FIRST AMENDMENT TO AGREEMENT FOR GUARANTEED MAXIMUM PRICE CONSTRUCTION SERVICES
Exhibit 10.1
FIRST AMENDMENT TO AGREEMENT FOR GUARANTEED MAXIMUM
PRICE CONSTRUCTION SERVICES
PRICE CONSTRUCTION SERVICES
This First Amendment to the Agreement for Guaranteed Maximum Price Construction Services is dated
as of May 26, 2011, and is by and between PNK (Baton Rouge) Partnership (“Owner”) and Manhattan
Construction Company (“Contractor”).
WHEREAS, on March 30, 2010, Owner and Contractor entered into an Agreement for Guaranteed Maximum
Price Construction Services (the “Agreement”); and
WHEREAS, the parties now desire to amend the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged,
the parties agree to amend the Agreement as follows:
1. Section 15.1 Owner Controlled Insurance Program shall be deleted in its entirety and replaced
with the following:
15.1 Insurance Coverages
15.1.1. Contractor shall purchase and maintain, at its own expense, with insurers
acceptable to Owner, at least the following minimum coverages at all times during the term
of this Agreement, as provided herein, thereafter.
(a) Workers’ compensation insurance (statutory limits complying with the laws of
the State of Louisiana) and employer’s liability insurance with limits not less
than $1,000,000 bodily injury by accident (each accident), $1,000,000 bodily injury
by disease (policy limit), and $1,000,000 bodily injury by disease (each employee).
Such policies shall contain a waiver of subrogation in favor of Owner. Such
insurance shall be in strict accordance with the applicable workers’ compensation
laws in effect during performance by Contractor pursuant to this Agreement or
during performance by any supplier or sub-subcontractor.
(b) Commercial general liability insurance, written on an occurrence policy form
(“modified occurrence” and “claims-made” are not acceptable), including
premises-operations (including explosion, collapse and underground coverage) and
products-completed operations coverage, with limits of not less $1,000,000 bodily
injury and property damage per occurrence limit, $3,000,000
general aggregate limit (with a “per project” endorsement specifying the Project),
$1,000,000 personal injury and advertising limit, and $3,000,000 products-completed
operations aggregate limit, and with deductibles or self-insured retentions
acceptable to Owner. All commercial general liability policies shall provide,
without limitation, severability of interests (full separation of insureds),
contractual liability coverage (including coverage to the maximum extent
reasonably obtainable for the indemnification contained in this Agreement), broad
form property damage coverage (including completed operations) and a duty to defend
in addition to (without reducing) the limits of the policy(ies). Contractor shall
maintain continuous coverage for the commercial general liability insurance
required hereunder during the term of this Agreement and for at least two (2) years
beyond the completion or termination of the Contractor’s work hereunder, or
completion of the Project, whichever is later.
(c) Commercial automobile liability insurance, including, without limitation,
liability arising out of all owned, non-owned, leased, and hired automobiles,
trucks and trailers, or semi-trailers, including any machinery or apparatus
attached thereto, with limits not less than $1,000,000 each accident, or limits
carried, whichever is greater, with deductibles or self-insured retentions
acceptable to Owner. The commercial automobile liability insurance shall be written
on the most recent edition of ISO form CA 00 01 or equivalent acceptable to Owner
and shall include, without limitation, contractual liability coverage and insured
status for Owner. Contractor waives all rights against Owner for recovery of loss,
injury and/or damages to the extent such loss, injury and/or damages are covered by
the commercial automobile liability insurance maintained by Contractor.
(d) Professional Liability (Errors and Omissions) Insurance. Such insurance shall
include prior acts coverage and shall have limits sufficient to cover claims
arising out of all such work and/or services, with limits not less than $2,000,000
per claim and $5,000,000 annual aggregate, and with deductibles or self-insured
retentions acceptable to Owner. Such insurance shall include without limitation
contractual liability coverage to the maximum extent contained in this Agreement.
This insurance shall be maintained by Contractor continuously in effect during the
term of this Agreement and at least two (2) years beyond completion or termination
of the Services or completion of the Project, whichever is later.
