Exhibit 10
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STANDARD FORM
OF
AGREEMENT
AND
GENERAL CONDITIONS
BETWEEN
OWNER AND CONTRACTOR
(WHERE THE BASIS OF PAYMENT IS THE
COST OF THE WORK PLUS A FIXED FEE)
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TABLE OF CONTENTS
ARTICLE 1
AGREEMENT ........................................................... 1
ARTICLE 2
GENERAL PROVISIONS .................................................. 2
ARTICLE 3
CONTRACTOR'S RESPONSIBILITIES ....................................... 3
ARTICLE 4
OWNER'S RESPONSIBILITIES ............................................ 9
ARTICLE 5
SUBCONTRACTS ........................................................ 10
ARTICLE 6
CONTRACT TIME ....................................................... 10
ARTICLE 7
COMPENSATION ........................................................ 11
ARTICLE 8
COST OF THE WORK .................................................... 12
ARTICLE 9
CHANGES IN THE WORK ................................................. 14
ARTICLE 10
PAYMENT FOR CONSTRUCTION PHASE SERVICES ............................. 15
ARTICLE 11
INDEMNITY, INSURANCE AND WAIVER OF SUBROGATION ...................... 16
ARTICLE 12
TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM CONTRACTOR'S
RESPONSIBILITIES .................................................... 19
ARTICLE 13
DISPUTE RESOLUTION .................................................. 22
ARTICLE 14
MISCELLANEOUS PROVISIONS ............................................ 22
ARTICLE 15
CONFIDENTIALITY ..................................................... 23
ARTICLE 16
EXISTING CONTRACT DOCUMENTS ......................................... 23
ARTICLE 1
AGREEMENT
This Agreement is made this 9th day of August, in the year 1996, by and
between the
OWNER
KANSAS CITY STATION CORPORATION
0000 X.X. Xxxxxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
and the
CONTRACTOR
XXXXXX/XXXXX JOINT VENTURE and XXXXXX/DIGGS JOINT VENTURE 0000 X.X.
Xxxxxxxxxx Xxxx 0000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000 Xxxxxx Xxxx, XX 00000
for services in connection with the following
PROJECT
The Contractor shall furnish all labor, equipment, material, and
shop drawings for all or any portion of the following scope of work
as directed and at the sole discretion of the Owner:
ALL intended buildings and site improvements as developed by
Architects, Engineers and Designers employed by Owner for the
referenced project. There will be excluded that portion of work
included in the Xxxxxxx Construction Scope of Work and any portion
of the Work not authorized by the Owner through a written Directive
or written Change Order.
The Project Scope of Work is divided into the following
sub-projects:
Site Improvements - Primarily mass excavating
and land balance, curbs, asphalt, site lighting, water,
sanitary and sewer utilities
Off-Site Improvements - Primarily improvements to Xxxxx Road and
Route 210. Also, includes minor improvements along
Birmingham Road.
Low Rise Shell and Central Plant Primarily the land based
support facility containing ticketing, restaurants, hotel lobby
and retail along with the Central Power/Utility support facility.
Low Rise Tenant Improvements Primarily the theme restaurants in
the land based facility.
Porte Cochere Primarily the main grand
entrance tower and porte cochere to the Low Rise building.
Casino I and Casino II Primarily the gaming facilities
constructed on floating platforms provided by others.
General Conditions Primarily the general direct costs
incurred by the General Contractor incidental to the execution
of the entire project.
NOTICE TO THE PARTIES SHALL BE GIVEN AT THE ABOVE ADDRESSES. NOTICE TO
XXXXXX/XXXXX MUST BE AT BOTH ADDRESSES LISTED ABOVE.
ARTICLE 2
GENERAL PROVISIONS
2.1 ARCHITECT/ENGINEER Architectural and engineering services shall be
procured from licensed, independent design professionals retained by the
Owner. The persons or entities providing architectural and engineering
services shall be referred to as the Architect/Engineer.
2.2 GENERAL Having carefully examined all the provisions hereof,
the site and all conditions affecting the Work, the Contractor
undertakes to perform the Work herein described.
2.3 TEAM RELATIONSHIP The Owner, the Owner's Representatives, and the
Contractor shall take all actions reasonably necessary to perform this
Agreement in an economical and timely manner, including consideration
of design modifications and alternative materials or equipment that will
permit the Work to be constructed by the dates of
Substantial Completion, as established in Exhibit A attached hereto and
incorporated herein by reference.
2.4 PARTIAL CONTRACTS The Owner may, at its sole discretion, convert
any portion of the Project to Lump Sum or GMP, with new and separate
contracts with Contractor; provided, however, if the parties cannot agree on
a new contract, then the Work will be performed under this Agreement.
2.5 EXTENT OF AGREEMENT This Agreement is solely for the benefit
of the parties, represents the entire and integrated agreement between
the parties, and supersedes all prior negotiations, representations or
agreements, either written or oral.
2.6 DEFINITIONS
2.6.1 The Contract Documents consist of:
2.6.1.1 this Agreement;
2.6.1.2 Change Orders and written amendments to this
Agreement signed by both the Owner and Contractor.
2.6.1.3 the most current Documents approved by the Owner
pursuant to Subparagraph 3.1.6;
2.6.1.4 the information provided by the Owner pursuant to
Subparagraph 4.1.2.1;
2.6.1.5 the Contract Documents in existence at the time of
execution of this Agreement which have been submitted
to the City of Kansas City, Missouri for review and
permitting purposes and are set forth in Article 16;
2.6.1.6 the Owner's Program provided pursuant
to Subparagraph 4.1.1.
2.6.2 The Work is the Construction Phase Services provided in
accordance with Paragraph 3.3, any Additional Services that may be
provided in accordance with Paragraph 3.8 and other services which
are necessary to complete the Project.
2.6.3 The term Day shall mean calendar day.
2.6.4 A Subcontractor is a person or entity who has an agreement with
the Contractor to perform any portion of the Work. The term
Subcontractor does not include the Architect/Engineer or any
separate contractor employed by the Owner or any separate
contractor's subcontractors.
2.6.5 A Subsubcontractor is a person or entity who has
an agreement with a Subcontractor to perform any portion
of the Subcontractor's work.
2.6.6 Substantial Completion of the Work, or of a designated portion,
occurs on the date when construction is sufficiently complete in
accordance with the Contract Documents so that the Owner can occupy
or utilize the Project, or a designated portion, for the use for
which is it intended unless substantial completion cannot be achieved
due to design code issues or owner related issues that are not caused
by Contractor. This date shall be confirmed by a certificate of
Substantial Completion signed by the Owner and Contractor. The
certificate shall state the respective responsibilities of the
Owner and Contractor for security, maintenance, heat, utilities,
damage to the Work, and insurance. The certificate shall also list
the items to be completed or corrected, and establish the time for
their completion and correction. A certificate of substantial
completion shall be issued for each portion of the work as it is
occupied by the Owner.
2.6.7 INTENTIONALLY OMITTED.
ARTICLE 3
CONTRACTOR'S RESPONSIBILITIES
The Contractor shall be responsible for the construction of the Work. The
Contractor shall exercise reasonable skill and judgment in the
performance of its services.
3.1 INTENTIONALLY OMITTED.
3.1.1 INTENTIONALLY OMITTED.
3.1.2 INTENTIONALLY OMITTED.
3.1.3 INTENTIONALLY OMITTED.
3.1.4 INTENTIONALLY OMITTED.
3.1.5 INTENTIONALLY OMITTED.
3.1.6 CONSTRUCTION DOCUMENTS The Construction Documents prepared by
the Architect/Engineer shall set forth in detail the requirements
for construction of the Work, and shall consist of drawings and
specifications based upon codes, laws or regulations enacted at
the time of their preparation. Construction shall be in strict
accordance with these approved Construction Documents.
