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HomeMy WebLinkAboutMeyer Najem Construction, LLC - 2009 (2) ■ CONSTRUCTION MANAGEMENT AGREEMENT This Construction Management Agreement(the"Agreement")is executed this 20th day of August, 2009, by and between The City of Carmel Redevelopment Commission ("CRC")and Meyer Najem Construction, LLC (the "CM"). ARTICLE I --RESPONSIBILITIES CM's services shall: (a) consist of the Basic Services (as defined in Section 2.1) and the Additional Services (as defined in Article 3); and (b) be provided in conjunction with the services of the Architect/Engineer of Record ("NE"). CM shall provide sufficient organization, personnel, and management to perform the Basic Services and the Additional Services and otherwise carry out its obligations under this Agreement in an expeditious and economical manner consistent with the interests of CRC. ARTICLE 2 --SCOPE OF SERVICES 2.1 Basic Services.The"Basic Services"shall consist of the services set forth in Sections 2.2 and 2.3, together with any other services identified as being a part of the Basic Services on Exhibit A. 2.2 Pre-Construction Phase. CM shall provide the following services in the pre-construction phase: (a) Review the program, schedule, and construction budget requirements (the "Project Requirements")furnished by NE or CRC to ascertain the requirements of the Project (as defined and described in Exhibit B) and demonstrate to A/E an understanding of the foregoing. (b) Provide to CRC and NE a preliminary evaluation of the Project Requirements. (c) Based on early schematic designs and other design criteria prepared by A/E: (i) prepare preliminary estimates of the Construction Cost (as defined in Section 5.1) using area, volume, or similar conceptual estimating techniques; and (ii) provide to NE cost evaluations of alternative materials and systems. (d) Expeditiously: (i) review schematic, design development, and construction documents(the"Construction Documents")during the development thereof; and(ii)advise NE on proposed site use and improvements, selection of materials, building systems and equipment, and methods of Project delivery. (e) Provide recommendations to NE on: (i) relative feasibility of construction methods; (ii) availability of materials and labor; (iii) time requirements for procurement, installation and construction; and (iv) factors related to the Construction Cost, including costs of alternative designs or materials, preliminary budgets, and possible economies. (f) Prepare and monthly update a schedule for completion of the Project (the "Project Schedule") for review by NE and approval by CRC. The Project Schedule shall coordinate and integrate the services of CM and NE, and the responsibilities of CRC, with anticipated construction schedules, including schedules for performance of work by or for the City of Carmel, Indiana (the "City"), highlighting on the updated schedules critical and long lead time items. (g) As NE progresses with the preparation of the Construction Documents, CM shall prepare, at intervals established by CM and A/E, estimates of the Construction Cost in increasing detail and refinement, using supporting detail where applicable. Such estimates shall be provided for review by NE and approval by CRC.CM shall advise CRC and NE if, at any time, it appears that the Construction Cost may exceed the latest Construction Cost estimate. Following completion of the Construction Documents, CM shall update and submit the latest Construction Cost estimate and the Project Schedule for A/E's review and CRC's approval. (h) Consult with NE regarding the Construction Documents and make recommendations whenever design details adversely affect: (i) ability to construct; (ii) cost; or (iii) the Project Schedule. (i) Provide recommendations and information to A/E regarding the assignment of responsibilities for temporary Project facilities, equipment, materials, and services for common use of the contractors. CM shall verify that such requirements and assignment of responsibilities are included in the proposed documents to be executed with the contractors(the "Contract Documents"). Q) Provide recommendations and information to NE regarding the allocation of responsibilities for safety programs among the contractors. (k) Advise A/E on the division of the Project into separate contracts for various categories of work, including: (i) providing an analysis of the types and quantities of labor required for the Project; (ii) reviewing the availability of appropriate categories of labor required for critical phases; and (iii) making recommendations for actions designed to minimize adverse effects of labor shortages. (I) Prepare a construction schedule for each component of the work (the "Component Schedule"), including: (i)phasing of construction; (ii)times of commencement and completion for each contractor; (iii) ordering and delivery of products; and (iv) the completion requirements of CRC. A current Component Schedule shall be provided to NE for each set of bidding documents. CM shall expedite and coordinate the ordering and delivery of materials requiring long lead time. (m) If multiple contractors are to be awarded contracts, review the Construction Documents and make recommendations to NE as required to provide that: (i)the work of the contractors will be coordinated; (ii)all requirements for the Project will be assigned to the appropriate contractor pursuant to the appropriate contract; (iii)the likelihood of jurisdictional disputes has been minimized; and (iv) proper coordination has been provided for phased construction. (n) Prepare bid packages to be: (i) approved by A/E; (ii) used by CRC in the public bidding process; and (iii)advertised in the public print media, in accordance with IC § 36-112, et seq., and the Internet. (o) Submit to NE a list of prospective bidders,develop bidders'interest in the Project,and assist CRC and NE with respect to questions from bidders. (p) Prepare bid analyses and make recommendations to A/E for CRC's award of contracts or rejection of bids; provided that all contractors and other professionals whose services are required shall be selected in accordance with the public bidding process and procedures required by Indiana law. (q) Prepare Contract Documents on forms provided by CRC for review by ME and approval by CRC, and advise NE on the acceptability of subcontractors and material suppliers proposed by contractors. (r) Assist in obtaining permits, except for permits required to be obtained directly by the various contractors. (s) Verify that applicable fees and assessments have been paid by CRC, and assist in filing documents required for the approvals of governmental authorities having jurisdiction over the Project. 