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Exhibit 10.11


AGREEMENT


FOR


GUARANTEED MAXIMUM PRICE
CONSTRUCTION SERVICES


BETWEEN


WYNN LAS VEGAS, LLC
("Owner")


AND


MARNELL CORRAO ASSOCIATES, INC.
("Contractor")


FOR


LE RÊVE

TABLE OF CONTENTS

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

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

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

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

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

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AGREEMENT FOR GUARANTEED MAXIMUM PRICE CONSTRUCTION SERVICES
LE RÊVE

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

RECITALS

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

        B.    Owner desires to construct on the Site a first class luxury resort and casino, including high-rise hotel space and low rise space comprised of casino and gaming areas, restaurants, retail, convention and meeting areas, an "Aqua Theatre" showroom, and exterior features, and all on-Site and off-Site improvements and infrastructure related thereto, all in full accordance with the Contract Documents, including the Drawings and Specifications, and including the Work (as defined below) (the "Project"). Contractor's Work is only a portion of the Project. The Project also includes services and materials to be provided by Owner and other separate contractors and consultants.

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

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


AGREEMENT

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

ARTICLE I.
DEFINITIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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ARTICLE II.
INTENT, INTERPRETATION AND CORRELATION

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

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

        2.3      Contractor's Compliance with Contract Documents.

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ARTICLE III.
GUARANTEED MAXIMUM PRICE

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

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

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

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

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

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

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

ARTICLE IV.
CONTRACT TIME AND INTERIM MILESTONE DATES

        4.1      Definitions.

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

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

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

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

 
    
Contractor's Initials		  
Owner's Initials

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

        4.6      Guaranty of Completion and Performance, and Financial Information.

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ARTICLE V.
PAYMENTS TO CONTRACTOR

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

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

        5.2      Applications For Progress Payments.

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

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

        5.4      Owner's Right To Withhold.    Notwithstanding anything to the contrary herein, and in addition to Retainage, Owner may, upon written notice to Contractor, withhold from any payments otherwise due to the Contractor (including Final Payment), up to one hundred percent (100%) of the amount which, in Owner's opinion, is necessary to protect Owner against or compensate Owner for any and all damages, costs, lawsuits claims, overpayments, expenses and losses attributable to any of the items or circumstances listed below in this Section 5.4, including, to cure any breach, default or failure to perform, or to assure the payment of claims of third persons, and at Owner's option to apply such sums in such manner as Owner may in good faith deem necessary or proper to secure protection from or to satisfy such claims, Owner shall not be deemed in default by reason of withholding payment under this Agreement in good faith. Contractor shall not be entitled to receive payment on any Application for Progress Payment that is inaccurate or incomplete or that contains any material misrepresentation. The rights and remedies of Owner under this Section 5.4 shall be non-exclusive and shall be in addition to all other remedies available to Owner under this Agreement or at law, in equity or otherwise.

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        5.5      Joint Payee Checks.    Owner shall have the right at any time and from time to time upon notice to Contractor, to issue one or more checks for portions of a progress payment and Final Payment which are payable jointly to Contractor and its Subcontractors or Vendors of any tier or the parties owed. This right includes, but is not limited to, issuing jointly payable checks in circumstances where a dispute exists between Owner and Contractor with respect to the value of any partially or fully completed Work, including disputed Change Proposal Requests and Claims, and circumstances where Contractor has failed to provide lien waiver documents as required herein. Any such checks are forwarded to Contractor for further handling. Without limiting the generality of the foregoing, if Contractor fails, neglects, or refuses to pay for labor or services performed or materials or equipment supplied in connection with the Work as payments become due, except as are permitted under the Contract Documents, Owner shall have the right (but not the obligation) to make payments directly for any and all such labor, materials, or equipment and to deduct the amount of such payment from any payments otherwise due Contractor and from the Guaranteed Maximum Price. Owner shall have the right upon five (5) days prior written notice to stop the performance of the Work by Contractor until payment of all amounts due and owing has been made, provided, however, Owner shall not have any duty to stop the Work.

