Page 48 provided under Article XX. 22.2.1 Contents of Time Extension Requests - Each Time Extension Request shall be accompanied by a quantitative demonstration of the impact of the delay on project completion time, based on the current Project Schedule. Time Extension Requests shall include a reasonably detailed narrative setting forth (1) the nature of the delay and its cause, (2) the basis of the Design - Builder's claim of entitlement to a time extension, (3) documentation of the actual impacts of the claimed delay, and any concurrent delays, (4) description and documentation of steps taken by the Design - Builder to mitigate the effect of the claimed delay, including, when appropriate, the modification of the Project Schedule, and (5) such other information that the Design - Builder considers necessary to justify its claim for an extension of time. No time extensions shall be granted for delays that do not affect the Project completion time. 22.2.2 PEDC’s Response. PEDC shall respond to the Time Extension Request by providing to the Design - Builder written notice of the number of days granted, and giving its reason if this number differs from the number of days requested by the Design - Builder. Such an Extension of Time is effective on the date PEDC’s notice is received by the Design - Builder, but a Change Order reflecting the Extension of Time shall be executed by the parties in accordance with Article XX. PEDC will respond to each properly submitted Time Extension Request within fifteen (15) calendar days following its submittal; if PEDC cannot reasonably make a determination about the Design - Builder's entitlement to a time extension within that time, PEDC shall so notify the Design - Builder in writing. 22.3 Suspension of Work for Cause - PEDC may, at any time without prior notice, suspend all or any part of the Work, if, in PEDC’s reasonable opinion, it is considered reasonably necessary to do so to prevent or correct, any condition of the Work, which constitutes an immediate safety hazard, or which may reasonably be expected to impair the integrity, usefulness or longevity of the Work when completed; provided that PEDC has first given Design - Builder written notice of any such determination and afforded Design - Builder at least thirty (30) days to cure or correct such condition; provide, further, that if such condition cannot reasonably be cured within such thirty (30) day period, such thirty (30) day period shall be extended for a reasonable period of time so long as Design - Builder has within such thirty (30) day period commenced curing the same and thereafter diligently pursues curing the condition. PEDC shall give the Design - Builder a written notice of suspension for cause, setting forth the reason for the suspension and identifying the Work to be suspended. Upon receipt of such notice, the Design - Builder shall immediately stop the Work so identified. As soon as practicable following the issuance of such a notice, PEDC shall initiate and complete an investigation of the circumstances giving rise to the suspension, and shall issue a written determination of their cause. The Design - Builder will not be entitled to an extension of time or compensation for delay resulting from a suspension if the cause was within the control of the Design - Builder. If the cause is determined not to have been within the control of the Design - Builder, and the suspension prevents the Design - Builder from completing the
Page 49 Work within the Construction Time, the Design - Builder shall be entitled to a Change Order increasing the Contract Sum and/or extending the Construction Time caused by any such suspension of Work. Suspensions of work under this provision shall be no longer than is reasonably necessary to identify and remedy the conditions giving rise to the suspension. Article XXIII - Termination and Suspension of the Design - Build Agreement Prior to Completion 23.1 Termination by PEDC for Cause - PEDC may, without prejudice to any right or remedy terminate the employment of the Design - Builder and take possession of the Design Documents and of all materials, equipment, tools, construction equipment and machinery thereon owned by the Design - Builder, under the following circumstances: a. If at the end of the Design Development/Cost Estimate phase, the Design - Builder and PEDC fail to agree on the total cost of the Project, the PEDC may pay for design work to date and take possession of the documents with full rights to utilize them for future building purposes. b. Persistent or repeated failure or refusal, except during complete or partial suspensions of work authorized under the