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Ordinance No. 6,428921112 -4 ORDINANCE NO. 6428 AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO • EXECUTE AND THE CITY CLERK TO ATTEST TO A CONTRACT WITH MILLER BROWN DEVELOPMENT COMPANY, INC. FOR THE DEVELOPMENT OF THE BAYLAND PARK HOTEL AND MARINA; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN, THE SUM OF FOUR HUNDRED FIFTEEN THOUSAND AND N01100 ($415,000.00) DOLLARS; 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 and directs the Mayor and City Clerk of the City of Baytown to execute and attest to a contract with Miller Brown Development Company, Inc. A copy of said contract is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Miller Brown Development Company, Inc. of the sum of FOUR HUNDRED FIFTEEN THOUSAND AND N01100 ($415,000.00) DOLLARS, pursuant to the Agreement. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown, this the 12th day of November, 1992. BO J C ILLE, ayor ATTEST: 'LEEK P. iIALL, City Clerk X�LL� ACIO IREZ, R., City Attorney 0 legal /council /11- 12- 92autWCoarina CONTRACT • FOR DEVELOPMENT OF BAYLAND PARR HOTEL AND MARINA This contract for the development of the Bayland Park Hotel and Marina (agreement) is entered into as of this the day of , 1992, by and between the City of Baytown, Texas (City) and Miller Brown Development Company, Inc. (Developer) . As used herein, the term "City Manager" shall mean the City Manager of the City of Baytown or his designee. As used herein, the term "start of construction of Hotel" shall mean the date on which the process of excavation of the Hotel site has begun, provided that financing for Hotel construction has already been obtained by the Developer and all contracts and documentation relating to the construction of the hotel have been duly executed. As used herein, the term "Hotel" shall mean the Hotel building itself, as described in the proposal submitted to the City by the Developer on March 6, 1992, together with such other appurtenant facilities such as parking facilities and any civic center or convention center which are not financed through the use of public funds (including general obligation bonds or revenue bonds). I. SCOPE OF WORK A. Hotel Development Developer shall obtain financing for the proposed hotel at Bayland Park. All expenses related to the hotel shall be Developer's responsibility. Developer shall prepare designs • and plans for the hotel at their own expense. In the event EXHIBIT A �• Developer is unsuccessful in providing financing within the specified time frame of Lease agreement causing lease to terminate within.. three years of its beginning, Developer shall transfer prepared plans, designs, and all studies and specifications on hotel and marina to the City at no charge, as well as forfeiture of performance retainer as described in Section II below. B. Site Plan Architectural Design and Engineering Services The City shall maintain absolute and final authority for approval and acceptance of the master plan, marina design and attendant constituents. Services to be performed by the Developer shall consist of preparation of working drawings and specifications for the construction of a 500 slip marina and related park improvements approved by the City Manager. The plans shall be accurate and adequate for all intended purposes, and shall include a specific area master plan, architectural plans, structural engineering drawings and calculations, plumbing, HVAC and electrical plans and specifications, and civil engineering. 1. Master Plan The objective of the master plan is to catalogue the significant features of the development and to provide standards and guidelines for their preservation and development. E The master plan shall include: • a. A site survey identifying existing conditions. b. A site development plan showing all proposed project elements. C, A color rendered site plan for presentation use. d. A comprehensive site development standards text. Z. Construction Documents The Developer expressly warrants that any and all individuals or companies engaged to prepare and coordinate all necessary drawings and specifications for the marina shall possess academic and professional experience directly involved in marina design and construction, and licensed to perform such services in Texas. Toward this end, the Developer will identify and submit qualifications to the City for its concurrence prior to engaging, hiring, consulting with or contracting with any firm, group of individuals or persons to prepare specifications, drawings or provide advice relative to the marina. However, this concurrence by the City of Baytown shall not release the Developer from its warranties and obligations under this Agreement. Developer shall prepare and /or coordinate all necessary drawings and specifications for construction of the project, including but not limited to the following: a. Delineation and details for roadway and parking area construction. 10 3 b. Design, engineering and details for construction of • the island access bridge. C. Boat launch ramps. d. Drainage and grading plans. e. Utility plans. f. Signage program including design and locations. g. Shoreline preservation /mitigation of erosion plans. h. Delineation and details for sidewalk /trail construction. i. Plans for dredging, breakwater construction, channel markers. j. Design and engineering for public rest rooms, retail buildings. k. Design and engineering for fueling docks. 1. Acquisition of permits, any permit fees to be paid by the City. M. Coordinate and ensure the completion of acceptable plans and specifications of any and all components of the project prepared by the contractor or his building, dock, or other material supplier or any subcontractor. Developer will ensure and warrant that all plans and specifications so prepared are adequate for use during the construction of the marina and that the components so described in said plans and specifications will be adequate for their intended purpose. Such • 4 plans and specifications shall be provided at no • additional cost to the City. Upon completion- of the plans and engineering, bid documents will be prepared and issued to the bidders as directed by the City Manager or his designee. The Developer expressly warrants that all construction documents, design documents, and plans including component plans /specifications provided by contractors or suppliers shall be accurate for all intended purposes. Developer shall indemnify and hold harmless the City, its employees, officers, agents, servants and representatives for any and all claims of any nature whatsoever arising out of or relating to any inaccuracies or inadequacies whatsoever in the planning, design, and construction documents prepared by Developer or at the instructions of the Developer, or reviewed by the Developer, pursuant to this Agreement. 