CONTRACT
BETWEEN
ALADDIN GAMING, LLC ("OWNER")
AND
FLUOR DANIEL, INC. ("DESIGN/BUILDER")
FOR
DESIGN/BUILD SERVICES
This Contract made this 4th day of December, 1997 (Effective Date), by and
between Aladdin Gaming, LLC ("Owner"), a Nevada limited liability company with
offices at 2810 West Charleston Boulevard, Suite F-58, Las Vegas, Nevada 89102
and Fluor Daniel, Inc. ("Design/Builder"), a California corporation with offices
at 3335 Michelson Drive, Irvine, California 92698, may hereinafter be referred
to as "Contract" or "Agreement".
BACKGROUND
Owner desires to retain the services of Design/Builder to perform
pre-construction and design/build services pertaining to the demolition and
renovation of existing structures and construction of new structures and
associated infrastructure. Design/Builder desires to provide such services in
accordance with the terms and conditions set forth in this Contract.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other valuable consideration, the parties agree as follows:
ARTICLE 1
DEFINITIONS
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For the purpose of this Contract, the following terms shall have meanings
ascribed to them below:
1.1 "Design/Builder" - Design/Builder means Fluor Daniel, Inc.
1.2 "Drawings", "Specifications" and/or "Plans" shall mean all those
documents prepared by Design/Builder, approved by Owner and set forth in
Attachment E - including the final set of plans and specifications used for the
construction of the Project.
1.3 "Owner"- Owner means the Aladdin Gaming LLC or its successor or
permitted assign or Owner Representative as defined in paragraph 1.4 below.
1.4 "Owner Representative" - Owner Representative means Tishman Realty
and Construction Co. ("Tishman") or any other entity acting as on-site
representative of Owner designated by Owner in writing as the Owner
Representative for this Contract. In no event shall there be more than one
entity at a time designated as the Owner Representative.
1.5 "Project" - Project means the new Aladdin Hotel & Casino, the London
Clubs International facilities, parts of the retail shell and associated parking
facilities located in Clark County, Nevada and as further described and
illustrated in Attachments A and E.
1.6 "Architect of Record" or "Engineer" shall mean ADP/FD of Nevada,
Inc., a Nevada corporation and/or its successor in interest.
1.7 "Services" or "Work" shall mean all design, engineering,
pre-construction services, materials, equipment, components, and other items of
any nature covered by this Contract and to be provided or performed by
Design/Builder, its consultants and lower tier subcontractors, including
responsibilities and obligations relative to punch list items and warranty after
acceptance. "Services" will also include Article 3.1 herein.
1.8 "Contract Documents" consist of the Contract and all the Attachments
thereto, including all modifications made thereto.
1.9 "Consultants" shall mean all engineering and specialty consulting
firms retained by Design/Builder, the coordination and management of whom shall
be the responsibility of Design/Builder.
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1.10 "Lender" is the bank or other financial institution or entity
providing Owner with funds to pay for the Work.
Other defined terms shall be deemed to have the meaning ascribed to them in
General Conditions, Attachment D.
ARTICLE 2
CONTRACT ATTACHMENTS
This Contract shall include the following attachments:
Attachment A: Scope of Services
Attachment B: Invoicing Format
Attachment C : Lien Waiver (Partial and Final)
Attachment D: General Conditions
Attachment E: GMP/Baseline Design Development Documents
Attachment F: Progress Schedule
Attachment G: Payment
Attachment H: Incentive Bonus
Attachment I: Insurance
Attachment J: Tests Furnished By Design/Builder
Attachment K: Permit Responsibility Matrix
Attachment L: Design/Builder's Key Personnel
Attachment M: Consultants To Be Retained By Design/Builder
Attachment N: Bonds and Guarantee
Attachment O: Subcontractor Bid Package
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Attachment P: Letter of Credit
Attachment Q: Construction Site Logistics and Staging Plan
In the event this Contract and/or its Attachments contain any
inconsistency, such inconsistencies shall be resolved by giving precedence in
the following order:
- the Contract (Articles 1-27)
- Attachment D: General Conditions
- Attachment E: GMP/Baseline Design Development Documents
- Attachment A: Scope of Services
- Other Attachments and Documents
provided, however, that to the extent any of the Attachments expand upon the
rights and obligations of the parties set forth herein, such provisions shall be
deemed to be consistent with this Contract, yielding the broadest interpretation
of the Contract.
