AMENDMENT NUMBER 33 FINAL SETTLEMENT AGREEMENT
Exhibit 10.2
AMENDMENT NUMBER 33
This Amendment Number 33 (“Final Settlement Agreement”) is effective as of November 26, 2008,
between Xxxxxxx National, LLC (“Xxxxxxx”), Perini/Xxxxxxxx, Joint Venture, a joint venture of
Perini Building Company, Inc. and Xxxxxx Construction Company, t/a Xxxxxxxx Builders, Inc. (“Joint
Venture”), Perini Building Company, Inc. (“Perini”) and Xxxxxx Construction Company, t/a Xxxxxxxx
Builders, Inc. (“Xxxxxxxx”) (the Joint Venture, Perini, and Xxxxxxxx are hereinafter referred to as
“PTJV”).
RECITALS
X. Xxxxxxx is the owner of the Xxxxxxx National Harbor Resort and Convention Center
(“Project”) located in Prince George’s County, Maryland.
X. Xxxxxxx entered into an Agreement dated May 9, 2005 with PTJV (“Agreement”), under which
PTJV agreed to serve as construction manager for the Project.
C. The architect for the Project is Xxxxxxx Architecture, Design & Planning, P.C. (“Gensler”).
D. PTJV hired various subcontractors, suppliers, and other individuals or entities
(“Subcontractors”) to assist with completion of the Project by providing labor, services, material,
equipment, electrical power, and other things of value necessary for its construction.
E. Disputes have arisen between Xxxxxxx and PTJV concerning, inter alia, completion of the
Project, payment for work performed, correction of allegedly defective work, resolution of
Subcontractor liens and claims, and responsibility for the costs of delays, acceleration, extra
work, and other matters at the Project.
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F. PTJV filed suit against Xxxxxxx in the Circuit Court of Maryland for Prince George’s County
at Case No. CAE08-24316 (“PTJV Action”) alleging claims to, inter alia, establish a mechanic’s lien
and recover additional payments under the Agreement or in quantum meruit.
X. Xxxxxxx filed suit against PTJV in the Circuit Court of Maryland for Prince George’s County
at Case No. CAL08-27201 (“Xxxxxxx Action”) alleging claims to, inter alia, recover a refund of
alleged overpayments and obtain indemnification of all costs associated with subcontractor
nonpayment and any resulting mechanic’s liens.
H. The term “Subcontractor” as used in this Final Settlement Agreement includes
“Subcontractor,” “Sub-Subcontractor,” and “Supplier,” as those terms are defined in the General
Conditions for the Xxxxxxx National Resort Project (“General Conditions”).
X. Xxxxxxx has received notices to owner (“Notices to Owner”) from Subcontractors, pursuant to
Maryland Lien Law.
J. Subcontractors have brought actions against Xxxxxxx to establish and enforce mechanic’s
liens, thereto, or arising out or related thereto and more Subcontractors may bring such actions
(all present and future actions are referred to herein as “Subcontractor Actions”).
K. Subcontractors currently have interlocutory liens on the Project in the Subcontractor
Actions.
X. Xxxxxxx has filed cross-claims or third-party claims against PTJV in several Subcontractor
Actions and has filed a counterclaim against PTJV in the PTJV Action.
M. The parties have executed amendments to the Agreement through GMP Amendment 18, except for
GMP Amendment 9 which Xxxxxxx rejected.
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N. PTJV has submitted applications for payment through Application for Payment No. 39 Revised
dated September 11, 2008.
O. The parties each deny responsibility for the claims of the other but agree to settle and
resolve finally and for all time such claims, in accordance with the compromise terms set forth in
this Final Settlement Agreement, to avoid the time, cost, and risk of litigation.
NOW, THEREFORE, in consideration of the foregoing premises and in further consideration of the
mutual covenants, undertakings and promises contained herein, and with the intent to be legally
bound hereby, the parties hereto agree as follows:
A G R E E M E N T
ARTICLE 1
ARTICLE 1
FINAL CONTRACT AMOUNT
1.1 The Final Contract Amount is $845,000,000. This is a lump sum and a fixed amount. The
Agreement no longer has any cost reimbursable components. All allowances and credits are resolved.
This lump sum amount alters the previous payment process under which PTJV was to receive payment
for the cost of the work, plus fixed general conditions, and fee, subject to a Guaranteed Maximum
Price. This Final Contract Amount is full compensation for all cost of the work, all general
conditions (fixed, extended, and otherwise), and all fee and has been adjusted for all claims,
backcharges, offsets and credits of Xxxxxxx through November 26, 2008. By way of illustration, and
not in limitation, the on-going work to flush the risers and fan coil units, by Xxxxxxxxxx
Mechanical Services, Inc., and to replace the actuators, by dpM, is included in the Final Contract
Amount if performed before November 26, 2008. If performed afterward, it is the responsibility of
PTJV to pay or perform. The Final Contract Amount has
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been adjusted downward to $845,000,000 because of the claims of Xxxxxxx that relate to, inter alia,
the work or failure to perform work of Subcontractors.
1.2 The Final Contract Amount is not auditable.
1.3 All Owner Controlled Insurance Program (“OCIP”) credits are resolved by the Final Contract
Amount. PTJV owes no further credits or payments associated with the OCIP program.
1.4 The amount paid to the date of this Final Settlement Agreement is $802,698,125.
1.5 PTJV will submit Application for Payment No. 40 in the credit amount of $26,157,912,
reflecting a Final Contract Amount of $845,000,000, and a paid to date of $802,698,125. PTJV will
submit the normal and appropriate lien waivers and releases in connection with this application for
payment. Xxxxxxx will pay PTJV by wire transfer the sum of $39,301,875, within 3 business days of
execution of this Final Settlement Agreement and no later than December 29, 2008. This sum
represents the balance due for all prior requisitions of $42,301,875 less a $3.0 million holdback
for the Completion of Work pursuant to Article 3 of this Final Settlement Agreement.
1.6 No retainage will be withheld. The only withholding will be the sum of $3.0 million in
connection with the Completion of the Work, which will be paid as provided in Article 3 of this
Final Settlement Agreement.
