EXHIBIT 10.1
Property Management Services Agreement
made effective as of the First day of January in the year of Nineteen Hundred
and Ninety Seven by and between
The Chase Manhattan Bank ("Chase")
Facilities Management
2 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Axiom Real Estate Management, Inc. ("Axiom")
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
WITNESSETH:
Whereas, Chase for itself and on behalf of its Parent, subsidiaries and
affiliates, and Axiom wish to enter into an Agreement providing for the
furnishing of services by Axiom to Chase in/at the premises owned/leased by
Chase set forth in Exhibit A attached hereto and incorporated herein (the
"Properties"); and
Whereas, Contractor and Chase wish to formalize the terms and conditions of such
Agreement and place them in one written document.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained and in accordance with Axiom's Proposal dated July 11, 1996 modified
as agreed, the parties agree as follows:
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ARTICLE I
AXIOM'S SERVICES AND
RESPONSLBILLTLES
Chase hereby appoints Axiom to assist in the management of the Properties set
forth in Exhibit A.
Axiom shall use its best efforts to manage the various Properties in accordance
with the provisions of this Agreement. In carrying out the services required by
this Agreement, Axiom shall at all times exercise the care, skill and diligence
exercised by prudent and experienced property managers.
Axiom is responsible to assist Chase in its management, coordination and
supervision of the operation, maintenance and management of the Properties in a
manner consistent with industry standards compatible with first class office
buildings in New York City.
To the maximum extent practicable, Axiom shall maintain such standards in
accordance with the Annual Plan agreed to between Chase and Axiom.
1.1 BASIC SERVICES
Axiom's Basic Services consist of the services set forth below and those
services stated in Article 16 as Basic Services.
1.1.1 Develop an overall plan to effectively manage the maintenance and
operations of each Property within thirty (30) days (the "Plan). This Plan
shall include (i) a staffing plan detailing on-site employee positions
(including detailed job descriptions and salary ranges for employees selected to
fill key operating positions) which Axiom deems necessary for the proper
operation, maintenance and management of the Properties (hereinafter Employees
of the Properties).
Once approved in writing by Chase, Axiom shall implement the Plan. Axiom shall
alter or change this Plan as needed to meet the changing needs of the
Properties. It is understood and agreed that the number of and positions of
Employees of the Properties shall be subject to change during the term of this
Agreement as mutually agreed by and between Axiom and Chase.
1.1.2 To the extent Axiom deems it necessary for the proper operation,
maintenance and management of the Properties, Axiom shall select, assign, hire
and supervise Employees of the Properties who, in each instance, shall be
employees of Axiom or one of Axiom's affiliates or subsidiaries (and not of
Chase). Axiom shall train, direct and supervise all Employees of the Properties
in the performance of their duties. In addition, prior to assignment to Chase's
Properties of Employees of the Properties, Axiom will assure processing and
compliance with Chase's requirements for any individual assigned to work on
Chase's premises. These requirements are subject to all applicable statutes,
ordinances, rules, and regulations and not violative of any collective
bargaining agreement and are set out in Exhibit C (as the same may be amended
from time to time by Chase on notice to Axiom (the "Chase Requirements"). Chase
Requirements may be amended by Chase from time to time.
1.1.2.1 Axiom shall perform this Agreement in the following manner:
(i) Axiom agrees that at all times herein, from and after the effective
hire date of any Employees of the Properties, it will be the employer of the
Employees of the Properties in the performance of this Agreement, except to the
extent that it utilizes, hires or contracts agents, sub-contractors, servants or
any other third party to assist it in the performance of all or any part of the
Basic Services (hereinafter collectively referred to as "Others retained by
Axiom"). Such Employees of the Properties and Others retained by Axiom shall
not be considered to be the agents or employees of Chase for any purpose
whatsoever. Chase shall be advised of, and shall have the right to request
reassignment of any such Employees of the Properties or Others retained by Axiom
to perform
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any of the Basic Services, and it is expressly understood that Chase's exercise
of its discretion to seek reassignment of any such Employees of the Properties
or Others retained by Axiom is not intended to affect the employment or
employmentability of any such Employees of the Properties or Others retained by
Axiom and such request shall be advisory in nature only. All Basic Services
performed by Employees of the Properties or Others retained by Axiom, must
conform to the level of technical expertise and performance maintained by Chase.
(ii) The manner and means of accomplishing all the Basic Services shall be
entirely under the direction and control of Axiom; PROVIDED, HOWEVER, that Axiom
shall collaborate with Chase or its employees or agents when Chase determines
the circumstances warrant and shall notify Chase of circumstances where policy
issues may be of particular sensitivity or concern to Chase; and further
PROVIDED, HOWEVER, that Chase may, at any time and without articulating or
demonstrating any reason, request reassignment of Employees of the Properties or
Others retained by Axiom assigned to perform Basic Services subject to the terms
of any applicable collective bargaining agreements. Axiom will be solely and
entirely responsible for acts of Employees of the Properties, and Others
retained by Axiom that Axiom supervises during the terms of this Agreement.
(iii) The execution of this Agreement shall not create the relationship of a
partnership or joint venture by and between Chase and Axiom.
1.1.2.2 Axiom shall at a minimum: (i) pay all wages and other benefits
properly payable to Employees of the Properties hired by Axiom, (ii) maintain
proper payroll records, (iii) remit to the proper authorities all required
income and social security withholding taxes, unemployment insurance payments,
workmen's compensation payments, sales tax (if applicable), and such other
amounts with respect to wages and other benefits payable to such Employees of
the Properties as may be required under applicable laws, together in each case
with all required reports or other filings, (iv) remit to all Employees of the
Properties IRS W2 forms and any other statements required by applicable laws,
within the time periods required by such laws, and (v) obtain, maintain and
administer all medical, disability and other insurance benefits and other fringe
benefits as may from time to time be required under any union or other
agreements or arrangements pertaining to Axiom's employment of such Employees of
the Properties.
1.1.3 Within forty-five (45) days after the commencement of this
Agreement, Axiom shall develop a preventive maintenance schedule for each piece
of equipment in the Properties and thereafter shall maintain and supervise such
schedules.
Axiom shall cause such ordinary and necessary repairs to be made to the
Properties and all equipment and systems located in or servicing the Properties
as shall be necessary or advisable for proper operation and maintenance.
Notwithstanding the cost limitations set forth herein, Axiom shall cause to be
made all repairs which are immediately necessary for the preservation or
protection of the Properties or the safety of users, tenants and other persons
in or on the Properties, or are otherwise immediately required to avoid the
suspension of any necessary services in the Properties without Chase's prior
approval and without limitation as to cost, provided, however, that in each such
instance Axiom shall (i) before causing any such emergency repair to be made,
use reasonable efforts under the circumstances to notify Chase of the emergency
situation and obtain Chase's approval of such repair, and (ii) immediately after
such emergency repair, fully apprise Chase in writing of the emergency and the
repairs made and account to Chase for the costs thereof.
1.1.4 Develop and maintain a system of dealing with service requests
and complaints from the users and/or tenants, including a method to ensure that
each building management function has been satisfied. Once approved by Chase,
Axiom shall implement the system.
Axiom shall use its best efforts to attend to and resolve all complaints of the
users and/or tenants of which Axiom shall become aware and shall attempt to
resolve any complaints, disputes or disagreements by or among users/tenants.
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1.1.5 Develop a system of quality control inspections to ensure that
contracted services as well as in-house manpower services are being performed in
a first-class manner. Once approved by Chase, Axiom shall implement the system.
1.1.6 Develop and maintain a Building Management Manual for each
Property. At a minimum, this manual should include procedures and telephone
numbers for service requests, emergency notification lists, actions to be taken
in the event of fire, flood, other natural disasters and first-aid procedures
including location of emergency equipment and such other items as may be
directed by Chase.
1.1.7 Develop and maintain a system for ensuring compliance with all
Federal, State and Local statutes applicable to the services being provided
under this Agreement.
1.1.8 Ensure that all licenses necessary to operate each facility are
held by individuals or staff members as required by law. Axiom shall
immediately notify Chase in writing of its inability to obtain any such license
or permit.
Notwithstanding the cost limitations set forth herein, Axiom may, without
Chase's prior written approval, take or cause to be taken any such actions
without limitation as to cost if failure to do so immediately would or might, in
Axiom's reasonable judgment, expose Chase or Axiom to criminal liability,
provided, however, that in each such instance Axiom shall, before taking or
causing to be taken any such action, use Axiom's best efforts under the
circumstances to notify Chase of the need for such action and obtain Chase's
approval. Axiom and Chase shall each promptly notify the other of any
violation, order, rule or determination affecting the Properties of any
governmental authority or Board of Fire Underwriters or similar agency.
