EXHIBIT 10.99
DESIGN AND BUILD CONSTRUCTION AGREEMENT FOR
THE NISSAN PROPERTY
DESIGN AND BUILD CONSTRUCTION AGREEMENT
(Cost Plus Fee Guaranteed Maximum Cost)
By and Between
XXXXX OPERATING PARTNERSHIP, L.P.
and
XXXX. X. XXXXX, INC.
TABLE OF CONTENTS
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SECTION TITLE Page
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Section I. Design and Construction Obligation.................................................... 2
Section II. Pre-Construction Services............................................................. 2
Section III. Design Services....................................................................... 3
Section IV. Termination Prior to Construction..................................................... 6
Section V. Construction of the Project........................................................... 7
Section VI. Time for Performance.................................................................. 8
Section VII. Permits and Licenses.................................................................. 12
Section VIII. Changes............................................................................... 12
Section IX. Payments.............................................................................. 13
Section X. Discounts Rebates and Refunds......................................................... 23
Section XI. Compensation Retained by Owner........................................................ 23
Section XII. Subcontracts and Purchase Orders...................................................... 24
Section XIII. Insurance and Indemnification......................................................... 24
Section XIV. Liens................................................................................. 26
Section XV. Bonds................................................................................. 27
Section XVI. Independent Contractor................................................................ 27
Section XVII. Inspection and Audit.................................................................. 27
Section XVIII. Survey; Record Drawings............................................................... 28
Section IX. Termination........................................................................... 29
Section XX. Notices............................................................................... 31
Section XXI. Title of Work......................................................................... 32
Section XXII. Waiver................................................................................ 32
Section XXIII. Conflicts............................................................................. 32
Section XXIV. Work in Progress...................................................................... 32
Section XXV. Compliance with Laws.................................................................. 33
Section XXVI. Personnel............................................................................. 33
Section XXVII. Design/Builder's Warranties........................................................... 33
Section XXVIII. Defects............................................................................... 34
Section XXIX. Confidentiality and Media Communications.............................................. 34
Section XXX. Representatives....................................................................... 35
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Section XXXI. Assignment............................................................................ 36
Section XXXII. Lenders' Right to Complete............................................................ 36
Section XXXIII. Limitation of Liability............................................................... 36
Section XXXIV. Nondiscrimination..................................................................... 37
Section XXXV. Construction of Terms................................................................. 37
Section XXXVI. Captions.............................................................................. 37
Section XXXVII. Governing Law......................................................................... 38
Section XXXVIII. Entire Agreement...................................................................... 38
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EXHIBITS
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EXHIBIT A Property Description
EXHIBIT B Contract Documents
EXHIBIT C Insurance
EXHIBIT D Allowances
EXHIBIT E Outline Schedule and Milestone Completion Dates
EXHIBIT F Design Contract
EXHIBIT G Subordination Agreement
EXHIBIT H Schedule of Values & Clarifications
EXHIBIT I General Conditions of the Contract
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DESIGN AND BUILD CONSTRUCTION AGREEMENT
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THIS DESIGN AND BUILD CONSTRUCTION AGREEMENT (the "Agreement") is made
and entered into as of the 19/th/ day of September, 2001, by and between XXXXX
OPERATING PARTNERSHIP, L.P. ("Owner"), and XXXX. X. XXXXX, INC.
("Design/Builder"), upon the terms and conditions set forth herein.
RECITALS:
WHEREAS, Owner requires the design and construction of a new three (3)
story office building consisting of not less than 268,290 square feet of gross
building area, together with adjoining parking areas containing no fewer than
1,056 parking spaces, driveways, landscaping and all supporting improvements,
facilities and equipment and related site work, and including interior tenant
finish as well as building shell, in accordance with the Preliminary Building
Plans identified in Exhibit B hereto and the Drawings and Specifications
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approved by Owner, on a site located at 0000 Xxxxxxxx Xxxxxxx in the City of
Irving, 75063 Dallas County, Texas, and as more particularly described in
Exhibit A hereto (the "Project"); and
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WHEREAS, Owner desires the service of a design-build general
contractor to not only construct but to also design, organize, coordinate, and
direct the complete construction of the Project as a design-build construction
manager/general contractor, and to assume all risks and responsibilities of
producing the Project within the Contract Sum and in accordance with the
Scheduled Completion Date and Progress Schedule, as hereinafter defined; and
WHEREAS, Design/Builder represents that it has the skill, experience,
expertise and resources necessary to both design and construct the Project and
to provide the foregoing services; and
WHEREAS, Design/Builder has agreed to provide architectural,
engineering, construction management, general contracting and other services
required to design and construct the Project for Owner pursuant to the terms and
conditions set forth herein and in accordance with the plans and specifications
identified in Exhibit B attached hereto; and
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WHEREAS, Owner, without assuming, limiting or altering any of
Design/Builder's duties, obligations or responsibilities, has engaged Champion
Partners, Ltd. to act as developer ("Developer") on behalf of Owner in
connection with the Project; and
WHEREAS, Design/Builder acknowledges the role of Developer as set
forth herein and agrees that Design/Builder can and will perform in the manner
contemplated by this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein, Owner and Design/Builder agree as follows:
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Section I. Design and Construction Obligation
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A. Design/Builder hereby undertakes and assumes exclusive
responsibility for the design and construction of the Project as more
particularly described in the design development plans and specifications and
preliminary building plans identified in Exhibit B hereto (the "Preliminary
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Building Plans") in accordance with the said Preliminary Building Plans and the
Drawings and Specifications (as hereinafter defined) and to accomplish the same
on or before the Milestone Completion Dates and Scheduled Completion Date (as
hereinafter defined). All costs, expenses and expenditures in connection with
the design and construction of the Project, including without limitation amounts
owing to HKS, Inc., site architect and/or other architectural, engineering or
other design consultants or firms and to contractors, subcontractors, suppliers
or otherwise for supervision, transportation, labor, materials, permits,
insurance, bonds or other matters in connection with the design and/or
construction of the Project shall be the sole responsibility of and paid by
Design/Builder.
B. Design/Builder understands and agrees that Owner is leasing the
Project to and has certain duties and obligations to Nissan Motor Acceptance
Corporation, the intended tenant and occupant of the Project. Design/Builder
shall assist and cooperate with Owner in satisfying the requirements of the
tenant and shall make such presentations, attend such meetings and incorporate
such modifications to the design and changes in the Work as may be required to
allow Owner to meet its obligations and to satisfy the requirements of Owner's
tenant in accordance with Exhibit B hereto. Design/Builder shall not, however,
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take instruction or direction from or perform any design services, construction
activity or changes in the Work based on request from any person other than
Owner or its Developer. Nor shall Design/Builder be entitled to any additional
cost or extension of schedule in the event thereof.
Section II. Pre-Construction Services
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Design/Builder shall perform the following services, all or part of
which may continue after commencement of physical construction. The cost of
such services shall be reimbursable pursuant to Section IX(B) hereof to the
extent such costs are included within "Design/Builder's Costs" thereunder; to
the extent not within the scope of "Design/Builder's Costs," such shall be paid
from Design/Builder's Fee.
A. Consultation During Project Development: Prepare and review
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conceptual designs; advise on site use and improvements, selection of materials,
building systems and equipment; provide recommendations on relative construction
feasibility, availability of materials and labor, time requirements, and factors
related to cost including alternative designs, materials and value engineering.
Project design shall be consistent with Owner's requirements identified in
Exhibit B as well as federal, state or local regulations, including but not
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limited to the Americans with Disabilities Act, the Texas Accessibility
Standards and environmental laws including the requirements of the DFW Freeport
Business Park, its Architectural Control Committee. The Project as designed
must meet all applicable laws, ordinances and codes, the structure and
foundation must be adequate to meet the established floor loads, soil conditions
and the usual design wind loads, roof loads and other criteria utilized in the
locale of the Project, and
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the electrical, mechanical and other systems must be adequate to meet all
Preliminary Building Plans. The design, including without limitation design
aesthetics, floor plans and sizing, and placement of any applicable
manufacturing, packaging and storage equipment, facilities and assemblies, and
utilities related thereto, shall be in accordance with the Preliminary Building
Plans and submitted to Owner for its prior approval.
B. Scheduling: Provide and periodically update a Project schedule
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consistent with the requirements of and including the Milestone and Scheduled
Completion Dates set forth in Exhibit E hereto, including activity sequences and
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durations, allocation of labor and materials, processing of shop drawings and
samples, delivery of products requiring long lead time procurements and lease
and occupancy requirements showing portions of the Project having occupancy
priority.
C. Coordination of Contract Documents: Prepare alternative design and
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design documents whenever design details affect construction costs, feasibility
or schedules. Verify requirements and assignment of responsibilities for safety
precautions and programs, temporary Project facilities and equipment, materials
and services for common use of contractors in the proposed Contract Documents.
D. Labor: Provide an analysis of the labor required for the Project
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and review the availability of such labor. Determine applicable requirements
for equal employment opportunity programs for inclusion in the proposed Contract
Documents.
E. Bidding: Prepare pre-qualification criteria for bidders and
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develop subcontractor and supplier interest in the Project. Establish bidding
schedules and conduct pre-bid conferences to familiarize bidders with the
bidding documents and management techniques and with any special systems,
materials or methods.
F. Contract Awards: Conduct pre-award conferences with successful
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bidders. Advise Owner on the acceptability of proposed subcontractors and
material suppliers.
G. Hearings: Prepare for and testify at any hearings with respect to
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zoning, applications for building permits, and other Project related matters to
the extent requested by Owner.
H. Site Conditions: By executing this Agreement, Design/Builder
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represents that it has visited the Project site, thoroughly familiarized itself
with the local conditions under which Work is to be performed and correlated its
observations with the requirements of the Preliminary Building Plans and other
Contract Documents.
Section III. Design Services
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A. In addition to and not in limitation of any other description of
Design/Builder's obligations, Design/Builder shall provide architectural,
mechanical, electrical, plumbing, civil and structural engineering and any other
services included in this Agreement or the other Contract Documents or required
in the performance of Design/Builder's obligations hereunder.
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All consultants retained by Design/Builder in connection with the design of the
Project must receive the prior written approval of Owner.
B. Design/Builder shall perform services customarily considered as
part of the design development and in connection therewith Design/Builder shall
review and recommend alternative approaches to design and construction.
Design/Builder shall also furnish Owner with updated pricing and construction
cost estimates with each design phase and document package submittal.
C. Design/Builder shall perform services customarily considered as
part of the construction documents phase and in connection therewith
Design/Builder shall:
(i) prepare construction documents consisting of drawings and
specifications setting forth in detail the requirements for the
construction of the Project for approval by Owner, based on the approved
design development documents and any authorized adjustments;
(ii) advise Owner of any governmental approvals or variances
required for the construction of the Project, assist Owner in obtaining any
variances from applicable zoning or codes required by the design and
construction of the Project, and appear before governmental boards and
agencies and assist in filing documents required for the approval of
governmental authorities having jurisdiction over the Project to the extent
requested by Owner; and
(iii) recognize that Owner may require Design/Builder to
commence construction prior to completion of the Drawings and
Specifications and that Design/Builder may be required to prepare Drawings
and Specifications during the construction phase, and it shall be
Design/Builder's responsibility as the design-build contractor for the
Project to prepare such documents in a manner that does not delay the
progress of the Work.
D. Design/Builder shall coordinate services performed by or on behalf
of Design/Builder with those of any design professionals and consultants engaged
by Owner in connection with the Project. In addition to Design/Builder's other
obligations hereunder, Design/Builder shall provide documents for alternate
bids, provide assistance during start up operations of the Project and provide
redesign services where necessitated by errors, omissions, ambiguities,
inconsistencies in design or by conflicts with other design documents or the
Preliminary Building Plans.
E. Design/Builder shall perform its design services as expeditiously
as is consistent with professional skill and care and the orderly progress of
the Work. Design/Builder's schedule for the performance of its design services
(including time required for Owner's review and approval of submissions and for
approvals of authorities having jurisdiction over the Project shall comply with
the design schedule prepared in connection with the Design Contract and
previously approved on behalf of Owner and with the Progress Schedule required
by
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Section V(D) hereof). The approved design schedule shall not be exceeded except
for cause beyond the reasonable control of Design/Builder.
F. Design/Builder hereby grants, conveys and agrees that ownership of
the Preliminary Building Plans and the Drawings and Specifications, and copies
thereof, shall rest with Owner and that such shall be the property of Owner
whether or not the Project is executed. Design/Builder shall be permitted to
retain copies of Drawings and Specifications for information and reference.
Submission or distribution to meet official regulatory requirements or for other
purposes in connection with the Project shall not be construed as publication in
derogation of Design/Builder's and Owner's rights. Owner may utilize such
Drawings and Specifications with respect to construction, maintenance and repair
of the Project, and may utilize such Drawings and Specifications with respect to
another project if (a) Owner engages Design/Builder to perform architectural and
engineering services with respect thereto at a fee to be negotiated, or (b)
Owner engages a licensed architect with respect to said project and agrees to
hold Design/Builder harmless and defend and indemnify Design/Builder from any
claims arising out of such subsequent use of said Drawings and Specifications.
It is specifically understood and agreed that Design/Builder shall not reissue
such Drawings and Specifications on any other project. Prior to commencement of
construction, Design/Builder shall provide Owner set(s) of reproducible Drawings
and Specifications of the Project and shall update same throughout the course of
the construction to show design changes. The Contractor recognizes and agrees
that the Design Contract was entered into by and between Owner and HKS, Inc.,
and that under the Design Contract, HKS, Inc. granted ownership of all such
documents prepared by or on behalf of it to Owner. The provisions of this
Section III(F) are independent of and in addition to the terms and provisions of
the Design Contract.
G. Owner and Design/Builder acknowledge that Owner has heretofore
retained HKS, Inc. ("HKS") to provide architectural and design services in
connection with development of the Project pursuant to an agreement dated
September __, 2001, a copy of which is attached hereto as Exhibit F (the "Design
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Contract"). The Design Contract is hereby assigned to Design/Builder, together
with all rights and obligations of Owner or Developer concerning Owner or
Developer thereunder. Design/Builder represents and warrants to Owner that it
has examined design work produced to date, including without limitation the
Preliminary Building Plans identified in Exhibit B, and is satisfied with the
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work product, its quantity and quality, and assumes full responsibility
therefor. Design/Builder further assumes all duties of Owner and/or Developer
toward HKS under the Design Contract and will hereafter fulfill all obligations
of Owner and/or Developer toward HKS under the Design Contract. Design/Builder
hereby agrees to indemnify, defend and hold Owner and Developer harmless from
and against any claims which might hereafter be made against Owner and/or
Developer by HKS or by any person or entity relating to the Design Contract or
work done by HKS thereunder.
H. Design/Builder shall be responsible for all aspects of the design
of the Project and for the preparation of all Drawings, Specifications and other
design documents, whether prepared by Design/Builder, design professionals in
its direct employ, or by separate architects, engineers or other design
professionals engaged by or on behalf of Design/Builder, including without
limitation the Architect. In this regard, Design/Builder represents and
warrants that it has reviewed, examined and compared the Preliminary Building
Plans, Drawings, Specifications and
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other design documents prepared to date (at whatever stage or phase), and
Design/Builder shall be responsible to Owner for all such design matters to the
same extent as any other design service or function performed in connection with
this Agreement.
I. Owner and Design/Builder understand and agree that Design/Builder,
through the assignment of the Design Contract pursuant to Section III(G) above,
will engage HKS as Design/Builder's architect ("Architect") in connection with
the performance of Design/Builder's design responsibilities under this
Agreement. Owner hereby approves Design/Builder engagement of Architect;
provided, however, neither such engagement nor such approval shall in any way
alter, limit or relieve Design/Builder of its responsibility to Owner for the
design of the Project. Owner and Design/Builder acknowledge and agree that each
has approved Architect and that each has approved the Preliminary Building Plans
attached hereto as Exhibit B, which includes a listing of the current design
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documents and specifications. Design/Builder agrees to the preparation and
development of the design and specification of the Project pursuant to the
Design Contract, and shall perform in accordance therewith to the same extent as
if the terms thereof were set forth herein at length. Design/Builder shall not
utilize the services of architects, engineers or other design professionals
other than HKS, Inc. in connection without the prior written approval of Owner,
which Owner may grant or withhold in its sole discretion.
J. Design/Builder shall timely prepare and deliver to Owner for its
approval, but in no event later than the date set forth in the design schedule
prepared in connection with the Design Contract and the requirements of the
Progress Schedule referred to in Section V(D) hereof, design development
documents for the Project, including, but not limited to, site plans, floor
plans, elevations, sections, enlarged floor plans, updated specifications and
miscellaneous details consistent with and based on the Preliminary Building
Plans. Design/Builder shall further prepare and deliver construction documents
to Owner for its approval not later than the date set forth in such schedule.
