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EXHIBIT 10.44
CONTRACT FOR CONSTRUCTION BETWEEN OWNER
AND CONTRACTOR WHERE THE BASIS OF PAYMENT IS
THE COST OF THE WORK PLUS A FEE WITH
A GUARANTEED MAXIMUM PRICE (GMP)
THIS AGREEMENT HAS BEEN ADAPTED FROM AIA DOCUMENT All1,
1987 EDITION, WITH SIGNIFICANT ADDITIONS AND ALTERATIONS.
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES;
CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH
RESPECT TO ITS COMPLETION OR MODIFICATION
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AGREEMENT
made as of the sixth day of August in the year of Nineteen Hundred and Ninety
Six
BETWEEN the Owner: Xxxxxxxx Property Group, a Limited Partnership and
Horseshoe Gaming, Inc.
(Name and Address) 000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
and the Contractor: Xxxxxxx X. Xxxxx Construction Company
(Name and address) Xxxx Xxxxxx Xxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
the Project is: Horseshoe Casino Complex Additions & Renovations
(Name and address) Robinsonville, Mississippi
the Architect is: Xxxxxx & Xxxxxxx, Inc. Friedmutter and Associates
(Name and address) 0000 Xxxx Xxxxxx 00000 X. Xxxxxxx
Xxxxx 000 Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000 Xxx Xxxxx, Xxxxxx 00000
The Owner and Contractor agree as set forth below.
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THE CONTRACT DOCUMENTS.
1.1 The Contract Documents consist of this Agreement, Conditions of the
Contract (General, Supplementary and other Conditions), Drawings,
Specifications, Addenda issued prior to execution of this Agreement, other
documents listed in this Agreement and Modifications issued after execution of
this Agreement; these form the Contract, and are as fully a part of the Contract
as if attached to this Agreement or repeated herein. The Contract represents the
entire and integrated agreement between the parties hereto and supersedes prior
negotiations, representations or agreements, either written or oral. An
enumeration of the Contract Documents, other than Modifications, appears in
Article 16. If anything in the other Contract Documents is inconsistent with
this Agreement, this Agreement shall govern.
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THE WORK OF THIS CONTRACT.
2.1 The Contractor shall execute the following Items of Work as in the
Contract Documents, except to the extent specifically indicated in the Contract
Documents to be the responsibility of others:
Construction of Xxxxxx Horseshoe Casino Addition and Renovations, Hotel Tower,
Entertainment Complex, Parking Deck, Administration Building Addition, Site
Work, and Utility' Work. Preconstruction services to be provided by the
Contractor are included in the Contractor's Fee.
The specific scope for each Item of Work shall be further defined by plans and
specifications prepared by Architects/Engineers employed by Owner.
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RELATIONSHIP OF THE PARTIES.
3.1 The Contractor and the Owner accept the relationship of mutual trust and
confidence established by this Agreement and covenant with each other to
cooperate with the Architect and Engineers to utilize their best skill, efforts
and judgment in discharging their respective responsibilities and furthering the
interests of the Project. The Contractor covenants to furnish efficient business
administration and supervision; to make best efforts to furnish at all times an
adequate supply of workers and materials; and to perform the Work in the best
way and most expeditious and economical manner consistent with the interests of
the Owner. The Owner covenants to exercise best efforts to enable the Contractor
to perform the Work in the best way and most expeditious manner by furnishing
and approving in a timely way information required by the Contractor and by
making payments to the Contractor in accordance with requirements of the
Contract Documents.
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DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION.
4.1 Work has already commenced on the subject Project and the commencement
of Work has been authorized by the Owner. All Work shall be subject to this
Agreement.
4.2 As of the date of execution of this Agreement, final design information
has' not been furnished to the Contractor for the great majority of the Work.
The Contractor and the Owner shall mutually agree upon schedule of completion
when all Items of Work have been finally priced and the Contractor is able to
proceed with unrestricted performance of all Items of Work.
4.3 Any agreed completion dates assume that the Owner has secured or will
secure adequate financing for the entire Scope of Work with arrangements to
ensure that payments are made to Contractor in accordance with this Agreement.
Any delays caused by the failure of the Owner to deliver the required design
information or to secure adequate financing will entitle the Contractor to
commensurate time extensions to applicable milestone and final completion dates,
and to adjustments in the Contract Sum for any additional costs occasioned by
such delays.
4.4 In view of the incomplete nature of the design information and the
cooperative effort to be undertaken by the Owner and the Contractor to complete
the Project in an efficient manner with all reasonable dispatch, Owner and
Contractor agree that no liquidated damages are specified and no actual damages
for delay will be assessed.
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CONTRACT SUM.
5.1 The Owner shall pay the Contractor in current funds for the Contractor's
performance of the Contract the Contract Sum consisting of the Cost of the Work
as defined in Article 7 and a Contractor's Fee of three and one half percent
(3.5%) as determined in Paragraph 5.6.
5.2 The sum of the Cost of the Work and the Contractor's Fee is guaranteed
by the Contractor not to exceed Twelve million three hundred twenty five
thousand five hundred forty six dollars [$12,325,546.00) subject to - additions
and deductions as provided in the Contract Documents. Such maximum sum is
referred to in the Contract Documents as the Guaranteed Maximum Price or "GMP".
As of the date of execution of this Agreement, the Owner has furnished plans to
the Contractor for GMP pricing of only the Site Work and Utility' Relocation
Work. The remaining Items of Work identified in Paragraph 2.1 have not been
fully designed or Finally priced. Consequently, the GMP stated in this paragraph
is an
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initial provisional amount comprised mainly of Owner Allowances for unpriced
Work which shall subsequently be converted to a final GMP by change orders
pursuant to Paragraph 5.5.
5.3 The Guaranteed Maximum Price applies to the overall cost of the Project
as a whole and not to specific Items of Work, line items or schedule of values.
The Contractor may apply underruns in any Item of Work to overruns in any other
Item and may exceed the estimated cost for any line item without penalty so long
as the total Cost of the Work, plus Fee, on the entire Project does not exceed
the finally adjusted GMP for all the Work.
5.4 In the event the total Cost of the Work plus the Contractor's Fee is
less than the Guaranteed Maximum Price, as finally adjusted pursuant to the
Contract Documents, then seventy percent (70%) of the difference or savings
shall accrue to the Owner and the remaining thirty percent (30%) of the savings
shall be paid to the Contractor. The Contractor's share of such savings shall be
paid to the Contractor at the time of substantial completion of the Work.
Similar savings provisions will apply to any additions to the Scope of Work and
will be paid upon substantial completion of such Work scope additions.
5.5 The Owner acknowledges that in developing the initial, provisional
Guaranteed Maximum Price, the Contractor has used preliminary budget estimates
for Items of Work. These estimates are set forth in Exhibit "A" as Owner
Allowances. The Owner agrees there is insufficient design information to enable
the Contractor to make a reliable final estimate of costs for these allowances.
Consequently, the Contractor makes no representation, warranty, or guarantee as
to the accuracy or adequacy of the amounts for these Owner Allowances. Once
sufficient design information becomes available for any Item of Work, the
Contractor will propose a final price which, if accepted by the Owner, will be
converted by Change Order from an Owner Allowance to a priced component of the
GMP, with an appropriate increase or decrease in GMP for any differences between
the agreed upon final price for the Item of Work and the amount of the Owner's
Allowance for that Item of Work. Any work performed or cost incurred with
respect to any Item of Work before final pricing and conversion to a CMP shall
be on a cost-plus fee basis without GMP limitations.
5.6 The Contractor shall receive a basic Fee equal to three and on-half
percent (3.5%), which includes home office overhead and profit, on the Cost of
the Work incurred, paid, or to be paid by the Contractor pursuant to a proper
Application for Payment.
5.7 Although the Contract Sum is based upon the Cost of the Work plus 3.5%
Fee subject to a Guaranteed Maximum Price, as may be adjusted, the Owner agrees
to make progress payments to the Contractor on a percentage of completion
according to a Schedule of Values as provided in Article 12.
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CHANGES IN THE WORK.
