1
EXHIBIT 10.10
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND
PROJECT CONSTRUCTION MANAGEMENT CONSULTANT WHERE THE PROJECT CONSTRUCTION
MANAGER-MANAGEMENT CONSULTANT IS NOT A CONSTRUCTOR
AIA DOCUMENT B801/CMa - ELECTRONIC FORMAT
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THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY
IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION, AUTHENTICATION OF
THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.
This document is intended to be used in conjunction with the 1992 editions of
AIA Documents B141/CMa, A101/CMa and A201/CMa.
Copyright 1973, 1980, copyright 1992 by The American Institute of Architects,
1735 New York Avenue, N.W., Washington, D.C., 20006-5292. Reproduction of the
material herein or substantial quotation of its provisions without written
permission of the AIA violates the copyright laws of the United States and will
subject the violator to legal prosecution.
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AGREEMENT
made effective as of the 13th day of January in the year of nineteen hundred
ninety-eight.
(In words, indicate day, month and year)
BETWEEN the Owner:
(Name and address)
The Resort at Summerlin, Limited Partnership, a Nevada limited partnership, c/o
Seven Circle Resorts, Inc., 1160 Town Center Drive, Suite 200, Las Vegas,
Nevada 89134
and the Project Construction Management Consultant ("Construction Consultant"):
(Name and address)
Rider Hunt (NV) L.L.C., 2530 Paseo Del Prado, Building C, Suite 301, Las Vegas,
NV 89102
for the following Project:
(Include detailed description of Project, location, address and scope.)
The Resort at Summerlin - Hotel Casino & Entertainment Complex, more
particularly described as follows: A luxury Hotel of approximately 600 rooms
and a 49,000 square foot Casino, along with a Convention Center, Parking
Garage, Restaurants, Health Spa, Retail Shops, the entire 54.5 acre site on
which the Complex is to be located, and related furniture, furnishings, and
equipment. The Hotel consists of two towers, the second tower not being
significantly different than the first tower.
The Architect is:
(Name and address)
Paul Steelman Ltd., 3330 West Desert Inn Road, Las Vegas, Nevada 89102
The Construction Manager is:
J.A. Jones Construction Co., a North Carolina corporation, 1050 E. Flamingo
Road #E-127, Las Vegas, Nevada 89119
The Owner and Construction Consultant agree as set forth below.
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998.
AIA License Number 105525, which expires on 6/30/1998 - Page #1
2
Terms and Conditions of Agreement Between
Owner and Project Construction Management Consultant
ARTICLE 1
CONSTRUCTION CONSULTANT'S
RESPONSIBILITIES
1.1 CONSTRUCTION CONSULTANT'S SERVICES
1.1.1 The Construction Consultant's services consist of those services
performed by the Construction Consultant, Construction Consultant's employees
and Construction Consultant's consultants as enumerated in Articles 2 and 3 of
this Agreement and any other services included in Article 14.
1.1.2 The Construction Consultant's services shall be provided in
conjunction with the services of (i) an Architect as described in the edition
of AIA Document B141/CMa, Standard Form of Agreement Between Owner and
Architect, Construction Manager-Adviser Edition, current as of the date of this
Agreement as modified ("Architect Contract"); and (ii) the Construction Manager
as described in the edition of AIA Document A111, Standard Form of Agreement
Between Owner and Construction Manager, current as of the date of this
Agreement, as modified ("Construction Contract").
1.1.3 The Construction Consultant shall provide sufficient organization,
personnel and management to carry out the requirements of this Agreement in an
expeditious and economical manner consistent with the interests of the Owner.
1.1.4 The services covered by this Agreement are subject to the time
limitations contained in Subparagraph 13.5.1.
ARTICLE 2
SCOPE OF CONSTRUCTION CONSULTANT'S
BASIC SERVICES
2.1 DEFINITION
2.1.1 The Construction Consultant's Basic Services consist of those
described in Paragraphs 2.2 and 2.3 and any other services identified in
Article 14 as part of Basic Services.
2.2 PRE-CONSTRUCTION PHASE
2.2.1
2.2.2
2.2.3
2.2.4
2.2.5
2.2.6
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998.
AIA License Number 105525, which expires on 6/30/1998 - Page #2
3
2.2.7
2.2.8
2.2.9
2.2.10
2.2.11
2.2.12
2.2.13
2.2.14
2.2.15
2.2.16
2.2.17
2.2.18
2.2.19
2.2.20
2.2.21
2.3 CONSTRUCTION PHASE -
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM--3/16/1998. AIA License Number 105525, which expires on
6/30/1998--Page #3
4
ADMINISTRATION OF THE
CONSTRUCTION CONTRACT
2.3.1 The Construction Phase will commence with the award of the initial
Construction Contract or purchase order and, together with the Construction
Consultant's obligation to provide Basic Services under this Agreement, will end
on the later of Owner's written acceptance of the completed Project or
acceptance of a final account for the completed Project.
2.3.2
2.3.3
2.3.4
2.3.5
2.3.6
2.3.7
2.3.8
2.3.9 The Construction Consultant shall develop cash flow reports and forecasts
for the Project and advise the Owner and Architect as to variances between
actual and budgeted or estimated costs.
2.3.10 The Construction Consultant shall maintain accounting records on
authorized Work performed under unit costs, additional Work performed on the
basis of actual costs of labor and materials, and other Work requiring
accounting records.
2.3.11 The Construction Consultant shall develop and implement procedures for
the review and processing of applications by Construction Manager for progress
and final payments in strict compliance with Paragraphs 9.3, 9.4, 9.5 and 9.6.1
of the General Conditions of the Construction Contract and this Agreement.
2.3.11.1 Based on the Construction Consultant's observations and evaluations of
the Construction Manager's Application for Payment, the Construction Consultant
shall review and prepare a valuation of the appropriate amounts due the
Construction Managers.
