Exhibit 10.13

DESIGN/BUILD AGREEMENT

        By and Between

WYNN LAS VEGAS, LLC,
a Nevada limited liability company
("Owner")

and

BOMEL CONSTRUCTION COMPANY, INC.,
a California corporation

("Contractor")

for

a Parking Structure to be located at
3131 Las Vegas Boulevard South,
Las Vegas, Nevada

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ii

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DESIGN BUILD AGREEMENT

        THIS DESIGN BUILD AGREEMENT (the "Agreement") is made effective as of June 6, 2002 (the "Effective Date"), by and between WYNN LAS VEGAS, LLC, a Nevada limited liability company ("Owner"), and BOMEL CONSTRUCTION COMPANY, INC., a California corporation, holding Nevada State Contractor's License No. 0031451 ("Contractor"), with respect to the following facts:

RECITALS

        A.    Owner owns the real property commonly known as 3131 Las Vegas Boulevard South, Las Vegas, Nevada, as more particularly described on Exhibit A attached hereto (the "Property").

        B.    Owner plans to construct on the Property a first class luxury resort and casino, including high-rise hotel space and low-rise space comprised of casino and gaming areas, restaurants, retail, convention and meeting areas, a showroom, and exterior features (the "Casino Improvements"). Owner will be retaining separate architects, contractors and consultants ("Other Builders") to design and construct the Casino Improvements on the Property.

        C.    In addition to the Casino Improvements, Owner desires to have constructed on a portion of the Property a state-of-the-art new parking structure, consisting of approximately 640,000 square feet of garage parking space and not less than 1,840 parking spaces with easy access to the Casino Improvements and associated improvements, including, without limitation, certain unfinished retail shell space (collectively, the "Project"), and desires to engage Contractor to design, construct, and supervise the construction of, the Project, in full accordance with the Contract Documents (as defined in Section 1.2 of this Agreement), including the Plans and Specifications (as defined in Section 1.2.2 of this Agreement), and Contractor desires to accept such engagement, upon the terms and conditions contained in this Agreement.

AGREEMENT

        NOW, THEREFORE, in consideration of the mutual covenants contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Contractor hereby adopt and incorporate the foregoing Recitals and agree as follows:

1.    CONTRACT DOCUMENTS AND GOVERNMENTAL REQUIREMENTS.

        1.1    Agreement Governs.    The intent of the Contract Documents is to include all items appropriate or necessary for the proper execution and Completion of the Work (as defined in Section 2.7.2 of this Agreement) by Contractor to Owner's satisfaction. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. Nothing contained in this Section 1.1 shall relieve Contractor of its obligations under this Agreement, including, without limitation, under Section 5.10 of this Agreement, or shall create a contractual or professional relationship between Owner and any person or entity other than Contractor. If any provision of the Contract Documents conflicts with any other provision of the Contract Documents, the provision requiring the highest degree of care or performance or the highest quality of materials, as the case may be, shall prevail, unless Contractor is otherwise instructed in writing by Owner. When only one product and manufacturer is specified, this is the basis of the Contract (as defined in Section 1.2.9 of this Agreement), unless substitution or exception is approved in writing by Owner.

        1.2    Contract Documents.    The "Contract Documents" consist of the following documents:

        1.2.1    This Agreement, including any exhibits and appendices thereto.

        1.2.2    The "Plans and Specifications" as approved by Owner and Owner's Lenders (as defined in Section 14.1 of this Agreement), including, without limitation, all architectural, structural, civil, mechanical, plumbing, electrical, grading, utility, security and low voltage

drawings and specifications, and all supplements, amendments and modifications thereto as approved by Owner and Owner's Lenders.

        1.2.3    The Project Design Criteria and Drawings (as defined in Section 5.2 of this Agreement), and attached hereto as Exhibit B.

        1.2.4    The Project Design and Construction Schedule (as defined in Section 4.2.1 of this Agreement), and attached hereto as Exhibit C.

        1.2.5    Any Submittals as defined in Section 5.12 of this Agreement.

        1.2.6    The Schedule of Values (as defined in Section 2.3.3 of this Agreement).

        1.2.7    The Technical Studies and Reports (as defined in Section 1.4.1 of this Agreement).

        1.2.8    The Permits and Entitlements as set forth on Exhibit D attached hereto.

        1.2.9    All supplements, addenda, modifications and amendments to any of the foregoing in this Section 1.2, from time to time approved by Owner in writing, including, without limitation, any executed Change Orders (as defined in Section 13.2 of this Agreement) and Construction Change Directives (as defined in Section 13.4 of this Agreement), and such other documents expressly referred to in the foregoing documents as being a part of the Contract Documents. These Contract Documents form the "Contract," and are as fully a part of the Contract as if attached to this Agreement or repeated in this Agreement.

        1.3    Design Services.    Contractor shall be responsible for procuring and furnishing all architectural and structural engineering services relating to the Project, and shall be responsible for coordinating, monitoring, managing and finalizing all other design services relating to the Project, including, without limitation, civil, structural, mechanical, plumbing, electrical, utility, security and low voltage engineering services (collectively, "Design Services"), by and through qualified and experienced design professionals duly licensed and registered in the State of Nevada and by any other required local or professional authorities and approved by Owner in advance (the "Project Architect"). Any reference to Project Architect shall include, without limitation, any architects and structural engineers and any other design professionals performing Work relating to the Project for Contractor. At the request of Owner, Contractor shall supply copies of Project Architect's licenses and registrations to Owner.