ARTICLE 2
FINAL CONTRACT DOCUMENTS
2.1 The Work, as defined in Article 2 of the Agreement, as amended, is inclusive of addenda
issued by Gensler through Hotel Phase I Addendum No. 388 dated May 21, 2008, Hotel Phase II
Addendum No. 108 dated March 25, 2008, Site Xxxxxxxx Xx. 00 dated May 21, 2008,
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Convention Center Addendum C-Add No. 255 dated May 6, 2008, and Parking Garage Addendum G-Add No.
56 dated March 25, 2008, except as specifically revised by this Final Settlement Agreement.
ARTICLE 3
COMPLETION OF THE WORK
3.1 PTJV will complete the Work and correct deficiencies in the work and will achieve Final
Completion in accordance with the Agreement. Except as provided in this Final Settlement
Agreement, the scope of the Completion of the Work is identified in the punch lists and deficiency
lists as follows:
Hotel
| Issue No. | Description | Date Published | ||
Initial Guestroom Review |
||||
(Segment C — Floors 2-6 & 8) |
||||
| 1 | Punch List 1
|
8/16/2007 | ||
Initial Guestroom Review |
||||
(Segment C — Floors 6-10) |
||||
| 2 | Punch List 2
|
8/23/2007 | ||
Initial Guestroom Review |
||||
(Segment C — Floors 3 & 5-12) |
||||
| 3 | Punch List 3
|
8/31/2007 | ||
Initial Guestroom Review |
||||
(Segment C — Floor 1) |
||||
| 4 | Punch List 4
|
9/07/2007 | ||
Initial Guestroom Review |
||||
(Segment C — Floors 8, 9 & 12) |
||||
Completion Review No. 1 |
||||
(Segment C — Floors 2-5) |
||||
| 5 | Punch List 5
|
9/14/2007 | ||
Initial Guestroom Review |
||||
(Segment D — Floors 2 & 3) |
||||
Completion Review No. 1 |
||||
(Segment C — Floors 6-10) |
||||
Completion Review No. 2 |
||||
(Segment C — Floor 2) |
||||
| 6 | Punch List 6
|
9/21/2007 |
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| Issue No. | Description | Date Published | ||
Initial BOH Review |
||||
(Segments A/B — Floor 1) |
||||
Initial Guestroom Review |
||||
(Segment C — Floors 11 & 12) |
||||
(Segment D — Floor 3) |
||||
Completion Review No. 1 |
||||
(Segment C — Floors 7-10) |
||||
Floors 1 & 7-12 include MEP comments |
||||
| 7 | Punch List 7
|
9/28/2007 | ||
Initial Guestroom Review |
||||
(Segment D — Floor 4) |
||||
| 8 | Punch List 8
|
10/5/2007 | ||
Initial BOH Review |
||||
(Segments A/B — Floor 1) |
||||
Initial Guestroom Review |
||||
(Segment D — Floors 5-7) |
||||
| 9 | Punch List 9
|
10/12/2007 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 3 & 4) |
||||
Initial BOH Review |
||||
(Segment A/B — Floor 1) |
||||
Floor 1 includes MEP comments |
||||
| 10 | Punch List 10
|
10/19/2007 | ||
Initial BOH Review |
||||
(Segments A / B — Floor 1) |
||||
Initial Guestroom Review |
||||
(Segment B — Floor 3) |
||||
(Segments A/B — Floors 4 & 5) |
||||
(Segment A — Floor 6) |
||||
Floor 1 includes MEP comments |
||||
| 11 | Punch List 11
|
10/26/2007 | ||
Initial BOH Review |
||||
(Segment B — Floor 1) |
||||
Initial Guestroom Review |
||||
(Segments A / B — Floors 5-7) |
||||
| 12 | Punch List 12
|
11/2/2007 | ||
Initial BOH Review |
||||
(Segment B — Floor 1) |
||||
Initial Guestroom Review |
||||
(Segments A / B — Floors 7 & 8) |
||||
| 13 | Punch List 13
|
11/9/2007 | ||
Initial Guestroom Review |
||||
(Segments A / B — Floors 8 & 9) |
||||
| 14 | Punch List 14
|
11/16/2007 |
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| Issue No. | Description | Date Published | ||
Initial Guestroom Review |
||||
(Segment B — Floors 4, 6 & 7) |
||||
(Segments A / B — Xxxxxx 0, 00 & 00) |
||||
| 00 | Xxxxx List 15
|
11/21/2007 | ||
Initial Guestroom Review |
||||
(Segment E — Floor 3) |
||||
(Segments B & E — Floor 4) |
||||
(Segment A/B — Floor 11) |
||||
| 16 | Punch List 16
|
12/7/2007 | ||
Initial Guestroom Review |
||||
(Segment E — Floors 4 & 5) |
||||
(Segment B — Floor 7) |
||||
| 17 | Punch List 17
|
12/14/2007 | ||
Initial Guestroom Review |
||||
(Segment E — Floor 4) |
||||
(Segments A, A/B & E — Floor 5) |
||||
(Segment E — Floor 6) |
||||
| 18 | Punch List 18
|
12/21/2007 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 4 & 12) |
||||
(Segment B — Floors 4, 8) |
||||
(Segment C — Xxxxxx 0, 0, 00 & 00) |
||||
(Xxxxxxx X — Floors 4, 5 & 7) |
||||
(Segment E — Floors 3-6) |
||||
Floors 2 & 3 include MEP comments |
||||
| 19 | Punch List 19
|
1/4/2008 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 9 & 12) |
||||
(Segment A/B — Floors 9 & 12) |
||||
(Segment B — Floors 9 & 10) |
||||
(Segment C — Floors 2, 3, 4, 5) |
||||
| 20 | Punch List 20
|
1/11/2008 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 5, 6 & 11) |
||||
(Segment A/B — Floors 5, 6, 11 & 12) |
||||
(Segment B — Floors 5, 6, 7, 9 & 12) |
||||
(Segment C — Floor 6) |
||||
(Segment D — Floors 3, 4, 5 & 6) |
||||
(Segment E — Floors 3, 5, & 6) |
||||
| 21 | Punch List 21
|
