Exhibit 10.1
CONSTRUCTION MANAGEMENT
AGREEMENT
This Construction Management
Agreement is made and entered into effective as of July 14,
2005, by and between Seneca Construction Management Corporation
(“ Construction Manager ”) and Seneca
Territory Gaming Corporation (“ Owner
”).
WHEREAS, the parties desire to enter
into this agreement in order to set forth the terms, conditions and
procedures under which the Casino Hotel (hereinafter defined) will
be constructed;
NOW, THEREFORE, for and in
consideration of the premises and the mutual covenants and
agreements contained herein, the parties hereby stipulate and agree
as follows:
ARTICLE I.
DEFINITIONS
1.1
Specific Definitions
. The following capitalized
terms shall have the meanings ascribed to them in this
Section 1.1 .
“ Affiliate ”
means, with respect to any relevant Person, any other Person that
directly or indirectly controls, is controlled by or is under
common control with, the relevant Person. For purposes of this
definition, the term “control” (including its
derivatives and similar terms) means owning, directly or
indirectly, more than 25% of the voting interest in the relevant
Person.
“ Agreement ”
means this Construction Management Agreement (including any
exhibits, supplements and other attachments), as amended, restated,
supplemented or otherwise modified from time to time.
“ Bonus ” is
defined in Section 5.6 .
“ Business Day ”
means Monday through Friday of each week, except that a legal
holiday recognized as such by the government of the Seneca Nation
of Indians, the United States or the State of New York shall not be
regarded as a Business Day.
“ Casino Hotel ”
means the Allegany 220 room hotel and casino with approximately
2,000 slot machines, restaurants, night club(s), bar(s), health
club and spa, pool(s), retail space, associated back-of-house
support spaces and related site work, to be constructed in
Salamanca, New York as further described in
Schedule 1.
“ Change of Law ”
means the enactment, adoption, promulgation, issuance,
modification, revision, change, repeal or cancellation after the
date of this Agreement of or to any Law, that prevents Construction
Manager from performing its obligations under this
Agreement.
“ Change Order ”
is defined in Section 8.4 .
“ Completion ” is
defined in Section 9.3 .
“ Completion
Certificate ” shall have the meaning ascribed to it in
Section 9.3 .
“ Completion Date
” is defined in Section 9.3 .
“ Construction Manager
” is defined in the Preamble .
“ Construction Manager
Estimate ” is defined in Section 8.3
.
“ Contract Price
” is defined in Section 5.2 .
“ Contractor ”
means any Person, other than Construction Manager, performing all
or any portion of the Work, or performing any other services, or
providing goods, equipment, materials, supplies, or labor services
related to the Work, including contractors, subcontractors (and
every tier of subcontractors), vendors, suppliers, agents and
representatives of Construction Manager, whether hired by
Construction Manager or by another Person hired by Construction
Manager.
“ Costs ” means
all verifiable, direct, out-of-pocket costs incurred by
Construction Manager in performing the Work, but shall not include
any costs or expenses (i) for general or overhead expenses of
Construction Manager or (ii) that would not have been incurred
absent the bad faith, gross negligence, or willful misconduct of
Construction Manager or any Contactor.
“ Damages ” is
defined in Section 13.1(a) .
“ Data ” is
defined in Section 3.4 .
“ Day ” means a
period of twenty-four (24) consecutive hours beginning at
7:00 a.m., Central Time, or at such other hour as Construction
Manager and Owner mutually agree.
“ Defect ” means
any equipment, materials, tools, supplies, installation or other
work performed or provided by, or within the responsibility of
Construction Manager or any Contractors which (i) fails to
conform to the Scope of Work or is of improper or inferior
workmanship; (ii) could reasonably be expected to adversely
effect the design or operation of the Casino Hotel; or
(iii) otherwise fails to meet the warranties set forth in
Section 10.2 .
“ Delay Liquidated
Damages ” is defined in Section 6.2(a)
.
“ Event of Default
” or “ Default ” means the occurrence of
any of the following events, circumstances or conditions:
(i) the failure by either Party to perform or comply with any
material agreement, covenant, obligation or other provision
contained in this Agreement when such failure has not been remedied
(after delivery of written notice thereof) within ten
(10) Days; (ii) the entry of either Party into voluntary
or involuntary bankruptcy, receivership or similar protective
proceedings; or (iii) the inaccuracy or breach of any material
representation or warranty contained in Article X
.
“ Force Majeure ”
is defined in Section 12.1 .
