EXHIBIT 10.16
CONSTRUCTION MANAGEMENT AGREEMENT
This CONSTRUCTION MANAGEMENT Agreement ("Agreement") is entered into effective
as of September 30, 2005 (the "Effective Date"), by and between SiteWorks
Building & Development Co, SBD, ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇, phone
▇▇▇-▇▇▇-▇▇▇▇ ("Construction Manager" or "Project Manager") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, phone ▇▇▇-▇▇▇-▇▇▇▇, hereinafter
referred to as "Owner."
ARTICLE I PROJECT
1.01 Owner intends to complete the construction of the residence located at
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as per revised plans and specs
dated July 8, 2005 and prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Architect, P.A.
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, phone
▇▇▇-▇▇▇-▇▇▇▇ (the "Project") for which Owner intends to achieve
substantial completion for all stages of construction (as defined
below) on or before March 30, 2006. The contract time and the date by
which substantial completion should be achieved will be established
when and if Owner accepts Contract Manager's Guaranteed Maximum Price
proposal, approval of Washington Mutual Bank, and City of Plantation
Building Dept. permit approval.
1.02 SCOPE of WORK:
Project Management.
o Securing Building Permit
o Management of the Subcontractors
o Monitoring project schedule
o Scheduling inspections
o Quality control
o Approval of progress payments
o Insuring project completion and certificate of occupancy
obtained
ARTICLE II DEFINITIONS
2.01 Certain Definitions:
(a) Contract Documents: The Contract Documents between Owner and Construction
Manager; Construction Manager shall perform all of its services and construct
the Work (as defined below) pursuant to the entire Contract. Duties and
obligations of Project Manager which are described in this Agreement may be
expanded or further defined by additional provisions of the other Contract
Documents. "Project Manager" shall be substituted for "Contractor" or "Project
Manager".
(b) Construction Cost Limitation: The cost limit for construction
which must not be exceeded as a result of the design of the Design Consultant
and which may be stipulated in a contract with a Design Consultant.
(c) . Construction Phase: The implementation and execution of the construction
work required by the Contract Documents. The construction of the Project may be
divided into different stages each with different dates for implementation and
completion (referred to as a "Stage").
(d) Project Team: The Owner, Project Manager, Design Consultant(s), any separate
contractors employed by Owner, and other consultants employed for the purpose of
programming, design, and construction of the Project. The constitution of the
Project Team may vary at different phases of the Project. The Project Team will
be designated by Owner and may be modified from time to time by Owner.
(e) Day: The calendar day unless otherwise specifically designated.
(f) Design Consultant: Licensed professionals, or firms employing such licensed
professionals, engaged by Owner as independent consultants for design of all or
a portion of the Project Improvements and to prepare drawings and specifications
for the construction of the Project (the "Drawings and Specifications"). More
than one such professional or firm may be employed by Owner. (All such
professionals or firms, regardless of number, may be referred to in the singular
herein,)
(g) Final Completion: as defined by AIA or industry Standard Uniform and
Supplementary General Conditions.
(h) General Conditions Work: As defined by standard practice
(i) Blank
(j) Preconstruction Phase: The programming, schematic design, design
development, construction documents and bidding phases.
(k)Preliminary Project Cost: The total estimated cost of all project
development, including design, construction, and other associated costs which is
established prior to the commencement of design.
(I) Project Construction Budget (PCB): The budget established for the site
preparation and construction of all the Project Improvements and facilities
relating to and being a part of the Project, which includes the Construction
Cost Limitation and other costs specified by Owner,
(m) Project Improvements: All project facilities requiring construction,
including all preparatory matters prior to construction, such as site
preparation.
(n) Standards and Standard Specifications: The construction and design
requirements including standards of BOCA or National Building Code, Florida
Building Code and various building and life safety code specified by OFPC which
are hereby incorporated by reference,
(o) Subcontractors: All trade contractors, separate contractors, and
subcontractors entering into contracts ("Subcontracts") with the Project Manager
for the performance of the Work. The relationship between the Project Manager
and the Subcontractors shall be that of a Project Manager to its subcontractors
unless otherwise approved in advance in writing by Owner, or except when Owner
enters into a separate contract directly with a Subcontractor.
(p) Substantial Completion Date of: As indicated, March 30, 2006
(q) Total Project Cost: The total budget established for the Project by
the SiteWorks Building & Development, SBD (Project Manager) or the (OWNER) at
the end of the design development phase (subject to subsequent modification by
Owner), which includes but is not limited to professional services costs,
Project Manager's costs, the costs of the General Conditions items, furniture,
fixtures and equipment costs, landscaping costs, moving costs, and other
miscellaneous costs.
(r)Work: The provision of all services, labor, materials,
supplies, and equipment which are required or reasonably inferable to complete
the Project in strict accordance with the requirements of the Contract Documents
(as such may be modified or amended). The term "reasonably inferable", takes
into consideration the understanding of the parties hereto, that not every
detail will be shown in the Contract Documents. The Project Manager shall not be
entitled to an increase in the Guaranteed Maximum Price (as described elsewhere
in this agreement due to the absence of any detail or specification the
Contractor may require or for any construction which may be found necessary as
the work progresses in order to complete the construction of the Project. If an
item or system is either shown or specified, all material and equipment required
for the proper installation of such item or system and needed to make a complete
operating installation shall be provided whether or not detailed or specified,
omitting only such parts as are specifically excepted by the Owner.