2.3.11.2
2.3.11.3
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM--3/16/1998. AIA License Number 105525, which expires on
6/30/1998--Page #4
5
2.3.11.4
2.3.12
2.3.13 The Construction Consultant, in consultation with the owner and
Architect, may reject Work which does not conform to the requirements of the
Contract Documents, upon written direction of Owner.
2.3.14
2.3.15 With respect to the Construction Manager's own Work, the Construction
Consultant shall not have control over or charge of and shall not be responsible
for construction means, methods, techniques, sequences or procedures, or for
safety precautions and programs in connection with the Work of the Construction
Managers, since these are solely the Construction Manager's responsibility under
the Contract for Construction. The Construction Consultant shall not be
responsible for a Construction Manager's failure to carry out the Work in
accordance with the respective Contract Documents. The Construction Consultant
shall not have control over or charge of acts or omissions of the Construction
Managers, Subcontractors, or their agents or employees, or any other persons
performing portions of the Work not directly employed by the Construction
Consultant.
2.3.16
2.3.17 Upon direction of the Owner, the Construction Consultant shall review
requests for changes, assist in negotiating Construction Manager's proposals,
submit recommendations to the Architect and Owner, and, if they are accepted,
assist in the preparation of Change Orders and Construction Change Directives
for Owner's signature as provided in Paragraphs 7.2.1 and 7.3.1 of the General
Conditions.
2.3.18 The Construction Consultant shall assist the Architect in the review,
evaluation and documentation of Claims.
2.3.19
2.3.20
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM--3/16/1998. AIA License Number 105525, which expires on
6/30/1998--Page #5
6
2.3.21
2.3.22
2.3.23
2.3.24
2.3.25
2.3.26
2.3.27
2.3.28 Duties, responsibilities and limitations of authority of the
Construction Consultant as set forth in the Contract Documents shall not be
restricted, modified or extended without prior written consent of the Owner.
ARTICLE 3
ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 are not included in Basic
Services unless so identified in Article 14, and they shall be paid for by the
Owner as provided in this Agreement, in addition to the compensation for Basic
Services. The Optional Additional Services described under Paragraph 3.3 shall
only be provided if authorized or confirmed in writing by the Owner. If
services described under Contingent Additional Services in Paragraph 3.2 are
required due to circumstances beyond the Construction Consultant's control, the
Construction Consultant shall notify the Owner prior to commencing such
services. If the Owner deems that such services described under Paragraph 3.2
are not required, the Owner shall give prompt written notice to the
Construction Consultant. If the Owner indicates in writing that all or part of
such Contingent Additional Services are not required, the Construction
Consultant shall have no obligation to provide those services.
3.2 CONTINGENT ADDITIONAL SERVICES
3.2.1 Providing services required because of significant changes in the Project
including, but not limited to, changes in size, quality, complexity or the
Owner's schedule.
3.2.2 Providing consultation concerning replacement of Work damaged by fire or
other cause during construction, and furnishing services required in connection
with the
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998. AIA License Number 105525, which expires
on 6/30/1998 - Page #6
7
replacement of such Work.
3.2.3 Providing services made necessary by the termination or default of the
Architect or a Construction Manager, by major defects or deficiencies in the
Work of a Construction Manager, or by failure of performance of either the
Owner or Contractor under a Contract for Construction.
3.2.4
3.2.5 Providing services in connection with a public hearing, arbitration
proceeding or legal proceeding except where the Construction Consultant is party
thereto.
3.3 OPTIONAL ADDITIONAL SERVICES
3.3.1 Providing services relative to future facilities, systems and equipment.
3.3.2 Providing services to investigate existing conditions or facilities or to
provide measured drawings thereof.
3.3.3 Providing services to verify the accuracy of drawings or other
information furnished by the Owner.
3.3.4 Providing services required for or in connection with the Owner's
selection, procurement or installation of furniture, furnishings and related
equipment.
3.3.5
3.3.6
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 The Owner shall provide full information regarding requirements for the
Project, including a program which shall set forth the Owner's objectives,
schedule, constraints and criteria, including space requirements and
relationships, flexibility, expandability, special equipment, systems, and site
requirements.
4.2 The Owner shall establish and update an overall budget for the Project
based on consultation with the Construction Consultant and Architect, which
shall include the Construction Cost, the Owner's other costs and reasonable
contingencies related to all of these costs.
4.3 If requested by the Construction Consultant, the Owner shall furnish
evidence that financial arrangements have been made to fulfill the Owner's
obligations under this Agreement.
4.4 The Owner shall designate a representative authorized to act on the Owner's
behalf with respect to the Project. The Owner, or such authorized
representative, shall render decisions in a timely manner pertaining to
documents submitted by the Construction Consultant in order to avoid
unreasonable delay in the orderly and sequential progress of the Construction
Consultant's services.
4.5 The Owner shall retain an architect whose services, duties and
responsibilities are described in the edition of AIA Document B141/Cma,
Standard Form of Agreement Between Owner and Architect, Construction
Consultant-Adviser Edition, current as of the date of this Agreement, as
modified. The Construction Consultant shall not be responsible for actions taken
by the Architect.
4.6 The Owner shall furnish structural, mechanical, chemical, air and water
pollution tests, tests for hazardous materials, and other laboratory and
environmental tests, inspections and reports required by law or the Contract
Documents.
4.7 The Owner shall furnish all legal, accounting and insurance counseling
services as may be necessary at any time for the Project, including auditing
services the Owner may require to verify the Construction Manager's
Applications for Payment or to ascertain how or for what purposes the
Construction Managers have used the money paid by or on behalf of the Owner.
4.8 The Owner shall furnish the Construction Consultant with a reasonable
quantity of Construction Documents.
4.9 The services, information and reports required by Paragraphs 4.5 through
4.8 shall be furnished at the Owner's expense, and the Construction Consultant
shall be entitled to rely upon the accuracy and completeness thereof.
