HomeMy WebLinkAboutResolution - 2007-R0437 - Agreement - Turner Lee Lewis & Garfield Traub Development LLC - Overton Park CC - 09/13/2007Resolution No. 2007-RO437
September 13, 2007
Item No. 6.10
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Design Build Agreement
with Turner Lee Lewis and Garfield Traub Development, L.L.C. for construction of the
Conference Center in Overton Park. Said agreement is attached hereto and incorporated
in this Resolution as if fully set forth herein and shall be included in the minutes of the
Council.
Passed by the City Council this 13th day of September 2007.
DAVID A. MILLER, MAYOR
ATTEST:
L g- '- --
Rebe ca Garza, City Secret
APPR VED AS TO CONTENT:
Rob A son, City Manager
Development Services
APPROVED AS TO FORM:
Linda L. Chamales, Senior Attorney
Office Practice Section
Lc: CityAtt/Linda/Res-Conference Center DesignBuild
September 5, 2007
Resolution No. 2007—RO437
DESIGN BUILD
AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER, DEVELOPMENT MANAGER AND
DESIGN/BUILDER
(Where the Basis of Payment is the Cost of the Work Plus a Fee,
with a Guaranteed Maximum Price Option)
TABLE OF ARTICLES
1. DEFINITIONS
2. GENERAL PROVISIONS
3. DESIGN/BUILDER'S RESPONSIBILITIES
4. OWNER/DEVELOPMENT MANAGER'S RESPONSIBILITIES
5. SUBCONTRACTS
6. CONTRACT TIME
7. COMPENSATION
8. COST OF THE WORK
9. CHANGES IN THE WORK
10. PAYMENT FOR CONSTRUCTION PHASE SERVICES
11. INDEMNITY, INSURANCE AND WAIVER OF SUBROGATION
12. TERMINATION OF THE AGREEMENT AND DEVELOPMENT MANAGER'S
RIGHT TO PERFORM DESIGN/BUILDER'S RESPONSIBILITIES
13. DISPUTE RESOLUTION
14. MISCELLANEOUS PROVISIONS
15. EXISTING CONTRACT DOCUMENTS
AMENDMENT NO. 1
This Agreement has important legal and insurance consequences. Consultation with an attorney and
insurance consultant is encouraged with respect to its completion or modification.
DESIGN BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER DEVELOPMENT MANAGER AND
DESIGN/BUILDER
(Where the Basis of Payment is the Cost of the Work plus a Fee, with a Guaranteed Maximum Price Option)
AGREEMENT
This Agreement is made as of the 12th day of December, 2006, by and among the
"DEVELOPMENT MANAGER"
Garfield Traub Development LLC
Two Galleria Tower
13455 Noel Road, Suite 2150
Dallas, TX 75240
and the
" DESIGN/BUILDER" Turner Lee Lewis
2001 N. Lamar
Suite 100
Dallas, TX 75202
and the
"OWNER" -
City of Lubbock, Texas
P. O. Box 2000
Lubbock, TX 79457
for services in connection with the following
" PROJECT"
Design and Construction of an upscale conference/civic center (the " Conference Center" ) to be constructed
adjacent to a separately -owned upscale, multi -story 304± room hotel (the " Hotel") located within Tract 7,
Overton Park, an Addition to the City of Lubbock, Texas.
ARTICLE 1
DEFINITIONS
1.1 " Applicable Laws" means all laws, statutes,
ordinances, building codes, regulations, rules, orders and
resolutions of all national, administrative, state, local,
municipal, and other governing bodies relating to the
Project or to the performance of the Services or the Work.
1.2 "Architect/Engineer" means DLR Group and any
successor architect firm that Design/Builder may retain in
connection with the Project.
1.3 "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 and completion of the Project, or any
combination thereof.
1.4 "Construction Phase" means the phase of the
Project described in Section 3.3.1.
1.5 "Construction Phase Services" means Services
rendered during the Construction Phase of the Project.
1.6 ""Contract Documents" means the documents
described in Section 2.4.1.
1.7 " Design Phase" means the phase of the Project
commencing upon the Effective Date of this Agreement
and ending upon completion by the Architect/Engineer of
the Constructon Documents for the Project. The Design
Phase and the Preconstruction Phase shall run
concurrently.
1.8 "Design Phase Services' means all design services
required during the Design Phase of the Project.
1.9 "Final Completion" means the completion of all
Work required by, and in strict compliance with, the
Contract Documents, including start-up, testing, obtaining
regulatory approvals from all applicable authorities, and all
preparations necessary to operate and maintain the
Project, and includes a Certificate of Occupancy for 100%
of the conference center. The Certificate of Occupancy is
subject to the same terms as defined in Article 1.18,
regarding disputes and/or other unrelated conditions
regarding occupancy. All punchlist items and closeout
documents identified at Substantial Completion are to be
completed prior to Final Completion.
1.10" GMP" means the Guaranteed Maximum Price for the
Project, as defined and subsequently established in
Amendment No. 1, and shall include the Design/Builder' s
fee as defined in Article 7.3.1.2, the Cost of the Work as
defined in Article 8, and the Design/Builder s Construction
Contingency.
1.11 "Hotel Owner" means 1859 Management Partners,
LP, the owner of the land under the Project.
1.12 "Separate Contractor" means any contractor, but
not including Design/Builder or the Subcontractors, with
whom Owner or Development Manager enters into a direct
contract for the performance of matters not covered by
the GMP.
1.13 "Owner's Representative" means the individual
named by Owner to act on Owner's behalf in the
administration of this Agreement.
1.14 "Development Manager's Representative" means
the individual named by Development Manager to act on
Development Managers behalf in the administration of this
Agreement.
1.15 " Design/Builder' s Representative" means the
individual named by Design/Builder to act on
Design/Builder's behalf in the administration of this
Agreement.
1.16 " Reconstruction Phase" means the preconstruction
phase of the Project contemplated in Section 3.1.
1.17 "Services" means those services, functions, roles,
responsibilities, obligations and duties required of
Design/Builder pursuant to the terms of the Contract
Documents.
1.18 "Subcontracts" means the contracts between
Design/Builder and any Subcontractor.
1.19 " Subcontract Costs" means those sums properly
paid or due and payable by Design/Builder under the terms
of the Subcontracts.
1.20 "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.
1.21 "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 or any Separate
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Contractor can occupy or utilize the Project or such
designated portion thereof for the use for which it is
intended and a temporary certificate of occupancy and any
other permits and orders necessary for occupancy of
100% of the rooms, 100% of the public spaces, and all of
the back of house spaces necessary to operate such rooms
and public spaces, including food service, have been
issued by the proper governmental authority or would have
been issued in the absence of a dispute, unrelated to the
conditions regarding occupancy, between the Owner,
Development Manager or Design/Builder and the proper
governmental authority. Warranties called for by this
Agreement or by the Contract Documents shall commence
on the Actual Substantial Completion Date. The date upon
which Substantial Completion is achieved shall be referred
to herein as the " Actual Substantial Completion Date."
1.22 " Value Engineering" means the detailed analysis of
systems, equipment, materials, services, facilities, and
supplies required by the Contract Documents for the
purpose of achieving the desired and essential functions of
the Program at the lowest Life Cycle Cost consistent with
required and necessary performance, reliability, quality and
safety. Value Engineering is to be performed during the
Preconstruction Phase as a part of the services required to
reach a GMP 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.
1.23 "Work" means any and all labor, supervision,
supplies, fixtures, vehicles, equipment, services, tools,
materials, computers, utilities, items, documents and other
items required by the Contract Documents including
design, to be performed or supplied, including all
construction and permitting required to render the Project,
and every component thereof, operational and usable for
its intended purpose.
1.24 "Construction Contingency" means a sum
established by the Design/Builder (with Development
Manager' s approval) for use at the Design/Builder' s
discretion to cover costs which are properly reimbursable
as a Cost of the Work but are not the basis of a Change
Order, including errors, omissions, and inconsistencies, all
as further provided in Paragraph 3.2.3.
1.25 "Operator" means a Separate Contractor who enters
into a contract with the Owner or Development Manger to
operate the Project.
1.26 Intentionally Omitted.
1.27 " Force Majeure" means Acts of Nature (including
fire, flood, earthquake, storm, hurricane, Extreme Weather,
or other natural disaster), civil war, terrorism, labor strikes
or lockouts, unusual consequential delay in deliveries,
unavoidable casualties or other material adverse events
beyond the Design/Builder's control, which have an actual,
significant negative effect on the Work.
1.28 " Program" means an initial description of the Work
proposed by the Development Manager, and accepted by
the Owner as generally set forth in the Request for
Qualifications issued by Owner pursuant to Section 4.1 of
the Master Development Agreement, dated February 24,
2006, among Owner, Development Manager, at al.
1.29 "Notice to Proceed" means the date that the Owner
provides written notice that it has met the terms and
conditions of Article 3.3.1.
1.30 Intentionally Omitted.
1.319"Construction Fund" means the fund established
pursuant to the Loan Documents representing the Project
construction loan„ for the sole use of funding the
Design/Builder' s GMP, including the Project Contingency
as defined in Article 1.29, an allowance for changes in the
Work.
1.32 " Project Contingency" means an amount or
amounts on account of contingencies over and above the
Design/Builder' s GMP, in the amount budgeted as set
forth in the Project Budget.
1.33 "Owner" means the City of Lubbock, State of
Texas.
1.34 "Cost of the Work" means all costs necessarily
incurred in the proper performance of the Project, including
without limitation, all costs set forth in Article 8, 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.
1.35 "Master Development Agreement" means that
certain development management agreement between
Owner and Development Manager.
1.36 "FFBE' means furniture, fixture and equipment
purchased to be used in the Conference Center.
1.37 Intentionally Omitted.
1.38 " Performance and Payment Bond" means,
collectively, a standard AIA Design/Builder' s Payment
Bond and a Performance Bond or other form approved by
the Owner and Development Manager for the full value of
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the Design Build Agreement, including Change Orders,
naming Owner as beneficiary.
1.39 "Related Agreements" means the Master
Development Agreement, the Ground Lease, the City
Facilities Lease and any and all other agreements,
documents or instruments entered into by Development
Manager or Owner in connection with the Project.
1.40 "Site" means that certain real property in Tract 7,
Overton Park, an Addition to the City of Lubbock, Texas,
upon which the Project shall be located.
1.41 "Warranties" means warranties obtained from the
Design/Builder, Subcontractors, and all Separate
Contractors pursuant this Agreement covering the work
performed or materials furnished to the Project or any
portion thereof by the Design/Builder.
1.42 " Revised Substantial Completion Date" means the
new date established when the Substantial Completion
Date is extended for any and/or all delays allowable under
the terms of this Agreement.
1.43 " Extreme Weather" means those weather delays
that exceed those normally anticipated in the City of
Lubbock Metropolitan Area as measured against the ten
year statistical data as published by the National Oceanic
and Atmospheric Administration (NOAA). 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.
1,44 '' Development Manager" means Garfield Traub
Development LLC.
1.45 " Operator" means 1859 Historic Hotels, Ltd.
ARTICLE 2
GENERAL PROVISIONS
2.1 TEAM RELATIONSHIP The Development Manager
and the Design/Builder agree to proceed with the Project
on the basis of trust, good faith and fair dealing, and shall
take all actions reasonably necessary to perform this
Agreement in an economical and timely manner, including
consideration of design modifications and alternative
materials or equipment that will permit the Work to be
constructed within the Guaranteed Maximum Price (GMP)
and by the date of Substantial Completion. The
Design/Builder has caused the Architect/Engineer to design
the Project in accordance with the GMP. However, the
Design/Builder may take reasonable actions necessary to
maintain the GMP including minor changes to the drawings
or specifications for a particular material, device, system
after the GMP is accepted, provided Design/Builder
promptly notifies Development Manager and Owner in
writing of any such actions. The Design/Builder may also
utilize value engineering, subject to the consent of the
Development Manager and Owner, and alternative systems
analysis so long as the original intent of the systems or
components within the Project are maintained. The
Design/Builder agrees to procure, or cause to be procured,
the architectural and engineering services set forth below,
and to furnish construction and administration of the
Work.