1.1.9 Interface as needed with Chase's project management staff and any
independent contractors retained by Chase or its construction managers on
capital projects.
Axiom shall plan and coordinate the moving in and moving out of the
users/tenants in the Properties at the option and direction of Chase, in order
to ensure a minimum of disturbance to the operation of the Properties and to
other users/tenants then occupying or preparing to occupy space in the
Properties.
1.1.10 Interface with Chase's security staff ensuring building
management participation as necessary in the security process.
1.1.11 Continuously keep Chase advised of methods for lowering occupancy
costs by recommending upgrading/changing equipment, energy conservation, or
contracting methods.
1.1.12 Evaluate service contracts versus "in-house" manpower with
performance and economy as major concerns.
Within thirty (30) days of Axiom's receipt of any service and maintenance
contract for the Properties, Axiom shall provide Chase with a written analysis
of such contracts, including Axiom's recommendations with respect to the rebid,
restructuring or elimination of any or all of such contracts. If Chase shall
decide to rebid any such contract then, within thirty (30) after Chase advises
Axiom of such decision, Axiom shall complete and submit to Chase a proposed bid
package for same.
From time to time during the term of this Agreement, Chase can require Axiom to
rebid any or all of the service and maintenance contracts, in which case the
foregoing procedure shall be applicable.
Service contracts are to include a thirty (30) day cancellation clause
exercisable by Chase. All service contracts shall be between Chase and the
Vendor (unless otherwise agreed between Chase and Axiom to be between Axiom and
the Vendor); Axiom will administer these contracts (including payment of all
invoices).
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1.1.13 Within sixty (60) days after the commencement of this Agreement
and on or before July 1 of each year thereafter during the term of this
Agreement, Axiom shall prepare and submit to Chase, for Chase's review and
approval, a comprehensive written plan ("Annual Plan") setting forth the program
planned by Axiom for the operation, maintenance and management of the Properties
during the next following calendar year (or portion thereof in the case of the
first Annual Plan). Each Annual Plan shall be prepared in a format requested by
Chase and shall contain at a minimum (i) a proposed budget for each Property
with a comparison of the previous year's "estimated actual" versus budget for
the Plan year, (ii) an analysis of major changes in expenses, previous year vs.
Plan year, (iii) cost per square foot comparison by category, (iv) a full
narrative for each budget category, (v) annual operating budget schedules, (vi)
capital improvements narrative, (vii) cash requirements by month, and (viii)
such other information as may be reasonably requested by Chase.
As part of each Annual Plan, Axiom shall prepare and submit for Chase's approval
a pro forma budget in form satisfactory to Chase, setting forth anticipated
expenditures (capital, operating and other) pertaining to the Properties. The
proposed budget shall also include explanatory notes where any item varies
materially from the corresponding item in the previous year's budget or where
any item was not included in the last year's budget or where an item so included
has been excluded from the proposed budget.
Axiom shall manage the Properties consistent with and subject to the cost
limitations set forth in the approved Annual Plan.
Axiom shall make such reasonable modifications to each proposed budget as may be
requested by Chase from time to time.
1.1.14 Develop a system to receive, process and pay all properly
documented and approved invoices for all services required to operate and
maintain the facilities in a first class condition.
Obtain prior approval for all invoices exceeding $10,000 except for payment of
previously approved service contracts, i.e. monthly cleaning, HVAC, etc.
This system must ensure purchasing efficiency and provide a readily auditable
"trail" acceptable to Chase. This system also includes creation of an imprest
account for needed disbursements. Once approved by Chase, Axiom shall implement
the system.
Axiom shall establish and maintain proper, complete and current books and
accounts, records and other documentation (collectively "Records") pertaining to
the operation and maintenance of each of the Properties in the manner specified
by Chase from time to time, and same shall be available for inspection by Chase
and their authorized representatives during normal business and at other
reasonable times upon reasonable notice. The Records shall be the property of
Chase and shall be delivered to Chase immediately upon the termination of this
Agreement without any payment or additional consideration to Axiom.
1.1.15 Axiom shall open and maintain, in Axiom's name, an account or
accounts (collectively, "Operating Accounts") in a Chase Branch Bank in the type
of account or accounts designated from time to time by Chase. Axiom shall make
only those withdrawals from the Operating Accounts as necessary to pay the
Reimbursable Costs when due in accordance with this Agreement. All funds
deposited in the Operating Accounts and any interest thereon shall be and remain
Chase's property. All other withdrawals by Axiom from the Operating Accounts
shall be made only with Chase's prior approval. In the event that at any time
there be insufficient funds available in the Operating Accounts to be disbursed
as hereinabove set forth, Chase agrees to supply Axiom immediately with funds
required to make such payments. Chase agrees to reimburse Axiom promptly for
any disbursement which Axiom may elect to advance for the account of Chase.
Nothing herein shall be construed to obligate Axiom to make any such advances.
1.1.16 Develop and when directed by Chase implement a semi-annual
performance critique by the user community. Results shall be tabulated by Axiom
and submitted for review by Chase's Director of Property Management and Axiom's
executives.
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1.1.17 Develop an audit program in which two independent auditors,
previously approved by Chase, will when directed by Chase semi-annually review
all expenses disbursed by Axiom. The auditors shall submit results of their
audits directly to Chase's Occupancy Accounting Department. The auditors shall
be independent auditors (out-of-house and non-Axiom affiliated) approved by
Chase.
1.1.18 The providing of the needed project management services stated in
Article 16 for Capital Projects with Construction Cost less than $150,000.
1.1.18.1 If/when any bid package is estimated to be over $10,000,
competitive bids shall be solicited, subject to protocols and procedures
established by Chase for competitive bidding.
1.1.19 Axiom shall furnish any and all business administration and
management services that are needed to provide the Basic Services in an
expeditious and economical manner consistent with the interests of Chase.
1.1.20 Axiom shall interface with Labor Union activities in all phases
of building operations. Axiom shall negotiate all union labor contracts
affecting all employees of Axiom (including, but not limited to, Employees of
the Properties) who are rendering services in connection with this Agreement,
and shall use its best efforts to settle and compromise all controversies and
disputes arising under such contracts upon such terms and conditions as Axiom
may deem to be in Chase's best interests, subject to Chase's written approval.
1.1.21 Axiom shall monitor the performance of all work performed under
service and maintenance contracts and shall evaluate if any such work should be
performed by Employees of the Properties. Axiom shall make an appropriate
recommendation to Chase.
Axiom shall implement a system of quality control inspections (which shall be
available for review and approval by Chase) to ensure that all services are
performed in a first class manner.
1.1.22 Ensure all trade and volume discounts available are passed on to
Chase.
1.1.23 Ensure that each purchase or contract exceeding $9,999 is
competitively bid (except as otherwise approved by Chase), subject to protocols
and procedures established by Chase for competitive bidding.
1.1.24 Axiom shall prepare and deliver to Chase prior to the 15th day of
each month a monthly report in form acceptable to Chase setting forth at a
minimum: (i) a cost report detailing budget as projected in the approved Annual
Plan versus actual expense for the latest complete month and for the current
year to date in sufficient detail to allow thorough analysis. It shall include
explanations of any variance exceeding the lesser of five percent (5%) or
$4,999.99 in any budget category, (ii) a cash disbursement statement for the
previous month with supporting documentation, and (iii) monthly bank statements
as to the Operating Accounts, copies of checks and Chase reconciliation
statement on software compatible with that utilized by Chase from time to time,
(iv) A report delineating charges against Chase's Chart of Accounts for all
disbursements made the previous month as well as for charges year to date, and
(v) Minority/Women Business Enterprise ("MWBE") Report showing amount of MWBE
participation in contracted work.
All reports shall be in sufficient detail and in a computerized format
compatible with Chase's systems.
Within fifteen (15) days after the end of each month, Axiom shall remit to Chase
all unexpended funds in the Operating Accounts at the end of the previous month.
1.1.25 Schedule and conduct quarterly conferences between Axiom's
executives and the Directors of Chase's Facility Management Unit and Property
Management Group. These conferences will include a comprehensive inspection of
each Property and a review of Axiom's performance.
