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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 ·~ ~ ~~~: s!Uf~l: ~ii II~ • 1·· =·<~=hi J ' • '· ~~~,i~i! ~~ 1 ~··• IIi; • ~ 1" i l~i= i~i:~-1• p! !·'· ,·~i·ia• ~~ i ·§~i :l!li} !~ • ~ ., I s· ~ s : ·ill =~~i;' ;i ~ d§ NH;i ~~ ·~f d~·~.; 1• 1§5 ~··11>5 h i! •i:; ~ 'I • • j I : I i ( i i ! ! i i . ' . ' . ' " f TOPOGRAPHIC SURVEY OF A PORTlON OF A 2fi ACRE SITE IN THE WilliAM SCOn UPPER LEAGUE ABSTRACT&$ HARRIS COUNTY, TEXAS (BAYLAND ISLAND) ' ! il r ! ~ .il ... ~~~i~i :i~'l! ? IH /lo • = ~ ll Im I ! I. :-z~ ..... .; ') ~ .x •• ~~~i~i .. ,,., i •• §~: -m ~~ o• ~~ ~~ ~· ~UI ' .. ).;. ~~,>'• ~:~ ~~· .. ~ ... w ~ , :;; ' ·, li I E.~ •=•~ \ .... ~~~i ', '~ . . ',, . .· ' .. . y E ( , ,~, , . ,. ~ . ',, ' ,-.. " .. '---".!_lti / , • •• , ;:... ooa•l '"' 1 ~---.., •• ,,~, t II -. ., •. R ~~ i, .!;> i I , ! ") ..:t-0 ~~ "1i' I " ! \ I ! ! ') ! ¥~ ~~ ~0 !i: ~: > z z tTl :>< N 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 J '" t . I'' 11 $11 $25 $17 , .. $_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 ------------------------------$193. ____________ ~ $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 .... .......... ~-<--.·ADA. ........ _ ,.,_ ........... _ ,..,_ ·-......... ---&-.....,_ ·-_,_._ --........ _aoa• ~-"·........ "a• --._. ....... ........... --....... _ ...... ~ --~Nilik:t.lty M&w....._ M&W...._ --................ ,_.,_ -- - ---_. .. _ Mtp ............ -...._ -.. ... ._ --.... ~---- ............ EXHIBIT "D" SH ERATON -THE PROGRAM ---.. II --,._ ..... ..- u-...... ,_..~ .... 0-'J ..... llD ...... ,.. ....... ,__, ,__, ,_ ..,. .,. """ ..... ..... '-""' '-""' ..- '-""' ...... ..... ._ ..... ·= ..... . .... Ul' ..... ....... ..... --.... "--._., 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 Land C.,nlr .. u Lmd (Executed 11 /26/12) L.:utd E:unest .\lo ne} . \ddmonal E:O.I $/En Fcss Suhtutill So re Cos11 .\rditii.'UUr.iJ & li'.li!-;Ull't'nll)\ l lntd :md Cunv r :Cntrr ln!Nl<>r Dc,-~lg:Jl ,uul C.1.vtl {ul 5 1-.:PFF Rcunbunablu / den~ Iope r Tr.~on:l De•tgn /Rwklu Fc:c ()wncr'$ D~ l:>tltb't:m .. e ()wuer') Cummgc nq fo.l :ukc:t Stu1h I 'pd~tn ~nl Rc:pMt -gcu tech Topo Sun·~;\' Em·tnmmcnt:tl l.u> l'crmuand l'l.uJ(]lcl..k Brand/Opuamr Tc:~..h. Sc.-rYil..es I-ce s (.onstrtKhon ,\!:auger Exhibit E ~onsuucti011 Puiod Cost Schedule -P;~ge I of 2 PRE-DEVELOPMENT PERIOD Fe: b-Ig ,\pr-IM ,\Ia -HI h;t.ndliSc . \ppbunon h :c _s _____ . __ ! _____ . __ s ______ s ______ . __ s _____ . __ s _______ s _____ . __ s _____ . __ s ____ __ Suh wtal S<Jft Co m s s s s 11).1)01) s Moodd Room l~o~nl u•~t~ w DI'H. H&E Suh-tot;ll ;\I(J(Id Room Developer Fees: llotd I I I I I I I s I Cunft-retKr Ct-nlt"r _ 1 _____ ._ _ s ______ I _______ _s ______ _1 _____ ._ ~ ~ ~ ~ s 10,000 s 10,000 s 10,000 s 10,000 Sub tor;U S 10,000 10,000 20,000 10 000 10.0110 10.01'10 2fl,(JOil 10,001) IO,IJ()O ~I,(J(J() 40 ,0110 50,1XIO Sources or Funds: MOO sn sn ~) ~) ~) Sll ~) ~) Slt)JWWJ ~~ Ci ty of Baytown .1!! .1!! .1!! .1!! .1!! 1l!l.!m 1l!l.!!OO 1l!l.!!OO 1l!l.!.!!l.l 10 10 10 10 so SltJ,OOJ SIO,UOO s~.