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

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

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

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

        5.10     Ownership of Materials.    All material and work covered by progress payments made shall upon such payment become the sole property of Owner, however the Contractor shall not be relieved from the risk of loss and responsibility for all material and Work upon which payments have been made or the restoration of any damaged Work (Contractor's risk of loss, however, shall be subject to the terms and provisions of the OCIP). Contractor represents and warrants to Owner that (i) title to all of the Work, materials and equipment covered by any Application for Progress Payment will pass to Owner upon the earlier of incorporation in the Work or receipt of payment by Contractor, and such title shall be free and clear of all liens, claims, security interests or encumbrances; (ii) the vesting of such title shall not impose any obligations on Owner or relieve Contractor of any of its obligations under the Contract Documents; (iii) Contractor shall remain responsible for damage to or loss of the Work, whether completed or under construction, until responsibility for the Work has been accepted by Owner in the manner set forth in this Agreement (Contractor's risk of loss, however, shall be subject to the terms and provisions of the OCIP); and (iv) no Work covered by an Application for Progress Payment and no material or equipment incorporated in the Work will have been acquired or incorporated into the Work, subject to an agreement under which an interest in the Work or an encumbrance on the Work is retained by the seller or otherwise imposed by Contractor or such other person.

        5.11     Deposits and Payments.    If any deposits are required for the purchase of any materials, such deposits will be specifically identified by category and credited against amounts as billed in that category. Contractor agrees to receive and hold all payments to it by Owner as trust funds to be applied only to the payment of Costs of the Work and then to the payment of the Contractor's Fee. Contractor will, promptly upon written request from Owner, account for any and all funds theretofore received by Contractor from Owner. Contractor agrees to arrange to purchase such materials or equipment in advance of the time for installation in the Project as are deemed advisable by Owner or Contractor, provided such purchases in excess of $200,000.00 are approved by Owner and Owner's Lenders. Upon payment to Contractor of approved deposit amounts, Contractor shall provide Owner with an assignment of Contractor's rights relating to such deposit made and agreement for purchase of such item.

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

        5.13    Materials Off-Site.    All materials which are the subject of an Application for Progress Payment (or Application for Final Payment, if applicable) shall be stored at all times at the Project, in a bonded warehouse or such other secured facility satisfactory to Owner and Owner's Lenders, or at the premises of the manufacturer or fabricator (in which event the materials shall be appropriately marked and identified with the applicable purchase contract and physically segregated in an area with access to a public street), until the materials are incorporated into the Project; provided that if the materials are stored with the manufacturer or fabricator, Owner must receive evidence satisfactory to Owner of the creditworthiness of the manufacturer or fabricator and/or Contractor shall procure and deliver or cause to be procured and delivered to Owner such dual obligee performance and labor and material payment bond or bonds, in form, substance and amount satisfactory to Owner and Owner's Lenders, as Owner and Owner's Lenders may require. Furthermore, Contractor shall:

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ARTICLE VI.
OWNER'S RESPONSIBILITIES

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

        6.2      Limitations.    Information on the Site and local conditions affecting the Site and any and all other information, reports, studies, surveys and materials provided by Owner pursuant to Section 6.1.2 above or otherwise, is furnished solely for the convenience of Contractor only, and without any representation, warranty or guarantee of accuracy, adequacy, correctness or completeness by Owner and Owner hereby disclaims all such warranties, guarantees and representations. Except to the extent set forth in Article 13 below, and except to the extent the information and materials supplied by Owner contain inaccurate information that was not known to Contractor to be inaccurate (and such inaccuracy would not have been reasonably discovered by Contractor in the exercise and/or performance of its obligations under the Contract Documents), Contractor assumes the risk of such conditions and shall fully complete the Work at no additional cost to Owner and within the Contract Time (subject to Contractor's right to use the Construction Contingency as provided in Section 3.1.6 hereof, to the extent there remain funds therein, and regardless of whether any funds remain in the Construction Contingency, Contractor shall still be liable for such costs).

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

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

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

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

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

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

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

ARTICLE VII.
CONTRACTOR'S RESPONSIBILITIES

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

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

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

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

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

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

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

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

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

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

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

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        7.10     Product and Design Substitutions

        7.11    Tests and Inspections

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

        7.13    Shop Drawings, Product Data and Samples

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

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

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

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

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

        7.18    Performance and Payment Bond Requirements

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        7.19    Liens.