Notwithstanding the above, the Contractor shall not be responsible for design,
except incidental designing/detailing as required by the Specifications for shop
drawing purposes.
ARTICLE III DESIGNATION OF PROJECT MANAGER AND DUTIES
3.01 The Owner hereby designates and appoints the Project Manager and authorizes
the Project Manager to so act in connection with the scope of work and services
set forth and described in this Agreement.
3.02 Notwithstanding anything to the contrary contained in this Agreement, Owner
and Project Manager agree and acknowledge that Owner is entering into this
Agreement in reliance on Project Manager's special and unique abilities with
respect to performing its obligations hereunder, Project Management. The Project
Manager accepts the relationship of trust and confidence established between it
and the Owner by this Agreement. Project Manager covenants with Owner to use its
best efforts, skill, judgment, and abilities to perform the services hereunder
and to further the interests of Owner in accordance with Owner's requirements
and procedures, in accordance with the highest standards of Project Manager's
profession or business and in compliance with all applicable national, federal,
state, municipal, laws, regulations, codes, ordinances, orders and with those of
any other body having jurisdiction, Project Manager warrants, represents,
covenants, and agrees that there are no obligations, commitments, or impediments
of any kind that will limit or prevent performance of the services required
hereunder.
3.03 The Project Manager warrants, represents, covenants, and agrees that all of
the Services to be performed by the Project Manager under or pursuant to this
Agreement shall be of the standard and quality which prevail among similar
businesses and organizations of superior knowledge and skill engaged in
providing similar services in major United States urban areas under the same or
similar circumstances and involving a project such as "The Project".
3.04 The Project Manager's duties as set forth herein shall at no time be in any
way diminished by reason of any approval by the Owner nor shall the Project
Manager be released from any liability by reason of such approval by the Owner,
it being understood that the Owner at all times is ultimately relying upon the
Project Manager's skill and knowledge in performing the services required
hereunder. Project Manager accepts no responsibility for contracted work done
prior to September 1, 2005 and this work will not be guaranteed by Siteworks
Building & Development Co., Inc.
3.05 The Project Manager warrants, represents, covenants, and agrees that all
persons connected with the Project Manager directly in charge of its services
arc duly registered and/or licensed under the laws, rules and regulations of any
authority having jurisdiction, if so required, by such laws, rules and
regulations.
3.06 The Project Manager warrants, represents, covenants, and agrees to call to
Owner's attention anything of any nature in any drawings, specifications, plans,
sketches, instructions, information, requirements, procedures, and other data
supplied to the Project Manager (by the Owner or any other party) which it
regards in its opinion as unsuitable, improper, or inaccurate in connection with
the purposes for which such document or data is furnished. Nothing shall excuse
or detract from the Project Manager's responsibilities or obligations hereunder
in a case where such document or data is furnished unless the Project Manager
advises Owner in writing that in its opinion such document or data and any
requests made therein for action are unsuitable, improper, or inaccurate and
Owner confirms in writing that it wishes the Project Manager to proceed in
accordance with the data as originally given.
3.07 The Project Manager warrants, represents, covenants, and agrees to furnish
efficient business administration and superintendence and perform its services
hereunder or pursuant in this Agreement in the best way and in the most
expeditious and economical manner consistent with the interests of Owner.
3.08 The Project Manager warrants, represents, covenants, and agrees that it
shall notify owner of any defects in the Preconstruction Phase Services as soon
as the Project Manager becomes aware of such defects or is notified of such
defects.
3.09 Project Manager warrants, represents, and agrees that if it is a
corporation or limited liability company, then it is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, or a foreign corporation or limited liability company duly authorized
and in good standing to conduct business in The State of Florida, that it has
all necessary corporate power and has received all necessary corporate approvals
to execute and deliver the Agreement, and the individual executing the Agreement
on behalf of Project Manager has been duly authorized to act for the Project
Manager, or (ii) if it is a partnership, limited partnership, or limited
liability partnership, then it has all necessary partnership power and has
secured all necessary approvals to execute and deliver this Agreement and
perform all its obligations hereunder. The individual executing this Agreement
on behalf of Project Manager has been duly authorized to act for and bind
Project Manager.
3.10 Neither the execution and delivery of this Agreement by Project Manager nor
the performance of its obligations hereunder will result in the violation of any
provision, if a corporation, of its articles of incorporation or by-laws, if a
limited liability company, of its articles of organization or regulations, or if
a partnership, by any partnership agreement by which Project Manager is bound,
or any agreement by which Project Manager is bound or to the best of the Project
Manager's knowledge and belief, will conflict with any order or decree of any
court or governmental instrumentality relating to Project Manager.
3.11 Except for the obligation of Owner to pay Project Manager certain fees
and expenses pursuant to the terms of this Agreement, and to perform
certain other obligations pursuant to the terms and conditions
explicitly set forth herein, Owner shall have no liability to Project
Manager or to anyone claiming through or under Project Manager by
reason of the execution or performance of this Agreement.
