HomeMy WebLinkAboutConstruction Management Agreement with Petra Incorporated for New City Hall
GENERAL CONTRACTORS & CONSTRUCTION MANAGEMENT
August I, 2006
RECEIVED
AUG 0 1 2000
City of Meridian
City Attorney
703 Main Street
Meridian, Idaho 83642
A TTN: Ted W. Baird, Deputy City Attomey
City of Meridian
City Clerk Office
Dear Ted,
Enclosed are two signed and notarized originals of the Construction Management
Agreement for the City Hall Project.
As discussed with you it is our understanding that Section 10.2.1 (i) shall be the subject of
a Change Order. To wit, the three year renewal requirement for the Errors and Omissions
Liability Insurance shall be changed to a renewal requirement of two years so as to
correspond to the statute of limitations for the professional services being rendered.
Respectfully yours,
v~
Pat Kershisnik
9056 W. BLACKEAGLE DR. ' BOISE, lD 83709 ' PHONE: (208) 323-4500' FAX: (208) 323-4507
WWW.PETRAINC.NET
RCE.1875
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CONSTRUCTION MANAGEMENT
AGREEMENT
(CONSTRUCTION MANAGEMENT ADVISOR)
BETWEEN
CITY OF MERIDIAN
AN IDAHO MUNICIPAL CORPORATION
AND
PETRA INCORPORATED
AN IDAHO CORPORATION
FOR THE
NEW MERIDIAN CITY HALL
AUGUST 1,2006
TABLE OF CONTENTS
Page
1. RELATIONSHIP OF THE PARTIES 1
1.1 RELA TIONSHIP OF THE PARTIES. 1
1.2 AUTHORIZED REPRESENTATIVE. 2
1.3 CONSTRUCTION MANAGER AS OWNER'S REPRESENTATIVE. 2
2. CONSTRUCTION MANAGER 2
2.1 CONSTRUCTION MANAGER'S REPRESENTATIONS. 2
2.2 COMMUNICA TIONS. 3
2.3 MEETINGS WITH GOVERNMENTAL OFFICIALS. 3
2.4 PROJECT RECORDS. 3
2.5 VALUE ENGINEERING. 4
2.6 GOVERNMENTAL PERMITS. 4
2.7 COMPLIANCE WITH LA WS. 4
2.8 INDEPENDENT CONTRACTOR. 4
2.9 CONSULTANTS. 4
2.10 INDEMNIFICA TION 5
2.11 OUTSIDE COMPENSATION PROHIBITED. 5
3. OWNER 5
3.1 OWNER'S OBJECTIVES. 5
3.2 OWNER'S DUTIES. 5
3.3 OWNER'S ARCHITECT. 6
3.4 CONTRACTOR. 7
4. SCOPE OF SERVICES 7
4.1 IN GENERAL. 7
4.2 DEVELOPMENT STRATEGIES PHASE. 7
4.3 SITE PREPARATION PHASE. 7
4.4 PRELIMINARY DESIGN PHASE. 8
4.5 CONSTRUCTION DOCUMENTS PHASE 9
4.6 BIDDING PHASE. 10
4.7 CONSTRUCTION PHASE. 11
5. SCHEDULE. 13
5.1 SCHEDULE OF PERFORMANCE. 13
5.2 DELA YS. 13
6. COMPENSATION 13
6.1 CONSTRUCTION MANAGER'S FEE. 13
6.2 REIMBURSABLE EXPENSES. 14
6.3 PAYMENTS. 15
7. CHANGES 16
8. CLAIMS. 16
TABLE OF CONTENTS - I
9.
10.
8.1 CLAIMS.
8.2 MEDIATION.
SUSPENSION AND TERMINATION
9.1 SUSPENSION BY OWNER FOR CONVENIENCE.
9.2 TERMINATION BY OWNER FOR CONVENIENCE.
9.3 TERMINATION BY OWNER FOR CAUSE.
9.4 TERMINATION BY CONSTRUCTION MANAGER.
GENERAL PROVISIONS
10.1 OWNERSHIP OF WORK PRODUCT.
10.2 INSURANCE.
10.3 PAYMENT AND PERFORMANCE BONDS.
10.4 RECITALS AND EXHIBITS.
10.5 COUNTERPARTS; FACSIMILE TRANSMISSION.
10.6 ATTORNEYS' FEES.
10.7 GOVERNING LAW.
10.8 VENUE.
10.9 GRAMMATICAL USAGE.
10.10 BINDING EFFECT.
10.11 HEADINGS.
10.12 ADDITIONAL ACTS.
10.13 TIME OF ESSENCE.
10.14 NOTICE.
10.15 RIGHTS AND REMEDIES CUMULATIVE.
10.16 THIRD-PARTY BENEFICIARIES.
10.17 INTEGRATION; WAIVERS.
10.18 SEVERABILITY.
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TABLE OF CONTENTS - II
CONSTRUCTION MANAGEMENT AGREEMENT
(Construction Manager Advisor)
THIS CONSTRUCTION MANAGEMENT AGREEMENT (this "Agreement") is made
effective the 1 st day of August, 2006, by and between CITY OF MERIDIAN, an Idaho municipal
corporation ("Owner"), and PETRA INCORORA TED, an Idaho corporation ("Construction
Manager").
RECITALS
A. Owner is under contract to purchase that certain two-acre parcel of land located at
27 E. Broadway, Meridian, Idaho (the "Site").
B. Owner desires to abate and demolish the eXlstmg structures on the Site and
develop a new city hall facility thereon consisting of a four story structure with approximately
80,000 square feet of standard Class A office space and related improvements with surface
parking (the "Proiect").
C. Construction Manager has represented to Owner that it is has the skills,
qualifications, and experience to provide professional construction management for the Project
on behalf of Owner.
D. Owner desires to retain Construction Manager, and Construction Manager desires
to be retained by Owner, for professional construction management services for the Project on
Owner's behalf.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements stated herein, and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, Owner and Construction Manager agree as follows:
1. RELATIONSHIP OF THE PARTIES
1.1 Relationship of the Parties.
Construction Manager acknowledges and accepts the relationship of trust and
confidence established with Owner by this Agreement and that this relationship is a material
consideration for Owner in entering into this Agreement. Accordingly, Construction Manager
shall, at all times, act in a manner consistent with this relationship. Construction Manager
further covenants that Construction Manager will perform its services under this Agreement, in
the exercise of ordinary and reasonable care and with the same degree of professional skill,
diligence and judgment as is customary among construction managers of similar reputation
performing work for projects of a size, scope and complexity similar to the Project. Construction
Manager shall, at all times, further the interest of Owner through efficient business
administration and management.
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1.2 Authorized Representative.
Owner and Construction Manager shall designate a representative who shall be
authorized to act on that parties' behalf with respect to the Project. Each party's representative
shall render decisions in a timely manner in order to avoid unreasonable delay in the progress of
the Project. Each party may rely upon the directions and decisions of such representatives as the
directions and decisions of the other party. Neither Owner nor Construction Manager shall
change its authorized representative without five (5) days prior written notice to the other party.
