BHPFC Resolution No. 3RESOLUTION NO. 3
A Z�USOUITI&l OF T
HOSPITALITY PUBLIC FACILITIES CORPORATION AUTHORIZING A PRE -
CONSTRUCTION AGREEMENT WITH DPR CONSTRUCTION FOR THE
BAYTOWN HOTEL PROJECT; AND PROVIDING FOR THE EFFECTIVE DATE
TVE-V—EOF.
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN HOSPITALITI
PUBLIC FACILITIES CORPORATION:
Section 1: That the Board of Directors of the Baytown Hospitality Public Facilities
Corporation hereby authorizes a Pre -construction Agreement with DPR Construction for the Baytown
Hotel Project. A copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all
intents and purposes.
Section 2: This resolution shall take effect immediately from and after its passage by the
Board of Directors of the Baytown Hospitality Public Facilities Corporation.
INTRODUCED, READ and PASSED by the affirmative vo o the Board of Directors of the
Baytown Hospitality Public Facilities Corporation, this the 7'h day of ov ber, 2019.
CHRIS PRESLEY, Vice President
.0
\1�,COBFSOI\Legai;Karen,,Files'City Council\PFC'xResolution\20191November 7\Pre-Construction Agreement with DPR Construction.doc
FOR
BAYTOWN HOTEL PROJECT
BAYTOWN, TEXAS
THIS Contract for Design -Build Pre -Construction Services (the "Agreement") made the 31 day of
October, 2019 by and between Baytown Hospitality Public Facilities Corporation ("Owne ') Tnd DPR
Construction, a General Partnership (the "Design/Buildee');
Whereas, the Owner intends to construct a full-service hotel with a minimum of 200 rooms (the
"Hotel" or "Project") as part of a unified development with the City of Baytown (the consisting of (i)
the Hotel, (ii) a City -owned meeting, ballroom, and convention center; and (iii) a City -owned surface
parking lot with approximately 324 public parking spaces together with the adjoining 1.92 acre marina
parking sit of approximately 230 spaces;
Whereas, the Owner and Design/Builder desire to enter into this Agreement so that
Design/Builder can continue facilitating design and cost estimating services for the Hotel.
NOW, THEREFORE, the Owner and the Design/Builder, for the considerations hereinafter
named, agree as follows:
1.2 The Owner and Design/Builder anticipate entering into a separate Design -Build Contract for the
Construction of the Project provided that the Design -Build Pre -Construction Services have been
performed in a professional manner acceptable to the Owner, and the Owner elects to begin
construction of the Project based on the Initial Guaranteed Maximum Price Proposal ("LGMP
Proposal') offered by the Design/Builder.
1.3 Should the Owner accept the FGMP Proposal and authorize a contract for the Design -Build
Construction Phase with the Design/Builder, the construction services will be in accordance with
Design -Build Contract as negotiated by the Owner and Design/Builder.
ARTICLE 2
OBLIGATIONS, SERVICES AND DUTIES OF THE OWNER
2.1 The Owner has previously furnished the Design/Builder oprogram (the "Program') consisting of
the initial description of the Owner's objectives for the Pnojmoi, including budgetary and time
nrbeha, space requirements and relmUonahipm, special equipment and systems and site
requirements. The Program is hereby made part of this Agreement as Exhibit D.
2.2 To the extent the Owner has not previously provided the following to Design/Builder, the Owner
shall provide:
2.2.1 general information describing the physical characteristics of the project site, including
surveys, site evaluations, legal descriptions, existing conditions, subsurface and
environmental studies, reports and investigations; the definition of the wetland
2.2.2 tax exempt certificate, if applicable.
2.3 The Owner isresponsible for the completeness and accuracy of the information and services
required by Section 2.2. Under this AQnmament. Design/Builder and its contractors and
consultants will have no responsibility for the discovery, presence, handling, removal or disposal
of or exposure of persons to hazardous materials or toxic substances in any form.
2.4 During the Design -Build Pre -Construction Services the Owner shall review and timely approve
soheduleo, eodnnoteo. and Construction Documents set forth in Article 3 below. Owner shall be
responsible to obtain approvals from any other third pad9, or tenant for which approval is
required. Owner shall obtain the necessary approvals in e timely manner consistent with the
Design/Builder's schedule for the Design -Build Pre -Construction Services.
