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Ordinance No. 13,880ORDINANCE NO. 13,880
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 AMENDED AND RESTATED DESIGN-BUILD AGREEMENT
WITH GARFIELD PUBLIC/PRN ATE 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 Amended and Restated 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 NOll 00
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 N0/1 00 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 after its passage by the
City Council of the City ofBaytown .
INTRODUCED, READ and PASSED by the afftrmative vote o
Baytown this the 27°1 day of September, 2018 .
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., C y ttorney
\\cobfsO I \lega i\Karen\Fi les\City Council\ · ances\20 18\September 27\DBA .doc
Exhibit "A"
AMENDED AND RESTATED
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
RESPONSIBILITIES
13. DISPUTE RESOLUTION
14. MISCELLANEOUS PROVISIONS
15 . EXISTING CONTRACT DOCUMENTS
AMENDMENT (Initial Proposed GMP)
AMENDMENT (Final GMP)
DESIGN/BUILDER'S
This Agreement has i mportant legal and insurance consequences . Consultation with an attorney and i nsurance
consultant is encouraged with respect to its completion or modification .
AMENDED AND RESTATED 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 Maxi mum Price Opti on)
AGREEMENT
This Agreement is made this __ day of ____ in the year 2018 , by and among the
"DEVELOPMENT MANAGER"
and the
"DESIGN/BUILDER"
and the
"OWNER"
Garfield Public/Private LLC
14785 Preston Road
Suite 480
Dallas, TX 75254
DPR Construction, a General Partnership
3200 Southwest Freeway
Suite 1550
Houston, Texas 77027
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
WHEREAS, Development Manager, Design /Builder, and the City previously entered into that certain
Des i gn-Build Agreement dated August 9, 2018 , (the "Or i ginal Agreement"); and
WHEREAS , the parti es design to substitute Baytown Municipal Development District, a political
~ubdivision of the State of Texas and of the City of Baytown for Cedar Trin ity Corporation as the owner of
the Hotel (as defined herein) and continue the work begun pursuant to the Ori ginal Agreement wh i ch shall
remain in ful l force and effect, except as amended and restated herein .
for services i n connection with the following :
"PROJECT"
The Project i s the design and construction of a coord i nated unified development consisting of three
components: (1) public, city-owned meeting, ballroom and convention center facilities , common areas and
related (collectively the "City Facilities" or the "City Facilities Component"). (2) an upscale , multi story
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 Baytown Municipal Development District
(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
AMENDED AND RESTATED 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 /Bui lder, 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, Owne r 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/Bu i lder 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 initia l GMP is based on the following documents, which shall become
attachments to this Amendment:
Attachment Description
No.
1 Detailed itemization of the GMP including the estimated Cost of the Work, o rganized by
specification division, with all design costs and construction trade categories, labor,
materials and equipment for the Work, Design/Builder's general conditions costs,
insurance and bonding costs, Subcontractor default insurance costs , professional staff
estimates, and other items that comprise the GMP.
2 A list of the drawings and specifications, including addenda, which were used in
preparation of the GMP.
3 A listing of the Design /Builder's Assumptions and Clarifications in preparation of the
GMP.
4 A list of allowances approved by Owner.
5 A list of alternates approved by Owner.
6 A list of unit prices.
7 A statement of Additional Services, if any.
8 The Project Schedule upon which the GMP is based particularly showing the inclusion
of the City Facilities and Parking Fac ilities Components construction within the overall
Pro ject Schedu le.
9 Confirmation of the various coverages to be supplied under the insurance program and
the limits of the policies as required in Article 11 .
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 w ithin 30
Days of the date of Substantial Completion of the Project subject to approved Change O r ders 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 dat es of Substantial and
Final Completion will be prepared subject to Section 3 .2.7(a) of the Agreement and may only be
adjusted i n 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 :
DPR Construction, a General Partnership
ATTEST: ________________________ _
BY : __________________________ _
PRINT NAME : ___________ _
PRINT TITLE : ----------------------
OWNER :
City of Baytown, Texas
ATTEST: BY : ________________ _
Name: ______________ _ Name: _____________ _
Title : ______________ _ Title: _______________ _
AMENDMENT NO . _, (FINAL GMP)
DATED ___ _
AMENDED AND RESTATED DESIGN -BUILD AGR EEMENT BETWEEN OWNER,
DEVELOPMENT MANAGER & DESIGN/BUILDER
Pursuant to Section 3.2 of the Agree m ent dated _______ , among
the Development M anager, Garfield Public /Private LLC
and the Owner, Cit y of Baytown , T exas
and the Design/Builder, DPR Construction , a General Pa rtn er ship ,
for the City Facilities Component and Parking Facilities Co mponent of the Project,
the Development M anager, Owner a nd Design/Bui l der desire to estab l ish a GMP for the Work. Therefore,
the Development M anager, Ow ner a n d Design/Builder agree as follows.
ARTICL E 1. FINAL GUARAN TEE D MAXI MUM PRICE
The Design/Builder's Final G MP for t h e W ork, including the Cost of t he W ork as defined in Article 8 and the
Design/Builder's Fee as set forth in Artic le 7, is dollars($ ).
The Des i gn/Bui lder guarantees that t h e Cost of the Work plus the Design /Builder's fee will not exceed the
Final GMP as defined in the Agree m e nt , 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:
Attachment Des cription
No .
1 Detailed itemization of the G M P including the estimated Cost of the Work, organized
by spe cification d ivisi o n, with a l l des i gn costs and construction trade categories,
labor, materials a nd equipme nt for the Work, Design/Builder's genera l c o nditions
costs , insurance and bonding costs, Subcontractor defa u lt insu ran ce costs,
professi o nal staff estimates, and other items that comprise the GMP.
2 A list of the dra win gs and specifications, including addenda , which were used in
preparat i o n of the GMP.
3 A listing of the Desig n/Builder's Assumptions and Clarifications in preparation of the
GMP.
4 A list of a l lowances approved by Owner.
5 A list of alte rnates approved by Owner.
6 A list of unit prices.
7 A statement of Ad d iti o nal Servi ces, if any;
8 T he Pro ject Sched u le upon w hich the GMP is based particularly showing the
inclusion of the City Fac i lities and Parking Facilities Components construction within
the overall Project Schedule
9 Confirmation of the various coverages to be supplied under the i nsurance program
and the limits of the policies as required in Article 11.
ARTICLE 2. DATES OF COMPLETION
From and after the date of this Amendment, the following dates apply:
Substanti al Completion of the City Fac i l ities and Parking Facilities Components shall be achieved
within __ Days after issuance of the approved "Notice to Proceed ", subject to approved Change
Orders as defined i n 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 o f the date of Substantial Completion of the Project subject to approv ed Change Orders as
defined in the Agreement, or as specified in Section 6.2.2 of the Agreement.
This Amendment i s subject to acceptance by Deve l opment Manager and Owne r, after which the Final
GMP and dates of Substantial and Final Completion may only be adjusted , if at a ll, i n 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:
DPR Construction, a General Partnership
ATTEST: ________________________ _
BY: ___________ __
PRINT NAME: _____________ __
PRINT TITLE : _______________ _
OWNER:
City of Baytown, Texas
ATTEST: BY : ____________________ __
PRINT NAME: _______ _
PRINT TITLE: ________ _
ARTICLE 1
DEFINITIONS
1.1 "Appl i cable 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 collectively 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 "Const r uction 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 oftime
afforded by this Agreement for the Substantial
Completion of the Work and the period of time afforded
by this Agreement for the Final Comp letion 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" m eans DPR Construction, a
General Partnership, and its permitted successors and
assigns , the entity engaged as the design/bu i ld contractor
for the Project.
1.18 "Design/Builder's
i ndividual named by
Design/Builder's behalf
Agreement.
Representative " means the
Design/Builder to act on
in the administrati on of this
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 Fac i lities 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
calcu l ated in accordance therewith, includes both the
Design/Builder's fee associated with the Design Phase and
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 3
the Design/Builder's fee associated with the Construction
Phase.
1.22 "Development
Public/Private LLC .
Manager" means Garfield
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.
1.25 "Extreme Weather" means those weath er 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 completi on 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/Bu i lder'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 Ag re ement.
1.32 "Hote l Component" means the Hotel portion of the
Project as defined in the "Proj ect" 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
t o the Hotel Component, as may be amended from time
to time.
1.36 "Hotel Owner " means Baytown Municipal
Development District, a political subdivision of the State
of Texas and the City of Baytown .
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
rig hts, moral (personal) rights, rights of publicity, trade
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Dev elopment Manager and
Design/Builder Page 4
secret rights , industrial design rights, and website and
internet domain rights . The Owner shall own all
Intellectual Property related to the City Faciliti es and
Parking Facilities Components.
1.38 "Master Development Agreement " means that
certain development agreement, dated September 13,
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 initiat Operator will be Interstate
Hotels & Resorts , Inc .
1.41 Intentionally Omitted
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 requ i rements
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.
1.49.1 "Schedule of Work " (sometimes herei n 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.
T he 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 t his Agreement.
1.53 "Subcontractor Default Insurance " or "SOl " 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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 5
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, faciliti es, 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 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 manufacturer's 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, superv1s1on ,
supplies, fixtures, vehicles, equipment, services , tools ,
materials, computers , utilities, items, documents and
other items required by the Contract Documents for the
City Facilities and Park i ng Facilities Components,
including design, to be performed or supplied , including
all services set forth in Se ct i on 2.5, all construction and
permitting required to re nder the City Facilities
Component and the Parking Facilities Component, and
every subcomponent thereof, operational and usable for
its intended purpose, provi ded , however, responsibi li ty
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 /Bui l der agree to proceed w ith
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 a re reasonably necessary to
perform this Agreement in an economical and timely
manner, including considerati on of design modificati ons
and alternative materials o r equipment that will permit
the Work to be construct ed within the Guaranteed
Maximum Price (GMP) and by the Substantial Completion
and Final Completi on Dates . The Design/Builder shall
cause the Architect and all design professionals to design
the Work in accordance w i th the GMP; however, the
Design/Builder may take reasonable actions necessary to
maintain the GMP includ i ng 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 Eng i neering, 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 be l ow, and to f urnish const r uction and
administration of the Work . Nothing in this Agreement or
any other Contract Document shall be construed or
i nterpreted to establish a fiduciary relationship between
t he Design/Builder and the Owner or any other party .