1.1.26 Subcontract awards to MWBEs are crucial to achieving goals for
participation by these Disadvantaged Business Enterprises. The goals are
currently 20% for MWBEs. Axiom shall establish and monitor a plan on
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how it intends to meet and, if possible, exceed the stated goals. The actual
results of this plan are to be tabulated monthly for inclusion in the Monthly
Report.
1.1.27 Within thirty (30) days of Axiom's receipt of a Lease and or
modification thereto from Chase, Axiom shall provide Chase with an abstract of
same.
1.1.28 Any other service that is customarily provided by a property
management services firm doing business in the location of the Properties.
1.2 ADDITIONAL SERVICES
The following Additional Services shall be performed upon authorization in
writing from Chase and shall be paid for as provided in this Agreement.
1.2.1 As directed by Chase, Axiom shall provide only such additional
services that are within their competence to provide.
1.2.2 Additional services shall be any service requested by Chase that
is not set forth as part of Basic Services.
1.2.2.1 Additional Services could include but are not limited to:
1.2.2.1.1 Basic Services for the amount of Rentable Square Feet (RSF) in
excess of the specific quantity set forth in Exhibit A of this Agreement.
1.2.2.1.2 The providing of the project management services stated in
Article 16 for Capital Projects greater than $150,000.
1.2.2.1.2.1 There is no guarantee that Chase will use Axiom to provide such
project management services. Chase will consider Axiom for such projects but
reserves the right to either manage the work in-house or have a consultant
provide such services.
1.2.2.1.2.2 Consultation on replacement of work damaged by fire or other
cause during construction, and furnishing services in conjunction with the
replacement of such work which damage impacts the critical path of the Project
Schedule.
1.2.2.1.2.3 Services made necessary by the default of a contractor, which
default impacts the critical path of the Project Schedule.
1.2.2.1.3 An extension of the Basic Services beyond a 3 year duration.
1.3 TIME
1.3.1 Axiom shall perform Basic and Additional Services as
expeditiously as is consistent with reasonable skill and care. The duration of
Basic Services is three years from the effective date of this Agreement.
ARTICLE 2
CHASE'S RESPONSIBILITIES
2.1 Chase shall work with Axiom in managing the Properties.
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Chase shall provide information regarding the requirements of the Properties,
which shall set forth Chase's objectives, constraints and criteria, special
equipment and systems, and site requirements.
2.2 Based on consultation with and recommendation of Axiom, Chase
shall approve an Annual Plan for each Property.
2.3 Chase shall designate a representative authorized to act in
Chase's behalf with respect to this Agreement. Chase's authorized
representative shall examine documents submitted by Axiom and shall render
decisions pertaining thereto promptly to avoid unreasonable delay in the
progress of the services provided by Axiom.
2.4 If Chase observes or otherwise becomes aware of any deficiency of
Axiom in performing any of the services stated herein, prompt notice thereof
shall be given by Chase to Axiom.
2.5 Chase reserves the right to perform work related to the
Properties with Chase's own resources, and to award contracts in connection with
the Properties which are not part of Axiom's responsibilities under this
Agreement. Axiom shall notify Chase if any such independent action in any way
compromises Axiom's ability to meet Axiom's responsibilities under this
Agreement.
2.6 Chase shall furnish required information and services and shall
render approvals and decisions as expeditiously as necessary for the orderly
progress of Axiom's services.
2.7 Chase shall provide Axiom with a complete copy of all then
effective leases, subleases and license, occupancy or similar agreements
(individually a "Lease" and collectively "Leases") with all persons, agents and
entities occupying or using portions of the Properties (individually a "tenant"
and collectively "tenants") under Leases with Chase. In addition, Chase shall
provide Axiom with a complete copy of all then effective leases and licenses,
occupancy or similar agreements between Chase, as lessee, and the owners of the
Properties ("Chase Leases").
Chase shall supply Axiom with a complete copy of any new Lease, modification of
Lease, new Chase Lease or modification of Chase Lease entered into by Chase
during the term of this Agreement.
2.8 Chase shall provide Axiom with a copy of all then effective
service and maintenance contracts for the Properties, including, but not limited
to, contracts for utilities, elevator maintenance, telephone service, office
cleaning, window cleaning, landscape maintenance, rubbish removal, fuel, and
vermin extermination.
2.9 During the term of this Agreement Chase will provide, at no cost
to Axiom (or shall reimburse Axiom for the costs associated with the provision
of suitable space at the Properties (such space is hereinafter referred to as
the "Property Offices") to be utilized by Axiom for the purposes of performing
its services under this Agreement and for no other purpose.
The Property Offices shall be properly equipped with necessary office supplies,
business machines and telephones. Chase will reimburse Axiom for all costs
incurred with respect to such office supplies, business machines and telephones
including, but not limited to, acquisition, installation and reasonable usage
charges incurred in carrying out the services required under this Agreement.
ARTICLE 3
KEY PERSONNEL
3.1 Axiom shall appoint a single individual, the Portfolio Manager,
who shall be the person primarily responsible for Axiom's proper execution of
the Services required by this Agreement. Such individual shall have sufficient
experience and stature to effectively discharge all responsibilities.
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3.2 In addition to the Portfolio Manager, the Property Management
Axiom shall also propose other Key Personnel to handle the day to day services
for the Properties.
3.3 All Key Personnel proposed by Axiom must be approved in writing
by Chase prior to their working for any of the Properties.
3.4 Axiom shall remove from the Properties any of the Key Personnel
Chase so directs Axiom to remove.
3.5 Axiom may not remove any Key Personnel associated with this
Agreement unless Axiom receives prior written approval from Chase. The only
exception is if the Key Person ceases to be in the employ of Axiom or any of its
affiliates.
ARTICLE 4
PROPERTIES
4.1 This Agreement covers the Properties set forth on Exhibit A,
attached hereto.
ARTICLE 5
DIRECT PERSONNEL EXPENSE
5.1 Direct Personnel Expense is defined as the direct salaries of all
of Axiom's personnel engaged for this Agreement, excluding those whose
compensation is included in the fee, and the portion of the cost of their
mandatory and customary contributions and benefits related thereto such as
employment taxes, sales and use taxes, and other statutory employee benefits,
insurance, sick leave, holidays, vacations, pensions, all benefits under the
terms of any applicable bargaining agreements and severance benefits under Axiom
policy, consistently applied as changed from time to time, and similar
contributions and benefits.
ARTICLE 6
REIMBURSABLE COSTS
6.1 The term Reimbursable Costs shall mean all costs necessarily
incurred in the proper performance of Basic Services and paid by Axiom from the
imprest account established under this Agreement. Such costs shall be at rates
not higher than the standard paid in the locality of the Properties, except with
prior consent of Chase. Reimbursable Costs and costs not to be reimbursed shall
be further enumerated in Article 15.
6.2 Trade discounts, rebates and refunds, and returns from sale of
surplus materials and equipment shall accrue to Chase, and Axiom shall make
provisions so that they can be secured, to the extent possible.
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ARTICLE 7
PAYMENTS TO AXIOM
7.1 PAYMENTS ON ACCOUNT OF BASIC SERVICES
7.1.1 Payments for Basic Services Fee shall be made monthly and shall
be on the basis set forth in Article 15.
7.1.1.1 The Basic Services Fee shall include and be limited to all costs
associated with:
1. The provision of the Portfolio Manager.
2. All overhead and profit as well as any Axiom office overhead
and other support services including data processing support for
xxxx paying functions and generation of all reports consistent
with the Basic Services. This includes all direct and indirect
overhead except for salary expenses and benefits associated with
on site personnel below the level of Portfolio Manager.
3. All time spent by Axiom's personnel in any office not at one
of the Properties. This also includes the time of any of Axiom's
personnel above the level of Portfolio Manager.
4. Any other costs specifically stated to be a nonreimbursable
expense.
7.2 PAYMENTS ON ACCOUNT OF REIMBURSABLE COSTS
7.2.1 Chase shall fund the imprest account to the level agreed by and
between Chase and Axiom.
Axiom may disburse amounts from the imprest account for all reimbursable costs.
Prior approval by Chase is required for disbursement of a reimbursable cost
exceeding $10,000 except for payment of previously approved service contracts,
i.e. monthly cleaning, HVAC, etc.
7.3 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
7.3.1 Chase shall compensate Axiom for Additional Services and
Reimbursable Expenses associated therewith.
7.4 PAYMENTS WITHHELD
7.4.1 No deductions shall be made from Axiom's Basic Services Fee on
account of penalty, liquidated damages or other sums withheld from payments to
Vendors, or on account of the cost of changes in Work other than those for which
Axiom is held legally liable.