3.1.7 OWNERSHIP OF DOCUMENTS All Documents shall be the
property of the Owner, and all thereof shall be
forthwith delivered to Owner upon completion of the Project.
3.2 BASIS OF THE FEE
3.2.1 INTENTIONALLY OMITTED.
3.2.2 INTENTIONALLY OMITTED.
3.2.3 The basis of payment is the Cost of the Work plus
a Fixed Fee, all as more specifically set forth in
Exhibit A attached hereto and incorporated herein by reference.
3.2.4 INTENTIONALLY OMITTED.
3.2.4.1 INTENTIONALLY OMITTED.
3.2.4.2 INTENTIONALLY OMITTED.
3.2.4.3 INTENTIONALLY OMITTED.
3.2.4.4 INTENTIONALLY OMITTED.
3.2.4.5 INTENTIONALLY OMITTED.
3.2.4.6 INTENTIONALLY OMITTED.
3.2.4.7 INTENTIONALLY OMITTED.
3.2.4.8 INTENTIONALLY OMITTED.
3.2.5 INTENTIONALLY OMITTED.
3.2.6 INTENTIONALLY OMITTED.
3.2.7 INTENTIONALLY OMITTED.
3.2.8 INTENTIONALLY OMITTED.
3.2.9 INTENTIONALLY OMITTED.
3.2.10 Although the Contractor is not responsible for identifying any
such errors, omissions or failures in the Contract Documents,
if the Contractor becomes aware of any error, omission or failure
to meet the requirements of the Contract Documents or any fault
or defect in the Work; the Contractor shall give written
notice to the Owner within five (5) days. If the Contractor
is delayed due to any such errors, omissions or failures in the
Contract Documents, the Contractor shall be entitled to a time
extension to the date of the Substantial Completion and
additional compensation as provided in paragraph 6.3.1.
3.3 CONSTRUCTION PHASE SERVICES
3.3.1 The Construction Phase will commence upon the
issuance by the Owner of a written directive to proceed with
construction. The Owner's written notice to proceed shall
list the documents that are applicable to the part of the Work
which the Owner has authorized.
3.3.2 In order to complete the Work, the Contractor shall
provide all necessary construction supervision, inspection,
construction equipment,labor, materials, tools, and subcontracted
items.
3.3.3 The Contractor shall give all notices and comply
with all laws, ordinances and building codes legally
enacted at the date of execution of the Agreement which
govern the proper performance of the Work.
3.3.4 The Contractor shall prepare and submit reliable
cost estimates and a Schedule of Work for the Owner's
review. These estimates shall be based on competitive
pricing, and will form the basis for the construction
budget for the Project. The Schedule shall indicate the dates
for the start and completion of the various stages of
the construction including the dates when information
and approvals are required from the Owner, and shall be
coordinated with Owner's Master Schedule. It shall be revised
as required by the conditions of the Work, but not less often
than monthly. Contractor shall cooperate with its Subcontractors
in preparing and revising schedules.
3.3.5 The Contractor shall obtain and pay for the
building permits necessary for the construction of the
Project.
3.3.6 The Contractor shall take necessary precautions for the safety
of its employees on the Project, and shall comply with all
applicable provisions of federal, state and municipal safety laws
to prevent accidents or injury to persons on, about or adjacent
to the Project site. The Contractor, directly or through its
Subcontractors, shall erect and properly maintain at all
times, as required by the conditions and progress of the Work,
necessary safeguards for the protection of workers and the
public. The Contractor, however, shall not be responsible for
the elimination or abatement of safety hazards created or
otherwise resulting from work at the Project site carried on
by the Owner or its employees, agents, separate contractors
or tenants. The Owner agrees to cause its employees, agents,
separate contractors and tenants to abide by and fully adhere
to all applicable provisions of federal, state and municipal
safety laws and regulations.
3.3.7 The Contractor shall prepare and keep such full and detailed
accounts as may be necessary for proper financial management
under this Agreement. Upon reasonable notice, which
at a minimum shall be three (3) business days, the Owner shall
be afforded access to all the Contractor's records, books,
correspondence, instructions, drawings, receipts, vouchers,
memoranda and similar data Contractor shall preserve all such
records for a period of three Contractor shall make available
those records kept at the project site at its earliest possible
convenience.
3.3.8 The Contractor shall provide written reports, not less often
than monthly, to the Owner on the progress of the Work.
3.3.9 The Contractor shall develop an accurate system of cost reporting
for the Work, including regular monitoring of actual costs
for activities in progress and estimates for uncompleted tasks
and proposed or directed changes in the Work. The reports shall
be presented to the Owner at mutually agreeable intervals, but
not less often than monthly.
3.3.10 At all times the Contractor shall maintain the site of the Work
free from debris and waste materials resulting from the Work. At
the completion of the Work, the Contractor shall remove from the
premises all construction equipment, tools, surplus materials,
waste materials and debris, and leave the premises in a "final
clean" condition.
3.3.11 The Contractor shall assist the Owner in securing design
information and issues resolution necessary to facilitate
construction progress.
3.3.12 The Contractor is aware of, and shall assist the Owner in that
portion pertaining to the Contractor in the fulfillment of,
Owner's Development Agreement with the Kansas City Port
Authority. The Owner also certifies that he has provided the
Contractor with all of the Agreements that pertain to the
commitments to the Kansas City Port Authority. The Contractor
shall endeavor to secure certified MBE/WBE companies as
subcontractors, with targets of 25% MBE and 10% WBE
participation based on the total Cost of the Work. The Contractor
shall exceed these percentage goals whenever practical, to assist
Owner's overall percentages of MBE/WBE participation in the
development of the Project.
3.3.13 Other than the dates of Substantial Completion set forth in
Exhibit A hereto, any and all estimates, of either cost or time,
required of the Contractor herein shall be done to best of the
Contractor's reasonable and good faith abilities, but the
Contractor shall not be bound by such estimates so long as the
estimates are reasonable and are made in good faith. The
dates of Substantial Completion are contingent upon the Owner
timely and fully performing all of its obligations and the
Contractor not encountering conditions or events beyond its
control.
3.4 HAZARDOUS MATERIAL
3.4.1 A Hazardous Material is any substance or material
identified now or in the future as hazardous under any federal,
state or local law or regulation, or any other substance or
material which may be considered hazardous or otherwise subject
to statutory or regulatory requirements governing handling,
disposal and/or cleanup. The Contractor shall not be obligated to
commence or continue Work until any known or suspected Hazardous
Material discovered at the Project site has been removed,
rendered or determined to be harmless by the Owner as certified
by an independent testing laboratory.
3.4.2 If after the commencement of the Work, known or suspected
Hazardous Material is discovered at the Project site, the
Contractor shall be entitled to immediately stop Work in the
affected area, and the Contractor shall report the condition
to the Owner and, if required, by law, the government agency with
jurisdiction.
3.4.3 The Contractor shall not be required to perform any Work
relating to or in the area of known or suspected Hazardous
Material without written mutual agreement.
3.4.4 The Owner shall be responsible for retaining an independent
testing laboratory to determine the nature of the material
encountered and whether it is a Hazardous Material requiring
corrective measures and/or remedial action. Such measures shall
be the sole responsibility of the Owner, and shall be performed
in a manner minimizing any adverse effect upon the Work of the
Contractor. The Contractor shall resume Work in the area
affected by any Hazardous Material only when the Hazardous
Material has been removed or rendered harmless.