1/18/2008 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 7 & 14) |
||||
(Segment A/B — Floor 7) |
||||
(Segment B — Floors 6, 7, 11 & 12) |
||||
(Segment C — Floor 7) |
||||
| 22 | Punch List 22
|
1/25/2008 |
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| Issue No. | Description | Date Published | ||
Initial Guestroom Review |
||||
(Segment A — Floors 3-10, 14 & 15) |
||||
(Segment A/B — Floors 6-10, 14 & 15) |
||||
(Segment B — Floors 4, 5, 8, 9, 14 & 15) |
||||
(Segment C — Floors 3, 5, 6, 9 & 10) |
||||
(Segment E — Floor 5 & 6) |
||||
Floors 3, 4, 5, 6, 7 & 8 include MEP comments
|
||||
| 23 | Punch List 23
|
2/1/2008 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 2, 6, 7, 8, 11, 12 & 16)
|
||||
(Segment A/B — Floors 7, 8, 9, 11, 12, 15 & 16)
|
||||
(Segment B — Floors 3, 7, 10, 11, 12, 15 & 16)
|
||||
(Segment C — Xxxxxx 0, 0, 0 & 00) |
||||
(Xxxxxxx X — Floors 3, 4, 5, 6 & 7) |
||||
(Segment E — Floor 5) |
||||
Floors 3, 4, 5, 6, 7 & 9 include MEP comments
|
||||
| 24 | Punch List 24
|
2/11/2008 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 7, 8, 9, 14, 15 & 17) |
||||
(Segment A/B — Floors 14, 15, 17 & 18) |
||||
(Segment B — Floors 5-11 & 14-18) |
||||
(Segment C — Xxxxxx 0, 0, 0, 00 & 00) |
||||
(Xxxxxxx X — Floors 3 & 5) |
||||
(Segment E — Floors 4 & 5) |
||||
Floor 17 includes MEP comments |
||||
| 25 | Punch List 25
|
2/19/2008 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 10, 11, 12, 15, 16 & 17)
|
||||
(Segment A/B — Floors 5-18) |
||||
(Segment B — Floors 4, 9, 10, 12, 14, 16, 17 & 18)
|
||||
(Segment C — Xxxxxx 0, 0, 0, 0, 0 & 00) |
||||
(Xxxxxxx X — Floor 5) |
||||
Floors 5-17 include MEP comments |
||||
| 26 | Punch List 26
|
2/26/2008 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 3-19) |
||||
(Segment A/B — Floors 4-12, 17 & 19) |
||||
(Segment B — Floors 3, 4, 10, 12 & 19) |
||||
(Segment C — Floors 1-12) |
||||
(Segment D — Floors 2, 3, 4 & 7) |
||||
(Segment E — Floors 3, 4 & 7) |
||||
Floors 4, 5, 6, 7, 8 & 9 include MEP comments
|
||||
| 27 | Punch List 27
|
3/5/2008 |
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| Issue No. | Description | Date Published | ||
Initial Guestroom Review |
||||
(Segment A — Floors 3, 5, 14 & 17) |
||||
(Segment A/B — Floors 10, 11, 12 & 14) |
||||
(Segment B — Floors 3, 5, 6, 8, 10, 11, 12 & 17)
|
||||
(Segment D — Floors 2, 4, 5, 6 & 7) |
||||
(Segment E — Floors 3, 6 & 7) |
||||
| 28 | Punch List 28
|
3/13/2008 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 6 & 15-17) |
||||
(Segment A/B — Floors 14-19) |
||||
(Segment B — Floors 14-19) |
||||
(Segment D — Floor 6) |
||||
(Segment E — Floor 6) |
||||
Initial Public Spaces Review |
||||
(Segment B — Floor 1) |
||||
(Segment D — Floors 0 & 1) |
||||
(Segment E — Floors 0 & 1) |
||||
| 29 | Punch List 29
|
3/19/2008 | ||
Initial Guestroom Review |
||||
(Segment A — Floors 7, 8 & 10) |
||||
(Segment B — Floors 4, 9 & 19) |
||||
(Segment E — Floor 7) |
||||
Initial Public Spaces Review |
||||
(Segment A — Floors 0, 1 & 2) |
||||
(Segment A/B — Floor 2) |
||||
(Segment C — Floor 1) |
||||
(Segment D — Floor 1) |
||||
(Segment E — Floor 1) |
||||
Initial Pool / Fitness Review |
||||
(Floor B1) |
||||
Floor B1 includes MEP comments |
||||
| 30 & 31 | Punch Lists 30 & 31
|
3/21/2008 | ||
Initial Public Spaces Review |
||||
(Segment A — Floors 0 & 2) |
||||
(Segment A/B — Floors 0 & 2) |
||||
(Segment B — Floor 1) |
||||
(Segment D — Floors 0 & 1) |
||||
(Segment E — Floors 1 & 2) |
||||
| 32 | Punch List 32
|
3/24/2008 |
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| Issue No. | Description | Date Published | ||
Initial Public Spaces Review |
||||
(Segment A — Floor 2) |
||||
(Segment A/B — Floors 0 & 2) |
||||
(Segment B — Floors 0 & 1) |
||||
(Segment D — Floor 0) |
||||
Initial Guestroom Review |
||||
(Segment A — Floors 3-19) |
||||
(Segment A/B — Floors 12-19) |
||||
(Segment B — Floors 3-19) |
||||
Initial Pool / Fitness Review |
||||
(Floor B1) |
||||
| 33 | Punch List 33
|
3/28/2008 | ||
Initial Public Spaces Review |
||||
(Segment A — Floor 0) |
||||
(Segment A/B — Floors 0 & 2) |
||||
(Segment B — Floors 0 & 2) |
||||
(Segment D — Floor 0) |
||||
(Segment E — Floor 1) |
||||
Initial Guestroom Review |
||||
(Segment A — Floors 14 & 16-19) |
||||
(Segment A/B — Floors 5-11, 14, 15, 17 & 19)
|
||||
(Segment B — Xxxxxx 0, 0, 0, 00 & 00) |
||||
(Xxxxxxx X — Floor 7) |
||||
Initial Pool / Fitness Review |
||||
(Floor B1) |
||||
Floors 0 & B1 include MEP comments |
||||
| 34 | Punch List 34
|
4/8/2008 | ||
Initial Public Spaces Review |
||||
(Segment A — Floors 0-2) |
||||
(Segment A/B — Floors 0 & 2) |
||||
(Segment B — Floors 0-2) |
||||
(Segment D — Floors 0 & 1) |
||||
(Segment E — Floors 0-2) |
||||
Initial Guestroom Review |
||||
(Segment A — Floors 7 & 17) |