ARTICLE 8
AXIOM'S ACCOUNTING RECORDS
8.1 Records of Reimbursable Costs and costs pertaining to services
performed on an hourly basis or on the basis of a Multiple of Direct Personnel
Expense shall be kept on the basis of generally accepted accounting principles
and shall be available to Chase or Chase's authorized representative at mutually
convenient times.
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ARTICLE 9
ARBITRATION
9.1 All claims, disputes and other matters in question between the
parties to this Agreement arising out of or relating to this Agreement or the
breach thereof, shall be decided by arbitration in accordance with the
Arbitration Rules of the American Arbitration Association then obtaining unless
the parties mutually agree otherwise. No arbitration arising out of or relating
to this Agreement shall include, by consolidation, joinder or in any other
manner, any additional person not a party to this Agreement except by written
consent containing a specific reference to this Agreement and signed by Axiom,
Chase and any other person or party sought to be joined. Any consent to
arbitration involving an additional person or party shall not constitute consent
to arbitration of any dispute not described therein. This agreement to
arbitrate and any agreement to arbitrate with an additional person or party duly
consented to by the parties to this Agreement shall be specifically enforceable
under the prevailing arbitration law.
9.2 Notice of demand for arbitration shall be filed in writing with
the other party to this Agreement and with the American Arbitration Association.
The demand shall be made within a reasonable time after the claim, dispute or
other matter in question has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations.
9.3 The award rendered by the arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any court
having jurisdiction thereof.
ARTICLE 10
TERMINATION OF AGREEMENT
10.1 This agreement may be terminated at any time by mutual consent of
both parties.
10.2 TERMINATION FOR CAUSE
Chase may terminate this agreement for cause.
Chase shall deliver written notice of deficiency to Axiom.
Axiom shall respond to the deficiency notice within ten days and advise what
steps will be taken to cure the deficiency.
If in the sole judgment of Chase, Axiom is not taking adequate action to assure
the deficiency will be cured within another thirty (30) days or if the
deficiency remains uncured for another thirty (30) days, Chase may immediately
terminate the Contract for cause.
10.3 TERMINATION FOR CONVENIENCE
Chase shall have the right to terminate this Agreement without cause only after
this Agreement has been in force for one (1) year or more and at any time
thereafter upon thirty (30) days prior written notice.
10.4 This Agreement and the term and interest hereby granted are
subject to the limitations that:
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(i) In the event a petition in bankruptcy is filed by or against
either Chase or Axiom, or in the event that either shall make an assignment for
the benefit of creditors or take advantage of any insolvency act, either party
hereto may forthwith terminate this Agreement upon ten (10) days' notice in
writing.
(ii) If Axiom makes an assignment of its property for the benefit or
creditors or files a voluntary petition under any bankruptcy or insolvency law
or if an involuntary petition under any bankruptcy or insolvency law is filed
against Axiom and Axiom had theretofore committed an act of bankruptcy or
insolvency as alleged in such petition;
(iii) If a petition is filed by or against Axiom under the
reorganization provisions of the United States Bankruptcy Act or under the
provision of any law of a like import;
(iv) If Axiom files a petition under the arrangement provision of the
United States Bankruptcy Act or under the provisions of any of like import;
(v) If a receiver is appointed for Axiom or for the property of
Axiom;
(vi) If Axiom does anything or permits to be done anything, whether by
action or inaction, contrary to any covenant, agreement, term, provision or
condition of this Agreement on the part of Axiom;
Then, if any of said contingencies occur, Chase may give to Axiom a notice of
intention to terminate this Agreement and, at the expiration of five (5) days
from the date of giving of notice, this Agreement will expire and terminate with
the same effect as if that day were the date hereinafter set for the expiration
of the term of this Agreement and Chase will have no further obligation under
this Agreement whatsoever; provided, however, that Axiom will remain liable for
damages as hereinafter provided. In addition to all of Chase's other rights and
remedies, Chase will be entitled to such other damages, consequential and
otherwise as Chase may sustain by reason of Axiom's default. In the event of
breach or threatened breach of this Agreement or any of the covenants,
agreements, terms, provision or conditions hereof, Chase will have the right of
injunction, the right to invoke any remedy of that law or in equity as if other
remedies were not herein provided for.
10.5 This Agreement or part thereof shall automatically terminate in
the event that Chase sells, leases and otherwise vacates some or all of the
Premises for which the Services are being rendered and Chase will have no
further liability or obligation whatsoever.
If all or part of any Property is sold, its lease terminated or otherwise
vacated, upon notice by Chase, Axiom shall discontinue its Services as directed
by Chase. Compensation otherwise due Axiom shall be adjusted based on the
annual square foot rate multiplied by the number of RSF taken out of service
prorated to the effective date of Chase's notice.
Any reduction in the number of Properties due to this Article l0.5 shall not
affect this Agreement as it pertains to the remainder of the Properties for
which Axiom is providing Services.
10.6 In the event of termination not the fault of Axiom, Axiom shall
be compensated for all services performed and payments requested by Chase to the
termination date.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Unless otherwise specified, this Agreement shall be governed by
the laws of the State of New York.
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11.2 As to all acts or failures to act by either party to this
Agreement, any applicable statute of limitations shall commence to run, and any
alleged cause of action shall be deemed to have accrued, in any and all events
not later than the actual termination date of this agreement.
11.3 Except as provided elsewhere in this Agreement or where the law
imposes a legal duty or penalty upon Axiom, or upon Axiom and Chase, as
distinguished from Chase alone, Axiom shall not make repairs, additions or
alterations to the Properties or comply with orders of public authority
affecting the Properties without first obtaining prior written consent of Chase.
11.4 All notices referred to herein, shall be deemed to be
sufficiently given if in writing and sent by United States registered or
certified mail (return receipt requested) to Chase's Director of Property
Management or to Axiom, as the case may be, at their respective business
addresses first hereinabove given or at such other address or addresses as
either party shall hereafter designate by written notice.
11.5 Axiom represents that it is an Equal Opportunity Employer in
accordance with Executive Order No. 11246, dated September 24, 1965, as amended
by Executive Order No. 11375, dated October 13, 1967.
In addition, during the performance of this Agreement, Axiom agrees as follows:
(i) Axiom will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin, age,
disability, sexual orientation, creed, alienage, citizenship status, marital
status or any other protected status. Axiom will take affirmative action to
ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, religion, sex or national
origin, age, disability, sexual orientation, creed, alienage, citizenship
status, marital status or any other protected status. Such action may include,
but not be limited to, the following: employment, upgrading, demotion or
transfer, recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training, including
apprenticeship. Axiom agrees to post in conspicuous places, available to the
employees and applicants for employment, notices setting forth the provisions of
this nondiscrimination clause.
(ii) Axiom will in all solicitations or advertisements for employees
placed by or on behalf of Axiom, state that all qualified applicants will
receive consideration for employment without regard to race, color, religion,
sex, national origin, age, disability, sexual orientation, creed, alienage,
citizenship status, marital status or any other protected status.
(iii) If applicable to Axiom, Axiom shall comply with all provisions of
the Equal Opportunity/Affirmative Action clauses of and the implementing
regulations for:
(a) Executive Order 11246, as amended;
(b) Affirmative Action Regulations for minorities and women - 41
CFR 60-1 et seq.
(c) Section 503 of the Rehabilitation Act of 1973;
(d) Affirmative Action Regulations for Handicapped Workers - 41
CFR 60-741;
(e) Section 402 of the Vietnam-Era Veterans Readjustment
Assistant Act of 1974; and
(f) Affirmative Action Regulations for Special Disabled and
Vietnam-Era Veterans - 41 CFR 60-250
These above six provisions are hereby incorporated by reference into this
Agreement.
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Axiom also agrees to comply with Federal, State and Local non-discrimination
laws, to ensure that its employment policies and practices are
non-discriminatory, and to take affirmative action efforts, where appropriate.
Further, Axiom agrees to comply with the Americans with Disabilities Act
("ADA"), identify issues of compliance with the ADA (including Titles I and III)
for both Chase and Axiom and ensure Chase and Axiom's compliance with the ADA
including Titles I and III to the extent such compliance is covered by this
Agreement.
11.6 It is the policy of Chase through its Minority and Women-Owned
Business Development Program ("Vendor Program") (the terms of which are
incorporated herein) that registered minority owned business enterprises
("MBE's") and women owned business enterprises ("WBE's") (together referred to
as "MWBE's") shall have equal opportunity to bid on Chase contracts and to
participate in the performance of contracts for goods and services with Chase.