1.2.1 Owner's authorized representative shall be:
To be determined by Owner. Upon Owner's selection of its
authorized representative, Owner will provide Architect the name
and contact information for such representative.
1.2.2 Construction Manager's authorized representative shall be:
Gene R. Bennett, Project Manager and
Wesley Bettis, Jr., Project Engineer
PETRA INCORPORATED
9056 W. Blackeagle Drive
Boise, Idaho 83709
Telephone: 208-323-4500
Facsimile: 208-323-4507
Mobile: 208-860-7531 (Bennett)
Mobile: 208-860-7531 (Bettis)
Email: gbennett@petrainc.net
Email: wbettis@petrainc.net
1.3 Construction Manager as Owner's Representative.
Construction Manager shall be a representative of Owner during the Project.
Construction Manager shall have authority to act on behalf of Owner only to the extent provided
in this Agreement, unless otherwise set forth in writing.
2. Construction Manager
2.1 Construction Manager's Representations.
Construction Manager makes the following express representations and
warranties to Owner, which shall survive the execution and delivery of this Agreement:
2.1.1 Construction Manager is or will be professionally qualified to
provide construction management services for the Project and is properly licensed to practice
construction management services to Owner by all public entities having jurisdiction over
Construction Manager and the Project;
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2.1.2 Construction Manager has, or will as part of its services under
this Agreement, become familiar with and examine the Site, including, but not limited to, the
existing terrain, structures, landscaping and the local conditions under which the Proj ect is to be
designed, constructed, and operated, and correlate its observations with the Project's
requirements;
2.1.3 Construction Manager has the professional knowledge, skills,
experience, education and staffing to manage and coordinate the design and construction of the
Project. The individual employees of Construction Manager that will render services pursuant
to this Agreement are knowledgeable and experienced in the disciplines required for this Project;
2.1.4 Construction Manager shall prepare all documents and provide
all services required under this Agreement in such a manner that increases in Project costs
resulting from Construction Manager's errors or omissions do not exceed one percent (1 %) of
the total construction price of the Project; and
2.1.5 Construction Manager assumes full responsibility to Owner for
its own improper acts and/or omissions and those employed or retained by Construction Manager
in connection with the Project (excluding intentional acts), but not for acts and omissions
expressly directed by Owner.
2.2 Communications.
Construction Manager shall endeavor to keep Owner fully infonned regarding the
progress of the Project so Owner can have meaningful review and involvement in the Project.
Without limiting the ge~era1ity of the foregoing sentence, Construction Manager shall, as a
matter of course, promptly provide Owner with copies of all documents relating to design and
construction management and coordination, meeting notes and memorandum and any other
information related to the Project for Owner's review and input. Construction Manager shall
notify Owner of any decisions that are required to be made by Owner, and any deadlines
pertaining thereto. Construction Manager shall consult with and advise Owner with respect to
any such decisions.
2.3 Meetings with Governmental Officials.
Construction Manager agrees to provide Owner with reasonable notice of all
formal public and non-public meetings with government officials regarding the Project. Owner
shall be entitled to attend any formal public or non-public meeting with governmental officials
regarding the Project. Construction Manager shall document all meetings with governmental
officials related to the Project and any verbal or written interpretations related to the Project
provided by any governmental officials.
2.4 Project Records.
All records relating to the Project in Construction Manager's possession (the
'"Proiect Records") shall be made available to Owner for inspection and copying at a reasonable
time and place upon the written request of Owner. The Project Records shall include, but not be
CONSTRUCTION MANAGEMENT AGREEMENT (CONSTRUCTION MANAGEMENT ADVISOR)
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limited to, all plans, specifications, submittals, correspondence, minutes, memoranda, receipts,
timesheets, electronic recordings and other writings or things that document any aspect of the
design and construction management and coordination of the Project. Construction Manager
shall maintain the Project Records for six (6) years after substantial completion of Project or for
any longer period required by law.
2.5 Value Engineering.
Construction Manager shall value engineer the Project to maximize costs savings
to Owner through discounts, value engineering and other actions consistent with good design and
building practices for a project of the type contemplated by Owner.
2.6 Governmental Permits.
Construction Manager shall, with the assistance of Owner and Architect, prepare
and file all documents necessary to obtain the approvals of governmental authorities having
jurisdiction over the Project, including, but not limited to, building and occupancy permits.
2.7 Compliance with Laws.
Construction Manager shall perform all of Construction Manager's services in
compliance with all applicable laws, ordinances, rules, regulations or orders of any public
authority having jurisdiction over the Project, any applicable permits and any recorded
covenants, conditions and restrictions affecting the Site.
2.8 Independent Contractor.
Construction Manager acknowledges that it is an independent contractor and not
an employee or agent of Owner. As an independent contractor, Construction Manager shall be
and remain responsible to Owner for all its negligent acts or omissions in connection with its
duties and services under this Agreement that result in damage or injury to persons or property.
Construction Manager shall indemnify and hold harmless Owner against all claims or liabilities
that are asserted, incurred or recovered against Owner related to employer liabilities that arise
from Construction Manager's employment or retention of any person or entity. Owner shall
have no control over the maMer or method by which Construction Manager meets Construction
Manager's obligations under this Agreement; provided that Construction Manager's services
shall be perfonned in a competent and efficient manner this is in compliance with this
Agreement. Nothing in this Agreement shan be construed to mean that Owner employs or is
responsible for compensating any consultant of Construction Manager.
2.9 Consultants.
Prior to retaining or engaging any consultant to provide services pursuant to this
Agreement, Construction Manager shall submit for Owner's approval a written statement listing
(1) a description of the services to be provided by said consultant (2) a brief description of said
consultant's qualifications to render the identified services, and (3) a disclosure of any
ownership, controlling interest or affiliation between Construction Manager and said consultant.
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Owner shall bear no responsibility for reimbursing Construction Manager for services of any
consultant retained or engaged by Construction Manager unless Construction Manager first
complies with this Section.
2.10 Indemnification
To the fullest extent pern1itted by law, Construction Manager shall indemnify,
defend and hold hannless Owner and its officers, directors, agents and employees from and
against claims, damages, losses and expenses, including but not limited to attorney's fees, arising
out of or resulting from performance of Construction Manager's duties and responsibilities under
this Agreement, but only to the extent caused by the negligent acts or omissions of Construction
Manager, its employees, agents or anyone for whose acts they may be liable, regardless of
whether or not such claim, damage, loss or expense is caused in party by a party indemnified
hereunder.
2.11 Outside Compensation Prohibited.
Except with Owner's knowledge and consent, Construction Manager shall not
engage in any activity or accept any employment, interest or contribution that would reasonably
appear to compromise Construction Manager's professional judgment with respect to the Project
or the relationship of trust between Owner and Construction Manager established herein;
provided, however, nothing in this Section shall be deemed to limit Construction Manager's
ability to provide services for an competitor of Owner.
3. OWNER
3.1 Owner's Objectives.
Owner's objective for the Project is to develop a new cost efficient city hall
facility and public plaza on the Site.
