BAYTOWN MUNICIPAL DEVELOPMENT 1. a. DISTRICT SPECIAL MEETING Meeting Date: 09/27/2018 Subject: Design Build Agreement Prepared for: Ron Bottoms, City Management Prepared by: Karen Horner, Legal

Information ITEM Consider a resolution authorizing Design-Build Agreement and General Conditions with Garfield Public/Private LLC, and DPR Construction, Inc., for the Baytown Conference Center Hotel Project.

PREFACE This proposed ordinance authorizes a Design-Build Agreement and General Conditions with Garfield Public/Private LLC, and DPR Construction, Inc., for the Baytown Conference Center and Hotel Project where the basis of payment is the cost of the Work plus a fee with a guaranteed maximum price option.

The overall project includes the design and construction of a coordinated unified development consisting of the following three components: 1. City Facilities Component-- the public, city-owned meeting and ballroom facilities, common areas and related infrastructure including furniture, fixtures, and equipment associated with such facilities; 2. Hotel Component -- an upscale, multistory 208 room full service hotel; and 3. Parking Facilities -- a City-owned surface parking lot with approximately 324 public parking spaces, together with the adjoining 1.92 acre marina parking site.

RECOMMENDATION Staff recommends approval.

Attachments Resolution - DBA Exhibit A - Hotel DBA A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT AUTHORIZING THE PRESIDENT TO EXECUTE A DESIGN-BUILD AGREEMENT WITH GARFIELD PUBLIC/PRIVATE LLC, AND DPR CONSTRUCTION, INC., FOR THE BAYTOWN CONVENTION CENTER HOTEL PROJECT; AUTHORIZING PAYMENT OF AN AMOUNT IN ACCORDANCE THEREWITH; MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.

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BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT:

Section 1: That the Board of Directors of the Baytown Municipal Development District hereby finds that the expenditures authorized herein are for improvements, which satisfy the purposes for which the funds can be expended pursuant to Chapter 377 of the Texas Local Government Code and/or Section 3888.102 of the Special District Local Laws Code. All required findings pursuant thereto are hereby declared to have been made and adopted as findings of the Board of Directors.

Section 2: That the Board of Directors of the Baytown Municipal Development District hereby authorizes the President to execute the Design-Build Agreement with Garfield Public/Private LLC, and DPR Construction, Inc., for the Baytown Convention Center Hotel Project. A copy of said agreement is attached hereto as Exhibit “A,” and incorporated herein for all intents and purposes.

Section 3: That the Board of Directors of the Baytown Municipal Development District hereby authorizes the payment of an amount in accordance with the agreement referenced in Section 2 hereof.

Section 4: This resolution shall take effect immediately from and after its passage by the Board of Directors of the Baytown Municipal Development District.

INTRODUCED, READ and PASSED by the affirmative vote of the Board of Directors of the Baytown Municipal Development District, this the 27th day of September, 2018.

______STEPHEN H. DONCARLOS, President ATTEST:

______LETICIA BRYSCH, Assistant Secretary

APPROVED AS TO FORM:

______IGNACIO RAMIREZ, SR., General Counsel

\\cobfs01\legal\Karen\Files\City Council\Municipal Development District\Resolutions\2018\September\MDD Resolution - DBA 09272018.doc Exhibit "A"

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 AMENDMENT (Initial Proposed GMP) AMENDMENT (Final GMP)

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 this _____ day of ______in the year 2018, by and among the

"DEVELOPMENT MANAGER"

Garfield Public/Private LLC 14785 Preston Road Suite 480 Dallas, TX 75254 and the

"DESIGN/BUILDER" DPR Construction, a General Partnership 3200 Southwest Freeway Suite 1550 Houston, Texas 77027

and the

"OWNER" Baytown Municipal Development District, a political subdivision of the State of Texas and the City of Baytown 2401 Market Street Baytown, TX 77520 for services in connection with the following

"PROJECT"

The Project is the design and construction of a coordinated unified development consisting of three components: (1) public, city-owned meeting, ballroom and convention center facilities, common areas and related (collectively the "City Facilities" or the “City Facilities Component”), (2) an upscale, multistory 200 room minimum full service hotel (the "Hotel" or “Hotel Component”), and (3) a City-owned surface parking lot with approximately 324 public parking spaces, together with the adjoining 1.92 acre marina parking site of approximately 230 spaces (which is subject to an existing parking agreement), (collectively described as "Parking Facilities"), the footprints of which are identified in Annex 1. The Project will be located upon the real property as described in Annex 2 (the “Site”). The services to design and construct the Project, and each of its components, are set forth in two separate design-build agreements, one for the City Facilities and Parking Facilities Components and this Agreement for the Hotel Component. Each agreement sets forth the details of the various rights and obligations among the Development Manager, the Design/Builder and the appropriate owner as to the design and construction of the City Facilities and Parking Facilities Components (in the City agreement) and the Hotel Component (in this Agreement). The

Hotel site is subject to a ground lease between the City of Baytown, as landlord, and Owner, as tenant (the "Ground Lease").

Notice to the parties shall be given at the above addresses.

AMENDMENT NO. ___, (INITIAL PROPOSED GMP) DATED DESIGN-BUILD AGREEMENT BETWEEN OWNER, DEVELOPMENT MANAGER & DESIGN/BUILDER

Pursuant to Section 3.2 of the Agreement dated ______, among the Development Manager, Garfield Public/Private LLC and the Owner, Baytown Municipal Development District, a political subdivision of the State of Texas and the City of Baytown and the Design/Builder, DPR Construction, a General Partnership for the Hotel Component of the Project, the Development Manager, Owner and Design/Builder desire to establish a GMP for the Work. Therefore, the Development Manager, Owner and Design/Builder agree as follows.

ARTICLE 1. INITIAL PROPOSED GUARANTEED MAXIMUM PRICE

The Design/Builder's initial proposed GMP for the Work, including the Cost of the Work as defined in Article 8 and the Design/Builder's Fee as set forth in Article 7, is dollars ($ ).

The Design/Builder guarantees that the Cost of the Work plus the Design/Builder's fee will not exceed this initial GMP as defined in the Agreement, subject to additions and deductions by Change Orders, as provided in the Agreement. The initial GMP is based on the following documents, which shall become attachments to this Amendment:

Attachment Description No. 1 Detailed itemization of the GMP including the estimated Cost of the Work, organized by specification division, with all design costs and construction trade categories, labor, materials and equipment for the Work, Design/Builder's general conditions costs, Construction Contingency, insurance and bonding costs, Subcontractor default insurance costs, professional staff estimates, and other items that comprise the GMP. 2 A list of the drawings and specifications, including addenda, which were used in preparation of the GMP. 3 A listing of the Design/Builder's Assumptions and Clarifications in preparation of the GMP. 4 A list of allowances approved by Owner. 5 A list of alternates approved by Owner. 6 A list of unit prices. 7 A statement of Additional Services, if any; 8 The Project Schedule upon which the GMP is based particularly showing the inclusion

of the Hotel Component construction within the overall Project Schedule 9 Confirmation of the various coverages to be supplied under the insurance program and the limits of the policies as required in Article 11.

ARTICLE 2. DATES OF COMPLETION

As of the date of this Amendment, the following dates apply:

Substantial Completion of the Hotel Component shall be achieved within _____ Days after issuance of the approved "Notice to Proceed", subject to approved Change Orders as defined in the Agreement or as specified in Section 6.2 of the Agreement.

Final Completion of the Hotel Component shall be achieved within 30 Days of the date of Substantial Completion of the Project subject to approved Change Orders as defined in the Agreement, or as specified in Section 6.2.2 of the Agreement.

Amendment (continued)

This Amendment is subject to acceptance by Development Manager and Owner, in accordance with and subject to Section 3.2.7(a) of the Agreement. The final GMP and final dates of Substantial and Final Completion will be prepared subject to Section 3.2.7(a) of the Agreement and may only be adjusted in accordance with Articles 6 and 9 of the Agreement, as applicable.

This Amendment is entered into as of , .

DEVELOPMENT MANAGER:

Garfield Public/Private LLC

By: ______

ATTEST: PRINT NAME:

PRINT TITLE:

DESIGN/BUILDER:

DPR Construction, a General Partnership ATTEST: BY:

PRINT NAME:

PRINT TITLE:

OWNER:

Baytown Municipal Development District

ATTEST: ______BY:

PRINT NAME:

PRINT TITLE: ______

AMENDMENT NO. ___, (FINAL GMP) DATED ______DESIGN-BUILD AGREEMENT BETWEEN OWNER, DEVELOPMENT MANAGER & DESIGN/BUILDER

Pursuant to Section 3.2 of the Agreement dated ______, among the Development Manager, Garfield Public/Private LLC and the Owner, Baytown Municipal Development District and the Design/Builder, DPR Construction, a General Partnership for the Hotel Component of the Project, the Development Manager, Owner and Design/Builder desire to establish a GMP for the Work. Therefore, the Development Manager, Owner and Design/Builder agree as follows.

ARTICLE 1. FINAL GUARANTEED MAXIMUM PRICE

The Design/Builder's Final GMP for the Work, including the Cost of the Work as defined in Article 8 and the Design/Builder's Fee as set forth in Article 7, is dollars ($ ).

The Design/Builder guarantees that the Cost of the Work plus the Design/Builder's fee will not exceed the Final GMP as defined in the Agreement, subject to additions and deductions by Change Orders, as provided in the Agreement. The Final GMP is based on the following documents, which shall become attachments to this Amendment:

Attachment Description No. 1 Detailed itemization of the GMP including the estimated Cost of the Work, organized by specification division, with all design costs and construction trade categories, labor, materials and equipment for the Work, Design/Builder's general conditions costs, Construction Contingency, insurance and bonding costs, Subcontractor default insurance costs, professional staff estimates, and other items that comprise the GMP. 2 A list of the drawings and specifications, including addenda, which were used in preparation of the GMP. 3 A listing of the Design/Builder's Assumptions and Clarifications in preparation of the GMP. 4 A list of allowances approved by Owner. 5 A list of alternates approved by Owner. 6 A list of unit prices. 7 A statement of Additional Services, if any; 8 The Project Schedule upon which the GMP is based particularly showing the inclusion of the Hotel Component construction within the overall Project Schedule

9 Confirmation of the various coverages to be supplied under the insurance program and the limits of the policies as required in Article 11.

ARTICLE 2. DATES OF COMPLETION

As of the date of this Amendment, the following dates apply:

Substantial Completion of the Hotel shall be achieved within _____ Days after issuance of the approved "Notice to Proceed", subject to approved Change Orders as defined in the Agreement or as specified in Section 6.2 of the Agreement.

Final Completion of the Hotel shall be achieved within 30 Days of the date of Substantial Completion of the Project subject to approved Change Orders as defined in the Agreement, or as specified in Section 6.2.2 of the Agreement.

Amendment (continued)

This Amendment is subject to acceptance by Development Manager and Owner, after which the Final GMP and dates of Substantial and Final Completion may only be adjusted, if at all, in accordance with Articles 6 and 9 of the Agreement, as applicable.

This Amendment is entered into as of , .

DEVELOPMENT MANAGER:

Garfield Public/Private LLC

By: ______

ATTEST: PRINT NAME:

PRINT TITLE:

DESIGN/BUILDER:

DPR Construction, a General Partnership ATTEST: BY:

PRINT NAME:

PRINT TITLE:

OWNER:

Baytown Municipal Development District

ATTEST: ______BY:

PRINT NAME:

PRINT TITLE: ______

of the Agreement or completion of the Project, or any ARTICLE 1 combination thereof. DEFINITIONS 1.8 "City" means the City of Baytown, County of Harris, 1.1 "Applicable Laws" means all laws, statutes, State of Texas. ordinances, building codes, regulations, rules, orders and resolutions of all national, administrative, state, local, 1.8.1 “City DBA” shall mean the Design/Build municipal, and other governing bodies relating to the Agreement between the City and Design/Builder related to Project or to the performance of the Services or the Work. the City Facilities and Parking Facilities Components of the Project. 1.2 "Architect" means collectively Boka Powell LLC and any successor architect firm that Design/Builder may 1.9 "City Facilities Component" means the City retain in connection with the Project; provided, however, Facilities portion of the Project as defined in the "Project" any successor architect is subject to prior approval of paragraph on page 1 of this Agreement. Development Manager and Owner and further provided any consultants or subconsultants of the Architect are 1.10 "Construction Contingency" means a sum, included subject to the prior approval of Development Manager in the GMP, established by the Design/Builder and and Owner. approved by Development Manager and Owner, such approval not to be unreasonably withheld, for use by the 1.3 “Available Moneys” means (i) the “Hotel Design/Builder (with Development Manager's and Development Phase Financing,” as defined in the Master Owner's approval) to reimburse for costs which are Development Agreement, but only to the extent such properly reimbursable as a Cost of the Work approved in funds are designated as being available for payment of advance by Owner (for not only the Hotel Component, but expenses under this Agreement during the Design Phase the City Facilities Component and Parking Facilities and not otherwise applied or applicable to any other Component of the Project as well) but are not the basis of purpose thereunder; and (ii) amounts that are being held a Change Order as further provided in Section 3.2.3. by the Bond Trustee in funds and accounts under the Bond Indenture designated thereunder for this Agreement 1.11 "Construction Fund For Hotel" means the fund during the Construction Phase and not otherwise applied established by Owner for the sole use of funding the or applicable to any other purpose thereunder. Design/Builder's GMP for the Hotel Component, the Construction Contingency as defined in Section 1.10 and 1.4 "Bond Indenture" means collectively the master an amount for changes in the Work as contemplated in trust indenture and supplemental trust indentures to be Section 1.44. The parties acknowledge that the entered into between Owner and the Bond Trustee Construction Fund for Hotel will be financed solely with providing for the issuance of the Hotel Bonds and the use Available Moneys. of the proceeds thereof to provide the Construction Fund for Hotel. 1.12 "Construction Phase" means that phase of the work commencing as described in Section 3.3.1 to construct the 1.5 "Bonds" or “Hotel Bonds” means the Owner’s Hotel Hotel Component of the Project. Construction Phase Financing issued pursuant to the Bond Indenture for the purpose of financing the Hotel 1.13 "Construction Phase Services" means Services Component. rendered during the Construction Phase of the Hotel Component. 1.6 "Bond Trustee" means a national bank or trust company (designated by Owner) acting under a Trust 1.14 "Contract Documents" means this Agreement, any Indenture for the Bonds. amendments to this Agreement, drawings, specifications and other documents referenced in Section 2.4. 1.7 "Change Order" means a written order to Design/Builder executed by the Owner and Development 1.14.1 “Contract Time” means the period of time Manager in accordance with the Agreement authorizing afforded by this Agreement for the Substantial and directing an addition to, deletion from, or adjustment Completion of the Work and the period of time afforded or revision to the requirements of the Contract by this Agreement for the Final Completion of Work (as Documents, or an adjustment to the compensation each of these terms are defined herein), as such times payable to Design/Builder, or to the time for performance may be adjusted in accordance with the terms and provisions of this Agreement.

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1.15 "Contract Value" means the total Cost of the Work, subsection 6.3.1.1 to compensate for delays due to General Conditions, contingencies and Design/Builder's weather events during the construction of the Project. An Fee but does not include amounts for the Architect's Extreme Weather delay shall be measured as a delay only Services. if it directly affects the critical path in accordance with the monthly updated Construction Schedule and exceeds 1.16 "Cost of the Work" means all costs necessarily those Days already contained in the Construction incurred in the proper performance of the Work, including Schedule. without limitation, all costs set forth in Section 8.1 and 8.2, costs for all labor, materials, supplies, equipment, 1.27 "FF&E" means furniture, fixture and equipment taxes, fees, expenses and other items or amounts purchased to be used in the Hotel Component. incurred or owing under the contracts entered into pursuant to this Design/Build Agreement. 1.28 “Final Completion” means the completion of all Work required by, and in strict compliance with, the 1.17 "Day" means calendar day. Contract Documents for the Project, including: (i) all work and punch list items have been inspected and 1.18 “Design/Builder” means DPR Construction, a satisfactorily completed as determined by the Owner; (ii) General Partnership. consent of sureties have been obtained; (iii) start-up, testing, training, regulatory approvals from all applicable 1.19 “Design/Builder’s Representative” means the authorities have been obtained; (iv) all close-out individual named by Design/Builder to act on documents, including warranty and operation manuals, Design/Builder's behalf in the administration of this have been received by Owner; (v) all requirements for Agreement. Final Payment have been met; (vi) all preparations necessary to successfully operate and maintain the 1.20 "Design Phase" means the phase of the Project Project have occurred; (vii) a Certificate of Occupancy for commencing upon the Effective Date of this Agreement 100% of the Hotel Component has been received by the and ending upon completion by the Architect of the Owner; and (viii) the governmental bodies of both the City Construction Documents and execution of the Final GMP and Owner have accepted all three components of the Amendment for the Hotel Component of the Project. Project.

1.21 "Design Phase Services" means all Services 1.29 "Final Completion Date" is that certain date set required during the Design Phase of the Hotel forth in the Final GMP Amendment and in Section 6.2 as Component. the date the Design/Builder agrees to achieve Final Completion of the Project as some may be extended in accordance with this Agreement and the City DBA. 1.22 "Design/Builder's Fee" as described in Article 7 and calculated in accordance therewith, includes both the Design/Builder's fee associated with the Design Phase and 1.30 "Force Majeure" means acts of nature (including the Design/Builder's fee associated with the Construction fire, flood, earthquake, storm, hurricane, or other natural Phase. disaster), civil war, terrorism, national labor strikes or lockouts, unusual consequential delay in deliveries, 1.23 "Development Manager" means Garfield unavoidable casualties or other adverse events beyond Public/Private LLC. the Design/Builder's control which have an actual, negative effect on the Project. 1.24 "Development Manager's Representative" means the individual named by Development Manager to act on 1.31 "GMP" means the Guaranteed Maximum Price for Development Manager's behalf in the administration of the Hotel Component of the Project, as defined and this Agreement, initially, the person named in Section 4.4 subsequently established in the Final GMP Amendment, hereof. and includes the Design/Builder's Fee as defined in Section 1.22 and the Cost of the Work as defined in Article 7 and Article 8, as well as the Construction Contingency. 1.25 "Effective Date" means the date of execution of this Design-Build Agreement by all Parties. 1.32 "Hotel Component" means the Hotel portion of the Project as defined in the "Project" paragraph on page 1 of 1.26 "Extreme Weather" means those weather delays that exceed the number of Days contained in the this Agreement. Construction Schedule designated in accordance with

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1.33 "Hotel Development Agreement" or “HDA” means 1.41 "Owner's Representative" means any one or more that certain development management agreement by and of the individuals named by Owner to act on Owner’s among Development Manager and Owner relating to the behalf in the administration of the Agreement, initially Hotel Component, as may be amended from time to time. those persons named in Section 4.4 hereof.

1.34 "Intellectual Property" means all intellectual 1.42 "Parking Facilities Component" means the Parking property rights of any kind, including patent rights Facilities as defined in the Project paragraph on page 1. (whether design or utility), copyrights, trademark and service mark rights, trade dress rights, utility model 1.43 "Program" means the initial description of the rights, moral (personal) rights, rights of publicity, trade Development Manager's objectives for the Project, secret rights, industrial design rights, and website and including budgetary and time criteria, space requirements internet domain rights. The Owner shall own all and relationships, flexibility and expandability Intellectual Property related to the Hotel Component. requirements, special equipment and systems, and site requirements. 1.35 "Master Development Agreement" or “MDA” means that certain development agreement, dated ____, 1.44 "Project Contingency" means an amount or 2018, among the City, Development Manager and Owner amounts set forth in the Hotel Budget, outside of the relating to the Project, as may be amended from time to GMP, as defined in the Master Development Agreement time. Terms utilized in this Agreement shall be defined in which will be reallocated to cover Owner approved Section 1.2 of the Master Development Agreement, a changes upon receipt of documented Change Orders copy of which Section 1.2 is attached hereto as Exhibit C pursuant to Article 9 hereof . and made a part hereof, unless otherwise specifically indicated. 1.45 "Related Agreements" means the Master Development Agreement, Bond Indenture (and related tax 1.36 "Notice to Proceed" means that certain written agreement), any construction disbursing agreement, notice issued by the Owner to the Development Manager Parking Facilities Agreement, City Facilities Lease and Design/Builder pursuant to Section 3.3.1 notifying the Agreement, Hotel Development Agreement, City Facilities Design/Builder to proceed with the Work. and Parking Facilities Design/Build Agreement, the Hotel Operating Agreement and any and all other agreements, 1.37 "Operator" means a Separate Contractor who documents or instruments entered into by Development enters into a contract with the Owner or Development Manager, City and/or Owner in connection with the Manager to operate the Hotel Component of the Project. Project. The parties anticipate the initial Operator will be Interstate Hotels & Resorts, Inc. 1.46 "Revised Substantial Completion Date" or "Revised SC Date" means the new date established for Substantial 1.37.1 “OS&E” means the Owner's operating supplies Completion of the Project resulting from extensions of and equipment purchased to be used in the Hotel time permitted by this Agreement and the City DBA which Component. The OS&E is not included in the Work. extend the date of Substantial Completion for either the City Facilities Component or the Hotel Component. 1.38 "Owner" means the Baytown Municipal Development District, a political subdivision of the State 1.46.1 “Schedule of Work” (sometimes herein referred to of Texas and of the City. as the “Construction Schedule”) is described in Section 3.3.4. 1.39 "Owner's Directed Contingency Reserve" shall be the remaining balance, if any, of the Project Contingency 1.47 "Separate Contractor" means any contractor, but released to Owner upon the final completion of the Work not including Design/Builder or the Subcontractors, with to be held in a reserve account for use by the Owner, in its whom Owner, City or Development Manager enters into a sole discretion. Any uncommitted balance of the Owner’s direct contract for the performance of services not Directed Contingency Reserve remaining at the Final included in the GMP. Completion Date shall be handled in the same manner as any uncommitted balance in the Construction Fund For 1.48 "Services" means those services, functions, roles, Hotel. responsibilities, obligations and duties required of Design/Builder pursuant to the terms of the Contract 1.40 Intentionally Omitted. Documents.

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1.49 Intentionally Omitted. supplies required by the Contract Documents for the purpose of achieving the desired and essential functions 1.50 "Subcontractor" means any person or entity having of the Project at the lowest Life Cycle Cost consistent with a direct contract or purchase order with Design/Builder for required and necessary performance, reliability, quality the performance or supply of all or any portion of the and safety. Value Engineering is to be performed during Work required by the Contract Documents or the supply the Design Phase as a part of the Services required to of any materials, services, equipment or installation reach a GMP for the Project acceptable to all parties. "Life services required by the Contract Documents. The term Cycle Cost" means the sum of all costs of the Project over Subcontractor does not include the Architect or any its useful life, and includes the cost of design, separate subcontractor or Separate Contractor employed construction, acquisition, operation, maintenance, and by the Development Manager or Owner. The term salvage/resale value. Subcontractor shall also mean the Design/Builder in regard to any portion of the Work self-performed by the 1.57 "Warranties" means warranties obtained from the Design/Builder as permitted in this Agreement. Design/Builder, Subcontractors, and Sub-Subcontractors of the Design-Builder pursuant to this Agreement, 1.51 "Subcontractor Default Insurance" or “SDI” means together with any and all manufacturer's warranties in the insurance coverage for the full and faithful performance name of or to be assigned to the Owner covering the work of Design/Builder's Subcontractors as described in performed or materials furnished to the Hotel Component Section 3.2.10. of the Project or any subcomponent portion thereof by the Design/Builder. 1.52 "Subcontracts" means the contracts between Design/Builder and any Subcontractor but does not 1.58 "Work" means any and all labor, supervision, include those with the Architect. Development Manager supplies, fixtures, vehicles, equipment, services, tools, and Owner acknowledge that some of the subcontracts materials, computers, utilities, items, documents and will be fixed price or lump sum agreements and will be other items required by the Contract Documents for the treated as such in any audit pursuant to Section 8.3. Hotel Component, including design, to be performed or supplied, including all services set forth in Section 2.5, all 1.53 "Substantial Completion" means that stage of construction and permitting required to render the Hotel completion of the Project when construction is sufficiently Component, and every subcomponent thereof, complete in accordance with the Contract Documents so operational and usable for its intended purpose, provided, that the Owner, Development Manager, City or any however, responsibility for the acquisition, storage and Separate Contractor can occupy or utilize the Project for installation of the FF&E shall not be included in the Work. the use for which it is intended and a temporary or final certificate of occupancy or its equivalent and any other ARTICLE 2 permits and orders necessary for occupancy of 100% of GENERAL PROVISIONS the City Facilities rooms, the Hotel rooms, the Parking Facilities spaces and the public spaces, and all of the back 2.1 TEAM RELATIONSHIP The Owner, Development of house spaces for which Design/Builder is responsible Manager and the Design/Builder agree to proceed with under the Contract Documents. Only punch list items and the Hotel Component of the Project on the basis of good closeout documents are to remain, which Design/Builder faith and fair dealing, and shall take such actions that are will diligently pursue until complete. reasonably necessary to perform this Agreement in an economical and timely manner, including consideration of 1.54 “Substantial Completion Date" or "SC Date" is that design modifications and alternative materials or certain date set forth in the Final GMP Amendment as the equipment that will permit the Work to be constructed date the Design/Builder agrees to achieve Substantial within the Guaranteed Maximum Price (GMP) and by the Completion of the Project and includes the Revised Substantial Completion and Final Completion Dates. The Substantial Completion Date for the Project, if any. Design/Builder shall cause the Architect and all design professionals to design the Work in accordance with the 1.55 “Sub-Subcontractor” means any person or entity GMP; however, the Design/Builder may take reasonable which has a subcontract or purchase order with a actions necessary to maintain the GMP including minor Subcontractor to perform or provide any portion of the changes to the drawings or specifications for a particular Subcontractor’s work. material, device, system after the GMP is accepted subject to the consent of the Owner and Development Manager. The Design/Builder may also utilize Value Engineering, 1.56 "Value Engineering" means the detailed analysis of systems, equipment, materials, services, facilities, and subject to the consent and approval of the Development

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Manager and Owner and alternative systems analysis so and liability thereunder, (iii) identify the Owner and long as the original intent of the systems or components Development Manager as intended third-party within the Project is maintained. The Design/Builder beneficiaries thereof entitled to enforce their rights agrees to procure the architectural and engineering thereunder in their own name; (iv) list the Owner and the services set forth below, and to furnish construction and Development Manager along with their officers and administration of the Work. Nothing in this Agreement or employees as additional insureds on policies excluding any other Contract Document shall be construed or Professional Liability and Workers Compensation; and (v) interpreted to establish a fiduciary relationship between otherwise comply with the other requirements of this the Design/Builder and the Owner or any other party. Agreement. The Architect may not be changed by the Design/Builder without prior written consent of the Owner Owner and Development Manager agree that in executing and Development Manager. this Agreement and selecting a design/build procedure to design and build the Project, the Owner and the 2.3 EXTENT OF AGREEMENT This Agreement and the Development Manager have complied with the Contract Documents are solely for the benefit of the requirements of TEXAS GOVERNMENT CODE Section parties, represent the entire and integrated agreement 2269.301 et seq. between the parties, and supersede all prior negotiations, representations or agreements, either written or oral. 2.2 ARCHITECT Architectural and engineering services shall be procured from licensed, independent design 2.4 CONTRACT DOCUMENTS The Contract professionals retained by the Design/Builder or furnished Documents consist of: by licensed employees of the Design/Builder. The Owner, Development Manager and the City have selected, and .1 The Sections of the Master Development Design/Builder has approved and accepted, BOKA Powell Agreement, attached hereto as Exhibit C and LLC as the architect or engineer as set forth in the Master made a part hereof, including any amendments Development Agreement on the basis of demonstrated or modifications thereto; competence and qualifications, and as to the City Facilities Component, as provided by TEXAS .2 The Sections of the Hotel Development GOVERNMENT CODE Section 2254.004. The person or Agreement, attached hereto as Exhibit C and entity providing architectural and engineering services is made a part hereof, including any including any referred to as the Architect. The Architect is an amendments or modifications thereto; independent design professional. The architectural and engineering services shall be procured pursuant to a .3 Change Orders and written amendments to separate agreement between the Design/Builder and the this Agreement signed by the Development Architect subject to the approval of the Owner, which Manager, Owner, Design/Builder and, where approval shall not be unreasonably withheld. applicable, Architect, including Final GMP Design/Builder shall contractually obligate Architect to Amendment incorporating the Design/Builder's indemnify the Owner and Development Manager GMP and its attachments; consistent with Texas law and to maintain insurance for the benefit of the Owner and Development Manager and .4 this Agreement and all Exhibits attached their officers and employees as additional insureds hereto; (where applicable), in each case in form and substance not less than is customary for a project with a similar .5 the most current Contract Documents scope as the Work. Furthermore, it is agreed that the approved by the Development Manager and Owner has reviewed the insurance of the Architect and Owner pursuant to Sections 3.1.4.1, 3.1.5 or 3.1.6; finds it to be acceptable. It is understood that the Owner, Development Manager, and Design/Builder are third party .6 the information provided by the Owner beneficiaries under the insurance coverages to be pursuant to Section 4.1.2.1; provided by the Architect, but no other third-party beneficiary relationship is created herein. All contracts .7 the Program, a copy of which is attached relating to the architectural and engineering services of hereto in Exhibit D and made a part hereof, the Work shall contain provisions that: (i) indemnify the pursuant to Section 4.1.1. Owner and Development Manager, and their officers and employees against any costs or liabilities thereunder to .8 the City Design Build Agreement including the extent allowed by Texas law, (ii) acknowledge that any amendments or modifications thereto. Owner and Development Manager have no obligations