With respect to the coverage required in subsection (d) above, If Contractor
maintains higher limits than those required by this addendum, then those higher
limits shall apply.
15.1.2. Contractor shall require insurance of subcontractors commiserate with the risk of
their work, but in no event less than the limits set forth on the attached Exhibit “A”.
15.1.3 Owner, and such other persons and entities as may from time to time be designated by
Owner in writing, shall be named as additional insureds under the general liability insurance
required above (including umbrella/excess policies) by both ISO Form CG 20 10 10 01 and CG 20 37 10
01 additional insured endorsement, or equivalent acceptable to Owner, and as additional insureds
under the commercial automobile liability insurance required above, by policy provision or
additional insured endorsement acceptable to Owner. These additional insured endorsements shall
contain a primary insurance clause stating: “It is further agreed that such insurance as is
afforded by this policy for the benefit of the additional insureds shall be primary insurance, and
any insurance maintained by the additional insureds shall be excess and non- contributory with the
insurance provided hereunder”. The coverage provided to the additional insureds must be at least as
broad as that provided to Contractor and may not contain any additional exclusionary language or
limitations applicable to the additional insureds. Contractor shall maintain such additional
insured status for the referenced parties on the general liability and umbrella/excess liability
policies continuously during the term of this Agreement and at least six (6) years beyond the
completion or termination of the Work hereunder or completion of the Project, whichever is later.
15.1.4. All workers’ compensation/employer’s liability and automobile liability policies
maintained by Contractor shall be endorsed to be primary coverage, and any coverage carried by
Owner shall be excess and non-contributory.
15.1.5 Contractor shall also maintain umbrella and/or excess liability coverage, written on
an occurrence policy form (“modified occurrence” and “claims made” forms are not acceptable), at
least as broad as the primary general liability insurance, with limits not less than $100,000,000
per occurrence/annual aggregate.
15.1.6. Prior to commencing the Services, Contractor shall deliver to Owner the
endorsements and waivers of subrogation referred to herein, as well as certificates of insurance
evidencing the coverages referred to herein. Promptly upon Owner’s request, Contractor shall
deliver to Owner a copy of any and all of the insurance policies and other insurance documents
required herein. In the case of policies expiring while any work
or services are in progress, a renewal certificate with all applicable endorsements must be
received at the business office of Owner prior to the expiration of the existing policy or
policies. Permitting Contractor to start any work or services, or continue any work or services,
or releasing any progress payment prior to compliance with these requirements shall not constitute
a waiver thereof. If at any time the Contractor’s insurance fails to meet the requirements stated
herein all payments may be held until the deficiency has been resolved. Each certificate and
endorsement must have an original signature by an authorized agent of the respective insurers.
Rubber stamped signatures will not be accepted. All certificates of insurance must provide Owner
with thirty (30) days advance written notice of cancellation, intent to non-renew, or adverse
material change in or reduction of coverage. The following wording from the cancellation provision
of all said certificates shall be lined through and initialled by an authorized agent of each
insurer:
“CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL 30 DAYS NOTICE TO THE CERTIFICATE
HOLDER NAMED TO THE LEFT.”
15.1.7. Owner reserves the right to require (1) higher limits and (2) additional
insurance coverages if Owner determines in its sole discretion that such higher limits
and/or additional coverages are reasonably necessary for the protection of Owner. Such
additional coverages shall be in form and with limits of liability, additional insured
endorsements, and deductibles or self-insured retentions acceptable to Owner. Contractor
and Subcontractor(s) shall be reimbursed for any additional costs associated with the
Owner’s request for higher limits and additional insurance coverages.
15.1.8. All insurance referred to herein to be maintained by Contractor or any
subcontractor shall be maintained by Contractor at its sole expense, with insurance carriers
qualified to do business in Louisiana and having a rating of not less than A:Vlll from A.M. Best &
Co., unless Owner, in writing, in its sole discretion, accepts a lower Best’s rating.
15.1.9. In the event Contractor fails to secure or maintain any policy of insurance
required hereby, Owner at its sole discretion and election, may (i) secure such policy of insurance
in the name of and for the account of Contractor and in such event, Contractor shall reimburse
Owner upon demand for the cost thereof; or (ii) terminate this Agreement, and Owner shall retain
all remedies hereunder for breach of this Agreement. Owner shall have the right to offset the costs
of any such insurance, including but
not limited to premiums, against any sums payable to Contractor under this Agreement.
