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Ordinance No. 13,850ORDINANCE NO. 13,850 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO THE DESIGN -BUILD AGREEMENT WITH GARFIELD PUBLIC/PRIVATE LLC, AND DPR CONSTRUCTION, INC., FOR THE CITY FACILITIES AND PARKING FACILITIES ASSOCIATED WITH THE HOTEL AND CONVENTION CENTER PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN ACCORDANCE THEREWITH NOT TO EXCEED ONE MILLION EIGHT HUNDRED SEVENTY-FIVE THOUSAND AND N0/100 DOLLARS ($1,875,000.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ************************************************************************************* BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to execute and the City Clerk to attest to the Design -Build Agreement with Garfield Public/Private LLC, and DPR Construction, Inc., for the City Facilities and Parking Facilities associated with the Hotel and Convention Center Project. A copy of said agreement is attached hereto as Exhibit "A' and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment in an amount not to exceed ONE MILLION EIGHT HUNDRED SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($1,875,000.00) for convention center design services pursuant to the Agreement authorized in Section 1 hereof. Section 3: That the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of FIFTY THOUSAND AND N0/100 DOLLARS ($50,000.00) or less; however, the original contract price may not be increased by more than twenty-five percent (25%) or decreased by more than twenty-five percent (25%) without the consent of the contractor to such decrease. Section 4: This ordinance shall take effect immediately from City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote Baytown this the 9"' day of August, 2018. ZETIC ST: &IABRYSCH.,a,'Clerk APPROVED AS TO FORM: w ACIO RAMIREZ, SR., it Att rney RAKarenTilesTity Council' Ordinan 8\August 91DBA.doc its passage by the City Council of the City of S, Mayor F- ° � ° LL o 0 S, Mayor Exhibit "A" DESIGN -BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER, DEVELOPMENT MANAGER AND DESIGN/BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee, with a Guaranteed Maximum Price Option) TABLE OF ARTICLES 1. DEFINITIONS 2. GENERAL PROVISIONS 3. DESIGN/BUILDER'S RESPONSIBILITIES 4. OWNER/DEVELOPMENT MANAGER'S RESPONSIBILITIES 5. SUBCONTRACTS 6. CONTRACT TIME 7. COMPENSATION 8. COST OF THE WORK 9. CHANGES IN THE WORK 10. PAYMENT FOR CONSTRUCTION PHASE SERVICES 11. INDEMNITY, INSURANCE AND WAIVER OF SUBROGATION 12. TERMINATION OF THE AGREEMENT AND DEVELOPMENT MANAGER'S RIGHT TO PERFORM DESIGN/BUILDER'S RESPONSIBILITIES 13. DISPUTE RESOLUTION 14. MISCELLANEOUS PROVISIONS 15. EXISTING CONTRACT DOCUMENTS AMENDMENT (Initial Proposed GMP) AMENDMENT (Final GMP) This Agreement has important legal and insurance consequences. Consultation with an attorney and insurance consultant is encouraged with respect to its completion or modification. DESIGN -BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER, DEVELOPMENT MANAGER AND DESIGN/BUILDER (Where the Basis of Payment is the Cost of the Work plus a Fee, with a Guaranteed Maximum Price Option) This Agreement is made this "DEVELOPMENT MANAGER" and the "DESIGN/BUILDER" and the AGREEMENT day of in the year 2018, by and among the Garfield Public/Private LLC 14785 Preston Road Suite 480 Dallas, TX 75254 DPR Construction, a General Partnership 3131 McKinney Avenue, Suite 210 Dallas, Texas 75204 "OWNER" City of Baytown, Texas, a home -rule municipal corporation and political subdivision of the State of Texas c/o City Manager 2401 Market Street Baytown, Texas 77520 for services in connection with the following: "PROJECT" The Project is the design and construction of a coordinated unified development consisting of three components: (1) public, city -owned meeting, ballroom and convention center facilities, common areas and related infrastructure including furniture, fixtures, and equipment associated with such facilities (collectively the "City Facilities" or the "City Facilities Component'), (2) an upscale, multistory 200 -room minimum, full-service hotel (the "Hotel" or "Hotel Component"), and (3) a City -owned surface parking lot with approximately 324 public parking spaces, together with the adjoining 1.92 acre marina parking site of approximately 230 spaces (which is subject to an existing parking agreement), collectively described as "Parking Facilities," the footprints of which are identified in Annex 1. The Project will be located upon the real property as described in Annex 2 (the "Site"). The services to design and construct the Project, and each of its components, are set forth in two separate design -build agreements: this Agreement for the City Facilities and Parking Facilities Components and another for the Hotel Component. Each agreement sets forth the details of the various rights and obligations among the Development Manager, the Design/Builder, the City and the Hotel Owner, as applicable, as to the design and construction of the City Facilities and Parking Facilities Components (in this Agreement) and the Hotel Component (in the other agreement). The owner of the Hotel is Cedar Trinity Corporation (the "Hotel Owner"). The Hotel Site is subject to a ground lease between the City of Baytown, as landlord, and Hotel Owner, as tenant (the "Ground Lease"). Notice to the parties shall be given at the above addresses. AMENDMENT NO. , (INITIAL PROPOSED GMP) DATED TO DESIGN-BUILD AGREEMENT BETWEEN OWNER, DEVELOPMENT MANAGER & DESIGN/BUILDER Pursuant to Section 3.2 of the Agreement dated , among the Development Manager, Garfield Public/Private LLC and the Owner, City of Baytown, Texas and the Design/Builder, DPR Construction, a General Partnership, for the City Facilities and Parking Facilities Components of the Project, the Development Manager, Owner and Design/Builder desire to establish a GMP for the Work. Therefore, the Development Manager, Owner and Design/Builder agree as follows. ARTICLE 1. INITIAL PROPOSED GUARANTEED MAXIMUM PRICE The Design/Builder's initial proposed GMP for the Work, including the Cost of the Work as defined in Article 8 and the Design/Builder's Fee as set forth in Article 7, is dollars ($ ), The Design/Builder guarantees that the Cost of the Work plus the Design/Builder's fee will not exceed this initial GMP as defined in the Agreement, subject to additions and deductions by Change Orders, as provided in the Agreement. The initial GMP is based on the following documents, which shall become attachments to this Amendment: ARTICLE 2. DATES OF COMPLETION As of the date of this Amendment, the following dates apply: Substantial Completion of the City Facilities and Parking Facilities Components shall be achieved within Days after issuance of the approved "Notice to Proceed," subject to approved Change Orders as defined in the Agreement or as specified in Section 6.2 of the Agreement. Final Completion of the City Facilities and Parking Facilities Components shall be achieved within 30 Days of the date of Substantial Completion of the Project subject to approved Change Orders as defined in the Agreement, or as specified in Section 6.2.1 of the Agreement. This Amendment is subject to acceptance by Development Manager and Owner, in accordance with and subject to Section 3.2.7(a) of the Agreement. The final GMP and final dates of Substantial and Final Completion will be prepared subject to Section 3.2.7(a) of the Agreement and may only be adjusted in accordance with Articles 6 and 9 of the Agreement, as applicable. This Amendment is entered into as of DEVELOPMENT MANAGER: Garfield Public/Private LLC By: ATTEST: PRINT NAME: ATTEST: ATTEST: Name: Title: PRINT TITLE: DESIGN/BUILDER: DPR Construction, a General Partnership BY: PRINT NAME: PRINT TITLE: OWNER: City of Baytown, Texas BY: Name: Title: AMENDMENT NO. , (FINAL GMP) DATED DESIGN -BUILD AGREEMENT BETWEEN OWNER, DEVELOPMENT MANAGER & DESIGN/BUILDER Pursuant to Section 3.2 of the Agreement dated , among the Development Manager, Garfield Public/Private LLC and the Owner, City of Baytown, Texas and the Design/Builder, DPR Construction, a General Partnership, for the City Facilities Component and Parking Facilities Component of the Project, the Development Manager, Owner and Design/Builder desire to establish a GMP for the Work. Therefore, the Development Manager, Owner and Design/Builder agree as follows. ARTICLE 1. FINAL GUARANTEED MAXIMUM PRICE The Design/Builder's Final GMP for the Work, including the Cost of the Work as defined in Article 8 and the Design/Builder's Fee as set forth in Article 7, is dollars ($ ), The Design/Builder guarantees that the Cost of the Work plus the Design/Builder's fee will not exceed the Final GMP as defined in the Agreement, subject to additions and deductions by Change Orders, as provided in the Agreement. The Final GMP is based on the following documents, which shall become attachments to this Amendment: ARTICLE 2. DATES OF COMPLETION From and after the date of this Amendment, the following dates apply: Substantial Completion of the City Facilities and Parking Facilities Components shall be achieved within Days after issuance of the approved "Notice to Proceed," subject to approved Change Orders as defined in the Agreement or as specified in Section 6.2 of the Agreement. Final Completion of the City Facilities and Parking Facilities Components shall be achieved within 30 Days of the date of Substantial Completion of the Project subject to approved Change Orders as defined in the Agreement, or as specified in Section 6.2.2 of the Agreement. This Amendment is subject to acceptance by Development Manager and Owner, after which the Final GMP and dates of Substantial and Final Completion may only be adjusted, if at all, in accordance with Articles 6 and 9 of the Agreement, as applicable. This Amendment is entered into as of DEVELOPMENT MANAGER: Garfield Public/Private LLC By: ATTEST: PRINT NAME: PRINT TITLE: DESIGN/BUILDER: ATTEST: DPR Construction, a General Partnership BY: PRINT NAME: PRINT TITLE: OWNER: City of Baytown, Texas ATTEST: BY: PRINT NAME: PRINT TITLE: ARTICLE 1 DEFINITIONS 1.1 "Applicable Laws" means all laws, statutes, ordinances, building codes, regulations, rules, orders and resolutions of all national, administrative, state, local, municipal, and other governing bodies relating to the Project or to the performance of the Services or the Work. 1.2 "Architect" means BOKA Powell LLC and any successor architect firm that Design/Builder may retain in connection with the Project; provided, however, any successor architect is subject to prior approval of Development Manager and Owner and further provided any consultants or subconsultants of the Architect are subject to the prior approval of Development Manager and Owner. 1.3 Intentionally Omitted 1.4 Intentionally Omitted 1.5 Intentionally Omitted 1.6 Intentionally Omitted 1.7 "Change Order" means a written order to Design/Builder executed by the Owner and Development Manager in accordance with the Agreement authorizing and directing an addition to, deletion from, or adjustment or revision to the requirements of the Contract Documents, or an adjustment to the compensation payable to Design/Builder, or to the time for performance of the Agreement or completion of the Project, or any combination thereof. 1.8 "City Facilities Component" means the City Facilities portion of the Project as defined in the "Project" paragraph on page 1 of this Agreement. 1.9 Intentionally Omitted 1.10 "Construction Fund" means the fund established by Owner for the sole use of funding the Design/Builder's GMP for the City Facilities Component and the Parking Facilities Component and an allowance for changes in the Work. 1.11 "Construction Phase" means that phase of the Work commencing as described in Section 3.3.1 to construct the City Facilities Component and the Parking Facilities Component of the Project. 1.12 "Construction Phase Services" means Services rendered during the Construction Phase of the City Facilities and Parking Facilities Components. 1.13 "Contract Documents" means this Agreement, any amendments to this Agreement, drawings, specifications and other documents referenced in Section 2.4. 1.13.1 "Contract Time" means the period of time afforded by this Agreement for the Substantial Completion of the Work and the period of time afforded by this Agreement for the Final Completion of Work (as each of these terms are defined herein), as such times may be adjusted in accordance with the terms and provisions of this Agreement. 1.14 "Contract Value" means the total Cost of the Work, General Conditions and Design/Builder's Fee but does not include amounts for the Architect's Services. 1.15 "Cost of the Work" means all costs necessarily incurred in the proper performance of the Work, including without limitation, all costs set forth in Section 8.1 and 8.2, costs for all labor, materials, supplies, equipment, taxes, fees, expenses and other items or amounts incurred or owing under the contracts entered into pursuant to this Design/Build Agreement. 1.16 "Day" means calendar day. 1.17 "Design/Builder" means DPR Construction, a General Partnership, and its permitted successors and assigns, the entity engaged as the design/build contractor for the Project. 1.18 "Design/Builder's Representative" means the individual named by Design/Builder to act on Design/Builder's behalf in the administration of this Agreement. 1.19 "Design Phase" means the phase of the Project commencing upon the Effective Date of this Agreement and ending upon completion by the Architect of the Construction Documents and execution of the Final GMP Amendment for the City Facilities Component and the Parking Facilities Component of the Project. 1.20 "Design Phase Services" means all Services required during the Design Phase of the City Facilities Component and the Parking Facilities Component. 1.21 "Design/Builder's Fee" as described in Article 7 and calculated in accordance therewith, includes both the Design/Builder's fee associated with the Design Phase and the Design/Builder's fee associated with the Construction Phase. 1.22 "Development Manager" means Garfield Public/Private LLC. 1.23 "Development Manager's Representative" means the individual named by Development Manager to act on Development Manager's behalf in the administration of this Agreement, initially, the person named in Section 4.4 hereof. 1.24 "Effective Date" means the date the Baytown City Council approves this Agreement or the date of execution of the Hotel DBA, whichever is later. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 3 1.25 "Extreme Weather" means those weather delays that exceed the number of Days contained in the Construction Schedule designated in accordance with subsection 6.3.1.1 to compensate for delays due to weather events during the construction of the Project. An Extreme Weather delay shall be measured as a delay only if it directly affects the critical path in accordance with the monthly updated Construction Schedule and exceeds those Days already contained in the Construction Schedule. 1.26 "FF&E" means furniture, fixture and equipment purchased to be used in the City Facilities and Parking Facilities Components. 1.27 "Final Completion" means the completion of all Work required by, and in strict compliance with, the Contract Documents for the Project, including: (i) all work and punch list items have been inspected and satisfactorily completed as determined by the Owner; (ii) consent of sureties have been obtained; (iii) start-up, testing, training, regulatory approvals from all applicable authorities have been obtained; (iv) all close-out documents, including warranty and operation manuals, have been received by Owner; (v) all requirements for Final Payment have been met; (vi) all preparations necessary to successfully operate and maintain the Project have occurred; (vii) a Certificate of Occupancy for 100% of the City Facilities Component and Parking Facilities Component has been received by the Owner; and (viii) the Owner's governmental body has accepted the City Facilities Component and Parking Facilities Component. 1.28 "Final Completion Date" is that certain date set forth in the Final GMP Amendment and in Section 6.2 as the date the Design/Builder agrees to achieve Final Completion of the Project as some may be extended in accordance with this Agreement and the Hotel DBA. 1.29 "Force Majeure" means acts of nature (including fire, flood, earthquake, storm, hurricane, or other natural disaster), civil war, terrorism, national labor strikes or lockouts, unusual consequential delay in deliveries, unavoidable casualties or other adverse events beyond the Design/Builder's control which have an actual, negative effect on the City Facilities Component and Parking Facilities Component of the Project. 1.30 "GMP" means the Guaranteed Maximum Price for the Hotel Component of the Project, as defined and subsequently established in the Final GMP Amendment, and includes the Design/Builder's Fee as defined in Section 1.21 and the Cost of the Work as defined in Article 7 and Article 8. 1.31 "Hotel Budget" shall mean the budget for the Hotel Costs, as approved by Owner, and as same may be updated and modified with the prior written approval of Owner Representative in accordance with the terms of the Hotel Design -Build Agreement. It is agreed and understood that the Hotel Budget shall incorporate and shall include the Construction Contingency, and shall be subject to the approval of the City pursuant to the terms of the Master Development Agreement. 1.32 "Hotel Component' means the Hotel portion of the Project as defined in the 'Project" paragraph on page 1 of this Agreement. 1.33 "Hotel Costs" shall mean costs of the design, development, construction, furnishing, equipping, and opening of the Hotel, including hard costs, soft costs, FF&E, OS&E and Pre -Opening Costs. 1.34 "Hotel DBA" means that Design Build Agreement between the Development Manager, the Hotel Owner and the Design/Builder for the design and construction of the Hotel Component, as modified from time to time pursuant to its terms. 1.35 "Hotel Development Agreement" means that certain development management agreement by and among Development Manager, and Hotel Owner relating to the Hotel Component, as may be amended from time to time. 1.36 "Hotel Owner" means Cedar Trinity Corporation, a Texas non-profit corporation, an entity exempt from federal income tax under Section 501(a) of the Internal Revenue Code ("Code") as a nonprofit organization under Section 501(c)(3) of the Code. 1.37 "Intellectual Property" means all intellectual property rights of any kind, including patent rights (whether design or utility), copyrights, trademark and service mark rights, trade dress rights, utility model rights, moral (personal) rights, rights of publicity, trade secret rights, industrial design rights, and website and Internet domain rights. The Owner shall own all Intellectual Property related to the City Facilities and Parking Facilities Components. 1.38 "Master Development Agreement" means that certain development agreement, dated May 16, 2018, among the City, Development Manager, and Hotel Owner relating to the Project, as may be amended from time to time. Terms utilized in this Agreement shall be defined as set forth in Section 1.2 of the Master Development Agreement, a copy of which Section 1.2 is attached hereto as Exhibit C and made a part hereof, unless otherwise specifically indicated. 1.39 "Notice to Proceed" means that certain written notice issued by the Owner to the Development Manager and Design/Builder pursuant to Section 3.3.1 notifying the Design/Builder to proceed with the Work. 1.40 "Operator" means a Separate Contractor who enters into a contract with the Owner or Development Manager to operate the Hotel Component of the Project. The parties anticipate the initial Operator will be Interstate Hotels & Resorts, Inc. 1.41 Intentionally Omitted Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 4 1.42 Intentionally Omitted 1.43 "OS&E" means the Owner's operating supplies and equipment purchased to be used in the City Facilities and Parking Facilities Components. The OS&E is not included in the Work. 1.43.1 "Owner" means the City of Baytown, Texas. 1.44 "Owner's Representative" means the individual named by Owner to act on Owner's behalf in the administration of this Agreement, initially those persons named in Section 4.4 hereof. 1.45 "Parking Facilities Component" means the Parking Facilities as defined in the Project paragraph on page 1. 1.46 "Program" means the initial description of the Development Manager's objectives for the Project, including budgetary and time criteria, space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. 1.47 "Project Contingency" means an amount or amounts set forth in the Hotel Budget, outside of the GMP, as defined in the Master Development Agreement, which may be reallocated to cover Owner -approved changes upon receipt of documented Change Orders pursuant to Article 9 of the Hotel DBA and written approval of the Hotel Owner. 1.48 "Related Agreements" means the Master Development Agreement, any construction disbursing agreement, Parking Facilities Agreement, City Facilities Lease Agreement, Hotel Development Agreement, Hotel DBA, the Hotel Operating Agreement and any and all other agreements, documents or instruments entered into by Development Manager, Owner and/or the Hotel Owner in connection with the Project. 1.49 "Revised Substantial Completion Date" or "Revised SC Date" means the new date established for Substantial Completion of the Project resulting from extensions of time permitted by this Agreement and the Hotel DBA which extend the date of Substantial Completion for either the City Facilities Component, the Parking Facilities Component or the Hotel Component. 1.46.1 "Schedule of Work" (sometimes herein referred to as the "Construction Schedule") is described in Section 3.3.4. 1.50 "Separate Contractor" means any contractor, but not including Design/Builder or the Subcontractors, with whom Hotel Owner, Owner or Development Manager enters into a direct contract for the performance of services not included in the GMP. 1.51 "Services" means those services, functions, roles, responsibilities, obligations and duties required of Design/Builder pursuant to the terms of the Contract Documents. 1.52 "Subcontractor" means any person or entity having a direct contract or purchase order with Design/Builder for the performance or supply of all or any portion of the Work required by the Contract Documents or the supply of any materials, services, equipment or installation services required by the Contract Documents. The term Subcontractor does not include the Architect or any separate subcontractor or Separate Contractor employed by the Development Manager or Owner. The term Subcontractor shall also mean the Design/Builder in regard to any portion of the Work self -performed by the Design/Builder as permitted in this Agreement. 1.53 "Subcontractor Default Insurance" or "SDI" means insurance coverage for the full and faithful performance of Design/Builder's Subcontractors as described in Section 3.2.11. 1.54 "Subcontracts" means the contracts between Design/Builder and any Subcontractor but does not include those with the Architect. Development Manager and Owner acknowledge that of the subcontracts will be fixed price or lump sum agreements and will be treated as such in any audit pursuant to Section 8.3. 1.55 "Substantial Completion" means that stage of completion of the Project when construction is sufficiently complete in accordance with the Contract Documents so that the Owner, Development Manager, Hotel Owner or any Separate Contractor can occupy or utilize the Project for the use for which it is intended and a temporary or final certificate of occupancy or its equivalent and any other permits and orders necessary for occupancy of 100% of the City Facilities rooms, the Hotel rooms, the Parking Facilities spaces and the public spaces, and all of the back of house spaces for which the Design/Builder is responsible under the Contract Documents. Only punchlist items and closeout documents are to remain, which Design/Builder will diligently pursue until complete. 1.56 "Substantial Completion Date" or "SC Date" is that certain date set forth in the Final GMP Amendment as the date the Design/Builder agrees to achieve Substantial Completion of the Project and includes the Revised Substantial Completion Date for the Project, if any. 1.57 "Sub -Subcontractor" means any person or entity which has a subcontract or purchase order with a Subcontractor to perform or provide any portion of the Subcontractor's work. 1.58 "Value Engineering" means the detailed analysis of systems, equipment, materials, services, facilities, and supplies required by the Contract Documents for the purpose of achieving the desired and essential functions of the Project at the lowest Life Cycle Cost consistent with required and necessary performance, reliability, quality and safety. Value Engineering is to be performed during the Design Phase as a part of the Services required to reach a GMP for the Project acceptable to all parties. "Life Cycle Cost" means the sum of all Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 5 costs of the Project over its useful life, and includes the cost of design, construction, acquisition, operation, maintenance, and salvage/resale value. 1.59 "Warranties" means warranties obtained from the Design/Builder, Subcontractors, and Sub -Subcontractors of the Design/Builder pursuant to this Agreement, together with any and all manufacturers warranties in the name of or to be assigned to the Owner covering the work performed or materials furnished to the City Facilities and Parking Facilities Components of the Project or any subcomponent portion thereof by the Design/Builder. 1.58 "Work" means any and all labor, supervision, supplies, fixtures, vehicles, equipment, services, tools, materials, computers, utilities, items, documents and other items required by the Contract Documents for the City Facilities and Parking Facilities Components, including design, to be performed or supplied, including all services set forth in Section 2.5, all construction and permitting required to render the City Facilities Component and the Parking Facilities Component, and every subcomponent thereof, operational and usable for its intended purpose, provided, however, responsibility for the acquisition, storage and installation of the FF&E shall not be included in the Work. ARTICLE 2 GENERAL PROVISIONS 2.1 TEAM RELATIONSHIP The Owner, Development Manager and the Design/Builder agree to proceed with the City Facilities and Parking Garage Components of the Project on the basis of good faith and fair dealing, and shall take such actions that are reasonably necessary to perform this Agreement in an economical and timely manner, including consideration of design modifications and alternative materials or equipment that will permit the Work to be constructed within the Guaranteed Maximum Price (GMP) and by the Substantial Completion and Final Completion Dates. The Design/Builder shall cause the Architect and all design professionals to design the Work in accordance with the GMP; however, the Design/Builder may take reasonable actions necessary to maintain the GMP including minor changes to the drawings or specifications for a particular material, device, system after the GMP is accepted subject to the consent of the Owner and Development Manager. The Design/Builder may also utilize Value Engineering, subject to the consent and approval of the Development Manager and Owner and alternative systems analysis so long as the original intent of the systems or components within the Project is maintained. The Design/Builder agrees to procure the architectural and engineering services set forth below, and to furnish construction and administration of the Work. Nothing in this Agreement or any other Contract Document shall be construed or interpreted to establish a fiduciary relationship between the Design/Builder and the Owner or any other party. and build the Project, the Owner and the Development Manager have complied with the requirements of TEXAS GOVERNMENT CODE Section 2269.301, et seq. 2.2 ARCHITECT Architectural and engineering services shall be procured from licensed, independent design professionals retained by the Design/Builder or furnished by licensed employees of the Design/Builder. The Hotel Owner, Development Manager and the Owner have selected and Design/Builder has approved and accepted BOKA Powell LLC as the architect or engineer as set forth in the Master Development Agreement on the basis of demonstrated competence and qualifications, as provided by TEXAS GOVERNMENT CODE Section 2254.004. The person or entity providing architectural and engineering services is referred to as the Architect. The Architect is an independent design professional. The architectural and engineering services shall be procured pursuant to a separate agreement between the Design/Builder and the Architect subject to the approval of the Owner's Representative, which approval shall not be unreasonably withheld. Design/Builder shall contractually obligate Architect to indemnify the Owner and Development Manager consistent with the provisions of Chapter 130, TEXAS CIVIL PRACTICES AND REMEDIES CODE, and Section 271.904, TEXAS LOCAL GOVERNMENT CODE, and to maintain insurance (including errors and omissions coverage) for the benefit of the Owner, its officers, designated agents (in writing), and employees, and Development Manager as additional insureds (where applicable), in each case in form and substance acceptable to the Owner. It is understood that the Owner, Development Manager and Design/Builder are third -party beneficiaries under the insurance coverages to be provided by the Architect, but no other third -party beneficiary relationship is created herein. All contracts relating to the architectural and engineering services of the Work shall contain provisions that: (i) indemnify the Owner, Development Manager, and their agents, officers and employees against any costs or liabilities thereunder to the extent allowed by Texas law, (ii) acknowledge that Owner and Development Manager have no obligations and liability thereunder, (iii) identify the Owner and Development Manager as intended third -party beneficiaries thereof entitled to enforce their rights thereunder in their own name; (iv) list the Owner and the Development Manager along with their officers, agents and employees as additional insureds; and (v) otherwise comply with the other requirements of this Agreement. The Architect may not be changed by the Design/Builder without prior written consent of the Owner and Development Manager. 