Such documents shall include drawings and specifications setting forth in detail
all requirements for the construction of the Project consistent with and based
on the approved design development documents.
K. Owner may withhold, in its sole discretion, approval of the design
development documents or the construction documents if such documents make
changes to or do not properly set forth previously agreed-upon design concepts
or Preliminary Building Plans. Anything to the contrary contained herein or
elsewhere notwithstanding, the development of the design documents to the
construction documents and the acquisition by Design/Builder of all approvals
thereof necessary for them to be considered the Drawings and Specifications
shall be completed not later than the date set forth in the design schedule.
Section IV. Termination Prior to Construction
---------------------------------
At any time prior to commencement of construction of the Project in
the manner provided in Section VI(A) hereafter, Owner, in addition to its other
rights hereunder, at its sole option and without requirement of fault or breach
on the part of Design/Builder, may terminate this Agreement by giving written
notice of such termination and paying Design/Builder for all services rendered
to the date of termination. Such payment shall be Owner's sole and entire
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obligation to Design/Builder in the event of such termination. In no event shall
Design/Builder be entitled to anticipated or lost profits or other compensation
or damages for unperformed work.
Section V. Construction of the Project
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A. Design/Builder shall construct, equip and furnish for Owner on the
property described in Exhibit A in Irving, Texas, a three (3) story office
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building consisting of not less than 268,290 square feet and all supporting
improvements, facilities and equipment and related site work, and including
interior tenant finish as well as building shell, all of which are hereinafter
collectively referred to as the "Improvements," described and reasonably
inferable from the drawings and specifications prepared by Design/Builder in
accordance with the Preliminary Building Plans and approved by Owner pursuant to
the design development process set forth herein ("Drawings and Specifications")
enumerated in Exhibit B attached hereto and approved by Owner (as such Exhibit
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may be revised from time to time to reflect the approved Drawings and
Specifications), and in connection therewith, Design/Builder shall provide and
furnish all materials, supplies, apparatus, appliances, equipment, fixtures,
construction equipment, tools, implements, and all other facilities (hereinafter
collectively referred to as "Materials"), and all labor, supervision,
transportation, utilities, water, storage, and all other services (hereinafter
collectively referred to as "Services") as and when required for or in
connection with the construction of or for inclusion or incorporation in, the
Improvements (hereinafter referred to as the "Work"). It is understood and
agreed that the Work shall include all items expressed or implied by the
Contract Documents in order to deliver the completed Project free of gaps,
omissions or incompleteness thereof. The term "Contract Documents" shall mean
this Agreement, all the items enumerated in Exhibit B, and all change orders or
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addenda issued with respect thereto.
B. From time to time after commencement of the performance of the
Work, Owner shall provide Design/Builder with information for its preparation of
the drawings and specifications for the Allowances, if any. "Allowances" shall
refer to those items set forth in Exhibit D hereto. The amounts listed for
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Allowances in such Exhibit D are included in the Contract Sum (as hereinafter
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defined). Should the costs for performing Allowance Work differ from the amount
set forth in Exhibit D, such difference may be the subject of a Change Order and
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the Contract Sum may be adjusted pursuant to Section VIII hereinafter, subject
however to the following provisions. Design/Builder, as part of its design
responsibilities, has and will participate in the development of the items of
Work included as Allowances and in the establishment of the Allowance values set
forth in Exhibit D hereto. To the extent that the cost of an item included as
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an Allowance exceeds its Allowance value due to errors or omissions in
Design/Builder's calculations, take offs, quantities, or other information
prepared or provided by or on behalf of Design/Builder and utilized or relied
upon in establishing the Allowance, such shall not result in any adjustment in
the Contract Sum or be reimbursable as a Cost of Work. Such excess costs may,
however, be paid from the Construction Contingency pursuant to the terms
thereof.
C. Design/Builder covenants that all the Work shall be done in a good
and workmanlike manner and that all Materials furnished and used in connection
therewith shall be new, free from faults and defects in conformance with the
Contract Documents and approved by
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Owner. Design/Builder shall cause all Materials and other parts of the Work to
be readily available as required in connection with the construction of the
Improvements.
D. Design/Builder shall provide competent supervision of all phases
of the Work and shall cause the Work to be performed in accordance with the
Drawings and Specifications and all things indicated or implied therefrom.
Design/Builder shall provide the scheduling and periodic updating thereof in the
interest of completing the Improvements in the most expeditious and economical
manner (hereinafter called the "Progress Schedules"). The Progress Schedules
shall be prepared by Design/Builder prior to commencement of construction and
submitted to Owner for approval. The Progress Schedules shall incorporate the
requirements of the design schedule prepared in connection with the Design
Contract, be consistent with the outline schedule attached hereto as Exhibit E
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and shall be related to the construction of all the Improvements to the extent
required by the Contract Documents. These schedules shall indicate the dates
for the starting and completion of the various stages of construction and shall
be revised as required by the conditions of the Work, subject to Owner's
approval. The parties acknowledge and agree that notwithstanding any
theoretical delays or theoretical extensions of time for completion as may be
shown on any schedules or printouts, the Scheduled Completion Date and Milestone
Completion Dates (hereinafter defined) shall be governed by this Agreement and
shall be extended only in accordance with the procedures set forth hereinafter.
If required by Owner, Design/Builder shall also prepare and furnish project cash
flow projections, xxxxxxx charts for all key trades, and schedules for the
purchase and delivery of all equipment and material, together with periodic
updating thereof.
E. Design/Builder shall prepare all shop drawings and other detail
drawings not made a part of the Drawings and Specifications which are required
in the performance of Design/Builder's obligations hereunder, Design/Builder
will also provide and be responsible for all general conditions work such as
hoists, safety equipment, portable toilets, etc.
Section VI. Time for Performance
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A. Design/Builder shall commence performance of the Work upon
execution hereof and shall thereafter diligently continue the performance and
prosecution thereof to completion, and agrees to complete the performance of the
Work ("Completion") on or before the expiration of three hundred eighty (380)
calendar days from the date hereof (the "Scheduled Completion Date"). If
Design/Builder is delayed by any act or omission of Owner or by an employee,
agent, or representative of Owner (other than by reason of the proper exercise
of their respective rights, duties and obligations under the Contract
Documents), or by changes ordered in the Work, unforeseeable actions of public
utilities and governmental agencies, war, embargoes, causalities, acts of God or
the public enemy, national emergency, or unusually severe weather conditions
beyond that normally encountered and not reasonably anticipatable, then the
Scheduled Completion Date (and Milestone Completion Dates, if applicable) shall
be extended for a period equal to the length of such delay if within seven (7)
days after the commencement of any such delay Design/Builder delivers to Owner a
written notice of such delay stating the nature thereof and within ten (10) days
following the expiration of any such delay provides a written request for
extension of the Scheduled Completion Date (and Milestone Completion Dates, if
applicable) by reason of such delay, and such request is approved by Owner,
which approval shall not be
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unreasonably withheld. Failure to deliver any such notice or request within the
required period shall constitute an irrevocable waiver of any extension of the
Scheduled Completion Date and Milestone Completion Dates by reason of the cause
in respect of which such notice and request were required. In the case of the
continuing cause of delay of a particular nature, Design/Builder need make only
one request with respect thereto. Shortages of labor, shortages or
unavailability of standard building materials, a normal number of adverse
weather days, and the customary time periods to obtain approvals from and
inspections by municipal authorities shall in no event entitle Design/Builder to
an extension of time. No delay of the Scheduled Completion Date (or right on the
part of Design/Builder to secure any such delay) shall prejudice any right Owner
may have under this Agreement or otherwise to terminate this Agreement.
Design/Builder has included in its schedule thirty (30) work days lost
due to weather conditions in its schedule. Design/Builder will record on a
daily basis whether its job progress has been materially affected by adverse
weather conditions. Work day, as that term is used herein, shall mean and refer
to any of Design/Builder's normal eight (8) hour days, Monday through Sunday of
any given week, exclusive of customarily recognized and agreed national
holidays. No application for extension of time will be made unless or until
Design/Builder has lost in excess of the above number of days on which he had
planned and scheduled work on items that materially affect the schedule.
Design/Builder shall not be entitled to any extension of time, change order,
adjustment of the Contract Sum or other compensatory or non-compensatory relief
for events of delay or force majeure other than those specifically set forth
above in this Section VI(A), and then only pursuant to the notice procedures
hereinabove and subject to the limitations of the third paragraph of this
Section VI(A). Design/Builder acknowledges and agrees that its assumption of the
risks and responsibilities for delay is a material inducement to Owner's award
of the Agreement to Design/Builder and material consideration in Owner's
agreement to the Contract Sum, Scheduled Completion Date, Milestone Completion
Dates and other provisions of this Agreement and shall not be modified or
subject to interpretation other than as expressly set forth herein for any
reason, including without limitation, custom, practice, industry standards or
prior conduct or agreements.
Extension of time shall be Design/Builder's sole and exclusive remedy
for any event of delay hereunder, unless the same shall have been caused by acts
constituting intentional interference by Owner with Design/Builder's performance
of the Work and then only to the extent that such acts continue after
Design/Builder's written notice to Owner of such interference. Owner's exercise
of any of its rights under Section VIII regardless of the extent or number of
such changes, or Owner's exercise of any of its remedies of suspension of the
Work or requirement of correction or re-execution of any defective Work shall
not under any circumstances be construed as interference with Design/Builder's
performance of the Work.
B. In the event of the occurrence of a delay for which Design/Builder
is not entitled to an extension of time by the terms of this Agreement, Owner
may direct that the Work be accelerated by means of overtime, additional crews
or additional shifts or resequencing of the Work. All such acceleration shall
be at no cost to Owner. Owner may similarly direct acceleration in the event of
the occurrence of a delay for which Design/Builder is entitled to an extension
of time by the terms of this Agreement, and/or notwithstanding that the Work is
progressing without delay in accordance with the Progress Schedules.
Design/Builder agrees to
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perform same on the basis of reimbursement of direct cost (i.e., premium portion
of overtime pay, additional crew, shift or equipment cost and such other items
of cost requested in advance by Design/Builder and approved by Owner which
approval will not be unreasonably withheld) plus a fee not to exceed five
percent (5%) of such cost but expressly waives any other compensation therefor
unless otherwise agreed in writing in advance of performing the accelerated
work. In the event of any such acceleration, Design/Builder shall provide a plan
including his recommendations for the most effective and economical
acceleration. Acceleration which is compensible under this Section VI (B) shall
be subject to the Change Order procedure set forth in Section VIII herein.
C. As used in this Agreement, Completion shall mean Substantial
Completion, which includes all work (exclusive of minor items of unfinished work
which do not preclude beneficial use of the premises) to complete the base
building, tenant finish and other work set forth in the Contract Documents and
that each of the following shall have occurred: when (i) the Improvements have
been completed except for punch list items (i.e., minor or insubstantial details
of the construction or mechanical adjustments which do not materially interfere
with the tenant's occupancy and use of the Project for the conduct of its
business), (ii) a certificate of occupancy or its equivalent shall have been
obtained for the Project permitting entry and legal use thereof for the
installation of trade fixtures, decorations, equipment and other items to be
constructed or installed by tenants, and for tenant's business activities to be
conducted therein, and all governmental approvals required for completion have
been obtained, and (iii) Architect shall have issued a Certificate of
Substantial Completion certifying thereon the date of Substantial Completion.
Without limiting the foregoing, Substantial Completion shall not have occurred
unless and until the following have been completed, and, where applicable, are
operational, except for punch list items: (a) the exterior curtain wall, window
glass and other applicable exterior elements of the Project are completed as
necessary to be water tight, (b) all utility lines servicing the Project are
installed and capable of being used to provide the applicable utilities to the
Project, (c) the restrooms, (d) all elevators, (e) the tenant parking spaces,
(f) the public entrances and all lobbies, (g) all freight elevators, and (h) the
loading docks. Notwithstanding the delivery of a Certificate of Substantial
Completion by Architect, Substantial Completion shall not be deemed to have
occurred until Design/Builder has provided Owner written notice at least thirty-
five (35) days prior to the anticipated date of Substantial Completion.
Design/Builder shall be afforded forty-five (45) calendar days from the
Scheduled Completion Date within which to complete the minor items of unfinished
work (the punch list work) referred to above.
D. In addition to Completion as defined and specified herein and
Design/Builder's obligation to meet the Scheduled Completion Date,
Design/Builder agrees to and shall complete construction of the following items
included within the Work on or before the time set forth herein.
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Computer/Telecommunication Room Completion 45 days prior to the Scheduled Completion Date
Commissioning Phase 21 days prior to the Scheduled Completion Date
Initial FF&E Phase 14 days prior to the Scheduled Completion Date
Commissioning Phase: All mechanical, electrical and HVAC systems, energy
conservation equipment, controls, lighting systems, security systems back-up
generation and UPS, fire management systems, elevators are complete so that the
aforementioned systems can be tested for verification of compliance with the
approved Drawings and Specifications.
Computer/Telecommunication Room Completion: All construction, including but
not limited to, electrical, HVAC, raised flooring, UPS, finishes, and secured
doors, related to commencing and completing the installation and testing of all
computer equipment in the main computer/telecom room of the Project (as shown on
the approved Drawings and Specifications Building Plans) shall be complete.
Initial FF&E Phase: All construction necessary and related to commencing
the initial phase of furniture installation shall be complete, including all
areas in which furniture is to be installed and shall include all related
construction, including but not limited to, flooring, painting, above ceiling
work and any adjacent construction that may otherwise impede the progress of, or
damage, the installed furniture systems. On or about ninety (90) days after the
commencement of construction, Owner shall notify Design/Builder as to what
portion of the premises shall be included in this Initial FF&E Phase. Owner
shall also provide Design/Builder with a written schedule of its complete FF&E
phasing plan for the entire Project once it has been determined by Owner.
The above items shall be referred to as the "Milestone Completion Dates."
Design/Builder shall notify Owner in writing upon the completion of an item of
Work that is subject to a Milestone Completion Date, and in such notice shall
set forth the date completion occurred (which shall not be more than three (3)
days prior to said notice).
E. Design/Builder acknowledges that the Scheduled Completion Date and the
Milestone Completion Dates are essential to Owner's business operations,
leasing, marketing, financing and development plans and therefore time is of the
essence in meeting said dates. Design/Builder recognizes and agrees that it
shall be liable to Owner for damages, loss, cost or expense which Owner may
suffer by reason of Design/Builder's delay in meeting such dates. Design/Builder
further recognizes that its schedule and the Outline Schedule set forth as
Exhibit E hereto may be subject to reasonable adjustment or modification based
---------
on the designations set forth in Owner's Initial FF&E Phase and in the complete
FF&E phasing plan, and Design/Builder agrees that such shall not result in any
extension to any Milestone Completion
11
Date or to the Scheduled Completion date, nor shall it constitute interference
by Owner or be otherwise compensible to Design/Builder.
Section VII. Permits and Licenses
--------------------
Design/Builder shall obtain all necessary licenses, building and other
permits, and similar authorizations from governmental authorities required to
perform its obligations hereunder, and shall give all notices required by, and
otherwise comply with, all applicable laws, ordinances, rules, regulations and
restrictions. Design/Builder shall notify Owner of all conflicts between the
Drawings and Specifications and any laws, ordinances, rules, regulations and
restrictions. If Design/Builder performs any of the Work knowing, or when with
the exercise of due care it should have known, the same to be contrary to any
such laws, ordinances, rules, regulations or restrictions and fails to give
Owner written notice thereof prior to performance thereof, Design/Builder shall
bear all costs arising therefrom, which costs shall not be considered a part of
the Contract Sum.
Section VIII. Changes
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A. Owner, or if authorized by Owner, its Developer, may authorize
changes in the Work, issue additional instructions, require additional Work or
direct the omission of Work previously ordered; provided, however,
Design/Builder shall not under any circumstances proceed with any change
involving any increase or decrease in cost without prior written authorization
from Owner in accordance with the following procedure.
Owner, or if authorized by Owner, its Developer, shall order changes
in the Work by giving Design/Builder a written change order request ("Change
Order Request"), setting forth in detail the nature of the requested change.
Design/Builder shall then furnish Owner a statement setting forth in detail,
with a suitable breakdown by trades and work classifications, Design/Builder's
estimate of the changes, if any, in the Estimated Design/Build Cost attributable
to the changes set forth in such Change Order Request, a proposed adjustment, if
any, to the Scheduled and/or Milestone Completion Dates resulting from such
Change Order Request and any proposed adjustments of time and costs related to
unchanged Work resulting from such Change Order Request. If Owner gives written
approval of such estimate, such Change Order Request and estimate shall
constitute a Change Order, and the Contract Sum and Scheduled Completion and/or
Interim Dates shall be adjusted as set forth therein. Change Orders shall not
cause any modification to Design/Builder's Fee except as follows: if upon
completion of the Work the net of all additive and deductive Change Orders has
resulted in an increase in the Guaranteed Maximum Cost, then Design/Builder
shall be entitled to a fee in the amount of five percent (5%) of the cost of
such change Order Work ("Change Order Work"); if the net of all additive and
deductive Change Orders has resulted in a decrease in the Guaranteed Maximum
Cost, then Design/Builder's Fee shall be reduced by three percent (3%) of the
cost of such Change Order Work. It is further understood and agreed that
Subcontractors' and Sub-subcontractors' xxxx-up on Change Order Work shall not
exceed fifteen percent (15%), and such limitation shall be included in each
subcontract, with any amounts therefor in excess hereof being for the account of
Design/Builder and not Owner and not reimbursable as a Cost of the Work.
