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Shiel Sexton - Carmel CityCenter Construction
�o e(T 4(4%/05 CONSTRUCTION MANAGEMENT AGREEMENT This Construction Management Agreement (the "Agreement ") is executed this 16th day of March, 2005, by and between the City of Carmel Redevelopment Commission ( "CRC ") and Shiel Sexton Company, Inc. ( "CM "). ARTICLE I — CONSTRUCTION MANAGER'S 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 CSO Architects and Interiors ( "CSO "). 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 the 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 B. 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 CSO to ascertain the requirements of the Project (as defined and described in Exhibit A), and demonstrate to CSO an understanding of the foregoing. (b) Provide to CSO a preliminary evaluation of the Project Requirements. (c) Based on early schematic designs and other design criteria prepared by CSO; (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 CSO cost evaluations of alternative materials and systems. (d) Expeditiously: (i) review design documents during their development; and(ii) advise CSO on proposed site use and improvements, selection of materials, building systems and equipment, and methods of Project delivery. (e) Provide recommendations to CSO 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 CSO's review and CRC's approval. The Project Schedule shall coordinate and integrate CM's services, CSO's services, and CRC's responsibilities 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 CSO progresses with the preparation of the schematic, design development, and construction documents (the "Construction Documents "), CM shall prepare, at intervals established by CM and CSO, estimates of the Construction Cost in increasing detail and refinement, using supporting detail where applicable. Such estimates shall be provided for CSO's review and CRC's approval. CM shall advise CRC and CSO, if at any time it appears that the Construction Cost may exceed the latest Construction Cost estimate. Following CRC's issuance of the Construction Documents, CM shall update and submit the latest estimate o e Construction Cost and the Project Schedule for CSO's review and CRC's approval. (h) Consult with CSO regarding the Construction Documents and make recommendations whenever design details adversely affect constructibility, cost, or the Project Schedule. (I) Provide recommendations and information to CSO 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 "). (j) Provide recommendations and information to CSO regarding the allocation of responsibilities for safety programs among the contractors. (k) Advise CSO on the division of the Project into individual contractors 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 CSO for each set of bidding documents. CM shall expedite and coordinate the ordering and delivery of materials requiring Tong lead time. (m) If multiple contractors are to be awarded contracts, review the Construction Documents and make recommendations to CSO 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 CSO; and (ii) used by CRC in the public bidding process. (o) Submit to CSO a list of prospective bidders, develop bidders' interest in the Project, and assist CRC and CSO with respect to questions from bidders. (p) Prepare bid analyses and make recommendations to CSO 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. 2 (q) Prepare Contract Documents on forms provided by CRC for review by CSO and approval by CRC, and advise CSO 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 in the Construction Phase: (a) Administer the Contract Documents in cooperation with CSO. (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 CSO for the purpose of managing the Project in accordance with the latest approved estimate of Construction Cost, the Project Schedule, and the Contractor 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 CSO 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 CSO as required to show current conditions. If an update indicates that the previously approved Project Schedule may not be met, CM shall recommend corrective action to CSO. (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 CSO when requirements of any of the Contract Documents are not being fulfilled. (g) In collaboration with CSO, 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 CSO, coordinate the performance of tests and inspections required by the Contract Documents or by law. 3 (i) In collaboration with CSO, establish and implement procedures for addressing observed deficiencies. (j) Monitor the approved estimate of the Construction Cost showing actual costs for activities in progress and estimates for uncompleted tasks in comparison with such approved estimate. (k) Develop cash flow reports and forecasts for the Project, and advise CSO as to variances between actual and budgeted or estimated costs. (1) 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 CSO, 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 CSO 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 between contractors regarding jobsite safety and