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EXHIBIT 10.35
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONTRACTOR
where the basis of payment is the
COST OF THE WORK PLUS A FEE
with or without a Guaranteed Maximum Price
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.
The 1987 Edition of AIA Document A201, General Conditions of the Contract for
Construction, is adopted in this document by reference. Do not use with other
general conditions unless this document is modified.
This document has been approved and endorsed by The Associated General
Contractors of America.
AGREEMENT
made as of the ninth day of February in the year of Nineteen Hundred and
Ninety-Nine
BETWEEN the Owner: COAST RESORTS, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and the Contractor: ▇.▇. ▇▇▇▇▇▇▇ CONSTRUCTION CO., INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
the Project is: BUFFET RESTAURANT - TENANT IMPROVEMENT
The Orleans Hotel & Casino
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
the Architect is: ▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Owner and Contractor agree as set forth below.
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ARTICLE 1
THE CONTRACT DOCUMENTS
1. The Contract Documents consist of this Agreement, Conditions of the
Contract (General, Supplementary, and other Conditions), Drawings,
Specifications, addenda issued prior to execution of this Agreement, other
documents listed in this Agreement and Modifications issued after execution
of this Agreement; these form the Contract, and are as fully a part of the
Contract as if attached to this Agreement or repeated herein. The Contract
represents the entire and integrated agreement between the parties hereto
and supersedes prior negotiations, representations or agreements, either
written or oral. An enumeration of the Contract Documents, other than
Modifications, appears in Article 16. If anything in the other Contract
Documents is inconsistent with this Agreement, this Agreement shall govern.
ARTICLE 2
THE WORK OF THIS CONTRACT
2.1 The Contractor shall execute the entire Work described in the Contract
Documents, except to the extent specifically indicated in the Contract
Documents to be the responsibility of others, or as follows:
See Attachment "A"
ARTICLE 3
RELATIONSHIP OF THE PARTIES
3.1 The Contractor accepts the relationship of trust and confidence established
by this Agreement and covenants with the Owner to cooperate with the
Architect and utilize the Contractor's best skill, efforts and judgment in
furthering the interests of the Owner; to furnish efficient business
administration and supervision; to make best efforts to furnish at all
times an adequate supply of workers and materials; and to perform the Work
in the best way and most expeditious and economical manner consistent with
the interests of the Owner. The Owner agrees to exercise best efforts to
enable the Contractor to perform the Work in the best way and most
expeditious manner by furnishing and approving in a timely way information
required by the Contractor and making payments to the Contractor in
accordance with requirements of the Contract Documents.
ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of commencement is the date from which the Contract Time of
Subparagraph 4.2 is measured; it shall be the date of this Agreement, as
first written above, unless a different date is stated below or provision
is made for the date to be fixed in a notice to proceed issued by the
Owner on January 2, 1989.
4.2 The Contractor shall achieve Final Completion of the entire Work not later
than: May 14, 1999 if required by the Owner, the Contract Time will be
negotiated with and approved by the Contractor, subject to adjustments of
this Contract Time as provided in the Contract Documents.
THERE ARE NO PROVISIONS FOR LIQUIDATED DAMAGES IN THIS CONTRACT.
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ARTICLE 5
CONTRACT SUM
5.1 The Owner shall pay the Contractor in current funds for the
Contractor's performance of the Contract the Contract Sum consisting
of the Cost of the Work as defined in Article 7 and the Contractor's
Fee determined as follows: Per Attachment "B"
The Contractor's fee shall be 7% of the cost of the work. The
Contractor's fee shall be adjusted for changes in the work at 7% of
the cost of the changes.
5.2 GUARANTEED MAXIMUM PRICE
5.2.1 The sum of the Cost of the Work and the Contractor's Fee is
guaranteed by the Contractor not to exceed: See Attachment "B"
subject to additions and deductions by Change Order as provided in
the Contract Documents. Such maximum sum is referred to in the
Contract Documents as the Guaranteed Maximum Price. Costs which would
cause the Guaranteed Maximum Price to be exceeded shall be paid by
the Contractor without reimbursement by the Owner.
