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AIA Document A III
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 AJA 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.
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AGREEMENT
made as of the twenty-ninth (29th) day of December in the year of Nineteen
Hundred and Ninety-Seven (1997).
BETWEEN the Owner: Riviera Black Hawk, Inc.
(Name and address) 2901 Las Vegas Boulevard South
Las Vegas, NV 89109
and the Contractor: Weitz-Cohen Construction Co.
(Name and address) 899 Logan Street, Suite 600
Denver, CO 80203
the Project is: Riviera Black Hawk Casino
(Name and address) 444 Main Street
Black Hawk, CO 80422
the Architect is: Melick Associates, Inc.
(Name and address) Suite Four West
1620 Market Street
Denver, CO 80202
The Owner and Contractor agree as set forth below.
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Copyright 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978. (C) 1987 by The
American Institute of Architects, 1735 New York Avenue, N.W., Washington, D.C.
20006. Reproduction of the material herein or substantial quotation of its
provisions without written permission of the AIA violates the copyright laws of
the United States and will be subject to legal prosecution.
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ARTICLE 1
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.
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:
The Contractor will perform all services for site development, parking garage,
casino, and associated areas, as further defined by the Plans and
Specifications.
See Exhibit B, Add Paragraph 2.2 and 2.3.
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; 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.
(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 for proceed)
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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.
4.2. The Contractor shall 2chieve 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.)
See Exhibit B, Paragraph 4.2.
,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 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:
(State a lump sum percentage of Cost of the Work or other provision for
determining the Contractor's Fee, and explain how the Contractor's Fee is to be
adjusted for changes in the Work.)
See Exhibit B, Subparagraph 5.1.
5.2. GUARANTEED MAXIMUM PRICE (IF APPLICABLE)
5.2.1. The sum of the Cost of the Work and the Contractor's Fee is guaranteed by
the Contractor not to exceed Twenty-four Million Five Hundred Thousand and
00/000 ________ Dollars ($24,500,000.00 ), 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.
(Insert specific provisions if the Contractor is to participate in any savings.)
All savings on the project will be returned to 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:
Exhibit F, Paragraph #1, is the basis for the guaranteed maximum price.
5.2.3. The amounts agreed to for unit prices, if any, are as follows:
(State unit prices only if a Guaranteed Maximum Price is inserted in
Subparagraph 5.2.1.)
Does Not Apply.
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ARTICLE 6
CHANGES IN THE WORK
6.1. CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
6.1.1. Adjustment 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 Condition.
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 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 Article ___ of this Agreement and the terms
"fee" and "a reasonable allowance for overhead and profit" shall mean the
Contractor's Fee a, defined in Paragraph 5.1 of this Agreement.
ARTICLE 7
COSTS TO BE REIMBURSED
7.1. The term Cost of the Work shall mean costs 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
See Exhibit B , Paragraph 7.1.1.1.
See Exhibit B, Paragraph 7.1.1.2.
(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.)
See Exhibit B, paragraph 7.1.1.3.
7.1.2. SUBCONTRACT COSTS
See Exhibit B. Paragraph 7.1.2.
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.
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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 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. 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. 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.
See Exhibit B, Paragraph 7.1.4.2.
7.1.4.3. Costs of removal of debris from the site.
See Exhibit B, Paragraph 7.1.4.4.
7.1.4.4. 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.
See Exhibit B, Paragraph
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
settlement made with the
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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 a Guaranteed Maximum Price, if any, and provided that such royalties, fees
and costs are not excluded by the last sentence of Subparagraph 3.17.1 of the
General Conditions or other provisions of the Contract Documents.
7.1.5.6. Deposits lost for causes other than the Contractor's fault or
negligence.
7.1.6. OTHER COSTS
7.1.6.1. Other costs incurred in the performance of the Work if and to the went
approved in advance in writing by the Owner.
See Exhibit B, Add Paragraphs 7.1.6.2 and 7.1.6.3.
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.
Exhibit B, Paraqraph.7.2.2.
7.2.3. In repairing damaged Work other man 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.
ARTICLE 8
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 Clauses 7.1.1.2 and 7.1.1.3 or as may be
provided in Article 14 .
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8.1.2. Expenses of the Contractor's principal office and offices other than the
site office.
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. Rental costs of machinery and equipment, except as specifically provided
in Clause 7.1.4.2.
8.1.6. Except as provided in Subparagraphs 7.2.2 through 7.2.4 and Paragraph
13.5 of 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.
8.1.7. Any cost not specifically and expressly described in Article 7.
8.1.8. Costs which would cause the Guaranteed maximum Price, if any, to be
exceeded.
ARTICLE 9
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.
9.2. Amounts which accrue to the Owner in accordance with the provisions of
Paragraph 9.1 shall be credited to the Owner as deduction from the Cost of the
Work.
ARTICLE 10
SUBCONTRACTS AND OTHER AGREEMENTS
10.1. Those portions of the Work that the Contractor does riot customarily
perform with the Contractor's own personnel shall be performed under
subcontracts or by other appropriate agreements with the Contractor. The
Contractor shall obtain bids from Subcontractors and from suppliers of materials
or equipment fabricated especially for the Work which bids will be accepted. The
Owner may designate specific persons or entities from whom the Contractor shall
obtain bids; however, if a Guaranteed Maximum Price has been established, the
Owner may 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.
See Exhibit B, Paragraph 10.1.
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 Architect (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
7
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.
10.3. Subcontracts or other agreements shall conform to the payment provisions
of Paragraphs 12.7 and 12.8. and shall not be awarded on the basis of cost plus
a fee without the prior consent of the Owner.
See Exhibit B, Add Paragraph 10.4
ARTICLE 11
ACCOUNTING RECORDS
11.1. The Contractor shall keep hill and detailed accounts and exercise such
controls as may be necessary for proper financial management under this
Contract; the accounting and control systems shall be satisfactory to the Owner.
The Owner and the Owner's accountants shall be afforded 2CCCSS to the
Contr2ctor'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
VC2rS after final p2vmcnE, or for such longer period as m2% be required b'- law.
ARTICLE 12
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 Contract Sum 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, or as follows:
12.3. Provided an Application for Payment is received by the Architect not later
than the tenth (10th) day of a month, the Owner shall make payment to the
Contractor not later than the thirtieth (30th) 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 twenty (20) days
after the Architect receives the Application for payment.
12.4. With each Application for Payment the Contractor shall submit payrolls,
petty cash accounts, receipted invoices or invoices with check vouchers
attached, and any other evidence required by the Owner or Architect to
demonstrate that cash disbursements already made by the Contractor on account of
the Cost of the Work equal or exceed (1) progress payments already received by
the Contractor; less (2) that portion of those payments attributable to the
Contractor's Fee; plus (3) payrolls for the period covered by the present
Application for Payment; plus (4) retainage provided in Subparagraph 12.5.4, if
any, applicable to prior progress payments.
12.5. CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
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12.5.1. Each Application for Payment shall be based upon the most recent
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, except that the Contractor's Fee
shall be shown as a single separate item. The schedule of values shall 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.
12.5.2. Applications for Payment shall show the percentage completion of each
portion of the Work as of the end of the period covered by the Application for
Payment. The percentage completion shall be the lesser of (1) the percentage of
that portion of the Work which has actually been completed or (2) the percentage
obtained by dividing (a) the expense which has actually been incurred by the
Contractor on account of that portion of the Work for which the Contractor has
made or intends to make actual payment prior to the next Application for Payment
by (b) the share of the Guaranteed Maximum Price allocated to that portion of
the Work in the schedule of values.