endeavor to obtain compliance with contractors' contractual obligations regarding safety and recommend to CRC 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 4 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 CSO, 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 CSO, may reject work which 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 CSO requests for interpretations of the meaning and intent of the drawings and specifications, and assist in the resolution of questions that may arise. (t) Review requests for changes, assist in negotiating contractors' proposals, submit recommendations to CSO, and, if they are accepted, prepare change orders and construction change directives that incorporate CSO's modifications to the Construction Documents. (u) Assist CSO in the review, evaluation, and documentation of claims. (v) Secure certificates of insurance from the contractors, and forward them to CSO. (w) In collaboration with CSO, 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 CSO 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, CSO, or the contractors. (z) Record the progress of the Project, including: (i) submitting to CRC and CSO 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 CSO 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 5 professional engineer; making all of the foregoing available to CSO. All of the foregoing shall be delivered to CRC upon completion of the Project. (bb) Coordinate among contractors: (1) 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 CSO and representatives of the 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 CSO a list of incomplete or unsatisfactory items and a schedule for their completion; and (ii) assist CSO in conducting inspections to determine whether the work or a designated portion thereof is substantially complete. (if) 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 CSO when work is ready for final inspection; and (ii) assist CSO in conducting final inspections. (hh) Secure and transmit to CSO 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, or charge of, and shall not be responsible for, construction means, methods, techniques, sequences procedures, or safety precautions and programs, as these are solely the contractors' responsibility under the Contract Documents; (11) be responsible for a contractor's failure to carry out the work in accordance with the respective Contract Documents; or (iii) have control over, or charge of, acts or omissions of the contractors, subcontractors, the agents or employees of the contractors or subcontractors, or any other persons performing portions of the work 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 CSO, which consent shall not be withheld unreasonably. ARTICLE 3 — ADDITIONAL SERVICES The "Additional Services" shall consist of the following services: 6 (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 other cause during construction, and furnishing services required in connection with the replacement of such work. (c) Providing services made necessary by the termination or default of CSO or a contractor, by major defects or deficiencies in the work of a contractor, or by failure of performance of either CRC, CSO 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 CSO. (i) Providing services required for or in connection with CRC's selection, procurement, or installation of furniture, furnishings, and related equipment. (j) Providing services for tenant improvements. (k) Providing any other services not otherwise included in this Agreement. The Additional Services shall: (a) not be included in the Basic Services; and (b) be provided only upon receipt by CM of authorization from CRC therefore. ARTICLE 4— CRC RIGHTS AND RESPONSIBILITIES 4.1 Responsibilities. CRC shall have the following responsibilities: (a) Provide through CSO 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 CSO an overall budget for the Project based on consultation by CSO 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 CSO evidence that financial arrangements have been made to fulfill CRC's obligations under this Agreement. (d) Cause CSO, as the designated agent of CRC, to render decisions in a timely manner pertaining to documents submitted by CM in order to avoid 7 unreasonable delay in the orderly and sequential progress of CM's services. CM shall not be responsible for actions taken by CSO. (e) Furnish through CSO 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 CSO a sufficient quantity of Construction Documents. (h) Require CSO to deliver prompt written notice to CRC and CM if CSO becomes aware of any fault or defect in the Project, or any nonconformance with the Contract Documents. (1) Deliver prompt written notice to CM if CRC becomes aware of any fault or defect in the Project, or any nonconformance with the Contract Documents. (j) Furnish through CSO information or services under CRC's control with reasonable promptness to avoid delay in the orderly progress of CM's services and the progress of the work. The services, information and reports required by clauses (d) through (g), above, 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 CSO