3. Project Management Project management services to be performed by Developer shall include the following: a. Review bidders qualifications. b. Review bids, report on bidders qualifications to the City Manager, and make recommendations to the City. • 5 C. Perform job site inspections as required to determine percentage of completion of work, payment authorizations, and conformance with contract documents. d. Developer shall provide a project representative to perform visual on -site inspections of work in progress at intervals of construction deemed necessary to ensure conformance of design, quality of construction, and compliance with completion date of contract, and make periodic reports thereon to the City Manager. e. Upon completion of construction, provide evidence to the City Manager and applicable agencies that all work performed (i.e. dredging, mitigation) meets requirements of agencies issuing permits. The construction phase will commence with the award of the initial contract for construction and, together with the project representative's obligation to provide services under this agreement, will end when final payment to all contractors is paid and a certificate of completion is issued by the City Engineer. The Project Representative shall advise and consult with the City Manager during the construction phase. All instructions to the Contractor shall be forwarded through the Project Representative. The Project Representative shall have authority to act on behalf of the City only to the extent provided in the Contract Documents unless otherwise modified by written instrument. • 6 The Project Representative shall examine the site at intervals appropriate to the stage of construction, or as otherwise agreed -by the Project Representative in writing, to become specifically familiar with the progress and quality of work and to determine in general if work is proceeding in accordance with Contract Documents. On the basis of such on -site examinations as a Project Representative, the Project Representative shall keep the City Manager informed of the progress and quality of work, and shall guard the City against defects and deficiencies in work of the Contractor, or overcharges by the Contractor or any Subcontractor. The Project Representative shall not be responsible for, nor have control or charge of construction means, methods, techniques, sequences or procedures or safety precautions and programs in connection with the Project. The Project Representative shall not have control over, the acts or omissions of the Contractors, Subcontractors, any of their agents or employees, or any other persons performing any work. The Project Representative shall at all times have access to the Project site, wherever it is in preparation or progress. Based on the Project Representative's observations at the site, the Project Representative shall determine the amounts owing to the Contractors and shall issue a Project • 7 Certificate for Payment in such amounts, as provided in the Contract Documents. The Project Representative shall have authority to reject work which does not conform to the Contract Documents, and whenever, in the Project Representative's reasonable opinion, it is necessary or advisable for the implementation of the intent of the Contract Documents, the Project Representative shall have authority to require special inspection or testing of work in accordance with the provisions of the Contract Documents, whether or not such work be then fabricated, installed or completed. The Project Representative shall receive Contractors' submittals such as Shop Drawings, Product Data and Samples from the Contractor and shall review and approve or take other appropriate action upon them, but only for conformance with the design concept of the Project and with the information given in the Contract Documents. Such action shall be taken with reasonable promptness so as to cause no delay. The Project Representative's approval of a specific item shall not indicate approval of an assembly of which the item is a component. The Project Representative shall review and sign or take other appropriate action on Change Orders prepared by the Contractor for the City's authorization in accordance with the Contract Documents. • 8 • The Project Representative shall have authority to order minor changes in work not involving an adjustment in a contract sum or dh extension of a contract time and which are not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order issued through the Contractor. The Project Representative shall assist the Contractor in receiving and forwarding to the City for the City Manager's review written warranties and related documents assembled by the Contractors. 4. Project Representation Beyond Designated Services No provision of allocation of funds exist for additional services in relation to the construction management phase of this contract. Should the need for such services arise, the City shall acquire or perform the service at its discretion and Developer shall cooperate with any person or entity providing such service on behalf of the City. 5. Estimated Time Schedule Activities Months 1. Architectural Design and Engineering 4 2. Government Review and Approvals 1 3. Acquisition, Review, and Award of Bid 1.5 6. The Developer shall indemnify and hold harmless the City, its employees, officers, agents, servants, and representatives from any and all claims of any nature whatsoever arising out of or relating to Developers �i 9 project management services and other professional • services provided by Developer pursuant to this agreement. II. COMPENSATION FOR DESIGNATED SERVICES A. Document Preparation and Construction Plan 1. Architectural Design /Planning 2. Architectural Construction Documents 3. Structural Plans 4. Electrical /Mechanical /Plumbing Plans 5. Civil Engineering Stipulated Sum .. .......................$415,000 This total includes the coordination and production of acceptable plans and specifications of any and all components of the project prepared by the contractor or any of his material suppliers or subcontractors. All fees, charges, and expenses are included in this amount. Compensation for designated services is based on a Project Budget of 4.7 million dollars. Any additional improvements in the project requested by the City which result in additional project costs in excess of the original budget of 4.7 million dollars requiring architectural or engineering services, shall be billed at a rate of 10% of additional project costs. Likewise, downsizing of the project which results in a lower project budget shall reduce the cost of architectural and engineering proportionately. Stipulated 0 10 sum shall include 25 complete sets of blue prints. Any iadditional printing shall be billed at standard reproduction rates. - B. Construction Management Services ..............