12.5.3. Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
12.5.3.1. 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 Guaranteed Maximum Price allocated to
that portion of the Work in the schedule of values. 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.
12.5.3.2. Add that portion of the Guaranteed Maximum Price properly allocable to
materials and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work or, if approved in advance by the Owner, suitably
stored off the site at a location agreed upon in writing.
12.5.3.3. Add the Contractor's Fee, less retainage of ten percent (10%). The
Contractor's Fee shall be computed upon the Cost of the Work described in the
two preceding Clauses at the rate stated in Paragraph 5.1 or, if the
Contractor's Fee is stated as a fixed sum in that Paragraph, shall be an amount
which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the
two preceding Clauses bears to a reasonable estimate of the probable Cost of the
Work upon its completion.
12.5.3.4. Subtract the aggregate of previous Payments Made by the Owner.
12.5.3.5. Subtract the shortfall, if any, indicated by the Contractor in the
documentation required by Paragraph 12.4 to substantiate prior Applications for
Payment. or resulting from errors subsequently discovered by the Owner's
accountants in such documentation.
12.5.3.6. 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.
12.5.4. Additional retainage, if any, shall be as follows:
(If it is intended to retain additional amounts from progress payments to the
Contractor beyond (1) the retainage from the Contractor's Fee provided in Clause
12.5.3.3(2) the retainage from Subcontractors provided in Paragraph 12.7 below;
and (3) the retainage, if any, provided by other provisions of the Contract,
insert provision for such additional retainage here. Such
9
provision, if made, should also describe any arrangement for limiting or
reducing the amount retained after the Work reaches a certain state of
completion.).
NONE
12.5.4.1. Subtract amounts, if any, for which the Architect has withheld or
withdrawn a Certificate for Payment as provided in the Contract Documents.
12.5.5. Additional retainage, if any, shall be as follows:
NONE
12.6. Except with the Owner's prior approval, payments to Subcontractors
included in the Contractor's Applications for Payment shall not exceed an amount
for each Subcontractor calculated as follows:
12.6.1. Take that portion of the Subcontract Sum properly allocable to completed
Work as determined by multiplying the percentage completion of each portion of
the Subcontractor's Work by the share of the total Subcontract Sum allocated to
that portion in the Subcontractor's schedule of values, less retainage of TEN
percent (10%). Pending final determination of amounts to be paid to the
Subcontractor for 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
Subcontract Sum has not yet been adjusted by Change Order.
12.6.2. Add that portion of the Subcontract Sum properly allocable to materials
and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work or, if approved in advance by the Owner, suitably
stored off the Site at a location agreed upon in writing, less retainage of TEN
percent (10%).
12.6.3. Subtract the aggregate of previous payments made by the Contractor to
the Subcontractor.
12.6.4. Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for payment by the Owner to the Contractor for reasons
which are the fault of the Subcontractor.
12.6.5. Add, upon Substantial Completion of the entire Work of the Contractor, a
sum sufficient to increase the total payments to the Subcontractor to One
Hundred percent( 100%) of the Subcontract Sum, less amounts, if any, for
incomplete Work and unsettled claims; and, if final completion of the entire
Work is thereafter materially delayed through no fault of the Subcontractor in
accordance with Subparagraph 9.10.3 of the General Conditions.
(if it is intended, prior to Substantial Completion of the entire Work of the
Contractor, to reduce or limit the retainage from Subcontractors resulting from
the percentages inserted in Subparagraphs 12.7.1 and 12/7.2 above, and this is
not explained elsewhere in the Contract Documents, insert here provisions for
such reduction or limitation.)
See Exhibit B. Add paragraphs 1.2.7.6, 12.7.7 and 12.71.8.
The Subcontract Sum is the total amount stipul2ted in the subcontract to be paid
by the Contractor to the Subcontractor for the Subcontractor's performance of
the subcontract.
12.7. 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.
12.8. In taking action on the Contractor's Applications 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
10
deemed to represent that the Architect has made a detailed examination, audit or
arithmetic verification of the documentation submitted in accordance with
Paragraph 12.4 or other supporting data: 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. Such examinations, audits and verifications, if
required by the Owner, will be performed by the Owner's accountants acting in
the sole interest of the Owner.
ARTICLE 13
FINAL PAYMENT
13.1. Final payment 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 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: (2) a final
Application for Payment and a final accounting for the Cost of the Work have
been submitted by the Contractor and reviewed by the Owner's accountants; and
(3) a final Certificate for Payment has then 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:
13.2. The amount of the final Payment shall be calculated as follows:
13.2.1. Take the sum of the Cost of the Work substantiated by the Contractor's
final accounting and the Contractor's Fee; but not more than the Guaranteed
Maximum Price, if any.
13.2.2. Subtract amounts, if any, for which the Architect withholds, in whole or
in part, a final Certificate for Payment as provided in Subparagraph 9.5.1 of
the General Conditions or other provisions of the Contract Documents.
13.2.3. Subtract the aggregate of previous Payments made by the Owner.
If the aggregate Of Previous payments made by the Owner exceeds the amount due
the Contractor, the Contractor shall reimburse the difference to the Owner.
13.3. The Owner's accountants will review and report in writing on the
Contractor's final Accounting within 30 days after delivery of the final
accounting to the Architect by the Contractor. Based upon such Cost of the Work
as the Owner's accountants report to be substantiated by the Contractor's final
accounting, and provided the other conditions of Paragraph 13.1 have been met,
the Architect will, within seven days after receipt of the written report of the
Owner's accountants, either issue to the Owner a final Certificate for Payment
with a copy to the Contractor, or notify the Contractor and Owner in writing of
the Architect's reasons for withholding a Certificate as provided in
Subparagraph 9.5.1 of the General Conditions. The time periods stated in this
Paragraph 13.3 supersede those stated in Subparagraph 9.4.1 of the General
Conditions.
13.4. If the Owner's accountants report the Cost of the Work as substantiated by
the Contractor's final accounting to be less than claimed by the Contractor, the
Contractor shall be entitled to demand arbitration of the disputed amount
without a further decision of the Architect. Such demand for arbitration shall
be made by the Contractor within 30 days after the Contractor's receipt of a
copy of the Architect's final Certificate for Payment; failure to demand
arbitration within this 30-day period shall result in the substantiated amount
reported by the Owner's accountants becoming binding on the
11
Contractor. Pending a final resolution by arbitration. the Owner shall pay the
Contractor the amount certified in the Architect's final Certificate for
Payment.
13.5. If, subsequent to final payment and at the Owner's request, the Contractor
incurs costs described in Article 7 and not excluded by Article 8 to correct
defective or nonconforming Work, the Owner shall reimburse the Contractor such
costs and the Contractor's FCC applicable thereto on the same basis as if such
costs had been incurred prior to final payment, but not in excess of the
Guaranteed Maximum Price, if any. If the Contractor has participated in savings
as provided in Paragraph 5.2, the amount of such savings shall be recalculated
and appropriate credit given to the Owner in determining the net amount to be
paid by the Owner to the Contractor.
ARTICLE 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 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.
If the Owner fails to make timely payments, The Contractor shall receive
interest at the Prime Lending Rate plus three percent (3%) for all days the
payments are late. The Prime Rate will be that of the Norwest Bank of Denver as
it is published from time to time, at its current rate.
(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 laces 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.)
