SR 28 Central Corridor Trail_CMAR Precon Services Agreement.pdf

Agreement Number XXX-XX-XXX

CONSTRUCTION MANAGER AT RISK (CMAR)

PRE-CONSTRUCTION SERVICES AGREEMENT

This Agreement, made and entered into on Enter Date, by and between the Tahoe Transportation District (hereinafter “TTD”) and Enter name and address (hereinafter “CONSTRUCTION MANAGER”).

Individually they are each a “Party” and collectively they are the “Parties.”

WITNESSETH:

WHEREAS, Nevada Revised Statutes (hereinafter “NRS”) Chapter 332 authorizes local governments to contract for the services of independent contractors; and

WHEREAS, provisions contained in NRS 338.1373 and 338.169 authorize TTD to enter into contracts with construction managers at risk to provide pre-construction services, including, without limitation: assistance in determining whether scheduling or construction problems exist that would delay construction of a project; estimating the cost of labor and material for a project; and assisting TTD in determining whether a project can be constructed within TTD’s budget; and

WHEREAS, TTD issued a Request for Proposal on September 23, 2026, to obtain pre-construction and potential construction services; and

WHEREAS, the CONSTRUCTION MANAGER submitted a proposal to TTD in response to the Request for Proposal on October 27, 2026, hereinafter called the “Proposal”; and

WHEREAS, based on TTD’s evaluation of the CONSTRUCTION MANAGER’s Proposal and the information obtained through the selection procedure set forth in the Request for Proposal, the CONSTRUCTION MANAGER was selected on Enter Date, to perform the services described herein and in Exhibit A (Scope of Services); and

WHEREAS, TTD has determined a need for pre-construction services and construction services for a project identified as the SR 28 Central Corridor Trail (Sand Harbor to Thunderbird Cove) project and such project is necessary for the corridor safety improvements, shared-use path construction, and environmental sustainability in the local jurisdiction of Washoe, Nevada (hereinafter “PROJECT”); and

WHEREAS, the CONSTRUCTION MANAGER is willing, able, and qualified to perform the services outlined below; and

WHEREAS, CONSTRUCTION MANAGER's services will be of great benefit to TTD and to the people of the State of Nevada.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants hereinafter contained, it is agreed by and between the Parties as follows:

ARTICLE I - SCOPE OF SERVICES

1. The CONSTRUCTION MANAGER agrees to perform each service enumerated in this Agreement and Exhibit A (Scope of Services) attached hereto and incorporated herein (collectively, Services), to include the development of a guaranteed maximum price for construction of the PROJECT, hereinafter called the “Construction GMP”.

2. The CONSTRUCTION MANAGER agrees to furnish all labor, materials, services, equipment, tools, and other expenses necessary to perform the services required under the terms of this Agreement, except as specifically provided otherwise herein.

3. Additional services not contemplated or described in Exhibit A (Scope of Services) shall be undertaken by Task Orders in the manner described below:

a. Such services shall be performed in accordance with the provisions of this Agreement, including Exhibit A (Scope of Services), attached hereto and incorporated herein, if such Task Orders are issued.

b. “Task Order Authorization”, in form and substance satisfactory to TTD, in its sole discretion, shall be completed and signed for each and every Task Order. Once signed by all parties, all of the provisions of such Task Order Authorization shall remain in full force and effect as if set forth herein.

c. The CONSTRUCTION MANAGER may be issued one or more Task Orders during the term of this Agreement, or the CONSTRUCTION MANAGER may not be issued any Task Orders. This Agreement does not guarantee or imply the promise of Task Order work. In the event Task Orders are issued as provided for in this Agreement, the terms and conditions of this Agreement and the Task Orders shall both apply in interpreting this Agreement. In the event of a conflict between the terms and conditions of this Agreement and a Task Order, the terms and conditions of this Agreement shall be given precedence.

d. For each Task Order, the CONSTRUCTION MANAGER is required to describe the scope of work; define agreed upon tasks, milestones, and deliverables; provide a schedule; and identify costs, hours, and rates. These items will be in writing as an attachment to a Task Order Authorization, when the CONSTRUCTION MANAGER executes and returns Task Order Authorization to TTD and it shall remain in full force and effect as if set forth herein.

e. Cost limits and fixed fee amounts for individual Task Orders will be negotiated at the time each Task Order is issued and will be included in the Task Order, as will any other applicable terms, conditions and requirements, including, without limitation, any insurance, safety program, bonding and access requirements. Changes ordered by TTD, in its sole discretion, which substantially modify the scope or character of services provided for in the Task Order shall be considered extra services and shall be specified in an amendment to the Task Order, which shall set forth the nature and scope thereof.

Terms of the amendment shall be decided through negotiations between the CONSTRUCTION MANAGER and TTD. Depending on the changes made, the amendment may or may not provide for a change in the amount of money to be paid the CONSTRUCTION MANAGER under the terms of this Agreement. Should additional payment be allowed by TTD, the method of payment shall be specified at the time the amendment is written. No costs shall be incurred by the CONSTRUCTION MANAGER, nor shall any additional services be initiated under a Task Order or under any amendment thereto by the CONSTRUCTION MANAGER until authorized to do so in writing by TTD.

f. Once executed, the services set forth in a Task Order shall, except as otherwise set forth in the Task Order, be considered Services under this Agreement and the terms of this Agreement shall apply thereto.

