Standard Form of Agreement Between Owner And Contractor

Exhibit 10.3


1997 Edition- Electronic Format


AIA Document B141-1997

Standard Form of Agreement Between Owner and Architect with Standard Form of Architect' s Services

TABLE OF ARTICLES


1.1 INITIAL INFORMATION

1.2 RESPONSIBILITIES OF THE PARTIES

1.3 TERMS AND CONDITIONS

1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS

1.5 COMPENSATION


AGREEMENT made as of the 31 st day of January in the year 2003, effective as of the 10 th day of October, 2001.


BETWEEN the Architect' s client identified as the Owner:


Old Evangeline Downs, LLC

7620 N.E. Evangeline Thruway Carenero, Louisiana 70520

and the Architect:

KGA Architecture

4170 South Decatur Boulevard, Suite B-5

Las Vegas, Nevada 89103

For the following Project: Evangeline Casino and Racetrack, Opelousas, Louisiana


The Owner and Architect agree as follows.


ARTICLE 1.1 INITIAL INFORMATION

1.1.1 This agreement is based on the letter from the Architect to Peninsula Gaming dated October 10, 2001. By signing below, Peninsula Gaming assigns all of its right, title and interest in and to said letter to the Owner. The Owner accepts such assignment and assumes all obligations thereunder. Architect consents to such assignment and agrees that Peninsula Gaming is discharged thereunder and is relieved and released from all obligations thereunder. Said letter is attached hereto as Exhibit A.


1.1.2 PROJECT PARAMETERS


1.1.2.1 The objective or use is described in Exhibit A.


1.1.2.2 The physical parameters are described in Exhibit A.


1.1.2.3 The Owner' s Program is described in Exhibit A.


1.1.2.4 The legal parameters are described in Exhibit A.


1.1.2.5 The financial parameters are described in Exhibit A.


1.1.2.6 The time parameters are described in Exhibit A.


1.1.2.7 The proposed procurement or delivery method for the Project is described in Exhibit A.


1.1.2.8 All other Other parameters are described in Exhibit A.


1.1.3 PROJECT TEAM


1.1.3.1 The Owner' s Designated Representative is Michael Luzich or his designee.


1.1.3.3 The Owner' s other consultants and contractors are:


Contractor:

W.G. Yates & Sons Construction Company

200-A Lentensa Street

Biloxi, Mississippi 39530

Owner' s Construction Manager: KGA Architecture

4170 South Decatur Boulevard, Suite B-5

Las Vegas, Nevada 89103

1.1.3.4 The Architect' s Designated Representative is Ed Kittrell Jr. or his designee.

1.1.3.5 The consultants retained at the Architect' s expense are described in Exhibit A.


1.1.5 When the services under this Agreement include contract administration services, the General Conditions of the Contract for Construction shall be the 1997 edition of AIA Document A201 as modified and amended in the form attached to the Standard Form of Agreement between Owner and Contractor dated January 21, 2003 (the " Construction Contract" ).


1.1.6 The information contained in this Article 1.1 may be reasonably relied upon by the Owner and Architect. Both parties, however, recognize that such information may change.

ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES

1.2.1 The Owner and the Architect shall cooperate with one another to fulfill their respective obligations under this Agreement. Both parties shall endeavor to maintain good working relationships among all members of the Project team.


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1.2.2 OWNER

1.2.2.1 Unless otherwise provided under this Agreement, the Owner shall provide full information in a timely manner regarding requirements for and limitations on the Project. The Owner shall furnish to the Architect, within 15 days after receipt of a written request, information necessary and relevant for the Architect to evaluate, give notice of or enforce lien rights.


1.2.2.2 The Contractor shall periodically update the budget for the Project, including that portion allocated for the Cost of the Work as set forth in the construction Contract.


1.2.2.3 The Owner' s Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on the Owner' s behalf with respect to the Project. The Owner or the Owner' s Designated Representative shall render decisions in a timely manner pertaining to documents submitted by the Architect in order to avoid unreasonable delay in the orderly and sequential progress of the Architect' s services.


1.2.2.4 The Architect shall furnish the services of consultants to perform the services as set forth in Exhibit A.

1.2.2.5 The Owner or the Architect, as set forth in Exhibit A, shall furnish tests, inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials.

1.2.2.6 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner' s needs and interests.


1.2.2.7 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project, including any errors, omissions or inconsistencies in the Architect' s Instruments of Service.

