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2013-334\\C'OI)AD\DepartmetrtstLe6al\Our pouismenfs\ContractstCC7NVF,NTION CI;h1'CF?,ft 2012-2Q13\(7rdinance Der�ton �ctnve�ttion Center Contract ciacx ORDINANCE NO. 2013-334 AN ORDINANCE APPROVING THE DENTON CONVENTION CENTER PROJECT MASTER DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, (CITY), THE UNIVERSITY OF NORTH TEXAS (UNT), O'REILLY HOTEL PARTNERS DENTON, LLC (OHPD) AND O'REILLY HOSPITALITY MANAGEMENT, LLC (OHM) AND 1NCLUDING EXHIBITS A THROUGH H THEREOF TO WIT: EXHIBIT "A" CITY- UNT LAND LEASE, EXHIBIT "B" CITY-OHPD CONVENTION CENTER SUBLEASE, EXHIBIT "C" OHPD-UNT LAND LEASE, EXHIBIT "D" PRELIMINARY SITE PLAN, EXHIBIT "E" PROFESSIONAL SERVICES AGREEMENT FOR CONSTRUCTION MANAGER-AGENT (CMA), EXHIBIT "F" PROFESSIONAL SERVICES AGREEMENT — ARCHITECT OR ENGINEER, EXHIBIT "G" CONTRACTOR PAYMENT GUIDELINES, EXHIBIT "H" HOSPITALITY MANAGEMENT PROGRAM AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City desires to develop a hotel, restaurant and Convention Center project on land owned by the University of North Texas ("UNT"), in order to promote travel, tourism, meetings, conventions, and events for the economic development and growth of the iJNT and City of Denton community and for the economic benefit of the Parties; and WHEREAS, to facilitate the development of the hotel, restaurant and Convention Center Project, the City and LTNT desire to enter into a development agreement (the "Development Agreement") with O'Reilly Hotel Partners Denton, LLC ("OHPD") And O'Reilly Hospitality Management, LLC ("OHM"); and WHEREAS, the City will lease from LTNT the Convention Center Site (as defined in the Development Agreement) pursuant to the terms of a long term land lease with UNT ("City-LTNT Land Lease") (as defined in the Development Agreement), and will construct the Convention Center; and WHEREAS, upon completion of the Convention Center and improvements to the Convention Center Site, the City will sublease the Convention Center to OHPD pursuant to the terms of a sublease between the City and OHPD ("City-OHPD Convention Center Sublease" or "City Facilities Sublease") (as defined in the Development Agreement); and WHEREAS, OHM will provide construction management services and architect and engineer services to the City for the construction of the Convention Center; and WHEREAS, OHM will operate and maintain the Convention Center on behalf of the City, as public facilities in accordance with the terms, provisions and requirements of the City Facilities Sublease; and WHEREAS, the City Council of the City of Denton deems it is in the public interest and serves a municipal and public purpose to enter into an agreement with the University of North Texas (LTNT), O'Reilly Hotel Partners Denton, LLC (OHPD) and O'Reilly Hospitality Management, LLC (OHM) for the purpose of the construction and operation of a hotel and convention center; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. City Council iinds that the Agreement between the City of Denton, UNT, OHPD and OHM serves a valid municipal and public purpose and is in the public interest. SECTION 2. The Development Agreement between the City of Denton, iJNT, OHPD and OHM attached hereto is hereby approved. The City Manager or his designee is hereby authorized to execute the Agreement on behalf of the City of Denton. The City Manager is hereby authorized to carry out the City's rights and duties under the Agreement including authorization for the expenditure of funds provided for in the Agreement. SECTION 3. The form of the City Facilities Sublease and the City-iJNT Land Lease (as both are defined in the Development Agreement, and together referred to herein as the "Leases") are hereby approved in substantially the form attached to the Development Agreement with such changes as are authorized by the City Manager and the Development Agreement. The City Manager or his designee is hereby authorized to execute the Leases on behalf of the City of Denton at the time and pursuant to the terms of the Development Agreement and the respective Leases. The City Manager is hereby authorized to carry out the City's rights and duties under the Leases including authorization for the expenditure of funds provided for in the Leases. SECTION 4. The Professional Services Agreement for Construction Manager-Agent P o ess ndmm� ( )� the Professional Services Agreement — Architect or Engineer (together, the " al Services Agreements") as attached to the Development Agreement are hereby approved. The City Manager or his designee is hereby authorized to execute the Agreement on behalf of the City of Denton. The City Manager is hereby authorized to carry out the City's rights and duties under the Professional Services Agreement including authorization for the expenditure of funds provided for in the Professional Services Agreement. SECTION 5. This Ordinance shall become effective immediately upon its passage and ._ ................ approval. PASSED AND APPROVED this the �� day of .��,,�,�� „�, 2013. � � � 1 l � y � � �� ,� � �� a � � � a �r �� w � �� ! e�, �° �� , � �� "� �,��'�� . � ___. —�— .._ .�� .� .._ ............. �t� �� 3t.N��I��L��l;��HS, �1r'�YOR ATTEST: JENNIFER WALTERS, CITY SECRETARY �wW � � BY: �;`'�� _��.� ,..��r. �� . ��. ,��. � Page 2 #4424603.1 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY rt,�"�� G� �� ' � a'"�� BY: s, , �°"� � m� � � � . a. � �..� � —�.�. � �� --- .. _ Page 3 #4424603.1 . � � �� . � � � •�' • • . ..� Dated: December 10, 2013 #4338720.24 TABLE OF CONTENTS ARTICLE I 1.1 Definitions ........ ......... ......... ......... .............. ..... ........ ......... ...................... ......... ..........2 ARTICLE II PROJECT OVERVIEW 2.1 Summary of Project Development .. ......... ......... ......... ......... ......... ......... ......... ..........10 2.2 Project Overview ........ ......... ......... ..t...,.. ...,..,.. .,......, ........,. ....,....�.. .. ,., ...,..... ,....,..,.10 2.3 Project Phases ........................................... ......... ......... ......... ......... ........ ......... ......�...11 2.4 Term .......................................................... ......... .......... ........ ..�....., ......... ..,�..,.,, ..........12 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 3.12 ARTICLE III DESIGN DEVELOPMENT ACTIVITIES OHPDServices- Hotel .................... ......... ......... ......... ......... .......... . ....... .......�,. ,......., I � Agency of OHM for the City.......... .� ....... ......... ......... ......... ........ ......... ......... ..........12 OHM Services — City Facilities ...... ......... ......... ..<.,,... ,..,..a.. ....,...,....,...,.. ,.,....., ,...,...., � � ProjectAgreements ............................................................................................................18 Reciprocal Access Agreement ............................. ......... ......... ......... ......... ......... ..........22 Hotel Franchise Agreement ................................. ......... ......... ........ ......... .....k... ........,.22 Cooperation............................................................................. .......m................,,...,.,.....23 Consultation.. ..... ......... ......... ......... ......... .............. ....... _. Requirements................................... ..............�.. ., ........ ..,...... ......... ,,..,.... .....,..,......,,r..23 Control of the Convention Center Site ....... ......... ......... ......... ......... ......... ......... ..........23 Tax Increment Reinvestment Zone ............ .....,.,.. ..,....,. ........ BudgetAdjustments ......................... ......... ......... ......... .......... ... ..... ......... ......... ..........24 ARTICLE IV CONSTRUCTION ACTIVITIES 4.1 Agency by OHM for OHPD ...................... ......... ......... ......... ......... .......t. ......,.. ,�.,...�..24 4.2 Construction Permits ........................ ......... ......... ......... ............�... .. .�....... .,....,.. ,.,.......24 4.3 Payment and Performance Bonds .... ......... ......... ......... ......... ......... ......... ....................24 4.4 Hotel and Restaurant Construction ...................... ......... ......... ......... ......... ......... ..........24 4.5 Construction Phase ................................................................................. ............. ... ..a......25 (i) #4338720.24 ARTICLE V FINANCING OF THE PROJECT 5.1 Design Development Phase ...................... ... ...... ....... �. ...,,.... ......... .,,.,.... .,...,.,. .....,....27 5.2 Construction Phase .................................... ......... ......... ......... ......... ......... ......... ..........30 5.3 City Financing Contribution Limitation... ....,..,, ....,. ... ......... ......... ......... ......... ..........30 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 7.1 7.2 7.3 7.4 7.5 7.6 ARTICLE VI . . , . Purchasing Services .............. ......... ......... ......... ......... ......... ......... .......... . ......a. ......�..30 Paymentfor FF&E .............................................................................................................32 Infrastructure.. ... .. .. .. .. .. .. .. .. . .... . ... .. .... .... ..... .. .. ... ..... .. .. .... ... .. .. .. .. .. .. .. . . . .. .. ... .. ... .. .. ..... .. . .. ... . .. . 3 2 Easements................................................. .t ..�....�,. ....., ..........,........ ......... ,........ ..........33 Waiver of Development Standards . ......... ......... .......... ..,...... ...,..,... ......,.. .......,. ..,..,.,.,33 No Relinquishment of Municipal Regulatory Authority ...................................................33 TitleSearch ........................................................................................................................33 Extensionsof Deadlines .....................................................................................................34 ARTICLE VII ADDITIONAL OBLIGATIONS OF OHPD Assignment, Transfer Lease............ .. ......... ..........34 Compliance with Applicable Law .....................................................................................35 Project Quality and Operation ......... ......... ......... ......... ......... ......... ........� ...,..... .._,.....35 Paymentof Taxes .........................................................................................,.,.....,...............36 Limitation on Tax Exemption .................................................................,...,,.,,...,.......,,,,.......36 Survivalof Obligations ................................................................................................�..�..36 ARTICLE VIII MAINTENANCE AND INSURANCE 8.1 Maintenance ................ ......... ........ . ......... ......... ......... ......... ......... ......... ......... ..........36 8.2 Insurance ........... . .............................................................................:..................................3 7 8.3 Policy Requirements ..........................................................................................................39 ARTICLE IX CONDITIONS 9,1 Conditions to Performance .... ......... ......... ........a ........,,....,..,. ........, ,....,.., ..,...... .,...,,.39 (ii) #4338720.24 ARTICLE X REPRESENTATIONS, WARRANTIES AND COVENANTS 10.1 Representations and Warranties of the City ...................................................... �.,..............41 10.2 OHM's and OHPD's Representations and Warranties ......................................�.............�.41 10.3 LTNT's Representations and Warranties ......................... ......... ......... ......... �........ ,..,.�....42 ARTICLE XI TERMINATION PROVISIONS 11.1 Termination Events ................................................................................. ..... ....................43 11.2 Termination upon Default ..................................................................................................44 12.1 12.2 12.3 12.4 12.5 12.6 12.7 12.8 ARTICLE XII DEFAULT AND REMEDIES Defaultby OHPD ........ ......... ......... ......... ......... ......�.. ,........ .s..,,... .,......,...,..�.. . .........44 Defaultby OHM ................................................................................................................45 Defaultby the City .............................................................................................................46 Defaultby UNT ................................................... ....,,....,,.. ..... ......... ......... ......... ..........47 Remedies............................................................................................................................48 OHM/OHPD's Remedies ...... ......... ................... ......... .....�r,. ,...,.... .....,........................48 City's Remedies ......................................... ......... ......... ..................................................49 Accounting............................................................................. ............................................49 ARTICLE XIII COST SAVINGS AND EXPENSE REIMBURSEMENT 13.1 Cost Savings .................... . .... ......... ................ ..� ....�... ......... ...,,.,.,, ,....... .......�. ...,......49 13.2 Shared Costs and Expenses.... ....,..� . ......... ....k,... ...,..... ....,.... ...,.,... ,.,.,�....k...................49 13.3 Monthly Draw Requests ........ ......... ......... ......... .................... ............ ...........................50 13.4 City Payments ........................ ................... .................. ....... .. .. ��..... ,......,......................50 14.1 14.2 14.3 14.4 14.5 14.6 14.7 ARTICLE XIV MISCELLANEOUS NamingRights ....................... .t........ .F...... ......... ......... .......... .......... .,..... .......,...,,...,...50 Signageon Hotel .................... ................... ......... .............. ....... ....... ........ ......... ..... ....50 Coordination with iJNT College of Merchandising, Hospitality and Tourism .................50 Standardof Care ......................................................................................................�..,..,...51 Contractors, Specialists and Consultants ................�,...,........,.....,....,.,..,....�..,..�.............,....51 Operation and Maintenance of the Hotel ... ......... ......... ......... ......... ......... ......... .........51 Assi'g ....... nment ..,....., . ......... ......... ......... ........... .. ..... ...�.��... ...,.... ..,,...,.,.� ...... ...,..... (iii) #433872Q.24 14.8 Brokers ................................................................................................�..............................52 14.9 Conflicts .............................................................................................................................52 14.10 Counterparts .................................... .................... .......................... .. .......... ,..,........ ....<..52 14.11 Entire Agreement .:.......................... ......... ......... ............ ...... ......... ......... .............. .....52 14.12 University Liability ..... ......... ...t...,. ...,..... .....,..,.,.,.. .... �......., ,...,.,, ...,...., ..,...,.. ..., ...��.52 14.13 City Liability ............... .....a... ..,,...,. ......,., ..,..,.. ,.... �...... ......,....,............. . .......�. ..........52 14.14 GoverningLaw ................................................................................................��.....,..........52 14.15 General Provisions ................ ......... .........� . ....... ......... ...,...,, ,......,,......, . .... ...... .......,..52 14.16 Extensions of Deadlines ........ ......... ................... ......... .................. ...... ...�.,,...... ..........54 14.17 Independence ofAction ........ ......... .�....... t.,.,.... ......,.. ,...,,..,. .,.. ...... ..w..... .......... ..,...,,.,54 14.18 No Joint Venture ......... ............... .... ........ ......... ......... .............. .... ......... ...............�.. .54 14.19 Notices .............. ......... ........... ....�.. ...,,.........,.... ,...,............. ..�.k .... ......... ......,...,....... .55 14.20 Severability ......................................................................... ............... ..............................56 14.21 Time .................. ......... ......... ........ ....... .... ........ ........ ......... ................... .......... .........56 14.22 Counterparts ...... ......... ......... ......... .......�. ...,�..,....�.. ..........,.. .....,.,..,,...., .. ..,.�..�. ...,..�..56 (iv) #4338720.24 STATE OF TEXAS § COUNTY OF DENTON § MASTER DEVELOPMENT AGREEMENT This Master Development Agreement ("Agreement") is entered into as of December 10, 2013 (the "Effective Date") by and between the City of Denton, Texas, a municipal corporation and political subdivision of the State of Texas ("City") the University of North Texas, an institution of higher education of the State of Texas ("LTNT"), O'Reilly Hotel Partners Denton, LLC ("OHPD"), a Missouri limited liability company, and O'Reilly Hospitality Management, LLC ("OHM"), a Missouri lirnited liability company. The City, UNT, OHPD, and OHM are sometimes referred to collectively as the "Parties." I":7 �[y Y'II� If.'� WHEREAS, iJNT is a component institution of higher education of the University of North Texas System, an agency of the State of Texas, the owner of that certain real property as more particularly described on Exhibit "D" attached hereto and incorporated herein for all purposes (the "Project Site"); and WHEREAS, the City and OHPD are desirous of developing a hotel, restaurant and Convention Center project on the Project Site (as further defined below), in order to promote travel, tourism, meetings, conventions, and events for the economic development and growth of the LJNT and City of Denton community and for the economic benefit of the Parties; and WHEREAS, the City will lease from LTNT the Convention Center Site (as defined herein) pursuant to the terms of a long term land lease with LJNT ("City-iJNT Land Lease") (as defined below), and will construct the Convention Center, with OHM acting as Construction Manager Agent ("CMA") and Architect on behalf of the City pursuant to Professional Services Agreements (described more particularly herein), (as further defned below); and WHEREAS, upon completion of the Convention Center and improvements to the Convention Center Site, the City will sublease the Convention Center to OHPD pursuant to the terms of a sublease between the City and OHPD ("City-OHPD Convention Center Sublease" or "City Facilities Sublease") (as defined below); and WHEREAS, OHM will operate and maintain the Convention Center on behalf of the City, as public facilities in accordance with the terms, provisions and requirements of the City Facilities Sublease; and WHEREAS, OHPD will lease frorn UNT the Hotel Site (as defined herein) pursuant to the terms of a long term land lease with LTNT ("OHPD-LTNT Land Lease"), and will construct the Hotel and Restaurant (as further defined below); and WHEREAS, OHPD will finance and construct the Hotel and Restaurant pursuant to the OHPD-LTNT Land Lease and this Agreement; _1�. #4��s7za.za NOW THEREFORE, in consideration of the foregoing and the mutual promises contained herein, and other valuable consideration the sufficiency and receipt of which are hereby acknowledged, the Parties agree as follows: .• 1.1 Definitions. As used herein the following terms are defined as set out below: "Applicable Law" means all laws or statutes, rules or regulations, and any amendments thereto, of the State or the United States by which the City and its powers, securities, operations and procedures are, or may be governed or from which its powers may be derived, including all City codes, ordinances and development standards. All City codes, ordinances, rules and development standards shall be applicable to this agreement and the Project, irrespective of whether such codes, ordinances, rules and development standards would otherwise normally apply. "Approved Franchise" means a franchise agreement approved by the City and LJNT with an Approved Franchisor for a term of no less than eighteen (18) years from the date the Hotel opens for business, whereby OHPD is permitted to operate the Hotel and Restaurant using the name and reservation system of any Approved Franchisor. "Approved Franchisor" means, initially, an Embassy Suites and a Houlihan's Restaurant & Bar, or some other restaurant of similar or higher quality; provided that from and after the date the Hotel opens for business to the public throughout the term of the Approved Franchise and in the event, after the expiration of the Approved Franchise, another Franchise is entered into, such term after approval by LJNT and the City in their reasonable discretion, shall also include a national or international hotel franchisor for a specific hotel product of the same or higher quality than Embassy Suites, approved by the City and iJNT in their reasonable discretion. "Approved Plans' shall mean the architectural and engineering drawings, plans and specifications relating to the Project as development in accordance with the Master Development Agreement entered into between the City, iJNT and OHPD. "Base Rent" means the amount set forth in the City-OHPD Convention Center Sublease. Base Rent shall commence on the date set forth in the City-OHPD Convention Center Sublease. "Bond Debt Payments" means the semi-annual debt service payments made by the City on its Certificates of Obligation issued to fund the construction of the Convention Center. "City Facilities" means the Convention Center and related automobile parking spaces as determined to be required by the City's development standards. "City Financing Contribution" means the net proceeds of the City's issuance of Certificates of Obligation, the principal amount of which shall be determined by the City based upon the Total Convention Center costs; provided that the City shall not be obligated to contribute more than $25,000,000 (total, including design and construction costs) to the City -2- #4338720.24 Facilities. The City may contribute additional funds or resources to the City Facilities, pursuant to this Agreement, but the City shall not contribute more than $25,000,000 in net proceeds of its debt financing for the total cost of the City Facilities. "City-OHPD Convention Center Sublease" or "Sublease" or "City Facilities Sublease" means the sublease agreement to be executed by OHPD and the City, whereby OHPD will sublease the Convention Center and Convention Center Site from the City, which sublease shall be in form and content attached hereto as Exhibit "B," as same may be modified, amended, extended or renewed from time to time upon the approval of the Parties. "City-iJNT Land Lease" means the lease agreement to be executed by the City and LTNT, whereby the City will lease the Convention Center Site from LTNT, which land lease shall be in form and content attached hereto as Exhibit "A," as same may be modified, amended, extended or renewed from time to time with the unanimous agreement by the Parties. "Closing" means a date specified by the Parties, on which the City has issued its debt and receives money to fund the City Financing Contribution and OHPD receives money to fund its Private Financing Contribution, as evidenced to the City. "Closing Deadline" means the earlier of (a) 45 days after the date the City sells its debt in the public market, and (b) one-hundred twenty (120) days after the Financing Viability Deadline. "Commencement of Construction," "Construction Commences" on, and/or a party will be deemed to "Commence Construction" on an improvement in the Project when a party obligated to construct has: (a) obtained all necessary permits and approvals from the City and any other governmental body having jurisdiction over the construction of the improvement to allow the construction thereof; (b) entered into a contract with a construction contractor which requires such contractor to construct the entirety of the improvement with all reasonable diligence; (c) issued a"Notice to Proceed" or the equivalent to the contractor authorizing the contractor to commence and pursue all of the work necessary to complete the improvement with all reasonable diligence in accordance with the aforementioned contract; (d) obtained from general contractor a duly recorded Affidavit of Commencement of Construction in accordance with §53.124 of the Texas Property Code; (e) actually commenced substantial site work on the improvement under its construction contract, with the intent of prosecuting all work until completion in accordance with the terms of the contract; -3- #a33s�2a.24 (� with respect to the Hotel only, entered into a loan or credit agreement with a commercial bank or similar financial institution (a "Commercial Lender"), having the financial capability to perform its obligations under such agreement, which provides construction and permanent financing upon terms typical for "construction/mini-perm" financing (not subject to any contingency or condition other than those typically associated with such loans), which loan must be in a principal amount sufficient, together with other available funds committed by OHPD to the satisfaction of the City and LTNT, to pay all costs and expenses for the design, development, construction and furnishing of the Hotel. Upon reasonable notice, a representative of the City and LTNT shall be permitted, during normal business hours, to review the loan or credit agreement and accompanying security instruments relating to the Hotel and Restaurant financing; and (g) In addition to (a)-(� above, with respect to the Hotel only, the Approved Franchise has been obtained prior to the Feasibility Deadline. "Comparable Convention Centers" means the operation and maintenance of the Convention Center in a manner such that the condition of the Convention Center shall demonstrate refined, high quality and fully functional appointments; furniture, fixtures and equipment; exterior and interior finishes; landscaping; and mechanical, electrical and structural components consistent with convention centers of comparable size and operation within the State of Texas that are affiliated with Comparable Hotel Properties. For purposes of the City-OHPD Convention Center Sub-Lease, the term Comparable Convention Centers shall include, as of the Effective Date (but which may not be included in the future if such properties no longer meet the definition of "Comparable Convention Centers"), the San Marcos, Texas convention center and the Frisco, Texas convention center. The City shall inspect the Convention Center on an annual basis to determine compliance with the operation of the Convention Center in the manner of Comparable Convention Centers. Reasonable exceptions to this standard of Comparable Convention Centers may be agreed to by the Parties. "Comparable Hotel Properties" means a hotel that (i) is a, full-service, "convention- oriented hotel" (not including so-called "budget" or "limited service" hotels or motels) or, (ii) has at least two hundred fifty (250) keys, (iii) contains features, finishes and amenities that are available in hotels of similar age that are at all times during the term of the OHPD-LTNT Land Lease, maintained so as to be considered an upscale, full-service, "convention-oriented" or full- service hotel, as applicable, that is operated and maintained according to standards similar to those of the Embassy Suites brand as such brand standards exist on the Effective Date of this Agreement, and (iv) is located within the State of Texas. For purposes of the OHPD-iJNT Land Lease, the term Comparable Hotel Properties shall initially include, as of the Effective Date (but which may not be included in the future if such properties no longer meet the definition of "Comparable Hotel Properties"), Embassy Suites — San Marcos, Texas and Embassy Suites — Frisco, Texas. "Completion of Construction" of any improvement will be deemed to have occurred when the constructing parly has accomplished all of the following tasks and the improvement has been substantially completed in accordance with the requirements of this Agreement, including "Punch List Items": -4- #4338720.24 (a) The constructing party has obtained, for the Hotel, an AIA standard Certificate of Substantial Completion for the improvement, or for the Convention Center, a Certificate of Substantial Completion for the improvement in a forrn approved by the City, executed by the party's project architect; (b) The general contractor has provided an Affidavit of Completion and Waiver of Liens and provided proof of payment of all subcontractors and suppliers and waivers or releases of liens for each; and (c) The constructing party has obtained a permanent certificate of occupancy or such similar document for the improvement, permitting continuous uninterrupted legal use thereof. "Construction Deadline" means the date on which the Construction Phase commences pursuant to Section 5.2 herein, such date being no later than one hundred eighty (180) days after Closing. "Convention Center" means an "upscale" convention center facility of approximately 100,000 square feet (but no less than 90,000 square feet) in size under roof and constructed upon the Convention Center Site, containing meeting rooms, and one (1) large ballroom sufficient to lawfully accommodate approximately 2,000 people for a banquet-style event, and related improvements, including landscaping, the required parking spaces as determined by the City's development standards, and required infrastructure. "Convention Center Budget" means the budget for the design, construction and FFE of the Convention Center and Convention Center Site improvements as described in Article III. "Convention Center Site" means that part of the Project Site whereon the Convention Center and related improvements shall be constructed, as depicted on Exhibit "D" attached hereto. "Convention Center Design Development Architectural Drawings" means the design of the City Facilities that reflect an approximately 35% completion rate, more commonly known in the architectural profession as a"Design Development" or "DD": set of architectural and engineering drawings, in order to obtain drawings and specifications necessary to obtain a "proposal package" to construct the City Facilities. "Contractor Payment Guidelines" means those guidelines attached hereto as Exhibit "G." "Design Development Phase" means the Period of time commencing upon the execution of this Agreement; provided this Agreement is not terminated in accordance with Article XI prior thereto, and ending upon the date that the Construction Phase commences, as such date may be extended by mutual agreement of the Parties (provided that the Design Development Phase shall terminate no later than the Construction Deadline), during which the Parties shall diligently and in good faith attempt to accomplish and mutually agree upon all of the matters enumerated in Article III hereof. -5- #4338720.24 "Developer" means, with respect to the City Facilities, O'Reilly Hospitality Management, LLC, a Missouri Limited Liability Company or an Affiliate. "Development Deadline" means the earlier of (1) the expiration of the Design Development Phase when all Design Development Phase activities have been completed and the Project is ready for construction pursuant to the Construction Phase, or (2) the Construction Deadline. "Development Fees" means the fees paid to the City by OHPD as developer of the Project, pursuant to Applicable Law, which shall include, but shall not be limited to, building permits, utility fees and other technical fees associated with the development and construction of the Hotel and Restaurant. "Effective Date" is defined in the preamble. "Event of Bankruptcy or Insolvency" means the dissolution or termination of a party's existence as a going business, insolvency, appointment of receiver for any part of the party's property and such appointment is not terminated within ninety (90) days after such appointment is initially made, or any general assignment for the benefit of creditors, or the commencement of any proceedings under any bankruptcy or insolvency laws by or against a party (and, in the case of involuntary proceedings, such proceedings are not dismissed within ninety (90) days after the filing thereo fl. "Feasibility Deadline" means, the date that the City has adopted its resolution authorizing Notice of Intent provided that all requirements and/or conditions of Article III and Article V herein that are required to be met/occur prior to the Feasibility Deadline are met pursuant to the provisions of those Articles. "Final Site Plan" means the final architectural plan, landscape architecture document, and a detailed engineering drawing of the proposed Hotel and Restaurant and/or City Facilities, including building footprints, travelways, parking, drainage facilities, sanitary sewer lines, water lines, trails, lighting, and landscaping elements for either or both the Hotel and Restaurant and/or City Facilities. "Financing Viability Deadline" means the date that is ten days subsequent the sale date of the City's debt obligations published in the Notice of Intent. (The City may sell its debt on or after such published sale date). "Force Majeure" means any contingency or cause beyond the reasonable control of a party including, without limitation, acts of God or the public enemy, acts of terrorism, war, riot, civil corrunotion, insurrection, government or defacto governmental action (unless caused by acts or omissions of the party), fires, explosions, rain or other weather delays, floods, strikes, slowdowns or work stoppages. "Franchise Agreement" shall have the meaning set forth in Section 3.6 hereof. -6- #433872b.24 "Full-Service Hotel" means mid-price, upscale or luxury hotel with a restaurant, lounge facilities and meeting space as well as minimum service levels including bell service and room service. "GMP Contract" means the guarantee maximum price contract(s) for the construction of the City Facilities and/or the Hotel and Restaurant. "Gross Revenues" means all revenues and receipts of every kind derived from operating the Hotel, Restaurant and the Convention Center, including, but not limited to: income (from both cash and credit transactions), before commissions and discounts for prompt or cash payments, from rental of rooms, stores, offices, meeting, exhibit or sales space of every kind; license, lease and concession fees and rentals (not including gross receipts of licensees, lessees, and concessionaires from their operations); income from vending machines; health club membership fees; food and beverage sales; wholesale and retail sales of inerchandise; service charges and proceeds, if any, from business interruption or other loss of income insurance. Gross Revenues shall not include (a) gratuities, including tips, paid to Hotel or Convention Center employees by third parties; (b) federal, state, and municipal excise, sales, and use taxes or similar impositions collected directly from patrons or guests or included as part of the sales price of any Hotel or Convention Center rooms, goods, or services; (c) the proceeds realized from the sale of City Facilities FF&E no longer necessary to the operation of Convention Center (which sale shall be in accordance with the City's ordinances and procurement procedures), which shall be deposited in the City AR&R Fund and the proceeds from the sale of the FF&E for the Hotel which shall be deposited into the Hotel Capital Expenditure Fund, as the case may be; (d) proceeds of any insurance other than business interruption insurance (or other insurance against loss of income); (e) condemnation awards; (� gross receipts received by lessees, licensees, or concessionaires of the Hotel and Conference Center; (g) proceeds from any financing or refinancing; (h) proceeds of any judgment or settlement not received as compensation for actual or potential loss of Gross Revenues or operating profit (i.e., Gross Revenues over Operating Expenses); (i) interest earned on the Hotel Capital Expenditure Fund, which shall be deposited therein; and (j) any funds supplied by OHPD to the Hotel Capital Expenditure Fund. "Hotel" means a Full-Service Hotel (i) constructed and operated pursuant to and in accordance with the standards of an Approved Franchise and pursuant to the terms of this Agreement and any related agreements, (ii) constructed upon the Hotel Site in accordance with the Approved Plans, and (iii) consisting of at least 9(nine) stories and containing a minimum of two-hundred seventy-five (275) guestrooms, or such other number as is agreed to by the Parties, and a restaurant, recreational amenities, adequate on-site parking, and other related amenities and space for providing the services customarily found in a full-service upscale hotel, open to the public and serving the Convention Center, adjacent business community, the iJNT community and citizens of the City. Notwithstanding anything to the contrary herein, OHPD shall have the right upon the expiration or termination of any Approved Franchise to operate the Hotel and Restaurant without a franchise so long as such facilities are kept in an Upscale Condition and in compliance with the OHPD-iJNT Land Lease. The names of any non-franchise Hotel and Restaurant shall be suggested by OHPD and approved by iINT and the City, with such approval not to be unreasonably withheld. -7- #433872d.24 "Hotel Budget" means the budget for the design, construction and FFE for the Hotel, Restaurant and related Hotel Site improvements. "Hotel Design Development Architectural Drawings" means the design of the Hotel and Restauxant that reflect approximately 35% completion more commonly known as a"Design Development" or "DD" set of architectural and engineering drawings, in order to obtain drawings and specifications necessary to obtain a"bid package" to construct the Hotel and Restaurant. "Hotel Site" means that part of the Project Site wherein the Hotel and Restaurant and related improvements shall be constructed, depicted on Exhibit "D" attached hereto. "Notice of Intent" means the notice authorized by the City Council and published in a newspaper of general circulation in the City that notifies the public that the City intends to issue certificates of obligation pursuant to Chapter 271, Texas Local Government Code, as amended, to fund the construction of the Convention Center. "OHPD-LTNT Land Lease" means the lease agreement to be executed by OHPD and LJNT, whereby OHPD will lease the Hotel Site from LTNT, which lease shall be in form and content attached hereto as Exhibit "A," as same may be modified, amended, extended or renewed from time to time upon approval by the Parties. "OHM Development Fee" means the fee paid to OHM by the City as the City's CMA for the City Facilities, as such fee is set forth in the Professional Services Agreement. "Operator" means OHM, or its Affiliate, or such other management entity as LTNT, the City, and OHPD may mutually approve. "Parties" means OHM, OHPD, UNT and the City. "Private Financing Contribution" means the private funds, raised by OHPD which, together with certain equity contributions, will equal an amount sufficient for the purpose of developing, constructing, furnishing and equipping the Hotel and Restaurant pursuant to the GMP Contract for the Hotel. OHPD's obligations hereunder are conditioned upon obtaining binding commitments from credible financing sources satisfactory to the City and UNT in their sole reasonable discretion (i.e., loan commitment) that contain no conditions to funding the Private Financing Contribution, other than the City's delivery of its City Financing Contribution pursuant to Article VI herein. "Person" means any individual, public or private corporation, limited or general partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, governmental authority or any other form of entity. "Project" means the Hotel, Restaurant and the City Facilities and related site development on the leased site. "Project and Financing Plan" means the required project plan for the TIRZ pursuant to Chapter 311, Texas Tax code, setting forth the projects and participation in the TIRZ. -8- #4338720.24 "Project Site" means the Hotel Site and the Convention Center Site, collectively. "Punch List Items" means details of construction, decoration and mechanical adjustment which, individually and in the aggregate, are minor in character and do not, either by their nature or because of the repair or completion work necessary, materially interfere with the use or enjoyment of the improvement. "Reasonable and Prudent Hotel Operator" means an operator of hotel projects similar in scope, size and complexity to the Hotel seeking to perform its contractual obligations and in so doing and in the general conduct of its undertakings exercises that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced Approved Franchisor of Comparable Hotel Properties complying with all Applicable Laws and engaged in the same type of undertaking. "Restaurant" or "Restaurant and Bar" shall mean a Houlihan's Restaurant and Bar, or another restaurant of similar or higher quality and style, that will be located on the Hotel Site as depicted on the Preliminary Site Plan (defined below). "Preliminary Site Plan" means a preliminary architectural plan, landscape architecture document, and a detailed engineering drawing of the proposed Hotel and Restaurant and/or City Facilities, including building footprints, travelways, parking, drainage facilities, sanitary sewer lines, water lines, trails, lighting, and landscaping elements for either or both the Hotel and Restaurant and/or City Facilities. "Tax Increment Reinvestment Zone" or "TIRZ" shall mean the Tax Increment Reinvestment Zone created by the City pursuant to Chapter 311, Texas Tax Code, as amended, the boundaries of which are coterminous with the Project Site. "Three Diamond Rating" means a Three Diamond Rating under the AAA Diamond Rating Process or if the AAA Diamond Rating Process is not available, a comparable rating under the successor rating process pursuant to the terms of the City-UNT Land Lease with whatever rating system used to include reasonable exceptions to or variations from such rating standards to the extent they: (a) differ from Embassy Suites standards during the existence of the Approved Franchise; or (b) would require significant alterations or additions to the structural, mechanical, electrical, electronic, operational, communications, audio visual or entertainment systems of the Hotel that exceed the Embassy Suites standards, or if Embassy Suites does not exist, the standards for Comparable Hotel Properties; provided however, that in no event shall the Hotel be operated in a manner that falls below the standard or quality of a Comparable Hotel Property. In no circumstance shall the Three Diamond Rating result in a standard with respect to the design, development, construction, furnishing, opening and operation of the Hotel which is less than what would be required of by Three Diamond Rating as it exists of the Effective Date, subject to the exceptions or variations as stated above. "Total Convention Center Costs" means all fees, expenses, and costs for any materials, labor, and services required to design, construct, and fumish the Convention Center. "Total Hotel Costs" means all fees, expenses, and costs for any materials, labor and services required to design, construct, furnish and fund the Hotel and Restaurant. � #4338720.24 "True Interest Cost" means the rate necessary to discount the amounts payable on the respective principal and interest payment dates to the purchase price received for the City's debt obligations issued to fund the City Financing Contribution. "Upscale Condition" means, with respect to the Hotel, the operation of the Hotel in a manner such that the condition of the Hotel shall demonstrate refined, high quality and fully functional appointments; furniture, fixtures and equipment; exterior and interior finishes; landscaping; and mechanical, electrical and structural components consistent with Comparable Hotel Properties, normal wear and tear excepted, that is consistent with the standards of operations and operating plans that an Approved Franchisor, acting as a Reasonable and Prudent Hotel Operator, would reasonably be expected to undertake and follow for the operation of a Comparable Hotel Property in order to obtain a Three Diamond Rating; provided, however, OHPD, as tenant, shall not be required as a result of the aforesaid covenant to (a) provide amenities or facilities that are impracticable as a result of the Hotel Final Design, (b) undertake any actions prohibited by the OHPD-LJNT Land Lease, (c) actually obtain a Three Diamond Rating for the Hotel. LJNT and the City shall have the right to inspect the Hotel on an annual basis to determine compliance with the operation of the Hotel in an Upscale Condition. Reasonable exceptions to this standard of Upscale Condition may be agreed to by the Parties and the Parties may agree to commission an independent experienced hotel industry consultant to assist in their evaluation and/or to identify necessary repairs or replacements necessary to bring such facilities to the property condition consistent with an Upscale Condition. "Upscale Manner" means the process of developing, designing, constructing and maintaining the Hotel as required so that it will exist in an Upscale Condition. :1�:71 Y Cil71�1'I ,.