Change Order No. 11 to Agmt for Guarantee Maximum Price Construction Services



 Exhibit 10.2 
 AGREEMENT FOR GUARANTEED MAXIMUM PRICE 
 CONSTRUCTION SERVICES 
 CHANGE ORDER 
 7 June 2006

  

			
	 Project: Wynn Las Vegas
	  	Change Order No.: 11
		
	“Contractor”:	  	“Owner”:
	MARNELL CORRAO ASSOCIATES, INC.	  	WYNN LAS VEGAS, LLC
	222 Via Marnell Way	  	3131 Las Vegas Boulevard So.
	Las Vegas, Nevada 89119	  	Las Vegas, Nevada 89109

 That certain Agreement for Guaranteed Maximum Price Construction Services between Owner and
Contractor for Wynn Las Vegas (“Project”) dated as of June 4, 2002 (“Contract”) is hereby modified as follows: 
  

	1.	DEFINITIONS. 

  

	  	Initial capitalized terms not otherwise defined in this Change Order shall have the meanings attributed to such terms in the Contract. 

  

	2.	SCOPE OF WORK 

  

	  	As provided in Section 15.1.1 of the Contract, the Owner, at its sole expense, implemented an Owner Controlled Insurance Program (OCIP) to furnish certain insurance coverages
with respect to the on-Site activities of the Contractor and Subcontractors. The OCIP was established for the benefit of the Owner and Contractor and Subcontractors of all tiers who have performed Work on-Site. 

  

	  	The original Guaranteed Maximum Price in the Contract reflected a credit of $18,000,000.00, based upon the parties’ best efforts to estimate the construction cost savings to be
realized as a result of the Owner’s furnishing of the insurance coverages provided under the OCIP. Based on Change Orders No. 4 & 5, the amount of the credit for projected savings for the OCIP was increased from $18,000,000 to
$19,867,980. 

  

	  	Section 15.1.3 of the Contract provides that at the end of the Project, prior to Final Payment, the Guaranteed Maximum Price will be adjusted as a result of any variance
between the actual savings amount and projected savings established by the foregoing credit amount, pursuant to an OCIP audit. 









	  	Section 12.2.1.16 of the Contract requires that as a condition to Final Payment and Final Completion, an OCIP audit be prepared and reasonably approved by Owner which reflects
the actual savings amount from the OCIP. 

  

	  	Contractor having achieved Final Completion for all Work areas covered by the OCIP, an OCIP audit was conducted by the OCIP Administrator and Contractor and Owner have agreed upon
the results of the OCIP audit. Owner and Contractor agree that based upon the OCIP audit, the actual savings amount for the OCIP is $24,236,418. 

  

	  	The following is a summary level recap of the results of the OCIP Audit: 

  

						
	 Project
	  	Job Number	  	Total MCA
OCIP Deduction	 
	 Master Plan
	  	100-00-000	  	19,316	 
	 Highrise
	  	100-01-000	  	7,075,375	 
	 Lowrise Master Plan
	  	100-02-000	  	571,989	 
	 Area 1
	  	100-02-100	  	2,518,466	 
	 Area 2
	  	100-02-200	  	3,439,092	 
	 Area 3
	  	100-02-300	  	3,457,128	 
	 Area 4
	  	100-02-400	  	2,815,733	 
	 Area 6
	  	100-02-500	  	369,471	 
	 Aqua Theater
	  	100-03-000	  	1,165,330	 
	 Site Improvements
	  	100-06-000	  	749,829	 
	 Lake Feature
	  	100-07-000	  	1,660,271	 
	 Villas
	  	100-08-000	  	932,917	 
	 Fairway Suites
	  	100-09-000	  	432,220	 
	 Fairway Villas Expansion
	  	120-03-000	  	497,583	 
	 Showroom #1
	  	120-05-000	  	531,699	 
		  		  	 	 
	 Revised MCA OCIP Deduction
	  		  	26,236,418	 
	 Mutually Agreed Upon Credit Adjustments
	  		  	(2,000,000	)
		  		  	 	 
	 Total MCA OCIP Deduction
	  		  	24,236,418	 
		  		  	 	 
	 Credits Taken:
	  		  		
	 Original Contract
	  		  	18,000,000	 
	 Change Order #4 – Showroom Addition
	  		  	581,507	 
	 Change Order #5 – Lake/Mountain
	  		  	1,286,473	 
		  		  	 	 
	 Total OCIP Credits
	  		  	19,867,980	 
		  		  	 	 
	 GMP Credit / Final OCIP Adjustment
	  		  	4,368,438	 
		  		  	 	 

  

 - 2 - 









	  	Accordingly, pursuant to Section 15.1.3 of the Contract, and the procedures outlined in Section E of the OCIP Manual attached as Exhibit P to the Contract, the
Guaranteed Maximum Price is to be adjusted to reflect the variance between the actual savings amount of the OCIP ($24,236,418) as determined by the OCIP audit, and the projected savings established by the total OCIP credit amount ($19,867,980)
provided for in the Guaranteed Maximum Price based on the original Contract as increased by Change Orders No. 4 & 5, by applying such variance ($4,368,438) as a further credit to the Guaranteed Maximum Price, thereby reducing the Guaranteed
Maximum Price to account for the OCIP variance. 

