shall provide one or more Project
Representatives to assist in carrying out such additional on-site
responsibilities.
3.2.2 Project Representatives shall be selected, employed and directed by the
Architect, and the Architect shall be compensated therefor as agreed by the
Owner and Architect. The duties, responsibilities and limitations of authority
of Project Representatives shall be as described in the edition of AIA Document
B352 current as of the date of this Agreement, unless otherwise agreed.
3.2.3 Through the observations by such Project Representatives, the Architect
shall endeavor to provide further protection for the Owner against defects and
deficiencies in the Work, but the furnishing of such project representation
shall not modify the rights, responsibilities or obligations of the Architect as
described elsewhere in this Agreement.
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1 Making revisions in Drawings, Specifications or other documents when such
revisions are:
.1 inconsistent with approvals or instructions previously given by the
Owner, including revisions made necessary by adjustments in the
Owner's program or Project budget;
.2 required by the enactment or revision of codes, laws or regulations
subsequent to the preparation of such documents; or
.3 due to changes required as a result of the Owner's failure to render
decisions in a timely manner.
3.3.2 Providing services required because of significant changes in the Project
including, but not limited to, size, quality, complexity, the Owner's schedule,
or the method of bidding or negotiating and contracting for construction, except
for services required under Subparagraph 5.2.5.
3.3.3 Preparing Drawings, Specifications and other documentation and supporting
data, evaluating Contractor's proposals, and providing other services in
connection with Change Orders and Construction Change Directives.
3.3.4 Providing services in connection with evaluating substitutions proposed by
the Contractor and making subsequent revisions to Drawings, Specifications and
other documentation resulting therefrom.
3.3.5 Providing consultation concerning replacement of Work damaged by fire or
other cause during construction, and furnishing services required in connection
with the replacement of such Work.
3.3.6 Providing services made necessary by the default of the Contractor, by
major defects or deficiencies in the Work of the Contractor, or by failure of
performance of either the Owner or Contractor under the Contract for
Construction.
3.3.7 Providing services in evaluating an extensive number of claims submitted
by the Contractor or others in connection with the work.
3.3.8 Providing services in connection with a public hearing, arbitration
proceeding or legal proceeding except where the Architect is party thereto.
3.3.9 Preparing documents for alternate, separate or sequential bids or
providing services in connection with bidding, negotiation or construction prior
to the completion of the Construction Documents Phase.
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Providing analyses of the Owner's needs and programming the requirements
of the Project.
3.4.2 Providing financial feasibility or other special studies.
3.4.3 Providing planning surveys, site evaluations or comparative studies of
prospective sites.
3.4.4 Providing special surveys, environmental studies and submission required
for approvals of governmental authorities or others having jurisdiction over the
Project.
3.4.5 Providing services relative to future facilities, systems and equipment.
3.4.6 Providing services to investigate existing conditions or facilities or to
make measured drawings thereof.
3.4.7 Providing services to verify the accuracy of drawings or other information
furnished by the Owner.
3.4.8 Providing coordination of construction performed by separate contractors
or by the Owner's own forces and coordination of services required in connection
with construction performed and equipment supplied by the Owner.
3.4.9 Providing services in connection with the work of a construction manager
or separate consultants retained by the Owner.
3.4.10 Providing detailed estimates of Construction Cost.
3.4.11 Providing detailed quantity surveys or inventories of material ,
equipment and labor.
3.4.12 Providing analysis of owning and operating costs.
3.4.13 Providing interior design and other similar services required for or in
connection with the selection, procurement or installation of furniture,
furnishings and related equipment.
3.4.14 Providing services for planning tenant or rental spaces.
3.4.15 Making investigations, inventories of materials or equipment, or
valuations and detailed appraisals of existing facilities.
3.4.16 Preparing a set of reproducible record drawings showing significant
changes in the Work made during construction based on marked-up prints, drawings
and other data furnished by the Contractor to the Architect.
3.4.17 Providing assistance in the utilization of equipment or systems such as
testing, adjusting and balancing, preparation of operation and maintenance
manuals, training personnel for operation and maintenance, and consultation
during operation.
3.4.18 Providing services after issuance to the Owner of the final Certificate
for Payment, or in the absence of a final Certificate for Payment, more than 60
days after the date of Substantial Completion of the Work.
3.4.19 Providing services of consultants for other than architectural,
structural, mechanical and electrical engineering portions of the project
provided as a part of Basic Services.
3.4.20 Providing any other services not otherwise included in this Agreement or
not customarily furnished in accordance with generally accepted architectural
practice.
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 Owner shall provide full information regarding requirements for the Project,
including a program which shall set forth the Owner's objectives, schedule,
constraints and criteria, including space requirements and relationships,
flexibility, expandability, special equipment, systems and site requirements.
4.2 The Owner shall establish and update an overall budget for the Project,
including the Construction Cost, the Owner's other costs and reasonable
contingencies related to all of these costs.
4.3 If requested by the Architect, the Owner shall furnish evidence that
financial arrangements have been made to fulfill the Owner's obligations under
this Agreements.
4.4 The Owner shall designate a representative authorized to act on the Owner's
behalf with respect to the project. The Owner or such authorized representative
shall render decisions in a timely manner pertaining to documents submitted by
the Architect in order to avoid unreasonable delay in the orderly and sequential
progress of the Architect's services.
4.5 The Owner shall furnish surveys describing physical characteristics, legal
limitations and utility locations for the site of the Project, and a written
legal description of the site. The surveys and legal information shall include,
as applicable, grades and lines of streets, alleys, pavements and rights-of-way,
restrictions, easements, encroachments, zoning, deed restrictions, boundaries
and contours of the site; locations, dimensions and necessary data pertaining to
existing buildings, other improvements and trees; and information concerning
available utility services and lines, both public and private, above and below
grade, including inverts and depths. All the information on the survey shall be
referenced to a project benchmark.
4.6 The Owner shall furnish the services of geotechnical engineers when such
services are requested by the Architect. Such services may include but are not
limited to test borings, test pits, determinations of soil bearing values,
percolation tests, evaluations of hazardous materials, ground corrosion and
resistivity test, including necessary operations for anticipating subsoil
conditions, with reports and appropriate professional recommendations.
4.6.1 The Owner shall furnish the services of other consultants when such
services are reasonably required by the scope of the Project and are requested
by the Architect.
4.7 The Owner shall furnish structural, mechanical, chemical, air and water
pollution tests, tests for hazardous materials, and other laboratory and
environmental test, inspections and reports required by law or the Contract
Documents.
4.8 The Owner shall furnish all legal, accounting and insurance counseling
services as may be necessary at any time for the Project, including auditing
services the owner may require to verify the Contractor's Applications for
Payment or to ascertain how or for what purposes the Contractor has used the
money paid by or on behalf of the Owner.
4.9 The services, information, surveys and reports required by Paragraphs 4.5
through 4.8 shall be furnished at the Owner's expense, and the Architect shall
be entitled to rely upon the accuracy and completeness thereof.
4.10 Prompt written notice shall be given by the Owner to the Architect if the
Owner becomes aware of any fault or defect in the Project or nonconformance with
the Contract Documents.
4.11 The proposed language of certificates of certifications requested of the
Architect or Architect's consultants shall be submitted to the Architect for
review and approval at least 14 days prior to execution. The Owner shall not
request certifications that would require knowledge or services beyond the scope
of this Agreement.
ARTICLE 5
CONSTRUCTION COST
5.1 DEFINITION
5.1.1 The Construction Cost shall be the total cost or estimated cost to the
Owner of all elements of the Project designed or specified by the Architect.
5.1.2 The Construction Cost shall include the cost at current market rates of
labor and materials furnished by the Owner and equipment designed, specified,
selected or specially provided for by the Architect, plus a reasonable allowance
for the Contractor's overhead and profit. In addition, a reasonable allowance
for contingencies shall be included for market conditions at the time of bidding
and for changes in the Work during construction.
5.1.3 Construction Cost does not include the compensation of the Architect and
Architect's consultants, the costs of the land, rights-of-way, financing or
other costs which are the responsibility of the Owner as provided in Article 4.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of
Construction Cost and detailed estimates of Construction Cost, if any, prepared
by the Architect, represent the Architect's best judgment as a design
professional familiar with the construction industry. It is recognized, however,
that neither the Architect nor the Owner has control over the cost of labor,
materials or equipment, over the Contractor's methods of determining bid prices,
or over competitive bidding, market or negotiating conditions. Accordingly, the
Architect cannot and does not warrant or represent that bids or negotiated
prices will not vary from the Owner's Project budget or from any estimate of
Construction Cost or evaluation prepared or agreed to by the Architect.
5.2.2 No fixed limit of Construction Cost shall be established as a condition of
this Agreement by the furnishing, proposal or establishment of a Project budget,
unless such fixed limit has been agreed upon in writing and signed by the
parties hereto. If such a fixed limit has been established, the Architect shall
be permitted to include contingencies for design, bidding and price escalation,
to determine what materials, equipment, component systems and types of
construction are to be included in the Contract Documents, to make reasonable
adjustments in the scope of the Project and to include in the Contract Documents
alternate bids to adjust the Construction Cost to the fixed limit. Fixed limits,
if any, shall be increased in the amount of an increase in the Contract Sum
occurring after execution of the Contract for Construction.
5.2.3 If the Bidding or Negotiation Phase has not commenced within 90 days after
the Architect submits the Construction Documents to the Owner, any Project
budget or fixed limit of Construction Cost shall be adjusted to reflect changes
in the general level of prices in the construction industry between the date of
submission of the Construction Documents to the Owner and the date on which
proposals are sought.
5.2.4 If a fixed limit of Construction Cost (adjusted as provided in
Subparagraph 5.2.3) is exceeded by the lowest bona fide bid or negotiated
proposal, the Owner shall:
.1 give written approval of an increase in such fixed limit;
.2 authorize rebidding or renegotiating of the Project within a
reasonable time;
.3 if the Project is abandoned, terminate in accordance
with Paragraph 8.3; or
.4 cooperate in revising the Project scope and quality as required to
reduce the Construction Cost.
5.2.5 If the Owner chooses to proceed under Clause 5.2.4.4, the Architect,
without additional charge, shall modify the Contract Documents as necessary to
comply with the fixed limit, if established as a condition of this Agreement.
The modification of Contract Documents shall be the limit of the Architect's
responsibility arising out of the establishment of a fixed limit. The Architect
shall be entitled to compensation in accordance with this Agreement for all
services performed whether or not the Construction Phase is commenced.