$35,000. C. Schedule of Fees DOCUMENT PREPARATION PHASE: 1. Balance to be billed in progress payments monthly in accordance with percentage of completion of the work. The percentages for the monthly progress payment is expected to reflect the projected work program as reflected in Attachment "A" (to be supplied by developer) of this contract. 2. Monthly invoices shall reflect an amount equal to 24.1% of the total invoice to be retained by the City. City shall retain fees from monthly invoice to the maximum amount of $100,000.00. Developer shall receive any interest paid on retainer when deposited in an interest- bearing account which conforms with the City's investment policy. Interest payment to the Developer shall originate solely from the placement of retainer in an interest - paying repository and not the City of Baytown. City will release retained fees to the Developer upon start of the construction of the hotel. Developer will forfeit all rights to retained fees if the hotel is not under construction within three years from date of this � 9 11 agreement. Should, after the completion and • acceptance of the design phase, the City voluntarily elect to terminate the construction of the marina, the City shall release any and all retainage earned at that point, provided that Developer has not forfeited its rights to refund of retainage under the terms of this agreement and Developer has complied with all of its obligations under this agreement. 3. Payments during construction phase shall be due monthly. 4. Final payment for construction phase shall be due upon issuance of certificate of completion by the City Engineer. 5. Payments due Developer and unpaid under this agreement shall bear interest at the rate of 1.5% per month beginning 30 days following the receipt of the invoice for that payment. D. DEVELOPER'S PERFORMANCE DEPOSIT The City shall withhold a percentage of Developer's fees equal to $100,000. In the event the Developer does not start construction on the hotel within three years from date of this agreement, Developer will forfeit retained amount to City. The percentage withheld will be as indicated in schedule of fees. Upon Developer's start of construction of hotel, the City shall release any retained fees to the Developer. • 12 III. • LAND LEASE The City shall - provide Developer with a Land Lease on the Bayland Park property for the purpose of constructing and operating a hotel. The term of Lease will be 40 years at a rate of $1.00 per year and will commence upon acceptance and signing of the Land Lease agreement. Lease will be renegotiated at the end of its term. Lease to provide access to public marina. Lease will automatically terminate three years from start date if Developer has not started construction on hotel. City will provide underground water and sewer utilities of sufficient size to accommodate marina and hotel in accordance with the City Code as determined by the City Building Inspector. Such utility connections and infrastructure provided by the City shall extend to the southern terminus of the proposed bridge and Developer shall be responsible for any further extensions. Extension of additional necessary utility services to the marina shall be paid for out of marina construction costs. Developer shall be responsible for all construction of necessary additional utility extensions to the site of the hotel complex. IV. MARINA MANAGEMENT Developer and the City agree that both marina management and the hotel management shall use best efforts to co- operate with • 13 each other so as to ensure the efficient and profitable operation of both enterprises. V. SPECIAL CONDITIONS A. Tax Abatement Provided that the Developer has complied with all of its obligations under this agreement, then upon the start of hotel construction, the City Manager shall recommend to the City Council of the City of Baytown that a tax abatement shall be granted to the hotel in accordance with the tax abatement guidelines adopted by the City Council of the City of Baytown which are in effect at that time, and the City Manager shall recommend to the City Council that a variance to said guidelines be granted if any variance be needed in order to render such hotel accommodations eligible for tax abatement under said tax abatement guidelines. VI. This Agreement shall be construed under and in accordance with the laws of the State of Texas. All obligations of the parties created under this agreement are performable in Harris County, Texas, and the District Courts of Harris County, Texas, shall have jurisdiction to adjudicate all disputes arising under this agreement. Notwithstanding anything to the contrary or apparent contrary contained in this agreement, City and Developer hereby agree that no claims or disputes between City and Developer arising out of or relating to this agreement, to 0 14 a breach thereof, or to any of the work shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable State arbitration statute, including but not limited to the Texas General Arbitration Act, Texas Revised Civil Statutes Title 10, articles 224 through 249 -43, provided that in the event that City is subjected to an arbitration proceeding notwithstanding this provision, Developer consents to be joined in the arbitration proceeding if Developer's presence is required or requested by City for complete relief to be recorded in the arbitration proceeding. VII. In any action which may be brought to enforce the provisions of this agreement, the prevailing party in that action will be entitled to recover from the other reasonable attorneys fees. VIII. Developers rights under this agreement are not assignable. Any attempted assignment shall be void and shall render this agreement voidable at the election of the City. IB. This agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors and assigns of the parties to the agreement. 