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In case of any inconsistency, conflict or ambiguity among update reflecting the information then available. If the the Contract Documents, the Contract Documents shall preliminary cost estimate or any update exceeds the Hotel govern in the order in which they are listed above. budget, the Design/Builder shall make written recommendations to the Owner and Development 2.5 WORK The Work includes Design Phase Services Manager. procured in accordance with Section 3.1, the labor, materials, equipment and other costs and Design/Builder' 3.1.4 SCHEDULE OF FEES AND EXPENSES Within ten Fee set forth in the GMP Proposal provided in accordance (10) Days of the execution of this Agreement, with Section 3.2, the Construction Phase Services Design/Builder shall submit for the Development provided in accordance with Section 3.3, Additional Manager's and Owner's approval a schedule of Services that may be provided in accordance with Section anticipated fees, expenses and costs to be incurred by 3.8, and other services which are necessary to complete Design/Builder and its design team, including Architect, the Hotel Component of the Project in accordance with any engineer and any subconsultants, relating to design and reasonably inferable from the Contract Documents. or preconstruction services to be incurred prior to the Initial GMP Amendment (the "Pre-IGMP Budget Schedule”). A copy of the Pre-IGMP Budget Schedule is ARTICLE 3 attached hereto as Exhibit E and made a part hereof. Prior DESIGN/BUILDER'S RESPONSIBILITIES to the Effective Date the Design/Builder shall not incur any cost to be reimbursed as part of the Cost of the Work The Design/Builder shall be responsible for procuring the for the Design Phase, except as Owner may specifically design and for the construction of the Work consistent authorize in writing. Payment of applications for payment with this Agreement and the Contract Documents. The will be made in accordance with the Pre-IGMP Budget Design/Builder shall exercise reasonable skill and Schedule and Section 10.1.2. judgment in the performance of its Services, but does not warrant or guarantee schedules and estimates other than those that are part of the Final GMP Amendment. The 3.1.4.1 SCHEMATIC DESIGN DOCUMENTS The Design/Builder's representative is Nick Abay. Design/Builder shall submit for the Development Manager and Owner's written approval Schematic Design 3.1 DESIGN PHASE SERVICES Documents, based on the Program and other relevant information. Schematic Design Documents shall include 3.1.1 PRELIMINARY EVALUATION The Design/Builder drawings, outline specifications and other conceptual has provided a preliminary evaluation of the feasibility of documents illustrating the Hotel Component's basic the Hotel Component of the Project based on the Program elements, scale, and their relationship to the Site. One set and other relevant information. of these documents shall be furnished to each of the Development Manager and Owner. The Design/Builder 3.1.2 PRELIMINARY SCHEDULE The Design/Builder shall shall update the preliminary schedule and cost estimate prepare a preliminary schedule of the Work for based on the Schematic Design Documents. Development Manager and Owner's written approval. The schedule shall show the activities of the Development 3.1.5 DESIGN DEVELOPMENT DOCUMENTS The Manager, Owner, Architect and Design/Builder necessary Design/Builder shall submit for the Development Manager to meet the Project completion requirements. The and Owner's written approval Design Development schedule shall be updated periodically with the level of Documents based on the approved Schematic Design detail for each schedule update reflecting the information Documents. The Design Development Documents shall then available. If an update indicates that the end date of further define the Hotel Component of the Project a previously approved schedule will not be met, the including drawings and outline specifications fixing and Design/Builder shall recommend corrective action to the describing the Hotel Component's size and character, and Owner and Development Manager in writing. other appropriate elements incorporating the structural, architectural, mechanical and electrical systems for the 3.1.3 PRELIMINARY ESTIMATE When sufficient overall Project. One set of these documents shall be information has been identified, the Design/Builder shall furnished to each of the Development Manager and prepare for the Owner and Development Manager's Owner. The Design/Builder shall update the schedule and written approval a preliminary cost estimate for the Hotel cost estimate based on the Design Development Component utilizing area, volume or similar conceptual Documents. estimating techniques. The cost estimate shall be updated periodically with the level of detail for each estimate

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3.1.6 CONSTRUCTION DOCUMENTS/GMP DOCUMENTS construction, repair or alteration of something other than The Design/Builder shall submit for the Development the Project. Manager and Owner's written approval Construction Documents and/or GMP Documents based on the 3.1.8 COORDINATION OF CONSTRUCTION The approved Design Development Documents for the Hotel structures constituting the components of the Project, viz. Component of the Project. These Documents shall set the City Facilities, the Parking Facilities and the Hotel, will forth in detail the requirements for construction of the be connected with one another as part of an integral Work, and shall consist of drawings and specifications whole. Accordingly, the Architect, and many of the based upon codes, laws or regulations enacted at the time Subcontractors and Sub-Subcontractors, will be providing of their preparation. Construction shall be in accordance services on more than one component of the Project and with these approved Construction/GMP Documents in certain situations a Subcontract may include work on subject to changes in the Work provided for in this more than one component of the Project. In these Agreement. One set of these documents shall be situations the Design/Builder will allocate the cost of any furnished to each of the Development Manager and such Subcontract in accordance with any written Owner prior to commencement of construction. The GMP instructions provided by Development Manager and the shall be established based on these documents. Owner that accurately reflect the cost of the services performed for that portion of the Project. If no such 3.1.7 OWNERSHIP OF DOCUMENTS written instructions are timely provided by Development Manager or Owner, Design/Builder will allocate the cost of 3.1.7.1 It is mutually agreed that all materials prepared any such Subcontract among the applicable structures by Design/Builder and all Subcontractors and based on Design/Builder's best estimate as to the value of Sub-Subcontractors under this Agreement in connection the services or material provided for each structure. with the Hotel Component of the Project will become the Design/Builder shall provide Development Manager, property of Owner upon payment for the materials by Owner and City with its reason and justification of each Owner. Immediately upon payment for the materials by Subcontract allocation with the applicable Application for Owner, Owner will be entitled to, and Design/Builder will Payment. deliver to Owner, all data, drawings, specifications, reports, estimates, summaries and other such materials 3.1.9 MODEL ROOMS AND EXTERIOR MOCK UP as may have been prepared or accumulated to date by COMPLETION The model rooms for the Hotel Component Design/Builder and all Subcontractors and and exterior skin mock up for the Project will be Sub-Subcontractors in performing this Agreement, which completed and delivered by Design-Builder on time in is not Design/Builder's privileged information, as defined accordance with the scheduled date for delivery of each by law, or Design/Builder's personnel information. It is such item. Such scheduled dates shall be agreed upon by expressly understood and agreed that if this Agreement is Design Builder and Development Manager on or before terminated, the Design/Builder must tender all such the date of the Final GMP Amendment to this Agreement. materials within ten (10) Days of receipt of payment. Such dates shall be scheduled to occur early in the Construction Phase to allow for timely design and 3.1.7.2 Additionally, it is agreed that Owner, Development construction adjustments, Hotel Brand approval, and Manager and Design/Builder intend this to be a contract Value Engineering changes to the model rooms and/or for services and each considers the products and results exterior skin, as applicable. In the event either or both of of the services to be rendered by Design/Builder under such schedule dates are delayed without any approval by this Agreement in connection with the Project to be a Development Manager and Owner for any such delay, work made for hire. Design/Builder acknowledges and each Day of unexcused delay for each of the items shall agrees that this work product (and all rights in this be automatically deducted from the number of days for Agreement, including, without limitations, Intellectual any excused delays previously, or otherwise to be, Property) (hereinafter "Work Product") belongs to and will granted to Design/Builder in accordance with Section 6.3 be the sole and exclusive property of Owner. Owner shall of this Agreement. have the right to use such Work Product in connection with the construction of, and any repairs or alterations to, 3.2 GUARANTEED MAXIMUM PRICE the Project. Owner releases the Architect, the Design/Builder and the Development Manager from any 3.2.1 When the drawings and specifications are in a claims or damages resulting from any material alteration condition that (with the agreement of Owner, of the Work Product by Owner in connection with the Development Manager and Design/Builder) will enable Project which is not approved by Design/Builder and the the Design/Builder to accurately price the drawings, (but Architect and/or the use of such Work Product in the no later than 101 Days from the Effective Date), unless

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such time is amended by agreement of the parties), for the City Facilities Component) upon which the Design/Builder shall propose the GMP for the Hotel proposed GMP is based, and the Schedule of Component of the Project, which shall be the sum of the Work upon which these dates are based. An estimated Cost of the Work as defined in Article 8 and the extension of the Contract Time to perform the Design/Builder's Fee as defined in Article 7. In addition, Work under this Agreement shall also constitute the GMP shall include an amount for the Construction an extension of the Contract Time to perform the Contingency. The GMP is subject to modification only as work under City DBA and an extension of the provided in Article 9. Contract Time to perform the work under the City DBA shall constitute an extension of the Contract 3.2.2 Intentionally Omitted. Time under this Agreement;

3.2.3 The GMP shall include amounts for approval by .5 schedule of applicable alternate prices; Development Manager and Owner for the Construction Contingency for all Components of the Project. Since the .6 schedule of applicable unit prices, including, Owner, in accordance with the Master Development without limitation, the finish costs per square foot Agreement, has covenanted to fund, solely out of of typical guest rooms, suites, guest room Available Moneys, any GMP contract costs for both the corridors and public areas; City Facilities Component and the Parking Facilities Component in excess of the City's available bond .7 the results of Design/Builder’s Value Engineering proceeds, (subject to the conditions and limitations analysis of each component of the Project; contained in Section 3.1.1(e) and 11.1.3 of the Master Development Agreement which sections are set forth in .8 statement of Additional Services included, if any; Exhibit C attached hereto and made a part hereof) the and Construction Contingency has been removed from the GMP under the City DBA and transferred to the GMP .9 the time limit for acceptance of the GMP proposal under this Agreement. In the event any exigencies or which shall not be less than 90 Days. unforeseen costs with regard to the Project were to arise which result in costs that are properly reimbursable with 3.2.5 The Design/Builder shall meet with the Development Manager's and Owner's approval as a Cost Development Manager and Owner to review the GMP of the Work but are not the basis for a Change Order, proposal. In the event that the Development Manager or Design Builder will look solely to the Construction Owner discovers any inconsistencies or inaccuracies in Contingency as included in the GMP under this the information presented, the Development Manager or Agreement. Owner shall promptly give written notice to the Design/Builder, who shall make appropriate adjustments 3.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The to the GMP, its basis or both. Design/Builder shall include with the GMP proposal a written statement of the basis of the proposal, which shall 3.2.6 Unless the Development Manager and Owner include but not be limited to: accept the GMP proposal in writing on or before the date specified in the proposal for such acceptance and so .1 a list of the drawings and specifications, notify the Design/Builder, the GMP proposal shall not be including all addenda, which were used in effective. preparation of the GMP proposal; 3.2.7 .2 a list of allowances by item and amount and a statement of their basis; a) If the Design/Builder with the approval of Owner and Development Manager were to .3 a list of the assumptions, clarifications and elect to begin work based on partially complete exclusions made by the Design/Builder in the Construction Documents (which are sufficiently preparation of the GMP proposal to supplement complete to obtain a building permit for the pricing and the information contained in the contemplated portion of the Work), Owner and drawings and specifications; Development Manager may accept the Initial GMP proposal as an initial GMP (“IGMP”) as .4 the dates for Hotel Substantial Completion and described in an Initial GMP Amendment to this Final Completion (which dates shall be the same Agreement, recognizing that such IGMP is for Substantial Completion and Final Completion based on incomplete Construction Documents,

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but in Design/Builder’s professional opinion limitation, the Construction Documents, requested by said Construction Documents are sufficiently Owner, Owner shall pay the Design/Builder all costs complete to satisfy paragraph 3.2.1 for the incurred to the date of termination, supported by Design/Builder to provide an accurate IGMP. appropriate documentation, subject to Owner’s approval, Development Manager will promptly give as full payment for all Work and Services performed by Design/Builder its comments and conditions the Design/Builder to that point, which shall be the regarding the initial GMP. Design/Builder will exclusive and total amount due the Design/Builder in work with the Architect and its consultants to connection with the Agreement and the termination perform Value Engineering exercises and to thereof pursuant to this Section; or complete the final Construction Documents and receive updated pricing on the items to be .2 direct the Design/Builder to continue to included in the Final GMP Proposal. The participate in Value Engineering exercises so that the Design/Builder will obligate the Architect to Design/Builder can submit another GMP proposal at a complete the final Construction Documents in reduced cost, in which case, Owner shall decide whether conformance with the Program as part of its to accept the revised GMP proposal or terminate this basic services. Changes in design or Agreement and shall have the right to proceed or documentation required to bring an issued terminate as to that revised GMP proposal as set forth in Construction Document in conformance with this Section. Unless otherwise agreed by the the scope of the Program shall be considered Design/Builder, the Design/Builder shall not be required to part of Design/Builder’s basic services perform Value Engineering exercises to attempt to get the hereunder, at no additional cost to the Owner. GMP within the budget for more than thirty (30) Days In no circumstance, other than Owner directed after the GMP Proposal has been rejected. The change(s), will the amount of the GMP in the Design/Builder shall not be required to perform Value Final GMP proposal exceed the amount of the Engineering exercises if the amount of the GMP is within IGMP in the IGMP proposal submitted by the the budget. Design/Builder nor will the dates of Substantial Completion or Final Completion as set forth in the IGMP proposal be modified in Prior to the issuance of the Final GMP Amendment and a the Final GMP proposal unless approved in written Notice to Proceed with the Construction Phase, writing by Owner and Development Manager. the Design/Builder shall not incur any cost to be reimbursed as part of the Cost of the Work for the b) Upon acceptance by the Development Manager Construction Phase, except as Owner may specifically and Owner of the Final GMP Proposal, the GMP authorize in writing. and its basis shall be set forth in Final GMP Amendment to this Agreement. The Final GMP, 3.2.9 SALES TAX The Owner represents that it qualifies the date of Substantial Completion and of Final for exemption from state and local sales tax pursuant to Completion shall be subject to modification the provisions of Article 20.4 (F) of the Texas Limited only by Change Order as provided in Articles 6 Sales, Excise and Use Tax Act. The Design/Builder, shall and 9 or as otherwise provided in this be responsible for all taxes applicable to the project which Agreement. shall be included in the GMP, and reimbursed as a Cost of the Work. 3.2.8 Rejection of the GMP Proposal. If Owner in its discretion, is unwilling to approve the Design/Builder's 3.2.10 PAYMENT, PERFORMANCE, AND Final GMP proposal and enter into a Final GMP MAINTENANCE BONDS Amendment, Owner may, at Owner's election, with a) The Design/Builder shall furnish separate assistance from the Development Manager and with performance, maintenance and payment bonds, notice to the City, take one or more of the following each in the sum of one hundred percent (100%) of actions: the total contract price, in such forms as the Owner may approve and with sureties as the Owner may .1 terminate this Agreement by providing the approve, for this purpose, guaranteeing faithful Design/Builder with notice of termination. Promptly after performance of the contract, faithful performance such termination, receipt of final conditional releases of work during the warranty period and faithful from the Design/Builder, its Subcontractors, payment to all persons supplying labor and Sub-Subcontractors, material suppliers, and Architect, materials or furnishing any equipment in the and the receipt of all documents, including, without execution of the Agreement.

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building permit has been issued for the Work, (d) all b) All performance, payment, and maintenance bonds zoning, platting and other governmental regulations required herein shall remain in effect throughout associated with the Hotel site have been satisfied, (e) the term of this Agreement and for a period of one Development Manager’s and Owner’s approval and (1) year after the completion of the work and shall acceptance of the Design/Builder’s initial GMP or the final be extended for any warranty work to cover the GMP, as applicable and (f) the City has issued or warranty period. concurrently issues a Notice to Proceed for the Design/Builder to proceed with the Construction Phase c) If at any time during the execution of this Services under the City DBA. Agreement or in the required period thereafter, the bond or bonds become invalid or ineffective for any 3.3.2 In order to complete the Work, the Design/Builder reason, the Design/Builder shall promptly supply shall provide all necessary construction supervision, within ten (10) Days such other bond or bonds, inspection, construction equipment, labor, materials, which bond or bonds shall assure performance, tools, and subcontracted items as part of the Cost of the maintenance or payment as required. Such Work. Owner shall provide for all construction materials replacement bond(s) shall be issued by a surety testing by an independent third-party testing firm, acceptable to the Owner. acceptable to Owner’s Representative. The Owner shall provide Development Manager with a copy of all test d) Subject to Article 9, the Design/Builder shall make results. Design/Builder shall provide services related to such changes and alterations as the Owner may see training of maintenance personnel, assisting with the fit in the work herein contemplated, or any part commissioning, startup of systems and the adjusting and thereof without affecting the validity of this balancing of systems. Agreement and any work accompanying bond. If such changes or alterations diminish the quantity of 3.3.3 The Design/Builder shall give all notices and the work to be done, they shall not constitute the comply with all laws and ordinances which govern the basis for any claim for damages or anticipated proper performance of the Work, including noise profits on the work that may be dispensed with. ordinances and construction work hours as detailed in the City ordinances; provided, however, in the event the City enacts any law or ordinance, following the date of 3.2.11 SUBCONTRACTOR DEFAULT INSURANCE In execution of this Agreement, that causes the Cost of the addition to and not in lieu of the Design/Builder’s Work to increase, Owner acknowledges and agrees that payment and performance bonds, the Design/Builder shall the GMP will be adjusted appropriately. obtain Subcontractor Default Insurance to cover in one hundred percent (100%) of the subcontracted volume. 3.3.4 The Design/Builder shall prepare and submit a The cost of the Subcontractor Default Insurance is Schedule of Work for the Development Manager's and included in the GMP and shall be 1.4% of the applicable Owner's written approval. This schedule shall indicate the subcontracted volume attributed to the Hotel Component. dates for the start and completion of the various stages of the construction of the Hotel Component and the overall 3.3 CONSTRUCTION PHASE SERVICES Project including the dates when information and approvals are required from the Development Manager or 3.3.1 The Construction Phase of the Hotel Component Owner. It shall be revised as required by the conditions of will commence upon the issuance by the Owner to the the Work. In addition, if the schedule changes as a result Development Manager and Design/Builder of a written of an extension of time that is permitted under this Notice to Proceed with construction of the Hotel Agreement or under the City DBA, the schedule will be Component. This Notice to Proceed shall not be issuable revised showing the extension of time. An extension of until the following items have been obtained or time granted under this Agreement shall constitute an established; (a) all offsite utilities are developed and/or extension of time for the Design/Builder to Substantially relocated to allow construction of the Hotel Component of Complete the Work under the City DBA and an extension the Project to proceed in accordance with the Contract of time granted under the City DBA shall constitute an Documents, (b) the Construction Fund has been extension of time for the Design/Builder to Substantially established and evidence that such funding has been Complete the Work under this Agreement. allocated solely for use on the Hotel Component and to cover any excess funds as may be required in accordance 3.3.5 The Design/Builder shall secure the building and with Section 3.1.1 of the Master Development Agreement any other permits necessary for the construction of the (with written confirmation of same from the Owner), (c) a Hotel Component and the Project. The Design/Builder will

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not, however, be required to pay for any permit fees for written reports to the Development Manager and Owner permits to be issued by the City, which will be waived in on the progress of the Work and the Project overall as conjunction with this Agreement for the Hotel agreed to by the Development Manager, Owner and Component. Design/Builder. The Design/Builder's Representative shall meet at least weekly with Development Manager's 3.3.6 The Design/Builder shall take necessary precautions Representative and Owner’s Representative at the Site to for the safety of its employees on the Project, including, review the progress of the Work and any substantive but not limited to, the Hotel Component, and shall comply issues that could delay or otherwise negatively impact the with all applicable provisions of federal, state and Work and the Project overall. municipal safety laws to prevent accidents or injury to persons on, about or adjacent to the Project Site. The 3.3.9 The Design/Builder has developed a system of cost Design/Builder, directly or through its Subcontractors and reporting for the Work and the Project overall, including Sub-Subcontrctors, shall erect and properly maintain at regular monitoring of actual costs for activities in all times, as required by the conditions and progress of progress and estimates for uncompleted tasks and the Work, necessary safeguards for the protection of proposed changes in the Work and/or Project. workers and the public. The Design/Builder, however, Design/Builder shall make available to Development shall not be responsible for the elimination or abatement Manager the software that Design/Builder uses to of safety hazards created or otherwise resulting from manage the Project and shall train Development work at the Project Site carried on by the Development Manager's personnel in the use of the Bluebeam studio Manager and/or Owner or its employees, agents, software for file sharing and document markups. Separate Contractors or tenants. The Development Design/Builder will share the appropriate project cost Manager and Owner agree to cause their employees, reports generated by CMIC (Design/Builder Cost agents, Separate Contractors and tenants to abide by and Management Software) as requested and appropriate as fully adhere to all applicable provisions of federal, state required by this Agreement. Development Manager and and municipal safety laws and regulations. The above Owner acknowledge and agree that neither Development provision shall not relieve Subcontractors or Manager nor Owner shall have any rights whatsoever in Sub-Subcontractors of their responsibility for the safety of and to such software and shall only use same with regard persons or property in the performance of their work, nor to the Project. The Owner and Development Manager will for compliance with all applicable provisions of relevant advise the Design/Builder promptly if the system laws. The Design/Builder shall coordinate the Work on developed by Design/Builder is not acceptable for use the City Facilities and the Parking Facilities with the work under the terms and provisions of this Agreement. on the Hotel in such a manner that construction phase services for all portions of the Project shall be handled in 3.3.10 At all times, the Design/Builder shall maintain the all respects for safety purposes as if all components of the Site free from debris and waste materials resulting from Project were one project. the Work. At the completion of the Work, the Design/Builder shall remove from the premises all 3.3.7 The Design/Builder shall keep such full and detailed construction equipment, tools, surplus materials, waste accounts as may be necessary for proper financial materials and debris. management under this Agreement. Without cost to the Development Manager and Owner, the Design/Builder 3.3.11 The Design/Builder shall provide space within a shall allow Development Manager and Owner the right at construction trailer to house the Owner's designated field any time and from time to time, during normal business representative, and the Development Manager's hours, to have access to any or all of Design/Builder's designated field representative for the construction records, books, correspondence, instructions, drawings, period. The Design/Builder shall provide electricity, receipts, vouchers, memoranda and similar data relating regular cleaning, and tables and chairs. The Development to the Project and this Agreement. Design/Builder agrees Manager and Owner will provide their own equipment to make such records available to Development Manager and supplies to carry out their work. at a convenient location at the Project in Baytown, Texas, upon 48 hours’ notice from Development Manager or 3.4 HAZARDOUS MATERIAL Owner, as the case may be. The Design/Builder shall preserve all such records for a period of three years after 3.4.1 A Hazardous Material is any substance or material the final payment or longer, where required by law. identified now or in the future as hazardous under any federal, state or local law or regulation, or any other 3.3.8 The Design/Builder shall provide a copy of the daily substance or material which may be considered jobsite reports to the Development Manager and monthly hazardous or otherwise subject to statutory or regulatory

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requirements governing handling, disposal and/or employees of each of them, from and against any and all clean-up. The Design/Builder shall not be obligated to claims, damages, losses, costs and expenses including, commence or continue Work until any Hazardous Material but not limited to, reasonable attorney's fees, cost and discovered at the Site and existing at the Site prior to expenses whether direct or indirect incurred in Notice to Proceed ("Pre-Existing Hazardous Material") has connection with litigation, mediation or arbitration been removed, rendered or determined to be harmless by arising out of or resulting from Hazardous Substances at the Owner, as certified by an independent testing the property brought on site and improperly handled by laboratory selected by Owner and approved by the the Design/Builder, its Subcontractors, appropriate government agency, provided that in making Subsubcontractors and material suppliers, the Architect such a determination, Owner may rely conclusively and and the agents and employees of each of them. without inquiry upon the independent testing laboratory. 3.4.8 The terms of this Section 3.4 shall survive the 3.4.2 If after the commencement of the Work, completion of the Work under this Agreement and/or any Pre-Existing Hazardous Material is discovered at the Site, termination of this Agreement. the Design/Builder shall be entitled to immediately stop Work in the affected area, and the Design/Builder shall 3.5 ROYALTIES, PATENTS AND COPYRIGHTS The report the condition to the Owner and, if required, the Design/Builder shall pay all royalties and license fees government agency with jurisdiction. which may be due on the inclusion of any patented or copyrighted materials, methods or systems selected by 3.4.3 The Design/Builder shall not be required to perform the Design/Builder and incorporated in the Work. The any Work relating to or in the area of any Pre-Existing Design/Builder shall defend, indemnify and hold the Hazardous Material without written mutual agreement Development Manager and Owner , their employees, and among the parties. officers, harmless from all suits or claims for infringement of any patent rights or copyrights arising out of such 3.4.4 For any Pre-Existing Hazardous Material, the Owner selection. The Owner agrees to withdraw any request the shall be responsible for retaining an independent testing Owner may make for the inclusion of any materials, laboratory to determine the nature of the material methods, or systems in the Project, if Design/Builder, encountered and whether it is a Hazardous Material Architect or Development Manager has a reasonable requiring corrective measures and/or remedial action. belief that such materials, methods, and systems may Such measures shall be the sole responsibility of the violate a specific copyright or patent. Owner, and shall be performed at Owner's cost (payable solely from Available Moneys) in a manner minimizing any adverse effect upon the Work of the Design/Builder. The Design/Builder shall resume Work in the area affected 3.6 CONFIDENTIALITY Design/Builder shall treat as by any Pre-Existing Hazardous Material only after the confidential and not disclose to third persons, except Pre-Existing Hazardous Material has been removed or Subcontractors, Sub-Subcontractors, material suppliers, rendered harmless by Owner. the Architect and their respective employees and agents as is necessary for the performance of the Work, including 3.4.5 If the Design/Builder incurs additional costs and/or authorities having jurisdiction, or use for its own benefit is delayed due to the presence of Pre-Existing Hazardous any of Development Manager's and Owner's Material, the Design/Builder shall be entitled to an development strategies, confidential information, equitable adjustment in the GMP and/or the date of know-how, discoveries, production methods and the like Substantial Completion and Final Completion and such that may be disclosed and identified as confidential to additional costs shall be considered a Cost of the Work. Design/Builder by the Owner or the Development Manager in connection with the Work. Development 3.4.6 [Intentionally Omitted] Manager and Owner (to the extent permitted by Law) shall treat as confidential information, and not disclose to 3.4.7 Design/Builder shall be solely responsible for any any unnecessary third persons or parties, all of costs of testing or remediation of Hazardous Materials Design/Builder's estimating systems, historical and brought onto the Site by Design/Builder, Architect, any parameter cost data, or any other confidential information Subcontractor or Sub-Subcontractor or any other person that may be disclosed and identified as confidential to for whom the Design/Builder is responsible. To the fullest Development Manager and Owner by Design/Builder in extent permitted by law, Design/Builder shall defend, connection with the performance of this Agreement. indemnify and hold harmless, Development Manager and Notwithstanding the foregoing or anything to the contrary Owner and the agents, officers, directors, members and contained herein, the Design/Builder acknowledges that

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Owner is a governmental body subject to the TEXAS contained herein shall be construed as a waiver of PUBLIC INFORMATION ACT, TEXAS GOVERNMENT Owner's rights to enforce the full extent of any repose CODE CHAPTER 552, and Design/Builder acknowledges period under Texas law and nothing contained in this that this Agreement and confidential information received Agreement shall constitute the modification of a from Design/Builder, Owner and Development Manager contracted warranty period by any repose period under that is covered by this Agreement will be considered Texas law. public records and will be subject to disclosure in compliance with Texas law, except for information falling 3.7.2 Products, equipment, systems or materials within one of the exemptions therefrom. The Owner is incorporated in the Work at the direction of or upon the required to and shall comply with all Applicable Laws specific request of the Development Manager or Owner with regard to any records, documents and information over the written objection of Design/Builder shall not be related to Owner's dealings and relationship with the warranted by Design/Builder except to the extent of a Design/Builder. Nothing in this Agreement shall be manufacturer's warranty. deemed or construed as a limitation on Owner's discretion relating to compliance with Applicable Laws. 3.7.3 The Design/Builder shall secure required certificates Nevertheless, Owner will use reasonable efforts to of inspection, testing or approval for materials and provide notice as stated in Section 552.305 of TEXAS equipment incorporated into the Work and deliver them GOVERNMENT CODE within ten (10) business days after to the Owner. Design/Builder shall assign all receiving any request that seeks disclosure of information manufacturer and material supplier warranties to Owner provided by or concerning the Design/Builder but shall upon Final Completion. have no liability arising out of its failure to do so in a timely manner or at all. The Parties shall reasonably 3.7.4 The Design/Builder shall collect all written cooperate to determine whether or to what extent the warranties and equipment manuals and deliver them to requested information may be released without objection the Owner. and without seeking a written opinion of the Texas Attorney General. If the Design/Builder asks the Owner to 3.7.5 Design/Builder shall be responsible for seek an opinion from the Texas Attorney General raising commissioning the equipment and shall, with Operator’s any applicable exception to release of such information, assistance and in accordance with applicable Design/Builder shall be solely responsible to draft and specifications, train the Owner’s maintenance personnel submit to the Texas Attorney General the substantive including any Separate Contractors. The Design/Builder comments or arguments in support of such opinion shall direct the checkout of utilities and operations of request. The Design/Builder and the City will comply with systems and equipment for readiness, and assist in their the resulting opinion of the Texas Attorney General. initial start-up and testing. Design/Builder shall notify Development Manager promptly of each commissioning 3.7 WARRANTIES AND COMPLETION agent, if used, for such checkout, startup or testing.

