in Re Forum Studio, Inc. and Clayco, Inc.

FILED
15-0674
11/16/2015 2:17:39 PM
tex-7866695
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

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Real Party In Interest files this Appendix to their Response to Petition for

Writ of Mandamus . The Court is requested to consider the following attachments:

Exhibit 1: Affidavit of Greg C. Noschese ( R.P. Appx. 003-006)

Exhibit 2: Defendant's Original Answer (R.P. Appx. 007-009)
Exhibit 3: Defendant's Counterclaim Against Clayco, Inc. (R.P. Appx.
010-191)

Exhibit 4: Respondents' Objections, Reservation of Rights and, Subject to
and Without Waiver of the Same, Their Answering Statement
(R.P. Appx. 192-199)

Exhibit 5: Order Partially Granting and Partially Denying Respondents'
Motion to Dismiss on Statutes of Limitations (R.P. Appx. 200-
204)

Exhibit 6: Plaintiffs' Original Petition (R.P. Appx. 205-303)

1

R.P. Appx. 001
 Exhibit 7: Order on Plaintiffs' Application to Stay Arbitration (R.P. Appx.
304)

Exhibit 8: Order Denying Plaintiffs' Application for Temporary
Restraining Order (R.P. Appx. 305)

Exhibit 9: Defendant Intellicenter Dallas Investment LLP's Motion to
Compel Arbitration (R.P. Appx. 306-311)

Exhibit 10: Defendant Intellicenter Dallas Investments LLP's Response to
Plaintiff's Application to Stay Arbitration (R.P. Appx. 312-410)

Exhibit 11: Texas Board of Architectural Examiners Public Information
results regarding Hans Hecker (R.P. Appx. 411)

Exhibit 12: Texas Board of Architectural Examiners Public Information
results regarding Clayco, Inc. (R.P. Appx. 412-413)

2

R.P. Appx. 002
 No. I S-0674
In the
Supreme Court of Texas

§ Origi.nal Proceeding
§
In re Forum Studio, I nc. §
and Clayco, Inc., § From tbe 1601h District Cour t
Relators. §
§
§ Of Dallas County, Texas

Affidavit of Greg C. Noscbese

STATEOFTEXAS §
§
COUNTY OF DALLAS §

BEFORE ME, the undersigned Notary Public, on this day appeared Greg C.

Noschese, who is personally known by me, and after first being duly sworn

according to law upon his oath, deposed and said:

1. "My nan1e is Greg C. Noschese. I am over eighteen years of age, am

of sound mind and am competent to make this affidavit. The facts stated herein are

within my personal knowledge and are all true and correct.

2. 1 am an attorney licensed to practice Jaw in the State of Texas. I am

an attorney of record for Intellicenter Dallas Investments LLP, the Real Party in

Interest in this proceeding and in the underlying proceeding before Respondent.

Affidavit of Greg C. Noschese
R.P. Appx. 003
 3. The following documents, which are being presented as Exhibits to

the Court in the Appendix to the Response to Petition for Writ of Mandamus, are

true and correct copies of the original documents filed in the underlying trial court

and arbitration proceedings:

Exhibit 2- Defendant's Original Answer (Cause No. DC-15-020 18);

Exhibit 3 -Defendant's CountercJaim Against Clayco, Inc. (Cause No.
DC-15-020 18);

Exhibit 4 - Respondents' Objections, Reservation of Rights and,
Subject to and Without Waiver of the Same, Their Answering
Statement (AAA Case No. 01- 14-0001-0249);

Exhibit 5 - Order Partially Granting and Partially Denying
Respondents' Motion to Dismiss on Statutes of Limitations (AAA
Case No. 01-14-0001-0249);

Exhibit 6 - Plaintiffs' Original Petition (Cause No. DC-15-02018);

Exhibit 7 - Order on Plaintiffs' Application to Stay Arbitration (Cause
No. DC-15-02018);

Exhibit 8 - Order Denying Plaintiffs' Application for Temporary
Restraining Order (Cause No. DC-15-020 18);

Exhibit 9 - Defendant Intellicenter Dallas Investment LLP's Motion to
Compel Arbitration (Cause No. DC-15-02018); and

Exhibit 10 - Defendant Intellicenter Dallas Investments LLP's
Response to Plaintiffs Application to Stay Arbitration (Cause No.
DC-15-020 18).

4. The following docwnents, which are being presented as Exhibits to

the Court in the Appendix to the Response to Petition for Writ of Mandamus, are

Affidavit of Greg C. Noschese 2
R.P. Appx. 004
true and correct print-outs of the information via the Internet obtained from the

official website of the Texas Board of Architectural Examiners:

Exhibit II - Texas Board of Architectural Examjners Public
Information License Search Results regarding Hans Hecker; and

Exhibit 12 - Texas Board of Architectural Examiners Public
Information License Search Results regarding Clayco, Inc.

Further affiant sayeth not."

Affidavit of Greg C. Noschese 3
R.P. Appx. 005
 -
SUBSCRIBED AND SWORN TO BEFORE ME, on this the 16ih day of
November 2015.

~C1~LD (~J{ib=l_
Sharon D. Blackstock
Notary Public in and for the
State of Texas
My Commission Expires:

01-21-19

SHAROND. BlACKSTOCK
My Commfeilon Expjtue
• January 21, 2018

Affidavil of Greg C. Noschese 4
R.P. Appx.
6672351v.1 006
5554/38
 FILED
DALLAS COUNTY
3/2/2015 4:05:16 PM
FELICIA PITRE
DISTRICT CLERK

Candace Tyler

DC-15-02018

FORUM STUDIO, INC. and § IN THE DISTRICT COURT
CLAYCO, INC., §
§
Plaintiffs, §
§
v. § OF DALLAS COUNTY, TEXAS
§
INTELLICENTER DALLAS §
INVESTMENTS LLP, §
§
Defendants. § 160TH JUDICIAL DISTRICT

DEFENDANT’S ORIGINAL ANSWER

Intellicenter Dallas Investments LP (the “Defendant” or “Intellicenter”) files its answer to

Clacyo’s and Forum Studios’ Original Petition as follows:

I.

General Denial

1. Intellicenter denies generally each and every, all and singular, the material

allegations contained in Plaintiffs’ Original Petition for Declaratory Relief and demand strict proof

thereof by a preponderance of the evidence.

Rule 54 Denial of Condition Precedent

2. Intellicenter hereby denies that Defendants have satisfied all conditions

precedent entitling them to the relief sought by their petition.

II.

Affirmative Defenses

3. All or part of Plaintiffs’ claims are barred by waiver.

4. All or part of Plaintiffs’ claims are barred by estoppel.

5. All or part of Plaintiffs’ claims are barred by Texas Civil Practice and Remedies

Code Section 16.069.

6. All or part of Plaintiffs’ claims are barred by first material breach.

DEFENANT’S ORIGINAL ANSWER - Page 1

5990124v.1 5554/38

R.P. Appx. 007
 7. All or part of Plaintiffs’ claims are barred by fraud.

8. All or part of Plaintiffs’ claims are barred by illegality.

9. All or part of Plaintiffs’ claims are barred by misrepresentation.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully request that upon

trial or hearing of this matter, Plaintiffs take nothing by way of their causes of action, that

Defendant go hence with their costs, attorney’s fees and all other relief to which they may show

themselves justly entitled.

Respectfully submitted,

MUNSCH HARDT KOPF & HARR, P.C.

/s/ Greg C. Noschese _________________
Greg C. Noschese, SB No. 00797164
500 North Akard Street, Suite 3800
Dallas, Texas 75201-6659
(214)855-7500 (Telephone)
(214)855-7584 (Facsimile)
Email: gnoschese@munsch.com

ATTORNEYS FOR DEFENDANT

DEFENANT’S ORIGINAL ANSWER - Page 2

5990124v.1 5554/38

R.P. Appx. 008
 CERTIFICATE OF SERVICE

I hereby certify that on this the 2nd day of March, 2015, a true and correct copy of the
foregoing instrument was served on the following by Eserve:

Kenneth B. Chaiken
CHAIKEN & CHAIKEN, PC
5801 Tennyson Pkwy, Suite 440
Plano, TX 75024
(214)265-0250
(214)265-1537 (fax)
Email: kchaiken@chaikenlaw.com

R. Thomas Avery
BLITZ, BARDGETT & DEUTSCH, LC
120 South Central Avenue, Suite 1650
St. Louis, Missouri 63105
(314)863-1500
(314)863-1877 (Fax)
Email: rtavery@bbdle.com

/s/ Greg C. Noschese _________________
Greg C. Noschese

DEFENANT’S ORIGINAL ANSWER - Page 3

5990124v.1 5554/38

R.P. Appx. 009
 FILED
DALLAS COUNTY
3/2/2015 4:05:16 PM
FELICIA PITRE
DISTRICT CLERK
Candace Tyler

DC-15-02018

FORUM STUDIO, INC. and § IN THE DISTRICT COURT
CLAYCO, INC., §
§
Plaintiffs, §
§
v. § OF DALLAS COUNTY, TEXAS
§
INTELLICENTER DALLAS §
INVESTMENTS LLP, §
§
Defendants. § 160TH JUDICIAL DISTRICT

DEFENDANT’S COUNTERCLAIM AGAINST CLAYCO, INC.

Intellicenter Dallas Investments LP (the “Defendant” or “Intellicenter”) files its

Counterclaim against Clacyo, Inc. as follows:

I.

Counterclaim Against Clayco

1. On or about May 19, 2006, Intellicenter Dallas Investments, LP contracted with

Clayco, Inc. ("Clayco") under a Design Build contract ("Design Build Contract") for the design

and construction of a 4 story speculative office building consisting of approximately 211,637

square feet located at 3701 Regent Boulevard, Irving Texas ("Project"). A true and correct copy

of the Design Build Contract is attached here to as Exhibit “A”.

2. Among other things, the Design Build Contract provided that the Clayco shall be

responsible to Intellicenter for acts and omissions of the Clayco’s employees, subcontractors

and their agents and employees, and other persons, including the project architect, engineers

and other design professionals, performing any portion of Clayco's obligations with respect to

the design of the Project. Clayco was also required to cause all architects, engineers and other

design professionals performing design work for the Project to maintain Professional Liability

Insurance having minimum limits of One Million Dollars ($1,000,000) per claim and in the

aggregate (including excess coverage) (claims made basis). Such Professional Liability

R.P. Appx. 010
Insurance policies were required to (i) provide coverage for claims arising out of any act,

error, or omission with respect to the rendering of or failure to render design,

engineering, professional or architectural services by architects, engineers or other Design

Professionals (and their respective officers, directors, employees or agents) who may be

employed, engaged or otherwise utilized by Contractor to perform Contractor’s design,

engineering, architectural and professional duties, obligations and responsibilities under the

Contract Documents, (ii) include Owner, and its partners members, officers, directors,

employees, agents, successors and assigns as “additional insureds”, (iii) be written on an

occurrence basis and not on a claims-made basis, (iv) waive any rights of subrogation

against Owner and its partners, members, officers, directors, employees, agents, successors

and assigns, and (v) be written by an insurance company or compliance with a current A.M.

Best Company rating of A-/IX or better and be admitted to do business in the state where the

Land is located. Contract General Conditions 11.1.4 (emphasis added). Clayco was also

required to obtain a commercial general liability policy on a similar basis naming Owner as an

additional insured and providing coverage on an occurrence basis. Contract 15.1.7.

3. The Design Build Contract Documents included a specification manual which

required the elevated floor slabs to be designed for a 100lb live load with Code allowance

reductions. Clayco allegedly completed construction on March 6, 2007 as indicated in the

architect's certification under the Certificate of Substantial Completion. Throughout the course

of the Project, Clayco and its subcontractors, including, without limitation, the design

professionals repeatedly represented to Intellicenter that the Project was being built in

accordance with the Design Build Contract specifications. Intellicenter relied upon these

representations in authorizing payments.

4. In September 2007, six months after Substantial Completion, the architect,

Forum Studio Inc. ("FS")., represented to Intellicenter that the Project was built in accordance

R.P. Appx. 011
with the plans and specifications. A true and correct copy of the architect’s certificate is

attached hereto as Exhibit “B” (“Architect’s Certificate”). The Architect’s Certificate specifically

provided, “[w]e understand that you and the Venture are relying on this letter and that you or the

Venture may pursue a claim against us in the event that you or the Venture has any loss or

damage as a result of the facts and circumstance that exist at the Project which make any of our

certifications incorrect or inaccurate.” The unsealed Architect’s Certificate was signed by Hans

Hecker even though Mr. Hecker is not licensed in Texas as an Architect and the Architect’s

Certificate provided what it described as “professional opinions” regarding a Texas project. Mr.

Hecker also identified himself as a “principal” which under the Texas Occupations Code means

he is a Texas architect even though there does not appear to be any record that Mr. Hecker is a

registered Texas architect. The Architect’s Certificate also purports to offer opinions on the

structural aspects of the Project, which Intellicenter now knows were untrue or inaccurate.

5. In late 2013, as Intellicenter was preparing the building for sale, a broker noted

some cracking in the exterior tilt panels. After evaluating the cracks, the design, and the

building, Intellicenter learned that the cracks, some of which appeared to have been

intentionally concealed by repair at the time of initial construction, were the result of inadequate

structural design in portions of the perimeter concrete wall panels and a portion of the steel

beam to wall panel connections in such a way that some, if not all, failed to meet applicable

building code based upon contract specified live load on design drawings. The Architect’s

Certificate had not disclosed that inadequate structural design in portions of the perimeter

concrete wall panels and a portion of the steel beam to wall panel connections in such a way

that some, if not all, failed to meet applicable building code based upon contract specified live

load on design drawings.

6. Upon its first discovery of the cracks, Intellicenter wrote Clayco and requested

that Clayco correct the damage resulting from the deficient design and/or construction and even

R.P. Appx. 012
requested contractually required insurance information for occurrence based insurance policies.

A true and correct copy of the September 16, 2013 letter Intellicenter sent Clayco is attached

hereto as Exhibit “C”. At Clayco’s request, Intellicenter even met with Clayco in person, allowed

an inspection, provided data, evaluated information provided by Clayco, though it appeared

incomplete and Intellicenter requested even more information. Despite information establishing

Clayco’s failure to deliver a Project that could support the specified live loads, Clayco refused to

take any action to assist with the diagnosis and/or repair of the Project. Clayco also failed to

provide Intellicenter with the insurance information required to be furnished under the Contract.

Despite the request to repair the deficiency and/or provide insurance information, Clayco has

refused to correct the design and construction deficiencies and/or provide the requested

insurance information. Because of Clayco's refusal to repair the Project, Intellicenter has

sought bids and contracted for the Project to be repaired to correct the defects. Before

undertaking the repairs necessitated by Clayco’s acts and/or omissions, Intellicenter had not

made any repairs to the outside of the Project.

7. On September 5, 2014, Intellicenter initiated a demand for arbitration in

accordance with the American Arbitration Association Construction Industry Rules. The parties

abated the arbitration to allow Clayco and its design professionals to inspect the property.

During the agreed inspection, additional cracks were discovered requiring even more repairs.

Clayco continues and refuses to repair the Project despite never disputing the need for the

repairs. On February 20, 2015, Plaintiffs commenced this case, and are now asking this court

to provide affirmative relief under the Declaratory Judgment Act and also seeking attorney’s

fees.

8. As a result of Clayco’s acts and or omissions detailed above, Intellicenter has

suffered actual damages, including, without limitation, repair costs, expert and testing costs,

diminution in value and other damages as provided by law.

R.P. Appx. 013
Breach of Contract

9. By the acts and/or omissions described above, Clayco breached the Design

Build Contract and has caused Intellicenter damages in the maximum amount of $3.5 million

dollars exclusive of attorney’s fees.

Negligent Misrepresentation

10. By the acts and/or omissions described above, Clayco and/or its agents,

subcontractors or design professionals it is responsible for under the Design Build Contract

supplied false information to Intellicenter for the guidance in its business. Such false

information included, without limitation, misstatements of fact, misstatements of opinion and

misrepresentation by non-disclosure. Neither Clayco nor and/or its agents, subcontractors or

design professionals it is responsible for under the Design Build Contract exercised reasonable

care in obtaining or communicating the information. Intellicenter justifiably relied upon the

information provided and has now suffered pecuniary losses as a proximate result of the

negligent misrepresentations for which it now seeks recovery.

Fraud

11. Through the acts and/or omissions detailed above, Clayco made false

representations of fact with the intent that Intellicenter rely upon them by either affirmatively

misrepresenting facts and or failing to disclose facts when it or its agents, subcontractors or

design professionals it is responsible for under the Design Build Contract had a duty to disclose

Intellicenter justifiably relied upon said false representations of fact to its detriment because the

false representations related to specialized and technical matters and knowledge that were

known only to Clayco and its agents, subcontractors or design professionals it is responsible for

under the Design Build Contract. Clayco’s false representations and/or the false

representations it is responsible for and/or Clayco’s nondisclosure and or the nondisclosure it is

responsible for caused actual damages and/or injuries to Intellicenter for which Intellicenter now

R.P. Appx. 014
seeks recovery.

Exemplary Damages

12. As a result of Clayco’s fraud and or the fraud it is responsible for, Intellicenter

hereby seeks exemplary damages as provided by law.

Texas Civil Practice & Remedies Code Section 16.069

13. While Intellicenter disputes that limitations has run on any of its claims, to the

extent Clayco, or any other party claims limitations has run, Intellicenter affirmatively pleads the

operation and effect of Section 16.069, in addition to any other tolling provision supported by the

above plead facts.

WHEREFORE, PREMISES CONSIDERED, Respondent respectfully request that upon

trial or hearing of this matter, Plaintiffs take nothing by way of their causes of action, that

Intellicenter have and recover judgment on its counterclaim against Clayco including actual

damages including without limitation, repair costs, expert and testing costs, and/or diminution in

value, and exemplary damages. Additionally, Intellicenter requests that upon judgment it go

hence with its costs, attorney’s fees and all other relief to which it may show herself justly

entitled.

Respectfully submitted,

MUNSCH HARDT KOPF & HARR, P.C.

/s/ Greg C. Noschese _________________
Greg C. Noschese, SB No. 00797164
500 North Akard Street, Suite 3800
Dallas, Texas 75201-6659
(214)855-7500 (Telephone)
(214)855-7584 (Facsimile)
Email: gnoschese@munsch.com

ATTORNEYS FOR DEFENDANT

R.P. Appx. 015
 CERTIFICATE OF SERVICE

I hereby certify that on this the 2nd day of March, 2015, a true and correct copy of the
foregoing instrument was served on the following by Eserve:

Kenneth B. Chaiken
CHAIKEN & CHAIKEN, PC
5801 Tennyson Pkwy, Suite 440
Plano, TX 75024
(214)265-0250
(214)265-1537 (fax)
Email: kchaiken@chaikenlaw.com

R. Thomas Avery
BLITZ, BARDGETT & DEUTSCH, LC
120 South Central Avenue, Suite 1650
St. Louis, Missouri 63105
(314)863-1500
(314)863-1877 (Fax)
Email: rtavery@bbdle.com

/s/ Greg C. Noschese _________________
Greg C. Noschese

R.P. Appx. 016
 AlA Document A11 f" - 1997
Standard Form of Agreement Between Owner and Contractor
where the basis for payment is the COST OF THE WORK PLUS A FEE with a negotiated
Guaranteed Maximum Price

AGREEMENT made as of the nineteenth day of May in the year two thousand six
(In words, indicate day, month and year)

BETWEEN the Owner:
(Name, address and other information) This document has important
legal consequences.
Consultation with an attorney
is encouraged with respect to
its completion or modification.
Intellicenter Dallas Investments. LLP This document is not intended for
8115 Preston Rd., Suite #700 use in competitive bidding.
Dallas. TX 75225 AlA Document A201-1997,
and the Contractor: General Conditions of the
(Name, address and other information) Contract for Construction, is
adopted in this document by
reference. Do not use with other
general conditions unless this
document is modified.
Clayco Inc.
This document has been
2199 Innerbelt Business Center Drive
approved and endorsed by the
St. Louis Missouri 63114
Associated General Contractors
of America.
The Project is:
(Name and location)

The design and construction of a 4-story speculative office building consisting of
aPProximately 211.637 gross square feet located at 3701 Regent Blvd.. Irving Texas.

The Architect is:
(Name, address and other information)
FS Architecture PC
c/o Forum Studios. Inc.
2199 Innerbelt Business Center Drive
St. Louis. Missouri 63114

Structural. mechanical electrical and civil engineering services and the consulting services
of other Design Professionals for the Project will be provided contractually through the
Architect except as follows: Topographic and boundarv survey to be provided by Owner.

The Owner and Contractor agree as follows.

AlA Document A1111N -1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects.
All rights reserved. WARNING: This AlA"' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or 1
distribution of this AlA"' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was produced by AlA software at 15:11:31 on 05/19/2006 under Order No.10001B2995_1 which expires on
7/23/2006, and is not for resale.
User Notes: Clayco A111 - Koll- lntellicenter- Dallas v3 (5·19-06) (2347931739)

R.P. Appx. 017
 ARTICLE 1 THE CONTRACT DOCUMENTS
The Contract Documents consist of this specifically modified Agreement, the specifically modified AlA Document
A201-1997, General Conditions af the Caatraet (Geaeral, Sl:lflJlle'fR@Rta~ aaa ather Ceaaitieas), ("A201")
Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this
Agreement and Modifications issued after execution of this Agreement; these form the Caatraet, "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.

ARTICLE 2 THE WORK OF THIS CONTRACT
The Contractor shall fully execute the Work described in the Contract Documents, except to the extent specifically
indicated in the Contract Documents to be the responsibility of others.

ARTICLE 3 RELATIONSHIP OF THE PARTIES
The Contractor accepts the relationship of trust and confidence established by this Agreement and covenants with
the Owner to cooperate with the Architect and exercise the Contractor's skill 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 an expeditious and economical manner consistent with the
Owner's interests. The Owner agrees 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.
The Contractor will enter into a direct contractual relationship with the Architect. engineers, design/build
subcontractors and other design professionals (collectively the ''Design Professionals") to provide the design of the
Project The Owner acknowledges and agrees that the Contractor is not a licensed architect or engineer and is not
agreeing to perform services which require such a license in the State in which the Project is located. Such services
will be performed by licensed architects engineers and design/build subcontractors under separate agreements. The
fees and. expenses of all such design professionals shall be included as part of the Cost of the Work. The Contractor
shall cause the Architect to prepare and submit, as part of the Cost of the Work. the Construction Documents
necessary for the construction of the Project. The contractual obligations of such the Architect engineers and other
design persons or entities are undertaken and performed in the interests of the Contractor. The agreements between
the Contractor and the Architect engineers and other design professionals· shall be in writing and these
arrangements. including financial arrangements with respect to the Project. shall be promptly and fully disclosed to
the Owner upon request. The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's
employees. subcontractors and their agents and employees. and other persons, including the Architect engineers and
other Design Professionals, performing any portion of the Contractor's obligations under this Article 3 with respect
to the design of the Project. The "Construction Documents" may include drawings. specifications. and other
documents and electronic data setting forth the requirements for construction of the Work. and shall (i) be consistent
with the intent of the Project as a whole (ii) provide information for the use of those in the building trades; and (iii)
include documents customarily required for regulatory agency approvals. The fees and expenses of all such Design
Professionals shall be included as part of the Contract Sum.

ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
§ 4.1 The date of commencement 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.)

February 21.2006.

If, prior to commencement of the Work, the Owner requires time to file mortgages, mechanic's liens and other
security interests, the Owner's time requirement shall be as follows;

AlA Document A111TM -1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects.
All rights reserved. WARNING: This AlA" Document is protected by U.S. Copyright law and International Treaties. Unauthorized reproduction or 2
distribution of this AlA" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was produced by AlA software at15:11 :31 on 05/19/2006 under Order No.1000182995_1 which expires on
7/23/2006, and is not for resale.
User Notes: Clayco A111 - Koll - lntellicenter- Dallas v3 (5-19-06) (2347931739)

R.P. Appx. 018
 § 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 aays frem December 26,
2006 subject to extensions for any delays contemplated in Paragraph 4.1 of this Agreement or Paragraph 8.3.1 of
the form the General Conditions (AlA Document No. A201) attached hereto. such completion date ef
eemmsaesment, er being referred to herein as fellew!r.the "Substantial Completion Date."
(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.)

I PeFtien ef Wel=k SubstaRtial Cempletien date

, 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 WeFk:iWork. )The initial construction schedule (the "Project Schedule" J for the Project is
attached hereto as Exhibit "A

ARTICLE 5 BASIS FOR PAYMENT
§ 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:
(State a lump swn, 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.)

The "Contractor's Fee" shall be four percent (4%) of the Cost of the Work subject to an increase in the fee of four
percent (4%) on all Change Orders. as defined in Paragraph 6.3 herein below. increasing the Cost of the Work, and
subject to a decrease in the fee of four percent (4%) on all Change Orders decreasing the Cost of the Work.

§ 5.2 GUARANTEED MAXIMUM PRICE
§ 51.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed by the Contractor not to exceed
~Fourteen Million Three Hundred Fifty-Three Thousand Nine Hundred Seventy-Three and 001100 Dollars
($14.353.973.00). 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 (as the same may
be adjusted from time to time by Change Order or otherwise the "Guaranteed Maximum Pfi€e;..Price"). Costs which
would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement
by the Owner If. upon Final Completion the GMP exceeds Cost of the Work plus the Contractor's Fee then the
amount of such excess shall be referred to herein as the "savings": and the savings shall be shared by the Owner and
the Contractor as follows: sixty percent (60%) of the savings shall be retained by the Owner; and fortv percent
(40%) of the savings shall be paid to the Contractor as a fee in addition to the Gwaer.Contractor' s Fee described in
Paragraph 5.1.2 above.
(Insert specific provisions if the Contractor is to participate in any savings.)

AlA Document A111TM -1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of ArcMects.
All rights reserved. WARNING: This AlA" Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or 3
distribution of this AlA"' Document, or any portion of it, may result in severe civH and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was produced by AlA software at 15:11:31 on 0511912006 under Order No.1000182995_1 which expires on
712312006, and is not for resale.
User Notes: Clayco A111 - Koll • lntellicenter- Dallas v3 (5-19-06) (2347931739)

R.P. Appx. 019
 § 5.2.2 The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the
Contract Documents and are hereby accepted by the Owner:
(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.)

See Outline Soecification & Drawings (the "Outline Specs") attached to this Contract as Exhibit "B" (consisting of
pages).

§ 5.2.3 Unit prices, if any, are as follows:

DeseriptiaR Prise($ 0.00)

See Outline Specs.

§ 5.2.4 Allowances, if any, are as follows
(Identify and state the amounts of any allowances, and state whether they include labor, materials, or both.)

.O.maunt ($ 0.00) IRslulfed items

See Outline Specs. If the Contract Documents provide for any allowances then the parties agree that Ci) the GMP
shall be reduced by the amount if any. by which the allowance exceeds the actual cost of the item for which such
allowance was made. and (ii) the GMP shall be increased by the amount, if any. by which the actual cost of the item
for which such allowance was made exceeds the allowance.

§ 5.2.5 Assumptions, if any, on which the Guaranteed Maximum Price is based are as follows:

Contractor's general conditions as set forth in the Division 1 costs shall not exceed 125% of the amount set forth on
the Clayco Control Budget attached as Exhibit "C'.

See Outline Specs.

§ 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.

ARTIClE 6 CHANGES IN THE WORK
§ 6.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work may-:shall be determined by
aHJ sf fue metheas listed in Seetiea 7.:U sf AlA Deelimeat A291 1997.accordance with Paragraph 6.5 below.

saeeeat~=aets (eKeept these awarded with the Owaer' s ~fier eeaseat sa the
§..!,_§ 6.2 Ia ealallatffig adj\lstmeats te
aasis sf east plas a fee), the terms "east" aaEl "fee" as ased ia Seetiea 7.3.3.3 sf AlA Deeameat A291 1997 arul the
terms "eests" aad "a reaseaable alle·;vaaee fur everheaa aBd flFS:fit" as l!seel iR Seeeea 7.3.a sf All Deeameat
A291 1997 shall have the meaaiags assigaee te tRBm iR '\Ii• Deeumeat A2Q1 1997 aaa shall RSt ae meeifiea ay
Artieles 3, 7 ana8 sf this Agreemeat. Aejastmeets te sabseatrasts a•;'iffileEl with the Ovmer's ~rier seaseat ea the
basis ef eest plas a fee shall be ealealatea ie aeseraaase 'Nith the terms ef these subseatraets.

~In calculating adjustments to the Guaranteed Maximum Priee,Price or the impact of any Change Order
the terms "cost" and "costs" as used in the above-referenced provisions of AlA Document A20I-1997 shall mean the
Cost of the Work as defined in Article 7 of this Agreement and the terms "fee" and "a reasonable allowance for
overhead and profit" shall mean the percentage for the Contractor's Fee as ElefiReEl-indicated in Section 5.1.2 of this
Agreement.

AlA Document A111TII-1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Jnslitute of Architects.
All rights reserved. WARNING: This AlA'" Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or 4
distribution of this AlA" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was produced by AlA software at 15:11:31 on 05/19/2006 under Order No.1000182995_1 which expires on
7/23/2006, and is not for resale.
User Notes: Clayco A111 . KoR- lntellicenter- Dallas v3 (5-19-06) (2347931739)

R.P. Appx. 020
 § 6.4 If aa Sfleeifie fJrevisiaa is made ia Seetiaa 3.1 fer aajastmeat ef the CaRtraeter's l'ee ia the ease af ehaages ia
the V 'ark, ar if the ~eeHmeats; the east sf aefeaaillg suits sF elaiFHs fer iflfriagemeat sf flalea~ rights arisiag frsFH sHell reEIUi£emes ~ ef
the Ceatraet I>eeaFll:eHts; asa fl~'HieHts Fll:aae ia aeeeramee with legal jHagFHeHts agaiast the CeHtFaeteF Fi!SHltiHg
frem sueh suits sF elaifll:s aaa p~·mems sf settlefll:eats FHaae "'ita the Owaer's eeaseat lie· ·e"er, sueh eests sf legal
aefeases, juagmeats aaa settlefll:8Bts shall aet be iaeluaea ia the ealeHlatiea sf the CeatraeteF' s Fee Sf sllbjeet te the
Gliaranteea Maxifll:Hm Prise. If sHell reyalties, fees aaa eests are exeluaea by the last seRteaee sf Seetiea 3.17.1 ef
i\L\ I>eeameat A2Ql 199+ er ether flFSYisieas ef the Ceatraet I>eeHFHeats, thea they shall B:et be iRelaaea ia the
Cast ef the Wefk:
§ 7.6.5 Royalties and license fees paid for the use of a particular design, process or product required by the Contract
Documents if such royalty and license fees are disclosed to Owner prior to Contractor commencing construction of
the Project and Owner approves same in writing.

§ 7.6.6 Data processing costs related to the Work.
AlA Document A111Tll-1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The Amertcan Institute of Architects.
All rights reserved. WARNING: This AlA" Document is protected by U.S. Copyright law and International Treaties. Unauthorized reproduction or 6
distribution ot this AlA"' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum
eKtent possible under the law. This document was produced by AlA software at15:11:31 on 05/19/2006 under Order No.1000182995_1 which expires on
7/23/2006, and is not tor resale.
User Notes: Clayco A111 • Koll- lntemcenter- Dallas v3 (5-19-06) (2347931739)

R.P. Appx. 022
 § 7.6. 7 Deposits lost for causes other than the Contractor's negligence or failure to fulfill a specific responsibility to
the Owner as set forth in the Contract Documents.

§ 7.6.8 Legal, mediation and arbitration costs, including attorneys' fees, other than those arising from disputes
between the Owner and Contractor, reasonably incurred by the Contractor in the performance of the Work and with
the Owner's prior written approval; which approval shall not be unreasonably withheld.

§ 7.6.9 Expenses incurred in accordance with the Contractor's standard personnel policy for relocation and
temporary living allowances of personnel required for the Worlc, if approved by the Owner.

§ 7.6.1 0 Payments by the Contractor into reserves established under the CCIP for the Project for providing
Subcontractor insurance. The Contractor represents that the amount of such reserve payments shall not exceed the
insurance premiums that reasonably would be incurred for the Project in the absence of the CCIP.

§ 7.6.11 Other direct reasonable expenses incurred by the Contractor in connection with the Project to the extent not
described in this Section 7.6.

§ 7.6.12 Design service fees payable to the Architect and any other design professionals engaged by Architect or the
Contractor to Provide the design for the Project.

§ U OTHER COSTS AND EMERGENCIES
§ 7.7.1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by
the Owner.

§ 7.7.2 Costs due to emergencies incurred in taking action to prevent threatened damage, injury or loss in case of an
emergency affecting the safety of persons and property, as provided in Section 10.6 of AIADocumentA201-1997.

§ 7. 7.3 Costs of repairing or correcting damaged er aeaeenfefflliag Work executed by the Contractor, Subcontractors
or suppliers, provided that such damaged er aeaeeaferraiag Work was not caused by aegligeBee NEGLIGENCE,
intentional misconduct or failure to fulfill a specific responsibility of the Contractor and only to the extent that the
cost of repair er eerrestiea is not reeeverallle recovered by the Contractor from in~urance, sureties, Subcontractors
or suppliers.

ARTICLE 8 COSTS NOT TO BE REIMBURSED
§ 8.1 The Cost of the Work shall not include:

§ 8.1.1 Salaries and other compensation of the Contractor's personnel stationed at the Contractor's principal office or
offices other than the site office, except as specifically provided in Sections 7 .2.2 and 7 .2.3 or as may be provided in
Article 14.

§ 8.1.2 BJ'fleases Except to the extent provided in Article 7 exoenses of the Contractor's principal office and offices
other than the site office.

§ 8.1.3 Overhead and general expenses, except as may be expressly included in Article 7.

§ 8.1.4 The Contractor's capital expenses, including interest on the Contractor's capital employed for the Work.

§ 8.1.5 Rental costs of machinery and equipment, except as specifically provided in Section 7.5.2.

§ 8.1.6 Except as provided in Section 7. 7.3 of this Agreement, costs due to the negligence or failure to fulfill a
specific responsibility of the Contractor, Subcontractors and suppliers or anyone directly or indirectly employed by
any of them or for whose acts any of them may be liable.

§ 8.1. 7 Any cost not specifically and expressly described in Article 7.

AlA Document A1111N -1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects.
All rights reserved. WARNING: This AlA" Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or 7
distribution of this AlA" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was produced by AlA software at 15:11:31 on 05/19/2006 under Order No.1000182995_1 which expires on
7/23/2006, and is not for resale.
User Notes: Clayco A 111 · Koll • lntellicenter- Dallas v3 (5·19-06) (2347931739)

R.P. Appx. 023
 § 8.1.8 Costs, other than costs included in Change Orders approved by the Owner, that would cause the Guaranteed
Maximum Price to be exceeded.

§ 8.1.9 The release or waiver or bonding. of any liens or claims which may be claimed. threatened or recorded so
long as Owner paid Contractor all undisputed amounts under this Contract.

Costs recovered by Contractor through insurance or otherwise.

ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS
§ 9.1 Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if ( 1) before making
the payment, the Contractor included them in an Application for Payment and received payment therefor from the
Owner, or (2) the Owner has deposited funds with the Contractor with which to make payments; otherwise, cash
discounts shall accrue to the Contractor. Trade discounts, rebates, refunds and amounts received from sales of
surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they
can be secured.

§ 9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 9.1 shall be credited to the
Owner as a deduction from the Cost of the Work.

ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS
§ 10.1 The Owner hereby agrees that portions of the Work may be subcontracted to the Contractor or any division of
the Contractor if agreed to in writing in advance by Owner. Those portions of the Work that the Contractor does not
e~:~stsmafifj perform with the Contractor's own personnel (or which are not subcontracted to the Contractor or a
division thereof as aforesaid) shall be performed under subcontracts or by other appropriate agreements with the
Contractor. The Owner may designate specific persons or entities from whom the Contractor shall obtain bids. The
Contractor shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially
for the Work and shall deliver such bids to the Arehi:teet. Owner. The Owner shall then determine, with the advice of
the Csfttfaetsr and the .'\rehiteet, Contractor. which bids will be accepted. The Contractor shall not be required to
contract with anyone to whom the Contractor has reasonable objection. For each portion of the Work having an
estimated cost in excess of $50,000. Contractor shall endeavor in good faith. using significant efforts. to obtain, and
provide to Owner uoon reauest. bids for said portion of the Work from at least 3 qualified subcontractors. If
Contractor cannot obtain bids from 3 qualified bidders. Contractor shall inform Owner of this before entering into
the relevant Subcontract Contractor shall not subcontract performance of all or any portion of the Project under the
Contract Documents pursuant to any subcontract in excess of $50.000 without first notifying Owner of the intended
subcontracting and obtaining Owner's acceptance in writing of the subcontracting and the subcontractor. which
acceptance or rejection shall be promptly given. If requested by Owner. Contractor shall furnish Owner a copy of
the prooosed subcontract for Owner's review of the terms and conditions thereof and shall not execute such
subcontract until Owner has accepted such terms. Failure of Contractor to comply with this Section may be deemed
to be a material breach of the Contract Documents. Contractor shall not remove any of the following major
subcontractors and replace any of such major subcontractors with any other subcontractor without Owner's prior
written approval. which shall not be unreasonably withheld or delayed. provided the prooosed replacement
subcontractor has the experience, financial backing and historv of quality construction for projects of the nature and
timing of the Project The major subcontractors that can onlv be rerlaced in accordance with the t(\regoing
procedures are as follows: anv CSl Division 15 or 16 subcontractor aud any subcontractor pe1forrning roofing or
exterior glass or glazing work. Contractor shall not be relieved of obligations under the Contract Documents by
virtue of Owner's approval of any subcontractors.

§ 10.2 If a specific bidder among those whose bids are delivered by the Contractor to the .'\relriteet Owner ( 1) is
recommended to the Owner by the Contractor; (2) is qualified to perform that portion of the Work; and (3) has
submitted a bid that conforms to the requirements of the Contract Documents without reservations or exceptions, but
the Owner requires that another bid be accepted, then the Contractor may require that a Change Order be issued to
adjust the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the

AlA Document A111 711 -1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963,1967,1974,1978, 1987 and 1997 by The American Institute of Architects.
All rights reserved. WARNING: This AlA"' Document is protected by U.S. Copyright law and International Treaties. Unauthorized reproduction or 8
distribution of this AlA~ Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was produced by AlA software at 15:11:31 on 05/19/2006 under Order No.1 000182995_1 which expires on
7/23/2006, and is not for resale.
User Notes: Clayco A 111 - Koll - lntellicenter - Dallas v3 (5· 19·06) (2347931739)

R.P. Appx. 024
 Owner by the Contractor and the amount of the subcontract or other agreement actually signed with the person or
entity designated by the Owner.

§ 10.3 Subcontracts or other agreements shall conform to the applicable payment provisions of this Agreement, and
shall be lump sum contracts and shall not be awarded on the basis of a fixed fee or cost plus a fee without the prior
consent of the Owner.

§ 10.4 The Owner shall be invited to all subcontract bid and design review meetings.

§ 10.5 Contractor will. and will cause its subcontractors to comply with the terms of the Contract Documents
applicable to the portion of the Project performed by them. If any portion of the Project that has been subcontracted
by Contractor is not prosecuted in accordance with the Contract Documents. on request of Owner the subcontractor
shall be replaced and shall not be employed again on the Project.

§ 10.6 Contractor shall include a provision in the contract with each subcontractor authorizing assignment of such
contract to Owner in the event of a termination by Owner of the Contract Documents with Contractor.

§ 10.7 As used in the Contract Documents. the term "subcontract" shall also include purchase orders and rental
agreements for materials or equipment and the term "subcontractor" shall also include vendors or suppliers of such
material or equipment

ARTICLE 11 ACCOUNTING RECORDS
The Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper
financial management under this Contract, and the accounting and control systems shall be satisfactory to the
Owner. The Owner and the Owner's accountants shall be afforded access to, and shall be permitted to audit and
copy, the Contractor's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase
orders, vouchers, memoranda and other data relating to this Contract, and the Contractor shall preserve these for a
period of three years after final payment, or for such longer period as may be required by law.

ARTICLE 12 PAYMENTS
§ 12.1 PROGRESS PAYMENTS
§ 12.1.1 Based upon Applications for Payment submitted to the Arehiteet Owner by the Cem£aeter ana Certifieates
fur Paymem: issasa by the ,'\Fehiteet, Contractor, the Owner shall make progress payments on account of the
Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents.

§ 12.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of
the month, or as follows:

§ 12.1.3 Provided that an Application for Payment is received by the Ar€hlteet Owner not later than the first (l ' 1) day
of a month, the Owner shall make payment to the Contractor not later than the twentieth (20th) day of the same
month. If an Application for Payment is received by the A:rehiteet Owner after the application date fixed above,
payment shall be made by the Owner not later than f--+twenty (20) days after the A.i'€hiteet Owner receives the
Application for Payment.

§ 12.1.4 With each Application for Payment, the Contractor shall su bruit .@}_payrolls, petty cash accounts, receipted
invoices or invoices with check vouchers attached, and any other evidence required by the Owner er '\relli>eet to
demonstrate that cash disbursements already made by the Contractor on account of the Cost of the Work equal or
exceed (1) progress payments already received by the Contractor; less (2) that portion of those payments attributable
to the Contractor's Fee; plus (3) payrolls for the period covered by the present Application for Pavment (b)
unconditional lien waivers in such form as Owner may reasonably require for the prior month's oayment by Owner
to Contractor. executed by Contractor and all first tier subcontractors mechanics and materialmen on the Project. (c)
conditional lien waivers in such form as Owner may reasonably require for Paymeat.the current month's payment by
Owner to Contractor. executed by Contractor and all first tier subcontractors. mechanics and materialmen on the
Project the only condition thereof being the receipt of payment from Owner (or Contractor in the case of the
subcontractors. mechanics and materialmen). (d) an affidavit executed by Owner indicating the names of all
AlA Document A111'M -1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 ancl1997 by The American Institute of Architects.
All rights reserved. WARNING: This AlA"' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or g
distribution of this AlA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was produced by AlA software at 15:11:31 on 05119/2006 under Order No.1000182995_1 which expires on
7/23/2006, and is not for resale.
User Notes: Clayco A111 • Koll-lntellicenter ·Dallas v3 (5·19-06) (2347931739)

R.P. Appx. 025
 subcontracts and materialmen that have worked on the Project since the date of the last Application for Payment.
and (e) within 45 days after the foundation for the Project has been poured. a foundation survey showing the
location of the foundation for the Project. along with the boundaries of the Land the location of any flood plain and
all easements and other title exceptions affecting the Land and any set back or other building restrictions as set forth
on the most recent Survey.

§ 12.1.5 Each Application for Payment shall be based on the most recent schedule of values submitted by the
Contractor and approved in writing by Owner in accordance with the Contract Documents. The schedule of values
shall allocate the entire Guaranteed Maximum Price and the Contractor's current estimate of the Cost of the Work
among the various portions of the Worlc, except that the Contractor's Fee shall be shown as a single separate item.
The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the
Arefiiteet Owner may require. This schedule, unless objected to by the Arekiteet, Owner. shall be used as a basis for
reviewing the Contractor's Applications for Payment.

§ 12.1.6 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end
of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the
percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by
dividing (a) the expense that has actually been incurred by the Contractor on account of that portion of the Work for
which the Contractor has made or intends to make actual payment prior to the next Application for Payment by (b)
the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.

§ 12.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be
computed as follows:

.1 take that portion of the Guaranteed Maximum Price properly allocable to completed Work as
determined by multiplying the percentage of completion of each portion of the Work by the share of
the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.
Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute
shall be included as provided in Section 7.3.8 of AJA Deeumeat A2Gl 1997;the A201:

.2 add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in
advance by the Owner, suitably stored off the site at a location agreed upon in writing;

.3 add the Contractor's Fee, less retainage of ( ).Tke ten oercent CIO%) of the first 50% of the Cost of
the Work (using the Guaranteed Maximum Price as the Cost of the Work for this pumose) and zero
percent (0%) retainage thereafter. The Contractor's Fee shall be computed upon the Cost of the Work
described in the two preceding Clauses at the rate stated in Section 5. L2 or, if the Contractor's Fee is
stated as a fixed sum in that Subparagraph, shall be an amount that bears the same ratio to that fixed-
sum fee as the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of the
probable Cost of the Work upon its completion;

.4 subtract the aggregate of previous payments made by the Owner;

.5 subtract the shortfall, if any, indicated by the Contractor in the documentation required by Section
12. 1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently
discovered by the Owner's accountants in such documentation;aad

.6 subtract amounts, if any, for which the Arebiteet Owner has ritkkelEI er aellified not approved a
CeFtifieate fer Payment as provided in Section 9.5 of AlA Document A201 1997.A201-1997· and .

.7 Thirty {30) days after Substantial Completion of the Work any retainage then held by the Owner
shall be due and payable to the Contractor provided that such payment may be reduced by the cost of
completing any incomplete Work or the disputed amount of any unsettled claims.

§ 12.1.8 Except with the Owner's prior approval, payments to Subcontractors shall be subject to retainage efast less
tkae ( ). as set forth in Section 12.1.7.3 above. The Owner and the Contractor shall agree upon a mutually

AlA Document A111TM -1997. Copyright © 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects.
All rights reserved. WARNING: This AlA" Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or 10
distribution of this AlA"' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was produced by AlA software at 15:11:31 on 05119/2006 under Order No.1000182995_1 which expires on
7/23/2006, and is not for resale.
User Notes: Clayco A111 - Koll- lntellicenter- Dallas v3 (5-19-06) (2347931739)

R.P. Appx. 026
 acceptable procedure for review and approval of payments and retention for Subcontractors. Thirtv days after any
Subcontractor fully performs all of its obligations under its Subcontract and the Contractor has approved and the
Owner has accepted such work upon reauest of the Contractor. the Owner shall release the full amount of the
retain age for such Subcontractor to the Contractor for payment to the Subcontractor provided that such
Subcontractor has provided a final lien release aPPlicable to such payment (as described in Section 12.1.4 above
conditional until payment clears. with an unconditional lien release to follow within 10 days after such payment
clears).

§ 12.1 .9 Ia takiag aetiea ea the Cealfaetar' s l.o.flplieat:iaas fur P~·meat, the Attshiteet shall be eatitled te rely aa the
aeeuraey aad eampleteaess af the iafurmat:iaa famished by the CaatFaetar aad shall aat be deemed ta represeat that
the Arelritest has macie a eetailed eJtamiRatiea, aallit er aritt.metie "erifieatiea sf the deeWHeatatiaa submitted ia
aeeerdaaee •, ith Seetiea 12.1. 4 er ether sapflert:iag data; that the Attshiteet has made elffiaust:i, e er eeatiaaeas ea
site iRSfleetiaas er that the Arehitest kas maEie eJ•e aaaer Seetiea 13.2 eelew, eJflich the ·work to be executed by the
Contractor is described. The Contractor may retain one record set. Neither the Contractor nor any Subcontractor,
Sub subcontractor or material or equipment supplier shall own or claim a copyright in the Drav;ings, Specifications
and other documents prepared by the Architect or the Architect's consultants, and 1:mless otherwise indicated the
Architect and the Architect's consultants shall be deemed the authors of them and will retaiR all common law,
statutory and other reserved rights, in addition to the copyrights. All copies of Instruments of Service, except the
Contractor's record set, shall be returned or suitably accmmted for to the Architect, on request, upon completioR of
the Work. The DmwiRgs, SpecificatioRs and other doCl:l:ments prepared by the Architect and the Architect's
consultants, and copies thereof furnished to the Contractor, are for use solely with respect to this Project They are
not to be ased by the Contractor or any Sabcontractor, Sab sabcontractor or material or equipment sapplier oR other
projects or for additioru; to this Project outside the scope of the Work '.•mer.

c. Telephone and DSL quality Internet services for the offices. One additional S6flarate
telephone line in a location of the Owner's ohoioe for sepa!ate faK HSe by the
Owner/l\rehitect/ Engineer. (Fax machine furnished by Owner, if available at site).

d. Copier capable of 11xl7 format and onsite drawing plotter capable of 36" paper
width format for shared use by Design/Build Contractor, Owner and Owner's
consultants.

DIVISION 2 - SITE WORK

Section 2A - Subsurface Investigation

Subsurface Investigation will be completed by Koll Development.

All on site inspections and monitoring the excavation will be paid for by Koll Development.
Every site location will involve different soil characteristics that will affect the earthwork,
paving and foundation design.

Section 2B - Site Preparation

Site preparation and clearing shall be provided to remove vegetation, trees and/or shrubs in the
new construction areas unless noted to be reused or salvaged.

5
R.P. Appx. 091
 Section 2C - Earthwork

All earthwork shall be performed per the recommendations of the geotechnical design report.

Provide mass grading of entire site including all cut and fill required. The existing pile and any
excess material from the cut to fill operation will be hauled off by Koll. Excess topsoil and
vegetation will be strategically stockpiled for future placement in landscape berms.

Excavation to subgrade elevations for all interior footings and slabs on grade. General and
rough grading of the site to achieve the proposed subgrades.

Finish grading of areas around the buildings, paving and sidewalks to achieve proper drainage
and uniform surfaces; finish grading for the building area and site to a 0.1 foot (±) tolerance.

Finish planting areas will be finish graded for planting by landscaping contractor as part of the
work. All planting and sod areas shall have a minimum of 4" topsoil. Topsoil work will be
completed if necessary out of landscape budget.

Design/builder shall protect and maintain any and all existing utilities, drives and parking areas
which are to remain in service and are adjacent to the work during the course of construction
activities.

Section 2D - Storm Sewers and Utilities

Underground storm-sewer system will be installed to collect surface storm water run-off
throughout the site and drain to adjacent off site system.

Provide all water service for domestic use and fire protection with new hydrants, as required.

Provide underground service for electric and telephone. TXU fees for electric service will be
paid by Koll.

The gas service is by Koll Development.

All utility work will be limited to work on site and as indicated on the civil documents. The
sanitary sewer and water utility work are to service building tie roof drains into storm sewer
system.

Section 2E - Paving and Surfacing

The work includes concrete paving and curbs as shown on the Civil drawings including entry
and island work along Regent Boulevard.

Provide curb cuts for entrances as shown.

Pavement markings to be white two coat paint system.

Provide concrete pad at loading dock and dumpster pad. Provide concrete pad for transformer.

Provide $25,000 budget allowance for exterior hardscape; this includes fountains, artwork, brick
pavers, signage and furniture at the entrance locations. The base bid includes concrete sidewalks
@ the 2 entrances.
6
R.P. Appx. 092
 Section 2F - Irrigation System

A landscape irrigation system design and installation will be provided as an allowance of
$75,000.

Section 2G - Landscaping

An allowance of$225,000 has been provided for landscaping.

DIVISION 3 - CONCRETE

Section 3A- Cast-In-Place Concrete

Reinforced-concrete at foundations based on 3500psi compressive strength at 28 days.

Provide all concrete work in accordance with the structural drawings.

Concrete sidewalks in locations and width as indicated on the site plan, standard-broom finish
on a 60'' square pattern, 4" concrete minimum 4000psi and rebar and granular base if required
by code.

Reinforced concrete drilled piers with bearing capacities as recommended by the structural
engineer.

First, Second, 1bird and Fourth floor concrete structural slabs over 2" metal decking and beams
with mesh reinforcing and 4000psi concrete (3" thick). Concrete to be steel troweled to a
smooth finish within normal tolerances.

Provide six (3) sets of pan stairs; regular weight concrete at treads and landings.

Provide non-shrink, non-metallic grout as required for all column base plates.

Provide foundation pits and slab at elevator construction. (Three (3) elevators included).

Section 3B- Tilt-Up Concrete Panels

All concrete panels will be completed as site cast, reinforced, architectural concrete panels. All
Tilt-Up panels will be designed and constructed with the most up-to-date quality assurance
programs available through the Tilt-Up Concrete Association, Concrete Specification Institute,
Concrete Council, and Clayco Construction Company's own high standards. An alternate will
be provided to have 15' wide panels instead of 30' wide. The window configuration at the top
level will need to change if the 15' wide panel option is pursued.

The system will be detailed in conjunction with all aluminum window and curtain wall systems
to provide wholly integrated exterior building cladding system.

A tilt-up screen wall will be provided for the truck dock area

7
R.P. Appx. 093
 DIVISION 5- METALS

Section SA - Structural Metal Framing

Structural steel shall comply with ASTM A-36 and A572, GD50 as noted on drawings and
structural steel framing shall be provided to include the following:

Elevated floor slabs are designed for lOOlb. live load, with Code allowance reductions.

Structural steel column and beam system to support the floor and roof structures. All shapes
will be installed.

Steel framing supports for the metal screen wall.

Miscellaneous structural steel as required for new construction.

Steel channel framing as required for floor and roof blockouts.

Section SB -Metal Joist and Metal Decking

Structural steel beams for 151, 2nd ,3rd and 4th floors and bar joist at roof deck. All joists shall be
designed and installed per SJI specifications.

Steel roof decking to support roofing system per SDI Standard No. 1 with factory primer. 1 W'
metal decking to be 22 gauge painted. Roof deck and joist shall be sloped to provide 1/4" per
foot slope for positive roof drainage.

2" x 19 gage galvanized steel decking to support concrete slab at the first, second, third and
fourth floors.

Section 5C - Metal Support System
All interior partitions shall contain standard metal studs on 16" centers, size and gauge as
required unless otherwise noted.
Columns, chases and soffits shall be furred with metal studs, furr ceilings where indicated to be
drywalled (fired rated where required).

All lintels, 6" pipe bollards (concrete filled), steel tube and hand rails and miscellaneous other
steel as shown on architectural and structural drawings.

Mechanical equipment supports, as required.

Include Morins X-12 type horizontal prefinished panel system for mechanical screen and
vertical entry element at all entries. Include metal stud framing as required.

Section 5D- Metal Fabrication

Steel angle dock nosing (embedded in concrete at the outer edge of dock).

Stair system with steel pan treads and landings with concrete fill.

8
R.P. Appx. 094
 Section SD - Metal Fabrication - continued

Include Alucobond metal panel system at vertical features and roof parapet condition per the
drawings.

Include sunscreens at 3 levels near both entries and building ends.

Metal access ships ladder to roof hatch at one stair location.

Elevator divider beams and sill support angle.

DIVISION 6 ~WOODS AND PLASTICS

Section 6A - Rough and Finish Carpentry

Wood blocking, nailers, grounds blocking at parapet walls, furring and framing with standard
construction grade #2 yellow pine or Douglas for lumber required to complete all new
construction, (fire treated as required by Code).

Each electric closet will have one wall with plywood mounted to it for installation of telephone
equipment. Telephone equipment by others.

Solid surface lavatory tops for the restroom lavatories for one core at each floor for a total of
eight (8) restrooms.

One full length wood shelf only a janitor's storage closets. Shelf constructed of A WI custom
grade plywood and exposed edge receiving a hardwood edge.

Installation of all toilet accessories in restroom lavatories.

Window sills shall be 1116" general purpose plastic laminate on 3/4" APA high density overlay
plywood. At curtain wall, provide metal sills.

DIVISION 7- THERMAL AND MOISTURE PROTECTION

Section 7A- Insulation and Fireproofing
3-1/2" (R-13) fiberglass with foil faced vapor barrier to above ceilings.

1" rigid insulation board on exterior walls at spandrel glass, otherwise, batt insulation will be
used at exterior walls.

2" rigid polystyrene insulation board on foundation perimeter walls below floor slab.

Provide fue rated assembly by use of drywall or spray on ftreproofmg at beams extending from
the rated stairwells to the fust adjoining structural member in accordance with applicable codes.

Provide floor to floor fireproofing as required for all penetrations.

Include fireproofing main beam supports as required for all stairwells.

Section 7A- Insulation and Fireproofing (Cont)
9
R.P. Appx. 095
 Include vapor barrier type insulation above ceiling areas; seal all joints carefully, especially at
perimeter condition at 4th floor attic space.

Section 7B - Roofmg

Roofing shall be 45 MIL mechanically attached TPO polymer based roof system with R value of
20 (meet the energy code in each area).

Roof area to be drained by interior roof drains located along the exterior wall.

10 year warranty (material and labor) provided by the manufacturer after his inspection of the
roof.

Section 7C - Flashing and Sheet Metal

Flashing and sheet metal as required for the roof parapet walls.

Paint-grip, galvanized sheet metal installed at locations requiring flashing, counterflashing and
roof drain pockets unless otherwise noted on drawings.

Prefinished and pre-formed aluminum coping at parapets as required, unless otherwise noted on
drawings.

Section 7D - Roof Accessories

Roof hatch and ships ladder installed for access to roof.

Section 7E - Caulking

Caulking at required joints and intersections to two different materials. Exterior joints shall use
two component polyurethane based sealing compounds, Tremco Dymeric or equal. Interior
joints and under thresholds shall be architectural grade caulking compounds, Sorrebom Kaukit,
or equal. Provide closed cell backer rod as required, material shall be round rod.

DIVISION 8 -DOORS AND WINDOWS

Section 8A - Metal Doors and Frames

Hollow metal doors and frames as shown on drawings will be primed and coated with 2 coats of
gloss enamel paint. All hollow metal frames will be welded at seams. All doors shall be 18
gauge, 1-3/4" thick with finish faces, exterior door shall be insulated.

Aluminum frames at passages to restrooms and building maintenance rooms and stairways.

Hollow metal doors at passages to mechanical equipment to be fire-rated as required.

One (1) 8'x9' manual overhead door at loading dock. The compactor opening will be provided
by Clayco; the door to the compactor (if necessary) will be provided by the compactor vendor.

Hollow metal frames at pump rooms and building electrical room.

10
R.P. Appx. 096
 Section 8B - Wood Doors

Any wood doors used by tenant shall meet or exceed the following specification:

Wood doors at all passages throughout interior unless otherwise noted doors to be 1-3/4" thick,
solid core, mahogany veneer doors to be fire-rated as required. Doors to be 3 '-0" x 8 '-0" (H) in
aluminum metal frames.

Section 8C - Glass and Glazing

Furnish and install an insulated store front window system at building off-sets. Clear anodized
aluminum finish per the architectural drawings, glazed with insulated glass units per the
architectural drawings. Glass to be clear system with low E similar to the Atlanta project.

Aluminum clad insulated punched window system by Vistawall (basis of design) or equal.

Mirror glass in all bathrooms, glass to be 1/4" thick.

Provide glass feature wall at main stairwell (all levels).

Provide two (2) double glass door vestibules at 1 entry.

Provide revolving door and two (2) single glass doors at main entry.

Section 8D - Hardware

Hardware shall include the following and will meet all ADA requirements.

EXTERIOR DOOR HARDWARE:
1-1/2 pair hinges
1 door stop
1 exit device
1 hydraulic closure
1 cylinder lock
1 weather strip and gasketing
1 sill sweep
1 strike lock shield
1 threshold
Code required panic hardware (where required).

INTERIOR DOOR HARDWARE:
1-1 /2 pair hinges
silencers
1 latch set (Mortise)
1 door stop
Toilet room doors shall also have push/pull plates, kick plates and closers
All hardware will be satin chrome
All tenant supplied material must meet this specification.