0 is X. • This agreement and the Lease agreement, referred to herein, contain the entire agreement between the City and the Developer. Any oral representations or modifications concerning the agreement made before or after its execution shall be of no force and effect, provided, however, that this agreement may be altered in the future by written agreement of the parties, signed by the party to be bound. XI. In the event that any one or more of the provisions contained in this agreement is for any reason held to be invalid, illegal or unenforceable in any respect, that invalidity, illegality or unenforceability will not affect any other provision of the agreement and this agreement will be construed as if it had never contained the invalid, illegal, or unenforceable provision and any other provisions hereof or thereof shall remain in full force and effect to the maximum extent permitted by applicable laws. XII. SAFETY AND HEALTH STANDARDS Developer shall examine contractor for compliance with the Texas Occupational Safety Act (Art. 518a, V.C.S.) and with all safety and health standards promulgated by the Secretary of Labor under Section 107 of the Contract Work Hours and Standards Act, published in 29 CFR part 1926 and adopted by the Secretary of Labor as occupational safety and health standards under • 16 the Williams- Steiger Occupational Safety and Health Act of 1970, • and to any other legislation enacted for the safety and health of the contractor employees. Such safety and health standards shall apply to all subcontractors and their employees as well as to the contractor and his employees. %III. CONFLICT OF INTEREST Developer shall exercise reasonable care and diligence to prevent any actions or conditions which could result in a conflict with City's best interests. This obligation shall apply to the activities of the employees and agents of Developer in their relations with the employees, and their families, of City and of third parties arising from contract and accomplishing services hereunder. Both parties efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing or offering substantial gifts, extravagant entertainment, payments, loans or other considerations for the purpose of influencing individuals to act contrary to City's best interest. urv. AUDIT RIGHTS BY CITY A. City's Rights City's duly authorized representatives shall have access at all reasonable times to all contractor's and subcontractor's personnel, job descriptions, employment and qualification records, books, records, correspondence, instructions, • 17 plans, drawings, receipts, vouchers, data stored in computers and memoranda of every description pertaining to work under this agreement for the purpose of auditing and verifying costs of work or for any other reasonable purpose. City's representatives shall have the right to reproduce other the aforesaid documents. B. Developer's Responsibility Developer shall preserve, and shall cause its contractors and subcontractors to preserve all aforesaid documents for a period of four years after completion and acceptance or termination of work. XV. WARRANTY Notwithstanding anything to the contrary or apparent contrary contained elsewhere in the agreement documents, all warranties and guaranties of Developer contained in the agreement documents shall be in addition to, and not in lieu of, City's claims and rights at law which shall continue for the applicable statute of limitations period with respect to any default, defective, non- complying or incomplete work. XVI. FUGITIVE EMISSIONS Fugitive emissions, such as road dust and dust generated by construction activities, must be controlled by wetting procedures and kept to a minimum. • 18 XVII. • HISTORICAL AND ENVIRONMENTAL COMPLIANCE Developer agrees - to comply with and require all contractors and subcontractors to comply with applicable laws, regulations, orders and guidance administered by the U.S. Environmental Protection Agency, the Texas Department of Natural Resources Environmental Protection Division and any local agency(s) with jurisdiction. The matters covered by this paragraph include, without limitation, discharges of waste to air, water or land, solid waste disposal, and management of "hazardous substances ". Developer shall comply with all Laws of the State of Texas concerning the preservation of Historical sites. XVIII. COMPLIANCE WITH OWNER DIRECTIONS Developer agrees that when the Developer or its employees, agents or subcontractors are on City's site, building or grounds at that site, the Developer, its employees, agents or subcontractors shall comply with City's directions, rules and regulations for Developer's or City's employees on the site. Developer agrees to be responsible for any wastes generated through the Developer's work on City's site. Developer shall remove wastes from City's site and shall provide for disposal which is proper and in compliance with applicable federal, state and local laws and regulations. is 19 XIX. • INTENT OF PARTIES It is the intent-of the parties to this agreement that there is no relationship of partnership nor joint venture created by this agreement, that there is no fiduciary relationship created and that any relationship between the parties is entirely contractual in nature, as manifested by this agreement and the Lease agreement, referred to herein. AUTHORITY. The officers executing this agreement on behalf of the parties hereby confirm that such officers have full authority to execute this agreement and to bind the party he /she represents. IN WITNESS WHEREOF, the undersigned have executed this agreement as of day and year first above written. MILLER BROWN DEVELOPMENT COMPANY, INC. BY: Timothy D. Miller, Chief Executive Officer THE CITY OF BAYTOWN BY: Bobby J. Credille, Mayor • 20 0 ATTACHMENT A- PROJECTED WORK PROGRAM AND PAYMENT SCHEDULE PAYMENTS DUE THE DEVELOPER SHALL BE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE: Breakdown of fees: (Stipulated sum $415,000.00) Master planning /Preliminary design ................... 20% Final design .. ............................... 10% Construction documents: Architectural ............................ 30% Structural/Civil engineering (25%) ............... 25% Mechanical/Plumbing/Electrical ................. 10% Construction administration ......................... 5% Project Management ($35,000.00) Month no. 1 Master planning (80 %) ............................... $66,400.00 Final design (25 %) ... ............................... 10,375.00 Construction documents: Architectural ...... ............................... 0.00 Civil engineering (25%) .......................... 25,937.50 M/P /E ............. ...........................0.00 Construction administration ............................ 0.00 Month no. 2 Master planning (20%) ............................... 16, 600.00 Final design (75 %) ... ............................... 31,125.00 Construction documents: Architectural (30%) ............................. 