EXHIBIT 10.62
MASTER AGREEMENT
PROGRAM MANAGEMENT SERVICES
This Master Agreement for Program Management Services (Agreement) is entered
into this 01 day of JANUARY, 2001 Contract Number 78-0002
BETWEEN the Client:
(NAME, ADDRESS AND OTHER INFORMATION)
Big Buck Brewery & Steakhouse, Inc.
000 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxxx, President/CEO
Phone: 517/000-0000, Ext. 25 FAX: 517/000-0000 Mobile: 517/000-0000
Email: xxxx@xxxxxxx.xxx
and the Program Manager:
(NAME, ADDRESS AND OTHER INFORMATION)
COLUMBIA CONSTRUCTION SERVICES-MICHIGAN, INC.
00000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000 XXX
Xxxx X. Xxxxxxxxxx, President, CIT, CSI, CDT
Phone: 313/000-0000, Ext. 201 FAX: 313/000-0000 Pager: 810/704-1522
Email: xxxxxxxxxxx@xxxxxxxxxxxxxxxxxxxx.xxx
the Client and Program Manager agree as follows:
1. PROGRAM MANAGEMENT SERVICES
Throughout the term of this Agreement, the Program Manager shall perform
the Program Management Services listed below.
1.1 The Program Manager shall consult with and advise the Client on a
regular basis regarding the Client's on-going construction and/or
renovation of restaurants in connection with Client's business
operations. The Program Manager shall assist the Client in developing
an overall program for the development of Client's restaurants and
shall provide assistance and advice in the on-going management of the
Client's program.
1.2 The Program Manager shall assist the Client in developing overall
program criteria for Client's development of new restaurants and
renovation and expansion of existing restaurant spaces.
1.3 The Program Manager shall consult with the Client regarding
development, design and construction issues related to Client's
restaurant business.
1.4 The Program Manager shall assist the Client in reviewing design and
construction considerations in connection with selection of food
service equipment suppliers ("Suppliers").
1.5 The Program Manager shall assist the Client in reviewing and
evaluating potential sites for new restaurants.
1.6 The Program Manager shall assist the Client in preparing preliminary
budgets for development, design and construction or renovation of
restaurants. The Program Manager shall consult with the Client and
other consultants and Suppliers retained by the Client regarding value
engineering recommendations to reduce design and construction costs.
1.7 The Program Manager shall assist the Client in preparing preliminary
schedules for the Client's overall development program.
1.8 The Client acknowledges that this Agreement does not include Services
for regular repair and maintenance work for Client's restaurants or
for limited construction or renovation projects (of $50,000.00 or
less). At the request of the Client, the Program Manager shall provide
Program Management Services for such projects for an agreed-upon lump
sum amount or on a cost-plus basis with an agreed-upon xxxx-up.
2. SERVICES FOR A SPECIFIC PROJECT
2.1 PRE-CONSTRUCTION PHASE SERVICES:
If the Client authorizes the Program Manager to perform services for a
specific project ("Project") or proposed Project site, the Program
Manager shall perform the Pre-Construction Phase Services listed in
this Section 2.1. Such Pre-Construction Phase Services are in addition
to the Program Management Services provided under Section 1.
2.1.1 The Program Manager shall provide overall coordination of]
activities of the Client's consultants and Suppliers with each
other in connection with the design
of the Project. The Program Manager shall coordinate with the
Client's landlord in connection with the design of the Project,
shall monitor the compliance of the design of the Project with
the landlord's design criteria, and shall monitor the review
and approval of drawings and specifications by the landlord as
required by the lease for the Project space.
2.1.2 The Program Manager shall assist the Client and the Client's
architect or other design consultant (the "Design
Professional") in finalizing a specific program for the
Project. The Program Manager shall provide preliminary
evaluation of the Project program and budget requirements, each
in terms of the other. With the Design Professional's
assistance, the Program Manager shall provide preliminary
estimates of construction cost for early schematic designs
based on area, volume or other standards. The Program Manager
shall assist the Client and the Design Professional in
achieving mutually agreed upon program and Project budget
requirements and other design parameters. The Program Manager
shall provide cost evaluations of alternative materials and
systems.
