AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER
for
CONSTRUCTION MANAGEMENT SERVICES
Agreement (this "Agreement") made as of the 1st day of November 1997,
between Tishman Construction Corporation of New Jersey (hereafter referred
to as "Construction Manager"), a New Jersey corporation, having offices at
00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000 and MAC,
CORP. Construction, a New Jersey corporation, having offices at 0000 Xxxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000 (hereinafter referred to as
"Owner").
WITNESSETH:
WHEREAS, Owner desires to retain Construction Manager in connection
with the construction by Owner of a Hotel/Casino and related infrastructure
and site development including roads which serve the facilities within
the "H-Tract" (hereinafter referred to as the "Improvement" or the
"Project"), on the premises owned by Owner adjacent to Xxxxx 00, Xxxxx
Xxxxxx and Brigantine Boulevard in Atlantic City, New Jersey (hereinafter
referred to as "Site"), and Construction Manager desires to be so retained.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Owner and Construction Manager agree as follows:
ARTICLE 1
CONSULTANCY
1.01. All services to be performed by Construction Manager prior
to commencement of construction of the Improvement (hereinafter referred to
as the "Consultancy") shall be performed as agent of Owner.
1.02. Construction Manager, during the Consultancy, shall, using
its best professional efforts, make available to Owner its knowledge,
skills, ideas, experience and abilities with respect to all matters related
to design, development and construction of the Improvement. The Consultancy
shall include consultation on overall site and building planning, guidance
in the preparation of Construction Documents by the project architects and
engineers, review, evaluation and refinement of the work of the architects
and engineers who have been, or are to be, selected by Owner (and in whose
selection Construction Manager will assist Owner as may be
EXHIBIT 10.3
requested), and preparation of construction schedules and budgets as
documents are developed, with recommendation for changes, where necessary,
to meet Owner objectives. The Consultancy shall commence on the effective
date hereof and shall continue until commencement of construction of
the Improvement.
ARTICLE 2
CONDUCT OF THE WORK
2.01. All services to be performed by Construction Manager
following the Consultancy (hereinafter referred to as the "Services") shall
be performed as agent of Owner.
2.02. Construction Manager, acting as agent for, and on behalf
of, Owner, will arrange to provide for Owner all labor, materials and
services for the general construction of the Improvement, in conformity
with plans and specifications (hereinafter referred to as "Construction
Documents"), prepared or to be prepared by Owner's architects, engineers
and other consultants. In such connection Construction Manager shall,
as directed by Owner, solicit bids, award contracts, purchase materials,
provide or arrange for necessary plant and equipment, employ, supervise,
coordinate and monitor necessary personnel (with power to employ or
discharge, fix and modify wages and compensation), prepare budget
estimates, programs and schedules as required, monitor and coordinate the
progress of work by, and negotiate final settlements (subject to Owner
approval) with all contractors and suppliers.
2.03. Owner shall approve all Costs contained in Section 4.05.
The Owner will establish monetary limits for disbursement of funds by
Construction Manager which will not require specific approval by Owner.
2.04. Construction Manager shall commence and continue the
Services using its best professional efforts with due diligence and in good
faith maintaining at all times sufficient personnel for the proper
prosecution of the Services.
2.05. Construction Manager's performance hereunder shall
terminate after it has completed the Services or upon earlier termination
of this Agreement pursuant to Article 11.
ARTICLE 3
ACCOUNTING AND AUDITING
3.01. Construction Manager will establish procedures for
accounting, auditing and rendering of statements of payment satisfactory
to Owner. Such procedures shall be prepared by the Construction Manager in
2
writing and submitted to the Owner for approval. The approved procedures
shall be followed during the Consultancy and the Services. All records of
Construction Manager relating to the Consultancy and the Services shall be
open to inspection and audit by Owner and its representatives at all
times. Upon completion of the Services, original copies of all records
(in whatever media prepared) of Construction Manager shall, on request of
Owner, and at Owner's expense, be prepared and delivered to Owner or other-
wise disposed of as Owner may direct.