37, 350.00 Structural/Civil engineering (35 %) .................... 36,312.50 M/P /E (25 %) .. ............................... 10, 375.00 Construction administration ............................ 0.00 Month no. 3 Construction documents: Architectural (40 %) ............................. 49,800.00 Structural /Civil engineering (25%) .................... 25,937.50 M/P /E (35%) .. ............................... 14,525.00 Construction administration ............................ 0.00 U • Month no. 4 Construction documents: Architectural (30 %) ............................. 37,350.00 Structural/Civil engineering (15%) .................... 15,562.50 M/P /E (40 %) .. ............................... 16,600.00 Construction administration ............................ 0.00 Month no. 5 thru 11 Construction administration (15%) ......................... 3,112.50 Month no. 12 Construction administration (10 %) ......................... 2,075.00 The preceding breakdown represents the maximum anticipated monthly billings. 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B. Site Plan, Architectural Desicxn and Enaineerina Services The City shall maintain absolute and final authority for approval and acceptance of the master plan, marina design and attendant constituents. Services to be performed by the Developer shall consist of preparation of working drawings and specifications for the construction of a 500 slip marina and related park improvements approved by the City Manager. The plans shall be accurate and adequate for all intended purposes, and shall include a specific area master plan, architectural plans, structural engineering drawings and calculations, plumbing, HVAC and electrical plans and specifications, and civil engineering. 1. Master Plan The objective of the master plan is to catalogue the significant features of the development and to provide standards and guidelines for their preservation and development. 2 ti a The master plan shall include: a. A site survey identifying existing conditions. b. A site development plan showing all proposed project elements. C. A color rendered site plan for presentation use. d. A comprehensive site development standards text. 2 . Construction Documents The Developer expressly warrants that any and all individuals or companies engaged to prepare and coordinate all necessary drawings and specifications for the marina shall possess academic and professional experience directly involved in marina design and construction, and licensed to perform such services in Texas. Toward this end, the Developer will identify and submit qualifications to the City for its concurrence prior to engaging, hiring, consulting with or contracting with any firm, group of individuals or - persons to prepare specifications, drawings or provide advice relative to the marina. However, this concurrence by the City of Baytown shall not release . the Developer from its warranties and obligations under this Agreement. Developer shall prepare and/or coordinate all necessary drawings and specifications for construction of the project, including but not limited to the following: a. Delineation and details for roadway and parking area construction. 3 b. Design, engineering and details for construction of the island access bridge. c. Boat launch ramps. d. Drainage and grading plans. e. Utility plans. • f. Signage program including design and locations. g. Shoreline preservation/mitigation of erosion plans. h. Delineation and details for sidewalk/trail construction. i. Plans for dredging, breakwater construction, channel markers. j . Design and engineering for public rest rooms, retail buildings. k. Design and engineering for fueling docks. 1. Acquisition of permits, any permit fees to be paid by the City. m. Coordinate and ensure the completion of acceptable plans and specifications of any and all components of the project prepared by the contractor or his building, dock, or other material supplier or any subcontractor. Developer will ensure and warrant that all plans and specifications so prepared are adequate for use during the construction of the marina and that the components so described in said plans and specifications will be adequate for their intended purpose. Such 4 plans and specifications shall be provided at no additional cost to the City. Upon completion of the plans and engineering, bid documents will be prepared and issued to the bidders as directed by the City Manager' or his designee. The Developer expressly warrants that all construction documents, design documents, and plans including component plans/specifications provided by contractors or suppliers shall be accurate for all intended purposes. Developer shall indemnify and hold harmless the City, its employees, officers, agents, servants and representatives for any and all claims of any nature whatsoever arising out of or relating to any inaccuracies or inadequacies whatsoever in the planning, design, and construction documents prepared by Developer or at the instructions of the Developer, or reviewed by the Developer, pursuant to this Agreement. 3 , Project Management Project management services to be performed by Developer shall include the following: a. Review bidders qualifications. b. Review bids, report on bidders qualifications to the City Manager, and make recommendations to the City. 5 c. Perform job site inspections as required to determine percentage of completion of work, payment authorizations, and conformance with contract documents. d. Developer shall provide a project representative to perform visual on-site 'inspections of work in progress at intervals of construction deemed necessary to ensure conformance of design, quality of construction, and compliance with completion date of contract, and make periodic reports thereon to the City Manager. e. Upon completion of construction, provide evidence to the City Manager and applicable agencies that all work performed (i.ee dredging, mitigation) meets requirements of agencies issuing permits. The construction phase will commence with the award of the initial contract for construction and, together with the project representative ' s obligation to provide services under this agreement, will end when final payment to all contractors is paid and a certificate of completion is issued by the City Engineer. The Project Representative shall advise and consult with the City Manager during the construction phase. All instructions to the Contractor shall be forwarded through the Project Representative. The Project Representative shall have authority to act on behalf of the City only to the extent provided in the Contract Documents unless otherwise modified by written instrument. 