ARTICLE 3
OBLIG
The agrees to perform professional design services, subject to the Standard of Care set
forth herein for the above named Project as set forth in this Agreement and in the Design -Builder's Scope
of Services attached hereto as Exhibit A and all other Exhibits attached hereto.
3.1 has provided, and Owner has approved, the Schematic Design Documents and
Design Development Documents for the Project prior to the Effective Date of this Agreement.
Design/Builder shall employ licensed anhdeots, enginesre, and necessary oonmu|bonta.
acceptable tothe Owner, for design ofthe Construction Documents.
3.1.1 Standard ofCare. Any architects, engineers, ovother design professionals employed by
Design/Builder shall perform all professional design services required by the Agreement
consistent with the professional skill and care ordinarily provided by reasonably
competent annhibects, enginaere, or other design pmf*mmiono|o practicing in the same or
similar locality under the same o,similar circumstances.
3.2 All services required pursuant to Section 2 above or this Section 3shall be completed as
expeditiously as is consistent with professional skill and care and the orderly progress of the work.
4 schedule of performance shall be agreed to by the Owner and Design/Builder for all Design -
Build Pre -Construction Services outlined in this Agreement that will coordinate with schedules to
be agreed upon in the Design -Build Contract. Time limits established by this achedu|o, including
the need for submissions to authorities having jurisdiction over the Project and third party
epprovo|o, shall not except for reasonable omuoe, be exceeded by the Design/Builder or the
Owner.
3.3 shall attend all Project oonfexnncee, record nobea, prepare and distribute minutes
and conference memoranda.
3.4 Design/Builder shall cause the preparation of the design documents along with associated cost
estimates and solicitation of subcontractor and supplier bids and pricing to enable Design/Builder
to provide Owner with an IGMP Proposal.
3.5.1 Not used.
3.5.3 DESIGN -BUILD PRE -CONSTRUCTION SERVICES SCHEDULE. The Design/Builder
shall prepare and provide to Owner schedule of the Design -Build Pre -Construction
Services for Owner's written approval. The schedule shall show the activities of the
Owner. Oeaign/Bui|der, arohihects, enQinaera, and other design professionals necessary
to meet the Design -Build Pre -Construction Sen/ices deliverable requirements. The
schedule mheH be updated periodically with the level of detail for each eohadu|o update
reflecting the information then available. If an update indicates that the end date of
previously approved schedule will not be met, the Design/Builder shall recommend
corrective action to the Owner.
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3.5.4 DESIGN DEVELOPMENT DOCUMENTS. The Design/Builder has prepared and
delivered Schematic Design Documents to Owner which the Owner has approved.
3.5.5 CONSTRUCTION DOCUMENTS. As part of the Design -Build Pre -Construction Services,
the Design/Builder shall submit for Owner's written approval Construction Documents
based on the approved Design Development Documents for the Project. These
Documents shall set forth in detail the requirements for construction of the Project, 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 Documents. The IGMP Proposal shall be established based on
these documents.
3.5.7.1 The Construction Documents shall be delivered to Owner in accordance with the
Design -Build Pre -Construction Services schedule approved by Owner. It is
anticipated that under this Agreement, Design -Builder will furnish Construction
Documents to 85 % completion.
3.5.7.2 If after five (5) weeks from furnishinq 85% Construction Documents,
Design/Builder is caused extra drafting or other expenses due to changes to the
Construction Documents ordered in writing by the Owner which are not the fault
of the Design/Builder and which are not required to bring an issued Construction
Document in conformance with the scope of the Program, then the
Design/Builder will be paid an equitable fee for such extra services and
expenses. Additional payment to the Design/Builder for accomplishing the
changes will be for an agreed fee, approved in writing by the Owner prior to
performance of the additional services. Compensation will be based on hourly
rates in accordance with the attached Hourly Rate Schedule in Exhibit C, limited
by the maximum specified in the change order. The additional fee shall be
consistent with the applicable payment terms in Article 4 of this Agreement. If the
Design/Builder is caused extra drafting or other expenses due to its own errors
and/or omissions in the design or in order to bring an issued Construction
Document in conformance with the scope of the Program, such corrections will
be made without additional fee.
