Constract For Phase 2 Building

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CONSTRUCTION CONTRACT


FOR


PHASE 2 BUILDING
NATIONAL INSTRUMENTS TRACT
AUSTIN, TRAVIS COUNTY, TEXAS


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TABLE OF CONTENTS


Page


ARTICLE 1 THE CONTRACT DOCUMENTS ..................................... 2


ARTICLE 2 THE WORK ................................................... 2


ARTICLE 3 RELATIONSHIP OF THE PARTIES ................................ 5


ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION ............ 5


ARTICLE 5 CONTRACT SUM ............................................... 7


ARTICLE 6 CHANGES IN THE WORK ........................................ 8


ARTICLE 7 COSTS TO BE REIMBURSED ..................................... 8


ARTICLE 8 COSTS NOT TO BE REIMBURSED ................................. 12


ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS ............................. 13


ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS .......................... 14


ARTICLE 11 ACCOUNTS AND RECORDS ....................................... 14


ARTICLE 12 PROGRESS PAYMENTS .......................................... 15


ARTICLE 13 FINAL PAYMENT .............................................. 18


ARTICLE 14 MISCELLANEOUS PROVISIONS ................................... 19


ARTICLE 15 TERMINATION OR SUSPENSION .................................. 21


ARTICLE 16 ARBITRATION ................................................ 23


EXHIBIT "A" LEGAL DESCRIPTION
EXHIBIT "B" PLANS AND SPECIFICATIONS
EXHIBIT "C" SITE INFORMATION PROVIDED TO THE CONTRACTOR
EXHIBIT "D" ARCHITECTURAL TEAM
EXHIBIT "E" SUBCONTRACTOR ARBITRATION PROVISIONS


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AGREEMENT


made effective as of the 12th day of May in the year of Nineteen Hundred and Ninety- seven


BETWEEN the Owner: NATIONAL INSTRUMENTS CORPORATION
6504 Bridge Point Parkway
Austin, Texas 78730-5039


and the Contractor: WHITE CONSTRUCTION CO.
6907 Capital of Texas Highway North
Suite 250
Austin, Texas 78731


the Project is: Phase 2 Building located on
National Instruments Tract in
Austin, Travis County, Texas


the Architect is: RTG/PARTNERS, INC.
901 MoPac Expressway
Barton Oaks Plaza Two, Suite 100
Austin, Texas 78746


The Owner and the Contractor agree as set forth below.


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ARTICLE 1
THE CONTRACT DOCUMENTS


1.1 The Contract Documents are set forth in Subparagraph 1.1.1 of the General
Conditions. The Contract consists of the Contract Documents and
represents the entire and integrated agreement between the parties hereto
and supersedes prior negotiations, representations or agreements, either
written or oral. If anything in the Contract Documents is inconsistent,
this Agreement shall govern.


ARTICLE 2
THE WORK


2.1 The Contractor shall execute the entire work (the "Work") required by
the Contract Documents, except to the extent specifically indicated in
the Contract Documents to be the responsibility of others. The
Contractor shall perform or cause to be performed all the Work required
by the Contract Documents for furnishing all labor, equipment, materials
and supervision to construct the Project located on the 62.250 acre
tract of land described on Exhibit "A" attached hereto. The Contractor
shall act in the capacity of general contractor of the construction of
the Project.


2.2 Without limiting the foregoing, the Contractor shall be responsible for
the following:


2.2.1 The services which are necessary to complete the Work in
accordance with the plans, drawings and specifications described
in Exhibit "B" attached hereto.


2.2.2 The development of an estimate of the Cost of the Work (the
"Project Budget") which will incorporate the Guaranteed Maximum
Price, setting forth the total construction cost of the Work.
The Project Budget shall set forth the estimated Cost of the
Work (as defined in Article 7 below) and the Contractor's Fee
(as defined in Article 5 below).


2.2.3 Developing a project schedule which shall set forth a schedule
for the performance of the Work (the "Project Schedule"), as
more particularly set forth in the General Conditions.


2.2.4 Revising and updating, at least monthly, the Project Budget, an
estimated draw schedule and the Project Schedule; submitting
bills and supporting documentation, as required herein at least
monthly; and providing the Owner with an executive summary on
the status


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of the Work. For purposes of this Agreement, the defined terms
"Project Schedule" and "Project Budget" shall mean the latest
version of each of these developed and approved in accordance
with this Agreement. With respect to the Project Schedule, the
Owner's approval is required for every change which may affect
the Date of Substantial Completion, as defined in Paragraph 4.3
below.


