EX-10.11 14 a2081691zex-10_11.htm EXHIBIT 10.11
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Exhibit 10.11

AGREEMENT

FOR

GUARANTEED MAXIMUM PRICE
CONSTRUCTION SERVICES

BETWEEN

WYNN LAS VEGAS, LLC
("Owner")

AND

MARNELL CORRAO ASSOCIATES, INC.
("Contractor")

FOR

LE RÊVE

TABLE OF CONTENTS

			Page
ARTICLE I. DEFINITIONS			1
	1.1	Architect.	1
	1.2	Change, Change Order, Change Proposal and Construction Change Directive.	1
	1.3	Claim	1
	1.4	Contract	1
	1.5	Contract Documents	1
	1.6	Contract Time	2
	1.7	Cost of the Work	2
	1.8	Drawings	2
	1.9	Final Completion	2
	1.10	Guaranteed Date of Substantial Completion	2
	1.11	Guaranteed Maximum Price	2
	1.12	Major Permits.	2
	1.13	Modification	3
	1.14	Owner's Lenders	3
	1.15	Principal Interior Designer.	3
	1.16	Specifications.	3
	1.17	Subcontractor.	3
	1.18	Substantial Completion	3
	1.19	Substitution	3
	1.20	Vendor.	3
	1.21	Work	3
ARTICLE II. INTENT, INTERPRETATION AND CORRELATION			4
	2.1	Intent of the Contract Documents	4
	2.2	Order of Precedence.	4
	2.3	Contractor's Compliance with Contract Documents.	4
ARTICLE III. GUARANTEED MAXIMUM PRICE			5
	3.1	Guaranteed Maximum Price	5
	3.2	Cost of the Work	9
	3.3	Non-Allowable Cost of the Work	12
	3.4	Contractor's Responsibility For Taxes.	14
	3.5	Discounts, Rebates and Refunds.	14
	3.6	No Duplication.	14
ARTICLE IV. CONTRACT TIME AND INTERIM MILESTONE DATES			14
	4.1	Definitions.	14
	4.2	Time of the Essence.	15
	4.3	Completion Guarantees	15
	4.4	Liquidated Damages.	15
	4.5	Early Completion.	16
	4.6	Guaranty of Completion and Performance, and Financial Information	16
ARTICLE V. PAYMENTS TO CONTRACTOR			19
	5.1	Schedule of Values	19
	5.2	Applications For Progress Payments.	19
	5.3	Time of Payments	21
	5.4	Owner's Right To Withhold	22
	5.5	Joint Payee Checks.	24
	5.6	Retention	24

	5.7	Substantial Completion Payment	25
	5.8	Final Payment	25
	5.9	Disputed Payments.	26
	5.10	Ownership of Materials.	26
	5.11	Deposits and Payments.	26
	5.12	Waiver.	27
	5.13	Materials Off-Site.	27
ARTICLE VI. OWNER'S RESPONSIBILITIES			28
	6.1	Information and Services	28
	6.2	Limitations	28
	6.3	Project Representative	28
	6.4	Approval of Major Purchases	28
	6.5	Site Access	29
	6.6	Payments	29
	6.7	Proof of Funding	29
	6.8	Good Faith	29
	6.9	Timely Delivery of Drawings.	29
ARTICLE VII. CONTRACTOR'S RESPONSIBILITIES			29
	7.1	Contractor's Specific Representations	29
	7.2	General Description	31
	7.3	Preconstruction Services	33
	7.4	Systems and Procedures	35
	7.5	Schedule Meetings and Records	35
	7.6	Contractor's Operations	36
	7.7	Site Discipline	36
	7.8	Site Security	37
	7.9	Coordination With Others	37
	7.10	Product and Design Substitutions	39
	7.11	Tests and Inspections	39
	7.12	Access to Stored Material	40
	7.13	Shop Drawings, Product Data and Samples	40
	7.14	Project Record Documents and As-Built Requirements	41
	7.15	Site Clean Up	41
	7.16	Construction Facilities and Temporary Controls	42
	7.17	Cutting and Patching of Work	43
	7.18	Performance and Payment Bond Requirements	43
	7.19	Liens.	44
	7.20	Royalties and Patents	44
	7.21	Training	44
	7.22	Construction Photographs	44
	7.23	Statement of Unpaid Claims	45
ARTICLE VIII. ARCHITECT			45
	8.1	Architect's Administration of the Contract	45
ARTICLE IX. SUBCONTRACTORS AND VENDORS			45
	9.1	Subcontractors and Vendors	45
	9.2	Consent To Use Proposed Subcontractors and Vendors.	45
	9.3	Form of Subcontracts and Purchase Orders	46
	9.4	Subcontractors and Vendors Designated By Owner	46
	9.5	Payments to Subcontractors from the Contractor	46
	9.6	Subcontractor and Vendor Replacements	47

	9.7	Communications With Subcontractors and Vendors	47
	9.8	Assignment	47
ARTICLE X. WARRANTY OBLIGATIONS			47
	10.1	Contractor's Warranty	47
	10.2	Contractor's Warranty Period	48
	10.3	Compliance With Contract Documents	48
	10.4	Warranty Costs	48
	10.5	Timeliness of Corrective Services	48
	10.6	Warranty Survival	49
	10.7	Owner's Right To Correct	49
	10.8	Owner's Right to Supplement Work of Contractor	49
	10.9	Acceptance of Non-Conforming Work	49
	10.10	Warranty Exclusions	49
	10.11	Written Guaranty	49
ARTICLE XI. SCHEDULING, DELAYS AND ACCELERATION			50
	11.1	Owner's Right to Modify	50
	11.2	Project Schedule	50
	11.3	Schedule Updates	50
	11.4	Force Majeure Delay	50
	11.5	Owner Delay	51
	11.6	Extensions of Time and Guaranteed Maximum Price Increases for Delay.	51
	11.7	Limitations	52
	11.8	Recovery Plans	53
	11.9	Accelerations for Owner's Convenience	54
	11.10	Schedule Coordination	54
	11.11	Flow-Down Provisions	54
	11.12	Partial Occupancy Or Use	55
	11.13	Other	55
ARTICLE XII. SUBSTANTIAL AND FINAL COMPLETION			55
	12.1	Substantial Completion Procedures and Requirements	55
	12.2	Final Completion Procedures and Requirements	57
ARTICLE XIII. CONCEALED CONDITIONS AND UNCOVERING OF WORK			59
	13.1	Concealed Conditions	59
	13.2	Covering of Work	59
ARTICLE XIV. INDEMNIFICATION			60
	14.1	Indemnity	60
	14.2	Defense Costs	61
	14.3	Hazardous Materials	61
	14.4	Other Limitations	61
	14.5	Survival of Indemnification Provisions	62
	14.6	Risk	62
ARTICLE XV. INSURANCE			62
	15.1	Owner Controlled Insurance Program	62
	15.2	Evidence of Coverage	63
	15.3	Deductibles	63
	15.4	Cooperation by the Parties	63
	15.5	Duration	63
ARTICLE XVI. SAFETY AND COMPLIANCE			63
	16.1	Contractor's Site Safety Responsibilities	63
	16.2	Compliance	64

iii

ARTICLE XVII. TERMINATION OR SUSPENSION OF THE CONTRACT			65
	17.1	Material Default By Contractor	65
	17.2	Termination For Convenience	68
	17.3	Suspensions By Owner	68
	17.4	Limitations	69
	17.5	Other Rights and Remedies	69
	17.6	Contractor's Remedies	70
ARTICLE XVIII. CHANGE IN THE WORK			71
	18.1	Change	71
	18.2	Change Order	71
	18.3	Change Proposal Request	71
	18.4	Construction Change Directive	72
	18.5	Determination of Increases in Guaranteed Maximum Price	72
	18.6	Simultaneous Submittal Requirements	73
	18.7	Continued Performance	73
	18.8	Effect of Change Orders	73
	18.9	Verbal Instructions and Minor Changes in the Work	74
	18.10	Waiver and Release of Contractor's Rights	74
ARTICLE XIX. RECORD KEEPING AND AUDIT RIGHTS			74
	19.1	Required Accounting Records.	74
	19.2	Purpose and Extent of Record Access	75
	19.3	Record Keeping Formats	75
	19.4	Certifications.	75
	19.5	Flow Down Provisions	75
	19.6	Remedies	75
	19.7	Record Retention.	76
ARTICLE XX. CLAIMS			76
	20.1	Definition	76
	20.2	Notice	76
	20.3	Pending Resolution	76
	20.4	Final Settlement of Claims	76
	20.5	Unresolved Claims	76
ARTICLE XXI. OWNER'S LENDERS			77
	21.1	Owner's Lenders	77
	21.2	Assignment and Default	77
	21.3	Owner's Lenders Election.	77
	21.4	Payment and Work Continuation	77
	21.5	Payments.	78
	21.6	Audit Rights.	78
	21.7	Access.	78
	21.8	Material Changes.	78
	21.9	General Cooperation.	78
ARTICLE XXII. DISPUTE RESOLUTION AND GOVERNING LAW			78
	22.1	Judicial Determination	78
	22.2	Governing Law	79
	22.3	Non-Waiver	79
	22.4	Severability	79
ARTICLE XXIII. PROPRIETARY INFORMATION AND USE OF OWNER'S NAME			79
	23.1	Proprietary Information	79
	23.2	Advertising and Use of Owner's Name	79

	23.3	Use of Drawings	79
ARTICLE XXIV. MISCELLANEOUS PROVISIONS			79
	24.1	Assignment.	79
	24.2	Subordination	80
	24.3	No Third-Party Beneficiaries.	80
	24.4	Enforceability.	80
	24.5	Headings.	80
	24.6	Counterparts.	80
	24.7	Legal Fees.	81
	24.8	Waiver.	81
	24.9	Intent of the Parties	81
	24.10	Survival.	81
	24.11	Independent Contractor.	81
	24.12	Privileged Business.	82
	24.13	Entire Agreement	82
ARTICLE XXV. NOTICES			82
	25.1	Notice Procedures	82
	25.2	Notices To Owner	82
	25.3	Notices To Contractor	83
	25.4	Change of Address.	83

AGREEMENT FOR GUARANTEED MAXIMUM PRICE CONSTRUCTION SERVICES
LE RÊVE

This Agreement for Guaranteed Maximum Price Construction Services ("Agreement"), effective as of June 4, 2002 (the "Effective Date") is entered into between WYNN LAS VEGAS LLC, a Nevada limited liability company ("Owner"), and MARNELL CORRAO ASSOCIATES, INC., a Nevada Corporation ("Contractor"), with regard to the following.

RECITALS

A. Owner owns the real property commonly known as 3131 Las Vegas Boulevard South, Las Vegas, Nevada and more particularly described on Exhibit A attached hereto and incorporated herein by the reference ("Site").

B. Owner desires to construct on the Site 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, an "Aqua Theatre" showroom, and exterior features, and all on-Site and off-Site improvements and infrastructure related thereto, all in full accordance with the Contract Documents, including the Drawings and Specifications, and including the Work (as defined below) (the "Project"). Contractor's Work is only a portion of the Project. The Project also includes services and materials to be provided by Owner and other separate contractors and consultants.

C. Contractor and Owner acknowledge that the Drawings and Specifications are not complete, and Contractor and Owner agree to work together to complete the Drawings and Specifications as provided in this Agreement, including consistent with the Guaranteed Maximum Price Premises and Assumptions and Project Schedule.

D. Owner desires to engage Contractor to construct, and supervise the construction of, that portion of the Project comprising the Work as more fully described in this Agreement, and Contractor desires to accept such engagement, upon the terms and conditions contained in this Agreement.

AGREEMENT

In consideration of the mutual covenants and agreements set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Contractor and Owner hereby adopt and incorporate the foregoing Recitals and agree as follows:

ARTICLE I.
DEFINITIONS

1.1 Architect. The "Architect" for the Project is Butler/Ashworth Architects, Ltd., LLC. or any other architect designated by Owner to Contractor in writing; provided, however, solely with regard to the Aqua Theatre, the term Architect shall mean A.A. Marnell II, Chtd. pursuant to that certain Professional Design Services Agreement dated as October 5, 2001.

1.2 Change, Change Order, Change Proposal and Construction Change Directive. The terms Change, Change Order, Change Proposal and Construction Change Directive are defined in Article 18 of this Agreement.

1.3 Claim. The term Claim is defined in Section 20.1 of this Agreement.

1.4 Contract. Collectively the Contract Documents described in Section 1.5 below form the entire contract for implementation of the Work and are collectively referred to as the "Contract".

1.5 Contract Documents. "Contract Documents" shall consist of the documents listed in this Section 1.5 which are hereby incorporated herein by this reference:

1.5.1 This Agreement (including all Exhibits hereto);

1.5.2 The Drawings (as defined in Section 1.8 below);

1.5.3 The Specifications (as defined in Section 1.16 below);

1.5.4 The Project Schedule (as defined in Section 11.2 of this Agreement and attached hereto as Exhibit B);

1.5.5 The list of those personnel assigned by Contractor as Contractor's Personnel, attached hereto as Exhibit C;

1.5.6 All contracts and purchase orders of Contractor with Subcontractors and/or Vendors with attachments thereto;

1.5.7 The list of Contractor's Owned Equipment to be rented to Owner pursuant to Section 3.2.6 of this Agreement, attached hereto as Exhibit D;

1.5.8 The Schedule of Values (as defined in Section 5.1 of this Agreement);

1.5.9 Guaranteed Maximum Price Premises and Assumptions, as defined in Section 3.1.8.1 of this Agreement;

1.5.10 Technical Studies and Reports (as defined in Section 7.2 of this Agreement); and

1.5.11 All supplements, addenda, modifications and amendments to any of the foregoing Sections 1.5.1 through and including 1.5.10, from time to time approved by Owner in writing, including, without limitation, any Change Orders (as defined in Section 18.2 of this Agreement) and Construction Change Directives (as defined in Article 18 of this Agreement), and such other documents expressly referred to in the foregoing documents as being a part of the Contract Documents. The Contract Documents do not include other documents such as bidding requirements (advertisement or invitation to bid, Instructions to Bidders, sample forms, and Contractor's bid or portion of addenda relating to bidding requirements, except to the extent included as part of a subcontract approved in accordance with this Agreement and not inconsistent with this Agreement).

1.6 Contract Time. The "Contract Time" is the period of time for the Contractor to achieve Substantial Completion of the Work in its entirety as further described in Section 4.1 of this Agreement.

1.7 Cost of the Work. Cost of the Work shall have the meaning set forth in Section 3.2 of this Agreement.

1.8 Drawings. "Drawings" are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, which are approved for use during construction and show the design, location and dimensions of the Work and Project including plans, elevations, sections, diagrams and other details; provided, however, Owner and Contractor acknowledge that as of the Effective Date the Drawings are not complete. The Drawings include those listed on Exhibit E attached hereto and incorporated herein by this reference.

1.9 Final Completion. Final Completion shall have the meaning set forth in Section 12.2 of this Agreement.

1.10 Guaranteed Date of Substantial Completion. The term Guaranteed Date of Substantial Completion is defined in Section 4.1 of this Agreement.

1.11 Guaranteed Maximum Price. The term Guaranteed Maximum Price shall have the meaning set forth in Section 3.1 of this Agreement.

1.12 Major Permits. Major Permits are the architectural, grading and structural permits, including plan check fees and transportation taxes directly relating thereto, for the major building components of the Project. Major Permits shall not include individual permits relating to individual

Subcontractor's respective portions of the Work, other than those identified in this Section 1.12, unless otherwise agreed upon by Owner and Contractor (provided, however, Owner shall pay for the plan check fees and transportation taxes relating to the mechanical, electrical and plumbing permits for the Project).

1.13 Modification. The Contract Documents may be amended only by a "Modification" which is defined to mean any of the following:

1.13.1 A written amendment to the Contract identified as such and signed by both parties;

1.13.2 A Change Order as defined in Article 18 of this Agreement;

1.13.3 A Construction Change Directive as defined in Article 18 of this Agreement; or

1.13.4 A Minor Change as defined in Section 18.9 of this Agreement.

1.14 Owner's Lenders. The term Owner's Lenders is defined in Article 21 of this Agreement.

1.15 Principal Interior Designer. The "Principal Interior Designer" for the Project is Wynn Design and Development, LLC. For purposes of Contractor's Work, the Architect shall be responsible for coordinating the activities of the Principal Interior Designer.

1.16 Specifications. "Specifications" are that portion of the Contract Documents, wherever located and whenever issued, which are approved by Owner for use during construction and set forth the minimum written requirements for materials, equipment, construction systems, standards and workmanship for the Work; provided, however, Owner and Contractor acknowledge that as of the Effective Date the Specifications are not complete.

1.17 Subcontractor. "Subcontractor" means any person or entity (including employees, agents and representatives thereof) (including laborers) who has a contract with or is engaged by Contractor, or with any other Subcontractor, at any tier to construct or perform a portion of the Work and/or provide construction related services for the Work at the Site, and includes any party any of them are responsible or liable for at law or under the Contract Documents.

1.18 Substantial Completion. "Substantial Completion" shall have the meaning set forth in Section 12.1 of this Agreement.

1.19 Substitution. "Substitution" means the substitution of any materials or equipment specified in the Contract Documents, or any design change, initiated by the Contractor and approved by Owner in advance and in writing pursuant to Section 7.10 of this Agreement after the Effective Date.

1.20 Vendor. "Vendor" means any person or entity (including employees, agents and representatives thereof) which has a purchase order or other agreement to provide materials, supplies, equipment and/or related services for the Work and/or provide installation services at the Site for the Work, through a contract, purchase order or other arrangement with Contractor or any Subcontractor at any tier, and includes any party any of them are responsible or liable for at law or under the Contract Documents.

1.21 Work. "Work" means the totality of the obligations imposed upon Contractor by the Contract Documents, including, without limitation, the supply and performance by Contractor, directly and through Subcontractors and Vendors, of all things necessary and/or reasonably inferable from the Contract Documents as being required or necessary to fully complete the tasks and improvements described in Exhibit F attached hereto as Contractor's Work, in accordance with the requirements of the Contract Documents, including, but not limited to, all labor, services, materials, equipment, tools, machinery and fabrication. The term "Work" does not include the exclusions or Owner's separate work as identified on Exhibit F attached hereto.

ARTICLE II.
INTENT, INTERPRETATION AND CORRELATION

2.1 Intent of the Contract Documents. The intent of the Contract Documents is for the Contractor to perform and supply, and Owner hereby engages Contractor to and Contractor hereby agrees to perform and supply, the Work, including all necessary scheduling, procurement, supervision, construction, and construction management services and supply all necessary labor, materials, equipment and related work and services, including all things reasonably inferable from the Contract Documents as being necessary to fully complete the Work and obtain the intended results described in Exhibit F attached hereto, in accordance with the requirements of the Contract Documents, including, but not limited to the requirements of the Project Schedule and the Guaranteed Maximum Price requirements set forth in Article 3 below. The enumeration of particular items in the Specifications and/or Drawings and/or other Contract Documents shall not be construed to exclude other items. The Contract Documents are complementary, and what is required by or reasonably inferable from any one of the Contract Documents (including either a Drawing or Specification) as being necessary to produce the intended results shall be binding and required as a part of the Work as if required by all Contract Documents.

2.2 Order of Precedence. Subject to the provisions of Section 2.3 hereof, in the event of any conflicts or inconsistencies which cannot be resolved by reading the Contract Documents as a whole, the provisions of the Contract Documents shall be controlling in accordance with the following order of precedence:

2.2.1 This Agreement;

2.2.2 The Drawings;

2.2.3 Specifications; and

2.2.4 Other Contract Documents incorporated by reference.

2.3 Contractor's Compliance with Contract Documents.

2.3.1 Contractor hereby agrees and accepts that Contractor has a duty to refer all questions with respect to any doubts or concerns over the intent or appropriate interpretation of the Contract Documents to Owner for Owner's decision. Contractor agrees, accepts and assumes that Owner's decision will require implementation of the most stringent requirements among any conflicting provisions of the Contract Documents as being part of the Work. Contractor agrees to be bound by all decisions by Owner to implement the most stringent of any conflicting requirements within the Contract Documents. Any failure by Contractor to seek such clarifications shall in no way limit Owner's ability to require implementation, including replacement of installed Work at a later date at Contractor's sole expense, to achieve compliance with the more stringent requirements.

2.3.2 The failure of Owner to insist in any one or more instances upon a strict compliance with any provision of this Contract, or to exercise any option herein conferred, shall not be construed as a waiver or relinquishment of Owner's right thereafter to require compliance with such provision of this Contract, or as being a waiver of Owner's right thereafter to exercise such option, and such provision or option will remain in full force and effect.

2.3.3 If there is any inconsistency in the Drawings or any conflict between the Drawings and Specifications, Contractor shall provide the better quality or greater quantity of Work or materials, as applicable, unless Owner directs otherwise in writing.

2.3.4 Contractor shall be responsible for dividing the Work among the appropriate Subcontractors and Vendors. No claim will be entertained by Owner based upon the organization

or arrangement of the Specifications and/or the Drawings into areas, sections, subsections or trade disciplines.

2.3.5 Detail drawings shall take precedence over scale drawings, and figured dimensions on the Drawings shall govern the setting out of the Work.

2.3.6 Unless the Specifications expressly state otherwise, references to documents and standards of professional organizations shall mean the latest editions published prior to the Effective Date.

2.3.7 Technical words, abbreviations and acronyms in the Contract Documents shall be used and interpreted in accordance with customary usage in the construction industry.

2.3.8 Whenever consent, permission or approval is required from any party pursuant to the provisions of the Contract Documents, such consent, permission or approval shall, unless expressly provided otherwise in this Agreement, be given or obtained, as applicable, in writing.

ARTICLE III.
GUARANTEED MAXIMUM PRICE

3.1 Guaranteed Maximum Price. Subject to additions and deductions which may be made only in accordance with the Contract Documents, Contractor represents, warrants and guarantees to Owner that the total maximum cost to be paid by Owner for Contractor's complete performance under the Contract Documents, including, without limitation, Final Completion of all Work, all services of Contractor under the Contract, and all fees, compensation and reimbursements to Contractor, shall not exceed the total amount of Nine Hundred One Million Eight Hundred Eighty Three Thousand Seven Hundred Ten Dollars ($901,883,710.00) ("Guaranteed Maximum Price"). Costs which would cause the Guaranteed Maximum Price (as may be adjusted pursuant to the Contract Documents) to be exceeded shall be paid by the Contractor without reimbursement by Owner.

3.1.1 Guaranteed Maximum Price Components. The Guaranteed Maximum Price is comprised of the maximum amount payable by Owner for:

3.1.1.1 the Cost of the Work listed in Subsection 3.2 hereof for full and complete performance of the Work in strict accordance with Contract Documents, and

3.1.1.2 a fixed fee to Contractor in the amount of $30,000,000.00 ("Contractor's Fee").

The Contractor's Fee shall be the Contractor's sole and exclusive compensation for all costs described as Non-Allowable Costs of the Work in Section 3.3 hereof and is inclusive of all overhead and profit arising out of or relating to the Contractor's Work. The Guaranteed Maximum Price is further broken down into line items and categories on Exhibit F attached hereto.

3.1.2 Cost Overruns. Subject to additions or deductions which may be made in accordance with the Contract Documents, Contractor shall be solely liable and responsible for and shall pay any and all costs, fees and other expenditures in excess of the Guaranteed Maximum Price for and/or relating to the Work, without entitlement to reimbursement from Owner. Contractor is not entitled to any fee, payment, compensation or reimbursement under this Agreement or relating to the Work or Project other than as expressly provided in this Article 3.

3.1.3 Proof of Funds. If at any time or from time to time Owner reasonably believes that based on the progress of the Work and Cost of the Work that at any point the Work cannot be completed for the Guaranteed Maximum Price, Owner shall have the right to require Contractor to provide Owner with satisfactory evidence of funds available to Contractor to pay any anticipated overage. Prior to Owner exercising any rights under this Section, Owner shall first provide written notice to Contractor requesting satisfactory evidence of available funds and shall include in the

request a) the reasons for Owner's belief that the Work cannot be completed for the Guaranteed Maximum Price and b) the method and manner by which Owner calculates the anticipated overage. Contractor shall, within ten days following receipt of this written notice from Owner, provide Owner with either i) evidence reasonably satisfactory to Owner that the Work can be completed within the Guaranteed Maximum Price and the basis upon which Contractor believes this to be accurate or ii) satisfactory evidence of funds available to make up any anticipated overage. If Owner, after reviewing the evidence submitted by Contractor pursuant to paragraph i) herein, still reasonably believes that the Work cannot be completed for the Guaranteed Maximum Price, then Owner shall have the right to notify Contractor in writing of Owner's determination thereof and Contractor shall, within five days of receipt of Owner's written notice of this determination, provide Owner with satisfactory evidence of funds available to pay any anticipated overage as described in Owner's initial request for proof of funds. Contractor's failure to timely provide such satisfactory evidence to Owner of available funds shall constitute a default under this Agreement.

3.1.4 Inferable Work. Contractor agrees that the scope of the Guaranteed Maximum Price includes Work not expressly indicated on the Contract Documents, but which is reasonably inferable from the Contract Documents, or consistent therewith, and such Work shall be performed by Contractor without any increase in the Guaranteed Maximum Price.

3.1.5 Owner Contingency. The Guaranteed Maximum Price includes an Owner contingency in the amount of $7,565,200.00 ("Owner Contingency"). To allocate a portion of the Owner Contingency to a portion of the Work for any purpose, Contractor shall submit a Change Proposal (as defined in Section 18.3.1 of this Agreement) to Owner setting forth in reasonable detail why the allocation is required. Contractor and Owner will then follow the procedure described in Article 18 of this Agreement. Each allocation of the Owner Contingency by Contractor and approved by Owner shall be reflected on the respective Application for Progress Payment for the period during which Contractor makes such approved allocation. Any portion of the Owner Contingency remaining unallocated at Final Completion shall be a credit against and reduce the Guaranteed Maximum Price.

3.1.6 Construction Contingency. The Guaranteed Maximum Price includes a construction contingency in the amount of $44,987,078.00 ("Construction Contingency"). Subject to the terms of the Contract Documents, Contractor shall be entitled to allocate from and apply against the Construction Contingency Costs of the Work for the following, and no other, purposes relating to the Work: (a) implementation of any Recovery Plan, (b) cost overruns, (c) Minor Changes in the Work, (d) warranty costs prior to Final Completion, (e) those circumstances where the actual cost of an item exceeds the amount allocated to such item in the Guaranteed Maximum Price (pursuant to Section 3.1.8.2 or 3.1.8.3 of this Agreement), (f) any purpose expressly authorized in this Agreement, and (g) concealed conditions; provided, however, that Contractor may not apply, use or allocate from the Construction Contingency any amounts for any of the foregoing purposes that are the result of, relate to or arise from any material breach or material failure to perform by, Contractor, any Subcontractor or Vendor (except as necessary to replace any Subcontractor or Vendor because of the bankruptcy or failure to perform of such Subcontractor or Vendor), or any party for which any of them are liable or responsible at law or under the Contract Documents or for any Non-Allowable Costs of the Work. Each allocation of the Construction Contingency by Contractor shall be reflected (with a narrative explanation) on the respective Application for Progress Payment for the period during which Contractor makes such allocation and application. Any portion of the Construction Contingency remaining unallocated at Final Completion shall be a credit against and reduce the Guaranteed Maximum Price.

3.1.7 Allowances. The Guaranteed Maximum Price includes specific "Allowance Amounts" for certain items as shown on the Schedule of Values and budgeted in the Guaranteed Maximum

Price ("Allowance Items"). The only Allowance Items shall be those specifically identified as such in the Schedule of Values and in the Guaranteed Maximum Price. The Allowance Amounts represent all Costs of the Work of the Allowance Items, including, without limitation, costs of materials, labor, handling, transportation, loading and unloading and installation, as determined by Contractor.

3.1.8 Fast Track Drawings and Specifications. As described in Section 7.3 of this Agreement, the Drawings and Specifications for the Work and Project are not complete. As Drawings and Specifications are completed for a particular portion of the Work (including Allowance Items), Contractor shall to the extent practical propose and obtain bids from a minimum of three Subcontractors and/or Vendors for that portion of the Work and, in accordance with Section 9.2 hereof, assist Owner in selecting one of the Subcontractor or Vendor bids for that Work.

3.1.8.1 If the amount of the bid selected by Owner exceeds the amount budgeted in the Guaranteed Maximum Price for that item or portion of the Work, including the Allowance Amount as to an Allowance Item, and the increase in cost is due to the failure of the Drawings and Specifications to substantially conform to the "Guaranteed Maximum Price Premises and Assumptions" as set forth on Exhibit G attached hereto, Owner shall, subject to Section 3.1.8.3 below, either (a) rework the Drawings and Specifications with Architect and Contractor to cause the Work depicted therein to fall within the budgeted amount allocated in the Guaranteed Maximum Price (or within the Allowance Amount as to an Allowance Item), or (b) if the cost difference is less than $50,000.00 (subject to an aggregate maximum total of $500,000.00), Owner shall be entitled to allocate and apply a portion of the Construction Contingency to such increased cost, or (c) increase the Guaranteed Maximum Price by an amount equal to that portion of the difference between the amount of the selected bid over the amount budgeted for such item or portion of the Work in the Guaranteed Maximum Price (or over the Allowance Amount as to an Allowance Item) that is attributable to the failure of the Drawings and Specifications to substantially conform to the Guaranteed Maximum Price Premises and Assumptions, or (d) apply a portion of the Owner Contingency to cover such increased cost of the selected bid that is attributable to the failure of the Drawings and Specifications to substantially conform to the Guaranteed Maximum Price Premises and Assumptions.

3.1.8.2 If the amount of the bid recommended by Contractor exceeds the amount allocated or budgeted in the Guaranteed Maximum Price for that item or portion of the Work, and the Drawings and Specifications substantially conform to the Guaranteed Maximum Price Premises and Assumptions, then:

(a): if the portion of the Work is not an Allowance Item, Contractor shall perform such Work and such increase in costs shall be solely Contractor's responsibility and Contractor shall not be entitled to, and will not seek, any increase in the Guaranteed Maximum Price (though Contractor shall be entitled to allocate a portion of the Construction Contingency to cover such cost increase if Contractor elects to the extent permitted in accordance with Section 3.1.6 hereof; provided however, if no funds remain in the Construction Contingency, Contractor shall still be responsible for the increased cost of the Work); or
(b): If the portion of the Work is an Allowance Item, Contractor shall not be responsible for such excess cost of that Allowance Item over the Allowance Amount (subject to Section 3.1.8.3 hereof), even if the Drawings and Specifications are in substantial conformance with the Guaranteed Maximum Price Premises and Assumptions, and in

such case as to such increased costs Owner will make an election under clauses (a), (b), (c) or (d) of Section 3.1.8.1 above.

3.1.8.3 Notwithstanding the provisions of Sections 3.1.8.1 and 3.1.8.2 above, if Contractor failed to comply with its obligations under Section 7.3 of this Agreement, including to timely notify Owner in writing in accordance with Section 7.3.5 of this Agreement that the Drawings, Specifications or designs for such item or portion of the Work (including any Allowance Item), failed to substantially conform to the Guaranteed Maximum Price Premises and Assumptions, or that redesign or value engineering was necessary to bring the cost within or below the amounts allocated in the Guaranteed Maximum Price for such item or portion of the Work, Owner shall not be required to make any election under clause (a), (b), (c) or (d) of Section 3.1.8.1 above or under Section 3.1.8.2 above, and Contractor shall perform and be responsible for the increased cost of such Work (though Contractor may utilize a portion of the Construction Contingency to cover such increased costs; provided, however, if no funds remain in the Construction Contingency, Contractor shall still be responsible for the increased costs of such Work) and be estopped from seeking, and Contractor agrees not to seek and shall not be entitled to, any increase in the Guaranteed Maximum Price with regard thereto.

3.1.8.4 If the amount of the bid selected by Owner plus the additional and customary cost to complete the bid Work (if such additional and customary amount is so required as mutually determined between Owner and Contractor) is less than the amount allocated or budgeted in the Guaranteed Maximum Price for that item or portion of the Work, then:

(a): if the portion of the Work is not an Allowance Item, the difference between those amounts shall be allocated to and included within the Construction Contingency; provided, however, if allocating such amounts to the Construction Contingency would cause the amount of the Construction Contingency to exceed $44,987,078.00, then any such excess over the foregoing $44,987,078.00 shall be allocated to the Owner's Contingency; or
(b): if the portion of the Work is an Allowance Item, then such savings and difference shall be allocated to the Owner's Contingency.

3.1.8.5 Notwithstanding the provisions of this Section 3.1.8, if Owner elects to have a party other than Contractor, or one of Contractor's Subcontractors, perform the Work related to an Allowance Item or other portion of the Work, or otherwise eliminates or reduces the scope of an Allowance Item or other portion of the Work, the Guaranteed Maximum Price shall be reduced by both (a) the Allowance Amount for any such Allowance Item or the budgeted amount in the Guaranteed Maximum Price for such item, and (b) a portion of the Contractor's Fee in an amount equal to three percent (3%) of the amount by which the aggregate amount of reductions specified in the preceding clause (a) exceed $30,000,000.00, and there shall not be any corresponding increase in the Guaranteed Maximum Price for the cost of such Allowance Item or other portion of the Work not performed by Contractor.

3.1.8.6 (a) Interiors Allocation values set forth in Attachment 2 of Exhibit F to the Agreement, were established by Contractor and Owner utilizing historical cost information from representative projects. The Contractor Interiors Allocation values combined with the Owner (WDD) Interiors Allocation values, as set forth in Attachment 2 of Exhibit F to the Agreement, provide for the total budgeted value for the interiors of each respective area. It is recognized that these values may require adjustments upon receipt of the final design documents and that a final re-allocation may need to occur for each of the respective areas. Such re-allocations shall not cause the combined Interiors Allocations to exceed the total amount for same identified in Exhibit F to the Agreement. In no event shall any re-allocations of the Interior Allocation values pursuant to this Section or otherwise result in an increase to

the total amount of the Interior Allocation values as set forth in column D & E of Attachment 2 of Exhibit F to the Agreement.

(b) To the extent any mutually agreed upon re-allocation of the Interior Allocation values between Owner and Contractor with regard to a respective interior area, increases the value allocated to Contractor over the value set forth for Contractor on Attachment 2 to Exhibit F to the Agreement, then Owner shall either (i) cause the Guaranteed Maximum Price to correspondingly be increased by an amount equal to the increase in such value allocated to Contractor, or (ii) rework the Drawings and Specifications to cause the respective interior Work to fall within the value originally allocated to Contractor (such that no re-allocation occurs), or (iii) apply a portion of the Owner Contingency to cover such increase in values allocated to Contractor.

(c) To the extent any mutually agreed upon re-allocation of the Interiors Allocation values between Owner and Contractor with regard to a respective interior area, reduces the value allocated to Contractor from the value set forth for Contractor on Attachment 2 to Exhibit F to the Agreement, then the Guaranteed Maximum Price shall correspondingly be reduced by an amount equal to the reduction in such value allocated to Contractor.