Notwithstanding any obligation or liability of Owner to Project
Manager, no present or future partner or affiliate of Owner or any
agent, officer, director, employee, or agent of Owner, or of the
components comprising the Owner, or anyone claiming under Owner has or
shall have any personal liability to Project Manager or to anyone
claiming through or under Project Manager by reason of the execution or
performance of this Agreement.
ARTICLE IV PROJECT MANAGER'S PERSONNEL AND SUBCONTRACTORS
4.01 The Project Manager's personnel and associated sub-consultants to be
employed in the Project, shall be identified in Exhibit A. The personnel and
entities identified in Exhibit A shall not be changed except with the Owner's
prior written agreement, which shall not be unreasonably withheld.
4.02 All subcontracts shall be awarded in accordance with the normal industry
standards. Project Manager shall notify Owner in advance in writing of the
identities of all Subcontractors with which it intends to subcontract. Project
Manager shall not subcontract with any Subcontractor to which Owner has a
reasonable objection. Such notice shall be given sufficiently in advance to
permit Owner adequate time for review without delay to the Project, and allowing
time for Project Manager to make substitute selections, but in no event shall
such notice be given less than ten (10) days before the intended subcontract
date. Project Manager shall not be required to subcontract with any
Subcontractor to which it has reasonable objection, or if such subcontract is
not in accordance with normal industry practice. If Project Manager intends to
submit a proposal for subcontract work, it shall notify Owner in writing prior
to soliciting proposals from potential subcontractors. When Project Manager's
Subcontractors for constructing the work have been identified, they shall not be
changed without Owner's prior written approval, which shall not be unreasonably
withheld. Project Manager shall not incur any Subcontract costs prior to
issuance by Owner of a Notice to Proceed for such work.
ARTICLE V
PROJECT MANAGER'S SERVICES
PART 1: PRECONSTRUCTION PHASE SERVICES
5.01 Design drawings, permitting of all required drawings for the project.
ARTICLE VI
PROJECT MANAGER'S SERVICES:
PART 2: CONSTRUCTION PHASE SERVICE
6.01 The Construction Phase shall be deemed to commence upon the earlier of (i)
the date specified in a Notice to Proceed issued by Owner after approval by
Owner of a Guaranteed Maximum Price for the Work or portion of the Work
specified in such Notice to Proceed, (ii) the issuance of a purchase order by
Project Manager for materials or equipment for the Project after prior written
authorization by Owner, or (iii) award of a Subcontract in accordance with the
requirements of this Contract and after prior written authorization by Owner.
Preconstruction Phase Services may overlap Construction Phase Services. In
implementation of the responsibilities and duties of the Project Manager for the
Construction Phase, the Project Manager shall provide the following services:
(a) Project Control.
(1) Project Manager shall manage the work in strict accordance with the Contract
Documents within the time required by the Schedule approved by Owner and as
required by Owner's Standard Uniform General and Supplementary General
Conditions, and Division I Specifications. Project Manager shall award and enter
into, as a Project Manager, all subcontracts necessary and appropriate to
provide all labor and material for the construction of the Project. Project
Manager shall self-perform work as described in the attached exhibits and other
work which has been awarded to Project Manager.
(2) Monitor (the work of the Subcontractors as required and coordinate such
work with the activities and responsibilities of the Project Team with a goal to
attain completion of the Project at a cost not to exceed the Project
Construction Budget Guaranteed Maximum Price, and to attain substantial
completion by the date set forth in Exhibit B herein, when executed.
(3) Attend Owner's Project progress meetings scheduled by Owner no less often
that once per month, and fully advise the Project Team at such meetings as to
Project status.
(4) Schedule, direct and attend regular meetings with other members of the
Project Team during the construction of the Project to discuss jointly such
matters as procedures, progress, problems and scheduling. Prior to each meeting,
the Project Manager shall prepare and distribute to the other Project Team
members a written agenda for the meeting. Prepare and distribute at each Project
Team meeting a memorandum setting forth the list of critical activities which
require immediate action and the date by when the activity must be completed,
and record and distribute the minutes of each meeting.
(5) As provided Exhibit A, maintain a competent, full-time staff at the Project
site to coordinate and provide general direction over the work and progress of
the Subcontractors on the Project.
(6) As provided in Exhibit A, establish on-site organization of personnel and
clearly defined lines of authority in order to effectuate the overall plans of
the Project Team. At a minimum, Project Manager's site personnel shall include a
project manager, project superintendent, project engineer, and appropriate
administrative support personnel.
(7) In consultation with Owner, establish procedures for coordination among the
Project Team, Subcontractors, separate contractors, design consultants, and
other consultants with respect to all aspects of the construction of the
Project, and implement such procedures.
(8) Expedite and coordinate delivery and installation of Owner-procured material
and equipment.
(9) Project Manager shall supervise and direct the work and shall be solely
responsible for construction means, methods, techniques, sequences, and
procedures for the work.
(10) In accordance with Owner's Standard Uniform General and Supplementary
Conditions, provide and pay for all labor, materials, equipment, tools,
construction equipment and machinery, water, heat, utilities, transportation,
and all other facilities and services necessary for the proper execution and
completion of the work in strict accordance with the requirements of the
Contract Documents.
