UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended October 24, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________________ to ______________________
Commission File Number 333-38093
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ISLE OF CAPRI BLACK HAWK, L.L.C. / ISLE OF CAPRI BLACK HAWK CAPITAL CORP.
------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Colorado 84-1422931
------------------- ----------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
711 Dr. Martin Luther King Jr. Blvd., Biloxi, Mississippi 39530
- ----------------------------------------------------------------- --------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (228) 436-7000
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes x No
--
<TABLE>
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ISLE OF CAPRI BLACK HAWK, L.L.C.
FORM 10-Q
INDEX
PAGE
<C><S> <C> <C>
PART I FINANCIAL INFORMATION
- ------
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED BALANCE SHEETS, OCTOBER 24, 1999
(UNAUDITED) AND APRIL 25, 1999 . . . . . . . . . . . . . . . . . .1
CONSOLIDATED STATEMENTS OF OPERATIONS FOR
THE THREE AND SIX MONTHS ENDED OCTOBER 24, 1999
AND OCTOBER 25, 1998 (UNAUDITED) . . . . . . . . . . . . . . . . .2
CONSOLIDATED STATEMENTS OF MEMBERS' EQUITY
FOR THE SIX MONTHS ENDED OCTOBER 24, 1999
(UNAUDITED). . . . . . . . . . . . . . . . . . . . . . . . . . . .3
CONSOLIDATED STATEMENTS OF CASH FLOWS FOR
THE SIX MONTHS ENDED OCTOBER 24, 1999 AND
OCTOBER 25, 1998 (UNAUDITED) . . . . . . . . . . . . . . . . . . .4
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS. . . . . . . . . . .8
PART II OTHER INFORMATION
- -------
ITEM 1. LEGAL PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . .11
ITEM 2. CHANGES IN SECURITIES . . . . . . . . . . . . . . . . . . . . . .11
ITEM 3. DEFAULTS UPON SENIOR SECURITIES . . . . . . . . . . . . . . . . .11
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY
HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
ITEM 5. OTHER INFORMATION . . . . . . . . . . . . . . . . . . . . . . . .11
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K. . . . . . . . . . . . . . . . .11
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
EXHIBIT LIST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
</TABLE>
<TABLE>
<CAPTION>
ISLE OF CAPRI BLACK HAWK, L.L.C.
CONSOLIDATED BALANCE SHEETS
(In thousands)
ASSETS October 24, April 25,
------ 1999 1999
------------ ----------
<S> <C> <C>
(Unaudited)
Current Assets:
Cash and cash equivalents. . . . . . . . . . . . . . . . . . . . . . . . $ 14,933 $ 10,917
Accounts receivable
Related parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 0
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 310
Prepaid expenses and other assets. . . . . . . . . . . . . . . . . . . . 698 511
------------ ----------
Total current assets . . . . . . . . . . . . . . . . . . . . . . . . 15,999 11,738
Property and equipment - net . . . . . . . . . . . . . . . . . . . . . . . 84,160 80,377
Other assets:
Deferred financing costs, net of accumulated amortization of $1,521 and
$1,178, respectively . . . . . . . . . . . . . . . . . . . . . . . . . 3,328 3,671
Restricted cash. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595 2,017
Prepaid deposits and other . . . . . . . . . . . . . . . . . . . . . . . 535 460
------------ ----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 104,617 $ 98,263
============ ==========
LIABILITIES AND MEMBERS' EQUITY
-------------------------------
Current liabilities:
Current maturities of long-term debt . . . . . . . . . . . . . . . . . . $ 797 $ 754
Accounts payable:
Trade. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,135 2,528
Related parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,128 5,289
Accrued liabilities:
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,144 1,707
Construction payable . . . . . . . . . . . . . . . . . . . . . . . . . 253 24
Payroll and related. . . . . . . . . . . . . . . . . . . . . . . . . . 2,528 1,434
Property and other taxes . . . . . . . . . . . . . . . . . . . . . . . 2,666 1,360
Progressive jackpots and slot club awards. . . . . . . . . . . . . . . 1,637 1,412
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,414 200
------------ ----------
Total current liabilities. . . . . . . . . . . . . . . . . . . . . . 18,702 14,708
Long-term debt, less current maturities. . . . . . . . . . . . . . . . . . 75,359 75,768
Members' equity:
Casino America of Colorado, Inc. . . . . . . . . . . . . . . . . . . . . 5,223 3,645
Blackhawk Gold, Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . 5,333 4,142
------------ ----------
Total members' equity. . . . . . . . . . . . . . . . . . . . . . . . 10,556 7,787
------------ ----------
Total liabilities and members' equity. . . . . . . . . . . . . . . . $ 104,617 98,263
============ ==========
</TABLE>
See notes to consolidated financial statements.
<TABLE>
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ISLE OF CAPRI BLACK HAWK, L.L.C.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(In thousands)
Three Months Ended Six Months Ended
October 24, October 25, October 24, October 25,
1999 1998 1999 1998
------------------- ------------------ ------------ -------------
<S> <C> <C> <C> <C>
Revenue
Casino. . . . . . . . . . . . .$ 20,651 $ - $ 39,685 $ -
Food, beverage and other. . . . 1,169 - 2,364 -
------------------- ------------------ ------------ -------------
Total Revenue . . . . . . . . 21,820 0 42,049 0
Operating Expenses
Casino. . . . . . . . . . . . . 2,837 0 5,624 0
Gaming taxes. . . . . . . . . . 3,992 0 7,803 0
Food and beverage . . . . . . . 808 0 1,679 0
Facilities. . . . . . . . . . . 762 0 1,522 0
Marketing and administrative. . 7,730 0 14,606 0
Management fees . . . . . . . . 855 0 1,715 0
Depreciation and amortization . 482 0 990 0
------------------- ------------------ ------------ -------------
Total operating expenses. . . 17,466 0 33,939 0
------------------- ------------------ ------------ -------------
Operating income. . . . . . . . 4,354 0 8,110 0
Interest expense. . . . . . . . (2,853) (559) (5,559) (1,813)
Interest income . . . . . . . . 127 89 218 539
------------------- ------------------ ------------ -------------
Net income (loss) . . . . . . .$ 1,628 $ (470) $ 2,769 $ (1,274)
=================== ================== ============ =============
</TABLE>
See notes to consolidated financial statements.
<TABLE>
<CAPTION>
ISLE OF CAPRI BLACK HAWK, L.L.C.
CONSOLIDATED STATEMENT OF MEMBERS' EQUITY
(In thousands)
Casino America of Blackhawk Total
Colorado, Inc. Gold, Ltd. Members' Equity
------------------ ----------- ----------------
<S> <C> <C> <C>
Balance, April 25, 1999. . . . . . . . . . $ 3,645 $ 4,142 $ 7,787
Net Income . . . . . . . . . . . . . . . 1,578 1,191 2,769
------------------ ----------- ----------------
Balance, October 24, 1999 (Unaudited). . . $ 5,223 $ 5,333 $ 10,556
================== =========== ================
</TABLE>
See notes to consolidated financial statements.
<TABLE>
<CAPTION>
ISLE OF CAPRI BLACK HAWK, L.L.C.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(In thousands)
Six Months Ended
October 24, October 25,
1999 1998
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<S> <C> <C>
Operating Activities:
Net Income. . . . . . . . . . . . . . . . . . . . . . . . . $ 2,769 $ (1,274)
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization . . . . . . . . . . . . . . 990 -
Amortization of deferred financing costs. . . . . . . . . 343 357
Changes in current assets and liabilities:
Accounts receivable . . . . . . . . . . . . . . . . . . (58) -
Interest receivable . . . . . . . . . . . . . . . . . . - 561
Prepaid expenses and other assets . . . . . . . . . . . (170) (53)
Accounts payable and accrued expenses . . . . . . . . . 3,698 2,311
------------------ -------------
Net cash provided by operating activities . . . . . . . . 7,572 1,902
Investing activities:
Purchase of property and equipment. . . . . . . . . . . . (4,520) (31,076)
Decrease in restricted cash . . . . . . . . . . . . . . . 1,422 27,249
Deposits and other. . . . . . . . . . . . . . . . . . . . (92) -
------------------ -------------
Net cash used in investing activities . . . . . . . . . . (3,190) (3,827)
Financing activities:
Proceeds from borrowings. . . . . . . . . . . . . . . . . - 1,486
Deferred financing costs. . . . . . . . . . . . . . . . . - (55)
Principal payments on debt. . . . . . . . . . . . . . . . (366) -
------------------ -------------
Net cash provided by (used in) financing activities . . . (366) 1,431
Net increase in cash and cash equivalents . . . . . . . . 4,016 (494)
Cash and cash equivalents at beginning of period. . . . . 10,917 547
------------------ -------------
Cash and cash equivalents at end of period. . . . . . . . $ 14,933 $ 53
================== =============
Supplemental disclosure of cash flow information:
Cash payments for:
Interest. . . . . . . . . . . . . . . . . . . . . . . . 4,950 4,875
Supplemental schedule of noncash investing and financing
activities:
Other:
Construction costs funded through accounts payable. . . 253 1,110
Discount on Notes Payable . . . . . . . . . . . . . . . - 95
</TABLE>
See notes to consolidated financial statements.
ISLE OF CAPRI BLACK HAWK, L.L.C.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
Basis of Presentation
On April 25, 1997 ("Date of Inception"), Isle of Capri Black Hawk, L.L.C.
("Isle-Black Hawk"), a Colorado limited liability company, was formed.
Isle-Black Hawk is owned by Casino America of Colorado, Inc., a wholly-owned
subsidiary of Isle of Capri Casinos, Inc., and Blackhawk Gold, Ltd., a
wholly-owned subsidiary of Nevada Gold & Casinos, Inc. The principal purpose of
Isle-Black Hawk has been to develop and operate a casino in Black Hawk,
Colorado, which opened December 30, 1998. Prior to December 30, 1998,
Isle-Black Hawk was a Development Stage Company and had not commenced gaming
operations.
On August 20, 1997, Isle-Black Hawk and Isle of Capri Black Hawk Capital
Corp., a wholly-owned subsidiary of Isle-Black Hawk that has no operations,
issued $75,000,000 of 13% First Mortgage Notes (the "First Mortgage Notes") due
2004 with Contingent Interest in order to finance the construction and
development of Isle-Black Hawk.
The rights and obligations of Casino America of Colorado, Inc. and
Blackhawk Gold, Ltd. are governed in part by the Amended and Restated Operating
Agreement of Isle-Black Hawk (the "Agreement") dated as of July 29, 1997. The
Agreement provides that Isle-Black Hawk will continue until December 31, 2096,
or until such date that dissolution may occur. Pursuant to the Agreement,
Casino America of Colorado, Inc. contributed cash, land purchase rights and
development costs to Isle-Black Hawk and Blackhawk Gold, Ltd. contributed land
to Isle-Black Hawk.
On July 29, 1997, Casino America of Colorado, Inc., Isle of Capri Casinos,
Inc., Blackhawk Gold, Ltd., and Nevada Gold & Casinos, Inc. also entered into a
Members Agreement (the "Members Agreement") which addressed the development of
Isle-Black Hawk, management of Isle-Black Hawk, additional capital
contributions, and other matters. Casino America of Colorado, Inc. has an
ownership interest in Isle-Black Hawk of 57% and Blackhawk Gold, Ltd. has an
ownership interest in Isle-Black Hawk of 43%. Profits and losses of Isle-Black
Hawk are allocated in proportion to ownership interests.
Isle-Black Hawk is currently constructing a hotel containing
approximately 235 rooms for approximately $29.0 million, including a contract
for new construction costs of approximately $20.0 million that was signed in
October 1999. Construction work on the hotel began in July 1999 and is
scheduled to be completed in late summer 2000. Isle of Capri Casinos, Inc. is
assisting Isle-Black Hawk by financing the development of this hotel and
plans to loan a total of $5.0 million with interest payable in cash, of which
$3.3 million had been funded as of October 24, 1999, and another $5.0 million
with interest payable in kind (by issuance of additional notes). Additionally,
Isle of Capri Casinos, Inc. has agreed to contribute up to a combined $10.0
million in additional equity to supplement funds generated from Isle-Black
Hawk operations to complete the hotel. Nevada Gold & Casinos, Inc. may
participate in making a loan or contributing equity.
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments, consisting
of normal recurring adjustments, for the six and three month period ended
October 24, 1999, are not necessarily indicative of the results that may be
expected for the fiscal year ending April 30, 2000. For further information,
refer to the consolidated financial statements and footnotes thereto included in
Isle-Black Hawk's annual report on Form 10-K for the year ended April 25, 1999.
The consolidated financial statements of Isle-Black Hawk include the
accounts of Isle of Capri Black Hawk, L.L.C. and its subsidiary, Isle of Capri
Black Hawk Capital Corp. All material intercompany balances and transactions
have been eliminated in consolidation.
The preparation of financial statements in conformity with generally
accepted accounting principles necessarily requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements as well as revenues and expenses during the reporting period. Actual
amounts when ultimately realized could differ from those estimates.
<PAGE>
ISLE OF CAPRI BLACK HAWK, L.L.C.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
2. Property and Equipment
Property and equipment is recorded at cost except for land contributed by
Blackhawk Gold, Ltd., which is recorded at its appraised value. Depreciation
began accumulating upon the commencement of gaming operations and is computed
using the straight-line method over the following estimated useful lives:
<TABLE>
<CAPTION>
Years
-----
<S> <C>
Slot Machines 3
Furniture, fixtures, and equipment 5-10
Buildings and improvements 39.5
</TABLE>
Effective April 26, 1999, Isle-Black Hawk increased its estimate of the
useful lives of all land-based buildings and improvements from 25 years to 39.5
years to more appropriately reflect the expected useful lives of those assets.
Isle-Black Hawk also reduced its estimate of the useful lives of slot machines
from 5 years to 3 years due to technological changes. These two changes
increased net income for the three and six months ended October 24, 1999, by
$215,000 and $481,000, respectively. Excluding the changes in useful lives, net
income for the three and six months ended October 24, 1999, would have been
$1,414,000 and $2,288,000, respectively.
3. Other Assets
Deferred Financing Costs
The costs of issuing long-term debt have been capitalized and are being
amortized using the effective interest method over the term of the related debt.
Restricted Cash
Restricted cash represents cash proceeds from the sale of the First
Mortgage Notes held in trust by The Bank of New York, as trustee. These funds
are held in three separate accounts (Construction Disbursement, Completion
Reserve and Interest Reserve), with usage restricted by an indenture between
Isle-Black Hawk and the trustee, dated August 20, 1997, in connection with the
issuance of the First Mortgage Notes (the "Indenture"). Amounts in the
Construction Disbursement and Completion Reserve accounts contained
approximately $0.6 million at October 24, 1999.
4. Long-term debt
Long-term debt consists of the following:
<TABLE>
<CAPTION>
October 24, April 25,
1999 1999
------------ ----------
(In thousands)
<S> <C> <C>
11% note payable, issued by Isle of Capri Black Hawk, L.L.C., due August 2004;
non-recourse to Isle of Capri Casinos, Inc. . . . . . . . . . . . . . . . . . 1,156 1,522
13% First Mortgage Notes, issued by Isle of Capri Black Hawk, L.L.C., due
August 2004; non-recourse to Isle of Capri Casinos, Inc.. . . . . . . . . . . 75,000 75,000
------------ ----------
76,156 76,522
Less: current maturities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 797 754
------------ ----------
Long-term debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $75,359 $ 75,768
============ ==========
</TABLE>
On August 20, 1997, Isle-Black Hawk issued $75 million of 13% First
Mortgage Notes with Contingent Interest, due August 31, 2004, that is
non-recourse debt to Isle of Capri Casinos, Inc. Interest on the First Mortgage
Notes is payable semi-annually on February 28 and August 31 of each year,
commencing February 28, 1998. Additionally, contingent interest is payable on
the First Mortgage Notes on each interest payment date, in an aggregate
principal amount of 5% of Isle-Black Hawk's Consolidated Cash Flow (as defined
in the Indenture), provided that no contingent interest was payable prior to
commencement of operations and may, under certain circumstances, be deferred.
Isle of Capri Casinos, Inc. previously supplied a completion capital commitment
to Isle-Black Hawk, which lapsed in accordance with its terms.
On August 31, 1999, Isle-Black Hawk deferred its first contingent interest
payment totaling $516,000. This amount was fully accrued as of August 31, 1999.
The amount of contingent interest expense recorded for the three and six months
ended October 24, 1999, were $248,000 and $466,000, respectively.
The First Mortgage Notes are redeemable at the option of Isle-Black Hawk,
in whole or in part, at any time on or after August 1, 2001, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest to the redemption date, if redeemed during the
12-month period beginning on August 31 of the years indicated below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2001. . . . . . . . . . 106.500%
2002. . . . . . . . . . 103.200%
2003 and thereafter . . 100.000%
</TABLE>
ISLE OF CAPRI BLACK HAWK, L.L.C.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Beginning with the first operating year after Isle-Black Hawk begins gaming
operations, Isle-Black Hawk will be required to offer to purchase, at the price
of 101% of the aggregate principal amount thereof, the maximum principal amount
of the Notes that may be purchased with 50% of Isle-Black Hawk's excess cash
flow, as defined.
Isle-Black Hawk obtained a letter of credit, as a requirement to obtain a
building permit from the City of Black Hawk (the "City"). The letter of
credit, totaling $2.1 million, can be drawn upon by the City if for any reason
Isle-Black Hawk fails to complete the hotel project. The letter of credit is
secured by a deposit held in trust of $1.1 million, which was funded by Isle of
Capri Casinos, Inc., and the balance is secured by Isle of Capri Casinos, Inc.'s
open line of credit with the bank.
Substantially all of Isle-Black Hawk's assets are pledged as collateral for
long-term debt. At October 24, 1999, Isle-Black Hawk was in compliance with all
debt covenants.
5. Related Party Transactions
Management Agreement
On April 25, 1997, Isle-Black Hawk entered into a Management Agreement,
which was subsequently amended and restated on July 29, 1997 (the "Management
Agreement"), with Isle of Capri Casinos, Inc., which manages the casino in
exchange for a fee. The management fee is equal to two percent of revenues as
defined, plus ten percent of operating income, but not to exceed four percent of
revenues. The management fee became effective upon commencement of casino
operations.
Lease Agreement
On January 2, 1998, Casino America of Colorado, Inc. acquired
approximately 0.7 acres of property contiguous to the property being developed
by Isle-Black Hawk for expansion of the entrance and signage (the "Acquired
Property"). On January 2, 1998, Isle-Black Hawk, as lessee, entered into a
lease agreement with Casino America of Colorado, Inc. for the Acquired Property
and has utilized the Acquired Property in developing Isle-Black Hawk. The lease
payment consists of $102,000 paid upon the inception of the lease and $17,000
per month, commencing July 15, 1998 and continuing until December 31, 2002. The
term of the lease is through December 31, 2002, and thereafter on a year to year
basis. During the term of the lease, Isle-Black Hawk has the right to purchase
the property for $1,500,000 plus all interest and out-of-pocket costs that
Casino America of Colorado, Inc. incurred in connection with the purchase and
ownership of the land, less any payments made by Isle-Black Hawk, as lessee.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
The following discussion should be read in conjunction with, and is qualified in
its entirety by, Isle-Black Hawk's financial statements, including the notes
thereto, and other financial information included elsewhere in this report.
The following discussion includes "forward-looking statements" within the
meaning of section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. In particular,
statements concerning the effects of increased competition in the Black Hawk
market, the effects of regulatory and legislative matters, Isle-Black Hawk's
plans to make capital investments at its facility, including, without
limitation, the development of its hotel facility, is forward-looking
statements. Although Isle-Black Hawk believes that the expectations are
reasonable, there can be no assurance that such expectations are reasonable or
that they will be correct. Actual results may vary materially from those
expected. Important factors that could cause actual results to differ with
respect to Isle-Black Hawk's planned capital expenditures principally include a
lack of available capital resources, construction and development risks such as
shortages of materials and labor and unforeseen delays resulting from a failure
to obtain necessary approvals.
General
Isle-Black Hawk was organized on April 25, 1997, and from that time until
the opening of the casino on December 30, 1998, Isle-Black Hawk's activities
were limited to the design, construction and opening of the casino. Isle-Black
Hawk includes a 43,000 square-foot gaming facility on a single floor with
approximately 1,100 slot machines, 14 table games, on-site covered parking for
1,100 vehicles and various other amenities. Isle-Black Hawk's results of
operations for the fiscal year ended April 25, 1999 include four fiscal months
of gaming operations. There is a lack of comparable information between fiscal
years 2000, 1999 and 1998 because Isle-Black Hawk was in the development stage
during all of fiscal 1998 and did not have any historical operating results
other than interest expense on Isle-Black Hawk's outstanding indebtedness,
interest income on Isle-Black Hawk's restricted cash, the receipt of certain
capital contributions and the capitalization of certain costs until it commenced
operations on December 30, 1998, during the third quarter of fiscal 1999. The
following discussion focuses on Isle-Black Hawk's three fiscal months of gaming
operations during the second quarter of fiscal 2000 and the six fiscal months
during the fiscal 2000 year to date.
Isle of Capri Black Hawk Capital Corp. is a wholly owned subsidiary of
Isle-Black Hawk and was incorporated for the sole purpose of serving as
co-issuer of the First Mortgage Notes. Isle of Capri Black Hawk Capital Corp.
has not and will not have any operations or material assets or revenues.
Isle-Black Hawk believes that its historical results of operations may not
be indicative of its future results of operations because it has only operated
for seven months, and due to the substantial present and expected future
increase in competition for gaming customers in its market, as new casinos open
and existing casinos add to or enhance their facilities.
Results of Operations
Three Fiscal Months Ended October 24, 1999
Total revenue for the quarter ended October 24, 1999, was $21.8 million,
which included $20.7 million of casino revenue and $1.2 million of food,
beverage and other revenue. Revenue does not reflect the retail value of any
complimentaries.
Casino operating expenses for the quarter ended October 24, 1999, totaled
$2.8 million, or 13.7% of casino revenue. These expenses are primarily
comprised of salaries, wages and benefits and other operating expenses of the
casino.
State and local gaming taxes paid in Colorado totaled $4.0 million for the
quarter ended October 24, 1999, which is at a rate consistent with Colorado's
gaming tax rate for the applicable fiscal year.
Food, beverage and other expenses totaled $0.8 million for the quarter
ended October 24, 1999. These expenses consist primarily of the cost of goods
sold, salaries, wages and benefits and operating expenses of these departments.
Food and beverage operating expenses as a percentage of food, beverage and other
revenues were 69.1% for the quarter ended October 24, 1999.
Facilities expenses totaled $0.8 million for the quarter ended October 24,
1999. These expenses include salaries, wages and benefits, operating expenses of
insurance, housekeeping and general maintenance of the facilities.
Marketing and administrative expenses totaled $7.7 million, or 35.4% of
total revenue, for the quarter ended October 24, 1999. Marketing expenses
include salaries, wages and benefits of the marketing and sales departments, as
well as promotions, advertising, special events and entertainment.
Administrative expenses include administration and human resource department
expenses, rent (including $0.9 million related to equipment leases),
professional fees and property taxes.
Depreciation and amortization expense was $0.5 million for the quarter
ended October 24, 1999. These expenses relate to property and equipment.
Interest expense was $2.7 million for the quarter ended October 24, 1999,
net of capitalized interest of $0.1 million and interest income of $0.1 million.