Owner and Development Manager agree that i n executing
t his Agreement and selecting a design/build p rocedure to
design 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 engineeri ng services
shall be procured from licensed, independent design
Amended and Restated Design-Build Agreement and General Conditions Between Owner, Development Manager and
Design /Builder Page 6
professionals retained by the Design/Builder or furnished
by licensed employees of the Des ign/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 provid ing 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 for the benefit of the Owner
and Development Manager and their officers and
employees as additional insureds (whe re applicable). in
each case in form and substance not less than is
customary for a project with a similar scope as the Work .
Furthermore, it is agreed that the Owner has reviewed the
insurance of the Architect and finds it to be acceptable It
is understood that the Owner, Development Manager and
Design/Builder are third-party beneficiaries under the
insura nce 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 and Development Manager,
and their 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 the i r own name; (iv) list the Owner
and the Development Manager along with their officers
and employees as additional insureds on policies
excluding Professional Liability and Workers
Compensation; ; and (v) otherwise comply with the other
requirements of this Agreement. The Architect may not
be changed by the Design/Builder witho ut 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 o ra l.
2 .4 CONTRACT DOCUMENTS The Contract
Documents consist of:
.1 The Sections of the Master Development
Agreement, attached hereto as Exhibit C and
made a part hereof, includi ng any amendments
or modifications thereto;
.2 The Sections of the Hotel Development
Agreement, includ ing 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 Des i gn/Builder's
GMP and its attachments;
.4 this Agreement and all Exh i bits 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 the reto.
In case of any inconsistency, conflict or ambiguity among
t he 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 w ith 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 acco rdance with Section
3 .8, and other services which are necessary to complete
t he City Facilities and Parking Facilities Components of
the Project in accordance with and reasonab ly inferable
from the Contract Documents.
ARTICLE 3
DESIGN/BUILDER'S RESPONSIBILITIES
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builde r Page 7
The Design/Builder shall be respons ib le for procuring the
design and for the construction of the Work consistent
with this Agreement and the Con tract 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
has provided a preliminary evaluation of the feasibility of
the City Facilities and Parking Fac i lities 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 techn iques. The
cost estimate shall be updated periodically with the level
of detail for each estimate update reflect ing the
information then available. If the preliminary cost
estimate or any update exceeds the budget for the City
Facilities and Parking Facilities Componen ts 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
( 1 0) 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 prio r to the
Initial GMP Amendment (the "Pre-IGMP Budget
Schedule"). A copy of the Pre -IGMP Budget Schedule is
attached hereto as Exhibit E and made a part hereof. Prior
to the Effective Da te the Des i gn /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 -IGMP Budget
Schedule and Section 1 0.1 .2.
3.1.4 .1 SCHEMATIC DESIGN DOCUMENTS The
Design/Builder shall submit fo r the Development Manager
and Owner's written approval Schematic Design
Documents, based on the Program and other relevant
information . Schematic Des ign 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 furnished 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 .
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 Des ign
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 incorpo rating 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
app roved Design Developm ent Documents for the City
Facilities and Parking Facilities Components of the Project.
T hese 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
estab lished based on these documents.
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 8
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 by Owner. Immediately upon
payment for the materials by Owner, Owne r 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 /Builde r and all
Subcontractors and Sub-Subcontractors in performing
this Agreement, which is not Design/Builder's privileged
i nformation, 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 timely 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 estimate 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 i n
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 specificati ons are in a
condition that (with the agreement of Owner,
Development Manager and Design/Builder) will enable
t he Design/Builder to accurately price the drawings, (but
no later than 101 Days from 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/Builder's 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 Des i gn/Builder's
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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 9
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 Manager's 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 the i r 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 Eng i neering
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 i naccuracies 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 i n 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 th i s Agreement, recogmzmg
that such IGMP i s based on incomplete
Construction Documents, but in
Design/Builder's 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 . Des i gn/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/Builde r's basic services
hereunder, at no add i tional cost to the Owner.
Amended and Restated Design-Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 10
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 Fi nal GMP
Amendment to this Agreement. The Final 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
l i mitation, 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 represents that it 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. The Design/Builder, shall
be responsible for all taxes applicable to the project which
shall be included in the GMP, and reimbursed as a Cost of
the Work .
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 re main 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 peri od .
c) If at any time during the executi on 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,
mai ntenance or payment as requ i red . Such
replacement bond(s) shall be issued by a surety
acceptable to the Owner.
d) Subject to Arti cle 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 wo r k accompanyi ng bond . If
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 11
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 anti c ipated
profits on the work that may be dispensed with .
3.2 .11 SUBCONTRACTOR DEFAULT INSURANCE In
addition to and not in lieu of the Design/Builder's
payment and performance bonds, the Design/Builder shall
obtain Subcontractor Default Insurance to cover 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 Fa cilities and
Parking Facilities Components .
3.3 CONSTRUCTION PHASE SERVICES
3.3.1 The Construction Phase of the City Fac ilities and
Parking Facilities Components will commence upon the
i ssuance by the Owner to the Development Manager and
Design/Builder of a written Noti ce 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 developed and/or
relocated to allow construction of the Project to proceed
i n accordan ce with the Contra ct Documents, (b ) the
Construction Fund has been established and evidence
that such funding has been allocated solely for use on the
City Fa c ilities 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 provi de 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
p r ovide Development Manager with a copy of all test
results . Design/Builder shall provide services r elated to
training of maintenance personnel , assisting with the
commissioning , startup of systems and the adjusti ng and
balancing of systems .
3.3.3 The Design /Builder shall give all notices and
comply with all laws and ordinances which gove rn the
proper performance of the Work, inc luding noise
ordinances and construction work hours as detailed in the
Owner's ordinances; provided, however, i n 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 ac knowledges and agrees that
the GMP will be adjusted appropriately, provi ded ,
however, any such increase will not b e included in
calculating the excess cost s 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. Th i s schedule shall i ndicate the
dates for the start and completion of the vari ous stages of
the const r uction of the City Facilities and Parking Facilities
Components and the overall Project, includ i ng the dates
when information and approvals are requ i red 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 extens i on of time that
is permitted under this Agreement or under the Hotel
DBA, the schedule will be rev i sed showing the extension
of t i me . An extension of t i me granted under th is
Agreement shall constitute an extension of time for the
Design/Builder to Substantially Complete th e Work under
the Hotel DBA and an extens i on 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 bu i lding and
any other perm its necessary for the constru ction of the
Project. The Design/Builder w ill not, however, be requ i red
to pay for any permit fees for permits to be i ssued by the
Owner for the City, which will be waived in conjuncti on
with this Agreement for th e City Facilities and Park i ng
Facilities Components
3.3.6 The Design/Builder shall take necessa ry precautions
for the safety of its employees on the Project, including ,
but not limited to , the City Fac i lities and Park i ng Facilities
Components, and shall comply with a ll applicable
provisions of federal , state and municipal safety laws t o
prevent accidents or injury to persons on, about or
adja cent to the Project Site . The Design/Builde r , directly o r
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/Builde r , however, shall not be responsible for
t he elimination or abatement of safety hazards created o r
otherwise resulting from work at the Project Site carri ed
on by the Development Manager and/or Owner or its
employees, agents, Separate Contractors o r tenants . Th e
Amended and Restated Design -Buil d Agreement and General Conditions Between Owner, Deve l opment Manager and
Design/Builder Page 12
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.
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 Des i gn/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/Builde r i s 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 provi de 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/Builde r 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 jurisdicti on .
3 .4 .3 The Design/Builder shall not be required to perform
any Work relating to or in the area of any Pre -Existing
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builde r Page 13
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, Arch itect, 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 and
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 Subcontractors,
Subsubcontractors 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 Managerand Owner , their employees, and
officers, harmless from all suits or claims for infringement
of any patent rights or copyrights arising out of such
selection . The Owner agrees to withdraw any request the
Owner may make for the inclusion of any materials,
methods, or systems in the Project, if Design /Builder,
Architect or Development Manager has a reasonable
belief that such materials, methods, and systems may
violate a specific copyright or patent.
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 i dentified 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
t hat 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 en t ity subject to the TEXAS
PUBLIC INFORMATION ACT, TEXAS GOVERNMENT
CODE CHAPTER 552 , and Design/Builder 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/Bui lde r. Nothing in this Agreement shall be
deemed or construed as a limitation on Owner's
discretion relating to compliance with Appl i cable Laws .
Nevertheless, Owner will use reasonable efforts to
provide notice as stated in Section 552 .305 of TEXAS
GOVERNMENT CODE within ten (10) business days afte r
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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 14
and without seeking a written optmon 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 Substantial Completion Date of the Project and
end one (1) year after the Substantial Completion Date.
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 Substantial Completion Date ;
including, without limitation, the mechanical, electrical, or
plumbing workmanship and materials . 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
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 Owne r as defective or failing to
conform to the Contract Do cuments , unless such Work is
accepted in accordance w ith other provisions of this
Agreement. Design/Builder as a charge against the GMP
shall bear all costs and expens es 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 discreti on, 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 borne
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 .7.8
THE WARRANTIES SET FORTH IN THIS SECTION 3.7 ARE
SOLE, AND IN LIEU OF ANY AND ALL OTHER
WARRANTIES OF DESIGN /BUIL DER RELATED TO THE
WORK, WHETHER EXPRESS OR IMPLIED, AND
DESIGN/BUILDER DISCLAIMS ANY SUCH OTHER
WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY
AND ALL WARRANTIES OF MERCHANTABILITY AND
WARRANTIES ARISING FROM A COURSE OF DEALING
AND/OR USAGE OF TRADE. ANY OTHER STATEMENT
OF FACT OR DESCRIPTIONS EXPRESSED IN THE
CONTRACT DOCUMENTS SHALL NOT BE DEEMED TO
CONSTITUTE A WARRANTY BY DESIGN /BUILDER OF
THE WORK OR ANY PART THEREOF , PROVIDED,
HOWEVER, THIS SECTION 3 .7 .8 DOES NOT WAIVE ,
RELEASE OR OTHERWISE LIMIT OR AFFECT ANY
WARRANTY (i) BY DESIGN BUILDER AS EXPRESSLY SET
Amended and Restated Design-Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 15
FORTH IN THE CONTRACT DOCUMENTS , (ii) BY ANY
SUBCONTRACTOR , SUB-SUBCONTRACTOR , SUPPLIER
OR MANUFACTURER IN CONNECTION WITH THE WORK,
WHICH WARRANTIES WILL MEET COMMERCIAL
MARKET STANDARDS AND THE STANDARDS OF HOTEL
OPERATOR AND HOTEL FRANCHISOR, AS APPLICABLE,
AND WILL BE ASSIGNED TO OWNER IN ACCORDANCE
WITH THIS AGREEMENT, OR (iii) WHICH IS EXPRESSLY
GRANTED TO OWNER , IN ITS CAPACITY AS A
POLITICAL SUBDIVISION OF THE STATE OF TEXAS , BY
THE LAWS OF THE STATE OF TEXAS.