2.3 EXTENT OF AGREEMENT This Agreement and the Contract Documents are solely for the benefit of the parties, represent the entire and integrated agreement between the parties, and supersede all prior negotiations, representations or agreements, either written or oral. 2.4 CONTRACT DOCUMENTS The Contract Documents consist of: Owner and Development Manager agree that in executing this Agreement and selecting a design/build procedure to design .1 The Sections of the Master Development Agreement, attached as Exhibit C and made a part Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 6 hereof, including any amendments or modifications thereto; .2 The Sections of the Hotel Development Agreement, including any amendments or modifications thereto; .3 Change Orders and written amendments to this Agreement signed by the Development Manager, Owner, Design/Builder and, where applicable, Architect, including Final GMP Amendment incorporating the Design/Builders GMP and its attachments; .4 this Agreement and all Exhibits attached hereto; .5 the most current Contract Documents approved by the Development Manager and Owner pursuant to Sections 3.1.4.1, 3.1.5 or 3.1.6; .6 the information provided by the Owner pursuant to Section 4.1.2.1; .7 the Program, a copy of which is attached to the Hotel DBA and made a part hereof, pursuant to Section 4.1.1. .8 the Hotel DBA including any amendments or modifications thereto. In case of any inconsistency, conflict or ambiguity among the Contract Documents, the Contract Documents shall govern in the order in which they are listed above. 2.5 WORK The Work includes Design Phase Services procured in accordance with Section 3.1, the labor, materials, equipment and other costs and Design/Builder Fee set forth in the GMP Proposal provided in accordance with Section 3.2, the Construction Phase Services provided in accordance with Section 3.3, Additional Services that may be provided in accordance with Section 3.8, and other services which are necessary to complete the City Facilities and Parking Facilities Components of the Project in accordance with and reasonably inferable from the Contract Documents. ARTICLE 3 DESIGN/BUILDER'S RESPONSIBILITIES The Design/Builder shall be responsible for procuring the design and for the construction of the Work consistent with this Agreement and the Contract Documents. The Design/Builder shall exercise reasonable skill and judgment in the performance of its Services, but does not warrant or guarantee schedules and estimates other than those that are part of the Final GMP Amendment. The Design/Builder's representative is Nick Abay. 3.1 DESIGN PHASE SERVICES 3.1.1 PRELIMINARY EVALUATION The Design/Builder shall provide a preliminary evaluation of the feasibility of the City Facilities and Parking Facilities Components of the Project based on the Program and other relevant information. 3.1.2 PRELIMINARY SCHEDULE The Design/Builder shall prepare a preliminary schedule of the Work for Development Manager and Owner's written approval. The schedule shall show the activities of the Development Manager, Owner, Architect and Design/Builder necessary to meet the Project completion requirements. The schedule shall be updated periodically with the level of detail for each schedule update reflecting the information then available. If an update indicates that the end date of a previously approved schedule will not be met, the Design/Builder shall recommend corrective action to the Owner and Development Manager in writing. 3.1.3 PRELIMINARY ESTIMATE When sufficient information has been identified, the Design/Builder shall prepare for the Owner and Development Manager's written approval a preliminary cost estimate for the City Facilities and Parking Facilities Components utilizing area, volume or similar conceptual estimating techniques. The cost estimate shall be updated periodically with the level of detail for each estimate update reflecting the information then available. If the preliminary cost estimate or any update exceeds the budget for the City Facilities and Parking Facilities Components of the Project, the Design/Builder shall make written recommendations to the Owner and Development Manager. 3.1.4 SCHEDULE OF FEES AND EXPENSES Within ten (10) Days of the execution of this Agreement, Design/Builder shall submit for the Development Manager's and Owner's approval a schedule of anticipated fees, expenses and costs to be incurred by Design/Builder and its design team, including Architect, any engineer and any subconsultants, relating to design or preconstruction services to be incurred prior to the Initial GMP Amendment (the "Pre -GMP Budget Schedule"). A copy of the Pre -GMP Budget Schedule is attached hereto as Exhibit E and made a part hereof. Prior to the Effective Date the Design/Builder shall not incur any cost to be reimbursed as part of the Cost of the Work for the Design Phase, except as Owner may specifically authorize in writing. Payment of applications for payment will be made in accordance with the Pre -GMP Budget Schedule and Section 10.1.2 hereof. 3.1.4.1 SCHEMATIC DESIGN DOCUMENTS The Design/Builder shall submit for the Development Manager and Owner's written approval Schematic Design Documents, based on the Program and other relevant information. Schematic Design Documents shall include drawings, outline specifications and other conceptual documents illustrating the City Facilities and Parking Facilities Components basic elements, scale, and their relationship to the Site. One set of these documents shall be famished to each of the Development Manager and Owner. The Design/Builder shall update the preliminary schedule and cost estimate based on the Schematic Design Documents. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 7 3.1.5 DESIGN DEVELOPMENT DOCUMENTS The Design/Builder shall submit for the Development Manager and Owner's written approval Design Development Documents based on the approved Schematic Design Documents. The Design Development Documents shall further define the City Facilities and Parking Facilities Components of the Project including drawings and outline specifications fixing and describing the City Facilities and Parking Facilities Components size and character, and other appropriate elements incorporating the structural, architectural, mechanical and electrical systems for the overall Project. One set of these documents shall be furnished to each of the Development Manager and Owner. The Design/Builder shall update the schedule and cost estimate based on the Design Development Documents. 3.1.6 CONSTRUCTION DOCUMENTS/GMP DOCUMENTS The Design/Builder shall submit for the Development Manager's and Owner's written approval Construction Documents and/or GMP Documents based on the approved Design Development Documents for the City Facilities and Parking Facilities Components of the Project. These Documents shall set forth in detail the requirements for construction of the Work, and shall consist of drawings and specifications based upon codes, laws or regulations enacted at the time of their preparation. Construction shall be in accordance with these approved Construction/GMP Documents subject to changes in the Work provided for in this Agreement. One set of these documents shall be furnished to each of the Development Manager and Owner prior to commencement of construction. The GMP shall be established based on these documents. 3.1.7 OWNERSHIP OF DOCUMENTS 3.1.7.1 It is mutually agreed that all materials prepared by Design/Builder and all Subcontractors and Sub -Subcontractors under this Agreement in connection with the City Facilities and Parking Facilities Components of the Project will become the property of Owner upon payment for the materials. Immediately upon payment for the materials, Owner will be entitled to, and Design/Builder will deliver to Owner, all data, drawings, specifications, reports, estimates, summaries and other such materials as may have been prepared or accumulated to date by Design/Builder and all Subcontractors and Sub -Subcontractors in performing this Agreement, which is not Design/Builder's privileged information, as defined by law, or Design/Builder's personnel information. It is expressly understood and agreed that if this Agreement is terminated, the Design/Builder must tender all such materials within ten (10) Days of receipt of payment. 3.1.7.2 Additionally, it is agreed that Owner, Development Manager and Design/Builder intend this to be a contract for services and each considers the products and results of the services to be rendered by Design/Builder under this Agreement in connection with the Project to be a work made for hire. Design/Builder acknowledges and agrees that this work product (and all rights in this Agreement, including, without limitations, Intellectual Property) (hereinafter 'Work Product") belongs to and will be the sole and exclusive property of Owner. Owner shall have the right to use such Work Product in connection with the construction of, and any repairs or alterations to, the Project. Owner releases the Architect, the Design/Builder and the Development Manager from any claims or damages resulting from any material alteration of the Work Product by Owner in connection with the Project which is not approved by Design/Builder and the Architect and/or the use of such Work Product in the construction, repair or alteration of something other than the Project. 3.1.8 COORDINATION OF CONSTRUCTION The structures constituting the components of the Project, viz. the City Facilities, the Parking Facilities and the Hotel, will be connected with one another as part of an integral whole. Accordingly, the Architect, and many of the Subcontractors and Sub -Subcontractors, will be providing services on more than one component of the Project and in certain situations a Subcontract may include work on more than one component of the Project. In these situations the Design/Builder will allocate the cost of any such Subcontract in accordance with any written instructions provided by Development Manager and the Owner that accurately reflect the cost of the services performed for that portion of the Project. If no such written instructions are provided by Development Manager or Owner, Design/Builder will allocate the cost of any such Subcontract among the applicable structures based on Design/Builder's best esfimate as to the value of the services or material provided for each structure. Design/Builder shall provide Development Manager, Owner and Hotel Owner with its reason and justification of each Subcontract allocation with the applicable Application for Payment. 3.1.9 MODEL ROOMS AND EXTERIOR MOCK UP COMPLETION The model rooms for the Hotel Component and exterior skin mock up for the Project will be completed and delivered by Design/Builder on time in accordance with the scheduled date for delivery of each such item. Such scheduled dates shall be agreed upon by Design/Builder and Development Manager on or before the date of the Final GMP Amendment to this Agreement. Such dates shall be scheduled to occur early in the Construction Phase to allow for timely design and construction adjustments, Hotel Brand approval, and Value Engineering changes to the model rooms and/or exterior skin, as applicable. In the event either or both of such schedule dates are delayed without any approval by Development Manager and Owner for any such delay, each Day of unexcused delay for each of the items shall be automatically deducted from the number of days for any excused delays previously, or otherwise to be, granted to Design/Builder in accordance with Section 6.3 of this Agreement. 3.2 GUARANTEED MAXIMUM PRICE 3.2.1 When the drawings and specifications are in a condition that (with the agreement of Owner, Development Manager and Design/Builder) will enable the Design/Builder to accurately price the drawings, (but no later than 101 calendar days from Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 8 the Effective Date, unless such time is amended by agreement of the parties), Design/Builder shall propose the GMP for the City Facilities and Parking Facilities Components of the Project, which shall be the sum of the estimated Cost of the Work as defined in Article 8 and the Design/Builders Fee as defined in Article 7. The GMP is subject to modification only as provided in Article 9. 3.2.2 Intentionally Omitted. 3.2.3 The GMP shall not include either a Design/Builders Construction Contingency or a Design Contingency. Since the Hotel Owner, in accordance with the Master Development Agreement, has covenanted to fund, solely out of Available Moneys as defined in the Hotel DBA, any GMP contract costs for both the City Facilities Component and the Parking Facilities Component in excess of the Owner's available bond proceeds (subject to the conditions and limitations contained in Section 3.1.1(e) and 11.1.4 of the Master Development Agreement which sections are set forth in Exhibit C to the Hotel DBA), the Construction Contingency has been removed from the GMP under this Agreement and transferred to the GMP under the Hotel DBA. In the event any exigencies or unforeseen costs with regard to the Project were to arise which result in costs that are properly reimbursable with Development Managers and Owner's approval as a Cost of the Work but are not the basis for a Change Order, Design/Builder will look solely to the Construction Contingency as included in the GMP under the Hotel DBA. 3.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The Design/Builder shall include with the GMP proposal a written statement of the basis of the proposal, which shall include but not be limited to: .1 a list of the drawings and specifications, including all addenda, which were used in preparation of the GMP proposal; .2 a list of allowances by item and amount and a statement of their basis; .3 a list of the assumptions, clarifications and exclusions made by the Design/Builder in the preparation of the GMP proposal to supplement pricing and the information contained in the drawings and specifications; .4 the dates for Substantial Completion and Final Completion (which dates shall be the same for Substantial Completion and Final Completion for the Hotel Component) upon which the proposed GMP is based, and the Schedule of Work upon which these dates are based. An extension of the Contract Time to perform the Work under this Agreement shall also constitute an extension of the Contract Time to perform the Work under the Hotel DBA and an extension of the Contract Time to perform the work under the Hotel DBA shall constitute an extension of the Contract Time under this Agreement; .5 schedule of applicable alternate prices; .6 schedule of applicable unit prices, including, without limitation, the finish costs per square foot of typical guest rooms, suites, guest room corridors and public areas; .7 the results of Design/Builder's Value Engineering analysis of each component of the Project; .8 statement of Additional Services included, if any; and .9 the time limit for acceptance of the GMP proposal which shall not be less than 90 Days. 3.2.5 The Design/Builder shall meet with the Development Manager and Owner to review the GMP proposal. In the event that the Development Manager or Owner discovers any inconsistencies or inaccuracies in the information presented, the Development Manager or Owner shall promptly give written notice to the Design/Builder, who shall make appropriate adjustments to the GMP, its basis or both. 3.2.6 Unless the Development Manager and Owner accept the GMP proposal in writing on or before the date specified in the proposal for such acceptance and so notify the Design/Builder, the GMP proposal shall not be effective. 3.2.7 a) If the Design/Builder with the approval of Owner and Development Manager were to elect to begin work based on partially complete Construction Documents (which are sufficiently complete to obtain a building permit for the contemplated portion of the Work), Owner and Development Manager may accept the Initial Proposed GMP Proposal ("IGMP") as an initial GMP as described in an Initial GMP Amendment to this Agreement, recognizing that such IGMP is based on incomplete Construction Documents, but in Design/Builders professional opinion said Construction Documents are sufficiently complete to satisfy paragraph 3.2.1 for the Design/Builder to provide an accurate IGMP. Development Manager will promptly give Design/Builder its comments and conditions regarding the initial GMP. Design/Builder will work with the Architect and its consultants to perform Value Engineering exercises and to complete the final Construction Documents and receive updated pricing on the items to be included in the Final GMP Proposal. The Design/Builder will obligate the Architect to complete the final Construction Documents in conformance with the Program as part of its basic services. Changes in design or documentation required to bring an issued Construction Document in conformance with the scope of the Program shall be considered part of Design/Builders basic services hereunder, at no Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 9 additional cost to the Owner. In no circumstance, other than Owner -directed change(s) approved by Hotel Owner, will the amount of the GMP in the Final GMP Proposal exceed the amount of the IGMP in the IGMP Proposal submitted by the Design/Builder nor will the dates of Substantial Completion or Final Completion as set forth in the IGMP Proposal be modified in the Final GMP Proposal unless approved in writing by Owner, Development Manager and Hotel Owner. b) Upon acceptance by the Development Manager and Owner of the Final GMP Proposal, the GMP and its basis shall be set forth in Final GMP Amendment to this Agreement. The GMP, the date of Substantial Completion and of Final Completion shall be subject to modification only by Change Order as provided in Articles 6 and 9 or as otherwise provided in this Agreement. 3.2.8 Rejection of the GMP Proposal. If Owner in its discretion, is unwilling to approve the Design/Builder's final GMP proposal and enter into a Final GMP Amendment, Owner may, at Owner's election, with assistance from the Development Manager and with notice to the Hotel Owner, take one or more of the following actions: .1 terminate this Agreement by providing the Design/Builder with notice of termination. Promptly after such termination, receipt of final conditional releases from the Design/Builder, its Subcontractors, Sub -Subcontractors, material suppliers, and Architect, and the receipt of all documents, including, without limitation, the Construction Documents, requested by Owner, Owner shall pay the Design/Builder all costs incurred to the date of termination , supported by appropriate documentation, subject to Owner's approval, as full payment for all Work and Services performed by the Design/Builder to that point, which shall be the exclusive and total amount due the Design/Builder in connection with the Agreement and the termination thereof pursuant to this Section; or .2 direct the Design/Builder to continue to participate in Value Engineering exercises so that the Design/Builder can submit another GMP proposal at a reduced cost, in which case, Owner shall decide whether to accept the revised GMP proposal or terminate this Agreement and shall have the right to proceed or terminate as to that revised GMP proposal as set forth in this Section. Unless otherwise agreed by the Design/Builder, the Design/Builder shall not be required to perform Value Engineering exercises to attempt to get the GMP within the budget for more than thirty (30) days after the GMP Proposal has been rejected. The Design/Builder shall not be required to perform Value Engineering exercises if the amount of the GMP is within the budget. Prior to the issuance of the Final GMP Amendment and a written Notice to Proceed with the Construction Phase, the Design/Builder shall not incur any cost to be reimbursed as part of the Cost of the Work for the Construction Phase, except as Owner may specifically authorize in writing. 3.2.9 SALES TAX The Owner qualifies for exemption from state and local sales tax pursuant to the provisions of Article 20.4 (F) of the Texas Limited Sales, Excise and Use Tax Act. However, if any taxes are applicable to the Work, the Design/Builder shall pay sales, consumer, use and similar taxes as legally required. The GMP shall include in the Cost of the Work those Texas sales taxes which are applicable at the time the GMP is established. 3.2.10 PAYMENT, PERFORMANCE, AND MAINTENANCE BONDS a) The Design/Builder shall furnish separate performance, maintenance and payment bonds, each in the sum of one hundred percent (100%) of the total contract price, in such forms as the Owner may approve and with sureties as the Owner may approve, for this purpose, guaranteeing faithful performance of the contract, faithful performance of work during the warranty period and faithful payment to all persons supplying labor and materials or furnishing any equipment in the execution of the Agreement. b) All performance, payment, and maintenance bonds required herein shall remain in effect throughout the term of this Agreement and for a period of one (1) year after the completion of the work and shall be extended for any warranty work to cover the warranty period. c) If at any time during the execution of this Agreement or in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Design/Builder shall promptly supply within ten (10) days such other bond or bonds, which bond or bonds shall assure performance, maintenance or payment as required. Such replacement bond(s) shall be issued by a surety acceptable to the Owner. d) Subject to Article 9, the Design/Builder shall make such changes and alterations as the Owner may see fit in the work herein contemplated, or any part thereof without affecting the validity of this Agreement and any work accompanying bond. If such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for any claim for damages or anticipated profits on the work that may be dispensed with. 3.2.11 SUBCONTRACTOR DEFAULT INSURANCE In addition to and not in lieu of bonds required herein, the Design/Builder shall obtain Subcontractor Default Insurance in a penal sum in the amount of one hundred percent (100%) of the subcontracted volume. The cost of the Subcontractor Default Insurance is included in the GMP and shall be 1.4% of the applicable subcontracted volume attributed to the City Facilities and Parking Facilities Components. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 10 3.3 CONSTRUCTION PHASE SERVICES 3.3.1 The Construction Phase of the City Facilities and Parking Facilities Components will commence upon the issuance by the Owner to the Development Manager and Design/Builder of a written Notice to Proceed with construction of the City Facilities and Parking Facilities Components. This Notice to Proceed shall not be issuable until the following items have been obtained or established; (a) all offsite utilities are relocated, if necessary to allow construction of the Project to proceed in accordance with the Contract Documents, (b) the Construction Fund has been established and evidence that such funding has been allocated solely for use on the City Facilities and Parking Facilities Components (written confirmation of same from the Owner), (c) a building permit has been issued for the Work, (d) all zoning, platting and other governmental approvals and regulations associated with the Project have been obtained and satisfied, (e) Development Manager's and Owner's approval and acceptance of the Design/Builder's Initial GMP or the Final GMP, as applicable, and (f) the Hotel Owner is has issued or concurrently issues a Notice to Proceed for the Design/Builder to proceed with the Construction Phase Services under the Hotel DBA. 3.3.2 In order to complete the Work, the Design/Builder shall provide all necessary construction supervision, inspection, construction equipment, labor, materials, tools, and subcontracted items as part of the Cost of the Work. Owner shall provide for all construction materials testing by an independent third party testing firm, acceptable to Owner's Representative. The Owner shall provide Development Manager with a copy of all test results. Design/Builder shall provide services related to training of maintenance personnel, assisting with the commissioning, startup of systems and the adjusting and balancing of systems. 3.3.3 The Design/Builder shall give all notices and comply with all laws and ordinances which govern the proper performance of the Work, including noise ordinances and construction work hours as detailed in the Owner's ordinances; provided, however, in the event Owner enacts any law or ordinance following the date of execution of this Agreement, that causes the Cost of the Work to increase, Owner acknowledges and agrees that the GMP will be adjusted appropriately, provided, however, any such increase will not be included in calculating the excess costs chargeable to the Hotel Owner as contemplated in Section 3.2 of the Master Development Agreement. 3.3.4 The Design/Builder shall prepare and submit a Schedule of Work for the Development Manager's and Owner's written approval. This schedule shall indicate the dates for the start and completion of the various stages of the construction of the City Facilities and Parking Facilities Components and the overall Project, including the dates when information and approvals are required from the Development Manager or Owner. It shall be revised as required by the conditions of the Work. In addition, if the schedule changes as a result of an extension of time that is permitted under this Agreement or under the Hotel DBA, the schedule will be revised showing the extension of time. An extension of time granted under this Agreement shall constitute an extension of time for the Design/Builder to Substantially Complete the Work under the Hotel DBA and an extension of time granted under the Hotel DBA shall constitute an extension of time for the Design/Builder to Substantially Complete the Work under this Agreement. 3.3.5 The Design/Builder shall secure the building and any other permits necessary for the construction of the Project. The Design/Builder will not, however, be required to pay for any permit fees for permits to be issued by the Owner for the City, which will be waived in conjunction with this Agreement for the City Facilities and Parking Facilities Components 3.3.6 The Design/Builder shall take necessary precautions for the safety of its employees on the Project, including, but not limited to, the City Facilities and Parking Facilities Components, and shall comply with all applicable provisions of federal, state and municipal safety laws to prevent accidents or injury to persons on, about or adjacent to the Project Site. The Design/Builder, directly or through its Subcontractors and Sub -Subcontractors, shall erect and properly maintain at all times, as required by the conditions and progress of the Work, necessary safeguards for the protection of workers and the public. The Design/Builder, however, shall not be responsible for the elimination or abatement of safety hazards created or otherwise resulting from work at the Project Site carried on by the Development Manager and/or Owner or its employees, agents, Separate Contractors or tenants. The Development Manager and Owner agree to cause their employees, agents, Separate Contractors and tenants to abide by and fully adhere to all applicable provisions of federal, state and municipal safety laws and regulations. The above provision shall not relieve Subcontractors or Sub -Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with all applicable provisions of relevant laws. The Design/Builder shall coordinate the Work on the City Facilities and the Parking Facilities with the work on the Hotel in such a manner that construction phase services for all portions of the Project shall be handled in all respects for safety purposes as if all components of the Project were one project. 3.3.7 The Design/Builder shall keep such full and detailed accounts as may be necessary for proper financial management under this Agreement. Without cost to the Development Manager and Owner, the Design/Builder shall allow Development Manager and Owner the right at any time and from time to time, during normal business hours, to have access to any or all of Design/Builder's records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda and similar data relating to the Project and this Agreement. Design/Builder agrees to make such records available to Development Manager at a convenient location at the Project in Baytown, Texas, upon 48 hours' notice from Development Manager or Owner, as the case may be. The Design/Builder shall preserve all such records for a period of three years after the final payment or longer where required by law. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 11 3.3.8 The Design/Builder shall provide a copy of the daily jobsite reports to the Development Manager and monthly written reports to the Development Manager and Owner on the progress of the Work and the Project overall as agreed to by the Development Manager, Owner and Design/Builder. The Design/Builder's Representative shall meet at least weekly with Development Manager's Representative and Owner's Representative at the Site to review the progress of the Work and any substantive issues that could delay or otherwise negatively impact the Work and the Project overall. 3.3.9 The Design/Builder has developed a system of cost reporting for the Work and the Project overall, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes in the Work and/or Project. Design/Builder shall make available to Development Manager the software that Design/Builder uses to manage the Project and shall train Development Manager's personnel in the use of the Bluebeam studio software for file sharing and document markups. Design/Builder will share the appropriate project cost reports generated by CMIC (Design/Builder Cost Management Software) as requested and appropriate as required by this Agreement. Development Manager and Owner acknowledge and agree that neither Development Manager nor Owner shall have any rights whatsoever in and to such software and shall only use same with regard to the Project. The Owner and Development Manager will advise the Design/Builder promptly if the system developed by Design/Builder is not acceptable for use under the terms and provisions of this Agreement. 3.3.10 At all times, the Design/Builder shall maintain the Site free from debris and waste materials resulting from the Work. At the completion of the Work, the Design/Builder shall remove from the premises all construction equipment, tools, surplus materials, waste materials and debris. 3.3.11 The Design/Builder shall provide space within a construction trailer to house the Owner's designated field representative, and the Development Manager's designated field representative for the construction period. The Design/Builder shall provide electricity, regular cleaning, and tables and chairs. The Development Manager and Owner will provide their own equipment and supplies to carry out their work. 3.4 HAZARDOUS MATERIAL 3.4.1 A Hazardous Material is any substance or material identified now or in the future as hazardous under any federal, state or local law or regulation, or any other substance or material which may be considered hazardous or otherwise subject to statutory or regulatory requirements governing handling, disposal and/or clean-up. The Design/Builder shall not be obligated to commence or continue Work until any Hazardous Material discovered at the Site and existing at the Site prior to Notice to Proceed ("Pre -Existing Hazardous Material") has been removed, rendered or determined to be harmless by the Owner, as certified by an independent testing laboratory selected by Owner and approved by the appropriate government agency, provided that in making such a determination, Owner may rely conclusively and without inquiry upon the independent testing laboratory. 