Agreement between Owner and Construction Manager
for Services in Overseeing a Construction Project
Agreement made on the day of , 20 , between
, a corporation organized and existing under the
(Name of Owner)
laws of the state of , with its principal office located at
(Name of State)
, referred to herein as Owner, and
(Street Address, City, County, State, Zip Code)
, a corporation organized and existing under the
(Name of Construction Manager)
laws of the state of , with its principal office located at
(Name of State)
, referred to herein as the Construction
(Street Address, City, County, State, Zip Code)
Manager.
Whereas, Owner intends to construct a ,
(Briefly Describe the Project)
hereinafter referred to as the Project, and to coordinate the development and improvement of
adjacent property for access and parking for the Project; and
Whereas, , a corporation organized and
(Name of Contractor)
existing under the laws of the state of , with its principal office located
(Name of State)
at , referred to herein as the Contractor , has
(Street Address, City, County, State, Zip Code)
entered into an Agreement with the Owner to build the Project; and
Whereas, Owner desires to have the Project well constructed in an expeditious,
economic and efficient manner; and
Whereas, Owner deems it advisable to have an independent firm:
Oversee the administration of design and construction for the Project
Inspect the work of Contractor;
Coordinate the work of Contractor with the work of other contractors engaged by
Owner for the Project; and
Monitor the overall planning, budgets and schedules of the Project; and
Agreement between Owner and Construction Manager Page 1 of 17
Whereas, Construction Manager is an independent firm which employs professionals
who have the education, training and experience needed to perform the duties set forth herein.
Now, therefore, for and in consideration of the mutual covenants and conditions herein
contained, the parties hereto agree as follows:
I. Employment of the Construction Manager.
A. Agreement to Serve . Owner hereby retains Construction Manager to perform the
duties set forth herein during the design and construction of the Project. Construction
Manager hereby agrees to perform all of its duties set forth herein and those duties of the
Owner's Representative as described in that certain Construction Agreement dated
between Contractor and Owner, hereinafter referred to as the
(Date)
Construction Agreement . A true and correct copy of said Construction Agreement is
attached hereto as Exhibit A and made a part hereof.
B. Services of Construction Manager. The services of Construction Manager shall
be performed under the general direction of Owner and shall consist of consulting with,
advising, making recommendations to Owner and of coordinating all Owner aspects of
the planning and construction of the Project for Owner in order to expedite the
completion of the Project in accordance with the Construction Agreement. Such services
shall include those services set forth in Sections II and III below, and such other services
as may be added to or deleted from this Agreement and authorized by Owner and agreed
to by Construction Manager.
II. Pre-Construction Services.
A. Consultation during Project Development. Construction Manager shall review
the final construction documents for the Project, including:
1. The site plans and specifications;
2. The foundation plans and specifications;
3. The structural plans and specifications;
4. The architectural plans and specifications;
5. The mechanical plans and specifications;
6. The electrical plans and specifications; and
7. The plumbing plans and specifications.
B. Construction Manager shall advise Owner on the selection of systems and
materials as contained in the preliminary studies, schematic design studies and the design
development documents. Construction Manager shall also review the preliminary
construction cost estimate submitted by Contractor for the Project and if necessary revise
such estimate at periodic intervals. Construction Manager shall review any and all
Contractor construction estimates, commenting thereon; and make recommendations with
respect to such factors as construction feasibility, suggested economics, availability of
materials and labor, time requirements for installation and construction and cost. This
Agreement between Owner and Construction Manager Page 2 of 17
review shall in no way relieve the Contractor or the architect and engineers of record of
their responsibilities for the design, review, supervision and inspection of the Project.
C. Budget. Construction Manager shall revise and update the approved the Budget
of construction costs for the Project (hereinafter referred to as the Budget, as modified by
Change Order. The updated Budget shall be based on the Construction Agreement and
scope changes approved by Owner. The Construction Manager shall update and refine
this Budget for Owner's approval as the development of the Project proceeds, and
promptly advise Owner and Contractor if it appears that the Project Budget will not be
met and make recommendations for corrective action.