Axiom is asked to share in this commitment and to work with Chase to achieve
this.
11.6.1 Axiom shall take all Necessary and Reasonable Steps to seek to
achieve the purposes of Chase's Vendor Program and to achieve the Plan described
below, including the MWBE Utilization Goal.
11.6.1.1 Chase's MWBE utilization goal for this Agreement is 20%.
11.6.1.2 If either Chase or Axiom determine that there are subcontracting
opportunities for portions of the Work specifically identifiable with the
services provided and/or goods purchased under this Agreement, Axiom shall
propose, establish, implement and monitor an approved Plan, identifying the
Necessary and Reasonable Steps to be undertaken to seek to achieve the purposes
of the Vendor Program and the Plan including the Utilization Goal.
11.6.1.2.1 The actual results of this Plan are to be tabulated monthly by
Axiom and submitted to Chase. If Axiom does not achieve compliance with the
Plan and Utilization Goal, Chase will evaluate whether Axiom has taken all
Necessary and Reasonable Steps to seek to achieve the purposes of the Vendor
Program and the Plan.
11.6.2 Failure to comply with this Article 11.6 of the Agreement may
constitute a material breach.
11.7 Any provisions of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and no such prohibition or unenforceability in any
jurisdiction shall invalidate such provision in any other jurisdiction.
11.8 The term "Axiom" as used in this Agreement shall include any
corporate subsidiaries or affiliates of Axiom who perform services in, on, or
about the Properties or the land on which the Properties are located, arising
out of or in connection with this Agreement.
11.9 Non-Waiver. No course of dealing or failure of either party to
strictly enforce any term, right or condition of this Agreement shall be
construed as a waiver of such term, right or condition.
The failure of Chase to insist in any one or more instances upon the strict
performance of any of the covenants, agreements, terms, provisions or conditions
of this Agreement or to exercise any election herein contained will not be
construed as a waiver or a relinquishment of the future enforceability of such
covenant, agreement, term, provision, condition or election. Any waiver by
Chase of any covenant, agreement, term, provision or election will only be
deemed effective when expressed in writing and signed by Chase.
Mention in this Agreement of any particular remedy will not preclude Chase from
any other remedy in law or equity.
11.10 If any provision of this Agreement is found to be invalid for any
reason, the invalidity of such provision will not affect the validity of any
other provision of this Agreement.
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11.11 The descriptions of the provisions of this Agreement which are
contained in the margins hereof are for descriptive purposes only and have no
legal significance.
11.11 All rights and remedies afforded under this Agreement will be
cumulative and in addition to such other rights and remedies as may be available
to Axiom and Chase at law and/or in equity.
11.12 Axiom shall not except for a generic listing of Axiom's clients
which Axiom may disseminate in the ordinary course of business, without first
obtaining the written consent of Chase, advertise or publish the fact that Axiom
has furnished or contracted to furnish to Chase, work contracted hereunder.
11.16 Chase's determination of the meaning of such terms as "necessary"
"as necessary" "as required" "as needed" "if necessary" and terms of similar
import shall be final and binding upon Axiom.
11.17 Axiom acknowledges that some or all of the facilities set forth
on Exhibit A may contain hazardous materials (including asbestos containing
materials) in various places through the facilities. Axiom shall comply with
all federal, state, and local statutes, rules and regulations regarding
hazardous materials and, as appropriate, it shall take all necessary precautions
to safeguard its employees and occupants of the facilities if it encounters any
hazardous material while providing the Services required by this Agreement.
11.18 If in performing the Services, Axiom infringes on a patent and/or
copyright it knows of or should know of, Axiom shall fully indemnify and hold
Chase harmless from any claim made by the lawful owner of the patent and/or
copyright (made either during the term of this Agreement or in the future).
This paragraph shall survive the termination of this Agreement.
11.19 If Axiom sells all or a substantial part of its business within
the first year this Agreement is in effect, not withstanding other language to
the contrary, Chase shall have the right to terminate this Agreement for its
convenience by giving Axiom 30 days' notice.
11.20 While on Chase's Properties, Employees of the Properties will
comply with all of Chase's security regulations upon reasonable notice of such
requirements and when deemed appropriate by Chase, Employees of the Properties
will be issued visitor identification cards, which cards will be surrendered to
Chase upon demand or at the termination of this Agreement, whichever occurs
first.
11.21 If there is a conflict between Axiom's Proposal and this
Agreement, the terms and conditions of this Agreement shall govern.
ARTLCLE 12
SUCCESSORS AND ASSIGNS
12.1 Chase and Axiom, 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. Axiom shall
not assign, sublet or transfer any interest in this Agreement without the
written consent of Chase.
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ARTICLE 13
EXTENT OF AGREEMENT
13.1 This Agreement including any Exhibits attached hereto represents
the entire and integrated agreement between Chase and Axiom and supersedes all
prior negotiations, representations or agreements, either written or oral. This
Agreement may be amended only by written instrument signed by both Chase and
Axiom.
ARTICLE 14
INSURANCE
14.1 INSURANCE CARRIED BY AXIOM
Axiom, within five (5) business days after the execution of the Agreement or
before commencing work or permitting any subcontractor to commence work prior to
the expiration of five (5) business days after the execution of the Agreement,
whichever is the earliest, shall procure and maintain, the following insurance
of the kinds and limits enumerated hereunder, with companies acceptable to
Chase. Should Axiom at any time neglect or refuse to provide the required
insurance, or should such insurance be canceled, Chase shall have the right to
procure such insurance and the cost thereof shall be deducted from moneys then
due or thereafter to become due Axiom. Axiom may carry, at its own expense,
such additional insurance as it may deem necessary. Axiom shall not be deemed to
be relieved on any responsibility by the fact that it carries insurance.
14.1.1 REQUIRED INSURANCE
(a) Workers' Compensation and Employer's Liability Insurance in
accordance with the applicable laws of the State of New York or the state in
which the work is to be performed or of the state in which Axiom is obligated to
pay compensation to employees engaged in the performance of the work. The
policy limit under Employer's Liability Insurance section shall not be less than
One Million Dollars ($1,000,000.00) for any one accident. The insurance
required by this paragraph 14.1.1.a shall be nonreimbursable except for the
personnel stationed full time at a Chase facility.
(b) Comprehensive crime policy covering its employees who deal with
the Properties or bank accounts hereunder having a policy limit of no less than
Two Million and Five Hundred Thousand Dollars ($2,500,000.00). The insurance
required by this paragraph shall be nonreimbursable.
14.1.2 CERTIFICATES OF INSURANCE
(a) Axiom shall have its insurance carrier or carriers certify to
Chase that all insurance required is in force. Such certificates shall
stipulate that the insurance will not be canceled or substantially changed
without thirty (30) days' prior notice and shall be sent by certified mail to
Chase at 0 Xxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Corporate Insurance Services. Certificates shall be sent to aforementioned
address with a copy to the Property Services Group at Chase Facilities
Management.
(b) In the event that service under Agreement is rendered by persons
other than Axiom, Axiom shall arrange to have such subcontractors furnish to
Axiom evidence of insurance, subject to the same terms and conditions set forth
above and applicable to Axiom, at least two (2) weeks prior to commencing such
work.
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14.2 NOTICE TO CHASE
Axiom shall promptly advise Chase's authorized representative of all damages to
property of Chase or of others, or injuries incurred by persons other than
employees of Axiom (or any subcontractor) in any manner relating, either
directly or indirectly, to the work.
14.3 MATERIALS USED BY AXIOM
(a) Axiom or subcontractors will be responsible for insurance
coverage on their equipment, tools, supplies and any other materials which they
may use in the course of the work or store on Chase's premise; and (b) in work
done by Axiom requiring the use of floor finishes, Axiom shall use Underwriters
Laboratories approved finishes only.
14.4 INSURANCE CARRIED BY CHASE
(a) Chase agrees to carry general liability insurance with a minimum
limit of at least $5,000,000.00 including elevator liability and contractual
liability insurance (specifically insuring the indemnity provisions set forth
below in paragraph 14.5, and such other insurance as may be necessary for the
protection of the interests of Chase and Axiom. In each such policy of
insurance, Chase agrees to designate Axiom and its corporate subsidiaries and
affiliates, who are performing services under this Agreement, as parties insured
with Chase. The general liability, elevator and contractual liability insurance
must contain a severability of interest clause and coverage for Personal Injury
Insurance. A certificate of each policy issued by the carrier shall be
delivered to Axiom by Chase.