ARTICLE 3
SCOPE OF SERVICES
3.1 DESIGN/BUILD SERVICES. The scope of the Design/Build Services
(hereinafter referred to as "Services" or "Work") will be as set forth in the
Attachments including, without limitation, Attachment A, D and E. The Services,
whether performed by Design/Builder or its subcontractors, shall be performed by
qualified design professionals, construction contractors and suppliers, licensed
as required by law, selected and paid by Design/Builder. Nothing in this Article
3 shall create any professional obligation or contractual relationship between
such persons and Owner.
3.2 Owner shall pay for the Phased Design And Construction Plan Review
Fee (as defined in the Clark County Building Code - 1997), off-site impact fees,
water/sewer tap fees, zoning variances and other government approval fees
necessary for the Project; however, Design/Builder shall be responsible for
preparing all the necessary paperwork, supporting data and revisions required
for government permitting and approval. Design/Builder shall be responsible for
ensuring that all the design and
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construction related paperwork, supporting data and revisions required for
government permitting and approval is timely furnished to Owner to allow
commencement of construction of the Project and completion of the Project in
accordance with this Contract. Notwithstanding the above, Design/Builder is not
accountable for paperwork that can only be furnished by Owner.
3.3 Subject to Subsection 2.9.10 of the General Conditions, Attachment
D, the Owner Representative shall participate with Design/Builder in the
negotiation of all subcontracts and purchase orders for the Work and Services to
be performed and all said subcontracts and purchase orders shall be let subject
to the written approval (said approval shall be made within five (5) days from
receipt of Design/Builder's written recommendation) of Owner or the Owner
Representative.
ARTICLE 4
COST OF THE SERVICES
4.1 GUARANTEED MAXIMUM PRICE. Design/Builder shall be paid on a
Guaranteed Maximum Price ("GMP") basis as described in Attachment G. Subject to
additions and deductions which may be made in accordance with the Contract
Documents, Design/Builder agrees that the total costs payable by Owner for the
Work described in Attachments A and E shall not exceed a Guaranteed Maximum
Price of Two Hundred Sixty-Seven Million Dollars ($267,000,000.00), as set
forth in Attachment G. Design/Builder agrees to honor the GMP provided that the
Notice to Proceed is received on or before February 1, 1998. In the event that
the Notice to Proceed is not received on or before February 1, 1998,
Design/Builder reserves the right to revise the GMP. In the event that the
Notice to Proceed is not received on or before March 1, 1998, Design/Builder may
terminate this Contract without any further obligation.
4.2 The Design/Builder's General Conditions Costs shall not exceed the
lump sum amount of Sixteen Million Five Hundred Eighty-Eight Thousand Two
Hundred Fifteen Dollars ($16,588,215.00) and shall consist of those costs
described in Section 3 of Attachment G and more specifically set forth in
Appendix 1 attached thereto. Design/Builder acknowledges and agrees to notify
the Owner Representative if any General Conditions Costs are reallocated to a
trade subcontract.
4.3 DESIGN/BUILDER'S RESPONSIBILITY FOR TAXES AND FEES. Only those
taxes and fees directly attributable to the Work are allowable costs pursuant to
the provisions of Attachment G. It is expressly understood that the Guaranteed
Maximum Price includes all federal, state and local taxes, duties, excise taxes,
personal taxes on equipment and property owned by Design/Builder, and income
taxes including, without
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limitation, the following state and local taxes: Sales and Use Taxes, Initial
and Annual Corporate Filing Fees, Business Privilege Tax, Realty and Tangible
Personal Property Taxes (on property owned by Design/Builder), Contractors'
Licenses and Occupational Taxes, Local License Taxes, Unemployment Insurance
Taxes, and Motor Carrier and Fuel Taxes. The payment of all other taxes are
Owner's responsibility.
ARTICLE 5
PERFORMANCE/PAYMENT BONDS/CORPORATE GUARANTEE
5.1 Design/Builder, in lieu of furnishing full performance and payment
bonds, shall provide a creditworthy corporate guarantee from its parent the
Fluor Corporation. The guarantee must be acceptable to Lender and it shall
cover all of Design/Builder's obligations under this Contract. The guarantee
shall be in the form as set forth in Attachment N(3).