Design/Builder's Fee and adjustments set forth above, and the Subcontractor's
xxxx-ups,
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includes the fee, overhead and profit. Changes in the Work and Change Orders
shall include charges for design services only if and to the extent such are for
Additional Services as provided in the Design Contract. Additional Services, if
any, shall be charged without Design/Builder's Fee or Subcontractor's xxxx-ups
set forth above. Agreement on any Change Order shall constitute a final
settlement on all items covered therein. If the parties cannot agree on the cost
of Change Order Work, Design/Builder will proceed with the Work and the cost
will be determined in accordance with Section IX(B) hereof.
B. It is understood and agreed that refinement and detailing will be
accomplished from time to time with respect to the Drawings and Specifications
to be set forth in the modified Exhibit B. No adjustment in the Estimated
---------
Design/Builder's Cost, Cost of the Work, Guaranteed Maximum Cost or in the
Scheduled and/or Milestone Completion Dates shall be made unless such refinement
or detailing results in changes in the scope, quality, function and/or intent of
the Drawings and Specifications not reasonably inferable or anticipatable by a
design-build construction manager/general contractor of Design/Builder's
experience and expertise.
C. Change Order requests shall not be considered by Owner unless
prior written notice of the proposed Change Order is submitted to the Developer,
together with documentation detailing the proposed increase or decrease in the
Contract Sum caused by the proposed Change Order before commencement of the Work
contemplated therein. No act, conduct or practice of Owner, Developer or any
other person or party shall constitute or result in a waiver of this
requirement, it being expressly understood and agreed that such requirement may
only be waived in writing. Design/Builder shall price Change Orders which
involve material scope changes to the Project on the basis of competitive
pricing for such Work.
Section IX. Payments
--------
A. In full consideration of the full and complete performance of the
Work and all other obligations of Design/Builder hereunder, Owner shall pay to
Design/Builder a sum of money equal to the "Contract Sum" which is defined to be
the total of (i) the Cost of the Work, as hereinafter defined, (ii) the
Architect's Fee and Reimbursables, (iii) Design/Builder's Fee listed below,
subject to adjustment as provided in the Contract Documents, and (iv) the
Construction Contingency, which Contract Sum shall not exceed Twenty Five
Million, Three Hundred Twenty Six Thousand, Seventeen and 00/100 Dollars
($25,326,017.00) (hereinafter referred to as the "Guaranteed Maximum Cost")
subject to adjustments as provided in the Contract Documents, which Guaranteed
Maximum Cost consists of the following:
Estimated Design/Builder's Cost $22,583,252.00
(including Allowances)
Architect's Fees and Reimbursables 1,520,657.00
Design/Builder's Fee 722,108.00
Construction Contingency 500,000.00
Guaranteed Maximum Cost $25,326.017.00
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The Architect's Fee and Reimbursables includes the unpaid balance of
the Design Contract. Such amount includes all fees, reimbursable expenses and
other amounts payable for design, architectural or engineering services under
the Design Contract or otherwise in connection with Design/Builder's design
obligation hereunder, and Design/Builder assumes responsibility for all amounts
now or hereafter owing to Architect.
The "Design/Builder's Fee" as listed above is defined to be the amount
equal to the fixed sum of Seven Hundred Twenty-Two Thousand One Hundred Eight
and 00/100 Dollars ($722,108.00) (subject to adjustment for the cost of Change
Order Work as provided in Section VIII hereof) subject to the adjusted
Guaranteed Maximum Cost. In the event that the Cost of the Work is less than the
adjusted Estimated Design/Builder's Cost, then Design/Builder's Fee shall remain
Seven Hundred Twenty-Two Thousand One Hundred Eight and 00/100 Dollars
($722,108.00) subject to adjustment pursuant to Section VIII hereof. In the
event that the Cost of the Work is greater than the adjusted Estimated
Design/Builder's Cost and less than the adjusted Guaranteed Maximum Cost, then
Design/Builder's Fee shall be equal to the Cost of the Work subtracted from the
adjusted Guaranteed Maximum Cost (minus the Architect's Fee and Reimbursables
and minus the Construction Contingency), subject to further adjustment pursuant
to the provisions of Section VIII hereof. In the event that the Cost of the Work
shall exceed the Guaranteed Maximum Cost, adjusted as provided herein,
Design/Builder shall pay such excess from its own funds and Owner shall not be
required to pay any part of such excess, and Design/Builder shall have no claim
against Owner on account thereof.
The "Construction Contingency" set forth in this Section IX is
included within the Guaranteed Maximum Cost and is the maximum sum available to
cover the costs (including impact costs) resulting from unforeseen conditions
and events not evidenced at the time of execution of this Agreement, such as (1)
refinement of details of design within the scope and standards of quality and
quantities on which the estimate was based, (2) abnormal field conditions, (3)
impact costs on materials and labor due to Change Orders, (4) time extensions,
(5) delays due to unusually severe weather conditions not reasonably
anticipatable, or (6) other causes of lost time which result in added costs or
claims which are not otherwise recoverable hereof.
The use of the Construction Contingency shall be mutually agreed upon
between Owner and Design/Builder; provided, however, that Design/Builder shall,
as a part of the monthly progress report, provide Owner with a statement on the
use of the Construction Contingency setting out charges made, if any, against
the Construction Contingency, and further noting the balance remaining in the
Construction Contingency. No sums may be charged to the Construction Contingency
except upon the mutual agreement of Owner and Design/Builder and then only to
the extent that the same have been paid or are to be paid by Design/Builder. All
charges to the Construction Contingency will be pursuant to appropriate Change
Order decreasing the amount of the Construction Contingency and increasing the
Estimated Design/Builder's cost with no adjustment of the Guaranteed Maximum
Cost. Any Construction Contingency remaining at the time of Final Payment shall
innure to the benefit of Owner.
In the event that the Cost of the Work shall be less than the
Estimated Design/Builder's Cost, adjusted as provided herein, the difference
between such Cost of the Work and such
14
Estimated Design/Builder's Cost shall constitute "Savings" (hereinafter so
called). Twenty-five percent (25%) of such Savings shall be paid to
Design/Builder as an additional fee ("Additional Fee"); the balance of all such
Savings shall accrue to Owner. In no event shall sums included under the
Construction Contingency, as Allowances or resulting from deductive Change
Orders or other reductions in the scope of the Project be used in the
determination of Savings; provided, however, that the foregoing shall not result
in an exclusion from Savings of reductions in costs achieved through the use of
substitutions or alternatives approved by Owner and first proposed by
Design/Builder after the execution hereof. Approval of any such substitutions or
alternatives shall be at Owner's sole discretion.
It is agreed that Design/Builder's Fee and any possible earnings under
the Additional Fee paragraph above are Design/Builder's full and complete fee
compensation for performing both the design and construction of the Work as
listed herein.
B. The term "Cost of the Work" shall mean a sum of money equal to the
total of all of Design/Builder's Costs, as hereinafter defined. The term
"Estimated Design/Builder's Cost" shall mean that sum of money set forth in
Section IX(A) opposite the term "Estimated Design/Builder's Cost," subject to
adjustment as provided in the Contract Documents, which sum is Design/Builder's
estimate of all Design/Builder's Costs that are to be incurred and paid by
Design/Builder in the performance of the Work. The term "Design/Builder's
Costs" shall mean those costs necessarily incurred and paid by Design/Builder in
connection with the proper performance of all the Work. Such Design/Builder's
Costs shall be at rates not higher than the standard paid in the locality of the
Work, except with prior written consent of Owner, and shall include and be
limited to the following items:
(1) Wages paid for labor, including without limitation that of
design personnel in the direct employ of Design/Builder in the performance
of the design or construction of the Work under applicable collective
bargaining agreements, or under a salary or wage schedule agreed upon by
Owner and Design/Builder, and including welfare or other fringe benefits,
if any, as may be payable with respect thereto, and usual vacation pay and
incentive bonuses made by Design/Builder to its key employees engaged at
the construction site.
(2) Salaries and fringe benefits of Design/Builder's design
professional, supervisory or administrative personnel when assigned to and
working on the Project and/or stationed at the field office, in whatever
capacity employed when necessary for the performance of the Work; such
personnel being subject to the approval in advance by the Developer.
Personnel engaged, at shops or on the road, in expediting the inspection,
production or transportation of material (including equipment) for the
Work. The number of employees in these classifications, and the rates of
pay, shall be subject to the prior approval of Owner.
(3) Cost of contributions, assessments or taxes for such items as
Unemployment Compensation and Social Security, insofar as such cost is
based on the wages, salaries, or other remuneration paid to employees of
Design/Builder referred to in Section IX(B) (1) and (2) hereof.
15
(4) Reasonable relocation, transportation, traveling and lodging
expenses (as approved by Owner) of representatives of Design/Builder
incurred in the discharge of duties related to the Work.
(5) The cost (including transportation, storage, operating and repair
costs except of a capital nature) of all materials, equipment, temporary
structures, small tools not owned by workmen and supplies purchased or
rented for use in the performance of the Work. Such costs shall include a
fair rental not to exceed eighty percent (80%) (unless otherwise approved
by Owner) of the published rates based on "Compilation of Nationally
Averaged Rental Rates", most recent edition, of the Associated Equipment
Distributors, approved by Owner in advance, for all tools and equipment
furnished by Design/Builder from its own stock; provided that the rental
paid for such equipment shall not exceed the market value of such equipment
at the time first utilized in connection with the Work. Owner reserves the
right to dispose of all such materials, equipment, temporary structures,
tools and supplies which shall have been purchased, when no longer required
for the Work, and Design/Builder's Costs shall be credited for the proceeds
therefrom or the reasonable value of any items with respect to which Owner
takes title.
(6) Amounts due under all subcontracts made in accordance with the
provisions of the Contract Documents, including, without limitation
contracts or subcontracts with architects, engineers or other design
professionals for the design of the Work.
(7) The cost of telephone, telegrams, postage, photographs,
blueprints, office supplies, first aid supplies and related miscellaneous
costs incurred in connection with the Work.
(8) Premiums on bonds and insurance, if any, that Design/Builder is
obligated to secure and maintain under the terms of the Contract Documents
and such other insurance and bonds as may be required, subject to the prior
approval of Owner.
(9) Damages for patent infringements and costs of defending suits on
account of same to the extent that such damages or costs shall have arisen
out of the specification by Owner of a particular process or product of a
particular manufacturer and the infringement was unknown to Design/Builder
despite the exercise of due care. Design/Builder hereby agrees to hold
harmless Owner against any and all other claims on account of patent
infringement arising out of Work.
(10) Fees for all municipal and other permits, prorated AGC Fees to
the extent attributable to labor costs of Design/Builder is connection with
the performance of the Work, licenses and patents, surveys and royalties,
if any.
(11) The cost of obtaining and using all utility services required for
the Work.
16
(12) The cost of crossing or protecting any public utility, if
required, and as directed by Owner.
(13) The cost of removal of all debris. (All subcontracts shall
require subcontractors to remove all debris created by their activities and
Design/Builder shall exercise its best efforts to enforce such requirements
or to effect an appropriate back charge to those subcontractors who fail to
meet their requirements in this regard.) Provided, however, Design/Builder
shall not be required to remove debris created by Owner's separate
contractors except pursuant to Change Order procedure set forth
hereinabove.
(14) The cost and expenses (actually sustained by Owner in connection
with the Work) of protecting and repairing adjoining property, if required
(Owner's prior approval for repairs will be obtained except in
emergencies), and of settlements for same made with the written consent of
Owner, except to the extent that any such cost is reimbursable by insurance
or otherwise, or is the responsibility of Design/Builder, or is due to the
failure of Design/Builder to comply with the requirements of the Contract
Documents with respect to insurance or to the failure of any officer of
Design/Builder or of any of its representatives having supervision or
direction of the Work to exercise good faith or at least the standard of
care normally exercised in the conduct of the business of a design/build
general contractor in the general vicinity of the project in any of which
events such expenses shall not be included in Design/Builder's Costs.
(15) Federal, state, municipal, sales, use and other taxes, all with
respect to Services performed or materials or equipment furnished for the
Work and for which Design/Builder is liable. It is understood that none of
the foregoing includes federal state or local income or franchise taxes.
(16) Costs incurred due to an emergency affecting the safety of
persons and property, unless caused by the act or neglect of
Design/Builder, any subcontractor, supplier or laborer, or their employees
or agents.
(17) All reasonable costs and expenditures necessary for the
operation of the field office, such as stationery, supplies, blueprinting,
furniture, fixtures, office equipment, etc.
(18) Losses and expenses including insurance deductibles, not
compensated by insurance or otherwise, sustained by Design/Builder in
connection with the Work provided they have resulted from causes other than
the actual fault, neglect or responsibility of Design/Builder. Such losses
shall include settlements made with the written consent and approval of
Owner. No such losses and expenses shall be included in the Cost of the
Work for the purpose of determining Design/Builder's Fee. If, however,
such loss requires reconstruction and Design/Builder is placed in charge
thereof, he shall be paid for its services a fee proportionate to that
stated in Section IX(A).
17
(19) Any other expenses or charges incurred, with the prior written
approval of Owner, in the prosecution of the Work.
C. Design/Builder agrees to furnish and perform without other charge than
as a part of Design/Builder's Fee, the following services and costs:
(1) Furnishing information as to the cost and availability of
materials and methods of construction which may be of value to
Design/Builder or Owner in determining the final architectural, structural,
mechanical and electrical design of the Work.
(2) The services and related expenses, except as otherwise provided
in Section IX(B) hereof, of any officers or general office supervisory
personnel of Design/Builder and of personnel in Design/Builder's personnel,
legal, labor relations, insurance and tax departments and all other costs
of doing business, services and related expenses required to maintain and
operate Design/Builder's general offices and any established branch
offices, other than the field office for the Work.
(3) The services of Design/Builder's purchasing, estimating and
accounting departments and clerical staff at Design/Builder's general or
established branch office.
(4) Salary of any person employed during the execution of the Work at
the main office of Design/Builder, except as otherwise provided in Section
IX(B) hereof or in any regularly established branch office of
Design/Builder, unless such salary is included above in this definition or
is specifically authorized in writing in advance by Owner to be included
within the Cost of the Work.
(5) Any part of Design/Builder's capital expenses, including interest
on Design/Builder's capital employed for the Work.
(6) Overhead or general expenses of any kind, except as may be
expressly included above in the description and enumeration of the
specifications included in the term Cost of the Work.
(7) Amounts required to be paid by Design/Builder for federal, state
or local income or franchise taxes.
(8) Except as otherwise provided in Section IX(B) hereinabove, costs
due to the negligence of Design/Builder, any subcontractor or supplier
employed by Design/Builder or anyone directly or indirectly employed by any
of them, or for whose acts any of them may be liable, including but not
limited to the correction of erroneous, omitted or defective design or
construction of the Work, disposal of materials and equipment wrongfully
supplied, or making good any damage to property.
(9) Interest charges on any equipment, materials, or other costs of
Work.
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(10) Any off-site storage areas for Design/Builder's materials,
equipment, and tools together with all checking and store keeping.
(11) The costs of any item not specifically and expressly included in
the items described above in Section IX(B).
(12) Costs in excess of the Estimated Design/Builder's Cost.
D. On or before the twenty-fifth (25th) day of each month during the
performance of the Work, Design/Builder shall submit to Owner for its approval a
request for payment ("Request for Payment") in form and substance satisfactory
to Owner (simultaneously therewith sending copies to such other parties as Owner
may direct). Each Request for Payment shall be for a sum equal to (i) all of
Design/Builder's Cost incurred during the preceding month and (ii) ninety
percent (90%) of the pro rata portion of Design/Builder's Fee attributable to
Design/Builder's Cost set forth in such Request for Payment; provided, however,
that prior to the date of the Final Request for Payment, as hereinafter defined,
the aggregate of Design/Builder's Fee payments shall not exceed ninety percent
(90%) of Design/Builder's Fee amount as stated in Section IX(A) herein.
Design/Builder's Costs shall be segregated and detailed in a manner satisfactory
to Owner. Requests for Payment shall include the value of materials or
equipment not incorporated in the Work but delivered and suitably stored at the
site or at some location agreed upon. Title to all such equipment and materials
shall pass to Owner upon payment therefor or incorporation in the Work,
whichever shall first occur, and Design/Builder shall prepare and execute all
documents necessary to effect such transfer of title.