ARTICLE 6
USE OF ARCHITECT'S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
6.1 The Drawings, Specifications and other documents prepared by the Architect
for this Project are instruments of the Architect's service for use solely with
respect to this Project and, unless otherwise provided, the Architect shall be
deemed the author of these documents and shall retain all common law, statutory
and other reserved rights, including the copyright, The Owner shall be permitted
to retain copies, including reproducible copies, of the Architect's Drawings,
Specifications and other documents for information and reference in connection
with the Owner's use and occupancy of the Project. The Architect's Drawings,
Specifications or other documents shall not be used by the Owner or others on
other projects, for additions to this Project or for completion of this Project
by others, unless the Architect is adjudged to be in default under this
Agreement, except by agreement in writing and with appropriate compensation to
the Architect.
6.2 Submission or distribution of documents to meet official regulatory
requirements or for similar purposes in connection with the Project is not to be
construed as publication in derogation of the Architect's reserved rights.
ARTICLE 7
ARBITRATION
7.1 Claims, disputes or other matters in question between the parties to this
Agreement arising out of or relating to this Agreement or breach thereof shall
be subject to and decided by arbitration in accordance with the Construction
Industry Arbitration Rules of the American Arbitration Association currently in
effect unless the parties mutually agree otherwise.
7.2 Demand for arbitration shall be filed in writing with the other party to
this Agreement and with the American Arbitration Association. A demand for
arbitration shall be made within a reasonable time after the claim, dispute or
other matter in question has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statutes of limitations.
7.3 No arbitration arising out of or relating to this Agreement shall include,
by consolidation, joinder or in any other manner, an additional person or entity
not a party to this Agreement, except by written consent containing a specific
reference to this Agreement signed by the Owner, Architect, and any other person
or entity sought to be joined. Consent to arbitration involving an additional
person or entity shall not constitute consent to arbitration of any claim,
dispute or other matter in question not described in the written consent or with
a person or entity not named or described therein. The foregoing agreement to
arbitrate and other agreements to arbitrate with an additional person or entity
duly consented to by the parties to this Agreement shall be specifically
enforceable in accordance with applicable law in any court having jurisdiction
thereof.
7.4 The award rendered by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any court
having jurisdiction thereof.
ARTICLE 8
TERMINATION, SUSPENSION OR
ABANDONMENT
8.1 This Agreement may be terminated by either party upon not less than seven
day's written notice should the other party fail substantially to perform in
accordance with the terms of this Agreement through no fault of the party
initiating the termination.
8.2 If the Project is suspended by the Owner for more than 30 consecutive days,
the Architect shall be compensated for services performed prior to notice of
such suspension. When the Project is resumed, the Architect's compensation shall
be equitable adjusted to provide for expenses incurred in the interruption and
resumption of the Architect's services.
8.3 This Agreement may be terminated by the Owner upon not less than seven days'
written notice to the Architect in the event that the Project is permanently
abandoned. If the Project is abandoned by the Owner for more than 90 consecutive
days, the Architect may terminate this Agreement by giving written notice.
8.4 Failure of the Owner to make payments to the Architect in accordance with
this Agreement shall be considered substantial nonperformance and cause for
termination.
8.5 If the Owner fails to make payment when due the Architect for services and
expenses, the Architect may, upon seven days' written notice to the Owner,
suspend performance of services under this Agreement. Unless payment in full is
received by the Architect within seven days of the date of the notice, the
suspension shall take effect without further notice. In the event of a
suspension of services, the Architect shall have no liability to the Owner for
delay or damage caused the Owner because of such suspension of services.
8.6 In the event of termination not the fault of the Architect, the Architect
shall be compensated for services performed prior to termination, together with
Reimbursable Expenses then due and all Termination Expenses as defined in
Paragraph 8.7.
8.7 Termination Expenses are in addition to compensation for Basic and
Additional Services, and include expenses which are directly attributable to
termination. Termination Expenses shall be computed as a percentage of the total
compensation for Basic Services and Additional Services earned to the time of
termination, as follows:
.1 Twenty percent of the total compensation for Basic and Additional
Services earned to date if termination occurs before or during the predesign,
site analysis, or Schematic Design Phases; or
.2 Ten percent o the total compensation for Basic and Additional
Services earned to date if termination occurs during the Design Development
Phase; or
.3 Five percent of the total compensation for Basic and Additional
Services earned to date if termination occurs during any subsequent phase.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Unless otherwise provided, this Agreement shall be governed by the law of
the principal place of business of the Architect.
9.2 Terms in this Agreement shall have the same meaning as those in AIA Document
A201, General Conditions of the Contract for Construction, current as of the
date of this Agreement.
9.3 Causes of action between the parties to this Agreement pertaining to acts or
failures to act shall be deemed to have accrued and that applicable statutes of
limitations shall commence to run not later than either the date of Substantial
Completion for acts or failures to act occurring prior to Substantial
Completion, or the date of issuance of the final Certificate for Payment for
acts or failures to act occurring after Substantial Completion.
9.4 The Owner and Architect waive all rights against each other and against the
contractors, consultants, agents and employees of the other for damages, but
only to the extent covered by property insurance during construction, except
such rights as they may have to the proceeds of such insurance as set forth in
the edition of AIA Document A201, General Conditions of the Contract for
Construction, current as of the date of this Agreement. The Owner and Architect
each shall require similar waivers from their contractors, consultants and
agents.
9.5 The Owner and Architect, respectively, bind themselves, their partners,
successors, assigns and legal representatives to the other party to this
Agreement and to the parties, successors, assigns and legal representatives of
such other party with respect to all covenants of this Agreement without the
written consent of the other.
9.6 This Agreement represents the entire and integrated agreement between the
Owner and Architect and supersedes all prior negotiations, representations or
agreements, either written or oral. This Agreement may be amended only be
written instrument signed by both Owner and Architect.
9.7 Nothing contained in this Agreement shall create a contractual relationship
with or a cause of action in favor of a third party against either the Owner or
Architect.
9.8 Unless otherwise provided in this Agreement, the Architect and Architect's
consultants shall have no responsibility for the discovery, presence, handling,
removal or disposal of or exposure of persons to hazardous materials in any form
at the Project site, including but not limited to asbestos products,
polychlorinated bihenyl (PCB) or other toxic substances.
9.9 The Architect shall have the right to include representation of the design
of the Project, including photographs of the exterior and interior, among the
Architect's promotional and professional materials. The Architect's materials
shall not include the Owner's confidential or proprietary information if the
Owner has previously advised the Architect in writing of
ARTICLE 10
PAYMENTS TO THE ARCHITECT
10.1 DIRECT PERSONNEL EXPENSE
10.1.1 Direct Personnel Expense is defined as the direct salaries of the
Architect's personnel engaged on the Project and the portion of the cost of
their mandatory and customary contributions and benefits related thereto, such
as employment taxes and other statutory employee benefits, insurance, sick
leave, holidays, vacations, pensions and similar contributions and benefits.
10.2 REIMBURSABLE EXPENSES
102.1 Reimbursable Expenses are in addition to compensation for Basic and
Additional Services and include expenses incurred by the Architect and
Architect's employees and consultants in the interest of the Project, as
identified in the following Clauses.
10.2.1.1 Expense of transportation in connection with the Project; expenses in
connection with authorized out-of-town travel; long-distance communications; and
fees paid for securing approval of authorities having jurisdiction over the
Project.
10.2.1.2 Expense of reproductions, postage and handling of Drawings,
Specifications and other documents.
10.2.1.3 If authorized in advance by the Owner, expense of overtime work
requiring higher than regular rates.
10.2-1.4 Expense of renderings, models and mock-ups requested by the Owner.
10.2.1.5 Expense of additional insurance coverage or limits, including
professional liability insurance, requested by the Owner in excess of that
normally carried by the Architect and Architect's consultants.
10.2.1.6 Expense of computer-aided design and drafting equipment time when used
in connection with the Project.
10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
10.3.1 An initial payment as set forth in Paragraph 11.1 is the minimum
payment under this Agreement.
10.3.2 Subsequent payments for Basic Services shall be made monthly and, where
applicable, shall be in proportion to services performed within each phase of
service, on the basis set forth in Subparagraph 11.2.2.
10.3.3 If and to the extent that the time initially established in Subparagraph
11.5.1 of this agreement is exceeded or extended through no fault of the
Architect, compensation for any services rendered during the additional period
of time shall be computed in the mariner set forth in Subparagraph 11..3.2.
10.3.4 When compensation is based on a percentage of Construction Cost and any
portions of the Project are deleted or otherwise not constructed, compensation
for those portions of the Project shall be payable to the extent services are
performed on those portions, in accordance with the schedule set forth in
Subparagraph 11.2.2, based on (1) the lowest bona fide bid or negotiated
proposal, or (2) if no such bid or proposal is received, the most recent
preliminary estimate of Construction Cost or detailed estimate of Construction
Cost for such portions of the Project.
10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
10.4.1 Payments on account of the Architect's Additional Services and for
Reimbursable Expenses shall be made monthly upon presentation of the Architect's
statement of services rendered or expenses incurred.
10.5 PAYMENTS WITHHELD
10.5.1 No deductions shall be made from the Architect's compensation on account
of penalty, liquidated damages or other sums withheld from payments to
contractors, or on account of the cost of changes in the Work other than those
for which the Architect has been found to be liable.
10.6 ARCHITECT'S ACCOUNTING RECORDS
10.6.1 Records of Reimbursable Expenses and expenses pertaining to Additional
Services and services performed on the basis of a multiple of Direct Personnel
Expense shall be available to the Owner or the Owner's authorized representative
at mutually convenient times.
ARTICLE 11
BASIS OF COMPENSATION
The Owner shall compensate the Architect as follows:
11.1 AN INITIAL PAYMENT of Two Thousand Dollars($ 2,000.00) shall be made upon
execution of this Agreement and credited to the Owner's account at final
payment.
11.2 BASIC COMPENSATION
11.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services
included in Article 12 as part of Basic Services, Basic Compensation shall be
computed as follows:
(insert basis of compensation, including stipulated sums, multiples or
percentages, and identify phases to which particular methods, of compensation
apply, if necessary.)
SEE ATTACHED
11.5.3 The rates and multiples set forth for Additional Services shall be
annually adjusted in accordance with normal salary review practices of the
Architect.
ARTICLE 12
OTHER CONDITIONS OR SERVICES
(Insert options of other services, identify Additional Services included within
Basic Compensation and modification to the payment and compensation terms
included in this Agreement
SEE ATTACHED
This Agreement entered into as of the day and year first written above.
OWNER ARCHITECT
________/s/ Rachel Steele_______ _____/s/ Joseph L. Oliveri_______
Rachel Steele as President of Joseph L. Oliveri, A1A, President
Steele Holdings, Inc.
(Printed name and title) (Printed name and title)
CAUTION: You should sign an original AIA document which has this caution printed
in red. An original assures that changes will not be obscured as may occur when
documents are reproduced.