Contract Documents, to supply enough properly skilled workmen or proper materials; c. Persistent disregard of laws, ordinances, rules, regulations or orders of any public authority having jurisdiction; d. Persistent failure to prosecute the Work in accordance with the Design - Build Agreement, and to insure its completion within the time, or any extension thereof, specified in this Design - Build Agreement; Failure to remedy defective work condemned by the DR pursuant to Article XII; e. Failure to pay subcontractors, laborers, material men and suppliers pursuant to Texas Government Code Chapter 2251; f. Persistent endangerment, by the Design - Builder or its Subcontractors or other vendors, of the safety of labor or of the Work itself; g. Failure to supply or maintain statutory bonds, pursuant to Article IV, or the supply or maintain required insurance, pursuant to Articles V and VI; or h. Any other material breach of the Design - Build Agreement. PEDC reserves the right to terminate at any time for any of the above listed causes. Failure to exercise the right to terminate in any instance or for any proper reason shall not be construed as waiver of the right to do so in any other instance or for any other proper reason. 23.1.1 The DR shall give the Design - Builder and its Surety thirty (30) days' prior
Page 50 written notice of its intent to terminate for any of the above reasons. If the Design - Builder or the Surety demonstrates, to the reasonable satisfaction of PEDC, that the condition or conditions upon which the notice of termination is based have been removed, corrected, or will not recur, within thirty (30) days after receipt of PEDC’s notice, provided that if any such default cannot reasonably be cured within such thirty (30) day period, such thirty (30) day period shall be extended for a reasonable period of time; provided, further, that Design - Builder has within such thirty (30) day period commenced to cure such default and thereafter diligently pursues curing the same, then PEDC may rescind the notice and the Design - Build Agreement shall continue unmodified, and the Design - Builder shall not be entitled an extension of time. 23.1.2 Should the Design - Builder or the surety fail to so demonstrate within thirty days following receipt of such notice (or such longer period as may be reasonably necessary, so long as Design - Builder or its surety is diligently pursuing such cure), or fail to reasonably satisfy PEDC that the condition or conditions upon which the notice of termination is based have been removed, corrected, or will not recur, PEDC may arrange for completion of the Work and deduct the cost thereof from the unpaid Contract Sum remaining, including the cost of additional Architect/Engineer services made necessary by such default or neglect, in which event no further payment shall then be made by PEDC until all costs of completing the Work shall have been paid. If the unpaid balance of the Contract Sum exceeds the costs of finishing the Work, including compensation for the Architect/Engineer's additional services made necessary thereby, such excess shall be paid to the Design - Builder. If such costs exceed the unpaid balance, the Design - Builder or his surety shall pay the difference to PEDC. This obligation for payment shall survive the termination of the Design - Build Agreement. In addition to any rights PEDC may have against any surety, PEDC reserves the right, where the Design - Build Agreement is terminated for cause, to take assignment of any and all contracts between the Design - Builder and the Architect/Engineer and between the Design - Builder and its Subcontractors, vendors and suppliers, and PEDC shall promptly notify the Design - Builder of the contracts PEDC elects to assume, provided that upon assumption of such contracts by PEDC, PEDC shall be responsible for any and all further loss, liability, damage or expense arising under any such contracts assumed by PEDC . Upon receipt of such notice, the Design - Builder shall promptly take all steps necessary to effect such assignment. 23.2 Termination by Design - Builder - If the Work is stopped for a period of sixty (60) days under an order of any court or other public authority having jurisdiction, or as a result of an act of government, such as a declaration of a national emergency making materials unavailable, through no act or fault of the Design - Builder or a contractor, subcontractor or their agents or employees or any other persons performing any of the Work under a contract with the Design - Builder, then the Design - Builder may, upon thirty (30) additional days' written notice to the DR, terminate the Design - Build Agreement and recover from PEDC payment for all Work executed and for any provable loss and reasonable expenses attributable to