5.2.2 The Guaranteed Maximum Price is based upon the following alternates,
if any, which are described in the Contract Documents and are hereby
accepted by the Owner:
5.2.3 The amounts agreed to for unit prices, if any, are as follows:
NONE
ARTICLE 6
CHANGES IN THE WORK
6.1 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
6.1.1 Adjustments to the Guaranteed Maximum Price on account of changes in
the Work may be determined by any of the methods listed in
Subparagraph 7.3.3 of the General Conditions.
6.1.2 In calculating adjustments to subcontracts (except those awarded with
the Owner's prior consent on the basis of cost plus a fee), the terms
"cost" and "fee" as used in clause 7.3.3.3 of the General Conditions
and the terms "costs" and "a reasonable allowance for overhead and
profit" as used in Subparagraph 7.3.6 of the General Conditions shall
have the meanings assigned to them in the General Conditions and
shall not be modified by Articles 5, 7 and 8 of this Agreement.
Adjustments to subcontracts awarded with the Owner's prior consent on
the basis of cost plus a fee shall be calculated in accordance with
the terms of those subcontracts.
6.1.3 In calculating adjustments to this Contract, the terms "cost" and
"costs" as used in the above-referenced provisions of the General
Conditions shall mean the Cost of the Work as defined in
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Article 7 of this Agreement and the terms "fee" and "a reasonable
allowance for overhead and profit" shall mean the Contractor's Fee as
defined in Paragraph 5.1 of this Agreement.
6.3 ALL CONTRACTS
6.3.1 If no specific provision is made in Paragraph 5.1 for adjustment of
the Contractor's Fee in the case of changes in the Work, or if the
extent of such changes is such, in the aggregate, that application of
the adjustment provisions of Paragraph 5.1 will cause substantial
inequity to the Owner or Contractor, the Contractor's Fee shall be
equitably adjusted on the basis of the Fee established for the
original Work.
ARTICLE 7
COSTS TO BE REIMBURSED
7.1 The term Cost of the Work shall mean costs reasonably and necessarily
incurred by the Contractor in the proper performance of the Work. Such
costs shall be at rates not higher than the standard paid at the place
of the Project except with prior consent of the Owner. The Cost of the
Work shall include only the items set forth in this Article 7.
7.1.1 LABOR COSTS
7.1.1.1 Reasonable wages of construction workers directly employed by the
Contractor to perform the construction of the Work at the site or,
with the Owner's agreement, at off-site workshops.
7.1.1.2 Reasonable wages or salaries of the Contractor's supervisory and
administrative personnel when stationed at the site with the Owner's
agreement. (if it is intended that the wages or salaries of certain
personnel stationed at the Contractor's principal or other offices
shall be included in the Cost of the Work, identify in Article 14
the personnel to be included and whether for all or only part of their
time.)
7.1.1.3 Reasonable wages and salaries of the Contractor's supervisory or
administrative personnel engaged, at factories, workshops or on the
road, in expediting the production or transportation of materials or
equipment required of the Work, but only for that portion of their
time required of the Work.
7.1.1.4 Costs paid or incurred by the Contractor for taxes, insurance,
contributions, assessments and benefits required by law or collective
bargaining agreements and, for personnel not covered by such
agreements, customary benefits such as sick leave, medical and health
benefits, holidays, vacations and pension, provided such costs are
based on wages and salaries included in the Cost of the Work under
Clauses 7.1.1.1 through 7.1.1.3.
7.1.2 SUBCONTRACT COSTS
Payments made by the Contractor to Subcontractors in accordance with
the requirements of the subcontracts.
7.1.3 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION
7.1.3.1 Costs, including transportation, of materials and equipment
incorporated or to be incorporated in the completed construction.