<PAGE>
ATTACHMENT
11.2.1 Fifteen Thousand Five Hundred Dollars ($15,500.00).
11.2.2 Payment Schedule shall be as follows:
Initial Payment $ 2,000.00
Schematic Design - 100% complete $ 2,000.00
Design Development - 1000/o complete $ 2,000.00
Contract Documents - 1000/o complete $ 8,000.00
Construction Administration - 100% complete $ 1,500.00
--------
Total $15,500.00
11.3.1 Stipulations beyond what is agreed upon herein, or any changes after
initial written approval of each phase of work will be considered "Additional
Services" and will be charged at the following rates:
Principal Architect $90.00 per hour
Principle Engineer $90.00 per hour
Project Architect $75.00 per hour
Architectural Assistant $48.00 per hour
Administrative Assistant $35.00 per hour
11.3.2
Principal Architect $ 90.00 per hour
Principal Engineer $ 90.00 per hour
Project Architect $ 75.00 per hour
Architectural Assistant $ 48.00 per hour
Administrative Assistant $ 35.00 per hour
<PAGE>
ARTICLE 12
OTHER CONDITIONS OR SERVICES
12.1.1 This fee does not include "Reimbursable Expenses" which are in addition
to the compensation for basic and additional services. Reimbursable items shall
include blueline printing, CAD plots, express mailing, long distance telephone
charges, etc. and shall be billed at the following rates:
Blueline printing (in house) $1.50 per sheet
Blueline printing (via printer) Actual Cost + 15%
Cad Plots (in house) $2.50 per sheet
Cad Plots (via printer) Actual Cost + 15%
Photo Copy .25 per copy
Express Mailing Actual Cost + 15%
Long Distance Telephone Actual Cost
Mileage .33 per mile
12.1.2 This Agreement specifically excludes, as part of Basic Services, any work
related to special systems for the facility and coordination thereof. The Owner
shall furnish to the Architect, all drawings and specifications for all Owner
supplied equipment. The Architect shall provide adequate spare and normal
services (i.e. power, water) for the Owner supplied equipment. It also excludes
any services related to the ascertaining of variances, civil and site design,
landscape and irrigation design, security and communications system design and
building and site signage design.
12.1.3 The design and construction on document review meetings will be held at
the office of the Architect.
12.1.4 The Owner shall furnish the services of a Soils Engineer. Such services
shall include test borings and test pits, with report and appropriate
professional recommendations as to the soil bearing capacities for
footing/foundation design and water table levels.
12.1.5 The Architect's total liability for any loss, claim, or damage arising
out of this Agreement shall be limited to the amount stated in this Agreement as
compensation for the Architect's basic services. In no event shall the Architect
be liable for damages, for loss of profits, loss of use, loss of revenue, or any
other special, indirect or consequential damages of any kind.
(d) Consulting Contract-Donald Hughes
CONSULTING AND
CONTRACTING AGREEMENT
This Consulting and Contracting Agreement (hereinafter referred to as
"Agreement") made and entered into as of this 8th day of August, 1998, by and
between Swifty Carwash & Quik-Lube, Inc., a Florida corporation (hereinafter
called "Swifty"), and Donald C. Hughes, Inc., a Florida corporation (hereinafter
called "Hughes").
WHEREAS, Swifty is, among other things, a Florida corporation that was
formed for the purpose of developing, owning and operating a chain of carwash
and oil change centers, (the "Centers"), and Hughes engages primarily in the
development and construction of real estate, primarily residences and small
commercial buildings; and
WHEREAS, Swifty desires to obtain the benefit of Hughes' knowledge,
experience, expertise and advice in the construction and real estate businesses
to assist Swifty in the location and purchase of appropriate land parcels and in
the construction of the Centers; and
WHEREAS, Hughes desires to perform the services as set forth herein and
Swifty will delegate to Hughes and Hughes will accept from Swifty certain
responsibilities and duties as described more fully herein all subject to
certain specifications and limitations to be provided by Swifty as set forth
herein; and
WHEREAS, Hughes desires to provide the services as stated above;
NOW THEREFORE, in consideration of the foregoing, of the mutual promises
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, Swifty and Hughes, intending
to be legally bound, agree as follows:
1. Hughes agrees to actively explore, investigate and locate appropriate
parcels of land which are available at reasonable prices, in the greater Tampa
area which are suitable and desirable for the construction of the Centers
subject to the perimeters, instructions and limitations to be provided to Hughes
by Swifty.
2. Hughes will explore, investigate and locate suppliers of equipment to be
used in the type of Centers desired by Swifty in accordance with the
specification furnished to Hughes by Swifty.
3. Hughes will negotiate the actual prices of the parcels described in the
paragraph numbered 1 above and equipment described in the paragraph numbered 2
above, so as to enable Swifty to obtain the best possible prices reasonably
available.
4. Hughes will agree to provide construction services to Swifty for the
construction of buildings in connection with the Centers to the extent that
Hughes and Swifty agree that such construction will be appropriate for Hughes to
undertake. However in the event that Hughes and Swifty do not agree that Hughes
is the appropriate construction contractor for construction in connection with
any of the Centers or if Swifty believes that Swifty can obtain a more
competitive price or superior construction other than through Hughes, then
Hughes will or Swifty may seek out and obtain such other appropriate builder or
construction contractor as Hughes or Swifty may determine appropriate.
5. Swifty shall deposit with Hughes the sum of $210,000 to be held by
Hughes and used by Hughes in connection with the accomplishing of the foregoing,
including actual payment on behalf of Swifty for any land, construction or
equipment, provided however, that in no event shall Hughes enter into any
agreements or expend any sums in connection with these matters without the prior
written consent and approval of Swifty. Notwithstanding the foregoing, Hughes
may not expend more than the maximum total sum in the amount of Twenty-Five
Thousand Dollars and no/100 ($25,000.00), in connection with Hughes' actual
out-of-pocket expenditures in connection with Hughes performance as described in
this Agreement, without prior written consent of Swifty. However, even as to
said expenditures, Hughes will keep Swifty reasonably informed as such expenses
accrue.
6. For providing the services as specified herein it is contemplated that
Swifty will pay to Hughes between three and five percent of the total cost of
that portion of such projects which have been negotiated by or performed by
Hughes. However, that amount may be more or less than the three or five percent
contemplated depending on the agreement between Hughes and Swifty. Hughes and
Swifty will agree upon such rates on each project as such matters arise and will
only be bound by such rates in a writing signed by both of them. In no event
shall such commission cause the total costs to Swifty in connection with any
project (including such commission rates) to exceed those costs which would be
commercially available to Swifty in the absence of any assistance from Hughes.
7. This Agreement shall only apply to such projects and endeavors
as may be designated by Swifty from time to time during the term of this
Agreement.
8. Either Swifty or Hughes may terminate this Consulting and
Contracting Agreement at any time by furnishing at least 5 days written notice
to the other party. If not terminated prior, then this Agreement shall terminate
3 years from the date hereof unless extended in a writing executed by the
parties. Upon termination neither party will have any further obligation to
perform under this Agreement and all of the then remaining funds that were
deposited by Swifty with Hughes shall be returned to Swifty at the time of
termination. The then remaining funds to be returned at such time shall be the
full amount of the deposit made by Swifty with Hughes as described in paragraph
numbered 5 above, less the amount that may have been expended on behalf of
Swifty pursuant to a written agreement between Swifty and Hughes as described in
paragraph numbered 5, and further reduced by the actual out-of-pocket expenses
incurred by Hughes up to the maximum amount of Twenty-Five Thousand Dollars and
no/100 ($25,000.00). Hughes will not be required to invest such funds in an
interest bearing account, however, to the extent that Hughes does so, Hughes
shall be entitled to retain the interest earned on such funds as additional
compensation for Hughes' performance under this Agreement.
9. The parties contemplate that from time to time they may enter into
supplementary agreements and modifications of this Agreement, provided however,
that any such supplemental agreement or modification must be in writing,
including, for example, the extension of the geographical area in which Hughes
will perform its duties including regions elsewhere in the State of Florida and
other portions of the United States.
10. This Agreement shall be binding upon, inure to the benefit of and be
the obligation of Swifty and Hughes and their respective heirs, agents,
representatives, successors and assigns. However, neither Swifty nor Hughes
shall assign or transfer this Agreement to any other person, corporation or
entity without the prior written consent of the other party.
11. Whenever notice is required to be given hereunder, it shall be deemed
duly given when delivered by hand or deposited in the United States mail by
certified mail or registered mail, return receipt requested, postage prepaid, to
Swifty or Hughes at the addresses set forth below, or to such other addresses as
any party hereto may designate by written notice in like manner to the other
party(ies):
To Swifty:
Swifty Carwash & Quik-Lube, Inc.
Attention: Rachel Steele, President
17521 Crawley Road
Odessa, Florida 33556
To Hughes:
Donald C. Hughes, Inc.
Attention: Donald Hughes, President
209 South Howard Ave.
Tampa, Florida 33606
12. This Agreement contains the entire agreement between Swifty and Hughes
and cannot be changed or terminated orally but may only be altered or amended by
an agreement in writing and signed by all parties hereto.
13. The illegality, invalidity, or unenforceability of any provision of
this Agreement shall not operate to invalidate the whole Agreement and shall in
no way affect the validity or enforceability of any other provisions of this
Agreement. Any such illegality, invalidity, or unenforceability of any provision
of this Agreement shall be construed or rewritten in such manner as to avoid
such illegality, invalidity, or unenforceability while keeping the intent of the
parties, as expressed in this Agreement, in mind.
14. This Agreement has been made in the State of Florida and shall be
governed by and construed in accordance with the laws of the State of Florida.
15. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original instrument, but all of which together will
constitute for all purposes one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first-above written.
_______/s/ Rachel Steele_______ _____/s/ Donald Hughes_______
Swifty Carwash & Quik-Lube, Inc. Donald C Hughes, Inc..
By: Rachel Steele, President By: Donald C. Hughes, President
(e) Employment Contract-Stanley Rabushka
EXHIBIT A TO EMPLOYEE AGREEMENT OF APRIL 6, 1998 BETWEEN SWIFTY CARWASH &
QUIK-LUBE, INC. AND STANLEY D. RABUSHKA
Stanley D. Rabushka (the "Employee") shall serve as business advisor and
consultant to Swifty Carwash & Quik-Lube, Inc. (the "Company") with his duties
however limited to those describe in this Exhibit A. Employee shall provide
advice and consultation services relating to business transactions and matters
as they arise from time to time as requested by the Company and agreed to by
Employee. Such services and advise, as will be provided by Employee, shall not
include services or advise as attorney for the Company, as the Company has and
will continue to obtain services and advise pertaining to legal matters and the
securities laws and requirements from other attorneys. In addition Employee's
duties shall only include such matters and services as the Company and Employee
may agree upon time to time.
SWIFTY CARWASH & QUIK-LUBE, INC.
