THE AMERICAN INSTITUTE OF ARCHITECTS
AIA Document A101
Standard Form of Agreement Between
Owner and Contractor
where the basis of payment is a
STIPULATED SUM
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH
AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR
MODIFICATION.
The 1987 Edition of AIA Document A201, (General Conditions of the
Contract for Construction, is adopted in this document by
reference. Do not use with other general conditions unless this
document is modified.
This document has been approved and endorsed by The Association
of General Contractors of America.
AGREEMENT
made as of the twenty-fifth day of October in the year of
Nineteen Hundred and Ninety-five
BETWEEN the Owner: (Name and address)
Gem Gaming, Inc.
0000 X. Xxxxxx Xxxx #000
Xxx Xxxxx, Xxxxxx 00000
(000) 000-0000, (000) 000-0000 - Fax
and the Contractor: (Name and address)
Camco Pacific Construction Company, Inc.
00000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000, (000) 000-0000 - Fax
The Project is: (Name and location)
The Reserve, (Hotel only)
Lake Xxxx Drive @ U.S. Hwy. 95 (000 Xxxx Xxxx Xxxx Xxxxx)
Xxxxxxxxx, Xxxxxx
The Architect is: (Name and address)
Xxxxxxxx Architects
00000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000, (000) 000-0000 - Fax
The Owner and Contractor agree as set forth below.
ARTICLE I
THE CONTRACT DOCUMENTS
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
9.
ARTICLE 2
THE WORK OF THIS CONTRACT
The Contractor shall execute the entire Work described in the
Contract Documents, except to the extent specifically indicated
in the Contract Documents to be the responsibility of others, or
as follows:
ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement is the date from which the Contract
Time of Paragraph 3.2 is measured, and shall be the date of this
Agreement, as first written above, unless a different date is
stated below or provision is made for the date to be fixed in a
notice to proceed issued by the Owner. The date of commencement
shall be fixed in a Notice to Proceed provided by Gem Gaming,
Inc. or it's authorized agent to Camco Pacific Construction
Company, Inc. The Notice to Proceed will also act as
verification that all funds are in place to complete the project.
A Letter of Committment from the Lender will be required to the
satisfaction of Contractor and Bonding Company. (Insert the date
of commencement, if it differs from the date of this Agreement
or, if applicable, state that the date will be fixed in a notice
to proceed.)
Unless the date of commencement is established by a notice to
proceed issued by the Owner, the Contractor shall notify the
Owner in writing not less than five days before commencing the
Work to permit the timely filing of mortgages, mechanic's liens
and other security interests.
3.2 The Contractor shall achieve Substantial Completion of the
entire Work not later than (Insert the calendar date or number of
calendar days after the date of commencement. Also insert any
requirements for earlier Substantial Completion of certain
portions of the Work, if not stated elsewhere in the Contract
Documents.)
Two Hundred Sixty Two (262) calendar days from November 1, 1995
or issuance of footing and foundation permit, whichever is later.
If full buidling permit not issued by December 15, 1995, the
timing shall be extended for the number of days the permit is
delayed.
, subject to adjustments of this Contract Time as provided in the
Contract Documents. (Insert provisions, if any, for liquidated
damages relating to failure to complete on time.)
ARTICLE 4
CONTRACT SUM
4.1 The Owner shall pay the Contractor in current funds for the
Contractor's performance of the Contract the Contract Sum of Six
Million Seventy One Thousand Seventy Five Dollars ($6,071,075),
subject to additions and deductions as provided in the Contract
Documents
4.2 The Contract Sum is based upon the following alternates, if
any, which are described in the Contract Documents and are hereby
accepted by the Owner: (State the numbers or other identification
of accepted alternates. If decisions on other alternates are to
be made by the Owner subsequent to the execution of this
Agreement, attach a schedule of such other alternates showing the
amount for each and the date until which that amount is valid.)
4.3 Unit prices, if any, are as follows:
ARTICLE 5
PROGRESS PAYMENTS
5.1 Based upon Applications for Payment submitted to the
Architect by the Contractor and Certificates for Payment issued
by the Architect, the Owner shall make progress payments on
account of the Contract Sum to the Contractor as provided below
and elsewhere in the Contract Documents.