2.2 ARCHITECTIENGINEER Architectural and
engineering services shall be procured from licensed,
independent design professionals retained by the
Design/Builder. The person or entity providing
architectural and engineering services shall be referred to
as the Architect/Engineer. The Architect/Engineer 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/Engineer. The Architect/Engineer may not be
changed by the Design/Builder without prior written
consent of the Owner and Development Manager.
2.3 EXTENT OF AGREEMENT This Agreement and the
Contract Documents are solely for the benefit of the
parties, represents the entire and integrated agreement
between the parties, and supersedes all prior negotiations,
representations or agreements, either written or oral,
except as provided in Article 15.
2.4 ADDITIONAL DEFINITIONS
1 The Contract Documents consist of:
a. Change Orders and written amendments to
this Agreement signed by the Development
Manager, Owner, and Design/Builder, including
Amendment No. 1 incorporating the
Design/Builder' s GMP.
b. this Agreement except for the existing
Contract Documents set forth in item a below;
C. the most current Contract Documents
approved by the Development Manager and
Owner pursuant to Subparagraphs 3.1.6;
d. the information provided by the Hotel Owner
pursuant to Clause 4.1.2.1;
e. the Contract Documents in existence at the
time of execution of this Agreement which are set
forth in Article 15;
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f. the Program provided pursuant to
Subparagraph 4.1.1.
In case of any inconsistency, conflict or ambiguity among
the Contract Documents, the Contract Documents shall
govern in the order in which they are listed above.
.2 The Work is the Preconstruction Phase Services
procured in accordance with Paragraph 3.1, the
GMP Proposal provided in accordance with
Paragraph 3.2, the Construction Phase Services
provided in accordance with Paragraph 3.3,
Additional Services that may be provided in
accordance with Paragraph 3.8, and other
services which are necessary to complete the
Project in accordance with and reasonably
inferable from the Contract Documents
.3 The term Day shall mean calendar day.
.4 A Subcontractor is a person or entity who has an
agreement with Design/Builder to perform any
portion of the Work, as defined in Article 1.17.
The term Subcontractor does not include the
Architect/Engineer or any Separate Contractor
employed by the Development Manager or Owner.
.5 A Sub -subcontractor is a person or entity who has
an agreement with a Subcontractor to perform
any portion of the Subcontractor' s work.
.6 The Program is an initial description of the
Development Manager's objectives, including
budgetary and time criteria, space requirements
and relationships, flexibility and expandability
requirements, special equipment and systems, and
site requirements, as defined in Article 1.25.
ARTICLE 3
DESIGN/BUILDER' S RESPONSIBILITIES
The Design/Builder shall be responsible for procuring the
design and for the construction of the Work consistent
with the Contract Documents. The Design/Builder shall
exercise reasonable skill and judgment in the performance
of its services, but does not warrant or guarantee
schedules and estimates other than those that are part of
the GMP proposal. The Design/Builder' s representative is
David Welber.
3.1 PRECONSTRUCTION PHASE SERVICES
3.1.1 PRELIMINARY EVALUATION The Design/Builder has
provided a preliminary evaluation of the Project's
feasibility based on the Program and other relevant
information.
3.1.2 PRELIMINARY SCHEDULE The Design/Builder has
prepared a preliminary schedule of the Work for
Development Manager' s and Owner' s written approval.
The schedule shows the activities of the Development
Manager, Owner, Architect/Engineer 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 The Design/Builder has
prepared for the Owner' s and Development Manager's
written approval a preliminary cost estimate utilizing area,
volume or similar conceptual estimating techniques. The
cost estimate has been updated periodically with the level
of detail for each estimate update reflecting the
information then available. If the preliminary cost estimate
or any update exceeds the Owner or Development
Manager' s budget, the Design/Builder shall make written
recommendations to the Owner and Development
Manager.
3.1.4 SCHEMATIC DESIGN DOCUMENTS The
Design/Builder has submitted, for the Development
Manager's and Owner's written approval Schematic
Design Documents, based on the Program and other
relevant information. Schematic Design Documents
include drawings, outline specifications and other
conceptional documents illustrating the Project's basic
elements, scale, and their relationship to the site.
3.1.5 DESIGN DEVELOPMENT DOCUMENTS The
Design/Builder has submitted for the Development
Managers and Owner's written approval Design
Development Documents based on the approved
Schematic Design Documents. The Design Development
Documents further define the Project including drawings
and outline specifications fixing and describing the Project
size and character, and other appropriate elements
incorporating the structural, architectural, mechanical and
electrical systems.
3.1.6 CONSTRUCTION DOCUMENTS/GMP DOCUMENTS
The Design/Builder has submitted for the Development
Manager's and Owner's written approval Construction
Documents and/or GMP Documents based on the
approved Design Development Documents prepared by the
Architect/Engineer . These Documents set forth in detail
the requirements for construction of the Work, and shall
consist of drawings and specifications based upon codes,
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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. The
GMP shall be established based on the Construction
Documents.
3.1.7 OWNERSHIP OF DOCUMENTS All Construction
Documents shall remain the property of the Owner or
Architect/Engineer and are not to be used by the
Design/Builder except as required for the construction of
the Project and completion of the Work. Under any
circumstance, these documents cannot be used on any
other Project unless authorized by the Architect/Engineer
and Owner. The Development Manager shall indemnify
the Design/Builder, the Owner, and the Architect/Engineer
for any and all actions brought due to Development
Manager' s use of the Construction Documents in violation
of this Article 3.1.7. The Development Manager shall
indemnify the Design/Builder for any and all actions
brought due to the Owner s use of the Construction
Documents in violation of this Article 3.1.7.
3.2 GUARANTEED MAXIMUM PRICE (GMP)
3.2.1 When the drawings and specifications are
sufficiently complete, the Design/Builder shall propose a
GMP, 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, and the Construction Contingency
as defined in Article 3.2.3. The GMP is subject to
modification as provided in Article 9.
3.2.2 Intentionally Omitted.
3.2.3 The estimated Cost of the Work shall include the
Design/Builder' s Construction Contingency of two percent
(2%) of the Cost of the Work established by the
Design/Builder for use at the Design/Builder' s discretion to
cover costs which are not the basis for a Change Order.
Within three (3) days following Design/Builder s use of
any funds from the Design/Builder' s Construction
Contingency, Design/Builder shall notify Development
Manager and Owner of the amount and purpose of such
use.
3.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The
Design/Builder shall include with the GMP proposal a
written statement of its basis, which shall include:
1 a list of the drawings and specifications, including
all addenda, which were used in preparation of the
GM P proposal;
.2 a list of allowances and a statement of their basis;
3 a list of the assumptions and clarifications 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 date of Substantial Completion and Final
Completion upon which the proposed GMP is
based, and the Schedule of Work upon which
these dates are based;
.5 schedule of applicable alternate prices;
.6 schedule of applicable unit prices;
.7 statement of Additional Services included, if any;
and
.8 the time limit for acceptance of the GMP proposal.
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 discover
any inconsistencies or inaccuracies in the information
presented, the Development Manager or Owner shall
promptly give written notice to the Design/Builder, who
shall make appropriate adjustments to the GMP, its basis
or both.
3.2.6 Unless the Development Manager and Owner accept
the GMP proposal in writing on or before the date specified
in the proposal for such acceptance and so notifies the
Design/Builder, the GMP proposal shall not be effective
without written acceptance by the Design/Builder.
Design/Builder shall allow ample time for review of the
GMP proposal by Development Manager and Owner.
3.2.7 Upon acceptance by the Development Manager and
Owner of the GMP proposal, the GMP and its basis shall
be set forth in Amendment No. 1. The GMP, the date of
Substantial Completion and Final Completion, shall be
subject to modification by changes in the Work as
provided in Articles 6 and 9.
3.2.8 The GMP shall include in the Cost of the Work those
taxes which are applicable at the time the GMP is
established. If in accordance with the Owner s direction
an exemption is claimed for Texas Sales taxes, to the
extent permitted by law, the Owner agrees to indemnify,
defend and hold the Design/Builder and the Development
Manager harmless for any liability, penalty, interest, fine,
tax assessment, attorneys fees or other expense or cost
incurred by the Design/Builder or Development Manager as
a result of any action taken by them in accordance with
the Owner' s direction, regarding the Texas Sales tax
exemption.
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3.2.9 PAYMENT AND PERFORMANCE BONDS Within
ten (10) days of acceptance of the GMP, the
Design/Builder shall provide separate payment and
performance bonds in form acceptable to Owner and
issued by a surety, or sureties, acceptable to Owner. Each
of the bonds shall include a penal sum in the amount of
one hundred percent (100%) of the GMP (excluding the
amount for design services). The Contract Documents
shall be incorporated by reference into each of the bonds.
3.2.10 SUBGUARD INSURANCE The Design/Builder shall
obtain Subguard Insurance in a penal sum in the amount of
one hundred percent (100%) of the direct work volume.
The cost of the Subguard Insurance is included in the GMP
at the fixed rate of $12.65/$1,000.00 of direct work
volume.
3.3 CONSTRUCTION PHASE SERVICES
3.3.1 The Construction Phase will commence upon the
issuance by the Owner to the Development Manager and
Design/Builder of a written Notice to Proceed with
construction. This Notice to Proceed shall not be issuable
until the Owner has complied with all of the following
items: (a) all offsite utilities are developed and/or
relocated to allow construction of the Project in
accordance with the Contract Documents, (b) the
Construction Fund has been established and evidence that
such funding has been allocated solely for use on the
Project has been accepted by the Design/Builder (written
confirmation of the Construction Fund and its sole
allocation for the Project from the City shall be
acceptable), (c) all zoning, platting and other governmental
regulations associated with the site have been satisfied,
3.3.2 In order to complete the Work, the Design/Builder
shall provide all necessary construction supervision,
inspection, construction equipment, labor, materials, tools,
and subcontracted items.
3.3.3 The Design/Builder shall give all notices and comply
with all laws and ordinances legally enacted at the date of
execution of the Agreement which govern the proper
performance of the Work.
3.3.4 The Design/Builder shall prepare and submit a
Schedule of Work for the Development Manager' s and
Owner' s written approval. This schedule shall indicate the
dates for the start and completion of the various stages of
the construction including the dates when information and
approvals are required from the Development Manager or
Owner. It shall be revised on a monthly basis or as
required by the conditions of the Work, and reviewed by
Development Manager and Owner.
3.3.5 The Owner shall assist the Design/Builder in
securing the building permits necessary for the
construction of the Project.
3.3.6 The Design/Builder shall take necessary precautions
for the safety of its employees on the Project, and shall
comply with all applicable provisions of federal, state and
municipal safety laws to prevent accidents or injury to
persons on, about or adjacent to the Project site. The
Design/Builder, directly or through its Subcontractors, shall
erect and properly maintain at all times, as required by the
conditions and progress of the Work, necessary safeguards
for the protection of workers and the public. The
Design/Builder, however, shall not be responsible for the
elimination or abatement of safety hazards created or
otherwise resulting from work at the Project Site carried on
by the Development Manager and/or Owner or its
employees, agents, Separate Contractors or tenants. The
Development Manager and Owner agree to cause their
employees, agents, Separate Contractors and tenants to
abide by and fully adhere to all applicable provisions of
federal, state and municipal safety laws and regulations.
The above provision shall not relieve Subcontractors 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 Conference Center with
the work on the adjoining hotel in such a manner that all
construction phase services for both projects shall be
seamless and handled in all respects for safety purposes as
if the two projects 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. The Development
Manager and Owner shall be afforded access to all the
Design/Builder' s records, books, correspondence,
instructions, drawings, receipts, vouchers, memoranda and
similar data relating to this Agreement. 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 monthly written
reports to the Development Manager and Owner on the
progress of the Work as agreed to by the Development
Manager, Owner and Design/Builder.