2.3 Construction Phase. The "Construction Phase" shall commence with the award of the initial construction contract or purchase order and, together with CM's obligation to provide the Basic Services, shall end 30 days after final payment to all contractors is due. CM shall provide the following services during the Construction Phase: (a) Administer the Contract Documents in cooperation with NE. (b) Provide administrative, management, and related services to coordinate scheduled activities and responsibilities of the contractors with each other and with those of CM, CRC, the City, and A/E for the purpose of managing the Project in accordance with the latest approved Construction Cost estimate, the Project Schedule, and the Contract Documents. (c) Schedule and conduct meetings to discuss such matters as procedures, progress, and scheduling. CM shall prepare and distribute minutes of the foregoing to A/E and the contractors in a prompt and timely manner. (d) Utilizing the construction schedules provided by the contractors, update the Project Schedule incorporating the activities of the contractors on the Project, including: (i)activity sequences and durations; (ii) allocation of labor and materials; (iii) processing of shop drawings, produce data, and samples; (iv)delivery of products requiring long lead time and procurement; and (v) CRC's completion requirements, showing portions of the Project having completion priority. CM shall update and reissue the Project Schedule to CRC and NE as required to show current conditions. If an update indicates that the previously approved Project Schedule may not be met, then CM shall recommend corrective action to NE. (e) Consistent with the various bidding documents, and utilizing information from the contractors, CM shall coordinate the sequence of construction and assignment of space in areas where the contractors are performing work. (f) Endeavor to obtain satisfactory performance from each of the contractors, and recommend courses of action to NE when requirements of any of the Contract Documents are not being fulfilled. (g) In collaboration with NE, establish and implement procedures for requiring contractors to perform and complete work as required for the approval of governmental authorities having jurisdiction over the Project and otherwise as required by applicable law. (h) In collaboration with NE, coordinate the performance of tests and inspections required by the Contract Documents or by law. (I) In collaboration with A/E, establish and implement procedures for addressing observed deficiencies. (j) Monitor the approved Construction Cost estimate showing actual costs for activities in progress and estimates for uncompleted tasks in comparison with such approved estimate. -3- (k) Develop cash flow reports and forecasts for the Project, and advise A/E as to variances between actual and budgeted or estimated costs. (I) Maintain accounting records on authorized work performed under unit costs, additional work performed on the basis of actual costs of labor and materials, and other work requiring accounting records. (m) In collaboration with NE, develop a list of the items required for submission with applications by contractors for progress and final payments. (n) Develop and implement procedures for the review and processing of applications by contractors for progress and final payments, including confirmation that the required items have been submitted and review and processing of those items. (o) Review and certify the amounts due the respective contractors, based on observations and evaluations of each contractor's application and submissions for payment, and prepare applications for payment based on the foregoing certifications. (i) The foregoing certifications for payment shall constitute representations to CRC and A/E that, to the best of CM's knowledge, information, and belief based on adequate on-site inspections to check the quality or quantity of the work, the work has progressed to the point indicated and the quality of the work is in accordance with the Contract Documents, subject to: (A) results of subsequent tests and inspections; (B) minor deviations from the Contract Documents correctable prior to completion; and (C) specific reasonable qualifications set forth in the certification. The issuance of an application for payment also shall constitute a representation that the contractor is entitled to payment in the amount certified. (ii) The issuance of an application for payment shall not be a representation that CM has: (A) made exhaustive or continuous on-site inspections to check the quality or quantity of the work; (B) examined construction means, methods, techniques, sequences for the contractor's work, or procedures; or (C) ascertained how, or for what purpose, the contractor has used money previously paid to such contractor. (p) Coordinate communications among contractors regarding job site safety, endeavor to obtain compliance with contractors' contractual obligations regarding safety, and recommend to CRC a course of action when such contractual obligations are not being fulfilled; provided that CM's responsibilities shall not extend to direct control over, or charge of, the acts or omissions of the contractors or subcontractors, the agents or employees of the contractors or subcontractors, or any other persons performing portions of the work and not directly employed by CM. (q) Determine, based on adequate on-site inspections to check the quality or quantity of the work, that the work of each contractor