5.2 Performance and payment bonds (issued by a surety listed in the
Treasury Department listing published in the Federal Register, licensed in the
State of Nevada and rated by the A.M. Best Company as "A" or better) are
required from each of Design/Builder's Subcontractors; however, upon the
parties's mutual consent, a Subcontractor may provide a creditworthy corporate
guarantee in lieu of furnishing said bonds. Performance and payment Bonds shall
be in the form as set forth in Attachment N(1) and N(2).
ARTICLE 6
CHANGES IN SERVICES
6.1 RIGHT TO MAKE CHANGES. Owner may make changes in the Services in
accordance with Section 18.0 of the General Conditions, Attachment D.
ARTICLE 7
INSURANCE
7.1 The parties have elected to implement a Controlled Insurance Program
("CIP") whereby Owner shall reimburse Design/Builder for all associated premiums
and costs which will provide General Liability (including Contractual
Liability), Workers'
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Compensation, Excess Liability, Builders Risk and Transit coverages for
Design/Builder and all Subcontractors of any tier. The terms and conditions of
the CIP are set forth in Attachment I annexed hereto. Design/Builder
acknowledges that, unless otherwise specified, each policy it procures must: 1)
identify Owner as a Named Insured, 2) identify Tishman Realty & Construction
Co., Inc. and the Owner's lender(s) as Additional Insured(s), 3) identify
Aladdin Bazaar, LLC as Additional Insured and 4) must contain full waivers of
subrogation.
ARTICLE 8
INDEMNIFICATION
8.1 Design/Builder shall indemnify Owner in accordance with the terms
and provisions set forth in Section 12.0 of the General Conditions, Attachment
D.
ARTICLE 9
OBLIGATIONS
9.1 EXECUTION OF CONTRACT OBLIGATIONS. Design/Builder's execution of its
obligations as set forth under this Contract shall be subject to the approval of
Owner Representative; provided, however, such approval by Owner Representative
shall not relieve or discharge Design/Builder, either expressly or by
implication, from any responsibility under this Contract. Approval by the Owner
Representative shall not be unreasonably withheld. Design/Builder acknowledges
that approval by the Owner Representative shall not constitute a waiver of
Design/Builder's obligations to perform the Work and Services in accordance with
the requirements of the Contract.
9.2 Design/Builder acknowledges that a specified portion of the Work is
to be performed for the benefit of Aladdin/Bazaar, LLC, a Nevada limited
liability company. Said portion of the Work to be performed for the benefit of
Aladdin/Bazaar, LLC shall be known as the "Retail Shell" and is more
specifically defined in Attachment E, GMP/Baseline Development Documents.
Notwithstanding the above, Aladdin/Bazaar, LLC is not a third-party beneficiary
of this Agreement and its involvement in any meetings, negotiations or decisions
related to the Retail Shell or the overall Project shall not convey or be
construed to impart third-party beneficiary status. Design/Builder shall not be
obligated to take direction from Aladdin Bazaar, LLC; therefor all instructions
given in connection with the Retail Shell must issue from the Owner's
Representative.
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9.3 INQUIRIES. All inquiries Design/Builder may have concerning this
Contract shall be made to Owner or Owner Representative as provided herein or in
the General Conditions, Attachment D. If Design/Builder is in doubt as to whom
inquiry should be made, the inquiry shall be made to both Owner and Owner
Representative.
ARTICLE 10
TERMINATION
10.1 Owner may terminate this Contract in accordance with the General
Conditions, Attachment D. If Owner terminates this Contract after Services have
been undertaken by Design/Builder, compensation for work performed shall be as
per Sections 28.0 and 30.0 of the General Conditions, Attachment D.
ARTICLE 11
INVOICES
11.1 Design/Builder's monthly invoices shall be submitted to Owner for
approval in accordance with the provisions set forth in Section 31.0 of the
General Conditions, Attachment D.