||||
(Segment A/B — Floors 5, 18 & 19) |
||||
(Segment B — Floors 3-7 & 10-19) |
||||
(Segment D — Floors 4, 6 & 7) |
||||
(Segment E — Floors 3-7) |
||||
Initial Pool / Fitness Review |
||||
(Floor B1) |
||||
Initial Penthouse Review |
||||
(Segments A, A/B, C & D) |
||||
Floors 1-3, 5-7, 18-19 & Penthouse include
MEP comments
|
||||
| 35 | Punch List 35
|
4/16/2008 |
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Phase II
| Issue No. | Description | Date Published | ||
Initial Guestroom Review |
||||
(Segment H — Floors 4 & 5) |
||||
| 1 | Punch List 1
|
2/8/2008 | ||
Initial Guestroom Review |
||||
(Segment H — Floors 5, 6 & 7) |
||||
| 2 | Punch List 2
|
2/15/2008 | ||
Initial Guestroom Review |
||||
(Segment H — Floors 6 & 7) |
||||
| 3 | Punch List 3
|
2/22/2008 | ||
Initial Guestroom Review |
||||
(Segment H — Floors 4, 5, 6, 7 & 8) |
||||
| 4 | Punch List 4
|
2/29/2008 | ||
Initial Guestroom Review |
||||
(Segment H — Xxxxxx 0, 0, 0, 0 & 00) |
||||
| 0 | Xxxxx List 5
|
3/7/2008 | ||
Initial Meeting Rooms Review |
||||
(Segment H — Floor 2) |
||||
Initial Guestroom Review |
||||
(Segment H — Floors 6-11) |
||||
| 6 | Punch List 6
|
3/20/2008 | ||
Initial Public Spaces Review |
||||
(Segment H — Floor 2) |
||||
Initial Guestroom Review |
||||
(Segment H — Xxxxxx 0, 00, 00 & 00) |
||||
| 0 | Xxxxx List 7
|
3/25/2008 | ||
Initial Guestroom Review |
||||
(Segment H — Floors 4-12) |
||||
| 8 | Punch List 8
|
4/2/2008 | ||
Initial Public Spaces Review |
||||
(Segment H — Floors 1 & 2) |
||||
Initial Guestroom Review |
||||
(Segment H — Floors 4-12) |
||||
Initial Penthouse Review |
||||
(Segment
H) Floors 1, 2 & 4-12 include MEP comments |
||||
| 9 | Punch List 9
|
4/24/2008 |
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Convention Center
| Issue No. | Description | Date Published | ||
Initial Review with MEP comments |
||||
Xxxxx 00 — Convention Services (Floor 01) |
||||
| 1 | Punch List 1
|
10/2/2007 | ||
Initial Review |
||||
Xxxxx 00 — Xxxxxxxxxx Xxxx (Xxxxx 00) |
||||
Level 61 — Kitchen / BOH (Floor 01) |
||||
| 2 | Punch List 2
|
10/9/2007 | ||
Completion Review Xx. 0 |
||||
Xxxxx 00 — Convention Services (Floor 01) |
||||
| 3 | Punch List 3
|
10/16/2007 | ||
Initial Review |
||||
Xxxxx 00 — BOH (Floor 00) |
||||
Initial Review with MEP comments |
||||
Xxxxx 00 — XXX (Xxxxx 00) |
||||
| 0 | Xxxxx List 4
|
10/19/2007 | ||
Initial Review |
||||
Xxxxx 00 — BOH (Floor 00) |
||||
Initial Review with MEP comments |
||||
Xxxxx 00 — XXX (Xxxxx 00) |
||||
| 0 | Xxxxx List 5
|
11/09/2007 | ||
Initial Review with Cini-Little Comments |
||||
Xxxxx 00 — Room Service Kitchen & Employee Servery
Kitchen
|
||||
(Floor 01) |
||||
| 6 | Punch List 6
|
12/07/2007 | ||
Completion Review Xx. 0 |
||||
Xxxxx 00 — BOH (Floor 00) |
||||
| 7 | Punch List 7
|
12/21/2007 | ||
Initial Review |
||||
Xxxxx 00 — Xxxxx xx Xxxxx (Xxxxx 00) |
||||
Level 78 — Engineering Offices (Floor 02) |
||||
| 8 | Punch List 8
|
01/07/2008 | ||
| 9 | Initial
Review Xxxxx 00 — Xxxxxxxxxx Xxxx (Xxxxx 00) Level 78 — Ballrooms & Meeting Rooms (Floor 02) Punch List 9 |
01/28/2008 |
||
Initial Review |
||||
Xxxxx 00 — Prefunction Areas (Floor 00) |
||||
Level 78 — Kitchen Areas (Floor 02) |
||||
| 10 | Punch List 10
|
02/15/2008 |
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| Issue No. | Description | Date Published | ||
Initial Review |
||||
Xxxxx 00 — Offices (Floor 02) |
||||
Level 86 — Human Resources (Floor 03) |
||||
| 11 | Punch List 11
|
02/22/2008 | ||
Initial Review |
||||
Xxxxx 000 — Control Rooms, Meeting Rooms & Spot Pods
|
||||
(Floor 04) |
||||
| 12 | Punch List 12
|
02/29/2008 | ||
Initial Review |
||||
Xxxxx 00 — Corridors & Storage Rooms (Floor 02)
|
||||
Level 86 — Human Resources (Floor 03) |
||||
Level
100 — Corridors, Storage & Spot Pods (Floor 04) Stairs |
||||
| 13 | Punch List 13
|
3/17/2008 | ||
Initial Review |
||||
Xxxxx 00 — Back of House (Floor 00) |
||||
Level 78 — BOH / CUP (Floor 02) |
||||
Level
100 — BOH / CUP (Floor 04) Stairs |
||||
| 14 | Punch List 14
|
3/25/2008 | ||
Initial Review |
||||
Xxxxx 00 — Exhibit Hall & Public Spaces (Floor 00)
|
||||
Level 61 — Atrium (Floor 01) |
||||
Level
78 — Public Spaces (Floor 02) Stairs |
||||
| 15 | Punch List 15
|
4/3/2008 | ||
Initial Review |
||||
Xxxxx 00 — Corridors & Mech Rooms (Floor 00) |
||||
Level 61 — Kitchen Areas, Corridors & Mechanical
Rooms
|
||||
(Floor 01) |
||||
Level 86 — Mechanical Rooms (Floor 03) |
||||
Level 100 — Mechanical Rooms (Floor 04) |
||||
Stairs |
||||
Floor 01 includes MEP comments |
||||
| 16 | Punch List 16
|
4/28/2008 |
Garage
| Issue No. | Description | Date Published | ||
Initial Parking Garage Review |
||||
(Levels 1-6) |
||||
Levels 1-5 include MEP comments |
||||
| 1 | Punch List 1
|
5/5/2008 |