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

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

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

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

ARTICLE VIII.
ARCHITECT

        8.1    Architect's Administration of the Contract

ARTICLE IX.
SUBCONTRACTORS AND VENDORS

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

        9.2    Consent To Use Proposed Subcontractors and Vendors.

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

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

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

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

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

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

ARTICLE X.
WARRANTY OBLIGATIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ARTICLE XI.
SCHEDULING, DELAYS AND ACCELERATION

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

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

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

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

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

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

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

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

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

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

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        11.9    Accelerations for Owner's Convenience

        11.10    Schedule Coordination

        11.11    Flow-Down Provisions

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

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

ARTICLE XII.
SUBSTANTIAL AND FINAL COMPLETION

        12.1    Substantial Completion Procedures and Requirements

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        12.2    Final Completion Procedures and Requirements

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ARTICLE XIII.
CONCEALED CONDITIONS AND UNCOVERING OF WORK

        13.1    Concealed Conditions

        13.2    Covering of Work

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ARTICLE XIV.
INDEMNIFICATION

        14.1    Indemnity

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

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

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

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

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

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

ARTICLE XV.
INSURANCE

        15.1    Owner Controlled Insurance Program

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        15.2    Evidence of Coverage

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

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

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

ARTICLE XVI.
SAFETY AND COMPLIANCE

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

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

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

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

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

ARTICLE XVII.
TERMINATION OR SUSPENSION OF THE CONTRACT

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

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

        17.3    Suspensions By Owner

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

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

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

        17.6    Contractor's Remedies

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ARTICLE XVIII.
CHANGE IN THE WORK

        18.1    Change.    A "Change" in the Work means an increase, decrease, variation, modification or change in Contractor's Work from that indicated in the Contract Documents, or modification to the Project Schedule. Suspensions and terminations for convenience shall be governed by Article 17 of this Agreement and shall not be considered a Change except to the extent provided therein. A Change can only be implemented by a Change Order or by Construction Change Directive. Accordingly, no course of conduct or dealings between the parties, nor express or implied acceptance of alterations or additions to the Work, and no claim that Owner has been unjustly enriched by any alteration or addition to the Work, whether or not there is in fact any such unjust enrichment, shall be the basis for any claim to an increase in the Guaranteed Maximum Price or extension of the Contract Time. Changes in the Work shall be performed under applicable provisions of the Contract Documents, and Contractor shall proceed promptly, unless otherwise provided in the Change Order or Construction Change Directive.

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

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

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

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        18.4    Construction Change Directive

        18.5    Determination of Increases in Guaranteed Maximum Price

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

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

        18.8    Effect of Change Orders

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

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

ARTICLE XIX.
RECORD KEEPING AND AUDIT RIGHTS

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

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

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

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

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

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

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

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

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

ARTICLE XX.
CLAIMS

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

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

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

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

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

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

ARTICLE XXI.
OWNER'S LENDERS

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

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

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

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

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

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

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

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

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

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

ARTICLE XXII.
DISPUTE RESOLUTION AND GOVERNING LAW

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

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

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

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

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

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

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

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

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

ARTICLE XXIV.
MISCELLANEOUS PROVISIONS

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

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

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

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

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

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

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

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

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

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

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

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

81


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

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

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

ARTICLE XXV.
NOTICES

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

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

82

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

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

83

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

OWNER:   CONTRACTOR:
             
WYNN LAS VEGAS, LLC,
a Nevada limited liability company,		   MARNELL CORRAO ASSOCIATES, INC.,
a Nevada corporation

By:
Wynn Resorts, LLC,
a Nevada limited liability company,
 
By:
/s/ Anthony A. Marnell, II
  its sole member   Its: Chairman
  By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member		      

 
 
By:
/s/ Stephen A. Wynn
 
 
 
    Name: Stephen A. Wynn      
    Title: Managing Member      

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

          GUARANTOR:

 
 
 
 
 
Austi, Inc.
a Nevada corporation
             
          By: /s/ Anthony A. Marnell, II
          Its: Chairman
             
             
             