D. Equipment and Project Support Facilities. Construction Manager shall
investigate and recommend a schedule for the design and construction of support
facilities and for purchase or lease and installation of Owner furnished equipment as set
forth in Exhibit B, and coordinate the schedule with the preparation of contract
documents and construction by Contractor. The Construction Manager shall expedite and
coordinate the design, construction and delivery of the purchases or leases of Owner
furnished equipment and the support facilities.
E. Value Engineering. Construction Manager shall evaluate any Contractor value
engineering proposals submitted and make recommendations to Owner.
III. Construction Phase Services
A. Project Control. Construction Manager shall:
1. Coordinate and assist the activities and responsibilities of Owner and
make recommendations to permit the completion of the Project in accordance
with Owner's objectives of cost, time and quality;
2. Maintain a competent staff at the Project site as required with authority to
achieve these objectives.
3. Establish an on-site organization and lines of authority to effectively carry
out all phases of the Project on a coordinated basis as the Owner's designated
representative.
4. Provide for its site offices, including necessary utilities, telephone,
secretarial and message services as required by the Construction Manager.
B. Organizational Chart. Construction Manager shall prepare and submit to the
Owner an organizational chart, which shall include a time schedule, Construction
Manager's proposed job-site and home-office staff, identified by name, and the job
classification and salary of each member of said staff. The organizational chart is subject
to the written approval of Owner. Construction Manager shall not be required to perform
any services under this Agreement until notification of approval of chart by Owner. No
changes may be made to the organizational chart without the express written consent of
Agreement between Owner and Construction Manager Page 3 of 17
Owner once it has been approved.
C. Meetings. Construction Manager shall participate in all pre-construction and
construction and progress meetings with trade contractors and Contractor. Construction
Manager shall prepare minutes and furnish copies to all interested parties and to Owner
and meet with Owner, as requested by Owner, to discuss the construction progress,
problems and to review applications for payment.
D. Progress Records. Construction Manager shall keep accurate and detailed
written records of the progress of the Project during all stages of planning and
construction and shall submit weekly and monthly written progress reports to Owner,
including but not limited to, information concerning the work, the Construction
Manager's opinion of the percentage of completion and the number and amount of all
change orders pending or approved to date. Construction Manager shall:
1 . Identify potential variances between scheduled and probable completion
dates;
2. Review Contractor's Schedule for work not started or incomplete;
3. Recommend to Owner adjustments in the schedule to meet the probable
completion date.
4. Provide summary reports of each for monitoring;
5. Document all changes in the schedule; and
6. Provide the reports to Owner.
E. Contract Defaults. Construction Manager shall:
1. Recommend courses of action to Owner when requirements of the
Construction Agreement are not being fulfilled.
2. Determine the need for and recommend to Owner the institution of partial
or complete default proceedings against Contractor and/or the termination of any
separate direct contracts, the assessment of liquidated damages, and assist the
Owner in selecting alternate contractors to perform defaulted work;
3. Assist in evaluating back charges or other damages or penalties to be
assessed.
Nothing in this Paragraph E shall in any way limit the Owner from taking any
action or refusing to take any action with regard to the Project, notwithstanding any
recommendations by the Construction Manager.
Agreement between Owner and Construction Manager Page 4 of 17
F. Cost Control . Construction Manager shall:
1. Revise and refine the approved budget of construction cost for the Project;
2. Incorporate approved changes as they occur;
3. Develop cash flow reports and forecasts as needed;
4. Derive cost estimates on changes of scope to verify Contractor estimates
for negotiation assistance, after prior approval of scope change by Owner;
5. Provide regular monitoring of the approved Budget of Project construction
cost, showing actual costs for activities in process and estimates for uncompleted
tasks, identify variances between actual and budgeted or estimated costs;
6. Promptly advise Owner whenever projected costs exceed budgets or
estimates, including without limitation, all work performed on a time and material
basis, unit cost or similar basis; (iii) keep current computerized records and
computations and summaries; and (iv) provide copies of a printout of such
information at least once a month to the Owner.