3.7.1 Subject to the warranty periods described in this 3.7.6 Design/Builder shall immediately proceed to correct Section 3.7.1, the Design/Builder warrants that all Work rejected in accordance with this Agreement by materials and equipment furnished under the Development Manager or Owner as defective or failing to Construction Phase of this Agreement will be new, of conform to the Contract Documents, unless such Work is good quality, in conformance with the Contract accepted in accordance with other provisions of this Documents, and free from defective workmanship and Agreement. Design/Builder as a charge against the GMP materials. Warranties shall commence on the Substantial shall bear all costs and expenses associated with Completion Date of the Project and end one (1) year after correcting such rejected Work, including any additional the Substantial Completion Date. The Design/Builder testing and inspections and any fees and expenses of the agrees to correct any breach of this warranty and to Architect made necessary thereby, without adjustment to correct all construction performed under this Agreement the GMP, provided, however, the Design/Builder may use which proves to be defective in workmanship and the Construction Contingency to pay for any such costs materials prior to or within a period of one (1) year from and expenses with approval of the Owner and the Substantial Completion Date; including, without Development Manager. limitation, the mechanical, electrical, or plumbing workmanship and materials. All warranties required 3.7.7 Owner may, at its sole discretion, choose to accept beyond these periods shall be from manufacturers or defective or nonconforming Work. Such acceptance shall suppliers and, except those in the name of the Owner not be effective unless specifically and expressly stated in already, shall be assigned directly to the Owner. Nothing writing by Owner’s Representative. In such event, the

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GMP shall be reduced by the reasonable diminishment of 3.8 ADDITIONAL SERVICES The Design/Builder shall value of the Work as determined by a third-party value provide or procure the following Additional Services upon appraiser acceptable to both Owner and Design/Builder. the written request of Development Manager and Owner. Owner may request this appraisal prior to making its Any Additional Services approved by Owner and choice. The cost of such value appraiser shall be borne Development Manager shall define the extent of such by Design/Builder. If the unpaid portion of the GMP, if Additional Services and shall be identified in Attachment any, is insufficient to compensate Owner for the 7 of the Final GMP Amendment. Such Additional Services acceptance of defective or nonconforming Work, shall be considered a change in the Work, unless they are Design/Builder shall, upon written demand from Owner, specifically included in Attachment 7. Additional Services pay Owner any shortfall of compensation for accepting may include, but are not limited to, the following: defective or nonconforming Work. .1 Artistic models for any part of the Project or the 3.7.8 Work. THE WARRANTIES SET FORTH IN THIS SECTION 3.7 ARE SOLE, AND IN LIEU OF ANY AND ALL OTHER .2 Making revisions to the Schematic Design, WARRANTIES OF DESIGN/BUILDER RELATED TO THE Design Development, Construction Documents or WORK, WHETHER EXPRESS OR IMPLIED, AND documents forming the basis of the GMP after DESIGN/BUILDER DISCLAIMS ANY SUCH OTHER they have been approved by the Development WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY Manager and Owner, and which are due to AND ALL WARRANTIES OF MERCHANTABILITY AND causes beyond the control of the Design/Builder WARRANTIES ARISING FROM A COURSE OF DEALING and upon which the Design/Builder has relied and AND/OR USAGE OF TRADE. ANY OTHER STATEMENT has expended funds in accordance therewith. OF FACT OR DESCRIPTIONS EXPRESSED IN THE CONTRACT DOCUMENTS SHALL NOT BE DEEMED TO .3 Estimates, proposals, appraisals, consultations, CONSTITUTE A WARRANTY BY DESIGN/BUILDER OF negotiations and services in connection with the THE WORK OR ANY PART THEREOF, PROVIDED, repair or replacement of an insured loss. HOWEVER, THIS SECTION 3.7.8 DOES NOT WAIVE, RELEASE OR OTHERWISE LIMIT OR AFFECT ANY .4 The premium portion of overtime work for Hotel WARRANTY (i) BY DESIGN BUILDER AS EXPRESSLY SET Component ordered or caused by the FORTH IN THE CONTRACT DOCUMENTS, (ii) BY ANY Development Manager and Owner. SUBCONTRACTOR, SUB-SUBCONTRACTOR, SUPPLIER OR MANUFACTURER IN CONNECTION WITH THE WORK, .5 Services requested by the Development Manager WHICH WARRANTIES WILL MEET COMMERCIAL and Owner or required by the Work which are not MARKET STANDARDS AND THE STANDARDS OF HOTEL specified in the Contract Documents and which OPERATOR AND HOTEL FRANCHISOR, AS APPLICABLE, are not normally part of generally accepted AND WILL BE ASSIGNED TO OWNER IN ACCORDANCE design and construction practice. WITH THIS AGREEMENT, OR (iii) WHICH IS EXPRESSLY GRANTED TO OWNER, IN ITS CAPACITY AS A .6 Serving or preparing to serve as an expert POLITICAL SUBDIVISION OF THE STATE OF TEXAS, BY witness in connection with any proceeding, legal THE LAWS OF THE STATE OF TEXAS. or otherwise, regarding the Project.

3.7.9 Following the warranty period for correction or replacement of the Work as described above, ARTICLE 4 Design/Builder’s sole obligation for work found defective DEVELOPMENT MANAGER/OWNER'S RESPONSIBILITIES or not conforming shall be to assist Owner in its enforcement of any remedies available against the 4.1 INFORMATION AND SERVICES PROVIDED BY applicable Subcontractor, Sub-Subcontractor or supplier DEVELOPMENT MANAGER & OWNER or manufacturer in connection with such Work. Design/Builder shall provide all assistance reasonably 4.1.1 The Development Manager and the Owner shall required by Owner to enforce such remedies and shall provide full information in a timely manner regarding execute such documents, including an assignment of requirements for the Hotel Component of the Project, Design/Builder’s rights under any subcontract agreement including the Program and other relevant information. or purchase order, in order to allow Owner to enforce The Design/Builder recognizes that the Development such remedies Manager has entered into the Master Development Agreement and the Hotel Development Agreement and

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the Design/Builder has been provided with a fully executed copy of each. Owner and Development Manager 4.1.5 Any unforeseen condition or any evidence of agree if the terms of the Master Development Agreement dispute which may arise between the Owner and the or Hotel Development Agreement were changed in any Development Manager resulting in default of the way over time that would have a substantial effect on the Development Manager, shall not affect the Construction Schedule, scope and/or funding of the Hotel Design/Builder's right, if otherwise enforceable, to be paid Component of the Project, to execute a Change Order under this Agreement. with Design/Builder modifying this Agreement and the City DBA which will, if and as appropriate, adjust the GMP 4.2 DEVELOPMENT MANAGER’S/OWNER’S and/or extend the Contract Time to cover any and all RESPONSIBILITIES DURING DESIGN PHASE increased costs, expenses and additional fees required by such change and to cover any extension of the Contract 4.2.1 The Development Manager provided the Program Time resulting from such change. at the inception of the Design Phase and shall review and timely approve schedules, estimates, Schematic Design 4.1.2 The Owner shall provide: Documents, Design Development Documents and Construction Documents furnished during the Design .1 where currently available, general information Phase as set forth in Section 3.1, and the GMP proposal as describing the physical characteristics of the Site, set forth in Section 3.2. The Development Manager shall including surveys, site evaluations, legal seek written approval of these documents from the descriptions, existing conditions, subsurface and Owner, and shall be responsible to obtain approvals from environmental studies, reports and any other third party, tenant, or Separate Contractor for investigations; the definition of the wetland which approval is required. The Development Manager boundaries; and shall obtain the necessary approvals in a timely manner consistent with the Design/Builder's schedule for the .2 tax exempt certificate, if applicable. Hotel Component of the Project.

4.1.3 The Development Manager and Owner shall 4.3 DEVELOPMENT MANAGER'S/OWNER'S provide reasonable evidence satisfactory to the RESPONSIBILITIES DURING CONSTRUCTION Design/Builder and in compliance with Texas law, prior to PHASE commencing the Work, and during the progress of the Work, that sufficient funds are available and committed 4.3.1 The Development Manager and Owner shall review for the entire cost of the Hotel Component of the Project and approve the Schedule of the Work as set forth in (i.e. the Construction Fund), including an allowance for Section 3.3.4, in a timely manner. changes in the Work as may be approved in the course of the Work. Unless such reasonable evidence is provided, 4.3.2 If the Development Manager becomes aware of any the Design/Builder shall not be required to commence or error, omission or failure to meet the requirements of the continue the Work. Design/Builder shall be entitled to a Contract Documents or any fault or defect in the Work, the regular update of status of funds by virtue of a Development Manager shall give prompt written notice to certification of remaining funds from Owner but no more the Design/Builder and the Owner, if applicable. frequently than monthly. The Design/Builder may stop Work after ten (10) Days' written notice to the 4.3.3 The Development Manager and Owner shall Development Manager and Owner if such evidence is not communicate with the Design/Builder's Subcontractors, presented within ten (10) business days after it is and suppliers only through the Design/Builder. The requested. The failure of the Design/Builder to insist upon Development Manager and Owner shall have no the providing of this evidence at any one time shall not be contractual obligations to Subcontractors, a waiver of the Development Manager's obligation to Sub-Subcontractors, suppliers, manufacturers or the make payments pursuant to this Agreement, nor shall it Architect. be a waiver of the Design/Builder's right to request or insist that such evidence be provided at a later date. 4.4 DEVELOPMENT MANAGER/DESIGN/BUILDER / OWNER'S REPRESENTATIVE The Development 4.1.4 The Design/Builder shall review and verify the Manager's representative is Steve Galbreath, the Owner's information for completeness and accuracy as to the Representative is Jose Pastrana, P.E., and the information and services required by this Section 4.1. The Design/Builder's representative is Nick Abay, all of whom Owner does not warrant the accuracy of any information are agreed to by the parties. The representatives may only provided pursuant to this Section 4.1. be changed by the parties with written consent, and such

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consent shall not be unreasonably withheld. The reasonable and timely objection, provided that the representatives: objecting party agrees to compensate the Design/Builder for any additional costs, time, or other obligations .1 shall be fully acquainted with the Project; incurred by the Design/Builder as a result of such objection. The Design/Builder shall not be required to .2 agree to furnish the information and services retain any Subcontractor to whom the Design/Builder has required of the parties pursuant to Section 4.1 so a reasonable objection. Design/Builder will provide as not to delay the Work; and Owner with a list of acceptable Subcontractors prior to subcontracting and allow Owner fourteen (14) Days to .3 shall have authority to bind their respective review and provide comment to Design/Builder prior to participants in all matters requiring the Design/Builder subcontracting with Subcontractors Development Manager's and Owner's approval, including, without limitation, Design/Builder or its affiliate authorization or written notice (except, in the as a Subcontractor. case of Owner, subject to the penultimate sentence of Section 14.9). If the Development 5.1.1 BIDDING AND CONTRACT AWARD Design/Builder Manager or the Owner changes its shall provide all necessary Services related to the bidding representative's authority as listed above, the of Subcontracts for the construction of the Hotel parties shall be notified in advance in writing. Component of the Project, including: (a) preparing lists of prospective qualified bidders; (b) preparing appropriate .4 The Development Manager, Owner and bid documents, including proposed forms of Contract and Design/Builder understand and agree that the purchase order; (c) establishing bid schedules; (d) intent of this Agreement is to cause the developing bidder interest; (e) furnishing information Design/Builder to construct the Hotel Component concerning the Hotel Component of the Project to within the scheduled time period at or below the prospective bidders; (f) conducting pre-bid conferences; GMP as adjusted for changes provided in (g) receiving and analyzing bids and providing notification accordance with this Agreement. The to Development Manager and Owner regarding bid Development Manager has been engaged by the awards; (h) investigating the acceptability and City to develop the entire Project to completion in responsibility of Sub-Subcontractors or suppliers accordance with the Master Development proposed by any Subcontractor and advising Agreement and by the Owner to develop the Development Manager and Owner of such evaluations, Hotel Component to completion in accordance and (I) negotiating with Subcontractors concerning any with the Hotel Development Agreement. matter related to the Hotel Component of the Project. Design/Builder shall include in its bid specifications and .5 Owner and Development Manager shall, within any subsequent contract or other agreement that it will ten (10) Days of presentation by Design/Builder, not deny or diminish the right of a person to work reach agreement on decisions related to the because of the person's membership or other relationship Project which require approval of either or both status with respect to an organization. Design/Builder parties. In the event of any dispute or conflict shall provide written certification satisfactory to Owner of between Owner and Development Manager is not its compliance with Section 5.1 and this Section 5.1.1 at resolved within ten Days, the Design/Builder shall the time of bidding. act in accordance with the Owner's decision, so long as adjustments in the Contract Time or the 5.1.2 COMPETITIVE PROCUREMENT Design/Builder GMP, if any, are agreed to by the Owner and shall use competitive procurement methods, and subject Design/Builder. to market availability by trade, shall use reasonable efforts to secure at least three (3) competitive proposals for each unit of work over $50,000.00. To the extent ARTICLE 5 Design/Builder wishes to submit a bid for the SUBCONTRACTS performance of work by its own forces (including without limitation excavation, concrete, reinforcing steel, Work not performed by the Design/Builder with its own miscellaneous steel, structural steel, carpentry) it shall forces shall be performed by Subcontractors. include such information in the bids with the other competitive bids noting that it is the designated bidder. 5.1 RETAINING SUBCONTRACTORS The All such bids shall be considered as any other competitive Design/Builder shall not retain any Subcontractor to bid. Owner and Development Manager represent that whom the Development Manager or Owner has a public bidding procedures are not required and

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Design/Builder is authorized to negotiate with apparent initial GMP, the Schedule of Work shall be modified to responsive bidders to search out best value for the Hotel reflect such pre-final GMP start. The Work shall proceed in Component of the Project. Design/Builder will comply general accordance with the Schedule of Work as such with all statutory requirements. schedule may be amended from time to time, subject, however, to the provisions of Section 3.4 and Section 5.2 MANAGEMENT OF SUBCONTRACTORS The 4.1.3 and any other applicable sections of this Agreement Design/Builder shall be responsible for the management of the Subcontractors and the Sub-Subcontractors in the 6.2 SUBSTANTIAL COMPLETION At such time as a performance of the Work. GMP is accepted, dates for Substantial Completion and Final Completion shall be established and set forth in the 5.3 ASSIGNMENT OF SUBCONTRACT AGREEMENTS Final GMP Amendment. Thereafter, Design/Builder will The Design/Builder shall provide for assignment of reasonably and diligently pursue the Work and subcontract agreements and Warranties, express or completion of the Project and the Hotel Component, in implied, in the event that the Owner terminates this conformance with those dates. Time is of the essence in Agreement for cause as provided in Section 12.2. the completion of the Project. The Design/Builder Following such termination, the Owner shall notify in acknowledges and agrees that the Owner will suffer writing, those Subcontractors whose assignments will be damage due to the failure of the Design/Builder to achieve accepted, subject to the rights of sureties. Substantial Completion of the Project by the SC Date. The Design/Builder acknowledges and agrees that these 5.4 COMPLIANCE WITH LAWS All agreements between damages will be comprised of such things as, but not Design/Builder and any Subcontractors shall include the necessarily limited to, increased project management agreement of such Subcontractors to comply with costs, additional employee compensation, additional Applicable Laws. consultant compensation, other increased costs associated with delays in the opening of the Project to the 5.5 BOND TRUSTEE REQUIREMENTS Design/Builder public and that these damages may additionally be agrees to execute agreements or documents with or for comprised of such things as, but not necessarily limited the Bond Trustee as are usual and customary for to, lost profits and damages, liabilities and judgments design/builders with regard to similar project financing arising from claims of third parties against the Owner for provided such agreement or documents do not increase breach of promises or commitments to third parties the cost, obligations or risks, of the Design/Builder under associated with delay and/or potential delay in the this Agreement, modify the terms or provisions of this opening of the Project. Such damages, while not precisely Agreement, or impair its rights or expectations to receive known at the time of execution of this Agreement, are any monies or benefits when due under this Design/Build expected to escalate significantly over time, and Agreement. beginning on the sixty first (61st) Day to the estimated level of daily convention business loss due to the unavailability of the Hotel Component being open to the ARTICLE 6 public. Accordingly, the Owner and the Design/Builder CONTRACT TIME agree that the Design/Builder and Design/Builder's surety, if any, shall immediately pay directly to the Owner the 6.1 COMMENCEMENT OF THE WORK The Design "Liquidated Damages" for the Hotel Component Phase Work will commence on the Effective Date of this consisting of (i) $3,000 per Day as liquidated damages, Agreement. Design/Builder shall commence work on the and not as a penalty, for each Day, up to and including the Construction Phase on or before 204 Days from the sixtieth (60th) Day, that the Design/Builder fails to achieve Effective Date, unless unable to proceed as a result a Substantial Completion of the Project on or before the SC cause outside the control or responsibility of Date; and (ii) $9,000 per Day as liquidated damages, and Design/Builder. The Work shall proceed in accordance not as a penalty, for each Day after the sixtieth (60th) Day, with the Schedule of Work as such schedule may be that the Design/Builder fails to achieve Substantial amended from time to time, subject, however, to the Completion of the Project on or before the SC Date; provisions of Section 3.4 and Section 4.1.3. provided, however, the aggregate amount of the liquidated damages for delay under this Agreement shall The Construction Phase shall commence when the Notice not exceed the $450,000 under any circumstances. to Proceed is issued by the Owner, and shall become Permitting the Design/Builder to continue and effective only when it complies with the definition of the substantially complete the Work after the SC Date and/or Notice to Proceed provisions as detailed in Section 3.3.1 permitting the Design/Builder to continue and finally herein. If the Notice to Proceed were to be based on an complete the Work on or before the Final Completion

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Date, as applicable, shall in no way operate as a waiver on for Design Phase Services, the Design/Builder's Fee and the part of the Owner of any of its rights under this the SC Date shall be modified by Change Order as Agreement, including the Owner's rights to recover from appropriate. Such causes shall include but not be limited the Design/Builder the liquidated damages set forth to: changes ordered in the Work, acts or omissions of the herein. Development Manager or Owner or Separate Contractors employed by the Development Manager or Owner which The liquidated damages described above shall constitute prevent the Design/Builder from performing the Work, the Owner’s sole and exclusive remedy for any delays in the Development Manager or Owner preventing the Substantial Completion of the Hotel Component. Design/Builder from performing the Work pending Provided, however any damages resulting from any other dispute resolution, pre-existing Hazardous Materials, breach of the terms and provisions of this Agreement will differing site conditions which have or will have a be handled in accordance with Article 12 hereof. material adverse effect on the Work or Force Majeure. Extreme Weather that has caused or may cause delays Owner acknowledges and agrees that if the will be identified by the Design/Builder and written notice Design/Builder is entitled to an extension of the Contract given to the Development Manager weekly. Any Time pursuant to the terms of this Agreement, the SC disagreement as to the significance or effect of said Date for the entire Project will be extended by the length Extreme Weather on the Work and its progress will be of the extension of time to which the Design/Builder is handled in accordance with Article 13. entitled. Owner further agrees that if the Design/Builder is entitled to an extension of the Contract Time under the 6.3.1.1 Extreme Weather (to include, but not be limited terms and provisions of the City DBA, the SC Date for the to, rain, mud, wind, ice, cold weather or acts of nature) Hotel Component as well as the SC Date for the City delays will be managed monthly, with an allowance for Facilities Component and the Parking Facilities one (1) weather delay Day in each month already being Component shall be extended by the period of time for included in the Construction Schedule. These monthly which the Design/Builder is entitled to an extension of allowed Days are cumulative. The Extreme Weather delay time under the terms and provisions of the City DBA. It is Days shall be tracked and reported to Development the expressed understanding and agreement of the Manager on a monthly basis. If Extreme Weather delay parties that any extension of the SC Date under this Days are agreed between Owner, Development Manager Agreement or under the City DBA shall constitute an and Design/Builder and encountered on the Project in extension of the SC Date for the entire Project. excess of the allowance provided above, Design/Builder shall be entitled to an extension of the Contract Time 6.2.1 Design/Builder Bonus Notwithstanding any equal to the number of Extreme Weather delay Days that provision of this Agreement to the contrary, in the event are experienced if such request is made to Owner by the Design/Builder gives Owner notice at least 180 Days prior seventh Day of the month after such Extreme Weather to the SC Date that Design/Builder will achieve Substantial occurred. Completion of the Project prior to the SC Date set forth in the Final GMP Amendment, Design/Builder shall be 6.3.2 In the event delays to the Hotel Component of the entitled to a bonus fee in addition to Design/Builder's Project are encountered for any reason, the parties agree Construction Phase Compensation, consisting of $3,000 to undertake reasonable steps to mitigate the effect of per Day for each Day up to and including the sixtieth such delays. If the delays to the Hotel Component of the (60th) Day prior to the SC Date, conditioned upon Project are result of causes beyond the Design/Builder’s availability of funds in the Construction Fund. Once control, the Design/Builder shall be compensated for any Design/Builder provides the notice required herein, the SC and all additional costs and expenses incurred by the Date will then become the Revised SC Date which shall be Design/Builder to mitigate the effect of such delays as the date Design/Builder must achieve Substantial approved by the Owner and Development Manager, such Completion of the Project. approval not to be unreasonably withheld, and the GMP shall be increased by a Change Order by the amount of 6.2.2 FINAL COMPLETION Final Completion of the the additional costs and expenses incurred by the Project shall occur not later than thirty (30) Days after the Design/Builder to mitigate such delays. Reasonable costs, SC Date or Revised SC Date, if applicable. expenses and damages incurred by the Design/Builder to mitigate a delay shall be considered a Cost of the Work. 6.3 DELAYS IN THE WORK 6.3.3 It is understood by the parties to this Agreement 6.3.1 If causes beyond the Design/Builder's control delay that any additional costs resulting from delays outside the the progress of the Work, then the GMP, compensation control of the Design/Builder (as described in Section

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6.3.1) shall be funded from the Owner's Project 7.1 PAYMENTS Payments shall be made to the Contingency or any other available source as approved by Design/Builder in the amount and at the times as set forth Owner as an increase to the GMP. Such additional costs in the draw schedules for the Hotel Component, as and/or expenditures for delays outside of the prepared by Development Manager and approved by Design/Builder's control shall be available to Owner, provided Work has progressed to the extent Design/Builder after presentation, on or before the described in the applicable draw request. The seventh Day of the month after such delay occurred, of Design/Builder shall invoice monthly during the Design sufficient evidence to demonstrate a delay occurred and Phase Service with payment subject to the terms of was beyond the control of Design/Builder. Section 7.2.

6.3.3.1 General Conditions related costs (staff 7.2 DESIGN PHASE COMPENSATION supervision and job office related expense) shall be adjusted per work Day for Extreme Weather delay Days in 7.2.1 The cost of services performed directly by the excess of the one (1) Day per calendar month listed in Architect is part of the Design Phase Compensation and Section 6.3.1.1 outside the control of the Design-Builder, the Design/Builder's GMP; however, it shall be detailed and the GMP will be increased by the lump sum value of separately from the Design/Builder's proposal for Design the pro rata share of the general conditions divided by the Phase Services. The payments to the Architect shall be as construction duration. detailed in a separate Agreement between the Design/Builder and Architect. 6.3.4 WAIVER OF CONSEQUENTIAL DAMAGES The Owner and Development Manager waive claims against 7.2.2 The Owner shall compensate the Design/Builder for Design/Builder and Design/Builder waives claims against the Design Phase Services described in Section 3.1, Owner and Development Manager for indirect, special, including preparation of a GMP proposal as described in punitive, exemplary and/or consequential damages Section 3.2. The Design/Builder shall then compensate the arising out of or relating to this Agreement, except those Architect for its Design Phase Services. damages or losses incurred by Owner or Development Manager if and to the extent covered and paid by the 7.2.3 Design/Builder Design Phase Compensation. For Commercial General Liability or Excess Policies required the period from the Effective Date through the time when to be carried by Design/Builder for the Project, with the the Hotel Component of the Project is financed and the express understanding that nothing contained in this Construction Fund is established, the Owner shall pay, section shall be deemed to preclude an award of from Available Moneys, monthly Design/Builder's Design liquidated damages, when applicable, in accordance with Phase Compensation in accordance with the Pre-IGMP Section 6.2 above. This waiver includes damages Budget Schedule set forth in Section 3.1.4 above, incurred by any party for rental expenses, for losses of consisting of the reimbursable expenses portion of Cost use, income, profit, financing, business and reputation, of the Work which Design/Builder incurs in performance and loss of management or employee productivity or of of Design Phase Services, plus Design/Builder’s Fee for the services of such persons. This waiver is applicable, the Services. The Design Phase Compensation shall be without limitation, to all consequential damages due to rolled into and become a part of the GMP. any party's termination in accordance with Article 12.2 provided the waiver does not affect, release, or waive the 7.2.4 Total Fees and Costs. Total Design Phase fees and last paragraph in Section 12.2.2. costs payable by Owner to the Design/Builder and the design team for the Hotel shall be the lump-sum amount of $1,446,094.00 paid in installments over the duration of ARTICLE 7 the Design Phase. The total Design Phase fees and costs COMPENSATION/LIMITS payable by Owner to the Development Manager for the Hotel Component shall not exceed, in the aggregate, the NOTWITHSTANDING ANY PROVISION OF THIS ARTICLE amount of $1,153,970.00. Notwithstanding anything 7 OR ELSEWHERE IN THIS AGREEMENT, OWNER'S contained herein to the contrary, Design/Builder shall not LIABILITY FOR PAYMENT OF ANY AMOUNTS TO ANY be responsible for the fees and costs to be paid to the PERSON HEREUNDER SHALL BE LIMITED TO AVAILABLE Development Manager as part of the Project nor shall the MONEYS. Design/Builder be responsible for any services to be provided by the Development Manager in connection with the project.

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7.2.5 Payments for both the Design/Builder and Architect Architect's consultants and subconsultants shall be Design Phase Services shall be due and payable monthly excluded from the Cost of the Work. within thirty (30) Days from receipt of an application for payment, but only to the extent that Available Moneys are 7.4 DESIGN/BUILDER'S FEE The Design/Builder's Fee available for such payment and the Work has progressed includes the following: to the extent described in the draw request. If the Owner fails to pay the Design/Builder as stated herein and in .1 salaries and other mandatory or customary accordance with Texas law, then the Design/Builder shall compensation of the Design/Builder's employees have the right to stop the Work and be entitled to at its principal and branch offices, except payments due plus interest as provided in Sections 10.1.3, employees listed in Section 8.2.2; 10.1.4, and 10.1.5. .2 general and administrative expenses of the 7.3 CONSTRUCTION PHASE COMPENSATION Design/Builder's principal and branch offices other than the field office, except as may be 7.3.1 From Available Moneys only, the Owner shall expressly included in Article 8; and compensate the Design/Builder for Work performed following the commencement of the Construction Phase .3 the Design/Builder's capital expenses, including on the following basis: interest on the Design/Builder's capital employed for the Work, provided that the Design/Builder is .1 the Cost of the Work (including General paid per the terms of this Agreement. Conditions costs) as allowed and defined in Article 8, including used Construction 7.5 ADJUSTMENT IN THE DESIGN/BUILDER'S FEE Contingency (less retainage as provided herein) Adjustment in the Design/Builder's Fee shall be made as and follows:

.2 the Construction Phase fee of 3.0 percent (3.0%) .1 for changes in the Work as provided in Article 9, (which is not part of the General Conditions cost) the Design/Builder's Fee shall be (3%) of the Cost times the Cost of the Work. The Construction of the Work associated with the change. Phase fee shall be earned and billed in equal monthly installments spread out over the agreed .2 for delays in the Work caused by Owner and upon Construction Schedule. which are not the responsibility of the Design/Builder, Design/Builder will be allowed 3% 7.3.2 The compensation to be paid under Section 7.3 Fee in addition to its increased expenses (as shall be limited to the GMP established in the Final GMP approved by Owner and Development Manager) Amendment, as the GMP may be adjusted under Article 9. except that such expenses shall not be duplicated In the event the Cost of the Work, plus the as Fee and as a Cost of the Work; and Design/Builder's Fee shall be less than the GMP as adjusted by Change Orders, the resulting savings shall be .3 if the Design/Builder is placed in charge of shared by the Owner and the Design/Builder as follows: managing an insured or uninsured loss on the forty percent (40%) allocated to the Owner, thirty percent Project at the express written request of the (30%) allocated to Design/Builder and thirty percent (30%) Owner, the Design/Builder shall be paid a Fee allocated to the Development Manager. Any sharing with calculated on a fair and equitable basis as the Architect shall be handled by the Design/Builder. approved by Design/Builder, Owner and Development Manager, unless the loss is caused 7.3.3 Payment for Construction Phase Services shall be by the Design/Builder or its Subcontractors or the as set forth in Article 10. If Design Phase Services Architect. continue to be provided after construction has commenced, the Design/Builder shall be compensated as provided in Section 7.3.1 or as mutually agreed by Owner, ARTICLE 8 Design/Builder and Development Manager. COST OF THE WORK Notwithstanding any provision of this Agreement to the contrary, for the purpose of applying the Design/Builder's From Available Moneys, the Owner agrees to pay the Fee of 3.0% to the Cost of the Work for both the Design Design/Builder for the Cost of the Work as defined in this Phase and the Construction Phase, architectural and Article. This payment shall be in addition to the engineering fees and expenses of the Architect and the Design/Builder's Fee stipulated in Article 7. The Cost of

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the Work, the Design/Builder's Fee and the Construction 8.2.8 Cost, including transportation and maintenance of Contingency are all included in the GMP. all materials, supplies, equipment, temporary facilities and hand tools not owned by the workers that are used or 8.1 COST ITEMS FOR DESIGN PHASE SERVICES consumed in the performance of the Work, less salvage value; and cost less salvage value on such items used, but 8.1.1 Compensation for Design Phase Services as not consumed that remain the property of the provided in Section 7.2. Design/Builder.