(11) Obtain building permits and special permits for permanent improvements as
required by law or the Contract Documents. Assist Owner or Design Consultant in
obtaining all approvals required from authorities having jurisdiction over the
Project.
(12) Inspect the work of Subcontractors to ensure conformance with the Contract
Documents scheduling. Perform Project scheduling in compliance with Owner's
project scheduling if included therein, otherwise provide regular monitoring,
updating, and reissuing of the all project schedules as construction progresses,
including; without limitation, master Project schedules, detailed construction
schedules, submittal schedules, inspection schedules, and occupancy schedules.
Identify potential and actual variances between scheduled and probable
completion dates, review the schedules for work not started or incomplete and
recommend to the Owner adjustments in the schedules to conform with the probable
completion dates and provide summary reports to the Owner of each schedule
update and document all changes in construction schedules. Incorporate
activities of the Subcontractors and other parties affecting the progress of the
work, including; without limitation, activity sequences and durations,
allocation of labor and materials, processing of shop drawings, data, and
samples, delivery of long lead time items. Include Owner's occupancy
requirements and occupancy priorities. Evaluate Subcontractor's personnel and
equipment, and availability of supplies and materials, with respect to each
Subcontractor's ability to meet the schedule. Recommend action to Owner when any
Subcontract requirements arc not met, or appear unlikely to be met.
(c) Cost Control.
(t) Maintain cost accounting records in good form on expenditures and materials,
or for any other expenditures requiring accounting records, and afford the Owner
access to these records and preserve them for a period of four (4) years after
final payment is made by the Owner to the Project Manager.
(2) Prepare and administer, and provide to Owner, Subcontractors' schedule of
values; subcontractors' sworn statements and waivers of lien as required;
contract and disbursement summaries; change order listings; change orders;
budget cost summary reports as required by Owner.
(3) Project Manager shall promptly identify all variances between estimated
costs and actual costs, and shall promptly report such variances for the Project
Team along with recommendations for action, but in any event, no more than two
(2) business days after acquiring such information. Develop and implement a
system acceptable to the Owner for the preparation, review and processing of
change orders, change order requests, and requests for information in accordance
with Owner's Standard Uniform General and Supplementary Conditions and Division
I Specifications. Maintain strict enforcement of State of Florida prevailing
wage laws in accordance with Owner's Standard Uniform General and Supplementary
Conditions. Cooperate with Owner in monitoring the submission of the payroll
records by the various Subcontractors when requested.
(f) Special Consultants.
Assist the Owner in selecting and retaining professional services not otherwise
described in this Agreement for the Project, and coordinate these services at
the owner's request in order to meet the Schedule, without however, assuming
direct responsibility for the work of these consultants.
(g) Documents. Shop Drawings, and Submissions.
(1) The Design Consultant shall be the interpreter of the design intent of the
Construction Contract Documents, subject to the terms and conditions of the
agreement between the Design Consultant and the Owner, provided the Project
Manager shall request such interpretations from the Design Consultant, with
Owner consent, from time to time in order to facilitate the Project Manager's
accomplishment of its duties under this Agreement
(2) In collaboration with the other members of the Project Team, the Project
Manager shall establish and implement procedures for expediting the processing
and Design Consultants' approval of shop drawings and other submissions, and in
accordance with Specifications, as applicable. Receive from the Subcontractors,
review all shop drawings and other submissions for conformance with the Contract
Documents. Coordinate shop drawings and other submissions with the Contract
Documents and other related documents prior to transmitting them to other
members of the Project Team.
(3) The Project Manager shall record the progress of the Project, submit written
progress reports to the other members of the Project Team, including information
on the Subcontractor's work and the percentage of completion, and keep a daily
log of Project construction activities available to the other members of the
Project Team in accordance with Owner's Standard Uniform General and
Supplementary Conditions, and each member of the Project Manager's site
personnel, whose job function involves or includes observation of Project
construction, shall maintain a daily log of construction activities and
observations, which daily logs shall be submitted to the Owner no less
frequently than weekly for the immediately preceding week.
(4) The Project Manager shall maintain at the Project site and make available to
Owner, updated records of subcontracts, drawings, examples, purchases,
materials, equipment, maintenance and operating manuals and instructions, and
other construction related documents, including all changes and revisions, a
directory of personnel, Project correspondence, inspection procedures (as
prepared by others), testing laboratory procedures (as prepared by others),
contract changes, time extensions, progress payment data, final acceptance
procedures, instructions from Owner; and shall obtain data from Subcontractors
and maintain current set of record drawings and project manual.
(5) Coordinate and facilitate the creation of record and as-built drawings, and
the procurement of warranties and guarantees,
(6) Provide Owner with complete, unaltered copies of all Subcontracts, and all
amendments thereto. (7) Submit to Owner all documents substantiating payments to
qualifying HUB'S in a format designated by Owner.
(h) Safety
Project Manager is solely responsible for all safety precautions and programs in
connection with the work. Project Manager shall review the safety programs
developed by each of the Subcontractors and prepare and submit to Owner a
comprehensive safety program which complies with all applicable requirements of
the Occupational Safety and Health Act of 1970 and all other applicable State,
Local, or federal laws or regulations, and with any Owner-controlled insurance
program. Project Manager shall ensure compliance by the Subcontractors with
their contractual safety requirements. The existence of any Owner-controlled
insurance programs shall not operate to diminish or eliminate in any way Project
Manager's responsibilities under this paragraph.