3.4.2 If after the commencement of the Work, Pre -Existing Hazardous Material is discovered at the Site, the Design/Builder shall be entitled to immediately stop Work in the affected area, and the Design/Builder shall report the condition to the Owner and, if required, the government agency with jurisdiction. 3.4.3 The Design/Builder shall not be required to perform any Work relating to or in the area of any Pre -Existing Hazardous Material without written mutual agreement among the parties. 3.4.4 For any Pre -Existing Hazardous Material, the Owner shall be responsible for retaining an independent testing laboratory to determine the nature of the material encountered and whether it is a Hazardous Material requiring corrective measures and/or remedial action. Such measures shall be the sole responsibility of the Owner, and shall be performed at Owner's cost (subject to appropriation of funds) in a manner minimizing any adverse effect upon the Work of the Design/Builder. The Design/Builder shall resume Work in the area affected by any Pre -Existing Hazardous Material only after the Pre -Existing Hazardous Material has been removed or rendered harmless by Owner. 3.4.5 If the Design/Builder incurs additional costs and/or is delayed due to the presence of Pre -Existing Hazardous Material, the Design/Builder shall be entitled to an equitable adjustment in the GMP and/or the date of Substantial Completion and Final Completion and such additional costs shall be considered a Cost of the Work. 3.4.6 (Intentionally omitted) 3.4.7 Design/Builder shall be solely responsible for any costs of testing or remediation of Hazardous Materials brought onto the Site by Design/Builder, any Subcontractor or Sub -Subcontractor, or any other person for whom the Design/Builder is responsible. To the fullest extent permitted by law, Design/Builder shall defend, indemnify and hold harmless, Development Manager, Owner and the agents, officers, directors, members and employees of each of them, from and against any and all claims, damages, losses, costs and expenses including, but not limited to, reasonable attorney's fees, cost and expenses whether direct or indirect incurred in connection with litigation, mediation or arbitration, arising out of or resulting from Hazardous Substances at the property brought on site and improperly handled by the Design/Builder, its Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 12 Subcontractors, Sub -Subcontractors and material suppliers, the Architect and the agents and employees of each of them. 3.4.8 The terms of this Section 3.4 shall survive the completion of the Work under this Agreement and/or any termination of this Agreement. 3.5 ROYALTIES, PATENTS AND COPYRIGHTS The Design/Builder shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods or systems selected by the Design/Builder and incorporated in the Work. The Design/Builder shall defend, indemnify and hold the Development Manager, Owner and their agents, employees, and officers, harmless from all suits or claims for infringement of any patent rights or copyrights arising out of such selection. 3.6 CONFIDENTIALITY Design/Builder shall treat as confidential and not disclose to third persons, except Subcontractors, Sub -Subcontractors, material suppliers, the Architect and their respective employees and agents as is necessary for the performance of the Work, including authorities having jurisdiction, or use for its own benefit any of Development Manager's and Owner's development strategies, confidential information, know-how, discoveries, production methods and the like that may be disclosed and identified as confidential to Design/Builder by the Owner or the Development Manager in connection with the Work. Development Manager and Owner (to the extent permitted by Law) shall treat as confidential information, and not disclose to any unnecessary third persons or parties, all of Design/Builder's estimating systems, historical and parameter cost data, or any other confidential information that may be disclosed and identified as confidential to Development Manager and Owner by Design/Builder in connection with the performance of this Agreement. Notwithstanding the foregoing or anything to the contrary contained herein, the Design/Builder acknowledges that Owner is a governmental entity subject to the TEXAS PUBLIC INFORMATION ACT, TEXAS GOVERNMENT CODE CHAPTER 552, and acknowledges that this Agreement and confidential information received from Design/Builder, Owner and Development Manager that is covered by this Agreement will be considered public records and will be subject to disclosure in compliance with Texas law, except for information falling within one of the exemptions therefrom. The Owner is required to and shall comply with all Applicable Laws with regard to any records, documents and information related to Owner's dealings and relationship with the Design/Builder. Nothing in this Agreement shall be deemed or construed as a limitation on Owner's discretion relating to compliance with the applicable law. Nevertheless, Owner will use reasonable efforts to provide notice as stated in Section 552.305 of TEXAS GOVERNMENT CODE within ten (10) business days after receiving any request that seeks disclosure of information provided by or concerning the Design/Builder but shall have no liability arising out of its failure to do so in a timely manner or at all. The Parties shall reasonably cooperate to determine whether or to what extent the requested information may be released without objection and without seeking a written opinion of the Texas Attorney General. If the Design/Builder asks the Owner to seek an opinion from the Texas Attorney General raising any applicable exception to release of such information, Design/Builder shall be solely responsible to draft and submit to the Texas Attorney General the substantive comments or arguments in support of such opinion request. The Design/Builder and the City will comply with the resulting opinion of the Texas Attorney General. 3.7 WARRANTIES AND COMPLETION 3.7.1 Subject to the warranty periods described in this Section 3.7.1, the Design/Builder warrants that all materials and equipment furnished under the Construction Phase of this Agreement will be new, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. Warranties shall commence on the date of Final Completion of the Project or of a designated portion thereof (as applicable) and end one (1) year after the date of Final Completion. The Design/Builder agrees to correct any breach of this warranty and to correct all construction performed under this Agreement which proves to be defective in workmanship and materials prior to or within a period of one (1) year from the date of Final Completion; provided, however, in the case of mechanical, electrical, or plumbing workmanship and materials, the warranty period shall extend for a period of twelve (12) months from the date of substantial completion . All Warranties required beyond these periods shall be from manufacturers or suppliers and, except those in the name of the Owner already, shall be assigned directly to the Owner. Nothing contained herein shall be construed as a waiver of Owner's rights to enforce the full extent of any repose period under Texas law and nothing contained in this Agreement shall constitute the modification of a contracted warranty period by any repose period under Texas law. 3.7.2 Products, equipment, systems or materials incorporated in the Work at the direction of or upon the specific request of the Development Manager or Owner over the written objection of Design/Builder shall not be warranted by Design/Builder except to the extent of a manufacturer's warranty. 3.7.3 The Design/Builder shall secure required certificates of inspection, testing or approval for materials and equipment incorporated into the Work and deliver them to the Owner. Design/Builder shall assign all manufacturer and material supplier warranties to Owner upon Final Completion. 3.7.4 The Design/Builder shall collect all written warranties and equipment manuals and deliver them to the Owner. 3.7.5 Design/Builder shall be responsible for commissioning the equipment and shall, with Operator's assistance and in accordance with applicable specifications, train the Owner's maintenance personnel including any Separate Contractors. The Design/Builder shall direct the checkout of utilities and operations of systems and equipment for readiness, and assist in their initial start-up and testing. Design/Builder shall notify Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 13 Development Manager promptly of each commissioning agent, if used, for such checkout, startup or testing. 3.7.6 Design/Builder shall immediately proceed to correct Work rejected in accordance with this Agreement by Development Manager or Owner as defective or failing to conform to the Contract Documents, unless such Work is accepted in accordance with other provisions of this Agreement. Design/Builder as a charge against the GMP shall bear all costs and expenses associated with correcting such rejected Work, including any additional testing and inspections and any fees and expenses of the Architect made necessary thereby, without adjustment to the GMP. 3.7.7 Owner may, at its sole discretion, choose to accept defective or nonconforming Work. Such acceptance shall not be effective unless specifically and expressly stated in writing by Owner's Representative. In such event, the GMP shall be reduced by the reasonable diminishment of value of the Work as determined by a third party value appraiser acceptable to both Owner and Design/Builder. Owner may request this appraisal prior to making its choice. The cost of such value appraiser shall be bome by Design/Builder. If the unpaid portion of the GMP, if any, is insufficient to compensate Owner for the acceptance of defective or nonconforming Work, Design/Builder shall, upon written demand from Owner, pay Owner any shortfall of compensation for accepting defective or nonconforming Work. 3.8 ADDITIONAL SERVICES The Design/Builder shall provide or procure the following Additional Services upon the written request of Development Manager and Owner. Any Additional Services approved by Owner and Development Manager shall define the extent of such Additional Services and shall be identified in Attachment 7 to the Final GMP Amendment. Such Additional Services shall be considered a change in the Work, unless they are specifically included in Attachment 7. Additional services may include, but are not limited to, the following: .1 Artistic models for any part of the Project or the Work. .2 Making revisions to the Schematic Design, Design Development, Construction Documents or documents forming the basis of the GMP after they have been approved by the Development Manager and Owner, and which are due to causes beyond the control of the Design/Builder and upon which the Design/Builder has relied and has expended funds in accordance therewith. 3 Estimates, proposals, appraisals, consultations, negotiations and services in connection with the repair or replacement of an insured loss. .4 The premium portion of overtime work for City Facilities and Parking Facilities Components ordered or caused by the Development Manager and Owner. .5 Services requested by the Development Manager and Owner or required by the Work which are not specified in the Contract Documents and which are not normally part of generally accepted design and construction practice. .6 Serving or preparing to serve as an expert witness in connection with any proceeding, legal or otherwise, regarding the Project. ARTICLE 4 DEVELOPMENT MANAGER/OWNER'S RESPONSIBILITIES 4.1 INFORMATION AND SERVICES PROVIDED BY DEVELOPMENT MANAGER & OWNER 4.1.1 The Development Manager and the Owner shall provide full information in a timely manner regarding requirements for the City Facilities and Parking Facilities Components of the Project, including the Program and other relevant information. The Design/Builder recognizes that the Development Manager has entered into the Master Development Agreement and the Hotel Development Agreement and the Design/Builder has been provided with a fully executed copy of each. Owner and Development Manager agree if the terms of the Master Development Agreement were changed in any way over time that would have a substantial effect on the Construction Schedule, scope and/or funding of the Project, to execute a Change Order with Design/Builder modifying this Agreement and the Hotel DBA which will, if and as appropriate, adjust the GMP and/or extend the Contract Time to cover any and all increased costs, expenses and additional fees required by such change and to cover any extension of the Contract Time resulting from such change. 4.1.2 The Owner shall provide: .1 where currently available, general information describing the physical characteristics of the Site, including surveys, site evaluations, legal descriptions, existing conditions, subsurface and environmental studies, reports and investigations; the definition of the wetland boundaries; and .2 tax exempt certificate, if applicable. 4.1.3 The Development Manager and Owner shall provide reasonable evidence satisfactory to the Design/Builder and in compliance with Texas law, prior to commencing the Work, and during the progress of the Work, that sufficient funds are available and committed for the entire cost of the City Facilities and Parking Facilities Components of the Project (i.e. the Construction Fund), including an allowance for changes in the Work as may be approved in the course of the Work. Unless such reasonable evidence is provided, the Design/Builder shall not be required to commence or continue the Work. Design/Builder shall be entitled to a regular update of status of funds by virtue of a certification of remaining funds from Owner but no more frequently than monthly. The Design/Builder may Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 14 stop Work after ten (10) Day's written notice to the Development Manager and Owner if such evidence is not presented within ten (10) business days after it is requested. The failure of the Design/Builder to insist upon the providing of this evidence at any one time shall not be a waiver of the Development Manager's obligation to make payments pursuant to this Agreement, nor shall it be a waiver of the Design/Builder's right to request or insist that such evidence be provided at a later date. 4.1.4 The Design/Builder shall review and verify the information for completeness and accuracy as to the information and services required by this Section 4.1. The Owner does not warrant the accuracy of any information provided pursuant to this Section 4.1. 4.1.5 Any unforeseen condition or any evidence of dispute which may arise between the Owner and the Development Manager resulting in default of the Development Manager, shall not affect the Design/Builder's right, if otherwise enforceable, to be paid under this Agreement. 4.2 DEVELOPMENT MANAGER'S/OWNER'S RESPONSIBILITIES DURING DESIGN PHASE 4.2.1 The Development Manager provided the Program at the inception of the Design Phase and shall review and timely approve schedules, estimates, Schematic Design Documents, Design Development Documents and Construction Documents furnished during the Design Phase as set forth in Section 3.1, and the GMP proposal as set forth in Section 3.2. The Development Manager shall seek written approval of these documents from the Owner, and shall be responsible to obtain approvals from any other third party, tenant, or Separate Contractor for which approval is required. The Development Manager shall obtain the necessary approvals in a timely manner consistent with the Design/Builder's schedule for the City Facilities and Parking Facilities Components. 4.3 DEVELOPMENT MANAGER'S/OWNER'S RESPONSIBILITIES DURING CONSTRUCTION PHASE 4.3.1 The Development Manager and Owner shall review and approve the Schedule of the Work as set forth in Section 3.3.4, in a timely manner. 4.3.2 If the Development Manager becomes aware of any error, omission or failure to meet the requirements of the Contract Documents or any fault or defect in the Work, the Development Manager shall give prompt written notice to the Design/Builder and the Owner, if applicable. 4.3.3 The Development Manager and Owner shall communicate with the Design/Builder's Subcontractors, and suppliers only through the Design/Builder. The Development Manager and Owner shall have no contractual obligations to Subcontractors, Sub -Subcontractors, suppliers, manufacturers or the Architect. 4.4 DEVELOPMENT MANAGER/DESIGN/BUILDER / OWNER'S REPRESENTATIVE The Development Manager's representative is Steve Galbreath, the Owner's Representative is Jose Pastrana, P.E., and the Design/Builder's representative is Nick Abay, all of whom are agreed to by the parties. The representatives may only be changed by the parties with written consent, and such consent shall not be unreasonably withheld. The representatives: .1 shall be fully acquainted with the Project; .2 agree to furnish the information and services required of the parties pursuant to Section 4.1 so as not to delay the Work; and 3 shall have authority to bind their respective participants in all matters requiring the Development Manager's and Owner's approval, authorization or written notice. If the Development Manager or the Owner changes its representative's authority as listed above, the parties shall be notified in advance in writing. .4 The Development Manager, Owner and Design/Builder understand and agree that the intent of this Agreement is to cause the Design/Builder to construct the City Facilities Component and Parking Facilities Component within the scheduled time period at or below the GMP as adjusted for changes provided in accordance with this Agreement. The Development Manager has been engaged by the Owner to develop the entire Project to completion in accordance with the Master Development Agreement and by the Hotel Owner to develop the Hotel Component to completion in accordance with the Hotel Development Agreement. .5 Owner and Development Manager shall, within ten (10) Days of presentation by Design/Builder, reach agreement on decisions related to the Project which require approval of either or both parties. In the event of any dispute or conflict between Owner and Development Manager is not resolved within ten (10) Days, the Design/Builder shall act in accordance with the Owner's decision, so long as adjustments in the Contract Time or the GMP, if any, are agreed to by the Owner and Design/Builder. ARTICLE 5 SUBCONTRACTS Work not performed by the Design/Builder with its own forces shall be performed by Subcontractors. 5.1 RETAINING SUBCONTRACTORS The Design/Builder shall not retain any Subcontractor to whom the Development Manager or Owner has a reasonable and timely objection, provided that the objecting party agrees to compensate the Design/Builder for any additional costs, time, or other Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 15 obligations incurred by the Design/Builder as a result of such objection. The Design/Builder shall not be required to retain any Subcontractor to whom the Design/Builder has a reasonable objection. Design/Builder will provide Owner with a list of acceptable Subcontractors prior to subcontracting and allow Owner fourteen (14) Days to review and provide comment to Design/Builder prior to Design/Builder subcontracting with Subcontractors including, without limitation, Design/Builder or its affiliate as a Subcontractor. 5.1.1 BIDDING AND CONTRACT AWARD Design/Builder shall provide all necessary Services related to the bidding of Subcontracts for the construction of the City Facilities Component and the Parking Facilities Component of the Project, including: (a) preparing lists of prospective qualified bidders; (b) preparing appropriate bid documents, including proposed forms of Contract and purchase order; (c) establishing bid schedules; (d) developing bidder interest; (e) furnishing information concerning the City Facilities Component and Parking Facilities Component of the Project to prospective bidders; (f) conducting pre-bid conferences; (g) receiving and analyzing bids and providing notification to Development Manager and Owner regarding bid awards; (h) investigating the acceptability and responsibility of Sub -Subcontractors or suppliers proposed by any Subcontractor and advising Development Manager and Owner of such evaluations, and (1) negotiating with Subcontractors concerning any matter related to the City Facilities Component and the Parking Facilities Component of the Project. Design/Builder shall include in its bid specifications and any subsequent contract or other agreement that it will not deny or diminish the right of a person to work because of the person's membership or other relationship status with respect to an organization. Design/Builder shall provide written certification satisfactory to Owner of its compliance with Section 5.1 and this Section 5.1.1 at the time of bidding. 5.1.2 COMPETITIVE PROCUREMENT Design/Builder shall use competitive procurement methods, and subject to market availability by trade, shall use reasonable efforts to secure at least three (3) competitive proposals for each unit of work over $50,000.00. To the extent Design/Builder wishes to submit a bid for the performance of work by its own forces (including without limitation excavation, concrete, reinforcing steel, miscellaneous steel, structural steel, carpentry) it shall include such information in the bids with the other competitive bids noting that it is the designated bidder. All such bids shall be considered as any other competitive bid. Owner and Development Manager represent that public bidding procedures are not required and Design/Builder is authorized to negotiate with apparent responsive bidders to search out best value for the City Facilities Component and the Parking Facilities Component of the Project. Design/Builder will comply with all statutory requirements. 5.2 MANAGEMENT OF SUBCONTRACTORS The Design/Builder shall be responsible for the management of the Subcontractors and the Sub -Subcontractors in the performance of the Work. 5.3 ASSIGNMENT OF SUBCONTRACT AGREEMENTS The Design/Builder shall provide for assignment of subcontract agreements and Warranties, express or implied, in the event that the Owner terminates this Agreement for cause as provided in Section 12.2. Following such termination, the Owner shall notify in writing, those Subcontractors whose assignments will be accepted, subject to the rights of sureties. 5.4 COMPLIANCE WITH LAWS All agreements between Design/Builder and any Subcontractors shall include the agreement of such Subcontractors to comply with Applicable Laws. 5.5 BOND TRUSTEE REQUIREMENTS Design/Builder agrees to execute agreements or documents with or for the Bond Trustee (as defined in the Hotel DBA) as are usual and customary for design/builders with regard to similar project financing provided such agreement or documents do not increase the cost, obligations or risks, of the Design/Builder under this Agreement, modify the terms or provisions of this Agreement, or impair its rights or expectations to receive any monies or benefits when due under this Design/Build Agreement. ARTICLE 6 CONTRACT TIME 6.1 COMMENCEMENT OF THE WORK The Design Phase Work will commence on the Effective Date of this Agreement. Design/Builder shall commence work on the Construction Phase on or before 204 Days from the Effective Date, unless unable to proceed as a result a cause outside the control or responsibility of Design/Builder. The Work shall proceed in accordance with the Schedule of Work as such schedule may be amended from time to time, subject, however, to the provisions of Section 3.4 and Section 4.1.3. The Construction Phase shall commence when the Notice to Proceed is issued by the Owner, and shall become effective only when it complies with the definition of the Notice to Proceed provisions as detailed in Section 3.3.1 herein. If the Notice to Proceed were to be based on an initial GMP, the Schedule of Work shall be modified to reflect such pre -final GMP start. The Work shall proceed in accordance with the Schedule of Work as such schedule may be amended from time to time, subject, however, to the provisions of Section 3.4 and Section 4.1.3 and any other applicable sections of this Agreement 6.2 SUBSTANTIAL COMPLETION At such time as a GMP is accepted, dates for Substantial Completion and Final Completion shall be established and set forth in the Final GMP Amendment. Thereafter, Design/Builder will reasonably and diligently pursue the Work and completion of the Project and City Facilities Component and Parking Facilities Component, in conformance with those dates. Time is of the essence in the completion of the Project. The Design/Builder acknowledges and agrees that the Owner will suffer damage due to the failure of the Design/Builder to achieve Substantial Completion of the Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 16 Project by the SC Date. The Design/Builder acknowledges and agrees that these damages will be comprised of such things as, but not necessarily limited to, increased project management costs, additional employee compensation, additional consultant compensation, other increased costs associated with delays in the opening of the Project to the public and that these damages may additionally be comprised of such things as, but not necessarily limited to, lost profits and damages, liabilities and judgments arising from claims of third parties against the Owner for breach of promises or commitments to third parties associated with delay and/or potential delay in the opening of the Project. Such damages, while not precisely known at the time of execution of this Agreement, are expected to escalate significantly over time, and beginning on the sixty-first (61st) Day to the estimated level of daily convention business loss due to the unavailability of the City Facilities Component and Parking Facilities Component being open to the public. Accordingly, the Owner and the Design/Builder agree that the Design/Builder and Design/Builder's surety, if any, shall immediately pay directly to the Owner the "Liquidated Damages" for the City Facilities Component and Parking Facilities Component consisting of (i) $3,000.00 per Day as liquidated damages, and not as a penalty, for each Day, up to and including the sixtieth (60th) Day, that the Design/Builder fails to achieve Substantial Completion of the Project on or before the SC Date; and (ii) $9,000.00 per Day as liquidated damages, and not as a penalty, for each Day after the sixtieth (60th) Day, that the Design/Builder fails to achieve Substantial Completion of the Project on or before the SC Date; provided, however, the aggregate amount of the liquidated damages for delay under this Agreement shall not exceed $250,000.00 under any circumstances. Permitting the Design/Builder to continue and substantially complete the Work after the SC Date and/or permitting the Design/Builder to continue and finally complete the Work on or before the Final Completion Date, as applicable, shall in no way operate as a waiver on the part of the Owner of any of its rights under this Agreement, including the Owner's rights to recover from the Design/Builder the liquidated damages set forth herein. The liquidated damages described above shall constitute Owner's sole and exclusive remedy for any delays in the Substantial Completion of the City Facilities and the Parking Facilities. Provided, however any damages resulting from any other breach of the terms and provisions of this Agreement will be handled in accordance with Article 12 hereof. 6.2.1 Intentionally Omitted 6.2.2 FINAL COMPLETION Final Completion of the Project shall occur not later than thirty (30) Days after the SC Date or Revised SC Date, if applicable. 6.3 DELAYS IN THE WORK 6.3.1 If causes beyond the Design/Builder's control delay the progress of the Work, then the GMP, compensation for Design Phase Services, the Design/Builder's Fee and the SC Date shall be modified by Change Order as appropriate. Such causes shall include but not be limited to: changes ordered in the Work, acts or omissions of the Development Manager or Owner or Separate Contractors employed by the Development Manager or Owner which prevent the Design/Builder from performing the Work, the Development Manager or Owner preventing the Design/Builder from performing the Work pending dispute resolution, pre-existing Hazardous Materials, differing site conditions which have or will have a material adverse effect on the Work or Force Majeure. Extreme Weather that has caused or may cause delays will be identified by the Design/Builder and written notice given to the Development Manager weekly. Any disagreement as to the significance or effect of said Extreme Weather on the Work and its progress will be handled in accordance with Article 13. 6.3.1.1 Extreme Weather (to include, but not be limited to, rain, mud, wind, ice, cold weather or acts of nature) delays will be managed monthly, with an allowance for one (1) weather delay day in each month already being included in the Construction Schedule. These monthly allowed Days are cumulative. The Extreme Weather delay days shall be tracked and reported to Development Manager on a monthly basis. If Extreme Weather delay days are agreed between the Owner, Development Manager, and Design/Builder and are encountered on the Project in excess of the allowance provided above, Design/Builder shall be entitled to an extension of the Contract Time equal to the number of Extreme Weather delay days that are experienced if such request is made to Owner by the seventh Day of the month after such Extreme Weather occurred. 6.3.2 In the event delays to City Facilities and Parking Facilities Components of the Project are encountered for any reason, the parties agree to undertake reasonable steps to mitigate the effect of such delays. If the delays to the City Facilities Component and Parking Facilities Component of the Project are result of causes beyond the Design/Builder's control, the Design/Builder shall be compensated for any and all additional costs and expenses incurred by the Design/Builder to mitigate the effect of such delays as approved by the Owner, Hotel Owner and Development Manager, such approval not to be unreasonably withheld, and the GMP shall be increased by a Change Order by the amount of the additional costs and expenses incurred by the Design/Builder to mitigate such delays. Reasonable costs, expenses and damages incurred by the Design/Builder to mitigate a delay shall be considered a Cost of the Work. 6.3.3 It is understood by the parties to this Agreement that any additional costs resulting from delays outside the control of the Design/Builder (as described in Section 6.3.1), in excess of the Owner's Construction Fund, shall be funded from the Hotel Owner's Project Contingency or any other available source as approved by Hotel Owner as an increase to the GMP. Such additional costs and/or expenditures for delays outside of the Design/Builder's control shall be available to Design/Builder after presentation, on or before the seventh Day of the month after such delay occurred, of sufficient evidence to demonstrate a delay occurred and was beyond the control of Design/Builder. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 17 6.3.3.1 General Conditions related costs (staff supervision and job office related expense) shall be adjusted per work Day for Extreme Weather delay days in excess of the one (1) Day per calendar month listed in Section 6.3.1.1 outside the control of the Design -Builder, and the GMP will be increased by the lump sum value of the pro rata share of the general conditions divided by the construction duration. 6.3.4 WAIVER OF CONSEQUENTIAL DAMAGES The Owner and Development Manager waive claims against Design/Builder and Design/Builder waives claims against Owner and Development Manager for indirect, special, punitive, exemplary and/or consequential damages arising out of or relating to this Agreement, except those damages or losses incurred by Owner or Development Manager if and to the extent covered and paid by the Commercial General Liability or Excess Policies required to be carried by Design/Builder for the Project, with the express understanding that nothing contained in this section shall be deemed to preclude an award of liquidated damages, when applicable, in accordance with Section 6.2 above. This waiver includes damages incurred by any party for rental expenses, for losses of use, income, profit, financing, business and reputation, and loss of management or employee productivity or of the services of such persons. This waiver is applicable, without limitation, to all consequential damages due to any party's termination in accordance with Article 12.2 provided the waiver does not affect, release, or waive the last paragraph in Section 12.2.2. ARTICLE 7 COMPENSATION/LIMITS NOTWITHSTANDING ANY PROVISION OF THIS ARTICLE 7 OR ELSEWHERE IN THIS AGREEMENT, OWNER'S LIABILITY FOR PAYMENT OF ANY AMOUNTS TO ANY PERSON HEREUNDER SHALL BE LIMITED TO AMOUNTS OF AVAILABLE MONEYS AS DEFINED IN SECTION 14.10. 7.1 PAYMENTS Payments shall be made to the Design/Builder in the amount and at the times as set forth in the draw schedules for the City Facilities and Parking Facilities Components, as prepared by Development Manager and approved by Owner; provided Work has progressed to the extent described in the applicable draw request. The Design/Builder shall invoice monthly during the Design Phase Service with payment subject to the terms of Section 7.2. 7.2 DESIGN PHASE COMPENSATION 7.2.1 The cost of services performed directly by the Architect is part of the Design Phase Compensation and the Design/Builder's GMP; however, it shall be detailed separately from the Design/Builder's proposal for Design Phase Services. The payments to the Architect shall be as detailed in a separate Agreement between the Design/Builder and Architect. 7.2.2 The Owner shall compensate the Design/Builder for the Design Phase Services described in Section 3.1, including preparation of a GMP proposal as described in Section 3.2. The Design/Builder shall then compensate the Architect for its Design Phase Services. 7.2.3 Design/Builder Design Phase Compensation. For the period from the Effective Date through the time when the City Facilities Component and Parking Facilities Component of the Project are financed and the Construction Fund is established, the Owner shall pay monthly Design/Builder's Design Phase Compensation in accordance with the Pre -GMP Budget Schedule set forth in Section 3.1.4 above, consisting of the reimbursable expenses portion of Cost of the Work which Design/Builder incurs in performance of Design Phase Services plus Design/Builder's Fee for Services. The Design Phase Compensation shall be rolled into and become a part of the GMP. 7.2.4 Total Fees and Costs. Total Design Phase fees and costs payable by Owner to the Design/Builder, the Architect and the Development Manager for both the City Facilities Component and the Parking Facilities Component shall not exceed, in the aggregate, the amount of $1,875,000.00. 7.2.5 Payments for both the Design/Builder and Architect Design Phase Services shall be due and payable monthly within thirty (30) Days from receipt of an application for payment, but only to the extent funds are available for such payment and the Work has progressed to the extent described in the draw request. If the Owner fails to pay the Design/Builder as stated herein and in accordance with Texas law, then the Design/Builder shall have the right to stop the Work and be entitled to payments due plus interest as provided in Sections 10.1.3, 10.1.4, and 10.1.5. 7.3 CONSTRUCTION PHASE COMPENSATION 7.3.1 From lawfully available funds only, the Owner shall compensate the Design/Builder for Work performed following the commencement of the Construction Phase on the following basis: 1 the Cost of the Work (including General Conditions costs) as allowed and defined in Article 8, (less retainage as provided herein) excluding any Construction Contingency which Contingency is included in the Hotel Budget. .2 the Construction Phase fee of 3.0 percent (3.0%) (which is not part of the General Conditions) times the Cost of the Work. The Construction Phase fee shall be earned and billed in equal monthly installments spread out over the agreed upon Construction Schedule. 7.3.2 The compensation to be paid under Section 7.3 shall be limited to the GMP established in the Final GMP Amendment, as the GMP may be adjusted under Article 9. In the event the Cost of the Work, plus the Design/Builder's Fee shall be less than the GMP as adjusted by Change Orders, the resulting savings shall be shared by the Owner and the Design/Builder as follows: forty percent (40%) allocated to the Owner, thirty Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 18 percent (30%) allocated to the Design/Builder and thirty percent (30%) allocated to the Development Manager. Any sharing with the Architect shall be handled by the Design/Builder. 7.3.3 Payment for Construction Phase Services shall be as set forth in Article 10. If Design Phase Services continue to be provided after construction has commenced, the Design/Builder shall be compensated as provided in Section 7.3.1 or as mutually agreed by Owner, Design/Builder and Development Manager. Notwithstanding any provision of this Agreement to the contrary, for the purpose of applying the Design/Builder's Fee of 3.0% to the Cost of the Work for both the Design Phase and the Construction Phase, architectural and engineering fees and expenses of the Architect and the Architect's consultants and subconsultants shall be excluded from the Cost of the Work. 7.4 DESIGN/BUILDER'S FEE The Design/Builder's Fee includes the following: salaries and other mandatory or customary compensation of the Design/Builder's employees at its principal and branch offices, except employees listed in Section 8.2.2; .2 general and administrative expenses of the Design/Builders principal and branch offices other than the field office, except as may be expressly included in Article 8; and .3 the Design/Builder's capital expenses, including interest on the Design/Builder's capital employed for the Work, provided that the Design/Builder is paid per the terms of this Agreement. 7.5 ADJUSTMENT IN THE DESIGN/BUILDER'S FEE Adjustment in the Design/Builders Fee shall be made as follows: 1 for changes in the Work as provided in Article 9, the Design/Builders Fee shall be 3.0 percent (3%) of the Cost of the Work associated with the change. .2 for delays in the Work caused by Owner and which are not the responsibility of the Design/Builder, Design/Builder will be allowed 3% Fee in addition to its increased expenses (as approved by Owner and Development Manager) except that such expenses shall not be duplicated as Fee and as a Cost of the Work; and .3 if the Design/Builder is placed in charge of managing an insured or uninsured loss on the Project at the express written request of the Owner, the Design/Builder shall be paid a Fee calculated on a fair and equitable basis as approved by Design/Builder, Owner and Development Manager, unless the loss is caused by the Design/Builder or its Subcontractors or the Architect. ARTICLE 8 COST OF THE WORK The Owner agrees to pay, solely and exclusively from lawfully available funds, the Design/Builder for the Cost of the Work as defined in this Article. This payment shall be in addition to the Design/Builder's Fee stipulated in Article 7. The Cost of the Work and the Design/Builder's Fee are all included in the GMP. 8.1 COST ITEMS FOR DESIGN PHASE SERVICES 8.1.1 Compensation for Design Phase Services as provided in Section 7.2. 8.2 COST ITEMS FOR CONSTRUCTION PHASE SERVICES 8.2.1 The hourly rate for labor in the direct employ of the Design/Builder in the performance of the Work as set forth in Exhibit A. 8.2.2 Salaries of Design/Builder's employees when stationed at the field office, in whatever capacity employed, employees engaged on the road expediting the production or transportation of material and equipment, and employees from the principal or branch office listed in Exhibit A, at the hourly rates provided for in Exhibit A, for such part of their time as devoted to the Work and may be adjusted annually as approved in writing by Owner and Development Manager; provided such adjustment shall not affect the FGMP. 8.2.3 Cost of all employee benefits and taxes, including, but not limited to, workers' compensation, unemployment compensation, Social Security, health, welfare, retirement, incentive compensation and other fringe benefits as required by law, labor agreements, or paid under the Design/Builders standard personnel policy, insofar as such costs are paid to employees of the Design/Builder who are included in the Cost of the Work under Sections 8.2.1 and 8.2.2. These costs (exclusive of holidays) are agreed to be considered Cost of the Work at the fixed hourly rates as shown in Exhibit A. 8.2.4 Reasonable transportation, travel, hotel and moving expenses of the Design/Builders personnel incurred in connection with the Work. 8.2.5 Cost of all materials, supplies and equipment incorporated in the Work, including costs of inspection, testing, transportation, storage and handling. 8.2.6 Payments made or payments due by the Design/Builder to Subcontractors for Work performed under this Agreement. 8.2.7 Fees and expenses for Design Phase Services procured by the Design/Builder in accordance with Section 7.3.3. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 19 8.2.8 Cost, including transportation and maintenance of all materials, supplies, equipment, temporary facilities and hand tools not owned by the workers that are used or consumed in the performance of the Work, less salvage value; and cost less salvage value on such items used, but not consumed that remain the property of the Design/Builder. 8.2.9 Rental charges of all necessary machinery and equipment, exclusive of hand tools owned by workers, used at the site of the Work, whether rented from the Design/Builder or others, including installation, repair and replacement, dismantling, removal, maintenance, transportation and delivery costs at rental charges consistent with those prevailing in the area. Equipment owned by Design/Builder may be used when and if available from Design/Builder's fleet. Design/Builder has provided Owner with a list of equipment (stipulated and agreed to in Exhibit B) it commonly uses from its fleet with its rental rates agreed to by Owner. 8.2.10 Cost of all insurance for the City Facilities and Parking Facilities Components that the Design/Builder is required to procure or deems necessary, in accordance with the rates set forth in Exhibit D. The Design/Builder, at the Design/Builder's option and discretion, may establish a Contractor Controlled Insurance Program (CCIP). If the Design/builder elects to establish a CCIP, it will submit the CCIP to the Owner and Development Manager for approval, which approval shall not be unreasonably withheld. The Design/Builder, as part of its normal business practice, has implemented a Subcontractor Default Insurance Program. Should the Design/Builder elect to enroll this Project in the SDI Program, the cost for the SDI Program shall be included in the Cost of the Work and reimbursed at a fixed rate of 1.4% of the value of Subcontract volume. The cost for the CCIP & all other required insurance per the Agreement other than Builder's Risk shall be included in the Cost of the Work and reimbursed at a fixed rate of 2.25% of the Contract Value, excluding the Design Fees. Cost for the SDI Program and CCIP shall be submitted and payable with the first progress billing. Design/Builder will be reimbursed for insurance associated with the Architect's Design Services at a fixed rate of 1.2% as set forth in Exhibit E. 8.2.11 Sales, use, gross receipts or other taxes, tariffs or duties related to the Work for which the Design/Builder is liable, except to the extent the Project is designated to be sales/use tax exempt. 8.2.12 Fees, licenses, tests, royalties, damages for infringement of patents and/or copyrights, including costs of defending related suits for which the Design/Builder is not responsible as set forth in Section 3.5, and deposits lost for causes other than the Design/Builder's negligence. 8.2.13 Losses, expenses or damages to the extent not compensated by insurance or otherwise, and the cost of corrective work during the Construction Phase and for a period of one year following the date of Substantial Completion. 8.2.14 All costs associated with establishing, equipping, operating, maintaining and demobilizing the field office. 8.2.15 Reproduction costs, photographs, cost of telegrams, facsimile transmissions, long distance telephone calls, data processing services, postage, express delivery charges, telephone service at the site and reasonable petty cash expenses at the field office, and at the Design/Builders branch office for the portion incidental to this Project to the extent it is included in the GMP. 8.2.16 All water, power and fuel costs necessary for the Work, unless specifically noted in the Design/Builders GMP. 8.2.17 Cost of removal of all non -hazardous substances, debris and waste materials. 8.2.18 Costs incurred due to an emergency affecting the safety of persons and/or property. 8.2.19 Trade Association fees, to the extent they are incurred based on the award of the Project to the Design/Builder. 8.2.20 Intentionally Omitted. 8.2.21 Intentionally Omitted. 8.2.22 Pre -construction expenses incurred by the Design/Builder in estimating and Value Engineering. These expenses shall not be duplicated if already paid as part of Design Phase Services. 8.2.23 Reasonable legal, mediation and arbitration fees and costs, other than those arising from disputes between the Owner or Development Manager and the Design/Builder, resulting from the Design/Builder's performance of the Work. 8.2.24 All other costs directly incurred in the performance of the Work and not included in the Design/Builders Fee as set forth in Article 7, which are reasonably inferable from the Contract Documents as necessary to produce the intended results, but only with the pre -approval of Owner, not to be unreasonably withheld. 8.2.25 All costs associated with administration of a wrap-up insurance program (CCIP), including expenditures for deductibles, where applicable, which will be paid as a Cost of the Work but will not increase the GMP. 8.2.26 Costs to correct defective or non -conforming work performed or supplied by Design/Builder or a Subcontractor or material supplier and not corrected by them, provided such defective or non -conforming work did not result from the gross negligence or willful misconduct of the Design/Builder and only to the extent that the cost of correcting the defective or non -conforming work is not recoverable by the Design/Builder from the Subcontractor or material supplier. If the total cost under this Section 8.2.26 were to exceed $50,000.00 in the aggregate on a cumulative basis for all components of the Project, such excess shall not be paid to Design/Builder without prior approval of Owner, Development Manager, and Hotel Owner. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 20 8.3 Development Manager or Owner has the right at any time and from time to time, during normal business hours, at the expense of Development Manager or Owner, as applicable, to audit any or all of Design/Builder's records with regard to any or all cost item(s) under this Article 8. Design/Builder agrees to make such records available to Development Manager at a convenient location at the Project in Baytown, Texas, upon 48 hours' notice from Development Manager or Owner, as the case may be. 8.4 Costs of Construction Materials Testing. Any costs of construction materials testing performed by independent testing firm(s) shall not be a Cost of Work and such firm(s) shall be engaged by Owner. Testing results and reports shall be made available to Design/Builder and Development Manager on a timely basis. In the event, any such construction materials testing results in a need for retesting or additional testing through no fault of Owner or Development Manager, the costs for such retesting or additional testing shall be paid timely by Design/Builder and not subject to any reimbursement by Owner. ARTICLE 9 CHANGES IN THE WORK Changes in the Work which are within the general scope of this Agreement may be accomplished by Change Order without invalidating this Agreement. 9.1 OWNER -DIRECTED CHANGE ORDERS A Change Order is a written instrument, issued after execution of this Agreement, signed by the Development Manager, Owner, Architect and Design/Builder stating their agreement upon a change and the adjustment, if any, in the GMP, the compensation for Design Phase Services, the Design/Builder's Fee and/or the date of Substantial Completion and/or Final Completion. Each adjustment in the GMP resulting from a Change Order shall clearly separate the amount attributable to compensation for Design Phase Services, other Cost of the Work and the Design/Builder's Fee. 9.2 DETERMINATION OF COST An increase or decrease in the GMP resulting from a change in the Work shall be determined by one or more of the following methods: .1 unit prices set forth in the Agreement or as subsequently agreed; .2 a mutually accepted, itemized lump sum; .3 costs determined as defined in Section 7.2 and Article 8 and a mutually acceptable Design/Builder's Fee as determined in Section 7.5.1; or .4 if an increase or decrease cannot be agreed to as set forth in Sections 9.2.1 through 9.2.3 and Owner issues a written order for the Design/Builder to proceed with the change, the cost of the change in the Work shall be determined by the reasonable expense and savings of the performance of the Work resulting from the change. If there is a net increase in the GMP, the Design/Builder's Fee shall be paid in the amount set forth in Section 7.5.1. In case of a net decrease in the GMP, the Design/Builder's Fee shall not be adjusted. The Design/Builder shall maintain a documented, itemized accounting evidencing the expenses and savings. 9.3 NO OBLIGATION TO PERFORM The Design/Builder shall not be obligated to perform changed Work until a Change Order has been executed by the Development Manager, Owner, Architect and Design/Builder, except as provided in Section 9.2.4.. The Design/Builder shall not be authorized to perform changes in the Work unless authorized in writing by the Development Manager and Owner. 9.4 ADJUSTMENT OF UNIT PRICES If a proposed Change Order alters original quantities to a degree that application of previously agreed to unit prices would be inequitable to either the Development Manager, Owner or the Design/Builder, the unit prices and the GMP may be equitably adjusted upon approval by Owner and Hotel Owner. 9.5 UNKNOWN CONDITIONS If in the performance of the Work the Design/Builder finds latent, concealed or subsurface physical conditions which differ from the conditions the Design/Builder reasonably anticipated, or if the soil associated with the Site is found to be unsuitable for reuse or structurally unsound and such issue could not reasonably have been anticipated, or if physical conditions are different from those normally encountered and generally recognized as inherent in the kind of work provided for in this Agreement, then the GMP, compensation for Design Phase Services, the Design/Builder's Fee, and the date of Substantial Completion and Final Completion shall, upon approval by Owner, be equitably adjusted by Change Order within a reasonable time after the conditions are first observed. 9.6 CLAIMS FOR ADDITIONAL COST OR TIME For any claim for an increase in the GMP, compensation for Design Phase Services, the Design/Builder's Fee and/or an extension in the SC Date, the Design/Builder shall give the Development Manager, Owner and Hotel Owner written notice of the claim within twenty-one (21) Days after the occurrence giving rise to the claim or within twenty-one (21) Days after the Design/Builder first recognizes the condition giving rise to the claim, whichever is later. Except in an emergency, notice shall be given before proceeding with the Work. Claims for design and estimating costs incurred in connection with possible changes requested by the Development Manager or Owner, but which do not proceed, shall be made within twenty-one (21) Days after the decision is made not to proceed. If Owner were to approve the expense or change in the GMP, the compensation for Design Phase Services, the Design/Builder's Fee, or the SC Date, such expense or change will be authorized only by Change Order executed by Owner and Development Manager. Hotel Owner shall be copied on all notices transmitted under this Section 9.6. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 21 9.7 EMERGENCIES In any emergency affecting the safety of persons and/or property, the Design/Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the GMP, compensation for Design Phase Services, the Design/Builder's Fee and/or extension of the SC Date on account of emergency work shall be determined as provided in this Article. ARTICLE 10 PAYMENT FOR CONSTRUCTION PHASE SERVICES 10.1 PROGRESS PAYMENTS 10.1 .1 PROGRESS PAYMENTS. Design/Builder shall submit, as a part of the Final GMP Amendment and the normal progress payments, a schedule of values for all of the Work, which will subdivide the Work into its respective parts and will include values for all items comprising the Work. The schedule of values shall serve as the basis for monthly progress payments made to Design/Builder throughout the Project. On or about the 25th day of each month, the Design/Builder shall review with the Development Manager's Representative and Owner's Representative a pencil draw of the proposed application for payment for costs incurred during that month and projected through the end of that month. Any invoices for costs which are not included in such pencil draw will be held over until the next monthly pay period. The amount agreed to at the pencil draw review meeting shall be processed and submitted as an approved Application for Payment on or about the first Day of the following calendar month. The Development Manager, Owner and Hotel Owner will review the monthly pay applications; however, such review shall not delay payment to the Design/Builder. 10.1.2 APPLICATIONS FOR PAYMENT. On or about the first Day of each month, the Design/Builder shall submit to the Development Manager an Application for Payment as outlined herewith, consisting of an estimate of the Cost of the Work performed during the previous month, (including the cost of material stored on the site, or at other approved locations, on terms and conditions acceptable to Development Manager, including all appropriate paperwork as required and approved by the Development Manager and Owner's Representative), less all previous payments and Subcontractor reserves withheld. Such Subcontractor reserves will be based on retainage of 5%; and the balance shall be paid when their work achieves Final Completion, subject to receipt of final lien waivers and any other document reasonably required for final payment. In any circumstance where Design/Builder performs direct work (work that would otherwise be done by a Subcontractor) the retainage provisions of the preceding sentence shall apply relative to such work performed by the Design/Builder. Prior to submission of the next Application for Payment, the Design/Builder shall fumish to the Development Manager and Owner's Representative a staggered waiver accounting for the disbursement of funds received under the previous Application. The extent of such statement shall be as agreed upon among the Development Manager, Owner's Representative and Design/Builder. For the purpose of this Agreement, the definition of the Architect is not that of a Subcontractor. The Development Manager shall seek approval of the Application for Payment by the Owner, in accordance with this Sections 10.1.3, 10.1.4, and 10.1.5. 10.1.3 PAYMENT TIME FRAMES. Commencing with the first Application of Payment, if an Application for Payment is received by the Development Manager and Owner's Representative after the first Day of the month, Owner shall make payment on such Application for Payment within 30 Days after receipt of such monthly Application for Payment and all other documents required for payment as described herein along with verification by the Development Manager and Owner's Representative that such application matches the agreed upon pencil draw amounts. All funds will be paid directly via electronic wire transfer to the Design/Builder, the appropriate amounts for which Application for Payment is made, less amounts previously paid by the Owner's Construction Fund and less the applicable retainage. Any Application for Payment received prior to the first Day of the month shall be treated as if it had been submitted on the first Day of the month and shall not be obligated to be paid any earlier than the thirtieth (30th) day of the month. 10.1.4 If the Owner fails to pay the Design/Builder at the time payment of any amount becomes due, then the Design/Builder, after serving written notice of the amount due and of the possibility that the Work being stopped if payment is not received within ten (10) Days after receipt of the notice by the Development Manager, Hotel Owner, and Owner, may stop the Work until payment of the amount owing has been received. If the Design/Builder stops the Work as provided in this section, a Change Order may be issued to increase the GMP for remobilization costs, if any, incurred by the Design/Builder as a result of having to stop the Work and restart the Work. In addition, the Design/Builder shall be entitled to an extension of the Contract Time equal to any delays that are incurred in the performance of the Work from the date of the stoppage of Work by the Design/Builder to the date that payment is received by the Design/Builder. 10.1.5 Payments due but unpaid shall bear interest from the 315t day after the later of (i) the date the Owner received an invoice for the Work or (ii) the date the Work progressed to the extent described in the draw schedule in accordance with Texas Government Code Section 2251. 10. 1.6 The Design/Builder warrants and guarantees that title to all Work, materials and equipment covered by an Application for Payment, whether incorporated in the Project or not, will pass to the Owner upon receipt of such payment by the Design/Builder free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to as "liens." 10.1.7 The Development Manager's and/or Owner's progress payment, occupancy or use of the Project, whether in whole or in part, shall not be deemed an acceptance of any Work not conforming to the requirements of the Contract Documents. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 22 10.1.8 Upon Substantial Completion and after delivery of all documents listed in Section 10.1.9 herein to the Owner, the Owner shall pay the Design/Builder the unpaid balance of the Cost of the Work including retainage, compensation for Design Phase Services and the Design/Builder's Fee, less a sum equal to two hundred percent (200%) of the Design/Builder's estimated cost of completing any unfinished items, as agreed to among the Development Manager, Owner's Representative and Design/Builder as to extent and time for completion. The Development Manager and Owner thereafter shall pay the Design/Builder monthly the amount retained for unfinished items as each item is completed. 10.1.9 The Design/Builder shall provide to the Owner the following documents prior to Final Completion, as a condition precedent to final payment: .1 an affidavit in substantial accordance with Tex. Prop. Code Section 53.085 that (i) the improvements have been completed in accordance with the Contract Documents except for punch list items; (ii) payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered have been paid or will be paid out of funds advanced under the Final Application for Payment; and (iii) with respect to the Application for Final Payment or other Applications for Payment for which the Design/Builder has not received full payment, such indebtedness will be paid only, as a condition precedent, promptly after the Design/Builder's actual receipt of full payment from the Owner; .2 a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 Days' prior written notice has been given to the Owner; .3 a written statement that the Design/Builder knows of no reason that the insurance will not be renewable to cover the period required by the Contract Documents; .4 consent of surety to final payment; .5 Waivers and Release of Lien on Final Payment documents from Design/Builder, Architect, and all Subcontractors and suppliers furnishing materials, equipment or labor on the Project, in such form as required Texas law; .6 all governmental or other approvals and permits required for the beneficial use and occupancy of the Project, including a Certificate of Occupancy, have been received; .7 one set of As -Built Documents, in form and substance as required by Owner, showing all utility lines, piping, ducts and similar work installed or altered by Design/Builder; .8 all Warranties as required on specific products or portions of the Work; .9 operations and maintenance manuals, records, instructions and data; .10 a written statement that all commissioning and training on identified equipment has been scheduled and has occurred; .11 keys, access cards, and any other items for access to and security of the premises, as well as spare parts, overages, and maintenance materials; and .12 if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Work, to the extent and in such form as may be designated by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Design/Builder may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. In addition, Design/Builder shall execute an Affidavit of Completion in accordance with the laws of the State of Texas signifying that the Project is complete. Within thirty (30) days of final payment from Owner, the Design/Builder shall provide an unconditional waiver and release from Design/Builder, Architect, and all Subcontractors and suppliers furnishing materials, equipment or labor on the Project, in a form satisfactory to Owner. 10.1.10 The Design/Builder shall assist the Owner, Development Manager and their respective Separate Contractors in obtaining the Final Certificate of Occupancy. 