as its agent for the purpose of day to day contact with CM. Notwithstanding anything to the contrary set forth herein, CRC has authorized CSO to make all decisions with respect to the Project as set forth herein; provided that CSO 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, CM shall not take any actions with respect to such decision until it has received the required consent. ARTICLE 5— CONSTRUCTION COST 5.1 Definition. (a) The "Construction Cost" shall be the total cost or estimated cost to CRC of all elements of the Project designed or specified by CSO, and shall include: (i) the cost, at current market rates, of: (A) labor and materials required to complete the Project; and (B) equipment designed, specified, selected, or specially for the Project; (ii) a reasonable allowance for the contractors' overhead and profit; and (iii) a reasonable allowance for contingencies for market conditions at the time of 8 bidding and for 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 CSO 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. 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 estimates of the Construction Cost, and detailed estimates of the Construction Cost prepared by CM represent CM's best judgment as a person or 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 or 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 CSO 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 clause (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 9 (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 CSO 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 contractual agreements. 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 which shall accrue to CRC, and CM shall make provisions so that they can be secured. ARTICLE 7— OWNERSHIP AND USE OF ARCHITECT'S DOCUMENTS The drawings, specifications and other documents prepared by CSO (the "CSO Documents ") are instruments of CSO's service through which the work to be executed by the contractors is described. CM: (a) may retain one record set of CSO Documents; but (b) shall not own or claim a copyright in CSO Documents. All copies of CSO Documents, except CM's record set, shall be returned to CSO upon completion of the Project. CSO Documents, and copies thereof furnished to CM, are for use solely with respect to the Project, and are 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 CSO. CM is granted a limited license to sue and reproduce applicable portions of CSO 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 CSO Documents. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of any copyright or other reserved rights. ARTICLE 8— TERMINATION, SUSPENSION, OR ABANDONMENT 8.1 Termination. (a) Either party may terminate this Agreement upon not less than seven days written notice if the other party fails substantially to perform 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) CRC may terminate this Agreement upon not less than seven days written notice to CM if the Project is permanently abandoned. (c) CM may terminate this Agreement by giving written notice if the Project is abandoned by CRC for more than 90 consecutive days. (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 Reimbursable Expenses (as defined in Section 10.2) then due and all reasonable costs directly attributable to termination for which CM is not otherwise compensated. 10 (e) If this Agreement is terminated due to the fault of CM, then: (i) CRC shall be compensated for all reasonable costs directly attributable to termination for which CRC is not otherwise compensated; and (ii) CRC may exercise any other remedy available hereunder, at law, or in equity. 8.2 Project Suspension. If the Project is suspended by CRC for more than 30 consecutive days, then the 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. 8.3 Performance Suspension. If CRC fails to make payment when due 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 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 therefrom; 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. The insurance required by this Article shall be written for not less than limits of liability set forth on Exhibit C or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims -made basis, shall be maintained without interruption from date of commencement of operations under this Agreement until date of final payment and termination of any coverage required to be maintained after final payment. As set forth 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 written notice to CRC in advance of the cancellation. CM shall provide to CRC and CSO certificates of all insurance required by this Article. ARTICLE 10— PAYMENTS TO THE CONSTRUCTION MANAGER 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 B. 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 11 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 ". 