ARTICLE VII PAYMENTS TO THE PROJECT MANAGER
7.01 Payments made to the Project Manager shall be as follows: bi-weekly draws
of $5,000.00.
(e) Additional Services:
(1) From time to time Owner may request that Project Manager perform services in
addition to those Services required or reasonably inferable herein (such
services in addition are hereinafter called "Additional Services"). Each time
the Construction Manager is requested to perform services which Project Manager
deems to be additional services, and prior to performing such additional
services, Project Manager shall complete and forward to Owner for acceptance by
Owner an "Additional Services Requisition" in the form of Exhibit C, which shall
describe in detail the nature or scope of the additional services, the basis
upon which Project Manager has determined that the requested services are
additional services, and which shall set forth the maximum amount of fees and
reimbursable expenses for which Project Manager is prepared to perform such
additional services, together with a proposed schedule for the performances of
such additional services. Project Manager shall proceed only after written
acceptance by Owner of the "Additional Services Requisition" and written
approval from Owner to proceed. This also applies to any punchlist items that
may be required.
(2) If Owner concludes that all or part of the services described in the
"Additional Services Requisition" are services already required to be performed
by Project Manager pursuant to the Agreement or are reasonably inferable there
from, then Owner shall notify Project Manager of Owner's determination and Owner
and Project Manager shall attempt, in good faith, to resolve by negotiation
their differences. If within seven (7) business days Owner and Project Manager
are unable to resolve their differences, then Project Manager shall nevertheless
perform the services requested by Owner as if the services were services
required to be performed pursuant to this agreement without prejudice, however,
to Project Manager's right to pursue a claim for compensation for such disputed
services.
(3) Upon acceptance by Owner, each Additional Services Requisition and the
services performed by Project Manager pursuant to such Additional Services
Requisition shall become part of this Agreement and shall be subject to all the
terms and conditions of this Agreement, as fully and completely as though the
same had been included in this Agreement as a required Service at the original
execution of this Agreement.
(I) N/A 7.02 Construction Phase
(a) Owner shall compensate Construction Manager for Construction Phase services
as per 7.01.
(b) The Owner has afforded the Project Manager with unrestricted access to the
existing improvements and conditions on the site and has given the Project
Manager the opportunity to thoroughly investigate the existing conditions, which
the Project Manager represents it has done. The results of Project Manager's
investigation have been taken into account in establishing the Guaranteed
Maximum Price of the work. Project Manager shall not be entitled to a claim for
an adjustment in time or price under Owner's Standard Uniform General and
Supplementary Conditions for conditions which Project Manager discovered or
ought to have discovered in Project Manager's investigation. Before proceeding
with the work, the Project Manager shall review the Drawings and Specifications
and notify the Design Consultant and Owner of any errors, omissions or
discrepancies in the drawings and specifications it discovers with respect to
the existing conditions. The Project Manager shall not proceed with the work if
any defect, defined as any error, omission, conflict, inconsistency or lack of
clarity, is known or should be known by Project Manager to exist in the drawings
or specifications or other Contract Documents. If Project Manager proceeds to
perform the work then Project Manager shall be responsible for all foreseeable
resulting cost, including the cost of redoing or remedying the work and time
delays resulting there from unless and to the extent such costs result from
concealed conditions. Upon discovering a defect in the drawings or
specifications, the Project Manager shall immediately submit a written request
for an explanation or decision to the Design Consultant and the Owner.
(c) N/A
(d) N/A
(e) In full consideration of Project Manager's services during the Construction
Phase of this Agreement, Owner shall pay Project Manager a Construction Phase
Fee as per the Guaranteed Maximum Price indicated on Exhibit B attached hereto.
(f) If the Guaranteed Maximum Price increases by more than three percent from
the amount originally set forth in Exhibit B hereto, then Project Manager shall
be entitled to an equitable increase in in the Project Manager's Construction
Phase Fee.
(g) References to adjustments in "cost" or "costs" refer to Costs of the Work as
defined herein below, and references to Project Manager's "overhead" and
"profit" refer to Project Manager's Construction Phase Fee.
(h) The Project Manager's Fee shall cover the Project Manager's profit, general
overhead and the following costs and expenses: All expenses in connection with
maintaining and operating Project Manager's main office and any branch or field
offices, including (except as otherwise provided hereinafter);
(1) Salaries of Project Manager's officers, project managers, estimators and
schedulers.
(2) Salaries of persons employed in the main or branch offices of the Project
Manager whose time is devoted to the general conduct of the Project Manager's
business, such as office managers, stenographers, plan clerks, file clerks, and
draftsmen.
(3) Overhead or general expenses of any kind except those specifically included
herein.
(4) Services and expenses of the estimating personnel, accounting, budget
control, audit and management information systems (other than pre-construction
services) relating to accounting in Project Manager's office and even if at the
site, except as specifically identified herein.
(5) Interest on the Project Manager's capital or on money borrowed by the
Project Manager, including the capital employed by the Project Manager in the
performance of the work. (6) Amounts required to be paid by Project Manager for
Federal and/or State income and franchise taxes. (7) Legal, accounting, or other
similar professional services provided by or to Project Manager, in regard to
disputes, arbitrations, litigations or other such proceedings with
Subcontractors, with municipal authorities, with the Owner, the Design
Consultants or any other person or entity relating to the Project or otherwise.