3.4.5 If the Contractor is delayed due to the presence of known
or suspected Hazardous Material, the Contractor shall be
entitled to a time extension to the date of Substantial
Completion and additional compensation as provided
in paragraph 6.3.1, unless caused solely by the Contractor.
3.5 ROYALTIES, PATENTS AND COPYRIGHTS The Contractor shall pay all
royalties and license fees which may be due on the inclusion of any patented
or copyrighted materials, methods or systems selected by the
Contractor and incorporated in the Work. The Contractor shall defend,
indemnify and hold the Owner harmless from all suits or claims for
infringement of any patent rights or copyrights arising out of such
selection, including, without limitation, losses, costs, expenses,
damages, attorney's fees, whether direct, indirect or consequential. The
Owner agrees to defend, indemnify and hold the Contractor harmless from any
suits or claims or infringement of any patent rights or copyrights
arising out of any patented or copyrighted materials, methods or systems
specified by the Owner.
3.6 TAX EXEMPTION If in accordance with the Owner's direction
an exemption is claimed for taxes, the Owner agrees to defend, indemnify
and hold the Contractor harmless from any liability, penalty, interest,
fine, tax assessment, attorneys fees or other expense or cost incurred by
the Contractor as a result of any action taken by the Contractor in
accordance with the Owner's direction.
3.7 WARRANTIES AND COMPLETION
3.7.1 The Contractor warrants that all materials and
equipment furnished under the Construction Phase of this
Agreement will be new unless otherwise specified, of the
best quality, in conformance with the Contract Documents,
and free from defective workmanship and materials. Warranties
shall commence on the date of Substantial Completion of the
Work or of a designated portion. The Contractor agrees to
correct all construction performed under this Agreement which
proves to be defective in workmanship and materials within a
period of one year from the date of Substantial Completion of
each designated portion of the work, or for such longer
periods of time as may be set forth with respect to specific
warranties required by the Contract Documents, provided that
payment for original work performed has been made unless such
failure to pay is a result of a material bona-fide dispute.
3.7.2 Those products, equipment, systems or materials incorporated
in the Work at the direction of or upon the specific request
of the Owner shall be covered exclusively by the warranty of
the manufacturer. There are no warranties which extend beyond
the description of the face thereof.
3.7.3 The Contractor shall secure required certificates of
inspection, testing or approval and deliver them to the Owner.
3.7.4 The Contractor shall collect all written warranties and
equipment manuals and deliver them to the Owner.
3.7.5 With the assistance of the Owner's maintenance personnel,
the Contractor shall direct the check-out of utilities and
operations of systems and equipment for readiness,
and assist in their initial start-up and testing.
3.7.6 The Contractor shall maintain at the site of the Work, and
cause its subcontractors to maintain, complete and accurate
as-built drawings of the Work as it is performed. As-built
drawings will be delivered to the Owner upon completion of
the Project, and shall be one of the precedents to final
payment to the Contractor.
3.8 ADDITIONAL SERVICES The Contractor shall provide or procure the
following Additional Services upon the request of the Owner. A separate
written agreement between the Owner and Contractor shall define the extent
of such Additional Services.
3.8.1 Documentation of the Owner's Program, investigating
sources of financing, general business planning and other
information and documentation as may be required to the
feasibility of the Project.
3.8.2 Consultations, negotiations, and documentation
supporting the procurement of Project financing.
3.8.3 INTENTIONALLY OMITTED.
3.8.4 Appraisals of existing equipment, existing
properties, new equipment and developed properties.
3.8.5 Soils, subsurface and environmental studies,
reports and investigations required for submission to
governmental authorities or others having jurisdiction over
the Project.
3.8.6 Consultations and representations other than
normal assistance in securing building permits, before
governmental authorities or others having jurisdiction
over the Project.
3.8.7 INTENTIONALLY OMITTED.
3.8.8 Artistic renderings or models of the Project.
Mockups of the Project do not constitute Additional
Services under this Agreement.
3.8.9 Inventories of existing furniture, fixtures,
furnishings and equipment which might be under
consideration for incorporation into the Work.
3.8.10 Interior design and related services, excluding
procurement and placement of furniture, furnishings, art
work and decorations.
3.8.11 INTENTIONALLY OMITTED.
3.8.12 INTENTIONALLY OMITTED.
3.8.13 Estimates, proposals, appraisals, consultations,
negotiations and services in connection with the repair or
replacement of an insured loss.
3.8.14 The premium portion of overtime work ordered by the Owner that
is necessitated by the fault of the Owner.
3.8.15 INTENTIONALLY OMITTED.
3.8.16 INTENTIONALLY OMITTED.
3.8.17 Services for tenant or rental spaces not a part of
this Agreement.
3.8.18 Services requested by the Owner which are not
specified in the Contract Documents and which are not normally
part of generally accepted construction practice.
3.8.19 Serving or preparing to serve as an expert witness
in connection with any proceeding, legal or otherwise,
regarding the Project.
3.8.20 Preparing reproducible record drawings from marked-
up prints, drawings or other documents that incorporate
significant changes in the Work made during the
Construction Phase.
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 INFORMATION AND SERVICES PROVIDED BY OWNER
4.1.1 The Owner shall provide full information in a
timely manner regarding requirements for the Project,
including the Construction Documents and other relevant
information.
4.1.2 The Owner shall also provide:
4.1.2.1 inspection and testing services during
construction as required by law or as mutually
agreed; and
4.1.2.2 unless otherwise provided in the
Contract Documents, necessary approvals, site
plan review, rezoning, easements
and assessments, necessary permits, fees and
charges required for the construction, use,
occupancy or renovation of permanent structures,
including legal and other required services.
4.1.3 The Contractor shall be entitled to rely on the
completeness and accuracy of the information and
services required by this Paragraph 4.1.
4.2 INTENTIONALLY OMITTED.
4.2.1 INTENTIONALLY OMITTED.
4.3 OWNER'S RESPONSIBILITIES DURING CONSTRUCTION PHASE
4.3.1 The Owner shall review and timely approve or
reject the cost estimates and Schedule of the Work as set
forth in Subparagraph 3.3.4.
4.3.2 If the Owner becomes aware of any error, omission
or failure to meet the requirements of the Contract
Documents or any fault or defect in the Work, the Owner shall
give written notice to the Contractor within a reasonable time,
not to exceed five (5) days.
4.3.3 The Owner shall communicate with the Contractor's
Subcontractors and suppliers only through the
Contractor. The Owner shall have no contractual
obligations to Subcontractors and suppliers of the
Contractor.
4.3.4 The Owner shall provide insurance for the Project
as provided in Article 11.
4.4 OWNER'S REPRESENTATIVE The Owner's Representative is Xxxxxx Xxxxx, who
is agreed to by the Contractor. The representative:
4.4.1 shall be fully acquainted with the Project;
4.4.2 agrees to furnish the information and services
required of the Owner pursuant to Paragraph 4.1;
4.4.3 shall have authority to bind the Owner in all
matters requiring the Owner's approval, authorization or
written notice. If the Owner changes its representative
or the representative's authority as listed above, the
Owner shall notify the Contractor in advance in writing; and
4.4.4 shall be assisted by an on-site staff of Owner's
employees and/or consultants who will facilitate
design and construction of the Project.
ARTICLE 5
SUBCONTRACTS
Work not performed by the Contractor with its own forces shall be performed
by licensed Subcontractors.
5.1 RETAINING SUBCONTRACTORS The Contractor shall not retain
any Subcontractor to whom the Owner has a reasonable and timely
objection. The Contractor shall not be required to retain any
Subcontractor to whom the Contractor has a reasonable objection.
