Construction Agreement

Construction Management Agreement

Agreement made on the between , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Consultant, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Company.

Whereas, Consultant has offered to provide construction management services to the Company for the construction of the Company's , hereinafter referred to as the Project; and

Whereas, the Company desires to have Consultant provide construction management services to the Company;

Now, therefore, for and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Construction Management Services: Consultant will provide the following services in connection with the construction of the Project:

A. Design/Plan Review

Consultant will work closely with the Company's architect and engineers to assist in the development of a detailed set of architectural and engineering drawings and specifications. Upon receipt of the architectural and engineering drawings from the Company's architect, as-builts from previous projects, design criteria and the real property relating to construction, Consultant will review the drawings before submittal for building permits.

B. Bidding & Permits

Consultant will prepare bid forms and invitation to bid letters to accompany the architectural and engineering drawings to be distributed to selected general contractors the Company has approved to handle the general construction of the space as well as for all millwork, theme options, signage, graphics and other special equipment. Bids will be evaluated and a recommendation will be provided to the Company. A contract will be prepared for the general contractor with the Company's approval.

C. Construction Supervision

Consultant will monitor the day-to-day activities of the general contractor and coordinate scheduling and material and equipment deliveries. Discrepancies, field conditions and requests for additional information will be handled and resolved. Periodic visits to the project will be made from pre-construction through the construction phase of the project to monitor progress and quality.

D. Punchlist and Close-Out

A final visit to the project will be made upon substantial completion of construction. A punchlist will be prepared noting all items not completed or requiring rework to make the Project ready for occupancy and operation.

E. Pay Request Review

All requests for payment, including change orders, will be reviewed and evaluated. Lien waivers will be obtained, reviewed and compared to the pay requests. All required documentation from the general contractor and equipment, fixture and other suppliers, including the completion of punchlist items, will be obtained. Consultant will advise the Company that the contractor may be paid.

2. Fees and Reimbursement of Expenses

A. As compensation for Consultant's services under this Agreement, the Company shall pay, or cause to be paid, to Consultant a fee (the Construction Management Fee) of $ . Should the Company desire to utilize Consultant for additional aspects of the Project, the Construction Management Fee will be an additional $ per hour. The Construction Management Fee shall be paid as follows: Twelve (12) monthly payments of $ on the first of each month commencing through .

B. The fee paid under Paragraph 2(A) above does not cover expenses. In addition, the Company shall pay all out-of-pocket expenses of Consultant, however, travel and other travel related expenses shall be reimbursed at their cost. Any single out-of-pocket expense item in excess of $ shall be pre-approved by the Company in advance of expenditure. On a monthly basis, the Company will reimburse the expenses within ten (10) days after receipt of an invoice.

3. Term

The term of this Agreement shall commence on and shall terminate on . If Consultant has provided construction management or other services prior to the termination of this Agreement, the fees and expenses referred to above will be due and payable upon the completion of construction. Any of the Company's obligations that have accrued prior to the termination of this Agreement shall survive the termination of this Agreement.

4. Claims

Consultant and the Owner will indemnify, defend and save harmless the other from and against all Claims, as that term is defined, based upon the indemnifying party's negligence or intentional misconduct. As used herein, Claims shall mean all claims, suits, proceedings, actions, demands, causes of action, responsibility, liability, judgments, executions, damages, loss and expense (including attorney's fees). Company will indemnify, defend and save Consultant harmless from and against all Claims, as that term is defined, based upon any contractor or subcontractor’s negligence or intentional misconduct.

5. Claims

As used herein, Claims shall mean all claims, suits, proceedings, actions, demands, causes of action, responsibility, liability, judgments, executions, damages, loss and expense (including attorney's fees).

6. Severability

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

7. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

8. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

9. Notices

Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

10. Attorney’s Fees

In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

11. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

12. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

13. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

14. Assignment of Rights

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

15. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

WITNESS our signatures as of the day and date first above stated.