11.2 Design/Builder's invoice shall:
11.2.1 Reflect the Schedule of Values for Work and Services
performed as submitted by Design/Builder and approved by Owner Representative
and any lender(s) representative(s), and shall:
11.2.2 Be sequentially numbered.
11.2.3 Be submitted to the attention of Owner Representative.
11.2.4 Be submitted in accordance with the format of Attachment B.
11.5.5 Reflect retainage in the amount as provided for elsewhere in
the Contract Documents.
11.2.6 Be submitted on the 25th day of each month.
11.2.7 Be accompanied by other supporting documentation as may be
reasonably requested by Owner Representative.
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11.2.8 Each invoice submitted by Design/Builder shall be
accompanied by a copy of Attachment C - Lien Waiver executed in accordance with
the laws of the State of Nevada.
ARTICLE 12
PAYMENT
12.1 Payment shall be governed by the terms of the Attachments,
including, without limitations, Section 31.0 of the General Conditions,
Attachment D.
ARTICLE 13
LIEN WAIVER
13.1 Acceptance by Design/Builder of any payment from Owner for any
invoice submitted shall constitute a lien waiver by Design/Builder for any and
all work performed and materials supplied to the extent that such costs were
included in that submitted invoice and Design/Builder shall provide written
release waivers (Attachment C) with respect to such costs and materials.
ARTICLE 14
COMPLETION DATE
14.1 SUBSTANTIAL COMPLETION. Design/Builder agrees to cause the
Substantial Completion of the Work (as defined in subsection 31.8 of the General
Conditions, Attachment D) on or before 790 calendar days from either January 12,
1998 or the date Notice to Proceed is received from Owner - whichever is later.
Said period shall be known as the Contract Time and may only be adjusted in
accordance with this Agreement.
14.2 TIME. Time limits stated in this Contract are of the essence.
Design/Builder's failure to achieve Substantial Completion within the Contract
Time specified in Article 14.1 shall be governed by the provisions of Article
14.3 below.
14.3 COMPENSATION FOR EARLY/LATE COMPLETION. In lieu of Owner procuring,
at Design/Builder's cost, a liquidated damages insurance policy or a business
interruption
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insurance policy to compensate Owner for late completion of the Work, the
parties agree as follows: Owner shall pay Design/Builder Two Million Dollars
($2,000,000.00) as a Bonus Advance upon the issuance of the Notice to Proceed.
Design/Builder may, at its option, use the Bonus Advance to purchase liquidated
damages insurance or it may elect to self-insure. In either event,
Design/Builder shall be entitled to keep the Bonus Advance as a bonus if the
Project is Substantially Complete within the Contract Time.
As a further bonus, Design/Builder shall be entitled to receive one hundred
thousand dollars ($100,000.00) for each day, up to but not to exceed ninety (90)
days, that the Project is Substantially Completed in advance of the Contract
Time.
If Design/Builder fails to achieve Substantial Completion of the Project
within the Contract Time, Design/Builder must pay back the Two Million Dollars
($2,000,000.00) Bonus Advance to Owner because Design/Builder will have failed
to earn these bonus monies and further Design/Builder shall pay Owner, as
liquidated damages and not as a penalty, one hundred thousand dollars
($100,000.00) per day commencing upon the first day following expiration of the
Contract Time and continuing up to ninety (90) days thereafter. The parties
agree that such liquidated damages are a reasonable estimate of damages Owner
will incur as a result of delayed completion of the Work inasmuch as it is not
possible to ascertain in advance the actual damages which Owner may incur as a
result of the delayed Substantial Completion of the Work.
Owner may deduct liquidated damages as described above from any unpaid
amounts then or thereafter due to Design/Builder under this Agreement. Any
liquidated damages not so deducted from any unpaid amounts due Design/Builder
shall be payable immediately to Owner upon Owner's demand.
The parties agree that Design/Builder's payment of these liquidated damages
and the return of the Bonus Advance shall be Owner's sole and exclusive remedy
for Design/Builder's failure to achieve Substantial Completion within the
Contract Time.
The terms Substantial Completion and Substantially Complete as used herein
shall have the same meaning.
The bonuses referred to in this Article are not included in the GMP.
ARTICLE 15
SUBCONTRACTORS AND SUB-SUBCONTRACTORS
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15.1 Design/Builder hereby warrants that it is licensed and qualified to
act in the capacity of a contractor and an architect/engineer as of the date
hereof and that it will contract with all Subcontractors (as hereinafter
defined) as are necessary to complete the Work and Services hereunder, and
further agrees to timely pay all such Subcontractors in accordance with payments
received for same from Owner.
15.2 All Subcontractors of any tier of Design/Builder (hereinafter
referred to collectively as Subcontractors) shall be the exclusive
responsibility of Design/Builder. However, before a Subcontractor begins work
under the terms of this Contract, Design/Builder shall warrant and produce all
relevant documentation to demonstrate that the Subcontractor has furnished all
insurance documents required under the provisions of Attachment D and Attachment
I necessary to comply with the CIP.
ARTICLE 16
PRIVITY OF CONTRACT
16.1 Owner shall have no contractual obligation to Subcontractors and
shall communicate with such Subcontractors only through Design/Builder.
Design/Builder shall include in all its subcontracts a provision which
acknowledges that there is no privity of contract with Owner by reason of the
subcontract. However, Owner, or any Lender providing Owner financing on any
portion of the Project may contact any Subcontractor directly if Design/Builder
is in default hereunder or under any other agreement between Owner and
Design/Builder. Design/Builder shall provide in all its subcontracts that if
Design/Builder is in default under the Contract, that the subcontract (plus any
related performance and/or payment bonds), at Owner's option, shall be deemed
assigned to Owner or Owner's designee, and the Subcontractor shall continue to
perform its work for Owner pursuant to the terms of the subcontract. The term
"subcontract" used in this Article shall also refer to all purchase orders,
vendor agreements and professional service agreements with Design/Builder or
Design/Builder's Subcontractors. Furthermore, Design/Builder hereby agrees to
perform its Work at the Project for Lender if Owner has been declared in default
under any loan agreement with such Lender, as long as Design/Builder is paid in
accordance with the Contract and Lender agrees to be bound by the terms and
conditions of this Agreement.
ARTICLE 17
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HAZARDOUS MATERIALS
17.1 Pre-Existing Contamination. Anything herein to the contrary
notwithstanding, title to, ownership of and legal responsibility for all
pre-existing contamination shall remain with Owner. "Pre-existing
contamination" is defined as and limited to all hazardous or toxic substances
that were not introduced to the Jobsite or negligently disturbed by
Design/Builder.
17.2 If Owner has such knowledge, Owner shall advise Design/Builder of
the existence of hazardous or toxic substances on the Project site and Owner
shall undertake the abatement and disposal of such material which shall include,
but not be limited to, asbestos. In the event Design/Builder encounters
pre-existing on-site materials or construction reasonably believed to be
hazardous or health threatening, then Design/Builder shall notify Owner and stop
work until an environmental laboratory properly certified by the applicable
State Health or equivalent agency and an environmental engineering consulting
firm, both retained directly by Owner, verifies that the materials or
construction complained of has been removed or rendered harmless. Until such
time Design/Builder shall not be obligated to commence or continue to work in
that area of the Project suspected to contain hazardous or health threatening
materials under Change Orders or directives issued by Owner and Design/Builder
shall be entitled to an equitable adjustment in the Contract Time and reasonable
delay related costs.
17.3 Design/Builder shall comply with all applicable environmental laws
in the performance of the Work.
17.3.1 All solid and liquid wastes, hazardous substances, and
hazardous materials used by Design/Builder (including but not limited to all
solvents, cleaners, waste oils, and trash) shall be handled and/or disposed of
in full compliance with all applicable federal, state and local statutes,
regulations, ordinances and rules.
17.3.2 As soon as the Work is completed, Design/Builder shall clear
the premises of all debris, waste, and equipment of every kind and nature
remaining from the Work and shall haul all materials belonging to Owner to local
storage or the nearest on site shipping point as directed by Owner.
ARTICLE 18
TAX EXEMPTION
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Owner shall, if applicable, execute, provide and deliver to Design/Builder,
any and all documents required of Design/Builder by the taxing authorities with
jurisdiction over this Project to demonstrate any claimed, full or partial, tax
exemption (i.e., IDA Resolution, Tax Exemption Certificate, Certificate of
Capital Improvement or the like).
ARTICLE 19
LAWS
19.1 The Project is located and this Contract is entered into in Clark
County, Nevada. Design/Builder shall comply with all laws, statutes,
ordinances, rules and regulations of all applicable governmental entities and,
to the fullest extent permitted by law, Design/Builder shall indemnify and hold
Owner harmless from any fines, penalties, costs, or liability arising from the
failure of Design/Builder or Design/Builder's Subcontractors to comply
therewith. Design/Builder warrants that it is duly authorized to do business in
the State of Nevada, that it has the knowledge and capability and is fully
licensed to act as Design/Builder under the terms of this Contract and that it
will evidence said authorization and capability to Owner upon request.
19.2 This Agreement shall be governed and interpreted in accordance with
the laws of the State of Nevada without any reference to conflict of laws
principles.
ARTICLE 20
PARTIAL VALIDITY
20.1 In the event that any portion of this Contract is held to be
unlawful or unenforceable as a matter of law, the balance of the Contract shall
remain in full force and effect and will be binding upon the parties. In the
event of a continuing breach or default on the part of either party, the failure
of the other party to insist upon the strict performance of the terms and
conditions hereof shall not be construed as a waiver.
ARTICLE 21
EFFECTIVE DATE
21.1 This Contract shall take full force and effect on the date shown on
page 1 ("Effective Date") and all Attachments and documents shall be referenced
as of that date for purposes of determining their meaning and effect. The GMP is
established on the basis of Plans, Drawings, Specifications, General Conditions
and all other Contract
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Documents identified or referred to herein. Changes after the Effective Date of
this Contract shall be made only as provided by this Contract. Any Work
commenced and any payments made pursuant to an award, letter of intent, or any
preliminary agreement shall be deemed to have been completed and paid after the
Effective Date and under the terms of this Contract.
21.2 Design/Builder acknowledges receipt from Owner of payments in the
total sum of Three Million Forty-Four Thousand Eight Hundred Thirty Nine Dollars
($3,044,839.00) ("Advance Payments") which were made prior to the Effective Date
and the parties agree that the Advance Payments are to be credited in their full
amount as payments made to Design/Builder for its Fee as described in Attachment
G.
ARTICLE 22
CONSEQUENTIAL DAMAGES
22.1 Neither party hereto shall be liable to the other for any indirect,
incidental or consequential damages of any nature whatsoever, except as
otherwise provided in Section 12.0 of the General Conditions, Attachment D.
ARTICLE 23
REPRESENTATIONS AND REMEDIES
23.1 Owner and Design/Builder make no representations, covenants,
warranties or guaranties, express or implied, other than those of good faith and
fair dealing or expressly set forth in the Contract Documents. The parties'
rights, liabilities, and limitations on liabilities, responsibilities and
remedies hereunder shall be exclusively those expressly set forth in the
Contract Documents and shall apply even in the event of default or termination,
the negligence, or strict liability of the party indemnified or released or
whose liability is limited or assumed or against whom rights of subrogation are
waived, shall survive the default and/or termination of Design/Builder and shall
be enforceable and extend to the parties, their respective officers, directors,
employees, agents and related entities.
ARTICLE 24
WARRANTY/GUARANTEE OBLIGATIONS
24.1 All warranties/guarantees referred to in this Article shall apply
solely to
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construction related services rendered by Design/Builder, its Subcontractors and
Vendors. The provisions of this Article shall not be interpreted or construed
to limit responsibility for any design related service rendered by
Design/Builder. All design Services performed by Design/Builder shall be free
of negligent errors and omissions and must comply with the highest customary and
applicable standards of professional care and the failure to meet these
standards shall be governed in accordance with prevailing law.
