The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, (including design development and construction/bid sets). Specifications, Addenda to Drawings, if any, issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement; these form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than Modifications, appears in Article 15. If anything in the other Contract Documents is inconsistent with this Agreement, this Agreement shall govern. The parties acknowledge and agree that, notwithstanding the effective date of this Agreement, this Agreement will actually be executed some time after such effective date and, therefore, this Agreement incorporates changes in the Design Documents (as defined in the General Conditions) and correspondence between the Owner and Architect reflecting changes to Architect’s scope and/or Owner’s program after the effective date and prior to December 5, 2003 (as enumerated in Article 15 hereof). Further changes made after December 5, 2003 will be effective only if memorialized in a Change Order signed by Architect, Owner and Contractor and expressly intended to modify this Agreement.

Contractor acknowledges that since all or a portion of the Drawings and Specifications have not as yet received the approval of all appropriate tribal or other governmental agencies, they are not final. Contractor agrees to use its best efforts in assisting Architect, the other design consultants for the Project and Owner to develop final and complete Drawings and Specifications consistent with any requirements that may be made by the appropriate tribal or other governmental agencies in connection with their approvals, consistent with the intent of the Contract Documents and within the Guaranteed Maximum Price hereinafter specified. Furthermore, Contractor shall develop such unit price breakdowns and schedules as Owner or Architect may reasonably require. In that regard and subject to Scope Changes as contemplated in subparagraph 5.2.6.1.1 hereof that are not reasonably inferable from the Contract Documents in their present state, variances between One Hundred Percent (100%) completed and permittable Drawings and Specifications and the Contract Documents shall in no event result in an increase in the Guaranteed Maximum Price or an extension of Scheduled Completion Date (as those terms are hereinafter defined), provided that the Project schedule is not impacted by any delay(s) in the completion of the Drawings, the Specifications and the Contract Documents.

In the event of conflict between the provisions of the Contract Documents, Owner shall specify which provision shall prevail in each instance (except that the provisions of this Agreement shall prevail over all other Contract Documents).

The Contractor shall fully execute the Work described in the Contract Documents, and shall provide initial preparation and subsequent periodic updating of a Critical Path Method Schedule (“CPM Schedule”) except to the extent specifically

indicated in the Contract Documents to be the responsibility of others. The initial CPM Schedule shall be attached to this Agreement as Exhibit “2.1.”

2.1   The Contractor shall perform, or cause to be performed, the entire Work of construction and construction related services required by the Contract Documents to complete the Project in accordance with the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others. In connection therewith, Contractor shall provide all materials, labor and equipment, supervision, services, tools, construction equipment, transportation, expertise and subcontracted items required for the construction of the Project in accordance with the Contract Documents and consistent with Paragraph 3.6 of the General Conditions. All Contract Documents are intended to be cooperative and complimentary so that any Work called for in one Contract Document and not mentioned in the other is to be executed the same as in the other. The Work includes and contractor shall perform all things reasonably inferable from the Contract Documents as being necessary to produce the intended results for the completion of the Work. The standard of quality for all materials used in the construction work to be performed by Contractor shall be equal or comparable to that quality identified in the Design Development Drawings, Specifications and Construction Drawings completed to date and in existing construction.

2.2   Contractor and Owner acknowledge and agree that this is a “fast track” project and that all information necessary to construct this Project has not been delivered to Contractor and such information will be delivered to Contractor, Contractor and Owner further acknowledge an agree that the Work may be constructed out of sequence and such out of sequence construction shall not, in itself, constitute any reason for Contractor not to complete the Work on a timely basis in accordance with the completion schedule anticipated for the Project, provided that such out of sequence Work does not at such time materially adversely affect the critical path of construction. Any changes to the proposed completion schedule, if necessary, shall be identified promptly. Contractor further acknowledges that the layout, use, location, and/or design of certain aspects of the Project may materially change. All of such changes, other than items resulting from value engineering efforts or changes in scope, shall not affect the terms of the Contract Documents and the performance of Contractor hereunder.

The Contractor accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Owner and the Architect and exercise the Contractor’s best skill , efforts and judgment in furthering the interests of the Owner; to furnish efficient business administration and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in the best way and most an expeditious and economical manner consistent with the Owner’s interests. The Owner agrees to exercise best efforts to furnish and approve, in a timely manner, information required by the Contractor and to make payments to the Contractor in accordance with the requirements of the Contract Documents.

4.1   The date of commencement shall be the Effective Date of this Agreement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner.
(Insert the date of commencement, if it differs from the date of this Agreement or, if applicable, state that the date will be fixed in a notice to proceed.)