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998. AIA License Number 105525, which expires
on 6/30/1998 - Page #7
8
4.10 Prompt written notice shall be given by the Owner to the Construction
Consultant and Architect if the Owner becomes aware of any fault or defect in
the Project or nonconformance with the Contract Documents.
4.11 The Owner reserves the right to perform construction and operations
related to the Project with the Owner's own forces, and to award contracts in
connection with the Project which are not part of the Construction Consultant's
responsibilities under this Agreement. The Construction Consultant shall notify
the Owner if any such independent action will interfere with the Construction
Consultant's ability to perform the Construction Consultant's responsibilities
under this Agreement.
4.12 Information or services under the Owner's control shall be furnished
by the Owner with reasonable promptness to avoid delay in the orderly progress
of the Construction Consultant's services and the progress of the Work.
ARTICLE 5
CONSTRUCTION COST
5.1 DEFINITION
5.1.1 The Construction Cost shall be the total cost or estimated cost to
the Owner of all elements of the Project designed or specified by the Architect.
5.1.2 Construction Cost shall also include the compensation of the
Construction Consultant and Construction Consultant's consultants.
5.1.3 Construction Cost does not include the compensation of the Architect
and Architect's consultants, costs of the land, rights-of-way, financing or
other costs which are the responsibility of the Owner as provided in Article 4.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of
Construction Cost and detailed estimates of Construction Cost prepared by the
Construction Consultant represent the Construction Consultant's best judgment
as a person or entity familiar with the construction industry. It is
recognized, however, that neither the Construction Consultant nor the Owner has
control over the cost of labor, materials or equipment, over Construction
Managers' and subcontractor's methods of determining bid prices, or over
competitive bidding, market or negotiating conditions. Accordingly, the
Construction Consultant cannot and does not warrant or represent that bids or
negotiated prices will not vary from the Project budget proposed, established
or approved by the Owner, or from any cost estimate or evaluation prepared by
the Construction Consultant.
5.2.2
5.2.3
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998. AIA License Number 105525,
which expires on 6/30/1998 - Page #8
9
5.2.4
.1
.2
.3
.4
5.2.5
ARTICLE 6
CONSTRUCTION SUPPORT ACTIVITIES
6.1 Construction support activities, if provided by the Construction
Consultant, shall be governed by separate contractual agreements unless
otherwise provided in Article 14.
6.2 Reimbursable expenses listed in Article 14 for construction support
activities may be subject to trade discounts, rebates, and refunds which shall
accrue to the Owner, and the Construction Consultant shall make provisions so
that they can be secured.
ARTICLE 7
OWNERSHIP AND USE OF
ARCHITECT'S DRAWINGS, SPECIFICATIONS
AND OTHER DOCUMENTS
7.1 The Drawings, Specifications and other documents prepared by the Architect
are instruments of the Architect's service through which the Work to be executed
by the Construction Managers is described. The Construction Consultant may
retain one record set. The Construction Consultant shall not own or claim a
copyright in the Drawings, Specifications and other documents prepared by the
Architect, and unless otherwise indicated the Architect shall be deemed the
author of them and will retain all common law, statutory and other reserved
rights, in addition to the copyright. All copies of them, except the
Construction Consultant's record set, shall be returned or suitably accounted
for to the Architect, on request, upon completion of the Project. The Drawings,
Specifications and other documents prepared by the Architect, and copies thereof
furnished to the Construction Consultant, are for use solely with respect to
this Project. They are not to be used by the Construction Consultant on other
projects or for additions to this Project outside the scope of the Work without
the specific written consent of the Owner and Architect. The Construction
Consultant is granted a limited license to use and reproduce applicable portions
of the Drawings, Specifications and other documents prepared by the Architect
appropriate to and for use in the performance of the Construction Consultant's
services under this Agreement.
All copies made under this license shall bear the statutory copyright notice,
if any, shown on the Drawings, Specifications and other documents prepared by
the Architect. Submittal or distribution to meet official regulatory
requirements or for other purposes in connection with this Project is not to be
construed as publication in derogation of the Architect's copyright or other
reserved rights.
ARTICLE 8
ARBITRATION
8.1
8.2
8.3
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998. AIA License Number 105525,
which expires on 6/30/1998 - Page #9
10
8.4
8.5 LITIGATION
8.5.1 Any controversy or claim arising out of or related to this or the breach
thereof may be the subject of litigation.
8.5.2 WAIVER OF TRIAL BY JURY OWNER AND CONSTRUCTION CONSULTANT TO THE FULLEST
EXTENT THAT THEY MAY LAWFULLY DO SO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDINGS INCLUDING WITHOUT LIMITATION, ANY CONTRACT OR TORT ACTION RELATED TO
THIS CONTRACT.
Insert D: INITIALS __________ INITIALS __________
ARTICLE 9
TERMINATION, SUSPENSION OR
ABANDONMENT
9.1 This Agreement may be terminated by either party upon not less than seven
days' written notice should the other party fail substantially to perform in
accordance with the terms of this Agreement through no fault of the party
initiating the termination.
9.2 If the Project is suspended by the Owner for more than 30 consecutive
days, the Construction Consultant shall be compensated for services performed
prior to notice of such suspension. When the Project is resumed, the
Construction Consultant's compensation shall be equitably adjusted to provide
for expenses incurred in the interruption and resumption of the Construction
Consultant's services.
9.3 This Agreement may be terminated by the Owner upon not less than seven
days' written notice to the Construction Consultant in the event that the
Project is permanently abandoned. If the Project is abandoned by the Owner for
more than 90 consecutive days, the Construction Consultant may terminate this
Agreement by giving written notice.
9.4 Failure of the Owner to make payments to the Construction Consultant in
accordance with this Agreement shall be considered substantial nonperformance
and cause for termination.