3.3.9 The Design/Builder shall develop a system of cost
reporting for the Work, including regular monitoring of
actual costs for activities in progress and estimates for
uncompleted tasks and proposed changes in the Work.
Design/Builder shall make available proprietary software
that Design/Builder uses to maintain costs for Development
Manager s use strictly with regard to the Project and shall
train Development Manager' s personnel in the use of such
software. Development Manager and Owner acknowledge
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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
reports shall be presented to the Development Manager
and Owner at monthly intervals.
3.3.10 At all times the Design/Builder shall
maintain the Site of the Work 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 a construction
trailer to house the Owner' s designated field
representative, and the Development Manager' s
designated field representative for the construction period,
but in no event, after Final Completion, The Design/Builder
shall provide electricity, regular cleaning, and tables and
chairs. The Development Manager and Owner will provide
their own equipment and supplies to carry out their work.
3.4 HAZARDOUS MATERIAL
3.4.1 A Hazardous Material is any substance or material
identified now or in the future as hazardous under any
federal, state or local law or regulation, or any other
substance or material which may be considered hazardous
or otherwise subject to statutory or regulatory
requirements governing handling, disposal and/or clean-up.
The Design/Builder shall not be obligated to commence or
continue Work until any Hazardous Material discovered at
the Site and existing at the Site prior to Notice to Proceed
(" Pre -Existing Hazardous Material") has been removed,
rendered or determined to be harmless by the Hotel
Owner, as certified by an independent testing laboratory
and approved by the appropriate government agency.
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, Development Manager and Hotel
Owner and, if required, the government agency with
jurisdiction.
3.4.3 The Design/Builder shall not be required to perform
any Work relating to or in the area of any Pre -Existing
Hazardous Material without written mutual agreement.
3.4.4 For any Pre -Existing Hazardous Material, the Hotel
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 Hotel
Owner, and shall be performed 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 upon written
agreement between the parties after the Pre -Existing
Hazardous Material has been removed or rendered
harmless.
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.
3.4.6 To the fullest extent permitted by law, the Hotel
Owner shall defend, indemnify and hold harmless the
Development Manager, the Owner, Architect/Engineer,
Design/Builder, Subcontractors and sub -subcontractors,
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, costs and
expenses, whether direct or indirect, incurred in
connection with litigation, mediation or arbitration, arising
out of or relating to the performance of the Work in any
area affected by Pre -Existing Hazardous Materials. To the
fullest extent permitted by law, such indemnification shall
apply regardless of the fault, negligence, breach of
warranty or contract, or strict liability of the indemnitee.
3.4.7 The terms of this Paragraph 3.4 shall survive the
completion of the Work under this Agreement and/or any
termination of this Agreement.
3.4.8 To the fullest extent permitted by law,
Design/Builder shall defend, indemnify and hold harmless,
Development Manager, Owner, and Hotel 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 by the Design/Builder, its Subcontractors
(including sub -subcontractors and material suppliers), and
the agents and employees of each of them, to the extent
that any such claim, damage, loss, cost or expense arises
out of or in connection with the grossly negligent acts or
omissions of Design/Builder, its Subcontractors (including
sub -subcontractors and material suppliers), and the agents
and employees of each of them.
3.4.9 The Hotel Owner shall provide satisfactory evidence
to the Design/Builder that all of the provisions of Article
3.4 have been carried forward (if and to the extent
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applicable) in subsequent agreements that the Owner
executes with any other party including the Hotel Owner.
The Hotel Owner shall provide for proper indemnity to the
Design/Builder and for additional costs to be paid to the
Design/Builder to the extent that Pre -Existing Hazardous
Material is encountered at the Site.
3.5 ROYALTIES, PATENTS AND COPYRIGHTS The
Design/Builder shall pay all royalties and license fees which
may be due on the inclusion of any patented or
copyrighted materials, methods or systems selected by the
Design/Builder and incorporated in the Work. The
Design/Builder shall defend, indemnify and hold the
Development Manager, and Owner, their agents,
employees, officers harmless from all suits or claims for
infringement of any patent rights or copyrights arising out
of such selection. The Owner agrees to defend, indemnify
and hold the Design/Builder harmless from any suits or
claims of infringement of any patent rights or copyrights
arising out of any patented or copyrighted materials,
methods or systems specified by the Owner.
3.6 CONFIDENTIALITY Design/Builder shall treat as
confidential and not disclose to third persons, except
Subcontractors (including Sub -subcontractors and material
suppliers) and their respective employees and agents as is
necessary for the performance of the Work, including
authorities having jurisdiction or use for its own benefit
any of Development Manager' s and Owner' s
development strategies, confidential information, know-
how, discoveries, production methods and the like that
may be disclosed and identified as confidential to
Design/Builder by the Owner or the Development Manager
in connection with the Work. Development Manager and
Owner (to the extent permitted by Law) shall treat as
confidential information, and not disclose to any
unnecessary third persons or parties, all of
Design/Builder' s estimating systems, historical and
parameter cost data or any other confidential information
that may be disclosed and identified as confidential to
Development Manager and Owner by Design/Builder in
connection with the performance of this Agreement.
3.7 WARRANTIES AND COMPLETION
3.7.1 The Design/Builder warrants that all materials and
equipment furnished under the Construction Phase of this
Agreement will be new, of good quality, in conformance
with the Contract Documents, and free from defective
workmanship and materials. Warranties shall commence on
the date of Substantial Completion of the Work or of a
designated portion. 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 year from the date of Substantial
Completion. All warranties required beyond one year shall
be from manufacturers, suppliers or the installers of
components and shall be assigned directly to the Owner.
3.7.2 Those 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 objection of Design/Builder shall be covered
exclusively by the warranty of the manufacturer. There are
no warranties under Section 3.7.2 which extend beyond
the description on the face thereof. All other warranties
expressed or implied including the warranty of
merchantability and the warranty of fitness for a particular
purpose are expressly disclaimed.
3.7.3 The Design/Builder shall secure required certificates
of inspection, testing or approval and deliver them to the
Owner.
3.7.4 The Design/Builder shall collect all written warranties
and equipment manuals and deliver them to the Owner.
3.7.5 With the assistance of the Owner' s maintenance
personnel including any Separate Contractors as required
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, that it intends to use for
such checkout, startup or testing.
3.7.6 Design/Builder shall immediately proceed to correct
Work rejected by Development Manager's or Owner's
Representative as defective or failing to conform to the
Contract Documents, unless such Work is accepted in
accordance with other provisions of this Agreement.
Design/Builder as a charge against the GMP shall bear all
costs and expenses associated with correcting such
rejected Work, including any additional testing and
inspections and any fees and expenses made necessary
thereby, without adjustment to the GMP.
3.7.7 Owner may, at its sole discretion, choose to accept
defective or nonconforming Work. Such acceptance shall
not be effective unless specifically and expressly stated in
writing by Owner' s Representative. In such event, the
GMP shall be reduced by the reasonable costs of removing
and correcting the defective or nonconforming Work,
regardless of whether Final Payment has been made or the
defective Work replaced or corrected, the intent being that
Owner may use such funds to remedy such defects at a
time and in a manner convenient to Owner. 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
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Owner, pay Owner any shortfall of compensation for
accepting defective or nonconforming Work.
3.8 ADDITIONAL SERVICES The Design/Builder shall
provide or procure the following Additional Services upon
the request of the Development Manager and Owner. A
written agreement between the parties to this Agreement
shall define the extent of such Additional Services. Such
Additional Services shall be considered a change in the
Work, unless they are specifically included in the
statement of the basis of the GMP as set forth in
Amendment No. 1.
1 Costs associated with the purchase of the site or
for any site work required to comply with the
Notice to Proceed.
.2 FF&E and OSE work which will be constructed
through the Development Manager.
.3 Interior Design.
.4 Making revisions to the Schematic Design, Design
Development, Construction Documents or
documents forming the basis of the GMP after
they have been approved by the Development
Manager and Owner, and which are due to causes
beyond the control of the Design/Builder.
.5 Estimates, proposals, appraisals, consultations,
negotiations and services in connection with the
repair or replacement of an insured loss.
.6 The premium portion of overtime work ordered by
the Development Manager and Owner including
productivity impact costs.
7 Obtaining service Contractors and training
maintenance personnel, assisting and consulting in
the use of systems and equipment after the initial
start up, and adjusting and balancing of systems
and equipment, which will be performed by the
Owner' s Separate Contractor(s).
.8 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.
.9 Serving or preparing to serve as an expert
witness in connection with any proceeding, legal
or otherwise, regarding the Project.
10 Intentionally Omitted.
ARTICLE 4
DEVELOPMENT MANAGERIOWNER S RESPONSIBILITIES
4.1 INFORMATION AND SERVICES PROVIDED BY
DEVELOPMENT MANAGER & OWNER
4.1.1 The Development Manager and/or Owner shall
provide full information in a timely manner regarding
requirements for the Project, including the Program and
other relevant information. The Design/Builder recognizes
that the Development Manager has entered into a Master
Development Management Agreement with the Owner and
the Design/Builder has access to such agreement as a
public record. Owner and Development Manager agree to
notify Design/Builder in writing if the terms of the
Development Management Agreement are changed in any
material way over time.
4.1.2 The Owner or Hotel Owner shall provide:
Hotel Owner shall provide information describing
the physical characteristics of the site, including
surveys, site evaluations, legal descriptions,
existing conditions, subsurface and environmental
studies, reports and investigations.
.2 Unless otherwise provided in the Contract
Documents, Owner shall provide necessary
approvals, site plan review, rezoning, easements
and assessments, necessary permits, fees and
charges required for the construction, use,
occupancy or renovation of permanent structures,
including legal and other required services.
.3 Owner shall provide tax-exempt certificates, if
applicable.
4.1.3 The Development Manager and Owner shall provide
reasonable evidence satisfactory to the Design/Builder,
prior to commencing the Work, and during the progress of
the Work, that sufficient funds are available and
committed for the entire cost of the Project (i.e. the
Construction Fund), including an allowance for changes in
the Work as may be approved in the course of the Work.
Unless such reasonable evidence is provided, the
Design/Builder shall not be required to commence or
continue the Work. Design/Builder shall be entitled to a
regular update of status of funds by virtue of a
certification of remaining funds from the City but no more
frequently than monthly. The Design/Builder may stop
Work after seven (7) days' written notice to the
Development Manager and Owner if such evidence is not
presented within a reasonable time. The failure of the
Design/Builder to insist upon the providing of this evidence
at any one time shall not be a waiver of the Development
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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 be entitled to rely on the
completeness and accuracy of the information and services
required by this Paragraph 4.1.
4.1.5 Any unforeseen condition or any evidence of dispute
which may arise between the Owner and the Development
Manager resulting in default of the Development Manager,
shall not affect the Design/Builder' s right to be paid under
this Agreement.
4.2 DEVELOPMENT MANAGER S/OWNER S
RESPONSIBILITIES DURING PRECONSTRUCTION
PHASE
4.2.1 The Development Manager provided the Program at
the inception of the Preconstruction Phase and shall review
and timely approve schedules and estimates furnished
during the Reconstruction Phase as set forth in Paragraph
3.1, and the GMP proposal as set forth in Paragraph 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 project.
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
Subparagraph 3.3.4, in a timely manner.
4.3.2 If the Development Manager becomes aware of any
error, omission or failure to meet the requirements of the
Contract Documents or any fault or defect in the Work,
the Development Manager shall give prompt written notice
to the Design/Builder and the Owner, if applicable.
4.3.3 The Development Manager and Owner shall
communicate with the Design/Builder' s Subcontractors
and suppliers only through the Design/Builder. The
Development Manager and Owner shall have no
contractual obligations to Subcontractors or suppliers.