8.2 COST ITEMS FOR CONSTRUCTION PHASE 8.2.9 Rental charges of all necessary machinery and SERVICES equipment, exclusive of hand tools owned by workers, used at the site of the Work, whether rented from the 8.2.1 The hourly rate for labor in the direct employ of the Design/Builder or others, including installation, repair and Design/Builder in the performance of the Work as set forth replacement, dismantling, removal, maintenance, in Exhibit A. transportation and delivery costs at rental charges consistent with those prevailing in the area. Equipment 8.2.2 Salaries of Design/Builder's employees when owned by Design/Builder may be used when and if stationed at the field office, in whatever capacity available from Design/Builder's fleet. Design/Builder has employed, employees engaged on the road expediting provided Owner with a list of equipment (stipulated and the production or transportation of material and agreed to in Exhibit B) it commonly uses from its fleet equipment, and employees from the principal or branch with its rental rates agreed to by Owner. office listed in Exhibit A, at the hourly rates provided for in Exhibit A, for such part of their time as devoted to the 8.2.10 Cost of all insurance for the Hotel Component that Work and may be adjusted annually as approved in the Design/Builder is required to procure or deems writing by Owner and Development Manager, provided necessary, in accordance with the rates set forth in Exhibit such adjustment shall not affect the Final GMP. F. The Design/Builder, at the Design/Builder’s option and discretion, may establish a Contractor Controlled 8.2.3 Cost of all employee benefits and taxes, including, Insurance Program (CCIP). If the Design/builder elects to but not limited to, workers' compensation, unemployment establish a CCIP, it will submit the CCIP to the Owner and compensation, Social Security, health, welfare, Development Manager for approval, which approval shall retirement, incentive compensation and other fringe not be unreasonably withheld. The Design/Builder, as benefits as required by law, labor agreements, or paid part of its normal business practice, has implemented a under the Design/Builder's standard personnel policy, Subcontractor Default Insurance Program Should the insofar as such costs are paid to employees of the Design/Builder elect to enroll this Project in the SDI Design/Builder who are included in the Cost of the Work Program, the cost for the SDI Program shall be included in under Sections 8.2.1 and 8.2.2. These costs (exclusive of the Cost of the Work and reimbursed at a fixed rate of holidays) are agreed to be considered Cost of the Work at 1.4% of the value of Subcontract volume. The cost for the the fixed hourly rates as shown in Exhibit A. CCIP & all other required insurance per the Agreement other than Builder’s Risk shall be included in the Cost of 8.2.4 Reasonable transportation, travel, hotel and the Work and reimbursed at a fixed rate of 2.25% of the moving expenses of the Design/Builder's personnel Contract Value, excluding the Design Fees. Cost for the incurred in connection with the Work. SDI Program and CCIP shall be submitted and payable with the first progress billing. Design/Builder will be 8.2.5 Cost of all materials, supplies and equipment reimbursed for insurance associated with the Architect’s incorporated in the Work, including costs of inspection, Design Services at a fixed rate of 1.2% as set forth in testing, transportation, storage and handling. Exhibit F.

8.2.6 Payments made or payments due by the 8.2.11 Sales, use, gross receipts or other taxes, tariffs or Design/Builder to Subcontractors for Work performed duties related to the Work for which the Design/Builder is under this Agreement. liable, except to the extent the Hotel is designated to be sales/use tax exempt. 8.2.7 Fees and expenses for Design Phase Services procured by the Design/Builder in accordance with 8.2.12 Fees, licenses, tests, royalties, damages for Section 7.3.3. infringement of patents and/or copyrights, including costs of defending related suits for which the Design/Builder is

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not responsible as set forth in Section 3.5, and deposits intended results, but only with the pre-approval of Owner, lost for causes other than the Design/Builder's negligence. not to be unreasonably withheld.

8.2.13 Losses, expenses or damages to the extent not 8.2.25 All costs associated with administration of a compensated by insurance or otherwise, and the cost of wrap-up insurance program (CCIP), including corrective work during the Construction Phase and for a expenditures for deductibles, where applicable, which will period of one year following the date of Substantial be paid as a Cost of the Work but will not increase the Completion. GMP.

8.2.14 All costs associated with establishing, equipping, 8.2.26 Costs to correct defective or non-conforming work operating, maintaining and demobilizing the field office. performed or supplied by Design/Builder or a Subcontractor or material supplier and not corrected by 8.2.15 Reproduction costs, photographs, cost of them, provided such defective or non-conforming work telegrams, facsimile transmissions, long distance did not result from the gross negligence or willful telephone calls, data processing services, postage, misconduct of the Design/Builder and only to the extent express delivery charges, telephone service at the site and that the cost of correcting the defective or reasonable petty cash expenses at the field office, and at non-conforming work is not recoverable by the the Design/Builders branch office for the portion Design/Builder from the Subcontractor or material incidental to this Project to the extent it is included in the supplier. If the total cost under this Section 8.2.26 were to GMP. exceed $50,000.00 in the aggregate on a cumulative basis for all components of the Project, such excess shall not be 8.2.16 All water, power and fuel costs necessary for the paid to Design/Builder without prior approval of Owner Work, unless specifically noted in the Design/Builders and Development Manager. GMP.

8.2.17 Cost of removal of all non-hazardous substances, debris and waste materials. 8.3 Development Manager or Owner has the right at any time and from time to time, during normal business 8.2.18 Costs incurred due to an emergency affecting the hours, at the expense of Development Manager or Owner, safety of persons and/or property. as applicable, to audit any or all of Design/Builder's records with regard to any or all cost item(s) under this 8.2.19 Trade Association fees, to the extent they are Article 8. Design/Builder agrees to make such records incurred based on the award of the Project to the available to Development Manager at a convenient Design/Builder. location at the Project in Baytown, Texas, upon 48 hours' notice from Development Manager or Owner, as the case 8.2.20 Intentionally Omitted. may be.

8.2.21 Intentionally Omitted. 8.4 Costs of Construction Materials Testing. Any costs of construction materials testing performed by 8.2.22 Pre-construction expenses incurred by the independent testing firm(s) shall not be a Cost of Work Design/Builder in estimating and Value Engineering. and such firm(s) shall be engaged by Owner. Testing These expenses shall not be duplicated if already paid as results and reports shall be made available to part of Design Phase Services. Design/Builder and Development Manager on a timely basis. In the event, any such construction materials 8.2.23 Reasonable legal, mediation and arbitration fees testing results in a need for retesting or additional testing and costs, other than those arising from disputes between through no fault of Owner or Development Manager, the the Owner or Development Manager and the costs for such retesting or additional testing shall be paid Design/Builder, resulting from the Design/Builder's timely by Design/Builder and not subject to any performance of the Work. reimbursement by Owner.

8.2.24 All other costs directly incurred in the performance ARTICLE 9 of the Work and not included in the Design/Builder's Fee CHANGES IN THE WORK as set forth in Article 7, which are reasonably inferable from the Contract Documents as necessary to produce the

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Changes in the Work which are within the general scope of this Agreement may be accomplished by Change Order 9.4 ADJUSTMENT OF UNIT PRICES If a proposed without invalidating this Agreement. Change Order alters original quantities to a degree that application of previously agreed to unit prices would be 9.1 OWNER DIRECTED CHANGE ORDERS A Change inequitable to either the Development Manager, Owner or Order is a written instrument, issued after execution of the Design/Builder, the unit prices and the GMP may be this Agreement, signed by the Development Manager, equitably adjusted upon approval by Owner and Owner, Architect and Design/Builder stating their Development Manager. agreement upon a change and the adjustment, if any, in the GMP, the compensation for Design Phase Services, 9.5 UNKNOWN CONDITIONS If in the performance of the Design/Builder's Fee and/or the date of Substantial the Work the Design/Builder finds latent, concealed or Completion and/or Final Completion. Each adjustment in subsurface physical conditions which differ from the the GMP resulting from a Change Order shall clearly conditions the Design/Builder reasonably anticipated, or if separate the amount attributable to compensation for the soil associated with the Site is found to be unsuitable Design Phase Services, other Cost of the Work and the for reuse or structurally unsound and such issue could not Design/Builder's Fee. reasonably have been anticipated, or if physical conditions are different from those normally encountered 9.2 DETERMINATION OF COST An increase or and generally recognized as inherent in the kind of work decrease in the GMP resulting from a change in the Work provided for in this Agreement, then the GMP, shall be determined by one or more of the following compensation for Design Phase Services, the methods: Design/Builder's Fee, and the date of Substantial Completion and Final Completion shall, upon approval by .1 unit prices set forth in the Agreement or as Owner, be equitably adjusted by Change Order within a subsequently agreed; reasonable time after the conditions are first observed.

.2 a mutually accepted, itemized lump sum; 9.6 CLAIMS FOR ADDITIONAL COST OR TIME For any claim for an increase in the GMP, compensation for .3 costs determined as defined in Section 7.2 and Design Phase Services, the Design/Builder's Fee and/or an Article 8 and a mutually acceptable extension in the SC Date, the Design/Builder shall give the Design/Builder's Fee as determined in Section Development Manager, the City and Owner written notice 7.5.1; or of the claim within twenty-one (21) Days after the occurrence giving rise to the claim or within twenty-one .4 if an increase or decrease cannot be agreed to as (21) Days after the Design/Builder first recognizes the set forth in Sections 9.2.1 through 9.2.3 and condition giving rise to the claim, whichever is later. Owner issues a written order for the Except in an emergency, notice shall be given before Design/Builder to proceed with the change, the proceeding with the Work. Claims for design and cost of the change in the Work shall be estimating costs incurred in connection with possible determined by the reasonable expense and changes requested by the Development Manager or savings of the performance of the Work resulting Owner, but which do not proceed, shall be made within from the change. If there is a net increase in the twenty-one (21) Days after the decision is made not to GMP, the Design/Builder's Fee shall be paid in the proceed. If Owner were to approve the expense or change amount set forth in Section 7.5.1. In case of a net in the GMP, the compensation for Design Phase Services, decrease in the GMP, the Design/Builder's Fee the Design/Builder's Fee, or the SC Date, such expense or shall not be adjusted. The Design/Builder shall change will be authorized only by Change Order executed maintain a documented, itemized accounting by Owner and Development Manager. City shall be evidencing the expenses and savings. copied on all notices transmitted under this Section 9.6.

9.3 NO OBLIGATION TO PERFORM The 9.7 EMERGENCIES In any emergency affecting the Design/Builder shall not be obligated to perform changed safety of persons and/or property, the Design/Builder shall Work until a Change Order has been executed by the act, at its discretion, to prevent threatened damage, injury Development Manager, Owner, Architect and or loss. Any change in the GMP, compensation for Design Design/Builder, except as provided in Section 9.2.4.. The Phase Services, the Design/Builder's Fee and/or extension Design/Builder shall not be authorized to perform changes of the SC Date on account of emergency work shall be in the Work outside of the GMP unless authorized in determined as provided in this Article. writing by the Development Manager and Owner.

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Development Manager, Owner and Design/Builder. For ARTICLE 10 the purpose of this Agreement, the definition of the PAYMENT FOR CONSTRUCTION PHASE SERVICES Architect is not that of a Subcontractor. The Development Manager shall seek approval of the Application for 10.1 PROGRESS PAYMENTS Payment by the Owner, in accordance with this Section 10.1 and any requirements imposed by the Bond Trustee 10.1.1 PROGRESS PAYMENTS. Design/Builder shall pursuant to the Bond Indenture. submit, as a part of the Final GMP Amendment and the normal progress payments, a schedule of values for all of 10.1.3 PAYMENT TIME FRAMES. Commencing with the the Work, which will subdivide the Work into its first Application of Payment, if an Application for Payment respective parts and will include values for all items is received by the Development Manager and Owner’s comprising the Work. The schedule of values shall serve Representative after the first Day of the month, Owner as the basis for monthly progress payments made to shall make payment on such Application for Payment Design/Builder throughout the Project. On or about the within 30 Days after receipt of such monthly Application 25th day of each month, the Design/Builder shall review for Payment and all other documents required for with the Development Manager's Representative and payment as described herein along with verification by Owner's Representative a pencil draw of the proposed the Development Manager and Owner’s Representative application for payment for costs incurred during that that such application matches the agreed upon pencil month and projected through the end of that month. Any draw amounts. All funds will be paid directly via invoices for costs which are not included in such pencil electronic wire transfer to the Design/Builder, the draw will be held over until the next monthly pay period. appropriate amounts for which Application for Payment is The amount agreed to at the pencil draw review meeting made, less amounts previously paid from the shall be processed and submitted as an approved Construction Fund for Hotel and less the applicable Application for Payment on or about the first Day of the retainage. Any Application for Payment received prior to following calendar month. The Development Manager the first Day of the month shall be treated as if it had been and Owner will review the monthly pay applications; submitted on the first Day of the month and shall not be however, such review shall not delay payment to the obligated to be paid any earlier than the thirtieth (30th) day Design/Builder. of the month. It is further acknowledged by Design/Builder that, notwithstanding this Section 10.1.3, 10.1.2 APPLICATIONS FOR PAYMENT. On or about the the timing of payments hereunder shall be further subject first Day of each month, the Design/Builder shall submit to the requirements of the Bond Indenture. to the Development Manager an Application for Payment as outlined herewith, consisting of an estimate of the Cost 10.1.4 If the Owner fails to pay the Design/Builder at the of the Work performed during the previous month, time payment of any amount becomes due, then the (including the cost of material stored on the site, or at Design/Builder, after serving written notice of the amount other approved locations, on terms and conditions due and of the possibility of the Work being stopped if acceptable to Development Manager, including all payment is not received within ten (10) Days after receipt appropriate paperwork as required and approved by the of the notice by the Development Manager, Owner’s Development Manager and Owner or Owner’s Representative and Owner may stop the Work until Representative), less all previous payments and payment of the amount owing has been received. If the Subcontractor reserves withheld. Such Subcontractor Design/Builder stops the work as provided in this section, reserves will be based on retainage of 5%; and the a Change Order may be issued to increase the GMP by balance shall be paid when their work achieves Final remobilization costs, if any, incurred by the Completion, subject to receipt of final lien waivers and Design/Builder as a result of having to stop the Work and any other document reasonably required for final restart the Work. In addition, the Design/Builder shall be payment. In any circumstance where Design/Builder entitled to an extension of the Contract Time equal to any performs direct work (work that would otherwise be done delays that are incurred in the performance of the Work by a Subcontractor) the retainage provisions of the from the date of the stoppage of Work by the preceding sentence shall apply relative to such work Design/Builder to the date that payment is received by the performed by the Design/Builder. Prior to submission of Design/Builder. the next Application for Payment, the Design/Builder shall furnish to the Development Manager and Owner a 10.1.5 Payments due but unpaid shall bear interest from staggered waiver accounting for the disbursement of the 31st Day after the later of (i) the date Owner received funds received under the previous Application. The extent an approved application for Payment or (ii) the date the of such statement shall be as agreed upon among the Work progressed to the extent described in the draw

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schedule, in accordance with Texas Government Code allowed to expire until at least 30 Days' prior written Section 2251. notice has been given to the Owner;

10.1.6 The Design/Builder warrants and guarantees that .3 a written statement that the Design/Builder title to all Work, materials and equipment covered by an knows of no reason that the insurance will not be Application for Payment, whether incorporated in the renewable to cover the period required by the Contract Project or not, will pass to the Owner upon receipt of such Documents; payment by the Design/Builder free and clear of all liens, claims, security interests or encumbrances, hereinafter .4 consent of surety, if any, to final payment; referred to as "liens". .5 Waivers and Release of Lien on Final Payment 10.1.7 The Development Manager's and/or Owner's documents from Design/Builder, Architect, and all progress payment, occupancy or use of the Hotel Subcontractors and suppliers furnishing materials, Component of the Project, whether in whole or in part, equipment or labor on the Project, in such form as shall not be deemed an acceptance of any Work not required Texas law; conforming to the requirements of the Contract Documents. .6 all governmental or other approvals and permits required for the beneficial use and occupancy of the 10.1.8 Upon Substantial Completion and after delivery of Project, including a Certificate of Occupancy, have been all documents listed in Section 10.1.9 herein to the Owner, received; the Owner shall pay the Design/Builder the unpaid balance of the Cost of the Work including retainage, .7 one set of As-Built Documents, in form and compensation for Design Phase Services and the substance as required by Owner, showing all utility lines, Design/Builder's Fee, less a sum equal to two hundred piping, ducts and similar work installed or altered by percent (200%) of the Design/Builder's estimated cost of Design/Builder; completing any unfinished items, as agreed to among the Development Manager, Owner’s Representative and .8 all Warranties as required on specific products or Design/Builder as to extent and time for completion. The portions of the Work; Development Manager and Owner thereafter shall pay the Design/Builder monthly the amount retained for .9 operations and maintenance manuals, records, unfinished items as each item is completed. instructions and data;

10.1.9 The Design/Builder shall provide to the Owner .10 a written statement that all commissioning and the following documents prior to Final Completion, as a training on identified equipment has been scheduled and condition precedent to final payment: has occurred;

.1 an affidavit in substantial accordance with Tex. .11 keys, access cards, and any other items for Prop. Code Section 53.085 that (i) the improvements have access to and security of the premises, as well as spare been completed in accordance with the Contract parts, overages, and maintenance materials; and Documents except for punch list items; (ii) payrolls, bills for materials and equipment, and other indebtedness .12 if required by the Owner, other data establishing connected with the Work for which the Owner or the payment or satisfaction of obligations, such as receipts, Owner's property might be responsible or encumbered releases and waivers of liens, claims, security interests or have been paid or will be paid out of funds advanced encumbrances arising out of the Work, to the extent and under the Final Application for Payment; and (iii) with in such form as may be designated by the Owner. If a respect to the Application for Final Payment or other Subcontractor refuses to furnish a release or waiver Applications for Payment for which the Design/Builder required by the Owner, the Design/Builder may furnish a has not received full payment, such indebtedness will be bond satisfactory to the Owner to indemnify the Owner paid only, as a condition precedent, promptly after the against such lien. In addition, Design Builder shall execute Design/Builder's actual receipt of full payment from the an Affidavit of Completion in accordance with the laws of Owner; the State of Texas signifying that the Project is complete. Within thirty (30) Days of final payment from Owner, the .2 a certificate evidencing that insurance required Design/Builder shall provide an unconditional waiver and by the Contract Documents to remain in force after final release from Design/Builder, Architect, and all payment is currently in effect and will not be canceled or Subcontractors, Sub-Subcontractors and suppliers

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furnishing materials, equipment or labor on the Project, in 11.1.1 INDEMNITY – GENERAL. DESIGN/BUILDER a form satisfactory to Owner. AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE OWNER AND DEVELOPMENT . MANAGER AND THEIR MEMBERS, OFFICERS, AGENTS, 10.1.10 The Design/Builder shall assist the Owner, EMPLOYEES, APPOINTEES AND VOLUNTEERS Development Manager and their respective Separate (“INDEMNITEES”) FROM AND AGAINST ANY AND ALL Contractors in obtaining the Final Certificate of THIRD-PARTY CLAIMS, ACTIONS, DAMAGES, LIABILITIES Occupancy. AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, 10.2 FINAL PAYMENT ACCOUNTANTS, CONSULTANTS AND OTHER EXPERTS, LITIGATION AND COURT COSTS) OF ANY CONCEIVABLE 10.2.1 Final payment, consisting of the unpaid balance of NATURE, KIND OR CHARACTER UNDER ANY the Cost of the Work, compensation for Design Phase CONCEIVABLE THEORY, FOR OR RELATING TO Services and the Design/Builder's Fee shall be due and PERSONAL INJURY (INCLUDING DEATH) PROPERTY payable when the Project reaches Final Completion and DAMAGE, OR OTHER HARM FOR WHICH RECOVERY OF all documents required under Section 10.1 have been DAMAGES IS SOUGHT, SUFFERED BY ANY PERSON OR received. Before issuance of final payment, the PERSONS, ARISING OUT OF OR RESULTING FROM Development Manager and Owner may request DESIGN/BUILDER’S BREACH OF THIS AGREEMENT, OR satisfactory evidence that all payrolls, materials bills and BY ANY NEGLIGENT, WILLFUL MISCONDUCT, OR BY other indebtedness connected with the Work have been ANY NEGLIGENT, WILLFUL OR STRICTLY LIABLE ACT OR paid or otherwise satisfied and all other Owner OMISSION OF DESIGN/BUILDER, ITS OFFICERS, requirements as a condition to Final Payment have been AGENTS, EMPLOYEES, OR SUBCONTRACTORS AND met or have occurred. INCLUDING THE ARCHITECT (COLLECTIVELY “DESIGN/BUILDER’S PARTIES”), IN THE PERFORMANCE 10.2.2 In making final payment the Development Manager OF THIS AGREEMENT. IT IS THE EXPRESSED and Owner waive all claims except for: INTENTION OF THE PARTIES HERETO, DESIGN/BUILDER, DEVELOPMENT MANAGER, AND OWNER, THAT THE .1 outstanding liens or liens that could be filed INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS within the time periods provided under Texas INDEMNITY BY DESIGN/BUILDER TO INDEMNIFY AND law; PROTECT OWNER FROM THE CONSEQUENCES OF DESIGN/BUILDER’S PARTIES’ OWN WILLFUL .2 improper workmanship or defective materials as MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL provided in Section 3.7.1 of this Agreement; AS DESIGN/BUILDER’S PARTIES’ INTENTIONAL TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND .3 Work not in conformance with the Contract FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN Documents; CONNECTION WITH THIS AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY .4 terms of any special warranties required by the ARISING FROM THE PERSONAL INJURY, DEATH, OR Contract Documents; and PROPERTY DAMAGE OF PERSONS THAT, IN WHOLE OR IN PART, IS CAUSED BY OR RESULTS FROM THE .5 claims made in writing but which remain NEGLIGENCE OF ANY PERSON OTHER THAN unsettled. DESIGN/BUILDER’S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE 10.2.3 In accepting final payment, the Design/Builder OWNER FROM WHICH THE OWNER IS INDEMNIFIED, waives all claims except those previously made in writing DESIGN/BUILDER FURTHER AGREES AND COVENANTS and which remain unsettled. TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE ARTICLE 11 THE TERMINATION AND/OR EXPIRATION OF THIS INDEMNITY, INSURANCE AND WAIVER OF AGREEMENT. SUBROGATION 11.1.2 INDEMNITY – EMPLOYEE INJURY CLAIMS. IN 11.1 INDEMNITY ADDITION TO THE INDEMNIFICATION PROVIDED IN SUB SECTION 11.1.1. ABOVE, DESIGN/BUILDER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS OWNER

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AND ALL INDEMNITEES FROM AND AGAINST ANY THIRD-PARTY CLAIM, DAMAGE, LOSS, OR EXPENSE 11.1.5 IMMUNITY RETAINED. The Design/Builder, (INCLUDING BUT NOT LIMITED TO REASONABLE Development Manager and Owner hereby acknowledge ATTORNEYS’ FEES AND COSTS), ARISING OUT OF, and agree that Owner is entering this Agreement RESULTING FROM OR ATTRIBUTABLE TO ANY CLAIM pursuant to its governmental function and that nothing OF BODILY INJURY, SICKNESS, DISEASE OR DEATH OF contained in this Agreement shall be construed as ANY EMPLOYEE OF DESIGN/BUILDER, ARCHITECT, ANY constituting a waiver of the Owner’s governmental SUBCONTRACTOR OR ANYONE DIRECTLY OR immunity from suit or liability, which is expressly INDIRECTLY EMPLOYED BY ANY OF ITS reserved to the extent allowed by law. SUBCONTRACTORS, BROUGHT BY SUCH INJURED EMPLOYEE OR THE EMPLOYEE’S WORKERS’ 11.1.6 LIMITED WAIVER OF IMMUNITY. Notwithstanding COMPENSATION INSURANCE CARRIER HEREINAFTER anything to the contrary herein, the Design/Builder, REFERRED TO AS AN “EMPLOYEE INJURY CLAIM”), Development Manager and Owner hereby acknowledge EVEN TO THE EXTENT SUCH CLAIM, DAMAGE, LOSS OR and agree that to the extent this Agreement is subject to EXPENSE IS ALLEGED TO BE CAUSED, IN PART, BY THE the provisions of Subchapter I of Chapter 271, TEXAS NEGLIGENCE OF OWNER OR ANY INDEMNITEE. IT LOCAL GOVERNMENT CODE, as amended, the Owner’s BEING THE EXPRESSED INTENT OF THE OWNER AND immunity from suit is waived only as set forth in THE DESIGN/BUILDER THAT, IN SUCH EVENT, THE Subchapter I of Chapter 271, TEXAS LOCAL DESIGN/BUILDER IS TO INDEMNIFY, HOLD HARMLESS GOVERNMENT CODE. AND DEFEND, THE OWNER AND INDEMNITEES FROM THE CONSEQUENCES OF THEIR OWN CONCURRENT 11.1.7 The obligations contained in this Section 11.1 shall NEGLIGENCE BUT SHALL NOT BE OBLIGATED TO survive the expiration, completion, abandonment and/or INDEMNIFY, HOLD HARMLESS AND DEFEND THE termination of this Agreement and Final Completion of OWNER AND THE INDEMNITEES TO THE EXTENT SUCH the Project and any other services to be provided CLAIM, DAMAGE LOSS OR EXPENSE IS DUE TO THEIR pursuant to this Agreement but in no event shall survive SOLE NEGLIGENCE. IN THE EVENT THAT ANY ACTION beyond the term of the applicable Statute of Repose. OR PROCEEDING IS BROUGHT AGAINST THE OWNER FROM WHICH THE OWNER IS INDEMNIFIED, 11.2 DESIGN/BUILDER'S LIABILITY INSURANCE DESIGN/BUILDER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL 11.2.1 The Design/Builder shall obtain and maintain COUNSEL REASONABLY ACCEPTABLE TO THE OWNER, insurance coverage for the following claims which may THE DESIGN/BUILDER AND THE DESIGN/BUILDER’S arise out of the performance of this Agreement, whether INSURERS. THE INDEMNITY PROVIDED HEREINABOVE resulting from the Design/Builder's operations or by the SHALL SURVIVE THE TERMINATION AND/OR operations of the Architect or any Subcontractor, or EXPIRATION OF THIS AGREEMENT. anyone in the employ of any of them, or by an individual or entity for whose acts they may be liable: 11.1.3 The provisions of this Section are solely for the benefit of the parties hereto and are not intended to .1 workers' compensation, disability and other create or grant any rights, contractual or otherwise, to any employee benefit claims under acts applicable to other person or entity. Design/Builder further agrees to the Work; defend, at its own expense, and on behalf of Owner and the other Indemnitees and in the name of Owner and the .2 under applicable employers' liability law, bodily other Indemnitees, any claim or litigation brought in injury, occupational sickness, disease or death connection with any such injury, death, or damage. claims of the Design/Builder's employees;

11.1.4 The Development Manager shall cause its Separate .3 bodily injury, sickness, disease or death claims Contractors, if any, to agree to indemnify the for damages to persons not employed by the Design/Builder or any Subcontractors or anyone Design/Builder; employed directly or indirectly by any of them or anyone for whose acts any of them may be liable and hold them .4 personal injury liability claims for damages harmless from all claims for bodily injury and property directly or indirectly related to the person's damage, other than property insured under Section 11.5, employment by the Design/Builder or for that may arise from that Separate Contractor's operations. damages to any other person; Such provisions shall be in a form reasonably satisfactory to the Design/Builder.

