Pre-Construction & Construction Agreement

This Pre-Construction and Constuction Agreement represents the entire Contractual Agreement and is made and entered into,

PROPERTY OWNER

Preconstruction services to be provided by Midas Touch Towers include, but are not limited to, cost estimating, value engineering, scheduling, construction phasing, constructability review, weekly design review meetings with the Owner, input from key subcontractors as to building systems, and means & methods of construction. Preconstruction is expected to last six months. More specifically, Contractor will:

a. Building on budget submitted with the Request For Proposal (RFP), update conceptual estimate from preliminary plans based on historical costs adjusted to location and time as a control budget. This control budget will be reviewed by the project team, modified as required, and developed into a mutually agreeable budget itemized into cost systems for each component.

b. Prepare preliminary estimates for each phase of the work as information becomes available (once at completion of Design Development, once at 50% Construction Development). The control budget will be revised and updated accordingly.

c. Provide value engineering input by reviewing conceptual and working drawings during their preparation focusing on construction methods and details. Cost analyses of design options will be carried out and recommendations made for alternatives to be included in the bid packages.

f. Prepare a preliminary schedule following initial review of the project. This schedule will contain activities integrating the whole team to include. entitlements, permits, approvals, design development, bid packages and construction. Schedule will be provided for Owner’s approval in conjunction with the preliminary drawings and conceptual estimate.

g. Update and revise the approved master schedule as necessary to coordinate the ongoing activities of all members of the project team, with major updates/increase in detail in conjunction with the DD and 50%CD budget updates.

h. Monitor progress on both design and other preconstruction activities with regular reports indicating the responsibility for any corrective action.

i. Provide input as required to Owner’s entitlement process which is anticipated to conclude in July 2009.

a. Reasonableness of work sequence, interface relationships, and periods of performance.

Owner shall pay Contractor for Preconstruction Services as follows:

Pre-construction fees: Initial retainer of 3% of the projected costs is payable at the signing of this contract. The pre-construction labor rates are intended to fully compensate the Project Management Team for performing Pre-construction work including the cost for direct labor, indirect and overhead costs, profit, taxes, insurance, travel and travel related services and for all other necessary incidentals to perform pre-construction services will be based on the services actually performed.

The parties to this agreement will enter into a Contract for Construction Services which will incorporate and supersede this Agreement. This Contract will be based on the following terms:

The Project Management Team shall invoice the Client on a monthly basis for all work and all chargeable costs performed or incurred in the prior month. Each invoice shall include a detailed Progress Report for the services provided during the billing period and is to be itemized by sub-task per the pre-construction service summary of work. Additionally, each invoice shall outline the month’s activities, identification of high-risk issues (i.e., constructability, budget impacts, and schedule impacts), current project schedule, six-week look ahead and current budget. All expenses associated with performing the Work of this Contract shall be presumed to be covered in the sub-tasks of the Pre-construction Summary of Work attached to this Contract and therefore covered in the cost stated as per above.

The Project Management Team agrees that the payment provided in this Section shall fully and adequately compensate the Project Management Team and all subcontractors for all profits, costs, expenses, losses, liabilities, damage, taxes, and charges of any kind whatsoever (whether foreseen or unforeseen) attributable to the termination of this Agreement.

Prior to Owner’s issuance of a Notice to Proceed with Construction, it may elect to engage Contractor to provide Construction Management Services for hazardous material mitigation & removal, building demolition, and site clearing. Costs for these services are not included in the scope of this Preconstruction & Construction Services Agreement.

This Agreement shall not be construed as creating a partnership or joint venture between Owner and Contractor, or between them and any third party, nor cause either of them to be responsible in any manner for the other’s or any third party’s debts or obligations.

Neither this Agreement nor any interest herein may be assigned by either party without the prior written consent of the other. Should Property be sold, this Agreement shall survive and be assigned to buyer as a condition of the sale.

This Pre-Construction and Constuction Agreement represents the entire agreement between the Parties and supersedes prior negotiations, representation or agreements, either written or oral. Both the client and the Project Management Team agree that, while the Owner contemplates the construction of the Project as described in the proposal schedule this Pre-construction Contract does not bind the client to enter into a construction contract or to construct the Project.

The laws of the state in which the project is being developed in, shall govern this Contractual Agreement and the rights of the Parties herein.

No modification or amendment of this Contractual Agreement shall be effective unless in writing and signed by authorized representatives of the Parties.

Rights under this Contractual Agreement are cumulative; the failure to exercise on any occasion any right shall not operate to forfeit such right on another occasion. The use of one remedy shall not be taken to exclude or waive the right to use another.

Any dispute or misunderstanding that may arise under this Contractual Agreement concerning the Contractor's performance shall first be resolved through negotiations, if possible, between the Contractor's Project Manager and the Owner, or if necessary, shall be referred to the Director of the Project Management Team. If such parties do not agree upon a decision within a reasonable period of time, the parties may pursue other legal means to resolve such disputes, including but not limited to alternate dispute resolution processes.

For Cause: Either Party may terminate this Contract in the event the other fails to perform its obligations as described in this Contractual Agreement, and such failure has not been corrected to the reasonable satisfaction of the other in a timely manner after notice of breach has been provided to such other Party.

For Reasons Beyond Control of Parties: Either Party may terminate this Contract without recourse by the other where performance is rendered impossible or impracticable for reasons beyond such Party's reasonable control such as but not limited to acts of nature; war or warlike operations; civil commotion; riot; labor dispute including strike, walkout, or lockout; sabotage; or superior governmental regulation or control.

Any fraud or intentional deception submitted in this form will result in legal penalties.