4.4 DEVELOPMENT MANAGER/DESIGN/BUILDER /
OWNER S REPRESENTATIVE The Development
Manager' s representative for the Reconstruction Phase is
Eric Anthony Traub, and the Development Manager's
representative for the Construction Phase is Tom Topolski
and the Owner' s representative is Mary Crites, all of
whom are agreed to by the parties. The Development
Manager' s representative during the Construction Phase
shall be assigned to the Project at least one-half time until
the Final Completion Date. 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 Paragraph 4.1
so as not to delay the Design/Builder' s Work; and
.3 shall have authority to bind their respective
participants in all matters requiring the
Development Manager and Owner' s approval,
authorization or written notice. If the Development
Manager or Owner change 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 Project 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 act as a
representative and to oversee the completion of
the Project in accordance with the Contract
Documents on behalf of the Owner. The
Development Manager shall keep the Owner
informed of his decisions on a regular basis.
.5 Owner' s and Development Manager' s
representatives shall, within seven (7) days of
presentation by Design/Builder, reach agreement
on decisions related to the Project which require
approval of either or both parties. In the event of
any dispute or conflict between Owner and
Development Manager is not resolved within
seven days, the Design/Builder shall act in
accordance with the Owner' s decision, so long as
adjustments in the contract time or the GMP are
agreed to by the Owner and Design/Builder.
ARTICLE 5
SUBCONTRACTS
Work not performed by the Design/Builder with its own
forces shall be performed by Subcontractors.
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5.1 RETAINING SUBCONTRACTORS The Design/Builder
shall submit a list of all Subcontractors prior to award of
each subcontract. The Design/Builder shall not retain any
Subcontractor to whom the Development Manager or
Owner has a reasonable and timely objection, provided
that the objecting party agrees to compensate the
Design/Builder for any additional costs, time, or other
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.
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 Project,
including: (a) preparing lists of prospective 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 Project to prospective bidders;
(f) conducting pre-bid conferences; (g) receiving and
analyzing bids and providing notification to Development
Manager and Owner regarding bid awards; (h)
investigating the acceptability and responsibility of sub -
subcontractors or suppliers proposed by any Subcontractor
and advising Development Manager and Owner of such
evaluations, and (1) negotiating with Subcontractors
concerning any matter related to the Project.
5.1.2 COMPETITIVE PROCUREMENT Design/Builder shall
use competitive procurement methods, and subject to
market availability by trade, shall secure competitive
proposals for each component of work over $50,000. It is
specifically understood that public bidding procedures are
not required and Design/Builder is authorized to negotiate
with apparent low responsive bidders to search out best
value for the Project.
5.2 MANAGEMENT OF SUBCONTRACTORS The
Design/Builder shall be responsible for the management of
the Subcontractors in the performance of their work.
5.3 ASSIGNMENT OF SUBCONTRACT AGREEMENTS
The Design/Builder shall provide for assignment of
subcontract agreements in the event that the Owner
terminates this Agreement for cause as provided in
Paragraph 12.2. Following such termination, the Owner
shall notify in writing, those Subcontractors whose
assignments will be accepted, subject to the rights of
sureties.
5.4 COMPLIANCE WITH LAWS All Agreements
between Design/Builder and any Subcontractors shall
include the agreement of such Subcontractors to comply
with Applicable Laws.
ARTICLE 6
CONTRACT TIME
6.1 COMMENCEMENT OF THE WORK The
Preconstruction Phase Work has commenced on or about
December 12, 2006, and for the purposes of this
Agreement, said date shall be the Effective Date of this
Agreement. 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 Paragraph 3.4 and Subparagraph 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 Articles 1.26
and 3.3.1 herein.
6.2 SUBSTANTIAL COMPLETION At such time as a
GMP is accepted, a date of Substantial Completion of the
Work shall be established and set forth in Amendment No.
1. When such a date is established, Design/Builder will
reasonably and diligently pursue the Work and the
completion thereof.
6.2.1 FINAL COMPLETION The date of Final
Completion, as defined in Paragraph 1.9, shall be no more
than 60 days after the Actual Substantial Completion
Date.
6.2.2 Intentionally Omitted.
6.2.3 Intentionally Omitted.
6.3 DELAYS IN THE WORK
6.3.1 If causes due to Force Majeure delay the progress of
the Work, then the GMP, the Design/Builder' s Fee and
the dates of Substantial Completion and Final Completion
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. Acts of Nature that have 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
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of said Acts of Nature on the Work and its progress will be
handled in accordance with Article 13.
6.3.1.1 Adverse 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
four (4) weather delay days in each month already being
included in the construction schedule. These four (4) days
are not cumulative. The adverse weather delay days shall
be tracked and reported to Development Manager on a
monthly basis.
6.3.2 In the event delays to the Project are encountered
for any reason, the parties agree to undertake reasonable
steps to mitigate the effect of such delays.
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 Article 6.3.1)
shall be funded from the Owner' s Project Contingency or
any other available source acceptable to the
Design/Builder, established over and beyond the
Construction Fund. Such Additional costs and/or
expenditures shall be available to the Design/Builder
without reasonable objection for delays outside of the
Design/Builder s control.
6.3.3.1 General Conditions related costs (staff
supervision and job office related expense) shall be
adjusted by $_ per work day for weather delay days in
excess of the four (4) days per calendar month listed in
6.3.1.1. outside the control of the Design/Builder, but only
to the extent that the Actual Substantial Completion Date
is later than the projected Actual Substantial Completion
Date in the Project adjusted baseline schedule.
6.3.4 CLAIMS FOR DAMAGES Each of the Owner,
Design/Builder, and Development Manager waives claims
against the other parties hereto for consequential damages
arising out of or relating to this Agreement. This waiver
includes damages incurred by any party for rental
expenses, for losses of use, income, profit, financing,
business and reputation, and loss of management or
employee productivity or of the services of such persons.
This waiver is applicable, without limitation, to all
consequential damages due to any party's termination in
accordance with Article 12.
ARTICLE 7
COM PENSATION
7.1 INITIAL PAYMENT Upon execution of this
Agreement an initial payment of zero dollars
($ -0-j shall be made to the Design/Builder. The
Design/Builder shall invoice monthly during the
Preconstruction Phase Service with payment subject to the
terms of Article 7.2.
7.2 PRECONSTRUCTION PHASE COMPENSATION
7.2.1 The cost of services performed directly by the
Architect/Engineer is part of the Preconstruction Phase
Compensation and the Design/Builder' s GMP, however, it
shall be detailed separately from the Design/Builder' s
proposal for Design Phase Services, as detailed in Article
7.2.2. The payments to the Architect/Engineer shall be as
detailed in a separate Agreement between the
Design/Builder and Architect/Engineer.
7.2.2 The Owner shall compensate the Design/Builder for
the services performed during the Preconstruction Phase
and the Design Phase as described in Paragraph 3.1,
including preparation of a GMP proposal as described in
Paragraph 3.2. The Design/Builder shall then compensate
the Architect/Engineer for their Design Phase Services.
7.2.2.1 Design/Builder Preconstruction Phase
Compensation. For the period from the Effective Date
through the time when the Project is financed, and the
Construction Fund is established, the Development
Manager (subject to reimbursement by Owner)shall pay
monthly Design/Builder Preconstruction Phase
Compensation consisting of the Reimbursable Expenses
portion of Cost of the Work which Design/Builder incurs in
performance of Preconstruction Phase Services, as outlined
in Design/Builder' s proposal for same. The Preconstruction
Phase Compensation shall be deemed to include, without
limitation, such items as overhead and all expenses
incurred in performance of the Preconstruction Phase
Services, up to the point when the GMP is established.
The Preconstruction Phase Compensation shall be rolled
into and become a part of the GMP once established.
7.2.2.2 Intentionally Omitted.
7.2.2.3 Intentionally Omitted.
7.2.2.4 Intentionally Omitted.
7.2.2.5 Payments for the Design/Builder Preconstruction
Phase Services shall be due and payable monthly within
twenty (20) days from receipt of application for payment.
Final payment shall be due and payable at the time of (but
not as a part of) the first funding of the Hotel debt
financing.
7.3 CONSTRUCTION PHASE COMPENSATION
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7.3.1 The Owner shall compensate the Design/Builder for
Work performed following the commencement of the
Construction Phase on the following basis:
1 the Cost of the Work as allowed and defined in
Article 8, including the Construction Contingency
(less retention as provided herein).
.2 the Construction Phase Fee of four and one-half
percent (4.5%) of 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 Article 7.3 shall
be limited to the GMP established in Amendment No. 1, 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 Development
Manager, Owner and the Design/Builder as follows: (a)
Should the combined sum of the Cost of the Work,
Preconstruction Phase Compensation, and
Design/Builder' s Construction Phase Fee be less than the
GMP the resulting savings shall be shared with thirty
percent (30%) allocated to the Owner, thirty percent
(30%) allocated to Development Manager and forty
percent (40%) allocated to Design/Builder.
7.3.3 Payment for Construction Phase Services shall be as
set forth in Article 10. If Reconstruction Phase Services
continue to be provided after construction has
commenced, the Design/Builder shall be compensated as
provided in Article 8, Cost of the Work, or as mutually
agreed.
7.4 DESIGNIBUILDER S FEE The Design/Builder' s Fee
includes the following:
salaries and other mandatory or customary
compensation of the Design/Builder s employees
at its principal and branch offices, except
employees listed in Subparagraph 8.2.2;
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 adjusted as
follows;
Fee of four and one-half percent (4.5%) of the
Cost of the Work associated with the change,
.2 for delays in the Work not the responsibility of the
Design/Builder under this Agreement, there will be
an equitable adjustment in the Design/Builder s
Fee to compensate the Design/Builder for
specified and identifiable increased expenses; and
.3 if the Design/Builder is placed in charge of
managing the replacement of an insured or
uninsured loss, the Design/Builder shall be paid an
additional Fee in the same proportion that the
Design/Builder' s Fee bears to the estimated Cost
of the Work, unless the loss is caused by the
Design/Builder.
ARTICLE 8
COST OF THE WORK
The Development Manager and Owner agree to pay the
Design/Builder for the Cost of the Work as defined in this
Article. This payment shall be in addition to the
Design/Builder s Fee stipulated in Article 7. The Cost of
the Work (including cost items for Preconstruction Phase
Services), the Design/Builder' s Fee, and the Construction
Contingency are all included in the GMP.
8.1 COST ITEMS FOR PRECONSTRUCTION PHASE
SERVICES
8.1.1 Compensation for Reconstruction Phase Services as
provided in Paragraph 7.2, and 7.3.3.
8.2 COST ITEMS FOR CONSTRUCTION PHASE
SERVICES
.2 general and administrative expenses of the
Design/Builder s principal and branch offices 8.2.1 Wages paid for labor in the direct employ of the
other than the field office, except as may be Design/Builder in the performance of the Work.
expressly included in Article 8; and
.3 the Design/Builder' s capital expenses, including
interest on the Design/Builder' s capital employed
for the Work, provided that the Design/Builder is
paid per the terms of this Agreement.
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 documented time as devoted to the
Work and shall be adjusted annually.
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8.2.3 Cost of all employee benefits and taxes including
but not limited to workers' compensation, unemployment
compensation, Social Security, health, welfare, retirement
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 Subparagraphs 8.2.1 and 8.2.2.
8.2.4 Reasonable transportation, travel, hotel and moving
expenses of the Design/Builder' 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 services procured by
the Design/Builder in accordance with Article 7.2.
8.2.8 Cost, including transportation and maintenance of all
materials, supplies, equipment, temporary facilities and
hand tools not owned by the workers that are used or
consumed in the performance of the Work, less salvage
value; and cost less salvage value on such items used, but
not consumed that remain the property of the
Design/Builder.