        1.3.1    Owner shall pay for the services of consultants selected by Owner to provide under the coordination of Contractor the civil, mechanical, plumbing, electrical, grading, utility, security and low voltage drawings and specifications for the Project. Provided, however, that any drawings, specifications, work or services or any other information or documents provided by Owner, directly or through consultants, to Contractor and Project Architect in connection with the Contract or the Work are provided solely for the convenience of Contractor only, and without any representation, warranty or guarantee of accuracy, adequacy, correctness or completeness by Owner, and Owner hereby expressly disclaims, on its behalf and on behalf of any of its consultants, all such warranties, guarantees and representations. Except to the extent the information, documents and materials supplied by Owner or its consultants contain inaccurate information that was not known to Contractor to be inaccurate (and such inaccuracy would not have been reasonably discovered by Contractor or Project Architect based on their skills, experience and knowledge or their diligent review of such information, documents and materials and the terms and scope of the Contract Documents), Contractor assumes the risk of such conditions and shall fully complete the Work within the Contract Sum (as defined in Section 2.1 of this Agreement) and by the Scheduled Completion Date (as defined in Section 4.2.1 of this Agreement) with no adjustments.

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        1.3.2    Contractor shall cause Project Architect to cooperate with Owner's consultants, to coordinate, monitor, and manage the services of such consultants and to take all necessary steps (other than payment of the fees of such consultants) to cause such consultants' drawings and specifications to be timely furnished, completed and finalized in accordance with the Project Design and Construction Schedule for incorporation by Project Architect into the Plans and Specifications. In furtherance of and without in any way limiting the foregoing, Contractor shall cause Project Architect to diligently review all work, services, drawings and specifications furnished by Owner's consultants for hazards, inconsistencies, discrepancies, inaccuracies, errors, incompleteness or lack of detail which should be apparent to Project Architect given Project Architect's skills, experience and training or discernible by Project Architect upon a reasonable and diligent review of such work, services, drawings, and specifications and shall cause Project Architect to promptly notify Owner and any of Owner's consultants in writing of any hazards, inconsistencies, discrepancies, inaccuracies, errors, incompleteness or lack of detail of which Project Architect becomes aware and, prior to proceeding with any of the Work affected thereby, to obtain written instructions from Owner on how to proceed. Contractor also shall cause Project Architect to promptly notify Owner and any of Owner's consultants in writing of any changes or revisions to Project Architect's work or services, including any drawings or specifications, which might affect the work, services, drawings and specifications of Owner or Owner's consultants.

        1.3.3    Project Architect shall (a) be the architect of record for the Project; (b) create and furnish the architectural and structural drawings and specifications for the Plans and Specifications; (c) be responsible for the final coordination, management and assembly of the Plans and Specifications, including the incorporation of the civil, mechanical, plumbing, electrical, grading, utility, security and low voltage drawings and specifications for the Project into the Plans and Specifications; (d) submit the Plans and Specifications to Owner and Owner's Lenders for their prior approval; (e) sign and affix with its registration stamp or seal that portion of the Plans and Specifications created by Project Architect, including the architectural and structural drawings and specifications (and any approved amendments, modifications and/or supplements thereto), and shall cause all other portions of the Plans and Specifications, including, the civil, mechanical, plumbing, electrical, grading, utility, security and low voltage drawings and specifications (and any approved amendments, modifications and/or supplements thereto), to be signed by and affixed with the appropriate registration stamps or seals of the applicable licensed consultants that created the same; (f) from time to time (as appropriate to meet the Project Design and Construction Schedule and the Scheduled Completion Date), submit for approval and obtain all necessary approvals for the Plans and Specifications (including any amendments, modifications and/or supplements thereto approved by Owner and Owner's Lenders) from the appropriate governmental authorities or other parties having approval rights relating to the Project; and (g) at all times perform the Work (as defined in Section 13.12 of this Agreement) and act with the normal and customary degree of care and skill used by members of the architectural and engineering professions practicing under similar conditions at the same time and locality and on projects of similar size, scope and complexity.

        1.3.4    In the event of the death, resignation, or refusal or inability to act of Project Architect, or if for any reason Project Architect is removed or is no longer acting as Project Architect for the Project, Contractor shall promptly designate in writing a replacement Project Architect who shall be a qualified and experienced design professional duly licensed and registered in the State of Nevada and by any other required local or professional authorities. Such written designation shall be effective only when delivered to and approved in writing by Owner.

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        1.4    Compliance with Contract Documents and Governmental Requirements.    

        1.4.1    Contractor shall, and shall cause all Subcontractors (as defined in Section 13.10 of this Agreement) to, construct and perform the Work in a good and workmanlike manner in strict compliance with (a) the Contract Documents, including, without limitation, the Plans and Specifications, and all things indicated thereon or which should be inferred therefrom given Contractor's status as a Contractor experienced with construction projects similar in size and complexity to the Work, and the Project Design and Construction Schedule, (b) all Governmental Requirements (as defined in Section 13.8 of this Agreement), and (c) the "Technical Studies and Reports" set forth on Exhibit E attached to this Agreement.

        1.4.2    Contractor represents to Owner that Contractor is thoroughly familiar with all Governmental Requirements. Governmental Requirements shall supersede the Contract Documents if there is any conflict; provided, however, that if any Governmental Requirement shall necessitate a change to or deviation from the Contract Documents, Contractor shall obtain Owner's written consent in the form of a Change Order prior to implementing such change. Contractor shall be responsible for failing to report to Owner any discrepancy between the Contract Documents and Governmental Requirements. If Contractor performs any part of the Work in violation of any such Governmental Requirements, Contractor shall bear all costs of correction and adverse scheduling impacts; provided, however, that should any governmental authority having jurisdiction over the Work mandate compliance with any changes to applicable Governmental Requirements that have been enacted or have become effective after the Effective Date, Contractor shall, subject to consultation with and written approval by Owner, construct the Work in accordance with such Governmental Requirements, the increased actual cost of which (if any) will be added to the Contract Sum pursuant to a Change Order under Article 3 of this Agreement, unless Contractor should have reasonably anticipated or planned for such change.