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Site
| Issue No. | Description | Date Published | ||
Initial Site Review |
||||
(Site — Convention Center) |
||||
(Site — Hotel) |
||||
(Site — Site) |
||||
| 1 | Punch List 1
|
5/22/2008 |
Signage
| Issue No. | Description [TO BE FURNISHED] | Date Published | ||
Initial Signage and Graphics Review |
||||
(Site — Convention Center) |
||||
(Site — Hotel) |
||||
(Site — Site) |
||||
| 1 | Punch List 1
|
7/18/08 |
AV
| Issue No. | Description [TO BE FURNISHED] | Date Published | ||
| 4/15 &16/08, | ||||
| Lighting & 6/2/08 | ||||
Initial AV and Technical Lighting Review
|
E-mail update; | |||
(Site — Convention Center)
|
2/18/08 Audio-Video | |||
(Site — Hotel)
|
Systems; and | |||
(Site — Site)
|
2/12/08 Stage | |||
| 1 | Punch List 1
|
Rigging |
Kitchen
| Issue No. | Description | Date Published | ||
Initial Kitchen Review |
||||
(Site — Convention Center) |
||||
(Site — Hotel) |
||||
(Site — Site) |
||||
| 1 | Punch List 1
|
11/20/07 |
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Water Features
| Issue No. | Description | Date Published | ||
Initial Water Features Review
|
09/22/08 Site Visit | |||
(Site — Convention Center)
|
Reference E-mail | |||
(Site — Hotel)
|
dated 9/26/08 with | |||
(Site — Site)
|
Pictures from | |||
| 1 | Punch List 1
|
09/22/08 Site Visit |
Architects
| Issue No. | Description | Date Published | ||
Initial Architect’s Deficiency Review
|
Log # 4, dated | |||
(Site — Convention Center)
|
9/22/08 with a | |||
(Site — Hotel)
|
supplement that is | |||
(Site — Site)
|
dated 12/08/08 [to | |||
| 1 | Punch List 1
|
be furnished] |
Exterior
| Issue No. | Description | Date Published | ||
Initial Hotel — Phase I Review |
||||
(Site — Hotel) |
||||
(Site — Site) |
||||
| 1 | Punch List 1
|
9/26/08, Update | ||
Initial Hotel — Phase II Review |
||||
(Site — Hotel) |
||||
(Site — Site) |
||||
| 2 | Punch List 1
|
9/26/08, Update | ||
Initial Convention Center Review |
||||
(Site — CC) |
||||
(Site — Site) |
||||
| 3 | Punch List 1
|
9/26/08, Update |
Expansion Joint
| Issue No. | Description | Date Published | ||
Initial Expansion Joint Deficiency Review |
||||
(Site — Exterior) |
||||
(Site — Interior) |
||||
| 1 | Punch List 1
|
May 28, 2008 |
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Water Intrusion
| Issue No. | Description | Date Published | ||
Initial Water Intrusion Review
|
Issued by PTJV | |||
(Site — Hotel)
|
9/15/08 is the last | |||
(Site — Site)
|
version we have by | |||
| 1 | Punch List 1
|
3.2 PTJV has taken certain exceptions to the identification of (1) certain addenda included
within the Final Contract Documents in Article 2, and (2) items identified in the punch lists and
deficiency lists in section 3.1 that may be included within those addenda. Attachment A is the
PTJV List of Excluded Addenda with Xxxxxxx comments. Where disagreements are noted in the list,
such disagreements will be resolved as provided in this article.
3.3 With regard to the guest room and related corridor work, the punch lists and deficiency
lists in section 3.1 have not been statused to identify work that has been corrected and completed.
Xxxxxxx and PTJV recognize that work will be performed during the “mini-renovation” of guest rooms
that includes some damage due to guests, FF&E installation, and operations. PTJV and Xxxxxxx have
agreed on the lump sum of $190,000 to repair any damages due to guests, FF&E installation, and
operations as part of completion and correction of the punch lists and deficiency lists in section
3.1 associated with the guest rooms. This lump sum includes repair to the drywall access panels in
approximately 160 guest rooms, but does not include the guest room corridors nor the super suites
(presidential and TVS). PTJV and Xxxxxxx will agree in the near future on the amount and scope of
this work in the corridors and the super suites. This lump sum of $190,000 is in addition to the
Final Contract Amount.
3.4 With regard to the remainder of the Project (excluding the guest rooms and related
corridors), the punch lists and deficiency lists in section 3.1 have been partially statused.
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PTJV has identified the major items on the lists which it has not done and does not intend to
do. Attachment B to this Final Settlement Agreement is the PTJV list of excluded punch list items
(“PTJV Excluded Punch List”). The PTJV Excluded Punch List contains Xxxxxxx comments. Where the
parties disagree as to an item contained in the list, or the exception taken by PTJV, the
disagreements will be resolved as provided in this article.
3.5 With regard to the TVS suites, PTJV will correct and complete the work as required by the
punch lists and deficiency lists in section 3.1.