7.1.3.2 Costs of materials described in the preceding Clause 7.1.3.1 in excess
of those actually installed but required to provide reasonable
allowance for waste and for spoilage. Unused excess materials, if any,
shall be handed over to the Owner at the completion of the Work or, at
the
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Owner's option, shall be sold by the Contractor; amounts realized, if
any, from such sales shall be credited to the Owner as a deduction
from the Cost of the Work.
7.1.4 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND
RELATED ITEMS
7.1.4.1 Reasonable costs, including transportation, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities,
machinery, equipment, and hand tools not customarily owned by the
construction workers, which are provided by the Contractor at the site
and fully consumed in the performance of the Work; and cost less
salvage value on such items if not fully consumed, whether sold to
others or retained by the Contractor. Cost for items previously used
by the Contractor shall mean fair market value.
7.1.4.2 Reasonable rental charges for temporary facilities, machinery,
equipment, and hand tools not customarily owned by the construction
workers, which are provided by the Contractor at the site, whether
rented from the Contractor or others, and costs of transportation,
installation, minor repairs and replacements, dismantling and removal
thereof. Rates and quantities of equipment rented shall be subject to
the Owner's prior approval.
7.1.4.3 Costs of removal of debris from the site.
7.1.4.4 Costs of long-distance telephone calls, postage and parcel delivery
charges, telephone service at the site incurred as a direct result of
the contractor's work on the project.
7.1.4.5 That portion of the reasonable travel and subsistence expenses of the
Contractor's personnel incurred while traveling in discharge of duties
connected with the Work.
7.1.5 MISCELLANEOUS COSTS
7.1.5.1 That portion directly attributable to this Contract of premiums for
insurance and bonds.
7.1.5.2 Sales, use or similar taxes imposed by a governmental authority which
are related to the Work and for which the Contractor is liable.
7.1.5.3 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the Contractor is required by the
Contract documents to pay.
7.1.5.4 Fees of testing laboratories for tests required by the Contract
Documents, except those related to defective or nonconforming Work for
which reimbursement is excluded by Subparagraph 13.5.3 of the General
Conditions or other provisions of the Contract Documents and which do
not fall within the scope of Subparagraphs 7.2.2 through 7.2.4 below.
7.1.5.5 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of
defending suits or claims for infringement of patent rights arising
from such requirement by the Contract Documents; payments made in
accordance with legal judgments against the Contractor resulting from
such suits or claims and payments of settlements made with the Owner's
consent; provided, however, that such costs of legal defenses,
judgments and settlements shall not be included in the calculation of
the Contractor's Fee or of a Guaranteed Maximum Price, if any, and
provided that such royalties, fees and costs are not executed by the
last sentence of Subparagraph 3.17.1 of the General Conditions or
other provisions of the Contract Documents.
7.1.5.6 Deposits lost for causes other than the Contractor's fault or
negligence.
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7.1.5.7 Certain general condition items specified by the owner requiring
little coordination by the contractor, such as bills, portable toilet
facilities, office supplies, etc. shall be reimbursed, but without
fee.
7.1.6 OTHER COSTS
7.1.6.1 Other costs incurred in the performance of the Work if and to the
extent approved in advance in writing by the Owner.
7.2 EMERGENCIES: REPAIRS TO DAMAGED, DEFECTIVE OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Paragraph
7.1 which are incurred by the Contractor:
7.2.1 In taking action to prevent threatened damage, injury or loss in case
of an emergency affecting the safety of persons and property, as
provided in Paragraph 10.3 of the General Conditions.
7.2.2. In repairing or correcting Work damaged or improperly executed by
construction workers in the employ of the Contractor, provided such
damage or improper execution did not result from the fault or
negligence of the Contractor or the Contractor's foremen, engineers or
superintendents, or other supervisory, administrative or managerial
personnel of the Contractor.