8.2.9 Rental charges of all necessary machinery and
equipment, exclusive of hand tools owned by workers,
used at the site of the Work, whether rented from the
Design/Builder or others, including installation, repair and
replacement, dismantling, removal, maintenance,
transportation and delivery costs at rental charges
consistent with those prevailing in the area.
8.2.10 Cost of premiums for all insurance and surety
bonds which the Design/Builder is required to procure or
deems necessary, in accordance with Exhibit " B";
8.2.11 Sales, use, gross receipts or other taxes, tariffs or
duties related to the Work for which the Design/Builder is
liable.
8.2.12 Fees, licenses, tests, royalties, damages for
infringement of patents and/or copyrights, including costs
of defending related suits for which the Design/Builder is
not responsible as set forth in Paragraph 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.
8.2.14 All costs associated with establishing, equipping,
operating, maintaining and demobilizing the field office.
8.2.15 Reproduction costs, photographs, cost of
telegrams, facsimile transmissions, long distance telephone
calls, data processing services, postage, express delivery
charges, telephone service at the site and reasonable petty
cash expenses at the field office, and at the
Design/Builders Branch Office for the portion incidental to
this Project to the extent it is included in the GMP.
8.2.16 All water, power and fuel costs necessary for the
Work not including " tap or " user" fees, unless specifically
noted in the Design/Builders GMP.
8.2.17 Cost of removal of all non -hazardous substances,
debris and waste materials.
8.2.18 Costs incurred due to an emergency affecting the
safety of persons and/or property.
8.2.19 All costs directly incurred in the
performance of the Work or in connection with the Project,
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.
8.2.20 All costs associated with development
placing, managing, and implementing a Project specific
(CCIP) wrap-up insurance program, including expenditures
for deductibles, where applicable.
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 the case may be, 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 or at the Design/Builder' s main office in
Dallas, Texas, upon 48 hour' s notice from Development
Manager.
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 CHANGE ORDERS A Change Order is a written
instrument, issued after execution of this Agreement,
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signed by the Development Manager and Owner and
Design/Builder stating their agreement upon a change and
the adjustment in the GMP, if any, compensation for
Preconstruction 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 Preconstruction 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 Paragraph 7.2 and
Article 8 and a mutually acceptable
Design/Builder's Fee as determined in
Subparagraph 7.5.1; or
.4 if an increase or decrease cannot be agreed to as
set forth in Subparagraphs 9.2.1 through 9.2.3
and the Development Manager or Owner issue a
written order for the Design/Builder to proceed
with the change, the cost of the change in the
Work shall be determined by the reasonable
expense and savings of the performance of the
Work resulting from the change. If there is a net
increase in the GMP, the Design/Builder's Fee shall
be adjusted as set forth in Subparagraph 7.5.1. In
case of a net decrease in the GMP, the
Design/Builder's Fee shall not be adjusted. The
Design/Builder shall maintain a documented,
itemized accounting evidencing the expenses and
savings, and provide such documentation to
Development Manager and to Owner.
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, and Design/Builder, except as provided in
Subparagraph 9.2.4. The Design/Builder shall not be
authorized to perform changes in 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 Order alters original quantities to a degree that
application of previously agreed to unit prices would be
inequitable to either the Development Manager, Owner or
the Design/Builder, the unit prices and the GMP shall be
equitably adjusted.
9.5 UNKNOWN CONDITIONS If in the performance of
the Work the Design/Builder finds latent, concealed or
subsurface physical conditions which differ from the
conditions the Design/Builder reasonably anticipated, or if
the soil associated with the Site is found to be unsuitable
for reuse or structurally unsound, or if physical conditions
are materially different from those normally encountered
and generally recognized as inherent in the kind of work
provided for in this Agreement or for any other Site related
delay or encounter, then the GMP, compensation for
Preconstruction Phase Services, the Design/Builder's Fee,
and the date of Substantial Completion and Final
Completion shall be equitably adjusted by Change Order
within a reasonable time after the conditions are first
observed.
9.6 CLAIMS FOR ADDITIONAL COST OR TIME For any
claim for an increase in the GMP, compensation for
Preconstruction Phase Services, the Design/Builder's Fee
and/or an extension in the date of Substantial Completion
and Final Completion the Design/Builder shall give the
Development Manager and Owner written notice of the
claim within twenty-one (21) days after the occurrence
giving rise to the claim or within twenty-one (21) days
after the Design/Builder first recognizes the condition
giving rise to the claim, whichever is later. Except in an
emergency, notice shall be given before proceeding with
the Work. Claims for design and estimating costs incurred
in connection with possible changes requested by the
Development Manager or Owner, but which do not
proceed, shall be made within twenty-one (21) days after
the decision is made not to proceed. Any change in the
GMP, compensation for Preconstruction Phases Services,
the Design/Builder's Fee, and date of Substantial
Completion and Final Completion resulting from such claim
shall be authorized by Change Order.
9.7 EMERGENCIES In any emergency affecting the
safety of persons and/or property, the Design/Builder shall
act, at its discretion, to prevent threatened damage, injury
or loss. Any change in the GMP, compensation for
Preconstruction Phase Services, the Design/Builder's Fee
and/or extension of the date of Substantial Completion and
Final Completion on account of emergency work shall be
determined as provided in this Article.
ARTICLE 10
PAYMENT FOR CONSTRUCTION PHASE SERVICES
10.1 PROGRESS PAYMENTS
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10.1.1 PROGRESS PAYMENTS. Design/Builder
shall submit, as a part of normal progress payments, a
schedule of values for all of the Work, which will subdivide
the Work into its respective parts and will include values
for all items comprising the Work. The schedule of values
shall serve as the basis for monthly progress payments
made to Design/Builder throughout the project. On or
about the 25" day of each month, the Design/Builder shall
review with the Development Manager' s Representative a
pencil draw of the proposed application for payment for
costs incurred during that month. Any invoices for costs
which are not included in such pencil draw will be held
over until the next monthly pay period. The amount agreed
to at the pencil draw review meeting shall be processed
and submitted as an approved Application for Payment on
or about the first day of the following calendar month. The
Development Manager will review the monthly pay
applications with the Owner; however, such review shall
not delay payment to the Design/Builder.
10.1.2 APPLICATIONS FOR PAYMENT. On or
about the first day of each month, the Design/Builder shall
submit to the Development Manager an Application for
Payment as outlined herewith, consisting of an estimate of
the Cost of the Work performed during the previous
month, (including the cost of material stored on the site,
on terms and conditions acceptable to Development
Manager, including all appropriate paperwork as required
and approved by the Development Manager), less all
previous payments and Subcontractor reserves withheld.
Such reserves will be based on retainage of 10% of that
portion of the Work performed by Subcontractors; when
their work is 50% complete and the Development Manager
approves, there shall be no further retainage withheld on
subsequent payments, and the balance shall be paid when
their work is 100% complete as reasonably and promptly
determined by the Development Manager, subject to
receipt of final lien waivers (conditioned only upon
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 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
and Design/Builder. The form of application for Payment
shall be AIA Document G-702, Application and
Certification for Payment. The Development Manager shall
seek approval of the Application for Payment by the
Owner, in accordance with 10.1.3, 10.1.4, and 10.1.5.
10.1.3 PAYMENT TIME FRAMES. Commencing with the
first Application of Payment, not later than the tenth (10'")
day of each month (or if an Application for Payment is
received by the Development Manager after the first day of
the month, within ten days after receipt of such monthly
Application for Payment) and verification by the
Development Manager s Representative that such
application matches the agreed upon pencil draw amounts,
the Development Manager shall cause through the
Owner' s Construction Fund or any other fund, to 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. 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 tenth (10'")
of the month.
10.1.4 If the Owner fails to pay the Design/Builder at
the time payment of any amount becomes due, then the
Design/Builder may, at any time thereafter, upon serving
written notice that the Work will be stopped within five (5)
business days after receipt of the notice by the
Development Manager and Owner, and after such (5)
business -day period, stop the Work until payment of the
amount owing has been received.
10.1.5 Payments due but unpaid shall bear
interest from the due date to the date of payment equal to
the prime rate plus two percent (2%) per annum.
10.1.6 The Design/Builder warrants and guarantees that
title to all Work, materials and equipment covered by an
Application for Payment, whether incorporated in the
Project or not, will pass to the Owner upon receipt of such
payment by the Design/Builder free and clear of all liens,
claims, security interests or encumbrances, hereinafter
referred to as "liens".
10.1.7 The Development Manager's and/or
Owner' s progress payment, occupancy or use of the
Project, whether in whole or in part, shall not be deemed
an acceptance of any Work not conforming to the
requirements of the Contract Documents.
10.1.8 Upon Substantial Completion of the Work
and after delivery of all warranties to Owner, the
Development Manager shall pay the Design/Builder the
unpaid balance of the Cost of the Work including
retainage, compensation for Preconstruction Phase
Services and the Design/Builder's Fee, less a sum equal to
two hundred percent (200°/x) of the Design/Builder's
estimated cost of completing any unfinished items, as
agreed to between the Development Manager and
Design/Builder as to extent and time for completion or one
percent (1%) of the GMP, whichever is greater. The
Development Manager and Owner thereafter shall pay the
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Design/Builder monthly the amount retained for unfinished
items as each item is completed.
10.1.9 The Design/Builder shall provide (or cause to be
provided) As -Built drawings to the Owner prior to Final
Completion, as a condition precedent to final payment.
10.1.10The Design/Builder shall assist the Owner,
Development Manager and their respective Separate
Contractors in obtaining the Final Certificate of
Occupancy.
10.2 FINALPAYMENT
10.2.1 Final payment, consisting of the unpaid
balance of the Cost of the Work, compensation for
Preconstruction Phase Services and the Design/Builder's
Fee, less the initial payment made under Paragraph 7.1,
shall be due and payable when the Work is fully
completed. Before issuance of final payment, the
Development Manager and Owner may request
satisfactory evidence that all payrolls, materials bills and
other indebtedness connected with the Work have been
paid or otherwise satisfied (conditioned only upon
payment)..
10.2.2 In making final payment the Development
Manager and Owner waive all claims except for:
.1 outstanding liens;
.2 improper workmanship or defective materials
appearing within one year after the date of
Substantial Completion;
.3 Work not in conformance with the Contract
Documents; and
.4 terms of any special warranties required by the
Contract Documents.
10.2.3 In accepting final payment, the Design/Builder
waives all claims except those previously made in writing
and which remain unsettled.