3.5.6 PROPOSED BUDGET COST ESTIMATE. When Construction Documents have been
prepared and are in a condition that (with the agreement of Owner and Design/Builder)
will enable the Design/Builder to accurately price the drawings and specifications,
Design/Builder shall solicit subcontractor and supplier bids and pricing in order to develop
a proposed budget cost estimate for the Project. During the Construction Documents
Phase, the cost estimate shall be updated periodically with the level of detail reflecting
the information then available. If the proposed budget cost estimate or any update
exceeds the Hotel budget, the Design/Builder shall make written recommendations to the
Owner.
3.5.6.1 If after Three (3) weeks from submission of the IGMP Pror)osal , Design/Builder
is requested by Owner in writing to further revise the proposed budget cost
estimate for the Project, the
r- •- will be paid an equitable fee for such
extra services and expenses; provided, however that following Owner's
acceptance of the Design/Builder's IGMP Proposal, Design/Builder shall prepare
a Final Guaranteed Maximum Price Proposal (the "FGMP Proposal") and
Design/Builder's work in preparing such FGMP Proposal shall not be considered
a request by Owner to further revise the proposed budget cost estimate for the
Project or a request for extra services. Additional payment to the Design/Builder
M
Exhibit C, limited by the maximum specified in the change order. The additional
fee shall be consistent with the applicable payment terms in Article 4 of this
3.6.1 It is mutually agreed that all design and cost estimating materials prepared by
Deaign/BuiNerand all onchiteots, engineena, oonou|tanta, and subcontractors ofany tier
under this Agreement in connectionwith the Project (the "Instruments
become the property of Owner upon payment for the Instruments of Service by Owner.
Immediately upon payment for the Instruments of Service by Owner, Owner will be
entitled to, and Design/Builder will deliver to Owner, all Instruments of Service, including,
but not limited to, data, drawings, specifications, reports, estimates, summaries and other
such materials as may have been prepared or accumulated to date by DomiJn/Bui|der,
and any architects, enginemna, oonsultmnta, and subcontractors ofany tier in performing
under this Agnmoment, which is not Dooign/Bui|dees, archibacto', enQinomro', consultants'
or subcontractors' privileged information, as defined by |am/. or Deaign/Bui|der'a,
arnhihectm', enginaeny', consultants' or subcontractors' personnel information or
proprietary information. It is expressly understood and agreed that if this Agreement is
terminated, the Design/Builder must bender all such inmtmmanba of Service to Owner
within ten (iO)days ofreceipt ofpayment.
3.6.2 Additionally, it is agreed that Owner and Design/Builder intend this to bencontract 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 egnaem that this work pnoduot, ino|uding, but not
limited to the Instruments of Service, (and all rights in this Agreement, including, without
limitations, Intellectual Property) (hereinafter "Work ') belongs bmand will bethe
sole and exclusive property ofOwner. 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 from liability and shall indemnify, defend and hold harmless the
Oea|gn/Bui|der, onchibucte, enginmenn, consultants and subcontnaotona, from any claims or
dernaQeo meou|Uog from any material alteration of the VVodx Product by Owner in
connection with the Project which is not approved by Design/Builder and/or the use of
such Work Product in the nonatruotion, repair or alteration of something other than the
Project.
3.7 Any services provided by the Design/Builder concerning the Project prior to the full execution and
delivery of this Agreement shall be governed by the terms and conditions of this Agreement. The
parties hereby me@y, oonfinn, and approve said services as procured and provided pursuant to
this Agreement.
ARTICLE 4
4.1 Including payments already made by Owner to Design/Builder, Owner agrees to pay
Design/Builder, when this agreement is fully completed, a negotiated Design Phase Fee not to
exceed TWO MILLION TWO HUNDRED FIFTY NINE THOUSAND FIVE HUNDRED TWENTY
TWO AND NO/100 Dollars ($2,259,522.00) to cover all costs and fees for Design Phase
Services, of which amount (1) $ 2,165,860.00 - has already been paid to date by Owner to
Design/Builder; and (2) $ 0.00 ' is not included within the scope of this Design -Build Pre -
Construction Services Agreement because it relates to the preparation of the FGMP Proposal.
For the Services under this Design -Build Pre -Construction Services Agreement, Owner shall pay
to Design/Builder for the Design -Build Pre -Construction Services a total of $637,622.00 (the
"Pre -Construction Services Compensation").