6 The Project Representative shall examine the site at intervals appropriate to the stage of construction, or as otherwise agreed by the Project Representative in writing, to become specifically familiar with the progress and quality of work and to determine in general if work is proceeding in accordance with Contract Documents. On the basis of such on-site examinations as a Project Representative, the Project Representative shall keep the City Manager informed of the progress and quality of work, and shall guard the City against defects and deficiencies in work of the Contractor, or overcharges by the Contractor or any Subcontractor. The Project Representative shall not be responsible for, nor have control or charge of construction means, methods, techniques, sequences or procedures or safety precautions and programs in connection with the Project. The Project Representative shall not have control over, the acts or omissions of the Contractors, Subcontractors, any of their agents or employees, or any other persons performing any work. The Project Representative shall at all times have access to the Project site, wherever it is in preparation or progress. Based on the Project Representative ' s observations at the site, the Project Representative shall determine the amounts owing to the Contractors and shall issue a Project 7 Certificate for Payment in such amounts, as provided in the Contract Documents. The Project Representative shall have authority to reject work which does not conform to the Contract Documents, and whenever, in the Project Representative's reasonable opinion, it is necessary or advisable for the implementation of the intent of the Contract Documents, the Project Representative shall have authority to require special inspection or testing of work in accordance with the provisions of the Contract Documents, whether or not such work be then fabricated, installed or completed. The Project Representative shall receive Contractors ' submittals such as Shop Drawings, Product Data and Samples from the Contractor and shall review and approve or take other appropriate action upon them, but only for conformance with the design concept of the Proj ect and with the information given in the Contract Documents. Such action shall be taken with reasonable promptness so as to cause no delay. The Project Representative's . approval of a specific item shall not indicate approval of an assembly of which the item is a component. The Project Representative shall review and sign or take other appropriate action on Change Orders prepared by the Contractor for the City' s authorization in accordance with the Contract Documents. 8 1 1 The Project Representative shall have authority to order minor changes in work not involving an adjustment in a contract sum or an extension of a contract time and which are not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order issued through the Contractor. The Project Representative shall assist the Contractor in receiving and forwarding to the City for the City Manager's review written warranties and related documents assembled by the Contractors. 4 , Project Representation Beyond Desiqnated Services No provision of allocation of funds exist for additional services in relation to the construction management phase of this contract. Should the need for such services arise, the City shall acquire or perform the service at its discretion and Developer shall cooperate with any person or entity providing such service on behalf of the City. 5 , Estimated Time Schedule Activities Months 1. Architectural Design and Engineering 4 2 ., Government Review and Approvals 1 3 , Acquisition, Review, and Award of Bid 1. 5 6. The Developer shall indemnify and hold harmless the City, its employees, officers, agents, servants, and representatives from any and all claims of any nature whatsoever arising out of or relating to Developers 9 project management services and other professional services provided by Developer pursuant to this agreement. II. COMPENSATION FOR DESIGNATED SERVICES A. Document Preparation and Construction Plan 1. Architectural Design/Planning 2 . Architectural Construction Documents 3 . Structural Plans 4 . Electrical/Mechanical/Plumbing Plans 5 . Civil Engineering Stipulated Sum. . . . . . . . . . . . . . . . . . . . . . . . . $415, 000 This total includes the coordination and production of acceptable plans and specifications of any and all components of the project prepared by the contractor or any of his material suppliers or subcontractors. All fees, charges, and expenses are included in this amount. Compensation for designated services is based on a Project Budget of 4 . 7 million dollars. Any additional improvements in the project requested by the City which result in additional project costs in excess of the original budget of 4 . 7 million dollars requiring architectural or engineering services, shall be billed at a rate of 10% of additional project costs. Likewise, downsizing of the project which results in a lower project budget shall reduce the cost of architectural and engineering proportionately. Stipulated 10 sum shall include 25 complete sets of blue prints. Any additional printing shall be billed at standard reproduction rates. B. Construction Management Services. . . . . . . . . . . . . . $35, 000 . C. Schedule of Fees • DOCUMENT PREPARATION PHASE: 1. Balance to be billed in progress payments monthly in accordance with percentage of completion of the work. The percentages for the monthly progress payment is expected to reflect the projected work program as reflected in Attachment "A" (to be supplied by developer) of this contract. 2 , Monthly invoices shall reflect an amount equal to 24 . 1% of the total invoice to be retained by the City. City shall retain fees from monthly invoice to the maximum amount of $100, 000 - 00. Developer shall receive any interest paid on retainer when deposited in an interest-bearing account which conforms with the City ' s investment policy. Interest payment to the Developer shall originate solely from the placement of retainer in an interest-paying repository and not the City of Baytown. City will release retained fees to the Developer upon start of the construction of the hotel. Developer will forfeit all rights to retained fees if the hotel is not under construction within three years from date of this 11 agreement. Should, after the completion and acceptance of the design phase, the City voluntarily elect to terminate the construction of the marina, the City shall release any and all retainage earned at that point, provided that Developer has not forfeited its rights to refund of retainage under the terms of this agreement and Developer has complied with all of its obligations under this agreement. 