3 .7 .9 Followi ng the warranty period for correction or
replacement of the Work as described above,
Design/Builder's sole obligation for work found defective
or not conforming shall be to assist Owner in its
enforcement of any remedies available against the
applicable Subcontractor, Sub-Subcontractor or supplier
or manufacturer in connection with such Work.
Design/Builder shall provide all assistance reasonably
required by Owner to enforce such remedies and shall
execute such documents, including an ass i gnment of
Design /Builder's rights under any subcontract agreement
or purchase order, in order to allow Owner to enforce
such remedies
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 rev1s1ons 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
t hat the Development Manager has entered into the
Master Development Agreement and the Hotel
Development Agreement and the Design/Builder has been
p rovided 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
t ime that would have a substantial effect on the
Construction Schedule , scope and/or fund i ng 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 physica l 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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 16
commencing the Work, and during the progress of the
Work, that sufficient funds are available and com mitted
for the enti re cost of the City Facilities and Parking
Facilities Components of the Project (i.e . the Construction
Fund}. including an allowance for change s 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/Builde r shall be entitled to a regu la r update of
status of funds by virtue of a certification of remai ning
funds from Owner but no more frequently than monthly.
The Design/Builder may stop Work after ten ( 1 0) 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 De sign/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 Owne r 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 Docum ents 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 Ma nager 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 De sign/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 I
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 the i r respective
participants in all matters requ1nng the
Development Manager's and Owner's approval ,
authorization or written notice (except, in the
case of Owner, subject to the penultimate
sentence of Section 14.9) .. 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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 17
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 with i n ten ( 1 0) 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 w ith 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 add itional costs, time, or other 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 Sub contractors 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 (I) negotiating w ith
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 requirement s .
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
i mplied, in the event that the Owner terminates this
Agreement for cause as provided in Section 12 .2 .
Following such termination , t he 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 Subcont ractors 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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Deve l opment Manager and
Design /Builder Page 18
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
general 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/Bu i lder 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
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 (61 st) Day to the estimated
level of daily convention business loss due to the
unavailability of the City Facil ities Component and Parking
Facilities Component being open to the public.
Accordingly, the Owner and the Design/Builder agree that
the Design/Builder and Des i gn/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 (6Q 'h)
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.
Owner acknowledges and agrees that if the
Design/Builder is entitled to an extension of the Contract
Time pursuant to the terms of this Agreement, the SC
Date for the entire Project will be extended by the length
of the extension of time to which the Design/Builder is
entitled. Owner further agrees that if the Design/Builder is
entitled to an extension of the Contract Time under the
terms and provisions of the Hotel DBA. the SC Date for
the City Component as well as the SC Date for the Hotel
Facilities Component and the Parking Facilities
Component shall be extended by the period of time for
which the Design/Builder is entitled to an extension of
time under the terms and provis i ons of the Hotel DBA. It
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 19
is the expressed understanding and agreement of the
parties that any extension of the SC Date under this
Agreement or under the Hotel DBA shall constitute an
extension of the SC Date for the entire Project.
6.2 .1 Design/Builder Bonus Notwithstanding any
provision of this Agreement to the contrary, in the event
Design/Builder gives Owner notice at least 180 Days prior
to the SC Date that Design/Builder will achieve Substantial
Completion of the Project prior to the SC Date set forth in
the Final GMP Amendment, Design/Builder shall be
entitled to a bonus fee in addition to Design/Builder's
Construction Phase Compensation, consisting of $1,000
per Day for each Day up to and including the sixtieth
(60th) Day prior to the SC Date, conditioned upon
availability of funds in the Construction Fund. Once
Design/Builder provides the notice required herein, the SC
Date will then become the Revised SC Date which shall be
the date Design/Builder must achieve Substantial
Completion of the Project.
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 entitl ed 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.
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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 20
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. Th is 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 Des ig n/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
Se cti on 3.2. The Design/Builder shall then compensate the
Architect for its Design Phase Serv ices .
7 .2 .3 Design/Builder Design Phase Compensation . For
the period from the Effective Date through the time when
the City Fa cilities 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 and the design team for the City shall
be the lump-sum amount of $813,428.00 paid in
installments over the duration of the Design Phase. The
total Design Phase fees and costs payable by Owner to
the Development Manager for both the City Facilities
Component and the Parking Facilities Component shall
not exceed , in the aggregate, the amount of $649,108.00,
(not including the previously paid amount of $137,400.00
which includes the Hotel franchise fee and other
Development Manager costs). Notwithstanding anything
contained herein to the contrary, Design/Builder shall not
be responsible for the fees and costs to be paid to the
Development Manager as part of the Project nor shall the
Design/Builder be responsible for any services to be
provided by the Dev elo pment Manager in connection with
the project.
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/Bu ilder for Work performed
fo llowing the commencement of the Construction Phase
on the following basis :
.1 the Cost of the Work (including General
Conditions cos ts) as allowed and defined in
Article 8, (less reta inage as provided here in)
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)
Amended and Restated Design-Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 21
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 percent
(30%) allocated to the Design/Builder and thirty percent
(30%) allocated to the Developm ent 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
contin ue 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 Arch itect 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 :
.1 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/Builder's 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/Build er'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/Builder's Fee shall be made as
follows :
. 1 for changes in the Work as provided in Article 9,
the Design/Builder's 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, Des ign/Builder will be allowed 3%
Fee in addition to i ts increased expenses (a s
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 Des i gn/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/B uilder 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 Arti cle
7. The Cost of the Work , 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
i n 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 Man ager, provided
such adjustment shall not affect the Final GMP .
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 22
8 .2 .3 Cost of all employee benefits and taxes , includ ing,
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/Builder's 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 /B uilder's 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 Phas e Services
procured by the Design/Builder in accordance with
Section 7 .3.3 .
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 del i very 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 .10Cost 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 F. 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 Prog ram , 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 des i gnated to be
sales /use tax exempt.
8.2 .12 Fees, licenses , tests , royalties, damages for
infringement of patents and/o r copyri ghts, 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
peri od of one yea r following the date of Substantia l
Completion.
8 .2.14 All costs associated wit h establishing, equipping ,
operating, maintaining and d em obilizing the field office .
8 .2 .15 Reproduction costs , photographs, cost of
t elegrams , facsim ile transmissions, long distance
t elephone calls, data processing serv ice s, postage ,
ex press delivery charges, telephone service at the site and
reasonable petty cash expenses at the field offic e, and at
t he Design/Bu ilders 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 ,
deb ris and waste materials .
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Deve l opment Manager and
Design/Builde r Page 23
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 -c onstruction 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 .2.24AII other costs directly incurred in the performance
of the Work and not included in the Design/Builder's 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 (C CIP). 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.
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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Deve lopme nt Manager and
Design/Builder Page 24
Design/Builder to proceed with the change , the
cost of the change in the Work shall be
determined by the reasonable expense and
sav i ngs 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/Bu i lder 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
i n the Work outside of the GMP unless authorized in
writing by the Development Manager and Owner.
9.4 ADJUSTMENT OF UNIT PRICES If a proposed
Change Orde r alters ori ginal quantities to a degree that
application of previously agreed to unit prices would be
i nequitable 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
Development Manager.
9 .5 UNKNOWN CONDITIONS If in the performance of
the Work the Design /Builder finds latent, con cealed 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 st ructurally unsound and such issue could not
reasonably have been anticipated , or if physical
conditions are different from those normally encountered
and generally recogn ized as inherent in the kind of work
provided for in this Agreement, then the GMP,
c ompensation 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 Orde r 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 g iving 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 des i gn 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 chang e
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 Secti on
9 .6 .
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, compensati on 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 subdivi de the Work into its
respective parts and will i nclude values for all items
comprising the Work . The sc hedule of values shall serve
as the basis for monthly progress payments made to
Design/Builder throughout th e Project. On or about the
2S'h 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 t he end of that month . Any
i nvoices for costs wh i ch are not included in such pen ci l
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 o r about the first Day of the
f ollowing calendar month . The Development Manager,
Owner and Hotel Owner w i ll review the monthly pay
applications; however, such review shall not delay
payment to the Design/Builde r .
10.1.2APPLICATIONS FOR PAYMENT. On or about the
first Day of each month, the Design/Builder shall subm it
to the Development Manager an Application for Payment
as outlined herewith, consisting of an estimate of the Cost
of the Work perfo r med duri ng the previous month ,
(including the cost of materia l stored on the site , or at
other approved locations, on terms and conditions
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Deve lopment Manager and
Design/Builder Page 25
acceptable to Development Manager, including all
appropriate paperwork as required and approved by the
Development Manager and Owner or 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
furnish 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 1 0.1.3, 1 0 .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 (30'h ) day of the month.
1 0.1 .41f 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 ( 1 0) 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 31 " Day after the later of (i) the date Owner received
an approved application for Payment or (ii ) the date the
Work progressed to the extent described in the draw
schedule , in accordance with Texas Government Code
Section 2251 .
1 0.1 .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 conform i ng to the
r equirements of the Contract Documents.
10.1.8 Upon Substantial Comp l etion and after delivery of
all documents listed in Section 1 0 .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
c ompleting 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 pa i d out of funds advanced
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 26
under the Final Application for Payment; an d (i ii) with
respect to the Application for Final Payment or other
Applications for Payment for which the Des i gn/Builder
has not received full payment, such indebtedness will be
pa i d 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 ex pire 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, if any, 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 Oc c upancy, 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 ;
.1 0 a written statement that all comm1ss1oning and
tra i ning on identified equ i pment 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 inte r ests 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 indemn ify the Owner
against such li en . In addition, Design/Builder shall execute
an Affidavit of Completion i n accordance w ith the laws of
the State of Texas signifying that the Project i s complete .
Within thirty (30) Days of final payment from Owner, the
Design/Builder shall provide an unconditi onal waiver and
release from Design/Builder, Architect , and all
Subcontractors, Sub-Subcontractors and suppliers
furnishing materials, equipm e nt or labor on the Project, i n
a form satisfactory to Owner.