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.5 damage to or destruction of tangible property, under this Agreement and the design agreement between including resulting loss of use, claims for Architect and Design/Builder. Policies shall both be property other than the Work itself and other written for not less than $5,000,000 per claim and property insured under Section 11.5; $5,000,000 in the aggregate with a deductible or self-insured retention not to exceed $500,000.00 without .6 bodily injury, death or property damage claims Owner’s approval. These requirements shall be continued resulting from motor vehicle liability in the use, in effect for two (2) year(s) after the date of Substantial maintenance or ownership of any motor vehicle; Completion. If the Architect retains consultants for a and portion of the design, their professional liability insurance coverage, including deductible/retention amounts, shall .7 contractual liability claims involving the be as set forth above. Design/Builder's obligations under Section 11.1.1. 11.4 OWNER/DEVELOPMENT MANAGER'S LIABILITY The Design/Builder, to the extent allowed by law, shall INSURANCE The Development Manager and Owner shall name the Owner, Bond Trustee and Development be responsible for obtaining and maintaining at their Manager and their respective officers, directors, discretion their own general liability and pollution legal members, and shareholders, as additional insureds on liability insurance in amounts to support their obligations the CCIP or as additional insureds on Design/Builder's under this Agreement. liability policies if a CCIP is not provided, in accordance with Exhibit F. The Development Manager represents and covenants that it will require each of its Separate Contractors to assume 11.2.2 The Design/Builder's Insurance as required by responsibility for all liabilities, including errors and Section 11.2.1 shall be written in accordance with the omissions, relating to any rework, modifications, requirements of Exhibit F attached hereto and upgrades and/or maintenance of the Hotel Component incorporated herein by reference. Design/Builder shall use and associated FF&E by such Separate Contractors and a wrap-up insurance program (CCIP) to provide the Separate Contractors shall indemnify and hold harmless necessary coverage in accordance with the requirements the Design/Builder and its Subcontractors and of Exhibit F attached hereto and incorporated herein by Consultants at all tiers for any such claims or liabilities. reference. Design/Builder shall comply with the requirements of Tex. Ins. Code §§151.003 – 151.004 in 11.5 INSURANCE TO PROTECT PROJECT providing information concerning the CCIP. 11.5.1 As defined in Exhibit F, the Design/Builder shall 11.2.3 The insurance policies will state that the insurance obtain and maintain Builder's Risk insurance in a form carrier will endeavor to provide written notice of acceptable to the Development Manager and Owner upon cancellation or non-renewal to the Owner, Development the entire Project, and including the Hotel Component, for Manager and Bond Trustee at least thirty (30) Days in the full cost of replacement at the time of any loss during advance. Certificates of insurance showing required the construction phase. This insurance shall include coverage to be in force shall be filed with the Design Builder as the first named insured and the Owner, Development Manager and Owner prior to Development Manager, Bond Trustee, Design/Builder, commencement of the Work. If there are any subsequent Subcontractors and Sub-Subcontractors at all tiers as changes to any insurance policies after commencement of additional named insureds. This insurance shall insure the Work, Design/Builder shall promptly notify Owner, against loss from the perils of fire and extended coverage, Development and Bond Trustee and issue updated and shall include "all risk" insurance for physical loss or certificates as applicable. However, new limits cannot be damage including without duplication of coverage at lower than what is required in this Agreement for least: theft, vandalism, malicious mischief, transit, Design/Builder. collapse, falsework, temporary buildings, debris removal, flood, earthquake, high wind, water damage, tornadoes, 11.2.4 Products and Completed Operations insurance shall testing, and damage resulting from defective design, be maintained for a period of 10 (ten) year(s) after the workmanship or material. The Design/Builder shall date of Substantial Completion of the Project. increase limits of coverage, if necessary, to reflect estimated replacement cost. The Design/Builder shall be 11.3 PROFESSIONAL LIABILITY INSURANCE The responsible for any co-insurance penalties or deductibles Architect and Design/Builder shall each be responsible to resulting from Design/Builder's negligence as a Cost of obtain professional liability insurance for claims arising the Work in the GMP but such costs shall not increase the from the negligent performance of professional services GMP. For clarity, the Design/Builder will not be

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responsible for all other deductibles required by the Builder’s Risk insurance policy procured, including but not 11.6.1 Any insured loss shall be adjusted with the Owner, limited to flood, named windstorm and loss of use (if Development Manager and the Design/Builder and made applicable). The Owner, at the Owner’s option and payable to the Owner, Development Manager and expense, may purchase and maintain such insurance as Design/Builder for the insureds, as their interests may will insure the Owner against loss of use of the Owner’s appear, subject to any applicable mortgagee clause. property due to fire or other hazards, however caused. 11.6.2 Unless the Development Manager, the Owner and 11.5.2 If the Development Manager, Owner or other the Design/Builder otherwise agree in writing, upon the Separate Contractors (Operator) occupy or use a portion occurrence of an insured loss, monies received will be of the Project prior to its Substantial Completion, such deposited in a separate account and shall be distributed in occupancy or use shall not commence prior to a time accordance with the agreement of the parties of interest, mutually agreed to by the Development Manager, Owner including the Bond Trustee or in the absence of such and the Design/Builder and to which the insurance agreement, in accordance with any judgment issued by a company or companies providing the property insurance court of competent jurisdiction. If the parties are unable have consented by endorsing the policy or policies. This to agree between themselves on the settlement of the insurance shall not be cancelled or lapsed on account of loss, such dispute shall also be submitted for resolution partial occupancy. Consent of the Design/Builder to such pursuant to Article 13. early occupancy or use shall not be unreasonably withheld. 11.7 WAIVER OF SUBROGATION

11.5.3 Design/Builder shall purchase and maintain 11.7.1 The Development Manager and Design/Builder insurance to protect the Owner, Development Manager, waive all rights against each other and Owner, the Bond Trustee, Design/Builder, Architect, Subcontractors Architect, and any of their respective employees, agents, and Sub-Subcontractors, against loss of use of consultants, Subcontractors and Sub-Subcontractors for Development Manager's or Owner's property due to damages caused by risks covered by insurance provided delayed completion or caused by those perils insured in Section 11.5 to the extent of actual recovery of any pursuant to Section 11.5. Such policy will provide insurance proceeds of such insurance except such rights coverage for expediting expenses of materials, continuing as they may have to the proceeds of such insurance held overhead of the Design/Builder, Subcontractors and by the Owner, Development Manager and Design/Builder. Sub-Subcontractors, and necessary labor expense The Design/Builder, Owner and Development Manager including overtime, and other determined exposures, shall require similar waivers (as appropriate) from the including damages for delays caused by such insurable Architect and all Subcontractors, Sub-Subcontractors, perils. Exposures of the Design/Builder, Architect, Consultants and Separate Contractors and shall require Subcontractors and any Sub-Subcontractors, shall be each of them to include similar waivers in their respective determined by mutual agreement with separate limits of contracts, Subcontracts, Sub-Subcontracts and consulting coverage fixed for each item. agreements. The Development Manager shall also provide similar waivers in its Agreement with the Owner 11.5.4 Upon the Bond Trustee's, Development Manager's and any Separate Contractors. or Owner's request, the Design/Builder shall provide a copy of all policies before an exposure to loss may occur. 11.7.2 Intentionally Omitted Copies of any subsequent endorsements to the policies shall be furnished to the Development Manager, Owner 11.7.3 If the policies of insurance referred to in this and Bond Trustee. The Development Manager and Owner Section require an endorsement to provide for continued shall be given thirty (30) Days' notice of cancellation, coverage where there is a waiver of subrogation, the non-renewal, or any endorsements restricting or reducing providers of such policies will cause them to be so coverage. endorsed.

11.5.5 At Substantial Completion of the Project, the Owner shall provide property insurance for the Hotel Component in a form and amount acceptable to the ARTICLE 12 Design/Builder, to replace the Design/Builder's Builders' TERMINATION OF THE AGREEMENT AND Risk Insurance provided as defined in Section 11.5. DEVELOPMENT MANAGER'S RIGHT TO PERFORM DESIGN/BUILDER'S RESPONSIBILITIES 11.6 PROPERTY INSURANCE LOSS ADJUSTMENT

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12.1 TERMINATION BY THE DESIGN/BUILDER TERMINATION BY THE DEVELOPMENT MANAGER AND OWNER FOR CAUSE 12.1.1 Upon fifteen (15) Days' written notice to the Development Manager and Owner, the Design/Builder 12.2.1 If the Design/Builder fails to perform any of its may terminate this Agreement for any of the following obligations under this Agreement, the Development reasons: Manager or Owner may, after seven (7) Days' written notice, during which period the Design/Builder fails to .1 if the Work has been stopped for a thirty (30) Day perform such obligation, undertake to perform or period, which period shall be extended by a commence to perform such obligation. The GMP shall be maximum of 15 Days if the Owner is pursuing reduced by the cost to the Development Manager or relief from such stoppage, Owner of performing such obligations.

a. under court order or order of other 12.2.2 Upon fifteen (15) Days' written notice to the governmental authorities having jurisdiction, Design/Builder and the Design/Builder's surety, if any, and unless caused by the Design/Builder; or provided the Design/Builder does not cure or commence to cure such condition or non-performance within such b. as a result of the declaration of a national fifteen (15) Day period, the Development Manager or emergency or other governmental act during Owner may terminate this Agreement for any of the which, through no act or fault of the following reasons: Design/Builder, materials are not available; or .1 if the Design/Builder utilizes improper materials c. because of the Development Manager's or and/or inadequately skilled workers; or Owner's failure to pay the Design/Builder in accordance with this Agreement; .2 if the Design/Builder does not make proper payment to the Architect or to laborers, material .2 if the Work is suspended by the Development suppliers or Subcontractors; or Manager or Owner for sixty (60) Days; .3 if the Design/Builder fails to abide by the orders, .3 if the Development Manager, Owner, or any regulations, rules, ordinances or laws of Separate Contractor materially delay the governmental authorities having jurisdiction; or Design/Builder in the performance of the Work; .4 if the Design/Builder otherwise materially .4 if the Development Manager or Owner otherwise breaches this Agreement; or materially adversely breach this Agreement; or

.5 if the Owner fails to furnish reasonable evidence that sufficient funds are available and committed If the Design/Builder fails to cure or if the Design/Builder for the entire cost of the Project in accordance has not commenced a continuing path of cure within the with Section 4.1.3 of this Agreement. fifteen (15) Days written notice by the Development Manager and Owner, without prejudice to any other right 12.1.2 With the exception of termination occurring under or remedy, Owner may take possession of the Site and 12.1.1.1(a) or (b), upon termination by the Design/Builder complete the Work utilizing any reasonable means. In this in accordance with Section 12.1.1, the Design/Builder shall event, the Design/Builder shall not have a right to further be entitled to recover payment for all Work executed and payment until the Project is completed. for any proven loss, cost or expense, including fee earned under this Agreement in connection with the Work, plus If the costs of finishing the Work and other actual all demobilization costs and reasonable damages other damages incurred by the Owner, not expressly waived, than incidental or consequential damages. In addition, the exceed the unpaid balance of the Guaranteed Maximum Design/Builder shall be paid an amount calculated as set Price, the Design/Builder shall pay the difference to the forth either in Sections 12.3.1 or 12.3.2, depending on Owner promptly upon demand from Owner. when the termination occurs, plus those costs defined in Sections 12.3.3 and 12.3.4. 12.2.3 If the Design/Builder files a petition under the Bankruptcy Code, and/or if an involuntary petition is filed 12.2 DEVELOPMENT MANAGER'S/OWNER'S RIGHT TO against the Design/Builder, this Agreement shall PERFORM DESIGN/BUILDER'S OBLIGATIONS AND terminate if the Design/Builder or the Design/Builder's

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trustee rejects the Agreement or such involuntary or receiving the payments provided under this voluntary petition is not dismissed within 60 Days of the Article 12, the Design/Builder shall cooperate with filing or, if there has been a default, the Design/Builder is the Owner by taking all steps necessary to unable to give adequate assurance that the Design/Builder accomplish the legal assignment of the will perform as required by this Agreement or otherwise Design/Builder's rights and benefits to the Owner, is unable to comply with the requirements for assuming including the execution and delivery of required this Agreement under the applicable provisions of the papers. Bankruptcy Code.

12.2.4 In the event the Development Manager or Owner exercises their rights under Sections 12.2.1 or 12.2.2, 12.4 SUSPENSION BY OWNER FOR CONVENIENCE upon the request of the Design/Builder the Development Manager or Owner shall provide a detailed accounting of 12.4.1 The Owner may order the Design/Builder in writing the cost incurred by the Development Manager and/or to suspend, delay or interrupt all or any part of the Work Owner. without cause, for such period of time as the Owner may determine to be appropriate for its convenience; however, 12.3 TERMINATION BY OWNER WITHOUT CAUSE OR the dates for Substantial Completion and Final FOR SPECIAL CIRCUMSTANCES If the Owner terminates Completion shall be adjusted as appropriate if approved this Agreement (i) other than as set forth in Section 12.2 by Owner and Development Manager. or (ii) pursuant to Section 12.5, the Owner shall pay the Design/Builder for all Work executed and for any proven 12.4.2 Adjustments caused by suspension, delay or loss, cost or expense in connection with the Work, plus all interruption as set forth in Section 12.4.1 shall be basis for demobilization costs, to the extent of Available Moneys. increases in the GMP, compensation for Design Phase In addition, the Design/Builder shall be paid an amount Services, the Design/Builder's Fee and/or the dates of calculated as set forth below: Substantial Completion and Final Completion as and when appropriate pursuant to this Agreement. No .1 if the Owner so terminates this Agreement prior adjustment shall be made if the Design/Builder is or to commencement of the Construction Phase, otherwise would have been responsible for the whether or not financing is obtained, the suspension, delay or interruption of the Work, or if Design/Builder shall be paid from funds obtained another provision of this Agreement is applied to render by the Owner from other sources, the an equitable adjustment. Design/Builder's and Architect's Design Phase compensation as set forth in Section 7.2.2. 12.4.3 NOTICE TO CITY The City shall be copied on all notices transmitted under this Article 12. .2 if the Owner terminates this Agreement after commencement of the Construction Phase, the 12.5 OWNER’S RIGHT TO TERMINATE FOR SPECIAL Design/Builder shall be paid the Design/Builder's CIRCUMSTANCES and Architect's Design and Construction Phase Compensation as set forth in Section 7.2.2 and 12.5.1 Upon fifteen (15) Days’ written notice to the that amount of the Design/Builder's Fee earned Design/Builder and the Design/Builder’s surety, if any, the as of the date of termination. Owner may terminate this Agreement for any of the following reasons: .3 in either event, all payments as provided in Section 7.1 shall be credited to the Owner at the .1 if the Final GMP proposed by Design/Builder in time of termination. accordance with Section 3.2 is rejected by Owner; or .4 the Owner shall also pay to the Design/Builder fair compensation, either by purchase or rental at .2 if the City has terminated the City Facilities and the election of the Owner, for any equipment Parking Facilities Design/Build Agreement; or retained. The Owner shall assume and become liable for obligations, commitments and unsettled .3 if the City fails to make the City Contribution or claims that the Design/Builder has previously Owner fails to issue the Hotel Construction Phase undertaken or incurred in good faith in Bonds (as defined in the Master Development connection with the Work or as a result of the Agreement). termination of this Agreement. As a condition of

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to the Work to provide for the consolidation of ARTICLE 13 mediations. DISPUTE RESOLUTION 13.7 Intentionally Omitted. 13.1 INITIAL DISPUTE RESOLUTION If a dispute arises out of or relates to this Agreement or its breach, the 13.8 COST OF DISPUTE RESOLUTION The parties parties shall endeavor to settle the dispute first through shall bear their own costs of attorney’s fees and other direct discussions. If the dispute cannot be settled expenses incurred in any dispute resolution process through direct discussions, the parties may endeavor to unless a court awards to a prevailing party. settle the dispute by mediation under the Construction Industry Mediation Rules of the American Arbitration Association before recourse to litigation. The location of ARTICLE 14 the mediation, if any, shall be in Harris County, Texas MISCELLANEOUS PROVISIONS unless the parties mutually agree otherwise. Once one party files a request for mediation with the other 14.1 ASSIGNMENT Design/Builder shall not assign contracting party and with the American Arbitration its interest in this Agreement without the written consent Association, the parties agree to endeavor to conclude of Owner or Development Manager. Development such mediation within sixty (60) Days of the filing of the Manager shall not assign any interest in this Agreement request. without the written consent of Owner. The Owner shall be entitled to pledge and assign all of its right title and 13.2 Intentionally Omitted interest herein to the Bond Trustee pursuant to the Bond Indenture, with the exception of certain "Reserved Rights" 13.3 Intentionally Omitted as defined therein; and the Development Manager and the Design/Builder each acknowledge and consent to such 13.4 Intentionally Omitted assignment.

13.5 WORK CONTINUANCE AND PAYMENT Unless 14.2 GOVERNING LAW/VENUE This Agreement shall otherwise agreed in writing, or unless there are not be governed by the laws in the State of Texas. Venue for available funds to compensate Design/Builder, the any legal proceeding shall be proper in the state or Design/Builder shall continue the Work and maintain the federal courts of competent jurisdiction located in Harris approved schedules during any mediation proceedings. If County, Texas. By executing and delivering this the Design/Builder continues to perform, the Agreement, each party hereto irrevocably: (i) accepts Development Manager and Owner shall continue to make generally and unconditionally the exclusive jurisdiction payments in accordance with this Agreement. and venue of such courts; (ii) waives any defense of Design/Builder agrees that if, at any time, the Owner or forum non conveniens; and (iii) agrees not to seek the City, pursuant to their respective rights under the removal of such proceedings to any court or forum other Related Agreements, elect to undertake or cause the than as specified above. The foregoing shall not be completion of construction of the Work on any portion of deemed or construed to constitute a waiver by the Owner the Project without the Development Manager and gives of its immunities or any prior notice or procedural Design/Builder written notice of such election; then, so requirements applicable to actions or claims against or long as the Design/Builder has received, receives and involving Owner. continues to receive the compensation called for under this Agreement, Design/Builder shall continue to perform 14.3 SEVERABILITY The partial or complete invalidity of its obligations under (i) this Agreement and in accordance any one or more provisions of this Agreement shall not with the terms hereof or (ii) under a new contract, the affect the validity or continuing force and effect of any terms and provisions of which are substantially the same other provision. as this Agreement. Design/Builder's contract with the Architect will include a provision comparable to this 14.4 NO WAIVER OF PERFORMANCE The failure of any Section 13.5. party to insist, in any one or more instances, on the performance of any of the terms, covenants or conditions 13.6 MULTIPARTY PROCEEDING The parties agree of this Agreement, or to exercise of its rights, shall not be that all parties necessary to resolve a claim shall be construed as a waiver or relinquishment of such term, parties to the same mediation proceeding. Appropriate covenant, condition or right with respect to further provisions shall be included in all other contracts relating performance.

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14.5 TITLES The title given to the Articles of this the Project and otherwise perform any act and exercise Agreement are for ease of reference only and shall not be any decision-making authority on behalf of Owner in relied upon or cited for any other purpose. relation to this Agreement or any other agreement related to the Project. The Owner shall notify the Design/Builder 14.6 NO JOINT VENTURE It is acknowledged and and Development Manager as to its delegation in writing. agreed by and among the Parties that the terms hereof The Design/Builder and Development Manager may rely are not intended to, and shall not be deemed to, create on the Owner's delegation (i.e. to any Owner's any partnership or joint venture among the Parties. The Representative) for any purpose under this Agreement, past, present and future officers, elected officials, provided that Owner’s Representative shall not have the employees and agents of the Owner do not assume any power to act on behalf of or to bind Owner (i) to amend responsibilities or liabilities to any third party in this Agreement (other than an amendment pursuant to a connection with the development, design, construction or Change Order); (ii) terminate this Agreement; (iii) waive operation of any of the improvements contemplated by any right of the Owner under this Agreement; (iv) this Agreement. commence an action to enforce Owner’s rights under this Agreement; (v) appear, defend, compromise, settle, or 14.7 CITY'S SECURITY Design/Builder hereby agrees otherwise attempt to act on Owner’s behalf in respect of to the assignment of this Agreement (which assignment any claim or legal proceeding brought against Owner will be subordinate to the rights of the Bond Trustee under this Agreement; (vi) approve a Change Order; or under the Bond Indenture) to the City as security to the (vii) perform any act on Owner’s behalf that is expressly City for Development Manager's and Owner's prohibited under the MDA or the HDA. performance under the Related Agreements. Design/Builder further agrees to perform for the City 14.10 LIMITATION ON OWNER LIABILITY under this Agreement, at the election of the City, if the Notwithstanding anything contained in this Agreement or Ground Lease were terminated for any reason and to any of the other agreements or documents referred to permit the City to use any plans and specifications to herein or otherwise, Owner shall not be liable for which City is then entitled pursuant to this Agreement, payment of any liabilities due to the Design/Builder, provided that the City assumes the obligations of Development Manager or any other person under this Development Manager and Owner under this Agreement Agreement, or any liabilities under or by reason of, or in and that the Design/Builder has received, receives and connection with, this Agreement, any of the other continues to receive the compensation called for under agreements or documents referred to herein, the Project, this Agreement. Design/Builder will include a provision or otherwise, except from and to the extent of Available comparable to this Section 14.7 in its Contract with the Moneys. Architect. 14.10.1 It is understood and agreed that the issuance of 14.8 ENVIRONMENTAL COMMITMENT AND debt by the Owner is a governmental function and subject COMPLIANCE Design/Builder is knowledgeable of the to the sole discretion of the Owner's Board of Directors many laws, ordinances, and regulations, whether local, and it shall not be deemed or construed to constitute state or federal, relating to the protection of the willful misconduct or bad faith under this Agreement or environment as they relate to the Work which any other Contract Document, or otherwise be actionable Design/Builder is performing under this Agreement. against the Owner, in the exercise of its legislative Design/Builder will comply with all Applicable Laws and discretion, to elect, for any reason whatsoever or for no ensure all requirements imposed by these laws are met. reason, not to issue the "Hotel Construction Phase Bonds" Development Manager and Owner shall provide all the (as defined in the Master Development Agreement). environmental reports, surveys and test results in its possession prior to Design/Builder's commencement of 14.10.2 IT IS UNDERSTOOD AND AGREED THAT THE the Work. All design and construction of and relating to OWNER MAKES NO REPRESENTATION WHATSOEVER the Project shall meet Leadership in Energy and AS TO THE EXISTENCE OF AVAILABLE MONEYS, OR THE Environmental Design standards such that Development AMOUNT THEREOF, OR THE SUFFICIENCY THEREOF FOR Manager would be able to obtain U.S. Green Building THE PURPOSE FOR WHICH SUCH AVAILABLE MONEYS Council LEED minimum level certification for the Project. ARE TO BE USED UNDER THIS AGREEMENT.

14.9 OWNER AGENCY The Owner may retain and 14.11 NOTICE TO CITY Any notice and/or statement appoint such consultants and advisers that it, in its sole required and permitted to be delivered to City shall be discretion, deems necessary or appropriate to advise or given at the following address, or at such other address represent the Owner on the development of all portions of provided to the Parties in writing;

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City Attorney City of Baytown 2401 Market Street Attention: City Manager Baytown, Texas 77520 2401 Market Street Telephone: (281) 420-6505 Baytown, Texas 77520 Facsimile: (281) 420-6586 Telephone: (281) 420-6500 Facsimile: (281) 420-7176

with copy to:

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder Page 36

DEVELOPMENT MANAGER:

GARFIELD PUBLIC/PRIVATE LLC

ATTEST: BY:

PRINT NAME: ______

PRINT TITLE: ______

DESIGN/BUILDER:

DPR Construction, A General Partnership.

ATTEST: BY:

PRINT NAME: ______

PRINT TITLE: ______

ATTEST: BY:

PRINT NAME: ______

PRINT TITLE: ______

OWNER:

Baytown Municipal Development District, A political subdivision of the State of Texas

ATTEST: BY:

PRINT NAME: ______

PRINT TITLE: ______

ANNEX 1 PROJECT COMPONENTS

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder –Annex 1 Page 1 ANNEX 1

COLOR KEY

CITY PROPERTY

CITY OWNED/CITY FACILITIES

HOTEL OWNED/CITY GROUND LEASE

MARINA PARKING

MARINA SLIPS

MARINA LINE OF TOWER ABOVE PARKING

CITY FACILITIES

HOTEL

EXHIBIT “A” - BAYLAND ISLAND DESCRIPTION OF PROPERTY AND PROJECT

Donald R. Powell, Jr. Ownership - 0.01 Reg. No.: 7206 02.05.2018 Chris W. Barnes Project No.: Reg. No.: 10147 17122.000 John E. Orfield Reg. No.: 11164 R. Andrew Bennett Reg. No.: 18129

ANNEX 2 PROPERTY DESCRIPTION

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder –Annex 2 Page 1 ANNEX 2

EXHIBIT "A"

DESIGN/BUILDER'S PERSONNEL LIST

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder –Exhibit “A” Page 1 EXHIBIT A Design/Builder's Personnel List

In the event of any conflict, inconsistency or ambiguity between the terms and provisions of this Exhibit and those of the Agreement or other contract documents, this Exhibit governs. In this Exhibit, “Contractor” means DPR Construction, A General Partnership.

1. Labor Rates – January 1, 2018 (Anniversary Date) Overtime Double-Time Overtime Double-Time Classification Rate Classification Rate Rate Rate Rate Rate Principal $ 195.00 BIM Manager Senior $ 145.00 Project Executive $ 155.00 BIM Manager $ 127.00 Preconstruction Manager $ 155.00 BIM Engineer $ 82.00 Senior Estimator $ 142.00 Sr IT Technician $ 110.00 Estimator $ 110.00 IT Technician $ 90.00 Estimating Assistant $ 74.00 Technology Integration Manager $ 110.00 Estimator - Jr $ 82.00 Business Development $ 175.00 MEP Senior Estimator $ 142.00 Marketing Professional $ 95.00 MEP Estimator $ 110.00 People Practices/Learning & Development $ 120.00 Design Manager $ 125.00 SPW Executive $ 155.00 Senior MEP Coordinator $ 140.00 SPW - Estimator Sr $ 142.00 MEP Coordinator $ 120.00 SPW - Estimator $ 110.00 MEP Manager $ 133.00 SPW - Safety Manager $ 107.00 Senior Project Manager $ 133.00 SPW - Safety Coordinator $ 92.00 Project Manager $ 112.00 SPW - Project Manager - Sr $ 133.00 Senior Project Engineer $ 92.00 SPW - Project Manager $ 110.00 Project Engineer $ 82.00 SPW - Project Engineer Sr $ 92.00 Junior Project Engineer $ 79.00 SPW - Project Engineer $ 79.00 Document Control $ 79.00 SPW - Superintendent Sr $ 145.00 Intern $ 70.00 SPW - Superintendent $ 110.00 vConstruct $ 78.00 SPW - Assistant Superintendent $ 93.00 Project Controls Manager / Engineer$ 127.00 SPW - Field Engineer $ 80.00 Senior Scheduler $ 140.00 General Foreman $ 55.00 $ 77.00 Scheduler $ 135.00 Carpenter - General $ 42.00 $ 58.00 Office Coordinator $ 96.00 Laborer - Foreman - General $ 53.00 $ 73.00 Senior Project Accountant $ 96.00 Laborer - General $ 38.00 $ 54.00 Project Accountant $ 81.00 Carpenter - Foreman - Conc/Unistrut $ 55.00 $ 72.00 Accounts Payable $ 80.00 Carpenter - Concrete / Unistrut $ 42.00 $ 54.00 Payroll Coordinator $ 80.00 Carpenter - Concrete - Helper $ 38.00 $ 55.00 Sr Field Office Coordinator $ 80.00 Concrete Operator / Operating Engineer $ 43.00 $ 58.00 Field Office Coordinator $ 70.00 Carpenter - Foreman - DFH / Div 10 $ 60.00 $ 80.00 Insurance Administrator $ 80.00 Carpenter - DFH / Div 10 $ 46.00 $ 60.00 Contracts Administrator $ 80.00 Drywaller - Foreman $ 56.00 $ 76.00 Receptionist $ 62.00 Drywaller $ 42.00 $ 56.00 Safety Executive $ 155.00 Drywaller - Helper $ 38.00 $ 55.00 Safety Manager $ 107.00 Carpenter - Div 7 - Lead $ 52.00 $ 68.00 Safety Coordinator $ 92.00 Carpenter - Div 7 $ 41.00 $ 54.00 Senior Superintendent $ 145.00 Div 7 - Laborer $ 38.00 $ 54.00 Superintendent $ 117.00 Taper - Foreman $ 49.00 $ 67.00 Ass't Superintendent $ 95.00 Taper $ 44.00 $ 58.00 Field Engineer $ 82.00 Painter/Taper/Plaster - Lead $ 47.00 $ 62.00 Senior Surveyor $ 145.00 Painter $ 41.00 $ 55.00 Surveyor $ 95.00 Painter - Helper $ 38.00 $ 54.00 Design Manager - Sr $ 180.00 Talent Acquisition Manager $ 80.00 The above labor rates include wages, fringes, benefits, payroll taxes and employee insurance; employee benefits such as vacation, sick leave, and jury leave; and employee computer equipment,* mobile phones, accessories, software** and support; and shall apply to both direct employees and workers contracted through vConstruct or through temporary labor agreements with Contractor. The above labor rates exclude holiday, and if the Project is using a Controlled Insurance Program they also exclude worker’s compensation insurance. These labor rates are subject to five percent (5%) increase on an annual basis on the anniversary date of the rates as shown above. Such rate change shall be accomplished by change order to the Agreement, provided, however, such rate change shall not increase the Final GMP.

* The following items are not included in this rate: Jobsite information technology infrastructure set-up (equipment and labor), jobsite phone/fax lines (set-up and usage), and hardware costs for tablet computers (e.g., iPads), though software, connectivity and IT support for tablets are included. ** The following types of DPR’s customary software applications are included within this rate: Microsoft desktop and online productivity applications, email applications, BIM applications, construction applications, scheduling applications, turnover software, CMIC project management & job cost management software, our data center hosting infrastructure and databases for these software applications, firewall software and backup software for all devices, core enterprise security applications.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit “A” Page 1 EXHIBIT A Design/Builder's Personnel List 2. Equipment Rates – January 1, 2018 Hourly Rate Weekly Monthly Item Rate Rate Truck $ 1,000.00

3. Insurance Rates:

(a) "Contractor’s Insurance" (Contractor’s entire enterprise insurance program, excluding SDI and builder’s risk) provided for the Project is fixed at the stipulated rate of (1.2%) times contract value. The rate set forth above includes the cost of Contractor’s CCIP coverage, as outlined in the Contractor’s Insurance Manual. The amount for Contractor’s Insurance is due and payable in full upon Contractor’s binding of the coverage for this project.

(b) If Contractor is providing builder’s risk/builder’s wrap-around insurance, Contractor’s builder’s risk insurance cost is fixed at the stipulated rate of (0.10%) times contract value. The charge for builder’s risk insurance cost is in addition to the charge for Contractor’s Insurance and is due and payable in full upon Contractor’s binding of the policy. The amount for builder’s risk insurance will be adjusted based on adjustments to the contract value and schedule of Contractor’s performance.

c) Contractor’s cost to enroll all qualified subcontractors into the subcontractor default insurance (SDI) program for the Project is fixed at the stipulated rate of (1.4%) of enrolled subcontract value, including qualified subcontractors that are contracted under a self-perform scope of work. The initial charge for the SDI program (based on then-estimated subcontract volume) is due and payable in full upon Contractor’s enrollment of the Project into the SDI program and is in addition to the charge for Contractor’s Insurance. At the earlier of (1) the point where the estimated enrolled subcontract volume is actually exceeded, or, (2) the end of the Project, the amount for the SDI program will be adjusted and reconciled based on the actual enrolled subcontract volume.

4. Contractor's Bond Rate: Contractor’s cost to provide payment and performance bonds for the Project is fixed at the stipulated rate of (0.39%) times contract value. The initial charge for the bonds shall be based on the estimated contract value and is due and payable in full upon issuance of the bonds. The charge for the bonds will be adjusted based on adjustments to the contract value and schedule of Contractor’s performance.

5. Contractor's Self-Performed Work (SPW): All self perform scopes of work will be performed on a lump sum subcontract basis, as such, self perform costs are not auditable. For any trade work performed by Contractor itself, a standard fixed markup of 3% shall be applied to the amounts for SPW payable under the contract, in addition to any other applicable fees or markups on the SPW allowable per the Subcontract. This standard markup is applicable to both base SPW scope (inclusive of all vendors and SPW subcontractors) and any changes to the SPW scope. The value of this standard markup shall be considered part of Contractor’s allowable costs on the same basis as subcontracted work.

GENERAL: The rates in this Exhibit are fixed, stipulated rates by agreement of the Owner and Contractor. These fixed rates will be used to calculate the costs reimbursable to Contractor under the Agreement, including for change orders, for each listed labor, equipment, insurance and bond classification item by multiplying such rates by the actual, applicable units. These fixed rates govern over any contrary cost reimbursement terms of the Agreement or other contract documents. Where Owner has the right under the Agreement or other contract documents to audit Contractor’s costs, such right with respect to these fixed rates is limited to auditing the quantity of allowable units and the application of the correct fixed rates, but such audit right does not extend to items of cost within the fixed rates or documentation of how such fixed rates were determined.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit “A” Page 2

Exhibit "B"

LIST OF DESIGN/BUILDER'S EQUIPMENT WITH AGREED UPON RENTAL RATES

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "B" Page 1 EXHIBIT B List of Design/Builder's Equipment In the event of any conflict, inconsistency or ambiguity between the terms and provisions of this Exhibit and those of the Agreement or other contract documents, this Exhibit governs. In this Exhibit, “Contractor” means DPR Construction, A General Partnership.