14.3. Other provisions:
See Exhibit B, Add Paragraph 14.3.
ARTICLE 15
TERMINATION OR SUSPENSION
15.1. The Contract may be terminated by the Contractor as provided in Article 14
of the General Conditions; however, the amount to be paid to the Contractor
under Subparagraph 14.1.2 of the General Conditions shall not exceed the amount
the Contractor would be entitled to receive under Paragraph 15.3 below, except
that the Contractor's Fee shall be calculated as if the Work had been fully
completed by the Contractor, including a reasonable estimate of the Cost of the
Work for Work not actually completed.
15.2. If a Guaranteed Maximum Price is established in Article 5, the Contract
may be terminated by the Owner for cause as provided in Article 14 of the
General Conditions; however, the amount, if any, to be paid to the Contractor
under Subparagraph 14.2.4 of the General Conditions shall not cause the
Guaranteed Maximum Price to be exceeded, nor shall it exceed the amount the
Contractor would be entitled to receive under Paragraph 15.3 below.
12
15.3. If no Guaranteed Maximum Price is established in Article 5, the Contract
may be terminated by the Owner for cause provided in Article 14 of the General
Conditions; however, the Owner shall then pay the Contractor an amount
calculated as follows:
15.3.1. Take the Cost of the Work incurred by the Contractor to the date of
termination.
15.3.2. Add the Contractor's Fee computed upon the Cost of the Work to the date
of termination 21 the rate stated in Paragraph 5.1 or, if the Contractor's Fee
is stated as a fixed sum in that Paragraph, an amount which bears the same ratio
to that fixed-sum Fee as the Cost of the Work at the time of termination bears
to a reasonable estimate of the probable Cost of the Work upon its completion.
15.3.3. Subtract the aggregate of previous payments made by the Owner.
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 under Subparagraph 15.3. 1. 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.
15.4. The Work may be suspended by the Owner as provided in Article 14 of the
General Conditions; in such case the Guaranteed Maximum Price, 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 Paragraphs 5.1 and 6.3
of this Agreement.
ARTICLE 16
ENUMERATION 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 is this executed Standard Form of Agreement Between Owner
and Contractor. AIA Document A111, 198 Edition.
16.1.2. The General Conditions are the General Conditions of the Contract for
Construction, AIA Document A201, 198 Edition.
16.1.3. The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated ___________ and are as follows:
Document Title Pages
TO BE DETERMINED BY CHANGE ORDER.
16.1.4. The Specifications are those contained in the Project Manual dated as in
Paragraph 16.1.3. and are as follows:
13
(Either list the Specifications here or refer to an exhibit attached to the
Agreement.)
Section Title Pages
TO BE DETERMINED BY CHANGE ORDER.
16.1.5. The Drawings are as follows, and are dated __________ unless a different
date is show below:
Number Title Date
Reference Exhibit A.
16.1.6. The addenda, if any, are as follows:
Number Date Pages
TO BE ADDED BY FUTURE CHANGE ORDER AS NEEDED.
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in this
Article 16.
16.1.7. 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, same 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.)
Exhibit A - Drawing List
Exhibit B - Supplementary Conditions to AIA A111, Standard Form of Agreement
Between Owner and Contractor
Exhibit C - Supplementary conditions to the AIA A201 General Conditions
for the Agreement Between Owner and Contractor
Exhibit D - Contractor's Project Schedule
Exhibit E - Contractor's Project Budget
Exhibit F - Contractor's Qualifications to the Drawings and Specifications
Exhibit G - Small Tools Defined
Exhibit H - Contractor's Equipment Rental Rates
Exhibit I - Data for Basis of Weather Assumptions
Exhibit J - Contractor's Standard Subcontract Agreement Form; Purchase Order
Form; Interim and Final Lien Waivers.
14
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-RIVIERA BLACK HAWK, INC. CONTRACTOR - WEITZ-COHEN
CONSTRUCTION CO.
- ---------------------------------- -------------------------------------
(Signature) (Signature)
William L. Westerman, President Gary D. Meggison, Vice President
- ---------------------------------- -------------------------------------
(Printed name and title) (Printed name and title)
15
EXHIBIT A
Drawings List
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 1 of 2
1. Preliminary/schematic architectural drawings prepared by Melick Associates,
Denver, Colorado.
A0.2 General Information Dated October 8, 1997
A1.1 Site/Development Plan "
A2.1 Parking Level 1 Floor Plan "
A2.2 Parking Level 2 Floor Plan "
A2.3 Parking Level 3 Floor Plan "
A2.4 Casino & Parking Level 4 Floor Plan "
A2.5 Parking Levels 5 & 7 Floor Plan "
A2.6 Upper & Parking Level 6 Floor Plan "
A2.7 Not Used "
A2.8 Not Used "
A2.9 Roof Plan "
A4.1 South Elevations "
A4.2 North Elevation "
A4.3 East & West Elevations "
A5.1 East-West Section "
A5.2 North-South Section Dated October 8, 1997
2. Preliminary/schematic structural drawings prepared by Monroe Newell
Consulting Engineers, Denver, Colorado
Unnumbered Foundation Plan - Schematic Design Dated October 13, 1997
Unnumbered Foundation Plan & 2nd Level Framing Plan "
Unnumbered Valet Parking Level Framing Plan "
Unnumbered Parking Level 3 Framing Plan "
Unnumbered Casino Framing Plan Dated October 13, 1997
Unnumbered Casino Level Framing Plan - Steel (Revised) Dated October 20, 1997
Unnumbered Level 4 Framing Plan Dated October 13, 1997
Unnumbered Upper Framing Plan "
Unnumbered Parking Level 6 "
Unnumbered Upper & Parking Level 6 Framing Dated October 13, 1997
Unnumbered Upper Framing Plans - Steel (Revised) Rec.'d October 20, 1997
Unnumbered Roof Plan Dated October 13, 1997
16
EXHIBIT A
Drawings List
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 2 of 2
3. Preliminary/schematic drawings prepared by Martin/Martin Consulting
Engineers, Wheat Ridge, Colorado.
C1.1 Main Street Site Plan Undated - Received October 20, 1997
C2.1 Main Street Overall Grading Plan "
C2.2 Main Street Grading Plan "
C2.3 Main Street Grading Plan "
C3.1 Main Street Overall Utility Plan "
C3.2 Main Suva Utility Plan "
C3.3 Main Street Utility Plan "
C4.1 Main Street Plan/Profile "
C4.2 Main Street Plan/Profile "
C5.1 Main Street Drainage Plans "
C5.2 Main Street - Erosion Control Plans Undated - Received October 20, 1997
4. Soil Mitigation Plan, dated October 1997, prepared by Stewart Environmental
Consultants, Inc., Ft. Collins, Colorado.
Letter describing construction dewatering plan, dated October 22, 1997,
prepared by Groundwater Specialists, Boulder, Colorado.
6. Request for Proposal, dated August 19, 1997, prepared by Melick Associates,
Denver, Colorado.
7. The budget assumes that the project will be designed and built under the
1991 UBC.
17
EXHIBIT B
Supplementary Contract Terms to the AIA Document A111 Agreement
Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction Co.
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 1 of 9
These Supplementary Contract Terms modify, change, delete from, or add to those
terms set forth in the "Standard Form of Agreement Between Owner and Contractor,
AIA Document A111, Tenth Edition, 1987, and shall supersede such
Owner/Contractor Agreement to the extent inconsistent or in conflict therewith.