Interest expense primarily relates to indebtedness incurred in connection with
the acquisition of property, equipment and leasehold improvements. This compares
to interest expense of $0.4 million, net of capitalized interest of $2.1 million
and interest income of $0.1 million, for the quarter ended October 25, 1998.
On August 31, 1999, Isle-Black Hawk deferred its first contingent interest
payment totaling $516,000. The amount of contingent interest expense recorded
for the quarter ended October 24, 1999 was $248,000. These amounts were both
fully accrued as of October 24, 1999.
Six Fiscal Months Ended October 24, 1999
Total revenue for the six fiscal months ended October 24, 1999, was $42.0
million, which included $39.7 million of casino revenue and $2.4 million of
food, beverage and other revenue. Revenue does not reflect the retail value of
any complimentaries.
Casino operating expenses for the six fiscal months ended October 24, 1999,
totaled $5.6 million, or 14.2% of casino revenue. These expenses are primarily
comprised of salaries, wages and benefits and other operating expenses of the
casino.
State and local gaming taxes paid in Colorado totaled $7.8 million for the
six fiscal months ended October 24, 1999, which is at a rate consistent with
Colorado's gaming tax rate for the applicable fiscal year.
Food, beverage and other expenses totaled $1.7 million for the six fiscal
months ended October 24, 1999. These expenses consist primarily of the cost of
goods sold, salaries, wages and benefits and operating expenses of these
departments. Food and beverage operating expenses as a percentage of food,
beverage and other revenues were 71.0% for the six fiscal months ended October
24, 1999.
Facilities expenses totaled $1.5 million for the six fiscal months ended
October 24, 1999. These expenses include salaries, wages and benefits, operating
expenses of insurance, housekeeping and general maintenance of the facilities.
Marketing and administrative expenses totaled $14.6 million, or 34.7% of
total revenue, for the six fiscal months ended October 24, 1999. Marketing
expenses include salaries, wages and benefits of the marketing and sales
departments, as well as promotions, advertising, special events and
entertainment. Administrative expenses include administration and human resource
department expenses, rent (including $1.8 million related to equipment leases),
professional fees and property taxes.
Depreciation and amortization expense was $1.0 million for the six fiscal
months ended October 24, 1999. These expenses relate to property and equipment.
Interest expense was $5.4 million for the six fiscal months ended October
24, 1999, net of capitalized interest of $0.4 million and interest income of
$0.2 million. Interest expense primarily relates to indebtedness incurred in
connection with the acquisition of property, equipment and leasehold
improvements. This compares to interest expense of $1.8 million, net of
capitalized interest of $3.2 million and interest income of $0.5 million, for
the six fiscal months ended October 25, 1998.
On August 31, 1999, Isle-Black Hawk deferred its first contingent interest
payment totaling $516,000. The amount of contingent interest expense recorded
for the six months ended October 24, 1999 was $466,000. These amounts were both
fully accrued as of October 24, 1999.
Liquidity and Capital Resources
At October 24, 1999, Isle-Black Hawk had cash and cash equivalents of $14.9
million, compared to $10.9 million at April 25, 1999. The increase in cash is
primarily a result of cash flow from operating activities. During the six fiscal
months ended October 24, 1999, Isle-Black Hawk's operating activities provided
$7.6 million of cash.
Isle-Black Hawk invested $4.5 million in property and equipment in the six
fiscal months ended October 24, 1999, primarily for the completion of the casino
facility and the continued design and development of the hotel.
Isle-Black Hawk anticipates that a significant portion of its principal
near-term capital requirements will relate to the construction of a hotel
containing approximately 235 rooms for approximately $29.0 million, including a
contract for new construction costs of approximately $20.0 million that was
signed in October 1999. Construction work on the hotel began in July 1999 and
is scheduled to be completed in late summer 2000. Isle of Capri Casinos, Inc.
is assisting Isle-Black Hawk by financing the development of this hotel and
plans to loan $5.0 million with interest payable in cash, of which $3.3 million
had been funded as of October 24, 1999, and another $5.0 million with interest
payable in kind (by issuance of additional notes). Additionally, Isle of Capri
Casinos, Inc. has agreed to contribute up to a combined $10.0 million in
additional equity to supplement funds generated from Isle-Black Hawk operations
to complete the hotel. Nevada Gold & Casinos, Inc. may participate in making a
loan or contributing equity.
Isle-Black Hawk's development plans are subject to obtaining permits,
licenses and approvals from appropriate regulatory and other agencies. In
addition these plans are preliminary, subject to continuing refinement or
otherwise subject to change.
Isle-Black Hawk anticipates that additional capital improvements
approximating $0.9 million will be made during the remainder of fiscal 2000 to
maintain its existing facility and remain competitive in its market. Isle-Black
Hawk expects that available cash and cash from future operations, as well as
borrowings from Isle of Capri Casinos, Inc. and the contributions from Isle of
Capri Casinos, Inc. and Nevada Gold & Casinos, Inc., will be adequate to fund
future expansion, planned capital expenditures, service debt and meet working
capital requirements. There is no assurance that Isle-Black Hawk will have the
capital resources to make all of the expenditures described above or that
planned capital investments will be sufficient to allow it to remain competitive
in its existing market. In addition, the indenture restricts, among other
things, Isle-Black Hawk's ability to borrow money, make capital expenditures,
use assets as security in other transactions, make restricted payments or
restricted investments, incur contingent obligations, sell assets and enter into
leases and transactions with affiliates. In addition, Isle-Black Hawk is
required to make significant interest payments semi-annually on its First
Mortgage Notes, which will include additional contingent interest.
Isle-Black Hawk is highly leveraged and may be unable to obtain additional
debt or equity financing on acceptable terms. As a result, limitations on
Isle-Black Hawk's capital resources could delay or cause the abandonment of
certain plans for capital improvements.
Year 2000 Compliance
Isle-Black Hawk has completed the evaluation of its information technology
infrastructure for Year 2000 issues. The evaluation process included a detailed
inventory of all computer hardware and software systems, detailed vendor
communication and the creation of a concise Year 2000 plan. All of Isle-Black
Hawk's significant systems infrastructure is currently Year 2000 compliant.
Isle-Black Hawk has received assurances that it believes are reasonable from
vendors of material products used by Isle-Black Hawk, that their products are
Year 2000 compliant. Isle-Black Hawk has not incurred and does not intend to
incur any material costs to modify its information technology infrastructure in
order to be Year 2000 compliant. All software needed will be provided by the
respective information technology vendor at no charge to Isle-Black Hawk.
Isle-Black Hawk has completed all necessary software modifications.
Isle-Black Hawk and its results of operations and financial condition could
be adversely affected by a failure of one or more of the third parties with
which it does business to satisfactorily address and resolve any Year 2000
issues. In addition, Year 2000 difficulties experienced by public utilities, the
banking system, the postal system or other similar infrastructure enterprises
could adversely affect Isle-Black Hawk. However, Isle-Black Hawk believes that
the impact of such problems on Isle-Black Hawk would be the same as on other
businesses in the same area or areas. Isle-Black Hawk believes these risks range
from slight financial malfunctions to, in a worst case scenario, an extensive
and costly inability to communicate with customers and suppliers. Isle-Black
Hawk has completed its program, which it believes to be effective to resolve
all of the Company's significant Year 2000 issues.
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
--------
A list of the exhibits included as part of this Form 10-Q is
set forth in the Exhibit Index that immediately precedes such
exhibits, which is incorporated herein by reference.
(b) Reports on Form 8-K.
----------------------
During the quarter ended October 24, 1999, the
Company Filed the following reports on Form 8-K:
None.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ISLE OF CAPRI BLACK HAWK, L.L.C.
Dated: December 7, 1999 /s/ Rexford A. Yeisley
--------------------------
Rexford A. Yeisley, Chief Financial Officer
(Principal Financial and Accounting Officer)
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
10.12 Design/Build Agreement between Haselden Construction, Inc.
and Isle of Capri Black Hawk, L.L.C.
27 Financial Data Schedule
8302781.5 December 1,1999 9:36C
THIS DOCUMENT WAS DONE USING OUTLINE
DESIGN-BUILD AGREEMENT
BY AND BETWEEN
ISLE OF CAPRI BLACK HAWK L.L.C., AS OWNER
AND
HASELDEN CONSTRUCTION, INC., AS CONTRACTOR
<PAGE>
TABLE OF CONTENTS
||
RECITALS 1
ARTICLE 1: CONTRACTOR'S SERVICES 1
1.1 GENERAL DESCRIPTION OF THE WORK 1
1.2 INTENT OF AGREEMENT 1
1.3 PRIORITY OF DOCUMENTS 2
1.4 GENERAL REQUIREMENTS 2
1.4.1 Performance of the Work 2
1.4.2 Professional Standards 2
1.4.3 Licensing and Other Qualifications 2
1.4.4 Sufficient Personnel 3
1.4.5 Contractor's Key Personnel 3
1.5 NATURE OF DESIGN-BUILD AGREEMENT 3
1.5.1 Design and Engineering Generally 3
1.5.2 Construction Documents 3
1.5.3 Contractor's Architect 3
1.6 DESIGN AND ENGINEERING WORK 4
1.6.1 Design Schedule 4
1.6.2 Compliance with Laws 4
1.7 CHANGES IN THE WORK 4
1.7.1 Changes 4
1.7.2 Contract Adjustments 4
1.7.3 No Contractor Changes 4
1.7.4 Change Orders 4
1.7.5 Construction Change Directive 5
1.7.6 Necessity for Prior Written Authorization 6
1.7.7 Disputes Reflecting Changes in the Work 6
1.7.8 Compliance with Construction Documents 7
1.7.9 Authorized Change Order Signatory 7
1.7.10 Restriction on Time Extension 7
1.8 CONTRACTOR'S REPRESENTATIONS 7
1.9 "AS-BUILT" DRAWINGS 8
1.9.1 Maintenance of Drawings at the Site 8
1.9.2 Mylar Drawings and "As-Built" Survey 8
ARTICLE 2: CONSTRUCTION OF THE WORK;SUBSTANTIAL COMPLETION; EXCUSABLE EVENTS;
WORKMANSHIP; COMPLIANCE WITH LAWS 8
2.1 SCHEDULES AND SUBMITTALS 8
2.1.1 The Schedule 8
2.1.2 Submission of Shop Drawings, Details, Samples and
Data 8
2.1.3 Material Purchasing Schedule 9
2.1.4 Information as to Progress of Work 9
2.1.5 Revisions to Schedule Due to Owner's Suspension
of Work 9
2.2 TIME AND PROSECUTION OF WORK 9
2.2.1 Time of the Essence 9
2.2.2 Notice to Proceed 9
2.2.3 Substantial Completion 9
2.2.4 Owner's Right to Direct Overtime and Multiple Shifts 10
2.2.5 Owner's Right to Request Expedition 10
2.2.6 Owner's Right to Require Additional Labor 10
2.3 SUBSTANTIAL COMPLETION OF WORK 10
2.3.1 Definition of Substantial Completion 10
2.3.2 Further Conditions on Substantial Completion 11
2.4 DELAYED/EARLY COMPLETION 11
2.4.1 Liquidated Damages 11
2.4.2 Early Completion Incentive 12
2.5 EXCUSABLE EVENTS 12
2.5.1 Adjustments in Schedule Because of Excusable Event 12
2.5.2 Adjustments in Guaranteed Maximum Price Because of
Excusable Event 13
2.5.3 Excusable Events Defined 14
2.5.4 Rights Limited 14
2.5.5 Contractor's Acknowledgment of Extreme Weather
Conditions 14
2.6 WORKMANSHIP AND PERFORMANCE OF WORK 15
2.6.1 Site Conditions 15
2.6.2 Local Conditions 15
2.6.3 Contractor's Responsibility for Proper Layout 15
2.6.4 Contractor's Workmanship Standard 16
2.6.5 Contractor's Work in Areas Prepared by Others 16
2.6.6 Owner's Inspection Rights 16
2.6.7 Storage on Site 16
2.6.8 Owner's Access to the Work 16
2.6.9 Rejected Workmanship and Material During
Construction 17
2.6.10 Removal or Tearing Out Work to Inspect 17
2.6.11 Responsibility 17
2.6.12 Control 17
2.6.13 Use of Site 17
2.6.14 Cutting & Patching 17
2.7 COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS 18
2.7.1 Taxes 18
2.7.2 Legal Requirements 18
2.7.3 Permits and Licenses 18
2.7.4 Building Inspections 18
2.7.5 Corrections of Legal Violations 18
2.7.6 Ownership of Design Documents 18
2.7.7 Patents and Other Proprietary Rights 19
2.8 CONTRACTOR'S SUBCONTRACTORS 19
2.8.1 Bidding Process 19
2.8.2 Identification of Subcontractors 20
2.8.3 Rejection by Owner of Subcontractors 20
2.8.4 Liquidated Damages In Subcontracts 21
2.8.5 Contingent Assignment 21
2.9 LABOR 21
2.9.1 Contractor's Duty to Staff the Work 21
2.9.2 Owner's Approval of Labor Force 21
2.9.3 Notice of Occurrence With Respect to Employees 21
2.10 MAINTENANCE OF THE SITE AND PROTECTION OF PERSONS AND PROPERTY 22
2.10.1 Safety 22
2.10.2 Safety of Persons and Property 22
2.10.3 Placement of Signs 23
2.10.4 Orderly Maintenance of Site 23
2.10.5 Liability for Work in Place and on the Site 24
2.10.6 No Unreasonable Interference with Owner's Operations 24
2.10.7 Protection of and No Interference with Adjoining
Properties 24
2.11 USE OF OWNER'S FACILITIES 24
2.11.1 Prohibition of Use Without Consent 24
2.11.2 Indemnification Against Loss 24
ARTICLE 3: REPRESENTATIVES OF OWNER AND CONTRACTOR 25
3.1 DESIGNATION OF OWNER'S AGENT AND CONTRACTOR'S
AGENT 25
3.2 RIGHTS OF OWNER'S AGENT 25
ARTICLE 4: OWNER'S RIGHT TO OUTSIDE INSPECTION 26
4.1 RIGHT TO DESIGNATE 26
4.2 LIMITATION OF OWNER'S LIABILITY 26
ARTICLE 5: OWNER'S RIGHT OF ENTRY AND OCCUPANCY FOLLOWING SUBSTANTIAL
COMPLETION 26
5.1 RIGHT TO ENTER 26
5.2 NO INTERFERENCE WITH CONTRACTOR'S REMAINING
WORK 26
5.3 CONSTRUCTION MEANS & METHODS 27
5.4 REJECTION OF WORK 27
5.5 OWNER'S RIGHT TO STOP THE WORK 27
5.6 OWNER'S RIGHT TO CARRY OUT THE WORK 27
5.7 OWNER'S RIGHTS NOT LIMITED 28
5.8 OWNER APPROVALS 28
5.9 OWNER INFORMATION 28
ARTICLE 6: PUNCH LISTS AND FINAL COMPLETION 28
6.1 PREPARATION OF PUNCH LIST 28
6.2 FINAL COMPLETION 29
ARTICLE 7: CONTRACTOR'S WARRANTY OF CONSTRUCTION 29
7.1 WARRANTY 29
7.1.1 Warranty with Respect to Professional Services 29
7.1.2 Warranty with Respect to Construction Work 29
7.1.3 Warranty With Respect to Materials and Equipment 29
7.1.4 Period of Warranty 30
7.2 EXTENT OF WARRANTY 30
7.3 NON-APPLICABILITY OF WARRANTY 30
7.4 SURVIVAL OF WARRANTY 30
7.5 ASSIGNMENT OF WARRANTIES 30
7.6 MANUALS AND TRAINING 31
ARTICLE 8: CONTRACT SUM 31
8.1 TOTAL COMPENSATION 31
8.1.1 Cost of the Work 31
8.1.2 Contractor's Fee 31
8.2 CONTRACTOR'S GUARANTEED MAXIMUM PRICE 31
8.2.1 Guaranteed Maximum Price 31
8.2.2 Owner Furnished FF&E Excluded 32
8.3 EXCESS AND SAVINGS 32
8.3.1 Excess Cost Above Guaranteed Maximum Price 32
8.3.2 Savings Below Guaranteed Maximum Price 32
8.4 COST OF THE WORK 32
8.4.1 Salaries or Wages 33
8.4.2 Overtime Payments 33
8.4.3 Contractor Self-Perform Trade Work 33
8.4.4 Cost of Employee Benefits 33
8.4.5 Travel and Subsistence Expenses 33
8.4.6 Cost of Material and Supplies 33
8.4.7 Contractor's Architect's Fees 33
8.4.8 Subcontractor's Payments 34
8.4.9 Cost of Tools, Equipment and Facilities 34
8.4.10 Cost of Major Construction Equipment 34
8.4.11 Insurance Premiums 34
8.4.12 Taxes 34
8.4.13 Fees, Royalties and Deposits 34
8.4.14 Uninsurable Losses 34
8.4.15 Communication Expenses 34
8.4.16 General Conditions 35
8.4.17 Clean-up 35
8.4.18 Emergency 35
8.4.19 Other Agreement Cost 35
8.4.20 Pre-Approved Cost 35
8.5 CREDITS TO COST OF THE WORK 35
8.5.1 Proceeds of Sale 35
8.5.2 Discounts and Refunds 35
8.5.3 Material Retained by Contractor 35
8.5.4 Deposits 35
8.5.5 Proceeds of Sale of Excess Equipment 35
8.6 COST NOT TO BE REIMBURSED 36
8.6.1 Office Personnel Expenses 36
8.6.2 Office Expenses 36
8.6.3 Capital Expenses 36
8.6.4 Unpermitted Rental Cost 36
8.6.5 Overhead and General Expenses 36
8.6.6 Warranty and Corrective Work 36
8.6.7 Preconstruction 36
8.6.8 Unincluded Items 36
8.6.9 Excluded Items 36
8.6.10 Guaranteed Maximum Price Excess 36
8.7 AUDIT 36
8.7.1 Right to Conduct Audit 36
8.7.2 Imposition of Requirement on Subcontractors 37
ARTICLE 9: PAYMENT OF COMPENSATION 37
9.1 APPLICATIONS FOR PROGRESS PAYMENTS 37
9.1.1 Time of Submission 37
9.1.2 Contents of Application for Payment and Attachments 37
9.2 CONTRACTOR'S ARCHITECT CERTIFICATE 39
9.3 DEDUCTIONS 39
9.4 WITHHOLDING 39
9.4.1 Right to Withhold 39
9.4.2 Conditions for Release of Withheld Amounts 40
9.5 RETAINAGE 40
9.5.1 Final Inspection 40
9.5.2 Achievement of Final Completion 40
9.5.3 Remaining Obligations 40
9.5.4 No Further Retainage Withheld 41
9.6 DETERMINATION OF PROGRESS PAYMENTS 41
9.6.1 Schedule of Values 41
9.6.2 Percentage Completion 41
9.6.3 Progress Payments 41
9.7 PAYMENT OF PROGRESS PAYMENTS 42
9.8 FINAL PAYMENT 42
9.9 PAYMENT NOT ACCEPTANCE 42
9.10 RELEASE OF CLAIMS 43
9.11 CONTRACTOR'S LIABILITY FOR EXCESS OVER GUARANTEED MAXIMUM PRICE
43
9.12 TITLE 43
9.13 INTEREST RATE 43
ARTICLE 10: INDEMNIFICATION 43
10.1 Indemnity 43
10.2 No Limitation 44
10.3 Liens 44
10.4 Lost Profits 44
ARTICLE 11: INSURANCE 44
11.1 CONTRACTOR'S INSURANCE 44
11.1.1 Contractor's Insurance Certificates 44
11.1.2 Contractor's Liability Insurance 45
11.2 SCHEDULE OF INSURANCE COVERAGES 45
11.2.1 Worker's Compensation Insurance 45
11.2.2 Commercial General Liability Insurance 45
11.2.3 Comprehensive Automobile Liability Insurance 46
11.2.4 Umbrella Liability Insurance 46
11.3 OWNER'S BUILDER'S RISK INSURANCE 47
11.3.1 Builder's Risk Policy 47
11.3.2 Deductible 47
11.3.3 Property of Others 47
11.3.4 Builder's Risk Limits of Liability 47
11.3.5 Builder's Risk Deductibles 47
11.3.6 Owner's Use of Project 47
11.4 PROJECT ERRORS AND OMISSIONS INSURANCE 47
11.5 NO COVERAGE CHANGES 48
11.6 WAIVER OF CLAIMS 48
ARTICLE 12: DEFAULT 48
12.1 Termination by Owner for Cause 48
12.2 Termination by Contractor for Cause 49
ARTICLE 13: TERMINATION BY OWNER WITHOUT CAUSE 50
ARTICLE 14: INDEPENDENT CONTRACTOR 50
ARTICLE 15: DISPUTES 51
15.1 Dispute Resolution 51
ARTICLE 16: HAZARDOUS SUBSTANCES 51
16.1 Hazardous Substances. 51
ARTICLE 17: MISCELLANEOUS PROVISIONS 52
17.1 GOVERNING LAW 52
17.2 ASSIGNMENT AND SUCCESSORS 52
17.2.1 No Assignment by Contractor 52
17.2.2 Agreement Binding on Successors and Assigns 52
17.3 NOTICES 53
17.4 CUMULATIVE RIGHTS AND REMEDIES 53
17.5 WAIVER 53
17.6 CAPTIONS OR HEADINGS 54
17.7 CALENDAR DAYS 54
17.8 PARTIES TO ACT REASONABLY 54
17.9 SEVERABILITY OF PROVISIONS 54
17.10 ENTIRE AGREEMENT 54
17.11 NO THIRD PARTY BENEFICIARIES 54
17.12 AUTHORITY TO EXECUTE 55
17.13 INCORPORATION BY REFERENCE 55
EXHIBITS
Exhibit A - Definitions
Exhibit B - Site
Exhibit C - Contractor's Key Personnel
Exhibit D - Contract Documents
Exhibit E - Schedule
Exhibit F - Owner's Permits and Licenses
Exhibit G - Equipment/Material Responsibility Matrix
Exhibit H - Subcontractors||
<PAGE>
DESIGN-BUILD AGREEMENT
THIS DESIGN-BUILD AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into this ____ day of October, 1999 by and
between HASELDEN CONSTRUCTION, INC., a Colorado corporation ("Contractor"), and
ISLE OF CAPRI BLACK HAWK L.L.C., a Colorado limited liability company ("Owner").
Unless otherwise defined within this Agreement, capitalized terms used herein
shall have the meanings ascribed to such terms in Exhibit A attached hereto.
RECITALS
--------
WHEREAS, Owner holds fee simple title to the tract of land in Gilpin
County, State of Colorado which is described on Exhibit B attached hereto (the
"Site") and intends to have designed and constructed thereon the Project;
WHEREAS, Contractor has agreed, as set forth in this Agreement, to
provide all architectural, engineering and general contracting services,
materials, furnishings, tools, equipment, labor, and all other professional and
non-professional services required to complete the Work described in this
Agreement, and has agreed further that Owner's cost for all such Work shall in
no event exceed the Guaranteed Maximum Price established in this Agreement; and
WHEREAS, Contractor has agreed, as set forth in this Agreement, to
provide and perform all of the Work by hiring its own architectural and
engineering firms, by retaining other consultants and subcontractors, and by
performing other portions of the Work on an "in-house" basis, all as provided
more specifically in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises set
forth in this Agreement and the faithful performance by each of them, the
parties agree as follows:
I. ARTICLE : CONTRACTOR'S SERVICES
A. GENERAL DESCRIPTION OF THE WORK
The "Work" shall mean and refer to all architectural, engineering,
design, general contracting, construction and other services and items which are
necessary or appropriate to execute and complete the Project in accordance with
this Agreement, and shall include, without limitation, all services and items
which are specifically required by this Agreement. Contractor agrees to provide
all Work for a cost to Owner not to exceed the Guaranteed Maximum Price set
forth herein.
