<PAGE>
EXHIBIT 10.24
AIA Document B141/CMa - Electronic Format
Standard Form of Agreement Between
Owner and Architect
Where the Construction Manager is NOT a Constructor
1992 CONSTRUCTION MANAGER - ADVISER EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL
CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS COMPLETION
OR MODIFICATION. AUTHENTICATION OF
THIS ELECTRONICALLY DRAFTED AIA DOCUMENT
MAY BE MADE BY USING AIA DOCUMENT D401.
This document is intended to be used in
conjunction with the 1992 editions of
AIA Documents B801/CMa, A101/CMa and
A201/CMa.
Copyright 1975,1980, (C) 1992 by The
American Institute of Architects, 1735 New
York Avenue, N. W. Washington, D.C.
20006-5292. Reproduction of the material
herein or substantial quotation of its
provisions without the written permission
of the AIA violates the copyright laws of
the United States and will subject the
violator to legal prosecution.
AGREEMENT
made as of the 15th day of January in the
year of 2003
(In words, indicate day, month and
year.)
BETWEEN the Owner:
(Name and address)
Advanced Neuromodulation Systems
6501 Windcrest, Suite 100
Plano, TX 75024
ATTN: MR. MYRON ALBERT
and the Architect:
(Name and address)
Good Fulton & Farrell Architects
2808 Fairmount, Suite 300
Dallas, TX 75201
ATTN: JOSEPH J. PATTI
for the following Project:
(Include detailed description of Project,
location, address and scope.)
A two-story building of approximately
143,500 S.F. as defined in the Project
Definition Requirements - Final Report
dated 12.26.02, and incorporated herein
by reference, located on Lot 2 EDS Lakes
Addition Block B, a 15.413-acre (10.00
acre net) tract, Plano, Texas.
The Construction Manager is:
(Name and address)
Koll Development Company
8411 Preston Rd., Suite 700
Dallas, Texas 75225
ATTN: MIKE ROSAMOND
The Owner and Architect agree as set forth
below.
TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT
ARTICLE 1
ARCHITECT'S RESPONSIBILITIES
1.1
ARCHITECT'S SERVICES
(C) 1992 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W.
WASHINGTON, D.C. 200016-5292. AIA DOCUMENT
B141/CMa - OWNER-ARCHITECT AGREEMENT
- CONSTRUCTION MANAGER-ADVISER EDITION -
1992 EDITION - AIA(R) - WARNING:
Unlicensed photocopying violates U.S.
copyright laws and will subject the
violator to legal prosecution. This
document was electronically produced with
permission of the AIA and can be reproduced
in accordance with your license
without violation until the date of
expiration as noted below, expiration as
noted below, expiration as noted below,
expiration as noted below, expiration as
noted below. User Document: ans b141cma
v3.aia -- 6/16/2003. AIA License Number
1013444, which expires on 1/31/2004.
Electronic Format B141/CMa-1992
1
<PAGE>
1.1.1 The Architect's
services consist of those services performed by the
Architect, Architect's employees and
Architect's consultants as enumerated in
Articles 2 and 3 of this Agreement and any
other services included in Article
12.
1.1.2 The Architect's
services shall be provided in conjunction with the
services of a Construction Manager as
described in the edition of AIA Document
B801/CMa, Standard Form of Agreement
Between Owner and Construction Manager,
current as of the date of this Agreement.
Architect agrees that it will
cooperate and consult with the Construction
Manager, and will incorporate any
value engineering proposals where directed
in writing by the Construction
Manager and approved by the Owner, and will
incorporate such proposals in
accordance with the provisions of this
Agreement.
1.1.3 The Architect's
services shall be performed as expeditiously as is
consistent with professional skill and care
and the orderly progress of the
Work. The Architect shall submit for the
Owner's approval and the Construction
Manager's information a schedule for the
performance of the Architect's services
which may be adjusted as the Project
proceeds, and shall include allowances for
periods of time required for the Owner's
and Construction Manager's review and
for approval of submissions by authorities
having jurisdiction over the Project.
Time limits established by this schedule
approved by the Owner shall not, except
for reasonable cause, be exceeded by the
Architect or Owner.