� � . 2.1 Summarv of Pro�ect nevelopment. Subject to the terms and conditions of this Agreement and of the other instruments and agreements to be entered into pursuant to this Agreement, the City and OHPD shall cause the Project to be developed and constructed as follows: 2.2 Pro_iect Overview. 2.2.1 City Facilities. The City shall commit the City Financing Contribution for development, in the manner provided in this Agreement for the City Facilities: The City Facilities shall be constructed of a quality comparable to and compatible with the standards of quality and efficiency found in the Hotel, and otherwise in accordance with designs, plans and specifications approved by the City, LTNT, and OHPD, as provided herein, and in accordance with all applicable building codes and other ordinances and laws, and all requirements of the City. The City Facilities are public facilities and must be open to the public as required by state and federal law. -10- #4338720.24 2.2.2 Hotel. OHPD must obtain and expend the Private Financing Contribution for development on behalf of OHPD, in the manner provided in this Agreement, of the Hotel and Restaurant, and appropriate support facilities such as a restaurant(s), a lounge(s) or bar(s), supporting back-of-the-house areas, food preparation facilities, a swimming pool, spa, and fitness center, together with such other amenities and features characteristic of a full-service hotel, to be operated pursuant to the Franchise Agreement or otherwise in an Upscale Manner. The Hotel shall be constructed of a quality comparable to and compatible with the standards of quality and efficiency found in the Convention Center as an adjacent, but operationally independent, facility to the Hotel, subject to the approved Hotel Budget and otherwise in accordance with designs, plans and specifications approved by OHPD, the City and UNT, and in accordance with all Applicable Laws. 2.3 Proiect Phases. The Parties shall undertake the design, planning, development and construction of the Project and shall perform their various obligations as outlined in this Agreement in accordance with the following schedule of phases: 2.3.1 Design Development Phase. During the Design Development Phase, the City and OHPD shall prepare the Convention Center Design Development Architectural Drawings and iINT and OHPD shall prepare the Hotel Design Development Architectural Drawings for the Convention Center and Hotel, respectively, sufficiently complete and detailed so as to obtain guaranteed maximum price proposals or best-valued responses from qualified contractors, all as set forth in Article III below. Upon obtaining a guaranteed maximum price proposal from the Convention Center Design Development Architectural Drawings and the Hotel Design Development Architectural Drawings and entering into a GMP contract, and once the Feasibility Deadline and Financing Viability Deadline have expired, OHPD and the City shall proceed with Closing of their respective financings as set forth in Article V and pursuant to Article V, OHPD and the City shall then complete the Final Design and Final Hotel Design as well as prepare, negotiate and finalize the form of the various documentation necessary for the, development, construction, completion and ongoing occupancy, use, operation, maintenance and repair of the Project, as set forth in Article III below. 2.3.2 Construction Phase. Following the Closing and on or before the Construction Deadline, OHPD shall complete any necessary modifications to the final construction plans and specifications for the Hotel and Restaurant and any resulting modifications to the GMP contracts, as approved by the City and L7NT, each that conform to all Applicable Law. OHPD and OHM shall obtain applicable building perrnits from the City, and shall commence construction of the Project in accordance therewith. During construction, OHPD, with respect to the Hotel and Restaurant, and OHM, with respect to the Convention Center, shall coordinate and oversee all aspects of the development and construction of the Project in conjunction with LJNT and the City, all in accordance with Article IV, and assist the City with services with respect to FF&E for the Project as set forth in Article VI. OHM shall follow the City's Contractor Payment Guidelines set forth in Exhibit "G" with respect to the City Facilities. 2.3.3 Pre and Post Construction Operation of the City Facilities. Prior to Completion of Construction of the City Facilities and their sub-lease to OHPD pursuant to the City Facilities Sublease, OHPD shall engage Operator to oversee the pre-opening operations -11- � preparation, hiring, sales and marketing efforts and upon the Completion of Construction, the use, operation, management, maintenance and repair of the Hotel and the City Facilities pursuant and subject to the OHPD-LTNT Land Lease and the City Facilities Sublease, respectively, and subject to the Approved Franchise. 2.4 Term. This Agreement shall commence on the Effective Date and shall continue for the term of the City-OHPD Convention Center Sublease. .• 1` 1 1' 3.1 OHPD Services- Hotel. OHPD shall initiate design of the Hotel and Restaurant. OHPD shall produce, with assistance from subcontractors including architects and engineers, Hotel Design Development Architectural Drawings acceptable to the City and iJNT. OHPD shall produce Hotel Design Development Architectural Drawings acceptable to LTNT and the City, with such acceptance not to be unreasonably withheld; provided, the design conforms with reasonable standards. The City and LTNT will appoint designated representatives that will have substantial day to day involvement with OHM in the development of the Hotel Design Development Architectural Drawings. OHPD shall solicit bids based upon the Hotel Design Development Architectural Drawings in order to obtain a guaranteed maximum price ("GMP") bids and shall execute a GMP contract for the construction of the Hotel and Restaurant contingent on the City and OHPD obtaining appropriate financing for the Project as set forth in Article V. It is anticipated that the architect for the Hotel and Restaurant will be the same as for the Convention Center Facilities. If the architect and engineers selected by OHPD to conduct the Hotel Design Development Architectural Drawings is not the same as selected by the City's process in 3.3 below, or is not a full-time employee of OHPD, OHPD, subject to LTNT's and the City's approval, shall select the architect and engineers on the basis of demonstrated competence and qualifications. The costs of the Hotel Design Development Architectural Drawings shall be paid as set forth in Section 5.1.2 herein. 3.1.1 OHPD shall select a general contractor for the Hotel and Restaurant based on the Hotel Design Development Architectural Drawings and GMP contract for the Hotel construction, subject to City and UNT approval, not to be unreasonably withheld. OHPD shall pay all costs relating to the selection and hiring of a general contractor. It is anticipated that the same general contractor shall be selected for the Hotel and Restaurant and the Convention Center Facilities pursuant to Section 3.3.1 below. As such, OHPD shall ensure that the work for the Hotel and Restaurant is separate and apart from the work for the Convention Center Facilities and that no City Financing Contribution shall go to pay for the work on the Hotel and Restaurant. 3.1.2 Prior to the Feasibility Deadline, OHPD shall obtain a letter of commitment or other evidence acceptable to the Parties from the Hotel Franchisor indicating its commitment to enter into an Approved Franchise at or prior to Closing, subject to satisfaction of the Hotel Franchisor's criteria and conditions. 3.2 Agency of OHM for the Cit_y. OHM will act as the City's "Construction Manager - Agent" ("CMA"), pursuant to the terms of Chapter 2269 of the Texas Local Government Code (the "Code"), and specifically Subchapter E, sections 2269.201 through -12- #4338720.24 2269.208, for the construction of the Convention Center, and said parties shall execute the "Professional Services Agreement - CMA" which is attached hereto as Exhibit "E," and incorporated herein by reference. Pursuant to the same code provisions set forth above, and also subsequent to and contingent upon the approval of this Agreement by the City Council the City will hire OHM to act as its Architect for the development of the Convention Center Site and Convention Center, and said parties shall execute the "Professional Services Agreement - Architect" attached hereto as Exhibit "F" and incorporated herein by reference. The City and OHM agree to abide by all aspects of the Code sections referred to above, this Agreement, Exhibit "F" and all Applicable Law. The Professional Services Agreement shall be subject to and provide for the City's 5% retainage of fees, as set forth therein. The City and UNT shall approve any architectural services provided by third-party contractors. The only fee paid to OHM for its services for the City Facilities shall be the OHM Development Fee received by OHM as the City's CMA, the City's agent, for the City Facilities. The City acknowledges that all costs to construct the City Facilities, including soft costs, shall be funded by the City from the City Financing Contribution, and such costs shall include fees from third parties not employed by OHM in addition to the OHM Development Fee. OHM shall, as the City's agent, assist the City in obtaining a GMP contract for the construction of the City Facilities. If the engineer or architect is not a full-time employee of OHM, OHM, subject to LJNT's and the City's approval, shall assist the City in the selection of the engineer or architect on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. The method of selecting a general contractor for construction must comply with Chapter 252 and Chapter 271, Texas Local Government Code 3.3 OHM Services — City Facilities. OHM shall coordinate with the City to produce the Convention Center Design Development Architectural Drawings. The City and UNT will appoint designated representatives that will have substantial day to day involvement with OHM in the development of the Convention Center Development Architectural Drawings. The Convention Center Design Development Architectural Drawings shall be used by the City, with assistance from OHM, to solicit GMP proposals and a GMP contract for the construction of the City Facilities pursuant to Section 3.3.1 below. The costs of the Convention Center Design Development Architectural Drawings shall be paid as set forth in Section 5.1.1 herein. 3.3.1 Citv Facilities — Convention Center Desi�n Develonment Architectural Drawings. OHM shall provide or cause to be provided, in conjunction with the City and LTNT, the following services to the City during the Design Development Phase with respect to the Convention Center Design Development Architectural Drawings: (a) Preparation of schematic design concepts and drawings and specification for the Project in accordance with design criteria approved by LTNT and the City and their consultants and design professionals; (b) Preparation of a development and construction schedule and projected opening date for the Project; (c) Preparation of the preliminary Convention Center Budget and preliminary Hotel Budget, which shall include any improvements necessary for development of the Project. OHPD shall pay the costs attributable to the Hotel -13- #4338720.24 and Restaurant as a part of its Private Financing Contribution and the City shall pay the costs attributable to the Convention Center, as a part of its City Financirig Contribution; (d) Provide general descriptions of the categories of the FF&E, operating supplies, fixed asset supplies and the like anticipated to be required for the City Facilities for approval by the City and its consultants, and OHM; (e) Preparation of a recommended listing of and qualifications for proposed general contractors for the Hotel and Restaurant and the City Facilities for approval by the City (those potential contractors ultimately approved by the City being referred to herein as the "City of Denton Contractor Contact List"). The City, LJNT, OHM and OHPD shall work together to develop criteria for the selection of a general contractor, but final selection of the general contractor shall be at the discretion of the City. The City of Denton shall communicate the solicitation for the general contractor as required by Texas statutes; (� Preparing a proposal package in compliance with state law regarding such design development plans and specifications and soliciting responses from the City of Denton Contractor Contact List, notification in the local newspaper, and notification to Historically Underutilized Businesses as required by Texas Government Code, Chapter 252, as amended; (g) After approval of the Convention Center Design Development Architectural Drawings by all parties, OHM shall submit such Convention Center Design Development Architectural Drawings to the City to administer the procurement process for the Convention Center construction and shall submit listings for the City of Denton Contractor Contact List. The City shall administer such procurement process pursuant to applicable law and the process set forth in Exhibit "F" hereto. The City shall issue a solicitation, receive, evaluate, value engineer (if necessary) and proceed to negotiate final contractual terms, with the assistance of OHM, for the City Facilities. In a separate procurement process, OHM shall administer the procurement process for the Hotel and Restaurant, in compliance with Applicable Law. During this process all parties will be involved in all steps of the process and shall provide input and suggestions as to all matters pertaining to the process. The City of Denton shall perform the administrative process of collecting all responses submitted to the solicitation, in accordance with the statutory provisions of Texas Local Government Code Chapters 252, 271 and 2269, as amended. OHM may provide assistance to the City of Denton in the evaluation process, provided that OHM shall assist the City in selecting a general contractor for the City Facilities (the "General Contractor") in accordance with the provisions of Texas Local Government Code, Chapters 252, 271 and Texas Government Code 2269, as amended. Any General Contractor selected by the City shall comply with the City's requirements for payment and performance bonds and the Contractor Payment Guidelines set forth in Exhibit "G" and shall be subject to the City 5% retainage of fees; and -14- #4338720.24 (h) Upon the completion and approval of the Convention Center Design Development Architectural Drawings, OHM shall assist the City with the process of negotiating, reviewing, evaluating and finalizing the GMP contracts with the General Contractor whose response is ultimately selected for approval by the City, it being understood that it is anticipated that there shall be separate construction contracts for the Hotel on the one hand, and for the City Facilities on the other hand, but that all subcontractors shall (whenever possible) propose on a single, combined basis for the Hotel and for the City Facilities. The City shall retain the General Contractor pursuant to a GMP contract for the construction of the Convention Center Facilities to be entered into by the City prior to the Feasibility Deadline and Financing Viability Deadline. However, such GMP contract for the construction of the City Facilities shall be subject to, payable from and contingent upon the City Closing in Section 5.1.7. OHPD shall retain the General Contractor pursuant to a GMP contract for the construction of the Hotel and Restaurant. The City agrees to retain the General Contractor pursuant to a GMP contract entered into under a method provided by Chapter 271, Subchapter H, Texas Local Government Code, or Chapter 2257, Texas Government Code, for the construction of the City Facilities, and OHM shall assist the City in administration of such contract on the City's behalf as development manager for the City during the construction phase of the general contract. The contracts with the General Contractor shall require the General Contractor to provide payment and performance bonds in accordance with general Texas law applicable to municipalities and shall provide for a 5% retainage to the City and shall comply with the Contractor Payment Guidelines set forth in Exhibit "G." 3.3.2 Proiect Feasibility. (a) Prior to the Feasibility Deadline, OHM shall submit to the City and iJNT, for their approval, the Convention Center Design Development Architectural Drawings and the Hotel Design Development Architectural Drawings including the preliminary Convention Center Budget and the preliminary Hotel Budget. The City and iJNT shall: (1) approve the Convention Center Design Development Architectural Drawings and preliminary Convention Center Budget, and the Hotel Design Development Architectural Drawings and preliminary Hotel Budget; (2) reject the Convention Center Design Development Architectural Drawings and preliminary Convention Center Budget, and the Hotel Design Development Architectural Drawings and preliminary Hotel Budget; or (3) conditionally approve of the Convention Center Design Development Architectural Drawings and preliminary Convention Center Budget, and the Hotel Design Development Architectural Drawings and preliminary Hotel Budget with requested changes to such Convention Center Design Development Architectural Drawings and Hotel Design Development Architectural Drawings and to the preliminary budgets for the City Facilities and Hotel and Restaurant to be provided within thirty (30) days of receipt thereof. If neither approval, rejection nor comments or changes to such Convention Center Design Development Architectural Drawings or Hotel Design Development Architectural Drawings or the respective preliminary budgets have been received from City or LJNT by OHM and/or OHPD within such thirty (30) day period, then such Convention Center Design Development Architectural Drawings and Hotel Design Development Architectural Drawings shall be deemed approved by the City and iJNT. Should OHM and OHPD receive any comments or changes -15- #4338720.24 pursuant to this process, they shall work diligently with iJNT and the City to address such changes and incorporate them into the design documents if reasonably feasible, and shall complete such revisions within ten (10) days of receive thereof. Any Party may request from the other Parties an extension of the time periods set forth in the Section, which consent shall not be unreasonably withheld but in no event shall exceed ninety (90) days. (b) Upon approval of the Convention Center Design Development Architectural Drawings and preliminary Convention Center Budget and the Hotel Design Development Architectural Drawings and preliminary Hotel Budget or upon receipt by OHM of comments or changes by the City to the Convention Center Design Development Architectural Drawings and preliminary Convention Center Budget and any changes by UNT to the Hotel Design Development Architectural Drawings and preliminary Hotel Budget, if any, as well as the expiration of the ten (10) day period set forth in (a) above, the City shall proceed with obtaining a GMP contract pursuant to section 3.3.1 herein. After execution of the GMP contracts for the City Facilities and Hotel and Restaurant, OHM shall, within twenty (20) days or less, provide OHPD, the City and LJNT with the final Convention Center Budget and the final Hotel Budget and the Parties shall make a determination within thirty (30) days of receipt of the final budgets, unless a different time period is agreed to by the Parties, but in any event, prior to the expiration of the Feasibility Deadline, as to whether they believe the Project is feasible. If, based on the Convention Center Design Development Architectural Drawings, the budgets and the GMP contracts for the City Facilities and Hotel Design Development Architectural Drawings (incorporating the comments and changes of the City to the Convention Center Budget and any comment and changes of LTNT to the Hotel Budget pursuant to (a) above), the City, iJNT or OHM determines that the Project is not feasible, then any Party making such a determination shall notify the other Parties in writing, and the obligations to proceed with the Project pursuant to this Agreement shall terminate. (c) Notwithstanding the determination of feasibility in (b) above, if the Private Financing Contribution is not in place pursuant to 5.1.3 herein, or the Approved Franchise requirement of 3.1.2 has not been met, this Agreement shall terminate pursuant to Article XI herein. 3.3.3 Financing Viability. On or immediately before the Financing Viability Deadline, unless another date is agreed upon by the Parties, the City shall notify OHPD of the current market conditions for the issuance of the City's debt to fund the City Financing Contribution, including current interest rates and the estimated debt service schedule. If the projected True Interest Cost of the City's obligations, as calculated by the City's financial advisor (which calculations shall be provided to OHM and OHPD), is in excess of 6.00%, then the City or OHPD may terminate this Agreement pursuant to Article XI herein, and all obligations to proceed with the Project pursuant to this Agreement shall terminate. 3.3.4 Citv Facilities — Final Design. After the expiration of the Feasibility Deadline and the Financing Feasibility Deadline, and upon the election of all Parties to proceed with the Project and upon availability of the City Financing Contribution, OHM shall provide the following services to the City during the Design Development Phase to reach the final design, specifications and Final Site Plan for the City Facilities (the "Final Design"). Costs of the Final Design shall be paid from the proceeds of the City Financing Contribution available at Closing. -16- #4338720.24 (a) On or before the Development Deadline OHM shall deliver to the City and LJNT, the Final Design, Final Hotel Design (as defined below), the revised Convention Center Budget and revised Hotel Budget for the Project, based upon the GMP contracts for the Convention Center and the Hotel, and the "Final Construction Drawings" for the entirety of the Project and ancillary improvements, which are based on the Final Design and Final Hotel Design, and any additional revisions thereto. The construction evidenced by the Final Site Plan and Final Construction Drawings, and the Final Design and Final Hotel Design, as well as the Final Construction Drawings themselves must comply with all Applicable Laws. The City and UNT shall have a maximum of thirty (30) days within which to review such documents and deliver any objections and/or required revisions to OHM. Upon receipt of such objections and/or required revisions, OHM shall, within ten (10) days thereafter, cause the Final Construction Drawings, Final Design, the Final Hotel Design and the revised budgets to be revised and resubmit same to the City for review and approval. If changes requested by the City or LJNT are substantial, the Parties may agree on the date for delivery of such revised documents. For purposes hereof, the "Final Design and Final Hotel Design" means design documents for the Convention Center, Hotel, Restaurant and ancillary improvements consisting of architectural drawings and other documents illustrating the style and relationship of the components of the improvements, including, the exterior and interior of the Hotel, Convention Center and Project that are required by Applicable Law sufficient to secure a Building Permit. (b) OHM shall work with the City and its consultants to enhance compatibility of the final architectural drawings for the City Facilities with other elements such as interior design, front desk design, kitchen and laundry facilities and the like; (c) OHM shall consult and work with the City in the selection and designation of names of ballrooms, suites, and rooms within the Convention Center; (d) OHM shall prepare a final development schedule for the City Facilities, in conjunction with the development schedule for the Hotel; (e) Wherever the terms of this Agreement call for or reference, City's and LTNT's approval of any architectural or other drawings and/or specifications relating to construction of the Project or any component thereof, it is expressly agreed that City's and LTNT's approval of such drawings and/or specifications will constitute City's and iJNT's approval of the general design and layout scheme described in such drawings and/or specifications only and will not, however, make City or L1NT responsible in any way for the technical adequacy of such drawings or for any liabilities arising out of any construction undertaken in accordance therewith. -17- #4338720.24 (� OHM shall obtain, for itself and on behalf and with the cooperation and assistance of L1NT and the City, all building, development and other perrnits necessary to commence construction of the Project; 3.3.5 Hotel and Restaurant — Final Hotel Design. On or before the Development Deadline, OHPD shall complete the final design, specifications and Final Site Plan for the Hotel and Restaurant (the "Final Hotel Design") and construction of the Hotel and Restaurant shall occur simultaneously with the City Facilities and shall attempt, without guaranteeing, to complete construction of the Hotel on approximately the same day the City Facilities are completed. OHM shall work with LTNT and its consultants to enhance compatibility of the final architectural drawings for the Hotel and Restaurant with other elements such as interior design, front desk design, kitchen and laundry facilities and the like and OHM shall consult and work with LTNT in the selection and designation of names of suites, and meeting/conference rooms within the Hotel. The costs of the Final Hotel Design shall be paid from the Private Financing Contribution. During the final design process of the Design Development Phase and prior to commencement of construction of the Hotel, OHPD shall provide LTNT and the City the documents listed below as well as any other documents reasonably required, and where necessary shall make the requisite filings of such documents with appropriate officials: (a) Two copies each of the Final Hotel Design for the Hotel and Restaurant, which OHPD will submit to the City and LTNT in accordance with Section 3.3.4; (b) A certificate of insurance evidencing that all insurance required hereunder with respect to the Project has been procured; (c) The final Hotel Budget; (d) Preliminary operating projections for the Hotel, Restaurant and the City Facilities; (e) A development schedule for the Hotel and Restaurant, and a development schedule for the City Facilities; (� An executed copy of the Approved Franchise which shall have been obtained prior to the Feasibility Deadline pursuant to 3.1.2 herein; and (g) Such other documentation, including plans and specifications, schematic drawings and renderings of the Hotel and Restaurant, as may reasonably be requested by the City or LTNT to ensure the orderly development of the Project. 3.4 Proiect Agreements. During the Design Development Phase, LTNT, the City, OHM and the Operator (with respect to the Approved Franchise) shall diligently and in good faith negotiate mutually acceptable final forms of the following agreements to be entered into at the Closing. In the event of discrepancies between this Agreement and the final agreements listed below in sections 3.4.1 through 3.4.3, the terms of each individual agreement shall control: -18- #4338720.24 3.4.1 Hotel Lease. The OHPD-iJNT Land Lease, containing the following minimum terms: (a) primary term of fifty (50) years, with renewal options of ten (10) and ten (10) years, respectively, with rent in the amount of $1.00 per annum for the first three (3) years after opening of the Hotel, then rent in the amount of one and a half percent (1.5%) of the Gross Revenue of the Project, as adjusted by the amount of Base Rent reductions set forth in the OHPD-LTNT Land Lease, through Lease Year 25. (b) provisions relating to OHPD and UNT's agreements relating to the College of Hospitality working in concert to further their respective aims with respect to the integration of L1NT students into the Hotel operating process. (c) OHPD shall have a right of first refusal to purchase the Hotel Site if sold by LJNT. (d) OHPD shall establish an asset replacement and renewal reserve account for capital expenditures in connection with the operation and maintenance of the Hotel and Restaurant and for repairs and replacements by OHM of all portions of the Hotel and Restaurant that are subject to deterioration, including the Hotel and Restaurant FF&E and other relevant items, in the for the Hotel and Restaurant (the "Hotel Capital Expenditure Fund"). OHPD shall annually contribute to the Hotel Capital Expenditure Fund, an aggregate amount equal to two percent (2%) of such Gross Revenues. Funds in the Hotel Capital Expenditure Fund shall only be used for capital expenditures for the Hotel. OHPD shall annually provide iJNT with a five (5) year budget for the Hotel Capital Expenditure Fund which shall be subject to approval by UNT, which approval shall not be unreasonably withheld. In addition, OHPD shall provide LJNT with thirty (30) days prior notice of expenditures from the Hotel Capital Expenditure Fund. If OHPD makes expenditures from the Hotel Capital Expenditure Fund in excess of the approved budgeted amounts, OHPD shall provide LTNT, as a part of its 30-day notice, documentation and explanations regarding the expenditures. LJNT shall have the right to annually review the expenditure of the Hotel Capital Expenditure Fund to ensure budgeted funds have been expended to keep the Hotel in an Upscale Manner. The Parties acknowledge that the City shall have no control over the funds in the Hotel Capital Expenditure Fund or the expenditures made with such funds. (e) The form of the OHPD-LTNT Land Lease attached hereto as Exhibit "C" is hereby approved with such changes and modifications as may be agreed to by LTNT and OHPD. The Parties acknowledge that the Project cannot proceed without an equity source or lender for OHPD and that such parties will likely have comments on the form of the OHPD-iJNT Land Lease and accordingly, LJNT agrees to give reasonable consideration to changes in the OHPD-UNT Land Lease that may be requested by the equity source or lender for OHPD's Private Financing Commitment. If LTNT and OHPD fail to mutually -19- #4338720.24 agree upon the final form of the OHPD-LJNT Land Lease by Closing then either OHPD or UNT can terminate this Agreement upon written notice. 3.4.2 Citv-UNT Land Lease. The City-UNT Land Lease, containing the following minimum terms: (a) a primary term of fifty (50) years, with renewal options of ten (10) and ten (10) years, respectively, for a rent equal to $1.00 per year during the Phase that the City's debt financing for the Convention Center is outstanding, and $175,000 per year beginning in year 26, and continuing for a period of ten years. Beginning in year 37, rent shall in�rease in the amount of 1.7% each year until termination of the City-LJNT Land Lease. (b) at the end of its primary term and of any option Phases extending the term of the City-iJNT Land Lease, iJNT shall receive possession of the City Facilities; and (c) if at any time, LJNT shall desire to sell the Convention Center Site, the City shall have the right of first refusal to purchase such site pursuant to the terms set forth in the OHPD-LTNT Land Lease and subject to the City Facilities Sublease. (d) If the City does not exercise its right of first refusal pursuant to (c) above, OHPD shall then have the right of first refusal to purchase such site pursuant to reasonable terms substantially similar to those terms offered to the City by iJNT; provided, that should OHPD exercise such right of first refusal, no modifications of the rights or roles of either OHPD or the City or any modification of this Agreement or the City-OHPD Convention Center Sublease shall occur without the mutual written agreement of the parties. (e) The form of the City-L7NT land lease attached hereto as Exhibit "A" is hereby approved in substantially the form attached hereto, with such modifications as may be approved by the City Manager and City Attorney. 