Page 51 the Work resulting from such termination. If the cause of the Work stoppage is removed prior to the end of the thirty (30) day notice period, the Design - Builder may not terminate the Design - Build Agreement. 23.3 Settlement on Termination - When the Design - Build Agreement is terminated for any reason, the Design - Builder shall, at any time prior to ninety (90) calendar days of the effective date of termination, submit a final termination settlement proposal to PEDC based upon recoverable costs as provided herein. If the Design - Builder fails to submit the proposal within the time allowed, PEDC may determine the amount due to the Design - Builder because of the termination and shall pay the determined amount to the Design - Builder. All settlements on termination shall be administered as a Change Order. Article XXIV - Miscellaneous 24.1 Written Notice - Written notice shall be considered to have been duly given if the document is delivered in person to the individual or member of the firm or to an officer of the corporation for whom it is intended, if delivered at or sent by registered or certified mail to the last business address known to one who gives the notice, or transmitted by fax machine, with a receipt retained to prove delivery. Notice is deemed effective upon the date shown on a receipt recognized in the due course of the stated methods of delivery. 24.2 Computation of Time - In computing any time period set forth in this Design - Build Agreement, the first day of the period shall not be included, but the last day shall be. 24.3 Survival of Obligations - All representations, indemnifications, warranties and guarantees made in accordance with the Design - Build Agreement Documents will survive final payment, completion and acceptance of the Work, as well as termination for any reason. All duties imposed upon the Design - Builder by reason of termination, including without limitation the duty to assign contracts with contractors, subcontractors, vendors and suppliers, shall likewise survive the termination of the Design - Build Agreement. 24.4 No Waiver of Performance - The failure of either party in any instance to insist on the performance of any of the terms, covenants or conditions of the Design - Build Agreement Documents, or to exercise any of the rights granted there under, shall not be construed as waiver of any such term, covenant, condition or right with respect to further performance. 24.5 Governing Law - This Design - Build Agreement shall be governed by the law of the State of Texas. 24.6 Venue - Venue for any cause of action by either party shall be in a court of competent jurisdiction in Harris County, Texas. 24.7 Captions - The captions used throughout the Design - Build Agreement are for ease of reference only and have no effect on the meaning of the terms and
Page 52 conditions set forth herein. 24.8 Independent Design - Builder Status - The Design - Build Agreement Documents create an independent Design - Builder relationship between PEDC and Design - Builder and neither party's employees or Design - Builders shall be considered employees, Design - Builders, partners or agents of the other party. 24.9 No Third Party Beneficiaries - The parties do not intend, nor shall any clause be interpreted to create in any third party, any obligations to, or right of benefit by, such third party under these Design - Build Agreement Documents from either PEDC or Design - Builder. 24. 10 Entire Agreement - These Design - Build Agreement Documents are intended to complement the Request for Qualifications (RFQ) dated 9/22/2004 from MCC and Request for Proposal (RFP) dated 7/27/2005 from MCC. In case of conflict the Design - Build Agreement supersedes, in full, all prior discussions and agreements (oral and written) between the parties relating to the subject matter hereof and constitutes the entire agreement. 24.11 Assignment - This Design - Build Agreement may not be assigned by either party without the prior written consent of the other, except either party may, upon notice to the other party but without the other party's consent, assign this Design - Build Agreement to a present or future affiliate or successor, provided that any such assignment by the Design - Builder shall be contingent on MCC's Absolute Guaranty of performance. 24.12. Severability - If any provision, sentence, clause or article of this Design - Build Agreement is found to be invalid or unenforceable for any reason, the remaining provisions shall continue in effect as if the invalid or unenforceable provision were not in the Design - Build Agreement. All provisions, sentences, clauses and articles of this Design - Build Agreement are severable for this purpose. 