4. The CONSTRUCTION MANAGER agrees to comply with all requirements contained in the Request for Proposal dated September 23, 2026, which is incorporated into this Agreement by reference.

ARTICLE II - PERFORMANCE

1. The term of this Agreement shall be from the date first written above through and including Enter Date, unless a change extending the term is further agreed to by written amendment signed by all parties to this Agreement, and approved by appropriate official action of the governing body of TTD prior to such term expiration date. In the event a Task Order is issued as provided for in Article I, the CONSTRUCTION MANAGER shall complete the work set forth in such Task Order in accordance with the schedule provided therein.

2. In the event that the CONSTRUCTION MANAGER performs or causes to be performed any work after: (a) the Agreement’s expiration date as set forth within this Agreement, as it may be amended from time to time through written amendment signed by the parties hereto and approved by appropriate official action of TTD’s governing body, prior to such expiration date; or (b) termination of this Agreement prior to the expiration date set forth within this Agreement; then TTD shall make no payment for work performed following the expiration or termination dates, and the CONSTRUCTION MANAGER shall forfeit any and all right to payment for such work.

3. The CONSTRUCTION MANAGER, on behalf of itself, its spouses, heirs, executors, administrators, successors, subrogates, servants, insurers, attorneys, independent representatives, personal representatives, agents, and assigns, does hereby waive, release, and forever discharge the State of Nevada, Federal Highway Administration (FHWA), TTD, and each and every of their departments, divisions, agencies, officers, directors, agents, contractors, and employees, from any and all claims, demands, liens, liability, actions, causes of action, and suits for damages, at law and in equity, in any way connected with or arising from the CONSTRUCTION MANAGER’s provision of services and work performed following termination of this Agreement, and/or following the expiration date of this Agreement, as it may be amended from time to time through written amendment signed by the parties hereto and approved by appropriate official action of TTD’s governing body, prior to such expiration date.

4. Neither TTD, nor any of its departments, divisions, agencies, officers, directors, agents, contractors, and employees, shall have authority to extend this Agreement beyond the expiration date set forth within this Agreement, unless such extension is set forth within a written amendment signed by the parties hereto and approved by appropriate official action of the DEPARTMENT’s governing body prior to such expiration date. The CONSTRUCTION MANAGER shall not rely upon any oral or written representations expressed extrinsic to a written amendment signed by the parties hereto and approved by appropriate official action of TTD’s governing body prior to such expiration date, purporting to alter or amend this Agreement, including but not limited representations relating to the extension of the Agreement’s expiration date.

5. Paragraphs 1 through 5 of this Article II - Performance, shall survive the termination and expiration of this Agreement.

6. The CONSTRUCTION MANAGER shall procure and maintain for the duration of this Agreement any state, county, city or federal license, authorization, waiver, permit qualification or certification required by statute, ordinance, law, or regulation to be held by the CONSTRUCTION MANAGER to provide the goods or services required by this Agreement. The CONSTRUCTION MANAGER shall provide proof of its compliance upon request of TTD. The CONSTRUCTION MANAGER will be responsible to pay all taxes, assessments, fees, premiums, permits, and licenses required by law. Real property and personal property taxes are the responsibility of the CONSTRUCTION MANAGER in accordance with NRS 361.157 and NRS 361.159. The CONSTRUCTION MANAGER agrees to be responsible for payment of any such government obligations not paid by its subcontractors during performance of this Agreement. This Agreement may be terminated without notice if any of the above licenses or requirements are for any reason denied, revoked, debarred, excluded, terminated, suspended, lapsed, or not renewed.

7. The CONSTRUCTION MANAGER shall not proceed with the Services until the CONSTRUCTION MANAGER receives a fully executed copy of this Agreement, which shall constitute a written “Notice to Proceed” from TTD. If the CONSTRUCTION MANAGER does commence said work prior to receiving said Notice to Proceed, the CONSTRUCTION MANAGER shall forfeit any and all right to reimbursement for that portion of the work performed prior to said dates. Furthermore, the CONSTRUCTION MANAGER shall not rely on the terms of this Agreement in any way, including, but not limited to, any written or oral representations and warranties made by TTD or any of its agents, employees, or affiliates, or on any dates of performance, deadlines, indemnities, or any other term contained in this Agreement or otherwise prior to receipt of the Notice to Proceed. In the event the CONSTRUCTION MANAGER violates the provisions of this Section, the CONSTRUCTION MANAGER waives any and all claims and damages against TTD, its employees, agents, and/or affiliates, including, but not limited to, monetary damages and/or any other available remedy at law or in equity arising under the terms of this Agreement.

8. In the event TTD discovers a CONSTRUCTION MANAGER’s error or omission before its discovery by the CONSTRUCTION MANAGER, TTD shall not unreasonably delay in notifying CONSTRUCTION MANAGER of such error or omission. TTD's notice to CONSTRUCTION MANAGER shall specify the maximum time period CONSTRUCTION MANAGER will be allowed for correction. The CONSTRUCTION MANAGER shall make all necessary corrections resulting from its errors and omissions, and shall without delay make any corrections necessitated by the negligence, lack of adequate resources, or any other cause within the CONSTRUCTION MANAGER's control, and shall make such corrections without additional compensation. CONSTRUCTION MANAGER shall track all related costs for the correction. Acceptance of the services by TTD will not relieve the CONSTRUCTION MANAGER of the responsibility for any subsequent correction of any such errors and omissions, and the clarification of any ambiguities. The CONSTRUCTION MANAGER will be responsible for additional costs in subsequent related construction resulting from its errors or omissions. Should TTD use its own personnel, supplies, or equipment to remedy the deficiency, all such costs incurred by TTD shall be deducted from the sum due or which may become due to the CONSTRUCTION MANAGER. In the event all such costs and charges incurred by TTD exceed the sum which would have been payable under this Agreement, then the CONSTRUCTION MANAGER shall reimburse TTD the amount of said excess.