If, prior to commencement of the Work, the Owner required time to file mortgages, mechanic’s liens and other security interests, the Owner’s time requirement shall be as follows: N/A

4.2   The Contract Time shall be measured from the date of commencement.

4.3   The Contractor shall achieve Substantial Completion of the entire Work not later than November 22, 2004 days from the date of commencement, or as follows:
(Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. Unless stated elsewhere in the Contract Documents, insert any requirements for earlier Substantial Completion of certain portions of the Work.)

4.4      If the Substantial Completion Date of the Work is delayed solely for any cause beyond Contractor’s control, including, but not limited to any neglect or default of the Owners, Owner’s Lender (as defined elsewhere herein), Architect or by any employee or representative of any of them, or by any separate contractor employed by the Owner,

or the building department or other governmental authority of the Tribe or any other authority having jurisdiction, or by injunction, or by control or regulations of the Tribe or any other authority having jurisdiction, or by any unusual delay in deliveries by third parties employed directly by Owner or by shortages of labor or materials, or both, extending on an industry-wide basis, or by damage or delay which may arise through or by fire, explosion, lightening, earthquake, cyclone, unusual and unforeseen inclement weather over normal conditions for the time of the year that impedes Work at the site, riot, insurrection or war, or by the abandonment of the Work by strikes, boycotts or by lockouts engaged thereon through no fault of the Contractor (any of the foregoing, a “Force Majeure Event”), the Contractor shall not be held responsible or accountable for the delay and the Owner shall issue a Change Order as defined in Paragraph 7.2 of the General Conditions hereto) to this Contract extending the Substantial Completion Date by the number of days that the Substantial Completion Date has been delayed, and increasing the Guaranteed Maximum Price by such amount, if any, as the parties mutually agree, in writing, is the reasonable cost of the Work increased due to the delay, which shall include an increase in the Contractor’s Fee as set forth in Article 5 below, Contractor and Owner shall take any needed steps to actively mitigate the effects of any delay. Notwithstanding the above, if the increase of the Guaranteed Maximum Price agreed to by the parties would exceed ten percent (10%) of the original Guaranteed Maximum Price, Owner, in its sole and absolute discretion, shall have the option to terminate this Contract, subject to Paragraph 14.4 of the General Conditions and without any further liability upon delivery of ten (10) days’ written notice to Contractor.

4.5   Time is of the essence of this Agreement. It is specifically agreed that Contractor assumes the risk of nonperformance or late performance by its Subcontractors or any employees or agents of any of them and that no extension of the Scheduled Completion Date shall be granted Contractor for such reason. If Contractor, at any time, ascertains that for any reason its is unable to complete the Work by the Scheduled Completion Date, Contractor shall immediately notify Owner in writing of this fact. Unless Contractor is entitled to an extension under Article 4.4 of this Agreement and under Article 8 of the General Conditions. Owner shall have the option, without limitation, to require Contractor to work on an overtime basis to complete the Work by the Scheduled Completion Date without any increase in the Guaranteed Maximum Price as defined and specified below in Article 5 hereof.

, subject to adjustments of this Contract Time as provided in the Contract Documents.
(Insert provisions, if any, for liquidated damages relating to failure to complete on time, or for bonus payments for early completion of the Work.)

5.1       CONTRACT SUM

5.1.1   The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor’s performance of the Contract. The Contract Sum is the Cost of the Work as defined in Article 7 plus the Contractor’s Fee.

5.1.2   The Contractor’s Fee is for the Work performed under this Agreement shall be an aggregate amount equal to the sum of four percent (4%) of the Cost of the Work relating to the Work described in the Contract Documents (as identified in Contractor’s initial cost estimate, hereinafter “Contractor’s Proposal”). The aggregate amount comprising Contractor’s Fee shall be adjusted, upward or downward, based on the product obtained by multiplying the respective percentage set forth above to the final Cost of the Work in each of such categories, as approved by Owner. Contractor’s Fee shall be deemed to include all profit to be paid to Contractor, except, however, with respect to self-performed Work, profits shall be deemed included in the cost of such self-performed Work and no Contractor’s Fee shall apply thereto if such Work can be obtained through a competitive bid process at a lower Cost to Owner, but only to the extent of the excess cost of such self-performed Work over the lower cost competitor.