Where any Article, Paragraph, Subparagraph or Clause of the Owner/Contractor
Agreement is modified or deleted by these Supplementary Contract Terms, the
unaltered provisions of that Article, Paragraph, Subparagraph or Clause shall
remain in effect:
o Paragraph 2.2, add the following new paragraph:
"2.2 The Guaranteed maximum Price may be arrived at on the basis of the
Contractor preparing and submitting for the Owners approval certain value
engineering items. The Owner acknowledges that the value engineering
services provided by the Contractor are advisory in nature and are not
professional design services. Should incorporation of any value engineering
item into the drawings and specifications materially affect other aspects
of the work the Contractor will promptly notify the Owner in writing of the
impact and indicate if any adjustment in the Guaranteed Maximum Price or
further refinement of the drawings and specifications is anticipated.
"2.2.1 The Contractor agrees to provide consulting services as listed in
this Paragraph 2.2 to further the interests of the Owner by furnishing the
Contractor's skill and judgment in cooperation with, and in reliance upon,
the services of the Architect. The Contractor agrees to furnish business
administration and management services and to perform preconstruction
services in an expeditious and economical manner consistent with the
interests of the Owner."
"2.2.2 Provide cost evaluations of alternative materials and systems during
the construction period."
"2.2.3 Review designs during creation of construction drawings. Provide
recommendations with respect to minimizing the cost of the work on relative
feasibility of construction methods, availability of materials and labor,
time requirements for procurement, installation and construction, and
factors related to cost including, but not limited to, costs of alternative
designs or materials, preliminary budgets and possible economies."
"2.2.4 Provide for the Architects and the Owner's review and acceptance,
and monthly update, a project schedule that coordinates and integrates the
Contractor's services, the Architects services and the Owner's
responsibilities with the original construction schedule."
"2.2.5 Prepare a detailed cost breakdown of the Guaranteed Maximum Price
based on Design Development Documents prepared by the Architect. Update and
refine this cost breakdown periodically as the Architect prepares
Construction Documents."
18
EXHIBIT B
Supplementary Contract Terms to the AIA Document A111 Agreement
Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction Co.
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 2 of 9
"2.2.6 Review Construction Documents as they are being prepared and
recommend alternative solutions whenever design details affect construction
feasibility, or the design is likely to exceed the Project budget or
schedule. Make recommendations for corrective action"
"2.2.7 Advise on the method to be used for selecting Subcontractors and
awarding Subcontracts. Review the drawings and specifications and make
recommendations as required to provide that (1) the Work of Subcontractors
is coordinated, (2) the likelihood of jurisdictional disputes has been
minimized, and (3) proper coordination has been provided for phased
construction."
"2.2.8 Make recommendations for pre-qualification criteria for Subcontract
Bidders and develop Subcontract Bidders' interest in the Project. Establish
bidding schedules. Assist the Architect with the receipt of questions from
Subcontract Bidders, and with the issuance of Addenda."
"2.2.9 Assist in obtaining preconstruction building permits, approvals and
special permits."
"2.2.10 If requested, assist the Owner in selecting and retaining the
professional services of surveyors, special consultants and testing
laboratories. Coordinate their services."
o Paragraph 2.3, add the following new paragraph:
"The Work is clarified by Exhibit F, Contractor's Qualifications to the
Drawings and Specifications."
o Paragraph 4.2 is deleted and the following substituted:
"4.2 After the commencement date is fixed in a Notice to Proceed, the
Contractor shall prepare and issue within 10 days a construction schedule
for the Work. The schedule shall establish the time limits for the Work, to
be revised as required by the conditions of the Work and Project. The
Contractor shall achieve Substantial Completion of the entire Work not
later than (To be Determined by Change Order) calendar days from the actual
start of construction, subject to adjustments of this Contract Time as
provided in the Contract Documents. The data in Exhibit I, Weather Data,
shall be the basis for claims due to adverse weather."
o Paragraph 5.1 is deleted and the following substituted:
"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 Lump Sum Fee of $805,610.
5.1.2 For any changes to the scope of work, a Fee of 3.4% will be charged
for the sum of the Cost of the Work plus General Conditions costs
chargeable for the revision. Deductive Change Orders will be credited only
the Cost of the Work, there shall be no change in Contractor's Fee or
General Conditions for deleted items."
19
EXHIBIT B
Supplementary Contract Terms to the AIA Document A111 Agreement
Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction Co.
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 3 of 9
o Subparagraphs 7.1.1.1, 7.1.1.2, 7.1.1.3 and 7.1.1.4 are deleted and the
following substituted:
"7.1.1.1 Wages plus fringe benefit charges of construction workers directly
employed by the Contractor to perform the construction of the Work at the
site or at off-site workshops and to make deliveries or pickups for the
Project."
"7.1.1.2 The Contractor's supervisory and administrative personnel at the
following charging rates, no matter where stationed, with adjustments for
staff as assigned to the project:
Construction Manager $85.00/hour
Project Manager $65.00/hour
Chief Estimator $53.00/hour
Estimator $41.64/hour
Project Engineer #1 $43.00/hour
Project Engineer #2 $38.00/hour
Assistant Project Engineer $19.84/hour
Project Superintendent $2,200/week
Assistant Superintendent $1,310/week
Project Accountant $23.00/hour
Project Secretary/Coordinator $23.00/hour
Jobsite Secretary $15.00/hour
Safety Director Included in Contractor's Fee"
"7.1.1.3 Labor burden of 39% for FICA taxes, Workers Compensation Insurance
and unemployment contributions shall be added to costs in 7.1.1.1. Burden
has been included in the charging rates in Subparagraph 7.1.1.2."
o Subparagraph 7.1.2, is deleted and the following substituted:
"7.1.2 SUBCONTRACT COSTS
Payments made by the Contractor to Subcontractors in accordance with the
requirements of the subcontracts and the costs of subcontractor bonds
required by the Owner or Contractor. For the purposes of this Subparagraph,
Subcontractors and subcontracts shall include engineering consultants
engaged by the Contractor or Subcontractor."
o Subparagraph 7.1.4.2, is revised by deleting the last sentence and
inserting in lieu thereof, the following:
"Rental charges for equipment owned by the Contractor shall be as indicated
in Exhibit H, Contractor's Equipment Rental Rates The cost for providing
Small Tools, as defined in Exhibit G, Small Tools Defined, are included in
the Contractor's hourly labor rate for any self performed work."
20
EXHIBIT B
Supplementary Contract Terms to the AIA Document A111 Agreement
Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction Co.
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 4 of 9
o Subparagraph 7.1.4.4, is deleted and the following substituted:
"The costs of telegrams, fax, and long-distance calls; postage, delivery
and express charges; telephone service at the site; printing and copy
charges; petty cash expenses at the site; data processing and computer
usage charges at $1.70 per thousand dollars of the Guaranteed Maximum
Price; photography; computerized scheduling charges; office furniture,
equipment and supplies for the site office; and other similar expenses
related to the Work."
o Subparagraph 7.1.5.1, is deleted and the following substituted:
"7.1.5.1 That portion directly attributable to this Contract of premiums
for insurance and bonds. The Owner and Contractor agree to the following
stipulated rates of costs reimbursement: (i) Contractor's commercial
general liability insurance at the rate of $6.00 per thousand dollars of
the Guaranteed Maximum Price plus the cost of O.C.P. coverage, if required;
(ii) Contractor's Subguard insurance at the rate of $7.50 per thousand
dollars of subcontract sum; and (iii) Contractor's other insurance or
payment bond and performance bond, if required, at actual premium cost.
o Subparagraphs 7.1.6.2, and 7.1.6.3, add the following new subparagraphs:
"7.1.6.2 Utility fees, including but not limited to water, steam, gas, oil,
electricity, snow removal, weather protection, and temporary toilets;
protection and altering of public utilities; protection and repairs of
existing or adjoining property; rental property for storage of materials
and equipment or parking."