11
R.P. Appx. 097
 DIVISION 9 - FINISHES

Section 9A - Gypsum Drywall

All columns to have metal studs installed with drywall installation as part of the TI work.

Partitions and furring shall be fire-rated with 5/8" Type "X" gypsum board where required.

Moisture-resistant gypsum board shall be used in toilet rooms, janitor closets and pump room
exterior soffits, unless otherwise noted.

Partitions at toilet rooms, mechanical and electrical rooms shall be full height and sound
deadened with sound batt insulation. Bathroom ceilings to be drywall.

Stairwells and elevator shaft enclosures shall consist of gypsum 2 hour construction at all levels.

Exterior wall framing shall receive 3-5/8" stud framing with insulation and vapor barrier to
allow for voice, data and electrical work in the future.

Main lobby will include architectural grade drywall, coffered ceiling & metal pan ceiling. The
elevator lobby on 2nd, 3rd and 4th floor will also receive a drywall ceiling.

Include exterior framing as required for Alucobond supports at parapet elements and upright
locations.

Section 9B - Ceramic and Granite Tile

Provide ceramic tile per drawings at the floor and wet walls (full height) in all public toilet
areas.

Provide epoxy terrazzo in the entire main lobby area with tile base.

Provide porcelain tile boarder with cove base at 2nd, 3rd and 4th floor elevator lobbies.

Section 9C - Acoustical Ceiling

Upgraded 2x2 White aluminum grid for acoustical ceiling furnished and installed at decorative
soffit areas. No TI ceiling grid or pads are included.

Section 9D - Carpeting and Flooring

Carpet in the tenant finish area shall be furnished and installed under the tenant finish contract.

Provide carpet inset at 2nd, 3rd and 4th floor elevator lobby areas.

Main stairwell to be upgraded with carpet. The 2 secondary stairs will have exposed concrete
treads with painted stair stringers and drywall partitions.

Include heavy duty traffic rated sheet vinyl at lower level corridor areas.

Section 9E - Painting
12
R.P. Appx. 098
 The exterior of the building will be acid etched and include a one coat MODAC paint system on
all surfaces.

Drywall ceilings and walls to receive two coats of paint.

All exterior sheet metal to receive two coats of paint.

All hollow metal doors and frames to receive two coats of paint.

All exposed miscellaneous metal to receive two coats of paint.

Painting will be provided in the stairways. Two secondary stairwells will have exposed concrete
treads with exposed stringers and one stairway to be completely finished with drywall and
carpet.

DIVISION 10 - SPECIAL TIES

Section 1OA - Identifying Devices

All interior signage and directories will be provided by Koll Development.

Exterior signage will be provided by Koll Development. Include conduit and junction box for a
building mounted sign and one conduit and junction box for an entry monument sign.

Section lOB - Partitions at Restrooms

Full height gypsum board with louvered wood doors and wood frames.

Section 10C- Toilet and Bath Accessories

(2) grab bars per handicap toilet stall.

(1) toilet tissue holder per toilet stall to hold two rolls of paper.

(1) paper towel dispenser/disposal per toilet rooms.

(1) sanitary napkin dispenser per ladies room.

(1) sanitary napkin disposal at each stall (ladies only).

lavatory top soap dispensers at each lavatory, per toilet room.

Section 1OD- Dock Equipment

Provide dock bumpers and dock edge angle at indicated areas on architectural drawings.

Include one (1) 35,000 pound mechanical dock leveler (6'x7').

Section 1OE - Fire Extinguisher Equipment
13
R.P. Appx. 099
 Provide Code required quantity of stainless steel semi-recessed fire extinguisher cabinets for the
base building.

Section 1OF - Access Flooring

Under the shell budget, the access :flooring will be stockpiled on the floor. The access :flooring
locations include all areas in the building besides the following: bathrooms, stairwells, dock
areas, elevator lobby at upper levels, and complete 1st :floor lobby areas from both main entries
across the building.
Base Area -Provide 14" high raised access :floor system at 15\ 2nd, 3rd and 4th floor levels to receive
carpet tiles. Support system to be bolted pedestals. Tiles are concrete filled bare metal type with
point load capacity of 1,000 lbs. No grounding is provided. An alternate has been provided to
utilize 1,250lb for all access :floors including laminate tile locations.

Electric Rooms - Provide 14" high raised access :floor system with top finish of high-pressure
laminate with integral trim. Support System to be pedestals. Tiles are concrete filled metal type
with point load capacity of 1250 lbs. No grounding is provided. Material manufacturer is Tate
Access Floors or equal.

Four panel lifters are included. Two emergency panel lifter wall plates are included.

DIVISION 12 -FURNISHINGS

Section 12A - Horizontal Blinds

Blinds will be included at all exterior glass punched window systems. Blinds to be 1" horizontal
mini-blinds equal to Bali or Levelor in a manufacturer.

Section 12B - Floor Mats and Frames

Provide one piece polypropylene mats with anodized aluminum frames at two (2) entry
vestibules.

DIVISION 14- CONVEYING SYSTEMS

Section 14A- Hydraulic Elevators

Provide one (1) freight elevator with a 4,500# capacity. Interior cab shall be 5' -8" x 7' -1 0" x
9' -0" high.

Provide two (2) passenger elevator with a 3,500# capacity. Interior cab shall be 4' -9" x 6' -8" x
7' -4" high.

Freight elevator will include 1/2" thick damage control pads.

Passenger elevators will be center opening. Freight elevator will be side sliding.

Elevators will operate at 150 f.p.m. and operate on 208V, 3-phase, 60 hertz. Passenger elevator
will have a 40hp motor. The freight elevator will have a 60hp motor.
Section 14A- Hydraulic Elevators (cont)
14
R.P. Appx. 100
 Provide duplex micro-processor control.

Signals will be standard stainless steel finish, digital car position indicators with illuminated car
and hall buttons.

In-car lantern with gong and floor passing signals.

Constant features will be a Lambda II infrared, multi-beam door reversal device with remote
elevator monitoring REM ready, fire fighter service Phase I and Phase II and handicap and
Braille markings.

DIVISION 15 -MECHANICAL

Section 15A- Fire Sprinkler System

The contractor shall provide an engineered site five (5) protection layout for installation by
others.

This building is classified as a Light Hazard occupancy. The combination sprinkler and
standpipe system shall be hydraulically designed to deliver a density of 0.10 gpm. over the most
remote 1,500 sq. ft. with hose stream allowance per local requirements. Any Ordinary Hazard
Group I areas will be hydraulically designed for a density of 0.15 gpm. over the most remote
1,500 sq. ft. with 250 gpm for hose stream allowance per local requirements. The minimum
flow rate for hydraulically most remote standpipe shall be 500 gpm. and 250 gpm. for each
additional standpipe, with the total not to exceed 1,250 g. p.m. 100 psi at the top of the standpipe
is required. Interconnect each standpipe at the lowest floor level. Provide control valve at the
base of each standpipe. Provide roof manifold at required areas per UBC and IFC.

Include pump system if required by code incoming flow/pressure to meet building performance
requirements. Contractor shall provide fue flow test on nearest available water supply.

Contractor to provide incoming service back:flow preventer of the type required by local
authorities.

Fire protection work starts at the flanged lead-in connection inside of the building.

Provide 1" outlets on branchline piping with 1" sprigs and upright brass sprinkler heads to
protect the building shell areas. Upon tenant finish, upright sprinklers will be removed and
replaced with pendent sprinklers per tenant requirements. In finished shell and core areas
provide concealed heads located to work a pattern in the room.

The Fire Protection Contractor shall provide sprinkler head layout, hydraulic calculations, final
fue pump and jockey pump selection based on hydraulic calculations, pipe routing with sizes
and elevations as required by N.F.P.A. (latest edition) and insurance carrier.

All work shall comply with the fue protection requirements and codes of the City Building
Department, the State and Local Fire Marshal and N.F.P.A. National Fire Codes.

Section 15A- Fire Sprinkler System (cant)
15
R.P. Appx. 101
 The Contractor shall submit shop drawings (including device/equipment product data
submittals) and hydraulic calculations to the municipality having jurisdiction and the
Architect/Engineer prior to commencement of project and purchase of materials. Contractor
shall submit as-built drawings and maintenance manuals as directed by the Architect/Engineer.

The Fire Protection Contractor shall coordinate his work with that of all other trades.

The Fire Protection Contractor shall guarantee all labor and materials for the period of one year
from the date of completion.

Fire protection sprinkler piping shall be either Schedule 40 black steel pipe with screwed fittings
or Schedule 10 black steel pipe with grooved fittings.

Sprinkler heads shall be UL listed and FM approved and shall be quick response rated at 155
deg. F (or temp required for location).

Contractor shall provide and install each of the following devices and pieces of equipment:

1) Fire department connection. (Polished chrome)
2) Fire hose connections and caps at each stair landing.
3) Floor control valves at each floor with drain visor.
4) Inspector's test connection for each zone.
5) Spare sprinkler cabinet with heads and wrench

Contractor shall provide sprinklers of the type installed for the use as spares to the building
Owner. The number of sprinklers shall be as required by code. Contractor shall provide
sprinkler wrench for each type of sprinkler supplied. Spare sprinkler cabinet shall be located
next to the fire pump.
The Fire Protection Contractor is responsible for all leak damage due to system, installation and
materials.

Contractor shall perform all tests on system as required by N.F.P.A., local code and insurance
carrier.

All piping shall be suspended independently from building structure. Vertical pipe risers shall be
supported at least once on each story height. Riser clamps at base of riser shall be supported at
building structure. All supports and hangers shall be so constructed as to allow for proper pitch
and expansion of pipes. Position exposed riser clamps so they do not create a tripping hazard.

Contractor shall remove all debris from job site daily to Clayco provided dumpster and leave all
work and equipment in clean working condition.

Contractor shall provide and install all pipe sleeves. Sleeves shall be at least 1-112 times the size
of the pipe and shall be similar material to prevent reaction between pipe and sleeve.

Contractor shall provide and install fire stopping as to completely seal all penetrations of fire
rated assemblies, walls and ceilings caused by this trade. The system shall be installed
Section 15A- Fire Sprinkler System- continued
16
R.P. Appx. 102
 according to an Underwriter's Laboratories approved through penetration fire stopping
protection system, have been tested in accordance with ASTM #E-814 and UL # 1479 and shall
have an "F" rating not less than the required rating of the wall penetrated. The annular space
between pipe and the fue rated assembly shall be filled with the approved material so as to
maintain the integrity of the fue rating of the assembly penetrated. Insulation shall not pass
through fire rated assemblies.

Section 15B- Heating, Ventilating and Air Conditioning

Piping, except branch lines feeding heads in rooms, shall not pass through stairwells, five rated
exit pathways, electrical rooms/closets, and tele/data rooms.

All heating, ventilating and air conditioning work will be designed and installed in accordance
with the local adopted codes (including International Energy Code) and with the ASHRAE
standards and guidelines, SMACNA standards and the outline below. All equipment with
electrical connections will bear the UL Label and all refrigeration equipment will be labeled in
accordance with ARI.

An HVAC system will be provided that utilizes four (4) packaged electric heating and electric
cooling, down discharge, roof top package air conditioning units (RTUs). RTUs will provide
550 tons of capacity. The following features are required:

1) Return air bypass with damper, damper actuator and temperature control (supply air
temperature must be re-heated to 61-62 degrees F).
2) Multiple stage electric heating coil (4 stages). Step controller required.
3) 100 % power exhaust.
4) 30% filter section with 2 sets of throwaway filters. Also provide one set of construction
filters in the units.
5) 0 to 100% economizer with enthalpy control and low ambient lock out control.
6) Freeze stat protection.
7) Supply air temperature control.
8) DDC temperature control panel/module with BACNET & or LON capabilities as well as a
human interface unit mounted panel.
9) Factory installed and wired unit electrical disconnect switch for a single point connection.
10) Factory installed and wired GFI convenience outlet.
11) Complete manufacturer's 1 year warranty for parts and labor from the date of start up.
12) Additiona14 year extended parts only compressor warranty.
13) High efficiency motors for supply and exhaust.
14) Complete static pressure control capabilities referencing outside, space, duct and under
floor pressures.
15) Variable frequency drives on the supply fan as well as spring isolation.
16) 460 V AC I 60 HZ I 3 phase.
17) Hinged access doors.
18) Flat roof curb.
19) Low leak outside air dampers.
20) Low leak supply air dampers.
21) Independent control of outside and return air dampers.

Section 15B- Heating, Ventilating and Air Conditioning
17
R.P. Appx. 103
 The system will be designed meeting the following design conditions:

Outdoor Design Conditions:
Summer: 100°F DB/74°F WB
Winter: l7°F WB

Indoor Design Conditions (occupied area):
Summer: 75°F DB (+/-2) 50% RH
Winter:72°F DB (+/-2)

Outdoor Ventilation: Per ASHRAE Standard - 20.0 CFM/person
Infiltration: 1.0 CFM!linear foot of exposure
Heat Gain: One person per 120 sq. ft. of occupancy
1.5 watts per sq. ft. demand for lighting
3.0 watts per sq. ft. miscellaneous power
Occupants: 1 per 120 SF (at 245/155 sensible/latent BTU/Hr each).

The design will be based on the use oftinted, double paned, insulated glass for curtain wall and
at all other window areas with the blinds open.

Return air will be provided in perforated white finish. In the core areas only, insulated plenum
type linear supply slot supply air diffusers in the ceiling will be provided. Exhaust grilles will be
square, louvered faced. Return air grilles in each office and conference room (provided in tenant
finish) will include acoustically lined sound boots. All in floor supply air will be delivered
through the in floor VAV terminal I diffuser. The in floor air devices will be installed in the
future T.I.

Zoning of fan terminals and VAV boxes shall not be less than 1 zone per 250 sq. ft. with a
dedicated fan terminal unit in each building comer with two exterior exposures. Each fan powered
box will incorporate an electric heating coil. All in floor FTUs and VAV s will be stockpiled to the
floors and installed in the future T.I. In floor FTUs will be sized at maximum of 50 linear feet at
the exposure.

Shell and core construction of toilets, corridor, etc. will be completed using VAV units with a
maximum size of 1600 CFM each.

Cabinet unit heaters will be furnished in the vestibules. Heating and cooling will be provided to
main stairways and entry vestibule. Temporary heat will be installed by providing and installing
(4) 10 kW electric unit heaters above ceiling height per floor. These will be disabled once the in
floor FTUs are installed in the T .I. build out.

Exhaust fans will be provided to ventilate the janitor's closets and main toilet rooms. The system
will be sized at a minimum of 2 CFM/SF of exhaust for toilet rooms and janitor's closets. Make-
up air for the toilet rooms will be provided from HVAC supply air devices. Toilet rooms will be
provided with exhaust grilles.

Exhaust for the elevator machine rooms will be provided.

Stairways will be provided with cabinet unit heaters.

18
R.P. Appx. 104
 Section 15B - Heating, Ventilating and Air Conditioning - continued

Fire pump room will be served by a 5 kW electric unit heater.

The dock area will be served by a 10 kW electric unit heater.

Elevator shafts shall have pressure relief as required by code.

All electric rooms will be exhausted. Make up air will be supplied from HVAC supply air
devices.

Fire dampers, smoke dampers and combination fire/smoke dampers will be provided as required
by code.

Materials and Methods
Ductwork will be galvanized sheet metal, constructed per latest edition of the SMACNA and
ASHRAE. Traverse joints on medium pressure system will be sealed with Hard cast. Insulated,
Class 1 flexible air ductwork will be used for the connections from mediwn pressure trunk
ductwork to variable air volume units, fan terminal units and slot diffusers. Acoustical duct lining
or flexible duct wrap insulation will be provided where required to avoid noise and condensation.
Sound attenuation will be provided as required to achieve an overall maximum NC-40 level in the
office spaces.

Vertical mediwn pressure duct risers will be provided from the RTU s to each floor with, and a
duct loop on each tenant floor will be provided. Acoustically lined, hard return air duct risers, in
shafts, from the lower floors to the RTUs will be provided with a stub out on each floor. On top
floor, a minimum of20 LF of acoustically lined return air duct from the RTU serving this floor
will be provided.

All medium velocity ductwork risers installed in vertical shafts shall be acoustically lined, with
lining extending horizontally 20' from the main riser on each floor.
Return air duct and supply air duct mounted smoke detectors will be provided for all air
handling units 2000 CFM and greater.

A complete direct digital temperature control and building management system will be
provided. Standard features including local PC workstation, dial in and out modem, and
complete color graphics to the VAV level. All wiring, software, hardware, sensors, actuators,
and control panels will be included for a complete and functional system. All core and parking
lot lighting will be controlled and wired to the BMS. Lighting contactors will be provided by
Division 16, low voltage wiring to the contactors will be by Division 15. All low voltage
temperature control wiring will be plenum rated.

Section 15C- Plumbing

All plumbing work will be designed and installed in accordance with the codes listed in Section
1A of this outline specification. All equipment with electrical connections will bear the UL
Label.

19
R.P. Appx. 105
 Section 15C - Plumbing - continued

Soil, waste, vent, storm and water piping systems will be designed and installed in accordance
with the requirements of the local plumbing code.

Soil, waste, and vent piping will be service weight, no-hub cast iron above grade in plenum areas.
Schedule 40 PVC may be used otherwise including underground.

Storm water piping will be Schedule 40 PVC above and below grade. Roof drainage will be
provided by the use of 6" inboard roof drains. The piping system will connect to storm sewer
below first floor grade and exit building foundation wall.

An overflow roof drain system will be provided and will be sized the same as the primary
system and connected to a separate piping system within the building. The secondary system is
to terminate near through the wall near grade.

Water distribution piping will be Type "K" copper below grade and "L" copper above grade.

Water closets will be wall mounted white vitreous china, open front seats, and with battery
operated flush valves.

Urinals will be wall hung, white vitreous china, floor carrier type, with battery operated flush
valves.

Lavatories will be integral with the countertop with chrome plated battery operated sensor type
faucet, grid drain, P trap with cleanout plug, flexible risers, and stops. Insulation of exposed piping
and hot surfaces for handicapped lavatories will be provided.

Mop basins will be 24" x 24" floor set terrazzo with mop hanger, 24" hose, 4" handles, bucket
hook, and elevated vacuum breaker.

Brushed stainless steel, dual-level, semi-recessed, barrier-free self contained electric water coolers
located at each floor.

Provide three (3) wet columns (water, waste and vent).
Provide 1-112" water connection with valve at toilet core area.
Electric water heaters for toilet rooms sized per local plumbing code and ASHRAE guidelines will
be provided. Relief valves will be piped to floor drain. Include For piped systems longer than 100
lineal feet a hot water recirculation loop with pump and aqua stat will be provided.

General purpose and toilet room floor drains will be cast iron with nickel bronze, heel proof
grates.

A dry sump will be provided for each elevator pit - dry sumps to be pumped out with portable
sump pump provided by building maintenance.

Mechanical room floor drains will be medium duty, cast iron, and loose set top with sediment
bucket.

20
R.P. Appx. 106
 Section 15C -Plumbing - continued

Roof drains will be cast iron with sump receiver, under deck clamp, adjustable extension and cast
iron mushroom dome (plastic domes not acceptable).

Overflow drains will be cast iron with sump receiver, under deck clamp, adjustable extension,
exterior water dam and cast iron mushroom dome.

A minimum of 3 frost-proof wall hydrants will be provided at grade. Also 2 hydrants will be
provided at the rooflevel for use for window washing.

4" incoming domestic water service will be provided with a gate valve, a reduced pressure
back:flow preventor (type as required by local plumbing code), a pressure gauge and with the drain
piped to a floor drain. A valved and capped 1-1/2" line for irrigation system backflow preventor
and piping system will be provided. The irrigation system is not included.

Insulation will be provided on all vertical and horizontal domestic water, including inside of wet
chases, and on all horizontal downspout piping and roof/overflow drain bodies.

A stubbed out sanitary sewer and vent connection will be provided on each side of each toilet
room wet wall opening onto the tenant space or corridor for future connections. Provide at each
location, a valved and capped 1" domestic cold water stub out.

Provide the following fixtures:

1. Toilets (wall hung flushometer type)
2. Handicap toilets (wall hung flushometer type)
3. Urinals (wall hung flushometer type)
4. EWC (drinking fountains)
5. Lavatories (custom), each with (3) bowls
6. Janitor mop sinks
7. Hot water heaters

General
All systems will be designed and installed in accordance with all federal, state and local code
enforcement agencies, ADA regulations, the Fire Marshall and the local building department.

Scope of Work
Water Service and Distribution, Plumbing Fixtures and Storm Water System
Sanitary, Waste and Vent System

Water Service and Distribution
Underground domestic water piping will extend from water meter with minimum system
pressure for core/shell total fixture counts. Backflow preventer will be provided at point of
service, separate from fire protection service. Water service will be metered within service pit.

Three (3) hose hibbs around perimeter of building, one (1) hose bibb on roof and (1) 1-1/2"
irrigation system connections will be provided.

Include dual level electric water cooler at each bathroom core.

21
R.P. Appx. 107
 Section 15C- Plumbing - continued

Elevator sump and code required discharge will be provided.

Water service is not sized for any special tenant load requirements.

Domestic Water Systems
The Core/shell system will include hot and cold water service and insulated distribution piping
to all core areas and stub connections/valves for tenant areas.

Fixtures will include commercial grade products in all bathrooms, ADA compliant. Any
exposed plumbing lines (supply and waste) will be chrome plated with appropriate wall
escutcheons at penetrations. All plumbing fixtures will be installed with shut-off valves.
Drinking fountains with central remote chiller will be provided per code. Domestic hot water
will be provided from electric water heaters.

No special water, gas, air or vacuum systems are included for tenant areas.

All water systems will be tested and approved for final use.

Storm Systems
Roof drain bodies and horizontal leader runs to be insulated. A properly sized roof drainage
system including roof drains, vertical piping and storm piping under the building will be
provided. Roof drain collector pipe system will connect into exterior storm system piping.
Include emergency overflow piping from roof drain locations to location above finished grade.

Office ceiling space to be used as a return-air plenum.

Sanitary System
The sanitary sewer will be stubbed into the building and extend through core/shell areas and be
stubbed into tenant areas for future interconnection. No special waste provisions are included
for lab waste.

Materials
Domestic water system: Type Land M copper, above floor, Type K below floor.

Sanitary system: PVC above floor, cast iron below floor.

Storm system: PVC above floor, cast iron below floor.

DIVISION 16- ELECTRICAL DESIGN BUILD

General
All systems will be designed and installed in accordance with all federal, state and local code
enforcement agencies, ADA regulations, the Fire Marshall and the local building department.

Temporary and Construction Power
Temporary service and distribution will be provided to all project trailers, electric scaffolds and
accessories, welding machines and power and lighting loads. Temporary power service and

22
R.P. Appx. 108
 Section 16A -Electrical - Continued

distribution will be protected in accordance with OSHA requirements. Lighting levels and
distribution will be included in all areas to achieve code-required foot-candle levels.

Electrical Service
Service to the building will include (2) 4"C. underground raceway from the property line to
electric utility company pad mounted service transformer. The electric utility company will
provide underground primary cables, service transformer. Building will be metered at electric
utility company secondary voltage rate.

Current transformers, meter compartments, etc. will be included with service switchboards as
required by electric utility company.

Secondary underground conduits/cables and terminations from service transformer to interior
service switchboard will be provided. A separately metered power service will originate from
the electric utility company service transformer to a 75HP fire pump for the building (add
alternate, if required by code). Installation and protection of secondary service conductors will
be in conformance with NBC.

Telecommunications Systems Service
Service to the building will include (6) 4"C. underground raceways from the property line to the
demarcation point within the building. Telecom utility company will provide all service
conductors and/or fiber to tenant areas.

A 4'x8' plywood backboard, a dedicated isolated ground bar and a 20A duplex receptacle will
be provided at the demarcation point and at each Telecom Room. Tenants/Owner will provide
all data and voice wiring and equipment for the building including elevator phone service.
Rough-in boxes and conduits will be provided in all core/shell finished office areas.

(2) 4"C. conduit sleeves will be provided through floor slab between Telecom Rooms.

Power Distribution
Service switchboard will include service connection equipment; space for utility company
equipment; feeder overcurrent devices to support connected loads outlined. Service switchboard
will be rated 480/277V, 3P, 4W Large equipment loads will be 480V, 3 phase; lighting loads
will be 277V, 1 phase or 480V, 1 phase; small receptacle and appliance loads will be 120V, 1
phase. Service switchboard will include digital metering and integral TVSS protection on the
incoming main.

480/277V panelboards will be provided on each floor and sized to support 1.5W/SF tenant area
lighting. Step down transformers and 120/208V panelboards will be provided on each floor to
support 3.5W/SF tenant receptacle and equipment power. 480/277V and 120/208V single and
multi-pole breakers will be provided within floor panelboards for tenant areas lighting and
power loads. Conduits will be installed from tenant receptacle panelboards stubbed into
depressed floor slab areas for floor box wiring by tenants.

Separate 480/277V panelboards will be provided on each floor to support tenant area under floor
electric fan terminal units. Conduits will be installed from floor HV AC panelboards stubbed
into depressed floor slab areas for underfloor fan terminal units by tenants. A separate

23
R.P. Appx. 109
 Section 16A - Electrical- Continued

panelboard will be provided on the 3rd Floor Level to support rooftop HV AC units and
equipment.

Elevator equipment, trash compactor, domestic water heaters, entry or room electric heaters, etc.
will be served from available 480V distribution within building. Site lighting circuits will be
fed from 1st Floor lighting panelboard. Core/shell lighting and power circuits will be shared
with tenant area lighting and power panelboards.

New power Distribution and Lighting/Appliance panelboards will be dead front furnished with
branch protective devices, main bus, main breakers, with AIC rating for available fault current at
installed location. Main buses and connectors will be hard drawn copper or tin plated
aluminum. Framed directories with protective plastic facing will be attached to the inside of
panelboards and
be neatly filled out to identify all circuits and loads. 25% spare breaker and space capacity will
be provided.

Circuit breakers will be quick make - quick break, molded case type with the tripping position
midway between on and off. Breakers will be the bolt-on type with common trip for multi-pole
application. Breakers indicated to be used for lighting circuit control will be switch rated.
Fuses will be UL approved and listed for application, NEMA PB-1 complaint

Step down transformers will be factory-assembled and -tested, air-cooled units for 60-hz service.
Grain-oriented cores, non-aging silicon steel. Continuous copper or aluminum coil windings
without splices, brazed or pressure type internal coil connections. Comply with NEMA ST 20,
and list and label as complying with UL 1561. Enclosures will be ventilated, NEMA 250, Type
2.1nsulation class: 220 degree C., UL-component-recognized insulation system with a
maximum of 150 degree C. rise above 40 degree C. ambient temperature. Transformers may be
hung from structure where acceptable by local authorities.

Receptacle/Equipment Connections
Duplex receptacles will be provided within all core/shell finished corridors 50 feet on center
along all routes. Weatherproof duplex receptacles will be provided at all roof-mounted
equipment per NEC. Duplex dedicated duplex receptacles will be provided per 200SF within
each Electric Room, Mechanical Room, Telecom Room. All wiring devices will be 20A, 125V
specification grade. Receptacles will be mounted 18" AFF and will include plastic coverplates.

Tenant will furnish and install all above and below floor lighting and receptacle branch circuit
wiring within all tenant areas. No power-data floor boxes are stockpiled on floors. No bay
boxes for tenant wiring is included.

Grounding
A fully grounded electrical system per NEC requirements will be provided. Feeder and branch
circuits will contain safety ground conductors in lieu of raceway serving as grounding means.
No column grounding or building ground loop will be provided except for separately device
systems such as transformers, UPS systems, etc.

Lighting Systems
Core/shell lighting will include recessed 3 lamp, (18) 3" deep cell, 2'x4' parabolic troffer
fixtures for one fixture every 80SF all finished corridor routes; fluorescent downlights with
24
R.P. Appx. 110
 Section 16A- Electrical- Continued

specular clear alzak reflectors in Entry and Elevator Lobbies and within Restrooms; pendant
shop lights in all Elect!Mech Rooms, Janitors Closets, etc. Fluorescent fixtures will utilize
electronic ballasts and T-8 lamps.

Tenant Area lighting, branch circuit wiring and control wiring will be provided by tenants
during build out and are not included in core/shell. Minimal lighting will be provided within
empty tenant areas to support owner and code officials requirements.

Exit signs and emergency egress lighting will be provided along all core/shell egress paths. Life
safety lighting will be powered from self-contained battery units.

Exterior metal halide HID site lighting pole mounted fixtures will be provided along all entry
and parking areas. Average maintained exterior foot-candle values will be 1.5 for roadway and
parking areas. Control of exterior lighting will be from contactors at source panelboards with
temperature control system ON/OFF interface.

A material only allowance of $10,000 for decorative Front Office lighting; entry canopy;
monument sign lighting, flagpole lighting and exterior entry bollards is included. (This is
included as part of the current DFW design.)

Fire Alarm System
Building will include a system with devices, control and signaling in compliance with local
authority having jurisdiction and specific project requirements. System will include furnishing
and installing heat detectors; smoke detectors within each Electrical and Mechanical Room;
manual pull stations; fire alarm annunciator panel at main entrance and AutoDial connections to
central monitoring agency.

Duct smoke detectors for all ventilation units over 2,000 CFM will be furnished and installed by
HV AC contractor, devices will be monitored by building fire alarm system; duct smoke
detectors will be provided by electrical contractor on each floor at each return air opening into
return air shaft back to each rooftop unit.

Smoke detectors will be provided at each elevator lobby, Elevator Equipment Room, elevator pit
and top of elevator shafts. Heat detectors will be provided in each Elevator Equipment Room,
elevator pit and top of elevator shafts. Monitoring and control functions will be in conformance
with ASME A 17.3-93, Safety Code for Elevators and Escalators.

Signal devices, strobes and horns will be provided within areas in accordance with NFPA, ADA
Guidelines and local authority having jurisdiction. Connections to fue sprinkler system water
flow switches and tamper switches will be provided.

Fire pump and jockey pump controller monitoring modules will be included (add alternate as I if
required by code).

Initiation and signal devices within tenant areas are not included, but main fire alarm panel will
be sized to accept initiation and signal devices installed by tenants, based on an open plan finish-
out concept.

25
R.P. Appx. 111
 Section 16A- Electrical - Continued

Lightning Protection System
A UL Listed, Master labeled lightning protection system complete with rooftop air terminals,
roof conductors, down conductors, perimeter counterpoise and driven ground rods.

Materials
All feeder circuits will be THHNITHWN copper or aluminum conductors. All branch circuits
will be THHN/THWN copper conductors. UL Type MC feeder cables will be acceptable for
use. UL Type MC cable will be acceptable for branch circuit use. Modular wiring systems will
be used for all Office lighting circuits. Feeders and branch circuits will be routed below floor
slabs in all areas.

The following types of conduits will be allowed for specific applications as follows:
Site Lighting PVC
Feeders- Underground PVC
Feeders-Exposed IMC, EMT (above 7' AFF)
Branch Circuits- Concealed RGS, IMC, EMT, MC Cables

ADDITIONAL CLARIFICATIONS

Contract Documents
The scope of work is based upon Clayco Outline Specification dated December 6, 2005,
Architectural drawings through Progress Set# 1 dated 10/07/05, Structural drawings and Tilt-
Up Wall drawings through Pricing Set dated 10/14/05, and Civil drawings through Pricing Set
dated 10/15/05 and as further clarified in this exhibit to the Agreement ("Outline
Specifications").

LEED
The estimate is based upon achieving basic LEED certification for Core & Shell (24 points). No
allowances are included for achieving a higher rating.

ADDITIONAL CLARIFICATIONS

Contract Documents
The scope of work is based upon Clayco Outline Specification dated October 20, 2005 and
design drawings from Forum dated October 21,2005 and as further clarified above and below.

LEED
The estimate is based upon achieving basic LEED certification for Core & Shell (24 points)
based upon current design assumptions. No allowances are included for achieving a higher
rating.

Exclusions
The following work is excluded from the GMP:

1) Payment & Performance Bond
2) Utility use fees
3) Additional Commissioning required for LEED certification
26
R.P. Appx. 112
 Exclusions (Con't)

4) On-site materials testing services
5) Design services for tenant area build-out
6) Cleanup for owner or TI work
7) Hazardous materials remediation
8) LEED certification costs (Koll has hired Gensler for this process)
9) Painting of interior steel joist and decking
10) Ceiling grid or pads for Tenant Areas
11) Factory Mutual requirements
12) Tenant improvements
13) Undercutting of existing and new subgrade due to poor or unsuitable soil conditions
14) Excludes rock removal or blasting
15) Site fencing & gates
16) Flag poles
17) Trash enclosure
18) Compactor
19) Foundation drainage system
20) Metallockers
21) Interior or exterior signage
22) Furniture, fixtures and unspecified equipment
23) Installation of raised floor system except at core areas
24) Elevator to the roof
25) Specialty Glass at Decorative Stair or 2nd Level Rail
26) Separate gas or electric meters
27) Gas service to building
28) Building humidification or dehumidification
29) Temporary heating of tenant spaces
30) Tenant area lighting and power branch circuit wiring and light fixtures
31) Tenant area fire alarm devices
32) Tenant Finish Lighting or Power Work
33) Standby power system or Emergency power generation
34) Public Address System
35) Data, Voice, Video Systems
36) Security Systems
3 7) Excludes accent lighting for metal screen walls @ roof
38) Utility company fee relating to phone, fiber and Gas or Electric
39) Mudslab below crawl spac~

Miscellaneous Clarifications
1) The access flooring will be stockpiled on each floor as required for future installation by
the tenants. Installation of the floor is only included in the Core areas.
2) Our estimate is based upon the minimum lighting as required by applicable codes for the
tenant spaces.
3) Our estimate assumes that the excess topsoil and vegetation will be stockpiled for use as
fill in the sloped areas north and west of the building.
4) Steel and concrete bids are based upon the 11-23-05 documents.
5) About 20,000 cy of excess material will be loaded and hauled off site by HL Merrill.

27
R.P. Appx. 113
 Allowances
The GMP includes the following allowances:

1) Entry sidewalks and hardscaping upgrades $25,000
2) Landscaping $225,000
3) Irrigation system $75,000
4) Wood, stone & metal trim at main lobby $25,000
5) Wood & metal trim at level2 & 3 & 4lobbies $7,500
6) Light bollards and building accent lighting
@ main building entrances-now part of design
7) Revolving entrance door-now part of design
8) Elevator Cab finishes-now part of design

See the Drawing List, attached hereto as Attachment A.

28
R.P. Appx. 114
R.P. Appx. 115 EXHIBIT A
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R.P. Appx. 152 EXHIBIT A
 FORM OF CONSTRUCTION INDEMNITY AND
ASSIGNMENT AGREEMENT
(General Contractor)

THIS CONSTRUCTION INDEMNITY AND ASSIGNMENT AGREEMENT, dated as
of the _ _ day of , from ,a
- - - - - - - - ( t h e "Contractor") to THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation ("Prudential"), a
("Developer") and a
_ _ _ _ _ _ _ _ _ (the "Venture").

RECITALS

A. Prudential and Developer shall be partners in the Venture, pursuant to Acquire
Joint Venture Interest, dated , _ _ (the 11 Acquisition Agreement") and the
Amended and Restated Limited Liability Partnership Agreement of the Venture, dated
------------, (the 11 IVA"). The Venture is the owner of the Project as more
particularly described in the Acquisition Agreement. All capitalized terms used, but not defined
herein, have the meanings given to such terms in the Acquisition Agreement.

B. The Venture and the Contractor have entered into the
, dated (the 11 Construction Contract"),
---------------
whereby the Contractor agreed to construct the Improvements.

C. The Contractor desires to enter into this Agreement to induce: (i) Prudential to
make Prudential's Initial Contribution (as defined in the Acquisition Agreement) to the Venture;
and (ii) acquire an interest in the Venture, in the manner contemplated by the Acquisition
Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Contractor hereby agrees as follows:

1. Guarantee. The Contractor hereby guarantees all the work performed in
connection with the construction of the Improvements and all materials furnished and installed,
or either, under the Construction Contract including all change orders thereto, to be: (i)
substantially in accordance with the Plans and Specifications attached to the Acquisition
Agreement as Exhibit B and/or modifications thereof permitted pursuant to the Acquisition
Agreement (including any and all replacements or corrections of work performed in connection
with construction ofthe Improvements and materials that may be required pursuant thereto); (ii)
substantially in accordance with all federal, State of , County and City of
_______ laws, ordinances, statutes, rules and regulations applicable to the construction of
office buildings, including, without limitation, local building, environmental, land use and
persons with disabilities requirements, in effect on the date of this Agreement (collectively, the
"Legal Requirements"); and (iii) free from faulty, defective workmanship and materials. The
Contractor agrees to repair, correct or replace, at their own cost and expense, all of the work
performed in connection with construction of the Improvements and materials, or either, covered

R.P. Appx. 153 EXHIBIT A
under said Construction Contract, change orders, modifications or corrections pursuant thereto
that may prove not to be substantially in accordance with the Plans and Specifications (and/or
modifications thereof permitted pursuant to the Acquisition Agreement) or the Legal
Requirements or not to be free from faulty, defective workmanship and/or materials, ordinary
wear and tear excepted. The Contractor does further agree to pay the cost of repairing all
damage to other property resulting from defects in the work, performed in connection with
construction of the Improvements, and materials, or either, covered by this Agreement and to pay
the cost and expenses of replacing other property which may be damaged or disturbed in making
good any defects as provided herein.

This Agreement shall be for a period of 1 year commencing the date of substantial
completion of the Project. This Agreement shall be for the entire work performed in connection
with construction of the Improvements except as may be extended by other guarantees specified
elsewhere in the Construction Contract or as required by applicable law, and materials under the
Construction Contract, and is in no way to be construed as invalidating guarantees for longer
periods where required by the Construction Contract. This Guarantee shall not broaden the scope
of the guarantees specified in the Construction Contract.

All replacements and corrections to defective work performed in connection with
construction of the Improvements and materials; or either, are to be done at the convenience of
the Venture.

The obligation of Contractor under this Agreement shall survive both final payment for
the work performed in connection with the construction of the Improvements or designated
portion thereof and termination of the Construction Contract.

2. Indemnification. The Contractor shall indemnifY, defend and hold harmless
Prudential and the Venture, their officers, agents and employees for from and against any an~ all
claims and demands, just or unjust, of third persons for death, for bodily injury, for personal
injury, for property damage, direct or consequential, or for breach of contract arising or alleged
to arise out of the construction of the Improvements and for all expenses incurred by them in the
defense, settlement or satisfaction thereof except to the extent such claims and demands result
from the intentional acts of Prudential or the Venture.

In any and all claims against Prudential or the Venture or any of their agents or
employees by any employee of the Contractor, any subcontractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable, the
indemnification obligation under this Agreement shall not be limited in any way by any
limitation on the amount or type of damages, compensation or benefits payable by or for the
Contractor or any subcontractor under workers' or workmen's. compensation acts, disability
benefit acts or other employee benefit acts.

If so directed by Prudential or the Venture, the Contractor shall at its own expense defend
any suit based upon any such claim or demand within the scope of the foregoing indemnity with
counsel reasonably acceptable to Prudential or the Venture, as applicable (even if such suit,
claim or demand is groundless, false or fraudulent).
FINAL Clayco IndemnitvJ.DOC
BANK OF AMERICA/PRUDENTIAL
LOAN PURCHASE AGREEMENT
~

R.P. Appx. 154 EXHIBIT A
 3. Assignment of Guarantees and Warranties. Contractor, as assignor, hereby
conditionally assigns, transfers and sets over to the Venture, as assignee, all of its right, title and
interest in and to all guarantees and warranties received by Contractor from subcontractors and
suppliers in connection with the construction of the Improvements. This assignment shall be
effective upon default by the Contractor under this Agreement or upon complete satisfaction of
the obligations of Contractor hereunder. Contractor shall not and has not taken any action or
done any thing which could limit the enforceability of such guarantees and warranties.

4. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of - - - -

5. No Assignment of Benefits Under this Agreement. Neither Prudential nor the
Venture may assign this Agreement or its rights under this Agreement. This Agreement shall
terminate as to both Prudential and the Venture upon any transfer by Prudential of its interest in
the Venture to other than an affiliate of Prudential.

[CONTRACTOR]

By: _ _ _ _ _ __:___ _ _ _ __
Name:
Its:
------------------------
-------------------------------

FINAL Cia yeo lndemnity3.DOC
BANK OF AMERICA/PRUDENTIAL
LOAN PURCHASE AGREEMENT
PAGE3

R.P. Appx. 155 EXHIBIT A
 FORM OF ARCHITECT'S CERTIFICATE

[LETTERHEAD OF ARCHITECT FOR THE PROJECT]

[Dated no later than 5 days prior to the Closing date]

The Prudential Insurance Company
of America
Prudential Real Estate Investors

Re: ____________________________________

Gentlemen:

We understand that you intend to acquire an interest in _ _ _ _ __
---------------------------------(the "Venture"), which Venture
acquired the real property in------------·---------------'
more particularly described in Exhibit A attached hereto (the "Land"), and
constructed an office building consisting of approximately net
rentable square feet, plus __ parking spaces (collectively, the "Improvements"),
pursuant to an Agreement To Acquire Joint Venture Interest, dated
_____________, 200_ (the "Commitment"). (The Land and
Improvements shall be referred to herein collectively as the "Project".)

We understand that the receipt by you of certain written certifications
from us is a condition precedent to your obligation to make a capital contribution to
the Venture and to acquire an interest in the Venture. Accordingly, we hereby certify
the following to the best of our lmowledge, information and belief:

1. We prepared the working drawings, a true and complete copy of which is
attached hereto as Exhibit B (the "Plans and Specifications"). The working drawings
describe the Improvements completely and accurately.

2. The Project lies in a district designated zoning
under the applicable zoning ordinances of the~---:----------------------'
The Project, if built and used in conformity with the Plans and Specifications, is in
full compliance with such zoning ordinances.

3. The Improvements contemplated by the Plans and Specifications are
permitted by and in conformance with all applicable building codes and regulations
and all other federal, state and local laws, rules and regulations relating to the
physical aspects of improvements to land.

R.P. Appx. 156 EXHIBIT A
 4. Based on our observation of the Improvements during their constmction
and at the time all certificates of occupancy were issued, (a) the Improvements as
actually built substantially conform to the Plans and Specifications, and comply with
all Federal, state and local laws, mles, and regulations relating to the physical aspects
of improvements to land, including, without limitation, those relating to zoning,
building and fire codes, of which we have been made aware by the owner, and
environmental laws, mles and regulations and (b) no amendment to the building
permits were required subsequent to[_ _ _----.~

5. The Project complies in all respects with the Americans with Disabilities
Act and allmles, regulations and guidelines promulgated in connection therewith.

6. The specified materials for the Project do not contain asbestos or
polychlorinated biphenyl (PCB) products or any other hazardous or toxic wastes or
substances in violation of applicable environmental laws.

7. The Project, if built in conformity with the Plans and Specifications, is in
substantial compliance with all conditions and requirements specifically relating to
constmction and development of the Project contained in the following documents:
[list of Private Development Covenants].

This letter is being delivered to you as a condition precedent to your
making a capital contribution to the Venture and acquiring an interest in the Venture.
We understand that you and the Venture are relying on this letter and that you or the
Venture may pursue a claim against us in the event that you or the Venture has any
loss or damage as a result of facts or circumstances that exist at the Project which
make any of our certifications incorrect or inaccurate. This letter does not constitute,
however, a guarantee of the work of the builder of the Improvements, and the builder
and its subcontractors are solely responsible for all construction means, methods,
techniques, sequences and procedures and compliance with the drawings,
specifications and contract documents.

Very tmly yours,

By________________________
Its
---------------------------
(Attachments)

R.P. Appx. 157 EXHIBIT A
 FORM OF ENGINEER'S CERTIFICATE

[LETTERHEAD OF PROJECT'S ON-SITE ENGINEER]

[Dated no later than 5 days prior to Second Closing date]

The Prudential Insurance Company
of America
Prudential Real Estate Investors

Re: _________________________________________

Gentlemen:

We understand that you intend to acquire an interest in - - - - - - - - - - - - - - -
------------------(the "Venture"), which Venture acquired the real property in_
----------------------------' more pcuiicularly described in Exhibit A
attached hereto (the "Land"), and constructed an office building consisting of approximately
__________ net rentable square feet, plus __ parking spaces (collectively, the
"Improvements"), pursuant to an Agreement To Acquire Joint Venture Interest, dated
- - - - - - - - - - - - - - - · ' 200_ (the "Commitment"). (The Land and Improvements
shall be referred to herein collectively as the "Project".)

We understand that the receipt by you of certain written certifications from us is a
condition precedent to your obligation to make a capital contribution to the Venture and to
acquire an interest in the Venture. Accordingly, we hereby certifY the following:

1. We are civil engineers licensed in the State of . We provided civil
engineering design and construction observation services for the Improvements. Our
involvement has included preparing civil engineering design plans dated (the
"Plans"). In connection with rendering the Plans, we performed such research and made such
investigations as we deemed appropriate in our professional judgment with respect to the Plans.
Our firm provided construction observation services during site preparation and grading prior to
beginning construction of buildings. In addition, we periodically observed the contractor's
progress and procedures during the preparation of the site and full course of construction.

2. We hereby represent to you that, in our professional opinion, based upon our
services rendered, the Project has been designed by this office in compliance with applicable
Federal, state and local approvals and design standards relating to the site improvements for the
land.

R.P. Appx. 158 EXHIBIT A
 3. We hereby represent to you that the following utilities are connected to the
Improvements and fully operational: . Such utilities
comprise all of the utilities which were designed by this office.

4. We have concluded that on the basis of our observations that the contractor
has completed the Project in substantial conformity with the "Plans and Specifications", attached
hereto as Exhibit B. Further, the work we observed was completed in a manner compatible with
the relevant aspects of the Land as we understood them at the time of design and in substantial
compliance with our recommendations.

This letter is being delivered to you as a condition precedent to your making a capital
contribution to the Venture and acquiring an interest in the Venture. We understand that you and
the Venture are relying on this letter and that you or the Venture may pursue a claim against us
in the event that you or the Venture has any loss or damage as a result of facts or circumstances
that exist at the Project which make any of our certifications inconect or inaccurate. This letter
does not constitute, however, a guarantee of the work of the builder of the Improvements.

Very truly yours,

By________________________
Its._ _ _ _ _ _ _ _ _ _ _ _ __

(Attachments)

R.P. Appx. 159 EXHIBIT A
 CONTRACTOR'S CONSENT AND AGREEMENT

The undersigned ("Contractor") acknowledges the assignment by Intellicenter Atlanta
Investments, LLP, a Delaware limited liability partnership ("Owner"), to Bank of America, N.A., a
national banking association, as administrative agent ("Administrative Agent") on behalf of the lenders
("Lenders") from time to time parties to the Loan Agreement (as herein defined), as additional security
for the obligations of Owner under a Construction Loan Agreement ("Loan Agreement") between Owner
(as Borrower), Administrative Agent and Lenders dated September 26, 2005, of Owner's rights (but not
Owner's obligations) under the Construction Contract and any future modifications thereof or change
orders ("Contract") between Owner and the Contractor pertaining to the pr~ject contemplated by the Loan
Agreement, such project to be located upon certain real property described on Exhibit "A" attached hereto
and made a part hereof (the "Property"). Contractor hereby consents to and agrees to be bound by such
assignment. Contractor further represents and warrants to and agrees with Administrative Agent and
Lenders as follows:

1. The copy of the Contract attached hereto as Exhibit "B" is a true, correct and complete
copy of the Contract, the Contract has not been changed or modified, and to Contractor's knowledge, the
Contract is in full force and effect.

2. If Owner defaults under the Loan Agreement or certain other Loan Documents (as
defined in the Loan Agreement), Lenders may elect by a specific request in writing to (i) have Contractor
continue performance under the Contract, in which case Contractor shall thereafter perform under the
Contract pursuant to the remainder of this Paragraph 2, or (ii) have Contractor stop work on the project
and vacate the Property, in which case Contractor shall promptly do so. If Lenders elect by specific
request in writing to have Contractor continue or recommence to perform work under the Contract,
Contractor shall continue or recommence performance on Lenders' behalf under the Contract in
accordance with the terms thereof, and Contractor shall be reimbursed in accordance with the Contract for
all work, labor and materials performed or furnished at Lender's request and prior to Lender's request;
provided that, (i) with respect to reimbursement for work, labor or materials prior to Lender's request,
Contractor has notified Administrative Agent in writing of the amounts owed Contractor and (ii) Lenders
shall not be required to pay any amounts for work, labor or materials for which Lenders have already
made an advance under the Loan Agreement . Contractor will look solely to the Owner for all sums
owing under the Contract which Lenders are not required to advance pursuant to this paragraph.
Contractor's agreement to act under the Contract for Lenders will not depend upon Contractor being paid
any sums which Lenders are not required to advance hereunder nor on whether the Owner has otherwise
defaulted under the Contract. Nor will Administrative Agent or Lenders be liable for any amounts owing
Contractor if Administrative Agent (on behalf of Lenders) requests Contractor to stop work and vacate
the Property pursuant to clause (ii) above. Neither Administrative Agent nor Lenders shall be liable for
any damages Contractor may be entitled to recover from Owner or for change orders made by Contractor
and not approved by Lenders pursuant to the Loan Agreement. In the event the Contract is terminated for
any reason, Contractor shall notifY Administrative Agent in writing within seven (7) days of such
termination. After such termination, Contractor shall, at Lenders' option, enter into a new contract with
Administrative Agent (on behalf of Lenders) upon substantially the same terms as the Contract.
"Lenders" as used in this Paragraph includes Lenders' successors or assigns, any receiver in possession of
the Property, any purchaser upon foreclosure of Lenders' security, or any corporation or other nominee
formed by or on Lenders' behalf (collectively "Lenders' Successors"). This Paragraph 2 shall not affect
the rights of Lenders or Lenders' Successors upon or following a foreclosure or transfer of title to the
Property.

CONTRACTOR'S CONSENT AND AGREEMENT (Intel/icenter Atlanta Investments, LLP) Page 1
4049692.1

R.P. Appx. 160 EXHIBIT A
 3. If Owner defaults in making any payment or in performing any other obligation under the
Contract, Contractor shall promptly give Administrative Agent written notice thereof, specifying the
default and the steps necessary to cure same; and if Contractor learns of any default in payment due any
subcontractor or other person supplying labor or materials for the project, Contractor shall similarly
advise the Administrative Agent thereof. Contractor will not exercise any remedy available under the
Contract, at law, or in equity arising from such default by Owner until Lenders shall have had the same
opportunity to cure such default to which Owner is entitled, but at least thirty (30) days in any event, if
Lenders so elect to cure such default, and such longer period of time as may be necessary to obtain
possession of, or title to, the Property, provided that Lenders shall have no obligation to cure any Owner
default. Any curative act done by Lenders shall be as effective as if done by Owner.

4. Contractor shall not perform work under any change order without first securing
Administrative Agent's written consent to such change order unless: (a) the Owner has certified to
Contractor that Lenders' consent is not required for such change order; and (b) the cost of or reduction
resulting from any single change or modification does not exceed $50,000, and the aggregate amount of
all such changes and modifications does not exceed $500,000. In any such case, Contractor shall
promptly provide Administrative Agent or its construction consultant with a copy of such change order or
other modification. Administrative Agent's consent shall not constitute any assumption by Administrative
Agent or Lenders of any obligation under the Contract. In addition, Contractor will not terminate, or in
any material respect, modify or amend, the Contract without the prior written consent of Administrative
Agent, provided that Contractor may terminate the Contract because of a default by Owner thereunder to
the extent Contractor has such right in the Contract, provided Contractor has first complied with
Paragraphs 2 and 3 above.

5. Contractor acknowledges that the plans (the "Plans") described in the Schedule attached
hereto were prepared by an architect on Contractor's staff or engaged by Contractor to prepare such Plans
(the "Architect). Contractor represents and warrants to Administrative Agent and Lenders that such
Architect is authorized to practice architecture under the laws of the State in which the Property is located
and is familiar with the federal, state, and local laws and ordinances relevant to the construction of the
improvements (the "Improvements") described in the Plans. Architect prepared all of the Plans, or such
Plans were prepared under its supervision and direction, and Architect is responsible therefor. To the best
of Contractor's knowledge, the Plans comply with all applicable laws, including all zoning, building, and
other pertinent statutes, ordinances, rules and regulations. The Plans were prepared in accordance with
customary professional standards of architectural practice for projects similar to the Improvements. The
Plans are complete and adequate for the construction of the Improvements, and there have been no
modifications thereof except as described on the attached Schedule. The Plans have been approved by all
applicable governmental authorities. To the best of Contractor's knowledge: (a) the Improvements, if
constructed in accordance with the Plans, will fully comply with all applicable laws, statutes, ordinances,
codes, rules, regulations, decrees and orders (including but not limited to those relating to access and
facilities for handicapped persons), applicable restrictive covenants and the site plan approved by
Administrative Agent; and (b) the structural design of the Improvements, the proposed method of
construction, the foundation plan, and the materials specified by the Plans for the project are adequate and
appropriate for the contemplated Improvements and for the soil conditions of the construction site.

6. Contractor hereby expressly subordinates all contractual, constitutional and statutory
mechanics' and materialmen's liens to which Contractor may be or become entitled, to all liens and
security interests securing the loan contemplated by the Loan Agreement (all indebtedness of Borrower,
Administrative Agent and Lenders evidenced by the Loan Agreement and related loan documents are
referred to herein as the "Secured Indebtedness") and expressly waives any right to remove any
removable improvements from the Property. Contractor hereby expressly waives any equitable lien upon
the loan funds to which Contractor might otherwise be entitled. Contractor acknowledges and agrees that,

CONTRACTOR'S CONSENT AND AGREEMENT (lnlel/icenter Atlanta Investmenls, LLP) Page2
4049692.1

R.P. Appx. 161 EXHIBIT A
foreclosure of the liens and security interests securing the loan contemplated by the Loan Agreement shall
be fully and automatically effective to cut off, terminate, and extinguish all of Contractor's liens and
claims of any kind against the Property (provided, that, such termination shall not affect any rights that
Contractor may have in any proceeds paid at any foreclosure of the Property in excess of the amount
necessary to pay the Secured Indebtedness in full). Contractor shall require all material subcontracts and
material purchase orders to contain a provision subordinating the subcontractors' and materialmen's liens
to the liens and security interests securing the loan contemplated by the Loan Agreement and expressly
waiving the right to remove removable improvements from the Property.

7. As of the date hereof, Contractor has no counterclaim, right of set-off, defense or like
right against Owner or Lenders, and to the best of Contractor's knowledge and belief, the Owner is not in
default under the terms ofthe Contract. Contractor is not in default under the terms of the Contract.

8. Nothing herein shall be construed to confer any present benefits on Contractor or to
create any contractual arrangement between Contractor and Administrative Agent or Lenders or to
impose upon Administrative Agent or Lenders any duty to see to the application of the proceeds of the
loan contemplated by the Loan Agreement or to give any notice of any type to Contractor. Contractor
acknowledges that Administrative Agent and Lenders are obligated under the Loan Agreement only to the
Owner and to no other person or entity. Contractor is executing this Contractor's Consent and Agreement
to induce Lenders to advance funds under the Loan Agreement, and Contractor understands that Lenders
would not do so but for Contractor's execution and delivery of this Contractor's Consent and Agreement.

9. Contractor shall provide Administrative Agent promptly in each case with (a) any
information Contractor may have regarding defects in workmanship or materials incorporated into or
provided for the project which come to Contractor's attention, (b) Contractor's estimate(s) of the stage(s)
of completion of the project, (c) any deviations or variations in construction of the prqject from the plans
and specifications used by Contractor, (d) any information Contractor may have regarding any defaults by
Owner, or any other contractor or subcontractor under any construction contracts, and (e) any claims of
non-payment by any person furnishing labor or material in connection with construction of the project.

10. This Contractor's Consent and Agreement shall bind and benefit Contractor,
Administrative Agent, Lenders and their respective successors and assigns, including Lenders'
Successors, their successors and assigns.

11. Any notice for purposes of this Contractor's Consent and Agreement shall be given in
writing and shall be addressed or delivered to the respective addresses set forth below, or to such other
address as may have been previously designated by the intended recipient by notice given in accordance
with this Section and shall be delivered by personal delivery, by nationally recognized overnight courier
service, by prepaid registered or certified United States mail (return receipt requested), or by facsimile.
The notice shall be deemed effective when the receipt is signed or when the attempted initial delivery is
refused or cannot be made because of a change of address of which the sending party has not been
notified; and if transmitted by facsimile or personal delivery, the notice shall be effective when received.
Until changed by notice given in accordance with this Section, the initial respective addresses for notices
are the following:

To Administrative
Agent and Lender: Bank of America, N.A.
901 Main Street, 21'1 Floor
Dallas, Texas 75202-3714
Attention: Real Estate Loan Administration
Fax No. 214.209.1832

CONTRACTOR'S CONSENT AND AGREEMENT (Intel/icenter Atlanta Investments, LLP) PageJ
4049692.1

R.P. Appx. 162 EXHIBIT A
 To Contractor:

Attention:
Fax No.
---------------------------
----------------------------
12. The provisions of this Contractor's Consent and Agreement cannot be waived, modified
or amended unless such waiver, modification or amendment is in writing and is executed on behalf of
each of Administrative Agent and Contractor.

13. Prior to the date hereof, no work of any kind, including the destruction or removal of any
existing improvements, site work, clearing, grubbing, draining or fencing of the Property, has been
commenced or performed on the Property and no equipment or materials have been delivered to the
Property for any purpose whatsoever.

14. Neither the Contract, nor any memorandum, affidavit or notice thereof, has been recorded
by or on behalf of Contractor in the county where the Property is located or in any other county. No
affidavit of commencement of construction of any improvements, performance of labor, furnishing of
materials, or providing of specially fabricated materials in connection with the construction contemplated
by the Contract has been executed or filed by Contractor in the county where the Property is located or in
any other county. Contractor will, however, join in the execution of such an affidavit once such work has
commenced in form and substance satisfactory to Administrative Agent.

15. Contractor will address to Administrative Agent, naming Administrative Agent as an
additional named party or beneficiary, all certificates, statements, or representations regarding the
completion of the project or any portion thereof.

16. THIS CONTRACTOR'S CONSENT AND AGREEMENT AND ITS VALIDITY,
ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY TEXAS LAW (W11HOUT
REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES
FEDERAL LAW.

CONTRACTOR'S CONSENT AND AGREEMENT (lntellicenter Atlanta Investments, LLP) Page4
4049692.1

R.P. Appx. 163 EXHIBIT A
 EXECUTED this _ _ day of _ _ _ _ _ _ _ _, 2005.