9.5 If the Owner fails to make payment when due the Construction Consultant
for services and expenses, the Construction Consultant may, upon seven days'
written notice to the Owner, suspend performance of services under this
Agreement. Unless payment in full is received by the Construction Consultant
within seven days of the date of the notice, the suspension shall take effect
without further notice. In the event of a suspension of services, the
Construction Consultant shall have no liability to the Owner for delay or
damage caused to the Owner because of such suspension of services.
9.6 In the event of termination not the fault of the Construction Consultant,
the Construction Consultant shall be compensated for services performed prior
to termination, together with Reimbursable Expenses then due and all
Termination Expenses as defined in Paragraph 9.7.
9.7 Termination Expenses are the lesser of those reasonable costs directly
attributable to termination for which the Construction Consultant is not
otherwise compensated, or $10,000.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Unless otherwise provided, this Agreement shall be governed by the law of
the place where the Project is located.
10.2 Terms in this Agreement shall have the same meaning as those in the
edition of AIA Document A201/CMa, General Conditions of the Contract for
Construction, Construction Manager-Adviser Edition, current as of the date of
this Agreement, as modified, except as otherwise defined herein.
10.3 Causes of action between the parties to this Agreement pertaining to
acts or failures to act shall be
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998. AIA License Number 105525,
which expires on 6/30/1998 - Page #10
11
deemed to have accrued and the applicable statutes of limitations shall
commence to run not later than either the date of Substantial Completion for
acts or failures to act occurring prior to Substantial Completion, or the date
of issuance of the final Project Certificate for Payment for acts or failures
to act occurring after Substantial Completion.
10.4
10.5 The Owner and Construction Consultant, respectively, bind themselves, their
partners, successors, assigns and legal representatives to the other party to
this Agreement and to the partners, successors, assigns and legal
representatives of such other party with respect to all covenants of this
Agreement. Except as hereinafter provided, neither Owner nor Construction
Consultant shall assign this Agreement without the written consent of the
other. Notwithstanding anything to the contrary in this Agreement, the Owner
shall have the right to assign this Agreement to a lender for the purpose of
obtaining financing for the construction and/or completion of the Project and
the Construction Consultant agrees to (i) acknowledge and consent in writing to
such assignment, and (ii) acknowledge in writing, where the same is true, that
the Owner is not in breach of this Agreement. The Construction Consultant
shall, upon Owner's request, execute any instruments required by any lender to
confirm the foregoing consent and acknowledgment.
10.6 This Agreement represents the entire and integrated agreement between the
Owner and Construction Consultant and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be
amended only by written instrument signed by both Owner and Construction
Consultant.
10.7 Nothing contained in this Agreement shall create a contractual
relationship with or a cause of action in favor of a third party against either
the Owner or Construction Consultant.
10.8 Unless otherwise provided in this Agreement, the Construction Consultant
and the Construction Consultant's consultants shall have no responsibility for
the discovery, presence, handling, removal or disposal of or exposure of
persons to hazardous materials in any form at the Project site, including but
not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or
other toxic substances.
ARTICLE 11
INSURANCE
11.1 CONSTRUCTION CONSULTANT'S LIABILITY INSURANCE
11.1.1 SEE SUPPLEMENTARY CONDITIONS.
.1
.2
.3
.4
.5
.6
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998. AIA License Number 105525, which expires on
6/30/1998 - Page #11
12
11.1.2
ARTICLE 12
PAYMENTS TO THE CONSTRUCTION CONSULTANT
12.1 DIRECT PERSONNEL EXPENSE
12.1.1
12.2 REIMBURSABLE EXPENSES
12.2.1 Reimbursable Expense are in addition to compensation for Basic and
Additional Services and include expenses incurred by the Construction
Consultant and Construction Consultant's employees and consultants in the
interest of the Project, as identified in the following Clauses.
12.2.1.1 Reasonable expense of transportation in connection with the Project,
reasonable expenses in connection with authorized out-of-town travel;
long-distance communications; and fees paid for securing approval of
authorities having jurisdiction over the Project.
12.2.1.2 Expense of reproductions, postage, express deliveries, electronic
facsimile transmissions.
12.2.1.3 If authorized in writing in advance by the Owner, expense of overtime
work requiring higher than regular rates.
12.2.1.4 Expense of additional insurance coverage or limits requested by the
Owner in excess of that normally carried by the Construction Consultant.
12.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
12.3.1
12.3.2 Payments for Basic Services shall be made monthly on the basis set
forth in Subparagraph 13.2.1.
12.3.3 If and to the extent that the time initially established in
Subparagraph 13.5.1 of this Agreement is exceeded or extended through no fault
of the Construction Consultant, compensation for any services rendered during
the additional period of time shall be computed in the manner set forth in
Subparagraph 13.2.1.
12.3.4
12.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES AND REIMBURSABLE EXPENSES
12.4.1 Payments on account of the Construction Consultant's Additional
Services and for Reimbursable Expenses shall be made monthly upon presentation
of the Construction Consultant's statement of services rendered or expenses
incurred as provided in 13.3.1.
12.5 PAYMENTS WITHHELD
12.5.1 No deductions shall be made from the Construction Consultant's
compensation on account of penalty, liquidated damages or other sums withheld
from payments to Construction Managers, or on account of the cost of changes in
Work other than those for which the Construction Consultant has been found to
be liable.
12.6 CONSTRUCTION CONSULTANT ACCOUNTING RECORDS
12.6.1 Records of Reimbursable Expenses and expenses pertaining to
Additional Services and services performed on the basis of a multiple of Direct
Personnel Expense shall be available to the Owner or the Owner's authorized
representative at mutually convenient times.