is being performed in accordance with the requirements of the Contract Documents, endeavoring to guard CRC against defects and deficiencies in the work, and, when observed by CM, inform CRC of: (i) lack of coordination among contractors; and/or (ii) safety violations. As appropriate, CM shall have authority, upon written authorization from NE,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. CM, in consultation with NE, may reject work that does not conform to the requirements of the Contract Documents. (r) Schedule and coordinate the sequence of construction in accordance with the Contract Documents and the latest approved Project Schedule. (s) Transmit to A/E requests for interpretations of the meaning and intent of the Construction Documents, and assist in the resolution of questions that may arise. (t) Review requests for changes, assist in negotiating contractors' proposals, submit recommendations to NE, and, if they are accepted, prepare change orders and construction change directives that incorporate NE's modifications to the Construction Documents. (u) Assist NE in the review,evaluation,and documentation of claims. (v) Secure certificates of insurance from the contractors,and forward such certificates to NE. (w) In collaboration with A/E, establish and implement procedures for expediting the processing and approval of shop drawings,product data,samples,and other submittals. (x) Review all shop drawings, product data, samples, and other submittals from the contractors. (y) Coordinate submittals with information contained in related documents, and transmit to A/E those that have been approved by CM, all of which shall be performed with such reasonable promptness as to cause no delay in the work or in the activities of CRC,NE,or the contractors. (z) Record the progress of the Project, including: (i) submitting to CRC and NE written progress reports that include information on each contractor and its work, the progress of the entire Project, and percentages of completion; and (ii) keeping a daily log containing a record of weather, each contractor's work on the site, number of workers, identification of equipment, work accomplished, problems encountered, and other similar relevant data as NE may require. (aa) Maintain at the Project site: (i) one record copy of all contracts, drawings, specifications, addenda, change orders and other modifications, approved shop drawings, Project data, samples, and similar required submittals; and (ii) duplicate copies of principal building layout lines, elevations of the bottom of footings, floor levels, and key site elevations certified by a qualified surveyor or professional engineer; making all of the foregoing available to NE. All of the foregoing shall be delivered to CRC upon completion of the Project. (bb) Coordinate among contractors: (i) the delivery to the Project Site; and (ii) the storage, protection, and security on the Project Site; of materials, systems, and equipment to be incorporated into the Project. (cc) Review: (i) the delivery to the Project Site; and (ii) the storage, protection, and security on the Project Site; of CRC-purchased materials, systems, and equipment to be incorporated into the Project, and notify CRC if any of the foregoing is being handled improperly. (dd) With NE and representatives of CRC and the City, observe the contractors'final testing and start-up of utilities, operational systems, and equipment. (ee) At such time as a contractor's work, or a designated portion thereof, is substantially complete: (i) prepare for NE a list of incomplete or unsatisfactory items and a schedule for their completion; and (ii)assist NE in conducting inspections to determine whether the work, or a designated portion thereof, is substantially complete. (ff) Coordinate the correction and completion of the work. (gg) Following issuance of a certificate of substantial completion of the work, or a designated portion thereof: (i) evaluate the completion of the work and make recommendations to NE when work is ready for final inspection; and (ii)assist NE in conducting final inspections. (hh) Secure and transmit to A/E warranties and similar submittals required by the Contract Documents, all keys, manuals, record drawings and maintenance stocks, and a final project application for payment upon compliance with the requirements of the Contract Documents. 2.4 Limitations.The following limitations shall apply: (a) With respect to each contractor's work, CM shall not: (i) have control over, charge of, or be responsible for, construction means, methods, techniques, sequences procedures, or safety precautions and programs; as the foregoing are the sole responsibility of each such contractor under the Contract Documents; (ii) be responsible for a contractor's failure to carry out the work in accordance with the applicable Contract Documents; or(iii) have control over, or charge of, acts or omissions of the contractors or subcontractors, the agents or employees of the contractors or subcontractors, or any other persons performing portions of the work and not directly employed by CM. (b) Duties, responsibilities, and limitations of authority of CM as set forth in the Contract Documents shall not be restricted, modified, or extended without the written consent of CRC, CM, and NE, which consent shall not be withheld unreasonably. ARTICLE 3 --ADDITIONAL SERVICES The"Additional Services"shall consist of the following services: as well as other services that may be agreed to by both parties: (a) Providing services required because of significant changes in the Project, including changes in size, quality, complexity,or the Project Schedule. (b) Providing consultation concerning replacement of work damaged by fire or otherwise during construction,and furnishing services required in connection with the replacement of such work. (c) Providing services made necessary by: (i)the termination of, or default by, NE or a contractor; (ii) major defects or deficiencies in the work of a contractor; or (iii) failure of performance of either CRC,NE, or a contractor under a construction contract. (d) Providing services in evaluating an