"CONTRACTOR"

By:
------------------------------------
Name:
Title:
---------------------------------
--------------------------------

CONTRACTOR'S CONSENT AND AGREEMENT{lntellicenter Atlanta Investments, LLP) Signature Page

R.P. Appx. 164 EXHIBIT A
 EXHIBIT A

LAND

CONTRACTOR'S CONSENT AND AGREEMENT(7ntellicenter Atlanta Investments, LLP) EXHIBIT A

R.P. Appx. 165 EXHIBIT A
 EXHIBITB

CONTRACT

CONTRACTOR'S CONSENT AND AGREEMENT(lntellicenter Atlanta Investments, LLP) EXHIBJTB

R.P. Appx. 166 EXHIBIT A
 SCHEDULE OF PLANS AND SPECIFICATIONS

Pr~ect: ________________________________________________________________________

Location: _________________________________________________________________________

Drawing No.
&Page Nos. Description

4049692v2

CONTRACTOR'S CONSENT AND AGREEMENT(lntellicenter Atlanta Investments, LLP) SCHEDULE

R.P. Appx. 167 EXHIBIT A
 FORM OF ARCHITECT'S CERTIFICATE

The Prudential Insurance Company ofAmerica

Prudential Real Estate Investors

Two Ravina Drive,- Suite 400

Atlanta, GA 30346

Attn: Mark W. Seedorff

Re: 370 I Regent Blvd., Irving TX

Gentlemen:

We understand that you intend to acquire an interest in Intellicenter Dallas
Investments, LLP, a Delawaie limited liability partnership (the ''Venture"), which Venture
acquired the real property in Irving, Texas, more particularly described in Exhibit A attached
hereto (lhe "Land"), and constructed an office building consisting of approximately 199,276 net
rentable square feet, plus 850 parking spaces (collectively, the "Improvements"), pursuant to an
Agreement To Acquire Interest, dated January 5, 2006 (the "Commitment"). (The Land and
Improvements shall be referred to herein collectively as the ''Project''.)

We understand that tbe receipt by you of certain written certifications from us is a
to
condition precedent to your obligation make a capital contribution to the Venture and to
acquire an interest in the Venture. Accordingly, we hereby certify the following:

ARCHITECTURE

1. We preparedcthe working drawings, a true and complete copy of which is attached
hereto as Exhibit B (the "Plans and Specifications"). The working drawings describe the
Improvements completely _and accurately.

2. The Project lies in a district designated FWY (Freeway) zoning under the applicable
zoning ordinance No. 4681, City of Irving Planning and Development Department. The Project,
if built and used in conformity with the Plans and Spe-Cifications, is in full compliance with such
zoning ordinances.

3. All Improvements contemplated by the Plans and Specifications are permitted by and
in conformance with all applicable building codes and regulations and all other federal, state and
local laws, rules and regulations relating to the physical aspects of improvements to !and.

4. Based on our observation of the Improvements during their construction and at the
time all certificates of occupancy were issued, (a) the Improvements as actually built substantially
conform to the Plans a,nd Specifications, and comply with all Federal, state and local laws, ·rules,
and regulations relating to the physical aspects of improvements to land, including. without
limitation, those relating to zoning, building and fire codes, of which we have been made aware

!855559.2

R.P. Appx. 168
 by the owner, and environmental laws, rules and regulations and (b) no amendment to the
building permits were required subsequent to April 26, 2006.

5, The Project complies in all respects with the Americans with Disabilities Act and all
rules, regulations and guidelines promulgated in connection therewith.

6. Intention~Hy deleted.

7. The specified materials for the Project do not contain asbestos or polychlorinated
biphenyl (PCB) products or any other hazardous or toxic wastes or substances in violation of
applicable environmental laws.

8. The Projec~ if built in conformity with the Plans and Specifications, is in substantial
compliance with all conditions and requirements specifically relating to construction and
development of the Project contained in the following documenls:
[None]

LANDSCAPE ARCIDTECTIJRE

l. The landscape architects are licensed in the State of Texas. They provided
landscape architecture design and construction observation services for the site improvements for
lhe Project. Their involvement included preparing landscape design plans, as noted on Exhibit B.
In connection with rendering such plans, they perfom1ed such research and made such
investigations as they deemed appropriate in their professional judgment with respect to such
plans. They provided limited construction observation services pursuant to our contract. In
addition, they periodically observed the contractor's progress a.nd procedures during the
preparation of the site and full course of construction.

2. In our professional opinion and based upon our services rendered, the Project's
landscape improvements (the "Site Improvements") have been designed in compliance with
applicable federal, stite and local approvals and design standards relating to the Site
Improvements.

3. . Further, the work was completed in a manner compatible with the relevant
aspects of the Land as understood by the landscap~ architects at the time of design and in
substantial compliance with their recommendations.

ENGINEERJNG

I. The civil engineers are licensed in the State of Texas. They provided civil
engineering design and construction observation services for the Improvements. Their
involvement has included preparing civil engineering design plans noted on Exhibit B. In
connection with rendering the Plans, they perfonned such research and made such investigations ·
as deemed appropriate in their professional judgment with respect to the Plans. They provided
construction observation sc;;rvices during site preparation and grading prior to beginning
construction of buildings. In addition, they periodically observed the contractor's progress and
procedures during the preparation of the site and full course of construction.

2. We hereby represent to you that, in our professional opinion, based upon our
services rendered, the Project has been designed with respect to the civil engineering aspects in

1855559.2

R.P. Appx. 169
 compliance with applicable Federal. state and local approvals and design standards relating to the
site improvements for the lim d.

3. We hereby represent to you tltat the following utilities are connected to the
Improvements and fully operational: water, electric, sanitary/sewer e.nd telephone. Such utilities
comprise all of the utilities which were designed by the civil engineers.

4. We have concluded that on the basis of our observations that the contractor
has completed the Project in substantial conformity with the Plans. Further, the work was
completed in a manner compatible with the relevant aspects of the Land as understood by the
civil engineers at the time of design and in substantial. compliance with their recommendations.

This letter is being delivered to you as a condition precedent to your making a capital
contribution to the Venture and acquiring an interest in the Venture. We understand that you and
the Venture are relying on this letter and that you or the Venture may pursue a claim against us in
the event that you or the Venture has any loss or damage as a result of facts or circumstances that
ex.ist at the Project which make any of our certifications incorrect or inaccurate. This letter does
not constitute, however, a guarantee of the work of the builder ofthe Improvements, and the
builder and its subcontractors are solely responsible for all construction means, methods,
techniques, sequences and procedures and compliance with the drawings, specifications and
contract documents.

Very truly yours,

fbn,wvt, ~eM Vht/. I

(Attachments)

EXHIBIT A
Land

EXHIBITB
Plans and Specifications ·

I 8S55S9.2

R.P. Appx. 170
 EXHIBIT A i
!
LEGAL DESCRIPTION OF THE LAND II"
i
BEING a 14.84 acre tract of land situated in the Jefferson Tilley Survey, Abstract No.
1474, City ofirving, Dallas County, Texas, and being pan of a tmct of land conveyed to
The Travelers Insurance Company by deed as recorded in Volume 9 I244. Page 4044 of
the Deed Records, Dallas County, Texas, and being more particularly described by metes 1
j
I
and bounds as follows: ).

COMMENCING at a 112 inch iron rod found at the new West line of Bcltline Road. said i
·I
point being the Northwest comer of a tract of land conveyed to the County of Dallas by I

deed recorded in Volume 91189, Page 2171, of the Deed Records of Dallas County, I
Texas, said point also being in the southerly line of Interstate Highway No. 635 (LBJ
f
Freeway, a variable width right-of-way):

THENCE North 71 degrees 07 minutes 55 seconds West, along the southerly line of said I
Interstate Highway No. 635 (LBJ Freeway), a distance of 518.07 feet to a 1/2 inch iron
rod found for comer;
I
TITENCE North 61 degrees 27 minutes 23 seconds West, continuing along the southerly 1-
1inc of said Interstate Highway No. 635 (LBJ Freeway) , a distance of 26.87 feet to a 1/2
inch iron rod found for comer, said point being the POINT OF BEGINNING, same poinl
being the Northwest comer of a tract of land conveyed to SMPD-TEXAS-lRVING-203,
LLC by deed as recorded in Volume 2003066, Page 01481, Deed Records, Dallas
County, Texas, said point al~o being the Northeast comer of said 14.83 acre tract of land
being described;

THENCE South 28 degrees 32 minutes 37 seconds West, departing the southerly line of
said Interstate Highway No. 635 (LBJ Freeway) and along the common line of srud
SMPD-TEXAS-IRVING·203, LLC tract and said 14.83 acre tract of land being
described, a distance of 775.69 feet to a 112 inch iron rod set for comer, said point being
in the northeasterly line of Regent Boulevard (a variable width right-of-way) according to
the plat thereof recorded in Volume 85244, Page 3298, Map Records, Dallas County,
Texas, said point being the Southeast comer of said 14.83 acre tract of land being
described, said point also being the Southwest corner of a tract of land conveyed lo
SECOND CENTURY INVESTMENTS by deed as recorded in Volume 2003066, Page
01466, Deed Records, Dallas County, Texas, same point being the beginning of a curve
to the right having a radius of900.00 feet a delta angle of22 degrees 59 minutes 22
seconds, and a chord hearing and distance of North 56 degrees 37 minutes 34 seconds
West, 358.70 feet;

THENCE in a northwesterly direction continuing along the said curve to the right an arc
distance of361.12 feet and 10 a 112 inch iron rod found for corner;

THENCE North 45 degrees 07 minutes 53 seconds West, continuing along the
northeasterly line of said Regent Boulevard, a distance of I 19.07 feeL to a 112 inch iron

Exhibrt A-Legal Description of th_e Land Page1
Dallas 1270791_2 5554.38 •

R.P. Appx. 171
 ·I
I.
I
I
I
rod found for ~;orner. said point being the beginning of a curve to me right having .a radiu."i l
of 607.74 fee[ a delta angle of 40 degree.'> 07 minute~ 46 second.t;, ~nd a chord hearing and 'j•
distance of Nolih 25 degrees 04 minutes 00 second::: v,:esl, 417.01 feel; '

11-JENCE in a northweslerly direction continuing along [he said curve to the righl an arc
t.
r
distance of 425.66 feet and to a 112 inch iron rod found for corner: !
l
THENCE North 05 degrees 00 minutes 07 seconds West, continuing along the
northea.o.:lerly line of !>aid Regenr Boulevard, a distance of 337.64 feet to a 1/2 inch iron
rod found for corner, said point being the beginning of a curve to the left having a radius
of70g_50 feet a de1ta angle of34 degrees: 03 minutes 09 seconds, and a chord be3fing and
di~ 1/2612007
I
I
M3.02 Partial Second Floor Plans - Mechanical 1126/2007

M3.03 Partial Third Floor Plans- Mechanical 112&2007 I
M3.04 Partlel Fourth Floor Plans - Mechanical 1/2612007

M4.02 Mechanical Details 1/26l2007

Plumbing
·I.
I
P2.01 Partial Underfloor Plan- Plumbing 1/26/2007

P2.02 Partial Underfloor Plan· Plumbing 1/26/2007

P2.11 Partlal First Floor Plan • Plumbing 1/2612007

P2.12 Partial FirSt Floor Plan- Plumbing 112612007

P2.21 Partial Second Floor Plan- Plumbing 112612007

P2.22 Partial Second Floor Plan· Plumbing 112612007

P2.31 Partial Third Floor Plan· Plumbing 1/2612007

P2.32 Partial Third Aoor Plan· Plumbing 1!26/2007

P2.41 Partial r=:ourth Floor Plan • Plumbing 112612007

P2.42 Partial Fourth FIOOl' Plan- Plumbing 1/26/2007

P3.01 Partlal Enlarged Plans- Plumbing 1/26/2007

P3.02 Partial Enlarged Plans -'Plumbing 1/2612007

P4.01 Plumbing Riser Dlagmms 112812007

5

R.P. Appx. 177
Electrical
E1.01 SHe PJan EJectrlca:J 319/2007

E2.11 Firs! Floor Plan Elec\rical 3/912.007 1I
E2.12 Partial First Roor Plan Electrical 31912007
!
1-
E2.21 Partial Second Floor Plan Electrfcal 3/912007 I"
I.
E2.22 Partlal Second Floor PI an Electrical . 3/912007 I

E2.31 Pe.rtial1111rd Roor Plan Electrlcal 319/2007

E2.32 Partial Third F109r Plan Electrical 31912007

E2.41 Partllll Fourth Floor Plan Eleclrical 3/912007

E2.42 Partial Fourth Roor Plan Electrical 31912007
E4.01 Single Una Electric:al 319/2007
E4.02 Details Electrical 3/9/2007

E4.03 De\ails Electrical 319/2007

ES.01 Electrical Sch&dules 31912007

ES.02 Electrical Schedules 31912007
E5.03 Electrical Schedules 31912007

E5.04 Electrical Schedules 31912007
E5.05 Electrical Schedules 31912007

ES.06 Ugh\ing FIXtUre Schedule 319/2007

EL.2.11 Partial Firs! Floor Plan UghUng 31912007

EL.2.12 Partial Frrst Aoor Plan Ughting 31912007

EL2.21 Partial Second Floor PJan Ughtlng 319/2007

El2.22 Partial Second Floor Plan Ughtlng 3f912007

EL2.31 Partial Third Floor Plan Ughting 31912007

El2.32 Partial Third Floor PlanJ,.Ighting 31Sl2007

EL2.41 Partial Fourth Floor Plan UghUng 3/S/2007

El.2.42 Partial Fourth Floor Plan Ughtlng 31912007

Landscape & Irrigation

LC1.1 General Notes & MataJials Schedule 4116106

LS 1.1 Overall LBndscape Sitewoli< Plan 4118106

LS 1.2 Sitewor1< & Paving Enlargements 4118106

L$2.1 Srtework Datalls 4118f06

LP 1.1 Planting Plan 4118100

LP 1.2 Planting Entry Enlargement 4118106

LP 1.3 Planllng Entry Enlargement 411at06

LP2.1 Planling DelaDs 4118106

ll1.1 Overall Landscape lrrrigation Plan 4/1&06

6

R.P. Appx. 178
R.P. Appx. 179
052.10 Steel Jolsts 1012112005 6 Pages

05310 Steel Peel< 1012112005 2Pages l
I

7 Pages
l
05500 Metal Fabi!calions 1012112005 i
:j.
05511 Metal Stairs 1012112005 8Pages

10121/2005 8 Pages
!·!.
05521 Pipe and Tube Rallfr~g
i
05811 ArchiteciUral Joint System 10121/2005 6 PagtJs i
I
[.
06100 Rough carpentry 10121/2005 5 Pages t
06402

07170
Interior Archlteclural Woodwori<:

Bentonite waterproofing
10121/2005

1012112005
S Pages

5 Pages
l
07210 BulldlllQ Insulation 1012112005 7 Pages

07412 Metal Wall Panels 1012112005 9 Pages

07540 Thermoplastic Membr.ma Roofing 10121/2005 6 Pages

07620 Sheet Metal Aashing and Trim 10121/2005 5 Pages

07720 Roof Accessories at22/2006 3 Pages

07811 Sprayed Rre- Resistive Materials 1QI2112005 5 Pages

07842 Flre Resistive Joint Systems 10/2112005 4Pages

0792.0

08110
Jolnt Sealants

Steel Doors and Frames
2/27/2006

10121/2005
7 Pages

5Pages
II
08125 Interior Aluminum Frames 1012112005 4 Pages I
082.11 Flush Wood Doors 10121/2005 4Pages ·I:
08311 Access Doors 10/2112005 5 Pages

08331 Ovemead Colling Doors 10/21/2005 4 Pages

08410 Aluminum Enhances and Storefronts 10121/2005 10 Pages

08470 Ravolving Entrance Doors 10/2112005 7 Pages

0862.0 Unit Skylights 1012112005 3 Pages

08710 Door Han:lware 6/1:Y2006 18 Pages

08711 Door Schedule 612212006 7 Pages

08800 Glass & Glazing 1012112005 7 Pages

08830 Mirrors 10121/2005 5 Pages

08911 Glazed Aluminum Curtain Wall 10121/2005 9 Pag99

09000 Material Legend 6/22/2006 2 Pages

092.53 Gypsum Sheathing 10/21.12005 3 Pages

09280 Gypsum Board Assemblies 10121/2005 14 Pages

8

J-

R.P. Appx. 180
09265 Gypsum Boartl Shatt-Wall Assemblies 10/21/2.005 5Pages

09310 Ceramic Tile 10/2112.005 7 Pages

09402 EpoxyTerrazo 10121/2005 5 Pages

09514 Acoustlcal Pan Ceilings 1012112005 4 Pages

09653 Resilient Wall Base 10121/2005 4 Pages

09671 Resinous Flooring 10127/2005 6 Pages

09861 Cwpetlile 1012112005 3 Pages

09912 Painting 10/21/2005 9 Pages

09950 Wall Covering 9/112006 2 Pages

09970 Special Wall Surfaces(Flberglass Reinforced Plastic Panels) 1012112005 4 Pages

09980 Special Coatings lor Concrete Surfaces 612212006 6Pages

10155 Toilet Compartments 712812006 2Pages

10270 Access Roofing 10121/2005 6 Pages

10520 Flre Protection Specialties 10/2.1/2005 5 Pages

10801 Toilet and Bath Accessories 612212006 2Pages I.
11160 Loading Dock Equipment 10121/2005 5Pages !

12491 Horizontal Blinds 1012112005 3 Pages

14240 Hydroullc Elevators 2127/2006 SPages

15010 Basic Mechanical Requirements 1/1912006 4 Pages

15071 Mechan[cal\libratlon Controls 1/19/2006 4 Pages

15075 MechanlcalldentiHcatlon 1/19/2006 4 Pages I,.
15081 Ducllnsu~tlon 1/1912006 B Pages

15083 Pipe lnsu~Uon 1/1912006 10 Pages

15100 Valves 1/19r.!006 B Pages

15135 Moten;; and Gages 1/19/2006 4 Pages

15140 Hangers and Supports 1/1912006 4 Pages

15300 Rre Suppression Plping 1/19/2006 14 Pages

15411 Water Distribution Piping 1/19/2006 8 Pages

15420 Drainage and Vent Systems 1/19/2006 7 Pages

15440 Plumbing FIXtUres 1/19/2006 4 Pages

15453 Plumbing Pumps 1{19/2006 4 Pages

15460 Water Heaters 1119/2000 3 Pages

9

R.P. Appx. 181
15730 Section Packaged Rooftop Air Condltionlng Units 1/1912006 10 Pages

15838 Power Ventilators and Exhaust Fans 1/1912006 7Pagas

15883 Variable Frequency Drives 1/1912006 5Pagas l
15891 Melal DuelS 1/1912006 BPages I
- j·
I
15910 Duct Accessoiies - 1/19/2006 6Pagas

15932 Air OuUets and Inlets 1/f9/2006 3Pages

15933 Air Terminals 1/1912.000 4Pages
1-
15970 Automatic COntrols 1317/2006 32 Pages

15990 Testing, Adjusting, and Balancing 1/1912006 7 Pages

15995 Commissioning 1/1912006 5 Pages

16010 Basic Electrical Requirements 1/1912006 4 Pages

16110 Raceways 111912006 sPeges

16120 Wires and Cables 1/1912006 3Pages

16135 Cablnels, Boxes, and Flttlngs 1/1912006 5 Pages

16143 Wiring Devices 111912006 4Pages

16170 Circuit and Motor Disconnect Switches 1/19/2006 2Pages

16190 Circuit and Motor DisconnBCI Switches 1119/2006 4 Pages

16195 Electricalldentificallon 1/19/2006 3 Pages

16420 Service Entrance 1/1912006 4Pages

16425 Switchboards 1119/2006 6 Pages

16452 Groundlng 1/1912006 5 Pages

16460 Transformers 1/19/2006 3 Pages

16470 Panelboards 1/19/2006 4 Pages

16471 Tf'!lllslent Voltage Surge Suppressors 1/1912006 4Pages

16475 Overrurrent Protective Devices 1/19/2006 5 Pages

16481 Motor Controllers 1/1912006 4 Pages

16515 Ughtlng 1/19/2006 6 Pages

16670 Ughtnlng Prolaction Systems 1/1912006 3f'ages

16721 Fire Alarm Systems 1/1912006 7 Pages

10

R.P. Appx. 182
 ~ """f MUNSCH HARDT 3$00 Lincoln Pla<:3
500 N, Akard Street
)._ ..... KOPF & HARR PC Dallas, Texas 75201-6659
Main 214.855.7500
ATTORNEYS & COUNSELORS
!"ax 214.855.7584
DALLAS I HOUSTON jAUSTtN munsch.com

Oirect Diai214.855.75S9
Direct Fax 214.978. 4378
gooschese@munsch.com

September 13, 2013

Clayco, Inc.
Attn: Tom Sieckhaus
2199 lnnerbelt Business Center Drive
St. Louis, MO 63114

RE: Agreement between Owner and Contractor dated May 19, 2006 ("Contracn, by and
between lntellicenter Dallas Investments LLP ("Owner''), and Clayco, Inc.
{"Contractor"), for the design and construction of a four story office building consisting
of approximately 211,637 gross square feet located at 3701 Regent Boulevard, Irving,
Texas ("Project").

Dear Mr. Sieckhaus:

This law firm serves as litigation counsel to Owner. As Owner previously advised by email and
a phone call to Contractor's authorized representative, Owner recently discovered shear cracks in the
tilt wall panels at the Project. Owner retained a structural engineer to evaluate the cause of the
cracks, and, after investigating the cracks, the engineer concluded that the cracking occurred because
of insufficient shear friction reinforcing above the openings. Additfonally, the engineer noted the
flextural reinforcing appears to be inadequate below the girders along the east and west ends of the
building. Project was not designed pursuant to applicable codes and that the design failed to comply
with the requirements of the Contract's construction documents. I am enclosing a copy of the
engineer's report for your review.

Pursuant to its rights and remedies under the Contract and applicable law, Owner is hereby
demanding Contractor complete, repair and/or replace the recently discovered incomplete and/or
defective work immediately. To the extent Contractor requires access to the Project, please contact
Mike Rosamond, 8115 Preston Road, Suite 700, Dallas, Texas 75225; Phone: 214 696 7826 (Direct);
214 957 6075 (Cell); email: mike.rosamond@kdc.com.

Additionally, under the Contract, Contractor was required to secure errors and omissions
policies for the design professionals which named Owner as an additional insured. Please provide the
Certificates of Insurance to Owner upon receipt of this letter so that proper notification can be made
under the terms of those policies.

Please be advised that Owner's investigation rs ongoing and that Owner may discover
additional errors and omissions and incomplete failures to comply with the terms of the Contract.
Nothing in this letter is intended to limit or waive or estop Owner from asserting its legal rights or
remedies and any and all rights and remedies are herein reserved.

To the extent that you would Hke to discuss this matter in further detail, please don't hesitate to
contact me.

MHDocs 4694265_1 5554.38
R.P. Appx. 183
Clayco, Inc.
Attn: Tom Sieckhaus
September 16, 2013

Sincerely,

Greg Noschese
GCN:Id

c: Ron Rolfes (via email)
Scott Ozymy (via email)
Mike Rosamond (via email)
David CoBgado (via email)
Amy Altshuler (via email)
Ben Ochoa (via email)
Justin Chapman (via email)

MHOocs 4$94265_1 5554.38
R.P. Appx. 184
 MCHALE ENGINEERING, INC.
2000 AVENUE G SUITE 800 PLANO, TEXAS 75074
(972) 423-$908 FAX {972) 424-8100

September 10,2013

Mr. Mike Rosamond
KDC Real Estate Development and Investment
8115 Preston Road, Suite 700
Dallas, TX 75225

Re: lntelllcenter Dallas
3701 Regent Boulevard
Irving, TX

Dear Mr. Rosamond:

Per the request of James Williams, the exterior tilt*wall panels at the referenced project were reviewed on
August 29, 2013. The review was strictly visual and was limited to the exterior tilt-wall panels. The purpose
of this review was to provide a general assessment of the reported cracks in the tilt-wall panels. A review of
the construction documents for the building was also conducted.

The following documents were made available for review.

1. Geotechnical report prepared by Reed Engineering, Report Number 12567, dated September 9, 2005.

2. Structural drawings prepared by Alper Aud!, Inc., Record Drawings dated 3~26-07.

The project consists of a four story office building. The exterior facade consists of load bearing concrete tilt-
wall panels. The roof is framed with steel joists and beams. The first, second, third and fourth floors are
framed with composite steel beams with a steel deck and concrete slab. The exterior tilt-wan panels and
interior columns are supported on auger excavated reinforced concrete piers bearing in a deeper shale
stratum. The project is estimated to be approximately five (5) years old. The building is assumed to face
south.

Observations

The tilt-walls panels span four stories high. Each of the thirty (30'.. 0) foot wide panels has two ten (10'..0) feet
wide openings at each floor. The floor purlins are connected to the panels along the north and south sides
of the building. The main ftoor girders connect to the tilt~wall panels along the east and west sides of the
building. Most of the beam connections occur just above an opening.

Cracks were found in the tilt-wan panels along the north and south sides of the building. These cracks occur
below the windows at the first flo'Or, second, third and fourth floors. The cracks generally appear to align with
the location of the floor purlins. Cracks can also be found along the east and wests ides of the building near
the location where the girders connect to the tilt wall panels. The cracks vary from hairline to 1/16" in width.
Some evidence of previously repaired cracks was noted.

No evidence of foundation movement was found In the tilt-wall panels. No separation of the panel joints was
noted, which is usuaUy an Indication offoundation movement. No significant deflection ofthe tilt~wall panels
was noted.

R.P. Appx. 185
 September 101 2013 Page 2

Mr. Mike Rosamond
KDC Real Estate Investment and Development

tntellicenter Dallas
3701 Regent Boulevard
Irving, TX

A review ofthe design ofthe tiltMwall panels was performed based on the 2000 International Building Code,
American Concrete Institute· "Building Code Requirements for Structural Concrete 318-02" and ASCE -7
"Minimum Design Loads for Buildings and Other Structures". The International Building Code was referenced
on Record Drawing Sheet S1..01 as the code standard. The deslgn floor loads were indicated on the Record
Drawings as a total Dead Load of80 pounds per square foot and total Live Load of 100 pounds per square
foot The review of the design of the panels was based on these loads.

The record drawings specify the panel reinforcing on Sheets T4-11 and T4-12. The drawings indicate that 1-#5
were to be installed above and below each opening on each face of the panel. This appears to be typical
reinforcing for all of the panels. At locations were the floor purlins and girders are connected to the panel
above the openings, it does not appear to be adequate to meet the requirements ACI318 Section 11.7 for shear
friction reinforcing. This condition is particularly acute below the first floor where the bottom of the beam
connection occurs just 1'·7 above the bottom of the panel. At the second, third and fourth floors, the bottom
ofthe beam connection occurs 1'-11 above the bottom of the panel. However, at all locations where the purlin
or girder are located above the openings there does not appear to be sufficient shear friction reinforcing. In
addition, there does not appear to be sufficient flexural reinforcing below the girder connections on the east
and west ends of the building at the locations where the girders connect to the panels above the windows.

In my opinion, the cracking that occurs in the tilt-wall panels occurs because of insufficient shear friction
reinforcing above the openings. In addition, the flexural reinforcing appears to be inadequate below the
girders along the east and west ends ofthe building. Further investigation may reveal other areas of concern
after additional information is provided.

This concludes this report, if I can be of any further assistance or if there should be any questions, please
do not hesitate to call. This report is based on the observed conditions on this date, which are subject to
change.

Sincerely,
MCHALE ENGINEERING, INC.

Gary B. McHale, P.E.

Attachments: Photographs

R.P. Appx. 186
 Photograph Number 1 ~ Typical Panel Cracking Along North Side

Photograph Number 2 • Typical Panel Cracking Along North Side

R.P. Appx. 187
 Photograph Number 3 • Typical Panel Cracking Along North Side

Photograph Number 4 ·Typical Panel Cracking Along North Side

R.P. Appx. 188
 Photograph Number 5 w Typical Panel Cracking Along North Side

Photograph Number 6 • Typical Panel Cracking Along North Side

R.P. Appx. 189
 Photograph Number 7 - Typical Panel Cracking Along West Side

Photograph Number 8 ~Previously Repaired Crack Along North Side

R.P. Appx. 190
 Photograph Number 9 ·Typical Panel Cracking Along South Side

Photograph Number 10 ·Typical Panel Cracking Along North Side

R.P. Appx. 191
 AMERICAN ARBITRATION ASSOCIATION
Construction Industry Arbitration

INTELLICENTER DALLAS )
INVESTMENTS LP, )
) Case Number: 01-14-0001-0249
Claimant, )
)
v. )
)
CLAYCO, INC., et al. )
)
Respondents. )

RES.PONDENTS' OBJECTION , RESERVATION OF RIGHTS ND,
SUBJECT TO AND WITHOUT WAIVER OF THE
THEIR ANSWERING STATEMENT

Respondents Clayco, Inc. ("Clayco") and FS Architecture ("FS") (Clayco and FS are

hereinafter collectively referred to as "Respondents") submit their Objections, Reservation of

Rights and, Subject to and without Waiver of the Same, their Answering Statement, and state as

follows:

RE PONDENTS' OBJECTIONS AND RESERVATION OF RIGHTS

Respondents affirmatively asserted their respective rights to seek the dismissal of

Claimant Intellicenter Dallas Investments LP's arbitration complaint/demand (the "Demand"),

pursuant to§ 150.002(e), TEX. C!v. PRAC. & REM. CODE, in the 160th Judicial District Court of

Dallas County, Texas, Cause No. DC-15-02018 (the "Lawsuit"). Section 150.002(d) expressly

excuses a defendant (in a judicial or arbitration proceeding) who seeks dismissal pursuant to §

150.002(e) from filing an answer to a complaint against it, and by implication (if not expressly),

it further excuses such a defendant from participating in litigation on the merits of such a

complaint until the § 150.002 dismissal issue is resolved, and all expressly authorized

interlocutory appeals, under§ 150.002(f) have been fully exhausted.

R.P. Appx. 192
 Because Respondents affirmatively exercised their statutory rights to seek dismissal of

the Demand, which is their response to the Demand, Respondents object to the imposition by the

American Arbitration Association of a deadline for filing an answer to the Demand because they

are statutorily excused from doing so. Respondents also object to the imposition of any other

deadlines that advance the litigation of the Demand, on the merits, prior to a final disposition of

the § 150.002 dismissal request, by appeal or otherwise.

Subject to the above-stated objections and without waiver of the same, Respondents'

following Answering Statement, including their assertion of denials and affirmative defenses to

Claimant's Demand, are expressly subject to a full reservation of rights with respect to

Respondent's position ("Reservation of Rights") that the American Arbitration Association

("AAA") may not take any further action in this matter during the pendency of the lawsuit

commenced by Respondents in the Lawsuit, in particular prior to the final disposition of their §

150.002(e) dismissal request, via final appeal, unless and until expressly ordered to do so by a

court. Specifically, while the Lawsuit is pending, the AAA has no authority to act with respect

to this matter in any manner whatsoever, while Respondents affirmatively seek a dismissal order

from the Court in the Lawsuit pursuant to§ 150.002(e), while relying on their statutory rights not

to file an answer to the Demand, under § 150.002(d). The basis for the relief sought by

Respondents in the Lawsuit is Claimant's undisputed failure to comply with the requirements of

§ 150.002(a) and (b), which is a statutory, substantive condition precedent to Claimant's

purported right to arbitrate the claims that are stated in the Demand, or to seek any damages,

losses, or other relief associated therewith.

As a result of the Lawsuit and pursuant to§§ 150.002(d) and (e), this matter should be

deemed stayed pending: (a) the final resolution of the Lawsuit, including appeals, interlocutory

2
R.P. Appx. 193
or otherwise; and/or (b) the Court's issuance of any interim orders expressly directing the AAA

to take further action in this arbitration.

Subject to the Objections and full Reservation of Rights asserted herein above, and for

the sole purpose of preserving their rights and defenses in connection with this arbitration (in the

event that this arbitration is ordered to proceed), and to avoid any waiver or default, Respondents

submit the following Answering Statement and Affirmative Defenses to Claimant's Demand.

RESPONDENTS' ANSWERING STATEMENT TO CLAIMANT'S DEMAND

Subject to the foregoing Objections and Reservations of Rights and their pending Motion

to Dismiss under Section 150.002, in the Lawsuit, Respondents, for their Answering Statement

to Claimant's Demand, state as follows:

1. Claimant's Demand is so vague and ambiguous that Respondents cannot properly

prepare a response or prepare for an arbitration hearing, and thus, Claimant should be required to

restate the allegations, claims, damages, losses, and all relief sought in the Demand with more

specificity.

2. Respondents generally deny each of the allegations and claims asserted in the

Demand. Furthermore, Respondents also generally deny any liability to Claimant for any of the

damages, losses, or other items sought in the Demand. Finally, Respondents generally deny that

Claimant is entitled to any of the relief sought in the Demand.

WHEREFORE, subject to and without waiver of their Objections and Reservations of

Rights and their pending Motion to Dismiss in the Lawsuit, having answered and generally

denied Claimant's Demand, Respondents request that Claimant's Demand be denied and/or that

the arbitrator(s) enter an award in favor of Respondents and against Claimant; Respondents also

request that the arbitrator(s) grant Respondents their costs and expenses, including reasonable

3
R.P. Appx. 194
attorneys' fees, incurred herein; Respondents further request any other and further relief deemed

just and proper.

RESPONDENTS' AFFIRMATIVE DEFENSES TO CLAIMANT'S DEMAND

Subject to the foregoing Objections and Reservations of Rights and their pending Motion

to Dismiss in the Lawsuit, Respondents, for their Affirmative Defenses to Claimant's Demand,

state as follows:

1. Claimant's Demand is so vague and ambiguous that Respondents cannot properly

prepare a response or prepare for the arbitration hearing, and thus, Claimant should be required

to restate the allegations, claims, damages, losses, and all relief sought in the Demand with more

specificity.

2. Claimant's Demand fails to state a cause of action upon which relief can be

granted.

3. Claimant's Demand is barred by Claimant's failure to comply with or satisfy

conditions precedent to its right to arbitrate the claims in its Demand, where such failure

constitutes a waiver of any contractual right to arbitrate, or the legal non-existence of an

agreement to arbitrate such claims.

4. In the event it is judicially determined that the § 150.002 dismissal motion now

pending in the Lawsuit is an arbitrable question, and only in such event, Claimant's Demand

fails to comply with§ 150.002, TEX. C!V. PRAC. & REM. CODE, titled "Certificate of Merit," and,

therefore, must be dismissed. Section 150.002 mandates that "in any action or arbitration

proceeding in Texas for damages arising out ofthe provision of professional services by a

licensed or registered professional, the plaintiff shall be required to file with the complaint an

affidavit of a third-party licensed architect, licensed professional engineer ... ," meeting the

4
R.P. Appx. 195
qualifications set forth in§ 152.002(a)(l)-(3). The mandatory affidavit "shall set forth,

specifically for each theory of recovery for which damages are sought, the negligence, if any, or

other action, error, or omission of the licensed or registered professional in providing the

professional service, including any error or omission in providing advice, judgment, opinion, or a

similar professional skill claimed to exist, and the factual basis for each such claim." §

150.002(b), TEX. Crv. PRAC. & REM. CODE. Claimant did not file any certificate of merit, let

alone one that complies with the requirements of§ 150.002(a) and (b), with the Arbitration

Complaint. Section 150.002(e), TEX. Crv. PRAC. & REM. CODE mandates that a claimant's

failure to file the affidavit(s) required under§§ 150.002(a) and (b) (commonly known as a

"certificate of merit"), in accordance with § 150.002, shall result in the dismissal of the

arbitration complaint against the defendant(s), and the dismissal may be with prejudice.

5. Each of Claimant's claims are time barred under§§ 16.003 and 16.004, TEX. Clv.

PRAC. & REM. CODE (and/or any other applicable limitations periods) in that Claimant's claims

were filed more than two or four years (as appropriate) after Claimant's claims arose and/or

accrued, including any tolling periods that may apply. Specifically, Claimant discovered, or

should have discovered, the physical manifestations of the alleged design and/or construction

defects in subject property that caused the alleged losses and/or damages sought in the Demand

more than two or four years (as appropriate) before Claimant filed its Demand, including any

tolling periods that may apply. Furthermore, regardless of when Claimant may have actually

discovered the physical manifestations of the alleged design and/or construction defects in the

subject property, Claimant's claims with respect thereto arose and/or accrued upon substantial

completion of the subject property, which occurred on or about March 6, 2007, pursuant to Sub-

section 13.7.1(.1) ofthe General Conditions to Claimant's written contract with Clayco, which

5
R.P. Appx. 196
governs the commencement of any applicable statutory limitations periods, and provides as

follows with respect to any acts or failures to act occurring prior to substantial completion of the

subject property: "[A]ny applicable statute of limitations shall commence to run and any alleged

cause of action shall be deemed to have accrued in any and all events not later than such date of

Substantial Completion." Therefore, each of Claimant's claims with respect to any alleged

design and/or construction defects are time-barred, where said claims were not filed within two

or four years (as appropriate) of substantial completion ofthe subject property, which occurred

on or about March 6, 2007.

6. Claimant is estopped to enforce any contracts or agreements with Respondents

upon which it may seek damages, losses, or other relief.

7. Claimant has waived its right to enforce any contracts or agreements with

Respondents upon which it may seek damages, losses, or other relief.

8. Claimant's alleged damages and/or losses, if any (which Respondents expressly

deny), should be barred and/or reduced because Claimant has failed to mitigate its alleged

damages and/or losses, including but not limited to Claimant's performance of unnecessary and

destructive "repairs" on the building. Said "repairs" caused or contributed to Claimant's alleged

damages. In addition, Claimant's failure to perform necessary maintenance and/or other upkeep

on the portions of the property that are the subject of Claimant's claims substantially contributed

to Claimant's alleged damages and/or losses.

9. To the extent, if any, that Respondents may be found liable to Claimant for any of

the damages and/or losses sought in the Demand (which liability Respondents expressly deny),

Respondents are entitled to deductions, credits, and/or setoffs for, among other things, the

depreciation of the subject property since substantial completion thereof.

6
R.P. Appx. 197
 10. Claimant's breach of implied warranty claim is barred by virtue of Clayco' s

express written disclaimer of any and all express or implied warranties in connection with the

subject property, which disclaimer is contained in the General Conditions of Claimant's written

contract with Clayco.

11. Claimant's losses and/or damages, if any (which Respondents expressly deny),

are the result of Claimant's comparative negligence, which is sufficient to bar or proportionately

reduce any recovery by Claimant under applicable law.

12. Claimant's losses and/or damages, if any (which Respondents expressly deny),

are the result of actions of third parties over whom Respondents had no control or right to

control.

13. Claimant's recovery, if any, must be reduced by any amounts received from any

collateral sources pursuant to applicable law.

14. Respondents hereby incorporate by reference any other and further affirmative

defenses identified or made known through the course of discovery in this matter, and expressly

reserve the right to so amend their affirmative defenses.

BLITZ, BARDGETT & DEUTSCH, L.C.

By:.____~~~~~~~--------
, Mi . ouri Bar #45340
Douglas A. tockenberg, Missouri Bar #57865
120 S. Central Ave., Ste. 1650
St. Louis, MO 63105
(314) 863-1500
(314) 863-1877 (facsimile)
rta e1 bdlc.com
dstockenberg@bbdlc.com
Attorneys for Respondents Clayco, Inc.
and FS Architecture, PC

7
R.P. Appx. 198
 CERTIFICATE OF SERVICE

I hereby certify that on the /~day of March, 2015, a true and accurate copy of the
foregoing document was filed with the American Arbitration Association and served upon the
following parties of record as follows:

Erika G. Kleinschmidt
Director of ADR Services
American Arbitration Association
Central Case Management Center
13727 Noel Road, Suite 700
Dallas, TX 75240
Via e-mail to: ErikaKleinschmidt@adr.org

Gregory C. Noschese
Munsch Hardt Kopf & Harr, PC
500 North Akard Street, Suite 3800
Dallas, TX 75201-6659
Via e-mail to: gnoschese@munsch.com
Attorney for Claimant Intellicenter
Dallas Investments LP

8
R.P. Appx. 199
 AMERICAN ARBITRATION ASSOCIATION
Construction Industry Arbitration

INTELLICENTER DALLAS §
INVESTMENTS, LP, §
§
Claimant, §
§
§
v. § Case Number: 01-14-0001-0249
§
§
CLAYCO, INC., and FS §
ARCHITECTURE, P.C., §
§
Respondents. §

ORDER PARTIALLY GRANTING AND PARTIALLY DENYING
RESPONDENTS' MOTION TO DISMISS ON STATUTES OF LIMITATIONS

The arbitration panel has reviewed and considered Respondents' August 14, 2015

Motion to Dismiss Arbitration On Statutes of Limitations, filed by both of the above

named Respondents in this matter. The panel also considered Claimant's August 24,

2015 Response to same, as well as Respondents' Reply of August 31, 2015. In addition

to the above submissions, the panel received and deliberated upon the oral argument of

the parties in support of said submissions.

After consideration of all of the above, the panel determines that Respondent

Clayco, Inc.'s ("Clayco") Motion to Dismiss is well taken, and should be Granted for the

reasons that briefly follow. The panel further determines that Respondent FS

Architecture, P.C.'s ("FSA") Motion to Dismiss is not well taken, and should be Denied.

Intellicenter Dallas Investments, L.P. ("Claimant" or "lntellicenter" brought

claims against Clayco for breach of contract, as well as for failure to indemnify, negligent

misrepresentation, and fraud. The majority of the facts relevant and necessary to the

Order on Respondents' Motion to Dismiss Page 1

R.P. Appx. 200
 determination of Clayco's Motion against Claimant are not in dispute or are conclusively

established. There is no dispute that the contract between the parties in this matter is a

modified AlA Document Alll - 1997 Standard Form of Agreement Between Owner and

Contractor design-build contract ("Standard Form"), which incorporates a modified AlA

Document A201 - 1997 General Conditions of the Contract for Construction ("General

Conditions").

There is also no dispute that the date of Substantial Completion of the Project was

March 6, 2007. The parties also agree that Section 13.7 of the General Conditions of the

Contract ("Commencement of Statutory Limitations Period,") governs the accrual of any

and all claims arising from any acts or omissions related to the Contract. Specifically,

Section 13.7.1(3) provides, as between the Owner and Contractor, as follows : "[a]s to

acts or failures to act occurring after the payment, any applicable statute of limitations

shall commence to run and any alleged cause of ·action shall be deemed to have accrued

in any and all events not later than the date of any act or failure to act by the Contractor

pursuant to any Warranty provided under Section 3.5, the date of any correction of the
I

Work or failure to correct the Work by the Contractor under Section 12.2, or the date of

actual commission of any other act or failure to perform any duty or obligation by the

Contractor or Owner, whichever occurs last.

Section 3.5 of the General Conditions, provides that the warranty period is for one

(1) year from the March 6, 2007 date of Substantial Completion. Consequently, any

claims, as between Owner and Contractor, relating to any acts or failures to act occurring

subsequent to the date of final payment, would begin to accrue no later than March 6,

Order on Respondents' Motion to Dismiss Page2

R.P. Appx. 201
 2008 and the applicable statute of limitations would begin to run no later than March 6,

2008.

Intellicenter argued that the "accrual" provision constitutes an unenforceable

contractual waiver of the application of the discovery rule, and requests that the panel

hold that such a provision is void as against the public policy of the state of Texas.

Although the parties presented cogent arguments both for and against Intellicenter's

request, Intellicenter was unable to present any Texas case authority for the proposition

that the patties' bargained-for allocation of risk should be disturbed under the

circumstances of this case. Virtually a ll sister State courts who have considered the

enforceability of Section 13.7 of AlA Document A201 have held that it does not violate

public policy . Absent any Texas authority to the contrary, this arbitration panel declines

the invitation to interfere with the bargain entered into and memorialized by these parties.

Consequently, Intellicenter's request for relief from the contractual provision waiving

application of the discovery rule is denied.

Alternatively, lntellicenter argues that its claims were revived pursuant to the

operation of§ 16.069 of the Texas Civil Practice and Remedies Code, which provides that

"if a counterclaim or cross claim arises out of the same transaction or occurrence that is

the basis of an action, a party to the action may file the counterclaim or cross claim, even

though as a separate action it would be barred by limitation on the date the party's answer

is required," so long as the counterclaim or cross claim is filed within thirty days after the

date ~he party's answer is required.

Clayco filed their action in District Court on February 20, 2015, and amended

their petition on March 16, 2015. Clayco's District Court pleading sought to have the

Order on Respondents' Motion to Dismiss Page 3

R.P. Appx. 202
 Court determine that Intellicenter's claims were time-barred, and sought to enjoin

Intellicenter and the AAA from proceeding with the arbitration. Clayco also sought

dismissal of the arbitration matter based on the certificate of merit statute. Clayco also

sought attorney's fees as appropriate.

On March 2, 2015, in response to Clayco's District Court filing, Intellicenter filed

claims which Intellicenter asserts are counterclaims arising out of the same transaction or

occurrence, such that they would no longer be barred, under Texas Civil Practice and

Remedies Code § 16.069.

After review and consideration of the parties' submissions on this issue, it is clear

that Intellicenter's claims should not be considered to be "automatically revived" by §

16.069, because Intellicenter's claims cannot fairly be characterized as cross-claims or

counterclaims to the declaratory relief that Clayco sought in the District Court action.

The relief Clayco sought was both declaratory and defensive in nature. Additionally,

Clayco's generic request for attorney's fees, as appropriate, does not serve to convert the

declaratory relief sought by Clayco, into the type of affirmative relief that would allow

for Intellicenter's otherwise time-barred claims to be revived under§ 16.069.

Finally, Intellicenter asserts that its arbitration claims are timely because they

were filed within one year after Clayco allegedly refused Intellicenter's indemnification

request. Intellicenter's argument fails because the indemnification provision relied upon

by Intellicenter (Section 4.4.1) is an indemnification provision which is not triggered by

liability claims between the parties, but instead obligates Clayco to protect Intellicenter

against the liability claims of third parties or actors who are not parties to the agreement.

Adoption of Intellicenter's interpretation (that Intellicenter can sue on Intellicenter's own

Order on Respondents' Motion to Dismiss Page4

R.P. Appx. 203
 claims, within a certain period of time that only begins to run after the rejection of a

request for indemnity) would render meaningless several provisions of the contract

(including the accrual provision discussed above). The parties' briefing presented no

evidence that the parties intended to allow for such a circular result.

JnteUicente.r's claims against Clayco in this arbitration, were all ftled outside the

respective statute of limitations, but for application of the discovery rule. For the reasons

described above, the discovery rule does not apply to lntellicenter's claims against

Clayco. Consequently, the arbitration panel determines that lntellicenter's claims against

Clayco are time-barred and Clayco's Motion to Dismiss should be; and is hereby,

GRANTED.

SIGNED THIS 3RDDA Y OP NOVEMBER, 2015.

RON. CARLOS G. LOPEZ
C OF ARBITRATION PANEL

Order on Respondents' Motion to Dismiss Page 5

R.P. Appx. 204
 FILED
DALLAS COUNTY
2/20/2015 4:39:14 PM
FELICIA PITRE
DISTRICT CLERK
1 CIT/ ESERVE
DC-15-02018
CAUSE NO. ________________ Gay Smith

FORUM STUDIO, INC. and § IN THE DISTRICT COURT
CLAYCO, INC., §
§
Plaintiffs, §
§
V. § ________ JUDICIAL DISTRICT
§
INTELLICENTER DALLAS §
INVESTMENTS LLP, §
§
Defendant. § DALLAS COUNTY, TEXAS

PLAINTIFFS’ ORIGINAL PETITION

TO THE HONORABLE JUDGE:

Plaintiffs Forum Studio, Inc. and Clayco, Inc. file this Original Petition pursuant to

Sections 171.023, 171.096, 150.002 and 37.001 et seq., Tex. Civ. Prac. & Rem. Code,

complaining of Defendant Intellicenter Dallas Investments LLP, and for causes of action show as

follows:

DISCOVERY CONTROL PLAN

1. Plaintiffs intend to conduct discovery under Level 1 of the Texas Rules of Civil

Procedure, Rule 190.2.

PARTIES

2. Plaintiff Clayco, Inc. (“Clayco”) is a Missouri corporation with its principal place

of business in St. Louis County, Missouri, that transacts business in Texas.

3. Plaintiff Forum Studio, Inc. (“Forum”) is a Missouri corporation with its principal

place of business in St. Louis County, Missouri, that transacts business in Texas.

4. Defendant Intellicenter Dallas Investments LLP (“Intellicenter”) is a Delaware

limited liability partnership that transacts business in Texas, that may be served with citation by

PLAINTIFFS’ ORIGINAL PETITION Page 1

R.P. Appx. 205
delivery of the same to its registered agent in Texas: National Registered Agents, Inc., 1021

Main Street, Suite 1150, Houston, Texas 77002.

JURISDICTION AND VENUE

5. Jurisdiction is proper pursuant to §§ 171.023, 171.096, 150.002 and 37.001 et

seq., Tex. Civ. Prac. & Rem. Code.

6. Mandatory venue in Dallas County exists pursuant to § 15.001(b)(1), Tex. Civ.

Prac. & Rem. Code because: (a) § 171.096(a) and (b), Tex. Civ. Prac. & Rem. Code mandates

that Dallas County is the proper venue because it is the county in which Defendant resides or has

a place of business and/or the parties’ agreements provide that any arbitration that is to be held to

resolve arbitrable disputes between them must be heard in Dallas County; and (b) § 15.020, Tex.

Civ. Prac. & Rem. Code mandates venue in Dallas County because this case involves an action

arising out of a “major transaction” that is evidenced by a written agreement in which the parties

selected and agreed upon Dallas County as the mandatory venue of any proceedings between

them.

7. Plaintiffs do not seek a monetary recovery other than attorneys’ fees, as may be

authorized by law, in an amount not to exceed $100,000.00.

FACTS

A. The Contract for the Design and Construction of the Building

8. On or about May 19, 2006, Intellicenter (as owner) and Clayco (as design-build

contractor) entered into a modified AIA Document A111 – 1997 Standard Form of Agreement

Between Owner and Contractor design-build contract (“Standard Form”) for the design and

construction of a four-story office building located in Irving, Texas (the “Building”). The

Standard Form incorporates by reference a modified AIA Document A201 – 1997 General

Conditions of the Contract for Construction (“General Conditions”). The Standard Form also

PLAINTIFFS’ ORIGINAL PETITION Page 2

R.P. Appx. 206
incorporates by reference the Outline Specifications. The Standard Form, General Conditions

and Outline Specifications are hereinafter collectively referred to as the “Contract.”

9. Pursuant to Subsection 13.1.1 of the General Conditions, the parties agreed that

Texas law governs the Contract.

10. The Standard Form describes the subject project (i.e., the Building) as follows:

“The design and construction of a 4-story speculative office building, consisting of

approximately 211,637 gross square feet, located at 3701 Regent Blvd., Irving, Texas.”

11. Pursuant to the Contract, Clayco provided architectural and engineering services

to Intellicenter. The Standard Form identifies Forum as the architect of the Building, and Forum

performed architectural services in connection with the design of the Building pursuant to a

separate contract with Clayco. Forum is an architectural firm licensed to provide architectural

services in several states, including Texas.

12. Forum separately contracted for certain structural, mechanical, electrical, and civil

engineering services with other design professionals.

13. Section 13.7 of the General Conditions is titled “COMMENCEMENT OF

STATUTORY LIMITATIONS PERIOD,” and governs the commencement of statutory

limitations periods with respect to claims arising from the Contract, and in this regard Subsection

13.7.1 of the General Conditions provides as follows:

As between the Owner and Contractor:

.1 Before Substantial Completion. As to acts or failures to act
occurring prior to the relevant date of Substantial Completion, any
applicable statute of limitations shall commence to run and any
alleged cause of action shall be deemed to have accrued in any and
all events not later than such date of Substantial Completion.
.2 Between Substantial Completion and Final Certificate for
Payment. As to acts or failures to act occurring subsequent to the
relevant date of Substantial Completion and prior to issuance of the
final Certificate for Payment, any applicable statute of limitations

PLAINTIFFS’ ORIGINAL PETITION Page 3

R.P. Appx. 207
 shall commence to run and any alleged cause of action shall be
deemed to have accrued in any and all events not later than the
date of issuance of Owner is required to make the final Certificate
for Payment; payment hereunder; and
.3 After Final Certificate for Payment. As to acts or failures to act
occurring after the relevant date of issuance of the final Certificate
for Payment, payment, any applicable statute of limitations shall
commence to run and any alleged cause of action shall be deemed
to have accrued in any and all events not later than the date of any
act or failure to act by the Contractor pursuant to any Warranty
provided under Section 3.5, the date of any correction of the Work
or failure to correct the Work by the Contractor under Section
12.2, or the date of actual commission of any other act or failure to
perform any duty or obligation by the Contractor or Owner,
whichever occurs last.

14. Construction of the Building was substantially complete on March 6, 2007, as

evidenced by an AIA Document G704 – 2000 Certificate of Substantial Completion issued by

Forum. Intellicenter never contested Forum’s certification of substantial completion.

B. The Commencement of Arbitration Proceedings with the AAA

15. On or about September 5, 2014, Intellicenter filed a Demand for Arbitration (the

“Arbitration Complaint”) with the American Arbitration Association (“AAA”), and commenced

Case No. 01-14-0001-0249 against Forum and Clayco (the “Arbitration Case”). A true and

accurate copy of the Arbitration Complaint is attached hereto as “Exhibit 1.”1

16. The filing of the Arbitration Complaint commenced an action or arbitration

proceeding for damages against Forum and Clayco arising out of the provision of professional

services by a licensed or registered professional. To date, no arbitrators have been selected for

the arbitration and Forum and Clayco have not filed an answering statement, and they are not

required to do so, as detailed below.

1
In January of 2015, Intellicenter’s foreign entity registration to do business in Texas expired or terminated, as did
its right to maintain any suits filed in Texas. See § 9.051(b), Tex. Bus. Org. Code.

PLAINTIFFS’ ORIGINAL PETITION Page 4

R.P. Appx. 208
C. Texas’ “Certificate of Merit” Requirement Under § 150.002, Tex. Civ. Prac. &
Rem. Code

17. Section 150.002, Tex. Civ. Prac. & Rem. Code, titled “Certificate of Merit,”

mandates that “in any action or arbitration proceeding in Texas for damages arising out of the

provision of professional services by a licensed or registered professional, the plaintiff shall be

required to file with the complaint an affidavit of a third-party licensed architect, licensed

professional engineer . . .,” meeting the qualifications set forth in § 152.002(a)(1-3). The

mandatory affidavit “shall set forth, specifically for each theory of recovery for which damages

are sought, the negligence, if any, or other action, error, or omission of the licensed or registered

professional in providing the professional service, including any error or omission in providing

advice, judgment, opinion, or a similar professional skill claimed to exist, and the factual basis

for each such claim.” § 150.002(b), Tex. Civ. Prac. & Rem. Code.

18. Intellicenter did not file any certificate of merit, let alone one that complies with

the requirements of § 150.002(a) and (b), with the Arbitration Complaint.

19. Section 150.002(e), Tex. Civ. Prac. & Rem. Code mandates that a plaintiff’s

failure to file the affidavit(s) required under § 150.002(a) and (b) (commonly known as a

“certificate of merit”), in accordance with § 150.002, shall result in the dismissal of the

complaint against the defendant(s), and the dismissal may be with prejudice.

20. As defendants sued in an arbitration proceeding for damages arising out of the

provision for professional services, Defendants are not required to answer the Arbitration

Complaint, and instead, they may seek its dismissal. See § 150.002(d) and (e), Tex. Civ. Prac. &

Rem. Code.

PLAINTIFFS’ ORIGINAL PETITION Page 5

R.P. Appx. 209
D. Intellicenter’s Arbitration Complaint is also Time-Barred Under Texas Law

21. Independent of the Chapter 150 dismissal requirement described above,

Intellicenter’s claims are also time barred.

22. Subsection 13.7 of the General Conditions governs the commencement of

statutory limitation periods with respect to claims arising from the Contract, and Subsection

13.7.1(.1) provides as follows with respect to any “acts or failures to act” that occurred prior to

the substantial completion of the Building: “[A]ny applicable statute of limitations shall

commence to run and any alleged cause of action shall be deemed to have accrued in any and all

events not later than such date of Substantial Completion” (emphasis added).

23. Each of the claims in Intellicenter’s Arbitration Complaint arise from and directly

relate to the Contract, and further, each of the claims concerns “acts or failures to act” that

occurred, if at all, prior to the date of Substantial Completion of the Building.2

24. As previously alleged, Construction of the Building was substantially complete on

March 6, 2007, the contractual accrual date of any claims or causes of action. The Contract

expressly waives application of the so-called discovery rule, as a means for achieving equitable

tolling of the applicable limitations period.

25. Intellicenter’s claims in the Arbitration Complaint are governed by either a two or

four year limitations period. See §§ 16.003(a), 16.004(a)(3) and 16.004(a)(4), Tex. Civ. Prac. &

Rem. Code. The Arbitration Complaint was filed with the AAA on September 5, 2014, which is

over seven years and five months after accrual of the asserted claims, and commencement of

the limitations period(s). The claims are time barred.

2
Notwithstanding Forum and Clayco’s statute of limitations argument herein, they each continue to deny
any liability to Intellicenter in connection with the claims in the Arbitration Complaint.

PLAINTIFFS’ ORIGINAL PETITION Page 6

R.P. Appx. 210
 CAUSES OF ACTION

Count One: Application to Stay the Arbitration Case

26. Section 171.023, entitled “Proceeding to Stay Arbitration,” authorizes a court to

stay an arbitration commenced or threatened, on application and a showing that there is not any

agreement to arbitrate.” § 171.023(a), Tex. Civ. Prac. & Rem. Code.

27. Intellicenter’s Arbitration Complaint purports to assert claims and/or causes of

action that arise from and relate to the Contract, which adopted Texas law as the governing law

in Subsection 13.1.1 of the General Conditions. Because the Arbitration Complaint commenced

an arbitration proceeding for damages arising from the provision of professional services, and

Intellicenter agreed to the application of Texas law (which includes Chapter 150, Tex. Civ. Prac.

& Rem. Code), its failure to comply with the certificate of merit filing requirement in §

150.002(a) and (b) constitutes Intellicenter’s failure to satisfy a statutory condition precedent to

any purported right to arbitrate the claims in the Arbitration Complaint. As a matter of law,

including but not limited to § 150.002(d), Tex. Civ. Prac. & Rem. Code, until that condition

precedent is satisfied (if it can be satisfied), there is no agreement to arbitrate. And, if the

condition precedent cannot be satisfied (and in this case, it cannot be satisfied), there is a waiver

of any purported right to arbitrate the claims in the Arbitration Complaint, because dismissal of

the Complaint is statutorily mandated with prejudice.

28. Pursuant to § 150.002(e), Tex. Civ. Prac. & Rem. Code, the Arbitration

Complaint should be dismissed, with prejudice, because of Intellicenter’s failure to comply with

§ 150.002(a) and (b) and, if necessary, with prejudice due further to the fact that the claims in the

Arbitration Complaint are time barred under the applicable statutes of limitations. See below,

Count Two.