In each Request for Payment, Design/Builder shall certify that such Request
for Payment represents the amount due to Design/Builder under the terms of
Section IX(B) and shall also certify as follows:
"There are no known mechanics' or materialmen's liens outstanding at the
date of this requisition, all due and payable bills with respect to the Work
have been paid to date or are included in the amount requested in the current
application, and except for such bills not paid but so included, there is no
known basis for the filing of any mechanics' or materialmen's liens on the Work,
and releases from all subcontractors and materialmen have been obtained in such
form as to constitute an effective release of lien under the applicable laws of
the State of Texas."
Design/Builder shall furnish with each Request for Payment certification by
the Architect that all amounts so requested by Design/Builder are properly due
and owing and that the Work corresponding to the amounts requested in each
Request for Payment has been properly performed and completed in accordance with
this Agreement, the Drawings and Specifications, the Preliminary Building Plans
and the other Contract Documents. Architect shall make such certifications as if
Architect was engaged separately by Owner to provide architectural and contract
administration services.
Design/Builder shall furnish with each Request for Payment a waiver and
release of lien for itself and, beginning with the second Request for Payment,
for each of its subcontractors and suppliers having a contract or purchase order
of $10,000.00 or more, together with any other
19
such forms required by Owner or Owner's title insurer or lender in order to
assure an effective release of mechanics' or materialmen's liens in compliance
with the applicable laws of the situs of the Project.
Design/Builder shall submit with each Request for Payment a monthly
progress report which shall set forth in detail the status of the Project as of
the date of such Request for Payment. The format of the progress report shall be
determined by Owner prior to submission of the initial Request for Payment,
however, the progress reports shall at a minimum describe those aspects of the
Work which have been commenced and the status thereof, enumerate the trades and
subcontractors then involved in the Work and the amount of personnel employed on
the Project by them, set forth the schedule for major portions of the Work for
the coming month, and include Design/Builder's appraisal of the progress and
cost of the Work together with recommendations as to any action which is
required by Owner. Each monthly progress report shall be accompanied by an
update of the CPM schedule (diagram only), the form of which shall be mutually
agreed to by Owner and Design/Builder at the time the format for the progress
report is determined. Additionally, Design/Builder shall provide Owner with
monthly progress photos of the Work. Design/Builder shall also furnish with each
Request for Payment complete cost detail and supporting documentation
substantiating the amounts set forth in the Request for Payment, including
copies of subcontractors' pay requests, invoices, labor sheets and other
information substantiating Design/Builder's right to payment, summarized and
verified by Design/Builder's accounting department. Owner may make such
adjustments to Design/Builder's previous, current or subsequent Requests for
Payment as warranted by Owner's review of the supporting documentation submitted
by Design/Builder.
Design/Builder shall not submit any Request for Payment which is
incomplete, inaccurate or lacks the detail, specificity or supporting
documentation required by this Section IX(B). Any Request for Payment that is
deficient in any such manner shall not constitute a valid Request for Payment,
and Design/Builder shall be required to resubmit said Request for Payment in
proper form prior to Owner incurring any obligation to make payment on account
thereof. Design/Builder specifically agrees that it shall not include in any
Request for Payment sums attributable to Work which Owner or Design/Builder have
rejected or which otherwise constitute or relate to applications for payments,
xxxxxxxx or invoices of subcontractors or suppliers which Design/Builder
disputes or for any other reason does not intend to pay.
Owner shall review each such Request for Payment and make such exceptions
as Owner reasonably deems necessary or appropriate under the current
circumstances. In no event shall Owner be required to make payment for items
disallowed by its lender(s).
On or about thirty (30) days following receipt of a Request for Payment
(unless such date falls on a weekend or holiday, then on the next business day)
and provided Design/Builder has submitted its Request for Payment and supporting
documentation in the manner and detail required by this Agreement, Owner shall
make payment to Design/Builder in the amount approved subject to Section IX(F)
hereof. The payment of any Request for Payment by Owner, including the final
Request for Payment, does not constitute approval or acceptance of any item of
cost in such Request for Payment.
20
Design/Builder agrees that ten percent (10%) of the amount due under each
subcontract shall be retained by Owner until final payment ("Final Payment"),
except that upon mutual agreement by Owner and Design/Builder, and with Owner's
lender's prior approval, payment in full may be made to those subcontractors
whose work is fully completed during the early stages of the Project or reduced
with respect to other contractors at such times as the parties may mutually
agree. Agreement to any such reduction shall not constitute a waiver of or
prejudice Owner's right to subsequently reinstitute full retainage should
circumstances justify such action in Owner's sole judgment.
Retainage under subcontracts shall be included in Design/Builder's Request
for Payment for the purpose of indicating the value of the Work performed,
however, Design/Builder shall not request payment thereof from Owner until such
retainage is actually payable hereunder.
Thirty (30) days after final completion of the Work and acceptance thereof
by Owner or as soon thereafter as possible, Design/Builder shall submit a final
request for payment ("Final Request for Payment") setting forth all amounts due
and remaining unpaid to Design/Builder. The Additional Fee, if any, shall be due
and payable only after Design/Builder's Costs are finally established and agreed
to by Design/Builder and Owner. The Final Request for Payment shall not be made
until Design/Builder delivers to Owner a complete release of all liens arising
out of this Agreement and an affidavit that so far as Design/Builder has
knowledge or information the release includes all Materials and Services for
which a lien could be filed. Design/Builder may, if any subcontractor or
supplier refuses to furnish a release in full, furnish a bond satisfactory to
Owner, Owner's title insurer and lender to indemnify Owner and such other
parties against any lien. Upon approval by Owner, Owner shall pay the amount due
under such Final Request for Payment. Anything to the contrary notwithstanding,
Final Payment shall not be made prior to thirty (30) days following final
completion of the Work.
E. In no event shall any interest be due and payable by Owner to
Design/Builder, any subcontractor or any other party on any of the sums retained
by Owner pursuant to the Contract Documents.
F. Any provision to the contrary notwithstanding, Owner shall not be
obligated to make payment hereunder if one or more of the following conditions
exists:
(1) Design/Builder is in default of any of its obligations hereunder
or otherwise is in default under any Contract Documents;
(2) Any part of such payment is attributable to Work that is defective
or not performed in accordance with the Drawings and Specifications;
provided, however, payment shall be made for Work performed in accordance
with the Drawings and Specifications and not defective;
(3) Design/Builder has failed to make payments promptly to
subcontractors or for material or labor used in the Work for which Owner
has made payment to Design/Builder;
21
(4) Owner in good faith determines that the portion of the Guaranteed
Maximum Cost then remaining unpaid will not be sufficient to complete the
Work in accordance with the Drawings and Specifications and the Preliminary
Building Plans, whereupon no additional payments will be due unless and
until Design/Builder, at its sole cost, performs a sufficient portion of
the Work so that the portion of the Guaranteed Maximum Cost remaining
unpaid is determined by Owner to be sufficient to complete the Work, or
(5) Owner in good faith determines that Design/Builder has not or will
not with prompt acceleration meet the Scheduled Completion Date.
No partial payment or release of retainage shall constitute final
acceptance or approval of the Work to which such partial payment relates or
relieves Design/Builder of any obligations hereunder.
G. Except for Design/Builder's Fee and the Additional Fee, if any,
Design/Builder shall use the sums advanced to it pursuant to this Section IX
solely for the purpose of performance of the Work and the design of the Project
and the construction of the Improvements in accordance with the Drawings and
Specifications. No provision hereof shall be construed to require Owner to see
to the proper disposition or application of the monies paid Design/Builder.
H. On or before the date of submittal of the initial Request for Payment,
Design/Builder shall furnish to Owner and Owner's lender an affidavit,
subordination and lien waiver agreement executed by Design/Builder. The
agreements shall be in form and substance satisfactory to Owner and Owner's
lender. Each party executing such agreement shall agree to subordinate its liens
for Work to be performed or Materials to be furnished to the liens and security
interests securing payment of any loan made by Owner's lender, and shall furnish
a release of all liens for Work performed and Materials furnished to the date of
such agreement. Each such party shall certify that all amounts owing to such
party through the date of such agreement have been paid in full, or if not paid
in full, shall set forth all such unpaid amounts.
I. Design/Builder shall within ten (10) days following receipt of payment
from Owner pay all bills for labor and material performed and furnished by
others in connection with the design and/or construction of the Improvements and
the performance of the Work, and upon request by Owner shall provide Owner with
evidence of such payment. Design/Builder's failure to make payments within such
time shall constitute a material breach of this Agreement.
J. Upon completion of the Work or the appropriate parts thereof, and
subject to Owner's prior approval thereof and right to take title thereto
pursuant to Section IX(B)(5) hereof, Design/Builder shall sell to a third party
or transfer to itself at the then fair market value thereof, all hoists,
scaffolding, forms, hand tools and other items purchased for use in the Work
with funds furnished as a part of Design/Builder's Costs. The amounts received
from such sale (or the fair market value thereof in the case of transfer to
Design/Builder) shall be credited against the amounts due from Owner hereunder.
22
Section X. Discounts Rebates and Refunds
-----------------------------
Design/Builder shall take affirmative steps to ensure that is takes
full advantage of any and all available discounts, rebates, refunds and returns.
All cash discounts shall accrue to the Cost of the Work, and Design/Builder
shall notify Owner of the availability of such cash discounts in order that
Owner may make available funds therefor. If Design/Builder shall fail to so
notify Owner, such cash discount shall accrue to the Cost of the Work. All
trade discounts, rebates and refunds, and all returns from sale of surplus
materials and equipment shall accrue to the Cost of the Work and Design/Builder
shall endeavor to make provisions for the securing thereof. Any discounts
accruing to the Cost of the Work pursuant to this paragraph shall not result in
adjustment of the Guaranteed Maximum Cost.
Section XI. Compensation Retained by Owner
------------------------------
Design/Builder acknowledges that the Scheduled Completion Date and
Milestone Completion Dates are essential to Owner's leasing, marketing,
financing and development plans and therefore TIME IS OF THE ESSENCE in meeting
said dates. Design/Builder agrees that from the Contract Sum to be paid to
Design/Builder in accordance with the Contract Documents, Owner may retain as
"Delay Damages" twelve thousand five hundred and 00/100 Dollars ($12,500.00) per
day for each of the first forty (40) calendar days (including Saturdays, Sundays
and holidays) the Work remains uncompleted, which elapse between the time the
Work (or the relevant portion thereof) should have achieved Milestone or
Substantial Completion under the terms of the Contract Documents and the date
the Work (or the relevant portion thereof) actually achieves Milestone or
Substantial Completion, as applicable. Design/Builder further agrees that the
Delay Damages shall be at the rate of twenty-five thousand and 00/100 Dollars
($25,000.00) per day for each such day after the first forty (40) days that such
Work remains uncompleted. The foregoing amounts of Delay Damages shall
compensate Owner solely for the Project's unavailability and Owner's resulting
inability to use the Project for its intended purposes, and do not include (i)
any damages, additional costs or extended costs incurred by Owner for extended
administration of this Agreement or by Owner's agents, consultants, or
independent contractors for extended administration, (ii) any increase in
financing costs resulting from the delay, (iii) actual costs incurred by Owner's
tenant and assessed or charged to Owner (including but not limited to costs of
storing tenant's furniture, fixtures, equipment or materials and cost of
overtime to complete the installation thereof), or (iv) any additional services
relating to, or arising as a result of the delay. Owner shall be entitled to
claim against Design/Builder for its actual damages, including those as set
forth herein, which costs shall be computed separately. Together with the per
xxxx Xxxxx Damages, an amount equal to Owner's actual damages shall be either
deducted from the Contract Sum and/or billed to Design/Builder. The parties
acknowledge and agree that the cost and expense to Owner for its inability to
use the Project are difficult if not impossible to determine, and the foregoing
per diem amounts represent amounts which Design/Builder acknowledges and agrees
Owner shall be entitled to recover and withhold without further demonstrating or
evidencing the nature, source, cause or value of Owner's damages. The sums set
forth above are not to be construed in any way as a penalty, nor shall they
constitute liquidated damages or limit Owner from the recovery of the other
actual damages provided for herein and excluded from the damages for delayed
availability and use of the Project by Owner.
23
Section XII. Subcontracts and Purchase Orders
--------------------------------
A. Design/Builder shall invite bids from, and enter into contracts
and material orders with only subcontractors and suppliers who have first been
approved by Owner. After receiving such bids, Design/Builder shall analyze them
and make recommendations for awards, accompanying its recommendation with all
pertinent data required for decision upon the award, and certifying that, to the
best of its knowledge, the bid of the recommended subcontractor or supplier is
bona fide, fair and reasonable. All subcontracts shall, so far as practicable,
contain unit prices and any other feasible formula for use in the determination
of the cost of changes in the Work. Design/Builder agrees to hold all
subcontractors, including all persons directly or indirectly employed by them,
responsible for any damages due to breach of contract or any negligent act and
to diligently endeavor to effect recoveries of such damages.
B. Design/Builder shall contract solely in its own name and behalf
and not in the name or behalf of Owner, with the specified subcontractor or
supplier. Design/Builder's subcontract and purchase order forms shall be
subject to approval of Owner and shall provide that subcontractor shall perform
its portion of the Work in accordance with all applicable provisions of this
Agreement and the other Contract Documents. Design/Builder shall submit its
subcontract and purchase order forms to Owner for approval prior to use in
connection with the project, and shall promptly deliver to Owner a copy of all
executed subcontracts and purchase orders entered into in connection with the
Project.
C. If the net effect of Owner's designation as the selected
subcontractors and suppliers (taking into account both subcontractors and
suppliers whose bids exceed those of bidders recommended by Design/Builder and
those whose bids are less than bidders recommended by Design/Builder) is the
selection of subcontractors and suppliers whose bids, in the aggregate, exceed
those of the bidders recommended by Design/Builder and approved by Owner as
complying with the Drawings and Specifications, the Estimated Design/Builder's
Cost and the Guaranteed Maximum Cost shall be increased by the amount by which
the bids of the designated subcontractors and suppliers exceed the bids of the
bidders recommended by Design/Builder. Design/Builder's Fee set forth in
Section IX hereof shall not be increased on account of Owner's designation of
subcontractors or suppliers, regardless of the number of such designations or
the resulting increase in the Guaranteed Maximum Cost, if any.
D. All subcontracts shall, so far as practicable, contain unit prices
and any other feasible formula for use in the determination of the cost of
changes in the Work. Design/Builder agrees to hold all subcontractors,
including all persons directly or indirectly employed by them, responsible for
any damages due to breach of contract or any negligent act and to diligently
endeavor to effect recoveries of such damages.
Section XIII. Insurance and Indemnification
-----------------------------
A. Design/Builder shall provide Builder's Risk insurance on the terms
and conditions set forth in the General Conditions of the Contract attached
hereto as Exhibit I or in Exhibit C hereto, as applicable. Design/Builder shall
--------- ---------
also provide and cause its subcontractors to provide
24
workers' compensation and liability insurance coverages of the types and on the
terms and conditions set forth in the General Conditions hereto or Exhibit C
---------
hereto, as applicable, and the errors and omissions insurance in an amount of
not less than $1,000,000 of coverage of those providing design services as set
forth in the General Conditions or Exhibit C hereto, as applicable. The costs of
---------
all such insurance is included in the Estimated Design/Builder's Cost and the
Guaranteed Maximum Cost.
B. DESIGN/BUILDER SHALL TO THE FULLEST EXTENT PERMITTED BY LAW
INDEMNIFY, DEFEND AND HOLD HARMLESS DEVELOPER, OWNER AND THE TENANT(S) OF THE
PROJECT, AND THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES RELATED ENTITIES AND THE
PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS AND EMPLOYEES THEREOF FROM AND
AGAINST ANY AND ALL CLAIMS, LIABILITIES, LOSSES, DAMAGES, COST OR EXPENSE
(INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES) ARISING OUT OF,
RESULTING FROM OR OCCURRING IN CONNECTION WITH THE PERFORMANCE OF THE WORK THAT
IS (i) ATTRIBUTABLE TO ANY BODILY OR PERSONAL INJURY, SICKNESS, DISEASE OR DEATH
OF ANY PERSON OR ANY DAMAGE OR INJURY TO OR DESTRUCTION OF REAL OR PERSONAL
PROPERTY (OTHER THAN THE WORK ITSELF) INCLUDING THE LOSS OF USE THEREOF, AND
(ii) CAUSED IN WHOLE OR IN PART BY ANY NEGLIGENT, STRICT LIABILITY OR OTHER ACT
OR OMISSION OF DESIGN/BUILDER, ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR, THEIR
RESPECTIVE AGENTS OR EMPLOYEES OR ANY OTHER PARTY FOR WHOM ANY OF THEM MAY BE
LIABLE, AND REGARDLESS OF WHETHER SUCH IS CAUSED IN PART BY THE NEGLIGENT STRICT
LIABILITY OR OTHER ACT OR OMISSION OF A PARTY OR PARTIES IDENTIFIED HEREUNDER.