3.4.3 City Facilities Sublease. The City Facilities Sublease between the City and OHPD, containing the following minimum terms: (a) a primary term of fifty (50) years, with options of renewal for ten (10) and ten (10) years, respectively, with fixed rent equal to the amount set forth in the City-OHPD Convention Center Sublease in each year for the Period of time the City's debt is outstanding and thereafter $1.00 per year during the primary term, and $1.00 per year during each option Phase; (b) an obligation of OHPD to operate and maintain the City Facilities in keeping with Comparable Convention Centers for the term of the City Facilities Sublease; -20- #4338720.24 (c) an express requirement that OHPD shall take the property on an "as is" basis and that the City Facilities Sublease shall be a"triple-net lease," and shall clearly and unequivocally state that the Ciiy shall have no obligation or responsibility, financial or otherwise, to operate or maintain the City Facilities during the term of the City Facilities Sublease (unless otherwise specified herein); (d) the creation of an asset replacement and renewal reserve account for capital replacement expenditures in connection with the operation of the City Facilities and for capital repairs and replacements of all portions of the City Facilities that are subject to deterioration, in the City Facilit'ies AR&R Fund (the "City AR&R Fund") to be used solely to pay for such capital replacements, expenditures and repairs and replacements. The City AR&R Fund shall be segregated and maintained separately from the Hotel Capital Expenditure Fund and shall be funded in part by the City as set forth in the (e) below; (e) each year from lawfully available funds, the City shall deposit an amount to the City AR&R Fund. Such amount shall be determined by the City on an annual basis during its budget process, shall be subject to annual appropriation and shall be based upon capital expenditures needed for maintenance of the Convention Center in a sufficient amount to reasonably keep the City Facilities to the standard of Comparable Convention Centers as set forth in the City Facilities Sublease; (� the City AR&R Fund shall be controlled by the City and such funds shall be limited to appropriate expenditures as included in the annual capital budgets for the City Facilities approved by the City in accordance with the City Facilities Sublease or as required in an emergency, or otherwise with the approval of the City. The City may utilize the City AR&R Fund for such purposes in the event of a failure by OHPD to perform such capital expenditures or repairs and replacements; (g) a clear list of events of default by OHPD and specific remedies for such defaults including self-help remedies with reimbursement and for the hiring of a third party management consultant to mediate disputes as to whether the City Facilities are being operated and maintained in the manner provided in the City Facilities Sublease; (h) a provision providing the City with the right to audit OHM andlor OHPD to determine whether or not the City AR&R Fund obligations contemplated under the City Facilities Sub-Lease have been properly conducted or honored; (i) an obligation by OHPD to maintain the Approved Franchise, and to maintain and operate the Hotel in an Upscale Manner (regardless of whether a franchise is maintained with respect to the Hotel), and cross default provisions for defaults under the Hotel Loan Agreement and the Approved Franchise. After the expiration of the Approved Franchise according to its terms, and in the event there -21- #4338720.24 is no renewal of the Approved Franchise or a replacement Approved Franchisor pursuant to the City-LJNT Convention Center Sublease, OHPD shall continue to operate the Hotel in an Upscale Manner throughout the term of the City-OHPD Convention Center Sublease; (j) provisions as reasonably required by the Hotel Lender providing that the Hotel Lender shall be given a concurrent copy of any notice of default by OHPD under the City Facilities Sublease, and the right to cure any such default in the place and stead of OHPD, and a reasonable time as may be required by the Hotel Lender to effect such cure and enforce its rights under the Hotel Loan Agreement and related documents, provided the Franchise Agreement, or a substitute franchise agreement with an approved Hotel Franchisor remains in full force and effect during the Period of such cure; (k) a requirement that OHPD shall pay Base Rent to the City; (1) The commencement of the Sublease to be on the date set forth in the Sublease, and to be effective upon the Closing of the City's Financing Contribution and the Private Financing Contribution; and (rn) an obligation of OHPD to comply with all requirements of the City-LJNT Land Lease. (n) The form of the City Facilities Sublease attached hereto as Exhibit "B" is hereby approved in substantially the form attached hereto, with such changes and modifications as may be agreed to by the City Manager and City Attorney. The Parties acknowledge that the Project cannot proceed without an equity source or lender for OHPD and that such parties will likely have comments on the form of the City Facilities Sublease and accordingly, the City agrees to give reasonable consideration to changes in the City Facilities Sublease that may be requested by the equity source or lender for OHPD's Private Financing Commitment, as may be approved by the City Manager and City Attorney. If the City and OHPD fail to mutually agree upon the final form of the City Facilities Sublease by Closing, then either OHPD or the City can terminate this Agreement upon written notice. 3.5 Reciprocal Access Agreement. One or rnore access, easement and use agreements, in recordable forrn, between the City, OHPD and LTNT, providing for the shaxed use of and access to the Hotel and the City Facilities, and creating mutual reciprocal easements therefor, which shall be considered covenants running with the land and which shall benefit and bind title to the Hotel and the City Facilities (the "Reciprocal Access Agreement"). The Parties shall mutually agree on such access agreements and such agreements shall be consistent with the Preliminary Site Plan. 3.6 Hotel Franchise Agreement. OHPD shall have obtained an Approved Franchise with an Approved Franchisor. The Approved Franchise shall state that OHPD shall maintain the Hotel in an Upscale Manner to the standards required of the Approved Franchisor and shall -22- #4338720.24 provide for a furniture, fixture and equipment reserve fund on the Approved Franchisor's standard terms, subject to approval by UNT and the City. After the expiration of the term of the Approved Franchise or any replacement Approved Franchise, OHPD shall have the right to operate the Hotel and Restaurant without a franchise, subject to approval by iJNT and the City, such approval not to be unreasonably withheld. During the term of the Approved Franchise if the Approved Franchise is terminated pursuant to its terms, OHPD shall be required to obtain a replacement Approved Franchisor until the end of the term of the initial Approved Franchise. 3.7 Cooperation. OHPD and City shall cause OHM, and its architects and engineers, or any other agents, architects or design professionals, to design complementary structures, landscaping, and related amenities (such as parking), it being understood that the Convention Center and the Hotel (including the Restaurant) will be separate but connected buildings (with separate facilities, such as mechanical, electrical and plumbing systems, necessary for the operation of each), but connected by one or more interior hallways to give the appearance and function of an integrated building. 3.8 Consultation. OHM and OHPD shall consult with designated representatives of the City and L7NT in connection with the design of the Hotel, Restaurant and Convention Center and make available to such representatives copies of the plans and specifications for the Hotel and Convention Center upon the request of the City. 3.9 Requirements. All improvements constructed as part of the Project must: 3.9.1 be designed with an architectural style and materials appropriate to the Denton, Texas, University of North Texas setting of the Project; 3.9.2 be built and operated in accordance with applicable environmental standards under federal, state, and local laws and ordinances (the "Environmental Standards"); � 3.9.3 be constructed in accordance with LEED (Leadership in Energy and Environmental Design) practices and procedures; and 3.9.4 comply with all Applicable Law. 3.10 Control of the Convention Center Site. The City and LTNT shall execute the City-UNT Land Lease and the City and OHPD shall execute the City-OHPD Convention Center Sublease whereby the City will transfer its rights relating to the Convention Center Site to OHPD pursuant to the terms and conditions thereof. 3.11 Tax Increment Reinvestment Zone. During the Design Development Phase, the City, subject to the discretion of the City Council, shall begin the process of creating the TIRZ. The City agrees that the creation of the TIRZ is appropriate and shall diligently pursue the creation of the TIRZ with the designated project of the TIRZ Project and Financing Plan being the construction of the Convention Center Facilities only. No TIRZ revenues shall be expended on the construction or operation of the Hotel. The City shall, prior to the expiration of the Feasibility Deadline, give notice to OHPD of the intent of other taxing jurisdictions within the TTRZ to participate in the TIRZ and their associated levels of participation. -23- #4338720.24 3.12 Budget Adiustments. 3.12.1 After execution of the GMP contracts has occurred, and throughout the design and construction of the Project, OHM shall, on a timely basis, communicate budget changes to the City and iJNT and submit to the City and to iJNT all changes to the Convention Center Budget for the Total Convention Center Costs and all changes to the Hotel Budget for the Total Hotel Costs for the Hotel and Restaurant. The City and iJNT shall review such budget changes and shall submit additional revisions to such budgets or approve such budgets within twenty (20) days. No expenditures pursuant to such budget revisions shall be made until the City and LTNT have approved such budget changes and expenditures; provided, however that the City's Financing Contribution shall be adjusted but it shall never exceed more than $25,000,000 (total, including design and construction costs). 3.12.2 All budget changes for the Hotel and Restaurant that exceed the GMP Contract for the Hotel and Restaurant shall be paid by OHPD. Any increases in the Hotel Budget that are incurred prior to Closing shall be considered in the calculation of the Private Financing Contribution and shall be available at closing. Any increases in the Hotel Budget that are incurred after Closing shall not be approved until OHPD provides assurances satisfactory to the City and UNT that OHPD will provide funds to pay for the increased costs. ,. 1' '' 1 4.1 Agencv bv OHM for OHPD. OHM shall at all times act as agent for OHPD pursuant to a Development Agreement and Management Agreement executed by the OHPD and OHM. OHM and OHPD will be responsible for all design, construction and operations of the Hotel. 4.2 Construction Permits. No later than the Commencement of the Construction Phase, OHM shall submit and obtain approval of applications for building, plumbing, electrical, mechanical and other construction permits for the Project in accordance with applicable provisions of the Applicable Law. The City will be the code review authority for the construction of the Hotel, Restaurant and Convention Center. 4.3 Pavment and 1��:��`��•r��r��ce Bonds, OHM shall obtain all payment and performance bonds required by the City under Applicable Law. 4.4 Hotel and Restaurant Construction. 4.4.1 Hotel. During construction of the Hotel, OHPD agrees to the following conditions and instructions: (a) To construct or cause to be constructed the Hotel in conformance with the final plans and specifications approved by LTNT and the City and in accordance with any and all rights of review or approval of the Hotel Franchisor and the Hotel Lender, and in accordance with all Applicable Laws, including the payment of all Development Fees to the City; -24- #4338720.24 (b) To be fully responsible for causing the Hotel to be constructed, to pay all development costs of the Hotel as they come due, and under no circumstances require the City or LJNT to pay for any labor, materials, or other costs ordered, purchased, or incurred by OHPD or others in and about the construction of the Hotel; (c) To cause all electric and telephone utility lines and equipment for the Property to be placed under ground within public rights-of-way or utility easements located within the Property lines; (d) To apply for or cause to be applied for the balance of the utility permits, utility easements, certificates of occupancy and all other licenses and permits required for the operation of the Hotel, including an alcoholic beverage permit, with such alcoholic beverage permit to possibly be delayed by six (6) months or more after opening of the Hotel and Restaurant; and (e) To pay for the hard surface portion of the landscaping at the Hotel Site, such as stone, concrete, brick or other approved surfaces, and the irrigation systems for the Hotel. The Parties also agree that the landscape plan is subject to Applicable Law and to the approval of LTNT, the City and OHPD and is subject to such modifications and variances, as may be agreed upon by the Parties. 4.5 Construction Phase. OHM will cause to be prepaxed final construction plans and specifications for the City Facilities for the approval of the City and LJNT. OHPD will cause to be prepaxed final construction plans and specifications for the Hotel and Restaurant for the approval of LTNT. OHPD (with respect to the Hotel and Restaurant) and OHM (with respect to the City Facilities) shall cause Commencement of Construction of the Project to commence promptly upon receiving a notice to proceed from the City and iJNT, and will expeditiously pursue Completion of Construction with completion of the construction to be not later than twenty (20) months following commencement of construction, subject to City delay and Force Maj eure, and any extension pursuant to 6.8 herein. OHPD and OHM estimate construction to take approximately 18 months. OHPD and OHM shall consult with the City and LJNT regarding any proposed changes and modifications to the final drawings and specifications of the Project which may result in a material change in the design or character of the City Facilities or the Hotel or increase the City Financing Contribution, and coordinating issuance of change orders with the approval of the City and LTNT and other necessary parties. The City may also request through action of the City Council proposed changes or modifications to the scope or character of the City Facilities, subject to the approval of OHPD and OHM. Once construction of the Project commences, OHM shall serve as construction manager and shall provide the following services with respect to the Project: 4.5.1 Providing on-site supervision including, at a minimum, a project manager/superintendent; 4.5.2 Making physical visits to the job site to review the work and progress of construction with the Contractors, and hold community meetings and discussions with interested citizens of the City about the status and progress of the Project; -25- #433872Q.24 4.5.3 Responding to any questions from the City, LTNT, or the Hotel Franchisor regarding the work or progress of construction, construction methods, scheduling, and the like; 4.5.4 Coordinating the acceptance of the City Facilities, as and when the same are appropriately Substantially Completed, by OHPD as the sub-lessee under the City Facilities Sublease; 4.5.5 Coordinating efforts by all appropriate Parties to complete the City Facilities and Hotel and Restaurant substantially in accordance with the final drawings and specifications, as the same may be amended from time to time with the approval of all necessary Parties, such efforts to include assisting in the scheduling of inspections and the preparation of punch lists; 4.5.6 Obtaining, or causing the General Contractor to obtain, on behalf of the City, a temporary, if applicable, and permanent certificate of occupancy (or other appropriate and necessary governmental permission to occupy) with respect to the City Facilities; 4.5.7 OHM shall, subject to section 6.8 herein and to events of "Force Majeure," cause Commencement of Construction of the Convention Center to occur on the Convention Center Site on or before the Construction Deadline and cause Completion of Construction of the same within twenty (20) months after the actual Commencement of Construction ("Completion of Construction Deadline" ) OHPD and OHM estimate that construction will take approximately eighteen (18) months; 4.5.8 The Convention Center must be constructed in a good and workmanlike manner free of liens in favor of any person or entity providing labor or materials in connection with such construction; 4.5.9 The Convention Center must be constructed in accordance with the approved Final Site Plan, Final Design and this Agreement; and 4.5.10 The Convention Center will be designed and constructed in accordance with Applicable Law, including the coordination with the City's independent construction materials engineering testing and inspection of the facility as required by Texas Government Code, Chapter 2269. 4.5.11 OHM shall promptly pay or cause to be paid all contractors and subcontractors on the Project in accordance with the City's Contractor Payment Guidelines. 4.5.12 Construction Draws. (a) All draws for the Convention Center construction will be submitted to the City, pursuant to a draw request as required by the City. The City shall approve each draw request and make payment within thirty (30) days of receiving a draw request from OHM; provided however, such draw requests (which will include multiple individual draw requests) shall not be submitted to -26- #4338720.24 the City more than one per thirty (30) day period during the development, design and construction process. (b) All Change Orders for the Convention Center construction shall be submitted to the City, and such Change Orders shall be reviewed by the City within thirty (30) days. The City shall not be obligated to approve any Change Orders that would exceed the City Financing Contribution. "Change Orders" will be defined as any document submitted to or received from the general contractor hired to construct the Convention Center that requires that additional funds be expended over the Convention Center Budget or that alters the Final Site Plan or building exterior. 4.5.13 Conditions to Citv's Performance. The City's commitment to construct the Convention Center is conditioned upon: (a) OHPD and OHM having timely performed all of their obligations under this Agreement, including the Private Financing Contribution; (b) OHPD having caused Commencement of Construction of the Hotel to have occurred; and (c) the issuance of debt to finance the construction of the Convention Center (the issuance of such debt in the sole discretion of the City Council), as set forth in Article VI herein. ,. �; �.�,', 5.1 Design Development Phase. 5.1.1 Pavment of Costs of the Convention Center Desi�n Develonment Architectural Drawings. The City shall pay the costs of the Convention Center Design Development Architectural Drawings in an amount not to exceed $200,000. Upon completion of the Convention Center Design Development Architectural Drawings, the Ciiy may elect to terminate this Agreement on or before the Feasibility Deadline pursuant to 3.3.2 and 11.1.2 herein. The City may reimburse itself for expenditures relating to the Convention Center Design Development Architectural Drawings from the proceeds of its debt issued to fund the City Financing Contribution. 5.1.2 Pavment of Costs of the Hotel Design Development Architectural Drawin�s. OHPD shall pay the costs of the Hotel Design Development Architectural Drawings. 5.1.3 Private Financin� Contribution. On or before the Feasibility Deadline, OHPD and the equity partners or the lender providing the construction debt portion of the Private Financing Contribution (the "Hotel Lender") in accordance with the Hotel Budget shall have mutually agreed upon the form of the loan agreement to be entered into at or before the Closing (the "Hotel Loan Agreement"); and OHPD shall have obtained a binding commitment acceptable to the City and iJNT (containing no conditions other than the City's Financing Contribution to the Convention Center) for the permanent financing for the Hotel and Restaurant from the Hotel Lender or a successor Hotel Lender. The Hotel Loan Agreement shall provide that the Hotel Lender shall not have any liens on the City Facilities or any fund created to benefit the City. OHPD and the investor or investors providing the equity portion of the Private Financing Contribution shall have mutually agreed upon the form of the venture -27- #433872d.24 documentation to be entered into at the Closing providing for the investment of such equity capital. OHPD shall send the Hotel Loan Agreement to LTNT and the City for review and approval. OHPD shall pay the costs of the Final Hotel Design from its Private Financing Contribution. 5.1.4 Feasibility Deadline. (a) On or before the Feasibility Deadline, the City shall notify OHPD of its inability or unwillingness to secure the entire amount of the City Financing Contribution on terms and conditions acceptable to OHPD and LJNT. Upon such notification, the obligations to proceed with the Project pursuant to this Agreement shall terminate pursuant to Article XI herein. (b) On or before the Feasibility Deadline, if OHPD is unable or unwilling to provide written evidence to the City and UNT, in form reasonably acceptable to the City and LTNT pursuant to Section 5.1.3 above, that it has secured the entire amount of the Private Financing Contribution, then the obligations to proceed with the Project pursuant to this Agreement shall terminate pursuant to Article XI herein. (c) If the Parties are able to provide assurances with respect to their financing contributions, as set forth in (a) and (b) above and all other requirements that are required prior to the expiration of the Feasibility Deadline have been met, then the Parties shall proceed to the Final Design of the Design Development Phase as set forth in Article III and Closing as set forth in Section 5.1.7 herein and the City shall move forward with the publication of the Notice of Intent. The City shall not issue debt to fund the City Financing Contribution until the expiration of the Financing Viability Deadline and the Private Financing Contribution is fully available to the satisfaction of the City and LTNT as set forth in (d) below. The costs of Final Design shall be paid solely from the City Financing Contribution which will not be available until Closing occurs. The issuance of debt is in the sole discretion of the City Council. (d) OHPD acknowledges that the City's contribution of the City Financing Contribution is subject to the issuance of debt by the City on terms deemed reasonable by the City Council in its sole discretion and that the issuance of debt is a discretionary, governmental action of the City Council. The City shall not issue debt to fund the City Financing Contribution and shall not fund the City Financing Contribution until it has received from OHPD, an executed loan commitment or other funding commitment(s) from financial institution(s) or investors in favor of OHPD in form and content acceptable to the City containing no conditions to funding except the City's issuance of debt, and in an amount equal to the Total Hotel Costs. The discretion to issue debt is vested in the City Council and in no event will the City have any obligation to issue debt pursuant to this Agreement or have any commitment or obligation to provide funds above the City Financing Contribution. -28- #4338720.24 5.1.5 Financin� Viability Deadline. On or before the Financing Viability Deadline, the City shall notify OHPD of the current market conditions for the issuance of the City's debt to fund the City Financing Contribution, including current interest rates and the estimated debt service schedule. If the projected true interest cost of the City's obligations, as calculated by the City's financial advisor, is in excess of 6.00%, then this Agreement shall terminate pursuant to Article XI herein, unless otherwise agreed to by the Parties. 5.1.6 City Financin� Contribution. Upon the obtaining of a GMP Contract pursuant to Article III and the expiration of the Feasibility Deadline, the City shall begin the preliminary statutory requirements for the issuance of debt to fund the City Financing Contribution, which shall include the publication of the Notice of Intent. Upon the expiration of the Financing Viability Deadline and in the event there is no petition filed during the time period between publication of the Notice of Intent and the date of the adoption of the City's Ordinance authorizing the debt, the City shall move forward with the adoption of an ordinance authorizing the issuance of the City's debt. The timing of the adoption of such ordinance is in the sole discretion of the City. The City shall not adopt an ordinance issuing its debt and shall not sell its debt unless the conditions of 5.1.3 herein have been met and the Feasibility Deadline and Financing Viability Deadline have passed. The City shall make a good faith effort to time the sale of its debt in favorable market conditions in order to lower the overall financing cost of the City Facilities and shall use all possible urgency and diligence to sell the debt such that the True Tnterest Cost does not exceed the range of 6.0% -6.5%; however, the City shall not close on its debt until the City Council has approved the funding of the City Financing Contribution and the conditions in Section 5.1.7(a) herein have been met. Notwithstanding any provision of this Agreement or this Section, the issuance of debt is subject to the sole discretion of the City Council. The costs of the Final Design shall be paid by the City from the proceeds of the City's debt issuance pursuant to Section 5.1.7 below. 5.1.7 Closin�. Closing shall occur as follows: (a) Subject to the City Council's determination to fund the City Financing Contribution, the City shall sell its debt and close upon the City Financing Contribution, and OHPD shall close upon the Private Financing Contribution on or before the Construction Deadline such that funds are available for the construction of the Project (each, the "Closing"). The proceeds of such financing contributions shall be invested in accordance with their respective terms and shall be made available for disbursement for construction of the City Facilities and the Hotel and Restaurant. The disbursement of the City Financing Contribution shall be controlled by the City pursuant to its established disbursement process and procedures. -29- #4338720.24 (i) Upon Closing, OHPD shall lease the Hotel Site and its improvements from IJNT pursuant to the Hotel Lease, and the City will lease the City Facilities Site from UNT pursuant to the City-LTNT Land Lease, such lease to commence and be effective according to its terms and shall be contingent on Closing. (ii) Upon Closing, OHPD, as sub-lessor, and OHPD, as sublessee, shall sublease the City Facilities Site and its improvements to OHPD, pursuant to the City Facilities Sublease, such lease to commence and be effective according to its terms and shall be contingent on Closing. 5.2 Construction Phase. 5.2.1 Pavment of +�'�.�r�c�:�-��ti��n Phase Costs. Costs for the construction of the City Facilities shall be paid from the proceeds of obligations issued by the City. Costs for the construction of the Hotel Facilities shall be paid from OHPD's Private Financing Contribution. The City's payment of the costs of the City Facilities and OHPD's costs of the Hotel Facilities are subject to Section 5.1.7 herein. 5.3 City Financing Contribution Limitation. In no event shall any payment required by this Agreement obligate the City to make any payment in excess of the City Financing Contribution. In the event the Final Design of the City Facilities and its budgeted costs as determined in the Design Development Phase exceed the City Financing Contribution, City and OHM and OHPD will work together to resolve such funding issues. After the exhaustion of all reasonable means, in the event the Parties cannot reach an agreement as to the resolution of such funding issues, this Agreement shall terminate. Any costs or expenses for the Project which arise as a result of Force Majeure during the Construction Phase shall be divided among OHPD and the City with the City paying only for costs and expenses related to the City Facilities, as specified in the construction contracts and construction manager contract for the construction of the City Facilities. sI�:71 Y:[��/'I �� . . 6.1 Purchasin� Services. During the course of development of the Project, OHPD and/or OHM shall perform or cause to be performed the following services with respect to FF&E to be installed in the City Facilities and the Hotel and Restaurant: 6.1.1 FF&E Schedule. The Development Plan prepared by OHM with the approval of the City and UNT shall include a prototypical schedule setting forth by category the types of FF&E for the Hotel and the City Facilities, consistent with the design and style of the Hotel and of sufficient quality such that the Hotel will be developed in an Upscale Manner and be in an Upscale Condition (hereinafter referred to as the "FF&E Schedule") and the City Facilities will meet the standards of Comparable Convention Centers. 6.1.2 FF&E Specifications. The FF&E shall be those items specified in specifications therefor (hereinafter referred to as "FF&E Specifications") as coordinated by -30- #4338720.24 OHPD and approved by the City, and shall specify the type of FF&E consistent with the design and style of the Hotel and of sufficient quality such that the Hotel will be developed in an Upscale Manner and shall be in an Upscale Condition and the City Facilities will meet the standards of Comparable Convention Centers. The City shall perform the procurement process for acquisition of the FF&E for the City Facilities, who shall coordinate purchasing of the FF&E for the City Facilities pursuant to purchase orders naming the City as owner or purchaser. All purchases applicable to City Facilities under this Article shall comply with Chapter 252 and Chapter 271, Texas Local Government Code. 6.1.3 Approval of FF&E Specifcations. OHM shall cause the FF&E Specifications for the City Facilities to be delivered, prepared and submitted to the City for its approval as promptly as reasonably practicable during the design development or construction phases. 6.1.4 Pricing and Procurement. The City shall diligently seek to obtain the most favorable prices and terms available in connection with the purchase of the FF&E for the City Facilities to the extent required by Chapter 252 and Chapter 271, Texas Local Government Code, subject to the FF&E specifications described in sections 6.1.2 and 6.1.3 above. The cost of the FF&E for the Convention Center shall be a part of the City Financing Contribution. 6.1.5 Delivery Schedule. With regard to the City Facilities, OHM shall assist the City with the preparation of a projected delivery schedule for goods purchased based on production and delivery dates furnished by suppliers. OHM shall use reasonable efforts to coordinate the schedule with the construction schedule under the construction contracts. OHM shall coordinate with the City, the issuance of purchase orders within sufficient time to allow delivery in accordance with the projected construction schedule. 6.1.6 Records. OHM shall assist the City with the maintenance of proper, accurate and complete accounting records including purchasing receipts and delivery tickets made in connection with the purchase of the FF&E for the City Facilities. Upon receipt and acceptance of the FF&E Equipment for the City Facilities, OHM will deliver the receipt to the City within 48 hours, to ensure prompt payment is achieved. OHM shall maintain proper, accurate and complete accounting records, including competitive bids and proposals, purchase orders, purchasing receipts and delivery tickets made in connection with the purchase of the FF&E for the Hotel. OHPD and/or OHM shall make available these records for audit, inspection and photocopying by LJNT and the City, or any other persons designated by the City upon five (5) business days' notification. Following Final Completion of the Project or termination of this Agreement, OHPD and/or OHM shall, at OHPD and/or OHM's sole cost, deliver to the City and LTNT a copy of all such 'records. OHPD and/or OHM shall retain copies of such records for a Period of three (3) years after Final Completion. 6.1.7 Inventorv. OHPD andJor OHM shall provide an inventory of goods and materials to UNT and the City, or such other persons, as may be designated by the City or LTNT, within ninety (90) days after delivery of the last item of FF&E for the Project. -31- ;� 6.2 Pa_yment for FF&E. 6.2.1 The City shall purchase the FF&E for the City Facilities of the type and quantity described in the FF&E Schedule as prepared by OHM and approved by the City and OHM in accordance with the FF&E Budget and this Agreement. The City agrees to make directly to OHM, in its capacity as development manager for the City, monthly payments based upon invoices received for purchases of FF&E for the City Facilities, for payments required during such month not to exceed the amounts specified in the FF&E Budget, as part of the City Financing Contribution. OHM shall substantiate and provide verifications to the City of goods received. Purchase of FF&E for the City Facilities are exempt from sales taxes. 6.2.2 The FF&E costs for the Convention Center shall be part of the Total Convention Center Costs and shall be identified in the Design Development phase as a part of the budget for the City Facilities. Any costs paid by the City shall be part of the City Financing Contribution. If the FF&E costs in the Convention Center Budget would cause the City to exceed the City Financing Contribution, OHM and the City will work to resolve such budget issues. In the event that the City and OHM cannot resolve such budget and funding issues, the City shall have the option to terminate this Agreement. 6.2.3 It is understood that all purchase orders and agreements for FF&E for the City Facilities executed by the City shall specify the FF&E as being acquired for the account of the City (provided the City shall not be required to contribute to or expend any amount in connection with the City Facilities in excess of the City Financing Contribution), and OHPD shall not be responsible for payment of any such purchase orders and agreements, except to the extent of funds therefor actually received from the City or except to the extent that such amounts exceed the total amount of the City Financing Contribution. 6.2.4 All FF&E for the City Facilities shall be subject to the terms and provisions of the City Facilities Sublease. 6.3 Infrastructure. 6.3.1 Storm Water Draina�e and Detention� (a) The Parties will cooperate in connection with the identification and design of the off-site storm water drainage and detention system for the Project, including any necessary channels and/or other easements and improvements necessary to direct and collect storm water discharge from the Project Site. The costs of any necessary storm water drainage improvements attributable to the Convention Center shall be included as part of the Total Convention Center Costs and any costs paid by the City shall be a part of the City Financing Contribution. The costs of off-site storm water drainage and detention improvements shall be shared by the Convention Center and Hotel proportionately in accordance with Section 13.2. (b) Costs associated with perpetual maintenance of storm water detention facilities necessitated by the Project, wherever located, shall be borne -32- #4338720.24 equally by the City and OHPD in accordance with Applicable Law and the requirements of Section 13.2. 6.4 Easements. 6.4.1 Proiect Easements. The Parties agree to cooperate in good faith to grant to each other, without additional consideration, such easements as may be necessary to allow the efficient operation of the Project (including, but not limited to, right-of-way, utility, access, drainage, and cross-parking easements) provided however, nothing in this Section is intended to impose on any party an obligation to grant any easement if such easement would materially interfere with the grantor's use or intended use of its own property. Anticipated Easements are: (a) for access to the Project Site; (b) for construction easements in order to help facilitate the construction of the Project; (c) for utility access as needed for the Project; and (d) for parking of Hotel, restaurant and Convention Center guests off site on LJNT land; 6.4.2 Any and all such easements shall be set forth in recordable form and the Parties must agree on the form of and execute and deliver such easements on or before OHPD Commences Construction of the Hotel. To the extent either party has granted a lien or other encumbrance on its respective site prior to the date the easements are executed and recorded, such party must cause the holder of such lien or encumbrance to execute such instruments as the other may require to evidence the fact that such holder's interest is subordinate to the easernents. 6.5 Waiver of Development_Standards. To the extent OHPD or OHM desires any modification to City development standards, OHM or OHPD shall follow the City's procedures for obtaining waivers, which request shall be accompanied by detailed plans and specifications for the Project. City staff will review the plans and specifications with OHPD or OHM to determine the nature and extent of modifications and waiver of City regulations. The City Council shall have the sole discretion to grant any waivers. 6.6 No Relinauishment of Mu��icinal Regulatnrv Authnritv. Notwithstanding anything contained in this Agreement to the contrary, the City's and LTNT's review and (if applicable, approval) of proposed architectural plans, specifications, site plans, plats, drawings, or other submittals from OHPD, OHM or other persons in connection with this Agreement shall constitute approval for purposes of this Agreement only, and not be deemed to constitute approval, or replace, the City's and LTNT's right to review and approve same, under City's regulatory authority and/or police power under Texas or local law. 6.7 Title Search. LJNT shall conduct a title search of the land constituting the Project to ensure there are no existing liens or encumbrances that would prevent the development of the Project. The results of such title search shall be provided to OHPD and OHM. -33- #433872024 6.8 Extensions of Deadlines. In the event of a delay of the Project, the parties agree to a 30 (thirty) day extension of the date for Commencement of Construction and Completion of Construction as is required for the development of the Project. Any further reasonable extensions will be considered by the Parties and must be agreed to in writing. •� I • 1 1 1 • 1: 1 1 �!' l 7.1 Assi�nment, Transfer Lease. During the Term, OHPD shall continuously lease and operate the Hotel and Hotel Site and shall not, without the express written consent of the City and LTNT (which may not be unreasonably withheld), sell, convey, lease, sublease, or transfer OHPD's leasehold interest in the Hotel, the Hotel Site, or OHPD's leasehold estate under the Lease or Sublease, or any portion thereof (whether by sale, lease, sublease, assignment, deed of trust, mortgage, other instrument, transfer of the beneficial interest in OHPD or other means) (each, a"Transfer"). The City's and iJNT's consent to any Transfer, or the occurrence of a permitted Transfer, shall not constitute, or be deemed or construed as constituting, (i) the City's or UNT's consent to any future Transfer or (ii) a waiver of City's or iJNT's right to consent to subsequent Transfers. Any Transfer by OHPD, other than a Transfer permitted hereunder, made without the consent of the City and LTNT shall constitute an Event of Default hereunder without the necessity of any notice or opportunity to cure being given to OHPD. 7.1.1 Conditions to Transfers. (a) In the event the City and LTNT consent to any Transfer, the permitted assignee, transferee, or sublessee of OHPD must expressly assume all of the covenants and obligations of OHPD herein and in any related Agreements in a writing acceptable to the City and LTNT in their sole discretion. Furthermore, no such Transfer shall release, or be deemed or construed as releasing, OHPD from any obligations and/or liabilities it may have under this Agreement or any related agreements. (b) OHPD hereby assigns to LTNT the right of OHPD to receive payment as a result of any approved Transfer (except for Transfers permitted under Section 7.1.2 below) to the extent (and only to the extent) of the amount of the unpaid and remaining portion of OHPD's obligations to LJNT due under this Agreement and any related agreements. OHPD hereby authorizes the person or entity making such payment to pay such amount directly to LJNT. The provisions of this Section 7.1.1 shall survive termination of this Agreement. 