6.1 The initial, provisional Guaranteed Maximum Price is based upon
incomplete Drawings and Specifications. Changes in the Work shall refer to any
Work performed by the Contractor which is not expressly shown or reasonably
inferable from the plans and specifications on which the Contractor relied to
submit final pricing to the Owner. Adjustments to the GMP on account of changes
in the Work or other remedy granting provisions of the Contract Documents shall
be determined as provided in the General Conditions.
6.2 In calculating adjustments to Subcontracts (except those awarded with
the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and
"fee" as used in Clause 7.3.3.3 of the General Conditions and the terms "costs"
and "a reasonable allowance for overhead and profit" as used in Subparagraph
7.3.6 of the General Conditions shall have the meanings assigned to them in the
General Conditions and shall not be modified by Articles 5, 7 and 8 of this
Agreement. Adjustments to Subcontracts awarded with the Owner's prior consent on
the basis of cost plus a fee shall be calculated in accordance with the terms of
those Subcontracts.
6.3 In calculating adjustments to this Contract, the terms "cost" and
"costs" as used in the above-referenced provisions of the General Conditions
shall mean the Cost of the Work as defined in Article 7 of this Agreement and
the terms "fee" and "a reasonable allowance for overhead and profit" shall mean
the Contractor's Fee as defined in Paragraph 5.6 of this Agreement.
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COSTS TO BE REIMBURSED.
7.1 The Owner shall pay the Contractor on the basis of Cost of the Work plus
a Fee subject to a GMP. The term Cost of the Work shall mean costs reasonably
incurred by the Contractor or properly billed to the Contractor in the
performance of Work or in furtherance of the Project, unless expressly excluded
by Article 8 of this Agreement.
7.1.1 LABOR COSTS
7.1.1.1 Wages of construction workers directly employed by the Contractor to
perform the construction of the Work at the site or, with the Owner's agreement,
at off-site workshops.
7.1.1.2 Wages, salaries, and expenses of the Contractor's supervisory and
administrative personnel when stationed at the site.
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7.1.1.3 Wages, salaries, and expenses of the Contractor's supervisory or
administrative personnel engaged at factories, workshops or on the road, in
expediting the production or transportation of materials or equipment required
for the Work, but only for that portion of their time required for the Work.
7.1.1.4 Wages and salaries of draftsmen and related costs incurred by the
Contractor to provide additional drawings, shop drawings, and layouts as may be
needed for construction.
7.1.1.5 Costs of project management and administrative personnel in the
Contractor's home office for the allocable portion of time devoted to the
Project.
7.1.1.6 Costs paid or incurred by the Contractor for taxes, insurance,
contributions, assessments and benefits required by law or collective bargaining
agreements and, for personnel not covered by such agreements, customary benefits
such as sick leave, medical and health benefits, holidays, vacations and
pensions, provided such costs based on wages and salaries included in the Cost
of the Work under Clauses 7.1.1.1 through 7.1.1.5.
7.1.1.7 Clerk-time in home office necessary to put monthly payment application
together each month will be charged to the project and is included in the
General Conditions. This will involve approximately three days each month for
one person.
7.1.2 SUBCONTRACT COSTS
Amounts properly billed by Subcontractors for Work approved by the Contractor
and the Owner and otherwise in accordance with the requirements of the
Subcontracts.
7.1.3 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION
7.1.3.1 Costs, including transportation, of materials and equipment incorporated
or to be incorporated in the completed construction.
7.1.3.2 Costs of materials described in the preceding Clause 7.1.3.1 in excess
of those actually installed but required to provide reasonable allowance for
waste and for spoilage.
7.1.4 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED
ITEMS
7.1.4.1 Costs, including transportation, installation, maintenance, dismantling
and removal of materials, supplies, temporary facilities, machinery, and
equipment. Such costs also include hand tools not customarily owned by the
construction workers, which are provided by the Contractor at the site.
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7.1.4.2 Rental charges for temporary facilities, machinery, equipment, and hand
tools not customarily owned by the construction workers, which are provided by
the Contractor at the site, whether rented from the Contractor or others, and
costs of transportation, installation, minor repairs and replacements,
dismantling and removal thereof.
7.1.4.3 Costs of removal of debris from the site.
7.1.4.4 Costs of telegrams and long-distance telephone calls, postage and parcel
delivery charges, telephone service at the site and reasonable xxxxx cash
expenses of the site office.
7.1.4.5 That portion of the reasonable travel and subsistence expenses of the
Contractor's personnel incurred while traveling in discharge of duties connected
with the Work. Contractor must receive prior written approval of subsistence,
pay prior to such subsistence being treated as a cost of the work.
7.1.5 MISCELLANEOUS COSTS
7.1.5.1 That portion directly attributable to this Contract of premiums for
insurance and bonds.
7.1.5.2 Sales, use or similar taxes imposed by a governmental authority which
are related to the Work and for which the Contractor is liable.
7.1.5.3 Fees and assessments for the building permit and for other permits,
licenses and inspections.
7.1.5.4 Fees of testing laboratories for tests required by the Contract
Documents, except those related to defective or nonconforming Work for which
reimbursement is excluded by Subparagraph 13.5.3 of the General Conditions or
other provisions of the Contract Documents and which do not fall within the
scope of Subparagraphs 7.2.2 through 7.2.6 below.
7.1.5.5 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of defending
suits or claims for infringement of patent rights arising from such requirement
by the Contract Documents; payments made in accordance with legal judgments
against the Contractor resulting from such suits or claims and payments of
settlements made with the Owner's consent; provided, however, that such costs of
legal defenses, judgment and settlements shall not be included in the
calculation of the Contractor's Fee or of the Guaranteed Maximum Price.
7.1.5.6 Deposits lost for causes other than the Contractor's sole fault or
negligence.
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7.1.5.7 All costs, losses, and expenses incurred by Contractor, not otherwise
expressly excluded by Article 8, for which no insurance was required of the
Contractor, or for which insurance was not reasonably obtainable, or for which
policy limits or exclusions make insurance coverage inapplicable or otherwise
unavailable to Contractor.
7.1.6 OTHER COSTS
7.1.6.1 Any cost not specifically and expressly excluded by Article 8 which the
Contractor reasonably incurs in the performance of the Work or in the
furtherance of the Project.
7.2 EMERGENCIES: REPAIRS TO DAMAGED, DEFECTIVE OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Paragraph 7.1 which
are incurred by the Contractor:
7.2.1 In taking action to prevent threatened damage, injury or loss in case of
an emergency affecting the safety of persons and property, as provided in
Paragraph 10.3 of the General Conditions.
7.2.2 In repairing or correcting Work damaged or improperly executed by
construction workers in the employ of the Contractor, provided such damage or
improper execution did not result from the fault or negligence of the Contractor
or the Contractor's foremen, engineers or superintendents, or other supervisory,
administrative or managerial personnel of the Contractor.
7.2.3 In repairing damaged Work other than that described in Subparagraph
7.2.2, provided such damage did not result from the fault or negligence of the
Contractor or the Contractor's personnel, and only to the extent that the cost
of such repairs is not recoverable by the Contractor from others and the
Contractor is not compensated therefor by insurance or otherwise.
7.2.4 In correcting defective or nonconforming Work performed or supplied by a
Subcontractor or material supplier and not corrected by them, provided such
defective or nonconforming Work did not result from the fault or neglect of the
Contractor or the Contractor's personnel adequately to supervise and direct the
Work of the Subcontractor or material supplier, and only to the extent that the
cost of correcting the defective or nonconforming Work is not recoverable by the
Contractor from the Subcontractor or material supplier.
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COSTS NOT TO BE REIMBURSED.
8.1 The Cost of the Work shall not include:
8.1.1 Salaries and other compensation of the Contractor's personnel stationed
at the Contractor's principal office or offices other than the site office,
except as specifically provided in Paragraph 7.1.1 or as may be provided in
Article 14.
8.1.2 Expenses of the Contractor's principal office and offices, except when
Owner approves specific costs (i.e. pre-construction, estimating, scheduling,
etc.).
8.1.3 Overhead and general expenses, except as may be expressly included in
Article 7.
8.1.4 The Contractor's capital expenses, including interest on the
Contractor's capital employed for the Work.