84


EXHIBIT F—Attachment 3

EXCLUSIONS

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

1.
Architectural / Engineering Design Fees
2.
Interior Design Fees
3.
Major Building Permit / Planscheck Fees
4.
Transportation / Development Taxes
5.
Health Department Fees / Plan Review
6.
Testing and Inspection Fees
7.
Third Party Q.A.A. Fees
8.
Utility Connection and/or Service Fees (Sewer, Water, Power, Gas, Telephone, etc.)
9.
Nevada Power Company Line Extension / Equipment / Service Fees for New Substation
10.
Utility Costs
11.
Site Security Service Expenses
12.
Offsite Improvements (excepting those known Offsite Improvements specifically identified within the GMP)
13.
Owner Controlled Insurance Program (OCIP) costs including Builder's Risk and Worker's Compensation
14.
Loss of Use Insurance (to be provided by Owner, if desired)
15.
Existing Site Building Demolition
16.
Environmental Surveys, Abatement if required
17.
Landscaping and Irrigation (Exterior and Interior)
18.
Thematic Pottery / Sculptural Elements (Exterior and Interior)
19.
Golf Course Construction (By Others)
20.
Parking Garage Construction (By Others)
21.
Leased Retail Areas Build-out including Interior Finishes (Core and Shell construction of these areas is included in the GMP)
22.
All Gaming Equipment, Devices and Related Supplies, i.e.:

—
Gaming Tables
—
Gaming Seating
—
Pit Stands and related equipment
—
Change Stands and related equipment
—
Slot Machines
—
Slot Machine Stands
—
Slot Tracking Systems
—
Slot Signage
—
Keno Systems including wiring thereof
—
Race & Sports Book Betting System and Display Boards including wiring thereof
—
Bingo Systems including wiring thereof
—
Soft or Hard count Equipment/Systems
—
Cage Equipment
—
Money Carts, Coin Handling Devises
—
Safe Deposit Boxes, Cage Vaults, etc.
23.
Automated Room Entry Lock Systems including all equipment and wiring therefor
24.
Guestroom Equipment (Safes, Refrigerators, Ice Machines, Mini-Bars, Make-up Mirrors, Blow Dryers, Clock Radios, etc.)
25.
Guestroom Plumbing Fixtures Supply (Installation of same is included in the GMP)
26.
Ice Machines in Room Corridors

x

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

xi

73.
Paint Spray Booth Equipment
74.
Dust Collection Systems
75.
Photo / Dark Room Equipment
76.
All Office Equipment
77.
All Office Furnishings (i.e. Desks, Chairs, Conference Tables, File Cabinets, etc.)
78.
Vending Machines
79.
Trash and Ash Receptacles
80.
Trash Compactors
81.
Amusement Games/Machines
82.
FF&E Buyout Items @ Guestrooms/Guestroom Corridors

—
Room Furnishings (i.e. Beds, Box springs, Mattresses, Headboards, Dressers, Nightstands, Tables, Chairs, Sofas, etc.)
—
Vanity Cabinets Buyout (Installation of same is included in the GMP)
—
Draperies or other Window coverings
—
Decorative Light Fixtures including light bulbs (Chandeliers / Wallsconce -installation is included in the GMP)
—
Carpet (Installation is included in the GMP for the Highrise)
—
Wallcovering (Installation is included in the GMP)
—
Artwork, Artifacts, Murals
—
Interior Plantings
—
Room / Corridor / Lobby Signage
83.
FF&E Buyout Items @ Public Areas

—
Loose Furnishings (i.e. Tables, Chairs, Stools, etc.)
—
Draperies or other Window coverings
—
Decorative Light Fixtures including light bulbs (Chandeliers / Wallsconce installlation is included in the GMP)
—
Carpet
—
Wallcovering (Installation is included in the GMP)
—
Artwork, Artifacts
—
Interior Plantings
84.
FF&E Installation
85.
Golf Course Clubhouse Lockers / Locker Benches
86.
Marble/Granite/Stone Buyout and Delivery (Installation of Owner provided material is included excepting material to be set on Furniture)
87.
Sealing of Marble/Granite/Stone
88.
Custom Decorative Tile (Installation of Owner provided materials is included)
89.
Upholstered Fabric Panels
90.
Artisan provided Special Finishes applied to Walls/Ceilings (i.e. Hand-painted applications, Murals)
91.
Interior Signage
92.
Exterior Signage
93.
Models / Mock-ups
94.
Attic Stock and/or Spare Equipment/Materials
95.
Departmental FF&E, Inventory, and Supplies

xii

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

EXHIBIT G

GUARANTEED MAXIMUM PRICE PREMISES AND ASSUMPTIONS

General Understanding

1.
The Guaranteed Maximum Price (GMP) is based upon the square footage areas for each building function as defined in the March 8, 2002 Master Plan Drawings, and further described in columns A and B (with applicable comments) as set forth in Attachment 2 of Exhibit F attached to the Agreement for Guaranteed Maximum Price Services between Owner and Contractor ("Agreement") and to which this Exhibit G is attached. The area square footages as set forth in column B in Attachment 2 of Exhibit F are a fundamental premise, and significant variations in the individual area square footages and/or in the total square footage area will directly correlate to the Cost of the Work and may, after review and evaluation, require appropriate adjustments to the GMP.