4.2 The Services Compensation under this Agreement shall bedue and payable as
42.1 will submit to Owner monthly applications for payment for Design -Build
Services such that the Pre -Construction Son/bem Compensation shall
be paid in equal amounts for the duration of time from the commencement of services
hereunder through the date established in this Agreement for completion of the Pre -
Construction Services. Each application for payment shall indicate the design end/or
cost estimating services performed and shall include reasonable back-up documentation
with each application aarequested byOwner.
4.2.2 Undisputed amounts due to the Design/Builder shall be paid within thirty (30) days of
receipt of Design/Builder's application for payment. If Owner disputes all or any portion
of Design/Builder's application for payment, Owner will provide written notice to
Design/Builder of such dispute within fifteen (15) days of receipt of Design/Builder's
application for payment. Design/Builder shall be afforded an opportunity to cure any
4.2.3 Interest for past due payments shall not exceed the maximum amount allowed by Texas
42.4 With each application for payment, and as a condition to such payment by Owner
Design/Builder shall submit an Interim Lien Waiver and Release upon Payment from
Design/Builder and each first-tier design professional providing design services directly to
Design/Builder for the Project during the period covered by the application for payment.
ARTICLE 5
Changes inthe Design -Build Services which are within the general scope of this
Agreement may be accomplished by change order without invalidating this Agreement. Achange order
is a written instrument, issued after execution of this Agreement, signed by the Owner and Design/Builder
obeUng their agreement upon o change and the adjuotment, if any, in Pre -Construction Services
Compensation orthe Design -Build Pre -Construction Services schedule.
ARTICLE
TERMINATION OF AGREEMENT
61.1 Upon fifteen (1�days'written notice to the Owner, the may terminate this
Agreement for any ofthe following reasons:
6.1.1.1 if the Work has been stopped for a thirty (30) day period, which period shall ba.
extended by a maximum of 15 days if the Owner is pursuing relief from such
2. under court order or order of other governmental authorities havi
jurisdiction, unless caused by the Design/Builder; or i
b. as o result of the declaration of m national emergency or other
governmental act during which, through noact orfault ofthe uUder,
materials are not available; or
6.1.1.2 if the Work hnsuspended bythe Owner for sixty (6O)days;
6.1j.4 if the Owner otherwise materially adversely breaches this Agreement; or
6.2 OWNER'S RIGHT TO PERFORM DESIGN/BUILDER'S OBLIGATIONS AND TERMINATION BY
THE OWNER FOR CAUSE.
6.2.1 If the Design/Builder fails to perform any of its obligations under this Agreement, the
Owner may, after seven (7) days'written notice, during which period the Design/Builder
fails to perform such obligation, undertake to perform or commence to perform such
obligation. The Pre -Construction Services Compensation shall be reduced by the cost to
the Owner of performing such obligations.
6�.2 Upon fifteen (i5)days' written notice to theDesign/Builder and theDesigm/Builder's
surety, if any, and provided the Design/Builder does not cure or commence to cure such
condition or non-performance within such fifteen (16) day period, the Owner may
terminate this Agreement for any ofthe following reasons:
6.2.2.1 if the utilizes unlicensed architects, engineers, or other design
professionals;
62�.2 if the does not make proper Payment tothe architects, engineers,
other design prmfeeoione|e, consultants or subcontractors to the same mxtard
proper Payment has been made bythe Owner;
6.2.2.3 if the Design/Builder fails to abide by the orders, regulations, rules, ordinances or
laws ofgovernmental authorities having jurisdiction; or
6.2.2.4 if the Design/Builder otherwise materially breaches this Agreement.
If the Design/Builder fails to cue* or if the Design/Builder has not commenced o
continuing path of cure within the fifteen (15) days written notice by Owner, without
prejudice to any other right or remedy. Owner may take possession of the Project site
and complete the Design -Build Pre -Construction Services utilizing any reasonable
means. In this event. the Dmeign/Bui|derohaU not have a right &ofurther payment until the
Design -Build Pre -Construction Services are completed.
If the costo of finishing the Design -Build Pre -Construction Services exceed the unpaid
balance of the Design -Build Pre -Construction Services Compensation, the Design/Builder
shall pay the difference hothe Owner promptly upon demand from Owner.