PLAINTIFFS’ ORIGINAL PETITION Page 7

R.P. Appx. 211
 29. Pending the Court’s adjudication of the dismissal motion, a stay of the Arbitration

Case is appropriate and necessary for the following reasons:

a. There is no agreement to arbitrate under the circumstances presented
because of Intellicenter’s failure to comply with § 150.002(a) and (b);

b. A motion to dismiss under Chapter 150 is, by statute, a procedural request
for relief that must be considered on an interlocutory basis, prior to the
occurrence of any proceeding on the merits, if any such proceeding can
occur; and,

c. Any activity in the Arbitration Case will interfere with the parties’ rights
and obligations to adjudicate the occurrence or satisfaction of the
mandatory conditions precedent to the mere occurrence of the Arbitration
Case.

30. Plaintiffs apply for such a stay.

Count Two: Application/Motion for Dismissal and
Request for Declaratory Judgment

31. For the reasons set forth herein above, Intellicenter’s Arbitration Complaint must

be dismissed because no certificate of merit was filed with the Arbitration Complaint, where one

was required by § 150.002, Tex. Civ. Prac. & Rem. Code. Plaintiffs apply for and/or move for a

dismissal with prejudice.

32. A justiciable controversy exists between Forum and Clayco, on the one hand, and

Intellicenter, on the other hand. Because Texas law does not permit amendment of the

Arbitration Complaint to cure Intellicenter’s failure of compliance with the § 150.002 certificate

of merit filing requirement, the Court’s dismissal is a final judgment on the Arbitration

Complaint, so the Court should enter a judgment declaring such non-compliance as grounds for

dismissal of the Arbitration Complaint, with prejudice.

33. Pleading further or in the alternative, under its equity jurisdiction, the Court

should declare that the claims in the Arbitration Complaint are time barred by application of the

PLAINTIFFS’ ORIGINAL PETITION Page 8

R.P. Appx. 212
statute of limitations set forth in Chapter 16, Tex. Civ. Prac. & Rem. Code, as a further basis for

its dismissal, with prejudice.

34. The foregoing declarations will resolve the disputes, controversies and

insecurities that now exist between the parties, regarding whether the Arbitration Claims are

arbitrable, under the prevailing circumstances.

35. The Court should award Plaintiffs reasonable and necessary attorneys’ fees,

pursuant to § 37.009, Tex. Civ. Prac. & Rem. Code.

CONDITIONS PRECEDENT

36. All conditions precedent to Plaintiffs’ right to file this petition and to recover the

relief requested herein have occurred or been performed.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs Clayco, Inc. and Forum Studios,

Inc. pray that Defendant Intellicenter Dallas Investments, LLP be cited to appear and answer,

and that on final trial, Plaintiffs have the interim relief applied for above and a final judgment

against Defendant, including the following:

a. An interim order, pursuant to § 171.023, Tex. Civ. Prac. & Rem. Code, staying
any further proceedings in the Arbitration Case;

b. Judgment making the declarations prayed for above and/or dismissing the
Arbitration Complaint, with prejudice;

c. Judgment awarding Plaintiffs reasonable and necessary attorneys’ fees and costs
of court; and,

d. Any other and further relief the Court deems just and proper.

PLAINTIFFS’ ORIGINAL PETITION Page 9

R.P. Appx. 213
 Respectfully submitted,

/s/ Kenneth B. Chaiken
Kenneth B. Chaiken
State Bar No. 04057800
kchaiken@chaikenlaw.com
CHAIKEN & CHAIKEN, P.C.
Legacy Town Center III
5801 Tennyson Pkwy, Suite 440
Plano, Texas 75024
(214) 265-0250 telephone
(214) 265-1537 facsimile

ATTORNEYS FOR PLAINTIFFS

OF COUNSEL:

R. Thomas Avery
Missouri State Bar No. 45340
rtavery@bbdlc.com
BLITZ, BARDGETT & DEUTSCH, LC
120 South Central Avenue, Suite 1650
St. Louis, Missouri 63105
(314) 863-1500 telephone
(314) 863-1877 facsimile

PRO HAC VICE MOTION TO BE FILED

PLAINTIFFS’ ORIGINAL PETITION Page 10

R.P. Appx. 214
 EXHIBIT 1
R.P. Appx. 215
 AMERICAN ARBITRATION ASSOCIATION
ONLINE FILING ACKNOWLEDGEMENT
This confirmation serves as the Demand for Arbitration or Request for Mediation for this filing.
To institute proceedings, please send a copy of this form and the parties' dispute resolution agreement to the
opposing party.
Case#: 01-14-0001-0249
This will acknowledge receipt of a request for dispute resolution services tor the claim and parties detailed below.

This claim has been filed for Arbitration
This matter has been filed in accordance with Construction Industry Arbitration Rules
The fee paid at the time of filing was $8,200.00
This request was received by the AAA on 05-Sep-2014

Claim Description
On or about May 19, 2006, Intellicenter Dallas
Investments, LP ("lntellicenter") contracted with Clayco
Inc ("Contractor") under a Design Build contract
("Design Build Contract") tor the design and
construction of a 4 story speculative office building
consisting of approximately 211,637 square feet located
at 3701 Regent Boulevard, Irving Texas ("Project").
The Design Build Contract provided that the Contractor
shall be responsible to lntellicenter for acts and
omissions of the Contractor's employees, subcontractors
and their agents and employees, and other persons,
including the Architect, engineers and other Design
Professionals, performing any portion of the Contractor's
obligations under Article 3 with respect to the design of
the Project.

The Design Build Contract Documents included a
specification manual which required the elevated tloor
slabs to be designed for a I OOlb live load with Code
allowance reductions. The Contractor completed
construction on March 6, 2007 as indicated in the
architect's certification under the Certificate of
Substantial Completion. In September 2007, six months
aller Substantial Completion, the architect. Forum
Studio Inc.(" FS") .• represented to lntellicenter that the
Project was built in accordance with the plans and
specifications. Further, FS indicated that it understood
lntellicenter was relying upon the architect's
representation and that lntellicenter may pursue a claim
in the event that lntellicenter has any loss or damage as a
result of the facts and circumstances that exist at the
Project which made any of the FS's certifications
incorrect or inaccurate.

Last year, as Intellicenter was preparing the building for
sale, a broker noted some cracking in the exterior tilt
panels. After evaluating the cracks, the design, and the
building, lntelliccntcr learned that the cracks, some of
which appeared to have been intentionally concealed by
repair at the time of initial construction, were the result

R.P. Appx. 216
 of inadequate structural design in portions of the
perimeter concrete wall panels and a portion of the steel
beam to wall panel connections in such a way that some,
if not all, failed to meet applicable building code based
upon contract specitied live load on design drawings.
Upon its first discovery of the cracks, lntellicenter wmte
Contractor and 1·equested that Contractor co1'1'ect the
deticient design and/or construction. lntellicenter even
met with Contractor in person and requested more
information. Despite the request to repair the
deficiency, Contractor has refused to correct the design
and construction deficiencies. Because of Contractor's
refusal, lntellicenter has sought bids and contracted for
the Project to be repaired to correct the defects. Until
undertaking these repairs, lntellicenter had not made any
repairs to the outside of the Project.

lntellicenter tiles this demand for arbitration to recover
the losses it has sustained as a result of Contractor's
and/or FS's breach of contract, breach of implied
warranty, unjust enrichment, deticient design, fraud
and/or negligent misrepresentation. lntellicenter also
seeks to recover its attorney's fees, and all reasonable
and necessary costs and expenses recoverable under the
Design Build Contract and/or applicable law and further
seeks all other reliefpermitted by law.
Claim Amount $1.500.000.00
Do you have a Non-monetary aspect to your claim? N
Additional Damages
Amount
Attorney fees
Interest
Other

Fee Schedule Option Standard
ADR Agreement Contained in AlA Document.

Parties and Representatives

Party 1

Category Owner
Name
Company Name lntellicenter Dallas Investments LP
Address 8115 Preston Road
Suite 700
Dallas, TX 75225
Phone
Fax
Email
The Party is the Company

Representative 1

Name Gregory C. Noschese
Firm Name Munsch Hardt KopfHarr

R.P. Appx. 217
 Address 500 North Akard
Suite 3800
Dallas, TX 75201
Phone
Fax
Email gnoschese@munsch.com

Party 2

Category Design I Builder
Name
Company Name Clayco Inc.
Address 2199lnnerbelt Business Drive
St. Louis, MO 63114
Phone
Fax
Email
The Party is the Company

Representative 2

Name Thomas Avery
Firm Name
Address 120 South Central Avenue
Suite 1650
St. Louis , MO 63105
Phone
Fax
Email

Party 3

Category Architect
Name
Company Name FS Architecture. PC
Address c/o Forum Studios, Inc.
2199 Innerbelt Business Ct1·. Dr.
St. Louis, MO 63!14
Phone
Fax
Email
The Party is the Company

Representative 3

Name Registered Agent
Firm Name FS Architecture, PC
Address c/o Forum Studios. Inc.
2199 Jnnerbelt Business Ctr. Dr.
St. Louis, MO 63114
Phone
Fax
Email

R.P. Appx. 218
 EXHIBIT

= MEP DESIGN DOC'S

= SlRUCTURAL DRAWINGS

= TOPOICIVIL DOCUMENTS

9 BORING INFO AVAILABLE
l1o3o IFOUNOATION DRAWINGS I 12J120CTosl27ocTosl - - .. - - E:::::::. FOUNDATION DRAWINGS - .... - ...... ---.. .. .. - - -

=TILTUP PANEL DESIGN

9 STEEL BID PACKAGE READY

9 FINAL SHELL & CORE DRAWINGS AVAILABLE

CLOSE ON LAND/SITE AVAILABLE TO KOLL

=GRADING PERMIT REVIEW PROCESS

<::::::::1 FOUNDATION PERMIT REVIEW PROCESS

9 GRADING PERMIT ISSUED

= BUit.DING PERMIT REVIEW PROCESS
.. - -. BUILDING PERMIT ISSUED·- - -· .. - -· - - - - -

KOLL GMP REVIEW AND ACCEPTANCE

BEGIN V.ORKIFINAL GMP ACCEPTANCE 9 BEGIN WORK/FINAL GMP ACCEPTANCE

GMP FORMULATION PROCESS/BID PROCESS GMP FORMULATION PROCESS/BID PRocESS

= ELEVATOR BID PROCESS

c:::=======:::l ELEVATOR LEAD TIME
.... -·- ·-- ·~ M,E,P,FP BID PROCESS .. - - - .. - -·-- .• - - - - - - - - ...... --- .. -- - - - - - .. - - - - .. - - .. - - - - - .... - - - .... - .. - - - - .. -

1:::1 STEEL BUYOUT

=GLASS/CURTAIN WALL PROCUREMENT PROCESS

c:::=======:::IGLASS/GLAZING LEAD TIME

9 PROJECT AWARD
-- ...... ------- STEELSHOPS/APPROVAL.IDELIVERY·- - - - .. ------ .. - - - - - - - - ...... ·- .. - - - - - ....... ..

9 AWARD STEEL

• MOBILIZE I SITE LAYOUT

R.P. Appx. 219
-SILTATION CONTROL/CLEAR SITE

-MASS GRADING

c:::ll Ear1y bar
KOLL DEVELOPMENT CO.
- Progress bar FEBRUARY 20, 2006
-Crilicalbar DALLAS INTELUCENTER--O'MIIER SCHEDULE
211,637 SF
-summary bar ATTACHMENT A
• start milestone point
• Finish mlfestone
 - - i::::::::::::::::::fsTORM SE'M:RSISTRUCTURESJtNLETS

=====cONCRETE PAVING/IRRGATION SlEEVES

=BACKFILL CURBS/FINE GRADING FOR

= SIDEWALKSmiiSC. CONCRETE

-FOUNDATION SYSTEMS

Iii UNDERGROUND ELECTRIC/PLUMBING

- POUR MUDSLAB ON GRADE (CASTING SLAB)

-FORM. REINFORCE & POUR TILTUP PANELS

- T I L T PANELS
STRUCTURAL STEEL/DECKING/POUR DECKS (1 THRU 4) - .. •. .. .. .. - .. - - .... - .. - .. .... .. - .... - - .. - .. - ...... - .. - - - - - .. - - .... -- - - .... - .. - - - STRUCTURAL STEEL/DECKING/POUR DECKS (1 THRU 4) - - - - ..

=====>PATCH PANELS/ETCH/PAINT

= = = = = = PUNCHED WINDOWS/STOREFRONT

=MISCELLANEOUS STEEL/STAIRS

1330 !ECHANICAL SYSTEMS/ROOFTOP HVAC UNITS 40d 17AUG08 110CT06 = = = = = : : I MECHANICAL SYSTEMS/ROOFTOP HVAC UNITS
1260 ROOFING WORK 15<1 24AUG06 13SEP06 ... .. .. .. .. .... - ........ - - - - .... - ... -. - -.. -.. .. - -- - - - .. ... .. .. - - - - - - - - <::::::::::5 ROOFING WORK- -- .. - - •. - .. - .. - - .. - .. - .. - .. -

1380 PLUMBING RISERSIBATHROOM ROUGH-INS 350 24AUG06 11 OCT06 =====PLUMBING RISERS/BATHROOM ROUGH-INS

= = = = = = = = STUDS/DRYWALL/FINISHES 1!!1 PUBLIC

=======::::c DRYWALL SHAFTS 1!!1 STAIRS/ELEVATO

t : : = = = = = = = POIIoER DISTRIBUTION/INTERIOR
1450 MECHANICAL UNITS SET-FINAL TERMINATIONS 15<1 14SEP06 040CT06 .... - ..... - - - - - - - .. - - - -- - ---- . -- - .... - - - - - - .. - - - - .. -- - - - - - - -,:;::::;:::fMECHANICAL UNITS SET-FINAL TERMINATIONS - -

1360 PERMANENT PO'M:R AVAILABLE 0 20SEP06 • PERMANENT PO'M:R AVAILABLE

1320 ELEVATOR CONSTRUCTION 55ci 21SEP06 06DEC06 -- ELEVATOR CONSTRUCTION

....... .. ................ __ __ ----· __ ----·-- ---CURTAINWALL

1590 CERAMIC TILE/PLUMBING FIXTURES/PARTITIONS : : 180CT06 24NOV06 _ - - - _ __ _ _ .. _ - _ _ - _ .. ___ ... - __ .. _ ..... _ - - _ ... _ _ _ _ _ ... _ ·- _ - _ - .... - .. __ ... - - - - - - :ERAMIC TILE/PLUMBING FIXTURESIPAij
1470 MAIN ENTRY AND REAR CANOPY WORK 3~ 230CT06 01DEC06 · MAIN ENTRY AND REAR CANOPYWOJ