1.1.4 The services covered
by this Agreement are subject to the time
limitations contained in Subparagraph
11.5.1.
ARTICLE 2
SCOPE OF ARCHITECT'S BASIC SERVICES
2.1
DEFINITION
2.1.1 The Architect's Basic
Services consist of those described in 2.2
through 2.6 and any other services
identified in Article 12 as part of Basic
Services, and include normal structural,
civil, landscape architecture,
mechanical and electrical engineering
services.
2.2 SCHEMATIC
DESIGN PHASE
2.2.1 The Architect shall
prepare the program and review the schedule and
construction budget furnished by the Owner
to ascertain the requirements of the
Project and shall arrive at a mutual
understanding of such requirements with the
Owner.
2.2.2 The Architect shall
review with the Owner and Construction Manager
proposed site use and improvements;
selection of materials, building systems and
equipment; and methods of Project
delivery.
2.2.3 The Architect shall
review with the Owner and Construction Manager
alternative approaches to design and
construction of the Project.
2.2.4 Based on the mutually
approved program, schedule and construction
budget requirements, the Architect shall
prepare, for approval by the Owner,
Schematic Design Documents consisting of
drawings and other documents
illustrating the scale and relationship of
Project components.
2.2.5 At intervals
appropriate to the progress of the Schematic Design Phase
and mutually agreeable to the Owner,
Construction Manager and Architect, the
Architect shall provide schematic design
studies for the Owner's review and the
Construction Manager's information.
2.2.6 In the further
development of the drawings and specifications during
this and subsequent phases of design, the
Architect shall be entitled to assume
the accuracy of the estimates of
Construction Cost which are to be provided by
the Construction Manager under the
Construction Manager's agreement with the
Owner.
2.2.7 Upon completion of the
Schematic Design Phase, the Architect shall
provide drawings, outline specifications
and other documents for the Owner's
approval and the Construction Manager's
information.
2.3 DESIGN
DEVELOPMENT PHASE
2.3.1 Based on the approved
Schematic Design Documents and any adjustments
authorized by the Owner in the program,
schedule or construction budget, the
Architect shall prepare Design Development
Documents for the Construction
Manager's review and the Owner's approval.
The Design Development Documents
shall be based upon data and estimates
prepared by the Construction Manager and
shall consist of drawings and other
documents that establish and describe the
size and character of the Project as to
architectural, structural, mechanical
and electrical systems, materials and such
other elements as may be appropriate.
2.3.2 At intervals mutually
agreeable to the Owner, Construction Manager and
Architect, the Architect shall provide
drawings and other documents which depict
the current status of design development
for the Owner's review and the
Construction Manager's information.
2.3.3 Upon completion of the
Design Development Phase, the Architect shall
provide drawings, outline specifications
and other documents for the Owner's
approval and the Construction Manager's
information.
2.4
CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved
Design Development Documents and any further
adjustments authorized by the Owner in the
scope or quality of the Project or in
the construction budget, the Architect,
utilizing data and estimates prepared by
the Construction Manager, shall prepare,
for approval by the Owner, Construction
Documents consisting of Drawings and
Specifications setting forth in detail the
AIA DOCUMENT B141/CMa - OWNER-ARCHITECT
AGREEMENT - CONSTRUCTION MANAGER-ADVISER
EDITION - 1992 EDITION - AIA(R) - (C) 1992
- THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON, D.C. 20006-5292. WARNING:
Unlicensed photocopying violates U.S.
copyright laws and will subject the
violator to legal prosecution. This
document was electronically produced with
permission of the AIA and can be reproduced
in accordance with your license
without violation until the date of
expiration as noted below. User Document:
b141 01_15_03.aia -- 2/10/2003. AIA License
Number 1009668, which expires on
3/28/2003.
Electronic Format B141/CMa-1992
2
<PAGE>
requirements for the construction of the
Project. The Architect will incorporate
value engineering items into the
Construction Documents as directed in writing
by the Construction Manager and approved by
Owner and will incorporate such
value engineering items in accordance with
the provisions of this Agreement.
2.4.2 At intervals mutually
agreeable to the Owner, Construction Manager and
Architect, the Architect shall provide
Drawings and Specifications for the
Owner's and the Construction Manager's
review.