2.1.3 The Program Manager shall review the project schedule for the
pre-construction phase developed by the Design Professional and
make recommendations to the Design Professional regarding
revisions to such project schedule.
2.1.4 The Program Manager shall review designs during their
development. The Program Manager shall advise on site use and
improvements, if applicable, selection of materials, equipment
and methods of Project delivery. The Program Manager shall
provide recommendations on relative feasibility of construction
methods, availability of materials and labor, time requirements
for procurement, installation and construction, and factors
related to cost including, but not limited to, costs of
alternative designs or materials, preliminary budgets and
possible economies.
2.1.5 The Program Manager shall coordinate contract documents by
consulting with the Client and the Design Professional
regarding drawings and specifications as they are being
prepared, and recommending alternative solutions whenever
design details affect construction feasibility, cost or
schedules.
2.1.6 The Program Manager shall investigate and recommend a schedule
for the Client's purchase of materials and equipment requiring
long lead time procurement, and coordinate the schedule with
the early preparation of portions of the contract documents by
the Design Professional. The Program Manager shall expedite and
coordinate delivery of these purchases.
2.1.7 Based on construction drawings and specifications approved by
the Client, the Program Manager shall develop a line item
Construction Budget for construction work (the "Work") for the
Project for review and approval of the Client. The Construction
Budget shall list exclusions for any Work item not covered by
the Construction Budget and shall list any alternates for
consideration by the Client. In determining the line item
amounts for the Construction Budget, if appropriate, the
Program Manager shall obtain at least three (3) competitive
bids for each line item, unless the Client and the Program
Manager agree the competitive bidding is not required for a
particular line item. The Program Manager shall consult with
the Client regarding the Construction Budget prepared by the
Program Manager.
2.1.8 The Program Manager shall develop a bar chart Preliminary
Construction Schedule for the Project for review and approval
of the Client. The Preliminary Construction Schedule shall
include commencement and completion dates for portions of the
Work, dates for delivery, installation and start-up of
equipment items, Client's occupancy requirements, and other
significant dates. The Program Manager shall consult with the
Client regarding the Preliminary Construction Schedule prepared
by the Program Manager.
2.2 CONSTRUCTION PHASE SERVICES:
If the Client authorizes the construction of a specific Project to
proceed, the Program Manager shall perform the Construction Phase
Services listed below in connection with such Project. The Client will
not be deemed to have authorized the construction of the Project until
the Client signs and submits to the Program Manager a Project
Authorization in the form attached as Exhibit A, confirming that (i)
the Client approves the construction drawings and specifications for
the Project developed by the Design Professional; (ii) the Client
approves the Construction Budget developed by the Program Manager;
(iii) the Client approves the Preliminary Construction Schedule
developed by the Program Manager; and (iv) the Client authorizes
construction to proceed. The Construction Phase Services listed below
are in addition to the Program Management Services provided under
Section 1.
2.2.1 The Program Manager shall enter into construction contracts
("Contracts") with construction contractors ("Contractors") on
behalf of the Client. Unless the Client and Program Manager
agree otherwise, the Contract amount shall be the amount
indicated in the Construction Budget attached to the
Authorization To Proceed With Construction and the Contractor
shall be the bidder recommended by the Project Manager.
2.2.2 The Program Manager shall provide overall coordination of
activities of the Client's contractors, consultants and
Suppliers with each other in connection with the construction
of the Project.
2.2.3 The Program Manager shall coordinate with the Client's landlord
in connection with the construction of the Project, shall
monitor the review and approval of contractor submittals by the
landlord, and shall monitor compliance of the Contractors' and
suppliers activities at the site with Shopping Center security
requirements and other requirements of the Landlord pertaining
to construction activities at the Shopping Center.