2.
Owner and Contractor acknowledge that construction of the Project will commence without final Drawings and Specifications. More specifically while Drawings and Specifications are complete for certain portions of the Work, the design process will continue for other portions during construction. Owner accepts Contractor's role as an active participant in the design process, providing constructability and cost estimating services in a timely manner and method which supports the Project Schedule, all in accordance with and pursuant to the Agreement. Owner, Architect and their respective consultants agree to work with Contractor in the completion of the design documents and to meet with Contractor on a regular basis to review cost estimates, and recommended alternate means and methods required to meet the intended design within the budget parameters provided in the GMP.

3.
The overall design of the Project will provide for a facility of comparable building type, finishes and amenities of a quality level to compete with similar high-end casino resorts on the Las Vegas Strip.

4.
Owner acknowledges that preparation of the Drawings and Specifications in a timely manner pursuant to the Project Schedule, attached as Exhibit B to the Agreement, is required to provide Contractor with adequate time to provide the required pre-construction services pursuant to the Agreement.

5.
The Contractor's Scope of Work specifically excludes those items as identified in the GMP Exclusion List in Attachment 3 of Exhibit F attached to the Agreement.

6.
The GMP includes Allowance items as defined in Attachment 4 of Exhibit F attached to the Agreement.

Page 1 of 1

Project Area GMP Estimate Premises and Assumptions

1.
Highrise design documents have been completed and competitive bids received to validate the Highrise estimate values contained within the GMP.

2.
Lowrise Area 1 design documents which include the Central Plant facilities and equipment have been completed and competitive bids received to validate the Lowrise Area 1 estimate values contained within the GMP.

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

•
Mechanical Systems:
4.
Structural Systems: The Lowrise structural systems are figured to be comparable to similar Type I resort facilities designed under the 1997 Uniform Building Code in the Las Vegas area. The basic structural systems have been established in concept and include cast-in-place concrete structure for the levels below the casino floor level including the parking levels and structural steel framing above the casino floor level. The current market pricing received for Area 1 of the Lowrise has served to further validate the estimate values contained within the GMP.

5.
Wall Systems and Building Envelope: The Lowrise exterior wall systems and interior partitions have been budgeted at a level that is consistent with the required quality levels and finish systems that have been specified and provided as a part of the Area 1 Construction Documents. The current market pricing received for Area 1 of the Lowrise has served to further validate the estimates contained within the GMP.

6.
The detailed design drawings and specifications issued for Lowrise Area 1 set the standards for Back-of-House area construction types and quality level which are anticipated to continue in Areas 2, 3, 4 and 5 for the Base Building Construction and Interior Finishes.

7.
The Master Plan Drawings dated March 8, 2002 define the finish floor and roof elevations of the various Lowrise building areas of the Project. They also contain preliminary structural column and grid locations to be used as a basis for the development of the final design documents.

8.
The Le Reve Project Lowrise General Criteria issued through May 30, 2002 have been reviewed and evaluated with regards to establishing the base building construction requirements. This document outlines the maximum ceiling heights, HVAC diffuser types/finishes, fire sprinkler type and finish and general lighting criteria for the Lowrise building areas, which shall be followed in the completion of the design documents.

9.
The Lowrise Interior Design Criteria issued through May 30, 2002 have been reviewed and evaluated with regards to establishing the base building construction requirements. This document outlines the proposed interior design concepts for various public areas throughout the project. The base building values included within the GMP support the basic infrastructure and build out requirements as they relate to these various public areas.
10.
Interior Allocations within the Contractor's GMP as set forth on Exhibit F attached to the Agreement, were established from historical cost information and Contractor's experience constructing similar high-end casino resorts on the Las Vegas Strip. Any re-allocations of the Interior Allocation values shall be made in accordance with Section 3.1.8.6 of the Agreement.