Contractor agrees to utilize reasonable practices and solicit a
sufficient number of bidders to assure to Owner the lowest cost.
5.2 MANAGEMENT OF SUBCONTRACTORS The Contractor shall be responsible
for the management of the Subcontractors in the performance of their
work which includes, without limitation, the obligation to obtain input
from Subcontractors and coordinate their work to assure the timely completion
of the Project within the budgets established for the Project.
5.3 ASSIGNMENT OF SUBCONTRACT AGREEMENTS The Contractor shall provide
for assignment of subcontract agreements in the event this Agreement is
terminated as provided in this Agreement. Following such termination, the
Owner shall notify in writing those subcontractors whose assignments will
be accepted, subject to the rights of sureties.
ARTICLE 6
CONTRACT TIME
6.1 COMMENCEMENT OF THE WORK The Work commenced on or about
August 1, 1995, and shall proceed in general accordance with the schedule of
work as such schedule may be amended from time to time, subject, however,
to the provisions of Paragraph 3.4.
6.2 SUBSTANTIAL COMPLETION The dates for Substantial Completion of all
Work are set forth in Exhibit A attached hereto and incorporated herein
by reference. Time shall be of the essence of this Agreement.
6.3 DELAYS IN THE WORK
6.3.1 If causes beyond the Contractor's control delay
the progress of the Work, then the date of Substantial
Completion and Cost of the Work shall be modified by
Change Order as appropriate. Causes beyond Contractor's
control shall include but not be limited to: changes
ordered in the Work, acts or omissions of the Owner or
separate contractors employed by the Owner, the Owner
preventing the Contractor from performing the Work pending
dispute resolution, Hazardous Materials, adverse weather
conditions not reasonably anticipated, fire, unusual
transportation delays, labor disputes, or unavoidable
accidents or circumstances. Delays by Subcontractors
are not delays beyond Contractor's control.
The Contractor's remedy shall be limited to an extension
of time and reimbursement of those compensable costs set
forth in paragraph 8.2. plus Contractor's fee.
6.3.2 Notwithstanding anything herein or elsewhere contained to
the contrary, this Project is a "fast track" construction
project, and Contractor acknowledges that the Contract
Documents do not include 100% complete Contract Drawings,
it being understood that plans are being drawn and developed
during the Construction Phase.
The Contractor is not responsible for any delays caused by
incomplete Contract Drawing or Documents. If the Contractor is
delayed due to the Contract Drawings or Documents, the
Contractor shall be entitled to a time extension to the date
of substantial completion and additional compensation as
provided in paragraph 6.3.1.
6.3.3 In the event delays to the Project are encountered
for any reason, the parties agree to undertake reasonable steps
to mitigate the effect of such delays.
ARTICLE 7
COMPENSATION
7.1 INTENTIONALLY OMITTED.
7.2 INTENTIONALLY OMITTED.
7.2.1 INTENTIONALLY OMITTED.
7.2.2 INTENTIONALLY OMITTED.
7.2.3 INTENTIONALLY OMITTED.
7.2.4 INTENTIONALLY OMITTED.
7.3 CONSTRUCTION PHASE COMPENSATION
7.3.1 In addition to the cost of the work, the Owner
shall compensate the Contractor a fixed fee for Work
performed following the commencement of Construction on the
basis described in Exhibit A attached hereto and incorporated
herein by reference (the "Contractor's Fee").
7.3.1.1 INTENTIONALLY OMITTED.
7.3.1.2 The Contractor's Fee shall be paid
proportionately to the ratio that the monthly
Cost of the Work bears to the total estimated
Cost of the Work.
7.3.2 INTENTIONALLY OMITTED.
7.3.3 Payment for Construction Phase Services shall be
as set forth in Article 10.
7.4 INTENTIONALLY OMITTED.
7.4.1 INTENTIONALLY OMITTED.
7.4.2 INTENTIONALLY OMITTED.
7.4.3 INTENTIONALLY OMITTED.
7.5 ADJUSTMENTS IN THE CONTRACTOR'S FEE Adjustment in the
Contractor's Fee shall be made as follows:
7.5.1 for Changes in the Work as provided in Article 9,
the Contractor's Fee shall be adjusted as agreed and
presented in the Fee Schedule attached hereto as
Exhibit A and incorporated herein by reference, or by Change
Order or as determined by the dispute resolution procedures
set forth herein; and
7.5.2 INTENTIONALLY OMITTED.
7.6 RETAINAGE To insure the proper performance of this
Agreement, and except for payment of Contractor s Fee and general
conditions, the Owner shall retain five percent (5%) of each payment
hereunder until the date of Substantial Completion of each phased portion
of the work, at which time the retainage for that portion of the work
shall be released and the pro rata portion of the retention related to
the occupied portion shall be released; provided, however, even after
Substantial Completion Owner may withhold a reasonable amount pending
completion of any "punch list" or similar work but not to exceed 150% of
the value of such work as estimated by the Architect/Engineer.
7.7 EFFECT OF PAYMENT Payments made hereunder are made
provisionally and do not constitute acceptance of work not in
accordance with the Contract Documents.
ARTICLE 8
COST OF THE WORK
The Owner agrees to pay the Contractor for the Cost of the Work as
defined herein. This payment shall be in addition to the Contractor's
Fee.
8.1 INTENTIONALLY OMITTED.
8.1.1 INTENTIONALLY OMITTED.
8.2 COST ITEMS FOR CONSTRUCTION PHASE SERVICES
8.2.1 Wages paid for field labor in the direct employ of
the Contractor in the performance of the Work.
8.2.2 Salaries of Contractor's employees who are
permanently stationed at the field office, in whatever
capacity employed, including Xxxxx Xxxxxxx, MIS
Director and Lotus Xxxxxxx, EEOP Director when
providing services directly related to the project.
8.2.3 Cost of all employee benefits and taxes including
but not limited to workers' compensation, unemployment
compensation, Social Security, health, welfare,
retirement and other fringe benefits as required by law,
labor agreements, or paid under the Contractor's standard
personnel policy, insofar as such costs are paid to employees
of the Contractor who are included in the Cost of the Work under
Subparagraphs 8.2.1 and 8.2.2.
8.2.4 Reasonable transportation, travel, hotel and moving expenses
of the Contractor's personnel incurred in connection with the
Work.
8.2.5 Cost of all materials, supplies and equipment
incorporated in the Work, including costs of
inspection, testing, transportation, storage and handling.
8.2.6 Payments made by the Contractor to Subcontractors for work
performed under this agreement.
8.2.7 Fees and expenses for design services procured by
the Contractor.
8.2.8 The reasonable cost, including transportation and
maintenance of all materials, supplies, equipment,
temporary facilities and hand tools not owned by the workers
that are used or consumed in the performance of the Work, less
salvage value.
8.2.9 The reasonable rental charges of all necessary
machinery and equipment, exclusive of hand tools owned by
workers, used at the site of the Work, whether rented from
the Contractor or others, including installation, repair and
replacement, dismantling, removal, maintenance, transportation
and delivery costs at rental charges consistent with those
prevailing in the area.
8.2.10 Cost of the premiums for all insurance and surety
bonds which the Contractor is required to procure or
deems necessary.
8.2.11 Sales, use, gross receipts or other taxes, tariffs
or duties related to the Work for which the Contractor is
liable.
8.2.12 Permits, fees, licenses, tests, royalties, costs
of defending suits for which the Contractor is not
responsible as set forth in Paragraph 3.5, and deposits lost for
causes other than the Contractor's fault or
negligence.
8.2.13 All costs associated with establishing, equipping,
operating, maintaining and demobilizing the field
office.