extensive number of claims submitted by a contractor or others in connection with the work. (e) Providing services in connection with a public hearing,arbitration proceeding,or legal proceeding, except where CM is party thereto. (f) Providing services relative to future facilities, systems, and equipment. (g) Providing services to investigate existing conditions or facilities, or to provide measured drawings thereof. (h) Providing services to verify the accuracy of drawings or other information furnished by CRC or NE. (i) Providing services required for or in connection with CRC's selection, procurement,or installation of furniture,furnishings,and related equipment. (i) Providing any other services not otherwise included in this Agreement. (k) Providing services for tenant improvements. The Additional Services: (a) shall not be included in the Basic Services, except to the extent specified on Exhibit A as being a part thereof; and(b)except to the extent specified on Exhibit A as being part of the Basic Services, shall be provided only upon receipt by CM of notice of authorization from CRC. ARTICLE 4 --CRC RIGHTS AND RESPONSIBILITIES 4.1 Responsibilities. CRC shall have the following responsibilities: (a) Provide through NE full information regarding requirements for the Project, including a program setting forth CRC's objectives, schedule, constraints, and criteria, including special equipment, systems, and site requirements. (b) Establish and update through A/E an overall budget for the Project based on consultation by NE with CM,which shall include the Construction Cost, CRC's other costs, and reasonable contingencies related to all of these costs. (c) If requested by CM,furnish through NE evidence that financial arrangements have been made to fulfill CRC's obligations under this Agreement. (d) Cause NE, as the designated agent of CRC, to render decisions in a timely manner pertaining to documents submitted by CM in order to avoid unreasonable delay in the orderly and sequential progress of CM's services. CM shall not be responsible for actions taken by NE. (e) Furnish through NE structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections, and reports required by law or the Contract Documents. (f) Furnish all legal, accounting, and insurance counseling services as may be necessary, including auditing services CRC may require to verify the contractors' applications for payment or to ascertain how or for what purposes the contractors have used the money paid by or on behalf of CRC. (g) Furnish through NE a sufficient quantity of Construction Documents. (h) Require NE to deliver prompt written notice to CRC and CM if NE becomes aware of any: (i) fault or defect in the Project;or(ii)nonconformance with the Contract Documents. (j) Deliver prompt written notice to CM if CRC becomes aware of any: (i)fault or defect in the Project; or(ii) nonconformance with the Contract Documents. (k) Furnish through NE information or services under CRC's control with reasonable promptness to avoid delay in the orderly progress of GM's services and the progress of the work. The services, information, and reports required by Subsections 4.1(d)-(g)shall be furnished at CRC's expense, and CM shall be entitled to rely upon the accuracy and completeness thereof. 4.2 Rights. In addition to rights of CRC set forth elsewhere in this Agreement, CRC reserves the right to: (a) perform construction and operations related to the Project with CRC's own forces or the forces of the City; and (b) award contracts in connection with the Project that are not part of CM's responsibilities under this Agreement; provided that CM shall notify CRC if any such independent action will interfere with CM's ability to perform CM's responsibilities under this Agreement. 4.3 Architect as Agent. CRC has designated NE as its agent for the purpose of day to day contact with CM. CRC has authorized NE to make all decisions with respect to the Project as set forth herein; provided that NE is not authorized to make any decisions that would: (a) require any part of the work for the Project to be re-bid; (b) result in a scope change; (c) increase CRC's costs; or (d) delay completion; in any of the foregoing cases without the prior written consent of CRC, and CM shall not take any actions with respect to such decisions until it has received the required consent. ARTICLE 5--CONSTRUCTION COST 5.1 Definition. (a) The "Construction Cost" shall: (i) be the total cost or estimated cost to CRC of all elements of the Project designed or specified by NE;and(ii)include: (A)the cost,at current market rates,of: (1) labor and materials required to complete the Project; and (2) equipment designed, specified, or selected for the Project; (B) a reasonable allowance for the contractors' overhead and profit; and (C) a reasonable allowance for: (1) contingencies for market conditions at the time of bidding; and (2) changes in the work during construction. Except as provided in Subsection 5.1(b), the Construction Cost shall include the compensation of CM and its consultants. (b) The Construction Cost shall not include: (i) the compensation of NE and its consultants; (ii) costs of the land or rights-of-way; (iii) costs of financing; or (iv) other costs that are the responsibility of CRC pursuant to Section 4.1. If any portion of CM's compensation is based upon a percentage of the Construction Cost, then, for purposes of determining such portion, the Construction Cost shall not include the compensation of CM or its consultants, agents, or employees. 