Description DPR Daily Rate DPR Weekly Rate DPR Monthly Rate BOOM LIFT-40' ARTICULATING 2WD ELECTRIC $380 $1,070 $2,575 BOOM LIFT-45' ARTICULATING 4WD ENGINE $357 $1,063 $1,867 BOOM LIFT-45' ARTICULATING 2WD ELECTRIC $380 $1,070 $2,575 BOOM LIFT-60' ARTICULATING 4WD ENGINE $520 $1,596 $3,554 BOOM LIFT-80' ARTICULATING 4WD ENGINE $907 $2,500 $5,467 BOOM LIFT-40' TELESCOPIC 4WD ENGINE $357 $1,063 $1,867 BOOM LIFT-45' TELESCOPIC 4WD ENGINE $369 $1,125 $2,000 BOOM LIFT-60' TELESCOPIC 4WD ENGINE $482 $1,250 $2,667 BOOM LIFT-65' TELESCOPIC 4WD ENGINE $500 $1,500 $2,934 BOOM LIFT-80' TELESCOPIC 4WD ENGINE $907 $2,500 $5,467 BOOM LIFT-85' TELESCOPIC 4WD ENGINE $907 $2,625 $5,600 BOOM LIFT-EXHAUST SCRUBBER $33 $125 $324 BOOM LIFT-WELDER KIT W/LEAD&GROUND JLG $55 $198 $460 MANLIFT-12' SELF PROP ELECTRIC $125 $250 $394 MANLIFT-15' SELF PROP ELECTRIC $155 $370 $945 MANLIFT-20' SELF PROP ELECTRIC $125 $350 $634 LADDER-6' STEP $17 $43 $86 LADDER-8' STEP $23 $46 $92 LADDER-10' STEP $28 $55 $110 LADDER-12' STEP $32 $72 $144 LADDER-14' STEP $37 $91 $182 LADDER-16' STEP $42 $114 $228 LADDER-16' EXTENSION $23 $73 $146 LADDER-20' EXTENSION $28 $65 $130 LADDER-24' EXTENSION $31 $84 $168 LADDER-28' EXTENSION $37 $91 $182 LADDER-32' EXTENSION $42 $107 $214 LADDER-36' EXTENSION $46 $116 $232 LADDER-40' EXTENSION $53 $124 $248 SCISSOR LIFT-19' 2WD ELECTRIC $125 $250 $394 SCISSOR LIFT-20' 2WD ELECTRIC $125 $250 $414 SCISSOR LIFT-26' NARROW 2WD ELECTRIC $132 $375 $600 SCISSOR LIFT-26' STANDARD 2WD ELECTRIC $132 $375 $600 SCISSOR LIFT-26' 4WD ELECTRIC $240 $620 $1,520 SCISSOR LIFT-32' 2WD NARROW ELECTRIC $150 $475 $800 SCISSOR LIFT-32' STANDARD 2WD EL $150 $475 $800 SCISSOR LIFT-32' 2WD ELECTRIC $260 $755 $1,950 SCISSOR LIFT-40' 4WD ELECTRIC $320 $715 $2,080 SCISSOR LIFT-26' 4WD ENGINE $219 $563 $1,134 SCISSOR LIFT-32' 4WD ENGINE $225 $688 $1,334 SCISSOR LIFT-33' 4WD ENGINE LARGE DECK $325 $925 $2,475 SCISSOR LIFT-43' 4WD ENGINE $269 $844 $2,200 AIR COMPRESSOR-185CFM TOWABLE $94 $269 $794 AIR COMPRESSOR-375CFM TOWABLE $188 $625 $1,467 AIR COMPRESSOR-375CFM TOWABLE IQ $250 $765 $2,125 AIR TOOLS-HAMMER CHIPPING $50 $144 $434 AIR TOOLS-HAMMER 30# "T" $50 $144 $434 AIR TOOLS-HAMMER 30# "D" $50 $144 $434 AIR TOOLS-HAMMER 60# "T" $50 $144 $434 AIR TOOLS-HAMMER 90# "T" $50 $144 $434 AIR TOOLS-RIVET BUSTER 11" STROKE $72 $259 $518 AIR TOOLS-RIVET BUSTER 8" STROKE $50 $144 $434 BIT-CHISEL 2" ELECTRIC C/H $12 $22 $44 BIT-CHISEL ELECTRIC C/H $11 $19 $38 BIT-POINT ELECTRIC C/H $11 $19 $38 AIR-3/4"X50' HOSE $11 $22 $44 PNEUMATIC-MULTI-HEAD SCABBLER $242 $683 $1,744 BIT-1 1/8" ASPHALT CUTTER $15 $29 $58 BIT-1 1/8" CLAY SPADE $15 $29 $58 BIT-1 1/8" MOIL POINT $11 $20 $40 BIT-1 1/8"X1" CHISEL $11 $20 $40 BIT-1 1/8"X3' MOIL POINT $11 $20 $40 BIT-1 1/8"X3" CHISEL $12 $21 $42 BIT-1 1/8"X4' MOIL POINT $11 $20 $40 BIT-1 1/8"X6' MOIL POINT $17 $32 $64 BIT-1" CLAY SPADE $15 $29 $58 BIT-1" MOIL POINT $11 $20 $40 BIT-1"X1" CHISEL $11 $20 $40 BIT-1"X3" CHISEL $11 $20 $40 BIT-2" A/C/H CHISEL $11 $20 $40 BIT-A/C/H BUSH HEAD $20 $42 $84 BIT-A/C/H CARBIDE BUSH HEAD $36 $70 $140

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "B" Page 1 Description DPR Daily Rate DPR Weekly Rate DPR Monthly Rate BIT-A/C/H CHISEL $11 $20 $40 BIT-A/C/H POINT $11 $20 $40 STEEL-10' DRILL $25 $51 $136 STEEL-2' DRILL $17 $32 $64 STEEL-3' DRILL $20 $37 $74 STEEL-4' DRILL $22 $43 $86 STEEL-6' DRILL $26 $53 $106 STEEL-8' DRILL $32 $64 $128 ROLLER-36" RIDE ON DOUBLE DRUM $190 $620 $1,790 ROLLER-48" RIDE ON DOUBLE DRUM $305 $850 $2,350 ROLLER-66" RIDE ON DOUBLE DRUM $650 $2,045 $6,081 ROLLER-9 WHEEL RIDE ON PNEUMATIC $325 $1,018 $2,800 ROLLER-24"/33" WALK BEHIND TRENCH $344 $982 $2,134 ROLLER-26" WALK BEHIND DOUBLE DRUM $155 $585 $1,575 ROLLER-47" RIDE ON SINGLE DRUM $425 $1,136 $3,476 ROLLER-54" RIDE ON SINGLE DRUM $475 $1,363 $4,024 ROLLER-66" RIDE ON SINGLE DRUM $525 $1,704 $4,769 TAMPER-PLATE GAS $94 $282 $634 TAMPER-UPRIGHT GAS MEDIUM $94 $282 $634 TAMPER-UPRIGHT GAS SMALL $83 $344 $743 BLADE-DMD DISK 4" $11 $22 $44 DRILL-DIAMOND CORE BIT 1 1/2" $35 $131 $271 DRILL-DIAMOND CORE BIT 1 1/4" $35 $131 $271 DRILL-DIAMOND CORE BIT 1" $35 $131 $271 DRILL-DIAMOND CORE BIT 1/2" $22 $66 $150 DRILL-DIAMOND CORE BIT 10" $53 $204 $411 DRILL-DIAMOND CORE BIT 12" $165 $495 $1,125 DRILL-DIAMOND CORE BIT 2 1/2" $35 $131 $271 DRILL-DIAMOND CORE BIT 2" $35 $131 $271 DRILL-DIAMOND CORE BIT 2"-4" (SET) $100 $300 $600 DRILL-DIAMOND CORE BIT 3 1/2" $35 $131 $271 DRILL-DIAMOND CORE BIT 3" $35 $131 $271 DRILL-DIAMOND CORE BIT 3/4" $22 $66 $150 DRILL-DIAMOND CORE BIT 4" $35 $131 $271 DRILL-DIAMOND CORE BIT 5 $53 $204 $411 DRILL-DIAMOND CORE BIT 5/8" $22 $66 $150 DRILL-DIAMOND CORE BIT 6" $53 $204 $411 DRILL-DIAMOND CORE BIT 7" $53 $204 $411 DRILL-DIAMOND CORE BIT 7/8" $22 $66 $150 DRILL-DIAMOND CORE BIT 8" $53 $204 $411 DRILL-DIAMOND ROTO CORE BIT 3 1/4" $39 $116 $265 DRILL-CORE HAND HELD ELECTRIC $92 $284 $656 DRILL-CORE STAND ELECTRIC $109 $330 $735 SAW-12" CUTOFF HAND HELD MIX FUEL $72 $240 $613 SAW-14" CONC W/B SELF PROPELLED GAS $94 $250 $867 SAW-14" CUTOFF HAND HELD ELECTRIC $57 $211 $560 SAW-14" CUTOFF HAND HELD MIX FUEL $88 $303 $700 SAW-18" CONC W/B SELF PROPELLED GAS $149 $464 $1,120 SAW-CART $28 $110 $220 SAW-CONCRETE HAND HELD ELECTRIC $40 $150 $300 SAW-CONCRETE WALK BEHIND GAS $91 $340 $841 SAW-MICRO CON GREEN CONC W/B GAS $66 $239 $630 SAW-SOFF CUT WALK BEHIND GAS $353 $1,300 $3,431 SAW-SOFF CUT WALK BEHIND GAS $124 $495 $1,357 BUGGY-EXHAUST SCRUBBER FOR POWER $21 $81 $184 BUGGY-GEORGIA $23 $80 $209 BUGGY-GEORGIA (POWER) $138 $418 $945 BUCKET-CONCRETE 1 YARD $57 $211 $449 BUCKET-CONCRETE 1/2 YARD $44 $158 $421 BUCKET-CONCRETE 2 YARD $73 $266 $535 CONCRETE-BUCKET W/ DISCH CONE 1/2 YD $36 $133 $349 CONCRETE-HOPPER 30" X 30" $26 $55 $110 MIXER-CEMENT 4 CUBIC FOOT ELECTRIC $46 $171 $419 MIXER-CEMENT 4 CUBIC FOOT GAS $46 $171 $419 MIXER-CEMENT 7 CUBIC FOOT $46 $171 $419 MIXER-CEMENT 9 CUBIC FOOT $76 $257 $627 MIXER-MORTAR 9 CUBIC FOOT $80 $266 $696 BUGGY-TILT TRUCK 1 YARD $35 $120 $300 VIBRATOR-CONCRETE 1 HP $53 $168 $414 VIBRATOR-CONCRETE 2 HP $57 $210 $478 VIBRATOR-CONCRETE 2 HP BACKPACK $77 $231 $695 VIBRATOR-CONCRETE 3 HP $61 $218 $519 CONCRETE-BLANKET (11' X 23') ELECTRIC $121 $340 $680 TROWEL-36" GAS POWER $67 $213 $545 TROWEL-44" GAS POWER $69 $230 $586 CONCRETE-FLOOR GRINDER ELECTRIC $86 $319 $841 CONCRETE-FLOOR GRINDER PROPANE $84 $300 $818 CONCRETE-VACUUM FOR GRINDER/PLANER $50 $172 $468 GRINDER-DYMA INSERTS (SET OF 6) $150 $534 $1,363 GRINDER-STRIP SERT BOXES (SET OF 6) $106 $188 $376 CONCRETE-PLANER ELECTRIC 4" $51 $180 $432

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "B" Page 2 Description DPR Daily Rate DPR Weekly Rate DPR Monthly Rate CONCRETE-PLANER GAS W/CARBIDE TEETH $325 $972 $2,500 PRESSURE WASHER-COLD GAS PORTABLE $103 $385 $953 BACKHOE-2WD 14' STANDARD $282 $813 $1,867 BACKHOE-4WD 14' STANDARD $319 $875 $2,200 BACKHOE-2WD 18' EXTENDAHOE $310 $972 $2,426 BACKHOE-4WD 18' EXTENDAHOE $350 $1,100 $2,862 BACKHOE-ROCK BUCKET 16" $14 $52 $137 BACKHOE-BUCKET 18" V BOTTOM $61 $176 $425 BACKHOE-BUCKET 24"V BOTTOM $72 $218 $505 BACKHOE-310/410 EXHAUST SCRUBBER $70 $251 $681 BACKHOE-FORKS JRB COUPLER PROP (410) $55 $165 $400 SKIDSTEER-250# HAMMER PROP $161 $598 $1,622 SKIDSTEER-250# HAMMER UNIV $157 $563 $1,534 SKIDSTEER-500# HAMMER UNIV $195 $725 $1,850 EXCAVATOR-250# HAMMER UNIV $161 $598 $1,622 EXCAVATOR-750# HAMMER $225 $800 $2,000 BACKHOE-1000# HAMMER $250 $900 $2,100 LOADER-WHEEL FORK ATTACH $36 $129 $340 AUGER-ATTACH PLAT SKID $44 $138 $325 AUGER-ATTACH SKID $100 $375 $953 BRUSH CUTTER-SKID $193 $385 $800 SKIDSTEER-60" SWEEPER ATTACH $130 $475 $1,365 SKIDSTEER-BUCKET 4IN1 UNIV $106 $389 $1,022 SKIDSTEER-FORK ATTACH LARGE $28 $94 $204 TRENCHER-RIDE-ON 24" ROCK SAW WHEEL $525 $1,520 $4,300 TRENCHER-RIDE-ON 30" ROCK SAW WHEEL $650 $2,300 $5,900 MINI EX-4,000# ROPS $270 $620 $1,788 MINI EX-6,000# CAB $295 $825 $2,255 MINI EX-6,000# ROPS $244 $719 $1,867 MINI EX-8,000# CAB $325 $935 $2,420 MINI EX-8,000# ROPS $250 $813 $2,134 MINI EX-10,000# ROPS $380 $1,025 $2,750 MINI EX-10,500# CAB $420 $1,295 $3,395 MINI EX-10,500# ROPS $375 $1,125 $2,934 MINI EX-18,000# CAB $500 $1,875 $4,534 TRAILER-500 GALLON VAC W/25' HOSE 2 AXLE $375 $1,500 $4,000 TRAILER-800 GALLON VAC W/25' HOSE 2 AXLE $780 $2,335 $6,865 LOADER-WHEEL 2.5 YARD $563 $1,813 $4,400 LOADER-WHEEL 3.0 YARD $840 $2,300 $5,990 LOADER-WHEEL 4.0 YARD $850 $2,405 $6,200 LOADER-SKID 60" $260 $725 $1,703 LOADER-SKID 68" $244 $657 $1,467 LOADER-SKID 74" $270 $725 $2,000 LOADER-TRACK SKID 68"/78" $338 $1,200 $2,134 TRENCHER-RIDE ON 48" $344 $1,000 $2,800 TRENCHER-WALK BEHIND 24" / TRACK $215 $794 $2,146 TRENCHER-WALK BEHIND 24" / TIRE $195 $654 $1,951 TRENCHER-WALK BEHIND 36" / TRACK $229 $682 $2,290 TRENCHER-WALK BEHIND 36" / TIRE $229 $682 $2,290 GENERATOR-PORTABLE 6KW GAS $75 $250 $650 GENERATOR-TOWABLE 15KW DIESEL $193 $540 $1,325 GENERATOR-TOWABLE 20KW DIESEL $169 $500 $1,034 GENERATOR-TOWABLE 36KW DIESEL $207 $625 $1,467 GENERATOR-TOWABLE 56KW DIESEL $250 $707 $1,734 GENERATOR-TOWABLE 80KW DIESEL $275 $875 $2,267 GENERATOR-TOWABLE 100KW DIESEL $415 $1,245 $3,150 DRILL-1/2" ELECTRIC $22 $54 $144 DRILL-1/2" ANGLE ELECTRIC $23 $61 $153 DRILL-1/2" MAGNETIC PRESS ELECTRIC $95 $347 $694 DRILL-3/4" HAMMER ELECTRIC $28 $100 $272 DRILL-3/4" MAGNETIC PRESS ELECTRIC $95 $347 $694 DRILL-3/8" ELECTRIC $20 $69 $148 DRILL-3/8" ANGLE ELECTRIC $15 $52 $137 GRINDER-4 1/2" ANGLE ELECTRIC $17 $58 $116 GRINDER-9" ANGLE ELECTRIC $26 $88 $191 HAMMER-35# CHIPPING ELECTRIC $83 $314 $628 HAMMER-CHIPPING ELECTRIC $66 $215 $545 HAMMER-60# ELECTRIC $105 $385 $770 HAMMER-60# HILTI ELECTRIC $120 $460 $940 HAMMER-1 1/2" ROTO ELECTRIC $74 $248 $586 HAMMER-1 3/4" ROTO ELECTRIC $83 $279 $709 HAMMER-1" ROTO ELECTRIC $55 $195 $449 SAW-7 1/4" SKIL ELECTRIC $24 $65 $147 SAW-PORTA BAND W BLADE ELECTRIC $43 $150 $410 SAW-RECIPROCATING ELECTRIC $28 $88 $182 LIGHT-1000 WATT 2 HEAD PORTABLE ELECTRIC $35 $116 $300 LIGHT-4000 WATT TOWER TOWABLE DIESEL $94 $250 $634 BANDING MACHINE-W CRIMPER & PULLER $35 $64 $128 BLOWER-BACK PACK $52 $185 $478 LEVEL-BUILDERS W TRIPOD/TARGET $51 $136 $359 LEVEL-LASER W TRIPOD/TARGET $103 $273 $709

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "B" Page 3 Description DPR Daily Rate DPR Weekly Rate DPR Monthly Rate LEVEL-TRANSIT W TRIPOD $50 $131 $295 TORCH-SET COMPLETE $99 $231 $462 FORKLIFT-18' 4,400# 4WD TELEHANDLER $325 $875 $2,134 FORKLIFT-34' 6,000# 4WD TELEHANDLER $357 $875 $2,267 FORKLIFT-36' 6,000# 4WD TELEHANDLER $369 $1,000 $2,467 FORKLIFT-42' 6,000# 4WD TELEHANDLER $369 $1,000 $2,467 FORKLIFT-42' 8,000# 4WD TELEHANDLER $469 $1,188 $2,867 FORKLIFT-54' 10,000# 4WD TELEHANDLER $588 $1,563 $3,834 FORKLIFT-55' 12,000# 4WD TELEHANDLER $600 $2,100 $5,334 FORKLIFT-1 1/2 YD SELF DUMP HOPPER $45 $160 $420 FORKLIFT-2 YD SELF DUMP HOPPER $61 $193 $475 JACK-21" PALLET $51 $166 $410 JACK-27" PALLET $51 $166 $410 JACK-ELECTRIC PALLET $80 $300 $800 MATERIAL LIFT-12' $45 $152 $390 MATERIAL LIFT-15' $45 $152 $390 MATERIAL LIFT-18' $66 $209 $475 MATERIAL LIFT-24' $83 $237 $575 MATERIAL LIFT-6' $30 $95 $250 PUMP-TRASH 2" GAS W/SUCT & 50' DISCH $83 $292 $695 PUMP-TRASH 3" GAS W/SUCT & 50' DISCH $94 $358 $818 PUMP-TRASH 4" GAS W/SUCT & 50' DISCH $143 $528 $1,308 PUMP-TRASH 4" TOW DSL W/SUCT & 50' DISCH $280 $845 $2,331 PUMP-SUB 1 1/2" ELECTRIC W/50' DISCH $29 $92 $184 PUMP-SUB 1/2HP 2" ELECTRIC W/50' DISCH $68 $248 $586 PUMP-SUB 1HP 2" ELECTRIC W/50' DISCH $68 $248 $586 PUMP-SUB 5HP 3" ELECT W50' DISCH/3 PHASE $94 $341 $845 PUMP-SUB PUDDLE ELECTRIC W/50' GRDN HOSE $20 $46 $92 PUMP-SUB TRASH 1/2HP 2" ELEC W/50' DISCH $68 $248 $586 PUMP-SUB TRASH 1HP 2" ELECTRIC W/50' DIS $68 $248 $586 TRAILER-10' UTILITY 1 AXLE $36 $133 $360 TRAILER-12' UTILITY 2 AXLE $44 $158 $373 TRAILER-12,000 LB FLAT BED 2 AXLE $52 $183 $499 TRAILER-FLAT BED 1 AXLE $35 $105 $250 TRAILER-FLAT BED 2 AXLE $39 $158 $316 TRAILER-PIPE 2 AXLE $165 $550 $1,400 TRAILER-500 GALLON WATER WAGON 2 AXLE $125 $357 $927 TRUCK-WATER 2,000 GAL $332 $1,125 $3,000 DPR Superintendent 1/2 Ton Truck $33 $231 $1000 GENERAL: The rates in this Exhibit are fixed, stipulated rates by agreement of the Owner and Contractor. These fixed rates will be used to calculate the costs reimbursable to Contractor under the Agreement, including for change orders, for each listed labor, equipment, insurance and bond classification item by multiplying such rates by the actual, applicable units. These fixed rates govern over any contrary cost reimbursement terms of the Agreement or other contract documents. Where Owner has the right under the Agreement or other contract documents to audit Contractor’s costs, such right with respect to these fixed rates is limited to auditing the quantity of allowable units and the application of the correct fixed rates, but such audit right does not extend to items of cost within the fixed rates or documentation of how such fixed rates were determined.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "B" Page 4

EXHIBIT "C"

SECTIONS FROM THE MASTER DEVELOPMENT AGREEMENT

1.2. Definition of Terms. When used in this Agreement with an initial capital letter or letters, each of the following terms shall have the meaning given it below.

“Brand” means the upscale hotel brand of the Hotel as approved by the City Council and Board of Directors of the Hotel Owner. Such Brand shall never be below that of the Competitive Set.

“City” means the City of Baytown, Texas, a home-rule municipal corporation located in Harris and Chambers Counties, Texas.

“City Contribution” means the City’s combined net proceeds of the issuance of the City’s debt obligations, in one or more series, to be used to construct the City Facilities; provided that the City shall not be obligated to contribute more than $21,100,000.00 (which amount is inclusive of the Design and Development Funds) in net proceeds to fund the design, development and construction of the City Facilities. The net proceeds of the City’s obligations to fund the City Facilities will be based on a par amount that will be supported by revenues the City has dedicated to the payment of the debt, based on current City projections and market conditions. In no event shall the City Contribution be in excess of the actual costs to develop the City Facilities or the maximum amount stated hereinabove.

“City Delay” means any delay in completion of construction of the Project resulting from any act or delay of the City, its employees or agents, other than delays resulting from (i) acts that the City or its employees or agents are expressly permitted or obligated to perform pursuant to the City’s police power or pursuant to this Agreement, or (ii) the failure by the City to perform timely any of its obligations under this Agreement, other than those functions of the City acting in its governmental capacity.

“City Facilities” means the public meeting rooms, ballroom, and convention center areas along with related infrastructure, other public facilities and surface parking as set forth in Section 2.1.1(a) and in Exhibit A.

“City Facilities Budget” means the budget for the design, development and construction of the City Facilities prepared by Garfield and approved in writing by both the City and Hotel Owner. The City Facilities Budget and any amendments or changes thereto will only be effective if and to the extent approved in writing by both City and Hotel Owner.

“City Representative” means the City Manager of the City or such other person as may be designated in writing by the City Manager of the City as its representative for the Project.

“City Specialists and Consultants” means the planning, architectural, engineering, interior design and other specialists and consultants engaged by the City to act as its representatives with respect to the Project.

“Completed” means, with respect to any portion of the Project, when the Project Architect certifies in writing to the applicable Party(ies) that the construction of such portion of the Project is substantially completed in accordance with the Development Plan to permit use thereof for the purposes for which it is intended, which date may precede the full completion of all punch list items, landscaping and similar design and development functions.

“Construction Deadline” means the date on which the Construction Phase commences, such date being no later than 60 days after the City Financing Closing, subject to Force Majeure.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "C" Page 1

“Contractors” means, collectively, the General Contractor and its subcontractors for construction of the Project.

“Design and Development Funds” means City-provided funds not to exceed $1,600,000.00 in cash for the payment of Project Development Phase costs of the City Facilities incurred prior to the availability of funds to the City from the City Financing Closing.

“Design Professionals” means the planning, architectural, engineering, interior design and other specialists and consultants engaged by Hotel Owner, Garfield, General Contractor, and/or the City pursuant to the Proposal for the design and construction of the Project, including the Project Architect.

“Development Budget” means, collectively, the Hotel Budget and the City Facilities Budget.

“Development Plan” means the detailed plan concerning the Project and all items which will be required to cause Final Completion of the Project, which shall include, without limitation, the final drawings and specifications, development schedule, and Development Budget established during the Project Development Phase, as approved by the City, as the same shall have been amended as provided herein during the construction phase of the Project.

“FF&E” means those items of furnishings, fixtures, equipment, accessories and materials for use in the operation of the Project or any portion thereof.

“Hotel Budget” means the budget for development and construction of the Hotel, prepared by Garfield and Hotel Owner and approved in writing by the City and the Hotel Owner as same may be modified pursuant to this Agreement and the Hotel Development Agreement with concurrent notice to the City Representative of any such modification.

“Hotel Construction Phase Financing” means those certain tax-exempt bonds or other form of financing issued by the Hotel Owner, upon written approval by Hotel Owner’s Board of Directors, the net proceeds of which will be used for financing 100% of the costs of completing (a) the design, development and construction of the Hotel (including related financing costs, capitalized interest, reserves for debt service and working capital, and related attorneys’ fees and expenses) pursuant to the Hotel Budget and (b) the development and construction of the City Facilities, but only to the extent the actual costs of the City Facilities exceed the amount of the City Contribution.

“Hotel Development Agreement” means that certain hotel development agreement between Hotel Owner and Garfield pursuant to which the Hotel will be developed.

“Hotel Owner” means Baytown Municipal Development District, a political subdivision of the State of Texas and the City.

“Hotel Owner Financing Contribution” means the combined net proceeds from the issuance of the Hotel Construction Phase Financing.

“Hotel Owner Financing Documents” means the trust indenture(s) for the Hotel Construction Phase Financing, any related bond purchase agreement and all other loan agreements, security documents or instruments pursuant to which Hotel Owner Financing Contribution is made.

“Hotel Site” means that portion of the Property on which the Hotel shall be constructed, as described in the Ground Lease.

“Leasehold Mortgagee” means the Trustee appointed pursuant to the Hotel Owner Financing Documents as further described in Section 12.5.4.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "C" Page 2

“Marina Parking Site” means the 1.92-acre parking area adjoining the City Facilities as shown on Exhibit A, which area is subject to an existing parking agreement with the adjoining Marina, which spaces will be public parking spaces open to the public.

“Marina Site Parking Agreement” means the parking rights agreement between the City, as lessor, and Hotel Owner, as lessee, regarding the use of approximately 230 spaces located on the Marina Parking Site.

“Project Architect” means BOKA Powell, LLC.

“Project Development Phase” means the period of time commencing upon the Effective Date of this Agreement and ending on or before the Construction Deadline as such date may be extended by mutual agreement of the Parties, during which the Parties shall diligently attempt to accomplish and mutually agree upon all the matters enumerated in Article 4 hereof.

“Project Funding Deadline” means April 20, 2019, unless such date shall be extended by agreement of Hotel Owner, and the City Representative.

“Property” means the 7.745-acre tract of land situated in the City, Harris County, Texas, owned by the City and more fully described in Exhibit A attached hereto, together with the Marina Parking Site.

2.2.1 Project Development Phase.

(b) Following the execution of the design/build contract for the City Facilities by the City and the design/build contract for the Hotel by the Hotel Owner and subject to Section 3.3.9 hereof, the City shall have available the Design and Development Funds for the design and development costs of the City Facilities as well as the funds for the design and development costs of the Hotel (the “Hotel D&D Costs”). As further provided in Section 3.3.9 herein, Hotel Owner shall pay a hotel design fee to the City in an amount equal to the Hotel D&D Costs up to a maximum of $2,600,000 (the “Hotel Design Fee”) out of the proceeds of the Hotel Construction Phase Financing or other lawfully available source of funds in return for the transfer of any work product resulting from the expenditure of such Hotel D&D costs. The Hotel D&D costs initially paid by the City are in addition to the City’s Contribution. The funds advanced by the City on behalf of the Hotel Owner to cover the Hotel D&D Costs shall be paid in accordance with the procedures set forth in Section 9.1 below.

2.2.2 Closing.

(b) The proceeds of such financing contributions shall be available no later than the Hotel Owner Financing Closing and the City Financing Closing and shall be made available for disbursement as development of the Project proceeds in accordance with the design/build contract or otherwise applied toward the Project as agreed among the Parties in writing.

3.1.1 City Facilities. Garfield shall provide the following services during the Project Development Phase to the City with respect to the City Facilities:

(e) Negotiating, reviewing, evaluating and finalizing the GMP Contracts with the General Contractor, it being understood that it is anticipated that there shall be separate GMP Contracts for (i) the Hotel, and (ii) for the City Facilities. Hotel Owner agrees to retain or cause to be retained the General Contractor pursuant to a GMP Contract for the construction of the Hotel. The City agrees to retain the General Contractor pursuant to a GMP Contract between the City, Garfield and the General Contractor entered into pursuant to the City’s selection under the Request for Proposal issued by the City for the construction of the City Facilities. Garfield shall administer such contract on the City’s behalf as the development manager for the City during the construction phase of the applicable GMP Contract. The contract for the City Facilities shall require the General Contractor to provide payment

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "C" Page 3

and performance bonds in accordance with general Texas law applicable to municipalities and the contract(s) with the Project Architect shall name the City and Hotel Owner as an additional insured and shall provide that the City may, upon Garfield’s or Hotel Owner’s default and termination of this Agreement, enter into a new contract with the Project Architect and General Contractor for the City Facilities. The GMP Contracts must be in an amount equal to or less than the net construction proceeds of the City’s debt obligations and the Hotel Construction Phase Financing, respectively. Any GMP Contract costs exceeding the available bond proceeds shall be funded through the Hotel Construction Phase Financing, subject to termination of this Agreement as set forth in Section 11.1.3; and

3.3.6 Design/Build Contracts. The City, Garfield and the General Contractor shall enter into a design/build contract for the construction of the City Facilities; and Hotel Owner, Garfield and the General Contractor shall enter into a design/build contract for the construction of the Hotel.