DESIGN/BUILDER SHALL INDEMNIFY AND SAVE HARMLESS EACH OF THE PARTIES
INDEMNIFIED UNDER THIS SECTION XIII FROM ANY AND ALL CLAIMS, LIENS, CLAIMS OF
LIENS (EXCEPT LIENS OR CLAIMS FOR LABOR, MATERIAL OR EQUIPMENT FOR WHICH THE
OWNER HAS NOT PAID THE DESIGN/BUILDER), DEMANDS, CAUSES OF ACTION OR SUITS OF
WHATEVER NATURE ARISING OUT OF THE SERVICES, LABOR, EQUIPMENT OR MATERIALS
FURNISHED BY DESIGN/BUILDER, INCLUDING WITHOUT LIMITATION THOSE ASSERTING
LABORERS', MECHANICS' OR MATERIALMEN'S LIENS (EXCEPT LIENS OR CLAIMS FOR LABOR,
MATERIAL, OR EQUIPMENT FOR WHICH THE OWNER HAS NOT PAID THE DESIGN/BUILDER), OR
ARISING OUT OF ANY ACTUAL OR ALLEGED VIOLATION OF LAWS, CODES, REGULATIONS,
RULES, ORDINANCES OR ORDERS OF ANY PUBLIC AUTHORITY OCCASIONED BY THE NEGLIGENCE
OR OTHER ACTS OR OMISSIONS OF DESIGN/BUILDER, THEIR RESPECTIVE AGENTS OR
EMPLOYEES OR ANY PARTY FOR WHICH ANY OF THEM MAY BE LIABLE, AND REGARDLESS OF
WHETHER SUCH IS CAUSED IN PART BY THE NEGLIGENT, STRICT LIABILITY OR OTHER ACT
OR OMISSION OF A PARTY OR PARTIES INDEMNIFIED HEREUNDER; PROVIDED, HOWEVER, THE
FOREGOING INDEMNITY SHALL NOT INCLUDE THE PORTION OF SUCH CLAIMS, DEMANDS OR
CAUSES OF ACTION FOR WHICH A PARTY INDEMNIFIED HEREUNDER IS DETERMINED TO BE
LIABLE DUE TO ITS OWN INDEPENDENT ACTS OR OMISSIONS.
THE FOREGOING INDEMNIFICATION OBLIGATIONS SHALL NOT BE CONSTRUED TO
NEGATE, ABRIDGE OR OTHERWISE REDUCE ANY OTHER RIGHTS OR OBLIGATIONS OF INDEMNITY
WHICH WOULD OTHERWISE EXIST IN FAVOR OF A PARTY INDEMNIFIED HEREUNDER NOR SHALL
IT LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES,
COMPENSATION OR BENEFITS PAYABLE UNDER WORKERS' OR WORKMEN'S COMPENSATION ACTS,
25
DISABILITY BENEFIT ACTS OR OTHER EMPLOYEE BENEFIT ACTS. THE INDEMNITY
OBLIGATIONS CONTAINED IN THIS SECTION XIII SHALL SURVIVE ANY COMPLETION,
TERMINATION, ABANDONMENT OR EXPIRATION OF THIS AGREEMENT.
Section XIV. Liens
-----
A. Design/Builder shall not voluntarily permit any laborer's,
materialmen's, mechanics', or other similar lien to be filed or otherwise
imposed on any part of the Work or the property on which the Work is performed.
If any laborer's, materialmen's, mechanics, or other similar lien or claim
thereof is filed and Design/Builder does not cause such lien to be released and
discharged forthwith or file a bond in lieu thereof, Owner shall have the right
to pay all sums necessary to obtain such release and discharge and deduct all
amounts so paid from the Contract Sum. Design/Builder shall indemnify and hold
harmless Owner from all claims, losses, demands, causes of action or suits of
whatever nature arising out of any such lien.
B. Design/Builder shall and hereby does subordinate any and all
liens, rights and interest (whether xxxxxx or inchoate and including, without
limitation, all mechanics' and materialmen's liens under the applicable laws and
statutes of the state of the situs of the project) owned, claimed or held, or to
be owned, claimed or held by Design/Builder or anyone else acting or claiming
through or under Design/Builder in and to any part of the Work or the property
on which the Work is performed, to the liens securing payments of sums now or
hereafter borrowed by Owner in connection with construction of the Improvements.
Design/Builder shall execute such further and additional evidence of the
subordination of any and all liens, rights and interest as Owner's lenders may
require, including the form of Subordination Agreement attached hereto as
Exhibit G. The subordination of lien is made in consideration of and as an
---------
inducement to the execution and delivery of this Agreement, and shall be
applicable despite any dispute between the parties hereto or any others, or any
default by Owner under the Contract Documents or otherwise.
C. Design/Builder shall include in every subcontract relating to the
Work (including without limitation the electrical, mechanical, foundation and
excavation, and elevator subcontracts) to which it is a party and in each and
every lower tier subcontract, provisions (i) that the person or entity doing
work, performing labor or furnishing materials pursuant to each subcontract
agrees to subordinate any mechanics' or materialmen's lien or any other claim
against any part of the Work or the property on which the Work is performed for
or on account of any work done, labor performed or materials furnished under the
Contract Documents or such subcontract to the liens securing payment of sums now
or hereafter borrowed by Owner or applicable rights of any industrial or
development district or other governmental or quasi-governmental entity in
connection with construction of the Improvements, (ii) that the required
subordinations are made in consideration of and as an inducement to the
execution and delivery of this Agreement and the subcontract in which it
appears, and shall be applicable despite any dispute between or among Owner,
Design/Builder or any subcontractor or any default by Owner, Design/Builder or
any subcontractor under the Contract Documents or any other subcontract or
agreement and (iii) that Owner and Owner's lenders are express third party
beneficiaries who have supplied consideration for such subordinations.
26
Section XV. Bonds
-----
A. Design/Builder shall obtain and maintain during the performance of
the Work a performance bond and a labor and material payment bond, with obligee
rider, each in form and substance satisfactory to Owner. The initial penal sum
for each such bond shall be in an amount equal to the Contract Sum and
thereafter the penal sums will be adjusted to reflect any adjustments to said
Contract Sum. It is understood by Design/Builder and its surety that the penal
sum will automatically be deemed equal to the Contract Sum as adjusted from time
to time. To evidence the above automatic adjustments of the penal sums,
Design/Builder shall provide to Owner and Owner's lender on a quarterly basis
(or at such other times as Owner or Owner's lender may request) a written
instrument executed by the surety evidencing such adjustments of the penal sums
for each such bond. Such bonds shall be issued by independent corporate surety
of recognized financial standing satisfactory to Owner. The cost of the
premiums for such bonds is included in the Estimated Design/Builder's Cost and
the Guaranteed Maximum Cost. All refunds, credits or dividends, if any, from any
such premiums shall be calculated at Final Payment and shall accrue to Owner.
B. Any performance bond or labor and material payment bond furnished
by Design/Builder shall not include, and specifically excludes, the work
included in the Design Contract Scope of Work.
Section XVI. Independent Contractor
----------------------
In performing its obligations hereunder, Design/Builder shall be
deemed an independent contractor and not an agent or employee of Owner.
Design/Builder shall have exclusive authority to manage, direct, and control the
Work. Owner is interested in only the results obtained and not in the methods
used in achieving the results.
Section XVII. Inspection and Audit
--------------------
A. Design/Builder represents that it has inspected the location of
the Work and has satisfied itself as to the condition thereof and that the
Contract Sum is just and reasonable compensation for all the Work, including all
foreseen or foreseeable risks, hazards, and difficulties in connection
therewith.
B. Owner at all times shall have access to the Work for inspection
thereof, but shall not be obligated to conduct any such inspection.
Design/Builder shall provide proper and safe facilities for such access and
inspection. If any of the Work is required to be inspected or approved by any
public authority, Design/Builder shall cause such inspection or approval to
occur.
C. Design/Builder understands and acknowledges that Owner's lenders
require periodic inspection and certification by an independent architect
designated and engaged by lender and by other authorities and agencies.
Design/Builder agrees to make the site available at all reasonable times for
such inspections and shall coordinate with Owner's Representative (as
hereinafter defined) as requested.
27
D. No inspection performed or failed to be performed by Owner
hereunder shall be a waiver of any of Design/Builder's obligations hereunder or
be construed as an approval or acceptance of the Work of any part thereof.
E. Design/Builder shall check all materials and labor entering into
the Work and shall keep full and detailed accounts thereof.
F. In addition to Owner's other rights with regards to subcontracts
entered into by Design/Builder, Owner shall be permitted to review and audit
such subcontracts and the scope of work set forth therein. Owner shall have
access to the Work and the right to audit all Design/Builder's books, records,
correspondence, instructions, drawings, receipts, vouchers and memoranda
relating to the Work, and Design/Builder shall preserve all such records for a
period of four (4) years after the Final Payment hereunder.
G. It is understood and agreed that this Agreement, the General
Conditions of the Contract includes as Exhibit I hereto and the other Contract
---------
Documents provide for Owner's review and/or approval of various aspects of the
design, construction and performance of the Work. Anything to the contrary
expressed or implied by the Contract Documents or otherwise notwithstanding, an
such reviews and approvals shall be solely for the benefit of Owner and may be
exercised or omitted in Owner's sole discretion. Owner shall have no obligation
to conduct any review or inspection or to express or submit any approval, and
neither the doing so nor the failure to do so shall create or impose any duty,
obligation or liability on Owner. It is further expressly understood and agreed
that no review, inspection or approval shall create any rights in any
architects, subcontractors or suppliers engaged by Design/Builder or in any
other third parties.
Section XVIII. Survey; Record Drawings
-----------------------
A. Concurrent with the Final Request for Payment, Design/Builder
shall furnish as-built surveys showing the exact locations of all structures and
water, sewer, gas, telephone, cable, cable TV and electric lines and mains and
of all easements for such utilities then existing. Such surveys shall be
prepared by a licensed surveyor who shall certify that the Improvements are
installed and erected entirely upon the Exhibit A property and within the
---------
building restriction lines, if any, and do not overhang or encroach upon any
easement or right-of-way of others.
B. During the progress of the Work, Design/Builder shall xxxx record
drawings to show the actual installation where the installation varies
substantially from the Work as originally shown, giving particular attention to
information on concealed elements that would be difficult to measure and record
at a later date. Design/Builder shall submit the marked-up record drawings prior
to Completion, preparing such documents so as to provide Owner with an as-built
set of documents depicting the Project as constructed. Where changes and
information are indicated on shop drawings, Design/Builder shall provided sepias
or vellums of such drawings as supplements to the record drawings. The drawings
shall be reviewed by Owner and returned to Design/Builder with comments.
Design/Builder shall make corrections necessary and submit the originals of the
final drawings to Owner.
28
Section IX. Termination
-----------
A. If Design/Builder fails to commence the design or construction of
the Work in accordance with the provisions of this Agreement or diligently
prosecute the design or construction of Work to completion thereof in a
diligent, efficient, timely, workmanlike, skillful and careful manner and in
strict accordance with the provisions of the Contract Documents (including the
Scheduled Completion Date), to use an adequate amount or quality of personnel or
equipment to complete the Work without undue delay, to perform any of its
obligations under the Contract Documents, or to make prompt payments to its
subcontractors, materialmen or laborers, then Owner shall have the right, if
Design/Builder shall not cure any such default after seven (7) days written
notice thereof (or, if such default is of such a nature as to be incapable of
cure within such period, shall not commence action to cure said default within
such period and thereafter diligently and continuously pursue such action to
complete such cure promptly, and in all events within thirty (30) days of such
notice), to (i) terminate this Agreement, (ii) take possession of and use all or
any part of Design/Builder's materials, equipment, supplies, and other property
of every kind used by Design/Builder in the performance of the Work and to use
such property in the completion of the Work, or (iii) complete the design and
construction of the Project in any manner it deems desirable, including engaging
the services of other parties therefor. Any such act by Owner shall not be
deemed a waiver of any other right or remedy of Owner. If after exercising any
such remedy the cost to Owner of the performance of the balance of the Work is
in excess of the unpaid portion of the Contract Sum, Design/Builder shall be
liable for and reimburse Owner such excess.
B. If Owner fails to perform any of its obligations hereunder,
Design/Builder shall have the right to give Owner written notice thereof,
stating the nature of the default. If Owner does not cure such default within
thirty (30) days after receipt of such notice, Design/Builder shall have the
right to terminate this Agreement by giving Owner written notice thereof at any
time thereafter while such default remains uncured and payment shall be made to
Design/Builder for all Work executed and for any proven loss sustained upon any
materials, equipment, tools, construction equipment and machinery, and
reasonable demobilization costs and fee earned to date of termination.
C. Owner may, if Design/Builder neglects to prosecute the Work
properly or to perform any provision of the Contract Documents, or otherwise
does, or omits to do, anything whereby safety or proper construction may be
endangered or whereby damage or injury may result to person or property, after
three (3) days written notice to Design/Builder, without prejudice to any other
remedy Owner may have, make good all work, material, omissions or deficiencies,
and may deduct the cost therefor from the Contract Sum, but no action taken by
Owner hereunder shall affect any of the other rights or remedies of Owner
granted by this Agreement or by law or relieve Design/Builder from any
consequences or liabilities arising from such acts or omissions.
D. It is recognized that if Design/Builder is adjudged a bankrupt, or
makes a general assignment for the benefit of creditors, or if a receiver is
appointed for the benefit of its creditors, or if a receiver is appointed on
account of its insolvency, such could impair or frustrate Design/Builder's
performance of this Agreement. Accordingly, it is agreed that upon the
29
occurrence of any such event, Owner shall be entitled to request of
Design/Builder or its successor in interest adequate assurance of future
performance in accordance with the terms and conditions hereof. Failure to
comply with such request within ten (10) days of delivery of the request shall
entitle Owner to terminate this Agreement and to the accompanying rights set
forth above in Section XIX(A). In all events pending receipt of adequate
assurance of performance and actual performance in accordance therewith, Owner
shall be entitled to proceed with the Work with its own forces or with other
contractors on a time and material or other appropriate basis the cost of which
will be backcharged against the Contract Sum hereof.
E. Owner hereby reserves the right to terminate this Agreement
without regard to fault or breach upon written notice to Design/Builder,
effective immediately unless otherwise provided in said notice. In the event of
such termination, Owner shall pay as the sole amount due to Design/Builder in
connection with the Project (i) costs reimbursable hereunder for Work performed
to date plus Design/Builder's Fee on such costs (except retainage sums shall not
be paid prior to thirty (30) days following the date of termination); and (ii)
reasonable cost of termination. Such sums will be due and payable on the same
conditions as set forth in Section IX hereof, for Final Payment to the extent
applicable. Upon receipt of such payment, the parties hereto shall have no
further obligations to each other except for Design/Builder's obligations to
perform corrective and/or warranty work and to indemnify Owner as provided in
the Contract Documents for only that work performed prior to the date of
termination. No fee or other compensation shall be due or payable for
unperformed Work. Design/Builder agrees that each subcontract and purchase
order will reserve for Design/Builder the same right of termination provided by
this Section XIX(E), and Design/Builder further agrees to require that
comparable provisions be included in all lower tier subcontracts and purchase
orders.
F. It is recognized and acknowledged that Owner (of affiliated or
related entities of Owner) by separate agreement(s) has engaged (and may engage)
Contractor as a contractor with respect to one or more other construction
projects. Accordingly it is hereby agreed that any breach or default by
Contractor under this Agreement, or under any other agreement between Owner (or
affiliated or related entitled of Owner) and Contractor shall also be deemed a
breach or default under any and all agreement(s) between the parties. It is
further agreed that to the extent such breach or default entitles Owner (or
affiliated or related entitles of Owner) to exercise any particular right or
remedy with respect to one agreement, Owner (or affiliated or related entities
of Owner) shall also be entitled to exercise said right or remedy with respect
to any other agreement(s).
G. In the event that termination of Design/Builder or its successor
in interest pursuant to Section XIX(A) or (D) was wrongful, such termination
will be deemed converted to a termination for convenience pursuant to Section
XIX(E) and Design/Builder's remedy for wrongful termination in such event shall
be limited to the recovery of the payments permitted for termination for
convenience as set forth in Section XIX(E).
H. The rights and remedies of Owner and Design/Builder under this
Section XIX shall be non-exclusive, and shall be in addition to all the other
remedies available to such parties at law or in equity, subject, however, in the
case of Design/Builder, to the limitations contained in Sections XIX(E) and (F)
and other provisions of this Agreement.