5.1.3   Notwithstanding anything to the contrary contained herein, to the extent this Agreement contemplates that Contractor will furnish and install material for the proper execution and completion of the Work, this Agreement is intended to be, and shall be construed and interpreted as if it constitutes, two (2) separate agreements, one for the retail sale of such materials upon delivery to the Reservation, and one for the installation of same into the Project. :

5.1.4   The General Condition Costs for changes shall be calculated at actual cost to administer the change without payment of Contractor’s Fee thereon.
(State a lump sum, percentage of Cost of the Work or other provision for determining the Contractor’s Fee, and describe the method of adjustment of the Contractor’s Fee for changes in the Work.)

5.2    GUARANTEED MAXIMUM PRICE

5.2.1   The sum of the Cost of the Work and the Contractor’s Fee is guaranteed by the Contractor not to exceed an aggregate amount (hereinafter, the “Guaranteed Maximum Price”) equal to Thirty-Seven Million One Hundred Fourteen Thousand Dollars- ($37,114,000), which shall constitute the sum of the anticipated Cost of the Work (including all Construction Services, Contractor’s Contingency (which shall not be available to cover the cost of Change Orders), the cost of any Allowance Work, as adjusted pursuant to Subparagraph 5.2.4 below, and Contractor’s Fee, all as set forth with particularity in Contractor’s Proposal attached hereto at Exhibit “5.2.1”, and subject to additions and deductions by Change Order as provided in the Contract Documents. Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement by the Owner.

.1   Subject to Subparagraph 5.2.6.4 hereof, when the Drawings and Specifications for the Project are sufficiently complete to address all value engineering items identified by Architect, Contractor and Owner, as set forth with particularity in Paragraph 5.2.4 below, and when all proposals with respect thereto from all Subcontractors, suppliers and/or Sub-subcontractors have been received, analyzed and accepted by Owner (as provided for herein), Contractor shall propose an amendment in such form as is acceptable to Owner to reflect changes in the scope of Work necessitated by the completion of such Drawings and Specifications.
(Insert specific provisions if the Contractor is to participate in any savings.)

5.2.2   The Guaranteed Maximum Price is based on the flowing alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owners: to be established in the Guaranteed Maximum Price attached hereto at Exhibit “5.2.1.”
(State the numbers or other identification of accepted alternates. If decisions on other alternates are to be made by the Owner subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when the amount expires.)

5.2.3   Unit prices, if any, are as follows: None

5.2.4   Allowances, if any, are as follows to be established in the Guaranteed Maximum Price and attached hereto at Exhibit “5.2.4”:
(Identify and state the amounts of any allowances, and state whether they include labor, materials, or both.)

.1   Contractor specifically acknowleges that the Guaranteed Maximum Price includes within the Work the cash allowance for certain items as identified by Contractor, Architect and Owner, working in concert, and listed in Contractors’ Proposal (“Allowance Work”), and that the valuations listed therein include applicable taxes, except to the extent specifically excluded under Paragraph 3.6 of the General Conditions or elsewhere under the Contract Documents, and costs of delivery to the site.

.2   Prior to the performance of the Work specified in each of the allowance items set forth in Contractor’s Proposal, Contractor shall, as soon as practicable, submit to the Owner with respect to each such allowance item and (i) a firm price for that portion of the Work to be performed directly by Contractor, such price to be computed on the basis of the Cost of the Work.

.3   The Cost of the Work for each item of Allowance Work upon completion of such item shall be compared with the amount of the allowance specified in Contractor’s Proposal for such item. If such cost is different than the allowance specified in Contractor’s Proposal, the Guaranteed Maximum Price will be adjusted upward or downward by the amount of such difference by Change Order. Costs for all Allowance Work shall be accounted for as a separate cost line item.

.4   Notwithstanding the foregoing provisions of this Subparagraph to the contrary, Owner shall have the right to deduct from the Contract Documents by Change Order any of the Work covered by any allowance or allowances itemized in Contractor’s Proposal. Upon such deduction, the Guaranteed Maximum Price will be reduced by the amount of the allowance or allowances which may be so deducted.

.5   Any adjustment in the Cost of Work resulting from the application of this Subparagaph 5.2.4, shall also result in an adjustment to the Contractor’s Fee in accordance with the terms of Subparagraph 5.1.2. hereof.

5.2.5   Assumptions, if any, on which the Guaranteed Maximum Price is based are as follows: to be established in the Guaranteed Maximum Price and attached hereto at Exhibit “5.2.5”, and which Contractor acknowledges to be all of the assumptions that Contractor needed to make concerning the Work.

5.2.6   To the extent that the Drawings and Specifications are anticipated to require further development by the Architect, the Contractor has provided in the Guaranteed Maximum Price for such further development consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order.

5.2.6.1   The Guaranteed Maximum Price shall be adjusted for Scope Changes (as defined