9. The CONSTRUCTION MANAGER shall make all necessary revisions or corrections resulting from errors and omissions on the part of the CONSTRUCTION MANAGER without additional compensation. Acceptance of the Services by TTD will not relieve the CONSTRUCTION MANAGER of the responsibility for subsequent correction of any such errors and the clarification of any ambiguities.

Should TTD use its own personnel, supplies or equipment to remedy the deficiency, such costs will be deducted from the sum due the CONSTRUCTION MANAGER at the time of the next invoice.

10. The CONSTRUCTION MANAGER shall assign one (1) individual throughout the life of this Agreement who shall have overall PROJECT responsibility unless illness or termination requires replacement.

11. All individuals performing the Services shall have the skill and experience and any licenses or certifications required to perform the services assigned to them. If TTD determines, in its sole discretion, that any individual employed by the CONSTRUCTION MANAGER or by any subcontractor is not performing the Services in a proper, safe, and skillful manner, then at the written request of TTD, the CONSTRUCTION MANAGER or such subcontractor shall remove such individual and such individual shall not be re-employed on the PROJECT without the prior written approval of TTD, in its sole discretion.

If the CONSTRUCTION MANAGER or the subcontractor fails to remove such individual or individuals or fails to furnish skilled and experienced personnel for the proper performance of the services, then TTD may, in its sole discretion, suspend the affected portion of the Services by delivery of written notice of such suspension to the CONSTRUCTION MANAGER. Such suspension shall in no way relieve the CONSTRUCTION MANAGER of any obligation contained in the Agreement or entitle the CONSTRUCTION MANAGER to additional compensation or an extension of time. Once compliance is achieved, TTD will notify the CONSTRUCTION MANAGER, and the CONSTRUCTION MANAGER shall be entitled to and shall promptly resume the Services.

12. A key person is defined as any individual identified by the CONSTRUCTION MANAGER in its proposal as being part of the team to be assigned to the PROJECT. The CONSTRUCTION MANAGER acknowledges and agrees, that the award of this Agreement was based, in part, on its ability to manage the PROJECT, and the qualifications, experience, and capacity of the CONSTRUCTION MANAGER’s aforementioned key persons and team. The CONSTRUCTION MANAGER represents, warrants, and covenants that such key persons are and will continue to be available to undertake and perform all services identified herein and fulfill the roles identified in its proposal. The CONSTRUCTION MANAGER shall notify TTD in writing within ten (10) calendar days when a key person leaves the PROJECT team.

a. If a key person leaves the PROJECT team, the CONSTRUCTION MANAGER shall promptly propose a replacement within thirty (30) calendar days to and for TTD’s review and written consent.

b. TTD shall have the unilateral right to terminate this Agreement:

1. If a key person leaves the PROJECT team for a reason other than death, retirement, incapacitation, or leaving CONSTRUCTION MANAGER’s employment (including the employment with CONSTRUCTION MANAGER’s affiliates, subsidiaries, and parent companies/organizations);

2. If a key person listed by the CONSTRUCTION MANAGER in its proposal to perform or supervise various aspects of design is changed or leaves the PROJECT team; or

3. If TTD does not accept the CONSTRUCTION MANAGER’s proposed key person replacement.

c. If this Agreement is terminated pursuant to the above, the CONSTRUCTION MANAGER shall be paid for actual costs incurred for all services rendered and accepted by TTD, and an amount of fee proportional to the work completed as of the date of termination. Additionally, the CONSTRUCTION MANAGER shall not be entitled to any settlement costs, if any. Such termination will not occur if the CONSTRUCTION MANAGER provides a replacement that is acceptable to TTD within thirty (30) calendar days of the date when the key person is changed or has left the PROJECT team.

13. The CONSTRUCTION MANAGER shall at all times maintain control over and have complete responsibility for all services performed pursuant to this Agreement by the CONSTRUCTION MANAGER and any of its subcontractors.

14. The CONSTRUCTION MANAGER shall be represented at progress review meetings as may be scheduled by TTD. The CONSTRUCTION MANAGER shall accompany TTD personnel and other representatives on field inspections and at conferences as may be required.

15. The CONSTRUCTION MANAGER warrants that the Services, including all deliverables and services produced or provided, under this Agreement shall be completed in a skillful, competent, and workmanlike manner consistent with standards generally recognized as being employed by those in the same discipline performing the same or similar services in the State of Nevada, and in accordance with the terms hereof and applicable laws, codes, rules, and regulations.

16. This Agreement, and any amendments, may be suspended temporarily, either wholly or in part, by TTD upon oral notice confirmed in writing within ten (10) calendar days, when TTD determines that conditions beyond the control of the CONSTRUCTION MANAGER are unfavorable to its satisfactory continuation of work. Should such conditions be encountered, the time for completion may be extended in an amount determined by TTD to be equivalent to the delay. Requests for suspension of time by the CONSTRUCTION MANAGER must have the written approval of TTD. No allowance shall be made for delay or suspension of the services solely due to the fault of the CONSTRUCTION MANAGER.

17. TTD reserves the right to add related additional work or otherwise alter the Services provided by the CONSTRUCTION MANAGER. The cost of and the time required to perform this additional work will be negotiated by the Parties and specified in an amendment to this Agreement signed by both Parties. An alteration ordered by TTD which substantially changes the services provided for by the expressed intent of this Agreement will be considered extra services, and shall be specified in a written amendment signed by all Parties, which will set forth the nature and scope thereof. The method of payment for extra services shall be specified at the time the amendment is written.

18. The CONSTRUCTION MANAGER shall not assign or subcontract, any of the services performed under this Agreement without the prior written approval of TTD, in its sole discretion. The CONSTRUCTION MANAGER will, subsequent to obtaining written approval from TTD, provide TTD with a copy of the contract or agreement for services. The CONSTRUCTION MANAGERPROVIDER shall require its subcontractors to comply with all provisions of 48 CFR Chapter 1, Part 31 . The CONSTRUCTION MANAGER will be responsible for any costs or deficiencies resulting from noncompliance if the subcontractors fail to comply with 48 CFR Chapter 1, Part 31. Any attempted assignment of rights or delegation of duties under this Agreement without the prior written consent of TTD, shall be void.

19. This Agreement is contingent upon the verification that the CONSTRUCTION MANAGER has a valid and active Nevada Business License, and is in good standing in all areas of the Secretary of State’s business requirements. If the CONSTRUCTION MANAGER is an out of state provider, the CONSTRUCTION MANAGER must be registered as a foreign business entity equivalent in Nevada, in active status and in good standing.

20. The CONSTRUCTION MANAGER agrees to complete and sign Exhibit B (Affidavit Required Under Section 112(C) and 2 CFR Parts 180 And 1200 – Suspension Or Debarment), Exhibit C (Certification Required by Section 1352 of Title 31, United States Code, Restrictions Of Lobbying Using Appropriated Federal Funds, and Instructions for Completion of SF-LLL, Disclosure of Lobbying Activities), attached hereto and incorporated herein.

21. The SERVICE PROVIDER acknowledges that the Nevada Department of Transportation has established a Disadvantaged Business Enterprise (DBE) participation requirement of zero percent (0%) of the total dollar value of the Agreement costs. A DBE must be a small business concern as defined by the U.S. Small Business Act, 15 USC § 632 or by 49 CFR Subtitle A, Part 26.17.

22. The SERVICE PROVIDER shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of Federally-assisted contracts. Failure by the SERVICE PROVIDER to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the contracting agency deems appropriate.

23. Failure by the Service Provider to fulfill the DBE Agreement requirements and to demonstrate good faith efforts, either in the SERVICE PROVIDER’s proposal or during the performance period, constitutes a breach of this Agreement. In event of such a breach, TTD may:

a. Withhold progress payments or a portion thereof;

b. Deduct, as damages, an amount equal to the unmet portion of the DBE commitment not achieved. This amount will be determined by multiplying the percentage of DBE participation proposed by the total cost set forth in the agreement and then multiplying the actual percentage of DBE participation used during the agreement by the total cost set forth in the agreement. In the event the actual percentage of DBE participation is less than the proposed percentage of DBE participation, the difference in these two figures shall be the amount of damages due to TTD;

c. Remove the SERVICE PROVIDER from the prequalified list for repeated violations, falsifications, or misrepresentations; and/or

d. Terminate the Agreement.

ARTICLE III – TERMINATION

1. TTD may terminate this Agreement without cause with 10 days’ written notice to the CONSTRUCTION MANAGER. In the event this Agreement is terminated in this manner, the CONSTRUCTION MANAGER shall be paid for the cost of the services, which have been completed and accepted by TTD up to the date of termination.

2. The continuation of this Agreement beyond the current biennium is subject to and contingent upon sufficient funds being appropriated, budgeted, and otherwise made available by TTD.

TTD may terminate this Agreement, and the CONSTRUCTION MANAGER waives any and all claims for damages, effective immediately upon receipt of written notice, or any date specified therein, if for any reason TTD’s funding from TTD, state and/or federal sources is not appropriated or is withdrawn, limited or impaired.

3. A default or breach may be declared with or without termination. This Agreement may be terminated by either Party upon written notice of default or breach to the other Party as follows:

a. If the CONSTRUCTION MANAGER fails to provide or satisfactorily perform any of the services called for by this Agreement within the time requirements specified in this Agreement or within any granted extension of those time requirements; or

b. If any state, county, city, or federal license, authorization, waiver, permit, qualification, or certification required by statute, ordinance, law, or regulation to be held by the CONSTRUCTION MANAGER to provide the goods or services required by this Agreement is for any reason denied, revoked, debarred, excluded, terminated, suspended, lapsed, or not renewed; or

c. If the CONSTRUCTION MANAGER becomes insolvent, subject to receivership, or becomes voluntarily or involuntarily subject to the jurisdiction of a bankruptcy court; or

d. If TTD materially breaches any material duty under this Agreement and any such breach impairs the CONSTRUCTION MANAGER’s ability to perform; or

e. If it is found by TTD that any quid pro quo or gratuities in the form of money, services, entertainment, gifts, or otherwise were offered or given by the CONSTRUCTION MANAGER, or any agent or representative of the CONSTRUCTION MANAGER, to any officer or employee of TTD with a view toward securing an agreement or securing favorable treatment with respect to awarding, extending, amending, or making any determination with respect to the performing of such agreement; or

f. If the CONSTRUCTION MANAGER knowingly bills TTD for unallowable costs or non-bona-fide goods or services, or for goods and services not provided.

4. Termination upon a declared default or breach may be exercised after service of written notice and the subsequent failure of the defaulting Party, within fifteen (15) calendar days of service of that notice, to provide evidence, satisfactory to the aggrieved Party, showing the declared default or breach has been corrected. Such correspondence shall be deemed to have been served on the date of postmark.

5. In the event of the CONSTRUCTION MANAGER’s breach of this Agreement, all costs and charges incurred by TTD, as a result of the breach, together with the cost of completing the work which exceeds the sum which would have been payable under this Agreement, shall be deducted from any money due or which may become due to said CONSTRUCTION MANAGER. If expenses exceed the sum which would have been payable under this Agreement, then the CONSTRUCTION MANAGER shall be liable and shall pay to TTD the amount of said excess In addition, in the event of the CONSTRUCTION MANAGER’s breach of this Agreement, TTD shall be entitled to exercise all other rights and remedies available at law or in equity, including, without limitation, the right to seek damages, set-off amounts, and claims payable to TTD against amounts payable under this Agreement to the CONSTRUCTION MANAGER, specific performance, and/or injunctive relief. The exercise of all such rights and remedies shall be cumulative.

6. This Agreement shall be terminated when the services contemplated and covered by this Agreement have been completely performed by the CONSTRUCTION MANAGER, and all items of services have been approved and accepted by TTD, and final payment is made.

7. If TTD fails to pay any undisputed compensation due and payable to the CONSTRUCTION MANAGER under this Agreement, the CONSTRUCTION MANAGER may declare a breach or default, and deliver written notice thereof to TTD. In such event, if TTD has not cured such nonpayment within thirty (30) calendar days after receipt of written notice thereof, the CONSTRUCTION MANAGER may pursue payment of such undisputed amounts. If such undisputed amounts remain unpaid within ninety (90) calendar days after receipt of written notice thereof, the CONSTRUCTION MANAGER may cease performance of its Services under this Agreement. In no event shall the CONSTRUCTION MANAGER have the unilateral right to terminate this Agreement.

ARTICLE IV – COST

1. The “specific rates of compensation” method of compensation shall be used to compensate the CONSTRUCTION MANAGER for completing the Services detailed in Exhibit A.

2. The rates shall include direct salary costs, indirect costs, other direct costs, and a fee.

3. Indirect costs (overhead) of the CONSTRUCTION MANAGER shall be apportioned among all Services completed by the CONSTRUCTION MANAGER during the term of this Agreement and shall be billed at the following indirect cost rate of:

a. Enter number percent (#%).

b. The CONSTRUCTION MANAGER shall provide evidence of the CONSTRUCTION MANAGER’s indirect cost rate using its established federal acquisition regulation (FAR) rate or audited indirect overhead rate. If the CONSTRUCTION MANAGER does not have an established FAR or audited indirect overhead rate, the CONSTRUCTION MANAGER shall establish its indirect cost rate as follows:

1. A labor surcharge rate of nineteen and seventeen hundredths’ percent (19.17%), and

2. Fringe benefit rate as provided by the SERVICE PROVIDER and verified to adhere to cost principles of FAR under 48 CFR part 31.

No other markups will be allowed to establish the SERVICE PROVIDER’s indirect cost rate or on any of the SERVICE PROVIDER’s subconsultants, subcontractors, suppliers, or vendors.

4. The total cost of the Services by the CONSTRUCTION MANAGER, including all Task Orders resulting from this Agreement, shall not exceed the sum of Enter number and #/100 Dollars ($#), which includes the fee of ten percent (10%).

5. The total amount payable by TTD for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless additional funds are agreed to by written Amendment signed by all parties.

6. The costs of subcontractors may not be marked up by the CONSTRUCTION MANAGER.

7. TTD will pay the CONSTRUCTION MANAGER in monthly installments based upon progress and final payment reports submitted by the CONSTRUCTION MANAGER and as approved by TTD, in its sole discretion.

8. The CONSTRUCTION MANAGER is required to submit a monthly progress report in TTD’s format showing the status of the services and the degree of completion thereof.

9. The CONSTRUCTION MANAGER agrees to complete and sign Exhibit D (Service Provider Cost Certification of Final Indirect Costs), attached hereto and incorporated herein.

10. The CONSTRUCTION MANAGER cost billing, reimbursement, and audit, will be accomplished in accordance with the Federal Cost Principles set forth in 2 CFR Part 200.

11. Travel costs will be reimbursed based on actual costs limited by Federal Travel Regulations (FTR) and the CONUS rate for Nevada. The FTR breaks down meals and incidental expenses at its website: www.gsa.gov/mie. The first and last travel days are calculated at seventy-five percent (75%). The lodging rate excludes taxes and fees. Taxes and fees are reimbursable. See this website for lodging in Nevada: http://www.gsa.gov/portal/category/100120. The CONSTRUCTION MANAGER shall provide lodging receipts.