3.2 Cost of the Work. "Cost of the Work" means those elements of costs described in this Section 3.2 up to the Guaranteed Maximum Price (subject to change only as provided in this Agreement) which are chargeable to Owner and payable to Contractor when reasonably, actually and necessarily incurred by the Contractor during proper performance of the Work, without mark-up or add on of any kind by or at the request of Contractor. Such costs shall be actual costs paid by Contractor less all discounts, rebates and salvages taken by Contractor. All amounts paid or payable as Costs of the Work shall be subject to verification by audit pursuant to Article 19 of this Agreement. Contractor covenants and agrees to use its best efforts to achieve the lowest price or cost reasonably available and consistent with the Contract Documents, for all Cost of the Work items. Costs of the Work shall be strictly limited to and include only the following items:

3.2.1 Contractor's Salaried Employees. Direct cost of amounts actually paid by Contractor for the salaries paid to Contractor's employees (excluding craft labor) while and only to the extent they are performing Work at the Site ("Personnel"), except to the extent approved otherwise by Owner, and at the rates set forth on Exhibit C attached hereto, including Contractor's actual costs of statutory payroll taxes and customary employee benefits to the extent stated in this Subsection 3.2.1, pro-rated for the time they are performing Work at the Site. Contractor shall submit to Owner all documentation necessary to support the referenced rate and benefits. Contractor's costs for bonuses, stock options, profit sharing arrangements and similar incentive programs shall be Non-Allowable Costs of the Work (except for amounts paid by Contractor into 401K plans for its designated Personnel, which amounts shall not exceed 4% of the respective employee's gross salary) and thus included within the Contractor's Fee. Contractor's rates shall exclude any elements of overhead or profit. Any changes to such chargeable personnel listed in Exhibit C attached hereto, during the course of the Work must be approved in advance and in writing by Owner. The Contractor shall submit a rate schedule for each of its personnel listed in Exhibit C attached hereto, for Owner's audit and approval, including any increases other than increases solely for annual standard cost of living adjustments and merit raises in Contractor's normal and customary practice, but not to exceed five percent (5%) annually, unless approved otherwise by Owner. Costs included in such proposed rates shall, however, be strictly limited to actual payroll costs including actual labor burden, and excluding any element for overhead or profit. Items covered by or included within the labor burden shall not be separately or otherwise included in Costs of the Work or billed to Owner.

3.2.2 Contractor's Site Craft Labor. Direct cost of amounts actually paid for Contractor's craft labor, including actual labor burden. Contractor shall submit hourly rates for both regular time and premium time hours for Owner's review and approval. In no event shall such rates exceed either those hourly rates specified in collective bargaining agreements applicable to such labor, including stated increases, or the amount actually paid by Contractor for such craft labor, unless approved in writing in advance by Owner.

3.2.3 Subcontractor and Vendor Costs. Direct cost of amounts actually paid by Contractor to its Subcontractors and Vendors for Work performed pursuant to subcontracts and purchase orders which have been reviewed and approved in advance and in writing by Owner (except to the extent Owner's prior written consent is not required pursuant to Section 9.3 of this Agreement).

3.2.4 Materials and Equipment Incorporated in the Work. Direct cost of amounts actually paid by Contractor for all materials and equipment incorporated into the Work by Contractor, including the actual direct costs of transportation and temporary storage (including any materials stored off-Site so long as the requirements of Section 5.13 of this Agreement are fulfilled to Owner's satisfaction). Contractor shall promptly disclose to Owner all relevant details regarding any such materials, equipment and other items if any of the foregoing is being provided for purchase by Contractor or any company which is a subsidiary or otherwise affiliated with Contractor or its parent company. Said costs shall be invoiced at actual prices, net of any available trade and quantity discounts. Contractor shall use its best efforts to achieve the lowest cost or price reasonably available and consistent with the Contract Documents. Any salvage value received by Contractor or any Subcontractor for any excess items paid for by Owner, to be determined prior to Owner's final payment upon Final Completion, shall reduce the Cost of the Work and be a credit to Owner.

3.2.5 Materials and Equipment Consumed at the Site. Direct cost of amounts actually paid by Contractor for all materials, equipment, supplies and small tools which are provided by Contractor at the Site and fully consumed at the Site during performance of the Work, including the direct costs of transportation and temporary storage on-site or pursuant to Section 5.13 hereof. Contractor shall promptly disclose to Owner all relevant details regarding any such materials, equipment and other items if any of the foregoing is being provided for purchase by Contractor or any company which is a subsidiary or otherwise affiliated with Contractor or its parent company. Said costs shall be at lowest rates reasonably available and consistent with the Contract Documents and invoiced at actual prices, including any available trade and quantity discounts. Contractor covenants and agrees to use its best efforts to achieve the lowest cost or price reasonably available and consistent with the Contract Documents. Any salvage value for any excess items paid for by Owner, to be determined prior to Owner's final payment upon Completion, shall reduce the Cost of the Work and be a credit to Owner.

3.2.6 Rental Equipment. Direct cost of amounts actually paid by Contractor for rental charges for all necessary construction machinery and equipment utilized at the Site, exclusive of small tools, but limited to the direct costs of transportation, delivery, installation, dismantling, removal, maintenance, and insurance. Contractor shall use its best efforts to achieve the lowest cost or price reasonably available and consistent with the Contract Documents. Contractor shall promptly disclose to Owner all relevant details if any such construction machinery or equipment is being provided, either for purchase or rental, by Contractor or any company which is a subsidiary or otherwise affiliated with Contractor or its parent company. The rental rates for any machinery and equipment owned by Contractor or an affiliated entity shall be agreed upon by Owner and Contractor in advance, and those rates are incorporated into the rate schedule which is attached to this Agreement as Exhibit D. Notwithstanding anything to the contrary in Exhibit D, the aggregate amount of rental costs charged for any individual piece of Contractor or affiliate-owned machinery or equipment shall be limited to 80% of its actual acquisition cost.

3.2.7 Site Office Costs. Direct cost of amounts actually paid by Contractor for Site office facilities and Site office general expenses, telephone services, long distance telephone calls, photocopying, postage, reasonable and customary petty cash expenses not to exceed $250.00 monthly, facsimile transmissions, office supplies, custom printing required by the Contract Documents, express and air courier mail delivery services, Site office equipment such as computers, telephones, copiers, facsimile machines, typewriters and similar items used in connection with the Work. Contractor shall use its best efforts to achieve the lowest cost or price reasonably available and consistent with the Contract Documents, provided, however, such costs shall be expressly limited to such of the foregoing items not otherwise made available or provided by Owner to Contractor at the Site. Contractor shall promptly advise Owner of any such Site office equipment which is charged to the Work and provide Owner with all purchase and rental agreements pertaining thereto for Owner's approval. Contractor shall promptly disclose to Owner all relevant details if any such Site office equipment is being provided, either for purchase or rental, by Contractor or any company which is a subsidiary or otherwise affiliated with the Contractor or its parent company. Such equipment shall be deemed Contractor owned equipment and a Cost of the Work only in accordance with Contractor's Equipment List attached hereto as Exhibit D. Any salvage value received by Contractor or any Subcontractor for any excess items paid for by Owner, to be determined as part of Final Completion, shall be a credit for Owner's account.

3.2.8 Sales and Use Taxes. Direct cost of amounts actually paid by Contractor for sales and use taxes for materials and equipment incorporated or consumed into the Work, plus on rental equipment used in the Work, that are imposed by governmental authorities and paid by the Contractor.

3.2.9 Bond Premiums. Direct cost of amounts actually paid by Contractor for premiums solely attributable to the Work for Contractor's Performance and Payment Bonds to the extent required by Owner, and direct amounts paid for Subcontractor bond premiums.

3.2.10 Course of Constructions Repairs. Actual and reasonable costs incurred and paid by Contractor in repairing minor damage to trade Work caused as a normal by-product during the course of construction and not attributable to the fault of Contractor, any Subcontractor or Vendor or covered by insurance.

3.2.11 Royalties. Royalties and license fees necessarily and reasonably incurred and paid by Contractor for an express design, process or product required by the Contract Documents in accordance with Section 7.20 hereof.

3.2.12 Other Costs. Other actual direct costs incurred in the performance of the Work, but limited solely to those costs which are approved in writing by Owner.

3.2.13 Miscellaneous Costs. Miscellaneous costs are chargeable as Costs of the Work only as follows:

3.2.13.1 Direct costs actually paid by Contractor for clean-up and removal of debris;

3.2.13.2 Direct costs actually paid to respond to an emergency affecting the safety of persons and property, and not the result of any act or omission of Contractor or any Subcontractor or Vendor or any party for whom any of the foregoing are responsible or liable at law or under the Contract Documents;

3.2.13.3 Direct costs actually paid by Contractor and approved by Owner for Site security services for protection of the Work;

3.2.13.4 Actual costs incurred by Contractor for blueprinting of Drawings as required by the Contract Documents and required postage, express mail and long distance costs in the performance of the Work; and

3.2.13.5 Except for the Major Permits which shall be Owner's responsibility to pay for, direct costs actually paid for building permit fees, including plan check fees, which are required by governmental authorities to be taken out in Owner's name for construction and completion of the Work, including temporary and final Certificates of Occupancy.

3.2.13.6 Direct costs actually paid by Contractor's Personnel reasonably incurred by such Personnel while traveling in the performance of the Work.

3.2.13.7 Losses and expenses not compensated by insurance and incurred by Contractor directly relating to the performance of the Work and not relating to or arising from the failure of Contractor or any Subcontractor or Vendor or any party any of the foregoing are liable or responsible for under the Contract Documents or at law, to comply with the Contract Documents or the negligence of any of the foregoing persons.

3.2.13.8 The cost of insurance premiums for the specific insurance coverages listed on Exhibit R carried by Contractor and Subcontractors relating to the Work and costs of insurance pursuant to Section 15.1.1 hereof, if applicable.

3.3 Non-Allowable Cost of the Work. "Non-Allowable Cost of the Work" mean the direct and/or indirect costs described in this Section 3.3 and all similar costs and all other costs not included within Costs of the Work, which are paid or incurred by Contractor during performance of the Work. All such Non-Allowable Costs of the Work are included in Contractor's Fee set forth in Subsection 3.1.1 above, regardless of whether they exceed the amount of such Contractor's Fee. Contractor shall not be entitled to receive any additional reimbursement for Non-Allowable Costs of the Work, including without limitation, any of the types of cost items described as follows:

3.3.1 The cost of any item not specifically and expressly included as a Cost of the Work in Section 3.2 above;

3.3.2 Costs in excess of the Guaranteed Maximum Price;

3.3.3 Salaries and all other compensation of the Contractor's personnel and representatives performing any function at any location whatsoever, except for those Personnel individually named as approved in Exhibit "C" attached hereto, and to the extent described therein;

3.3.4 All direct and indirect operating, maintenance and overhead costs of any nature whatsoever arising out of or in any way relating to any of the Contractor's principal or branch offices, including, but not limited to: office space; furniture and equipment which is dedicated to or reserved for use for the Work; leasing and rental costs; maintenance; local telephone; utilities; depreciation; security; office supplies; property taxes; the development of engineering and construction manuals, standards or computer programs; personnel training of any kind; and janitorial services; excepting only those actual and direct costs incurred and permitted to the extent described in Subsections 3.2.7 and 3.2.13 above;

3.3.5 Any expenses relating to Contractor's operating capital, including interest on the Contractor's capital employed in support of the Work (provided, however, as to interest, only so long as Owner timely pays amounts properly due and owing to Contractor in accordance with and subject to the Contract Documents);

3.3.6 All direct and indirect costs arising out of the fault or negligence of, or failure to comply with the terms of the Contract Documents or any subcontracts by, the Contractor, any Subcontractor or Vendor of any tier or anyone directly or indirectly employed by any of them, or for whose acts or omissions any of them are responsible or liable at law or under the Contract Documents;

3.3.7 All direct and indirect costs of any nature relating to work arising during the Warranty Period defined in Section 10.2 of this Agreement, for correction, removal, replacement or disposal of any non-conforming Work, materials or equipment to the extent defined in Article 10 of this Agreement;

3.3.8 All costs incurred by Contractor for bonuses, stock options, profits sharing arrangements and similar incentive programs (other than as provided in Section 3.2.1 with regard to 401K plans);

3.3.9 All direct and indirect costs of any nature resulting from or attributable to either delays, disruptions or interferences, excepting only for those costs which are expressly identified and permitted in accordance with Article 11 of this Agreement;

3.3.10 All direct and indirect costs of any nature resulting from or attributable to terminations, cancellations for convenience or suspensions, excepting only for those costs which are expressly identified and permitted in accordance with Article 17 of this Agreement;

3.3.11 Rental costs of Contractor or affiliate owned machinery and equipment, except as specifically provided in Subsection 3.2.6 of this Agreement;

3.3.12 All costs of business and/or operating permits, licenses, fees and taxes, required by any local, state or federal governmental authorities or labor agreements to enable the Contractor, its Subcontractors or Vendors of any tier to be qualified to do business and/or perform trade activities and/or any Work pursuant to the Contract Documents;

3.3.13 Costs of repairing defective or non-conforming Work or Work damaged by Contractor, Subcontractors, sub-subcontractors, materialmen, anyone directly or indirectly employed by any of them, or for those acts or omissions any of them are responsible or liable at law or under the Contract Documents, except to the extent provided in Section 3.2.10 hereof;

3.3.14 Costs incurred by Contractor in satisfying its indemnification obligations pursuant to Article 14 of this Agreement or any other Contractor indemnification provision of the Contract Documents;

3.3.15 Payments on account of materials, supplies, and equipment until delivered and suitably stored at the Site for subsequent incorporation or consumption in the Work, except as specifically provided in Section 5.13 of this Agreement (if, however, in Owner's reasonable opinion, such warehousing and storage costs are due to Contractor caused delays and/or poor sequencing of the Work by Contractor, these costs shall not be considered a Cost of the Work and will be at Contractor's sole cost and expense);

3.3.16 Costs incurred by Contractor relating to the preparation, response to or defense of any Claim for which Contractor or any Subcontractor or Vendor are liable or responsible at law or under the Contract Documents;

3.3.17 Any cost incurred by Contractor relating to a Change in the Work without a Change Order or Construction Change Directive (other than a Minor Change or unless approved otherwise in writing by Owner and Owner's Lenders);

3.3.18 Any Costs of the Work reimbursed by insurance to Contractor or any Subcontractor or Vendor;

3.3.19 The costs of any insurance premiums associated with the Owner's requirement that Contractor and Subcontractors carry insurance coverage beyond that provided by the OCIP (as defined in Article 15 of this Agreement), and the cost of any other insurance maintained by Contractor or any Subcontractor whether or not required by the Contract Documents (except that insurance described in Section 3.2.13.8 hereof); and

3.3.20 All other direct, indirect and/or overhead costs of any nature whatsoever, except as otherwise expressly provided to the contrary in the Contract Documents.

3.4 Contractor's Responsibility For Taxes. Other than direct cost of amounts actually paid by Contractor for sales and use taxes directly relating to materials and equipment incorporated or consumed into the Work and/or directly relating to rental equipment used in the Work that are imposed by governmental authorities and paid by the Contractor, it is expressly understood that no other taxes or duties (other than customs duties on equipment and material brought into the United States expressly and solely for incorporation or consumption in the Work and imposed by governmental authorities and paid by Contractor) of any nature whatsoever are considered Costs of the Work and that Contractor will not be separately reimbursed for, but Contractor shall be responsible for and shall timely pay, any other such taxes or duties whatsoever, including, but not limited to, federal, state and local taxes, duties, excise taxes, personal property taxes on construction equipment and other property owned or leased by Contractor, taxes on net income of Contractor, filing fees on taxes, business taxes, and similar taxes applicable to or arising directly or indirectly out of performance of the Work or Contractor's property, business or operations.

3.5 Discounts, Rebates and Refunds. All cash discounts (so long as Owner has made payment to Contractor to the extent advance or timely payment is necessary to obtain such cash discount), trade discounts, rebates and refunds obtained by Contractor during the course of the Work, and all amounts received from sales of surplus materials and equipment, shall accrue to Owner. Contractor shall take all necessary steps to obtain, secure and pass on such credits to Owner and all such discounts, rebates and refunds shall be fully reflected in Contractor's monthly Applications for Progress Payment submitted pursuant to Article 5 of this Agreement. Title to all materials, tools, and equipment paid for by Owner shall be vested in Owner. At the completion of the Work and when no longer required, such tools, equipment and materials as remain shall belong to Owner and be, as Owner may direct (a) sold at the direction of Owner and all sums and allowances realized credited against the Cost of the Work for all purposes under this Agreement or (b) delivered to Owner, all as Owner shall direct.

3.6 No Duplication. Notwithstanding the breakdown or categorization of any costs in this Article 3 or elsewhere in the Contract Documents, there shall be no duplication of payment in the event any particular items for which payment is requested can be characterized as falling into more than one of the types of compensable or reimbursable categories.

ARTICLE IV.
CONTRACT TIME AND INTERIM MILESTONE DATES

4.1 Definitions.

4.1.1 The term "day" means any calendar day including public holidays.

4.1.2 The "Notice to Proceed" means the written notice from Owner to Contractor providing Contractor with a "Date of Commencement" for the Work.

4.1.3 The term "Interim Milestone Dates" means either the fixed dates, or the fixed number of calendar days, available to Contractor to achieve the key schedule "Interim Milestones" identified in the Project Schedule.

4.1.4 The term "Contract Time" means the period of time between the Date of Commencement and Guaranteed Date of Substantial Completion, available to Contractor to achieve Substantial Completion of the Work in its entirety in accordance with Section 12.1 of this Agreement.

4.1.5 The term "Guaranteed Date of Substantial Completion" shall mean the date which is 910 calendar days from and after the Date of Commencement.

4.2 Time of the Essence. Contractor and Owner acknowledge that TIME IS OF THE ESSENCE with respect to their respective obligations under the Contract Documents, and that Owner's business interests will suffer substantial losses in the event that the Project is not completed within the Interim Milestone Dates and/or the Contract Time in accordance with and subject to the terms of this Agreement. Contractor hereby accepts and confirms that, subject to the terms of this Agreement, the Contract Time is reasonable for completing the Work and hereby agrees to dedicate such personnel and other resources as are necessary to assure that the Work is continuously managed and performed in a diligent, skilled and workmanlike manner. Notwithstanding any other provision of the Contract to the contrary, in the event Owner is unable to obtain financing satisfactory to Owner for the Project and Owner does not issue a Notice to Proceed, Owner shall have the right to terminate the Contract upon written notice to Contractor and such termination shall be treated as a termination for convenience by Owner pursuant to Section 17.2 hereof and the parties rights and obligations with regard to such termination shall be as provided for in Section 17.2 hereof. Owner and Contractor expressly intend that the provisions of Section 624 of Nevada Revised Statutes, including without limitation as to contractor and subcontractor remedies in the event of cessation or suspension of construction by an owner, do not apply to such termination by Owner of the Contract. ontractor will not commence or perform any Work prior to the Date of Commencement in Owner's Notice to Proceed.

4.3 Completion Guarantees. Subject to changes in the Contract Time which are mutually agreed to and finalized in accordance with the Contract Documents, Contractor hereby guarantees to cause the Work to be commenced on the Date of Commencement as provided in Section 4.1.2 hereof, and (a) to timely achieve each of the Interim Milestone Dates, and (b) to timely achieve Substantial Completion of the Work in its entirety in accordance with the requirements of Section 12.1 of this Agreement on or before the Guaranteed Date of Substantial Completion. Contractor's failure to achieve any of the Interim Milestone Dates or Substantial Completion by the Guaranteed Date of Substantial Completion, except pursuant to mutually agreed schedule extensions which are determined and finalized in Change Orders in accordance with the Contract Documents, shall be a material breach of this Contract and Contractor shall and hereby agrees to indemnify Owner for and against any and all costs, damages, expenses, losses, liabilities and obligations relating to and/or arising out of any such delay(s), provided, however, Contractor's liability to Owner under this Agreement relating to damages arising solely from delays in the Work caused by Contractor or for which Contractor is responsible or liable (as outlined in Section 4.4 below) shall not exceed the total amount of Nine Million Dollars ($9,000,000.00). The foregoing limitation on liability relating to delays shall not in any way limit Contractor's liability for any other act, omission, breach or default of Contractor, Subcontractor or any Vendor, shall only relate to damages actually suffered by Owner and shall not apply to or in any way limit Contractor's obligation to complete the Work for the Guaranteed Maximum Price, including, but not limited to, Contractor's responsibility for all costs in excess of the Guaranteed Maximum Price pursuant to the Contract Documents, nor shall the foregoing limitation on liability in any way apply to or limit in any way any of Contractor's obligations and covenants under Section 11.8 hereof, including, without limitation, Contractor's obligation to provide and implement any Recovery Plan and/or take all available steps to overcome or mitigate against the adverse effects of all delays identified by Owner.

4.4 Liquidated Damages. If Substantial Completion of the Work is not achieved by the Guaranteed Date of Substantial Completion, as such time period is adjusted pursuant to the Contract Documents, Contractor acknowledges and agrees that Owner will suffer significant damages. Accordingly, if Substantial Completion of the Work is not achieved by the Guaranteed Date of Substantial Completion, Contractor shall pay to Owner on demand (or, at Owner's option Owner may deduct, withhold and/or set off the whole or any portion of the following liquidated damages amounts

from or against any amounts then or thereafter payable or due to Contractor from Owner), as liquidated damages and not as a penalty, the amount of:

4.4.1 Three Hundred Thousand Dollars ($300,000.00) per day for each day of delay from and after the fifth (5^th) day after Guaranteed Date of Substantial Completion until Substantial Completion is achieved, up to a total amount of Nine Million Dollars ($9,000,000.00).

4.4.2 Owner and Contractor hereby agree that it would be impractical or impossible to fix actual damages in the case of Contractor's default of its obligation to cause Substantial Completion to be completed within the Contract Time and also agree to stipulate that Owner's loss in the case of any such default will be deemed equal to the amounts set forth herein as liquidated damages for the specific periods set forth in Section 4.4.1 above, which amounts both parties agree are reasonable estimates of Owner's actual damages in such event.

4.4.3 Notwithstanding the provisions of this Section 4.4, the foregoing liquidated damages shall not apply to or limit in any way any of Contractor's obligations and covenants under Section 11.8 hereof, including, without limitation, Contractor's obligation to provide and implement any Recovery Plan and/or take all available steps to overcome or mitigate against the adverse effects of all delays identified by Owner.


Contractor's Initials		Owner's Initials

4.5 Early Completion. If Substantial Completion of the Work is achieved by Contractor prior to the Guaranteed Date of Substantial Completion, as such Guaranteed Date of Substantial Completion may be adjusted pursuant to the Contract Documents, and Contractor has fully and timely performed all of its obligations under the Contract Documents and is not in default or breach thereunder, Contractor shall be entitled to an early completion bonus payment (in addition to Contractor's Fee), to be paid to Contractor concurrently with the Final Payment (as defined in Section 5.8 hereof), in the amount of $50,000 per day for each day, up to but not to exceed twenty (20) days for a maximum total early completion bonus payment of One Million Dollars ($1,000,000.00), that the Contractor achieves Substantial Completion of the Work in advance of the Guaranteed Date of Substantial Completion. The early completion bonus will only be owed to Contractor if Contractor is able to accelerate the Substantial Completion of the Work without the use of overtime labor funded as Costs of the Work or other increase in the Cost of the Work which is incurred or arranged with the intent to achieve Substantial Completion prior to the Guaranteed Date of Substantial Completion.

4.6 Guaranty of Completion and Performance, and Financial Information.

4.6.1 Guaranty. Concurrent with the mutual execution of this Agreement, Contractor shall cause Austi, Inc. ("Guarantor") to execute and deliver to Owner a Continuing Guaranty ("Guaranty") in the form of Exhibit Q attached hereto, whereby Guarantor absolutely and unconditionally guarantees to Owner each and all of Contractor's obligations under the Agreement, as limited therein, and Contractor shall further cause Guarantor to execute a consent to the assignment of the Guaranty by Contractor to Owner's Lenders.

4.6.2 Financial and Other Information; Indemnification and Contribution.

4.6.2.1 Financial and Other Information. The Contractor and the Guarantor hereby agree, jointly and severally, to prepare and provide, or to cause to be prepared and provided, promptly for inclusion in (i) the registration statements (collectively, the "Registration Statements"), any preliminary prospectus or prospectus (or any amendment or supplement thereto) (such preliminary prospectuses and prospectuses, collectively, the "Prospectuses") and any preliminary or final offering memorandum or other similar disclosure document (or any amendment or supplement thereto) (collectively, the "Other Disclosure Documents") with

respect to the public offerings or private placements of equity or debt securities of an entity to be formed as a parent entity of Valvino Lamore, LLC and/or any parent or subsidiary entities thereof (collectively, the "Company"), and (ii) any materials prepared in connection with any senior credit financings of the Company (the "Financing Materials"), the audited balance sheets of each of the Contractor and the Guarantor (together, the "Contractor Parties") for the most current fiscal year and unaudited balance sheets for the most recent fiscal quarter of each of the Contractor Parties. The Contractor Parties will also provide such information expressly requested in written comments promulgated by the Securities and Exchange Commission (the "SEC") (such information, together with the balance sheets described in the preceding sentence, shall hereinafter be referred to as the "Authorized Information"). The Contractor Parties will also provide such additional material requested in writing by the Company that is reasonably necessary to provide to the Underwriters, Initial Purchasers, Placement Agents or Lenders (each as hereinafter defined) (such information hereinafter referred to as the "Other Information") to effect the financing of the Le Rêve project. Notwithstanding the previous sentence, the Other Information is solely provided for the information of such Underwriters, Initial Purchasers, Placement Agents or Lenders and no representation and warranty is provided regarding the Other Information except as otherwise expressly provided in Section 4.6.2.1(iv) hereof. The Authorized Information and the Other Information are hereinafter referred to collectively as the "Information". The Contractor Parties hereby represent and warrant to the Company, jointly and severally, that (i) the financial statements comprising the Authorized Information shall present fairly the financial condition of the Contractor Parties at the dates indicated and, if applicable, the results of the operations of the Contractor Parties for the periods specified and that, since the respective dates as of which the financial statements are given in, and as of the date of, the Registration Statements, Prospectuses, Other Disclosure Documents and/or Financing Materials, there shall have been no material adverse change in the condition, financial or otherwise, or in the earnings, affairs or business prospects of the Contractor Parties, whether or not arising in the ordinary course of business, except as otherwise stated therein, (ii) the financial statements comprising the Authorized Information have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto, (iii) the auditors who have expressed their opinion with respect to the audited financial statements comprising the Authorized Information are independent public or certified public accountants as required by the Securities Act (as defined below) and (iv) the Other Information to be provided pursuant to this Section 4.6.2.1 shall be true and correct in all material respects and shall not contain any untrue statement of a material fact or omit any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

4.6.2.2 Use of Information. The Contractor Parties hereby agree that the Company shall have the right to include the Authorized Information in the Registration Statements, Prospectuses, Other Disclosure Documents and Financing Materials. The Company and its underwriters (including, without limitation, Deutsche Bank Securities, Inc.) (each an "Underwriter" and collectively, the "Underwriters"), initial purchasers (each an "Initial Purchaser" and collectively, the "Initial Purchasers"), placement agents (each a "Placement Agent and collectively, the "Placement Agents") and senior credit lenders or managing agents (each a "Lender" and collectively, the "Lenders"), and their respective representatives, shall have the right to investigate the financial condition and results of the operations of the Contractor Parties and the accuracy of the Authorized Information provided pursuant to Section 4.6.2.1; provided, however, that, notwithstanding such right to investigate such financial condition, results of operations and Authorized Information, each of the Company, the

Underwriters, the Initial Purchasers, the Placement Agents and the Lenders has the right to rely fully upon the Authorized Information provided pursuant to Section 4.6.2.1 and on the representations, warranties, covenants and agreements of the Contractor Parties contained herein. In providing financial statements comprising the Authorized Information for inclusion in the Registration Statements, Other Disclosure Documents and Financing Materials, the Contractor Parties agree, at their expense, to cause their independent accountants promptly to file with the SEC and deliver to the Company, the Underwriters, Initial Purchasers, Placement Agents or Lenders, any written consents of such accountants consenting to the inclusion in the Registration Statements, Other Disclosure Documents and Financing Materials of such financial statements, including the audit report(s) relating thereto, that the Company shall deem necessary or prudent. The Owner will reimburse the Contractor Parties for all costs incurred by them for the preparation of unaudited balance sheets for the most recently ended fiscal quarter of the Contractor Parties.

4.6.2.3 Indemnification by the Owner. The Owner agrees to indemnify and hold harmless (i) the Contractor, (ii) the Guarantor, (iii) each of the directors, officers and employees of the Contractor or the Guarantor and (iv) each person, if any, who controls the Contractor or the Guarantor (each of the Contractor, the Guarantor and such directors, officers and employees and controlling persons, is referred to individually as a "Owner-Indemnified Party", and are collectively referred to as the "Owner-Indemnified Parties") against any loss, claim, damage, liability or expense as a result of a claim brought by a third party, as incurred, to which a Owner-Indemnified Party may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise, insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon the untrue statement or alleged untrue statement of a material fact contained in the Registration Statements, Prospectuses, Other Disclosure Documents or Financing Materials, or arises out of or is based upon the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing indemnity shall not affect the Company's ability to seek recovery for any loss, claim, damage, liability or expense incurred by the Company for breaches of the representations and warranties made by the Contractor Parties under Section 4.6.2.1 hereof. Notwithstanding anything to the contrary in this Section 4.6.2, the Owner shall not have any obligation to indemnify any Owner-Indemnified Party with respect to any loss, claim, damage, liability or expense as a result of a claim brought by any accountant of any Owner-Indemnified Party, to which a Owner-Indemnified Party may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise.

4.6.2.4 Notifications and Other Indemnification Procedures. Each indemnified party shall give written notice to each indemnifying party promptly after such indemnified party has actual knowledge of any claim as to which indemnity may be sought; provided, however, that the failure of any indemnified party so to notify any indemnifying party will not relieve any indemnifying party from any liability which it may have to any indemnified party under this Section 4.6.2, except to the extent that the indemnifying party's ability to defend against such action is actually and materially prejudiced as a proximate result of such failure. In case any such action is brought against an indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party shall assume the defense thereof and the indemnified party shall have no right to conduct the defense thereof. Upon the indemnifying party's assumption of the defense of such action, the indemnifying party will not be liable to such indemnified party under this Section 4.6.2 for any legal or

other expenses subsequently incurred by such indemnified party in connection with the defense thereof.

4.6.2.5 Further Assurances; Cooperation.

(a): Contractor Parties. Each Contractor Party hereby agrees that, at any time and from time to time after the date hereof, it shall execute and deliver such documents and instruments and take such other actions as the Company may reasonably request in order to confirm such Contractor Party's obligations and representations and warranties under Section 4.6.2 to the Company.
(b): Owner. The Owner hereby agrees that, at any time and from time to time after the date hereof, it shall execute and deliver such documents and instruments and take such other actions as the Contractor may reasonably request in order to confirm the Owner's obligations under this Section 4.6.2 to the Contractor directly.

4.6.2.6 No Effect on Construction Contract Obligations. The parties to this Agreement acknowledge and agree that this Section 4.6.2 shall not affect any other cause of action that any party may have under this Agreement.

ARTICLE V.
PAYMENTS TO CONTRACTOR

In consideration of Contractor's performance of the Work in full compliance with the Contract Documents, Owner shall pay Contractor over the course of and in proportion to the Work completed as follows:

5.1 Schedule of Values. Within twenty-one (21) calendar days after the Date of Commencement for the Work, Contractor shall submit to Owner and Owner's Lenders an initial "Schedule of Values" for the Work, allocating values among all categories or portions of the Work. The Schedule of Values shall be prepared in such form and supported by data to substantiate its accuracy to the extent as Owner may require, shall be based upon the latest cost information available to Contractor, and shall be subject to Owner's approval which approval shall not be unreasonably delayed. By way of example and not by limitation, the Schedule of Values should include and delineate: (a) each subcontract and major component thereof; (b) each significant purchase order and the installation costs for all procured materials and equipment, so that logical and realistic cost breakdowns are established and set forth for all facilities, phases, areas, trade disciplines, utility and electrical systems, FF&E items and major components thereof. The Owner accepted Schedule of Values shall be used as a basis for the Contractor's Applications For Progress Payments described in Section 5.2 below. Owner shall have the right to reject all or any portion of the Schedule of Values which Owner determines does not accurately define the Work in reasonable detail, or if the detail provided does not accurately reflect an appropriate cost, allocation or proportion of the Work. At any time and from time to time if it reasonably appears to Owner that any aspect of the Schedule of Values is incomplete or inaccurate, and following any Change Order or Construction Change Directive, the Schedule of Values shall be adjusted by Contractor, in each case subject to Owner's written approval, to reflect accurately the values of the various portions of the Work.

5.2 Applications For Progress Payments.

5.2.1 Format of Applications

5.2.1.1 On or before the first (1^st) day of each month, Contractor shall submit to Owner and Owner's Lenders an initial draft of Contractor's Application for Progress Payment for the previous month.

5.2.1.2 On or before the fifth (5^th) day of each month, Contractor shall submit to Owner and Owner's Lenders a fully completed Application For Progress Payment for the previous month in a format reasonably satisfactory to Owner and supported by such documentation to verify entitlement as Owner and Owner's Lenders may reasonably require, and certified by Contractor as correct. Each Application for Progress Payment shall be sequentially numbered, and shall clearly identify, itemize and attribute all Costs of the Work in a manner which facilitates review by Owner. Such Applications for Progress Payment may only request payment for Costs of the Work actually incurred prior to the date of such Application for Progress Payment and may not 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. Contractor shall not submit more than one Application for Progress Payment per month, unless otherwise requested by Owner. In addition, each Application for Progress Payment shall separately identify and itemize the following:

(a): Work performed during such preceding calendar month.
(b): Amounts due for Contractor's initial scope of Work satisfactorily completed during the preceding month as measured by the Contractor's direct and actual costs incurred in accordance with the Cost of the Work described in Section 3.2 of this Agreement, a list of all bills for supplies, materials, equipment, and fixtures incorporated in the Work (in detail reasonably sufficient to allow Owner to determine where each item is incorporated) and labor performed (in detail reasonably sufficient to allow Owner to determine where and on what portion of the Work the labor was performed, including, but not limited to, weekly labor payrolls with names, dates, hours and rates) in connection with the Work, together with copies of the actual bills to be paid.
(c): For each category and portion of the Work as shown on the Schedule of Values: (1) the amount requested on all previous Applications for Progress Payment, (2) the amount requested on the current Application for Progress Payment, and (3) the amount allocated to the Work yet to be completed.
(d): The percentage completion of each portion of the Work as of the end of the period covered by the Application for Progress Payment, shown as the percentage obtained by dividing (a) the expense which has actually been incurred by Contractor on account of that portion of the Work for which Contractor has made or intends to make actual payment prior to the next Application for Progress Payment, by (b) the amount allocated to that portion of the Work in the Schedule of Values.
(e): Amounts due which are attributable to the Contractor's Fee earned as a result of the completion of Contractor's scope of Work during such period covered by and included in the Application for Progress and approved by Owner. Under no circumstances shall Contractor include in any Application for Progress Payment, nor shall Owner be required to pay, an Application for Progress Payment for funds to pay an amount in excess of the then applicable pro rata portion of the Contractor's Fee, using the ratio that the portion of the Work then completed bears to the total Work (as determined by the total Costs of the Work disbursed to date compared to the total approved Costs of the Work amount on the Schedule of Values).
(f): For all amounts due as the result of Change Orders and Construction Change Directives, the Contractor shall make submittals for each Change Order and Construction Change Directive.

(g): Reflect Retainage in the amount provided for pursuant to Section 5.6 of this Agreement.
(h): Such additional information and documentation regarding the progress of the Work as Owner or Owner's Lenders may reasonably require.