3.2 Owner's Duties.
3.2.1 Owner shall, at its expense, furnish Construction Manager with
documents in its possession concerning the Site, which documents shall include a legal
description, environmental risk evaluation, site survey and preliminary title report.
3.2.2 Owner shall provide Construction Manager with Owner's
preliminary planning and programming information regarding the Project, including, but, not
limited to, Owner's purposes, concepts, desires and any design, construction, scheduling,
budgetary or operational needs, restrictions or requirements, as the same may be amended from
time to time ("Owner's Criteria")_
3.2.3 Owner shall timely review documents provided by or through
Construction Manager and timely render its direction, decision, consent or approval on matters
identified by Construction Manager for Owner's direction, decision, consent or approval.
CONSTRUCTION MANAGEMENT AGREEMENT (CONSTRUCTION MANAGEMENT ADVISOR)
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3.2.4
Construction Manager;
Owner shall timely review documents provided by or through
3.2.5 Owner shall provide for all required testing or inspections of the
Work as may be mandated by law, the Construction Documents or the Construction Contracts;
3.2.6 If Owner learns of any failure to comply with the Construction
Contract by Contractor, or of any errors, omissions, or inconsistencies in the services of
Construction Manager, and in the further event that Construction Manager does not have notice
of the same, Owner shall inform Construction Manager;
3.2.7 Owner shall afford Construction Manager access to the Site and
to the Work as may be reasonably necessary for Construction Manager to properly perform its
services under this Agreement;
3.2.8 Owner's review, direction, decision, approval or consent of any
document provided or matter identified by or through Construction Manager shall be solely for
the purpose of determining whether such document or matter is generally consistent with
Owner's Criteria. No review of such documents shall relieve Construction Manager of its
responsibility for the accuracy, adequacy, fitness, suitability, or coordination of its services or
work product.
3.2.9 Construction Manager shall be entitled to rely upon services and
information provided by or through Owner only to the extent that a reasonably prudent
Construction Manager would so rely on such services and information. Construction Manager
shall promptly notify Owner in writing if Construction Manager becomes aware of any errors,
omissions or inconsistencies in such services or information.
3.3 Owner's Architect.
Owner has retained LCA Architects, P .A., an Idaho professional corporation
("Architect") to provide professional architectural services for the Project. Architect's
authorized representative is:
Steve Simmons, President
LOMBARD-CONRAD ARCHITECTS, P .A.
1221 Shoreline Lane
Boise, Idaho 83702
Telephone: 208-345-6677
Facsimile: 208-344-9002
Mobile: 208-830-4122
Email: ssimmonsl@1carch.com
Construction Manager hereby acknowledges that it has received, reviewed, and studied the
agreement form that Owner intends to use with Architect (the "Architectural Agreement"), and
the same is herein incorporated by reference. Construction Manager shall consult and coordinate
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with Architect as needed to fulfill its duties hereunder, and shall assist Architect as need for
Architect to fulfill its duties to Owner under the Architectural Agreement.
3.4 Contractor.
Construction Manager understands that Owner plans to retain multiple prime
contractors (the "Contractors") to provide construction labor, services, materials and equipment
for the Project (the "Work"). The term "Contractor" means all prime contractors retained by
Owner to perfonn Work, but not the prime contractor's subcontractors, laborers and material
suppliers.
4. SCOPE OF SERVICES
4.1 In General.
Owner has retained Construction Manager to help it achieve the objectives set
forth in Section 3.1 above by managing and coordinating the design and construction of the
Project on behalf of Owner. Therefore, the general scope of Construction Manager's
responsibilities is to do all things, or, when appropriate, require Architect and each Contractor to
do all things necessary, appropriate or convenient to achieve the end result desired by Owner,
including, but not limited to, those tasks set forth in this Article 4. The tasks set forth in this
Article 4 are not intended to be an exhaustive list of the tasks required to achieve the result
desired by Owner. The general scope of Construction Manager's responsibilities and shall
include all other tasks indicated or implied in this Agreement and the implementing plans
contemplated herein.
4.2 Development Strategies Phase.
Construction Manager shall carefully examine Owner's Criteria and consult with
Owner and Architect in detail about the same in detail. Based on its review and consultations,
and with the assistance of Architect, Construction Manager shall prepare and submit to Owner a
written report detailing its understanding of Owner's Criteria and identifying any design,
construction, scheduling, budgetary, operational or other problems or recommendations that may
result from Owner's Criteria. The written report shall also include proposed solutions addressing
each problem identified, alternative strategies for the cost effective design and construction of
the Project, and alternative strategies for the cost effective future expansion of the Project.
Construction Manager, with Architect's assistance, shall develop a preliminary project schedule
for the design and construction of the Project.
4.3 Site Preparation Phase.
Construction Manager shall also prepare and submit to Owner a plan for the
demolition of the existing improvements on the Site and the preparation of the Site for
construction activities. Upon Owner's approval of the plan and Owner's notice to proceed,
Construction Manager shall proceed with bidding of the demolition Work in accordance with
Section 4.6 below. Upon Owner's approval of the lowest bid and notice to the demolition
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Contractor to proceed, Construction Manager shall proceed with the management of the
demolition work in accordance with Section 4.7 below.
4.4 Preliminary Design Phase.
4.4.1 After reviewing Construction Manager's written report and
Architect's written report with Owner and Architect, and reaching agreement upon proposed
alternatives and solutions, Construction Manager shall, within the time frames set forth in the
preliminary schedule developed in Section 4.2 above and in cooperation with Architect's efforts,
prepare and submit to Owner for approval the following:
(a) A plan for the management of the design and construction of the
Project (the "Construction Management Plan"), which shall include (i) a Project
organizational chart, (ii) staffing recommendations for Owner, Architect and
Construction Manager, along with an explanation of the roles, responsibilities,
and authority of each staff member from each of the three entities, (iii) description
of the various bid packages recommended for the efficient and cost effective
bidding of the Project, including the procurement of those "general conditions"
items that may be efficiently and lawfully procured by Construction Manager
directly; (iv) a description of the basic methods and procedures for coordination
between Contractors; and (v) a system for claims avoidance on the Project
consistent with fixed price construction contracts. Construction Manager shall
not be responsible for the failure of Owner and/or Architect to adequately staff the
Project in accordance with the approved Construction Management Plan.
(b).A comprehensive master Project schedule (the "Proiect Schedule")
that specifies the proposed starting and finishing dates for each task required to
complete the demolition of the existing site improvements and the design,
construction and occupancy of the Project. The Project Schedule shall be divided
into separate tasks and phases as desired by Owner and shall include the tasks of
Owner, Architect, Construction Manager and each Contractor. The Project
Schedule shall provide reasonable time periods for Owner reviews and approvals
where appropriate.
(c) Based on the Architect's preliminary designs and specifications, a
preliminary price estimate for the design and construction of the Project (the
"Preliminary Price Estimate"), using area, volume or similar conceptual
estimating techniques, which shall include all expenditures that will be required of
Owner and a reasonable allowance for Owner's contingency.