3.3.9 Hotel Owner Financing Contribution and City Contribution. On or before 60 days following the Effective Date of this Agreement, the City shall have (i) its Design and Development Funds available for expenditures of the design and development costs of the City Facilities and (ii) funds available for expenditures of the Hotel D&D Costs. Provided, however, that the City shall only expend its Design and Development Funds and funds for the Hotel D&D Costs after the City’s approval of the design/build contract for the City Facilities and the approval by the Hotel Owner of the design/build contract for the Hotel. On or before the Project Funding Deadline and following the development of the budget set forth in the Hotel Development Agreement, the Hotel Owner shall have entered into an agreement for the sale of debt obligations to fund its Hotel Construction Phase Financing and the City shall sell its debt obligations to fund the City Contribution, respectively, such that proceeds of such financing shall be available by the Hotel Owner Financing Closing and the City Financing Closing. Within five (5) days following the funding of the Hotel Construction Phase Financing, the Hotel Owner shall pay to the City the Hotel Design Fee in accordance with Section 2.2.1(b) above.

5.1.2 Payment of Costs. Payment of design and development costs incurred during the Project Development Phase for the City Facilities shall be made by the City pursuant to its normal construction payment procedures. No design and development costs shall be paid by the City prior to the approval of the design/build contracts for the City Facilities and the Hotel. However, when and if the City is obligated to pay in accordance with this Agreement, the design and development costs shall be paid pursuant to Section 9.1.

6.1.5 Delivery Schedule. Garfield shall prepare a projected delivery schedule for goods purchased based on production and delivery dates furnished by suppliers. Garfield shall use reasonable efforts to coordinate the schedule with the construction schedule under the design/build contracts and place purchase orders within sufficient time to allow delivery in accordance with the projected construction schedule.

6.1.6 Records. Garfield shall maintain or cause to be maintained proper, accurate and complete accounting records including competitive bids and proposals, purchase orders, purchasing receipts and disbursements made in connection with the purchase of the FF&E for the City Facilities and the Hotel. Garfield shall make available these records for audit, inspection and copying by the City Representative or Hotel Owner, or any other persons designated by the City Representative or Hotel Owner, upon five (5) business days’ notification. Following Final Completion of the City Facilities or Hotel, as applicable, or termination of this Agreement and/or upon written request of Hotel Owner or City Representative from time to time, Garfield shall deliver to the City Representative or Hotel Owner an electronic copy of all such records. Garfield shall retain an electronic copy of such records for a period of at least three (3) years from Final Completion.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "C" Page 4

7.2. No Limitation on City’s Governmental Functions. Garfield and Hotel Owner recognize the authority of the City under its charter and ordinances to exercise its police powers in accordance with Governmental Rule to protect the public health, safety, and welfare. Such powers extend to Garfield’s or its General Contractor’s construction activities on City property, and Garfield recognizes the City’s authority to take appropriate enforcement action in accordance with Governmental Rule to provide such protection. Whenever, in the City’s judgment such action is required, the City shall immediately notify Garfield (with a copy to Hotel Owner) to resolve the situation. No lawful action taken by the City pursuant to these police powers shall subject the City to any liability under this Agreement, including without limitation liability for costs incurred by the General Contractor, Garfield or Hotel Owner, and as between Garfield and the City, any such costs shall be the sole responsibility of Garfield and the General Contractor.

7.6. Permits. The appropriate City staff and Hotel Owner staff, to the extent applicable, shall execute and cooperate with Garfield and all Contractors in connection with the issuance of all building permit applications, plans of development, utility permit applications, utility easements, requests for certificates of occupancy and such other documents as may reasonably be required for Garfield, Hotel Owner or General Contractor to obtain building permits, licenses, approvals, certificates, utility services and other permits and authorizations as may be necessary for the development, construction and operation of the Project. It shall be the ultimate responsibility of Garfield to secure all such licenses and permits required to be obtained by Garfield, General Contractor or Hotel Owner or the City with respect to construction, completion and occupancy of the City Facilities, including any necessary building, occupancy, sewer and utility permits. Garfield shall secure or cause to be secured all such licenses and permits required to be obtained with respect to the construction, completion and occupancy of the Hotel, including any necessary building, occupancy, sewer and utility permits. Notwithstanding any provision of this Agreement or any other Project Agreement to the contrary, the City covenants and agrees that any and all fees chargeable by the City for building permits, approvals, connection fees, tap fees, and certificates in connection with the development and construction of the Project are hereby waived in their entirety.

9.1. Payment of City Costs. Garfield’s requests for payments that are due and payable on contracts with the contractors for the City Facilities shall be made by Garfield in written draw requests submitted to the appropriate City staff pursuant to an agreed upon draw schedule, which is approved by the City Representative in writing, during the term of this Agreement provided, however, that the City shall not be obligated to pay any draw requests for the City Facilities if construction of the Hotel is not in accordance with the approved project schedule or is not being constructed on a schedule necessary to substantially complete the Project by the date set forth in Section 4.1 herein. The City shall pay costs pursuant to its contract with Garfield and the General Contractor for the City Facilities. Each such draw request shall include documentation of all costs and expenses, including construction value, in reasonably sufficient detail to permit City staff to determine the appropriateness of such reimbursement payment and, with respect to draw requests during the period of construction of the City Facilities, shall include a certification by the Project Architect of the status of completion of the City Facilities in accordance with the Development Plan, and a partial release of mechanic’s liens from the General Contractor with respect to all portions of the Project for which payment to the General Contractor has been made. Once verification of each cost detailed in the draw request has occurred, including on-site confirmation, the draw request shall be forwarded for written approval to the City Representative. After written approval, the draw request shall be submitted to the City’s Finance Department for payment. Progress payments during construction are made within thirty (30) days of receipt of an approved draw request pursuant to City policy, as long as the payment request contains sufficient detail for City approval. The City shall pay the amounts set forth in such draw requests to Garfield and/or General Contractor, as applicable, for their payment to contractors or for the reimbursement of payments previously made to contractors

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "C" Page 5

pursuant to the City’s customary payment process for City construction projects. Hotel Owner shall pay for all cost overruns to the City Facilities Budget, as such City Facilities Budget has been approved by Hotel Owner, solely from the proceeds of the Hotel Construction Phase Financing.

11.1.3 Termination Prior to Project Funding Deadline. The City or Hotel Owner may terminate the Agreement after the Project Agreements Deadline and prior to the Project Funding Deadline and thereupon this Agreement shall be of no further force or effect. Upon a termination during this time period, the Hotel Owner, in connection with the Project, shall pay to the City the Hotel Design Fee in an amount equal to the Hotel D&D Costs incurred up to the date of termination up to a maximum amount of $2,600,000. Further, Garfield and the City specifically acknowledge that the Hotel Owner’s obligations under this section shall not constitute a general obligation of the Hotel Owner or indebtedness under the constitution or laws of the State of Texas. Upon payment of the Hotel Design Fee, Garfield and the City shall convey and Hotel Owner shall receive ownership and possession of all work product produced as a result of the expenditure of the Hotel D&D Costs.

13.4. Procurement of Goods and Services from Historically Underutilized Businesses. In developing and constructing the Project, Garfield agrees to comply and cause the General Contractor to comply with the City’s Good Faith Effort Program.

SECTIONS FROM THE HOTEL DEVELOPMENT AGREEMENT

Section 2.1. Master Development Agreement and Design-Build Agreement Coordination. Owner and Development Manager acknowledge that the Master Development Agreement has been entered into by City, Owner, and Development Manager to outline the overall development of the Project and to cause the engagement by the City of the Development Manager as the City's development manager for the Project in general, and the City Facilities and Parking Facilities Component in particular. Owner and Development Manager further acknowledge that Owner, Development Manager and Design-Builder entered into the DBA for the design and construction of the Hotel in coordination with the design and construction of the City Facilities and Parking Facilities Component under a separate design-build agreement with the City. The management and coordination of the Construction Contingency and Project Contingency between and among the various components of the Project are also covered by the DBA.

Section 2.2. Development Functions. (c) In connection with the performance of its duties hereunder, Development Manager shall endeavor to expedite the development, design, construction and completion of the Hotel; to protect Owner against unnecessary costs, expenses and delays; to maintain close communications and coordination with Owner, the City, the Architect, the Design-Builder and all Design Professionals; and to perform all duties and obligations of Development Manager as set forth in the DBA, communicating timely with Owner as required by the Project Agreements. Development Manager shall use its best efforts to employ and engage qualified Persons and shall cause its employees to devote their personal attention to the Project to the extent reasonably necessary to assure that Development Manager's obligations hereunder and under the Master Development Agreement are fulfilled.

Section 2.3. Acceptance of Engagement. Development Manager hereby accepts engagement by Owner and agrees to act as Owner's independent contractor to perform or cause to be performed all of the obligations of the Development Manager under the DBA and this Agreement, including the following design, construction and development services, subject to the standards and obligations set forth in Section 2.2:

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "C" Page 6

(d) timely cause the Design-Builder to arrange for the Architect's preparation of the preliminary and final schedules, estimates, drawings and specifications in accordance with the DBA and Section 3.1.2(c) of the Master Development Agreement and the direction of Owner and submit the same for approval by Owner;

(h) review, assist and participate with Owner Representative in the review and approval of the Contract Documents in accordance with the DBA;

(q) coordinate with Owner for the approval of expenditures necessary under the DBA, including those for Design Phase Compensation and Construction Phase Compensation and any expenditure from Construction Contingency and Project Contingency as set forth in the DBA;

(aa) prepare, or cause to be prepared, Change Orders originated by Owner or those originated by Development Manager in accordance with this Agreement and evaluate and report to Owner as to Change Orders under the DBA;

(hh) For purposes of this Agreement, the Hotel will be deemed to be complete ("Final Completion") when: (i) all punch list items, as provided by the Development Manager pursuant to Section 2.4(a) hereof, have been completed as required by the Contract Documents under the DBA; (ii) the Hotel has achieved "Final Completion" as described in the Design-Build Agreement; (iii) any remaining FF&E has been installed; (iv) all final permits for the Hotel have been delivered to Owner; (v) all final lien waivers and all bills paid affidavits have been provided to Owner by the Development Manager, the Design-Builder, and the Architect; (vi) all warranties, manuals, as-built drawings, CADD drawings, equipment cuts, operating guides and any other documents necessary for the full operation of the Hotel are delivered to the Owner; and (vii) Development Manager provides a written certification to Owner that all of the foregoing conditions to Final Completion have been satisfied.

Section 2.4. Procurement and Installation of FF&E. (b) The Development Plan prepared by Development Manager with the approval of City Representative and Owner shall include a prototypical schedule setting forth by category the types of FF&E for the Hotel and the City Facilities (the “FF&E Schedule”).

Section 3.1. Approval of Design Development Documents. In accordance with the terms of Section 3.1 of the DBA, the Construction Documents, including all drawings and specifications, and any changes thereto made during the course of this Agreement, shall be subject to the express written approval of Owner, which written approval may be given by email, from Owner. No Work shall commence or be performed until Owner shall have first approved such Design Development Documents or any changes thereto (as applicable) for such Work, such approval not to be unreasonably withheld. Any such Work commenced prior to such approval shall be at Developer’s risk for all costs required to remove and redo such Work which does not conform to previously approved Design Development Documents. Owner shall have five (5) business days in which to review the 100% complete Construction Documents or portion thereof, and five (5) business days in which to approve any change thereto. In the case of a change, all such changes shall be clearly identified by clouding changes in drawings and highlighting changes in text. Notwithstanding anything herein to the contrary, the failure of Owner to approve of the Construction Documents or any changes thereto shall not be construed as a deemed approval thereof.

Section 5.1. Draw Requests. (c) Draw Requests for payment for design or construction services performed by the Design-Builder shall be accompanied by the application for payment submitted to the Development Manager by the Design-Builder for such construction services, with such supporting documentation as required by the Owner. Draw Requests that request payment for construction services performed by other Contractors shall be accompanied by an application for payment in a form approved by the

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "C" Page 7

Owner and shall request payment consistent with such Contractor’s right to payment under the terms of such respective separate construction contract. Except with the consent of Owner, the Draw Request shall not seek payment for retainage Development Manager is entitled to withhold from the Design-Builder or other Contractor under the respective contract.

The structures constituting the components of the Project will be connected with one another as part of an integral whole. Accordingly, the Architect, and many of the subcontractors, will be providing services on more than one portion of the Project and in certain situations a subcontract with a subcontractor may include work on more than one component of the Project. In these situations Development Manager shall cause the Design-Builder to allocate the cost of any such subcontract to accurately reflect the cost of the services performed for that portion of the Project. Development Manager shall provide (or cause the Design-Builder to provide) Owner with the reasons and justifications of each subcontract allocation with the applicable application for payment submitted by the Design-Builder pursuant to the DBA.

Section 8.2. Waiver of Subrogation. Development Manager will require its carrier of property insurance to waive any right of subrogation against Owner. Development Manager waives all rights against Owner for damages caused by risks covered by property insurance required to be procured under Section 11.5 of the DBA to the extent of actual recovery of any insurance proceeds of such insurance.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "C" Page 8

EXHIBIT "D"

SHERATON- THE PROGRAM

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "D" Page 1

EXHIBIT "E"

PRE-IGMP BUDGET

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "E" Page 1

Exhibit E

BAYTOWN, TEXAS HOTEL AND CONVENTION CENTER

Pre-Construction Period Cost Schedule - Page 1 of 2

PRE-DEVELOPMENT PERIOD

Schematic Design (through 9/10/2018) Land Contract Feb-18 Mar-18 Apr-18 May-18 Jun-18 Jul-18 Land (Executed 11/26/12) Land Earnest Money $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Additional EM $/Ext. Fess $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Subtotal$ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ -

Soft Costs Legal Fees $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Architectural & Engineering : Hotel and Conv. Center $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Interior Design and Civil (inc.$ in above) - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - KPFF Reimbursables / developer travel $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Design/Builder Fee $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Owner's Due Diligence Owner's Contingency Market Study Updates $ - $ - $ - $ - $ - $ - $ - $ - $ - $ 10,000 $ - $ - $ - Soil Report - geo tech $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Topo Survey $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Environmental $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - City Permit and Plan Check $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Brand/Operator Tech. Services Fees $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Construction Manager Franchise Application Fee $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ 87,400 Sub-total Soft Costs $ - $ - $ - $ - $ - $ - $ - $ - $ - $ 10,000 $ - $ - $ 87,400

Moodel Room hard costs to DPR FF&E Sub-total Model Room

Developer Fees: Hotel $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Conference Center $ - $ - $ - $ - $ - $ - $ 10,000 $ 10,000 $ 10,000 $ 10,000 $ - $ - Sub-total Developer Fees $ - $ - $ - $ - $ - $ - $ - $ 10,000 $ 10,000 $ 10,000 $ 10,000 $ - $ -

Subtotal $ - $ - $ - $ - $ - $ - $ - $ 10,000 $ 10,000 $ 20,000 $ 10,000 $ - $ 87,400 Monthly TOTALS$ - $ - $ - $ - $ - $ - $ - $ 10,000 $ 10,000 $ 20,000 $ 10,000 $ - $ 87,400 Cumulative TOTALS$ - $ - $ - $ - $ - $ - $ - $ 10,000 $ 20,000 $ 40,000 $ 50,000 $ 50,000 $ 137,400

Sources of Funds: MDD $0 $0 $0 $0 $0 $0 $0 $0 $0 $10,000 $0 $0 $52,440

City of Baytown $0 $0 $0 $0 $0 $0 $0 $10,000 $10,000 $10,000 $10,000 $0 $34,960 $0 $0 $0 $0 $0 $0 $0 $10,000 $10,000 $20,000 $10,000 $0 $87,400

Costs By Phase: Pre-development MDD $0 City $137,400 phase total $137,400

© Garfield Public/Private PRIVILEGED AND CONFIDENTIAL PRINTED 9/14/2018 3:00 PM Exhibit E

BAYTOWN, TEXAS HOTEL AND CONVENTION CENTER

Pre-Construction Period Cost Schedule - Page 2 of 2 DESIGN TOTAL PERIOD Closing/ IGMP NTP FGMP Funding (1/10/19) (1/29/19) (4/10/19) (1/28/19) Schematic Design Design Development (GMP Docs) For Construction Documents (through (through 9/10/2018) (through 11/21/2018) 3/10/2019) Land Contract Aug-18 Sep-18 Oct-18 Nov-18 Dec-18 Jan-19 Feb-19 Mar-19 Apr-19 May-19 Total Land (Executed 11/26/12) Land Earnest Money $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Additional EM $/Ext. Fess $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Subtotal $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Soft Costs $ - Legal Fees $ 75,000 $ 27,500 $ 27,500 $ 27,500 $ 27,500 $ 27,500 $ 27,500 $ 240,000 Architectural & Engineering : $ - Hotel and Conv. Center $ 247,280 $ 297,033 $ 307,414 $ 307,414 $ 306,563 $ 302,625 $ 286,193 $ 2,054,522 Interior Design and Civil (inc.$ in above) - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - KPFF $ 15,000 $ 15,000 $ 15,000 $ 20,000 $ 65,000 Reimbursables / developer travel $ 8,951 $ 3,000 $ 3,000 $ 3,000 $ 3,000 $ 3,000 $ 3,000 $ - $ - $ - $ 26,951 Design/Builder Fee $ 30,000 $ - $ 25,000 $ - $ 25,000 $ - $ 80,000 Owner's Due Diligence $ 5,000 $ 5,000 $ 5,000 $ 5,000 $ 5,000 $ 5,000 $ 5,000 $ - $ - $ - $ 35,000 Owner's Contingency $ 25,000 $ 15,000 $ 15,000 $ 15,000 $ 15,000 $ 15,000 $ 27,639 $ 127,639 Market Study Updates $ 26,000 $ - $ - $ - $ - $ - $ - $ - $ - $ - $ 26,000 Soil Report - geo tech $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Topo Survey $ - $ - $ - $ - $ - $ 10,000 $ - $ - $ - $ - $ 10,000 Environmental $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - City Permit and Plan Check $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Brand/Operator Tech. Services Fees $ 24,385 $ 24,385 24385$ 24,385 $ 24,385 $ 24,385 $ 24,385 $ - $ - $ - $ 170,693 Construction Manager $ 14,662 $ 14,662 $ 14,662 $ 14,662 $ 14,662 $ 14,662 $ 14,662 $ - $ - $ - $ 102,634 Franchise Application Fee $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - Sub-total Soft Costs $ 471,277 $ 401,580 $ 411,961 $ 441,961 $ 396,110 $ 402,172 $ 413,379 $ - $ - $ - $ 2,938,438 $ - Moodel Room $ - hard costs to DPR $ 60,000 $ 60,000 FF&E $ 60,000 $ 60,000 Sub-total Model Room $ 120,000

Developer Fees: $ - Hotel $ 100,416.00 $ 100,416 $ 100,416 $ 100,416 $ 100,416 $ 100,417 $ - $ - $ - $ 602,497 Conference Center $ 66,944 $ 66,944 $ 66,944 $ 66,944 $ 66,944 $ 66,945 $ - $ - $ - $ 401,665 Sub-total Developer Fees $ 167,360 $ 167,360 $ 167,360 $ 167,360 $ 167,360 $ 167,362 $ - $ - $ - $ - $ 1,004,162 $ - Subtotal $ 638,637 $ 568,940 $ 579,321 $ 729,321 $ 563,470 $ 569,534 $ 413,379 $ - $ - $ - $ 4,062,600 Monthly TOTALS $ 638,637 $ 568,940 $ 579,321 $ 729,321 $ 563,470 $ 569,534 $ 413,379 $ - $ - $ - $ 4,062,600 Cumulative TOTALS $ 776,037 $ 1,344,977 $ 1,924,298 $ 2,653,619 $ 3,217,088 $ 3,786,622 $ 4,200,000 $ 4,200,000 $ 4,200,000 $ 4,200,000 $ 4,200,000

Sources of Funds: MDD $402,033 $357,427 $364,071 $383,271 $353,926 $357,807 $264,562 $0 $0 $0 $ 2,545,537

City of Baytown $236,604 $211,513 $215,250 $226,050 $209,543 $211,727 $148,816 $0 $0 $0 $ 1,534,463 $638,637 $568,940 $579,321 $609,321 $563,470 $569,534 $413,379 $0 $0 $0$ 4,080,000

Costs By Phase: Schematic DD's CD's GMP and Closing TOTAL $408,728 $1,201,652 $989,684 $0 $2,600,064 $229,909 $675,929 $556,697 $0 $1,599,936 $638,637 $1,877,582 $1,546,382 $0 $4,200,000

© Garfield Public/Private PRIVILEGED AND CONFIDENTIAL PRINTED 9/14/2018 3:00 PM

EXHIBIT "F"

INSURANCE REQUIRED OF DESIGN/BUILDER (WITH WRAP-UP PROGRAM)

INSURANCE REQUIRED OF DESIGN/BUILDER (WITH WRAP-UP PROGRAM)

The Design/Builder shall purchase and maintain in effect at all time during the during the full term of the Agreement, insurance policies providing the coverages specified below, subject to the terms, conditions and exclusions stated in such policies. Design/Builder shall implement a Contractor Controlled Insurance Program ("CCIP") which includes all liability coverages and Worker's Compensation with limits set forth below with insurers authorized to do business in the State of Texas. The purpose of the CCIP will be to provide consistent coverage and consistent claims management for all enrolled subcontractors and Subsubcontractors. Builder's Risk will be obtained and maintained by Design/Builder separately from the CCIP. These insurance requirements are in addition to all insurance requirements set forth in the Agreement for the Project. "Owner," "lndemnitee," "lndemnitees" and "Design/Builder'' shall each have the meanings set forth in the Agreement.

CCIP COVERAGES REQUIRED:

1. Workers Compensation/Employers ' Liability Workers' Compensation Insurance with statutory limits as required by the Labor Code of the State of Texas and Employer's Liability Insurance with limits of $1,000,000 per each accident, $1,000,000 disease policy limit, and $1,000,000 occupation disease per employee. Worker's Compensation coverage shall be based on proper reporting of classification codes and payroll amounts and filing of any coverage agreement which meet the statutory requirement of the Texas Labor Code and shall apply to all employees of the Design/Builder and any Subcontractor(s) and Subsubcontractors Design/Builder shall cause all insurers providing workers compensation insurance to waive all rights of subrogation against Owner and lndemnitees. provided such waiver shall be limited to claims arising under the workers compensation policy only.

2. Commercial General Liability Commercial General Liability with limits of $2,000,000 per occurrence for bodily injury, personal injury and property damage. Aggregate policy minimum of $4,000,000 will include coverage for, but is not limited to, Premises-Operations, Broad Form Contractual Liability, Broad Form Property Damage, Products and Completed Operations, Personal Injury, Use of Contractors and Subcontractors, and Explosion Collapse and Underground (XCU) coverage. A general aggregate loss limit per project endorsement will also be required. Coverage under this policy shall be on an "occurrence" basis. Products and Completed Operations coverage shall be maintained for ten years after the date of Substantial Completion.

3. Commercial Auto Liability Automobile Liability Insurance with a coverage limits of $2,000,000 Combined Single Limit. Coverage shall include all owned, hired, and non-owned vehicles used in performance of the proposed contract. The combined coverage limits of this insurance shall include bodily injury (including death) and property damage.

4. Excess Liability Excess Liability coverage with a limit of $50,000,000 per occurrence/$50,000,000 aggregate, to follow form of the Design/Builder's Commercial General Liability, Employer's Liability and Automobile Liability policies.

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5. Pollution Liability Design/Builder shall maintain Pollution Liability covering the Design/Builders liability for bodily injury, property damage and environmental damage resulting from pollution and related cleanup costs incurred, arising out of the work or services to be performed under this contract. Coverage shall be provided for both work performed on site, as well as during the transport of any hazardous materials. Limits of $2,000,000 shall be provided.

6. Contractor's Professional Liability Design/Builder shall provide and maintain Professional Liability coverage with limits of $3,000,000 each claim/$3,000,000 annual aggregate, issued by an insurance carrier approved in advance by Owner and licensed, or otherwise authorized as a surplus lines insurer, to provide such coverage in Texas to insure from and against all negligent acts, errors, and omissions in the professional services performed by Design/Builder, its agents, representatives, employees, Subcontractors and/or Subsubcontractors provided, however, that Architect shall supply Professional Liability insurance separately and independently of Design/Builder. This coverage shall provide full prior acts coverage or a retroactive date not later than the date the services are first performed by or for Design/Builder in connection with the Project. This insurance shall be maintained until all claims arising out of the Work are barred by applicable statutes of limitation or repose.

The Owner and all Indemnitees shall be provided additional insured status on the CCIP General Liability and Excess Liability policies. Additional insured status will also apply to the Contractor’s Pollution Liability and Auto Liability policies provided by the Design-Builder.

COVERAGES REQUIRED OF DESIGN-BUILDER, SUBCONTRACTORS, SUBSUBCONTRACTORS ANO MATERIAL SUPPLIERS FOR NON-CCIP AND OFF-SITE EXPOSURES

Design-Builder must provide coverages as set forth below for off-site work or Work not covered by the CCIP. Subcontractors at all tiers shall be required to provide the coverages set forth in the Subcontract Attachment A and the Insurance Manual for the CCIP, which is attached to this agreement as Exhibit G.

The insurance coverages (with the policy limits) require dare as follows :

Insurance Policy Limits Worker’s Compensation/Employers' Liability Insurance Statutory/$1,000,000, $1,000,000, $1,000,000 Commercial General Liability ("CGL") $1,000,000 each occurrence/$2,000,000 annual general aggregate/$2,000,000 products-completed operations aggregate Coverage shall be primary and non-contributing with any other insurance available to Owner. Automobile Liability $1,000,000 each accident Excess Liability $5,000,000 each occurrence/combined aggregate In excess of limits specified for Employer's Liability, Commercial General Liability and Automobile Liability. Pollution Liability $1,000,000 per occurrence/$1,000,000 annual aggregate (if coverage is on an occurrence policy form) and $1,000,000 per claim/$1,000,000 annual aggregate (if coverage is on a claims made policy form) Coverage shall be provided for a minimum of five (5) years following Substantial Completion. Construction Equipment Each Subcontractor, Subsubcontractor, vendor and supplier providing work shall provide their own insurance coverage for all construction equipment, tools, apparatus, machinery, scaffolding, hoists, forms, staging, shoring and similar items ("Construction Equipment"). This coverage shall include an endorsement waiving the insurer's right of subrogation against the Design/Builder, Owner and Development Manager.

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Owner and lndemnitees as defined in the Agreement shall be included as additional insureds on general liability policies using ISO Additional Insured Endorsements CG 20 10 07 04 "Additional Insured - Owners, Lessees or Contractors - Scheduled Person or Organization" and Form CG 20 37 07 04 "Additional Insured - Owners, Lessees or Contractors - Completed Operations" (or endorsements providing equivalent coverage). The CGL policy shall provide for full separation of insureds and shall not include any insured v. insured exclusions or limitations. The Owner and Indemnitees shall also be added as additional insureds to the contractor’s pollution liability and auto liability policies.

Design-Builder shall furnish to Development Manager and Owner, certificates of insurance giving evidence that the coverages required are in force. Policies shall be required to give Owner and Development Manager not less than thirty (30) Days prior written notice in the event of cancellation or non-renewal. At Owner or Development Manager’s written request, insurance certificates for Subcontractors and parties enrolled in the CCIP will be provided by Design-Builder. Owner may waive or otherwise modify the coverages to be provided by individual Subcontractors. Subsubcontractors, vendors or suppliers upon written application by Design-Builder in advance of the Subcontractor, consultant, vendor or supplier beginning any work on the Project. No modification will be enforceable if not provided by Development Manager in writing.

All policies required, except Worker's Compensation and professional liability, shall be endorsed to include waivers of subrogation in favor of Owner. Insurance policies must be placed with carriers having an A.M. Best's Guide rating of A minus VII or better. Subcontractors and Subsubcontractors , performing any Work on the Project shall fully comply with the requirements of Design/Builder's CCIP and any administrative materials in support thereof.

BUILDER'S RISK:

1. GENERAL: As per Article 11.5 of this Agreement, Builder's Risk coverage shall be purchased by the Design/Builder.

2. INSTALLATION FLOATER/BOILER AND MACHINERY. Within the Builder's Risk Policy, Design/Builder shall provide insurance to cover machinery and equipment of all kinds during transit, installation and testing at the Project. Such insurance shall provide coverage on an "All Risk" basis from any external cause not otherwise excluded from the policy, door to door, irrespective of conveyance, with limits set to be the maximum any one shipment inclusive of freight. Critical items refers to cargo that, if damaged by a peril insured against. might cause a delayed start-up to the project because of the length of time required to replace or repair an entire item. Coverage shall start when the items to be installed are transported to Project and shall remain in place until Substantial Completion. This policy shall contain an endorsement that the policy is primary to any other insurance available to Owner with respect to claims arising under this Agreement.

The Builder's Risk and Installation Floater insurance shall include as additional named insureds the Owner, Development Manager, Bond Trustee, Design/Builder, Subcontractors and Subsubcontractors.