BY:____/s/ Rachel Steele___________________
Rachel L. Steele, President
Employee
By:_____/s/ Stanley Rabushka_______________
Stanley D. Rabushka
<PAGE>
The parties to this agreement agree that they waive any objections,
constitutional, statutory or otherwise, to a Florida court's taking jurisdiction
of any dispute between them. By entering into this agreement, the parties, and
each of them understand that they might be called upon to answer a claim
asserted in a Florida court.
In witness whereof, the parties have executed this Agreement the date first
set forth above.
SWIFTY CARWASH & QUIK-LUBE, INC.
BY:____/s/ Rachel Steele___________________
Rachel L. Steele, President
Employee
By:_____/s/ Stanley Rabushka_______________
Stanley D. Rabushka
(f) Promissory Note-Swifty
PROMISSORY NOTE
Date of Note: April 24,1998
Amount of Note: $525,000.00
Maturity Date: May 1, 2014
FOR VALUE RECEIVED, the undersigned ("Maker") does
hereby covenant and promise to pay to the order of
PEOPLES BANK, or its successors or assigns,
("Holder"), at 32845 U.S. Highway 19 North, Palm
Harbor, Florida, 34684, or at such other place as
Holder may designate to Maker in writing from time to
time, in legal tender of the United States, the sum of
FIVE HUNDRED TWENTY-FIVE THOUSAND AND 00/100 Dollars,
($525,000.00), together with accrued interest.
Interest Rate The principal balance remaining unpaid from time
to time shall bear interest at the following rates
which shall be calculated on the basis of a 360 day
year for actual days elapsed:
(a) From the date of this Note through and including
May 1, 1999 (the Construction Loan Period), payments
of interest only shall be due on the first day of each
month, on amounts actually advanced, calculated at an
annual interest rate of one percent (1.0%) in excess
of the Prime Rate, as announced or published in the
Wall Street Journal from time to time as the prime
rate, and,
(b)(i) At the commencement of the Permanent Loan
Period, and every three years thereafter, the interest
rate may change. The interest may change on May 1,
1999, May 1, 2002, and every three years thereafter
(the "Change Dates").
(ii) On each of the Change Dates, the interest rate
will be based on an index (the "Index") equivalent to
the weekly average yield on United States Treasury
securities adjusted to a constant maturity of three
(3) years, as made available by the Federal Reserve
Board and listed in the Federal Reserve Statistical
Release Bulletin (Pub. H-15[5191]). The most recent
index figure available as of 45 days before each
Change Date is called the "Current Index". If the
index is no longer available, the BANK may choose a
new index which is based upon comparable information.
(iii) Before each Change Date, the BANK will calculate
the new interest rate by adding 275 basis points
(2.75%) to the Current Index. The BANK will round the
result of this addition up to the nearest one-eighth
of one percentage point (0.125%). Subject to the
limits set forth herein, this rounded amount will be
the new interest rate until the next Change Date.
Beginning with the commencement of the Permanent Loan
Period, principal and interest payments shall be due
and payable commencing on June 1, 1999 and on the
first day of each succeeding month thereafter for the
term of the loan.
Upon any interest rate adjustment on each Change Date
as aforesaid, the monthly principal and interest
payments shall be adjusted to an amount necessary to
amortize the then unpaid principal balance at the
adjusted rate over a term of 180
_RS__
Maker' s Initials
months less the number of months that have elapsed
since the first scheduled principal and interest
payment. Such payments shall continue to be paid on
the first day of each month.
On May 1, 2014 (the "Maturity Date"), all indebtedness
evidenced hereby (whether unpaid principal, accrued
interest or otherwise) that remains unpaid shall be
due and payable and shall be paid.
Prepayment, Maker hereof reserves the right to prepay this Note in
whole or in part any time hereafter without penalty.
All delinquent principal and installments of interest shall bear interest
from the date that said payments are due at a rate equal to five percent (5%)
per annum above the interest rate stated above, provided, however, in no event
shall such rate exceed the highest rate authorized by applicable law.
The Holder may collect a late charge not to exceed an amount equal to
five percent (5%) of any installment which is not paid within ten (10) days of
the due date thereof (except for the payment due on the Maturity Date for which
there is no grace period), to cover the extra expense involved in handling
delinquent payments, provided that collection of said late charge shall not be
deemed a waiver by the Holder of any of its rights under this note.
Borrower shall maintain its operating accounts with Lender during the
term of the loan. In the event these accounts are not maintained as required,
the Borrower agrees that the interest rate on the subject Note shall be
increased by one percentage point retroactive from the date of closing of or
inactivity in the depository accounts.
Should any default occur in the payment as stipulated above of either the
interest or principal and continue for fifteen (15) days thereafter, then in
that event, the principal of this Note or an unpaid part thereof and all accrued
interest thereon shall, in the sole discretion of Holder, at once become due and
payable and may be collected forthwith without notice to the undersigned,
regardless of the stipulated date of maturity. However, Holder may, in the sole
discretion of Holder, accept payments made by Maker after any default has
occurred, without waiving any of Holder's rights herein. TIME BEING OF THE
ESSENCE OF THIS NOTE.
It is agreed that the granting to Maker of this Note or any party of an
extension or extensions of time for the payment of any sum or sums due hereunder
or under the accompanying Mortgage or for the performance of any covenant or
stipulation thereof of the taking of other or additional securities shall not in
any way release or affect the liability of the Maker of this Note.
This Note may not be changed orally, but only by an agreement in writing,
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
In the event that this Note is collected by law or through attorneys at
law, or under advice therefrom (whether such attorneys are employees of the
Holder or an affiliate of the Holder or are outside counsel), the Maker and any
endorser, guarantor or other person primarily or secondarily liable for payment
hereof hereby, severally and jointly agree to pay all costs of collection,
including reasonable attorneys' fees (including charges for paralegals and
others working under the direction or supervision of the Holder's attorneys)
whether or not suit is brought, and whether incurred in connection with
collection, trial, appeal, bankruptcy or other creditors' proceedings or
otherwise.
Nothing herein contained, nor any transaction related thereto, shall be
construed or so operate as to require Maker or any person liable for the
repayment of same, to pay interest in an amount or at a rate greater than the
maximum allowed by applicable law. Should any interest or other charges paid by
Maker, or any parties liable for the payment of the loan made pursuant to this
Note, result in the computation or earning of interest in excess of the maximum
legal rate of interest permitted under the law in effect while said interest is
being earned, then any and all of that excess shall be and is waived by Holder
of this Note, and all that excess shall be automatically credited against and in
reduction of the principal balance, and any portion of the excess that exceeds
the principal balance shall be paid by Holder to Maker or any parties liable for
the payment of the loan made pursuant to this Note so that
_RS_
Maker's Initials
All parties to this Note, whether Maker, principal, surety, guarantor
or endorser, hereby waive presentment for payment, demand, notice, protest,
notice of protest and notice of dishonor.
Anything herein to the contrary notwithstanding, the obligations of
Maker under this Note shall be subject to the limitation that payments of
interest shall not be required to the extent that receipt of any such payment by
Holder would be contrary to provisions of law applicable to Holder limiting the
maximum rate of interest which may be charged or collected by Holder.
The Maker hereof acknowledges that the Holder shall have no obligation
whatsoever to renew, modify or extend this Note or to refinance the indebtedness
under this Note upon the maturity thereof, except as specifically provided
herein.
Holder shall have the right to accept and apply to the outstanding
balance of this Note any and all payments or partial payments received from the
Maker after the due date therefor whether the Note has been accelerated or not
without waiver of any and all of the Holder's rights to continue to enforce the
terms of the Note and to seek any and all remedied provided for herein or any
instrument securing the same including, but not limited to, the right to
foreclose on such security.
In the event that legal action is instituted to collect any amounts due
under, or to enforce any provision of, this instrument, Maker and any endorser,
guarantor or other person primarily or secondarily liable for payment hereof
consent to, and by execution hereof submit themselves to, the jurisdiction of
the courts of the State of Florida, and, notwithstanding the place of residence
of any of them or the place of execution of this instrument such litigation may
be brought in or transferred to a court of competent jurisdiction in or for
Pinellas County, Florida.
MAKER AND HOLDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOLDER ENTERING INTO
TIES AGREEMENT.
The term "Maker" as used herein, in every instance shall include the
makers, heirs, executors, administrators, successors, legal representatives and
assigns, and shall. denote the singular and/or plural, masculine and/or
feminine, and natural and/or artificial persons whenever and wherever the
context so requires or admits.
All persons executing this Note shall be jointly and severally liable
for the payment of this Note.
This Note is secured in pan by a Mortgage dated April 24, 1998 in the
amount of $525,000.00 to PEOPLES BANK and recorded in the Public Records of
Pinellas County, Florida and is subject to the provisions thereof and is to be
construed and enforced in accordance with the laws of the State of Florida. The
Mortgage specifies various defaults upon the happening of which all sums owing
on this Note may be declared immediately due and payable.
MAKERS
Swifty Car Wash & Quik-Lube, Inc.
BY: /s/ Rachel Steele
Rachel L. Steele, President
BY: /s/ Rachel Steele
Rachel L. Steele, Individually
(g) Promissory Note-Steele
$96,166 Date: November 16, 1998
PROMISSORY NOTE
Odessa, Florida
FOR VALUE RECEIVED, the undersigned, Rachel Steele, promises to pay to Swifty
Carwash & Quik-Lube, Inc., or order, in the manner hereinafter specified, the
principal sum of Ninety Nine Thousand One Hundred and Sixty-six Dollars
($96,166.00) with interest in the amount of eight percent (8%) per annum, on the
balance remaining unpaid. The said principal and interest shall be payable in
lawful money of the United States of America at 17521 Crawley Road, Odessa,
Florida 33556 or at such place as may hereafter be designated by written notice
from the holder to the maker hereof, on the date and in the manner following:
Payable in equal quarterly installments of $5,000 beginning on
November 15th, 1998, payable three (3) months from that date
and every three (3) months thereafter until paid in full.
Payments applied first to accrued interest and then to
principal.
Makers reserve the right of prepayment in whole or in part without penalty.
The holder of this Note may, at its option, accelerate the maturity of all
installments to become due on the occurrence of any of the following events
affecting any of the parties to this Note, either maker, endorser, surety, or
guarantor. On acceleration, the unpaid balance of this Note (being the total of
the monthly installments unpaid at the time, together with any late charges that
have been charged and remain unpaid) shall become immediately due and payable
without demand or notice upon:
(1) Failure to make any installment payment within 30 days of when it falls
due;
(2) Insolvency or the commission of any act of insolvency;
(3) Filing of a petition in bankruptcy, either voluntary or involuntary;
(4) Institution of any proceeding under any bankruptcy or insolvency laws
relating to the relief of debtors;
(5) Entry of judgment;
(6) Appointment of a receiver;
(7) Issuance of a writ of attachment, order of garnishment, order or subpoena
in supplementary proceedings, execution, or other similar process;
(8) Assignment, mortgage, or pledge of accounts receivable or other property
without the written consent of the holder;
(9) Termination or retirement from employment with the Corporation.