7.2.3 In repairing damaged work other than that described in Subparagraph
7.2.2, provided such damage did not result from the fault or
negligence of the Contractor or the Contractor's personnel, and only
to the extent that the cost of such repairs is not recoverable by the
Contractor from others and the Contractor is not compensated therefor
by insurance or otherwise.
7.2.4 In correcting defective or nonconforming Work performed or supplied by
a Subcontractor or material supplier and not corrected by them,
provided such defective or nonconforming Work did not result from the
fault or neglect of the Contractor or the Contractor's personnel
adequately to supervise and direct the Work of the Subcontractor or
material supplier, and only to the extent that the cost of correcting
the defective or nonconforming Work is not recoverable by the
Contractor from the Subcontractor or material supplier.
ARTICLE 8
COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include:
8.1.1 Salaries and other compensation of the Contractor's personnel
stationed at the Contractor's principal office or offices other than
the site office, except as specifically provided in Clauses 7.1.1.2
and 7.1.1.3 or as may be provided in Article 14.
8.1.2 Expenses of the Contractor's principal office and offices other than
the site office.
8.1.3 Overhead and general expenses, except as may be expressly included in
Article 7.
8.1.4 The Contractor's capital expenses, including interest on the
Contractor's capital employed for the Work.
8.1.5 Rental costs of machinery equipment, except as specifically provided
in Clause 7.1.4.2.
8.1.6 Except as provided in Subparagraphs 7.2.2 through 7.2.4 and Paragraph
13.5 of this Agreement, costs due to the fault or negligence of the
Contractor, Subcontractors, anyone directly or indirectly employed by
any of them, or for whose acts any of them may be liable, including
but not limited to
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costs for the correction of damaged, defective or nonconforming Work,
disposal and replacement of materials and equipment incorrectly
ordered or supplied, and making good damage to property not forming
part of the Work.
8.1.7 Any cost not specifically and expressly described in Article 7.
8.1.8 Costs which would cause the Guaranteed Maximum Price, if any, to be
exceeded.
8.1.9 Any claims for impact or escalation that were not immediately brought
to the attention of the owner during the course of the project, and
approved by the owner.
ARTICLE 9
DISCOUNTS, REBATES AND REFUNDS
9.1 Cash discounts obtained on payments made by the contractor shall
accrue to the Owner if (1) before making the payment, the Contractor
included them in an Application for Payment and received payment
therefor from the Owner, or (2) the Owner has deposited funds with the
Contractor with which to make payments; otherwise, cash discounts
shall accrue to the Contractor. Trade discounts, rebates, refunds and
amounts received from sales of surplus materials and equipment shall
accrue to the Owner, and the Contractor shall make provisions so that
they can be secured.
9.2 Amounts which accrue to the Owner in accordance with the provisions
of Paragraph 9.1 shall be credited to the Owner as a deduction from
the Cost of the Work.
ARTICLE 10
SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor does not customarily
perform with the Contractor's own personnel shall be performed under
subcontracts or by other appropriate agreements with the Contractor.
The Contractor shall obtain bids from Subcontractors and from
suppliers of materials or equipment fabricated especially for the Work
and shall deliver such bids to the Architect. The Owner will then
determine, with the advice of the Contractor and subject to the
reasonable objection of the Architect, which bids will be accepted.
The Owner may designate specific persons or entities from whom the
Contractor shall obtain bids; however, if a Guaranteed Maximum Price
has been established, the Owner may not prohibit the Contractor from
obtaining bids from others. The Contractor shall not be required to
contract with anyone to whom the Contractor has reasonable objection.
10.3 Subcontracts or other agreements shall conform to the payment
provisions of Paragraphs 12.7 and 12.8, and shall not be awarded on
the basis of cost plus a fee without the prior consent of the Owner.