- --------------------------------------------------------------------------------
AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998. AIA License Number 105525, which expires on
6/30/1998 - Page #12
13
ARTICLE 13
BASIS OF COMPENSATION
The Owner shall compensate the Construction Consultant as follows:
13.1
13.2 BASIC COMPENSATION
13.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services
included in Article 14 as part of Basic Services, Basic Compensation shall be
computed as follows:
Twenty thousand dollars ($20,000) per month payable in arrears. Construction
Consultant agrees to invoice such amount on a monthly basis commencing thirty
(30) days after the later of the date of this Agreement or the day on which
Construction Consultant first commences its services as provided in this
Agreement. Compensation for a fraction of the first or last month under this
Agreement shall be computed at a daily rate of $666.67 based upon a 30-day
month.
(Insert basis of compensation, including stipulated sums, multiples or
percentages.)
(Insert basis of compensation, including stipulated sums, multiples or
percentages.)
13.3 COMPENSATION FOR ADDITIONAL SERVICES
13.3.1 FOR ADDITIONAL SERVICES OF THE CONSTRUCTION CONSULTANT, as described
in Article 3, and any other services included in Article 14 as Additional
Services, compensation shall be computed as follows:
(Insert basis of compensation, including rates and/or multiples of Direct
Personnel Expense for Principals and employees, and identify Principals and
classify employees, if required. Identify specific services to which particular
methods of compensation apply, if necessary.)
An hourly basis at the following rates:
Principal $137.50/hour
Manager/Resident Manager $115.00/hour
Senior Quantity Surveyor/Estimator $ 95.00/hour
Quantity Surveyor/Estimator $ 85.00/hour
Technical Assistant $ 50.00/hour
13.4 REIMBURSABLE EXPENSES
13.4.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph 12.2, and any
other items included in Article 14 as Reimbursable Expenses, actual expenses
incurred by the Construction Consultant and the Construction Consultant's
employees and consultants in the interest of the Project.
13.5 ADDITIONAL PROVISIONS
13.5.1 IF THE BASIC SERVICES covered by this Agreement have not been
completed within eighteen (18) months of the date hereof, through no fault of
the Construction Consultant, extension of the Construction Consultant's
services beyond that time shall be compensated as provided in Subparagraph
13.2.1.
13.5.2 Payments are due and payable thirty (30) days from the date of the
Construction Consultant's invoice. Amounts unpaid thirty (30) days after the
invoice date shall bear interest at the rate entered below, or in the absence
thereof at the legal rate prevailing from time to time at the principal place
of business of the Construction Consultant.
(Insert rate of interest agreed upon.)
Twelve percent (12%) per annum.
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998.
AIA License Number 105525, which expires on 6/30/1998 - Page #13
14
(Usury laws and requirements under the Federal Truth in Lending Act, similar
state and local consumer credit laws and other regulations at the Owner's and
Construction Manager's principal places of business, the location of the
Project and elsewhere may affect the validity of this provision. Specific legal
advice should be obtained with respect to deletions or modifications, and also
regarding requirements such as written disclosures or waivers.)
13.5.3
13.5.4 Where authorization or approval is required of the Owner by this
Agreement, such authorization or approval must be in writing and signed by the
President of the Owner's General Partner who is presently Mr. Brian McMullan.
Mr. McMullan may delegate this authorization in writing to another officer of
Owner's General Partner, and Construction Consultant may rely on such
delegation.
13.5.5 The parties are aware of the "Rider to the Construction Agreement
Between the Resort at Summerlin and J.A. Jones Construction dated December 22,
1997" which modifies the designation of certain parties identified in the
Construction Contract. The parties herein understand and acknowledge that the
following terms in the Construction Contract are intended to and shall refer to
the corresponding terms used in this Agreement. By way of example only, where
the Construction Contract refers to the "Project Construction Consultant," such
reference means and refers to the same party who is identified as the Project
Construction Management Consultant (or "Construction Consultant") in this
Agreement.
(a) "Project Construction Manager" in the Construction Contract refers to
the same party identified in this Agreement as the Construction Consultant;
(b) "Trade Contractor(s)" in the Construction Contract refers to the same
party(ies) identified in this Agreement as the Subcontractor(s);
(c) "Trade Contract(s)" in the Construction Contract refers to the same
contracts identified in this Agreement as the Subcontract(s);
13.5.6 Copyright in all Feasibility Studies, Estimates, Reports and Schedules
of Construction Quantities prepared by Rider Hunt (NV) L.L.C. will remain the
property of Rider Hunt (LA) L.L.C. and these documents shall not be used on any
project not specifically covered by this appointment.
13.5.7 In the event of any action or proceeding between the parties, their
heirs, successors or assigns to interpret this Agreement or enforce any
provision or right hereunder, the prevailing party shall be entitled to recover
all costs and expenses (including, but not limited to, attorneys' and
accountants' fees, and other experts) incurred which amounts shall be included
as part of the judgment or award rendered in such action or proceeding.
ARTICLE 14
OTHER CONDITIONS OR SERVICES
(Insert description of other services, identify Additional Services included
within Basic Compensation and modifications to the payment and compensation
terms included in this Agreement.)
Basic Services shall include the following:
14.0.1 Construction Consultant shall provide Owner with a loose-leaf copy
and two (2) bound copies of all reports required to be prepared by Construction
Consultant under this Agreement.
14.0.2 Construction Consultant shall provide services for retail space,
except for retail space leased to tenants.
14.1 LIMITS ON INSURANCE
(Insert the specific dollar amounts for the appropriate insurance limits of
liability.)
This Agreement entered into as of the day and year first written above.
OWNER
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998. AIA License Number 105525, which expires on
6/30/1998 - Page #14
15
CONSTRUCTION CONSULTANT
- ----------------------------------- ---------------------------------------
(Signature) (Signature)
Signatures on next page]
- -----------------------------------
(Printed name and title)
(Printed name and title)
- --------------------------------------------------------------------------------
AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced
without violation until the date of expiration as noted below.
