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CONSTRUCTION MANAGEMENT AGREEMENT
This Construction Management Agreement (the "Agreement") is executed this day-of. 1
: Septte ember, 2003, by and between The City of Carmel Redevelopment Commission ("CRC")-and-/
i ( CM-).
ARTICLE 1 - 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
:i;:;;..,-.',..• 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 onExhibit 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;
w; (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.
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(f) Prepare and periodically update a schedule for completion of the Project (the "Project
: Schedule")for CSO's approval. The Project Schedule shall coordinate and integrate CM's services,
-4::` .-.__'_: CSO's services, and CRC's responsibilities with anticipated construction schedules, including
=«FA2".�,`"` schedules for performance of work by or for the City of Carmel, Indiana(the"City"),highlighting on the
# updated schedules critical and long-leadtime items.
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r -7;. (g) As CSO progress with the preparation of the schematic, design development, and
c-== construction documents(the"Construction Documents"),CM shall prepare,at intervals established by
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t.= CM and CSO,estimates of the Construction Cost in increasing detail and refinement,using supporting
T• .- =�' : : detail where applicable. Such estimates shall be provided for CSO's review and CRC's approval.CM
.-::; ',3::;: ,:-:.: ,.:. '= : ti . shall advise CRC and CSO if,at any time,it appears that the Construction Cost may exceed the latest
:r ,.,;:`-`�'` Construction Cost estimate. Following CSO's approval of the Construction Documents, CM shall
update and submit the latest estimate of the Construction Cost and the Project Schedule for CSO's
`n : 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.
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(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.
ra' (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:) g:(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 long 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 is
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.
(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, and assist in filing documents
required for the approvals of governmental authorities having jurisdiction over the Project.
k ..F 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:
t== (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
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
CSO and the contractors in a prompt and timely manner.
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- (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, product data and samples; (iii) delivery of products requiring long lead
time and procurement; and(iv)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,establish and implement procedures for:(i) general monitoring of
construction means,methods,techniques,sequences for the contractors'work,and procedures;and
(ii) addressing observed deficiencies.
(i) Monitor the approved estimate of the Construction Cost showing actual costs for
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activities in progress and estimates for uncompleted tasks in comparison with such
approved estimate.
Q) Develop cash flow reports and forecasts for the Project, and advise CSO as to
• variances between actual and budgeted or estimated costs.
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(k) 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.
(I) In collarobation with CSO, develop a list of the items required for submission with
applications by contractors for progress and final payments.
(m) 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.
(n) Review and certify the amounts due the respective contractors, based on
;r -. 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 that are not appropriate or required at the point indicated;(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
- �;:,;o;,•:., that CM has (A) made exhaustive or continuous on-site inspections to check the
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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.
(o) Review the safety programs developed by each of the contractors for purposes of
coordinating all the safety programs; provided that this responsibility for coordination of
safety programs 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,,
(p) 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
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._Y. F,mow:.°-. . deficiencies in the work. 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
y:' "•: fabricated, installed,or completed. CM, in consultation with CSO, may reject work which
does not conform to the requirements of the Contract Documents.
(q) Schedule and coordinate the sequence of construction in accordance with the
Contract Documents and the latest approved Project Schedule.
• (r) 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.
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.
(t) Assist CSO in the review, evaluation, and documentation of claims.
(u) Secure certificates of insurance from the contractors, and forward them to CSO.
(v) In collaboration with CSO, establish and implement procedures for expediting the
processing and approval of shop drawings, product data,samples,and other submittals.
(w) Review all shop drawings,product data,samples,and other submittals from the contractors.
(x) 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'
(y) 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
contractors work on the site number of workers, identification of equipment, work accomplished,
problems encountered, and other similar relevant data as CSO may require.
(z) Maintain at the Project site (i) one record copy of all contracts, drawings, specifications,
addenda, change orders and other modifications, approved shop drawings, product 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 CSO. All of the foregoing shall be
delivered to CRC upon completion of the Project.
(aa) Arrange for the delivery, storage, protection, and security of materials, systems and
equipment that are a part of the Project until such items are incorporated into the Project.
(bb) With CSO and representatives of CRC and the City,observe the contractors'final testing and
• start-up of utilities, operational systems, and equipment.
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(cc) At such time as a contractors 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.
(dd) Coordinate the correction and completion of the work.
(ee) Following issuance of a certificate of substantial completion of the work, or a designated
'T p 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.
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 contractors 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 except for general monitoring by CM,these are the contractors'
responsibility under the Contract Documents; (ii) be responsible for a contractors 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,CSO
and the contractors,which consent shall not be withheld unreasonably.
ARTICLE 3 - ADDITIONAL SERVICES
The "Additional Services" shall consist of the following services:
(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 failui of
performance of either CRC or a contractor under a construction contract.