ARTICLE 11
ACCOUNTING RECORDS
11.1 The Contractor shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under
this Contract; the accounting and control systems shall be
satisfactory to the Owner. The Owner and the Owner's accountants shall
be afforded access to the Contractor's records, books, correspondence,
instructions, drawings, receipts, subcontracts, purchase orders,
vouchers, memoranda and other data relating to this Contract, and the
Contractor shall preserve these for a period of three years after
final payment, or for such longer period as may be required by law.
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ARTICLE 12
PROGRESS PAYMENTS
12.1 Based upon Applications for Payment submitted to the Architect by the
Contractor and Certificates for Payment issued by the Architect, the
Owner shall make progress payments on account of the Contract Sum to
the Contractor as provided below and elsewhere in the Contract
Documents.
12.2 The period covered by each Application for Payment shall be one
calendar month ending on the last day of the month, or as follows:
12.3 Provided an Application of Payment is received by the Architect not
later than the FIFTEENTH (15th) day of a month, the Owner shall make
payment to the Contractor not later than the THIRTIETH (30th) day of
the SAME month. If an Application for Payment is received by the
Architect after the application date fixed above, payment shall be
made by the Owner not later than FIFTEEN (15) days after the
Architect receives the Application for Payment.
12.4 With each Application for Payment the Contractor shall submit
payrolls, ▇▇▇▇▇ cash accounts, receipted invoices or invoices with
check vouchers attached, and any other evidence required by the Owner
or Architect to demonstrate that cash disbursements already made by
the Contractor on account of the Cost of the Work equal or exceed (1)
progress payments already received by the Contractor; less (2) that
portion of those payments attributable to the Contractor's Fee; plus
(3) payrolls for the period covered by the present Application for
Payment; plus (4) retainage provided in Subparagraph 12.5.4, if any,
applicable to prior progress payments.
12.5 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
12.5.1 Each Application for Payment shall be based upon the most recent
schedule of values submitted by the Contractor in accordance with the
Contract Documents. The schedule of values shall allocate the entire
Guaranteed Maximum Price among the various portions of the Work,
except that the Contractor's Fee shall be shown as a single separate
item. The schedule of values shall be prepared in such form and
supported by such data to substantiate its accuracy as the Architect
may require. This schedule, unless objected to by the Architect,
shall be used as a basis for reviewing the Contractor's Applications
for Payment.
12.5.2 Applications for Payment shall show the percentage completion of each
portion of the Work at the end of the period covered by the
Application for Payment. The percentage 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 which has actually been incurred by the Contractor on
account of that portion of the Work for which the Contractor has made
or intends to make actual payment prior to the next Application for
Payment by (b) the share of the Guaranteed Maximum Price allocated to
that portion of the Work in the schedule of values.
12.5.3 Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
12.5.3.1 Take that portion of the Guaranteed Maximum Price properly
allocable to the completed Work as determined by multiplying the
percentage completion of each portion of the Work by the share of
the Guaranteed Maximum Price allocated to that portion of the Work
in the schedule of values.
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12.5.3.2 Add that portion of the Guaranteed Maximum Price properly allocable to
materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work or, if approved in advance by the
Owner, suitably stored off the site at a location agreed upon in
writing.
12.5.3.3 Add the Contractor's Fee, less retainage of ZERO PERCENT (0%). The
Contractor's Fee shall be computed upon the Cost of the Work described
in the two preceding Clauses at the rate stated in paragraph 5.1 or,
if the Contractor's Fee is stated as a fixed sum in that Paragraph,
shall be an amount which bears the same ratio to that fixed-sum Fee as
the Cost of the Work in the two preceding Clauses bears to a
reasonable estimate of the probable Cost of the Work upon its
completion.
12.5.3.4 Subtract the aggregate of previous payments made by the Owner.
12.5.3.5 Subtract the shortfall, if any, indicated by the Contractor in the
documentation required by Paragraph 12.4 to substantiate prior
Applications for Payment, or resulting from errors subsequently
discovered by the Owner's accountants in such documentation.