7.1.2 Permitted Transfers. Subject to the transfer provisions in the OHPD- UNT Land Lease, and without waiving the City's and LTNT's right to review and approve any Transfer that is not otherwise expressly permitted under this Section, and provided that no Event of Default (defined below) exists hereunder, UNT agrees that OHPD may: (a) grant a mortgage lien on the Hotel Site and Hotel to the lender(s) providing OHPD construction or permanent financing for the Hotel, which -34- #4338720.24 financing must be subordinate to the Hotel Lease, the Declaration, and OHPD's covenants and obligations under this Agreement (including the obligation to pay the rents to LJNT and the City under the respective Leases); and (b) enter into leases for retail or gift shops within the Hotel and/or leases for franchise restaurants within the Hotel, (provided that all of the foregoing in this Section 7.1.2 must be first approved by LTNT and any Approved Franchisor), such approval not to be unreasonably withheld. 7.1.3 Prohibited_ Transfers. OHPD agrees that the City and iJNT are not obligated to grant its consent for a Transfer if: (a) the proposed transferee is eligible for exemption from ad valorem or other taxation under the laws of the State of Texas (an "E�empt Entity"); (b) the proposed transferee is a third party which, in the City's and UNT's reasonable discretion, does not have an appropriate level of experience, andlor reputation for quality, as OHPD or OHM in operating projects such as the Proj ect; (c) Completion of Construction of the Hotel and Convention Center has not occurred; and/or (d) The transfer is not permitted under the City-OHPD Convention Center Sublease. 7.1.4 Transfer to Exempt Entity. If the Hotel is transferred at any time during the Term of this Agreement to an entity, exempt from the payment of taxes, such Transfer will, in addition to constituting an Event of Default under the Lease and this Agreement (and without limiting the City's and UNT's remedies in connection therewith), result in: (a) an increase in the rent owed pursuant to the terms of the Convention Center Sublease, all as more particularly set forth therein; and (b) OHPD will be responsible for yearly payments to the City in an amount equal to the most recent appraised value used in determining the property tax revenue which the City in its reasonable discretion expects to receive over the terms of the City Facilities Sublease and OHPD-L7NT Land Lease following the Transfer. 7.2 Compliance with Applicable Law. All Parties agree to comply with all Applicable Laws. 7.3 Proiect Qualitv and Operation. At all times during the Term; OHPD must cause the Hotel to be continuously operated, and the Hotel and Hotel Site (including, without limitation, all landscaping constructed and/or placed thereon) to be maintained, in an Upscale Condition and repair in accordance with the standards of any Approved Franchise. The results of any quality inspection made by any Approved Franchisor of the Hotel and/or the Convention -35- #433872d.24 Center shall be made available to the City upon request. During the Term, the Hotel must be operated as a full service, upscale hotel and related amenities, open to the public and operating under and in accordance with the standards of an Approved Franchise. OHPD shall continuously maintain and operate the Convention Center and Hotel in accordance with the standards set forth in the Convention Center Sublease and OHPD-LTNT Land Lease. In keeping with the foregoing, if at any time prior to the expiration of the term of the OHPD-iJNT Land Lease, the Hotel is totally or partially damaged or destroyed by fire, the elements, unavoidable accident or other casualty, OHPD must, at OHPD's expense, repair and restore the Hotel to the condition same was in immediately prior to such damage; provided, however, if the damage occurs during the last five (5) years of the term of the OHPD-LJNT Land Lease and as a result thereof the Hotel is damaged to an extent that the cost to repair same is greater than fifty percent (50%) of the then value thereof (exclusive of the value of the land constituting the Hotel Site), OHPD shall have no obligation to repair or restore the Hotel. If OHPD is obligated to repair and restore the Hotel in accordance with the terms of this Section 7.3, OHPD must commence such repair and restoration within a reasonable timeframe based on the severity of the damage, as agreed to by UNT and the City, and prosecute same with all reasonable diligence until completed; provided, however, any and all such repair and restoration work must be completed no later than one year from the date of damage. 7.4 Payment of Taxes. OHPD shall not permit any real or personal property taxes, sales taxes, hotel/motel occupancy taxes, or any other tax, assessment, or other charge imposed by any governmental authority that may be owed by OHPD, its successors and affiliates to the City or any other applicable taxing unit, or as may be assessed against the Hotel, the Hotel Site, the Convention Center, the Convention Center Site, and/or the leasehold estate under the Lease, or any other property owned by OHPD, to become delinquent (provided OHPD shall retain the right to timely and properly contest such taxes or assessment). This Section 7.4 shall survive the termination of this Agreement while the OHPD is lessee under the City-OHPD Convention Center Sublease. 7.5 Limitation on T",�� Exemntion, Pursuant to a determination of the Denton Appraisal District, a portion of the Hotel may be or may become eligible for an ad valorem t� exemption based on its public use. Nevertheless, OHPD agrees that it shall not seek from the Denton Appraisal District an exemption from the payment of ad valorem t�es on more than 15% of the square footage of the Hotel. 7.6 Survival of Obli�ations. The obligations of the Parties under this Agreement, the City-UNT Land Lease, the City Facilities Sublease and the Hotel Lease shall survive during the Term, and shall survive any conveyance, foreclosure or other transfer of the Hotel, Hotel Site, Convention Center, Convention Center Site and the Parties interests under this Agreement. ,, .. I►� . ► '! � .> . 8.1 Maintenance. As further set forth in the City-OHPD Convention Center Sublease, the OHPD-LTNT Land Lease and the City-LJNT Land Lease, OHPD and OHM agree to -3 6- #4338720.24 maintain all improvements hereafter constructed on the Hotel and Restaurant Site in a condition to satisfy the definition of Upscale Condition, and OHPD and the City (pursuant to its obligations under Section 3.4.3 herein) agree to maintain all improvements hereafter constructed on the Convention Center Site (including, without limitation, landscaping), respectively, in a manner that meets the standard of Comparable Convention Centers. OHPD shall make all necessary replacements to the Hotel and Restaurant and OHPD, OHM and the City (pursuant to its obligations under Section 3.4.3 herein) shall make all necessary replacements to the Convention Center Site so that throughout the term of this Agreement, the Hotel, Restaurant, Hotel and Restaurant Site, Convention Center and Convention Center Site are maintained in a manner that meets the standard of Comparable Convention Centers. 8.2 Insurance. OHPD, with respect to the Hotel, Restaurant and the Hotel and Restaurant Site, OHM or OHPD and the City, with respect to the Convention Center and Convention Center Site, shall maintain at their respective sole cost and expense pursuant to each party's responsibilities under this Agreement: 8.2.1 "Special Causes of Loss Form" Commercial Property Insurance on any improvement now or hereafter constructed on the Project Site. All insurance, unless agreed by the other party, shall be for the full insurable value of the improvements and contents on the respective properties, with a deductible amount approved in writing by LJNT and no greater than that retained by owners of similar properties in the State of Texas at the time the policy in question is obtained. No policy of insurance required under this Section 8.2.1 shall be written such that the proceeds thereof will produce less than the minimum of coverage required hereunder by reason of co-insurance provisions or otherwise. The term "full insurable value" means one hundred percent (100%) of the actual replacement cost of the improvements constructed on said property (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items). Additionally, the Property Insurance Policy shall provide for Business Income/Interruption coverage with sufficient limits based on the potential loss of income generated by the Convention Center and Hotel. The insurance maintained by OHPD and OHM shall name the City and LTNT as loss payee. 8.2.2 Commercial General Liability Insurance on a"occurrence" basis against claims for personal injury, liability and liability for death, bodily injury and damage to property, products and completed operations, all in limits, from time to time, equal to those customarily held by owners of similar projects in the State of Texas, with respect to any one occurrence and the aggregate of all occurrences during any given annual policy Phase. The liability insurance maintained by OHPD with respect to the Hotel and Hotel Site shall name the City as an Additional Insured. The City, in its sole discretion, may choose to satisfy the requirements of 8.2.2 through a self-insurance program. 8.2.3 During any Period of construction on either property, the leaseholder and owner thereof shall maintain, or cause others to maintain, builder's risk insurance (non- reporting form) with completed operations coverage of the type customarily carried in the case of similar construction for one hundred percent (100%) of the full replacement cost of work in place and materials, supplies and equipment that are intended to be installed in the construction regardless of whether same are stored at or upon the property or off of the property in question, -3 7- � except that the parties agree to reasonable deductibles necessary to obtain reasonable insurance rates, 8.2.4 Business Automobile Liability in an amount not less than $500,000 per occurrence/$1,000,000 in the aggregate, providing coverage for any Auto, or for Hired non Non- Owned Vehicles. All business automobile policies shall name the city as an Additional Insured. 8.2.5 OHPD, with respect to the Hotel and Restaurant, and OHM or OHPD with respect to the Convention Center, shall maintain, or cause to be maintained by any contractor, subcontractor, vendor or caterer, Liquor Liability insurance with sufficient limits to cover the provision of alcohol in the restaurant, restaurant bar, Hotel, Hotel bars, and the Convention Center. 8.2.6 In addition to the foregoing, each party shall cause any contractor performing work or providing services on its property to provide and maintain commercial general liability insurance for all employees of the contractor meeting the requirements of Section 8.2.2 and 8.2.3 above. 8.2.7 In addition to the foregoing, each party shall cause any contractor and subcontractor or vendor performing work or providing services on the Project to provide business automobile liability in an amount not less than $500,000 per occurrence/$1,000,000 in the aggregate, providing coverage for any Auto, or for Hired or Non-Owned Vehicles. All business automobile policies shall name the City as an Additional Insured. 8.2.8 In addition to the foregoing, each party shall cause any contractor and subcontractor performing work on the property to provide workers' compensation coverage with Texas Statutory limits of coverage. 8.2.9 Each policy of insurance (i) shall be issued by one or more insurance companies each of which must have an A.M. Best Company financial and performance rating of A-:IX or better and be qualified or authorized by the laws of the State of Texas to assume the risk covered by such policy (ii) with respect to the insurance maintained by OHPD and OHM and described under the preceding subsections 8.2.1 and 8.2.3, shall have attached thereto standard non-contributing, non-reporting mortgagee clauses in favor of the City and UNT without contribution to collect any and all proceeds payable under such insurance (iii) shall provide that such policy shall not be canceled or modified without at least thirty (30) days prior written notice to City and (iv) shall provide that any loss otherwise payable thereunder shall be payable notwithstanding any act or negligence of the named insureds which might, absent such agreement, result in a forfeiture of all or a part of such insurance payment. Each party shall promptly pay all premiums when due on such insurance and not less than fifteen (15) days prior to the expiration date of each such policy, deliver to the other acceptable evidence of insurance, such as a renewal policy or policies marked "Premium Paid," or other evidence satisfactory to the other parties, reflecting that all required insurance is current and in force. Each party will immediately give notice to the others of any cancellation of, or material change in, any insurance policy required to be maintained hereunder. Each party may satisfy any insurance requirement hereunder by providing one or more "blanket" insurance policies. -38- aa33s7za.za 8.2.10 The Parties agree to cooperate in the investigation and procurement of any joint insurance policies that may substantially lower the cost of any insurance required or which is reasonable for the Project. All insurance policies procured for the Project Site by any Party shall name the other Parties as "additional insureds" unless such endeavor would interfere with or jeopardize the insurance coverage, or cause substantial increase in the cost of the insurance. 8.2.11 OHM shall maintain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Coverage shall be maintained throughout the term of the contract and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure coverage is maintained. Any termination of workers' compensation insurance coverage shall be a material breach of this contract. Any workers' compensation policy obtained by OHPD or OHM must be endorsed to include a waiver of subrogation in favor of the City and must include the following limits: Employer's Liability with limits of at least $1,000,000 each accident, $1,00.0,000 by disease policy limit and $1,000,000 by disease each employee shall also be obtained and maintained throughout the term of this Agreement. 8.3 Policv Requirements. The following general requirements shall apply to all insurance coverage carried by OHPD and OHM pursuant to Section 8.1: 8.3.1 To the extent available, each policy shall contain a clause whereby the insurer waives all rights of subrogation against the City, iJNT, OHM and OHPD; 8.3.2 The City and UNT shall be named as an additional insured in all liability policies hereunder as their respective interests may appear; 8.3.3 Such policies shall be with reputable insurance companies reasonably acceptable to the City and iJNT and licensed to do business in the State of Texas; 8.3.4 OHPD and OHM shall provide the City and LJNT with policies or certificates of insurance evidencing such coverage prior to the start of construction; 8.3.5 Within thirty (30) days prior to expiration of coverage, or as soon as practicable, renewal policies or certificates of insurance evidencing renewal and payment of premium shall be provided by OHPD and OHM; and 8.3.6 The coverages must be noncancelable unless the carrier provides to the City and LTNT thirty (30) days' prior written notice of cancellation. ' ,. 1 1 1 9.1 Conditions to Performance. This Agreement, and the Parties' obligations hereunder, shall be subject to the following conditions precedent: -39- #4338720.24 9.1.1 City Contractor. The City selecting a General Contractor for the Convention Center construction. 9.1.2 Hotel Financing. OHPD obtaining and retaining sufficient financing for the construction of the Hotel. 9.1.3 Environmental �� Geotechnical Condition of the Proiect Site. OHPD's determination, that the environmental condition of the Project Site is acceptable and does not contain pollutants and contamination of any sort that could present potential liability or a threat to human health, and the geotechnical (subsurface) condition of the Project Site is adequate and acceptable for the development and construction of the Hotel, Restaurant, Convention Center, Hotel and Restaurant Site and Convention Center Site. LJNT will cooperate in providing any information or reports in its possession or control. 9.1.4 Title or Re�ulatorv Issues. Issuance of a title commitment covering the Convention Center site and the Hotel Site, showing all matters affecting title and binding the title company to issue in favor of OHPD, the City and the Hotel Lender at closing owner/mortgagee policies of title insurance on the standard form of policy, subject to standard printed exceptions, showing that there are no title issues of any sort that could reasonably delay or prohibit the intended development or construction of the Project Site. OHPD shall pay the basic cost associated with issuance of the title policy and the cost of any endorsements to the title policy requested by OHPD, OHM, the City, or the Hotel Lender. 9.1.5 No Intervention. No preliminary or permanent injunction or other order, decree or ruling having been issued by a governmental entity and no statute, rule, regulation or executive order promulgated or enacted by a governmental entity shall be in effect which restrains, enjoins, prohibits or otherwise makes illegal the consuimnation of the transactions contemplated by this Agreement and/or the City's proposed structure for financing the cost of its obligations relating to the Convention Center and no proceedings by a governmental entity shall be commenced or threatened against the City, LJNT or OHPD (or any of their respective affiliates, associates, directors or officers) seeking to prevent or challenge the transactions contemplated by this Agreement and/or the City's proposed structure for financing the cost of its obligations relating to the Convention Center and no proceeding before a court of competent jurisdiction having been commenced against the City, iJNT or OHPD (or any of their respective affiliates, associates, directors or officers) seeking to prevent or challenge the transactions contemplated by this Agreement and/or the City's proposed structure for financing the cost of its obligations relating to the Convention Center or seeking material damages in connection therewith. If any of the foregoing conditions in 9.1.1 — 9.1.5 of this Article X have not been satisfied on or before the expiration of the Feasibility Deadline, this Agreement shall terminate and thereafter neither party shall have any further rights or obligations one unto the other hereunder unless, at such time, the Parties enter into a written agreement acknowledging that this Agreement shall continue notwithstanding the failure of any such condition to have been satisfied at such time. Upon the expiration of the Feasibility Deadline, the foregoing conditions in 9.1.1 — 9.1.4 of this Article X shall no longer apply. ,� #4338720.24 .� . �. � .. � � - 10.1 Representations and Warranties of the Citv. The City hereby represents and warrants to OHPD and LTNT that the following statement is true as of the date hereof. 10.1.1 Due Authority; No Conflict. The City has all requisite power and authority to execute this Agreement and to carry out its obligations hereunder and the transactions contemplated hereby. This Agreement has been, and the documents contemplated hereby will be, duly executed and delivered by the City and constitute legal, valid and binding obligations enforceable against the City in accordance with the terms subject to principles of governmental immunity and the enforcement of equitable rights. The consummation by the City of the transactions contemplated hereby is not in violation of or in conflict with, nor does it constitute a default under, any of the terms of any agreement or instrument to which the City is a party, or by which the City is bound, or of any provision of any applicable law, ordinance, rule or regulation of any governmental authority or of any provision of any applicable order, judgment or decree of any court, arbitrator or governmental authority. 10.1.2 Due Authority; No Litigation. No litigation is pending or, to the knowledge of the City, threatened in any court to restrain or enjoin the construction of the City Facilities or the City's issuance or delivery of the City's debt issuance, or otherwise contesting the powers of the City or the authorization of this Agreement or any agreements contemplated herein. 10.2 OHM's and (}�-�l'L3's Renresentations and Warranties. OHPD and OHM, separately and not jointly, represent and warrant to the City and LJNT that the following representations and warranties are true as of the date hereof. 10.2.1 Due Or�anization and Ownership. OHPD and OHM are limited liability companies validly existing under the laws of the State of Missouri and are duly qualified to do business in the State of Texas; and that the person executing this Agreement on behalf of is authorized to enter into this Agreement. 10.2.2 Due Authority: No Conflict. OHPD and OHM have all requisite power and authority to execute and deliver this Agreement and to carry out its obligations hereunder and the transactions contemplated hereby. This Agreement has been, and the documents contemplated hereby will be, duly executed and delivered by OHPD and OHM and constitute OHPD's and OHM's legal, valid and binding obligations enforceable against OHPD and OHM in accordance with their terms. The consuimnation by OHPD and OHM of the transactions contemplated hereby is not in violation of or in conflict with, nor does it constitute a default under, any term or provision of the organizational documents of OHPD or OHM, or any of the terms of any agreement or instrument to which OHPD or OHM is a party, or by which OHPD and OHM is bound, or of any provision of any applicable law, ordinance, rule or regulation of any governmental authority or of any provision of any applicable order, judgment or decree of any court, arbitrator or governmental authority. -41- #4338720.24 10.2.3 Consents. No consent, approval, order or authorization of, or declaration or filing with any governmental authority is required on the part of OHPD in connection with the execution and delivery of this Agreement or for the performance of the transactions herein contemplated by the respective Parties hereto. 10.2.4 Litigation. To the best knowledge of OHPD and OHM, after reasonable inquiry, there are no pending or, to the best knowledge of OHPD and OHM, threatened, judicial, municipal or administrative proceedings, consent decree or, judgments which might effect OHPD's ability to consummate the transaction contemplated hereby. 10.2.5 Le�al Proceedings. To the knowledge of OHPD and OHM, after reasonable inquiry, no preliminary or permanent injunction or other order, decree, or ruling issued by a governmental entity, and no statute, rule, regulation, or executive order promulgated to enacted by a governmental entity, shall be in effect which restrains, enjoins, prohibits, or otherwise makes illegal the consummation of the transactions contemplated by this Agreement. 10.3 UNT's Representations and Warranties. LTNT represents and warrants to the City and OHPD that the following representations and warranties are true as of the date hereof. 10.3.1 Due Or�anization and Ownership. UNT is a component institution of higher education of the University of North Texas System, an agency of the State of Texas, validly existing under the laws of the State of Texas; and that the person executing this Agreement on behalf of is authorized by the Board of Regents of LTNT to enter into this Agreement and any related agreements to which they are a party. 10.3.2 Due Authority: No Conflict. LJNT has all requisite power and authority to execute and deliver this Agreement and to carry out its obligations hereunder and the transactions contemplated hereby. This Agreement has been, and the documents contemplated hereby will be, duly executed and delivered by LTNT and constitute LTNT's legal, valid and binding obligations enforceable against LJNT in accordance with their terms. The consummation by LTNT of the transactions contemplated hereby is not in violation of or in conflict with, nor does it constitute a default under, any term or provision of the organizational documents of LTNT, or any of the terms of any agreement or instrument to which UNT is a party, or by which LJNT is bound, or of any provision of any applicable law, ordinance, rule or regulation of any governmental authority or of any provision of any applicable order, judgment or decree of any court, arbitrator or governmental authority. 10.3.3 Consents. No consent, approval, order or authorization of, or declaration or filing with any governmental authority is required on the part of iJNT in connection with the execution and delivery of this Agreement or for the performance of the transactions herein contemplated by the respective Parties hereto. 10.3.4 Liti�ation. Liens and F,ncumhrances. To the knowledge of UNT, after reasonable inquiry, there are no pending or, to the best knowledge of LTNT, threatened, judicial, municipal or administrative proceedings, consent decree or, judgments which might effect UNT's ability to consummate the transaction contemplated hereby, nor are there any liens, encumbrances, threatened or actual lawsuits or legal claims on the Project Site or surrounding -42- #4338720.24 area which would encumber or in any way affect the Project Site or the land leases intended by the terms herein. 10.3.5 Le�al Proceedings. To the best knowledge of LTNT, after reasonable inquiry, no preliminary or permanent injunction or other order, decree, or ruling issued by a governmental entity, and no statute, rule, regulation, or executive order promulgated to enacted by a governmental entity, shall be in effect which restrains, enjoins, prohibits, or otherwise makes illegal the consummation of the transactions contemplated by this Agreement. ,. . � �.� � 11.1 Termination Events. The following events shall allow for termination of this Agreement and the Project 11.1.1 Termination at Financing Viabilitv Deadline. The City or OHPD may terminate the Agreement pursuant to Section 5.1.5 on the Financing Viability Deadline. 11.1.2 Termination at F��t�i��li��r Deadline. The City or OHPD may terminate the Agreement pursuant to Sections 5.1.4, 3.1.2 or 3.3.2 herein on or before the Feasibility Deadline. 11.1.3 Creation of Tax Increment Reinvestment Zone. The City shall have created or shall be in the process of creating the TIRZ, prior to the expiration of the Feasibility Deadline. If the City has not created or is not in the process of creating the TIRZ by the expiration of the Feasibility Deadline, or it if the actual or proposed participation by other taxing units in the City is not at a level necessary to fund the Convention Center Facilities in an amount that is approved by OHPD; provided that the City has approved the terms of the TIRZ creation and Project and Financing Plan, then this Agreement shall terminate and each Party shall be responsible for its own costs through the date of termination. The City shall notify OHPD of the proposed participation levels of the participating taxing units in the TIRZ prior to the Feasibility Deadline and OHPD shall only have the option to terminate this Agreement pursuant to this Section on or before the Feasibility Deadline. 11.1.4 Satisfaction of Phase Repuirements. In the event that any of the items or agreements as set forth in Article III are not, after the good faith, diligent efforts of the Parties, completed or agreed-upon on or before the Development Deadline, including the obtaining of GMP contracts for the Project, then LTNT, the City or OHPD may unilaterally terminate this Agreement by written notice to the other Parties on or before the Development Deadline, and thereupon this Agreement shall be of no further force or effect, except as expressly set forth herein. OHPD acknowledges and agrees that any costs advanced by OHPD are not subject to reimbursement from the other Parties to this Agreement for any reason in the event of a termination of this Agreement. 11.1.5 Financin� Commitments. In the event that OHPD has not obtained the Private Financing Contribution pursuant to Section 5.1.3 herein, then this Agreement shall terminate; or, in the event that OHPD has not closed on the Private Financing Contribution pursuant to Section 5.1.7 and the City has not closed on the City Financing Contribution -43- #433872d.24 pursuant to Section 5.1.7 by the Closing Deadline, then this Agreement shall terminate. The failure of the City to fund the City Financing Contribution shall not be an event of default under this Agreement but shall be deemed a termination event. 11.1.6 Termination for Cost �vcr�•�n� — Citv Facilities. In the event the design of the City Facilities and its budgeted costs exceed the City Financing Contribution, City and OHM and OHPD will work together to resolve such funding issues. In the event the Parties cannot reach an agreement as to the resolution of such funding issues, this Agreement shall terminate upon 30 days written notice by OHPD or the City. 11.1.7 Termination for �:��;�t Overruns - FF&E. If the FF&E costs in the Convention Center Budget would cause the Ciiy to exceed the City Financing Contribution, OHM and the City will work to resolve such budget issues. In the event that the City and OHM cannot resolve such budget and funding issues, the City shall have the option to terminate this Agreement upon 30 days written notice. 11.1.8 Mutual Termination. Prior to the sale of the City's debt in the market, all parties may mutually agree to terminate this Agreement at any time upon written notice to the other parties. 11.1.9 Termination for C+��i�u�~� to Meet Cnnditions. If any of the conditions in 9.1.1 — 9.1.5 of this Agreement are not satisfied on or before the Feasibility Deadline this Agreement shall terminate and thereafter neither party shall have any further rights or obligations one unto the other hereunder unless, at such time, the Parties enter into a written agreement acknowledging that this Agreement shall continue notwithstanding the failure of any such condition to have been satisfied at such time. 11.1.10 Termination E'ur�uant tn Leases. If changes to the OHPD-UNT Land Lease, the City Facilities Sublease or the City — LJNT Land Lease as a result of the requests of the equity source or lender for OHPD's Private Financing Commitment are not agreed to by the parties pursuant to Sections 3.4.1, 3.4.3 and 3.4.2, respectively, this Agreement may be terminated by any Party. 11.1.11 Pavment of Costs Upon Termination. OHPD acknowledges and agrees that any costs advanced by OHPD with respect to the Project are not subject to reimbursement from the other Parties to this Agreement for any reason in the event of a termination of this Agreement. 11.2 Termination upon Default. This Agreement shall terminate upon a default by either Party pursuant to Article XII herein. ,. 1 1 ' 1 ; 12.1 Default by OHPD. The occurrence of any of the following shall be an "Event of Default" by OHPD under this Agreement: -44- #433872d.24 12.1.1 The filing by OHPD of a voluntary proceeding under present or future bai�•uptcy, insolvency, or other laws respecting debtors, rights; 12.1.2 The consent by OHPD to an involuntary proceeding under present or future bankruptcy, insolvency, or other laws respecting debtor's rights; 12.1.3 The entering of an order for relief against OHPD or the appointment of a receiver, trustee, or custodian for all or a substantial part of the property or assets of OHPD in any involuntary proceeding, and the continuation of such order, judgment or degree unstayed for any Period of ninety (90) consecutive days; 12.1.4 OHPD's failure to pay or cause to be paid when due any sum of money owed by OHPD to the City or UNT pursuant to this Agreement, and the continuation of such failure for fifteen (15) days after written notice from the City or IJNT as applicable, specifying the nature and extent of any such default with opportunity to cure; 12.1.5 The failure of OHPD to perform or to observe any covenant, obligation or requirement of this Agreement not otherwise specifically named as a default in this Section 12.1, and the continuation of such failure for thirty (30) days after written notice from the City or LJNT specifying the nature and extent of any such default, or, if such default cannot reasonably be cured within such thirty (30)-day period, the failure either (i) to commence to cure such default within such thirty (30)-day period and to diligently continue to pursue such efforts to cure to completion, or (ii) to cure such default within a reasonable time after the expiration of the first thirty (30)-day period, in no event to exceed ninety (90) days after the written notice of default; 12.1.6 The termination of the Approved Franchise and OHPD's failure to obtain a replacement Approved Franchise for at least the number of remaining years necessary to reach 18 years from the date the Hotel is operational, pursuant to the City-OHPD Convention Center Sublease. 12.1.7 The failure of OHPD to begin construction on the Project by the Construction Deadline, or to have the Project Completed within twenty (20) months after Construction Deadline, unless the delay in completion is attributable to any Force Majeure, city delay, or the institution of litigation concerning the Project or any component thereof by a third party; The deadlines in this section are subject to Section 6.8 herein. 12.1.8 OHPD thereunder; or 12.1.9 A termination of the City Facilities Sublease resulting from a default by A Transfer by OHPD other than a Transfer permitted under Section 7.1. 12.2 Default by OHM. The occurrence of any of the following shall be an"Event of Default" by OHM under this Agreement: 12.2.1 The filing by OHM of a voluntary proceeding under present or future bankruptcy, insolvency, or other laws respecting debtors, rights; -45- #4338720.24 12.2.2 The consent by OHM to an involuntary proceeding under present or future bankruptcy, insolvency, or other laws respecting debtor's rights; 12.2.3 The entering of an order for relief against OHM or the appointment of a receiver, trustee, or custodian for all or a substantial part of the property or assets of OHM in any involuntary proceeding, and the continuation of such order, judgment or degree unstayed for any Period of ninety (90) consecutive days; 12.2.4 OHM's failure to pay or cause to be paid when due any sum of money owed by OHM to the City or iJNT pursuant to this Agreement, and the continuation of such failure for fifteen (15) days after written notice from the City or iJNT as applicable, specifying the nature and extent of any such default with opportunity to cure; 12.2.5 The failure of OHM to perform or to observe any covenant, obligation or requirement of this Agreement not otherwise specifically named as a default in this Section 12.2 and the continuation of such failure for thirty (30) days after written notice from the City or UNT specifying the nature and extent of any such default, or, if such default cannot reasonably be cured within such thirty (30)-day period, the failure either (i) to commence to cure such default within such thirty (30)-day period and to diligently continue to pursue such efforts to cure to completion, or (ii) to cure such default within a reasonable time after the expiration of the first thirty (30)-day period, in no event to exceed ninety (90) days after the written notice of default; 12.2.6 The termination of the Franchise Agreement due to the breach of its terms by OHPD; 12.2.7 The failure of OHM to begin construction on the Project by the Construction Deadline, or to have the Project Completed within twenty (20) months after Construction Deadline, unless the delay in completion is attributable to any Force Majeure, City delay, or the institution of litigation concerning the Project or any component thereof by a third party; The deadlines in this section are subject to Section 6.8 herein. 12.3 Default by the Cit_y. The occurrence of any of the following shall be an "Event of Default" by the City under this Agreement: 12.3.1 The filing by the City of a voluntary proceeding under present or future bankruptcy, insolvency, or other laws respecting debtors' rights; 12.3.2 The consent by the City to an involuntary proceeding under present or future bankruptcy, insolvency, or other laws respecting debtor's rights; 12.3.3 The entering of any order for relief against the City or the appointment of a receiver, trustee, or custodian for all or a substantial part of the property or assets of the City in any involuntary proceeding, and the continuation of such order, judgment or decree unstayed for any Period of ninety (90) consecutive days; 12.3.4 The City's failure to pay or cause to be paid when due any sum of money owed by the City to OHPD pursuant to this Agreement, and the continuation of such ,, #4338720.24 failure for thirty (30) days after written notice from OHPD, as applicable, specifying the nature and extent of any such default with opportunity to cure; 12.3.5 The failure of the City to perform or to observe any nonmonetary covenant, obligation or requirement of this Agreement and the continuation of such failure for thirty (30) days after written notice from OHPD specifying the nature and extent of any such default, or, if such default cannot reasonably be cured within such thirty (30)-day period, the failure either (i) to commence to cure such default within such thirty (30)-day period and to diligently continue to pursue such efforts to cure to completion, or (ii) to cure such default within a reasonable time after the expiration of the first thirty (30)-day period, in no event to exceed ninety (90) days after the written notice of default; or 12.3.6 A termination of the City Facilities Sublease resulting from a material default by the City thereunder; provided, however, that the City Facilities Sublease may not be terminated during the period of time the City's debt issuance for the construction of the Convention Center is still outstanding, as set forth in the City Facilities Sublease. 12.4 Default bv LTNT. 12.4.1 The filing by LTNT of a voluntary proceeding under present or future bankiuptcy, insolvency, or other laws respecting debtors' rights; 12.4.2 The consent by L7NT to an involuntary proceeding under present or future bankruptcy, insolvency, or other laws respecting debtor's rights; 12.4.3 The entering of any order for relief against LTNT or the appointment of a receiver, trustee, or custodian for all or a substantial part of the property or assets of LJNT in any involuntary proceeding, and the continuation of such order, judgment or decree unstayed for any Period of ninety (90) consecutive days; 12.4.4 UNT's failure to pay or cause to be paid when due any sum of money owed by LTNT to OHPD pursuant to this Agreement, and the continuation of such failure for thirty (30) days after written notice from OHPD, as applicable, specifying the nature and extent of any such default with opportunity to cure; 12.4.5 The failure of iINT to perform or to observe any nonmonetary covenant, obligation or requirement of this Agreement and the continuation of such failure for thirty (30) days after written notice from OHPD specifying the nature and extent of any such default, or, if such default cannot reasonably be cured within such thirty (30)-day period, the failure either (i) to commence to cure such default within such thirty (30)-day period and to diligently continue to pursue such efforts to cure to completion, or (ii) to cure such default within a reasonable time after the expiration of the first thirty (30)-day period, in no event to exceed ninety (90) days after the written notice of default; or 12.4.6 A termination of OHPD-UNT Land Lease resulting from a material default by LTNT thereunder. -47- #4338720.24 12.5 Remedies. 