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EXHIBIT "F"

INSURANCE REQUIREMENTS TO THE SUBCONTRACT AGREEMENT BETWEEN DPR CONSTRUCTION, A GENERAL PARTNERSHIP AND

DPR Job #: This Attachment is incorporated into the above referenced Subcontract between the parties, as the parties’ desire to amend said document. If the Prime Contract imposes additional or higher standards, Subcontractor shall meet those as well. Where a Controlled Insurance Program (“CIP”) is specified in the Prime Contract or elsewhere in the Subcontract Documents, the Insurance Requirements in this Attachment A shall not apply to coverages supplied by the CIP, but shall apply to coverages which Subcontractor is required to carry outside the coverage of the CIP. In the event of any conflict, inconsistency or ambiguity between the provisions of this Attachment A and the Prime Contract, the more stringent, greater and or broader Subcontractor insurance requirements, limits, and coverages shall govern. Immediately send a copy of this information to your insurance broker for compliance. 1.0 Certificates of Insurance. Prior to Work commencing under this Subcontract, Subcontractor shall furnish to DPR certificates of insurance and attach all required policy endorsements providing additional insured coverage and permitting waiver of subrogation, as evidence of insurance required herein. Renewal certificates shall be provided to DPR, prior to expiration of the policy(ies). The certificates are to be signed by a person authorized by the insurer(s) to bind coverage on their behalf. All policies shall include that there will be no cancellation, suspension, non-renewal, or reduction of coverage without thirty (30) Days prior written notice to the Subcontractor. Subcontractor shall provide DPR with written notification of such cancellation, non-renewal, or modification no later than five (5) Days after receipt of insurer’s notice so that DPR has had at least twenty-five (25) Days’ notice before the policy is modified or cancelled. In lieu of the Subcontractor notification process to DPR for written notice of cancellation, non-renewal, or modification, DPR will accept a policy endorsement issued by each insurer providing agreement to issue thirty (30) Days prior written notice of cancellation or modification direct to DPR. If Subcontractor fails to give such notice to DPR or DPR is subject to damage or a claim because the insurance required by this Subcontract is not in effect or no longer complies with the requirements of this Subcontract, then Subcontractor shall indemnify and defend Owner, Owner’s Indemnitees and DPR against such damage or claim to the extent not covered by Subcontractor’s insurance. Receipt by DPR of a non-conforming certificate of insurance or policy without objection, or DPR’s failure to collect a certificate of insurance shall not waive or alter Subcontractor’s duty to comply with the insurance requirements. 2.0 Mandatory Insurance Coverage. Subcontractor shall, at its own expense, maintain in effect at all times during the performance of the Work under the Subcontract not less than the following coverage and limits of insurance. The coverage and limits set forth below are the minimum acceptable to DPR. In specifying minimum Subcontractor insurance requirements, DPR does not represent that such insurance is adequate to protect Subcontractor from loss, damage or liability arising from its work. Subcontractor is solely responsible to inform itself of types or amounts of insurance it may need beyond these requirements to protect itself. Notwithstanding anything to the contrary in the Subcontract or in this Attachment A, if the Subcontractor has procured any insurance coverage and/or limits (either primary or on an excess basis) that exceed the minimum acceptable coverage and/or limits set forth in this Attachment A or elsewhere in the Subcontract, the broadest coverage and highest limits actually afforded under the applicable policy(ies) of insurance shall be considered the coverage and limits that are required by this Agreement and such coverage and limits shall be provided in full to the additional insureds and indemnified parties under this Agreement. The Parties expressly intend that the provisions set forth in the Subcontract and in this Attachment A shall be construed as broadly as permitted to be construed by applicable law to afford the maximum insurance coverage available under the Subcontractor’s insurance policies. 2.1 Workers' Compensation and Employer's Liability. As required by any applicable law or regulation. Employer's Liability/Stop Gap Insurance shall be provided in amounts not less than: $1,000,000 each accident for bodily injury by accident $1,000,000 policy limit for bodily injury by disease $1,000,000 each employee for bodily injury by disease If there is an exposure of injury to Subcontractor's employees under the U. S. Longshoremen's and Harbor Workers' Compensation Act, the Jones Act or under laws, regulations or statutes applicable to maritime

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employees, coverage shall be included for such injuries or claims. Subcontractor shall voluntarily provide workers’ compensation coverage for proprietors, partners, or others not statutorily required to maintain workers’ compensation insurance. 2.1.1 Leased Employees. Use of leased employees by Subcontractor is expressly prohibited without DPR’s written permission. If permitted by DPR, Subcontractor shall: 2.1.1.1 Provide DPR with a complete copy of its Agreement with the Leasing Company; 2.1.1.2 Require that Leasing Company provide workers’ compensation, employers’ liability and commercial general liability with coverage limits in amounts no less than Subcontractor insurance requirements for the same coverages. 2.1.1.3 Require that Leasing Company provide Alternate Employer Endorsement naming DPR as alternate employer on Leasing Company’s workers’ compensation policy. 2.1.1.4 Require that Leasing Company add DPR as an additional insured on its commercial general liability insurance policy subject to the same terms as Subcontractor insurance requirements, including primary and non-contributory wording. 2.1.1.5 Require that Leasing Company provide waiver of subrogation in favor of DPR on both Leasing Company’s workers’ compensation and commercial general liability insurance policies. 2.1.1.6 Provide DPR with a copy of the Leasing Company’s certificate of insurance, with endorsements, evidencing the required coverage. 2.2 Commercial General Liability. Covering operations by or on behalf of Subcontractor, with coverage on an occurrence basis, and shall be subject to terms no less broad than the Insurance Services Office (“ISO”) Commercial General Liability Form CG0001 (2004 or later edition) Coverage shall include, but not limited to, liability arising from premises, operations, independent contractors, products-completed operations including construction defect, contractual liability, personal injury and advertising injury. The commercial general liability coverage shall be endorsed to include terms no less broad than ISO form CG 2274 (Limited Contractual Liability Coverage for Personal and Advertising Injury). There shall be no limitations or exclusions of coverage beyond those contained in the ISO Commercial General Liability Form. The commercial general liability policy shall not be issued under a “claims-made” policy form or a “modified occurrence” policy form. In addition to procuring and maintaining commercial general liability insurance for the duration of the Work, Subcontractor agrees to continue to procure and maintain products-completed operations liability insurance coverage for the applicable period of statutory limitation of claims (or statute of repose, if applicable) after the Project completion. All required terms and conditions of coverage shall be maintained during this completed operations period, including the minimum required coverage limits and the requirement to provide additional insured coverage for completed operations. 2.2.1 Minimum Limits of Liability – (Refer to Appendix 1 – Trade Category List) Category I, II, and III Trades $2,000,000 each occurrence Bodily Injury and Property Damage $2,000,000 Personal and Advertising Injury $2,000,000 aggregate for Products - Completed operations $2,000,000 general aggregate Category IV Trades $1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury $2,000,000 aggregate for Products - Completed operations $2,000,000 general aggregate 2.2.2 Per Project General Aggregate. The policy must have an endorsement providing that the general aggregate limit applies separately to this project. If a per-project aggregate is not provided, the total aggregate limit of liability shall be $5,000,000. 2.3 Automobile Liability. Covering all owned, hired, and non-owned automobiles in limits of liability not less than $2,000,000 each accident, combined single limit. Coverage shall include liability for bodily injury and property damage arising from the use or operation of any auto, including those owned, hired or otherwise operated or used by or on behalf of Subcontractor. The coverage shall be subject to terms no less broad than ISO Business Auto Coverage Form CA 0001 (1990 edition or later). 2.4 Subcontractor’s Equipment/Property Insurance. Subcontractor will provide full coverage for damage to all of Subcontractor’s own equipment, property, and tools used in the Work.

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3.0 Other Required Insurance Coverage where Exposure Exists. The following insurance shall be required by the Subcontractor and sub-subcontractors to the extent that such activities exist in the performance of Work under this Subcontract. Limits of liability for policies listed below shall supersede the limits listed under Section 2.2.1: 3.1 Watercraft Liability and Indemnity Insurance. Should any of the Subcontractor’s Work be performed on or over navigable waterways or involves the use of any vessel, limits for this coverage are to be provided and approved by DPR in writing. 3.2 Aircraft Liability. Should the Subcontractor’s Work include using any owned, leased, chartered, or hired aircraft of any type (including unmanned aerial vehicles and helicopters) on the Project, minimum limits in an amount not less than $10,000,000 per occurrence including Passenger Liability (for other than unmanned aerial vehicles) shall apply. Coverage shall include Aircraft Damage and Slung Cargo. 3.3 Railroad Liability. If Work is performed within 50 feet of a railroad right-of-way or affecting railroad property, including but not limited to tracks, bridges, tunnels, and switches, Subcontractor’s general liability coverage shall be endorsed to include terms no less broad than ISO form CG 2417(Contractual Liability Railroads). Furthermore, at DPR’s option and when required by the Owner or the railroad, Railroad Protective Liability insurance shall be procured. Limits for Railroad Protective Liability insurance are to be provided and approved by DPR in writing. 3.4 Crane Services Liability. Should Subcontractor's Work include providing crane services, then the commercial general liability policy shall be amended to apply with minimum limits of liability to insure against bodily injury and property damage arising from such crane operations. The policy shall include coverage for Rigger’s Liability and shall not exclude coverage for damage to property being lifted. If not included in required limits specified below, Rigger’s Liability shall be provided in limits not less than the maximum value of property lifted at any one time. DPR will accept a separate Rigger’s Liability policy in lieu of Subcontractor’s provision of this coverage under its Commercial General Liability policy. $10,000,000 each occurrence Bodily Injury and Property Damage $10,000,000 Personal and Advertising Injury $10,000,000 aggregate for Products - Completed operations $10,000,000 general aggregate Subcontractor's coverage for crane services may be provided either by Subcontractor's own policy(ies), or by the policy(ies) of a lower tier contractor providing such crane services for Subcontractor. The policy shall include a “Per Project General Aggregate” pursuant to Section 2.2.2. 3.5 Professional Liability. If Subcontractor or any sub-subcontractor of any tier is providing any professional services, including but not limited to, design, architecture, engineering, testing, surveying, or design/build services on the Project, Subcontractor shall provide Professional Liability insurance with minimum limits of $2,000,000 per Claim / Aggregate. If coverage is issued on a claims-made form, such coverage shall apply with a retroactive date to reflect the date in which professional services commenced under this Subcontract or else include an Extended Reporting Period for the equivalent number of years. Subcontractor agrees to continue to procure and maintain professional liability insurance coverage meeting these requirements for the applicable period of statutory limitation of claims (or statute of repose, if applicable) after the Project completion. If Subcontractor’s Work includes environmental, engineering, or consulting services involving Hazardous Materials, coverage shall not exclude such services. 3.6 Contractor's Pollution Liability. 3.6.1 Microbial Matter: Mold, Fungi, & Bacteria (Refer to Appendix 1–Trade Category List). 3.6.1.1 Category I Trades – If Subcontractor's commercial general liability policy has an exclusion for losses due to microbial matter, including molds, fungi or bacteria, minimum limits of liability of $2,000,000 per occurrence and $2,000,000 aggregate shall apply to include coverage for mold, fungus, or bacteria. 3.6.1.2 Category II Trades - If Subcontractor's commercial general liability policy has an exclusion for losses due to microbial matter, including mold, fungi or bacteria, and it or one of its sub- subcontractors are performing work that is associated with keeping moisture out of the building, work that penetrates the building enclosure, or work with liquid conveying piping systems inside the building, minimum limits of liability of $2,000,000 per occurrence and $2,000,000 aggregate shall apply to include coverage for microbial matter, including mold, fungus or bacteria. 3.6.1.3 Category III & IV Trades – Subcontractor is not required to provide Microbial Matter, Mold, Fungi, or Bacteria Coverage. 3.6.2 Environmental Services. If Subcontractor’s Work or its sub-subcontractor’s work includes Environmental Services, contractor’s pollution liability insurance shall be provided by Subcontractor on an occurrence basis, with limits of not less than $2,000,000 per occurrence and $2,000,000 aggregate or as specified by Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "F" Page 3

Owner. “Environmental Services” means any contact with a Hazardous Material, including abatement, removal, remediation, transporting, or disposal of a Hazardous Material or working in areas where contact with such Hazardous Materials may take place. “Hazardous Material” means asbestos, asbestos containing material, lead (including lead-based paint), PCB, silica, silica dust, molds and microbial matter, any other chemical, material, or substance subject to regulation as a hazardous material, hazardous substance, toxic substance, or otherwise, under applicable federal, state, or local law; and any other chemical, material, or substance that may have adverse effects on human health or the environment. 3.6.3 Automobile Pollution Liability. If Subcontractor or its sub-subcontractors of any tier haul or otherwise transport Hazardous Materials, automobile liability limits of at least $2,000,000 combined single limit each accident including the broadened pollution liability coverage endorsement (CA 99 48) and MCS 90 endorsement. In lieu of this coverage, DPR shall consider, as an alternate, a transportation coverage endorsement extension from Subcontractor or its sub-subcontractors’ respective contractor’s pollution liability policy to cover this requirement and Subcontractor shall provide copies of such endorsements and policy for review and approval by DPR. 3.6.4 If coverage required in Section 3.6 is issued on a claims-made form, such coverage shall apply with a retroactive date to reflect the date in which Work commenced under this Subcontract. Coverage shall also be maintained continuously for the applicable period of statutory limitation on claims after the Project completion or else include an Extended Reporting Period for the equivalent minimum number of years. 4.0 Acceptance by DPR. The required insurance shall be subject to the approval of DPR. Such insurance shall be maintained under forms of policies and from companies satisfactory to DPR and Owner. The insurance company must have a financial rating of at least A-VII as defined by A.M. Best Company and must be authorized to transact business in the state where Work is being performed. Certified copies of policies, including all endorsements, shall be provided to DPR within ten (10) Days of a request. Any acceptance of policies or certificates of insurance by DPR, or failure of Subcontractor to provide policies or certificates of insurance, shall in no way limit or relieve Subcontractor of its duties and responsibilities in this Agreement. 5.0 Additional Insured Endorsement and Primary Insurance Clause. Subcontractor agrees to name Owner and DPR, DPR’s joint venture partner and joint venture, if one exists, including their officers, partners, agents, employees, affiliates, parents and subsidiaries, as an additional insured under the Subcontractor’s commercial general liability insurance policy and all other liability insurance policies with the exception of the professional liability policy, with respect to liability arising out of activities, “operations” or “work” performed by or on behalf of Subcontractor, including DPR’s general supervision of Subcontractor, and products and completed operations of Subcontractor. Further, Subcontractor agrees to also name Owner and its subsidiaries and affiliates, and their respective directors, officers, employees and agents. and other entities, if any, DPR is obligated to name as additional insured pursuant to the provisions of the Prime Contract (hereinafter referred to as the “Additional Insureds”). To the maximum extent permitted by law, the coverage provided to the Additional Insureds under the commercial general liability policy shall be provided by a policy provision or an endorsement which is as least as broad as CG 20 10 07 04 (ongoing operations) in combination with CG 20 37 07 04 (completed operations). Notwithstanding the foregoing, Subcontractor shall provide ISO Form B - CG 20 10 11 85 or equivalent coverage where available from its carrier. The additional insured coverage for completed operations shall be maintained during the applicable period of statutory limitation on claims (or statute of repose, if applicable). If any policy provided in compliance with this Attachment A states that the insurance afforded to an Additional Insured will not be broader than that required by contract, or words of similar meaning, the Subcontractor agrees that nothing in this Attachment A is intended to restrict or limit the breadth of such insurance. Samples of Policy Endorsements are included at the end of this Attachment. Such policy provision(s) or endorsement(s) shall further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the Additional Insureds. The parties further agree that the obligations set forth and arising under this Section 5.0 are separate and independent of the obligations set forth and arising under Section 15 of the Subcontract and are not intended to mirror one another in terms of the scope of the obligations created. 6.0 Waiver of Subrogation. Subcontractor shall waive, and shall require (by endorsement or otherwise) all its insurers to waive subrogation rights against DPR and other Additional Insureds for losses paid under the insurance policies required by this Subcontract or other insurance applicable to the Subcontractor or its sub-subcontractors. The waiver shall apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance maintained by the Subcontractor or its sub-subcontractors. Where permitted by law, Subcontractor shall require similar written express waivers subrogation and insurance clauses from each of its subcontractors of every tier. If the policies of insurance referred to in this paragraph require an endorsement to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed. Samples of policy endorsements are attached at the end of this Attachment. Subcontractor agrees to hold harmless and indemnify DPR and other Additional Insureds for any loss or expense incurred as a result of Subcontractor’s failure to obtain such waivers of subrogation. 7.0 Umbrella/Excess Liability. The limits required by this Attachment A can be met by either providing a primary policy or in

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "F" Page 4

combination with umbrella / excess liability policy(ies). To the extent that umbrella/excess coverage is used to satisfy the limits of coverage required hereunder, the terms of such coverage shall be follow form to, or otherwise at least as broad as, the primary underlying coverage, including amending the "other insurance" provisions as required so as to provide additional insured coverage on a primary non-contributory basis. 8.0 Deductibles/Self Insured Retentions. Any self-insured retention or deductible in excess of $10,000 must be declared and is subject to DPR’s approval. Funding of deductibles and/or self-insured retentions maintained by Subcontractor shall be the sole responsibility of Subcontractor, including any deductible or self-insured retentions applicable to coverage afforded to DPR or other required Additional Insureds. 9.0 Insurance Requirements for Sub-subcontractors. The Subcontractor shall ensure that its sub-subcontractors of any tier shall procure and maintain insurance that complies with the requirements set forth in this Attachment A, including the additional insured, primary and non-contributory and waiver of subrogation requirements. Copies of the certificate(s) must be provided prior to the sub-subcontractors entering the site. 10.0 Subcontractor’s duty to provide the insurance coverage set forth in this Subcontract is severable from its indemnification obligations of Section 15 of this Subcontract. Nothing in these insurance requirements shall be deemed to limit Subcontractor’s liability under this Subcontract. The insurance requirements are set forth as minimum amounts and shall not be construed to relieve Subcontractor for liability in excess of such coverage, nor shall it preclude DPR from taking such actions, as is available to DPR, under any other provisions of this Subcontract. 11.0 Failure of Subcontractor to maintain the required insurance shall constitute a material breach entitling DPR to terminate the Subcontract for default, withhold payment, and/or purchase the required insurance at Subcontractor’s expense. Any delays in the completion of the Work due to Subcontractor’s failure to obtain or maintain insurance shall be treated as delay due to Subcontractor’s breach of contract. 12.0 Builders Risk (Property in the Course of Construction). To the extent required by the Prime Contract, DPR and Subcontractor waive all rights against each other and against all other subcontractors and Owner for loss or damage to the extent reimbursed by Builder’s Risk or any other property or equipment insurance applicable to the Work, except such rights as they may have to the proceeds of such insurance. If the policies of insurance referred to in this Section require an endorsement or consent of the insurance company to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed or obtain such consent. Upon written request of Subcontractor and if available to DPR, DPR shall provide Subcontractor with a copy of the Builder’s Risk policy of insurance or any other property or equipment insurance in force for the project and procured by DPR. Subcontractor shall satisfy itself as to the existence and extent of such insurance prior to commencement of Subcontractor’s Work. If Builder’s Risk insurance or any other property or equipment project-specific insurance purchased by Owner or DPR provides coverage to Subcontractor for loss or damage to Subcontractor’s Work, Subcontractor shall be responsible for the insurance policy deductible amount applicable to the loss or damage to Subcontractor’s Work and/or the damage to other work caused by Subcontractor. If not covered under the Builder’s Risk policy of insurance or any other property or equipment insurance required by the Agreement, Subcontractor shall procure and maintain at its own expense insurance for all such other property and equipment (whether owned, leased or rented) and any portions of Subcontractor’s Work stored off the site or in transit. If Owner or DPR has not purchased Builder’s Risk or equivalent insurance including the full insurable value of Subcontractor’s Work, then Subcontractor may procure such insurance at its own expense as will protect the interests of Subcontractor and its sub-subcontractors in the Work. Such insurance shall also apply to any of Owner’s or DPR’s property in the care, custody, or control of Subcontractor. If there is a loss insured under the Builder's Risk policy, Subcontractor is responsible for providing all documentation required or requested by the insurance company or companies issuing the Builder’s Risk policy in order to substantiate Subcontractor’s claim, and Subcontractor is bound by any adjustment made between DPR or Owner and the insurer(s). DPR’s liability to Subcontractor for any such loss is in all cases limited to amounts actually paid by the insurer(s) for Subcontractor’s claims. Nothing in this paragraph affects any provisions regarding coverage or waivers of subrogation in the Subcontract Documents

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "F" Page 5

Appendix 1 to Attachment A Insurance Requirements by Trade

Trade Category I Full Insurance & Mold Requirements

Infection Control Lath & Plaster Tilt-Up Concrete Tile Glass-Fiber-Reinforced Concrete Louvers & Vents Stone/Marble (Adhered) Environmentally Controlled Rooms Stone/Marble (Mechanically Fastened) Clean Rooms Expansion Control Pre-Engineered Structures Dampproofing and Waterproofing Hydraulic Elevators and Lifts Exterior Insulation and Finish Systems (EIFS) Process Piping Metal Roof and Wall Panels Medical Gases Roofing Fire Protection Flashing and Sheet Metal Joint Pre-Action Fire Suppression Sealants Plumbing Entrances and Storefronts Heating Ventilating Air Conditioning Automatic Entrance Doors Electrical Windows - Wood & Vinyl Instrumentation & Controls Skylights Building Systems Controls Glass & Glazing (Exterior) Site Remediation & HazMat Abatement

Trade Category II Full Insurance & Conditional Mold Requirements

Groundwater Treatment Systems Concrete Restoration and Cleaning Demolition Masonry Dewatering Wood Framing Tunneling, Boring and Jacking Glass & Glazing (Interior) Fountains & Water Features Specialty Glazing Framing Landscaping & Irrigation & Drywall Painting & Cast-in-Place Concrete (Contractors) Wallcovering Pneumatically Placed Concrete (Shotcrete) Commercial Laundry & Dry Cleaning Food Sand & Water Blasting Service Equipment Precast Concrete Residential Laundry/Kitchen Equipment Cementitious Decks and Underlayment Swimming Pools and Spas

Trade Category III Full Insurance & No Mold Requirements

Testing & Inspection Services Traffic Signs & Signals Const. Elevator/Hoist/Cranes Asphalt Concrete Paving Scaffolding Paving Specialties Concrete Construction Aids Unit Pavers Traffic Control Athletic and Recreational Surfaces Jobsite Security Guard Service Survey Fences and Gates & Layout Retaining Walls Machinery & Equipment Moving (Rigging) Structural Excavation & Backfill Shoring and Underpinning Concrete Formwork (Non-Skin) Earthwork Concrete Accessories Concrete Soil Stabilization & Erosion Control Reinforcement Soil Treatment Post-Tensioning Driven Piles Concrete Pump Site Utilities Concrete Finishing Site Utilities (Dry) - Electrical & Tel/Data

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "F" Page 6

Trade Category III Full Insurance & No Mold Requirements (continued)

Granite Countertops Access Flooring Welding Fabric/Canvas Awnings Canopies Structural Steel Operable Partitions Structural Steel Erection Storage Shelving Metal Joists/Trusses Sun Control Devices Metal Deck Window Washing Equipment Channel Frame Strut Theater and Stage Equipment Miscellaneous Metals Retail Fixtures & Showcases Metal Stairs & Ladders Loading Dock Equipment Handrails and Railings Athletic, Recreation, & Therapy Equipment Ornamental Metal Laboratory Equipment Finish Carpentry & Millwork Lab Equipment Salvage Plastic Fabrications Medical Equipment Traffic Coatings Lab & Medical Casework Systems Building Insulation Manufactured Wood Casework Fireproofing Furniture Fire stopping Multiple Seating Metal Doors, Frames & Hardware Doors, Radiation Protection Frames & Hardware - Installation Doors - Tennis Court Construction Packaged (Total Doors) Escalators and Moving Walks Wood and Plastic Doors Non-Hydraulic Elevators and Lifts Specialty Doors Conveyors Coiling Doors and Grilles Chutes Acoustical Ceilings Pneumatic Tube Systems Floor Treatment & Coatings Hoists and Cranes Specialty Flooring High Purity QAQC Wood Flooring Testing, Adjusting and Balancing Resilient Flooring Communications Carpet & Resilient Flooring Fire Alarm Systems Acoustical Wall Treatment Security Systems Special Coatings (Epoxy Coatings) Audio Visual System Intumescent Fireproofing

Trade Category IV Minimum Insurance & No Mold Requirements

Temporary Facilities and Controls Signage Jobsite Trailer Rental & Lease Fire Extinguishers/Cabinets Temporary Barriers, Enclosures & Fencing Lockers Product Delivery Requirements Postal Specialties Equipment Suppliers Audio-Visual Equipment Cleaning Parking Control Equipment Site Furnishings Rugs and Mats Pavement Markings Window Treatments Concrete Ready Mix Toilet Partitions & Compartments Lumber Suppliers Cubicle Track & Curtains Prefabricated Structural Wood Roof Flagpoles Accessories Wall & Corner Guards Wire Access Doors and Panels Mesh Partitions Telephone Specialties Specialties Toilet & Bath Chalkboards & Markerboards Accessories Shower & Tub Door

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "F" Page 7

ISO I Commercial General Liability Forms I 07/01/04

POLICY NUMBER: CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE

Name Of Additional Insured Person(s) Or Organization(s): Location And Description Of Completed Operations

DPR Construction, A General Partnership, its joint venture and joint venture partner, where applicable, its/their officers, owners, employees, agents, parents, partners, subsidiaries and affiliates; the Owner and any person or organization that Owner requires by written contract

Owner and its subsidiaries and affiliates, and their respective directors, officers, employees and agents.

Information required to complete this Schedule, if not shown above, will be shown in the Declarations.

Section II -- Who Is An insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the schedule of this endorsement performed for that additional insured and included in the "products-completed operations hazard"

G.20.37.07 04 © ISO Properties, Inc., 2004 ©ISO Properties, Inc.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "F" Page 8

ISO I Commercial General Liability Forms I 07/01/04 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 10 07 04

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION

This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE

Name Of Additional Insured Person(s) Or Organization(s): Location(s) Of Covered Operations

DPR Construction, A General Partnership, its joint venture and joint venture partner, where applicable, its/their officers, owners, employees, agents, parents, partners, subsidiaries and affiliates; the Owner and any person or organization that Owner requires by written contract

Owner and its subsidiaries and affiliates, and their respective directors, officers, employees and agents.

Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II -- Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "F" Page 9

WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 03

2nd Reprint Effective April 1, 1984 Advisory

WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT

We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.)

This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule

Notes:

DPR Construction, A General Partnership, its joint venture and joint venture partner, where applicable, its/their officers, owners, employees, agents, parents, partners, subsidiaries and affiliates; the Owner and any person or organization that Owner requires by written contract

Owner and its subsidiaries and affiliates, and their respective directors, officers, employees and agents.

POLICY NUMBER: COMMERCIAL GENERAL LIABILITY

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "F" Page 10

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US

This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization:

DPR Construction, A General Partnership, its joint venture and joint venture partner, where applicable, its/their officers, owners, employees, agents, parents, partners, subsidiaries and affiliates; the Owner and any person or organization that Owner requires by written contract

Owner and its subsidiaries and affiliates, and their respective directors, officers, employees and agents.

(If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)

The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV - COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products-completed operations hazard". This waiver applies only to the person or organization shown in the Schedule above.

Design-Build Agreement and General Conditions Between Owner, Development Manager and Design/Builder – Exhibit "F" Page 11

BAYTOWN MUNICIPAL DEVELOPMENT 1. b. DISTRICT SPECIAL MEETING Meeting Date: 09/27/2018 Subject: Interlocal Agreement with the City for Independent Representative for the Design-Build Contract Prepared for: Ron Bottoms, City Management Prepared by: Karen Horner, Legal

Information ITEM Consider a resolution authorizing an interlocal agreement with the City of Baytown to retain the services of an independent representative for the Baytown Hotel/Conference Center Project.

PREFACE This proposed resolution authorizes an interlocal agreement with the City of Baytown to retain the services of an independent representative for the Baytown Hotel/Conference Center Project (the "Project").

Broaddus & Associates, Inc., is proposed to perform these independent represenative services for the Project on behalf of the City and the Baytown Municipal Development District. Specifically, the services and the cost, which will be shared with the City of Baytown for the conference center portion of the project, of the same are as follows: Cost Not To Task Description Exceed Design Phase Review/comment on conceptual elevations, site plans and floor plans Review/comment on proposed standards for 1 maintenance $ 16,860.00 Review/comment on SD submittal and budget Review/Comment on DD submittal and budget Review/Comment on Final Design & Budget Bid Phase Review/comment on detailed GMP’s 2 provided by D/B Contractor $ 11,660.00 Assist in value engineering to obtain project within Budget Construction Phase Review/comment on all inspection reports Construction Administrator site observation visits Attend progress meetings Review monthly developer reports Review/approve change order or other budget 3 reallocations $217,330.00 Assist in development of Punch-list and back check Review/approve date for certificate of substantial completion Revie/approve date for certificate of final completion Project Close Out 4 Review close-out documents for completeness $16,720.00 Assist with warranty issues Total $262,570.00 This agreement apportions the cost of these services.

RECOMMENDATION Staff recommends approval.

Attachments Resolution - Interlocal Agreement A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT AUTHORIZING THE PRESIDENT TO EXECUTE THE INTERLOCAL AGREEMENT WITH THE CITY OF BAYTOWN FOR INDEPENDENT REPRESENTATIVE SERVICES FOR THE BAYTOWN HOTEL/CONVENTION CENTER DESIGN-BUILD AGREEMENTS; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.

******************************************************************************

BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT:

Section 1: That the Board of Directors of the Baytown Municipal Development District hereby authorizes the President to execute the interlocal agreement with the City of Baytown for independent representative services for the Baytown Hotel/Convention Center Design Build Agreements. A copy of said agreement is attached hereto as Exhibit “A,” and incorporated herein for all intents and purposes.

Section 2: This resolution shall take effect immediately from and after its passage by the Board of Directors of the Baytown Municipal Development District.

INTRODUCED, READ and PASSED by the affirmative vote of the Board of Directors of the Baytown Municipal Development District, this the 27th day of September, 2018.

______STEPHEN H. DONCARLOS, President ATTEST:

______LETICIA BRYSCH, Assistant Secretary

APPROVED AS TO FORM:

______IGNACIO RAMIREZ, SR., General Counsel

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