(b) Chase shall procure an appropriate clause in, or endorsement on,
each of its policies for fire or extended coverage insurance and on all other
forms of property damage insurance covering the Properties or personal property,
fixtures or equipment whereby the insurer waives subrogation or consents to a
waiver of the right of recovery against Axiom, and to the extent permitted by
law, Chase hereby agrees that it will not make any claim against or seek to
recover from Axiom for any loss or damage to property of the type covered by
such insurance.
(c) It is understood and agreed that with respect to any insurance to
be provided hereunder and covering Axiom's interest, Chase shall be responsible
for the payment of all premiums thereon. All dividends or return premiums in
connection with such insurance shall be paid to Chase.
14.5 INDEMNITY AGREEMENT
14.5.1 Chase agrees (a) to hold and save Axiom free and harmless from
any claim for damages or injuries to persons or property by reason of any cause
whatsoever either in or about the Properties or elsewhere when Axiom is properly
carrying out the provisions of this Agreement or acting under the express or
implied directions of Chase; or due to Chase's failure or refusal to comply with
or abide by any rule, order, determination, ordinance or law of any Federal,
State or Municipal Authority and (b) to defend promptly and diligently, at
Chase's sole expense, any claim, action or preceding brought against Axiom or
Axiom and Chase, jointly or severally, arising out of or connected with any of
the foregoing, and to hold harmless and fully indemnify Axiom from any judgment,
loss or settlement on account thereof. The foregoing provisions of this
paragraph shall survive the expiration or termination of this Agreement.
Nothing contained in this paragraph shall relieve Axiom from responsibility to
Chase for the gross negligence and/or willful misconduct of Axiom.
14.5.2.1 Axiom agrees to defend (with counsel satisfactory to Chase),
indemnify and save harmless Chase, its officers, directors and employees, from
any and all claims, expenses (including reasonable attorneys' fees), damages,
suits, costs or judgments whatsoever, whether groundless or otherwise, arising
from or out of employment-related claims (including third party action arising
out of Worker's Compensation claims of Axiom employees against Chase) arising
after the effective date of hiring of any such Employees of the Properties and
unrelated to any claim being asserted against Chase as to employment prior to
the effective date of hiring or benefits-related claim prior to the effective
date of hiring arising out of, incident to, or in connection with, in
17
whole or in part, this Agreement relating to employment related claims
(including but not limited to a breach by the Axiom of any term or condition of
this Agreement relating to employment related claims or any act or omission of
Axiom or of the Employees of the Properties or Others retained by Axiom relating
to employment related claims), PROVIDED, HOWEVER, that Axiom shall not be
required to indemnify Chase for that portion of damage attributable to Chase's
gross negligence or willful misconduct, or where Axiom followed an express
instruction by Chase and the instruction is the basis for such damages, in which
case Chase will defend and indemnify Axiom except with respect to claims arising
from Worker's Compensation claims.
14.5.2.2 As a condition to indemnification, Chase and Axiom agree that
each will grant the indemnifying party complete control of the defense of any
action and all negotiation in its settlement or compromise, provided that any
settlement or compromise shall be reasonably acceptable to the other, and does
not adversely affect any rights of or create any obligation on the part of the
other.
14.5.2.3 Axiom agrees to indemnify Chase for any loss arising out of
fraud, theft, misappropriation or any similar act by Axiom, its officers,
directors, employees and Agents.
14.6 The terms of this Paragraph 14 shall survive the termination of
this Agreement regardless of the party which terminated or the reasons therefor.
ARTICLE L5
BASIS OF COMPENSATION
Chase shall compensate Axiom for the Services provided, in accordance with the
Terms and Conditions of this Agreement, as follows:
15.1 BASIC SERVICES COMPENSATION
15.1.1 FOR BASIC SERVICES, as described elsewhere in this Agreement,
Basic Compensation shall be computed as follows:
15.1.1.1 The annual Basic Services Compensation shall be:
A Lump Sum of Six Hundred Fifty Eight Thousand Eight Hundred Twenty Four Dollars
($658,824) for Year One ($0.065 for Regions 1 thru 4 and $0.085 for Region 7
times the square feet in Exhibit A);
A Lump Sum of Six Hundred Seventy Nine Thousand Two Hundred Eighty Four Dollars
($679,284) for Year Two ($0.067 for Regions 1 thru 4 and $0.088 for Region 7
times the square feet in Exhibit A); and
A Lump Sum of Seven Hundred Thousand Two Hundred Fourty Eight Dollars ($700,248)
for Year Three ($0.069 for Regions 1 thru 4 and $0.092 for Region 7 times the
square feet in Exhibit A);
which amounts shall be paid in the following installments:
15.1.1.1.1 Schedule of Payments:
Axiom shall be paid monthly in arrears as follows:
1. Months 1-12 A total of Six Hundred Fifty Eight Thousand
Eight Hundred Twenty Four Dollars ($658,824) payable in equal monthly
installments of Fifty Four Thousand Nine Hundred and Two Dollars ($54,902) in
arrears.
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2. Months 13-24 A total of Six Hundred Seventy Nine Thousand
Two Hundred Eighty Four Dollars ($679,284) payable in equal monthly installments
of Fifty Six Thousand Six Hundred Seven Dollars ($56,607) in arrears.
3. Months 25-36 A total of Seven Hundred Thousand Two Hundred
FoUrty Eight Dollars ($700,248) payable in equal monthly installments of Fifty
Eight Thousand Three Hundred Fifty Four Dollars ($58,354) in arrears.
15.1.1.2 REIMBURSABLE EXPENSES - BASIC SERVICES
Axiom shall be reimbursed for all expenses incurred associated with the
performance of Basic Services except for those costs included in the Basic
Services Fee. Axiom may withdraw from the Imprest Account the actual costs of
all Reimbursable Expenses incurred by Axiom in the interest of this Agreement
with no xxxx-up.
15.2 ADDITIONAL SERVICES COMPENSATION
15.2.1 For additional services of Axiom, approved in writing by Chase
and provided by Axiom in accordance with the Terms and Conditions of this
Agreement, compensation shall be computed as follows:
15.2.1.1 The amount of Additional Services Compensation to be paid to
Axiom shall be set forth in a written amendment to this Agreement and executed
by Chase and Axiom. In the event no agreement is reached as to the amount of
Additional Services Compensation to be paid to Axiom, Chase may issue a written
order to Axiom to proceed with the work and Axiom must proceed with the
Additional Services, and such Additional Services Compensation shall be
determined as follows:
15.2.1.1.1 For Managing a quantity of RSF which differs from the quantity
stated in Exhibit A, Axiom's Basic Services Fee shall be adjusted and paid at
the RSF rate stated in 15.1.1.1 prorated by month and contract year the quantity
of space changed.
15.2.1.1.2 For Services related to project management services for capital
projects costing in excess of $150,000, Chase will compensate Axiom for all
actual construction costs plus fee to be negotiated the maximum of which would
be 5% of the construction costs.
15.2.1.1.3 REIMBURSABLE EXPENSES - ADDITIONAL SERVICES
In connection with Additional Services, Reimbursable Expenses are those actual
expenditures made by Axiom, its employees, or its professional consultants in
the interest of this Agreement including but not limited to, field office,
furniture, equipment and utilities, all out-of-pocket expenses for travel and
living expenses, long distance telephone, telex, overnight package express, and
any direct labor and materials for the construction, if any, that are purchased
on Chase's behalf, computer time, photocopies, professional consultants, and
document reproduction. This shall include cost of professional consultants
retained by Axiom with regard to such Additional Services. Reimbursable
Expenses shall be drawn from the Imprest Account as they are paid by Axiom.
ARTICLE 16
OTHER CONDITIONS OR SERVICES
16.1 The following services are also considered Basic Services:
16.1.1 Axiom shall provide adequate staff to be able to control and to
respond timely to Chase, Chase's other Architects, Engineers, separate vendors,
contractors (and their subcontractors), building officials, etc. and to complete
all services within the agreed durations and budgets.
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16.1.2 When Axiom is to administer separate Vendor Contracts, Axiom
shall use the appropriate standard Chase Contract. Axiom is responsible for
completion of said contract, execution by the separate Vendors and return to
Chase (2 signed copies) prior to the Vendor commencing work.