12.5.1 Upon the occurrence and continuance of an Event of Default by OHPD described in Section 12.1, the City or iJNT may elect (after written notice to the Hotel Lender and subject to the Hotel Lender's right to cure) to terminate this Agreement by giving written notice of such termination to OHPD, and this Agreement shall terminate as of the date specified in such notice (which date shall be on or after the date of the notice of termination); provided, however, that the City or LJNT shall have no right to terminate the Agreement or exercise other remedies as stated herein unless the City and LJNT delivered to OHPD a second notice which expressly provides that the City or iINT will terminate or exercise other remedies within thirty (30) days if the default is not addressed as herein provided. 12.5.2 Upon the occurrence and continuance of an Event of Default by OHM described in Section 12.2, the City or LJNT may elect (after written notice to the Hotel Lender and subject to the Hotel Lender's right to cure) to terminate this Agreement by giving written notice of such termination to OHPD, and this Agreement shall terminate as of the date specified in such notice (which date shall be on or after the date of the notice of termination) ; provided, however, that the City or LJNT shall have no right to terminate the Agreement or exercise other remedies as stated herein unless the City and iINT delivered to OHPD a second notice which expressly provides that the City or LJNT will terminate or exercise other remedies within thirty (30) days if the default is not addressed as herein provided. 12.5.3 Upon the occurrence of an Event of Default by the City under Section 12.3, OHPD or LTNT may elect to terminate this Agreement by giving written notice of such termination to the City, and this Agreement shall terminate as of the date specified in such notice (which date shall be on or after the date of the notice of termination); provided, however, that the OHPD or LTNT shall have no right to terminate the Agreement unless the OHPD and UNT delivered to the City a second notice which expressly provides that the OHPD or LTNT will terminate within thirty (30) days if the default is not addressed as herein provided. LTNT and OHPD have entered into a Non-Disturbance and Attornment Agreement which may contain additional rights for OHPD upon a City default under the City Facilities Sublease as set forth in that agreement. 12.5.4 Upon the occurrence of an Event of Default by UNT under Section 12.4, OHPD or the City may elect to terminate this Agreement by giving written notice of such termination to LTNT, and this Agreement shall terminate as of the date specified in such notice (which date shall be on or after the date of the notice of termination); provided, however, that the City or OHPD shall have no right to terminate the Agreement unless the City and OHPD delivered to LTNT a second notice which expressly provides that the City or OHPD will terminate within thirly (30) days if the default is not addressed as herein provided. 12.6 OHM/OHPD's Remedies. Upon the occurrence of any Event of Default by the City or LJNT, and to the extent permitted by law, OHPD may pursue any legal or equitable remedies or remedies, including specific performance and termination of this Agreement, including reasonable attorneys fees, costs, expenses and expert witness fees, as authorized by Applicable Law; provided, however, that OHPD shall have no right to terminate this Agreement unless OHPD delivers to the City and LJNT a second notice which expressly provides that OHPD -48- #4338720.24 will terminate within thirty (30) days if the default is not addressed as herein provided. All remedies in the Section shall be cumulative. 12.7 City's Remedies. Upon the occurrence of an Event of Default by OHPD, the City may pursue any legal or equitable remedy or remedies, including, without limitation, specific performance, damages, (including reasonable attorneys' fees), and termination of this Agreement. Termination or non-termination of this Agreement upon an OHPD Event of Default shall not prevent the City from suing OHPD for specific performance, damages, injunctive relief or other available remedies with respect to obligations that expressly survive termination. Upon termination by the City, the City may occupy the Convention Center, and OHPD shall assign to the City any of its contracts and agreements related to the Convention Center requested by the City to be so assigned. In the event OHPD fails to pay any of the expenses or amounts or perform any obligation specified in this Agreement, then to the extent such failure constitutes an Event of Default hereunder, the City may, but shall not be obligated to do so, pay any such amount or perform any such obligations and the amount so paid and the reasonable out of pocket costs incurred by the City in said performance shall be due and payable by OHPD to the City within thirty (30) days after OHPD's receipt of an itemized list of such costs. The City shall have no right to terminate this Agreement or exercise other remedies as stated herein unless City delivers to OHPD a second notice which expressly provides that the City will terminate or exercise other remedies within thirty (30) days if the default is not addressed as herein provided. All remedies of the City under this Agreement shall be cumulative. 12.8 Accountin�. Upon the termination of this Agreement by reason of a default hereunder, OHPD shall render an accounting to the City and LTNT, and, without diminishing the rights and remedies referred to in Sections 12.5 and 12.7, from and after such date, the City and LJNT shall not have any further rights or obligations under this Agreement. ,. I ,1 ' ' : ' 13.1 Cost Savin�s. Cost savings realized in Development Budget categories for the City Facilities during the course of development thereof may be applied to cost overruns, if any, in other Development Budget categories for the City Facilities (subject to the approval of the City), or, if there are no such cost overruns, the cost savings (other than de minimus amounts) that remain after all revisions to the Convention Center Budget have been made, shall be used by the City for the following purposes in the following priority: (a) pay debt service on the City's debt, (b) establish debt service reserves for the payment of debt service in the next year, or (c) for upgrades to the City Facilities or enhancements to the FF&E for the City Facilities installed therein. 13.2 Shared Costs and Expenses. 13.2.1 For the cost of improvements that are necessary for the development of the Project where such improvements benefit both the Hotel and Restaurant and the City Facilities, if the benefits if such improvements to the City Facilities and Hotel can be reasonably ascertained, subject to the mutual approval of the City, LTNT and OHM, the costs and expenses -49- #433872d.24 of such shared improvements shall be allocated to the Hotel and Restaurant and the City Facilities in amounts that reflect the respective benefits to each; and 13.2.2 Where the shared benefits to the City Facilities and Hotel of costs and expenses cannot be reasonably ascertained, the costs and expenses of such shared improvements shall be allocated between the Hotel and City Facilities on a fifty-fifty basis. 13.3 Monthlv Draw Requests. OHM's requests for payments that are due and payable on contracts with the Contractors for the City Facilities, shall be made by OHM in written draw requests given monthly by OHM to the City during the term of this Agreement. Each such draw request shall include documentation of all costs and expenses in reasonably sufficient detail to permit the City to determine the appropriateness of such reimbursement payment and, with respect to draw requests during the Period of construction of the City Facilities, shall include a certification by the Project Architect of the status of completion of the City Facilities in accordance with the Construction Plans, and a partial release of inechanic's liens from the General Contractor with respect to all portions of the Project for which payment to the General Contractor has been made. The City shall pay the amounts set forth in such draw requests to, or as directed by, OHM within thirty (30) days after receipt of each such draw request. 13.4 City Pavments. In any instance in which this Agreement provides that the City shall make payments to or at the direction of OHM within thirty (30) days of receipt of an invoice, draw request or the like, the City shall endeavor to make such payment within forty-five (45) days or such other Phase less than forty-five (45) days to the extent reasonably possible in light of the City's procedural requirements, but in all events such payments shall be made within no more than forty-five (45) days after the City's receipt of the applicable documentation. I '� :�I lf [�11 �:� \�I MISCELLANEOUS 14.1 Naming Ri�hts. The City has the exclusive authority, control and rights in selecting the name of the Convention Center as a whole or for any portion thereof. 14.2 Signa�e on Hotel. OHM/OHPD will attempt to include a reference in the Hotel signage in form and design acceptable to LJNT, indicating "University of North Texas," but the Parties understand and acknowledge that such signage shall be at the discretion of the Hotel Franchisor pursuant to any Approved Franchise. The Parties agree that the name of the Hotel shall be designed to take advance of the sales and marketing recognition in the franchise reservation system, Global Distribution System. 14.3 Coordination with UNT Colle�e of �"[��r��li�i� Hosnitality and Tourism. OHM will coordinate with UNT for hospitality sponsorship programs for the benefit of LTNT College of Merchandising, Hospitality and Tourism students and shall provide for and support such University programs "hands on" participation in hospitality management of the Property with a designated room for seminars and other elements. OHM and LTNT will abide by the -50- #4338720.24 Guidelines for Hotel Labs and Hotel Internships in substantially the form as set forth on Exhibit "H" attached hereto and made a part hereof for all purposes. 14.4 Standard of Care. In performing its services hereunder with respect to development and construction of the Project, OHM makes no representations or warranties, express or implied, regarding the sufficiency of any design, plans or drawings prepared by others, but agrees to work with such persons to correct such designs, plans or drawings with such corrections to be made at no expense to UNT and at no additional expense to the City if and to the extent such corrections are not required due to the fault of the City, or its employees, agents, or other contractors or consultants. Any responsibility of OHM hereunder for development and construction of the City Facilities shall be for services directly performed by it; shall be limited solely to deficiencies that are directly attributable to OHM's failure to exercise the reasonable care usually exercised by individuals and firms providing similar services; and in no event shall OHM be liable for defects in materials or workmanship in the City Facilities. OHM shall use reasonable good faith to protect the economic interests of the City and LTNT with respect to design, development and construction of the Project. Upon termination of the OHPD-LTNT Land Lease or earlier termination of the Project, OHPD and OHM, as applicable, shall assign (i) to iJNT all warranties from the Contractors and any and all suppliers of goods and/or services to the Hotel (for OHPD to use in connection with its obligations to maintain and repair the Hotel as the OHPD thereo�, and (ii) to the City all warranties from the Contractors and any and all suppliers of goods and/or services to the City Facilities. OHPD and OHM shall cooperate fully with the City and UNT in pursuing such warranties, including without limitation, providing copies of documentation needed to support such claim. 14.5 Contractors, Specialists and Consultants. OHPD and OHM shall use reasonable care to ensure that all contractors and professionals selected in connection with the design and construction of the Project shall be highly qualified to do the work they are engaged to perform, and OHPD and OHM shall make reasonable inquiries as to such persons' background, experience and reputation to assure they are well qualified to undertake such work. 14.6 Operation and Maintenance of the Hotel. OHPD shall continuously operate and maintain the Hotel in an Upscale Manner for the term of the City-iJNT Land Lease. OHPD's obligation to operate and maintain the Hotel in an Upscale Manner shall survive the expiration of this Agreement and shall be in effect throughout the primary term and any extension of the OHPD-UNT Land Lease pursuant to the terms of the OHPD-LJNT Land Lease. 14.7 Assi�nment. The Parties recognize that IJNT and the City have selected OHPD because of its unique abilities to develop the Project, therefore OHPD shall have the right, with the prior written consent of LTNT and the City which shall not be unreasonably withheld, to assign its rights and obligations under this Agreement to an Affiliate. For purposes of this Agreement, "Affiliate" shall mean, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, ten percent (10%) or more of the capital stock having ordinary voting power in the election of directors of such Person, (b) each Person that controls, is controlled by or is under common control with such Person, and (c) in the case of individuals, the immediate family members, spouses and lineal descendants of individuals who are Affiliates of the Person. For purpose of this definition, "control" of a Person shall mean the possession, directly or indirectly, of the -51- #4338720.24 power to direct or cause the direction of its management or policies, whether through the ownership of voting shares or interests, by contract, by virtue of being an executive officer or a director or otherwise. A permitted assignment by any Party of its interests in this Agreement shall not relieve the assigning Party from its obligations under this Agreement unless the nonassigning Parties shall expressly consent in writing to any such release. Any assignee of any Party's rights under this Agreement, as a condition of such assignment, shall execute an assumption of the assigning Party's duties and obligations under this Agreement, such assumption to be in form reasonably acceptable to the other Parties to this Agreement. 14.8 Brokers. Each party represents to the other party that it has not employed or retained any broker or finder in connection with the lease of any property and/or transaction contemplated hereby. 14.9 Conflicts. In the event any one or more of the provisions contained in this Agreement conflict with any one or more of the provisions contained in any one or more of the Related Agreements, the provision(s) of the specific Related Agreement(s) shall control. 14.10 Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument. 14.11 Entire Agreement. This Agreement and the agreements described herein constitute the entire agreement among the Parties with respect to the transactions covered in this Agreement. There is no other collateral oral or written agreement among the Parties that in any manner relates to the subject matter of such agreements. This Agreement supersedes the Memorandum of Preliminary Understanding between the Parties dated January 11, 2012. 14.12 University Liability. The University does not assume and does not have nor is it subject to any liability or monetary obligation under this Agreement of any kind or in any amount or for any cause. 14.13 City Liability. This Agreement is not intended to and does not create or constitute a debt or financial obligation of the City except from the sources herein expressly provided. Any and all amounts payable by City hereunder are payable solely and exclusively from amounts provided in the City Financing Contribution and from the sources of such funds. 14.14 Governing Law. The validity of this Agreement and any of its terms and provisions, as well as the rights and duties of the Parties, shall be governed by the laws of the State of Texas; and venue for any action concerning this Agreement shall be in the State District Court of Denton County, Texas. 14.15 General Provisions. 14.15.1 Contractor Failure. OHM shall, subject to exhaustion of all applicable performance bonds, insurance policies and contractor or subcontractor funds, be solely responsible for malfeasance, neglect or failure of any Contractors or suppliers to meet their schedules for completion or to perform their duties and responsibilities under their respective agreements with respect to the FF&E for the City Facilities. -52- � 14.15.2 Cancellation. The City acknowledges that cancellation and return of FF&E for the City Facilities cannot be made except under terms and conditions acceptable to the manufacturer and/or vendor thereof, and that custom items of FF&E for the City Facilities are non-cancelable and non-returnable. 14.15.3 No Warranty. OHM shall use reasonable diligence in making recommendations regarding the procurement of FF&E for the City Facilities, but OHM extends no guarantees and makes no warranty, express or implied, of inerchantability or fitness for a particular purpose or otherwise with respect to any of such FF&E for the City Facilities purchased hereunder. Claims made against such guarantees as may be offered by the manufacturers or vendors of FF&E for the City Facilities must be settled directly with the manufacturers or vendors. OHM shall assist and coordinate with the City, however, in the processing, prosecution and enforcement of such claims provided it incurs no additional costs, expenses or liability on account thereof. Where OHM has not previously paid for FF&E for the City Facilities which has been received by the City and, if prior to such payment, OHM determines that the goods are defective or otherwise do not conform to the contract with such supplier, OHM shall not pay for such FF&E for the City Facilities and shall make all necessary provisions, at the vendor's expense, for return of such FF&E for the City Facilities to the supplier. 14.15.4 Risk of Loss. Unless otherwise agreed to in writing, all FF&E for the City Facilities shall be shipped to the City Facilities or a warehouse arranged for by OHM on behalf of the City. OHM shall provide for all such FF&E for the City Facilities to be shipped "DDP (Denton, Texas, USA)" pre-paid. 14.15.5 Overa�es. The City hereby acknowledges that it is customary for manufacturers to ship additional quantities of certain types of FF&E (fabric, wallpaper, carpet, etc., commonly referred to as "attic stock") above and beyond the actual amount ordered. This is a common practice in the industry over which OHM has no control. The City agrees to accept such overages and to pay for its share of the same; provided, however, in no event shall the City ever be liable for any costs in excess of the City Financing Contribution without the prior written approval of the City. All overages in FF&E for the City Facilities shall be the property of the City but shall be used exclusively by OHPD for the repair and maintenance of the City Facilities. Allowances for such overages shall be included in the FF&E Budget. 14.15.6 OHPD Indemnity. OHPD hereby indemnify and agrees to hold UNT and the City, and their respective officers, directors, members, agents and employees, harmless and defend from and against any and all loss, cost, liability, claim, demand, damage or expense (including, without limitation, reasonable attorneys, fees and litigation expenses) which any of the foregoing indemnitees may incur or sustain or which may be claimed or asserted against any of the foregoing on account of, in connection with, or arising from injuries, death, loss or damage to persons or property (including, without limitation, the Hotel) including any claim for payment or demand for payment caused by or in any way whatsoever arising out of, or resulting from (i) any negligence on the part of OHPD or its members, officers, directors, contractors, agents, and employees arising out of or resulting from this Agreement or any of the other agreements contemplated to be entered into with respect to the Project as described herein; (ii) any FF&E for the City Facilities that OHPD has purchased in the name of the City that does not substantially -53- #433872d.24 conform with the FF&E Specifications due to the negligence, carelessness or willful misconduct of OHPD, (iii) any material breach of any representation or warranty of OHPD herein contained, or (iv) any claim arising out of employment, non-employment or discharge of OHPD's employees or agents; provided, however, the City or LTNT, as applicable, shall seek recovery first from any insurance proceeds which are made available with respect to the liabilities and losses described above, prior to seeking any recovery directly from OHPD. This indemnity shall survive the expiration or termination of this Agreement. 14.15.7 OHM Indemnity. OHM hereby indemnify and agrees to hold UNT and the City, and their respective officers, directors, members, agents and employees, harmless and defend from and against any and all loss, cost, liability, claim, demand, damage or expense (including, without limitation, reasonable attorneys, fees and litigation expenses) which any of the foregoing indemnitees may incur or sustain or which may be claimed or asserted against any of the foregoing on account of, in connection with, or arising from injuries, death, loss or damage to persons or property (including, without limitation, the Hotel) including any claim for payment or demand for payment caused by or in any way whatsoever arising out of, or resulting from (i) any negligence on the part of OHM or its members, officers, directors, contractors, agents, and employees arising out of or resulting from this Agreement or any of the other agreements contemplated to be entered into with respect to the Project as described herein; (ii) any FF&E for the City Facilities that OHM has purchased in the name of the City that does not substantially conform with the FF&E Specifications due to the negligence, carelessness or willful misconduct of OHPD, (iii) any material breach of any representation or warranty of OHPD herein contained, or (iv) any claim arising out of employment, non-employment or discharge of OHM's employees or agents; provided, however, the City or iJNT, as applicable, shall seek recovery first from any insurance proceeds which are made available with respect to the liabilities and losses described above, prior to seeking any recovery directly from OHM. This indemnity shall survive the expiration or termination of this Agreement. 14.16 Extensions of Deadlines. The parties may agree in writing to reasonable extensions of any deadlines set forth in this Agreement; provided, however, that in no event shall any extension exceed one hundred eighty (180) days, unless agreed in writing by the Parties. 14.17 Independence of Action. It is understood and agreed by and among the Parties that in the design, construction and development of the Project and any of the related improvements described herein, and in the Parties' satisfaction of the terms and conditions of this Agreement, that each party is acting independently, and the City and LTNT assumes no responsibility or liability to any third parties in connection to OHPD's obligations hereunder. 14.17.1 No Third Party Benefciaries. The provisions of this Section 14.15 are solely for the benefit of the Parties hereto and are not intended to create or grant any rights, contractual or otherwise to any third person or entity. 14.17.2 Survival. The entirety of this Section 14.15 shall survive the termination of this Agreement. 14.18 No Joint Venture. It is acknowledged and agreed by and among the Parties that the terms hereof are not intended to, and shall not be deemed to, create any partnership or joint -54- #433872d.24 venture among the Parties. The past, present and future officers, elected officials, employees and agents of the City do not assume any responsibilities or liabilities to any third party in connection with the development, design, construction or operation of any of the improvements contemplated by this Agreement. In addition, OHPD and iJNT acknowledge and agree that there shall be no recourse against any of the aforesaid parties, none of whom will incur any liability in respect to any claims based upon or relating to the Agreement. 14.19 Notices. All notices or other communications required or desired to be given with respect to this Agreement shall be in writing and shall be delivered by hand or by courier service, sent by registered or certified mail, return receipt requested, bearing adequate postage, or sent by nationally recognized overnight delivery service (such as Federal Express or UPS), or sent by facsimile, and properly addressed as provided below. Each notice given by mail shall be deemed to be given by the sender when received or refused by the Party intended to receive such notice; each notice delivered by hand or by courier service shall be deemed to have been given and received when actually received by the Party intended to receive such notice or when such Party refuses to accept delivery of such notice; each notice given by overnight delivery service shall be deemed to have been given and received on the next business day following deposit thereof with the overnight delivery company; and each notice given by facsimile shall be deemed to have been given and received upon transmission, provided confirrnation of receipt is received back by the sending facsimile prior to 5:00 p.m. local time at the sending location, or on the next business day if after 5:00 p.m. local time at the sending location. Upon a change of address by either Party, such Party shall give written notice of such change to the other parties in accordance with the foregoing. Inability to deliver because of changed address or status of which no notice was given shall be deemed to be receipt of the notice sent, effective as of the date such notice would otherwise have been received. If intended for the City: Attn: City Manager City of Denton, Texas 215 E. McKinney Denton, Texas 76201 Telephone: (940) 349-8200 Facsimile: (940) 349-8596 If intended for OHPD: OHPD Tim O'Reilly 2808 S. Ingram Mill, Bldg. A-104 Springfield, MO 65804 Telephone: (417) 851-8700 Facsimile: (417) 890-1778 #4338720.24 With Copies to: Attn: City Attorney City of Denton 215 E. McKinney Denton, Texas 76201 Telephone: (940) 349-8200 Facsimile: (940) 382-7923 With Copies to: Craig Preston, Esq. O'Reilly, Jensen & Preston, LLC 2808 S. Ingram Mill Road, Bldg A-104 Springfield, MO 65804 Telephone: (417) 890-1555 Facsimile: (417) 890-1778 -55- If intended for UNT: With Copies to: University of North Texas Vice President for Finance and Administration 1155 Union Circle #310500 Denton, TX 76203 Telephone: (940) 565-2055 Facsimile: (417) 565-4779 University of North Texas System Office of General Counsel 1901 Main Street Dallas, TX 75201 Telephone: (214) 752-5970 Facsimile: (214) 752-5980 14.20 Severability. In the event any section, subsection, paragraph, sentence, phrase or word herein is held invalid, illegal or unconstitutional, the balance of this Agreement, shall be enforceable and shall be enforced as if the Parties intended at all times to delete said invalid section, subsection, paragraph, sentence, phrase or word; and such invalid, illegal, unconstitutional or unenforceable section, subsection, paragraph, sentence, phrase or word shall be substituted by a section, subsection, paragraph, sentence, phrase or word as near in substance thereto as may be valid, legal, constitutional and enforceable. 14.21 Time. Time is of the essence for the performance of any obligation under this Agreement or the Related Agreements. If any date or Phase for performance provided for herein ends on a Saturday, Sunday, or legal holiday of the City of Denton, Texas, then the applicable date or Phase will be extended to the first day following such Saturday, Sunday, or legal holiday. 14.22 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall comprise but a single document. SIGNATURE PAGE FOLLOWS -56- #4338720.24 .�, ]J�Is�'L��,i�� c�ra il�i� ��`l ��y �[`��°;� �, :, �[)1�� ATTEST: � �` ° " �f �" , ,� � By: � , � �� '� � : �� ,,� �� r � �: �� :� i� `�f 1�- Ci� wALTERS, C.1`1,Y �F ��I� 1�:P�°ARY O'REILLY HOTEL PARTNERS — DE1V 1o1Vy LLC A Missouri limited liability company By: Tirn O'Reilly Its: Manager . ;�, � . . By: Lee F. Jackson Its: Chancellor � . � . . . . : Tim O'Reilly Its: Chief Executive Officer & Manager � #4338720.24 CITY OF DENTON, TEXAS � � � � .. Ba: �� o. °� � Its:_ �:�� r_. � �" .�� ....,� � EXECUTED on this � da of � , 2013. _ Y W • � • .. : Its: ATTE5T: : . . • • .• O'REILLY HOTEL PARTNERS — DENTON,LLC A Mi� � i�•i limited �i{r �lif e>i7��r�� t.. . � - � $ .� �. }�y: � � � �k..} Tim C. 'l��i[Nyr k Its: N[��:��;i• . � �. . By: Lee F. Jackson Its: Chancellor €)'Itf�,I1 ��Y' HO�f�1`��141, '['Y° MANAGEMENT, LLC .� � � 2 � . �j ��,� � ; B�f �N�...... � , .- �...�..�.... __ _ �...�. 'I'i1 � ��']��i�l�r Its � `I�G��°�;��:�.Yrtive Officer & Manager -57- #4338720.23 E�F � t.�"l:"�� an il�is � cla� ��a�` .t,� �'{�l �. . Its: ATTEST: : , . • _ .• O'REILLY HOTEL PARTNERS — DE1V lO1Vy LLI� A Missouri limited liability company ��v: Tim O'Reilly Its: Manager UT�iVE �� `Y t)F �I��.TH TEXAS ��- By: Lee F. � aCkson Its: Chancellor • � �� , �R ♦ ♦ ♦. : F3�. Tim O'Reilly Its: Chief Executive Officer & Manager -57- #4338720.24 • 1� • . List of Exhibits: Exhibit 66 A 99 _ CITy°lJ1VT LanU LPa.SP C1 Exhibit "B" _ City-OHPD Convention Center Sublease Exhibit 66�99 _ OHPD°LJ1VT L�I�I�.A LPaSPs E�117�1¢ 66D" _ preliminary Site Plan �, � Exhibit "E" — Professional Services Agreement — CMA E�chibit 66�99 _ 71I.O1PSSIOn�A1 SeI�VICe+S AgT�PPYT�einl ° C1ICAAALPCL t Exhibit 66G" _ Contractor Payment Ciuidelines Exhibit 66H" _ Guidelines for Hotel Labs and Hotel Internships #4338720.24 PROFESSIONAL SERVICES AGREEMENT FOR CONSTRUCTION MANAGER-AGENT Exhibit E of Contract # 5446 STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the lOth day of December, 2013, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and O'Reilly Hospitality Management with its corporate office at 2808 S. Ingram Mill, Bldg. A-104, Springfield, MO 65804 hereinafter called "Construction Manager-Agent (CMA)," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION I EMPLOYMENT OF CONSTRUCTION MANAGER-AGENT (CMA) The Owner hereby contracts with the CMA, which construction manager-agent services are defined within Texas Government Code 2269.201, and 2269.202. The service shall include the following, but not limited to the following: 1) provide consultation and administration services during the design and construction phase, 2) manage multiple contracts with various construction prime contractor(s). The CMA hereby agrees to perform all services as described within this document and within Article III and Article IV of the Master Development Agreement entered into as of December 10, 2013 by and between the City of Denton, Texas, the University of North Texas, O' Reilly Hotel Partners Denton, and O'Reilly Hospitality Management herein defined as the "Master Development Agreement." This agreement shall also serve as Exhibit H of the Master Development Agreement. The Construction Manager-Agent represents the Owner in a fiduciary capacity, as stipulated within Texas Government Code 2269.204. SECTION II SCOPE OF SERVICES The CMA shall perform the following services in a professional manner: A. The CMA shall perform all those services as necessary and as described in the Master Development Agreement. Page 1 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly�Developers Agreement\December 17 Documents (final)\Word Version of Documents�Exhibit E- PSA Construction Manager Agent 12-10-13 PINAL with dates completed.docx B. If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of the Master Development Agreement will control over the terms and conditions of the any attached exhibits. SECTION III ADDITIONAL SERVICES Additional services to be performed by the CMA, if authorized by the Owner, which are not included in the above-described Basic Services, are described as follows: A. During the course of the Project, as requested by Owner, the CMA will be available to accompany Owner's personnel and contractors when meeting with the Texas Commission on Environmental Quality, U.S. Environmental Protection Agency, or other regulatory agencies. The CMA will assist Owner's personnel and contractors on an as-needed basis in preparing compliance schedules, progress reports, and providing general technical support for the Owner's compliance efforts. B. Assisting Owner or contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by CMA on a fee basis negotiated by the respective parties outside of and in addition to this Agreement, and stipulated in Section VI of this agreement. C. Assist Owner in obtaining and reviewing sampling, testing, or analysis services beyond that specifically included in Basic Services. D. Assist Owner in obtaining and reviewing copies of computer aided drafting (CAD) electronic data bases, drawings, or files for the OWNER's use in a future CAD system. E. Assist Owner in preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. F. Assist Owner is appearances before regulatory agencies or courts as an expert witness in any litigation with third parties or condemnation proceedings arising from the development or construction of the Project, including the review of engineering data and reports for assistance to the Owner. G. Assist the Owner in obtaining and reviewing geotechnical investigations for the site, including soil borings, related analyses, and recommendations. H. The CMA shall assist the Owner in ensuring compliance with Attachment G to the Master Development Agreement (Contractor Payment Guidelines). I. The CMA shall assist the Owner with the evaluation of the respondents (General Contractors) to the solicitation for the construction of the Convention Center, in an advisory capacity. The Owner shall procure the construction services of a general contractor or trade contractor in accordance with the provisions of Texas Government Code 2269.206. . _-. S:\City Manager's Office\cmoUon Fortuneu-lotel & Convention Center\Orei[ly\Developers Agreement\December 17 Documents (final}\Word Version of Documents\Exhibit E- PSA Construction Manager Agent 12-10-13 FINAL with dates completed.docx J. Other services within the scope of this project as requested by the Owner. SECTION IV LIMITATIONS ON CONSTRUCTION MANAGER-AGENT The CMA may not: 1) self-perform any aspect of the construction, rehabilitation, alteration, or repair of the facility; 2) be a party to a construction subcontract for the construction, rehabilitation, alteration, or repair of the facility; or 3) provide or be required to provide performance and payment bonds for the construction, rehabilitation, alteration, or repair of the facility. However, the CMA shall assist the Owner in requiring all construction contractors to comply with Chapter 2253 of the Texas Government Code (Public Works Performance and Payment Bonds). SECTION V PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the Owner and the CMA and upon issue of a notice to proceed or issuance of a Purchase Order by the Owner, and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the Owner. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CMA shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the Owner, acting through its City Manager or his designee. SECTION VI COMPENSATION A. COMPENSATION TERMS: "Subcontract Expense" is defined as expenses incurred by the CMA in employment of others in outside firms for services under the Master Development Agreement. 