Agreement Between Owner And Contractor

STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONTRACTOR


where the basis of payment is the
COST OF THE WORK PLUS A FEE
with or without a Guaranteed Maximum Price


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 Associated General Contractors of America.


AGREEMENT


made as of the ninth day of February in the year of Nineteen Hundred and Ninety-Nine


BETWEEN the Owner: COAST RESORTS, INC.
4500 West Tropicana
Las Vegas, NV 89103


and the Contractor: J.A. TIBERTI CONSTRUCTION CO., INC.
1806 Industrial Road
Las Vegas, NV 89102


the Project is: BUFFET RESTAURANT - TENANT IMPROVEMENT
The Orleans Hotel & Casino
4500 West Tropicana Avenue
Las Vegas, NV 89103


the Architect is: LEO A. DALY
911 Wilshire Blvd., Suite 2000
Los Angeles, CA 90017


The Owner and Contractor agree as set forth below. 2
ARTICLE 1
THE CONTRACT DOCUMENTS


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.


ARTICLE 2
THE WORK OF THIS CONTRACT


2.1 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:


See Attachment "A"


ARTICLE 3
RELATIONSHIP OF THE PARTIES


3.1 The Contractor accepts the relationship of trust and confidence established
by this Agreement and covenants with the Owner to cooperate with the
Architect and utilize the Contractor's best skill, efforts and judgment in
furthering the interests of the Owner; 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 agrees 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 making payments to the Contractor in
accordance with requirements of the Contract Documents.


ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


4.1 The date of commencement is the date from which the Contract Time of
Subparagraph 4.2 is measured; it 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 on January 2, 1989.


4.2 The Contractor shall achieve Final Completion of the entire Work not later
than: May 14, 1999 if required by the Owner, the Contract Time will be
negotiated with and approved by the Contractor, subject to adjustments of
this Contract Time as provided in the Contract Documents.
THERE ARE NO PROVISIONS FOR LIQUIDATED DAMAGES IN THIS CONTRACT.


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ARTICLE 5
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 the Contractor's
Fee determined as follows: Per Attachment "B"


The Contractor's fee shall be 7% of the cost of the work. The
Contractor's fee shall be adjusted for changes in the work at 7% of
the cost of the changes.


5.2 GUARANTEED MAXIMUM PRICE


5.2.1 The sum of the Cost of the Work and the Contractor's Fee is
guaranteed by the Contractor not to exceed: See Attachment "B"


subject to additions and deductions by Change Order as provided in
the Contract Documents. Such maximum sum is referred to in the
Contract Documents as the Guaranteed Maximum Price. Costs which would
cause the Guaranteed Maximum Price to be exceeded shall be paid by
the Contractor without reimbursement by the Owner.


5.2.2 The Guaranteed Maximum Price is based upon the following alternates,
if any, which are described in the Contract Documents and are hereby
accepted by the Owner:


5.2.3 The amounts agreed to for unit prices, if any, are as follows:


NONE


ARTICLE 6
CHANGES IN THE WORK


6.1 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE


6.1.1 Adjustments to the Guaranteed Maximum Price on account of changes in
the Work may be determined by any of the methods listed in
Subparagraph 7.3.3 of the General Conditions.


6.1.2 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.


6.1.3 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 4
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 5.1 of this Agreement.


6.3 ALL CONTRACTS


6.3.1 If no specific provision is made in Paragraph 5.1 for adjustment of
the Contractor's Fee in the case of changes in the Work, or if the
extent of such changes is such, in the aggregate, that application of
the adjustment provisions of Paragraph 5.1 will cause substantial
inequity to the Owner or Contractor, the Contractor's Fee shall be
equitably adjusted on the basis of the Fee established for the
original Work.


ARTICLE 7
COSTS TO BE REIMBURSED


7.1 The term Cost of the Work shall mean costs reasonably and necessarily
incurred by the Contractor in the proper performance of the Work. Such
costs shall be at rates not higher than the standard paid at the place
of the Project except with prior consent of the Owner. The Cost of the
Work shall include only the items set forth in this Article 7.


7.1.1 LABOR COSTS


7.1.1.1 Reasonable 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 Reasonable wages or salaries of the Contractor's supervisory and
administrative personnel when stationed at the site with the Owner's
agreement. (if it is intended that the wages or salaries of certain
personnel stationed at the Contractor's principal or other offices
shall be included in the Cost of the Work, identify in Article 14
the personnel to be included and whether for all or only part of their
time.)


7.1.1.3 Reasonable wages and salaries 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 of the Work, but only for that portion of their
time required of the Work.


7.1.1.4 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 pension, provided such costs are
based on wages and salaries included in the Cost of the Work under
Clauses 7.1.1.1 through 7.1.1.3.


7.1.2 SUBCONTRACT COSTS


Payments made by the Contractor to Subcontractors 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. Unused excess materials, if any,
shall be handed over to the Owner at the completion of the Work or, at
the


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Owner's option, shall be sold by the Contractor; amounts realized, if
any, from such sales shall be credited to the Owner as a deduction
from the Cost of the Work.


7.1.4 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND
RELATED ITEMS


7.1.4.1 Reasonable costs, including transportation, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities,
machinery, equipment, and hand tools not customarily owned by the
construction workers, which are provided by the Contractor at the site
and fully consumed in the performance of the Work; and cost less
salvage value on such items if not fully consumed, whether sold to
others or retained by the Contractor. Cost for items previously used
by the Contractor shall mean fair market value.


7.1.4.2 Reasonable 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. Rates and quantities of equipment rented shall be subject to
the Owner's prior approval.


7.1.4.3 Costs of removal of debris from the site.


7.1.4.4 Costs of long-distance telephone calls, postage and parcel delivery
charges, telephone service at the site incurred as a direct result of
the contractor's work on the project.


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.


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 for which the Contractor is required by the
Contract documents to pay.


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 7.2.4 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; pro ...