6.2.3 If the Design/Builder O|ea a petition under the Bankruptcy Codm, and/ or if an involuntary
petition is filed against the Design/Builder, this Agreement shall terminate if the
Design/Builder orthe DeaiBn/Bui|der'etrustee rejects the Agreement orsuch involuntary
or voluntary petition is not dismissed within GO days of the filing or, if there has been a
default, the Design/Builder is unable to give adequate assurance that the Design/Builder
will perform as required by this Agreement or otherwise is unable to comply with the
requirements for assuming this Agreement under the applicable provisions of the
Bankruptcy Code.
6�.4 In the event the Owner exercises its rights under Sections 8.2] or 6.2.2, upon the
request of the Design/Builder the Owner shall provide a detailed accounting of the cost
6.3 TERMINATION BY OWNER FOR CONVENIENCE. Ifthe Owner terminates this Agreement (i)
other than as set forth in Section 6.2 or (ii) pursuant to Section 6.5. the Owner shall pay the
Design/Builder for all Services performed. The Owner shall assume and become liable for
obligations, commitments and unsettled claims that the Design/Builder has previously undertaken
o, incurred in good faith in connection with the Design -Build Pre -Construction Services or as a
result of the termination of this Agreement. After receipt of the payments provided under this
Article 6, the OemiQn/Bui|derehoU cooperate with the Owner hmaccomplish the legal assignment
of the Design/Builder's rights and benefits to the Owner, including the execution and delivery of
required metmrie|a. Work Product, and Instruments of Service, and assignment of agreements
with architects, engineers, other design professionals, and consultants to Owner.
6'4.1 The Owner may order the in writing to auopmnd, delay or interrupt all or
any part of the Work without cause, for such period of time asthe Owner may determine
to be appropriate for its convenience; howmver, the schedule for Design -Build Pre-
Construction
8�.2 Adjustments caused bysuspension, delay n,interruption omset forth inSection 6.4.1
shall be basis for increases in the Pre -Construction Services Compensation as and when
appropriate pursuant to this Agreement. No adjustment shall be made if the
Design/Builder is solely responsible for the suspension, delay or interruption of the Work,
or if another provision of this Agreement is applied to render an equitable adjustment.
ARTICLE
SUCCESSORS AND ASSIGNMENT
shall not assign its interest in this Agreement without the written consent ofOwner. The
Owner shall be entitled to pledge and assign all of its right title and interest herein to the Bond Trustee
pursuant to the Bond |ndenbmm*, with the axompbmn of certain "Reserved Rights" as defined therein; and
Design/Builder acknowledges and consents tmsuch assignment.
ARTICLE 8
INSURANCE & INDEMNIFICATION
8.1 LIABILITY INSURANCE. The Design/Builder and its team mambors, including all architects,
enginemrs, consultants and aubcontnaobnno, mheU mmcupa and maintain such insurance an will
protect them from claims under the Worker's Compensation Act and from claims for bodily injury,
death, or property damage which may arise from the performance of Design -Build Pre -
Construction Services under this agreement. Minimum insurance coverage ehoU be as follows
and ooset-forth inExhibit B attached hereto.
8.1.1 The Deoign/Builderbmthe extent allowed bylaw, shall name the Owner, Bond Trustee
and Development Manager and their respective offimars, directorm, members, and
ohsneho|denn, as additional insureds on the Oeaign/Bui|doee liability policies in
accordance with Exhibit B.
8.1.2 The Insurance as required by Article 8and Exhibit B shall be written in
accordance with the requirements of Exhibit Battached hereto and incorporated herein
by reference.
0i13 insurance policies will abnbs that the insurance carrier will endeavor to
provide written notice of cancellation or non -renewal to the Owner. at least thirty (30)
days in advance of such cancellation or non -renewal. Certificates of insurance showing
required coverage to be in force shall be filed with the Owner prior to commencement of
the Design -Build Pre -Construction Services. If there are any subsequent material
N
8.3.3 To the extent Owner incurs attorneys' fees and costs in defense of any claim assertel
against the Owner or any Indemnitee that arises out of or results from the acts of
omissions described in Sections 8.3.1 or 8.3.2 above, Design/Builder shall reimburse
Owner its reasonable attorneys' fees in proportion to the Design/Builder's liability, or the
liability of its employees or consultants, found in a final adjudication of liability.
8.3.4 The indemnification obligation assumed under this Article 8 shall not be limited by a
limitation on amount or type of damages, compensation, or benefits payable by or for the
Design/Builder or any other employer under workers' compensation acts, disability
benefits acts or other similar employee benefits acts.