5.2.2 Substantiation of Costs. Contractor shall support its Applications For Progress Payment with relevant documentary evidence for cost verification purposes as Owner and Owner's Lenders may reasonably require. This obligation shall include providing Owner with such supporting documentation as necessary to enable Owner to verify Costs of the Work submitted pursuant to Section 3.2 of this Agreement, including any Costs of the Work attributable to Change Orders or Construction Change Directives. To the extent requested by Owner, this shall include providing audit access to Contractor's books and records to the extent described in Article 19 of this Agreement. All blanks and columns in the Application for Progress Payment must be completed. Except with Owner's prior written consent pursuant to Sections 5.11 and 5.13 of this Agreement, Contractor shall not make advance payments to suppliers and shall not be entitled to reimbursement for the cost of any equipment or materials which have not been delivered and incorporated into the Project or stored at the Site.

5.2.3 Additional Costs For Change Orders and Claims. Except for Construction Change Directives which specify additional Costs of the Work are to be paid, or pursuant to an Owner signed Change Order, Owner shall not have any obligation to pay any amounts to Contractor or any Subcontractor or Vendor for work outside the scope of Contractor's Work.

5.2.4 Lien Waivers. Each Application for Progress Payment shall include signed and acknowledged (by a notary) Conditional Waivers and Releases of Lien Upon Progress Payment in the form attached hereto as Exhibit H from Contractor and each Subcontractor, and each Vendor with regard to Work that is covered on the Application for Progress or Final Payment, and signed and acknowledged (by a notary) Unconditional Waivers and Releases of Liens Upon Progress Payment in the form attached hereto as Exhibit I from Contractor and each Subcontractor, and each Vendor with regard to Work that was covered by the immediately preceding Application for Progress Payment. Owner's receipt of such executed and acknowledged waivers shall be a condition precedent to Owner's obligation to pay any amounts pertaining thereto. 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 indorsements to their respective title insurance policies insuring the lien free status of the Work and Site (Contractor's failure to cause the title insurer to provide the required indorsement(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 $1,000,000. 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 an Application For Progress Payment have been paid.

5.2.5 Certificates. Each Application for Progress Payment (and for Final Payment) shall include a "Contractor's Certificate," in form and substance identical to Exhibit J attached to this Agreement, signed by Contractor.

5.3 Time of Payments. Subject to the terms of the Contract Documents, Owner shall make to Contractor progress payments properly due and undisputed based on an approved Application for Progress Payment within twenty (20) calendar days after receipt of such fully completed Applications

For Progress Payment which are submitted along with all requirements under Section 5.2 above, and substantiated in accordance with Subsection 5.2.2 above, and otherwise reasonably satisfactory to and approved by Owner and Owner's Lenders, less any amounts that may be retained or withheld pursuant to the Contract Documents. This Section 5.3 shall constitute a "schedule for payments" as described in Section 624.609(1)(a) of Nevada Revised Statutes.

5.4 Owner's Right To Withhold. Notwithstanding anything to the contrary herein, and in addition to Retainage, Owner may, upon written notice to Contractor, withhold from any payments otherwise due to the Contractor (including Final Payment), up to one hundred percent (100%) of the amount which, in Owner's opinion, is necessary to protect Owner against or compensate Owner for any and all damages, costs, lawsuits claims, overpayments, expenses and losses attributable to any of the items or circumstances listed below in this Section 5.4, including, 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 not be deemed in default by reason of withholding payment under this Agreement in good faith. Contractor shall not be entitled to receive payment on any Application for Progress Payment that is inaccurate or incomplete or that contains any material misrepresentation. The rights and remedies of Owner under this Section 5.4 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.

5.4.1 The overall percentage of Work satisfactorily completed by Contractor and each relevant Subcontractor and/or Vendor (determined by comparing the amount of Work satisfactorily completed to the total amount of Work to be completed), is less than the overall percentage of payments determined by comparing (i) the sum of (a) all amounts previously paid by Owner; and (b) the pending invoice to be paid, to (ii) the total amount of the Cost of the Work within the Guaranteed Maximum Price.

5.4.2 Contractor's failure to perform the Work in accordance with the Contract Documents, including, without limitation, failing to comply with any applicable Laws, failure to submit or carry out Recovery Plans in accordance with Section 11.8 of this Agreement, and/or failure to maintain insurance in compliance with the requirements of this Agreement.

5.4.3 Defective Work not remedied in a timely manner after receipt of notice from Owner during the course of the Work or during the Warranty Period, as applicable. If any Work inspected by Owner is not to Owner's reasonable satisfaction in accordance with the Contract Documents, a condition of any additional payments to Contractor shall be the correction of any such unsatisfactory Work to Owner's reasonable satisfaction in accordance with the Contract Documents.

5.4.4 Reasonable evidence of the failure by Contractor to make timely or properly due payments to Subcontractors or Vendors.

5.4.5 Contractor's failure to submit lien waivers as required pursuant to Subsection 5.2.4 above.

5.4.6 The filing by Contractor or any Subcontractor or Vendor of mechanic's liens or other claims relating to the Work against Owner, the premises of Owner, the Project and/or the Site, or the making or filing of any claim by any other party arising out of or relating to the Work or acts or omissions of Contractor, any Subcontractor or any other person for whose acts Contractor is responsible or liable at law or under the Contract Documents, except for those liens filed as a result of Owner's failure to make payment when due to Contractor under the Contract.

5.4.7 Contractor's failure expeditiously to remove mechanic's liens filed against the premises of Owner and/or the Site by Contractor or any Subcontractor or Vendor, except for those liens filed as a result of Owner's failure to make payment when due to Contractor under the Contract.

5.4.8 The existence of Work, including Punch List Items, not fully completed or corrected after either Substantial or Final Completion.

5.4.9 Any failure by the Contractor to provide timely access to the Contractor's books and records for audit purposes to the extent described in Article 19 of this Agreement.

5.4.10 Any failure by Contractor to provide the Schedule Updates as required by Article 11 of this Agreement or failure to submit Applications For Progress Payments consistent with the Schedule of Values.

5.4.11 Owner's or Owner's Lenders' good faith belief based on reasonable evidence that the Work cannot be completed for the unpaid balance of the Guaranteed Maximum Price.

5.4.12 Regarding any particular portion of the Work as shown on the Schedule of Values, any amount requested that is attributable to a portion of the Work not actually completed.

5.4.13 Owner's or Owner's Lenders' good faith belief based on reasonable evidence that the Work will not be completed within the Contract Time.

5.4.14 Damage to property or Work or injury to persons attributable to the acts or omissions of Contractor, any Subcontractor or any person for whose acts or omissions Contractor is responsible or liable at law or under the Contract Documents.

5.4.15 Deviations from the Contract Documents other than those approved or permitted in accordance with the Agreement without an applicable Change Order or Construction Change Directive.

5.4.16 Any material breach or default or failure to perform by Contractor under the Contract Documents, including without limitation failure to maintain any required insurance, or any material inaccuracy in any of Contractor's representations or warranties.

5.4.17 A determination by Owner to nullify in whole or in part a prior approval of an Application for Progress Payment and/or prior payment made, because of subsequently discovered evidence or subsequent observations which otherwise would allow Owner to withhold pursuant to this Section 5.4 or elsewhere in the Contract Documents.

5.4.18 Owner's Lenders' inability (if not the fault of Owner) to obtain (1) one or more title insurance endorsements to the Owner's Lender's title policy, showing no intervening or other liens, lien rights or encumbrances upon the Site or any improvements relating to the whole or any portion of the Work prior to any Lender Liens (as defined in Section 24.2 of this Agreement), other than those approved in writing by Owner's Lender, and insuring the full amount of the disbursement and its priority satisfactory to Owner and Owner's Lenders, 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 24.2 of this Agreement.

5.4.19 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 Site, 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 Final Completion on or before the Contract Time.

5.4.20 It shall be a condition precedent to all payments to Contractor following the date that certificates of occupancy (or any other equivalent permits required for occupancy and use) are obtainable for the whole or any part of the Project prior to Final Completion, that Contractor obtain and deliver to Owner all such permits when they are first available to be obtained (unless due to the fault of Owner such certificates are not obtainable).

5.4.21 Encroachments by any part of the Work being constructed on the Site outside the boundaries of the Site.

5.4.22 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 Laws (as defined in Section 7.2 hereof), 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.

5.4.23 The existence of Disputed Claim Amounts (as defined in the Contractor's Certificate) in excess of $75,000.00, in the aggregate on any one Application For Progress Payment.

5.4.24 Contractor's failure to comply with the requirements of Section 5.13 of this Agreement relating to off-Site materials.

5.5 Joint Payee Checks. Owner shall have the right at any time and from time to time upon notice to Contractor, to issue one or more checks for portions of a progress payment and Final Payment which are payable jointly to Contractor and its Subcontractors or Vendors of any tier or the parties owed. This right includes, but is not limited to, issuing jointly payable checks in circumstances where a dispute exists between Owner and Contractor with respect to the value of any partially or fully completed Work, including disputed Change Proposal Requests and Claims, and circumstances where Contractor has failed to provide lien waiver documents as required herein. Any such checks are forwarded to Contractor for further handling. 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, except as are permitted under the Contract Documents, Owner shall have the right (but not the obligation) to make payments directly for any and all such labor, materials, or equipment and to deduct the amount of such payment from any payments otherwise due Contractor and from the Guaranteed Maximum Price. Owner shall have the right upon five (5) days prior written notice to stop the performance of the Work by Contractor until payment of all amounts due and owing has been made, provided, however, Owner shall not have any duty to stop the Work.

5.6 Retention. From each Progress Payment made by Owner on an approved Application for Progress Payment, Owner shall retain and withhold as "Retainage," ten percent (10%) of the approved amounts to be paid to all Subcontractors (whether through Contractor or directly). Notwithstanding the foregoing, no Retainage shall apply to (a) Contractor's Fee, (b) premiums for Contractor's Payment and Performance Bonds required of Contractor pursuant to the Contract, or (c) approved amounts to be paid to Contractor for Contractor's direct Costs of the Work (exclusive of amounts to be paid to Subcontractors directly or through Contractor). All such Retainage shall be released as part of the Final Payment to Contractor. After fifty percent (50%) of the scope of the Work has been satisfactorily completed, Owner may elect to reduce the level of Retainage withholding in the event that Owner, in its sole discretion, determines that Contractor, its Subcontractors and/or Vendors are satisfactorily performing the Work in accordance with the Contract Documents, including but not limited to, achieving Interim Milestones Dates.

5.7 Substantial Completion Payment. Payment by Owner upon Substantial Completion shall be in consideration of Contractor's unconditional covenant and agreement to complete all final Punch List Items. Owner may retain a sum equal to one hundred and fifty percent (150%) of the costs estimated by Owner necessary to complete any such Punch List Items. Thereafter, Owner shall pay to the Contractor monthly the amounts retained for such Punch List Items to the extent that each Punch List Item is satisfactorily completed by Contractor and accepted by Owner.

5.8 Final Payment. Contractor's "Application For Final Payment" shall be submitted in accordance with the following:

5.8.1 "Final Payment" shall mean the payment to Contractor of all amounts due and owing and remaining to be paid to Contractor under the Contract Documents, including any Retainage, based on Contractor's Application for Final Payment and Owner's Certificate of Final Completion. Final Payment shall not be due, and Contractor's Application for Final Payment shall not be considered, until the Contractor completes all of the Work in accordance with the Contract Documents including all prerequisites for a Certificate of Final Completion pursuant to Section 12.2 of this Agreement.

5.8.2 Owner will have no obligation to make the Final Payment as long as any unresolved mechanic's liens or claims exist relating to Owner's property, the Site or the Project, regardless of whether such liens or claims are filed or made by Contractor, any Subcontractor or Vendor or any other party relating to the Work; unless and until as directed by Owner, Contractor obtains and records appropriate lien releases acceptable to Owner and Owner's Lenders, or provides Owner and Owner's Lenders with indemnities acceptable to Owner and Owner's Lenders and/or bonds around any mechanic's lien in a manner acceptable to Owner and Owner's Lenders, all in accordance with Section 7.19 hereof.

5.8.3 The Application For Final Payment shall include a statement of all unresolved Claims as defined in Article 20 of this Agreement (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 by Contractor with this Agreement.

5.8.4 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 Application For Final Payment 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 Application For Final Payment.

5.8.5 Upon Owner's concurrence that all conditions listed in Section 12.2 of this Agreement have been fulfilled and that the balance set forth in the Application For Final Payment is due and payable, Owner shall make Final Payment to Contractor in accordance with Section 5.3 of this Agreement.

5.8.6 Final Payment shall not relieve Contractor of any warranty obligations (including, without limitation, warranty obligations) contained in the Contract Documents or at law.

5.8.7 The making of Final Payment by Owner shall constitute Owners acceptance of the Work and shall be a waiver of Claims by Owner under the Contract Documents, except to the extent of any conditions or reservations and/or Claims set forth in writing by Owner at or prior to the time of Final Payment, and except to the extent of any claims relating to any of the following,

whether known or unknown at the time of Final Payment (i) any liens or encumbrances, (ii) any matter for which Contractor or any Subcontractor or Vendor is liable or responsible at law, (iii) any obligations or liability relating to Contractor's warranties provided in the Contract Documents (including Contractor's obligations under Article 10 hereof), (iv) Contractor's representations, warranties and obligations under Sections 3.4, 3.6, 4.6.2, 7.2 (a)&(g), 7.2.1, 7.2.11, 7.2.12, 7.20, 13.2.3, 14.1.1, 14.2, 14.3 (last sentence), 14.4, 16.2, 24.7, and Articles 19 and 23 of this Agreement, (v) failure of the Work to comply with the Contract Documents, or (vi) any breach or inaccuracy of any of Contractor's representations or warranties under the Contract Documents, any Contractor Certificate or under any affidavit, certificate or other instrument or document provided to Owner or any of Owner's Lenders.

5.9 Disputed Payments. When the reason(s) for withholding payment are removed to Owner's reasonable satisfaction, Owner will pay such previously withheld amounts (less amounts properly withheld or retained) with the next regularly scheduled payment. In the event of a dispute with respect to amounts payable under an Application For Progress Payment or the Final Payment, Owner shall pay all undisputed amounts. If Contractor disputes any determination by Owner with regard to any Application for Progress Payment or any withheld amounts, Contractor shall nevertheless expeditiously continue to prosecute the Work. Any amounts in dispute and withheld by Owner shall be promptly paid after the earlier of: (a) settlement of the dispute by execution of a final Change Order document; or (b) final resolution of the dispute pursuant to Article 22 of this Agreement. The payment of any undisputed amounts shall not waive or otherwise limit Owner's rights as set forth in this Agreement, including, but not limited to, in Article 19 below.

5.10 Ownership of Materials. All material and work covered by progress payments made shall upon such payment become the sole property of Owner, however the Contractor shall not be relieved from the risk of loss and responsibility for all material and Work upon which payments have been made or the restoration of any damaged Work (Contractor's risk of loss, however, shall be subject to the terms and provisions of the OCIP). Contractor represents and warrants to Owner that (i) title to all of the Work, materials and equipment covered by any Application for Progress Payment 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 (Contractor's risk of loss, however, shall be subject to the terms and provisions of the OCIP); and (iv) no Work covered by an Application for Progress Payment and no material or equipment incorporated in the Work will have been acquired or incorporated into the Work, subject to an agreement under which an interest in the Work or an encumbrance on the Work is retained by the seller or otherwise imposed by Contractor or such other person.

5.11 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 Costs of the Work and then to the payment of the Contractor's Fee. 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 are deemed advisable by Owner or Contractor, provided such purchases in excess of $200,000.00 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.

5.12 Waiver. Owner's allowance or payment of any item pursuant to any Application for Progress Payment or otherwise shall not constitute approval of the Work or the Application for Progress Payment, or result in Owner's waiver of any claims, all of Owner's rights being specifically reserved, and no such payments shall operate as an admission on the part of Owner as to the propriety or accuracy of any amounts on such Application for Progress or Final Payment (except Final Payment shall constitute a waiver by Owner only to the extent provided in Section 5.8.7 hereof). 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. Owner shall not be bound by any entries in previous Applications for Progress Payment and shall be permitted to make corrections for errors therein. Owner's Final Contractor's Fee installment payment and Final Payment shall in no way relieve Contractor of any obligations or responsibilities under the Construction Documents which extend beyond the date of such payment.

5.13 Materials Off-Site. All materials which are the subject of an Application for Progress Payment (or Application for Final Payment, if applicable) 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 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:

5.13.1.1 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;

5.13.1.2 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;

5.13.1.3 cause to be delivered to Owner any applicable bailee waivers where such bailee rights exists, and the original warehouse receipt 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

5.13.1.4 if Contractor shall fail to perform any of its obligations under this Section 5.13 after Owner has made payment to Contractor for the materials, Owner or Owner's Lender may, but shall not be obligated to, take such actions and expend such sums as are necessary in Owner's judgment to protect and preserve 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 and shall be Non-Allowable Costs of the Work.

ARTICLE VI.
OWNER'S RESPONSIBILITIES

6.1 Information and Services. Owner shall, at such times as are reasonably required for the successful and expeditious completion of the Work, provide Contractor with information and services at Owner's expense as follows:

6.1.1 Purchase and deliver to Contractor in accordance with the Project Schedule (and after timely and due notice from Contractor to Owner of a schedule of delivery dates for such items), the material and equipment to be provided by Owner for installation by the Contractor;

6.1.2 Owner has already provided to Contractor surveys describing physical characteristics of the Site including the location of known utility pipelines and wiring conduits; and Owner will continue to provide Contractor with copies of subsequent surveys of the Site as they become available;

6.1.3 Pay for (a) utility connection fees, and (b) alterations to existing structures at the Site required by governmental authorities as a pre-condition of issuing building permits for the Work;

6.1.4 To the extent described in Section 7.11.2 below, pay for on-Site and off-Site testing, inspections and approvals specifically required for the Work by applicable Laws;

6.1.5 Pay for all Major Permits for the Work (though it is Contractor's obligation to obtain, so long as Owner pays for such Major Permits) subject to Section 1.12 hereof;

6.1.6 Pay for all necessary construction utilities at the Site; and

6.1.7 Pay all real property taxes assessed against the Work.

6.2 Limitations. Information on the Site and local conditions affecting the Site and any and all other information, reports, studies, surveys and materials provided by Owner pursuant to Section 6.1.2 above or otherwise, is furnished 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 disclaims all such warranties, guarantees and representations. Except to the extent set forth in Article 13 below, and except to the extent the information and materials supplied by Owner contain inaccurate information that was not known to Contractor to be inaccurate (and such inaccuracy would not have been reasonably discovered by Contractor in the exercise and/or performance of its obligations under the Contract Documents), Contractor assumes the risk of such conditions and shall fully complete the Work at no additional cost to Owner and within the Contract Time (subject to Contractor's right to use the Construction Contingency as provided in Section 3.1.6 hereof, to the extent there remain funds therein, and regardless of whether any funds remain in the Construction Contingency, Contractor shall still be liable for such costs).

6.3 Project Representative. Owner has designated Todd Nisbet and Kenn Wynn, each as its "Project Representative" to be Owner's authorized representative (either acting alone) to provide approvals and directives necessary for the day-to-day administration of the Project, including the Work. Contractor acknowledges and confirms that no apparent authority, agency or similar claims may be made by Contractor with respect to any approval, authorization, order or decision given or made from and after the execution date of this Agreement by any purported representative or employee of Owner other than either of Owner's Project Representatives in writing (or such other individual authorized in writing by Owner), and all such claims are hereby waived by Contractor.

6.4 Approval of Major Purchases. Notwithstanding anything in the Contract Documents which may indicate otherwise, all purchase orders in excess of $250,000.00 for the supply by Contractor of materials and equipment specified in the Contract Documents for incorporation into the Work shall require the prior written approval of Owner.

6.5 Site Access. Owner, Owner's Lenders, Architect and any party designated in writing by Owner shall at all times have, and Contractor shall provide, complete and unfettered access to the Site and the Work in progress and preparation wherever located at all times for any and all purposes as Owner and/or Owner's Lenders may desire. Visits to the Site or observations of the Work by Owner, Architect, any party designated by Owner, Owner's representatives or contractors, or Owner's Lenders shall in no way relieve Contractor from its obligations to carry out the Work in accordance with the Contract Documents. Subject to the terms of the Contract Documents, Owner and Owner's other contractors shall work without causing labor disharmony, coordination difficulties, delays, disruptions or interferences with Contractor, Subcontractors and Vendors.

6.6 Payments. Owner shall timely make payment to Contractor of amounts properly due Contractor under and subject to (including Owner's right to offset and withhold as provided in) the Contract Documents.

6.7 Proof of Funding. Upon Contractor's request, and subject to availability to Owner and the rights of Owner's Lenders, Owner will provide to Contractor a copy of the loan commitment and loan disbursement agreement between Owner and Owner's Lenders relating to the provision and disbursement of funds to Owner for its obligations under this Contract (excluding therefrom information deemed proprietary or confidential by Owner or Owner's Lenders).

6.8 Good Faith. Owner shall use good faith in performing its obligations under the Contract Documents, and shall not unreasonably delay its review of and/or response to matters requiring Owner's review and/or response under the Contract Documents.

6.9 Timely Delivery of Drawings. Owner acknowledges and agrees that to maintain the Project Schedule and the Guaranteed Maximum Price, subject to any allowed extensions and/or increases, the Drawings and Specifications need to be consistent with the Guaranteed Maximum Price Premises and Assumptions and delivered by Owner within the terms required in the Project Schedule. Contractor acknowledges and agrees that the (i) Drawings and Specifications issued through May 6, 2002 and labeled "Le Rêve Highrise," and (ii) Drawings and Specifications issued through May 13, 2002 and labeled "Le Rêve Lowrise-Area 1" previously provided to Contractor, comply with the Guaranteed Maximum Price Premises and Assumptions.

ARTICLE VII.
CONTRACTOR'S RESPONSIBILITIES

7.1 Contractor's Specific Representations. By entering into this Contract, Contractor undertakes to furnish its best skill and judgment and to cooperate with Owner in furthering the best interests of Owner, the Work and the Project, and shall use good faith in performing its obligations under the Contract Documents. By entering into this Contract, Owner is relying upon the specific undertakings, representations and warranties of the Contractor in favor of Owner as follows, and Contractor hereby represents, warrants and covenants to Owner that:

7.1.1 Contractor and all Subcontractors are duly authorized and have the necessary license(s) to practice and perform all Work in this jurisdiction and will remain so licensed at all times relevant to the Work and Project. Contractor shall produce such license(s) to the Owner upon request, and Contractor shall be responsible to obtain copies of such license(s) from all Subcontractors prior to allowing them to perform Work on Site. Contractor has substantial experience in performing major projects with scopes of work similar to the Work defined herein, is familiar with the activities of the governmental bodies having authority over the Project and has expertise and experience managing Subcontractors on projects of similar scope within the Las Vegas, Nevada area. Contractor also represents that such experience includes performing major projects with stringent time constraints and where construction begins before all drawings and

specifications have been issued for construction purposes, as is the case with the Work and Project. The standard by which Contractor shall be judged in its performance of this Agreement and its exercise of judgement hereunder shall be that of a contractor with the highest level of skill, experience and expertise for the planning and construction of a first class luxury resort and casino on the strip in Las Vegas, Nevada, including the foregoing qualifications and consistent with such other Contractor representations, warranties and covenants contained in the Contract Documents.

7.1.2 All of Contractor's management and Site supervisory personnel listed in Exhibit C attached to this Agreement shall remain until Substantial Completion committed to and available for full-time assignments devoted to the Work unless otherwise specifically noted in Exhibit C attached to this Agreement or as agreed upon by Owner (subject to Contractor's right to terminate the employment of personnel for cause in the ordinary course of business).

7.1.3 Contractor has examined and will continue to examine all Contract Documents provided by Owner and the Architect pertaining to the Work and the Site. Contractor fully accepts the lack of completeness of such documents, including the Drawings and Specifications, except to the extent otherwise reasonably and promptly noted in writing to Owner in accordance with Section 7.3 hereof as to any specific concerns about incompleteness and consistent with Contractor's obligations and representations in this Agreement so long as any such Drawings and Specifications delivered after the Effective Date are (a) delivered timely in accordance with the Project Schedule and (b) in substantial conformance with the Guaranteed Maximum Price Premises and Assumptions. Contractor also represents that the Guaranteed Maximum Price Premises and Assumptions were sufficiently detailed and comprehensive to enable Contractor to have reliably estimated and established its Guaranteed Maximum Price set forth in Article 3 of this Agreement. Subject to the provisions of this Agreement, Contractor further agrees that all Work shall be performed within the Guaranteed Maximum Price and within the Contract Time set forth in Article 4 of this Agreement, notwithstanding that the Contract Documents, including the Drawings and Specifications, are not complete in every detail and are still being developed.

7.1.4 Contractor has had ample time to and has visited and examined the Site and has reviewed the physical conditions affecting the Work, and will continue to do all of the foregoing, and, subject to the provisions of Article 13 hereof, is familiar with all of the conditions on, under, and affecting the Site, as Contractor deemed necessary or desirable based on Contractor's skill, experience and knowledge and the scope of the Work and terms of the Contract Documents. Contractor has verified field conditions, and carefully and fully compared such field conditions, Site observations and other information known to Contractor with the Contract Documents (including the requirements thereof) and has not found any omissions, errors or discrepancies and has satisfied and will continue to satisfy itself as to: (a) access thereto; (b) the location of all utility pipelines and wiring conduits which can be ascertained through Site visits or by any documents which are provided by Owner; (c) the type of equipment and facilities needed before and during prosecution of the Work; (d) the general and local labor and weather conditions and availability of materials and equipment under which the Work is to be performed; (e) the presence of construction hazards, if any; (f) the nature, location, and character of the Work and the Site, including, without limitation, all improvements and obstructions on and under the Site both natural and man-made; and (g) all other matters which may affect the Contractor's means, methods, techniques and procedures necessary to construct the Work in strict accordance with the Contract Documents and otherwise fulfill its obligations under the Contract Documents, including but not limited to its obligation to complete the Work for an amount not in excess of the Guaranteed Maximum Price on or before the Contract Time. Any condition at the Site, whether or not consistent with conditions shown or called for on the Contract Documents, shall not be allowed as a basis for claims for extra compensation or extensions of time, except as otherwise specifically provided for in Article 13 below, notwithstanding any statements or representations by Owner or

any party on behalf of Owner, oral or written, with respect to the conditions of the Site or improvements thereon, or regarding the completeness, correctness, or adequacy of any Contract Documents, except to the extent provided in Section 7.1.3 hereof

7.1.5 Prior to commencing its procurement and construction activities, Contractor shall further verify at the Site all measurements and levels necessary for proper construction of the Work, including the fabrication, assembly and installation of materials and equipment to be incorporated into the Work and shall further carefully compare such verified field measurements and conditions with the requirements of the Contract Documents.

7.1.6 If the Contractor observes any failure of the Contract Documents to conform with applicable Laws (as defined in Section 7.2 of this Agreement), Contractor shall immediately notify Owner in writing and identify any such discrepancies and obtain written instructions from Owner before proceeding with any part of the Work affected thereby. If the Contractor performs Work that it knows or reasonably should have known to be contrary to Laws, the Contractor shall assume full responsibility for such Work and shall bear all costs (including loss and damage due to delays) of correction, repair and replacement attributable thereto as Non-Allowable Costs of the Work.

7.1.7 If Contractor discovers or otherwise becomes aware of any errors, discrepancies, omissions, duplications or conflicts in the Contract Documents at any time during the course of the Work, Contractor shall immediately notify Owner in writing and obtain written instructions from Owner before proceeding with any part of the Work affected thereby. If the Contractor performs any Work relating to any such errors, discrepancies, omissions, duplications in the Contract Documents, Contractor shall bear all costs of correction and adverse scheduling impacts attributable thereto as Non-Allowable Costs of the Work.

7.1.8 Contractor will not engage in, nor commit its personnel to engage in, any other projects while performing Work on the Project to any extent that such other projects may materially and adversely affect the quality or efficiency of the Work required to be performed by Contractor in connection with this Project or which will otherwise be detrimental to the carrying on and completion of this Project.

7.2 General Description. Contractor covenants and agrees that Contractor's Work and all Work performed by any Subcontractor or Vendor shall be carried out: (a) with a proper supply of labor, materials and equipment; (b) in full compliance with the requirements contained in, indicated on and reasonably inferable from the Contract Documents given Contractor's status as a contractor experienced with construction projects similar in size and complexity to the Work, (c) in full compliance with all applicable laws, consents, ordinances, mitigation measures, codes, rules, directives, orders, permits, statutes, and regulations, whether federal, State or local, and whether governmental or public administrative (collectively, "Laws"); (d) diligently and in the best manner to assure completion on or before the Guaranteed Date of Substantial Completion, (e) in full compliance with the "Technical Studies and Reports" set forth on Exhibit K attached to this Agreement, (f) by qualified design professionals where applicable, and (g) in full compliance with the terms of the OCIP (as defined in Section 15.1 of this Agreement) and any other insurance applicable to the Work. The term Laws shall also include, without limitation, those specific permits, approvals and entitlements set forth on Exhibit L attached to this Agreement. Except to the extent provided otherwise in this Agreement, including, without limitation, Section 7.3 below, Contractor shall not be responsible for whether the design aspects of the Drawings or Specifications conform to Laws applicable to the design aspects of the Drawings or Specifications (including but not limited to ADA design requirements). Applicable Laws shall supersede the Contract Documents if there is any conflict; provided, however, that if any applicable Laws shall necessitate a Change to or deviation from the Contract Documents, Contractor shall obtain Owner's written consent prior to implementing that Change. Contractor shall be

responsible for failing to report any discrepancy between the Contract Documents and applicable Laws of which Contractor knows or should have reasonably known in the exercise of due diligence and prudent judgement and consistent with the terms of the Contract Documents. If Contractor performs any part of the Work in violation of any such applicable Laws, Contractor shall bear all costs of correction and adverse scheduling impacts as Non-Allowable Costs of the Work. Should any governmental authority having jurisdiction over the Work mandate compliance with any changes to applicable Laws or Laws that have been enacted after Work has commenced, Contractor shall, subject to consultation with and written approval by Owner, construct the Work in accordance with such applicable Laws, the cost of which will be a Modification. In fulfilling its responsibilities under the Contract Documents, Contractor shall furnish, coordinate, manage and pay for all services and personnel, labor, machinery, tools, materials, necessary to:

7.2.1 Cause the Work to be constructed in compliance with: (a) the latest approved Drawings and Specifications for construction purposes; and (b) all applicable Laws (including all changes in Laws as provided in Section 7.2 above);

7.2.2 Provide at all times until Final Completion a sufficient and competent organization, which shall include the skilled services of all senior managers, Site supervisors, qualified scheduling personnel, superintendents, foremen, engineers, skilled and unskilled craft labor and supervisors and all other personnel necessary or desirable to plan, prosecute and construct the Work in accordance with the Contract Documents;

7.2.3 Provide the skilled services of buyers, expediters and other personnel necessary to achieve the timely delivery and use of (a) all materials, supplies and equipment to be incorporated into the Work by Contractor, Subcontractors and Vendors, and (b) all construction machinery and equipment, tools and expendable construction materials and supplies necessary or desirable for the Work;

7.2.4 Prepare and provide the Project Schedule and Schedule Updates for the Work in accordance with Article 11 below;

7.2.5 Coordinate the schedules and operations of all Subcontractors and Vendors of every tier and cooperate with Owner and Owner's other contractors and consultants and Owner's Lenders so that the Contractor's Work and the work of others will progress smoothly with a minimum of disruptions and interference to any party;

7.2.6 Except as provided in Section 6.1.5 above, obtain and provide to Owner, and pay for (as a Cost of the Work): (a) all Work-related authorizations, building permits, licenses and approvals which are required by governmental authorities to be taken out in Owner's name for construction and completion of the Work or the Project, and (b) all temporary and final Certificates of Occupancy;

7.2.7 Be responsible for protection of the Work, including all materials and equipment to be utilized during the Work, from theft or damage or other harm, whether in transit or in storage on-Site or off-Site, until Final Completion pursuant to Section 12.2 of this Agreement;

7.2.8 Promptly notify Owner in writing of any errors, omissions or discrepancies discovered by Contractor in the Contract Documents, including any observed failures to comply with applicable Laws;

7.2.9 Enforce strict discipline and good order among the employees of Contractor, Subcontractors and Vendors while at the Site or otherwise performing this Contract;

7.2.10 Give all notices and secure all required certificates of inspection, testing or approval necessary or incidental to the prosecution of the Work, for delivery to Owner;

7.2.11 Be responsible for and pay (as a Cost of the Work to the extent provided in Section 3.4 hereof) all sales, use, gross receipts, social security, workers' compensation (except to the extent provided in the OCIP), unemployment and all other such taxes relating to or arising out of the Contractor's performance of the Work;

7.2.12 Provide Owner with the full benefit of all Vendor's warranties applicable to all equipment and materials furnished by the Contractor;

7.2.13 Maintain at the Site one record copy of all Drawings, Specifications and revisions thereto, the Project Schedule, all Schedule Updates, all Change Orders and other Modifications, approved material lists, brochures, technical data submissions and RFI's, RFI responses, submittals, Construction Change Directives, Samples, all correspondence and transmittals pertaining to the Work and all other records relating to the status of all Work-related materials, equipment and construction activities;

7.2.14 Provide Owner with three (3) complete sets of operating and maintenance manuals for all equipment installed as part of the Work;

7.2.15 Provide Owner with as-built drawings (electronically when available and otherwise on reproducible mylar) prior to Final Payment after the completion by each Subcontractor of their respective portions of the Work, including at least one printed set with each Subcontractor's stamp and certification statement on such Drawing, as submitted, are true and correct;

7.2.16 Copy Owner on all correspondence, memoranda and bulletins by Contractor to Architect, consultants and public agencies and deliver to Owner on a current and up-to-date basis copies of all written communications received from public agencies. Provide to all Subcontractors (with concurrent written notice to Owner), and cause all Subcontractors to provide, all notices required by applicable Laws relating to the Contract and/or Work, including but not limited to notice of payments received. Copy Owner on all default, stop work or termination notices sent to or received from Subcontractors at every tier, and any others performing any Work;

7.2.17 Contractor shall maintain records, in duplicate, of principal building layout lines, elevations of the bottom of footings, floor levels and key site elevations certified by a qualified surveyor or professional engineer to Owner's and Owner's Lender's satisfaction; and

7.2.18 Perry Eiman and Glenn Kaiser are each acting alone authorized to act on behalf of Contractor with regard to the Work and Contract Documents, and are the individuals, acting alone or together, with whom Owner may consult at all reasonable times, and the instructions, requests and decisions of either of said individuals, acting alone, will be binding upon Contractor as to all matters pertaining to this Contract and the performance of the parties hereunder. The individuals who shall be responsible on behalf of Contractor for supervising the Project are set forth on Contractor's Personnel List attached as Exhibit C to this Agreement. Except for reasons beyond its control, Contractor shall not change the individuals designated on said Exhibit C during the term of this Agreement without the prior written approval or direction of Owner. At least one Project Superintendent shall be at the Site on a full-time basis and at all times while any Work is being performed.

7.3 Preconstruction Services. Contractor shall as a Cost of the Work furnish, coordinate, manage and pay for all services, personnel, labor, material, equipment, machinery and tools for the Work, and shall:

7.3.1 Search for and timely recommend from time to time to Owner various value engineering and other cost savings measures during the entire progress of the Work to reduce the Cost of the Work to the fullest extent possible while maintaining the quality required by the

Contract Documents. Owner will then elect, in its sole discretion, whether or not to implement such measures in connection with the Work.