1440 MAIN BUILDING DRIED IN 0 260CT06 • MAIN BUilDING DRIED IN

1720 MAIN LOBBY/ELEVATOR LOBBY FINISHES 47o 02NOV06 09JAN07

R.P. Appx. 220
c::::::!l Eartybar
KOLL DEVELOPMENT CO.
- Progress bar FEBRUARY 20,2006
-Crllicalbar DAUAS INTELUCENTER-OWNER SCHEDULE
211,637 SF
-summary bar ATTACHMENT A
• Start milestone point
• Flnlsh mlestone
 ~~~~;·"~j;.."~~~~";~.;;;'RALDRAWINGs I s5dl06sEPosi21NOV051 ARCHITECTURALDRAWINGS

= MEP DESIGN DOC'S

=STRUCTURAL DRAWINGS

= TOPO/CML DOCUMENTS

• BORING INFO AVAILABLE

1030 FOUNDATION DRAWINGS 12< 120CT05 270CT05 - .. -- --- <::::::::i FOUNDATION DRAWINGS - .. - .. - - .. - - - - - .. --

1560 TILTUP PANEL DESIGN 10< 210CT05 03NOV05 =TILTUP PANEL DESIGN

1300 STEEL BID PACKAGE READY 0 250CT05 • STEEL BID PACKAGE READY

1710 FINAL SHELL & CORE DRAWINGS AVAILABLE 0 22NOV05 • FINAL SHELL & CORE DRAWINGS AVAILABLE

CLOSE ON LAND/SITE AVAilABLE TO KOLL

=GRADING PERMIT REVIEW PROCESS

<::::::1 FOUNDATION PERMIT REVIEW PROCESS

• GRADING PERMIT ISSUED

=BUILDING PERMIT REVIEW PROCESS
- - .. - - - --- .... - .. - - - - .. - .... --.-BUILDING PERMITISSUED- - - - ...... - - ·- ·- ..... - - - - .. ·- •• - - ·- - - --- .. - - - ..... -- - - - -- --- ·--- ... -

KOLL GMP REVIEW AND ACCEPTANCE

• BEGIN \MlRKIFINAL GMP ACCEPTANCE

- - - - - - GMP FORMULATION PROCESS/BID PROCESS
=ELEVATOR BID PROCESS

========::~ELEVATOR LEAD TIME
---- - - - - - - - - ·- -t::::::::JM,E,P,FPBIDPROCESS---- - - -·---

t::1 STEEL BUYOUT

=GLASS/CURTAIN WALL PROCUREMENT PROCESS

c:::=======::JGLASS/GLA21NG LEAD TIME

• PROJECT AWARD
- - - - - - - - - - - - .. - - - .. - -- STEEL SHOPS/APPROVAL/DELIVERY ... - --------------- --------------·---
• AWARD STEEL

• MOBiliZE I SITE LAYOUT

R.P. Appx. 221
-SILTATION CONTROlJCLEAR SITE

-MASS GRADING

I:Zi::::l Early bar
KOLL DEVELOPMENT CO.
- Progress bar FEBRUARY 20, 2DOe
-Critical bar DALLAS INTELUCENTER~WNER SCHEDULE
211,637 SF
-summary bar AITACHMENTA
• Start mHestone point
• Finish rnltestone
 .. - ~STORM SEVERS/STRUCl\JRES/INLETS

====::=JCONCRETE PAVINGIIRRGATION SLEEVES

= BACKFIUL CURBS/FINE GRADING FOR

= SIDEWAU 14,353,973 I 67.81 I

R.P. Appx. 281
1/21/06

DESCRIPTION QUANTITY UNIT Labor Material Sub Con Total

AI I #1 - Add Mud slab
Slab-4" with Mesh 52000 sf 2.20 114.400

Page 19 6-30-05atlantaupdata
CODE DESCRIPTION QTY U/M Labor Material Sub Con Total
Mise LS 5,000.00 5,000

119,400
Insurance 0.60% 716
Overhead & Profit 4.00% 4,805
':,:: ~:': ~: ~ I:Z.4;!la ~~:
AI !#2- pBoytpE ?QGAUGE ys 18 GAUGE MEJAI PANE! S Mf-1 & MP-2
Metal panels 1 I LS (10,900.00) (10,900)

(10,900)
lnsunmce 0.60% (65)
Overhead & Profit 4.00% 1439
:fiQ:~:~:::~::<::

I
ALI #3- PROV!QE MEJAI fANE! 5 MP-1 & Mf-2 WJSIANDARD BlJII !OINT CQRNFRS
Metal panels ' LS (14,400.00) (14,400)

(14,400)
Insurance 0.80% (86)
Overhead & Profit 4.00% 1579
VJ;lltj.:c~: ,, ,, ~' ,,

AI !#4 -QEI FIE GEBC PANE! AT I F\{FL S 2-4 AT 2 I OCAIIQNS
Delete GFRC LS (8,500.00) (8,500)
less Framing Ls (750.00) (750)

(9,250)
Insurance 0.60% (56)
Overhead & Profit 4.00% 1372
::~: :::::::: :' (Sil!1:8)

At !#5 - QEI Elf ROOF SCREEN WAI I AND §!FE! SlJfPOB!S
Metal panels LS (50,000.00) (50,000)
Strudural steel LS (100,000.00) (100,000)
Rough catpontry LS (1,000.00) (1,000)
Roofing & flashings LS 2,000.00 2,000
Drywall Framing 1 I LS (10,000.00) (10,000)
ADD FOR NEW SCREEN WALL 675 n 125.00 84,375

(74,625)
lnsunmce 0.60% (448)
Overhead & Profit 4.00% 13,003
:~11),:~:::::::~:::::

AI !#6- QEI FIE CORNICE CMp-1@ ROQF PFBIMEIEB
Metal panels LS (125,000.00) (125,000)
Roofing & flashings LS (10,000.00) (10,000)
Rough carpentry LS (75,000.00) (75,000)

R.P. Appx. 282
(210,000)
Insurance 0.60% (1,280)
Overhead & Profit 4.00% 18.450'
:VOIQ:':':':~:~:>:

I
AI If? _ MECHANICAl 1y FAS!ENEQ ROOF sysTEM IN L lEU OF FUI I Y APHEBEQ
Roofing 1 ILS (7,000.00) (7,000)

(7,000)
Insurance 0.80% (42)
Overhead & Profrt 4.00% 1282

Page2D 6-3Q...05atlantaupdate
CODE DESCRIPTION Material

I
AI I tfB ~ ELJBNISH 12"X12" pOCF! AIN Ill FIN liEU OF THE SpECIFIEQ 12~X24"

Ceramic tile 1 ILS (12,000.00) (12,000)

(12,000)
Insurance 0.60% (72)
Overhead & Profit 4.00% (483'

•Mlif~~~~!liei'¥tem

AI I fQ - El OOR JOISTS IN I IE\ J OF BEANS ON I E\(FI S ? THB\ J 4

Concrete LS
Stnlclural steel LS

Insurance 0.60%
Ovemaad & Profit 4.00%
·V.OitY.· .. ·::::::::

AI Tt10- QEI FIE S!UMRI E I IQHIING IN IfiNAN! AREA§ (INC! CONQtJ!;r & WIRE\
Leave construction temp. lighting in place

Electrical LS (15,000.00) (15,000)

(15,000)
Insurance 0.60% (90)
Overhead & Profit 4.00% (604'
•A1M~1

81 I!ll - CEI ~I~ ~~ ~BI81t:J ~II 5:t:5~tt1 Q~ ~CI II~E l8t:JP lfi
. Replace with tilt wall and storefront
Foundations 1 LS (55,000.00) (55,000)
Flatwork concrete 1 LS (2,000.00) (2,000)
Ti~·wall 1,800 SF 10.00 18,000
Stnlctural stool 1 LS (10,000.00) (10,000)
Metal wall panels 1LS (15,000.00) (15,000)
Rough carpentry 1 LS (2,000.00) (2,000)
Roofing 1 LS (2,000.00) (2,000)
Curtainwall & storefront 1 LS (85,000.00) (85,000)
Drywa~ 1 LS .
Painting 1 LS (500.00) (500)
Access flooring 1 LS (3,000.00) (3,000)

(156,500)
Insurance 0.60% (939)
Ovemaad & Profit 4.00% (6,298

:lt=

AI !#17- DE! FIE I FFQ CFRTIFICAI!QN REQIJ!BFMFNTS
Design remains unchanged
starr LS (10,000.00) (10,000)
Dumpsters LS (15,000.00) (15,000)

R.P. Appx. 284
(25,000)
Insurance 0.60% (150)
Overhead & Profit 4.00% 11,006
:i(QiQ::;::;:::::~:::;::

43,000.00

Page22 6-3()...05atlantaupdate
 QTY U/M Labor

Insurance

AI !#19- AQQ liME STABiliZE BEl OW pAyiNG ANQ C! OSE BlDG SWS
LIME WORK

Insurance
Overhead & Profrt

AI T#2D -PRDyiDE WINDOW WAI I CONSIJI JANI
CONSULTING & WATER TESTING

Insurance
OVerhead & Profit

AI Tt21 MEpEp C! e.ycp CQOBQINAT!QN
MEPFP

Insurance

AI 1#22 CHANGE PANEl S TO 15' WIQE MOQIEY TOP GlASS
TILTUP PANEL ERECTION CREDIT
GLASS CREDIT
PIER & PANEL ADIO PER TAS

Insurance
Overhead & Profit

AI T#23 BEMQYE SCOPE W PROVIDE FIRE MARSHAll ACCESS
WEIR AMOUNT

Insurance

AI 1#24 DEl ETE 2NQ PASSENGER El E\IAIOR
ELEVATOR CREDIT
DEDUCT DRYWALL
LESS ELECTRIC/F.ALARM

':$

R.P. Appx. 285
Insurance 0.60%
OVerhead & Profit 4.00%

AI If25 CHANGE H\IAC TO 0/H SYSTEM
TO CREDIT Is
DEDUCT DRYWALL SF
LS

Insurance

PaQe23 6-30-05atlantaupdata
CODE DESCRIPTION I QTY I UIM I Labor I Material I Sub Con Total
:~iiid:':::::=::::::::::
AI !#26 -liT!! IZE H&H §TEFI
CREDIT FROM ENNIS (WITH PANEL ERECTION) 1 Is {2,318,000.00) (2,318,000)
Add for H&H 1 LS 2,091,207.00 2,091,207
Contingency 1 LS 40,000.00 40,000

{186,793)
Insurance 0.60% {1,121)
Overhead & Profit 4.00% (7 ,517i
:\!i!&l: :::·.::.:·:,:::·
At If27 El FCIB!CAL \IAILJE ENGINEERING FROM QFW p! AN
JMEG 1 Is {60,000.00) {60,000)
SF
1 LS

{60,000)
Insurance 0.60% {360)
Overhead & Profit 4.00% 12,414
'iiiil!l~~~tl~!iip add

AI J#?B AQQ m PEW QR6WINGS FOR MISSING H)(AC I ,;:;::··:·:-,-:-:-: ··:·:·
Power & FA Cgnnectjgna m Ejre Smoke pamoers per M3 Q1 currentlY bejpg rftdesjgned
JMEG-Will be raduced 1 Is 53,200.00 53,200
SF
1 LS

53,200
Insurance 0.60% 319
Overhead & Profit 4.00% 2,141
'li~~VE;::
AI !#29 AQQ I !QHIING PER NEW 11(1 /05 QOC'S NOT BECSIYED ey C! AYCQ
I jghtjnq Schedule gmyjded to JMEG vja CpnsJmGtg[§
JMEG 1 Is 117,000.00 117,000
SF
1 LS

117,000
lnSUfllnCO 0.60% 702
Overhead & Profit 4.00% 4,708
::::::::::::l~ii4~0.:

AI T#3Q -Change roof screen steel to Ga!yanjzed ·.:;:;:::,:·:: .. ' ..-_ :·::

H&H 1 Is 31,000.00 31,000
Painting 1 Ls (5,000.00) {5,000)
1LS

26,000
Insurance 0.60% 156
Overhead & Profit 4.00% 1,046
::::::::::::::Z:1'l!Ol!:
AI !#31 Caulk jntedgr sjde of wjndow frames

Pals 1 Is 11,500.00 11,500
1 Ls
1 LS

R.P. Appx. 286
11,500
Insurance 0.60% 69
OVerhead & Profit 4.00% 463
··.:=.'": :J:t=iJ~~:

~;u:;~:~: ,,::;::::::~
ALT IJ1 - A ADD MUD SLAB ADD r-------:1:-::2-:-4,-=92=:1:-i
ALT 12- PROVIDE 20GAUGE VS. 18 GAUGE METAL PANELS MP-1 & MP-2 DEDUCT VOID
ALT 13- PROVIDE METAL PANELS MP-1 & MP-2 WISTANDARD BUTT JOINT CORNERS DEDUCT r,V:';.O~I:;:D----1
ALTI4 -DELETE GFRC PANEL AT LEVELS 2-4 AT 2 LOCATIONS DEDUCT (9,678)
ALTIS - DELETE ROOF SCREEN WALL AND STEEL SUPPORTS DEDUCT rV.;...O"'I:':D=,---;
ALT 16 -DELETE CORNICE CMP-1 @ROOF PERIMETER DEDUCT VOID

Page 24 6-30-05atlantaupdllte
CODE DESCRIPTION QTY IU/M I Labor I Material Sub Con I Total I
ALT t#7- MECHANICALLY FASTENED ROOF SYSTEM IN LIEU OF FULLY ADHERED DEDUCT Either System
ALT t#8 - FURNISH 12"X12" POCELAIN TILE IN LIEU OF THE SPECIFIED 12"X24" DEDUCT May use either system
ALT t#9 - FLOOR JOISTS IN LIEU OF BEANS ON LEVELS 2 THRU 4 DEDUCT VOID
ALTt#10- DELETE STUMBLE LIGHTING IN TENANT AREAS (INCL. CONDUIT & WIRE) DEDUCT (15&~4)
ALTt#11- DELETE CURTAIN WALL SYSTEM ON COL LINE 1 AND 16 DEDUCT VOID
ALT t#12 - DELETE STOREFRONT SUNSHADES LEVELS 1 AND 2 DEDUCT VOID
ALT#13- DELETE SUNSHADES AT CURTAINWALL AREAS DEDUCT VOID
ALT t#14- DELETE INTERIOR GLASS 8 STAIR 2 (LEVELS 1, 2,3 & 4) DEDUCT VOID
ALT t#15 - REDUCE STEORFRONT PUNCHED OPENINGS DEDUCT VOID
ALTt#16- DELETE TRUCKING EXCESS SPOILS OFF SITE AND LEAVE ON SITE DEDUCT BALANCED SITE
ALTt#16a- DELETE TRUCKING EXCESS SPOILS (FROM EXTRA TOPSOIL AND UTILITY SPOILS)/LEAVE ON 51' DEDUCT BALANCED SITE
ALT #17- DELETE LEED CERTIFICATION REQUIREMENTS DEDUCT void
ALTt#18- ADD GL-7 GLAZING AND DELETE 1/4" TEMPERED (Joel Berman Glass was not quoted to other GC'1 ADD 44,988
ALTt#19- ADD LIME STABILIZE BELOW PAVING AND CLOSE BLDG SWS ADD 149,089
AL Tt#20 -PROVIDE WINDOW WALL CONSULTANT ADD 15,694
AL Tt#21 - MEPFP CLAYCO COORDINATION ADD 10,462
ALTt#22 -CHANGE PANELS TO 15' WIDE, MODIFY TOP GLASS DEDUCT void
ALTt#23 --REMOVE SCOPE TO PROVIDE FIRE MARSHALL ACCESS DEDUCT void
ALTt#24 -DELETE 2ND PASSENGER ELEVATOR DEDUCT void
ALTt#25 -CHANGE HVAC TO 0/H SYSTEM DEDUCT void
ALTt#26 -UTILIZE H&H STEEL DEDUCT void
ALTt#27 -ELECTRICAL VALUE ENGINEERING FROM DFW PLAN DEDUCT
ALTt#28 -ADD TO DFW DRAWINGS FOR MISSING HVAC ADD
ALTt#29 -ADD LIGHTING PER NEW 11/1/05 DOC'S NOT RECEIVED BY CLAYCO ADD
AL Tt#30 -Change roof screen Steel to Galvanized ADD
AL Tt#31 -Caulk interior side of window frames ADD 12,o32 I

R.P. Appx. 287
Page 25 6-30-05atlarrtaupdate
 Design Fee and Expense Summary Updated: 02/24/06
Building G SF A Est Cost per Est Cost "Shell Design
ross rea SF & Core' Fee Basis Fee Basis
Component Fee
/SF %
lnlellicenter Dallas
(estimate) Basic Design Fee
Building 212,000 $70 $14,B40.000 Architectural Forum $1.60 2.3% $340,000 Lump Sum

Fee per sqft, before $2.95 Consultants
expenses budget Structural Alper $0.52 0.7% $110,000 Lump Sum
MEP+FP DFW $0.48 0.7% $102,000 Lump Sum
Civil Glenn $0.16 0.2% $33,000 LS Fee, less Topo, ALTA. Storm Water
Landscape TBG $0.12 0.2% $25,000 Lump Sum
Energy Model Coolshadow $0.02 0.0% $5.000 Hourly NTE
Code/Life Safety RJA $0.01 0.0% $3.000 Hourly NTE
Roof Consulting Moue $0.01 0.0% $3,000 Hourly NTE
Bldg Envelope Heitmann $0.02 0.0% $3.500 Hourly NTE

$2.95 4.2%

"Estimated" Total Expenses Consultant SD DD CD CA Total Trips Cost
Forum 1 1 1 15 18 $17,100
Alper Audi 0 0 0 3 3 $2.850
DFW 0 0 0 0 0 $0
Total Travel 1 1 1 18 21 $19,950

ADA Accessology $3,000
Total Printing, Courier, etc. $3.000
Total Expenses $25,950 Budget

"Estimated" Travel Expenses (1 round trip to jobsite per person - 2 days & 1 night) Forum CA Phase Trips
Months 12

R.P. Appx. 288
Airfare $500 Punchlist 3
Rental Car $125 Total 15
Hotel $150
Food $100
Parking & Mileage $75
Total Travel Cost/person $950

Forum Studio, Inc. 1 of 1
 FORM OF CONSTRUCTION INDEMNITY AND
ASSIGNMENT AGREEMENT
(General Contractor)

THIS CONSTRUCTION INDEMNITY AND ASSIGNMENT AGREEMENT, dated as
of the _ _ day of , from ,a
_ _ _ _ _ _ _ _ _ (the "Contractor") to THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation ("Prudential"), a
("Developer") and a
(the "Venture").
------------------
RECITALS

A. Prudential and Developer shall be partners in the Venture, pursuant to Acquire
Joint Venture Interest, dated , _ _ (the "Acquisition Agreement") and the
Amended and Restated Limited Liability Partnership Agreement of the Venture, dated
___________, (the "JVA"). The Venture is the owner of the Project as more
particularly described in the Acquisition Agreement. All capitalized terms used, but not defined
herein, have the meanings given to such terms in the Acquisition Agreement.

B. The Venture and the Contractor have entered into the
, dated (the "Construction Contract"),
----------------
whereby the Contractor agreed to construct the Improvements.

C. The Contractor desires to enter into this Agreement to induce: (i) Prudential to
make Prudential's Initial Contribution (as defined in the Acquisition Agreement) to the Venture;
and (ii) acquire an interest in the Venture, in the manner contemplated by the Acquisition
Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Contractor hereby agrees as follows:

1. Guarantee. The Contractor hereby guarantees all the work performed in
connection with the construction of the Improvements and all materials furnished and installed,
or either, under the Construction Contract including all change orders thereto, to be: (i)
substantially in accordance with the Plans and Specifications attached to the Acquisition
Agreement as Exhibit B and/or modifications thereof permitted pursuant to the Acquisition
Agreement (including any and all replacements or corrections of work performed in connection
with construction of the Improvements and materials that may be required pursuant thereto); (ii)
substantially in accordance with all federal, State of , County and City of
_______ laws, ordinances, statutes, rules and regulations applicable to the construction of
office buildings, including, without limitation, local building, environmental, land use and
persons with disabilities requirements, in effect on the date of this Agreement (collectively, the
"Legal Requirements"); and (iii) free from faulty, defective workmanship and materials. The
Contractor agrees to repair, correct or replace, at their own cost and expense, all of the work
performed in connection with construction of the Improvements and materials, or either, covered

R.P. Appx. 289
under said Construction Contract, change orders, modifications or corrections pursuant thereto
that may prove not to be substantially in accordance with the Plans and Specifications (and/or
modifications thereof permitted pursuant to the Acquisition Agreement) or the Legal
Requirements or not to be free from faulty, defective workmanship and/or materials, ordinary
wear and tear excepted. The Contractor does further agree to pay the cost of repairing all
damage to other property resulting from defects in the work, performed in connection with
construction of the Improvements, and materials, or either, covered by this Agreement and to pay
the cost and expenses of replacing other property which may be damaged or disturbed in making
good any defects as provided herein.

This Agreement shall be for a period of 1 year commencing the date of substantial
completion of the Project. This Agreement shall be for the entire work performed in connection
with construction of the Improvements except as may be extended by other guarantees specified
elsewhere in the Construction Contract or as required by applicable law, and materials under the
Construction Contract, and is in no way to be construed as invalidating guarantees for longer
periods where required by the Construction Contract. This Guarantee shall not broaden the scope
of the guarantees specified in the Construction Contract.

All replacements and corrections to defective work performed in connection with
construction of the Improvements and materials; or either, are to be done at the convenience of
the Venture.

The obligation of Contractor under this Agreement shall survive both final payment for
the work performed in connection with the construction of the Improvements or designated
portion thereof and termination of the Construction Contract.

2. Indemnification. The Contractor shall indemnify, defend and hold harmless
Prudential and the Venture, their officers, agents and employees for from and against any and all
claims and demands, just or unjust, of third persons for death, for bodily injury, for personal
injury, for property damage, direct or consequential, or for breach of contract arising or alleged
to arise out of the construction of the Improvements and for all expenses incurred by them in the
defense, settlement or satisfaction thereof except to the extent such claims and demands result
from the intentional acts of Prudential or the Venture.

In any and all claims against Prudential or the Venture or any of their agents or
employees by any employee of the Contractor, any subcontractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable, the
indemnification obligation under this Agreement shall not be limited in any way by any
limitation on the amount or type of damages, compensation or benefits payable by or for the
Contractor or any subcontractor under workers' or workmen's compensation acts, disability
benefit acts or other employee benefit acts.

If so directed by Prudential or the Venture, the Contractor shall at its own expense defend
any suit based upon any such claim or demand within the scope of the foregoing indemnity with
counsel reasonably acceptable to Prudential or the Venture, as applicable (even if such suit,
claim or demand is groundless, false or fraudulent).
FINAL Clayco lndemnitvJ.DOC
BANK OF AMERICA/PRUDENTIAL
LOAN PURCHASE AGREEMENT
PAGE2
R.P. Appx. 290
 3. Assignment of Guarantees and Warranties. Contractor, as assignor, hereby
conditionally assigns, transfers and sets over to the Venture, as assignee, all of its right, title and
interest in and to all guarantees and warranties received by Contractor from subcontractors and
suppliers in connection with the construction of the Improvements. This assignment shall be
effective upon default by the Contractor under this Agreement or upon complete satisfaction of
the obligations of Contractor hereunder. Contractor shall not and has not taken any action or
done any thing which could limit the enforceability of such guarantees and warranties.

4. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of - - - -

5. No Assignment of Benefits Under this Agreement. Neither Prudential nor the
Venture may assign this Agreement or its rights under this Agreement. This Agreement shall
terminate as to both Prudential and the Venture upon any transfer by Prudential of its interest in
the Venture to other than an affiliate of Prudential.

[CONTRACTOR]

By:_ _ _ _ _ ___;__ _ _ _ _ __
Name:
Its:
-----------------------

FINAL Clayco Indemnity3.DOC
BANK OF AMERICA/PRUDENTIAL
LOAN PURCHASE AGREEMENT
PAGEJ
R.P. Appx. 291
 FORM OF ARCHITECT'S CERTIFICATE

[LETTERHEAD OF ARCHITECT FOR THE PROJECT]

[Dated no later than 5 days prior to the Closing date]

The Prudential Insurance Company
of America
Prudential Real Estate Investors

Re: _____________

Gentlemen:

We understand that you intend to acquire an interest in - - - - - - -
- - - - - - - - - - - - - - - - - - - ( t h e "Venture"), which Venture
acquired the real property in - - - - ·
more particularly described in Exhibit A attached hereto (the "Land"), and
constructed an office building consisting of approximately net
rentable square feet, plus __ parking spaces (collectively, the "Improvements"),
pursuant to an Agreement To Acquire Joint Venture Interest, dated
- - - - - - - - - - - - ' 200_ (the "Commitment"). (The Land and
Improvements shall be refened to herein collectively as the "Project".)

We understand that the receipt by you of ce1iain written certifications
from us is a condition precedent to your obligation to make a capital contribution to
the Venture and to acquire an interest in the Venture. Accordingly, we hereby certify
the following to the best of our knowledge, information and belief:

1. We prepared the working drawings, a true and complete copy of which is
attached hereto as Exhibit B (the "Plans and Specifications"). The working drawings
describe the Improvements completely and accurately.

2. The Project lies in a district designated zoning
under the applicable zoning ordinances of t h e - - - - - - - - - - - - - -
The Project, ifbuilt and used in conformity with the Plans and Specifications, is in
full compliance with such zoning ordinances.

3. The Improvements contemplated by the Plans and Specifications are
permitted by and in conformance with all applicable building codes and regulations
and all other federal, state and local laws, rules and regulations relating to the
physical aspects of improvements to land.

R.P. Appx. 292
 4. Based on our observation of the Improvements during their construction
and at the time all certificates of occupancy were issued, (a) the Improvements as
actually built substantially conform to the Plans and Specifications, and comply with
all Federal, state and local laws, rules, and regulations relating to the physical aspects
of improvements to land, including, without limitation, those relating to zoning,
building and fire codes, of which we have been made aware by the owner, and
environmental laws, rules and regulations and (b) no amendment to the building
permits were required subsequent to [_ _ ____.

5. The Project complies in all respects with the Americans with Disabilities
Act and all rules, regulations and guidelines promulgated in connection therewith.

6. The specified materials for the Project do not contain asbestos or
polychlorinated biphenyl (PCB) products or any other hazardous or toxic wastes or
substances in violation of applicable environmental laws.

7. The Project, if built in conformity with the Plans and Specifications, is in
substantial compliance with all conditions and requirements specifically relating to
construction and development of the Project contained in the following documents:
[list of Private Development Covenants].

This letter is being delivered to you as a condition precedent to your
making a capital contribution to the Venture and acquiring an interest in the Venture.
We understand that you and the Venture are relying on this letter and that you or the
Venture may pursue a claim against us in the event that you or the Venture has any
loss or damage as a result of facts or circumstances that exist at the Project which
make any of our certifications incorrect or inaccurate. This letter does not constitute,
however, a guarantee of the work of the builder of the Improvements, and the builder
and its subcontractors are solely responsible for all construction means, methods,
techniques, sequences and procedures and compliance with the drawings,
specifications and contract documents.

Very truly yours,

By__________________________
Its
-------------------
(Attachments)

R.P. Appx. 293
 FORM OF ENGINEER'S CERTIFICATE

[LETTERHEAD OF PROJECT'S ON-SITE ENGINEER]

[Dated no later than 5 days prior to Second Closing date]

The Prudential Insurance Company
of America
Prudential Real Estate Investors

Re: - - - - - - -

Gentlemen:

We understand that you intend to acquire an interest i n - - - - - - - - - - -
(the "Venture"), which Venture acquired the real property in _
, more pmiicularly described in Exhibit A
attached hereto (the "Land"), and constructed an office building consisting of approximately
_______ net rentable square feet, plus __ parking spaces (collectively, the
"Improvements"), pursuant to an Agreement To Acquire Joint Venture Interest, dated
_____________, 200_ (the "Commitment"). (The Land and Improvements
shall be referred to herein collectively as the "Project".)

We understand that the receipt by you of certain written certifications from us is a
condition precedent to your obligation to make a capital contribution to the Venture and to
acquire an interest in the Venture. Accordingly, we hereby certify the following:

1. We are civil engineers licensed in the State of . We provided civil
engineering design and construction observation services for the Improvements. Our
involvement has included preparing civil engineering design plans dated (the
"Plans"). In connection with rendering the Plans, we performed such research and made such
investigations as we deemed appropriate in our professional judgment with respect to the Plans.
Our firm provided construction observation services during site preparation and grading prior to
beginning construction of buildings. In addition, we periodically observed the contractor's
progress and procedures during the preparation of the site and full course of construction.

2. We hereby represent to you that, in our professional opinion, based upon our
services rendered, the Project has been designed by this office in compliance with applicable
Federal, state and local approvals and design standards relating to the site improvements for the
land.

R.P. Appx. 294
 3. We hereby represent to you that the following utilities are connected to the
Improvements and fully operational: . Such utilities
comprise all of the utilities which were designed by this office.

4. We have concluded that on the basis of our observations that the contractor
has completed the Project in substantial conformity with the "Plans and Specifications", attached
hereto as Exhibit B. Further, the work we observed was completed in a manner compatible with
the relevant aspects of the Land as we understood them at the time of design and in substantial
compliance with our recommendations.

This letter is being delivered to you as a condition precedent to your making a capital
contribution to the Venture and acquiring an interest in the Venture. We understand that you and
the Venture are relying on this letter and that you or the Venture may pursue a claim against us
in the event that you or the Venture has any loss or damage as a result of facts or circumstances
that exist at the Project which make any of our certifications incorrect or inaccurate. This letter
does not constitute, however, a guarantee of the work of the builder of the Improvements.

Very truly yours,

By -------------------------
Its _______________

(Attachments)

R.P. Appx. 295
 CONTRACTOR'S CONSENT AND AGREEMENT

The undersigned ("Contractor") acknowledges the assignment by Intellicenter Atlanta
Investments, LLP, a Delaware limited liability partnership ("Owner"), to Bank of America, N.A., a
national banking association, as administrative agent ("Administrative Agent") on behalf of the lenders
("Lenders") from time to time parties to the Loan Agreement (as herein defined), as additional security
for the obligations of Owner under a Construction Loan Agreement ("Loan Agreement") between Owner
(as Borrower), Administrative Agent and Lenders dated September 26, 2005, of Owner's rights (but not
Owner's obligations) under the Construction Contract and any future modifications thereof or change
orders ("Contract") between Owner and the Contractor pertaining to the pr~ject contemplated by the Loan
Agreement, such project to be located upon certain real property described on Exhibit "A" attached hereto
and made a part hereof (the "Property"). Contractor hereby consents to and agrees to be bound by such
assignment Contractor further represents and warrants to and agrees with Administrative Agent and
Lenders as follows:

1. The copy of the Contract attached hereto as Exhibit "B" is a true, correct and complete
copy of the Contract, the Contract has not been changed or modified, and to Contractor's knowledge, the
Contract is in full force and effect.

2. If Owner defaults under the Loan Agreement or certain other Loan Documents (as
defined in the Loan Agreement), Lenders may elect by a specific request in writing to (i) have Contractor
continue performance under the Contract, in which case Contractor shall thereafter perform under the
Contract pursuant to the remainder of this Paragraph 2, or (ii) have Contractor stop work on the project
and vacate the Property, in which case Contractor shall promptly do so. If Lenders elect by specific
request in writing to have Contractor continue or recommence to perform work under the Contract,
Contractor shall continue or recommence performance on Lenders' behalf under the Contract in
accordance with the terms thereof, and Contractor shall be reimbursed in accordance with the Contract for
all work, labor and materials performed or furnished at Lender's request and prior to Lender's request;
provided that, (i) with respect to reimbursement for work, labor or materials prior to Lender's request,
Contractor has notified Administrative Agent in writing of the amounts owed Contractor and (ii) Lenders
shall not be required to pay any amounts for work, labor or materials for which Lenders have already
made an advance under the Loan Agreement . Contractor will look solely to the Owner for all sums
owing under the Contract which Lenders are not required to advance pursuant to this paragraph.
Contractor's agreement to act under the Contract for Lenders will not depend upon Contractor being paid
any sums which Lenders are not required to advance hereunder nor on whether the Owner has otherwise
defaulted under the Contract. Nor will Administrative Agent or Lenders be liable for any amounts owing
Contractor if Administrative Agent (on behalf of Lenders) requests Contractor to stop work and vacate
the Property pursuant to clause (ii) above. Neither Administrative Agent nor Lenders shall be liable for
any damages Contractor may be entitled to recover from Owner or for change orders made by Contractor
and not approved by Lenders pursuant to the Loan Agreement. In the event the Contract is terminated for
any reason, Contractor shall notify Administrative Agent in writing within seven (7) days of such
tennination. After such termination, Contractor shall, at Lenders' option, enter into a new contract with
Administrative Agent (on behalf of Lenders) upon substantially the same terms as the Contract.
"Lenders" as used in this Paragraph includes Lenders' successors or assigns, any receiver in possession of
the Property, any purchaser upon foreclosure of Lenders' security, or any corporation or other nominee
formed by or on Lenders' behalf (collectively "Lenders' Successors"). This Paragraph 2 shall not affect
the rights of Lenders or Lenders' Successors upon or following a foreclosure or transfer of title to the
Property.

CONTRACTOR'S CONSENT AND AGREEMENT (lntel/icenter Atlanta Investments, LLP) Pagel
4049692.1

R.P. Appx. 296
 3. If Owner defaults in making any payment or in performing any other obligation under the
Contract, Contractor shall promptly give Administrative Agent written notice thereof, specifying the
default and the steps necessary to cure same; and if Contractor learns of any default in payment due any
subcontractor or other person supplying labor or materials for the project, Contractor shall similarly
advise the Administrative Agent thereof. Contractor will not exercise any remedy available under the
Contract, at law, or in equity arising from such default by Owner until Lenders shall have had the same
opportunity to cure such default to which Owner is entitled, but at least thirty (30) days in any event, if
Lenders so elect to cure such default, and such longer period of time as may be necessary to obtain
possession of, or title to, the Property, provided that Lenders shall have no obligation to cure any Owner
default. Any curative act done by Lenders shall be as effective as if done by Owner.

4. Contractor shall not perform work under any change order without first securing
Administrative Agent's written consent to such change order unless: (a) the Owner has certified to
Contractor that Lenders' consent is not required for such change order; and (b) the cost of or reduction
resulting from any single change or modification does not exceed $50,000, and the aggregate amount of
all such changes and modifications does not exceed $500,000. In any such case, Contractor shall
promptly provide Administrative Agent or its construction consultant with a copy of such change order or
other modification. Administrative Agent's consent shall not constitute any assumption by Administrative
Agent or Lenders of any obligation under the Contract. In addition, Contractor will not terminate, or in
any material respect, modify or amend, the Contract without the prior written consent of Administrative
Agent, provided that Contractor may terminate the Contract because of a default by Owner thereunder to
the extent Contractor has such right in the Contract, provided Contractor has first complied with
Paragraphs 2 and 3 above.

5. Contractor acknowledges that the plans (the "Plans") described in the Schedule attached
hereto were prepared by an architect on Contractor's staff or engaged by Contractor to prepare such Plans
(the "Architect). Contractor represents and warrants to Administrative Agent and Lenders that such
Architect is authorized to practice architecture under the laws of the State in which the Property is located
and is familiar with the federal, state, and local laws and ordinances relevant to the construction of the
improvements (the "Improvements") described in the Plans. Architect prepared all of the Plans, or such
Plans were prepared under its supervision and direction, and Architect is responsible therefor. To the best
of Contractor's knowledge, the Plans comply with all applicable laws, including all zoning, building, and
other pertinent statutes, ordinances, rules and regulations. The Plans were prepared in accordance with
customary professional standards of architectural practice for projects similar to the Improvements. The
Plans are complete and adequate for the construction of the Improvements, and there have been no
modifications thereof except as described on the attached Schedule. The Plans have been approved by all
applicable governmental authorities. To the best of Contractor's knowledge: (a) the Improvements, if
constructed in accordance with the Plans, will fully comply with all applicable laws, statutes, ordinances,
codes, rules, regulations, decrees and orders (including but not limited to those relating to access and
facilities for handicapped persons), applicable restrictive covenants and the site plan approved by
Administrative Agent; and (b) the structural design of the Improvements, the proposed method of
construction, the foundation plan, and the materials specified by the Plans for the project are adequate and
appropriate for the contemplated Improvements and for the soil conditions of the construction site.

6. Contractor hereby expressly subordinates all contractual, constitutional and statutory
mechanics' and materialmen's liens to which Contractor may be or become entitled, to all liens and
security interests securing the loan contemplated by the Loan Agreement (all indebtedness of Borrower,
Administrative Agent and Lenders evidenced by the Loan Agreement and related loan documents are
referred to herein as the "Secured Indebtedness") and expressly waives any right to remove any
removable improvements from the Property. Contractor hereby expressly waives any equitable lien upon
the loan funds to which Contractor might otherwise be entitled. Contractor acknowledges and agrees that,

CONTRACTOR'S CONSENT AND AGREEMENT (Intellicenter Atlanta Investments, LLP) Page 2
4049692.1

R.P. Appx. 297
foreclosure of the liens and security interests securing the Joan contemplated by the Loan Agreement shall
be fully and automatically effective to cut off, terminate, and extinguish all of Contractor's liens and
claims of any kind against the Property (provided, that, such termination shall not affect any rights that
Contractor may have in any proceeds paid at any foreclosure of the Property in excess of the amount
necessary to pay the Secured Indebtedness in full). Contractor shall require all material subcontracts and
material purchase orders to contain a provision subordinating the subcontractors' and materialmen's liens
to the liens and security interests securing the Joan contemplated by the Loan Agreement and expressly
waiving the right to remove removable improvements from the Property.

7. As of the date hereof, Contractor has no counterclaim, right of set-off, defense or like
right against Owner or Lenders, and to the best of Contractor's knowledge and belief, the Owner is not in
default under the terms of the Contract. Contractor is not in default under the terms of the Contract.

8. Nothing herein shall be construed to confer any present benefits on Contractor or to
create any contractual arrangement between Contractor and Administrative Agent or Lenders or to
impose upon Administrative Agent or Lenders any duty to see to the application of the proceeds of the
Joan contemplated by the Loan Agreement or to give any notice of any type to Contractor. Contractor
acknowledges that Administrative Agent and Lenders are obligated under the Loan Agreement only to the
Owner and to no other person or entity. Contractor is executing this Contractor's Consent and Agreement
to induce Lenders to advance funds under the Loan Agreement, and Contractor understands that Lenders
would not do so but for Contractor's execution and delivery of this Contractor's Consent and Agreement.

9. Contractor shall provide Administrative Agent promptly in each case with (a) any
information Contractor may have regarding defects in workmanship or materials incorporated into or
provided for the project which come to Contractor's attention, (b) Contractor's estimate(s) of the stage(s)
of completion of the project, (c) any deviations or variations in construction of the pr~ject from the plans
and specifications used by Contractor, (d) any information Contractor may have regarding any defaults by
Owner, or any other contractor or subcontractor under any construction contracts, and (e) any claims of
non-payment by any person furnishing labor or material in connection with construction of the project

I 0. This Contractor's Consent and Agreement shall bind and benefit Contractor,
Administrative Agent, Lenders and their respective successors and assigns, including Lenders'
Successors, their successors and assigns.

11. Any notice for purposes of this Contractor's Consent and Agreement shall be given in
writing and shall be addressed or delivered to the respective addresses set forth below, or to such other
address as may have been previously designated by the intended recipient by notice given in accordance
with this Section and shall be delivered by personal delivery, by nationally recognized overnight courier
service, by prepaid registered or certified United States mail (retum receipt requested), or by facsimile.
The notice shall be deemed effective when the receipt is signed or when the attempted initial delivery is
refused or cannot be made because of a change of address of which the sending party has not been
notified; and if transmitted by facsimile or personal delivery, the notice shall be effective when received.
Until changed by notice given in accordance with this Section, the initial respective addresses for notices
are the following:

To Administrative
Agent and Lender: Bank of America, N .A.
901 Main Street, 21st Floor
Dallas, Texas 75202-3714
Attention: Real Estate Loan Administration
Fax No. 214.209.1832

CONTRACTOR'S CONSENT AND AGREEMENT (lntellicenter Atlanta Investments, LLP) Page3
4049692.1

R.P. Appx. 298
 To Contractor:

Attention:
Fax No.
-----------------------------
------------------------------
12. The provisions of this Contractor's Consent and Agreement cannot be waived, modified
or amended unless such waiver, modification or amendment is in writing and is executed on behalf of
each of Administrative Agent and Contractor.

13. Prior to the date hereof, no work of any kind, including the destruction or removal of any
existing improvements, site work, clearing, grubbing, draining or fencing of the Property, has been
commenced or performed on the Property and no equipment or materials have been delivered to the
Property for any purpose whatsoever.

14. Neither the Contract, nor any memorandum, affidavit or notice thereof, has been recorded
by or on behalf of Contractor in the county where the Property is located or in any other county. No
affidavit of commencement of construction of any improvements, performance of labor, furnishing of
materials, or providing of specially fabricated materials in connection with the construction contemplated
by the Contract has been executed or filed by Contractor in the county where the Property is located or in
any other county. Contractor will, however, join in the execution of such an affidavit once such work has
commenced in form and substance satisfactory to Administrative Agent.

15. Contractor will address to Administrative Agent, naming Administrative Agent as an
additional named party or beneficiary, all certificates, statements, or representations regarding the
completion of the project or any portion thereof.

16. THIS CONTRACTOR'S CONSENT AND AGREEMENT AND ITS VALIDITY,
ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY TEXAS LAW (WITHOUT
REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES
FEDERAL LAW.

CONTRACTOR'S CONSENT AND AGREEMENT (lntellicenter Atlanta Investments, LLP) Page 4
4049692.1

R.P. Appx. 299
 EXECUTED this _ _ day of _ _ _ _ _ _ _ _ , 2005.

"CONTRACTOR"

By: _ _ _ _ _ _ _ _ _ _ _ _ _ __
Name:
Title:
------------------------
-------------------------------

CONTRACTOR'S CONSENT AND AGREEMENT{lntel/icenter Atlanta Investments, LLP) Signature Page
R.P. Appx. 300
 EXHIBIT A

LAND

CONTRACTOR'S CONSENT AND AGREEMENT(Jntel/icenter Atlanta Investments, LLP) EXHIBIT A
R.P. Appx. 301
 EXHIBITB

CONTRACT

CONTRACTOR'S CONSENT AND AGREEMENT(Jntellicenter Atlanta Investments, LLP) EXHIBITB
R.P. Appx. 302
 SCHEDULE OF PLANS AND SPECIFICATIONS

Project:---------------------------------------
Location: ______._____________________________________________

Drawing No.
&Page Nos. Description

4049692v.2

CONTRACTOR'S CONSENT AND AGREEMENT(lntellicenter Atlanta Investments, LLP) SCHEDULE
R.P. Appx. 303
 Lfssl-{
5.9()

DC-15-020 18

FORUM STUDIO, INC. and § IN THE DISTRICT COURT
CLAYCO, INC., §
§
Plaintiffs, §
§
v. § OF DALLAS COUNTY, TEXAS
§
INTELLICENTER DALLAS §
INVESTMENTS LLP, §
§
Defendants. § 160TH JUDICIAL DISTRICT

ORDER ON PLAINTIFFS' APPLICATION TO STAY ARBITRATION

On this day, the Court considered the Application to Stay Arbitration ("Application")

filed by Plaintiffs Forum Studio, Inc. and Clayco, Inc. ("Plaintiffs"). After reviewing the

Application, the responses and replies thereto, if any, the Court is of the opinion that the

Application should be DENIED. It is, therefore:

ORDERED that Plaintiffs' Application to Stay Arbitration is hereby DENIED.

SIGNED this _!_f_ day of ~C ~

R.P. Appx. 304
 '-{f;51-/
589

DC-15-020 18

FORUM STUDIO, INC. and § IN lHE DISTRICT COURT
CLAYCO, INC., §
§
Plaintiffs, §
§
V. § OF DALLAS COUNTY, TEXAS
§
INTELLICENTER DALLAS §
INVESTMENTS LLP, §
§
Defendants. § 160m JUDICIAL DISTRICT

ORDER DENYING PLAINTIFFS' APPLICATION FOR
TEMPORARY RESTRAINING ORPER

On this day, the Court considered the Application for Temporary Restraining Order

("Application") filed by Plaintiffs Forum Studio, Inc. and Clayco, Inc. (''Plaintiffs"). After

reviewing the Application, the responses and replies thereto, if any, the Court is of the opinion

that the Application for Temporary Restraining Order should be DENIED. It is, therefore:

ORDERED that Plaintiffs' Application for Temporary Restraining Order is hereby

DENIED.

SIGNED this _!_2. day of_-==----~~ 2015.

OROER O~~N\'ING PI.AIN1WFS' APPLICATION f'ORTEMPORARY RESTRAINING ORDER - l'11gc I

R.P. Appx. 305
 FILED
DALLAS COUNTY
3/27/2015 5:20:56 PM
FELICIA PITRE
DISTRICT CLERK

DC-15-02018

FORUM STUDIO, INC. and § IN THE DISTRICT COURT
CLAYCO, INC., §
§
Plaintiffs, §
§
v. § OF DALLAS COUNTY, TEXAS
§
INTELLICENTER DALLAS §
INVESTMENTS LLP, §
§
Defendant. § 160TH JUDICIAL DISTRICT

DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION

Defendant Intellicenter Dallas Investments LLP (“Intellicenter”) files this Motion to

Compel Arbitration (the “Motion”) and would show the Court as follows:

I.
INTRODUCTION AND FACTUAL SUMMARY

On or about May 19, 2006, Intellicenter contracted with Plaintiff Clayco, Inc. ("Clayco")

under a Design Build contract ("Contract") for the design and construction of a 4 story

speculative office building consisting of approximately 211,637 square feet located at 3701
1
Regent Boulevard, Irving Texas ("Project"). The Contract assigned Clayco as the general

contractor and Plaintiff Forum Studio, Inc. (“FS”) as the Project’s architect. The Contract

contains an arbitration provision stating that:

Any Claim arising out of or related to the Contract . . . shall be
subject to binding arbitration. Prior to arbitration, the parties
shall endeavor to resolve disputes my mediation . . . Claims not
resolved by mediation shall be decided by binding arbitration
which, unless the parties mutually agree otherwise, shall be in

1
See Standard Form Agreement Between Owner and Contract and General Conditions of the Contract for
Construction, a true and correct copy of which is attached to Intellicenter’s Amended Counterclaim as Exhibit A.

DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 1 of 6

R.P. Appx. 306
 accordance with the Construction Industry Arbitration Rules
2
of the American Arbitration Association currently in effect.

On September 5, 2014, Intellicenter filed a demand for arbitration to recover the losses

sustained as a result of Plaintiffs’ breach of contract, breach of implied warranty, unjust
3
enrichment, deficient design, fraud and/or negligent misrepresentation. The Parties

subsequently submitted the claims to mediation before Judge Glen M. Ashworth. Efforts to

resolve the dispute in mediation failed. As required by the terms of the Contract, Intellicenter

began preparing for arbitration before the AAA.

On February 20, 2015, Plaintiffs commenced this litigation with the filing of their

Original Petition requesting a stay of the arbitration proceedings and seeking affirmative relief
4
under the Declaratory Judgment Act as well as attorneys’ fees. The Court denied Plaintiffs’
5
request for a stay on March 17, 2015. Intellicenter now moves the Court to formally remove

this matter to binding arbitration. The Parties’ claims are indisputably related to the terms and

obligations of the Contract and are, therefore, clearly subject to arbitration. Because all issues

before the Court are properly subject to arbitration, the Court should grant this Motion and stay

the current matter pending those proceedings. This Motion is filed to enforce the Court’s March

17, 2015 Order denying Plaintiffs’ application to stay arbitration.

2
See Exhibit A, at 4.6.1-2 (emphasis added).
3
See Intellicenter’s Demand for Arbitration, a true and correct copy of which is attached to Defendant’s Response to
Plaintiffs’ Application to Stay Arbitration as Exhibit B.
4
See Plaintiff’s Original Petition, at ¶¶ 26-35; Plaintiffs sought this same relief as well as a temporary restraining
order against the American Arbitration Association in their First Amended Original Petition, ¶¶ 39 - 49.
5
See March 17, 2015 Order Denying Plaintiffs’ Application to Stay Arbitration.
DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 2 of 6

R.P. Appx. 307
 II.
MOTION TO COMPEL ARBITRATION

Both Texas and federal courts have long shown favor toward the enforcement of
6
arbitration agreements. Because state and federal policies continue to favor arbitration, a
7
presumption exists favoring agreements to arbitrate. In light of these strong state and federal

policies, Texas and federal courts agree that any written agreement to submit a dispute to

arbitration should be liberally construed, and any doubt as to the arbitrability – whether

construction of the contract or any defense to arbitrability – should be resolved in favor of
8
arbitration.

For the court to compel arbitration, the moving party must show the claims at issue: (1)
9
are subject to a valid arbitration agreement; and (2) fall within the scope of the agreement. The
10
court must resolve any doubts about an agreement to arbitrate in favor of arbitration. Once the

court determines the claims fall within the arbitration agreement, the trial court must compel
11
arbitration and stay its own proceedings.

6
See Southland Corp. v. Keating, 465 U.S. 1, 10 (1984); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 268
(Tex. 1992).
7
United Offshore Company v. Southern Deepwater Pipeline Co., 899 F.2d 405, 408 (5th Cir.1990); Colt
Unconventional Resources, LLC v. Resolute Energy Corp., CA No. 3:13–CV–1324–K, 2013 WL 3789896, 3 (N.D.
Tex. July 19, 2013); In re First Merit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001).
8
See Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983); Rojas v. TK Commc’ns, Inc., 87
F.3d 745, 749 (5th Cir. 1996); Austin Mun. Sec., Inc. v. Nat’l. Ass’n of Sec. Dealers, Inc., 757 F.2d 676, 696 (5th
Cir. 1985); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985).
9
American Heritage v. Lang, 321 F.3d 533, 537 (5th Cir. 2003); Webb v. Investacorp, 89 F.3d 252, 257 (5th Cir.
1996).
10
Fedmet Corp. v. M/V Buyalyk, 194 F.3d 674 (5th Cir. 1999). Colt Unconventional Resources, LLC v. Resolute
Energy Corp., CA No. 3:13–CV–1324–K, 2013 WL 3789896, 3 (N.D. Tex. July 19, 2013).
11
Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir.1992).

DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 3 of 6

R.P. Appx. 308
 In rejecting Plaintiffs’ Application to Stay Arbitration, this Court determined that a valid
12
arbitration agreement exists and that the Parties’ claims fall within its scope. An order

compelling arbitration is now required. Under the very statute Plaintiffs invoked, “[i]f the Court
13
finds for the party opposing the stay, the court shall order the parties to arbitrate.” To formally

enforce this Court’s prior Order, the Court should grant this Motion and stay the instant matter

pending arbitration.

III.
CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant Intellicenter Dallas Investments

LLP requests that the Court grant this Motion to Compel Arbitration and award all relief, in law

and in equity, to which it may show itself justly entitled.

12
See March 17, 2015 Order Denying Plaintiffs’ Application to Stay Arbitration. As it did in its Response to
Plaintiffs’ Application to Stay Arbitration, Intellicenter notes that FS does not seek to avoid arbitration as a “non-
signatory” to the Contract. But even had FS asserted this defense, it would ultimately fail. Non-signatories to a
contract containing an arbitration clause may be required to arbitrate under principles of equity. See In re Labatt
Food Serv., L.P., 279 S.W.3d 640, 644 (Tex. 2009); see also In re Weekley Homes, L.P., 180 S.W.3d 127, 131 (Tex.
2005). To that end, Texas courts recognize the doctrine of direct benefits estoppel. “Under the doctrine of ‘direct
benefits equitable estoppel,’ a person who has not agreed to arbitrate may nevertheless be compelled to do so when
the person seeks to derive a direct benefit from the contract containing the arbitration provision.” In re Morgan
Stanley & Co., Inc., 293 S.W.3d 182 (Tex. 2009). Direct benefits equitable estoppel also applies to a non-signatory
who sues on a contract containing an arbitration clause. Id. Here, there can be no dispute that FS received direct,
financial benefits from the Contract—the same agreement on which it has filed suit. As a result, claims arising out
of or related to the services FS rendered are properly subject to binding arbitration.
13
TEX. CIV. PRAC. & REM. CODE ANN. § 171.023(c) (emphasis added).

DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 4 of 6

R.P. Appx. 309
 Respectfully submitted,

MUNSCH HARDT KOPF & HARR, P.C.

/s/ Greg Noschese
Greg C. Noschese
State Bar No. 00797164
John Devin Wagner
State Bar No. 24090451
500 North Akard Street, Suite 3800
Dallas, Texas 75201-6659
(214)855-7500 (Telephone)
(214)855-7584 (Facsimile)
gnoschese@munsch.com
dwagner@munsch.com

ATTORNEYS FOR DEFENDANT
INTELLICENTER DALLAS
INVESTMENTS LLP

CERTIFICATE OF CONFERENCE

I hereby certify that on March 27, 2015, the undersigned conferred with counsel for
Plaintiffs in an attempt to resolve the issues discussed herein. Those efforts failed, necessitating
the filing of this Motion.

/s/ Greg C. Noschese
Greg C. Noschese

DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 5 of 6

R.P. Appx. 310
 CERTIFICATE OF SERVICE

I hereby certify that on this 27th day of March, 2015, a true and correct copy of the
foregoing instrument was served on the following by Eserve:

Kenneth B. Chaiken
CHAIKEN & CHAIKEN, PC
5801 Tennyson Pkwy, Suite 440
Plano, TX 75024
(214)265-0250
(214)265-1537 (fax)
Email: kchaiken@chaikenlaw.com

R. Thomas Avery
BLITZ, BARDGETT & DEUTSCH, LC
120 South Central Avenue, Suite 1650
St. Louis, Missouri 63105
(314)863-1500
(314)863-1877 (Fax)
Email: rtavery@bbdle.com

/s/ Greg C. Noschese
Greg C. Noschese

DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 6 of 6

R.P. Appx. 311
6025276v.1
 FILED
DALLAS COUNTY
3/16/2015 4:37:05 PM
FELICIA PITRE
DISTRICT CLERK

DC-15-02018

FORUM STUDIO, INC. and § IN THE DISTRICT COURT
CLAYCO, INC., §
§
Plaintiffs, §
§
v. § OF DALLAS COUNTY, TEXAS
§
INTELLICENTER DALLAS §
INVESTMENTS LLP, §
§
Defendants. § 160TH JUDICIAL DISTRICT

DEFENDANT INTELLICENTER DALLAS INVESTMENTS LLP's RESPONSE TO
PLAINTIFF’S APPLICATION TO STAY ARBITRATION

Defendant Intellicenter Dallas Investments LLP (“Intellicenter”) files its Response to

Plaintiffs’ Application to Stay Arbitration. In support thereof, Intellicenter would respectfully

show as follows:

I.
FACTUAL BACKGROUND AND INTRODUCTION

On or about May 19, 2006, Intellicenter contracted with Plaintiff Clayco, Inc. ("Clayco")

under a Design Build contract ("Contract") for the design and construction of a 4 story

speculative office building consisting of approximately 211,637 square feet located at 3701

Regent Boulevard, Irving Texas ("Project"). 1 The Contract assigned Clayco as the general

contractor and Plaintiff Forum Studio, Inc. (“FS”) as the Project’s architect. Clayco and FS are

collectively referred to as “Plaintiffs”. 2

1
See Standard Form Agreement Between Owner and Contract and General Conditions of the Contract for
Construction, a true and correct copy of which is attached hereto as Exhibit A.
2
See id. at 1.

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 1 of 12

R.P. Appx. 312 1
 Pursuant to Section 4.6.1 of the Contract, the Parties agreed that "[a]ny Claim arising out

of related to the Contract . . . shall be subject to binding arbitration.” The clause further provides

that “[p]rior to arbitration, the parties shall endeavor to resolve disputes by mediation.” Section

4.6.2 of the Contract instructs that “[c]laims not resolved in mediation shall be decided by

binding arbitration which, unless the parties mutually agree otherwise, shall be in accordance

with the Construction Industry Arbitration Rules of the American Arbitration Association.”

On or about September 5, 2014, Intellicenter filed a demand for arbitration to recover the

losses sustained as a result of Plaintiffs’ breach of contract, breach of implied warranty, unjust

enrichment, deficient design, fraud and/or negligent misrepresentation. 3 The Parties

subsequently submitted the claims to mediation before Judge Glen M. Ashworth. Efforts to

resolve the dispute in mediation failed. As expressly stipulated by the terms of the Contract,

Intellicenter began preparing for arbitration before the AAA.

On February 20, 2015, Plaintiffs filed their Original Petition requesting a stay of the

arbitration proceedings and related Motion for Dismiss and Request for Declaratory

Judgment. 4 Arguing that Intellicenter failed to satisfy “a condition precedent” to its right to

arbitrate, Plaintiffs contend the right has been waived. 5 Intellicenter filed its answer and

counterclaims on March 2, 2015.

Intellicenter now files this Response to Plaintiffs’ Application to Stay the Arbitration

Case (“Response”). The plain terms of the Contract and binding precedent instruct that the

arbitrability of this dispute be decided solely by the AAA. And Plaintiffs’ grounds for avoiding

3
See Intellicenter’s Demand for Arbitration, a true and correct copy of which is attached hereto as Exhibit B.
4
See Plaintiff’s Original Petition, at ¶¶ 26-35.
5
Id. at ¶ 27.

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 2 of 12

R.P. Appx. 313 2
arbitration merely demonstrate why it is required. This Court should refuse to disturb the

Parties’ agreement and deny the application to stay arbitration.

II.
ARGUMENT AND AUTHORITIES

1. THE ARBITRABILITY OF THIS DISPUTE IS A MATTER RESERVED FOR THE AAA.

“An arbitrator's jurisdiction is defined by the parties' contract.” 6 The arbitrator has the

power to decide what matters are arbitrable where the arbitration clause “clearly and

unmistakably” gives that power to the arbitrator. 7 Here, the Parties “clearly and unmistakably”

gave that power to the AAA.

The Contract’s arbitration clause is broad, covering “[a]ny claim arising out of or related

to the Contract.” 8 Federal and state courts agree that the broader the arbitration clause, the

stronger the presumption of arbitrability. 9 In addition, “the express incorporation of rules that

empower the arbitrator to determine arbitrability—such as the AAA Commercial Arbitration

Rules—has been held to be clear and unmistakable evidence of the parties' intent to allow the

arbitrator to decide such issues.” 10 The Parties elected to pursue arbitration “in accordance with

6
Am. Realty Trust, Inc. v. JDN Real Estate- McKinney, L.P., 74 S.W.3d 527, 531 (Tex. App.—Dallas 2002, pet.
denied).
7
Howsam v. Dean Witter Reynolds, 537 U.S. 79, 83 (2002).
8
See Exhibit A, at 4.6.1; see also Ascendant Anesthesia PLLC v. Abazi, 348 S.W.3d 454, 461 (Tex. App.—Dallas
2011, no pet.) (noting arbitration provision that assigns “any controvery, dispute, or claim” to arbitration is
construed broadly and in favor of arbitration); 950 Corbindale, L.P. v. Kotts Capital Holdings Ltd. P'ship, 316
S.W.3d 191, 195–96 (Tex.App.—Houston [14th Dist.] 2010, no pet.) (“presumption of arbitrability is particularly
applicable when the clause is broad; that is, it provides for arbitration of ‘any dispute arising between the parties'”).
9
See, e.g., AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650 (1986).
10
Schlumberger Tech. Corp. v. Baker Hughes Inc., 355 S.W.3d 791, 802 (Tex. App.—Houston [1st Dist.] 2011, no
pet.); see also Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 1372–73 (Fed. Cir. 2006) (concluding that
agreement's incorporation of AAA rules clearly and unmistakably showed parties' intent to delegate issue of
determining arbitrability to arbitrator); Terminix Int'l Co., LP v. Palmer Ranch Ltd. P'ship, 432 F.3d 1327, 1332–33
(11th Cir. 2005) (holding that by incorporating AAA Rules into arbitration agreement, parties clearly and
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 3 of 12

R.P. Appx. 314 3
the Construction Industry Arbitration Rules of the American Arbitration Association.”

(“CIARAAA”). 11 The CIARAAA recognize the arbitrator’s authority “to rule on his or her own

jurisdiction, including any objections with respect to the existence, scope or validity of the

arbitration agreement.” 12 Thus, the breadth of the arbitration clause and specific language of the

applicable rules mandate that issues of arbitrability remain with the AAA. Plaintiffs’ application

to stay the proceedings should thus be denied.

2. THE ARBITRATION CLAUSE COVERS THE PARTIES’ DISPUTE.

Alternatively, if the Court finds it may properly decide arbitrability, the arbitration clause

subsumes the Parties’ dispute. Both Texas and federal courts have long shown favor toward the
13
enforcement of arbitration agreements. Because state and federal policies continue to favor
14
arbitration, a presumption exists favoring agreements to arbitrate. In light of these strong state

and federal policies, Texas and federal courts agree that any written agreement to submit a

dispute to arbitration should be liberally construed, and any doubt as to the arbitrability –

unmistakably agreed that arbitrator should decide whether arbitration clause was valid); Contec Corp. v. Remote
Solution, Co., 398 F.3d 205, 208 (2d Cir. 2005) (“[W]hen ... parties explicitly incorporate rules that empower an
arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties'
intent to delegate such issues to an arbitrator.”); Citifinancial, Inc. v. Newton, 359 F.Supp.2d 545, 549–52 (S.D.
Miss. 2005) (holding that by agreeing to be bound by procedural rules of AAA, including rule giving arbitrator
power to rule on his or her own jurisdiction, defendant agreed to arbitrate questions of jurisdiction before arbitrator);
Sleeper Farms v. Agway, Inc., 211 F.Supp.2d 197, 200 (D. Me. 2002) (holding arbitration clause stating that
arbitration shall proceed according to rules of AAA provides clear and unmistakable delegation of scope-
determining authority to arbitrator).
11
Exhibit A, at 4.6.2.
12
CIARAAA R-9(a).
13
See Southland Corp. v. Keating, 465 U.S. 1, 10 (1984); see also Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d
266, 268 (Tex. 1992).
14
United Offshore Company v. Southern Deepwater Pipeline Co., 899 F.2d 405, 408 (5th Cir. 1990); Colt
Unconventional Resources, LLC v. Resolute Energy Corp., CA No. 3:13–CV–1324–K, 2013 WL 3789896, 3 (N.D.
Tex. July 19, 2013); In re First Merit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001).
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 4 of 12

R.P. Appx. 315 4
whether construction of the contract or any defense to arbitrability – should be resolved in favor
15
of arbitration.

Generally, if the facts alleged “touch matters,” have a “significant relationship” to, are

“inextricably enmeshed” with, or are “factually intertwined” with the contract that is subject to

the arbitration agreement, the matter is arbitrable. 16 However, if the facts alleged are completely

independent of the contract, and the claim could be maintained without reference to the contract,

the claim is not subject to arbitration. 17 The Federal Arbitration Act strongly favors arbitration

and, as discussed above, any doubts as to whether a claim falls within the scope of an arbitration

agreement must be resolved in favor of arbitration. 18 Thus, Plaintiffs’ application to stay

arbitration should be denied “unless it can be said with positive assurance that the arbitration

clause is not susceptible to an interpretation which would cover the dispute at issue.” 19

The live pleadings clearly demonstrate the inextricably enmeshed nature of the terms of

the Contract and the allegations at play. Plaintiffs’ Original Petition concerns conditions to

invoking the arbitration clause and the “contractual accrual date” of Intellicenter’s claims and

causes of action. 20 Similarly, Intellicenter’s allegations turn on whether Plaintiffs designed and

constructed the Project in accordance with their contractual obligations. It is self-evident that an

adjudicator cannot resolve these disputes “without reference to the contract,” as each are

15
See Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983); Rojas v. TK Commc’ns, Inc., 87
F.3d 745, 749 (5th Cir. 1996); Austin Mun. Sec., Inc. v. Nat’l. Ass’n of Sec. Dealers, Inc., 757 F.2d 676, 696 (5th
Cir. 1985); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985).
16
Pennzoil Co. v. Arnold Oil Co., Inc., 30 S.W.3d 494, 498 (Tex. App.—San Antonio 2000, no pet.).
17
Id. (citing Fridl v. Cook, 908 S.W.2d 507, 511 (Tex. App.—El Paso 1995, writ dism'd w.o.j.) (emphasis added).
18
Id.
19
Id. (internal quotation and citations omitted); see also, AT & T Technologies, Inc. v. Communications Workers of
Am., 475 U.S. 643, 650 (1986).
20
See Plaintiffs’ Original Petition, at ¶¶ 24, 27.

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 5 of 12

R.P. Appx. 316 5
factually intertwined with the very terms to which the Parties agreed. Because the allegations

and Contract cannot be divorced, this Court cannot “with positive assurance” determine that

arbitration should be stayed. Accordingly, Plaintiffs’ application to stay the proceedings should

be denied. 21

3. PLAINTIFFS’ POSITION MERELY PROVES WHY ARBITRATION IS REQUIRED.

Plaintiffs aver that Intellicenter’s compliance with Section 150.002 of the Texas Civil

Practices & Remedies Code represents a “condition precedent” to Intellicenter’s right to

arbitration. 22 Plaintiffs argue Intellicenter “waive[d]” that right because the “condition precedent

cannot be satisfied.” 23 The argument is unavailing, misguided and simply self-defeating.

Unlike issues of substantive arbitrability, “[p]rocedural arbitrability is the province of the

arbitrator.” 24 Procedural arbitrability entails “[i]ssues of notice, time limits, laches, and

estoppel,” or “generally any issue requiring the adjudicator to decide if a party has satisfied the

prerequisites” of a right to arbitration. 25 “[W]hether the issue is described as being a failure to

21
Intellicenter notes that FS does not seek to avoid arbitration as a “non-signatory” to the Contract. That issue is
thus not properly before the Court. But even if FS had asserted this defense, it would ultimately fail. Non-
signatories to a contract containing an arbitration clause may be required to arbitrate under principles of equity. See
In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644 (Tex. 2009); see also In re Weekley Homes, L.P., 180 S.W.3d
127, 131 (Tex. 2005). To that end, Texas courts recognize the doctrine of direct benefits estoppel. “Under the
doctrine of ‘direct benefits equitable estoppel,’ a person who has not agreed to arbitrate may nevertheless be
compelled to do so when the person seeks to derive a direct benefit from the contract containing the arbitration
provision.” In re Morgan Stanley & Co., Inc., 293 S.W.3d 182 (Tex. 2009). Direct benefits equitable estoppel also
applies to a nonsignatory who sues on a contract containing an arbitration clause. Id. Here, there can be no dispute
that FS received direct, financial benefits from the Contract—the same agreement on which it has filed suit. As a
result, claims arising out of related to the services FS rendered are properly subject to binding arbitration.
22
Plaintiff’s Original Petition, at ¶ 27.
23
Id.
24
In re Global Const. Co., L.L.C., 166 S.W.3d 795, 798 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing
Howsam, 537 U.S. at 84-85).
25
Id.

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 6 of 12

R.P. Appx. 317 6
meet a condition precedent or is described as waiver . . . each one presents an issue of

procedural arbitrability.” 26

Here, Plaintiffs seek to quash arbitration with defenses that are decidedly

procedural. 27 But Plaintiffs’ position only demonstrates why arbitration is required. Plaintiffs

simply cannot avoid the well-established precept that “[t]rial court[s] [are] not authorized to

address questions of procedural arbitrability such as the satisfaction of conditions precedent to a

right of arbitration.” 28 Intellicenter is unaware of any authority removing the “condition

precedent” claimed here from the gamut of the rule. And given that “any doubts concerning the

scope of arbitrable issues should be resolved in favor of arbitration[,]” a strained analysis is not

required. 29 Because Plaintiffs’ challenges to arbitration are admittedly procedural, their request

to stay the proceedings should be denied.

4. INTELLICENTER SATISFIED THE MUTUALLY AGREED CONDITIONS TO ARBITRATION.

Even if the Court could decide issues of procedural arbitrability—which it cannot—

Intellicenter has satisfied all conditions for arbitrating this dispute. Section 4.6.1 of the Contract

26
Id. (emphasis added); see also Grand Homes 96, L.P. v. Loudermilk, 208 S.W.3d 696, 703 (Tex. App.—Fort
Worth 2006, pet. denied) (noting Texas courts hold that “matters of waiver and delay in requesting arbitration
should be presented to the arbitrator for resolution”); In re Weekley Homes, 985 S.W.2d 111, 114 (Tex. App.—San
Antonio 1998, no pet.) (holding plaintiffs’ “contention that [defendant’s] failure to perform a condition precedent
released them from the arbitration provision is a procedural question the arbitrator should address”); City of Lubbock
v. Hancock, 940 S.W.2d 123, 127 (Tex. App.—Amarillo 1996, no writ) (noting Section 171 of the Texas Civil
Practices & Remedies Code “does not require or authorize a court to address questions of procedural arbitrability
such as the satisfaction of conditions precedent to a right of arbitration”).
27
See Howsam, 537 U.S. at 84-85.
28
In re Gardner Zemke Co., 978 S.W.2d 624, 627 (Tex. App.—El Paso 1998, no pet.); see also John Wiley & Sons,
Inc. v. Livingston, 376 U.S. 543, 557 (1964) (holding that an arbitrator should decide whether the first two steps of a
grievance procedure were completed, where these steps are prerequisites to arbitration).
29
Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25 (1983); In re FirstMerit Bank, N.A., 52
S.W.3d 749, 753 (Tex. 2001) (“courts must resolve any doubts about an arbitration agreement's scope in favor of
arbitration”).

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 7 of 12

R.P. Appx. 318 7
provides that “[p]rior to arbitration, the parties shall endeavor to resolve disputes by

mediation . . .” The Parties completed that endeavor but resolution failed. As for any remaining

prerequisites, the Parties expressly agreed that:

Claims not resolved by mediation shall be decided by binding
arbitration which, unless the parties mutually agree otherwise,
shall be in accordance with the Construction Industry Rules of
the American Arbitration Association currently in effect. The
demand for arbitration shall be filed in writing with the other party
to the Contract and with American Arbitration Association.“ 30

The CIARAAA set forth the requirements to initiate a demand for arbitration. 31 Plaintiffs

do not contest Intellicenter’s compliance with these rules, and the Parties have not agreed to any

further or additional conditions to arbitration. 32 Thus, Plaintiffs’ procedural arbitrability

arguments—had they been properly raised—still ultimately fail.

5. SECTION 150.002 HAS NO BEARING ON THIS CASE.

A. Section 150.002 Does Not Apply to the Pending Arbitration.

While Intellicenter maintains that only the AAA may adjudicate this dispute, it offers a

glimpse of why Plaintiffs’ reliance on section 150.002 is misplaced. The plain language of the

statute reveals it does not apply to the Parties’ pending arbitration. The statute’s certificate of

30
Exhibit A, at 4.6.2 (emphasis added).
31
Those prerequisites are found in CIAAA R-4:
(i) The initiating party (“the claimant”) shall, within the time period, if any, specified in the contract(s), file
with the AAA a demand for arbitration, the administrative filing fee, and a copy of the applicable
arbitration agreement from the parties’ contract which provides for arbitration. Filing may be accomplished
through use of AAA WebFile, located at www.adr.org, or by filing the demand with any AAA office.
(ii) The claimant shall simultaneously provide a copy of the demand and the applicable arbitration agreement
to the opposing party (“the respondent”).
(iii) The demand shall include:
(a) The name of each party;
(b) The address for each party, including, if known, telephone and fax numbers and email addresses;
(c) If applicable, the names, addresses, telephone and fax numbers and, if known, email address of the
known representative for each party;
(d) A statement setting forth the nature of the claim including the relief sought and the amount involved;
(e) The locale requested, if the arbitration agreement does not specify one.

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 8 of 12

R.P. Appx. 319 8
merit requirements apply only to a “plaintiff.” 33 But Intellicenter is not a “plaintiff” by

definition; Intellicenter is a “claimant” in an arbitration proceeding. 34 Likewise, the statute only

applies to “complaints.” 35 Intellicenter did not file a “complaint,” but rather a “demand for

arbitration.” 36

If “plaintiff” was intended to include “claimant,” as Plaintiffs may ultimately contend, the

Texas Legislature would not consider amending the statute to change “plaintiff” to

“claimant.” But that is exactly what the Texas Legislature is currently considering. 37 Simply

put, Intellicenter is not a “plaintiff,” it did not file a “complaint” and the statute’s procedural

requirements do not apply. To hold otherwise ignores that courts are bound to interpret a statute

in accordance with “the plain meaning of the provision's words and terms.” 38

B. Section 150.002 Does Not Apply to Plaintiffs.

Nor do Plaintiffs qualify for the shelter they seek. The statute’s certificate of merit

requirements apply only in actions “arising out of the provision of professional services by a

licensed or registered professional.” 39 Because neither FS nor Clayco satisfy the statutory

definition of “licensed or registered professional,” section 150.002 has no bearing on this case.

33
Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a).
34
See Exhibit B.
35
Tex. Civ. Prac. & Rem. Code Ann § 150.002(a).
36
See Exhibit B.
37
2015 Tex. H.B. 1353, 84th Leg., R.S. (2015).
38
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999).
39
Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (emphasis added).

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 9 of 12

R.P. Appx. 320 9
 Texas Civil Practices & Remedies Code 150.001(1-a) defines “licensed or registered

professional as a licensed architect, licensed professional engineer …or any firm in which such

licensed or registered professional practices . . . .” The express terms of the Contract recognize

that “[Clayco] is not a licensed architect or engineer[,]” 40 and Hans Hecker, FS’s principal and

the individual who signed the Architect’s Certificate, 41 is not licensed by the Texas Board of

Architectural Examiners. 42 The statute plainly provides that a firm qualifies as a “licensed or

registered professional” only if its practicing architect does. 43 Because Hecker does not satisfy

the statutory definition of licensed or registered professional, neither does FS. Plaintiffs’

procedural posturing is fatally flawed, and their application to stay arbitration should be denied.

III.
CONCLUSION AND PRAYER

For these reasons, Defendant Intellicenter Dallas Investments LLP respectfully requests

that the Court deny Plaintiffs’ Application to Stay the Arbitration Case and further requests any

such additional or other relief to which it may show itself justly entitled, whether in law or in

equity.

40
See Exhibit A, at Article 3.
41
See Architect’s Certificate executed by Hans Hecker as principal of Forum Studio, Inc., a true and correct copy of
which is attached hereto as Exhibit C.
42
Intellicenter requests the Court take judicial notice of Hecker’s status by visiting:
http://www.tbae.state.tx.us/publicinformation/finddesignprofessional.
43
See id. § 150.001(1-a).
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 10 of 12