3 . Payments during construction phase shall be due monthly. 4 . Final payment for construction phase shall be due upon issuance of certificate of completion by the City Engineer. 5. Payments due Developer and unpaid under this agreement shall bear interest at the rate of 1. 5% per month beginning 30 days following the receipt of the invoice for that payment. D. DEVELOPER' S PERFORMANCE DEPOSIT The City shall withhold a percentage of Developer' s fees --r . equal to $100, 000. In the event the Developer does not start construction on the hotel within three years from date of this agreement, Developer will forfeit retained amount to City. The percentage withheld will be as indicated in schedule of fees. Upon Developer ' s start of construction of hotel, the City shall release any retained fees to the Developer. 12 1 LAND LEASE The City shall provide Developer with a Land Lease on the Bayland Park property for the purpose of constructing and operating a hotel. The term of Lease will be 40 years at a rate of $1. 00 per year and will commence upon acceptance and signing of the Land Lease agreement. Lease will be renegotiated at the end of its term. Lease to provide access to public marina. Lease will automatically terminate three years from start date if Developer has not started construction on hotel. City will provide underground water and sewer utilities of sufficient size to accommodate marina and hotel in accordance with the City Code as determined by the City Building Inspector. Such utility connections and infrastructure provided by the City shall extend to the southern terminus of the proposed bridge and Developer shall be responsible for any further extensions. Extension of additional necessary utility services to the marina shall be paid for out of marina construction costs. Developer shall be responsible for all construction of necessary additional utility extensions to the site of the hotel complex. Iv. MARINA MANAGEMENT Developer and the City agree that both marina management and the hotel management shall use best efforts to co-operate with 13 each other so as to ensure the efficient and profitable operation of both enterprises. v. SPECIAL CONDITIONS A. Tax Abatement Provided that the Developer has complied with all of its obligations under this agreement, then upon the start of hotel construction, the City Manager shall recommend to the City Council of the City of Baytown that a tax abatement shall be granted to the hotel in accordance with the tax abatement guidelines adopted by the City Council of the City of Baytown which are in effect at that time, and the City Manager shall recommend to the City Council that a variance to said guidelines be granted if any variance be needed in order to render such hotel accommodations eligible for tax abatement under said tax abatement guidelines. vie This Agreement shall be construed under and in accordance with the laws of the State of Texas. All obligations of the parties created under this agreement are performable in Harris County, Texas, and the District Courts of Harris County, Texas, shall have jurisdiction to adjudicate all disputes arising under this agreement. Notwithstanding anything to the contrary or apparent contrary contained in this agreement, City and Developer hereby agree that no claims or disputes between City and Developer arising out of or relating to this agreement, to 14 1 { a breach thereof, or to any of the work shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14) , or any applicable State arbitration statute, including but not limited to th'e Texas General Arbitration Act, Texas Revised Civil Statutes Title 10, articles 224 through 249-43 , provided that in the event that City is subjected to an arbitration proceeding notwithstanding this provision, Developer consents to be joined in the arbitration proceeding if Developer ' s presence is required or requested by City for complete relief to be recorded in the arbitration proceeding. VII. In any action which may be brought to enforce the provisions of this agreement, the prevailing party in that action will be entitled to recover from the other reasonable attorneys fees. VIII. Developers rights under this agreement are not assignable. Any attempted assignment shall be void and shall render this agreement voidable at the election of the City. • IX. This agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors and assigns of the parties to the agreement. is X. This agreement and the Lease agreement, referred to herein, contain the entire agreement between the City and the Developer. Any oral representations or modifications concerning the agreement made before or after its execution shall be of no force and effect, provided, however, that this agreement l may be altered in the future by written agreement of the parties, signed by the party to be bound. XI. In the event that any one or more of the provisions contained in this agreement is for any reason held to be invalid, illegal or unenforceable in any respect, that invalidity, illegality or unenforceability will not affect any other provision of the agreement and this agreement will be construed as if it had never contained the invalid, illegal, or unenforceable provision and any other provisions hereof or thereof shall remain in full force and effect to the maximum extent permitted by applicable laws. XII. SAFETY AND HEALTH STANDARDS Developer shall examine contractor for compliance with the Texas occupational Safety Act (Art. 518a, V.C.S. ) and with all safety and health standards promulgated by the Secretary of Labor under Section 107 of the Contract Work Hours and Standards Act, published in 29 CFR part 1926 and adopted by the Secretary of Labor as occupational safety and health standards under 16 the Williams--Steiger occupational Safety and Health Act of 1970, and to any other legislation enacted for the safety and health of the contractor employees. Such safety and health standards shall apply to all subcontractors and their employees as well as to the contractor and his employees. • XIII. CONFLICT OF INTEREST Developer shall exercise reasonable care and diligence to prevent any actions or conditions which could result in a conflict with City' s best interests. This obligation shall apply to the activities of the employees and agents of Developer in their relations with the employees, and their families, of City and of third parties arising from contract and accomplishing services