5.2 Responsibility. (a) Evaluations of CRC's Project budget, preliminary Construction Cost estimates, and detailed Construction Cost estimates prepared by CM represent CM's best judgment as an entity familiar with the construction industry. It is recognized that neither CM nor CRC has control over: (i) the cost of labor, materials, or equipment; (ii) contractors' methods of determining bid prices; or (iii) bidding, market, or negotiating conditions. Accordingly, CM cannot and does not warrant or represent that bids or negotiated prices will not vary from the Project budget proposed, established, or approved by CRC, or from any cost estimate or evaluation prepared by CM. (b) No fixed limit of Construction Cost shall be established as a condition of this Agreement by the furnishing, proposal, or establishment of a Project budget, unless such fixed limit has been agreed in writing and signed by CM and CRC. If such a fixed limit has been established, then CM shall: (i)be permitted to include reasonable contingencies for design, bidding, and price escalation; and (ii)consult with NE to: (A)determine what materials, equipment, component systems, and types of construction are to be included in the Contract Documents; (B)suggest reasonable adjustments in the scope of the Project; and (C)suggest inclusion of alternate bids in the Construction Documents to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of any increase in the contract sums occurring after execution of the construction contracts. (c) If the bidding or negotiation phase has not commenced within 90 days after submittal of the Construction Documents to CRC, then 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 CRC and the date on which proposals are sought. (d) If a fixed limit of Construction Cost (adjusted as provided in Subsection 5.2(c)) is exceeded by the sum of the lowest bona fide bids or negotiated proposals plus CM's estimate of other elements of Construction Cost for the Project, then CRC shall: (i) give written approval of an increase in such fixed limit; (ii) authorize rebidding or renegotiating of the Project within a reasonable time; (iii) if the Project is abandoned, terminate in accordance with Section 8.3; or (iv) cooperate in revising the Project scope and quality as required to reduce the Construction Cost; provided that, if CRC elects this option, then CM, without additional charge, shall cooperate with CRC and A/E as necessary to bring the Construction Cost within the fixed limit, if established as a condition of this Agreement. ARTICLE 6 --CONSTRUCTION SUPPORT ACTIVITIES Construction support activities, if provided by CM, shall be governed by separate agreements, except to the extent provided on Exhibit A. Reimbursable expenses listed in Section 10.2 for construction support activities may be subject to trade discounts, rebates, refunds, and amounts received from sales of surplus materials and equipment that shall accrue to CRC, and CM shall make provisions so that they can be secured. ARTICLE 7 --A/E DOCUMENTS The Construction Documents and other documents prepared by A/E(the"NE Documents")are instruments of A/E's service through which the work to be executed by the contractors is described. CM: (a)may retain one record set of the NE Documents; but(b)shall not own or claim a copyright in the NE Documents.All copies of the NE Documents,except CM's record set,shall be returned to NE upon completion of the Project.The NE Documents, and copies thereof furnished to CM, are: (a)for use solely with respect to the Project; and(b)not to be used by CM on other projects,or for additions to this Project outside the scope of the work,without the specific written consent of CRC and NE. CM is granted a limited license to use and reproduce portions of the NE Documents appropriate to, and for use in, the performance of CM's services under this Agreement; provided that all copies made under this license shall bear the statutory copyright notice, if any, shown on the NE Documents. Submittal or distribution to me t o icial regulatory requirements or for other purposes in connection with this Project shall not be construed as p clicc o derQ ation of any i.,r. t or other reserved rights. �0^}�A •V� ARTICLE 8 --TERM AND TERMINATION on' . At the expiration of the initial term or the applicable extension term, as applicable, -- -• e --• .. - •- .. - •-• .- • -•- - •-" • • -•°ing the foregoing, CRC may elect to have the term of this Agreement end with the expiration of the initial term or the then current extension term, as applicable, by delivering written noti c to CM o or before November 30 of the initial term or the then current extension term, cesp stive4r c-eA e' '3 .0 or S Y` 4 S i"`. '•-f- 8.2 Termin on. (a) Either party may terminate this Agreement upon not less than seven days' written notice if the other party fails to perform substantially in accordance with the terms of this Agreement through no fault of the party initiating the termination. Failure of CRC to make payments to CM in accordance with this Agreement shall be considered substantial nonperformance and cause for termination. (b) Either party may terminate this Agreement upon written notice at any time after the Basic Services and the Additional Services (if applicable) have been provided, so that no further services are required by CM pursuant to this Agreement. (c) CRC may terminate this Agreement upon written notice if, at any time, Tim Russell no longer:(i)is a principal of CM;or(ii)directs the business operations of CM. (d) If this Agreement is terminated for reasons other than the fault of CM, then CM shall be compensated for services performed prior to termination, together with: (i) Reimbursable Expenses (as defined in Section 10.2) then due; and (ii) all reasonable costs, including, without limitation, attorneys' fees and court costs, directly attributable to termination for which CM is not otherwise compensated. (e) If this Agreement is terminated due to the fault of CM, then CRC: (i) shall be compensated for all reasonable costs, including, without limitation, attorneys' fees and court costs, directly attributable to termination for which CRC is not otherwise compensated; and (ii) may exercise any other remedy available hereunder, at law, or in equity. 8.3 Project Suspension. CRC may suspend work on the Project at any time by issuing a stop work order; provided that such suspension shall not result in a termination by either party, except to the extent that such termination is permitted pursuant to Subsection 5.2(d) or Section 8.2. If the Project is suspended by CRC for more than 30 consecutive days, then CM shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, CM's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of CM's services. 