24.13 Parties Bound - Execution of this Design - Build Agreement by each party binds the entity represented as well as its employees, agents, successors and assigns to its faithful performance. 24.14 Sovereign Immunity – PEDC does not waive governmental immunity from suit or liability except to the extent that the Texas Tort Claims Act (Civil Practice and Remedies Code Chapter 101) or except as otherwise provided by other applicable constitutional, statutory or case law, including Chapters 501 to 505 of the Texas Local Government Code, as amended. Article XXV — Indemnification 25.1 INDEMNIFICATION OF THE PEDC. INDEMNITY CLAUSE
Page 53 THE DESIGN - BUILDER SHALL DEFEND, INDEMNIFY AND SAVE HARMLESS THE PEDC AND ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, PENALTIES, DAMAGES, EXPENSES AND JUDGMENTS OF ANY NATURE AND HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THE DESIGN - BUILDER AND ITS AGENTS, SERVANTS OR EMPLOYEES AND ALL WORK PERFORMED BY DESIGN - BUILDER UNDER THIS CONTRACT, INCLUDING THOSE CLAIMS, DEMANDS, PENALTIES, DAMAGES, EXPENSES AND JUDGMENTS WHICH INVOLVE OR MAY INVOLVE THE ACTUAL OR ALLEGED JOINT NEGLIGENCE OF: (i) THE DESIGN - BUILDER OR ANY OF ITS EMPLOYEES, AGENTS, SERVANTS OR EMPLOYEES; AND (ii) THE PEDC, ITS OFFICERS, AGENTS OR EMPLOYEES. IT IS THE EXPRESSED INTENTION OF BOTH THE PEDC AND THE DESIGN - BUILDER THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION IS INDEMNITY BY THE DESIGN - BUILDER TO INDEMNIFY AND PROTECT THE PEDC FROM THE CONSEQUENCES OF THE NEGLIGENCE OF THE PEDC, ITS OFFICERS, AGENTS OR EMPLOYEES WHERE SUCH NEGLIGENCE IS A CONCURRING CAUSE OF INJURY, LOSS, DEATH OR DAMAGE. FURTHERMORE, IT IS THE EXPRESSED INTENTION OF BOTH THE PEDC AND THE DESIGN - BUILDER THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL HAVE NO APPLICATION TO ANY CLAIMS, LOSS, DAMAGE, CAUSE OF ACTION, SUIT OR LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE NEGLIGENCE OF THE PEDC UNMIXED WITH THE FAULT OF THE DESIGN - BUILDER OR ANY OF ITS EMPLOYEES. FOR PURPOSES OF THIS INDEMNIFICATION PROVISION, ACTS AND/OR OMISSION OF THE DESIGN - BUILDER’S OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES SHALL BE CONSIDERED THE ACTS AND OMISSIONS OF THE DESIGN - BUILDER. 25.1.1 The provisions of this Indemnification are solely for the benefit of the parties hereto and PEDC’s successor or assignee, if any, and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. 25.1.2 The Design - Builder shall promptly advise PEDC in writing of any claim or demand against PEDC or Design - Builder known to the Design - Builder which is related to or arising out of the Design - Builder’s activities under this Design - Build Agreement.
Page 54 IN WITNESS WHEREOF, the parties have hereunto affixed their signatures effective as of the date first written above. Way-tech, Inc. Pasadena Economic Development Corp. 6124 Westview, 1149 Ellsworth Dr. Houston, TX 77055 Pasadena, TX 77506 BY: BY: Signature Signature Executive Director Title Title Rick Guerrero Printed Name Printed Name APPROVAL RECOMMENDED: Signature PEDC Board President Title Richard Lord Printed Name Date
Page 55 EXHIBIT A Legal Description of Site
Page 56 EXHIBIT B Accepted Plans and Specifications
Page 57 EXHIBIT C Absolute Guaranty
Page 58 EXHIBIT D Schedule of Values
Page 59 EXHIBIT E Intentionally Left Blank
Page 60 EXHIBIT F Information provided to Design - Builder (§4.7)
Page 61 EXHIBIT G Project Schedule
Page 62 EXHIBIT H HUB Subcontracting Plan Report
Page 63 EXHIBIT I Commissioning Reports
Page 64 ASSIGNMENT OF DESIGN - BUILD AGREEMENT Assignment ___________________, hereby assigns to __________________ all right, title and interest of ______________________ in and to the foregoing Design - Build Agreement with the Pasadena Economic Development Corporation, subject to the Absolute Guaranty in favor of the Pasadena Economic Development Corporation from ______________________ for the performance of this Design - Build Agreement Dated as of the ______________ day of _____________, 2023. By: Acceptance and Assumption Assignee hereby accepts the foregoing assignment of the Design - Build Agreement and agrees to assume and perform all obligations of the ___________________________ as Design - Builder there under. This acceptance and assumption shall have no effect on the Pasadena Economic Development Corporation Absolute Guaranty by __________________. Dated as of the __________ day of ___________________, 2023. By: By: By: