Exhibit 10.1
AGREEMENT BETWEEN OWNER AND CONTRACTOR
where the basis of payment is the
COST OF WORK PLUS A FEE
NOT TO EXCEED A GUARANTEED MAXIMUM PRICE
THIS AGREEMENT
made and entered into as of the 24th day of December, 2003,
BETWEEN the Owner: Premier Entertainment, L.L.C.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter referred to as the "OWNER")
And the Contractor: ▇▇▇ ▇▇▇▇▇▇▇▇ Corp
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter referred to as the "CONTRACTOR")
(Owner and Contractor to be sometimes hereinafter individually and collectively
referred to as the "PARTY" and/or "PARTIES");
The Project is: Hard Rock Hotel and Casino
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter referred to as the "PROJECt" or
"PROJECT SITE").
The Architect is: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter referred to as the "ARCHITECT").
Owner and Contractor agree as set forth below:
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 1
ARTICLE 1
THE CONTRACT DOCUMENTS
1.1 The contract documents (hereinafter referred to as "CONTRACT DOCUMENTS")
consist of this Agreement; the following exhibits attached to and made a part of
this Agreement:
EXHIBIT "A" the General Conditions of the Contract of Construction, AIA
Document A201, 1997 edition
EXHIBIT "B" Specifications
EXHIBIT "C" Drawings
EXHIBIT "D-1" Specifications for the Hard Rock Cafe Shell
EXHIBIT "D-2" Specifications for the Hard Rock Retail Store Shell
EXHIBIT "E" Project Schedule
EXHIBIT "F" Schedule of Values
EXHIBIT "G" Contractor's Assumptions, Qualifications and Clarifications to
Guaranteed Maximum Price, and Schedule of Allowances
EXHIBIT "H" Schedule of Liquidated Damages for Late Completion
EXHIBIT "I" Schedule of Bonus for Early Completion
EXHIBIT "J" Form of Payment and Performance Bond
EXHIBIT "K" Rental Rates for Equipment Rented from Contractor
EXHIBIT "L" Description of Preconstruction Phase Costs
EXHIBIT "M" Mississippi Tax-Related Procedures (together with attachments
thereto)
EXHIBIT "N" Form of Barge Subcontract between Contractor and Corn Island
Shipyard, Inc.
and Addenda issued prior to execution of this Agreement; and Modifications
issued after execution of this Agreement. These form the contract (hereinafter
referred to as the "CONTRACT"), and all are as fully a part of the Contract as
if attached to this Agreement or repeated herein. An enumeration of the Contract
Documents appears in ARTICLE 23. If anything in the Contract Documents is
inconsistent with this Agreement, this Agreement shall govern, as set forth in
ARTICLE 23. The Contract represents the entire and integrated agreement between
the Parties hereto and supersedes prior negotiations, representations or
agreements, either written or oral.
ARTICLE 2
THE WORK OF THIS CONTRACT
2.1 Contractor shall execute the entire work of the Contract for the Hard
Rock Hotel & Casino development project (hereinafter referred to as the "WORK")
described in the Contract Documents, and reasonably inferable by the Contractor
as necessary to provide the result indicated by the Contract Documents, except
to the extent specifically indicated in the Contract Documents to be the
responsibility of others. The BASE SCOPE OF WORK shall include a three-hundred
six (306) room, eleven (11) story hotel tower, a casino barge, a low-rise
transition building with adjoining resort style pool and beach area, a free
standing Parking Garage with six
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 2
elevated floors and containing approximately 1,608 parking spaces, surface
parking, and the associated site development, infrastructure and utilities
system.
2.1.1 BASE SCOPE OF WORK
The Hotel shall have a footprint of approximately 20,000 sf., eleven (11)
stories with a total square footage of 234,500 sf. The first level of the hotel
shall include a Hard Rock Cafe (7,200 sf), hotel lobby (2,474 sf), a promenade
(3,900 sf), retail space (3,120 sf), and a restaurant (5,700 sf). Typical Hotel
Guest Rooms shall start from levels 2 thru 11 totaling two-hundred eighty-two
(282) typical guest rooms (420 sf each) and twenty-four (24) suites. Level two
(2) shall also accommodate a Health Club/spa facility (7,850 sf) and there will
be a separate Club at the top floor of the hotel. The hotel structure shall be
constructed of cast-in-place, post-tensioned, concrete. The Facade shall be a
combination of EIFS assembly and an aluminum frame curtain wall system with
insulated glazing units. The structure shall sit on a pile foundation with grade
beams.
The Casino shall be comprised of an 85,000 sf barge that will sit in tidal
waters, tethered to the bottom of the channel to remain at a constant level. The
exterior walls and roof of the barge shall be built independently from the barge
on pilings around the barge. The same superstructure shall also serve as
breakwater containment, as well as the extension boat slip marina. The roof
structure shall clearspan the 213' width of the barge with a barrel truss
design. The Barge shall house 48,400 sf of Gaming Area, a 13,000 sf Buffet and
Bakery with 6,450 sf of Kitchen and Servery space, the main Casino Cashier
(4,030 sf), a Steak House and Bar (5,190 sf), and a Center Bar (2,360 sf). The
Low-rise structure shall be 2 stories with a mezzanine and a total of 163,000 sf
of space, and shall have an adjoining resort style pool and beach area. The
first level of the low rise (52,640 sf) shall contain the Hard Rock Live
Performance Center (12,000 sf), an overhead connecting bridge between the casino
and parking garage structure, with "white box" spaces along the connecting
bridge for future tenants (6,000 sf), public restrooms, and an arcade. The
second level of the low-rise (40,000 sf) shall house administration office space
(6,200 sf), central plant area (5,510 sf) electrical room (4,140 sf), white box
spaces for future development (6,450 sf), security, surveillance, and the
circulation spaces. A Mezzanine level shall contain a balcony for the Hard Rock
Live, a VIP Lounge also for the Hard Rock Live area, toilets, green room, and
dressing rooms front office spaces (6,100 sf), housekeeping (3,030 sf), uniform
storage (504 sf), L&F supplies and sewing area (944 sf), linen storage (1515 sf)
electrical equipment room (2,560 sf), AHU room (5,070 sf.), employee toilets,
employee dining, and employee uniform area. The structure for the low-rise shall
be structural steel frame, with concrete and steel composite decks. The
foundation shall be comprised of piles and concrete grade beams.
The Parking Garage provides a total of 1,608 spaces that include 1,238 self-park
spaces for patrons and employees, 320 valet parking spaces, 50 dedicated spaces
for the small craft harbor and 3 bus arrival spaces. The total square footage of
the parking structure is approximately 520,000 sf. In addition to the parking
structure an additional 72 on-grade parking spaces are provide under the low
rise as VIP/Valet parking.
The Contractor also shall have the responsibility for causing the Barge
Contractor (as hereinafter defined) to construct the barges vessels upon which
the casino will be constructed
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 3
Contractor shall construct the Hard Rock cafe shell and the Hard Rock retail
store shell in accordance with the requirements set forth in Exhibit C of the
Hard Rock Cafe lease and the Hard Rock retail store lease, respectively, copies
of which are attached hereto as EXHIBIT "D -1" and EXHIBIT "D-2", respectively.
Contractor acknowledges having received a copy of the construction exhibit to
each of the Hard Rock Cafe lease and the Hard Rock retail store lease, and
agrees that the Base Scope of Work will include the construction requirements of
each of the Hard Rock Cafe lease and the Hard Rock retail store lease, as set
forth on such exhibits.
2.1.2 DESIGN/BUILD SCOPE OF WORK
The Contractor will have Design/Build responsibilities for the Parking Garage.
The design documents prepared by the Contractor for the Parking Garage are
herein referred to as the "Contractor Prepared Documents". The design build
professional selected by Contractor for the Parking Garage shall be subject to
approval by Owner and Architect, which approval shall not be unreasonably
withheld.
2.1.3 For all professional design services or certifications by a design
professional related to systems, materials or equipment comprising the Parking
Garage, the Architect shall review the performance and design criteria prepared
by the Contractor to assure that the performance and design criteria specified
are consistent with the overall intent and design of the Project, and such
performance and design criteria shall be incorporated into the Specifications.
The Contractor shall cause such design services or certifications to be provided
by a properly licensed design professional, licensed in the State of
Mississippi, whose signature and seal shall appear on all drawings,
calculations, specifications, certifications, Shop Drawings and other submittals
prepared by such design professional. All design professionals furnishing the
delegated design shall obtain and maintain professional liability insurance as
required under Section 11.1.8 and all pertinent articles of A201 General
Conditions attached as EXHIBIT "A" to this Agreement. The Contractor shall
obtain from all such design professionals and provide to Owner, prior to their
work being performed, valid certificates of insurance providing evidence of such
insurance. The Contractor acknowledges that it is legally liable to the Owner
for professional liability relating to and arising from the design and
engineering performed by the design-build professional for the Parking Garage,
subject to the provisions of PARAGRAPH 17.4 below. Shop Drawings and other
submittals related to the Work designed or certified by such design-build
professional, if prepared by others, shall bear such professional's written
approval when submitted to the Architect. The Owner and the Architect shall be
entitled to rely upon the adequacy, accuracy and completeness of the services,
certifications or approvals performed by such design-build professionals.
The Architect and/or its subcontractors shall review the Contractor Prepared
Documents prepared by or on behalf of the Contractor for conformance to all
design and performance criteria set forth in the Specifications, provided,
however, that such review by Architect and/or its subcontractors shall not
relieve the Contractor or its design-build professional from responsibility and
liability for compliance with the design and performance criteria of the Parking
Garage. The Owner shall be entitled to rely upon (i) the adequacy, accuracy, and
completeness of the design and performance criteria reviewed by the Architect
describing the delegated services, and (ii) the Architect's review of the
Contractor Prepared Documents. The Architect will review, approve or take other
appropriate action or submittals (1) for the purpose
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 4
of checking for conformance with information given and the design concept
expressed in the Contract Documents, and (2) to assure that the design conforms
with all design and performance criteria set forth in the Specifications.
2.2 The Hard Rock hotel and casino development is located south of Highway
90 on the real property (hereinafter referred to as the "PROPERTY") bounded on
the east by Main Street, bounded on the west by the Windjammer Condominiums and
bounded on the south by the Biloxi Small Craft Harbor.
2.3 Contractor understands that Owner intends to obtain construction
financing for the Project ("PROJECT FINANCING"), and in connection therewith,
Owner will enter into a Cash Collateral and Disbursement Agreement (the
"DISBURSEMENT AGREEMENT"), dated subsequent to the date of this Agreement, by
and among Standard Federal--Corporate and Institutional Trust, a division of
LaSalle Bank National Association, as disbursement agent, securities
intermediary and depositary bank (together with any successor disbursement agent
permitted thereunder, the "DISBURSEMENT AGENT"), Standard Federal--Corporate and
Institutional Trust, a division of LaSalle Bank National Association, as trustee
under the Indenture (as defined therein) (together with its successors and
assigns from time to time under the Indenture, the "TRUSTEE"), Professional
Associates Construction Services, Inc., a California corporation (referred to
herein alternatively as "PACS" and the "INDEPENDENT CONSTRUCTION CONSULTANT"),
Premier Entertainment Biloxi LLC (d/b/a Hard Rock Hotel & Casino Biloxi), a
Delaware limited liability company (as successor in interest by merger with
Premier Entertainment, LLC, a
Mississippi limited liability company), and
Premier Finance Biloxi Corp., a Delaware corporation ("PREMIER FINANCE CORP.").
Contractor has reviewed drafts of the Disbursement Agreement through and
including the ▇▇▇▇▇▇ &Watkins draft dated ______, 200_. Owner agrees to provide
Contractor with a true, accurate and complete copy of the Disbursement
Agreement, with all exhibits affixed thereto, after the Disbursement Agreement
is executed by all parties thereto. Contractor acknowledges that the
Disbursement Agreement provides for the execution and delivery by Contractor of
various certifications, schedules, relating to contract amendments, change
orders, amendments to the Project Schedule, amendments to the Project budget,
and in connection with construction disbursements. Subject to review of the
final version of the Disbursement Agreement and confirmation that the terms,
conditions and provisions set forth in the final version of the Disbursement
Agreement are not materially different than the terms, conditions and provisions
set forth in the drafts of the proposed Disbursement Agreement reviewed by
Contractor, Contractor undertakes and agrees to satisfy in good faith and within
the time periods required under the terms of the Disbursement Agreement, or upon
the request of Owner, all requirements set forth therein that are within the
control of Contractor. As used in this Agreement and in the Contract Documents,
the phrase "within the control" of Contractor shall mean and include (i) all
certifications, schedules, information and documentation required to be
delivered by Contractor under the terms of the Disbursement Agreement, and
Contractor shall make all statements provided in such certificates, unless such
statements would be untrue or incorrect with respect to the facts then known to
Contractor at the time when such certificate is made, and (ii) providing to
Owner and/or the Independent Construction Consultant in a timely manner any and
all information and documentation within the control of Contractor required to
be delivered by Owner and/or the Independent Construction Consultant under the
terms of the Disbursement Agreement and all exhibits and schedules provided for
and/or contemplated thereunder.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 5
ARTICLE 3
RELATIONSHIP OF THE PARTIES
3.1 Contractor accepts the relationship of trust and confidence established
by this Agreement and covenants with Owner to cooperate with Architect and
utilize Contractor's best skill, efforts, and judgment in furthering the
interests of Owner; to furnish efficient business administration and
supervision; to furnish at all times an adequate supply of skilled workers and
materials; and to perform the Work in the best way and most expeditious and
economical manner consistent with the interests of Owner. Owner agrees to
cooperate with Contractor by approving, in a timely manner, information
requested of Owner by Contractor, and by executing, in a timely manner, all
Direct Purchase Documents (as defined in EXHIBIT "M" attached hereto) and making
payments to Contractor and to vendors, suppliers and contractors on account of
Direct Purchase Items (as defined in EXHIBIT "M" attached hereto) (subject in
each case to the conditions set forth in this Agreement) and in accordance with
requirements of the Contract Documents. Owner and its Architect, as required,
shall cooperate with Contractor's reasonable suggestions as to construction
methods, phasing, and materials, in order to define the scope of the Work
(hereinafter referred to as the "SCOPE OF THE WORK") within the limits of the
Guaranteed Maximum Price (hereinafter referred to as the "GMP" as defined in
PARAGRAPH 5.2 below).
3.2 With the exception of the Design/Build services to be provided by
Contractor, referenced in ARTICLE 2, SECTIONS 2.1.2 and 2.1.3, the services to
be performed by Contractor under this Agreement shall not constitute it an
architect; and this Agreement shall not impose on Contractor any obligation to
assume, render to or perform on behalf of Owner the professional
responsibilities, duties, services and activities with respect to design of the
Project for which Owner has contracted with Architect. Contractor assumes no
responsibility or liability in connection with the design of the Project or the
failure of Architect to provide designs or otherwise perform its obligations
under any agreements between Owner and Architect, and the performance by
Contractor of its duties hereunder shall not relieve Architect from any
responsibilities or liabilities for services on the Project required under any
such agreements. Notwithstanding the foregoing, in the event Contractor becomes
aware of errors or omissions of any kind relating to design of the Project or
the failure of Architect to perform its obligations under any agreements between
Owner and Architect, Contractor shall promptly report the same to Owner, which
report shall be made in writing.
3.3 REPRESENTATIVES
Upon execution of this Agreement, Owner shall designate, in writing, to
Contractor the name of the Party who is to be "OWNER'S REPRESENTATIVE" with full
authority to execute any and all instruments requiring Owner's signature and to
act on behalf of Owner with respect to all matters arising out of this
Agreement. The Owner's Project representative is hereby designated to be ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, who has been authorized to make decisions on behalf of the Owner
regarding the Project. Owner reserves the right to designate a substitute
Owner's Project representative, upon written notice to Contractor, which written
notice shall define the scope of such Project representative's authority to make
decisions on behalf of Owner regarding the Project. In addition, Contractor
acknowledges that Owner has retained Professional Associates Construction
Services, Inc. as an Independent Construction Consultant. Contractor agrees to
cooperate with
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 6
the Independent Construction Consultant in assisting the Independent
Construction Consultant to perform its duties and obligations under the
Disbursement Agreement (as hereinafter defined), and to take such further steps
as Owner and/or the Independent Construction Consultant may reasonably request
in order to facilitate the performance by the Independent Construction
Consultant of its duties and obligations under the Disbursement Agreement.
Upon execution of this Agreement, Contractor shall designate in writing to Owner
the name of the Party who is to be "CONTRACTOR'S REPRESENTATIVE" with full
authority to execute any and all instruments requiring Contractor's signature
and to act on behalf of Contractor with respect to all matters arising out of
this Agreement. The Contractor's Project Representative is hereby designated to
be ▇▇▇▇ ▇▇▇▇ and the Contractor's Superintendent is hereby designated to be
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Contractor shall not replace its Project Representative or
its Superintendent without the Owner's prior written approval, which approval
shall not be unreasonably withheld by Owner. The Contractor shall promptly
replace its Project Representative or its Superintendent upon the Owner's
reasonable request, which request shall be made in writing.
ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of commencement (hereinafter referred to as "COMMENCEMENT
DATE") is the date from which the contract time of PARAGRAPH 4.2 is measured; it
shall be deemed to have occurred when: (1) the Owner has issued the Notice to
Proceed to the Contractor, and (2) the condition precedent for the Contractor
starting work set forth in Section 4.8 has been satisfied.
4.1.1 With respect to the Commencement Date under the Contract Documents, the
Contractor understands and agrees that in order for the Owner to close on the
Project Financing for the Project, the Contractor must first perform the
following: (1) obtain all necessary governmental approvals required to commence
construction under PARAGRAPH 3.7.1 of the General Conditions; (2) provide the
Owner with valid insurance certificates evidencing the coverages required
hereunder; and (3) provide the Owner with a Payment Bond and a Performance Bond
(referred to herein collectively as the "BOND") in the form attached hereto as
EXHIBIT "J", which Bond shall name as co-obligees the Owner and the Trustee (as
defined in PARAGRAPH 2.3 above). The Contractor agrees to use its best efforts
to accomplish the items described in clauses (1), (2) and (3) above so that the
Project Financing can occur on or before January 21, 2004. The Project Schedule
has a commencement date of February 2, 2004. The Project Schedule assumes that
the required permits and approvals will be obtained on a timely basis as shown
by the milestone dates on the Project Schedule. The Project Schedule assumes
that the Project Financing will be closed and Owner will issue the notice to
proceed to Contractor on or before February 2, 2004.
4.1.2 Contractor acknowledges that its has obtained from the Architect
sufficient architectural and civil engineering plans to enable Contractor to
obtain permits and related approvals for commencement of construction of the
initial phase of the Work (demolition, grading, site work, underground site
work, plumbing packages and foundations) in accordance with the Project
Schedule. Except for such permits and approvals, Owner and Contractor
acknowledge that not all final permits and related approvals will have been
obtained as of the
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 7
Commencement Date, because the Architect will not have provided complete
Drawings and Specifications for the Project as of the Commencement Date. Owner
shall cause the Architect to cooperate with Contractor, and Contractor shall
cooperate with the Architect, in an effort to obtain all final permits and
approvals on a timely basis, and Contractor agrees to use all diligent efforts
to obtain same to maintain the dates in the Project Schedule. Contractor shall
not be liable for, and shall be entitled to appropriate time extensions and
other relief and/or additional direct costs (but not consequential damages),
proven to be the result of actual impacts to the Project Schedule in the event
the Architect does not provide Drawings and Specifications which are
sufficiently complete to allow Contractor to obtain all of the permits and other
approvals by the milestone dates set forth in the Project Schedule.
4.1.3 Neither the Contractor nor any of its Subcontractors or suppliers shall
supply any labor or materials for the Work until the Project Financing has
closed. The Contractor intends to commence the Work on or before February 2,
2004.
4.1.4 The Owner shall direct Contractor to commence the Work by issuing to the
Contractor a Notice to Proceed as soon as possible after the closing of the
Project Financing. The Contractor shall be prepared to commence the Work
immediately upon the closing of the Project Financing, and the Contractor shall
commence the Work immediately upon the issuance of the Notice to Proceed,
subject to satisfaction of the condition precedent set forth in SECTION 4.8
below.
4.2 The Contractor shall diligently prosecute the Work and achieve
Substantial Completion of the Work on or before the July 23, 2005 date
(hereinafter referred to as the "SUBSTANTIAL COMPLETION DATE") set forth on the
Project Schedule attached hereto and made a part hereof as EXHIBIT "E", for the
Base Scope of Work as described in PARAGRAPH 2.1. The Substantial Completion
Date may be extended only to the extent expressly provided under the terms of
the Contract Documents. The term "SUBSTANTIAL COMPLETION" or "SUBSTANTIALLY
COMPLETED", as used herein, shall have the meaning set forth in Section 9.8.1 of
the AIA 201 General Conditions attached hereto as EXHIBIT "A", including the
satisfaction of all conditions set forth therein. Except as otherwise provided
by the Contract Documents, Owner shall not be obligated to accept Substantial
Completion of the Work in phases.
4.3 FUTURE SPECIFICATIONS AND DRAWINGS
The Specifications and Drawings listed in EXHIBIT "A" and EXHIBIT "B",
respectively (referred to herein collectively as the "PRELIMINARY SPECIFICATIONS
AND DRAWINGS"), are incomplete at the time this Agreement is executed. Owner and
Contractor contemplate that the Architect will issue further Specifications and
will issue revised, supplemental and additional Drawings. Owner (who may be
represented by the Architect) and Contractor shall jointly approve any
modifications to the Specifications and shall jointly approve any revised,
supplementary, and additional Drawings, which approval shall not be unreasonably
withheld by Contractor. Contractor shall not have the right to increase the
Guaranteed Maximum Price as a result of any such revised, supplemental or
additional Drawings or Specifications, except to the extent any Work shown on
any such subsequently issued Specifications and Drawings is inconsistent with
the Preliminary Specifications and Drawings or the Contractor's assumptions,
clarifications and qualifications itemized on EXHIBIT "G" attached hereto, used
by Contractor in
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 8
developing budgets, pricing and establishing the Guaranteed Maximum Price, as
set forth in PARAGRAPH 5.2 hereof.
4.3.1 Contractor agrees to timely execute and deliver all certificates within
its control required to be delivered by Contractor under the terms of the
Disbursement Agreement regarding final plans and drawings, and Contractor shall
make all statements provided in such certificates, unless such statements would
be untrue or incorrect with respect to the facts then known to Contractor at the
time when such certificate is made. Contractor agrees to (i) cooperate with and
provide to Owner all documentation, data and information requested by Owner
within the control of Contractor, to allow Owner to satisfy the requirements and
conditions for final plan approval set forth in the Disbursement Agreement, and
(ii) complete all schedules to be included with each Progress Payment, where
information required for or contained in such schedules is within the control of
Contractor.
4.4 The projected milestone completion dates in the Project Schedule assume
that Owner will cause Architect to furnish the required design information to
Contractor as needed for the orderly progress of Work. The Project Schedule
further assumes that Owner has secured or will secure adequate financing for the
entire Scope of Work with arrangements to ensure payments are made to Contractor
in accordance with this Agreement. The failure of Owner to cause Architect to
provide the required design information, to make decisions or perform
obligations, or to secure adequate financing by the prescribed dates or to
maintain adequate financing will entitle Contractor to commensurate time
extensions to applicable milestone dates and final completion dates set forth in
the Project Schedule. Contractor shall not be liable for, and shall be entitled
to appropriate time extensions and other relief and/or additional direct costs
(but not consequential damages), based upon proven impacts to the Project
Schedule in the event Owner fails to cause Architect to provide the required
design information, to make decisions or perform obligations, or to secure
adequate financing by the prescribed dates or to maintain adequate financing.
4.5 Except as set forth in PARAGRAPH 4.6 below, under no circumstances shall
Contractor be liable to Owner for any consequential damages, including loss of
use or rental, loss of profit or cost of any financing. Under no circumstances
shall Owner be liable to Contractor for any consequential damages, including
loss of profit or business opportunity.
4.6 Owner and Contractor acknowledge and agree that time is of the essence
with respect to the Contract Documents and all obligations hereunder and under
the Contract Documents. Contractor acknowledges and recognizes that (1) the
Owner is entitled to full and beneficial occupancy and use of the completed Work
following expiration of the Contract Time, and (2) the Owner has entered into,
or will enter into, binding agreements leasing all or part of the premises where
the Work is to be completed based upon the Contractor delivering certain
portions of the Project within the Contract Time, as and when required under the
terms of leases entered into by Owner, including, without limitation, the Hard
Rock Cafe lease and the Hard Rock retail store lease. The Contractor further
acknowledges and agrees that if the Contractor fails to achieve Substantial
Completion of the Work within the Contract Time and as otherwise required by the
Contract Documents, the Owner will sustain extensive damages and serious loss as
a result of such failure, and that the exact amount of such damages will be
extremely difficult to ascertain. Therefore, the Owner and the Contractor agree
as follows in this PARAGRAPH 4.6. If the Contractor fails to achieve Substantial
Completion of the Work within three (3) days of the
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 9
Contract Time and as otherwise required by the Contract Documents, the
Contractor shall pay to Owner, and Owner shall be entitled to retain or recover
from the Contractor, as liquidated damages and not as a penalty, a sum per day
as shown in the sliding scale set forth in EXHIBIT "H" attached hereto, for each
calendar day that Contractor fails to achieve Substantial Completion beyond the
three-day grace period following the Substantial Completion Date in PARAGRAPH
4.2. Contractor shall not be obligated to pay to Owner, and Owner shall not be
entitled to retain or recover from Contractor, maximum total liquidated damages
in excess of One Million Five Hundred Thousand Dollars ($1,500,000.00) on
account of delay by Contractor in achieving Substantial Completion of the Work
in accordance with the Project Schedule. The parties acknowledge and agree that
(i) such liquidated damages are intended to compensate Owner for actual damages
the Owner will suffer and incur as result of delayed Substantial Completion of
the Work (including, without limitation, construction interest related to the
Project Financing) and not as a penalty for delayed Substantial Completion of
the Work; (ii) the amount of Owner's actual damages that will result from such
delayed Substantial Completion of the Work are not readily ascertainable; and
(iii) such liquidated damages constitute a reasonable and good faith
pre-estimate of actual damages the owner will incur as a result of delayed
Substantial Completion of the Work. Liquidated damages, if any, shall cease to
accrue on the date when Contractor achieves Substantial Completion of the Work.
Notwithstanding the foregoing, Contractor shall not be obligated to pay to
Owner, and Owner shall not be entitled to retain or recover from Contractor,
liquidated damages in the event (i) Contractor satisfies all conditions to
achieving Substantial Completion of the Work (as set forth in Section 9.8.1.2 of
the AIA 201 General Conditions attached hereto as EXHIBIT "A") within the
three-day grace period following the Substantial Completion Date, other than the
condition that the value of all Punchlist items are less than the threshold
amount set forth in Section 9.8.1.2 of the A201 General Conditions attached
hereto as EXHIBIT "A", and (ii) the Project is open for business to the public
and generating revenue for the Owner and the use and enjoyment of the Project by
employees, guests and patrons is not materially and adversely affected or
impeded by any item on the Punchlist.
4.6.1 The Owner may deduct liquidated damages described in PARAGRAPH 4.6 of
this Agreement from any unpaid amounts then or thereafter due the Contractor
under this Agreement. Contractor shall pay to Owner any liquidated damages not
so deducted from any unpaid amounts due the Contractor upon demand by the Owner,
together with interest from the date of such demand until the date paid in full,
at a per annum rate equal to the Prime Rate, plus two percent (2%).
4.6.2 Notwithstanding anything to the contrary set forth in PARAGRAPH 4.6
hereof, if the failure of Contractor to achieve Substantial Completion of the
Work within three (3) days of the Contract Time and as otherwise required by the
Contract Documents is attributable solely to the failure of the Barge Contractor
(as hereinafter defined) to complete and launch the barge vessels in accordance
with the terms of the Barge
Construction Contract (as hereinafter defined), and
such failure is not attributable to any act or omission of Contractor or its
employees, agents or representatives, Contractor's obligation to pay liquidated
damages to Owner on account of late delivery of the barge vessels shall be
limited to the amount of liquidated damages provided for in the Barge
Construction Contract. Contractor shall bear the risk of any delays occasioned
by failure of the barge vessels to be constructed in accordance with Plans and
Specifications, or for any defects in construction or workmanship of the barge
vessels.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 10
4.7 If (i) Contractor achieves Substantial Completion more than three (3)
calendar days prior to the Substantial Completion Date in PARAGRAPH 4.2, (ii)
Contractor has provided to Owner sufficient advance notice of such early
completion of the Work to allow Owner to coordinate staging of all other
activities necessary for the Project to open for business to the public early,
and (iii) Owner has the right under existing contracts and agreement with other
parties (including, without limitation, Hard Rock) to accelerate performance by
such other parties necessary for the Project to open for business to the public
early, Owner agrees to pay to Contractor an early completion bonus. Such early
completion bonus shall be based upon the sum per day as shown by the sliding
scale set forth in EXHIBIT "I" attached hereto, for each calendar day that
Contractor achieves Substantial Completion of the Work more than three (3)
calendar days before the Substantial Completion Date in PARAGRAPH 4.2. Owner
shall not be obligated to pay to Contractor, and Contractor shall not be
entitled to recover from Owner, a maximum total bonus in excess of Eight Hundred
Thousand Dollars ($800,000.00) on account of Contractor achieving Substantial
Completion of the Work more than three days earlier than the Substantial
Completion Date in PARAGRAPH 4.2. The obligation set forth herein of Owner to
pay Contractor a bonus for early completion of the Work is expressly conditioned
upon the matters described in clauses (i), (ii) and (iii) of the first sentence
of this PARAGRAPH 4.7.
Any bonus for early completion of the Project due the Contractor under PARAGRAPH
4.7 shall be payable by the Owner to Contractor from consolidated net income
generated from operation of the Project after it is open for business to the
public, if and to the extent any such consolidated net income is available for
disbursement under the restricted payments test contained in the Indenture among
the Owner and the Trustee (dated the same date as the Disbursement Agreement)
and any other thresholds, tests and restrictions provided for in the Project
Financing documentation, and provided that Contractor has satisfied the
conditions to payment of such bonus set forth in PARAGRAPH 4.7 above and the
further condition that Contractor is not in default under the terms of this
Agreement or any of the Contract Documents. Notwithstanding the foregoing, if
Contractor is in default under the terms of this Agreement and (i) such default
can be cured by the payment of money, Owner shall be entitled to deduct from any
bonus due Contractor the full amount of any cost, loss, damage or expense
suffered or incurred by Owner as a result of such default of Contractor, and
Owner shall promptly remit to Contractor the remaining balance, if any, of such
bonus due Contactor, and (ii) such default cannot be cured by the payment of
money, Contractor shall have a reasonable opportunity to cure such default, not
to exceed a period of thirty (30) days (and, provided that Contractor is
diligently and continuously pursuing such action to complete such cure promptly,
Contractor shall be entitled to such additional time as may be reasonable under
the circumstances), provided, however, that if in Owner's reasonable judgment,
Contractor will be unable to effectuate such cure or Contractor fails to utilize
diligent and continuous efforts to pursue such cure, Owner shall be entitled to
deduct from any bonus due Contractor the full amount of any cost, loss, damage
or expense suffered or incurred by Owner as a result of such default of
Contractor, and Owner shall promptly remit to Contractor the remaining balance,
if any, of such bonus due Contactor.
4.8 CONDITION PRECEDENT TO PERFORMANCE OF WORK; ABANDONMENT
Prior to requirement that Contractor commence Work hereunder, Owner agrees to
provide to Contractor evidence reasonably satisfactory to Contractor, prior to
such requirement that Contractor perform any Work hereunder, establishing that,
on or before the Commencement
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 11
Date, Owner has available to it the Project Financing sufficient to completely
pay the contract sum (hereinafter referred to as the "CONTRACT SUM") under this
Agreement, so that Contractor is reasonably assured of the availability of
monies to pay for the Work hereunder. Contractor acknowledges and agrees that
Owner's closing on the Project Financing shall be deemed to constitute such
evidence reasonably satisfactory to Contractor. The issuance by Owner of a
Notice to Proceed to Contractor shall be deemed a representation and warranty by
Owner that the closing on the Project Financing has occurred.
In the event Owner elects to abandon the Project prior to the time that
construction has commenced or obligations have been undertaken by the Contractor
hereunder after closing of the Project Financing, Owner may do so without owing
any obligation to Contractor and provided that no Work is commenced under any
separate written order affecting Property, in which event Owner's obligation (if
any) shall be pursuant to such separate Order and not hereunder. Otherwise, any
termination of this Agreement shall be pursuant to and subject to the
termination for convenience provisions in PARAGRAPH 20.2 below.
Acceptance by Contractor of the Notice to Proceed issued by Owner and
commencement by Contractor of the Work shall conclusively be deemed to mean that
all conditions precedent to commencement of the Work hereunder have been
satisfied or waived by Contractor.
ARTICLE 5
COST OF WORK AND GUARANTEED MAXIMUM PRICE
5.1 Owner agrees to reimburse Contractor for the Cost of Work as defined in
ARTICLE 8 (hereinafter referred to as "COST OF WORK"). Such reimbursement shall
be in addition to Contractor's fee stipulated in ARTICLE 6 (hereinafter referred
to as "CONTRACTOR'S FEE").
5.2 Contractor guarantees to Owner that the aggregate maximum of (i) the
Cost of Work to the Owner for completion of all of the Work (including, without
limitation, all Work reflected in the Schedule of Values attached hereto and
made a part hereof as EXHIBIT "F", which includes the cost of Direct Purchase
Items (as defined in EXHIBIT "M" attached hereto) to be purchased by Owner), and
(ii) the Contractor's Fee for completion of all such Work, shall not exceed the
aggregate sum of Eighty-One Million Nine Hundred Fifty-Seven Thousand One
Hundred Eighty-Three Dollars ($81,957,183) (the "GUARANTEED MAXIMUM PRICE" or
"GMP"); provided, however, that the Guaranteed Maximum Price may be increased or
decreased for changes in the Work, upon the terms and subject to the conditions
set forth in ARTICLE 7. Costs which would cause the GMP to be exceeded shall be
paid by the Contractor without payment, reimbursement or contribution by the
Owner. Contractor's assumptions, qualifications and clarifications used to
develop budgets, pricing and the GMP are itemized in EXHIBIT "G" attached hereto
and made a part hereof. The Schedule of Values and the GMP shall be decreased by
the amount of any sales tax or contractors' tax reflected in the Schedule of
Values associated with Direct Purchase Items purchased by Owner or with other
elements of the Work that are exempt from sales tax or contractors' tax. Direct
Purchase Items shall be component and non-component materials of the Work which,
but for the direct purchase of such items by Owner, Contractor would be
obligated to purchase as part of the Work.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 12
Owner has established a Project contingency fund within the Project Financing in
the amount of $________ (the "PROJECT CONTINGENCY FUND"). The Project
Contingency Fund shall be controlled by Owner and shall not be available to
Contractor, except to the extent expressly permitted hereunder. The Project
Contingency Fund shall not be included within the GMP, nor shall the Project
Contingency Fund be available to Contractor to defray costs associated with or
resulting from unforeseen circumstances arising from or relating to the
performance of the Work. In the event completion of the Specifications and
Drawings shall result in additional work not included in the Base Scope of Work
or which is not consistent with the Preliminary Specifications and Drawings or
the Contractor's assumptions, clarifications and qualifications itemized on
EXHIBIT "G" attached hereto, used by Contractor in developing budgets, pricing
and establishing the GMP hereunder, Contractor shall have the right to request a
Change Order for approval by Owner, which approval shall not be unreasonably
withheld, and which Change Order shall be funded by application of funds from
the Project Contingency Fund, if and to the extent funds are available in the
Project Contingency Fund. Owner agrees to segregate, within the Project
Financing, an amount equal to Five Million Dollars ($5,000,000) of the Project
Contingency Fund. Owner agrees that such segregated portion of the Project
Contingency Fund shall be reserved for application to fund any Change Order
approved by Owner for additional work not included in the Base Scope of Work
resulting from or arising out of completion of the Specification and Drawings.
Forty-five (45) days after the Architect issues final Drawings stamped for
construction, Owner shall not be obligated to reserve any portion of the Project
Contingency Fund for such purposes, and the segregated portion of the Project
Contingency Fund shall be released to the Project for use and application by
Owner consistent with the terms, conditions and provisions of the Disbursement
Agreement. Contractor acknowledges and agrees that the entire amount of any
remaining unapplied Project Contingency Fund shall belong to Owner. The
Contractor will be required to furnish documentation evidencing expenditures
requested pursuant to any such Change Order request prior to the release of
funds from the Project Contingency Fund by the Owner.
5.3 In the event that the aggregate of (i) the Cost of Work, (ii) the
Contractor's Fee and (iii) the amount of the Direct Purchase Items is less than
the Guaranteed Maximum Price, after giving effect to any Change Orders and any
other adjustment(s) provided for herein (other than deductive change orders on
account of Direct Purchase Items and taxes associated therewith), then the
difference between (a) the Cost of Work, including the Contractor's Fee and the
cost of Direct Purchase Items and taxes associated therewith, and (b) the
Guaranteed Maximum Price, is defined herein as "PROJECT SAVINGS". Owner and
Contractor agree that Project Savings shall not include any tax savings
associated with any Direct Purchase Items, or any other taxes relating to items
that are exempt from sales tax or the contractors' tax, and that all tax savings
shall belong solely and exclusively to the Owner, without participation by the
Contractor. Owner and Contractor agree that any Project Savings shall be shared
between Owner and Contractor, in the proportion of seventy-five percent (75%) to
Owner and twenty-five percent (25%) to Contractor, provided, however, that the
Contractor shall not be entitled to receive more than $650,000 on account of
Project Savings. In the event Contractor is entitled to receive a proportionate
share of Project Savings, Owner shall pay such amount to Contractor, as an
additional fee, on or before thirty (30) days after Final Completion of the
Work, except in the event Contractor is in default under the terms of this
Agreement or any of the other Contract Documents, in which event the
Contractor's entitlement to receive a proportionate share of Project Savings
shall be subject to and conditioned upon the same terms and conditions set forth
in the second grammatical
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 13
paragraph of PARAGRAPH 4.7 above applicable to payment to Contractor of early
completion bonus.
ARTICLE 6
CONTRACTOR'S FEE
6.1 In consideration of the performance of the Contract, including
performance of all Work reflected in the Schedule of Values attached hereto and
made a part hereof as EXHIBIT "F", Owner agrees to pay Contractor in current
funds as compensation for its services a Contractor's Fee as follows:
6.1.1 A lump sum amount of Three Million Two Hundred Seventy-Eight Thousand
Two Hundred Eighty-Seven Dollars ($3,278,287) (the "CONTRACTOR'S FEE"). Owner
shall pay to Contractor a proportional amount of the Contractor's Fee with each
progress payment, in the manner provided for in ARTICLE 13, provided, however,
that the Contractor's Fee shall be included within the Guaranteed Maximum Price,
and only shall be payable to Contractor to the extent funds are available within
the Guaranteed Maximum Price. Contractor's Fee shall not be reduced on account
of Direct Purchase Items purchased by Owner.
6.1.2 In addition to the Contractor's Fee specified in PARAGRAPH 6.1.1, to the
extent there are Project Savings, Contractor shall be entitled to receive as an
additional fee, its proportionate share of Project Savings, subject to the
conditions and limitations set forth in PARAGRAPH 5.3 hereof.
6.2 For changes in the Work (hereinafter referred to as "CHANGES IN WORK")
pursuant to an approved Change Order, the Contractor's Fee shall be adjusted as
follows:
6.2.1 For all Changes in Work, if any, which result in additional cost to
Contractor, the value of the change shall be computed at Contractor's actual
cost, as defined in ARTICLE 8, plus ten percent (10%) (comprised of six percent
(6%) of such actual cost of Field General Conditions and four percent (4%) of
such actual cost for Contractor's fee); provided, however, that for any Changes
in the Work based upon application of any of the Project Contingency Fund or
allowance in the GMP, the total fee for the Cost of Work related to application
of such Project Contingency Fund or allowance shall be limited to 4%.
6.2.2 For Changes in the Work which result in a decrease in the Cost of Work
(including, without limitation, decreases in the Cost of Work on account of
Direct Purchase Items purchased by Owner), no reduction will be made for the
Contractor's Fee.
ARTICLE 7
CHANGES IN WORK
7.1 Owner may make Changes in Work as provided in the Contract Documents.
Contractor shall be reimbursed for Changes in Work on the basis of Cost of Work,
as defined in ARTICLE 8, plus a ▇▇▇▇-up for Field General Conditions and the
Contractor's fee, as provided for in PARAGRAPH 6.2.1 above.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 14
7.1.1 CHANGE ORDERS. In the event Owner desires to effect any Change Order
during construction, whether the same would engender an increase or decrease in
the Contract Sum, Contractor shall not be required to do and perform, or
provide, any additional work, services, and materials pursuant to any Change
Order, or to delete any of the same from the Work, until Owner has actually
executed each Change Order and if applicable, the same has become effective, as
provided below. Contractor shall include with all proposed Change Orders an
explanation of (a) the time period within which it requires a decision from
Owner on the Change Order, and (b) the anticipated impacts that will result from
a failure of the Owner and Architect to act on a timely basis with respect to a
Change Order requested by Contractor. Owner, Architect and Contractor shall act
promptly and diligently in their decision making process with respect to all
Change Order requests, provided, however, that Contractor acknowledges that any
Change Order which constitutes a "Material
Construction Contract Amendment" by
reason of the criteria set forth in Section 5.2 of the Disbursement Agreement
being applicable to such a Change Order will not be effective unless and until
the requirements set forth in Section 5.2 of the Disbursement Agreement are
satisfied. Contractor agrees to satisfy any and all requirements within its
control with respect to any Change Order which constitutes a "Material
Construction Contract Amendment" under the terms of the Disbursement Agreement.
Whenever, from time to time, the net effect of all Change Orders engenders an
increase in the Contract Sum, Contractor shall have the right to require
evidence of funds for payment, or such other assurance as Contractor deems
satisfactory to it, in its reasonable discretion. Contractor agrees, however,
that it shall not unreasonably refuse to accept written advice from Owner
certifying that previously non-allocated loan proceeds or amounts from the
Project Contingency Fund will be made available to cover said Change Order.
For all Change Orders, the Contractor shall obtain all necessary amendments in
the Bond, so as to extend the coverage of the Bonds to the Change Order Work,
unless the terms of the Bond provide that such Change Orders are automatically
covered by the Bond (up to the penal sum of the Bond), without further action of
the parties.
Notwithstanding anything in this PARAGRAPH 7.1.1 to the contrary, Contractor
shall be required to do and perform, or provide, any additional work, services,
and materials pursuant to any Construction Change Directive issued by Owner,
without any further approvals, subject only to provisions above regarding
satisfactory proof as to funding for same. The term "CONSTRUCTION CHANGE
DIRECTIVE", as used herein, shall have the meaning set forth in SECTION 7.3.1 of
the General Conditions attached hereto as EXHIBIT "A". Contractor agrees to
satisfy any and all requirements within its control, and Owner agrees to satisfy
and cause the Architect and the Independent Construction Consultant to satisfy
any and all requirements within its and their respective control with respect to
any Construction Change Directive which constitutes a "Material
Construction
Contract Amendment" under the terms of the Disbursement Agreement.
7.2 Contractor agrees that Change Orders, in order to be effective
hereunder, shall be required to be (a) signed on behalf of Owner by Owner's
Project Representative, (b) signed on behalf of Contractor, either by
Contractor's Project Representative or Contractor's Vice President of
Operations, (c) if and to the extent required under the terms of the
Disbursement Agreement, signed on behalf of the Independent Construction
Consultant (Professional Associated Construction Services, Inc.), or any
successor Independent Construction Consultant appointed
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 15
under the terms of the Disbursement Agreement, indicating the Independent
Construction Consultant's approval thereof, and (d) signed on behalf of
Architect, indicating the Architect's approval thereof.
7.3 Contractor's Fee for Changes in the Work shall be set forth in
ARTICLE 6.
ARTICLE 8
COSTS TO BE REIMBURSED
8.1 The term "COST OF WORK" shall mean costs necessarily incurred by
Contractor, in good faith and in the proper performance of the Work, and paid or
payable by Contractor. Such costs shall be at rates not higher than the standard
paid in the locality of the Work, except with prior consent of Owner, and shall
include the items set forth below in this ARTICLE 8. The cost of all Direct
Purchase Items (together with taxes associated with Direct Purchase Items) shall
be excluded from the Cost of Work. The cost for all of the items described in
this Article 8 shall be subject to and included within the GMP.
8.1.1 Wages paid for labor in the direct employ of Contractor in the
performance of the Work under applicable collective bargaining agreements, or
under a salary or wage schedule agreed upon by Owner and Contractor, including
such welfare or other benefits, as may be payable with respect thereto.
8.1.2 Salaries of Contractor's personnel when stationed at the field office,
in whatever capacity employed; personnel engaged, at shops or on the road, in
expediting the production or transportation of materials or equipment, but only
for that portion of their time required for the Work; and personnel in the main
or branch offices of Contractor who perform activities directly related to the
Project, including Contractor's project management staff, scheduling management,
estimators, pre-construction staff, and safety engineer at the home office when
engaged in performance of the Work under this Contract, and usual vacation pay,
incentive bonuses and profit sharing made by Contractor to its superintendents,
foremen and managers on the Project, provided said incentive bonuses are
pre-approved by the Owner and no such bonus or profit sharing shall exceed 30%
of the employee's base wages with all such sums being included within the GMP.
8.1.3 Cost of contributions, assessments or taxes incurred during the
performance of the Work for such items as unemployment compensation and social
security, insofar as such cost is based on wages, salaries or other remuneration
paid to employees of Contractor and included in the Cost of Work under
PARAGRAPHS 8.1.1 and 8.1.2 at the rate of 49.5% of said wages for work performed
over land and the rate of 58.5% of said wages for work performed over water.
8.1.4 The portion of reasonable lodging, travel, and subsistence expenses of
Contractor or its officers or employees incurred while traveling outside the
State of
Mississippi in discharge of duties connected with the Work with all
such sums being included within the GMP, provided, however, that lodging, travel
and subsistence expenses of Contractor shall not exceed the sum of $60,000.00 in
the aggregate, except with the written consent of the Owner, which consent shall
not be unreasonably withheld.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 16
8.1.5 The normal cost of vehicles and fuel and repairs for vehicles assigned
to employees associated with the Project with all such sums being included
within the GMP.
8.1.6 Cost of all materials, supplies, and equipment incorporated in the Work,
including costs of transportation thereof.
8.1.7 Payments made by Contractor to subcontractors for Work performed
pursuant to subcontracts under this Agreement.
8.1.8 Costs, including transportation and maintenance, of all materials,
supplies, equipment, temporary facilities and hand tools not owned by the
workers, which are consumed in the performance of the Work. Any such items used
but not consumed, which are paid for by the Owner, shall become the property of
the Owner and shall be delivered to the Owner upon completion of the Work in
accordance with instructions furnished by the Owner. If the Owner elects,
however, the Contractor shall purchase any such items from the Owner at a
purchase price equal to the original cost charged to the Owner, less the
reduction in fair market value resulting directly from use of any such item in
connection with the Work or such other price which is mutually acceptable to the
Owner and the Contractor. Upon demand by the Owner, the Contractor shall furnish
the Owner with any information and documentation necessary to verify the period
of time for which such items were used in connection with the Work.
8.1.9 Rental charges including personal property taxes of all necessary
machinery and equipment, including office equipment, exclusive of hand tools,
used at the site of the Work, whether rented from Contractor or others,
including installation, minor repairs and replacements, dismantling, removal,
transportation, and delivery costs thereof. Rates for equipment rented from
Contractor shall be at rental rates as listed on EXHIBIT "K" attached hereto and
made a part hereof. Rates for equipment rented from Contractor that are not
listed on EXHIBIT "K" shall be at rates subject to the Owner's prior written
approval.
8.1.10 Cost of premiums for all bonds and insurance will be a reimbursable cost
at a fixed rate of 1.09% of the final Contract amount for the Contractor's
insurance and associated costs pertaining to the Project; a fixed rate of 0.75%
of the final Contract amount for the Contractor's Bond; and a fixed rate of
1.25% of the total subcontract and purchase order amounts for payment and
performance bonds on all subcontractors and suppliers, which Contractor is
required by the Contract Documents to purchase and maintain and/or Contractor
requires, including cost of Performance & Payment Bonds for subcontractors
and/or suppliers. The phrase "final Contract amount" as used herein shall mean
the aggregate of (i) the Cost of Work to the Owner for completion of all of the
Work (including, without limitation, all Work reflected in the Schedule of
Values attached hereto and made a part hereof as EXHIBIT "F"), (ii) the
Contractor's Fee for completion of all such Work, and (iii) the cost of all
Direct Purchase Items (as defined in SECTION 3.6.1 of the General Conditions and
in EXHIBIT "M" attached hereto) purchased by Owner.
8.1.11 Sales, use, gross receipts, or similar taxes related to the Work and for
which Contractor is liable, imposed by any governmental authority, excluding
income and franchise taxes.
8.1.12 Permit fees, licenses and deposits lost for causes other than
Contractor's negligence.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 17
8.1.13 Losses and expenses not compensated by insurance or otherwise, sustained
by Contractor in connection with the Work, provided, however, that such losses
and expenses resulting or arising from the negligence or willful or wanton
misconduct of Contractor, any subcontractor, anyone directly or indirectly
employed by any of them, or for whose acts any of them may be responsible, shall
not be included as a Cost of Work, but shall be borne solely by Contractor
without reimbursement by Owner. Such losses shall include deductibles on any
insurance loss settlements made with the written consent and approval of Owner.
Reimbursable losses and expenses not compensated by insurance or otherwise, as
indicated above, shall be considered part of the Cost of Work for the purpose of
determining the guaranteed maximum cost to the Owner pursuant to PARAGRAPH 5.2
of this Agreement. If, however, such loss required reconstruction, and
Contractor is placed in charge thereof, it shall be paid for this service a fee
proportionate to that stated in PARAGRAPH 6.1.1.
8.1.14 The cost, in connection with the performance of the Work, of long
distance calls, telephone service at the site, expressage, postage, photographs,
blueprints, office supplies, first aid supplies, ice, water, cups, furniture,
fixtures, office equipment including jobsite computers and software and similar
miscellaneous cost items in connection with the Work.
8.1.15 Cost of removal of all debris.
8.1.16 Costs incurred due to an emergency affecting the safety of persons and
property, to the extent not caused by the negligent acts or omissions, or
capable of prevention through the proper performance of the Work, by Contractor,
a subcontractor or anyone for whom either is responsible.
8.1.17 Cost of labor, material and equipment required for handling, storing,
and placing and affixing Owner-furnished material and equipment.
8.1.18 Cost of small tools.
8.1.19 Costs for maintenance, adjustments and systems balancing associated with
the Work required during the warranty period which may be the responsibility of
Contractor, will be at a fixed rate of 0.17% of the established GMP, with such
sum being included within the GMP.
8.1.20 Demobilization, restocking, and cancellation costs associated with early
termination of the Work, unless such early termination is due to a default by
Contractor.
8.1.21 Any cost not specifically and expressly excluded by ARTICLE 9 which the
Contractor reasonably and necessarily incurs in the performance of the Work or
in the furtherance of the Project, with such sums being included within the GMP,
provided, however, that any such cost in excess of $10,000 per item shall not be
included as a Cost of Work, unless such cost is approved in writing in advance
by the Owner, which approval shall not be unreasonably withheld.
8.1.22 Cost to administer the
Mississippi Tax Related Procedures set forth in
EXHIBIT "M" attached hereto on behalf of the Owner, including portions of the
salaries for personnel engaged in the administration of the procedures,
provided, however that the cost to administer such procedures on behalf of Owner
for the Project will not exceed the aggregate cost of $80,000.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 18
8.1.23 Cost associated with the Preconstruction Phase plus four percent (4%)
fee shall be paid to Contractor if the Project is abandoned by Owner prior to
commencement of the Work. After commencement of the Work, the cost associated
with the Preconstruction Phase, including but not limited to estimating
services, design assist services, contract preparation, shall be included within
the Schedule of Values subject to the GMP. An description of the types of costs
associated with the Preconstruction Phase are set forth in EXHIBIT "L" attached
hereto.
8.2 Basis of Cost
8.2.1 Costs as defined herein shall be actual costs paid by the Contractor,
less all discounts, rebates and salvages which shall be taken by the Contractor,
subject to ARTICLE 10 of this Agreement. All payments made by the Owner pursuant
to this PARAGRAPH 8.2.1, whether those payments are actually made before or
after the execution of the Contract, and all payments made by Owner on account
of Direct Purchase Items, are subject to and included within the GMP specified
in PARAGRAPH 5.2 above; provided, however, that in no event shall the Owner be
required to reimburse the Contractor for any portion of the Cost of Work
incurred prior to the date of commencement except for those costs specified in
PARAGRAPH 8.1.23, unless the Contractor has received the Owner's written consent
prior to incurring such cost.
8.2.2 Notwithstanding the breakdown or categorization of any costs to be
reimbursed in this ARTICLE 8 or elsewhere in the Contract Documents, there shall
be no duplication of payment in the event any particular items for which payment
is required can be characterized as falling into more than one of the types of
compensable or reimbursable categories.
ARTICLE 9
COSTS NOT TO BE REIMBURSED
9.1 The term "COST OF WORK" shall not include any of the items set forth
below in this ARTICLE 9.
9.1.1 Salaries or other compensation of Contractor's personnel at Contractor's
principal office and branch offices, other than the field office, except as
specifically provided in ARTICLE 8;
9.1.2 Expenses of Contractor's principal and branch offices, other than the
field office, except as specifically provided in ARTICLE 8;
9.1.3 Any part of Contractor's capital expenses, including interest on
Contractor's capital, employed for the Work;
9.1.4 Home office overhead or general expenses of any kind, except as may be
expressly included in ARTICLE 6.2 and ARTICLE 8;
9.1.5 Costs due to the negligence or misconduct of, or failure to comply with
the requirements of the Contract Documents by, Contractor, any subcontractor,
anyone directly or indirectly employed by any of them, or for whose acts any of
them may be liable, including, but not limited to, the correction of defective
or nonconforming Work, disposal of materials and equipment wrongly supplied, or
making good any damage to Property;
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 19
9.1.6 Any cost not specifically and expressly included in the items described
in ARTICLE 8;
9.1.7 Costs in excess of the GMP, if any, as set forth in ARTICLE 5 and
adjusted pursuant to ARTICLE 8;
9.1.8 Legal fees and arbitration costs and fees incurred by the Contractor in
connection with the Project or any mediation, arbitration or lawsuit relating to
the Project.
9.1.9 Royalties, damages for infringement of patents and costs of defending
suits therefore.
9.1.10 Cost of data processing services, Information Technology support and
contract administration.
9.1.11 Legal Fees and other consultative fees reasonably and properly resulting
under this Agreement or as a result of nonperformance and/or default of
subcontractors or venders.
9.1.12 Costs of arbitration, mediation and/or attorneys' fees incurred in
connection with the administration of the Contract Documents.
9.1.13 Costs of repairing, maintaining, replacing or correcting damaged or
non-conforming Work.
9.1.14 Costs associated with archiving of records.
9.1.15 Costs of all Direct Purchase Items purchased by Owner.
ARTICLE 10
DISCOUNTS, REBATES AND REFUNDS
10.1 All cash discounts shall accrue to Contractor, unless Owner deposits
funds with Contractor with which to make payments, in which case, the cash
discounts shall accrue to Owner. All trade discounts, rebates and refunds, and
all returns from sale of surplus materials and equipment shall accrue to Owner,
and Contractor shall make provisions so that they can be secured.
ARTICLE 11
SUBCONTRACTS
11.1 The Contractor shall keep Owner informed as to those with whom
Contractor plans to subcontract, including, but not limited to, all material
terms of any proposed Subcontract. Prior to award of the Subcontract, Contractor
shall furnish in writing to Owner the names of persons or entities (including
those who are to furnish materials or equipment fabricated to a special design)
proposed for each principal portion of the Work. Owner shall promptly reply to
Contractor, in writing, stating whether or not Owner, after due investigation,
has reasonable objection to any such proposed subcontractor or subcontract.
Failure of Owner to reply within fourteen (14) calendar days of submittal by
Contractor shall constitute "notice of no reasonable objection."
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 20
11.2 Contractor shall not contract with a proposed person or entity to whom
Owner has made reasonable and timely objection. Contractor shall not be required
to contract with anyone to whom Contractor has made reasonable objection. If
Owner has reasonable objection to a person or entity proposed by Contractor,
Contractor shall propose another to whom Owner has no reasonable objection. The
Contract Sum shall be increased or decreased by the difference in cost
occasioned by such change, and an appropriate Change Order shall be issued;
however, no increase in the Contract Sum shall be allowed for such change unless
Contractor has acted promptly and responsively in submitting names as required.
11.3 Contractor shall not award any subcontract with a contract price of
greater than or equal to Fifty Thousand Dollars ($50,000) ("MAJOR SUBCONTRACT")
without first obtaining the written approval of Owner, which approval shall not
be unreasonably withheld.
11.4 Except for the Barge
Construction Contract (as hereinafter defined),
subcontracts or other agreements shall conform to the applicable payment
provisions of this Agreement. Subcontracts and other agreements shall not be
awarded on the basis of cost plus a fee without the prior written consent of the
Owner.
11.5 Except for the Barge
Construction Contract, all Subcontracts for the
Project shall contain the same indemnification, retainage, and release of liens
provisions as required of the Contractor hereunder, unless (i) otherwise stated
in this Agreement or in the General Conditions; (ii) specifically waived in
writing by the Owner; or (iii) the Subcontracts has a contract price less than
$50,000, where it would be unreasonable to require such provisions due to the
scope of the Subcontract. All Subcontracts under this Agreement shall provide
insurance satisfactory to the Contractor. All Subcontracts shall require
insurance in at least the amounts as set out in Contractor's standard form of
Subcontract, unless Owner consents in writing to different insurance coverages,
which consent shall not be unreasonably withheld.
11.6 Contractor represents and warrants to Owner that Contractor is qualified
to self-perform certain concrete work and installation of doors, hardware and
toilet accessories. In the event Contractor desires to perform with its own
forces a definable task or Scope of Work which is also appropriate for
performance by Subcontractors and for which it is reasonable to solicit bids,
then Contractor shall seek bids from Subcontractors, unless the task or Scope of
Work has an estimated cost under $50,000 or unless Owner otherwise consents to a
waiver of the bidding requirement on a case-by-case basis, which consent shall
not be unreasonably withheld. Notwithstanding anything to the contrary herein,
if (a) Contractor submits the low bid in competition with other Subcontractors
to perform a definable task or Scope of Work for which Contractor is qualified
to self-perform, or (b) Contractor's bid is not the lowest, but Owner, in its
sole discretion, decides to approve Contractor's self-performance of the task or
scope of Work, then Contractor shall be entitled to perform the task or Work
with Contractor's own forces on the same basis (e.g. lump sum) on which bids
were solicited. In all cases in which Contractor performs tasks or Work after
competition with Subcontractors, Contractor's Cost of Work for such tasks or
Work shall be the basis of compensation specified in the Subcontract. By way of
illustration, if the Subcontract is for a fixed price, Contractor's Cost of Work
for the Subcontract shall be the fixed price amount of the Subcontract.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 21
11.7 Additional retainage beyond that held by the Owner from the Contractor's
Applications for Payment may be withheld by the Contractor, upon Owner's
consent, from payments owed by the Contractor to any Subcontractor or supplier
for no more than one Application for Payment unless the Contractor, at the time
the additional retainage is withheld, provides a written explanation to the
Owner. The Contractor shall not withhold without Owner's written consent more in
total in retainage for all of its Subcontractors and suppliers than the Owner is
holding in retainage for the Contractor, provided, however, for any individual
Subcontractor, the Contractor may hold up to a maximum of ten percent (10%) in
retainage.
11.8 Contractor acknowledges that the Disbursement Agent shall have the
right, but not the obligation, at reasonable times during customary business
hours and at reasonable intervals upon prior notice to review, all information
(including any direct contracts and purchase orders entered into by Owner)
supporting any Application for Payment. The Disbursement Agent shall be entitled
to examine, copy and make extracts of the books, records, accounting data and
other documents of the Contractor relating to construction of the Project,
including, without limitation, bills of sale, statements, receipts, contracts or
agreements, which relate to any materials, fixtures or articles incorporated
into the Project. The Contractor agrees to cooperate with the Disbursement Agent
in assisting the Disbursement Agent to perform its duties hereunder and to take
such further steps as the Disbursement reasonably may request in order to
facilitate the Disbursement Agent's performance of its obligations hereunder.
11.9 Contractor acknowledges that the Independent Construction Consultant
shall have the right to meet periodically at reasonable times during customary
business hours and at reasonable intervals, however no less frequently than
monthly, with representatives of the Owner, Contractor, the Architect and such
other employees, consultants or agents as the Independent Construction
Consultant shall reasonably request to be present for such meetings. The
Independent Construction Consultant may perform such inspections of the Project
Site and the Project as it deems reasonably necessary or appropriate in the
performance of its duties hereunder, however no less frequently than monthly. In
addition, the Independent Construction Consultant shall have the right at
reasonable times during customary business hours upon prior notice to review, to
the extent it deems reasonably necessary, all information (including any direct
contracts and purchase orders entered into by Owner) supporting the amendments
to the Project Budget, amendments this Agreement, any of the Contract Documents,
any Subcontracts and any direct contracts entered into by Owner, any
Applications for Payment and any certificates in support of any of the
foregoing, to inspect materials stored on the Project Site and the Project, at
off-site facilities where materials designated for use in the Project are
stored, to review the insurance required pursuant to the terms of the Indenture,
and to examine the Plans and all shop drawings relating to the Project. The
Independent Construction Consultant is authorized to contact any subcontractor
or payee for purposes of confirming receipt of progress payments. Contractor
acknowledges and agrees that the Independent Construction Consultant shall be
entitled to examine, copy and make extracts of the books, records, accounting
data and other documents of the Contractor relating to the construction of the
Project, including, without limitation, bills of sale, statements, receipts,
lien releases and affidavits, contracts or agreements, which relate to any
materials, fixtures or articles incorporated into the Project. From time to
time, at the request of the Independent Construction Consultant, the Contractor
shall make available to the Independent Construction Consultant a Project cost
schedule and/or the Project Schedule for the Project. The Contractor agrees to
cooperate with the Independent Construction
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 22
Consultant in assisting the Independent Construction Consultant to perform its
duties hereunder and to take such further steps as the Independent Construction
Consultant reasonably may request in order to facilitate the Independent
Construction Consultant's performance of its obligations hereunder.
11.10 Upon request by Owner and/or Independent Construction Consultant, the
Contractor shall provide to Owner and/or Independent Construction Consultant
copies of requests for bids, bid proposals, and/or bid documents submitted by
proposed subcontractors. In addition, Contractor shall provide to the
Independent Construction Consultant true, correct and complete copies of each
and every executed Major Subcontract and all direct contracts and purchase
orders entered into by Owner and invoices for Direct Purchase Items.
11.11 Owner approves of the form of Subcontract attached hereto as EXHIBIT "N"
(the "BARGE
CONSTRUCTION CONTRACT") to be entered into between Contractor and
Corn Island Shipyard, Inc. (the "BARGE CONTRACTOR") to fabricate the vessels
upon which the casino will be built. Provided that the Barge
Construction
Contract entered into between Contractor and Barge Contractor is substantially
the same as the form of Barge
Construction Contract attached hereto as EXHIBIT
"N", Owner agrees (i) that the terms and conditions set forth in the Barge
Construction Contract satisfy all requirements of this Contract; (ii) that
payments for the work to be performed under the terms of the Barge Construction
Contract shall be made in accordance with the terms and subject to the
conditions set forth in the Barge Construction Contract, notwithstanding
anything to the contrary contained in this Contract; (iii) that the Barge
Contractor shall not be required to provide a consent to assignment in favor of
the Trustee; and (iv) to waive any requirements set forth herein and in any of
the other Contract Documents that are inconsistent with the terms of the Barge
Construction Contract, including, without limitation, the requirements contained
in PARAGRAPH 11.5 hereof. Such waiver on account of the Barge Construction
Contract shall not be construed to be a general waiver of the requirements set
forth in this Agreement and any of the other Contract Documents with respect to
any other subcontract
11.11.1. Owner acknowledges that Contractor has paid to the Barge Contractor a
refundable deposit in the amount of $169,580.50 (the "DEPOSIT"). The terms of
the Barge Construction Contract provide that in the event the Project Financing
has not closed and Owner has not given to Contractor a notice to proceed under
this Contract, and Contractor has not given a notice to proceed to Barge
Contractor under the Barge Construction Contract on or before February 2, 2004,
then either Contractor or Barge Contractor have the right to terminate the Barge
Construction Contract at any time after February 2, 2004, by giving written
notice of termination to the other party, in which event, Barge Contractor is
obligated to return to Contractor the Deposit. In the event Owner has obtained
the Project Financing and issued to Contractor a Notice to Proceed on or before
February 2, 2004, Contractor promptly shall give to Barge Contractor a notice to
proceed under the Barge Construction Contract. In the event Owner has not
obtained the Project Financing and issued to Contractor a Notice to Proceed on
or before February 2, 2004, the date for Substantial Completion set forth in
PARAGRAPH 4.2 and the Guaranteed Maximum Price set forth in PARAGRAPH 5.2 shall
be subject to adjustment for proven impacts upon the Project Schedule and the
Guaranteed Maximum Price, respectively. In the event (i) Owner has not obtained
the Project Financing and issued to Contractor a Notice to Proceed on or before
February 2, 2004, or (ii) Owner elects to abandon the Project on or before
February 2, 2004, and as a result of either of the events described in clause
(i) or (ii), Barge
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 23
Contractor refuses to refund all or any portion of the Deposit, provided that
Contractor has not by its acts or omissions prejudiced Owner's ability to obtain
a refund of the Deposit, Owner agrees to reimburse Contractor for such Deposit
or portion thereof retained by Barge Contractor, further provided, that (i)
Contractor assigns to Owner all of Contractor's right, title and interest in and
to the Deposit; and (ii) Contractor agrees to cooperate with Owner's efforts to
secure a refund of the Deposit, including, without limitation, the institution
and prosecution of legal proceedings relating thereto.
ARTICLE 12
PRELIMINARY AND FINAL ACCOUNTING
12.1 Prior to final accounting, and as a condition thereto, Contractor shall
furnish Owner with a preliminary account for Cost of Work and Contractor's Fee,
which preliminary accounting shall be in a reasonably detailed form, as
determined by Owner. The final payment shall be made based upon the preliminary
accounting. If, at the time of final payment, based on the preliminary
accounting, there exists an identifiable dispute between Owner and Contractor
with respect to a particular item or items, then final payment shall still be
made by Owner, but the amounts in dispute will be paid to an escrow agent
satisfactory to Owner and Contractor and shall be held pending appropriate
resolution of such dispute, which the Parties will endeavor to resolve prior to
the review next provided. Thirty (30) days after final payment, or sooner when
the same is completed, Contractor shall represent its final accounting to Owner
in complete detailed form accounting for all Costs of Work and Contractor's Fee,
allowances, Project Savings, Change Orders, penalties and bonuses, if any. Owner
and its agents and attorneys may thereupon review and audit this final
accounting, and for such purpose, Owner, Disbursement Agent, Trustee and the
Independent Construction Consultant (and their respective agents and attorneys)
shall be given full access to the books and records of Contractor in any manner
relating to this Project, including all subcontracts, material purchase orders,
payrolls and the like, provided, however, that any audit of such books and
records of Contractor by such parties shall be conducted concurrently. This
review and audit shall be completed by Owner within a period of one hundred
eighty (180) days after it has received the final accounting from Contractor,
and Owner and Contractor shall, based upon the final accounting and Owner's
audit thereof, make such adjustments as may be necessary between them with
respect to all items, except any item which may then be in dispute between Owner
and Contractor, which said disputed items, if not resolved amicably, shall be
arbitrated or litigated between said Parties.
ARTICLE 13
PROGRESS PAYMENTS
13.1 Based upon monthly Applications for Payment submitted to Owner and
Architect by Contractor (except that payments on account of the Barge vessels
shall not be processed monthly, but shall be processed on separate Applications
for Payment on an expedited basis to conform to the payment schedule set forth
in the Barge Construction Contract), including all supporting documentation, and
Certificates for Payment properly issued by Architect, Owner shall make (i)
Progress Payments on account of the Contract Sum to Contractor, and (ii)
payments on account of the Direct Purchase Items to vendors, suppliers and
contractors, as
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 24
provided below and elsewhere in the Contract Documents. Contractor acknowledges
having received the Disbursement Agreement and is familiar with the terms and
conditions set forth therein. Contractor acknowledges that Owner shall not be
obligated to make any Progress Payments on Account of the Contract Sum
(including Direct Purchase Items) unless and until all conditions within the
control of Contractor to disbursement of funds set forth in the Disbursement
Agreement for progress payments are satisfied. Contractor agrees to timely
execute and deliver all certificates within the control of Contractor required
to be delivered by Contractor under the terms of the Disbursement Agreement, and
Contractor shall make all statements provided in such certificates, unless such
statements would be untrue or incorrect with respect to the facts then known to
Contractor at the time when such certificate is made. Contractor agrees to (i)
cooperate with and provide to Owner all documentation, data and information
requested by Owner within the control of Contractor, to allow Owner to satisfy
the requirements and conditions for Progress Payments set forth in the
Disbursement Agreement (including all documentation for Direct Purchase Items),
and (ii) complete all schedules to be included with each Progress Payment, where
information required for or contained in such schedules is within the control of
Contractor.
13.2 The period covered by each Application for Payment shall be one calendar
month ending on the last day of the month, except for payments on account of the
Barge vessels which shall be processed as set forth in SECTION 13.3 below.
13.3 Provided a proper and complete Application for Payment is received by
Architect and Owner not later than the last day of a month, and the Architect
and the Independent Construction Consultant has approved the same for payment,
Owner shall make payments to Contractor and, with respect to Direct Payment
Items, to vendors, suppliers and contractors, in each case not later than the
30th day of the following month, subject to satisfaction of the conditions to
payment set forth herein. Notwithstanding the foregoing, payments on account of
the barge vessels shall be processed on separate Applications for Payment on an
expedited basis to conform to the payment schedule set forth in the Barge
Construction Contract. If proper and complete Application for Payment is
received by Architect and Owner after the application date fixed above, and each
of the Architect and Independent Construction Consultant has approved the same
for payment, it is agreed that the time for payment shall be the next monthly
cycle, unless Owner is able to arrange for an interim payment to be made to
Contractor sooner than the next monthly cycle, at no additional cost, expense or
liability to Owner. Owner shall use diligent efforts to obtain approval of a
proper and complete Application for Payment by the Architect and the Independent
Construction Consultant. In the event Contractor timely submits to Owner and
Architect a proper and complete Application for Payment, the failure by Owner to
obtain the Architect's and the Independent Construction Consultant's approval
thereof shall not affect the right of Contractor to be paid or, with respect to
Direct Purchase Items, the right of vendors, suppliers and contractors to be
paid, pursuant to such timely, proper and complete Application for Payment,
unless the Owner's failure to obtain the Architect's and the Independent
Construction Consultant's approval thereof is attributable to matters within the
control of Contractor.
13.3.1 Each Application for Payment shall be based upon the most recent
approved Schedule of Values submitted by Contractor in accordance with the
Contract Documents. The Schedule of Values shall allocate the entire GMP among
the various portions of the Work, except that the Contractor's Fee shall be
shown as a single separate line item, also within the GMP. The
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 25
Schedule of Values shall be prepared in such form and supported by such data to
substantiate its accuracy as Architect, Owner and the Independent Construction
Consultant may reasonably require. The Schedule of Values, unless objected to by
Architect, shall be used as a basis for reviewing Contractor's Applications for
Payment.
13.3.2 The Contractor's entitlement to payment for each of its Payment
Applications is expressly conditioned upon the Contractor's submission of a
monthly update of the Project Schedule to the Owner, the Architect and the
Independent Construction Consultant with each of the Contractor's monthly
Applications for Payment, except for payments on account of the Barge vessels
which shall be processed as set forth in SECTION 13.3 above.
13.3.3 Applications for Payment shall show the Cost of Work, services, the cost
of Direct Purchase Items, and the cost of materials or equipment not
incorporated in the Work, but delivered and suitably stored at the Site or at
some location agreed upon, actually incurred by Contractor through the end of
the period covered by the Application for Payment and for which Contractor (or
Owner, in the case of Direct Purchase Items) has made or intends to make actual
payment prior to the next Application for Payment. Although Contractor shall
invoice on a percentage of completion basis according to an approved Schedule of
Values for the current billing period, Contractor shall also provide to Owner on
a monthly basis payrolls, ▇▇▇▇▇ cash accounts, receipted invoices, and any other
evidence reasonably required by the Owner or Architect for the previous billing
period. The Contractor may with Architect's and Owner's approval submit such
documentation in electronic format. Title to all such equipment and materials
shall pass to Owner upon payment therefore or incorporation in the Work,
whichever shall first occur; and Contractor shall prepare and execute all
documents necessary to effect and perfect such transfer of title. The
Application for Payment shall also indicate the sum of all prior payments,
Contractor's proportionate amount of fee in overall percentage of work completed
compared to the GMP and amount of retainage to be deducted from each Application
in accordance with PARAGRAPH 13.5 below. Except with the Owner's prior written
approval, the Contractor shall not make advance payments to suppliers for
materials or equipment which have not been delivered and stored at the site.
Owner approves the advance payment to be made to Barge Contractor pursuant to
the Barge Construction Contract, and agrees to make the initial payment required
under the terms of the Barge Construction Contract as one of the "Initial
Disbursements" (as defined in the Disbursement Agreement) in connection with
obtaining the Project Financing.
13.3.4 Contractor's Application for Payment shall include a written inventory,
substantially in the form required by the schedules to the Disbursement
Agreement, identify all materials, machinery, fixtures, furniture, equipment or
other items purchased or manufactured for incorporation into the Work but which,
at the time of the Application for Payment, (i) are not located at the Project
Site and for which the Contractor has requested payment, or (ii) are located at
the Project Site but are not expected to be incorporated into the Project
improvements within ninety (90) days after such Application for Payment (such
materials, the "UNINCORPORATED MATERIALS") and including the value thereof,
together with evidence reasonably satisfactory to Owner, the Independent
Construction Consultant and the Disbursement Agent that the following conditions
have been satisfied with respect to such Unincorporated Materials:
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 26
(a) all Unincorporated Materials for which full payment has
previously been made or is being made with the proceeds of the
Application for Payment are, or will be upon full payment, owned by the
Owner, as evidenced by the bills of sale, certificates of title or other
evidence reasonably satisfactory to Owner and the Independent
Construction Consultant, and all lien rights or claims of the supplier
has been or will be released simultaneously with such full payment and
all amounts, if any, required to be paid to the supplier thereof with
respect to the installation of such Unincorporated Materials (including
any Retainage Amounts) (provided, however, that lien releases,
affidavits and agreements need not be provided for Unincorporated
Materials from a single or affiliated suppliers (where the Owner or
Contractor has actual knowledge that such suppliers are affiliated) with
a contract price (or expected aggregate amount to be paid in the case of
"cost plus" contracts) of less than $100,000;
(b) the Contractor believes that the Unincorporated Materials are
consistent with the Final Plans;
(c) all Unincorporated Materials are properly inventoried,
securely stored, protected against theft and damage at the Project Site
or at such other location which has been specifically identified by its
complete address to Owner, the Independent Construction Consultant and
the Disbursement Agent (or if the Contractor cannot provide the complete
address of the current storage location, the Contractor shall list the
name and complete address of the applicable contracting party supplying
or manufacturing such Unincorporated Materials);
(d) the amounts paid by the Owner in respect of Unincorporated
Materials not at the Project Site (other than those related to the Barge
Construction Contract) are not more than $2,000,000 at any one time;
(e) the amounts paid by the Owner in respect of Unincorporated
Materials not at the Project Site and related to the Barge Construction
Contract are not more than $9,000,000 at any one time;
(f) the Independent Construction Consultant shall have confirmed
the accuracy of the certification required in subparagraph (c) above,
and in connection therewith, the Independent Construction Consultant
shall have the right to visit the site of and inspect the Unincorporated
Materials; and
(g) the Independent Construction Consultant, at the request of the
Owner, may from time to time agree to increase the thresholds set forth
in subparagraph (d) and (e) above.
13.3.5 Applications for Payment shall show the approved percentage of completion
of each portion of the Work as of the end of the period covered by the
Application for Payment. The percentage of completion shall be the lesser of (1)
the percentage of that portion of the Work which has actually been completed; or
(2) the percentage obtained by dividing (a) the expense that has actually been
incurred by the Contractor on account of that portion of the Work for which the
Contractor has made or intends to make actual payment prior to the next
Application
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 27
for Payment by (b) the share of the Guaranteed Maximum Price allocated to that
portion of the Work in the Schedule of Values. Applications for Payment for the
Barge Construction Contract shall show the stage of completion of the barge
vessels corresponding to the schedule of payments set forth in the Barge
Construction Contract in lieu of the percentage of completion.
13.4 Except with respect to the Barge Construction Contract, the Owner will
retain an amount on all Work as referenced in PARAGRAPH 13.3 equal to a
percentage of the amount due the Contractor on account of progress payments as
follows: on the items for General Conditions, Contractor's Fee and Work
performed by Contractor the retainage shall be equal to five percent (5%). For
all other Work the retainage shall initially be equal to ten percent (10%).
Whenever the Work is fifty-percent (50%) complete and performed in accordance
with the Project Schedule then in effect and satisfactory, in the opinion of the
Architect with concurrence of the Owner, fifty-percent (50%) of the retainage
will be paid to the Contractor, and five-percent (5%) on all subsequent progress
payments shall be retained thereafter. Upon mutual written agreement by Owner,
and Contractor, payment in full may be made to those subcontractors whose work
is fully completed during the early stages of the Project or reduced with
respect to other contractors at such times as Owner and Contractor may mutually
agree, provided, however, that Owner shall not be obligated to release any
retainage to Contractor or to any subcontractors sooner than provided in this
PARAGRAPH 13.4. There shall be no retainage for the Barge Construction Contract.
Retainage under subcontracts shall be included in Contractor's Request for
Payment for the purpose of indicating the value of the Work performed; however,
Contractor shall not request payment thereof from Owner until such retainage is
actually payable.
13.5 In each Request for Payment, Contractor shall certify that such Request
for Payment represents the amount to which Contractor is entitled pursuant to
the terms of this Agreement and shall also certify as follows:
"There are no known mechanic's or materialmen's liens
outstanding at the date of this requisition, that all due and
payable bills with respect to the Work have been paid to date
or are included in the amount requested in the current
Application, and that, except for such bills not paid but so
included, there is no known basis for the filing of any
mechanic's or materialmen's liens on the Work, except to the
extent as may be otherwise shown below."
To the extent that the Contractor cannot make such certification, Contractor
shall state with reasonable specificity the reasons why such certification
cannot be made and/or must be qualified or limited.
13.5.1 Contractor specifically agrees that it shall not include in any Request
for Payment sums attributable to Work which Owner or Contractor have rejected
(unless Contractor disputes in good faith such rejection) or which otherwise
constitute or relate to applications for payments, ▇▇▇▇▇▇▇▇, or invoices or
subcontractors or suppliers which Contractor disputes, or for any other reason,
does not intend to pay.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 28
13.5.2 Owner shall review each such Request for Payment and may make such
exceptions as Owner reasonably deems necessary or appropriate under the state of
circumstances then obtaining.
13.6 The Contractor acknowledges and agrees that the Owner may reserve the
right, under the Project Financing documents, at the direction of Disbursement
Agent or Trustee, to make payment on any Application for Payment to the
Contractor or directly to any Subcontractor. Contractor acknowledges that Owner
shall make payments directly to any vendor, supplier or contractor with whom
Owner has contracted for Direct Purchase Items.
13.7 Contractor acknowledges that all payments on account of Applications for
Payment submitted by Contractor shall be subject to satisfaction of the
following conditions and requirements, but only to the extent such conditions
and requirements are within the control of Contractor. Contractor shall take all
action within the control of Contract to satisfy the conditions and requirements
set forth in subparagraphs (a) through (d) below:
(a) a title bringdown is received by the Owner indicating that no
mechanics liens have been filed against the Project by (i) RAC; (ii) any
parties claiming by, through or under RAC; or (iii) any parties
contracting directly with the Owner for Direct Purchase Items (except to
the extent any such mechanics liens have been filed by any such parties
on account of the Owner's failure to make payments that are due and
payable);
(b) all executed Releases of Mechanics' Liens from the Contractor
(substantially in the form required by the Disbursement Agreement) and
from any vendor, supplier, contractor or subcontractor providing labor
or materials and who is legally entitled to assert a lien against all or
any portion of the Project under the laws of the State of
Mississippi
(except to the extent any such releases of mechanics' liens are not
delivered on account of the Owner's failure to make payments that are
due and payable);
(c) a written certification has been executed and delivered by the
Contractor to the Owner that:
(i) the construction of the Work to date has been performed
in a good and workmanlike manner and in accordance with the Plans,
and stating whether progress thereof is such that the work will be
completed by the Substantial Completion Date;
(ii) the amount of direct costs for which such payment is
requested either has been paid by the Contractor or is justly due to
the Contractor for work, labor or material furnished for the
construction of the Work insofar as actually reported therein (or
stored on the Project site as approved by the Owner and the
Independent Construction Consultant) up to the date of such
Application for Payment (for the first Application for Payment) or
up to the date of such Application for Payment from the date of
previous Application for Payment;
(iii) no part of the Project Costs described in such
Application as being currently due for payment has been made the
basis for any previous payment;
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 29
(iv) a certification listing all of the Subcontractors and
Suppliers providing labor or materials for Work described under the
Application for Payment; and
(d) a written certificate from the Contractor has been provided to
Owner, Disbursement Agent and Trustee in the form specified by, and
meeting the requirements of the Disbursement Agreement.
13.8 Nothing in this Agreement or in any of the other Contract Documents is
intended to or may be construed to waive, abridge, or adversely affect
Contractor's right to make Contractor's actual receipt of payment from Owner a
condition precedent to Contractor's payment (whether progress, final, or any
other payment) to Subcontractors, suppliers, or other vendors. If Contractor or
its Subcontractors, supplies or other vendors are required to submit affidavits
of payment, waivers of rights, releases of claims, or the like, such affidavits
of payment, waivers of rights and releases of claims may be conditioned upon
receipt of payment.
13.9 Owner shall not be in default hereunder due to a delay in the processing
of an Application for Payment caused by the Disbursement Agent, the Trustee
and/or the Independent Construction Consultant and beyond the control of the
Owner; provided however, that, if Owner does not pay by the due date the full
amount of the Contractor's Application for Payment as certified (or failed to be
certified) by the Architect and the Independent Construction Consultant, or if
either Owner or Contractor disagrees with the amount certified (or failed to be
certified) by the Architect or the Independent Construction Consultant, then
Owner and Contractor shall endeavor in good faith to resolve their differences
over the amount due for the Application for Payment. In the event there is a
bona fide dispute as to the amount owed and Contractor is otherwise paid the
undisputed amount, then (i) Owner shall have the option of paying to Contractor,
under protest and with reservation of all rights, an amount equal to one-half of
the disputed amount and to place the other one-half of the disputed amount in an
escrow account administrated by a mutually acceptable escrow agent, (ii)
Contractor shall be obligated to continue or resume the Work, and (iii) the
Owner reserves the right to seek reimbursement of the disputed amount paid under
protest. In the event of a dispute over the amount owed by Owner to Contractor
for one or more Applications for Payment (whether placed in escrow or
otherwise), either party may initiate arbitration under the Construction
Industry Arbitration Rules of the American Arbitration Association. If the
Arbitrator determines that one party owes additional payment or reimbursement to
the other party, such additional payment or reimbursement will be paid within
thirty (30) days after notification of the Arbitrator's decision. Contractor
acknowledges that the procedure set forth in clause (i) above for payment under
protest and with reservation of Owner's rights is provided for under the Advance
Construction Disbursement process in the Disbursement Agreement and may be
limited to the extent of the "Available Advance Construction Disbursement
Amount" (as defined in the Disbursement Agreement).
13.10 In the event Contractor submits a timely, proper and complete
Application for Payment, and Owner fails to cause such Application for Payment
to be paid (including, without limitation, any payments by Owner to vendors,
suppliers or contractors on account of Direct Payment Items included in such
Application for Payment) within thirty (30) days of submittal (the thirtieth day
following submittal of such an Application for Payment shall hereafter be
referred to as a "DUE DATE"), there shall be deemed to be a "Payment Dispute",
unless on a Due Date the Architect, the
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 30
Independent Construction Consultant and/or the Owner have good cause for such
failure to certify an otherwise timely, proper and complete Application for
Payment. The failure or inability of any party to satisfy the conditions and
requirements set forth in the Disbursement Agreement for payment to Contractor
of a timely, proper and complete Application for Payment shall not be deemed to
be "good cause", unless such party's failure satisfy any such conditions and
requirements of the Disbursement Agreement is attributable to matters within the
control of Contractor. In the event of a Payment Dispute, the Contractor shall
have the right to give written notice to the Owner of the existence of a Payment
Dispute. If said Payment Dispute is not resolved within ten (10) days following
such Payment Dispute notice from Contractor, Contractor shall be entitled to
give Owner a second written notice stating Contractor's intent to stop work on
account of such Payment Dispute within five (5) days after delivery of
Contractor's second notice, unless the Payment Dispute is not promptly resolved.
If the Payment Dispute is not resolved on or before the expiration of the five
(5) day period established by the Contractor's second notice, then Contractor
shall have the right to immediately stop all Work, in which event, the date for
Substantial Completion set forth in SECTION 4.2 and the Guaranteed Maximum Price
set forth in SECTION 5.2 each shall be subject to adjustment for proven impacts
upon the Project Schedule and the Guaranteed Maximum Price, respectively, as a
consequence of cessation and recommencement of the Work. Notwithstanding the
foregoing, Contractor shall not have the right to stop the Work on account of a
Payment Dispute if Owner follows the procedures outlined in clauses (i), (ii)
and (iii) of SECTION 13.9 above with respect to payment of disputed amounts.
13.11 If a Payment Dispute relates to the failure by Owner to pay Direct
Purchase Items which are due and payable, the Contractor shall have the right to
give written notice to the Owner of the existence of a Payment Dispute. If Owner
fails to pay Direct Purchase Items which are the subject of said Payment Dispute
within ten (10) days following such Payment Dispute notice from Contractor,
Contractor shall be entitled to appropriate time extensions and other relief
and/or additional direct costs (but not consequential damages), proven to be the
result of actual impacts to the Project Schedule.
13.12 Upon Substantial Completion of the Project, or as soon thereafter as
possible, Contractor shall submit a Request for Payment which shall set forth
all amounts due and remaining unpaid to Contractor less an amount (hereinafter
referred to as the "PUNCH LIST RETAINAGE") equal to the sum of (i) one hundred
seventy five percent (175%) of the value of all items to be completed or
corrected (hereinafter referred to as the "PUNCH LIST"), and (ii) the greater of
$50,000 or one hundred seventy five percent (175%) of the value of all items to
be completed or corrected to obtain a permanent unconditional Certificate of
Occupancy for the entire Project. Upon approval of such Request for Payment by
Owner and Architect and satisfaction of all conditions set forth in the
Disbursement Agreement, and provided that Contractor has delivered all of the
items set forth in SECTION 14.1.1 below, Owner shall pay to Contractor the
amount due under such Request for Payment, less the amount of the Punch List
Retainage.
13.12.1 Owner shall pay the balance of the Punch List Retainage to Contractor as
and when all of the Punch List items are completed by Contractor and accepted by
Owner and a permanent unconditional Certificate of Occupancy has been issued for
the entire Project.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 31
13.12.2 In no event shall any interest be due and payable by Owner to
Contractor, any subcontractor or any other party on any of the sums rightfully
retained by Owner pursuant to any of the terms or provisions of any of the
Contract Documents.
13.13 Any provision of this Agreement to the contrary notwithstanding, Owner
may retain such funds from any Progress Payment to reasonably protect Owner if
any one or more of the following conditions exist:
13.13.1 Contractor is in material default of any of its obligations hereunder or
otherwise is in material default under any of the Contract Documents or this
Agreement has been terminated as a result thereof; or
13.13.2 Any part of such payment is attributable to Work which is defective or
not performed in accordance with the Criteria and Scope and the Drawings and
Specifications, provided, however, such payment shall be made as to the part
thereof attributable to Work which is performed in accordance with the Criteria
and Scope and the Drawings and Specifications and is not defective; or
13.13.3 Contractor has failed to make payments in accordance with its contracts
with Contractor's subcontractors or for material or labor used in the Work for
which Owner has made payment to Contractor; or
13.13.4 If Owner reasonably determines that the portion of the GMP, including
pending Change Orders, outstanding proposals and the like, then remaining unpaid
will not be sufficient to complete the Work in accordance with the Drawings and
Specifications, whereupon no additional payments will be due Contractor
hereunder unless and until Contractor performs a sufficient portion of the Work
so that such portion of the Contract Sum then remaining unpaid is determined by
Owner to be sufficient to so complete the Work; or
13.13.5 If Owner reasonably determines that Contractor has not met, or will not,
with prompt acceleration of the Work, meet the Scheduled Completion Date.
13.14 In the event Owner elects to withhold from payment to Contractor any
amounts to which Owner may be entitled to withhold as above provided, then Owner
shall only withhold the fair market value of such Work, claims or payments; and
in no case shall be withheld more than such total value. Failure to comply with
this provision is a material breach of this Agreement.
13.15 No partial payment made hereunder shall be, or shall be construed to be,
final acceptance or approval of that part of the Work to which such partial
payment relates or relieve Contractor of any of its obligations or a waiver of
any rights Owner may have hereunder with respect thereto.
13.16 Contractor shall, within fifteen (15) days following receipt of payment
from Owner, pay all bills for labor and material performed and furnished by
others in connection with the performance of the Work for which such payment is
made, and upon request by Owner, shall provide Owner with evidence of such
payment.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 32
13.17 Payments due and unpaid under the Contract Documents shall bear interest
from the date payment is due at the per annum interest rate equal to two percent
(2%) in excess of the Prime Rate, as reported in the "Money Rates" column of the
most recent edition of THE WALL STREET JOURNAL, provided such interest rate does
not exceed the highest legal rate allowed under the laws of the state where such
Project is located.
13.18 Contractor shall be entitled to receive payment in the amount of
Seventy-Five Thousand Dollars ($75,000.00) in the first requisition to cover the
cost of mobilization. This payment is included in the GMP.
13.19 All payments to be made hereunder shall be by wire transfer to the
following unless otherwise notified in writing by Contractor:
ACCOUNT NAME: ▇▇▇ ▇▇▇▇▇▇▇▇ Corp
ACCOUNT TITLE: Depository Account
ABA #: ▇▇▇▇▇▇▇▇▇
Account #: ▇▇▇-▇▇▇-▇
Bank Location: The Peoples Bank
Biloxi, MS
(▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE 14
FINAL PAYMENT
14.1 Upon receipt of written notice that the Work is ready for final
inspection and acceptance and upon receipt of a final Application for Payment,
Owner, the Architect and the Independent Construction Consultant will promptly
make such inspection, and when Owner, the Architect and the Independent
Construction Consultant find the Work acceptable under the Contract Documents,
and the Contract fully performed, and all conditions precedent within the
control of Contractor to final payment pursuant to the Disbursement Agreement
have been fully satisfied, Owner will promptly issue final payment to
Contractor. Neither final payment nor any remaining retained percentage shall
become due, however, until Contractor submits to Owner (1) an affidavit that
payrolls, bills for materials and equipment, and other indebtedness connected
with the Work for which Owner or Owner's property might be responsible or
encumbered (less amounts withheld by Owner) have been paid or otherwise
satisfied; (2) consent of surety, if any, to final payment, if requested by
Owner; (3) a preliminary accounting for the Cost of Work and Contractor's Fee in
accordance with ARTICLE 12; and (4) if required by Owner, other data
establishing payment or satisfaction of obligations such as receipts, releases
and waivers of liens, claims, security interests or encumbrances arising out of
the Contract to the extent and in such form as may be designated by Owner. If a
subcontractor refuses to furnish a release or waiver required by Owner,
Contractor may furnish a bond satisfactory to Owner to protect Owner against
such lien. If such lien remains unsatisfied after payments are made, Contractor
shall refund to Owner all money that Owner may be compelled to pay in
discharging such lien, including all costs and reasonable attorneys' fees.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 33
14.1.1 In addition, the Contractor's entitlement to final payment is expressly
conditioned upon the Contractor furnishing the Owner with all of the following:
(i) All maintenance and operating manuals;
(ii) Marked sets of Drawings and Specifications
reflecting "as built" conditions;
(iii) The as built drawings and specifications shall be
turned over to the Architect as part of the closeout
requirement. The Architect and Engineers are responsible to
update the CADD drawing files to reflect the changes in the
work made during construction based on the marked-up drawings
at no additional cost to Contractor.
(iv) Any special guarantees or warranties required by
the Contract Documents;
(v) Any assignment and/or transfer of all guarantees
and warranties from Subcontractors, vendors, suppliers and
manufacturers;
(vi) A list of the names, addresses and phone numbers
of all Subcontractors and other persons who provided
guarantees and warranties;
(vii) The delivery from the Contractor to the Architect
and Owner of a permanent and unconditional Certificate of
Occupancy; and
(viii) The satisfaction by Contractor of all conditions
and requirements of the Disbursement Agreement to final
payment that are within the control of Contractor, including,
without limitation, the delivery by the Contractor of all
certifications, information and documentation required to be
delivered under the terms of the Disbursement Agreement that
are within the control of Contractor.
14.2 If, after Substantial Completion of the Work, final completion thereof
is materially delayed through no fault of Contractor or by issuance of Change
Orders affecting final completion, Owner shall, upon application by Contractor
and without terminating the Contract, make payment of the balance due for the
portion of the Work fully completed and accepted. If the remaining balance for
Work not fully completed or corrected is less than retainage stipulated in the
Contract Documents, and if bonds have been furnished, the written consent of
surety to payment of the balance due for that portion of the Work fully
completed and accepted may be submitted by Contractor to Owner prior to
certification of such payment. Such payment shall be made under terms and
conditions governing final payment, except that it shall not constitute a waiver
of claims.
14.3 Acceptance of final payment by Contractor, a subcontractor or material
supplier shall constitute a waiver of claims by that payee except those
previously made in writing and identified by that payee as unsettled at the time
of final Application for Payment.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 34
14.4 Contractor agrees not to deliver to the Disbursement Agent under the
Disbursement Agreement any objection to a request by Owner for disbursement of
the remaining funds in the Construction Disbursement Account (as defined in the
Disbursement Agreement), absent good cause shown. In the event (a) Contractor
makes objection to any certificate of Owner requesting disbursement of remaining
funds in the Construction Disbursement Account, and such objection (i) requires
Owner to reserve additional funds in the Construction Disbursement Account, or
(ii) prevents Owner from obtaining the amount of Owner's requested disbursement,
and (b) if such objection shall prove to be unwarranted, incorrect or otherwise
resolved in favor of Owner, Contractor shall pay to Owner interest at the rate
of ten percent (10%) per annum on all amounts Owner would have received pursuant
to its request for disbursement of the remaining funds in the Construction
Disbursement Account had Contractor not made such objection. If such objection
by Contractor shall prove to be warranted, correct or otherwise resolved in
favor of Contractor, Owner shall pay to Contractor interest at the rate of ten
percent (10%) per annum on the amount of additional funds reserved in the
Construction Disbursement Account specified in Contractor's objection notice.
Interest at the specified rate shall accrue for the period commencing on the
date of Contractor's objection notice to the date such funds are disbursed from
the Construction Disbursement Account, and shall be paid to the prevailing party
not later than thirty (30) days after disbursement of such funds. The prevailing
party also shall be entitled to recover from the other party all of its
attorneys' fees, costs and expenses associated with the objection and any
contest relating thereto.
ARTICLE 15
MEDIATION AND ARBITRATION
15.1.1 MEDIATION -- See Section 4.5 of AIA 201 General Conditions attached
hereto as EXHIBIT "A".
15.2 ARBITRATION -- See Section 4.6 of AIA 201 General Conditions attached
hereto as EXHIBIT "A".
15.3 ASSIGNMENT
This Agreement shall not be assigned by either Party without the written consent
of both Parties, except that Owner shall have the right to assign this Agreement
to (a) any entity controlled by or under common control with Owner, (b) a
purchaser of substantially all of the assets of Owner or to the surviving entity
in a merger or consolidation, or (c) to the Trustee, to one or more lenders, or
to an agent for one or more lenders providing Project Financing. However, no
such assignment by Owner shall release Owner of its obligations hereunder unless
and then only to extent agreed to by the Contractor in writing.
ARTICLE 16
USES OF PREMISES BY OWNER PRIOR TO COMPLETION
16.1 If prior to Substantial Completion of the Work hereunder, any portion of
the Work is at such state of construction to permit the same, and Owner is
desirous of using portions of the
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 35
Work or takes possession of portions thereof to complete tenant work (or to
allow tenants such as Hard Rock to complete their tenant improvement work in the
Hard Rock cafe and the Hard Rock retail store premises) with other contractors,
or is desirous of showing portions of the Work to prospective tenants, then
Owner may do so only upon the following conditions:
16.1.1 that use or inspection of such portion of the premises will not in any
manner interfere with, hinder or delay Contractor in the performance of its Work
hereunder;
16.1.2 that Owner, its agents, employees, invitees, and separate contractors
shall comply with all safety rules and regulations established by applicable
governmental authorities and Contractor;
16.1.3 that use of the premises by Owner, its employees, agents, invitees, and
separate contractors, is at sole risk of loss to Owner both as to personal
injuries, death of persons, and property damage which may be incurred or
sustained in or about the premises by Owner, its employees, agents, invitees,
and separate contractors;
16.1.4 the Owner shall assume responsibility for, and indemnify, protect,
defend and save Contractor harmless from, any such personal injuries, death of
persons and property damage resulting from any such personal injuries, death of
persons and property damage resulting from the aforesaid use of the premises or
part thereof by Owner, its employees, agents, invitees and separate contractors,
subject to the limitations set forth in ARTICLE 19 of this contract;
16.1.5 that the Owner maintain public liability and property damage insurance,
at its expense, protecting the interest of Owner and Contractor with respect to
the aforesaid uses and extending to the use of the premises by Owner, its
employees, agents, and invitees in a company or companies satisfactory to
Contractor, and in amounts of not less than $1,000,000.00 single limit per
occurrence or accident as to personal injuries and death of persons, $500,000.00
as to property damage per occurrence or accident, with additional excess
umbrella coverage of $30,000,000.00 and Owner has furnished Contractor with a
Certificate of Insurance verifying the subject coverage, with the Contractor as
an Additional Insured with respect to the operations of the Owner and primary to
other available insurance, containing a provision for the insurer to furnish
Contractor with at least thirty (30) days' written notice prior to cancellation.