8.1.5 Except otherwise as provided in this Agreement, costs due to the fault
or negligence of the Contractor, Subcontractors, anyone directly or indirectly
employed by any of them, or for whose acts any of them may be liable, including
but not limited to costs for the correction of damaged, defective or
nonconforming Work, disposal and replacement of materials and equipment
incorrectly ordered or supplied, and making good damage to property not forming
part of the Work.
8.1.6 Costs which would cause the finally adjusted Guaranteed Maximum Price to
be exceeded.
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DISCOUNTS, REBATES AND REFUNDS.
9.1 Cash discounts obtained on payments made by the Contractor shall accrue
to the Owner if (1) before making the payment, the Contractor included them in
an Application for Payment and received payment therefor from the Owner, or (2)
the Owner has deposited funds with the Contractor with which to make payments;
otherwise, cash discounts shall accrue to the Contractor. Trade discounts,
rebates, refunds and amounts received from sales of surplus materials and
equipment shall accrue to the Owner, and the Contractor shall make provisions so
that they can be secured. The Contractor shall notify the Owner whenever the
Contractor actually becomes aware that any advance payment or deposit is
required in order to obtain any discounts, rebates or refunds and allow the
Owner the opportunity' to deposit such fund with the Contractor in order to
obtain such discounts, rebates or refunds.
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9.2 Amounts which accrue to the Owner in accordance with the provisions of
Paragraph 9.1 shall be credited to the Owner as a deduction from the Cost of the
Work.
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SUBCONTRACTS AND OTHER AGREEMENTS.
10.1 Those portions of the Work that the Contractor does not customarily
perform with the Contractor's own personnel shall be performed under
subcontracts, purchase orders, or by other appropriate agreements with the
Contractor. The Contractor shall obtain bids, when the Contractor judges it
reasonable to do so, for such portions of the Work from Subcontractors and from
suppliers of materials or equipment fabricated especially for the Work and shall
deliver such bids to the Owner and Construction Manager. Within three (3)
business days of delivery of the bids, the Owner & Construction Manager will
determine, with the advice of the Contractor and subject to the reasonable
objection of the Architect, which bids will be accepted and the Owner &
Construction Manager will notify the Contractor. The Owner may designate
specific persons or entities from whom the Contractor shall obtain bids; but the
Owner shall not prohibit the Contractor from obtaining bids from others. The
Contractor shall not be required to contract with anyone to whom the Contractor
has reasonable objection.
10.2 If a Guaranteed Maximum Price has been established and a specific bidder
among those whose bids are delivered by the Contractor to the Owner (1) is
recommended to the Owner by the Contractor; (2) is qualified to perform that
portion of the Work; and (3) has submitted a bid which conforms to the
requirements of the Contract Documents without reservations or exceptions, but
the Owner requires that another bid be accepted; then the Contractor may require
that a Change Order be issued to adjust the Guaranteed Maximum Price by the
difference between the bid of the person or entity recommended to the Owner by
the Contractor and the amount of the subcontract or other agreement actually
signed with the person or entity designated by the Owner.
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ACCOUNTING RECORDS.
11.1 The Contractor shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this
Contract; the accounting and control systems in place at the time of execution
of this Agreement are satisfactory to the Owner and shall remain in effect for
the duration of this Project. The Owner and the Owner's accountants shall be
afforded access to the Contractor's records, books, correspondence,
instructions, drawings, receipts, subcontracts, purchase orders, vouchers,
memoranda and other data relating to this Contract, and the Contractor shall
preserve these for a period of three years after final payment, or for such
longer period as may be required by law.
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PROGRESS PAYMENTS.
12.1 Based upon Applications for Payment submitted to the Architect by the
Contractor and Certificates for Payment issued by the Architect, the Owner shall
make progress payments on account of the Guaranteed Maximum Price to the
Contractor as provided below and elsewhere in the Contract Documents.
12.2 The period covered by each Application for Payment shall be one calendar
month ending on the last day of the month.
12.3 Provided an Application for Payment is received by the Architect not
later than the first day of the month,
12.4 Each Application of Payment shall be based Upon the Schedule of Values
submitted by the Contractor in accordance with the Contract Documents. The
Schedule of Values shall allocate the entire Guaranteed Maximum Price among the
various portions of the Work and shall be prepared in such form and supported by
such data to substantiate its accuracy as the Owner may reasonably require. This
Schedule shall be used as a basis for reviewing the Contractor's Applications
for Payment.
12.5 Applications for Payment shall indicate the percentage of completion of
each portion of the Work as of the end of the period covered by the Application
for Payment.
12.6 Subject to the provisions of the Contract Documents, the amount of each
progress payment shall be computed as follows:
12.6.1 Take that portion of the Guaranteed Maximum Price properly allocable to
completed Work as determined by multiplying the percentage completion of each
portion of the Work by the share of the total Guaranteed Maximum Price allocated
to that portion of the Work in the Schedule of Values, less retainage of ten
percent (10%) of the earned amount of Subcontracts but no retainage on amounts
due the Contractor for self-performed work, fee, and general conditions. Pending
final determination of cost to the Owner of changes in the Work, amounts not in
dispute may be included as provided in Subparagraph 7.3.7 of the General
Conditions even though the Guaranteed Maximum Price has not yet been adjusted by
Change Order.
12.6.2 Add that portion of the Guaranteed Maximum Price properly allocable to
materials and equipment delivered and suitable stored at the site for subsequent
incorporation in the completed construction (or, if approved in advance by the
Owner and Construction Manager, suitably stored off the site at a location
agreed upon in writing), without retainage.
12.6.3 Subtract the aggregate of previous payments made by the Owner: and
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12.6.4 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate of Payment as provided in Paragraph 9.5 of the General
Conditions.
12.7 The progress payment amount determined in accordance with Paragraph 12.6
shall be further modified under the following circumstances:
12.7.1 Add, upon Substantial Completion of the Work, a sum sufficient to
increase the total payments to one hundred percent (100%) of the Contract Sum,
less such amounts as the Architect shall determine for incomplete Work as
provided in Paragraph 13.2.
12.7.2 Add, if final completion of Work is thereafter materially delayed
through no fault of the Contractor, any additional amounts payable in accordance
with Subparagraph 9.10.3 of the General Conditions.
12.8 Reduction or limitation of retainage, if any, shall be as follows:
12.8.1 Fifty Percent Completion At fifty percent (50%) completion of the
Project, provided satisfactory progress is being made, the Owner may elect not
to hold any further retainage on earned amounts of Subcontracts for the
remaining fifty percent (50%) of the Work. However, even if the Owner elects not
to withhold further retainage on earned amounts of Subcontracts, the Contractor
has the discretion whether withhold further retainage on the remaining 50% of
respective Subcontractor's work.
12.8.2 Substantial Completion
At substantial completion of the Project, the Owner and the Contractor
will inspect the Project and develop a schedule of any incomplete or defective
items. They will mutually agree upon the value of said incomplete or defective
Work. Retainage shall then be determined at the lesser of: (1) actual retainage
being withheld or (2) one hundred fifty percent (150%) of the value of the Work
to he corrected or completed. As the Work is completed, the Owner will release
proportional amounts of retainage to the Contractor.
12.9 Although the Contractor shall invoice on a percentage of completion
basis according to an approved Schedule of Values and Major Subcontractor
Invoices for the current billing period, the Contractor shall also provide to
the Owner on a monthly basis cost summaries and compilations for the previous
billing period. The Owner shall review such cost summaries and compilations in a
timely manner and shall advise the Contractor within thirty (30) calendar days
after receipt of these cost summaries and compilations if there are any cost
categories which the Owner considers to be non-reimbursable under the Contract
or if there are any kinds of charges or any Work for which the Owner does not
intend to make payment. These issues will be resolved on a monthly basis between
the Contractor and Owner so as to prevent material prejudice to both parties
caused by continuing incurrence of costs which may be subject to dispute. Any
adjustments required for any previous payments of nor-reimbursable costs shall
he made on the following month's invoice.
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12.10 Except with the Owner's prior approval, the Contractor shall not make
advance payments to suppliers for materials or equipment which have not been
delivered and stored at the site.