ARTICLE 4
FEES
4.01. As full compensation to Construction Manager during the
Consultancy, Owner shall pay Construction Manager a fee of $50,000 per
month, adjusted to $125,000 per month following selection by Owner of
the Architect and determination of the Project Schedule (hereinafter
referred to as "Consultancy Fee"). The Consultancy shall commence on the
effective date hereof and shall continue until commencement of construction
of the Improvement. Commencement of construction of the Improvement shall
be defined as commencement of pile and foundation work.
4.02. Owner shall pay Construction Manager a fee equal to 1.80%
of the Cost of the Work for the Services (hereafter referred to as "Fee").
The Fee shall be paid monthly, proportional to the progress of the
Work. The Construction Manager will credit the full amount of the
Consultancy Fee against the payments of the Fee in proportion to work
completed.
4.03 The Fee shall be the entire compensation for Construction
Manager's Services, including main office overhead and items identified in
Section 4.06.
4.04 Items which are paid through or by the Owner and installed
under the direct supervision of Owner shall not be considered part of the
Cost of the Work for purposes of computing the Construction Manager's
Fee. Construction Manager shall coordinate all such work. Such items
include but are not limited to: Architects and Consultants, Owner FF&E,
Separate Contractors, Owner internal costs and overhead, project insurance
premiums, landscaping and other similar items.
4.05. The costs of the Work (hereinafter referred to as "Cost")
shall be paid as follows:
3
(a) During the Consultancy:
The following items shall be paid at actual cost and
are in addition to the Consultancy Fee:
(1) Compensation of project managers, estimators,
contract and EEO administrators, purchasing agents and
others assigned directly to the job on a full-time basis
as authorized by Owner.
(2) Reimbursable expenses such as blueprints, long
distance and mobile phone calls, travel expenses while in
New York and New Jersey (only during Consultancy), and
other expenses which may be authorized by the Owner.
(3) Expense of lodging and meals while conducting
business outside of New York and New Jersey. When in Las
Vegas, lodging and meals will be provided at hotel
facilities owned by Owner's affiliates.
(b) During the Services:
The following items shall be paid at actual cost and are
not considered Cost of the Work for the purpose of
computing the Construction Manager's Fee.
(1) Compensation of Project Executive.
(2) Relocation expenses (includes temporary subsistence)
incurred by Construction Manager's employees. Relocation
expenses shall be limited to: moving expenses, temporary
lodging and transportation expenses. Meals will not be
reimbursed. Living expenses incurred by Construction
Manager's employees after relocation has been completed
shall not be reimbursed. All relocation expenses must be
pre-approved by the Owner.
(3) Federal, state, municipal or other taxes within New
Jersey based upon labor performed and material furnished,
including, sales, and fees for permits and licenses
(excludes any taxes based on the corporate gross receipts,
profits or net income of Construction Manager and
professional fees).
4
(4) Premiums on insurance paid by Construction Manager.
All such premiums must be submitted to the Owner for
approval prior to placement of such insurance.
(5) Reimbursable expenses such as telephone service,
telegrams, facsimile, delivery charges, postage, blue-
prints, printing, photographs, field office supplies,
stationery, travel outside of greater New York City and
Atlantic County or Trenton, New Jersey while conducting
business and other expenses which may be authorized by the
Owner.
(6) Expense of lodging and meals while conducting
business outside of greater New York City and Atlantic
County or Trenton, New Jersey. When in Las Vegas, lodging
and meals will be provided at hotel facilities owned by
Owner's affiliates.
(7) Counsel fees and legal expenses incurred by Con-
struction Manager in connection with any matter arising
out of the Services, except for matters related in
any manner to this Agreement or the creation of any
other contracts with the Owner. All fees and expenses must
be pre-approved by Owner.
The following items shall be paid at actual cost and are
considered Cost of the Work for the purpose of computing
the Construction Manager's Fee:
(8) Wages of full-time labor directly on Construction
Manager's field payroll. "Field" for the purpose of this
Agreement is defined to be at or on the Site.
(9) Compensation of Construction Manager's employees
stationed at the field office including project managers,
general superintendents, superintendents, accountants,
estimators, contract and EEO administrators, purchasing
agents and other employees, whose full-time or part-time
services are required at the field office solely for the
purpose of the Project.