"7.1.6.3 That portion of Contractor's AGC dues based on the Contract Sum of
this Project."
o Paragraph 7.2.2, insert "employees, agents, or subcontractors..." in the
third sentence after "...Contractor's foreman..." and before "...engineers
or superintendents..."
o Paragraph 10.1, delete the last eight words of the second sentence, delete
third sentence and add:
"The Contractor shall review bids and proposed subcontract awards and
amendments in excess of $10,000 with the Owner prior to award. Additional
subcontracts (below $10,000) will also be reviewed if required by Owner's
lenders."
21
EXHIBIT B
Supplementary Contract Terms to the AIA Document A111 Agreement
Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction Co.
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 5 of 9
o Paragraph 10.4, add the following new paragraph:
"10.4 Major categories of trade work commonly subcontracted in the location
of the Project shall only be performed by Contractor's own personnel if
approved in advance in writing by the Owner. This paragraph shall not
prevent the Contractor from performing incidental trade work estimated at
less than $10,000 that due to the size or scope of the trade work does not
represent an attractive package for competitive subcontract bidding and
general conditions work with his own personnel."
o Paragraph 12.4, is revised by adding the following after the last sentence:
"The Contractor will present interim lien waivers from subcontractors and
major material suppliers as condition for payment. Samples of Interim Lien
Waivers, Final Lien Waivers and Contractors standard Purchase Order and
Subcontract forms have been included in Exhibit `J'."
o Subparagraph 12.7.6, add the following new subparagraph:
"12.7.6 Notwithstanding Paragraphs 12.7.1 and 12.7.2 above, at such times
as each portion of the Work as set forth in the schedule of values has been
fifty percent (50%) completed to the mutual satisfaction of Owner and
Contractor, Owner may cease further retainage from the progress payments
with respect to such portion of the Work."
o Subparagraph 12.7.7, add the following new subparagraph:
"12.7.7 Upon mutual agreement by Owner and Contractor, payment in full may
be made to those subcontractors whose Work is fully completed during the
early stages of the Project, or any retained amounts reduced with respect
to subcontractors at such times as the parties may mutually agree.
Agreement to any such reduction in retained amounts will not constitute a
waiver of or otherwise prejudice the Owner's right to subsequently
reinstate full retainage, as to that subcontractor, should circumstances
justify such action in the Owner's sole judgment."
o Paragraph 12.7.8, add the following new paragraph:
"12.7.8 The Contractor's Fee; general conditions costs; insurance charges,
bond costs, if any; taxes and costs of permits, fees, testing, inspections
and similar items, if paid by the Contractor, shall not be subject to
retainage."
22
EXHIBIT B
Supplementary Contract Terms to the AIA Document A111 Agreement
Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction Co.
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 6 of 9
o Paragraph 14.3, add the following new paragraphs:
"14.3.1 Owner and Architect are to be listed as `Additional Insured' for
all liability insurance policies purchased by the Contractor. Limits of
liability of insurance required to be carried by the Contractor shall be:"
"14.3.1.1 Workers Compensation: statutory limits, including employer's
liability limits $1,000,000 each accident, $1,000,000 disease policy limit,
$1,000,000 disease each employee."
"14.3.1.2 Comprehensive Public Liability including operations, premises,
products, completed operations, premises, products, completed operations,
independent contractors, contractual, personal injury, and broad form
property damage endorsement: limits $2,000,000 bodily injury and property
damage combined."
"14.3.1.3 Automobile Liability: including owned, hired and non-owned,
limits $1,000,000 bodily injury and property damage combined."
"14.3.1.4 Excess Liability Umbrella policy in the amount normally carried
by the Contractor, but in any event not less than $16,000,000 to cover all
items required to be covered under Subparagraphs 14.3.1.2 and 14.3.1.3."
"14.3.1.5 Thirty days written cancellation notice stating a firm 30 days'
written notice will be furnished to the holder of the certificate."
"14.3.1.6 XCU coverage (required from Subcontractors who have demolition,
excavation, shoring, underpinning, connection with existing utilities or
work in or adjacent to any buildings included in the scope of the Work) to
provide protection for explosion, collapse and underground damage
exposure."
"14.3.2 The Contractor will obtain for the duration of the construction
"builder's risk/all risk" insurance for the Work, with deductibles of
$1,000 for each occurrence, $25,000 for losses due to earthquakes or
$25,000 for losses due to flood. Any deductible amount paid by the
Contractor will be considered a Cost of the Work." The "builder's risk/all
risk" policy is to be presented to the Owner for approval."
"14.3.3 The Owner hereby designates John `Chip' Franzoi as its
representative, with authority to approve Modifications and other changes
in the Work. Such representative shall be available when needed during
working hours at the site of the Work and, in all cases, such
representative's signature shall be final and binding on the Owner."
"14.3.4 Notices required or desired to be made under this Agreement shall,
if mailed, be mailed to the party at the address set forth as follows:
23
EXHIBIT B
Supplementary Contract Terms to the AIA Document A111 Agreement
Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction Co.
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 7 of 9
Riviera Hotel and Casino Weitz-Cohen Construction Company
2901 Las Vegas Boulevard South 899 Logan Street, Suite 600
Las Vegas, NV 89109 Denver, CO 80203
Attention: John `Chip' Franzoi Attention: Gary Meggison
Vice President Construction Vice President
"14.3.5 The Owner and Contractor recognize that, in performing the Work
covered by the Contract Documents, property of the Owner and of the Owner's
separate contractors, including the Work, may be damaged or destroyed. The
loss in such case may or may not be within the coverage or may exceed the
limits of liability under any insurance carried by the Owner or others. It
is agreed by the parties hereto that notwithstanding anything contained in
the Contract Documents to the contrary, the Owner and the Owner's separate
contractors assume all risk of loss or damage to their interest in any and
all of their property and the use and occupancy thereof and hereby release
the Contractor and its agents, employees and Subcontractors ("Released
Parties") from all claims on account of loss or damage thereto, except to
the extent negligently or willfully caused by such released parties."
"14.3.6.1 The following scopes of work ("Design/Build Work") include design
services to be performed as part of this Agreement:
a) Mechanical Systems/HVAC, Plumbing and Temperature Controls
Design services to be performed by Southland Industries, Inc. will be
a Cost of the Work included in the Contract.
b) Fire Protection
Design services to be performed by Frontier Fire Protection, Inc. will
be a Cost of the Work included in the Contract.
c) Electrical Systems/Power, Lighting, Fire Detection and Miscellaneous
Systems
Design services to be performed by Riviera Electric, Inc. will be a
Cost of the Work included in the Contract.
d) Dewatering system and water treatment facility
Design services to be performed by IT Corporation, Inc. will be a Cost
of the Work included in the Contact.
24
EXHIBIT B
Supplementary Contract Terms to the AIA Document A111 Agreement
Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction Co.
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 8 of 9
e) Earth retention and shoring system
Design services to be performed by Coggins and Son, Inc. will be a
Cost of the Work included in the Contract.