If default be made in the payment of any of the sums of principal or interest
mentioned herein for a period of thirty (30) days, or in the performance of any
of the agreements contained herein, then the entire principal sum and accrued
interest shall at the option of the holder hereof become at once due and
collectible without notice time being of the essence; and the said principal sum
and accrued interest shall both bear interest from such time until paid at the
highest rate allowable under the laws of the State of Florida. Failure to
exercise this option shall not constitute a waiver of the right to exercise the
same in the event of any subsequent default.
In the event of Rachel Steele's termination from the employment of the
Corporation prior to repayment in full under the terms of this note, the
Corporation will have the option of withholding or retaining any reimbursement
or salary or other funds owed her pending repayment of this note in addition to
the other remedies provided herein.
Each person liable hereon whether maker or endorser, hereby waives presentment,
protest, notice, notice of protest and notice of dishonor and agrees to pay all
costs, including a reasonable attorney's fee, whether suit be brought or not,
if, after maturity of this note or default hereunder, counsel shall be employed
to collect this note.
This note is a personal advance to the maker, Rachel Steele. All repayment shall
be made from her personally and in no event shall the Corporation or its funds
be used in the repayment of this note.
Whenever used herein the terms "holder", "maker" and "payee" shall be construed
in the singular or plural as the context may require or admit.
_______/s/ Rachel Steele_____________________
Rachel Steele
(h) Consulting Agreement-John Oster
CONSULTING AGREEMENT
DATE: November 16, 1998
PARTIES: JOHN OSTER (the "Consultant")
SWIFTY CARWASH & QUIK-LUBE, INC.
a Florida corporation (the "Company")
AGREEMENTS:
SECTION 1. RETENTION OF CONSULTANT
1.1 Effective Date. Effective November 16, 1998 (the "Effective Date") the
Company shall retain the Consultant as an independent contractor consultant, and
the Consultant hereby accepts such consulting relationship, upon the terms and
conditions set forth in this Agreement.
1.2 Services. The Consultant agrees to serve the Company as a consultant
regarding carwash equipment and operations. The Consultant shall perform and
discharge well and faithfully for the Company such consulting services during
the term of this Agreement as may be assigned to the Consultant from time to
time by the President or Vice President of the Company; provided, however, that
no such services shall require the availability of the Consultant in excess of
250 hours per year.
SECTION 2. COMPENSATION
2.1 Consulting Fee and Expense Reimbursement. In full satisfaction for any
and all consulting services rendered by the Consultant for the Company under
this Agreement, the Company shall pay the Consultant a consulting fee of 10,000
shares of the Company's common stock per year, payable upon the Effective date
of this Agreement.
2.2 Time Records and Reports. The Consultant shall prepare accurate and
complete records of the Consultant's services for the Company under this
Agreement and agrees to submit records on a monthly basis to the Company, along
with such other documentation of the services performed under this Agreement as
reasonably requested by the Company.
SECTION 3. NATURE OF RELATIONSHIP; EXPENSES
3.1 Independent Contractor. It is agreed that the Consultant shall be an
independent contractor and shall not be the employee, servant, agent, partner,
or joint venturer of the Company, or any of its officers, directors, or
employees. The Consultant shall not have the right to or be entitled to any of
the employee benefits of the Company or its subsidiaries. The Consultant has no
authority to assume or create any obligation or liability, express or implied,
on the Company's behalf or in its name or to bind the Company in any manner
whatsoever.
3.2 Insurance and Taxes. The Consultant agrees to arrange for the
Consultant's own liability, disability, health, and workers' compensation
insurance, and that of the Consultant's employees, if any. The Consultant
further agrees to be responsible for the Consultant's own tax obligations
accruing as a result of payments for services rendered under this Agreement, as
well as for the tax withholding obligations with respect to the Consultant's
employees, if any. It is expressly understood and agreed by the Consultant that
should the Company for any reason incur tax liability or charges whatsoever as a
result of not making any withholdings from payments for services under this
Agreement, the Consultant will reimburse and indemnify the Company for the same.
3.3 Equipment, Tools, Employees and Overhead. The Consultant shall provide,
at the Consultant's expense, all equipment and tools needed to provide services
under this Agreement, including the salaries of and benefits provided to any
employees of the Consultant. Except as otherwise provided in this Agreement, the
Consultant shall be responsible for all of the Consultant's overhead costs and
expenses.
SECTION 4. TERM
4.1 Initial Term; Renewal. Unless otherwise terminated pursuant to the
provisions of Section 4.2, the consulting relationship under this Agreement
shall commence on the Effective Date and continue in effect until November 16,
1999 (the "Initial Term"). Thereafter, the term of the consulting relationship
under this Agreement shall be extended for successive one-year periods subject
to either party's right to terminate the consulting relationship at the end of
the Initial Term or on any subsequent anniversary thereof by giving the other
party at least 60 days' written notice prior to the effective date of such
termination.
4.2 Early Termination. The consulting relationship under this Agreement may
be terminated prior to the end of the Initial Term or any renewal term by the
death of the Consultant, the disability of the Consultant resulting in the
inability of the Consultant to perform the consulting service, or by written
notice from the Company that, in the Company's sole determination: (a) the
Consultant has refused, failed, or is unable to render consulting services under
this Agreement; (b) the Consultant has breached any of the Consultant's other
obligations under this Agreement; or (c) the Consultant has engaged or is
engaging in conduct that in the Company's sole determination is detrimental to
the Company. If the consulting relationship is terminated for any of the reasons
set forth in the preceding sentence, the right of the Consultant to the
compensation set forth in Section 2 of this Agreement shall cease on the date of
such termination, and the of the shares exchanged pro rata as of the date of
termination shall be returned and the Company shall have no further obligation
to the Consultant under any of the provisions of this Agreement.
4.3 Effect of Termination. Termination of the consulting relationship shall
not affect the provisions of Sections 5, or 6 which provisions shall survive any
termination in accordance with their terms.
SECTION 5. DISCLOSURE OF INFORMATION
The Consultant acknowledges that the Company's trade secrets, private or
secret processes as they exist from time to time, and information concerning
products, developments, manufacturing techniques, new product plans, equipment,
inventions, discoveries, patent applications, ideas, designs, engineering
drawings, sketches, renderings, other drawings, manufacturing and test data,
computer programs, progress reports, materials, costs, specifications,
processes, methods, research, procurement and sales activities and procedures,
promotion and pricing techniques, and credit and financial data concerning
customers of the Company and its subsidiaries, as well as information relating
to the management, operation, or planning of the Company and its subsidiaries
(the "Proprietary Information") are valuable, special, and unique assets of the
Company and its subsidiaries, access to and knowledge of which may be essential
to the performance of the Consultant's duties under this Agreement. In light of
the highly competitive nature of the industry in which the Company and its
subsidiaries conduct their businesses, the Consultant agrees that all
Proprietary Information obtained by the Consultant as a result of the
Consultant's relationship with the Company and its subsidiaries shall be
considered confidential. In recognition of this fact, the Consultant agrees that
the Consultant will not, during and after the Consulting Period, disclose any of
such Proprietary Information to any person or entity for any reason or purpose
whatsoever, and the Consultant will not make use of any Proprietary Information
for the Consultant's own purposes or for the benefit of any other person or
entity (except the Company and its subsidiaries) under any circumstances.
SECTION 6. INTERPRETATION
It is expressly understood and agreed that although the Consultant and the
Company consider the restrictions contained in Sections 5 and 6 of this
Agreement reasonable for the purpose of preserving the goodwill, proprietary
rights, and going concern value of the Company and its subsidiaries, if a final
judicial determination is made by a court having jurisdiction that the time or
territory or any other restriction contained in Sections 5 and 6 is an
unenforceable restriction on the activities of the Consultant, the provisions of
such restriction shall not be rendered void but shall be deemed amended to apply
as to such maximum time and territory and to such other extent as such court may
judicially determine or indicate to be reasonable. Alternatively, if the court
referred to above finds that any restriction contained in Sections 5 and 6 or
any remedy provided in Section 9 of this Agreement is unenforceable, and such
restriction or remedy cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other restrictions
contained in this Agreement or the availability of any other remedy. The
provisions of Sections 5 and 6 shall in no respect limit or otherwise affect the
obligations of the Consultant under other agreements with the Company.
SECTION 7. REMEDIES
The Consultant acknowledges and agrees that the Company's remedy at law for
a breach or threatened breach of any of the provisions of Sections 5, and 6 of
this Agreement would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by the Consultant of any of the
provisions of Sections 5, and 6 the Consultant agrees that, in addition to its
remedy at law, at the Company's option, all rights of the Consultant under this
Agreement may be terminated, and the Company shall be entitled without posting
any bond to obtain, and the Consultant agrees not to oppose a request for,
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy which
may then be available. Nothing contained in this Section 7 shall be construed as
prohibiting the Company from pursuing, in addition, any other remedies available
to it for such breach or threatened breach.
SECTION 8. MISCELLANEOUS PROVISIONS
8.1 Assignment. This Agreement shall not be assignable by either party,
except by the Company to any subsidiary or affiliate of the Company or to any
successor in interest to the Company's business.
8.2 Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the heirs, personal representatives, successors, and
assigns of the parties.
8.3 Notice. Any notice or other communication required or permitted to be
given under this Agreement shall be in writing and shall be mailed by certified
mail, return receipt requested, postage prepaid, addressed to the parties at the
following addresses:
As to Consultant: John Oster
____________/s/___________________
As to Company: Swifty Carwash & Quik-Lube, Inc.
BY:_______________________________
All notices and other communications shall be deemed to be given at the
expiration of three (3) days after the date of mailing. The address of a party
to which notices or other communications shall be mailed may be changed from
time to time by giving written notice to the other party.
8.4 Litigation Expense. In the event of a default under this Agreement, the
defaulting party shall reimburse the nondefaulting party for all costs and
expenses reasonably incurred by the nondefaulting party in connection with the
default, including without limitation attorney's fees. Additionally, in the
event a suit or action is filed to enforce this Agreement or with respect to
this Agreement, the prevailing party or parties shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action,
including without limitation reasonable attorney's fees at the trial level and
on appeal.
8.5 Waiver. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
8.6 Applicable Law. This Agreement shall be governed by and shall be
construed in accordance with the laws of the state of Florida. Exclusive venue
for any action arising hereunder or in connection herewith shall lie in state
court in Alachua County, Florida.
8.7 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties pertaining to its subject matter, and it supersedes all
prior contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties.
Company: Consultant:
SWIFTY CARWASH & QUIK-LUBE, INC.