2. "Direct Non-Labor Expense" is defined as that expense for any assignment incurred by the CMA for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CMA herein, the Owner agrees to pay for the CMA Services as defined in the Master Development Agreement, a maximum fee equal to 3% of the total project costs, which shall include all hard and soft costs, for the design, construction and development of the Convention Center. This not-to-exceed fee shall be inclusive of the final cost of the design for Page 3 S:\City Manager's OTfice\cmoUon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (tinal)1Word Version of Documents\Exhibit E- PSA Construction Manager Agent 12-]0-13 FINAL with dates completed.docx the Convention Center project, as defined within Exhibit F to the Master Development Agreement for the Project, and shall be exclusive of fees and costs of architects and engineers to complete stamped architectural drawings and fees and for other Subcontract Expense required for the design, development, inspection, procurement and installation of FF&E and construction of the Convention Center. After expiration of the Feasibility Deadline and Financing Viability Deadline, and upon election of all Parties to proceed with the project as defined in the Master Development Agreement, the Design Professional shall continue with the final design of the project, completing the stamped architectural drawings for the project, and the CMA shall assist the owner for construction management services as described herein as required in the Master Development Agreement. The Owner shall compensate the CMA for all services during Design Development and thru Construction completion as follows: BASIC SERVICES As stipulated in Exhibit F of the Master Development Agreement, the fee for Phase I of the Design Project 35% Completion of Design shall not exceed: $200,000. Upon election of both parties to proceed with Phase(s) II-IV of the Design project, the fees shall be negotiated and defined as indicated Exhibit F of the Master Development Agreement. The fee for the Construction Manager /Agent Services shall equal 3% of the total costs for the Convention Center. The not-to-exceed fee for the CMA services shall be included in the total project costs of the Convention Center project and shall be exclusive of fees and costs of architects and engineers to complete stamped architectural drawings and fees and for other Subcontract Expense required for the design, development, inspection, procurement and installation of FF&E and construction of the Convention Center. The not-to-exceed CMA fee will be fully determined upon final design of the project, and determination of the Final Convention Center Budget following the award of the construction contract for the Convention Center. The CMA fee will be paid in equal monthly installments beginning at the start of construction of the Convention Center. At no time will the CMA fee exceed the actual development cost of the Convention Center. ADDITIONAL SERVICES For additional services authorized in writing by the Owner in Section III, the CMA shall be paid based on the Schedule of Charges at an hourly rate as stated below. Payments for additional services shall be due and payable upon submission by the CMA, and shall be in accordance with Article V hereof. Statements shall not be submitted more frequently than monthly. Compensation for Additional Services is as follows: Rate for Additional Services shall not exceed: $175 per hour REIMBURSABLE EXPENSES Page 4 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit E- PSA Construction Manager Agent 12-] 0-13 FINAL with dates completed.docx Reimbursable Expenses shall be compensated for expenses (travel, copies, etc.) related to the Convention Center design project, and shall not exceed a total of $15,000. Invoices for reimbursable expenses shall be submitted to the Owner in a timely manner. Partial payments to the CMA will be made on the basis of detailed monthly statements rendered to and approved by the Owner through its City Manager or his designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The Owner may withhold the final five percent (5%) of the contract amount until completion of the Project. Nothing contained in this Article shall require the Owner to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The Owner shall not be required to make any payments to the CMA when the CMA is in default under this Agreement. It is specifically understood and agreed that the CMA shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the Owner for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the Owner. The CMA shall not proceed to perform the services listed in Section III "Additional Services," without obtaining prior written authorization from the Owner. C. PAYMENT: If the Owner fails to make payments due the CMA for services and expenses within thirty (30) days after receipt of the CMA's undisputed statement thereof, the amounts due the CMA will be increased by the rate of one percent (1%) per month from the said thirtieth (30th) day or the rate established within Texas Government Code 2251 (Prompt Payment Act), and, in addition, the CMA may, after giving seven (7) days' written notice to the Owner, suspend services under this Agreement until the CMA has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the Owner to pay any late charges set forth herein if the Owner reasonably determines that the work is unsatisfactory, in accordance with this Section V, "Compensation." SECTION VII OBSERVATION AND REVIEW OF THE WORK The CMA will exercise reasonable care and due diligence in discovering and promptly reporting to the Owner any defects or deficiencies in the work of the CMA or any subcontractors or sub-CMAs. SECTION VIII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CMA (and CMA's subcontractors or sub-CMAs) pursuant to this Agreement are instruments of service, and shall become the property of the Owner upon the termination of this Agreement. The CMA is entitled to retain copies of all such documents. The documents prepared and furnished by the CMA are intended only to be applicable to this Project, and Owner's use of these documents in other projects shall be at Owner's sole risk and expense. In the Page 5 S:\City Manager's Oflice\cmoUon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit E- PSA Construction Manager Agent 12-]0-13 F1NAL with dates completed.docx event the Owner uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CMA is released from any and all liability relating to their use in that project. SECTION IX INDEPENDENT CONTRACTOR CMA shall provide services to Owner as an independent contractor, not as an employee of the Owner. CMA shall not have or claim any right arising from employee status. SECTION X INSURANCE During the performance of the services under this Agreement, CMA shall maintain the insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A or above, and in accordance with Article 10 of the City of Denton General Conditions for Agreement for Architectural and Engineering Services. SECTION XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving one party's disagreement may include the other party to the disagreement without the other's approval. SECTION XII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the CMA, its employees, associates, agents, subcontractors, and sub-CMAs for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the CMA, its employees, subcontractors, agents, and CMAs. SECTION XIII NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CMA: Tim O'Reilly To Owner: City of Denton Page 6 S:\City Manager's Office\cmoVon Fortune\I3otel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit E- PSA Construction Manager Agent ]2-] 0-13 FINAL with dates completed.docx 2808 S. Ingram Mill, Bldg. A-104 Springfield, MO 65804 George Campbell, City Manager 215 East McKinney Denton, Texas 76201 purchasing�,cityofdenton.com All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. SECTION XIV SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken proyision. SECTION XV PERSONNEL A. The CMA represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the Owner. CMA shall inform the Owner of any conflict of interest or potential conflict of interest that may axise during the term of this Agreement. B. All services required hereunder will be performed by the CMA or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. SECTION XVI ASSIGNABILITY This agreement shall be binding upon and ensure to the benefit of the City and the CMA and their respective successors and assigns, provided however, that no right or interest in the agreement shall be assigned and no obligation shall be delegated or transfer of any interest by the CMA (whether by assignment, novation, or otherwise) without the prior written consent of the Owner. Any attempted assignment or delegation by the CMA shall be void unless made in conformity with this Section. The Agreement is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. SECTION_XVII MODIFICATION Page 7 S:\Ciry Manager°s O�ce\cmoVon FortuneU-Iotel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (final)\Word Version af Documents\Exhibit E- PSA Construction Manager Agent 12-10-13 PINAL with dates compieted.docx No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. SECTION XVIII MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: None B. The Owner shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CMA shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the CMA shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the Owner similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the Owner unless the audit reveals an overpayment of 1% or greater of the CMA fees. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the CMA which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the Owner's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. C. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Tim O'Reilly, Steve Minton, Scott Shultz, David Horst, and Bob Fugazi. However, nothing herein shall limit CMA from using other qualified and competent members of its firm to perform the services required herein. D. CMA shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, CMA shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the Owner. E. The Owner shall assist the CMA by placing at the CMA's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and Page 8 S:\City Manager's Office\cmoUon Fortune\Hotel & Convention Center\Orei(ly\I7evelopers Agreement\December 17 Dacuments (final}\Word Version of Documents\Exhibit E- PSA Construction Manager Agent 12-10-13 FINAL with dates completed.docx arranging for the access thereto, and malce all provisions for the CMA to enter in or upon public and private property as required for the CMA to perform services under this Agreement. � � ' .. The validity of the Agreement and any of its terms and provisions, as well as the rights and duties of the Parties, shall be gaverned by the laws of the State of Texas; and venue for any action concerning this Agreement shall be in the State District Court of Denton County, Texas. � I ' ' This Agreement, including the City of Denton General Conditions to Agreement for Construction- Manager Agent services, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms af their agreements, and supersedes all prior conternparaneous offers, promises, representations, negotiatians, discussians, cammunications, and agreements which may have been made in cannection with the subject matter hereof. This Agreement, consisting of _-� pages includes this executed agreement and the following docurnents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: City of Denton General Conditions to Agreement for Construction Manager Agent Services. Attachments A through B. Attachment A— City af Denton Conflict of Interest Form, Attachment B— City of Denton Substitute W-9 Form. • f' •� �.�� .� � �,� � � ��' � BY: - r_ .�� _ � �..e. _ �.�1s�l��E C. CAMPBELL CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY. ,.�-�� `�� f� '� `�� .�� 4� Arri\oV�L LiS lo LL'Vt1L i'�ll\1V1. A1V11t11JV1tV1�JJy C1T1 t1d loItLVEl � p' , r.,� ..`""�.�, �. .��r°.�' _ „ ✓'? � , BY: " � �'', ,�"`✓� � � y�' /,�� =� .�..�.._._ �" ,�^' ,.M �= `= �� rr Page 9 \\CODAD\Departments\City Manager's Office\cmo\Jon Fortune�I-Iotel & Convention Center\Oreilly�Developers Agreement\December 10 Documents\Exhibit E CMA Convention Center Project 112-10-13 FINAL.docx � �� r� �, �- � �° � ��'w` � ��*�,.,�'�� °°��' ��.�.� _ � '""� ,'�` �:;'}'�� .r �!? � , � � BY � � � � , ,� a ��.�-� s: �� j� , � ,� fi�� .�. � �, �° � � i ir�t�'s ��lii��:t�/l�e��rt�� aCtr��: �� b 1��A� I;{..'.a ��rL ��'�� ,�` ( 'ignature} r�rti ;, ��,��°�� Gre,r� ��. � � ; �......,. ....- P WITNESS: �_ �; �g � � . � �� BY: !' ' �`'�'1�-�� .��'��,�'�'� _�'�� `� 4t1� � �,`_��t�'��✓��° �� ,�� 1� .��° ��t��-� l�� 4, I' . : - 1 \\CODAD�Departments\City Manager's Office\cmoUon Fortune\Hotel & Convention Center\Oreilly�Developers Agreement�December 10 Documents�Exhibit E CMA Convention Center Project l 12-10-13 FINAL.docx CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR CONSTRUC7'ION MANAGER-AGENT ARTICLE 1. CONSTRUC'I'ION MANAGER-AGEN'I' RESPONSIBILITIES 1.1 The services consist of those services for the Project (as defined in the agreemenY (the "AgreemenP') and proposal (the "Proposal") to which these General Conditions are attached) perforrned by the Architect or Engineer (hereinafter called the "CMA") or CMA's employees and CMAs as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The CMA will perfonn all Services as an independent contracYOr to the prevailing professional standards consistent with the level of care and skill ordinarily exercised by members of the same profession currently practicing in the same locality under similar conditions, including reasonable, infortned judgments and prompt timely actions (the "Degree of Care"}. The Services shall be performed as expeditiously as is consistenY with the Degree of Care necessary for che orderly progress of the ProjecY. Upon eequest of the Owner, the CMA shall submiY for the Owner's approval a schedule for the performance of the Services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for [he Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule and approved by Yhe Owner shall not, except for eeasonable cause, be exceeded by the CMA or Owner, and any adjustments to this schedule shall be mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 2.1 BASIC SERVICES DEFINED The CMA's Basic Services consist of Yhose described in Sections 11-]V of the Conteact and shall include without limitation normal services necessary to ensuee corrrplete construction management services as defined , as described by and eequired in Texas Govemment Code 2269.201, and 2269.202. The Basic Services may be modified by the Agreement. 2.3 DESIGIV PHASE 23.1 The CMA shall assist the Owner with review of approved Schematic Design Documents and any adjustments authorized by the Owner in the program, sche- dule or consteucYion budget, the CMA shall coordinate for appeoval by the Owner, Desig� Development Documents consisting of drawings and other documents Yo fix and describe the size and charactee of che Project as to architectural, structural, mechanical and electrical systems, maYeeials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and eegulations. Notwithstanding Owner's approval of the documents, CMA represents that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project. 23Z The CMA shall advise and assist the Owner of any adjustrnents to the preliminary estimate of Construction Cost. 2.4 CONSTRUCTION DOCUMENTS PHASE 2.4.1 Based on the approved Design Development Documents and any further adjtrstments in the scope or quality of the Project or in the construction budget authorized by the Owner, the CMA shall review, and submit for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail requirements for the construction ofthe Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. The CMA shall provide the Owner with any recommendations oe suggesYed modifications to the Construction Documents. 2.4.2 The CMA shall provide assistance to the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the Conditions of the contract, and the form of Agreement between the Owner and construction contractor, as requested by the Owner. 2.4.3 The CMA shafl review and advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. 2.4.4 The CMA shall review and assist the Owner in connection with the Owmer's responsibility for filing documents required for Yhe approval of govemmental auYhorities having jurisdicYion over 4he Project. %��717�►F."1'Y:tIL�JI Y [IT►`[�I13►`Y'Y:#:�M 117".ZIZ�lU:7'D1��1 �1►Y'l 2.5.1 The CMA, following the Owner's appeoval of the ConstrucYion Documents and of 4he latest preliminary detailed esYimate of ConsYnaction Cost, shall assist the Owner (as an advisor) in peocuring a construcYion conYract for the Project through any procueement method that is legally applicable to lhe Project including without limitation, the competitive sealed bidding process. Althou� the Owner will consider the advice of Yhe CMA, the award of the consYruction contract is in the sole discretion of the Owner. 2.5.2 lf the consYruction conYract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Decailed StacemenY of Probable Construction Costs of the Project submitted by the Design Professional, then the CMA, will review and provide assistance as may be required by the Owner to reduce or modiiy the quantity or quality of the work so that Uie total construction cost of the Project will not exceed the total construction cost set forth in the approved Detailed S[atement of Probable ConsUuction Costs. 2.6 CONSTRUCI'ION P1iASC - ADMINISTRATION OF THE CONSTRUC"I'ION CONTRACT 2.6.1 The CMA's responsibility to provide Services for Ihe oversight of the Conslruction Phase under this Agreement commences with the award of the Contract for Construction and terminates aY tlie issuance to the Owner of the final Certificate for Payment by the Construction Contractor, unless exYended under the terms of Subsection 8.32. 2.G.2 The CMA shall review and submit for approval by the Owner, a detailed adminislration of the Contract for Construction as set forth below. For CMAs the adminislration shall also be in accordance with AIA document A201, General Conditions of the Contract for Constnaction, current as of the date of the Agreement as may be amended by Yhe City of Denton special conditions, unless othervvise provided in the Agreement. Page 11 S:\City Managee's Ofiice\cmoUon Poetune\Hotel & Convention Center\Oreilly\Developers Agreement�December 17 Documents (final)\Word Version of Documents\Exhibit E- PSA Construction Manager Agent 12-10-13 FINAL with dates completed.docx 2.6.3 ConsteucYion Phase duties, responsibilities and limitations of authority of the CMA shall not be restricYed, modified or extended wilhout written agreement of'the Owner and CMA, and as defined within Texas Govemment Code. 2.6.4 The CMA shall be a representative of and shall advise and consult wiYh the Ownee (1) during consYruction, and (2) a4 Yhe Ownee's direction from time to time during the coerection, or warranty period described in the Contract foe ConstrucYion. The CMA shall have authority to acY on behalf of the Owner only to the extent provided in the Agreement and these Geneeal Conditions, unless otherwise modified by written instrument. 2.6.5 The CMA shall observe the construction site �'tz�� r�t° u.s nrys��rrerlx��.�r�mr��sr�f�r�„�+�ff �1�� adrlf crr�crras�a ��_� t� s+°a'�rs�err,(a while constru�tio�� is iis �xix��c��„ �rrd as reasonably necessary while construction is not in �ar�r�;res�, i� �rcc�€ne tan�zlr�r tvitlt tl�e �r�r�r�ss �rici �u�iilt� of its�° �vs��'� �c��rtpleted and to 3eta�i��i�rc itt��c s��ark is being performed in a manner indicating that the wKar�, �vt�cr� �:t:�t��letc�t rs�itl ��° iot �+c��t)�ti�r�cc $vii�� Uae �nr��r�rci I]caa;p�itr€;e�ts, CMA shall prcrw'sti� ��trcr �t w�csl:�y written report of construcYion activity. On ihe basis of on-site observations the CMA shall keep the Owner informed of the progress and quality of the woek, and shall exeecise the Degree of Care and diligence in discovering and promptly reporting to Yhe Owner any observable defects or deficiencies in the work of Contractor or any subcontractors. The CMA represenYs that he/she will follow Degree of Care in performing all Services under the Agreement. The CMA shall ensure promptly cor- rective action is taken to any defective designs or specifications fumished by the Design Professional, with immediate notification to the Owner. The Owner's approval, acceptance, use of or payment for all or any part of the CMA's Services hereunder or of the Project itself shall in no way alter the CMA's obligations or the Owner's rights heeeunder. 2.6.6 The CMA shall not have con[rol over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the woek. The CMA shall not be responsible foe the ContracYor's schedules or failuee to carry out the work in accordance with the Contract Documents except insofar as such failure may result from CMA's negligent acts or omissions. The CMA shall not have control over or charge of acts or omissions of the Contractoe, Subconteactors, or theie agents or employees, or of any other peesons performing portions of Yhe work. The CMA shall ensure prompt notification to the Owner of arry non-conf'orming construction means, methods, techniques, sequences or procedures, or unsafe conditions in connection with the work performance of the General Contractor. The CMA shall immediately notify the Owner of any non-compliance issues with scheduled completion of the project by the General Contractor. 2.6.7 The CMA shall at al I times have access to the work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be peovided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the CMA. Communications by and with the CMA's staffshall be through the CMA. 2.6.9 Based on the CMA's observations at the site of the work and evaluations of the Contractor's Applications for Payment, the CMA shall review and assist the Owner with certification of Yhe amounYs due the Contractor. 2.6.10 The CMA's assistance to the Owner with certification for payment shall constitute a representation to the Owner, based on the CMA's observations at the site as provided in Subsection 2.6.5 and on t}re data comprising the Contractor's Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subjecl to minor deviations from the Contract Documents wr- rectable prior to completion and to specific qualifications expressed by the CMA. The issuance of a Certifica[e for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified. Howevee, the issuance of a Certificate for Payment shall not be a representaYion that the CMA has (1) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose Ure Contractor has used money previously paid on account of the Contract Sum. 2.6.i1 The CMA shall have the responsibility and authority to reject work which does not conform to the Contract Documents. Whenevee the CMA considers it necessary or advisable for implementation of the intent of the Contract Documents, the CMA will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whelher or not such Work is fabricated, installed or completed. However, neither this authority of the CMA nor a decision made in good t'aith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the CMA to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the work. 2.6.12 The CMA shall review and submit for approval or take other appropriate action upon Contractors submittals such as Shop Drawings, Product Data and Samples for the puepose of (1) deterrnining compliance with applicable laws, statutes, oedinances and codes; and (2) determining whethee or not Ure woek, when completed, will be in compliance with the requirements of the Contract Documents. The CMA shall acY wit}r such reasonable peompiness to cause no delay in the work or in the construction of the Owner oe of separate contractors, while allowing sufficient time in the CMA's peofessional judgnent to permit adequate review. Review of such submittals is not conducted for the purpose of deteemining the accuracy arid completeness of other deYails such as dimensions and quantities or for subsYantiating instrucYions foe installation or performance of equipment or systems designed by the Contractor, all of which remain the responsibility of the Con4ractor to the extent required by the Contract Documents. The CMA's review shall not consYitute appeoval of safety peecautions or, unless othenvise specifically stated by [he CMA, of construction means, methods, techniques, sequences or procedures. The CMA's approval of a specific item shall not indicate approval of an assembly of which the item is a componenY. When professional certification of performance characteeisYics of materials, systems or equipment is required by the Contract Documents, the CMA shall coordinate with the Design Professjonal and rely upon such certification to establish that the materials, systems or equipment will meeY the performance criteria required by the Contract Documents. 2.G.13 The CMA shall assist in preparation of Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the CMA as provided in Subsections 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Conteact Documents, and may authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of tlie Contract Time which are not inconsistent with the intent of the Contract Documents. 2.G.14 On behalf of the Owner, the CMA shall conduct inspections to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall assist in obtaining issuance of Certificates of Substantial and Final Completion. The CMA will receive and review written guarantees and related documents requieed by the Contract for ConstrucYion to be assembled by the Contractor and shall issue a final certificaYe for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The CMA shall interpret and provide recommendations on mariers conceming perfortnance of the Owner and Contractor under the requirements of the Conlract Documents on written request of eilher the Owner or Contractor. The CMA's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. Page 12 S:\City Manager's Office\cmoUon Fortune\HoYel & Convention Center\Oreilly\Developers AgreemenY\December 17 DocumenYs (final)\Word Version of Documents\Exhibit E- PSA ConstrucYion Managee Agent 12-10-13 F1NAL with dates completed.docx 2.6.16 Interpretations and decisions of the CMA shall be consistent with the intent of' and reasonably inferable from the Contract Documents and shall be in weiting or in the form of deawings. When making such interpretaYions and iniYial decisions, the CMA shall endeavor 4o secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this Agreement and in the absence of negligence. 2.6.17 The CMA shall assist in rendering written decisions within a reasonable time on all claims, disputes or othee matters in question between the Ownee and ConYractor relating to the execution oe progress of the work as provided in the ConYract Documents. 2.6.18 The CMA (1) shall rendee services under the Agreement in accordance with the Degree of Care; (2) will assist the Owner in seeking reimbursemen4 foe all damages caused by the defective designs the Design Professional prepazes; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any righYs the Ownee may have under the Agreement oe diminish any of the CMA's obligations thereunder. 2.6.19 The CMA shall ensure that the Owner is provided with four seYs of reproducible prints showing all si�ificant changes 4o the Consteuction Documents during the ConstrucYion Phase. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or Proposal, and they shall be paid foe by the Owner as provided in the AgreemenY, in addiYion to the compensaYion for Basic Services. The services described under Sections 32 and 3.4 shall only be provided if authorized or confiemed in writing by Yhe Owner. If services described under Contingent Addi4ional Services in SecYion 3.3 are required due Yo circumstances beyond the CMA's conYrol, the CMA shall notify the Owner in wriYing and shall not commence such additional services until iY receives written approval from the Owner Yo proceed. If the Owner indicates in writing that all or part of such Contingent Additional Services is not required, the CMA shall have no obligation to provide those services. Owner will be responsible for compensating the CMA for Contingent Additional Services only if they are not required due to the negligence or fault of CMA. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is described in Subsection 2.6.5 is required, the CMA shall provide one or moee Project Representatives Yo assise in carrying out such additional on-site responsibilities. 3.2.2 Project RepresenYatives shall be selected, employed and dieected by the CMA, and the CMA shall be compensated therefor as agreed by the Owner and CMA. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Assisting in submission of material revisions in Drawing�, Specifications or other documents when such revisions are: 1. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget; 2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or 3. due to changes required as a result of the Ownee's failure to eender decision in a Yimely mannee. 3.3.2 Providing services required because of significanY changes in the Project including, but not limited to, size, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 3.33 Assisting with submission of Drawinp�, Specifications and other documen4ation and supporting dat� and providing other services in connec4ion with Change Orders and Construction Change Directives. 3.3.4 Providing consultation conceming replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such work. 3.3.5 Peoviding services made necessary by the defaulY of the Contractor, by major defects or deficiencies in the woek of Yhe Conteactor, or by failure of perfoemance of eithee the Owner or Contractoe under the ContracY foe Construction. 33.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work. 3.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the CMA is party thereto. 3.3.8 Providing services in addition to those required by Article 2 for preparing documents for altemate, sepazate or sequential bids or providing services in connection with bidding or construction prior to the completion of the ConsYruction Documents Phase. 33.9 Notwithstanding anything contained in the Agreemen[, Proposal or these General Conditions to the contrary, all services described in this Article 3 thaY are caused or necessitated in whole or in part due to the negligent act or omission of the CMA shall be performed by the CMA as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the CMA for the Basic Services. The intervening or concurrent negligence of the Owner sliall not limit the CMA's obligations under this Subsection 33.9. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing assistance with obtaining financial feasibility or other special studies. 3.4.2 Providing assistance in obtaining planning surveys, site evalualions or comparative studies of prospective sites. Page 13 S:\City Manager's Office\cmoVon Fortune�Hotel & Convention Center\Oreilly�Developers Agreement\December 17 Documents (final)\Word Version of Documenis�Exhibit E- PSA Construction Manager AgenY 12-]0-13 FINAL with dates completed.docx 3.4.3 Providing assistance in obYaining special surveys, environmental studies and submissions eequired for approvals of govemmental authoeities oe others having jurisdicYion ovee the Project. 3.4.4 Providing assistance in obtaining services relative to future facilities, systems and equipment. 3.4.5 Providing assistance in obtaining services to invesYigaYe existing conditions or facilities or to make measured drawings thereof. 3.4.6 Providing assistance in obYaining services to verify the accuracy of deawings or other information fumished by the Owner. 3.4.7 Providing coordination of construcYion performed by separate contractors or by the Ownee's own forces and cooedination of services eequired in connection with construction performed and equipment supplied by the Owner. 3.4.$ Providing detailed quantity surveys or inventories of material, equipment and labor. 3.4.9 Providing analyses of operating and maintenance costs. 3.4.10 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operaYion and mainYenance manuals, teaining personnel for operation and mainYenance and consulYation dueing operation. 3.4.13 Providing assistance in obtaining interior design and similar services eequired for or in connection wiYh the selection, procurement or installaYion of Tumiture, fumishings and related equipment. 3.4.14 Providing services othee than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate foe PaymenY and expiration of the Warranty period of the Contract for Construction. 3.4.15 Providing assistance in obtaining services of Design Professional's for other than architectural, civil, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3.4.16 Providing assistance in obtaining any other services not otherwise included in ihis Agreement or not customarily fumished in accordance with generally accepted azchitectural practice. 3.4.17 Providing assistance in obtaining a set of eepeoducible record drawings in addition to Yhose required by Subsection 2.6.19, showing significant changes in the work made during consYruction based on marked-up prinls, drawings and other data fumished by the Contractor Yo tfne CMA. 3.4.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the CMA shall be perfortned by the CMA as a part of the Basic Services under the AgreemenY with no additional compensation above and beyond the compensation due the CMA foe the Basic Services. The intervening oe concurrent negligence of the Owner shall not limit the CMA's obligations under this Subsection 3.4.18. ARTICLE 4 OWN]CR'S RESPONSIBILITIES 4.1 The Ownee shall consult with the CMA regarding requirements for the Project, including (1) the Owner's objectives, (2) schedule and design constraints and ceiteria, including space requirements and relaYionships, flexibilily, expendability, special equipment, systems and si4e requieements, as more specifically described in Subsection 2.2.1. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies eelated Yo all of these costs. 4.3 If requesYed by the CMA, the Ownee shall fumish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4.4 The Owner shall designate a repeesentative authoeized to act on the Owner's behalf with eespect to the Project. The Ownee or such authoeized representaYive shall render decisions in a timely manner pertaining to documenYs submitted by the CMA in oeder to avoid unreasonable delay in the orderly and sequenYial progress of the CMA's services. 4.5 Where applicable, 4he Owner shall fumish surveys describing physical characteristics, legal limitations and utility locations for the site ofthe ProjecY, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structuees; adjacent drainage; rights-of-way, restrictions, easemenYS, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data peetaining to existing buildings, other impeovements and Yrees; and informaYion conceming available utility services and lines, both public and peivate, above and below grade, including inverts and depths. All the infoemation on the survey shall be referenced to a project benchmark. 4.G Where applicable, the Owner shall fumish the services of geotechnical engineers when such services aze requested by Yhe CMA. Such services may include but are not limited to test borings, test pits, deYerminaYions of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and eesistivity tests, including necessary operations fbr anticipating sub-soil conditions, with reports and appropriate professional recommendations. 4.G.1 The Owner shall furnish the services of other CMAs when such services are eeasonably required by the scope of the Project and are requested by the CMA and are not retained by the CMA as part of its Basic Services or Additional Services. 4.7 When not a part of the Additional Services, the Owner shall fumish structural, mechanical, chemical, air and waler pollution tests, tests of hazardous materials, and other laboratory and environmental tests, inspections and reports requieed by law or the ConYract Documents. Page 14 S:\City Manager's Office\cmoVon FortuneU-lotel & Convention Centerl0reilly\Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit E- PSA Construction Manager Agent 12-] 0-13 FINAL with dates completed.docx 4.8 The Ownee shall fumish all legal, accounting and insurance counseling services as may be necessary aY any time for 4he Projecc, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for whaY pueposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, inforrnation, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be fumished at the Ownee's expense, and the CMA shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of the CMA. 4.10 The Owner shall give prompt written notice to the CMA if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.11 CMA shall peopose language for certificates or certifications to be requested of the CMA oe CMA's CMAs and shall submit such to the Owner for review and approval at least fourteen (14) days peior to execution. The Ownee agrees not to request certifications that would require knowledge or services beyond the scope of the Agreemen4. ARTICLE 5 CONSTRUC'I'ION COST 5.1 CONSTRUCI'ION COST DEFINED 5.1.1 The Construction Cost shall be the 4otal cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional. 5.1.2 The Construction Cost shatl include the cost at current market rates of labor and materials 1'umished by the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus a eeasonable allowance for the Contractor's oveehead and peofit. In addition, a eeasonable allowance for con- tingencies shall be included foe market conditions at the time of bidding and for changes in Yhe woek during construction. 5.13 Construction Cost does not include the compensation of the CMA and staff, the costs of the larrd, rights-of-way, financing or other costs which are the responsi- bility ofthe Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCICION COST 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Conslruction Cost prepared by the Design Peofessional represent the Design Professional's best judgment as a Design Professional familiar with the consteuction industry. It is recognized, howevee, that neiYhee the design Professional nor the Owner has control over the cost of labor, materials oe equipment, ovee the Contractor's methods of deteemining bid prices, oe over compeYitive bidding oe market conditions. Accordingly, the Design Professional cannot and does not warrant or represenY that bids or cos[ proposals will not vary from 4he Owner's Project budget or from any esYimate of ConsYeuction Cost or evaluation prepazed oe agreed to by the Design Professional. The CMA, as the Owner's RepresenYative shall review the Owner's Peoject budgeY, preliminary estimates of Construction Cost and detailed estimates of Constnaction Cost submitted by the Design Professional and submit to Owner, and recommendations. 5.2Z No fixed limit ofConsYruction Cost shall be established as a condition of the Agreement by the fumishing, peoposal or establishment of a Peoject budgeY, unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, Yo make reasonable adjustments in the scope of the Project and to include in the Contract Documents altemate bids to adjust the Construction Cost to the fxed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurting after execution of the Contract for Construction. The CMA, as the Owner's Representative shall review any agreed upon fixed limits and submit to Owner, and recommendations. 5.23 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the ConstrucYion Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to Yhe Owner and the date on which proposals are sought. The CMA, as the Ownee's RepresentaYive shall eeview the Owner's revised ProjecY budget, preliminary estimates of Construction Cost and deYailed estimaYes of Construction CosY submitted by the Design Professional and submit to Ownee, and recommendations. ARTICLE 6 OWNERSHIP AND USE OF DOCUMENTS G.1 The documents prepared by the CMA for this Peoject are instrumenYs of the CMA's service and shall become the property of the Owner upon tertnination or completion of the Agreement. The CMA is entitled to retain copies of all such documents. Such documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in another projec4 or for othee purposes than are specified in the AgreemenY, the CMA is released 1'rom any and all liability eelating 4o their use in that project G.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogaYion ofthe CMA's reserved rights. ARTICLE 7 TERMINATION, SUSPCNSION OR ABANDONMCNT 7.1 The CMA may tertninate the Agreement upon not less Yhan thirty days written notice should the Owner fail substantially to perform in accordance with the terms of the Agreement through no fault of the CMA. Ownee may terminate the Agreement or any phase Yhereof only with cause and after reasonable prior weitten noticz to Yhe CMA and reasonable opportunity to cure by the CMA. All work and labor being perfoemed under the Agreement shall cease immediately upon CMA's receipt of such notice. Before the end of the thirty (30) day period, CMA shall invoice the Owner for all woek it satisfactoeily performed prior to the eeceipt of such notice. No amount shall be due for lost or anYicipated profits. All plans, field surveys, and othee data related to the Peoject shall become property of the Owner upon terminaYion of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Ownee subsequently contract with a new CMA for continuation of services on the Project, CMA shall cooperate in providing infoemation. 7.2 ]f the Project is suspended by the Owner for more than 30 consecutive days, the CMA shall be compensated for services satisfactorily performed prior to notice of such suspension. When the Project is resumed, the CMA's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the CMA's services. Page 15 S:\City Manager's Office\cmoUon Foetune\Hotel & Convention Center\Oreilly\Developers Agreement\Decembee ] 7 Documents (final)\Word Version of Documents\Exhibit E- PSA Construction Manager Agent 12-10-13 FINAL with dates completed.docx 73 The Agreement may be Yertninated by the Owner upon not less than seven days written notice to the CMA in the event that Yhe Project is permanently abandoned. ]f Yhe Project is abandoned by the Owner for more than 90 consecutive days, the CMA or the Owner may terminate the Agreement by giving written notice. 7.4 Failure of the Owner to make payments to the CMA for work satisfactorily completed in accordance with the Agreement shall be considered substantial nonperformance and caase fortermination. 7.5 Tf the Owner fails Yo make payment to CMA wiYhin Yhiriy (30) days of receipt of a sYatement for services properly and satisfactorily performed, the CMA may, upon seven days written notice Yo the Owrrer, suspend performance of services under the Agreemenl. 