(d) A pIan for the efficient and effective communication of information
between Owner, Architect, Construction Manager and each Contractor (the
"Communications Plan"). The Communications PIan shall include payment
procedures, be compatible with the accounting practices of Owner and shall
provide reports and documents in the format and in the frequency required by
Owner.
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(e) A plan for managing the quality each Contractor's Work (the "Quality
Management Plan"); and
(f) Construction Manager understands that the Owner's maximum price
for the construction of the Project is Twelve Million Two Hundred Thousand and
Noll OOths Dollars ($12,200,000.00) (the "Project Budget").
4.4.2 Owner shall timely review and approve or disapprove the
documents set forth above. If Owner disapproves any document, Owner shall set forth the
reasons therefor in writing. Construction Manager shall then revise the disapproved document as
required by the reasons for disapproval and resubmit the revised document to Owner for
approval, which approval shall not be unreasonably witlilield or delayed. This process shall
repeat until Owner approves the documents set forth above.
4.4.3 If the Preliminary Price Estimate developed pursuant to Section
4.4.1(c) exceeds the Project Budget provided by Owner to Construction Manager in Section
4.4.1(f), Owner may require Construction Manager, with no increase in the not-to-exceed
allowance for preconstruction services set forth in Section 6.2.2(a) below, to (i) consult with
Owner and Architect to identify cost saving measures and (ii) assist Architect in revising the
Preliminary Design to reflect approved cost savings measures, and (iii) revise the Preliminary
Cost Estimate to reflect the anticipated savings from approved cost savings measures, as
necessary to bring the Preliminary Cost Estimate below the Project Budget. Absent clear and
convincing evidence of gross negligence, and provided Construction Manager completes its
obligations under this Section, Construction Manager shall not be financially responsible to
Owner for the failure ofthe Preliminary Cost Estimate to be within the Project Budget.
4.5 Construction Documents Phase
During the Construction Documents phase, Construction Manager shall complete
the followings tasks:
4.5.1 Make recommendations for reV1SlOn to the Construction
Management Plan and submit them to Owner for review. Revise the Construction Management
PIan to include revisions approved by Owner.
4.5.2 Monitor compliance with the Project Schedule, which shall include
periodical progress reports and immediate reports of material deviations from the Project
Schedule for the design phase.
4.5.3 Review the Construction Documents at appropriate intervals
during their preparation to make recommendations to Owner and Architect as their
constructability, cost-effectiveness, clarity, consistency and coordination. This review shall
include peer reviews by electrical, mechanical, structural and architectural professionals for up to
two (2) work days per discipline.
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4.5.4 Construction Manager shall, with the assistance of Architect,
prepare documents necessary for the clear separation of the Work into the various bid packages
as set forth in the Construction Management Plan.
4.5.5 Conduct such Project meetings as required for the timely
completion of the Project;
4.5.6 Keep and distribute minutes as required m Construction
Management Plan and Communications Plan;
4.5.7 Coordinate transmittal of documents to regulatory agencIes and
advise Owner of potential solutions to problems encountered;
4.5.8 Prepare value analysis studies on major construction components
as requested by Owner.
4.5.9 As soon as practical after Architect's submission of the
Construction Documents and in accordance with the Project Schedule, Construction Manager
shall submit to Owner a final written estimate of the anticipated price for constructing the Project
(the "Final Cost Estimate"). The Final Cost Estimate shall be detailed and shall be divided into
bid packages and work categories. If the Final Cost Estimate exceeds the Maximum Price,
Owner may require Construction Manager, with no increase in the not-to-exceed allowance for
preconstruction services set forth in Section 6.2.2(a) below, to (i) consult with Owner and
Architect to identify cost savings measures, (ii) assist Architect in revising the Construction
Documents to reflect approved cost savings measures, and (iii) revise the Final Cost Estimate to
reflect the anticipated sa~ings from approved cost savings measures, as necessary to bring the
Final Cost Estimate below the Maximum Price. Absent clear and convincing evidence of gross
negligence, and provided Construction Manager completes its obligations under this Section,
Construction Manager shall not be financially responsible to Owner for the failure of the Final
Cost Estimate to be within the Maximum Price.
4.6 Bidding Phase.
4.6.1 Construction Manager shall assist Owner in preparing bid
packages contemplated by the Construction Management Plan, preparing and placing notices and
advertisements to solicit bids, delivering bid documents to bidders, tracking bid documents and
bidders, answering bidders questions; reviewing addenda, holding a pre-bid conference if
required, reviewing bids or proposals for construction, and determining the selected bidders.
4.6.2 If the lowest bids from qualified bidders exceeds the Maximum
Price, Owner may require Construction Manager, with no increase in the not-to-exceed
allowance for preconstruction services set forth in Section 6.2.2(a) below, to (i) consult with
Owner and Architect to identify cost savings measures, (ii) assist Architect in revising the
Construction Documents to reflect approved cost savings measures, and (iii) rebid the Work, as
necessary to bring the Final Cost Estimate below the Maximum Price. Absent clear and
convincing evidence of gross negligence, and provided Construction Manager completes its
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obligations under this Section, Construction Manager shall not be financially responsible for the
failure of the Project to bid within the Maximum Price.
4.6.3 As appropriate, Construction Manager shall bid or select the
providers of "general conditions" items designated for procurement by the Construction Manager
under the Construction Management PIan.
4.7 Construction Phase.
During construction of the Project, from commencement of construction activities
until final payment to all Contractors, Construction Manager shall have and perform the
following duties, obligations, and responsibilities:
4.7.1 Construction Manager shall have and perform those duties,
obligations and responsibilities set forth in the construction agreements between Owner and each
Contractor (the "Construction Contracts"). Construction Manager hereby acknowledges that it
has received, reviewed, and studied the forms that Owner intends to use for the Construction
Contracts, and the same is herein incorporated by reference. Construction Manager
acknowledges that Owner may modify the Construction Contracts, and that such modified
Construction Contracts shall be applicable to this Agreement; provided, however, to the extent
such modified Construction Contracts are materially are inconsistent with the terms of this
Agreement, this Agreement shall control as between Owner and Construction Manager.
4.7.2 Construction Manager shall, as contemplated herein and in the
Construction Contract, but not otherwise, act on behalf and be the agent of Owner throughout
construction of the Proje~t. Instruction, directions, and other appropriate communications from
Owner to Architect and each Contractor shall be given by Construction Manager.
4.7.3 Construction Manager shall monitor, update, implement, make
recommendations on, and report to Owner on compliance with, the Construction Management
Plan, Project Schedule and Project Budget.
4.7.4 Construction Manager shall conduct Project meetings as required
for the timely completion of the Project in accordance with the Project Schedule, and shall keep
and distribute minutes as required in the Construction Management PIan and Communications
Plan.
4.7.5 Constmction Manager shall verify that the required permits, bonds,
and insurance have been obtained.
4.7.6 Construction Manager shall require each Contractor to prepare and
submit to Constmction Manager for general review a safety program and a quality assurance
plan in conformance with the Contract Documents and the Quality Management Plan.