11.
Contractor provided Equipment and Miscellaneous Cost values within the GMP, as set forth in Column F in Attachment 2 of Exhibit F, are based upon the following:

•
Elevator and Escalator cost values were established from Request for Proposal and competitive bids received from subcontractors. Based on the bids received, the aggregate value within the GMP for elevators and escalators has been validated.

•
Food Service and Bar Equipment estimate values for all areas defined in Columns A and B in Attachment 2 of Exhibit F, attached to the Agreement, were established with considerable and detailed consultant and subcontractor input. Additionally, the Food Service and Bar Equipment within Area 1 has been competitively bid and validated to be within the values established in the GMP.

•
Other Equipment items within the Lowrise Area 1 that have been competitively bid and validated to be within the values for same within the GMP include: Operable Partitions, Convention Audio-Visual and Rigging, Loading Dock Equipment and Central Plant Equipment/Distribution.

•
Other items in this category were established from unit cost estimates and/or reliable historical cost data and include: vaults; skylights (other than those skylights specifically called out as "Allowances" in Exhibit F attached to the Agreement), gallery security system, stage lifts, baggage conveyor, warehouse paging system, water features / reflecting pools and misting systems as identified in Exhibit F attached to the Agreement.
12.
With regards to the leased retail outlets, the Contractor's Scope of Work is limited to the core and shell only of these areas. Tenant area build-out, inclusive of interior finishes is the responsibility of others.

13.
The Golf Lanais are to be constructed in a three-story, Type I, cast-in-place concrete structure with interior build-out and interior finishes comparable to the Highrise Salon Suites. The on-grade level Lanais include private pools and patios. The above-grade Lanais include private balconies overlooking the golf course. Each Lanai will have Owner provided programmable controls (AMX) for all media, HVAC and lighting.

14.
The Villas are to be constructed in a Type I structural steel-framed structure with interior build-out and interior finish levels comparable to luxury suites at other high-end casino resorts in Las Vegas. These suites include private garden/terrace areas with pools and spas. The pools and spas will have stainless steel shells supported off of a structural slab on metal deck. The landscape areas will be contained within planter areas of varying depths, built up from the structural slab on metal deck. The structural slab on metal deck will be waterproofed and contain drains to handle nuisance water. Each Villa will have Owner-provided programmable controls (AMX) for all media, HVAC and lighting.

15.
AA Marnell II, Chtd., (AAM) as the Architect of Record has developed progress drawings dated May 13, 2002 for the Aqua Theater. The construction drawings for the Aqua Theater shall be in substantial conformance with the progress drawings dated May 13, 2002.

16.
The Exterior Features scope of Work and associated estimate values within the GMP were established using the following criteria:

•
The Lake Basin construction estimate is based upon the area and elevations shown in the March 8, 2002 Master Plan Drawings. The construction of the lake, including required water filtration equipment and piping, will be similar to the lake basin constructed at similar resort
17.
Exterior Facades estimates have been established with specialty subcontractor input utilizing preliminary Architectural drawings and façade renderings prepared by Butler Ashworth Architects and Jerde Design Group, respectively.

18.
The Site Improvements scope of Work and associated estimate values within the GMP have been established from the March 8, 2002 Master Plan Drawings as follows:

•
The Valet and Taxi tunnels are estimated in accordance with the areas defined by Columns A and B in Attachment 2 of Exhibit F attached to the Agreement.

•
The Main Entry Drives and Site Roadways are estimated in accordance with the areas defined by Columns A and B in Attachment 2 of Exhibit F attached to the Agreement.

•
The Service Yards and Staging areas are estimated in accordance with the areas defined by Columns A and B in Attachment 2 of Exhibit F attached to the Agreement.

•
The Mass Excavation and Site Preparation value in the GMP is based upon Request for Proposals and competitive Subcontractor bid results.

•
The Wet Utility estimates included in the GMP are based upon Request for Proposal and competitive Subcontractor bid results.

•
The Dry Utility estimates have been established with subcontractor input from current progress design documents.
19.
Offsite Improvements contained within the Contractor's scope of Work are limited to the widening of Las Vegas Boulevard and temporary traffic signal improvements at the Sands and Koval intersection to facilitate the construction entrance. The estimate for the widening of Las Vegas Boulevard is based upon subcontractor bids procured from Offsite Improvement drawings prepared by Carter Burgess issued through April 17, 2002.

20.
Other Scope of Work Items

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


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