ARTICLE 11
INDEMNITY, INSURANCE AND WAIVER OF
SUBROGATION
11.1 INDEMNIFICATION
11.1.1 TO THE FULLEST EXTENT PERMITTED
BY LAW, THE DESIGN/BUILDER SHALL IDEMNIFY AND
HOLD HARMLESS THE OWNER, THE DEVELOPMENT
MANAGER HOTEL OWNER AND THEIR RESPECTIVE
OFFICERS, CONSULTANTS, AND AGENTS AND
EMPLOYEES (THE - INDEMNIFIED PARTIES-) FROM AND
AGAINST CLAIMS, DAMAGES, LOSSES AND EXPENSES,
INCLUDING BUT NOT LIMITED TO JUDGMENTS AND
COSTS OF DEFENSE, INCLUDING BUT NOT LIMITED TO
ATTORNEYS' FEES AND EXPERT WITNESS FEES,
ARISING OUT OF OR RESULTING FROM PERFORMANCE
OF THE WORK, PROVIDED THAT SUCH CLAIM,
DAMAGE, LOSS OR EXPENSE IS ATTRIBUTABLE TO
BODILY INJURY, SICKNESS, DISEASE OR DEATH, OR TO
INJURY TO OR DESTRUCTION OF TANGIBLE PROPERTY,
BUT ONLY TO THE EXTENT CAUSED BY THE NEGLIGENT
ACTS OR OMISSIONS OF THE DESIGN/BUILDER, A
SUBCONTRACTOR ANYONE DIRECTLY OR INDIRECTLY
EMPLOYED BY THEM OR ANYONE FOR WHOSE ACTS
THEY MAY BE LIABLE, REGARDLESS OF WHETHER OR
NOT SUCH CLAIM, DAMAGE, LOSS OR EXPENSE IS
CAUSED IN PART BY A PARTY INDEMNIFIED
HEREUNDER SUCH OBLIGATION SHALL NOT BE
CONSTRUED TO NEGATE, ABRIDGE, OR REDUCE OTHER
RIGHTS OR OBLIGATIONS OF INDEMNITY WHICH
WOULD OTHERWISE EXIST AS TO A PARTY OR PERSON
DESCRIBED IN THIS SECITON 11.1. EXPENSES
RECOVERABLE BY AN INDEMNIFIED PARTY AS PART OF
THE DESIGN/BUILDER'S INDEMNITY OBLIGATIONS
UNDER THIS SECTION 11.1 SHALL INCLUDE, WITHOUT
LIMITATION, ALL ATTORNEYS' FEES AND ANY COSTS
INCURRED BY AN INDEMNIFIED PARTY IN ENFORCING
THE PROVISONS OF THE DESIGN/BUILDER S INDEMNITY
OBLIGATIONS. NOTWITHSTANDING THE ABOVE, THE
INDEMNITY OF DESIGN/BUILDER WILL NOT APPLY TO
ANY CLAIMS ARISING OUT OF OR IN CONNECTION
WITH THE WORK TO THE EXTENT, AND ONLY TO THE
EXTENT, SUCH CLAIMS ARE SATISFIED BY BUILDER' S
RISK INSURANCE; PROVIDED, HOWEVER, THIS
LIMITATION ON INDEMNITY IS CONDITIONED UPON
DESIGN/BUILDER' S AGREEMENT TO TAKE ALL ACTIONS
REASONABLY NECESSARY TO FILE AND PROSECUTE
ANY INSURANCE CLAIMS AND TO COOPERATE FULLY
WITH DEVELOPMENT MANAGER AND OWNER FOR THE
RECOVERY OF INSURANCE PROCEEDS ARISING OUT OF
SUCH CLAIMS.
11.1.2 IN ADDITION TO THE FOREGOING, THE
OBLIGATIONS OF THE DESIGN/BUILDER UNDER THE
INDEMNIFICATION PROVISION OF SECTION 11.1 SHALL
APPLY TO LIABILITIES EVEN IF SUCH LIABILITIES ARE
CAUSED IN PART BY THE NEGLIGENCE OF ANY
INDEMNIFIED PARTIES TO THE EXTENT, AND ONLY TO
THE EXTENT SUCH NEGLIGENCE OF ANY INDEMNIFIED
PARTY IS ALLEGED OR PROVEN TO BE BASED UPON (A)
THE EXECUTION AND DELIVERY OF THE CONTRACT
DOCUMENTS, (B) A FAILURE TO SUPERVISE, MONITOR,
OR CONTROL DESIGN/BUILDER' S OR ANY
SUBCONTRACTOR S OR SUB -SUBCONTRACTOR S
ACTIVITIES ON OR ABOUT THE SITE OR OTHERWISE
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WITH RESPECT TO PERFORMANCE OF THE WORK, OR
(C) A FAILURE BY ANY OF THE INDEMNIFIED PARTIES TO
ENFORCE THE DESIGN/BUILDER' S OBLIGATIONS UNDER
THE CONTRACT DOCUMENTS.
11.1.3 In claims by an employee of the
Design/Builder, anyone directly or indirectly employed by
them or anyone of whose acts they may be liable, against
any person or entity indemnified under this Section 11. 1,
the indemnification obligation under Section 11.1 shall not
be limited by a limitation on amount or type of damages,
compensation or benefits payable by or for the Contractor
or a Subcontractor under workers' compensation acts,
disability benefits acts or other employee benefit acts.
11.1.4 Upon timely written notice, the Owner,
The Hotel Owner or the Development Manager may, in
their sole discretion, require the Design/Builder to defend
any of the Indemnified Parties, in connection with any
actions (whether in litigation or arbitration) or claims
subject to the Design/Builder' s indemnification obligations
under this Section 11.1. Nothing herein shall limit the
Design/Builder' s obligations to indemnify the Indemnified
Parties for attorneys' fees and defense costs incurred by
such Indemnified Parties in connection with their defense
of an action or claim under this Section 11.1. To the
fullest extent allowed by law, the Design/Builder' s
obligations to defend hereunder shall arise regardless of
the fault or alleged fault of any person for whom the
Design/Builder otherwise is obligated to defend, except
where the action or claim is asserted by the claimant to
have arisen solely from such indemnified party' s sole
negligence or fault.
11.1.5 The Owner and Development Manager
shall cause their respective Separate Contractors (e.g.
Project operator) to agree to indemnify the Design/Builder,
Architect/Engineer, 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 satisfactory to the
Design/Builder.
11.1.6 The indemnity provisions set forth in this Section
11.1 shall survive the expiration or earlier termination of
this Contract, the final completion of the Work, and any
other services to be provided pursuant to this Agreement.
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 any Subcontractor, 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/Builder or for damages to any other
person;
.5 damage to or destruction of tangible property,
including resulting loss of use, claims for property
other than the Work itself and other property
insured under Paragraph 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 Subparagraph
11.1.1.
The Design/Builder, to the extent allowed by law, shall
name the Owner and Development Manager as additional
insureds on all liability policies, in accordance with Exhibit
1. W.
11.2.2 The Design/Builder's Insurance as
required by Subparagraph 11.2.1 shall be written in
accordance with the requirements of Exhibit " B" attached
hereto and incorporated herein by reference. Design/Builder
shall use a wrap-up insurance program (CCIP) to provide
the necessary coverage's in accordance with the
requirements of Exhibit " B" attached hereto and
incorporated herein by reference.
11.2.3 The insurance policies will state that the
insurance carrier will endeavor to provide written notice of
cancellation or of nonrenewal to the Development Manager
and Owner at least thirty (30) days in advance.
Certificates of insurance showing required coverage to be
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in force shall be filed with the Development Manager and
Owner prior to commencement of the Work.
11.2.4 Products and Completed Operations
insurance shall be maintained for a minimum period of at
least 3 year(s) after the date of Substantial Completion.
11.3 PROFESSIONAL LIABILITY INSURANCE The
Architect/Engineer shall be responsible to obtain
professional liability insurance for claims arising from the
negligent performance of professional services under this
Agreement and shall be written for not less than
$2,000,000.00 per claim and in the aggregate with a
deductible not to exceed $25,000.00. These requirements
shall be continued in effect for 2 year(s) after the date of
Substantial Completion. If the Architect/Engineer retains
consultants for a portion of the design, their professional
liability insurance coverage, including deductible amounts,
shall be as set forth above.
11.4 OWNEMDEVELOPMENT MANAGER'S LIABILITY
INSURANCE The Development Manager and Owner shall
be responsible for obtaining and maintaining their own
liability insurance. Insurance for claims arising out of the
performance of the Development Manager' s and Owner' s
responsibilities hereunder may be purchased and
maintained at the Development Manager's and Owner' s
discretion.
The Owner, by way of the Project operating agreement,
shall make their Separate Contractor (" Operator" )
responsible for all liabilities, including errors and omissions,
relating to any rework, other than rework of the Design
Builder' s Work or the performance of Design Builder' s
warranties under this Agreement, modifications, upgrades
and/or maintenance of the Conference Center and
associated FF&E, after the date of Substantial Completion,
and shall indemnify and hold harmless the Design/Builder
for any such claims or liabilities.
11.5 INSURANCE TO PROTECT PROJECT
11.5.1 As defined in Exhibit " B", the
Design/Builder shall obtain and maintain property insurance
in a form acceptable to the Development Manager and
Owner upon the entire Project for the full cost of
replacement at the time of any loss. This insurance shall
include as additional insureds the Owner, Development
Manager, Hotel Owner, Design/Builder, Subcontractors and
sub -subcontractors. This insurance shall insure against loss
from the perils of fire and extended coverage, and shall
include "all risk" insurance for physical loss or damage
including without duplication of coverage at least: theft,
vandalism, malicious mischief, transit, collapse, falsework,
temporary buildings, debris removal, flood, earthquake,
high wind, water damage, tornadoes, testing, and damage
resulting from defective design, workmanship or material.
The Design/Builder shall increase limits of coverage, if
necessary, to reflect estimated replacement cost. The
Design/Builder shall be responsible for any co-insurance
penalties or deductibles as a Cost of the Work in the GMP.
The Builders' Risk Insurance, to the extent available in the
marketplace, may contain provisions at the Design/Builders
discretion, for payment for delays and/or payment for
accelerating the Work due to a cause covered by the
Builders' Risk Policy.
11.5.2 If the Development Manager, Owner or
other Separate Contractors (Operator) occupy or use a
portion of the Project prior to its Substantial Completion,
such occupancy or use shall not commence prior to a time
mutually agreed to by the Development Manager 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 The Design/Builder shall purchase and
maintain insurance to protect the Owner, Hotel Owner,
Development Manager, Design/Builder, Subcontractors and
sub -subcontractors against loss of use of Hotel Owner s
Development Manager's or Owner' s property due to those
perils insured pursuant to Paragraph 11.5. Such policy will
provide coverage for expediting expenses of materials,
continuing overhead of the Design/Builder, Subcontractors
and sub -subcontractors, necessary labor expense including
overtime, and other determined exposures, including
damages for delays caused by such insurable perils.
Exposures of the Design/Builder, Subcontractors and sub -
subcontractors, shall be determined by mutual agreement
with separate limits of coverage fixed for each item.
11.5.4 Upon the Development Manager's or
Owner' s request, the Design/Builder shall provide a copy
of all policies before beginning construction. Copies of any
subsequent endorsements shall be furnished to the
Development Manager and Owner. The Development
Manager and Owner shall be given at least thirty (30)
days' notice of cancellation, non -renewal, or any
endorsements restricting or reducing coverage.
11.5.5 At Substantial Completion, the Owner or
Owner' s Subtenant shall provide property insurance in a
form and amount acceptable to the Design/Builder, to
replace the Design/Builder' s, Builders' Risk Insurance
provided as defined in Paragraph 11.5.
11.6 PROPERTY INSURANCE LASS ADJUSTMENT
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11.6.1 Any insured loss shall be adjusted with
the Owner, Development Manager, Hotel Owner, and the
Design/Builder and made payable to the Owner,
Development Manager, Hotel Owner, and Design/Builder as
trustees for the insureds, as their interests may appear,
subject to any applicable mortgagee clause.
11.6.2 Upon the occurrence of an insured loss, monies
received will be deposited in a separate account and the
trustees shall make distribution in accordance with the
agreement of the parties in interest, or in the absence of
such agreement, in accordance with an award pursuant to
Article 13. If the trustees 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, Hotel Owner,
Owner and Design/Builder waive all rights against each
other, and any of their respective employees, agents,
consultants, Subcontractors and sub -subcontractors for
damages caused by risks covered by insurance provided in
Paragraph 11.5 to the extent they are covered by that
insurance, except such rights as they may have to the
proceeds of such insurance held by the Owner, Hotel
Owner, Development Manager, and Design/Builder as
trustees. The Design/Builder shall require similar waivers
from all Subcontractors, and shall require each of them to
include similar waivers in their sub -subcontracts. The
Development Manager shall also provide similar waivers in
its Agreement with the Owner.
11.7.2 The Development Manager and Owner
waive subrogation against the Design/Builder,
Subcontractors and sub -subcontractors on all property and
consequential loss policies carried by the Development
Manager or Owner on adjacent properties and under
property and consequential loss policies purchased for the
Project after its completion.