15.1.10. None of the requirements contained herein as to types, limits and approval of
insurance coverage to be maintained by Contractor (or any subcontractor) are intended to, and shall
not in any manner, limit or qualify the liabilities and obligations assumed by Contractor under
this Agreement or at law, including, without limitation, Contractor’s indemnification obligations
and liability in excess of the limits of the coverages required herein. Neither receipt of
certificates showing less or different coverage than requested, nor any other forbearance or
omission by Owner shall be deemed a waiver of, or estoppel to assert, any right or obligation
regarding the insurance requirements herein. Contractor shall be solely responsible to pay any loss
amount that lies within the deductible(s) or self-insured retention(s) of Contractor’s policies, up
to the maximum amount of the deductible(s) or self-insured retention(s).
15.1.11. None of the requirements contained herein shall relieve Contractor, and its
subcontractors of any tier, of their respective obligations to exercise due care in the performance
of their duties in connection with the work or to complete the work in strict compliance with this
Agreement.
15.1.12. Consistent with the provisions of Paragraph 15.1.14 below, Owner and Contractor
shall cause their insurance carriers to waive subrogation against the other party. Contractor shall
require the same waivers from all subcontractors, consultants and suppliers, and from the insurers
issuing property insurance policies relating to the work or the Project. The waivers of
subrogation referred to in this Section shall be effective as to any individual or entity even if
such individual or entity (a) would otherwise have a duty of indemnification, contractual or
otherwise, (b) did not pay the insurance premium, directly or indirectly, and (c) whether or not
such individual or entity has an insurable interest in the property which is the subject of the
loss or damage. In the event a party’s obligation to name the other as an additional insured is
determined to unenforceable and such determination prevents said party from fulfilling the
obligations set forth in this paragraph, the party’s failure to fulfil such obligation shall not be
deemed a violation of this Agreement.
15.1.13 Owner shall obtain Builder’s Risk insurance, written on an “all risk” basis, providing
coverage at one hundred percent replacement cost for all materials and equipment permanently
incorporated into the buildings and structures forming a part of the Work and all materials and
equipment on or about the Project site intended for permanent incorporation into said buildings and
structures. The Builder’s Risk
insurance shall provide coverage for Owner, Contractor, and all Subcontractors of any tier
performing a portion of the Work on the Project. Such coverage shall exclude machinery, tools and
equipment owned or procured by the Contractor and its Subcontractors in the performance of the
Work. For each covered loss caused by Contractor (or its Subcontractors), Contractor shall pay the
first Twenty Five Thousand Dollars ($25,000.00) of each such loss.
15.1.14 Notwithstanding anything to the contrary herein, to the extent any of the additional
insured requirements contained herein are construed to violate any Louisiana legislation, the
additional insured requirements and specified endorsements shall be modified or otherwise
interpreted, to the extent possible, to provide for the broadest permissible coverage, but in no
event shall they be modified or interpreted to be broader than the coverage provided by the
required endorsements. Contractor shall not be deemed to have violated the insurance requirements
if it provides the required additional insured endorsements and the coverage provided by those
endorsements is later determined to be partially or totally violative of Louisiana law. Any similar
requirements for additional insured protection from subcontractors shall likewise be limited to the
same extent.
2. All other terms and conditions of the Agreement not amended herein shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to the Agreement for
Guaranteed Maximum Price Construction Services to be executed as of the date first set forth above.
| PNK (BATON ROUGE) PARTNERSHIP | MANHATTAN CONSTRUCTION COMPANY | |||||
By:
|
PNK DEVELOPMENT 8, LLC | By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||||
Its:
|
Managing Partner | |||||
| By: | PINNACLE ENTERTAINMENT, INC. | Its: | Executive Vice President | |||||
| Its: | Sole Member |
| By: | /s/ Xxxxxxx Xxxxxxxxxx
|
|||||
| Its: | President and Chief Executive Officer |