10.1.10 The Design/Builde r
Development Manager and
Contractors in obtaining
Occupancy .
shall assist the Owner,
their respective Separate
the Final Certificate of
10.1 .11 If Design/Builder, at any time during the term of
this Agreement, incurs a "debt," as the word i s 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 Finan ce
becomes aware that the Design/Builder has i ncurred 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 Dire ctor 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
Des ign/Builder waives any recourse therefor .
10.2 FINAL PAYMENT
10.2 .1 Final payment, consisting of the unpa i d balance of
t he 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 an d Owner may request
satisfactory evidence that all payrolls, materials bills and
other indebtedness connecte d with the Wo r k have been
paid or otherwise satisfied and all other Owner
requirements as a condition to Final Payment have been
met or have occurred .
10.2 .21n making final payment the Development Manager
a nd Owner waive all claims ex cept for :
.1 outstanding liens or li e ns that could be filed
within the time periods provided under Texas
law;
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 27
.2 improper workmanship or defective materials as
provided in Se ct i on 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 i n writing but which remain
unsettled .
10.2.3 In accepting final payment. the Design/Builder
waives all cla i ms except those previously made i n writing
and which remain unsettled.
ARTICLE 11
INDEMNITY, INSURANCE AND WAIVER OF
SUBROGATION
11 .1 INDEMNITY
11 .1.11NDEMNITY-
GENERAL. DESIGN/BUILDER AGREES TO DEFEND,
INDEMNIFY, AND HOLD HARMLESS THE OWNER AND
DEVELOPMENT MANAGER AND THEIR MEMBERS,
OFFICERS, AGENTS, EMPLOYEES, APPOINTEES AND
VOLUNTEERS ("INDEMNITEES") FROM AND AGAINST
ANY AND ALL THIRD-PARTY CLAIMS, ACTIONS,
DAMAGES, LIABILITIES AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATIORNEYS, 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. INDEMNITY EMPLOYEE INJURY
CLAIMS . IN ADDITION TO THE
I NDEMNIFICATION PROVIDED IN SUB SECTION
11.1.1 . ABOVE, DESIGN/BUILDER SHALL
I NDEMNIFY, DEFEND, AND HOLD HARMLESS
OWNER AND ALL INDEMNITEES FROM AND
AGAINST ANY THIRD PARTY CLAIM, DAMAGE,
L OSS, OR EXPENSE (INCLUDING BUT NOT
LI MITED TO REASONABLE ATTORNEYS' FEES
AND COSTS), ARISING OUT OF, RESULTING
F ROM 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
T HAT, 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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 28
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.
11.1.3The 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 lndemnitees and in the name of Owner and the
other lndemnitees, 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/Build er 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 reason ably satisfactory
to the Design/Builder.
11.1 .5 IMMUNITY RETAINED . The Desig n/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 express ly
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 .1.7The obligations contained in this Section 11 .1 shall
survive the expiration, co mpletion, 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;
.4 personal injury liability claims for damages
directly or indirectly related to the person 's
employment by the Design/Bu i lder or for
damages to any other person;
.5 damage to or destruction of tang i ble property,
including resulting loss of use , claims for
property other than the Work itself and oth er
property insured und er 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 Manage r and their
respective officers, directors, members, shareholders ,
agents and representatives as insureds on the CCIP or as
additional insureds on Desig n/Builder's liability policies if
a CCIP is not provided, in accordance with Exhibit F.
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 F attached hereto and
incorpo rated herein by reference . Design/Builder shall use
a wrap-up insurance program (C CIP) to provide the
necessary coverage in accordance with the requirements
of Exhibit F attached hereto and incorporated herein by
reference. Design /Builder shall comply with the
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Man ager and
Design/Builder Page 29
requirements of Tex. Ins. Code §§151.003 -151 .004 in
providing information concerning the CCIP .
11.2.3The 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
om1ss1ons , 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 F, 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 includ i ng 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 " i nsurance 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 resulti ng 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/Builde r'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 pri or 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 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
i nsurance 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, and necessary labor expense
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 30
including overtime, and other determined exposures,
including damages for delays caused by such insurable
perils. Exposures of the Design/Builder, Architect,
Subcontractors and any 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 to the policies shall be
furnished to the Development Manager and Owner. The
Development Manager and Owne r shall be g iven thirty
(3 0) Days ' notice of cancellation , non-renewal , or any
endorsements restricting or reducing cove rag e.
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/Bui lder, 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 Own er, 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 of i nterest,
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
11 .7.1 The Development Manager, and Des i gn/Builder
waive all rights against each other and Owner, the
Architect, and any of their respective em ployees , agents,
consultants, Subcontractors and Sub-Subcontractors for
damages caused 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 Des ign/Builder.
The Design /Builder and Development Manager shall
require sim i lar 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 Manage r shall also
provide similar waivers in its Agreement with the Owner
and any Separate Contractors.
11 .7.2 1ntentionally Omitted
11 .7.31f the policies of insurance referred to in this
Section require an endorsement to provide for continued
c overage where there is a waiver of subrogation , the
providers of such policies will cause them to be so
endorsed.
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 Day s if the Owne r is pursuing
relief from such stoppage,
a. under court order or order of other
governmental authorities having jurisdiction,
unless caused by the Design /Builder; or
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 Deve l opment Manager, Owner, or any
Separate Contractor materially delay the
Design/Builder in the performance of the Work;
Amended and Restated Design -Bu ild Agreement and General Conditions Between Owner, Deve l opment Manager and
Design/Builder Page 31
.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 ac cordance
with Section 4 .1.3 of this Agreement.
12.1.2 With the exception of termination occurring under
12 .1.1.1 (a) o r (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/Builde r 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 conditi on or non-performance within such
fifteen (15) Day period, the Development Manager or
Owner may terminate this Agreement for any of the
following reasons :
.1 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 jurisdicti on; or
.4 if the Design/Bu i lder 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 r i ght
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 t he Work and other actual
damages incurred by the Owner, not ex pressly waived,
exceed the unpaid balance of the Guaranteed Maximum
Price , the Design/Builder shal l pay the difference to the
Owner promptly upon demand from Owner.
12.2.31f the Design/Builder f i les a petition under the
Bankruptcy Code, and/or if an involuntary peti tion 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 assu rance that the Design/Builde r
will perform as required by th i s Agreement or otherwise
is unable to comply with the requirements for assuming
this Agreement under the applicable provi sions of the
Bankruptcy Code .
12 .2 .41n 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 /o r
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.
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 32
.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 sha ll 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,
i ncluding 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/Bu i lder'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 provis i on 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 :
.1 if the Final GMP proposed by Design/Builder i n
accordance with Secti on 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 otherwi se. 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 med i ation 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
t he Hotel Owner, pursuant to their respective r i ghts under
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Deve l opment Manager and
Design/Builder Page 33
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 same mediation proceeding . Appropriate
provisions shall be included in all other contracts relating
to the Work to provide for the consolidation of
mediations.
13.7 Intentionally Omitted.
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. Dev elopme nt
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 LAW/VENUE 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 Harris
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 spec ified 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 relinquish ment of such term ,
covenant, condition or righ t 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 th e 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/Bu ilder hereby
agrees to the assignment of this Agreement to the Owne r
as security to the Owner for Development Manager's and
Hotel Owner's performance under the Relate d
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
unde r this Agreement and that the Design/Builder has
recei ved , 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 wh ich
Design/Builder is performing under this Agreement.
Design/Builder will comply with all Applicable Laws and
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder Page 34
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 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.
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 th e 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
Amended and Restated Design-Build Agreement and General Conditions Between Owner, Deve lopment Manager and
Design/Builder Page 35
DEVELOPMENT MANAGER:
GARFI EL D PUBLIC /PRIVATE LLC
ATTEST : ---------------------------BY : -------------------------------------
PRINT NAME : ---------------------------
PRIN T TITLE : ---------------------------
DESIGN/BUILDER:
DPR Construction, A General Partnership.
ATTEST: ---------------------------BY : -------------------------------------
PRINT NAME : ----------------------------
PRINT TITLE : ----------------------------
ATTEST: ---------------------------BY : -------------------------------------
PRINT NAME : ----------------------------
PRINT TITLE : ----------------------------
OWNER :
City of Baytown, Texas
A hom e-r ule muni cipal corpo rati on
ATTEST: ---------------------------BY : -------------------------------------
PRINT NAME:
PRINT TITLE :
Approv ed as to fo rm :
_________________ _, City Atto rney
ANNEX 1
PROJECT COMPONENTS
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager a nd
Design/Builder-Annex "1" Page 1
ANNE X 1
COLOR KEY
D CITY PROPERTY
D CITY OWNED/CITY FACILmes
L ~~] HOTEL OWNED/CITY GROUND LEASE
MARINA PARKING
LINE OF TOWER ABOVE
N
EXHIBIT "A"-BAYLAND ISLAND
DESCRIPTION OF PROPERTY AND PROJECT
Ill
Ownersh i p-0 .0 1
02.05.2018
ANNEX2
PROPERTY DESCRIPTION
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder-Annex "2" Page 1
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EXHIBIT "A"
DESIGN/BUILDER'S PERSONNEL LIST
Amended and Restated Design-Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder -Ex hibit " A " Page 1
EXHIBIT A
Design/Builder's Personnel Ust
In the event of any conflict. inco nsistency or ambiguity betwe en the terms and provisions of this Exhibit and those of the Agreement or other contract
documents. this Exhibit governs. In this Exhibit. "Co ntractor" means DPR Construction, A Genera l Partnership .