By:_______/s/ Rachel Steele____________ _____/s/ John H. Oster____________
John Oster
Title:________President________________
Addendum A
Consultant agrees not to consult or build a full service car wash within a
three (3) mile radius of Swifty Carwash & Quik-Lube, Inc., 32663 U.S. 19 N. Palm
Harbor, Florida 34684 for a period of ten years from the date of this Agreement.
Swifty Carwash & Quik-Lube, Inc.
BY:__/s/ Rachel Steele________________ __/s/ John Oster___________________
Rachel Steele, President John Oster
(i) Consulting Agreement-Raymond Lipsch
CONSULTING AGREEMENT
DATE: November 15, 1998
PARTIES: RAYMOND LIPSCH (the "Consultant")
SWIFTY CARWASH & QUIK-LUBE, INC.
a Florida corporation (the "Company")
AGREEMENTS:
SECTION 1. RETENTION OF CONSULTANT
1.1 Effective Date. Effective November 15, 1998 (the "Effective Date") the
Company shall retain the Consultant as an independent contractor consultant, and
the Consultant hereby accepts such consulting relationship, upon the terms and
conditions set forth in this Agreement.
1.2 Services. The Consultant agrees to serve the Company as a consultant
regarding management and operations. The Consultant shall perform and discharge
well and faithfully for the Company such consulting services during the term of
this Agreement as may be assigned to the Consultant from time to time by the
President of the Company; provided, however, that no such services shall require
the availability of the Consultant not less than 250 hours per year.
SECTION 2. COMPENSATION
2.1 Consulting Fee and Expense Reimbursement. In full satisfaction for any
and all consulting services rendered by the Consultant for the Company under
this Agreement, the Company shall pay the Consultant a consulting fee of
Seventy-Two Thousand Five Hundred Dollars ($72,500) per year, payable in monthly
installments upon the Effective date of this Agreement.
2.2 Other Compensation and Fringe Benefits. The Consultant shall not
receive any other compensation from the Company or participate in or receive
benefits under any of the Company's employee fringe benefit programs or receive
any other fringe benefits from the Company on account of the consulting services
to be provided to the Company under this Agreement, including without limitation
health, disability, life insurance, retirement, pension, and profit sharing
benefits.
SECTION 3. NATURE OF RELATIONSHIP; EXPENSES
3.1 Independent Contractor. It is agreed that the Consultant shall be an
independent contractor and shall not be the employee, servant, agent, partner,
or joint venturer of the Company, or any of its officers, directors, or
employees. The Consultant shall not have the right to or be entitled to any of
the employee benefits of the Company or its subsidiaries. The Consultant has no
authority to assume or create any obligation or liability, express or implied,
on the Company's behalf or in its name or to bind the Company in any manner
whatsoever.
3.2 Insurance and Taxes. The Consultant agrees to arrange for the
Consultant's own liability, disability, health, and workers' compensation
insurance, and that of the Consultant's employees, if any. The Consultant
further agrees to be responsible for the Consultant's own tax obligations
accruing as a result of payments for services rendered under this Agreement, as
well as for the tax withholding obligations with respect to the Consultant's
employees, if any. It is expressly understood and agreed by the Consultant that
should the Company for any reason incur tax liability or charges whatsoever as a
result of not making any withholdings from payments for services under this
Agreement, the Consultant will reimburse and indemnify the Company for the same.
3.3 Equipment, Tools, Employees and Overhead. The Consultant shall provide,
at the Consultant's expense, all equipment and tools needed to provide services
under this Agreement, including the salaries of and benefits provided to any
employees of the Consultant. Except as otherwise provided in this Agreement, the
Consultant shall be responsible for all of the Consultant's overhead costs and
expenses.
SECTION 4. TERM
4.1 Initial Term; Renewal. Unless otherwise terminated pursuant to the
provisions of Section 4.2, the consulting relationship under this Agreement
shall commence on the Effective Date and continue in effect until November 15,
2001 (the "Initial Term"). Thereafter, the term of the consulting relationship
under this Agreement may be extended upon written notice by the Company for
successive one-month periods subject to either party's right to terminate the
consulting relationship following the end of the Initial Term.
4.2 Early Termination. The consulting relationship under this Agreement may
be terminated prior to the end of the Initial Term or any renewal term by the
death of the Consultant, the disability of the Consultant resulting in the
inability of the Consultant to perform the consulting service, or by written
notice from the Company that, in the Company's sole determination: (a) the
Consultant has refused, failed, or is unable to render consulting services under
this Agreement; (b) the Consultant has breached any of the Consultant's other
obligations under this Agreement; or (c) the Consultant has engaged or is
engaging in conduct that in the Company's sole determination is detrimental to
the Company. If the consulting relationship is terminated for any of the reasons
set forth in the preceding sentence, the right of the Consultant to the
compensation set forth in Section 2 of this Agreement shall cease on the date of
such termination, and the Company shall have no further obligation to the
Consultant under any of the provisions of this Agreement.
4.3 Effect of Termination. Termination of the consulting relationship shall
not affect the provisions of Sections 5, 6, and 7, which provisions shall
survive any termination in accordance with their terms.
SECTION 5. DISCLOSURE OF INFORMATION
The Consultant acknowledges that the Company's trade secrets, private or
secret processes as they exist from time to time, and information concerning
products, developments, manufacturing techniques, new product plans, equipment,
inventions, discoveries, patent applications, ideas, designs, engineering
drawings, sketches, renderings, other drawings, manufacturing and test data,
computer programs, progress reports, materials, costs, specifications,
processes, methods, research, procurement and sales activities and procedures,
promotion and pricing techniques, and credit and financial data concerning
customers of the Company and its subsidiaries, as well as information relating
to the management, operation, or planning of the Company and its subsidiaries
(the "Proprietary Information") are valuable, special, and unique assets of the
Company and its subsidiaries, access to and knowledge of which may be essential
to the performance of the Consultant's duties under this Agreement. In light of
the highly competitive nature of the industry in which the Company and its
subsidiaries conduct their businesses, the Consultant agrees that all
Proprietary Information obtained by the Consultant as a result of the
Consultant's relationship with the Company and its subsidiaries shall be
considered confidential. In recognition of this fact, the Consultant agrees that
the Consultant will not, during and after the Consulting Period, disclose any of
such Proprietary Information to any person or entity for any reason or purpose
whatsoever, and the Consultant will not make use of any Proprietary Information
for the Consultant's own purposes or for the benefit of any other person or
entity (except the Company and its subsidiaries) under any circumstances.
SECTION 6. INTERPRETATION
It is expressly understood and agreed that although the Consultant and the
Company consider the restrictions contained in Section 5 of this Agreement
reasonable for the purpose of preserving the goodwill, proprietary rights, and
going concern value of the Company and its subsidiaries, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in Section 5 is an unenforceable restriction
on the activities of the Consultant, the provisions of such restriction shall
not be rendered void but shall be deemed amended to apply as to such maximum
time and territory and to such other extent as such court may judicially
determine or indicate to be reasonable. Alternatively, if the court referred to
above finds that any restriction contained in Section 5 or any remedy provided
in Section 8 of this Agreement is unenforceable, and such restriction or remedy
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained in this Agreement
or the availability of any other remedy. The provisions of Section 5 shall in no
respect limit or otherwise affect the obligations of the Consultant under other
agreements with the Company.
SECTION 7. DESIGNS, INVENTIONS, PATENTS AND COPYRIGHTS
7.1 Intellectual Property. The Consultant shall promptly disclose, grant,
and assign to the Company for its sole use and benefit any and all designs,
inventions, improvements, technical information, know-how and technology, and
suggestions relating in any way to the products of the Company or its
subsidiaries or capable of beneficial use by customers to whom products or
services of the Company or its subsidiaries are sold or provided, that the
Consultant may conceive, develop, or acquire during the Consultant's consulting
relationship with the Company or its subsidiaries (whether or not during usual
working hours), together with all copyrights, trademarks, design patents,
patents, and applications for copyrights, trademarks, design patents, patents,
divisions of pending patent applications, applications for reissue of patents
and specific assignments of such applications that may at any time be granted
for or upon any such designs, inventions, improvements, technical information,
know-how, or technology (the "Intellectual Property").
7.2 Assignments and Assistance. In connection with the rights of the
Company to the Intellectual Property, the Consultant shall promptly execute and
deliver such applications, assignments, descriptions, and other instruments as
may be necessary or proper in the opinion of the Company to vest in the Company
title to the Intellectual Property and to enable the Company to obtain and
maintain the entire right and title to the Intellectual Property throughout the
world. The Consultant shall also render to the Company, at the Company's
expense, such assistance as the Company may require in the prosecution of
applications for said patents or reissues thereof, in the prosecution or defense
of interferences which may be declared involving any of said applications or
patents, and in any litigation in which the Company or its subsidiaries may be
involved relating to the Intellectual Property.
SECTION 8. REMEDIES
The Consultant acknowledges and agrees that the Company's remedy at law for
a breach or threatened breach of any of the provisions of Sections 5 and 7 of
this Agreement would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by the Consultant of any of the
provisions of Sections 5 and 7, the Consultant agrees that, in addition to its
remedy at law, at the Company's option, all rights of the Consultant under this
Agreement may be terminated, and the Company shall be entitled without posting
any bond to obtain, and the Consultant agrees not to oppose a request for,
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy which
may then be available. The Consultant acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate remedy
upon breach or threatened breach of Section 5 and consequently agrees upon any
such breach or threatened breach to the granting of injunctive relief
prohibiting the design, development, manufacture, marketing or sale of products
and providing of services of the kind designed, developed, manufactured,
marketed, sold or provided by the Company or its subsidiaries during the term of
the Consultant's consulting relationship with the Company. Nothing contained in
this Section 8 shall be construed as prohibiting the Company from pursuing, in
addition, any other remedies available to it for such breach or threatened
breach.
SECTION 9. MISCELLANEOUS PROVISIONS
9.1 Assignment. This Agreement shall not be assignable by either party,
except by the Company to any subsidiary or affiliate of the Company or to any
successor in interest to the Company's business.
9.2 Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the heirs, personal representatives, successors, and
assigns of the parties.
9.3 Notice. Any notice or other communication required or permitted to be
given under this Agreement shall be in writing and shall be mailed by certified
mail, return receipt requested, postage prepaid, addressed to the parties at the
following addresses:
As to Consultant: Raymond Lipsch
=================================
As to Company: Swifty Carwash & Quik-Lube, Inc.
=================================
All notices and other communications shall be deemed to be given at the
expiration of three (3) days after the date of mailing. The address of a party
to which notices or other communications shall be mailed may be changed from
time to time by giving written notice to the other party.