hereunder. Both parties efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing or offering substantial gifts, extravagant entertainment, payments, loans or other considerations for the purpose of influencing individuals to act contrary to City' s best interest. XIVO AUDIT RIGHTS BY CITY A. City ' s Rights City' s duly authorized representatives shall have access at all reasonable times to all contractor' s and subcontractor' s personnel, job descriptions, employment and qualification records, books, records, correspondence, instructions, 17 plans, drawings, receipts, vouchers, data stored in computers and memoranda of every description pertaining to work under this agreement for the purpose of auditing and verifying costs of work or for any other reasonable purpose. City's representatives shall have the right to reproduce other the aforesaid documents. B. Developer's Responsibility Developer shall preserve, and shall cause its contractors and subcontractors to preserve all aforesaid documents for a period of four years after completion and acceptance or termination of work. XV. WARRANTY Notwithstanding anything to the contrary or apparent contrary contained elsewhere in the agreement documents, all warranties and guaranties of Developer contained in the agreement documents shall be in addition to, and not in lieu of, City's claims and rights at law which shall continue for the applicable statute of limitations period with respect to any default, defective, non- complying or incomplete work. XVI. FUGITIVE EMISSIONS Fugitive emissions, such as road dust and dust generated by construction activities, must be controlled by wetting procedures and kept to a minimum. 18 XVII. HISTORICAL AND ENVIRONMENTAL COMPLIANCE Developer agrees to comply with and require all contractors and subcontractors to comply with applicable laws, regulations, orders and guidance administered by the U.S. Environmental Protection Agency, the Texas Department of Natural Resources Environmental Protection Division and any local agency(s) with jurisdiction. The matters covered by this paragraph include, without limitation, discharges of waste to air, water or land, solid waste disposal, and management of "hazardous substances" . Developer shall comply with all Laws of the State of Texas concerning the preservation of Historical sites. XVIII. COMPLIANCE WITH OWNER DIRECTIONS Developer agrees that when the Developer or its employees, agents or subcontractors are on City's site, building or grounds at that site, the- Developer, its employees, agents or subcontractors shall comply with City' s directions, rules and regulations for Developer ' s or City' s employees on the site. Developer agrees to be responsible for any wastes generated through the Developer ' s work on City' s site. Developer shall remove wastes from City' s site and shall provide for disposal which is proper and in compliance with applicable federal, state and local laws and regulations. 19 XIX• INTENT OF PARTIES It is the intent of the parties to this agreement that there is no relationship of partnership nor joint venture created by this agreement, that there is no fiduciary relationship created and that any relationship between the parties is entirely contractual in nature, as manifested by this agreement and the Lease agreement, referred to herein. AUTHORITY. The officers executing this agreement on behalf of the parties hereby confirm that such officers have full authority to execute this agreement and to bind the party he/she represents. IN WITNESS WHEREOF, the undersigned have executed this agreement as of day and year first above written. MILLER BROWN DEVELOPMENT COMPANY, INC. BY: 41 Ai4y imo by 0. Miller, Chief Executive Officer THE CITY OF BAYTOWN L B Y: C t,I- -C. ' Bobb J redille, Ma r 20 TZ �iI�II�I��s��uo�/TBbeT �au�o��� ��T� ' • 'za.XiwteE OToB4xp--., 4L :Nuo3 os sy aanoxddV xaat0 A4z0 ' Tri; 'd t�aaT'i ATTACHMENT A----PROJECTED WORK PROGRAM AND PAYMENT SCHEDULE PAYMENTS DUE THE DEVELOPER SHALL BE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE: Breakdown of fees: (Stipulated sum $415,000.00) Master planning/Preliminary design . . . . . . . . . . . . . . . . . . . 209c Final design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10% Construction documents: Architectural . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 96 Structural/Civil engineering (25%) . . . . . . . . . . . . . . . 25% Mechanical/Plumbing/Electrical . . . . . . . . . . . . . . . . . 10% Construction administration . . . . . . . . . . . . . . . . . . . . . . . . .5% Project Management ($35,000.00) Month no. 1 Master planning (80%) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $669400.00 Final design (25%) 0 0 0 0 0 * a 49 0 0 0 0 0 0 a 0 a 0 0 0 0 * 0 0 a 0 0 0 0 0 0 109375.00 Construction documents: Architectural . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.00 Civil engineering (25%) . . . . . . . . . . . . . . . . . . . . . . . . . . 259937.50 Construction administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.00 Month no. 2 Master planning (20%) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169600.00 Final design (75%) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319125.00 Construction documents: Architectural (30%) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,350.00 Structural/Civil engineering (35%) . . . . . . . . . . . . . . . . . . . . 369312.50 M/P/E (25%) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109375.00 Construction administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.00 Month no. 3 Construction documents: Architectural (40% . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49,800.00 Structural/Civil engineering (25%) . . . . . . . . . . . . . . . . . . . . 257937.50 M/P/E (35%) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,525.00 Construction administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.00 Month no. 4 Construction documents: Architectural (30%) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,350.00 Structural/Civil engineering (15%) . . . . . . . . . . . . . . . . . . . . 15,562.50 M/P/E (40%) 9 * 0 0 a 0 0 * 0 0 0 * 16,600.00 Construction administration . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.00 Month no. 5 thru 11 Construction administration (15%) . . . . . . . . . . . . . . . . . . . . . . . . . 39112.50 Month no. 12 Construction administration (10%) . . . . . . . . . . . . . . . . . . . . . . . . . 2,075.00 The preceding breakdown represents the maximum anticipated monthly billings. Amounts may be decreased if projected percentage of completion goals are not met for reasons beyond our control.