  

	3.	DECREASE TO GUARANTEED MAXIMUM PRICE 

  

	  	The GMP set forth in Section 3.1 of the Contract is by this Change Order hereby decreased, by $4,368,438 (equaling the amount of the variance in the OCIP credit), from
$1,133,479,322 to $1,129,110,884 as detailed in Paragraph 2 above. From and after the date of this Change Order, any and all references in the Contract Documents to the “Guaranteed Maximum Price” shall mean the amount
of $1,129,110,884. 

  

	  	Owner and Contractor agree, acknowledge and accept the results of the OCIP audit as set forth in Paragraph 2 above, and the application of the variance and the adjustment to
the Guaranteed Maximum Price as set forth in this Paragraph 3, as full and complete satisfaction of the OCIP Audit and the requirements of Sections 12.2.1.16 and 15.1.3 of the Contract. 

  

	4.	RETAINAGE. 

  

	  	As of the date of this Change Order, Owner is holding as Retainage, the total amount of $1,207,550 (“Retainage Amount”). The Retainage Amount shall be released pursuant to
the terms of the Contract. 

  

	5.	PROJECT SCHEDULE 

  

	  	As of the date hereof the Guaranteed Date of Substantial Completion for the Project which is defined as 27 April 2005 has been achieved by the Contractor. The Phase I Primary
Contractor’s Completion Certificate was executed and delivered to the Owner and Owner’s Lenders on 30 September 2005. 

  

	6.	RELEASE 

  

	  	In consideration of Owner’s entering into this Change Order and agreeing to the $2,000,000 Credit Adjustment set forth above in the OCIP credit calculation, and as a condition
precedent to such Credit Adjustment, effective as of the date of this Change Order, Contractor, on behalf of itself and its successors, assigns, officers, members, managers, affiliates, agents, representatives, past and present, from and hereby
fully and completely waives, any and all claims with respect to (i) OCIP and insurance audits as set forth in this Change Order, (ii) the monthly Applications for Progress Payment previously paid by Owner. 

  

 - 3 - 









	  	In consideration of Contractor’s entering into this Change Order, subject to delivery of the release of the Notice of Lien pursuant to Paragraph 7, and effective as of the date
of this Change Order, Owner hereby fully and completely waives any and all claims with respect to (i) OCIP and insurance audits, and (ii) the monthly job cost audits on the Applications for Progress Payment submitted by Contractor.


  

	  	Owner acknowledges that as of the date of this Change Order, and subject to Contractor’s performance of its obligations and covenants under this Change Order and the Contract,
Owner is not aware of any Claims held by Owner against Contractor under the Contract or at law or in equity, other than as to defective or non-complying work as to which Owner has already notified Contractor. 

  

	  	Contractor hereby agrees, represents and warrants that the matters released in this Change Order are limited to matters related to the OCIP and the monthly job cost audits on the
Applications for Progress Payment. Contractor’s releases and waivers in this Change Order shall be and remain in effect as a full and complete release of all OCIP and job cost audit matters. 

  

	7.	PAYMENT AND RELEASE OF LIEN 

  

	  	Contractor has recorded in Clark County, Nevada Recorder’s Book 20060406, as Instrument 0000368, a notice of lien against the Property (the “Notice of Lien”).
Concurrent with the execution of this Change Order, Contractor shall deliver to Owner a duly executed and acknowledged release of the Notice of Lien. 

  

	  	All future payments will be handled pursuant to the terms of the Contract. 

  

	8.	MISCELLANEOUS 

  

	  	In no event, except to the extent expressly set forth in this Change Order, shall this Change Order or any term, provision, condition or release herein contained, in any way be or
be construed to be a limitation on, or waiver or release of, any liability, responsibility or obligation of Contractor (or any party that provided any services or materials to the Site or Project for, through, under the supervision of or on behalf
of Contractor), directly or indirectly relating in any way to or arising out of or under the Contract and or any of the materials, services and/or Work performed by, through, under the supervision of or on behalf of Contractor on the Site and/or
Project. Further, except to the extent expressly set forth in this Change Order, nothing in this Change Order shall in any way impair, limit, modify, waive, release, or reduce Owner’s rights, including, but not limited to, warranty, audit
and/or setoff rights, under the Contract or any terms or conditions therein. 

  

	  	Except to the extent expressly set forth in this Change Order, nothing in this Change Order shall in any way impair, limit, modify, waive, release, or reduce Contractor’s
rights under the Contract or any terms or conditions therein. 

  

 - 4 - 









	  	This Change Order is effective as of June 7, 2006. The invalidity of any of the provisions, or any portion thereof, of this Change Order, shall not affect the remaining
provisions or remaining portion thereof, and the remainder shall be construed as if such invalid provision or portion thereof had not been included in this Change Order. 

  

									
	OWNER:	 		  	CONTRACTOR:
			
	 WYNN LAS VEGAS, LLC,
	 		  	 MARNELL CORRAO ASSOCIATES, INC.,

	 a Nevada limited liability company
	 		  	 a Nevada corporation

					
	     By:
	 	 /s/ Todd Nisbet
	 		  	 By:
	 	 /s/ Perry A. Eiman

	     Name:
	 	 Todd Nisbet
	 		  	 Name:
	 	 Perry A. Eiman

	     Title:
	 	 Assistant Secretary
	 		  	 Title:
	 	 President

				
		 		 		  	ARCHITECT:
				
		 		 		  	 BUTLER/ASHWORTH ARCHITECTS, LLC

					
		 		 		  	 By:
	 	 /s/ DeRuyter Butler

		 		 		  	 Name:
	 	 DeRuyter Butler

		 		 		  	 Title:
	 	 President


  

 - 5 -