Electronic Format B801/CMa-1992
User Document: FORM - 3/16/1998. AIA License Number 105525, which expires
on -- Page 15
6/30/1998
16
SIGNATURE PAGE OF STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSTRUCTION CONSULTANT WHERE
THE CONSTRUCTION CONSULTANT IS NOT A CONSTRUCTOR
(AIA DOCUMENT B801/CMa)
OWNER:
THE RESORT AT SUMMERLIN, LIMITED PARTNERSHIP,
a Nevada limited partnership
By: The Resort at Summerlin, Inc.
a Nevada corporation
By:
----------------------------------
Its: President
---------------------------------
CONSTRUCTION CONSULTANT:
RIDER HUNT (NV) L.L.C.
By:
---------------------------------------
Its: Principal
--------------------------------------
Page #16
17
SUPPLEMENTARY CONDITIONS
The following supplements modify the "Standard Form of Agreement Between
Owner and Project Construction Management Consultant where the Project
Construction Management Consultant is NOT a Constructor," AIA Document B801/CMa,
1992, entered into between The Resort at Summerlin Limited Partnership, a Nevada
limited partnership, as Owner, and Rider Hunt (NV) L.L.C., a
, as Construction Consultant.
ARTICLE 11
INSURANCE
Article 11 shall be deleted and replaced with the following language:
11.1 OWNER CONTROLLED INSURANCE PROGRAM
11.1.1 As used in this Article 11, the following terms are defined as
follows:
OCIP Administrator:
or such other administrator as Owner may select
Insured:
The Owner, Construction Consultant, Contractors, Subcontractors and
Sub-subcontractors.
11.1.2 The Owner may or may not arrange for this Project to be insured
under an Owner Controlled Insurance Program (OCIP). If the Owner elects to
arrange for this Project to be insured under the OCIP, then the Owner shall
provide Worker's Compensation Insurance, General Liability Insurance and
Builder's Risk Insurance from the start of Work through final completion of
the Work.
11.1.3 The OCIP will provide insurance coverage for the Owner,
Construction Consultant, Contractor, any Subcontractor and any
Sub-subcontractor performing Work at the Project site. Off-site operations
shall be covered only if all operations at such site are necessary and
solely dedicated to the Project. It is the
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responsibility of the Construction Consultant to notify the OCIP
Administrator and Insurance Underwriter prior to any operations starting
at such site to include coverage for specified off-site operations.
11.1.4 All insurance underwriting payroll, ratings or loss history
information requested of the Construction Consultant by the Owner or the
Owner's OCIP Administrator must be provided within five (5) business days
of the request. At all times during this Agreement, the Construction
Consultant shall cooperate with the Owner and the Owner's OCIP
Administrator and OCIP insurers. After the Construction Consultant is
properly enrolled in the OCIP, the OCIP Administrator will issue or have
issued to the Construction Consultant prior to its commencing Work on the
Project site, Certificates of Insurance evidencing the coverages arranged
by the Owner.
11.1.5 The insurance premiums for the OCIP will be paid by the Owner. The
Construction Consultant will provide the Owner an estimate (to include
policy data, backup calculations, copies of declarative pages and rate
schedules from general liability, workers' compensation and excess
liability insurance policies) of the Construction Consultant's insurance
costs that the Owner has arranged for in the OCIP. The insurance cost
estimate must include costs for self-insurance programs and self-insured
retention and deductibles. The Construction Consultant represents the
accuracy of the information used to calculate the insurance costs and
agrees that the Owner, the OCIP Administrator, and/or the OCIP insurer may
audit the Construction Consultant's records and insurance agreements to
confirm the accuracy of the information. The Construction Consultant
further represents and agrees that the Owner is entitled to and may
determine additional insurance costs involving additional Work on the part
of the Construction Consultant.
11.1.6 An Insurance Manual (Manual) is included with the Contract
Documents and is a part of this Agreement. The Manual explains the OCIP
and contains the forms to be completed by the Construction Consultant. The
completed forms (OCIP-1 and OCIP-2) must be returned before this
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Agreement is executed. The Initial Insurance Credit forms (OCIP-1 and
OCIP-2) must include the estimated insurance costs of the Construction
Consultant. The Insurance Manual also contains all the administrative and
claim reporting procedures.
11.2 OWNER PROVIDED INSURANCE
11.2.1 THE OWNER'S INSURANCE. Prior to commencement of the Work, the
Owner, at its option and cost, shall secure and, except as otherwise
provided herein, maintain at all times during the performance of this
Agreement the insurance specified in Subparagraphs 11.2.2, 11.2.3, 11.2.4,
11.2.5 and 11.2.6 below, with the Owner, Construction Consultant,
Contractor, Subcontractors and such other persons or interests the Owner
may designate in connection with the performance of the Work as insured
parties and with limits not less than those specified below for each
coverage.
VENDORS, SUPPLIERS, FABRICATORS, MATERIALS DEALERS, DRIVERS AND OTHERS WHO
MERELY TRANSPORT, PICK-UP, DELIVER OR CARRY MATERIALS, PERSONNEL, PARTS OR
EQUIPMENT OR ANY OTHER ITEMS OR PERSONS TO OR FROM THE PROJECT SITE SHALL
NOT BE INCLUDED IN OCIP.
11.2.2 Workers' Compensation Insurance in compliance with the Workers'
Compensation Laws of the State of Nevada.
Limits
Part One - Workers' Compensation Statutory
11.2.3 General Liability Insurance (Excluding Automobile and
Professional Liability) in a form providing coverage not less than the
standard Commercial General Liability insurance policy
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(Insurance Services Office [ISO] Occurrence Form 1993)
Limits
General Aggregate $4,000,000
Products/Completed
Operations Aggregate $4,000,000
Personal/Advertising
Injury Aggregate $2,000,000
Each Occurrence Limit $2,000,000
Fire Damage Legal
Liability (any 1 fire) $1,000,000
Medical Expense $ 5,000
Stop Gap Liability
(Employer's Liability) $1,000,000
THIS INSURANCE WILL NOT EXTEND COVERAGE FOR PRODUCTS LIABILITY TO ANY INSURANCE
PARTY, VENDOR, SUPPLIER, MATERIAL DEALER OR OTHERS FOR ANY PRODUCT
MANUFACTURED, ASSEMBLED OR OTHERWISE WORKED ON AWAY FROM THE PROJECT SITE.