30
Section XX. Notices
-------
All notices to be given hereunder shall be in writing, and all
payments to be made hereunder shall be by check, and may be given, served or
made by telecopy (with hard copy to follow) or by depositing the same in the
United States mail addressed to the authorized Representative (as specified in
Section XXX hereof) of the party to be notified, postage prepaid and registered
or certified with return receipt requested or by delivering the same in person
to the said authorized Representative of such party. Notice deposited in the
mail in accordance with the provisions hereof shall be effective unless
otherwise stated in such notice or in this Agreement from and after the fourth
day next following the date postmarked on the envelope containing such notice,
or when actually received, whichever is earlier. Notice given in any other
manner shall be effective only if and when received by the party to be notified.
All notices to be given to the parties hereto shall be sent to and made at the
addresses heretofore set forth. The parties hereto shall have the right to
change their respective addresses on fifteen (15) days written notice specifying
the new address.
The parties' respective addresses for notice and payment purposes are:
If to Owner: Xxxxx Operating Partnership, L.P.
c/x Xxxxx Capital, Inc.
Attn.: Senior Vice President Asset Management
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxxx LLP
Attn.: Xx. Xxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000 and (000) 000-0000
with a copy to: Champion Partners, Ltd.
Attn.: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to Design/Builder: Xxxx. X. Xxxxx, Inc.
Attn.: Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Telecopy notices shall not be effective unless confirmation of receipt is
provided. The parties agree to provide immediate confirmation of receipt of
telecopy communication.
31
Section XXI. Title of Work
-------------
Immediately upon the performance of any part of the Work, as between
Design/Builder and Owner, title thereto shall vest in Owner; provided, however,
the vesting of such title shall not impose any obligations on Owner or relieve
Design/Builder of any of its obligations hereunder.
Section XXII. Waiver
------
No consent or waiver, express or implied, by either party to this
Agreement to or of any breach or default by the other in the performance of any
obligations hereunder shall be deemed or construed to be a consent or waiver to
or of any other breach or default by such party hereunder. Failure on the part
of any party hereto to complain of any act or failure to act of the other party
or to declare the other party in default hereunder, irrespective of how long
such failure continues, shall not constitute a waiver of the rights of such
party hereunder. Inspection by, payment by, or tentative approval or acceptance
by Owner or the failure of Owner to perform any inspection hereunder, shall not
constitute a final acceptance of the Work or any part thereof and shall not
release Design/Builder of any of its obligations hereunder.
Section XXIII. Conflicts
---------
In case of conflicts between the provisions of this Agreement, any
ancillary documents executed contemporaneously herewith or prior hereto, or any
other of the Contract Documents, the provisions of this Agreement (including all
exhibits) shall prevail.
Section XXIV. Work in Progress
----------------
A. Design/Builder shall protect and prevent damage to all unfinished
phases of Work, including but not limited to the protection thereof from damage
by the elements, theft, or vandalism.
B. Design/Builder shall use reasonable efforts to complete and make
available portions of the Project for occupancy by Owner or its tenants prior to
the Scheduled Completion Date provided such occupancy does not delay the
Project. Any such early occupancy shall be pursuant to an appropriate agreement
setting forth (i) responsibility for utility cost; (ii) commencement of warranty
obligations for the portion of the Improvements to be occupied; (iii) insurance
to be maintained by Owner or its tenants and their respective separate
contractors; and (iv) appropriate modification of Design/Builder's obligation to
indemnify Owner for Owner's partial negligence as such indemnity relates to the
area(s) to be occupied. As portions of the Project are completed and occupied,
Design/Builder shall ensure that continuing construction activity will not
unreasonably interfere with the use or occupancy of the completed portions
thereof. Design/Builder recognizes that Owner and/or its tenant for the Project
will engage other contractors who will be performing other work at and within
the Project, and Design/Builder accepts such ongoing activity as a site
condition relative to its Work, and its schedule, costs and fee include time and
monies associated with performing work in such manner. Design/Builder will
permit other contractors who are performing tenant work or other work in the
Project access
32
to the Project and coordinate the Work with the work of such separate
contractors so that the work by such other contractors and the Work under this
Agreement do not interfere with each other.
Section XXV. Compliance with Laws
--------------------
Any provisions hereof the contrary notwithstanding, Design/Builder
shall observe and abide by and perform all of its obligations hereunder in
accordance with all applicable laws, rules and regulations of all governmental
authorities having jurisdiction, including the Federal Occupational, Safety and
Health Act, the Americans with Disabilities Act, Texas Accessibility Standards,
and environmental statutes. Design/Builder shall not transport, store or
introduce to the Project, nor specifically for use in its design or
construction, any hazardous substances, as that term is used in the
promulgations of the Environmental Protection Agency or The Texas Natural
Resources Conservation Commission.
Section XXVI. Personnel
---------
All personnel used by Design/Builder in the performance of the Work
shall be qualified by training and experience to perform their assigned tasks.
At the request of Owner, Design/Builder shall not use in the performance of the
Work any personnel deemed by Owner to be incompetent, careless, unqualified to
perform the work assigned to him, or otherwise unsatisfactory to Owner. It is
specifically agreed that Design/Builder's Project Manager shall be Xxxxx Xxxxxx,
and its Superintendent shall be Xx Xxxxxx. The Project Manager will devote such
time to Work as necessary to properly perform his respective duties to assure
that the Work will be diligently prosecuted in accordance with the Contract
Documents and the Project Manager win continue such role unless prior release is
approved or directed by Owner's Representative. The Superintendents and other
approved personnel other than the Project Manager will be engaged in the
prosecution of the Work continuously on an exclusive, full time basis until
their role is completed, unless prior release is approved or directed by Owner's
Representative or unless such personnel shall cease to be employed by
Design/Builder. Replacement of or addition to such key personnel shall
similarly be subject to prior approval by Owner. Design/Builder further agrees
not to remove from the Work any employee that Owner considers to be necessary
for the proper performance of the Work without the prior approval of Owner.
Section XXVII. Design/Builder's Warranties
---------------------------
Design/Builder represents and warrants that: (i) it is financially
solvent, able to pay its debts as they mature, and possessed of sufficient
working capital to complete this Agreement; (ii) it is able to furnish the
plant, tools, materials, supplies, equipment and labor, and is experienced in
and competent to perform the Work contemplated by this Agreement; (iii) it is
qualified to do the work herein and is authorized to do business in the State
where the Project is located; and (iv) it holds a license, permit or other
special license to perform the services included in this Agreement, as required
by law, or employs or works under the general supervision of the holder of such
license, permit or special license.
33
Section XXVIII. Defects
-------
A. Design/Builder shall (i) re-execute any parts of the Work that
fail to conform with the requirements of this Agreement that appear in the
progress of the Work, (ii) remedy any defects in the Work due to faulty
materials or workmanship which appear within a period of two (2) years of
Substantial Completion of the Project, or within such longer period of time as
may be set forth in the Drawings and Specifications or other Contract Documents;
and (iii) replace, repair or restore any parts of the Project or furniture,
fixtures, equipment or other items placed therein (whether by Owner or any other
party) that are injured or damaged by any such parts of the Work that do not
conform to the requirements of this Agreement or defects in the Work. The
provisions of this Section XXVIII apply to work done by subcontractors of
Design/Builder as well as work done directly by employees of Design/Builder, but
shall not apply to corrective work attributable solely to the acts or omissions
of any separate contractor of Owner. The cost to Design/Builder of performing
any of its obligations under this Section XXVIII shall not be included in the
Contact Sum and Design/Builder shall bear all extra costs such as additional
architectural, engineering and design services related to such corrective work.
B. All corrective work shall be at no cost to Owner. If, however,
Owner and Design/Builder deem it inexpedient to require the correction of Work
damaged or not done in accordance with the Contract Documents, an equitable
deduction from the Contract Sum shall be made by agreement between
Design/Builder and Owner. Until such settlement, Owner may withhold such sums
as Owner deems just and reasonable from monies, if any, due Design/Builder.
C. Design/Builder's express warranty herein shall be in addition to,
and not in lieu of any other remedies Owner may have under this Agreement, at
law, or in equity for defective Work.
D. After the date of Substantial Completion, Design/Builder shall
grant to Owner or such other or additional parties as Owner may specify, a
nonexclusive assignment, of all warranties and guaranties in connection with the
Project, whether given by Design/Builder or any other contractors,
manufacturers, suppliers and vendors of Design/Builder with respect to the
Improvements and any materials used in the construction and installation
thereof. Design/Builder shall obtain with respect to the roof of the Project in
connection with initial construction: (a) a warranty for a period of two years
from the date of Substantial Completion on all labor and materials, and (b) a
warranty for a period of 20 years from the date of Substantial Completion on the
materials.
Section XXIX. Confidentiality and Media Communications
----------------------------------------
A. Owner is furnishing Design/Builder with certain information in
connection with Owner, Developer and the Project. As a condition to the receipt
of such information, Design/Builder agrees to treat confidentially any
information concerning the Developer, Owner or the Project which is furnished to
Design/Builder or of which Design/Builder becomes aware, whether furnished or
discovered before or after the date of this Agreement, together with analyses,
compilations, studies or other documents or records prepared by Design/Builder
or its
34
directors, officers, employees, advisors or representatives, all such
information being referred to herein as the "Material".
B. Design/Builder hereby agrees that the Material will be used solely
for the purpose of performance under this Agreement and that the Material win be
kept confidential by Design/Builder and its representatives; provided, however,
that any of the Material may be disclosed to Design/Builder's representatives
who need to know the information contained therein for the purpose described
above, it being understood that (i) such representatives shall be informed by
Design/Builder of the confidential nature of such information and Design/Builder
shall cause such representatives to treat such information confidentially, (ii)
Design/Builder shall maintain a list of those persons to whom such information
has been disclosed, which list shall be presented to Developer upon request, and
(iii) in a any event Design/Builder shall be responsible for any breach of this
Agreement by any of its representatives.
C. Without the prior written consent of Owner, Design/Builder will
not, and will direct Design/Builder's representatives to not, disclose the
Material or to disclose to any person the fact that the Material has been made
available to Design/Builder or that Design/Builder has inspected any portion of
the Material. Without limitation on the foregoing, Design/Builder and its
representatives will not discuss the Material, including any prospective site
locations for the Project with members of the press, brokers or any other
persons.
D. It is further understood and agreed that money damages would not
be a sufficient remedy for any breach of this provision of the Agreement and
that Owner shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such remedy for breach. Such remedy shall
not be deemed to be exclusive remedy for breach of this Agreement but shall be
in addition to all other remedies available at law or equity to Owner.
E. The provisions relating to confidentiality in this Section of the
Agreement shall survive any termination of or completion of performance under
this Agreement.
Section XXX. Representatives
---------------
A. Developer shall be Owner's representative with respect to the
Project, authorized to act on Owner's behalf and with authority to execute any
and all instruments requiring Owner's approval, consent, action or instruction.
Design/Builder shall communicate with Owner through Developer, and any and all
notices and/or submittals required of Design/Builder under this Agreement or any
other Contract Document, including without limitation Requests for Payment,
Change Orders, requests for extension of time and/or claims for extras, shall be
submitted directly to Developer by Design/Builder.
B. The Developer's Representative, with full authority to execute any
and all instruments requiring Developer's approval and to act on behalf of
Developer with respect to all matters arising out of this Agreement, is hereby
designated to be Xxxxxx Xxxxxx unless and until Developer notifies
Design/Builder in writing that some other person shall be Developer's
Representative.
35
C. Design/Builder's Representative with full authority to execute any
and all instruments requiring Design/Builder's signature and to act on behalf of
Design/Builder with respect to all matters arising out of this Agreement is
designated to be either of Xxxxx Xxxxxx or Xxxxx Xxxxxx.
D. Developer, Owner and Design/Builder each will act in a reasonable
manner in the exercise of the rights and authorities granted to the respective
parties by this Agreement and the other Contract Document.
Section XXXI. Assignment
----------
A. Except as otherwise provided in this Section XXXI, neither party
to this Agreement shall assign this Agreement or sublet it as a whole without
the written consent of the other; nor shall Design/Builder assign any monies due
or to become due to it hereunder, without the previous written consent of Owner.
Owner may, however, assign this Agreement to any related party or entity
provided that such related party or entity has also taken title to the Project.
Subject to the foregoing, this Agreement shall inure to the benefit of and be
binding on the parties hereto and their respective successors and assigns.
B. Design/Builder hereby assigns to Owner (and its assigns) all its
interest in any subcontracts and purchase orders now existing or hereinafter
entered into by Design/Builder for performance of any part of the design and/or
construction of the Work which assignment win be effective upon acceptance by
Owner in writing and only as to those subcontracts and purchase orders which
Owner designates in said writing. Owner may accept said assignment at any time
during the course of construction prior to final completion. All subcontracts
and purchase orders shall provide that they are freely assignable to Owner and
assigns. It is further agreed and understood that such assignment is part of
the consideration to Owner for entering into this Agreement and may not be
withdrawn prior to final completion.
Section XXXII. Lenders' Right to Complete
--------------------------
In the event of a default by Owner under its loan agreement, the
unperformed part of this Agreement will be performed by Design/Builder for the
benefit and at the expense of Owner's lender, should the lender so elect,
provided that there is no interruption in the prosecution of the Work and all
obligations of Owner to Design/Builder are paid or performed including payment
of progress payments pending at the time of said default. If there are any
delays or interruptions as a result of the lender assuming the obligations of
Owner for any part of this Agreement, any additional cost involved and any
changes in completion or occupancy dates necessitated by such delays or
interruptions shall be subject to negotiation between the parties. As further
consideration of this Agreement Design/Builder agrees to execute immediately
upon request by Owner the Subordination Agreement attached hereto as Exhibit G.
---------
Section XXXIII. Limitation of Liability
-----------------------
A. Notwithstanding anything herein to the contrary, in no event shall
Design/Builder have any claim against any partners of Owner, or any partners of
the partners of Owner, or the officers, directors, employees or shareholders of
any corporate partner of Owner or any corporate
36
partner of a partner of Owner, Design/Builder hereby acknowledging that the
obligations of Owner are the responsibility solely of the entity so defined and
claims, if any, against Owner shall be limited to the assets of Owner,
Design/Builder unconditionally waiving any other claims. The foregoing agreement
is a part of the consideration for Owner entering into this Agreement with
Contractor.
B. Design/Builder understands and acknowledges that Developer has
certain obligations to Owner in connection with the development of the Project,
and that Developer is and will seek advances, funding and reimbursement from
Owner of amounts owed to Developer, and will submit Design/Builder's Requests
for Payment hereunder to Owner for Owner's funding. Design/Builder will, in
addition to any other requirements of the Contract Documents, cooperate and
comply with Developer's and Owner's requirements and requests regarding
submittals in order to facilitate payments from Owner, and acknowledges that
delays, incompleteness or irregularities in or lack of substantiation for
Design/Builder's Requests for Payment and other submittals may cause delays in
or the need for resubmittal of Design/Builder's Requests for Payment and other
submittals.
C. Nothing contained in this Agreement or elsewhere shall create or
imply any agreement between Design/Builder and Developer or any obligation of
Developer to Design/Builder. Design/Builder acknowledges that its agreement is
with Owner only and that neither Design/Builder nor any Subcontractor or Sub-
subcontractor shall have any right to payment from or to assert any claim
against Developer or any partner, officer, director, employee or shareholder
thereof.
Section XXXIV. Nondiscrimination
-----------------
Design/Builder agrees that in the performance of its work under this
Agreement it will not knowingly violate any applicable laws or regulations
prohibiting discrimination in employment.
Section XXXV. Construction of Terms
---------------------
Unless the context clearly intends to the contrary, words singular or
plural in number shall be deemed to include the other and pronouns having a
masculine or feminine gender shall be deemed to include the other. The term
"person" shall be deemed to include an individual, corporation, partnership,
trust, unincorporated organization, government and governmental agency or
subdivision, as the context shall require.
Section XXXVI. Captions
--------
The captions used for the Sections in this Agreement are inserted only
as a matter of convenience and for reference and in no way define, limit or
describe the scope of the intent of this Agreement or any Section hereof.
37
Section XXXVII. Governing Law
-------------
This Agreement has been prepared, negotiated and executed in the State
of Texas, and shall be governed in all aspects by the laws of the State of
Texas.
Section XXXVIII. Entire Agreement
----------------
The Contract Documents constitute the entire agreement between the
parties hereto with respect to the matters covered thereby. All prior
negotiations, representations and agreements with respect thereto not
incorporated in such Contract Documents are hereby canceled. This Agreement can
be modified or amended only by a document duly executed on behalf of the parties
hereto.
38
IN WITNESS WHEREOF, this Agreement is hereby executed as of the date
first above set forth.