“ Governmental
Authority ” means applicable tribal, national, state and
local governments and all agencies, authorities, departments,
instrumentalities, courts, corporations or the other subdivisions
of each having or claiming a regulatory interest in or jurisdiction
over the Casino Hotel, the Work or the Parties
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“ Guaranteed Completion
Date ” is defined in Section 6.1 .
“ Guaranteed Maximum
Price ” is defined in Section 5.2
.
“ Hazardous Materials
” shall mean any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, petroleum
products (including crude oil or any fraction thereof), defined or
regulated as such under any environmental Law.
“ Invoice ” is
defined in Section 5.3(a) .
“ Laws ” means
the laws, rules, regulations, decrees and orders of the United
States of America, the Indian Nation and all other governmental
bodies having relevant jurisdiction, whether such now exist or
hereafter come into effect.
“ Loss ” or
“ Losses ” means any actions, claims,
settlements, judgments, demands, liens, losses, damages, fines,
penalties, interest, costs, expenses (including, without
limitation, expenses attributable to the defense of any actions or
claims), attorneys’ fees and liabilities related to the
construction of the Casino Hotel ; provided, however, that
as between the Parties, the term Loss shall not include damages
which one Party has waived or released its right to seek from the
other Party pursuant to Article XIII .
“ Notice to Proceed
” is defined in Article IV .
“ Notice to Proceed
Date ” is defined in Article IV .
“ Owner ” is
defined in the Preamble .
“ Owner Directive
” is defined in Section 8.5 .
“ Owner Indemnified
Party ” is defined in Section 13.2(a)
.
“ Party ” and
“ Parties ” means, each of Owner and
Construction Manager, individually or collectively, as the context
may require.
“ Performance Security
” is defined in Article VII .
“ Person ” means
any individual or entity, including, without limitation, any
corporation, limited liability company, joint venture, joint stock
company, general or limited partnership, trust, agency,
association, organization, government authority (including any
agency or administrative group thereof) or other entity.
“ Progress Report
” is defined in Section 5.3(e) .
“ Property ”
means the areas designated by Owner for performance of the
Work
“ Repair ” (which
shall also mean “ Repairing ”) is defined in
Section 10.2(a) .
“ Retainage ” is
defined in Section 5.5 .
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“ Scope of Work ”
is set forth on Schedule 1 (as may be amended pursuant
to the terms of this Agreement).
“ Stated Rate ”
means an annual rate of interest (compounded monthly) equal to the
lesser of (i) the sum of the one year LIBOR rate quoted in the
Wall Street Journal (or, in its absence, a similar publication) on
the first Day of the applicable month plus one percent
(1%).
“ Warranty Period
” is defined in Section 10.4 .
“ Work ” is
defined in Section 2.2 .
ARTICLE II.
CONSTRUCTION MANAGEMENT SERVICES
2.1
Appointment as Construction
Manager . Subject to the
terms and conditions of this Agreement, Owner hereby appoints
Construction Manager to act hereunder as an independent contractor
to manage the construction of the Casino Hotel, and Construction
Manager hereby accepts such appointment and agrees to act pursuant
to the provisions of this Agreement. Construction Manager is an
independent contractor and agrees to maintain such status and
relationship. Neither Construction Manager nor any Manager
Indemnified Party shall be deemed to be the agents, representatives
or employees of Owner. Nothing herein is intended to, or
shall be deemed to, create a partnership, joint venture, agency or
other relationship creating fiduciary or quasi fiduciary duties or
similar duties and obligations or otherwise subject the Parties to
joint and several or vicarious liability or to impose any duty,
obligation or liability that would arise therefrom with respect to
either or both of the Parties.
2.2
Work to be Performed
. This Agreement is a turnkey
contract and Construction Manager’s obligation is to provide
Owner with the Casino Hotel complete and in full operating
condition, completed in every detail according to the Scope of Work
within the time and schedules designated herein and for the
purposes designated herein by Owner, and to do and furnish
everything necessary in connection therewith, all on a total, fixed
price basis as set forth herein. Without limiting the
generality of the foregoing, Construction Manager shall perform the
Work set forth on Schedule 1 (the “ Work
”).
2.3
Use of Contractors
.
(a)
Schedule 2
sets forth
certain items of the Work, and with respect to each such item of
Work, the Person(s) approved by Construction Manager and Owner to
perform such Work. Schedule 2 may not be modified
without the prior written consent of Owner, such consent not to be
unreasonably withheld. Construction Manager is prohibited
from subcontracting or assigning any of the Work, except as
approved by Owner and set forth on Schedule 2 .