12.11 In taking action on the Contractor's Application for Payment, the
Architect shall be entitled to rely on the accuracy and completeness of the
information furnished by the Contractor and shall not be deemed to represent
that the Architect has made exhaustive or continuous on-site inspections or that
the Architect has made examinations to ascertain how or for what purposes the
Contractor has used amounts previously paid on account of the Contract
12.12 Within seven (IS) days after receipt of the Contractor's Application for
Payment, the Owner shall issue a Certificate of Payment, with a copy to the
Contractor. If the Owner does not issue a Certificate for Payment within seven
(15) days after receipt of the Contractor's Application for Payment, the Owner
shall pay to the Contractor the amount invoiced on the Contractor's Application
for Payment.
12.12.1 If the Owner does not pay by the due date the full amount of the
Contractor's Application for Payment the Owner and the Contractor shall endeavor
in good faith to resolve their differences over the amount due for the
Application for Payment. If, after thirty (30) calendar days from the due date
of payment, the Owner and the Contractor are unable to reach agreement on the
amount properly due or the Owner has not paid an amount acceptable to the
Contractor for the Application for Payment, the Contractor may stop all Work
immediately and without further notice to the Owner. The Owner then has the
option of depositing all disputed amounts into an escrow fund, established on
terms mutually acceptable to the Contractor and the Owner (hereinafter referred
to as the "Escrow Fund"). Upon the Owner's timely deposit of disputed amounts
into the Escrow Fund, the Contractor shall continue or resume Work, subject to
the provisions of this Paragraph.
12.12.2 If the Owner's Certificate of Payment is for less than the full amount
originally invoiced by the Contractor, the Owner shall recite in the Certificate
of Payment the reasons for any amounts being disapproved, reduced, or otherwise
found not to be due. In such event, the Owner shall, within the time period set
forth in Subparagraph 12.3, pay to the Contractor the amount approved in the
Certificate of Payment and shall deposit into the Escrow Fund the amounts not
approved by the Owner. Either party may initiate arbitration under the Expedited
Procedures of the Construction Industry Arbitration Rules of the American
Arbitration Association, but the Contractor, unless otherwise specifically
provided in this Subparagraph 12.12, must continue Work.
12.12.3 Notwithstanding anything to the contrary herein, if the accumulated
amount in the Escrow Fund exceeds $ 100,000, the Contractor may, at Its
discretion, stop Work after initiation of arbitration under the Expedited
Procedures pending a decision of the arbitrator until such time as the Owner
pays to the Contractor an amount sufficient to bring the Escrow Fund to a
balance of $100,000 or less. The Owner may elect to make payments to the
Contractor of otherwise disputed amounts to maintain the Escrow Fund below the $
100,000
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ceiling and thus avoid a stoppage of Work. In such event, the Owner may reserve
its rights with respect to any such payment but only if such reservation is made
in writing and delivered to the Contractor at the time of payment. If the
arbitrator determines that further payments are owed to the Contractor, then the
Owner shall pay such additional amount within three (3) days after the date of
the arbitrator's decision.
12.12.4 In the event the Work is stopped in accordance with the foregoing, the
Contract Time shall be extended for each day the Work is stopped and the
Contract Sum shall be increased by the amount of the Contractor's reasonable
costs of shutdown, delay and start-up, which shall be accomplished as provided
in Article 7.
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FINAL PAYMENT.
13.1 Final payment shall be made by the Owner to the Contractor when (1) the
Contract has been substantially completed by the Contractor except for the
Contractor's responsibility' to correct defective or nonconforming Work, as
provided in Subparagraph 12.2.2 of the General Conditions, and to satisfy other
requirements, if any, which necessarily survive final payment; and (2) a final
Certificate for Payment has then been issued by the Architect. Such final
payment shall be made by the Owner not more than 20 days after the issuance of
the final Certificate for Payment but in no event shall the Owner's final
payment be made more than 50 days after the Contractor's Application for Final
Payment.
13.2 Notwithstanding the foregoing, the Owner may retain an amount equal to
one hundred fifty' percent (150%) of the values established by joint agreement
of the Owner and the Contractor for punch list items. Amounts withheld for each
punch list item shall be paid upon completion of the item. The Contractor shall
invoice for payment of completed punch list items as per the schedule provided
in Subparagraph 12.8.2, and the Owner shall pay such invoices within ten (10)
days of receipt.
14
MISCELLANEOUS PROVISIONS.
14.1 Where reference is made in this Agreement to a provision of the General
Conditions or another Contract Document, the reference refers to that provision
as amended or supplemented by other provisions of the Contract Documents.
14.2 Payments due and unpaid under the Contract shall hear interest from the
date payment is due at the rate stated below, or in the absence thereof, at the
legal rate prevailing from time to time at the place where the Project is
located.
14
15
14.3 Where reference is made in this Agreement to Architect, it shall mean
Owner and/or Construction Manager.
14.3.1 This Contract may not be assigned by either party hereto without the
express written consent of the other, except as follows:
14.3.2 In view of the fast-track nature of the Project and the Owner's desire
for the Contractor to price Items of Work before design documents have been
fully completed, the Contractor shall add a Contingency Amount of three and
on-half percent (3.5%) to the final pricing for each separate Item of Work when
converted from an Owner Allowance to a component of the GMP, pursuant to
Paragraph 5.5 of this Agreement. These Contingency Amounts are for the exclusive
use and benefit of the Contractor for performance of Work after GMP pricing has
been provided. Upon written notice, the Contractor may apply these Contingency
amounts to unexpected difficulties, estimating errors, unforeseen expenses, and
any other causes for cost overruns in the performance of Work included in the
Contractor's GMP pricing. Contingency Amounts may not be used for Changes in the
Work or other costs for which the Contractor is entitled to an adjustment in the
GMP pursuant to the Contract Documents.
14.3.3 Nothing in the Agreement or other Contract Documents is intended nor may
be construed to waive, abridge, or adversely affect the Contractor's right to
make the Contractor's actual receipt of payment from the Owner a condition
precedent to the Contractor's payment (whether progress, final, or any other
payment) to Subcontractors, suppliers, or other contractees. If the Contractor
or its contractees are required to submit affidavits of payment, waivers of
rights, releases of claims, or the like, such requirements will not be deemed
effective as to unpaid contract balances and retainage until payment for same is
actually received by the Contractor from the Owner.
15
TERMINATlON OR SUSPENSION.
15.1 If the Contract is terminated by the Contractor as provided in Article
14 of the General Conditions, the Owner shall pay the Contractor within thirty
(30) days of such termination all amounts set forth in Subparagraph 14.1.2 of
the General Conditions and all other additional costs generally recognizable in
Terminations for Convenience of federal government contracts, including such
costs as follow: reasonable costs of terminating and settling subcontracts and
purchase orders, including restocking charges as may be applicable; reasonable
costs of demobilizing for the site; costs of reassignment and relocation of
personnel; reasonable storage, transportation, and other costs incurred
reasonably necessary for the presentation, protection, or disposition of
equipment, materials, and inventory; costs reasonably necessary to prepare a
termination settlement proposal and supporting data; and an additional
termination fee which is fair and reasonable under the circumstances with due
regard to the Contractor's investment of resources, organization, and management
attention to
15
16
the subject Project in anticipation of performing the Project to completion. The
amount of termination fee shall he at the discretion of the Owner.
15.2 The Contract may be terminated by the Owner for cause as provided in
Article 14 of the General Conditions; however, the Owner shall then pay the
Contractor an amount calculated as follows:
15.2.1 Take the Cost of the Work incurred by the Contractor to the date of
termination or for which the Contractor has become obligated as of the date
notice of termination is received and add costs reasonably necessary for
demobilization, for disposition of equipment, materials, and other property, for
site clean-up and remediation, and otherwise directly related to the
termination.
15.2.2 Add the Contractor's Fee computed upon the Cost of the Work to the date
of termination at the rate stated in Paragraph 5.5.