16.1.3 Axiom is to provide to Chase all requests for change orders from
the separate vendors, utilizing Change Order forms and procedures approved by
Chase. Verbal authorization of change orders to the vendor is restricted to an
officer of the Facilities Management Department of Chase. Such authorization if
provided verbally must be followed within 5 business days by written notice.
16.1.4 Axiom is responsible to obtain from the separate vendors and
their subcontractors releases of lien within thirty (30) days after completion
of contract work. (Exhibit B)
16.1.5 All services provided by Axiom under this Agreement shall be
coordinated with Chase's Project and Property Management Procedures.
16.2 On all capital projects costing less than $150,000 for which
Chase requests Axiom to manage on Chase's Behalf, Axiom shall provide any/all
the following Project Management Services that are needed with the level of
detail that is appropriate for the specific Project.
16.2.1 PRECONSTRUCTION PHASE
16.2.1.1 Engage the services of approved design consultant(s).
16.2.1.2 Provide and coordinate the preliminary evaluation of the program
and Project budget requirements. With the Architect's and Engineer's
assistance, prepare preliminary estimates of Construction Costs for early
schematic designs based on area, volume or other customary standards. Assist
Chase and the Architect and Engineer in achieving mutually agreed upon program
and Project budget requirements and other design parameters. Provide cost
evaluations of alternative materials and systems.
16.2.1.2.1 Axiom shall take certain provisions contained in Leases between
various Landlords and Chase into consideration in the preparation of the budget
and schedules.
16.2.1.2.2 Evaluate Chase's Project budget and cost estimates prepared by
Axiom in Axiom's best judgment as a professional familiar with the construction
industry. It is recognized, however, that neither Axiom nor Chase 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, Axiom cannot and does not warrant or represent that bids or
negotiated prices will not vary from the Project budget proposed, established or
approved by Chase, or from any cost estimate or evaluation prepared by Axiom.
16.2.1.2.3 If a fixed limit of Construction Cost has been established, Axiom
shall include contingencies for design, bidding and price escalation, and shall
determine what materials, equipment, component systems and types of construction
are to be included in the Contract Documents, reasonable adjustments in the
scope of the Project, and to suggest alternate Bids in the Construction
Documents to adjust the Construction Cost to the fixed limit. Any such fixed
limit shall be increased in the amount of any increase in the Contract Sums
occurring after the execution of the Contracts for Construction.
16.2.1.2.4 If due to causes beyond Axiom's control, bids are not received
within the time scheduled at the time the fixed limit of Construction Cost was
established, the fixed limit of Construction Cost shall be adjusted to reflect
any change in the general level of prices in the construction industry occurring
between the originally scheduled date and the date on which bids are actually
received.
16.2.1.2.5 If a fixed limit of Construction Cost or the approved budget is
exceeded by the sum of the lowest figures from bona fide bids or negotiated
proposals plus Axiom's estimate of other elements of Construction Cost for the
Project, Chase shall (1) give written approval of an increase in such fixed
limit, (2) authorize rebidding or
20
renegotiation of the Project or portions of the Project within a reasonable
time, (3) if the Project is abandoned, terminate Axiom's services for the
specific project, or (4) cooperate in revising the scope and quality of the work
as required to reduce the Construction Cost. In the case of item (4), Axiom,
without additional Fee compensation, shall cooperate as necessary to bring the
Construction Cost within the fixed limit or the approved budget.
16.2.1.3 Review designs during their development. Advise on site use and
improvements, selection of materials, building systems and equipment and methods
of Project delivery. Provide recommendations on relative feasibility of
construction methods, availability of materials and labor, time requirements for
procurement, installation and construction, and factors related to costs
including, but not limited to, costs of alternative designs or materials,
preliminary budgets, and possible economies.
16.2.1.4 Provide for the Architect's and Engineer's and Chase's review and
acceptance, and periodically update, a Project Schedule that coordinates and
integrates Axiom's services, the Architect's and Engineer's services and Chase's
responsibilities with anticipated construction schedules.
16.2.1.5 Prepare for Chase's approval a more detailed estimate of
Construction Cost(s), developed by using estimating techniques which anticipate
the various elements of the Project, and based on Schematic Design Documents
prepared by the Architect. Update and refine this estimate periodically as the
Architect and Engineer prepares Design Development and Construction Documents.
Advise Chase and the Architect and Engineer if it appears that the Construction
Cost may exceed the Project budget. Make recommendations for corrective action.
16.2.1.6 Coordinate Contract Documents by consulting with Chase and the
Architect and Engineer regarding Drawings and Specifications as they are being
prepared, and recommend alternative solutions whenever design details affect
construction feasibility, cost or schedules.
16.2.1.6.1 Provide recommendations and information to Chase and the
Architect and Engineer regarding the assignment of responsibilities for safety
precautions and programs; temporary Project facilities; and equipment, materials
and services for common use of contractors. Verify that the requirements and
assignment of responsibilities are included in the proposed Contract Documents.
16.2.1.6.2 Advise on the separation of the Project into contracts for
various categories of work. Advise on the method to be used for selecting
contractors and awarding contracts. If separate contracts are to be awarded,
review the Drawings and Specifications and make recommendations as required to
provide that (1) the work of the separate contractors is coordinated, (2) all
requirements for the Project have been assigned to the appropriate separate
contract, (3) the likelihood of jurisdictional disputes has been minimized, and
(4) proper coordination has been provided for phased construction.
16.2.1.6.3 Develop a Project Schedule providing for all major elements such
as phasing of construction and times of commencement and completion required of
each separate contractor. Provide the Project Construction Schedule for each
set of bidding documents.
16.2.1.6.4 Investigate and recommend a schedule for Chase'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
architect. Expedite and coordinate delivery of these purchases.
16.2.1.7 Provide an analysis of the types and quantities of labor required
for the Project and review the availability of appropriate categories of labor
required for critical phases. Make recommendations for actions designed to
minimize adverse effects of labor shortages.
16.2.1.7.1 Identify or verify applicable requirements for equal employment
opportunity programs and MWBE participation for inclusion in the proposed
Contract Documents.
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16.2.1.8 Make recommendations for pre-qualification criteria for bidders
and develop bidders' interest in the Project. Establish bidding schedules.
Assist Chase in issuing Bidding Documents to bidders. Conduct pre-bid
conferences to familiarize bidders with the Bidding Documents and management
techniques and with any special systems, materials or methods. Assist Chase and
the Architect and Engineer with the receipt of questions from bidders, and with
the issuance of addenda.
16.2.1.8.1 If/when any bid package is estimated to be over $10,000,
competitive bids shall be solicited, subject to protocols and procedures
established by Chase for competitive bidding. In accordance with Chase's
procurement procedures, assist in bid receipt, prepare bid analyses and make
recommendations to Chase for award of Contracts or rejection of bids.
16.2.1.9 With Chase and the Architect's and Engineer's assistance, conduct
pre-award conferences with successful bidders. Assist Chase in preparing
Construction Contracts and advise Chase on the acceptability of subcontractors
and material suppliers proposed by contractors. After execution by Chase issue
and administer construction contracts between Chase and the separate
contractors.
16.2.2 CONSTRUCTION PHASE
The Construction Phase will commence with the award of the initial Construction
Contract or purchase order and will end thirty (30) days after final payment to
all contractors is due.
16.2.2.1 Axiom, in cooperation with Chase, shall provide administration of
the Contracts for Construction as set forth below and in the Chase General
Conditions of the Contract for Construction.
16.2.2.2 Provide administrative, management and related services as
required to coordinate work of the contractors with each other and with the
activities and responsibilities of Axiom, Chase and the architect and engineer
to complete the Project in accordance with Chase objectives for cost, time and
quality. Provide sufficient organization, personnel and management to carry out
the requirements of this Agreement.
16.2.2.2.1 Schedule and conduct pre-construction, construction and progress
meetings to discuss such matters as procedures, progress, problems and
scheduling. Prepare and promptly distribute minutes.
16.2.2.2.2 Consistent with the Project Construction Schedule issued with the
Bidding Documents, and utilizing the Contractors' Construction Schedules
provided by the separate contractors, update the Project Construction Schedule
incorporating the activities of contractors 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. Include Chase occupancy requirements showing portions of the
Project having occupancy priority. Update and reissue the Project Construction
Schedule as required to show current conditions and revisions required by actual
experience.
16.2.2.2.3 Endeavor to achieve satisfactory performance from each of the
contractors. Recommend courses of action to Chase when requirements of a
contract are not being fulfilled, and the non performing party will not take
satisfactory corrective action.