The existence of such insurance coverage shall not limit Owner's liability under
Owner's indemnification herein. Owner shall pay its fair proportion of all costs
and expenses applicable to the portion of the premises used by it for any of the
aforesaid purposes (including water, power, etc.). Contractor shall not be
obligated to let Owner use any part of the Work prior to substantial completion
of the Work hereunder except in strict compliance with the above provisions. The
foregoing provisions shall not be deemed as a waiver of any liability which
Contractor may have to Owner or to third parties for Contractor's negligence.
16.2 Contractor shall coordinate the work of its forces and the work of any
separate contractors of Owner or tenants such as Hard Rock, to allow for the
timely completion by Owner or such tenants of their tenant improvement work.
Owner acknowledges and agrees that Contractor shall have no responsibility or
liability for the failure of any separate contractors of Owner or tenants to
perform their respective obligations to Owner, except that Contractor shall be
responsible and liable for the performance of work (i) by any separate
contractor, vendor or supplier with whom Owner has contracted with under a
direct contract, subcontract or purchase
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 36
order, pursuant to Owner's direct purchase program, and (ii) by any separate
contractors of Owner or tenants who are unable to perform their work because of
Contractor's failure to coordinate the work of its own forces with such separate
contractors.
ARTICLE 17
INSURANCE
17.1 CONTRACTOR'S LIABILITY INSURANCE.
The Contractor shall purchase from and maintain in a company or companies
lawfully authorized to do business in the jurisdiction in which the project is
located such insurance as will protect the Contractor, Owner, Trustee,
Disbursement Agent and the Independent Construction Consultant from claims set
forth below which may arise out of or result from the Contractor's operations
under the Contract and for which the Contractor may be legally liable, whether
such operations be by the Contractor or by a Subcontractor or by anyone directly
or indirectly employed by any of them, or by anyone for whose acts any of them
may be liable.
17.1.1 Claims under workers' or workmen's compensation disability benefit and
other similar employee benefits acts, including United States ▇▇▇▇▇▇▇▇▇ and
Harbor Workers Act and ▇▇▇▇▇ Act, which are applicable to the Work to be
performed, at statutory limits;
17.1.2 Claims for damages because of bodily injury, occupational sickness or
disease, or death of the Contractor's employees;
17.1.3 Claims for damages because of bodily injury, sickness or disease, or
death of any person other than the Contractor's employees;
17.1.4 Claims for damages insured by usual personal injury liability coverage
which are sustained (a) by a person as a result of an offense directly or
indirectly related to employment of such person by the Contractor, or (b) by
another person;
17.1.5 Claims for damages, other than to the Work itself, because of injury to
or destruction of tangible property, including loss of use resulting therefrom;
17.1.6 Claims for damages because of bodily injury, death of a person or
property damage arising out of ownership, maintenance or use of a motor vehicle;
and
17.1.7 Claims involving contractual liability applicable to the Contractor's
indemnity obligations under SECTION 3.18 of the AIA 201 General Conditions
attached hereto as EXHIBIT "A".
17.1.8 Claims for damages resulting from errors, omissions and wrongful acts in
performing professional design services.
All such required insurance shall be evidenced by policies issued by an
insurance company rated "A-VII" or better by A.M. Best & Co. and licensed to do
business in the State of
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 37
Mississippi. Each such policy is hereinafter referred to in this Agreement as an
"Insurance Policy". All insurance carried by Contractor shall be primary and
non-contributory.
Contractor shall furnish to Owner copies of all policies evidencing the
foregoing coverage for Owner's review. In the event Owner reasonably disapproves
of any coverage issues, policy limits, deductible amounts or other provisions of
such insurance, Owner shall notify Contractor in writing immediately so that
Contractor may take such steps as may be necessary to have such policy modified
to satisfy Owner's objections. Any additional cost to the Contractor to modify
said policy to reflect Owner's changes shall be an increase to the GMP. If Owner
fails to raise any objections in writing within 10 days following delivery of
such policy of insurance to Owner, such failure shall be deemed an acceptance of
such policy by Owner.
Certificates of Insurance, in form and substance reasonably acceptable to Owner
and the Independent Construction Consultant, shall be filed with the Owner prior
to commencement of the Work. These Certificates and the insurance policies
required above shall contain a provision that coverage afforded under the
policies will not be canceled or allowed to expire until at least 30 days' prior
written notice has been given to the Owner and the Disbursement Agent. Each
insurance policy required hereunder shall name Owner, Architect, Architect's
consultants, Trustee, Disbursement Agent, the Independent Construction
Consultant and Rank PLC, as additional insureds thereunder.
17.2 OWNER'S LIABILITY INSURANCE.
The Owner shall be responsible for purchasing and maintaining the Owner's usual
liability insurance. Optionally, the Owner may purchase and maintain other
insurance for self-protection against claims which may arise from operations
under the Contract. Whichever option Owner elects, Owner shall cause its general
liability carrier to furnish Contractor with a waiver of subrogation. The
Contractor shall not be responsible for purchasing and maintaining this optional
Owner's liability insurance unless specifically required by the Contract
Documents. Any and all policies of insurance coverage required to be carried by
Contractor shall be primary, and any optional Owner's liability insurance shall
not respond to any loss unless and until all insurance coverages required under
the Contract Documents to be carried by Contractor has been exhausted.
17.3 PROPERTY INSURANCE
17.3.1 Unless otherwise provided, the Owner shall purchase and maintain, in a
company or companies lawfully authorized to do business in the jurisdiction in
which the project is located, Builder's Risk insurance in the amount of the
initial GMP as well as subsequent modifications thereto for the entire Work at
the site on a replacement cost basis. Such insurance shall be maintained until
substantial completion of the Project is effected. This insurance shall include
interests of the Owner, Disbursement Agent, Trustee, the Independent
Construction Consultant, the Contractor, Subcontractors and Sub-subcontractors
in the Work, as their interests may appear. The insurance shall be on an
all-risk policy form and shall insure against the perils of fire and extended
coverage and physical loss or damages, including, without duplication of
coverage, flood (including wind-driven water and rain) theft, vandalism,
malicious mischief, collapse, false work, temporary buildings and debris
removal, including demolition occasioned
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 38
by enforcement of any applicable legal requirements, and shall cover reasonable
compensation for services and expenses required as a result of such insured
loss. Owner shall furnish to Contractor a copy of such Builder's Risk policy for
Contractor's review. In the event Contractor reasonably disapproves of any
coverage issues, policy limits, deductible amounts or other provisions of such
insurance, Contractor shall notify Owner in writing immediately so that Owner
may take such steps as may be necessary to have such policy modified to satisfy
Contractor's objections. If Contractor fails to raise any objections in writing
within 10 days following delivery of such policy of insurance to Contractor,
such failure shall be deemed an acceptance of such policy by Contractor.
Notwithstanding anything to the contrary appearing herein, Owner shall bear all
risk of loss including cost not covered by deductibles to the property which may
occur and agrees to look solely to the proceeds of insurance in the event of a
loss, the only exception being losses which may occur as a result of
Contractor's negligence or willful acts, and then, only to the extent not
covered by insurance. If the Owner does not purchase such property insurance as
provided for herein, the Owner shall so inform the Contractor in writing prior
to commencement of the Work. The Contractor may then effect insurance which will
protect the interests of the Contractor, Subcontractors and Sub-subcontractors
in the Work, and the cost thereof shall be funded from the Contingency. If the
Contractor is damaged by the failure or neglect of the Owner to purchase or
maintain insurance as described above, without so notifying the Contractor, then
the Owner shall bear all reasonable costs properly attributable thereto.
17.3.2 LOSS OF USE INSURANCE. The Owner, at the Owner's option, may purchase
and maintain such insurance as will insure the Owner against loss of use of the
Owner's property due to fire or other hazards, however caused. The Owner waives
all rights of action against the Contractor for loss of use of the Owner's
property, including consequential losses due to fire or other hazards, however
caused.
17.3.3 WAIVERS OF SUBROGATION. The Owner and Contractor waive all rights
against (a) each other and any of the subcontractors, sub-subcontractors, agents
and employees, each of the other, and (b) the design professional subcontractor
and design professional subcontractor's consultants, for damages caused by fire
or other perils to the extent covered by property insurance obtained pursuant to
this Section or other property insurance applicable to the site where the Work
is being performed, as well as the Work, except such rights as they have to
proceeds of such insurance held by the Contractor as fiduciary. The Owner or
Contractor, as appropriate, shall require of the design professional
subcontractor and design professional subcontractor's consultants,
subcontractors, sub-subcontractors, agents and employees of any of them, by
appropriate agreements, written where legally required for validity, similar
waivers each in favor of other parties enumerated herein. The policies shall
provide such waivers of subrogation by endorsement or otherwise. A waiver of
subrogation shall be effective as to a person or entity even though that person
or entity would otherwise have a duty of indemnification, contractual or
otherwise, did not pay the insurance premium directly or indirectly, and whether
or not the person or entity had an insurable interest in the property damaged.
This provision shall survive termination and/or completion of the Project.
17.3.4 If during the Project construction period the Owner insures properties,
real or personal or both, adjoining or adjacent to the site by property
insurance under policies separate from those insuring the Project, the Owner
shall waive all rights in accordance with the terms of PARAGRAPH
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 39
17.3.3 for damages caused by fire or other perils covered by this separate
property insurance. All separate policies shall provide this waiver of
subrogation by endorsement or otherwise.
17.3.5 A loss insured under Builder's Risk insurance shall be adjusted by the
Owner and made payable to the Owner. The Owner shall pay Contractor and
Subcontractors their just shares of insurance proceeds received by the Owner,
and by appropriate agreements, written where legally required for validity,
shall require Subcontractors to make payments to their Sub-subcontractors in
similar manner.
17.3.6 Partial occupancy or use of the premises shall not commence until the
insurance company or companies providing insurance have consented to such
partial occupancy or use by endorsement or otherwise. The Owner and the
Contractor shall take reasonable steps to obtain consent of the insurance
company or companies and shall, without mutual written consent, take no action
with respect to partial occupancy or use that would cause cancellation, lapse or
reduction of insurance.
17.4 ERRORS & OMISSIONS INSURANCE
The Contractor shall purchase and maintain errors and omissions insurance to
cover the design/build work on the Parking Garage Structure in the amounts of
not less than $2,000,000 per occurrence and $2,000,000 total aggregate, with no
self-insured retention. For any damages arising from deficiencies in design or
other performance by Contractor's design professionals, Contractor shall be
liable to Owner to the same extent for such deficiencies as would be applicable
if the design professionals contracted directly with the Owner. Owner shall not
be entitled to recover from Contractor damages suffered or incurred by Owner on
account of deficiencies in design or other performance by Contractor's design
professionals greater than the limits of Contractor's professional liability
insurance required hereunder.
17.4.1 CONTRACTOR CONTROLLED INSURANCE PROGRAM INTENTIONALLY DELETED
ARTICLE 18
INDEMNIFICATION
18.1 INDEMNIFICATION -- See Section 3.18 of the AIA 201 General Conditions
attached hereto as EXHIBIT "A".
ARTICLE 19
WARRANTY - CONTRACTOR'S WARRANTY OR GUARANTY
19.1 Contractor confirms its Warranty or Guaranty as set forth in the other
Contract Documents, provided, however, that such Warranty or Guaranty is
qualified or limited by the following provisions which shall be controlling
wherever in conflict with the provisions of the Warranty or Guaranty set forth
in said other Contract Documents. The qualifications or limitations upon said
Warranty or Guaranty are the following:
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 40
19.1.1 Contractor warrants that it will furnish all of the materials and work
necessary to complete the improvements in a good and workmanlike and first class
manner and will furnish all of the equipment which will be installed in a good
and workmanlike and first class manner, as all of the same are called for in the
Contract Documents; and Contractor shall obtain and deliver to Owner such
standard manufacturer's warranties as each equipment manufacturer may furnish
with any equipment. Except with respect to the Parking Garage to be designed and
built by Contractor pursuant to this Agreement, Contractor does not warrant or
guarantee the design or sufficiency of the design of the improvements or that
the materials and equipment furnished, pursuant to the Specifications of
Architect, will accomplish the purposes intended, provided, however, that
Contractor's warranty shall include the good, workmanlike and proper
construction of the improvements and installation of such materials and
equipment, free of defective workmanship.
19.1.2 As to all materials and equipment (including all Direct Purchase Items
and the barge vessels) and as to Contractor's workmanship, Contractor warrants
the same against defects for a period of one (1) year as to all defects
appearing within said year and as to which Owner places Contractor on written
notice thereof within said year. Contractor covenants and agrees to promptly
repair or replace, at its sole cost and expense, any and all defective Work,
including, without limitation defective materials and equipment. As to all
defects (other than latent defects) as to which Owner does not place Contractor
on written notice thereof within the one (1) year warranty period and all
defects appearing after one (1) year, Contractor makes no warranty for itself,
without limiting, however, warranties of any subcontractors or others which may
be for more than one (1) year, and after said one (1) year period, Contractor
will aid Owner, at Owner's expense, in enforcing any warranties against others.
19.1.3 All warranties, if the same do not operate by any specific written
provision of any warranty or by operation of law to be in favor of Owner, unless
required to be enforced by the Contractor to back up any obligation which it has
hereunder, shall be deemed to be assigned to Owner (if assignable), such
assignment to take effect immediately upon completion of the work of Contractor
or after expiration of Contractor's warranty. If and to the extent any such
warranties by their terms are not assignable, Contractor shall enforce such
warranties for the benefit of Owner, to provide Owner with the benefit thereof
for the entire period of such warranties.
As to all warranties called for under the Contract Documents, it is understood
and agreed that the limitation of Warranty or Guaranty in favor of Contractor in
this ARTICLE 19 shall not be construed as operating in favor of any
subcontractor or material supplier. Should any longer or other warranty or
guaranty be called for under the Contract Documents or imposed upon any
subcontractor and/or material supplier by operation of law, nothing set forth in
this Agreement shall be deemed to be a limitation thereof, nor a waiver of any
defense to the enforcement of such longer or other warranty as may be available
to any subcontractor or supplier under applicable law.
Contractor's Warranty is a one (1) year warranty, plus Contractor's duty to
obtain any longer or other warranties called for under the Contract Documents
from subcontractors and suppliers for benefit of Owner, which longer or other
warranties are not guaranteed by Contractor beyond the first year, subject to
the qualifications and limitations set forth above. During Contractor's one
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 41
(1) year Warranty, Contractor will enforce the subcontractors' and suppliers'
warranties for benefit of Owner or its assigns, except those warranties of
specific equipment stated above, as to which Owner will look solely to the
equipment manufacturer. After expiration of Contractor's one (1) year Warranty,
Contractor will continue to aid Owner in enforcing any continuing warranties,
but enforcement thereafter shall be at Owner's expense.
The one (1) year Warranty shall run from the date of Substantial Completion. The
Contractor's Warranty shall survive beyond the one year after Substantial
Completion in which the Contractor agrees to correct defective Work pursuant
SECTION 19.1.1 above. The Contractor's duty to repair defective Work in no way
limits, diminishes or otherwise affects any warranty rights or other rights or
remedies that the Owner has or may have at law or in equity against the
Contractor for the Contractor's performance of the Work.
ARTICLE 20
TERMINATION OR SUSPENSION
20.1 SUSPENSION OF WORK
If the Project is suspended by Owner, in whole or in part, for more than sixty
(60) consecutive days, Contractor shall be paid for all services performed,
prior to receipt of written notice from Owner of such suspension together with
reimbursable expenses then due and all termination expenses as defined in this
Article and a reasonable profit herein. If the Project is resumed after being
suspended for more than sixty (60) consecutive days, the Contract time and
amount shall be equitably adjusted.
20.2 TERMINATION
If Contractor fails to commence the Work in accordance with the provisions of
this Agreement or fails to diligently prosecute the Work to completion thereof
in a diligent, efficient, and workmanlike manner, and in strict accordance with
the provisions of the Contract Documents; fails to use an adequate amount or
quality of skilled personnel or equipment to complete the Work in accordance
with the Project Schedule, fails to perform any of its obligations under the
Contract Documents, or fails to make payments to its subcontractors, materialmen
or laborers in a timely manner, then Owner shall have the right, if Contractor
shall not cure any such breach after five (5) days' written notice thereof, (or
if such breach is of such a nature as to be incapable of cure within such
period, shall not commence action to cure said breach within such period and
thereafter diligently and continuously pursue such action to complete such cure
promptly), to: (1) terminate this Agreement; (2) take possession of and use all
or any part of Contractor's materials, equipment, supplies, and other property
of every kind used by Contractor in the performance of the Work and to use such
property in the completion of the Work; or (3) complete the Work in any manner
it deems desirable, including engaging the services of other parties therefor.
Any such act by Owner shall not be deemed a waiver of any other right or remedy
of Owner. If, after exercising any such remedy, the cost to Owner of the
performance of the balance of the Work is in excess of that part of the Contract
Sum, which has not theretofore been paid to Contractor hereunder, Contractor
shall be liable for and shall reimburse Owner for such excess.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 42
In addition to and not in limitation of the foregoing, the Owner shall have the
right, at any time, to terminate this Agreement for the Owner's convenience and
without cause. In case of such termination for the Owner's convenience, the
Contractor shall be entitled to receive payment for any Pre-Construction
services and Work executed, together with reasonable overhead and profit of the
Work executed as of the date of such termination, and the amount incurred by
Contractor as losses in connection with terminating any subcontracts and
purchase orders plus any proven loss sustained upon any services, materials,
equipments, tools, construction equipment, and machinery and demobilization
costs.
20.3 Contractor's Termination
If Owner fails to perform any of its obligations hereunder, Contractor shall
have the right to give Owner a written notice thereof, stating the nature of the
breach complained of. If Owner does not cure such breach within thirty (30) days
after receipt of such notice, Contractor shall have the right to terminate this
Agreement by giving Owner written notice thereof at any time thereafter while
such breach remains uncured, and payment shall be made to Contractor for all
Work executed and for any proven loss sustained upon any services, materials,
equipment, tools, construction equipment, and machinery, and reasonable
demobilization costs. Contractor shall similarly have the right to terminate
upon thirty (30) days' notice if the Work is suspended for a period of thirty
(30) consecutive days or more from causes not the fault of Contractor.
20.4 The amount, if any, to be paid to Contractor upon a termination of this
Agreement shall not cause the GMP to be exceeded, nor shall it exceed an amount
to be calculated as follows:
20.4.1 Take the Cost of Work incurred by the Contractor to the date of
termination;
20.4.2 Add the Contractor's Fee computed upon the Cost of Work to the date of
termination at the rate stated in PARAGRAPH 6.1.1 or, if the Contractor's Fee is
stated as a fixed sum in the Subparagraph, an amount that bears the same ratio
to that fixed-sum Fee as the Cost of Work at the time of termination bears to a
reasonable estimate of the probable Cost of Work upon its completion; and
20.4.3 Subtract the aggregate of previous payments made by the Owner and add
the amount incurred as losses in connection with terminating any subcontracts
and purchase orders plus any proven loss sustained upon any services, materials,
equipments, tools, construction equipment, and machinery and demobilization
costs.
20.4.4 The Owner shall also pay the Contractor fair compensation, either by
purchase or rental at the election of the Owner, for any equipment owned by the
Contractor that the Owner elects to retain and that is to otherwise included in
the Cost of Work under ARTICLE 8. To the extent that the Owner elects to take
legal assignment of subcontracts and purchase orders (including rental
agreements), the Contractor shall, as a condition of receiving the payments
referred to in this ARTICLE 20, execute and deliver all such papers and take all
such steps, including the legal assignment of such subcontracts and other
contractual rights of the Contractor, as the Owner may require for the purpose
of fully vesting in the Owner the rights and benefits of the Contractor under
such subcontracts or purchase orders.
20.5 BANKRUPTCY OF CONTRACTOR.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 43
It is recognized that if Contractor is adjudged a bankrupt, or makes a general
assignment for the benefit of creditors, or if a receiver is appointed for the
benefit of its creditors, or if a receiver is appointed on account of its
insolvency, such could impair or frustrate Contractor's performance of this
Agreement. Accordingly, it is agreed that upon the occurrence of any such event,
Owner shall be entitled to request of Contractor, or its successor in interest,
adequate assurance of future performance in accordance with the terms and
conditions hereof. Failure to comply with such request within ten (10) days of
delivery of the request shall entitle Owner to terminate this Agreement and the
accompanying rights set forth herein. In all events pending receipt of adequate
assurance of performance and actual performance in accordance therewith, Owner
shall be entitled to proceed with the Work with its own forces or with other
contractors on a time and material or other appropriate basis, the cost of which
will be back charged against the Contract Sum hereof.
ARTICLE 21
MISCELLANEOUS PROVISIONS
21.1 REMEDIES CUMULATIVE
The rights and remedies of Owner and Contractor under this Agreement shall be
non-exclusive, and shall be in addition to all the other remedies available to
such Parties at law or in equity.
21.2 Punchlist
Contractor shall be responsible for satisfying all items on any and all
reasonable Punch Lists generated by Owner or Owner's Representative.
21.3 EMPLOYMENT RESTRICTION
Both Owner and Contractor agree that during the progress of the Work, and for a
period of one (1) year after Substantial Completion, neither shall employ any
person that has been or is currently employed by the other on this Project
without the written consent of the other Party.
21.4 APPLICABLE LAWS
This Agreement shall be construed and enforced in accordance with and under the
laws of the State of
Mississippi, without regard to its conflict of laws
principles; and should any provision thereof be found to be invalid by a court
or courts of competent jurisdiction, the same shall not invalidate the remaining
provisions of this Agreement.
21.5 NOTICES
All notices to be given hereunder shall be in writing, and all payments to be
made hereunder shall be by check, and may be given, served, or made by
depositing the same in the United States Mail addressed to the authorized
representative of the Party to be notified, postage paid, and registered or
certified with return receipt requested or by delivering the same in person to
the said authorized representative of such Party. Notice deposited in the mail
in accordance with the provisions hereof shall be effective unless otherwise
stated in such notice or in this Agreement
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 44
from and after the fourth (4th) day next following the date postmarked on the
envelope containing such notice, or when actually received, whichever is
earlier. Notice given in any other manner shall be effective only if and when
received by the Party to be notified. All notices to be given to the Parties
hereto shall be sent to or made at the addresses heretofore set forth. By giving
the other Party at least fifteen (15) days' written notice thereof, the Parties
hereto specify as its address for the purposes hereof any other address in the
United States of America.
21.6 WAIVER
No consent or waiver, express or implied, by either Party to this Agreement to
or of any breach or default by the other in the performance of any obligations
hereunder shall be deemed or construed to be a consent or waiver to or of any
other breach or default by such Party hereunder. Failure on the part of any
Party hereto to complain of any act or failure to act of the other Party or to
declare the other Party in default hereunder, irrespective of how long such
failure continues, shall not constitute a waiver of the rights of such Party
hereunder. Inspection by, payment by, or tentative approval or acceptance by
Owner or the failure of Owner to perform any inspection hereunder, shall not
constitute a final acceptance of the Work or any part thereof and shall not
release Contractor of any of its obligations hereunder.
21.7 CONFLICTS
In case of conflicts between the provisions of this Agreement, any ancillary
documents executed contemporaneously herewith or prior hereto, or any other of
the Contract Documents, the provisions of this Agreement (including all
exhibits) shall prevail.
21.8 NOTIFICATION OF LIENS
The Contractor shall notify the Owner immediately if the Contractor becomes
aware of the existence of any lien upon the Project site.
21.9 REMOVAL OF LIENS
Should any lien attach to the site of the Project or the Project by the
Subcontractors, Suppliers, or anyone directly or indirectly employed by any of
them, the Contractor shall act diligently to obtain removal of that lien
(including posting of a bond, if permitted by the court).
21.10 INDEMNIFICATION
The Contractor shall defend, indemnify, and hold the Owner and Owner's Lender
harmless for any loss, claim, damage, or expense, including reasonable
attorneys' fees and expense, arising from or related to liens which attach to
the Project site filed by any Subcontractor, Sub-subcontractor, or Supplier, or
anyone directly or indirectly employed by any of them and by anyone for whose
acts any of them may be liable.
21.11 RELEASE AND WAIVER
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 45
When the Work is completed, the Contractor shall furnish the Owner a complete
release and waiver in form acceptable to the Owner and Owner's Lender of all
liens raising out of this Agreement.
21.12 CONFORMITY OF OTHER CONTRACTS
The Contractor agrees to insert in all of its subcontracts and purchase orders
hereunder provisions which shall conform substantially to the language of
Sections 22.10, 22.11 and 22.12.
21.13 BONDS
The Contractor, prior to commencement of any Work, shall provide to the Owner,
Trustee and the Disbursement Agent, within the Guaranteed Maximum Price, the
Bond in the form of EXHIBIT "J" attached hereto, covering 100% of the Work,
including Change Orders, naming the Owner and Trustee (for the benefit of the
noteholders), as co-obligees, covering the faithful performance of the Contract
and payment of obligations arising under this Agreement.
21.15. ATTORNEYS FEES, COSTS AND EXPENSES
Each of Owner and Contractor shall be entitled to recovery of their attorneys'
fees, costs and expenses in enforcing their rights and remedies hereunder.
ARTICLE 22
PROTECTION OF PERSONS AND PROPERTY
22.1 SAFETY PRECAUTIONS AND PROGRAMS
22.1.1 The Contractor shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the
performance of the Contract.
22.1.2 In the event the Contractor encounters on the site material reasonably
believed to be asbestos or polychlorinated biphenyl (PCB) which has not been
rendered harmless, petroleum waste, biohazardous substances, radioactive waste
or any other substance falling within the category of hazardous or toxic waste
under the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) or any other state or federal environmental statute or regulation,
hereinafter collectively referred to as "HAZARDOUS MATERIALS," the Contractor
shall immediately stop Work in the area affected and report the condition to the
Owner in writing. Owner shall thereafter as soon as reasonably possible conduct
a thorough investigation to determine if the suspected material in the affected
area is in fact Hazardous Materials and shall certify to Contractor that such
material is not Hazardous Materials or if such material is in fact Hazardous
Materials that such Hazardous Materials have been abated and that it is safe to
return to the affected area and resume work. Contractor may require Owner to
furnish copies of reports of tests conducted by a qualified testing laboratory
acceptable to Contractor verifying the absence of such Hazardous Materials
before Contractor will be required to resume work. The
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 46
Contract time and amount shall thereafter be equitably adjusted to account for
the time lost due to the encountering of the Hazardous Materials and the
reasonable cost associated therewith.
22.1.3 The Contractor shall not be required pursuant to the changes clause
herein to perform without consent any Work relating to Hazardous Materials.
22.1.4 To the fullest extent permitted by law, the Owner shall indemnify,
defend, protect and hold harmless the Contractor, the design professional
subcontractor and design professional subcontractor's consultants and agents and
employees of any of them from and against claims, damages, losses and expenses,
including but not limited to attorneys' fees, arising out of or resulting from
the encountering of Hazardous Materials at the project site (excluding any
Hazardous Materials introduced to the Project Site by the Contractor, the design
professional subcontractor and design professional subcontractor's consultants
and agents and employees of any of them), including but not limited to, any
fines, assessments or other sanctions imposed under any federal or state
environmental statute or regulation as well as costs or expenses associated with
clean up or other abatement procedures, regardless of whether or not such claim,
damage, loss or expense is caused in part by a party protected hereunder,
subject to the limitations set forth in ARTICLE 18 of this Contract. Such
obligation shall not be construed to negate, abridge or reduce other rights or
obligations which would otherwise exist as to a party or person described in
this PARAGRAPH 22.1.4.
22.1.5 To the fullest extent permitted by law, the Contractor shall indemnify,
defend, protect and hold harmless the Owner, the Owner's consultants and agents
and employees of any of them from and against claims, damages, losses and
expenses, including but not limited to attorneys' fees, arising out of or
resulting from any Hazardous Materials introduced to the Project Site by the
Contractor, the design professional subcontractor and design professional
subcontractor's consultants and agents and employees of any of them, including
but not limited to, any fines, assessments or other sanctions imposed under any
federal or state environmental statute or regulation as well as costs or
expenses associated with clean up or other abatement procedures, regardless of
whether or not such claim, damage, loss or expense is caused in part by a party
protected hereunder, subject to the limitations set forth in ARTICLE 18 of this
Contract. Such obligation shall not be construed to negate, abridge or reduce
other rights or obligations which would otherwise exist as to a party or person
described in this PARAGRAPH 22.1.4.
22.2 SAFETY OF PERSONS AND PROPERTY
22.2.1 The Contractor shall take reasonable precautions for safety of, and
shall provide reasonable protection to prevent damage, injury or loss to:
22.2.1.1 employees on the Work and other persons who may be affected thereby.
22.2.1.2 the Work and materials and equipment to be incorporated therein,
whether in storage on or off the site, under care, custody or control of
the Contractor or the Contractor's Subcontractors or Sub-subcontractors;
and
22.2.1.3 other property at the site or adjacent thereto, such as trees,
shrubs, lawns, walks, pavements, roadways, structures and utilities not
designated for removal, relocation or replacement in the course of
construction.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 47
22.2.2 The Contractor shall give notices and comply with applicable laws,
ordinances, rules, regulations and lawful orders of public authorities bearing
on safety of persons or property or their protection from damage, injury or
loss.
22.2.3 The Contractor shall erect and maintain, as required by existing
conditions and performance of the Contract, reasonable safeguards for safety and
protection, including posting danger signs and other warnings against hazards,
promulgating safety regulations and notifying owners and users of adjacent sites
and utilities.
22.2.4 When use or storage of explosives or other Hazardous Materials or
equipment or unusual methods are necessary for execution of the Work, the
Contractor shall exercise utmost care and carry on such activities under
supervision of properly qualified personnel.
23.2.5 The Contractor shall cause all of its subcontractors to comply with the
foregoing safety requirements.
ARTICLE 23
ENUMERATION OF CONTRACT DOCUMENTS
23.1 The Contract Documents, which constitute the entire Agreement between
Owner and Contractor, are listed in ARTICLE 1, as the same may be amended by any
modifications issued after execution of this Agreement, and are enumerated as
follows:
23.1.1 This Agreement is this executed Standard Form of Agreement Between Owner
and Contractor consisting of pages 1 through 51.
23.1.2 The General Conditions of the Contract of Construction, AIA Document
A201, 1997 edition, as enumerated in EXHIBIT "A" consisting of pages 1 through
66.
23.1.3 The Specifications, as enumerated in EXHIBIT "B" consisting of pages 1
through 3.
23.1.4 The Drawings, as enumerated in EXHIBIT "C" consisting of pages 1 through
4.
23.1.5 The Specifications for the Hard Rock Cafe Shell, as enumerated in
EXHIBIT "D-1" consisting of pages 1 through 3.
23.1.6 The Specifications for the Hard Rock Retail Store Shell, as enumerated
in EXHIBIT "D-2" consisting of pages 1 through 3.
23.1.7 The Project Schedule, as enumerated in EXHIBIT "E" consisting of pages 1
through 5.
23.1.8 The Schedule of Values, as enumerated in EXHIBIT "F" consisting of pages
1 through 17.
23.1.9 The Contractor's Assumptions, Qualifications and Clarifications to the
Guaranteed Maximum Price, and Schedule of Allowances, as enumerated in EXHIBIT
"G" consisting of pages 1 through 11.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 48
23.1.10 The Schedule of Liquidated Damages for Late Completion, as enumerated
in EXHIBIT "H" consisting of pages 1 and 2.
23.1.11 The Schedule of Bonus for Early Completion, as enumerated in EXHIBIT
"I" consisting of 1 page.
23.1.12 The Form of Payment and Performance Bond, as enumerated in EXHIBIT "J"
consisting of pages 1 through 2.
23.1.13 The Rental Rates for Equipment Rented from Contractor, as enumerated in
EXHIBIT "K" consisting of 1 page.
23.1.14 The Description of Preconstruction Phase Costs, as enumerated in
EXHIBIT "L" consisting of 1 page.
23.1.15
Mississippi Tax-Related Procedures, as enumerated in EXHIBIT "M",
consisting of pages M-1 through M-11 and Attachment One thereto consisting of
Exhibits ▇-▇, ▇-▇ and B-2 and C-1 through C-7 and Exhibit M-1 thereto.
23.1.16 Form of Barge Subcontract between Contractor and Corn Island Shipyard,
Inc., as enumerated in EXHIBIT "N", consisting of pages 1 through 14.
23.2 Whenever there shall appear any conflict between any provisions of the
Contract Documents, the controlling documents shall be the documents first
appearing in the order set forth above.
ARTICLE 24
ALLOWANCES
24.1 ALLOWANCES
Included in the Contract Sum are all allowances stated in EXHIBIT "G" consisting
of pages 1 through 11. Items covered by allowances shall be supplied for such
amounts and by such persons or entities as Owner may direct, but Contractor
shall not be required to employ persons or entities against which Contractor
makes reasonable objection.
24.1.1 Unless otherwise provided on the Contract Documents:
24.1.1.1 materials and equipment under an allowance shall be selected promptly
by Owner to avoid delay in the Work;
24.1.1.2 allowances shall cover the cost to Contractor of materials and
equipment delivered at the site and all required taxes, less applicable
trade discounts;
24.1.1.3 Contractor's cost for unloading and handling at the site, labor,
installation costs, overhead, profit, and other expenses contemplated
for stated allowance amounts shall be included in the allowance; and
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 49
24.2 whenever costs are more than or less than allowances, the GMP shall be
adjusted accordingly by Change Order. The amount of the Change Order shall
reflect: (1) the difference between actual costs and the allowances; and (2)
changes in Contractor's costs.
ARTICLE 25
AUTHORITY
25.1 AUTHORITY. The individual executing this Agreement on behalf of
Contractor represents and warrants to Owner that Contractor's Board of Directors
or Bylaws has granted to such individual the express authority to execute and
deliver this Agreement on behalf of Contractor, and that this Agreement, once
executed and delivered by such individual, will be binding upon and enforceable
against Contractor, in accordance with its terms.
ARTICLE 26
LIMITATION OF OWNER'S LIABILITY
26.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NO
PAST, PRESENT OR FUTURE PARTNER, MEMBER, SHAREHOLDER, MANAGER, DIRECTOR,
OFFICER, EMPLOYEE, AGENT OR ANY AFFILIATE OF OWNER, NOR ITS OR THEIR RESPECTIVE
HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS, SHALL BE PERSONALLY
LIABLE FOR ANY JUDGMENT OR DEFICIENCY RELATING TO OR ARISING OUT OF THIS
AGREEMENT OR ANY DEFAULT BY OWNER HEREUNDER, except to the extent, if any, that
any of such parties or individuals become the Owner hereunder. No member or
manager of Owner shall have any personal liability under this Agreement or any
other instrument, document or agreement entered into or delivered in connection
with this Agreement and the transactions contemplated hereby (collectively, the
"Related Documents") and no recourse for the payment of any amount due under
this Agreement, or for any claim arising out of or relating to this Agreement or
any other Related Documents, whether for failure to pay, perform or discharge
any monetary or non-monetary obligation, breaches of representations, warranties
or covenants, the occurrence of defaults, or otherwise, shall be due or owing,
or had or recoverable against or from, any past, present or future partner,
member, shareholder, manager, director, officer, employee, agent, or affiliate
of Owner (or any successor or assign thereof), except to the extent, if any,
that any of such parties or individuals become the Owner hereunder.
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AGREEMENT BETWEEN OWNER AND CONTRACTOR
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IN WITNESS WHEREOF, this Agreement is entered into as of the day and
year first written above and is executed in at least three (3) original copies,
one of which is to be delivered to Contractor, one to Architect for use in the
administration of the Contract, and the remainder to Owner.
OWNER: CONTRACTOR:
Premier Entertainment, L.L.C. ▇▇▇ ▇▇▇▇▇▇▇▇ Corp.
By: GAR, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------- Title: Chief Financial Officer
Title: Member
------------------------
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Page 51
EXHIBIT "A"
General Conditions of the Contract of
Construction, AIA Document A201, 1997 edition
AIA A201 GENERAL CONDITIONS TO BE ATTACHED
AGREEMENT BETWEEN OWNER AND CONTRACTOR
EXHIBIT "B"
Specifications
LIST OF SPECIFICATIONS TO BE ATTACHED
AGREEMENT BETWEEN OWNER AND CONTRACTOR
EXHIBIT "C"
Drawings
LIST OF DRAWINGS TO BE ATTACHED
AGREEMENT BETWEEN OWNER AND CONTRACTOR
EXHIBIT "D-1"
Specifications for the Hard Rock Cafe Shell
1. Contractor acknowledges the national market theme of rock `n roll music
and entertainment played and promoted in and through the "Hard Rock
Cafe" throughout the country and the world. Contractor further
acknowledges and agrees that the Contractor shall not attempt to
restrict or impede Hard Rock's use of the Premises in furtherance of
its rock `n roll music and entertainment theme, provided Hard Rock's
playing and promotion of this rock `n roll music and entertainment
theme complies with the applicable Laws and is not conducted in such a
way as to become a nuisance to the other Hard Rocks, taking into
consideration and allowing for the nature of and style of Hard Rock's
business.
2. Contractor shall provide 2 1/2" potable water supply in compliance with
the local jurisdiction's requirements or any other governing agency to
the Hard Rock Cafe leased premises. Contractor to verify that the
available water pressure is adequate to operate flush valve fixtures
with an anticipated load of 175 Fixture Units at 85 GPM.
3. Contractor shall provide a metered 4" natural gas supply within the
premises at a location coordinated with Hard Rock's design. All work
shall be in compliance with the local jurisdiction's requirements or
any other governing agency. The gas supply shall provide an anticipated
load of 3150 CFH at a pressure of 2 PSI.
4. Contractor to provide a 4" sanitary sewer line in compliance with the
local jurisdiction's requirements or any other governing agency.
Contractor shall rod and visually inspect all existing sewer lines for
damage prior to connection by Hard Rock.
5. Contractor to provide a grease interceptor sized as required by the
local jurisdiction or any other governing agency for the anticipated
load.
6. Contractor shall provide fire protection service to the Hard Rock Cafe
lease space. Service shall be sized in accordance with NFPA 13 and
Factory Mutual Standards for proper flow at required pressure to
accommodate total fire protection coverage of the Hard Rock Cafe leased
space. Hard Rock to make adjustments to the fire protection system as
required to coordinate with its design.
7. Contractor to provide all fire separations between the Hard Rock Cafe
and all adjacent areas as required by the local jurisdiction and any
other governing agency.
8. Contractor shall provide fire rated shafts, ductwork within shaft and
all fire rated assemblies up to the roof (including roof curbs and
flashing) or exterior in accordance with the local jurisdiction or any
other governing agency for the Hard Rock Cafe grease exhaust system,
make-up air system, dishwasher exhaust, HVAC system, and restroom
exhaust.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
9. Contractor shall provide new rooftop HVAC equipment (per Hard Rock's
specifications) and all required structural supports and ducting to the
Premises. Contractor shall provide sufficient roof or ancillary space
for Hard Rock's refrigeration equipment, exhaust fans and make-up air
units and shall provide screening for the equipment as may be required
by the local jurisdiction, development agreements or as needed to
satisfy design requirements.
10. Contractor shall provide to the premises a metered electrical service
sized at 2000 AMP 120v/208v 3 Phase 4/wire. The service may increase as
required by the calculated demand load of the Hard Rock Cafe.
11. Contractor shall provide a building that includes all exterior windows,
storefronts and doors and which is structurally sound and watertight
and complies with all of the requirements of this Exhibit "D" (the
"Shell of the Premises"). The building shall comply with the local
jurisdiction's requirements or any other governing agency for the
intended use. Contractor shall be responsible for constructing the
exterior skin, windows and skin of the building, with integrity against
water infiltration, leaks and seepage.
12. Contractor shall provide all shell demising walls in a paint ready
condition.
13. Contractor shall provide all acoustical attenuation between Hard Rock
demises.
14. Contractor shall have a structural engineer registered in the state in
which the project is located certify that the floor's structural system
is adequate to support a live load of 100 lbs. per square foot and an
additional dead load of 35 lbs. per square foot.
15. Contractor shall provide a lease area that is free from any hazardous
substances or materials. Contractor shall provide any and all
certificates that may be required by the local jurisdiction or any
other governing agency.
16. Contractor shall provide a fully accessible and adequately illuminated
route for the public into the Hard Rock Cafe leased space.
17. To the extent that the Project is located in a multi-Hard Rock or
multi-purpose development, Contractor shall, at its expense, include
Hard Rock Cafe signage in all public directories located within the
development. Contractor will permit, subject to reasonable approval,
the use of supplemental directional signage provided and installed by
Hard Rock Cafe.
18. Contractor shall provide access to all adjacent and remote spaces as
required for the completion of the Hard Rock Cafe Hard Rock build out.
19. Contractor shall provide sufficient space and accommodation, in
accordance with the requirements of the local jurisdiction or any other
governing agency, for the adequate and
AGREEMENT BETWEEN OWNER AND CONTRACTOR
2
proper access, handling, interim storage and delivery of all food and
merchandise and removal of all trash and waste generated by the Hard
Rock Cafe.
20. Contractor shall provide every available assistance in obtaining all
required local jurisdiction and any other governing agency approvals
necessary for the construction and operation of the Hard Rock Cafe.
21. Contractor shall cooperate with Owner in using diligent efforts to
obtain the local jurisdiction and any other government agency approvals
for all Hard Rock Cafe exterior signage including but not limited to
signs, awnings, flags, icons and marquees. Contractor shall provide
electrical service and all structural supports for the Hard Rock Cafe
signs. The signage will be supplied and installed by the Hard Rock
Cafe.
22. Contractor shall designate an area, adjacent to the Project, for
temporary construction trailer and material storage, receiving and
handling.
23. Contractor shall relocate any pre-existing utilities that conflict with
Hard Rock's planned improvements.
24. Contractor shall provide to the Hard Rock Cafe leased space, all HVAC
equipment, including power, chilled and hot water piping, and central
ducting from, a centralized unit as necessary to provide adequate
heating, cooling and ventilation as determined by Hard Rock during the
planning phase of the project, but in no event less than one ton of
HVAC capacity shall be supplied to the Hard Rock Cafe leased space for
each 120 gross square feet of the Hard Rock Cafe leased space. HVAC
supply shall be provided on a 24 hour per day 365 day per year basis.
*** End of EXHIBIT "D-1" ***
AGREEMENT BETWEEN OWNER AND CONTRACTOR
3
EXHIBIT "D-2"
Specifications for the Hard Rock Retail Store Shell
1. Contractor acknowledges the national market theme of rock `n roll music
and entertainment played and promoted in and through the "Hard Rock
Cafe" throughout the country and the world. Contractor further
acknowledges and agrees that the Contractor shall not attempt to
restrict or impede Hard Rock's use of the Premises in furtherance of
its rock `n roll music and entertainment theme, provided Hard Rock's
playing and promotion of this rock `n roll music and entertainment
theme complies with the applicable Laws and is not conducted in such a
way as to become a nuisance to the other Hard Rocks, taking into
consideration and allowing for the nature of and style of Hard Rock's
business.
2. Contractor shall provide glass store front window system and entry
doors.
3. Contractor shall provide Hard Rock Hotel Store staff access to Hotel
employee washrooms.
4. Contractor shall provide fire protection service to the Hard Rock Hotel
Store lease space. Service shall be sized in accordance with NFPA 13
and Factory Mutual Standards for proper flow at required pressure to
accommodate total fire protection coverage of the Hard Rock Store
leased space. Hard Rock to make adjustments to the fire protection
system as required to coordinate with its design.
5. Contractor to provide all fire separations between the Hard Rock Hotel
Store and all adjacent areas as required by the local jurisdiction and
any other governing agency.
6. Contractor shall provide fire rated shafts, ductwork within shaft and
all fire rated assemblies up to the roof or exterior in accordance with
the local jurisdiction or any other governing agency for the Hard Rock
Hotel Store.
7. Contractor shall provide all Heating, Ventilation and Air-Conditioning
(HVAC) for the space via dedicated units or from Hotel systems. The
HVAC system shall be designed to satisfy the Hard Rock Hotel Store
requirements. Hard Rock will provide all secondary distribution from
the main duct(s) provided by Contractor. HVAC control points shall be
provided to Hard Rock who will provide local thermostats and controls
for the branch system.
8. Contractor shall provide to the premises, as a minimum, an electrical
service at 200 AMP 120v/208v/3 Phase 4/wire. The service may increase
as required by the calculated demand load of the Hard Rock Hotel Store.
9. Contractor shall provide two (2) 1" conduits from the Hard Rock space
to the base building telephone equipment room. Contractor will ensure
that base building telephone
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
service contains sufficient capacity to provide no less than eight (8)
dedicated phone lines for Hard Rock Hotel Store usage.
10. To ensure music compatibility with the Hotel Lobby, Contractor shall
provide one 1" conduit and input feed from the Hotel's main A/V room.
Hard Rock will terminate the wire to its audio rack to allow for
connectivity with the Hotel audio system.
11. Contractor shall provide a building that is structurally sound and
watertight, that complies with the local jurisdiction's requirements or
any other governing agency for the intended use and complies with the
requirements of this Exhibit "C" (the "Shell of the Premises").
Contractor shall be responsible for constructing the exterior skin of
the building, with integrity against water infiltration, leaks and
seepage.
12. Contractor shall permanently seal all penetrations through the overhead
structure covering the Hard Rock Hotel Store Hard Rock space.
13. Contractor shall provide all shell demising walls in a paint ready
condition.
14. Contractor shall provide all acoustical attenuation between Hard Rock
demises.
15. Contractor shall have a structural engineer registered in the state in
which the project is located certify that the floor's structural system
is adequate to support a live load of 100 lbs. per square foot and an
additional dead load of 35 lbs. per square foot.
16. Contractor shall provide a flat and level concrete floor slab meeting a
minimum of: Slab on Grade - FF25 and FL25; Elevated Slab - FF25 and FL
requiring 80% of all elevation points fall within a envelope tolerance
of 3/4" or less.
17. Contractor shall provide a concrete floor slab with a hard trowel
finish suitable for the future application of concrete stain floor
finishes. Slab shall not be treated with any penetrating cure or seal
compound. All control and expansion joints shall be neatly cut with no
excessive spalling.
18. Contractor shall provide a lease area that is free from any hazardous
substances or materials. Contractor shall provide any and all
certificates that may be required by the local jurisdiction or any
other governing agency.
19. Contractor shall provide a fully accessible and adequately illuminated
route for the public into the Hard Rock Hotel Store leased space.
20. To the extent that the Project is located in a multi-Hard Rock
development, Contractor include, at its expense, Hard Rock Hotel Store
signage in all public directories located within the development and
will permit, subject to reasonable approval, the use of additional
supplemental directional signage provided and installed by Hard Rock.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
2
21. Contractor shall provide access to all adjacent and remote spaces as
required for the completion of the Hard Rock Hotel Store Hard Rock
build out.
22. Contractor shall provide sufficient space and accommodation, in
accordance with the requirements of the local jurisdiction or any other
governing agency, for the adequate and proper access, handling, interim
storage and delivery of all food and merchandise and removal of all
trash and waste generated by the Hard Rock Hotel Store.
23. Contractor shall provide every available assistance in obtaining all
required local jurisdiction and any other governing agency approvals
necessary for the construction and operation of the Hard Rock Hotel
Store.
24. Contractor shall cooperate with Owner in using diligent efforts to
obtain the local jurisdiction and any other government agency approvals
for all Hard Rock Hotel Store exterior signage including but not
limited to signs, awnings, flags, icons and marquees. Contractor shall
provide electrical service and all structural supports for the Hard
Rock Hotel Store signs. The signage will be supplied and installed by
Hard Rock.
25. Contractor shall designate an area, adjacent to the Project, for
temporary construction trailer and material storage, receiving and
handling.
26. Contractor shall route all Hotel systems and utilities to avoid
conflict with Hard Rock's improvements. Any utilities that conflict
with the retail improvements shall be relocated by Contractor.
27. Contractor shall provide all partition framing between adjacent areas
and shall finish the exterior side of the partition walls. Hard Rock,
as a part of its Hard Rock Improvement work, shall provide and install
all drywall and finishes to the interior side of the partition walls.
Contractor shall provide all sound attenuation and insulation materials
within the partition walls.
*** End of EXHIBIT "D-2" ***
AGREEMENT BETWEEN OWNER AND CONTRACTOR
3
EXHIBIT "E"
Project Schedule
PROJECT SCHEDULE TO BE ATTACHED
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
EXHIBIT "F"
Schedule of Values
SCHEDULE OF VALUES TO BE ATTACHED
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
EXHIBIT "G"
Contractor's Assumptions, Qualifications and Clarifications
to Guaranteed Maximum Price, and Schedule of Allowances
CONTRACTOR'S ASSUMPTIONS, CLARIFICATIONS AND QUALIFICATIONS
TO GUARANTEED MAXIMUM PRICE, AND SCHEDULE OF ALLOWANCES TO BE ATTACHED
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
EXHIBIT "H"
Schedule of Liquidated Damages for Late Completion
LIQUIDATED DAMAGES FOR LATE COMPLETION
(Page 1 of 2)
- For each calendar day that Contractor fails to achieve Substantial
Completion beyond the Substantial Completion Date set forth in the
Project Schedule commencing upon the first (1st) calendar day following
the Substantial Completion Date through and including the third (3rd)
calendar day following the Substantial Completion Date, the Contractor
shall not be obligated to pay to the Owner any liquidated damages.
- For each calendar day that Contractor fails to achieve Substantial
Completion beyond the Substantial Completion Date set forth in the
Project Schedule commencing upon the fourth (4th) calendar day
following the Substantial Completion Date through and including the
eleventh (11th) day following the Substantial Completion Date, the
Contractor shall be obligated to pay to the Owner, immediately upon
demand by Owner, the sum of Ten Thousand Dollars ($10,000.00) for each
such calendar day, not as a penalty, but as Liquidated Damages.
- For each calendar day that Contractor fails to achieve Substantial
Completion beyond the Substantial Completion Date set forth in the
Project Schedule commencing upon the twelfth (12th) calendar day
following the Substantial Completion Date through and including the
nineteenth (19th) day following the Substantial Completion Date, the
Contractor shall be obligated to pay to the Owner, immediately upon
demand by Owner, the sum of Twenty Five Thousand Dollars ($25,000.00)
for each such calendar day, not as a penalty, but as Liquidated
Damages.
- For each calendar day that Contractor fails to achieve Substantial
Completion beyond the Substantial Completion Date set forth in the
Project Schedule commencing upon the twentieth (20th) calendar day
following the Substantial Completion Date and continuing for each day
thereafter until Contractor shall have achieved Substantial Completion
of the Work, the Contractor shall be obligated to pay to the Owner,
immediately upon demand by Owner, the sum of Fifty Thousand Dollars
($50,000.00) for each such calendar day, not as a penalty, but as
Liquidated Damages.
- Provided, however, that the Contractor shall not be obligated to pay
Owner, on account of the failure of Contractor to achieve Substantial
Completion within three calendar days of the Substantial Completion
Date set forth in the Project Schedule, more than the aggregate sum of
One Million Five Hundred Thousand Dollars ($1,500,000.00).
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
EXHIBIT "H"
Schedule of Liquidated Damages for Late Completion
LIQUIDATED DAMAGES FOR LATE COMPLETION
(Continued, Page 2 of 2)
- Notwithstanding the foregoing, Contractor shall not be obligated to pay
to Owner, and Owner shall not be entitled to retain or recover from
Contractor, liquidated damages in the event (i) Contractor satisfies
all conditions to achieving Substantial Completion of the Work (as set
forth in Section 9.8.1 of the AIA 201 General Conditions) within the
three-day grace period following the Substantial Completion Date, other
than the condition that the value of all Punchlist items are less than
the threshold amount set forth in Section 9.8.1 of the A201 General
Conditions, and (ii) the Project is open for business to the public and
generating revenue for the Owner and the use and enjoyment of the
Project by employees, guests and patrons is not adversely affected or
impeded by any item on the Punchlist.
- Contractor's obligation to pay to Owner, and Owner's right to retain or
recover from Contractor liquidated damages, is subject to the
limitations provided in Section 4.6.2 of the Owner-Contractor
Agreement.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
2
EXHIBIT "I"
Schedule of Bonus for Early Completion
BONUS FOR EARLY COMPLETION
- For each calendar day that Contractor achieves Substantial Completion
prior to the Substantial Completion Date as set forth in the Project
Schedule commencing upon the first (1st) calendar day prior to the
Substantial Completion Date through and including the third (3rd)
calendar day prior to the Substantial Completion Date, the Contractor
shall not be entitled to any bonus for early completion.
- For each calendar day that Contractor achieves Substantial Completion
prior to the Substantial Completion Date as set forth in the Project
Schedule on and/or between the fourth (4th) calendar day prior to the
Substantial Completion Date through and including the eleventh (11th)
calendar day prior to the Substantial Completion Date, Owner agrees to
pay to Contractor Ten Thousand Dollars ($10,000) per calendar day as a
bonus for early completion.
- For each calendar day that Contractor achieves Substantial Completion
prior to the Substantial Completion Date set forth in the Project
Schedule on and/or between the twelfth (12th) calendar day prior to the
Substantial Completion Date through and including the nineteenth (19th)
calendar day prior to the Substantial Completion Date, Owner agrees to
pay to Contractor Twenty Five Thousand Dollars ($25,000) per calendar
day as a bonus for early completion.
- For each calendar day that Contractor achieves Substantial Completion
which is nineteen (19) calendar days or more prior to the Substantial
Completion Date set forth in the Project Schedule, Owner agrees to pay
to Contractor Fifty Thousand Dollars ($50,000) per calendar day as a
bonus for early completion.
- Provided, however, that Owner shall not be obligated to pay Contractor,
on account of achieving Substantial Completion prior to the Substantial
Completion Date set forth in the Project Schedule, more than the
aggregate sum of Eight Hundred Thousand Dollars ($800,000.00), and
further provided that Owner shall not be obligated to pay Contractor
any bonus for achieving Substantial Completion of the Work prior to the
Substantial Completion Date set forth in the Project Schedule unless
all of the conditions and requirements for early completion set forth
in the Contact Documents, including without limitation, all conditions
and requirements set forth in PARAGRAPH 4.7 and PARAGRAPH 4.8 of the
Standard Form of Agreement between Owner and Contractor, are satisfied
in all respects.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
EXHIBIT "J"
Form of Payment and Performance Bond
TO BE ATTACHED
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
EXHIBIT "K"
Rental Rates for Equipment Rented from Contractor
EQUIPMENT DESCRIPTION MONTHLY RENTAL RATE
----------------------------------------------------------------------------
HSP 8060 All Terrain Linkbelt Crane $ 6,750.00 per month
8042 Skytrack $ 2,800.00 per month
Street Sweeper $ 1,200.00 per month
Compactor $ 660.00 per month
Pontoon Boat $ 250.00 per month
Pick-Up Truck $ 720.00 per month
Total Station $ 495.00 per month
Level & Transit $ 179.00 per month
Desktop Computer $ 105.00 per month
Laptop Computer with Docking Station $ 186.00 per month
Heavy Use Printer $ 35.00 per month
Copying Machine $ 350.00 per month
Fax Machine $ 40.00 per month
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
EXHIBIT "L"
Description of Preconstruction Phase Costs
Types of Preconstruction Costs
- Design Services
- Preconstruction Labor and Labor Burden
- Preconstruction Meetings / Conference Calls
- Plan Reproduction
- Postage and Shipping
- Site Investigation
- Survey
- Travel Expenses
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
EXHIBIT "M"
Mississippi Tax Related Procedures
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
EXHIBIT "N"
Form of Barge Subcontract with Corn Island Shipyard, Inc.
AGREEMENT BETWEEN OWNER AND CONTRACTOR
1
Exhibit 10.1
FIRST AMENDMENT TO
AGREEMENT BETWEEN OWNER AND CONTRACTOR
THIS FIRST AMENDMENT TO AGREEMENT BETWEEN OWNER AND CONTRACTOR (this
"AMENDMENT") is made as of the 22nd day of January, 2004 by and among Premier
Entertainment Biloxi, LLC, a Delaware limited liability company ("OWNER") and
▇▇▇ ▇▇▇▇▇▇▇▇ Corp. ("CONTRACTOR").
WITNESSETH
WHEREAS, Premier Entertainment, L.L.C., a Mississippi limited liability
company, as owner, and Contractor entered into that certain "Agreement Between
Owner and Contractor where the basis of payment is the Cost of Work Plus a Fee
Not to Exceed a Guaranteed Maximum Price" made and entered into as of December
24, 2003 relating to the construction of a Hard Rock Hotel and Casino in Biloxi,
Mississippi ( the "GMP CONTRACT");
WHEREAS, subsequent to the execution and delivery of the GMP Contract,
Premier Entertainment, L.L.C., a Mississippi limited liability company, was
merged with and into Owner;
WHEREAS, the Owner and Contractor desire to amend the GMP Contract as
herein provided.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned hereby
agree as follows:
1. RECITALS; CAPITALIZED TERMS. The foregoing recitals are
acknowledged to be accurate and are incorporated herein. Capitalized terms used
in this Amendment but not otherwise defined herein shall have the meanings
ascribed to such terms in the GMP Contract.
2. DISBURSEMENT AGREEMENT. Paragraph 2.3 of the GMP Contract is amended
by substituting the name "U.S. Bank National Association, a national banking
association" in place of the name "Standard Federal - Corporate and
Institutional Trust, a division of LaSalle Bank National Association" in each
place where such reference occurs in Paragraph 2.3. Accordingly, U.S. Bank
National Association, a national banking association (together with its
successors and assigns from time to time), shall be defined to be the
Disbursement Agent and the Trustee, respectively. The date "January 14, 2004" is
inserted in the blank space in Paragraph 2.3 for the ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ draft of
the Disbursement Agreement.
3. LIEN WAIVERS FOR DIRECT PURCHASE ITEMS.
a. The amount "$40,000" is hereby substituted in place of the
amount "$50,000" in Paragraph 3.4 of Exhibit M and Paragraph 3.1 of Section C
("Direct Purchases by OWNER of Certain Items of Component Materials and
NonComponent Materials") to Exhibit M attached to the GMP Contract.
b. Contractor represents to Owner that its best estimate, based
upon currently-available information, of the number of contracts for Direct
Purchase Items with any
single supplier or contractor with a contract price of less than $40,000 will be
approximately twenty-five (25) contracts, and the aggregate amount of all such
contracts will be approximately $900,000.00. Contractor agrees that whenever the
information concerning the actual number and amount of such contracts (i.e.,
contracts for Direct Purchase Items with any single supplier or contractor with
a contract price of less than $40,000) is available, Contractor shall provide
such particular contract information to Owner, to allow Owner to certify such
contract information to First American Title Insurance Company and Owner.
4. NO OTHER CHANGES. Except as herein expressly supplemented,
changed, modified or amended, all of the terms, provisions and conditions of the
Agreement shall continue to remain in full force and effect.
5. CONTROLLING DOCUMENT. In the event of any conflict or
inconsistency between the terms and provisions of this Amendment and the
Agreement, the terms and provisions of this Amendment shall prevail and govern.
6. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
7. EXECUTION IN COUNTERPARTS. The Amendment may be signed in
multiple counterparts, each of which, when taken together, will constitute one
and the same instrument.
8. FACSIMILE DELIVERY. The parties hereto agree that the use of
facsimile signatures for the negotiation and execution of this Amendment shall
be legal and binding and shall have the same full force and effect as if
originally signed.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK;
SIGNATURES APPEAR ON FOLLOWING PAGE
C-2
IN WITNESS WHEREOF, the undersigned have hereto set their hands and
seals on this First Amendment to Agreement between Owner and Contractor as of
the day and year first above written.
OWNER: CONTRACTOR:
Premier Entertainment Biloxi, LLC, ▇▇▇ ▇▇▇▇▇▇▇▇ Corp.
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------- ------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------- ------------------------------
Title: President and Chief Operating Title: Chief Financial Officer
Officer ------------------------------
---------------------------------
C-3