Construction Manager shall promptly report to Owner regarding whether or not the safety
program and quality assurance plan proposed by each Contractor conforms to the Contract
Documents the Quality Management Plan. Construction Manager shall review each safety
program and each quality assurance plan to determine that the programs and plans of the various
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Contractors performing Work at the Site, as submitted, provide for coordination among the
Contractors for the portions of the Work each will perform. Construction Manager shall monitor
each Contractor's compliance with the safety program and quality assurance plan and report to
Owner promptly concerning any deviation therefrom along with recommendations for
correction. Construction Manager shall be responsible for coordinating the Contractors for each
portion ofthe Work.
4.7.7 Upon receipt, Construction Manager shall carefully review and
examine each Contractor's schedule of values ("Schedule of Values"), together with any
supporting documentation or data that Owner, Construction Manager or Architect may require
from the Contractor. The purpose of such review and examination shall be to protect Owner
from an unbalanced Schedule of Values that allocates greater value to certain elements of the
Work than is indicated by such supporting documentation or data or than is reasonable under the
circumstances. If the Schedule of Values is not found to be appropriate, or if the supporting
documentation or data is deemed to be inadequate, and unless Owner directs Construction
Manager to the contrary in writing, the Schedule of Values shall be returned to the Contractor for
revision or supporting documentation or data. After making such examination, if the Schedule of
Values is found to be appropriate as submitted, or if necessary, as revised, Construction Manager
shall sign the Schedule of Values thereby indicating its informed belief that the Schedule of
Values constitutes a reasonable, balanced basis for payment of the Contract Price to the
Contractor. Construction Manager shall not sign such Schedule of Values in the absence of such
belief unless directed to do so, in writing, by Owner.
4.7.8 Construction Manager shall promptly examine, study, approve or
otherwise respond to each Contractor's shop drawings and other submittals. Construction
Manager's approval of such submittal shall constitute its representation to Owner that such
submittal is in general conformance with the Construction Documents, Construction
Management Plan and Project Schedule. After Construction Manager's review, Construction
Manager shall promptly forward such submittals to Architect, with Construction Manager's
comments attached, for review, approval, rejection or other response. Construction Manager
shall promptly forward information or actions received from Architect to the appropriate
Contractor.
4.7.9 Construction Manager shall carefully observe the Work of each
Contractor whenever and wherever necessary, and shall, at a minimum, observe Work at the
Project site no less frequently than each standard workday. The purpose of such observations
shall be to determine the quality and quantity of the Work in comparison with the requirements
of the Construction Contract. In making such observations, Construction Manager shall protect
Owner from continuing deficient or defective Work, from continuing unexcused delays in the
schedule, and from overpayment to a Contractor. Following each observation, Construction
Manager shall submit a written report of such observation to Owner and Architect together with
any appropriate comments or recommendations.
4.7.10 Construction Manager shall reject, in wntmg, any Work of a
Contractor that is not in compliance with the Construction Documents unless otherwise directed
by Owner in writing.
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4.7.11 Construction Manager shall procure, for reimbursement by Owner
pursuant to Section 6.2.3 below, those "general conditions" items identified for procurement by
the Construction Manager in the Construction Management Plan.
5. SCHEDULE.
5.1 Schedule of Performance.
Construction Manager shall commence the performance of its obligations under
this Agreement upon Owner's notice to proceed and shall diligently and expeditiously continue
its performance in accordance with the Project Schedule until all services hereunder have been
fully completed. The time limits established by the Project Schedule are of the essence and shall
not be exceeded by Construction Manager without Owner's prior written consent or as permitted
in Section 5.2 below.
5.2 Delays.
If Construction Manager is delayed at any time in progress of its services under
this Agreement by an act or neglect of Owner, or an employee of Owner, or of a separate
contractor employed by Owner, or by changes in its scope of work, unavoidable casualties, or
other causes beyond Construction Manager's reasonable control or by other causes which Owner
determines may justify the delay, then the Project Schedule shall be equitably adjusted for such
reasonable time as Owner may determine to be appropriate for the extent of the delay.
Construction Manager's sole right and remedy against Owner shall be an extension of time and
reimbursable expenses pursuant to Section 6.2 unless such delay is caused by acts of Owner
constituting active interfe~ence with Construction Manager's performance, and only to the extent
such acts continue after Construction Manager furnishes Owner with written notice of such
interference. In the event of delay from active interference by Owner, Construction Manager's
sole right and remedy shall an equitable adjustment in its compensation pursuant to Article 7
below.
6. COMPENSATION
6.1 Construction Manager's Fee.
As full compensation for Construction Manager's performance under this
Agreement, Owner agrees to pay Construction Manager a fee of Five Hundred Seventy-four
Thousand and NollOOths Dollars ($574,000.00) (the "Construction Manager's Fee") plus
reimbursable expenses set forth in Section 6.2 below. For purposes of progress payments,
Construction Manager's compensation shall be divided into the following phases:
Development Strategies Phase
Site Preparation Phase
Preliminary Design Phase
Construction Documents Phase
Bidding Phase
Construction Phase
Five Percent
Five Percent
Ten Percent
Twenty Percent
Five Percent
Sixty Percent
( 5%)
( 5%)
( 5%)
(20%)
( 5%)
(60%)
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The Construction Manager's Fee includes Construction Manager's overhead, profit, home office
expenses, transportation expenses and field office supplies and expenses, such as
communications (i.e., telephones, cell phones, facsimiles) and photocopies. The Construction
Manager's Fee also includes the necessary and appropriate principal level management of the
Project, the efforts of the Project Manager (identified in Section 6.2 below) during the
construction phase, and clerical support.
6.2 Reimbursable Expenses.
6.2.1 Professional Staff Reimbursables. Owner shall reimburse
Construction Manager for the direct personal expense (i.e., payroll plus related taxes, insurance
and customary benefits) of certain professional staff when actively working in furtherance ofthe
Project. Those certain professional staff and their rates are identified below:
Position
Project Manager
Project Engineer
Project Superintendent
Project Foreman
Name
Gene R. Bennett
Wesley Bettis, Jr.
Gene Landon
Brian Weinaught
Rate Per Hour
$63.50
$45.90
$40.40
$22.90
6.2.2 If any of the professional staff identified above leaves the
employment of Construction Manager or otherwise becomes unavailable, the Construction
Manager shall promptly submit the name, rate and qualifications of a suitable replacement to
Owner for approval, which approval shall not be unreasonably withheld. Construction Manager
guarantees that the efforts of the reimbursable professional staff will not exceed the amounts set
forth in subsections (a) b(;llow for preconstruction services (i.e., the services specifically set forth
in Sections 4.2 to 4.6 above) and subsection (b) below for construction services (i.e., the services
specifically set forth in Section 4.7 above). If the size (i.e., 80,000 square feet), complexity (i.e.,
four story, surface parking), Owner's schedule (i.e., six months Preconstruction Phase Services,
eighteen months Construction Phase Services), Project Budget (i.e., $12,200,000.00),
procurement method (i.e., no long lead time and/or expedited materials), and/or bidding process
(i.e., two bid packages, no rebids) materially changes, Owner and Construction Manager agree
that the not-to-exceed limits set forth below shall be adjusted up or down accordingly based upon
the actual number of hours worked in furtherance of the change by the Project Manager, Project
Engineer, Project Superintendent, and Project Foreman.