8.3.5 It is agreed with respect to any legal limitations now or hereafter in effect and affecting
the validity or enforceability of the indemnification obligations under this Section 8.3 or
the Additional Insured requirements set forth in this Agreement, such legal limitations are
made a part of the contractual obligations and shall operate to amend the obligations to
the minimum extent necessary to bring the provision into conformity with the
requirements of such limitations, and as so modified, the obligations shall continue in full
force and effect. Any endorsement to Design/Builder's general liability policy prohibiting
or limiting the coverages required herein shall be modified such that the policy will
respond to the obligations of the Design/Builder as set forth in this Section 8.3 to the full
extent allowed under applicable law.
8.3.6 The obligations contained in this Section 8.3 shall survive the expiration, completion,
abandonment, and/or termination of the Agreement and final completion of the Work and
any other services to be provided pursuant to this Agreement to the extent and for the
time periods allowed under applicable law.
9.1 INITIAL DISPUTE RESOLUTION. Ifadispute arises out ofmrelates to this Agreement mits
breech, the parties shall endeavor to settle the dispute first through direct discussions. If the
dispute cannot be settled through direct dimnuaeione, the parties shall endeavor to settle the
dispute by mediation before meoounmm to arbitration. The location of the medimUon, if any, mho|| be
in Harris County, Texas unless the parties mutually agree otherwise. Once one party makes a
written request for mediation with the other contracting party, the parties agree to endeavor to
conclude such mediation within sixty (60) days of the filing of the request.
9.2 WORK CONTINUANCE AND PAYMENT. Unless otherwise agreed inwriting the Design/Builder
shall continue the Work and maintain the approved schedules during any mediation proceedings.
If the Design/Builder continues to perform, the Owner ohe|| continue to make payments in
accordance with this Agreement.
9.3 MULTIPARTY PROCEEDING. The parties agree that all parties necessary to resolve oclaim
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.
9.4 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 such attorneys'
fees to the prevailing party under this Agreement.
Article 10
MISCELLANEOUS PROVISIONS
10.1 TEXAS LAW TO APPLY. This Agreement shall be construed under and in accordance with the
laws of 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
Owner's behalf in respect of any claim orlegal proceeding brought against Owner under this
Agreement; (vi) approve n Change Order; or vii) perform any act on Owner's behalf that is
expressly prohibited under any development agreement.
10.10 Waiver of Consequential Damages. Design/Builder and Owner w/oiwa all claims against each
other for indireot, apecio|, punitivo, exemplary and/ orconsequential damages arising out of or
relating to this Agnemment, except theme damages or losses incurred by Owner if and to the
extent covered and paid by the Professional L|ebi|ib/, Commercial General Liability or Excess
Liability Policies required to be carried by Design/Builder for the Pnojeut, with the express
understanding that nothing contained in this section shall be deemed to preclude an award of
liquidated damages, when and ifapplicable. This waiver includes damages incurred byany parry
for rental expenses, for losses of use, income, profit, financing, business and reputation, and loss
of management or employee productivity or of the man/|meo of such persons. This waiver is
applicable, without |imibedon, to all consequential damages due to any party's termination in
accordance with Section G.O..
10.11 Limitation of Liability. To the fullest extent permitted by |em/. the Owner agrees to limit
Design/Builder's liability due to octn, errors or omissions in the performance of Work under this
Design -Build Pre -Construction Gem|oeo Agreement in tort of contract such that the total
oggnagobo liability ofDesign/Builder shall not exceed the available limits of insurance proceeds
under Design/Builder's insurance provided under this Design -Build Pre -Construction Services
Agreement except for claims or causes of action relating to intentional acts or gross negligence of
Design/Builder. This Limitation of Liability shall not be incorporated into on further Design -Build
Agreement which may beentered into bythe Parties atolater date.
III
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above
written.
BAYTOWN HOSPITALITY PUBLIC FACILITIES
COB94?kkA,.T.&Q%J
A
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i
By FDocuSigned by
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Title: BUSiness unit Leader
The Texas Board of Architectural Examiners, PO Box 12337, Austin, Texas 7711-2337 or 333 Guadalupe, Suite 2-350, Austin,
Texas 78701-3942, telephone (512) 305-9000, has jurisdiction over individuals licensed under the Architects' Registration Law,
Texas Civil Statutes, Article 249a.