11.7.3 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 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 seven (7) days' written notice to
the Development Manager and 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 fifteen (15) days if the Owner is
pursuing relief from such events,
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 Managers or
Owner s failure to pay the Design/Builder in
accordance with this Agreement;
.2 if the Work is suspended by the Development
Manager or Owner for sixty (60) days,
.3 if the Development Manager, Owner, or any
Separate Contractor materially delay the
Design/Builder in the performance of the Work;
.4 if the Development Manager or Owner otherwise
materially adversely breach this Agreement; or
.5 if the Owner fails to furnish reasonable evidence
that sufficient funds are available and committed
for the entire cost of the Project in accordance
with Subparagraph 4.1.3 of this Agreement.
12.1.2 Upon termination by the Design/Builder in
accordance with Subparagraph 12.1.1, the Design/Builder
shall be entitled to recover from the party or parties
causing the termination, payment for all Work executed
and for any proven loss, cost or expense, including
prorated 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 Subparagraph 12.3.1 or
12.3.2, depending on when the termination occurs, plus
those costs defined in Subparagraphs 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
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Page 22
9/6/2007 9:03:38 AM96'2907 9""
12.2.1 If the Design/Builder persistently fails to
perform any of its obligations under this Agreement, the
Development Manager or Owner may, after seven (7)
days' written notice, during which period the
Design/Builder fails to perform such obligation, undertake
to perform or commence to perform such obligation. The
GMP shall be reduced by the cost to the Development
Manager or Owner of performing such obligations.
12.2.2 Upon fourteen (14) days' written notice
to the Design/Builder and the Design/Builders surety, if
any, the Development Manager or Owner may terminate
this Agreement for any of the following reasons:
.1 if the Design/Builder persistently utilizes improper
materials and/or inadequately skilled workers;
.2 if the Design/Builder persistently does not make
proper payment to laborers, material suppliers or
Subcontractors;
.3 if the Design/Builder persistently fails to abide by
the orders, regulations, rules, ordinances or laws
of governmental authorities having jurisdiction;
.4 if the Design/Builder fails to properly staff the
project; or
.5 if the Design/Builder otherwise materially breaches
this Agreement.
If the Design/Builder fails to cure or if the Design/Builder
has not commenced a continuing path of cure within the
fourteen (14) days written notice by the Development
Manager and Owner, without prejudice to any other right
or remedy, 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 Work is completed.
If the unpaid balance of the Guaranteed Maximum Price
exceeds costs of furnishing the Work and other actual
damages incurred by the Owner not expressly waived,
such excess for Work completed prior to the date of
termination shall be paid to the Design/Builder. If such
costs and damages exceed the unpaid balance, the
Design/Builder shall pay the difference to the Owner
promptly upon demand from Owner.
12.2.3 If the Design/Builder files a petition under
the Bankruptcy Code, and/or if an involuntary petition is
filed against the Design/Builder, this Agreement shall
terminate if the Design/Builder or the Design/Builder's
trustee rejects the Agreement or such involuntary or
voluntary petition is not dismissed within sixty (60) days
of the filing or, if there has been a default, the
Design/Builder is unable to give adequate assurance that
the Design/Builder will perform as required by this
Agreement or otherwise is unable to comply with the
requirements for assuming this Agreement under the
applicable provisions of the Bankruptcy Code.
12.2.4 In the event the Development Manager or
Owner exercises their rights under subparagraph 12.2.1 or
12.2.2, upon the request of the Design/Builder the
Development Manager or Owner shall provide a detailed
accounting of the cost incurred by the Development
Manager and/or Owner.
12.3 TERMINATION BY OWNER WITHOUT CAUSE If the
Owner terminates this Agreement other than as set forth
in Paragraph 12.2, the Owner shall pay the Design/Builder
for all Work executed and for any proven loss, cost or
expense in connection with the Work to date, plus all
demobilization costs. In addition, the Design/Builder shall
be paid an amount calculated as set forth below:
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/Engineer' s
Preconstruction Phase compensation as set forth
in Subparagraph 7.2.2.
.2 if the Owner terminates this Agreement after
commencement of the Construction Phase, the
Design/Builder shall be paid the Design/Builder's
Preconstruction and Construction Phase
Compensation as set forth in Subparagraph 7.2.2
and 100% of the Design/Builder's Fee as set forth
in Subparagraph 7.3.1.2.
.3 in either event, the initial payment as provided in
Paragraph 7.1 shall be credited to the Owner's
account at the time of termination.
.4 the Owner shall also pay to the Design/Builder fair
compensation, either by purchase or rental at the
election of the Owner, for any equipment retained.
The Owner shall assume and become liable for
obligations, commitments and unsettled claims
that the Design/Builder has previously undertaken
or incurred in good faith in connection with the
Work or as a result of the termination of this
Agreement. As a condition of receiving the
payments provided under this Article 12, the
Design/Builder shall cooperate with the Owner by
taking all steps necessary to accomplish the legal
assignment of the Design/Builder's rights and
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Page 23
9/6/2007 9:03:38 AM^""^^' 12:49:68 n""
benefits to the Owner, including the execution
and delivery of required papers.
12.4 SUSPENSION BY THE DEVELOPMENT MANAGER
AND OWNER FOR CONVENIENCE
12.4.1 The Development Manager or 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 Development Manager or Owner
may determine to be appropriate for its convenience,
however the dates for Substantial Completion and Final
Completion shall be adjusted.
12.4.2 Adjustments caused by suspension, delay
or interruption shall be basis for increases in the GMP,
compensation for Preconstruction Phase Services, the
Design/Builder's Fee and/or the dates of Substantial
Completion and Final Completion as and when appropriate
pursuant to this Agreement. No adjustment shall be made
if the Design/Builder is or otherwise would have been
responsible for the suspension, delay or interruption of the
Work, or if another provision of this Agreement is applied
to render an equitable adjustment.
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 shall endeavor to
settle the dispute by mediation under the Construction
Industry Mediation Rules of the American Arbitration
Association before recourse to arbitration. Issues to be
mediated are subject to the exceptions in Paragraph 13.2
for arbitration. The location of the mediation shall be the
location of the Project unless the parties mutually agree
otherwise. Once one party files a request for mediation
with the other contracting party and with the American
Arbitration Association, the parties agree to conclude such
mediation within sixty (60) days of the filing of the
request.
13.2 AGREEMENT TO ARBITRATE Any controversy or
claim arising out of or relating to this Agreement or its
breach not resolved by mediation, except for claims which
have been waived in writing either previous to or at the
time of final payment, shall be decided by arbitration in
accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association then in
effect unless the parties mutually agree otherwise.
13.3 NOTICE OF DEMAND A written demand for
arbitration shall be filed with the American Arbitration
Association and the other party to this Agreement within a
reasonable time after the dispute or claim has arisen, but in
no event after the applicable statute of limitations for a
legal or equitable proceeding would have run.
13.4 AWARD The arbitration award shall be final.
Judgment upon the award may be confirmed in any court
having jurisdiction.
13.5 WORK CONTINUANCE AND PAYMENT Unless
otherwise agreed in writing, the Design/Builder shall
continue the Work and maintain the approved schedules
during any arbitration proceedings. If the Design/Builder
continues to perform, the Development Manager and
Owner shall continue to make payments in accordance
with this Agreement.
13.6 MULTIPARTY PROCEEDING The parties agree
that all parties necessary to resolve a claim shall be parties
to the same arbitration proceeding. Appropriate provisions
shall be included in all other contracts relating to the Work
to provide for the consolidation of arbitrations.
13.7 COST OF DISPUTE RESOLUTION The prevailing
party in any dispute arising out of or relating to this
Agreement or its breach that is resolved by arbitration or
litigation shall be entitled to recover from the other party
reasonable attorney' s fees, costs, and expense incurred
by the prevailing party in connection with such arbitration
or litigation.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 ASSIGNMENT Neither the Development
Manager, nor the Owner, nor the Design/Builder shall
assign its interest in this Agreement without the written
consent of the other, except as to the assignment of
proceeds.
14.2 GOVERNING LAW This Agreement shall be
governed by the laws in the State of Texas.
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
either party to insist, in any one or more instances, on the
performance of any of the terms, covenants or conditions
of this Agreement, or to exercise of its rights, shall not be
construed as a waiver or relinquishment of such term,
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Page 24
9/6/2007 9:03:38 AM9/2007 12A9i58 PP
14.7 COUNTERPARTS This Agreement may be executed
in counterparts, each of which shall be considered an original
but all of which together shall constitute one agreement.
ARTICLE 15
EXISTING CONTRACT DOCUMENTS
This Agreement is entered into as of the date entered in Article 1.
WNW!A'1►
ATTEST:
ATTEST:
ATTEST:
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
Rob Allison, Assistant City Manager
Development Services
The Contract Documents in existence at the time of execution
of this Agreement are as follows: The Master Development
Agreement, dated February 24, 2006, among Owner,
Development Manager, et al., as amended. Design/Builder
was not a party to the Master Development Agreement.
DEVELOPMENT MANAGER:
GARFIELD TRAU VELOI
BY:
PRINT NAME:
DESIGN/BUILDER:
TURNER LEE LEWIS
BY:
PRINT NAME:
PRINT TITLE: -
BY:
PRINT NAME:
PRINT TITLE: -
OWNER:
CITY OF LUBBOCK TEXAS
BY:
PRINT NAME: David A. Miller
PRINTTITLE: Mayor
APPROVED AS TO FORM:
Linda L. Chamales, Senior Attorney
Office Practice Section
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Page 23
9/5/2007 4:49:03 P
covenant, condition or right with respect to further
performance.
14.5 TITLES The title given to the Articles of this
Agreement are for ease of reference only and shall not be
relied upon or cited for any other purpose.
14.6 PARTNERING The Development Manager and/or
Owner may elect in its sole option, to encourage the
foundation of a partnering relationship with the
Design/Builder and its Subcontractors. This partnering
relationship will be structured to draw on the strengths of
each party to identify and achieve reciprocal goals.
14.7 COUNTERPARTS This Agreement may be executed
in counterparts, each of which shall be considered an
This Agreement is entered into as of the date entered in Article 1.
ATTEST:
original but all of which together shall constitute one
agreement.
ARTICLE 15
EXISTING CONTRACT DOCUMENTS
The Contract Documents in existence at the time of
execution of this Agreement are as follows: The Master
Development Agreement, dated February 24, 2006, among
Owner, Development Manager, at at., as amended.
Design/Builder was not a party to the Master Development
Agreement.
DEVELOPMENT MANAGER
GARFIELD TRAUB DEVELOPMENT LLC
BY:
PRINT NAME
PRINT TITLE-
DESIGN/BUILDER:
ITLE
DESIGN/BUILDER:
TURNER LEE LEWIS r
ATTEST: BY:��V
PRINT TITLE, f��7
ATTEST:AA /�C BY: � a � • L�•p[ a- _
�� PRINT NAME, L A 5
PRINT TITLE - VPS GIA
OWNER
CITY OF LUBBOCK,
BB�TEXAS
ATTEST: -R*I.
Rebecca Garza, City Secretary PRINT NAME Davi A. Miller
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Page 25
9/6/2007 9:03:38 AMW&2097 ":" PM
PRINT TITLE Mayor
APPROVED AS TO CONTENT: APPROVED AS TO FORM:
DevelopmentR&,Alfisoar!l�� Manager
Linda L. Chamales, Senior Attorney
Office Practice Section
Solely for the purpose of agreeing to the obligations of Hotel Owner set forth in Article 3.4 "Hazardous Material' and in Section
4.1.2.1, and the indemnity and insurance -related rights and obligations of Articles 11.1.1, 11.1.4, 11.2.1, 11.5.1, 11.5.3, 11.6.1 and
11.7.1, and not otherwise, Hotel Owner is executing this Agreement.