7.3.2 Timely review designs with Owner and Architect, including, but not limited to, to the extent applicable, architectural designs, structural, HVAC, plumbing, fire protection, power and lighting, security systems and communications, interior designs, and vertical transportation to assure compliance with the Guaranteed Maximum Price, Guaranteed Maximum Price Premises and Assumptions, and Project requirements. Advise on the Site use and improvements, selection of materials, Project and Site systems and equipment, improvements to the Project and Site, call and security systems, and methods of Project delivery. Provide recommendations on relative feasibility of construction methods, availability of materials and labor, time requirements for procurement, installation and construction, integration into existing Project and Site systems, and factors related to cost including, but not limited to, costs of alternative designs or materials, preliminary budgets and possible economics.

7.3.3 Advise Owner in writing promptly upon discovery if, in the judgment of Contractor, the issuance of architectural or engineering documents does not meet schedule requirements or if the information provided on such documents is inadequate for the current purposes intended or if requirements of such documents conflict with other documents issued or with existing conditions on the Site. In any such event, Contractor will issue a Request for Information ("RFI") to the Architect (with a copy to Owner).

7.3.4 Review the Contract Documents, as the same are being prepared and check the same for (a) obvious conflicts, discrepancies and omissions, and (b) variations from customary construction practices and methods which, in the opinion of Contractor, may cause difficulties or occasion delay in the performance of the Work and timely advise Owner and the Architect promptly, in writing, of any such observed problems. Coordinate Contract Documents by consulting with Owner and the Architect regarding Drawings and Specifications as they are being prepared, and recommending alternative solutions whenever design details affect construction feasibility, cost or schedule. Timely advise Owner, using Contractor's professional skill and judgment, regarding any missing or incomplete aspects of the Project scope.

7.3.5 Contractor also expressly acknowledges that this Project and the Work will proceed on a "fast-track" method of construction, i.e., construction will commence without final Drawings and Specifications in place. More specifically, while Drawings and Specifications are complete for certain portions of Work, the design process will continue for other portions during construction based on the Guaranteed Maximum Price Premises and Assumptions. Contractor has been, and will continue to be, an active participant in the design process. Given such participation, Contractor represents that it is familiar with the scope and quality of those aspects of the Project which have not yet been fully designed, and has taken such scope and quality matters into consideration in preparing each component of the Guaranteed Maximum Price based on the Guaranteed Maximum Price Premises and Assumptions. Contractor agrees to work with Owner and Architect and their consultants in the completion of the design process and will provide prompt written notice to Owner in accordance with the time periods contained in the Project Schedule, if any proposed Drawings, Specifications or designs being prepared by Owner or Architect and provided to Contractor are not in substantial compliance with the Guaranteed Maximum Price Premises and Assumptions, or if any redesign or value engineering is necessary or advisable for certain aspects of the Project at any stage of the design process in order to bring the cost of such Work within or below, but not in excess of, the respective Allowance Amounts for the Allowance Items or the budgeted or allocated amounts for other items contained in the Guaranteed Maximum Price. Once the Drawings and Specifications are complete, it is recognized by both parties that the scope of the Guaranteed Maximum Price may include Work not expressly indicated on the Contract Documents, but which is reasonably inferable from the Contract

Documents, and such Work shall be performed without any increase in the Guaranteed Maximum Price or extension of Contract Time, except if and to the extent otherwise expressly provided in this Agreement.

7.3.6 Assist Owner and/or Architect as they may request in the bidding preparation process and solicitation and requests for bids and review of bids received.

7.4 Systems and Procedures. Contractor shall develop, for Owner's review and approval, and implement a system and procedures for:

7.4.1 Reviewing its own Work and the Work of its Subcontractors and Vendors for defects and deficiencies, including the preparation of all appropriate quality control documentation, to assure that all such defects and deficiencies are discovered and corrected.

7.4.2 Reviewing, processing, recording and paying Subcontractors and Vendors which is fully consistent with the requirements to be fulfilled by the Contractor pursuant to Article 9 of this Agreement. Such procedures shall especially provide for strict adherence to all lien waiver requirements for Subcontractors and Vendors as set forth in Article 9 of this Agreement.

7.4.3 Preparing, reviewing and processing Change Orders which fully complies with Article 18 of this Agreement.

7.4.4 Evaluating all Change Proposal Requests and Claims submitted by Subcontractors or Vendors for compliance with the requirements of the Contract Documents, recommending resolutions and options to Owner in writing with respect to such Change Proposal Request and Claims; and implementing of written Construction Change Directives and Change Orders issued in accordance herewith.

7.5 Schedule Meetings and Records. After execution of the Contract and prior to commencement of the Work, Owner shall schedule a meeting with Contractor for the purpose of outlining and clarifying the proposed Work, security and use of the Site, potentially difficult aspects of the Work of which Owner is actually aware and responding to questions of those attending.

7.5.1 Contractor shall schedule and conduct pre-construction and construction progress meetings at the Site on a regular basis (at least weekly) at which Owner, Architect, Interior Designer, Contractor and Subcontractors may jointly discuss such matters as Work procedures, progress, scheduling and coordination, and Owner's Lender may attend. Contractor shall be responsible for securing attendance of its Subcontractors, Vendors, suppliers and other personnel as are required at such meetings. Contractor shall keep and distribute timely in advance of the next meeting minutes of such meetings, including a list of the action items, responsible parties and dates necessary to complete actions to enable the Contractor to maintain the progress of the Work in accordance with the Project Schedule.

7.5.2 Contractor shall regularly monitor and provide to Owner and Owner's Lenders written reports on a monthly basis describing the status of the actual progress of the Work in relation to the Project Schedule, in accordance with Article 11 below.

7.5.3 For purposes of Schedule Updates and requested changes in the Contract Time, Contractor shall maintain daily logs which shall be available for Owner's and Owner's Lenders review at any time during normal working hours, and which shall record the progress of the Work.

7.5.4 Contractor shall also monthly provide to Owner and Owner's Lenders, on the first day of each month, an Anticipated Cost Report prepared by Contractor and containing detailed information on pending Change Orders, contracts awarded and to be awarded, and similar budget related items.

7.6 Contractor's Operations. Contractor shall: (a) confine its operations at the Site to areas designated by Owner; (b) not unreasonably encumber the Site or encumber areas in the vicinity of the Site with materials, equipment or debris; (c) coordinate its activities with the Owner's Project Representative and Owner's other contractors in advance; and (d) not block or hinder public parking facilities without Owner's prior written approval. To the extent reasonably possible, Contractor shall preserve and protect all existing vegetation on or adjacent to the Site which is not to be removed or required to be disturbed in the performance of the Work. Contractor shall be solely responsible for all costs and expenses incurred as a result of failure to adhere to the requirement of this Section (subject to Contractor's right to use the Construction Contingency as provided in Section 3.1.6 hereof, to the extent there remain funds therein and regardless of whether any funds remain in the Construction Contingency, Contractor shall still be liable for such damages, costs and expenses). Contractor shall make itself familiar with and use all best efforts to protect all existing improvements and/or utilities at or near the Site from damage. Contractor shall be solely responsible for repairing any such damage and for the related costs and expenses (subject to Contractor's right to use the Construction Contingency as provided in Section 3.1.6 hereof, to the extent there remain funds therein and regardless of whether any funds remain in the Construction Contingency, Contractor shall still be liable for such damages, costs and expenses). Neither Contractor nor any Subcontractor or Vendor shall post, erect or place on the Site, the Work, Owner's premises or the Project any sign, banner, billboard or display for marketing, advertising, promotional or other similar reasons, and no trade names or other identification shall appear on any item of the Work or at any place on the Project where such name or identification will be seen by the general public, except as approved in writing by Owner.

7.7 Site Discipline. Contractor shall employ, and require all Subcontractors and Vendors to employ, only skilled workers properly qualified by experience and ability to perform the tasks assigned to them. Contractor shall at all times be responsible for strict discipline and good order among its employees, craft labor, agents and representatives as well as the employees, craft labor, agents and representatives of its Subcontractors and Vendors while performing Work and all other persons performing any Work. When requested by Owner, Contractor shall remove and shall not re-assign to the Work any person who, in Owner's reasonable opinion, is disorderly, insubordinate, unsafe, unskilled, incompetent or otherwise unfit for tasks assigned to them.

7.7.1 At all times during performance of the Work on the Project, including during any partial use or occupancy by Owner or others, Contractor shall, and shall cause all Subcontractors and Vendors to, abide by each and all of the following requirements:

7.7.1.1 Access to the Project Work area by construction personnel shall be the most inconspicuous route available, in order that the general public and the Owner's personnel are not inconvenienced. Access shall be arranged with Owner prior to commencement of Work. Access to restricted and/or limited access areas required by Work shall be coordinated with Owner.

7.7.1.2 Owner's toilet facilities and the Project's permanent toilet facilities are not to be used by construction personnel.

7.7.1.3 During the FF&E and finish phase of construction, construction personnel are not permitted to eat and smoke where materials are in place nor use tables and chairs or other furniture that are part of the Project. During this phase of the Project, Owner will designate appropriate places for eating.

7.7.1.4 Quiet and courtesy with respect to Owner's employees and guests is mandatory.

7.7.1.5 Use all best efforts to insure that Contractor's and all Subcontractors' activities do not interfere with any Project and Site systems (i.e., electric, elevator, plumbing, HVAC, etc.) necessary to maintain ongoing operations of the Project and Site.

7.7.1.6 Power outages, mechanical shutdown and so forth shall be carefully coordinated with Owner. Contractor will provide Owner with two (2) full business days, advance notice of any planned shutdowns of any basic Project or Site systems, and will obtain Owner's written approval prior to commencing any such shutdown.

7.7.1.7 All life safety systems requiring shut-down or tie-ins, in accordance with the above clause 7.7.1.6, shall be coordinated with Owner and shall be performed at such a time to minimize any effect of the safety, health and welfare of the building's occupants. At the conclusion of each work-day, all operable life safety systems shall be energized and operative.

7.7.1.8 Contractor shall be responsible to Owner for acts and omissions of Contractor's employees and agents, Subcontractors and Vendors and their respective agents and employees, and other persons performing portions of the Work under a contract or arrangement with or under the direction of Contractor or with or under the direction of any Subcontractor or Vendor. Except to the extent expressly provided otherwise in this Agreement, Contractor shall not be relieved of its obligation to perform the Work in accordance with the Contract Documents either by activities or duties of Owner or Architect, or, by any request, approval or consent of Owner or Architect, or by tests, inspections or approvals required or performed by persons other than Contractor. Contractor shall require and ensure that each Subcontractor and Vendor complies with all applicable requirements set forth in the Contract Documents for Contractor. Except to the extent the Contract Documents expressly provide otherwise, if any dispute arises between Owner, on the one hand, and Contractor, on the other hand, unless Owner directs otherwise, Contractor shall proceed with the performance of its obligations under the Contract with reservation of all rights and remedies it may have under and subject to the terms of the Contract Documents.

7.8 Site Security. In cooperation with Owner, Contractor shall develop and implement an effective security program for protection of the Work in progress. Contractor shall secure, protect and be responsible for (consistent with the terms of the OCIP), and shall provide all necessary or desirable measures for security and protection at and on the Site and the Work, and of all materials, supplies, tools and equipment and all other improvements and personal property at the Site or in the vicinity of the Site, whether or not incorporated into the Work, including, but not limited to, utilizing fences, gates, cameras, and patrols. Provided, however, Contractor shall not be responsible for securing those portions of the Site under the control of the other contractor constructing the separate parking garage portion of the Project. Contractor shall bear the cost of, and be liable for as a Non-Allowable Cost of the Work (subject to Section 3.2 hereof), and promptly shall remedy, all loss and damage to any Work, tools, equipment and all other improvements and personal property of the Site from any cause whatsoever, except to the extent of loss or damage caused by Owner's negligence or willful misconduct or by the negligence or willful misconduct of Owner's separate contractors and their agents and employees (subject to Contractor's obligations under the Contract Documents to coordinate and monitor the work of such other Owner contractors). Owner may elect to provide and/or maintain security (including patrol guards) of its own choosing for the whole or portions of the Work and/or Site and/or adjacent property, but Owner shall not have any obligation, responsibility or liability of any kind to any party whether or not Owner arranges for any security. Such Owner arranged or provided security shall in no event release Contractor from or diminish any of Contractor's obligations under the Contract Documents, including without limitation this Section 7.8, and solely Contractor shall be responsible for security at and of the Work and Site, regardless of any security arranged for by Owner. Owner shall not assume or incur any responsibility or liability relating to any security arranged by Owner. Contractor shall cooperate with Owner's security personnel and shall comply with all requests made by such personnel to secure and protect the Work and the Site.

7.9 Coordination With Others. Contractor acknowledges that Owner reserves the right to engage other contractors, engineers, inspectors, consultants and/or its own personnel to provide work or

services relating to the Project which may be carried out concurrently with Contractor's Work. Specifically, and without limitation, Contractor acknowledges that FF&E procurement and installation (except as expressly provided on Exhibit F attached hereto as to installation) is excluded from Contractor's Work but completion of same within the times set forth on the agreed upon Project Schedule is necessary to achieve Substantial Completion as defined in Section 12.1 below, and that a portion of Contractor's Work will include installing materials and equipment in the Project procured by Owner and provided by Owner to Contractor. Owner shall retain separate contractors and vendors for FF&E procurement and installation as Owner desires; provided, however, upon Owner's request Contractor agrees to cooperate with Owner, including joint purchase arrangements, with respect to purchases of materials, supplies and equipment, including FF&E, where such cooperation and joint purchase may lead to a savings in purchase costs relating to such items as determined by Owner. Contractor shall fully cooperate by coordinating its Work with any work or services being performed by Owner and Owner's other contractors, engineers, inspectors and consultants as follows:

7.9.1 Contractor shall coordinate its construction activities with the activities of Owner and Owner's other contractors, engineers, inspectors and consultants and provide the necessary personnel and services to coordinate and interface its Work with Owner's activities at the proper time and in a manner not to delay others or increase costs.

7.9.2 Contractor shall provide Owner and Owner's other contractors with opportunities for the necessary storage and handling of materials and equipment necessary for execution of their activities.

7.9.3 Contractor shall participate with Owner and Owner's other contractors in reviewing their respective construction schedules when requested to do so. Contractor acknowledges that the time allowed for Substantial Completion of the Work includes the time necessary to coordinate and schedule the work of Owner's other contractors and consultants.

7.9.4 At its own expense as a Non-Allowable Cost of the Work, Contractor shall promptly remedy any damages wrongfully caused by Contractor or any Subcontractor or Vendor to Owner's existing property or completed or partially completed construction work performed by Owner or Owner's other contractors, engineers, inspectors and consultants.

7.9.5 If any part of the Work depends upon proper execution of any completed work and services performed or otherwise provided by or on behalf of Owner, Contractor shall, prior to proceeding with its Work, inspect such work and promptly report to Owner any apparent discrepancies or defects in Owner's activities. The failure of Contractor to examine and report any such apparent discrepancies which are or should have been reasonably apparent to Contractor in the exercise of due diligence and prudent judgement and consistent with the terms of the Contract Documents shall bar any Claims thereafter that any defects or delays in Contractor's Work are due to defects, delays or disruptions in the activities performed or otherwise provided by Owner.

7.9.6 Contractor and its Subcontractors and Vendors shall use all best efforts to work without causing labor disharmony, coordination difficulties, delays, disruptions, impairment of guarantees or interferences of any other obligations of any of Owner's other contractors, engineers, inspectors and consultants.

7.9.7 Contractor shall cooperate with Owner's contractors, engineers, inspectors and vendors performing FF&E procurement and installation services and shall incorporate such services in its Project Schedule and provide vertical transportation for the timely installation of FF&E. Contractor agrees to cause the Work to be performed in such a manner so that prior to achievement of Substantial Completion (and as early as reasonably practicable), Owner will have access to the Site and the Project in order to (a) begin installing FF&E, the installation of which is not part of the Work except as otherwise provided in the Contract Documents, at the Site, (b) begin training its personnel at the Site, and (c) and perform other tasks Owner deems necessary in connection with the opening of the Project, including without limitation to allow and provide for early occupancy and use of the Aqua Theatre as set forth on Exhibit B to this Agreement, and Owner will use all best efforts to avoid unreasonably interfering with Contractor's Work while conducting the activities in clauses (a), (b) and (c) of this Section.

7.10 Product and Design Substitutions

7.10.1 All requests for Substitutions shall be made in writing and sufficiently in advance of Work performance needs to permit a reasonable time for evaluation and written response by Owner without jeopardizing the Contract Time.

7.10.2 The acceptance of any Substitutions shall be at Owner's sole discretion.

7.10.3 All Substitutions, including design changes recommended by the Contractor, must be specifically accepted in writing by Owner prior to the use or implementation thereof by Contractor or any Subcontractor.

7.10.4 In reviewing any Substitution, including design changes, Owner may consider, without limitation, the comparative advantages and responsibilities, including, but not limited to: (a) any and all additional costs pertaining to any redesign and adverse consequences of such redesign, (b) any and all costs of replacement, corrections or adjustments to the Work, adjoining Work and Owner's existing property, and (c) any and all costs arising from adverse impacts to the critical path of the Project Schedule and/or any delays in the Contract Time arising out of such Substitution.

7.10.5 Contractor shall promptly notify Owner and Architect in writing if any items in the Contract Documents shall not be readily available, and Owner shall have the right to designate an available substitute item. Nothing in this Section or elsewhere in the Contract Documents shall derogate from Contractor's responsibility to select, order, and timely purchase such items. If Contractor does not timely order or arrange for delivery of items or materials required for the Work, Owner may (but is not obligated to) arrange for delivery or order such items and materials and in such event Contractor shall not be entitled to any Contractor's Fee on such items and the Guaranteed Maximum Price shall be reduced by (a) the cost of such items and materials arranged for or ordered and paid for by Owner and (b) that portion of Contractor's Fee applicable to the amounts in the immediately preceding clause (a).

7.11 Tests and Inspections

7.11.1 All on-Site and off-Site material testing and inspections required by the Contract Documents or by laws, rules, regulations, ordinances or orders of public authorities having jurisdiction, shall be arranged and supervised by Contractor in a timely manner to avoid any delays in the Work.

7.11.2 Owner shall pay for all required third party quality control testing and inspections, and the costs thereof shall not be part of the Guaranteed Maximum Price.

7.11.3 Owner may elect to require additional testing and inspections at any time during the course of the Work and for a period of one (1) year after the date of issuance of the Certificate of

Substantial Completion for the Work as a whole pursuant to Section 12.1 below. Such additional testing shall be at Owner's expense unless such testing discloses deficiencies not discovered during initial testing. In event deficiencies are disclosed, Contractor shall be responsible for all costs of such additional testing and inspections. Contractor's responsibility with respect to the costs of additional tests and inspections shall survive any termination of the Contract.

7.11.4 All certificates of such testing, inspection or approvals issued by all independent testing companies or governmental authorities shall be promptly delivered to Owner.

7.11.5 No inspection, or failure to inspect, by Owner or the independent testing companies or Owner's Lenders shall be construed as approval or acceptance of the Work or as a waiver of Contractor's obligations to perform the Work in full compliance with the Contract Documents.

7.12 Access to Stored Material. Owner and Owner's Lenders may enter upon the location where any material or equipment is manufactured or stored for purposes of inspection, checking, testing or for any other purpose Owner or Owner's Lenders deem reasonably necessary.

7.13 Shop Drawings, Product Data and Samples

7.13.1 "Shop Drawings" are drawings, diagrams, schedules and other data specially prepared for the Work by Contractor, its Subcontractors or Vendors of any tier to illustrate how certain specific Work components fit together and will be located in relation to each other.

7.13.2 "Product Data" are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by Contractor, its Subcontractors or Vendor of any tier to illustrate materials or equipment to be utilized for a portion of the Work.

7.13.3 "Samples" are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged.

7.13.4 Contractor shall timely prepare and submit for approval a schedule of Shop Drawings, Product Data, test reports, Samples etc., required to be submitted for the Work, in a format acceptable to Owner and Architect.

7.13.5 Contractor shall review, approve (to the extent of their conformance to the Contract Documents) and submit to Owner or Architect or the appropriate consultant all Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents in accordance with the schedule therefor with promptness and in such sequence as to cause no delays in the Work or in the activities of Owner or its other contractors.

7.13.6 Contractor's submittal of Shop Drawings, Product Data, Samples and similar submittals shall be Contractor's representation that Contractor has determined and verified all materials, field measurements and field construction criteria related thereto, and that Contractor has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents.

7.13.7 Contractor shall not perform any portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples or similar submittals until such submittals have been accepted by Owner or Architect. Such review and acceptance shall be in a timely manner so as not to delay the progress of the Work. Contractor shall carry out the Work in such submittals as accepted by Owner or Architect.

7.13.8 Contractor shall make any corrections required by Owner or Architect and shall resubmit the required number of corrected copies of Shop Drawings, Product Data, Samples or similar submittals until approved. Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to any revisions other than those requested by Owner or Architect on previous submittals.

7.13.9 Contractor shall not be relieved of responsibility for errors or omissions contained in Shop Drawings, Product Data, Samples or similar submittals based upon the approval, modification or acceptance thereof by Owner or Architect unless the Contractor has specifically informed Owner in writing of such deviation at the time of submittal and Owner has given prior written approval to the specific deviation.

7.13.10 Contractor shall be responsible for furnishing its Subcontractors and Vendors with sufficient copies of Shop Drawings, Product Data and Samples, including any such construction data supplied by other Subcontractors and Vendors, as may be necessary for the coordination of the activities of all Subcontractors and Vendors.

7.13.11 Contractor shall submit one (1) reproducible transparency copy and six (6) blue line prints therefrom of all Shop Drawings for all shop-fabricated items and all detailed assemblies indicated on the Shop Drawings.

7.14 Project Record Documents and As-Built Requirements. Contractor shall maintain at the Site one (1) record copy of all Specifications, Drawings, approved Shop Drawings, Change Orders and other modifications, addenda, Schedules and instructions, in good order.

7.14.1 The record Drawings shall be one (1) set of black (or blue) and white prints of the Drawings on which it must record all "as-built" changes during the course of construction. This record set shall be maintained separate and apart from documents used for construction reference as described in Section 7.2.13 above.

7.14.2 All as-built documents shall be kept current and Contractor shall not permanently conceal or cover any Work until all required information has been recorded.

7.14.3 Records of exterior underground utilities shall be made at the time of installation.

7.14.4 In marking any as-built conditions, Contractor shall ensure that such Drawings indicate by measured dimension to building corners or other permanent monuments the exact locations of all piping, conduit or utilities concealed in concrete slabs, behind walls or ceilings or underground. As built Drawings shall be made to scale and shall also include exact locations of valves, pull boxes and similar items as required for maintenance or repair service. Prior to Final Completion and as a condition to Final Payment, Contractor shall be responsible for providing Owner and Owner's Lenders with a fully completed and accurate set of all as-built Drawings in an acceptable electronic format, as Contract Documents for Owner's permanent records.

7.14.5 All documents described in this Section 7.14, including the as-built Drawings, shall be readily accessible at the Site for inspection upon request by Owner, Owner's Lenders, the Architect and/or their authorized representatives throughout the course of the Work.

7.15 Site Clean Up. All work performed under this Contract shall comply with all Laws governing applicable noise, dust and pollution control requirements.

7.15.1 Daily Clean Up. Contractor shall regularly and on a daily basis during the course of the Work keep the Site and all Work-related areas in a clean and safe condition to Owner's reasonable satisfaction by promptly removing and properly disposing of all debris and rubbish generated by Contractor's operations. Contractor shall maintain streets leading to the Site and used as a means of ingress or egress from the Site in a clean condition, and shall remove from these areas all of Contractor's (and Subcontractors' and Vendors') spillage and tracking arising from the performance of the Work, and shall promptly repair any damage to same. Contractor shall minimize the impact and effect of the Work and other activity on the Site on properties adjoining and nearby the Site, and shall take all necessary and commercially practical precautions (and comply with all applicable Laws) to prevent any debris including, but not limited to, fugitive dust, from entering or interfering with any adjacent or nearby property.

7.15.2 Substantial Completion Clean Up. Except to the extent that Owner may designate otherwise in writing, the Contractor shall perform all "Punch List Items" prior to the date of issuance of the Certificate of Substantial Completion pursuant to Section 12.1 below. Such Punch List Items shall include, but not be limited to:

(a): removal of all wastes and rubbish;
(b): cleaning of all walls and other surfaces including tile, wood and glass surfaces;
(c): replacement of all broken glass (including removing labels, washing and polishing both sides);
(d): cleaning and polishing of all plumbing fixtures and equipment;
(e): restoring existing facilities such as roads, other paved surfaces, fencing and curbing at the Site to either their pre-existing condition unless more is required by the Contract Documents;
(f): requiring affected Subcontractors to promptly remove from the Site all temporary offices, tools, equipment, machinery and surplus materials not required for the continued performance of the Work and otherwise leaving the designated areas "vacuum clean;"
(g): machine-sweep and clean all drive-way surfaces;
(h): grind, smooth, and sweep clean any concrete surfaces, as necessary or desirable;
(i): remove temporary protections;
(j): remove marks, spots, dust, stains, fingerprints and other soil or dirt from all floors, tile, walls, finishes, marble, finished materials, fixtures, equipment and other Work, and wash or wipe clean and leave same in undamaged, new condition;
(k): clean tubs, toilets and other fixtures, cabinet work and equipment, removing stains, paint, dirt and dust, and leave same in undamaged new condition;
(l): clean all metal finished in accordance with recommendations of the manufacturer and accepted industry standards; and
(m): clean resilient floors thoroughly with a well rinsed mop containing only enough moisture to clean off any surface dirt or dust and buff dry by machine to bring the surfaces to sheen.

Punch List Items shall not include but shall be in addition to, any items of defective workmanship or omissions which are to be corrected at Contractor's cost pursuant to Article 10 of this Agreement.

7.15.3 Final Completion Clean Up. Prior to Final Completion pursuant to Section 12.2 below, Contractor shall complete any Punch List Items described above which were either not required by Owner at the time of Substantial Completion or which were not satisfactorily completed and accepted by Owner at the time of Substantial Completion.

7.15.4 Site Clean Up By Owner. In the event Contractor fails to maintain the Site as described above in a manner satisfactory to Owner, and fails to complete appropriate clean up and/or removal activities within twenty-four (24) hours after receipt of Owner's written notice to do so, Owner shall have the right to perform such clean up and removal activities at Contractor's expense and may withhold and or deduct such costs from any amounts owed to Contractor.

7.16 Construction Facilities and Temporary Controls. Contractor shall be solely responsible for the design, transport, erection, inspection and maintenance of all temporary supports and structures;

including, but not limited to, electricity and lighting, heat, telephone and fax, water, sanitary facilities, fire protection, hoisting equipment and machinery, staging and scaffolding, temporary equipment and materials, all shoring and bracing, all cranes, hoists, derricks and supports, barriers and fencing, water control, field office, storage facilities and all other types of temporary supports and structures required for the Work and provided by Contractor or its Subcontractors while performing the Work. Contractor shall provide and maintain reasonable safety precautions to protect the public and avoid obstruction or interference with vehicular or pedestrian traffic in public streets, alleyways or private rights-of-way. Contractor shall, or shall cause Subcontractors to, leave proper access to hydrants and other similar places, and shall provide sufficient lighting during working hours and from twilight of each day until full daylight of each following day. When work is suspended, Contractor shall, or shall cause Subcontractors to leave roadways and sidewalks in proper condition and restore all such to good condition on completion of the Work and in compliance with all laws. Contractor shall, or shall cause Subcontractors to, maintain and keep in good repair, shift and alter as conditions may require, all guard rails, passageways and temporary structures and remove same when the Work is completed or when the need for their use has ceased.

7.17 Cutting and Patching of Work. Contractor shall be responsible for all cutting, fitting or patching of the Work that may be required to properly complete the Work or make its parts fit together properly. Any costs resulting from improper cutting, fitting and patching to any work performed by Owner or any other contractors to Owner shall be Contractor's responsibility. Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. Contractor shall not cut or otherwise alter such construction by Owner or a separate contractor except with consent of Owner and of such separate contractor. Contractor, if required by Specifications and Drawings, shall make connections to materials or equipment furnished, set, and/or installed by other contractors. No Work connecting to such materials or equipment provided by other contractors shall be done without giving such contractors a reasonable length of time to complete their work or until permission to proceed has been obtained from Owner. Owner shall secure and provide to Contractor the Shop Drawings from Owner's other contractors for such of their work as is to be built into Contractor's Work, or to which Contractor must make connection, and Contractor shall review and advise Owner of any discrepancy or unsuitability relative to its own Work. Each contractor shall provide all openings and chases in its own work, necessary for the installation of process equipment, and shall fill in around the same afterwards, if required.

7.18 Performance and Payment Bond Requirements

7.18.1 Contractor's Bond Requirements. Not later than five (5) business days after Contractor's receipt of Owner's Notice to Proceed and in any event prior to commencement of any Work, Contractor shall furnish a fully executed Performance and Payment Bond, in a form approved in writing by Owner and Owner's Lenders and naming Owner and Owner's Lenders (as Owner's Lenders may change from time to time) as obligees and beneficiaries, covering both the Contractor's faithful performance of this Contract and the payment of all obligations arising hereunder. The Payment and Performance Bond shall be in the amount of $150,000,000.00. Thereafter, such Payment and Performance Bond shall not be increased or decreased unless Owner grants advance written approval of such increase or decrease. The Payment and Performance Bond and all supplements shall be issued by a bonding company having an A.M. Best Co. rating of A XV or better and licensed in Nevada.

7.18.2 Subcontractor's Bond Requirements. On a case-by-case basis, Owner may elect to require that Contractor's Subcontractors provide a Performance and Payment Bond as described in Subsection 7.18.1 above using a form approved by Owner and Owner's Lenders. The amount of each such Payment and Performance Bond shall be equivalent to the full value of the relevant subcontract or such lesser amount as Owner may approve in writing. All costs of each Performance

and Payment Bond for those Subcontractors so designated by Owner shall be quoted separately to Owner for Owner's prior written approval before such bond is obtained. Contractor shall recommend to Owner whether or not to require such Payment and Performance Bonds as to each respective Subcontractor. Nothing in this Section 7.18 shall preclude Contractor from requiring a bond from any Subcontractor.

7.19 Liens.

7.19.1 If at any time Owner receives any stop notice, mechanic's lien or similar claim pertaining to unpaid amounts for any labor, goods, materials, equipment or services provided as part of Contractor's scope of Work (and provided Owner has paid all sums then due and owing to Contractor pursuant to and within the time period set forth in the Contract Documents), Contractor agrees to immediately cause such notices, liens or claims to be removed, or to file a bond in lieu thereof in an amount satisfactory to Owner. All costs incurred by Contractor in effecting the foregoing shall be at Contractor's sole expense as a Non-Allowable Cost of the Work, except that should Contractor be successful in having any filed mechanic's lien removed of record and dismissed with prejudice without the necessity of Contractor posting any bond and without the payment by Contractor to the lien claimant of any monies to effect the removal and dismissal of said lien, all of Contractor's reasonable fees and costs incurred in having the mechanic's lien removed and dismissed shall be a Cost of the Work. It is expressly understood that all of Contractor's obligations with respect to this Section 7.19 begin immediately at the outset of any notice or filing of a claim, either by correspondence or court proceeding, and without regard to any showing of fault on the Contractor's part. Contractor's failure to cause such notices or liens to be removed or to be bonded against in accordance with Section 7.19.2 below, shall constitute a material breach of this Contract entitling Owner to exercise all of its rights and remedies provided hereunder and at law.

7.19.2 If any such notice is received or such lien is filed and Contractor does not obtain a bond and file with the appropriate court a petition to substitute the bond for such lien or notice within five (5) working days after receipt of notice of such lien (or such lesser period in any loan documents relating to Owner's Lenders), and obtain a court order within thirty (30) days after filing such petition, allowing substitution of the bond for such lien, Owner shall have the right to pay all sums necessary to obtain removal of such lien or notice and deduct all sums to be paid (including attorneys' fees and the amount of any obligations assumed by Owner) from the Guaranteed Maximum Price and or from the next succeeding Applications For Progress Payments.

7.20 Royalties and Patents. Contractor shall pay as a Cost of the Work in accordance with Section 3.2.11 hereof all royalties and license fees relating to the Work. Contractor shall defend suits or claims for infringement of patent rights and shall indemnify and hold Owner harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents. However, if Contractor has reason to believe that the required design, process or product is an infringement of a patent, Contractor shall be responsible for such loss unless such information is promptly furnished to Owner.

7.21 Training. Prior to and as a condition to payment of the Final Payment, Contractor shall orient and instruct the responsible maintenance personnel designated by Owner in the operations of all equipment and shall provide the maintenance personnel with pertinent literature and operational manuals for all equipment designated by Owner.

7.22 Construction Photographs. Contractor shall submit color construction photographs to Owner, Owner's Lenders and the Architect with each month's Application For Payment during the Work. Each month, such photographs shall consist of four (4) views of the building from ground-view points as directed by Owner or the Architect.

7.23 Statement of Unpaid Claims. Whenever requested by Owner, Contractor shall certify to Owner in writing (in a form satisfactory to Owner) the amounts then claimed by and/or due and owing from Contractor to any person(s) for labor and services performed and materials and supplies furnished relating to the Work, setting forth the names of the persons whose charges or claims for materials, supplies, labor, or services have been paid and whose charges or claims are unpaid or in dispute, and the amount due to or claimed by each respectively.

ARTICLE VIII.
ARCHITECT

8.1 Architect's Administration of the Contract

8.1.1 The term Architect includes the Architect and the Architect's authorized representatives. Architect shall act in its professional capacity as an advisor to Owner during the course of the Work.

8.1.2 Owner shall cause the Architect to provide Contractor with three (3) sets of Drawings and/or Specifications which have been approved for use during construction and all revisions thereto. It shall be Contractor's responsibility to arrange and pay for as a Cost of the Work in accordance with Section 3.2 hereof, reproductions as may be needed by Contractor to perform its Work.

8.1.3 The Architect shall at all times have access to the Work wherever it is in preparation or being performed.

8.1.4 The Architect shall have authority to require additional inspection or testing of the Work, whether or not such Work is fabricated, installed or completed, by giving reasonable advance notice in writing to both Owner and Contractor. However, only Owner shall have authority to reject any Work which does not conform to the Contract Documents.

8.1.5 The Architect shall review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, for the limited purposes of checking for conformance with the Specifications and related design intent expressed in the Contract Documents. The Architect shall provide its response to all such submittals in a timely manner to avoid delays in the Work, and in any event not later than fourteen (14) calendar days after receipt thereof by Architect thereof.

ARTICLE IX.
SUBCONTRACTORS AND VENDORS

9.1 Subcontractors and Vendors. Contractor shall be responsible for the performance of Subcontractors and Vendors of every tier to the same extent as if performed by Contractor on a direct basis, including coordination of those portions of the Work performed by Subcontractors and Vendors.