5.2 The period covered by each Application for Payment shall be
one calendar month ending on the last day or the month, or as
follows;
5.3 provided an Application for Payment is received by the
Architect not later than the fifth day of a month, the Owner
shall make payment to the Contractor not later than the twentieth
(20th) day of the same month. If an Application for Payment is
received by the Architect after the application date fixed above,
payment shall be made by the Owner not later than ten days after
the Architect receives the Application for Payment.
5.4 Each Application for 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 Contract Sum among the various portions of the Work and be
prepared in such form and supported by such data to substantiate
its accuracy as the Architect may require. This schedule, unless
objected to by the Architect, shall be used as a basis for
reviewing the Contractor's Applications for Payment.
5.5 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.
5.6 Subject to the provisions of the Contract Documents, the
amount of each progress payment shall be computed as follows:
5.6.1. Take that portion of the Contract Sum properly allocable
to completed Work as determined by multiplying the percentage
completion of each portion of the Work by the share of the total
Contract Sum allocated to that portion of the Work in the
schedule of values, less retainage of ten percent (10%). Pending
final determination of cost to the Owner of changes in the Work,
amounts not in the dispute may be included as provided in
Subparagraph 7.3.7 of the General Conditions even though the
Contract Sum has not yet been adjusted by Change Order;
5.6.2 Add that portion of the Contract Sum properly allocable to
materials and equipment delivered and suitably stored at the site
for subsequent incorporation in the completed construction (or,
if approved in advance by the Owner, suitably stored off the site
at a location agreed upon in writing), less retainage of zero
percent (0%);
5.6.3 Subtract the aggregate of previous payments made by the
Owner; and
5.6.4 Subtract amounts, if any, for which the Architect has
withheld or nullified a Certificate for Payment as provided in
Paragraph 9.5 of the General Conditions.
5.7 The progress payment amount determined in accordance with
Paragraph 5.6 shall be further modified under the following
circumstances:
5.7.1 Add, upon Substantial Completion of the Work, a sum
sufficient to increase the total payments to Ninety Five percent
(95%) of the Contract Sum, less such amounts as the Architect
shall determine for incomplete Work and unsettled claims; and
5.7.2 Add, if final completion of the 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.
5.8 Reduction or limitation of retainage, if any, shall be as
follows: (If it is intended, prior to Substantial Completion of
the entire Work, to reduce or limit the retainage resulting from
the percentages inserted in Subparagraphs 5.6.1 and 5.6.2 above,
and this is not explained elsewhere in the Contract Documents,
insert here provisions for such reduction or limitation.)
10% Retention shall be withheld for the first 50% of the Contract
amount. At such time no additional retention withheld.
ARTICLE 6
FINAL PAYMENT
Final payment, constituting the entire unpaid balance of the
Contract Sum, shall be made by the Owner to the Contractor when
(1) the Contract has been fully performed by the Contractor
except for the Contractor's responsibility to correct
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 been issued by the Architect; such
final payment shall be made by the Owner not more than 30 days
after the issuance of the Architect's final Certificate for
Payment, or as follows:
A. In no event shall final payment be made to Contractor unless
all certificates of occupancy have been issued for the project.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 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.
7.2 Payments due and unpaid under the Contract shall bear
interest from the date payment is due at the rate stated below,
or in the absence thereof, at the legal rate prevailing from time
to time at the place where the Project is located. (Insert rate
of interest agreed upon, if any.)
10% per annum (.83/month)
7.2B The terms of this Agreement are subject to the review and
approval of Bank of America Nevada (BAN) and BA Construction
Services and the Contractor's Bonding company. The parties agree
to work with BAN and Bonding company to make changes to the
contract as may be required by BAN and Bonding Compay, if
possible and agreeable to the parties.
(Usury laws and requirements under the Federal Truth in Lending
Act, similar state and local consumer credit laws and other
regulations at the Owner's and Contractor's principal places of
business, the location of the Project and elsewhere may affect
the validity of this provision. Legal advice should be obtained
with respect to deletions or modifications, and also regarding
requirements such as written disclosures or waivers.)