2.2.5 Selecting subcontractors in accordance with this Agreement and
supervising and enforcing the performance of subcontracts.


2.2.6 Causing the Work to be performed in order to substantially
complete the Project within the Contract Time as set forth in
Paragraph 4.2 below.


2.2.7 Procuring the labor, materials and equipment necessary in order
to complete the Project within the Contract Time as set forth in
Paragraph 4.2 below.


2.2.8 Obtaining all building and construction permits, certificates of
occupancy and approvals which are necessary for the
construction, occupancy and use of the Project. In obtaining
such permits, the Contractor shall not submit a permit
application unless the application has been approved in advance
and signed by the Owner. The Contractor is not responsible for
obtaining zoning, subdivision or site plan approvals.


2.2.9 Constructing all on-site street and utility system improvements
which may be required by an applicable governmental authority or
utility for the construction and operation of the Project as
provided in the Contract Documents.


2.2.10 Providing notes of Project meetings (within three [3] working
days after such meeting), and providing superintendent daily
reports, to which the Owner shall have access at all times.


2.2.11 Keeping the Project area free from the accumulation of waste
materials, surplus excavation materials, or rubbish caused by
the Contractor's operations. At the completion of the Work, the
Contractor shall remove all waste material, surplus excavation
material, and rubbish from and around the Project as well as all
tools, construction equipment, machinery and surplus material.


2.2.12 Giving all notices and complying with all regulations, laws and
ordinances enacted at the date of execution of the Contract and


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during the term of this Agreement, which relate to the Work and
are required by law to be complied with. The preceding sentence
shall not apply to discovered environmental conditions not
caused by the Contractor or any subcontractor. Any environmental
conditions discovered by the Contractor or any subcontractor
shall be reported to the Owner only. Notwithstanding the
foregoing, the Owner will look solely to the Architect to ensure
that all plans and specifications contained in the Contract
Documents comply with all regulations, laws and ordinances.


2.2.13 Taking reasonable precautions for the safety of the Contractor's
employees on the Work, and complying with all applicable
provisions of federal, state and municipal safety laws which are
intended to prevent accidents or injury to persons on, about or
adjacent to the site. The Contractor shall erect and properly
maintain, at all times, as reasonably required by the conditions
and progress of the Work, safeguards for the protection of
workmen and the public. It is understood and agreed, however,
that the Contractor shall have no responsibility for the
elimination or abatement of safety hazards found to exist on the
site of the Project which are created or otherwise resulting
from the Work at the site carried on by other persons or firms
directly employed by the Owner as separate contractors or by the
Owner, except to the extent that the Contractor fails to notify
the Owner of the existence of such safety hazard following the
time such safety hazard is discovered, or should have been
discovered, by the Contractor. However, the Contractor shall
immediately notify the Owner in writing of any safety hazards
created by or resulting from the actions or omissions of any
third parties or the Owner of which the Contractor is aware or
should be aware.


2.2.14 Determining the requirements (including reporting requirements)
of and fully complying with all laws, regulations, ordinances,
codes and similar governmental rules, of local, state and
federal governments and agencies, which are enacted as of the
date of execution of this Agreement or subsequently enacted
during the term of this Agreement, and which are applicable to
the construction of the Project (the "Governmental Rules").


2.2.15 Accounting for all Cost of the Work as required herein;
inspecting the performance of all Work performed by
subcontractors and determining whether such Work conforms to the
Contract Documents and Project Schedule; and performing all
other reporting obligations of the Contractor set forth in this
Agreement.


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2.2.16 Taking appropriate steps to address all matters relating to the
site and its conditions as contained in the information and
studies referred to on Exhibit "C" attached hereto.


2.3 The Owner shall be responsible for the following matters:


2.3.1 The Owner shall be responsible for the cost of any legal and
accounting services required by the Owner in connection with
monitoring the performance of the Work by the Contractor, except
as provided in Paragraph 11.2 and except for attorneys' fees
incurred in connection with enforcing or defending this
Agreement.


2.3.2 The Owner shall have no contractual obligations to or control
over any subcontractor and shall direct such subcontractors only
through the Contractor.


2.3.3 The Owner agrees to cause any separate contractors and tenants,
as well as its own representatives and forces, to abide by and
fully adhere to all applicable provisions of federal, state and
municipal safety laws and regulations and to comply with all
reasonable requests and directions of the Contractor for the
elimination or abatement of any safety hazards at the site.