9.2 Consent To Use Proposed Subcontractors and Vendors.

9.2.1 To the extent practicable, Contractor shall propose a minimum of three (3) qualified lump-sum or cost of the work plus a fee bidders for each element of the Work to be performed by Subcontractors and Vendors (including those who are to furnish materials or equipment fabricated to a special design). Owner shall, within five (5) calendar days after receipt thereof, reply to Contractor stating whether or not Owner has a reasonable objection to any such proposed person or entity. Owner's failure to reply in writing to Contractor's proposed list within five (5) calendar days after the receipt thereof shall constitute Owner's acceptance of such list. Owner's consent with respect to any Subcontractor or Vendor pursuant to this Article 9 shall not in any way relieve the Contractor from its obligations to fully manage, administer and assure that the Subcontractor

complies with the requirements of the Contract Documents, including all dates identified in the Project Schedule.

9.2.2 Contractor shall analyze all of the bids for each element of the Work and shall make a recommendation to the Owner as to which bid should be selected. Owner shall then make the selection with assistance from the Contractor. In the event the Subcontractor chosen by Owner is different than the Subcontractor recommended by Contractor, and the bid amount from the Subcontractor chosen by Owner exceeds by the lesser of 5% or $25,000.00 the bid amount from the Subcontractor recommended by Contractor, such bid difference in excess of the lesser of said 5% or $25,000.00 shall be cause for an increase in the Guaranteed Maximum Price (or Owner may choose to apply amounts from the Owner Contingency without an increase in the Guaranteed Maximum Price) provided that the bid recommended by Contractor was in full compliance with the requirements of the Contract Documents.

9.3 Form of Subcontracts and Purchase Orders. Contractor shall furnish Owner and Owner's Lenders with a copy of Contractor's proposed forms for use as subcontracts and purchase orders (which includes professional services agreements) for Owner's review and approval prior to Contractor's use thereof, and Contractor shall only enter into those subcontracts approved by Owner in writing, without material modification; provided, however, subcontracts and purchase orders which do not subject Contractor to liability in excess of $500,000 individually, and otherwise are in accordance with the Contract Documents, shall not require Owner's prior written approval. Contractor shall furnish to Owner a copy of each subcontract and purchase order it enters into in connection with the Work within ten (10) calendar days after execution of such subcontract or purchase order. All subcontracts and purchase orders shall require all Subcontractors and Vendors to assume toward Contractor the same legal obligations and responsibilities which Contractor assumes toward Owner in this Contract, including requiring the indemnities provided in Article 14 hereof, except as specifically provided otherwise in the Contract Documents or waived by Owner in writing. All subcontracts and purchase orders shall require that the subcontract may not be assigned by Subcontractor but permit the assignment of the subcontract by Contractor to Owner or a third party designated by Owner, including Owner's Lenders, as provided in Section 9.8 and Article 21 of this Agreement. All subcontract agreements and purchase orders shall conform to the requirements of the Contract Documents. All subcontracts and purchase orders shall also provide that any warranties contained or referenced therein shall run to the benefit of and be enforceable by Owner and Owner's Lenders. Contractor shall not waive or fail to exercise any material or significant right or remedy under any subcontract or waive any material or significant default under any subcontract without Owner's prior written approval.

9.4 Subcontractors and Vendors Designated By Owner. Contractor shall not be required to contract at its own risk with a Subcontractor or Vendor when Contractor has a reasonable objection, provided that the reason for such objection is identified to Owner in writing with five (5) calendar days of Owner's designation objected to by Contractor.

9.5 Payments to Subcontractors from the Contractor. Contractor agrees to pay each Subcontractor and Vendor within five (5) days of receipt of each progress payment from Owner an amount equal to the percentage of completion allowed to the Contractor on account of the Work of such Subcontractor or Vendor but not more than amount set forth for such respective Subcontractor and Vendor in the applicable Application for Progress Payment, less the percentage retained and amounts withheld from payments to the Contractor. Contractor further agrees to require each Subcontractor to make similar payments to its Subcontractors and Vendors. The obligation of Contractor to pay Subcontractors and Vendors (and their obligation to pay their Subcontractors and Vendors) is an independent obligation from the obligation of Owner to make payment to Contractor. Owner shall have no obligation to pay or to see to the payment of any monies to any Subcontractor or Vendor.

9.6 Subcontractor and Vendor Replacements. Contractor shall not replace any Subcontractor or Vendor who has been approved by Owner, unless Owner gives prior written approval to the replacement.

9.7 Communications With Subcontractors and Vendors. In cooperation with, and upon notice to Contractor, Owner and Owner's Lenders shall have the right at any time and from time to time to contact Contractor's Subcontractors and Vendors to discuss the progress of their portion of the Work. Contractor shall have the right to be present at the time of any such direct communications, excepting only if Contractor is in default under the Contract or unreasonably refuses to attend meetings after Owner has given Contractor reasonable advance notice and opportunity to be present. Notwithstanding the exercise of any of Owner's and Owner's Lenders' rights of direct communication in the subcontracting process or the process of managing subcontracts, Contractor shall be responsible and liable to Owner for all acts or omissions of Subcontractors and Vendors and their respective agents and employees and any other person performing any of the Work under an agreement with Contractor or any Subcontractor or Vendor.

9.8 Assignment. Contractor hereby assigns to Owner all its interest in all subcontract agreements and purchase orders now existing or hereafter entered into by Contractor for performance of any part of the Work, which assignment will be effective only upon acceptance by Owner in writing and only as to those subcontract agreements and purchase orders that Owner designates in said writing. Such assignment may not be withdrawn by Contractor prior to expiration of the Warranty Period, and Owner may accept said assignment at any time during the course of construction prior to expiration of the Warranty Period. Upon such acceptance by Owner: (a) Contractor shall promptly furnish to Owner the originals or copies of the designated subcontract agreements and purchase orders, and (b) Owner shall only be required to compensate the designated Subcontractor(s) or Vendor(s) for compensation accruing to same for Work done or materials delivered from and after the date as of which Owner accepts assignment of the subcontract agreement(s) or purchase order(s) in writing. All sums due and owing by Contractor to the designated Subcontractor(s) or Vendor(s) for Work performed or material supplied prior to the date as of which Owner accepts in writing the subcontract agreement(s) or purchase order(s), and all other obligations of Contractor accruing prior to Owner's written acceptance of such assignment, shall constitute a debt and an obligation solely between such Subcontractor(s) or Vendor(s) and Contractor, and Owner shall have no liability with respect such sums or any other obligations of Contractor. It is further agreed that all subcontract agreements and purchase orders shall provide that they are freely assignable by Contractor to Owner and Owner's assigns (including Owner's Lenders) under the terms and conditions stated in this Section and that all such Subcontractors and Vendors shall continue to perform their Work for Owner (or Owner's Lenders as the case are) pursuant to the terms of the respective subcontract or purchase order. Owner agrees not to accept such assignment solely for the purpose of intentionally causing Contractor harm and in bad faith.

ARTICLE X.
WARRANTY OBLIGATIONS

10.1 Contractor's Warranty. Contractor guarantees and warrants to Owner that (a) the Work, whether performed by Contractor's own personnel or by any Subcontractors or Vendors, shall be first class in quality, free from all defects whatsoever (including, without limitation, patent, latent or developed defects or inherent vice (except inherent vice or developed defects resulting solely due to material specified by the Contract Documents unless Contractor knows or should reasonably have known through the exercise of their obligations and due care that such specified items are subject to inherent vice or developed defects), and in strict conformance with the Contract Documents, the highest standard for construction practices and quality applicable to first class projects associated with luxury resorts, and (b) all materials, appliances, mechanical devices, equipment and supplies incorporated into the Work shall be new and of such quality to strictly meet or exceed the

Specifications and requirements of the Contract Documents. If requested by Owner at any time and from time to time, Contractor will furnish satisfactory evidence to Owner as to the kind and quality of materials, appliances, mechanical devices, equipment and supplies. All Work not conforming to the requirements of this Section (including, without limitation, substitutions or deviations not properly approved and authorized by Owner in writing), shall be considered defective.

10.2 Contractor's Warranty Period. While Contractor, Subcontractors and Vendors shall be responsible for strict compliance with the requirements of Section 10.1 above throughout the course of the Work, the "Warranty Period" shall commence upon the issuance of a Certificate of Substantial Completion for the Work as a whole pursuant to Section 12.1 of this Agreement and shall extend for a period of twelve (12) months from the date of issuance of such Certificate or for such longer period as set forth in an applicable manufacturer's warranty or as may be required by applicable Laws. Nothing contained in this Article 10 shall be construed to establish a period of limitation with respect to other obligations which Contractor might have under the Contract Documents or under applicable law, in equity or otherwise, or reduce the period of any other similar warranty or guaranty that may apply at law or otherwise to the Work.

10.3 Compliance With Contract Documents. Upon receipt of Owner's written notice at any time during the course of the Work or during the Warranty Period, and during any longer period of time as are prescribed by any applicable Laws or other applicable terms, Contractor (at no cost to Owner) shall at Contractor's sole cost promptly perform all corrective services (including, without limitation, furnishing all labor, materials, equipment and other services at the Site and elsewhere) to Owner's satisfaction as may be necessary to remedy any defective workmanship or omissions in the Contractor's Work, including without limitation, promptly correct or replace any Work rejected by Owner or which is incomplete, defective or fails to conform to the Contract Documents, whether observed before or after Final Completion of the Work and whether or not fabricated, installed, or completed. Contractor's compliance with its obligations as stated in this Article 10, and Owner's acceptance of such corrective services, shall at all times be determined by ascertaining whether Contractor has achieved strict compliance to Owner's reasonable satisfaction with both the written and inferable requirements contained in the Contract Documents.

10.4 Warranty Costs. All costs incurred by Contractor in fulfilling Contractor's remedial warranty obligations as set forth on this Article 10 shall be Non-Allowable Costs of the Work and shall be solely Contractor's responsibility which Contractor shall pay, including, without limitation, additional testing and inspections and compensation for the services of any professional or consultant made necessary thereby. Contractor shall also, as part of Contractor's warranty and guarantee at Contractor's own expense, repair or replace any other damaged components, material, finishes, furnishings and other Work or portions of the Project or other property damaged, affected or otherwise made necessary by or resulting from such defective, non-conforming or incomplete Work, to return the same to their original condition. In addition, and notwithstanding anything to the contrary in this Agreement, if within one (1) year after Substantial Completion any portion of the Work (including, without limitation, any roof and any walls) is not watertight and leakproof at every point and in every area (except where leaks can be attributed to damage to the Work proximately caused by extraordinary, external forces beyond Contractor's control and which Contractor could not reasonably have anticipated), Contractor shall, immediately upon notification by Owner of water penetration, determine the source of water penetration and, at Contractor's own expense, do any work necessary to make the Work watertight.

10.5 Timeliness of Corrective Services. Contractor shall use all best efforts to fully perform all warranty and corrective services to Owner's satisfaction within five (5) calendar days of the receipt of Owner's written notice of defective workmanship. If the corrective services require more than five (5) calendar days for completion, Contractor shall submit, within five (5) calendar days of receipt of Owner's written notice, a comprehensive written proposal itemizing all corrective actions necessary which Contractor is prepared to and shall immediately undertake and diligently pursue to enable the

Work to achieve strict compliance with the Contract Documents, including the latest Drawings and Specifications. In performing such corrective Work, Contractor shall perform its Work so as to cause the least inconvenience and disruption to Owner's business which may require performance of Work at hours when Owner's business is least active. Contractor shall not be entitled to the extra costs, if any, incurred in connection with performing corrective Work at non-business hours. Additionally, the provisions of Section 7.6 and 7.7 of this Agreement relating to cooperation with Owner, access, avoidance of disruption and related matters as set forth therein shall also apply to the performance of any warranty related work.

10.6 Warranty Survival. Contractor's warranty obligations set forth in this Article 10 shall apply to Work done by Subcontractors or Vendors, as well as to Work done by direct employees of Contractor, and such provisions shall survive acceptance of the Work and survive any termination of the Contract and Contractor shall be responsible to fully indemnify and hold Owner harmless from any and all liens, claims, lawsuits, costs and expenses which may arise out of the failure of the Contractor to fulfill its warranty obligations pursuant to this Contract.

10.7 Owner's Right To Correct. In the event Contractor fails to timely correct incomplete, nonconforming or defective Work following Owner's written notice described in Section 10.5 above, Owner shall have the right to correct or arrange for the correction of any defects or omissions in the Work at the Contractor's sole cost and expense and not as Costs of the Work. Contractor shall bear all costs incurred by Owner in correcting such defective Work, including, but not limited to, additional costs for redesigns by the Architect and other design consultants, replacement contractors, materials, equipment and all services provided by Owner's personnel. Owner shall be entitled to withhold and offset all costs incurred during any such corrective work against any funds which are otherwise due or which may become payable to the Contractor. If payments then or thereafter due Contractor are not sufficient to cover such amount, Contractor shall immediately upon demand pay the difference to Owner.

10.8 Owner's Right to Supplement Work of Contractor. If the Contractor violates or breaches any of the terms, conditions or covenants of the Contract, then Owner may, without prejudice to any other remedy it may have and following the expiration of any applicable cure periods, provide such reasonable labor and materials as are reasonably necessary to remedy such deficiency including the right to hire another contractor to supplement the Work of the Contractor and deduct all costs thereof from any money due or thereafter becoming due to the Contractor and reduce the Guaranteed Maximum Price by all such amounts.

10.9 Acceptance of Non-Conforming Work. Owner may, in its sole discretion, elect to accept a part of the Work which is not in accordance with the requirements of the Contract Documents. In such case, the Guaranteed Maximum Price shall be reduced as appropriate and equitable. Owner's acceptance of any non-conforming Work shall not waive or otherwise affect Owner's right to demand that Contractor correct any other defects or areas of non-conforming Work.

10.10 Warranty Exclusions. Contractor's warranty obligations shall not apply to defects caused by ordinary wear and tear, insufficient maintenance or improper operation or use by Owner.

10.11 Written Guaranty. All guarantees and warranties specified in the Contract, including Contractor's general warranty in this Article 10, shall be executed in writing by Contractor and each Subcontractor on their respective letterhead, signed jointly by Contractor and Subcontractor, and furnished to Owner upon commencement of the respective term of each such guarantee and warranty and as a condition to Final Payment. Owner shall, in addition to the guarantee and warranty provided in this Article 10, also have the benefit of, and Contractor shall assign to Owner in form and substance satisfactory to Owner, all warranties, service life policies, indemnities and guarantees with respect to any and all materials, appliances, mechanical devices, supplies and equipment incorporated into the Work and given by the manufacturer, retailer, or other supplier, which shall be supplied and assigned

to Owner promptly after such is received by or becomes available to Contractor and as a condition to Final Payment. Further, at Owner's request, Contractor shall assist Owner in enforcing all such warranties, guarantees, policies and indemnities.

ARTICLE XI.
SCHEDULING, DELAYS AND ACCELERATION

11.1 Owner's Right to Modify. Notwithstanding the Project Schedule, Owner has the right to modify or otherwise change the sequence of the Work and Contractor shall comply therewith and adjust schedules accordingly. If Contractor believes such modification or change causes a delay or acceleration in the completion of the Work, Contractor shall provide written notice to Owner in accordance with Sections 11.6 and/or 11.8 below. Any such modifications or changes in sequence applies only to scheduling and shall not be construed to mean a change in the method or means employed by Contractor for the execution of the Work.

11.2 Project Schedule. Contractor has furnished a detailed "Project Schedule" describing the activities to be accomplished and their dependency relationships. The Project Schedule includes an agreed upon Design and Permit Schedule setting forth time periods for Owner to provide Drawings and Major Permits to Contractors, and an agreed upon construction schedule setting forth Interim Milestone Dates for Contractor to achieve certain construction completion milestones. Contractor's and Owner's performance will be measured against the Project Schedule. The Project Schedule (and any revisions thereto) shall be updated and revised at appropriate intervals as required by Owner or the current and projected conditions of the Work and Project, shall designate those items on the critical path of the Work, shall be related to the entire Project to the extent required by the Contract Documents, shall indicate dates necessary to vacate various work areas, and shall provide for expeditious and practicable execution of the Work. The Project Schedule and all subsequent updates and revisions shall be printed in a tabular bar chart format. Contractor shall provide Owner with a diskette containing an electronic copy of the Project Schedule as submitted, including all logic diagram formats.

11.3 Schedule Updates. Contractor shall submit a "Schedule Update" along with each monthly Application For Progress Payment for comparison to the Project Schedule. The First Schedule Update shall be dated and identified as "Schedule Update No. 1" and shall identify the then current status of all major Work activities identified in the Project Schedule. All Schedule Updates shall include a comprehensive narrative setting forth (i) actual activity completion dates, (ii) the effect on the Project Schedule of any delays in any activities in progress and/or the impact of known or suspected delays which are expected to effect future Work, (iii) the effect of Contract Modifications on the Project Schedule, (iv) all actual and potential variances between latest Schedule Update and probable actual completion dates; (v) all Work activities not started or completed in accordance with the Project Schedule, and (vi) recommends specific Recovery Plans to Owner which may be necessary to achieve the Contract Time and/or relevant Interim Milestone Dates. All subsequent revisions shall be dated and numbered sequentially. In addition, each Schedule Update shall be clearly labeled to state the effective date of the current status information contained therein. Contractor's failure to provide Schedule Updates as required in this Section 11.3, or as otherwise mutually agreed in writing, shall be a material breach of this Contract.

11.4 Force Majeure Delay. All delays due to fire, industry wide labor disputes affecting the general Las Vegas, Nevada area and not limited to the Project (and not a jurisdictional dispute), adverse weather conditions not reasonably anticipatable, unavoidable casualties or other causes which, based on Contractor's extensive experience in constructing projects of similar scope and complexity in the same location and Contractor's representations contained in the Contract Documents, are unforeseeable and beyond the Contractor's reasonable control shall be a "Force Majeure Delay." Owner shall be excused from performance of its obligations to the extent of any Force Majeure events

affecting Owner, but solely to the extent the failure to perform such obligations by Owner is attributable to that Force Majeure event.

11.5 Owner Delay. Any delays in Contractor's Work that are caused in whole or in part by Owner, its agents, consultants or separate contractors, and are not the fault of Contractor or any Subcontractor or any party for which either is responsible or liable at law or under the Contract Documents, shall be an "Owner Delay."

11.6 Extensions of Time and Guaranteed Maximum Price Increases for Delay.

11.6.1 To the extent the Contractor or any Subcontractor is delayed at any time in the progress of the Work by an Owner Delay, Force Majeure Delay, or by other causes which Owner and Contractor agree may justify delay, then the Contract Time shall be reasonably extended by Change Order, and the Guaranteed Maximum Price increased (or a portion of the Owner Contingency applied if available), if at all, in accordance with the procedures described this Section 11.6 and in Article 18 below.

11.6.2 Notwithstanding any other provision of the Contract Documents, any item that cannot be demonstrated as being on or affecting the critical path of the Work shall not result in an extension of time to perform the Work or an increase in the Guaranteed Maximum Price in the event such item is delayed. Further, to the extent any Owner Delay or Force Majeure Delay could have been prevented or reduced if Contractor had, consistent with the terms of the Contract Documents, performed its duties and responsibilities under the Contract Documents, such delay will not entitle Contractor to an extension of the Contract Time (except for that portion, if any, of such Owner Delay or Force Majeure Delay which could not have been reduced consistent with the foregoing and subject to the other requirements of the Contract Documents, including this Section 11.6) or increase in the Guaranteed Maximum Price.

11.6.3 Extensions of the Contract Time for the Work or an increase in the Guaranteed Maximum Price will be authorized by Owner only if (a) Contractor has been necessarily delayed in meeting such Guaranteed Date of Substantial Completion by a cause which constitutes an Owner Delay or Force Majeure Delay, or a change to the Work initiated by the Owner; (b) the completion of the Work by the applicable interim Milestone Date or the total Work by the Guaranteed Date of Substantial Completion is actually and necessarily delayed by such cause; (c) the effect of such cause cannot be avoided or mitigated by the exercise of all reasonable precautions, efforts and measures, including planning, scheduling and rescheduling, whether before or after the occurrence of the cause of delay, and (d) Contractor has met any notice requirements set forth in the Contract Documents for it to be entitled to any extension of time or increased costs. All extensions of time and/or increases in the Guaranteed Maximum Price to which Contractor is entitled hereunder will be acknowledged by Change Order.

11.6.4 The period of any extension of time for delay shall be only that which is necessary to make up the time actually lost for a Work item or items identifiable on the Project Schedule as being on or affecting the critical path at the time in which the delay occurs.

11.6.5 The amount of increase, if any, in the Guaranteed Maximum Price due to a delay shall be equal to the additional cost actually, reasonably and necessarily incurred by Contractor in Cost of the Work items (a) as a result of continuing to maintain dedicated personnel, materials and equipment at the Site at Owner's request during such delay and (b) other reasonable and unavoidable Costs of the Work, if any, which are directly related to any subsequent re-mobilization of the delayed Work caused solely by such delay, but (as to both of the foregoing (a) and (b)), only if and to the extent such delay exceeds a period of thirty (30) consecutive days following commencement of the Work, and to the extent such actions are necessary, if at all, to be

performed by Contractor to maintain the extended Contract Time and Project Schedule after taking into account any extension of time as provided for in this Section 11.6.

11.6.6 Contractor shall not be entitled to receive a separate extension of time or an increase in the Guaranteed Maximum Price for each of several causes of delay operating concurrently but only for the actual period of delay in completion of the Work irrespective of the number of causes contributing to produce such delay. If one of several causes of delay operating concurrently results from any act, fault or omission of Contractor or Subcontractor or for which Contractor or Subcontractor is responsible, and would of itself, irrespective of the concurrent causes, have delayed the Work, no extension of time or an increase in the Guaranteed Maximum Price will be allowed for the period of delay resulting from such act, fault or omission. Further all such extensions and increases shall be netted out with any reductions in Contract Time or Guaranteed Maximum Price, before implementing any such extension or increase.

11.6.7 As a condition precedent to the granting of an extension of time or an increase in the Guaranteed Maximum Price, Contractor shall give written notice to Owner within ten (10) calendar days after the time when Contractor knows of any cause which might result in delay, for which it may claim an extension of time or an increase in the Guaranteed Maximum Price, including those causes of which Owner has knowledge, specifically stating in such notice that an extension or an increase in the Guaranteed Maximum Price is or may be claimed, and identifying such cause and describing, as fully as practicable, at that time, the nature and expected duration of the delay and its effect on the completion of that part of the Work identified in the notice. Contractor shall not be entitled to an extension of time or an increase in the Guaranteed Maximum Price to the extent such would not be necessary, but for Contractor's failure to strictly comply with this Section 11.6.

11.6.8 Since the possible necessity for an extension of time or an increase in the Guaranteed Maximum Price may materially alter the scheduling plans, and other actions of Owner and since, with sufficient notice, Owner may, if it should so elect, attempt to mitigate the effect of a delay for which an extension of time or an increase in the Guaranteed Maximum Price might be claimed, the giving of written notice as required above is of the essence of Contractor's obligations hereunder and failure of Contractor to give written notice as required above shall be a conclusive waiver of an extension of time and/or an increase in the Guaranteed Maximum Price for the cause of delay in question.

11.6.9 It shall in all cases be presumed that no extension, or further extension, of time and no increase in the Guaranteed Maximum Price is due unless Contractor shall affirmatively demonstrate the extent thereof to the reasonable satisfaction of Owner. Contractor shall maintain adequate records supporting any claim for an extension of time or increase in the Guaranteed Maximum Price.

11.6.10 Notwithstanding the provisions of this Section 11.6, if pursuant to this Section 11.6 Contractor is entitled to an increase in the Guaranteed Maximum Price, Owner shall have the right, in lieu of any increase, to apply a portion of the Owner Contingency (to the extent funds remain) to cover such increase in the Guaranteed Maximum Price due to such delay covered by this Section 11.6. If the Owner Contingency is not sufficient to cover the required increase in the Guaranteed Maximum Price, the Owner Contingency may still be utilized by Owner but the Guaranteed Maximum Price shall be increased by the difference between the required increase in the Guaranteed Maximum Price as provided in this Section 11.6.10 and the available amount of the Owner Contingency applied by Owner.

11.7 Limitations. Contractor agrees for itself and for its Subcontractors, and will cause each Subcontractor to agree, that it will make no claim or claims against the Site, Project, Owner (or any party affiliated or associated with Owner or any assets of Owner), or Owner's Lenders for damages or

losses incurred as a result of or arising out of delays in the Work, including but not limited to any Owner Delay or Force Majeure Delay. Any such delay in the Work, if claimed by or through Contractor, solely and completely will be compensated and balanced by (a) an extension of the Contract Time, and (b) an increase in the Guaranteed Maximum Price, strictly in accordance with Section 11.6 above, and such extension and increase shall be the sole and exclusive remedy for Contractor and all Subcontractors and Vendors for all delays. Contractor and each Subcontractor who performs any portion of the Work agree to accept such extensions at no additional cost (except as provided in this Section) to Owner, and waive and relinquish any right to payments of any kind for any delays. Further, the limitations in Section 17.4 hereof shall also apply to any delay.

11.8 Recovery Plans. The Guaranteed Maximum Price is based on Contractor working as many hours as necessary to properly perform the Work and achieve the Project Schedule requirements. In the event it is necessary for Contractor or any Subcontractor to work additional overtime in order to maintain the Project Schedule, Contractor shall be responsible for all costs relating to such overtime, though Contractor shall have the right to use the Construction Contingency in accordance with Section 3.1.6 hereof. "Recovery Plan" means a detailed narrative explanation clearly stating the scope and extent of any and all resource loading, activity re-sequencing and other acceleration activities required for all affected elements of the Work to enable Contractor to either: (a) complete the respective Interim Milestones by the respective Interim Milestone Dates; or (b) obtain Substantial Completion of the Work in its entirety within the Contract Time.

11.8.1 If Owner determines at any time based on reasonable evidence that Contractor is behind schedule or is otherwise in jeopardy of failing to complete any Interim Milestone by the applicable Interim Milestone Date or the Work within the Contract Time, Owner shall issue a written notice to Contractor identifying areas of concern and requiring that Contractor provide a Recovery Plan to Owner.

11.8.2 Upon receipt of Owner's notice, Contractor shall immediately undertake all available steps to overcome or mitigate against the adverse effects of all delays identified by Owner. Contractor's failure to undertake all available steps to mitigate the effects of such delays shall constitute a waiver of Contractor's right to claim relief for any schedule extensions and/or additional compensation to the extent that Contractor's failure to act timely contributed to such delays.

11.8.3 Contractor shall, within seven (7) calendar days after receipt of Owner's notice, provide its Recovery Plan to Owner notwithstanding whether or not Contractor disputes responsibility for the cause(s) of such delays.

11.8.4 Within seven (7) calendar days after submission of the Recovery Plan by Contractor, Owner shall advise Contractor in writing whether or not to proceed with the Recovery Plan as submitted, or in accordance with reasonable revisions thereto established by Owner. Any such notice to proceed shall be by a Construction Change Directive. As part of such notice, Owner shall have the right to require Contractor to work its own construction crews and Subcontractors and other personnel overtime, and to direct Contractor to take all other necessary action, including, without limitation, increasing the number of personnel and implementing double shifts, all at no increase to the Guaranteed Maximum Price. Such overtime work and other actions shall continue until such time as the Work has progressed so that it complies with the stage of completion required by the then most recently Owner approved Project Schedule. Additional costs incurred due to such overtime work and other actions shall not result in any adjustment in the Guaranteed Maximum Price.

11.8.5 Contractor's failure after written notice to provide a Recovery Plan within the time requirements and to the extent required in this Section 11.8, or to immediately implement a

Recovery Plan upon receipt of a Construction Change Directive to do so, shall be material breaches of this Contract.

11.9 Accelerations for Owner's Convenience

11.9.1 In the event Owner desires to accelerate the Project Schedule for reasons other than delays caused by or attributable to the Contractor, Owner shall so notify Contractor in writing.

11.9.2 Upon receipt of such written instruction, Contractor shall require its personnel and its Subcontractors and Vendors to work such overtime hours and/or to increase their respective work forces as are reasonably necessary to meet Owner's acceleration goals.

11.9.3 In the event such an acceleration is ordered by Owner, Contractor shall be entitled to an adjustment in the Guaranteed Maximum Price determined in accordance with Article 18 of this Agreement.

11.10 Schedule Coordination

11.10.1 Contractor shall schedule and coordinate the performance of the Work by Contractor's personnel, and Subcontractors and Vendors of any tier, in a manner that will enable Contractor to achieve Interim Milestones by the respective Interim Milestone Dates and completion within the Contract Time. Contractor acknowledges that at least a portion of the Work will be performed under joint occupancy conditions at the Site.

11.10.2 Contractor shall cooperate with Owner and Owner's other contractors so that both the Contractor's Work and the work of others will progress smoothly with a minimum of disruptions and interference to any party.

11.10.3 Contractor shall schedule its Work and Project delivery of materials to comply with all reasonable requests and suggestions of Owner in order to maintain the Project Schedule within the limitations of all existing Site conditions and business operations of Owner.

11.10.4 Contractor shall use all best efforts to not utilize any labor, materials or means whose employment or utilization during the course of this Contract may tend to or in any way cause or result in strikes, work stoppages, delays, suspension of Work or similar trouble by workman employed by its Subcontractors, or by any of the trades working in or about the Project and Site where Work is being performed under this Contract, or by other contractors or their subcontractors pursuant to other contracts, or on any other project and project site or premises owned or operated by Owner. Any violation by Contractor of this requirement may be considered as proper and sufficient cause for declaring Contractor to be in default, and for Owner to take action against Contractor as set forth in the Contract Documents.

11.10.5 In case of disagreements or disputes regarding the schedule of Work by other contractors or unnecessary interference to the Work caused by lack of cooperation between other contractors and Contractor, Contractor shall fully cooperate to resolve any disputes with or between other contractors. In case of disagreements or disputes between two or more contractors, Owner shall be consulted and Owner's decisions as to proper methods for coordinating the Work shall be final.

11.11 Flow-Down Provisions

11.11.1 Contractor shall include the requirements of this Article 11 in all of its subcontracts and purchase orders and shall use its best efforts to require Subcontractors and Vendors with agreements totaling in excess of $5,000,000.00, and shall require all Subcontractors and Vendors with agreements totaling in excess of $25,000,000, to include the same provisions in all sub-tier subcontracts and sub-tier purchase orders.

11.11.2 Contractor shall be responsible to fully indemnify and hold Owner harmless from any and all liens, claims, lawsuits, costs and expenses, including attorneys' fees, which may arise out of either the failure of the Contractor to fulfill its obligations pursuant to this Article 11 and/or the Contractor's failure to enforce the flow-down provisions as stated above.

11.12 Partial Occupancy Or Use. Owner may occupy or use any completed or partially completed portion of the Work at any stage, including opening portions of the Project to the public. Notwithstanding any other provision of the Contract, any such partial occupancy or use shall not: (a) constitute final acceptance of any Work, or (b) relieve Contractor of responsibility for loss or damage because of or arising out of defects in, or malfunctioning of, any Work, material, or equipment, or from any other unfulfilled obligations or responsibilities under the Contract Documents; provided, however, Contractor shall not be liable for ordinary wear and tear resulting from such partial occupancy and use by Owner. Contractor shall cooperate fully with Owner, as Owner may request, in all aspects of Owner's partial use and occupancy of the Work and Project, including, without limitation, scheduling, allocation of utilities, access and storage, and all other arrangements. Unless and until Owner issues a Certificate of Substantial Completion pursuant to Section 12.1 below for such portion of the Work partially occupied or used by Owner, Owner shall not be obligated to pay (but may in its sole discretion elect to pay) Contractor Retainage relating to such portion of the Work at that time partially used or occupied by Owner, and it is the express intent of Contractor and Owner that Contractor waive the benefits of Section 624.620 of Nevada Revised Statutes.

11.13 Other. Subject to Owner making payment to Contractor of all amounts then due and owing to Contractor under and subject to the Contract Documents, Contractor agrees to prosecute the Work and to require all trade contractors to prosecute the Work in a timely and proper method and manner so as to meet the dates reflected on the Project Schedule, including the Guaranteed Date of Substantial Completion.

ARTICLE XII.
SUBSTANTIAL AND FINAL COMPLETION

12.1 Substantial Completion Procedures and Requirements

12.1.1 Notice of Substantial Completion. "Substantial Completion" means the stage in the progress of the Work when (a) the Work in its entirety, or a designated portion thereof which Owner agrees to accept separately, is sufficiently complete in accordance with the Contract Documents and all applicable Laws to enable Owner to fully occupy and utilize the Work, or such designated portion thereof which are requested in writing by Owner, for all of its intended purposes and all aspects of such Work and the Project can be open to the general public; (b) all Project systems included in the Work (including, without limitation, all life safety systems) are operational and functioning as designed and scheduled; (c) all instruction of Owner's personnel in the operation of the Project systems has been completed; (d) all final finishes within the Contract are in place; (e) the Work is otherwise satisfactory to Owner in accordance with the Contract Documents; and (f) no liens, claims or encumbrances have been filed or are outstanding with respect to the Work. In general, the only remaining Work shall be minor in nature, so that Owner could occupy the building(s) comprising the Project and fully utilize such building(s) on that date, and all elements are fully functionable and operable as provided in the Contract, and the Final Completion of the Work by Contractor would not materially interfere with, disrupt or hamper Owner's use, occupancy or enjoyment of the Project, including the intended normal business operations of the Project, or detract from the aesthetic appearance of the Project. Contractor shall request an inspection for purposes of Substantial Completion in writing when the Contractor considers that the Work in its entirety, or a designated portion thereof which Owner has previously agreed in writing to accept separately, is substantially complete in accordance with all requirements in the Contract Documents.

12.1.2 Procedures For Substantial Completion. Procedures to be utilized to determine Substantial Completion of the Work in its entirety, or a designated portion thereof, shall be as follows:

12.1.2.1 Either party may initiate procedures for Substantial Completion of the Work in its entirety or a designated portion thereof, but Owner shall not be required to make a determination and accept partial Substantial Completion unless: (a) specific areas or phases of the Work are designated for partial Substantial Completion by Owner; or (b) Owner assumes physical possession of a portion of the Work solely for purposes of Owner's full use and occupancy. The use or occupancy of a portion of the Work by Owner or its other contractors to inspect and/or correct defective workmanship pursuant to Article 10 of this Agreement or install FF&E or other work shall not be considered as use and occupancy.

12.1.2.2 Unless waived by Owner in writing, Substantial Completion of either the Work in its entirety or a designated portion thereof shall not occur earlier than the date of all designated or required governmental certificates of occupancy and other permits, inspections and certifications for the Project or such portion thereof as the case may be, have been achieved and issued to Owner by the relevant governmental authority, and posted for the Project or such portion thereof, by the relevant governmental authority (provided that a temporary certificate of occupancy ("TCO") rather than a permanent certificate of occupancy may have been achieved and issued to Owner, and posted, so long as the obtaining of a temporary, rather than a permanent, certificate of occupancy does not prevent any aspect of the Project from being open to the general public).

12.1.2.3 If Owner or Owner's Lenders disagree that Substantial Completion has been achieved, Owner shall provide the Contractor with an advisory opinion of the items which should be completed or corrected for purposes of Substantial Completion. Owner's failure to advise Contractor of any items specified in the Contract Documents shall not alter the Contractor's responsibility to complete all Work necessary for Substantial Completion in accordance with the Contract Documents.

12.1.2.4 Upon receipt of Owner's advisory opinion, Contractor shall complete and/or correct all listed items. Contractor shall then submit its request to Owner for another inspection to determine Substantial Completion. Such subsequent inspection or re-inspections to determine if the Work is acceptable for purposes of Substantial Completion shall be made jointly by Owner and Contractor.