G. Change Orders. Construction Manager shall
1. Review all requests for Change Orders;
2. Implement the procedure for processing of change orders by obtaining a
proposal from Contractor and reviewing and evaluating such proposals;
3. Assist in negotiating cost of Change Orders;
4. Make recommendations to Owner and be prepared to substantiate all
evaluations to Owner; and (v) prepare Change Orders for Owner's signature with
the assistance of Contractor.
5. Recommend necessary or desirable changes to Owner;
6. Review requests for changes and applications for extension of time from
Contractor;
7. Submit recommendations to Owner; and
8. Negotiate change orders.
H. Payment Procedures. Construction Manager shall develop and implement a
procedure for the review and processing of applications by Contractor for the Project for
progress and final payments and make recommendations concerning all certifications to
Agreement between Owner and Construction Manager Page 5 of 17
Owner for payment.
I. Inspection. The Construction Manager shall:
1. Inspect the work of Contractor as set forth in the Construction Agreement
to determine, for the benefit of Owner, that all work on the Project is being
performed in accordance with the requirements of the contract documents,
drawings and specifications;
2. Use its best efforts to guard the Owner against any and all defects and
deficiencies in the Project;
3. Require Contractor or other trade contractors performing work on the
Project to stop work or any portion thereof, and require special inspection or
testing of any work believed to be not in accordance with the provisions of the
contract documents whether or not such work be then fabricated, installed or
completed and reject work which does not conform to the requirements of the
contract documents, drawings and specifications for such work. Such inspections
by the Construction Manager, as the Owner's representative, shall in no way
relieve the Contractor of its obligation to comply with the contract documents or
the architects or engineers of record of their obligations to make independent field
reviews.
J. Contract Performance. Construction Manager shall review the work of
Contractor on the Project until final completion and acceptance of the Project by Owner,
assure the Owner that the materials furnished and work performed on the Project are in
accordance with the plans and specifications and other contract documents, and that the
work on the Project is progressing on schedule. In the event the interpretation of the
meaning and intent of the plans and specifications becomes necessary during
construction, Construction Manager shall, on behalf of Owner, consult with Contractor,
ascertain Contractor's interpretation, and transmit such information to Owner and make
appropriate recommendations to Owner concerning said interpretation.
K. Shop Drawings, etc. Construction Manager shall review shop drawings, catalogs
and samples for compliance with the contract documents and make recommendations to
the Owner. Construction Manager shall also coordinate procedures to be followed for
expediting the processing of shop drawings, catalogs and samples for the Owner. Such
review shall in no way relieve the Contractor of its obligations to comply with the
contract documents or the architects or engineers of record of their obligation to make an
independent review of all submittals.
L. Start-up. Construction Manager shall, with Owner's maintenance personnel,
assist in the checkout of utilities, operational systems and equipment for readiness and
assist in their initial start-up and testing.
M. Owner-Purchased Items. Construction Manager shall accept delivery and
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arrange at the expense of the appropriate party, storage, protection and security for all
Owner-purchased materials, systems and equipment until such items are turned over to
the Contractor or incorporated in the Project.
N. Owner's Consultants. Construction Manager shall, if required, assist
Owner in selecting and retaining professional services of special consultants and testing
laboratories and coordinate these services.
O. Tests. Construction Manager shall review all tests of cement, concrete, structural
or reinforcing steel or of any other material or equipment required to be tested under the
terms of the contract documents for conformity with the terms and conditions of the
contract documents.
P. Reports and Records.
1. Construction Manager shall:
(i) Record the progress of the Project,
(ii) Submit written progress reports to Owner, including information
on the Contractor and work, the percentage of completion and the number
and amounts of change orders,
(iii) Keep a daily log available to Owner in which shall be described in
detail all work accomplished on the preceding working day, the number of
persons employed at the site and the number of hours worked, material
shortages, labor difficulties, weather conditions, list of visiting officials
and jurisdictions, daily activities, decisions, observations in general and
specific observations as required.