R.P. Appx. 321 10
 Respectfully submitted,

MUNSCH HARDT KOPF & HARR, P.C.

/s/ Greg Noschese
Greg C. Noschese
State Bar No. 00797164
John Devin Wagner
State Bar No. 24090451
500 North Akard Street, Suite 3800
Dallas, Texas 75201-6659
(214)855-7500 (Telephone)
(214)855-7584 (Facsimile)
gnoschese@munsch.com
dwagner@munsch.com

ATTORNEYS FOR DEFENDANT
INTELLICENTER DALLAS
INVESTMENTS LLP

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 11 of 12

R.P. Appx. 322 11
 CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of March, 2015, a true and correct copy of the
foregoing instrument was served on the following by Eserve:

Kenneth B. Chaiken
CHAIKEN & CHAIKEN, PC
5801 Tennyson Pkwy, Suite 440
Plano, TX 75024
(214)265-0250
(214)265-1537 (fax)
Email: kchaiken@chaikenlaw.com

R. Thomas Avery
BLITZ, BARDGETT & DEUTSCH, LC
120 South Central Avenue, Suite 1650
St. Louis, Missouri 63105
(314)863-1500
(314)863-1877 (Fax)
Email: rtavery@bbdle.com

/s/ Greg C. Noschese
Greg C. Noschese

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 12 of 12

R.P. Appx. 323
MHDocs 6013443_1 5554.38
12
 Exhibit A

R.P. Appx. 324 13
 AlA DocumentA111'" -1997
Standard Fonn of Agreement Between Owner and Contractor
where the basis for payment is the COST OF THE WORK PLUS A FEE with a negotiated
Guaranteed Maximum Price

AGREEMENT made as of the nineteenth day of Mu_in the year two thousand six
(In words, indicate day, month and year)

BETWEEN lhe Owner.
(Name, address and other infomUJtion) This document has important
legal consequences.
COnsultation wlth an attorney
Is encouraged with respect to
its completion or modlfrcatlon.
Intellicenter Dallas Investments. LLP This document is not intended for
8115 Preston Rd .. Suite #700 use In competitive bidding.
Dallas, IX 75225 AlA Document A201-1997,
and the Contractor. General Conditions of the
(Name, address and other informOJion) Contract for Construction, Is
adopted in this document by
ref8fenoe. Do not use with oth81'
general conditions unless this
document Is modified.
CJaypo. Inc.
This document has been
2199 Innerbelt Business Center Qrive
approved and endorsed by the
St. Louis. Missouri 63114
Associated Gen8fal Contractors
of America.
Tbe Project is:
(Name and location)

The design and construction of a 4-storv speculative office building. consistine of
aooroximately 211.637 gross square feet. located at 3701 Regent Blvd.. Irvim:. Texas.

The Architect is:
(Name, address and other information)
FS Ar<:hitecture. PC
c/o Forum Studios. Inc.
2199 Innerbelt Business Cemer Drive
St. Louis. Missouri 63114

Structural. mechanical. electrical and civil engineering services and the consulting services
of other Design Professionals for the Project will be proyided contractually Jbrough the
Architect except as follows: Topographic and boundary survey to be provided by Owner.

The Owner and Contractor agree as follows.

AlA Document At11TII-1897. Copyright Cl1920, 1925, 1951, 1958,1961, 1983, 1967, 1974, 1978,1987 and 1997 by The American Institute of Arclliteels.
All rigllb nt..ved. WARNING: Thla AlA• Document Is protected by U.S. Copyright Lew and lnt.ernatlooal Treaties. UniUthortred reproduction or 1
distribution ot this AlA• Document, or 1ny po1!11on ot it, may result In severe civil and criminal ~nallles, and wHI be prosecuted to the maximum
elCien1 possible under the law. This document was pwauced by AlA software at 15:11:31 on 05/19/2006 under Order No.1000182995~1 which expires on
712312006, and Ia not lor resale.
u..r NotH: Clayco A111- Koll - lntelllcenter · Dallas v3 (5-19•08) (2347931739)

R.P. Appx. 325 14
 ARTICLE 1 THE CONTRACT DOCUMENTS
The Contract Documents consist of Ibis specifically modified Agreement, the specifically modified AlA Document
A201-l997. General Conditions ef lfte Centfeet (G&fleftll, Supplemenwy enEI ether Cenditiens), C"A201"),
Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this
Agreement and Modifications issued after execution of this Agreement; these fonn the Cenlfaet; "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.

ARTICLE 2 THE WORK OF THIS CONTRACT
The Contractor shall fully execute the Work described in the Contract Documents, except to the extent specifically
indicated in the Contract Documents to be the responsibility of others.

ARTICLE 3 RELATIONSHIP OF THE PARTIES
The Contractor accepts the relationship of trust and confidence established by this Agreement and covenants with
the Owner to cooperate with the Architect and exercise the Contractor's skill 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 perfonn the Worlc in an expeditious and economical manner consistent with the
Owner's interests. Tbe Owner agrees to furnish and approve, in a timely manner, infonnation required by the
Contractor and to malce payments to the Contractor fn accordance with the requirements of the Contract Documents.
The Contractor will enter into a direct contractual relationship with the Architect. engineers. design/build
subcontractors and other design professionals (collectively. the "Desi&n Prof~ionals") to provide the design of the
Project The Owner acknowledges and agrees that the Contractor is not a licensed architect or engineer and is not
agreeing to pedorm serrjces which require such a license in the State in which the Project is located. Such services
will be oerfonned by ljcensed architects, engineers and design/build subcontractors under separate agreements. The
fees and expenses of all such design wofessjonals shall be included as part of the Cost of the Work. The Contractor
shall cause the Architect to prepare and submit as part of the Cost of the Worlc. the Construction Documents
necessary for the construction of the Project. The contractual obligations of such the Architect. engineers and other
deSign oorsons or entities are undertaken and performed in the interests of the Contractor, The agreements between
the Contractor and the Architect, engineers and other design professionals shall be in writing and lhese
IIIJl!ngements. including financial amngements with respect to the Project. shall be promptly and fully disclosed to
the Owner upon request. The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's
employees. subcontractors and their agents and employees. and other persons. including the Architect. engineers and
otber Design ProCessionals. oerformjng any ponion of the Contractor's obligations under thjs Anicle 3 wjth resoect
to the design of the Projecb The "Construction Documents" may include drawings. specifications. and other
documents and elec(!Qnlc data setting forth the reQuirements for construction of the Work. and shall (i) be consistel]t
with the intent of the Proiect as a whole. Cii) provide infonnation for the use of those in the building trades: and (iii)
include documents customarily required for re&ulatozy agency approvals. The fees and expenses of all such Design
Professionals shall be included as Part of the Contract Sum.

ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
§ 4.1 The date of commencement 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.
(lnsen the date ofcommencement, ifir differs from the date ofthis Agreement ar, if applicable, state that the date
will be fixed in a notice to proceed.)

February 21. 200§.

If, prior to commencement of the Work, the Owner requires time to file mortgages, mechanic's liens and other
security interests, the Owner's time requirement shan be as follows:

AlA Document A111™ -1997. Copyright @ 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects.
All rights rtl8rved. WARNING: Thl• AJA• Doo1.1ment Is proltellld by U.S. Copynghl lAw and International Treaties. Unauthorized reproduction or 2
distribution of this AlA* Dowment, or any portion ollt, m.y result In severe civil and criminal pe1111tles, and will be prosecuted to the maximum
extent possible under the law. This docoolent was proc:l.uced by AlA sottware at 15:11:31 oo 05/1912006 under Ordef No. 1000182995_1 which expires oo
712312006, and Is not for resale.
UHI' NotH: Clayco A111 - Koll . lntelicenter • Dallas v3 (5·19·06) (2347931739)

R.P. Appx. 326 15
 § 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 EI&¥S ffem December 26.
20()6. subject to extensions for any delays contemplated jn Paragraph 4.1 of this As.reement or Paragraph 8.3.1 of
the form the Genera} Conditions (AlA Document No. A201) attached he.reto. such completion date 9f
eemmeneeM&IIq er being l'eferred to herein as fellewe:the "Substantia) Completion Date."
(Insert number ofcalendar days. Alternatively, a calerukJr tklte 171(ly be used when coordinated with the date of
commencement. Unless staled elsewhere in the Contract Documents, insert an:y requirements for earlier Substantial
Completion ofcertain portions of the Work.)

I ~Ftien ef WeFk

, subject to adjustments of this Contract Time as provided in the Contract Documents.
(Insert provisions, if any, for liquidtlted damages relating to failure to complete on time, or for bonus payments for
early completion ofthe ~Work.!The initial consttuction schedule (the "Proiect Schedule" I for the Project is
attached hereto as Exhlbh "A

ARTICLE 5 BASIS FOR PAYMENT
§ 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 Tbe 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:
(State a lump sum. percentage of Cost ofthe Work or other provision for tktermining the Contractor's Fee, and
describe the method ofadjustment of the Contractor's Fee for changes in the Work. )

The "Contractor's Fee" shall be fow percent <4%) ofd!e Cost of the Work subject to an increase in the fee of four
oercent (4%) on all Change Orders. as defined in Paragraph 6.3 herein below. increasing the Cost of the Work. and
subject to a decrease in the fee of four oercent (4%>on all Change Orders decreasing the Cost of the Work.

§ 5.2 GUARANTEED MAXIMUM PRICE
§ 5.2.1 The sum of the Cost of theWorl< and the Contractor's Fee is guaranteed by the Contractor not to exceed
~Fourteen Mmion Three Hundred Fiftv-Three Thousand Nine Hundred Seventv-Tbree and 00/100 Dollars
($14.353.973.00). subject to additions and deductions by Change Order as provided in the Comract Documents.
Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price Cas the same may
be adjusted from time to time by Change Order or otherwjse. the "Guaranteed Maximum Pt:i6&:-I!i£!Ll...Costs which
would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement
by the Owner If. upon Final Completion. the OMP exceeds Cost of the Work plus the Contractor's Fee. then the
amount of such excess shall be referred to herein as the "savin~": and the savings shall be shared by the Owner and
the Conqactor as follows: sixty percent <60%l of the savings shall be retained by the Owner: and forsv oercent
(40%) of the savings sha11 be paid to the Contractor as a fee in addition to the QwaenContractor's Fee described in
Paragraph 5.1.2 above.
(Insert specific provisions if the Contractor is to participate in any savings.)

AlA Document A111 "' -1997. Copyright C 1920. 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by Tile Ame~can Institute ot ArcMects.
All rights rtHI'Yed. WARNING: This AtA• Document It prottcted by U.S. Copyright law and International Treatlu. Unauthorized reproduction or 3
distribution ol thls AlA,. Document. or any portlon of it, may result In severe clvJI and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was proc:luoed by AlA sollware at15:11:31 on0511912006 under Order f\10.1000182995_1 which elq)lres on
712312006, and is not for resale.
U~er Notes: Clayco A111 • Koll • lntelllceoter . Da~as v3 (5·19-QS) (2347931739)

R.P. Appx. 327 16
 § 5.2.2 The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the
Contract Documents and are hereby accepted by the Owner:
(State the numbers or other identification ofaccepted alternates. If decisions on other alternates are to be made by
the Owner subsequent to the execution of this Agreement, attach a schedule ofsuch other alternates showing the
amount/or each and the date when the amount expires.)

See Outline Soecificatioo & Drawings (the "Outline Specs") attached to thjs Contract as Exhibit "B" A'R8f'6 pfier 69R&eRt an the
easis ef east plus a fee~, the teRm "east" and "fee" as used In Seelien 7.3.:U ef AJA Dee11H1ent ,o\2Ql 1997 ami the
teRM "sesl6" ans "a reasenallle allawaaee fer a'ler4tead all(l JIFefit" as used iR Seeaen 7.le ef,r\IA DesYR'IeRt
J\2Q} 11}9:7 &hall have the Jlle8AiRg6 889igMd te lh8AI iA ,\lA l)eeyment J\201 199;7 QflQ shall net \le 199dified ey
,\nieles ~. 7 Md 8 ef lhis :\gfeeH!ent i\EijllsHHeal6 te s118eentFaet& awardeEI wilh the Owner's prier eeasent eR the
easis ef east pl11s a fee shall ee ealeulateEI in aeeef6aftee with the tefRls ef these sul:Jeena:aets.

~In calculating adjustments to the Guaranteed Maximum Pfi6&;-Price or the impact of any Change Order.
the terms "cost" and "costs" as used in the above-referenced provisions of AlA Document A20I-Im shall mean the
Cost of the Work as defined in Article 7 of this Agreement and the terms "fee" and "a reasonable allowance for
overhead and profit" shall mean the percentage for the Contractor's Fee as ElefiAed indicated in Section 5. I .2 of this
Agreement.
AlA Document A111"'- 1997. COpyright (11920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American lnstltuto or Architects.
All rtghts re~ WARNING: Thla AlA• Document Is protected by U.S. Copyright l aw and lnlarnatlonal Trutles. Unauthorized reproduction or 4
dl8trlbutlon of this AlA• Oowmem, or any portion of It, may ntaultln severe civil and criminal penahles, and wBI be prosecuted to the maximum
extent po$$ible under the law. This doc~nt was produced by AlA sollwara at 15:11:31 on 0511912006 under Order No.1000182995_1 which expires on
712312006. and Is not !of resale.
UNr Notes: Clayco A111 • Koll · lntelicenter • Dallas v3 (5-19·06) (2347931739)

R.P. Appx. 328 17
 § &.4 If 88 speeifie Jlfe'ASieR is II'Hid& iR SeetieA S.l fer adjwstmeRt ef£Re Ceamteler's Jiee iR me ease efehaflges iR
£fte WerlE, er if me eJiteat ef s~teh ehaRges is s11eh, ill the aggregate, that applieatieA ef the adjii51HieAI pre•tisieA& ef
SeeaeaS.l will eaYSe Slle&taAtial iRe~tvity te die CW.·Rer er CeREFeeter, the Centraeter's Fee shall ee 8EIIIita91y
IIEijY&teEI 9A die llasis ef tM rea estalllishee fer IRe eFigiR&l Werk, &RQ the Gwar&RIIIQ Maxi IIIII III PFiee shall ee
IIEijws~ aeeeftlingly.

§ 6.3 If Cal the Owner requests a change in the Work or Cbl the Contractor otherwise is entitled to a Change Order as
provided in the Contract Documents. then the Contractor Shall have the right to submit to the Owner a written
change order request (a ''CO Request"). which shall set forth such change to the Contract as shall be appropriate.
Such CO &guest shall be in writing and shall set forth the appr9j!riate changes. jf any. to the (i) Cost of the Work,
Cii> the Contractor's Fee. (iii) the Guaranteed Maximum Price. Civl the Contract Sum. Cvl the schedule of values.
(vjl the Substantial Completion Date. or Cviil any other provisions of the Contract. Each CO Request shall
constitute an offer by tbe Contractor to amend the Contract. If the Owner accepts such offer in writing and without
revision. then such offer and acceptance. together. shall constitute a "Change Orcler" which shall ooerate to amend
the Contract. If the Owoer ~Pts such offer subject to revisions not previously agreed to by the Contractor in
writing. then such "acceptance" shall constitute a counteroffer by the Owner to the Contractor which the Contractor
may ejther accept in writing or reject. If the Contractor accepts such counteroffer in writing. the same shall
constitute a written Change Order. The Contractor shall have no obligation or right to perform any changes in the
Work except Pursuant to a Change Order made as provided herein.

ARTICLE 7 COSTS TO BE REIMBURSED
§ 7.1 COST OF THE WORK
The tenn Cost of the Work shall mean costs necessarily incurred by tbe Contractor in the proper performance of the
Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior
~consent of the Owner. The Cost of theWork shall include only the items set forth in this Article 7.

§ 7.2LABOR COSTS
§ 7.2.1 Wages of construction workers directly employed by the Contractor to perform the construction of the Work
at the site or, with the Owner's app.roval, at off-site workshops.

§ 7.2.2 Wages or salaries of the Contractor's supervisory and administrative peFSeMel oersonnel, based upon the
time expended oo the Project when stationed at the site with the Owner's appFe"al.written aoproval. Time expended
on the Proiect by the Contractor's Project Manager for the Project shall be included as a Cost of the Work.
regardless of w)lere the Proiect Manager js located.
(If it is intended that the wages or salaries ofcertain personnel stationed at the Coruractor's principal or other
offices shall be included in the Cost ofthe Work, identify in Anicle 14 the personnel to be included and whether for
all or only pan oftheir time, and the rates at which their time will be charged to the Work. )

§ 7.2.3 Wages and salaries of the Contractor's supervisory or administrative personnel engaged, at factories,
workshops or on the road, in expediting the production or transportation of materials or equipment required for the
Work, but only for that portion of their time required for the Work.

S7.2.4 Costs paid or incurred by the Contractor for taxes, insurance, contributions, assessments and benefits required
by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits
such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on
wages and salaries included in the Cost of the Work under Sections 7.2.1 through 7.2.3.

§ 7.3 SUBCONTRACT COSTS
§ 7.3.1 Payments made by the Contractor to Subcontractors (including. without limitation. the Contractor jf the
Contractor or a division of the Contractor is also a subcontractor but only if approved in writing in advance by
Owner) in accordance with the requirements of the subcontracts.

§ 7.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION
§ 7.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in
the completed construction.
AlA Document A111 111 -1887. Copyrlgl)t C 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Archhects.
All rlghq reMMid. WAANING: This AlA• Doalment Is protected by U.S. Copyright Law and International Troatiee. Unauthorlled reproduction or 5
distribution of this AlA• Document, or any portion of It, may result In sewre civil and criminal penalties, and wMI be prosecuted to the maximum
mctent possible undet' the IIW. This document was produoed by AlA sottware at 15:11:31 on 05f1912006 under Order No.1000182995_1 which expires on
7/2312006, and iS not for resale.
Uter Noles: Clayoo A1 11 • Koll · lntelllcenter • DaPas v3 (5·19·06) (2347931739)

R.P. Appx. 329 18
 § 7.4.2 Costs of materials described in the preceding Section 7.4.1 in excess of those actually installed to allow for
reasonable waste and spoilage. Unused excess materials. if any, shall become the Owner's property at the
completion of the Work or, at the Owner's option, shall be sold by the Conttactor. Any amounts realized from such
sales shall be credited to the Owner as a deduction from the Cost of the Work.

§ 7.5 COSTS Of OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACIUTIES AND RELATED ITEMS
§ 7.5.1 Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials,
supplies, temporary facilities, machinery, equipment, and hand tools not customariJy owned by construction
workers, that are provided by the Contractor at the site and fully consumed in the performance of the Work; and cost
(less salvage value) of such items if not fully consumed, whether sold to others or retained by the Contractor. Cost
for items previously used by the Contractor shall mean fair market value.

§ 7.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by
construction workers that are provided by the Contractor at the site, whether rented from the Contractor or others,
and costs of lransportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and
quantities of equipment rented from the Contractor shall &e sttejeet te not exceed the OwAer's jJI'ier appreYal.fair
market value thereof.

§ 7.5.3 Costs of removal of debris from the site.

§ 7.5.4 Costs of document reproductions, facsimile transmissions and long-distance telephone calls, postage and
parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office.

§ 7.5.5 That portion of the reasonable expenses of the Contractor's personnel incurred while traveling in discharge of
duties connected with the Work.

§ 7.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, if approved in
advance by the Owner.

§ 7.6 MISCElLANEOUS COSTS
§ 7.6.1 That portion of insurance aRd beBEitnemiYRl5 that can be directly attributed to this Contract. The parties
stipulate and agree that Conttactor's cost for providing such insurance is six tenths of one oercent (0.75%) of the
Cost of the Work. excluding such cost of insurance. Ceatfasll

§ 7.6.2 Sales, consumer. use or similar taxes imposed by a governmental authority that are related to the Work.

§ 7.6.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the
Contractor is required by the Contract Documents to pay.

§ 7.6.4 Fees of laboratories for tests required by the Contract Documents, except those related to defective or
nonconforming Work for which reimbursement is excluded by Section 13.5.3 of AlA Document A201-l997 or other
provisions of the Contract Documents, and which do not fall within the scope of Section 7.7.3.

§ 7.&.5 Reyal~es aadlieease fees paid fer me \l&e af a p&Ftielllar design, flF968S9 er predttet AIEJIIif~ ey the Cana=ast
DesttHients; the sast ef aefenEiiRg &llil5 er elaiHI& fer iftft:iRgemeAt ef paleat figkss arisiag ~HI s11eh ~ttireRl8Rt ef
me Cea~Het Qe611ffl8Rl&; 8ll4 payHieA~:& IR&Eie in aeeer4anse with legal j11Eigmea111 agaiA6t tile CeA~Heter Feslll\ing
frefR stteli sttil!l er slaiHis and payt~~ents ef settlemeBtB Hlade with me OwRer's seASeAt. Hewe~·er. ~N~sh eests af legal
Elefeases, j11EigRl8RIS BAEI sealemeal!lsllall Ael be inelttEied ia the ea.lelllatieB ef tile Caalfaeter's Pee er &Y!Jjeet te lbe
~llfaRteee MallimttHI Priee.lfs116h reyalties, fees aREI eeStB are e*elwded by lbe last seAteaee ofSeeaeR 3.17.1 ef
AlA DeellH!eAt t'U91 1997 eF etiler previsieRs ef IRe Cealfeet Deellmefls, lheA tlley shall aet be iReludeEi in IAe
Cest ef the W8fk:
§ 7.6.5 Royalties and license fees paid for the use of a particular design. process or product required by the Conttact
Documents if such royalty and license fees are disclosed to Owner prior to Contractor commencing construction of
the Project and Owner approves same in writing.

§ 7.6.6 Data processing costs related to the Work.
AlA Document A111"' - 1097. Copyright @ 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American tnslitute ot Architects.
All rlghtereterved. WARNING: Thla AlA• Document 11 prottcttd by U.S. Copyright law 1nd International Treaties. Unauthorized reproduction or 6
dl• tributfon of this AlA"' Document, or any portion of It, may result In se,.re civil and criminal penalties, and will be pr0$eculed to the miJCimum
extent possible under the lew. ThiS document was produced by AlA SOftwale at 15:11:31 oo 05119/2006 IJ'Ider Order No.1000182995_1 which expires on
712312006, and is not lor resale.
UMr Notes: Clayoo A111 • Koll · \otelllcenter- Dallas vs (5·1 9-06) (2347931739)

R.P. Appx. 330 19
 § 7.6.7 Deposits lost for causes other than the Contractor's negligence or failure to fulfill a specific responsibility to
the Owner as set fonh in the Contract Documents.

§ 7.6.8 Legal, mediation and arbitration costs, including attorneys' fees, other than those arising from disputes
between the Owner and Contractor, reasonably incurred by the Contractor in the performance of the Work and with
the Owner's prior wrinen approval; which approval shall not be unreasonably withheld.

§ 7.6.9 Expenses incurred in accordance with the Contractor's standard personnel policy for relocation and
temporary living allowances of personnel required for the Work, if approved by the Owner.

§ 7.6.10 Payments by the Contractor Into reserves established unde! the CCIP for tbe Project for providing
Subcontractor insurance. The Contractor represents that the amount of such reserve payments shall not excHd the
Insurance premiums that reasonably would be Incurred for the Proiect In the absence of the CCIP.

§ 7.6.11 Other direct reasonable exoenses incurred by the Contractor in connection wjth the Project to !he extent not
described in this Section 7.6.

§ 7.6.12 Design service feel pavab!e to the Architect and any other design professionals engaged by Architect or the
Contractor to provide the detlan for the Proiect.

§ 7.7 OTHER COSTS AND EMERGENCIES
§ 7.7.1 Other costs incurred in the perfonnance of the Work if and to the extent approved in advance in writing by
the Owner.

§ 7.7.2 Costs due to emergencies incurred in taking action to prevent threatened damage, injury or Joss in case of an
emergency affecting the safety of persons and property, as provided in Section 10.6 of AlA Document A201-1997.

§ 7.7.3 Costs of repairing or correcring damaged er neHeeRfemtiRg Work executed by the ContraCtor, Subcontractors
or suppliers, provided that such damaged er HeneenfeRtliRg Work was not caused by aegligeRee NEGLIGENCE.
intentional misconduct or failure to fulfill a specific responsibility of the COntractor and only to the extent that the
cost of repairer eeffeetiell is not Eeeetterallle recovered by the Contractor from insurance, sureties, Subcontractors
or suppliers.

ARTICLE 8 COSTS NOT TO BE RBMBURSED
§ 8.1 The Cost of the Work shall not include:

§ 8.1.1 Salaries and other compensation of the Conttactor's personnel stationed at the COntractor's principal office or
offices other than the site office, except as specifically provided in Sections 7.2.2 and 7.2.3 or as may be provided in
Article 14.

§ 8.1.2 Blipeases Except to the extent provided in Article 7, expenses of the Contractor's principal office and offices
other than the site office.

§ 8.1.3 Overhead and general expenses, except as may be expressly included in Article 7.

§ 8.U The Contractor's capital expenses, including interest on the COnttactor's capital employed for the Work.

§ 8.1.5 Rental costs of machinery and equipment, except as specifically provided in Section 7.5.2.

§ 8.U Except as provided in Section 7.7.3 of this Agreement, costs due to the negligence orfailure to fulfill a
specific responsibility of the Contractor, Subcontractors and suppliers or anyone directly or indirectly employed by
any of them or for whose acts any of them may be liable.

§ 8.1.7 Any cost not specifically and expressly described in Article 7.

AlA Document A111"' -1m. Copyright c 1920, 1925, 1951,1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American lnSiltute ol AtcMeC1s.
All rlghte reserved. WARNING: This AlA• Oocumenl is protected by U.S. Copyright Law and International Treaties. Unauthorlztd reproduction or 7
di$tributlon of this AlA• Doc;ument, or any portion of it, may result in severe civil and criminal penallles, and wll be prosecuted to the mulmum
extent po$Sible under the law. This document was produced by AlA $011Ware 11115:11:31 on 0511912006 under Order No.1000182995_1 which expires on
7123/2006, and Is not lor resale.
Ueer NotH: ClaycoA111. Koll ·lnlelllcenter . Oallasv3 (5-19·06) (2347931739)

R.P. Appx. 331 20
 § 8.1.8 Costs, other than costs included in Change Orders approved by the Owner. that would cause the Guaranteed
Maximum Price to be exceeded.

§ 8.1.9 The m!ease. or waiyer or bondjng. of any liens or claims which may be claimed. threatened or tecorded so
long as Owner paid Contractor all undisputed amounts under this Contract

Costs recpvered by Contractor through insurance or otherwise.

ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS
§ 9.1 Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if ( 1) before making
the payment, the Contractor included them in an Application for Payment and received payment therefor from tbe
Owner, or (2) the Owner has deposited funds with the Contractor with which to make payments; otherwise, cash
discounts shall accrue to the Contractor. Trade discounts, rebates, refunds and amounts received from sales of
surplus materials and equipment shaD accrue to the Owner, and the Contractor shall make provisions so that they
can be secured.

§ 9.2 Amounts !hat accrue to the Owner in accordance with the provisions of Section 9.1 shall be credited to the
Owner as a deduction from the Cost of the Work.

ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS
§ 10.1The Owner hereby agrees that portions of the Work may be subcontracted to the Contractor or any division of
the Contractor if agreed to in writing jn advance by Qwner. Those portions of the Work that the Contractor does not
eYstemarily perform with the Contractor's own personnel (or which are not subcontracted to the Contractor or a
division thereof as aforesaid) shall be performed under subcontracts or by other appropriate agreements with the
Contractor. The Owner may designate specific persons or entities from whom lhe Contractor shall obtain bids. The
Contractor shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially
for the Work and shall deliver such bids to the ~The Owner shall then determine, with the advice of
the Cea~reeter aRdlhe Afeh:ileel, Contractor. which bids will be accepted. The Contractor shall not be required to
contract with anyone to whom the Contractor has reasonable objection. For each oortion of the Work having an
estimated cost in excess of $SO,QQ(), Contractor shall endeavor In good faith, usjng significant efforts. to obtain. and
orovide to Owner uoon reouest bids for said oortion of the Work {rom at least 3 qualified subcontractors. If
Contractor cannot obtain bids from 3 qualified bidders. Contractor shall jofonn Owner of this before entering into
the relevant Subcontract. Contractor shall not subcontract performance of all or any oortion of the Project under the
Contract Documents pursuant to any subcontract in excess of $50.000 without first notifying Owner of the intended
subcontracting and obtaining Owner's acceptance in writing of the subcontracting and the subcontractot which
acceptance or rejection shall be promptly given. If reouested by Owner. Contractor shall furnish Owner a copy of
the prooosest subc9ntract for Owner's review of the teonS and conditions thereof and shall oot execute such
subc9ntract until Owner has accepted such terms. Failure of Contractor to comply wi!h this Section may be deemed
to be a material breach of the Contract Documents, Contractor shall not remove any of the following major
subcontractors and replace any of such rnaior subcontractors with any other subcontractor without Owner's prior
written llJ>.P!"'VaJ. which shall not be unreasonably withheld or delayed. provided the proposed replacement
subcontractor has the experience, financial backing and history of quality cons!rUction for projects of the nature and
timing of the Projecl Thc: major subcontr.tctpn: that can only be replaced in accordance with the tc1regoing
procedures ure as follows; . (d) an affidavit executed by Owner .indicating the names of all
AlA Document AIH'M -11187. CopyTigtlt C 1920. 1925, 1951, 1953, 1961, 1963, 1967. 1974, 1978. 1987 and 1997 by The American Institute of AA:hltects.
All rtghn ,.....,.d.
WARNING: This AlA• Doeumen111 protected by U.S. Copyright Law a nd lnleroallonal Treaties. Unauthorized reproduction or g
dlstribullon of lhls AlA• Document, or any portion of 11, may result In severe civil and criminal penalties, and will be prosecuted to tile maximum
emn1 possible under the law. This documenl was prodU<:ed by AlA software at 15:11 :31 on O!i/1912006 under Order No.I 000182995_1 wtliell expires on
712312006, and Is no1 for resale.
U•r Notes: Clay<:o A111 • Koll - 1n1etacenter . oanas v3 (5·19-06) (2347931739)

R.P. Appx. 333 22
 subconrracrs and materialmen that have worked on the Project since the date qf the last Application for Payment
and (e) within 45 days after the foundation for the Project has been ooured. a foundation survey showing lhe
location of the foundation for the Project. along with the boundaries of tbe Land. the location of any flood plain and
all easements and other title exceptions affecting the Land and any set back or other building restrictions as set fonb
on the most recent Survey.

§ 12.1.5 Each Application for Payment shall be based on the most recent schedule of values submitted by the
Contractor and aPProved in writing by Qwner in accordance with the Contract Documen!S. The schedule of values
shall allocate the entire Guaranteed Maximum Price and the Contractor's current estimate of the Cost of the Work
among the various portions of the Work, except that the Contractor's Fee shaU be shown as a single separate item.
The schedule of values shall be prepared in such form and supponed by such data to substantiate irs accuracy as the
~may require. This schedule, unless objected to by the A:rehit.eet Owner. shall be used as a basis for
reviewing the Contractor's Applications for Payment.

§ 12.1.6 Applications for Payment shall show the percentage of completion of each ponion of the Work as of the end
of the period covered by the Application for Payment The percentage of completion shall be the lesser of (1) the
percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by
dividing (a) the expense that has actually been incurred by the Contractor on account of that portion of the Work for
which the Contractor has made or intends to make actual payment prior to the next Application for Payment by (b)
the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.

§ 12.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be
computed as follows:

.1 take that ponion of the Guaranteed Maximum Price properly anocable to completed Work as
determined by multiplying the percentage of completion of each ponion of the Work by the share of
the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.
Pending final detennination of cost to the Owner of changes in the Work, amounts not in dispute
shall be included as provided in Section 7.3.8 of AJ.A Qee11meRt 1\2~1 199+;the A201:

.2 add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in
advance by the Owner; suitably stored off the site at a location agreed upon in writing;

.3 add the Contractor's Fee, less retainage of ( ).The ten percent (1 0%) of the first 50% of the Cost pf
the Work (ysjng the Guaranteed Maximum Price as the Cost of the Work for this QUipOSe) and zero
percent (Q%) retainage tbereafter. The Contractor's Fee shall be computed upon the Cost of the Work
described in the two preceding Clauses at the rate stared in Section 5.1.2 or, if the Contractor's Fee is
stated as a fixed sum in that Subparagraph, shall be an amount that bears the same ratio to that fixed-
sum fee as the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of the
probable Cost of the Work upon its completion;

.4 subtract the aggregate of previous paymenrs made by the Owner;

.5 subtract the shonfall, if any, indicated by the Contractor in the documentation required by Section
12.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently
discovered by the Owner's accountants in such documentation;&Jl6

.6 subtract amounts, if any, for which the ~has withheld er a1111ifieEI not aporoved a
CeRiHeat.e fer Payment as provided in Section 9.5 of AlA Document A2~l 199+.A201-1997: and.

.7 Thiny <30) days after Substantial Completion of the Work. any retainage then held by the Owner
shall be due and payable to the Contractor provided that such payroent may be refluced by the cost of
completing any incomplete Work or the disputed amount ot any unsettled claims.

§ 12.1.8 Except with the Owner's prior approval, payments to Subcontractors shan be subject to retainage ef net less
lhaa ( ). as set forth jn Section 12. 1.7.3 3bove. The Owner and the Contractor shall agree upon a mutually
AlA OocUIMnt A111"" -18117. Copyright \01920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Arctlitects.
All rlghll re~~ervt. and (ii) a copy of as-built plans and an as-built survey for the Projecl
(jii) evjwaer's Felflles£; !he Geatra:eter ifteefS eests Elesel'$ed iR A.rtiele 7
BR~ Ret e~~elllded lly Artiele 8 te ea~et Elefeslive ar eeReeRfeFRiiag Werk, llte OwAer sllan reilllbll£6e tile
CeRtraetar sueh east& aRS the GaRtfa.eter's Fee applieallle lherete 9R the same llasis as if s11eh east& haEI bee&
iBeliMEI f.'fier te fiMl peyme&~ l111t aet ill &JHie86 ef !he Gu816Aieed MaMiiiiiiAI Pfiee. If tbe GeRtRieter has
paraeipated iB &a¥iBg& ae !!f9Yided in Seefies j.~. 1M ameiHit ef swah saviRgs shaU 13e ~eeale11late8 a~~EI &flfJFefJriate
eresit git;en te lbe OwRer in determining 1M Ret 8JR911Rt te l3e paid lly the 0vfRef te the GaRtraGter.

ARTICLE 13 TERMINATION OR SUSPENSION
§ 13.1 The Contract may be terminated by the Contractor, or by the Owner for convenience, as provided in Article
14 of AlA Document A201-1997. However, the amount to be paid to the Contractor under Section 14.1.3 of AlA
Document A201-1997 shall not ~the BHI911Rt !he Centraeter we11IEi 13e e&~i£1eEi Guaranteed Max.irnum
~to reeei¥e 11RE1er 8ee8ea 13.a llelew, e~teept that the CeRtraeter's Jlee shall be saleulateEi as if !he Wefk had
•B fltHy ea111pletedey dte Ceslfaeter, inelwEliRg a reaseaaele estimate ef the Cast ef !he Wefk fer WeI'll Ret
aet11ally ee111pletes.excee4cd.,

§ 13.2 The Contract may be terminated by the Owner for cause as provided in Article 14 of AlA Document A201-
J997. The amount. if any, to be paid to the Contractor under Section 14.2.4 of AlA Document A201-1997 shall not
cause the Guaranteed Max.imum Price to be exceeded, nor shall it exceed an amount calculated as follows:

§ 13.2.1 Take the Cost of the Work incurred by the Contractor to the date of tennination;

§ 13.2.2 Add the Contractor's Fee computed upon the Cost of the Work to the date of termination at the rate stated in
Section 5.1.2 or, if the Contractor's Fee is stated as a fixed sum in that Section. an amount that bears the same ratio
to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the
probable Cost of the Work upon its completion; and

§ 13.2.3 Subtract the aggregate of previous payments made by the Owner.

§ 13.3 The Owner shall also pay the Contractor fair compensation, either by purchase or rental at the election of the
Owner, for any equipment owned by the Contractor that the Owner elects to retain and that is not otherwise included
in the Cost of the Work under Section 13.2.1. To the extent that the Owner elects to take legal assignment of
subcontracts and purchase orders (including rental agreements), the Contractor shall, as a condition of receiving the
payments referred to in this Article I 3, execute and deliver all such papers and take all such steps, including the
legal assignment of such subcontracts and other contractual rights of the Contractor, as the Owner may require for
the purpose of fully vesting in the Owner the rights and benefits of the Contractor under such subcontracts or
purchase orders.

§ 13.4 The Work may be suspended by the Owner as provided in Article 14 of AlA Document A201-l997; in such
case, the Guaranteed Maximum Price and Contract Time shall be increased as provided in Section 14.3.2 of AlA

AlA Document A111l"M - 1997. Copyright ~ 19-20, 1925, 1951, 1958, 1961, 1963, 1967. 1974, 1978, 1987 and 1997 by The American lns«tute ot Archh&cts.
All rlghte reeerwd. WARNING: Thla AlA• Oocumemls protected by u.s. Copyright law and International Treatlea. Unauthorlltd reproduction o. 12
distribution of this AlA• Document. or any portion of It, may result In severe clvU and criminal penalties, and will be prosccu1ed to the meximum
extent possible under the law. This document was produced by AlA sottwan1 8115:11:31 on 0511912006 under Order No.1000182995_ t wNch expires on
712312006, and Is not tor resllle.
U•r Notes: Clayco At 11 • Koll · lnleNioenter · Dallas v3 (5·19.06) (2347931739)

R.P. Appx. 336 25
 Document A201-1997 except that the tenn "profit" shall be understood to mean the Contractor's Fee as described in
SeGlieAS Section 5.1.2 &Ad SeetieA 6.4 of this Agreement

ARTICLE 14 MISCB.LANEOUS PROVISIONS
§ 14.1 Where reference is made in this Agreement to a provision of AlA Document A201-1997 or another Contract
Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract
Documents.

§ 14.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated
below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is
located.
(Insert rate ofinterest agreed upon, if any.)

One oercent (1%) over the "prime rate" as reoorted in The Wall Street Journal.

(Usury laws and requirements under the Federal Truth in Lending Act, simiwr state and local consumer credit laws
and other regulations at the Owner's and Contractor's principal places ofbusiness, the location of the Project and
elsewhere may affect the validity ofthis provision. U!gal advice should be obtained with respect to deletions or
modifications, and also regarding requirements such as written disclosures or waivers.)

§ 14.3 The Owner's representative is:
(Name, address and other infonnation.)

Mike Rosamond
8411 Preston Road, Suite 700
Dallas. Texas 75225

With copy of all notices to:
Wayne Angel
8411 Preston Road. Suite 700
Dallas. Texas 75225

§ 14.4 Tbe Contractor's representative is:
(Name, address and other infonnation..)

Attn:Tom Sieckhaus
Clayco. Jnc.
2199 lnneffielt Business Center Drive
StLouis. Missouri 63114

At all times during the course of the Project Contractor shall orovide at the job site a qualified. competent and
res,ponsible suoervisor who shall be satisfactorv to Owner. The supervisor shall be Doug Gellner. Any cmoloyee of
Contractor reasonably deemed by Owner to be objectionable shall be removed from the job site promptly uoon
Owner request and shall be promptly replaced by Contractor at no extra exoense to Owner. Contractor shall
nevertheless retain all authoritv and control oyer its emo!oyees. including resoonsibilitv for all costs arising from
providing reasonable accommodations for its emp1oyees.

§ 14.5 Neither the Owner's nor the Contractor's representative nor the supervisor shall be changed without ten days'
written notice to the other p&fty:party and only wjth the other partv's approval. which approval may not be
unreasonably wjthbeld or delayed.
AlA Document A111'"" - 1997. Copyright @ 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Arcllltects.
AU rfghta re•rved. WARNING: Thla AlA" Document Is proleeted by U.S. Copyright Law and fnternlltlonal Treatlea. Unauthorized reproduction or 13
distribution ot thla AlA" Document, or any portion ot It, may nlliiUitln severe clvU and criminal penelliM, and will be prosecuted to the maximum
extent possible under the taw. This document was produced by AlA soltwat& at 15:11:31 on05119/2006 under Order No.t000182995_1 which expires on
712312006, and is not tor resale.
u - Not": Clayco A111 • Koll • lnteHioenter · Dallas V3 (5-19·06) (2347931739)

R.P. Appx. 337 26
 § 14.6 Other provisions:

.I If there is any conflict among the Contract Documents. then the following priority shall be given
to the same: firsl. the provisjons of any Change Orders, Change Directives or other modifications shall
govern. with later modifications contrnmng over earlier modifications. second. this Agreement . (iv) automobile liability coverage of not less than $1.000,()()(). (y) umbrella policy of commercial
general liabjlity insurance wjth limits of not less than $10.000,()()(). Such insurance policies sball be issuec! by
insurance companies with a rating of not less than A-Class ym in the latest edition of Best's Insurance Guide.
Owner and Prudential Insurance Company of America ("Prudential") shall be a named additional insured partv on
all such insurance poljcjes. and Contrac!Qr shall deliver to Owner certified copies of such insurance oolicies,
together with certificates evidencing the coverage of Owner and Prudential under all such insurance policies and a
certified copy of the declarations page to each of the insurance policies. promptly uoon issuance or ~newal thereof.

Simultaneously with the execution hereof, Contractor shall enter into the Construction Indemnity and Assignment in
the form ·attached hereto as Exhibit "D".

AlA Document A1HTM -1997. COpyright tC 1920, 1925, 1951, 1958. 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Arcl'!nects.
All right• reservtd. WARNING: This AlA• Oooomentlt protected by U.S. Copyright Law and 1nterna11onll Trea1les. Un.,thor1%ed reproduction or 15
dislrllxltlon olthls AlA• Document, or any portion of It, may result in severe civil and criminal penahles, and wMI be proteeuted to the maximum
exten1 possible under 1he law. This docU'Il90t was produced by AlA software a115:11:31 on 05/1912006 under Order No.1000182995_ 1 which expiM on
712312006, ancl Is n01 for resale.
u- Note1: Clayco A111 • KOII · lntelicenter • Dallas v3 (S·19·06) (2347931739)

R.P. Appx. 339 28
 This Agreement is entered into as of the day and year first written above and is executed in at least three original
copies, of which one is to be delivered to the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.

Exhibit "A"- Project Schedule
Exhibit "B"- Ou!line Specifications & Drawings
Exhibit "C" - Clayoo Control Budget
Exhibit ''D"- Construction ln.
l!s paanC(
By: KPC-HPB Inyesupeots Pallas GP. u.c.
jts genqaJ partner
Bv: Koll Development Company I. !.,P.. Member
By; swy, U.C. Mana&jpg Oencnl Partner

OWNER (Signature)

(Printed name and title) (Printed name and title)
VIN" /It~!...,- ~~ OAPtffl4

AlA Document A111""'-1997. COpyright C 1920, 1925, 1951, 1958, 1961, 1963, 1987, 1974, 1978, 1987 an:! 1997 by The American lnstitule of Architects.
All rigllll ,...rved. WARNING: This AlA• Document is PfOiecled by U.S. Copyright Law and lnterollllonal Treatlte. Unauthorized reproduction or 16
distribution of this AlA• Document, or any portion ot It, may reeult in severe civil and criminal penalties, and will be proseculed to the maximum
extent possible under the law. This document was produced by AlA sollWIIre at 15:11:31 on 0511912006 under Order No.1000182995_t which expires on
712312006, and Is no1 for resale.
User Notte: Clayco A111 - Koll • lntelllcenter. Dallas v3 (5·19·06) (2347931739)

R.P. Appx. 340 29
 AlA Document A201™- 1997
General Conditions of the Contract for Construction

for the following PROJECT:
(Name and location or address):

The design and construction of a 4-story speculative office building. consisting of
approximately 211.637 gross square feet. located at 3701 Regent Blvd., Irving, Texas. T~is document has Important
legal consequences.
THE OWNER: Consultation with an attorney
(Name and address): Is encouraged with respect to
its completion or modification.

lntellicenter Dallas Investments. LLP This document has been
approved and endorsed by The
81 15 Preston Rd., Suite #700
Associated General Contractors
Dallas. TX 75225
of America

THE ARCHITECT:
(Name and address):

FS Architecture. PC
c/o Forum Studios. Inc.
2199 Innerbelt Business Center Drive
St. Louis, Missouri 63114

TABLE OF ARTICLES

1 GENERAL PROVISIONS

2 OWNER

3 CONTRACTOR

4 ADMINISTRATION OF THE CONTRACT

5 SUBCONTRACTORS

6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS

7 CHANGES IN THE WORK

8 TIME

9 PAYMENTS AND COMPLETION

10 PROTECTION OF PERSONS AND PROPERTY

11 INSURANCE AND BONDS

AlA Document A201"' -1997. Copyright © 1911 . 1915, 1918, 1925, 1937, 1951, 1956, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Ia protected by U.S. Copyright Law and International Treatlea. Unauthorized 1
reproduction or distribution of this AlA• Document, or any portion ollt, may result In severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the lew. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7/23/2006, and is not for resale.
User Notes: Ciayeo A201 - Koll · lntelllcenter - Dallas v2 (5-19•06) (986536188)

R.P. Appx. 341 30
12 UNCOVERING AND CORRECTION OF WORK

13 MISCELLANEOUS PROVISIONS

14 TERMINATION OR SUSPENSION OF THE CONTRACT

AlA Document A201 111 -1997. Copyright Clil1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserv~ WARNING: This AlA• Document Ia protected by U.S. Copyright Law and lntema1lonal TreaUes. Unauthorized 2
reproduction or distribution of this AlA Document, or any portion of It, may reault In severe c:lvll and criminal penellles, and will be prosecuted to the
maximum eJCtent poulble under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll -lntalliconter · Dallas v2 (5· 19·06) (986536188)

R.P. Appx. 342 31
INDEX 3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5
(Numbers and Topics in Bold are Section Headings) Architect's Appmvals
2.4, 3.1.3, 3.5.1' 3.10.2, 4.2.7
Acceptance of Nonconforming Work Architect's Authority to Reject Work
9.6.6, 9.9.3, 12.3 3.5.1, 4.2.6, 12.1.2, 12.2.1
Acceptance of Work Architect's Copyright
9.6.6,9.8.2, 9.9.3, 9.10.1, 9. 10.3, 12.3 1.6
Access to Work Architect' s Decisions
3.16, 6.2. 1, 12.1 4.2.6, 4.2.7, 4.2. 11 , 4.2.12, 4.2.13, 4.3.4, 4.4. 1' 4 .4.5,
Accident Prevention 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1 , 9.2, 9.4,
4.2.3, 10 9.5.1,9.8.4, 9.9. 1, 13.5.2, 14.2.2,14.2.4
Acts and Omissions Architect's Inspections
3.2, 3.3.2, 3. 12.8, 3.18, 4.2.3, 4.3.8, 4.4.1, 8.3.1, 4.2.2, 4.2.9, 4 .3.4, 9 .4.2, 9.8.3, 9.9.2, 9. 10.1, 13.5
9.5.1, 10.2.5, 13.4.2, 13.7, 14.1 Architect's lnstructions
Addenda 3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1' 12.1 , 13.5.2
1.1.1,3.11 Architect' s Interpretations
Additienal Costs, Claims for 4.2.11, 4.2. 12, 4.3.6
4.3.4, 4.3.5, 4.3.6, 6.1. I, 10.3 Architect's Project Representative
Additional Im;pections and Testing 4.2. 10
9.8.3, U.2.1, 13 .5 Architect's Relationship with Contractor
Additional Time, Claims for 1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3. 1, 3.4.2, 3.5.1 ,
4.3.4, 4.3.7, 8.3.2 3.7.3, 3.10, 3. 11, 3.12, 3. 16, 3.18, 4.1.2, 4.1 .3, 4.2,
ADMINISTRATION OF THE CONTRACT 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1 , 9.2, 9.3, 9.4,
:u .3, 4, 9.4, 9.5 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12,
Advertisemeot or Invitation to Bid 13.4.2, I 3.5
l. L.l Architect' s Relationship with Subcontractors
Aesthetic Effect ] .1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4, 11.4.7
4.2.13,4.5.1 Architect's Representations
Allowances 9.4.2, 9.5.1, 9 .10.1
3.8 Architect' s Site Visits
All-fisk lnsurance 4.2.2, 4.2.5, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9. J0.1 ,
11 .4. 1.1 13.5
Applications for Payment Asbestos
4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5. 1, 9c6.3, 9.7.1 , 9.8.5, 10.3.1
9.1 0, 11.1.3, 14.2.4, 14.4.3 Attorneys' Fees
Approvals 3. 18.1 , 9.10.2, 10.3.3
2.4, 3.1.3, 3.5, 3.10.2, 3. 12, 4.2.7, 9.3.2, 13.4.2, 13.5 Award of Separate Contracts
Arbitration 6.1.1, 6.1.2
4.3.3, 4.4, 4.5.1' 4.5.2, 4.6, 8.3.1, 9.7.1' 11.4.9, A ward of Suibcontracts and Other Contracts for
11.4.10 Portions of the Work
Architect 5.2
4.1 Basic Definitions
Architect, Definition of 1.1
4.1.1 Bidding Requirements
Architect, Extent of Authority l.l.l, 1.1.7, 5·.2. 1, JJ.5. J
2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.6, 7.4, Boiler and Machinery Insurance
9.2, 9.3.1 , 9.4, 9.5, 9.8.3, 9.10. 1, 9.10.3, 12.1 , 12.2.1 , 11.4.2
13.5.1, 13.5.2, 14.2.2, 14.2.4 Bonds, Lien
Architect, Limitations of Authority and 9 . 10.2
Responsibility Bonds, Performance, and Payment
2. 1.1, 3.3.3, 3.12;4, 3.12.8, 3. I 2.1 0, 4. 1.2, 4.2.1, 7.3.6.4, 9.6.7. 9.10.3, 11.4.9, 11.5
4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12, 4.2.13, 4.4, Building Permit
5.2.1 ' 7.4, 9.4.2, 9.6.4, 9.6.6 3.7.1
Architect's Additional Services and Expenses Capitalization
2.4, 11.4. 1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4 1.3
Architect's Adminis~ratioo of the Contract Certificate of Subst.antial Completion

AlA Document A201m -1997. Copyright © 1911. 19t 5, 19t8, 1925. 1937, 1951, 1958. 1961. 1963, 1966, t 970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and International Treaties. Unauthorb:ed 3
reproduction or dfatrlbullon of this AlA• Document, or any portion of It, may result In severe c:tvlland c:rlmlnal penalties, and will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14.:42:43 on 05119/2006 under Order No.1000t 82995_ t which
expires on 7/23/2006, and is not tor resale.
User Notes: Clayco A201 • Koll · lntelllcenter · Dallas v2 (5· 19·06) (986536188)

R.P. Appx. 343 32
9.8.3, 9.8.4, 9.8.5 1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6.4,
Certificates for Payment 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1,
4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6. I, 9.6.6, 9.7.1 , 9.10. 1, 13.5.2, 13.6, 14.1.) , 14.2.1.3
9.10.3, 13.7, 14.1.1.3, 14.2.4 Concealed or Unknown Conditions
Certificates of Inspection, Testing or Approval 4.3.4, 8.3.1 , 10.3
13.5.4 Conditions of the Contract
Certificates of Insurance 1.1.1 , 1.1.7, 6.l.l, 6.1.4
9.1 0.2, 11.1.3 Consent, Written
Change Orders 1.6. 3.4.2, 3.12.8. 3.14.2, 4.1 .2, 4.3.4, 4 ..6.4, 9.3.2,
1.1.1 , 2.4.1' 3:4.2, 3.8.2.3, 3. 11.1 , 3.12.8, 4.2.8, 4.3.4, 9.8.5, 9.9.1, 9.1 0.2, 9.1 0.3, 11.4.1 , 13.2, I 3.4.2
4.3.9, 5.2.3, 7.1, 7.2, 7.3, 8.3.1, 9.3.U, 9.10.3, CONSTRUCTION BY OWNER OR BY
I I .4.1.2, I 1.4.4, 11.4.9, 12.1.2 SEPARATE CONTRACTORS
Cbange Orders, Definition of 1.1.4, 6
7.2.1 Construction Change Directive, Definition of
CHANGES IN THE WORK 7.3.1
3.ll, 4.2.8, 7, 8.3. 1, 9.3.1.1, 11.4.9 Construction Change Directives
Claim, Definition of 1.1.1, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.).1
4.3.1 Construction Schedules, Contractor's
Claims and Disputes 1.4. 1.2, 3.1 0, 3.12. I ' 3.12.2, 4.3.7 .2, 6.1.3
3.2.3, 4.3, 4.4, 4.5, 4.6, 6.l.l, 6.3, 7.3.8, 9.3.3, 9.10.4, Contingent Assignment of Subcontracts
10.3.3 5.4, 14.2.2.2
Claims and Timely Assertion of Claims Continuing Contract Performance
4.6,5 4.3.3
Claims for Additional Cost Contract, Definition of
3.2.3, 4.3.4, 4.3.5, 4.3.6, 6. I .I , 7 .3.8, 10.3.2 1.1.2
Claims for Additional Time CONTRACT, TERMINATION OR
3.2.3, 4.3.4, 4.3.7, 6.1. I , 8.3.2, 10.3.2 SUSPENSION OF THE
Claims for Concealed or Unknown Conditions 5.4.1.1, 11.4.9, 14
4.3.4 Contract Administration
Claims for Damages 3.1.3, 4. 9.4, 9.5
3.2.3, 3.18, 4.3. 10, 6.1.1, 8.3.3, 9.5.1 , 9.6.7, 10.3.3, Contract Award and Execution, Conditions Relating
1 J.l.l, 11.4.5, 11.4.7, 14.1.3, 14.2.4 to
Claims Subject to Arbitration 3.7.1,3.10,5.2,6. 1, 11.1.3, 11.4.6, 11.5.1
4.4.1 , 4.5.1, 4.6.1 Contract Documents, The
Cleaning Up 1.1, 1.2
3.15,6.3 Contract Docu ments, Copies Furnished and Use of
Commencement of Statutory Limitation Period 1.6, 2.2.5, 5.3
13.7 Contract Documents, Definition of
Commencement of the Work, C6nditions Relating to 1.1.1
2.2.1, 3.2.1 ' 3.4.1' 3.7. 1' 3.10.1, 3.12.6, 4.3.5, 5.2.1' Contract Sum
5.2.3, 6.2.2, 8.1 .2, 8.2.2, 8.3.1' 11.1, 11.4.1' 11.4.6, 3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 9.1, 9.4.2,
11.5.1 9.5. 1.4, 9.6.7, 9.7, 10.3.2, ll.4.1, 14.2.4, 14.3.2
Commencement of the Work, Definition of Contract Sum, Definition of
8.1.2 9.1
Communications Facilitating Contract Contract Time
Administration 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8. 1.1 , 8.2,
3.9.1,4.2.4 8.3.1 , 9.5.1, 9.7, 10.3.2, 12.1.1, 14.3.2
Completion, Conditions Relating to Contract Time, Definition of
1.6.1 ' 3.4.1, 3.11, 3.15, 4 .2.2, 4.2.9, 8.2, 9.4.2, 9.8, 8.1.1
9.9.1, 9.10, 12.2, 13.7, 14.1.2 CONTRACTOR
COMPLETION, PAYMENTS AND 3
9 Contractor, Definition of
Completion, Substantial 3.1, 6.1.2
4.2.9, 8.1.1 , 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9. 10.3, Contractor's. Construction Schedules
9.10.4.2, 12.2, 13.7 1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3
Compliance with Laws Contractor's Employees

AlA Document A20f'"' -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document 11 protected by U.S. Copyright Law and International Treaties. Uneulhor~ed 4
reproduction or distribution of thll AlA• Document, or any portion ollt, may result In severe civil and criminal penalties, and will be prosecuted to the
maximum extent poaslble under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 712312006, and is not lor resale.
User Notes: Clayco A201 • Koll • lntellicenter • Dallas v2 (5·19.06) (986536188)

R.P. Appx. 344 33
 3.3.2, 3.4.3, 3.8. 1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 6.2.5, 3.14
I 1.1.1 , 11.4.7, 14.1, 14.2. 1.1 , Damage to Construction or Owner or Separate
Contractor 's Liability Insurance Contractors
11.1 3. 14.2, 6.2.4, 9.2.1.5, I 0.2. 1.2, 10.2.5, 10.6, 11.1 ,
Contractor's Relationship with Separate Contractors I I .4, 12.2.4
and Owner's Forces Damage to the Work
3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2, 12.2.4 3.14.2, 9.9.1.10.2.1.2, 10.2.5, 10.6, 11.4, 12.2.4
Contractor's Relationship with Subcontractors Damages, Claims for
1.2.2, 3.3.2, 3.18.1 , 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2, 3.2.3, 3. 18, 4.3.10, 6.1 . 1. 8.3.3, 9.5.1, 9.6.7, 10.3.3,
11.4. 1.2, 11.4.7, 11.4.8 II. I. I. 11.4.5, 11.4.7, 14. 1.3, 14.2.4
Contractor's Relationship with the Architect Damages for Delay
I. I .2, 1.6, 3.1.3, 3.2. 1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 6. 1.1 , 8.3.3, 9 .5. 1.6, 9.7, 10.3.2
3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4 .1.2, 4.1.3. 4.2, Date or Commencement of the Work, Definition of
4.3.4, 4.4. 1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 8.1.2
9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12. Date of Substantial Completion, Definition of
13.4.2, 13.5 8. 1.3
Contractor's Representations Day, Definition of
1.5.2, 3.5.1, 3. 12.6, 6.2.2, 8.2.1 , 9.3.3, 9.8.2 8.1.4
Contractor's Responsibility for Those Performing the Decisions of the Architect
Work 4.2.6, 4.2.7, 4.2.11' 4.2. 12. 4.2. 13, 4.3.4, 4.4. 1' 4.4.5,
3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1 ' 6.1.3, 6.2, 6.3, 9.5. 1, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3. 1, 9.2, 9.4,
10 9.5.1. 9.8.4, 9.9. 1, 13.5.2, 14.2.2, 14.2.4
Contractor's Review of Contract Documents Decisions to Withhold Certification
1.5.2, 3.2, 3.7.3 9.4 . 1, 9.5, 9.7, 14. 1.1.3
Contractor' s Right to Stop the Work Defective or Nonconforming Work, Acceptance,
9.7 Rejection and Correction of
Contractor's Right to Terminate the Contract 2.3, 2.4, 3.5.1, 4.2.6. 6.2.5, 9.5. 1, 9.5.2, 9.6.6, 9.8.2,
4.3.10, 14. 1 9.9.3, 9.10.4, 12.2.1. 13.7. 1.3
Contractor's Submittals Defective Work, Definition of
3.10, 3. 11 , 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 3.5.1
9.8.2, 9.8.3, 9.9.1, 9.10.2, 9. 10.3, 11.1.3, 11.5.2 Definitions
Contractor's Superintendent 1.1 , 2.1.1, 3.1, 3.5.1, 3.12. 1, 3.12.2, 3.12.3, 4.1.1,
3.9, 10.2.6 4 .3.1, 5. 1, 6.1.2, 7 .2. 1, 7.3. 1, 7.3.6, 8.1, 9.1 , 9.8. 1
Contractor's Supervision and Construction Delays and Extensions of T ime
Procedures 3.2.3, 4.3.1 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1 , 7.3.1 ,
I

1.2.2, 3.3, 3.4, 3.12.1 0, 4.2.2, 4.2.7' 4.3.3, 6.1 .3, 7.4.1, 8.3, 9.5. 1, 9.7. 1, 10.3.2, 10.6.1, 14.3.2
6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, 10, 12, 14 Disputes
Contractual Liability Insurance 4.1.4, 4.3, 4.4 , 4.5, 4.6, 6.3, 7.3.8
ll.J . 1.8, 11.2, I 1.3 Documents and Samples at the Site
Coordination and Correlation 3.11
1.2, 1.5.2, 3.3.1 , 3. 10, 3.12.6, 6.1.3, 6.2.1 Drawings. Defmition or
Copies Furnished of Drawings and Specifications 1. 1.5
1.6, 2.2.5, 3.11 Drawings and Specifications, Use and Ownership of
Copyrights 1.1.1 , 1.3, 2.2.5, 3.1 I, 5.3
1.6,3. 17 Effective Date of Insurance
Correction of Work 8.2.2, 11.1.2
2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3, 9.9.1 ' 12.1 .2, Emergencies
12.2, 13.7.1.3 4.3.5, 10.6, 14.1.1.2
Correlation and Intent of the Contract Documents Employees, Contractor's
1.2 3.3.2, 3.4.3, 3.8.1 , 3.9, 3.18.2. 4.2.3, 4.2.6, 10.2, 10.3,
Cost, Definition of 11.1.1 , 11.4.7. 14.1 ' 14.2.1.1
7.3.6 Equipment, Labor, Materials and
Costs I. 1.3, 1.1.6, 3.4, 3.5. 1, 3.8.2, 3.8.3, 3.12, 3.13, 3. 15.1 ,
2.4, 3.2.3, 3.7.4, 3.8.2, 3. 15.2, 4.3, 5.4.2, 6.1.1 ' 6.2.3, 4.2.6, 4.2.7, 5.2.1 ' 6.2.1 , 7 .3.6, 9.3.2, 9.3.3, 9.5. 1.3.
7.3.3.3, 7.3.6, 7.3.7, 7.3.8, 9. 10.2, 10.3.2, 10.5, 11.3, 9. 10.2, 10.2. 1, 10.2.4, 14.2.1.2
11.4, 12.1, 12.2.1.12.2.4, 13.5, 14 Execution and Progress o f the Work
Cutting and Patching
AlA Document A201.,. - 1997. Copyright and Contractors
10.2.5, 11.4 1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3.1 '
PROTECTION OF .fERSONS AND PROPERTY 11.4.7, 12. 1.2, 12.2.5
10 Shop Drawings, Definition of
Regulations and Laws 3.12.1
1.6, 3.2.2, 3.6, 3.7, 3. 12.10, 3. 13, 4.1.1, 4.4.8, 4.6, Shop Drawings, Product Data and Samples
9.6.4, 9.9.1, 10.2.2, lJ.l , 11.4, 13.1, 13.4, 13.5. 1. 3.11 , 3.12. 4.2.7
13.5.2, 13.6, 14 Site, Use of
Rejection of Work 3.13, 6.1.1, 6.2.1
3.5.1 , 4.2.6, 12.2.1 Site Inspections
Releases and Waivers of Liens 1.2.2, 3.2.1 , 3.3.3, 3 .7. J, 4.2, 4.3.4, 9.4.2, 9.10.1 ' 13.5
9. 10.2 Site Vi.sits, Architect's
Representations 4.2.2, 4.2.9, 4 .3.4, 9.4.2, 9.5.1 , 9.9.2, 9.10.1 , .1 3.5
1.5.2, 3.5.1 , 3.12.6, 6.2.2, 8.2.1 t 9.3.3, 9.4.2, 9.5. I I Special Inspections and Testing
9.8.2, 9.10.1 4.2.6, 12.2.1 , 13.5
Represe ntatives Specifications, Definition of the
2.1.1 ' 3. 1.1' 3.9, 4.1.1, 4.2. 1, 4.2.10, 5 . I. I, 5.1.2, 1.1 .6
13.2.1 Specifications, The
Resolution of Claims and Disputes 1.1.1 , 1.1.6, 1.1.7, 1.2.2, 1.6, 3. 11, 3.1 2. I 0, 3.17
4.4, 4.5, 4.6 Statute of Limitations
Responsibility for Those Petforming toe Work 4.6.3, 12.2.6, 13.7
3.3.2, 3.18, 4.2.3, 4.3.8, 5.3. 1, 6. 1.3, 6.2, 6.3, 9.5. I , Stopping the Work
10 2.3, 4.3.6, 9.7, 10.3, 14.1
Retainage Stored Materials
9.3.1 , 9.6.2, 9.8.5, 9.9.1 , 9.10.2, 9. 10.3 6.2.1 , 9.3.2, 10.2.1.2, 10.2.4, I 1.4.1.4
Review of Contract Documents and Field Subcontractor, Definition of
Conditions by Contractor 5.1.1
1.5.2, 3.2, 3.7.3, 3.12.7. 6.1.3 SUBCONTRACTORS
AlA Document A201.,.,. -1997. Copyright © 1911 , 1915, 1918, 1925. 1937. 1951 , 1958. 1961. 1963, 1'966, 1970, 1976, 1987 and 1997 by The Ameriean
Institute of Architects. All rights reserved. WAR NING: Thia At A• Document Ia protected by U.S. Copyright L.w and International Treatlea. Unauthorized 8
reproduction or distribution of this AIA8 Document, or any portion ollt, may result In aevere civil and criminal penalties, and will be prosecuted to the
maJCimum edent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7/23/2006, and is not for resale.
User Notes: Clayco A201 · Koll • lntellicenter · Dallas v2 (5·19·06) (986536188)

R.P. Appx. 348 37
5 TERMINATION OR SUSPENSION OF THE
Subcontractors, Work by CONTRACT
1.2.2, 3.3.2, 3.12.1 I 4.2.3, 5.2.3, 5.3, 5.4, 9.3. 1.2, 14
9.6.7 Tests and Inspections
Subcontractual Relations 3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9. 9.4.2, 9.8.3, 9.9.2,
5.3, 5.4, 9.3.1.2, 9.6, 9.10 10.2.1, 11.4 .7, 11.4.8, 14.1, 9.10.1 , 10.3.2, 11.4.1.1 , 12.2. 1,13.5
14.2,1, 14.3.2 TIME
Submittals 8
1.6, 3. JO, 3. 11 , 3.12, 4.2.7, 5.2. 1, 5.2.3, 7.3.6, 9.2, Time, Delays and Extensions of
9.3. 9.8, 9.9.1, 9. 10.2, 9.10.3, 11.1.3 3.2.3, 4.3. 1I 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1 I 7.3. 1)
Subrogation, Waivers of 7.4. 1, 8.3. 9.5.1, 9 .7. 1, 10.3.2, 10.6.1, 14.3.2
6. 1.1 , 11.4.5, 11.4.7 Time Limits
Substantial Completion 2.1.2, 2.2, 2.4, 3.2.1, 3.7.3. 3.10, 3. J I , 3 .12.5, 3.15.1.
4.2.9, 8.1.1, 8.1.3. 8.2.3, 9.4.2, 9.8, 9.9.1' 9.10.3, 4.2, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4,
9.10.4.2, 12.2, 13.7 8.2, 9.2, 9.3.1' 9.3.3, 9.4.1' 9.5, 9.6, 9.7, 9.8, 9.9,
Substantial Completion, Defi,ni~on of 9.10, 11.1.3, ]1.4.1.5, 11.4.6, 11.4.10, 12.2, l3.5,
9.8.1 13.7, 14
Substitution of Subcontractors Time Limits on Claims
5.2.3, 5.2.4 4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6
Substitution of Architect Title to Work
4.1.3 9.3.2, 9.3.3
Substitutions of Materials UNCOVERING AND CORRECTION OF
3.4.2, 3.5.1, 7,3.7 WORK
Sub-subcontractor, Definition of 12
5.1.2 Uncovering of Work
Subsurface Conditions 12.1
4.3.4 Unforeseen Conditions
SuccessOrs and Assigns 4.3.4, 8.3.1, I 0.3
13.2 Unit Prices
Superintendent 4.3.9, 7 .3.3.2
3.9, 10.2.6 Use of Documents
Supervision and Construction Procedures 1.1.1 , 1.6, 2.2.5, 3.12.6, 5.3
1.2.2, 3..3, 3.4, 3.1 2.1 0, 4.2.2, 4.2.7, 4.3.3, 6. 1.3, Usc of Site
6.2.4, 7.1.3, 7.3.6, 8.2, 8.3. 1, 9.4.2, 10, 12, 14 3.13, 6.1.1, 6.2.1
Surety Values, Schedule of
4.4.7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2 9.2, 9.3.1
Surety, Consent of Waiver of Claims by the Architect
9.10.2, 9.10.3 13.4.2
Surveys Waiver of Claims by the Contractor
2.2.3 4.3. 10, 9.10.5, 11.4.7, 13.4.2
Suspension by the Owner for Convenience Waiver of Claims by the Owner
14.4 4.3.10, 9.9.3, 9.10.3, 9 . 10.4, 11.4.3, 11.4.5, 11 .4.7'
Suspension of the Work 12.2.2. 1, 13.4.2, 14.2.4
5.4.2, 14.3 Waiver of Consequential Damages
Suspension or Termination of the Contract 4.3.10, 14.2.4
4.3.6, 5.4.1.1, 11.4.9, 14 Waiver of Liens
Taxes 9.10.2, 9.10.4
3.6, 3.8.2.1, 7.3.6.4 Waivers of Subrogation
Termination by the Contractor 6.1.1, 11.4.5, 11.4.7
4.3.10, 14.1 Warranty
Termination by the Owner for Cause 3.5, 4.2.9, 4.3.5.3, 9.3.3, 9.8.4, 9.9.1, 9.10.4, 12.2.2.
4.3. 10, 5.4.1.1, 14.2 13.7.1.3
Termination of the Architect Weather Delays
4.1.3 4.3.7.2
Termination of the Contractor Work, Definition of
14.2.2 1.1.3
Written Consent

AlA Document A201lM-1997. Copyright <11>19 11 , 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976. 1987 and 1997 by The American
1
Institute of Architects. All rights reserved. WARNING: This AIA Document Is protected by U:S. Copyright Law and lntornetlonal Treatlea. U'nauthoi'Ued 9
reproduction or distribution of this AlA' Document. or any portion of It, may result In seva1'81 civil end criminal penalties, snd will be prosecuted to tho
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expir'es on 7/2312006, and is not for resale.
User Notes: Ciayeo A201 • Kolf · lntelflcenter · Dallas v2 (5·19·06) (986536188)

R.P. Appx. 349 38
 1.6. 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2. 2.3, 2.4, 3.3.1. 3.9, 3.1 2.9, 3.12.10, 4.3, 4.4.8, 4.6.5,
9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.), 13.2. 13.4.2 5.2.1 , 8.2.2. 9.7, 9.10, 10.2.2. 10.3. 11.1.3, 11.4.6,
Written Interpretations 12.2.2, 12.2.4, 13.3, 14
4.2.11, 4.2.12, 4.3.6 Written Orders
Written Notice 1.1.1, 2.3, 3.9, 4.3.6, 7. 8.2.2, 11.4.9, 12.1 ' 12.2,
13.5.2, 14.3.1

AlA Document A201T10 -1997. Copyright © 191 1, 1915, 1918, 1925, 1937, 1951. 1958, 1961 , 1963. 1966, 1970, 1976. '1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Ia protected by U.S. Copyright Law and International Treatl&a. Unauthorized 10
reproduction or dlatrlbullon of this AlA• Document, or any portion ollt, may reault In severe civil and criminal penalties, and will be prolle'cuted to the
mliXImum extent possible under the taw. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1 000182995_ 1 which
expires on 7123/2006, and is not for resale.
User Notes: Clayco A201 • Kol! • lntelllcenter • Dallas v2 (5·19·06) (986536188)

R.P. Appx. 350 39
ARTICLE 1 GENERAL PROVISIONS
§ 1.1 BASIC DEFINITIONS
§ 1.1.1 THE CONTRACT DOCUMENTS
The Contract Documents consist of the Agree meat betweea O•.vtlef an£1 Coatraetar (hereiaafter l!!e Agreemeal),
Agreement. this specifically modified AlA Document A20 1.-1997. General Conditions of the Ceatreet (Geaerel,
S\iflfllemeatary Qflti ol!!er Coatiitioas), (" A20 I"), Ora wings, Specl1ications, Addenda issued prior to execution of the
Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract. A
Modification is (1) a written amendment to the Contract signed by both parties, QL(2) a Change Oreer, (31 a
Cea:Jtffictiea Cl:lQflge Direea·'e or (4) a wFiUea omer ~r a miaor eaaage ia tl:le Work isseed by the Arehitect. Order.
Unless specifically enumerated in the Agreement, the Contract Documents do not include other documents such as
bidding requirements (advertisement or invitation to bid, Instructions to Bidders, sample forms, the Contractor' s bjd
or portions of Addenda relating to bidding requirements). References herein to the "Agreement'' shall mean and
refer to the specifically modified Standard Form of Agreement Between Owner and Contractor. or Owner and
Construction Manager, which may be an AlA Document AIOI. Alii or Al2l. whichever is applicable.

§ 1.1.2 THE CONTRACT
The Contract Documents fom1 the Co.ntract for Construction. The Contract represents the entire and integrated
agreement between the parties hereto .and supersedes prior negotiations, representations or agreements, either written
or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be
construed to create a contractual relationship of any kind (I) between the Architect and Contractor, (2) between the
Owner and a Subconti:actor or Sub-subcontractor, (3) between the Owner and Architect or (4) between any persons
or entities other than the Owner and Contractor.Tile A:ehiteet shall, however, be eatitlea to f!er4'erataaee aae
eefel'eemeat of ol:lligaaoas Haser the Coatraet i:Rteaded to facilitate performance of the Al:chitect's duties.

§ 1.1.3 THE WORK
The term "Work" means ·the construction and services required by the Contract Documents, whether completed or
partially completed, and includes all other labor, materials, equipment and services provided or to be provided by
the Contractor to fulfill the Contractor's obligations. The Work may constitute tbe whole or a part of the Project.

§ 1.1.4 THE PROJECT
The Project is the total construction of which the Work performed under the Contract Documents may be the whole
or a part and which may include construction by the Owner or by separate contractors.

§ 1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and
dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams.

§ 1.1.6 THE SPECIFICAliONS
The Specifications are that portion ofthc Contract Documents consisting of the written requirements for materials.
equipment, systems, standards and workmanship for the Work, and performance of related services.

§ 1.1.7 THE PROJECT MANUAL
The Project Manual is a volume assembled for the Work which may include the bidding requirements, sampJe
forms, Conditions of the Contract and Specifications.

§ 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
§ 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and
completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by
one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent
consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the
indica.ted results.

§ 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings sh,all not
control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be
performed by any trade.

AlA Document A201"' -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute or Architects. All rights reserve~. WARNING: This AJA8 Document Is protected by U.S. Copyright Law 1nd International Treaties. Unauthorized 11
reproduction or distribution of thht AlA Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the
maximum extent poulble under tile law. This document was produced by AlA software at 14:42:43 on 05119/2006 under Order No.1 000182995_ 1 which
expires on 7/23/2006, and is not for resale.
User Notes: Clayco A201 - Koll - lntellicenter · Dallas v2 (5·19·06) (986536188)

R.P. Appx. 351 40
§ 1.2.3 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction
industry meanings are used in the Contract Documents in accordance with such recognized meanings.

§ 1.3 GAPITALIZATION
§ 1.3.1 Tenns capitali7.ed in these General Conditions include those which are (I) specifically defined, (2) the titles.
of numbered ruticles or (3) tbe titles of other documents published by the American Institute of Architects.

§ 1.41NTERPRETATION
§ 1.4.1ln the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any"
and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears
in another is not intende.d to affect the interpretation of either statement.

§ 1.5 EXECUTION OF CONTRACT DOCUMENTS
§ 1.5.1 The Contract Documents shall be signed by the Owner and Contractor.If either the Qv,'f!er ar CaHtraetar or
aath da Ret sigA ttl! W!e Cealfaet Doeameots, the ,'\n;hiteel shall ideotify ~I:IEll'll:lnsiga.etl Doel:lments l:lpon r:eqaest.

§ 1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site,
become generaUy familiar with local conditions under which the Work is to ibe performed and correlated personal
observations with requirements of the Contract Documents.

§ 1.6·OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE
§ 1,&,1 Tile Drawing:;, Sfleeifieat:iens II:Rti etlier Elee1:1ments, iRei1:1Eiing l:l~ese iA: eleeEFeffie farm, f!reparee ey the
Arelliteet aad the Arehiteet' 5 eea:sl:lltaats are lnSlfl:lfReRtS ef Service threl:lgA which the Werk ta ee e){eCI:IleG ey lhe
CeRlfaeter is Eleserieea. The Ceatraet~lF FHay retain one reeorEI set. ~leitller tJ:te Ceatraeter ner any 8-aaeeatraeter,
S1:1b saaeonlfas«~r or ERaterial or equipa1eat s~;~pplier seal! own or elaifR a copyright ifl the Drawi:Hgs, Speeifieatieat;
ana eY!er aeeu~Rts flFeparea by the Arelliteet er the Arekite.et' s eeftRUitaal!>, ana I:IAiess et:Aerwise iaaieatea lhe
Arel!iteet aftd the A:fehitect'S 601lSI:IItantS SRaiJ ae SeeFHed the autREIFS ef tReffl ll:Rd will retttiR ail 69ffiRI8ft law,
statutery aM other reser¥ed rights, in additieR to lR:e eepyrights. AIJ eepies of lHstruFHents ef Serviee, e*eept the
Centraeter's reee£6 :;et, sllall ee retafAetl er sl:litaaly aeeo1:1nted fer te tile Arehiteet, eA req1:1est, 1:1pen ce!Bplet:ien et
the Werk. The Drawiags, SpeeifieatieBs and e!:her deel:lfRBftt!i pr:etJareEI ey tke Arelliteel ttHS t:Ae Architect's
eansultaats. asa eepies tl!ereef faFRisaed te the Centraetar, are fer use salely with re~eet te tlli:; Prejeet. Tiley are
net te be 'I:!sea by the Ceattaeter er QFIY S~:~eeentraeter, S1:1e s~:~eeoatractor or ERaterial or eq~:~ipFHent Sl:lflfllier en ather
prejeets er fer edelitieas ta this Prejeet eat:1iae the seeJ!e ef !:he WerlE witheut !:he specifie written eonsent of tile
Owner, t\rehiteet ll:Ra the Ar:ehiteet's eeasl:lltants. The Ceatreetar, S~:~aeenli'aeters, .S1:1a 9ueeen~raetars aaa material
er eEJH:ipFAeat sapf!liers are autherizea te use aaEI reprea~:~ee apf!lieable pertiaas ef the Drawisgs, Sj3eeifieatiaas aad
ether aeeumentG j3Fepai'eEI ey tile Arehiteet aaa Hie t\:elliteet' s eensl:lltanl(; apJ3F8'j:lriate to aaa i"er ase in the
8l(B.el:ltiea af their '\lla.rk !lASer tile Ceel:Faet DeeumeHt:l. All 60fliBfl FHaae under !:his au!:horizatioR shall eear the
Statl:ltary 69J3)oflgRt aoaee, if any, shows 9R tile Drawings, Speeifieatians aHd ather ElaetlmeR~ flFefli:H'ea ey the
Arelliteet aHd tl!e Arehiteet's eoHsll:itants. Submittal or aistria-aties te FReet affieial reg1:1latory reEJatre!BeRtt; ar for
.ether fll:lrpeses iHeeooeetiea witll this Projeet is not to be eoRstruea at; flUelieation in aerogation oftl=le Arellitect's
er .\re!Hteet' s eeasaltants' eepyrightG ar etl!er rese£'1eEI rights.
§ 1.6.1 The Drawings, Specifications and other documents prepared by the Architect or by any engineer or other
design consultant working under the Architect or the Contractor (the "Other Design Consultants") for this Project
(the "Design Documents") are instruments of the Architect's and Other Design Consultants' service through which