ARTICLE 3
RELATIONSHIP OF THE PARTIES


3.1 The Contractor accepts the relationship of trust and confidence
established by this Agreement and covenants with the Owner to cooperate
with the Owner, the Architect, and the Owner's other consultants and
utilize the Contractor's best skill, efforts and judgment in furthering
the interests of the Owner; to make best efforts to furnish at all times
an adequate supply of qualified and suitable subcontractors and
equipment; and to perform the Work in the best way and most expeditious
and economical manner consistent with the interests of the Owner. The
Owner agrees to exercise best efforts to enable the Contractor to
perform the Work in the best way and most expeditious manner by timely
furnishing and approving information required by the Contractor.


ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


4.1 The date of commencement shall be the later of (i) ten (10) days
following the Owner's delivery to the Contractor of written notice to
proceed with the Work and (ii) two (2) days following the issuance of
the


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building permit for the Project. If the date of commencement has not
occurred by June 1, 1997, this Agreement shall automatically terminate,
and neither party shall be liable to the other for any obligations or
costs related to the Project or this Agreement.


4.2 The Contractor shall use its best efforts to achieve Substantial
Completion of the entire Project not later than three hundred
thirty-five (335) days following the date of commencement as established
in Paragraph 4.1 above, subject to adjustments as provided in the
Contract Documents. As used herein, the term "Contract Time" shall refer
to the time period set forth above during which the Contractor is
required to achieve Substantial Completion of the Project. The
Contractor shall pay to the Owner as liquidated damages One Thousand and
No/100 Dollars ($1,000.00) for each day past the Contract Time that the
Contractor has not achieved Substantial Completion of the Project. The
foregoing liquidated damages are established as an estimate of the
damages to the Owner, and not as a penalty, for late completion of the
Project in view of the difficulty of accurately determining damages to
the Owner for late completion of the Project.


4.3 "Substantial Completion" of the Work shall be determined and is defined
as stated in Paragraph 9.8 of the General Conditions. The "Date of
Substantial Completion" is the date upon which such determination is
made by the Owner and the Architect. Notwithstanding the foregoing, in
no event shall the Date of Substantial Completion occur before an
unconditional certificate of occupancy for the Project has been issued
by the City of Austin. Substantial Completion shall not occur until the
Owner and the Architect have signed a Certificate of Substantial
Completion establishing that the above conditions have been met. The
Owner acknowledges that upon Substantial Completion, there may be Work
which is not complete and will be listed on a "punch list" to be
completed after the Date of Substantial Completion. The Owner shall sign
a Certificate of Substantial Completion once Substantial Completion of
the Work as defined above has occurred.


4.4 The Contractor shall be responsible for performing the Work in
accordance with the requirements of the Project Schedule. If, at any
time, the Contractor determines that the Work is not proceeding in
accordance with the Project Schedule, the Contractor shall immediately
advise the Owner in writing and shall communicate to the Owner the steps
being undertaken by the Contractor to catch up on the Work which is late
and to thereafter maintain the performance of the Work in accordance
with the Project Schedule.


4.5 Within ten (10) days after the Date of Substantial Completion, the
Owner, the Architect and the Contractor will conduct a thorough
inspection and examination of the Project, to determine which elements
of the Work, if any,


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have not been completed in accordance with the Contract Documents.
Within this period of time, the Owner shall submit to the Contractor a
written statement of the particular items of the Work which have not
been completed in accordance with the Contract Documents. The Contractor
agrees to perform the items of the Work set forth on the Owner's list of
uncompleted items within thirty (30) days after the submission of the
Owner's list to the Contractor. The list of uncompleted elements of the
Work shall include only those items which a visual inspection can reveal
and, if the Owner subsequently discovers that there are other items of
the Work which are not complete, then the Owner may give a subsequent
listing(s) of such other uncompleted items to the Contractor and the
Contractor shall complete such other items within thirty (30) days after
the receipt of the Owner's list. The giving by the Owner to the
Contractor of a list(s) of uncompleted items and the completion of such
work by the Contractor shall in no way expand or limit the Contractor's
warranty set forth herein.


ARTICLE 5
CONTRACT SUM


5.1 The Owner shall pay the Contractor in current funds for the Contractor's
performance of the Contract the following amounts (the "Contract Sum"),
consisting of the Cost of the Work as defined in Article 7 and the
Contractor's profit (the "Contractor's Fee"). The Contractor's Fee shall
be equal to three percent (3%) of the Cost of the Work. The Owner shall
not be responsible for any other claimed costs or expenses of the
Contractor unless expressly provided for elsewhere herein.