1 Labor Rates -January 1 2018 (Anniversary Date) I
Classlficatlon Rate Overtime Double-Time
Classification OVertime Double-Time
Rate Rate Rate
Rate Rate
Principa l $ 195.00 BIM Manager Se nio r $ 145.00
Project Executive $ 155.00 BIM Manager $ 127.00
Preconstruction Manager $ 155.00 BIM Engineer $ 82.00
Senior Estimator $ 142.00 Sr IT Technician $ 110.00
Estim ator $ 110.00 IT Technici an $ 90.00
Estimating Ass ista nt $ 74.00 Technology In tegration Manager $ 110.00
Estimator-Jr $ 82 .00 Bus iness Deve lopment $ 175.00
MEP Senior Estimator $ 142.00 Marketing Professional $ 95.00
MEP Estimator $ 110.00 People Practices/Learning & Deve lopment $ 120.00
Design Manager $ 125.00 SPW Executive $ 155.00
Senior MEP Coordinator $ 140.00 SPW -Est imator Sr $ 142.00
MEP Coordinator $ 120.00 SPW-Estim ator $ 110.00
MEP Manager $ 133.00 SPW-Safety Manager $ 107.00
Senior Project Manager $ 133.00 SPW -Safety Coordi na tor $ 92.00
Project Manager $ 112.00 SPW-Project Manager-Sr $ 133.00
Senior Project Eng ineer $ 92.00 SPW-Project Manager $ 110.00
Project Engineer $ 82.00 SPW -Project Engineer Sr $ 92.00
Junior Project Engineer $ 79.00 SPW -Project Engineer $ 79.00
Document Control $ 79.00 SPW-Superintendent Sr $ 145.00
Intern $ 70.00 SPW-Superintendent $ 110.00
vCons truct $ 78.00 SPW-Assistant Sup erintendent $ 93.00
Project Contro ls Manager 1 En $ 127.00 SPW-Field Engineer $ 80.00
Senior Schedu ler $ 140 .00 General Foreman $ 55.00 $ 77.00
Schedu ler $ 135.00 Carpenter -General $ 42.00 $ 58.00
Office Coordinator $ 96.00 Laborer -Foreman-General $ 53.00 $ 73.00
Senior Project Accountant $ 96.00 Laborer -Genera l $ 38.00 $ 54.00
Project Accountant $ 81.00 Carpenter-Forem an-Conc/Unistrut $ 55.00 $ 72.00
Accounts Payable $ 80.00 Carpenter-Co ncrete 1 Unistrut $ 42.00 $ 54.00
Payro ll Coordinator $ 80.00 Carpenter-Concrete-Helper $ 38.00 $ 55.00
Sr Fie ld Office Coordinator $ 80.00 Concrete Oper ator I Operating Engineer $ 43.00 $ 58.00
Field Office Coordinator $ 70.00 Carpenter-Foreman -DFH 1 Div 10 $ 60.00 $ 80.00
Insurance Administrator $ 80.00 Ca rpenter-DFH 1 Div 10 $ 46.00 $ 60.00
Contracts Admin istrator $ 80.00 Drywaller-Foreman $ 56.00 $ 76.00
Receptionist $ 62 .00 Drywaller $ 42.00 $ 56.00
Safety Executive $ 155.00 Drywall er-He lp er $ 38.00 $ 55.00
Safety Manager $ 107.00 Carpenter-Div 7 -Lead $ 52.00 $ 68.00
Safety Coor din ator $ 92 .00 Carpenter-Div 7 $ 41.00 $ 54.00
Senior Superintendent $ 145.00 Div 7 -Laborer $ 38.00 $ 54.00
Superintendent $ 117.00 Taper -Foreman $ 49.00 $ 67.00
Ass't Superi ntendent $ 95.00 Taper $ 44.00 $ 58.00
Fie ld Eng inee r $ 82 .00 Painter/Taper/Pla ste r -Lead $ 47.00 $ 62.00
Senior Surveyor $ 145.00 Pa inter $ 41.00 $ 55.00
Surveyor $ 95.00 Painter -Helper $ 38.00 $ 54.00
Design Manager-Sr $ 180.00 Ta lent Acquisition Manager $ 80.00
The above labor rates inc lude wages, f ringes. benefits, payr oll taxes and emp loyee insurance ; emp loyee benefits suc h as vacation , sick leave , and jury leave ;
and employee computer eq uipment.* mob ile phones, access ories . software** and support; and sha ll apply to both di rect employees an d workers contracted
through vConstruct or through temporary labor agreements with Contractor. Th e above labor rates exc lud e holiday , and if the Project is using a Controlled
Insuran ce Program they also exc lud e worker's co mpensation insuran ce . These labor rates are subject to five percent (5%) increase on an annual basis on the
anniversary date of the rates as shown above. Such rate change sh all be accomplished by change order to the Agree ment. provided, however, such rate
change shall not increase the Final GMP.
* The fo ll owi ng items are not inc luded in this rate : Jobsite information techno logy infrastructure set-up (e quipment and labor), jobsite pho ne/fax lines (set-up
and usage). and hardware costs for tab let computers (e.g., iPads), thou gh software , connectivity and IT support for tab lets are included.
* * The fo ll owing types of DPR 's custo ma ry software app li cations are inc luded within t his rate: Microsoft desktop and online productivity app lications . emai l
applications , BIM applications , construction applications, scheduling applications, turnover software, CM IC project management & job cos t ma nagement
software , ou r data ce nter hosting infrastru cture and databases for these software applications , fi rewall software and backup software for all de vices. core
enterprise security applications.
Design-Bui ld Agreement and Genera l Co nditio ns Betwee n Owner, Deve lopme nt Manager and
Design /Builder-Exhibit "A " Page 1
2. EQuipment Rates -JanuarJ 1 2018
Hourly Rate
Item
Truck
3 . Insurance Rates:
Weekly
Rate
$
EXHIBIT A
Design/B uil der's Personnel Ust
Monthly
Rate
1.000.00
(a) 'Contractor"s Insuran ce' (Contractor's entire enterprise insurance program , exc lud ing SDI and builder's risk) provided for the Project is fixed at the
stipulated rate of (1 .2 %) times contract value. The rate set forth above inc ludes the cost of Contractor's CCIP coverage , as outl ined in the Contractor"s
Insuran ce Manual. The amount for Contractor's Insurance is due and payable in full upon Contractor 's binding of the coverage for this project
(b) If Contractor is providing builder's risk/builder's wrap-around insurance , Contractor's builder's risk insurance cost is fixed at the stipu lated rate of (0.10%)
times contract va lu e. The charge for build er's risk insu ran ce cost is in addition to the charge for Contractor's Insurance and is due and payab le in full upon
Contractor's binding of the policy. The amount for bui ld er's risk insurance wi ll be adjusted based on adjustments to the contract va lue and schedule of
Contractor's performance.
c) Contractor's cost to enroll all qua lified subcontractors into the subcontractor default insurance (SDI ) program for the Project is fixed at the stipulated rate of
(1.4 %) of enro ll ed subcontract va lue. inc lud ing qualified subcontra ctors that are contracted under a se lf·perform scope of work. The initia l charge for the SDI
program (based on then-estimated subcontract volume) is due and payab le in full upon Contractor's enrollment of the Project into the SD I program and is in
addition to the charge for Contractor 's In surance . At the earlier of (1) the po int where the estimated enro ll ed subcontract volume is actua ll y exceeded , or, (2)
the end of the Project the amount for the SDI program wi ll be adjusted and reconciled based on the actual enrolled subcontract volume .
4 . Contractor's Bond Rate: Contractor's cost to provide payment and performance bonds for the Project is fixed at the stipu lated rate of (0.39%) times
contract value. The initia l charge for th e bonds shall be based on the estimated contract value and is due and payable in full upon issuance of the bonds . The
charge for the bonds will be adjusted based on adjustme nts to the contract va lue and schedu le of Contractor's performance.
5 . Contractor's Self-Performed Work !SPW): All self perform scopes of work will be performed on a lump sum subcontract bas is, 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 app licable fees or markups on the SPW all owab le per the Subcontract. This standard markup is app li cab le to both base
SPW scope (inclus ive of all vendors and SPW subcontractors) and any changes to the SPW scope. The value of this standard ma rkup shall be considered part
of Contractor's allowab le costs on the same bas is as subcontracted work .
GENERAL: The rates in this Exhibit are fixed. stipulated rates by agreeme nt of the Owner and Contractor. These fixed rates wi ll be used to ca lculate the costs
reimbursab le to Contractor under the Agreement, including for change orders , for each listed labor, equipment, insurance and bond classification item by
mu ltip lying suc h rates by the actua l, app licab le units. These fi xed rates gove rn over any contrary cost reimbursement terms of the Agreeme nt 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 all owable units and the application of the correct fixed rates. but such audit rig ht does not exten d to items of cost
within the fixed rates or documentation of how such fixed rates were determined.
Design·Bui ld Agreement and Genera l Conditions Between Owner , Development Manager and
Design/Bui lder-Exhibit "A" Page 2
Exhibit "B"
LIST OF DESIGN/BUILDER'S EQUIPMENT
WITH AGREED UPON RENTAL RATES
Amended and Restated Des ign-Build Ag reeme nt and General Conditions Between Owner, Development Manager and
Desig n/Builder -Exhibit "B" Page 1
EXHIBIT B
Ust of Design/Builde r's Equipment
In the event of any confli ct, 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 Genera l Partnership . ... ..
BOOM LIFT·45' TELESCOPIC 4WD ENGINE
BOOM LIFT-60' TELESCOPIC 4WD ENGINE_ ------------
BOOM LIFT-65 ' TELESCOPIC 4WD ENGINE
$907
$907 $33. ______ _
55
$125
$15 $1.~25:------
$17
$23
$28 $32 _____ _
$37
SA2
$
$28
$31 -
$3]
~4
LADDER ·36' EXTENSION -------------------__ $46,_ ______ _
LADDER-40' EXTENSION $ 3
BIT·11/8" MOllPOINT
BIT-1 8"X1" CHISEL
BIT-1"X1" CHISEL
BIT-1" 3" CHISEL
BIT-2" A/C/H CHISEL
BIT-A(!;/H BUSH HEAD
BIT-~C/H CARBIDE BUSH HEAD
$125_ ------
$125
$132_
$132
$240
$150
$150 _
$260
$320
219
$225
$325
$269
$94 $188 ____ _
S~---
$50
50
$50
$50
$50,_ _____ _
72
$50
$12
$11
$11
$11
$242
$15
$15 $11 ____ _
$......_ _____ _
$11
$12
$11
$17
$15
$11
$11
$11
$11
$20
$36
Design -Build Agreement and Genera l Conditions Between Owner, Development Manager and
Design /Builder-Exhibit "B"
, ..