7.3 Other provisions:
Retention to be released in its entirety thirty (30) days after
installation of work for the follwing items: Structural Steel,
Joists, Steel Trusses, Masonry & Concrete and metal decking. In
no evenht shall retention be released unless all certificates of
occupancy have been issued for the project.
7.4 See first Addendum for additional/clarifying terms and
conditions.
ARTICLE 8
TERMINATION OR SUSPENSION
8.1 The Contract may be terminated by the Owner or the Contractor
as provided in Article 14 of the General Conditions.
8.2.1 The Work may be suspended by the Owner as provided in
Article 14 of the General Conditions.
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9.1 The Contract Documents, except for Modifications issued after
execution of this Agreement, are enumerated as follows:
9.1.1 The Agreement is this executed Standard Form of Agreement
Between Owner and Contractor, AIA Document A1Ol, 1987 Edition.
9.1.2 The General Conditions are the General Conditions of the
Contract for Construction, AIA Document A201, 1987 Edition.
9.1.3 The Supplementary and other Conditions of the Contract are
those contained in the Project Manual dated _________________,
and are as follows:
Document Title
Pages
No Project Manual Included
9.1.4 The Specifications are those contained in the Project
Manual dated as in subparagraph 9.1.3, and are as follows:
(Either list the Specifications here or refer to an Exhibit
attached to this Agreement.)
Section Title
Pages
No Project Specifications Included
9.1.5 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
See Attached "List of Drawings"
9.1.6 The addenda, if any are as follows:
Number Date
Pages
First Addendum to Contractor's Agreement attached hereto and
incorporated herein by this reference.
Portions of addenda relating to bidding requirements are not part
of the Contract Documents unless the bidding requirements are
also enumerated in this Article 9.
9.1.7 Other documents, if any, forming part of the Contract
Documents are as follows: (List here 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 Contractor's bid are not part of the
Contract Documents unless enumerated in this Agreement. They
should be listed here only if intended to be 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
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxx X.
Xxxxxxxx
(Signature) (Signature)
Xxxxxxx X. Xxxxxxxx, President Xxxxxx X.
Xxxxxxxx
Gem Gaming, Inc. President
(Printed name and title) (Printed name and
title)
CAUTION: You should sign an original AIA document which has this
caution printed in red. An original assures that changes will not
be obscured as may occur when documents are reproduced.
THE RESERVE HOTEL & CASINO
LIST OF DRAWINGS
NUMBER TITLE DATE
2 Horizontal Control Plan 6/12/95
A2.1 First Floor Plan - Casino 8/22/95
A2.2 Second Floor Plan - Casino 8/22/95
A2.3 Partial First Floor Plan - Casino 8/22/95
A2.4 Partial First Floor Plan - Casino 8/22/95
A2.5 Partial First Floor Plan - Casino 8/22/95
A2.6 Partial First Floor Plan - Casino 8/22/95
A2.7 Partial Second Floor Plan - Casino 8/22/95
A2.8 Partial Second Floor Plan - Casino 8/22/95
A2.9 Partial Second Floor Plan - Casino 8/22/95
A2.16 Exterior Elevations - Casino 8/22/95
A2.17 Exterior Elevations - Casino 8/22/95
A2.18 Casino/Tower - Roof Plan 8/22/95
A2.19 Building Sections - Casino 8/22/95
A3.1 Tower - First/Typical Plans 8/22/95
A3.2 Tower - Tenth Floor Plan 8/22/95
A3.3 Tower - Enlarged Plans 8/22/95
A3.6 Tower - East Elevation 8/22/95
A3.7 Tower - West Elevation 8/22/95
A3.8 Tower - North/South Elevations 8/22/95
A3.9 Tower - Section 8/22/95
A3.10 Tower - Stair Sections 8/22/95
A3.12 Tower - Enlarged Plans 8/22/95
S.1 Typical Details 2/27/95
S.2 General Notes 7/10/95
S.3.1 Casino Foundation Plan 7/31/95
S.3.2 Casino Upper Level Framing Plan 7/31/95
S.3.3 Casino Roof Framing Plan 7/31/95
S.4.1 Tower (Phase I) Foundation Plan 7/18/95
S.4.2 Tower (Phase I) 2nd-10th Floor & Roof
Framing Plan 7/10/95
S.5 Casino Sections 7/31/95
S.7.1 Casino Grade BM and Brace Frame Elevations 7/31/95
S.7.2 Casino Grade BM and Brace Frame Elevations 7/31/95
S.9.1 Tower Shear Wall Elevations 7/31/95
S.9.2 Tower Shear Wall Elevations 7/31/95
S.10.1 Casino Details 7/31/95
S.10.2 Casino Details 7/31/95
S.11.1 Tower Details 7/17/95
FIRST ADDENDUM TO CONTRACTOR'S AGREEMENT
(HOTEL TOWER)
This First Addendum ("First Addendum") to the General
Contractor Agreement is made this 25th day of October, 1995 by
and between Gem Gaming, Inc., a Nevada corporation ("Owner") and
Camco Pacific Construction Company, Inc., a California
corporation ("Contractor").