(iv) Review the "as built" drawings as prepared by the Contractor to
determine that they are kept current and produced to fulfill the contract
requirements and maintain a complete set of such drawings.
(v) Maintain at the Project site, on a current basis, to be available for
review by Owner at all times: records of all contracts, orderly files for
correspondence, reports of job conferences, reproductions of original
contract documents including all addenda, change orders, supplemental
drawings, shop drawings, “as built” drawings, samples, purchases,
materials, equipment, maintenance and operating manuals and
instructions, and any other related documents and revisions which arise
out of the Project.
(vi) Obtain data to be furnished and maintain a file of operating
manuals and routinely review the contractor's current set of record
drawings and specifications.
Agreement between Owner and Construction Manager Page 7 of 17
(vii) At the completion of the Project, deliver all such records to Owner,
and
(vii) Prepare when requested by Owner all replies to correspondence
from the Contractor, including letters and complaints, for signature and
approval by Owner.
Q. Substantial Completion. Construction Manager shall inspect the Project with
Owner between thirty to forty-five days prior to the time Owner is to take over, use,
occupy or operate any part or all of the Project and, in addition, fifteen to twenty days
prior to the time Contractor is expected to complete its work, furnish a detailed report to
Owner of discrepancies and deficiencies in the work performed or any materials provided
by any material supplier, determine substantial completion or beneficial occupancy as
appropriate, prepare all necessary punch lists and expedite execution of same, and
monitor the correction and completion of said work.
R. Final Completion. Construction Manager shall inspect the Project with Owner
upon the completion of construction and thereafter Construction Manager shall provide a
final detailed written report to Owner setting forth the Construction Manager's opinion as
to whether or not the Project is finally complete. Owner need not issue the Certificate of
Final Acceptance until it has received certification of final completion from Construction
Manager.
S. Claims and Litigation. In the event any claim or claims are asserted against
Owner, or any action brought in any way relating to the construction of the Project,
Construction Manager shall diligently render to Owner any and all assistance which
Owner may require. In the event such services are requested by the Owner and rendered
by the Construction Manager, the Construction Manager shall receive an additional fee
for such services.
T. Duration of Contract. The services of the Construction Manager shall
commence as of the date hereof and Construction Manager shall continue its services
hereunder until the Final Acceptance. Any of Construction Manager's continuing
obligations under this Agreement shall survive Final Acceptance and final payment by
Owner, and termination of this Agreement with or without cause.
U. Time of the Essence. In performing the services hereunder, Construction
Manager shall place emphasis on considerations which will aid in expediting the
construction of the Project. Construction Manager agrees to use its best efforts to effect
completion of the Project on or before the Project Completion Date and, to this end, but
without limitation, it shall give constant attention to the adequacy of Contractor's
planning, personnel, equipment and the availability of materials and supplies.
Construction Manager acknowledges that time will be of the essence in completion of the
Project and that it will be its responsibility to attempt to prevent delays. Construction
Manager will keep informed as to situations which may result in delays and take
Agreement between Owner and Construction Manager Page 8 of 17
immediate steps to avoid the occurrence of such delays. If such a situation is not resolved
immediately, Construction Manager shall bring it to the immediate attention of Owner
and make appropriate recommendations to the Owner to resolve or mitigate any potential
loss or damage that could arise from such situation.
IV. Construction Manager Personnel
A. Communications in Writing.
1. All recommendations and communications by Construction Manager to
Owner that will affect the cost or completion date of the Project shall be made or
confirmed by the Construction Manager in writing. Owner may also require other
recommendations and communications by Construction Manager to be made or
confirmed by it in writing.
2. All recommendations relating to proposed changes in the work, work
schedules, requests for time extensions and instructions to Contractor, shall be
made directly to the Construction Manager and Owner by the Contractor, unless
otherwise directed by Owner.
B. Construction Manager/Independent Contractor. The relationship of
Construction Manager to Owner shall be that of independent contractor, and Construction
Manager shall have no authority to bind Owner in any way with third parties, except as
specifically set forth in writing where Owner may permit Construction Manager to
execute agreements as an agent of Owner.