10.3 Compensation. Compensation for Basic Services and Additional Services shall be computed in the manner set forth on Exhibit B. 10.4 Monthly Statements. Except as set forth on Exhibit B, 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 CSO 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 such payment is due to CM under this Agreement, and CM has computed all compensation in the manner set forth in Exhibit B. 10.5 Monthly Payments. Each Monthly Statement that is submitted by CM to CRC and CSO 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 CSO 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 it files a notice or 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) continuing 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 Reimbursable Expenses and expenses pertaining to Additional Services and 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 — MISCELLANEOUS 11.1 Applicable Law. 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 12 action in favor of, a third party against either CRC or CM. 11.2 Subrogation. CRC and CM waive all rights against each other, CSO, and their respective consultants, contractors, agents and employees, for damages, but only to the extent covered by property insurance during construction. CRC and CM each shall require similar waivers from CSO, and their respective consultants, contractors, agents and employees. 11.3 Binding Effect. 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. 11.4 Entire Agreement. 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. 11.5 Environmental. Except to the extent: (a) caused by CM or its consultant, contractor, agent, or employee; or (b) 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. 11.6 Notices. Any notice required or permitted to be given by either party to this Agreement shall be in writing, and shall be deemed to have been given when: (a) delivered in person to the other party; 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, Facsimile: 317/844 -3498, Attn: Les S. Olds, AIA, 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 Shiel Sexton Co., Inc., 902 N. Capitol Avenue, Indianapolis, Indiana 46204, Attn: Lynn Wall, Vice President, with a copy to Kristin L. Altice, General Counsel, 902 N. Capitol Avenue, Indianapolis, Indiana. Either party may change its address for notice from time to time by delivering notice to the other party as provided above. IN WITNESS WHEREOF, CRC and CM have executed this Agreement as of the date set forth above. THE CITY OF CARMEL REDEVELOPMENT COMMISSION 1 By: Ron Carter, President SHIEL SEXT.N CO., I By: Lynn 13 e President of Operations INDEX TO EXHIBITS Exhibit A Project (including description, location and scope) Exhibit B Payment of compensation and charges (including computation) Exhibit C Required insurance coverages 14 EXHIBIT A Project This project includes any and all Construction Management services requested by CRC or CSO for the Project entitled Carmel City Center and set forth on the Proposed Master Plan dated February, 2005. Page 1 of 2 i J t. SAWS l+41 1 CI II' 1 [;71 PARtCEI, I c r Li u lY 1 =1 /8,8 / /662 • I.• ice•: OLD TOWN ARTS DISTRICT LIMITS SEL F #13 EL #16 GATEWAY PYLONS / PARCEL #19 PARCEL #4 (PROJECT #4)1[ 39,300 SF PARCEL #5 - -I (PROJECT #5) 703,730 SF 1 — CITY BUILT ROAD i PI I'�� Ir ARCEL #27 SF PARCEL—li 2 fi�:l �Jr 12,249 SF L1 4, - ---1 PARCEL 6121 9,229 SF PARCEL' #201f 8,058 SF, n,l SHAPIRO BLOCK (PARCEL # 10) 146,174 SF Y11;9, NAV CARMEL CITY LAND (PROJECT #7)/ 478,713 SF y — PARCEL #17 EXISTING 23,155 SF —. GOVERNMENT CENTER. PARCEL #23 206,241 SF PARCEL #25 52,006 SF [ 0 I "G� ULJ 1 rats cr. 11 V--)-) ! Ll __r3 PARCEL # 1 i= I J ULLI L z1,6S�O 15F PARCEL #3 (PROJECT # COMMERCIAL 7DKE 56,300$F PARCEL #9 2 ,961 SF 1PARCEL t'14 ! 97.496.SF .a Alt ar PARCEL #1 COI ASH. S. PARCEL #10 PARCEL #2 ( j PARCEL #11 PARCEL #3 PARCEL #41 L1 PARCEL #5 PARCEL #6 — PARCEL #7 LiPARCEL 118 PARCEL #9 PARCEL #12 PARCEL #13 PARCEL #14 { - 71 CITY BUILT ROADS I = I PARCEL #15 I PARCEL #16 a. FRRRUARY 1003 a- 1241 SO R NUMRRR 33111 PARCEL #17 NOT USED PARCEL #19 PARCEL #20 PARCEL #21 PARCEL #22 PARCEL #23 PARCEL #24 PARCEL #25 PARCEL #26 PARCEL #27 PARCEL 116 (PROJECT #6) 131,000 SF l__ I PARCEL 1128 L__11 V- PARCH, 2 -VETERAN- - REFLECTING OLD TOWN ARTS DISTRICT EXISTING GOVERNMENT CENTER CARMEL CITY LAND/ CITY BUILT PUBLIC SPACES -• CRC LIMITS (I-1-02) — PARCEL # 2 (PROJECT #2) 195,627 SF PARCEL #1 (PROJECT #1) 770,000 SF CRC LIMITS (1 -1 -02) — — — — OLD TOWN ARTS DISTRICT (12-4-03) CARMEL C I T Y C E N T E R PROPOSED MASTER PLAN CARMEL REDEVELOPMENT COMMISSION CASO /addle= • . IaZ.IlAAUA3 {\': 3CAIR.3 L— . EXHIBIT B Payment of Compensation and Charges I. Preconstruction Phase Services 1. Preconstruction phase service will be compensated based on actual hours expended on the Project multiplied by the hourly rates* set forth below: Personal Rate Vice President $200 Project Manager $110 Superintendent $105 Project Engineer $80 Coordinator $65 Estimator $105 I.T. Technician $90 Safety Manager $100 II. Construction Phase Services 1. Compensation for Construction Phase Services shall consist of: a. Reimbursable Expenses b. General Conditions c. CM Fee; 2. Reimbursable Expenses which shall be charged at cost without any CM fee; 3. General Conditions, including salaries of CM's supervisory and administrative personal (which shall include CM's proprietary burden * *) based on actual hours expended on the Project and shall be charged at cost without any CM fee; and 4. CM Fee shall be computed by multiplying the Construction Cost by five percent (5 %). Example: Construction Cost for one month = $3,000,000 A. Reimbursable Expenses = B. General Conditions = C. CM Fee ($3M x 5 %) = $50,000 at cost $100,000 at cost $150,000 Total CM Invoice $300,000 *The hourly rates shall be adjusted annually. * *CM's proprietary burden shall be adjusted on annually to reflect CM's actual burden EXHIBIT C Required Insurance Coverages ACORD, CERTIFICATE OF LIABIL TY INSURANCE DATE (MM /DDT fYY) 03/16/2005 PROOUCER•.