9.4 Litigation Expense. In the event of a default under this Agreement, the
defaulting party shall reimburse the nondefaulting party for all costs and
expenses reasonably incurred by the nondefaulting party in connection with the
default, including without limitation attorney's fees. Additionally, in the
event a suit or action is filed to enforce this Agreement or with respect to
this Agreement, the prevailing party or parties shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action,
including without limitation reasonable attorney's fees at the trial level and
on appeal.
9.5 Waiver. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
9.6 Applicable Law. This Agreement shall be governed by and shall be
construed in accordance with the laws of the state of Florida. Exclusive venue
for any action arising hereunder or in connection herewith shall lie in state
court in Alachua County, Florida.
9.7 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties pertaining to its subject matter, and it supersedes all
prior contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties.
Company: Consultant:
SWIFTY CARWASH & QUIK-LUBE, INC.
By:___/s/ Rachel Steele_________________ ___/s/ Raymond Lipsch___________
RAYMOND LIPSCH
Title:____President_____________________
COMMERCIAL CONTRACT
FLORIDA ASSOCIATION OF REALTORS
1. PURCHASE AND SALE: STEELE HOLDINGS, INC., a Florida Corporation ("BUYER")
agrees to buy and CHAMPION HILLS, INC. ("SELLER") agrees to sell the property
described as: Street Address: ________________________________________
Legal Description: Parcel "A" as further described in attached Exhibit "A",
consisting of the southern (125) one hundred twenty-five feet of U.S. Hwy. 19
frontage.
and the following Personal Property:
None___________________________________________________________________
all collectively referred to as the "Property") on the terms and conditions set
forth below. The "Effective Date" of this Contract is the date on which the last
of the Parties signs the latest offer: Time is of the essence in this Contract.
Time periods of 5 days or less shall be computed without including Saturday,
Sunday, or national legal holidays and any time period ending on a Saturday,
Sunday or national legal holiday shall be extended until 5:00 p.m. on the next
business day.
2. PURCHASE PRICE $312,500.00
-----------
(a) Deposit to be held in escrow by Wilson, Wilson & Long Attys
Escrow, see Addendum $15,000.00
----------
(b) Additional deposit to be made within ______ days from
Effective Date $ ________
(c) Total mortgages (as referenced in Paragraph 3) $ ________
(d) Other: ________________________________________________ $_________
(e) Balance to close, subject to adjustments and prorations,
to be made with cash, locally drawn certified or
cashier's check or wire transfer. $ 297,500.0
3. THIRD PARTY FINANCING: Within ____ days from Effective Date ("Application
Period"), BUYER shall, at BUYER'S expense, apply for third party financing in
the amount of $_____________ or __________% of the purchase price to be
amortized over a period of ________ years and due in no less than ________ years
and with a fixed interest rate not to exceed prevailing rate _______% at
origination, with additional terms as follows:
_____________________________________Buyer shall pay for the mortgagee title
insurance policy and for all loan expenses, SELLER shall timely provide any and
all credit, employment, financial, estoppel letters and other information
reasonably required by any lender. BUYER shall notify SELLER immediately upon
obtaining financing or being rejected by a lender. If BUYER, after diligent
effort, fails to obtain a written commitment within _______ days from Effective
Date ("Financing Period"), BUYER shall either:
(a) waive this financing contingency and proceed with closing or
(b) reapply at SELLER'S request and at BUYER'S SELLER'S expense for
financing at an alternate lender selected by SELLER. Reapplication shall be
made within _______ days from SELLER'S request. If SELLER does not request
reapplication, either party may terminate this Contract by written notice
to the other party.
4. TITLE: SELLER has the legal capacity to and shall convey marketable title to
the Property by statutory warranty deed other __________________________, free
of liens, easements and encumbrances of record or known to SELLER, but subject
to property taxes for the year of closing; covenants, restrictions and public
utility easements of record; and (list any other matters to which title will be
subject) __________________________________________________________________
_______________________________; provided there exists at closing no violation
of the foregoing and none of them prevents BUYER'S intended use of the Property
as commercial car wash facility.
(a) Evidence of Title: SELLER shall, at SELLER'S BUYER'S expense and within
Ten days from Effective Date prior to Closing Date from date BUYER meets or
waives financing contingency in Paragraph 3, deliver to BUYER an abstract
of title, prepared or brought current by an existing abstract firm or
certified as correct by an existing firm. a title insurance commitment by a
Florida licensed title insurer and, upon BUYER recording the deed, an ALTA
owner's policy in the amount of the purchase price for fee simple title
subject only to exceptions stated above.
BUYER shall, within 15 days from receipt of the abstract or 7 days from receipt
of the commitment, deliver written notice to SELLER of title defects. Title
shall be deemed acceptable to BUYER if (1) BUYER fails to deliver proper notice
of defects or (2) BUYER delivers proper notice and SELLER cures the defects
within 30 days from receipt of the notice ("Curative Period"). If the defects
are cured within the Curative Period, closing shall occur within 10 days from
receipt by BUYER of notice of such curing. SELLER may elect not to cure defects,
if SELLER reasonably believes any defect cannot be cured within the Curative
Period. If the defects are not cured within the Curative Period, BUYER shall
have 10 days from receipt of notice of SELLER'S inability to cure the defects to
elect whether to terminate this Contract or accept title subject to existing
defects and close the transaction without reduction in purchase price. (b)
Survey: (check one) SELLER shall, within _______ days from Effective Date,
deliver to BUYER copies of surveys, plans, specifications, and engineering
documents, if any, prepared for SELLER or in SELLER'S possession, which show all
currently existing structures. BUYER shall at BUYER'S expense and within the
time period allowed to deliver and examine title evidence, obtain a current
certified survey of the Property from a registered surveyor. If the survey
reveals encroachments on the Property or that the improvements encroach on the
lands of another, BUYER shall accept the Property with the existing
encroachments such encroachments shall constitute a title defect to be
cured within the Curative Period. (c) Ingress and Egress: SELLER warrants that
the Property presently has ingress and egress sufficient for BUYER's intended
use of the Property, title to which is in accordance with Paragraph 4 (d)
Possessions: SELLER shall deliver possessions and keys for all locks and alarms
to BUYER at closing.
5. CLOSING DATE AND PROCEDURE : This transaction shall be closed in Pinellas
County, Florida on or before the ____________,19_____ or within 155 days from
the Effective Date ("Closing Date"), unless otherwise extended herein.
SELLER BUYER shall designate the closing agent. BUYER and SELLER
shall, within 150 days from Effective Date, deliver to Escrow Agent signed
instructions which provide for closing procedure. If an institutional lender is
providing purchase funds, lender requirements as to place, time of day, and
closing procedures shall control over any contrary provisions in this Contract.
(a) Costs: BUYER shall pay taxes and recording fees on notes,
mortgages and financing statements and recording fees for the deed.
SELLER shall pay taxes on the deed and recording fees for documents
needed to cure title defects. If SELLER is obligated to discharge any
encumbrance at or prior to closing and fails to do so, BUYER may use
purchase proceeds to satisfy the encumbrances.
(b) Documents: SELLER shall provide the deed, bill of sale, mechanic's
lien affidavit, assignments of leases, updated rent roll, tenant and
lender estoppel letters, assignments of permits and licenses,
corrective instruments and letters notifying tenants of the change in
ownership/rental agent. If any tenant refuses to execute an estoppel
letter, SELLER shall certify that information regarding the tenant's
lease is correct. If SELLER is a corporation, SELLER shall deliver a
resolution of its Board of Directors authorizing the sale and delivery
of the deed and certification by the corporate Secretary certifying
the resolution and setting forth facts showing the conveyance conforms
with the requirements of local law. SELLER shall transfer security
deposits to BUYER. BUYER shall provide the closing statement,
mortgages and notes, security agreements and financing statements.
(c) Taxes, Assessments, and Prorations: The following items shall be
made current and prorated as of Closing Date as of
________________________________: real estate taxes, bond and
assessment payments assumed by BUYER, interest, rents, association
dues, insurance premiums acceptable to BUYER, and
_______________________. If the amount of taxes and improvements and
assessments for the current year cannot be ascertained, rates for the
previous year shall be used with due allowance being made for
improvements and exemptions. SELLER is aware of the following
assessments affecting or potentially affecting the Property:
__________________________________________. BUYER shall be responsible
for all assessments of any kind which become due and owing on or after
Effective Date, unless the improvement is substantially completed as
of Closing Date, in which case SELLER shall be obligated to pay the
entire assessment. (d) FIRPTA Tax Withholding: The Foreign Investment
in Real Property Act ("FIRPTA") requires BUYER to withhold at closing
a portion of the purchase proceeds for remission to the Internal
Revenue Service ("I.R.S.") if SELLER is a "foreign person" as defined
by the Internal Revenue Code. The parties agree to comply with the
Provisions of FIRPTA and to provide, at or prior to closing,
appropriate documentation to establish any applicable exemption from
the withholding requirement. If withholding is required and BUYER does
not have cash sufficient at closing to meet the withholding
requirement, SELLER shall provide the necessary funds and BUYER shall
provide proof to SELLER that such funds were properly remitted to the
I.R.S.
6. ESCROW: BUYER and SELLER authorize Wilson, Wilson & Long PA Atty's Escrow
Fund Telephone: (813) 785-1176 Facsimile: 785-2708 Address: 31608 U.S. Hwy 19 N.
Palm Harbor, Fl 34684 to act as "Escrow Agent" to receive funds and other items
and, subject to clearance, disburse them in accordance with the terms of this
Contract. Escrow Agent will deposit all funds received in a non-interest bearing
escrow account. an interest bearing escrow account with interest accruing to
_________________________________________________________________. If Escrow
Agent receives conflicting demands or has good faith doubt as to Escrow Agent's
duties or liabilities under this Contract, he/she may (a) hold the subject
matter of the escrow until the parties mutually agree to its disbursement or
until issuance of a court order or decision of arbitrator determining the
parties' rights regarding the escrow or (b) deposit the subject matter of the
escrow with the clerk of the circuit court having jurisdiction over the dispute.
Upon notifying the parties of such action, Escrow Agent shall be released from
all liability except for the duty to account for items previously delivered out
of escrow. If a licensed real estate broker, Escrow Agent shall comply with
applicable provisions of Chapter 475, Florida Statutes. In any suit or
arbitration in which Escrow Agent is made a party because of acting as agent
hereunder or interpleads the subject matter of the escrow, Escrow Agent shall
recover reasonably attorney's fees and costs, which such fees and costs to be
paid from the escrowed funds or equivalent and charged and awarded as court or
other costs in favor of the prevailing party. The parties agree that Escrow
Agent shall not be liable to any person for misdelivery to BUYER and SELLER of
escrowed items, unless the misdelivery is due to Escrow Agent's willful breach
of this Contract or gross negligence.