C. No Third Party Beneficiaries. Nothing contained herein shall be deemed to
create a contractual relationship between or among Construction Manager, Contractor,
subcontractors or material suppliers for the Project, nor shall anything contained herein
be deemed to give any such party or any third party any claim or right of action against
Owner or Construction Manager beyond such as may otherwise exist without regard to
this Agreement.
D. Construction Manager's Personnel.
1. Construction Manager shall designate, within ten days after execution of
this Agreement, in writing, one person who, on its behalf, shall be responsible for
the coordination of all the services to be rendered by it hereunder and to serve as
its principal representative in its relationship with the Owner. The designation of
such person and such person's continuance in that capacity shall be subject to the
approval of Owner. This person may not be changed by Construction Manager
after written approval by Owner without the express written consent of Owner.
2. All personnel assigned by Construction Manager to its performance of this
Agreement shall cooperate fully with personnel assigned to the Project by Owner
and in the event Owner determines that any personnel of Construction Manager
have failed so to cooperate, or are not performing their duties satisfactorily,
Agreement between Owner and Construction Manager Page 9 of 17
Construction Manager shall, without additional cost at the request of Owner,
replace such personnel. The designation of personnel assigned to the Project by
Construction Manager and their continuance in such designation shall be subject
to approval of Owner. Once assigned, no personnel may be transferred by the
Construction Manager without prior written approval of the Owner.
E. Responsibilities of Construction Manager. Construction Manager specifically
agrees that its consultants, agents or employees shall possess the experience and
knowledge necessary to qualify them individually for the particular duties they perform.
F. Construction Manager's Employees. It is agreed that all personnel and other
consultants of Construction Manager are employees of Construction Manager and not of
the Owner, and that Construction Manager alone is responsible for their work actions or
inactions.
V. Termination.
A. Termination for Convenience. Owner shall have the right, upon thirty (30) days'
written notice to Construction Manager, to postpone, delay, suspend or terminate all or
any portion of the services to be performed by Construction Manager under this
Agreement, or any additions hereto or modifications hereof, at any time and for any
reason deemed to be in Owner's interest. In such event, Construction Manager shall be
paid such part of the fee as shall have become due and payable hereunder so as to
compensate Construction Manager for the work done by Construction Manager prior
thereto. Such postponement, delay, suspension or termination shall not give rise to any
cause of action by Construction Manager or its employees or consultants for damages or
extra remuneration against Owner.
B. Default, Termination for Cause. In the event that Construction Manager, for any
reason or through any cause (1) fails to perform any of the terms, covenants or provisions
of this Agreement; or (2) if Construction Manager shall violate any of the terms,
covenants or provisions of this Agreement, then Owner may, upon the giving of a written
notice to Construction Manager, immediately terminate this Agreement for cause. In such
event, the Construction Manager shall be liable to the Owner for any and all costs,
expenses and damages sustained by the Owner as a result of the default of the
Construction Manager. Construction Manager shall not be entitled to any further payment
of its fee or reimbursement of its expenses in the event of a valid termination for cause by
the Owner.
C. Ownership of Working Papers. All office diaries, daily records of labor,
materials and equipment used, notes, designs, reports, drawings, tracings, estimates,
schedules and other documents prepared by or for Construction Manager pursuant to this
Agreement shall become the property of Owner. Upon the termination of Construction
Manager's services for any reason whatsoever, Construction Manager shall deliver to
Owner all the heretofore enumerated items which thereafter Owner may utilize in whole
or in part or in modified form and in such manner or for such purposes or as many times
as it may deem advisable without employment or additional compensation to
Agreement between Owner and Construction Manager Page 10 of 17
Construction Manager.
VI. Construction Manager’s Fee.
A. P ayment. Owner shall pay to Construction Manager and Construction Manager
shall accept from Owner, as compensation for:
1. Basic Services to be rendered by Construction Manager pursuant to this
Agreement, a total fee of $ (hereinafter referred to as the Fee ),
payable as set forth in Section VI-D herein;
2. If required by the Owner, the Construction Manager shall be paid for
additional services in accordance with the provisions of Section VI-C-2.