        1.4.3    Contractor shall furnish, perform and complete all Work required to complete the Project in accordance with the Contract Documents. Contractor shall be responsible for assembling all documentation necessary to obtain, and shall itself obtain or through Project Architect obtain, all permits and other approvals required to be obtained for the timely Completion of the Work from the appropriate governmental authorities or other parties having approval rights relating to the Project.

        2.    CONTRACT SUM; METHOD OF PAYMENT.    

        2.1    Contract Sum.    Subject to the terms and conditions of this Agreement, Owner shall pay to Contractor for Contractor's complete performance under the Contract, including, without limitation, the design, construction and completion of all Work for the Project, a lump sum total amount of Nine Million Eight Hundred Fifty Thousand Dollars and No Cents ($9,850,000.00) (the "Contract Sum"). Contractor is not and shall not be entitled to any fee, payment, compensation or reimbursement or other sum under this Agreement or the other Contract Documents or arising out of or relating to the Work or the Project, other than the Contract Sum. The Contract Sum may be adjusted only pursuant to Change Orders as provided for in Article 3 of this Agreement. As stipulated in the OCIP Manual (as defined in Section 10.1.2 of this Agreement), upon completion of the Work, the Contract Sum shall be adjusted downward to remove the cost of certain insurance, as determined pursuant to the OCIP Audit (as defined in Section 10.1.3 of this Agreement).

        2.2    Contractor Responsible for Expenditures in Excess of Contract Sum.    The Contract Sum is the maximum cost to Owner for the completion of the Project, including, without limitation, the full performance of all Work and all services by Contractor and its Subcontractors and Vendors (as defined in Section 13.11 of this Agreement). Contractor shall have sole responsibility to pay for any expenditures, costs and/or expenses in excess of the Contract Sum. If,

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at any point, Owner reasonably believes that, based on the progress of the Work, the Work cannot be completed for the Contract Sum, Owner shall have the right to require Contractor to provide Owner with satisfactory evidence of funds available to Contractor to pay any anticipated overage, and cause Contractor to provide Owner a perfected first priority lien on or security interest in such funds and execute such security agreements as may be required. Contractor's failure to timely provide such evidence of available funds and/or a perfected first lien, shall constitute a default pursuant to Section 8.1 of this Agreement.

        2.3    Payment Application.    

        2.3.1    Except for the retention or withholding specified below, or as otherwise expressly provided in this Agreement, the Contract Sum shall be paid over the course of the Project and in proportion to the Work completed during the applicable pay period, based on the percentage that such completed Work bears to the total Work provided for in the Schedule of Values (as defined in Section 2.3.3 of this Agreement) as reasonably determined by Owner. On or before the fifth (5^th) calendar day of each month during the term of this Agreement, Contractor shall deliver a statement to Owner and Owner's Lenders on AIA G701 and G702 forms or such other forms as are specified by and acceptable to Owner and Owner's Lenders ("Payment Application"), certified by Contractor as correct, and representative of the Work completed during the preceding calendar month. Contractor shall not submit more than one Payment Application per month unless otherwise requested by Owner. Each Payment Application shall specify:

        2.3.1.1    the Work performed during such preceding calendar month;

        2.3.1.2    the portion of the Contract Sum to be paid by Owner pursuant to the terms of this Agreement and the Schedule of Values;

        2.3.1.3    for each category and portion of the Work: (1) the amount requested on all previous Payment Applications, (2) the amount requested on the current Payment Application, and (3) the amount allocated in the Schedule of Values to the Work yet to be completed;

        2.3.1.4    Retainage (as defined in Section 2.3.7 of this Agreement) in the amount provided for pursuant to Section 2.3.7 of this Agreement;

        2.3.1.5    the percentage completed of each portion of the Work as of the end of the period covered by the Payment Application, shown as both (1) the percentage obtained by dividing the completed portions of the Work by the total Work referenced in the Schedule of Values, and (2) the percentage obtained by dividing (a) the sum of the payments made to Contractor pursuant to prior Payment Applications and the payment requested in the current Payment Application by (b) the Contract Sum; and

        2.3.1.6    such additional information and documentation regarding the progress of the Work and the requested payment under the Payment Application as Owner and/or Owner's Lenders may reasonably require.

        2.3.2    All blanks and columns in each Payment Application must be completed. The cost for any Design Services included in any Payment Application shall be shown as a separate item therein.

        2.3.3    "Schedule of Values" means the budget (as prepared by Contractor and submitted to and approved in writing by Owner) outlining the Work and allocating values among all portions or categories of the Work. The initial Schedule of Values shall be submitted by Contractor to Owner and Owner's Lenders for their prior written approval as a condition precedent to Contractor being paid under Contractor's first Payment Application. The

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Schedule of Values may be modified only with the prior written approval of Owner. Following any Change Order or Construction Change Directive, the Schedule of Values shall be adjusted by Contractor as necessary, in each case subject to Owner's prior written approval, to reflect accurately the values of the various portions and categories of the Work. The Schedule of Values as approved by Owner shall be used as the basis for all Payment Applications.

        2.3.4    Except with Owner's prior written consent, Contractor shall not make advance payments to Subcontractors or Vendors and, except as provided in Section 2.6 of this Agreement, shall not be entitled to payment for the cost of any equipment or materials which have not been delivered and incorporated into the Project or stored at the Property in a manner reasonably satisfactory to Owner and/or Owner's Lenders. Except as expressly provided in the Contractor's Certificate (defined in Section 2.3.6 of this Agreement), no Payment Application shall include requests for payment of amounts Contractor does not intend to pay promptly to a Subcontractor or Vendor because of a dispute or other reason.