2.2.4 The Program Manager, in cooperation with the Design
Professional, shall provide administration of the Contracts on
behalf of the Client.
2.2.5 The Project Manager shall provide administrative, management
and related services as required to coordinate Work of the
Contractors with each other and with the activities and
responsibilities of the Suppliers, Program Manager, the Client
and the Design Professional to complete the Project in
accordance with the Client's objectives for cost, time and
quality. The Program Manager shall provide sufficient
organization, personnel and management to provide the
Construction Phase Services required under this Section 2.2.
2.2.6 The Program Manager shall schedule and conduct
pre-construction, construction and progress meetings to discuss
such matters as procedures, progress, problems and scheduling.
The Program Manager shall prepare and promptly distribute
minutes.
2.2.7 Consistent with the Preliminary Construction Schedule attached
to the Authorization To Proceed With Construction, and
utilizing the construction schedules provided by the separate
Contractors, the Program Manager shall prepare a Construction
Schedule for the Project incorporating the activities of
Contractors and Suppliers on the Project, including activity
sequences and durations, allocation of labor and materials,
processing of shop drawings, product data and samples, and
delivery of products requiring long lead time procurement. The
Program Manager shall include the Client's occupancy
requirements showing portions of the Project having occupancy
priority. The Program Manager shall update and reissue the
Construction Schedule as required to show current conditions
and revisions required by actual experience.
2.2.8 The Program Manager shall endeavor to achieve satisfactory
performance from each of the Contractors. The Program Manager
shall recommend courses of action to the Client when
requirements of a Contract are not being fulfilled, and the
nonperforming party will not take satisfactory corrective
action.
2.2.9 The Program Manager shall revise and refine the approved
Construction Budget incorporate approved changes as they occur,
and develop cash flow reports and forecasts as needed. The
Program Manager shall provide regular monitoring of the
approved Construction Budget, showing actual costs for
activities in progress and estimates for uncompleted tasks. The
Program Manger shall identify variances between actual and
budgeted or estimated costs, and advise the Client whenever
projected costs exceed budgets or estimates.
2.2.10 The Program Manager shall maintain cost accounting records on
authorized Work performed under unit costs, additional Work
performed on the basis of actual costs of labor and materials,
or other Work requiring accounting records.
2.2.11 The Program Manager shall recommend necessary or desirable
changes to the Design Professional and the Client, review
requests for changes, assist in negotiating Contractors'
proposals, submit recommendations to the Design Professional
and the Client, and if they are accepted, prepare and sign
change orders for the Design Professional's signature and the
Client's authorization.
2.2.12 The Program Manager shall develop and implement procedures for
the review and processing of applications by Contractors and
Suppliers for progress and final payments. The Program Manager
shall make recommendations to the Design Professional for
certification to the Client for payment.
2.2.13 The Program Manager shall assist in obtaining building permits
and any applicable special permits for permanent improvements,
excluding permits required to be obtained directly by the
various Contractors. The Program Manager shall verify that the
Client has paid applicable fees and assessments.
The Program Manager shall assist in obtaining approvals from
authorities having jurisdiction over the Project.
2.2.14 If required, the Program Manager shall assist the Client in
selecting and retaining the professional services of special
consultants and testing laboratories and shall coordinate their
services.
2.2.15 The Program Manager shall determine in general that the Work of
each Contractor is being performed in accordance with the
requirements of the applicable Contract. The Program Manager
shall endeavor to guard the Client against defects and
deficiencies in the Work. As appropriate, the Program Manager
shall require special inspection or testing, or make
recommendations to the Design Professional regarding special
inspection or testing, of Work not in accordance with the
drawings and specifications for the Contract whether or not
such Work be then fabricated, installed or completed. Subject
to review by the Design Professional, the Program Manager shall
reject Work, which does not conform to the requirements of the
drawings and specifications for the Contract.
2.2.16 The Program Manager shall consult with the Design Professional
and the Client if any Contractor requests interpretations of
the meaning and intent of the drawings and specifications, and
assist in the resolution of questions, which may arise.