(a) Preconstruction Phase Services
An amount not-to-exceed Twenty-nine Thousand Eight Hundred
Eighteen and No/100ths Dollars ($29.818.00), which is based on
the following expected efforts over a six (6) month period for
preconstruction services:
Position
Project Manager
Project Engineer
Months
6
6
Hrs/Mo.
32
64
Ratelhour
$63.50
$45.90
Total
Cost.
$12,192
$17.626
$29,818
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(b) Construction Phase Services
An amount not-to-exceed Two Hundred Forty-nine Thousand Nine
Hundred Ninety-four and Noll OOths Dollars ($249,994.00), which
is based on the following expected efforts over a eighteen (18)
month period for construction services:
Position
Project Manager
Project Engineer
Project Superintendent
Project Foreman
Months
18
18
18
18
Hrs/Mo.
32
64
173
173
Ratelhour
$63.50
$45.90
$40.40
$22.90
Total
Cost .
In CMF
$ 52,877
$125,806
$ 71.311
$249,994
6.2.3 "General Conditions" Reimbursables. Owner shall reimburse
Construction Manager for the "general conditions" items designated for procurement by the
Construction Manager under the Construction Management Plan at the cost thereof incurred by
the Construction Manager.
6.2.4 Records of Reimbursable Expenses. Construction Manager
shall maintain full and detailed records of all reimbursable expenses and exercise such controls
as may be necessary for proper financial management and control of the Project. Such records
shall be made available for inspection by Owner during normal business upon three (3) days
notice. Construction Manager shall maintain such records for a period of five (5) years from the
completion or termination of Construction Manager's services under this Agreement.
6.3 Payments.
6.3.1 As a condition precedent for any payment due under this
Article 0, Construction Manager shall submit to Owner a monthly application for payment no
later than the fifth day of the calendar month for services properly rendered and reimbursable
expenses properly incurred during the preceding month. The Construction Manager's Fee
earned shall be calculated as a percentage of each phase completed. Reimbursable expenses
shall be separately itemized and supported by invoices, timesheets or other data substantiating
Construction Manager's right to payment as Owner may require. Hourly services shall be
described with reasonable particularity each service rendered, the date thereof, the time
expended, and the persons rendering such service. Each invoice shall be signed by Construction
Manager, which signature shall constitute Construction Manager's representation to Owner that
(i) the services indicated in the invoice have reached the level stated and have been properly and
timely performed, (ii) the reimbursable expenses included in the invoice have been reasonably
incurred in accordance with this Agreement or otherwise approved by Owner in writing, (iii) all
obligations of Construction Manager covered by prior invoices have been paid in full, and (iv)
the amount requested is currently due and owing, there being no reason known to Construction
Manager that payment or any portion thereof should be withheld. Submission of Construction
Manager's invoice for final payment shall further constitute Construction Manager's
representation to Owner that, upon receipt by Owner of the amount invoiced, all obligations of
Construction Manager to others, including its consultants, incurred in connection with the
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Project, will be paid in ful1. During the construction phase, Construction Manager shall present
its statement of services to Owner concurrently with the approved Certificates for Payment,
when possible.
6.3.2 Owner shall pay Construction Manager sums properly invoiced
within 30 days of Owner's receipt of such invoice. If payment is not made within thirty (30)
days, the outstanding balance shall bear interest at the rate of .75% per month until paid.
7. CHANGES
Changes in Construction Manager's services (not involving a cardinal change to
the scope of the services) may be accomplished after the execution of this Agreement upon
Owner's request or if Construction Manager's services are affected by any of the following:
(a) A change in the instructions or approvals given by Owner that
necessitate revisions to previously prepared documents or the reperformance of
previously performed services;
(b) Significant change to the Project, including, but not limited to size,
quality, complexity, Owner's schedule, budget or procurement method;
(c) Construction Manager performs additional services because of
active Owner interference pursuant to Section 5.2 above, or
(d) Preparation for and attendance at a dispute resolution proceeding
or a legal proceeding except where Construction Manager is a party thereto or
where the Construction Manager's performance is an issue in such proceeding.
Except as otherwise set forth in this Agreement, if any of the above circumstances materially
affect Construction Manager's services, Construction Manager shall be entitled to an equitable
adjustment in the Schedule of Performance, the Construction Manager's Fee and/or the not-to-
exceed limits for reimbursable expenses, as mutually agreed by Owner and Construction
Manager. Prior to providing any additional services, Construction Manager shall notify Owner
of the proposed change in services and receive Owner's approval for the change. Except for a
change due to the fault of Construction Manager, a change shall entitle Construction Manager to
an equitable adjustment in the Schedule of Performance, Construction Manager's Fee and/or the
not-to-exceed limits for reimbursable expenses as mutually agreed by Owner and Construction
Manager.
8. CLAIMS.
8.1 Claims.
In the event that any claim, dispute or other matter in question between Owner
and Construction Manager arising out of or related to this Agreement or the breach hereof (a
"Claim"), Owner and Construction Manager shall first endeavor to resolve the Claim through
direct discussions. Claims must be initiated by written notice. The responsibility to substantiate
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Claims rests with the party making the Claim. Except as otherwise agreed in writing,
Construction Manager shall continue to diligently perform its obligations under this Agreement
and Owner shall continue to make payments in accordance with this Agreement pending the final
resolution of any Claim. Construction Manager acknowledges that Owner's ability to evaluate a
Claim depends in large part on Owner being able to timely review the circumstances of the
Claim. Therefore, Construction Manager agrees that it shall submit a Claim to Owner by written
notice no later than twenty-one (21) calendar days after the event or the first appearance of the
circumstances giving rise to the Claim, and that such written notice shall set forth in detail all
facts and circumstances supporting the Claim.
8.2 Mediation.
All Claims shall be subject to mediation as a condition precedent to the institution
of legal or equitable proceedings by either party. Request for mediation shall be filed in writing
with the other party to this Agreement. The request may be made concurrently with the filing of
a legal or equitable proceeding but, in such event, mediation shall proceed in advance of legal or
equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the
date of filing, unless stayed for a longer period by agreement of the parties or court order. The
parties shall endeavor to mutually agree on an independent, professional mediator within 15 days
of the request for mediation. The parties shall endeavor to have the mediation completed within
60 days of the request for mediation. The parties shall share the mediator's fee and any filing
fees equally. The mediation shall be held in the place where the Project is located, unless
another location is mutually agreed upon. Agreements reached in mediation shall be enforceable
as settlement agreements in any court having jurisdiction thereof. Owner and Construction
Manager agree that all parties with an interest in a Claim being mediated may be included in the
mediation, including, but not limited to, Architect and Contractors.