Upon Owner’s request, Construction Manager shall cause a
qualified representative of any Contractor to meet with
Owner.
(b)
Approval by Owner
of any Contractor shall not relieve Construction Manager of any of
its obligations under this Agreement and Construction Manager
shall, at all times, be responsible for all of the Work, including
all Work set forth on Schedule 2 . All Work
performed by a Contractor shall be pursuant to an appropriate
written
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agreement between
Contractor and Construction Manager. All such Contractor
contracts entered into by Construction Manager for any portion of
the Work shall:
(i)
conform to and
require Contractor to perform in accordance with the requirements,
terms and conditions of this Agreement,
(ii)
be assignable to
Owners upon Owner’s written request,
(iii)
preserve and
protect the rights of Owner under this Agreement and with respect
to the Work to be performed,
(iv)
require
Contractor to provide and maintain adequate insurance consistent
its obligations related to this Agreement and the Work to be
performed, and
(v)
obligate
Contractor to execute a waiver and release with respect to any lien
rights for each payment received by the such Contractor for the
Work.
ARTICLE III.
GENERAL OBLIGATIONS OF CONSTRUCTION MANAGER
3.1
Standard of
Performance .
Construction Manager shall perform the Work and carry out its other
obligations hereunder, and shall require all of its employees,
Contractors, agents, materialmen and vendors furnishing labor,
materials or services in any way relating to this Agreement or
affecting the Casino Hotel to carry out their respective
responsibilities in accordance with (a) the terms of this
Agreement, (b) safe, sound, efficient, workmanlike,
economically prudent, and environmentally sound practices, and
(c) all Laws, permits and licenses applicable to the Casino
Hotel and the construction thereof.
3.2
Construction Manager’s
Employees, Consultants and Contractors . Construction Manager shall pay all expenses in
connection with employing, retaining and supervising other Persons
necessary or appropriate for the performance of the Work, including
compensation, salaries, wages, overhead and administrative expenses
incurred by Construction Manager, and as applicable, FICA and
Medicare taxes, workers’ compensation insurance, retirement
and insurance benefits and other such expenses. All services
performed or materials supplied by any Affiliate of Construction
Manager shall be performed or supplied at terms and rates that are
reasonably competitive with the terms and rates known to
Construction Manager to be prevailing in the industry at the time
for the area of operations.
3.3
Payments Pursuant to
Agreements . Construction
Manager shall promptly pay all undisputed amounts due and payable
to (a) all Contractors in accordance with the terms of
applicable Contractor contract and (b) any other third Party
providing goods or services in connection with the Work.
3.4
Ownership and Custody of and
Access to Data .
Notwithstanding anything in this Agreement to the contrary, Owner
shall be the sole and exclusive owner of all reports, filings,
agreements, instruments and other documents (collectively, “
Data ”), whether prepared by
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Construction Manager, Owner or any other Person,
including a Contractor, related to the Work and any such Data shall
be made available to Owner at Construction Manager’s office
during reasonable business hours on provision of reasonable notice.
Within a reasonable period of time after delivery of the Completion
Certificate, or immediately upon the termination of this Agreement,
Construction Manager shall deliver originals of all Data to
Owner.
3.5
Inspection and Rejection by
Owner . Owner, and its
designated representatives, shall have the right to inspect all
Work including, without limitation, testing, inspection, repairs,
construction, installation, removal of equipment, meetings or other
communications with any Person, or similar activities undertaken by
Construction Manager in connection with this Agreement. Owner
shall have the right to reject, or to direct Construction Manager
to reject, at any time, any such portion of the Work, including any
design, engineering, materials, equipment, installation, tools or
supplies, which in Owner’s reasonable judgment does not
conform to this Agreement, including the Work Scope, or which
contains Defects. Upon such rejection, Construction Manager shall
promptly remedy any condition identified by Owner as giving rise to
such rejection.
3.6
Disclosure to Owner
. Construction Manager shall
promptly notify Owner of any event, circumstance or condition known
to Construction Manager constituting or which reasonably could be
expected to constitute a material breach, violation of any Law, or
default of any other obligation of Owner of which Construction
Manager has knowledge. Construction Manager shall promptly notify
Owner of any significant circumstance, event, occurrence or
condition (whether then existing or, in Construction
Manager’s opinion, expected to exist in the near future),
including issues related to the acquisition (including eminent
domain proceedings) of rights of way and similar
matters.