R E C I T A L S
A. Owner and Contractor entered into an agreement
dated _________________, 1995 (the "Agreement") whereby
Contractor agreed to perform various general contractor services
for Owner in Owner's development of a hotel/casino and related
improvements in Henderson, Nevada (the "Project").
B. The parties desire to provide for additional
provisions to the Agreement as set forth in this First Addendum.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. All capitalized terms used herein
and not otherwise defined shall be accorded the meanings set
forth in the Agreement.
2. Construction Budget. Contractor warrants and
agrees that the budget for the construction of the Project shall
not exceed the following:
(a) Contractor shall construct the Hotel Tower
consisting of 224 rooms at a cost not to exceed the amount
of $23,000 per turn-key room (each room to be the size of
12' x 27' (+/-)). In addition, Contractor shall construct
miscellaneous offices and facilities ("Back of House") on
the ground floor of the Hotel Tower for a cost not to exceed
the amount of $919,075. The total cost is $6,071,075.
(b) Owner and Contractor shall work diligently to
bring this Project in "on budget" as shown above. It is
expressly understood that such project requires the
cooperation of all parties to assure that the Project does
not go over budget.
3. Proof of Financing. Owner shall provide to
Contractor and Bonding Company an acceptable "Proof of Financing"
document that guarantees sufficient funds are available to meet
the obligations of the Contract, including potential Change
Orders.
4. Late Penalty. Owner and Contractor acknowledge
and agree that if the Project is not substantially complete and
ready for the purpose intended in accordance with Article 3 of
the Construction Contract that damages to Owner would be
difficult to
calculate and the parties agree to set forth a specific sum in
the event of such an occurrence. Contractor shall be responsible
for the per day amounts described below payable to Owner as total
liquidated damages for each day the Project is not substantially
complete and ready for the purpose intended. Such liquidated
damages shall include any and all damages, including but not
limited to actual and consequential damages (Owner does not waive
any of its rights or remedies under the First Addendum or General
Contractor Agreement by this liquidated damages provision).
LATE PENALTY
a. 1-15 days late $ 1,000/day
b. 16-30 days late 2,000/day
for those days over 15
days
c. > 30 days late 2,500/day
for those days over 30
days
5. Contractor Coordination. Contractor agrees to
provide the following services, in addition to those that may be
provided for in the Agreement, as part of the basic services of
Contractor:
(a) Contractor shall be responsible for mechanical and
plumbing engineering. Contractor shall coordinate with
electrical engineer, previously hired by Owner. Contractor
shall assume responsibility for electrical design.
(b) Contractor shall coordinate and interface with all
architectural and engineering disciplines and other
disciplines working on the Project.
6. Performance of Contractor Services. All services
of Contractor shall be performed to the satisfaction of Owner, as
per standards of the industry.
7. Reaffirmation of Agreement. The Agreement, except
as modified by this First Addendum, is reaffirmed in its
entirety. If there is any inconsistency between the Agreement
and this First Addendum the terms of the First Addendum shall
control.
8. Exclusions. The following shall not be the
responsibility of Contractor:
(a) Architectural and Engineering Fees except for
Mechanical and Plumbing Engineering Fees.