B. Construction Manager's Fee. The Fee shall be as set forth in Section VI-A-1
shall constitute full compensation to Construction Manager. The fee for Basic Services
shall be compensation for services rendered including but not limited to the following:
1. Overseeing the Project at the construction site during the construction
period until Final Acceptance of the Project by Owner;
2. Compensation to officers or principals, home and regional office salaries
(including, but not limited to, the construction, accounting, purchasing, estimating
and cost control departments), services of a senior officer who shall have overall
responsibility for the performance of this Agreement, home and regional office
professional salaries, salaries of general supervisory employees who do not
devote full time to the Project, and all payments mandated by law (including, e.g.,
taxes, pensions and insurance) and all fringe benefits relating to these employees;
3. Legal and accounting fees and bookkeeping expenses whether or not such
services are performed at the site;
4. Cost of on-site, home office and regional general facilities including, but
not limited to, rental cost or depreciation factor, costs of preparation of computer
assisted design drawings or data, light, heat and water, insurance related to home
office, telephone, telegraph, sales, plans and estimating expenses, stationery,
printing and postage, office and miscellaneous expenses, etc.;
5. Miscellaneous travel and expediting costs;
6. Taxes other than sales and use taxes;
7. Interest expense;
8. Advertising, dues and subscriptions;
9. Contributions;
Agreement between Owner and Construction Manager Page 11 of 17
10 Home office and regional office overhead; and
11. Profit.
C. Changes in Construction Manager's Scope of Work; Additional Services.
1. At the discretion of the Owner, the scope of work of the Construction
Manager, as set forth herein may be modified, increased or decreased. In such
event, the Fee of the Construction Manager shall be adjusted accordingly.
2. When authorized by the Owner, the Construction Manager shall provide
additional services. In the discretion of the Owner, these services shall be billed
on the basis of standard billing rates of the Construction Manager or negotiated on
a lump sum basis.
3. When authorized by Owner, the Construction Manager shall reduce its
scope of services and there shall be an appropriate reduction in the Fee payable to
Construction Manager which shall be determined based upon negotiations
between the parties.
D. Method of Payment of Fee. The Fee shall be paid in monthly installments and
based on the percentage of the Construction Manager's work completed. Construction
Manager shall submit a schedule of values for payment subject to approval of Owner
within thirty (30) days of the execution of this Agreement. All payments for services are
contingent upon the satisfactory performance of the Construction Manager's obligations
hereunder which shall be determined in the reasonable discretion of Owner.
E. Payment Not a Waiver. Neither the approval or making of any payment to the
Contractor, nor the partial or entire use or occupancy of the Project by the Owner shall be
an acceptance of any portion of Project by Owner or a waiver of any rights of the Owner.
G. The Right of Owner to Withhold Payment. Owner may withhold or nullify the
whole or part of any payment to Construction Manager, to such extent as may be
necessary to reasonably protect itself from any of the following:
1. Evidence of fraud, over-billing or overpayment discovered upon audit; or
2. Failure of the Construction Manager to prosecute its work in accordance
with this Agreement; or
3. Defective or improper work performed by the Construction Manager.
H. Accounting Records. Construction Manager shall maintain complete, detailed
and accurate cost and accounting records as to all its costs. During the term of this
Agreement and at any time within three years thereafter, Construction Manager shall
make such records available to Owner or its authorized representatives for review and
audit at Construction Manager's place of business during normal business hours. In the
Agreement between Owner and Construction Manager Page 12 of 17
event Owner authorized Construction Manager to retain the services of consultants or
subcontractors for which Construction Manager will be entitled to reimbursement
hereunder, Construction Manager agrees to include in all its contracts with such
consultants and subcontractors a requirement that they maintain complete, detailed and
accurate cost and accounting records as to all their costs relating to the services and
materials furnished by them under such contracts and during the term of this Agreement
and at any time within three years thereafter if required by Owner they will make such
records available to Owner or its representatives for review and audit at such places as
may be designated by Owner.