(i) blank
7.03 Owner shall have the right to withhold from payments due Project Manager
such sums as are necessary to protect Owner against any loss or damage which may
result from negligence by Project Manager or failure of Project Manager to
perform Project Manager's obligations under this Agreement.
7 .04 The final request for payment shall not be made until Project Manager
delivers to Owner a complete release of all liens arising out of this Agreement
and an affidavit that so far as Project Manager has knowledge or information,
the release includes and covers all materials and services over which Project
Manager has control for which a lien could be filed, but Project Manager may, if
any agent or consultant refuses to furnish a release in full, furnish a bond
satisfactory to Owner to indemnify Owner against any lien. If any lien remains
unsatisfied after all payments are made, Project Manager shall refund to Owner
all monies. Owner may be compelled to pay in discharging such lien, including
all costs and reasonable attorneys' fees, and Owner shall have all remedies at
law and in equity.
7.05 blank
7.06 Any provision hereof to the contrary not withstanding, Owner shall not be
obligated to make any payment (whether a progress payment or final payment) to
Project Manager hereunder if any one or more of the following conditions
precedent exist;
(a) Project Manager is in breach or default under this Agreement;
(b) Any part of such payment is attributable to services which are not performed
in accordance with this Agreement; provided, however, such payment shall be made
as to the part thereof attributable to services which were performed in
accordance with this Agreement;
(c) Project Manager has failed to make payments promptly to consultants or other
third parties used in connection with the services for which Owner has made
payment to Project Manager; or
(d) If Owner, in its good faith judgment, determines that the portion of the
compensation then remaining unpaid will not be sufficient to complete the
services in accordance with this Agreement, no additional payments will be due
Project Manager hereunder unless and until Project Manager, at Project Manager's
sole cost, performs a sufficient portion of the remaining services so that such
portion of the compensation then remaining unpaid is determined by Owner to be
sufficient to so complete the then remaining services.
(e) Nothing contained herein shall require the Owner to pay the Project Manager
an aggregate amount exceeding the Guaranteed Maximum Price or to make payment if
in the Owner's belief the cost to complete the Work would exceed the Guaranteed
Maximum Price less previous payments to Project Manager.
7.07 No partial payment made hereunder shall be, or shall be construed to be,
final acceptance or approval of that part of the services to which such partial
payment relates, or a release of Project Manager of any of Project Manager's
obligations hereunder or liabilities with respect to such services.
7.08 blank
7.09 Owner shall have the right to
verify and audit the details set forth in Project Manager's ▇▇▇▇▇▇▇▇,
certificates, accountings, cost data, and statements, either before or after
payment therefore, by
(1) inspecting the books and records of Project Manager during normal business
hours;
(2) examining any reports with respect to this Project;
(3) interviewing Project Manager's business employees;
(4) visiting the Project site; and
(5) other reasonable action.
7.10 The acceptance by Project
Manager or Project Manager's successors of final payment under this Agreement
shall constitute a full and complete release of Owner from any and all claims,
demands, and causes of action whatsoever which Project Manager or Project
Manager's successors have or may have against Owner under the provisions of this
Agreement except those previously made in writing and identified by Project
Manager as unsettled at the time of the final request for payment.
ARTICLE VIII COST OF THE WORK
8.01 The term cost of the work means costs which the Project Manager must
necessarily incur to properly perform the work in strict compliance with the
Contract Documents. Cost of the work includes only the items set forth in this
Article VIII
(a) Labor and Administrative:
(1) Reasonable and customary wages paid to construction workers directly
employed by Project Manager who perform the construction of the work.
(2) Reasonable and customary wages or salaries of Project Manager's supervisory
and administrative personnel who are identified on Exhibit A but only when
stationed full-time at the site with the Owner's prior consent,
(3) Costs paid or incurred by Project Manager for labor costs arising out of
taxes, insurance, and benefits which an (i) required by law, (ii) required by
collective bargaining agreements, (iii), or otherwise customary, so long as such
costs are based on wages and salaries which are properly included in the Cost of
the Work as defined herein.
(4) Reasonable and customary travel expenses of Project Manager's personnel
incurred directly and solely in support of the Project and approved in advance
in writing by Owner.
(5) Costs of long-distance telephone calls, telegrams, postage, package delivery
and courier service, telephone service, and reasonable and customary ▇▇▇▇▇ cash
expenses of Project Manager's jobsite office, incurred directly and solely in
support of the Work, and all incurred at the site.
(b) Materials, Equipment, Tools, Rentals:
(1) Costs of materials and equipment to be incorporated (or incorporated) into
the work, including transportation charges, and a reasonable and customary
allowance for waste and spoilage. Owner shall be entitled to take possession of
excess materials not incorporated into the work, or at Owner's option. Project
Manager shall sell such materials and deduct the gross proceeds from the cost of
the work. Payment for stored materials is subject to Owner's Standard Uniform
General and Supplementary General Conditions.