15.2.3 Subtract the aggregate of previous payments made by the Owner.
15.2.4 The Owner shall also pay the Contractor fair compensation, either by
purchase or rental at the election of the Owner, for any equipment owned by the
Contractor which the Owner elects to retain and which is not otherwise included
in the Cost of the Work. To the extent that the Owner elects to take legal
assignment of subcontracts and purchase orders (including rental agreements),
the Contractor shall, as a condition of receiving the payments referred to in
this Article 15, execute and deliver all such papers and take all such steps,
including the legal assignment of such subcontracts and other contractual rights
of the Contractor, as the Owner may require for the purpose of fully vesting in
the Owner the rights and benefits of the Contractor under such subcontracts or
purchase orders.
15.3 The Work may he suspended by the Owner as provided in Article 14 of the
General Conditions; in such case, the GMP, if any, shall be increased as
provided in Subparagraph 14.3.2 of the General Conditions except that the term
"cost of performance of the Contract" in that Subparagraph shall be understood
to mean the Cost of the Work and the term "profit" shall be understood to mean
the Contractor's Fee as described in Paragraph 5.6 of this Agreement.
16
ENUMERATlON OF CONTRACT DOCUMENTS.
16.1 The Contract Documents, except for Modifications issued after execution
of this Agreement, are enumerated as follows:
16.1.1 The Agreement (sometimes referred to as "Contract") is this executed
Agreement between the Owner and Contractor.
16
17
16.1.2 The General Conditions are the General Conditions of the Contract for
Construction, AlA Document A201, 1987 Edition.
16.1.3 The Supplementary and other Conditions of the Contract are those
contained in the attachment hereto entitled Supplementary Conditions attached
hereto as Exhibit "8".
Document Title Pages
16.1.4 The Specifications are as follows:
(Either list the Specifications here or refer to an Exhibit attached to this
Agreement)
Section Title Pages
[Not available as of the date of this Agreement].
16.1.5 The Drawings are as follows, and are dated unless a different date is
shown below: (Either list the Drawings here or refer to an exhibit attached to
this Agreement.)
Number Title Date
The drawings available to the Contractor for GMP pricing of the Site
Work and the Utility' Relocation work are listed in Exhibit "C". No other
drawings have been made available to the Contractor for final pricing.
17
18
16.1.6 The Addenda, if any, are as follows:
Number Date Pages
[Not available as of the date of this Agreement].
16.1.7 Other Documents, if any, forming part of the Contract Documents are as
follows: (List hen any additional documents which are intended to form part of
the Contract Documents. The General Conditions provide that bidding requirements
such as advertisement or invitation to bid, Instructions to Bidders. sample
forms and the Contractors bid are not pan of the Contract Documents unless
enumerated in this Agreement. They should be list"d hen only if intended to he
part of the Contract Documents.)
This Agreement is entered into as of the day and year first written above and is
executed in at least three original copies of which one is to be delivered to
the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
OWNER CONTRACTOR
XXXXXXXX PROPERTY GROUP, XXXXXXX X. XXXXX CONSTRUCTION COMPANY
A LIMITED PARTNERSHIP and
HORSESHOE GAMING, INC.
------------------------------ ---------------------------------------
(Signature) (Signature)
General Partner Xxxxxxx X. Xxxxx, Chief Executive Officer
(Printed Name and Title) (Printed Name and Title)
18
19
BREAKDOWN OF INITIAL, PROVISIONAL GMP
Item of Work Price Owner
------------ Component Allowance
of GMP ---------
---------
Xxxxxx Horseshoe Casino Addition $ 1
and Renovations
Hotel Tower $ 1
Entertainment Complex (included in Hotel) $ --
Parking Deck $ 4,888,773*
Administration Building Addition $ 1
Fire Protection for Existing $ 90,910
Site Work $ 3,855,205
Utility Relocation Work $ 800,965
Contractor's General Conditions $ 2,689,690
----------- -------------
$12,325,543 $ 3
Subtotal of Priced Components of GMP $ 12,325,543
Subtotal of Owner Allowances $ 3
============
Initial Provisional Guaranteed Maximum
Price (Paragraph 5.2 of Agreement) $ 12,325,546
* INCOMPLETE PRICING
Exhibit "A"
00
00
XxXxXX XXXXXXXXX XXXXXX COMPLEX ADDITIONS AND RENOVATIONS
EXHIBIT "B"
SUPPLEMENTARY CONDITIONS
TO
CONTRACT BETWEEN
XXXXXXXX PROPERTY GROUP, a Limited Partnership, and
Horseshoe Gaming, Inc. and
XXXXXXX X. XXXXX CONSTRUCTION COMPANY
DATED August 6th, 1996
CHANGES TO GENERAL CONDITIONS
1.01 GENERAL
A. The following supplements modify, change, delete from or add to the
"General Conditions of the Contract for Construction," AIA Document
A201, Fourteenth Edition, 1987. Where an Article, Paragraph,
Subparagraph or Clause contained in the General Conditions is modified
or deleted by these Supplementary Conditions, the unaltered provisions
of that Article, Paragraph, Subparagraph or Clause shall remain in
effect.
1.02 ARTICLE 3 - CONTRACTOR
A. Paragraph 3.18 INDEMNIFICATION
1. Subparagraph 3.18.1: Delete all references in Subparagraph
3.18.1 to the Contractor's indemnification of the Architect, the
Architect's consultants, or anyone employed by the Architect.
The Contractor's indemnity extends only to the Owner.
1.03 ARTICLE 4 - ADMINISTRATION OF THE CONTRACT
A. Paragraph 4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT
1. Subparagraph 4.2.4: Subparagraph 4.2.4 is amended by deleting
the first sentence thereof and substituting in place thereof the
following sentence:
Exhibit "B"
21
Owner and Contractor are authorized to communicate directly
regarding administration of the Contract Documents and shall
endeavor to advise Architect of the resolution of all material
issues regarding the Contract Documents.
1.04 ARTICLE 9 - PAYMENTS AND COMPLETION
A. Paragraph 9.7 FAILURE OF PAYMENT
1. Subparagraph 9.7.1: Subparagraph 9.7.1 is amended by deleting
the first sentence and substituting the following:
If the Owner does not pay the Contractor in accordance with
Articles 12 and 13 of the Agreement, the Contractor may stop the
Work in accordance with procedures set forth in Paragraph 12.12
of the Agreement until payment of the amount owing has been
received.
B. Paragraph 9.10 FINAL COMPLETION AND FINAL PAYMENT
1. Subparagraph 9.10.2: In Subparagraph 9.10.2, modify the language
in item "(1)" in the third through seventh lines as follows:
(1) an affidavit that payrolls, bills for materials and
equipment, and other indebtedness connected with the Work for
which the Owner or Owner's property might be responsible or
encumbered (less amounts withheld by Owner) have been paid or
will be paid as follows: (i) with respect to previous
Applications for Payment for which the Contractor has been paid
in full, such indebtedness has been paid or otherwise satisfied
and (ii) with respect to the Application for Final Payment or
other Applications for Payment for which the Contractor has not
received full payment, such indebtedness will be paid only, as a
condition precedent, after the Contractor's actual receipt of
full payment from the Owner.
C. Add a new Paragraph 9.11 CONDITIONED PAYMENTS
1. Add a new Subparagraph 9.11.1 as follows:
9.11.1 Nothing in the Agreement or other Contract Documents is
intended nor may be construed to waive, abridge, or adversely
affect the Contractor's right to make the Contractor's actual
receipt of payment from the Owner a condition precedent to the
Contractor's payment (whether progress, final, or any other
payment) to Subcontractors, suppliers, or other contractees. If
the Contractor or its contractees are required to submit
affidavits of payment, waivers of rights, releases of claims, or
the like, such requirements will not he deemed effective as to
unpaid contract balances and retainage until payment for the
same is actually received by the Contractor from the Owner.
Exhibit "B"
22
1.05 ARTICLE 13 - MISCELLANEOUS PROVISIONS
A. Paragraph 13.3 WRITTEN NOTICE
1. Subparagraph 13.3.1: Delete Subparagraph 13.3.1 in its entirety
and substitute the following:
13.3.1 All notices, demands and other communications required or
permitted hereunder shall be made in writing and be deemed
communicated on the date when delivered in person or when
delivered, if mailed by certified mail, return receipt
requested, postage prepaid, or by courier delivery addressed as
follows:
Owner: Xxxxxxxx Property Group, a Limited Partnership
and Horseshoe Gaming, Inc.