57
$1,867
2,575
$3,554
$~467
$1,867
$2,000
$£.667
$~934
$5.467
~600
$324
$460
$394
945
$634
~6
$92
$110
$144
$182
$228
Sj46
$130
168
$182
214
$232
48
$394
414
$600
600
$~520
800
$800
$1,9 0
$2 ,080
c!,134
$1,334
~475
$2,200
7 4
$1 ,467
2 125
$434
$434
~434
$434
$434
518
$434
$4
~8
$38
_$j4
~1,744
~8
9 ~58
$20 $40
s 0 $40
$20 $40
$21 42
$20 $40
$]1_ $64
$29 $58
$20 $40
$20 $40
$20 $40
$20 $40
$42 $84
70 $140
Page 1
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11
$11
$25
$17
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$_1!1_
$20 __
$51
$32
37 $20'------~~-
$22
_$26 $32 _____ _
$43
$53
$64
$190
$305
$650
__ $620
$325. ____ _
$344
$155
$42"-5 ____ _
$475
$525
TAMPER -PLATE GAS $94
TAMPER-UPRIGHT GAS MEDIUM S,9"-4 ______ _
$83
$11
$35
$850
$2,045
$1,018
$982
$585
$1,136
$1,363
1,704
$282
$282
$344
$22
$131
$131
$131
S66
$204
$495
$131
$131
$300
$131
$131
$66
$131
$20
$66
$204
$204
$66
$204
$
$.284
$330
$240
$250
$211
$303
$464
$11
$150
$340
$239
$1,300
$66·-------,-·
$353
$124 -------
$21
$23
$138
$5 '---~--
$44
$73
36
$26
$4 $46 _____ _
46
$76
$80
$35
$53
$57
$77 $61 _____ _
$121
$67
$69
$86
$84
S5o __
$150
$106
$51
Design ·Build Agreement and General Condition s Between Owner, De velopment Manager and
Design/Builder -Ex hibit "B"
$495 ____
$8
$80
418
$211
$158
$266
$ 33
$55
$171
$171
$1 Z1
$257
266
$120
$168
$210 _
~231
$218
$340
$213
s z ~o
$319
$3QQ
$172
$534
$188
$180
40
$40
$136
$64
4
$86
106
$128
$1,790
$2,350
$6,081
$2,800
$2,134
$1,51_5
$3,476
$4,024
$4,769
$634
634
$743
$44
$271
$271
$271
$150
$411
$!,125 1
$271
$271
$600
271
$271
$271
$411
$150
$411
$411
150
$411
$265
$656
$735
$613
867
$560
$700 1 $1 ,120
$220
$300
,~,1 $630
$3,431
$1,357
j184
$209
945 1 $449
421
$535
$349
$110
$419 1
$419
$419
$627
696
_$300
$!14
$478
$695
$.}19
$680
$545
$586
$841
818
$468
$1,363
$376
$432
Page 2
_AUGER-ATIACH PLA SKID
AUGER -ATIACH SKID
BRUSH CUTIER;:SKID
SKIDSTEER-60 " SWEEPER ATIACH
SK ID STEER-BUC KET 41Nl UN IV
SK IDSTEER-FORK TIACH LARGE
TRENCHER -RIDE-ON 24 " ROCK SAW WHEEL
TRENCHER -RIDE -ON 30" ROCK SAW WHEEL
.....
.$325
$103
$282
$319
, ..
$310,_ ________ -::-:
350
$14. ___________ --:-'
~61 ______ _
$72
70 $55, _______ _
$161
$157
$195
$161
$225
$250
$36
$44
$100
$193
$130
$106
$28
$525
$650
$270
$295
$244
$325
$250. _____________ ..,..
380
$420
3]5
$500
$375
$780, _______ _
$563
$840,_ ________ __
$850
$260
$244
$27c,0'----~~
$338
$344
$~15
$195
S~-L-------------~~--------·---------------------------------·$229~----------
$75
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$169 '-='------
$207
250
$275~-----------::-:
$
$22
23
$95
-------------------------$~28~---------
BLOWER -BACK PACK
LEVEL-BUILDERS W TRIPOD/I A G T
LEVEL-LASER W TRIPQil/TARGET
Design -Build Agreement and Genera l Conditions Between Owner, Developme nt Manager and
Des ign/Build er-Exhi bit "B"
$95,_ _______ _
20
$15, ______ _
$.11_ --------~-""'--------$26
$83 $66,__ _______ ___
$105
$120
$74
$83
$55
$2':'4 _________ _
$43
.$28
$35
$94
$35
$52
$51
$103
Page 3
JACK-ELECTRIC PALLET
MATERIA Ll -12 '
AXLE
TRUCK-WATER 2,000 GAL:--::--:---
DPR SuQe . tende 1L2 T,__.........,-=--
, .. , ..
____ s~so~----------~~~-------S99,_ _____ _
$325
$35 7'--------:-"·
$369
$369
$469
$588,_ ___ __
600
$45
1
$51
$51
$80
$45
$45
$66
$83._ __ ~-
$30
$83
$94
$143 ____ ~
$280
-$29
-$6
$68
$94
$20
$68
$68
$44. _____ _
52
$35
$158
183
$105
158
$550
$357
$1,125 __
GENERAl: The rates in this Exhi bit are fixed , stipulated rates by agreement of the Owner and Contractor . These fixed
rates will be us ed to calc ulate the costs reimbursable to Contractor under the Agreement, inclu ding for change orders,
for each listed labor, eq uipm ent, insurance and bond classification item by multiplying such rates by the actua l,
applicable units . These fi xed 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 items of cost within the fixe d rates or
documentation of how such fixed rates were determined .
Design-Build Agreement and General Co ndition s 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 Board of
Directors of the 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 Harris 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 (which amount is inclusive of the
Design and Development Funds) in net proceeds to fund the design, development and construction
of the City Facilities. The net proceeds of the City's obligations to fund the City Facilities will be
based on a par amount that will 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 convention 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 design, 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 .
De sign-Build Agreement and General Co nditi o ns Bet ween O wner, Deve lopment Man ager a nd
De sign/B uilder -Ex hibit "C"
Page 1
"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 subcontractors for construction of
the Project.
"Design and Development Funds " means City-provided funds not to exceed $1,600,000 .00 in cash fo r
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, architectu ral , engineering, interior design and other
specialists and consultants engaged by Hotel Owner, Garfield , 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 conc erning the Project and all items which will be
required to cause Final Completion of the Project, which shall include, without limit ation, 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.
"FF&E " means those items of furnishings, fixtures, equ i pment, 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
financi ng issued by the Hotel Owner, upon written approval by Hotel Owner's Board of Directors, the
net proceeds of which will be used for financing 100 % of the costs of completing (a) the design,
development and construction of the Hotel (including related financing costs , capital ized i nterest,
reserves for debt service and working capital, and related attorneys' fees and expenses ) pursuant to
the Hotel Budget and (b) the development and construction of the City Facilities , but only to the
extent the actual costs of the City Facilities exceed the amount of the City Contributi on .
"Hotel Development Agreement " means that certain hotel development ag r eement between Hotel
Owner and Garfield pursuant to which the Hotel will be developed.
"Hotel Owner" means Baytown Municipal Development District, a political subdivision o f the State of
Texas and the City .
"Hotel Owner Financing Contribution " means the combined net proceeds from the issuance of the
Hotel Construction Phase Fi nancing .
"Hotel Owner Financing Documents" means the trust indenture(s) for the Hotel Construction Phase
Financing, any related bond purchase agreement and all other loan agreements, 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.
Des ign-Build Agreement and Ge neral Co nditi o ns Between Owner, Deve lo pment Ma nager a nd
Des ign/B uild e r -Exhibit "C"
Page 2
"Leasehold Mortgagee " means the Trustee appointed pursuant to the Hotel Owner Financing
Docu ments as further desc ribed in Secti on 12 .5.4 .
"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 exi sting parking agreement with the adjoining Mari na , which
spaces will be public parking spaces open to the public.
"Mari na Site Parking Agreement" means the parking rights agreement between the Ci ty, as lessor,
and Hotel Owner, as lessee, regarding the use of approximately 230 spaces located on the Marina
Park i ng Site .
"Project Architect " means BOKA Powell , LLC.
"Pro ject 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 20 , 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 City, 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 by th e City and th e
design/build contract for the Hotel by the Hotel Owner and subject to Section 3.3.9 hereof, the City
shall have available the Design and Development Funds for the design and development costs of the
City Facilities as well as the funds for the design and development costs of the Hotel (the "Hotel D&D
Costs "). As further provided in Section 3.3 .9 herein, Hotel Owner shall pay a hotel des i gn fee to the
Ci ty in an amount equal to the Hotel D&D Costs up to a maximum of $2 ,600 ,000 (the "Hotel Design
Fee") out of the proceeds of the Hotel Construction Phase Financing or other lawfully available
source of funds in return for the transfer of any work product resul t ing from the expenditure of such
Hotel D&D costs . The Hotel D&D costs initially paid by the City are in additi on to the City's
Contribution . The funds advanced by the City on behalf of the Hotel Owner to cover the Hotel D&D
Costs shall be pa i d in accordance with the procedure s set forth in Section 9 .1 below.
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 Fi nancing 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 i n writing .
3 .1.1 City Facilities. Garfield shall provide the following services during the Project Development
Phase to the City with respect to the City Facilities :
(e) Negotiating, reviewing , evaluatin g and finali zi ng 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 reta i ned 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
Design-Build Agreement and General Co nditi ons Between Owner, De ve lopm ent Manage r and
Design/B uilder -Exhi bit "C"
Page 3
City for the construction of the City Facilities . Garfield shall administer such contract 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 applicable to municipalities and the
contract(s) with the Project Architect shall name the City and Hotel Owner as an additional insured
and shall provide that the City may, upon Garfield'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 exceeding 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 t he General Contractor shall enter into a
design/build contract for the construction of the City Facilities; and Hotel Owner, Garfi eld and the
General Contractor shall enter into a des ign/build contract for the construction of the Hotel.
3.3.9 Hotel Owner Financing Contribution and City Contribution . On or before 60 days following
the Effective Date of this Agreement, the City shall have (i) its Design and Development Funds
available for expenditures of the design and development costs of the City Facilities and (ii) funds
available for expenditures of the Hotel D&D Costs . Provided , however, that the City shall only
expend its Design and Development Funds and funds for the Hotel D&D Costs after the City's
approval of the design/build contract for the City Facilities and the approval by the Hotel Owner of
the design/build contract for the Hotel. On or before the Project Funding Deadline and following the
development of the budget set forth in the Hotel Development Agreement, the Hotel Owner shall
have entered into an agreement for the sale of debt obligations to fund its Hotel Const ructio n 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 Clos ing and the City
Financing Closing. Within five (5) days following the funding of the Hotel Construction Phase
Financing, the Hotel Owner shall pay to the City the Hotel Design Fee in accordance with Section
2.2.1(b) above.
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 the approval of the design/build contracts for the City Facilities and the Hotel. 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.