9. SUSPENSION AND TERMINATION
9.1 Suspension by Owner For Convenience.
Owner may order Construction Manager in writing to suspend, delay, or interrupt
the performance of this Agreement, or any part thereof, for such period of time as Owner may
determine to be appropriate for its convenience and not due to any act or omission of
Construction Manager. In that event, Construction Manager shall immediately suspend, delay or
interrupt the performance of this Agreement, or that portion of this Agreement, as ordered by
Owner. On the resumption of Construction Manager's services, Construction Manager's Fee and
Project Schedule shall be equitably adjusted for reasonable costs and delay resulting from any
such suspension.
9.2 Termination by Owner for Convenience.
Upon written notice to Construction Manager, Owner may, without cause,
terminate this Agreement. Construction Manager shall follow Owner's instructions regarding
shutdown and termination procedures, strive to mitigate all costs and stop the performance of its
services. Upon such terminatlon, Construction Manager shall invoice Owner for all services
actually perfonned and any reasonable costs or expenses incurred by Construction Manager in
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connection with the termination (such as services necessary to shutdown performance), but not
lost profits, unabsorbed overhead or lost opportunity).
9.3 Termination by Owner for Cause.
If Construction Manager fails to fully and faithfully perform its duties and
responsibilities under this Agreement, Owner may give Construction Manager written notice of
such failure and Owner's intent to terminate Construction Manager's services if Construction
Manager fails to commence and diligently continue satisfactory correction of such failure within
ten (10) days. If Construction Manager fails to commence and diligently continue satisfactory
correction of the failure within such 10-day period, Owner may terminate Construction
Manager's services by written notice. Upon such termination, Construction Manager shall not
be entitled to receive further payment until the Project is finished. If the unpaid balance of
Construction Manager's Fee exceeds costs of finishing Construction Manager's services and
other damages incurred by Owner, such excess shall be paid to Construction Manager. If such
costs and damages exceed the unpaid balance, Construction Manager shall pay the difference to
Owner.
9.4 Termination by Construction Manager.
Upon ten (10) days' prior written notice to Owner, Construction Manager may
terminate this Agreement if (i) the progress of the Project has been suspended by Owner for
convenience for a period of ninety (90) days through no fault of Construction Manager; (ii)
Owner fails to pay Construction Manager in accordance with this Agreement and Construction
Manager has not defaulted; or (iii) Owner otherwise breaches this Agreement or fails to perform
its duties and responsibilities under this Agreement and Owner has failed to cure the breach or
failure to perform within ten (10) days after Construction Manager provides such written notice
of the breach or failure to perform to Owner. Upon such termination, Construction Manager
shall invoice Owner for all services actually performed and any reasonable costs or expenses
incurred by Construction Manager in connection with the termination (such as services necessary
to shutdown performance), but not lost profits, unabsorbed overhead or lost opportunity).
10. GENERAL PROVISIONS
10.1 Ownership of Work Product.
All documents prepared by Construction Manager for the Project shall become
and be the sole property of Owner, and Owner shall be deemed to be Owner of all common law,
statutory and other reserved rights thereto, including copyrights. Construction Manager may
keeps copies of such documents for its records and for its future professional endeavors.
10.2 Insurance.
10.2.1 Errors and Omissions Liability. Construction Manager shall
provide errors and omissions liability insurance on an aggregate limits "claims made" basis in an
amount not less than Two Million Dollars ($2,000,000). Construction Manager shall either (i)
maintain the specified levels of aggregate limits "claims made" insurance for no less than three
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years after completion or termination of Construction Manager's services under this Agreement,
or (ii) provide tail coverage for claims, demands or actions reported within six (6) years after
completion or termination of Construction Manager's services under this Agreement for acts or
omissions during the term of this Agreement.
10.2.2 General Commercial Liability. Construction Manager shall
maintain at all times commercial general liability insurance and excess liability coverage on
occurrence form basis (standard, umnodified) with products and completed operations coverage
in an amount not less than One Million Dollars ($1,000,000) per occurrence and Two Million
Dollars ($2,000,000) annual aggregate.
10.2.3 Worker's Compensation. Construction Manager will maintain
at all times such worker's compensation and employer's liability coverage insurance as required
by the laws of the State in which the Project is located and any other state in which Construction
Manager or its employees perform services for Owner. The policy must be endorsed to include a
waiver of subrogation.
10.2.4 Additional Insureds. Upon Owner's request, Construction
Manager shall have Owner and Owner's lender, if any, named as additional insureds under all
Construction Manager's liability insurance policies (not including errors and omissions and
workers' compensation insurance).
10.2.5 Certificates of Insurance. Construction Manager shall provide
certificates of insurance issued by the insurer to Owner for each policy required under this
Section 10.1 and, if requested by Owner, copies of each insurance policy. Each certificate issued
to Owner shall contain th~ following covenant of the issuer: "Should any of the above described
policies be cancelled before the expiration date thereof, the issuing company will mail 30 days
written notice to the certificate holder."
10.2.6 Construction Manager's Consultants. Construction Manager
shall require its consultants to maintain at all times insurance coverages consistent with the
consultant's role on the Project and reasonably acceptable to Owner.
10.3 Payment and Performance Bonds.
If and when requested by Owner, Construction Manager shall provide Owner with
a payment and performance bond or bonds in the amounts requested by Owner to secure the
construction manager's obligations hereunder. The cost of such bond or bonds shall be a
reimbursable expense pursuant Section 6.2.3 above.
10.4 Recitals and Exhibits.
The recitals above and the exhibits referred to in this Agreement and attached
hereto are incorporated into the agreement as if set out in full in the body of the Agreement. In
the event of a conflict between any exhibit and the body of this Agreement, the Agreement shall
contro 1.
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10.5 Counterparts; Facsimile Transmission.
This agreement may be executed in counterparts, each of which shall be deemed
to be an original, but all of which, taken together, shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this agreement via
facsimile transmission shall be as effective as delivery of an original signed copy, provided that
an original signed copy shall be delivered to the party entitled thereto within five (5) business
days after such facsimile transmission.
10.6 Attorneys' Fees.
In the event of any controversy, claim or action being filed or instituted between
the parties to this agreement to enforce the terms and conditions of this agreement or arising
from the breach of any provision hereof, the prevailing party will be entitled to receive from the
other party all costs, damages, and expenses, including reasonable attorneys' fees, incurred by
the prevailing party, whether or not such controversy or claim is litigated or prosecuted to
judgment. The prevailing party will be that party who was awarded judgment as a result of trial
or arbitration and detennined to be the prevailing party by the judge or arbitrator.
10.7 Governing Law.
This agreement shall be governed by the laws, including conflicts of laws, in the
State of Idaho as an agreement between residents of the State of Idaho and to be performed
within the State of Idaho.
10.8 Venue.
As a material part of the consideration for this agreement, each of the parties
hereto agrees that in the event any legal proceeding shall be instituted between them, such legal
proceeding shall be instituted in the courts of Ada County, State of Idaho, and each of the parties
hereto agrees to submit to the jurisdiction of such courts.