(10) Payroll taxes and contributions for Federal old age
benefits, unemployment insurance, disability insurance,
family leave or other employee benefits required by law,
as well as welfare funds, pension funds, individual
medical, dental and hospitalization benefits, bonuses, and
5
vacation costs proportional to the amount of service
on the Project in that calendar year. All bonuses must
be pre-approved by the Owner.
(11) The net cost of all materials, whether for
permanent or temporary use, including cost of inspection,
testing, transportation, storage and handling.
(12) Tools, equipment and services required for the
Services; water, power and fuel; winter protection;
surveys, soil and other investigations; protection and
repair of adjoining property; rental of property for
storage, field office and other purposes; royalties
for patents that may be involved in the Services.
(13) Rental of tools and equipment or parts thereof,
whether rented from Construction Manager or others; and
transportation of said tools or equipment, including
loading, unloading, installing, dismantling and removal
thereof, made necessary by use on the Improvement. All
tool and equipment rental expenses must be pre-approved by
the Owner.
(14) All contracts and purchase orders let in connection
with the Services.
(15) Reconstruction or repairs resulting from damage to
the Improvement, whether or not covered by insurance.
4.06. Costs shall not include and Construction Manager shall
not be reimbursed for:
(a) Services of Construction Manager's executive management
and compensation thereof (except for Project Executive).
(b) Services of Construction Manager's consulting division
personnel, including architectural, structural mechanical
and department heads and their staffs.
(c) Services of Construction Manager's corporate officers.
(d) Services of Construction Manager's insurance department.
6
(e) Cost of Construction Manager's payroll robbery and general
fidelity insurance and any losses sustained by Construc-
tion Manager in connection with theft and robbery caused
by the defalcation of Construction Manager's employees.
(f) Cost of payroll preparation, computer services, T-Com
Report or any other corporate expense or service.
(g) Administrative or general overhead expense in connection
with the operation of any of Construction Manager's
offices other than the field office.
4.07. All trade discounts or cash discounts earned through
advance or prompt payment, proceeds from insurance, the sale of
surplus materials and equipment and the fair market value of any
tools, supplies or equipment, and to the extent permitted by law,
fees, commissions and gratuities received by Construction Manager,
or any subsidiary or affiliate, in connection with the Services shall
be for the benefit of Owner and shall reduce the Cost. Request
for payment of discounts may be submitted to the Owner for
reimbursement on an as-needed basis.
4.08. If any liens or encumbrances upon the subject property
shall occur, Owner shall promptly be given notice thereof by
Construction Manager and Owner shall satisfy, contest or discharge
or otherwise provide for same. If a lien or encumbrance has been
made by, or as a result of, a trade contractor or vendor,
Construction Manager shall require such trade contractor or vendor
to promptly satisfy and discharge such lien or encumbrance.
ARTICLE 5
AGENCY BANK ACCOUNT AND MONTHLY PAYMENT
5.01. Within thirty (30) days of commencement of the Services,
Owner will establish an interest-bearing bank account in the name of
Construction Manager as "Agent". All funds (including earnings) shall,
at all times, be the property of Owner and shall be drawn upon and
disbursed by Construction Manager in accordance with the approved
accounting procedures pursuant to Article 3. The purpose of this account
will be to pay all obligations, commitments, costs and liabilities made
or incurred by Owner or on Owner's behalf in connection with the prosecu-
tion of the Services. Such account is hereafter called the "Agency Bank
Account."
5.02. Upon the establishment of the Agency Bank Account,
Owner shall make an initial deposit of $150,000 and shall maintain such
7
amount until completion of the Services. The Owner shall provide
sufficient funds to enable Construction Manager to pay when due all
obligations incurred by Owner or on Owner's behalf in connection with the
Services. It is understood that Construction Manager shall not be
required to expend its own funds for payment of out-of-pocket costs, fees
or expenses in connection with the Services.