A. INTENT OF AGREEMENT
The intent of the Agreement is to include all items and services
necessary for the proper execution and completion of the Work by the Contractor,
including, without limitation, all such items and services which are consistent
with, contemplated by, or reasonably inferable from the Agreement, whether or
not such items and services are specifically mentioned therein. The documents
comprising the Agreement are complementary, and what is required by one shall be
as binding as if required by all.
A. PRIORITY OF DOCUMENTS
In the event of a conflict or inconsistency among the documents
comprising the Agreement, the following order of precedence shall govern the
interpretation of such documents:
(a) Modifications to this Agreement;
(b) this Agreement (excluding the Project Concept Documents
and the Construction Documents);
(c) the Construction Documents; and
(d) the Project Concept Documents.
A. GENERAL REQUIREMENTS
- --
1. Performance of the Work. The Contractor hereby covenants
------------------------
and agrees that it shall duly and properly perform and complete the Work in
accordance with this Agreement and all applicable Laws. The Contractor further
covenants and agrees that it shall provide and pay for all items or services
necessary for the proper execution and completion of the Work and the Project,
whether temporary or permanent and whether or not incorporated or to be
incorporated into the Work, including, but not limited to, all design,
engineering, procurement, installation and construction services, all
administration, management, training and coordination services, all labor,
materials, furnishings, equipment, supplies, required insurance and licenses,
tools, machinery, water, heat, utilities and transportation, and all other
items, facilities and services.
1. Professional Standards. The Contractor's services,
-----------------------
including, without limitation, its design and engineering services, shall be
performed (i) with care and diligence, (ii) in accordance with generally
accepted professional standards, and (iii) as expeditiously and economically as
is consistent with the best interests of the Owner and with the preceding
standards of professional skill, care and diligence.
1. Licensing and Other Qualifications. The Contractor
-------------------------------------
covenants and agrees that all persons who will perform or be in charge of the
professional architectural and design work for the Project shall have experience
with the type of project being undertaken and shall be duly licensed to practice
under the Laws of the jurisdiction in which the Project is located, and that all
engineering services provided hereunder shall be performed by an engineer, or
engineers, licensed to practice under the Laws of the jurisdiction in which the
Project is located. Similarly, all construction services shall be undertaken
and performed by qualified construction contractors and suppliers.
2. Sufficient Personnel. The Contractor shall, at all times
---------------------
during the term of this Agreement, keep sufficient personnel employed so that
the services to be performed by the Contractor hereunder are completed in an
efficient, prompt, economical and professional manner.
1. Contractor's Key Personnel. Attached hereto as Exhibit C
---------------------------
is a list of the Contractor's key personnel who will be responsible for
supervising the performance of the Contractor's services hereunder. The
Contractor shall not remove any such personnel from the Project without the
Owner's prior written consent, which consent shall not be unreasonably withheld.
If any such individual is so removed, any replacement personnel shall be subject
to the prior written approval of the Owner, which approval shall likewise not be
unreasonably withheld.
A. NATURE OF DESIGN-BUILD AGREEMENT
- --
1. Design and Engineering Generally. This Agreement
-----------------------------------
expressly contemplates that all services necessary to conceive, design, erect
and complete all Work, including without limitation, construction, design,
architectural and engineering services (subject to Section 1.5.2 and Section
1.5.3), shall be the responsibility of Contractor under this comprehensive
Agreement. It is expected that Contractor will retain various architects,
engineers, consultants and other professionals to assist it in designing,
inspecting and completing the Work. The services of such architects, engineers,
consultants and other professionals shall be the sole responsibility of the
Contractor pursuant to Contractor's contracts or subcontracts with such
professionals, and Contractor shall be responsible to Owner, as set forth more
specifically in this Agreement, for all acts, services, duties, responsibilities
and omissions of such professionals; it being expressly understood that Owner
shall not have responsibility for any aspect of the design or engineering of the
Project, nor shall Owner have any duties to architects, engineers, consultants
or other professionals retained by Contractor.
1. Construction Documents. The Owner has provided complete
-----------------------
"Construction Documents" consisting of working drawings and specifications
setting forth in detail the requirements for the construction of the Project.
The Construction Documents include the construction documents prepared by
Parkhill Ivins Architects, P.C. (the "Parkhill Documents") and the construction
documents prepared by Norwood Oliver Design Associates (the "NODA Documents"),
all of which are listed on Exhibit D attached hereto and are hereby incorporated
by reference as addenda to this Agreement. The Contractor shall confirm that
the Parkhill Documents and the NODA Documents conform to each other and work
together and shall, at no expense to the Owner, revise, modify and correct the
Parkhill Documents and/or the NODA Documents as necessary to ensure that they
conform to each other and work together (i.e., coordinate the Work). The
Contractor will confirm that the Construction Documents shall be in conformance
with and accurately reflect all generally accepted professional standards and,
as required in Section 1.6.2, in compliance with all Laws.
1. Contractor's Architect. Parkhill Ivins Architects, P.C.
-----------------------
(the "Contractor's Architect") shall perform all professional architectural,
engineering and contract administration services required under this Agreement
to complete the Work, and shall not be replaced without the express written
consent of the Owner. The Contractor covenants and agrees that all design,
engineering, architectural and other professional services necessary to properly
complete the Work shall be the sole responsibility of the Contractor (including,
without limitation, any design, engineering, architectural and other
professional services rendered by the Contractor's Architect or its consultants,
other than the design services provided previously pursuant to a separate
agreement between Owner and Contractor's Architect), and that the Contractor
shall be responsible to the Owner for all acts, omissions, errors, duties,
obligations and services of the Contractor's Architect and other entities
providing such professional services pursuant to contracts with the Contractor.
The Owner shall be a third-party beneficiary of the contract between the
Contractor and the Contractor's Architect, and the Contractor shall provide the
Owner with a copy of such contract.
A. DESIGN AND ENGINEERING WORK
- --
1. Design Schedule. The Contractor shall complete the
----------------
various documents by the dates set forth in the Schedule.
1. Compliance with Laws. The Contractor covenants and agrees
--------------------
that the Construction Documents shall be accurate and free from any errors or
omissions, and shall be in compliance with and accurately reflect all applicable
Laws, including, without limitation, any and all Laws related to gaming and/or
gaming facilities. The Contractor shall, at no expense to the Owner, promptly
revise, modify and correct any such documents which are not in accordance with
such legal requirements or are inaccurate or contain errors or omissions, as
required to coordinate the Work.
A. CHANGES IN THE WORK
- --
1. Changes. Changes in the Work may be accomplished after
-------
execution of this Agreement, and without invalidating this Agreement, by Change
Order or Construction Change Directive. A Change Order shall be based upon
agreement between the Owner and Contractor; a Construction Change Directive may
be issued by the Owner alone and may or may not be agreed to by the Contractor.
Changes in the Work shall be performed under applicable provisions of the
Agreement, and the Contractor shall proceed promptly, unless otherwise provided
in the Change Order or Construction Change Directive.
1. Contract Adjustments. Notwithstanding anything to the
---------------------
contrary contained in this Agreement, the Guaranteed Maximum Price and the
Substantial Completion Date may only be adjusted by Change Order or Construction
Change Directive.
1. No Contractor Changes. Except as otherwise expressly
-----------------------
permitted in this Agreement, the Contractor shall not initiate changes in the
scope of the Work; it being acknowledged and agreed by the Contractor that the
Work can be successfully completed within the Guaranteed Maximum Price and by
the Substantial Completion Date.
1. Change Orders. (a) The Owner may request changes in the
--------------
Work within the general scope of this Agreement consisting of additions,
deletions or other revisions. If the Owner so desires to change the Work, it
shall submit a change request to the Contractor in writing. Within seven (7)
days of its receipt of any such request, the Contractor shall submit a detailed
proposal to the Owner stating (i) the increase or decrease, if any, in the
Guaranteed Maximum Price which would result from such change, and (ii) the
effect, if any, upon the Substantial Completion Date by reason of such proposed
change. If the Owner agrees with the Contractor's proposal, the Owner and the
Contractor shall execute a document reflecting the requested change in the Work
and the proposed adjustments, if any, in the Guaranteed Maximum Price and the
Substantial Completion Date (a "Change Order"). In the event the Owner
disagrees with the Contractor's proposal in relation to the requested change,
the Owner may either (i) notify the Contractor that the Owner has decided to
withdraw its requested change, or (ii) issue a Construction Change Directive as
permitted in the following Section 1.7.5.
(b) In the event the Owner requests a major change in the scope of the
Work and the Owner ultimately decides not to proceed with such requested change,
the Owner shall nevertheless reimburse the Contractor, as a Cost of the Work,
for design fees (as defined in Section 8.4.7) which are incurred by the
Contractor in preparing design documents reflecting such requested change;
provided, however, no such reimbursement shall be made unless the Contractor
previously notified the Owner that the requested change was a major change.
1. Construction Change Directive. (a) In the event the Owner
-----------------------------
disagrees with the Contractor's proposal in relation to the Owner's request for
a change in the Work, the Owner may issue a written order directing a change in
the Work (a "Construction Change Directive"), the Guaranteed Maximum Price and
the Substantial Completion Date being adjusted, if at all, as hereinafter
provided:
a) (x) If the "actual cost" in performing the Work is
increased by any such change, the Guaranteed Maximum Price shall be increased
(without duplication) so as to reflect the "actual cost" to the Contractor (or
to any tier or level of subcontractor) in performing the Work attributable to
the change plus a percentage fee for overhead and profit. As to the Contractor,
the percentage fee shall equal zero percent (0%) of the "actual cost" incurred
by the Contractor for such additional Work. As to any tier or level of
subcontractor, the percentage fee shall equal fifteen percent (15%) of the
"actual cost" incurred by any such subcontractor for such additional Work.
(y) If the "actual cost" in performing the Work is decreased
by any such change, the Guaranteed Maximum Price shall be decreased (without
duplication) so as to reflect the "actual cost" which would have been incurred
by the Contractor (or by any tier or level of subcontractor) in the absence of
such change, plus percentage fees calculated as described in the preceding
Section 1.7.5.1(x).
(z) For the purposes of this Section 1.7.5, "actual cost" in
relation to the Contractor shall be defined and limited to the Cost of the Work,
and "actual cost" in relation to any subcontractor shall be defined and limited
to the cost of the following:
(a) Costs of labor, including social security, old
age and unemployment insurance, fringe benefits required by agreement or custom,
and workers' or workmen's compensation insurance;
(b) costs of materials, supplies and equipment,
including cost of transportation, whether incorporated or consumed;
(c) reasonable rental costs of machinery and
equipment, exclusive of hand tools, whether rented from the Contractor or
others; and
(d) costs of premiums for all bonds and insurance,
permit fees, and sales, use or similar taxes related to the Work.
"Actual cost" shall not be deemed to include any item which could be considered
overhead.
a) The Owner shall propose a basis for adjustment, if any, in
the Substantial Completion Date in the Construction Change Directive it issues
to the Contractor. If the Contractor does not agree with such proposed
adjustment, then any such adjustment in the Schedule shall be determined in
accordance with the dispute resolution provisions in this Agreement.
(b) Upon receipt of the Construction Change Directive, the Contractor
shall promptly proceed with the change in the Work involved. When adjustments
in the Guaranteed Maximum Price and the Schedule are determined as provided in
this Section 1.7.5, such determination shall be effective immediately and shall
be recorded by execution of a Change Order.
1. Necessity for Prior Written Authorization. Contractor
---------------------------------------------
waives any right to compensation for any Change in the Work or any extra work
performed without prior written authorization or written direction from Owner.
If extra work was ordered by the Owner and the Contractor performed the same
(but did not receive a written Change Order or Construction Change Directive),
the Contractor shall be deemed to have waived any claim for extra compensation
therefore.
1. Disputes Reflecting Changes in the Work. If a dispute
-------------------------------------------
arises as to whether any task or work ordered by Owner is or is not a Change in
the Work, Contractor will make known its claim to Owner in writing no later than
ten (10) days following receipt of the order to undertake such work or task and,
until instructed in writing by Owner to cease such task or work, will
immediately comply with Owner's written instructions to perform such task or
work. In the event Contractor does not inform Owner in writing within said ten
(10) days of its claim that the task or work ordered by Owner constituted a
Change in the Work and its claim for an adjustment to the Guaranteed Maximum
Price and/or the Schedule, Contractor shall be barred from ever asserting such a
claim in the future and Contractor waives any right to thereafter request an
adjustment in the Guaranteed Maximum Price or Schedule. In the event
Contractor, within said ten (10) day period, informs Owner in writing of its
claim that the task or work ordered by Owner constitutes a Change in the Work,
Contractor shall keep written records of the labor, materials and equipment used
to perform such disputed task or work and shall submit said records to Owner
weekly, and the dispute between Owner and Contractor as to whether the task or
work ordered by Owner is or is not a Change in the Work shall be determined
pursuant to the dispute resolution provisions of this Agreement. In the event
it is determined by dispute resolution that such task or work did constitute a
Change in the Work, adjustments to the Guaranteed Maximum Price and the Schedule
shall be determined in the manner set forth in Section 1.7.5. Notwithstanding
the outcome of such determination, Contractor hereby waives any right which it
might otherwise have to be compensated (and, such expenses shall not constitute
Cost of the Work) for such work performed on any day for which the records
specified in this Section 1.7.7 are not kept as provided herein.
1. Compliance with Construction Documents. Contractor shall
---------------------------------------
not execute any modifications, changes or alterations to the Construction
Documents or to the Work at the request of any person, including without
limitation Contractor's Architect or any subcontractor of Contractor, unless
such modification, change or alteration shall be authorized in writing by Owner
as provided in this Section 1.7.
1. Authorized Change Order Signatory. All Change Orders or
-----------------------------------
Construction Change Directives issued by Owner under this Agreement shall be in
writing and shall only be effective if executed on behalf of Owner by Ed Reese,
or by Owner's Agent executing Ed Reese's name as his attorney-in-fact, or by
such other person as Ed Reese may designate from time to time by giving notice
of the designation of such other person.
1. Restriction on Time Extension. With respect to all
--------------------------------
Changes in the Work, Change Orders and Construction Change Directives,
Contractor shall not claim any extensions to the Schedule for changes to the
Work which do not affect the total duration of the Work.
A. CONTRACTOR'S REPRESENTATIONS
Contractor acknowledges and hereby affirms and represents to Owner
that Contractor, to the best of its ability (i) has developed a clear
understanding of the Work that is to be performed by Contractor pursuant to this
Agreement, (ii) will resolve and eliminate all discrepancies and ambiguities
from the scope of the Work to the fullest extent and so as to ensure that no
such discrepancies or ambiguities shall arise or be present in the Construction
Documents, (iii) has familiarized itself with the Site and all conditions
affecting said Site, and (iv) has made all other necessary inspections,
sightings and investigations which Contractor, in its sole and absolute
discretion, thought or deemed desirable or necessary for Contractor to represent
to Owner herewith that Contractor is able to fully and completely perform its
obligations under this Agreement, including without limitation, to fully and
completely perform the Work within the Guaranteed Maximum Price and by the
Substantial Completion Date. The preceding terms and provisions of this Section
1.8 shall not limit or restrict the Contractor's rights set forth in Section
2.6.1.
A. "AS-BUILT" DRAWINGS
- --
1. Maintenance of Drawings at the Site. During the course of
-----------------------------------
performing the Work, Contractor shall maintain on the Site a complete set of the
Construction Documents and shall update such Construction Documents on a
continuous basis to reflect "as-built" changes to the Work, the cost of such
maintenance to be part of the Cost of the Work.
1. Mylar Drawings and "As-Built" Survey. Contractor, as part
------------------------------------
of the Cost of the Work and prior to final payment, shall transfer such
"as-built" changes to the Work from the Construction Documents kept at the Site
to (i) a true and complete final set of "as-built" Mylar drawings (and in
electronic format), capable of being reproduced, and (ii) a complete set of an
original "as-built" survey for the Site and the Project, indicating the actual
location of the improvements as constructed and as situated on the Site.
I. ARTICLE : CONSTRUCTION OF THE WORK;
SUBSTANTIAL COMPLETION; EXCUSABLE EVENTS;
WORKMANSHIP; COMPLIANCE WITH LAWS
A. SCHEDULES AND SUBMITTALS
- --
1. The Schedule. Attached to this Agreement as Exhibit E is
-------------
a critical path method schedule for the performance of the Work by the
Contractor (the "Schedule"). Without altering, modifying or otherwise revising
the Substantial Completion Date, the Contractor shall, on a monthly basis,
submit an updated Schedule to the Owner for the Owner's review and comment.
Contractor agrees to be bound by the Schedule and to perform all Work in strict
compliance with the Schedule.
1. Submission of Shop Drawings, Details, Samples and Data.
---------------------------------------------------------
Within a reasonable time following the Contractor's receipt of the Notice to
Proceed, the Contractor shall prepare and make available to Owner, or Owner's
Agent, at the Site for Owner's information, all shop drawings, samples, product
data or other submittal information as required for the performance of the Work
and thereafter shall continue to so make available for Owner's information, any
amendments and modifications made thereto or any new shop drawings, samples,
product data or other submittal information prepared or obtained by Contractor
with respect to the Work. All items required to be made available by Contractor
pursuant to this Section 2.1.2 shall be made available to Owner ten (10)
business days prior to the commencement of that portion of the Work encompassed
by said items and the making available of such items (and their review by Owner)
shall not relieve Contractor from responsibility for errors and omissions in the
drawings, samples, product data or other submittals made available.
1. Material Purchasing Schedule. Upon the request of Owner,
-----------------------------
Contractor shall prepare a material purchasing schedule, and update it monthly
or otherwise as mutually agreed to by Contractor and Owner, or Owner's Agent, of
all equipment and materials to be furnished and incorporated into the Work by
Contractor, giving the following information: (i) identification of the item;
(ii) date and amount of purchase; (iii) manufacturer and manufacturer's
location; (iv) shipping date; (v) current status of manufacture; and (vi) date
delivery is due at Site. Contractor shall adhere to and comply with the
approved material purchasing schedule in undertaking the Work.
1. Information as to Progress of Work. Contractor agrees
--------------------------------------
that it shall keep Owner continually informed as to the progress of the Work
and, upon its own initiative, shall confer with Owner and shall plan and execute
the Work in a coordinated sequence so as to insure the timely and efficient
completion of the Work. Contractor shall notify Owner when portions of its Work
are Substantially Complete or ready for any required inspection.
1. Revisions to Schedule Due to Owner's Suspension of Work.
---------------------------------------------------------
If Owner decides to suspend the Work in order to accommodate its own interests,
Contractor shall, upon receipt of written notice from Owner or Owner's Agent,
immediately discontinue further progress of the Work until such time as Owner
advises Contractor in writing to resume, which Contractor shall promptly do
upon receipt of such written notice from Owner. In the event the suspension in
the Work was for a period of seven (7) days or less, Contractor hereby releases
and discharges Owner from any liability for damages or expenses of whatever kind
or nature whatsoever which may be caused to or sustained by Contractor by reason
of such suspension in the Work so long as Owner extends the Schedule and the
Substantial Completion Date for the timely performance by Contractor of the Work
by a period of one weekday (excluding Saturday, Sunday, and legal holidays) for
each weekday (excluding Saturday, Sunday, and legal holidays) lost on account of
such Owner suspension in the Work. In the event the interruption in the
prosecution of the Work was for a period longer than seven (7) days, Contractor,
upon demonstrating that such delay did in fact cause an increase in the Cost of
the Work, shall be entitled, in addition to an adjustment of the Schedule and
the Substantial Completion Date, to an increase in the Guaranteed Maximum Price
in the manner set forth in Section 1.7.5.
A. TIME AND PROSECUTION OF WORK
- --
1. Time of the Essence. Time is of the essence of this
----------------------
Agreement. Contractor agrees to punctually and diligently perform all parts of
the Work in accordance with the Schedule.
1. Notice to Proceed. The Owner has provided written notice
- -- ------------------
to the Contractor directing the Contractor to commence the performance of the
Work (the "Notice to Proceed").
1. Substantial Completion. The Contractor shall commence the
----------------------
Work upon its receipt of the Notice to Proceed, and shall successfully achieve
Substantial Completion of the Project on or before the Substantial Completion
Date.
1. Owner's Right to Direct Overtime and Multiple Shifts. If
-----------------------------------------------------
Contractor is not in default under any of the provisions of the Agreement and
if, in order to expedite the completion of the Work, Owner directs Contractor to
work overtime or multiple shifts, Contractor shall work said overtime or
multiple shifts and Owner shall pay for said overtime only the actual extra cost
over the rate for regular time of said overtime. Extra cost for such overtime
work shall be authorized only by Change Order or Construction Change Directive.
1. Owner's Right to Request Expedition. If at any time
---------------------------------------
Contractor becomes aware of circumstances relating to the Work that may cause a
delay in the Schedule, including without limitation delays in the manufacture
and/or delivery of materials or equipment, Contractor shall immediately give
written notice of such circumstances to Owner or Owner's Agent. Upon receipt
of such notice, the Owner may direct the Contractor to exert its best efforts,
and to expedite any matters, so as to avoid any such delay in the Schedule.
1. Owner's Right to Require Additional Labor. In the event
-------------------------------------------
the Contractor should:
(a) fail or refuse to prosecute the Work in strict accordance with
the Schedule, or
(b) fail or refuse to supply sufficient skilled workmen, or
(c) fail to cause materials or equipment to be delivered to the
Site in accordance with the material purchasing schedule, or
(d) fail to commence, perform, finish or deliver different parts
of the Work in accordance with the Schedule, or
(e) otherwise default in its obligations under this Agreement,
then Owner, in addition to any other rights Owner may have under this Agreement,
upon seven (7) days prior written notice to Contractor, shall have the right to
require Contractor to furnish additional labor and to expedite materials and
equipment and, if such additional labor is not available, Owner shall have the
right to require Contractor to work overtime or multiple shifts (and/or weekends
and holidays) to such an extent as will be sufficient in the opinion of Owner,
to expedite and complete the Work in accordance with the Schedule.
A. SUBSTANTIAL COMPLETION OF WORK
- --
1. Definition of Substantial Completion. For the purposes of
------------------------------------
this Agreement, the terms "Substantially Completed", "Substantially Complete"
and "Substantial Completion", when applied to the Project, shall be deemed to
have occurred upon the latest to occur of the following events:
(i) The Project is sufficiently complete such that it is ready
for occupancy, utilization and continuous commercial operation for the uses and
purposes intended, subject to minor punch list items (the noncompletion of which
does not interfere with the occupancy, use or continuous commercial operation of
the Project);
(ii) Certificates of occupancy have been issued by the
appropriate Governmental Authorities for the Project; and
(iii) Receipt by Owner of a certificate of substantial completion
from Contractor's Architect certifying that all Work as to the Project has been
completed in accordance with the Construction Documents, subject only to the
completion of minor punch list items.