24.2 All warranties/guarantees and undertakings by Design/Builder in
favor of Owner shall apply to all materials, equipment or Services as
applicable, provided by either Design/Builder, its Subcontractors of any tier,
Vendors, or anyone directly or indirectly employed by any of them, to the same
extent as if provided by Design/Builder on a direct basis. Design/Builder's
guarantee and/or warranty obligations shall be as follows:
a. Design/Builder guarantees that its construction workmanship
shall be in conformance with good construction practices applicable to projects
of this type, that all work shall be done by skilled persons and performed in
the best workmanlike manner and that such Work shall be in full compliance with
the requirements of the Contract Documents and in compliance with all applicable
laws, codes and regulations.
b. Design/Builder further guarantees that all materials, equipment
and supplies incorporated into the Work shall be new, of the best quality of the
kind specified in accordance with industry standards, and shall be fit for its
intended purpose. At the time specified in "d" below, Design/Builder agrees to
pass on and assign to Owner, all Subcontractor, Vendor and manufacturer's
guarantees and warranties and to prosecute the enforcement thereof in
cooperation with Owner at Design/Builder's cost and expense during the one (1)
year period after Substantial Completion as defined in Subsection 31.8.1 of the
General Conditions, Attachment D.
c. Design/Builder warrants that (i) Design/Builder and its
Subcontractors are experienced, qualified and, where required by law, licensed
to perform their respective portions of the Work; (ii) the design of the Work
will be in accordance with all agreed upon Project requirements, and all
applicable federal, state, local codes, rules ordinances and regulations.
Owner's review and approval of drawings or other submittals shall not relieve or
discharge Design/Builder either expressly or by implication from any
responsibility under this provision.
d. Design/Builder's construction warranties and/or guarantees as
set forth in this Article shall extend for one (1) year after the date of
Substantial Completion. Design/Builder shall assign all Subcontract, Vendor and
manufacturers warranties
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and/or guarantees still surviving and in effect one (1) year after Substantial
Completion.
e. Upon receipt of written notice of defect(s) by Owner at any
time during the Warranty/Guarantee Period, Design/Builder shall, at no cost to
Owner, promptly furnish and provide all labor, equipment, materials and other
services at the Jobsite and elsewhere as may be necessary to correct such
defect(s) whether they be latent or patent and cause the Work to fully conform
with the foregoing warranties and/or guarantees. In performing such corrective
work, Design/Builder shall perform its Work so as to cause the least
inconvenience to Owner's business which may require performance of Work at hours
when Owner's business is least active. Design/Builder shall not be entitled to
the extra costs, if any, incurred in connection with performing corrective Work
at non-business hours.
f. In the event Design/Builder fails to correct any warranty
and/or guarantee defect, or fails to promptly commence correction to Owner's
reasonable satisfaction, within thirty (30) calendar days of receipt of Owner's
written notice, Owner shall have the right without any further notice to correct
or arrange for the correction of such defects at Design/Builder's sole risk and
expense.
g. Owner may, in its sole discretion, elect to accept a part of
the Work which is not in accordance with the requirements of the Contract
Documents. In such case, the GMP shall be reduced as appropriate and equitable.
Owner's acceptance of any nonconforming Work shall not waive or otherwise effect
Owner's right to demand that Design/Builder correct any other defects or areas
of nonconforming Work.
h. Warranty and/or Guarantee Exclusions and other Remedies:
(i) Design/Builder's warranty and/or guarantee obligations
shall exclude damages or defects caused by modifications to the Work directed by
Owner and not performed by Design/Builder or its Subcontractors.
(ii) Design/Builder's warranty obligation shall not apply to
damages or defects caused by ordinary wear and tear, insufficient maintenance,
improper operation or improper use by Owner.
ARTICLE 25
ENTIRE CONTRACT
25.1 This Contract and the above listed Attachments constitute the entire
and
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integrated agreement between Owner and Design/Builder and supersede all prior
negotiations, statements, representations, agreements, letters of intent,
awards, or proposals, either written or oral unless incorporated herein by
specific reference. This Contract may be modified only by a written instrument
signed by both Owner and Design/Builder.
25.1.1 In the event a dispute arises out of or in connection with
the meaning of the language set forth in this Agreement or any of the
Attachments hereto, the parties covenant and agree that neither party shall, in
an effort to establish the intent of the parties or to interpret the aforesaid
Contract Documents, be permitted to introduce any prior drafts, notes or
memoranda generated in connection with the contract negotiations leading up the
execution of this Agreement.
25.2 The parties agree to look solely to each other with respect to
performance of this Contract and the Services hereunder. This Contract and each
and every provision hereof is for the exclusive benefit of Owner and
Design/Builder and not for the benefit of any third party, except to the extent
such benefits have been expressly extended pursuant to this Contract.