5.03. On or about the tenth (10th) day of each month, Construc-
tion Manager will submit to Owner a requisition in a form satisfactory
to Owner for obligations incurred in connection with the Services up
to the last day of the previous month, including Construction Manager's
Fee. Within fifteen (15) calendar days after receipt of such requisition,
Owner shall make payment to Construction Manager, by payment directly
into the Agency Bank Account, whereupon Construction Manager shall promptly
thereafter make the necessary disbursements of such funds.
5.04. The balance of any Fee or reimbursement for Costs owing
Construction Manager under the terms of this Agreement shall be due and
payable within sixty (60) days after Substantial Completion (including
Final Certificate of Occupancy) of the Improvement, less Fees applicable
to remaining punch list Work.
ARTICLE 6
CONSTRUCTION BUDGET AND CHANGES IN THE WORK
6.01. The Owner and Construction Manager will establish
construction cost limits for the Project (hereafter referred to as
"Construction Budget"). The Construction Manager will use its best
professional efforts and expertise in purchasing and project administra-
tion to maintain the Construction Budget. The Owner acknowledges that
the Construction Budget may change as Construction Documents are developed,
refined and/or revised. All increases in the Construction Budget will
require written approval by the Owner. The Owner shall at all times
designate an individual who is authorized to provide such written approval.
It shall be a condition precedent to the Owner's obligation to pay for any
increases in the Construction Budget that the Construction Manager shall
have obtained prior written authorization from Owner. The Construction
Manager agrees that if it proceeds with any such increases prior to
receiving written authorization to do so, it proceeds at its own risk, cost
and expense.
8
ARTICLE 7
INSURANCE
7.01. During the Consultancy, the Construction Manager shall
procure and maintain insurance coverage commensurate with the services
performed by the Construction Manager during the Consultancy. The cost
of all such insurance during the Consultancy shall be paid by the
Construction Manager.
7.02. If the Owner has not obtained a "Wrap-Up" Insurance
Policy thirty (30) days prior to commencement of Services, the Construction
Manager shall procure insurance coverage at the limits set forth herein.
Insurance coverage shall be for the benefit of the Owner and Construction
Manager. Premiums shall be paid by the Owner and must be pre-approved by
the Owner prior to placement of such insurance coverage.
A. Commercial General Liability coverage with a
$100,000,000 each occurrence and $100,000,000 Per Location
Aggregate Limit covering the liability of Construction
Manager for Bodily Injury and Property Damage arising as
a result of the construction of the Improvement and the
Services performed hereunder. The coverage shall include:
- Blanket Contractual Liability
- Completed Operations (continued for at least 3 years)
- Broad Form Property Damage
- "XC & U" Coverage
- Personal Injury
- Employees of Construction Manager as Additional
Insureds
- Claims made coverage is not acceptable
B. Worker's Compensation and Employer's Liability
coverage as required by law, covering employees of
Construction Manager performing work on the Improvement.
Coverage to include all subcontractors of every tier with
contracts over $5,000.
C. Automobile Liability coverage with a $100,000,000
Combined Single Limit, covering Owned, Non-Owned and
Hired Vehicles used in connection with the Improvement by
Construction Manager.
9
D. Contractors Pollution Liability coverage with
$25,000,000 Each Loss and $50,000,000 Aggregate.
a. Bodily Injury, sickness, disease, mental anguish
or shock sustained by any person, including death;
b. Property Damage including physical injury to or
destruction of tangible property including the
resulting loss of use thereof, clean-up costs, and
the loss of use of tangible property that has not
been physically injured or destroyed;
c. Defense including costs, charges and expenses
incurred in the investigation, adjustment or defense
of claims for such compensatory damages;
7.03. In no event shall the limits of coverage be less than that
contained herein unless both parties are unable to secure such limits and
both parties agree to lower limits. In case of property loss, Construction
Manager, on behalf of Owner, will negotiate and settle claims subject to
Owner's approval. Owner and Construction Manager hereby mutually
agree to waive rights of subrogation against each other.
7.04. If requested by Owner, Construction Manager will assist
Owner in obtaining a "Wrap-Up" Insurance Policy relating to commercial
general liability and pollution liability coverage, workers' compensation
and builder's risk coverage to protect the interests of Owner, Owner's
separate contractors, Construction Manager and trade contractors on the
Project. Each individual trade contractor shall provide automobile
liability coverage and disability coverage. All cost associated with the
"Wrap-Up" Insurance Policy shall be paid by the Owner.