1. Further Conditions on Substantial Completion. Contractor
---------------------------------------------
hereby acknowledges its agreement and understanding that Substantial Completion
of the Project shall in any event require that all systems reasonably necessary
for the operation of the Project shall be installed and fully operational,
including but not limited to, heating, ventilating, air conditioning, life
safety, systems controls, fire sprinkler, vertical transportation, electrical
and plumbing.
A. DELAYED/EARLY COMPLETION
- --
1. Liquidated Damages. Contractor expressly acknowledges
-------------------
that Owner will incur substantial costs, lost revenues and damages for each day
that Substantial Completion of the Project is delayed, including but not limited
to, lack of hotel revenues, personnel and administrative costs, loss of profits,
loss of goodwill, loss of market position, and other direct and indirect losses.
In view of the difficulty or impossibility of determining what Owner's damages
will be should Contractor fail to achieve Substantial Completion of the Project
on or before the Substantial Completion Date, Contractor agrees to pay Owner as
liquidated damages, and not as a penalty, the following amounts: For each day
Substantial Completion of the Project is delayed beyond the Substantial
Completion Date, the sum of:
- - $0.00 per day for the first twenty-two (22) days of delay; and
- - $10,000 per day for any days of delay after such initial twenty-two (22)
day period.
No liquidated damages due from the Contractor shall constitute a Cost of the
Work. Contractor hereby specifically acknowledges that it has reviewed together
with Owner all the aspects of Owner's damages, and agrees, represents and
confirms that the daily liquidated damage amounts provided herein represents
Owner's and Contractor's best estimate of a realistic and accurate daily damage
to Owner in the event of Contractor's failure to Substantially Complete the
Project as provided in the Schedule. The preceding liquidated damages, if any,
shall be due and payable by the Contractor upon demand by the Owner.
1. Early Completion Incentive. Conversely, if the Contractor
---------------------------
achieves Substantial Completion of the Project prior to the Substantial
Completion Date, the Owner shall pay the Contractor an incentive fee as follows:
For each day Substantial Completion of the Project precedes the Substantial
Completion Date, the sum of:
- - $0.00 per day for the first twenty-two (22) days which precede the
Substantial Completion Date; and
- - $10,000 per day for each day which precedes the twenty-two (22) days
before the Substantial Completion Date.
The preceding incentive fees, if any, shall be paid with the final payment to
the Contractor.
A. EXCUSABLE EVENTS
- --
1. Adjustments in Schedule Because of Excusable Event.
--------------------------------------------------------
Except as otherwise specifically provided in this Agreement or as a result of
Changes in the Work as permitted in Section 1.7 of this Agreement, an extension
in the Substantial Completion Date shall only be granted under the following
circumstances: (a) a delay occurs in the progress of the Work as a result of an
Excusable Event, and (b) the Contractor has complied with the terms and
conditions of the following clauses:
(a) The Contractor, within seven (7) days of the date upon which the
Contractor has knowledge of the Excusable Event, notifies the Owner, in writing,
of the cause of the event and the approximate number of days the Contractor
expects to be delayed as a result of such event; and the Contractor makes a
request for an extension of time to the Owner, in writing, within seven (7) days
after the cessation of the Excusable Event specifying the number of days the
Contractor believes that its activities were in fact delayed as a result of the
event;
(b) The Contractor can demonstrate, to the reasonable satisfaction of the
Owner, that the activity claimed to have been delayed was in fact delayed by the
Excusable Event, and that the delay in such activity will result in a delay in
Substantial Completion of the Project beyond the Substantial Completion Date;
and
(c) The initial notice provided by the Contractor under Clause (a) above
describes the efforts of the Contractor that have been (or are going to be)
undertaken by the Contractor to overcome or remove the Excusable Event and to
minimize the potential adverse effect on the time for performance of the Work
resulting from such Excusable Event.
Compliance with this Section is a condition precedent to receipt of an extension
in the Substantial Completion Date. In the event of a failure to comply with
this Section, the Contractor shall not be entitled to an extension of time.
Upon satisfaction by the Contractor of the terms and conditions in the preceding
clauses, the Owner and the Contractor will use good faith efforts to agree on
the extent to which the Work has been delayed on account of any such Excusable
Event. Once the parties have mutually agreed as to the extent of such delay,
they shall enter into a Change Order reflecting their agreement as to the
adjustment in the Schedule and the Substantial Completion Date.
1. Adjustments in Guaranteed Maximum Price Because of
--------------------------------------------------------
Excusable Event. Except as otherwise specifically provided in this Agreement or
--------
as a result of changes in the Work as permitted in Section 1.7 of this
Agreement, an increase in the Guaranteed Maximum Price shall only be granted
under the following circumstances: (a) a demonstrable increase in the
Contractor's cost of performing the Work results from the occurrence of an
Excusable Event which is identified in Section 2.5.3.1, 2.5.3.4 or 2.5.3.5, and
(b) the Contractor has complied with the terms and conditions of the following
clauses:
(a) The Contractor, within seven (7) days of the date upon which the
Contractor has knowledge of the Excusable Event, notifies the Owner, in writing,
of the cause of the event and the approximate additional costs the Contractor
will incur as a result of such event; and the Contractor makes a request for an
increase in the Guaranteed Maximum Price to the Owner, in writing, within seven
(7) days after the cessation of such Excusable Event specifying the additional
cost the Contractor believes it incurred as a result of such event;
(b) The Contractor can demonstrate, to the reasonable satisfaction of the
Owner, that the Excusable Event did in fact cause an increase in the
Contractor's cost of performing the Work; and
(c) The initial notice provided by the Contractor under Clause (a) above
describes the efforts of the Contractor that have been (or are going to be)
undertaken by the Contractor to overcome or remove the Excusable Event and to
minimize the potential adverse effect on the cost for performance of the Work
resulting from such Excusable Event.
Compliance with this Section is a condition precedent to receipt of an increase
in the Guaranteed Maximum Price. In the event of a failure to comply with this
Section, the Contractor shall not be entitled to an increase in the Guaranteed
Maximum Price. Upon satisfaction by the Contractor of the terms and conditions
in the preceding clauses, the Owner and the Contractor will use good faith
efforts to agree on the extent to which the Contractor's costs for performing
the Work have been increased as a result of any such Excusable Event. Once the
parties have mutually agreed as to the Contractor's increased costs, they shall
enter into a Change Order reflecting their agreement as to the adjustment in the
Guaranteed Maximum Price.
1. Excusable Events Defined. The occurrence of any of the
--------------------------
following events shall constitute an "Excusable Event":
a) Delays resulting from the acts or omissions of the
Owner, to the extent such delays arise from circumstances beyond the reasonable
control and without the fault or negligence of the Contractor, its
subcontractors or other persons for whom either may be liable;
a) Any of the following acts, events, conditions or
occurrences to the extent that the same are beyond the Contractor's reasonable
control, which could not have been either foreseen or avoided by the exercise of
due diligence, and which has an adverse effect on the Contractor's ability to
perform its obligations hereunder: acts of God, fires, explosions, floods,
earthquakes, tornadoes, epidemics, civil disturbances, war, riots, sabotage,
restraints or injunctions issued by a Governmental Authority, nationwide strikes
or labor disputes, and the City of Black Hawk's failure or delay in issuing, or
its revocation of, permits required for the performance of the Work (a "Force
Majeure Event");
a) The discovery of any Pre-Existing Hazardous Substance
at the Site;
a) The occurrence of a Change in Law;
a) The discovery of any Unforeseeable Conditions at the
Site as described in Section 2.6.1(b); and
a) Delays resulting from the occurrence of an Extreme
Weather Day; provided, however, no adjustment in the Substantial Completion Date
shall be permitted until fifteen (15) Extreme Weather Days which actually
delayed the Work have occurred (it being expressly agreed by the Contractor that
all delays arising from the occurrence of such initial fifteen (15) days shall
be borne by the Contractor alone).
1. Rights Limited. The rights and remedies set forth in this
--------------
Section 2.5 shall be the Contractor's sole and exclusive rights and remedies in
the event of an occurrence of an Excusable Event, and the Contractor hereby
waives all other rights and remedies at law and/or in equity that it might
otherwise have against the Owner on account of an Excusable Event.
1. Contractor's Acknowledgment of Extreme Weather Conditions.
---------------------------------------------------------
Contractor recognizes and acknowledges that the Work is to be conducted in a
mountainous region of Colorado where extremes in all forms of weather,
temperature and precipitation can be reasonably expected, and that Contractor
has taken into account the possibility of such extremes in weather, temperature
and precipitation in agreeing to the Guaranteed Maximum Price, Schedule and
Substantial Completion Date. Therefore, the Contractor shall not be entitled to
an adjustment in the Guaranteed Maximum Price as a result of weather conditions,
and shall only be entitled to a Schedule adjustment for weather conditions to
the extent expressly permitted in Sections 2.5.1 and 2.5.3.
A. WORKMANSHIP AND PERFORMANCE OF WORK
- --
1. Site Conditions. (a) The Contractor agrees that it has
----------------
satisfied itself as to what the Contractor anticipates will be the character,
quality and quantity of surface and subsurface materials or obstacles that may
be encountered by the Contractor at the Site, and that the entire cost risk of
such matters (as well as any concealed, latent or unknown conditions) shall be
borne by the Contractor as part of the Guaranteed Maximum Price and that the
Contractor shall not be entitled to an extension in the Substantial Completion
Date as a result of the same. In furtherance of the foregoing, the Contractor
agrees that it shall have no claim for any increase in the Guaranteed Maximum
Price, or any extension in the Substantial Completion Date, in the event that
soil, surface or subsurface conditions which differ from what had been
anticipated by the Contractor, or concealed, unknown or latent conditions, are
encountered or discovered at the Site in the performance of the Work.
Notwithstanding the foregoing, the responsibility for remediating any
Pre-Existing Hazardous Substances which are encountered at the Site shall be as
provided in Section 16.1.
(b) Notwithstanding anything to the contrary contained in the preceding
Section 2.6.1(a), if the Contractor encounters conditions at the Site which are
concealed physical conditions which the Contractor reasonably believes are
Unforeseeable Conditions, then notice by the Contractor as to the same shall be
given to the Owner. If the Owner and the Contractor thereafter mutually
determine that such concealed physical conditions are in fact Unforeseeable
Conditions, then the Contractor will be entitled to seek an equitable adjustment
in the Guaranteed Maximum Price or the Substantial Completion Date, or both, as
provided in Section 2.5.
1. Local Conditions. The Contractor represents that it has
-----------------
taken steps reasonably necessary to ascertain the nature and location of the
Work, and that it has investigated and satis-fied itself as to the general and
local conditions which can affect the Site and/or the performance of the Work,
including but not limited to (1) conditions bearing upon transportation,
disposal, handling, and storage of materials and equipment; (2) the availability
of labor, water, electric power, and roads; (3) uncertainties of weather at the
Site; and (4) the character of equipment and facilities needed preliminary to
and during the performance of the Work. Any failure by the Contractor to take
the actions described and acknowledged in this Section will not relieve the
Contractor from responsibility for estimating properly the difficulty and cost
of successfully performing the Work, or for proceeding to successfully perform
the Work without additional expense to the Owner; provided, however, the terms
and provisions of this Section shall not be construed to limit or restrict the
Contractor's rights set forth in the preceding Section 2.6.1(b) regarding
Unforeseeable Conditions. Notwithstanding the foregoing, the responsibility for
remediating any Pre-Existing Hazardous Substances which are encountered at the
Site shall be as provided in Section 16.1.
1. Contractor's Responsibility for Proper Layout. Contractor
---------------------------------------------
shall be strictly responsible for the proper layout, location, performance, and
accuracy of the lines and levels required for the proper performance of the Work
and for any loss or damage to the Owner resulting from the Contractor's failure
to set out or perform the Work correctly and coordinate its work with the Work
of others. Contractor shall so lay out and perform the Work such that actual
final conditions and details result in alignment of finish surfaces in
accordance with the Construction Documents.
1. Contractor's Workmanship Standard. Every part of the Work
---------------------------------
shall be executed by Contractor in strict accordance with the provisions of this
Agreement and in a thorough, sound, workmanlike manner and in accordance with
the highest construction industry standards. All material and equipment used in
the Work shall be furnished in ample quantities to facilitate the proper and
expeditious execution of the Work and shall be new and the best of their
respective kinds, except such materials as may be expressly and specifically
provided for in the Construction Documents to be otherwise.
1. Contractor's Work in Areas Prepared by Others. With
---------------------------------------------------
respect to any portion of the Work which requires tasks or functions to be
performed on areas constructed or prepared by others, or which includes
installation of materials or equipment furnished by others, Contractor hereby
agrees that use of such items or commencement of the Work by Contractor on such
areas shall be deemed to be and constitute acceptance thereof by Contractor, and
Contractor hereby agrees that it shall be responsible and liable for any loss,
expense or damage attributable to such areas or items, and agrees to protect
such areas, and to inventory, handle, store and install such items with such
skill and less care as to insure compliance with this Agreement.
1. Owner's Inspection Rights. Contractor shall make all
---------------------------
arrangements necessary for the inspection by Owner of materials at the Site, or
at shops, or at any place where materials required for the performance of the
Work may be in storage or in the course of preparation, process, manufacture or
treatment. Contractor shall furnish to Owner, as often as requested, full
reports of the progress of the Work at any place where materials may be in the
course of preparation, process or manufacture, in such detail as may be required
by Owner, including any purchase orders, schedules, plans, drawings, or diagrams
utilized in the course of preparation, process or manufacture of such materials.
1. Storage on Site. Contractor shall provide, locate and
-----------------
relocate and/or maintain adequate sheds and/or tool boxes on the Site as may be
reasonably designated by Owner. Owner shall not be responsible for any of
Contractor's (or its subcontractors' or materialmen's) clothing, tools,
materials, equipment or other items lost, damaged, stolen or destroyed at the
Site or elsewhere, it being the agreement of the parties hereto that all
preparation for the Work, including without limitation, the delivery of
material to the Site, shall be at the risk of Contractor alone and Contractor
shall assume the risk for all loss occasioned by fire, theft, mysterious
disappearance or other damage to such items, except to the extent such loss is
compensated by insurance required to be provided by the Owner pursuant to this
Agreement.
1. Owner's Access to the Work. Owner, any Governmental
------------------------------
Authority, or any other party designated by Owner shall, at all times, have
access to the Work wherever it is in preparation or progress, and Contractor
shall provide sufficient, safe and proper facilities reasonably needed for such
access and for inspection by such parties.
2. Rejected Workmanship and Material During Construction.
---------------------------------------------------------
Owner and any Governmental Authority shall have the right to reject materials,
equipment, fixtures, furniture, workmanship or other Work, including without
limitation, architectural and engineering work, which are defective or not in
conformity with this Agreement and to require their correction. Rejected
workmanship shall be satisfactorily corrected and rejected materials shall be
satisfactorily replaced with proper materials. The cost of such rejected
workmanship and its correction and the cost of such rejected materials shall be
borne by Contractor from its own funds and shall not constitute Cost of the
Work. If Contractor does not commence to correct such defective workmanship or
replace the rejected materials within five (5) days, Owner may, without
prejudice to any other rights or remedies the Owner may have under this
Agreement, correct such deficiencies and deduct an amount equal to the
expenditures incurred by the Owner in doing so from amounts due to the
Contractor.
1. Removal or Tearing Out Work to Inspect. Should it be
-------------------------------------------
considered necessary or advisable by Owner or any Governmental Authority to make
an examination of the Work already completed by the Contractor by removing or
tearing out same, Contractor shall, upon request, promptly furnish all necessary
facilities, labor and materials therefor. If such Work is found to be defective
or nonconforming in any material respect, Contractor shall bear all the expenses
of such examination and of satisfactory reconstruction from its own funds and
such expenses shall not constitute Cost of the Work. If, however, such Work is
found to meet the requirements of this Agreement, Contractor shall be
compensated for such examination and replacement by an equitable adjustment (if
one is appropriate or necessary) in the Guaranteed Maximum Price and the
Schedule by means of a Change Order.
1. Responsibility. The Contractor shall be responsible to
--------------
the Owner for acts and omissions of the Contractor, subcontractors,
subsubcontractors, architects, engineers, suppliers and their respective agents
and employees, and any other persons performing portions of the Work.
1. Control. The Contractor shall be solely responsible for
-------
and shall have control over all construction means, methods, techniques,
sequences and procedures, and for coordinating all portions of the Work.
1. Use of Site. The Contractor shall confine its operations
------------
at the Site to areas permitted by laws, ordinances, rules, permits and this
Agreement, and shall not unreasonably encumber the Site with materials,
equipment or similar items.
1. Cutting & Patching. The Contractor shall be responsible for
-------------------
all cutting, fitting and patching which is required to complete the Work or to
make its parts fit together properly. It is the intent of this Agreement that
all areas requiring cutting, fitting and patching shall be restored to a
completely finished condition.
A. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
- --
1. Taxes. The Contractor shall pay all sales, value added,
-----
consumer, use, excise and other taxes, duties and tariffs (whether direct or
indirect) relating to, or incurred in connection with, the performance of the
Work, including, without limitation, all duties, tariffs and taxes (whether
foreign or otherwise) related to the import/export of machinery, equipment,
materials and supplies utilized in the performance of the Work. Notwithstanding
the foregoing, any use tax imposed by the City of Black Hawk, Colorado in
relation to the performance of the Work shall be borne by the Owner, and shall
be paid directly to the City by the Owner upon submission of an invoice and
other supporting documentation from the Contractor.
1. Legal Requirements. The Contractor shall comply, and
-------------------
shall cause its subcontractors, sub-subcontractors and others performing
portions of the Work to comply, with all existing and future Laws, permits,
licenses and approvals which are applicable to the Work, the Project and/or the
Site, and shall give all notices pertaining thereto.
1. Permits and Licenses. The Contractor shall secure and pay
--------------------
for any and all permits, licenses, governmental fees, inspections,
certifications, authorizations and approvals necessary for the proper execution
and completion of the Work, including, without limitation, building permits and
certificates of occupancy. Notwithstanding the foregoing, the Owner shall secure
and/or pay for those permits and licenses set forth on Exhibit F attached
hereto.
1. Building Inspections. Contractor shall promptly notify
---------------------
the respective regulatory departments or official bodies when any portion of the
Work is ready for inspection and Contractor shall, at once, undertake all tasks
required to obtain approvals of such Work, to remove any violations therefrom or
to comply with such inspections, without any additional charge to Owner.
1. Corrections of Legal Violations. Upon discovering or
----------------------------------
being advised that any portion of the Work is or may be in violation of any
Laws, Contractor shall immediately notify the Owner in writing and shall
immediately correct such violation. The cost of such corrective work shall be
made from Contractor's own funds, and such costs and expenses shall not
constitute Cost of the Work. Owner after giving Contractor written notice and
five (5) days to cure the problem, shall have the right to make all required
payments to correct such violations, and any monies expended by the Owner in
correcting such violations may be deducted from payments due to the Contractor.
1. Ownership of Design Documents. The Construction
--------------------------------
Documents, and any other drawings, specifications, designs, plans and other
documents, prepared by or on behalf of the Owner, the Contractor's Architect
and/or the Contractor shall be deemed the property of the Owner. Neither the
Contractor, nor the Contractor's Architect or any other party, shall own or
claim a copyright in such documents, and the Owner shall be deemed the author of
them and will retain all common law, statutory and other proprietary rights, in
addition to the copyright. All copies of them shall be returned or suitably
accounted for to the Owner upon completion of the Project. The preceding
documents and copies thereof are to be used by the Owner solely with respect to
the completion of the Project or for any additions, improvements, changes or
alterations to the Project after its completion; provided, however, the Owner
shall indemnify the Contractor and the Contractor's Architect from any liability
which may arise from the misuse or incorrect use of such documents by the Owner.
Such documents are not to be used by the Contractor or the Contractor's
Architect on other projects or for any other purpose without the prior written
consent of the Owner. The Contractor is granted a limited license to use and
reproduce applicable portions of such documents appropriate to and for use in
the performance of the Contractor's services under this Agreement. Submittal or
distribution to meet official regulatory requirements in connection with this
Project is not to be construed as publication in derogation of the Owner's
copyright or other reserved rights.
1. Patents and Other Proprietary Rights. The Contractor
----------------------------------------
shall pay all royalties and other fees for any patents, trademarks, copyrights
or other proprietary rights necessary for the execution and completion of the
Work. The Contractor shall indemnify, defend and hold harmless the Owner from
and against any and all losses, damages or expenses, including, without
limitation, court costs and reasonable attorneys' fees, arising or resulting
from any claim or legal action that any materials, supplies, equipment,
processes or other portions of the Work furnished by the Contractor under this
Agreement constitutes an infringement of any patent, trademark, copyright or
other proprietary rights. If any such item is held to constitute an
infringement, and the use of such item is enjoined, the Contractor shall, at its
own expense, either procure the right to use the infringing item, or replace the
same with a substantially equal but non-infringing item, or modify the same to
be non-infringing, provided that any substitute or modified item shall meet all
the requirements and be subject to all the provisions of this Agreement. The
terms and provisions of this Section shall survive the termination or expiration
of this Agreement.
A. CONTRACTOR'S SUBCONTRACTORS
- --
1. Bidding Process. In relation to its subcontracting, the
----------------
Contractor agrees as follows: (i) no construction trade related to the Work
shall be performed unless and until such construction trade has been submitted
to a competitive bidding process whereby no less than three (3) bona-fide
bidders participate in the bidding for such trade, (ii) all such construction
trades shall be awarded to the lowest bidder, and (iii) unless otherwise
permitted in writing by Owner, all subcontracts awarded by the Contractor for
the Work shall be written on a "lump sum basis" and not on a "cost plus", "cost
---
of the work" or "reimbursable" basis. Notwithstanding the foregoing or anything
to the contrary contained in this Section 2.8, the parties hereby agree as
follows:
(i) The Contractor's Architect shall perform all professional architectural
services required under this Agreement, provided the subcontract between
Contractor and the Contractor's Architect shall be subject to the Owner's prior
written approval;
(ii) The Subcontractors already selected by the Contractor and listed on
Exhibit H attached hereto shall perform the services described therein, provided
the subcontracts between Contractor and such subcontractors shall be subject to
the Owner's prior written approval;
(iii) The Contractor may be a participant in the bidding for any
construction trade; provided (a) the Contractor may not perform any such trade
work unless it submitted the lowest bid, (b) the Contractor's bid must be on a
lump sum basis and must be submitted to the Owner one (1) business day prior to
the date its competitors' bids are due, and (c) if the Contractor is awarded any
such work because it submitted the lowest bid, the Contractor shall perform all
work outlined in its proposal for an amount equivalent to its lump sum bid and
shall not charge the Owner for any such work as a Cost of the Work (other than
as a Cost of the Work which is payment toward the Contractor's lump sum bid);
and
(iv) No affiliate of the Contractor shall be deemed a bona-fide bidder for
purposes of the foregoing bidding process.
1. Identification of Subcontractors. Each month the
----------------------------------
Contractor shall furnish to Owner for Owner's approval, which approval shall not
be unreasonably withheld, an updated Exhibit H, which shall include not only
already-approved Subcontractors but also all architects, engineers, consultants,
purchasing agents, material suppliers or other subcontractors selected during
the preceding month by Contractor pursuant to the foregoing bidding process to
perform the Work. Owner will give Contractor written notice of rejection of any
such architect, engineer, consultant, purchasing agent, material supplier or
other subcontractor unacceptable to Owner within seven business days.