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: ____________
Contractor: Xxxxxxx X. Xxxxx Construction Company
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Chairman
Architect: Xxxxxx & Xxxxxxx, Inc.
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attn: ______________
or to such other address as either Owner, Contractor or the
Architect may designate by notice to the other.
B. Paragraph 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
1. Subparagraph 13.7.1: Delete Subparagraph 13.7.1 in its
entirety.
1.06 ARTICLE 14 - TERMINATION OR SUSPENSION OF THE CONTRACT
A. Add a new Subparagraph 14.2.5 as follows:
14.2.5 Notwithstanding anything to the contrary herein, the
Owner shall give the Contractor written notice of grounds for
termination for cause and afford the Contractor a reasonable
opportunity to cure before exercising any rights or remedies
under Paragraph 14.
Exhibit "B"
23
OWNER: CONTRACTOR:
XXXXXXXX PROPERTY GROUP, XXXXXXX X. XXXXX CONSTRUCTION COMPANY a Limited
Partnership and
Horseshoe Gaming, Inc.
---------------------------- -----------------------------
BY: BY: Xxxxxxx X. Xxxxx
Director of Dev. Its: Chairman
Exhibit "B"
24
XXXXXX HORSESHOE CASINO COMPLEX ADDITIONS AND RENOVATIONS
EXHIBIT "C"
SUPPLEMENTARY CONDITIONS
TO
CONTRACT BETWEEN
XXXXXXXX PROPERTY GROUP, a Limited Partnership, and
Horseshoe Gaming, Inc. and
XXXXXXX X. XXXXX CONSTRUCTION COMPANY
DATED August 6th, 1996.
LIST OF DRAWINGS USED BY THE CONTRACTOR FOR GMP PRICING OF THE SITE WORK AND THE
UTILITY RELOCATION WORK:
Bid Package 1 - Utility relocation
C100 dated 25 April 1996
C101 dated 25 April 1996 6/05/96 Rev.2
C200 dated 25 April 1996
C201 dated 10 July 1996 8/06/96 Rev.5
C504 dated 25 April 1996
C505 dated 25 April 1996
C506 dated 05 June 1996
C507 dated 05 June 1996
ES101 dated 19 ApriI 1996
ES102 dated 19 Apri1 1996
Bid Package 2 - Sitework
C100 dated 25 April 1996
C101 dated 25 April 1996 6/05/96 Rev. 2
C102 dated 25 April 1996 8/06/96 Rev. 2
C103 dated 25 April 1996
C200 dated 25 April 1996
C201 dated 25 April 1996 8/06/96 Rev. 5
Exhibit "C"
25
C300 dated 25 April 1996
C301 dated 25 April 1996 8/06/96 Rev. 1
C302 dated 05 June 1996 Rev. 1
C303 dated 05 June 1996 8/06/96 Rev 2
C304 dated 04 June 1996 Rev. 1
C500 dated 23 July 1996 Rev. 2
C501 dated 30 June 1996 Rev. 2
C502 dated 10 July 1996 Rev 3
C503 dated 30 June 1996 Rev 3
C504 dated 25 April 1996
C505 dated 25 April 1996
C506 dated 05 June 1996 Rev. 1
C507 dated 05 June 1996 Rev. 1
C508 dated 25 April 1996
C509 dated 10 May 1996 8/06/96 Rev. 2
C510 dated 10 May 1996 8/06/96 Rev. 2
C511 dated 25 April 1996
C512 dated 05 June 1996 Rev. 1
C513 dated 10 May 1996 Rev.1
ES101 dated 25 April 1996
ES102 dated 25 April 1996
Specifications covering site Development for Horseshoe Casino and Hotel:
Addendum No. 1 5/14/96
Addendum No. 2 5/21/96
Owner: Contractor:
Xxxxxxxx Property Group, a Limited Xxxxxxx X. Xxxxx Construction Company
Partnership and Horseshoe
Gaming, Inc.
--------------------------------- --------------------------------------
BY: BY: Xxxxxxx X. Xxxxx
Director of Dev. Its: Chief Executive Officer
Exhibit "C"
26
-------------------------------------------------------------------------------------------------------------
CHANGE ORDER
-------------------------------------------------------------------------------------------------------------
PROJECT: Horseshoe Casino Complex Additions & Renovations DISTRIBUTION TO:
Robinsonville, Mississippi OWNER
CONTRACTOR
PROJECT MANAGER
OWNER: Xxxxxxxx Property Group, a Limited Partnership and
Horseshoe Gaming, Inc.
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
(000) 000 0000 Fax (000) 000-0000
CONTRACTOR: Xxxxxxx Xxxxx Construction Company Change Order Number: 1
115 Issaquena Date of this Change Order: 01/09/97
Xxxxxxxxxx, XX 00000 Date of Contract: 08/06/96
(000) 000-0000 Fax (000) 000-0000
The Contract between the Owner and Contractor is changed as follows:
-------------------------------------------------------------------------------------------------------------
The following approved Request For Changes (RFC's) were already included in the existing contract:
-------------------------------------------------------------------------------------------------------------
RFC's - #0, #0, #0, #0, #0, #0, #0, #8, #9, #00, #00, #00, #00, #00, #00 & #00 = $12,325,546.00.
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
The following previously approved RFC's are to be added to the contract by this Change Order:
-------------------------------------------------------------------------------------------------------------
RFC#22 Credit Rip Rap = ($48,945.00) RFC#23 Parking Lot Lights = $24,447.00
-------------------------------------------------------------------------------------------------------------
RFC#12 Temp. Generator = $2,690.00 RFC#19 Garage Piles = $777,410.00
-------------------------------------------------------------------------------------------------------------
RFC#20 Hotel Piles = $516,451.00 RFC#24 Credit Pile Wall = ($58,574.00)
-------------------------------------------------------------------------------------------------------------
RFC#27 Grease Trap = $1,066.00 TOTAL THIS CHANGE ORDER $1,214,545.00
-------------------------------------------------------------------------------------------------------------
This Change Order is not valid until signed by the Owner and Contractor or their assigns.
-------------------------------------------------------------------------------------------------------------
1. The original contract amount (Guaranteed Maximum Price) was: 1. $12,325,546.00
-----------------------------------
2. Net change by previously authorized Change Orders: 2. $0.00
-----------------------------------
3. The Guaranteed Maximum Price prior to this Change Order: 3. $12,325,546.00
-----------------------------------
4. The Guaranteed Maximum Price will be increased by this Change Order
in the amount of: 4. $1,214,545.00
-----------------------------------
5. The new Guaranteed Maximum Price including this Change Order will
be: 5. $13,540,091.00
-----------------------------------
6. The Contract Time will be increased by: 6. Zero
-----------------------------------
7. The date of Substantial Completion as of the date of this Change
Order is: 7. Be Determined
-----------------------------------
------------------------------------------------------------------------
PROJECT MANAGER OWNER CONTRACTOR
------------------------------------------------------------------------
The XXXXXX Group, Inc. Horseshoe Gaming, Inc. Xxxxxxx Xxxxx Const. Co. Inc.
00000 X.X. Xxxx. #000 0000 Xxxxxx Xxxxxx Xxxxx 000 Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
ARCHITECT
Friedmutter & Associates By:________________________________ By:________________________________
0000 Xxxxx Xxxxxxx, #000 Date:______________________________ Date:______________________________
Xxx Xxxxx, XX 00000
27
-------------------------------------------------------------------------------------------------------------
CHANGE ORDER
-------------------------------------------------------------------------------------------------------------
PROJECT: Horseshoe Casino Complex Additions & Renovations DISTRIBUTION TO:
Robinsonville, Mississippi OWNER
CONTRACTOR
PROJECT MANAGER
OWNER: Xxxxxxxx Property Group, a Limited Partnership and
Horseshoe Gaming, Inc.