EXHIBIT A
1) Design/Builder shall make the drawing modifications necessary to change Hotel Operator
Brand Standards. Upon direction from the Owner to proceed with any given modification, any
additional revisions to the directed modification will constitute additional work outside of the scop,z;
of this current Design -Build Pre -Construction Agreement.
2) Design/Builder will produce and submit to the owner an IGMP based on the 85% construction
documents. This IGMP will include (a) a list of all drawings and specifications used in preparation
of the IGMP Proposal; (b) a list of proposed allowances by item and a statement of their basis; (c)
a list of all associated qualifications and assumptions made by the Design/Builder, (d) a schedule
of unit prices; (e) a schedule of alternate prices; (f) a construction milestone schedule, and (g) a
written list of no more than 50 value engineering options.
3) Design/Builder will provide design, coordination, and construction of a 2 guest room off-site
mockup. This mockup will consist of one double Queen guestroom and one King guestroom. The
off-site mock-up will include furnishing and installing two prefabricated restroom pods
manufactured by SurePods.'
4) Design/Builder will cause Digital Building Components to coordinate with the design team and
provide engineering for their system.
5) Design/Builder's submission of an IGMP is contingent upon the Owner providing the complete
version of the Hotel Operator brand standards upon which the Project will be based, in a timely
manner.
IN
EXHIBIT B
INSURANCE REQUIREMENTS
INSURANCE COVERAGES REQUIRED UNDER THE DESIGN -BUILD PRE-CONSTRUCTIO
AGREEMENT:
1. Workers Compensation/ Employers ' Liability
Workers' Compensation Insurance with statutory limits as required by the Labor Code of the State
Texas and Emolo,-,ers Liabilitn, Insurance with limits oURI-0"00 9,er each accide
policy limit, and $ 1,000,000 occupation disease per employee. Workers Compensation coverage sh
be based on proper reporting of classification codes and payroll amounts and filing of any covera
agreement which meet the statutory requirement of the Texas Labor Code and shall apply to
employees of the Design/Builder and any Subcontractor(s) and Sub -subcontractors Design/Builder sh
cause all insurers providing workers compensation insurance to waive all rights of subrogation again
Owner and Indemnitees. provided such waiver shall be limited to claims arising under the worke
compensation policy only.
2. Commercial General Liability
xz'?
W
property damage. Aggregate policy minimum of $4,000,000 will include coverage for, but is not limited t
Premises -Operations, Broad Form Contractual Liability, Broad Form Property Damage, Products an
Completed Operations, Personal Injury, Use of Contractors and Subcontractors, and Explosion Collaps
and Underground (XCU) coverage. A general aggregate loss limit per project endorsement will also b
required. Coverage under this policy shall be on an occurrence" basis. Products and Completrt
Operations coverage shall be maintained for ten year after the date of Substantial Completion.
3. Commercial Auto Liability
Automobile Liability Insurance with a coverage limits of $2,000,000 Combined Single Limit. Coverag
shall include all owned, hired, and non -owned vehicles used in performance of the proposed contra
The combined coverage limits of this insurance shall include bodily injury (including death)
4 Pollution Liability
Design/Builder shall maintain Pollution Liability covering the Design/Builder's liability for bodily inju
property damage and environmental damage resulting from pollution and related cleanup costs incurre
arisinout of the work or services to be -,rfme�t undAr
Er tebr
'aaY"WL WtIINJAII
both work performed on site, as well as during the transport of any hazardous materials. Limits
$2,000,000 shall be provided.
5. Professional Liability
The Architect and Design/Builder shall each be responsible to obtain professional liability insurance
claims arising from the negligent performance of professional services under this Agreement and th
design agreement between Architect and Design/Builder. Policies shall be written for not less tha
$5,000,000 per claim and $5,000,000 in the aggregate with a deductible or self-insured retention not t
exceed $500,000.00 without Owner's approval. This coverage shall provide full prior acts coverage or
retroactive date not later than the date the services are first performed by or for Design/Builder
connection with the Pro iect. This
barred by applicable statutes of limitation or repose.
The Owner and all Indemnitees shall be Provided additional insured status on Jhe
.• as
Design/Builder.
i:a �s.• r r r• raa .1: ,.
IN
YA I OB-NUMIR
Multistory, full-service hotel with a minimum of 200 rooms