10.1.11 If Design/Builder, at any time during the term of this Agreement, incurs a "debt," as the word is defined in section 2-662 of the Code of Ordinances of the City of Baytown, it shall immediately notify the Owner's Director of Finance in writing. If the Owner's Director of Finance becomes aware that the Design/Builder has incurred a debt, the Owner's Director of Finance shall immediately notify the Design/Builder in writing. if the Design/Builder does not pay the debt within 30 days of either such notification, the Owner's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to the Design/Builder under this Agreement, and the Design/Builder waives any recourse therefor. 10.2 FINAL PAYMENT 10.2.1 Final payment, consisting of the unpaid balance of the Cost of the Work, compensation for Design Phase Services and the Design/Builder's Fee shall be due and payable when the Project has reached Final Completion and all documents required under Section 10.1 have been received. Before issuance of final payment, the Development Manager and Owner may request satisfactory evidence that all payrolls, materials bills and other indebtedness connected with the Work have been paid or otherwise satisfied and all other Owner requirements as a condition to Final Payment have been met or have occurred. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 23 10.2.2 In making final payment the Development Manager and Owner waive all claims except for: .1 outstanding liens or liens that could be filed within the time periods provided under Texas law; .2 improper workmanship or defective materials as provided in Section 3.7.1 of this Agreement; .3 Work not in conformance with the Contract Documents; .4 terms of any special warranties required by the Contract Documents; and .5 Claims made in writing but remain unsettled. 10.2.3 In accepting final payment, the Design/Builder waives all claims except those previously made in writing and which remain unsettled. ARTICLE 11 INDEMNITY, INSURANCE AND WAIVER OF SUBROGATION 11.1 INDEMNITY 11.1.1 INDEMNITY - GENERAL. DESIGN/BUILDER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE OWNER AND DEVELOPMENT MANAGER AND THEIR OFFICERS, AGENTS, EMPLOYEES, APPOINTEES AND VOLUNTEERS ("INDEMNITEES") FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, ACCOUNTANTS, CONSULTANTS AND OTHER EXPERTS, LITIGATION AND COURT COSTS) OF ANY CONCEIVABLE NATURE, KIND OR CHARACTER UNDER ANY CONCEIVABLE THEORY, FOR OR RELATING TO PERSONAL INJURY (INCLUDING DEATH) PROPERTY DAMAGE, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, ARISING OUT OF OR RESULTING FROM DESIGN/BUILDER'S BREACH OF THIS AGREEMENT, OR BY ANY NEGLIGENT, WILLFUL MISCONDUCT, OR BY ANY NEGLIGENT, WILLFUL OR STRICTLY LIABLE ACT OR OMISSION OF DESIGN/BUILDER, ITS OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS AND INCLUDING THE ARCHITECT (COLLECTIVELY "DESIGN/BUILDER'S PARTIES", IN THE PERFORMANCE OF THIS AGREEMENT. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, DESIGN/BUILDER, DEVELOPMENT MANAGER, AND OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY DESIGN/BUILDER TO INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF DESIGN/BUILDER'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS DESIGN/BUILDER'S PARTIES' INTENTIONAL TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT, IN WHOLE OR IN PART, IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF ANY PERSON OTHER THAN DESIGN/BUILDER'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER FROM WHICH THE OWNER IS INDEMNIFIED, DESIGN/BUILDER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT. 11.1.2.INDMENITY - EMPLOYEE INJURY CLAIMS. IN ADDITION TO THE INDEMNIFICATION PROVIDED IN SUB SECTION 11.1.1. ABOVE, DESIGN/BUILDER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS OWNER AND ALL INDEMNITEES FROM AND AGAINST ANY THIRD PARTY CLAIM, DAMAGE, LOSS, OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES AND Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 24 COSTS), ARISING OUT OF, RESULTING FROM OR ATTRIBUTABLE TO ANY CLAIM OF BODILY INJURY, SICKNESS, DISEASE OR DEATH OF ANY EMPLOYEE OF DESIGN/BUILDER, ARCHITECT, ANY SUBCONTRACTOR OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF ITS SUBCONTRACTORS, BROUGHT BY SUCH INJURED EMPLOYEE OR THE EMPLOYEE'S WORKERS' COMPENSATION INSURANCE CARRIER HEREINAFTER REFERRED TO AS AN "EMPLOYEE INJURY CLAIM"), EVEN TO THE EXTENT SUCH CLAIM, DAMAGE, LOSS OR EXPENSE IS ALLEGED TO BE CAUSED, IN PART, BY THE NEGLIGENCE OF OWNER OR ANY INDEMNITEE. IT BEING THE EXPRESSED INTENT OF THE OWNER AND THE DESIGN/BUILDER THAT, IN SUCH EVENT, THE DESIGN/BUILDER IS TO INDEMNIFY, HOLD HARMLESS AND DEFEND, THE OWNER AND INDEMNITEES FROM THE CONSEQUENCES OF THEIR OWN CONCURRENT NEGLIGENCE BUT SHALL NOT BE OBLIGATED TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE OWNER AND THE INDEMNITEES TO THE EXTENT SUCH CLAIM, DAMAGE LOSS OR EXPENSE IS DUE TO THEIR SOLE NEGLIGENCE. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER FROM WHICH THE OWNER IS INDEMNIFIED, DESIGN/BUILDER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE OWNER, THE DESIGN/BUILDER AND THE DESIGN/BUILDER'S INSURERS. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT. 11.1.3 The provisions of this Section are solely for the benefit of the parties hereto and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity. Design/Builder further agrees to defend, at its own expense, and on behalf of Owner and the other Indemnitees and in the name of Owner and the other Indemnitees, any claim or litigation brought in connection with any such injury, death, or damage. 11.1.4 The Development Manager shall cause its Separate Contractors, if any, to agree to indemnify the Design/Builder or any Subcontractors or anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable and hold them harmless from all claims for bodily injury and property damage, other than property insured under Section 11.5, that may arise from that Separate Contractor's operations. Such provisions shall be in a form reasonably satisfactory to the Design/Builder. 11.1.5 IMMUNITY RETAINED. The Design/Builder, Development Manager and Owner hereby acknowledge and agree that Owner is entering this Agreement pursuant to its governmental function and that nothing contained in this Agreement shall be construed as constituting a waiver of the Owner's governmental immunity from suit or liability, which is expressly reserved to the extent allowed by law. 11.1.6 LIMITED WAIVER OF IMMUNITY. Notwithstanding anything to the contrary herein, the Design/Builder, Development Manager and Owner hereby acknowledge and agree that to the extent this Agreement is subject to the provisions of Subchapter I of Chapter 271, TEXAS LOCAL GOVERNMENT CODE, as amended, the Owner's immunity from suit is waived only as set forth in Subchapter I of Chapter 271, TEXAS LOCAL GOVERNMENT CODE. 11.1.7 The obligations contained in this Section 11.1 shall survive the expiration, completion, abandonment and/or termination of this Agreement and Final Completion of the Project and any other services to be provided pursuant to this Agreement but in no event shall survive beyond the term of the applicable Statute of Repose. 11.2 DESIGN/BUILDER'S LIABILITY INSURANCE 11 .2.1 The Design/Builder shall obtain and maintain insurance coverage for the following claims which may arise out of the performance of this Agreement, whether resulting from the Design/Builder's operations or by the operations of the Architect or any Subcontractor, Sub -Subcontractor, or anyone in the employ of any of them, or by an individual or entity for whose acts they may be liable: 1 workers' compensation, disability and other employee benefit claims under acts applicable to the Work; .2 under applicable employers' liability law, bodily injury, occupational sickness, disease or death claims of the Design/Builder's employees; .3 bodily injury, sickness, disease or death claims for damages to persons not employed by the Design/Builder; Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 25 .4 personal injury liability claims for damages directly or indirectly related to the person's employment by the Design/Builder or for damages to any other person; .5 damage to or destruction of tangible property, including resulting loss of use, claims for property other than the Work itself and other property insured under Section 11.5; .6 bodily injury, death or property damage claims resulting from motor vehicle liability in the use, maintenance or ownership of any motor vehicle; and 7 contractual liability claims involving the Design/Builder's obligations under Section 11.1.1. The Design/Builder, to the extent allowed by law, shall name the Owner and Development Manager and their respective officers, directors, members, shareholders, agents and representatives as named insureds on the CCIP or as additional insureds on Design/Builder's liability policies if a CCIP is not provided, in accordance with Exhibit D. 11.2.2 The Design/Builder's Insurance as required by Section 11.2.1 shall be written in accordance with the requirements of Exhibit D attached hereto and incorporated herein by reference. Design/Builder shall use a wrap-up insurance program (CCIP) to provide the necessary coverage in accordance with the requirements of Exhibit D attached hereto and incorporated herein by reference. Design/Builder shall comply with the requirements of Tex. Ins. Code §§151.003 — 151.004 in providing information concerning the CCIP. 11.2.3 The insurance policies will state that the insurance carrier will endeavor to provide written notice of cancellation or non -renewal to the Owner and Development Manager at least thirty (30) Days in advance. Certificates of insurance showing required coverage to be in force shall be filed with the Development Manager and Owner prior to commencement of the Work. If there are any subsequent changes to any insurance policies after commencement of the Work, Design/Builder shall promptly notify Owner and Development Manager and issue updated certificates as applicable. However, new limits cannot be lower than what is required in this Agreement for Design/Builder. 11.2.4 Products and Completed Operations insurance shall be maintained for a period of 10 (ten) year(s) after the date of Substantial Completion of the Project. 11.3 PROFESSIONAL LIABILITY INSURANCE The Architect and Design/Builder shall each be responsible to obtain professional liability insurance for claims arising from the negligent performance of professional services under this Agreement and the design agreement between Architect and Design/Builder. Policies shall both be written for not less than $5,000,000 per claim and $5,000,000 in the aggregate with a deductible or self-insured retention not to exceed $500,000.00 without Owner's approval. These requirements shall be continued in effect for two (2) year(s) after the date of Substantial Completion. If the Architect retains consultants for a portion of the design, their professional liability insurance coverage, including deductible/retention amounts, shall be as set forth above. 11.4 DEVELOPMENT MANAGER'S LIABILITY INSURANCE The Development Manager shall be responsible for obtaining and maintaining its general liability and pollution legal liability insurance in amounts to support its obligations under this Agreement, as approved by Owner. The Development Manager represents and covenants that it will require each of its Separate Contractors to assume responsibility for all liabilities, including errors and omissions, relating to any rework, modifications, upgrades and/or maintenance of the City Facilities Component and Parking Facilities Component and associated FF&E by such Separate Contractors and Separate Contractors shall indemnify and hold harmless the Design/Builder and its Subcontractors and Consultants at all tiers for any such claims or liabilities. 11.5 INSURANCE TO PROTECT PROJECT 11.5.1 As defined in Exhibit D, the Design/Builder shall obtain and maintain Builder's Risk insurance in a form acceptable to the Development Manager and Owner upon the entire Project, and including the Hotel Component, for the full cost of replacement at the time of any loss during the construction phase. This insurance shall include Design Builder as the first named insured and the Owner, Development Manager, Bond Trustee, Design/Builder, Subcontractors and Sub -Subcontractors at all tiers as additional named insureds. This insurance shall insure against loss from the perils of fire and extended coverage, and shall include "all risk" insurance for physical loss or damage including without duplication of coverage at least: theft, vandalism, malicious mischief, transit, collapse, falsework, temporary buildings, debris removal, flood, earthquake, high wind, water damage, tornadoes, testing, and damage resulting from defective design, workmanship or material. The Design/Builder shall increase limits of coverage, if necessary, to reflect estimated replacement cost. The Design/Builder shall be responsible for any co-insurance penalties or deductibles resulting from Design/Builder's negligence as a Cost of the Work in the GMP but such costs shall not increase the GMP. For clarity, the Design/Builder will not be responsible for all other deductibles required by the Builder's Risk insurance policy procured, including but not limited to flood, named windstorm and loss of use (if applicable). The Owner, at the Owner's option and expense, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. 11.5.2 If the Development Manager, Owner or other Separate Contractors (Operator) occupy or use a portion of the Project prior to its Substantial Completion, such occupancy or use shall not commence prior to a time mutually agreed to by the Development Manager, Owner and the Design/Builder and to which the insurance company or companies providing the property insurance have consented by endorsing the policy or Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 26 policies. This insurance shall not be cancelled or lapsed on account of partial occupancy. Consent of the Design/Builder to such early occupancy or use shall not be unreasonably withheld. 11 .5.3 Design/Builder shall purchase and maintain insurance to protect the Owner, Development Manager, Design/Builder, Architect, Subcontractors and Sub -Subcontractors against loss of use of Development Manager's or Owner's property due to delayed completion or caused by those perils insured pursuant to Section 11.5. Such policy will provide coverage for expediting expenses of materials, continuing overhead of the Design/Builder, Subcontractors and Sub -Subcontractors, necessary labor expense including overtime, and other determined exposures, including damages for delays caused by such insurable perils. Exposures of the Design/Builder, Architect, Subcontractors and Sub -Subcontractors, shall be determined by mutual agreement with separate limits of coverage fixed for each item. 11 .5.4 Upon the Development Manager's or Owner's request, the Design/Builder shall provide a copy of all policies before an exposure to loss may occur. Copies of any subsequent endorsements shall be furnished to the Development Manager and Owner. The Development Manager and Owner shall be given thirty (30) Days' notice of cancellation, non -renewal, or any endorsements restricting or reducing coverage. 11.5.5 At Substantial Completion of the Project, the Owner shall provide property insurance for the City Facilities Component and Parking Facilities Component in a form and amount acceptable to the Design/Builder, to replace the Design/Builder's Builders' Risk Insurance provided as defined in Section 11.5. 11.6 PROPERTY INSURANCE LOSS ADJUSTMENT 11.6.1 Any insured loss shall be adjusted with the Owner, Development Manager and the Design/Builder and made payable to the Owner, Development Manager and Design/Builder for the insureds, as their interests may appear, subject to any applicable mortgagee clause. 11.6.2 Unless the Development Manager, the Owner and the Design/Builder otherwise agree in writing, upon the occurrence of an insured loss, monies received will be deposited in a separate account and shall be distributed in accordance with the agreement of the parties in interest, including the Bond Trustee or in the absence of such agreement, in accordance with any judgment issued by a court of competent jurisdiction. If the parties are unable to agree between themselves on the settlement of the loss, such dispute shall also be submitted for resolution pursuant to Article 13. 11.7 WAIVER OF SUBROGATION by risks covered by insurance provided in Section 11.5 to the extent of actual recovery of any insurance proceeds of such insurance except such rights as they may have to the proceeds of such insurance held by the Owner, Development Manager and Design/Builder. The Design/Builder and Development Manager shall require similar waivers (as appropriate) from the Architect and all Subcontractors, Sub -Subcontractors, Consultants, and Separate Contractors and shall require each of them to include similar waivers in their respective contracts, Subcontracts, Sub -Subcontracts and consulting agreements. The Development Manager shall also provide similar waivers in its Agreement with the Owner and any Separate Contractors. 11.7.2 Intentionally Omitted 11.7.3 If the policies of insurance referred to in this Section require an endorsement to provide for continued coverage where there is a waiver of subrogation, the providers of such policies will cause them to be so endorsed. 11.7.4 The Design/Builder assumes full responsibility for the work to be performed and releases, relinquishes, and discharges the Owner, its officers, agents and employees from all claims, demands and causes of action of every kind and character for any injury to, including, but not limited to, death of any person (whether third persons, the Design/Builder, or employees of either of the parties). This release includes the cost of defense of any claim and any loss of or damage to property (whether property of the parties or of third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Design/Builder's work to be performed under this Agreement whether or not said claims, demands, and causes of action are covered in whole or in part by insurance. ARTICLE 12 TERMINATION OF THE AGREEMENT AND DEVELOPMENT MANAGER'S RIGHT TO PERFORM DESIGN/BUILDER'S RESPONSIBILITIES 12.1 TERMINATION BY THE DESIGN/BUILDER 12.1.1 Upon fifteen (15) Days' written notice to the Development Manager, Owner and Hotel Owner, the Design/Builder may terminate this Agreement for any of the following reasons: .1 if the Work has been stopped for a thirty (30) Day period, which period shall be extended by a maximum of 15 Days if the Owner is pursuing relief from such stoppage, a. under court order or order of other governmental 11.7.1 The Development Manager, and Design/Builder waive authorities having jurisdiction, unless caused by the all rights against each other and Owner, the Architect, and any Design/Builder; or of their respective employees, agents, consultants, Subcontractors and Sub -Subcontractors for damages caused Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 27 b. as a result of the declaration of a national emergency or other governmental act during which, through no act or fault of the Design/Builder, materials are not available; or c. because of the Development Manager's or Owner's failure to pay the Design/Builder in accordance with this Agreement; .2 if the Work is suspended by the Development Manager or Owner for sixty (60) Days; .3 if the Development Manager, Owner, or any Separate Contractor materially delay the Design/Builder in the performance of the Work; .4 if the Development Manager or Owner otherwise materially adversely breach this Agreement; or .5 if the Owner fails to furnish reasonable evidence that sufficient funds are available and committed for the entire cost of the Project in accordance with Section 4.1.3 of this Agreement. 12.1.2 With the exception of termination occurring under 12.1.1.1(a) or (b), upon termination by the Design/Builder in accordance with Section 12.1.1, the Design/Builder shall be entitled to recover payment for all Work executed and for any proven loss, cost or expense, including fee earned under this Agreement in connection with the Work, plus all demobilization costs and reasonable damages other than incidental or consequential damages. In addition, the Design/Builder shall be paid an amount calculated as set forth either in Sections 12.3.1 or 12.3.2, depending on when the termination occurs, plus those costs defined in Sections 12.3.3 and 12.3.4. 12.2 DEVELOPMENT MANAGER'S/OWNER'S RIGHT TO PERFORM DESIGN/BUILDER'S OBLIGATIONS AND TERMINATION BY THE DEVELOPMENT MANAGER AND OWNER FOR CAUSE 12.2.1 If the Design/Builder fails to perform any of its obligations under this Agreement, the Development Manager or Owner may, after seven (7) Days' written notice, during which period the Design/Builder fails to perform such obligation, undertake to perform or commence to perform such obligation. The GMP shall be reduced by the cost to the Development Manager or Owner of performing such obligations. 12.2.2 Upon fifteen (15) Days' written notice to the Design/Builder and the Design/Builder's surety, if any, and provided the Design/Builder does not cure or commence to cure such condition or non-performance within such fifteen (15) day period, the Development Manager or Owner may terminate this Agreement for any of the following reasons: if the Design/Builder utilizes improper materials and/or inadequately skilled workers; or .2 if the Design/Builder does not make proper payment to the Architect or to laborers, material suppliers or Subcontractors; or .3 if the Design/Builder fails to abide by the orders, regulations, rules, ordinances or laws of governmental authorities having jurisdiction; or .4 if the Design/Builder otherwise materially breaches this Agreement; If the Design/Builder fails to cure or if the Design/Builder has not commenced a continuing path of cure within the fifteen (15) Days' written notice by the Development Manager and Owner, without prejudice to any other right or remedy, Owner may take possession of the Site and complete the Work utilizing any reasonable means. In this event, the Design/Builder shall not have a right to further payment until the Project is completed. If the costs of finishing the Work and other actual damages incurred by the Owner, not expressly waived, exceed the unpaid balance of the Guaranteed Maximum Price, the Design/Builder shall pay the difference to the Owner promptly upon demand from Owner. 12.2.3 If the Design/Builder files a petition under the Bankruptcy Code, and/or if an involuntary petition is filed against the Design/Builder, this Agreement shall terminate if the Design/Builder or the Design/Builder's trustee rejects the Agreement or such involuntary or voluntary petition is not dismissed within 60 Days of the filing or, if there has been a default, the Design/Builder is unable to give adequate assurance that the Design/Builder will perform as required by this Agreement or otherwise is unable to comply with the requirements for assuming this Agreement under the applicable provisions of the Bankruptcy Code. 12.2.4 In the event the Development Manager or Owner exercises their rights under Sections 12.2.1 or 12.2.2, upon the request of the Design/Builder the Development Manager or Owner shall provide a detailed accounting of the cost incurred by the Development Manager and/or Owner. 12.3 TERMINATION BY OWNER WITHOUT CAUSE OR FOR SPECIAL CIRCUMSTANCES If the Owner terminates this Agreement (i) other than as set forth in Section 12.2, or (ii) pursuant to Section 12.5 the Owner shall pay the Design/Builder for all Work executed and for any proven loss, cost or expense in connection with the Work, plus all demobilization costs, to the extent of lawfully available funds. In addition, the Design/Builder shall be paid an amount calculated as set forth below: .1 if the Owner so terminates this Agreement prior to commencement of the Construction Phase, whether or not financing is obtained, the Design/Builder shall be paid from funds obtained by the Owner from other sources, the Design/Builder's and Architect's Design Phase compensation as set forth in Section 7.2.2. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 28 .2 if the Owner terminates this Agreement after commencement of the Construction Phase, the Design/Builder shall be paid the Design/Builder's and Architect's Design and Construction Phase Compensation as set forth in Section 7.2.2 and that amount of the Design/Builder's Fee earned as of the date of termination. .3 in either event, all payments as provided in Section 7.1 shall be credited to the Owner at the time of termination. .4 the Owner shall also pay to the Design/Builder fair compensation, either by purchase or rental at the election of the Owner, for any equipment retained. The Owner shall assume and become liable for obligations, commitments and unsettled claims that the Design/Builder has previously undertaken or incurred in good faith in connection with the Work or as a result of the termination of this Agreement. As a condition of receiving the payments provided under this Article 12, the Design/Builder shall cooperate with the Owner by taking all steps necessary to accomplish the legal assignment of the Design/Builder's rights and benefits to the Owner, including the execution and delivery of required papers. 12.4 SUSPENSION BY OWNER FOR CONVENIENCE 12.4.1 The Owner may order the Design/Builder in writing to suspend, delay or interrupt all or any part of the Work without cause, for such period of time as the Owner may determine to be appropriate for its convenience; however, the dates for Substantial Completion and Final Completion shall be adjusted as appropriate if approved by Owner, Development Manager, and Hotel Owner. 12.4.2 Adjustments caused by suspension, delay or interruption as set forth in Section 12.4.1 shall be basis for increases in the GMP, compensation for Design Phase Services, the Design/Builder's Fee and/or the dates of Substantial Completion and Final Completion as and when appropriate pursuant to this Agreement. No adjustment shall be made if the Design/Builder is or otherwise would have been responsible for the suspension, delay or interruption of the Work, or if another provision of this Agreement is applied to render an equitable adjustment. 12.4.3 NOTICE TO HOTEL OWNER The Hotel Owner shall be copied on all notices transmitted under this Article 12. 12.5 OWNER'S RIGHT TO TERMINATE FOR SPECIAL CIRCUMSTANCES 12.5.1 Upon fifteen (15) Days' written notice to the Design/Builder and the Design/Builder's surety, if any, the Owner may terminate this Agreement for any of the following reasons: if the Final GMP proposed by Design/Builder in accordance with Section 3.2 is rejected by Owner; or 2 if the Owner has terminated the City Facilities and Parking Facilities Design/Build Agreement; or .3 if the Owner fails to make the City Contribution or Owner fails to issue the Hotel Construction Phase Bonds (as defined in the Master Development Agreement). ARTICLE 13 DISPUTE RESOLUTION 13.1 INITIAL DISPUTE RESOLUTION If a dispute arises out of or relates to this Agreement or its breach, the parties shall endeavor to settle the dispute first through direct discussions. If the dispute cannot be settled through direct discussions, the parties may endeavor to settle the dispute by mediation under the Construction Industry Mediation Rules of the American Arbitration Association before recourse to litigation. The location of the mediation if any shall be in Harris County, Texas unless the parties mutually agree otherwise. Once one party files a request for mediation with the other contracting party and with the American Arbitration Association, the parties agree to endeavor to conclude such mediation within sixty (60) Days of the filing of the request. 13.2 Intentionally Omitted 13.3 Intentionally Omitted 13.4 Intentionally Omitted 13.5 WORK CONTINUANCE AND PAYMENT Unless otherwise agreed in writing, or unless there are not available funds to compensate Design/Builder, the Design/Builder shall continue the Work and maintain the approved schedules during any mediation proceedings. If the Design/Builder continues to perform, the Development Manager and Owner shall continue to make payments in accordance with this Agreement. Design/Builder agrees that if, at any time, the Owner or the Hotel Owner, pursuant to their respective rights under the Related Agreements, elect to undertake or cause the completion of construction of the Work on any portion of the Project without the Development Manager and gives Design/Builder written notice of such election; then, so long as the Design/Builder has received, receives and continues to receive the compensation called for under this Agreement, Design/Builder shall continue to perform its obligations under (i) this Agreement and in accordance with the terms hereof or (ii) under a new contract, the terms and provisions of which are substantially the same as this Agreement. Design/Builder's contract with the Architect will include a provision comparable to this Section 13.5. 13.6 MULTIPARTY PROCEEDING The parties agree that all parties necessary to resolve a claim shall be parties to the Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 29 same mediation proceeding. Appropriate provisions shall be included in all other contracts relating to the Work to provide for the consolidation of mediations. 13.8 COST OF DISPUTE RESOLUTION The parties shall bear their own costs of attorney's fees and other expenses incurred in any dispute resolution process unless a court awards to a prevailing party. ARTICLE 14 MISCELLANEOUS PROVISIONS 14.1 ASSIGNMENT Design/Builder shall not assign its interest in this Agreement without the written consent of Owner or Development Manager. Development Manager shall not assign any interest in this Agreement without the written consent of Owner. The Hotel Owner shall be entitled to pledge and assign all of its right title and interest herein to the Bond Trustee pursuant to the Bond Indenture, with the exception of certain "Reserved Rights" as defined therein; and the Development Manager and the Design/Builder each acknowledge and consent to such assignment. 14.2 GOVERNING LAWNENUE This Agreement shall be governed by the laws in the State of Texas. Venue for any legal proceeding shall be proper in the state or federal courts of competent jurisdiction located in Hams County, Texas. By executing and delivering this Agreement, each party hereto irrevocably: (i) accepts generally and unconditionally the exclusive jurisdiction and venue of such courts; (ii) waives any defense of forum non conveniens; and (iii) agrees not to seek removal of such proceedings to any court or forum other than as specified above. The foregoing shall not be deemed or construed to constitute a waiver by the Owner of its immunities or any prior notice or procedural requirements applicable to actions or claims against or involving Owner. 14.3 SEVERABILITY The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision. 14.4 NO WAIVER OF PERFORMANCE The failure of any party to insist, in any one or more instances, on the performance of any of the terms, covenants or conditions of this Agreement, or to exercise of its rights, shall not be construed as a waiver or relinquishment of such term, covenant, condition or right with respect to further performance. 