(b) Sewer and water assessments.
(c) City of Xxxxxxxxx Building Inspectors, plan check fees,
transportation tax, building permits, development fees,
connection fees, special inspections, testings and regular
inspections.
(d) Furnishings.
(e) Carpeting (Contractor shall install only).
(f) Interior decor and exterior decor, including
stonework (Contractor shall install all drywall and drywall
soffits in the casino, including raised walks).
(g) Wall coverings and floor coverings (Contractor
shall install only).
(h) Power Company charges.
(i) Installation of gaming equipment.
(j) Signs.
(k) Special plumbing and electrical fixtures (standard
fixtures included in base contract).
(l) Bar and kitchen equipment (Contractor shall do
rough installation to all equipment locations with all
utilities in slab).
(m) All site work specifically including, but not
limited to, grading, paving, site utilities (wet and dry),
landscaping, storm drain, site lighting, bollards, benches,
etc. Such may be added through change order at option of
Owner. Contractor shall coordinate and interface with such
disciplines.
(n) All exterior shapes, domes, caps, etc., shall be
provided by Owner (Contractor shall provide flat stucco
system for same).
(o) Specialty systems (public address, computers,
sound, keno, bingo, T.V. (cable and closed circuit),
telephone, security and surveillance, etc.). (Contractor
shall install/supply conduit and power for all specialty
systems).
(p) Swimming pool, spa and related work (Contractor to
coordinate only).
(q) Handling of any existing on-site toxic/hazardous
materials.
(r) Building illumination or signs (power only
included).
(s) Concealed fire sprinkler heads.
(t) Site utilities (Contractor to provide utilities 5 feet
from structure to connect with utilities installed during
site work).
(u) Elevator cab interior finishes.
(v) Gaming equipment, tables and slot machines
(Contractor to install/provide all conduit, xxxxxx duct,
power, etc.).
(w) Property insurance.
(x) Window coverings.
(j) Handicap lift.
(k) Porte Cocheres. Such may be added through change order at
option of Owner.
(l) Fire/life safety package.
(m) Tenant improvement work at executive office areas of casino.
9. Condition of Documents. It is expressly
understood that the Contract documents, including Plans and
Specifications, are incomplete as of the execution date of this
Contract. Should such documents substantially change as a result
of changes beyond the control of the Contractor (Architect,
Engineer, Governmental Agency, or the Owner) a Change Order shall
be issued modifying Contract sum, either deductive or additive.
Project Architect shall be 100% complete with all documents no
later than December 1, 1995. If not, project delays will occur
at cost of such shall be borne by Owner.
10. Changes Orders. Should Scope of the Work change,
Contractor shall receive a Change Order, either deductive or
additive. Should a Change Order be additive, Contractor shall be
entitled to a 10% fee, above all direct and indirect costs. Any
such Change Order may cause schedule modifications, resulting in
overall substantial completion date modifications.
11. Time is of the Essence. Owner and Contractor
mutually agree that time is of the essence of this Contract and
shall work diligently to meet the substantial completion dates.
Owner shall be responsible to get timely cooperation from
Architects, Engineers and Consultants that are under its control.
12. Contract Control. It is understood by all parties
that BA Construction Services shall serve as contract control
agent. All parties shall work diligently to provide any required
information in a timely manner so as to avoid delays in
processing of Progress and Final Payments.
13. Complimentary Contracts. Owner and Contractor are
entering into two separate contracts for the construction of The
Reserve Hotel/Casino. Such two contracts are intended to
compliment one another so as to provide one complete Project
consisting of the Hotel and Casino.
14. Presumption. This Agreement nor any section of
this Agreement shall be construed against any party due to the
fact that the Agreement or any section of it was drafted by said
party.
IN WITNESS WHEREOF, the parties have signed this First
Addendum the date and year first above written.
OWNER: CONTRACTOR:
GEM GAMING, INC., CAMCO PACIFIC CONSTRUCTION, INC..
A NEVADA CORPORATION A CALIFORNIA CORPORATION
/s/Xxxxxxx X. Xxxxxxxx /s/Xxxxxx X. Xxxxxxxx
By:_______________________ By:____________________________
Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx,
President President