1.2.3 ARCHITECT


1.2.3.1 The services performed by the Architect, Architect' s employees and Architect' s consultants shall be enumerated in Exhibit A.

1.2.3.2 The Architect' s services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. The Architect shall submit for the Owner' s approval a schedule for the performance of the Architect' s services as set forth in Exhibit A and which shall be adjusted, if necessary, as the Project proceeds. This schedule shall include allowances for periods of time required for the Owner' s review, for the performance of the Owner' s consultants, and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Architect or Owner.

1.2.3.3 The Architect' s Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on the Architect' s behalf with respect to the Project.


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1.2.3.4 The Architect shall maintain the confidentiality of information specifically designated as confidential by the Owner, unless withholding such information would violate the law, or prevent the Architect from establishing a claim or defense in an adjudicatory proceeding. The Architect shall require of the Architect' s consultants similar agreements to maintain the confidentiality of information specifically designated as confidential by the Owner.


1.2.3.5 Except with the Owner' s knowledge and consent, the Architect shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Architect' s professional judgment with respect to this Project.

1.2.3.6 The Architect shall review laws, codes, and regulations applicable to the Architect' s services. The Architect shall respond in the design of the Project to requirements imposed by governmental authorities having jurisdiction over the Project.


1.2.3.7 The Architect shall be entitled to rely on the accuracy and completeness of services and information furnished by the Owner. The Architect shall provide prompt written notice to the Owner if the Architect becomes aware of any errors, omissions or inconsistencies in such services or information.

ARTICLE 1.3 TERMS AND CONDITIONS

1.3.1. COST OF THE WORK

1.3.1.1 The Cost of the Work shall be as defined in the Construction Contract.


1.3.1.3The Cost of the Work does not include the compensation of the Architect and the Architect' s consultants.


1.3.2 INSTRUMENTS OF SERVICE

1.3.2.1 Drawings, specifications and other documents, including those in electronic form, prepared by the Architect and the Architect' s consultants are Instruments of Service for use solely with respect to this Project. The Architect and the Architect' s consultants shall be deemed the authors and owners of their respective Instruments of Service and shall retain all common law, statutory and other reserved rights, including copyrights.

1.3.2.2 Upon execution of this Agreement, the Architect grants to the Owner, the Contractor and all subcontractors and subsubcontractors (as such terms are defined in the Construction Contract) a nonexclusive license to reproduce the Architect' s Instruments of Service solely for purposes of constructing, using and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar nonexclusive licenses from the Architect' s consultants consistent with this Agreement.

1.3.2.3 The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein to another party without the prior written agreement of the Architect. However, the Owner shall be permitted to authorize the Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers to reproduce applicable portions of the Instruments of Service appropriate to and for use in their execution of the Work by license granted in Subparagraph 1.3.2.2. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is not to be


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construed as publication in derogation of the reserved rights of the Architect and the Architect' s consultants. The Owner shall not use the Instruments of Service for future additions or alterations to this Project or for other projects, unless the Owner obtains the prior written agreement of the architect and the Architect' s consultants. Any unauthorized use of the Instruments of Service by the Owner shall be at the Owner' s sole risk and without liability to the Architect and the Architect' s consultants.

1.3.2.4 Exhibit A sets forth the specific conditions governing the format of such Instruments of Service or electronic data, including any special limitations or licenses not otherwise provided in this Agreement.


1.3.3 CHANGES IN SERVICES


1.3.3.1 Changes in Services of the Architect, including services required of the Architect' s consultants, may be accomplished after execution of this Agreement in the manner set forth in Exhibit A.

1.3.4 MEDIATION

1.3.4.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party. If such matter relates to or is the subject of a lien arising out of the Architect' s services, the Architect may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by arbitration.

1.3.4.2 The Owner and the Architect shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.

1.3.4.3 The parties shall share the mediator' s fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.


1.3.5 ARBITRATION

1.3.5.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with Paragraph 1.3.4.


1.3.5.2 Claims, disputes and other matters in question between the parties that are not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the


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American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association.


1.3.5.3 A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.

1.3.5.4 No arbitration arising out of or relating to this Agreement shall include, by consolidation or joinder or in any other manner, an additional person or entity not a party to this Agreement, except by written consent containing a specific reference to this Agreement and signed by the Owner, Architect, and any other person or entity sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent or with a person or entity not named or described herein. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to this Agreement shall be speci ...