3.6 PTJV has prepared certain schedules for Completion of the Work: (1) a schedule to perform
the “hot items” and public areas; and, (2) a preliminary room (guest rooms, corridors, and suites)
punch schedule . The schedules are Attachment C to this Final Settlement Agreement. PTJV will
perform the Completion of the Work in accordance with the attached schedules, and will complete the
room (guest rooms, corridors, and suites) punch by September 1, 2009, and all remaining work by May
1, 2009, subject to adjustments as allowed by the Agreement and subject to the reasonable
operational requirements of Xxxxxxx. PTJV will update the schedules on a weekly basis. The work
will be done expeditiously with recognition for its critical nature; failure to progress the work
expeditiously will subject PTJV to the remedies in section 3.9 and in the Agreement (i.e.
supplement forces, termination of the right to proceed, and termination of the Agreement). Xxxxxxx
will cooperate with PTJV to meet the schedule, including but not limited to, providing access to
areas and rooms and inspection and sign off services. PTJV will cooperate with Xxxxxxx and its
operations, realizing that the Project is an operating facility with employees and guests, which
will require close coordination of the schedule with the demands of the operating facility.
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3.7 PTJV shall submit for Gaylord’s approval a schedule of values for the uncompleted work.
The amount of $3.0 million will be withheld from the Final Contract Amount until the value of the
uncompleted work is $2.0 million or less (150 percent) as determined by the schedule of values. At
that time, the $3.0 million will be released based upon monthly applications provided the remaining
withheld amount equals 150% of the scheduled value for completion of the remaining items. Payments
by wire transfer or by check, at Gaylord’s discretion, will be made within 10 days of receipt of a
monthly pay application in a form reasonably acceptable to Xxxxxxx.
3.8 The parties will meet weekly to coordinate the completion and correction of work. Xxx
Xxxxx will directly lead the PTJV site team and, for the first 60 days, will be on site at least
three days per week thereafter as needed until completion and correction of the work. The work
will be inspected and accepted by Xxxxxxx by applying commercial standards in a reasonable and
industry manner. If the representatives of the parties reach an impasse as to items on the punch
lists and deficiency lists, senior executives of the parties will attempt to reach a resolution
applying the contract documents using commercial standards in a reasonable and industry manner.
3.9 In the event the parties are unable to resolve disputes concerning the punch lists and
deficiency lists by the foregoing procedure or if PTJV does not perform the remaining work in a
timely fashion in accordance with the applicable contract documents, Xxxxxxx reserves its
contractual rights to the extent permitted by the Agreement to supplement forces, deduct any
related cost from the withheld $3.0 million, and, if necessary, to terminate the right of PTJV to
proceed pursuant to the Agreement, to complete and correct the work with other forces, and to
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charge all related costs to PTJV. In such circumstances, Xxxxxxx will follow the procedures of the
Agreement.
3.10 The parties recognize that work outside the scope of the agreed punch lists and
deficiency lists in section 3.1 may be requested (in addition to repairs due to damage caused by
guests, FF&E installation, and operations). It is the desire of the parties to keep this
additional work to a minimum. Unless otherwise mutually agreed by the parties, any additional work
will not be performed unless and until both parties execute a written change order identifying a
fixed price for a specific scope of additional work. Payment will be made as part of the monthly
application for payment within 10 days of submission. Upon completion, PTJV will submit an
application for Final Payment in accordance with Section 13.1 of the Agreement.
ARTICLE 4
SUBCONTRACTOR LIENS/CLAIMS
4.1 The parties recognize that claims by Minority and Local Business Enterprises (“MBE/LBEs”)
are to be given priority consideration. PTJV shall endeavor to reach resolution with MBE/LBEs as
early as possible. PTJV will reach settlements with MBE/LBE entities based upon the value of their
work and with due consideration of the special status of these entities. PTJV will certify
compliance with MBE/LBE requirements of the Agreement, and provide information as needed by
Xxxxxxx, to the extent required by the Agreement, and for Gaylord’s use in supplying MBE/LBE
information to Prince George’s County. PTJV must also certify compliance with the prevailing wage
rate schedules published by the Prince George’s County Determination Board.
4.2 PTJV agrees to assume the defense of Xxxxxxx in all present and future Subcontractor
Actions, and to bear all costs of such defense. This duty to defend, and pay all
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costs of such defense, includes attorney’s fees, court costs, expert fees, and expenses. This duty
to defend and pay does not include any discovery sanctions that may be awarded for any action or
failure to act by Gaylord prior to December 31, 2008. Attachment D to this Final Settlement
Agreement is the Lien/Litigation Matrix which identifies current Subcontractor Actions and
Subcontractor claims. By December 31, 2008, PTJV’s attorneys from the firm of Ober, Kaler, Xxxxxx
& Xxxxxxx, P.C. will enter their appearances as counsel for Xxxxxxx in all present Subcontractor
Actions in substitution for Gaylord’s current attorneys from the firms of Huddles, Jones, Xxxxxxxxx
& Xxxxxxxx, P.C. and Xxxxx Xxxxxx & Xxxxxxx LLP. If and when any Subcontractor brings a future
Subcontractor Action, or in the event a present Subcontractor lien or Subcontractor Action is not
included in the Lien/Litigation Matrix, Xxxxxxx will promptly notify PTJV, and PTJV’s attorneys
will also defend Xxxxxxx in such actions and bear all the costs of such defense.
4.3 By January 31, 2009, PTJV agrees to remove all interlocutory or final Subcontractor liens
from the Project by satisfying or bonding off such liens and, if the latter, to pay all costs
associated with any xxxx xxxx. PTJV further agrees to remove any future interlocutory or final
liens on the Project within 30 days of the entry of any order establishing such interlocutory or
final lien.
4.4 As part of any settlement with Subcontractors, PTJV will supply its standard General
Release and Final Waiver form executed by each Subcontractor. Attachment E is a copy of the PTJV
General Release and Final Waiver form. PTJV must also obtain a consent of surety for any bond
issued for a Subcontractor.