(317)236 -0900 FAX (317)236 -0783 JW Flynn Company 902 Virginia Avenue P. 0. Box 1977 Indianapolis, IN 46206 -1977 INsuRED Shie Sexton Company Inc 902 N. Capitol Avenue Indianapolis, IN 46206 1 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURER A: Columbia Casual ty Company(CNA) INSURER B: INSURER C: INSURER 0: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDIN 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. ILTR (N SRC TYPE OF INSURANCE POLICY NUMBER DATE (MMFDD IE PRATE fMMfDDl1^IOIN LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CPP 11 403 93 06 $25,000 SELF INSURED RETENTION 07/24/2004 07/25/2005 EACHOCCURRENCE $ 1,000,000 DAMAGE TO RENTED $ X CLAIMS MADE n OCCUR MED EXP (Any one person) $ X Contractors PERSONAL &ADVINJURY $ Professional Liab GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY n JECT n LOC PRODUCTS - COMP /OP AGG $ AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS COMBINED SINGLE LIMIT (Ea accident) $ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE $ 7 OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ $ WORKERS COMPENSATION AND WORKERS LIABILITY ANY PROPRIETOR /PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below WC STATU- 10TH- TORY LIMITS I ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY UMIT $ OTHER ' DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS CERT c, ty of Carmel Redevelopment Comi ss i on One CI rcl e Square Carmel , IN 46032 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. /1 AUTHORIZED REPRESENTATIVE /(94 ��E (/- QPikc/ Deborah Vanderveen /DNV ACORD 25 (2001/08) © ACORD CORPORATION 1988 ACORD CERTIFICATE OF LIABILITY INSURANCE 03/16/2005 TYPE OF INSURANCE 'PRODUCER- (317)236 -0900 FAX (317)236 -0783 ,7W Flynn Company 600 E. 96th St. , Suite 400 P. O. Box 80159 Indianapolis, IN 46280 -0159 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Shiel Sexton Company Inc MBA Leasing Inc. 902 N. Capitol Avenue Indianapolis In 46204 INSURER A: National Fire Insurance Co GENERAL INSURERS: Great American Insurance Co GL2074907606 ADDITIONAL INSURED AND WAIVER OF SUBROGATION REQUIRED BY CONTRACT /NON—CONTRIBUTORY REQUIRED BY CONTRACT INSURER C: Valley Forge Insurance Co 07/01/2005 INSURERD: Transcontinental Ins Co • INSURER E: Continental Casualty Co DAMAGE TO RENTED PRFMISFS (Fe nreurencpp COVERAGES THE POLIC4ES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDIN ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE 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. ILTR N$$J: TYPE OF INSURANCE POLICY NUMBER DATE fMM�gDm1E POLICY DAT f EXPIRATION LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY GL2074907606 ADDITIONAL INSURED AND WAIVER OF SUBROGATION REQUIRED BY CONTRACT /NON—CONTRIBUTORY REQUIRED BY CONTRACT 07/01/2004 07/01/2005 EACH OCCURRENCE $ 1,000,000 X DAMAGE TO RENTED PRFMISFS (Fe nreurencpp $ SOO, 000 CLAIMS MADE X OCCUR MED EXP (Any one person) _ $ 5,000 IF PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PaRIMARY PRODUCTS - COMP /OP AGG $ 1,000,000 7 PoucY ft n LocIF D AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS IF NON -OWNED AUTOS Hired Car BUA 2070872426 ADDITIONAL INSURED AND WAIVER OF SUBROGATION REQUIRED BY CONTRACT $50,000 LIMIT PER VEHICLE 07/01/2004 07/01/2005 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 X BODILY INJURY (Per person) $ X BODILY INJURY (Per accident) $ X X PROPERTY DAMAGE (Per accident) s Physical Damage GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ E EXCESS /UMBRELLA LIABILITY —X-1 C2070872457 07/01/2004 07/01/2005 EACH OCCURRENCE $ 10,000,000 OCCUR CLAIMS MADE AGGREGATE $ 10, 000, 000 DEDUCTIBLE RETENTION $ 10,000 $ $ X C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR /PARTNER /EXECUTIVE OFFICER/MEMBER EXCLUDED? IF If yes, describe under SPECIAL PROVISIONS below WC2070872443 WAIVER OF SUBROGATION REQUIRED BY CONTRACT 07/01/2004 07/01/2005 X TW I ilas r 1OR E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 B OTHER Leased or Rented Equipment GRA07010203 ADDITIONAL INSURED IF REQUIRED BY CONTRACT 07/01/2004 07/01/2005 $150000 Per Item $200000 Maximum DESCRIPTION OF OPERATIONS 1 LOCATIONS / VEHICLES 1 EXCLUSIONS ADDED BY ENDORSEMENT/ SPECIAL PROVISIONS CERTIFICATE HOLDER CANCELLATION City of Carmel Redevelopment Commission One Circle Square Carmel, IN 46032 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 MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Deborah Vanderveen /DNV ACORD 25 (2001/08) @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 ho[der 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 (2001/08)