7.05. All insurance coverage for the Project shall name Con-
struction Manager, Mirage Resorts, Incorporated, Atlandia Design and
Furnishings Inc., MAC, CORP., MAC, CORP. Construction, New City
Development and their respective parents, and all other subsidiaries,
affiliates, employees, officers, directors and consultants of each of
them, as Additional Insureds named under this agreement.
ARTICLE 8
ASBESTOS AND HAZARDOUS WASTE REMOVAL
8.01. It is the Owner's sole responsibility to directly
contract for the removal, transport, and disposal of all asbestos and
10
hazardous waste from the Site. Construction Manager shall bid and recommend
to Owner an award for both the asbestos and hazardous waste survey and
monitoring agency, as well as the removal agency. The survey and monitoring
agency shall be directly responsible to the Owner for the monitoring and
supervision of all asbestos and hazardous waste removal. Construction
Manager shall in no way be responsible for supervision and monitoring
or compliance with respect to the Work of removing, transporting, or
disposing of the asbestos or hazardous waste as performed by Owner's
contractor, and Owner shall defend, indemnify and hold Construction
Manager harmless from all claims, if any, resulting from the existence
and/or removal of asbestos and hazardous waste. This indemnification
shall survive termination of this Agreement. All services performed by
Construction Manager for site remediation will be provided under separate
agreement.
ARTICLE 9
ASSIGNMENT
9.01. Neither this Agreement nor any interest herein, nor any
claim hereunder, shall be assigned or transferred by either party without
the written consent of the other party in its sole direction, except that
Owner may assign its interest in this Agreement and all rights accruing
hereunder to a construction lender or affiliated company of Owner and
Construction Manager may assign its interest in this Agreement and all
rights accruing hereunder to its parent, affiliate or subsidiary with the
written approval of the Owner, which approval shall not be unreasonably
withheld.
ARTICLE 10
INDEMNITY
10.01. To the fullest extent permitted by law, the Construction
Manager shall indemnify and hold harmless the Owner, Mirage Resorts,
Incorporated, MAC, CORP., MAC, CORP. Construction, Atlandia Design and
Furnishings Inc., New City Development and all other subsidiaries,
affiliates, employees, officers, directors and consultants of the Owner
from and against claims, damages, losses and expenses, including but not
limited to attorney's fees, arising out of or resulting from performance
of the Work or Construction Manager's services hereunder, provided that
such claim, damage, loss or expense is attributable to bodily injury,
sickness, disease or death, or to injury to or destruction of tangible
property (other than the Work itself), but only to the extent caused by the
negligent acts or omissions of the Construction Manager, anyone directly
11
or indirectly employed by it (but not including trade Contractors or
Vendors with whom Construction Manager has entered an agreement as Agent of
Owner) or anyone for whose acts it may be liable, regardless of whether or
not such claim, damage, loss or expense is caused in part by a party
indemnified hereunder. Such obligation shall not be construed to negate,
abridge, or reduce other rights or obligations of indemnity which would
otherwise exist as to a party or person described in this Paragraph 10.01.
10.02. To the fullest extent permitted by law, the Owner shall
indemnify and hold harmless the Construction Manager and all subsidiaries,
affiliates, employees, officers, directors and consultants of the Construc-
tion Manager from and against claims, damages, losses and expenses,
including but not limited to attorney's fees, arising out of or resulting
from performance of the Work hereunder, provided that such claim, damage,
loss or expense is attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of tangible property (other than
the Work itself), but only to the extent caused by the negligent acts
or omissions of the Owner, anyone directly or indirectly employed by it
(but not including the Construction Manager, or any of the Construction
Manager's agents or employees) or anyone for whose acts it may be liable,
regardless of whether or not such claim, damage, loss or expense is caused
in part by a party indemnified hereunder. Such obligation shall not be
construed to negate, abridge, or reduce other rights or obligations of
indemnity which would otherwise exist as to a party or person described in
this Paragraph 10.02.