4.5 PTJV agrees to fully indemnify, save and hold harmless Xxxxxxx, at PTJV’s sole expense
(including, without limitation, attorneys fees, expert fees, and litigation expenses) from
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all Subcontractor Actions. However, PTJV has no duty to indemnify and hold Xxxxxxx harmless
(except for the duty to defend in section 4.2), for any special, exemplary or punitive damages due
to any claim alleging Gaylord’s independent tortious conduct.
4.6 Upon receipt of payment in accordance with Application for Payment No. 40, PTJV will
release its mechanic’s lien and will file a notice of dismissal with prejudice of its claims
against Xxxxxxx in the PTJV Action, and Xxxxxxx will file a notice of dismissal with prejudice of
its claims against PTJV in the Xxxxxxx Action, its counterclaim in the PTJV Action, and its
cross-claims and third-party claims in the Subcontractor Actions. Both the dismissal with
prejudice by PTJV and by Xxxxxxx will exclude from the dismissals causes of action related to (1)
the enforcement of this Final Settlement Agreement, and (2) the Completion of the Work, as
identified above. Each party will bear its own attorneys fees, costs and expenses.
4.7 Xxxxxxx will cooperate with PTJV in the defense of any Subcontractor Actions. Beginning
January 1, 2009, PTJV will pay any expenses incurred by Xxxxxxx (travel and other reimbursable
expenses), and will pay a reasonable per diem or pre-approved hourly rate (based on actual labor
cost) for Gaylord personnel who assist at the direct request of PTJV in excess of 50 total hours
for all Gaylord personnel. Any such labor and expenses will be invoiced monthly by Xxxxxxx and
paid by PTJV within ten days.
4.8 At its expense, Xxxxxxx will provide access to its paper copies of Project documents as
needed by PTJV. At its expense, Xxxxxxx will provide an electronic copy of its electronic Project
documents, including email, by December 31, 2008. Xxxxxxx will perform a privilege review of the
Xxxxxxx documents before December 31, 2008.
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ARTICLE 5
BANKER STEEL
BANKER STEEL
5.1 This Final Settlement Agreement does not affect the pending claim asserted by Banker
Steel, LLC (the “atrium truss claim”) in connection with the builder’s risk policy maintained for
the Project.
5.2 PTJV has also notified Xxxxxxx of a potential claim it may assert in connection with the
OCIP/builder’s risk policies arising from the atrium truss claim. Whatever claim submitted by PTJV
is limited by the policy limits, terms, and conditions of any applicable policies.
5.3 PTJV is responsible for any and all deductibles in connection with the atrium truss claim
or any other claim, regardless of the number of occurrences, under the OCIP/builder’s risk
policies. For clarification, PTJV is responsible for the actual policy deductibles or retention
for any and all insurance claims regardless of the deductible amount identified in the Agreement.
Further, PTJV agrees to make no claim against Xxxxxxx in connection with the atrium truss claim.
5.4 Claims made in connection with the OCIP/builder’s risk policies will be adjusted in due
course by the insurers. Any insurance proceeds will be distributed as provided in the Agreement.
ARTICLE 6
WARRANTIES AND GUARANTIES
6.1 The dates of early turnover of certain portions of the Project are as follows: (a) the
Data Center — 7/1/07; (b) Executive Office — 9/1/07; (c) the Convention Center — 1/22/08; (d)
all other areas — March 29, 2008. Per Paragraph 30 of the General Conditions, PTJV represents
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and warrants that all Work will be free from failure under ordinary usage for a period of one (1)
year from the date of substantial completion of the entire Project on March 29, 2008 (including any
mechanical, equipment or other specific extended warranties in the Final Contract Documents). This
warranty applies even if Xxxxxxx accepted portions of the Project prior to the date of substantial
completion of the entire Project.
6.2 All requirements for warranties and guaranties as stated in Paragraph 30 of the General
Conditions are applicable. In addition, the one (1) year period from the date of substantial
completion does not prevent or prohibit any claims if Xxxxxxx later learns the Work was not
installed in compliance with the contract documents or if latent defects are discovered. Xxxxxxx
represents it has no actual knowledge of any unasserted or latent defects (other than may be
included within the scope of Article 3 Completion of the Work).
ARTICLE 7
TEST AND BALANCE
TEST AND BALANCE
7.1 PTJV will assist Xxxxxxx with Xxxxxxx’x commissioning, testing and balancing to the extent
required by the Agreement.
ARTICLE 8
RELEASE
8.1 For any event or occurrence through the effective date of this Final Settlement Agreement,
and except for the excluded matters set forth in this section, PTJV for itself, its successors,
assigns, affiliates, and partners, hereby remises, releases, quitclaims and forever discharges
Xxxxxxx, their respective parents, owners, subsidiaries, and affiliates, and their respective
shareholders, officers, directors, employees, agents, consultants, servants, partners, sureties,
attorneys, representatives, successors and assigns of and from any and all manner of
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actions, cause and causes of action and actions, suits, debts, dues, duties, sum or sums of money,
accounts, contracts, promises, variances, judgments, executions, liabilities, liens, damages,
additional general conditions, claims for fee, costs, expenses, attorneys’ fees, claims,
adjustments, requests for equitable adjustment, and demands whatsoever, known or unknown,
liquidated or not, in law or in equity arising out of or relating to (a) the Project, (b) the
Agreement or any GMP Amendments, change orders or extra work, (c) any and all claims that PTJV,
Perini, or Xxxxxxxx asserted, could have asserted or could assert in the future, and (d) any costs
incurred by PTJV, Perini, or Xxxxxxxx on the Project. Provided however, the following matters are
excluded from this release: (1) the right to receive the payments from Xxxxxxx in Articles 1 and 3;
(2) the Completion of Work in Article 3; and, (3) latent defects in the work of “unbonded
subcontractors,” as described in this section. Xxxxxxx is assuming no liability for the issue of
“unbonded subcontractors,” as identified in the Subcontractor Bond Status, Attachment F, pertaining
to the completion of the Project and the close out of Subcontractors. Xxxxxxx is only assuming,
and PTJV is excluding from the release, future, currently unknown, latent defects involving
defaulting and/or defunct “unbonded subcontractors” which latent defects are discovered following
completion of the Project and close out of Subcontractors. The foregoing release by PTJV does not
include or apply to the enforcement of this Final Settlement Agreement.