25.3 The provisions of this Contract which, by their nature, are intended
to survive the termination, cancellation, completion or expiration of the
Contract, including, but not limited to, any indemnifications, express
limitations of or releases from liability, warranties and guarantees all of
which shall continue as valid and enforceable obligations of parties,
notwithstanding any such termination, cancellation, completion or expiration.
25.4 Headings and titles of Articles, Sections, Paragraphs and other
sub-parts of this Contract are for convenience of reference only and shall not
be considered in interpreting the text of this Contract.
ARTICLE 26
ASSIGNMENT
26.1 By reason of the special experience and unique nature of the
services to be rendered by Design/Builder under the Contract, Design/Builder
shall not assign its interest, or any part thereof, in this Contract unless such
assignment is consented to by Owner in writing, which consent may be refused for
any reason or no reason whatsoever, even if it be considered unreasonable. Any
purported assignment by Design/Builder without such consent shall be null and
void. Owner may, upon notice
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and without consent of Design/Builder, assign this Contract to one or more
lenders providing financing for the Project, including, without limitation, the
lender(s) providing financing to Owner and, to the extent this Agreement
pertains to the Retail Shell, to the lender(s) providing financing to Aladdin
Bazaar, LLC for the design/construction of the Retail Shell, or to any entity
which acquires all or substantially all of Owner's interest in the Project.
Upon any assignment by Owner, Owner shall be released from all prospective
liability under the Agreement and the Attachments thereto. In the event of such
assignment by Owner, Design/Builder may request that Owner provide reasonable
evidence in writing that the assignee has adequate financing in place for the
purposes of completing the Project and that assignee has specifically agreed to
make payments due under this Contract.
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ARTICLE 27
NOTICES
27.1 All notices pertaining to this Contract shall be in writing and, if
to Owner, shall be sufficient when sent registered or certified mail or
nationally recognized overnight delivery service and telecopied (with oral
confirmation) to Owner at the following addresses:
Mr. Jack Sommer
Aladdin Gaming, LLC
Aladdin Management Corp.
2810 W. Charleston Blvd., Ste. F-58
Las Vegas, Nevada 89102
Telecopy Number: (702) 870-8733
Mr. Ronald Dictrow
Aladdin Gaming, LLC
280 Park Avenue, 38th Fl.
New York, New York 10017
Telecopy Number: (212) 661-0844
Mr. Robert Accardi
Tishman Construction Corp.
666 Fifth Avenue
New York, New York 10103
Telecopy Number: (212) 708-6750
With a copy to:
Peter Goetz, Esq.
Goetz, Fitzpatrick, Carbone, Eiseman, Finegan & Rubin, LLP
One Pennsylvania Plaza
New York, New York 10119
Telecopy Number: (212) 629-4013
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27.2 All notices pertaining to this Contract shall be in writing and, if
to Design/Builder, shall be sufficient when sent registered or certified mail or
nationally recognized overnight delivery service and telecopied (with oral
confirmation) to Design/Builder at the following addresses:
Robert A. McNamara
Fluor Daniel, Inc.
75 Newman Avenue
Rumford, Rhode Island 02916
Telecopy Number: (401) 438-7281
Larry Kessinger
Senior Project Director
Phoenix Plaza, 19th Floor
2929 N. Central Avenue
Phoenix, Arizona 85012
Telecopy Number: (602) 230-9760
With a copy to:
Curtis Culver, Esq.
Assistant General Counsel
Fluor Daniel, Inc.
One Fluor Daniel Drive
Sugarland, Texas 77478-3899
Telecopy Number: (281) 263-4093
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IN WITNESS WHEREOF, the parties hereto have executed this Contract, on the
day and year first written above.
OWNER:
ALADDIN GAMING, LLC, a Nevada Limited
Liability Company
By: ALADDIN GAMING CORP. a Nevada
Corporation, its Manager
By: /s/ Ronald Dictrow
--------------------------------
Name: Ronald Dictrow
--------------------------
Title: Executive Vice President/
Secretary
-------------------------
Date:
--------------------------
DESIGN/BUILDER:
FLUOR DANIEL, INC.
By: /s/ Robert McNamara
--------------------------------
Name: Robert McNamara
--------------------------
Title:
-------------------------
Date:
--------------------------
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