(2) Costs of materials, supplies, temporary facilities, equipment, and hand
tools except for those customarily owned by construction workers, all provided
at the site by Project Manager, if such items are fully consumed in the
construction of the work, and Owner approves such purchase in advance in
writing. Cost for used items shall be based on fair market value and may include
costs of transportation, installation, minor maintenance costs, and removal. If
the item is not fully consumed, then the cost shall be based on cost of the item
minus its fair market salvage value.
(3) Rental charges for temporary facilities, equipment, and hand tools except
for those customarily owned by construction workers, all provided at the site by
Project Manager, and may include transportation, installation, and minor
maintenance costs, and removal, all so long as Owner has approved such items and
the rental rates in advance in writing. If tools, machinery or construction
equipment are rented from the Project Manager, the amount of such rental, the
rate of such rentals, including the freight and delivery cost thereon and all
operating expenses except labor, shall be determined by application of
"Contractor's Equipment Cost Guide," latest edition published by the AGC,
approved by the Owner before commitments are made and shall in no event be
higher than the prevailing competitive rates paid in the locality for similar
equipment. In no event shall the aggregate rental cost to Owner exceed the
purchase price and maintenance cost of the item. In the event equipment can be
purchased for an amount comparable to the aggregate rental cost of said
equipment, Project Manager shall purchase such equipment and turn it over to
Owner upon final completion of the work, or at Owner's option, credit to the
Owner with the amount of the fair market resale value. (4) Site debris removal
and disposal costs in accordance with all applicable laws and regulations. (c)
Subcontracts: Payments made to Subcontractors by Project Manager for the
construction of the work in accordance with the Contract Documents and the
requirements of the subcontracts with such Subcontractors.
(d) Other costs:
Governmental sales and use taxes directly attributable to the work. Permit and
inspection fees, except that as a state agency Premiums for insurance and bonds
to the extent directly attributable to this Contract.
Testing fees pursuant to the terms and conditions of Owner's Standard Uniform
General and Supplementary Conditions. Intellectual property royalties and
licenses for items specifically required by the Contract Documents which are or
will be incorporated into the work.
Forfeited deposits, but only if such deposit has been forfeited in the absence
of any fault or negligence of Project Manager. Other costs approved in advance
in writing by Owner at Owner's sole option and discretion.
8.0.2
Costs Not Included in the Cost of the Work
The following shall not be included in the cost of work to be paid by Owner:
(a) Costs including, but not limited to, the failure to perform of any
Subcontractor or the bankruptcy or insolvency of any Subcontractor.
(b) Legal and administrative costs to review and negotiate these Contract
Documents.
(c) Travel and subsistence expense of Project Manager, its officers or employees
incurred while traveling between the Project and Project Manager's principal or
branch offices, and travel in the metropolitan area of the Project.
(d) Fines, penalties, sanctions or impositions assessed or imposed by any
governmental body, instrumentality or tribunal arising from the fault of Project
Manager.
(e) Costs incurred by Project Manager resulting from the failure of Project
Manager or its Subcontractors to coordinate their work with that of Owner and
its contractors, if any, after agreeing to the schedules therefore, or failure
of Project Manager to comply with directives of Owner not in conflict with said
schedules.
(f) Costs resulting from the failure of Project Manager or any Subcontractor to
procure and maintain insurance as and to the extent required by the Contract
Documents.
(g) Any and all personnel costs, including, without limitation, wages, salaries,
and benefits, except for personnel based at the site office and only as
specifically provided herein. (h) Any and all overhead expense or office expense
at any location, except site office expense to the extent specifically included
herein.
(i) Costs related to Project Manager's indemnification obligations pursuant to
Article X hereof.
(j) The cost of capital, including, without limitation, interest on capital,
regardless of whether it is related to the Project.
(k) Any cost arising out of the fault or negligence of Project Manager, its
Subcontractors, or any person or entity for whom they may be liable, including,
without limitation, costs related to defective, rejected, or nonconforming work,
materials or equipment, and damage to persons or property.
(I) liquidated or actual damages imposed by Owner for failure of Project Manager
to complete the work within the contract time.
(m) Any and all costs not specifically authorized herein, including, without
limitation, any cost which would cause the Guaranteed Maximum Price to be
exceeded,
(n) Builders Risk Insurance policy
ARTICLE IX OWNER'S RESPONSIBILITIES
9.01 The Owner shall be fully acquainted with the Project and shall facilitate
and coordinate the Owner's Project issues with the Project Manager, upon
request, the Owner will furnish in writing the authorization of each
representative of the Owner to represent it in connection with the Project.
9.02 The Owner shall cooperate in providing information to the other members of
the Project Team regarding its requirements for the Project.
9.03 Owner shall furnish for the site of the Project any necessary surveys
describing the physical characteristics, soil reports and subsurface
investigations, known legal limitations, utility locations, and the legal
description; to the extent such items may be required by agreements between
Owner and Design Consultant or other consultants. Owner shall inform all special
consultants retained by the Owner that they shall coordinate their services
through the Project Manager. Owner shall provide special testing and inspection
services to the extent required by Florida Education Code section 51.782, as
amended.
9.04 If the Owner has actual knowledge of any fault or detect in the Project or
non-conformance with the Drawings and Project Manual, Owner shall give prompt
written notice thereof to the Project Manager.