2.2.17 The Program Manager shall receive certificates of insurance
from the Contractors, and forward them to the Client.
2.2.18 The Program Manager shall receive from the Contractors all shop
drawings, product data, samples and other submittals,
coordinate them with information contained in related documents
and transmit them to the Design Professional for approval. In
collaboration with the Design Professional, the Program Manager
shall establish and implement procedures for expediting the
processing and approval of shop drawings, product data, samples
and other submittals.
2.2.19 The Program Manager shall record the progress of the Project.
The Program Manager shall submit written progress reports to
the Client and the Design Professional including information on
each Contractor and each Contractor's Work, as well as the
entire Project, showing percentages of completion and the
number and amounts of change orders. The Program Manager shall
keep a daily log containing a record of Contractors' Work on
the site, number of workers, Work accomplished, problems
encountered, and other similar relevant data as the Client may
require. The Program Manager shall make the log available to
the Client.
2.2.20 The Program Manager shall maintain at the Project site, on a
current basis: a record copy of all Contracts, drawings,
specifications, addenda, change orders and other modifications,
in good order and marked to record all changes made during
construction; shop drawings; product data; samples; submittals;
purchases; materials; equipment; applicable handbooks;
maintenance and operating manuals and instructions; other
related documents and revisions which arise out of the
Contracts or Work. The Program Manager shall make all records
available to the Client. At the completion of the Project, the
Program Manager shall deliver all such records to the Client.
2.2.21 The Program Manager shall arrange for delivery and storage,
protection and security for Client-purchased materials, systems
and equipment which are a part of the Project, until such items
are incorporated into the Project.
2.2.22 With the Design Professional and the Client's maintenance
personnel, the Program Manager shall observe the Contractors'
checkout of utilities, operational systems and equipment for
readiness and assist in their initial start-up and testing.
2.2.23 When the Program Manager considers each Contractor's Work or a
designated portion thereof substantially complete, the Program
Manager shall prepare for the Client a list of incomplete or
unsatisfactory items and a schedule for their completion. The
Program Manager shall assist the Design Professional in
conducting inspections. The Program Manager shall coordinate
the correction and completion of the Work.
2.2.24 The Program Manager shall evaluate the completion of the Work
of the Contractors and make recommendations to the Design
Professional when Work is ready for final inspection. The
Program Manager shall assist the Design Professional in
conducting final inspections. The Program Manager shall secure
and transmit to the Client required guarantees, affidavits,
releases, bonds and waivers. The Program Manager shall deliver
all keys, manuals, record drawings and maintenance stocks to
the Client.
2.2.25 The Program Manager shall perform the Construction Phase
Services under this Section 2.2 as expeditiously as is
consistent with reasonable skill and care and the orderly
progress of the Project.
2.2.26 The extent of the duties, responsibilities and limitations of
authority of the Program Manager as a representative of the
Client during construction shall not be modified or extended
without the written consent of the Client, the Contractors, the
Design Professional and the Program Manager, which consent
shall not be unreasonably withheld.
3. CLIENT'S RESPONSIBILITIES
3.1 The Client shall provide full information regarding the Client's
requirements for its restaurant development program and, as
applicable, its requirements for specific Projects, including
information regarding the Client's objectives, constraints and
criteria, including space requirements and relationships, flexibility
and expandability requirements, special equipment and systems and site
requirements.
3.2 The Client shall designate a representative authorized to act in the
Client's behalf with respect to Client's restaurant program and for
specific Projects. The Client, or such authorized representative,
shall examine documents submitted by the Program Manager and shall
render decisions pertaining thereto promptly to avoid unreasonable
delay in the progress of the Program Manager's services.
3.3 The Client shall furnish such legal, accounting and insurance
counseling services as may be necessary for the Client's restaurant
program and for specific Projects, including such auditing services as
the Client may require to verify the Project applications for payment
or to ascertain how or for what purposes the Contractors have used the
monies paid by or on behalf of the Client.