12.5.3.6 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment as provided in Paragraph 9.5 of
the General Conditions.
12.5.4 Additional retainage, if any shall be as follows:
N/A
12.7 Except with the Owner's prior approval, payments to Subcontractors
included in the Contractor's Applications for Payment shall not exceed
an amount for each Subcontractor calculated as follows:
12.7.1 Take that portion of the Subcontract Sum properly allocable to
completed Work as determined by multiplying the percentage completion
of each portion of the Subcontractor's Work by the share of the total
Subcontract Sum allocated to that portion in the Subcontractor's
schedule of values, less retainage of TEN PERCENT (10%). Pending final
determination of amounts to be paid to the Subcontractor for changes
in the Work, amounts not in dispute may be included as provided in
Subparagraph 7.3.7 of the General Conditions even though the
Subcontract Sum has not yet been adjusted by Change Order.
12.7.2 Add that portion of the Subcontract Sum properly allocable to
materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work or, if approved in advance by the
Owner, suitably stored off the site at a location agreed upon in
writing, less retainage of TEN PERCENT (10%).
12.7.3 Subtract the aggregate of previous payments made by the Contractor to
the Subcontractor.
12.7.4 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment by the Owner to the Contractor for
reasons which are the fault of the Subcontractor.
12.7.5 Add, upon Substantial Completion of the entire Work of the Contractor,
a sum sufficient to increase the total payments to the Subcontractor
to ONE HUNDRED PERCENT (100%) of the Subcontract Sum, less amounts, if
any, for incomplete Work and unsettled claims; and, if final
completion of the entire Work is thereafter materially delayed through
no fault of the Subcontractor, add any additional amounts payable on
account of Work of the Subcontractor in accordance with Subparagraph
9.10.3 of the General Conditions. The Subcontract Sum is the total
amount stipulated in the subcontract to be paid by the Contractor to
the Subcontractor for the Subcontractor's performance of the
subcontract.
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12.7.6 WHEN THE WORK IS 50% COMPLETE, AS A PERCENTAGE OF THE BILLING TO
GUARANTEED MAXIMUM PRICE, THE OWNER, AT HIS DISCRETION, MAY REDUCE
SUBCONTRACTOR RETAINAGE TO 5% OF THE SUBCONTRACT AMOUNT.
12.8 Except with the Owner's prior approval, the Contractor shall not make
advance payments to suppliers for materials or equipment which have
not been delivered and stored at the site.
12.9 In taking action on the Contractor's Applications for Payment, the
Architect shall be entitled to rely on the accuracy and completeness
of the information furnished by the Contractor and shall not be deemed
to represent that the Architect has made a detailed examination, audit
or arithmetic verification of the documentation submitted in
accordance with Paragraph 12.4 or other supporting data; that the
Architect has made exhaustive or continuous on-site inspections or
that the Architect has made examinations to ascertain how or for what
purposes the Contractor has used amounts previously paid on account of
the Contract. Such examinations, audits and verifications, if required
by the Owner, will be performed by the Owner's accountants acting in
the sole interest of the Owner.
ARTICLE 13
FINAL PAYMENT
13.1 Final payment shall be made by the Owner to the Contractor when (1)
the Contract has been fully performed by the Contractor except for the
Contractor's responsibility to correct defective or nonconforming
Work, as provided in Subparagraph 12.2.2 of the General Conditions,
and to satisfy other requirements, if any, which necessarily survive
final payment; (2) a final Application for Payment and a final
accounting for the Cost of the Work have been submitted by the
Contractor and reviewed by the Owner's representative and accountants;
and (3) a final Certificate for Payment has then been issued by the
Architect; such final payment shall be made by the Owner not more than
30 days after issuance of the Architect's final Certificate for
Payment, or as follows:
13.2 The amount of the final payment shall be calculated as follows:
13.2.1 Take the sum of the Cost of the Work substantiated by the Contractor's
final accounting and the Contractor's Fee; but not more than the
Guaranteed Maximum Price, if any.