8.2 For any event or occurrence through the effective date of this Final Settlement Agreement
and except for the excluded matters set forth in this section, Xxxxxxx, for itself, its successors
and assigns, hereby remises, releases, quitclaims and forever discharges PTJV and its parents,
owners, subsidiaries, and affiliates, and its and their shareholders, officers, directors,
employees, agents, consultants, servants, partners, sureties, attorneys, representatives,
successors
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and assigns from any and all manner of actions, cause and causes of action and actions, suits,
debts, dues, duties, sum or sums of money, accounts, contracts, promises, variances, judgments,
executions, liabilities, liens, damages, costs, expenses, attorneys’ fees, claims, adjustments,
requests for equitable adjustment and demands whatsoever, in law or in equity arising out of or
relating to the Project. Provided however, the following matters are excluded from this release:
(1) defense costs and indemnification pursuant to Article 4 for claims asserted against Xxxxxxx by
any Subcontractors; (2) Completion of the Work under Article 3; (3) work that is improper,
non-conforming or defective; (4) warranty or guaranty obligations; (e) indemnity or contribution
under the Agreement; (f) latent defects; and (g) damages arising due to any failure of PTJV to bond
a Subcontractor recommended to be bonded by Xxxxxxx. The foregoing release by Xxxxxxx does not
include or apply to the enforcement of this Final Settlement Agreement.
ARTICLE 9
MISCELLANEOUS
MISCELLANEOUS
9.1 The effective date of this agreement is November 26, 2008.
9.2 The foregoing recitals A-O are hereby incorporated by reference and made a part of the
agreed terms and conditions of this Final Settlement Agreement
9.3 With regard to any PEPCO claim, PTJV will assume responsibility for the utility xxxxxxxx
for temporary power. With regard to any PEPCO invoices paid by PTJV at the request of Xxxxxxx or
paid by Xxxxxxx for power prior to Substantial Completion of the Project, the invoice will be
apportioned according to the Agreement.
9.4 The Parties hereto each represent and warrant that they have made no assignment or
transfer of any claims that they may have against each other and which are the subject of this
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Final Settlement Agreement. Further, each party expressly warrants and represents that it owns all
rights, title and interests in the claims it is releasing herein.
9.5 This Final Settlement Agreement is intended to be and is an accommodation between the
parties and shall not be construed as an admission of liability on behalf of either party. The
parties understand that they have each denied any and all liability to each other and that they
have settled disputed claims between themselves merely to avoid the risk of continuing the dispute
and the cost of litigation.
9.6 Each party to this Final Settlement Agreement shall be responsible for and pay all its own
attorneys’ fees, costs and expenses incurred, or to be incurred, for the claims released herein.
9.7 Each Party to this Final Settlement Agreement does hereby agree that this Agreement shall
be binding upon the Parties hereto, their successors, assigns and legal representatives.
9.8 This Final Settlement Agreement shall be considered as drafted jointly by the parties, and
no uncertainty or ambiguity found in the terms hereof shall be construed for or against any party
based on an attribution of drafting to any one party.
9.9 All questions concerning the construction, validity and interpretation of this Agreement
shall be governed by the laws of the State of Maryland.
9.10 If any term, covenant or condition of this Final Settlement Agreement shall be held to be
invalid, illegal or unenforceable in any respect, this Final Settlement Agreement shall be
construed without such provision.
9.11 Except as expressly modified herein, all of the parties’ contractual duties and
obligations, as identified in the Agreement and the contract documents, remain in effect,
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including but not limited to duties and obligations concerning standards of performance,
warranties, guaranties, and obligations for taxes, permits, licenses, and inspections.
9.12 Unless modified herein, this Final Settlement Agreement does not affect any insurance
coverage for the Project, nor prejudice any claims under prior or existing coverage provided by
Xxxxxxx as part of the OCIP program or provided by PTJV after closure of the OCIP program.
9.13 This Final Settlement Agreement constitutes the entire understanding and agreement
between the parties with respect to the subject matter hereof, and supersedes all other prior
discussions, agreements and understandings, both written and oral, among the parties with respect
thereto. Any amendment or modification of this Final Settlement Agreement shall be void unless set
forth in writing and signed by both parties.
9.14 This Final Settlement Agreement shall constitute the valid and binding agreement of the
Parties hereto only when executed by all of the Parties hereto. The Final Settlement Agreement may
be executed in one or more counterparts and, provided that each party signs at least one
counterpart, all such counterparts together shall constitute one agreement binding on the parties,
although not all parties are signatories to the same counterpart. Executed counterparts of the
Final Settlement Agreement may be exchanged by facsimile transmission, among other means.
9.14 Each person executing this Final Settlement Agreement on behalf of a Party to this Final
Settlement Agreement acknowledges that he (a) has read this Final Settlement Agreement; (b) has had
full opportunity to consult with Counsel concerning its meaning and effect; (c) understands and
fully agrees to each and every provision hereof on behalf of such
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Party; and (d) is fully authorized to executed the Final Settlement Agreement on behalf of such
Party.
IN WITNESS WHEREOF, the parties have executed this Final Settlement Agreement, as of the day
and year first above written.
ATTEST:
XXXXXXX NATIONAL, LLC
BY: XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
BY: XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
| By: | /s/ Xxxxx X. Xxxxxxxx |
| Title: | President |
| Date: | 12/19/08 |
ATTEST:
PERINI BUILDING COMPANY, INC.
| By: | /s/ Xxx X. Xxxxx |
| Title: | Senior Vice President |
| Date: | 12/23/08 |
ATTEST:
XXXXXX CONSTRUCTION COMPANY, T/A XXXXXXXX BUILDERS, INC.
| By: | /s/ Ed Small |
| Title: | Vice President |
| Date: | 12/20/08 |
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LIST OF ATTACHMENTS
| A | PTJV List of Excluded Addenda |
|
| B | PTJV Excluded Punch List |
|
| C | Completion Schedules |
|
| D | Lien/Litigation Matrix |
|
| E | PTJV
General Release and Final Waiver form |
|
| F | Subcontractor Bond Status |
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