8.2.14 Reproduction costs, photographs, cost of
telegrams, facsimile transmissions, long distance
telephone calls, data processing services, postage, express
delivery charges, telephone service at the site and reasonable
xxxxx cash expenses at the field office.
8.2.15 All water, power and fuel costs necessary for the
Work.
8.2.16 Cost of removal of all nonhazardous substances,
debris and waste materials.
8.2.17 Costs incurred due to an emergency affecting the
safety of persons and/or property.
8.3 DISCOUNTS AND SAVINGS All trade discounts, savings, rebates
and refunds, and all returns from sale of surplus materials and equipment
shall, regardless of by whom paid, be credited to the Cost of the Work.
ARTICLE 9
CHANGES IN THE WORK
Changes in the Work which are within the general scope of this Agreement
may be accomplished by directive or Change Order without invalidating
this Agreement.
9.1 CHANGE ORDERS A Change Order is an instrument, issued
after execution of this Agreement, signed by the Owner and
Contractor stating their agreement upon a change in the scope of the
Project which necessitates an adjustment in the dates of Substantial
Completion and/or Contractor's Fee.
9.2 DETERMINATION OF COST A change in the Cost of the Work
shall be determined by one or more of the following methods:
9.2.1 unit prices set forth in this Agreement or as
subsequently agreed;
9.2.2 a mutually accepted, itemized lump sum;
9.2.3 costs determined as defined in Article 8 and a
mutually acceptable Contractor's Fee as determined in
Subparagraph 7.5.1; or
9.2.4 if an increase or decrease cannot be agreed to as
set forth in Subparagraphs 9.2.1 through 9.2.3 and the Owner
issues a written order for the Contractor to proceed with
the change, the cost of the change in the Work shall be
determined by the reasonable expense and savings of the
performance of the Work resulting from the change.
The Contractor shall maintain a documented, itemized accounting
evidencing the expenses and savings.
9.3 OBLIGATION TO PERFORM Effective upon the date of the execution
of this Agreement, upon notice or directive by Owner, Contractor shall be
obligated to perform changed Work even if a Change Order has not been
executed by the Owner and Contractor, in which event the provisions of
Article 13 shall apply. Owner shall use its best efforts to provide
written direction in a timely manner.
9.4 ADJUSTMENT OF UNIT PRICES If a proposed Change Order alters original
quantities to a degree that application of previously agreed to unit prices
would be inequitable to either the Owner or the Contractor, the unit prices
and the Cost of the Work shall be equitably adjusted.
9.5 UNKNOWN CONDITIONS If in the performance of the Work the Contractor
finds latent, concealed physical conditions which differ from the
conditions the Contractor reasonably anticipated, then the date of
Substantial Completion shall be equitably adjusted by Change Order
within a reasonable time after the conditions are first observed and any
additional compensation as provided in Paragraph 6.3.1.
9.6 CLAIMS FOR ADDITIONAL COST OR TIME For any claim for an increase in
the Cost of the Work and/or an extension in the date of Substantial
Completion, the Contractor shall give the Owner notice of the claim
within five (5) days after the Contractor first recognizes, or ought to
recognize, the condition giving rise to the claim. Except in an emergency,
notice shall be given before proceeding with the Work. Any change in the
Cost of the Work and/or date of Substantial Completion resulting from such
claim shall be authorized by Change Order or Directive, as appropriate.
9.7 EMERGENCIES In any emergency affecting the safety of persons
and/or property, the Contractor shall act, at its discretion, to
prevent threatened damage, injury or loss. Any change in the Cost of the
Work and/or extension of the date of Substantial Completion on account of
emergency work shall be determined as provided in this Article.
ARTICLE 10
PAYMENT FOR CONSTRUCTION PHASE SERVICES
10.1 PROGRESS PAYMENTS
10.1.1 On or before the last day of each month after the
Construction Phase has commenced, the Contractor shall
submit to the Owner an Application for Payment consisting
of the Cost of the Work performed up to the 20th day of that
same month, including the cost of material stored on the site
or at other locations approved by the Owner, along with a
proportionate share of the Contractor's Fee. Prior to submission
of the next Application for Payment, the Contractor shall
furnish to the Owner a statement accounting for the disbursement
of funds received under the previous Application. The
extent of such statement shall be as agreed upon between the
Owner and Contractor.
10.1.2 Within twenty-five (25) days after receipt of each
monthly Application for Payment, or by the 25th of the
following month, whichever is later, the Owner shall pay
directly to the Contractor the appropriate amount for which
Application for Payment is made, less amounts previously paid by
the Owner.
10.1.3 If the Owner fails to pay the Contractor at the time payment
of any amount becomes due, then the Contractor may, at any
time thereafter, upon serving written notice that the Work
will be stopped within five (5) days after receipt of the
notice by the Owner and after such five (5) day period, stop
the Work until payment of the amount owing has been received.
10.1.4 Payments due but not paid shall bear interest at the current
prime rate of Boatmen's Bank as of the date of default.
10.1.5 The Contractor warrants and guarantees that title
to all Work, materials and equipment covered by an
Application for Payment, whether incorporated in the Project
or not, will pass to the Owner upon receipt of such payment by
the Contractor free and clear of all liens, claims, security
interests or encumbrances, hereinafter referred to as
"liens".
10.1.6 The Owner's progress payment, occupancy or use of
the Project, whether in whole or in part, shall not be
deemed an acceptance of any Work not conforming to the
requirements of the Contract Documents.
10.2 FINAL PAYMENT
10.2.1 Final payment, consisting of the unpaid balance of the
incurred Cost of the Work and the Contractor's fee, shall be
due and payable not later than thirty (30) days after the Work
is fully completed. However, if application for final payment
is not made within one hundred seventy-nine (179) days after
the Work is fully completed, Contractor's right to receive
such final payment shall be deemed conclusively waived. Before
issuance of final payment, the Owner may request satisfactory
evidence that all payrolls, materials bills and other
indebtedness connected with the Work have been paid or
otherwise satisfied.
10.2.2 In accepting final payment, the Contractor waives
all claims. In the event of any claims by the
Contractor, the Owner shall timely pay all sums that are
not in dispute.
10.3 LIEN WAIVER AND INDEMNITY Any and all application(s) for a progress
or final payment shall be accompanied by a lien waiver and indemnity form
furnished by Owner.
ARTICLE 11
INDEMNITY, INSURANCE AND WAIVER OF SUBROGATION
11.1 INDEMNITY
11.1.1 To the fullest extent permitted by law, the
Contractor shall defend, indemnify and hold the Owner
harmless from any and all claims, including but not
limited to, claims for bodily injury, property damage (other
than to the Work itself and other property insured under
Paragraph 11.5) and the resulting loss of use that may arise
from the performance of the Work. Such indemnity shall include
payment to Owner of its reasonable attorney's fees and
expenses paid or incurred.
The above-mentioned indemnification shall extend to any and
all such claims which result from the negligent acts or
omissions or willfull misconduct of the Contractor,
Subcontractors or anyone employed or retained directly or
indirectly by any of them or any party that the Contractor or
Subcontractor may be liable. The Contractor shall not be
required to defend, indemnify or hold harmless the Owner for
any negligent acts, or omissions or willful misconduct of the
Owner, Owner's employees, agents or separate contractors.
11.1.2 To the fullest extent permitted by law, the Owner
shall defend, indemnify and hold the Contractor
harmless from any and all claims, including but not limited
to, claims for bodily injury and property damage (and the
resulting loss of use of any such property) that arises out
of or during the performance of the Work. Such indemnity shall
include payment to the Contractor of its reasonable attorney's
fees and expenses paid or incurred. The above-mentioned
indemnification shall extend to any and all such claims which
result from the negligent acts or omissions or willful
misconduct of the Owner, the Owner's agents, and to anyone
employed or retained directly or indirectly by the Owner. The
Owner shall not be required to defend, indemnity or hold
harmless the Contractor for any negligent acts or omissions
or willful misconduct of the Contractor, Contractor's
employees, agents or separate contractors.