7.6 ]n Ure event of termination not the fault of the CMA, the CMA shall be compensated for services properly and satisfactorily performed prior to termination. ARTICLE 8 PAYMENTS TO THE CMA 8.1 DIRECI' PERSONNEL EXPENSE 8.1.1 Direct Personnel Expense is defined as the direct salaries of the CMA's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 8.2 REIMBURSABLE EXPENSES 8.2.1 Reimbursable Expenses are in addition 4o compensation for Basic and Additional Services and include expenses incurred by Yhe CMA and CMA's employees and CMAs in the interes4 of the Project, as identified in the following Clauses. 8.2.1.1 Expense oftransportation in connection with the Project; expenses in connection with authorized out-of-town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 8.2.1.2 Expense of reproductions (except the reproduction ofthe sets of documents eeferenced in Subsection 2.6.] 9), postage and handling of documents. 8.2.13 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 8.2.1.4 Other expenses that aze approved in advance in writing by the Owner. 8.3 PAYMENTS ON ACCOUNT OF SASIC SERVICGS 8.3.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services perfortned within each phase of service, on the basis set forth in Section 2 of the Agreement and the schedule of work. 83.2 If and to the extent that the time initially established in the Agreement is exceeded or extended through no fault of the CMA, compensation for any services eendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement. 8.33 When compensation is based on a percentage of ConsUuction Cost and any portions of the Project are deleted or othenvise not constructed, compensation for those portions of the Project shall be payable to ffie extent services are performed on those poRions, in accordance with the schedule set forth in Section 2 of the Agreement based on (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimale of Construction Cost or de[ailed estimate of Construction Cost for such portions of the Project. 8.4 PAYMENTS ON ACCOLJN'I' OF ADDITIONAL SERVICES 8.4.1 Payments on accounY of the CMA's AddiYional Services and for Reimbursable Expenses shalf be made monthly within 30 days after die presentation to the Owner of the CMA's statemen4 of services rendered or expenses incurred. 8.5 PAYMCNTS WITHIiELD No deductions shall be made from the CMA's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on accounY of the cosY of changes in the work other than Yhose for which the CMA is eesponsible. 8.6 CMA'S ACCOITNTING RECORDS CMA shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multlple of Direc4 Personnel Expense for inspection and copying during eegular business hours for three yeazs after the date ofthe final Certiticate of Payment, or until a�iy litigation related to the Project is final, whichever date is later. ARTICLE 9 INDEMNITY 9.1 The CMA shall indemnify and save and hold harmless the Owner and its oflicers, agents, and employees from and against any and all liabiliYy, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attomey fees incurred by Yhe Owner, and including, without limiYation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of Yhe CMA or its officers, shareholders, agents, or employees in the peeformance oftfie Agreement. 9.2 Nothing herein shall be consteued Yo create a liability Yo any person who is not a party to Yhe Agreement, and nothing herein shall waive any of the par[ies' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to tfie Agreement, including the defense of goveenmental immunity, which defenses aee hereby expeessly eeserved. ARTICLE l0 INSURANCE During the perfoemance of ihe Services under the AgreemenY, CMA shall mainYain the following insueance with an insurance company licensed or au4horized to do business in the State of Texas by llie State lnsurance Commission or any successor agency Yhat has a rating with Best Rate Carriers of at least an A or above: Page 16 S:\City Manager's Office\cmoUon Fortune\Hotel & Convention Centee\Oeeilly\Developers Agreement�December 17 Documents (final)\Word Version of Documents\Exhibit E- PSA Construction Manager Agent 12-10-13 F1NAL with dates comple[ed.docx 10.1 Compeehensive General Liability insurance with bodily injury limits of no4 less than $1,000,000 foe each occurrence and not less than $2,000,000 in Yhe aggeegate, and with property damage limits of not less than $100,000 for each occurrence and not less than $250,000 in the aggrega4e. 10.2 Automobile Liability Insurance with bodily injury IimiYs of not less than $500,000 Tor each person and not less than $500,000 for each accident, and with property damage limiYs oi'noY less than $] 00,000 foe each accident. 10.3 Worker's Compensation Insurance in accordance with statutory eequirements, and Employers' Liability ]nsueance with IimiYs of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10.5 The CMA shall furnish insurance certificates or insurance policies to the Ownee evidencing insurance in compliance with this Article 10 at the time of the execution of Yhe Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as an additional insured, the Workers' Compensation policy shall contain a waiver of subrogaYion in favor of the Owner, and each policy shall conYain a peovision that such insurance shall not be canceled or modified without thiety (30) days' prior written notice to Ownee and CMA. In such event, the CMA shall, prior to 4he effective date of the change or cancellation, fumish Owner with substitute certificates of insurance meeting the requieements of this Article 10. ARTTCLE 11 MCSCELLANEOUS PROVISIONS 11.1 T'he Agreemen4 shall be govemed by the laws of the State of Texas. Venue o1' any suiY or cause of action under 4he Agreement shall lie exclusively in DenYon County, Texas. 11.2 The Ownee and CMA, respectively, bind themselves, theie partnees, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The CMA shall not assign its interests in the Agreement without the written consent of the Owner. 113 The term Agreement as used heeein includes the executed Agreement, these General Conditions and other attachments referenced in Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and CMA and supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner and CMA. When interpreting the Agreement the executed Agreement, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to hartnonize the provisions. However, should the provisions of these documents be in conflict so that they cannot be reasonably harmonized, such documents shall be given priority in the following oeder: 1. The executed Agreement 2. Attachments re1'erenced in Section 3 of the Agreement 3. These General Provisions 11.4 Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or CMA. I 15 Upon receipt of prior written approval of Owner, tfie CMA shall have the right to include representations of the design of the Project, including photographs of the exterior and interioe, among the CMA's promotional and peofessional materials. The CMA's mateeials shall not include the Ownee's confidential or proprietary infoemation if the Owner has previously advised the CMA in wriYing of the specific infoemation considered by the Owner to be confidenYial oe proprietary. The Owner shall provide professional credit for the CMA on the construction sign and in the promoYional materials for the ProjecY. 11.6 Approval by the Owner shall not constitute, noe be deemed a release of Yhe eesponsibility and liability of the CMA, its employees, associates, agents, subcontractors, and subCMAs for the accueacy and competency of their designs or oYhee work; noe shall such approval be deemed Yo be an assumpYion of such responsibility by the Owner for any defecY in the design or other work prepared by the CMA, its employees, subcontractors, agents, and CMAs. 11.7 All notices, communications, and eeports required or permitted under the Agreement shall be peesonally delivered or mailed to the respective parties by depositing same in Yhe UniYed States mail to the address shown below signature block on Yhe AgreemenY, certified mail, eetuen receipt eequested, unless otherwise specified herein. All notices shall be deemed effective upon receipt by the party to whom such noeice is given, or within three (3) days after mailing. 11.8 Jf any provision of Yhe Agreement is found oe deemed by a court of competenY jurisdiction to be invalid or unenforceable, iY shall be considered severable from the remainder of the Ageeement and shall not cause the remainder to be invalid or unenfoeceable. In such event, the parties shall eeform the Agreement Yo replace such stricken peovision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. 11.9 The CMA shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable Yo the work covered hereunder as they may now read or hereinaftee be amended dueing the tenn of this AgeeemenY. 11.10 ]n perfortning the Services required hereunder, Yhe CMA shall not discriminate against arry person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 11.11 The cap4ions of the Agreement are for informational purposes only, and shall noY in any way affect the substantive terms or conditions of the Agreement. 11.12 Ownee Understands and acknowledges that CMA, in implementing its fiduciary eesponsibilities foe the Owner, will delegate many of its duties and responsibilities herein to the general contractoe, outside design prol'essionals and othee subcontractors hired by CMA to provide vaeious design, inspection, procuremenY, installation and eelated services. Regardless of such delegation, CMA will remain absoluYely responsible to Owner foe the services eequieed hereundee. Nothing herein shall aftect the CMAs fiduciary responsibility Yo the Owner as set forth in Chapter 2269 of the Texas Local Government Code. Page 17 S:\City Manager's Office\cmoUon Fortune\Hotel & Convention Center\Oeeilly\Developers Agreement\December 17 Documents (final)\Word Version of DocumenYs\Exhibit E- PSA Construction Manager Agent 12-10-13 F1NAL with dates compleYed.docx Attachment A CONFLICT OF INTEREST QUESTIONNAIRE For vendor or other �rsc�n doin : busi p_ ness with local ��ve This questionnaire reflects changes made to the law by H.E FORM CIQ rnmental 1491, 80th Leg., Regular Session. I OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a oate Reoe�Ved person who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. d�arne of person who has a business rel�tiunsl�ip� wwth iaca� gove � Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7'h business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subpa�ts A, B, C& D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? � Yes � No [3. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? � Yes 0 No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an Ownership of 10 percent or more? � Yes � No D. Describe each affiliation or business relationship. Signature of person doing business with the governmental entity � -�-" Adopled 06129/2007 Page 18 S:\City Manager's Office\cmoVon Fortune\Notel & Convention Center\Oreilly\Develapers Agreement\December 17 Documents (final}\Ward Version of Dacurnents\Exhihit E- PSA Construction Manager Agent 12-10-13 PINAL with dates completed.docx . _ ... . . . .., 4 I CITY 4 OF_ DENTON Attachment B City of Denton Purchasing 901-B Texas St. Denton, TX 76209 Phone: (940) 349-7100 Fax: (940) 349-7302 www.dentonpurchasinQ.com Substitute W-9 Form The IRS requires all vendors to complete a W-9 Form. The information on this form must be filled out, signed and submitted by a vendor representative. All information must be completed before a purchase order or payment will be issued. Name as shown on your income tax return: Tax ID/Social Security #: Under penalties of pery'ury, I certify that: 1. The number shown on this form is my correct taxtaxpayer identification number (or I am waiting for a number to be issued to me), and 2. I am not subject to backup withholding because (a) I am exempt from backup witholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. I am a US citizen or other U.S. person-for fededral tax purposes as defined at the bottom of this page". Authorized Signature. - Mailinq Address: Company Name: Contact Name: Address: Printed Name: Check appropriate box for federal tax classification (required): Individual/ � Sole ❑ Corporation � Partnership Proprietor Must designate C or S � C Exempt I � s ❑ �,,..n,.. Email: Website: Phone Number: Fax Number: Limited Other � Liability � Please specify: Corporation Business Type r Real Esta4e Equipment Y � � ❑ Ren4allLease (A1) � RentallLease (A-9) � Ro alties A-2 � MedicallHealth Care Services Only (A- Merchandise- Merchandise & ❑ 7) ❑ Goods Only (A-7) � 5ervices (A-7) � Legal Firm/Attorney (A-C) Consultant/Prof Proceeds f�om n Fees (A-7) n Real Estate Purchases (S) Minority Type of Organization: � Owned ❑ Female Owned ❑ Non Profit ❑ Historically Underutilized Business *Definition of a U.S. Person-For Federal Tax purposes, you are considered a U.S. person if you are: (a) an individual who is a U.S. citizen or U.S. resident (b) a partnership, corporation, company, or association created or organized in the United States or under the laws of the United States (c) an estate (other than a foreign estate), or (d) a domestic trust (as defined in Regulations Section 301.7701-7). COD Page 1 9/23/2011 Attachment B Vendor Information Not Required for W-9 Form Remit Address (if different from above) Company Name: Contact Name: Address: Email: Phone Number: Fax Number: List Products andlor Services Interested in Bidd ACH Information-Voluntarv ABA Routing#: Contact Name : Bank Account# Bank Name : ACH Email : ACH Email : Phone Number: Fax Number: I(we) authorize the City of Denton to deposit payments into the checking account listed. The authority remains in effect until the City of Denton has received written notification from me of termination in time to allow reasonable opportunity to act on it, or until the City of Denton has sent me written notice of termination of the agreement. Vendor Signature Print NamelTitle Date For Internal Use Only ❑ New Vendor .�, . ❑ Vendor Change Vendor Number ❑ Refund Requesting Department: Department Representative (Printed Name) Date: Purchasing Signature: Date° COD Page 2 9/23/2011 PROFFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER Exhibit F of Contract # 5447 STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made and entered into as of the lOth day of December, 2013, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 21 � East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and O'Reilly Hospitality Management with its corporate office at 2808 S. Ingram Mill, Bldg. A-104, Springfield, MO 65804 hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION I EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, in accordance with the provisions of Texas Government Code 2269.205, and Chapter 1051 and 1001 of the Texas Occupations Code to prepare the construction documents for the project. Additionally, the Design services shall be under the supervision of a licensed Texas architect or engineer, as an independent contractor. The Design Professional hereby agrees to perform all services as described under Article III Design Development Activities of the Master Development Agreement entered into as of December 10, 2013 by and between the City of Denton, Texas, the University of North Texas, O'Reilly Hotel Partners Denton, and O'Reilly Hospitality Management herein defined as the "Master Development Agreement." This agreement shall also serve as Exhibit G of the Master Development Agreement. SECTION II SCOPE OF SERVICES The Design Professional shall perform the following services in a professional manner: A. The Design Professional shall perform all those services as necessary and as described in the Master Development Agreement. Phase I- Initia135% Progress Set for Design Development — Design Professional will conduct a series of ineetings with the owner as required by the Master Development Agreement. The meetings will begin with reviewing the owner's project goals and Page 1 S:\City Manager's Office\cmaUon Partune�lotel & Convention Center\Oreilly�evelopers Agreement\December 17 Documents (final)\Word Version of Documents�Exhibil F- PSA Architect or Engineer 12-10-13 F1NAL with dates completed.docx requirements. Then the program will be refined and a preliminary floor plan and site plan will be produced. Design Professional will meet with the City of Denton to understand the constraints and parameters, such as city codes, zoning and platting, affecting the proposed sites. During this phase the Schematic documents are developed to facilitate the construction procurement phase. In this phase the mechanical, electrical, plumbing, and structural systems are refined. Additionally, architectural details are produced. Design Professional will produce an approximate 35% completed Desi�n Development Packa�e for the Owner's review and approval, which shall be sufficient in obtaining construction services for the project. After approval from the Owner, the 35% Construction Documents will be produced and provide to Owner to facilitate procurement of the construction services. Services in this phase are defined in AIA Document BI01, 3. 3.1 and 3. 3. 3. The Design Professional will also complete a construction cost estimate as part of this phase of the Design. Upon approval of the Owner, the Design Professional will submit the construction set for permit. Note: After expiration of the Feasibility Deadline and Financing Viability Deadline, and upon election of all Parties to proceed with the project as defined in the Master Development Agreement, the Design Professional shall continue with the final design of the project, completing the remaining 65% of the design for the project, as required in the Master Development Agreement, and defined further as Phase II of Design project. Phase II — Final 100°/a Progress Set for Design Development - During this phase the Schematic documents are fully developed to facilitate construction of the project. In this phase the mechanical, electrical, plumbing, and structural systems are 100% refined. Additionally, architectural details are produced. Design Professional will produce a 100% completed DesiQn Development PackaQe for the Owner's review and approval. Design Professional shall submit a completed coding and zoning research report to the Owner. After approval from the Owner, the 100% Progress Set Documents for Design will be produced and provide to Owner to facilitate the construction services. Services in this phase are defined in AIA Document B101, 3.3.1 and 3.3.3. Upon approval of the Owner, the Design Professional will submit the construction set for final permitting. Phase III — Construction Procurement Phase — During this phase the Design Professional shall provide assistance to the Owner in providing potential respondents for the construction services, attendance at any pre-solicitation meetings, answering any questions from potential respondents, assistance in preparing addenda for potential changes to the project, and provide assistance with the evaluation process of the respondents. Phase IV — Construction Administration Phase — During this phase the Design Professional will attend weekly meetings during construction, produce Field Observation reports, review submittals, produce responses to Request for Information's, and respond in a professional manner as needed during the construction process. Services in this phase are defined in AIA Document BI01, 3. 6 and in AIA Document A201-2007. B. If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of the Master Development Agreement will control over the terms and conditions of the any attached exhibits. . ;-, S:\City Manager's Office\cmoUan Portune\HoYel & Convention Center\OreilBy\Developers Agreement\December 17 Documents (final)\Word Version of Dacuments\Exhibit F- PSA Archilect or Engineer ] 2-] 0-] 3 FINAL with dates completed.docx sECTioN rir ADDITIONAL SERVICES Additional services to be performed by the Design Professional, if authorized by the Owner, which are not included in the above-described Basic Services, are described as follows: A. During the course of the Project, as requested by Owner, the Design Professional will be available to accompany Owner's personnel when meeting with the Texas Commission on Environmental Quality, U.S. Environmental Protection Agency, or other regulatory agencies. The Design Professional will assist Owner's personnel on an as-needed basis in preparing compliance schedules, progress reports, and providing general technical support for the Owner's compliance efforts. B. Assisting Owner or contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by Design Professional on a fee basis negotiated by the respective parties outside of and in addition to this Agreement. C. Sampling, testing, or analysis beyond that specifically included in Basic Services. D. Preparing copies of computer aided drafting (CAD) electronic data bases, drawings, or files for the OWNER's use in a future CAD system. E. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. F. Appearing before regulatory agencies or courts as an expert witness in any litigation with third parties or condemnation proceedings arising from the development or construction of the Project, including the preparation of engineering data and reports for assistance to the Owner. G. Providing geotechnical investigations for the site, including soil borings, related analyses, and recommendations. H. The Design Professional shall assist the Owner in reviewing proposed construction changes to the original design, denying or approving of proposed changes, communicating with the Owner of such approvals or denials, and ensuring compliance with Attachment G to the Master Development Agreement (Contractor Payment Guidelines). The Design Professional shall assist the Owner with the evaluation of the respondents (General Contractors) to the solicitation for the construction of the Convention Center, in an advisory capacity. The Owner shall procure the construction services of a general contractor or trade contractor in accordance with the provisions of Texas Government Code 2269.206. J. Other services within the scope of this project as requested by the Owner. .,_- S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement�December 17 documents (final}\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-] 0-13 FINAL with dates completed.docx SECTION IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the Owner and the Design Professional and upon issue of a notice to proceed by the Owner, and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved b.y the Owner. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The Design Professional shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the Owner, acting through its City Manager or his designee. SECTION V COMPENSATION A. COMPENSATION TERMS: 1. "Subcontract Expense" is defined as expenses incurred by the Design Professional in employment of others in outside firms for services of Design Development Activities under the Master Development Agreement. 2. "Direct Non-Labor Expense" is defined as that expense for any assignment incurred by the Design Professional for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the Design Professional herein, the Owner agrees to pay for the completion of the 35% Design Development Phase as defined in the Master Development Agreement for maximum fee not to exceed $200,000. After expiration of the Feasibility Deadline and Financing Viability Deadline, and upon election of all Parties to proceed with the project as defined in the Master Development Agreement, the Design Professional shall continue with the final design of the project, completing the remaining 65% of the design for the project, as required in the Master Development Agreement. The Owner shall compensate the Design Professional for all services during the Design Development Phase as follows: BASIC SERVICES Phase I- Fee for Initial 35% Completion of Design work shall not exceed: $200,000. Phase II - Fee for Final 100% Completion of Design work (determined upon election to proceed). Phase III - Fee for Construction Procurement assistance (determined upon election to proceed). Page 4 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly�Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-10-13 FINAL with dates completed.docx Phase IV - Fee for Construction Administration (determined upon election to proceed). As stipulated in Exhibit E to the Master Development Agreement, the Construction Manager Agent Services shall equal3% of the total project costs, (defined as all hard and soft costs for the design, construction, and development of the Convention Center). The not-to-exceed fee for the CMA services shall be exclusive of other Subcontract Expense required for the design, development, inspection, procurement and installation of FF&E and construction of the Convention Center. The not-to-exceed CMA fee will be fully determined upon final design of the project, and determination of the Final Convention Center Budget following the award of the construction contract for the Convention Center. ADDITIONAL SERVICES For additional services authorized in writing by the Owner in Section III, the Design Professional shall be paid based on the Schedule of Charges at an hourly rate as stated below. Payments for additional services shall be due and payable upon submission by the Design Professional, and shall be in accordance with Article V hereof. Statements shall not be submitted more frequently than monthly. Compensation for Additional Services is as follows: Rate for Additional Services shall not exceed: $175 per hour REIMBURSABLE EXPENSES Reimbursable Expenses shall be compensated for expenses (travel, copies, etc.) related to the Convention Center design project, and shall not exceed a total of $15,000. Invoices for reimbursable expenses sha11 be submitted to the Owner in a timely manner. Partial payments to the Design Professional will be made on the basis of detailed monthly statements rendered to and approved by the Owner through its City Manager or his designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The Owner may withhold the final five percent (5%) of the contract amount until completion of the Project. Nothing contained in this Article shall require the Owner to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The Owner shall not be required to make any payments to the Design Professional when the Design Professional is in default under this Agreement. It is specifically understood and agreed that the Design Professional shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the Owner for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the Owner. The Design Professional shall not proceed to perform the services listed in Section III "Additional Services," without obtaining prior written authorization from the Owner. Page 5 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement�December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-10-13 FINAL with dates completed.docx C. PAYMENT: If the Owner fails to make payments due the Design Professional for services and expenses within thirty (30) days after receipt of the Design Professional's undisputed statement thereof, the amounts due the Design Professional will be increased by the rate of one percent (1%) per month from the said thirtieth (30th) day or the rate established within Texas Government Code 2251 (Prompt Payment Act), and, in addition, the Design Professional may, after giving seven (7) days' written notice to the Owner, suspend services under this Agreement until the Design Professional has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the Owner to pay any late charges set forth herein if the Owner reasonably determines that the work is unsatisfactory, in accordance with this Section V, "Compensation." Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201-4299. A pro-forma invoice shall also be sent to the Project Manager. It is the intention of the City of Denton to make payment on completed orders within thirty days after receipt of invoice or items; whichever is later, unless unusual circumstances arise. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. Upon contract award, suppliers are encouraged to receive payments through direct deposit. SECTION VI OBSERVATION AND REVIEW OF THE WORK The Design Professional will exercise reasonable care and due diligence in discovering and promptly reporting to the Owner any defects or deficiencies in the work of the Design Professional or any subcontractors or sub-Design Professionals. SECTION VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the Design Professional (and Design Professional's subcontractors or sub-Design Professionals) pursuant to this Agreement are instruments of service, and shall become the property of the Owner upon the termination of this Agreement. The Design Professional is entitled to retain copies of all such documents. The documents prepared and furnished by the Design Professional are intended only to be applicable to this Project, and Owner's use of these documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, Design Professional is released from any and all liability relating to their use in that project. SECTION Viii INDEPENDENT CONTRACTOR I',�- , S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement�December ] 7 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-10-13 FINAL with dates cample[ed.docx Design Professional shall provide services to Owner as an independent contractor, not as an employee of the Owner. Design Professional shall not have or claim any right arising from employee status. SECTION IX INSURANCE During the performance of the services under this Agreement, Design Professional shall maintain the insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A or above, and in accordance with Article 10 of the City of Denton General Conditions for Agreement for Architectural and Engineering Services. SECTION X ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving one party's disagreement may include the other party to the disagreement without the other's approval. SECTION XI RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents, subcontractors, and sub-Design Professionals for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and Design Professionals. SECTION XII NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To Design Professional: Tim O'Reilly 2808 S. Ingram Mill., Bldg. A-104 Springfield, MO 65804 To Owner: City of Denton George Campbell, City Manager 215 East McKinney Denton, Texas 76201 purchasing�a� citvofdenton. com Page 7 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly�Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-] 0-13 FINAL with dates completed.docx All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. SECTION XIII SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. SECTION XIV PERSONNEL A. The Design Professional represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the Owner. Design Professional shall inform the Owner of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. B. All services required hereunder will be performed by the Design Professional or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. SECTION XV ASSIGNABILITY This agreement shall be binding upon and ensure to the benefit of the City and the Design Professional and their respective successors and assigns, provided however, that no right or interest in the agreement shall be assigned and no obligation shall be delegated or transfer of any interest by the Design Professional (whether by assignment, novation, or otherwise) without the prior written consent of the Owner. Any attempted assignment or delegation by the Design Professional shall be void unless made in conformity with this Section. The Agreement is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneiiciaries to the Contract. SECTION XVI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding Page 8 S:\City Manager's Office\cmoUon Fortune\Hotel & ConvenYion Centerl0reilly\Developers Agreement�December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Gngineer 12-10-13 F7NAL with dates completed.docx arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ��'C:'�9'I��+1 XVII MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: None B. The Owner shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The Design Professional shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the Design Professional shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the Owner similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the Owner unless the audit reveals an overpayment of 1% or greater of the fee for basic services under this agreement. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Design Professional which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the Owner's sole discretion, grounds for termination thereo£ Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. C. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Tim O'Reilly, Steve Minton, Scott Shultz, David Horst, and Bob Fugazi. However, nothing herein shall limit Design Professional from using other qualified and competent members of its firm to perform the services required herein. D. Design Professional shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, Design Professional shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the Owner. E. The Owner shall assist the Design Professional by placing at the Design Professional's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the Design Professional to enter in or upon public and private property as required for the Design Professional to perform services under this Agreement. SECTION XVIII Page 9 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-] 0-13 FINAL with dates completed.docx � . The validity of the Agreement and any of its terms and provisions, as well as the rights and duties of the Parties, shall be governed by the laws of the State of Texas; and venue far any action concerning this Agreement shall be in the State District Court of Denton County, Texas. I ► . D � ! :�� ►��1 �1►Y Y This Agreement, including the City of Denton General Conditions to Agreement for Architectural or Engineering Services, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representatians, negotiations, discussions, cammunications, and agreements which may have been made in connection with the subject matter hereof. This Agreement, consisting of �'� _ pages includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: 1. City of Denton General Conditions to Agreement far Architectural or Engineering Services. 2. Attachments A through B. Attachment A– City of Denton Conflict of Interest Form, Attachment B– City of Denton Substitute W-9 Form. .� • � � ►YC�I�►I � � BY: � " - f� ..�°. ,;� — �� ,� � –�, � A}�;( I��C�I°� C. C'I�M��1 �[sl; CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: . � `��'„, �� _ � � � �'`��t� ��. � � APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY �1 I°��O1�.I�If�Y . � ��.. $Y: �,,. `'`�� `�`�f ,�' �� °"� ` _ , , _ -� � r;� � DESIGT'�{ ,;1 [� 1'v'� � �� F� �� ; o� _. �BY: � �� _;� l�i ��a's }tii��•�'1��r�.��:a�i�k�iv� , � �� Si �at��kt�� .. � g� �� , _� ��`�' ��. �� , �^� k � �. � � � � � a ,� �. �._ ��. � ��}� �,,.,�•, �;:� �„� � .�, �- .� Page 10 �+ _ \\CODAD\Departments\City Manager's Office\cmoUon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement�December 10 Documents\Exhibit F Design Services Convention Center Project 12-10-13 F1NAL.docx WITNESS: ��,.� B�.�� . �� t�'�'�.��:'� � �� ° �:, �� 11 �m�� i ��+� ��°�� Page 11 \\CODAD\Departments\City Manager's Office\cmo\Jon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design Services Convention Center Project 12-10-13 FINAL.docx CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1. ARCI�ITECI' OR ENGINEER'S RESPONSIBILITIES 1.1 The Architect oe Engineer's services consist of those services for the ProjecY (as defined in the agreement (the "AgreemenP') and proposal (the "Proposal") to which these General Conditions aee attached) performed by the ArchiYect or Engineer (hereinafter called the "Design Professional") oe Design Professional's employees and Design Professionals as enumerated in Articles 2 and 3 ofthese Geneeal Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The Design Professional will perform all Services as an independent conYractor to the prevailing professional standards consistent with the level of caze and skill ordinarily exercised by members of the same profession currently practicing in the same locality under similar conditions, including reasonable, informed judgrnents and prompt timely actions (the "Degree of Caze"). The Services shall be performed as expeditiously as is consistent with the Degree of Care necessary for the orderly progress of the Peoject. Upon request of the Owner, the Design Professional shall submit for the Owner's approval a schedule foe the peefoemance of the Services which may be adjusted as the Project proceeds, and shall include allowances foe periods of time eequired for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule and approved by the Owner shall not, except for reasonable cause, be exceeded by the Design Professional or Owner, and any adjustrnents to this schedule shall be mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 2.1 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those described in Sections 22 through 2.6 of these General Conditions and include without limitation noemal sYructural, civil, mechanical and electrical engineering services and any ocher engineering services necessary to produce a complete and accurate set of Constnaction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement. 2.2 SCHEMATIC DESIGN PHASE 2.21 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owner's needs and to establish the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Ownee's progeam, construcYion schedule and constnaction budget requirements, each in teems of the other, subject to the limitations set forth in SubsecYion 52.1. 2.2.3 The Design Professional shall eeview with the Owner altemaYive approaches to design and construction of the ProjecY. 2.2.4 Based on the mutually agreed-upon peogram, schedule and construcYion budget requirements, the Design Professional shall prepare, for approval by the Owner, Schematic Desigr pocuments consisting of drawings and oYher documents illustrating the scale and relationship of Project components. The Schematic Design shall contemplaYe compliance with all applicable laws, statutes, ordinances, codes and regula4ions. 2.2.5 The Design Peofessional shall submit to the Owner a preliminary detailed estimate of Construction Cost based on current area, volume oe othee unit costs and which indicates the cost of each category of work involved in constructing the Project and establishes an elapsed time factor for the period of time from the commencement to the completion of construction. 2.3 DESIGN DEVELOPMENT PHASE 23.1 Based on the appeoved SchemaYic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Design Professional shall prepaze for approval by the Owner, Desigp Development Documents consisting of drawings and other documents to fix and describe the size and chazacter of the Project as to architectural, struc[ural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply wiYh all applicable laws, statuYes, ordinances, codes and regulations. Notwithstanding Ownee's approval of the documents, Design Professional represents that Ure Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project. 23.2 The Design Professional shall advise the Owner of any adjustrnents to the peeliminary estimate of Construction Cost in a further Detailed Statement as described in Section 22.5. 2.4 CONSTRUC'I'ION DOCUMENTS PI-1ASE 2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, ConsYruction Documents consisting of Deawings and Specifications selting forth in detail requirements for the construction ofthe Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. 