ARTICLE X INDEMNITY
10.01 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PROJECT MANAGER AND
ITS AGENTS, PARTNERS, EMPLOYEES, AND CONSULTANTS (COLLECTIVELY "INDEMNITORS")
SHALL AND DO AGREE TO INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY OWNER,
AND HOLD HARMLESS THE OWNER ITS AFFILIATED ENTERPRISES, REPRESENTATIVES OF THE
OWNER, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, REGENTS, PARTNERS, EMPLOYEES
AND AGENTS (COLLECTIVELY "INDEMNTTEES") FROM AND AGAINST ALL CLAIMS, DAMAGES,
LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES, INCLUDING
ATTORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTION (COLLECTIVELY "LIABILITIES")
OF ANY PERSON OR ENTITY WHOMSOEVER ARISING OUT OF, CAUSED BY, OR RESULTING FROM
THE PERFORMANCE OF THE SERVICES OR ANY PART THEREOF WHICH ARE INDEMNITEE, SO
LONG AS IT IS NOT CAUSED BY THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNITEE, IN THE EVENT MORE SUCH INDEMNITORS SHALL BE JOINTLY AND SEVERALLY
RESPONSIBLE TO THE INDEMNITEES FOR INDEMNIFICATION AND THE ULTIMATE
RESPONSIBILITY AMONG SUCH INDEMNITORS FOR THE LOSS AND EXPENSE OF ANY SUCH
INDEMNIFICATION SHALL BE SETTLED BY SEPARATE PROCEEDINGS AND WITHOUT JEOPARDY TO
ANY INDEMNITEE. THE PROVISIONS OF THIS ARTICLE SHALL NOT BE CONSTRUED TO
ELIMINATE OR REDUCE ANY OTHER INDEMNIFICATION OR RIGHT WHICH OWNER OR ANY OF THE
INDEMNITIES HAS BY LAW.
10.02 PROJECT MANAGER SHALL PROTECT AND INDEMNIFY THE OWNER FROM AND AGAINST ALL
CLAIMS, DAMAGES, JUDGMENTS AND LOSS ARISING FROM INFRINGEMENT OR ALLEGED
INFRINGEMENT OF ANY UNITED STATES PATENT, OR COPYRIGHT, ARISING BY OR OUT OF ANY
OF THE WORK PERFORMED HEREUNDER OR THE USE BY PROJECT MANAGER, OR BY OWNER AT
THE DIRECTION OF PROJECT MANAGER, OF ANY ARTICLE OR MATERIAL, PROVIDED THAT UPON
BECOMING AWARE OF A SUIT OR THREAT OF SUIT FOR PATENT OR COPYRIGHT INFRINGEMENT.
OWNER SHALL PROMPTLY NOTIFY PROJECT MANAGER AND PROJECT MANAGER SHALL BE GIVEN
FULL OPPORTUNITY TO NEGOTIATE A SETTLEMENT. PROJECT MANAGER DOES NOT WARRANT
AGAINST INFRINGEMENT BY THE OPERATION OF ANY PROCESS IN THE EVENT OF LITIGATION,
OWNER AGREES TO COOPERATE REASONABLY WITH PROJECT MANAGER AND PARTIES SHALL BE
ENTITLED, IN CONNECTION WITH ANY SUCH LITIGATION, TO BE REPRESENTED BY COUNSEL
AT THEIR OWN EXPENSE.
10.03 OWNER SHALL INDEMNIFY AND HOLD HARMLESS THE CONSTRUCTION MANAGER FROM ANY
AND ALL WORK PERFORMED ON THE PROJECT PRIOR TO THE DATE OF THIS CONTRACT.
10.04 OWNER SHALL INDEMNIFY AND HOLD HARMLESS THE CONSTRUCTION MANAGER FROM ANY
AND ALL CLAIMS, DAMAGE OR LOSSES OF ANY KIND FOR MOLD CAUSED PRIOR TO THIS
CONTRACT. OWNER WILL BE RESPONSIBLE FOR ANY AND ALL COSTS FOR MOLD INSPECTIONS
AND NECESSARY REMEDIATION.
10.05 THE INDEMNITIES CONTAINED HEREIN SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT FOR ANY REASON WHATSOEVER.
Exhibit A
Position Project Responsibility Name
Project Manager: Overall Project responsibility ▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇
Superintendent On site personnel management ▇▇▇ ▇▇▇▇▇▇▇
Skilled Workers Installation of the work
EXHIBIT B
GUARANTEED MAXIMUM PRICE PROPOSAL
We hereby submit to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(OWNER), pursuant to the provisions of Article V of the CONSTRUCTION MANAGEMENT
AGREEMENT, a Guaranteed Maximum Price for Project Management (as defined in the
Agreement) based on the Contract Documents (as defined by the Agreement)
developed for the Project. Job completion and performance based on existing
subcontracts and contract prices not to exceed $92,738.69 as per attached
budget.
Maximum Price for Project Management is as follows:
Twenty five thousand dollars and 00/100 ($25,000.00)
SiteWorks Building & Development Co., Inc.
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SS ▇▇▇▇ ▇. Nurse, CEO
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Dated
Accepted and Agreed:
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SS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Owner
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Date Accepted and Agreed