13.2.2 Subtract amounts, if any, for which the Architect withholds, in whole
or in part, a final Certificate for Payment as provided in
Subparagraph 9.5.1 of the General Conditions or other provisions of
the Contract Documents.
13.2.3 Subtract the aggregate of previous payments made by the Owner. If the
aggregate of previous payments made by the Owner exceeds the amount
due the Contractor, the Contractor shall reimburse the difference to
the Owner.
13.3 The Owner's representatives and accountants will review and report in
writing on the Contractor's final accounting within 30 days after
delivery of the final accounting to the Architect by the Contractor.
Based upon such Cost of the Work as the Owner's accountants report to
be substantiated by the Contractor's final accounting, and provided
the other conditions of Paragraph 13.1 have been met, the Architect
will, within seven days after receipt of the written report of the
Owner's accountants, either issue to the Owner a final Certificate for
Payment with a copy to the Contractor, or notify the Contractor and
Owner in writing of the Architect's reasons for withholding a
certificate as provided in Subparagraph 9.5.1 of the General
Conditions. The time periods stated in this Paragraph 13.3 supersede
those stated in Subparagraph 9.4.1 of the General Conditions.
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13.4 If the Owner's accountants report the Cost of the Work as
substantiated by the Contractor's final accounting to be less than
claimed by the Contractor, the Contractor shall be entitled to demand
arbitration of the disputed amount without a further decision of the
Architect. Such demand for arbitration shall be made by the
Contractor within 30 days after the Contractor's receipt of a copy of
the Architect's final Certificate for Payment; failure to demand
arbitration within this 30-day period shall result in the
substantiated amount reported by the Owner's accountants becoming
binding on the Contractor. Pending a final resolution by arbitration,
the Owner shall pay the Contractor the amount certified in the
Architect's final Certificate for Payment.
13.5 If, subsequent to final payment and at the Owner's request, the
Contractor incurs costs described in Article 7 and not excluded by
Article 8 to correct defective or nonconforming Work, the Owner shall
reimburse the Contractor such costs and the Contractor's Fee
applicable thereto on the same basis as if such costs had been
incurred prior to final payment, but not in excess of the Guaranteed
Maximum Price, if any. If the Contractor has participated in savings
as provided in Paragraph 5.2, the amount of such savings shall be
recalculated and appropriate credit given to the Owner in determining
the net amount to be paid by the Owner to the Contractor.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 Where reference is made in this Agreement to a provision of the
General Conditions or another Contract Document, the reference refers
to that provision as amended or supplemented by other provisions of
the Contract Documents.
14.2 Payments due and unpaid under the Contract shall bear interest from
the date payment is due at the rate stated below, or in the absence
thereof, at the legal rate prevailing from time to time at the place
where the Project is located.
▇▇▇▇▇ FARGO BANK, LAS VEGAS, NV PRIME RATE
ARTICLE 15
TERMINATION OR SUSPENSION
15.1 The Contract may be terminated by the Contractor as provided in
Article 14 of the General Conditions; however, the amount to be paid
to the Contractor under Subparagraph 14.1.2 of the General Conditions
shall not exceed the amount the Contractor would be entitled to
receive under Paragraph 15.3 below.
15.2 If a Guaranteed Maximum Price is established in Article 5, the
Contract may be terminated by the Owner for cause as provided in
Article 14 of the General Conditions; however, the amount, if any, to
be paid to the Contractor under Subparagraph 14.2.4 of the General
Conditions shall not cause the Guaranteed Maximum Price to be
exceeded, nor shall it exceed the amount the Contractor would be
entitled to receive under Paragraph 15.3 below.