12. When requested by TTD, the CONSTRUCTION MANAGER shall schedule its own airline and rental car reservations by the most economical means for reimbursement. Original receipts for airfare and rental cars must be submitted with the “Claim for Travel Expense.” TTD is not responsible for payment of any premium, deductible or assessments on insurance policies purchased by the CONSTRUCTION MANAGER for a rental vehicle.

ARTICLE V - SCHEDULE OF PAYMENTS

1. The CONSTRUCTION MANAGER shall submit a signed invoice monthly for all services rendered along with one (1) copy of substantiating documentation. The invoice must be submitted on the CONSTRUCTION MANAGER’s stationery using TTD’s format. TTD will utilize its normal accounting procedure in the payment of the invoices submitted.

2. Progress payments will be made for ninety-five percent (95%) of the amount of each invoice, until fifty percent (50%) of the Services required by this Agreement, as measured by the amounts invoiced as compared with the maximum cost of the Services set forth in Article IV, have been performed.

After fifty percent (50%) of the Services required by this Agreement have been performed, TTD may pay to the CONSTRUCTION MANAGER any of the remaining progress payments without withholding additional retainage if, in TTD’s sole discretion, satisfactory progress is being made on the Services in accordance with NRS 338.515. If TTD determines that such satisfactory progress is being made, TTD may pay any amount of retainage withheld from progress payments made during the CONSTRUCTION MANAGER’s completion of the first fifty percent (50%) of Services required by this Agreement on the condition that if a subcontractor performed a portion of the Services, TTD determined that such Services were in compliance with this Agreement, the subcontractor submits to the CONSTRUCTION MANAGER a release of a mechanics lien for the portion of Services so completed, and a release of any applicable mechanics lien from each of the subcontractor’s subcontractors and suppliers, and the amount of retainage TTD pays is in proportion to the Services which the subcontractor performed. If the CONSTRUCTION MANAGER is paid for any retainage for Services completed by its subcontractors, the CONSTRUCTION MANAGER must pay to the subcontractor any retainage it held pursuant to NRS

338.555. If TTD determines that satisfactory progress is not being made on the Services and does not withhold any amount pursuant to NRS 338.525, TTD may pay ninety-seven and one-half percent (97.5%) of the amount of each invoice after completion of the first fifty percent (50%) of the Services and will release to the CONSTRUCTION MANAGER fifty percent (50%) of the retainage withheld from invoices received for the first fifty percent (50%) of Services completed. If TTD determines that satisfactory progress is not being made on the Services and does withhold an amount pursuant to NRS 338.525, TTD may pay ninety-five percent (95%) of the amount of each invoice after completion of the first fifty percent (50%) of the Services and will continue to withhold the retainage withheld from invoices received for the first fifty percent (50%) of Services completed. The final audit shall be performed after the release of the retainage and may cause an adjustment of payments to TTD or to the CONSTRUCTION MANAGER. No interest shall be paid to the CONSTRUCTION MANAGER on this retained amount or any adjustment of payments.

3. TTD reserves the right to inspect and approve the services performed before payment is made to the CONSTRUCTION MANAGER. Payment will be withheld for deliverables and services TTD determines to be unsatisfactory in that they have not been provided in a workmanlike manner consistent with standards in the trade, profession, or industry. Payment shall remain unpaid until the services are completed in accordance with the standards and work requirements defined in this Agreement. In such an event, TTD will provide the CONSTRUCTION MANAGER with a written explanation as to why payment has been withheld.

4. The total cost of Services for this Agreement is the negotiated amount identified in Article IV, Paragraph 2. This amount was based upon the CONSTRUCTION MANAGER’s hourly labor rates, hour estimates, and out-of-pocket expenses estimates, including those of all of its subcontractors. If a subcontractor does not expend all funds allocated to it for the Services identified in its subcontract with the CONSTRUCTION MANAGER, a copy of which shall be provided to TTD prior to issuance of the Notice to Proceed, the CONSTRUCTION MANAGER shall not redistribute or expend such funds without the prior written approval of TTD, in its sole discretion. Failure to notify TTD prior to the use of such funds will constitute grounds for denial of reimbursement for such expenditures.

5. Payment of invoices shall be as follows:

a. TTD will use its best efforts to cause the CONSTRUCTION MANAGER to be paid within thirty (30) calendar days of receipt of CONSTRUCTION MANAGER’S correct and undisputed invoice.

b. TTD shall have twenty (20) calendar days after postmark of an invoice to dispute any or all of the charges on that invoice. The undisputed amount shall be paid to the CONSTRUCTION MANAGER within sixty (60) calendar days of the date of postmark. The disputed amount shall be negotiated and resolved in good faith by both Parties and paid within forty (40) calendar days after the date the corrected invoice is received by TTD or is approved by both Parties for payment.

6. CONSTRUCTION MANAGER is required to pay its subcontractors performing work related to this Agreement for satisfactory performance of that work no later than 30 days after the CONSTRUCTION MANAGER’S receipt of payment for that work from TTD. In addition, the CONSTRUCTION MANAGER may not hold retainage from its subcontractors.

7. To the extent that any amount is owing or payable from the CONSTRUCTION MANAGER to TTD under this Agreement, TTD shall be entitled to set-off and deduct such amounts against any amounts payable to the CONSTRUCTION MANAGER under this Agreement.