11.2 CONTRACTOR'S LIABILITY INSURANCE
11.2.1 The Contractor shall obtain and maintain projectspecific
insurance coverage for the following claims which may arise
out of the performance of this Agreement, whether resulting
from the Contractor's operations or by the operations of any
Subcontractor, anyone in the employ of any of them, or by an
individual or entity for whose acts they may be liable:
11.2.1.1 workers' compensation, disability and other employee
benefit claims under acts applicable to the Work;
11.2.1.2 under applicable employers liability law, bodily
injury, occupational sickness, disease or death
claims of the Contractor's employees;
11.2.1.3 bodily injury, sickness, disease or death claims
for damages to persons not employed by the
Contractor;
11.2.1.4 usual personal injury liability claims for damages
directly or indirectly related to the person's
employment by the Contractor or for damages to
any other person;
11.2.1.5 damage to or destruction of tangible property,
including resulting loss of use, claims for property
other than the Work itself and other property insured
under Paragraph 11.5;
11.2.1.6 bodily injury, death or property damage claims
resulting from motor vehicle liability in the use,
maintenance or ownership of any motor vehicle; and
11.2.1.7 contractual liability claims involving the
Contractor's obligations under Subparagraph 11.1.1.
11.2.2 The Contractor's Commercial General and Automobile Liability
Insurance as required by Subparagraph 11.2.1 shall be
written for not less than the following limits of liability:
11.2.2.1 Commercial General Liability Insurance
11.2.2.1.1 Each Occurrence Limit $1,000,000
11.2.2.1.2 General Aggregate $2,000,000
11.2.2.1.3 Products/Completed
Operations Aggregate $2,000,000
11.2.2.1.4 Personal and Advertising
Injury Limit $1,000,000
11.2.2.2 Comprehensive Automobile Liability Insurance
11.2.2.2.1 Combined Single Limit
Bodily Injury and
Property Damage $1,000,000
Each Occurrence
or
11.2.2.2.2 Bodily Injury -Not Applicable-
Each Person
-Not Applicable-
Each Occurrence
11.2.2.2.3 Property Damage -Not Applicable-
Each Occurrence
11.2.3 Commercial General Liability Insurance may be arranged under
a single policy for the full limits required or by a
combination of underlying policies and an excess or Umbrella
Liability policy.
11.2.4 The policies shall contain a provision that
coverage will not be canceled or not renewed until at least
thirty (30) days' prior written notice has been given to the
Owner. Certificates of Insurance showing required coverage to
be in force shall be filed with the Owner prior to commencement
of the Work.
11.2.5 Products and Completed Operations insurance shall be maintained
for a minimum period of at least three (3) years after either
ninety (90) days following the date of Substantial Completion or
final payment, whichever is earlier.
11.2.6 A copy of Contractor's current Certificate of Insurance
is attached hereto as Exhibit B and incorporated herein
by reference. Where inconsistent with this Agreement, the
attached Certificate shall control.
11.3 INTENTIONALLY OMITTED.
11.4 NOTICE All insurance furnished by Contractor and its
Subcontractors located on the site shall include Owner and Station
Casinos, Inc. as additional insureds or named insureds, and a Certificate
of Insurance shall be furnished to Owner prior to commencement of the
Work. Contractor shall procure and furnish Owner the agreement of each
insurance company to give Owner not less than thirty (30) days' notice of
cancellation, nonrenewal or any endorsement eliminating or reducing coverage.
11.5 INSURANCE TO PROTECT PROJECT
11.5.1 The Owner shall obtain and maintain property insurance upon
the entire Project for the full cost of replacement at the time
of any loss. This insurance shall insure against loss from the
perils of fire and extended coverage, and shall include "all
risk" insurance for physical loss or damage including without
duplication of coverage at least: theft, vandalism, malicious
mischief, transit, collapse, falsework, temporary buildings,
debris removal, flood and earthquake. The Owner shall increase
limits of coverage, if necessary, to reflect estimated
replacement cost. The Owner shall be responsible for any
coinsurance penalties or deductibles.
11.5.2 If the Owner occupies or uses a portion of the Project prior
to its Substantial Completion, such occupancy or use shall
not commence prior to a time mutually agreed to by the Owner
and the Contractor and to which the insurance company
or companies providing the property insurance have consented
by endorsing the policy or policies. This insurance shall
not be canceled or lapsed on account of partial occupancy.
Consent of the Contractor to such early occupancy or use shall
not be unreasonably withheld.
11.5.3 The Owner shall obtain and maintain boiler and machinery
insurance as necessary.
11.5.4 The Owner shall purchase and maintain insurance to
protect against loss of use of Owner's property due to those
perils insured pursuant to Paragraph 11.5.
11.5.5 The Contractor shall be given thirty (30) days' notice of
cancellation, non-renewal, or any endorsements restricting or
reducing coverage. The Owner shall give written notice to
the Contractor before commencement of the Work if the Owner
will not be obtaining property insurance. In that case, the
Contractor may obtain insurance in order to protect its interest
in the Work as well as the interest of Architect/Engineer,
Subcontractors and Subsubcontractors in the Work. The cost
of this insurance shall be a Cost of the Work pursuant to
Article 8. If the Contractor is damaged by failure of the
Owner to purchase or maintain property insurance or to so
notify the Contractor, the Owner shall bear all reasonable
costs incurred by the Contractor arising from the damage.
11.6 PROPERTY INSURANCE LOSS ADJUSTMENT
11.6.1 Any insured loss shall be adjusted with the Owner
and the Contractor and made payable to the Owner and
Contractor as trustees for the insureds, as their interests
may appear, subject to any applicable mortgagee clause.
11.6.2 Upon the occurrence of an insured loss, monies received will
be deposited in a separate account and the trustees shall make
distribution in accordance with the agreement of the parties
in interest, or in the absence of such agreement, in
accordance with Article 13. If the trustees are unable to
agree between themselves on the settlement of the loss, such
dispute shall also be submitted for resolution pursuant to
Article 13.
11.7 WAIVER OF SUBROGATION
11.7.1 The Owner and Contractor waive all rights against each other,
the Architect/Engineer, and any of their respective employees,
agents, consultants, subcontractors and subsubcontractors for
damages caused by risks covered by insurance provided in
Paragraph 11.5 to the extent they are covered by that insurance,
except such rights as they may have to the proceeds of such
insurance held by the Owner and Contractor as trustees. The
Contractor shall require similar waivers from the
Architect/Engineer and all Subcontractors, and shall require
each of them to include similar waivers in their
subsubcontracts and consulting agreements.
11.7.2 The Owner waives subrogation against the Contractor,
Architect/Engineer, Subcontractors and Subsubcontractors
on all property and consequential loss policies carried
by the Owner on adjacent properties and under property
and consequential loss policies purchased for the Project after
its completion.
11.7.3 If the policies of insurance referred to in this Paragraph
require an endorsement to provide for continued coverage
where there is a waiver of subrogation, the owners of
such policies will cause them to be so endorsed.