2.4.3 Upon completion of the
Construction Documents Phase, the Architect
shall provide Construction Documents for
the Owner's approval and the
Construction Manager's information.
2.4.4 The Architect shall
assist the Owner and Construction Manager in the
preparation of the necessary bidding
information, bidding forms, the Conditions
of the Contracts, and the forms of
Agreement between the Owner and the
Contractors. The Architect shall assist the
Construction Manager in issuing
bidding documents to bidders and conducting
prebid conferences with prospective
bidders. The Architect, with the assistance
of the Construction Manager, shall
respond to questions from bidders, and
shall issue addenda.
2.4.5 The Architect shall
assist the Owner and Construction Manager in
connection with the Owner's responsibility
for filing documents required for the
approval of governmental authorities having
jurisdiction over the Project.
2.5 BIDDING OR
NEGOTIATION PHASE
2.5.1 The Architect,
following the Owner's approval of the Construction
Documents and of the Construction Manager's
latest estimate of Construction
Cost, shall assist the Construction Manager
in obtaining bids or negotiated
proposals and assist in preparing contracts
for construction.
2.6
CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT
2.6.1 The Architect's
responsibility to provide Basic Services for the
Construction Phase under this Agreement
commences with the award of the Contract
for construction and terminates 30 days
after final completion of the Work.
2.6.2 The Architect shall
provide administration of the Contract for
construction in cooperation with the
Construction Manager as set forth below and
in the edition of AIA Document A20l/CMa,
General Conditions of the Contract for
Construction, Construction Manager-Adviser
Edition, as amended, current as of
the date of this Agreement.
Provided, however, with respect to the
responsibilities and duties of the
Architect, the General Conditions shall be
modified to be consistent with this
Agreement.
2.6.3 Duties,
responsibilities and limitations of authority of the Architect
shall not be restricted, modified or
extended without written agreement of the
Owner and Architect with consent of the
Contractors and the Construction
Manager, which consent shall not be
unreasonably withheld.
2.6.4 The Architect shall be
a representative of and shall advise and consult
with the Owner (1) during construction
until final payment to the Contractors is
due, and (2) as an Additional Service at
the Owner's direction from time to time
during the correction period described in
the Contracts for Construction. The
Architect shall have authority to act on
behalf of the Owner only to the extent
provided in this Agreement unless otherwise
modified by written instrument.
2.6.5 The Architect shall
visit the site at regular intervals appropriate to
the stage of construction or as otherwise
agreed by the Owner and Architect in
writing to become generally familiar with
the progress and quality of the Work
completed and to determine in general if
the Work is being performed in a manner
indicating that the Work when completed
will be in accordance with the Contract
Documents. However, the Architect shall not
be required to make exhaustive or
continuous on-site inspections to check the
quality or quantity of the Work. On
the basis of on-site observations as an
architect, the Architect shall keep the
Owner informed of the progress and quality
of the Work, and defects and
deficiencies in the Work. The Architect will exercise
professional care and
customary diligence in discovering and
promptly reporting to the Construction
Manager and Owner any observable material
defects or deficiencies in the Project
or the Work of the Contractors, any
Subcontractors, or any sub-subcontractors,
their agents or employees, or any person
performing any of the Work in the
construction of the Project. (More
extensive site representation may be agreed
to as an Additional Service, as described
in Paragraph 3.2.)
2.6.6 The Architect shall
not have control over or charge of and shall not be
responsible for construction means,
methods, techniques, sequences or
procedures, or for safety precautions and
programs in connection with the Work,
since these are the Contractors'
responsibility under the Contracts for
Construction. The Architect shall not be
responsible for the Contractors'
schedules or failure to carry out the Work
in accordance with the Contract
Documents. The Architect shall not be
responsible for the performance by the
Construction Manager of the services
required by the Construction Manager's
agreement with the Owner. The Architect
shall not have control over or charge of
acts or omissions of the Contractors,
Subcontractors, or their agents or
employees, or of any other persons
performing services or portions of the Work,
but will promptly advise the Owner and
Construction Manager of any material
wrongful or non conforming acts or
omissions.