        2.3.5    Each Payment Application shall include signed and acknowledged (by a notary) Conditional Waivers and Releases of Liens Upon Progress Payment in the form attached hereto as Exhibit F from Contractor and each Subcontractor and Vendor for all Work performed to date that is covered by such Payment Application, and signed and acknowledged Unconditional Waivers and Releases of Liens Upon Progress Payment in the form attached hereto as Exhibit G from Contractor and each Subcontractor and Vendor for all Work that was covered by the immediately preceding Payment Application. Execution and delivery of such waivers shall be an absolute condition precedent to Owner's duty to pay Contractor pursuant to any Payment Application. Notwithstanding the foregoing, and subject to all other terms of this Agreement, to the extent Contractor fails to provide any of the foregoing waivers and releases of lien when required ("Outstanding Releases"), Contractor shall provide to Owner's and Owner's Lenders' title insurers, from time to time upon Owner's request and as a condition to any progress or other payment to Contractor, such affidavits, indemnities, certificates and other instruments as such title insurers require to issue to Owner and Owner's Lenders, as a condition to any progress or other payment to Contractor, one or more endorsements to their respective title insurance policies insuring the lien free status of the Work and Property (Contractor's failure to cause the title insurer to provide the required endorsement(s) shall be a breach of this Agreement); provided, however, that at no time shall the aggregate of all Outstanding Releases represent Work with an aggregate value in excess of $200,000. In addition, Owner may at any time direct Contractor to submit an affidavit that all payrolls, invoices for material and equipment, and other indebtedness connected with the Work and associated with a Payment Application have been paid.

        2.3.6    Each Payment Application also shall include a "Contractor's Certificate," in form and substance identical to Exhibit H attached to this Agreement, signed by Contractor.

        2.3.7    In addition to amounts, if any, withheld pursuant to Sections 2.7.6 and 2.8 of this Agreement, Owner hereby gives written notice to Contractor that Owner shall withhold from each payment to Contractor an amount (the "Retainage") equal to five percent (5%) of that payment, which Retainage shall be retained by Owner and paid to Contractor sixty (60) calendar days following Completion of the Work (as defined in Section 2.7.2 of this Agreement).

        2.4    Progress Payments.    

        2.4.1    Within twenty (20) calendar days following Owner's and Owner's Lenders' receipt of a complete Payment Application and all required submittals under Section 2.3 of this Agreement, Owner shall make payment of any properly due amounts to Contractor, subject to the approvals required under this Section 2.4, and less any amount which may be retained or

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withheld pursuant to this Agreement, including, without limitation, Sections 2.3.7, 2.7.6 and/or 2.8 of this Agreement. This Section 2.4.1 shall constitute a "schedule for payment" as described in Section 624.609(1)(a) of the Nevada Revised Statutes.

        2.4.2    During the 20-calendar day period referred to in Section 2.4.1 above, Owner may approve or disapprove and/or withhold payment on, in whole or in part, a Payment Application based on any reasonable grounds, including, but not limited to:

        2.4.2.1    a failure of Contractor to furnish any required lien releases, insurance certificates, or bonds in a timely manner;

        2.4.2.2    a failure of Contractor to make payments promptly to Subcontractors and/or Vendors;

        2.4.2.3    Owner's good faith belief that the Work cannot be completed for the unpaid balance of the Contract Sum;

        2.4.2.4    regarding any particular portion of the Work as shown on the Schedule of Values, a determination by Owner that an amount requested attributable to a portion of the Work was not actually completed or the amount requested represents a greater percentage of the Work than actually completed;

        2.4.2.5    Owner's good faith belief that the Work will not be completed by the Scheduled Completion Date;

        2.4.2.6    damage to property or Work or injury to persons attributable to the acts or omissions of Contractor, Project Architect, or any Subcontractor or Vendor;

        2.4.2.7    unsatisfactory prosecution of the Work;

        2.4.2.8    lack of required documentation;

        2.4.2.9    deviations from the Contract Documents without an applicable Change Order or Construction Change Directive;

        2.4.2.10    the filing or existence of liens or claims against Owner, the Property, the Project or the Work arising out of or relating to Contractor's performance of the Work or other acts or omissions of Contractor, any Subcontractor or Vendor;

        2.4.2.11    a determination by Owner to nullify in whole or in part a prior approval of a Payment Application and/or prior payment made, because of subsequently discovered evidence or subsequent observations which otherwise would allow Owner to withhold payment pursuant to this Section 2.4 or elsewhere in the Contract Documents;

        2.4.2.12    Owner's Lenders' inability (if not the fault of Owner) to obtain (1) one or more title insurance endorsements to Owner's Lenders' title policy, showing no intervening or other liens, lien rights or encumbrances upon the Property or any improvements relating to the whole or any portion of the Work prior to any Lender Liens (as defined in Section 15.1 of this Agreement), other than those approved in writing by Owner's Lenders, and insuring the full amount of the disbursement and its priority satisfactory to Owner and Owner's Lenders, and showing no encroachments by any portion of the Work and proper location of foundations, or (2) a satisfactory report under the Nevada Uniform Commercial Code showing no liens or interests (other than those of Owner's Lenders) relating to the whole or any portion of the Work, including, without limitation, any improvements; or any failure of Contractor or any Subcontractor to comply with Section 15.1 of this Agreement;

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        2.4.2.13    Contractor's failure to obtain, comply with and keep valid and in full force, and deliver copies to Owner of, all approvals, permits, certifications, consents and licenses of governmental authorities or other parties having jurisdiction over the Property, the Project or the Work or contractual rights to approve or inspect any of the foregoing which are necessary at the stage of construction and/or otherwise existing and required to be complied with or satisfied when such disbursement to Contractor is to be made to enable Completion of the Work on or before the Scheduled Completion Date;

        2.4.2.14    an order or statement shall have been made by or received from any governmental, administrative or regulatory authority or agency stating that the whole or any part of the Work, and/or any proposed change thereto, for which Contractor or any Subcontractor is responsible or which relates to Contractor's or any Subcontractor's activities is in violation of any Governmental Requirements, unless such order or statement has been timely corrected to the satisfaction of both the applicable governmental agency and Owner and evidence of such timely correction shall have been provided to Owner in form and substance satisfactory to Owner;

        2.4.2.15    defective Work not remedied; and/or

        2.4.2.16    any other material breach or default or failure to perform by Contractor under the Contract Documents.