XXXXX OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: Xxxxx Real Estate Investment Trust, Inc.
a Maryland corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------
Title: Executive Vice President
------------------------
XXXX. X. XXXXX, INC.
a Texas corporation
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
------------
Title: VP. General Manager Dallas
--------------------------
39
EXHIBIT A
LEGAL DESCRIPTION
BEING a tract of land situated in the XXXXXXXX XXXXX SURVEY, ABSTRACT NO. 56,
DALLAS County, Texas, and being all of Xxx 0, Xxxxx X xx XXX XXXXXXXX, 12TH
INSTALLMENT, an Addition to the City of Irving, Texas, recorded in Volume 84246,
Page 317, Deed Records of DALLAS County, Texas said tract being more
particularly described by metes and bounds as follows:
BEGINNING at a 1/2 inch iron rod with "Halff Assoc., Inc." cap (hereafter
referred to as "with cap") found for corner at the North end of a right of way
corner clip at the intersection of the Northeast right of way line of Esters
Boulevard (80 foot right of way) and the Southeast right of way line of Freeport
Parkway (100 foot right of way);
THENCE North 54 degrees 19 minutes 10 seconds East, with said Southeast right of
way line of Freeport Parkway, a distance of 57.16 feet to a 1/2 inch iron rod
with cap found at the beginning of a curve to the left having a radius of 880.59
feet;
THENCE in a Northerly direction, continuing with said Southeast right of way
line and along said curve to the left, through a central angle of 44 degrees 00
minutes 00 seconds, an arc distance of 676.24 feet to a 1/2 inch iron with cap
found for corner;
THENCE North 10 degrees 19 minutes 10 seconds East, continuing along said right
of way line, a distance of 87.55 feet to a 1/2 inch iron rod with cap found for
corner, said point being the Southwest end of a right of way corner clip at the
intersection of said Southeast right of way line of Freeport Parkway and the
Southwest right of way line of Regent Boulevard (100 foot right of way);
THENCE North 55 degrees 19 minutes 10 seconds East, along said right of way
corner clip, a distance of 25.00 feet to a 1/2 inch iron rod with cap found for
corner on said Southwest line of Regent Boulevard;
THENCE South 79 degrees 40 minutes 50 seconds East, along said Southwest right
of way, a distance of 402.27 feet to a 1/2 inch iron rod with cap found at the
beginning of a curve to the right having a radius of 549.97 feet;
THENCE in a Southeasterly direction, continuing with said Southwest right of way
line, along said curve to the right, through a central angle of 43 degrees 56
minutes 10 seconds, an arc distance of 421.73 feet to a 1/2 inch iron rod with
cap found at the end of said curve;
THENCE, South 35 degrees 44 minutes 40 seconds East, continuing with said
Southwest right of way line, a distance of 88.38 feet to a 1/2 inch iron rod
with cap found for corner, said point being the Northern most corner of Xxx 0,
Xxxxx X xx xxxx 00xx Installment;
THENCE South 54 degrees 19 minutes 10 seconds West, departing said Southwest
right of way line and along the Northwesterly line of said Lot 6, passing at a
distance of 820.00 feet the Western most corner of Lot 6, also being the
Northern most corner of Xxx 0X, Xxxxx X XXX Xxxxxxxx, 12th Installment Revision,
an Addition to the City of Irving, Texas, recorded in Volume 94036, Page 0000,
Xxxx Xxxxxxx, XXXXXX Xxxxxx, Xxxxx, and continuing along the Northwesterly line
of said Lot 9B, in all a distance of 1208.41 feet to an "X" cut in concrete set
on said Northeast right of way line of Esters Boulevard;
THENCE North 35 degrees 40 minutes 50 seconds West, with said Northeast right of
way line, a distance of 433.97 feet to a 1/2 inch iron rod with cap found at the
South end of the aforementioned corner clip at the intersection of Esters
Boulevard and Freeport Parkway;
THENCE North 09 degrees 19 minutes 10 seconds East, with said right of way
corner clip, a distance of 25.00 feet to the POINT OF BEGINNING and CONTAINING
647,857 square feet or 14.873 acres of land, more or less.
EXHIBIT B
CONTRACT DOCUMENTS
(1) Nissan Motor Acceptance Corporation Conceptual Structural Foundation &
Framing Plan, dated February 28, 2001, 4 sheets (S1.01, S2.01, S2.02,
S2.03) prepared by Xxxxxxxxx Xxxxx Xxxxx, Inc.
(2) Nissan Motor Acceptance Corporation Specification/Narratives, dated August
30, 2000, prepared by HKS Architects and Xxxxxxxxx Xxxxx Drake, The SWA
Group, Xxxx Consulting Engineering and The Staubach Company, as follows:
(i) Interior Space Requirements Program, 16 pages
(ii) Architectural/Interior Design Narrative (Shell), 5 pages
(iii) Architectural/Interior Design Narrative (Interiors), 8 pages,
Revised November 27, 2000
(iv) Landscape Design Narrative, 1 page
(v) MEP Shell Building Outline Specifications, 32 pages
(vi) MEP Interior Finishout Narrative, 4 pages
(3) Developer Scope Summary Form (no date), 4 pages
(4) Site Plan, as prepared by HKS, dated February 21, 2001 (superceded by
4/17/01 set).
(5) Outline Specification: Roof, Glazing & Elevators, dated February 21, 2001.
(6) Finish System for Preliminary Design, prepared by HKS, dated February 27,
2001.
(7) Yasuda Fire & Marine Insurance Company letter of document review dated
August 30, 2000.
(8) HKS Architects' memo of Construction Type Options (for fire rating) not
dated.
(9) HKS Architects' Revised Plans; 6 sheets, dated April 17, 2001.
(10) Xxxx Consulting Engineers' memo specifications of XxXxxx equipment, dated
April 24,
(11) Geotechnical Investigation Report, prepared by HBC dated August, 1998,
Report #00-0000-00.
(12) Contract between Xxxxx Operating Partnership, L.P. and Xxxx. X. Xxxxx, Inc.
and Exhibits A through I.
EXHIBIT C
------------------------------------------------------------------------------------------------------------------------------------
XXXXX(TM) CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YY)
09/18/01
------------------------------------------------------------------------------------------------------------------------------------
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF
INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE
XXXXXX AGENCY, INC. CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT
P.O. BOX 2285 AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY
THE POLICIES BELOW.
-----------------------------------------------
COMPANIES AFFORDING COVERAGE
-----------------------------------------------
XXXXX XXXXX, XX 00000 COMPANY
(000) 000-0000 A ST XXXX GUARDIAN INSURANCE CO.
------------------------------------------------------------------------------------------------------------------------------------
INSURED COMPANY
XXXX. X. XXXXX, INC. B NATL UNION FIRE INS CO OF PITT
-----------------------------------------------
000 XXXXXX XXXXXX XXXXXXX
XXXX XXXXX, XX 00000 C THE TEXAS FUND (COMPGROUP ACG)
-----------------------------------------------
COMPANY
D
------------------------------------------------------------------------------------------------------------------------------------
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
------------------------------------------------------------------------------------------------------------------------------------
CO POLICY EFFECTIVE POLICY EXPIRATION
LTR TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY) DATE (MM/DD/YY) LIMITS
------------------------------------------------------------------------------------------------------------------------------------
GENERAL LIABILITY GENERAL AGGREGATE $ 2,000,000
-------------------------------------
A [X] COMMERCIAL GENERAL LIABILITY KK05100567 10/01/00 10/01/01 PRODUCTS.COMP/OP AGG $ 2,000,000
-------------------------------------
[_][_] CLAIMS MADE: [X] OCCUR PERSONAL & ADV INJURY $ 1,000,000
-------------------------------------
[_] OWNERS & CONTRACTORS PROT EACH OCCURRENCE $ 1,000,000
-------------------------------------
A [X] Contractual Liability FIRE DAMAGE (Any one fire) $ 100,000
--------------------- -------------------------------------
MED EXP (Any one person) $ 10,000
------------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
A [X] ANY AUTO KK09100967-01 10/01/00 10/01/01 COMBINED SINGLE UNIT $ 1,000,000
-------------------------------------
[_] ALL OWNED AUTOS BODILY INJURY $
(Per person)
-------------------------------------
[_] SCHEDULED AUTOS
A [X] HIRED AUTOS BODILY INJURY $
(Per accident)
-------------------------------------
A [X] NON-OWNED AUTOS
[_] PROPERTY DAMAGE $
-------------------------
[_]
------------------------------------------------------------------------------------------------------------------------------------
GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $
-------------------------------------
[_] ANY AUTO OTHER THAN AUTO ONLY:
-------------------------------------
EACH ACCIDENT $
[_] -------------------------------------
-------------------------
[_] AGGREGATE $
------------------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH OCCURRENCE $50,000,000
-------------------------------------
B [X] UMBRELLA FORM RE739258 10/01/00 10/01/01 AGGREGATE $50,000,000
-------------------------------------
[_] OTHER THAN UMBRELLA FORM $
------------------------------------------------------------------------------------------------------------------------------------
WORKERS COMPENSATION AND WC STATU- OTH
EMPLOYERS' LIABILITY TORY LIMITS ER
-------------------------------------
EL EACH ACCIDENT $ 500,000
-------------------------------------
C THE PROPRETOR/ [X] INCL TSP0001096801 04/01/01 04/01/02 EL DISEASE-POLICY LIMIT $ 500,00
-------------------------------------
PARTNERS/EXECUTIVE
OFFICERS ARE: [_] EXCL EL DISEASE-EA EMPLOYEE $ 500,000
------------------------------------------------------------------------------------------------------------------------------------
OTHER
------------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
CERTIFICATE HOLDER & XXXXX OPERATING PARTNERSHIP, L.P. ARE ADDITIONAL INSURED
ON ALL POLICIES EXCEPT WORKERS COMPENSATION. WAIVER OF SUBROGATION IN FAVOR OF
CERTIFICATE HOLDER & XXXXX OPERATING PARTNERSHIP, L.P.
------------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
------------------------------------------------------------------------------------------------------------------------------------
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF. THE ISSUING COMPANY WILL ENDEAVOR
CHAMPION PARTNERS, LTD. TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED
00000 XXXXXX XXXX TO THE LEFT. BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO
SUITE 100 OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS
XXXXXXX, XX 00000 AGENTS OR REPRESENTATIVES.
------------------------------------------------------------------
AUTHORIZED REPRESENTATIVE
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
XXXXX 25-3(1795) XXXXX CORPORATION 1988
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT D
ALLOWANCES
The following allowances, which total $5,445,243 in the aggregate, are to be
included within the scope of the Project (i.e. the Improvements) as part of the
work to be performed by the General Contractor:
(a) $350,000 for dual feed electrical service.
(b) $25,000 for demounting and relocating two existing generators. (This does
not include the provisions for a new third generator to be included in the
Project scope)
(c) $1,330,000 for date/voice cabling.
(d) $1,350,000 for kitchen/servery/dining equipment and finish out.
(e) $132,000 for the finish-out of the Document Preparation and Computer
Setup/Storage Room.
(f) $35,000 for blackout draperies/shades for conference rooms only.
(g) $60,000 for elevator finish upgrade above standard finish provided by
elevator company.
(h) $30,000 for the design, construction and installation of the lobby area
reception/security desk.
(i) $15,000 for the second floor atrium balcony railing above the first floor
main lobby entrance.
(j) Material allowances for furnishing and installing the following floor
finishes per the Preliminary Plans and the HKS, Inc. Finish System Schedule
are as follows, which when taken in the aggregate shall not exceed
$970,798:
1. Carpet Tile -- $26.50 per square yard
2. Rubber Base - $1.00 per linear foot
3. Natural Stone - $20.00 per square foot
4. Ceramic Tile - $7.00 per square foot
5. Quarry Tile - $6.00 per square foot
6. Vinyl Composition Tile - $1.10 per square foot
7. Rubber Flooring - $7.00 per square foot
8. Wood Flooring - $10.00 per square foot
(k) $50,000 for project signage. (This is to include all required
interior/exterior code related signs, tenant interior and exterior building
mounted or monument signs, and all site traffic directional signs.)
(l) $20,000 for illuminating the north, west and south walls of the building by
using ground mounted up lights.
(m) $450,000 for landscaping. (This is to include all landscape materials,
irrigation requirements, exterior hardscape features, and only the premium
for materials incorporated into concrete flatwork)
(n) $33,000 for the five break room areas' appliances. (This is to include ten
(10) refrigerators @ $1,500 each, five (5) ice makers @ $900 each, five (5)
dishwashers @ $600 each, ten (10) microwave ovens @ $400 each, and five (5)
sinks with disposals @ $600 each, and installation).
(o) $73,000 for the five (5) break room areas for millwork, bars, counters, and
upper/lower cabinets.
(p) $20,800 for built in Men's and Women's Fitness Area lockers. (This is to
cover material and installation @ $400 each for 17 women's and 35 men's
full height plastic laminate finish lockers with combination locks.)
(q) $60,000 for a pedestrian canopy. (This is based on a metal deck canopy 10'
wide x 350' long x 8' height, supported on tubular steel columns, complete
with piers, painting, and lighting.)
(r) $20,000 for stone enhanced features at the exterior of the main entrance.
(s) $40,000 for Armourcoat wall finishes. (This assumes a material allowance of
$10.00 per square foot, and that such material will be specified for the
Main Lobby and other core area wall finishes.)
(t) $15,000 for nine (9) pair of fire rated magnetic hold-open doors with
frames and hardware at the main interior transfer stair.
(u) $20,000 for two (2) stackable/folding doors. (This assumes an allowance of
$250 per linear foot for material, track, framing, and installation of
doors two 10' high x 45' long.)
(v) $150,000 for millwork cabinets, counters, and shelving in copy rooms, main
rooms, utility rooms, closets, child care areas, and fitness area desk.
(This assumes all millwork to have plastic laminate finishes with melamine
shelving.)
(w) $110,000 for all window blinds/covering.
(x) $5,600 for two (2) 30' aluminum flag poles, complete with internal
halyards, foundations, base plates, and installations.
(y) $20,000 for power assisted handicap compatible doors (main front and back
entrance doors).
(z) $4,000 for ten (10) 52" four-blade variable speed, reversible motor ceiling
fans for the Fitness Center workout and aerobics areas.
(aa) $20,000 for material and installation of specialty accent and feature
lighting.
(bb) $20.00 per square yard (not to exceed $17,400 in total) for fabric
wallcovering over tackable substrate on longest sidewalls of the
Training/Video Conference and Reserved Dining Rooms.
(cc) $15.00 per square yard (not to exceed $18,645 in total) for vinyl
wallcovering in the rest rooms and dining rooms.
For items (j), (bb) and (cc) above, the aggregate or total dollar allowance for
each is based upon measured areas calculated by the General Contractor in its
review of the Preliminary Plans. In the event any of such areas so calculated by
the General Contractor is less than the actual such area, the allowance set
forth in (j), (bb) or (cc) above, whichever is applicable, shall be increased to
the lesser of (x) the actual aggregate or total cost of such item, or (y) the
amount based on the actual such area (or the actual pertinent dimension of such
area, as applicable) multiplied by the applicable per square yard, per square
foot or per linear foot allowance, with the increase of the amount as determined
in accordance with the foregoing provisions of this grammatical paragraph over
the amount currently set forth above in (j), (bb) or (cc) to be paid for by the
Landlord or the General Contractor directly or out of their respective
contingencies.
Exhibit E
Project Schedule
. Start of Construction: Estimated to be January 8, 2002, but no later
than January 30, 2002
. Substantial Completion: 380 calendar days following Notice to Proceed
(380 days includes 30 weather days)
. Provide Owner with notice of completion 35 days prior to Substantial
Completion
. Computer/Telecommunication Room Completion : 45 days prior to
Substantial Completion date
. Commissioning Phase: 21 days prior to Substantial Completion
. Installation of Initial FF&E: 14 days prior to Substantial Completion
. Completion of Punch List : Within 45 days following Substantial
Completion
EXHIBIT G
CONTRACTOR'S CONSENT AND AGREEMENT
----------------------------------
The undersigned ("Contractor") acknowledges the assignment by ________
__________________________________________ ("Owner"), to _______________________
("Lender"), as additional security for the obligations of Owner under a
Construction Loan Agreement ("Loan Agreement") between Owner (as Borrower) and
Lender (as Lender), dated __________________ of Owner's rights (but not Owner's
obligations) under the Construction Contract and any future modifications of the
Construction Contractor change orders ("Contract") between Owner and the
Contractor pertaining to the project contemplated by the Loan Agreement, such
project to be located upon certain real property described on Exhibit "A"
-----------
attached hereto and made a part hereto (the "Property"). Contractor hereby
consents to such assignment and represents and warrants to and agrees with
Lender as follows:
1. The copy of the Contract attached hereto as Exhibit "B" is a
-----------
true, correct and complete copy of the Contract, the Contract has not been
changed or modified, and the Contract is in full force and effect.