the Wotk to be executed by the Contractor is described and, unless otherwise provided. the Architect and Other
Design Consultants shall be deemed the author of these documents and shall retain all common law. statutory and
other reserved rights, including the copyright until such time as the Owner has provided full and final payment to the
Contractor for all services provided by the Architect and Other Design Consultants under this Agreement. Until final
payment has been made by Owner. the Contractor shall cause the Architect .and Other Design Consultants to grant in
writing. upon execution of this Agreement. to the Owner a fu ll and exclusive lkense for all copyright rights and
privileges held by the Architect and Other Design Consultants with respect to the Design Documents. Such written
agreement by the Architect and Other Design Consultants shall also provide that, upon full and final payment for
Architect's and the Other Design Consultants' services. all rights reserved for the Architect and the Other Design
Consultants with respect to the Design Documents shall pass to the Owner. The Architect and Other Design
Consultants shall he permitted t() retain copies. including reproducible and electronic copies. of the Design
Documents for information and for use in the marketing of the Architect's and Other Design Consultants' services.

AlA Document A201TM -1997. Copyright © 1911, 1915, 1918. 1925, 1937, 1951, 1958. 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: Thla AlA"' Document II protected by U.S. Copyright Law eod lnternellonel Treaties. U neuthorlz;ed 12
reproduction or distribution of this AtA• DoeUl'l'lent, or tny portion of It, may result In severe- civil and criminal penaltltt, and will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05119/2006 under Order No.1000182995_ 1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll • lntellicenter • Dallas v2 (5·19·06) (986536188)

R.P. Appx. 352 41
Architect and the Other Design Consultants shalJ also be permitted to use any standard details from the Design
Documents for other projects by the Architect o.r Other Design Consultants.

Any use of the copyright license or use or distribution of the Design Documents by the Owner. other than for this
specific project. shall be at the Owner's sole risk. The Owner waives any right to make claims and waives. to the
fullest extent permitted by law. any claim or cause of action against the Architect. the Other Design Consultants.
their employees, agents or subconsultants. which may arise out of the Owner's use of this copyright license or its use
or distribution of the Design Documents for other than this specific project without the concurrent and associated
use of the Architect's or Other Design Consultants' services. The Owner hereby agrees to defend. indemnify and
hold harmless the Contractor. Architect and Architect's consultants from any and all claims. damages. liabilities.
losses and expenses. including reasonable attorney's fees. arising out of or resulting from the use of the "instruments
of service." This docs not relieve the Architect or Other Design Consultants from their responsibility to properly
design this project for future renovations or expansions to the extent the criteria for such are specifically identified
by the Owner and documented in the programming of this project.

The Architeet and Other Design Consultants shall deliver to the Owner a complete set of the Design Documents
prepared by the Architect. Other Design Consultants or their subconsultants in the form of electronic files within
thirty (3{)) days·of the Substantial Completion date or the date of the last Owner-initiated revision, whichever is
latest. Architect and the bther Design Consultants shall also maintain an electronic copy of the Design Documents
for a period of three (3) years from the date of Substantial Completion of the Project.

ARTICLE 2 OWNER
§ 2.1 GENERAL
§ 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the
Contract Documents as.if singular in number. The Owner shaJI designate in writing a representative who shall have
express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorb.ation.
Except as otherwi$e provided in Section 4.2. 1, the Architect does not have such authority. The term "Owner" means
the Owner or the.Owner's authorized representative.

§ 2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information
necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic' s lien rights. Such
information shaH include a correct statement of the record legal title to the property on which the Project is located,
usuafly referred to as the site, and the Owner's interest therein.

§ 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
§ 2.2.1 The Owner shall, at the written request of the Contractor, prior to commencement of the Work and thereafter,
furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner's
obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or
continuati.o n of the Work. After such evidence has been furnished, the Owner shaJJ not materially vary such
financial arrangements without prior notice to the Contractor.

§ 2~2 Except for permits and fees, including those required under Section 3.7.1, which are the responsibility of the
Contractor under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements,
assessments and charges .required for construction, use or occupancy of permanent structures or for permanent
changes in exjsting facilities.

§ 2.2.3 The Owner shall f11mish surveys describing physical characteristics, legal limitations and utility locations for
the site of the Pn~ect, Project (the "Surveys"), and a legal description of the site. The Contractor shall be entitled to
rely on the accur!!-CY of information furnished by the Owner but shall exercise proper precautions relating to the safe
performance of the Work. The Owner shall disclose. to the extent known to the Owner. the results and reports of
studies. prior tests. inspections \)r investigations conducted for the Project (collectively, the "Project Information")
involving: structural or mechanical system.~;. chemical. air and water pollution; hazardous materials; geotechnical
conditions; Surveys; studies and plans or other environmental, subsurface or concealed conditions. The Owner shall
disclose all information known to the Owner regarding the presence of hazardous materials. pollutants or
contaminants at the Project's site. The Contractor shall review all such Project Information and shall cause the
Architect, the structural engineer and other Design Professionals hired by Contractor and/or Architect to design, and

AlA Document A201.,.. -1997. Copyright © 191 1, 1915, 1918, i925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by TheAmelican
Institute of Architects. All rights reserved. WARNING: Thla AlA• Document Ia protected by U.S. Copyright Lew and International Treaties. Unauthorized 13
reproduction or distribution of thla AlA• Doc11ment, or any portion of II, may re.ult In severe civil and criminal penal tiel, and will be prosecuted to the
maximum extent possible under the IIIW. This document was produced by AlA software at 14:42:4J on 05/ 19/2006 under Order No.1 000182995~1 which
expires on 7123/2006, and is not for resale.
User Notes: Clayco A201 • Koll • lntelllcenter · Dallas v2 {5-19·06) (986536188)

R.P. Appx. 353 42
 Contractor shall construct. the Project in accordance with the recommendations and findings set forth in such Project
Information.

§ 2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner
with reasonable promptness. Any other information or services relevant to me Contractor' s performance of the
Work under the Owner's control shaJJ be furnished by the Owner after receipt from the Contractor of a written
request for such information or services.

§ 2.2.5 Unless otherwise provided in the Contract Documents, the ContractOI will be furnished, free of charge, such
copies of Drawings and Project Manuals as are reasonably necessary for execution of the Work.

§ 2.3 OWNER'S RIGHT TO STOP THE WORK
§ 2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract
Documents as required by Section 12.2 or persistently fails to carry out Work in accordance with the Contract
Documents, the Owner muy issue a written order to the Contractor to stop the Work, or uny portion thereof, until the
cause for such.order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a
duty on the part Gf the Owner to exercise this right for the benefit of the Contractor or any other person or entity,
except to the extent required by Section 6.1.3. No part of the time lost due to any such stop work orders shall be
made the subject of a claim for extension of time or for increased costs or damages by Contractor.

§ 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
§ 2.4.1lf the Contractor defaults or neglects to carry out the Wo rk in accordance with the Contract Document<; and
fails within a seven-day period after receipt of written notice from the Owner to commence and continue correction
of such default or neglect with diligence and promptness, the Owner may after such seven-day period give the
Contractor a second written notice to correct such deficiencies within a three-day period. If the Contractor within
such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies,
the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. ln such case an
appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the
reasonable cost of correcting such deficiencies, including Owner' s expenses ttfld eeftl~f:Utllat:ion fer the A:reJ:titeet's
aeEiil:ieseJ serviees made necessary by such default, neglect or failure. SYea ae!:iea ey tl:te Owner and amom1ts
ehaFged te the Cont:Fae~er aFe eet:A SYejeet te ~fier a~~re·,oal ef the ,\fel:titeet. If payment<; then or thereafter due the
Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. lf the
Contractor defaults in the Contractor's obligations to the Owner. the Architect shall grant a license to the Owner to
use the drawings. specifications. and other document'! and electronic data furnished by the Architect to the
Contractor for the completion of the Project.

ARTJCLE 3 CONTRACTOR
§ 3.1 GENERAL
§ 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the
Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's
authorized representative.

§ 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents.

§ 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract
Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests,
inspections or approvals required or performed by persons other than the Contractor.

§ 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
§ 3.2.1 Since the Contract Documents arc complementary, before starting each portion of the Work, the Contractor
shall carefully study and compare the various Drawings and other Contract Documents relative to that portion of the
Work, as well as the information furnished hy the Owner pursuant to Section 2.2.3, shall take field measurements of
any existing conditions related to that portion of the Work and shalJ observe any conditions at the site affecting it.
These obligations are for the purpose of faciljtating construction by the Contractor and are not for the purpose of
djscovcring errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or
omissions djscovered by the Contractor shall be reported promptly to the Arehiteet Owner as a request for
information in such form a,<; the Arehiteet Owner may reasonably require.
AlA Document A201TM - 1997. Copyright © 1911 . 1915, 1918, 1925. 1937, 1951 , 1958, 1961. 1963, 1966, 1970, 1976. 1987 and 1997 by The American
Institute of Architects. All rlghta reserved. WARNING: This AIA1 Document 11 protected by U.S. Copyright Llw 1nd lntern1t1onal Treaties. Unauthorized 14
reproduction or dlatrlbuUon ol this AIA1 Document, or any portion ol It, may result In severe civil and criminal pan•IU. ., and will be proa~t<~uted to the
maximum extent possible under the law. This document was produced by AlA software at t 4:42:43 on 05119/2006 under Order No.1000182995_ 1 which
expires on 712312006, and Is not for resale.
User Notes: Clayco A201 • Koll • lntelllcenter • Dhall Ret ee
liable te !be Owaer er A:rehiteet fer aamages res1:1ltiag free errors, ~soesisleaGies or emissioAS ifl me CoAtFaet
Deet~meats er fer aiffereaees eetweea iiela measaremeats er eeRaitioas at'la. me Ceatraet DoeYmeRts YAless !be
CeR~meter reeegnizea s1:1ea effer. iAeof'lsisteRey, emissiaR or EliffereFtee aRe lEI:lO\ViAgly t'ailea te rep eFt it te the
Areliit.eet.

§ 3.3 SUPERVISION AND CO~STRUCTION PROCEDURES
§ 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The
Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences
and procedures and for coordinating alJ portions of the Work under the Contract, unJess the Contract Document'>
give other specific instructions concerning these matters. If the Contract Documents give specific .instructions
concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the
jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such
means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods,
techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner
and ,<\feffiteet liRa shall not proceed with that portion of the Work without further written instructions from the
:z'\rehiteet Owner. If the Contractor is then instructed to proceed with the required means, methods, techniques,
sequences or procedures..without acceptance of changes proposed by the Contractor, the Owner shall be solely
responsible for any resulting loss or damage.

§ 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees,
Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or
on behalf of the Contractor or any of its Subcontractors.

§ 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that
such portions are in proper condition to receive subsequent Work.

§ 3.4 LABOR AND MATERIALS
§ 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor,
materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other
facilities and services necessary for proper execution and completion of the Work. whether temporary or permanent
and whether or not incorporated or to be incorporated in the Work.

§ 3.4.2 The Contract0r may make substitutions only with the consent of the Owner, after evaluation by the Architect
and in accordance with a Change Order.

§ 3.4.3 The Contractor soall enforce strict discipline and good order among the Contractor' s employees and other
persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not
skilled in tasks assigned to them.

§ 3.4.4 The Contractor shall inspect all materials. supplies and equipment that are to be incorporated into the Project.
In addition. Contractor shall be responsible for construction quality control f{>r all Work. Contractor's quality control
program and inspection procedures for the foregoing shall be submitted in writing to Owner for review and
approval. in sufficient detail to delineate those items to be inspected and the manner in which they are to be
AlA Document A201,. -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961 , 1963. 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Ia protected by U.S. Copyright Law and International Treatla.. Unauthorized 15
reproduction or distribution ot this AlA• Document, or 1ny portion of It, m•y result In 1evera c.l vll and crl!llfnal pen11tles, 1nd will be prosecuted to tha
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7123/2006. and is not for resale.
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R.P. Appx. 355 44
inspected, and shall adequately describe all construction quality control activities contemplated. including provision
for adequate documentation of Contractor's performance of such quality control and inspection.

§ 3.4.5 Contractor shall, during the course of performance of the Project hereunder. without additional compensation.
make or cause to be made all inspections required by the Contract Documents. Owner may require at Owner's
expense additional inspections. Contractor shall furnish Owner with satisfactory documentation of the results of all
inspections. Owner shall be given not less than three (3) working days notice of any inspections to be made by
Contractor or Contractor' s subcontractors in order that Owner may witness any such inspections.

§ 3.4.6 Owner and its representatives. and others as may be required by applicable laws. ordinances and regulations.
shall have the right at all reasonable times to inspect the Project and all material and equipment for the Project at the
job site and at Contractor's and its subcontractors' shops for conformance w]th the Contract Documents. Contractor
shall provide. or cause to be provided access and sufficient, safe and proper facilities for such inspections.

§ 3.4.7 Neither the failure by Owner to make any insoection under the Contract Documents nor to discover defective
workmanship, ,materials oreauipment nor approval of any Work or payment to Contractor for such Work shall
constitute Contractor's satisfaction of its obligations under the Contract Documents. nor shall any such inspections
or approvals prejudice the right<> of Owner.

§ 3.5 WARRANTY
§ 3.5.1 The Contractor warrants to the Owner a:aa Arekiteet that materials and equipment furnished under the
Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the
Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to
the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions
not properly approved and authorized~ may be considered defective. The Contractor's warranty e,l(cludes remedy for
damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient
maintenance, improper operation, or normal wear and tear and normal usage. If required by the AreJ:Jiteet, Owner.
the Contt;actor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. All
warranties under this Paragraph shall commence as of the date of Substantial Completion of the Work. and shall
continue for a oeriod of one ( l) year. except as otherwise noted in the Outline Specs (as such term js defined in the
Agreement). THE CONTRACTOR .H EREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED
WARRANTIES. INCLUDING WITHOUT LIMITATION. ANY WARRANTIES OF FITNESS FOR ANY
PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY WARRANTED HEREIN. THERE ARE NO
WARRANTIES BEYOND THE DESCRIPTION ON THE FACE HEREOF. All subcontractor's and
manufacturer' s warranties shall be deemed furnished and assigned to the Owner pursuant to this Contract without
further action by the Contractor upon Final Payment by the Owner as required under this Contract.

§ 3.6 TAXES
§ 3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor
which are legally enacted when bids arc received or negotiations concluded, whether or not yet effective or merely
scheduled to go into effect.

§ 3.7 PERMITS, FEES AND NOTICES
§ 3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building
permit and other permits and governmental fees, licenses . waivers, consents. approvals and authorizations and make
all material registrations. qualifications , designations and filings required and shall secure and pay for all inspections
necessary for proper execution and completion of the Work which are customarily secured after execution of the
Contract and which are legally required when bids arc received or negotiations concluded.

§ 3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful
orders of public authorities applicable to performance of the Work.

§ 3.7.3It is Aet Contractor shall cause the CeRtfaetor's resf.!eRsiaility Architect and other design professionals to
ascertain that the Contract Documents are i.n accordance with applicable laws, statutes, ordinances, building codes,
and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at
variance therewith, the Contractor shall promptly notify the ,'\Eelti~eet aaa Owner in writing, and necessary changes
shaiJ be accomplished by appropriate Modilication.
AlA Document A201TM -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963. 1966. 1970, 1976, 1987 and 1997 by The American
Institute ol Architects. All rights reservei· WARNING: This AJA1 Document Ia protected by U.S. Copyright Law and International Treaties. Unauthorlted
reproduction or distribution of this AlA Document, or any portion ollt, may result In Mvera, civil and criminal panallles, and will be prosecuted to the
16
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.10001 82995_ 1 which
expires on 712312006, and Is not tor resale.
User Notes: Clayco A201 • Koll · lntellicenter · Dallas v2 (5· 19·06) (986536188)

R.P. Appx. 356 45
§ 3.7.4lf the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and
rules and regulations without such notice to the ~wner, lhe Contractor shall assume appropriate
responsibility for such Work and shall bear the costs attributable to correction.

§ 3.8 ALLOWANCES
§ 3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items
covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct,
but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable
objection.

§ 3.8.2 Unless otherwise provided in the Contract Documents:
.1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and
all required taxes, less applicable trade discounts;
.2 Contractor' s costs for unloading and handling at the site, labor, installation costs, overkeael, ~refit
Contractor's Fee based on the percentage set forth in Section 5.1.2 of the Agreement and other
expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in
the allowances;
.3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly
by Change Order. The amount of the Change Order shal1 reflect (1) the difterence between actuaJ
costs and the allowances under Section 3.8.2.1 and (2) changes in Contractor's ~osts.
Contractor's Fee based! on the percentage set forth in Section 5. 1.2 of the Agreement and other
expenses under Section 3.8.2.2.

§ 3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay
in the Work.

§ 3.9 SUPERINTENDENT
§ 3.9.1 The Contract.o r $hall employ a competent superintendent and necessary assistants who shall be in attendance
at the Project site durin,g performance of the Work. The superintendent shall represent the Contractor, and
communications given to the superintendent shall be as binding as if given to the Contractor. Important
communications (including but not limited to any communication that may affect the items in subparagraphs (i)
through (vii) of Section 6.5 of the Agreement) shall be confirmed in writing. Other communications shall he
similarly confirmed on written request in each case.

§ 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
§ 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner' s 600
,'\reftiteet's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits
current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the
Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall
provide for expeditious and practicable execution of the Work.

§ 3.10.2 The Contractor shall prepare and keep current, for the Arckiteel's Owner' s approval, a schedule of
submittals which is coordinated with the Contractor's construction schedule and allows the ~
reasonable time to review submittals.

§ 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to
the OWfier ll:llE! Arehi~eetOwner.

§ 3.11 DOCUMENTS AND SAMPLES AT THE SITE
§ 3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications,
Addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and
selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and
similar required submittals. These sbaU be available to the Afeltiteet Owner and shall be delivered te the ,'\Fskiteet
fer submittal to the Owner upon completion of the Work.

AlA Document A201"' - 1997. Copyright © 191 1, 1915, 1918, 1925, 1937, 1951 , 1958, 1961, 1963, 1966. 1970. 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Ia protected by U.S. Copyright law end International Treatlea. Unauthorized 17
reproduction or distribution of this AlA• Document, or any portion of It, may result In severe civil and criminal penalties, and will be proa"cuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll - lntellicenter · Dallas v2 (5·19-06) (986536t 88)

R.P. Appx. 357 46
§ 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
§ 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the
Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of
the Work.

§ 3.12.2,Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and
other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work.

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

§ 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of
their submittal 'is to demonstrate for those portions of the Work for which submittals are required by the Contract
Documents the way by which the Contractor proposes to conform to the information given and the design concept
expressed in the Contract Documenrs. Review by the Architeot Owner is subject to the limitations of Seotiea section
4.2.7. Informational submittals upon which the Ai'cb:iteet Owner is not expected to take responsive action may be so
identified in the Contract Documents. Submittals ~that are not required by the Contract Documents may be
returned by the Areffiteet Owner without action.

§ 3.12.5 The Contractor shall review for compliance with the Contract Documents, 8fJfJFOve and submikiirect the
Owner to review the A:-el!itect Shop Drawings, Product Data, Samples and similar submittals required by the
Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the
activities of the Owner or of separate contractors.SaeeliuaJ.s wfti.ch are Ret IBaEkeel a:s revieweel for COHI:J:lHEIHee with
tile Coetraet DeeiUAeRI:S aRe! approved ay t:Ae CeRkaeter may ae retYFReel ey
t:Ae ,'\reffiteet witAOii:t aetieH.

§ 3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contract(lr
represents that the Contractor has determined and verified materials, field measurements and field construction
criteria related thereto;or will do so, and has checked and coordinated the information contained within such
submittals with the requirements of the Work and of the Contract Documents.

§ 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal
and review by the Owner of Shop Drawings, Product Data, Samples or similar submittals until the respective
submittal has been approved by tli,e At:eh~teet.Owner.

§ 3.12;8 l'he Work shall be in accordance with approved submittals exceptthat the Contractor shall not be relieved of
responsibility for deviations from requireme nts of the Contract Documents by the Arehitect's Owner's approval of
Shop Drawings, Product Data, Samples -or similar submittals unless the Contractor has specifically informed the
AFehiteet Owner in writing of such deviation at the time of submittal and (J) the A::cll:iteet Owner has given written
approval to the specific deviation as a minor change in the Work, or (2) a Change Order or CoRstrnetiea Cl!aege
Direeti•re has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors
or omissions in Shop Drawings, Product Data, Samples or similar submittals by the t\:eJ:titect'!; Owner's approval
thereof.

§ 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data,
Samples or similar submittals, to revisions other than those reque.~tcd by the AFeRitect Owner on previous
submittals. In the absence of such wrinen notice the Arelliteet's Owner's approval of a resubmission shall not apply
to such revisionS.

§ 3.12.10 The Contractor shall not be required to provide professional services which constitute the practice of
architecture or engineering unless such services are spec-ifically required by the Contract Documents for a portion of
the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's
responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be
required to provide professional services in violation of applicable law. If professional design services or
certifications by a design professional related to systems, materials or equipment are specifically required of the
Contractor by the Contract Documents, the Owner aAEI ~he Arelliteet will specify all performance and design criteria
that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a
properly licensed design professional, whose signature and seal shall appear on all drawings, calculations,

AlA Document A201TM -1997. Copyright © 191 1, 1915, 1918, 1925, 1937, 1951 , 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AtA• Document Ia protected by U.S. Copyright Law and lnternatlonel Treatloa. Unauthorized
reproducti on or distribution of lhla AlA• Document, or any portion ol It, may result In severe. elvlland criminal penalties, and will be prosecuted to the 18
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 0511912006 under Order No.1000182995_1 which
expires on 7123/2006, and is not for resale.
User Notes: Ciayeo A201 • Koll · lntellicenter · Dallas v2 (5·19·06) (986536188)

R.P. Appx. 358 47
 specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings
and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear
such professional's written approval when submitted to the l\reJ:Uteet. Owner. The Owner aaEI tae Areaiteel shall be
entitle'd to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed
by such design professionals, provided the Owner aRE! AreJ:Iiteet have has specified to the Contractor aJI performance
and design criteria that such services must satisfy. Pursuant to this Section 3.12.10, the ,'\i'el:liteet Owner will review,
approve or take other appropriate action on submittals only for the limited purpose of checking for conformance
with information given and the design concept expressed in the Contract Documents. The Contractor shall not be
responsible for the adequacy of the performance or design criteria required by the Contract Documents.

§ 3.13 USE OF SITE
§ 3.13.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the
Contract Documents and shaH not unreasonably encumber the site with materials or equipment.

§ 3.14 CUTTING AND PATCHING
.§ ~.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make
its parts fit together properly.

§ 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed
construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by
excavation. The· Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor
except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably
withheld. The Contractor .shall not unreasonably withhold from the Owner or a separate contractor the Contractor's
consent to cutting or otherwise altering the Work.

§ 3.15 CLEANING UP
§ 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or
rubbish caused by operations. under the Contract. At completion of the Work, the Contractor shall remove from and
about the Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus
materials.

§ 3.15.2 If the Contract{)r fails to clean up as provided in the Contract I)ocuments, the Owner may do so and the cost
thereof shall be charged to the Contractor.

§ 3.16 ACCES.S TO WORK
§ 3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress
whe~;ever located.

§ 3.17 ROYALTIES, PATENTS AND COPYRIGHTS
§ 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for
infringement of copyrights and patent rights and shall hold the Owner aaEI AFebiteet 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 or where the copyright violations
are contained in Drawings, Specifications or other documents prepared by the Owaer er ArcJ:Iiteet. Owner. However,
if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright
or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the
AreJ:Iiteet.Owner.

§ 3.181NDEMNIFICATION
§ 3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered
by U!l:Proje<;t Management Protective Liability insurance purchased by the Contractor in accordance with Section
~I L3 or (b) builder' s risk or property insurance maintained with respect to the Project. the Contractor shall
indemnify and hold harmless the Owner, 1\re&i~eet, ATe&iteet' s eaam:l!tan~. aeEI ageets aaEI 8HI:f3leyees af aay ef
lfiem.from and against claims, damages, losses and expenses, including but not limited to reasonable attorneys' fees,
arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than
the Work itself), but only to the extent caused by the aegligent acts or omissions of the Contractor, a Subcontractor,
AIADocumentA201TN-1997.Copyrlght ©1911 , 1915,1918, 1925,1937,1951,1958. 1961, 1963, 1966, 1970,1976,1987and 1997byTheAmerican
Institute of Architects. All rights reserved. WARNING: Thla AlA• Document Is protected by U.S. Copyright Law and International Treetlea. Unauthorized 19
reproduction or dlatrlbutlon of thl1 AlA• Document, or any portlon oil!, may result In severe civil and criminal penalties, and will be proseauted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1 000182995_1 which
expires on 7/23/2006, and is not lor resale.
User Notes: Ciayeo A201 • Koll · lntellicenter ·Dallas v2 (5· 19·06) (986536188)

R.P. Appx. 359 48
anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regaraless but only to
the extent that such claim. damage. loss or expense is not caused by breach. or acts of omissions of the Owner. To
the fullest extent permitted by Jaw, the Owner shall indemnify and hold harmless the Contractor, its Subcontractors.
and the agents and employees of any of whether er them from and against claims, damages. losses and expenses.
including but not limited to reasonable attorneys' fees. arising out of the Project. provided that such claim, damage,
loss or expense is attributable to bodily injury. sickness. disease or death, or tO injury to or destruction of tangible
prOperty, but only to the extent caused by the Owner's breach of this Contract. or the acts or omissions of the
0'Wller. the Owner' s separate contract against any person or entity indemnified under this Section 3.18 by an employee of the Contractor,
a Subcantractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under Section 3.18.1 shall not be limited by a limitation. on amount or type of damages,
compensation or benetits payable by or for the Contractor or a Subcontractor under workers' compensation acts,
disability benefit acts or other employee benefit acts.

ARTICLE 4 AD.MINISTRAliON OF THE CONTRACT
§ 4.1 ARCHITECT
§ 4.1.1 The Architect is the persen lawfully licensed to practice architecture or an entity lawfully practicing
architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular
in number. The .term "Architect" means the Architect or the Architecl's authorized representative.

§ 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents
shall not be restricted, modified or extended without written consent of the Owaer, Caaa=ae~er Owner and Arehi~eet.
the Contractor. Consent shall not be unreasonably withheld.

§ 4.1.3 If the employment ofthe Architect is terminated, the ~ontractor shall employ a new Architect against
whom the Ceaa=aeter 0'Wller has no reasonable objection aatl-whose status under the Contract Documents shall be
that of the fonner Architect.

§ 4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT
§ 4.2.1 The Arehiteet will pre.,.iae aElmiAistratiea ef the CaAa=aet as aeserieed ia the Ceaa=aet DeeYFBeats, aaEi will ee
QA ov..aer' s rej3reseAtati·~e (1) SliriBg ea~klietiee, (2) liAlil .fiaal J38Ytl}eAt is E:iae QtlS (3) with~ Owaer' s
eeAei:HTeeee, frem ~:mete ~e E:ilifiAg the aAe year periea l'er eerreetiaa afWerlc E:ieserieea i:A Seetiee 12.2. The
,'\rehi~ee~ will ha•le al:ltherity ta aet eft behalf af the Owner a ely te the eKtent J3FOvided in the Centraet DoeHmeats,
HBles$ otherwi!;e FBodifiea ia writing iAaeeardaaee •Nith ether J3Fe''isiens af ·the Cana=aet.
§ 4.2.1 The Contractor shall keep the Owner infonned of the progress and quality of the Work. Within thirty (30)
calendar days after full execution and delivery of the Contract Documents and before submittal of the first progress
payment invoice, and at each construction progress meeting on site. Contractor shall submit to Owner for Owner' s
reasonable approval (i) a revised Project Schedule (the most recent schedule so approved in writing by Owner
becoming the revised Project Schedule for all purposes of the Contract Documents) showing changes from the prior
Project Schedule, the sequence in which Contractor proposes to perform the Project. the start and completion dates
of all separable portions of the Project in sufficient detail. manpower forecasts (incremental and cumulative percent
complete), materials procurement and delivery plans. the anticipated Substantial Completion Date and the
anticipated date that Contractor will tender possession of the Project and any other information reasonably specified
by 0'Wller pertaining to the construction schedule, along wi:th (ii) a proforma Project Schedule that "looks ahead"
two weeks containing the same details as set forth in subpart (i) above. Contractor agrees to adhere to the Project
Schedule and attend and participate in scheduled progress and coordination meetings called by Owner. Within thirty
(30) calendar days after full execution and delivery of the Contract Documents and before submittal of the first
progress payment invoice. and at each construction progress meeting on site, Contractor shall also submit to Owner
a revised budget for the Project, in form and content reasonably approved by Owner. including all hard and soft
construction costs {the "Bud2et"l. along with a construction cost report in fom1 and content reasonably acceptable
to Owner. Contractor shall use commercially reasonable efforts to keep the Budget as accurate as possible.
AlA Document A2011M - 1997. Copyright © 191 1, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute ol Architects. All rights reserved. WARNING: This AJA• Document Ia protected by U.S. Copyright Law and International Treatlu. Unauthorized 20
reproduction or dlatrlbuUon o1lhis AIA8 Document, or a.ny portion ol It, may result In severe olvila.nd criminal penaJUea, end will be pros&euted to the
maximum extent possible under the law. This document was prOduced by AlA software at 14:42:43 on 05!19/2006 under Order No.1000182995_ 1 which
expires on 7!2312006, and is not for resale.
User Notes: Clayco A201 • Koll • lntellicenter - D.allas v2 (5-1 9·06) (986536188)

R.P. Appx. 360 49
Contractor shall provide Owner with monthly reports no later than the tenth (lOth} day of each month, which shall.
at the minimum, include the most current Project Schedule and a Project Change Order log update (with pricing
information).

§ 4.2.2ln the event Contractor's perfonnance of the Project is not in compliance with the Project Schedule, Owner
may, in writing, reguire the Contractor to submit its plan for schedule recovery, or specify in writing the steps to be
taken to achieve compliance with such Project Schedule, and/or exercise any other remedies under the Contract
Documents. Contractor shall thereupon take such commercially reasonable steps as may be directed by Owner or
otherwise necessary to improve its progress.

§ 4.2.2 The Arel:iiteet, as a Tef!Feseatali \'e ef !he O•...•aer, will visit the site at ieterva-ls Bflf!ref!riate ta the stage ef the
Ceatraeter's 9f1eratieas (1) te eeeeA'Ie geRerally fa&~iliar 'i'ogress
aREI ~u~ity ef the pe:Ft:ieH ef the W~:~rk eemf!leted, (2) te eadeaver te gliara the Qv,r-ser agaiast Elefeets aREI
EleeeieReies i.e the Wefl(, aaEI (3) te Eleterffiiae ia geaeral if the Werle is eeiag tJerfermea ia a meaaer iaEiiealiag that
the 'Nark, 'lihea f~:~Uy semf!leted, •.vill ee ia ascordaAse with the Coatraet Deeumeats. gewever, the Arehiteet will
aet be re~EI te A'!alce exhaa;sti¥e er eeatiaue~;~s ea site iasf!eetieas te e~ek the E}l:la!ity er EJuantity ef the Werle
The Arehiteet will aeiti:ler h&><'e eeatral ever er ei:large ef, Aor ae respaasiele fEJr, the eeastruetiea meeRs, metheEis,
tecllaiEjHes, seq~;~eaees er fJFeceEiures, or fur the safety f!FeCautieas aRd f!Fegram.s ia eeaaeetiea with the \lledc, siRe e
thet;e are solely tRe Coatractor's right~• aAd resf!oasieilities uader the CeRtraot Documeats, eKeept as provided ia
SeetioA J .3 .I.
§ 4.2.3 Contractor acknowledges and agrees Prudential Insurance Company of America (''Prudential") shall employ
one or more. construction consultants or engineers (collectively. the "Prudential Construction Consultant") to
advise Prudential with respect to the progress of construction and compliance of construction with the construction
plans and specifieations for the Project. applicable legal requirements and good construction practices. Contractor
shall inform the Prudential Construction Consultant of the usual location. date and time of periodic construction
meetings for the Project. The Prudential Construction Consultant shall be permitted to attend all such construction
meetings. Contractor shall provide the Owner and Prudential Construction Consultant with at least three (3)
business days' pri0r notice of any change in the date, time or location of a periodic construction meeting. Contractor
shaH permit Owner and the Prudential Construction Consultant to have access to the Project during the period of
construction to enable the Owner and Prudential Construction Consultant to examine all aspects of such construction
and all matters related thereto. Contractor shall provide Owner and the Prudential Construction Consultant wjth at
least three (3) business days' prior written notice of each of the following trades commencing construction at the
Project: mechanical. -electrical, plumbing. framing, paving, curtain wall installation and foundations. Contractor
shall provide to Owner and the Prudential Construction Consultant reasonable access during normal business hours
to all books. records: shop drawings. and engineering and other reports and tests related to the Project as may be
reguested by Owner or the Prudential Construction Consultant. The Owner and the Prudential Construction
Consultant shall have the right to make copies of all such materials. Contractor shall provide to Owner and the
Prudential Construction Consultant a _reasonable working space and access to telephone and other such facilities as
may be reasonably requested by Owner or the Prudential. Construction Consultant. Upon execution of this
Agreement, Contractor shall deliver to Owner and the Prudential Construction Consultant a list of all current and
potential bidders who may perform work at or supply materials to the Project together with a list of al.l bid packages
which were 'sent to any of such bidders and all bids which were received from such bidders. Such bidding
information shall be updated by Contractor on a monthly basis by delivering revised lists to Owner and the
Prudential Construction Consultant. The Owner and the Prudential Construction Consultant shall have the right to
review any bid packages or any bids received upon request.

§ 4.2.3 T~ Arelliteet v•iH aot ee reSflOASiele for the Cootraetor's failure te f!erferm the WerlE iR aeeerdaflee witA me
~iremeAlA ef the Cem:raet Deenuaeflts. The Ai'e&iteet wil:l aet J:ia¥e ooatreJ o¥er or ettarge of aaEI will sot ee
resf!easiele Fer aets er emi:ssieas ef the Ceetraeter, Suaeeatreetors, or their ageats er employees, er any other
perseAs er eat:it:ies f!erfermiRg f!OrtieRs ef t.Ae Werk.
§ 4.2.4 If requested by Owner. Contractor shall furnish it with the names of the subcontractors who have performed
or are -performing the Work hereunder.

~Communications Facilitating Contract Admi_nistration. ell6ef!t as et.Aerwise flFEH Shop Drawings, Product Data and Samples, but only for the limited purpose of
checking for conformance with information given and the design concept expressed in the Contract Documents. The
Aremteet's Owner's action will be taken with such reasonable promptness as to cause no delay in the Work or in the
activities of the ~Contractor or separate contractors, while allowing s~1ffieieat time ia ti:le Arel:liteet's
fiF&iessieaal jl:llilgmeat to permit adequate review. Review of such submittals is not conducted for the purpose of
determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating
instructions for installation or performance of equipment or systems, all of which remain the responsibility of the
Contractor as required by the Contract Documents. Tile AxcbiEeet's Owner's review of the Contractor's submittals
shall not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The J\:'eftiteet's Owner's review
shall not constitute approval of safety precautions er, 1:1aless stherwise SfJeeii'teally stated by the Arehitee~. or of any
construction means, methods, techniques, sequences or procedures. The Arehiteet's Owner's approval of a specific
item shall not indicate approval of an assembly of which the item is a component.

§ 4,3,8 The AFebiteet will pref1are Cba:Age Orders aeEI CaaGtr~etiea C8aage Direetives, aaEI may &l:ltheril!e mf.nor
ehruiges ia the Work as fJFOViEieEi ill Seetiea 7.4.
§ 4.2.9 The Owner will submit CO Requests as provided in Section 6.5 of the Agreement.

~The Arehiteet Owner wilt conduct inspections to determine the date or dates of Substantial
Completion and the date of final ee~letiea, will reeeive aaEI ferwarEI te ti:le Owaer, for the 0'JiAer's reviev,. ll:fle
reeo~s, writtea warraaaes aaEI related Eleeameats req1:1ired by the Coatract aad assemble<:! by the Caatraetor, ll:fiEI
w+ll iss1:1e a fiaal Certifieate fer Pay mea~ l:lfiOR sempliaaee with t8e req~ireraeats ef the Ceatraet
Dec1:1meats.completion.

§ 4.3.10 If the Owner aaEI,'\:Fci:litoeet agFee, ti:le Aichitect •Nill J3revide eae or IIISFEI J3rejeet represeatati'les to assist ia
eaR"yiag e~t the Ai=eaiteet's respoasieilities at ti:le site. The d1:1ties, reHfJeRsiailities aaEi liraitatioas of i~t:ltberity ef
Sl:l€R fiTejeet FEifJFesea~tiYe!'l shallee
as set ferth ia Qft exhteit ta be iACOffJOFaEeEi ia tile Cealfaet Dasl:lmeats.
§ 4.2.11 Contractor represents and warrants it is an independent contractor and an employer subject to all applicable
unemployment compensation, occupational safety and health. workers' compensation, or similar statutes so as to
.relieve Owner of _any responsibility or liability for treating Contractor's employees as employees of Owner for the
purpose of their safety or of keeping records. making reports or paying of any payroll taXes or contribution.
Contractor agrees to defend, indemnify and hold Owner harmless and reimburse them for any expense or liability
incurred under said statutes in connection with employees of Contractor. including a sum equal to any
unemployment benefits paid to those who were Contractor's employees. where such benefit payments are charged to
Owner under any merit plan or to Owner reserve accounts pursuant to any statute. Nothing contained in the Contract
Documents or any subcontract awarded by Contractor shall create any contractual relationship between any
subcontractor and Owner.

AIADocument A201 ~ - 1997.Copyright @19"11, 1915,1918,1925, 1937,1951. 1958, 1961, 1963, 1966, 1970,1976.1987and 1997byTheAmerican
Institute ot Architects. All rights reserved. WARNING: Thla AlA• Document Ia protected by U.S. Copyright law and International Treatlea.llnauthorlzed 22
reproducUon or dlatrlbullon of this AIA8 Document, or any portion of It, may result In aevere civil and criminal penalties, and will be proaecuted to tho
mnlmum extent possible under the law. This document was pr.oduced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll · lntellicenter · Dallas v2 (5· 19·06) (986536188)

R.P. Appx. 362 51
§ 4.2,11 The t\rehheet will iatsrpret aeEi EieeiEie matters eooeemiag 13erfermaaee aaaer oaEI reEJllll=emeat~ af, the
Contract DocHRleRffi oR writtea reetHe.st of eil:Rer H'te OvfHer or Coaa-eeter. The ,'\rehiteet's FeSfJORse te SHch reEJHests
will be maEie ie writiag wit Ria aay time limits agreeE11:1~ea or etherwise with reaseaaele prem)!ltaess. If ao
agFeeme~ is RlaEie ceacemiag H'te time withia which iaterpretatieas reEjHireEI ef me Arc:!Htec.t shall ee fl:lmisheEI iR
eomtJ~ianee vlith a=tis Seetiea 4.2, tkea EieJay shall aet ee reeegRir:eEi ea aeeeaRt ef faihu=e ey the Arehiteet te farnish
s1:1ch iaterpFetatieas Yatil 15 Eiays after 'NAtteR ref:}Yest is IRilEie fer them.
§ 4.2.12 Contractor represents and warrant~ that it will keep and have available all necessary records and make all
payments. reports. collections and deductions and otherwise do any and all things so as to fully comply with all
federal. state and local laws. ordinances and regulations as they affect performance of the Contract Documents, so as
to fully relieve and protect Owner from any and all responsibility or liability therefore or in regard thereto: (I) the
production. purchase and sale. furnishing and delivering. pricing, and use or consumotion of materials. supplies and
equipment (2) the hire, tenure or conditions of employment of employees and their hours of work and rates of the
payment of their Work. and (3) the keeping of record~. making of reports. and the payment. collection and/or
deduction of rederal. state. commonwealth and local taxes. contributions. pension funds. welfare funds. or similar
assessments.

§ 4.2.12 bi!ElFJ!lretatieas &REI Eieeisieas ef the Areliiteet will ee eeasiHteAt witk: tile iRteAt of aRt:! reaseAaely iRferaele
frem me Ceaka~t DeeYmefl~ aaa wiU ae iR writieg er ia the farm af drawiags. Wliea maiEiRg SHell iaterpFetatiBRS
ana iajlial Eiesisioas, the. :1\J:ehitest will eREieaYer te seeYre faia=tful ~erformS:Rce by eeth OwReF ant:! Ceaa=aeter, will
Ret shew JJartiality te either anEI wiJI aet ee liaele fer resylts of iaterpretatiens or Eieeisioar; se reAEiereEi ia geeEI f11ith.

§ 4.2.13 T!!e Are:!Hteet's Eleei:sieas ea matters relatiag te aestlietie effect •n•iJI ee flfl&l if eonsisteat with the iRteRt
e*f!Fe:;seEi ia the CoH:tTact DecYmeats.
§ 4.2.13 Nothjng in the Contract Documents shall be deemed to represent that Contractor. or any of Contractor's
·employees or agents. are the agents. representatives or employees of Owner. Contractor shall be an independent
contractor and shall have resoonsibility for and control over the details and means for performing the Proiect.
Anything in the Contract Documents that may appear to give Owner the right to direct Contractor as to the details of
the perf0rmance of the Project or to exercise a measure of control over Contractor shall mean that Contractor shall
follow tbe desires of Owner onJy as to the intended results of the Project.

§ 4.3 CLAIMS AND DISPUTES
§ 4.3.1 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 di~putes and matters in question between the Owner and Contractor
arising out of or relating to the Contract. Claims must be initiated by written notice. The responsibility to
substantiate Claims shaU rest with the party making the Claim.

§ 4.3.2 Time Limits on Claims. Claims by either party must be initiated within 2 1 days after occurrence of the event
giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim,
whichever is later. Claims must be initiated by written notice to the Architect aad the other party.

§ 4.3.3 Continuing Contraat Performance. Pending final resolution of a Claim except as otherwise agreed in writing
or as provided in Section 9.7 .I and Article 14, the Contractor shall proceed diligently with performance of the
Contract and the Owner shall continue to make payments in accordance with the Contract Documents.

§ 4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (I)
subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract
Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily
found to exi.<;t and generally recognized as inherent in construction activities of the character provided for in the
Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions
are disturbed and in no event later than 21 days after first observance of the conditions. Tlie Areliitect willf3F9fl'!~tly
iRvest:igate sl:lcl:! cenEiiheRs aad, if ~Re~· Eiiffer materially aRE! ea1:1se Qfl inerease er Eieerease ia tke CeRa=aeter' ~ east
ef, er t:ime re€:j:HireEI fer, perfern:taaee ef any f'art ef tae \Veri<, •.viii reeeRl!BeAEi aa ef:}eitable aEljYstmeat ia the
Ceaa-aet St~fl'! er Ceaa-eet Tia1e, or eats. If the :1\J:ehitect determiaes that tile eoaditieas at the site are. Ret materially
EiiffereRt from tkese inEiisateEi iR lhe CeAlraet Deeymeats aREI that ae ehaRge ia tae terms of tae CeRtraet is jYstifieEI,
H'te ,'\reJ:iiteel saall se ROt:ify a=te o·. . aer aRE! Ceaa-aeter iR writing, stat:iag the reaseas. Claifl'lfi ey eia=ter flertj ill
ElfJJ!lEISit:iea te SYeh EletermiRatieR mYSt ee maae \ Athia 21 Elays after a=te Architeet has gi'leA Rotiee afthe EieeisieR. If
1

AlA Document A201lN-1997. Copyright © 1911, 1915, 1918, 1925, 1937. 1951 , 1958, 1961, 1963., '1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Lew and lntem•tlonal Treatlea. Unau1horlzed 23
reproduction or dletrlbutlon of thll AlA• Document, or any portion ot It, may result In severe ~;:lvlland criminal penaltlea, and will be prosecuted to the
maximum extent posaible under the law. This document was produced by AlA software at 14:42:43 on 05119/2006 under Order No.1 000182995_ 1 which
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R.P. Appx. 363 52
the conditions encountered arc materially different, the Contract Sum and Contract Time shall be equitably adjusted,
but if the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the
aajllstm~t ~shall be referred te the Areh:i.teet fer ie:ilial dete!'ffii:flatieR, Sl:lejeet te Fl:lrtl:!er praeeeaiRgs Pl:lfSI:IaBt
t9 Seetiea 4.4.considered a Claim and be resolved in accordance with Sections 4.4-4.6 below.

§ 4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum,
written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required
for Claims relating to an emergency endangering life or property arising under Section 10.6.

§ 4.3.6 If the Contractor believes additional cost is involved for reasons including but not limited to (I) a written
interpretation from the Ai'ehitect, Owner, (2) an order by the Owner to stop the Work where the Contractor was not
at fault, (3) a written order for a minor change in the Work issued by the Areaiteet, Owner. (4) failure of payment by
the Owner, (5) terminati.o n of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds,
Claim shall be filed in accordance with this Section 4.3.

§ 4.3.7 Claims for Additional Time
§ 4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided
herein shaH be given. The Contractor's Claim shall include an estimate of cost and ofprobable effect of delay on
progress of the Work. In the case of a continuing delay only one Claim is necessary.

§ 4:3.7.2 If eaverse weather eoaairioas are the easis fer a Claiftl fer aelairieRal tiftle, SHch Claim shall ee elecl:IFAeRtea
ey aala Sl:IBStEllltiat4ng that Vf'eather eena.itioes were aeserm!H fer the periea ef time, eo1:1la eot !:lave eeea reaseaaely
I!:Baeit>atea ena.haEla:B ea¥erse effect OR the sched1:1lea cOBSa.=l:letioa
§ 4.3.7.2 Adverse weather conditions or adverse site conditions caused by adverse weather may be the basis for a
Claim for additional time to the extent that the days lost during a particular calendar month due to such inclement
weather exceeds three (3) days of lost time (in work days) for the calendar month. If adverse weather conditions or
adverse site conditions caused by adverse weather are the basis for a Claim for additional time, such Claim shall be
documented by·data substantiating that either (i) weather conditions had an adverse effect on the scheduled
construction. or (ii) weather conditions prevented the type of Work then scheduled, or (iii) adverse site conditions
caused by adverse weather prevented the type of Work then scheduled.

§ 4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or
property because of an act or omission of the other party, or of others for whose acts such party is legally
responsible, written notice of such injury or damage, whether or not insured. shall be given to the other party within
a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other
party to investigate the matter.

§ 4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally
contemplated are materially changed in a proposed Change Order er Cossl:f~:~el:ioR Clumge Directive so that
application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or
Contractor, the applicable unit prices shall be equitably adjusted.

§ 4.3.10 Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for
consequential damages arising out of or relating to this Contract. This mutual waiver includes:
.1 dan1ages incurred by the Owner for rental expenses, for losses of use, income, profit, financing,
business and reputation, and for loss of management or employee productivity or of the services of
such persons; and
.2 damages incurred by the Contractor for principal office expenses including the compensation of
personnel stationed there, for losses of financing, business and reputation, and for loss of profit
except anticipated profit arising directly from the Work.

This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination
in accordance with Article 14. Nothing contained in this Section 4.3.10 shall be deemed to preclude an award of
liquidated direct damages, when applicable, in accordance with the requirements of the Contract Documents.

AlA Document A201"' - 1997. Copyright © 1911, 19l5, 1918, 1925, 1937, 1951 , 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The ATflerican
Institute of Architect$. All rights reserv~ WARNING: This AIA8 Document Ia protected by U.S. Copyright Law end lnternstlonsl Trestles. Unauthorl:ted 24
reproduction or dlstrlbuUon of thlt AlA Docum ent, or any portion of lt1 may result In severe civil and criminal penaiUea, and will be prose<:utad to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/23.12006, and is not for resale.
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R.P. Appx. 364 53
 § 4.4lNDEMNITY & RESOLUTION OF CLAIMS AND DISPUTES
§ 4.4.1 Deeiniaa ef Arekiteet. ClaiFRs, iaelaeiag tk9se allegiag aR err9r 9F 9R'Mssi9R l:)y tke kekiteet aut elEelal:iiag
mefie arisiag aaeer SeetieR!i 10.3 tA.rewgl:l lQ.5, shall ee refen-ee initially £9 tile i\:rek:it.eet fer eeeisioa. Aa iaitial
eeeisi9B By tRe t\reftiteet shftlJ Be f8Ej!:IH8Q aS a eeftE!itiea f!F8eeEleat te IBeEf.iatiOB, areiB"-atiOB OF litigatioB of alJ
·Claims eetweeR tke Ceatraeter aae Owaer arisiRg f'AOF to tke eate fiaal!lllYFfi8At is eue, URiess 3Q eayl; kave fltl!iSee
after the ClaiFR kas eeea referree to Hie AreA:iteet with ae eeeisiea l:laviag eeea reaaeree ey tA:e Arekiteet. Tke
Arehiteet will aot eeeiee dispwtes betweeR the Ceatraeter aaa perseRs or eAtities otker thQR tke Owaer.
§ 4.4.1 Contractor agrees to defend. indemnify and hold Owner. the affiliated companies of Owner. and all of their
directors, officers, employees. agent~ and representatives. harmless from and against any claim, demand, cause of
action. liability. loss or expense arising:
.1 By reason of Contractor's actual or asserted failure to comply with any law, ordinance. regulation. rule
or order. or with the Contract Documents. This Section 4.4. 1.1 includes, but is not limited to, fines or penalties by
government authorities and claims arising from Contractor' s actual or asserted failure to pay taxes .

.2 From actual or asserted violation or infringement of rights in any patent. copyright, proprietary
information. trade secret or other property right caused or alleged to be caused by the use or sale of goods. materials,
methods, processes. designs or information. including construction methods. construction equipment and temporary
wnstruction facilities. furnished by Contractor or its subcontractors in performance of the Project. Should any goods
or services provided by Contractor become, or appear likely to become. the subject of a claim of infringement of a
patent. copyright or other property right Contractor shall. at Owner's option, either procure for Owner the right to
continue using such gOOds or services. replace same with equivalent. non-infringing goods or services. or modify the
goods ()r services so that the use thereof becomes non-infringing. provided that any such modification or
replacement is ofequal quality and provides equal perfonnance to the infringing goods or services.

.3 From actual ,or alleged contamination. pollution. or public or private nuisance. directly caused by any
negligence or intentional misconduct of the Contractor or its subcontractors.

§ 4.4.2 The Arehiteet v.411 :eeviev; Claims aRa w~tl:liR tea aays af the reeeifjt ef the ClaiFR tal~ aee er FRere af the
feJia?l'ia:g ae~aes: (I) FeEJ:~test aEieitieeal SYppertiag eata freFR the elaimaet era respoase witk SI:IJ3pertieg data A-am
me ether f!'!l:llJ', (2) rejeet t:l!e ClaifR mwkele aria flart, (3) aj3preve the Claim, (4) sHggest a e9FRfl£9FRifle, er (5)
advise the flaFties taat tke Arebiteet is l::IAable to resolve the ClaiFR if tke Arehiteetlaeks saffieieat ieferFRatiea te
e"alaate tke FBerit§ 9f the Qaiffl er if the i\:rehiteet e9A€Il::lees_that, ia the Anzhitest' s sale eiseretiea, il weala ee
ifl:appropriate fer the 1\i:ehiteet to resolve the ClaiFR.
§ 4.4.2 Contractor's indemnity obligations in this Subparagraph 4.4 arc subiect to the provisions of
Subparagraphs 4,3.10 and 11.4.7 and ArtiCle 10. and shall apply to the extent that the amount to be
indemnified was not caused by the negligence or willful misconduct of. or by defects in design furnished by,
the party to be indemnified. Contractor's defense and indemnity obligations shaD include the duty to
reimburse any attorneys' fees and expenses reasonably incurred by Owner for legal action to enforce
Contractor's indemnity obligations.

§ 4.4.3 Ia tWall::lat-iag Claiffl5. the Arsltiteel FRay, aut skall Bet ee eeligatee te, seasalt witk flf Reek ffiforFRalieR freffi
eitlte.r f!arty 9F froFR f'e£S9as vlith Sf!eeial lffiowleage er eJEf!ertise who FRay assist tlte Arehiteet iR reaeeriRg a
eeetsiae. The Arekiteet may reEJaest the Owner te authorize reteaaea of sael:l l"ersoRs at tke Owaer' s eM:pease.
§ 4.4.3In the event that the indemnity provL~ions in the Contract Documents are contrary to the law governing the
Contract Documents, then the indemnity obligations applicable hereunder shall be construed to be to the fullest
extent allowed by applicable law.

§ 4.4.4 If tke Arehiteet reEJaests a party to (:lFOVide a reS(:lOR:68 te a Clai-m er te ~mish aeaitioaal Sl::lj3j39rti-ag eal:a,
s.aeh flarly shall resfleRe, withia tee eays after reeeipt ofsush re~1:1est, aHa shall either fl£9\'ide a resf!oese oe tke
FeEJ:l:lestee SllflflOI'tiRg eata, QQ~'iSe the Arekiteet \'/ReA tlte FeSfiORSe er Sllfl!"9rtiR:g eata wiH ee famiskee or aEivise tbe
:Arehi*eet that BO SYflfl9rURg eata will ee fl::lmishee. Upea reeeiflt of the respease 9f sappertiag eata, if aey, me
Arehiteet will eit-Rer rejeet er apf!reve tlte ClaiFR ia whole or ia f!art.
§ 4.4.4 With respect to claims by employees of Contractor or its subcontractors. the indemnity obligations created
under this Section 4.4 shall not be limited by the fact of. amount or type of benefits or compensation payable by or
for Contractor. its subcontractors or suppliers under any workers' compensation, disability benefits. or other
employee benefits acts or regulations. and Contractor waives any limitation of liability or immunity arising from
workers' compensation or such other acts or regulations.

AlA Document A201TM - 1997. Copyright @ 1911 , 1915. 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: Thla AlA• Document Ia protected by U.S. Copyright Law and lntematlonel Treaties. Unauthorized 25
reproduction or distribution of this AlA" Document, or any portion of It, may result In sevel'8 civil and criminal penaltlea. and will be prose-cuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/23/2006, and is not for resale.
User Notes: Clayco A201 • Koll · lntellloenter • Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 365 54
§ 4.4.5 The ;\rekiteet vt'ill &flflFO're or Fejeet ClaciHis ey writteR deeisioa, wR:ich shall state tke reauoa~ tkerefer ltfld
wJ:tiee shall aeti:fy tee flarties af aay eJ.laage ia tke Caatraet S1:1H1 oF CoRtraet TiHie or eatk. The a'f'lj:l£0\'al er rejeetioa
ef a Cla'i:£6 ey the AreR:iteet shll'll be fiaal aHEi eiad:iag OR the j'larties bl:lt Sl:lbj eet te med:iatiea aRel arbitratiOR.
§ 4.4.5 Unless Contractor has provided Owner with a bond or other form of security in form and amount reasonably
acceptable to Owner. amounts may be retained from payments otherwise du·e Contractor as shall reasonably be
considered necessary to satisfy any mechanics' or materialmen's lien.~ for damages that fall within Contractor's
indemnity obligations under this Section 4.4 until such claims suits or liens have been settled and satisfactory
evidence to that effect .has been furnished to Owner. Notwithstanding anything to the contrary in the foregoing. if
the Contractor provides the Owner with a lien bond or other form of security sufficient to cover mechanics' liens
filed by the Contractor or any Subcontractor. the Owner shall not withhold payment as set forth in this Section or in
Section 9.5. I herein. The Contractor will diligently pursue the removal of any lien filed by a Subcontractor. and.
regardless of whether a lien bond is provided as set forth above. during such time the Owner shall not satisfy or pay
off the lien or otherwise settle or compromise the Contractor's claim; provided, however. that promptly after a final.
non-appealable judgment is rendered directing that the property be sold to satisfy the lien. and in any event prior to
tbedate ofsuch sale. the Contractor will satisfy the lien and pay the Contractor all amounts owing.

§ 4.4.& Vlkea a writteH Eleeisiea ef the ,'\i:ekiteet states tJ.lat (l) tke aeeisieR is fiaal al:lt Sl:lajee.t te H!ed:iaaea aaa
areitratieR aad (2,) a aemaREI fer arbitratieR af a ClaiR! severed by SliGh eeei&ieR HII:ISt ae HIaGe witJ.liR 30 days afte:r
tBe Sate OR wfl:iea the 'flart)' Hl.aking tl:!.e S8FHa.Rel reseives the flRal WFJ\'teH EleeisieH, thea faiiYf@ te demaREI areitrati9R
witkia said 39 d:ays' fleried skaJI resYit ia the Archlteet'!> deeision becoHiing final aad biaaiag l:lflOR tke Owaer afld
CeRtraeter. If tl:le ,'\:rekiteet Eeaeers a deeisiea a.fEe£ arbitratiea preeeeeiag!l J:lave eeea iaitiated, s1:1eJ:i deeisien may
be eHtered as e\"'.:Eleeee, e1:1t saa!I Ret Sl:lfleFsede arbitratieR J3FOeeediegs l:lftiess tke deeifd8R is aeeeptaele tO all parties
eeeeemea.
§ 4.4.6 Notwithstanding any provision in the Contract Documents to the contrary, Owner and Contractor
mutually waive any and all claims against the other for special, consequential or punitive damages arising out
of or relating to the Contract Documents. This waiver includes but is not limited to damages incurred for
rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of
management or employee productivity or of the services of such persons;

§ 4.4.7 Upon receipt of a Claim against the Contractor or at any time thereafter, the Arel:!iteet er tJ.le Owner may, but
is not obligated to, notify the surety, if any, of the nature and amount of the C laim. lf the Claim relates to a
possibility of a Contractor's default, the ,'\i:el:!iteet OF the Owner may, but is not obligated to, notify the surety and
request the surety's assistance in resolving the controversy.

§ 4.4.8 If a Claim relates to or is the subject of a mechanic' s lien, the party asserting such Claim may proceed in
accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the ClaiR! B)'
~by mediation or by arbitration.

§ 4.5 MEDIATION
§ 4.5.1 Any Claim arisin,g out of or related to the Contract, except Claim6 relaliag to aes~hetie effeet !IRa e*eept tbose
waived as provided for in Sectioll$ 4.3 .J 0, 9.I 0.4 and 9 . I0.5 shall, after iniaal Eleeisiea by tke A.reJ.liteet er 30 days
after s~:~emissiea ef ~l:!e ClaiR! te tJ.le A:eJ.liteet, be subject to mediation as a condition precedent to arbitratieR er
binding arbitration.~Except with the Owner's prior written consent, neither the assertion of a Claim nor the
iastitl:ltiea prosecution of ~mediation or eEjl:litable pFeeeediags by either party.arbitration hereunder shall cause
any Work to be haJted pending resolution of same.

§ 4.5.2 The parties shall endeavor to resolve their Claims hy mediation which, unless the parties mutually agree
otherwise, .shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration
Association C\llTently in effect. Request for mediation shall be filed in writing with the other party to the Contract
and with the American Arbitration Association. The request may be made concurrently with tbe filing of a demand
for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings,
which shaJl be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer
period by agreement of the parties or court order.

AlA Document A201 110 -1997. Copyright @ 1911 , 1915. 1918, ~925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, t 976, 1987 and 1997 by The American
Institute of Architects. All rights reserve~. WARNING: This AJA Document Is p rotected by U.S. Copyright Law and lntematlon11l Treaties. Unauthorized
reproducUon or distribution of t hla AJA Document, or any portion of It, may result In eevere civil and criminal penalties, and will be prollelcuted to the 26
maximum extent poss.lble under the law. This document was produced by AlA software al t4:42:43 on 05119/2006 under Order No.1 000182995_1 which
expires on 7/2312006, and is 11otlor resale.
User Notes: Clayco A201 • Koll · lntellicenter · Dallas v2 (5·19·06) (986536188)

R.P. Appx. 366 55
§ 4.5.3 The parties shall share the mcd!iator's fee and any filing fees equally. The mediation shaU be held in the place
where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall
be enforceable as settlement agreements in any court having jurisdiction thereof.

§ 4.6 ARBITRATION
§ 4.6.1 Any Claim arising out of or related to the Contract, except Claims relatiag te aesthetie effeetanEI e:Kee13t those
waived as provided for in Sections 4.3.10, 9.1 0.4 and 9.1 0.5, shaH, after Elee3sioa ey t.he Arehi~eet or 30 Elays after
s~JemissieR ef tae Claim te tae Afeftiteet, shall be s ubject to binding arbitration. Prior to arbitration, the parties shall
endeavor to resolve disputes by mediation in accordance with the provisions of Section 4.5.

§ 4.6.2 Claims not resolved by mediation shall be decided by binding arbitration which, unless the parties mutually
agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American
Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party
to the Contract and with the American Arbitration Assoeiatiea, aaEI a eej3y 5hall ee f:iJeEI wim me
AJ.:GAiteot.Association. BY lNITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.

Owner Initials Contractor Initials

§ 4.6.3 A demand for arbitration shall be made within tke time limits specified i-s Seetieas 4.4 .e eBfi 4.€i.l as
&j3j31ieaele, anEI iR ether eases \'lithia a reasonable time after the Claim has arisen, and in no event shall it be made
after thedate when institution of legal or equitable proceedings based on such Claim would be barred by the
applicable statute of limitations as det·ermined pursuant to Section I ~.7.

§ 4.6.4 Limitation on Consolidation or Joinder. No arei~atiea arisiRg o11t of or relatiag te the Cena=aet shall iacl11de,
ey eefl:'leliEiatiee erjei-BEier or iR aay aEher mQfiRer, the Arekiteet, the i\::effiteet's empleyees er eefltlai~Rts, e:Keej3t
ey v,rriuea eeaseat.eeataiaiag specifie refereaee to me Agreemeat aaEI sigRee by the Arehiteet, OwRer, Cea~aeter
EI8Eiany ether persea er eat:ity tiollght to ee jeiAed. ~le arei~atieR shall iRelllele, ey eoaseliEiatieR erjeieEier or ia any
etd:ler maRBer, fJal'ties ether man td:le 0'1;ser, CeRa-actor, a se13arate eena=aetor as EieserieeEI i-s: A"'tiele 9 aad ather
persons sllestaijliia:lly iJwelYeEI iRa eemmea c.'jHesaea offact or law whe5e preseRce is re€JilireEI if eeH!plete relief is
te ee aeeen:EieEI ia areitra~ieR. No 13ersoR er eatity ether than tile Owaer, CeRtraerer er a fiej3arate eentraeter as
Eleserieed ia Acr-ae!e 6 shall ae iBciYdeEI as ae erigiaal th-ir4 fJartY er aEIEiitietHtl third fJaFtY te aR a;reia=atien whese
iaterest er respeAsieility is i-as11bs~anti a.J. Ceeseet te areia=atioR iR\'eh•iRg aa aEiditieRal 13erseR er eatity tihall ROt
eeastit11te eeaseat to areitratie:a ef a Claim Ret eleserieed thereia or with a j3ersee or effiity aet B:IHHee er described
thereiR. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity
duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court
havjng jurisdiction thereof.

§ 4.6.5 Clailtl$ and Timely Assertion of Claims. The party filing a notice of demand for arbitration must assert in the
demand all Claims then known to that party on which arbitration is permitted to be demanded.

§ 4.6.6 Judgment on Final Award. The award rendered by the arbitrator or arbitrators shall be final, and judgment
may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

ARTICLE 5 SUBCONTRACTORS
§ 5.1 DEFINITIONS
§ 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the
Work at the site. The term "Subcontractor" is referred to throughout the Con1ract Documents as if singular in
number and mearis a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor"
does not include a separate contractor or subcontractors of a separate contractor.

§ 5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to
perform a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract

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Institute ol Architects. All rights reserved. WARNING: This AtA• Document Is protected by U.S. Copyright Lew and International Treallea. U'nauthorlzed 27
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R.P. Appx. 367 56
Documents as if singular in number and means a Sub-subcontractor or an authoriz.ed representative of the Sub-
subcontractor.

§ 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
§ 5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as
practicable after award of the Contract, shall furnish in writing to the Owner tbro~:~gli ~e Arekiteet the names of
persons or entities (including those who are to furnish materials or equipment fabricated to a special design)
proposed for each principal portion of the ~Work and will, upon request therefor by Owner. update such list
during construction of the Project. The A rchitect Owner will promptly reply to the Contractor in writing stating
whether or not the Owner er lke Afebiteet, Owner, after due investigation, has reasonable objection to any such
proposed person or entity. Failure of the Owner or Architect to reply promptly shall constitute notice of no
reasonable objection. Notwithstanding anything herein to the contrary, the Contractor may subcontract portions of
the Work to the Contractor or divisions of the Contractor pursuant to a subcontract agreement. and the subcontract
sum thereof shall constitute a Cost of the Work. but only if such subcontract agreement is approved in writing in
advance by Owner.

§ 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner er Arekheet has made
reasonable and timely oojection. The Contractor shaJJ not be required to contract with anyone to whom the
Contractor has made reasonable objection.

§c5.2.3 lf the Owner er Arekiteet has reasonable objection to a person or enti"ty proposed by the Contractor, the
Contractor shaJJ propose another to whom the Owner ar A::ebiteet has no reasonable objection. If the proposed but
rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall
be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order
shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the Contract
Sum or Contract Time shall be ano wed for such change unless the Contractor has acted promptly and responsively
in submitting na.mes as required.

§ 5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner er
Arehiteet makes reasonable objection to such substitute.

§ 5.3 SUBCONTRACTUAL RELATIONS
§ 5.3.1 By appn~priate agreement, written where legally required for validity, the Contractor shall require each
Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by
terms of the Contract Documents, and! to assume toward the Contractor all the obligations and responsibilities,
including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents,
assumes toward the Owaer aae :t\Feliiteet. Owner. Each subcontract agreement shall preserve and protect the rights
of the Owner aRe Arel:titeet under the Contract Documenlc; with respect to the Work to be performed by the
Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor,
unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress
against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate,
the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The
Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement,
copies of the Contract Documen~ to which the Subcontractor will be bound, and, upon written request of the
Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may
be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of
such documents available to their respective proposed Sub-subcontractors.

§ 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
§ 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided
that:
.1 assignment is effective only after termination of the Contract by the Owner for cause pursuant to
Section 14.2 and only for those subcontract agreements which the Owner accepts by notifying the
Subcontractor and Contractor in writing; and
.2 assignment is subject to the prior rights of the s urety, if any, obligated under bond relating to the
Contract.

AlA Document A201 TIII-1997. Copyright © 1911 , 1915, 1918, 1925, 1937, 1951 , 1958, 1961 , 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA" Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 28
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R.P. Appx. 368 57
§ 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor's
compensation shall be equitably adjusted for increases in cost resulting from the suspension.

ARTICJ.:E 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
§ 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
§ 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's
own forces, and to award separate contracts in connection with other portions of the Project or other construction or
operations on the site under Conditions of the Contract identical or substantially similar to these including those
portions related to insura.n ce and waiver of subrogation. If the Contractor claims that delay or additional cost is
involved because of such action by the Owner, the Contractor shall make such Claim as provided in Section 4.3.

§ 6.1.2 When separate contracts arc awarded for different portions of the Project or other construction or operations
0n the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes
each separate Owner-Contractor Agreement.

§ 6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate
contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with
other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The
Contractor shaH make any revisions to the construction schedule deemed necessary after a joint review and mutual
agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate
contr;,tctors a,nd the Owner until subsequently revised.

§ 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations
related to the Project with the Owner's own ~forces or pursuant to separate contracts with other contractors.
the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the
Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this
Article 6 and Articles 10, 11 and 12. Without limiting the generality of the foregoing. if the Owner awards separate
contracts with any other contractors for any work at the Project site during the performance of the Work. then the
Owner shall cause each and every such other contractor (and their subcontractors of any tier) to name the Contractor
as an additional insured on all liability insurance policies maintained by such other contractor (and their
subcontractors of any tier) to the extent such policies cover liabiJities relating to the Project or other work being
performed at the Project site. The Owner shall furnish to the Contractor written evidence that such insurance is in
effect and that the Contractor has been named an additional insured as aforesaid upon the first to occur of the award
or execution of any such separate contract.

§ 6.2 MUTUAL RESPONSIBILITY
§ 6.2.1. The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and
storage of their materials and equipment and performance of their activities, and shall connect and coordinate the
Contractor's construction and operations with theirs as required by the Contract Documents.

§ 6.2.2 If part of the Contractor's Work depends fo( proper execution or resu Its upon construction or operations by
the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly
report to the ~apparent discrepancies or defects in such other construction that would render it
unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an
acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and
proper to receive the Contractor's Work, except as to defects not then rea-;onably discoverable.

§ 6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a
separate contractor because of delays, improperly timed activities or defective construction of the Contractor. The
Owner shall be responsible to the Contractor for costs incurred by the Contractor because of delays, improperly
timed activities, damage to the Work or defective construction of a separate contractor.

§ 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially
completed construction or to property of the Owner or separate contractors as provided in Section 10.2.5.

§ 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are
described for the Contractor in Section 3.14.
AlA Document A201TM - 1997. Copyright© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The Americatl
lns1itute of Architects. All rights reserved. WARNING: This AlA• Document Ia p rotected by U.S. Copyright Law and International Treatlea. Unauthorized 29
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§ 6.3 OWNER'S RIGHT TO CLEAN UP
§ 6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under
their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish,
the Owner may clean up and the Ar-eiliteet will alloeate the cost among those FeSf'Oiliitble.responsible shall be
equitably allocated.

ARTICLE 7 CHANGES IN THE WORK
§ 7.1 GENERAL
§ 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the
Contract, by Change Order, Coastr~etioa Cllange Di£eet1ve or oraer fer a miaor ehange in the Work, subject to the
limitations stated in this Article 7 and elsewhere in the Contract Documents.

§ 7.1.2 A Chaage OrEier sllall ae aaseEf lipOR agreeffieRt affiORg the Owner, Contraetor ana Arehlteet; a CeHstruetiofl
Change Difeetive Fe~ ~:!ires agreeffient ay tlle Owner ana Ai:Gaiteet aA:d RiQy or ll'l&Y AOt ae agreed to ay !:he
Contraetor;· aa oFde£ for a £Bitter e!lange ia the Work may ee iss1:1ea ey the t\rehiteet a:loae.
§ 7.1.2 A Change Order shall be based upon agreement between the Owner and the Contractor as provided in Sectj()n
6.5 of the Agreement.

§ 7.1.3 Cha~:~ges in the Work shall be performed under applicable provisions of the Contract Documents, and the
Contractor shall proceed promptl'y, unless otherwise provided in the Change OFaer, CeHstRtetion Change Direetive
er erEier fer a ~Hiaer ehange iB the Work.Order.

§ 7.2 CHANGE ORDERS
§ 1.2.1 A Chaege OrEier is a written instrHtHent prepared ey the ,'\ftlJ:Iiteet aaa sigaea ay the 0VIflef, Coatraeter l:lHEI
Areaiteet, statiag tkeif agreetHMlli~e:n all ef the fellewiRg:
,1 eaaage in tke Werk;
.2 the amooot ofthe adjust~Hent, if aay, ia the Conwaet 8~ffi; and
,3 the e)(teRt ef tlle aeljast~Heet, if aRy, in the Ceatrast Time.
§ 7.2.1 If the other provisions of the Contract require that a Change Order be issued and the Owner and the
Contractor are unable to agree upon the terms thereof as provided in Section 6.5 of the Agreement
within ten days of a written demand given by either party to the other party to so agree. then the
dispute shall be resolved ·as provided in Article 4 herein. Tn any such dispute resolution proceedings
the parties agree that the terms of the Change Order set forth in subparagraphs (i)-(vii) of Section 6.5
ofthe Agreement shall be determined.

§ 7.2.2 Methoa!i In any dispute..resolution proceeding over a Change Order, the methods used in determining
adjustments to the Contract Sum may include those Jjsted in Section ~7.33.

§ 7.2.3 Contractor shall not suspend performance of the Contract Documents during the review and negotiation of
any Change Order.

§ 7.3 CONSTRUCTION CHANGE DIRECTIVES
§ 1.3.1 A Ceastruetiea Oiaage Difeeti..,·e is a written oraer !*E!PaFea ay t:l:te Arehiteet afl£1 sigaed ay the Owner aad
,<\fehiteet, Elireetiag a ehaage iR tlle Werk prier to ag:ree~HeRt on aEijlist!fleet1 'if any, in the CoRa:&et Sl:llfl or Contrast
TIH!e, Of 9oth. The Owner ~Hay ay COf!Strl:letioa Ckaage Direetive. witROI:Il iflvaliaatiag tke Coatraet, orEler ehange s
in the \Veri< within tlle general seope of the CoBtraet eonsi!itiAg ef aEiditieRS, aeletiens Of other re,·isioas, the
Ceatraet S1:1ffi ana Contraet Time 9etag aelj1:1s*eEi eeeerEI:iRgly.
§ 7.3.1 !Intentionally Omitted].

§ 1.3.2 ;>'\ Ceast:rlietien ChaBge Difeeti'<'e saall ae l:lsea ia tlle aasenee of le~al agreement OH the terms of a Chaage
OFEier.
§ 7.3.211ntentionally Omitted).

§ 7.3.3 If the Coastn1etien Change Direeti·;e Order provides for an adjustment *&-ill...the Contract Sum, the adjustment
shall-may be based on one of the following methods:

AlA Document A2011M -1997. Copyright© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: Thle AlA• Document Ia protected by U.S. Copyright Law 811d International Treatlea. Unauthorized 30
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 .1 mutual acceptance of a lump sum properly itemized and supp<>rted by sufficient substantiating data to
permit evaluation;
.2 unit prices stated in the Contract Documents or subsequently agreed upon;
.3 cost to be determined in a manner agreed upon by the parties and a Rll:ltl:laJly aeeeptaele fix eEl er
Contractor Fee based on the percentage feet-set forth in Section 5.1.2 of the Agreement: or
.4 as provided in Section 7.3.6.

§ 7.3.4 UflOA Feeeipt of a CoRstFl:letioR ClulAge DiFecti·;e, ilie CeAtraeter shall premf!t.IY preeeeEI witfl the ellaage iA
the Werle iAWll¥eEI. aREI aEI¥ise t:Re Arelliteet ef t!ie Ceatr-aeter' s agTeemeRt er ElisagreemeRt with tf:le JaetheEI, if aRy,
pro•,riaea iA tile Con!ltRietieR Change Directive for aetermiaiag the proposed aEiji:IStmeat iR tl:!e Ceatraet Sl:lm er
Ceatract Time.
§ 7.3.4 [Intentionally Omitted!.

§ 7.3.5 IJnteritionally Omitted).
§ 7.3.5 A CefiStrl:letieA Cl:!aage Directive sigaee ay tile Ceatraeter iRaieates the agreemeat ehJ:te Cealfaeter
there•.vith; iaoluaiag aEij~:~stmeRt iR Ce;ntrast S1:1m. aRG Ceetrast Tim.e er t:Re Rltiltf:led fur Eletenaiaiag tl:!em. .. SYeh
agFeeffteRt shall be eft:eel:ive immeEiiMely aAEi shall ee reeoraea as a CI:!Mlge Order.

§ 7.3.6 lf-In any dispute between the Contractor does Ret reSfHlRa j:lrflFRpltly ar disagrees witf:l and the Owner over the
method for adjustment in the Contract ~Sum in connection with any Change Order or in connection with. any
other adjustment in the Contract Sum to which the Contractor is entitled under the Contract Documents. then the
method and the adjustment shaH be determined by tile J\.Fekiteet on the basis of reasonable expenditures and savings
of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, a
reasoaaele allewaRse fer eYerlleaa aR9 ~refit. Contractor' s Fee based on the percentage set forth in Sectjon 5.1.2 of
the Agreement. In such case, aae alse 1:1aEier Sectiea 7.3.3.3, the Contractor shall keep and present, in such form as
the Arehiteet Owner may reasonably prescribe, aa-a reasonably itemized accounting together with appropriate
supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Section 7.3.6
shall be limited to the following:
.1 costs of labor, including social security, old age and unemployment insurance, fringe benefits
required by agreement or custom, and workers' compensation insurance;
.2 costs of materials, supplies and equipment, including cost of transportation, whether incorporated or
consumed;
.3 rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor
or others;
.4 costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to
the Work;aaa
.5 additional costs of supervision and field office personnel directly attributable to the eaaage.change;
and
.6 if the Agreement is an AlA Document A Ill or A 121. all other costs which would be considered to be
Costs of the Work under the Agreement.

§ 7.3.7 The amount of credit to be .allowed by the Contractor to the Owner for a deletion or change which results in a
net decrease in the Contract Sum sha!J be actual net east as eell41rmea B)' the Architect. cost. When both additions
and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit
shall be figured on the basis of net increase, if any, with respect to that change.

§ 7~3.8 Pending final determination of the total cost of a CeRstrHetiea Change Direetive te t:Re Q·,..'fler, Order,
amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by
a Change Order indicating the parties' agreement with part or all of such cos.ts. For aay portiea ef costs and the
Owner shall be obligated to pay such east that FemaiAs costs together with a Contractor's Fee based on the
percentage set forth in aiSfl\:lte, the Areaiteel will malce aa iAteriFR aeteFFRiaatioR for pl:lrpeses efmeately
eeft:iijeatiea fur payFReAt fer these eests. That aeterFRinatioa Section 5.1.2 of eost shan adjust the Coatract 81:1m ea
tee same basis as a Cfiaage OrEier, sY&jeet Agreement to the right of either ~arty to disagree &fla assert a elaim ia
aeeora&flee with Article 4.Contractor.

§ 7.3.9 When the Owner and Contractor agree with tf:le aeteFFRiaatiea ftl&Ele by the Architect concerning ~.ill!Y
adjustments in any one or more of the Work. the Contract Sum aM-or the Contract Time, or otherwise reach
AlA Document A201"' -1997. Copyright © 1911 , 1915, 1918, 1925, 1937, 1951 , 1958, 1961 ,1963, 1966, 1970, 1976, 1987 and 1997 by The American
111
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R.P. Appx. 371 60
agreement upon the aEij1:1stmeets. adjustments in the items set forth in subparagraphs (i)-(vii) of Section 6.5 of the
Agreement. such agreement shall be effective immediately and shall be recorded by preparation and execution of an
appropriate Change Order.

§ 7.4 MINOR CHANGES IN THE WORK
§ 7.4.1 The Architect Owner will have authority to eR:Ief-make minor changes in the Work not involving adjustment
in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract
Documents. Such changes shall be effected by written order and shall be binding on the OwAer ana Contractor. The
Contractor shall carry out such written orders promptly.

ARTICLE 8 TIME
§ 8.1 DEFINITIONS
§ 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in
the·Contract Documents for Substantial Completion of the Work.

§ 8.1.2 The date of commencement of the Work is the date established in the Agreement.

§ 8.1.3 The.date of Substantial Completion is the date certifies B)' the Arehiteet when Substantial Completion is
actually achieved in accordance with Section 9.8.

§ 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically
defined.

§ 8.2 PROGRESS AND COMPLETION
§ 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement
the Contractor confirms that the Contract Time is a reasonable period for performing the Work.

§ 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely
commence 0peratioos on the site or elsewhere prior to the cffccti vc date of insurance required by Article 11 to be
furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the
effective date of such insurance. Unless the date of commencement is established by the Contract Documents or a
notice to proceed given by the Owner,.the Contractor shall notify the Owner in writing not less than five days or
other agreed period before commencing the Work to permit the timely filing of mortgages, mechanic's liens and
other security interests.

§ 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantia] Completion
within the Contract Time.

§ 8.3 DELAYS AND EXTENSIONS OF TIME
§ 8,3,1 If the CeAa:aeter is clelayea at ilAY time ie the commencement or progress ef th:e Werk BY ae act er eegleet of
the Owaer er Afehitect, er ef Bfl eff!ployee ef either, or ef a sepllfate eeea-aet:or emJ:lloyea l:ly !fle OwRer, or ey
changes eFE!ereE! iA the Wor-k, or ey la~er EHSfH:Ites, t'ire, I:IBI:ISHal aelay in deliveries, HAaveiaaele eas1:1ahies or ether
caYses eeyeea t:Re Cent:raetor's eeea-el, er BY aelay al:ltheri:tea By the Owfler peAEiiRg meaiatieA aRe areil:fatioA, er
B~' ether ea~:~ses which the Ai'eliitect aetefftliaes nlay ji:IStify aelay, thea the CeRtract Time shall Be ex:teaaea B)'
QaRge OFEler fer s1:1eh reaseAaele tiate as the ArcJ:Iitect may cletermiee.
§ 8.3.1 If the Contractor js delayed at any time in the commencement or progress of the Work that adversely affect
the sequencing of the Work resulting 1n a delay in Substantial Completion by (i) an act or neglect of the Owner. or
of an employee of Owner. or of a separate contractor emplgyed by the Owner. or (ii) changes ordered in the Work.
or (iii) labor disputes, or (iv) fire. or (v) unusual delay in deliveries. or (vi) the imposition after the date of the
Agreement of guotas or other restrictions on the ability of the Contractor to obtain material or eguipment. or (vii)
unavoidable casualties or (viii) other causes not reasonably foreseeable on the date the Work commenced or which
are beyond the Contractor's control, or (ix) adverse weather conditions or adverse site conditions as set forth in
Section 4.3.7.2, or Cx) delays caused by governmental authorities (not caused as a result of fault on the part of the
Contractor) or (xi) delay authorized by the Owner pending mediation and arbitration (provided that no such event
has been caused by the delay or negligent or other wrongful act or omission of the Contractor or any of its
employees.or agents). and provided that Contractor has delivered to Owner wdtten notice of the occurrence of such
event within ten (I 0) business days after the occurrence thereof. then the Contract Time shall be extended by
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Institute of Architects. All rights reserved. WARNING: This AIA8 Document Is protected by U.S. Copyright Lew and International Treaties. Unauthorized 32
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R.P. Appx. 372 61
Change Order for a reasonable time and the Contract Sum shall be adjusted to the extent reasonably necessary to
compensate the Contractor for any increases in the Cost of the Work caused by such delay.

§ 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Section 4.3.

§ 8.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of
the Contract Documents.

ARTICLE 9 PAYMENTS AND COMPLETION
§ 9.1 CONTRACT SUM
§ 9.1.1 The Contract Sum is stated in the Agreement and, including authorized' adjustments, js the total amount
payable by the Owner to the Contractor for performance of the Work under the Contract Documents.

§ 9.2 SCHEDUlE OF VALUES
§ 9.2.1 Before the first Application for Payment, the Contractor shall submit to the Afe~Owner a schedule of
values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate
its accuracy as the Afehiteet Owner may require. This schedule, unless objected to by the Arehtteet, Owner. shall be
used as a basis for reviewing the Contractor' s Applications for Payment.

§ 9.3 APPLICATIONS FOR PAYMENT
§ 9~3:1 At least tett-twenty days before the date established for each progress payment, the Contractor shall submit to
the Afehiteet Owner an itemized Application for Payment for operations completed in accordance with the schedule
of values. Such application shall be notarized, if required, and supported by s uch data substantiating the Contractor's
right to payment as the Owner er Areaiteet may reasonably require, such as 'c opies of requisitions from
Subcontractors and material suppliers, and reflecting rctainage if provided for in the Contract Documents. See the
Agreement for additional provisions relating to Applications for Payment.

§ 9.3.1.1 As tJrevieeEI i:a Seetiea 7.3.8, sae8 Bymeats received
from the Owner sl:ta:ll, ta the eest ef Hie CeAtraeter' s kRewleEige, iafefRlQtiea &REI eelief, shall be free and clear of
liens, claims, security interests or encumbrances in favor of the Contractor, S ubcontractors, material suppliers, or
other persons or entities making a claim by rea~on of havjng provided labor, materials and equipment relating to the
Work. To the extent permitted by applicable law. good and clear title to all materials furnished by Contractor under
the Contract Documents for the Project shall pass to Owner upon incorporation into the Pro ject. Contractor shall
ensure that subcontractors from whom Contractor obtains materials do not retain or reserve title to such items. and
Contmctor shall defend, indemnify and hold Owner harmless from any such claims by Contractor's subcontractors.
Notwithstanding the foregoing, the care. custody and control of Contractor's Work incorporated into the Project
shall remain with Contractor until such Work has been accepted jn writing by Owner and shall thereon pa~s to
Owner unless Owner notifies Contractor in writing that such care. custody and controJ is assumed by Owner at a
earlier date.
AlA Document A201lltl -1997. Copyright © 191 1. 1915. 1918, ~925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976. 1987 and 1997 by The American
Institute of Architects. All rights reserveflinioR the refJreseatatioRs to the Owner reql:lired ay SeetieR
9.4 .2 eaf'Jiot ae made. If the Afehiteel iAt~aaele te eertify withholds a payment ia the ame~:~al of all or any portion of
an Application for Payment. then tbe a\fJfJJieatioa, !:lie ,<\i:ehiteet Owner will notify the Contractor aHa OwHer as
provided in Section 9.4. I. If the Contractor and Arehiteet the Owner cannot agree on a revised amount, the A:-ehiteet
Owner will promptly iss1:1e a Certifieate for PaymeRt for lli!Y_the amount fer-which the Arehltect is aale te malce s~:~ca
R!lfJreSea~oas to the Owaer. not in dispute. The ,'\Fehiteet Owner may a:lse-withhold a Certitieate fur Paylfleat
payment or, because of subsequently discovered evidence, may ~request a refund of the whole or a part of a
Certifieate fur Paymeflf payment previously tssue&,-made to such extent as may be reasonably necessary i:fl-the
A£e8iteet's BfJinioa to protect the Owner from loss for which the Contractor is responsible, iaelaEiia:g less resulting
from acts and on1issions described in Section 3.3.2, because of:
.1 defective Work not remedied;
.2 third party claims filed or reasonable evidence indicating probable filing of such claims against
Owner, the Land or the Project or reasonable evidence indicating the probable filing of such claims.
unless security acceptable to the Owner is provided by the Contractor to protect Owner against such
claims (such security may include, without limitation. Contractor's compliance with its
indemnification or bonding obligations under the Ceatraerer;Contract);
.3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or
equipment;
.4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum;
.5 damage to the Owner or another contractor;
.6 reasonable evidence that the Work wiU not be completed within the Contract Time, and that the
unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay;
er
.7 persistent failure lo carry out the Work in accordance with the Contract bocuments; or
.8 without limiting the generality of the above, any other reason for which Owner is entitled to withhold
or deduct payment under the express provisions of the Contract Documents.

§ 9.5.2 Wben the above reasons for withholding eertifiaatiea payment are removed, eertit=ieatiea payment will be
made for amounts previously withheld.

AlA Document A201TM -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The A.nnerican
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S, Copyright Law and International Treaties. Unauthorized 34
reproduc~on or dletrlbutlon of lhll AlA• Document, or any portion of It, may result In severe civil end criminal penaiUes, end will be pro~eeuted to the
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R.P. Appx. 374 63
§ 9.6 PROGRESS PAYMENTS
§ 9.6.1 After the Arehiteet Owner has issaeE:I a CeFtif;ieate received an Application for PayFAeRt, Payment which
complies with the requirements of the Contract Documents, the Owner shall make payment in the manner and
within the time provided in the Contract DeeaRle.R£5, aeEI shall se eetify the Arehiteet.Documents.

§ 9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the
amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said
Subcontractor is entitled, retlecling percentages actually retained from payments to the Contractor on account of
sucb Subcontractor's portion of the Work. The Contractor shaH, by appropriate agreement with each Subcontractor,
require each Subcontractor to make payments to Sub-subcontractors in a similar manner.

§ 9.6.3 The Arshi~es~ Owner will, on request, furnish to a Subcontractor, if practicable, information regarding
percentages of completion or amounts applied for by the Contractor and acti.on taken thereon by the Arehiteet aREI
0wner on account of portions of the Work done by such Subcontractor.

§ 9.6.4 Neither Contractor shall use the sums advanced to it pursuant to the Contract documents solely for the
pumose of the performance of the Work. The Owner ear A:ehi~ee~ shall not have an obligation to pay or to see to
the payment of money to a Subcontntctor except as may otherwise be required by law.

§ 9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Sections 9.6.2, 9.6.3 and
9.6.4.

§ 9.6.6 A CeFtiflea~ fer PayRleet, a progress payment, o.r partial or entire use or occupancy of the Project by the
Owner shall not constitute acceptance of Work not in accordance with the Contract DoeaRleRts.Documents and shall
not relieve Contractor of its obligations under the Contract Documents with respect thereto.

§ 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum.
paym~.:uts received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by
the Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or both, under
contract with the Co_ntractor for which payment was made by the Owner. Nothing contained herein shall require
money to be placed in a separate account and not commingled with money of the Contractor, shall create any
fiduciary liability or tort liability on the part of the Contractor for breach of urust or shall entitle any person or entity
to an award of punitive damages against the Contractor for breach of the requirements of this provision.

§ 9.7 FAILURE OF PAYMENT
§ 9.7.1 If the ,'\feh;i~et Owner does not ts&ae-make a CeFtif;ieate fur Payment, through no fault of the Contractor,
within~twenty days after receipt of the Contractor's Application for Payment, or if the Owner does not pay the
Contractor within seven days after the date established in the Contract Documents the amount eertifieEI ey due to the
A:reffi:teet Contractor hereunder or awarded by arbitration, then the Contractor Rlay, I:IJ:lOR seveR aEIEI:itioRal Elays'
wri~R eetiee te the Oweer aes At=ekiteel, may stop the Work until payment of the amount owing has been received.
The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the
Contractor's reasonable costs of shut-down, delay and start-up, plus interest as provided for in the Contract
Documents.

§ 9.8 SUBSTANTIAL COMPLETION
§ 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof
is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the
Work for its intended usc.

§ 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner a~:.,.ees to accept
separately, is substantially complete, the Contractor shall prepare and submit to the Arel:!iteet Owner a
comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such
list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract
Documents.

§ 9.8.3 Upon receipt of the Contractor•s list, the l\rehiteet Owner will make an inspection to determine whether the
Work or designated portion thereof is substantially complete. If the Arel:!iteet's Owner's inspection discloses any
AlA Document A201"' - 1997. Copyright © 1911 , 1915, 1918, 1925, 1937, 1951 , 1958. 1961, 1963, 1966, 1970, 1976. 1987 and 1997 by The American
Institute of Architects. All rights relierved. WARNING: This AIA8 Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 35
reproduction or distribution of thl1 AIA8 Document, or any portion otlt, may re1ullln severe civil and criminal penaltle1, and will be prosecuted to the
maximum extent possible under the law. Thi.s document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1 000182995_ 1 which
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R.P. Appx. 375 64
item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the
Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended
use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item
upon nptification by the Arehit.eet Owner. In such case, the Contractor shall then submit a request for another
inspection by the /'.fehiEeet Owner to determine Substantial Completion.

§ 9.8.4 When the Work or designated portion thereof is substantially complete, the At=ehi~ee~ Owner will prepare a
Certificate of Substantial Completion which shall estabUsh the date of Substantial Completion, shall estabHsh
responsibilities of the Owner and Contractor for security, maintenance, beat, utilities, damage to the Work and
insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the
Certificate. Warranties required by the Contract Documents shaiJ commence on the date of Substantial Completion
of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion.
Upon the Owner providing such Certificate of Substantial Completion. Contractor shall cause (a) the Architect to
sign and deliver to Owner and Prudential a certificate in the form of Exhibit "E" attached hereto. and (b) the civil
engineer for the Project to sign and deliver to Owner and Prudential a certificate in the form of Exhibit "F" attached
hereto.

§ 9.8.5 The Certific.~te of Subst.antial Completion shall be submitted to the Owner and Contractor for their written
acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if
any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment
shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents.

§. 9.9 PARTIAL OCCUPANCY OR USE
§ 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage whe01
soch portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented
to by the insurer as required under Section 11.4.1.5 and authorized by public authorities having jurisdiction over the
Work. Such partial occupancy or usc may commence whether or nm the portion is substantially complete, provided
the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments,
retrunage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in
writing concerning the period for correction of the Work and commencement of warranties required by the Contract
Documents. When the Contractor considers a portion substantially complete, the Contractor shaU prepare and
submit a list to the Arshitest Owner as provided under Section 9.8.2. Consent of the Contractor to partial occupancy
or use shalf not be.unreasonably withheld. The stage of the progress of the Work shall be determined by written
agreement between the Owner and Ce~aeter er, if ae agt:eemet'lt i:~ reaeheEl, by deeisioa of the
A:ehiteet.Contractor.

§ 9.9.2 Immediately prior to such partial occupancy r>r use, the O·Naer, Owner and the Contractor aoa Arsi:Nteet shall
jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the
condition of the Work.

§ 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not
constitute acceptance of Work not complying with the requirements of the Contract Documents.

§ 9.10 FINAL COMPLETION AND FINAL PAYMENT
§ 9.10.1 Upori receipt of written notice from Contractor to Owner that all Punch List Items have been completed and
that the Work is ready for final inspection and acceptance and upon receipt of a fmaJ Application for Payment, the
A,rel!Jteet Owner will promptly make such inspection and, when tke Arehiteet .Raas the Work aeeeptable Hnder has
been finally completed in accordance with the Contract Documents and the Contract fully performed, the kehitest
Owner will promptly isslla-a-make final Certifieate fer Paymeat stat=.iag that t:e the best payment of the Arekiteet's
lmowleage, iaformatioR all amounts due and eeliel', aad OR the easifl ef' ~Ae ,'\i'ehiteet' 5 ea Site visits aoEI iaspeetieAti,
!:he Werk BB5 beea esHtf!letea in aceeraaoee with terms ami eeadilieftS of the Ceatras~ Dee~:~mea~s aed that the eatire
ealaaee feaRS owing to 9&4:1e-the Contractor aad ROttld iR under the final Certi.Reate is d~;~e and Jlayable. The
Arelijteet' s fiaal Certificate fer Paylfleat will eeastit~:~te a fNrtJter represeatatiea tJtat ceaaitieos listed iB Sec tieR
9.1 0.2 as !3Fe6edeRt te the Ceatraster's eeif!g eatitled to tiaal fltl·}'meat ba\'e eeee fHlfilled.Contract Documents.

§ 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits
to the Ai'ehiteet Owner (I) an affidavit that payrolls, bills for materials and equipment, and other indebtedness

AlA Document A201TM -1997. Copyright © 191 1, 1915. 1918, 1925, 1937, 1951 , 1958, 1961, 1963, 1966,-1970, 1976, 1987 and 1997 by The American
tnstitu1e of Archi1ects. All rights reserved. WARNING: This AlA• Document Ia protcc;ted by U.S. Copyright Law and International Treaties. Unauthorized 36
reproduction or dlatrlbutlon of t hla AfA8 Document, or any portion of It, may result In aevere clvlf and criminal peneitlea, end will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1 000182995_ 1 which
expires on 7/23/2006. and is not lor resale.
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R.P. Appx. 376 65
connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (Jess
amounts withheld by Owner) have been paid or otherwise satistied, (2) a certificate evidencing that insurance
required by the Contract Documents to remain in force after tina! payment is currently in effect and will not be
canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written
statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the
period required by the Contract Documents, (4) consent of surety, if any, to final paymeRt payment, (5) a certificate
stating that to the best of Contractor's knowledge, the Project is in compliance with all applicable laws, statutes,
ordinances, rules and regulations with respect to the Project. and that there is no action or proceeding pending or
threatened before any court or administrative agency with respect to the validity of the certificates. permits, licenses,
waivers. consents. approvals, authori7.ations. registrations. qualifications, designations. declarations and filings
required or compliance with any laws, statutes. ordinances. rules and regulations and Contractor has not received
any notice to the contn.lry. (6) evidence satisfactory to Owner that all utilities necessary or appropriate for the
operation of the Project have been installed and are fully operational and are actually operating to the satisfaction of
the governmental authorities or utility companies responsible for the operation thereof and that all costs in
connection with such installation and operation (including but not limited to impact fees. development fees. tap·on
fees and recapture costs) have been paid in full and ~if required by the Owner, 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, to the extent and in such form as may be designated by the Owner. If a
Subcontractor refuses to furnish a release or waiver required by the Owner, rhe Contractor may furnish a bond
satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments
are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in
discharging such lien, including all costs and reasonable attorneys' fees.

§ 9.10.3lf, after Substantial Completion of the Work, final completion thereof is mater.ially delayed through no fault
of the Contractor or by issuance of Change Orders atl'ecting final completion, ana tbe A:£e9i.teelse eeRfirms, the
Owner shall, upon application by the CeRtraster aHa eertifieatieR by the Arehiteet, Contractor, and without
terminating the Contract, make payment of the balance due for that portion of the Work fully completed and
-accepted. lf the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the
Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due
for tha(,portion of the Work fully completed and accepted shall be submitted by the Contractor to the ,'\i'effiteet flA er
te eeftifieatiea ef st~ek p&ymeRt. Owner. Such payment shall be made under terms and conditions governing final
payment, except that it shall not constitute a waiver of claims.

§ 9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from:
,1 liens, Claims, security interests or encumbrances arising oul of the Contract and unsettled;
.2 failure of the Work to comply with the requirements of the Contract Documents; or
.3 terms of special warranties required by the Contract Documents.

§ 9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a
waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at
the time of final Application for Payment.

ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
§ 10.1 SAFETY PRECAUTIONS AND PROGRAMS
§ 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Contract.

§ 10.2 SAFETY OF PERSONS AND PROPERTY
§ 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to
prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected thereby;
.2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the
Site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-
subcontractors; and
.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements,
roadways, structures and utilities not designated for removal, relocation or replacement in the course
of construction.
AlA Document A201"' - 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright L1w and International Treaties. Unauthorized 37
reproduellon or distribution ol thla AlA• Docu ment. or any portion al it, may result In !Ievere civil and erimlnal penalties, and will be proSGCuted to the
maximum extent possible und.er the law. This document was produced by AlA software at 14:42:43 on 05119/2006 under Order No.1000182995_1 which
expires on 7/23/2006, and is not for resale.
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R.P. Appx. 377 66
 Contractor shall comply strictly with local. municipal. provincial. stare and national laws. orders, and
regulations pertaining to health or safety which are applicable to Contractor or to the Project, including
without limitation the Occupational Safety and Health Act of 1970 (84 U.S. Statutes 1590), as amended and
any state plans approved thereunder. and regulations thereunder. to the extent applicable. and Contractor
warrants the materials. equipment and facilities. whether temporary or permanent. furnished by Contractor
in connection with the performance of the Project shall comply therewith. At all times while any of
Contractor's employees. agents or subcontractors are on Project. Contractor shall provide them with a safe
place of employment, and Contractor shall inspect the places where its employees. agents or subcontractors
are or may be present on the Project and shall promptly take action to correct conditions which are or may
become an unsafe place of employment for them.

Contractor shall incorporate necessary safety precautions and programs in a written safety program manual.
Contractor shall provide Owner with a copy of such safety program manual.

Contractor shall take reasonable steps to erect and maintain safeguards for the protection of workers and the
public and eliminate orabate safety hazard~ created by or otherwise resulting from the performance of the
Work. Contractor shall take ail precautions r subcontractors that is to be used on the
job site shall be in operating. condition. safe. fit for the uses for which intended. and suitable for the safe.
legal and efficient performance of the Project.

§ 10.2.2 The Contractor shall g·ive notices and comply with applicable laws, ordinances, rules, regulations and lawful
orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss.

§ 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract,
reasonable safeguards for safety and protection, including posting danger sig ns and other warnings against hazards,
promu.lgating safety regulations and notifying owners and users of adjacent sites and utilities.

§ 10.2.4 The Contractor will not use. store or keep at the Project any har.ardous materials. except those customarily
andpruclently used in construction of projects similar to the Project and in compliance with all environmental laws.
When use or ,storage of explosives or o ther hazardous materials or equipment or unusual methods arc necessary for
execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of
properly qualified personnel.

§ 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property
insurance required by the Contracr Documents) to property referred to in Sections I 0.2. 1.2 and 10.2. 1.3 caused in
whole ox: in part by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed
by any of them, or by anyone for whose act~ they may be liable and for which the Contractor is responsible under
AlA Document A2011M -1 997. Copyright @ 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966. 1970, 1976, 1987 and 1997 by The American
Institute ot Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and International Treatlea. Unauthorized 38
reproducUon or distribution of this AIA111 Document, or any portion of It, may reault In M vere civil and criminal peneiUee, end will be prosecuted to the
maximum extent possible under the lew. This document was produced by AlA soltware at 14:42:43 on 05/19/2006 under Order No.1 000182995_ 1 which
expires on 7/23/2006, and is not tor resale.
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R.P. Appx. 378 67
Sections I0.2.1.2 and I0.2. J.3, except damage or loss attributable to acts or 0 1nissions. of the Owner or Arehiteet er
anyone directly or indirectly employed by eiH:ier ef theiH, the Owner. or by anyone for whose acts either of them
may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the
Contra<;:tQr are in addition to the Contractor's obligations under Section 3.1&.

§ 10.2.6 T he Contractor shall designate a responsible member of the Contractor' s organi7.ation at the site whose duty
shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise
designated by the Contractor in writing to the Owaer aaEl A-rebiteet.Owner.

§ 10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its
safety.

§ 10.3 HAZARDOUS MATERIALS
§ 10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons
resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB),
encountered on the site. by ~e Contractor, the Contractor shall, upon recogni:ting the condition, immediately stop
Work in the affected area and report the condition to the Owner aaEl Arrebiteet in writing.

§ 10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material
or substance reported by the Contractor and, in the event such material or substance is found to be present, to verifY
that it has been rendered harmless. UnJess otherwise required by the Contract Documents, the Owner shall furnish in
writing to the Contractor aAEl Areb:iteet the names and qualifications of persons or entities who are to perform tests.
·verifying the presence or absence of such material or substance or who are to perform the task of removal or safe
C'e, the O·Nfler shall se iRf'enfl the Cestraeter iR writisg prier te
eemmeaeemeat ef the Werk. The Ce~eter may t8ea effeet iRstmmee which will fHeteet the iRt8fests ef the
Ceatraeter, S~:~eeefltfaeters afla S<~e sueee·a traeters iR the Werk, a.Rd by SJ)f:JFOpriate ChaRge Oreler the SllSt thereef
shall ee eaargeel te !:be OwRer. l:f the Cefta=aetor is elamageel ey l:he faihlre er Regleet ~:~f the OwRer te pl:lrehase er
maietaia iRsaraaee as eleseribee aee'>'e, withe at se ROtifyiag the Ceal:faeter ift writiag, thea the OwRer shall eear ai1J
reaseRable ees~s properly att:rie~:~table therete.fintentionally Omitted].

§ 11.4.1.3 If the property insurance requires deductibles, the Owner shall pay as a Cost of the Wor.k costs not
covered because of such elea~:~etibles.deductibles; provided, however. that except for claims arising from tlood or
earthquake damage, the cost of such deductible.~ shall not exceed $10,000 per occurrence.

§ 11 .4.1 .4 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work
in transit

§ 11.4.1.5 Partial occupancy or use in accordance with Section 9.9 shall not commence until the insurance company
or companies providing property insurance have consented to such partial occupancy or use by endorsement or
otherwise. The Owner and the Contractor shall tak,e reasonable steps to obtain consent of the insurance company or
companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that
would cause cancellation, lapse or reduction of insurance.

§ 11.4.2 Boiler and Machinery Insurance. Tae Oweer Contractor shall purchase and maintain boiler and machinery
insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during
installati.o n and until final acceptance by the Owner; this insurance shall include interests of the Owner, Contractor,
Subcontractors and Sub-subcontractors in the Work, and the Owner and Contractor shaH be named insureds.

§ 11.4.3 Loss of Usc Insurance. The OwRer, at the OwRer's ef!aea, may Contractor shall purchase and maintain such
insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however
AlA Document A201 1 M -1997. Copyright <&> 1911, 1915. 1918. 1925, 1937, 1951, 1958, 1961 , 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and International Treaties. U'nauthorized 41
reproduction or distribution of this AlA• Document, or any portion of It, may result In severe civil 1nd criminal penalties, and will be proncuted to the
mulmum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05119[2006 under Order No.1000182995_1 which
expires on 712312006, and is not for resale.
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R.P. Appx. 381 70
caused. The OwReF Contractor waives all rights ef aetiee against tl:le CoRa:aeter Owner for less ef 1:1se af the
OwRer's flF9flert-y, iRehHliRg ceesequeRtial losses a~:~e te damages caused by fire or other ha;r,aras hewe:Yer
~perils to the extent covered bv property insurance obtained pursuant to the terms of this Section 11.4.

§ 11,4.4 [Intentionally Omitted!.
§ 11.4,4 If the Ceatraeter reEl1:1ests ia writiRg that iRs~:~raaee fer risks ether than thene ae!;erieea hereiR er ether
Sfleeial ea~:~ses ef less ee iRel~:~aea iR the J3F9f!erty ia!ll:lraRee peliey, the OwRer shall, if J3ossiele, iRel~:~Eie s1:1eh
iRSSraRee, QRQ l:ke east the.reef shall ee ehargeEI ta the Caea:aetar ey &J3flF9tJJ'iate Chaflge Order.

§ 11.4.5 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent
to the site by property insurance under policies separate from those insuring the Project, or if after finaJ payment
property insurance is to be provided on the completed Project through a po.licy or policies other than those insuring
the Project during the construction period, the Owner shall waive aJI rights in accordance with the terms of Section
11.4:7 for damages caused by fire or other causes of loss covered by this separate property insurance. AJI separate
policies shall provide this waiver of subrogation by endorsement or otherwise.

§ 11.4.6 Before an exposure to loss may occur, the ~ontractor shall file with the Ce11kaeter Owner a copy of
each policy that includes insurance coverages required by this Section 11.4. Each policy shall contain all generally
applicaole conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a
provision that the policy will not be canceled or aHowed to expire, and that it!> limits will not be reduced, until at
least 30 ·d ays' prior written notice has been given to the Contractor.

§ 11.4.7 W~vers of Subrogation. The Owner and Contractor waive aH rights against ( l ) each other and any of their
subcontractors, sub-subcontractors, agents and employees, each of the other. and (2) the Arehiteet, l\r-ekitect' s
ceRsliltaets, separate contractors described in Article 6, if any, and any of their subcontractors, sub-subcontractors,
agents and employees, for damages caused by ftre or other causes of loss to the extent covered by property insurance
obtained pursuant to this Section 11.4 or other property insurance applicable to the Work, except such rights as they
have to proceeds of such ins.urance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall
require of the Arehiteet, Arehiteet' s eoRsl:lltaRts, separate contractors described in Article 6, if any, and the
subcontractors, sub-subcontmctors, agents and employees of any of them, by appropriate agreements, written where
legally required for va.Jidity, similar waivers each in favor of other parties enumerated herein. The policies shall
provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shaH be effective as to a
person or eritity even though that person or entity would otherwise have a duty of indemnification, contractual or
otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an
insurdble interest in the property damaged.

§ 11.4.8 A loss insured under Owner's property insurance shall be adjusted by the Owner as fiduciary and made
payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of any
applicable mortgagee clause and of Section 11 .4.10. The Contractor shalJ pay Subcontractors their just shares of
insurance proceeds received by the ContractOr, and by appropriate agreements, written where legally required for
validity, shalJ require Subcontractors to make payments to their Sub-subcontractors in similar manner.

§ 11.4.9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occurrence of an insured loss,
give bond fo,r proper performance of the Owner's duties. The cost of required bonds shaH be charged against
proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds so received, which the
Owner shall distribute in accordance with such agreement as the parties in interest may reach, or in accordance with
an arbitration award in which case the procedure shall be as provided in Section 4.6. If after such loss no other
special agreement is made and unless the Owner terminates the Contract for convenience, replacement of damaged
property shall be performed by the Contractor after notification of a Change in the Work in accordance with Article
7.

§ 11.4.10 The 0wner as fiduciary shaH have power to adjust and settle a loss with insurers unless one of the parties in
interest shaH object in writing within five days after occurrence of Joss to the Owner's exercise of this power; if suc h
objection is made, the dispute shall be resolved as provided in Sections 4.5 and 4.6. The Owner as fiduciary shall, in
the case of arbitration, make settlement with insurers in accordance with directions of the arbitrators. If distribution
of insurance proceeds by arbitration is required, the arbitrators will direct such distribution.

AlA Document A201'M - 1997. Copyright © 1911 , 1915, 1918, 1925, 1937. 1951, 1958. 1961 , 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 42
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R.P. Appx. 382 71
§ 11.5 PERFORMANCE BOND AND PAYMENT BOND
§ 11.5.1 The Owner shall have the right to require the Contractor to furnish bonds covering faithful performance of
the Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specifically
Iequired in the Contract Documents on the date of execution of the Contract.

§ 11.5.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment
of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall permit a
copy to be made.

ARTICLE 12 UNCOVERING AND CORRECTION OF WORK
§ 12.1 UNCOVERING OF WORK
§ 12.1.11f a portion of the Work is covered contrary to the Arel:liteet's F8EjY8Sl er te requirements specifically
expressed in the Contract Documents, any written inspection schedule agreed to by Contractor, or as previously
requested in writing by Owner, it must, if required in writing by the Areffiteoet, Owner, be uncovered for the
Areffiteet's Owner's examination and be replaced at the Contractor's expense without change in the Contract Time.

§ 12.1.2 If a portion of the Work has been covered which the ~has not specifically requested to
examine prior to its being rovered, the Arel:liteet Owner may request to see such Work and it shall be uncovered by
the Contractor. -If such Work is in accordance with the Contract Documents, costs of uncovering and replacement
shall, by appropriate Change Order, be at the Owner's expense. (f such Work is not in accordance with the Contract
Documents, correction shall be at the Contractor's expense unless the condition was caused by the Owner or a
separate contractor in which event the Owner shall be responsible for payment of such costs.

§ 12.2 CORRECTION OF WORK
§ 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
§ 12.2.1.1 The Contractor shal) promptly correct Work rejeeted by the Arel:liteet er failing to conform to the
requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or
not fabricated, mstalled or completed. Cost~ of correcting such rejected Work, including additional testing and
inspections and compensation for the A:reffi\eet's serYiees &Ad expenses made necessary thereby, shall be at the
Contractor's expense.

§ 12.2.2 AFTER SUBSTANTIAL COMPLETION
§ 12.2.2.'1 In addition to the Contractor's obligations under Section 3.5, if, within one year after the date of
Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties
established under Sectien 9.9.1, or by terms of an applicable speciaJ warranty required by the Contract Documents,
any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor
shalLcorrect it promptly after receipt of written notice from the Owner to do so unless the Owner has previously
given the Contractor a written acceptance of such condition. The Owner sham! give such notice promptly after
discover)' of the condition. During the one-year period for correction of Work, if the Owner fails to notify the
Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights t0 require
correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct
nonconforming Work within a re.asonable time during that period after receipt of notice from the OwRer er
/'&emteet, Owner. the Owner may correct it in accordance with Section 2.4.

§ 12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first
performed after Substantial Completion by the period of time between Substantial Completion and the actual
performance of the Work.

§ 12..2.2.3 The o.ne-year period for correction of Work shall not be extended by corrective Work performed by the
Contractor pursuant to this Section 12.2.

§ 12.2.3 The Contractor shall remove from the site portions of the Work which arc not in accordance with the
requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner.

§ 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or
partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work
which is not in accordance with the requirements of the Contract Documents.

AlA Document A201TM -1997. Copyright © 1911, 1915, 1918, 1925. 1937, 1951 , 1958, 1961 . 1963, 1966. 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This A1A8 Document Ia protected by U.S. Copyright Law and International Treaties. Unauthorized 43
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R.P. Appx. 383 72
§ 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to
other obligations which the Contractor might have under the Contract Document.<;. Establishment of the one-year
period for correction of Work as described in Sec~ion 12.2.2 relates only to the specific obligation of the Contractor
to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract
Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish
the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work.

§ 12.3 ACCEPTANCE OF NONCONFORMING WORK
§ 12.3.1 If the Owner prefers to accept Work whic)l is not in accordance with the requirements of the Contract
Documents, the Owner may do so instead of requiring hs removal and correction, in which case the Contract Sum
will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has
been made.

ARTICLE 13 MISCELLANEOUS PROVISIONS
§ 1:3.1 GOVERNING LAW
§ 13.1.1 The Contract shall be governed by the law of the place where the Project is located.

§ 13.2 SUCCESSORS AND ASSIGNS
§ 13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal
Fepresentatives to the other party hereto and to partners, successors, assigns and legal representatives of such other
party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as provided
in Section 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the
other. 1f either party attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsil;>le for -all obligations under the Contract. Notwithstanding the foregoing. Owner may assign the
Contract Documents to Prudential or any entity controlled by Prudential.

§ 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to an institutional lender providing
construction financing for the Project. In such event, the lender shall assume the Owner' s rights and obligations
under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such
assignment. Contractor hereby subordinates any mechanics" and materialmen's liens or other claims or
encumbrances that may be brought by Contractor against any or all of the Work, the Land or the Project to any liens
granted in favor of Owner's lender(s). whether such lien in favor of Owner's lender(s) is created. attached or
perfected prior to or after any such liens, claims or encumbrances. and shall require by subcontract its
Subcontractors, and Sub"subcontractors to the extent required by Owner's lender(s), to similarly subordinate their
lien. claim and encumbrance rights. Contractor agrees to comply with reasonable request of Owner for supporting
documentation required by Owner's lender(s). including any necessary lien subordination agreements. affidavits or
other documents that may be required to demonstrate that Owner's property and premises are free from liens. claims
and encumbrances arising out of the furnishing of Work under the Contract. This subordin ation of lien is made in
consideration of and a~ an inducement to the execution and delivery of this agreement. and shall be applicable
despite any dispute between the parties hereto or any others. or any default by Owner under the Contract Documents
or otherwise. Owner's lenders may require periodic inspections and certifications by an inspector or inspecting
architect. and Contractor will make the Project available at all times for such. inspections.

§ 13.3 WRITTEN NOTICE
§ 13.3.1 Written notice shall be deemed to have been du~y served if delivered in person to the individual or a member
of the firm or entity or to an officer of the corporation for which it was intended, or if delivered at or sent by
registered or certified mail to the last business address known to the party giving notice.

§ 13.4 RIGHTS AND REMEDIES
§ 13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder
shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available
by law.

§ 13.4.2 No action or failure to act by the Owner, Architect or Contractor shaJI constitute a waiver of a right or duty
afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a
breach thereunder, except as may be specifically agreed in writing.

AlA Document A201''"' - 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951. 1958, 1961, 1963. 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and lrrtarnallonal Treaties. Unauthorized
reproduction or distribution of this AIA8 Document, or any portion of It, msy result In severe civil and c:r1mlnel penalties, and will be prosecuted to the 44
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R.P. Appx. 384 73
§ 13.4.3 If any mediation or arbitration is commenced by either party hereunder to enforce the obligations of the
other party. then (a) the identity of the prevailing party in any such proceeding shall be determined by the mediator
or arbitrator (whichever is applicable). (b) such prevailing party shall be reimbursed by the nonprevailing party for
all of the prevailing party's reasonable out-of-pocket expenses incurred in connection therewith. including without
limitation reasonable attorneys' fees and (c) the mediator or arbitrator (whichever is applicable) shall be authori7.ed
to make an award of such expense in any such proceeding.

§ 13.5 TESTS AND INSPECTIONS
§ 13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws,
ordinances, rules, regulatjons or orders of public authorities having jurisdiction shall be made at an appropriate time.
Unless otherwise provided, the Contractor shall make arrangements for such test~. in~pections and approvals with .an
independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall
bear all related costs of tests, inspections and approvals. The Contractor shall give the A:-crutect Owner timely notice
of when and where tests and inspections arc to be made so that the Arel:liteel Owner may be present for such
procedures. The Owner shall bear costs of tests, inspections or approvals which do not be.c ome requirements until
after bids are received or negotiations concluded.

§ 13.5.2 If the ,'\J:ehiteot, Owner or public authorities having judsdiction determine that portions of the Work require
additional testing.• inspection or approval not included under Section 13.5.1, the A:el:iiteet will, l:ltJ9R writteR
atttherizati~;JR fram t:Re OwRer, Owner will instmct the Contractor to make arrangements for such additional testing,
inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the
t\Fel:li~eet Owner of when.and where tests and inspections are to be made so that the Archi~ect Owner may be present
for such procedures. Such costs, except as provided in Scct)on J 3.5.3, shall be at the Owner's expense.

§ 13.5.3Jf such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure of the
portions of the Work to comply with requirements established by the Contrac t Documents, all cos~s made necessary
by such failure including those of repeated procedures and cempeRsatioR fur the Architect's serYice!'i ana expeases
shall be at the Contractor's expense.

§ 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract
Documents, be secured by the Contractot and promptly delivered tb the Areftiteet.Owner.

§ 13.5.5 If the i\Fei:Hteet Owner is to observe tests, inspections or approvals required by the Contract DocumenLc;, the
Arcrutect OwneF,will do so promptly and, where practicable, at the normal place of testing.

§ 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid
unreasonable delay in the Work.

§ 13.6 INTEREST
§ 13.6.1 Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at
such rate as the parties may agr;ee upon in writing or, in the absence thereof, at the legal rate prevailing from time to
time at the place where the Project is located.

§ 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
§ 13.7.1 As between the Owner and Contractor:
.1 Before Substantial Completion. As to act'> or failures to act occurring prior to the relevant date of
Substantial Completion , any applicable statute of limitations shall commence to run and any alleged
cause of action shall be-deemed to have accrued in any and all events not later than such date of
Substantial Completion;
.2 Between Substantial Completion and Final Certificate for Payment. As to acts or failures to act
occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the final
Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged
cause of action shall be deemed to have accrued in any and alJ events not later than the date e.f
insaaeee ef Owner is required to make the ftnal Certifieate fur Paymeet; payment hereunder; and
.3 After Final Certificate for Payment. As to acts or failures to act occurring after the reieY8flt date e.f
issaaaee of tl:le-final Certifisate fur Paymeat, payment, any applicable statute of limitations shall
AlA Document A2DtTM-t997. Copyright © 1911, 1915, 1918, 1925. 1937. 1951 , 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: Tills AlA• Document Is protected by U.S. Copyright Law and International Treatlea. Unauthorized 45
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R.P. Appx. 385 74
 commence to run and any alleged cause of action shall be deemed to have accrued in any and all
events not later than the date of any act or failure to act by the Contractor pursuant to any Warranty
provided under Section 3.5, the date of any correction of the Work or failure to correct the Work by
the Contractor under Section 12.2, or the date of actual commission of any other act or failure to
perform any duty or obligation by the Contractor or Owner, whichever occurs last.

ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
§ 14.1 TERMINATION BY THE CONTRACTOR
§ 14.1.1 The Contractor may terminate the Contract if the Work .is stopped for a period of 30 consecutive days
through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any
other persons or entities _performing portions of the Work under direct or indirect contract with th_
e Contractor, for
any of the following reasons:
.1 issuance of an order of a court or other public authority having jurisdiction which requires all Work to
be stopped;
.2 an act of government, s uch as a declaration of national emergency which requires all W<)rk to be
stopped;
.3 because the ~has not issued a Certitieale fer PaymeHl payment and has not notified
the Contractor of the reason for withholding eertifieatieH payment as provided in Section 9.4.1, or
because the Owner has not made payment eRa Certifieate fer Pa-ymeRt within the time stated in the
Contract Documents; or
.4 the Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable
evidence as required by Section 2.2. 1.

§ 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor,
Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work
under direct or indir~t contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work
by the Owner as described in Section 14.3 constitute in the aggregate more than l 00 percent of the total number of
days scheduled for completion, or 120 days in any 365-day period, whichever is less.

§ 14.1.3 If one of the reasons described in Section 14.l.l or 14.1.2 exist~, the Contractor may, upon seven da-ys'
written notice to the Ow.Rer and Arehiteet, Owner. terminate the Contract and recover from the Owner payment for
Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and
machinery, including Feasonable o~·erhead, prefit aad eamages.Contractor's Fee based on the percentage set forth in
Section 5.1.2 of the Agreement on Work completed to date.

§ 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a
Subcontractor or their agents or empJoyees or any other persons performing portions of the Work under contract
.with the Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract
Documents with respect to matters important to the progress of the Work, the Contractor may, upon Aevea additieAal
~written notice tb the Owaer aRd tRe Arehifeet; Owner. term.inate the Contract and recover from the Owner as
provided in Section 14.1.3.

§ 14.2 TERMINATION BY THE OWNER FOR CAUSE
§ 14.2.1 The Owner may terminate the Contract if tile Coatraetor::
.1 the Contractor persistently or repeatedly refuses or fails to supply enough properly skilled workers or
proper materials;
.2 the Contractor fai ls to make payment to Subcontractors for materials or labor in accordance with the
respective agreements between the Contractor and the Subcontractors;
.3 the Contractor persistently disregards laws, ordinances, or rules, regulations or arders of a public
authority having jurisdiction;
.4 a mechanic's or materialmen's lien, stop notice or other encumbrance is filed or served by a
Subcontractor. Sub-subcontractor or any person or entity claiming by. through or under Contractor
against the Land or the Project or any funds due Contractor, or any part thereof. and the lien, stop
notice or encumbrance is not discharged. insured over. or bonded off within 45 days after filing or
service. or
.4 otherwise is guilty of substantial bre_ach of a provision of the Contract Documents.

AlA Document A201 111 - 1997. Copyright © 1911 . 1915, 1918. 1925, 1937, 1951, 1958, 1961, 1963, 1'966, 1970, 1976, 1987 and 1997 by The American
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R.P. Appx. 386 75
 Without limiting the foregoing. Contractor shall be in default (a "Contractor Default") allowing Owner to
terminate the-Contract if Contractor fails to perform any obligation under the Contract Documents and does
not correct such failure within five (5) working days following written notice thereof.from Owner;
provided. however. no Contractor Default shall occur if the matter is not subject to being cured within such
five (5) day period. but Contractor ha~ promptly begun the correction thereof and diligently proceeds to the
correction thereof within thirty (30) working days. In the event of Contractor's Default, Owner may.
without prejudice to any other rights or remedies Owner may have. hold in abeyance further payments to
Contractor to the extent reac;onably deemed necessary by Owner to correct any Contractor Default and/or
terminate Contractor's right to continue performance of the Contract Documents by written notice to
Contractor specifying the date of termination. In the event of such termination. Owner may take possession
of the Work at the job site and any or all materials and equipment (whether delivered to the job site or on
order therefore by Contractor). tools and construction equipment at the job site and finish the Work by
whatever method Owner may deem expedient.

In the event of termination by Owner, Contractor shall, upon request by Owner. promptly advise it of all
outstanding subcontracts, rental agreements and purchase orders which Contractor has with others
pertaining to performance of the Project and furnish Owner with complete copies thereof. Upon .request by
Owner. Contractor shall assign to Owner. in form and content reasonably satisfactory to Owner.
Contractor's title to materials and equipment for the Project and those subcontraqs designated by Owner.

In the event of termination by Owner, Contractor shall not be entitled to receive any further payment until
the Project is completed. Upon completion and final acceptance of the Project, Owner will determine the
total cost incurred .in comp.leting the Project including, without limitation, additional overhead. legal and
other costs incurred by Owner to effect such termination and to complete the Project. If the total costs noted
above exceed the balance of the Contract Sum unpaid at the time of the termination. Contractor shall.
promptly after receipt of an invoice. pay to Owner the amount of such excess. Owner shall have the right
and is authorized to set-off against and deduct from any excess payable to Contractor any other damages
sufferetl. by Owner due to said default or event giving rise to the termination or due to othe'r defaults of
Contractor in complying with the terms of the Contract Documents. Contractor shall continue to be fully
liable for all such other damages to Owner. A waiver by Owner of one 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 the Contract Documents. Contractor expressly waives any formal notice by Owner of Contractor's
failure to perform, or passive breach of, Contractor's express obligations under the Contract Documents.

Contractor agrees that upon ·commencement of a case, receivership, civil action or other proceeding hy or
against Contractor under state. federal or other applicable insolvency Jaw and if such case is not dismissed
within thirty (30) days thereafter, or upon any general assignment by Contractor for the benefit of its
creditors. Owner may, in its sole discretion. treat Contractor as in default and may exercise any of the
remedies of this Section 14.2.1. In the event Owner's remedies are Jimited by the commencement by or
against the Contractor of a case under any chapter of the United States Bankruptcy Code, Contractor
stipulates. acknowledges and agrees that time is of the essence in determination of whether the Contract
Documents should be "assumed" or "rejected." within the meaning of ll U.S.C. § 365; and Contractor
therefore further stipulates and agrees that subject only to calendaring constraints of the Bankruptcy Court
having jurisdiction. it will take all necessary action to cause the assumption or rejection of the Contract
Documents on or before the thirtieth day following the filing of the Petition commencing any such case. In
such event if Contractor seeks to "assume" the Contract Documents, Contractor expressly stipulates,
acknowledges and agrees that "adequate assurance of future performance" within the meaning of 11 U.S.C.
§ 365 (b)(l )(C) means a determination that there is no foreseeable ljkelihood that there will be any further
interruption of Contractor's performance under the Contract Documents following its assumption.

In the event Owner dctcnnines, in its rea~onable discretion; that Contractor has become insolvent or is in
danger of becoming insolvent, then Owner is authorized, but not required. to make direct payment to
Contractor's subcontractors with resoect to any current or pa~t-due invoices then outstanding.
Alternatively, Owner may. in its sole discretion. require that agreements between Contractor and any such
subcontractor be assigned to Owner. and Contractor hereby authorizes and consents to any such
assignment. Owner shall be entitled to full credit against any obligations to Contractor for any payments
made to any subcontractor under this Section. whether made pursuant to assigned subcontracts or
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R.P. Appx. 387 76
 otherwise. Title to any materials or equipment for which such direct payment is made shall pass directly
from such subcontractor to Owner.

§ 14.2.2 When any of the above reasons exist, the Ov3 Wall Sections 312612007

AB-<>4 Wall Sections :l/2612007

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