7. PROPERLY CONDITION: SELLER shall deliver the Property to BUYER at the time
agreed in its present "as is" condition, ordinary wear and tear excepted, and
shall maintain the landscaping and grounds in a comparable condition. SELLER
makes no warranties other than marketability of title. By accepting the Property
"as is", BUYER waives all claims against SELLER for any defects in the property.
(a) As Is: BUYER has inspected the Property or waives any right to inspect
and accepts the Property. (b) As Is With Right of Inspection: BUYER may, at
BUYER'S expense and within _____ days from Effective date ("Inspection
Period") , conduct inspections, tests and investigations of the Property as
BUYER deems necessary to determine suitability for BUYER'S intended use.
SELLER shall grant reasonable access to the Property to BUYER, its agents,
contractors and assigns for the purpose of conducting the inspections,
however, that all such persons enter the Property and conduct the
inspections at their own risk. BUYER shall indemnify and hold SELLER
harmless from losses, damages, costs, claims and expenses of nay nature,
including attorney's fees, and from liability to any person, arising from
the conduct of inspections or work authorized by BUYER. BUYER shall not
engage in any activity that could result in a mechanics lien begin filed
against the Property without SELLER'S prior written consent. BUYER may
terminate this Contract by written notice to SELLER prior to expiration of
the Inspection Period if the inspections reveal conditions which are
reasonably unsatisfactory to BUYER, unless SELLER elects to repair such
conditions to BUYER'S satisfaction. If this transaction does not close,
BUYER shall, at BUYER'S expense, repair all damages to the Property
resulting from the inspections and return the Property to its present
condition. Walk-through Inspection: BUYER may, on the day prior to closing
or any other time mutually agreeable to the parties, conduct a final
"walk-through" inspection of the Property to determine compliance with this
paragraph and to ensure that all Property is on the premises. No new issues
may be raised as a result of the walk-through. Radon Gas: Radon is a
naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who
are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from you county public
health unit.
8. Deleted.
9. RETURN OF DEPOSIT: In the event any condition of this Contract is not met and
BUYER has acted in good faith and with the required degree of diligence, BUYER'S
deposit shall be returned and this Contract shall terminate.
10. DEFAULT: (a) In the event the sale is not closed due to any default or
failure on the part of SELLER other than failure to make the title marketable
after diligent effort, BUYER may either (1) receive a refund of BUYER'S deposit
(s) or (2) seek specific performance. If BUYER elects a deposit refund, SELLER
shall be liable to Broker for the full amount of the brokerage fee. (b) In the
event the sale is not closed due to any default or failure on the part of BUYER,
SELLER may either (1) retain all deposit(s) paid or agreed to be paid by BUYER
as agreed upon liquidated damages, consideration for the execution of this
Contract, and in full settlement of any claims, upon which this Contract shall
terminate or (2) seek specific performance. If SELLER elects to retain the
deposit, BUYER shall be liable to Broker for the full amount of the brokerage
fee.
11. ATTORNEY'S FEES AND COSTS: In any claim or controversy arising out of or
relating to this Contract, the prevailing party, which for purposes of this
provision shall include BUYER, SELLER, and Broker, shall be awarded reasonable
attorney's fees, costs and expenses.
12. BROKERS: Neither BUYER nor SELLER has utilized the services of , or for any
other reason owes compensation to, a licensed real estate Broker other than:
(a)Listing Broker: Boardwalk Enterprises Real Estate Co., Inc. (5%), who is
an agent of SELLER both parties X neither party and who will be compensated
by SELLER X BUYER both parties pursuant to X a listing agreement other
(specify)
(b)Cooperating Broker: none who is an agent of BUYER SELLER both parties
neither party and who will be compensated by BUYER SELLER both parties
pursuant to an MLS or other offer of compensation to a cooperating broker
other (specify) ___________________________________________ (collectively
referred to as "Broker") in connection with any act relating to the
Property, including but not limited to inquiries, introductions,
consultations and negotiations resulting in this transaction. SELLER and
BUYER agree to indemnify and hold Broker harmless from and against losses,
damages, costs and expenses of any kind, including reasonable attorney's
fees, and from liability to any person, arising from (1) compensation
claimed which is inconsistent with the representation in this Paragraph,
(2) enforcement action to collect a brokerage fee pursuant to Paragraph 10,
(3) any duty accepted by Broker at the request of BUYER or SELLER, which
duty is beyond the scope of services regulated by Chapter 475, F.S., as
amended, or (4) recommendations of or services provided and expenses
incurred by any third party whom Broker refers, recommends or retains for
or on behalf of BUYER or SELLER.
13. ASSIGNABILITY; PERSONS BOUND: This Contract X is not assignable. The terms
"BUYER," "SELLER," and "Broker" may be singular or plural. This Contract is
binding upon BUYER, SELLER, and their heirs, personal representatives,
successors, and assigns (if assignment is permitted).
14. OPTIONAL CLAUSES: (Initial if any of the following clauses are applicable
and are attached as an addendum to this Contract):
___ Arbitration ___ SELLER Warranty ___Coastal Construction Control Line
___ Section 1031 Exchange ___ SELLER Financing ___ Flood Area Hazard Zone
___ Properly Inspection and Repair ___ Existing Mortgage ___ Properly Located
___ SELLER Representations ___Feasibility Study in Uninc. Metro.
X Other Exhibit A. & Addendum Dade County
15. MISCELLANEOUS: The terms of this Contract constitute the entire agreement
between BUYER and SELLER. Modifications to this Contract shall not be valid or
binding unless in writing and executed by the party to be bound. This Contract
may be executed in two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one instrument. A facsimile
copy of this Contract and any initials or signature thereon shall be deemed as
original. This Contract shall be construed under Florida law and shall not be
recorded in any public records. Delivery of any written notice to any party's
agent shall be deemed delivery to that party.
THIS IS INTENDED TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK
THE ADVICE OF AN ATTORNEY PRIOR TO SIGNING. A REAL ESTATE BROKER IS QUALIFIED TO
ADVISE ON REAL TRANSACTIONS. BUYER AND SELLER ARE ADVISED TO CONSULT AN
APPROPRIATE PROFESSIONAL FOR LEGAL, TAX, ENVIRONMENTAL AND OTHER SPECIALIZED
ADVICE.
DEPOSIT RECEIPT: Deposit of $15,000 by X ____________ check other
________________ received on August 26, 1997 by
________/s/__________________
Signature of Escrow Agent
OFFER: BUYER offers to purchase the Property on the above terms and conditions.
Unless acceptance is signed by SELLER and a signed copy delivered to BUYER or
BUYER'S agent no later than ________ a.m. p.m. on _____________, 19____,
BUYER may revoke this offer and receive a refund of all deposits.
Date: 9/7/97 BUYER: __________Steele Holdings, Inc.___Tax ID No: ___________
Title: By: Rachel Steele, President Telephone:________Facsimile:________
Address: ____________17521 Crawley Road, Odessa, Fl 33556_______________
Date: __________ BUYER: ___________/s/______ Tax ID No: __________________
Title: __________________Telephone: ____________ Facsimile:____________
Address: _______________________________________________________________
ACCEPTANCE: SELLER accepts BUYER'S offer and agrees to sell the Property on the
above terms and conditions
( subject to the attached counter offer).
Date: 8/7/97 SELLER: Champion Hills, Inc. Tax ID No: ______________________
Title: By: Lawrence L. Leahan, President Telephone: (813) 789-5010
Facsimile: ___
Address 31622 US 19 N. Palm Harbor, Fl 34684
Date: __________ SELLER: _____________ Tax ID No: ______________________
Title: ________ Telephone: ___________ Facsimile: _________________
Address ______________________________________________________________
<PAGE>
ADDENDUM TO CONTRACT FOR SALE AND PURCHASE
1. The subject Property currently requires approval by governmental
regulatory agencies for site construction. This contract is contingent
on receiving site plan approval from the Pinellas County Planning
Department agency. Buyer and Seller shall cooperate in obtaining the
site plan approval and shall have a period of one-hundred and fifty
(150) days from effective date in which to obtain said plan approval.
Should said governmental agencies fail to approve site plans within the
150 day period, then either Buyer or Seller may terminate this
contract, whereby Buyer and Seller shall be relieved of any further
obligation to the other.
2. Closing shall take place within five (5) days of receipt of approval by
the Pinellas County Planning Department for the proposed development.
3. Buyer and its agents shall have the right during the term of this
contract for sale and purchase to enter upon the real property, or any
part thereof, for the purpose of causing soils tests, surveys, and
studies for engineering and related activities incident to the
development of the real property. Provided however, Buyer shall
immediately restore any damage to such property caused by such tests or
otherwise by reason of such entry at Buyers' sole expense.
4. Buyer and Seller hereby acknowledge that the subject property is a
portion of an approximate two acre parcel that will be masterplanned as
one development. Buyer and Seller agree to split the following costs on
a fifty-fifty basis, having said costs determined by the project
engineer based upon the review of the site construction contract;
o Construction of the entry feature from the property to U.S. Hwy.
19, including all improvements to the acceleration and deceleration
lanes,
o Construction of the stormwater retention areas.
5. Escrow Deposit as described in Paragraph 2(a) of the contract, in the
amount of $15,000.00 dollars, shall be used towards site plan
engineering costs and disbursed by escrow agent directly to the project
engineering firm on a cost incurred basis. Said escrow deposit shall be
applied towards the contract purchase price. Seller warrants that the
civil engineering contract cost shall not exceed $15,000.00 dollars. In
the event that is does, Seller will pay 100% of the excess $15,000.00
dollars less 50% of the civil engineering costs directly applicable to
the retention pond and the curb cut. Regulatory agencies permitting
fees shall be paid directly by the Buyer.
6. Buyer hereby acknowledges that the Listing Broker has disclosed an
ownership interest in the subject property.
7. It is the intent of this agreement to provide Buyer twenty (20) days
from the effective date during which to confirm zoning, utilities, site
preparation costs, conceptual site plan layout, permitting fees,
financing and other information related to the application of the
subject property to their intended use.
8. Seller hereby agrees to grant Buyer and appropriate extension of time
for site plan approvals if such approvals are delayed by an Act of God.
HEREBY AGREED TO THIS 7 DAY OF August, 1998.
by: /s/ Champion Hills, Inc. by: /s/ Steele Holdings, Inc.
Buyer
By: Lawrence P. Leahan, President By: Rachel Steele, President
Witnessed By: _______/s/____________
<PAGE>
Exhibit A
Section 6, Township 28, South Range 16 East
Pinellas County Florida
Sketch of 2.0 Acre M.O.L. Commercial Site
Note: THIS IS A SKETCH NOT A SURVEY.
LMA
Landon, Moree & Associates
Civil & Environmental Engineers
Planners - Surveyors
31622 U.S. 19 North, Palm Harbor, Florida 34684
Phone (813) 789-5010, Fax (813) 787-4394