8.4 Performance Suspension. If CRC fails to make payment when due to CM for services and expenses, then CM, upon seven days' written notice to CRC, may suspend performance of services under this Agreement. In the event of a suspension of services as permitted by this Section, CM shall have no liability to CRC for delay or damage caused to CRC because of such suspension of services. ARTICLE 9—INSURANCE 9.1 Required Insurance. CM shall purchase and maintain, from a company or companies lawfully authorized to do business in the State of Indiana,such insurance as will protect CM from the following claims that may arise out of,or result from, CM's operations under this Agreement and for which CM may be legally liable: (a) Claims for workers compensation, disability benefit, and other similar employee benefit acts that are applicable to the operations to be performed; (b) Claims for damages because of bodily injury,occupational sickness or disease,or death of any person; (c) Claims for damages insured by usual personal injury liability coverage that are sustained by any person; (d) Claims for damages,other than to the work itself, because of injury to or destruction of tangible property, including loss of use resulting there from; and (e) Claims for damages because of bodily injury,death of a person,or property damage arising out of ownership, maintenance, or use of a motor vehicle. 9.2 Required Coverages. The insurance required by this Article shall be written for limits of liability not less than those specified on Exhibit C or required bylaw, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption from the date of commencement of operations under this Agreement until the date of final payment and termination of any coverage required to be maintained after final payment. As specified in Exhibit C, policies of insurance shall: (a) name CRC as a named insured or additional insured, as applicable; and (b) provide that the policy may not be cancelled without 30 days' advance written notice to CRC. CM shall provide to CRC and A/E certificates of all insurance required by this Article. 9.3 Subrogation. CRC and CM waive and release all rights of recovery that they may have against: (a) the other party or its consultants, contractors, agents, and employees; and (b)A/E or its consultants, contractors, agents, and employees; for loss or damage, whether or not caused by any alleged negligence of the other party, NE, or the consultants, contractors, agents, or employees of the other party or NE, to the extent that such loss or damage is or would be covered by any insurance required to be maintained under this Article (or that otherwise is maintained). Each of CRC and CM shall require similar waivers from: (a)NE; and (b) the consultants, contractors, agents, and employees of CRC and CM, respectively, and NE. ARTICLE 10 --PAYMENT 10.1 Direct Personnel Expense."Direct Personnel Expense"shall mean the labor rates of CM's personnel engaged on the Project as set forth on Exhibit D. 10.2 Reimbursable Expenses. "Reimbursable Expenses" shall mean the following actual out-of-pocket expenses incurred by CM and CM's consultants, agents, and employees in the interest of the Project: (a) long- distance communication expenses; (b) fees paid for securing approval of governmental authorities having jurisdiction over the Project; (c) reproduction, postage, express delivery, and electronic facsimile transmission expenses; (d)any additional expense of overtime work requiring higher than regular rates, to the extent authorized in advance by CRC; provided that, except for such additional expense of overtime work, Reimbursable Expenses shall not include Direct Personnel Expense; and (e) any general conditions costs, to the extent authorized in advance by CRC. Reimbursable Expenses will be charged to CRC "at cost" and without any "mark up". See also EXHIBIT E for list of the General Conditions Reimbursable Expenses. 10.3 Compensation.Compensation for Basic Services and Additional Services shall be computed in the manner set forth on Exhibit D. 10.4 Monthly Statements. Except as set forth on Exhibit D, payment for Basic Services,Additional Services,and Reimbursable Expenses shall be based on a written statement of CM's services,compensation,expenses, and charges(the"Monthly Statement")that: (a)is submitted by CM to CRC and NE by the first day of a calendar month; (b)describes all services rendered; and (c) sets forth: (i) all compensation for Basic Services and the computation of those charges; (ii)all compensation for Additional Services and the computation of those charges; (iii)all charges for Reimbursable Expenses and the actual out-of-pocket expenses comprising the Reimbursable Expenses;and(iv)a certification by CM that: (A)such payment is due to CM under this Agreement;and(B)CM has computed all compensation in the manner set forth in Exhibit D. Preconstruction fees shall be billed out monthly as costs are incurred per Exhibit D. 10.5 Monthly Payments. Each Monthly Statement that is submitted by CM to CRC and NE by the first day of a calendar month will be considered for approval at the next regular public meeting held by CRC. If a Monthly Statement is not submitted by CM to CRC and NE by the first day of a calendar month,then CRC reserves the right to delay the consideration of that Monthly Statement until the regular public meeting held by CRC in the following calendar month, and CRC reserves the right to reject or table any Monthly Statement on any legitimate basis, including legitimate questions concerning the basis of any charge or the computation of any compensation; provided that, to the extent that: (a)charges on a Monthly Statement are separated into discrete, specified services; and (b) there are charges on such Monthly Statement for discrete, specified services that CRC does not question or dispute; then CRC shall approve the charges for the discrete, specified services for which CRC does not have any questions or disputes.Any Monthly Statement rejected or tabled will be considered for approval at the next regular meeting held by CRC. All compensation and charges that are set forth on a Monthly Statement approved by CRC will be paid to CM by the last day of the calendar month in which CRC approved the Monthly Statement. 