        2.4.3    If Owner and/or Owner's Lenders do not approve the full amount of the Payment Application, Owner shall provide written notice to Contractor and shall make payment of the lesser of the amount (if any) that Owner and Owner's Lenders have approved within the twenty (20)-calendar day period provided for in Section 2.4.1 of this Agreement (less any amount which may be retained or withheld pursuant to Sections 2.3.7, 2.7.6 and/or 2.8 of this Agreement). When the reason(s) for withholding approval are removed to Owner's and Owner's Lenders satisfaction, approval will be made for amounts previously withheld, and Owner will pay such amounts (less amounts properly withheld or retained) with the next regularly scheduled payment.

        2.5    Payments by Contractor.    Contractor shall promptly pay each Subcontractor and Vendor, within five (5) business days after receipt of payment from Owner, the amount to which said Subcontractor or Vendor is entitled on account of such Subcontractor's or Vendor's portion of the Work, as reflected in the Payment Application and reflecting Retainage in accordance with Section 2.3.7 of this Agreement or amounts withheld under this Agreement. Contractor shall, by appropriate agreement with each Subcontractor and Vendor, require each Subcontractor and Vendor to make payments to their respective Subcontractors and Vendors in a similar manner.

        2.6    Materials Off-Site.    All materials which are the subject of a Payment Application shall be stored at all times at the Project, in a bonded warehouse or such other secured facility satisfactory to Owner and Owner's Lenders, or, at the premises of the manufacturer or fabricator (in which event the materials shall be appropriately marked and identified with the applicable purchase contract and physically segregated in an area with access to a public street), until the materials are incorporated into the Project; provided that if the materials are stored with the manufacturer or fabricator, Owner must receive evidence satisfactory to Owner of the creditworthiness of the manufacturer or fabricator and/or Contractor shall procure and deliver or cause to be procured and delivered to Owner such dual obligee performance and labor and

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material payment bond or bonds, in form, substance and amount satisfactory to Owner and Owner's Lenders, as Owner and Owner's Lenders may require. Furthermore, Contractor shall:

        2.6.1    use the materials only for construction of the Project, and not make any transfer thereof or permit any lien to attach thereto which could materially impair the ability of Owner to use the materials for such purpose;

        2.6.2    take or cause to be taken all actions necessary to maintain, preserve and protect the materials and keep them in good condition and repair, and to comply with all laws, regulations and ordinances relating to the ownership, storage or use of the materials;

        2.6.3    cause to be delivered to Owner the original warehouse receipt (and any bailee waivers where bailee rights exist) covering any stored materials, and ensure that such stored materials have been stored in such a way as to eliminate the possibility that they will be commingled with other materials or projects; and

        2.6.4    ensure that Owner and Owner's Lenders may enter upon any property on which the materials may be stored to inspect them at any reasonable time.

        2.6.5    If Contractor shall fail to perform any of its obligations under this Section 2.6 after Owner has made payment to Contractor for the materials, Owner or Owner's Lenders may, but shall not be obligated to, after written notice to Contractor, take such actions and expend such sums as may be necessary in their respective judgments to protect and preserve Owner's title and Owner's Lenders' security interest in such materials, and all such expenditures so incurred (including, without limitation, attorneys' fees and disbursements) shall be repayable by Contractor promptly on demand with interest thereon per annum at the prime rate (as then published by Bank of America) plus two percent (2%) from the date of demand until paid.

        2.7    Final Payment.    

        2.7.1    Final payment ("Final Payment"), consisting of the entire unpaid balance of the Contract Sum, including Retainage held pursuant to Section 2.3.7 of this Agreement, shall be made to Contractor within sixty (60) calendar days after Completion of the Work.

        2.7.2    "Completion of the Work" shall be deemed to have occurred after Substantial Completion of the Work when (i) the Contract has been completely performed by Contractor in accordance with the Contract Documents as determined by Owner and Owner's Lenders, including, without limitation, completion of all "punch-list" work (unless Owner has with written notice to Contractor elected to retain sufficient funds to protect it against the nonperformance of such "punch-list" work), (ii) Contractor has delivered each and all of the items described in Sections 2.7.5.1 through 2.7.5.12 of this Agreement, (iii) Owner has accepted the Work in writing, and (iv) the OCIP Audit (as defined in Section 10.1.3 of this Agreement) as it relates to the Project has been completed and any required downward adjustments in the Contract Sum have been made as described in Sections 2.1 and 10.1.3 of this Agreement.

        2.7.3    Contractor shall submit, with its final Payment Application, an Unconditional Waiver and Release of Liens Upon Final Payment in the form attached hereto as Exhibit I executed by Contractor, and by any additional parties Owner designates including, without limitation, all Subcontractors and Vendors.

        2.7.4    Upon receipt of written notice from Contractor that the Work is ready for final inspection and acceptance and upon receipt of an acceptable final Payment Application with all required submittals, Owner and/or Owner's Lenders will promptly make such inspection and, when Owner and Owner's Lenders find the Work acceptable under the Contract Documents and the Contract fully performed, Owner shall approve the Final Payment.