6.1 .5 Deliverv 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 Fac ilities and the
Hotel. Garfield shall make available these records for audit, inspection and copying by the City
Representative or Hotel Owner, or any other persons designated by the City Represen tative or Hotel
Owner, upon five (5) business days' notificatio n. Following Final Completion of the City Facilities or
Hotel , as applicable, or termination of this Agreement and /or upon written request of Hotel Owner or
Design-Build Agreement a nd General Co ndition s Between Owner, Deve lopment Manager a nd
Desi gn/Build er -Ex hibit "C "
Page 4
City Representative from time to time, Garfield shall deliver to the City Representative or Hotel
Owner an electronic copy of all such records. Garfield shall retain an electronic copy of such records
for a period of at least 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 permit applications, utility easements,
requests for certificates of occupancy and such other documents as may reasonably be required for
Garfield, Hotel Owner or General Contractor to obtain building permits, licenses, approvals,
certifi cates, 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 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 provi ded,
however, that the City shall not be obligated to pay any draw requests for the City Facilities if
constructi on 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 set forth in
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 reasonab ly 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 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
Desig n-Build Agree ment and Ge nera l Conditi o ns Between O wne r , Development Man ager a nd
Design/Build er -Ex hibit "C"
Page 5
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 and/or General Contractor, as applicab l e, 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, solely from the proceeds of the Hotel Construction Phase Financing .
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 during this time
period, the Hotel Owner, in connection with the Project, shall pay to the City the Hotel Design Fee in
an amount equal to the Hotel D&D Costs incurred up to the date of termination up to a maximum
amount of $2,600,000. Further, Garfield and the City specifically acknowledge that the Hotel Owner's
obligations under this section shall not constitute a general obligation of the Hotel Owner or
indebtedness under the constitution or laws of the State of Texas . Upon payment of the Hotel Design
Fee , Garfield and the City shall convey and Hotel Owner shall receive ownership and possession of
all work product produced as a result of the expenditure of the Hotel D&D Costs .
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 Contracto r
to comply with the City's Good Faith Effort Program .
Design-Build Agree ment and Ge nera l Co nditi o ns Between O wne r, Deve lopment Man age r and
Design/Build er -Exhibit "C"
Page 6
.... ..........
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EXHIBIT "D"
SH ERATON -THE PROGRAM
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Design-Bui ld Agreement and Ge nera l Condi t io ns Between O wner , De ve lo pment M a nager a nd
De sign/B uild e r -Ex hibit "D"
Page 1
EXHIBIT "E"
PRE -IGMP BUDGET
Design-Build Agreement and General Co ndi tions Between Owner, Development Manager and
Design/Builder -Exhibit "E"
Page 1
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PRE-DEVELOPMENT PERIOD
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PR INTED 911 4/2018 3:00PM
EXHIBIT "F"
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/Builde r separately from the CCIP . These insurance requirements are in
addition to all insurance requirements set forth in the Agreement for the Project. "Owner,"
"Indemnitee," "lndemnitees" 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 lim its as required by the Labor Cod e 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 amount s 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 Subsubcontractors
Design/Builder shall cause all insurers providing workers compensation insurance to waive all rights
of subrogation against Owner and lndemnitees . 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, personal
injury and property damage . Aggregate policy minimum of $4,000,000 will include coverage for, but
is not limited to, Premises-Operations, Broad Form Cont r actual Liability, Broad Form Property
Dam age, Products and Completed Operations, Personal Injury, Use of Contractors and
Subcontractors, and Explosion Collapse and Underg round (XCU) coverage . A general aggregate loss
lim it 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, Employer's Liability and A utomobi le
Liability policies.
De sign-Build Agreement and General Condi tio ns Between Owner, De ve lo pment Manager and
De sign/Build er -Exhi bit "F "
Page 1
5. Pollution Liability
Design/Builder shall maintain Pollution Liability covering the Design/Bu i lders liability for bodily
injury, property damage and environmental damage resulting from pollution and relate d cleanup
costs incurred, arising out of the work or services t o 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
Des ign/Builder shall provide and maintain Professiona l Liability coverage with limits of $3,000,000
each claim/$3 ,000,000 annual aggregate, issued by an i nsurance carrier approved in advance by
Owner and licensed , or otherwise authorized as a surp l us lines insurer, to provide such coverage in
Texas to insure from and against all negligent acts, errors, and omissions in the profess iona l services
performed by Design/Builder, its agents, representatives , employees, Subcontractors and/or
Subsubcontractors provided, however, that Architect shall supply Professional Liability ins urance
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 ofthe
Work are barred by applicable statutes of limitation or repose.
The Owner and all lndemnitees shall be provided additi onal 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.
COVERAGES REQUIRED OF DESIGN -BUILDER, SUBCONTRACTORS , SUBSUBCONTRACTORS ANO
MATERIAL SUPPLIERS FOR NON -CCIP AND OFF -SITE EXPOSURES
Design -Builder must provide coverages as set 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 ins urance coverages (with the policy limits) requ ire dare as follows :
Insurance Policy Limits
Worker's Compensation/Employers ' Liab i lity 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/co mbined aggregate In excess of limits specified for
Employer's Liability, Commercial General Liability and Automobile Liability.
Pollutio n 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 covera ge 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, Subsubcontractor, vendor and supplier providing work
shall provide their own insurance coverage for all construction equipment, tools, apparatus,
mach inery , scaffolding, hoists, forms , staging, shoring and similar items ("Construction Equipment").
This coverage shall include an endorsement waiving the insurer's right
of subrogation against the Design/Builder, Owner and Development Manager.
Design-Bui ld Agreeme nt and General Co nditi ons Betwee n Owner, Deve lopm ent M ana ger and
Design/Builder -Ex hibit "F"
Page 2
Owner and lndemnitees as defined in the Agreement shall be included as additional insureds on
general liability policies using ISO Additional Insured Endorsements CG 20 10 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 lndemnitees shall also be added as additional insureds to
the contractor's 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 o r suppliers
upon written application by Design -Builder in advance of the Subcontractor, consultant, vendor or
supplier beginning any work on the Project. No modifi cation will be enforceable if not provided by
Development Manager in writing .
All policies required, except Worker 's Compensation and professional liability, shall be endorsed to
include waivers of subrogation in favor of Owner. Insurance policies must be placed w ith carriers
having an A.M . Best 's Guide rating of A minus VII or better. Subcontractors and Subsu bcontractors ,
performing any Work on the Project shall fully comply with the requirements of Design/Builder's
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 Ri sk " 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 Builder's Risk and Installation Floater insurance shall include as additional
named insureds the Owner, Owner's Representative , Development Manager,
Bond Trustee , Design/Builder, Subcontractors and Subsubcontractors .
Des i gn-Build A gree ment and Ge neral Co ndi tions Betwee n Owne r, Devel opm ent Ma nage r and
Des i gn/B uild er -Ex hi bit "F"
Page 3
EXHIBIT "F"
INSURANCE REQUIREMENTS
TO THE SUBCONTRACT AGREEMENT BETWEEN DPR CONSTRUCTION, A GENERAL PARTNERSHIP AND
DPR Job#:
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 Insurance Program ("CIP") is specified in the Prime Contract or elsewhere in the Subcontract Documents, the
Insurance Requirements in this Attachment A shall not apply to coverages supplied by the CIP, but 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 -re newal, 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 Subcontra ct is not in effect or no longer comp lies with the
requirements of this Subcontract, then Subcontractor shall indemnify and defend Owner, Owner's lndemnitees and DPR
against such damage or claim to the extent not covered by Subcontractor's insurance. Re ce i pt 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 specify ing min imum 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 requirem ents 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 covera ge 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 Subcontracto r '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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder -Exhibit "F"
Pag e 1
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 .1 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 worke rs' 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 , i ncluding
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 for the 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 Categorv List)
Category I. II. and Ill 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 Project 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 (1990 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.
Amended and Restated Design-Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder-Exhibit "F"
Page 2
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 .
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 Liab i lity Railroads). Furthermore, at
DPR 's option and when required by the Owner or the railroad , Railroad Protective Liab i lity 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 pol icy 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 provis i on 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 Liabi li ty insurance with minimum limits of
$2 ,000 ,000 per Claim I 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 th i s 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 Liability.
3 .6 .1 Microbial Matter: Mold . Fungi. & Bacteria (Refer to Appendix 1-Trade Category Listl.
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, i ncluding mold , fungus or bacteria.
3 .6 .1.3 Category Ill & 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 i ncludes 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
Amended and Restated Design-Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder-Exhibit "F"
Page 3
Owner. "Environmental Services " m eans 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 m i crobial 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 Liabilitv. 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.
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 min i mum 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 joi nt
venture partner and joint venture, if one exists, including their officers, partners, agents, employees, affiliates, parents
and subsidiaries, as an additional insured under the Subcontr actor'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, includi ng 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 pe r mitted 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 20 10 07 04 (ongoing operations) in combination with CG 20 37 07
04 (completed operations). Notwithstanding the foregoing , Subcontractor shall provide ISO Form B -CG 20 10 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 any policy
provided in compliance with this Attachment A states that the insurance afforded to an Additional Insured will not be
broader than that required 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
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder -Exhibit "F"
Page 4
combination with umbrella I 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 " provisi ons as requ i red so as to
provide additional insured coverage on a pri mary non-contributory basis .
8 .0 Deductibles/Self Insured Retentions . Any self-insured retent i on or deductible in excess of $10 ,000 must be declared and
is subject to DPR 's approval. Funding of deductib l es and /or self-insured retentions mainta i ned 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 proc ure and maintain insurance that complies with the requirements set forth in this Attachment A including the
additional insured, primary and non-contributory and wa i ver of subrogation requ i rements . 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 i ndemnificati on
obligations of Section 15 of this Subcontract. Nothing in th ese insurance requirements shall be deemed to limit
Subcontractor's liability under this Subcontract. The insu r ance r equirements are set forth as minimum amounts and
shall not be construed to re l ieve Subcontractor for liability in excess of such coverage, no r 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 brea c h 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 Subcontra ctor's failure to obtain or maintain i nsurance shall be treated as
delay due to Subcontractor's breach of contract.
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 again st all other subcontractors and Owner for loss or damage to
the extent reimbursed by Builder's Risk or any other property or equipment insurance app li cable to the Work, except
such rights as they may have to the proceeds of such insurance. If the policies of insuranc e referred to in th is 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 w i ll cause them to be so endorsed or obtain such consent.
Upon written request of Subcontractor and if available to DPR , DPR sh all provide Subcontr actor 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 prope rty or equipment project-specific insurance purchased by Owner or DPR
provides coverage to Subcontractor for loss or damage to Subcontractor's Work, Subcontr actor shall be responsible for
the insurance policy deductible amount applicable to the los s or damage to Subcontractor's Work and/or t he damage to
other work caused by Subcontracto r .