3.4 The services, information and reports required by Sections 3.1 through
3.3, inclusive, shall be furnished at the Client's expense, and the
Program Manager shall be entitled to reasonably rely upon their
accuracy and completeness.
3.5 The Client shall furnish the required information and services and
shall render approvals and decisions as expeditiously as necessary for
the orderly progress of the Program Manager's services and the Work of
the Contractors.
4. PROGRAM MANAGER'S COMPENSATION AND PAYMENTS
4.1 PROGRAM MANAGEMENT SERVICES:
For Program Management Services (as described in Section 1), the
Client shall pay the Program Manager on the first of each month a
Monthly Retainer in the amount of Six Thousand ($6,000.00) Dollars.
The Monthly Retainer amount covers the Program Manager's normal office
overhead and compensation for the services of Xxxx X. Xxxxxxxxxx. In
addition to the Monthly Retainer, the Client shall reimburse the
Program Manager (at actual cost plus fifteen (15%) percent) for all
reimbursable costs incurred by the Program Manager in connection with
the performance of Program Management Services.
4.2 SERVICES FOR A SPECIFIC PROJECT:
For Services for a specific Project (as described in Section 2), the
Client shall pay the Program Manager on a monthly basis the sum of the
following:
(1) Amounts due to the Contractors, consultants and Suppliers under
Contracts, consultant agreements and purchase orders held by the
Program Manager on behalf of the Client with respect to the Project;
(2) Actual cost incurred by the Program Manager to provide General
Conditions items and other reimbursable cost items for the Project;
(3) Amount due for Program Manager's site personnel and other
personnel (other than Xxxx X. Xxxxxxxxxx) providing services in
connection with the Project; plus
(4) A Construction Management Fee in the amount of fifteen (15%)
percent of the amounts listed in Subsections (1) through (3) above.
Each month the Program Manager shall submit an invoice to the Client
for the amount due for Services performed for the Project during the
month, and the Client shall pay such amount to the Program Manager
within ten (10) days after receipt of such invoice.
4.3 COST RECORDS:
The Program Manager shall maintain cost records of Project costs and
shall make such records available to the Client or the Client's
authorized representative at mutually convenient times. At the request
of the Client, the Program Manager shall provide receipts and other
back-up documentation as reasonably required to substantiate the
amounts included in invoices submitted by the Program Manager under
Section 4.2.
5. INSURANCE
5.1 The Program Manager shall purchase and maintain Worker's Compensation
Insurance, Commercial General Liability insurance and Automobile
Liability Insurance coverage covering its activities under this
Agreement. At the time the Client issues an Authorization To Proceed
With Construction for a specific Project, the Program Manager shall
submit to the Client a certificate of insurance evidencing coverage
maintained by the Program Manager in connection with the Project in at
least the following amounts:
Worker's Compensation $ 100,000
Commercial General Liability $ 3,000,000
Automotive Liability $ 1,000,000
Excess Liability Coverage $ 1,000,000
The Client and the Client's landlord shall be named as additional
insured on Program Manager's policies (except Worker's Compensation).
5.2 With respect to each specific Project covered by an Authorization To
Proceed With Construction, the Client shall provide builder's risk
property insurance for the specific Project. The Client's property
insurance will not cover tools and equipment used during construction
but not incorporated in the completed Work. At the request of the
Client, the Program Manager will provide property insurance for a
specific Project, and the premium cost for such coverage will be
included in the General Conditions costs reimbursable to the Program
Manager under Section 4.2.
5.3 The Client and the Program Manager waive all rights against each
other, and against the Contractors, consultants, Suppliers, agents and
employees of the other, for damages covered by any property insurance
maintained in connection with construction. The Client and the Program
Manager shall each require appropriate similar waivers from their
Contractors, consultants, Suppliers and agents.