14.3.6.2 The Design/Build Work subcontracts shall include:
a) The Subcontractor shall furnish a certificate of insurance to Owner,
which evidences the following minimal professional errors and omission
(or comparable) coverages:
Single Occurrence $1,000,000
Aggregate Limit $2,000,000
b) The Subcontractor shall agree to defend, indemnify and hold Owner
harmless from and against any design errors or omissions of the
Subcontractor and shall grant the Owner the right to pursue such
claims directly against the Subcontractor.
14.3.6.3 The Contractor agrees to administer performance of such
Design/Build Work design services, including (i) administration of the
Design/Build Work subcontracts in the normal course including payment
administration, and (ii) coordination of the Design/Build Work contract
documents prepared by its subcontractors, with the design services of the
Owner's design professionals, including site, architectural, structural,
civil and geotechnical.
14.3.6.4 Owner and Contractor agree to look solely to the Design/Build Work
subcontractors for any design errors or omissions arising out of their
Design/Build Work, and hereby release each other (but not the
subcontractor) therefrom.
14.3.7 The parties acknowledge that Owner may obtain financing for all or a
portion of the amounts payable under this Contract, and that the lender
providing such financing (the "Lender") may seek certain protections to
assure its ability to complete the Work and preserve the value of the
property upon which the Project is located in the event of a default by
Owner. The parties agree to negotiate modifications to this contract in
good faith as may be necessary to provide reasonable Lender protection,
including but not limited to: a) the assignment of this Contract and
subcontracts to Lender and assurances that (contingent upon the continued
performance by Lender under such contracts) Contractor and subcontractors
will continue to perform the Work following default by Owner and acceptance
of the contracts by Lender; b) agreements that Lender or its agents or
consultants may inspect the Work at any reasonable time upon the same terms
as can the Owner and/or Architect under the Contract Documents; c)
providing periodic reports to Lender regarding the percentage completion of
the Work, budgetary matters, payments to subcontractors or materialmen and
similar items; d) making Lender an additional insured under all policies of
insurance maintained by Contractor; or e) reasonable limitations upon the
recourse of Contractor or subcontractors against Lender for defaults by
Owner under the Contract Documents."
25
EXHIBIT B
Supplementary Contract Terms to the AIA Document A111 Agreement
Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction Co.
for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 9 of 9
END OF SUPPLEMENTARY CONTRACT TERMS
26
EXHIBIT C
Supplementary Conditions to the AIA Document A201 General Conditions
for the Agreement Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction
Co. for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 1 of 5
These Supplementary General Conditions modify, change, delete from or add to the
"General Conditions of the Contract For Construction," AIA Document A201,
Fourteenth Edition, 1987, and shall supersede the General Conditions to the
extent inconsistent or in conflict therewith. Where any Article of the General
Conditions is modified, or any Paragraph, Subparagraph or Clause thereof is
modified or deleted by these Supplementary General Conditions, the unaltered
provisions of that Article, Paragraph, Subparagraph or Clause shall remain in
effect:
o Subparagraph 2.4.1, is revised by changing "seven" in lines 3, 6 and 8 to
"three":
o Subparagraph 3.10.3, delete in its entirety.
o Subparagraph 4.2.1, is revised by deleting Item 1, `during construction"
and Item 2 `until final payment is due'.
o Subparagraph 4.5.8, add as a new subparagraph:
"4.5.8 Procedural Issues. The arbitration shall be held in Denver,
Colorado. Each party shall bear its own direct costs, including attorney's
fees, but general costs of the arbitration shall be shared by both parties
equally; provided, the arbitrator may choose to award the general costs of
arbitration against the losing party if the arbitrator determines that the
proposed resolution urged by the losing party was not reasonable.
Notwithstanding anything in the Contract Documents to the contrary, each
party shall be required to submit its proposed resolutions of each Claim to
the arbitrator, and the arbitrator shall be required to render a decision
adopting in full either one or the other of such proposed resolutions, and
no compromises or alternative resolutions shall be allowed or considered by
the arbitrator. Each party shall be entitled to full discovery and the
process, proceedings, practices and procedures provided for under the
Federal Rules of Civil Procedure in effect at the time notice of demand for
arbitration is filed. Either party may request the selection of up to 3
arbitrators."
27
EXHIBIT C
Supplementary Conditions to the AIA Document A201 General Conditions
for the Agreement Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction
Co. for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 2 of 5
o Subparagraph 4.5.9, add as a new subparagraph:
"4.5.9 Limitations on Arbitration. Notwithstanding anything in the Contract
Documents to the contrary, if the (1) Claims involve a proposed, net
aggregate payment or reimbursement in an amount greater than $500,000, or
(2) the Claims involve an interested person or entity (including the
Architect) who has not consented to be joined in the arbitration, then
arbitration shall apply only if both parties consent to arbitration. For
this purpose an "interested person or entity" means any person or entity if
(1) in such interested person or entity's absence, complete relief cannot
be accorded among those already parties, or (2) the interested person or
entity is so situated that the disposition of the Claim without the joinder
of such interested person or entity may leave any of those already parties
subject to a substantial risk of incurring double, multiple or otherwise
inconsistent obligations. If both parties do not consent to arbitration for
such Claim as described herein, then all requirements, conditions, and
conditions precedent pertaining to arbitration shall be deemed
appropriately adjusted to permit either party to pursue such Claims as
otherwise permitted by the Contract Documents or by law."
o Subparagraph 5.2.1, change "promptly" to "within 10 days" in lines 7 and
11.
o Subparagraph 7.3.4, add at the end.
"Notwithstanding the foregoing, if the evidence required by Subparagraph
2.2.1 indicates the Owner will not have sufficient funds to make timely
payment for the Construction Change Directive, the Contractor shall not be
required to proceed with the change in work."
o Subparagraph 8.2.2, delete the third sentence.
o Subparagraph 8.3.1, add at the end:
"Any delay caused by lack of permit or governmental approval, beyond
control of Contractor, shall be grounds for a time extension."
o Paragraph 9.3.1, is revised by adding "and Owner after "Architect" in the
second line.
o Subparagraph 9.3.1.2, insert "within thirty days" in the second sentence
after "...Contractor does not intend to pay..."
28
EXHIBIT C
Supplementary Conditions to the AIA Document A201 General Conditions
for the Agreement Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction
Co. for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 3 of 5
o Paragraph 9.3.3, is revised by adding the following sentence:
To the extent that the Owner has paid to Contractor all amounts then due and
payable from Owner to Contractor under the Contract Documents, Contractor shall
save and keep Owner, Owner's loan proceeds and Owner's property free from all
mechanics' liens and materialmen's liens and all other liens and claims, legal
or equitable, arising out of the Work performed by Contractor, its employees or
subcontractors on all tiers. If Owner has paid to Contractor amounts due on
account of work performed or materials provided by a claimant, Contractor shall
remove and discharge any lien, or obtain the release of any Notice to Disburser,
filed by such claimant within thirty days after the same was filed. Samples of
Interim Lien Waivers, Final Lien Waivers and Contractors standard Purchase Order
and Subcontract forms have been included in Exhibit `J'."