10.9 Grammatical Usage.
In construing this agreement, feminine or neuter pronouns shall be substituted for
those masculine in form and vice versa, plural terms shall be substituted for singular and singular
for plural in any place in which the context so requires, and the word <<including" shall be
construed as ifthe words "but not limited to" appear immediately thereafter.
to.l0 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors and assigns. Construction
Manager shall not assign its rights hereunder, nor shall it delegate any of its duties hereunder,
without the written consent of Owner. Owner may assign this Agreement to any affiliated entity
or to any lender providing construction financing without Construction Manager's prior written
consent. Construction Manager agrees to execute all consents reasonably required to facilitate
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such an assignment. If either party makes such an assignment, that party shall nevertheless
remain legally responsible for all obligations under this Agreement, unless otherwise agreed by
the other party.
10.11 Headings.
The headings contained in this agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation hereof.
10.12 Additional Acts.
Except as otherwise provided herein, in addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by the parties, the parties
hereby agree to perform, execute and/or deliver or cause to be perfonned, executed and/or
delivered any and all such further acts, deeds and assurances as any party hereto may reasonably
require to consummate the transaction contemplated hereunder.
10.13 Time of Essence.
All times provided for in this agreement, or in any other document executed
hereunder, for the performance of any act will be strictly construed, time being of the essence.
10.14 Notice.
All notice between the parties shall be deemed received when personally
delivered or when deposited in the United States mail postage prepaid, registered or certified,
with return receipt requested, or sent by telegram or mail-o-gram or by recognized courier
delivery (e.g. Federal Express, Airborne, Burlington, etc.) addressed to the parties, as the case
may be, at the address set forth below or at such other addresses as the parties may subsequently
designate by written notice given in the manner provided in this Section:
Owner:
To be determined by Owner. Upon Owner's selection of
its authorized representative, Owner will provide Architect
the name and contact information for such representative.
With a copy to:
Office of the City Clerk
City of Meridian
33 East Idaho Avenue
Meridian, Idaho 83642-2300
Telephone: 208-888-4433
Facsimile: 208-884-8119
Email: bergw@meridiancity.org
City Attorney's Office
City of Meridian
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33 East Idaho Avenue
Meridian, Idaho 83642-2300
Telephone: 208-898-5506
Facsimile: 208-884-8723
Emai1: bairdt@meridiancity.org
Construction Manager:
Gene R. Bennett, Project Manager
PETRA INCORPORATED
9056 W. Blackeagle Drive
Boise, Idaho 83709
Telephone: 208-323-4500
Facsimile: 208-323-4507
Mobile: 208-860-7531
Email: gbennett@petrainc.net
With a copy to:
Patrick C. Kershisnik, Esq.
PETRA INCORPORATED
9056 W. Blackeagle Drive
Boise, Idaho 83709
Telephone: 208-323-4500
Facsimile: 208-323-4507
Mobile: 208-860-7531
Email: pkersbisnik@petrainc.net
10.15 Rights and Remedies Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of
the parties are cumulative, and the exercise by any party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same time or different times, of any other
rights or remedies for the same default or any other default by the other party. In the event of a
default, the parties have all of the rights and remedies afforded in law or in equity, except as
provided herein to the contrary.
10.16 Third-Party Beneficiaries.
Nothing contained herein shall create any relationship (contractual or otherwise)
with, or any rights in favor of, any third party. Construction Manager's duties and
responsibilities shall not relieve any other party, including Construction Manger and Contractors,
from their duty to fully and faithfully perform their contractual and other obligations to Owner.
10.17 Integration; Waivers.
This is the entire agreement between the parties with respect to the matters
covered herein and supersedes all prior agreements between them, written or oral. This
Agreement may be modified only in writing signed by both parties. Any waivers hereunder must
be in writing. No waiver of any right or remedy in the event of default hereunder shall constitute
a waiver of such right or remedy in the event of any subsequent default.
CONSTRUCTION MANAGEMENT AGREEMENT (CONSTRUCTION MANAGEMENT ADVISOR) PAGE 22
NEW MERIDIAN CITY HALL
C:\DDClJMENTS AND SEITINCS\PKERSHISNIK\LOCAL SElTlNGSlTEMPORARY INTERNET FllES\OlK23BICM AGR- PETRA GP04.DDC
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10.18 Severability.
If any term or provision of this agreement shall, to any extent be determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this agreement
shall not be affected thereby, and each tenn and provision of this agreement shall be valid and be
enforceable to the fullest extent permitted by law; and it is the intention of the parties hereto that
if any provision of this agreement is capable of two constructions, one of which would render the
provision void and the other of which would render the provision valid, the provision shall have
the meaning which renders it valid.
[end of text]
CONSTRUCTION MANAGEMENT AGREEMENT (CONSTRUCTION MANAGEMENT ADVISOR)
NEW MERIDIAN CITY HALL
C:\DOCllMENTS AND SEITINGS\PKERSHlSNlKILOCAL SEITINGsITEMPORARY INTERNET FILES\OLK23B\CM AGR. PETRA GP04.DOC
PAGE 23
The parties have executed this Agreement effective as of the date first set forth above.
"Owner"
CITY OF MERIDIAN,
an Idaho municipal corporation
By:
Date:
&-7-&(7
ATTEST:
~~ 8-1-(/0
William G. Berg, Jr.
City Clerk
S--7-fJb
Date:
8El\L
"7. ~ 2
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"Construction Manager"
PETRA INCORPORATED,
an Idaho corporation
By:
CONSTRUCTION MANAGEMENT AGREEMENT (CONSTRUCTION MANAGEMENT ADVISOR)
NEW MERIDIAN CITY HALL
C:\])QCUMENTS .~ND SETTfNGS\PKERSHlSNIK\LOCAL SElTfNGS'TEMPOAARY INTERNET FllES\OLK23B\CM AGR - PErM GP04.DOC
PAGE 24
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STATE OF IDAHO )
: ss
County of Ada )
On this '7. *' day of ,AlA.C\lA.~2006, before me, a Notary Public, personally
appeared TAMMY DE WEERD and WILLIAM G. BERG, JR., known or identified to me to be
the MAYOR and CITY CLERK, respectively, of the CITY OF MERIDIAN, who executed the
instrument or the person that executed the instrument of behalf of said City, and acknowledged
to me that such City executed the same.
(SEAL)
........
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ShM mf;yUitl
Notary Public for Idaho ,
Residing at: ll-'U 0h ?i J d
Commission expires: /()- /)- ((
STATE OF IDAHO )
: ss
County of Ada ).
On this 1"7f- day of lLy q.d"2006, before me, a Notary Public, personally
appeared JERRY S. FRANK, known or identified to me to be the CEO of PETRA
INCORPORATED, an Idaho corporation, who executed the instrument or the person that
executed the instrument of behalf of such corporation, and acknowledged to me that such
corporation executed the same.
(SEAL)
CONSTRUCTION MANAGEMENT AGREEMENT (CONSTRUCTION MANAGEMENT ADVISOR)
NEW MERIDIAN CITY HALL
C:'DOCUMENTS AND SETTINGSlpKERSlnSNIKILoCAL S"',INGSITEMPORARY INTERNET FILESIOLK23B\CM AGR - PETRA GPQ4.DOC
PAGE 25