11.8 PRIORITY OF INSURANCE Any insurance policy obtained by the
Contractor or its Subcontractors to fulfill the insurance
requirements of this Agreement or any subcontract agreement shall be deemed
primary insurance to any similar insurance the Owner may obtain for its
own benefit, which shall be excess or secondary but not contributing
insurance. Each such policy obtained by the Contractor or its
Subcontractors shall provide that the insurer shall defend any suit
against the Owner, its parent company, subsidiaries, operating
divisions, partners, officers, agents or employees, even if such suits are
frivolous or fraudulent. Such insurance shall provide the Owner
and Contractor the right to engage counsel who is mutually acceptable for
the purpose of defending any legal action against the Owner. The Contractor
and its Subcontractors shall indemnify the Owner for costs and expenses,
including but not limited to, attorney's fees, Owner's staff/labor costs
and travel costs incurred in support of or in anticipation of such
litigation, arising out of or incurred in the defense of actions against
the Owner arising from the Project.
ARTICLE 12
TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM
CONTRACTOR'S RESPONSIBILITIES
PERFORM CONTRACTOR'S RESPONSIBILITIES;
12.1 TERMINATION BY THE CONTRACTOR
12.1.1 Upon twenty (20) days' written notice to the Owner, the
Contractor may terminate this Agreement for any of the
following reasons:
12.1.1.1 if the Work has been stopped for a consecutive
fifteen (15) day period
12.1.1.1.1 under court order or order of other
governmental authorities having
jurisdiction;
12.1.1.1.2 as a result of the declaration of a
national emergency or other governmental
act during which, through no act or
fault of the Contractor, materials are
not available; or
12.1.1.1.3 because of the Owner's failure to pay
the Contractor in accordance with this
Agreement;
12.1.1.2 if the Work is suspended by the Owner for fifteen
(15) days;
12.1.1.3 if the Owner materially delays the Contractor in
the performance of the Work; or
12.1.1.4 if the Owner otherwise materially breaches this
Agreement, provided, however that the notice period
for termination due to Owner's failure to pay shall
be governed by 10.1.3.
12.1.2 Upon termination by the Contractor in accordance with
Subparagraph 12.1.1, the Contractor shall be entitled to
recover from the Owner payment for the cost of the work as
defined in Article 8 plus the prorata Contractor's fee for
such work, plus all demobilization costs. In addition, the
Contractor shall be paid an amount calculated as set forth in
Subparagraph 12.3.
12.2 OWNER'S RIGHT TO PERFORM CONTRACTOR'S OBLIGATIONS AND TERMINATION
BY THE OWNER FOR CAUSE
12.2.1 If the Owner determines that the Contractor is adjudged as
bankrupt, or if it makes a general assignment for the benefit
of its creditors, or if a receiver is appointed on account
of its insolvency, or if it persistently or repeatedly
refuses or fails, except in cases for which extension of
time is provided, to supply enough properly skilled workmen or
proper materials, pay its Subcontractors or suppliers, or if it
persistently performs substandard work, or persistently
disregards laws, ordinances, rules, regulations or orders of
any public authority having jurisdiction, or otherwise is
guilty of a substantial violation of a provision of the
Contract Documents, or fails to so prosecute the Work as to
insure its completion, within the time, or any extension
thereof, specified in this Agreement, then the Owner may,
without prejudice to any right or remedy and after giving the
Contractor and its surety, if any, ten (10) days' written
notice, terminate the employment of the Contractor and take
possession of the site and of all materials, equipment,
tools, construction equipment and machinery thereon owned by the
Contractor. Should the surety fail to respond within fifteen
(15) days following such notice and pursue completion of the
work with diligence acceptable to the Owner, the Owner may
arrange for completion of the Work and deduct the cost thereof
from the unpaid fees or costs incurred by Contractor, including
the cost of additional Architect/Engineer services and of Owner
contract administration costs made necessary by such default
or neglect, in which event no further payment shall then be made
by the Owner until all costs of completing the Work shall have
been paid. If the unpaid balance of the fees and costs incurred
by the Contractor exceeds the costs of finishing the Work,
including compensation for the Architect/Engineer's and
Owner's additional services made necessary thereby, such excess
shall be paid to the Contractor or its surety as applicable.
If such costs exceed the unpaid balance, the Contractor or its
surety shall pay the difference to the Owner.
12.2.2 In the event the Owner exercises its rights under
Subparagraph 12.2.1, upon the request of the Contractor
the Owner shall provide a detailed accounting of the cost
incurred by the Owner.
12.2.3 Contractor acknowledges that Owner's parent corporation, Station
Casinos, Inc. (STCI) is a publiclytraded company, that STCI's
wholly-owned subsidiaries hold gaming licenses in various
jurisdictions, and that STCI's NASDAQ membership and its
subsidiaries' gaming licenses are of vital importance to its
business. In this regard, Contractor agrees to comply with
all reasonable requests made by Owner for information
concerning Contractor's background, which may include, without
limitation, completion by Contractor of STCI's standard form
of Corporate Background Questionnaire and/or Personal Background
Questionnaire, as appropriate. Owner may terminate this
Agreement immediately upon written notice to the Contractor in
the event that:
12.2.3.1 Contractor fails to comply with information requests
as set forth in the foregoing sentence; or
12.2.3.2 Owner makes a reasonable determination that continued
association with Contractor would jeopardize STCI's
NASDAQ membership or the status of any gaming license
of any of STCI's subsidiaries.
12.3 TERMINATION BY OWNER WITHOUT CAUSE If the Owner terminates this
Agreement other than as set forth in Paragraph 12.2, the Owner shall pay
the Contractor for all Work executed plus the prorata Contractor s fee for
such work, as well as and for any proven loss, cost or expense in
connection with the Work, plus all demobilization costs. In addition, the
Contractor shall be paid an amount calculated as set forth below:
12.3.1 INTENTIONALLY OMITTED.
12.3.2 If the Owner terminates this Agreement after
commencement of the Construction Phase, the Contractor shall
be paid the cost of the work as defined in this article and
Article 8, the Contractor's Costs and the prorata portion of
the Contractor's Fee.
12.3.3 INTENTIONALLY OMITTED.
12.3.4 The Owner shall also pay to the Contractor fair
compensation, either by purchase or rental at the
election of the Owner, for any equipment retained. The Owner
shall assume and become liable for obligations, commitments
and unsettled claims that the Contractor has previously
undertaken or incurred in good faith in connection with the
Work or as a result of the termination of this Agreement.
As a condition of receiving the payments provided under this
Article 12, the Contractor shall cooperate with the Owner by
taking all steps necessary to accomplish the legal assignment
of the Contractor's rights and benefits to the Owner, including
the execution and delivery of required papers.
12.4 TERMINATION FOR CONVENIENCE OF OWNER Prior to or during the performance
of the Work, the Owner reserves the right to terminate this
Agreement for unforeseen causes not limited to court orders, loss of
funding, acts of the federal government to discontinue the Work, etc.,
that may occur. Upon such an occurrence, the following procedures will
be adhered to:
12.4.1 The Owner will immediately notify the Contractor in
writing, specifying the effective termination date of the
Contract.
12.4.2 After receipt of the notice of termination, the Contractor
shall immediately proceed with the following obligations,
regardless of any delay in determining or adjusting any amounts
due at that point in the Contract.
12.4.2.1 Stop all work.
12.4.2.2 Place no further subcontracts or orders for materials
or services.
12.4.2.3 Terminate all subcontracts.
12.4.2.4 Cancel all material and equipment orders as
applicable.
12.4.2.5 Take action that is necessary to protect and preserve
all property related to this Agreement which is in
the possession of the Contractor.
12.4.3 Within sixty (60) days of the date of the notice of
termination, the Contractor shall submit a final termination
settlement proposal to the Owner based upon costs up to the
date of termination, reasonable demobilization costs and
a reasonable portion of Contractor's Fee. If the Contractor
fails to submit the proposal within the time allowed, the
Owner may determine the amount due to the Contractor because
of the termination and shall pay the determined amount to the
Contractor.