AIA DOCUMENT B141/CMa - OWNER-ARCHITECT
AGREEMENT - CONSTRUCTION MANAGER-ADVISER
EDITION - 1992 EDITION - AIA(R) - (C) 1992
- THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON, D.C. 20006-5292. WARNING:
Unlicensed photocopying violates U.S.
copyright laws and will subject the
violator to legal prosecution. This
document was electronically produced with
permission of the AIA and can be reproduced
in accordance with your license
without violation until the date of
expiration as noted below. User Document:
b141 01_15_03.aia -- 2/10/2003, AIA License
Number 1009668, which expires on
3/28/2003.
Electronic Format B141/CMa-1992
3
<PAGE>
which the Architect discovers during the
course of its duties under the
Contractor Documents.
2.6.7 The Architect shall at
all times have access to the Work wherever it is
in preparation or progress.
2.6.8 Communications by and
with the Architect's consultants shall be through
the Architect.
2.6.9 Based on the
Architect's observations and evaluations of each
Contractor's Application for Payment, the
Architect shall review and certify the
amounts due the respective Contractors.
2.6.9.1 The Architect's certification for
payment shall constitute a
representation to the Owner, based on the
Architect's observations at the site
as provided in Subparagraph 2.6.5, on the
recommendations of the Construction
Manager and on the data comprising the
Contractors' Applications for Payment,
that, to the best of the Architect's
knowledge, information and belief, the Work
has progressed to the point indicated and
the quality of the Work is in
accordance with the Contract Documents. The
foregoing representations are
subject to an evaluation of the Work for
conformance with the Contract Documents
upon Substantial Completion, to results of
subsequent tests and inspections, to
minor deviations from the Contract
Documents correctable prior to completion and
to specific qualifications expressed by the
Architect. The issuance of a
Certificate for Payment shall further
constitute a representation that the
Contractor is entitled to payment in the
amount certified.
2.6.9.2 The issuance of a Certificate for
Payment shall not be a representation
that the Architect has (1) made exhaustive
or continuous on-site inspections to
check the quality or quantity of the Work,
(2) reviewed construction means,
methods, techniques, sequences or
procedures, (3) reviewed copies of
requisitions received from Subcontractors
and material suppliers and other data
requested by the Owner to substantiate the
Contractor's right to payment or (4)
ascertained how or for what purpose the
Contractor has used money previously
paid on account of the Contract Sum.
2.6.10 The Architect shall have
authority, after notification to the
Construction Manager, to reject Work which
does not conform to the Contract
Documents. Whenever the Architect considers
it necessary or advisable for
implementation of the intent of the
Contract Documents, the Architect will have
authority, upon written authorization from
the Owner, to require additional
inspection or testing of the Work in
accordance with the provisions of the
Contract Documents, whether or not such
Work is fabricated, installed or
completed. However, neither this authority
of the Architect nor a decision made
in good faith either to exercise or not to
exercise such authority shall give
rise to a duty or responsibility of the
Architect to the Construction Manager,
Contractors, Subcontractors, material and
equipment suppliers, their agents or
employees or other persons performing
portions of the Work.
2.6.11 The Architect shall review
and approve or take other appropriate action
upon Contractors' submittals such as Shop
Drawings, Product Data and Samples,
but only for the limited purpose of
checking for conformance with information
given and the design concept expressed in
the Contract Documents. The
Architect's action shall be taken with such
reasonable promptness as to cause no
delay in the Contractors' Work or in
construction by the Owner's own forces,
while allowing sufficient time in the
Architect's professional judgment to
permit adequate review. Review of such
submittals is not conducted for the
purpose of determining the accuracy and
completeness of other details such as
dimensions and quantities or for
substantiating instructions for installation or
performance of equipment or systems
designed by the Contractors, all of which
remain the responsibility of the
Contractors to the extent required by the
Contract Documents. The Architect's review
shall not constitute approval of
safety precautions or, unless otherwise
specifically stated by the Architect, of
construction means, methods, techniques,
sequences or procedures. The
Architect's approval of a specific item
shall not indicate approval of an
assembly of which the item is a component.