o Paragraph 9.6.1, is revised by adding the following at the end of the
Section:
"Notwithstanding the foregoing, if the Contractor is in breach under the
Contract Documents on the date on which the Owner receives the Certificate of
Payment from the Architect, or if the Owner otherwise disputes any amount shown
as due on the Certificate of Payment, the Owner may withhold from the payment
certified by the Architect the amount that the Owner reasonably deems necessary
to cure the Contractor's breach or the amount otherwise disputed, on the
condition that the Owner delivers written notice of the basis for such
withholding and pays to the Contractor all undisputed amounts shown as due on
the Certificate of Payment within the time provided in the Contract Documents
for the payment of progress payments to the Contractor. Except as provided in
Section 14.2.3, any amount so withheld shall promptly be paid over to Contractor
upon the cure of the breach or resolution of the dispute. Notwithstanding any
provision hereof to the contrary, Owner's withholding of payment to the
Contractor pursuant to the terms of this Section shall not be considered the
failure of Owner to pay any amounts certified for payment by the Architect or
constitute a default by Owner under the terms of this Contract"
o Subparagraph 9.7.1, is revised by changing "seven" in lines 2, 4 and 7 to
"three" and change line 6 as follows:
"tified by the Architect or awarded by arbitration, or if the Owner does not
promptly furnish evidence as required by Subparagraph 2.2.1, then the Con-."
o Subparagraphs 10.1.2 through 10.1.6, delete in its entirety and substitute
the following:
10.1.2 If reasonable precautions will be inadequate to prevent foreseeable
bodily injury or death to persons resulting from a material or substance,
including but not limited to asbestos or polychlorinated biphenyl (PCB),
encountered on the site by the Contractor, the Contractor shall, upon
recognizing the condition, immediately stop Work in the affected area and report
the condition to the Owner and Architect in writing.
29
EXHIBIT C
Supplementary Conditions to the AIA Document A201 General Conditions
for the Agreement Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction
Co. for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 4 of 5
10.1.3 The Owner shall obtain the services of a licensed laboratory to verify
the presence or absence of the material or substance reported by the Contractor
and, in the event such material or substance is found to be present, to verify
that it has been properly remediated. Unless otherwise required by the Contract
Documents, the Owner shall furnish in writing to the Contractor and Architect
the names and qualifications of persons or entities who are to perform tests
verifying the presence or absence of such material or substance or who are to
perform the task of removal or safe containment of such material or substance.
The Contractor and the Architect will promptly reply to the Owner in writing
stating whether or not either has reasonable objection to the persons or
entities proposed by the Owner. If either the Contractor or Architect has an
objection to a person or entity proposed by the Owner, the Owner shall propose
another whom the Contractor and the Architect have no reasonable objection. When
the material or substance has been reduced to acceptable limits, as determined
by local, state or federal regulations and by Owner's consultant, Work in the
affected area shall resume upon written agreement of the Owner and Contractor.
The Contract Time shall be extended appropriately and the Contract Sum shall be
increased in the amount of the Contractor's reasonable additional costs
shut-down, delay and start-up, which adjustments shall be accomplished as
provided in Article 7.
10.1.4 To the fullest extent permitted by law, the Owner shall indemnify and
hold harmless the Contractor, Subcontractors, Architect, Architect's consultants
and agents and employees of any of them from and against claims, damages, losses
and expenses, including but not limited to attorneys' fees, arising out of or
resulting from performance of the Work in the affected area if in fact the
material or substance presents the risk of bodily injury or death as described
in Subparagraph 10.1.2 and has not been properly remediated, provided that such
claim, damage, loss or expense is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property (other
than the Work itself) and provided that such damage, loss or expense is not due
to the sole negligence of a party seeking indemnity.
10.1.5 The Owner shall not be responsible under Paragraph 10.1.4 for materials
and substances brought to the site by the Contractor unless such materials or
substances were required by the Contract Documents.
10.1.6 If, without negligence or wilful misconduct on the part of the
Contractor, the Contractor is held liable for the cost of remediation of a
hazardous material or substance solely by reason of performing Work as required
by the Contract Documents, the Owner shall indemnify the Contractor for all cost
and expense thereby incurred. The obligations of the Owner as set forth in this
paragraph shall survive the termination of the Contract."
o Subparagraph 13.2.1, add at the end:
"Notwithstanding the foregoing, nothing contained in the this Section 13.2.1
shall prohibit or restrict Owner from assigning all or part of its interest
and/or rights under the Contract for the purpose of obtaining project financing
from a bank or other financing source and, accordingly, Contractor's consent
shall not be required for same."
30
EXHIBIT C
Supplementary Conditions to the AIA Document A201 General Conditions
for the Agreement Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction
Co. for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29,1997
Page 5 of 5
o Subparagraph 13.7, delete in its entirety.
o Subparagraph 14.2.1.1, is revised by deleting "persistently or
repeatedly..." and replacing with "on more than one occasion...":
o Subparagraph 14.2.1.3, is revised by deleting "persistently..." and
replacing with "on more than one occasion
o Subparagraph 14.3.4, add as a new subparagraph:
"14.3.4 The Owner may, at its option, terminate this Contract in whole or
abandon a part of the project by written notice thereof to the Contractor at any
time. Upon any such termination, Contractor agrees to waive any claims for
damages, including loss of anticipated profits, on account thereof, and as sole
right and remedy of Contractor, Owner shall pay Contractor in accordance with
(c) below.
The Provisions of the Contract, which by their nature survive final acceptance
of the Work, shall remain in full force and effect after termination to the
extent provided in such provisions.
a) Upon receipt of such notice, Contractor shall, unless the notice directs
otherwise, immediately discontinue the Work on that date and to the extent
specified in the notice; place no further orders or subcontracts for materials,
equipment, services, or facilities, except as may be necessary for completion
for such portion of the Work as is not discontinued; promptly make every
reasonable effort to procure cancellation upon terms satisfactory to Owner of
all orders and subcontracts to the extent they relate to the performance of the
discontinued portion of the Work and shall thereafter do only such work already
in progress and to protect materials, plants and equipment on the Site or in
transit thereto.
b) Upon such termination, the obligation of the Contract shall continue as to
portions of the Work already performed and as to bona fide obligations assumed
by Contractor prior to date of termination.
c) Upon termination, Contractor shall be entitled to be paid the full cost of
all Work property done by the Contractor to the date of termination not
previously paid for, less sums already received by Contractor on account of the
portion of the Work performed. If at the date of such termination Contractor has
property prepared or fabricated off the Site any goods for subsequent
incorporation in the Work, and if Contractor delivers such goods to the Site or
to such other place as the Owner shall reasonably direct, then Contractor shall
be paid for such goods or materials. Contractor shall also be paid a prorated
portion of the Contractor's Fee based upon percentage completion of the Work as
of the date of termination, minus prior payments to Contractor.
END OF SUPPLEMENTARY GENERAL CONDITIONS
31
EXHIBIT C
Supplementary Conditions to the AIA Document A201 General Conditions
for the Agreement Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction
Co. for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29, 1997
Page 1 of 4
These Supplementary General Conditions modify, change, delete from or add to the
"General Conditions of the Contract For Construction," AIA Document A201,
Fourteenth Edition, 1987, and shall supersede the General Conditions to the
extent inconsistent or in conflict therewith. Where any Article of the General
Conditions is modified, or any Paragraph, Subparagraph or Clause thereof is
modified or deleted by these Supplementary General Conditions, the unaltered
provisions of that Article, Paragraph, Subparagraph or Clause shall remain in
effect:
o Subparagraph 2.2.1, add at the end:
"This contract is not binding on the Contractor until evidence of financial
arrangements satisfactory to the Contractor is delivered to the Contractor."
o Subparagraph 3.2.1, delete lines 7-15, beginning in line 7 after the term
"Contract Documents."
o Subparagraph 3.10.3, delete in its entirety.
o Subparagraph 4.5.8, add as a new subparagraph:
"4.5.8 Procedural Issues. The arbitration shall be held in Denver, Colorado.
Each party shall bear its own direct costs, including attorney's fees, but
general costs of the arbitration shall be shared by both parties equally;
provided, the arbitrator may choose to award the general costs of arbitration
against. the losing party if the arbitrator determines that the proposed
resolution urged by the losing party was not reasonable. Notwithstanding
anything in the Contract Documents to the contrary, each party shall be required
to submit its proposed resolutions of each Claim to the arbitrator, and the
arbitrator shall be required to render a decision adopting in full either one or
the other of such proposed resolutions, and no compromises or alternative
resolutions shall be allowed or considered by the arbitrator. Each party shall
be entitled to full discovery and the process, proceedings, practices and
procedures provided for under the Federal Rules of Civil Procedure in effect at
the time notice of demand for arbitration is filed. Either party may request the
selection of up to 3 arbitrators."
32
EXHIBIT C
Supplementary Conditions to the AIA Document A201 General Conditions
for the Agreement Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction
Co. for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29, 1997
Page 2 of 4
o Subparagraph 4.5.9, add as a new subparagraph:
"4.5.9 Limitations on Arbitration. Notwithstanding anything in the Contract
Documents to the contrary, if the (1) Claims involve a proposed, net aggregate
payment or reimbursement in an amount greater than $500,000, or (2) the Claims
involve an interested person or entity (including the Architect) who has not
consented to be joined in the arbitration, then arbitration shall apply only if
both parties consent to arbitration. For this purpose an "interested person or
entity" means any person or entity if (1) in such interested person or entity's
absence, complete relief cannot be accorded among those already parties, or (2)
the interested person or entity is so situated that the disposition of the Claim
without the joinder of such interested person or entity may leave any of those
already parties subject to a substantial risk of incurring double, multiple or
otherwise inconsistent obligations. If both parties do not consent to
arbitration for such Claims as described herein, then all requirements,
conditions, and conditions precedent pertaining to arbitration shall be deemed
appropriately adjusted to permit either party to pursue such Claims as otherwise
permitted by the Contract Documents or by law."
o Subparagraph 5.2.1, change "promptly" to "within 10 days" in lines 7 and
11.
o Subparagraph 7.3.4, add at the end:
"Notwithstanding the foregoing, if the evidence required by Subparagraph 2.2.1
indicates the Owner will not have sufficient funds to make timely payment for
the Construction Change Directive, the Contractor shall not be required to
proceed with the change in work."
o Subparagraph 8.2.2, delete the third sentence.
o Subparagraph 8.3.1, add at the end:
"Any delay caused by lack of permit or governmental approval shall be grounds
for a time extension."
o Subparagraph 9.3.1.2, delete in its entirety.
o Subparagraph 9.7.1, is revised by changing "seven" in lines 2, 4 and 7 to
"three" and change line 6 as follows:
"tified by the Architect or awarded by arbitration, or if the Owner does not
promptly furnish evidence as required by Subparagraph 2.2.1, then the Con-."
33
EXHIBIT C
Supplementary Conditions to the AIA Document A201 General Conditions
for the Agreement Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction
Co. for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29, 1997
Page 3 of 4
o Subparagraphs 10.1.2 through 10.1.4, delete in its entirety and substitute
the following:
10.1.2 If reasonable precautions will be inadequate to prevent foreseeable
bodily injury or death to persons resulting from a material or substance,
including but not limited to asbestos or polychlorinated biphenyl (PCB),
encountered on the site by the Contractor, the Contractor shall, upon
recognizing the condition, immediately stop Work in the affected area and report
the condition to the Owner and Architect in writing.
10.1.3 The Owner shall obtain the services of a licensed laboratory to verify
the presence or absence of the material or substance reported by the Contractor
and, in the event such material or substance is found to be present, to verify
that it has been rendered harmless. Unless otherwise required by the Contract
Documents, the Owner shall furnish into the Contractor and Architect the names
and qualifications of persons or entities who are to performing tests verifying
the presence or absence of such material or substance or who are to perform the
task of removal or safe, containment material or substance. The Contractor and
the Architect will promptly reply to the Owner in writing stating whether or not
either has reasonable objection to the persons or entities proposed by the
Owner. If either the Contract or Architect has an objection to a person or
entity proposed by the Owner, the Owner shall propose another whom the
Contractor and the Architect have no reasonable objection. When the material or
substance has been rendered harmless, Work in the affected area shall resume
upon written agreement of the Owner and Contractor. The Contract Time shall be
extended appropriately and the Contract Sum shall be increased in the amount of
the Contractor's reasonable additional costs of shut-down, delay and start-up,
which adjustments shall be accomplished as provided in Article 7.
10.1.4 To the fullest extent permitted by law, the Owner shall indemnify and
hold harmless the Contractor, Subcontractors, Architect, Architect's consultants
and agents and employees of any of them from and against claims, damages, losses
and expenses, including but not limited to attorneys' fees, arising out of or
resulting from performance of the Work in the affected area if in fact the
material or substance presents the risk of bodily injury or death as described
in Subparagraph 10.1.2 and has not been rendered harmless, provided that such
claim, damage, loss or expense is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property (other
than the Work itself) and provided that such damage, loss or expense is not due
to the sole negligence of a party seeking indemnity.
10.1.5 The Owner shall not be responsible under Paragraph 10.1.4 for materials
and substances brought to the site by the Contractor unless such materials or
substances were required by the Contract Documents.
10.1.6 If, without negligence on the part of the Contractor, the Contractor is
held liable for the cost of remediation of a hazardous material or substance
solely by reason of performing Work as required by the Contract Documents, the
Owner shall indemnify the Contractor for all cost and expense thereby incurred.
The obligations of the Owner as set forth in this paragraph shall survive the
termination of the Contract."
34
EXHIBIT C
Supplementary Conditions to the AIA Document A201 General Conditions
for the Agreement Between Riviera Black Hawk, Inc. and Weitz-Cohen Construction
Co. for the Riviera Black Hawk Casino project, Black Hawk, Colorado
Dated: December 29, 1997
Page 4 of 4
o Subparagraph 14.1.1, change line 5 as follows:
"of the Work under contract with the Contractor, or for any of the..."
END OF SUPPLEMENTARY GENERAL CONDITIONS
35
EXHIBIT D
Contractor's Project Schedule
for the Riviera Black Hawk Casino Project, Black Hawk, Colorado
Dated: December 29, 1997
Page 1 of 1
To be added by change order. Reference Exhibit "B", Paragraph 4.2 for procedures
establishing the commencement date and establishing a construction schedule for
the Work.
36
EXHIBIT E
Contractor's Project Schedule
for the Riviera Black Hawk Casino Project, Black Hawk, Colorado
Dated: December 29, 1997
Page 1 of 1
The Contractor's Project Budget of $24,500,000 has been established by the two
following documents:
Document E-1
o Weitz-Cohen `Schematic Estimate Summary', two pages and Weitz-Cohen
`Detailed Schematic Estimate', 19 pages, each dated October 28, 1997.
o Weitz-Cohen `Schematic Design Phase: Outline Specifications', 110 pages,
dated October 28, 1997
Document E-2
Weitz-Cohen `Value Engineering Options, 8 pages, dated December 29, 1997
37