10.6 Withholding. No deductions shall be made from CM's compensation on account of: (a) penalty, liquidated damages, or other sums withheld from payments to contractors; or (b) the cost of changes in work, other than those for which CM has been found to be liable. If any subcontractor or consultant of CM or any other person or entity acting for, through, or under CM files a notice of lien or claim with or against CRC, then, notwithstanding any other term or condition of this Agreement, CRC may: (a)withhold payment to CM in an amount equal to 200% of the lien or claim; and (b)continue withholding such amount of payment until the lien or claim is released or waived to the reasonable satisfaction of CRC. 10.7 Record. Records of: (a) Reimbursable Expenses; and (b) expenses with respect to: (i) Additional Services; and (ii) services performed on the basis of labor rates; shall be available to CRC or CRC's authorized representative at reasonable times and at reasonable locations. ARTICLE 11 --ENVIRONMENTAL Except: (a) to the extent caused by CM or its consultants, contractors, agents, or employees; or(b) in the case of a failure of CM substantially to perform in accordance with the terms and conditions of this Agreement; CM shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials in any form at the Project site, including asbestos, asbestos products, polychlorinated biphenyl (PCB), or other toxic substances. ARTICLE 12 --AMENDMENT This Agreement represents the entire agreement between CRC and CM and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both CRC and CM. Notwithstanding the foregoing, if CRC and CM desire to amend this Agreement to change or add to: (a)the Basic Services and/or the Additional Services; and/or(b)the definition of the Project; then such amendment may be effected by attaching hereto additional exhibits that: (a) are initialed by both CRC and CM; and (b) describe the: (i) change or addition to the Basic Services and/or the Additional Services; and/or (ii) the change in the definition of the Project. Accordingly, to effect such amendment, it is not necessary that the parties execute a separate instrument amending this Agreement. ARTICLE 13 --NOTICE Any notice required or permitted to be given pursuant to this Agreement shall be in writing, and shall be deemed to have been given when: (a)delivered in person;or(b)sent by national overnight delivery service,with confirmation of receipt,addressed follows:to CRC at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032, Attn: Les Olds, with a copy to: Karl P. Haas, Esq., Wallack, Somers & Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile: 317-231-9900; and to CM at Meyer Najem Construction, LLC, 13099 Parkside Drive, Fishers, Indiana 46038, Telephone: 317-813-6143, Facsimile: 317-813-7143;Attn: Sam Mishelow. Either party may change its address for notice from time to time by delivering notice to the other party as provided above. ARTICLE 14 --MISCELLANEOUS This Agreement shall be governed by the laws of the State of Indiana. Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either CRC or CM. This Agreement shall bind, and inure to the benefit of, CRC and CM, and the respective members, partners, successors, and assigns of each. Neither CRC nor CM shall assign this Agreement without the written consent of the other. All Exhibits referenced herein are attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, CRC and CM have executed this Agreement as of the date set forth above. CRC: THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: Printed: Title: CM: MEYER NAJEM CONSTRUCTION, LLC By: Printed: Title: 5� INDEX TO EXHIBITS Exhibit A Basic Services Exhibit B The Project Exhibit C Required Insurance Coverages Exhibit D Compensation and Charges(Including Computation) Exhibit E General Conditions Reimbursable Expenses EXHIBIT A Basic Services See Section 2.2 and 2.3 EXHIBIT B The Project Construction of Amphitheater,Village Green and General Improvements to 3rd Avenue SW, Carmel, Indiana. Anticipated construction costs of projects is approximately$6.5M (six million, five hundred thousand.) EXHIBIT C Required Insurance Coverages See MNC Certificate of Insurance A. City Securities—General,Auto,WC, Umb. B. Old National—Professional Liability • twor Ar ORD,, CERTIFICATE OF LIABILITY INSURANCE 8/17 ) /2009 PRODUCER (317) 844-0273 FAX: (317) 972-7142 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE City Securities Corp. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 8900 Keystone Crossing ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Suite 300 Indianapolis IN 46240 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A Cincinnati Insurance Co Meyer Najem Construction LLC INSURER B' 13099 Parkside Drive INSURER C INSURER D Indianapolis IN 46038 INSURER E COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS INSR ADD'L POLICY EFFECTIVE POLICY EXPIRATION LTR JNSRD TYPE OF INSURANCE POLICY NUMBER DATE(MM/DDIYY) DATE1MM/DDIYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED 300,000 PREMISES(Ea occurrence) $ A CLAIMS MADE X OCCUR CPP3658815 1/1/2009 1/1/2010 MED EXP(Any one person) $ 10,000 PERSONAL BADVINJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER' PRODUCTS-COMP/OP AGG $ 2000,000 POLICY I E I JECT LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 1,000,000 X I ANY AUTO (Ea accident) A ALLOWNEDAUTOS CPP3658815 1/1/2009 1/1/2010 BODILY INJURY SCHEDULED AUTOS (Per person) $ HIRED AUTOS BODILY INJURY $ NON-OWNED AUTOS (Per accident) W PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY AGG $ EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE $ 10,000,000 X OCCUR CLAIMS MADE AGGREGATE $ 10,000,000 A - DEDUCTIBLE CPP3658815 1/1/2009 1/1/2010 X RETENTION $NIL $ A WORKERS COMPENSATION AND WC STATU- OTH- EMPLOYERS'LIABILITY X TORY LIMITS ER ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $ 100,000 OFFICER/MEMBER EXCLUDED? WC2114588 1/1/2009 1/1/2010 If yes,describe under E.L.DISEASE-EA EMPLOYEE$ 