3.7
Risk of Loss
. Until the earlier of the
Completion Date and the termination of this Agreement, Construction
Manager assumes risk of loss and full responsibility for the cost
of replacing or repairing the damage to the Casino Hotel and all
materials, equipment, spare parts, supplies and maintenance
equipment (including temporary materials, equipment and supplies)
which are purchased by Construction Manager or Owner for permanent
installation in, or for use during construction of; the Casino
Hotel. It is contemplated that all material, equipment and supplies
will be owned by Owner and purchased or furnished for Owner’s
account. Construction Manager shall assume such risk of loss and
full responsibility regardless of whether Owner has title to such
items under this Agreement (unless such loss or damage is a result
of the gross negligence or intentional misconduct of Owner or
Owner’s agents during such time as such agents are acting
under Owner’s control, in which case Owner shall be
responsible for the amount of any deductibles under applicable
insurance policies); provided, however that such deductibles
shall not exceed (a) $250,000.00 in respect of each claim for
earthquake or flood damage and (b) $250,000.00 in respect of
each other claim. Upon the earlier of the Completion Date and the
termination of this Agreement, risk of loss and responsibility
shall be assumed by Owner.
3.8
Construction Budget
. At least thirty (30) Days
prior to the date scheduled for the Notice to Proceed Date,
Construction Manager shall submit to Owner for Owner’s
approval a budget for the Work, which budget amount shall not
exceed the Guaranteed Maximum Price.
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ARTICLE IV.
COMMENCEMENT OF WORK
Owner shall issue to Construction
Manager a written notice instructing Construction Manager to
commence the Work (the “ Notice to Proceed
”). Upon receipt of the Notice to Proceed (the “
Notice to Proceed Date ”), Construction Manager
shall commence and continuously and diligently pursue and perform
the Work, in a manner and with adequate resources to ensure
compliance with the Guaranteed Completion Date, the Construction
Schedule set forth on Schedule 3 , and otherwise
in compliance with this Agreement.
ARTICLE V.
ACCOUNTING AND COMPENSATION
5.1
Accounting Records
. Construction Manager shall keep
complete and accurate records of all costs, expenses and
expenditures in connection with this Agreement. To the extent
necessary or appropriate to verify the amounts billed to Owner
pursuant to this Agreement, Owner or its designated
representatives, after five (5) Days’ prior written
notice to Construction Manager, shall have the right during normal
business hours to audit or examine, all books and records
maintained by Construction Manager relating to the construction of
the Casino Hotel. Such right shall include the right to meet with
Construction Manager’s internal auditors to discuss matters
relevant to the audit or examination. Owner shall have three
(3) years after the termination of this Agreement to initiate
an audit of Construction Manager’s records for any Work
performed or materials provided during the term of this
Agreement. Owner shall make every reasonable effort to
conduct audits in a manner which will result in a minimum of
inconvenience to Construction Manager.
5.2
Contract Price
. For the performance of the Work
during the term of this Agreement, Owner agrees to pay Construction
Manager, an amount equal to the Costs plus four percent (4%) (the
“ Contract Price ”); provided,
however, that the Contract Price may in no event exceed
$123,000,000.00 (the “ Guaranteed Maximum Price
”). The Contract Price will be Construction
Manager’s complete compensation for the Work whether the Work
are performed by Construction Manager’s personnel or by
Contractors.
5.3
Request for Payment
. No later than the tenth (10
th ) Day of each month, Construction Manager shall
submit to Owner a Request for Payment which shall
include:
(a)
an invoice for
the portion of the Contract Price incurred for the Work performed
during the previous month (or, if applicable, prior months in case
of third party invoices received during the previous month), if
any, prepared in a form reasonably acceptable to Owner and
supported by records evidencing the actual Costs incurred, minus
the Retainage (an “ Invoice ”);
(b)
a certification
that (i) such Request for Payment represents the amount to
which Construction Manager is entitled to pursuant to the terms of
this Agreement; and (ii) Construction Manager has paid all
amounts that are due and owing to the Contractors, subject only to
such disputed amounts as are specified by Construction Manager in
the Progress Report;
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(c)
a partial lien
waiver in the form of Exhibit A from Construction
Manager ;
(d)
a partial lien
waiver in the form of Exhibit B from each Contractor;
and
(e)
a progress report
(a “ Progress
Report ”) which shall be in
such form as may reasonably be requested by Owner, and which shall
include, without limitation:
(i)
a description of
the Work performed during the prior month;
(ii)
a description of
the Work to be performed during the next month and an estimate of
the Costs to be incurred in connection with such Work;
(iii)
a list of all
Change Orders approved as of the end of the prior
month;
(iv)
a discussion of
any problems encountered during the prior month and remedies
effected or planned; and
(v)
a description of
any payment or other disputes with any Contractors or Governmental
Authorities.