When professional certification of
performance characteristics of materials,
systems or equipment is required by
the Contract Documents, the Architect shall
be entitled to rely upon such
certification to establish that the
materials, systems or equipment will meet
the performance criteria required by the
Contract Documents.
2.6.12 The Architect shall review
and sign or take other appropriate action on
Change Orders and Construction Change
Directives prepared by the Construction
Manager for the Owner's approval and
execution in accordance with the Contract
Documents.
2.6.13 The Architect may authorize
minor changes in Work not involving an
adjustment in a Contract Sum or an
extension of a Contract Time which are not
inconsistent with the intent of the
Contract Documents. Such changes shall be
effected by written order issued through
the Construction Manager.
2.6.14 The Architect, assisted by
the Construction Manager, shall conduct
inspections to determine the date or dates
of Substantial Completion and the
date of final completion. The Architect
shall forward to the Owner warranties
and similar submittals required by the
Contract Documents which have been
received from the Construction Manager. The
Architect shall issue a final
Project Certificate for Payment upon
compliance with the requirements of the
Contract Documents.
2.6.15 The Architect shall
interpret and decide matters concerning performance
of the Owner and Contractor under the
requirements of the Contract Documents on
written request of either the Owner or
Contractor. The Architect's response to
such requests shall be made with reasonable
promptness and within any time
limits agreed upon.
2.6.16 Interpretations and
decisions of the Architect shall be consistent with
the intent of and reasonably inferable from
the Contract Documents and shall be
in writing or in the form of drawings. When
making such interpretations and
initial decisions, the Architect shall
endeavor to secure faithful
AIA DOCUMENT B141/CMa - OWNER-ARCHITECT
AGREEMENT - CONSTRUCTION MANAGER-ADVISER
EDITION - 1992 EDITION - AIA(R) - (C) 1992
- THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON, D.C. 20006-5292. WARNING:
Unlicensed photocopying violates U.S.
copyright laws and will subject the
violator to legal prosecution. This
document was electronically produced with
permission of the AIA and can be reproduced
in accordance with your license
without violation until the date of
expiration as noted below. User Document:
b141 01_15_ 03.aia--2/10/2003. AIA License
Number 1009668, which expires on
3/28/2003.
Electronic Format B141/CMa-1992
4
<PAGE>
performance by both Owner and Contractors,
shall not show partiality to either,
and shall not be liable for results of
interpretations or decisions so rendered
in good faith.
2.6.17 The Architect's decisions on
matters relating to aesthetic effect shall
be final if consistent with the intent
expressed in the Contract Documents,
unless a written objection is received from
the Owner, which shall overrule the
decision of the Architect.
2.6.18 The Architect shall render
written decisions within a reasonable time
on all claims, disputes or other matters in
question between the Owner and
Contractors relating to the execution or
progress of the Work as provided in the
Contract Documents.
2.6.19 The Architect's decisions on
claims, disputes or other matters,
including those in question between the
Owner and Contractors, except for those
relating to aesthetic effect as provided in
Subparagraph 2.6.17, shall be
subject to arbitration as provided in this
Agreement and in the Contract
Documents.
2.6.20 The Architect will respond
to reasonable requests for information
submitted by the Contractor or others
involved in the Project.
2.6.21 Owner will be provided a
complete set of reproducible record drawings
and one set of Specifications ( together
with a computer aided design disk
containing such Drawings and
Specifications) showing all material changes in the
Work made during construction and revisions
to the Drawings and Specifications
made by the Architect. Contractor shall
provide record drawings to the Owner,
based on actual construction on site.
Architect shall cooperate with Contractor
by providing electronic backgrounds for use
by the Contractor in creating record
drawings, at no cost to the Owner or
Contractor.
ARTICLE 3
ADDITIONAL SERVICES
3.1
GENERAL
3.1.1 The services described
in this Article 3 are not included in Basic
Services unless so identified in Article
12, and they shall be paid for by the
Owner as provided in this Agreement, in
addition to the compensation for Basic
Services. The services described under
Paragraphs 3.2 and 3.4 shall only be
provided if authorized or confirmed in
writing and in advance by the Owner. If
services described under Contingent
Additional Services in Paragraph 3.3 are
required due to circumstances beyond the
Architect's control, the Architect
shall notify the Owner prior to commencing
such services. If the Owner deems
that such services described under
Paragraph 3.3 are not required, the Owner
shall give prompt written notice to the
Architect. If the Owner indicates in
writing that all or part of such Contingent
Additional Services are not
required, the Architect shall have no
obligation to provide those services.