Contractor shall not permit any such architect, engineer, consultant, purchasing
agent, material supplier or other subcontractor which either did not appear on
such initial list or was rejected by Owner to perform any of the Work without
obtaining Owner's prior written approval. In the event Owner has not rejected
such architect, engineer, consultant, purchasing agent, material supplier or
other subcontractor, such architect, engineer, consultant, purchasing agent,
material supplier or other subcontractor may be used by Contractor in accordance
with the terms of this Agreement, to perform any such portion of the Work such
architect, engineer, consultant, purchasing agent, material supplier or other
subcontractor is qualified to perform.
1. Rejection by Owner of Subcontractors. In the event Owner
-------------------------------------
rejects an architect, engineer, consultant, purchasing agent, material supplier
or other subcontractor as Owner is permitted to do herein, and if, as a result
of such rejection, Contractor is required to accept an architect, engineer,
consultant, purchasing agent, material supplier or other subcontractor whose
subcontract amount differs from that of the rejected one, the difference in cost
occasioned by such rejection shall result in an increase or decrease in the
Guaranteed Maximum Price pursuant to a Change Order. Once approved by Owner,
Contractor shall make no substitution for any architect, engineer, consultant,
purchasing agent, material supplier or other subcontractor previously approved
by Owner for a specified portion of the Work unless such substitution is again
approved by Owner. Contractor shall require all architects, engineers,
consultants, purchasing agents, material suppliers and other subcontractors to
be bound by and comply with the provisions of this Agreement which relate to
their scope, quality and the schedule of performance of the Work in the same
manner that Contractor is bound to Owner hereunder.
2. Liquidated Damages In Subcontracts. Contractor shall use
-----------------------------------
its best efforts to require all subcontracts and purchase orders to include
liquidated damage provisions, providing for liquidated damages in an amount
proportionate to the cost of the Work to be performed by any such party relative
to the Guaranteed Maximum Price.
1. Contingent Assignment. Each subcontract agreement for a
----------------------
portion of the Work is hereby assigned by the Contractor to the Owner provided
that:
1. the assignment is effective only after termination for
cause of this Agreement by the Owner pursuant to the terms hereof, and only for
those subcontract agreements which the Owner accepts by notifying the
subcontractor in writing; and
2. the assignment is subject to the prior rights of the surety or
sureties, if any, obligated under bonds relating to this Agreement.
The Contractor shall provide in each subcontract that upon termination of this
Agreement by reason of a default by the Contractor hereunder, at the option of
the Owner and subject to the preceding terms, all of the rights of the
Contractor under the subcontract shall be assigned to the Owner and the
subcontractor shall perform its duties and obligations thereunder, provided the
Owner makes payment on the amounts due thereunder as and when due and payable,
less such amounts as theretofore paid by the Owner to the Contractor applicable
to the subcontract. The Contractor shall execute and deliver to the Owner any
instruments reasonably required by the Owner to confirm and evidence any of the
preceding contingent assignments. The Contractor shall also make available for
the Owner's inspection true and correct copies of the executed subcontracts
during regular business hours.
A. LABOR
- --
1. Contractor's Duty to Staff the Work. Contractor shall
---------------------------------------
supply and cause its subcontractors to supply a sufficient and adequate number
of properly skilled workmen and competent supervisors to insure the prompt and
efficient performance of the Work.
1. Owner's Approval of Labor Force. Employment of labor by
---------------------------------
Contractor shall be undertaken under conditions which are satisfactory to Owner.
Contractor shall remove, or cause to have removed, from the Site, any employee
or employees who are considered unsatisfactory by Owner, in its reasonable
discretion, provided that such removal is not in violation of EEOC rules and
regulations or any labor contact relating to construction of the Project.
1. Notice of Occurrence With Respect to Employees.
----------------------------------------------------
Contractor shall give to Owner oral notice, immediately after Contractor has
knowledge thereof, of any occurrence, on the Site or otherwise, resulting in (i)
bodily injury or death or (ii) property damage. Said oral notice shall be
followed by written notice from Contractor to Owner of said occurrence within
five business days of the giving of oral notice. Contractor shall notify the
local police of any occurrence requiring an official police record. The notice
of Contractor to Owner should indicate whether the police were notified and, if
so, the number of the police report, if available or if obtainable.
A. MAINTENANCE OF THE SITE AND PROTECTION OF PERSONS AND PROPERTY
- --
1. Safety
- -- ------
a) Safety Programs. The Contractor shall be responsible
---------------
for initiating, maintaining and supervising all safety precautions and programs
in connection with the performance of this Agreement, including, without
limitation, appropriate precautions and programs for areas in and around the
Site.
a) Applicable Laws. The Contractor shall give notices
----------------
and comply with all applicable Laws bearing on the safety of persons or property
or their protection from damage, injury or loss, including, without limitation,
the Federal Occupational Safety and Health Act.
1. Safety of Persons and Property.
----------------------------------
a) Safety Precautions. The Contractor shall take all
-------------------
reasonable precautions for the safety of, and shall provide all reasonable
protection to prevent damage, injury or loss to:
(a) employees and subcontractors or other persons performing the Work and
all other persons who may be affected thereby, including, without limitation,
employees, patrons, and guests of Owner's casino;
(b) the Work and materials and equipment to be incorporated therein, whether
in storage on or off the site, under care, custody or control of the Contractor
or subcontractors; and
(c) other property at the Site or adjacent thereto, such as buildings,
trees, shrubs, lawns, walks, pavements, roadways, structures and utilities,
including, without limitation, Owner's casino.
a) Safeguards. The Contractor shall erect and maintain,
----------
as required by existing conditions and the performance of this Agreement, all
reasonable safeguards for safety and protection, including posting danger signs
and other warnings against hazards, promulgating safety regulations, and
notifying owners and users of adjacent sites and utilities.
a) Dangerous Materials. When use or storage of
--------------------
explosives or other dangerous materials or equipment or unusual methods are
necessary for execution of the Work, the Contractor shall exercise utmost care
and carry on such activities only under the supervision of properly qualified
personnel.
a) Injury and Damage. Contractor shall protect the
-------------------
Work, employees of Owner, all hotel guests and casino patrons and all other
persons from risk of death, injury or bodily harm arising out of, or in any way
connected with, the Work and shall remedy all damage or loss to any property, in
whole or in part, caused by or attributable to Contractor, Contractor's
Architect, or any purchasing agent, subcontractor, supplier, materialman or
manufacturer employed or retained by Contractor, or any other person or persons
employed by them, or any of them, or anyone else for whose acts any of them may
be liable.
a) Safety Personnel. The Contractor shall designate a
-----------------
responsible member of the Contractor's organization at the Site whose duty shall
be the prevention of accidents.
a) Loading. The Contractor shall not load or permit any
-------
part of the construction or Site to be loaded so as to endanger the safety of
persons or property.
a) Emergencies. In an emergency affecting safety of
-----------
persons or property, the Contractor shall act, at the Contractor's discretion,
to prevent threatened damages, injury or loss.
a) Security. The Contractor shall take all precautions
--------
and measures as may be reasonably necessary to secure the Site at all hours,
including evenings, holidays and non-work hours. Such precautions may include
the provision of security guards.
1. Placement of Signs. Contractor shall not place or permit
-------------------
its subcontractors to place any temporary or permanent signs on any portion of
the Site or the Work except upon prior written authorization of Owner.
1. Orderly Maintenance of Site. At all times during the
------------------------------
course of construction, Contractor shall maintain the Site in a clean, safe and
orderly condition. Rubbish, waste material and surplus material shall be
collected or removed by Contractor daily or more often as Owner may require.
Upon completion of the Project, the Contractor shall remove from the applicable
area all temporary structures, debris and waste placed or created by Contractor
or resulting from the Work and shall clean all surfaces, fixtures, equipment and
parts of the Work. If Contractor fails to perform a cleanup function within
seven (7) days after written notification by Owner to do so, Owner may proceed
with such functions as Owner adjudges necessary and in the manner Owner may deem
expedient, and the Owner shall have the absolute right to deduct the cost
thereof from payments due to the Contractor. Written notification by Owner to
Contractor's project manager or superintendent of the required cleanup functions
provided in this Section 2.10.4 shall be considered proper notice to Contractor.
1. Liability for Work in Place and on the Site. Contractor
---------------------------------------------
shall be liable for any loss or damage to any portion of the Work in place or to
any equipment, machinery, apparatus, tools and materials on the Site prior to
their installation. Owner shall not be obligated to protect any of the Work,
said obligation being that of the Contractor.
1. No Unreasonable Interference with Owner's Operations. The
----------------------------------------------------
Contractor shall fully cooperate with Owner with respect to Owner's gaming and
related operations in the Owner's casino, and shall perform the Work so as to
minimize any unreasonable interference or conflicts with Owner and its
employees, guests and casino patrons and its casino business (including
utilization of parking lots and adjoining streets) and in a manner designed to
accomplish and complete all Work within the Schedule. Contractor shall not
commit or permit any act which will unreasonably interfere with the Owner's
gaming and related operations.
1. Protection of and No Interference with Adjoining
------------------------------------------------------
Properties. Contractor shall not obstruct, or permit any subcontractor,
-
purchasing agent, employee or representative of Contractor to obstruct, any
adjoining streets, and shall not allow any automobiles, trucks, trailers,
construction equipment, materials or supplies belonging to Contractor or any
subcontractor, purchasing agent, employee or representative of Contractor, or be
parked or stored on adjoining streets in locations where parking is prohibited
by any governmental entity having jurisdiction over the Work, nor shall
Contractor's Work, construction equipment, or use of the adjoining streets or
the Site disrupt the orderly flow of vehicles or traffic on adjoining streets or
pedestrian traffic. Contractor shall not, during the course of its construction
activities, interfere with, or permit any architect, subcontractor, purchasing
agent, employee or representative of Contractor to interfere with, the provision
of water, sewer, electricity, gas, telephone and other utility services to the
Owner's casino or to adjoining or neighboring properties (except as such may be
necessary in order to cause such services to be connected).
A. USE OF OWNER'S FACILITIES
- --
1. Prohibition of Use Without Consent. Contractor shall not
-----------------------------------
use Owner's tools, materials, vehicles, equipment, labor, facilities (including
sanitary facilities), hoists, elevators, scaffolding or any other property of
Owner without the prior written consent of Owner. Contractor may use Owner's
service elevator for stocking of floors with hotel materials and removal of
trash on a scheduled basis.
1. Indemnification Against Loss. In the event, following
------------------------------
obtaining Owner's prior written consent, Contractor shall use Owner's tools,
materials, vehicles, equipment, labor, facilities (including sanitary
facilities), hoists, elevators, ladders, scaffolding, or any other property of
Owner, Contractor shall accept full responsibility therefor, shall reimburse
Owner at a predetermined rate (said reimbursement to constitute a Cost of the
Work) and shall indemnify and hold Owner harmless from any and all liability to
persons or property arising out of or in connection with such use.
I. ARTICLE : REPRESENTATIVES OF OWNER AND CONTRACTOR
A. DESIGNATION OF OWNER'S AGENT AND CONTRACTOR'S AGENT
Each party hereby agrees to designate, in writing, to the other party
one individual (the "Agent") who shall be authorized to act on such party's
behalf with respect to this Agreement and to make decisions during the course
of the Work. Further, each party acknowledges its understanding that, except
for Change Orders which shall be required to be executed in the manner
previously provided in this Agreement, the decisions made by its Agent shall be
binding on such party provided such decisions are expressed in writing and
signed by such Agent. In the event Contractor receives written notification
(other than a Change Order request) from any person other than the designated
Owner's Agent, Contractor, prior to complying therewith, shall have the
obligation to request Owner's Agent to verify in writing that such written
direction binds Owner pursuant to this Agreement. The Agent of each party may
be changed at any time, and from time to time, by giving written notice signed
by such representative of such change to the other party. Initially, the
Owner's Agent shall be:
Edward F. Reese
Isle of Capri Casinos, Inc.
711 Dr. Martin Luther King Jr. Boulevard
Biloxi, MS 39530-3848
and the Contractor's Agent shall be:
Ed J. Haselden, Pres.
Haselden Construction Inc.
6950 South Potomac Street
Englewood, Colorado 80112
A. RIGHTS OF OWNER'S AGENT
Owner's Agent shall have all the rights of access, inspection,
investigation, observation and similar rights provided in this Agreement to be
exercised by Owner, but Owner's Agent shall be under no obligation to visit the
Site or to take any such action with respect to the Work. Further, such visits
and actions, if made, shall not impose any obligations upon Owner and shall not
in any way limit, reduce, diminish or otherwise qualify the obligations of
Contractor hereunder or be deemed a waiver of any rights of Owner under this
Agreement to object to or otherwise seek corrections in the Work not done in
accordance with the Construction Documents, nor shall the making of any such
action by Owner's Agent without any objection be construed as approval by Owner
of any work in progress.
I. ARTICLE : OWNER'S RIGHT TO OUTSIDE INSPECTION
A. RIGHT TO DESIGNATE
In addition to Owner's right to designate the Owner's Agent and the
rights of such Owner's Agent to have access to and inspect the Project from time
to time as provided in Article 3 above, Owner shall have the additional right,
but not the obligation, during the design and construction of the Work, to hire
outside architects, engineers, testing agencies and laboratories, and other like
parties to inspect the Work to determine whether it is being performed in
accordance with the Construction Documents, and to inspect all material and
equipment stored or warehoused off the Site.
A. LIMITATION OF OWNER'S LIABILITY
Contractor's duties, liabilities or obligations pursuant to this
Agreement shall not be relieved, diminished, reduced or otherwise limited by
virtue of the appointment by Owner of any such outside party or the performance
by such outside party of any of its duties or inspections, it also being the
agreement and understanding of the parties hereto that such outside parties
shall have no duty or obligation whatsoever toward Contractor.
I. ARTICLE : OWNER'S RIGHT OF ENTRY AND OCCUPANCY FOLLOWING
SUBSTANTIAL COMPLETION
A. RIGHT TO ENTER
In addition to Owner's right of inspection throughout the period of
design and construction of the Work, Owner shall have the right to enter upon
and occupy the Project after the date of Substantial Completion. Following
Owner's entry, and in exercising its right of occupancy, Owner shall have the
right to take or cause to be taken any actions within the occupied portion of
the Project deemed necessary or desirable by Owner, in Owner's total and
absolute discretion, in carrying on, operating, using and occupying such portion
of the Project.
A. NO INTERFERENCE WITH CONTRACTOR'S REMAINING WORK
The entry and occupancy by Owner of the Project shall not be deemed an
acceptance of the Work. Owner, in entering upon and occupying any portion of
the Project prior to Contractor's total and final completion of all of its
construction obligations with respect to the Work, shall not unreasonably or
materially interfere with the remaining construction Work (it being recognized
by Contractor that any entry or occupancy by Owner prior to total and final
completion of the Work will have some affect on Contractor's operations on the
Site).
A. CONSTRUCTION MEANS & METHODS
The Owner shall have no control over or charge of, and shall not be
responsible for, construction means, methods, techniques, sequences or
procedures, or for safety precautions or programs, in connection with the Work,
all of which are the sole responsibility of the Contractor.
A. REJECTION OF WORK
The Owner shall have the right and the authority to reject Work which
is defective or deficient, or which otherwise does not conform to this
Agreement.
A. OWNER'S RIGHT TO STOP THE WORK
If the Contractor fails to correct defective or nonconforming Work as
and when required under this Agreement (including, without limitation, pursuant
to Section 2.6.9), or fails to carry out the Work in accordance with this
Agreement, or fails or refuses to provide a sufficient amount of properly
supervised and coordinated labor, materials or equipment so as to be able to
complete the Work within the Schedule, and (except in cases of emergency) such
failure or refusal continues for seven (7) days after receipt of written notice
from the Owner, the Owner may, by a written directive, order the Contractor to
stop the Work, or any portion thereof, until the cause for such order has been
eliminated; provided, however, that the Owner will permit the cause of such
stop-work order to be corrected by the Contractor. However, the right of the
Owner to stop the Work shall neither give rise to a duty on the part of the
Owner to exercise this right for the benefit of the Contractor or any other
person or entity, nor relieve the Contractor of any of its responsibilities and
obligations under or pursuant to this Agreement. In confirmation and
furtherance of the foregoing, the Contractor shall not have any claim for an
increase in the Guaranteed Maximum Price or a change in the Schedule due to
stoppage in the Work as provided in this Section. Nothing in this Section shall
limit or diminish the Owner's rights under Section 2.6.9.
A. OWNER'S RIGHT TO CARRY OUT THE WORK
If the Contractor defaults under this Agreement or neglects to carry
out the Work in accordance with this Agreement and fails within a seven (7) day
period after receipt of written notice from the Owner to commence and continue
correction of such default or neglect with diligence and promptness, or fails
within a seven (7) day period after receipt of written notice from the Owner to
eliminate (or diligently commence to eliminate) the cause of any stop work order
issued under Section 5.5 hereof, the Owner may, without prejudice to any other
rights or remedies the Owner may have, including declaring the Contractor in
default, and with or without terminating this Agreement, correct such
deficiencies, and deduct an amount equal to the expenditures incurred by the
Owner in so doing from amounts due or to become due to the Contractor. If the
payments then or thereafter due to the Contractor are not sufficient to cover
the amount of the deduction, the Contractor shall pay the difference to the
Owner on demand. Nothing in this Section shall limit or diminish the Owner's
rights under Section 2.6.9.
A. OWNER'S RIGHTS NOT LIMITED
The rights and remedies provided in this Article 5 shall be in
addition to, and not in limitation of, any other rights or remedies otherwise
available to the Owner under this Agreement or at law and/or in equity.
A. OWNER APPROVALS
The Contractor acknowledges and agrees that any review, approval,
comment or evaluation by the Owner of any plans, drawings, specifications or
other documents prepared by or on behalf of the Contractor shall be solely for
the Owner's determining for the Owner's own satisfaction the suitability of the
Project for the purposes intended therefor by the Owner, and may not be relied
upon by the Contractor, its subcontractors or any other third party as a
substantive review thereof. The Owner, in reviewing, approving, commenting on
or evaluating any plans, drawings, specifications or other documents, shall have
no responsibility or liability for the accuracy or completeness of such
documents, for any defects, deficiencies or inadequacies therein or for any
failure of such documents to comply with the requirements set forth in this
Agreement; the responsibility for all of the foregoing matters being the sole
obligation of the Contractor. In no event shall any review, approval, comment
or evaluation by the Owner relieve the Contractor of any liability or
responsibility under this Agreement, it being understood that the Owner is at
all times ultimately relying upon the Contractor's skill, knowledge and
professional training and experience in preparing any plans, drawings,
specifications or other documents.
A. OWNER INFORMATION
Any information or documentation provided by the Owner to the
Contractor relating to the Project and/or existing conditions upon, about,
beneath or adjacent to the Site, including, without limitation, any information
pertaining to subsurface conditions, borings, test pits, tunnels and other
conditions affecting the Site, is provided only for the convenience of the
Contractor. The Owner makes no representation or warranty as to, and assumes no
responsibility whatsoever with respect to, the sufficiency, completeness or
accuracy of such information and makes no guarantee, either express or implied,
that the conditions indicated in such information or documentation are
represen-tative of those existing at the Site or existing throughout the
performance of the Work, and there is no guarantee against unantici-pated or
undisclosed conditions.
I. ARTICLE : PUNCH LISTS AND FINAL COMPLETION
A. PREPARATION OF PUNCH LIST
Contractor shall submit a list (a "Punch List") at the time it submits
application for certificate of Substantial Completion for the Project. Owner
shall have the obligation to supplement and amend such Punch List and attach
such amended and supplemental Punch Lists to the certificate of Substantial
Completion. Following the date the Project is Substantially Completed, Owner
shall have the right to amend and supplement the Punch List, setting forth items
which need completion in accordance with the Construction Documents and good
workmanship. All such Punch Lists shall be submitted to Contractor as soon as
practicable but in no event later than twenty (20) days following the
Substantial Completion Date. Contractor agrees that as soon as reasonably
possible, but in any event within thirty (30) days after receipt of any such
Punch List, Contractor shall complete, or commence and diligently pursue the
completion of, all of the items set forth therein. If Contractor shall fail to
complete, or fail to commence and thereafter fail to diligently pursue the
completion of, as the case may be, such items within the prescribed time period,
Owner, after giving written notice and two (2) days to cure, shall have the
right, but not the obligation, to cause such items to be completed and to deduct
from any amount due Contractor the cost of completing such items.
A. FINAL COMPLETION
For purposes of this Agreement, the terms "Finally Completed",
"Finally Complete", and "Final Completion" shall be deemed to have occurred when
(i) all items identified on the Punch Lists have been completed, (ii) all other
duties and obligations of the Contractor under this Agreement have been fully
performed, and (iii) final written acceptance of the Work by Owner has occurred.
I. ARTICLE : CONTRACTOR'S WARRANTY OF CONSTRUCTION
A. WARRANTY
Contractor hereby makes the following warranties and guarantees with
respect to the Work undertaken by Contractor pursuant to this Agreement:
1. Warranty with Respect to Professional Services. All
---------------------------------------------------
design, architectural, engineering and other professional services to be
provided by Contractor as part of the Work shall be performed (i) by duly
licensed and certified Colorado architects and engineers, (ii) with due
diligence and to a generally recognized professional standard of competence,
quality and technical accuracy, and (iii) in strict conformity with all the
requirements of this Agreement.
1. Warranty with Respect to Construction Work. All
-----------------------------------------------
construction work to be provided by Contractor as part of the Work shall be
constructed, supplied and installed by qualified, careful and efficient workers,
performed in a good and workmanlike manner, free from defects in design,
workmanship and material, and in strict conformity with the Construction
Documents and with all the requirements of this Agreement.
1. Warranty With Respect to Materials and Equipment. All
----------------------------------------------------
materials, supplies and equipment to be furnished by Contractor in connection
with the Work will be of good quality and new, free of faults, defects and
deficiencies, and will be safe for its intended purpose.
1. Period of Warranty. The warranties and guarantees set
--------------------
forth in this Section 7.1 shall survive termination or expiration of this
Agreement, and shall remain in full force and effect for a period of one (1)
year after the date of Substantial Completion.
A. EXTENT OF WARRANTY
If, at any time prior to the expiration of the warranty period set
forth in Section 7.1.4, Owner shall discover any breach of the Contractor's
warranties, the Contractor shall, upon written notice from the Owner and at
Contractor's sole expense, immediately correct such failure or breach (which
corrective action shall include, without limitation, the correction of the
defective or nonconforming work, the removal and replacement of other portions
of the Work that are necessary to be removed to gain access to the portion of
the Work to be corrected, the repair or replacement of any damage caused by said
defective or nonconforming work, and any necessary removal, disassembly,
reinstallation, reconstruction, retesting and reinspection of any part of the
Work). Contractor shall indemnify, hold harmless, reimburse and make whole
Owner for any and all other damages, costs or liabilities suffered by Owner or
others to whom Owner is liable by reason of or as a result of any breach of
Contractor's warranties or the failure of Contractor to promptly and properly
correct same (including without limitation bodily injury, death, and property
damage). All defective or nonconforming materials which Owner requires to be
replaced shall be removed promptly from the Site by Contractor. All costs and
expenses incurred by Contractor in correcting or replacing any defective or
nonconforming work or in undertaking any of its various obligations delineated
in this Section shall not constitute Cost of the Work but rather shall be
undertaken by Contractor from its own funds. If Contractor fails promptly to
commence correcting any nonconformity or defect as directed by Owner, Owner may
correct such defect or nonconformity and charge the cost to the Contractor.
A. NON-APPLICABILITY OF WARRANTY
The obligations of Contractor's warranty shall not extend to any Owner
Furnished FF&E.
A. SURVIVAL OF WARRANTY
The provisions of the warranties provided in this Article 7, together
with any applicable warranties and guarantees of Contractor's subcontractors and
suppliers which Contractor has agreed to assign or otherwise give to Owner
pursuant to Section 7.5, shall survive inspection, approval, test and acceptance
of and payment for the Work and shall run to and inure to the benefit of Owner,
its successors and assigns.
A. ASSIGNMENT OF WARRANTIES
Contractor agrees to assign to Owner, or otherwise give Owner the
benefit of, all warranties and guarantees which Contractor has, or to which
Contractor is entitled, from Contractor's subcontractors, suppliers, materialmen
and manufacturers. Owner shall have the absolute right to assign to any party,
in whole or in part, or to otherwise give any party the benefit of all
warranties or guarantees which Owner has or to which Owner is entitled under
this Agreement without the necessity of obtaining the consent of the warranting
party, and such assignment shall not in any way diminish or abrogate such
warranties.
A. MANUALS AND TRAINING
Contractor shall deliver to Owner, upon the date of Substantial
Completion, all operating and training manuals applicable to systems, equipment
and material located in the Project and copies of the results of all tests done
by Contractor or on Contractor's behalf in conjunction with the Work.
Contractor also agrees to conduct two training sessions of a duration
satisfactory to Owner for the Project designed to train Owner's staff in the
operation and maintenance of the Project's systems following the date on which
Owner enters and takes possession of the Project.
I. ARTICLE : CONTRACT SUM
A. TOTAL COMPENSATION
As full and total compensation for all Work required pursuant to this
Agreement, Owner will pay to Contractor the following amount (the "Contract
Sum"):
1. Cost of the Work. All the Cost of the Work, as such costs
----------------
are enumerated in this Agreement; and
1. Contractor's Fee. A fixed, lump sum fee (except as
-----------------
limited by the Guaranteed Maximum Price) in the amount of One Million Two
Hundred Twenty-Two Thousand and No/100 Dollars ($1,222,000) (the "Contractor's
Fee") for Contractor's administration of this Agreement and as total
compensation for all of Contractor's home office overhead, indirect costs and
profit.
A. CONTRACTOR'S GUARANTEED MAXIMUM PRICE
- --
1. Guaranteed Maximum Price. Contractor hereby guarantees
--------------------------
that the sum of (i) the Cost of the Work and (ii) the Contractor's Fee shall not
exceed the total dollar amount of Nineteen Million Nine Hundred Ninety Five
Thousand and No/100 Dollars ($19,995,000) (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. The Contractor
represents there are no allowances or similar arrangements applicable to or
provided under this Agreement for any portion or phase of the Work and
Contractor agrees not to claim that any portion or phase of the Work is covered
by any allowances or similar arrangements which would permit Contractor to avoid
its obligations to fully and totally complete all of the Work required to be
completed by Contractor pursuant to this Agreement for an amount not in excess
of the Guaranteed Maximum Price.
2. Owner Furnished FF&E Excluded. Contractor and Owner
--------------------------------
acknowledge and agree that Owner will provide certain furniture, fixtures and
equipment (hereafter referred to as "Owner Furnished FF&E") to be incorporated
into the Site which do not constitute a part of the Work, which shall not
constitute Cost of Work, and which shall not be chargeable against the
Guaranteed Maximum Price. Owner shall be solely responsible for furnishing and
installing the Owner Furnished FF&E and shall pay all costs and expenses in
connection therewith. A detailed enumeration of the Contractor supplied and
installed FF&E (which is part of the Work) and the Owner Furnished FF&E is set
forth in the Equipment/Material Responsibility Matrix attached hereto as Exhibit
G.
A. EXCESS AND SAVINGS
- --
1. Excess Cost Above Guaranteed Maximum Price. In the event
-------------------------------------------
that the sum of the Cost of the Work and the Contractor's Fee exceeds the
Guaranteed Maximum Price, such excess shall be the sole responsibility of the
Contractor and the Contractor shall be obligated to fully complete the Work
required to be performed by Contractor pursuant to this Agreement, regardless of
cost, and to bear the full and entire burden of any costs and expenses which
exceed the Guaranteed Maximum Price from its own funds and not from the funds of
Owner, and Owner shall not be obligated to pay any portion of said excess above
the Guaranteed Maximum Price.
1. Savings Below Guaranteed Maximum Price. If, as of the
------------------------------------------
date of Final Completion, the sum of the Cost of the Work and the Contractor's
Fee is less than the Guaranteed Maximum Price, the amount of the savings shall
accrue and inure to the benefit of the Owner and Contractor as follows:
With respect to costs relating to furniture, fixtures and
equipment ("FF&E"), the first $250,000 of savings shall accrue entirely to the
Owner, with any additional savings being split 75% to the Owner and 25% to the
Contractor; and
With respect to costs other than those relating to FF&E, the first $500,000
of savings shall accrue entirely to the Owner, with any additional savings being
split 50% to the Owner and 50% to the Contractor.
A. COST OF THE WORK
The term "Cost of the Work" shall mean the costs enumerated below
which were necessarily incurred in the proper performance of the Work and
actually paid by the Contractor at rates not higher than the standard paid in
the locality of the Work except with prior consent of the Owner, excluding (i)
the items specifically denoted as not being Cost of the Work elsewhere in this
Agreement, (ii) the credits enumerated in Section 8.5, (iii) the costs
enumerated in Section 8.6, and (iv) any other costs which are not specifically
provided in this Section 8.4.
1. Salaries or Wages. Salaries or wages paid for all labor
-------------------
(including part-time senior project manager, full-time project manager,
part-time accountant, project engineers, assistant superintendent,
superintendent, field engineer, foremen, timekeeper and clerk, expediter,
teamsters, truck drivers, mechanics, craft persons, laborers, and all others
employed at the Site as "general conditions" personnel) approved by Owner as
being necessary for the proper conduct of the Work and only for the time
employed on the Work (excluding safety personnel); but only those in the direct
employ of the Contractor and only those wages or salaries provided under an
applicable collective bargaining agreement, or under a salary or wage schedule
agreed upon in advance by the Owner and Contractor. All such salaries and wages
shall be reasonable in light of the type and the location of work to be
performed; provided, however, the parties recognize that the part-time senior
project manger, the part-time MEP coordinator and the part-time accountant will
work from the Contractor's home office.
1. Overtime Payments. Overtime premium payments to
------------------
Contractor employees where straight time salaries and wages are reimbursable as
Cost of the Work.
1. Contractor Self-Perform Trade Work. Payments toward
-------------------------------------
Contractor's lump sum bid(s) for trade work which Contractor is self-performing
pursuant to the terms of this Agreement; it being understood that all such
self-performed work shall be compensated through the Contractor's lump sum
bid(s) and no such work shall be charged as any other Cost of the Work.
1. Cost of Employee Benefits. Cost of all employee benefits
--------------------------
and actual taxes incurred during the performance of the Work for such items as
unemployment compensation, payroll taxes, workmen's compensation, general
liability insurance, social security, safety expense, 401(k)/pension, medical
insurance, training fund, vacation fund, employee bonus fund, and employee
recruitment fund, insofar as such cost is based on wages, salaries, or other
remuneration paid to employees of the Contractor and included in the Cost of the
Work under Sections 8.4.1 through 8.4.2.
1. Travel and Subsistence Expenses. The proportion of
----------------------------------
reasonable local transportation, travel and subsistence expenses of the
Contractor's full time on site employees incurred while traveling in discharge
of duties connected with the Work, said travel, transportation and subsistence
activities to be made in accordance with Haselden Construction, Inc.'s
policies.
1. Cost of Material and Supplies. Cost of all structural
---------------------------------
accessories, materials, supplies and equipment incorporated into the Work,
including costs of transportation, storage and installation thereof, less any
countercharges collected from the suppliers thereof. Storage costs may include
those expenses for storing pre-cast concrete or other materials fabricated
specifically for this Project.
1. Contractor's Architect's Fees. All architectural,
-------------------------------
engineering and consulting fees and expenses incurred in designing and
constructing the Project and administering the Agreement and paid by Contractor
to the Contractor's Architect.
1. Subcontractor's Payments. Payments made by the Contractor
-------------------------
to subcontractors for Work performed pursuant to subcontractors under this
Agreement, less any countercharges collected from such subcontractors.
1. Cost of Tools, Equipment and Facilities. Cost, including
----------------------------------------
transportation, loading and unloading, demurrage, express, freight, cartage and
maintenance, of all materials, supplies, equipment, temporary facilities or
other structures utilized on the Site by Contractor, temporary fences, guard
rails, scaffolds, barricades, safety railings, field and office equipment.
1. Cost of Major Construction Equipment. Purchase or rental
-------------------------------------
charges of all necessary major construction tools and equipment, exclusive of
hand tools, used at the Site of the Work, whether purchased or rented from the
Contractor or others; expenditures for transportation and delivery costs to and
from the Site of the Work of said tools and construction equipment, loading and
unloading, assembling, erecting, installing, moving and dismantling, and minor
repairs and replacements during use on the Work. Rental charges for machinery
and equipment rented from the Contractor or a subsidiary shall not exceed
eighty-five percent (85%) of the Association of Equipment Dealers rate. Rental
charges for machinery and equipment rented from a third party unrelated to
Contractor shall be reimbursed at the full rate charged by the third party to
Contractor.
1. Insurance Premiums. Cost of premiums for all insurance
-------------------
which the Contractor may be required to purchase and maintain pursuant to the
provisions of this Agreement and any additional professional liability insurance
required by Owner pursuant to this Agreement; provided that all general
liability insurance shall be billed at a lump sum amount of $186,970 and all
professional liability (E&O) insurance shall be billed at a lump sum amount of
$42,387.
1. Taxes. Sales, use or similar taxes related to the Work
-----
and for which the Contractor is liable.
1. Fees, Royalties and Deposits. Permit fees, licenses,
-------------------------------
tests, royalties, and deposits lost for causes other than (i) the Contractor's
negligence, (ii) Contractor's failure to timely make any payments or (iii)
Contractor's noncompliance with its obligations pursuant to this Agreement.
1. Uninsurable Losses. Losses and expenses, not compensated
-------------------
by insurance, sustained by the Contractor in connection with the Work, provided
they have resulted from causes other than the fault or neglect of the Contractor
and so long as Contractor has totally complied with the insurance obligations
imposed upon Contractor in this Agreement. Such losses shall include
settlements made with the written consent and approval of the Owner.
1. Communication Expenses. Minor expenses such as long
-----------------------
distance telephone calls and telephone service at the Site; expressage; custom
duties on materials, drawings, or Contractor's equipment; cost of telegraph
charges incurred at the Site of the Work by Contractor in connection with the
Work; cost of progress photographs and negatives; and similar petty cash items
in connection with the Work.
2. General Conditions. Cost of fuel, power, light, temporary
------------------
heat, winter protection, temporary covers for openings, scheduling costs and
water used during construction.
1. Clean-up. Cost of removal of all debris.
--------
1. Emergency. Cost incurred due to an emergency affecting
---------
the safety of persons and property on the Site.
1. Other Agreement Cost. Any and all other items elsewhere
----------------------
in this Agreement specifically and expressly provided to be included in this
Cost of Work.
1. Pre-Approved Cost. Other costs incurred in the
------------------
performance of the Work if and only to the extent approved in advance in writing
by the Owner.
A. CREDITS TO COST OF THE WORK
Cost of the Work shall be credited with (reduced by) the following
amounts:
1. Proceeds of Sale. Proceeds of sales of all tools, surplus
-----------------
materials, construction equipment, and temporary structures which have been
purchased for and charged to the Work and remaining after Final Completion,
whether such sales are made to Owner, Contractor or some other party.
1. Discounts and Refunds. Trade and time discounts, rebates
----------------------
and refunds or commissions allowed to or collected by Contractor from suppliers
of materials or from subcontractors, together with all other refunds, returns,
or credits received for return of materials or on bond or insurance premiums, or
otherwise. Contractor shall notify Owner in writing of any cash discounts
applicable to the Work if the amount of the discount exceeds $1,000. To the
extent Owner makes timely payments to Contractor with respect to the items
subject to discounts, rebates and refunds so that the funds are on deposit with
and available for use by Contractor, all such savings shall accrue to the
benefit of the Owner as a reduction in the Cost of the Work; provided however,
that any cash discounts of $1,000 or less or which are received as a result of
payment by Contractor out its own funds, shall inure to the benefit of
Contractor.
1. Material Retained by Contractor. Fair market value at the
-------------------------------
time of removal of all material, tools and equipment actually used on the Work,
the purchase price for which was included in the Cost of the Work and which upon
completion of the Work were retained by Contractor.
1. Deposits. The full return amount of deposits made and
--------
charged against the Work for which Contractor obtains credit or refund.
1. Proceeds of Sale of Excess Equipment. Proceeds of sale of
------------------------------------
any of Owner's excess equipment which are salvageable.
A. COST NOT TO BE REIMBURSED
Cost of the Work shall not include any of the following items:
1. Office Personnel Expenses. Salaries, expenses or other
---------------------------
compensation of the Contractor's personnel at the Contractor's principal office
and branch offices, except as otherwise specifically permitted in Section 8.4.
1. Office Expenses. Expenses of the Contractor's principal
----------------
and branch offices, other than the field office.
1. Capital Expenses. Any part of the Contractor's capital
-----------------
expenses, including interest on the Contractor's capital employed for the Work.
1. Unpermitted Rental Cost. Except as specifically provided
-------------------------
for in Section 8.4.10, rental costs of machinery and equipment.
1. Overhead and General Expenses. Overhead or general
--------------------------------
expenses of any kind, except as may be expressly included in Section 8.4.
1. Warranty and Corrective Work. All costs and expenses
-------------------------------
associated with warranty or corrective work by Contractor.
1. Preconstruction. All preconstruction costs and expenses.
---------------
1. Unincluded Items. The cost of any item not specifically
-----------------
and expressly included in the items described in Section 8.4.
1. Excluded Items. The cost of any item specifically and
---------------
expressly excluded from Cost of the Work in various provisions of this
Agreement.
1. Guaranteed Maximum Price Excess. Costs in excess of the
---------------------------------
Guaranteed Maximum Price, if any, as such Guaranteed Maximum Price may be
adjusted under this Agreement.
B. AUDIT
- --
1. Right to Conduct Audit. Owner shall have the right to
-------------------------
conduct an audit of all payments made and costs incurred by Contractor during
the term of this Agreement and for a period of three (3) years after the date of
Final Completion. Contractor agrees to retain all pertinent records applicable
to the Work for said period of time. If the audit indicates that any sums have
been paid in error or upon erroneous applications, such sums shall be adjusted
by the audit and Contractor shall pay Owner all sums shown by said audit to be
due to Owner.
1. Imposition of Requirement on Subcontractors. With respect
-------------------------------------------
to any subcontractors who entered into approved subcontracts with Contractor
where the basis of compensation to the subcontractor was "guaranteed maximum
price," "cost of the work" or "cost plus", the Contractor shall include in all
of its subcontracts appropriate language requiring such subcontractors to comply
with the provisions of this Section 8.7 requiring them to submit to an audit
within three (3) years after the date of Final Completion and to retain all
pertinent records as provided herein.
I. ARTICLE : PAYMENT OF COMPENSATION
A. APPLICATIONS FOR PROGRESS PAYMENTS
- --
1. Time of Submission. Contractor shall prepare and present
-------------------
to Owner, for its approval and for payment, a monthly application for payment
(each, an "Application for Payment") for the Cost of the Work incurred by
Contractor for the previous thirty (30) days, which shall be given under oath of
the person executing the Application of Payment. Applications for Payment shall
be submitted on the last day of each calendar month and shall apply to the
thirty (30) day period ending on the twenty-fifth (25th) day of such calendar
month.
1. Contents of Application for Payment and Attachments. Each
---------------------------------------------------
Application for Payment shall contain or include the following:
a) A statement of the current Guaranteed Maximum Price,
including Change Orders approved and Construction Change Directives issued;
a) The dollar percentage of completion of the
Contractor's Work based on a schedule of values previously submitted to and
approved by the Owner;
a) Acknowledgment of the total of all monies received on
account of this Agreement to and including the payment applied for in the
presented monthly Application for Payment;
a) The net amount of the Cost of the Work due for the
current period, after deducting the retainage provided for under Section 9.5,
except no deduction for retainage on the fees of the Contractor's Architect or
its consultants;
a) A statement of any back charges and credits to which
Owner is entitled;
a) A statement of any claim for charges or extras due to
Contractor;
a) If required by Owner, the names of all
subcontractors, suppliers and materialmen who have supplied labor, materials,
equipment and services to the Site during said thirty (30) day period, together
with documentation (which may include properly certified and correct invoices in
duplicate) sufficient to establish the amount that is owed to them by Contractor
as of the end of said period. Owner shall have the right to review at
Contractor's office the addresses and telephone numbers of all names so
identified by Contractor and said information, together with a repetition of the
information contained in the Application for Payment, upon Owner's request,
shall be provided by Contractor in a sworn statement separately from the
Application for Payment within fifteen business days from the date of Owner's
request;
a) Releases and lien waivers, in form and content
satisfactory to Owner, from the Contractor and from all architects, consultants,
laborers, materialmen and subcontractors with respect to all Work covered by the
Application for Payment. The final Application for Payment shall be accompanied
by final or full waivers of lien from all parties entitled to receive payment in
connection with the performance of the Work. All releases and lien waivers
obtained by Contractor from its architects, consultants, laborers, materialmen
and subcontractors and submitted by Contractor to Owner, together with
Contractor's lien waiver submitted by Contractor to Owner, with respect to all
Work covered by the Application for Payment being processed by Owner may be
contingent upon receipt of payment pursuant to the Application for Payment. All
releases and lien waivers which contain such payment contingency and which
relate to Work for which compensation has been paid by Owner to Contractor
pursuant to the Application for Payment with which they were submitted shall be
resubmitted without such contingency (i) with the immediately subsequent
Application for Payment submitted by Contractor or (ii) within thirty (30) days
following the date of payment of the Application for Payment with which they
were submitted, whichever is earlier;
a) With respect to Changes in the Work, Contractor's
monthly statement shall include such Work only after the procedures set forth in
Section 1.7 for incorporating the change into the Work has been complied with
and shall set forth Owner's Change Order or Construction Change Directive
numbers;
a) With respect to materials not yet incorporated into
the Work, Contractor's monthly statement shall include such materials only to
the extent such materials are (i) needed within sixty (60) days from their
delivery for incorporation into the Work, purchased in order to obtain a price
discount at the direction of the Owner, or if otherwise approved by Owner in its
sole discretion, (ii) delivered and suitably stored at the Site or at some other
bonded location agreed to in writing by Owner, and (iii) readily and
specifically identified as belonging to the Work and not "commodity", "generic"
or "stock" items not identified as belonging to the Work. With respect to all
materials incorporated into the Work, Contractor's monthly statement shall
include such materials only to the extent that the absolute ownership thereof
shall have vested in Owner, and Contractor shall have furnished to Owner, if
required by Owner, the contracts, bills of sale or other Agreement under which
title thereto is claimed; and
a) All other information and documentation which the
Owner requires in order to facilitate the Final Completion of the Work.
A. CONTRACTOR'S ARCHITECT CERTIFICATE
Contractor shall cause Contractor's Architect to issue a certificate
for payment (the "Certificate for Payment") certifying (i) that the portion of
the Work for which the Contractor seeks payment has been properly performed, and
(ii) that the matters set forth in Contractor's Application for Payment, and the
information and documentation submitted therewith, are valid, accurate and
complete; said Certificate for Payment to be forwarded to Owner together with
Contractor's Application for Payment. The Certificate for Payment shall cover
an inspection which was made by Contractor's Architect not more than four (4)
business days prior to the date on which such Certificate for Payment is
forwarded to Owner.
A. DEDUCTIONS
Owner shall have the right to deduct from all the amounts payable to
Contractor hereunder any amounts due Owner by Contractor pursuant to any
provisions of this Agreement.
A. WITHHOLDING
- --
1. Right to Withhold. Owner may withhold monthly progress
-------------------
payments, in whole or in part, in order to protect Owner from loss because of
(but only to the extent of such actual or expected loss):
a) Defective Work not remedied, materials not furnished,
cleanup not performed or any other noncomplying aspects of the Work;
a) Claims, levies, attachments, liens, stop notices or
court orders filed, or which the Owner reasonably believes are likely to be
filed, including claims covered by insurance or bonds until such claims are
accepted by the insurance carrier or bond company (unless the same are caused by
the Owner's failure to make payments hereunder when properly due); provided,
however, as to mechanics' lien claims, if the Contractor furnishes a bond
satisfactory to the Owner, no funds shall be withheld as to such claim;
a) Failure of Contractor to make payments properly and
timely after receipt of Owner's payment to Contractor to its subcontractors or
for labor (including customary fringe benefits), materials or equipment,
transportation or shipping costs, taxes, fees or any other claims growing out of
the Work;
a) A determination by Owner that the Work cannot be
completed for the then remaining unpaid balance of the Guaranteed Maximum Price;
a) Damage to any portion of the Work, another contractor
or to Owner;
a) Reasonable indication in Owner's opinion that the
Work will not be completed in compliance with the Schedule;
a) Unsatisfactory prosecution of the Work by Contractor;
a) Failure to deliver to Owner insurance certificates,
bonds, maintain on the Site the "as-built" drawings, provide final "as-built"
drawings, survey and manuals, failure to properly train Owner's employees,
failure to provide written guarantees or warranties, or failure to obtain
approvals of the Work required by any authority having jurisdiction thereof;
a) Filing by or against Contractor of a petition for
bankruptcy or reorganization; and
a) To the extent any liability, claims, judgements, or
demands which Owner has been indemnified and saved and held harmless by
Contractor under this Agreement, any money due or to become due to Contractor
sufficient to compensate Owner with respect thereto.
1. Conditions for Release of Withheld Amounts. The above
----------------------------------------------
right of Owner to withhold monthly progress payments of Contractor (or portions
thereof) shall remain in effect even though the Contractor, if requested by
Owner, has posted a full payment and performance bond. When the above grounds
are removed by Contractor, to the satisfaction of Owner, payments for the
amounts so withheld will be made by Owner pursuant to the procedures set forth
elsewhere in this Article 9. However, as a condition to resuming such payments,
Owner may require that the Contractor furnish releases in a form satisfactory to
Owner for all claims made under Section 9.4.1.2 and 9.4.1.3 and/or supporting
invoices, receipts or other records to substantiate the amounts paid.
A. RETAINAGE
Owner shall have the right to retain from the gross amount requested
to be paid in each Application for Payment during the term of this Agreement ten
percent (10%) of both the Cost of the Work (excluding fees of the Contractor's
Architect and its consultants) and the Contractor's Fee, which shall be held by
Owner until such time as:
1. Final Inspection. Final inspection of the Project has
-----------------
been made and approved by Owner;
1. Achievement of Final Completion. The Work has been
----------------------------------
certified and accepted by Owner as being Finally Completed; and
1. Remaining Obligations. All other conditions to final
----------------------
payment set forth in this Agreement have been satisfied.
Upon completion of the preceding items, the retainage shall be released as
provided in Section 9.8.
1. No Further Retainage Withheld. Once fifty percent (50%)
-------------------------------
of the Cost of the Work, as adjusted by Change Order or Construction Change
Directive, has been paid by Owner, and so long as (i) Owner is satisfied that
Contractor is performing the Work in accordance with this Agreement, and (ii)
Contractor imposes the same retainage requirements on its subcontractors, Owner
shall stop withholding retainage from future payments. Owner will consider
release or reduction of retainage to the early completion subcontractors.
A. DETERMINATION OF PROGRESS PAYMENTS
- --
1. Schedule of Values. Prior to commencing the Work, the
--------------------
Contractor shall submit to the Owner a "Schedule of Values" allocating the
entire Guaranteed Maximum Price among the various portions of the Work, except
that the Contractor's Fee shall be shown as a separate line item. The Schedule
of Values shall be prepared in such form, and supported by such data to
substantiate its accuracy, as the Owner may require. The Schedule of Values
shall be used as a basis for reviewing and approving the Contractor's
Applications for Payment.
1. Percentage Completion. Applications for Payment shall show
---------------------
the percentage of proper completion of each portion of the Work as of 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 properly 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 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.
1. Progress Payments. Subject to the other terms and
------------------
provisions of this Agreement, the amount of each progress payment shall be
computed as follows:
(i) Take that portion of the Guaranteed Maximum Price properly allocable
to properly 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, less the
retainage specified in Section 9.5.
(ii) Add that portion of the Guaranteed Maximum Price properly allocable
to materials and equipment delivered and suitably stored off-site or on-site for
subsequent incorporation in the Work to the extent permitted in Section
9.1.2.10, less the retainage specified in Section 9.5.
(iii) Add the Contractor's Fee properly allocable to properly completed
Work, which shall be an amount which bears the same ratio to the total
Contractor's Fee as the sum of the Cost of the Work in Sections 9.6.3(i) and
9.6.3(ii) bears to a reasonable estimate of the probable total Cost of the Work
at Final Completion, less the retainage specified in Section 9.5.
(iv) Subtract the aggregate of previous payments made by the Owner.
(v) Subtract amounts, if any, for which the Owner has withheld or
nullified payment as provided in Section 9.4 or as otherwise provided in this
Agreement.
A. PAYMENT OF PROGRESS PAYMENTS
Upon Contractor's compliance with the procedures set forth in this
Article 9 with respect to the submission of its Applications for Payment and the
Certificate for Payment by the Contractor's Architect, Owner will make progress
payments on account of the Cost of the Work and Contractor's Fee to Contractor
within fifteen (15) days after receipt by Owner of the foregoing items,
withholding therefrom pursuant to Section 9.5 the applicable retention amount
and any other amount Owner is entitled to withhold pursuant to this Agreement.
Contractor agrees to pay to its subcontractors, agents and consultants, within a
timely period following Contractor's receipt of its progress payment from Owner,
all amounts due and payable to said subcontractors, agents and consultants which
were included in the Application for Payment for which Owner's progress payment
related.
A. FINAL PAYMENT
Final payment, constituting the retention withheld by Owner and any
other sums and amounts owing to Contractor under the terms of this Agreement,
shall be made by Owner to Contractor within ten (10) days after the occurrence
of the matters identified in Subsection 2.3.1. If a Punch List is submitted
with respect to the Project, then Contractor shall deliver, in writing, its
unconditional promise to complete said Punch List items within a reasonable time
thereafter, and Owner shall retain from said final payment in the event such
Punch List had not been totally completed as of such time a sum equal to two
hundred percent (200%) of the estimated cost of completing such Punch List items
(the "Holdback Amount"). Owner will list each Punch List item separately, and
Owner and Contractor shall agree on the estimated cost of completing each such
Punch List item, which cost shall also be listed separately. Thereafter, Owner
will pay to Contractor monthly, on the twentieth (20th) day of each month, the
amount retained for each said Punch List item completed during the previous
month. Notwithstanding anything to the contrary contained herein, final payment
shall not become due and payable until (i) Owner has received all warranties,
manuals, schematics, "as-built" drawings and such other items as are required by
this Agreement or as Owner may reasonably request, (ii) all certificates of
occupancy, or other approvals required of any governmental authorities have been
submitted to Owner and (iii) a final accounting of the Cost of Work, and all
supporting documentation requested by Owner have been submitted by the
Contractor and reviewed by Owner.
A. PAYMENT NOT ACCEPTANCE
No payment made under this Agreement, nor any partial or entire use or
occupancy of the Project or any portion thereof by Owner, shall be evidence that
the Contractor has performed its obligations under this Agreement, either wholly
or in part, nor shall such payment, use or occupancy be construed as an
acceptance of Work not in accordance with this Agreement.
A. RELEASE OF CLAIMS
Acceptance of final payment by Contractor shall constitute a release
and waiver by Contractor of all claims that Contractor has or may have against
Owner.
A. CONTRACTOR'S LIABILITY FOR EXCESS OVER GUARANTEED MAXIMUM PRICE
No Application for Payment shall be submitted by Contractor to Owner
and no payments shall be required to be made by Owner to Contractor for
expenditures in excess of the Guaranteed Maximum Price, and Contractor shall be
obligated to and shall prosecute the Work to completion and shall pay from its
own funds all costs and expenses of such Work in excess of the Guaranteed
Maximum Price.
A. TITLE
The Contractor warrants that title to all Work covered by an
Application for Payment will pass to Owner no later than the time of payment.
The Contractor further warrants that, by submittal of an Application for
Payment, all Work for which payment has been received from Owner shall be free
and clear of liens, claims, security interests or encumbrances in favor of the
Contractor, subcontractors, material suppliers, or other persons or entities
making a claim by reason of having provided labor, materials and equipment
relating to the Work, and that no basis exists for the filing of any such lien,
claim, security interest or encumbrance. The Contractor shall indemnify, defend
and hold harmless Owner from and against any loss, damage, claim, expense or
cost (including, without limitation, reasonable attorneys' fees) arising out of
or relating to the breach of any of the foregoing warranties.
A. INTEREST RATE
Any amounts properly due to the Contractor or the Owner from the other
party, but which remain unpaid by such other party, shall bear interest at an
annual rate equal to ten percent (10%) from the date due until paid.
I. ARTICLE : INDEMNIFICATION
A. Indemnity. To the fullest extent permitted by law, the
---------
Contractor shall indemnify, defend and hold harmless the Owner and its officers,
directors, employees, agents, affiliates and representatives (the
"Indemnitees"), from and against any and all claims, demands, suits,
liabilities, injuries (personal or bodily), property damage, causes of action,
losses, expenses, damages or penalties, including, without limitation, court
costs and reasonable attorneys' fees, arising or resulting from, or occasioned
by or in connection with (i) negligent or wrongful acts or omissions of the
Contractor, a subcontractor, a subsubcontractor, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable, (ii) Contractor's
failure to comply with applicable Laws, and/or (iii) any breach, default,
violation or nonperformance by the Contractor of any term, covenant, condition,
duty or obligation provided in this Agreement. Notwithstanding the foregoing or
anything to the contrary contained in this Agreement, the Contractor's aggregate
liability to the Owner in relation to design errors or omissions which result
from the performance of professional services hereunder as an architect or
engineer shall be limited to $5,000,000. This indemnification, defense and hold
harmless obligation shall survive the termination or expiration of this
Agreement.
A. No Limitation. In claims against any person or entity
--------------
indemnified under the preceding Section 10.1 by an employee of the Contractor, a
subcontractor, a subsubcontractor, anyone directly or indirectly employed by
them or anyone for whose acts they may be liable, the indemnification obligation
under such Section 10.1 shall not be limited by a limitation on the amount or
type of damages, compensation or benefits payable by or for the Contractor, a
subcontractor, a subsubcontractor or any other above-referenced party under
workers' or workmen's compensation acts, disability benefit acts, other employee
benefit acts, or by common law or case law.
A. Liens. Contractor further agrees to indemnify, save,
-----
protect and hold harmless the Indemnitees from and against any claim of liens or
liens, or both, for labor performed or materials furnished, or both, or to be
used on the Site, and, in case suit on any such claims or liens are brought,
Contractor shall defend said suit at its own cost and expense and shall pay and
satisfy any such lien or judgment as may be established or determined by the
decision of the court in said suit. Contractor agrees within ten days after
written demand to cause the effect of any suit or lien to be removed from the
Site, by bonding or other means acceptable to Owner. In the event Contractor
shall fail to do so, Owner is authorized to cause said lien to be removed or
dismissed and the cost thereof, together with all attorneys' fees and litigation
costs and expenses, shall be deducted by Owner from any monies due to
Contractor; provided, however, that Contractor shall not be required to pay and
release any lien placed on or accruing against the Site solely by reason of
Owner's work during Owner's period of entry and occupancy of the Project or by
reason of the Owner's failure to make payment to Contractor when properly due
under this Agreement.
A. Lost Profits. Notwithstanding anything to the contrary in
------------
this Article 10, Contractor shall have no indemnification duties under this
Article 10 with respect to lost profits or revenues sustained by Owner as a
result a delay in the completion of the Work other than the obligation to pay
liquidated damages as set forth in this Agreement.
I. ARTICLE : INSURANCE
A. CONTRACTOR'S INSURANCE
- --
1. Contractor's Insurance Certificates. Before Contractor
-------------------------------------
mobilizes its forces at the Site or commences the Work at or prepares or
delivers materials to the Site, Contractor shall provide certificates of
insurance evidencing that Contractor has obtained and maintains the insurance
coverages described in this Article 11. Within a reasonable time after Owner's
request, Contractor shall provide Owner with a copy of such policies. The Owner
and such other persons or entities as may be designated by the Owner shall be
named as an additional insureds on all of Contractor's policies referred to
herein (except on Contractor's workers' compensation insurance and professional
liability insurance policies). The insurance coverage afforded under the
policies described herein shall be primary and non-contributing with respect to
any insurance carried independently by the additional insureds. All such
insurance policies shall indicate that as respects the insureds (whether named
or otherwise), cross-liability and severability of interests shall exist for all
coverages provided thereunder. All policies of insurance required under this
Article 11 shall be written on an "occurrence" basis, except the Professional
Liability Insurance, which shall be written on a "claims made" basis. The
insurance specified below shall be placed with insurance companies reasonably
acceptable to the Owner, and shall incorporate a provision requiring the giving
of notice to the additional insureds at least thirty (30) days prior to the
cancellation, non-renewal or material modification of any such policies.
1. Contractor's Liability Insurance. Contractor shall
----------------------------------
purchase and maintain at its sole cost and expense and as a Cost of the Work,
during the term of this Agreement, insurance in the forms and minimum amounts
described in Section 11.2 to protect against claims relating to the liabilities
which may arise out of or result from Contractor's performance of its
obligations under this Agreement, whether such performance be by Contractor, its
agents, employees, Contractor's Architect, the consultants of Contractor's
Architect or any subcontractor, supplier, materialman, or manufacturer employed
by or retained by Contractor, or any other person employed by or retained by
Contractor, or any other person employed or retained by them or any of them or
anyone for whose acts any of them may be liable. Such insurance shall be
written for not less than any limits of liability specified below or required by
law, whichever is the greater, and shall include contractual liability insurance
applicable to Contractor's obligations under this Agreement. Contractor shall,
at all times during the term of this Agreement, maintain insurance with
financially responsible companies having an "A+" rating or better by Best and
who are qualified to transact business in the State of Colorado and, further,
which have been approved by Owner.
A. SCHEDULE OF INSURANCE COVERAGES
- --
1. Worker's Compensation Insurance. A Workers' Compensation
--------------------------------
Insurance Policy in form and substance reasonably acceptable to the Owner and in
an amount not less than the statutory limits (as may be amended from time to
time), including Employer's Liability Insurance with limits of liability of not
less than (i) U.S. $1,000,000 for bodily injury by accident, each accident, (ii)
U.S. $1,000,000 for bodily injury by disease, each employee, and (iii) U.S.
$1,000,000 aggregate liability for disease. The Workers' Compensation &
Employer's Liability Insurance Policies must each include a waiver of
subrogation endorsement in favor of the additional insureds.
1. Commercial General Liability Insurance. A Commercial
-----------------------------------------
General Liability Insurance Policy written with a combined single limit of
liability of not less than $1,000,000.00 for each occurrence of bodily injury
and/or property damage and an annual aggregate of liability of not less than
$2,000,000.00 for bodily injury and/or property damage, and an annual aggregate
of liability of not less than $2,000,000.00 for completed operations and
products liability, including the following coverages and endorsements:
a) Premises and Operations;
a) Broad Form Property Damage;
a) Property Damage Liability, including coverage for
explosion, collapse, and underground property damage hazards (and providing that
an unintentional failure to report hazards shall not invalidate such coverage);
a) Personal Injury Liability (with employee and
contractual exclusions deleted);
a) Independent Contractor's Protective Coverage;
a) Broad Form Contractual Liability;
a) Products/Completed Operations, for three years after
Final Completion of the Work and its acceptance by Owner;
a) A waiver of subrogation endorsement (ISO CG 2010 11
85 (Form B) or equivalent) in favor of the additional insureds; and
a) A "per project" endorsement in favor of the
additional insureds.
1. Comprehensive Automobile Liability Insurance. A
-----------------------------------------------
Comprehensive Automobile Insurance Policy in form and substance reasonably
acceptable to the Owner and including, without limitation, a waiver of
subrogation endorsement in favor of the additional insureds. The Comprehensive
Automobile Liability Insurance Policy must provide coverage for all owned,
hired, rented and non-owned automobiles, and must be written with a combined
single limit of liability of not less than $1,000,000.00 for each occurrence of
bodily injury and/or property damage, and $1,000,000.00 in the aggregate.
1. Umbrella Liability Insurance. An Umbrella Liability
------------------------------
Insurance Policy written in excess of the coverages provided by the insurance
policies described in Sections 11.2.2, 11.2.3 and the Employer's Liability in
11.2.1, in form and substance reasonably acceptable to Owner and including,
without limitation, a waiver of subrogation endorsement and "per project"
endorsement, each in favor of the additional insureds. The Umbrella Liability
Insurance Policy must be written with a combined single limit not less than
$10,000,000.00 for each occurrence of bodily injury and/or property damage, and
an annual aggregate of liability of not less than $10,000,000.00 for bodily
injury and/or property damage.
A. OWNER'S BUILDER'S RISK INSURANCE
- --
1. Builder's Risk Policy. Before Contractor commences the
-----------------------
Work at or prepares or delivers material to the Site but under no circumstances
subsequent to the date of commencement of construction specified in the Notice
to Proceed, Owner will provide certificates of insurance evidencing that Owner
has obtained and maintains "all risk" builder's risk insurance upon the Work,
subject to a deductible amount per occurrence not to exceed One Hundred Thousand
and No/100 Dollars ($100,000.00). Within a reasonable time after Contractor's
request, Owner will provide Contractor with a copy of such policy. The policy
will insure Owner, the Contractor and subcontractors as their interests may
appear.
1. Deductible. Upon each occurrence of property damage
----------
insured by the coverage specified in Section 11.3.1, the Contractor's liability
(in relation to the insurance deductible only) shall be limited to $5,000; it
----
being understood that the Owner will be responsible for any deductible amount in
excess of $5,000.
1. Property of Others. Owner will not insure nor be
--------------------
responsible for any loss or damage to property of any kind owned or leased by
Contractor, Contractor's Architect or any subcontractors, or their employees,
servants, or agents.
1. Builder's Risk Limits of Liability. The policy specified
-----------------------------------
in Section 11.3.1 shall be written in an amount equal to the "replacement cost"
of the Work and the Owner Furnished FF&E.
1. Builder's Risk Deductibles. The policy specified in
----------------------------
Section 11.3.1 shall provide for up to the following deductible amounts:
$ 100,000.00 All perils
250,000.00 Earthquake
250,000.00 Flood
10,000.00 Transit
1. Owner's Use of Project. If the Owner finds it necessary
------------------------
to occupy or use a portion or portions of the Project prior to Substantial
Completion, such occupancy shall commence on the date Owner notifies Contractor,
and the Owner shall obtain from the insurance company or companies providing the
property insurance their consent to such occupancy by endorsement to the policy
or policies, which insurance policies shall also provide that they will not be
canceled or lapse on account of such partial occupancy.
A. PROJECT ERRORS AND OMISSIONS INSURANCE
In addition to the above-referenced insurance coverages and policies,
Contractor shall obtain a "project specific" professional liability insurance
policy written with a limit of liability of not less than $5,000,000.00 for each
claim, and not less than $5,000,000.00 in the aggregate, for errors, omissions
or negligent acts arising out of the performance of (or the failure to perform)
professional services hereunder as an architect or engineer. Such insurance
coverage shall cover Work performed by Contractor's Architect and any other
architects, engineers or structural, mechanical, electrical or other applicable
consultants, and shall be retroactive to the earlier of the date of this
Agreement or the commencement of the services in relation to this Project
(including, without limitation, those performed by the Contractor's Architect
pursuant to its Agreement with the Owner, its Agreement with the Contractor, or
otherwise). Such policy must be maintained for a period of not less than five
(5) years following the date of final payment to the Contractor for all services
provided under this Agreement.
A. NO COVERAGE CHANGES
Each of the above required insurance policies (and the certificates
evidencing the same) shall provide that the coverage therein afforded shall not
be canceled, terminated, reduced, or not renewed except upon the giving of
written notice to (i) Owner with respect to the insurance to be obtained by
Contractor and (ii) Contractor with respect to the insurance to be obtained by
Owner at least thirty (30) days prior to the effective date of such
cancellation, termination, reduction or nonrenewal. In the event Owner or
Contractor, whichever is applicable, receives such written notice that the
coverage evidenced by any such certificate is to be canceled, terminated,
reduced, or not renewed, it shall so inform the other and the other shall
procure and furnish new certificates conforming to the above requirements as
soon as reasonably practical but in any event at least five days before the
effective date of such cancellation, termination, reduction or nonrenewal. In
the event such new certificates within the time specified are not so provided,
the party not obligated to provide such insurance may nevertheless have the
right (but not the obligation) to procure such insurance and back charge the
cost thereof to the other party.
A. WAIVER OF CLAIMS
The Owner and Contractor waive all claims against each other for loss
or damage to any of their respective property which is insured under valid and
collectible insurance policies, but only to the extent of the actual recovery of
property insurance proceeds. Notwithstanding the foregoing, the preceding
waiver shall not be operative in any case where the effect of such waiver is to
invalidate insurance coverage or the right of the insured to recover thereunder.
The Contractor waives all claims against the Owner for loss or damage to tools
and equipment not to be incorporated into the Project.
I. ARTICLE : DEFAULT
--
A. Termination by Owner for Cause. (a) The occurrence of any
-------------------------------
one of more of the following matters constitutes a default by the Contractor
under this Agreement (a "Contractor Default"):
(i) Contractor becomes insolvent or generally fails to pay, or admits in
writing its inability or unwillingness to pay, its debts as they become due;
(ii) Contractor makes a general assignment for the benefit of its
creditors;
(iii) Contractor shall commence or consent to any case, proceeding or
other action (a) seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of Contractor or of Contractor's debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debts, or (b)
seeking appointment of a receiver, trustee or similar official for Contractor or
for all or any part of Contractor's property;
(iv) any case, proceeding or other action against Contractor shall be
commenced (a) seeking to have an order for relief entered against Contractor as
debtor, (b) seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of Contractor or Contractor's debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors, or (c)
seeking appointment of a receiver, trustee, or similar official for Contractor
or for all or any part of Contractor's property;
(v) the breach of any material representation or warranty made by
Contractor herein;
(vi) Contractor attempts to assign, convey or transfer this Agreement or
any interest herein without the Owner's prior written consent; or
(vii) Contractor fails to observe or perform any other covenant,
agreement, obligation, duty or provision of this Agreement, and such failure
continues for thirty (30) days after Contractor's receipt of written notice
thereof from Owner.
(b) Upon the occurrence of a Contractor Default, the Owner may, without
prejudice to any other right or remedy the Owner may have at law and/or in
equity or under this Agreement, terminate this Agreement. The Owner may,
without prejudice to any other right or remedy, take possession of the Site and
of all materials, equipment, tools and machinery thereon owned by the
Contractor, and may finish the Work by whatever method the Owner may deem
expedient. If the cost of finishing the Work exceeds the unpaid balance of the
Guaranteed Maximum Price, the Contractor shall immediately pay the difference to
the Owner.
A. Termination by Contractor for Cause. (a) The occurrence of
-----------------------------------
any one of more of the following matters, and the continuation of the same for
thirty (30) days after the Owner's receipt of written notice thereof from the
Contractor, shall constitute a default by the Owner under this Agreement (an
"Owner Default"):
(i) Owner becomes insolvent or generally fails to pay, or admits in
writing its inability or unwillingness to pay, its debts as they become due;
(ii) Owner makes a general assignment for the benefit of its creditors;
(iii) Owner shall commence or consent to any case, proceeding or other
action (a) seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of Owner or of Owner's debts under any law relating
to bankruptcy, insolvency, reorganization or relief of debts, or (b) seeking
appointment of a receiver, trustee or similar official for Owner or for all or
any part of Owner's property;
(iv) any case, proceeding or other action against Owner shall be commenced
(a) seeking to have an order for relief entered against Owner as debtor, (b)
seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of Owner or Owner's debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or (c) seeking appointment of a
receiver, trustee, or similar official for Owner or for all or any part of
Owner's property; or
(v) Owner fails to observe or perform any covenant, agreement, obligation,
duty or provision of this Agreement.
(b) Upon the occurrence of an Owner Default, the Contractor may
terminate this Agreement. If this Agreement is so terminated, the Contractor,
as its sole and exclusive remedy hereunder, shall be entitled to receive the
following: payment for Work properly performed to the date of termination
(including all retainage and the Contractor's Fee related thereto),
reimbursement for all cancellation charges incurred by the Contractor in
relation to its subcontractors, and reimbursement for proven loss with respect
to materials, equipment, tools, machinery and other out-of-pocket expenses.
I. ARTICLE : TERMINATION BY OWNER WITHOUT CAUSE
Owner shall have the absolute and total right to terminate this
Agreement at any time without cause if Owner decides in its sole and absolute
discretion to abandon or terminate construction of the Project for any reason
whatsoever, including, without limitation, the failure to obtain or revocation
of any license required by the Colorado Gaming Commission for operation of the
Owner's casino, the issuance of any injunction, temporary restraining order or
other court order prohibiting, restricting or limiting Owner from proceeding
with construction of the Project, or the election by Owner not to continue the
Work because of any pending litigation relating to the construction and/or
operation of the Project. If and only in the event Owner terminates the
Agreement pursuant to this Article 13, it will reimburse the Contractor for any
unpaid Cost of the Work which has been expended by Contractor and is due it
under Article 9, plus the unpaid balance of the Contractor's Fee computed based
on the Cost of the Work performed prior to termination of the Agreement, plus
cancellation charges incurred by Contractor in relation to its subcontractors,
and reimbursement for proven loss with respect to materials, equipment, tools,
machinery and other out-of-pocket expenses.
I. ARTICLE : INDEPENDENT CONTRACTOR
With respect to the Work, Contractor's relationship to Owner is that
of an independent contractor and nothing contained herein shall be deemed to
make Contractor the agent, employee or partner of Owner.
I. ARTICLE : DISPUTES
--
A. Dispute Resolution. (a) In the event Owner and Contractor are
------------------
unable to resolve any disputes, claims, controversies or other matters related
to this Agreement (a "Dispute"), the Dispute shall be promptly submitted for
resolution to a committee of three persons, including the President of the
Owner, a neutral third party jointly selected by Owner and Contractor who shall
act as chairperson, and the President of the Contractor (collectively the
"Committee"). If either the President of the Owner or the President of the
Contractor is unable to act at the time a Dispute arises, then either the Owner
or the Contractor, as applicable, shall designate a substitute. Each substitute
member designated by a party shall be reasonably acceptable to the other party.
The decision of a majority shall decide any matter presented to it.
(b) Upon arriving at its decision (which decision shall be by
majority vote as provided above) with respect to any Dispute presented to it,
the Committee will promptly send its decision in writing to the Contractor and
to the Owner. Notwithstanding the foregoing, no decision of the Committee shall
be binding upon the parties; it being expressly agreed by the parties hereto
that they shall thereafter be entitled to refer such Dispute to any court of
competent jurisdiction within the State of Colorado.
(c) Pending final resolution of a Dispute, the Contractor shall
proceed diligently with the performance of its duties and obligations under this
Agreement, and the Owner shall continue to make payments as to undisputed
amounts in accordance with the terms of this Agreement.
I. ARTICLE : HAZARDOUS SUBSTANCES
--
A. Hazardous Substances. (a) If, in the course of performance of
---------------------
the Work, the Contractor encounters on the Site any matter which it reasonably
believes is a Hazardous Substance, the Contractor shall immediately suspend the
Work in the area affected and report the condition to the Owner in writing. In
any such event, the obligations and duties of the parties hereto shall be as
follows:
(i) If it is determined that such condition involves a Pre-Existing
Hazardous Substance, then any required remedial actions shall be performed by
the Owner at its sole cost and expense;
(ii) If it is determined that such condition involves a Hazardous
Substance introduced to the Site after the date of this Agreement by the
Contractor, its subcontractors or any party for whom either may be liable, then
any required, necessary or appropriate remedial actions shall be performed by
the Contractor at its sole cost and expense; or
(iii) If it is determined that the condition does not involve a Hazardous
Substance, the Contractor shall, promptly after receiving written notice from
the Owner authorizing the Contractor to recommence site activities in the
subject area, resume the portion of the Work that had been suspended.
The parties acknowledge and agree that the Contractor shall not commence or
continue any construction activities on any portion of the Site on, in or under
which remedial actions are to be (or are being) performed until such remedial
actions are to the point where construction activities will not interfere with
such remedial actions, as evidenced by appropriate certifications from the
applicable environmental engineer and/or remediation contractor and any required
approvals of any applicable Governmental Authorities. The Contractor agrees to
use good faith diligent efforts to continue the unaffected portions of the Work
and to adjust and reschedule its activities at the Site so as to minimize, to
the extent reasonably practicable, any adverse effect on the progress of the
Work resulting from the performance of any remedial actions.
(b) The Contractor shall not bring or store (and shall prohibit
subcontractors from bringing or storing) Hazardous Substances to or on the Site,
and shall not utilize any construction materials containing asbestos,
polychlorinated biphenyls or urea formaldehyde. As previously indicated, the
Contractor shall be responsible for the removal and cleanup of Hazardous
Substances brought to or generated at the Site by the Contractor, any
subcon-tractor or any party for whose actions the Contractor is responsible
pursuant to this Agreement. In this regard, the Contractor shall comply, and
shall cause its subcontractors to comply, with all environmental laws, statutes,
ordinances, codes, rules, regulations, policies and guidance documents regarding
the generation, handling, storage, treatment and disposal of Hazardous
Substances.
I. ARTICLE : MISCELLANEOUS PROVISIONS
A. GOVERNING LAW
This Agreement shall be construed and governed in accordance with the
laws of the State of Colorado without giving effect to conflicts of law
principles.
A. ASSIGNMENT AND SUCCESSORS
- --
1. No Assignment by Contractor. Contractor shall not,
------------------------------
without the prior written consent of Owner, which consent Owner shall have the
right, in its sole, total and arbitrary discretion to withhold for any reason
whatsoever, assign or transfer this Agreement or any portion or part of the
Work, or assign any payments to others. Any assignment or transfer made without
the prior written consent of Owner, either expressly, impliedly, or by operation
of law, shall be void and of no force or effect.
1. Agreement Binding on Successors and Assigns. Subject to
---------------------------------------------
the foregoing, this Agreement and all of the provisions thereof shall extend to,
be binding upon, and inure to the benefit of (i) Owner and its successors and
assigns and (ii) Contractor and its successors and permitted assigns.
A. NOTICES
Unless otherwise herein expressly provided, all notices, orders and
other communications required or desired to be given under this Agreement shall
be in writing, signed by Owner or Contractor, or their respective duly
authorized agents or attorneys, as the case may be, and shall be deemed to have
been properly given if mailed by United States, registered or certified mail,
with postage prepaid, return receipt requested, if hand delivered or if sent by
a reputable overnight delivery service, addressed as follows:
If to Owner: Isle of Capri Black Hawk LLC
c/o Isle of Capri Casinos, Inc.
711 Dr. Martin Luther King Jr. Boulevard
Biloxi, MS 39530
Attention: Edward F. Reese
If to Contractor: Haselden Construction, Inc.
6950 South Potomac Street
Englewood, Colorado 80112
Attention: Ed Haselden
or to such other address as may, from time to time, be designated by the party
to be addressed, by notice to the other party in the manner hereinabove
provided. Any such notice, order or other communication mailed as provided in
this Section 17.3 shall be deemed to have been given and received on the second
business day next following the postmark date of such notice, order or other
communication if sent by U.S. Mail, or on the date of actual receipt if hand
delivered or sent by overnight delivery service.
A. CUMULATIVE RIGHTS AND REMEDIES
Except as expressly provided herein to the contrary, no right, power
or remedy herein or otherwise conferred upon or reserved to Owner or Contractor
shall be considered to exclude, impair or suspend any other right, power or
remedy, but the same shall be cumulative and shall be in addition to any other
right, power or remedy available under this Agreement, at law or in equity.
A. WAIVER
No action, failure to act or delay in action by Owner or Contractor
shall constitute a waiver, or result in any impairment of any right, power, duty
or remedy afforded any of them under this Agreement, or result in any approval
of or acquiescence in any breach or violation by any of them of its covenants,
agreements and obligations under this Agreement, except as the affected parties
may specifically agree in writing. No waiver of any breach or violation of any
of the covenants, agreements and obligations of Owner or Contractor under this
Agreement shall be construed, taken or held to be a waiver of any other breach
or violation, or a waiver, acquiescence in or consent to any further or
succeeding breach or violation of the same covenant, agreement or obligation.
A. CAPTIONS OR HEADINGS
The index and the captions or headings of the Articles and Sections of
this Agreement are inserted and included solely for convenience and shall never
be considered or given any effect in construing the provisions hereof if any
question of intent should arise.
A. CALENDAR DAYS
As used herein, the terms "days" or "calendar days" shall mean
calendar days, the term "weekdays" or "business days" shall mean regular working
days, excluding Saturdays, Sundays and holidays.
A. PARTIES TO ACT REASONABLY
Owner and Contractor both acknowledge that the provisions of this
Agreement contemplate that the parties hereto will exchange information with
each other and keep each other informed of the progress of the Work, and in each
such instance (except the specific instances where Owner is granted an arbitrary
right which Owner may exercise for whatever reason Owner desires), the parties
agree to be both reasonable and timely so as not to unreasonably delay either
party in the performance of their respective obligations hereunder.
A. SEVERABILITY OF PROVISIONS
The invalidity of one or more provisions of this Agreement shall not
be deemed to invalidate or affect the enforceability of the remainder.
A. ENTIRE AGREEMENT
This Agreement represents the entire agreement between Owner and
Contractor with respect to the subject matter hereof and supersedes all prior
negotiations, representations and agreements with respect thereto, whether
written or oral. Except in relation to Construction Change Directives, this
Agreement may be amended only by written instrument signed by both Owner and
Contractor.
A. NO THIRD PARTY BENEFICIARIES
Nothing contained in this Agreement shall be construed to confer any
rights, powers or remedies upon any parties other than Owner and Contractor,
including without limitation, any rights as a third party beneficiary of this
Agreement.
A. AUTHORITY TO EXECUTE
Each party represents and warrants to the other that this Agreement
has been duly authorized, executed and delivered by and on behalf of each such
party, and constitutes the legal, valid and binding agreement of said parties.
A. INCORPORATION BY REFERENCE
- --
The recitals set forth on the first few pages of this Agreement, as
----------------------------------------------------------------------
well as all Exhibits attached hereto, are hereby incorporated into this
- --------------------------------------------------------------------------------
Agreement by this reference and expressly made a part of this Agreement.
- --------------------------------------------------------------------------------
THIS AGREEMENT IS MADE AND ENTERED INTO as of the day and year first
----------------------------------------------------------------------
above written.
--------------
CONTRACTOR: OWNER:
- ----------- ------
By: By:
- ---
Name: Ed J. Haselden Name: Edward F. Reese
Its: President Its: Vice President
<PAGE>
EXHIBIT A
---------
Definitions
-----------
For purposes of this Agreement, the terms set forth in the following
clauses shall have the meanings ascribed to them:
"Actual cost" has the meaning set forth in Section 1.7.5.1.
"Agent" has the meaning set forth in Section 3.1.
"Application for Payment" has the meaning set forth in Section 9.1.1.
"Certificate for Payment" has the meaning set forth in Section 9.2.
"Change in Law" shall mean and refer to the enactment, adoption,
promulgation, amendment, modification or change in interpretation by a
Governmental Authority after the date of this Agreement of any Law which is
applicable to the performance of the Work; it being expressly understood and
agreed by the parties hereto that a change in any income tax Law or any Law by
which a tax is levied or assessed on the basis of the Contractor's income,
profits, revenues or gross receipts shall not be a Change in Law.
"Change Order" has the meaning set forth in Section 1.7.4.
"Committee" has the meaning set forth in Section 15.1.
"Construction Change Directive" has the meaning set forth in Section 1.7.5.
"Construction Documents" has the meaning set forth in Section 1.5.2.
"Contractor's Architect" has the meaning set forth in Section 1.5.3.
"Contractor Default" has the meaning set forth in Section 12.1.
"Contractor's Fee" has the meaning set forth in Section 8.1.2.
"Contract Sum" has the meaning set forth in Section 8.1.
"Cost of the Work" has the meaning set forth in Section 8.4.
"Dispute" has the meaning set forth in Section 15.1.
"Excusable Event" has the meaning set forth in Section 2.5.3.
"Extreme Weather Day" shall mean and refer to a day during which extremely
harsh weather conditions exist considering the geographical location of the
Site.
"Finally Completed", "Finally Complete" and "Final Completion" has the
meaning set forth in Section 6.2.
"Force Majeure Event" has the meaning set forth in Section 2.5.3.2.
"Governmental Authority" shall mean and refer to any national, federal,
state, county, municipal or local government, agency, authority or court, or any
department, board, bureau or instrumentality thereof.
"Guaranteed Maximum Price" has the meaning set forth in Section 8.2.
"Hazardous Substance" shall mean and refer to any hazardous, toxic or
dangerous waste, substance or material defined as a "hazardous waste",
"hazardous material", "hazardous substance", "extremely hazardous waste" or
"restricted hazardous waste" in (i) any provision of Colorado law; (ii) the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
Sec. 6903 et seq.); (iii) the Clean Water Act (33 U.S.C. 1251 et seq.); (iv) any
------- -------
so-called "Superfund" or "Superlien" law; or (v) any other federal, state or
local statute, law, ordinance, code, rule or regulation.
"Holdback Amount" has the meaning set forth in Section 9.8.
"Indemnitees" has the meaning set forth in Section 10.1.
"Law" shall mean and refer to any constitution, charter, statute, act, law,
ordinance, regulation, code, rule, order, decree, judgment, directive, ruling,
decision, guideline, resolution or declaration of any Governmental Authority, or
any interpretation or application thereof by any such Governmental Authority.
"Modification" shall mean and refer to (i) a written amendment to this
Agreement signed by all parties hereto, or (ii) a Change Order.
"Notice to Proceed" has the meaning set forth in Section 2.2.2.
"Owner Default" has the meaning set forth in Section 12.2.
"Owner Furnished FF&E" has the meaning set forth in Section 8.2.2.
"Pre-Existing Hazardous Substance" shall mean and refer to a Hazardous
Substance existing at the Site as of the date of this Agreement.
"Project" shall mean and refer to the architectural contract administration
and construction of the Isle of Capri Black Hawk Hotel, as shown in the
Construction Documents.
"Project Concept Documents" shall mean and refer to those documents
identified or contained within Exhibit D to the Agreement, which documents
define generally the Project requirements and the concept design, scope and
intent for the Project.
"Punch List" has the meaning set forth in Section 6.1.
"Schedule" shall mean and refer to the construction schedule identified and
contained within Exhibit E to the Agreement.
"Schedule of Values" has the meaning set forth in Section 9.6.1.
"Site" shall mean and refer to the property and structures identified or
contained within Exhibit B to the Agreement.
"subcontractor" shall mean and refer to any person or entity (other than
the Contractor) who performs a portion of the Work, including, without
limitation, any architect, engineer, consultant, supplier, vendor or
materialman.
"Substantial Completion Date" shall mean August 9, 2000.
"Substantially Completed", "Substantially Complete" and "Substantial
Completion" has the meaning set forth in Section 2.3.1.
"Unforeseeable Conditions" shall mean and refer to conditions at the Site
which are concealed physical conditions of an unusual nature (i) which differ
materially from those indicated in this Agreement (and any reports or other
documents prepared by, on behalf of, or presented to the Contractor in relation
to the Project), and (ii) which differ materially from those ordinarily found to
exist and generally recognized as inherent in construction activities of the
character provided for in this Agreement.
"Work" has the meaning set forth in Section 1.1.
<PAGE>
EXHIBIT B
---------
Site
----
- - See legal description on following page
- - Site plan is contained within the Revised GMP Hotel Package No. 5,
prepared by Parkhill Ivins Architects, P.C., which package is part of the
Construction Documents.
<PAGE>
EXHIBIT C
---------
Contractor's Key Personnel
--------------------------
Vice President, Operations Ron Ondrak
On-Site Project Manager Joe Smith
Project Engineer Jeff Stroup
Superintendent Dan Nelson
<PAGE>
EXHIBIT D
---------
Contract Documents
------------------
The Project Contract Documents are comprised of the following:
1. Construction Documents prepared by Parkhill Ivins Architects, P.C.
The Revised GMP Hotel Package No. 5 Drawings, Volumes 1 and 2
dated February 8, 1999
The Revised GMP Hotel Package No. 5 Specifications, Volumes 1, 2
and 3 dated February 8, 1999
Addenda as follows:
Addendum No. 1 dated February 10, 1999
Addendum No. 2 dated February 22, 1999
Addendum No. 3 dated March 5, 1999
Addendum No. 4 dated March 9, 1999
Addendum No. 5 dated March 10, 1999
Addendum No. 6 dated March 12, 1999
Addendum No. 7 dated March 15, 1999
Addendum No. 8 dated March 17, 1999
Addendum No. 9 dated March 17, 1999
Addendum No. 10 dated March 18, 1999
Addendum No. 11 dated March 23, 1999
2. Construction Documents prepared by Norwood Oliver Design Associates
(NODA)
NODA Color and Material Specifications dated November 2, 1998
NODA Installation Notes dated November 2, 1998
For purposes of this Agreement, a "first-class" standard refers to a standard of
construction, furnishing and equipping which is substantially equivalent to the
standard of construction, furnishing and equipping found within the following
hotel facilities: Isle of Capri Biloxi, Isle of Capri Vicksburg and Isle of
Capri Bossier.
<PAGE>
Exclusions and Clarifications
-----------------------------
The GMP specifically excludes the following:
1. Alternate No. 1 - Pool and Enclosure.
2. Performance and payment bonds.
3. Repairs to existing structural system.
4. Modification, repairs, parts and maintenance to existing equipment.
5. All changes due to final Owner or building department review of
documents. If Contractor in the exercise of due care observes that any of the
contract documents are in variance with building code in any respect, Contractor
shall promptly notify the Owner of all conflicts between the drawings and
specifications and any laws or restrictions that come to the attention of
Contractor.
6. The usage cost for construction power, gas and water. Contractor
will tap and use the existing utility systems at no charge for usage.
7. Costs associated with Hotel construction shut downs by the Owner,
the Riviera casino project or the city of Black Hawk.
8. Inspection and testing fees by any independent quality control
agency.
9. The cost of any defects, deficiencies, inadequacies or
incompleteness in the current Hotel construction documents.
10. Consequential damages to the Owner due to this Project.
11. Any fees for NODA services.
12. Furnishing of any television sets, safes, or coffee makers.
13. Exercise equipment, ice machines, vending machines or installations
of these items.
14. The cost and time of delays due to the Year 2000 ("Y2K").
15. X-ray inspection of the existing precast that may be necessary to
facilitate the drilling for structural steel anchors.
16. Television, telephone and data cable is not included.
The following are General Clarifications:
1. The GMP Proposal is based upon all Design and Engineering firms
involved with the Project sharing in any liquidated damages to the extent that
they are at fault as per the Design Build Agreement.
2. The cost from Parkhill Ivins and consultants for contract
administration fees and the cost for as-built drawings is included.
3. The Design-Build Agreement will have precedence over the General
Requirements as stated in Addendum No. 3.
4. Contractor's limits of liability for Worker's compensation is per
State of Colorado law.
5. The Owner's Builder's Risk Insurance must extend to offsite temporary
storage for the FF&E and all materials in transit to the Project.
6. Waivers of subrogation shall include all insurance deductibles.
7. The EIFS exterior will be a standard PB system per manufacturer's
recommendations.
8. Card key controls equipment and associated software for the front
desk is to be furnished and installed by the Owner.
9. Refer to Exhibit G for scope description for the FF&E.
10. The rough-in conduit for telephone and data is included in the
rooms and stubbed out to the corridor ceiling.
11. The GMP Proposal is based upon obtaining permission from the
Riviera Casino project, the City of Black Hawk, the Isle of Capri to erect a
crane in Main Street to place and at a later date remove the two or three tower
cranes that will be mounted on the top of the parking structure. The Van Saten
entrance will be reduced to one lane during off-hours (nights and weekends). On
days when Contractor is working above this entry, the Van Saten access must be
closed for public safety.
12. Contractor must be allowed to swing crane booms over the Riviera
Casino project. Contractor will not swing loads over that project and Isle of
Capri project cranes will not conflict with Riviera Casino cranes.
13. If the Project is delayed due to design corrections, omissions or
errors, the contract schedule, Exhibit E, shall be extended the same amount of
the delay or lost time (a day for a day design correction or completion cause).
14. Contractor feels it will not need to work seven days a week,
twenty-four hours per day. However, Contractor reserves the right to increase
its work schedule to this if Contractor deems it necessary to achieve the
Project completion date.
15. Contractor will require the complete unrestricted use of the level
six parking deck.
Contractor will stock the project in the early morning hours from Main Street.
Contractor will utilize Owner's existing freight elevator as described
in the addendum.
The Van Saten entrance will be restricted at times due to maintaining public
safety while working above the garage entrance. All flagging requirements when
casino is open and Contractor is not working will be provided by the Owner.
The following are Furniture, Fixtures and Equipment (FF&E) Clarifications:
1. Quantities and materials pricing for all of the Accessories,
Furniture, Lighting, Beds, Frames, Mattresses, Draperies and Spreads are as
provided by Keating Corporation. Material pricing for all of the Carpeting and
Wall Covering are as provided by Keating Corporation with quantities to be per
the Construction Documents. Pricing provided by Keating for Carpeting is per
square yard and pricing for Wall Covering is per lineal yard. Widths of Wall
Covering included are in accordance with the NODA Book Issued in addendum 3.
Contractor has included the materials purchasing, warehouse storage (if
applicable), freight to the job site, and installation of each item above unless
otherwise noted.
2. All wall-hung items shall be shipped with mounting clips and/or
cleats attached.
3. All furniture items shall be shipped fully assembled and boxed so
that no job site assembly will be required.
4. Warranty on all items purchased from Owner supplied manufacturers
and suppliers must be the same as those required of the Contractor by the
contract documents.
5. All electrical lamps must be shipped with electrical cords attached
and with no cord shortening required.
6. The making of beds, stocking of hotel linens and additional cleanup
of rooms and bathrooms will be by the hotel maid staff. Contractor will leave
rooms free of all trash and will have performed a final cleaning during the
punch list.
7. All FF&E pricing provided for the drapes and bedspreads by Keating
is assumed to include the fabrication, drapery tracks, and installation of the
tracks and drapes.
8. Seaming of the carpeting for elevator lobbies is to be performed by
the carpet manufacturer, not by installer at the job site. Contractor assumes
material unit prices provided by Keating include this work.
9. Contractor assumes carpeting for rooms will be manufactured and
shipped in 13'-6" widths.
10. Waterproofing membrane under ceramic tile is included only beneath
Handicap Shower and Bathroom floors.
11. Contractor will provide MDF trim in lieu of specified lumber trim.
12. Contractor has included FRG surrounds, room dividers, etc.
13. NODA as Interior Designer will remain the Owner's consultant.
<PAGE>
EXHIBIT E
---------
Schedule
--------
The following schedule sets forth the Contractor's estimate of the time
necessary to complete the various components of the Work, and shall not be
---
construed or interpreted as altering, revising or otherwise changing the
Substantial Completion Date identified in Exhibit A to the Agreement.
<PAGE>
EXHIBIT F
---------
Owner's Permits and Licenses
----------------------------
- - Pay City of Black Hawk building permit fees.
- - Pay fees for City of Black Hawk's building code review consultant.
- - Pay fire impact fees.
- - Pay police impact fees.
- - Pay water system development fees.
- - Pay water tap fees.
- - Pay sewer tap fees.
<PAGE>
EXHIBIT G
---------
Equipment/Material Responsibility Matrix
----------------------------------------
The Contractor shall afford the Owner and its separate contractors
opportunity and access for storage and installation of the Owner Furnished FF&E,
and shall connect and coordinate its Work with the work of the Owner and its
separate contractors.
The matrix set forth on the following pages identifies the parties'
obligations as to the furnishing and installation of various furniture,
fixtures, and equipment.
Any amounts referenced in the following pages of this Exhibit are merely
cost estimates and shall not be construed or interpreted as allowances.
<PAGE>
EXHIBIT H
---------
Subcontractors
--------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ISLE OF
CAPRI BLACK HAWK, L.L.C.'S CONSOLIDATED FINANCIAL STATEMENTS AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS AND RELATED NOTES TO
SAID FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0001047905
<NAME> ISLE OF CAPRI BLACK HAWK, L.L.C.
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> APR-30-2000
<PERIOD-START> APR-26-1999
<PERIOD-END> OCT-24-1999
<CASH> 14933
<SECURITIES> 0
<RECEIVABLES> 368
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 15999
<PP&E> 84160
<DEPRECIATION> 1975
<TOTAL-ASSETS> 104617
<CURRENT-LIABILITIES> 18702
<BONDS> 75359
0
0
<COMMON> 0
<OTHER-SE> 10556
<TOTAL-LIABILITY-AND-EQUITY> 104617
<SALES> 0
<TOTAL-REVENUES> 42049
<CGS> 0
<TOTAL-COSTS> 15106
<OTHER-EXPENSES> 18833
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5559
<INCOME-PRETAX> 2769
<INCOME-TAX> 0
<INCOME-CONTINUING> 2769
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2769
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