12.1.2.5 Prior to the issuance of a Certificate of Substantial Completion by Owner, the parties shall develop a final punch list which must be completed prior to Final Completion. The final punch list shall include the Contractor's Punch List Items and other incomplete or missing items which Owner elected in its discretion to waive for purposes of Substantial Completion.

12.1.2.6 Immediately prior to the issuance of a Certificate of Substantial Completion, Owner and Contractor shall jointly inspect and document the condition of the Work, or designated portion thereof, at the time of Owner's initial possession to determine and record its condition. Such inspection and acceptance by Owner shall not, however, alter the Contractor's responsibility to complete all Work necessary for Final Completion in accordance with the Contract Documents, including items discovered by Owner after Substantial Completion.

12.1.2.7 Owner shall have the final decision as to whether or not Contractor has achieved Substantial Completion. When Owner determines that the Work in its entirety, or a designated portion thereof, is substantially complete and a TCO has been obtained therefor,

Owner shall prepare and issue a "Certificate of Substantial Completion," which shall certify the date of Substantial Completion.

12.1.3 Limitations. Notwithstanding any provisions in the Contract Documents which may indicate otherwise, Owner's acceptance of partial Substantial Completion and the possession, use and occupancy of any portion of the Work prior to Substantial Completion of the Work in its entirety, shall not in any manner constitute a waiver by Owner of any of the provisions or requirements of the Contract Documents, including, but not limited to, Contractor's warranty obligations set forth in Article 10 of this Agreement and Contractor's obligations to achieve the Contract Time set forth in Article 4 of this Agreement.

12.2 Final Completion Procedures and Requirements

12.2.1 Contractor's Notice of Final Completion. "Final Completion" means that stage in the progress of the Work when Owner and Owner's Lenders determine that the Work has been properly completed and equipped by Contractor in accordance with the Contract Documents, including (a) completion of all punch list items (including Contractor's Punch List Items), (b) the submittal to Owner of all documentation as described in the Contract Documents, (c) completion in compliance with all applicable Laws, and (d) all obligations of Contractor under the Contract Documents (except for those obligations which are intended to be satisfied after Final Completion) are fully satisfied, and the Work is otherwise satisfactory to Owner and Owner's Lenders. When Contractor considers that the Work is finally complete, Contractor shall so notify Owner in writing requesting a Certificate of Final Completion. Such notice shall be accompanied by, and it shall be a condition to Final Payment and Final Completion that Contractor deliver to Owner, the following:

12.2.1.1 An affidavit that all payrolls (including all union dues, health, welfare, pension plan and other labor associated contributions), invoices for all labor, materials and equipment and all other indebtedness connected with the Work for which Owner or its property might in any way be responsible, and for which Owner has paid the Contractor, have been paid or otherwise satisfied.

12.2.1.2 Unconditional Final Lien Waivers from Contractor and all Subcontractors and Vendors and all other persons providing any services, labor or materials in relation to the Work, in the form of Exhibit N attached hereto, including certified copies of waivers of all liens filed during the course of the Work and not previously provided to Owner, and no liens, claims or other encumbrances have been filed or are outstanding with respect to the whole or any part of or interest in either the Site or the Work.

12.2.1.3 All final occupancy certificates obtained from any government authority and all other required approvals and acceptances as necessary or required for the full use and occupancy of all aspects of the Project by any city, county and state authorities having jurisdiction and not previously provided to Owner;

12.2.1.4 All written guarantees and warranties under the Contract for Contractor and Subcontractors and Vendors, all required operation and maintenance manuals for major equipment required under the Contract all in form and substance satisfactory to Owner; and assignment documentation assigning to Owner in form and substance satisfactory to Owner any remaining warranties and guarantees pertaining to the Work and not previously provided and assigned to Owner, and Contractor agrees to assist Owner in the prosecution and enforcement of all such assigned warranties and guarantees.

12.2.1.5 An affidavit certifying that Contractor has timely paid all federal, state and local taxes due arising out of the Work in a form satisfactory to Owner.

12.2.1.6 An affidavit certifying that Contractor shall maintain completed operations insurance in amounts required by the Contract Documents for a period of two (2) years after Final Completion and a certificate of the insurer 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 60 days' prior written notice has been given to Owner.

12.2.1.7 All operating, maintenance, servicing and cleaning manuals and instructions, spare parts, maintenance stocks and spare materials provided by Subcontractors and Vendors and/or reasonably required by Owner for beneficial use of the Work for its intended purpose, and if requested by Owner adequate verbal instructions in the operation of mechanical, electrical, plumbing and other systems.

12.2.1.8 A complete and accurate set of as-built Drawings pursuant to Section 7.14 of this Agreement, which clearly delineate any changes made to the latest approved Drawings and Specifications.

12.2.1.9 An accounting of the credits due Owner for the value of any excess items paid for by Owner and a complete detailed statement of the Cost of the Work showing, without limitation, all expenditures for which state or federal tax credits or deductions may be allowed.

12.2.1.10 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 Site, 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 Site.

12.2.1.11 Such documents and other items so that Owner will receive and Owner does receive a release and complete refund without deduction or offset 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.

12.2.1.12 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 the Project or Site, 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 7.19 hereof furnish a bond satisfactory to Owner 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 money that Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees).

12.2.1.13 Owner and Owner's Lenders shall have received (at Owner's expense) an updated survey of the Site showing the Work "as built."

12.2.1.14 Master, submaster and special keys with keying schedule.

12.2.1.15 Consent of any surety to Final Payment.

12.2.1.16 An OCIP audit to Owner's reasonable satisfaction.

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

12.2.2 Owner's Inspection For Final Completion. Upon receipt of Contractor's request for a Certificate of Final Completion and all submittals that comply with Subsection 12.2.1 immediately above, Owner shall promptly make appropriate evaluations and inspections as follows:

12.2.2.1 If Owner considers that the Work is fully completed in accordance with the Contract Documents, Owner shall promptly so advise Contractor.

12.2.2.2 In the event that Owner or Owner's Lenders does not agree that Final Completion has been achieved, Owner shall promptly so advise the Contractor in writing of the remaining items to be completed for purposes of Final Completion.

12.2.2.3 After Contractor satisfies all remaining items necessary for Final Completion, Contractor may submit a further written notice to Owner stating that the Work is ready for re-inspection. All re-inspections to determine if the Work is acceptable for purposes of Final Completion shall be jointly made by Owner and Contractor.

12.2.2.4 Owner shall have the final decision as to whether Contractor has achieved Final Completion. When Owner agrees that the Work is finally complete, which agreement Owner agrees not to unreasonably delay, Owner shall prepare and issue a "Certificate of Final Completion," which shall set forth the date of Final Completion, and Owner may file a Notice of Completion.

ARTICLE XIII.
CONCEALED CONDITIONS AND UNCOVERING OF WORK

13.1 Concealed Conditions

13.1.1 In the event that unknown and concealed conditions are encountered in the Work which are of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the Work, and which cause a delay in the critical path portion of the Work, and which: (a) are not identified in the Contract Documents, (b) were not otherwise known to Contractor, and (c) could not have been discovered by Contractor prior to the Effective Date through the exercise of due diligence consistent with the terms of the Contract Documents, then the Guaranteed Maximum Price and the Contract Time shall be subject to adjustment by Change Order and in accordance with Section 11.6 hereof; provided, however, that Contractor must demonstrate its compliance with its representations including those set forth in Section 7.1 of this Agreement.

13.1.2 Contractor shall notify Owner in writing within five (5) calendar days after the first observance of conditions described in Subsection 13.1.1 immediately above.

13.1.3 It is understood and agreed that Owner shall not be liable for any costs arising out of concealed conditions that could have been discovered or anticipated by a prudent and experienced contractor through the use of due diligence and consistent with Contractor's obligations, representations and warranties in the Contract Documents. This includes, but is not be limited to, any costs arising out of the existence of obstructions such as utilities, pipelines, conduits or any easement or right-of-way limitations which are reasonably shown or inferable from the Contract Documents, or any obstructions which could have been reasonably discovered during Contractor's Site inspections or which are inherent in the Work and could have been reasonably anticipated by the Contractor (Contractor may utilize the Construction Contingency to cover costs relating to such items as provided in Section 3.1.6 hereof).

13.2 Covering of Work

13.2.1 Contractor shall enable Owner to inspect all portions of the Work before they are covered.

13.2.2 If a portion of the Work is covered without providing Owner with adequate advance notice, or contrary to the request or direction of Owner or the provisions of the Contract Documents, Contractor shall, if required in writing by Owner, uncover the Work for observation. Such Work shall be replaced at Contractor's expense without change in the Contract Time.

13.2.3 If a portion of the Work has been properly covered in accordance with the Contract Documents and after sufficient advance notice to Owner, Owner may subsequently request to see such Work and it shall be uncovered by Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be paid by Owner. If such Work is not in accordance with the Contract Documents, Contractor shall be responsible for all costs and expenses of uncovering and replacement.

ARTICLE XIV.
INDEMNIFICATION

14.1 Indemnity

14.1.1 To the fullest extent permitted by law, Contractor hereby indemnifies and agrees to protect, defend, and hold Owner, Architect, Wynn Resorts, LLC, The Wynn Group, Wynn Design and Development LLC, Valvino Lamore, LLC and Owner's Lenders, and their respective subsidiaries, affiliates, parent companies and their respective members, officers, directors, managers, employees, agents, shareholders, successors and assigns, heirs, administrators, and personal representatives (collectively, "Owner Indemnitees") harmless from and against any and all claims, liabilities, obligations, losses, suits, actions, legal proceedings, damages, costs, expenses, awards, or judgments, including, without limitation, reasonable attorneys' fees and costs (whether or not suit is filed) (collectively "Actions"), any Owner Indemnitee(s) may suffer or incur or be threatened with and whether based upon statutory, contractual, tort or other theory, that are: (i) imposed by law, or (ii) arise by reason of or relating directly or indirectly to (a) the death of or bodily injury to any person or persons, including, without limitation, employees of Contractor, (b) injury to property (including loss of use and the Work itself and including all costs for repair or replacement of work, materials, supplies or equipment (whether on or off Site or in transit), including whether lost, stolen, damaged or destroyed), equipment or material, including, without limitation, any of the same resulting or arising out of the performance of the Work performed by Contractor or any Subcontractor, or Vendor, (c) violation of or failure to comply with or abide by any Laws, or variations from the Contract Documents in the actual construction of the Work, (d) any infringement of the rights of any third party, including, without limitation, copyright and patent rights (in connection with which Contractor shall pay all royalties and license fees), (e) any stop notices, mechanic's liens or similar claims relating to any labor, services, materials, goods or equipment whether provided by Contractor, Subcontractor or any Vendor and relating to the Work, and (f) any breach or alleged breach of Contractor's warranties, representations, obligations, covenants or agreements set forth in the Contract, and (iii) relate to or arise out of or result from, directly or indirectly, the performance of the Work, or from any act or omission of Contractor, or any Subcontractor, or Vendor, anyone directly or indirectly employed by them, or anyone for whose acts any of them are liable or responsible at law or under the Contract Documents, regardless of whether or not such Action is caused by an Owner Indemnitee (subject to Section 14.4 below).

14.1.2 To the fullest extent permitted by law, Owner hereby indemnifies and agrees to protect, defend, and hold Contractor, and its subsidiaries, affiliates, parent companies and their respective members, officers, directors, employees, agents, shareholders, successors and assigns,

heirs, administrators, personal representatives (collectively, "Contractor Indemnitees") harmless from and against any and all claims, liabilities, obligations, losses, suits, actions, legal proceedings, damages, costs, expenses, awards, or judgments, including, without limitation, reasonable attorneys' fees and costs (whether or not suit is filed) (collectively "Actions"), any Contractor Indemnitee(s) may suffer or incur or be threatened with and whether based upon statutory, contractual, tort or other theory, that are: (i) imposed by law, or (ii) arise by reason of or relating directly or indirectly to (a) the death of or bodily injury to any person or persons, including, without limitation, employees of Owner, (b) injury to property and (c) any breach or alleged breach of Owner's warranties, representations, obligations, covenants or agreements set forth in the Contract, and (iii) relate to or arise out of or result from, directly or indirectly, any act or omission of Owner, regardless of whether or not such Action is caused by a Contractor Indemnitee (subject to Section 14.4 below).

14.2 Defense Costs. Subject to the limitations set forth in Section 14.3 immediately below, the indemnification provisions of Section 14.1 above, including defense costs, shall include all attorneys' fees, investigation costs, expert witnesses, court costs, and other costs and expenses incurred by the Owner Indemnitees and Contractor Indemnitees, as the case are, to the extent their interests appear.

14.3 Hazardous Materials. Contractor, its Subcontractors, and Vendors shall have no responsibility for the discovery, presence, handling, removal or disposal of pre-existing hazardous materials discovered on the Site, including asbestos, asbestos products, poly-chlorinated biphenyl (PCB) or other substances classified as hazardous by the Environmental Protection Agency of the U.S. Government or any other federal, state or local government agency, except to the extent addressed or covered in the Contract Documents or otherwise made known to or reasonably foreseeable by Contractor. If Contractor discovers the presence of any hazardous materials at the Site not otherwise called out in the Contract Documents or otherwise made known to or reasonably foreseeable by Contractor, Contractor shall promptly report the presence and precise location of any such materials to Owner and immediately stop Work in the affected area unless requested otherwise by Owner.

14.4 Other Limitations. Subject to the provisions of this Section 14.4, the obligations in Section 14.1above shall apply to and include those claims, causes of action, damages, liabilities, losses, obligations, awards, judgments, costs and expenses arising from the negligent, tortuous, intentional or other acts of the Owner Indemnitees or Contractor Indemnitees, as the case may be, and such indemnification obligations are primary to any insurance in the names of the Owner Indemnitees or Contractor Indemnitees. In the event of contributory negligence by any Owner Indemnitee or Contractor Indemnitee, as the case may be, the indemnifying party shall only be liable for payment of such claims and losses (including defense costs) in direct proportion to the indemnifying party's percentage of fault, if any, as determined by a court of competent jurisdiction, or as may be mutually agreed upon by Owner and Contractor. The indemnification obligations in this Article 14 shall not be construed to negate, abridge, or reduce other rights or obligations of Contractor or Owner, including, but not limited to, any obligation of indemnity which would otherwise exist at law or otherwise in favor of an Owner Indemnitee or Contractor Indemnitee. If any Action occurs or is threatened, the indemnifying party shall defend the Owner Indemnitees or Contractor Indemnitees, as the case may be, with counsel reasonably acceptable to such Indemnitee, at the indemnifying party's expense, unless such Indemnitee elects to defend itself, in which case the indemnifying party shall pay for such Indemnitee's reasonable defense costs. The indemnification obligation of Contractor (or any Subcontractor) and Owner under this Article 14 or otherwise under the Contract Documents, shall not be limited in any way by any limitation on the amount or type of insurance coverages carried whether pursuant to the Contract Documents or otherwise, the amount of insurance proceeds available or paid (except the indemnifying party shall be entitled to an offset against their indemnity obligation to the extent of any insurance proceeds actually received by the indemnitee, without condition or reservation, relating to any Action for which the indemnitee seeks to be indemnified pursuant to an indemnity in this

Agreement), or any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor or any Subcontractor or Owner or other person or entity under workmen's compensation acts, disability benefit acts or other employee benefit acts. Provided, however, the liability limitations of Section 4.4 hereof shall apply to and limit Contractor's indemnity obligations in this Article 14 solely to the extent relating to damage for delay as set forth therein, and the liability limitations and releases in favor of Owner set forth in the Contract Documents, including Sections 11.7, 17.2.2, 17.3.2, 17.4, and 17.6 of this Agreement, shall be and are express limitations on Owner's indemnity obligations under this Article 14 (and all such indemnity obligations are expressly subject to any and all limitations on Owner's liability set forth in the Contract Documents).

14.5 Survival of Indemnification Provisions. The Contractor's indemnity obligations set forth in this Article 14 shall apply irrespective of whether or not any Subcontractors or Vendors obtain or fail to obtain insurance coverages as required herein, shall apply during the performance of any Work, and along with Owner's indemnity obligation in this Article 14 shall survive any termination of this Contract or the Final Completion of the Work.

14.6 Risk. Except to the extent expressly covered by the OCIP referenced in Article 15 below or otherwise expressly provided for in the Contract Documents, all Work (i) covered by the Contract Documents, (ii) done at the Site, (iii) in preparing or delivering materials or equipment, or (iv) providing services for the Project, or any or all of them, to or for the Project, shall be at the sole risk of Contractor.

ARTICLE XV.
INSURANCE

15.1 Owner Controlled Insurance Program

15.1.1 The Owner, at its expense, has implemented an Owner Controlled Insurance Program ("OCIP") to furnish certain insurance coverages with respect to on-Site activities. The OCIP will be for the benefit of the Owner and Contractor and Subcontractors of all tiers (unless specifically excluded) who have on-Site employees. Such coverage applies only to Work performed under the Contract Documents at the Site. The OCIP shall not include, and the Owner shall not be responsible for providing, any insurance coverages other than those specifically identified in the OCIP Manual (described in Section 15.1.2 below). In addition, the first $25,000 of each loss or damage covered under the Builder's Risk Insurance policy, or uninsured losses, shall be paid for by the responsible Contractor or Subcontractor. The Builder's Risk insurance provided by Owner also does not cover loss of, or damage to, any tools, implements, equipment, scaffolds, formwork, machinery, cranes, consumables, office trailers, tool sheds, temporary structures or anything else which is not intended to become a permanent part of the finished Project. The Contractor and eligible Subcontractors must provide their own insurance for off-Site activities and automobile liability pursuant to the OCIP Manual, and the costs of such insurance for Contractor shall be a Cost of the Work. To the extent Contractor and or any Subcontractor becomes ineligible for the OCIP or is no longer covered by the OCIP, Contractor and such Subcontractor shall provide all required insurance under the OCIP Manual as a Cost of the Work.

15.1.2 Details concerning the OCIP are provided in the OCIP Manual which is attached hereto as Exhibit P and incorporated herein by this reference, and which has been made available to Contractor and its Subcontractors, for use in preparing their bids and estimates and in planning the performance of their Work. Contractor and each Subcontractor will participate in the OCIP established for the project in accordance with the OCIP Manual. Participation in the OCIP is mandatory but not automatic. Contractor shall, and Contractor shall cause all Subcontractors to, complete all forms, submit the information required and abide by the mandates established in the OCIP Manual. Any exceptions to this requirement must be approved by Owner.

15.1.3 The Guaranteed Maximum Price agreed to by the parties under this Contract reflects a credit of $18,000,000.00 as provided in Column C of Exhibit F attached hereto, 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. 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 the OCIP audit. Contractor shall use all best efforts to carefully review all Subcontractor and pricing information to ensure that Owner is not required to pay a second time as part of Cost of the Work, for insurance coverages Owner has already purchased under the OCIP. Contractor shall also ensure that any Change Orders entered into pursuant to this Contract are priced so as to define all insurance costs to the reasonable satisfaction of the OCIP Manager.

15.2 Evidence of Coverage

15.2.1 Carriers Acceptable To Owner. All policies required of Contractor and Subcontractors pursuant to this Contract shall be maintained with insurance carriers that are acceptable to Owner and licensed in the State of Nevada.

15.2.2 Failure to Comply. Neither the Contractor nor any of its Subcontractors shall be entitled to receive payment for any Work performed, or to commence operations or Work on the Site or elsewhere until such time as they provide acceptable evidence of compliance with the requirements of this Article 15. Any additional costs or delays caused by or arising out of any failures to comply with this Article 15, including the failure to furnish acceptable Certificates of Insurance prior to date of the Date of Commencement, shall be solely the responsibility of Contractor and its Subcontractors.

15.3 Deductibles. If any policy required to be purchased pursuant to this Contract is subject to a deductible, self-insured retention or similar self-insurance mechanism which limit or otherwise reduces coverage, the deductible, self-insured retention or similar self-insurance mechanism shall be subject to Owner's and Owner's Lender reasonable approval and the responsibility of solely the Contractor in the event of any loss arising out of the acts or omissions of the Contractor, any Subcontractor or Vendor.

15.4 Cooperation by the Parties. Owner and Contractor shall fully cooperate with each other in connection with the collection of any insurance monies that are due in the event of a loss. Owner and Contractor shall promptly execute and deliver such proofs of loss and other instruments which may be required for the purpose of obtaining recovery of any such insurance monies.

15.5 Duration. All General Liability, Automobile Liability, Worker's Compensation and Employer's Liability insurance required by this Contract shall be kept in force without interruption until Final Completion of the Work in accordance with Section 12.2 above. Contractor and its Subcontractors shall maintain completed operations insurance for a period of two (2) years after Final Completion of the Work. The Builder's All-Risk Insurance shall remain in force until Contractor has achieved Final Completion of the Work in its entirety in accordance with Section 12.2 above.

ARTICLE XVI.
SAFETY AND COMPLIANCE

16.1 Contractor's Site Safety Responsibilities. Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work, and without limiting the foregoing, shall take all reasonable precautions for the safety of, and shall provide for all reasonable protections against loss of production time and prevent injury to, any of its employees, Subcontractors, Vendors, or their respective employees or any other persons who may be affected thereby, and all other persons at the Site or adjacent or nearby to the Site. Contractor shall prepare a site safety plan and submit such plan to Owner for review and comment prior to the

commencement of Work. Such plan shall identify the location of the fire safety system, alarm system, fire-fighting apparatus and exit routes. Safety gear shall be provided for representatives of Owner, Owner's Lender's and Architect's personnel and all others while on Site. Contractor shall designate a person responsible for job safety. This person shall be thoroughly familiar with Contractor's safety manual and Owner's Project Construction Safety and Health Guidelines (described below), and shall require compliance of all applicable provisions of such manual and Guidelines. Contractor shall keep a copy of such manual and Guidelines on the Site. Contractor shall familiarize all Subcontractors and Vendors on safety measures.

16.1.1 Contractor shall, and shall cause Subcontractors and Vendors to, take all precautionary measures as required by applicable laws to prevent and correct fire causing conditions, and shall conduct all operations with due regard for the avoidance of fire hazards. Contractor shall exercise the greatest care to prevent fires. The following minimum precautions shall be taken by Contractor and Contractor shall cause each Subcontractor and Vendor to take the following actions with regard to the Work:

16.1.1.1 Flammable liquids shall be stored in closed, approved, covered metal containers, and as approved by the fire wardens. All paint and oily rags shall be stored in approved containers and removed daily.

16.1.1.2 Each gasoline or diesel powered vehicle shall carry a fire extinguisher of adequate size and type to extinguish a fire emanating from either the vehicle or its load.

16.1.1.3 Contractor shall maintain a system of prompt detection and correction of unsafe practices and conditions, and shall furnish and maintain all necessary first aid equipment in a special location on the Site. Contractor shall investigate all accidents promptly to determine cause and to take necessary corrective action, and shall file required reports.

16.1.1.4 No exit, corridor, or stairwell shall be used for storage of materials of any type.

16.1.1.5 All exits, corridors and stairwells must be accessible and free of materials of any type except as necessary for the Work. Minimum exit widths as required by Laws shall be maintained at all times.

16.1.1.6 Hard hat and construction areas shall be identified and posted. All workmen and personnel in these areas shall wear a hard hat.

16.1.1.7 All electrical equipment and tools shall be of an adequate size to accomplish the task at hand and shall be properly grounded.

16.1.1.8 Face, eye and respiratory protection shall be available and used when the situation requires.

16.1.1.9 Provide and maintain suitable protections and enclosures around shafts, stairs and other openings in floors.

The foregoing requirements are not intended to be exclusive or exhaustive, and Owner shall not have any liability in any way relating to any of the foregoing or the absence of other requirements from the foregoing. Contractor shall be solely responsible to Owner for providing the Site a safe place to work for all persons (provided, however, Contractor shall not be responsible for the foregoing with regard to that portion of the Site under the control of the contractor for the parking garage). Contractor also agrees to and shall cause all Subcontractors and Vendors to, abide by Owner's Project Construction Safety and Health Guidelines (as the same may be amended, modified and supplemented from time to time by Owner), attached as Exhibit O to this Agreement.

16.2 Compliance. In addition to the requirements of Section 16.1 immediately above, Contractor shall give all notices, file all reports and obtain all permits which are applicable to the Contractor's

operations or performance of the Work. Upon request, Contractor shall furnish Owner and Owner's Lenders with copies of all such notices, statements, reports, certificates or permits evidencing compliance. Contractor shall also keep Owner informed of any changes in Laws which may affect Contractor's performance of the Work or Owner's use thereof. Contractor shall indemnify, defend and save harmless Owner and the other Owner Indemnitees from and against any and all claims, losses, liabilities, fines or penalties in any manner arising out of Contractor's failure to comply with this Article 16.

ARTICLE XVII.
TERMINATION OR SUSPENSION OF THE CONTRACT

17.1 Material Default By Contractor. Owner may, following expiration of the applicable period described in Section 17.1.1 below, and without prejudice to any other rights or remedies of Owner, terminate this Contract in its entirety, or may elect to terminate any portion of the Contractor's Work, for default if the Contractor, including any Subcontractor or Vendor, fails to perform any of its material obligations under the Contract Documents, including fails to perform the Work in a diligent, expeditious, workmanlike and careful manner strictly in accordance with the Contract, or any breach of its material obligations in the Contract Documents. Upon such default, Owner may take possession of the Site and of all materials, tools, equipment and machinery thereon and may finish the Work by whatever method Owner may in good faith deem desirable and or expedient (or may elect not to finish the Work).

17.1.1 Notice Of Default By Owner. The Contractor shall promptly correct any default to Owner's satisfaction within five (5) calendar days following receipt of written notice of default from Owner. If correction within said five (5) days is not possible, Contractor shall commence and diligently continue effective action to correct such default to Owner's satisfaction, but not later than sixty (60) days following receipt of Owner's notice (except for such longer period as may otherwise be reasonably approved in writing by Owner and Owner's Lenders). In the event that the Contractor fails to take and diligently pursue effective corrective actions, Owner may hold in abeyance further payments to Contractor and/or terminate the Contract by written notice specifying the date of termination and without prejudice to any other remedy Owner may have.

17.1.2 Other Defaults. Owner may also elect to declare Contractor in material default and may terminate Contractor immediately upon written notice (unless a longer period is otherwise expressly provided in this Agreement with regard to the matter in Sections 17.1.2.1 through 17.1.2.5 below, it being agreed that the cure periods in Section 17.1.1 above do not apply to Sections 17.1.2.1 through 17.1.2.5) and/or take such other action as Owner may be allowed, in the event of any of the following:

17.1.2.1 The commencement of an action or petition by or against Contractor under applicable bankruptcy laws, or any general assignment by Contractor for the benefit of its creditors or the appointment of a receiver or trustee to take charge of Contractor's assets;

17.1.2.2 Contractor's insolvency;

17.1.2.3 The recordation of a mechanics' or materialmens' lien on the Site or the Work by a Subcontractor, Vendor, laborer, materialman, or supplier or any other party providing services or material engaged by, on behalf of, or acting under the direction of Contractor or any Subcontractor or Vendor in connection with the Work, provided that such lien is not removed of record or satisfied by bond or other security, in an amount and with a bonding company reasonably satisfactory to Owner and Owner's Lenders within the time periods set forth in and pursuant to Section 7.19.2 hereof;

17.1.2.4 Failure of Contractor for five successive days or an aggregate of seven days in any thirty (30) day period (other than Sundays or national holidays), to have an adequate number of laborers or Subcontractors at the Site who are actively and productively working on the Project, unless a Force Majeure Delay or Owner Delay exists for such absence, unless within five (5) days after written notice from Owner Contractor has and thereafter maintains an adequate number of laborers and Subcontractors on Site actively and productively working on the Project;

17.1.2.5 Failure of Contractor after five days following request from Owner to provide Owner with satisfactory evidence of funds available to make up any overage with regard to the Guaranteed Maximum Price as required under Section 3.1.3 of this Agreement; or

17.1.2.6 Failure of Contractor or Guarantor to comply with the provisions of Section 4.6.2 hereof, within three (3) days after written notice to Contractor from Owner.

17.1.3 Stop Work Orders. In the event of any material breach or default of this Contract, and in lieu of declaring termination for default, Owner may elect to stop, delay, reduce or interrupt any operations of Contractor or any affected Subcontractors or Vendors until such default or failure is remedied to Owner's satisfaction. No part of the time lost due to stop work orders or delay, reduction or interruption by Owner arising out of such material breaches shall be made the subject of a claim for extension of time or for increased costs or damages by Contractor. No increase or upward adjustment shall be made in the Guaranteed Maximum Price or Contractor's Fee for, and in no event shall Owner be liable for, or Contractor or any Subcontractor or any other party performing any Work on the Site be entitled to, any lost opportunity, lost profit or consequential damages claimed or alleged by Contractor, any Subcontractor or any other party performing any Work on the Site and relating to any such stoppage, reduction, suspension, delay or interruption. The issuance of a stop work order or delay, reduction or interruption by Owner shall not prejudice Owner's right to subsequently terminate for default.

17.1.4 Owner's Rights Upon Termination For Default. If all or a portion of the Contractor's Work is terminated pursuant to this Section 17.1, Contractor shall not be entitled to receive any payment until after Final Completion by others and after Owner has assessed its additional costs and damages arising out of such termination, including, but not limited to, Owner's additional costs for completing all or the relevant portion of the Work. Upon such termination, Contractor shall immediately undertake all necessary steps to mitigate against Owner's damages, and shall:

17.1.4.1 Cease operations and vacate the Site to the extent specified in the notice of default;

17.1.4.2 Place no further orders and enter into no further subcontracts or purchase orders for materials, labor, services or facilities that relate to the terminated Work;

17.1.4.3 Upon Owner's request, terminate all subcontracts and purchase orders which relate to the terminated Work;

17.1.4.4 Upon request and as directed by Owner, assign (and/or Owner may accept the assignments made in this Agreement, as the case are) all of Contractor's right, title and interest to all subcontracts, purchase orders, rental agreements, materials, supplies and equipment using forms satisfactory to Owner and otherwise assist Owner in the orderly and expeditious transfer of such rights;

17.1.4.5 Turn over to Owner the originals of the Project Schedule and all Schedule Updates including all computer data bases on diskettes; all Drawings, Specifications and other construction documents; all as-built drawings, calculations and such other Work-related

documents and all items and things for whose cost Contractor requests or has requested reimbursement or payment;

17.1.4.6 Proceed to complete the performance of all Work not terminated;

17.1.4.7 Take such actions that may be necessary, or that Owner may direct, for the protection and preservation of the terminated Work;

17.1.4.8 Advise Owner of all outstanding subcontracts, rental agreements and purchase orders which Contractor has with others pertaining to the terminated Work and furnish Owner copies thereof;

17.1.4.9 Remove all of its property from the Site and Owner's premises. Any property not so removed may be removed by Owner at Contractor's expense; and

17.1.4.10 Allow Owner to take possession of all materials of any kind that have been paid for, that are to be incorporated into the Work, or to which Owner has any ownership rights or interest, and finish the Work and provide the materials therefor or contract with others to do so by whatever method Owner deems expedient and execute and do all such assurances, acts and things as Owner may consider expedient to facilitate Owner's taking of possession of the Site and materials, equipment, machinery and tools thereon, and shall give all notices, orders and directions which Owner may think expedient for the purposes hereof.

17.1.5 Payment to Contractor

17.1.5.1 If Owner terminates the Contract for Contractor's breach or default, Contractor shall thereafter only be entitled to reimbursement (subject to Section 17.1.5.3 hereof) only of such amount (if any), by which:

(a): the (i) Cost of the Work actually and properly completed by Contractor in accordance with the Contract Documents up to the date of such termination (and not cancelable or refundable), plus (ii) the pro rata portion of Contractor's Fee thereon (subject to satisfaction of the conditions applicable to progress and Final Payment contained in the Contract Documents as the case may be), but the foregoing amounts shall not exceed the portion of the Guaranteed Maximum Price (including Contractor's Fee) fairly allocable to the Work so completed, exceeds
(b): the total of (i) all payments theretofore made to Contractor under the Contract Documents, and (ii) all damages and other costs and expenses incurred by Owner directly or indirectly, arising out of or as a result of, Contractor's breach or default, including, without limitation, the cost of any additional consultants' services, or managerial and administrative services required thereby, any additional costs incurred in retaining another contractor or other Subcontractors, any additional financing, interest or fees and other costs that Owner must pay by reason of a delay in completion of the Work, Owner's termination of Contractor and the finishing of the Work by another method after such termination, attorneys' fees and expenses, and any other damages, costs, and expenses Owner may incur in completing the Work as a result of Contractor's breach or default including if Owner elects to complete the Project after such termination, the amount by which the actual cost of completing the Project (including components of the Project that are not part of the Work) is greater than what such actual cost (including the actual cost of components of the Project that are not part of the Work) would have been if Contractor had fulfilled its obligations under the Contract Documents, and if Owner elects to not complete the Project after such termination Contractor hereby acknowledges that Owner has the right to so elect without Owner waiving Contractor's liability for

damages arising out of the breach by Contractor that led to its termination, all damages suffered by Owner arising out of Contractor's breach of this Agreement.

17.1.5.2 If the amount referred to in Section 17.1.5.1.(b) hereinabove exceeds the amount referred to in Section 17.1.5.1.(a) hereinabove, Contractor shall pay the difference to Owner immediately upon Owner's demand.

17.1.5.3 Any reimbursements or payments made to Contractor under this Section 17.1.5 are conditioned on (a) Contractor previously having delivered to Owner possession and unfettered access to the Work and Site and all materials, equipment, tools and the like (undamaged and in good condition) which Owner has paid for and/or been billed for, (b) all the applicable items listed in, and performance of all the applicable obligations described in Section 12.2.1 of this Agreement have been satisfied, and (c) Contractor complies with such other obligations under the Contract Documents as Owner or Owner's Lenders reasonably requires.

17.2 Termination For Convenience. The parties' rights and remedies in the event of termination by Owner of all or a portion of the Work for Convenience shall be as follows:

17.2.1 Notice of Termination For Convenience. Owner may cancel this Contract in its entirety, or may elect to terminate any portion of the Contractor's Work, and take possession of the Site and all materials, tools, equipment and machinery thereon and finish or not finish the Work by whatever method Owner may desire, at any time upon written notice to Contractor solely for Owner's convenience and without regard to any fault or failure to perform by Contractor or any other party. Upon receipt of such notice of termination, Contractor shall immediately and in accordance with instructions from Owner proceed as follows:

17.2.1.1 Cease operations to the extent specified in the notice;

17.2.1.2 Place no further purchase orders and enter into no further subcontracts for materials, labor, services or facilities that relate to the terminated Work;

17.2.1.3 Cancel all subcontracts and orders that relate to the terminated Work;

17.2.1.4 Proceed to complete the performance of all Work not terminated;

17.2.1.5 Take such actions that may be necessary, or that Owner may direct, for the protection and preservation of the terminated Work; and

17.2.1.6 Take such action, including those actions in Section 17.1.4 hereof, as Owner may direct.

17.2.2 Payment Upon Termination For Convenience. In the event of termination for convenience, Contractor shall be paid as follows: Owner's sole obligation and liability to Contractor shall be (i) to reimburse Contractor (and Contractor's exclusive remedy shall be to receive reimbursement) for the Cost of the Work incurred (and not cancelable or refundable) by Contractor for Work properly performed and completed by Contractor up to the date of termination and approved by Owner in accordance with the Contract, plus (ii) that pro-rata portion of Contractor's Fee applicable to such completed Work (and subject to satisfaction of the conditions applicable to payments to Contractor set forth in the Contract Documents, including for progress payments, and Final Payment as applicable), but not in excess of the portion of the Guaranteed Maximum Price equitably allocable to such Work based on the percentage such properly performed and completed Work by Contractor bears to the total Work included within the Guaranteed Maximum Price, less all payments previously made to Contractor under the Contract and any amounts owed by Contractor to Owner under the Contract.