100,000 SPECIAL PROVISIONS below E L.DISEASE-POLICY LIMIT_$ 500,000 A OTHER LEASED/RENTED EQUIP. CPP3658815 1/1/2009 1/1/2010 LIMIT $25,000 DEDUCTIBLE 81,000 DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS THe City of Carmel Redevelopment Commission is named as additional insured CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE The City of Carmel Redevelopment Commissi EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 W Main Street, Suite 220 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT Carmel, IN 46032 FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Stephen Wells/PSF L�u<,,- (j ACORD 25(2001/08) ©ACORD CORPORATION 1988 IMen'q,,,,,,a,.,o_ • Client#::433421 MEYERNAJ ry745/r _b• ACORD. CERTIFICATE OF LIABILITY INSURANCE DATE( 0/DD/YY") PRdoucE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Old National Insurance/mer ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE P.O. Box 80159 HOLDER.THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Indianapolis, IN 46280-0159 317 575-9999 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A: Greenwich Ins Co-XL Environmental Meyer Sr Najem, Inc. Etal INSURER B. 13099 Parkside Dr. INSURER C. Fishers, IN 46038 INSURER D. _ INSURER E. COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADD'L TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LTR NSRC _ DATE IMM/DD/Y DATEIMMIDDM'1 LIMITS GENERAL LIABILITY EACH OCCURRENCE $ DAMAGE TO RENTED COMMERCIAL GENERAL LIABILITY PREMISES(Ea occurrence) $ CLAIMS MADE OCCUR MED EXP(Any one person) $ PERSONAL 8 ADV INJURY $ GENERAL AGGREGATE _$ GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS-COMP/OP AGG $ —7 POLICY n PRO- LOC JECT AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO (Ea accident) ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) HIRED AUTOS BODILY INJURY NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO EA ACC $ OTHER THAN AUTO ONLY: AGG $ EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE RETENTION $ $ WC STATU- OTH- WORKERS COMPENSATION AND TORY 1 WITS ER EMPLOYERS'LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? E.L.DISEASE-EA EMPLOYEE $ If yes,describe under SPECIAL PROVISIONS below E.L DISEASE-POLICY LIMIT $ A OTHER Professional PEC002172402 12/01/08 12/01/09 $2,000,000 ea claim Environmental $2,000,000 aggregate Liability $25,000 ded. DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS CERTIFICATE HOLDER CANCELLATION 10 Days for Non-Payment SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ACORD 25(2001/08)1 of 2 #S297843/M248732 ICNAP 0 ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25-S(2001/08) 2 of 2 #S297843/M248732 EXHIBIT D Compensation and Charges(Including Computation) Pre-Construction Phase Fee: Fixed fee at'%/?%(one half percent)of actual construction costs. One half(%%) preconstruction fee shall be billed monthly during the preconstruction phase not to exceed$32,400(based on anticipated construction cost of$6,500,000 X'h%(one half percent). If construction costs exceed amount above, CM will need to obtain written approval from CRC to increase preconstruction fees. Construction Phase Fee: Fixed at 4'/2%of actual construction costs. Four and one half percent(4'%z%)construction management fee shall be calculated as a percentage of the Construction Costs based on project duration of 12 (twelve) months, and construction cost of$6,500,000, and billed monthly. If project duration exceeds 12 (twelve) months, CM fee may be adjusted accordingly with consent of the CRC. Total CM Fee: 5% (Five percent) (1/2% Pre-construction Phase Fee+41/2%Construction Phase Fee) General Conditions(All project related staff): Fixed at 5%of actual construction costs. A 5%general condition fee(staff)shall be calculated as a percentage of the Construction Costs estimated at$6,500,000. Additional Services: (If required) As stated in Article 3 shall be performed following authorization from CRC to CM. Compensation for such Additional Services shall be negotiated between CRC and CM prior to performing the Additional Services. Reimbursable Expenses: Shall be billed to CRC at the actual cost to CM. EXHIBIT "E" GENERAL CONDITION REIMBURSABLE EXPENSES The City of Carmel Redevelopment Commission P ermits 0101 State Review 0102 Environmental (EPA) 0103 Transportation (DOT) 0104 Drainage 0105 Sanitary/Septic 0106 I.L.P. 0107 Building 0108 Certificate of Occupancy Communications 0116 Computer Equipment and Internet Access 0117 Pager & Radio Equipment 0118 Phone/Fax Equipment Facilities 0119 Field Office Trailer 0120 Field Storage Trailer 0121 Project Signage 0122 Temporary Toilets 0123 Dumpsters 0124 Drinking Water 0125 Field Office Equipment 0126 Field Office Supplies Utilities 0127 Water Usage 0128 Water Service 0130 Trailer/Tool Elect. Usage 0131 Building Elect. Usage 0132 Temporary Panels & Dist. 0133 Phone/Fax Usage 0134 Phone Service Tools & Equipment 0135 Small Tools & Equipment 0136 Cranes 0138 Scaffolding Testing 0140 Soil 0141 Concrete & Soil 0142 Asphalt 0143 Steel 0144 Other Note: The inclusion of these items may or may not apply to this project depending upon the final 1 scope. • Survey 0145 Property 0146 Building 0147 Road & Curbs 0148 Utilities Miscellaneous 0149 Warranty 0150 As-Builts/O & M 0151 Postage 0152 Printing & Reproduction 0153 Photo-Journal 0154 Legal services Insurance 0156 Project Liability (including professional liability coverage if applicable) Security 0158 Dual Gates 0159 Security Fence 0160 Security/Watchman 0160 Weather Protection 0161 Temp. Heat/AC Equipment 0162 Temp. Heat/AC Fuel Usage 0163 Temp. Dust Partitions 0164 Barricades 0165 Traffic Control 0166 Temp. Roads/Parking 0167 De-Watering/Pumping Protection 0168 Snow Removal 0169 Clean Streets 0170 Trash Chute Safety 0171 Temp. Fire Service 0172 Perimeter Safety Rail 0173 Temp. Stairs 0174 Shoring Structure 0175 Shoring Earth 0176 Underpinning 0116 Safety/First Aid Development 0179 Road Impact 0180 Sanitary Connection 0181 Water Connection 0182 Gas/Oil - Connection 0183 Electric Connection 0184 Storm Connection Note: The inclusion of these items may or may not apply to this project depending upon the final 2 scope.