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
(000) 000 0000 Fax (000) 000-0000
CONTRACTOR: Xxxxxxx Xxxxx Construction Company Change Order Number: 2
115 Issaquena Date of this Change Order: 01/09/97
Xxxxxxxxxx, XX 00000 Date of Contract: 08/06/96
(000) 000-0000 Fax (000) 000-0000
The Contract between the Owner and Contractor is changed as follows:
-------------------------------------------------------------------------------------------------------------
The following previously approved RFC's are to be added to the contract by this Change Order:
-------------------------------------------------------------------------------------------------------------
RFC#28 Casino Steel Barge = $1,665,356.00 RFC#33 Casino Mooring = $533,596.00
-------------------------------------------------------------------------------------------------------------
RFC#29 Utility Additions = $1,320.00 RFC#26 Hotel Piles = $469,048.00
-------------------------------------------------------------------------------------------------------------
RFC#30 Credit Utility Items = ($37,207.00) RFC#34 Road Maintenance = $28,185.00
-------------------------------------------------------------------------------------------------------------
RFC#15 Credit Duct Bank = ($78,468.00) RFC#35 Credit Sleeves = ($28,033.00)
-------------------------------------------------------------------------------------------------------------
RFC#25 Garage Piles = $1,217,725.00 RFC#36 Credit Sewer = ($3,188.00)
-------------------------------------------------------------------------------------------------------------
RFC#31 Credit Off Loading = ($2,653.00) RFC#38 Garage Metals = $120,049.00
-------------------------------------------------------------------------------------------------------------
RFC#32 Credit Sewer Main = ($10,055.00) TOTAL THIS CHANGE ORDER $3,375,675.00
-------------------------------------------------------------------------------------------------------------
This Change Order is not valid until signed by the Owner and Contractor or their assigns.
-------------------------------------------------------------------------------------------------------------
1. The original contract amount (Guaranteed Maximum Price) was: 1. $12,325,546.00
-----------------------------------
2. Net change by previously authorized Change Orders: 2. $1,214,545.00
-----------------------------------
3. The Guaranteed Maximum Price prior to this Change Order: 3. $13,540,091.00
-----------------------------------
4. The Guaranteed Maximum Price will be increased by this Change Order
in the amount of: 4. $3,375,675.00
-----------------------------------
5. The new Guaranteed Maximum Price including this Change Order will
be: 5. $16,915,766.00
-----------------------------------
6. The Contract Time will be increased by: 6. Zero
-----------------------------------
7. The date of Substantial Completion as of the date of this Change
Order is: 7. Be Determined
-----------------------------------
------------------------------------------------------------------------
PROJECT MANAGER OWNER CONTRACTOR
------------------------------------------------------------------------
The XXXXXX Group, Inc. Horseshoe Gaming, Inc. Xxxxxxx Xxxxx Const. Co. Inc.
00000 X.X. Xxxx. #000 0000 Xxxxxx Xxxxxx Xxxxx 000 Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
ARCHITECT
Friedmutter & Associates By:________________________________ By:________________________________
0000 Xxxxx Xxxxxxx, #000 Date:______________________________ Date:______________________________
Xxx Xxxxx, XX 00000
28
-------------------------------------------------------------------------------------------------------------
CHANGE ORDER
-------------------------------------------------------------------------------------------------------------
PROJECT: Horseshoe Casino Complex Additions & Renovations DISTRIBUTION TO:
Robinsonville, Mississippi OWNER
CONTRACTOR
PROJECT MANAGER
OWNER: Xxxxxxxx Property Group, a Limited Partnership and
Horseshoe Gaming, Inc.
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
(000) 000 0000 Fax (000) 000-0000
CONTRACTOR: Xxxxxxx Xxxxx Construction Company Change Order Number: 3
115 Issaquena Date of this Change Order: 01/09/97
Xxxxxxxxxx, XX 00000 Date of Contract: 08/06/96
(000) 000-0000 Fax (000) 000-0000
The Contract between the Owner and Contractor is changed as follows:
-------------------------------------------------------------------------------------------------------------
The following previously approved RFC's are to be added to the contract by this Change Order:
-------------------------------------------------------------------------------------------------------------
RFC#39 Hotel Misc. Metals = $606,749.00 RFC#45 Gar. Pile Increase = $69,867.00
-------------------------------------------------------------------------------------------------------------
RFC#40 Perf. Aug. Cst. Piles = $70,088.00 RFC#46 Hot. Pile Increase = $54,383.00
-------------------------------------------------------------------------------------------------------------
RFC#37 Hotel Structure = $4,607,151.00 RFC#47 Perf. Pile Fly Ash = ($1,420.00)
-------------------------------------------------------------------------------------------------------------
RFC#44 Erosion Control = $407,319.00 RFC#48 Gar. Found Chgs = $79,025.00
-------------------------------------------------------------------------------------------------------------
RFC#41 Striping West Lot = $570.17 RFC#49 Pk. Gar. Top Slab = $753,355.00
-------------------------------------------------------------------------------------------------------------
RFC#42 Beam@Basin Wall = $742.00 RFC#17 Temp. Lights = $4,563.00
-------------------------------------------------------------------------------------------------------------
RFC#43 Repair Adm. Sidewalk = $494.00 TOTAL THIS CHANGE ORDER $6,652,886.17
-------------------------------------------------------------------------------------------------------------
This Change Order is not valid until signed by the Owner and Contractor or their assigns.
-------------------------------------------------------------------------------------------------------------
1. The original contract amount (Guaranteed Maximum Price) was: 1. $12,325,546.00
-----------------------------------
2. Net change by previously authorized Change Orders: 2. $4,590,220.00
-----------------------------------
3. The Guaranteed Maximum Price prior to this Change Order: 3. $16,915,766.00
-----------------------------------
4. The Guaranteed Maximum Price will be increased by this Change Order
in the amount of: 4. $6,652,886.17
-----------------------------------
5. The new Guaranteed Maximum Price including this Change Order will
be: 5. $23,568,652.17
-----------------------------------
6. The Contract Time will be increased by: 6. Zero Days
-----------------------------------
7. The date of Substantial Completion as of the date of this Change
Order is: 7. 8/31/97
-----------------------------------
------------------------------------------------------------------------
PROJECT MANAGER OWNER CONTRACTOR
------------------------------------------------------------------------
The XXXXXX Group, Inc. Horseshoe Gaming, Inc. Xxxxxxx Xxxxx Const. Co. Inc.
00000 X.X. Xxxx. #000 0000 Xxxxxx Xxxxxx Xxxxx 000 Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
ARCHITECT
Friedmutter & Associates By:________________________________ By:________________________________
0000 Xxxxx Xxxxxxx, #000 Date:______________________________ Date:______________________________
Xxx Xxxxx, XX 00000
29
-------------------------------------------------------------------------------------------------------------
CHANGE ORDER
-------------------------------------------------------------------------------------------------------------
PROJECT: Horseshoe Casino Complex Additions & Renovations DISTRIBUTION TO:
Robinsonville, Mississippi OWNER
CONTRACTOR
PROJECT MANAGER
OWNER: Xxxxxxxx Property Group, a Limited Partnership and
Horseshoe Gaming, Inc.
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
(000) 000 0000 Fax (000) 000-0000
CONTRACTOR: Xxxxxxx Xxxxx Construction Company Change Order Number: 4
115 Issaquena Date of this Change Order: 01/09/97
Xxxxxxxxxx, XX 00000 Date of Contract: 08/06/96
(000) 000-0000 Fax (000) 000-0000
The Contract between the Owner and Contractor is changed as follows:
-------------------------------------------------------------------------------------------------------------
RFC#50 Casino Struct. Steel = $265,301.00 RFC#60 Hotel Steel Angles = ($138,615.00)
-------------------------------------------------------------------------------------------------------------
RFC#53 Elect. Start-Up Power = ($84,783.00) RFC#61 Hotel Struct. VE = $341,963.00
-------------------------------------------------------------------------------------------------------------
RFC#54 Increase Print. Allow = $22,446.00 RFC#62 GC's for Mech. = $883,730.00
-------------------------------------------------------------------------------------------------------------
RFC#55 Tax Casino Barge = ($62,857.00) RFC#63 GC's for Elect. = $568,919.00
-------------------------------------------------------------------------------------------------------------
RFC#56 Hotel Elevators = $918,079.00 RFC#64 Gar. Elev. Upgrades = $9,032.00
-------------------------------------------------------------------------------------------------------------
RFC#57 Topping Slab Bond = ($11,151.00) XXX#00 Xxxxx Xxxx Xxxxxxx = $21,882.00
-------------------------------------------------------------------------------------------------------------
RFC#58 CPM Scheduler = ($27,882.00) RFC#67 Casino Brg. Wtr. Dr. = $51,303.00
-------------------------------------------------------------------------------------------------------------
RFC#59 Misc. Directive Cost = $27,882.00 TOTAL THIS CHANGE ORDER $2,785,249.00
-------------------------------------------------------------------------------------------------------------
This Change Order is not valid until signed by the Owner and Contractor or their assigns.