5.2 This Agreement is subject to a Guaranteed Maximum Price of twenty-three
million four hundred seventy-two thousand seven hundred nine and No/100
Dollars ($23,472,709) (which is the maximum Contract Sum). The
Guaranteed Maximum Price shall be equitably adjusted downward for any
items within the Contractor's scope of Work (including utilities) which
are provided by the Owner without charge or cost to the Contractor. Such
adjustment shall also include the portion of the Contractor's Fee
attributable to the portion of the Work provided by the Owner.


5.3 The Cost of the Work shall be kept as low as reasonably possible by the
Contractor.


5.3.1 The Contractor will use its best efforts to control the Cost of
the Work and the ultimate cost of the Project, while meeting the
requirements of the Owner and the standards of performance
required by the Contract Documents. The Contractor will use its
best efforts to control costs and will recommend to the Owner


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cost savings changes in the design and construction of the
Project in its development of the Contract Documents. The
Contractor agrees that in order to meet the Contract Time, it
may be necessary to perform portions of the Work using
multi-shifts. The Owner acknowledges that performance of the
Work in multi-shifts may incur additional costs to the
Contractor. However, in no event will such costs increase the
Guaranteed Maximum Price.


5.3.2 Upon the date of final payment (as set forth in Article 13
below), to the extent that the Contract Sum is less than the
Guaranteed Maximum Price, the Contractor shall, in addition to
any other amounts then owed by the Owner to the Contractor, be
paid the lesser of (a) thirty-five percent (35%) of the amount,
if any, by which the Guaranteed Maximum Price exceeds the
Contract Sum, and (b) Seventy-five Thousand and No/100 Dollars
($75,000.00). The balance of any such difference between the
Guaranteed Maximum Price and the Contract Sum shall be retained
by the Owner. If at any time after disbursement of such
incentive compensation the Contractor should incur any
additional Cost of the Work reimbursable hereunder, the Owner
shall promptly reimburse the Contractor sixty-five percent (65%)
of the total of such additional Cost of the Work up to a maximum
amount not to exceed sixty-five percent (65%) of the amount, if
any, by which the Guaranteed Maximum Price exceeds the Contract
Sum.


ARTICLE 6
CHANGES IN THE WORK


6.1 Adjustments to the Guaranteed Maximum Price, the Contract Time, and
other schedule requirements on account of changes in the Work may be
determined by any of the methods listed in the General Conditions or as
otherwise indicated in the Contract Documents.


6.2 In calculating adjustments to this Agreement, the terms "cost" and
"costs" as used in the provisions of the General Conditions shall mean
the Cost of the Work as defined in Article 7 of this Agreement.


ARTICLE 7
COSTS TO BE REIMBURSED


7.1 The term "Cost of the Work" shall mean only those costs necessarily
incurred by the Contractor in the proper performance of the Work. Such
costs shall be at rates not higher than the standard paid at the place
of the Project except with prior consent of the Owner. The Cost of the


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Work shall include only the items set forth in this Article 7. If a cost
is covered by more than one provision of this Article 7, such cost shall
be chargeable only once.


7.1.1 LABOR COSTS


7.1.1.1 Wages of construction workers directly employed by the
Contractor to perform the construction of the Work at
the site or, with the Owner's agreement, at off-site
workshops.


7.1.1.2 Wages or salaries of the Contractor's supervisory
personnel when stationed at the site with the Owner's
agreement.


7.1.1.3 Wages and salaries of the Contractor's supervisory
personnel engaged, at factories, workshops or on the
road, in expediting the production or transportation of
materials or equipment required for the Work, but only
for that portion of their time required for the Work.


7.1.1.4 Costs paid or incurred by the Contractor for taxes,
insurance, contributions, bonuses (up to an aggregate
maximum amount of Forty Thousand and No/100 Dollars
[$40,000.00]), assessments and benefits required by law
and for personnel not covered by such agreements,
customary benefits such as sick leave, medical and
health benefits, holidays, vacations and pensions,
provided such costs are based on wages and salaries
included in the Cost of the Work under Subparagraphs
7.1.1.1, 7.1.1.2 and 7.1.1.3 above.


7.1.2 SUBCONTRACT COSTS. Payments made by the Contractor to
subcontractors in accordance with the requirements of the
subcontracts.


7.1.3 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION


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7.1.3.1 Costs, including transportation of materials and
equipment incorporated or to be incorporated in the
completed construction.


7.1.3.2 Costs o ...