14.5 TITLES The title given to the Articles of this Agreement are for ease of reference only and shall not be relied upon or cited for any other purpose. 14.6 NO JOINT VENTURE It is acknowledged and agreed by and among the Parties that the terms hereof are not intended to, and shall not be deemed to, create any partnership or joint venture among the Parties. The past, present and future officers, elected officials, employees and agents of the Owner do not assume any responsibilities or liabilities to any third party in connection with the development, design, construction or operation of any of the improvements contemplated by this Agreement. 14.7 OWNER'S SECURITY Design/Builder hereby agrees to the assignment of this Agreement to the Owner as security to the Owner for Development Manager's and Hotel Owner's performance under the Related Agreements. Design/Builder further agrees to perform for the City under this Agreement, at the election of the Owner, if the Ground Lease were terminated for any reason and to permit the Owner to use any plans and specifications to which Owner is then entitled pursuant to this Agreement, provided that the Owner assumes the obligations of Development Manager and Hotel Owner under this Agreement and that the Design/Builder has received, receives and continues to receive the compensation called for under this Agreement. Design/Builder will include a provision comparable to this Section 14.7 in its Contract with the Architect. 14.8 ENVIRONMENTAL COMMITMENT AND COMPLIANCE Design/Builder is knowledgeable of the many laws, ordinances, and regulations, whether local, state or federal, relating to the protection of the environment as they relate to the Work which Design/Builder is performing under this Agreement. Design/Builder will comply with all Applicable Laws and ensure all requirements imposed by these laws are met. Development Manager and Owner shall provide all the environmental reports, surveys and test results in its possession prior to Design/Builder's commencement of the Work. All design and construction of and relating to the Project shall meet Leadership in Energy and Environmental Design standards such that Development Manager would be able to obtain U.S. Green Building Council LEED minimum level certification for the Hotel and City Facilities and Parking Facilities Components of the Project. 14.9 OWNER AGENCY The Owner may retain and appoint such consultants and advisers that it, in its sole discretion, deems necessary or appropriate to advise or represent the Owner on the development of all portions of the Project and otherwise perform any act and exercise any decision-making authority on behalf of Owner in relation to this Agreement or any other agreement related to the Project. The Owner shall notify the Design/Builder and Development Manager as to its delegation in writing. The Design/Builder and Development Manager may rely on the Owner's delegation (i.e. to the Owner's Representative) for any purpose under this Agreement, provided that Owner's Representative shall not have the power to act on behalf of or to bind Owner (i) to amend this Agreement (other than an amendment pursuant to a Change Order); (ii) terminate this Agreement; (iii) waive any right of the Owner under this Agreement; (iv) commence an action to enforce Owner's rights under this Agreement; (v) appear, defend, compromise, settle, or otherwise attempt to act on Owner's behalf in respect of any claim or legal proceeding brought against Owner under this Agreement; (vi) approve a Change Order; or (vii) perform any act on Owner's behalf that is expressly prohibited under the MDA. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 30 14.10 LIMITATION ON OWNER LIABILITY Notwithstanding anything contained in this Agreement or any of the other agreements or documents referred to herein or otherwise, Owner shall not be liable for payment of any liabilities due to the Design/Builder, Development Manager or any other person under this Agreement, or any liabilities under or by reason of, or in connection with, this Agreement, any of the other agreements or documents referred to herein, the Project, or otherwise, except and to the extent of the Construction Fund and the annual appropriation of lawfully available funds in the City's annual budget process. 14.10.1 It is understood and agreed that the issuance of debt by the Owner is a governmental function and subject to the sole discretion of the Owner's City Council and it shall not be deemed or construed to constitute willful misconduct or bad faith under this Agreement or any other Contract Document, or otherwise be actionable against the Owner, in the exercise of its legislative discretion, to elect, for any reason whatsoever or for no reason, not to issue the debt obligations to fund the Construction Fund. 14.10.2 IT IS UNDERSTOOD AND AGREED THAT THE OWNER MAKES NO REPRESENTATION WHATSOEVER AS TO THE EXISTENCE OF AVAILABLE MONEYS, OR THE AMOUNT THEREOF, OR THE SUFFICIENCY THEREOF FOR THE PURPOSE FOR WHICH SUCH AVAILABLE MONEYS ARE TO BE USED UNDER THIS AGREEMENT. 14.11 NOTICE TO OWNER Any notice and/or statement required and permitted to be delivered to City shall be given at the following address, or at such other address provided to the Parties in writing; City of Baytown Attention: City Manager 2401 Market Street Baytown, Texas 77520 Telephone: (281) 420-6500 Facsimile: (281) 420-7176 with copy to: City Attorney 2401 Market Street Baytown, Texas 77520 Telephone: (281) 420-6505 Facsimile: (281) 420-6586 Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 31 ATTEST: ATTEST: ATTEST: DEVELOPMENT MANAGER: GARFIELD PUBLIC/PRIVATE LLC BY: PRINT NAME: PRINT TITLE: DESIGN/BUILDER: DPR Construction BY: PRINT NAME: PRINT TITLE: BY: PRINT NAME: PRINT TITLE: OWNER: City of Baytown, Texas A home -rule municipal corporation ATTEST: BY: S 0 Nwa z AM U Z Z Qw J cn O -ir oa- Zp QZ >- Q Q �- m I— Of w QCL H ir CL _m w 20 XZ w0 I— U N w Q z�xml :rwu,<a: e9:s sb`� w:nxr mm's �eunssayc�d NOLLV8OdUO0 3NI13SVe N]1SL1 (mI'm@fl„1. j SbX3y .kL n.] sm- mlse> 3rOa.-,sWi 31153Ubd]wLlOd, 0NMfs]:FCc�c1 b L AJ s MU 110Oa 6931! A135 A9 O3t0yddb L1;2 3t y39:Y3A01i -,may] EXHIBIT A Design/Builder's Personnel List In the event of any conflict, inconsistency or ambiguity between the terms and provisions of this Exhibit and those of the Agreement or other contrast documents, this Exhibit governs, In this Exhibit, "Contractor" means DPR Construction A General Partnership, 1. Labor Rates -January 1 2018 (Anniversary Date) Classificatton Rate Overtime Double•Tlme Classlti Z, Senior ur rsumator $ 142.00 !,!E $ 125.00 rracuces/Learning & Development $ 120.00 10.00 hnican $ 140.00 $ 74.00 Elator cantatingAssistant rotor -Jr $ SPW - Estimator Sr gyIntgration M Senior Estimator MEP Manager 82 00 Developmen._ ftDouble-TimeRate Design Manager: !,!E $ 125.00 rracuces/Learning & Development $ 120.00 Senior MEP Coordinator $ 140.00 SPW Executive $ 155.00 MEP Coordinator $ 120.00 SPW - Estimator Sr $ 142.00 MEP Manager $ 133.00 SPW - Estimator $ 110.00 Senior Project Manager $ 133.00 SPW -Safety Manager $ 107.00 Project Manager $ 112.00 SPW-Safa Coordinator $ 92.00 Senior Project Engineer $ 92.00 SPW - Project Manager -Sr $ 133.00 Project Engineer $ 82.00 SPW- Project Manager $ 110.00 Junior Project Engineer $ 79.00 SPW - Project Engineer Sr $ 92.00 Document ConV01SPW $ 79.00 - Project Engineer $ 79.00 Intern $ 70.00 SPW-Superintendent Sr $ 145.00 vConstructSPW-Superintendent $ 78.00 $ 110.00 PtC rojeconVols Manager/ En $ 127,00 SPW-AssistantSuperinten dent $ 93.00 SeniorScheduler140 $ SPW -Reld Engineer $ 80.00 Scheduler .00 $ 135.00 General Foreman $ 55.00 $ 77.00 Office CoordinatorCarpenter-General $ 96.00 $ 42.00 $ 58.00 Senior Project Accountant $ 96.00 Laborer - Foreman - General $ 53.00 $ 73.00 Project Accountant $ 81.00 Larpe $ 38.00 $ 54.00 Accounts Payable $ 80.00 ter-Foreener man Carpenter-Foreman-Conc/Unistrut $ 55.00 $ 72.00 Payroll Coordinator $ 80 .00 Carpenter -Concrete/ pt $ 42.00 $ 54.00 Sr Field Office Coordinator $ 80.00 Carpenter - Concrete - HelHelper Helper Field Office Coordinator $ 70.00 Concrete Operator/ Operating Engineer $ 43.00 $ 58.00 Insurance Administrator $ 80.00 Carpenter- Foreman -DFH Div SO $ 60.00 $ 80.00 Contracts Administrator $ 80. 00 Carpenter-DFH; Div 10 $ 46.00 $ 60.00 Receptionist $ 62.00 Drywaller-Foreman $ 56.00 $ 76.00 Safety Executive $ 155.00 Drywaller $ 42.00 $ 56.00 Safety Manager $ 107.00 Drywaller- Helper $ 38.00 $ 55.00 Safety Coordinator$ 92.00 Carpenter- Div 7 - Lead $ 52.00 S 68.00 Senior Superintendent $ 145.00 Carpenter -Div 7 $ 4100$ 54.00 SuperintendentDiv $ 117 .00 7 - Laborer $ 38.00 $ 54,00 Ass't Superintendent $ 95.00 Taper - Foreman $ 49.00 $ 67.00 Field Engineer $ 82 00 Taper $ 44.00 $ 58.00 SenxorSurveyor$ 145.00 Painter/Taper/Plaster - Lead $ 47.00 $ 62.00 Surveyor $ 95.00 Painter $ 4100 $ 55.00 Design Manager -Sr $ 180.00 Painter - Helper $ 38.00 $ 54.00 The above labor rates include wages, fringes, Talent Acquisition Manager $ 80.00 benefits, payroll taxes and employee insurance; employee benefits such as vacation, sick leave, and jury leave: and employee computer equipment,* mobile phones, accessories, software** through vConstruct or through temporary labor and support: and shall apply to both direct employees and workers agreements with Contractor. The above labor rates exclude holiday, and Insurance Program they also exclude worker's compensation insurance. These contracted if the Project is using a Controlled anniversary date of the rates as shown above. Such rate change be labor rates are subject to five percent (596) increase on an annual basis on the change shall not increase the Final shall accomplished by change order to the Agreement, provided, however, such rate GMP. * The following items are not included in this rate: Jobsite information technology infrastructure set-up (equipment and labor), jobsite phone/fax Imes (setup and usage), and hardware costs for tablet computers (e.g., Wads), though software, connectivity and IT support for tablets are included. ** The following types of DPR's customary software applications are included within this rate: Microsoft desktop and online productivity applications. email applications, BIM applications, construction applications, scheduling applications turnover software, CMIC project management & job cost management software, our data center hosting infrastructure and databases for these software applxcabons, firewall software and backup software for all devices core enterprise security applications. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder - Exhibit "A" Page 1 EXHIBIT A 2. Destgn/Builder's Personnel List E u! meet Rates -Janna 2018 Hourly Rate Weekly Monthly Item Rate Rata Truck $ 1,000.00 3. Insurance Rates: (a)'Contractor's Insurance' (Contractor's entire enterprise insurance program. excluding SDI and builder s risk) provided for the Project is fixed at the stipulated rate of (L2%) times contract value. The rate set forth above includes the cost of Contractor s CCIP coverage as outlined in the Contractor's Insurance Manual. The amount for Contractor's Insurance is due and payable in full upon Contractor's binding of the coverage for th.s project. ib! If Contractor is providing builder's risk/builder's wraparound insurance, Contractor s builder's risk insurance casts fixed at the stipulated rate of :0.10 times contract value. The charge for builder's risk insurance cost is in addition to the charge for Contractor s Insurance and :s due and payable in full upon Contractor's binding of the pol•cy. The amount for builder's risk insurance will be adjusted based on adjustments to the contract value and schedule of Contractor's performance. c) Contractor's cost to enroll all qualified subcontractors into the subcontractor default insurance (SDI) program for the Projects fixed at the stipulated rate of (1.4%) of enrolled subcontract value, including qualified subcontractors that are contracted under a self -perform scope of work. The initial charge for the SDI program (based on then -estimated subcontract volume) is due and payable in full upon Contractor's enrollment of the Project into the SDI program and is in addition to the charge for Contractor's Insurance. At the earlier of (1) the point where the estimated enrolled subcontract volume is actually exceeded, or, (2y the end of the Project., the amount for the SDI program will be adjusted and recons led based on the actual enrolled subcontract -volume. 4. Contractors Bond Rate: Contractor s cost to provide payment and performance bonds for the Project is fixed at the stipulated rate of (0.39%) times contract value. The initial charge for the bonds shall be based on the estimated contract value and is due and payable i n full upon issuance of the bonds. The charge for the bonds will be adjusted based on adjustments to the contract value and schedule of Contractor's performance. 5. Contractors Self -Performed Work ISPM. All self perform scopes of work will be performed on a lump sum subcontract basis, as such, self perform costs are not auditable. For any trade work performed by Contractor itself a standard fixed markup of 3% shall be applied to the amounts for SPW payable under the contract, in addition to any other applicable fees or markups on the SPW allowable per the Subcontract This standard markup is applicable to both base SPW scope (inclusive of all vendors and SPW subcontractors and any changes to the SPW scope. The value of this standard markup shall be considered part of Contractor's allowable costs on the same basis as subcontracted work. GENERAL' The rates in this Exhibit are fixed, stipulated rates by agreement of the Owner and Contractor. These fixed rates will be used to calculate the costs reimbursable to Contractor under the Agreement, including for change orders far each listed labor, equipment, insurance and bond classification item by multiplying such rates by the actual, applicable units. These fixed rates govern over any contrary cost reimbursement terms of the Agreement or other contract documents. Where Owner has the right under the Agreement or other contract documents to audit Contractor's costs such right with respect to these fixed rates is limited to auditing the quantity of allowable units and the application of the correct fixed rates but such audit right does not extend to tems of cost wthm the fixed rates or documentation of how such fixed rates were determined. Design -Budd Agreement and General Conditions Between Owner, Development Manager and Design/Builder - Exhibit "A' Page 2 EXHIBIT B List of Design/Builder's Equipment In the event of any conflict, Inconsistency or ambiguity between the terms and provisions of this Exhibit and those of the Agreement or other contract documents, this Exhibit governs. In this Exhibit, "Contractor" means DPR Construction, A General Partnership. BOOM LIFT -40' ARTICULATING 2WD ELECTRIC � 2, 11" O-1 BOOM LIFT -45' ARTICULATING 4WD ENGINE $380 $1,070 . $2,575 BOOM LIFT -45' ARTICULATING 2WD ELECTRIC $357 $1,063 $1,867 BOOM -LIFT -60' ARTICULATING 4WD ENGINE $380 $1,070 $2,575 BOOM LIFT -80' ARTICULATING 4WD ENGINE $520 $1,596 $3-554 BOOM LIFT -40' TELESCOPIC 4WD ENGINE $907 $2,500 $5,467 BOOM LIFT -45' TELESCOPIC 4WD ENGINE $357 $1,063 $1867 BOOM LIFT-60'TELESCOPIC4WD ENGINE $369 $1,125 $2,000 BOOM LIFT -65' TELESCOPIC 4WD ENGINE $482 $1,250 $2667 BOOM LIFT-80'TELESCOPIC4WD ENGINE $500 $1,500 $2,934 BOOM UFT-85'TELESCOPIC4WD ENGINE $907 $2,500 $5,467 BOOM LIFT -EXHAUST SCRUBBER $907 $2,625 $5,600 BOOM LIFT-WELDE�i KIT W/LEAD&GROUND JLG $33 $125 $324 MANLIFT-12' SELF PROP ELECTRIC $55 $198 $460 MANUFT-15' SELF PROP ELECTRIC $125 $250 $394 MANLIFT-20' SELF PROP ELECTRIC $155 $370 $945 LADDER -G' STEP $125 $350 $634 LADDER -8' STEP $17 $43 LADDER-10'STEP $23 $46 .$86 $9 2 LADDER -12' STEP $28 $55 10 $$92 LADDER714' STEP $32 $72 $144 LADDER•16'STEP $37 $91 $182 LADDER -16' EXTENSION $42 $114 $228 LADDER -20' EXTENSION $Z3 $73 $146 LADDER -24' EXTENSION $28 $65 $130 LADDER -28' EXTENSION $31 $84 $168 LADDER -32' ExTENSION $37 $91 $182 LADDER -36' EXTENSION $42 $107 $214 LADDER -40' EXTENSION $46 $116 $232 SCISSOR UFT -19'2 WD ELECTRIC $53 $124 $248 SCISSOR LIFT -20'2W - D ELECTRIC $125 $250 $394 SCISSOR LIFT -26' NAROW 2WD ELECTRIC $125 $250 $414 SCISSOR UFT -26' STANDARD 2 11�ID ELECTRIC $132 $375 $600 SCISSOR LIFT -26' 4WD ELECTRIC $132 $375 $600 SCISSOR LIFE -32' 2WD NARROW ELECTRIC $240 $620 $1, 52 0 SCISSOR LIFT -32' STANDARD 2WD EL $150 $475 ,52$800 SCISSOR LIFT -32' 2WD ELECTRIC $150 $475 $800 SCISSOR LIFT -40' 4WD ELECTRIC $260 $755 $1,950 SCISSOR LIFT -26' 4N(D ENGINE $320 $715 $2 080 SCISSOR LIFT -32' 4WD ENGINE -$219 $563 SCISSO�LIFT-33'4WDENGINELARGEOECK $225 $688 -$1,134 $1,334 SCISSOR LIFT=43' 4WD ENGINE. $3�s $925 $7,475 AIR COMPRESSOR-185CFM TOWABLE $269 $844 $2,200 AIR COMPRESSOR-375CFM TOWABLE $94 $269 $794 418 COMP ESSOR-375CFM 10W_ABLE Iq $188 $625 $1467 AIR TOOLS -HAMMER CHIPPING $250 $765 $2,125 AIR TOOLS -HAMMER 30#'T' $50 $144 $434 AIR TOOLS -HAMMER 30# "D" $50 $144 $434 AIR TOOLS -HAMMER 609 T' $50 $144 $434 AIR TOOLS -HAMMER 90#'T' $50 $144 $434 AIR TOOLS -RIVET BUSTER 11" STROKE $50 $144 $434 AIR TOOLS -RIVET BUSTER 8" STROKE $72 $259 $518 Brr CHISEL 2" ELECTRIC C/H $50 .$144 $433 BIT -CHISEL ELECTRIC C/H $12 $22 $4 BIT -POINT ELECTRIC C/H $11 $19 $38 AIR-3/4"X50'HOSE $11 ,$19 $38 PNEUMATIC -MULTI -HEAD SCA13BLER $11 $22 $22 $$ 44 BIT -1 1/8" ASPHALT CUTTER $242 $ $1,44 BIT -11/8" CLAY SPADE $15 $29 $S8 BIT -11/8" MOIL POINT $15 $29 $58 BIT-11/8"Xi" CHISEL $11 $20 $40 BIT -11/8"X3' MOIL POINT $11 $20 $40 BIT -11/0"X3" CHISEL $11 $20 $40 BIT-11J8"X4' MOIL POINT $12 $21 $42 BIT-11/8"X6' MOIL POINT $11 $20 $40 BIT -1" CLAY SPADE $17 $32 $64 SIT -1" MOIL POINT $15 $29 $58 BIT -1"X1" CHISEL $11 $20 $40 BIT 1"X3" CHISEL $11 $20 $40 BIT -2" A/C/H CHISEL $11 $20 $40 BIT-A/C/H BUSH HEAD $11 $20 $40 BIT-A/C/H CARBIDE BUSH HEAD $20 $42 $40 $36 $70 $140 Design -Build Agreement and General Conditions Between Owner, Development Design/Builder— Exhibit "B" Manager and Page 1 BIT -A C H CHISEL BR-A/C/H POINT _.. —i _.. -.-- "---- - — - _$20 $40 - _._., �_.._ STEEL-10'DRILL - - --._ $11 $20 $40 -- - • -"---•------. STEEL -2' DRILL - --- - -_ .._.__----_�..-._�---- STEEL _•_ $25 $17 $51 $136 -3' DRILL _ _ ..--- $32 $64 STEEL -4' DRILL - - .�._ _.... _ . _ _--•- --- -_..._ $20 $37 $74 STEEL -6' DRILL -.. • ___.._.-.._--_. •-----_._... _ _ $22 $43 $86 STEEL -8' DRILL - - - '-' �-_ -^ - -- ...._ $26 $32 $53 $106 ROLLER -36" RIDE ON DOUBLE DRUM --- '-' '"" - $64 $128 ROLLER -48" RIDE ON DOUBLE DRUM `--"" -' - $190 $620 $1790 ROLLER -66" RIDE ON DOUBLE DRUM ^' - - - "- $305 $850 $2,350 ROLLER -9 WHEEL RIDE ON PNEUMATIC_• -' -- "- $650 $2,045 $6,081 ROLLES-24"/33" WALK BEHIND TRENCH - -- $325 $1,018 $2,800 ROLLER -26" WALK BEHIND DOUBLE DRUM $344 $982 $2,134 ROLLER -47" RIDE 0 SINGLE DRUM $155 $585 $1,575 ROLLER -54" RIDE ON SINGLE DRUM $425 $1,136 $3,476 ROLLER -66" RIDE ON SINGLE DRUM $475 $1.363 $4,024 TAMPER -PLATE GAS $525 $1,704 $4,769 TAMPER -UPRIGHT GAS MEDIUM $94 $282 $634 TAMPER -UPRIGHT GAS SMALL $94 $282 $634 BLADE -DMD. DISK_4" $83 $344 $743 DRILL -DIAMOND CORE BIT 11/2 $11 $22 $44 DRILL -DIAMOND CORE BIT 11/4" $35 $131 $271 DRILL -DIAMOND CORE BIT 1" $35 $131 $271 DRILL -DIAMOND CORE BIT 1J2" $35 $131 $271 DRIU.-DIAMOND CORE BIT 10' $Z2 $66 $150 DRILL -DIAMOND CORE BIT 12" $53 $204 $411 DRILL -DIAMOND CORE BIT 21/2' $165 $495 $1,125 DRILL -DIAMOND CORE BIT 2" $35 $131 $271 DRILL -DIAMOND CORE BIT 2"4' (SET) $35 $131 $271 DRILL -DIAMOND COREY 31/2" $100 $300 $600 DRILL -DIAMOND CORE BIT 3' $35 $131 $271 DRILL -DIAMOND CORE BIT 3/4" $35 $131 $271 DRILL -DIAMOND CORE BrT4" $22 $66 $150 DRILL -DIAMOND CORE BIT 5 $35 $131 $271 DRILL -DIAMOND CORE BIT 5/8" $53 $204 $411 DRILL -DIAMOND CORE BIT 6" $22 $66 $150 DRILL -DIAMOND CORE BIT 7" $53 $204 $411 DRILL -DIAMOND. COR E.Bff 7/8" $53 $2D4 $411 DRILL -DIAMOND CORE BIT 8" $22 $66 $150 DRILL -DIAMOND ROTO CORE BIT 31/4' $53 $204 $411 DRILL -CORE HAND HELD ELECTRIC $39 $116 $265 DRILL -CORE STAND ELE9RIC $92 $284 $656 SAW -12" CUTOFF HAND HELD MIX FUEL $109 $330 $735 SAW -14" CONC W/B SELF PROPELLED GAS $72 $240 $613 ,SAW -14" CUTOFF HAND HELD ELECTRIC $94 $250 $867 SAW -14" CUTOFF HAND HELD MIX FUEL $57 $211 $560 SAW -18" CONC W/B SELF PROPELLED GAS $88 $303 $700 SAW -CART $149 $464 $1,120 SAW -CONCRETE HAND HELD ELECTRIC $28 $110 $220 SAW -CONCRETE WALK•BEHIND GAS $40 $150 $300 . SAW -MICRO CON GREEN CONC W/B GAS $91 $340 $841 SAW-SOFF CUT WALK BE ND GAS $66 $239 $630 SAW-SOFF CUT WALK BEHIND GAS $353 $1,300 $3,431 BUGG`(-EXHAUST SCRUBBER FOR POWER $124 $495 $1,357 BUGGY -GEORGIA $21 $81 $184 BUGGY -GEORGIA (POWER) $23 $80 $209 BUCKET -CONCRETE 1 YARD $1138 $418 $945 BUCKET• -CONCRETE 1(2 YARD $57 $211 $449 BUCKET -CONCRETE 2 YARD $44 $158 $421 CONCRETE -BUCKET W/ DISCH CIE 1[2 YD $73 $266 $535 CONCRETE -HOPPER 30" X 30" $36 $133 $349 MIXER-CEMENT4CUBIC FOOT ELECTRIC $26 $55 $110 MIXER -CEMENT 4' CUBIC FOOT GAS $46 $171 $419 MIXER -CEMENT 7 CUBIC FOOT $46 $171 $419 MIXER-CEMENT9 CUBIC FOOT $46 $171 $419 MASER -MORTAR 9 CUBIC FOOT $76 $257 $627 BUGGY-TILTTRUCK 1 YARD $80 $266 $696 VISRATOR,CONCRETE 1 HE $35 $120 $300 VIBRATOR -CONCRETE 2 HP $53 $168 $414 VIBRATOR -CONCRETE 2 Hp BACKPACK $57 $210 $478 VIBRATOR -CONCRETE 3 HP $77 $231 $695 CONCRETE -BLANKET (11' X 23') ELECTRIC $218 $519 TROWEL -36" GAS POWER $$61 $340 $680 TROWEL -44" GAS POWER $67 $213 $545 CONCRETE -FLOOR GRINDER ELECTRIC $69 $230 $586 CONCRETE -FLOOR GRINDER PROPANE $86 $319 $841 CONCRETE -VACUUM FOR GRINDER/PLANER $84 $3D0 $818 GRINDER-DYMA INSERTS (SET OF 6) $50 $172 $468 GRINDER -STRIP SERT BOXES (SET OF 6) $150 $534 $1,363 CONCRETE -PLANER ELECTRIC 4" $106 $188 $376 $51 $180 $432 Design -Build Agreement and General Conditions Between Owner Development Manager and Design/Builder - Exhibit "B" Page 2 CONCRETE -PLANER GASW/CAR BIDE TEETH r �'A�'' :!" PRESSURE W .-"""_"-'--•-------_----__._ ASI -ER -COLD GAS PORTABLE $325 --- _. $972 i�:u• y -. $2,500 BACKHOE .. -2WD1CSTANDARD .... -- ` -� $103 .._._ _ $385 $953 $953 - BACKHOE -4WD 14' STANDARD $282 $813 $1,867 BACKHOE-2WD-18' EXTENDAHOE $319 $875 $2,200 BACKHOE -4WD 18' EXTENDAHOE $310 $972 $2,426 BACKHOE -ROCK BUCKET 16" $350 $1,1013 $2.462 BACKHOE -BUCKET 18" V BOTTOM $14 $52 $137 BACKHOE -BUCKET 24"V BOTTOM $61 $$52 $425 BACKHOE -3191-410 EXHAUST SOUBBER $72 $218 $505 BACKHOE -FORKS 1RB COUPLER PROP (410) $70 $251 $681 SKIDSTEER-250# HAMMER PROP $55 $165 $400 SKIDSTEER-250# HAMMER UNIV $161 $598 $1,622 SKIDSTEER-500# HAMMER UNIV $157 $563 $1,534 EXCAVATOR -250# HAMMER UNIV$195 $725 $1,850 EXCAVATOR -750# HAMMER $161 $598 $1,622 BACKHOE -1000# HAMMER $225 $800 $2 000 LOADER -WHEEL FORK ATTACH $250 $9DO $2,100 AUGER ATTACH PLATSKID $36 $129 $340 AUGER-ATTACEI SKID $` 4 $138 $325 BRUSH CUTTER -SKID $100 $375 $953 SKIDSSUER-60" SWEEPER ATTACH $193 $385 $800 $800 SKIDSTEER-BUCKET41N1 UNIV $130 $475 $ SKIDSTEER-FORK ATTACH LARGE $106 $389 $1,022 TRENCHER -RIDE -ON 24 ROCK SAW WHEEL $28 $94 $204 TRENCHER -RIDE -ON 30'' ROCK SAW WHEEL $525 $1520 $4,300 MINI EX -4,000# ROPS MINI EX -6,000# CAB $650 $270 $2,300 $5.900 MINI EX -6,000# ROPS $295 $620 $825 $1.788 $1,255 MINI EX-8,000#CAB $244 $719 $1,867 MINI EX -8,000# ROPS $325 X935 $2,420 .jv_IINI EX-10,OD0# ROPS $250 $813 $2,134 MINI EX -10,500# CAB $380 $1,025 $2,750 MINI EX -10 SOOjt R0�5 $420 $1,295 $3,395 MINI EX -18,000# CAB. $375 $1,125 $2,934 TRAILER -S00 ALLON VAC W/25' HOSE 2 qLE $500 $1,875 $4,534 TRAILER -800 GALLON VAC W/25' HOSE 2 AXLE -$375 $1,500 $4,000 LOADER -WHEEL 2.5 YARD $780 $2,335 $6,865 LOADER -WHEEL 3.0 YARD $563 $1,813 $4,400 LOADER-WHEEL4,OYARD $840 $2,300 $5,990 LOADER -SKID 60" LOADER -SKID 68" $850 $260 $2,405 $6,200 LOADER -SKID 74" $244 $725 $657 $1,703 LOADER-TRACKSKID68"/78" $270 $725 $1467 TRENCHER -RIDE ON 48" $338 $1,200 $2,000 $2134 TRE CC{ER_WALXB.EH1ND24"/PACK TRENCHER $344 $1,000 $2,800 -WALK BEHIND 24" /TIRE $215 3794 $2,146 TRENCHER -WALK BEHIND 36' / TRACK TRENCHER $195 $654 $2,951 -WALK BEHIND 36"/TIRE GENERATOR $229 $682 $2,251 -PORTABLE 6KW GAS $229 $682 $2,290 GENERATOR -TOWABLE 15KW DIESEL $75 $250 $650 $650 GENERATOR -TOWABLE 20KW DIESEL_ - $193 $540 $ GENERATOR-TOWABLE36KW DIESEL $169 $500 GENERATOR -TOWABLE 56KW DIESEL $207 $62S $1,034 GENERATOR -TOWABLE DIESEL GENERATOR_TOWABLE $250 $707 $1,467 $2,734 IOOKW DIESEL $275 $875 $2 267 DRILL -1/2" ELECTRIC DRILL-1/2"ANGLE ELECTRIC $415 $22 $1,245 $3,150 DRILL -1/2" MAGNETIC PRESS ELECTRIC $231 $54 $144 DRILL -J4" HAMMERELECT $95 $347 $153 $694 DRILL -3/4" MAGNETIC PRESS ELECTRIC $28 $100 DRILL -3/8" ELECTRIC $95 $347 $272 DRILL -3/8" ANGLE ELECTRIC $20 $69 $694 GRINDER -41/2" ANGLE ELECTRIC $15 $52 $148 GRINDER -9" ANGLE ELECTRIC $17 $58 $137 HAMMER -35# CHIPPING ELECTRIC $26 $88 $116 HAMMER -CHIPPING ELECTRIC $83 $314 $191 HAMMER -60# ELECI]IIC $66 $215 $628 HAMMER -60# HILTI. ELECTRIC $105 $385 $625 HAMMER -1 1/2" ROTO ELECT RJC $120 $460 $770 HAMMER -13(4" ROTO ELECTRIC $74 $248 $940 HAMMER -1" ROTO ELECTRIC $83 $279 $586 SAW -71/4" SKIL ELECTRIC $55 $195 $709 $709 SAW-PORTA BAND W BLADE ELECTRIC $24 $65 SAW RECIPROCATING ELECTRIC $43 $ISO $147 LIGHT -1000 WATT2 HEAD PORTABLE ELECTRIC $28 $88 $410 LIGHT -4010 WATT TOWER TOWABLE DIESEL $35 $116 $182 $182 BANDING MACHINE -W CRIMPER & PULLER $94 $250 BLOWER -BACK PACK $35 $64 $634 LEVEL -BUILDERS W TRIPOD/TARGET $52 $185 $128 LEVEL -LASER W TRIPOD/TARGET $51 $136 $478 $103 $273 $359 $709 Design -Budd Agreement and General Conditions Between Owner, Development Manager and Design/Builder - Exhibit "8" Page 3 Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder — Exhibit "B" Page 4 LEVEL -TRANSIT W TRIPOD ' TORCH -SET COMPLETE -""""'"---- $131 $295 FORKLIFT -18'4,400 4WD TELEHANDLER -- '- - -'�' -"^' _.-..._- $99 $231 $462 FORKLIFT-34'6,000#4WD TELEHANDLER '- "-"`-`- $325 $875 _ $2134 FORKLIFE-36' 6,000#gWDTELEHANDLER ��-`-""'-"'-'--"• $357 $875 $2,2r.7 FORKLIFT -42' 6,000# 4WD TELEHANDLER $369 $1000 $2,467 _ FORKLIFT -42'8,000# 4WD.TELEHANDLER - $369 $1,000 $2467 FORKLIFT -54' 10,000#4WDTELEHANDLER "' - $469 $1,188 $2,867 FORKLIFT55'12,D00#4WDTELEHANDLER - $588 $1.563 $3,834 FORKLIFT -1 112 YD SELF DUMP HOPPER_........ " ----"""-- $600 $2,100 $5 334 FORKLIFT -2 YD SELF DUMP HOPPER - $45 $160 $420 JACK -21" PALLET "` -- $61 $193 $475 JACK-27"PAL LET JACK -ELECTRIC PALLET $51 $51 $166 $166 $410 MATERIAL LIFT -12' $80 $300 $410 $800 MATERIAL LIFT -15' $45 $152 $390 MATERIAL LIFT -18' MATERIAL LIFT -24' $45 $66 $152 $209 $390 MATERIAL LIFT -6' $83 $237 $475 $575 PUMP -TRASH 2" GAS W/SUCT & 5o' DISCH $30 $95 $250 PUMP -TRASH 3" GAS W/SUCT& 50' DISCH $83 $292 $695 PUMP -TRASH 4' GAS W/SUCT & 50' DISCH $94 $358 $818 PUMP -TRASH 4" TOW D5L W/SUCi & 50' DISCH $143 $528 $1308 PUMP -SUB 11/2" ELECTRIC W/50' DISCH $280 $845 , $2,331 PUMP -SUB 1/2HP 2" ELECTRIC W/50' DISCH $29 $92 $184 PUMP -SUB 1HP 2' ELECTRIC W/50DISCH $68 $248 $586 PUMP -SUB SHP 3".ELECT W50 DISCH/3 PHASE $68 $248 $586 PUMP -SUB PUDDLE ELECTRIC W/50 GRDN HOSE $94 $341 $845 PUMP --SUB TRASH 1/2HP 2" ELEC W/50' DISCH $20 $46 $92 PUMP -SUB TRASH 1HP 2" ELECTRIC W/50' DIS $68 $248 $586 TRAILER -10' UTILITY 1 AXLE $68 $248 $586 TRAILER -12' UTILITY 2 AXLE $36 $133 $360 TRAILER -12,000 LB FLAT BED 2 AXLE $44 $158 $373 TRAILER -FLAT BED 1 AXLE $52 $183 $499 TRAILER -.FLAT BED 2 AXLE $35 $105 $250 TRAILER -PIPE 2 AXLE $39- $158 $316 TRAILER -500 GALLON WATER WAGON 2 AXLE $165 $550 $1,400 TRUCK -WATER 2,000 GAL $i?5- $357 $927 DPRSuperintendent12TonTruck $332 $1,125 $3,000 GENERAL: The rates in this Exhibit are fixed, stipulated rates by agreement rates will be used to calculate the costs reimbursable to Contractor of the Owner and Contractor. These fixedl000 for each listed labor, equipment, insurance under the Agreement, including for change orders, and bond classification item applicable units. These fixed rates by multiplying such rates by the actual, govern over any contrary cost reimbursement terms of the Agreement or other contract documents. Where Owner has the right under the Agreement Contractor's costs, such right with or other contract documents to audit respect to these fixed rates is limited to auditing the quantity of allowable units and the application of the correct fixed rates, but such audit right does not documentation of how such fixed extend to items of cost within the fixed rates or rates were determined. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder — Exhibit "B" Page 4 EXHIBIT "C" SECTIONS FROM THE MASTER DEVELOPEMNT AGREEMENT 1.2 Definition of Terms. When used in this Agreement with an initial capital letter or letters, each of the following terms shall have the meaning given it below. "Brand" means the upscale hotel brand of the Hotel as approved by the City Council and Hotel Owner. Such Brand shall never be below that of the Competitive Set. "City" means the City of Baytown, Texas, a home -rule municipal corporation located in Hams and Chambers Counties, Texas. "City Contribution" means the City's combined net proceeds of the issuance of the City's debt obligations, in one or more series, to be used to construct the City Facilities; provided that the City shall not be obligated to contribute more than $21,100,000.00 in net proceeds to fund the design, development and construction of the City Facilities, plus the Design and Development Funds. The net proceeds of the City's obligations to fund the City Facilities will be based on a par amount that may be supported by revenues the City has dedicated to the payment of the debt, based on current City projections and market conditions. In no event shall the City Contribution be in excess of the actual costs to develop the City Facilities or the maximum amount stated hereinabove. "City Delay" means any delay in completion of construction of the Project resulting from any act or delay of the City, its employees or agents, other than delays resulting from (i) acts that the City or its employees or agents are expressly permitted or obligated to perform pursuant to the City's police power or pursuant to this Agreement, or (ii) the failure by the City to perform timely any of its obligations under this Agreement, other than those functions of the City acting in its governmental capacity. "City Facilities" means the public meeting rooms, ballroom, and conference center areas along with related infrastructure, other public facilities and surface parking as set forth in Section 2.1.1(a) and in Exhibit A. "City Facilities Budget" means the budget for the development and construction of the City Facilities prepared by Garfield and approved in writing by both the City and Hotel Owner. The City Facilities Budget and any amendments or changes thereto will only be effective if and to the extent approved in writing by both City and Hotel Owner. "City Representative" means the City Manager of the City or such other person as may be designated in writing by the City Manager of the City as its representative for the Project. "City Specialists and Consultants" means the planning, architectural, engineering, interior design and other specialists and consultants engaged by the City to act as its representatives with respect to the Project. "Completed" means, with respect to any portion of the Project, when the Project Architect certifies in writing to the applicable Party(ies) that the construction of such portion of the Project is substantially completed in accordance with the Development Plan to permit use thereof for the purposes for which it is intended, which date may precede the full completion of all punch list items, landscaping and similar design and development functions. "Construction Deadline" means the date on which the Construction Phase commences, such date being no later than 60 days after the City Financing Closing, subject to Force Majeure. "Contractors" means, collectively, the General Contractor and its subcontractor; for construction of the Project. "Design and Development Funds" means City -provided funds not to exceed $1,600,000.00 in cash for the payment of Project Development Phase costs of the City Facilities incurred prior to the availability of funds to the City from the City Financing Closing. "Design Professionals" means the planning, architectural, engineering, interior design and other specialists and consultants engaged by Garfield or General Contractor and/or the City pursuant to the Proposal for the design and construction of the Project, including the Project Architect. "Development Budget" means, collectively, the Hotel Budget and the City Facilities Budget. "Development Plan" means the detailed plan concerning the Project and all items which will be required to cause Final Completion of the Project, which shall include, without limitation, the final drawings and specifications, development schedule, and Development Budget established during the Project Development Phase, as approved by the City, as the same shall have been amended as provided herein during the construction phase of the Project. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder—Exhibit "C" Page 1 "FF&E" means those items of furnishings, fixtures, equipment, accessories and materials for use in the operation of the Project or any portion thereof. "Hotel Budget" means the budget for development and construction of the Hotel, prepared by Garfield and Hotel Owner and approved in writing by the City and the Hotel Owner as same may be modified pursuant to this Agreement and the Hotel Development Agreement with concurrent notice to the City Representative of any such modification. "Hotel Construction Phase Financing" means those certain tax-exempt bonds or other form of financing issued by the issuing entity designated by Hotel Owner, upon written approval by Hotel Owner's Board of Directors, the net proceeds of which are loaned to the Hotel Owner and used for financing 100% of the costs of completing (a) the development and construction of the Hotel (including related financing costs, capitalized interest reserves tal, and Budget and (b) the developmentand fconstruction or t1of the City Facce and ilitiiees,lbut only tolthe extenated t�the actual costs oeys'fees and f the CityFacilities ursuant texceed ttel amount of the City Contribution.he "Hotel Development Agreement" means that certain hotel development agreement between Hotel Owner and Garfield dated 2018 pursuant to which the Hotel will be developed. "Hotel Development Phase Financing", if any, means those certain bonds or other form of financing issued by the entity designated by Hotel Owner, upon written approval by Hotel Owner's Board of Directors, the net proceeds of which shall be no less than $2,500,000.00 for payment of Hotel Owner's portion of approved Project Development Phase costs and expenses related to the Hotel and the termination payment required under Sections 11.1.3 and 11.1.5(a) herein. "Hotel Owner" means Cedar Trinity Corporation, a Texas non-profit corporation. "Hotel Owner Financing Contribution" means the combined net proceeds from the issuance of the Hotel Development Phase Financing and the Hotel Construction Phase Financing. "Hotel Owner Financing Documents" means the trust indenture(s) for the Hotel Development Phase Financing and the Hotel Construction Phase Financing, any related bond purchase agreement and all other security documents or instruments pursuant to which Hotel Owner Financing Contribution is made. "Hotel Site" means that portion of the Property on which the Hotel shall be constructed, as described in the Ground Lease. "Leasehold Mortgagee" means the Trustee appointed pursuant to the Hotel Owner Financing Documents. "Marina Parking Site" means the 1.92 -acre parking area adjoining the City Facilities as shown on Exhibit A, which area is subject to an existing parking agreement with the adjoining Marina. "Marina Site Parking Agreement" means the parking rights agreement between the City, as lessor, and Hotel Owner, as lessee, regarding the use of approximately 230 spaces located on the Marina Parking Site. "Project Architect" means BOKA Powell, LLC. "Project Development Phase" means the period of time commencing upon the Effective Date of this Agreement and ending on or before the Construction Deadline as such date may be extended by mutual agreement of the Parties, during which the Parties shall diligently attempt to accomplish and mutually agree upon all the matters enumerated in Article 4 hereof. "Project Funding Deadline" means April 30, 2019, unless such date shall be extended by agreement of Hotel Owner, and the City Representative. "Property" means the 7.745 -acre tract of land situated in the Ciy, Harris County, Texas, owned by the City and more fully described in Exhibit A attached hereto, together with the Marina Parking Site. 2.2.1 Project Development Phase (b) Following the execution of the design/build contract for the City Facilities and the Parking Facilities by the City and subject to Section 3.3.9 hereof, the City shall have available its Design and Development Funds for the design and development costs of the City Facilities. Following the execution of the design/build contract for the Hotel by the Hotel Owner and subject to Section 3.3.9 hereof, the Hotel Owner (or an entity designated by Hotel Owner) shall issue its Hotel Development Phase Financing for the design and development costs of the Hotel such that both the City and Hotel Owner shall be able to determine the Development Budget; provided, however, that in no event shall the City expend any of its Design and Development Funds prior to the closing of the Hotel Development Phase Financing. 2.2.2 Closing (b) The proceeds of such financing contributions shall be available no later than the Hotel Owner Financing Closing and the City Financing Closing and shall be made available for disbursement as development of the Project proceeds in accordance with the design/build contract or otherwise applied toward the Project as agreed among the parties in writing. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder—Exhibit "C" Page 2 3.1.1. (e) Negotiating. reviewing, evaluating and finalizing the GMP Contracts with the General Contractor, it being understood that it is anticipated that there shall be separate GMP Contracts for (i) the Hotel, and (ii) for the City Facilities. Hotel Owner agrees to retain or cause to be retained the General Contractor pursuant to a GMP Contract for the construction of the Hotel. The City agrees to retain the General Contractor pursuant to a GMP Contract between the City, Garfield and the General Contractor entered into pursuant to the City's selection under the Request for Proposal issued by the City for the construction of the City Facilities. Garfield shall administer such co applicable to municipalities and the contract(s) with the Project Architect shall name the City as an additional insurentract on the City's behalf as the development manager for the City during the construction phase of the applicable GMP Contract. The contract for the City Facilities shall require the General Contractor to provide payment and performance bonds in accordance with general Texas law d and shall provide that the City Council may, upon Gafield's or Hotel Owner's default and termination of this Agreement, enter into a new contract with the Project Architect and General Contractor for the City Facilities. The GMP Contracts must be in an amount equal to or less than the net construction proceeds of the City's debt obligations and the Hotel Construction Phase Financing, respectively. Any GMP Contract costs in excess of the available bond proceeds shall be funded through the Hotel Construction Phase Financing, subject to termination of this Agreement as set forth in Section 11.1.3; and 3.3.6 Design/Build Contracts. The City, Garfield and the General Contractor shall enter into a design/build contract for the construction of the City Facilities; and Hotel Owner, Garfield and the General Contractor shall enter into a design/build contract for the construction of the Hotel. 3.3.9 Hotel Owner Financing Contribution and City Contribution. On or before 90 days following the Effective Date of this Agreement, Hotel Owner (or an entity designated by Hotel Owner) shall be prepared to close the Hotel Development Phase Financing to fund design and development costs of the Hotel, and the City shall have its Design and Development Funds available for expenditures of the design and development costs of the City Facilities. Provided, however, that the City shall not expend any Design and Development Funds prior to the closing of the Hotel Development Phase Financing and provided that the City shall only expend its Design and Development Funds subsequent to the City Council's approval of the design/build contract for the City Facilities. On or before the Project Funding Deadline and upon the development of the budget set forth in the Garfield Hotel Development Agreement, the Hotel Owner shall close its Hotel Construction Phase Financing and the City shall sell its debt obligations to fund the City Contribution, respectively, such that proceeds of such financing shall be available by the Hotel Owner Financing Closing and the City Financing Closing. 5.1.2 Payment of Costs. Payment of design and development costs incurred during the Project Development Phase for the City Facilities shall be made by the City pursuant to its normal construction payment procedures. No design and development costs shall be paid by the City prior to Hotel Owner's closing on the Hotel Development Phase Financing and approval of the design/build contract for the City Facilities. However, when and if the City is obligated to pay in accordance with this Agreement, the design and development costs shall be paid pursuant to Section 9.1. Payment of design and development costs for the Hotel and all other privately owned facilities in the Project Development Phase shall be made by Hotel Owner. 6.1.5 Delivery Schedule. Garfield shall prepare a projected delivery schedule for goods purchased based on production and delivery dates furnished by suppliers. Garfield shall use reasonable efforts to coordinate the schedule with the construction schedule under the design/build contracts and place purchase orders within sufficient time to allow delivery in accordance with the projected construction schedule. 6.1.6 Records. Garfield shall maintain or cause to be maintained proper, accurate and complete accounting records including competitive bids and proposals, purchase orders, purchasing receipts and disbursements made in connection with the purchase of the FF&E for the City Facilities. Garfield shall make available these records for audit, inspection and photocopying by the City Representative or Hotel Owner, or any other persons designated by the City Representative or Hotel Owner, upon five (5) business days' notification. Following Final Completion of the City Facilities or termination of this Agreement, Garfield shall and at the City's or Hotel Owner's sole cost, as applicable, deliver to the City Representative or Hotel Owner a copy of all such records. Garfield shall retain copies of such records for a period of three (3) years from Final Completion. 7.2• No Limitation on City's Governmental Functions. Garfield and Hotel Owner recognize the authority of the City under its charter and ordinances to exercise its police powers in accordance with Governmental Rule to protect the public health, safety, and welfare. Such powers extend to Garfield's or its General Contractor's construction activities on City property, and Garfield recognizes the City's authority to take appropriate enforcement action in accordance with Governmental Rule to provide such protection. Whenever, in the City's judgment such action is required, the City shall immediately notify Garfield (with a copy to Hotel Owner) to resolve the situation. No lawful action taken by the City pursuant to these police powers shall subject the City to any liability under this Agreement, including without limitation liability for costs incurred by the General Contractor, Garfield or Hotel Owner, and as between Garfield and the City, any such costs shall be the sole responsibility of Garfield and the General Contractor. 7.6. Permits. The appropriate City staff and Hotel Owner staff, to the extent applicable, shall execute and cooperate with Garfield and all Contractors in connection with the issuance of all building permit applications, plans of development, utility easements, requests for certificates of occupancy and such other documents as may reasonably be required l ed forGarfield, permit lHotel Owner or General Contractor to obtain building permits, licenses, approvals, certificates, utility services and other permits and authorizations as may be necessary for the development, construction and operation of the Project. It shall be the ultimate responsibility of Garfield to secure all such licenses and permits required to be obtained by Garfield, General Contractor or Hotel Owner or the City with respect to construction, completion and occupancy of the City Facilities, including any necessary building, occupancy, sewer and utility permits. Garfield shall secure Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder — Exhibit "C" Page 3 or cause to be secured all such licenses and permits required to be obtained with respect to the construction, completion and occupancy of the Hotel, including any necessary building, occupancy, sewer and utility permits. Notwithstanding any provision of this Agreement or any other Project Agreement to the contrary, the City covenants and agrees that any and all fees chargeable by the City for building permits, approvals, connection fees, tap fees, and certificates in connection with the development and construction of the Project are hereby waived in their entirety. 9.1. Payment of City Costs. Garfield's requests for payments that are due and payable on contracts with the contractors for the City Facilities shall be made by Garfield in written draw requests submitted to the appropriate City staff pursuant to an agreed upon draw schedule, which is approved by the City Representative in writing, during the term of this Agreement; provided, however. that the City shall not be obligated to pay any draw requests for the City Facilities if construction of the Hotel is not in accordance with the approved project schedule or is not being constructed on a schedule necessary to substantially complete the Project by the date se ithforth e Section 4.1 herein. The City shall pay costs pursuant to its contract with Garfield and the General Contractor for the City Facilities. Each such draw request shall include documentation of all costs and expenses, including construction value, in reasonably sufficient detail to permit City staff to determine the appropriateness of such reimbursement payment and, with respect to draw requests during the period of construction of the City Facilities, shall include a certification by the Project Architect of the status of completion of the City Facilities (on AIA Document G 702, Application and Certification for Payment) in accordance with the Development Plan, and a partial release of mechanic's liens from the General Contractor with respect to all portions of the Project for which payment to the General Contractor has been made. Once verification of each cost detailed in the draw request has occurred, including on-site confirmation, the draw request shall be forwarded for written approval to the City Representative. After written approval, the draw request shall be submitted to the City's Finance Department for payment. Progress payments during construction are made within thirty (30) days of receipt of an approved draw request pursuant to City policy, as long as the payment request contains sufficient detail for City approval. The City shall pay the amounts set forth in such draw requests to Garfield for their payment to contractors or for the reimbursement of payments previously made to contractors pursuant to the City's customary payment process for City construction projects. Hotel Owner shall pay for all cost overruns to the City Facilities Budget, as such City Facilities Budget has been approved by Hotel Owner. 11.1.3 Termination Prior to Project Funding Deadline. The City or Hotel Owner may terminate the Agreement after the Project Agreements Deadline and prior to the Project Funding Deadline and thereupon this Agreement shall be of no further force or effect. Upon a termination by the City during this time period, the City shall, in connection with the Project, reimburse Hotel Owner for all design and other out of pocket development costs incurred for the Project up to the date of termination up to a maximum amount of $2,500,000. Further, Garfield and Hotel Owner specifically acknowledge that the City's obligations under this section shall not constitute a general obligation of the City or indebtedness under the constitution or laws of the State of Texas. Upon a termination by Hotel Owner during this time period, City shall retain and/or receive ownership and possession of the site plans, drawings and studies prepared for the Project, and the Hotel Owner shall reimburse City for all design and other out of pocket development costs incurred by the City for the City Facilities up to the date of termination in an amount not to exceed $150,000.00. 13.4. Procurement of Goods and Services from Historically Underutilized Businesses. In developing and constructing the Project, Garfield agrees to comply and cause the General Contractor to comply with the City's Good Faith Effort Program. Design -Build Agreement and General Conditions Between Owner, Development ;Manager and Design/Builder—Exhibit "C" Page 4 EXHIBIT "D" INSURANCE REQUIRED OF DESIGN/BUILDER (WITH WRAP-UP PROGRAM) INSURANCE REQUIRED OF DESIGN/BUILDER (WITH WRAP-UP PROGRAM) The Design/Builder shall purchase and maintain in effect at all time during the during the full term of the Agreement, insurance policies providing the coverages specified below, subject to the terms, conditions and exclusions stated in such policies. Design/Builder shall implement a Contractor Controlled Insurance Program ("CCIP") which includes all liability coverages and Worker's Compensation with limits set forth below with insurers authorized to do business in the State of Texas. The purpose of the CCIP will be to provide consistent coverage and consistent claims management for all enrolled subcontractors and Subsubcontractors. Builder's Risk will be obtained and maintained by Design/Builder separately from the CCIP. These insurance requirements are in addition to all insurance requirements set forth in the Agreement for the Project. "Owner," "Indemnitee," "Indemnitees" and "Design/Builder" shall each have the meanings set forth in the Agreement. CCIP COVERAGES REQUIRED: 1 • Workers Compensation/Employers 'Liability Workers' Compensation Insurance with statutory limits as required by the Labor Code of the State of Texas and Employer's Liability Insurance with limits of $1,000,000 per each accident, $1,000,000 disease policy limit, and $1,000,000 occupation disease per employee. Worker's Compensation coverage shall be based on proper reporting of classification codes and payroll amounts and filing of any coverage agreement which meet the statutory requirement of the Texas Labor Code and shall apply to all employees of the Design/Builder and any Subcontractor(s) and Subs ubcontractor.sDesign/Builder shall cause all insurers providing workers compensation insurance to waive all rights of subrogation against Owner and Indemnitees. provided such waiver shall be limited to claims arising under the workers compensation policy only. 2• Commercial General Liability Commercial General Liability with limits of $2,000,000 per occurrence for bodily injury, amage. Agregate Policy minimum of $4,000,000 will include coverage for, but is not limited to, Premises-Operationpersonalls1 Broad Foury andrrm operty Contactual L ability, Broad Form Property Damage, Products and Completed Operations, Personal Injury, Use of Contractors and Subcontractors, and Explosion Collapse and Underground (XCU) coverage. A general aggregate loss limit per project endorsement will also be required. Coverage under this policy shall be on an "occurrence" basis. Products and Completed Operations coverage shall be maintained for ten years after the date of Substantial Completion. 3• Commercial Auto Liability Automobile Liability Insurance with a coverage limits of $2,000,000 Combined Single Limit. Coverage shall include all owned, hired, and non -owned vehicles used in performance of the proposed contract. The combined coverage limits of this insurance shall include bodily injury (including death) and property damage 4. Excess Liability Excess Liability coverage with a limit of $50,000,000 per occurrence/$50,000,000 aggregate, to follow form of the Design/Builder's Commercial General Liability, Employers Liability and Automobile Liability policies. 5. Pollution Liability Design/Builder shall maintain Pollution Liability covering the Design/Builders liability for bodily injury, property damage and environmental damage resulting from pollution and related cleanup costs incurred, arising out of the work or services to be performed under this contract. Coverage shall be provided for both work performed on site, as well as during the transport of any hazardous materials. Limits of $2,000,000 shall be provided. 6. Contractor's Professional Liability Design/Builder shall provide and maintain Professional Liability coverage with limits of $3,000,000 each claim/$3,000,000 annual aggregate, issued by an insurance carrier approved in advance by Owner and licensed. or otherwise authorized as a surplus lines insurer, to provide such coverage in Texas to insure from and against all negligent acts, errors, and omissions in the professional services performed by Design/Builder, its agents, representatives, employes, Subcontractors and/or Subsubcontractor;sprovided, however, that Architect shall supply Professional Liability insurance separately and independently of Design/Builder. This coverage shall provide full prior acts coverage or a retroactive date not later than the date the services are first performed by or for Design/Builder in connection with the Project. This insurance shall be maintained until all claims arising out of the Work are barred by applicable statutes of limitation or repose. The Owner and all Indemnitees shall be provided additional insured status on the CCIP General Liability and Excess Liability policies. Additional insured status will also apply to the Contractor's Pollution Liability and Auto Liability Policies provided by the Design -Builder. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design Builder— Exhibit "D" Page 1 COVERAGES REQUIRED OF DESIGN -BUILDER, SUBCONTRACTORS, SUBSUBCONTRACTORS ANO MATERIAL SUPPLIERS FOR NON-CCIP AND OFF-SITE EXPOSURES Design -Builder must provide coverages asset forth below for off-site work or Work not covered by the CCIP Subcontractors at all tiers shall be required to provide the coverages set forth in the Subcontract Attachment A and the Insurance Manual for the CCIP, which is attached to this agreement as Exhibit G. The insurance coverages (with the policy limits) require dare as follows : Insurance Policy Limits WorkersCompensation/Employers' Liability Insurance Statutory/$1,000,000, $1,000,000, $1,000,000 Commercial General Liability ("CGL") $1,000,000 each occurrence/$2,000,000 annual general aggregate/$2,000,000 products -completed operations aggregate Coverage shall be primary and non-contributing with any other insurance available to Owner. Automobile Liability $1,000,000 each accident Excess Liability $5,000,000 each occurrence/combined aggregate In excess of limits specified for Employers Liability, Commercial General Liability and Automobile Liability. Pollution Liability $1,000,000 per occurrence/$ 1,000, 000 annual aggregate (if coverage is on an occurrence policy form) and $1,000,000 per claim/$1,000,000 annual aggregate (if coverage is on a claims made policy form) Coverage shall be provided for a minimum of five (5) years following Substantial Completion. Construction Equipment Each Subcontractor, Subs ubcontractor, vendor and supplier providing work shall provide their own insurance coverage for all construction equipment, tools, apparatus, machinery, scaffolding, hoists, forms, staging, shoring and similar items ("Construction Equipment"). This coverage shall include an endorsement waiving the insurers right of subrogation against the Design/Builder, Owner and Development Manager. Owner and Indemnitees as defined in the Agreement shall be included as additional insureds on general liability policies using ISO Additional Insured Endorsements CG 2010 07 04 "Additional Insured - Owners, Lessees or Contractors - Scheduled Person or Organization" and Form CG 20 37 07 04 "Additional Insured - Owners, Lessees or Contractors - Completed Operations" (or endorsements providing equivalent coverage). The CGL policy shall provide for full separation of insureds and shall not include any insured v. insured exclusions or limitations. The Owner and Indemnitees shall also be added as additional insureds to the contractors pollution liability and auto liability policies. Design -Builder shall furnish to Development Manager and Owner, certificates of insurance giving evidence that the coverages required are in force. Policies shall be required to give Owner and Development Manager not less than thirty (30) days prior written notice in the event of cancellation or non -renewal. At Owner or Development Manager's written request, insurance certificates for Subcontractors and parties enrolled in the CCIP will be provided by Design -Builder. Owner may waive or otherwise modify the coverages to be provided by individual Subcontractors. Subsubcontractors, vendors or suppliers upon written application by Design -Builder in advance of the Subcontractor, consultant, vendor or supplier beginning any work on the Project. No modification will be enforceable if not provided by Development Manager in writing. All policies required, except Workers Compensation and professional liability, shall be endorsed to include waivers of subrogation in favor of Owner. Insurance policies must be placed with carriers having an A.M. Best's Guide rating of A minus VII or better. Subcontractors and Subs ubcontractors , performing any Work on the Project shall fully comply with the requirements of Design/Builders CCIP and any administrative materials in support thereof. BUILDER'S RISK: 1. GENERAL: As per Article 11.5 of this Agreement, Builder's Risk coverage shall be purchased by the Design/Builder. 2. INSTALLATION FLOATER/BOILER AND MACHINERY. Within the Builder's Risk Policy, Design/Builder shall provide insurance to cover machinery and equipment of all kinds during transit, installation and testing at the Project. Such insurance shall provide coverage on an "All Risk" basis from any external cause not otherwise excluded from the policy, door to door, irrespective of conveyance, with limits set to be the maximum any one shipment inclusive of freight. Critical items refers to cargo that, if damaged by a peril insured against. might cause a delayed start-up to the project because of the length of time required to replace or repair an entire item. Coverage shall start when the items to be installed are transported to Project and shall remain in place until Substantial Completion. This policy shall contain an endorsement that the policy is primary to any other insurance available to Owner with respect to claims arising under this Agreement. The Builders Risk and Installation Floater insurance shall include as additional named insureds the Owner, Owners Representative, Development Manager, Bond Trustee, Design/Builder, Subcontractors and Suhci jhrnn+rn,+-- Design-Build Agreement and General Conditions Between Owner, Development Manager and Design, Builder — Exhibit "D" Page 2 INSURANCE REQUIREMENTS TO THE SUBCONTRACT AGREEMENT BETWEEN DPR CONSTRUCTION, A GENERAL PARTNERSHIP AND This Attachment is incorporated into the above referenced Subcontract between the parties, as the parties' desire to amend said document. If the Prime Contract imposes additional or higher standards, Subcontractor shall meet those as well Where a Controlled ked in the Prime Contract or elsewhere in the Subcontract Documents, the Insurance Requirements in Insurance Program ("CIP") is spec this Attachment A shall not apply to coverages supplied by the CIPbut shall apply to coverages which Subcontractor is required to carry outside the coverage of the CIP. In the event of any conflict, inconsistency or ambiguity between the provisions of this Attachment A and the Prime Contract, the more stringent, greater and or broader Subcontractor insurance requirements, limits, and coverages shall govern Immediately send a copy of this information to your insurance broker for compliance. 1.0 Certificates of Insurance Prior to Work commencing under this Subcontract, Subcontractor shall furnish to DPR certificates of insurance and attach all required policy endorsements providing additional insured coverage and permitting waiver of subrogation, as evidence of insurance required herein. Renewal certificates shall be provided to DPR, prior to expiration of the policy(ies). The certificates are to be signed by a person authorized by the insurer(s) to bind coverage on their behalf. All policies shall include that there will be no cancellation, suspension, non -renewal, or reduction of coverage without thirty (30) days prior written notice to the Subcontractor. Subcontractor shall provide DPR with written notification of such cancellation, non -renewal, or modification no later than five (5) days after receipt of insurer's notice so that DPR has had at least twenty-five (25) days' notice before the policy is modified or cancelled. In lieu of the Subcontractor notification process to DPR for written notice of cancellation, non -renewal, or modification, DPR will accept a policy endorsement issued by each insurer providing agreement to issue thirty (30) days prior written notice of cancellation or modification direct to DPR. If Subcontractor fails to give such notice to DPR or DPR is subject to damage or a claim because the insurance required by this Subcontract is not in effect or no longer complies with the requirements of this Subcontract, then Subcontractor shall indemnify and defend Owner, Owner's Indemnitees and DPR against such damage or claim to the extent not covered by Subcontractor's insurance. Receipt by DPR of a non -conforming certificate of insurance or policy without objection, or DPR's failure to collect a certificate of insurance shall not waive or alter Subcontractor's duty to comply with the insurance requirements. 