2. If Owner defaults under the Loan Agreement, Lender may elect by a
specific request in writing to (i) have Contractor continue performance under
the Contract, in which case Contractor shall thereafter perform under the
Contract pursuant to the remainder of this Paragraph 2, or (ii) have Contractor
stop work on the project and vacate the Property, in which case Contractor shall
promptly do so. If Lender elects by specific request in writing to have
Contractor continue or recommence to perform work under the Contract, Contractor
shall continue or recommence performance on Lender's behalf under the Contract
in accordance with the terms thereof, provided that Contractor shall be
reimbursed in accordance with the Contract requested by Lender following such
notice. Contractor will look solely to the Owner for all sums owing under the
Contract attributable to periods of time prior to the date Contractor begins to
act on Lender's behalf and at Lender's specific request. Contractor's agreement
to act under the Contract for Lender will not depend upon Contractor being paid
any sums owing by the Owner under the Contract prior thereto nor on whether the
Owner has otherwise defaulted under the Contract. Nor will Lender be liable for
any amounts owing Contractor if Lender requests Contractor to stop work and
vacate the Property pursuant to clause (ii) above. lender shall not be liable
for any damages Contractor may be entitled to recover from Owner or for change
orders made by Contractor and not approved by Lender pursuant to the Loan
Agreement. "Lender" as used in this Paragraph includes Lender's successors or
assigns, any receiver in possession of the Property, any purchaser upon
foreclosure of Lender's security, or any corporation or other nominee formed by
or on Lender's behalf (collectively "Lender's Successors"). This Paragraph 2
shall not affect the rights of Lender or Lender's Successors upon or following a
foreclosure or transfer of title to the Property.
3. If Owner defaults in making any payment or in performing any
other obligation under the Contract, Contractor shall promptly give Lender
written notice thereof, specifying the default and the steps necessary to cure
same; and if Contractor learns of any default in payment due any subcontractor
or other person supplying labor or materials for the project, Contractor shall
similarly advise the Lender thereof. Contractor will not exercise any remedy
available under the Contract, at law, or in equity arising from such default by
Owner until Lender shall have had the same opportunity to cure such default to
which Owner is entitled, if Lender so elects to cure such default, and such
longer period of time as may be necessary to obtain possession of, or title to,
the Property, provided that Lender shall have no obligation to cure any Owner
default. In the event the Contract provides for a cure period of less than
thirty (30) days in favor of Owner, Lender shall be entitled to cure such
default for a period of at least thirty (30) days notwithstanding such
provision. Any curative act done by Lender shall be as effective as if done by
Owner.
4. Contractor shall not perform work under any change order without
first securing Lender's written consent to such change order unless: (a) the
Owner has certified to
Contractor that Lender's consent is not required for such change order; and (b)
the cost of or reduction resulting from any single change or modification does
not exceed $_____________ and the aggregate amount of all such changes and
modifications does not exceed $_____________. In any such case, Contractor shall
promptly provide Lender or its construction consultant with a copy of such
change order or other modification. lender's consent shall not constitute any
assumption by Lender of any obligation under the Contract. In addition,
Contractor will not amend, modify, or terminate (except as specified below) the
Contract without the prior written consent of Lender, provided that contractor
may terminate the Contract because of a default by Owner thereunder to the
extent Contractor has such right in the Contract, provided Contractor has first
complied with Section 3 above.
5. Contractor hereby expressly subordinates all contractual,
constitutional and statutory mechanics' and materialmen's liens to which
Contractor may be or become entitled, to all liens and security interest
securing the loan contemplated by the Loan Agreement and expressly waives any
right to remove any removable improvements from the Property. Contractor shall
require all subcontracts and purchase orders to contain a provision
subordinating the subcontractors' and materialmen's liens to the liens and
security interests securing the loan contemplated by the Loan Agreement and
expressly waiving the right to remove removable improvements from the Property.
6. As of the date hereof, Contractor has no counterclaim, right of
set-off, defense or like right against Owner or Lender, and to the best of
Contractor's knowledge and belief, the Owner is not in default under the terms
of the Contract. Contractor is not in default under the terms of the Contract.
7. Nothing herein shall be construed to confer any present benefits
on Contractor or to create any contractual arrangement between Contractor and
Lender or to impose upon Lender any duty to see to the application of the
proceeds of the loan contemplated by the Loan Agreement or to give any notice of
any type to Contractor. Contractor acknowledges that Lender is obligated under
the Loan Agreement only to the Owner and to no other person or entity.
Contractor is executing this Consent and Agreement to induce Lender to advance
funds under the Loan Agreement, and Contractor understands that Lender would not
do so but for contractor's execution and delivery of this Consent and Agreement.
8. Contractor shall provide Lender promptly in each case with (a)
any information Contractor may have regarding defects in workmanship or
materials incorporated into or provided for the project which come to
Contractor's attention, (b) Contractor's estimate(s) of the stage(s) of
completion of the project, (c) any deviations or variations in construction of
the project from the plans and specifications used by Contractor, (d) any
information Contractor may have regarding any defaults by Owner, or any other
contractor or subcontractor under any construction contracts, and (e) any claims
of non-payment by any person furnishing labor or material in connection with
construction of the project.
9. This Agreement shall bind and benefit Contractor, Lender and
their respective successors and assigns, including Lender's Successors, their
successors and assigns.
10. Any notice for purposes of this Agreement shall be given in
writing or by telex or by facsimile (fax) transmission and shall be addressed or
delivered to the respective addresses set forth below, or to such other address
as may have been previously designated by the intended recipient by notice given
in accordance with this Section. If sent by prepaid, registered or certified
mail (return receipt requested), the notice shall be deemed effective when the
receipt is signed or when the attempted initial delivery is refused or cannot be
made because of a change of address of which the sending party has not been
notified; if transmitted by telex, the notice shall be effective when
transmitted (answerback) confirmed; and if transmitted by facsimile or personal
delivery, the notice shall be effective when received. Until changed by notice
given in accordance with this Section, the initial respective addresses for
notices are the following:
To Lender:
To Contractor:
11. The provisions of this Agreement cannot be waived, modified or
amended unless such waiver, modification or amendment is in writing and is
executed on behalf of each of Lender and Contractor.
12. No work of any kind, including the destruction or removal of any
existing improvements, site work, clearing, grubbing, draining or fencing of the
Property, has been commenced or performed on the Property and no equipment or
materials have been delivered to the Property for any purpose whatsoever.
13. Neither the Contract, nor any memorandum or affidavit thereof,
has been recorded by or on behalf of Contractor in the county where the Property
is located or in any other county. No affidavit of commencement of construction
of any improvements, performance of labor, furnishing of materials, or providing
of specially fabricated materials in connection with the construction
contemplated by the Contract has been executed or filed by Contractor in the
county where the Property is located or in any other county. Contractor will,
however, join in the execution of such an affidavit once such work has commenced
in form and substance satisfactory to Lender.
14. Contractor will address to Lender, naming Lender as an additional
named party or beneficiary, all certificates, statements, or representatives
regarding the completion of the project or any portion thereof.
By:_______________________________
Name:_____________________________
Title:____________________________
"CONTRACTOR"
E X H I B I T H
Schedule of Values & Clarifications
Project: NMAC
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DESCRIPTION XX XXXXX
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I. SITE & OFFICE BUILDING
------------------------------------------------------------------
Earthwork $ 118,000
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Site Utilities 261,620
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Site Specialties 15,442
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Landscaping & Irrigation Allowance 450,000
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Concrete Paving & Markings w/concrete
------------------------------------------------------------------
Sidewalks w/concrete
------------------------------------------------------------------
Building Concrete/Foundation 3,096,394
------------------------------------------------------------------
Masonry NIC
------------------------------------------------------------------
EIFS 16,190
------------------------------------------------------------------
Structural & Misc. Steel 2,025,000
------------------------------------------------------------------
Rough/Finish Carpentry/Millwork 29,528
------------------------------------------------------------------
Roofing 272,951
------------------------------------------------------------------
Water-proofing, damp-proofing, caulking 46,510
------------------------------------------------------------------
Fireproofing 216,929
------------------------------------------------------------------
Doors, Frames & Hardware 237,423
------------------------------------------------------------------
Windows/Glass/Glazing 1,180,450
------------------------------------------------------------------
Drywall Partitions and Ceilings 1,107,100
------------------------------------------------------------------
Flooring - Tile, Marble, VCT, Carpet, etc. 1,001,644
------------------------------------------------------------------
Painting 350,200
------------------------------------------------------------------
Miscellaneous Specialties and Accessories 88,257
------------------------------------------------------------------
Window Blinds Allowance 110,000
------------------------------------------------------------------
Special Construction - Kitchen/Dining
Allowance 1,350,000
------------------------------------------------------------------
Walkway Allowance 60,000
------------------------------------------------------------------
Elevators 251,000
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Elevators - Cabs - Finish Allowance 60,000
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HVAC & Plumbing 3,114,722
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Fire Protection 249,500
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Electrical 3,207,385
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Site Lighting w/electrical
------------------------------------------------------------------
Voice & Data Allowance 1,330,000
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Duel Feed Allowance 350,000
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Project Signage Allowance 50,000
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Flag Pole Allowance 5,600
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Miscellaneous 692,800
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Subtotal Construction Costs $ 21,344,645
------------------------------------------------------------------
General Conditions 809,420
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Builder's Risk & Liability Insurance 99,143
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Other - Define 0
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Permits 60,901
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Contingency 500,000
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Contractor's Fee 722,108
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Payment and Performance Bond 171,853
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Subtotal Fees, Gen.Cndtns., Ins.
Bond, Etc. $ 2,363,425
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Accepted Alternates:
------------------------------------------------------------------
Two (2) Year Warranty 77,858
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20 Year Roof (Single Ply) Warranty 19,432
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Subtotal Alternates $ 97,290
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HKS Fees & Reimbursables $ 1,520,657
------------------------------------------------------------------
------------------------------------------------------------------
T O T A L $ 25,326,017
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------------------------------------------------------------------
Project Schedule - Total Calendar Days/Mo. 380/12.5
------------------------------------------------------------------
Project Schedule - Includes Weather Days 30
------------------------------------------------------------------
EXHIBIT H
Xxxx. X. Xxxxx, Inc.
Nissan Motor Acceptance Corporation
Irving, Texas
Division 1 - General Requirements
a) Excludes city utility impact fees and/or roadway impact fees. Permit
and meter fees are included as an allowance in the amount of $60,901.
b) Addendums acknowledge include the following:
. Addendum #1 dated May 11, 2001
. Addendum #2 dated May 16, 2001
c) Excludes laboratory testing including but not limited to soils,
concrete, steel, compression and field control (provided by owner).
Division 2 - Sitework/Utilities
a) Building pad construction for base bid is based on stripping the
building pad area free of vegetation and excavating 24" in depth to
prepare crawl space for suspended slab.
b) Site and paving areas will be stripped of vegetation and cut/filled to
drain and compacted to 95% density.
c) Concrete paving is based on 5" concrete, 3000 psi, reinforced w/No. 3
rebar at 18 o.c. over 95% compacted subgrade, unstabilized. Fire lanes
are based on 5" concrete, 3500 psi, reinforced w/No. 3 rebar at 18 o.c.
over 95% compacted subgrade, unstabilized. Fire lane limits are drives
east from Freeport Pkwy, north along the north/south drive, west along
the north side of the training building and north to Regent Blvd.
d) Curb is based on a 6" concrete integral curb.
e) Storm drainage is based on the parking area sloped to sheet drain to
perimeter curb inlets with RCP pipe to direct water underground to
existing city storm sewer system. Roof drains will run down the
interior side of the panels and underground to a lateral storm drain
system.
f) Site Utilities are based on the following:
WATER
-----
. 8" Water Service 1300 lf
. 8" Fire line to building 80 lf
. 6" Fire hydrant lead 80 lf
. (1) 8" double detector check
. (4) ea. fire hydrants
. 4" domestic water line 80 lf
. (1) 2" irrigation meter
1
SANITARY SEWER
--------------
. 8" sanitary sewer service 330 1f
. Tie-in to existing manhole (up to 10' deep).
. (2) ea. Cleanouts
. (1) ea. Double cleanout
STORM SEWER
-----------
. 48" RCP 90 1f
. 42" RCP 130 1f
. 30" RCP 384 1f
. 24" RCP 732 1f
. 18" RCP 710 1f
. (11) ea. 10' curb inlets
. (4) ea. 2' x 2' grate inlets
. 15" HDPE pipe 150 1f.
. 12" HDPE pipe 210 1f.
. 10" HDPE pipe 275 0x.
. 0" XXXX xxxx 000 0x.
. 6" HDPE pipe 350 1f.
Utility inspection fees are included.
City maintenance bond is included.
g) Earthwork is based on the following:
. a balance site.
. no import or select fill (base bid).
. excludes lime stabilization.
. 2' crawl space.
Division 3 - Concrete:
a) Base bid includes an elevated slab over structural steel and metal
deck.
b) A 2" unreinforced mud slab is included for crawl space.
c) Tiltwall panels are based on formed and poured on casting beds and not
on the slab over metal deck.
d) Tiltwall panels are based on being braced from the outside perimeter of
building with a continuous grade beam to be abandoned in place.
e) 3000 psi concrete for all foundation concrete and mud slab.
f) 4000 psi for tiltwall panel construction.
g) 3500 psi for fire lanes.
h) 3000 psi for elevated slabs and paving.
i) 3000 psi lightweight on first floor slab only.
j) 4" concrete with 2" deck is assumed at the roof mechanical screen area
as shown on the architectural site plan.
2
k) Drilled Piers are based on the following
. (12) ea. 30" diameter piers 28' deep with 11' of rock penetration.
. (136) ea. 30" diameter piers 28' deep with 5' of rock penetration.
. (69) ea. 30" diameter piers 28' deep with 24' of rock penetration.
. (66) ea. 18" diameter piers 28' deep with 4' of rock penetration.
Drilled piers are based on an estimated depth of 28' with referenced
penetration. Lesser/Greater depth of piers can be added/deducted per the
following:
. 18" Piers/lf. Add $28.40 Deduct $6.00 Casing Add $17.00
------ -----
. 30" Piers/lf. Add $69.30 Deduct $13.00 Casing Add $22.00
------ ------
Note: Casing of piers is included in the base bid. If lesser depth of piers
is encountered credits for casing will be provided on a per pier basis by
the drilling contractor.
Division 4 - Masonry (NIC)
Division 5 - Metals
a) Steel tonnage is based on 1112 tons.
Division 7 - Thermal and Moisture Protection
a) Paving control joints sealed with hot pour sealant.
b) Tiltwall panel joints are assumed to be caulked both sides.
c) Building slab joints are assumed not to be caulked.
d) Waterproofing is based on liquid membrane at mechanical rooms only.
Division 8 - Doors and Windows
a) Wood doors are assumed to be prefinished.
b) Door frames at interior office and tenant office areas (excluding core,
mechanical, electrical and maintenance rooms) are based on prefinished
aluminum knockdown frames. Side lights are included only at offices,
conference rooms and departmental suites.
Division 9 - Finishes
a) Zolotone finishes are based on $50.00 per gallon with 1 base color and
3 suspended colors.
b) Exterior tiltwall paint is based on one (1) color and a medium texture.
Exterior paint is assumed to be an elastomeric with 1 prime coat and 1
finish coat.
c) Typical ceiling heights are based on 10' a.f.f. and bathroom ceiling
8'6" a.f.f.
d) Tackable substrate is based on 1/4" cork with field applied fabric
wallcovering.
3
e) The Armour Coat allowance includes all labor materials and equipment
to perform the Armour Coat finishes.
f) Finish systems for 4, 6, 9, 10, 18, 21, 23, 25, 26 and 27 are per the
following:
. System #4 - wet walls and returns are tile, all other walls VWC.
. System #6 - ceramic tile on walls behind the serving counter, all
others gyp board.
. System #7 - assumes 1 back wall with acoustical panels and 1 long
wall of the private dining room with acoustical fabric panels.
All others VWC.
. System #9 - assume 1 long wall as tackable and all others painted
gyp.
. System #10 - All walls painted, aromourcoat deleted.
. System #18 - Assume acrovyn panels to 36" a.f.f. and paint above
to ceiling. Bumper guard at top of base and at 36".
. System #21 - Assume 2 wet walls with acrovyn wainscot and paint
above.
. System #23 & 27 - Tile on wet walls and return walls, all other
walls VWC.
. System #25 & 26 - Assume 1 long wall mirrored and other walls
painted.
Division 15 - Mechanical
a) Fire dampers are assumed at electrical rooms and floor penetrations.
b) Includes a fire pump with automatic transfer switch for fire
protection system.
c) Sprinkler heads do not include centering in ceiling tile.
d) Sprinkler pipe is based on screwed, schedule 10 pipe.
Division 16 - Electrical
a) Computer center excludes any special power requirements and special
requirements for PDU's.
4