15.3 If no Guaranteed Maximum Price is established in Article 5, the
Contract may be terminated by the Owner for cause as provided in
Article 14 of the General Conditions; however, the Owner shall then
pay the Contractor an amount calculated as follows:
15.3.1 Take the Cost of the Work incurred by the Contractor to the date of
termination.
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15.3.2 Add to the Contractor's Fee computed upon the Cost of the Work to the
date of termination at the rate stated in Paragraph 5.1 or, if the
Contractor's Fee is stated as a fixed sum in that Paragraph, an
amount which bears the same ratio to that fixed-sum Fee as the Cost
of the Work at the time of termination bears to a reasonable estimate
of the probable Cost of the Work upon its completion.
15.3.3 Subtract the aggregate of previous payments made by the Owner. 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 which the Owner elects to retain and which is
not otherwise included in the Cost of the Work under Subparagraph
15.3.1. To the extent that the Owner elects to take legal assignment
of subcontracts and purchase orders (including rental agreements),
the Contractor shall, as a condition of receiving the payments
referred to in this Article 15, 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.
15.4 The Work may be suspended by the Owner as provided in Article 14 of
the General Conditions; in such case, the Guaranteed Maximum Price,
if any, shall be increased as provided in Subparagraph 14.3.2 of the
General Conditions except that the term "cost of performance of the
Contract" in that Subparagraph shall be understood to mean the Cost
of the Work and the term "profit" shall be understood to mean the
Contractor's Fee as described in Paragraphs 5.1 and 6.3 of this
Agreement.
ARTICLE 16
ENUMERATION OF CONTRACT DOCUMENTS
16.1 The Contract Documents, except for Modifications issued after
execution of this Agreement, are enumerated as follows:
16.1.1 The Agreement is this executed Standard Form of Agreement Between
Owner and Contractor, 1987 Edition, as hereby modified.
16.1.2 The General Conditions are the General Conditions of the Contract for
Construction, AIA Document A201, 1987 Edition.
16.1.3 The Supplementary and other Conditions of the Contract are those
contained as follows in the Project Manuals.
SEE ATTACHMENT "C"
16.1.4 The Specifications are those contained in the Project Manual dated as
in Paragraph 16.1.3, and are as follows:
OTHER THAN THE SPECIFICATIONS INCORPORATED INTO THE DRAWINGS, NO SEPARATE
SPECIFICATIONS WERE ISSUED.
16.1.5 The Drawings are as follows:
SEE ATTACHMENT "D"
16.1.6 The addenda, if any, are as follows:
None
Portions of Addenda relating to bidding requirements are not part of
the Contract Documents unless the bidding requirements are also
enumerated in this Article 16.
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16.1.7 Other Documents, if any, forming part of the Contract Documents are
as follows:
GENERAL CONDITIONS OF THE CONTRACT ARE MODIFIED AS FOLLOWS:
1. ARTICLE 4 -- ADMINISTRATION OF THE CONTRACT
THE OWNER SHALL PROVIDE ADMINISTRATION OF THE CONTRACT.
This agreement is entered into as of the day and year first written above and is
executed in at least three original copies of which one is to be delivered to
the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
OWNER CONTRACTOR
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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(Signature) (Signature)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, C.E.O. ▇▇▇▇ ▇▇▇▇▇▇▇, PRESIDENT
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(Printed name and title) (Printed name and title)
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ATTACHMENT "A"
THE ORLEANS HOTEL & CASINO - BUFFET EXPANSION
LIST OF EXCLUSIONS
January 4, 1999
1. All FF&E items.
2. All carpet.
3. All kitchen equipment, including installation.
4. All sound systems.
5. All surveillance system.
6. All telephone/communication systems.
7. All gaming equipment.
8. All POS systems.
9. All risk insurance.
10. All misc. signs and neon lighting.
11. All special/architectural lighting.
12. All UPS systems.
13. All blueprinting.
14. All design.
15. Any item not specifically included in our cost estimate, Attachment "B".
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