If not covered under the Builder's Risk policy of insurance or any other property or equipment i nsurance required by the
Agreement, Sub contractor shall procure and maintain at its own expense insurance for all s u ch other property and
equipment (whether owned, leased or rented ) and any porti ons of Subcontractor's Work st ored off the s it e or in trans i t.
If Owner or DPR has not purchased Bui lder's Ri sk or equivalent insurance including the fu ll i nsurable 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 provi ding all documentation
required or requested by the insurance company or compani es issuing the Builder's Risk policy in order to substantiate
Subcontractor's claim , and Subcontractor is bound by any ad j ustment made between DPR or Owner and the insurer(s ).
DPR's liability to Subcontractor for any such loss is in all c ases limited to amounts actually pa i d by the i nsurer(s) for
Subcontractor's claims . Nothing in this paragraph affects any provisions regarding coverage o r waivers of subrogation
i n the Subcontract Documents
Amended and Restated Design -Build Agreement and General Con ditions Between Owner, Development Manager and
Design/Builder -Exhibit "F"
Page 5
Insurance Requirements by Trade
T ra de Category I Fyl! lnsyra nce & Mold Regyjremen ts
Infection Control
Tilt-Up Concrete
Glass-Fiber-Reinforced Concrete
Stone/Marble (Adhered)
Stone/Marble (Mechanically Fastened)
Expansion Control
Dampp roofing and Waterp roofing
Exterior Insulation and Finish Systems (EIFS)
M etal Roof and Wall Panels
Roofing
Flashing and Sheet Metal Joint
Sealants
Entrances
A utomatic
Windows
Skylights
and Storefronts
Entrance
Wood &
Gl ass & Glazing (Exteri o r )
Doors
Vinyl
Trade Category II Fyl! lnsyrance & Cond jt jonal Mold Regyjremen ts
Groundwater Treatment Systems
Demolition
Dewatering
Tunneling, Boring and Jacking
Fountains & Water Features
Landscaping & Irrigation
Cast -in-Place Conc rete (Co ntractors)
Pneumatically Placed Concrete (Shotcrete )
Sand & Water Blasting
Precast Concrete
Cementitious Decks and Underlayment
Trade Category Ill Fyl! lnsyran ce & No Mold Regyjrement s
Testing & Inspection Services
Canst . Elevator/Hoist/Cranes
Scaffolding
Construction Aids
Traffic Control
Jobsite Security Guard Service Survey
& Layout
Machinery & Equipment Moving (Rigging)
Sh oring and Underpinning
Earthwork
Soil Stabilization & Erosion Control
Soi l Treatment
Driven Piles
Site Utilities
Site Utilities (Dry)-Electrical & Tel /Data
Lath & Plaster
Tile
Louvers & Vents
Envi ronmentally Controll ed Rooms
Clean Rooms
Pre-Engineered Structures
Hydrau l ic Elevators and Lifts
Process Piping
Medical Gases
Fire Protection
Pre -Action Fire Suppression
Plumbing
Heating Ventilating Air Co n ditioning
El ectrical
Instrumentation & Controls
Buildi ng Systems Controls
Site Remediation & HazMat Abatement
Concrete Restoration and Clean i ng
M asonry
Wood Framing
Glass & Glazing (Interior)
Specialty Glazing Framing
& Drywa ll Painting &
Wallcovering
Commercial Laundry & Dry Cleaning Food
Service Equipment
Residen t ia l Laundry/Kitchen Eq uipment
Swimming Pools and Spas
Traffic Signs & Signals
Asphalt Concrete Paving
Paving Specialties Concrete
Unit Pavers
Athletic and Rec reational Surfaces
Fences and Gates
Retaining W alls
Structural Excavati o n & Backfi ll
Concrete Formwo rk (Non-Skin)
Concrete Accessories Concret e
Reinforcement
Post-Tensioning
Concrete Pump
Concrete Finishing
A mended and Restated Design -Build Agreement and Genera l Conditions Between Owner, Development M an ager and
Design/Builder -Exhibit "F"
Page 6
Trade Category Ill fyl! lnsyrance & No Mold Regyjrements !continued!
Granite Countertops
Welding
Structural Steel
Structural Steel Erection
Metal Joistsffrusses
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 Mjnjmym lnsyrance & No Mold Regyjrements
Temporary Facilities and Controls
Jobsite Trailer Rental & Lease
Temporary Barriers, Enclosures & Fencing
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 Dev i ces
Window Washing Equ i pment
Theater and Stage Equ i pment
Retail Fixtures & Showcases
Loading Dock Equipment
Athletic, Recreation, & Therapy Equ i pment
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
Postal Specialties
Audio -Visual Equipment
Parking Control Equipment
Rugs and Mats
Window Treatments
Toilet Partitions & Compartments
Cubicle Track & Curtains
Flagpoles
Wall & Corner Guards
Wire Mesh Partitions
Telephone Specialties
Toilet & Bath Accessories
Shower & Tub Door
Amended and Restated Design -Build Agreement and General Conditions Between Owner, Development Manager and
Design/Builder -Exhibit "F"
Page 7
ISO I Commercial General Liability Forms I 07 /01 /04
POLICY NUMBER : CG 20 37 0704
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): Location And Description Of Completed Operations
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 .
Information required to complete this Schedule , if not shown above , will be shown in the Declarations .
Section II --Who Is An insured is amended to i nclude as an additional insured the person(s) o r organization (s ) shown in the
Schedule, but only with respect to liability for "bodily injury" or "property damage" caused , in whole or i n part, by "your
work" at the location designated and described in the schedule of this endorsement performed for that additional insured
and included in the "products-completed operations hazard "
G.20 .37 .07 04 ©ISO Properties , lnc .,2004
©ISO Properties , Inc.
Amended and Res t ated Design -Build Agreement and General Conditi ons Between Owner, Development Manager and
Design/Builder -Exhibit "F"
Page 8
IS O I Commercia l General Li ability Fo rm s I 07/01 /04
POLI CY NUM BER: COMMERCIAL GENERAL LIABILITY
CG 20 10 0704
THIS ENDORSEMENT CHANGES THE POLICY . PLEASE READ IT
CAREFULLY.
ADDITIONAL INSURED -OWNERS, LESSEES OR
CONTRACTORS -SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies in su rance p r ovided under t he following :
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person(s)
Or Organization(s): Location (s) Of Covered Operat ions
DPR Construct ion , A General Partnership , its jo int
venture and joint venture partner , where applicabl e,
its/their officers , owners , employees , agents , parents ,
partners , subsidiaries and affiliates ; the Owner and
any pe rson or o rganization that Owner requires by
written contract
Owne r and its subs idi aries and affi liates , and th e ir respe ctive
d irecto rs , office rs , em ployee s and agents.
Info rmation required to co m ple te t his Sc hedule , if no t show n above , will be shown in the Declarat io ns .
A. Section II --Wh o Is An Ins ured is amend ed to incl ude as an additi o nal insu red the pers on(s) or orga ni za t ion(s ) sh own in
the Schedule, but only w ith respect to li ability for "bo d i ly injury", "property damage" or "personal an d advertising injury"
caused, in w hole or in part, by :
1 . Your acts o r omissio ns; o r
2 . The acts o r omissions of those act i ng on your beha lf ;
in the performance of your ong o i ng o peratio ns f or the additi o n al insured(s) at the locati on(s) designated a bo v e.
B . W ith respect to t he insurance afforded t o t hese add itiona l insureds, the following additional exclusions apply:
This insurance does not apply to "bo d ily inju ry " o r "property damage " occurring afte r:
1. All work, incl uding m aterials, pa rts or equip m ent f urnished in connection with suc h w ork, on t he project (other than
service, maintenance o r repairs ) to be performed by or on behalf of the additional insured (s) at the location of the
covered ope ratio ns has b ee n com pl et ed ; o r
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 othe r t han another contractor or su bcontractor engaged in performing operations for a principal as a part
of the same project.
Am ended and Restated Design-Bui l d Agreement and Genera l Conditions Between Owner, Deve l opment Ma n ager and
Design/Bui l der -Exhibit "F"
Page 9
WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY
we oo o3 13
2nd Rep rint Effective Apri/1, 7984 Advisory
WAIVER OF OUR RIG HT TO RECOVER FROM OTHERS
ENDORSEMENT
We have the right to recover our payments from anyone liable for an injury covered by this po l ic y . W e w i ll not
enforce our r ight against t h e person or o rgan iz ation n amed i n the Schedu l e . (This agreement applies on ly to the
extent that you perform w ork u nder a w ritten contract t hat requires you to obtain this ag reement fro m us.)
This agreement shall not operate directly or ind i rect ly to benefit anyone not named in the Schedule .
Schedu l e
No tes:
DPR Construction , A General Partnership, its joint venture and joint ventu re 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 a nd affil i ates, an d their res p ective d i rectors, officers , employees a nd
agents .
Amended and Restated Design -Build Agreeme nt and General Conditi ons Between Owner, Development Ma n age r an d
Design/Builder -Exhibit "F"
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 i nsurance provided under the follow i n g: CO MM ERCIAL GE N ERAL LIABILI TY COVER A GE
PART
SCHEDULE
Name of Person or Organization :
DPR Construction , A General Partnersh ip, its joint venture and joint venture partner, where applicable,
its/their officers , owners, employees, agents, parents, partners, subsidiaries an d affiliates; the Owner
and any person or organization that Owner requires by written contract
Owner and its subsid i aries and affiliates, and their re s pective directors, officers, employees and age nts.
(If no entry appears above, informatio n required to complete this endorsement will be shown in the
Declarations as applicable to this endorsement.)
The T RANSFER O F RIGHTS OF RECOVE RY A GAINST OTHERS TO US Condition (Section IV -
COM M ERCIAL GENERAL LI AB ILITY CONDI TIONS) is amended by the addit ion of the fo ll o w ing :
We waive any right of rec o very we may have against the perso n or organization shown in the
Sc h edule above because of payme nts we make for injury or damage arising out of your ongoing
operations or "y our wo r k " done unde r a contract with that p erson or o rganization and included in
the "products-completed operati ons hazard ". This waiver app l ies only to the person or organizati o n shown
in the Schedule above .
Am ended and Restated Design -Bui ld A greement and General Condit ions Between Owner, De v elopment Manager and
Design/Bui lder-Exhibit "F"
Page 1