11.2.4 Umbrella (Excess) Liability Insurance with any excess umbrella layers
written on a strict following form basis over the primary umbrella.
Limits
Combined Single Limit $25,000,000
Each Occurrence
Project Aggregate $25,000,000
11.2.5 Builder's Risk Insurance is being negotiated and will be in the
amount of the initial contract sent with subsequent modifications for the
entire Work at the site.
a. Limits
Construction Value of
the Project $ TBD
b. Sublimits
Goods in Transit $ TBD
Off-Site Storage $ TBD
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c. Deductibles (Tentative)
On-Site $10,000
Off-Site Storage $10,000
Transit $10,000
If the Owner does not intend to purchase such property insurance required by
the Contract, the Owner shall inform the Contractor in writing. The Contractor
may then secure insurance which will protect the interests of the Contractor,
Subcontractors and Sub-subcontractors in the Work.
11.2.6 If the property insurance requires minimum deductibles and such
deductibles are identified in the Contract Documents, the Construction
Consultant shall pay costs not covered because of such deductibles. If the
Owner or insurer increases the required minimum deductibles above the amounts
so identified or if the Owner elects to purchase this insurance with voluntary
deductible amounts, the Owner shall be responsible for payment of the
additional costs not covered because of the increased or voluntary deductibles.
If deductibles are not identified in the Contract Documents, the Owner shall
pay costs not covered because of deductibles.
11.2.7 The Owner assumes no obligations to provide insurance other than that
evidenced by the policies referred to in 11.2;
THE FURNISHING OF SUCH INSURANCE BY THE OWNER SHALL IN NO WAY RELIEVE, OR LIMIT
OR BE CONSTRUED TO RELIEVE, OR LIMIT THE CONSTRUCTION CONSULTANT OF ANY
RESPONSIBILITY OR OBLIGATION WHATSOEVER OTHERWISE IMPOSED BY THIS AGREEMENT.
11.3 ALTERNATIVE INSURANCE
11.3.1 In the event the Owner for any reason elects not to furnish or after
commencement of Work elects not to furnish or to continue to furnish the
insurance as specified in 11.2.2, 11.2.3, 11.2.4 and 11.2.5 and upon thirty
(30) days written notice from the Owner, the Construction Consultant shall
secure at the Owner's cost and maintain such insurance specified in 11.3.2 and
11.3.3 below a may be required by the Owner.
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11.3.2 In the event the Construction Consultant has been required to secure
any insurance specified in 11.3.3 and 11.3.4 below, the Owner shall no longer
be obligated to furnish that part of the insurance specified in 11.2.2, 11.2.4
or 11.2.5 above. All insurance secured by the Construction Consultant pursuant
to the Owner's requirements under the provisions of 11.3 shall be in policies
subject to the Owner's approval as to form, content, limits of liability, cost
and insurance company.
11.3.3 Worker's Compensation Insurance in Statutory Limits of the Worker's
Compensation Laws of the State of Nevada.
Limits
Part One - Workers' Compensation Statutory
11.3.4 General Liability Insurance (Excluding Automobile and Professional
Liability) in a form providing coverage not less than the standard Commercial
General Liability insurance policy (Insurance Services Office [ISO] Occurrence
Form 1993).
Limits
General Aggregate $2,000,000
Products/Completed Operations Aggregate $2,000,000
Personal/Advertising Injury Aggregate $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Legal Liability (any 1 fire) $1,000,000
Medical Expense $5,000
Stop Gap Liability $1,000,000
11.3.5 Umbrella (Excess) Liability Insurance with any excess umbrella layers
written on a strict following form basis over the primary umbrella.
Limits-Contractor
Combined Single Limit $25,000,000
Each Occurrence
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Project Aggregate $25,000,000
Limits-Subcontractor and Sub-subcontractor
Combined Single Limit $10,000,000
Each Occurrence
Project Aggregate $10,000,000
11.3.6 The insurance required in Subparagraph 11.3.5 shall also include Stop
Gap (Employer's Liability) coverage in limits not less than the difference
between the limits specified in Subparagraph 11.3.3 and the limits in
Subparagraph 11.3.5.
11.4 CONSTRUCTION CONSULTANT PROVIDED INSURANCE
11.4.1 The Construction Consultant will provide and maintain insurance of
the type and in limits as set forth below. Such insurance shall name the
appropriate parties as insureds and shall be in a form and from insurance
companies acceptable to the Owner. The insurance required by the Owner may be
provided in policy or policies, primary and excess, including the umbrella or
catastrophe form. The limits of liability shall be as stated below, unless
prior to start of any Work, written approval is granted by the Owner for
variance from those limits.
11.4.2 Each liability policy required of the Construction Consultant will
name as additional insureds: the Owner, Owner's Representative, their
respective parent companies, the subsidiary, related and affiliated companies
of each, and any additional entities as the Owner may be required to be named
pursuant to any lease or contract as it relates to this Agreement. The
Additional Insured endorsement, equivalent to ISO form 2010 11/85 edition date,
will state that the coverage provided to the additional insureds is primary
and non-contributing with any other insurance available to the additional
insureds.
11.4.3 Commercial Automobile Liability Insurance in a form providing
coverage not less
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than the standard Commercial Automobile Liability form.
Limits
Combined Single Limit $1,000,000
11.4.4 Workers' Compensation Insurance for operations AWAY FROM THE PROJECT
SITE of the Construction Consultant in Statutory Limits of the Workers'
Compensation Laws of the State of Nevada.
a. Limits-Construction Consultant
Part One--Workers' Compensation Statutory
11.4.6 General Liability Insurance for operations away from the Project site
of the Construction Consultant (including products liability for any product
manufactured, assembled or otherwise worked on away from the Project site) in a
form providing coverage not less than the standard Commercial General Liability
Insurance policy ("Occurrence Form").