2.4.2 The Design Professional shall assisY the Ownee in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the Conditions ofthe contract, and the form of Agreement between the Owner and contractor. 2.4.3 The Design Professional shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general markeY conditions. 2.4.4 The Design Professional shall assist the Owner in connecYion with the Owner's responsibility for filing documents required for the appeoval of govemmental auYhorities fiaving jurisdicYion over the Project. 2.5 CONSTRUCTION CONTRACT PROCUREMENT 2.5.1 The Design Professional, following the Owner's approval of Uie Construction Documents and of the latest preliminary detailed estimate of Construction Cost, sliall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without Page I Z S:1City Manager's Office\cmoVon Portune\Hotel & Convention Center\Oreilly\Developers Agreement\December ] 7 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-] 0-13 F1NAL witli dates completed.docx IimiYaYion, the competitive sealed bidding process. Although the Owner will considee the advice of the Desigi Professional, the award of the construction conteact is in the sole discretion of the Owner. 2.5.2 If the construction contract amount for the Project exceeds the total construction cost of Ure Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole cost and expense, will revise the Construction Documents as may be required by the Owner to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total construction wst set forth in the approved Detailed Statement of Probable Construction Costs. 2.6 CONSTRUC"1'TON PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRAC7' 2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 83.2. 2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionals the administration shall also be in accordance with AIA document A201, General Conditions of the ConYract for Construction, current as of the date of the Ageeement as may be amended by the City of Denton special conditions, unless otherwise provided in the Agreement. For engineers the administration shall also be in accordance with the Standard Specifications for Public Works Construction by Yhe North Central Texas Council of Govemments, current as of Yhe date of the Agreement, unless othePwise peovided in the Agreement. 2.63 Construction Phase duties, eesponsibilities and limitaYions of authority of the Design Professional shall not be eestricted, modified oe extended without written ap�-eement of the Owner and Design Professional. 2.6.4 The Desigr Professional shall be a representaYive of and shall advise and consult with the Owner (1) dueing construction, and (2) at the Owner's direction from time to time during the coerection, or warranty period described in Yhe Contract for Construction. The Design Professional shall have authority to act on behalf of Yhe Owner only 4o the extent peovided in the Agreement and these General CondiYions, unless othenvise modified by written inscrument. 2.6.5 The Design Professional shall observe the construction site at least one time a week, while construction is in progress, and as reasonably necessary while construcYion is not in progress, to become familiar with the progress and quality of the work completed and to deteemine if the work is being performed in a manner indicaYing that the work when completed will be in accordance with the Con4ract Documents. Desi� Professional shall provide Owner a written report subsequent to each on-site visit. On the basis of on-site observations the Design Professional shall keep the Owner informed of the peogress and qualily of the woek, and shall exeecise the Degree of Care and diligence in discovering and peomptly reporting to the Ownee any observable defects or deficiencies in the work of Contractor or any subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement. The Design Professional shall promptly correct any defective desigis or specifications fumished by the Design Professional at no cost to the Owner. The Owmer's approval, acceptance, use of or payment for atl or any part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or Yhe Ownee's rights heeeunder. 2.G.6 The Design Professional shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or peocedures, or foe safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contractoe's schedules or failure to cany out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professional's negligent acYs or omis- sions. The Design Professional shall noY have control over or charge of acts or omissions of the Conteactor, Subcontractors, or their agents or employees, or of any othee persons performing portions of the work. 2.6.7 The Design Professional shall at all times have access to the work wherever it is in prepazation or progress. 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Conteactor shall communicate through the Design Professional. Communications by and with the Design Professional's Design Professionals shall be through the Design Professional. 2.6.9 Based on the Design Professional's observations at the sile of the woek and evaluations of the Contractoe's Applications for Payment, the Design Professional shall review and certify the amounts due the ConYracYor. 2.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional 's observations at the site as provided in Subsection 2.6.5 and on the data comprising the Contractor's Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to minor deviations from the Contract Documents cor- rectable prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Certificate for Payment shall further constitute a repeesentation that the Contractor is enYitled to paymenY in the amount certified. However, Yhe issuance of a Certificate foe Payment shall not be a representation that t}re Design Professional has (1) reviewed construction means, methods, techniques, sequences or peocedures, or (2) ascertained how or for what purpose Yhe Contractor has used money previously paid on account ofthe Contract Sum. 2.6.i1 The Design Professional shall have the responsibility and auYhority to reject work which does not confortn to the Conteact Documents. Whenever the Design Professional considers it necessary or advisable for implementalion of the intent of the Contract Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Design Professional nor a decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Design Professional to the Contractoe, Subcontractors, material and equipment suppliers, their agents or employees oe oYher persons performing portions of the work. 2.G.12 The Design Professional shall review and approve or take othee appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of (1) determining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the work, when completed, will be in compliance with the requirements of the Contract Documents. The Design Professional shall act with such reasonable prompmess to cause no delay in the work or in the construction ofthe Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to permi[ adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of olher details such as dimensions and quantities or for substantiating instructions for installation or peribrtnance of equipment or systems designed by the Contractor, all of which remain the responsibility ofYhe Contractor to the extent required by the Conlract Documents. The Design Professional's eeview shall not constiYuYe approval ofsafety precautions or, unless otherwise specifically stated by the Design Professional, of construction means, melhods, techniques, sequences or procedures. The Design Professional's Page 13 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly\Developers Agreemen4\December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or �ngineer 12-10-13 FINAL with dates completed.docx approval of a specific item shall not indicaYe approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Desi� Professional shall be entitled to eely upon such certification to establish ffiae the materials, systems or equipment will meet the performance criteria required by the Contract Documents. 2.6.13 The Desi� Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Design Professional as peovided in Subsections 3.1.1 and 33.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the work noY involving an adjustrnent in the ConYract Sum or an extension of the Contrac[ Time which aze not inconsistent with the inYent of the Contract Documents. 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall issue Certificates of Substantial and Final Completion. The Design Professional will eeceive and review written guarantees and related documents required by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with t}re requirements of the Contract Documents. 2.6.15 The Design Professional shall interpret and provide recommendations on matters conceming perforrnance of the Owner and Contractor under the requirements of the ConYract Documents on written request of either the Owner or Conlractor. The Desi@p Professional's response to such eequests shall be made with eeasonable promptness and within any time limits agreed upon. 2.6.16 Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing oe in the form of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance by both Owner and Contractor, and shall noY be liable for results or interpretations oe decisions so rendered in good faith in accordance with all the provisions of this AgreemenY and in the absence of negligence. 2.6.17 The Desig� Peofessional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between che Owner and Contractor eelaYing to the execution or progress of the work as provided in the ConYract Documents. 2.6.18 The Desi� Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreement or diminish any of the Design Professional's obligations thereunder. 2.6.19 The Design Professional shall peovide the Owner with four sets of repeoducible prints showing all significant changes 4o the Constnaction Documents during the Construction Phase. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or Proposal, and they shall be paid for by the Owner as provided in the Agreement, in addition to the compensation foe Basic Services. The services described under Sections 3.2 and 3.4 shall only be provided if authorized or confirrned in wriYing by the Owner. If services described under Contingent Additional Services in Section 33 are required due to circumstances beyond the Design Professional's control, ffie Design Professional shall notify the Ownee in writing and shall not commence such additional services until iY receives written approval from the Owner to proceed. If the Owner indicates in writing that all or part of such Contingent Additional Services are not eequired, the Design Professional shall have no obligation fo provide Yhose services. Ownee will be responsible for compensating the Design Professional foe ContingenY Additional Services only if they are not required due to the negligence or fault of Design Professional. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representalion at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or more Project Representatives to assist in carrying out such additional on-siYe responsibilities. 3.2.2 ProjecY RepresenYatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be compensated therefor as agreed by the Owner and Design Professional. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions aze: 1. inconsistenY with appeovals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or ProjecY budget; 2. required by the enactrnenY or revision of codes, laws or regulations subsequent to the preparation of such documents, oe 3. due to changes required as a result of the Owner's failure to render decision in a timely manner. 3.3.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 3.3.3 Preparing Drawings, Specifications and other documenYation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives. 33.4 Providing consultation conceming replacement of work damaged by fire or olher cause during construction, and fumishing services required in connection with the replacement o1'such work. Page 14 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\OeeillylDevelopers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-10-13 FINAL with dates completed.docx 33.5 Providing services made necessary by the default of the Con4ractor, by major defects or deficiencies in the work of the Contractor, oe by failuee of performance of either the Owner or Contractor under the Contract for Construction. 33.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work. 3.3.7 Providing services in connection with a public hearing, arbitraYion proceeding or legal proceeding except where the Design Professional is party thereto. 3.3.8 Providing services in addition to those required by Article 2 foe prepazing documents foe altemate, separate or sequential bids or providing services in connection with bidding or consteuction prior to the compleYion of the ConsYruction Documents Phase. 33.9 Notwithstanding anything contained in the Agreement, Proposal or these Geneeal Conditions Yo the contrary, all services desceibed in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrenY negligence of the Owner shall not limit the Desigr Professional's obligations undee this Subsection 3.3.9. 3.4 OPTIONALADDITIONALSERVICES 3.4.1 Providing financial feasibility or other special studies. 3.4.2 Peoviding planning surveys, site evaluations or comparative studies of prospective sites. 3.4.3 Providing special surveys, environmenYal studies and submissions requieed for approvals of govemmental authoeiYies or others having jurisdicYion over the Project. 3.4.4 Peoviding services eelative to future facilities, systems and equipment. 3.4.5 Providing services to investigate existing conditions or facilities or to make measueed drawings thereof. 3.4.6 Providing services to verify the accuracy of drawings oe other inforenation fumished by the Ownee. 3.4.7 Providing coordinaYion of constnacYion performed by sepazate contracYors or by Yhe Ownee's own foeces and coordination of services required in connection with construcYion performed and equipment supplied by the Owner. 3.4.8 Providing detailed quantity surveys or inventoeies of maYeeial, equipmene and laboe. 3.4.9 Providing analyses of operaling and maintenance costs. 3.4.10 Making investigations, invenYories of mateeials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operaYion and mainYenance manuals, training personnel for operaYion and maintenance and consultation during operation. 3.4.13 Providing interioe design and similar services required for oe in connection with the selection, procurement oe installation of fumiture, fi�mishings and eelated equipment. 3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to Yhe Owner of the final Certifica4e for Payment and expiration of the Warranty period ofthe ContracY for Construction. 3.4.15 Providing services of Design Professionals for other than azchitectural, civil, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3.4.16 Providing any othee services not otherwise included in ihis Ageeement or not customarily fumished in accoedanee with generally accepted architectural practice. 3.4.17 Preparing a seY of reproducible record drawings in addition to those required by Subsection 2.6.19, showing significant changes in Yhe work made during con- struction based on marked-up peints, drawings and other data fumished by the ConYractor to ihe Design Professional. 3.4.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions Yo the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission ofUre Design Professional shall be perforrned by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not IimiY the Design Professional's obligations under this Subsection 3.4.18. ARTICLE 4 Oi�VNER'S RESPONSIBILITIES 4.1 The Owner shall consult wiUi the Design Professional regarding requirements for the Project, including (I) the Owner's objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendabilily, special equipment, systems and site requirements, as more speci- fically described in Subsection 2.2.1. 4.2 The Ownee shall establish and update an overall budget for the Project, induding the Construction Cost, the Owner's other costs and reasonable contingencies related to all of tliese costs. 4.3 If requested by the Design Professional, the Owner shall fumish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. Page 15 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly�Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-] 0-13 FINAL with dates completed.docx 4.4 The Owner shall designate a eepresentative authorized to acY on the Owner's behalf with respect Yo the Project. The Owner or such authoeized representative shall render decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in the orderly and sequential progress of the Design Professional's services. 4.5 Where applicable, the Owner shall fumish surveys describing physical characteristics, legal limitations and uYility locations foe the site of the Project, and a written legal description of the site. The surveys and legal inforenation shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacenY drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restricYions, boundaries and contoues of the site; locations, dimensions and necessary data pertaining 4o exisYing buildings, oYher improvements and trees; and information conceming available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be refeeenced to a project benchmark. 4.6 Wheee applicable, the Owner shall fumish the services of geotechnical engineers when such services are requested by the Design Professional. Such services may include buY are noY limited to test borings, test pits, determinations of soil bearing values, percolation tesYs, evaluations of hazardous maYerials, ground coerosion and ee- sistivity tests, including necessary operations for anticipating sub-soil conditions, with repoRs and appropriate professional eecommendations. 4.6.1 The Owner shall fumish the services of other Design Professionals when such services aze reasonably requieed by Yhe scope of the Project and are eequested by the Design Peofessional and are no4 retained by the Design Professional as part of its Basic Services oe Additional Services. 4.7 When no4 a part of the Additional Services, the Owner shall fumish sYructural, mechanical, chemical, air and watee pollution Yests, tests of haaaedous materials, and other laboeatory and environmental tests, inspecYions and reports required by law or the Conteact Documents. 4.8 The Owner shall fumish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the ContracYoe's Applications for Payment oe 4o ascertain how or 1'oe what purposes the ConYeactoe has used the money paid by or on behalf of the Owner. 4.9 The services, informaYion, surveys and reports required by Ownee under Sections 4.5 throug� 4.8 shall be fumished at the Owner's expense, and the Design Professional shall be entitled to rely upon the accueacy and completeness thereof in the absence of any negligence on the part of the Design Professional. 4.10 The Ownee shall give prompt weitten notice to the Desig� Professional if the Ownee becomes aware of any fault or defect in the Project or nonconfortnance with the Contract Documents. 4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Professional's Design Professionals and shall submiY such to the Owner for review and approval at least fourteen (14) days prior to execution. The Owner ageees not to request certifications that would requiee knowledge or services beyond the scope ofthe Agreement. ARTICLE 5 CONSTRU('I'ION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Desig� Professional. 5.1.2 The Construction Cost shall include the cose at current mazket rates of labor and materials fiamished by the Owner and equipment designed, specified, selecYed or specially provided for by the Design Professional, plus a reasonable allowance for the Contractor's overhead and peofit. In addition, a reasonable allowance for con- tingencies shall be included for market condiYions at the time of bidding and for changes in the work during construction. 5.1.3 ConsYruction Cost does noY include the compensation o1' the Design Professional and Design Professional's Desi� Professionals, the costs of the land, rights-of-way, financing or other costs which are Yhe eesponsibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Conslruction Cost prepared by the Design Professional represent the Design Professional's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the ConYractor's methods of deYertnining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary from the Ownee's Project budget or from any estimate of Construction Cost or evaluation peepared or agreed to by the Desi� Professional. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by the fumishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereYo. ]f such a fixed limit has been established, the Design Professional shall be pertnitied to include contingencies foe design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjushnents in the scope of the Project and eo include in the Contract DocumenYs altemaee bids to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurting after execution of the Contract for Construction. 5.23 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents Yo the Owner, any Projec4 budgeY or fixed IimiY of Construction Cost shall be adjusted to reflect changes in the general level of prices in the consUuction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals aze sough[. ARTICLE G O�'VNERSHIP AND USE OF DOCUMENTS G.1 The Drawings, Specifications and other documents prepazed by the Design Professional for this Project are instruments of the Design Professional's service and shall beconre the peoperty of the Owner upon tennination oe completion of the Agreement. The Design Professional is entitled to reYain copies of all such documents. Such documents are intended only be applicable to U�is Peoject, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the Page 16 S:\City Manager's Office\cmoVon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (final)\Word Version of DocumenYslExliibit F- PSA Architect or Engineee 12-10-] 3 F1NAL with dates completed.docx Ownee uses any of Ure infortnation or materials developed pursuant Yo the Agreement in another peoject oe for othee purposes than are specified in the Agreement, the Desig� Professional is released from any and all liability relating to their use in that project 6.2 Submission or distribution of documents to meeY o�cial regulatory requirements or for similaz purposes in connection with the Peoject is not to be construed as publication in derogation of the Design Professional's reserved eights. ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7.1 The Desig� Professional may terminate the Ageeement upon not less than thiriy days written notice should Yhe Owner fail substantially to perform in accordance with the terms of the Agreement through no fault of the Design Professional. Owner may teeminate Yhe Ageeement or any phase thereof only with cause and after reasonable prior written notice to the Design Professional and reasonable opportunity to cuee by the Design Peofessional. All work and labor being perfoemed under the Ageeement shall cease immediately upon Design Professional's receipt of such notice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt of such no4ice. No amount shall be due for lost or anticipated profiYs. All plans, field surveys, and ot}rer data related to the Project shall become property of the Owner upon terminaYion of the Agreement and shatl be peomp4ly delivered to the Owner in a reasonably organized form. Should Ownee subsequen[ly contract with a new Desigr Professional for continuation of services on the Project, Design Peofessional shall cooperate in providing information. 7.2 If Yhe Project is suspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to notice of such suspension. When the Project is resumed, the Design Peofessional's compensaYion shall be equitably adjusted to peovide for expenses incurred in the intenuption and resumption ofthe Design Peofessional's services. 7.3 The Agreement may be Yerminated by the Owner upon not less than seven days written notice to the Desigi Professional in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner f'or more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written notice. 7.4 Failuee of the Owner to make payments 4o the Design Professional for work satisfactorily completed in accordance with Yhe AgreemenY shall be considered substantial non- performance and cause foe termination. 7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement foe services propeely and satisfactorily performed, the Design Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement. 7.6 In lhe event of termination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily perfortned prior to termination. ARTICLE 8 PAYMENTS TO TIiE DESIGN PROrESS10NAL S.1 DIRECI' PERSONNEL CXPENSE 8.1.1 DirecY Personnel Expense is defined as the direct salaries of Yhe Desig� Professional's peesonnel engaged on the Project and the poRion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 8.2 REIMBURSABLE EXPENSES 8.2.] Reimbursable Expenses are in addiYion Yo compensation for Basic and Additional Services and include expenses incurred by the Design Professional and Design Professional's employees and Desigi Professionals in the interest ofthe Project, as identified in the following Clauses. 8.2.1.1 Expense ofYransportation in connection with the Peoject; expenses in connection with authorized out-of-town Vavel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 8.2.1.2 Expense of repeoductions (except the reproduction of the sets of documenYs referenced in Subsection 2.6. ] 9), postage and handling of Drawings, Specifications and other documents. 8.2.13 If authorized in advance by the Owner, expense of overtime work requiring higher than regular eates. 8.2.1.4 Expense of eendeeings, rnodels and mock-ups requesYed by the Ownee. 8.2.1.5 Expense of computer-aided design and drafting equipment Yime when used in connection with the Project. 8.2.1.6 Other expenses that are approved in advance in writing by the Owner. 8.3 PAYMCN"I'S ON ACCOUNT OT BASIC SCRVICES 8.3.1 Payments for Basic Services shall be made monthly and, where applicable, shafl be in proportion to services performed within each phase of service, on the basis set forth in Section 2 of the Agreement and Ure schedule of work. 8.3.2 If and to the exYent that the time initially esYablished in the Agreement is exceeded oe extended througJ� no fault of the Desigi Professional, compensa[ion for any services rendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement. 8.3.3 When compensation is based on a percentage of Construction Cos[ and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are perfonned on those portions, in accordance with the schedule set forth in Section 2 of the Agreement based on (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate ofConstruction Cost for such portions ofthe Project. 8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SGRVIC�S Page 17 S:\City Managee's Office\cmoUon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibil F- PSA Architect or Engineer 12-10-13 FINAL with dates comple4ed.docx 8.4.1 Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within 30 days aRer the presentation to the Owner of the Design Professional's statement of services eendered oe expenses incurred. 8.5 PAYMENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums withheld from payments eo contractors, or on account of the cost of changes in the work other than those for which the Desigi Professional is responsible. 8.6 DESIGN PItOFESSIONAL'S ACCOUN'I'ING RECORDS Design Professional shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours foe theee yeaes after the date of the final Certificate of Payment, or until any litigation eelated to Yhe Project is final, whichevee date is later. ARTICLE 9 INDEMNITY 9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and eeasonable attomey fees incurred by Yhe Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, eesulting from the negligent acts or omissions of the Design Peofessional or its officers, shareholders, agents, or employees in 4he perfoemance of the Agreement. 9.2 NoYhing herein shall be construed Yo create a liability to any person who is not a parly 4o the Agreement, and nothing heeein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of acYion, oe IitigaYion filed by anyone not a party to the Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 10 INSURANCE Dueing the performance of the Services under the Ageeement, Design Professional shall maintain the following insueance with an insurance company licensed or authoeized to do business in the State of Texas by the SYate Insurance Commission or any successoe agency that has a rating with Best Rate Carriers of aY least an A- oe above: 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and no4 less 4han $2,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not Bess than $250,000 in the aggregate. 10.2 Automobile Liability Insueance with bodily injury limits of not less Yhan $500,000 foe each person and not less than $500,000 for each accident, and wi4h peoperty damage limits of not less than $]00,000 for each accidenY. ]0.3 Worker's CompensaYion Insurance in accoedance with statutory requirements, and Employers' Liability Insurance wiYh limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits ofnot less than $1,000,000 annual aggregate. 10.5 The Design Professional shall furnish insurance certificates or insurance policic.s lt� titc t?vv�cr ��•�tis:aa��, �g�4fa�d�tACe in compliar�ce tvilia tlris ,fAriicic I f} �i ilic lip�t� of the execution of the Agreement. The General Liability and Automobile Liabilit4� i�s�tjrnrs�� uls�ic:a �)7s�li sbKtn�� i�ve Owner as ��n ad�iftiea�t�l 'a�tcut•cd, t�ae '�Jt�r�e.r�' Compensation policy shall conYain a waiver of subeoga4ion in favor of the Owner, a��cl �aba�t3 �c:yii�y sI�a1B �;��rt:�ir� ;� ��riarosion that su�ls iss�r�raa�ae si7�11 nttt ��c ��tr�c�t��i e7r modified without thirty (30) days' prioe written notiee to Owner and Design Profe��'sc�g��l. tr� s�sc1� c�resrC, tl�c 17c,�i�arx �'rofessional sl��a61, �fri�sr tta iler ei'i°�:vtiv� clzx�� t��'titc. change or cancellation, t'umish Owner wiYh substitute certificates of insurance meeting 4he requirements ofthis Article 10. ARTICLE 11 MISCELLANEOUS PROVISIONS 11.1 The Agreemen4 shall be govemed by the laws of the State of Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County, Texas. 11.2 The Owner and Design Professional, respectively, bind themselves, their parmees, successors, assigns and legal representatives to the other party Yo this Agreement and to the partners, successors, assigns and legal representatives of such other pariy with respect to all covenants of this Agreement. The Design Professional shall not assign its interests in the Agreement without the written consent of the Owner. 113 The term Agreement as us�:�l I�c��wds� inc�lud��: �I�e �.*r%�tGis:r� �1�r��nsce�le iPtes� £3c.a��ral C`c�i��iCir�rss �r��l t�ti��r �Ii.��hmco�IS �� fi�r�n�ic9 irt �cctit�w 3 c,i'tl��:.:'��.iti:csrac�si ��lz's�� together represent the entire and �3�t�.��at�ct s�f�r��rrieirt i�:9sv�:r� ti�� +�zsce :�r�tE N7�^xi�� ➢'resl��si�7s��1 ;an� s��:r�a�si�:� �l �ri�}i s�c;�,�s#s�iiun�, r�pr�s�r�t�licins ��r ti��r�s;ziber�ts, cithcr written or oraL The Agreement �taa} L7e �in�ixi�°�1 e�ttly �ry �rristc;�� nssl�Et�asci�t si�r��t! t�� hnfh [�^�w��r r�r�t� f7esi�:n 15ra�f�4:5i�xs�1, V4'he;n stti�r�AOS°Ciir� 4�r� ,R�-�si��ent l�a�: ux��ta��l Agreement, these General Conditions and the other attachments referenced in Section l ttt itt� r��i�c:na�s�� siiall 1� llz4 �xtci�C ikrat i�; rctasa��.�l�ly �asas�i�rl�;: �r� r�:�ci s� a� t�s harmonize the provisions. Howevee, should the provisions of chese documen4s be in casakii��:t s« tl�arl t6s��F ��tsa��t�l I�� r�<s�css��t�ly I�arn7��pa�;ra,t�, s��cia �fc�tips��cr�t� s1�n11 isc� �ivcsi priority in Yhe following order: 1. The execu[ed Ageeement 2. Attachments referenced in Section 3 of the Agreement 3. These General Provisions 11.4 Nothing contained in the Agreement shall create a contraclual relationship with or a cause of action in favoe of a third party against either fhe Owner or Design Professional. I 1.5 Upon receipt of prior written approval of Ownee, the Design Professional shall have the right to include representations ofthe design of the Project, including photographs of the exterior and interior, among the Design Professional's promotional and professional materials. The Design Professional's materials shall not include the Ownee's Page 1 g S:\CiYy Manager's O�ce\cmoVon FortuneV Iotel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-] 0-13 F1NAL with dates completed.docx confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific infortnation considered by the Owner to be confi- den4ial oe proprietary. The Owner shall peovide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project. 11.6 Approval by the Ownee shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, iYs employees, associaYes, agents, subcontractors, and subDesign Professionals for the accueacy and competency of their designs or othee work; noe shall such approval be deemed to be an assumption of such responsibility by the Ownee for any defect in the design or other work prepaeed by the Design Professional, its employees, subcontractors, agents, and Design Professionals. 11.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered oe mailed to the eespective parties by depositing same in the United States mail to Yhe address shown below signature block on the Agreement, certified mail, retum receipt requested, unless otherwise specified herein. All notices shall be deemed effecYive upon receipt by the party Yo whom such notice is given, or within three (3) days after mailing. 11.8 If any provision of the Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform Yhe Agreement Yo replace such stricken provision with a valid and enfoeceable provision which comes as close as possible to expressing the intenYion of fhe stricken provision. 11.9 The Design Professional shall comply with all federal, state, and local laws, eules, regulations, and oedinances applicable to the woek covered hereunder as they may now read or hereinafter be amended during the term of this AgreemenY. 11.10 In performing the Services eequired hereunder, the Design Professional shall not discriminate against any peeson on the basis of race, color, religion, sex, national origin oe ancestry, age, or physical handicap. 11.11 The captions of the Agreement are for informational purposes only, and shall not in any way affecY the substantive terms oe condiYions of the Agreement. ] 1.12 Owner Understands and acknowledges that Design Professional, in implementing its fiduciary responsibilities for the Owner, will delegate many of iYs duties and responsibiliYies heeein to fhe general conYractoe, outside design professionals and other subcontractors hired by Design Professional to provide various design, inspection, peocurement, installation and related services. Regardless of such delegation, Design Professional will remain absolutely responsible Yo Owner for the services required hereunder. Nothing herein shall affect the Design Professional's fiduciary responsibility to the Owner as set forth in Chapter 2269 of the Texas Local Govemment Code. Page 19 S:\City Manager's Office\cmoUon Fortune\Hotel & Convention Center\Oreilly\Developers Agreement\December 17 Documents (final)\Word Version of Documents\Exhibit F- PSA Architect or Engineer 12-10-13 FINAL with dates completed.docx Attachment A CONFLICT OF INTEREST QUESTIONNAIRE � _ _�� For vendor or other nerson doir�q business with local qov�rnmental er�t FORM CIQ This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a oate Reoe��ed person who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. of person who has a business relationship with local govern � Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated comp�eted questionnaire with the appropriate filing authority not later than the 7`h business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C& D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? � Yes � No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? ! � Yes � No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer senres as an officer or director, or holds an Ownership of 10 percent or more? -�� Yes � No D. Describe each affiliation or business relationship. Signature of person doing business with the governmental entity Date Page 20 S:\City Manager's Office\cmoUon Fortune\Hotel & Conven4ion Center\Oreilly\Developers Agreement\December 17 Documents (final}\Ward Version of Documents\Exhibit F- PSA Architect or Engineer 12-10-13 FI]VAL with dates completed.docx _ i . I �_ C:ITY i OF DENTON Attachment B City of Denton Purchasing 901-B Texas St. Denton, TX 76209 Phone: (940) 349-7100 Fax: (940) 349-7302 www dentonpurchasinp.com Substitute W-9 Form __ _ The IRS requires all vendors to complete a W-9 Form. The information on this form must be filled out, signed and submitted by a vendor representative. All information must be completed before a purchase order or payment will be issued. Name as shown on your income tax return: Tax ID/Social Security #: Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxtaxpayer identification number (or I am waiting for a number to be issued to me), and 2. I am not subject to backup withholding because (a) I am exempt from backup witholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. I am a US citizen or other U.S. person-for fededral tax purposes as defined at the bottom of this page*. Authorized Signature: _._ Printed Names Mailinq Address: Company Name: Contact Name: Address: Check appropriate box for federal tax classification (requiredl: Individual/ � Sole ❑ Corporation � Partnership Proprietor Must designate C or S � C � Exempt � S �,.,...�� Business Type Type of Organization: Real Estate � Rental/Lease (A1) Services Only (A- ❑ �) ConsultanUProf Fees (A-7) Minority � Owned Equipment � Rental/Lease (A-9) Merchandise- ❑ Goods Only (A-7) Proceeds from Real Estate I—I Purchases(S) ❑ Female Owned Email: Website: Phone Number: Fax Number: Limited Other � Liability ❑ Please specify: Corporation � Royalties (A-2) � Medical/Health Care (A-6) Merchandise & ❑ Services (A-7) � Legal Firm/Attomey (A-C) ❑ Non Profit ❑ Historically Underutilized Business "Definition of a U.S. Person-For Federal Tax purposes, you are considered a U.S. person if you are: (a) an individual who is a U.S. citizen or U.S. resident (b) a partnership, corporation, company, or association created or organized in the United States or under the laws of the United States (c) an estate (other than a foreign estate), or (d) a domestic trust (as defined in Regulations Section 301.7701-7). COD Page 1 9/23l2011 Attachment B Vendor Information Not Required for W-9 Form Remit Address (if different from abovel Company Name: Contact Name: Add ress: Email: Phone Number: Fax Number: ACH Information-Voluntarv ABA Routing#: Contact Name : Bank Account# Bank Name : ACH Email : ACH Email : Phone Number: Fax Number: I(we) authorize the City of Denton to deposit payments into the checking account listed. The authority remains in effect until the Ctty of Denton has received written notification from me of termination In time to allow reasonable opportunity to act on it, or until the City of Denton has sent me written notice of termination of the agreement. Vendor Signature Print NamelTitle Date List Products and/or Services Interested in Bidd For Internal Use Only ❑ New Vendor ❑ Vendor Change Vendor Number ❑ Refund Requesting Department: Department Representative (Printed Name) Date; Purchasing Signature: Date: COD Page 2 9/23/2011