ATTEST:
HOTEL OWNER:
1859 MANAGEMENT PARTNERS, LP
By: 1859 MANAGEMENT PARTNERS GP, LLC
PRINT NAME:
PRINT TITLE:
Design -Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Page
ATTEST:
ATTEST:
ATTEST:
GARFIELD TRAUB DEVELOPMENT LLC
BY:
PRINT NAME:
PRINT TITLE:
DESIGN/BUILDER
TURNER LEE LEWIS
BY:
PRINT NAME:
PRINT TITLE: -
BY:
PRINT NAME:
PRINT TITLE: -
OWNER:
CITY OF LUBBOCK, TEXAS
ATTEST: BY:
Rebecca Garza, City Secretary PRINT NAME: David A. Miller
PRINT TITLE: Mayor
APPROVED AS TO CONTENT: APPROVED AS TO FORM:
Rob Allison, Assistant City Manager Linda L. Chamaies, Senior Attorney
Development Services Office Practice Section
Solely for the purpose of agreeing to the obligations of Hotel Owner set forth in Article 3.4 "Hazardous Material' and in Section
4.1.2.1, and the indemnity and insurance -related rights and obligations of Articles 11.1.1, 11.1.4, 11.2.1, 11.5.1, 11.5.3, 11.6.1 and
11.7.1, and not otherwise, Hotel Owner is executing this Agreement.
is---------------------
DEBORAH S. CLIFFORD
Notary Public, State of TexasMy Commission Expires 06.01-08
ATTEST: ki . >c,I
HOTEL OWNER:
1859 MANAGEMENT PARTNERS, LP
By: 185
0
Design -Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Page
Owner/Development Manager/Design-Builder Resolution No. 2007-RO437
Lubbock Hotel
EXHIBIT "A"
DESIGN/BUILDER'S SCHEDULE OF STAFF RATES
TITLE HOURLY RATES ($)
2006/2007 2007/2008 2008/2009
Operations Manager
$188/hour
$196/hour
$ 204/hour
Project Executive
$152/hour
$158/hour
$ 164/hour
Project Manager
$121/hour
$126/hour
$ 131/hour
Senior Superintendent
$112/hour
$116/hour
$ 121 /hour
Superintendent
$96/hour
$100/hour
$104/hour
Assistant Superintendent
$77/hour
$80/hour
$ 83/hour
Senior Engineer
$112/hour
$116/hour
$121 /hour
Engineer
$96/hour
$100/hour
$104/hour
Assistant Engineer
$77/hour
$80/hour
$83/hour
Cost/Scheduling Engineer
$77/hour
$80/hour
$83/hour
Preconstruction Manager
$147/hour
$153/hour
$159/hour
Senior Estimator
$116/hour
$121/hour
$126/hour
Estimator
$96/hour
$100/hour
$104/hour
MEP Manager
$116/hour
$121/hour
$126/hour
Purchasing Manager
$147/hour
$153/hour
$159/hour
Purchasing Agent
$96/hour
$100/hour
$104/hour
Safety Director
$116/hour
$121/hour
$126/hour
Safety Engineer
$77/hour
$80/hour
$83/hour
Accountant
$58/hour
$60/hour
$62/hour
Administrative/Clerical
$47/hour
$49/hour
$51/hour
Community Affairs
$77/hour
$80/hour
$83/hour
Labor Manager
$77/hour
$80/hour
$83/hour
Carpenter Foreman*
$47/hour
$49hour
$51/hour
Center Journeyman*
$41/hour
$43/hour
$45/hour
Concrete Foreman*
$47/hour
$49/hour
$51/hour
Concrete Journeyman *
$41 /hour $43/hour $45hour
Painter Foreman*
$41/hour
$43/hour
$45hour
Painter Journeyman*
$35/hour
$36/hour
$37/hour
Laborer Foreman*
$35/hour
$36/hour
$37/hour
Laborer Journeyman*
$28/hour
$29/hour
$30/hour
Elevator Operator*
$28/hour
$29/hour
$30/hour
The above rates include wages, taxes, fringe benefits, vacation, training and DPE. The
hours per month per person will not exceed 172 without approval of the Owner and/or
Development Manager.
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Exhibit "A" - Page 1
9/6/2007 9:03:38 AM9"200' 12!49:58 PM
Owner/Development Manager/Design-Builder
Lubbock Hotel
These rates are for straight time (40 hours/week). Overtime and double time will be
charged at 1.5 and 2.0 times these rates. respectively.
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Exhibit "A" - Page 2
9/6/2007 9:03:38 AMgF3, -.-;� —:tea P-;"
Owner/Development Manager/Design-Builder Resolution No. 2007-RO437
Lubbock Hotel
EXHIBIT "B"
INSURANCE REQUIREMENTS OF DESIGN/BUILDER
(With Wrap-up Program)
Design/Builder shall not commence Work under this Agreement until it has obtained insurance in compliance to the following
requirements:
COVERAGE AND LIMITS
Design/Builder, at its own expense, will purchase and maintain (with companies licensed to do business in the
State of Texas and having rates of Best's Insurance Guide A/VII, or better) insurance coverages and amounts
as set forth below:
TYPE
AMOUNT
OTHER REQUIREMENTS
1. Workers'
Texas Statutory Limits
1. Waiver of subrogation in favor of Owner
Compensation and
$1,000,000 Bodily Injury by
and Development Manager.
Employer's Liability
Accident - Each Accident
2. No "alternative" fomes of coverage will
$1,000,000 Bodily Injury by
be permitted.
Disease - Policy Limit
$1,000,000 Bodily Injury by
Disease - Each Employee
2. Commercial
$1,000,000 per occurrence
1. ISO form CG 0001 0196, or
General Liability
$1,000,000 general aggregate
equivalent ('98 edition)
(Occurrence Basis)
$12,500,000 product -completed
2. Owner and Development Manager
operations aggregate limit.
will be named as "additional
$2,000,000 personal and advertising
insureds" on ISO Form CG 2026
injury limit
1185, or equivalent
$50,000 fire legal liability
3. Waiver of subrogation in favor of
$5,000 medical expense limit
Owner and Development Manager
4. Deletion of exclusions for liability
assumed under contract (personal and
advertising injury)
5. No modification which would make
Design/Builder's policy excess over or
contributory with Owner and
Development Manager's liability
insurance
6. Completed operations insurance
will be maintained in identical
coverage, form and amount, including
required endorsements, for at least 2
years following the completion of the
Services
7. Defense will be provided as an
additional benefit and not included
within the limit of liability
3. Business
Combined single limit for bodily
1. ISO form CA 0001 1001, or
Automobile Liability
injury and property damage of
equivalent
(Occurrence Basis)
$1,000,000 per occurrence or
2. Owner and Development Manager
its equivalent.
will be named as "additional
insureds"
3. Waiver of subrogation in favor of
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Exhibit "B" - Page 1
9/6/2007 9:03:38 AM^'°'^^^' "
Owner/Development Manager/Design-Builder
Lubbock Hotel
♦ OTHER REQUIREMENTS
Any aggregate limit which is reduced below 75% of the limit required by this Contract because of losses
incurred must be reinstated by Design/Builder. No deductible or self-insured retention in excess of $100,000
without the prior written approval of Owner and Development Manager.
� EVIDENCE OF INSURANCE REQUIRED BEFORE WORK BEGINS
Design/Builder shall not commence any Services of any kind under this Contract until all insurance
requirements contained in this Exhibit C have been provided and complied with, and until a Certificate of
Insurance has been provided to Owner and Development Manager. Evidence to be delivered to Owner and
Development Manager prior to commencing operations at the site and at least 5 days prior to the expiration of
current policies. The "ACORD Form 26-S Certificates of Liability Insurance" [or its equivalent] or another pre -
approved substitute is the required form in all cases where reference is made herein to a "Certificate of
Insurance". The Certificate of Insurance must specify the additional insured status and waivers of
subrogation, state the amounts of all deductibles and self-insured retentions, set forth notice requirements for
cancellation, material change, or non -renewal of insurance and be accompanied by copies of all required
endorsements. If requested in writing by Owner or Development Manager, Design/Builder shall provide Owner
and Development Manager a copy of any or all insurance policies or endorsement required under this Exhibit
♦ INSURANCE REQUIRED FOR CONTRACT TIME
Any and all insurance required by this Exhibit C shall be maintained during the entire Contract Time, including
any extensions thereto.
♦ MANDATORY 30 -DAY NOTICE OF CANCELLATION
Owner and Development Manager shall, without exception, be given not less than 30 -days notice prior to
cancellation for other than non-payment of premium. Non-payment of premium shall require ten-day notice of
cancellation.
♦ ADDITIONAL INSURED STATUS
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Exhibit 'B" - Page 2
9/6/2007 9:03:38 AM^ 512GO;l 12!49!88 nen
Owner and Development Manager
4. Includes owned, hired and non -
owned vehicles
4. Umbrella Liability
$25,000,000
1. Written on an umbrella basis above
(Occurrence Basis)
the coverage referenced above
2. Same inception and expiration dates as
commercial general liability insurance
5. Professional
$2,000,000 per occurrence
1. Turner will confirm professional
Liability
liability in proposed limits and terms
(Occurrence Basis)
will be provided by the A&E
2. Maintain for a period of not less
than 2 years following the end of the
Term.
3. Waiver of subrogation in favor of
Owner and Development Manager.
6. Employee
$100,000 per loss
1. Turner has in place Employee
Dishonesty
Dishonesty coverage with appropriate
limits.
♦ OTHER REQUIREMENTS
Any aggregate limit which is reduced below 75% of the limit required by this Contract because of losses
incurred must be reinstated by Design/Builder. No deductible or self-insured retention in excess of $100,000
without the prior written approval of Owner and Development Manager.
� EVIDENCE OF INSURANCE REQUIRED BEFORE WORK BEGINS
Design/Builder shall not commence any Services of any kind under this Contract until all insurance
requirements contained in this Exhibit C have been provided and complied with, and until a Certificate of
Insurance has been provided to Owner and Development Manager. Evidence to be delivered to Owner and
Development Manager prior to commencing operations at the site and at least 5 days prior to the expiration of
current policies. The "ACORD Form 26-S Certificates of Liability Insurance" [or its equivalent] or another pre -
approved substitute is the required form in all cases where reference is made herein to a "Certificate of
Insurance". The Certificate of Insurance must specify the additional insured status and waivers of
subrogation, state the amounts of all deductibles and self-insured retentions, set forth notice requirements for
cancellation, material change, or non -renewal of insurance and be accompanied by copies of all required
endorsements. If requested in writing by Owner or Development Manager, Design/Builder shall provide Owner
and Development Manager a copy of any or all insurance policies or endorsement required under this Exhibit
♦ INSURANCE REQUIRED FOR CONTRACT TIME
Any and all insurance required by this Exhibit C shall be maintained during the entire Contract Time, including
any extensions thereto.
♦ MANDATORY 30 -DAY NOTICE OF CANCELLATION
Owner and Development Manager shall, without exception, be given not less than 30 -days notice prior to
cancellation for other than non-payment of premium. Non-payment of premium shall require ten-day notice of
cancellation.
♦ ADDITIONAL INSURED STATUS
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Exhibit 'B" - Page 2
9/6/2007 9:03:38 AM^ 512GO;l 12!49!88 nen
Owner/Development Manager/Design-Builder
Lubbock Hotel
Each insurance policy described in this Exhibit "B" permitting an additional insured endorsement shall be
endorsed, using an additional insured endorsement, to name as additional insureds Owner and Development
Manager and each of its partners, officers, directors, members, owners, and employees.
The coverage afforded the additional insureds shall be primary insurance. If any additional insureds have other
insurance applicable to the loss, such other insurance shall be on an excess or contingent basis and shall
apply only to such additional insureds. To the extent that naming additional insureds beyond those listed
above causes Design/Builder to incur an additional cost, the cost of adding such additional insureds shall be
borne by Owner and Development Manager.
Design Build Agreement and General Conditions Between Owner, Development Manager
And Design/Builder Exhibit "B" - Page 3
9/6/2007 9:03:38 AM95'2007 12!49!58