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a. Limits
General Aggregate $2,000,000
Products/Completed
Operations Aggregate $2,000,000
Personal/Advertising
Injury Aggregate $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Legal
Liability (any 1 fire) $1,000,000
Medical Expense $ 5,000
Stop Gap Liability $1,000,000
11.5 CONSTRUCTION CONSULTANT OPERATIONS
11.5.1 Construction Consultant shall not violate or knowingly permit to be
violated any conditions of the policies of insurance provided by the Owner
under the terms of this Article 11. The Construction Consultant agrees to keep
and maintain an accurate and classified record of its payroll data and
information in accordance with the requirements of the insurance company or
companies and to permit its books and records to be examined and audited
periodically by the insurance company or companies, the Owner or their
respective representatives.
11.6 NOTICES, COSTS, LOSSES
11.6.1 All policies of insurance the Construction Consultant or the Owner
are required under the terms of this Agreement to secure and maintain shall be
endorsed to provide that the insurance company shall notify the Owner,
Construction Consultant, and the Named Insured, at least sixty (60) days prior
to the effective date of any cancellation or modification of such policies.
Prior to the date on which Construction Consultant commences performance of its
part of the Work, Construction Consultant shall cause to be furnished to the
Owner Certificates of Insurance maintained by Construction Consultant in
connection with the performance of the Work. As and when the Owner may direct,
copies of the actual insurance policies or renewals or replacements thereof
shall be submitted to the Owner.
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11.6.2 In the event of any failure by Construction Consultant to comply with
the provisions of this Article 11, the Owner may, at its option, on notice to
Construction Consultant, suspend this Agreement for Cause until there is full
compliance with this Article 11 or terminate this Agreement for Cause.
11.6.3 The cost of the insurance specified above to be obtained by the Owner
will be paid for by the Owner, and the Owner shall receive and pay, as the case
may be, all adjustments in such costs, whether by way of dividends or
otherwise. Construction Consultant shall execute such instruments or assignment
as may be necessary to permit the Owner's receipt of such adjustments.
11.6.4 The cost of any losses sustained because of clauses that specify
deductible amounts in any of the insurance policies furnished by the Owner
shall be paid by the Construction Consultant.
11.6.5 Payments by the insurer for all losses covered under the Builder's
Risk policy as specified in 11.2.5 will be made to the Owner, for the interest
of all parties.
11.7 SUBROGATION AND WAIVER (CONSTRUCTION CONSULTANT PROVIDED INSURANCE
COVERAGES)
11.7.1 The Construction Consultant shall require all policies of insurance
that are related to the Work and are secured and maintained by the Construction
Consultant to include clauses providing that each insurance underwriter shall
waive all its rights of recovery, under subrogation or otherwise, against the
Owner, the Construction Consultant, the Contractor, separate Contractors, the
Subcontractors and the Sub-subcontractors. The Construction Consultant waives
all rights of recovery against the Owner, the Contractor, separate Contractors,
the Subcontractors and the Sub-subcontractors which Construction Consultant may
have or acquire because of deductible clauses in or inadequacy of limits of any
policies of
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insurance that are in any way related to the Work and that are secured and
maintained by the Construction Consultant.
11.8 COVERAGES
11.8.1 The coverages referred to above are set forth in full in the
respective policy forms, and the foregoing descriptions of such policies are
not intended to be complete or to alter or amend any provision of the actual
policies and in matters, if any, in which the said description may be
conflicting with such instruments, the provisions of the policies of the
insurance shall govern.
11.9 MISCELLANEOUS
11.9.1 Nothing contained in Article 11 shall relieve the Construction
Consultant of its obligations to exercise due care in the performance of its
duties in connection with the Work and complete the Work in strict compliance
with this Agreement.
11.10 CONSTRUCTION CONSULTANT'S EQUIPMENT INSURANCE
11.10.1 With respect to Construction Consultant's operations, the
Construction Consultant, at its option, shall purchase, maintain and pay for an
equipment floater on all construction trailers, machinery, tools, equipment and
other similar property and any deductible shall be for the account of
Construction Consultant. The policy shall contain a waiver of subrogation
endorsement. This insurance coverage shall be the sole recovery for any loss
covered by such insurance. In the event the Construction Consultant
self-insures, it also waives its right of recovery against Owner.
11.11 ADDITIONAL INSURANCE COVERAGE
11.11.1 The Construction Consultant agrees for its own account that if
broader coverage than is provided under this Article 11, or if higher limits
are deemed necessary by the Construction Consultant, that Construction
Consultant has either affirmatively elected to self assume the
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exposure or purchase additional insurance coverage, the additional cost of such
shall, under no circumstances, be reimbursed directly or indirectly by the
Owner.
11.12 RELEASE AND WAIVER
11.12.1 The Construction Consultant hereby releases the Owner, Owner's
partners, parent companies and affiliates of the Owner and any partner,
Contractor, Subcontractors, Sub-subcontractors, Architect and the directors,
officers, shareholders, employees and agents of the above-mentioned parties
(the "Released Parties") from any and all claims or causes of action whatsoever
which Construction Consultant and/or such parties might otherwise possess
resulting in or from or in any way connected with any loss covered or which
should have been covered by insurance, including the deductible portion
thereof, maintained and/or required to be maintained by Construction Consultant
pursuant to this Agreement.
11.12.2 This release is further intended to bind Construction Consultant's
insurers providing the insurance coverages stated in 11.3 and 11.4. The
Construction Consultant agrees to inform and obtain permission from its
insurers to release the Released Parties from any and all claims or causes of
action as provided above, so as to effectively waive any subrogation rights
of said insurers.
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