{ti.Xl SIU,tJIJO Costs By PhaR : C Garfield Public/Private PRIVILEGED AND CO NFIDENTIAL I I lun -IH Schnnati (throug h 9 ]u i-HI _s ______ ~ R7,400 s s _I ______ _ I ______ s 87 ,400 H7.4011 s 5u,OOO s 137,400 ~~ $52,-'41) l!1 U!.2lil 10 SS7,401J fu:·dcnl:!;tpwcol MOD 10 Ciry lliLiill p h 11~c rural $1'7,400 PRINTED 9/14/2018 3:00 PM DESIG N PERJ O O tc:Design I 1/10/2018) L:uul C.JnTr.tLT Land (Execut ed 11 /26/12) Lu1d ElmkH ,\J une ~ \dditmnal E\1 $/En Fr~s Sort Cotll .\n..hm·uur.1l & Engmc~:nng Subtotal lltud and l:..nw t:C:nte r S lnttn<.lr Ot-,•g.• ,md Cn"Ll (u l S "PFF I! Rt:tmbu"ablu / dcnclo pcr l t ll\"cl S Dt:)lh'll /Hw1der Fee Owner's Dlll: Ddib't:llLt" O wner')Conllllb>t:nq ,\JarkcTStutlv l lpdm:s Scnl Rcpcm gco ltLh rtlpoS..·n·n E,,,,.,,n mcnt;:~l ,\ux-18 i ~.lltJO !H.!HO 1 ~.(I(,(J tl .9~1 '.I).IJOIJ "i,OUII !S,OOIJ !fi,(JUI.I ! ! I s s E xhibi t E Pre--Construc-tion PrnOd Cost Sch Nuk • P:~Kf! 2 of 2 De1ign De"elo pment (G MP Ooa) (throu gh 11/21/2018) !'c)-1/! (A,.t-11:1 ! I !7.'i01J s 27500 27;::.1.)() !1)7,0'' 107,4 14 '\07,414 li,OOO 15.000 ! ~.tJOO 3,4M}IJ 3.f'M)I) ! J.noo ~s.ooo 5,0fJU s 5.000 5.("1110 li,OOO ! li,l)()l) IS,OOIJ IGMP I Cloo;~g / I NTP (1/10/19) (~;;:;~~ (1/29 /19) lfor Conltructi on Oocumen11 3/10/2019) Dl'L ·I K j;uJ -19 2751)() 27500 ! '\(1(,5(>\ ! '\0!.,1>25 I 3,11ill) I )J Mll) ! 5,111.)() ! 5,(1()() s l iJ)()Il 15Jlllll 10,(1(1() (tlvough Feb-I') s !7500 :8(,,t•H JJMlll :!5.000 ! 5,\l()t) !7Jo11J ! I ! !4,\Ri S !4.\S"i 24\Si S !4,1Si S !4.385 5 2-Utli S 2-l .lKi I ~l:•r-1 ') f .uy l'umu and l'l.u1 Chc:tk Umnd /O pc nunr Tc:Lh Stn'tl..e~ h~c~ 14.(.0! I s 14.MI2 I 14.1.62 1 s l~.h62 1 s 1~.1162 1 s l.J ,h(l2 1 5 14,N•2 s FGMP I (4/10/19) APr-I') ~1:11 -IIJ S l · S · I I S ! · ! · (..tm struc:uo n ,\J an~r J·r!mdUSt".\pplt1.,11101l ht' Suh tnt:~] S.1 ft Com ~I s ~ll .iM I ~I ~I ~I s ~c.l7:1 ~1 -s ______ l _s ______ l _s ____ __ Moodd Room hilrd u><h 111 DI'R H &E Sub-tu r.al ,\lu d cl Roorn Developer Fees: I lord Sub-rot.tl Dc\·duper h ei Subtot.U .\lv n4hl ) TOT.\L') f.umulat1ve TOT.\L') So urces o f Fun ds: MDO City of 8 :&)10wn Cosu By Phase: C Garfield Pub lic/?rivate 61),()()(J 60.1JIJI) ~ 10fl,4J(l!)() s ltll),41 6 10t),4J(, 5 lf)t),416 s 1()1),41 6 s 1011.417 s 5 66.~44 S M ,'J44 66,'J44 S 66.'.144 S 66,1.144 S M.IJ-4 5 S 1 1 "'·"''l ~l ~l ~l ~l s 167.>•'1_s _______ l s------.-~------.-l s 638,637 s 568,940 s 579,321 $ 729 21 $ 563,470 $ 569,534 $ 4U,J79 s s s (oll!,(>l~ I ! 568.1.1.44'; Is 579.3!1 Is 721J.J21,( s 5(13,470 1 5 5(.~.53~ I, 4 13.379 . J ! J ! s nf,,OJ7 s 1.34-l.'lTI S 1,')24.298 5 2.(.53,6 1') 5 3,!17,UH8 S 3,7M6,(,")"> s 4,!lll.l,(l()() s 4,20UJII(I 5 4,2tXI,OUO 5 4,200,\10(1 5402,1133 5357.427 $364,1)71 5383,27 1 5353.9:!f> 5357JSI)7 S!fH.5f•! ~· so ~· 5!36.6ll.J 5211 .513 $:?.1;,!511 5~.1150 5!09.543 5211.727 5148.816 $Jl so so 511\14,(,17 S'i<.M,')40 s;,..J,,~I 5WJ,121 5:,U\.470 5WJ514 $41\.H'J !iJ !iJ !iJ S<lwJwk llll:.t Cll:i G~l~ and Ck!sio& S41JS,72.K 1,!01.6i:?. S~t19.MW !iJ ~ s= 15..iM21 l'.! 5(,\H,(l\7 Sl,KTI,:,X! 5 1 ,:;~,.\8! !iJ PR IVILEGED AND CO NFI DENTIAL T OTAL T o t:~l 24{1 ,000 s 2,054 .522 65,000 26,95 1 80 ,000 35,000 127,639 26,000 10,000 170,693 102,634 s 2,938,438 $ $ 6<1,000 6<1.000 120,000 602,497 401,665 1,004,162 4,062,600 4,062,600 4,200 ,000 2,545,537 L..l.l.M.W s 4,0KU,UOIJ IQl'AI. ~ ~ ~ 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