17.3 Suspensions By Owner

17.3.1 Owner's Right To Suspend For Convenience. Owner may at any time, with or without cause, suspend, delay, reduce or interrupt performance of all or any portion of the Work for such period or periods as Owner elects by giving Contractor written notice specifying which portion of the Work is to be suspended and the effective date of such suspension. Such suspension, delay or interruption shall continue until Owner terminates such suspension, delay or interruption by written notice to Contractor. No such suspension, delay, interruption or reduction by Owner shall constitute a breach or default by Owner under the Contract Documents. Contractor shall continue to diligently perform any remaining Work that is not suspended, delayed, reduced or interrupted and shall take all actions necessary to maintain and safeguard all materials, equipment, supplies and Work in progress affected by the suspension, delay, reduction or interruption.

17.3.2 Payment Upon Suspension For Convenience. In the event of suspension, delay, reduction or interruption for convenience by Owner, Owner shall pay Contractor and the Guaranteed Maximum Price shall be increased by such amounts (subject to the payment and related requirements of the Contract Documents) as follows:

17.3.2.1 Additional Costs of the Work, if any, which are incurred by Contractor, Subcontractors and Vendors as a result of continuing to maintain dedicated personnel, materials and equipment at the Site at Owner's request during any suspension, delay or interruption period, including for the purpose of safeguarding all material, equipment, supplies and Contractor's Work in progress caused solely by such suspension, delay or interruption ordered by Owner for convenience, but the Guaranteed Maximum Price shall be increased only if and to the extent such delay, suspension or interruption exceeds a period of thirty (30) consecutive days following commencement of the Work; and

17.3.2.2 Other reasonable and unavoidable Costs of the Work, if any, which are directly related to any subsequent re-mobilization of the suspended, delayed or interrupted Contractor's Work caused solely by such suspension, delay or interruption ordered by Owner for convenience, but the Guaranteed Maximum Price shall be increased only if and to the extent such delay, suspension or interruption exceeds a period of thirty (30) consecutive days following commencement of the Work.

17.3.2.3 Provided, however, that no adjustment shall be made to the extent that performance was otherwise subject to suspension, delay or interruption by another cause for which Contractor is responsible.

17.4 Limitations. Owner shall have no liability to Contractor or any Subcontractor or Vendor, and Contractor nor any Subcontractor or Vendor will make and they hereby waive any claim for (a) compensation, expenses, additional fees or anticipated profits for unperformed Work, (b) delays, acceleration or disruption, (c) lost business or other opportunities, (d) special, indirect or consequential damages or losses or loss of use, (e) impaired bonding capacity, (f) unabsorbed, unrealized or other overheads, or (g) general conditions costs attributable to a termination for convenience, suspensions, reductions, delays or interruptions for convenience (except to the extent provided in Section 17.3.2 hereof) or breach, or a termination for default by Owner, and in no event shall there be any increase in the Guaranteed Maximum Price (except as expressly provided in Section 17.3.2 above) or Contractor's Fee as a result of any of the foregoing Owner elections under Sections 17.2 or 17.3 above or due to any other delays. All amounts payable by Owner shall be subject to Owner's right of audit and offset.

17.5 Other Rights and Remedies. Other rights and remedies available to Owner in the event of a default or material breach by Contractor which is not timely cured in accordance with Section 17.1.1 hereof, shall include, but not be limited to, the following, and all such rights and remedies of

Contractor in this Article 17 shall be non-exclusive, and shall be in addition to all other rights and remedies available to Owner under the Contract, at law or otherwise:

17.5.1 A waiver by Owner of a default by Contractor shall not be considered to be a waiver of any subsequent default by Contractor, nor be deemed to amend or modify the terms of this Contract.

17.5.2 In the event of termination for cause, disputes as to whether a material breach of contract occurred within the provisions of the Contract Documents shall be subject to resolution pursuant to Article 22 of this Agreement. If Owner terminates this Contract in whole or in part for default and a court of competent jurisdiction later determines that such termination was improper or wrongful, then that portion of the improper or wrongful termination shall automatically convert into a termination for convenience, and such termination shall be treated as a termination for Owner's convenience pursuant to Section 17.2 of this Agreement.

17.5.3 Owner shall have the right and is authorized to cure such defaults and offset against and deduct from amounts otherwise payable to Contractor any such costs, damages, attorneys' fees and any other expenses suffered by Owner and arising out of such default including any cure or attempted cure by Owner, and all consultants and professionals additional services.

17.5.4 Any termination pursuant to this Article 17 shall be without prejudice to any other right or remedy of Owner pursuant to the terms of the Contract Documents or at law.

17.6 Contractor's Remedies

17.6.1 If payment from Owner for an Application for Progress Payment (exclusive of amounts properly retained or withheld under the Contract), approved by Owner and Owner's Lenders in accordance with Sections 5.2 and 5.3 of this Agreement, has not been received by Contractor within ten (10) days of the date payment is due pursuant to Section 5.3 of this Agreement, interest shall thereafter commence to accrue (from the original due date of payment pursuant to Section 5.3 hereof) on such delinquent amounts at then existing prime rate of Bank of America N.A. plus one percent (1%) as announced in the Wall Street Journal, until paid, and Contractor may upon written notice to Owner cease Work until such payment has been received, in which case the Guaranteed Date of Substantial Completion will be extended by the number of days of the cessation of Work, subject to the provisions of Section 11.6 hereof. If payment of undisputed amounts to which Contractor is otherwise then entitled pursuant to the terms of this Agreement are not paid by Owner to Contractor within fourteen (14) days after the expiration of the ten (10) day period hereinabove and written notice by Contractor that the same are past due, Contractor may terminate this Agreement upon an additional five (5) business days' written notice to Owner.

17.6.2 If Contractor terminates this Agreement with cause in accordance with this Agreement and such termination is accepted by Owner or challenged by Owner but upheld by a court of competent jurisdiction, Contractor shall be entitled, as its exclusive remedy (but including Section 24.7 hereof), to the recovery of the amounts (if any) to which Contractor would have been entitled had Owner, pursuant to Section 17.2 of this Agreement, terminated this Agreement for convenience effective as of the date this Agreement is so terminated by Contractor. Contractor, notwithstanding any provision of this Agreement or otherwise, shall in no event be entitled to or seek recovery of any other amounts (including, without limitation, consequential damages, lost profits, overhead, or similar amounts) in the event of any termination, including but not limited to under this Section 17.6.

ARTICLE XVIII.
CHANGE IN THE WORK

18.1 Change. A "Change" in the Work means an increase, decrease, variation, modification or change in Contractor's Work from that indicated in the Contract Documents, or modification to the Project Schedule. Suspensions and terminations for convenience shall be governed by Article 17 of this Agreement and shall not be considered a Change except to the extent provided therein. A Change can only be implemented by a Change Order or by Construction Change Directive. 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 Guaranteed Maximum Price or extension of the Contract Time. Changes in the Work shall be performed under applicable provisions of the Contract Documents, and Contractor shall proceed promptly, unless otherwise provided in the Change Order or Construction Change Directive.

18.2 Change Order. A "Change Order" is a written instrument prepared by Contractor and signed by Owner and Contractor, stating their agreement upon all of the following:

(a): a Change in the Work including a full description of such Change;
(b): the amount of the adjustment, if any, in the Guaranteed Maximum Price; and/or
(c): the extent of the adjustment, if any, in the Contract Time.

Methods used in determining adjustments to the Guaranteed Maximum Price or Contractor's Fee may include those listed in Section 18.4.3 hereof.

18.3 Change Proposal Request. At any time and from time to time prior to Final 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 ("Change Proposal Request"). A Change Proposal Request shall set out, in reasonable detail, the Changes in the Work requested by Owner. Within ten (10) days following its receipt of a Change Proposal Request, Contractor shall issue a Change Proposal (as defined in Section 18.3.1 below). Contractor shall also issue a Change Proposal: (i) when Contractor reasonably believes that a Change in the Work is necessary or desirable; or (ii) when a Change in the Work is made necessary by Laws. If Contractor refuses or fails to timely provide a Change Proposal, 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, including but not limited to: (i) the amount of increase or decrease in the Guaranteed Maximum Price, or (ii) the length of extension or advancement, if any, of the Contract Time, Owner: (a) may issue a Construction Change Directive pursuant to Section 18.4 hereof, (b) may 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, or (c) may engage other contractors, subcontractors and/or laborers to perform such Change in the Work, and Contractor shall cooperate fully with any such persons, and any such hiring by Owner or issuance of a Construction Change Directive shall not affect this Agreement in any manner (other than to provide for a reduction in the Guaranteed Maximum Price, equal to the value of such Work (but not less than the amount budgeted therefor in the Guaranteed Maximum Price) not being performed by Contractor, and in the Contractor's Fee applicable thereto) and shall not be deemed to be a constructive termination.

18.3.1 "Change Proposal" means a written proposal prepared and signed by Contractor setting forth (i) the Changes in the Work requested by Owner or proposed by Contractor, (ii) the amount of adjustment, if any, in the Guaranteed Maximum Price (including pursuant to Section 18.4.3 below) due to such Change, and (iii) the extent of adjustment, if any, in the

Contract Time due to such Change. A Change Proposal is only a proposal unless and until signed and accepted by Owner as a Change Order. Contractor shall also submit a Change Proposal to fix the cost of Allowance Items in the Guaranteed Maximum Price.

18.4 Construction Change Directive

18.4.1 "Construction Change Directive" means a written order, requested by Owner, prepared by Owner or Architect, and signed by Owner, and given to Contractor, directing a Change in the Work and stating a proposed basis for adjustments, if any, in the Guaranteed Maximum Price or Contract Time, or either of them or either combination of them.

18.4.2 Owner may, by Construction Change Directive, without invalidating or breaching the Contract, order a Change in the Work or apply a portion of the Owner Contingency. Upon receipt of a Construction Change Directive, Contractor shall promptly proceed with the Change in the Work involved (including implementing any reductions or accelerations 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 Guaranteed Maximum Price or Contract Time. Contractor agrees to immediately, when directed in writing by Owner, perform the Change in Work diligently and without delay.

18.4.3 If the Construction Change Directive provides for an adjustment to the Guaranteed Maximum Price, the adjustment may be based on one of the following methods:

(a): mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation;
(b): unit prices stated in the Contract Documents or subsequently agreed upon; or
(c): cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee, which cost shall be based upon a proposal by the appropriate party. Any proposals from Subcontractors shall not include any amounts for overhead and profit in excess of an aggregate of ten percent (10%) of the cost of such Subcontractor's Work, unless approved by Owner.

18.4.4 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 Guaranteed Maximum Price or Contract Time. 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 Guaranteed Maximum Price or Contract Time within ten (10) days after the delivery of the Construction Change Directive to Contractor, then the Construction Change Directive shall be deemed approved and shall become a Change Order, and Contractor shall have no right to any adjustment to the Guaranteed Maximum Price or Contract Time in excess of the adjustments, if any, provided in the Construction Change Directive.

18.4.5 If Contractor disagrees with the method or adjustment in the Guaranteed Maximum Price or the Scheduled Completion Date within the ten (10) calendar day time period provided in Subsection 18.4.4 above, and the parties are unable within a reasonable period of time to reach an agreement, the matter shall be resolved under Article 22 of this Agreement.

18.5 Determination of Increases in Guaranteed Maximum Price

18.5.1 Notwithstanding any other provision in the Contract Documents, and regardless of pricing method for any Change, any increase in the Guaranteed Maximum Price as a result of net

Changes in the Work (including a Construction Change Directive), shall not exceed the sum of: (a) the aggregate additional amounts (if any) actually paid by Contractor to its Subcontractors and Vendors for the applicable Change in the Work, without mark-up or other add-on by Contractor, and (b) the actual increase (if any) in the Cost of the Work incurred by Contractor with respect to the applicable Change in the Work to the extent (if any) such Change performed by Contractor directly. Any and all amounts or items excluded from the determination of the Cost of the Work, including all Non-Allowable Costs of the Work, shall also be excluded from the determination of the cost of any Change in the Work.

18.5.2 Whether or not Contractor is entitled to an increase in the Guaranteed Maximum Price or modification of the Contract Time pursuant to the Contract as a result of any Changes in the Work, in no event shall Contractor be entitled to, and Contractor hereby waives any claim to, an increase in the Contractor's Fee, due to any and all such Changes. Notwithstanding the foregoing sentence in this Section 18.5.2, if the aggregate net amount of all Changes (as reflected by Change Orders) increases the Guaranteed Maximum Price by more than $30,000,000.00 over the original Guaranteed Maximum Price of $901,883,710.00 set forth in Section 3.1 of this Agreement ("GMP Increase"), then subject to the terms of the Contract Documents Contractor's Fee shall be increased by an amount equal to 3.0% of the amount by which the Cost of the Work of all such Changes (when netted) exceed by $30,000,000 the original Guaranteed Maximum Price. Contractor has fully considered the impact of the foregoing limitation and acknowledgement, and accepts all consequences relating thereto.

18.6 Simultaneous Submittal Requirements. In the event that Contractor considers that any Change Proposal Request or Construction Change Directive may involve Changes to both the Guaranteed Maximum Price and the Contract Time, it shall be the Contractor's fundamental duty and an essential requirement of this Contract to make simultaneous submittals of all documents necessary to establish both such Changes in accordance with this Article 18, and to simultaneously prove entitlement to both such Changes, and without any reservation of rights for future consideration.

18.7 Continued Performance. Notwithstanding the status of any proposed, pending or disputed Change (including any Construction Change Directive) pursuant to this Article 18 or any Claim pursuant to Article 20 below, or any dispute, and so long as Owner continues to timely make payment to Contractor of amounts properly due Contractor under and subject to the terms of the Contract Documents and not in dispute, Contractor shall not be entitled to and will not suspend any services under the Contract Documents, but will continue to be bound by the terms and conditions of the Contract Documents and will continue to perform all services thereunder and proceed diligently with the performance of its Work in accordance with the terms hereof, including completing any Work described in any Construction Change Directive, unless Owner directs in writing otherwise.

18.8 Effect of Change Orders

18.8.1 Execution of a formal Change Order as defined in Subsection 18.1.2 above shall be the sole procedure for settlement of any and all issues concerning the Guaranteed Maximum Price and/or Contract Time, including any settlement based on a Claim pursuant to Article 20 hereof or pursuant to Article 22 hereof.

18.8.2 No Change shall be deemed as settled unless and until the parties sign a formal Change Order which fully and finally settles all pending issues pertaining to increases or decreases in the Guaranteed Maximum Price and/or the Contract Time and without any reservation of rights for future consideration. In that regard, the parties hereby agree that a signed Change Order shall be inclusive of any and all direct, indirect, consequential costs, damages or losses based upon any theory of recovery; including, but not limited to: actual damages; all time-related costs; total costs; modified total costs; Eichleay formula or other equitable adjustment theories; full compensation for general conditions; extended site supervision and administration; all field, site, branch and/or

home office overheads; all general and administrative costs; and any other similar direct, indirect and/or time-related costs howsoever derived or formulated.

18.8.3 Any statement added by the Contractor to the face of an otherwise valid Change Order, or contained in any transmittal or separate correspondence wherein the Contractor attempts to reserve rights to seek any further increases in the Contractor's Fee, Guaranteed Maximum Price and/or Contract Time shall be null and void.

18.8.4 Once the actual cost of such Change and corresponding extension, if any, in the Contract Time have been determined, prior to using such actual cost to make any increase in the Guaranteed Maximum Price, or extension in the Contract Time, 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 reduced Costs of the Work and/or advancement of the Contract Time, as the case may be (i.e., changes in the Work shall be netted out).

18.9 Verbal Instructions and Minor Changes in the Work. Contractor shall not be entitled to rely upon, and shall not implement any Change based only on, Owner's verbal instruction, except in emergency situations and when necessary to prevent the imminent threat of personal injuries or damage to the Work or Owner's existing property, or for minor Changes within Contractor's scope of Work which do not involve an adjustment in the Guaranteed Maximum Price or an extension of the Contract Time ("Minor Changes"). Such Minor Changes may be effected by written or verbal order at Owner's election at any time. If the Contractor does not agree that such order constitutes a Minor Change, Contractor shall submit a Change Proposal pursuant to Section 18.3.1 above; provided, however, Contractor shall still promptly perform the Work specified in the instruction or order from Owner.

18.10 Waiver and Release of Contractor's Rights. Contractor hereby confirms its willingness and ability to comply with the requirements of this Article 18. Contractor's failure to first comply with the requirements of this Article 18, including the timely notice requirements, shall constitute a waiver and release by Contractor of any and all rights to pursue a Claim as defined in Article 20 below.

18.10.1 Surety Waivers. Individual Change Orders or Construction Change Directives as described in the Contract Documents which when combined do not in the aggregate exceed ten percent (10%) of the Guaranteed Maximum Price, shall not be subject to inspection or approval by Contractor's surety on any performance or labor and material payment bond, whether or not the Change Orders (or Construction Change Directives) encompass "substantial" Changes in the scope of Work undertaken by Contractor. Contractor and/or Owner shall provide notice to the bonding company or companies which are identified as the issuer(s) of the Contractor's Performance and Payment Bond pursuant to Section 7.18.1 hereof (at the address provided in such Performance and Payment Bond), of the mutual execution of any Change Order that on a net basis increases the Guaranteed Maximum Price, and concurrent with such notice Owner shall provide notice to such bonding companies of the funding sources which Owner intends to utilize for such Change Orders.

ARTICLE XIX.
RECORD KEEPING AND AUDIT RIGHTS

19.1 Required Accounting Records. To facilitate audits by Owner or Owner's Lenders, including, without limitation, for any purpose related to Change Orders, Changes or Change Proposals, Contractor shall at all times implement and maintain, and require its Subcontractors and Vendors to implement and maintain, such cost control systems and daily record keeping procedures as may be necessary to attain proper fiscal management and detailed financial records for all costs related to the Work and as are otherwise reasonably satisfactory to Owner and Owner's Lenders. All cost and pricing data shall include, without limitation, the identification of any markups, vendor quotations and pricing

methodologies. Records to be maintained by the Contractor, its Subcontractors and Vendors for purposes of the Contract, including for purposes of all audits conducted pursuant to this Article 19 shall include, but not be limited to the following: (a) payroll records and payroll burden costs on actual wages and salaries (payroll taxes, insurance, benefits, etc.); (b) all correspondence, minutes of meetings, daily logs including schedule status reports, memoranda and other similar data; (c) items such as bids, proposals, estimating work sheets, quotes, cost recaps, tabulations, receipts, submittals, tax returns (except solely income tax returns), general ledger entries, canceled checks and computer data relating to the Work and this Contract, and (d) all other data relating to or arising out of the Work and any other similar supporting documentation reasonably required by Owner or Owner's Lenders. It is further agreed that records subject to audit include Project-related records maintained by parent companies, affiliates, subsidiaries or other related parties. Contractor's failure to cooperate or to provide access as described in this Article 19 shall be a material breach of this Contract.

19.2 Purpose and Extent of Record Access. Owner and Owner's Lenders, and their respective authorized representatives, shall have the right to fully and completely audit, copy, investigate and review, and shall be afforded useful access to all of the records described in Section 19.1 above at all reasonable times (both during performance of the Work and after Final Completion) for purposes of inspection, audit, review and copying to the full extent as Owner or Owner's Lenders may require relating to the Work or the Contract. All such Contractor's records and records of all Subcontractors and Vendors shall also be made available to Owner for purposes related to compliance with Owner's business ethics policies. Upon request, Contractor shall also fully cooperate in arranging interviews with Contractor's employees and shall require all Subcontractors and Vendors to likewise fully cooperate pursuant to this Article 19.

19.3 Record Keeping Formats. Contractor may elect to maintain part of the records described in Section 19.1 above in an electronic format. Contractor agrees that, if any Project-related information is maintained in an electronic format, such information will be made available to Owner and Owner's Lenders in a readily useable format within three (3) business days after a written request by Owner.

19.4 Certifications. Upon request, Contractor shall be required to certify that, to the best of its knowledge and belief, all data subject to audit pursuant to this Article 19 is accurate, complete and current. Such certifications shall be made by Contractor to Owner and Owner's Lenders in the case of this Contract, and by Subcontractors and Vendors to Contractor in the case of subcontracts and purchase orders.

19.5 Flow Down Provisions. Contractor shall require all Subcontractors and Vendors to comply with the provisions of this Article 19, by insertion of this "Right to Audit" clause (Sections 19.1 through 19.9 inclusive) into each respective related subcontract and purchase order of all tiers relating to the Work. Owner shall have the right (but not obligation) to act as Contractor's authorized representative for the purpose of conducting audits in accordance with this Article 19 of all accounting and Project-related records in the possession of all Subcontractors and Vendors. It is specifically understood, however, that Owner has no contractual relationship with any Subcontractor or Vendor of any tier. Likewise, it shall remain the Contractor's financial and contractual responsibility to resolve all such issues with its Subcontractors or Vendors. No such audit or activity by Owner or Owner's Lenders shall release Contractor or any Subcontractor from, or waive, any of Contractor's or any Subcontractor's obligations under the Contract Documents. Notwithstanding the provisions of this Article 19, Owner's and Owner's Lenders' right to audit as to Subcontractors with subcontracts on a lump sum basis shall be limited solely to those instances there is an allegation of fraud or similar misconduct involving such Subcontractor.

19.6 Remedies. Certification of information pursuant to Section 19.4 above, and subsequent approval by Owner of invoices, billings and Change Orders, shall not preclude a post-approval adjustment, including based upon a later Contract compliance or pricing audit. Specifically, Owner shall

have the right to reduce any payments to Contractor or any Subcontractor or Vendor by any amounts attributable to incorrect or otherwise defective cost data. Contractor's submission shall be considered defective when the cost or pricing data, as certified in accordance with provisions of Section 19.4, above, is not accurate, complete or current. If an audit inspection or examination, conducted in accordance with this Article 19, discloses overcharges by Contractor (or any Subcontractor or Vendor) of any nature in excess of $500,000.00 (including interest as provided in Section 17.6.1) hereof, Contractor shall reimburse or cause such Subcontractor or Vendor to reimburse, Owner for the total actual cost of Owner's audit associated with such overcharge, including but not limited to the actual costs of outside auditors and/or the use of Owner's internal auditor at internal billing rates.

19.7 Record Retention. Contractor shall preserve and make available to Owner and Owner's Lenders at Contractor's principal office in Las Vegas, Nevada, all such records and other data covered by this Article 19, for a minimum period of six (6) months after Final Payment is made or for such longer period as may be required by any Laws.

ARTICLE XX.
CLAIMS

20.1 Definition. A "Claim" is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between Owner and Contractor arising out of or relating to the Contract. Claims must be made by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim.

20.2 Notice. Claims by Contractor must be made within fourteen (14) days after occurrence of the event giving rise to such Claim. Claims must be made by written notice. An additional Claim made after the initial Claim has been implemented by Change Order will not be considered unless (a) based upon different facts from those giving rise to the initial Claim, and (b) submitted in a timely manner.

20.3 Pending Resolution. Notwithstanding any other provision of this Contract or the other Contract Documents to the Contrary, during the pendency of any dispute, action or proceeding between Contractor and Owner, so long as Owner continues to pay all undisputed amounts hereunder, Contractor shall continue to perform the Work diligently and in accordance with this Contract so as to complete the Work on or before the Guaranteed Date of Substantial Completion. Notwithstanding any provision to the contrary herein or in the other Contract Documents, Contractor shall not be relieved of any of its obligations hereunder unless and to the extent of a final judgment resolving any such dispute, action or proceeding. Contractor recognizes and acknowledges that the provisions of this Section and the completion of the Work on a timely basis notwithstanding any dispute, action or proceeding are fundamental to the contractual relationship established pursuant to this Contract, shall be specifically enforceable, and that Owner would not have entered into this Contract but for Contractor's agreement set forth herein. Contractor acknowledges that it understands and has duly considered and consulted with counsel concerning the significance of this provision.

20.4 Final Settlement of Claims. No Claim involving resolution of issues pertaining to the Guaranteed Maximum Price and/or Contract Time shall be deemed final until both parties sign a final and unconditional Change Order, or a court of competent jurisdiction makes a binding determination as described in Section 20.5 and Article 22 below. With respect to non-judicial settlements, final and unconditional Change Orders signed by both parties shall be a condition precedent to Owner's duty to make payments or adjust the Guaranteed Maximum Price or Contract Time.

20.5 Unresolved Claims. Any Claims or disputes arising out of this Contract which are not resolved by the parties after a reasonable period, may be pursued in accordance with Article 22 hereof.

Contractor shall identify in Contractor's Applications for Progress Payment and Application For Final Payment any such Claims which remain unresolved.

ARTICLE XXI.
OWNER'S LENDERS

21.1 Owner's Lenders. Contractor acknowledges and agrees that Owner has provided notice to Contractor, and Contractor shall before entering into any subcontract or purchase contract provide notice to every Subcontractor and Vendor, that Owner's funds for construction of the Project, including payment of the Guaranteed Maximum Price, shall be borrowed and or derived substantially from one or more lenders providing financing for the Project from time to time ("Owner's Lenders"), and Owner's ability to obtain such funds shall be subject to one or more loan documents and conditions precedent to advances thereunder. The term "Owner's Lenders" shall also mean and include any and all trustees, intercreditor agents, disbursement agents, administrative agents, consultants, architects, inspectors, construction managers, auditors and engineers appointed or retained directly or indirectly by or on behalf of any of Owner's Lenders.

21.2 Assignment and Default. Owner shall have the right to assign the Contract to any one or more Owner's Lenders. If an event of default by Owner has occurred under any loan documents relating to Owner's Lenders, Contractor agrees that Owner's Lenders may at anytime thereafter upon written notice to Contractor ("Lender's Notification"), require Contractor to continue to perform Work under the Contract, and in such Lender's Notification, Owner's Lenders may elect either to (a) not assume any of Owner's rights or obligations under the Contract, or (b) assume Owner's rights and obligations arising under the Contract from and after the date of Lender's Notification. Upon receipt of Lender's Notification, and notwithstanding any event of default by Owner under any such loan documents and whether Owner's Lenders elect clause (a) or (b), Contractor shall thereafter continue to properly perform the Work and its obligations under the Contract in accordance with the terms of the Contract, so long as Contractor continues to be paid, by either Owner or Owner's Lenders in accordance with the terms of this Agreement, for all Work not in dispute and properly performed in accordance with the terms of the Contract from and after the date of Lender's Notification.

21.3 Owner's Lenders Election. Notwithstanding any provision of the Contract which may give Contractor the right to terminate the Contract or suspend or discontinue performance thereunder, Contractor agrees not to terminate the Contract or suspend or discontinue performance thereunder without first providing Owner and Owner's Lenders with fourteen (14) days prior written notice, and during such fourteen (14) days Owner's Lenders may elect whether to (a) terminate the Contract and not cure any defaults of Owner and not assume any of Owner's obligations under the Contract, or (b) require Contractor to continue Contractor's performance under the Contract, but not assume any of Owner's obligations under the Contract, or (c) assume Owner's obligations arising under the Contract from and after the date of Owner's Lenders' election, and require Contractor to continue Contractor's performance under the Contract. If Owner's Lenders shall timely elect to proceed under either clause (b) or (c) herein, Contractor agrees not to terminate the Contract or suspend or discontinue its performance thereunder, and to continue to properly perform all Work and obligations under the Contract in accordance with the terms of the Contract and accept payment and/or performance from Owner or Owner's Lenders, so long as Contractor continues to be paid in accordance with the terms of this Agreement, for all Work not in dispute and properly performed in accordance with the terms of the Contract after Owner's Lenders' election under clause (b) or (c).

21.4 Payment and Work Continuation. Notwithstanding any other provision of the Contract or otherwise, including anything in this Article 21, and unless Owner's Lenders elect to assume the Contract, Owner's Lenders shall have no obligation to reimburse or pay Contractor for (a) any Work which has been the subject of a prior advance of loan funds by Owner's Lenders to Owner and paid to Contractor, and/or (b) any Work which is the subject of a dispute by Owner's Lenders as to its proper

quality, scope or compliance with the Contract. Owner's Lenders shall have the benefit of all claims, defenses to payment and setoffs available to Owner under the Contract as to amounts that Contractor contends are due for Work under the Contract. Notwithstanding any terms of the Contract to the contrary, Contractor will diligently continue to perform the Work and its obligations under the Contract notwithstanding any dispute arising with Owner, Owner's Lenders or any other person or entity, so long as Contractor continues to be paid in accordance with the terms of this Agreement for all Work not in dispute and properly performed in accordance with the terms of the Contract and not subject to a right to withhold as provided in the Contract. Except to the extent expressly provided in Section 21.3 hereof, nothing in this Contract, or otherwise, shall cause or impose any obligation on Owner's Lenders to fund any amounts, including any loan advance, to Contractor. Owner's Lenders may enforce the obligations of the Contract with the same force and effect as if enforced by Owner, and may (but need not) perform the obligations of Owner (unless Owner's Lenders elect to perform such obligations pursuant to this Article 21), and Contractor will accept any such performance in lieu of performance by Owner in satisfaction of Owner's obligations hereunder. Subject to the foregoing limitations on assignment and delegations, all of the terms and provisions of the Contract shall be binding upon and shall inure to the benefit of the parties to this Agreement, and their respective permitted transferees, successors, assigns and legal representatives.

21.5 Payments. Owner's Lenders shall have the right at any time and from time to time to make payment directly to Contractor and/or by joint payee check to Contractor and any Subcontractor or Vendor, for Work performed under the Contract.

21.6 Audit Rights. Owner's Lenders shall have and be entitled to all of the same audit and inspection rights, as Owner has under Article 19 of this Agreement.

21.7 Access. Owner's Lenders shall have and be entitled to all of the same rights to access and inspect the Site and Work, wherever located, as Owner has under the Contract documents, at reasonable times and upon reasonable notice and subject to reasonable safety precautions.

21.8 Material Changes. Contractor and Owner acknowledge and agree that certain Changes, including increases in the Guaranteed Maximum Price and extensions of the Contract Time, and allocation of the Owner Contingency, may be subject to the approval of Owner's Lenders and agrees that no such Changes shall become effective without such approval.

21.9 General Cooperation. Contractor agrees to cooperate fully with all such Owner's Lenders, including Contractor agrees to (a) provide written notice to Owner's Lenders of any Change in the Work, material Change in the manner or amounts paid to Contractor, extension or acceleration of Contract Time, or material Change in the Drawings or Specifications, (b) authorize Subcontractors and Vendors to communicate directly with Owner's Lenders regarding the progress of the Work, (c) provide Owner's Lenders with reasonable working space and access to telephone, copying and telecopying equipment, (d) communicate with Owner's Lenders and, on request to execute, provide and/or deliver as the case may be, such documents, certificates, consents, invoices and instruments, and other information, as Owner's Lenders may reasonably request with respect to the Work, the Project and/or payment of the cost thereof, (e) enter into such amendments to the Contract as Owner's Lenders may reasonably request so long as such amendments do not materially or substantially alter Contractor's rights, duties or obligations under the Contract Documents, (f) enter into a consent to assignment in favor of Owner's Lenders consenting to the collateral assignment of the Contract to Owner's Lenders and (g) otherwise facilitate Owner's Lenders review of the construction of the Project.

ARTICLE XXII.
DISPUTE RESOLUTION AND GOVERNING LAW

22.1 Judicial Determination. All Claims and disputes and other matters in question arising out of or relating to the Contract or the breach thereof, shall be decided by a court of competent

jurisdiction in the State or Federal Courts in the City of Las Vegas or County of Clark, Nevada. The existence of any claim, dispute or legal proceeding shall not relieve Contractor from its obligation to properly perform its Work as set forth in the Contract Documents.

22.2 Governing Law. The Contract Documents and any Judicial Determination instituted by the parties pursuant to this Contract shall be governed by the laws of the State of Nevada, without regard to Nevada's choice of law provisions.

22.3 Non-Waiver. In resolving disputes arising out of this Contract, it is expressly agreed that no action or failure to act by Owner, Contractor or any agent, representative, employee or officer of either of them (including Owner's Project Representative and Contractor's Site manager) shall constitute a waiver of any right or duty afforded to either party in the Contract Documents. It is likewise expressly agreed that any action or failure to act by either party shall not constitute approval of or acquiescence in any breach of this Contract, except as are specifically agreed to in writing by the parties' corporate officers.

22.4 Severability. The invalidity of any one of the covenants, agreements, conditions or provisions of the Contract Documents, or any portion thereof, shall not affect the remaining portions and the Contract Documents shall be construed as if such invalid covenant, agreement, condition or provision had not been included herein.

ARTICLE XXIII.
PROPRIETARY INFORMATION AND USE OF OWNER'S NAME

23.1 Proprietary Information. Owner considers all information (regardless of form) pertaining to the Project to be confidential and proprietary, including information which is prepared or developed by or through Contractor, Owner or Owner's other contractors, unless otherwise stated to Contractor in writing. Contractor shall not, and shall not allow, suffer or permit any Subcontractors or Vendors to, disclose any such information without Owner's prior written consent. Contractor shall obtain similar written agreements from each and every Subcontractor and Vendor as Owner may reasonably request.

23.2 Advertising and Use of Owner's Name. Contractor shall not issue any news releases or any other advertising pertaining to the Work or the Project, including advertising its participation in the Project, without obtaining Owner's prior written approval. Contractor hereby agrees not to use the name of Owner's premises, or any variation thereof, or any logos used by Owner, in connection with any of Contractor's business promotion activities or operations without Owner's prior written approval. Contractor shall require its Subcontractors and Vendors to comply with the requirements imposed upon Contractor by this Article 23, including obtaining Owner's prior written consent to the form and content of any promotional or advertising publications or materials which depict or refer to their respective roles in providing Work for the Project.

23.3 Use of Drawings. All plans, Drawings, Specifications and other documents furnished to Contractor, including, but not limited to, the Contract Documents, are the property of Owner and are for use solely with respect to the Work and are not to be used by Contractor or any Subcontractor on any other projects or for any other purpose.

ARTICLE XXIV.
MISCELLANEOUS PROVISIONS

24.1 Assignment. Because of the special experience Contractor has represented it has and unique nature of the services to be rendered by Contractor under the Contract Documents, Contractor shall not assign its interest in the Contract or delegate its obligations thereunder without the prior written consent of Owner. Any purported assignment by Contractor without such consent shall be null and void. Owner may at any time and from time to time, upon notice to but without consent of

Contractor, assign the Contract or delegate its obligations to an affiliate or subsidiary of Owner, or to an entity which acquires all or substantially all of Owner's interest in the Project or all or substantially all of the assets or member interests of Owner, and/or change its name from time to time. So long as Owner's assignee assumes in writing Owner's obligations and liabilities under the Contract, and Owner represents in writing at the time of assignment that the assignee has at least the same financial status as Owner does at the time of the assignment, Owner shall thereafter be released from its obligations and liabilities under the Contract.