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        2.7.5    Notwithstanding anything to the contrary in the Contract Documents, Final Payment shall not become due until Contractor submits to Owner and Owner's Lenders:

        2.7.5.1    an affidavit that all payrolls, bills for materials and equipment, and other indebtedness and obligations connected with the Work for which Owner or Owner's Property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied;

        2.7.5.2    a certificate of the insurer(s) evidencing that insurance required by the Contract Documents to remain in force after Final Payment is currently in effect and will not be cancelled or allowed to expire until at least 30 calendar days' prior written notice has been given to Owner;

        2.7.5.3    a written statement that Contractor knows of no reason that such insurance will not be renewable to cover the period required by the Contract Documents;

        2.7.5.4    if required by Owner or Owner's Lenders, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract or the Work which may then or in the future affect Owner, the Project or Property, and to the extent and in such form as may reasonably be designated by Owner or Owner's Lenders (if a Subcontractor or Vendor refuses to furnish a release or waiver required by Owner, Contractor shall within such time as set forth in Section 5.9 of this Agreement and in accordance with the procedure set forth in Section 5.9 furnish a bond satisfactory to Owner, in Owner's and Owner's Lenders' sole and absolute discretion, to indemnify Owner against such lien and cause it to be paid and released; if such lien remains unsatisfied after payments are made, Contractor shall immediately refund to Owner and indemnify Owner against all monies that Owner is compelled to pay in discharging such lien, including all costs and attorneys' fees);

        2.7.5.5    an affidavit certifying that Contractor has paid all taxes and all labor costs, including, without limitation, any union dues, health, welfare, pension plan, and other labor associated contributions;

        2.7.5.6    all written guarantees and warranties under the Contract for Contractor, Subcontractors and Vendors; all instructions and warranties furnished by manufacturers, suppliers, or Vendors relating to any materials and equipment incorporated in the Work; all required operation and maintenance manuals for major equipment required under the Contract; as-built drawings required under Section 5.11 of this Agreement; and a survey conducted by a licensed surveyor and paid for by Contractor at its sole cost and expense showing (i) the Work "as built," including, without limitation, the location (both vertically and horizontally) of the Project's structures and improvements (including all foundations) on the Property, the lines of the street(s) abutting the portion of the Property on which the Project is located and the width thereof, and such other matters as are reasonably requested by Owner, and (ii) no encroachments by any part of the Project outside the boundaries of the Property;

        2.7.5.7    all certificates of occupancy (or their equivalents) relating to or required for the full use and occupancy of all aspects of the Project (and Owner can fully occupy and utilize the Work for its intended use, including, but not limited to, the ability of vehicles to park and to move freely into, within, and out of the Project and the ability of pedestrians and passengers to access the Property, including the Casino Improvements from the Project as intended by Owner);

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        2.7.5.8    any documents, instruments, releases, affidavits, certificates and indemnities reasonably required in order to permit Owner and Owner's Lenders to secure endorsements in form and content satisfactory to them to their respective policies of title insurance for the Property, including, without limitation, that no mechanics' or materialmen's liens appear of record, that all Lender Liens are of first priority (including prior to any unrecorded liens or other lien rights), and that there are no encroachments or violations of any recorded covenants, conditions or restrictions affecting the Property;

        2.7.5.9    such documents and other items so that Owner will receive and Owner does receive a release and complete refund of all security, bonds and/or cash amounts provided by or on behalf of Owner and held by or for the benefit of any administrative or governmental agency;

        2.7.5.10    an accurate list of all Subcontractors and Vendors with their addresses and telephone numbers;

        2.7.5.11    a statement of all unresolved claims (and for which payment has been and/or shall be withheld by Owner). Contractor shall separately list by claim number the specific dollar amounts which have previously been submitted as claims by Contractor in good faith and in full compliance with this Agreement; and

        2.7.5.12    such other certificates, instruments and affidavits relating to the Work as Owner or Owner's Lenders may reasonably require.

        2.7.6    Any unsatisfied conditions to Final Payment as set forth in this Section 2.7 shall, unless expressly waived in writing by Owner in Owner's sole and absolute discretion, be deemed to be and considered items in dispute allowing Owner to withhold from Final Payment such amounts as permitted by this Agreement. Owner shall give Contractor prior written notice of any such withholding. Contractor shall not be entitled to receive payment on any Payment Application that is inaccurate or incomplete or that contains any material misrepresentation. The rights and remedies of Owner under this Section 2.7 shall be non-exclusive and shall be in addition to all other remedies available to Owner under this Agreement or at law, in equity or otherwise.

        2.7.7    Except for such unresolved claims stated in specific dollar amounts which have been previously filed by Contractor in good faith and in full compliance with this Agreement, the submittal by Contractor of its final Payment Application shall constitute a final and irrevocable release and waiver by Contractor of any and all other claims and causes of action for additional costs allowable under the Contract Documents. This shall include, but not be limited to, any and all claims for additional amounts relating to the unresolved claims so identified by Contractor and claims or potential claims of Subcontractors and Vendors arising out of this Contract, whether or not any such claims or potential claims arise in contract or in tort or were known or unknown at the time of submittal of the final Payment Application.

        2.8    Withholding.    In addition to any amounts withheld from a Payment Application by Owner pursuant to Sections 2.3.7 and/or 2.7.6 of this Agreement, in the event of and during any breach or default or failure to perform by Contractor of its obligations pursuant to the Contract Documents, or any third-party claim against Owner arising out of or connected with the Work, Owner shall have the right (and Contractor hereby expressly authorizes Owner) to withhold such amounts and payments to Contractor as Owner in good faith deems necessary to protect Owner against or compensate Owner for any damage, cost, expense and loss attributable to the foregoing, to cure any breach, default or failure to perform, or to assure the payment of claims of third persons, and at Owner's option to apply such sums in such manner as Owner may in good faith deem necessary or proper to secure protection from or to satisfy such claims. Owner shall give

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Contractor prior written notice of any such withholding. Owner shall not be deemed in default by reason of withholding payment under this Agreement in good faith.