(c) Providing services in evaluating an extensive number of claims submitted by a
contractor or others in connection with the work.
(d) Providing services in connection with a public hearing, arbitration proceeding or
legal proceeding, except where CM is party thereto.
-- - (e) Providing services relative to future facilities, systems and equipment.
aza- (f) Providing services to investigate existing conditions or facilities, or to provide
measured drawings thereof.
(g) Providing services to verify the accuracy of drawings or other information
furnished by CRC.
(h) Providing services required for or in connection with CRC's selection,
procurement, or installation of furniture, furnishings, and related equipment.
(I) Providing services for tenant improvements.
(j) Providing any other services not otherwise included•in this Agreement.
The Additional Services shall: (a) not be included in the Basic Services, except to the extent
provided on Exhibit B; and (b) be provided only upon receipt by CM of authorization therefor.
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 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) 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.
(i) 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.
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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
`=' •=-.,:. ariy 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)
::::.•:: :'• a, ;. equipment designed, specified, selected, or specially for the Project; (ii) a reasonable
a'_ allowance for the contractors' overhead and profit; and (iii) a reasonable allowance for
contingencies for market conditions at the time of 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•
i -:::::,•;,!'•', 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 this Agreement. If any portion of CM's
compensation is based upon a percentage of the Construction Cost,then,for purpose 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 ofj 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
,`,'=i•••• 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.
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(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
lime;
(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 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 unless otherwise provided on Exhibit B. 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
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accrue to CRC, and CM shall make provisions so that they can be secured.
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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 use 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
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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.
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(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
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directly attributable to termination for which CM is not otherwise compensated.
(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:
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- (a) Claims under 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;
(e) 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
(f) 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.
u The insurance required by this Article shall be written for not less than limits of liability specified
in Exhibit D 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 specified in Exhibit D,
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
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10.1 Direct Personnel Expense. "Direct Personnel Expense"shall mean the salaries of CM's
personnel engaged on the Project and the cost of their contributions and benefits, such as
employment taxes, other statutory benefits, insurance, sick leave, holidays, vacations,
pensions, and other contributions and benefits.
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; and (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,
Reimburseable Expenses shall not include Direct Personnel Expense. Reimburseable
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 C. If the Basic Services have not been completed
within _ months of the date hereof, through no fault of CM, then compensation for any
services rendered during the additional period of time also shall be computed in the manner set
forth on Exhibit C. When compensation is based on a percentage of the Construction Cost,
and any portions of the Project are deleted or otherwise not constructed, compensation for
those portions of the Project shall be payable based on a standard hourly rate set forth on
Exhibit C for time actually spent on such portions of the Project by CM, or its consultants,
agents, or employees.
10.4 Monthly Statements. Except as set forth on Exhibit C, 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; (d) 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 Reimburseable Expenses and the actual out-of-pocket expenses
comprising the Reimburseable 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 on Exhibit C.
' " 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 rebular public
?` y' ,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. Any Monthly Statement rejected or tabled will be considered for approval at
the next regular public 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 a notice
or lien or claim is filed with or against CRC, and the lien or claim relates to money or sums
payable by CRC to CM under this Agreement, 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 witholding such amount of payment until the lien or claim is
released or waived to the reasonable satisfaction of CRC.
10.7 Records. Records of Reimbursable Expenses and expenses pertaining to Additional
Services and services performed on the basis of a multiple of Direct Personnel Expense 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
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 be 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 substantilly to perform in accordance with the terms
and conditions of this Agreement; CM shall have no responsibility for the discovery,-°••x" �- g p ty presence,
‘f• ' 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.
1 1 .6 Notices. Any notice required or permitted to be given by either party to this Agreement shall be in
r< = writing, and shall be deemed to have been given when (a) delivered in person to the other party; (b) sent by facsimile; with electronic confirmation of receipt; or (c) sent by national overnight delivery,service, with
,confirmation of receipt, addressed as follows: to CRC at City of Carmel, Indiana, One Civic Square, Carmel,
:Indiana 46032; Facsimile: 317-844-3498, Attn: Steve Engelking, with a copy to Karl P. Haas, Esq., Wallack
{f° 'Somers&Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile:317-231-9900;and
,to CM atGilliatte General Contractors, Inc. , Facsimile: 317/634-5997 ,Attn: Howard Dugan .
=.; Either party may change its address for notice from time to time by delivering notice to the other party
as provided above.
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I .
y" IN WITNESS WHEREOF, CRC and CMha eexecutedm«Agreement as of the
° date set forth above
THE CITY OF CARMEL
REDE« . •-ME if 0 MISSION
j.By: , re •
® Edmuno ;urePresident
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INDEX TO EXHIBITS
• Exhibit A Project (including description, location, and scope)
Exhibit B Additional Basic Services
Exhibit C Payment of compensation and charges (including computation)
Exhibit D Required insurance coverages
•