Additional Progress
Reports . Owner
shall be immediately notified upon, but no later than one
(1) Business Day from, Construction Manager’s knowledge
of any specific change from a previously issued Progress
Report.
5.4
Payments . Owner shall pay to Construction Manager the
full undisputed amount of each Invoice within thirty (30) Business
Days of receipt of each such Invoice. If Owner fails to make timely
payments of any Invoice amount, or portion thereof, then
Construction Manager shall be entitled to collect such unpaid
undisputed amount, together with interest at the Stated Rate on any
unpaid undisputed amount. If Owner’s failure to pay is a
result of a good faith dispute of any Invoice amount, then interest
will be payable only on the unpaid portion that is found or agreed
by the Parties to be ultimately due. Interest shall accrue on
unpaid amounts for the period beginning on the payment due date of
the applicable Invoice and ending upon payment of such amount
(together with the interest thereon). Payment and failure to object
to all or any portion of an Invoice amount shall not be construed
as an acceptance of defective Work or a waiver of any right under
this Agreement by Owner.
5.5
Retainage . To secure Construction Manager’s
performance of its obligations hereunder, the Company will withhold
an amount equal to ten percent (10%) of the Contract Price (the
“ Retainage ”) from each payment paid to
Construction Manager by Owner (other than the final payment).
In the event that amounts are due under this Agreement from
Construction Manager to Owner, and such amounts are not paid when
due, Owner shall have the right to withhold additional amounts from
Owner’s payments to Construction Manager equal to the amount
owing by Construction Manager.
5.6
Bonus . In the event the total Cost for
constructing the Casino Hotel under this Agreement is less than the
Guaranteed Maximum Price, Construction Manager shall be entitled to
a bonus equal to fifty percent (50%) of the difference between the
Guaranteed Maximum Price
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and the sum of: (a) all payments made to
Construction Manager under this Agreement, (b) any Buy-Down
Amounts paid by Construction Manager to Owner, and (c) any
payments to third parties that directly resulted from a
Construction Manager Event of Default (the “
Bonus ”).
5.7
Final Payment
. Upon completion of the Casino
Hotel, Construction Manager shall submit a final Request for
Payment which shall set forth all amounts due and remaining unpaid
to Construction Manager, including the Retainage and the Bonus, if
any, and such amounts shall be paid by Owner within ninety (90)
Business Days of Owner’s receipt of the final Request for
Payment.
5.8
Certain Conduct
. Notwithstanding any other
provision herein, Owner shall not be required to pay or reimburse
Construction Manager for (a) any additional costs and expenses
that would not have been incurred absent the bad faith, gross
negligence, or willful misconduct of Construction Manager or
(b) claims for non-payment of any and all contributions,
withholding deductions or taxes measured by the wages, salaries or
compensation paid to Persons employed by Construction Manager in
connection herewith.
5.9
Taxes . Construction Manager shall pay and be
responsible for all taxes of any kind, including sales, use,
excise, unemployment, income taxes and any and all other taxes on
any item or service that is part of the Work, whether such tax is
normally included in the price of such item or service or is
normally stated separately and any other taxes imposed by any
Governmental Authorities on any equipment, materials, labor and
services furnished by Construction Manager or its Contractors, or
otherwise arising out of Construction Manager’s performance
of the Work, including any increases in any such taxes during the
term of this Agreement; and any duties, fees, and royalties imposed
with respect to any equipment, materials, labor or
services.
ARTICLE VI.
GUARANTEES AND DELAY LIQUIDATED DAMAGES
6.1
Guarantee . Construction Manager guarantees that it shall
achieve Completion not later than November 1, 2006, as such
guaranteed date may be adjusted pursuant to this Agreement (the
“ Guaranteed Completion Date
”).
6.2
Liquidated Damages for
Delay .
(a)
Construction
Manager understands that if Completion is not achieved by the
Guaranteed Completion Date, Owner will suffer substantial
damages. Therefor