-------------------------------------------------------------------------------------------------------------
1. The original contract amount (Guaranteed Maximum Price) was: 1. $12,325,546.00
-----------------------------------
2. Net change by previously authorized Change Orders: 2. $11,243,106.17
-----------------------------------
3. The Guaranteed Maximum Price prior to this Change Order: 3. $23,568,652.17
-----------------------------------
4. The Guaranteed Maximum Price will be increased by this Change Order
in the amount of: 4. $2,785,249.00
-----------------------------------
5. The new Guaranteed Maximum Price including this Change Order will
be: 5. $26,353,901.17
-----------------------------------
6. The Contract Time will be increased by: 6. Zero Days
-----------------------------------
7. The date of Substantial Completion as of the date of this Change
Order is: 7. 8/31/97
-----------------------------------
------------------------------------------------------------------------
PROJECT MANAGER OWNER CONTRACTOR
------------------------------------------------------------------------
The XXXXXX Group, Inc. Horseshoe Gaming, Inc. Xxxxxxx Xxxxx Const. Co. Inc.
00000 X.X. Xxxx. #000 0000 Xxxxxx Xxxxxx Xxxxx 000 Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
ARCHITECT
Friedmutter & Associates By:________________________________ By:________________________________
0000 Xxxxx Xxxxxxx, #000 Date:______________________________ Date:______________________________
Xxx Xxxxx, XX 00000
30
-------------------------------------------------------------------------------------------------------------
CHANGE ORDER
-------------------------------------------------------------------------------------------------------------
PROJECT: Horseshoe Casino Complex Additions & Renovations DISTRIBUTION TO:
Robinsonville, Mississippi OWNER
CONTRACTOR
PROJECT MANAGER
OWNER: Xxxxxxxx Property Group, a Limited Partnership and
Horseshoe Gaming, Inc.
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
(000) 000 0000 Fax (000) 000-0000
CONTRACTOR: Xxxxxxx Xxxxx Construction Company Change Order Number: 5
115 Issaquena Date of this Change Order: 04/21/97
Xxxxxxxxxx, XX 00000 Date of Contract: 08/06/96
(000) 000-0000 Fax (000) 000-0000
The Contract between the Owner and Contractor is changed as follows:
-------------------------------------------------------------------------------------------------------------
The following previously approved RFC's are to be added to the contract by this
Change Order:
-------------------------------------------------------------------------------------------------------------
RFC#68 Credit Garage FDC = ($4,575.00) RFC#73 Water Well = $14,316.00
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RFC#69 Central Plant Building = $40,652.00 RFC#76 Relocate Trans. = $12,941.00
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RFC#51 Garage Finishes = $2,140,537.00 RFC#78 Credit XXX #00 = ($49,354.00)
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RFC#70 Credit Casino Tax = ($1,949.00) RFC#79 Credit water Door = ($760.00)
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RFC#52 Admin. Building = $3,327,801.00 RFC#80 Credit Xxxx up = ($136,572.00)
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RFC#71 Credit Garage Sealer = ($265.00) RFC#81 Casino Steel = $15,546.00
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RFC#72 Hotel Ext. Glass = $2,777,466.00 TOTAL THIS CHANGE ORDER $8,135,784.00
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This Change Order is not valid until signed by the Owner and Contractor or their assigns.
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1. The original contract amount (Guaranteed Maximum Price) was: 1. $12,325,546.00
-----------------------------------
2. Net change by previously authorized Change Orders: 2. $14,028,355.17
-----------------------------------
3. The Guaranteed Maximum Price prior to this Change Order: 3. $26,353,901.17
-----------------------------------
4. The Guaranteed Maximum Price will be increased by this Change Order
in the amount of: 4. $8,135,784.00
-----------------------------------
5. The new Guaranteed Maximum Price including this Change Order will
be: 5. $34,489,685.17
-----------------------------------
6. The Contract Time will be increased by: 6. Zero Days
-----------------------------------
7. The date of Substantial Completion as of the date of this Change
Order is: 7. 11/1/97
-----------------------------------
------------------------------------------------------------------------
PROJECT MANAGER OWNER CONTRACTOR
------------------------------------------------------------------------
The XXXXXX Group, Inc. Horseshoe Gaming, Inc. Xxxxxxx Xxxxx Const. Co. Inc.
00000 X.X. Xxxx. #000 0000 Xxxxxx Xxxxxx Xxxxx 000 Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
ARCHITECT
Friedmutter & Associates By:________________________________ By:________________________________
0000 Xxxxx Xxxxxxx, #000 Date:______________________________ Date:______________________________
Xxx Xxxxx, XX 00000
31
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CHANGE ORDER
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PROJECT: Horseshoe Casino Complex Additions & Renovations DISTRIBUTION TO:
Robinsonville, Mississippi OWNER
CONTRACTOR
PROJECT MANAGER
OWNER: Xxxxxxxx Property Group, a Limited Partnership and
Horseshoe Gaming, Inc.
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
(000) 000 0000 Fax (000) 000-0000
CONTRACTOR: Xxxxxxx Xxxxx Construction Company Change Order Number: 6
115 Issaquena Date of this Change Order: 04/21/97
Xxxxxxxxxx, XX 00000 Date of Contract: 08/06/96
(000) 000-0000 Fax (000) 000-0000
The Contract between the Owner and Contractor is changed as follows:
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The following previously approved RFC's are to be added to the contract by this
Change Order:
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RFC#74 Casino Steel = $27,838.00 RFC#88 Hotel Electrical = $3,545,400.00
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RFC#82 Credit Access Road = ($14,833.00) RFC#89 Hotel Ext. Glass = $1,741,094.00
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RFC#83 Access Road Allow = $14,833.00 RFC#75 Hotel EIFS = $1,673,151.44
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RFC#84 Credit XXX #00 = ($3,327,801.00) RFC#90 Hotel Fire Prot = $563,891.00
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RFC#85 Admin. Foundation = $186,931.00 RFC#91 Hotel Wind Wash = $66,550.00
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RFC#86 Admin. Steel = $220,178.00 RFC#92 Casino Ext. Shell = $468,860.00
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RFC#87 Hotel Mechanical = $6,127,081.00 TOTAL THIS CHANGE ORDER $11,293,173.44
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This Change Order is not valid until signed by the Owner and Contractor or their assigns.
-------------------------------------------------------------------------------------------------------------
8. The original contract amount (Guaranteed Maximum Price) was: 1. $12,325,546.00
-----------------------------------
9. Net change by previously authorized Change Orders: 2. $22,164,139.17
-----------------------------------
10. The Guaranteed Maximum Price prior to this Change Order: 3. $34,489,685.17
-----------------------------------
11. The Guaranteed Maximum Price will be increased by this Change Order
in the amount of: 4. $11,293,173.44
-----------------------------------
12. The new Guaranteed Maximum Price including this Change Order will
be: 5. $45,782,858.61
-----------------------------------
13. The Contract Time will be increased by: 6. Zero Days
-----------------------------------
14. The date of Substantial Completion as of the date of this Change
Order is: 7. 11/1/97
-----------------------------------
------------------------------------------------------------------------
PROJECT MANAGER OWNER CONTRACTOR
------------------------------------------------------------------------
The XXXXXX Group, Inc. Horseshoe Gaming, Inc. Xxxxxxx Xxxxx Const. Co. Inc.
00000 X.X. Xxxx. #000 0000 Xxxxxx Xxxxxx Xxxxx 000 Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
ARCHITECT
Friedmutter & Associates By:________________________________ By:________________________________
0000 Xxxxx Xxxxxxx, #000 Date:______________________________ Date:______________________________
Xxx Xxxxx, XX 00000