24.2 Subordination. Notwithstanding any other provision of the Contract Documents, and notwithstanding the provisions of Section 108.225 (and any related Section) of the Nevada Revised Statutes, Contractor agrees for itself and for every Subcontractor and Vendor and every other person performing any services or providing any materials relating to the Work, that any and all liens and lien rights and benefits (including enforcement rights) Contractor and or any of the other foregoing parties may or do have under applicable law (including, without limitation, Nevada Revised Statutes Sections 108.221 to 108.246), shall at all times be subordinate and junior to any and all liens, security interests, mortgages, deeds of trust and other encumbrances of any kind (on the Site and otherwise) in favor of any of Owner's Lenders ("Lender Liens"), notwithstanding that Work may be or is commenced or done on, and materials may be or are furnished to, the Site prior to any Lender Liens being imposed upon or recorded against the Site or any of Owner's assets and before expiration of the time fixed under applicable law for filing of mechanics and materialmen's liens. Contractor shall, and Contractor shall cause every Subcontractor and Vendor at every tier, and any other person performing services or providing materials relating to the Work to, sign and deliver to Owner and Owner's Lenders from time to time upon request by Owner or any of Owner's Lenders: (a) written and recordable acknowledgments and restatements of the provisions of this Section 24.2 and the subordination described herein, and (b) such affidavits, certificates, releases, indemnities, waivers and instruments (and in form and content) as Owner's or Owner's Lender's title insurer shall require to allow such insurer to issue such title endorsements as Owner or Owner's Lenders require (including insuring first priority of Lender Liens). Contractor's or any Subcontractor's or Vendor's, failure, or the failure of any party for whom the foregoing are responsible or liable at law or under the Contract Documents, to provide the items required in clauses (a) and (b) hereinabove upon request, or Owner's or Owner's Lender's inability to obtain at any time endorsements to Owner's Lender's title policies (or issuance of initial title policies) insuring first priority of Lender Liens, including without limitation senior to any mechanics' or materialmen's lien or lien rights, shall constitute a material default and breach of the Contract Documents and failure of a condition to any payment by Owner owed to Contractor under the Contract or otherwise.

24.3 No Third-Party Beneficiaries. Except as may be expressly provided otherwise in this Contract, this Contract and the obligations of the parties are intended for the sole benefit of the parties and shall not create any rights in any other person or entity whatsoever except Owner and the Contractor.

24.4 Enforceability. In the event that any provision in the Contract Documents or any portion thereof is determined to be invalid, unenforceable or void, the remainder of the Contract Documents shall be fully binding with the same force and effect as though the invalid, unenforceable or void provision had been omitted.

24.5 Headings. Section and other headings are not to be considered part of this Agreement, have been included solely for the convenience of the parties, and are not intended to be full or accurate descriptions of the contents.

24.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

24.7 Legal Fees. The losing party shall promptly pay to the prevailing party as determined by a court of competent jurisdiction all costs, disbursements and reasonable attorneys' fees incurred in connection with any legal action, including mediation, in whole or in part, based on a breach of the Contract or other dispute arising out of or in connection with the Contract, including any Claim, or to enforce its rights under the Contract.

24.8 Waiver. No modifications of the Contract shall be binding unless executed in writing by the parties to this Agreement. No waiver of any of the provisions of the Contract shall be binding unless executed in writing by the waiving party, and any such waiver shall not constitute a waiver of any other provision of the Contract, nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided.

24.9 Intent of the Parties. Contractor and Owner acknowledge that applicable Nevada Revised Statutes in certain circumstances, among others (i) regulate the process by which an owner can withhold payment(s) to a contractor or subcontractor, including the amount(s) that can be withheld, and (ii) regulate when and how an owner or a contractor can terminate a construction contract and the available remedies upon such termination. It is the express intent of the parties that Contractor completely and unconditionally waive to the full extent allowable each and all of those Nevada Revised Statutes that are in conflict with the provisions of this Agreement, including those with regard to the matters described in the foregoing clauses (i) and (ii). Provided, however, Owner and Contractor acknowledge that some applicable provisions of the Nevada Revised Statutes cannot be waived. Accordingly, to the extent the foregoing waiver by Contractor is expressly prohibited by applicable Nevada Revised Statutes as to certain provisions thereof, Contractor's foregoing waiver shall not be deemed to extend to those non-waivable provisions of the Nevada Revised Statutes. In such circumstances, if any, where one or more provisions of this Agreement are in conflict with provisions of the Nevada Revised Statutes that cannot be waived, the offending portions of the provision in this Agreement shall be interpreted so as to be consistent with the non-waivable sections of the Nevada Revised Statutes. To the extent such interpretation renders any portions of this Agreement ineffective, it is the intent of the parties that only such offending portion shall be so deemed, and the remainder of the provision in this Agreement shall be of full force and effect.

24.10 Survival. Subject to the provisions of Section 5.8.7 hereof, the provisions of this Agreement, including Contractor's covenants, representations, guaranties, releases, warranties and indemnities and the benefit thereof, shall survive as valid and enforceable obligations notwithstanding any termination, cancellation or expiration of the Contract, acceptance of the Work, Final Completion of the Work or Project, or any combination of them. Establishment of the time periods as described in Article 10 hereof relates only to the specific obligations of Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents are sought to be enforced, nor to the time within which proceedings are commenced to establish Contractor's liability with respect to Contractor's obligations other than specifically to correct the Work.

24.11 Independent Contractor. While Contractor is required to perform the Work in strict accordance with the Contract Documents, Contractor shall at all times be an independent contractor and responsible for and have control over all construction means, methods, techniques, sequences and procedures for constructing, coordinating and scheduling all portions of the Work to achieve the requirements of the Contract Documents. Nothing in the Contract Documents shall be deemed to imply or represent or be construed to (a) make Contractor, its supervisors, employees, its Subcontractors or Vendors of any tier the agents, representatives or employees of Owner, or (b) create any partnership, joint venture, or other association or relationship between Owner and Contractor or any Subcontractor, nor shall anything contained in the Contract Documents be deemed to give any third party any claim or right of action against Owner or Contractor which does not otherwise exist without regard to the Contract Documents. Any approval, review, inspection, supervision direction or instruction by Owner or any party on behalf of Owner, including any of Owner's Lenders, in respect to

the Work or services of Contractor shall relate to the results Owner desires to obtain from the Work, and shall in no way affect Contractor's independent contractor status or obligation to perform the Work in accordance with the Contract Documents.

24.12 Privileged Business. Contractor acknowledges that Wynn Resorts, LLC, Valvino Lamore LLC and The Wynn Group, and their subsidiaries and other affiliated companies, are now and/or will be involved in the ownership and control of Owner, and the foregoing entities own and operate businesses that are subject to and exist because of privileged licenses issued by governmental authorities. If requested, Contractor shall, and Contractor shall cause all Subcontractors and Vendors to, timely provide Owner with such documentation and information to substantiate the fact that it has recent experience working in the resort casino industry and if required shall timely obtain any qualification or clearance required by any regulatory authority having jurisdiction over Owner or any of the foregoing entities or subsidiary or affiliate thereof. If Contractor or any Subcontractor or Vendor fails to satisfy such requirements or if Owner or any of the foregoing entities or any other affiliated company thereof is directed to cease doing business with Contractor or any Subcontractor or Vendor then such event shall be deemed a material breach of the Contract by Contractor and Owner shall have the right to terminate the Contract and/or any subcontract or purchase order, among all other remedies available to Owner.

24.13 Entire Agreement. The Contract Documents, as defined in Section 1.5 above, set forth the full and complete understanding of the parties as of the Effective Date of this Contract and supersede any and all agreements, understandings and representations made or dated prior thereto. Unless specifically enumerated or incorporated herein, the Contract Documents do not include any other documents, any qualifications to the Guaranteed Maximum Price or Contract Time contained in Contractor's bid or any correspondence or other proposals by either party dated prior to the Effective Date. No modifications of the Contract shall be binding unless executed in writing by the parties to this Agreement. Each and all of the Exhibits A through and including R referenced in this Agreement are hereby expressly incorporated herein by this reference.

ARTICLE XXV.
NOTICES

25.1 Notice Procedures. All notices, demands, requests, instructions and other communications relating to the Contract Documents (collectively, "Notices"), shall be in writing and effective upon actual receipt by the parties at the addresses listed below, whether sent by facsimile transmission (so long as received during normal business hours), regular mail or certified mail. Any notices sent by certified mail shall be effective not later than the date of delivery designated by the U.S. Postal Service.

25.2 Notices To Owner. All Notices to Owner (except requests for information, Shop Drawing submittals, instructions and similar notices) shall be sufficient when sent in accordance with Section 25.1 above and addressed as follows:

Wynn Las Vegas LLC
Attn: Legal Department
3145 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Facsimile No. (702) 733-4596
Telephone No. (702) 733-4556

Kenn Wynn, President
Wynn Design and Development LLC
3145 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Facsimile No. (702) 733-4738
Telephone No. (702) 733-4812

and

Todd Nisbet, Executive Vice President—Project Director
Wynn Design and Development LLC
3145 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Facsimile No. (702) 733-4715
Telephone No. (702) 733-4497

Contractor shall concurrently with delivery to Owner provide to Owner's Lenders copies of all Notices (except requests for information, Shop Drawing submittals, instructions and similar notices) at an address or addresses to be provided, with copies to:

Pamela B. Kelly
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
Facsimile No.: (213) 891-8763
Telephone No.: (213) 891-8726

25.3 Notices To Contractor. All Notices to Contractor shall be sufficient when sent as set forth in Section 25.1 above and addressed as follows:

Perry A. Eiman, President
Marnell Corrao Associates, Inc.
4495 South Polaris Avenue
Las Vegas, Nevada 89103
Facsimile No. (702) 739-8521
Telephone No. (702) 703-9413

and

Christopher L. Kaempfer, Esq.
Kummer Kaempfer Bonner & Renshaw
3800 Howard Hughes Parkway
Seventh Floor
Las Vegas, Nevada 89109
Facsimile No: (702) 796-7181
Telephone No.: (702) 792-7000

25.4 Change of Address. Either party may, from time to time, designate in accordance with this Article 25 a different individual and/or address to which Notices are to be delivered.

IN WITNESS WHEREOF, The parties hereby execute this Agreement by signature of their respective duly authorized representatives as of the Effective Date hereof.

OWNER:				CONTRACTOR:

WYNN LAS VEGAS, LLC, a Nevada limited liability company,				MARNELL CORRAO ASSOCIATES, INC., a Nevada corporation
By:	Wynn Resorts, LLC, a Nevada limited liability company,			By:	/s/ Anthony A. Marnell, II
	its sole member			Its:	Chairman
	By:	Valvino Lamore, LLC, a Nevada limited liability company, its sole member
		By:	/s/ Stephen A. Wynn
		Name:	Stephen A. Wynn
		Title:	Managing Member

For good and valuable consideration received, the undersigned Guarantor hereby acknowledges and agrees to comply with the provisions of Section 4.6.2 contained in this Agreement as they relate to Guarantor.

					GUARANTOR:
					Austi, Inc. a Nevada corporation

					By:	/s/ Anthony A. Marnell, II
					Its:	Chairman

EXHIBIT F—Attachment 3

EXCLUSIONS

The Following Items are specifically excluded from Marnell Corrao Associates Guaranteed Maximium Price (GMP)

1.

Architectural / Engineering Design Fees

2.

Interior Design Fees

3.

Major Building Permit / Planscheck Fees

4.

Transportation / Development Taxes

5.

Health Department Fees / Plan Review

6.

Testing and Inspection Fees

7.

Third Party Q.A.A. Fees

8.

Utility Connection and/or Service Fees (Sewer, Water, Power, Gas, Telephone, etc.)

9.

Nevada Power Company Line Extension / Equipment / Service Fees for New Substation

10.

Utility Costs

11.

Site Security Service Expenses

12.

Offsite Improvements (excepting those known Offsite Improvements specifically identified within the GMP)

13.

Owner Controlled Insurance Program (OCIP) costs including Builder's Risk and Worker's Compensation

14.

Loss of Use Insurance (to be provided by Owner, if desired)

15.

Existing Site Building Demolition

16.

Environmental Surveys, Abatement if required

17.

Landscaping and Irrigation (Exterior and Interior)

18.

Thematic Pottery / Sculptural Elements (Exterior and Interior)

19.

Golf Course Construction (By Others)

20.

Parking Garage Construction (By Others)

21.

Leased Retail Areas Build-out including Interior Finishes (Core and Shell construction of these areas is included in the GMP)

22.

All Gaming Equipment, Devices and Related Supplies, i.e.:

—: Gaming Tables
—: Gaming Seating
—: Pit Stands and related equipment
—: Change Stands and related equipment
—: Slot Machines
—: Slot Machine Stands
—: Slot Tracking Systems
—: Slot Signage
—: Keno Systems including wiring thereof
—: Race & Sports Book Betting System and Display Boards including wiring thereof
—: Bingo Systems including wiring thereof
—: Soft or Hard count Equipment/Systems
—: Cage Equipment
—: Money Carts, Coin Handling Devises
—: Safe Deposit Boxes, Cage Vaults, etc.

23.: Automated Room Entry Lock Systems including all equipment and wiring therefor
24.: Guestroom Equipment (Safes, Refrigerators, Ice Machines, Mini-Bars, Make-up Mirrors, Blow Dryers, Clock Radios, etc.)
25.: Guestroom Plumbing Fixtures Supply (Installation of same is included in the GMP)
26.: Ice Machines in Room Corridors

27.: Guestroom Televisions
28.: Guestroom Audio / Video Systems including all equipment and wiring therefor (VCR's, stereos, CD players, etc.)
29.: Programmable Controls (AMX) for Guestroom media, HVAC, and Lighting
30.: Public Area Televisions, Video Walls
31.: Master Antenna Systems, Cable Systems, In-room Movie Systems including all equipment and wiring therefor
32.: Telephones, Telephone Systems including all equipment and wiring therefor
33.: All Computer Systems including all equipment and wiring therefor
34.: Stand Alone UPS for Computer Systems
35.: FM 2000 Systems for Miscellaneaous Computer Rooms (Main Data Center Included)
36.: Cabling and Data Backbone (Low Voltage / Tele-Data) including Termination and Testing
37.: Hand Held Radio Systems
38.: Accoustiguide System
39.: Reader Boards including Data Cable therefor
40.: Maid Room Status Systems
41.: Point of Sale Systems including equipment and wiring therefor
42.: Employee Time clock Systems
43.: Uniform Issue Delivery/Storage Systems
44.: Package Conveyer (Mail Room)
45.: Laundry and/or Dry Cleaning Equipment including installation thereof
46.: Seamstress Equipment
47.: Pneumatic Tube Systems
48.: Show Theatrical Equipment / Systems (Audio, Projection/Video, Rigging, Lighting, Controls)
49.: Show Special Effects (Plumbing / Electrical Infrastructure is included as identified in the GMP Breakdown)
50.: Show Specialty Lifts / Stage Lifts (Stage Lift Electrical is included as identified in the GMP Breakdown)
51.: Show Sets
52.: Show Design/Production Costs
53.: Show Support Equipment and/or Tools
54.: Showroom and/or Special Event Seating
55.: Theatrical Lighting Fixtures @ Public Areas
56.: Executive Office A/V System including Teleconferencing
57.: Portable A/V Equipment for Convention/Meeting Rooms, Training Rooms
58.: Gym Equipment
59.: Salon Equipment
60.: Portable Heaters @ Patios
61.: Aroma Systems
62.: Beverage/Liquor Dispensing Systems including equipment and tubing therefor
63.: All Back of House items associated with Cooking and Eating (i.e. Flatware, China, Glasses, Cups, Silverware, Utensils, Pots, Pans, etc.)
64.: Bus Carts, Room Service Carts, Tables, Hardware, etc.
65.: Warehouse Racking/Storage Systems
66.: Warehouse / Loading Dock Handling Equipment (Forklifts, Dollies, Carts, Scales, etc)
67.: Housekeeping Equipment and Supplies
68.: Guestroom Supplies
69.: Towels & Linens
70.: All Paper and Sundry Items
71.: Employee and/or Storage Lockers
72.: Engineering Equipment, Tools, Supplies

73.

Paint Spray Booth Equipment

74.

Dust Collection Systems

75.

Photo / Dark Room Equipment

76.

All Office Equipment

77.

All Office Furnishings (i.e. Desks, Chairs, Conference Tables, File Cabinets, etc.)

78.

Vending Machines

79.

Trash and Ash Receptacles

80.

Trash Compactors

81.

Amusement Games/Machines

82.

FF&E Buyout Items @ Guestrooms/Guestroom Corridors

—: Room Furnishings (i.e. Beds, Box springs, Mattresses, Headboards, Dressers, Nightstands, Tables, Chairs, Sofas, etc.)
—: Vanity Cabinets Buyout (Installation of same is included in the GMP)
—: Draperies or other Window coverings
—: Decorative Light Fixtures including light bulbs (Chandeliers / Wallsconce -installation is included in the GMP)
—: Carpet (Installation is included in the GMP for the Highrise)
—: Wallcovering (Installation is included in the GMP)
—: Artwork, Artifacts, Murals
—: Interior Plantings
—: Room / Corridor / Lobby Signage

83.

FF&E Buyout Items @ Public Areas

—: Loose Furnishings (i.e. Tables, Chairs, Stools, etc.)
—: Draperies or other Window coverings
—: Decorative Light Fixtures including light bulbs (Chandeliers / Wallsconce installlation is included in the GMP)
—: Carpet
—: Wallcovering (Installation is included in the GMP)
—: Artwork, Artifacts
—: Interior Plantings

84.: FF&E Installation
85.: Golf Course Clubhouse Lockers / Locker Benches
86.: Marble/Granite/Stone Buyout and Delivery (Installation of Owner provided material is included excepting material to be set on Furniture)
87.: Sealing of Marble/Granite/Stone
88.: Custom Decorative Tile (Installation of Owner provided materials is included)
89.: Upholstered Fabric Panels
90.: Artisan provided Special Finishes applied to Walls/Ceilings (i.e. Hand-painted applications, Murals)
91.: Interior Signage
92.: Exterior Signage
93.: Models / Mock-ups
94.: Attic Stock and/or Spare Equipment/Materials
95.: Departmental FF&E, Inventory, and Supplies

xii

AGREEMENT FOR GUARANTEED MAXIMUM PRICE CONSTRUCTION SERVICES
BETWEEN
WYNN LAS VEGAS, LLC
AND
MARNELL CORRAO ASSOCIATES, INC.
FOR LE RÊVE

EXHIBIT G

GUARANTEED MAXIMUM PRICE PREMISES AND ASSUMPTIONS

General Understanding

1.: The Guaranteed Maximum Price (GMP) is based upon the square footage areas for each building function as defined in the March 8, 2002 Master Plan Drawings, and further described in columns A and B (with applicable comments) as set forth in Attachment 2 of Exhibit F attached to the Agreement for Guaranteed Maximum Price Services between Owner and Contractor ("Agreement") and to which this Exhibit G is attached. The area square footages as set forth in column B in Attachment 2 of Exhibit F are a fundamental premise, and significant variations in the individual area square footages and/or in the total square footage area will directly correlate to the Cost of the Work and may, after review and evaluation, require appropriate adjustments to the GMP.
2.: Owner and Contractor acknowledge that construction of the Project will commence without final Drawings and Specifications. More specifically while Drawings and Specifications are complete for certain portions of the Work, the design process will continue for other portions during construction. Owner accepts Contractor's role as an active participant in the design process, providing constructability and cost estimating services in a timely manner and method which supports the Project Schedule, all in accordance with and pursuant to the Agreement. Owner, Architect and their respective consultants agree to work with Contractor in the completion of the design documents and to meet with Contractor on a regular basis to review cost estimates, and recommended alternate means and methods required to meet the intended design within the budget parameters provided in the GMP.
3.: The overall design of the Project will provide for a facility of comparable building type, finishes and amenities of a quality level to compete with similar high-end casino resorts on the Las Vegas Strip.
4.: Owner acknowledges that preparation of the Drawings and Specifications in a timely manner pursuant to the Project Schedule, attached as Exhibit B to the Agreement, is required to provide Contractor with adequate time to provide the required pre-construction services pursuant to the Agreement.
5.: The Contractor's Scope of Work specifically excludes those items as identified in the GMP Exclusion List in Attachment 3 of Exhibit F attached to the Agreement.
6.: The GMP includes Allowance items as defined in Attachment 4 of Exhibit F attached to the Agreement.
Page 1 of 1

Project Area GMP Estimate Premises and Assumptions

1.

Highrise design documents have been completed and competitive bids received to validate the Highrise estimate values contained within the GMP.

2.

Lowrise Area 1 design documents which include the Central Plant facilities and equipment have been completed and competitive bids received to validate the Lowrise Area 1 estimate values contained within the GMP.

3.

The Lowrise Building Systems—Mechanical, Plumbing, Electrical, and Life Safety shall be designed to be comparable to systems utilized in similar high-end casino resort facilities in the Las Vegas area. The detailed design drawings and specifications issued for Lowrise Area 1 shall be the basis of the basic building systems, to be designed in Lowrise Areas 2, 3, 4 and 5. The Mechanical, Plumbing, Electrical and Life Safety Systems are further outlined as follows:

•: Mechanical Systems:

The Lowrise Mechanical Systems consists of the heating and cooling central plant that provides chilled water, hot water for both space heating and the production of domestic hot water and high-pressure steam for use in the kitchens within Areas 1 and 2. Pre-cooling water and tempered water is also produced at the Central Plant which is distributed to pre-cool/pre-heat coils to pre-treat outside air using an indirect evaporative cooling process. The Plant includes six (6) 1800 ton centrifugal chillers with matching 2-cell cooling towers, five (5) 500 BoHP low pressure hot water boilers producing 220°F hot water, two (2) 70 BoHP high pressure steam boilers with deaerator and boiler exhaust economizer and plate and frame heat exchangers for water side economizer and production of pre-cooling/pre-heating water.

A combination of VAV and constant volume air handling units are used throughout the Lowrise to provide air conditioning. The air-handling units are located within fan rooms and, in most cases, include exhaust fans for use with airside economizer and damper sections. Where applicable, the exhaust fans are also used for smoke control, having an appropriate fire alarm interface. Fan rooms which house the air handling units serving the casino, the spa and tower ventilation units incorporate a bank of pre-cool/pre-heat coils and filters on the outside air louvers creating a clean, treated outside air plenum. Entry of these spaces is via an "air lock" or vestibule.

Grease exhaust systems will incorporate both conventional exhaust fans/systems as well as pollution control units where appropriate to minimize the introduction of smoke and odors into adjacent air handling systems.

The entire facility will be controlled and monitored by a direct digital control system (EMCS). A single front end system including PC's, printers, color monitors and keyboard will enable the engineering staff to monitor, control and program the operation of each mechanical system. The EMCS features will be overridden only by the fire alarm system, where appropriate for smoke control functions.

The subterranean valet parking garage levels will be continuously exhausted, however, the fans will be controlled by carbon monoxide sensors that will minimize the fan run time. These fans will also be used for smoke control via fire alarm override. Make-up air fans will also be used as a part of this system in order to maintain maximum airflow velocities across ramp openings at 200 FPM when in the smoke exhaust mode.

Dedicated, water-cooled A.C. units will be used to cool equipment rooms that exhibit high heat gain. Pumps will be used to allow the chilled water return to be used as the condensing medium. Where required, these systems will be served by emergency or standby power with the chilled water piping system acting as a storage tank.

•: Plumbing Systems:

The Plumbing Systems consist of soil (conventional and grease), waste, vent, storm drain, hot and cold water and hot water return. Grease waste systems below grade (main lines) will be insulated using a factory fabricated high-density foam insulation with black polyethylene outer jacket and PVC carrier pipe. A notch-out is used for the electric heat tracing and allows for easy servicing of the heat trace or replacement, without having to expose the buried pipe. Domestic hot water is produced using water-to-water heat exchangers with 220°F boiler water from the Central Plant. Soft 140° hot water is produced at the Central Plant and distributed throughout the Lowrise areas. Tempering stations are used to reduce the water temperature as required for public use. The 140° hot water is used directly for food service applications. Tempered water downstream of tempering stations is heat traced in order to maintain the water temperature. The 140°F system is continuously recirculated.

Domestic hot water will be pre-heated via a stack heat reclaim system employed at one of the high-pressure steam boilers.

•: Electrical Systems:

Power and Distribution:

The property is served via three (3) Nevada Power Company (NPCo) utility service feeders each rated at approximately 10 MVA for a total of 30 MVA of normal power capacity. In addition, the standby-emergency power system provides 10 MW/13 MVA of generator capacity for the life safety/legally required and optional standby systems.

The 12.47 KV utility feeders terminate at three (3) meter mains located in the Nevada Power Company yard. From the meter mains, the three (3) major property feeders route to the building that houses the three (3) main medium voltage draw out circuit breaker distribution boards which in turn feed the normal source to the paralleling switchgear line up as well as the main medium voltage subdistribution switchgear.

Distribution for the property is at 12.47 KV and is routed via a system of underground conduits and manholes. Feeders are routed to 12.47 KV subdistribution switchgear that handles a specific region of the facility. The majority of the subdistribution switchgear is dual sourced with feeders that have physically separate routes. One feeder serves as the primary with the second serving as manual back up. The sources are mechanically interlocked via Kirk Keys which forces an open transition (break before make) manual transfer to the alternate feed and also avoids inadvertent paralleling of utility feeders. A portion of the distribution includes redundancy for the normal source whereas the majority includes one utility sourced feeder and a second from the generator system.

The subdistribution switchgear is concentrated in three locations in the Lowrise including the Central Plant, the south end of the casino and the north end of the casino. Retail, the lake feature, and the northeast end of the property also have 12.47 KV switchgear dedicated to the distribution for their associated regions of the facility.

The 12.47 KV switchgear at the various subdistribution areas feed dry type unit substations that step the voltage down and serve the main 480 volt and 208 volt distribution switchboards. The 480 volt and 208 volt switchboards feed all of the HVAC, lighting, elevators, etc. required for the property.

The distribution for the Central Plant includes three (3) 12.47KV subdistribution boards each with a separate feeder. Each NPCo feeder has one-third of the total plant load such that loss of any one utility source results in a plant capacity reduction of 33 percent. The three (3) Central Plant 12.47 KV switchboards have the capability of tying to either of the remaining two normal power feeders via Kirk Key interlocked manual transfer. In addition, manual transfer to the generator source is also possible via Kirk Key interlocked manual transfer.

Emergency and optional standby power are provided via diesel fuel engine generators. The generators tie into a common paralleling bus that enables aggregate capacity. The paralleling switchgear has a source feeder from each of the three (3) utility services and is configured in a split bus arrangement (three distinct bus sections). The bus arrangement makes tie to generators or a remaining utility source possible. The system is also configured to be selectable; in effect, if utility source A is lost, the sequence can be set up to transfer only the A bus to generators which maximizes available capacity for the lost feed.

System prioritization occurs at the paralleling switchgear with left safety/legally required as the highest priority and optional standby as the lower priorities. Once beyond the paralleling switchgear emergency/legally required and optional standby are completely independent segregated systems.

The casino distribution and other areas of the facility that are switch mode power supply intensive are being provided with harmonic mitigating transformers which both save energy and maintain power quality with respect to total harmonic distortion within the parameters of IEEE 519.

Fire Alarm Systems:

The property will be served via a fully addressable-networked fire alarm system. The central control station (fire command center) will house the head end equipment and graphic annunciators per highrise requirements. Network nodes (data gathering panels) are distributed throughout the property and serve a specific region of the facility. The system provides detection, annunciation, occupant notification and monitoring in accordance with highrise requirements and the parameters outlined in the Highrise Fire Protection Report.

4.: Structural Systems: The Lowrise structural systems are figured to be comparable to similar Type I resort facilities designed under the 1997 Uniform Building Code in the Las Vegas area. The basic structural systems have been established in concept and include cast-in-place concrete structure for the levels below the casino floor level including the parking levels and structural steel framing above the casino floor level. The current market pricing received for Area 1 of the Lowrise has served to further validate the estimate values contained within the GMP.
5.: Wall Systems and Building Envelope: The Lowrise exterior wall systems and interior partitions have been budgeted at a level that is consistent with the required quality levels and finish systems that have been specified and provided as a part of the Area 1 Construction Documents. The current market pricing received for Area 1 of the Lowrise has served to further validate the estimates contained within the GMP.
6.: The detailed design drawings and specifications issued for Lowrise Area 1 set the standards for Back-of-House area construction types and quality level which are anticipated to continue in Areas 2, 3, 4 and 5 for the Base Building Construction and Interior Finishes.
7.: The Master Plan Drawings dated March 8, 2002 define the finish floor and roof elevations of the various Lowrise building areas of the Project. They also contain preliminary structural column and grid locations to be used as a basis for the development of the final design documents.
8.: The Le Reve Project Lowrise General Criteria issued through May 30, 2002 have been reviewed and evaluated with regards to establishing the base building construction requirements. This document outlines the maximum ceiling heights, HVAC diffuser types/finishes, fire sprinkler type and finish and general lighting criteria for the Lowrise building areas, which shall be followed in the completion of the design documents.
9.: The Lowrise Interior Design Criteria issued through May 30, 2002 have been reviewed and evaluated with regards to establishing the base building construction requirements. This document outlines the proposed interior design concepts for various public areas throughout the project. The base building values included within the GMP support the basic infrastructure and build out requirements as they relate to these various public areas.

10.

Interior Allocations within the Contractor's GMP as set forth on Exhibit F attached to the Agreement, were established from historical cost information and Contractor's experience constructing similar high-end casino resorts on the Las Vegas Strip. Any re-allocations of the Interior Allocation values shall be made in accordance with Section 3.1.8.6 of the Agreement.

11.

Contractor provided Equipment and Miscellaneous Cost values within the GMP, as set forth in Column F in Attachment 2 of Exhibit F, are based upon the following:

•: Elevator and Escalator cost values were established from Request for Proposal and competitive bids received from subcontractors. Based on the bids received, the aggregate value within the GMP for elevators and escalators has been validated.
•: Food Service and Bar Equipment estimate values for all areas defined in Columns A and B in Attachment 2 of Exhibit F, attached to the Agreement, were established with considerable and detailed consultant and subcontractor input. Additionally, the Food Service and Bar Equipment within Area 1 has been competitively bid and validated to be within the values established in the GMP.
•: Other Equipment items within the Lowrise Area 1 that have been competitively bid and validated to be within the values for same within the GMP include: Operable Partitions, Convention Audio-Visual and Rigging, Loading Dock Equipment and Central Plant Equipment/Distribution.
•: Other items in this category were established from unit cost estimates and/or reliable historical cost data and include: vaults; skylights (other than those skylights specifically called out as "Allowances" in Exhibit F attached to the Agreement), gallery security system, stage lifts, baggage conveyor, warehouse paging system, water features / reflecting pools and misting systems as identified in Exhibit F attached to the Agreement.

12.

With regards to the leased retail outlets, the Contractor's Scope of Work is limited to the core and shell only of these areas. Tenant area build-out, inclusive of interior finishes is the responsibility of others.

13.

The Golf Lanais are to be constructed in a three-story, Type I, cast-in-place concrete structure with interior build-out and interior finishes comparable to the Highrise Salon Suites. The on-grade level Lanais include private pools and patios. The above-grade Lanais include private balconies overlooking the golf course. Each Lanai will have Owner provided programmable controls (AMX) for all media, HVAC and lighting.

14.

The Villas are to be constructed in a Type I structural steel-framed structure with interior build-out and interior finish levels comparable to luxury suites at other high-end casino resorts in Las Vegas. These suites include private garden/terrace areas with pools and spas. The pools and spas will have stainless steel shells supported off of a structural slab on metal deck. The landscape areas will be contained within planter areas of varying depths, built up from the structural slab on metal deck. The structural slab on metal deck will be waterproofed and contain drains to handle nuisance water. Each Villa will have Owner-provided programmable controls (AMX) for all media, HVAC and lighting.

15.

AA Marnell II, Chtd., (AAM) as the Architect of Record has developed progress drawings dated May 13, 2002 for the Aqua Theater. The construction drawings for the Aqua Theater shall be in substantial conformance with the progress drawings dated May 13, 2002.

16.

The Exterior Features scope of Work and associated estimate values within the GMP were established using the following criteria:

•: The Lake Basin construction estimate is based upon the area and elevations shown in the March 8, 2002 Master Plan Drawings. The construction of the lake, including required water filtration equipment and piping, will be similar to the lake basin constructed at similar resort

casino properties on the Las Vegas Strip. The lake basin construction includes a structural concrete slab over a sand cushion underlayed with a membrane lake liner.

•: The Mountain Feature scope of work is carried as an "Allowance" as identified in Exhibit F attached to the Agreement.
•: All Las Vegas Boulevard walks and Lakefront Embellishment estimates are based upon quantity surveys and unit pricing.
•: The Main and South Porte Cochere areas including all associated improvements are based on levels of design and construction commensurate with a high-end luxury resort on the Las Vegas Strip.
•: The Highrise exterior building lighting is estimated to provide for general uplighting of the building from various lowrise roof areas. Additional accent lighting is included for the decorative cornice at the top of the Highrise.
•: The Lowrise exterior building lighting is estimated to provide for comparable decorative and accent lighting to that provided at similar resort/casino properties on the Las Vegas Strip.
•: The Main Pool and VIP Pool areas have been budgeted utilizing historical cost data and consultant cost input.
•: The balance of the Exterior Features consisting primarily of public area patios and associated improvements have been estimated using quantity surveys and current unit pricing.

17.

Exterior Facades estimates have been established with specialty subcontractor input utilizing preliminary Architectural drawings and façade renderings prepared by Butler Ashworth Architects and Jerde Design Group, respectively.

18.

The Site Improvements scope of Work and associated estimate values within the GMP have been established from the March 8, 2002 Master Plan Drawings as follows:

•: The Valet and Taxi tunnels are estimated in accordance with the areas defined by Columns A and B in Attachment 2 of Exhibit F attached to the Agreement.
•: The Main Entry Drives and Site Roadways are estimated in accordance with the areas defined by Columns A and B in Attachment 2 of Exhibit F attached to the Agreement.
•: The Service Yards and Staging areas are estimated in accordance with the areas defined by Columns A and B in Attachment 2 of Exhibit F attached to the Agreement.
•: The Mass Excavation and Site Preparation value in the GMP is based upon Request for Proposals and competitive Subcontractor bid results.
•: The Wet Utility estimates included in the GMP are based upon Request for Proposal and competitive Subcontractor bid results.
•: The Dry Utility estimates have been established with subcontractor input from current progress design documents.

19.

Offsite Improvements contained within the Contractor's scope of Work are limited to the widening of Las Vegas Boulevard and temporary traffic signal improvements at the Sands and Koval intersection to facilitate the construction entrance. The estimate for the widening of Las Vegas Boulevard is based upon subcontractor bids procured from Offsite Improvement drawings prepared by Carter Burgess issued through April 17, 2002.

20.

Other Scope of Work Items

•: OSHA Fall Protection Requirements estimate is based on historical cost data extrapolated from a project of similar size and scope.

•: Exterior Skylight Maintenance / Window Washing System estimate is based on historical cost data extrapolated from a project of similar size and scope.
•: Security / Surveillance System estimate is based on historical cost data and the consultants' estimate for this Work.
•: Music and Page System estimate is based on historical cost data extrapolated from a project of similar size and scope.

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AGREEMENT FOR GUARANTEED MAXIMUM PRICE CONSTRUCTION SERVICES BETWEEN WYNN LAS VEGAS, LLC ("Owner") AND MARNELL CORRAO ASSOCIATES, INC. ("Contractor") FOR LE RÊVE
AGREEMENT
EXHIBIT F—Attachment 3 EXCLUSIONS