2.0 Mandatory Insurance Coverage Subcontractor shall, at its own expense, maintain in effect at all times during the performance of the Work under the Subcontract not less than the following coverage and limits of insurance. The coverage and limits set forth below are the minimum acceptable to DPR. In specifying minimum Subcontractor insurance requirements, DPR does not represent that such insurance is adequate to protect Subcontractor from loss, damage or liability arising from its work. Subcontractor is solely responsible to inform itself of types or amounts of insurance it may need beyond these requirements to protect itself. Notwithstanding anything to the contrary in the Subcontract or in this Attachment A, if the Subcontractor has procured any insurance coverage and/or limits (either primary or on an excess basis) that exceed the minimum acceptable coverage and/or limits set forth in this Attachment A or elsewhere in the Subcontract, the broadest coverage and highest limits actually afforded under the applicable policy(ies) of insurance shall be considered the coverage and limits that are required by this Agreement and such coverage and limits shall be provided in full to the additional insureds and indemnified parties under this Agreement. The Parties expressly intend that the provisions set forth in the Subcontract and in this Attachment A shall be construed as broadly as permitted to be construed by applicable law to afford the maximum insurance coverage available under the Subcontractor's insurance policies. 2.1 Workers' Compensation and Employer's Liability. As required by any applicable law or regulation. Employer's Liability/Stop Gap Insurance shall be provided in amounts not less than. $1,000,000 each accident for bodily injury by accident $1,000,000 policy limit for bodily injury by disease $1,000,000 each employee for bodily injury by disease If there is an exposure of injury to Subcontractor's employees under the U. S. Longshoremen's and Harbor Workers' Compensation Act, the Jones Act or under laws, regulations or statutes applicable to maritime Design -Build Agreement and General Conditions Between Owner, Development Man Design/Builder— Exhibit "D" ager and Page 3 employees. coverage shall be included for such injuries or claims. Subcontractor shall voluntarily provide workers' compensation coverage for proprietors, partners, or others not statutorily required to maintain workers' compensation insurance. 2.1 A Leased Employees Use of leased employees by Subcontractor is expressly prohibited without DPR's written permission. If permitted by DPR. Subcontractor shall: 2.1.1.1 Provide DPR with a complete copy of its Agreement with the Leasing Company; 2.1 1.2 Require that Leasing Company provide workers' compensation, employers' liability and commercial general liability with coverage limits in amounts no less than Subcontractor insurance requirements for the same coverages. 2.1.1.3 Require that Leasing Company provide Alternate Employer Endorsement naming DPR as alternate employer on Leasing Company's workers' compensation policy. 2.1.1.4 Require that Leasing Company add DPR as an additional insured on its commercial general liability insurance policy subject to the same terms as Subcontractor insurance requirements, including primary and non-contributory wording. 2.1.1.5 Require that Leasing Company provide waiver of subrogation in favor of DPR on both Leasing Company's workers' compensation and commercial general liability insurance policies. 2.1.1.6 Provide DPR with a copy of the Leasing Company's certificate of insurance, with endorsements, evidencing the required coverage. 2.2 Commercial General Liability. Covering operations by or on behalf of Subcontractor, with coverage on an occurrence basis, and shall be subject to terms no less broad than the Insurance Services Office ("ISO") Commercial General Liability Form CG0001 (2004 or later edition) Coverage shall include, but not limited to, liability arising from premises, operations, independent contractors, products -completed operations including construction defect, contractual liability, personal injury and advertising injury. The commercial general liability coverage shall be endorsed to include terms no less broad than ISO form CG 2274 (Limited Contractual Liability Coverage for Personal and Advertising Injury). There shall be no limitations or exclusions of coverage beyond those contained in the ISO Commercial General Liability Form. The commercial general liability policy shall not be issued under a "claims -made" policy form or a "modified occurrence" Policy form. In addition to procuring and maintaining commercial general liability insurance for the duration of the Work, Subcontractor agrees to continue to procure and maintain products -completed operations liability insurance coverage forthe applicable period of statutory limitation of claims (or statute of repose, if applicable) after the Project completion. All required terms and conditions of coverage shall be maintained during this completed operations period, including the minimum required coverage limits and the requirement to provide additional insured coverage for completed operations. 2.2.1 Minimum Limits of—Liability — Refer to Appendix 1—Trade CategM List Cat o I II. and III Trades $2,000,000 each occurrence Bodily Injury and Property Damage $2,000,000 Personal and Advertising Injury $2,000,000 aggregate for Products - Completed operations $2,000,000 general aggregate Category IV Trades $1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury $2,000,000 aggregate for Products - Completed operations $2,000,000 general aggregate 2.2.2 Per Proiect General Aggregate The policy must have an endorsement providing that the general aggregate limit applies separately to this project. If a per -project aggregate is not provided, the total aggregate limit of liability shall be $5,000,000. 2.3 Automobile Liability. Covering all owned, hired, and non -owned automobiles in limits of liability not less than $2,000,000 each accident, combined single limit. Coverage shall include liability for bodily injury and property damage arising from the use or operation of any auto, including those owned, hired or otherwise operated or used by or on behalf of Subcontractor. The coverage shall be subject to terms no less broad than ISO Business Auto Coverage Form CA 0001 (1 990 edition or later). 2.4 Subcontractor's Equipment/Property Insurance. Subcontractor will provide full coverage for damage to all of Subcontractor's own equipment, property, and tools used in the Work. 3.0 Other Required Insurance Coverage where Exposure Exists The following insurance shall be required by the Subcontractor and sub -subcontractors to the extent that such activities exist in the performance of Work under this Subcontract. Limits of liability for policies listed below shall supersede the limits listed under Section 2.2.1: 3.1 Watercraft Liability and Indemnity Insurance Should any of the Subcontractor's Work be performed on or over navigable waterways or involves the use of any vessel, limits for this coverage are to be provided and approved by DPR in writing. Design -Build Agreement and General Conditions Between Owner, Development Manager aid Design/Builder —Exhibit "D" Page 4 3.2 Aircraft Liability, Should the Subcontractor's Work include using any owned, leased, chartered, or hired aircraft of any type (including unmanned aerial vehicles and helicopters) on the Project, minimum limits in an amount not less than $10,000,000 per occurrence including Passenger Liability (for other than unmanned aerial vehicles) shall apply. Coverage shall include Aircraft Damage and Slung Cargo. 3.3 Railroad Liability. If Work is performed within 50 feet of a railroad right-of-way or affecting railroad property, including but not limited to tracks, bridges, tunnels, and switches, Subcontractor's general liability coverage shall be endorsed to include terms no less broad than ISO form CG 2417(Contractual Liability Railroads). Furthermore, at DPR's option and when required by the Owner or the railroad, Railroad Protective Liability insurance shall be procured. Limits for Railroad Protective Liability insurance are to be provided and approved by DPR in writing. 3.4 Crane Services Liability. Should Subcontractor's Work include providing crane services, then the commercial general liability policy shall be amended to apply with minimum limits of liability to insure against bodily injury and property damage arising from such crane operations. The policy shall include coverage for Rigger's Liability and shall not exclude coverage for damage to property being lifted. If not included in required limits specified below, Rigger's Liability shall be provided in limits not less than the maximum value of property lifted at any one time. DPR will accept a separate Rigger's Liability policy in lieu of Subcontractor's provision of this coverage under its Commercial General Liability policy. $10,000,000 each occurrence Bodily Injury and Property Damage $10,000,000 Personal and Advertising Injury $10,000,000 aggregate for Products - Completed operations $10,000,000 general aggregate Subcontractor's coverage for crane services may be provided either by Subcontractor's own policy(ies), or by the policy(ies) of a lower tier contractor providing such crane services for Subcontractor. The policy shall include a "Per Project General Aggregate" pursuant to Section 2.2.2. 3.5 Professional Liability. If Subcontractor or any sub-subcontractor of any tier is providing any professional services, including but not limited to, design, architecture, engineering, testing, surveying, or design/build services on the Project, Subcontractor shall provide Professional Liability insurance with minimum limits of $2,000,000 per Claim / Aggregate. If coverage is issued on a claims-made form, such coverage shall apply with a retroactive date to reflect the date in which professional services commenced under this Subcontract or else include an Extended Reporting Period for the equivalent number of years. Subcontractor agrees to continue to procure and maintain professional liability insurance coverage meeting these requirements for the applicable period of statutory limitation of claims (or statute of repose, if applicable) after the Project completion. If Subcontractor's Work includes environmental, engineering, or consulting services involving Hazardous Materials, coverage shall not exclude such services. 3.6 Contractor's Pollution Liabili 3.6.1 Microbial Matter. Mold Fungi- & Bacteria Refer to A pendix 1—Trade CateqoIY List . 3.6.1.1 Category I Trades — If Subcontractor's commercial general liability policy has an exclusion for losses due to microbial matter, including molds, fungi or bacteria, minimum limits of liability of $2,000,000 per occurrence and $2,000,000 aggregate shall apply to include coverage for mold, fungus, or bacteria. 3.6.1.2 Category II Trades - If Subcontractor's commercial general liability policy has an exclusion for losses due to microbial matter, including mold, fungi or bacteria, and it or one of its sub- subcontractors are performing work that is associated with keeping moisture out of the building, work that penetrates the building enclosure, or work with liquid conveying piping systems inside the building, minimum limits of liability of $2,000,000 per occurrence and $2,000,000 aggregate shall apply to include coverage for microbial matter, including mold, fungus or bacteria. 3.6.1.3 Category III & IV Trades — Subcontractor is not required to provide Microbial Matter, Mold, Fungi, or Bacteria Coverage. 3.6.2 Environmental Services. If Subcontractor's Work or its sub-subcontractor's work includes Environmental Services, contractor's pollution liability insurance shall be provided by Subcontractor on an occurrence basis, with limits of not less than $2,000,000 per occurrence and $2,000,000 aggregate or as specified by Owner. "Environmental Services" means any contact with a Hazardous Material, including abatement, removal, remediation, transporting, or disposal of a Hazardous Material or working in areas where contact with such Hazardous Materials may take place. "Hazardous Material" means asbestos, asbestos containing material, lead (including lead-based paint), PCB, silica, silica dust, molds and microbial matter, any other chemical, material, or substance subject to regulation as a hazardous material, hazardous substance, toxic substance, or otherwise, under applicable federal, state, or local law; and any other chemical, material, or substance that may have adverse effects on human health or the environment. 3.6.3 Automobile Pollution Liability. If Subcontractor or its sub-subcontractors of any tier haul or otherwise transport Hazardous Materials, automobile liability limits of at least $2,000,000 combined single limit each accident including the broadened pollution liability coverage endorsement (CA 99 48) and MCS 90 endorsement. In lieu of this coverage, DPR shall consider, as an alternate, a transportation coverage endorsement extension from Subcontractor or its sub-subcontractors' respective contractor's pollution liability policy to cover this requirement and Subcontractor shall provide copies of such endorsements and policy for review and approval by DPR. Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder— Exhibit "D" Page 5 3.6.4 If coverage required in Section 3.6 is issued on a claims-made form, such coverage shall apply with a retroactive date to reflect the date in which Work commenced under this Subcontract. Coverage shall also be maintained continuously for the applicable period of statutory limitation on claims after the Project completion or else include an Extended Reporting Period for the equivalent minimum number of years. 4.0 Acceptance by DPR The required insurance shall be subject to the approval of DPR. Such insurance shall be maintained under forms of policies and from companies satisfactory to DPR and Owner. The insurance company must have a financial rating of at least A-VII as defined by A.M. Best Company and must be authorized to transact business in the state where Work is being performed. Certified copies of policies, including all endorsements, shall be provided to DPR within ten (10) days of a request. Any acceptance of policies or certificates of insurance by DPR, or failure of Subcontractor to provide policies or certificates of insurance, shall in no way limit or relieve Subcontractor of its duties and responsibilities in this Agreement. 5.0 Additional Insured Endorsement and Primary Insurance Clause. Subcontractor agrees to name Owner and DPR, DPR's joint venture partner and joint venture, if one exists, including their officers, partners, agents, employees, affiliates, parents and subsidiaries, as an additional insured under the Subcontractor's commercial general liability insurance policy and all other liability insurance policies with the exception of the professional liability policy, with respect to liability arising out of activities, "operations" or "work" performed by or on behalf of Subcontractor, including DPR's general supervision of Subcontractor, and products and completed operations of Subcontractor. Further, Subcontractor agrees to also name Owner and its subsidiaries and affiliates, and their respective directors, officers, employees and agents. and other entities, if any, DPR is obligated to name as additional insured pursuant to the provisions of the Prime Contract (hereinafter referred to as the "Additional Insureds"). To the maximum extent permitted by law, the coverage provided to the Additional Insureds under the commercial general liability policy shall be provided by a policy provision or an endorsement which is as least as broad as CG 2010 07 04 (ongoing operations) in combination with CG 20 37 07 04 (completed operations). Notwithstanding the foregoing. Subcontractor shall provide ISO Form B - CG 2010 11 85 or equivalent coverage where available from its carrier. The additional insured coverage for completed operations shall be maintained during the applicable period of statutory limitation on claims (or statute of repose, if applicable). If an policycompance with this Attachment A states that the insurance afforded to an Additional Insured will not be broader than hatorequiirre�d by contract or words of similar meaning, the Subcontractor agrees that nothing in this Attachment A is intended to restrict or limit the breadth of such insurance. Samples of Policy Endorsements are included at the end of this Attachment. Such policy provision(s) or endorsement(s) shall further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the Additional Insureds. The parties further agree that the obligations set forth and arising under this Section 5.0 are separate and independent of the obligations set forth and arising under Section 15 of the Subcontract and are not intended to mirror one another in terms of the scope of the obligations created. 6.0 _Waiver of Subrogation Subcontractor shall waive, and shall require (by endorsement or otherwise) all its insurers to waive subrogation rights against DPR and other Additional Insureds for losses paid under the insurance policies required by this Subcontract or other insurance applicable to the Subcontractor or its sub-subcontractors. The waiver shall apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance maintained by the Subcontractor or its sub-subcontractors. Where permitted by law, Subcontractor shall require similar written express waivers subrogation and insurance clauses from each of its subcontractors of every tier. If the policies of insurance referred to in this paragraph require an endorsement to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed. Samples of policy endorsements are attached at the end of this Attachment. Subcontractor agrees to hold harmless and indemnify DPR and other Additional Insureds for any loss or expense incurred as a result of Subcontractor's failure to obtain such waivers of subrogation. 7.0 Umbrella/Excess Liability. The limits required by this Attachment A can be met by either providing a primary policy or in combination with umbrella / excess liability policy(ies). To the extent that umbrella/excess coverage is used to satisfy the limits of coverage required hereunder, the terms of such coverage shall be follow form to, or otherwise at least as broad as, the primary underlying coverage, including amending the "other insurance" provisions as required so as to provide additional insured coverage on a primary non-contributory basis. 8.0 Deductibles/Self Insured Retentions. Any self-insured retention or deductible in excess of $10,000 must be declared and is subject to DPR's approval. Funding of deductibles and/or self-insured retentions maintained by Subcontractor shall be the sole responsibility of Subcontractor, including any deductible or self-insured retentions applicable to coverage afforded to DPR or other required Additional Insureds. 9.0 Insurance Requirements for Sub subcontractors. The Subcontractor shall ensure that its sub-subcontractors of any tier shall procure and maintain insurance that complies with the requirements set forth in this Attachment A, including the additional insured, primary and non-contributory and waiver of subrogation requirements. Copies of the certificate(s) must be provided prior to the sub-subcontractors entering the site. 10.0 Subcontractor's duty to provide the insurance coverage set forth in this Subcontract is severable from its indemnification obligations of Section 15 of this Subcontract. Nothing in these insurance requirements shall be deemed to limit Subcontractor's liability under this Subcontract. The insurance requirements are set forth as minimum amounts and shall not be construed to relieve Subcontractor for liability in excess of such coverage, nor shall it preclude DPR from taking such actions, as is available to DPR, under any other provisions of this Subcontract. 11.0 Failure of Subcontractor to maintain the required insurance shall constitute a material breach entitling DPR to terminate the Subcontract for default, withhold payment, and/or purchase the required insurance at Subcontractor's expense. Any delays in the completion of the Work due to Subcontractor's failure to obtain or maintain insurance shall be treated as delay due to Subcontractor's breach of contract. Design -Build Agreement and General Conditions Between Owner, Dei elopment Manager and Design/Builder— Exhibit "D" Page 6 12.0 Builders Risk (Property in the Course of Construction). To the extent required by the Prime Contract, DPR and Subcontractor waive all rights against each other and against all other subcontractors and Owner for loss or damage to the extent reimbursed by Builder's Risk or any other property or equipment insurance applicable to the Work, except such rights as they may have to the proceeds of such insurance. If the policies of insurance referred to in this Section require an endorsement or consent of the insurance company to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed or obtain such consent. Upon written request of Subcontractor and if available to DPR, DPR shall provide Subcontractor with a copy of the Builder's Risk Policy of insurance or any other property or equipment insurance in force for the project and procured by DPR. Subcontractor shall satisfy itself as to the existence and extent of such insurance prior to commencement of Subcontractor's Work. If Builder's Risk insurance or any other property or equipment project -specific insurance purchased by Owner or DPR provides coverage to Subcontractor for loss or damage to Subcontractor's Work, Subcontractor shall be responsible for the insurance policy deductible amount applicable to the loss or damage to Subcontractor's Work and/or the damage to other work caused by Subcontractor. If not covered under the Builder's Risk policy of insurance or any other property or equipment insurance required by the Agreement, Subcontractor shall procure and maintain at its own expense insurance for all such other property and equipment (whether owned, leased or rented) and any portions of Subcontractor's Work stored off the site or in transit. If Owner or DPR has not purchased Builder's Risk or equivalent insurance including the full insurable value of Subcontractor's Work, then Subcontractor may procure such insurance at its own expense as will protect the interests of Subcontractor and its sub -subcontractors in the Work. Such insurance shall also apply to any of Owner's or DPR's property in the care, custody, or control of Subcontractor. If there is a loss insured under the Builder's Risk policy, Subcontractor is responsible for providing all documentation required or requested by the insurance company or companies issuing the Builder's Risk policy in order to substantiate Subcontractor's claim, and Subcontractor is bound by any adjustment made between DPR or Owner and the insurer(s). DPR's liability to Subcontractor for any such loss is in all cases limited to amounts actually paid by the insurer(s) for Subcontractor's claims. Nothing in this paragraph affects any provisions regarding coverage or waivers of subrogation in the Subcontract Documents Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder—Exhibit "D" Page 7 Insurance Requirements by Trade Trade Category I Full Insurance & Mold Reauiremen Infection Control Tilt -Up Concrete Glass -Fiber -Reinforced Concrete Stone/Marble (Adhered) Stone/Marble (Mechanically Fastened) Expansion Control Dampproofing and Waterproofing Exterior Insulation and Finish Systems (EIFS) Metal Roof and Wall Panels Roofing Flashing and Sheet Metal Joint Sealants Entrances and Storefronts Automatic Entrance Doors Windows - Wood & Vinyl Skylights Glass & Glazing (Exterior) Trade Category II Full Insurance & Conditional Mold Reauirements Lath & Plaster Tile Louvers & Vents Environmentally Controlled Rooms Clean Rooms Pre -Engineered Structures Hydraulic Elevators and Lifts Process Piping Medical Gases Fire Protection Pre -Action Fire Suppression Plumbing Heating Ventilating Air Conditioning Electrical Instrumentation & Controls Building Systems Controls Site Remediation & HazMat Abatement Groundwater Treatment Systems Demolition Dewatering Tunneling, Boring and Jacking Fountains & Water Features Landscaping & Irrigation Cast -in -Place Concrete (Contractors) Pneumatically Placed Concrete (Shotcrete) Sand & Water Blasting Precast Concrete Cementitious Decks and Underlayment Trade Category III Full Insurance & No Mold Reguir ments Testing & Inspection Services Const. Elevator/Hoist/Cranes Scaffolding Construction Aids Traffic Control Jobsite Security Guard Service Survey & Layout Machinery & Equipment Moving (Rigging) Shoring and Underpinning Earthwork Soil Stabilization & Erosion Control Soil Treatment Driven Piles Site Utilities Site Utilities (Dry) - Electrical & Tel/Data Traffic Signs & Signals Asphalt Concrete Paving Paving Specialties Concrete Unit Pavers Athletic and Recreational Surfaces Fences and Gates Retaining Walls Structural Excavation & Backfill Concrete Formwork (Non -Skin) Concrete Accessories Concrete Reinforcement Post -Tensioning Concrete Pump Concrete Finishing Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder — Exhibit 'D" Page 8 Trade Category III Full Insurance & No Mold Requirements .i Granite Countertops Welding Structural Steel Structural Steel Erection Metal Joists/Trusses Metal Deck Channel Frame Strut Miscellaneous Metals Metal Stairs & Ladders Handrails and Railings Ornamental Metal Finish Carpentry & Millwork Plastic Fabrications Traffic Coatings Building Insulation Fireproofing Fire stopping Metal Doors, Frames & Hardware Doors, Frames & Hardware - Installation Doors - Packaged (Total Doors) Wood and Plastic Doors Specialty Doors Coiling Doors and Grilles Acoustical Ceilings Floor Treatment & Coatings Specialty Flooring Wood Flooring Resilient Flooring Carpet & Resilient Flooring Acoustical Wall Treatment Special Coatings (Epoxy Coatings) Intumescent Fireproofing Trade Category IV Minimum Insura ice & No Mold Reguireme is Temporary Facilities and Controls Jobsite Trailer Rental & Lease Temporary Barriers, Enclosures & Product Delivery Requirements Equipment Suppliers Cleaning Site Furnishings Pavement Markings Concrete Ready Mix Lumber Suppliers Prefabricated Structural Wood Roof Accessories Access Doors and Panels Specialties Chalkboards & Markerboards Access Flooring Fabric/Canvas Awnings Canopies Operable Partitions Storage Shelving Sun Control Devices Window Washing Equipment Theater and Stage Equipment Retail Fixtures & Showcases Loading Dock Equipment Athletic, Recreation, & Therapy Equipment Laboratory Equipment Lab Equipment Salvage Medical Equipment Lab & Medical Casework Systems Manufactured Wood Casework Furniture Multiple Seating Radiation Protection Tennis Court Construction Escalators and Moving Walks Non -Hydraulic Elevators and Lifts Conveyors Chutes Pneumatic Tube Systems Hoists and Cranes High Purity QAQC Testing, Adjusting and Balancing Communications Fire Alarm Systems Security Systems Audio Visual System Signage Fire Extinguishers/Cabinets Lockers Fencing Postal Specialties Audio -Visual Equipment Parking Control Equipment Rugs and Mats Window Treatments Toilet Partitions & Compartments Cubicle Track & Curtains Flagpoles Wall & Comer Guards Wire Mesh Partitions Telephone Specialties Toilet & Bath Accessories Shower & Tub Door Design -Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder— Exhibit "D" Page 7 ISO I Commercial General Liability Forms 107/01/04 POLICY NUMBER: CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies insurance provided under the following COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): DPR Construction, A General Partnership, its joint venture and joint venture partner, where applicable, its/their officers, owners, employees, agents, parents, partners, subsidiaries and affiliates; the Owner and any person or organization that Owner requires by written contract and its subsidiaries and affiliates, and their ive directors, officers, employees and agents. Information required to this Location And Description Of Completed Operations' not shown above, snown in the Declarations. Section II -- Who Is An insured is amended to include as an additional insured the person(s) or organization(s) shown in the location designated and with rdepect to s bedlinbth schedule for yofjthis endorsement performed fored, in whole or tthat additional insured and Iur work" ncl d d in the the "products -completed operations hazard" G 20.37.07 04 ©ISO Properties, Inc. © ISO Properties, Inc., 2004 Design -Build Agreement and General Conditions Between Owner, Development Manager and Design.Builder—Exhibit "D" Page 8 ISO I Commercial General Liability Forms 107/01/04 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 10 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following. COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Ornani72tinnrcl- DPR Construction, A General Partnership, its joint venture and joint venture partner, where applicable, its/their officers, owners, employees, agents, parents, partners, subsidiaries and affiliates; the Owner and any person or organization that Owner requires by written contract Location(s) Of Covered Operations owner and its subsidiaries and affiliates, and their respective directors, officers, employees and agents. Information required to completethis Schedule,if not shown above, will be shown in the Declarations.��J A. Section II —Who Is An Insured is amended to include as an additional insured the person(s) or organizations) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part,by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on yourbehalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after. 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered been completed; or operations has 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Design -Build Agreement and General Conditions Between Owner, Development Manager and Design: Builder— Exhibit "D" Page 9 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 03 13 2nd Reprint Effective April 1 1984 Advisory WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule Notes: DPR Construction, A General Partnership, its joint venture andjoint venture partner, where applicable, its/their officers, owners, employees, agents, parents, partners, subsidiaries and affiliates; the Owner and any person or organization that Owner requires by written contract Owner and its subsidiaries and affiliates, and their respective directors, officers, employees and agents Design -Build Agreement and General Conditions Between Owner, Dei elopment Manager and DesigrL$uilder— Exhibit "D" Page 10 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following COMMERCIAL GENERAL LIABILITY COVERAGE PART Name of Person or Organization: SCHEDULE DPR Construction, A General Partnership, its joint venture and joint venture partner, where applicable, its/their officers, owners, employees, agents, parents, partners, subsidiaries and affiliates; the Owner and any person or organization that Owner requires by written contract Owner and its subsidiaries and affiliates, and their respective directors, officers, employees and agents (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV - COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products -completed operations hazard". This waiver applies only to the person or organization shown in the Schedule above. 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