10.03. In claims against any person or entity indemnified under
Article 10 by an employee of the Construction Manager, anyone directly
or indirectly employed by it or anyone for whose acts it may be liable,
the indemnification obligation under Paragraph 10.01 shall not be limited
by a limitation on amount or type of damages, compensation or
benefits payable by or for the Construction Manager under worker's
compensation acts, disability benefit acts or other employee benefit acts.
ARTICLE 11
TERMINATION
11.01. In the event Owner notifies Construction Manager of
its decision not to commence construction of the Improvement, which
decision Owner may make in its sole discretion for any or no reason,
the parties agree as follows: (a) Construction Manager shall discontinue
the Consultancy forthwith, and (b) Owner shall pay to Construction Manager
the cost of all direct expenses (including, without limitation, the items
set forth in Section 4.05(a) hereof) and a pro-rata share of the
Consultancy Fee up to the date of termination.
12
11.02. If either party shall default in the performance of this
Agreement and shall fail to cure such default within (20) twenty days
(ten days in the case of a default by Owner in the making of timely
payment of Construction Manager's requisitions as provided in Section
5.03) after receipt of notice from the other party specifying the default,
the party not in default, in addition to any other remedies provided here-
under, at law or in equity, including the imposition of liens, may
terminate this Agreement by notice to the defaulting party given within
ten (10) days after the foregoing grace period. Further, Construction
Manager shall be entitled to payment of interest at the rate of 1/2% per
annum above the prime or reference rate of Bank of America, Las Vegas,
Nevada, on all amounts due by Owner to Construction Manager hereunder from
the date when due except for amounts disputed in good faith between Owner
and Construction Manager.
11.03. If either party should be adjudged a bankrupt or should
make a general assignment for the benefit of its creditors or should file
a petition for arrangements with creditors or for reorganization, or if
a receiver should be appointed on account of its insolvency, said event
shall be deemed a default by said party and, in addition to any other
remedies provided hereunder, at law or in equity, including the imposition
of liens, the other party may terminate this Agreement at any time there-
after on notice to the defaulting party.
11.04. Should Owner abandon or discontinue construction of
the Improvement for more than one hundred twenty (120) consecutive days
or should construction of the Improvement be stopped under an order of
any court or other public authority for a period of (6) six consecutive
months through no act or fault of Construction Manager or of any of its
employees or representatives, then notwithstanding Section 11.02, Con-
struction Manager, on (15) fifteen days notice to Owner specifying the
reason therefor, may terminate this Agreement, unless the reason for
such termination is cured within such (15) fifteen day period, except
that if such abandonment or discontinuance of construction is caused by any
strike, riot, act of God, or other event of force majeure or cause beyond
the reasonable control of Owner (financial inability of Owner not
being a cause beyond its control), Construction Manager shall not be
entitled to terminate this Agreement unless a period of (6) six months
shall elapse from the date of the abandonment or discontinuance of
construction. Any such abandonment or discontinuance, for whatever reason,
shall not constitute a default by Owner.
11.05. Upon any termination of this Agreement under Section 11.04
above, or upon default of either party under Section 11.02 or 11.03,
Construction Manager shall:
13
(a) Discontinue all Services on a date to be agreed upon
and make no further commitments except as may be necessary for completion
of Work to ensure the facilities or the site are free of hazards to the
public.
(b) Cancel to the extent permissible, or if so directed
by Owner, transfer to Owner all commitments and agreements relating to
the Services.
(c) Transfer to Owner, in the manner, to the extent and
at the time directed by it, the completed and uncompleted Work, supplies,
materials and other property produced as a part of or acquired in the
performance of the Services.
(d) Take action as Construction Manager may deem
necessary, or as Owner may direct, for the protection of property
which is in the possession of Construction Manager and in which Owner
has or may acquire any interest.
(e) Deliver to Owner all original files and records.
(f) Deliver to Owner all original construction budgets
and schedules.
11.06. Upon any termination of this Agreement, Owner, or Con-
struction Manager on behalf of Owner, shall pay and satisfy all
obligations which have been made or incurred by Owner or on Owner's behalf
in connection with the Services through the date of such termination.
ARTICLE 12
PROJECT REPRESENTATIVES
12.01 Owner designates Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxxx as
Owner Representatives under this Agreement. Owner Representatives shall
have the right to act for Owner in all matters relating to this Agreement
and Owner shall be bound by any consents or approvals given by any Owner
Representative. The Owner may designate other Owner Representatives from
time to time by written notice to Construction Manager.
12.02 Construction Manager designates Xxxxxxx X. Xxxxxxxx as
Project Executive under this Agreement. The Project Executive shall have
the right to act for Construction Manager in all matters relating to this
Agreement and Construction Manager shall be bound by any consents or
approvals given by the Project Executive. The Project Executive will
be assigned on a full-time basis during the Consultancy and Services per-
forming duties from New York and New Jersey until major trades are
awarded. After such time all duties will be performed at the Construction
Manager's Field Office in New Jersey. The Construction Manager shall not
14
reassign the Project Executive without prior written approval from the
Owner.
12.03. Construction Manager shall submit a Management Staffing
Plan to the Owner for approval no later than sixty (60) days prior to
commencement of Services. Any revisions to the approved Management
Staffing Plan shall be submitted to the Owner for approval.
ARTICLE 13
MISCELLANEOUS
13.01. All notices required or permitted to be given pursuant to
this Agreement shall be in writing and shall be deemed validly given if
sent by United States certified mail or overnight commercial delivery
service, addressed to the parties as follows:
OWNER: MAC, CORP. Construction
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, President or
Xxxxxxx X. Xxxxx, Vice President
CONSTRUCTION
MANAGER: Tishman Construction Corporation of New Jersey
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, President or
Xxxxxxx X. Xxxxxxxx, Executive Vice President
Notices sent by United States certified mail shall be deemed to
have been received on the fourth day following deposit in a United
States Post Office. Notices sent by overnight commercial delivery service
shall be deemed to have been received on the next business day following
deposit with such delivery service.
13.02 The captions and headings herein contained are for conven-
ience only and shall in no way modify or limit the terms, provisions or
conditions hereof.
13.03. This Agreement constitutes the entire contract between the
parties and supersedes all prior written or oral negotiations and agree-
ments. No provisions of this Agreement shall be changed or modified,
nor shall this Agreement be discharged, in whole or in part, except by
an agreement in writing signed by the party against whom the change,
15
modification or discharge is claimed or sought to be enforced. No waiver
of any of the conditions or provisions of this Agreement or of any of
the rights of either party hereunder shall be effective or binding unless
such waiver shall be in writing and signed by the party claimed to have
given, consented to or suffered the waiver.
13.04. If Owner requests Construction Manager to perform the
Work of any trade, such as concrete work, and Construction Manager so
agrees, then Owner shall pay to Construction Manager, as a Cost of the
Work, a fee of four percent (4%) of the Cost of such Work plus the extra
cost of insurance, if any, required to be carried by Construction
Manager. Reimbursement shall be made to Construction Manager as though
the monies were due to Construction Manager in the capacity of an
independent trade contractor and Construction Manager shall, with respect
to such Work, additionally have all rights and obligations of an indepen-
dent trade contractor.
13.05. Notwithstanding any other provision in this Agreement to
the contrary, the parties agree that this Agreement shall not be con-
strued, in part or in whole, to give rise to any rights, claims or benefits
to any person, firm or entity other than the signatories to this Agree-
ment. There are no third-party beneficiaries to this Agreement and no
terms or provisions of this Agreement may be enforced by or for the
benefit of any person or party not a signatory to this Agreement. Nothing
contained herein shall be deemed to create any partnership or other
relationship between Owner and Construction Manager other than that of
principal and agent.
13.06. This Agreement shall be governed by the laws of the State
of New Jersey.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the date first above written.
MAC, CORP. Construction (Owner) Tishman Construction Corporation of
New Jersey (Construction Manager)
By: XXXXXXX X. XXXX By: XXXXXX X. XXXXXXX
--------------- -----------------
Xxxxxxx X. Xxxx Xxxxxx X. Xxxxxxx
President President
16