I. Construction Manager to Perform Properly. Construction Manager shall be
liable to Owner for all losses, expenses and damage caused by the failure of Construction
Manager to properly perform its obligations under this Agreement. Construction Manager
shall not be entitled to any compensation for services or reimbursement for costs or
expenses with respect to any such obligations not properly performed by it hereunder.
VII. Insurance.
A. Insurance. Construction Manager shall purchase and maintain the following
insurance to cover Construction Manager's operations under this Agreement whether
such operations be by itself or by any consultant or by anyone directly or indirectly
employed by any of them, or by anyone for whose acts any of them may be liable:
1. Worker's Compensation insurance in full compliance with worker's
compensation laws and other similar employment benefit laws of the state within
which any part of the work is to be performed, together with employer's liability
coverage with minimum limits of liability in the amount of $ for
each occurrence.
2. Comprehensive automobile liability insurance covering all owned, hired
and non-owned vehicles with the following minimum limits of liability:
(i) Bodily Injury Liability -- $ each person; and
(ii) Property Damage Liability -- $ each occurrence.
3. Comprehensive general liability insurance including Independent
Contractor's coverage with the following minimum limits of liability:
(i) Bodily Injury Liability:
$ each occurrence;
$ aggregate-operations; and
$ aggregate-products and completed operations.
Agreement between Owner and Construction Manager Page 13 of 17
(ii) Property Damage Liability:
$ each occurrence;
$ aggregate-operations; and
$ aggregate-products and completed operations.
(iii) Broad Form Contractual Liability:
$ each occurrence; and
$ aggregate.
(iv) Coverage Endorsements (all references are Standard Insurance
Service Office current form):
Premises—Operations Liability;
Independent Contractor Liability;
Products and Completed Operations Liability;
Contractual Liability Insurance (Blanket Coverage-Broad Form);
Personal Injury Liability Insurance (Hazards A, B, C, D) with
Exclusion (c) and Exclusion (a) deleted
Broad Form Property Damage Liability Insurance (including
completed operations); and
Blanket X, C and U Coverage
(v) Umbrella Liability Insurance covering all operations of the
Program Manager with limits no less than:
$ each occurrence; and
$ each aggregate.
(vi) Construction Manager's comprehensive general liability policy
shall also include blanket contractual liability coverage.
B. Errors and Omissions. Construction Manager shall furnish and maintain
Professional Liability Errors and Omissions Insurance in the amount of $ .
C. Certificates. Construction Manager shall furnish to Owner promptly following
the execution of this Agreement, certificates evidencing the maintenance of said
insurance. The certificates shall provide that sixty (60) days written notice shall be given
to Owner before the insurance policies herein are changed or cancelled.
D. Waiver of Subrogation.
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1. Construction Manager hereby waives any and all rights against the Owner
for damages caused by perils covered by insurance required under this Section
VII.
2. If the policies of insurance referred to in this Section require an
endorsement to provide for continued coverage where there is a waiver of
subrogation, the Construction Manager will cause such policies to be so endorsed.
VIII. Indemnification.
A. Indemnification by the Construction Manager. To the fullest extent permitted
by law, the Construction Manager shall indemnify, defend and hold harmless Owner, its
officers, directors and its agents and employees from and against all claims, damages,
injuries, losses, costs, fees and expenses including attorney's fees arising out of or
resulting from (i) breaches of Construction Manager's representatives, warranties,
covenants or duties contained herein, or (ii) the performance of the Construction
Manager's services hereunder or the services of Construction Manager's agents, servants,
employees or subcontractors or anyone directly or indirectly employed by them or for
whose acts any of them may be liable in connection with Construction Manager's duties
hereunder.
IX. Miscellaneous.
A. Assignment. This Agreement shall not be assigned, delegated or transferred in
whole or in part by the Construction Manager nor shall the Construction Manager assign
any monies due or to become due to it without the prior written consent of the Owner.
B. Owner's Designated Representative. Owner shall upon execution of this
Agreement, designate its authorized representative with the authority to respond to the
requests of the Construction Manager. Owner may change its designated representative
by giving written notice to Construction Manager. Construction Manager will provide
onsite office space for the Owner's designated representative.