12.4.4 If the Contractor and the Owner fail to agree on the
settlement amount, the matter will be handled as a dispute
in accordance with the procedure described in Article 13.
12.5 ASSIGNMENT In the event of termination by Owner, with or without
cause, Owner may, at its option, obtain the assignment of any or all
subcontracts. The Contractor shall not allow language in its Subcontracts
which prevents assignment of Subcontracts to Owner.
ARTICLE 13
DISPUTE RESOLUTION
13.1 INITIAL DISPUTE RESOLUTION If a dispute arises out of or relates to
this Agreement or its breach, before either party commences litigation the
parties shall endeavor to settle the dispute first through direct
discussions.
13.2 WORK CONTINUANCE AND PAYMENT Unless otherwise agreed in writing,
the Contractor shall continue the Work and maintain the approved schedules
during any discussions or legal proceedings. The Owner shall continue to
make payments in accordance with this Agreement, including timely payments of
all sums not in dispute.
13.3 ATTORNEYS FEES AND COSTS If any legal action or other
proceeding is brought by any party to this Agreement against any other party
to this Agreement for the enforcement or the interpretation of any of
the rights or provisions of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party
shall be entitled to recover its reasonable attorneys fees and all other
costs and expenses incurred in that action or proceeding, in addition
to any other relief to which it may be entitled.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 ASSIGNMENT The Contractor shall not assign its interest in this
Agreement without the written consent of the Owner.
14.2 GOVERNING LAW This Agreement shall be governed and construed
in accordance with the laws of the State of Missouri.
14.3 SEVERABILITY The partial or complete invalidity of any one or more
provisions of this Agreement shall not affect the validity or
continuing force and effect of any other provision.
14.4 AMENDMENTS AND MODIFICATIONS No modifications or
alterations of this Agreement shall be effective unless made in writing and
signed by both parties hereto.
14.5 NEGOTIATED TRANSACTION The provisions of this Agreement were
negotiated by the parties hereto and said Agreement shall be deemed to have
been drafted by both parties hereto.
14.6 NO WAIVER OF PERFORMANCE The failure of either party to insist, in
any one or more instances, on the performance of any of the terms,
covenants or conditions of this Agreement, or to exercise any of its
rights, shall not be construed as a waiver or relinquishment of such term,
covenant, condition or right with respect to further performance.
14.7 TITLES The title given to the Articles of this Agreement are for
ease of reference only and shall not be relied upon or cited for any other
purpose.
14.8 OTHER PROVISIONS
14.8.1 VENUE The venue for any lawsuit or deposition in
connection with any dispute arising out of or related to this Agreement
or the work called for in this Agreement shall be Kansas City,
Missouri.
ARTICLE 15
CONFIDENTIALITY
Contractor hereby agrees that during the term of this Agreement and
indefinitely thereafter, Contractor shall not directly or indirectly
disclose, publish or use for the benefit of Contractor or any party, except
in carrying out its duties for Owner, any "Confidential Information" (as
defined below), without the prior written consent of Owner. For the
purposes of this Agreement, Confidential Information shall include, but is
not limited to, all information, data, contracts, agreements (including,
but not limited to, this Agreement), files, records, documents,
specifications, accounts, candidate lists, ideas, forms, procedures,
techniques, expertise, attorney work-product, resumes, referral
slips, phone records, correspondence, memoranda, names, addresses,
sites, identities or telephone numbers of any contacts, payments, fees
and other similar items relating to the matters that are the subject of the
activities of Owner, or matters that are the subject of the activities
of Owner, or the Services to be performed hereunder. Contractor
acknowledges and agrees that the Confidential Information provided by
Owner is unique to Owner's business and that monetary damages for a violation
of this Agreement may not be an adequate remedy at law. Contractor agrees
that should it violate any terms or provisions of this Agreement, in
addition to monetary damages, injunctive relief in any court of competent
jurisdiction is an appropriate remedy to protect Owner's interests.
ARTICLE 16
EXISTING CONTRACT DOCUMENTS
The Contract Documents in existence at the time of execution of this
Agreement are those documents listed in Exhibit "C" attached hereto and
incorporated herein by reference.
EXHIBIT "A"
-----------
PROJECTED COSTS
---------------
1) Contract "A" - Scope of Work
Sitework 12,850,000
Offsite 4,150,000
Lowrise Building 62,000,000
Casino #1 20,700,000
Casino #2 18,850,000
General Conditions 7,392,000
-----------
Total Projected Cost of Base Project 125,942,000
2) A fixed fee of $4,650,000 is established for a projected cost range
of $121,000,000 to $131,000,000. The Owner may elect to change the
scope of Contract "A" within this range, without a change to the
Contractor's fixed fee. The Contractor is not authorized to exceed
the line item projected costs above, without written approval from
the Owner.
In the event that the final cost of the work exceeds or falls below
the cost range limits, then the fixed fee will be increased or reduced
by change order the exact amount of the variance outside of the cost
range x 4%.
3) Contract "B" - Lowrise Line 5 to 0.3 (with Boardwalk) 3,000,000
Projected Cost of Work 120,000
---------
Fixed Fee - For cost of work range of +/- 10% 3,120,000
4) Contract "C" - Casino #1/2nd Floor
Projected Cost of Work 4,000,000
Fixed Fee - For cost of work range of +/- 10% 160,000
---------
Total 4,160,000
5) Contract "D" - Casino #2/2nd Floor
Projected Cost of Work 4,250,000
Fixed Fee - For cost of work range of +/- 10% 170,000
---------
4,420,000
6) Contract "E" - Theater Connector Pad
Projected Cost of Work 580,000
Fixed Fee - For cost of work range of +/- 10% 23,200
---------
Total 603,200
7) Contract "F" - Theater Connector Building
Projected Cost of Work TBD
Fixed Fee - For cost of work range of +/- 10% TBD
--------
Total TBD
8) If for any reason including scope change, the cost of the work for
contracts "B", "C", "D", "E" or "F" exceed or fall below their
individual cost ranges, then the respective fee will be adjusted by
the exact amount of the variance outside of the cost range x 4%.
9) Nothing herein precludes the parties from negotiating GMPs or lump
sums for any portion of this work, which are then performed and paid
as such based on any new agreement or change order to this contract.
10) Schedule - The approved baseline schedule for this project is ST 22
dated March 2, 1996. The following are major substantial completion
dates:
Major Division of Work Substantial Completion
---------------------------------------------------------------------
Sitework 00-Xxx-00
Xxxxxxxx 00-Xxx-00
Xxxxxxx Xxxxxxxx to Line 7 & Lowrise Shell Building to
Line 0.3: Contracts A & B 15-Nov-96
Lowrise Central Plant/Loading Dock/HR 15-Jun-96
Casino #1/ - Contracts A & C 01-Oct-96
Casino #2/ - Contracts A & D 15-Oct-96
11) The parties understand and agree that all budgets are estimates only
and are not to be construed as guaranteed maximum prices. The
substantial completion dates set forth above are based and contingent
upon the Owner's timely and fully performing all of its obligations,
including, but not limited to, providing to the Contractor in a timely
manner those items requested in the Contractor's letters to Owner dated
July 10 and 11, 1996 (copies of which are attached to the Agreement as
Exhibit "D" and incorporated herein by reference) and the Contractor
not encountering conditions or events beyond its control. To the
extent that the substantial completion dates set forth above conflict
with any substantial completion dates contained in ST 22 dated March
2, 1996, the substantial completion dates set forth above shall
control.