8. The prevailing party in an action to enforce this Agreement is entitled to reasonable attorney’s fees and costs.

ARTICLE VI - NEGOTIATION OF CONTRACT FOR CONSTRUCTION SERVICES

1. Subject to Paragraph 6 of this Article VI and provided that (i) this Agreement remains in effect and has not been terminated; (ii) the CONSTRUCTION MANAGER is not in default under this Agreement; (iii) no event has occurred that, with the giving of notice or expiration of a cure period, would constitute a default under this Agreement; (iv) the CONSTRUCTION MANAGER has satisfactorily performed the Services under this Agreement; and (v) the CONSTRUCTION MANAGER remains eligible to construct the PROJECT and meets the standards set forth in NRS 338.1691, which shall, collectively, establish that the CONSTRUCTION MANAGER has assumed overall responsibility for ensuring that the pre construction of the PROJECT is completed in a satisfactory manner, the CONSTRUCTION MANAGER shall have the right to negotiate with TTD for a contract for construction of the PROJECT, or, as directed by TTD, in its sole discretion, a portion thereof.

2. Subject to Paragraph 1 of this Article VI and as more particularly described in Exhibit A (Scope of Services), the CONSTRUCTION MANAGER shall provide a Construction GMP bid to TTD when TTD determines, in its sole discretion, that design for the PROJECT, or a portion thereof, is sufficiently finalized to enable a determination of the provable cost of the PROJECT or portion thereof.

The CONSTRUCTION GMP bid for the PROJECT, or a portion thereof, shall be in the form specified in, and comply with the requirements of, Exhibit A. The CONSTRUCTION MANAGER’s Construction GMP bid shall include all relevant information necessary to fully support the bid. The CONSTRUCTION MANAGER shall meet with TTD and other entities and stakeholders identified by TTD, which may include, but are not limited to, TTD’s designer, the independent cost estimator and others, to review the CONSTRUCTION MANAGER’s Construction GMP bid, and, as directed by TTD, negotiate a contract for construction of the PROJECT or a portion thereof (the “Construction Contract”). The Construction GMP bid and negotiation process for a Construction Contract shall be undertaken in a manner consistent with the provisions of Exhibit A (Scope of Services) and this Agreement. The negotiations between the Parties hereof concerning a Construction Contract shall be on an open book basis (including allowing TTD to review all underlying assumptions, documents, and data associated with pricing and financial terms). It is the express intent of the Parties hereto that TTD shall be provided such information as is necessary, in TTD’s sole discretion, to satisfy TTD as to the reasonableness of the amount and that the CONSTRUCTION MANAGER’s pricing and other financial terms for construction are fair and reasonable.

3. Delivery by the CONSTRUCTION MANAGER of (i) Payment and Performance Bonds in an amount equal to one hundred percent (100%) of the accepted bid amount; (ii) evidence of insurance in the forms, coverages and amounts set forth in the Construction Contract; (iii) evidence of authority to execute the Construction Contract as a valid, binding, and enforceable agreement with respect to the CONSTRUCTION MANAGER; and (iv) such other items and documents as are requested by TTD shall also be required and shall be conditions of execution and award of a Construction Contract.

4. TTD and the CONSTRUCTION MANAGER recognize that for federally-funded projects, project authorization must be obtained from FHWA prior to execution and delivery of a Construction Contract, that FHWA will require, as a critical prerequisite to issuance of project authorization, assurance that a price reasonableness process in accordance with 23 CFR § 636.302 was followed, and that the agreement includes appropriate terms and conditions regarding pricing, payment, change orders, and audit rights, as well as assurance regarding compliance with requirements applicable to federal-aid contracts. Completion of the price reasonableness process and authorization from FHWA are conditions precedent for TTD to enter into any Construction Contract with the CONSTRUCTION MANAGER. As a further condition precedent for TTD to enter into any Construction Contract with the CONSTRUCTION MANAGER, the CONSTRUCTION MANAGER shall have provided such additional information as TTD requests and shall have otherwise cooperated with TTD so as to allow TTD, in its sole discretion, to make a determination that the pricing and other financial terms of the Construction Contract are fair and reasonable.

5. If negotiations for a Construction Contract are not successful and the CONSTRUCTION GMP bid, scope of work or other terms and conditions of a Construction Contract are not acceptable to TTD, in its sole discretion, TTD reserves the right to terminate negotiations with the CONSTRUCTION MANAGER and place the PROJECT, or a portion thereof, for open bid in accordance with NRS 338.1696 or otherwise deliver the PROJECT, or a portion thereof, in such manner as TTD, in its sole discretion, determines. In this case, the CONSTRUCTION MANAGER will be compensated for the Services pursuant to the terms of this Agreement and TTD will have no further obligations or liabilities to the CONSTRUCTION MANAGER. If TTD utilizes the open bid process, the CONSTRUCTION MANAGER shall be entitled to bid on the PROJECT, or the portion thereof, through the open bid procedure.

6. This Agreement does not obligate TTD to enter into any subsequent agreement(s) for construction or construction services for the PROJECT. In addition, TTD reserves the right, in its sole discretion, to not construct the PROJECT, or any portion thereof. Any construction contract related to the PROJECT, or a portion thereof, will be awarded in accordance with Section 338.1696 of Nevada Revised Statutes.

7. The specific form of a Construction Contract for the PROJECT, or a portion thereof, shall be negotiated in connection with the Construction GMP bid process as described herein.

8. The CONSTRUCTION MANAGER shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three (3) years following completion of each Construction Contract work and shall be available at reasonable times and places for inspection by authorized representatives of TTD and the FHWA.