C. Conflict of Interest. Construction Manager covenants that neither it nor any of its
officers has any interest, nor shall it or they acquire any interest, directly or indirectly,
which would conflict in any manner or degree with the performance by Construction
Manager of its services hereunder. Construction Manager further covenants that in the
performance of this Agreement, no person having such interest shall be employed by it.
D, No Discrimination. No person on the ground of handicap, age, race, color,
religion, sex, veteran status, or national origin, will be excluded from participation in, or
be denied the benefits of, or be otherwise subjected to discrimination in the performance
of this Agreement or any contract in connection with the projects, in the use and
employment of the projects, or in employment practices in connection with the Project.
Construction Manager shall upon request show evidence of such non-discrimination and
shall post notices of non-discrimination in conspicuous places available to all employees
and applicants.
Agreement between Owner and Construction Manager Page 15 of 17
E. Confidentiality. During the confidential relationship established hereby, Owner
may communicate to Construction Manager certain information to enable Construction
Manager to render the services hereunder or may develop confidential information for
Owner. Construction Manager agrees (i) to treat, and to obligate Construction Manager's
employees, if any, to treat as secret and confidential, all information identified by Owner
as confidential and any such information which constitutes a trade secret as a matter of
law; and (ii) not to disclose any such information or make available any reports,
recommendations and/or conclusions which Construction Manager may make for Owner
to any person, firm or corporation or use it in any manner whatsoever without first
obtaining Owner's written approval.
F. Severability. The invalidity of any portion of this Agreement will not and shall
not be deemed to affect the validity of any other provision. If any provision of this
Agreement is held to be invalid, the parties agree that the remaining provisions shall be
deemed to be in full force and effect as if they had been executed by both parties
subsequent to the expungement of the invalid provision.
G. No Waiver. The failure of either party to this Agreement to insist upon the
performance of any of the terms and conditions of this Agreement, or the waiver of any
breach of any of the terms and conditions of this Agreement, shall not be construed as
subsequently waiving any such terms and conditions, but the same shall continue and
remain in full force and effect as if no such forbearance or waiver had occurred.
H. Governing Law. This Agreement shall be governed by, construed, and enforced
in accordance with the laws of the State of .
(Name of State)
I. Notices. Unless provided herein to the contrary, any notice provided for or
concerning this Agreement shall be in writing and shall be deemed sufficiently given
when sent by certified or registered mail if sent to the respective address of each party as
set forth at the beginning of this Agreement.
J. Attorney’s Fees. In the event that any lawsuit is filed in relation to this
Agreement, the unsuccessful party in the action shall pay to the successful party, in
addition to all the sums that either party may be called on to pay, a reasonable sum for the
successful party's attorney fees.
K. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to
the contrary, any dispute under this Agreement shall be required to be resolved by
binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each
party shall select one arbitrator and both arbitrators shall then select a third. The third
arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the
rules of the American Arbitration Association then in force and effect.
L. Entire Agreement. This Agreement shall constitute the entire agreement between
the parties and any prior understanding or representation of any kind preceding the date
of this Agreement shall not be binding upon either party except to the extent incorporated
in this Agreement.
Agreement between Owner and Construction Manager Page 16 of 17
M. Modification of Agreement. Any modification of this Agreement or additional
obligation assumed by either party in connection with this Agreement shall be binding
only if placed in writing and signed by each party or an authorized representative of each
party.
N. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute
but one and the same instrument.
O. Compliance with Laws . In performing under this Agreement, all applicable
governmental laws, regulations, orders, and other rules of duly-constituted authority will
be followed and complied with in all respects by both parties.
WITNESS our signatures as of the day and date first above stated.
(Name of Construction Manager) (Name of Owner)
By: By:
(P rinted Name & Office in Corporation) (P rinted Name & Office in Corporation)
(Signature of Officer) (Signature of Officer)
Agreement between Owner and Construction Manager Page 17 of 17