Provided, however, the Owner will not be
required to pay and the Architect will
not be entitled to receive reimbursement or
compensation for any Additional
Services or Contingent Additional Services,
if such services were required due
to the fault of the Architect.
3.2 PROJECT
REPRESENTATION BEYOND BASIC SERVICES
3.2.1 If more extensive
representation at the site than is described in
Subparagraph 2.6.5 is required, the
Architect shall provide one or more Project
Representatives to assist in carrying out
such additional on-site
responsibilities.
3.2.2 Project
Representatives shall be selected, employed and directed by the
Architect, and the Architect shall be
compensated therefor as agreed by the
Owner and Architect. The duties,
responsibilities and limitations of authority
of Project Representatives shall be as
described in the edition of AIA Document
B352 current as of the date of this
Agreement, unless otherwise agreed.
3.2.3 Through the
observations by such Project Representatives, the Architect
shall endeavor to provide further
protection for the Owner against defects and
deficiencies in the Work, but the
furnishing of such project representation
shall not modify the rights,
responsibilities or obligations of the Architect as
described elsewhere in this Agreement.
3.3 CONTINGENT
ADDITIONAL SERVICES
3.3.1 Making revisions in
Drawings, Specifications, or other documents when
such revisions are:
.1
inconsistent with written approvals or instructions previously
given by the Owner, including revisions made necessary by
adjustments in the Owner's program or Project budget;
.2
requested by the Owner because the Construction Manager's
estimate of Construction Cost exceeds the Owner's budget,
except where such excess is due to changes initiated by the
Architect in scope, capacities of basic systems, or the kinds
and quality of materials, finishes or equipment;
.3
required by the enactment or revision of codes, laws or
regulations subsequent to the preparation of such documents;
or
.4 due
to changes required as a result of the Owner's failure to
render decisions in a timely manner provided that Owner was
notified at least 15 days prior thereto and given the right to
cure.
3.3.2 Providing services
required because of significant changes in the
Project including, but not limited to,
changes in size, quality, complexity, the
Owner's or Construction Manager's schedule,
or the method of bidding or
negotiating
AIA DOCUMENT B141/CMa OWNER-ARCHITECT
AGREEMENT - CONSTRUCTION MANAGER-ADVISER
EDITION-1992 EDITION - AIA(R)-(C)1992 -THE
AMERICAN INSTITUTE OF ARCHITECTS,
1735 NEW YORK AVENUE N.W., WASHINGTON, D.C.
20006-5292. WARNING: Unlicensed
photocopying violates U.S. copyright laws
and will subject the violator to legal
prosecution. This document was
electronically produced with permission of the
AIA and can be reproduced in accordance
with your license without violation
until the date of expiration as noted
below. User Document: b141 01_15_03.aia_ -
2/10/2003. AIA License Number 1009668,
which expires on 3/28/2003.
Electronic Format B141/CMa-1992
5
<PAGE>
and contracting for construction, except
for services required under
Subparagraph 5.2.3.
3.3.3 Preparing Drawings,
Specifications, and other documentation and
supporting data, evaluating Contractor's
reasonable alternative proposals, and
providing other services in connection with
Change Orders and Construction
Change Directives, which differ from the
initial scope of the Work contemplated
by the Drawings and Specifications issued
for construction, except for changes
necessitated by the Architect's negligent
acts, errors or omissions.
3.3.4 Providing services in
connection with evaluating substitutions proposed
by Contractors and making subsequent
revisions to Drawings, Specifications and
other documentation resulting
therefrom.
3.3.5 Providing consultation
concerning replacement of Work damaged by fire
or other cause during construction, and
furnishing services required in
connection with the replacement of such
Work.
3.3.6 Providing services
made necessary by the termination or default of the
Construction Manager or a Contractor, by
major defects or