ARTICLE VII - MISCELLANEOUS PROVISIONS

1. The CONSTRUCTION MANAGER shall be responsible for and shall comply with all applicable federal, state, and local government obligations and TTD policies and procedures. The CONSTRUCTION MANAGER will be responsible for and shall pay all taxes, assessments, fees, premiums, permits, and licenses required by law. Real property and personal property taxes are CONSTRUCTION MANAGER’s responsibility in accordance with NRS Chapter 361. The CONSTRUCTION MANAGER warrants that it has a valid business license. The CONSTRUCTION MANAGER agrees to be responsible for and shall pay any such government obligations not paid by its subcontractors during performance of this Agreement. TTD may set-off any consideration due against any delinquent government obligation.

2. It is expressly understood that the CONSTRUCTION MANAGER is an independent contractor, and is subject to all statutes and laws, including NRS 332.300 relating to independent contractors. Nothing contained in this Agreement shall be deemed or construed to create a partnership or joint venture, to create relationships of an employer-employee or principal-agent, or to otherwise create any liability for TTD whatsoever with respect to the indebtedness, liabilities, and obligations of the CONSTRUCTION MANAGER or any other party. Neither the CONSTRUCTION MANAGER nor its employees, agents or representatives shall be considered employees, agents, or representatives of TTD.

3. The CONSTRUCTION MANAGER shall be solely responsible for its own employees, and TTD shall have no obligation with respect to:

a. Withholding of income taxes, FICA, or any other taxes or fees;

b. Industrial insurance coverage;

c. Participation in any group insurance plans available to employees of TTD;

d. Participation or contributions by either the CONSTRUCTION MANAGER or TTD to the Public Employees Retirement System;

e. Accumulation of vacation leave or sick leave; or

f. Unemployment compensation coverage provided by TTD.

4. The SERVICE PROVIDER shall indemnify and hold TTD harmless from, and defend TTD against, any and all losses, damages, claims, costs, penalties, liabilities, and expenses arising or incurred because of, incident to, or otherwise with respect to any such taxes, fees, insurance, contributions, leave, or coverage.

5. The CONSTRUCTION MANAGER (including any subcontractors included and identified in its Proposal) shall perform one hundred percent (100%) of the Services, unless otherwise approved in writing in advance by TTD, in its sole discretion. It is the express intent of the parties hereto that no design subconsultants provide the Services.

6. Unless expressly provided in this Agreement, the CONSTRUCTION MANAGER shall not engage or use the devices and/or services of TTD's personnel without the prior written consent of TTD, in its sole discretion.

7. The CONSTRUCTION MANAGER shall, before commencing services under the provisions of this Agreement, furnish to TTD proof of worker’s compensation insurance as required by the NRS. The CONSTRUCTION MANAGER agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit E (Insurance) and made a part of this Agreement. All insurance policies shall be subject to approval by TTD as to form and content. These requirements are subject to amendment or waiver if so approved in writing by TTD. CONSTRUCTION MANAGER agrees to provide TTD with copies of required policies.

8. In addition to such meetings as are required as part of the Services, TTD has the option of requesting, at any time, a meeting with the CONSTRUCTION MANAGER or its authorized representative to discuss and review PROJECT status and the CONSTRUCTION MANAGER shall furnish thereafter a copy of the minutes of such meetings to TTD.

9. The CONSTRUCTION MANAGER has total responsibility for the accuracy and correctness of data prepared under the terms of this Agreement, and shall check all such material accordingly for completeness, missing items, correct multipliers, and consistency. The deliverables shall be reviewed by TTD for conformity with TTD’s procedures and contract terms. The CONSTRUCTION MANAGER acknowledges that review by TTD does not include detailed review or checking of major components and related details or the accuracy of such deliverables, and TTD’s review shall not relieve the CONSTRUCTION MANAGER of its total responsibility for the accuracy, compliance, and correctness of data prepared under the terms of this Agreement or the performance of the Services as required under this Agreement.

10. The CONSTRUCTION MANAGER shall appear as a consultant and, if necessary, as an expert witness on behalf of TTD in any subsequent court action which involves any of the services required by this Agreement. Compensation for services rendered in this regard will be paid at a rate to be negotiated at the time such services are necessary and will be paid at the applicable hourly rates established under this Agreement.

11. Upon completion, termination or cancellation of the services embraced under this Agreement, all services inclusive of research, investigation, and analysis data, reports (including files stored on mobile media), computations, tabulations, original drawings, and design files (including CAD information stored on mobile media), correspondence input from external sources (including subcontractors), etc., shall be delivered to and become the property of TTD, without limitation. Reuse of said materials, information or data, during performance or following termination of this Agreement, on any other project or for any other purpose except as provided for herein, shall be at TTD’s discretion and TTD’s sole decision. The CONSTRUCTION MANAGER shall not utilize any materials, information, or data obtained as a result of performing the services called for in this Agreement in any commercial or academic publication or presentation without the express written permission of TTD. The CONSTRUCTION MANAGER shall not reference an opinion of an employee or agent of TTD obtained as a result of performing the services called for in this Agreement, in any publication or presentation, without the written permission of the employee or agent to whom the opinion is attributed, in addition to the written permission of TTD.

12. The CONSTRUCTION MANAGER agrees that any reports, materials, studies, photographs, negatives, drawings, or other documents prepared by the CONSTRUCTION MANAGER in the performance of its obligations under this…