        2.9    Joint Checks. Owner shall have the right (but not the obligation) to issue in its discretion, at any time and from time to time, payment checks for portions of a progress payment or the Final Payment payable jointly to Contractor and the person or persons owed (including, without limitation, any Subcontractor or Vendor). Without limiting the generality of the foregoing, if Contractor fails, neglects, or refuses to pay for labor or services performed or materials or equipment supplied in connection with the Work as payments become due, Owner shall have the right (but not the obligation) upon written notice to Contractor to make payments directly for any and all such labor, materials, or equipment and to deduct the amount of such payment from the Contract Sum. Owner also shall have the right upon five (5) calendar days' prior written notice to Contractor to stop the performance of the Work by Contractor until payment of all amounts due and owing by Contractor has been made and such failure by Contractor to make such payments shall be a material breach under the Contract; provided, however, Owner shall not have any duty to stop the Work.

        2.10    Waiver.    Owner's payment of any item pursuant to any Payment Application or otherwise shall not constitute approval of the Work or the Payment Application, or result in Owner's waiver of any claims, all of Owner's rights being specifically reserved. A progress payment or partial or entire use or occupancy of the Project by Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. The acceptance of Final Payment by Contractor, a Subcontractor, and/or a Vendor shall constitute a waiver of all claims by that payee, except those previously made in writing and identified by that payee as unsettled at the time of the Payment Application for the Final Payment.

        2.11    Deposits and Payments.    If any deposits are required for the purchase of any materials, such deposits will be specifically identified by category and credited against amounts as billed in that category. Contractor agrees to receive and hold all payments to it by Owner as trust funds to be applied only to the payment of the Contract Sum. Contractor will, promptly upon written request from Owner, account for any and all funds theretofore received by Contractor from Owner. Contractor agrees to arrange to purchase such materials or equipment in advance of the time for installation in the Project as may be deemed advisable by Owner or Contractor, provided such purchases in excess of Fifty Thousand Dollars ($50,000.00) are approved by Owner and Owner's Lenders. Upon payment to Contractor of approved deposit amounts, Contractor shall provide Owner with an assignment of Contractor's rights relating to such deposit made and agreement for purchase of such item.

        2.12    Title to Materials.    Contractor represents and warrants to Owner that (i) title to all of the Work and materials and equipment incorporated into the Work or covered by any Payment Application will pass to Owner upon the earlier of incorporation in the Work or receipt of payment by Contractor, and such title shall be free and clear of all liens, claims, security interests or encumbrances; (ii) the vesting of such title shall not impose any obligations on Owner or relieve Contractor of any of its obligations under the Contract Documents; (iii) Contractor shall remain responsible for damage to or loss of the Work, whether completed or under construction, until responsibility for the Work has been accepted by Owner in the manner set forth in this Agreement; and (iv) no Work covered by a Payment Application and no material or equipment incorporated in the Work will have been acquired or incorporated into the Work by Contractor, or by any other person performing Work or furnishing materials and equipment for the Project, subject to an agreement under which an interest in the Work or an encumbrance on the Work or the Property is retained by the seller or otherwise imposed by Contractor or such other person. Subject to the terms of this Agreement, including any modifications or waivers of rights provided herein (including, without limitation, Section 15.1 hereof), the provisions of this Section shall not

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be a bar to Contractor's lien rights as to the Property under Nevada state law as to Work for which Contractor has not yet received payment (and to the extent Contractor is entitled to payment).

        2.13    Maintenance of Books and Records.    Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under the Contract and as are otherwise reasonably satisfactory to Owner. Contractor's books, records, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, cancelled checks, pay requests, invoices, bills and statements and all other data relating to or arising out of the design and construction of the Work, shall at all times be made available to Owner and Owner's Lenders for inspection, audit, and copying during normal working hours in Anaheim Hills, California. Contractor shall preserve in Anaheim Hills, California, all such records for a period of at least three (3) years after the Completion of the Work or for such longer period as may be required by law.

        3.    CHANGES IN THE WORK.    

        3.1    Change Orders.    

        3.1.1    Changes in the Work (as defined in Section 13.1 of this Agreement), regardless of impact, shall be made only in accordance with a Change Order or Construction Change Directive. No Change in the Work will increase the Contract Sum, or extend the Scheduled Completion Date, without an accompanying Change Order. Accordingly, no course of conduct or dealings between the parties, nor express or implied acceptance of alterations or additions to the Work, and no claim that Owner has been unjustly enriched by any alteration or addition to the Work, whether or not there is in fact any such unjust enrichment, shall be the basis for any claim to an increase in the Contract Sum or an extension of the Scheduled Completion Date. Notwithstanding anything to the contrary, any and all approvals, consents, Change Orders, and other documents under this Agreement affecting Owner's rights and/or the Work shall be effective only if signed by Owner.

        3.1.2    Once the actual cost of such Change in the Work and corresponding extension, if any, in the Scheduled Completion Date have been determined pursuant to this Article 3, prior to using such actual cost to make any increase in the Contract Sum, and prior to extending the Scheduled Completion Date, such actual cost and/or extension, as the case may be, shall be reduced and offset by any and all reductions or Changes in the Work which result in a reduced Contract Sum and/or an advancement of the Scheduled Completion Date, as the case may be (i.e., Changes in the Work shall be netted out). Any increase in the Contract Sum as a result of net Changes in the Work shall not exceed the sum of: (i) the aggregate additional amounts (if any) actually paid by Contractor to its Subcontractors and Vendors for the applicable Change in the Work, plus a mark-up on such amounts of not more than five percent (5%) to Contractor, and (ii) the increase (if any) in the actual Cost of the Work (as defined in Section 13.5 of this Agreement) incurred by Contractor with respect to the applicable Change in the Work to the extent (if any) performed by Contractor directly, plus a mark-up on any such increase incurred by Contractor of not more than ten percent (10%) to Contractor.