6. TERMINATION
6.1 The Client shall have the right to terminate this Agreement at any
time, with or without cause, upon ninety (90) days prior written
notice to Program Manager. In the event of such termination, the
Program Manager shall be entitled to receive (i) full payment of all
amounts due under Sections 4.1 and 4.2 for services performed as of
the effective date of termination; plus (ii) Contractor and Supplier
restocking and cancellation fees and similar termination expenses
incurred by Program Manager under Contracts and purchase orders held
by the Program Manager on behalf of the Client.
6.2 The Program Manager shall have the right to terminate this Agreement
with respect to the Program Management Services under Section 1, with
or without cause, upon ninety (90) days prior written notice to the
Client; provided, however, that at the request of the Client, the
Program Manager shall continue to perform Services with respect to
construction of a specific Project authorized by the Client under
Section 2.2 until the completion of construction of such Project. In
the event of termination of the Program Management Services under this
Section 6.2, the Program Manager shall be entitled to receive full
payment of all amounts due under Section 4.1 for Program Management
Services performed as of the effective date of termination.
6.3 The Program Manager shall have the right to terminate this Agreement
upon ten (10) days prior written notice to the Client in the event of
a substantial failure of the Client to perform the Client's
obligations under this Agreement and failure of the Client to correct
such substantial failure within such ten (10) day notice period. In
the event of termination of this Agreement under this Section 6.3, the
Program Manager shall be entitled to receive (i) full payment of all
amounts due under Sections 4.1 and 4.2 for services performed as of
the effective date of termination; plus (ii) Contractor and Supplier
restocking and cancellation fees and similar termination expenses
incurred by the Program Manager under Contracts and purchase orders
held by the Program Manager on behalf of the Client.
7. MISCELLANEOUS
7.1 Unless otherwise specified, this Agreement shall be governed by the
laws of the State of Michigan.
7.2 The Client and the Program Manager, respectively, bind themselves,
their partners, successors, assigns and legal representatives to the
other party to this Agreement, and to the partners, successors,
assigns and legal representatives of such other party with respect to
all covenants of this Agreement. Neither the Client nor the Program
Manager shall assign, sublet or transfer any interest in this
Agreement without the written consent of the other.
7.3 This Agreement represents the entire and integrated agreement between
the Client and the Program Manager with respect to the matters set
forth herein and supersedes all prior negotiations, representations or
agreements, either written or oral. This Agreement may be amended only
by written instrument signed by both the Client and the Program
Manager.
7.4 Nothing contained in this Agreement shall be deemed to give any third
party any claim or right of action against the Client or the Program
Manager which does not otherwise exist without regard to this
Agreement.
8. LIMITATION ON LIABILITY
8.1 Budgets and cost estimates prepared by the Program Manager represent
the Program Manager's best judgment as a professional familiar with
the construction industry. It is recognized, however, that neither the
Program Manager nor the Client has control over the cost of labor,
materials or equipment, over Contractors' methods of determining bid
prices or other competitive bidding or negotiating conditions.
Accordingly, the Program
Manager cannot and does not warrant or represent that bids or
negotiated prices will not vary from the Project budget proposed,
established or approved by the Client, or from any cost estimate or
evaluation or budget prepared by the Program Manager.
8.2 The Program Manager shall not be responsible for construction means,
methods, techniques, sequences and procedures employed by Contractors
and/or Suppliers in the performance of their Contracts and purchase
orders, and shall not be responsible for the failure of any Contractor
or Supplier to carry out Work in accordance with drawings and
specifications or other Contract requirements.
8.3 In no event shall the Program Manager or the Client be liable to the
other for special, incidental or consequential damages, including
without limitation, loss of profits, revenue or use of capital, claims
of customers, whether based on contract, tort, negligence, strict
liability or otherwise.
This Agreement entered into as of the day and year first written above.
CLIENT PROGRAM MANAGER
Big Buck Brewery & Steakhouse, Inc. Columbia Construction Services-Michigan,
Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------ -------------------------------------
Xxxxxxx X. Xxxxxxxx Xxxx X. Xxxxxxxxxx, CIT, CSI, CDT
Its: President/CEO Its: President