        3.1.3    At any time and from time to time prior to Completion of the Work, Owner may request Contractor to make Changes in the Work. If Owner desires a Change in the Work, Owner may, in its sole and absolute discretion and in writing, request a Change Proposal from Contractor (a "Change Proposal Request"). A Change Proposal Request shall set out, in reasonable detail, the Changes in the Work requested by Owner. Within ten (10) calendar days following its receipt of a Change Proposal Request, Contractor shall issue a Change Proposal (as defined in Section 13.3 of this Agreement). Contractor also shall issue a Change

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Proposal: (i) when Contractor reasonably believes that a Change in the Work is necessary or desirable (pursuant to a right set forth in this Agreement); or (ii) when a Change in the Work is made necessary by Governmental Requirements. Any material Changes in the Work shall require Owner's Lenders' prior approval.

        3.1.4    If Contractor refuses or fails to timely provide a Change Proposal requested by Owner, or modifies or alters a Change Proposal Request, or if Owner and Contractor are unable to agree in writing upon the terms of the Change Proposal requested by Owner, including, but not limited to: (i) the amount of increase or decrease in the Contract Sum, or (ii) the length of extension or advancement, if any, of the Scheduled Completion Date, Owner: may (1) issue a Construction Change Directive pursuant to Section 3.2 of this Agreement; (2) require Contractor to obtain at least three bids from qualified Subcontractors to perform such Change in the Work, and Owner may designate the Subcontractor from said bidders to perform such Change in the Work, and/or (3) engage other contractors, subcontractors and/or laborers to perform such Change in the Work, and Contractor shall cooperate fully with any of such persons, and any such hiring by Owner or issuance of a Construction Change Directive shall not affect this Agreement in any manner (other to provide for a reduction in the Contract Sum, equal to the amount of any Work reflected in the Schedule of Values not being performed by Contractor) and shall not be deemed to be a constructive termination.

        3.1.5    No dispute between Owner and Contractor relating to: (i) a change in the Contract Sum or the Scheduled Completion Date due to any Change in the Work, or (ii) any Change in the Work (either additive or reductive) shall entitle Contractor to walk off the Project or to slow down the Work.

        3.2    Construction Change Directive.    

        3.2.1    Owner may, by Construction Change Directive, without invalidating or breaching the Contract, order a Change in the Work. Upon receipt of a Construction Change Directive from Owner, Contractor shall promptly proceed with the Change in the Work involved (including implementing any reductions in the Work) and advise Owner of the Contractor's agreement (in which case Contractor shall sign and return the Construction Change Directive) or disagreement with the method, if any, provided in the Construction Change Directive for determining the proper adjustment, if any, in the Contract Sum and/or the Scheduled Completion Date.

        3.2.2    A Construction Change Directive signed and unmodified by Contractor indicates the agreement of Contractor therewith, including the method, if any, provided in the Construction Change Directive for determining the adjustment, if any, in the Contract Sum and/or the Scheduled Completion Date. Upon Contractor's written acceptance and delivery thereof to Owner of the unmodified Construction Change Directive, that Construction Change Directive shall become a Change Order. If Contractor fails to advise Owner of its agreement or disagreement with the proposed adjustment in the Contract Sum and/or the Scheduled Completion Date within ten (10) calendar days after the delivery of the Construction Change Directive to Contractor, then the Construction Change Directive shall be deemed approved by Contractor and shall become a Change Order, and Contractor shall have no right to any adjustment to the Contract Sum and/or the Scheduled Completion Date in excess of the adjustments, if any, provided in the Construction Change Directive.

        3.2.3    If Contractor disagrees with the method or adjustment in the Contract Sum and/or the Scheduled Completion Date within the ten (10)-calendar day time period provided for in Section 3.2.2 above, the method and the adjustment shall be submitted to an appropriate consultant for a recommendation or binding resolution as Owner may elect. If the parties are

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unable within a reasonable period of time (as determined by Owner) to reach an agreement or binding resolution by the consultant (if Owner elects) under the prior sentence or otherwise, the matter shall be resolved after Completion of the Work, in accordance with Section 15.11 of this Agreement.

        3.2.4    After Owner has issued a Construction Change Directive and pending final determination of the adjustment, if any, in the Contract Sum, any amount not in dispute may be included in Payment Applications to be paid by Owner.

        3.3    Surety Waiver.    Change Orders or Construction Change Directives as described in this Agreement shall not be subject to inspection or approval by any sureties issuing any performance or labor and material payment bonds in connection with the Project, whether or not the Change Orders (or Construction Change Directives) encompass "substantial" changes in the scope of Work undertaken by Contractor. Contractor shall cause any sureties, in issuing any performance or payment bonds in connection with the Project, to expressly waive any of their respective rights to approve any Change Orders or Construction Change Directives executed by Owner and Contractor.

        4.    STARTING AND COMPLETION DATE; DELAYS IN THE WORK.    

        4.1    Commencement of Work.    Contractor shall commence the Work in accordance with the Project Design and Construction Schedule no later than June 6, 2002 ("Date of Commencement"); provided that commencement of the construction phase of the Work shall commence upon Owner's issuance to Contractor of a written notice to proceed with the construction phase of the Work. If Owner fails to issue such a written notice to proceed in accordance with the Project Design and Construction Schedule, and if no default has occurred under Section 8.1 of this Agreement and Project Architect has timely provided all Design Services as required under the Contract (including in compliance with the Project Design and Construction Schedule), including the timely submission to Owner for its written approval of acceptable construction documents and the Plans and Specifications and such written approval has been given by Owner, the Scheduled Completion Date shall be extended pursuant to Change Order in accordance with Article 3 of this Agreement by one day for each full day that Owner fails to issue such notice to proceed.

        4.2    Completion of the Work.    

        4.2.1    Contractor shall proceed expeditiously with adequate forces, and shall achieve Substantial Completion of the Work (as defined in Section 13.9 of this Agreement) not later than June 27, 2003 (the "Scheduled Completion Date"), subject to any Excusable Delays (as defined in Section 13.7 of this Agreement). Subject to Section 4.2.2 below, if any Excusable Delays o