16.2.2.3 Revise and refine the approved estimate of construction cost,
incorporate approved changes as they occur, and develop cash flow reports and
forecasts as needed.
16.2.2.3.1 Provide regular monitoring of the approved estimate of
construction cost, showing actual costs for activities in progress and estimates
for uncompleted tasks. Identify variances between actual and budgeted or
estimated costs, and advise Chase whenever projected costs exceed budgets or
estimates.
16.2.2.3.2 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.
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16.2.2.3.3 Recommend necessary or desirable changes to the architect and
engineer and Chase, review requests for changes, assist in negotiating
Contractors' proposals, submit recommendations to Chase, and if they are
accepted, prepare a Change Order for Chase's authorization.
16.2.2.3.4 Develop and implement procedures for the review and processing of
Applications by contractors for progress and final payments. Make
recommendations to Chase for payment.
16.2.2.4 Review the safety programs developed by each of the contractors
as required by their Contract Documents and coordinate the safety programs for
the Project.
16.2.2.5 Assist in obtaining building permits and special permits for
permanent improvements, excluding permits required to be obtained directly by
the various contractors. Verify that Chase has paid applicable fees and
assessments. Assist in obtaining approvals from authorities having jurisdiction
over the Project.
16.2.2.6 If required, assist Chase in selecting and retaining the
professional services of surveyors, special consultants and testing
laboratories. Coordinate their services.
16.2.2.7 Determine in general that the work of each contractor is being
performed in accordance with the requirements of the Contract Documents.
Endeavor to guard Chase against defects and deficiencies in the work. As
appropriate, require special inspection or testing, or make recommendations to
the architect and engineer regarding special inspection or testing, of work not
in accordance with the provisions of the Contract Documents whether or not such
work be then fabricated, installed or completed. Subject to review by Chase,
reject work which does not conform to the requirements of the Contract
Documents.
16.2.2.7.1 Axiom shall not be responsible for construction means, methods,
techniques, sequences and procedures employed by Contractors in the performance
of their Contracts, and shall not be responsible for the failure of any
contractor to carry out work in accordance with the Contract Documents.
16.2.2.8 Consult with the architect and engineer and Chase 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.
16.2.2.9 Receive and assure that current and satisfactory Certificates of
Insurance are provided from the contractors, prior to the inception of any
contract and forward them to Chase's insurance services department on an as
requested basis.
16.2.2.10 Receive from the contractors and review all Shop Drawings,
Product Data, Samples and other submittals. Coordinate them with information
contained in related documents and transmit to the architect and engineer those
recommended for approval. In collaboration with the architect and engineer,
establish and implement procedures for expediting the processing and approval of
Shop Drawings, Product Data, Samples and other submittals.
16.2.2.11 Record the progress if the Project. Submit written progress
reports to Chase, the architect and engineer 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 all Change Orders. Keep
a daily log containing a record of weather, contractors' work on the site,
number of workers, Work accomplished, problems encountered, and other similar
relevant data as Chase may require. Make the log available to Chase.
16.2.2.11.1 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. Maintain records, in duplicate, of principal building layout
lines, elevations of the bottom of footings, floor levels and key site
elevations certified by a qualified surveyor or
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professional engineer. Make all records available to Chase, the architect and
engineer. At the completion of the Project, deliver all such records to Chase.
16.2.2.12 Arrange for delivery and storage, protection and security for
Chase purchased materials, systems and equipment which are a part of the
Project, until such items are incorporated into the Project.
16.2.2.13 With Chase Property Management personnel, observe the
contractors' checkout of utilities, operational systems and equipment for
readiness and assist in their initial start-up and testing.
16.2.2.14 When Axiom considers each contractor's work or a designated
portion thereof substantially complete, Axiom shall prepare for the architect,
engineer and Chase a list of incomplete or unsatisfactory items and a schedule
for their completion. Axiom shall assist the architect, engineer and Chase in
conducting inspections. After the architect, engineer and Chase certify the
Dates of Substantial Completion of the work, Axiom shall coordinate the
correction and completion of the work.
16.2.2.15 Assist the architect and engineer and Chase in determining when
the Project or a designated portion thereof is substantially complete. Prepare
for the architect and engineer a summary of the status of the work of each
contractor, listing changes in the previously issued Certificates of Substantial
Completion of the Work and recommending the times within which contractors shall
complete uncompleted items on their Certificate of Substantial Completion of the
work.
16.2.2.16 Following the architect's issuance of a Certificate of
Substantial Completion of the Project or designated portion thereof, evaluate
the completion of the work of the contractors and make recommendations to the
architect, engineer and Chase when work is ready for final inspection. Assist
the architect, engineer and Chase in conducting final inspections. Secure and
transmit to Chase required guarantees, affidavits, releases, bonds and waivers.
Deliver all keys, manuals, record drawings and maintenance stocks to Chase.
16.2.2.17 The extent of the duties, responsibilities and limitations of
authority of Axiom as a representative of Chase during construction shall not be
modified or extended without the written consent of Chase and Axiom, which
consent shall not be unreasonably withheld.
16.2.2.18 Axiom shall prepare and distribute, at a minimum, monthly
construction schedule updates. After an evaluation of the actual progress as
observed by Axiom; schedule activities shall then be assigned
percentage-complete values in conjunction with the Contractor. The report shall
reflect actual progress as compared to schedule progress noting variances (if
any) as negative float. This report shall also be the basis for determining
implementation of certain Chase prerogatives concerning progress of the Project,
when required.
16.2.2.19 Axiom shall be the recipient of all notices of claims by
Contractors against Chase for additional cost or time due to any alleged cause.
Axiom shall perform a preliminary evaluation of the contents of the claim,
obtain factual information concerning the claim, and make recommendations to
Chase.
16.2.2.19.1 Axiom shall analyze the claims for extension of time and impact
cost, using the schedule reports. An impact evaluation report shall be prepared
which shall reflect the actual impact to the schedule. The report shall also
provide a narrative including a recommendation for action to Chase.
16.2.2.19.2 Axiom shall prepare estimates based on the alleged cause of
claims submitted by the Contractor and Axiom shall prepare alternate estimates
based on varying scenarios of the claim cause. These estimates shall be
transmitted to Chase and shall be used in claim rulings and negotiations.
16.2.2.19.3 Axiom shall negotiate claims with the Contractor on behalf of
Chase at Chase's instructions. Axiom shall make a final recommendation to Chase
concerning settlement or other appropriate action.
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16.2.3 POST CONSTRUCTION SERVICES:
16.2.3.1 Occupancy Permit (Building Department Sign-off). Axiom shall
obtain for Chase the necessary occupancy permits. This task may encompass
accompanying governmental officials during inspections of the facility, assist
in preparing and submitting proper documentation to the appropriate approving
agencies, assisting in final testing and other necessary and reasonable
activities.
16.2.3.2 Support of Chase's Furniture/Equipment Installation Activities.
Axiom shall assist Chase's Furniture and Fine Arts Group as requested to prepare
requests for proposals, solicit quotes, prepare contracts, obtain execution of
contracts, conduct pre-moving conferences and administer the contract for moving
activities in conjunction with move-in for the Project. Axiom shall provide
on-site personnel to oversee the relocation of all furniture, equipment, and
other articles by the movers while actual move-in is in progress. Axiom shall
make a final report to Chase concerning the move-in and make recommendations as
to payment to the movers.
16.2.3.3 Move-in Coordination. Axiom shall prepare an occupancy plan
which shall include a schedule indicating critical interfaces for relocation of
furniture, equipment, new furniture and equipment and the relocation of Chase's
personnel. This schedule shall be distributed to the moving contractors,
Chase's affected departments, and other appropriate parties.
Axiom shall prepare and distribute reports associated with move-in occupancy
plan and other contracts as required by Chase.
16.2.3.4 Claims Evaluation. Axiom shall continue to evaluate any
remaining Contractor claims during the Post-Construction Phase.
16.2.3.5 Final Project Report. At the conclusion of the project, Axiom
shall prepare final Project accounting and close-out reports of all above
indicated report systems. These reports shall summarize for historical purposes
any items which are not self-explanatory.
16.2.3.6 Warranty Period. During the warranty period of the Project,
Axiom shall conduct warranty inspections every three months and shall report
deficiencies which should be covered by the warranty.
16.2.4 CONSTRUCTION COSTS
16.2.4.1 Construction Cost shall be the total of the final contract sums
of all separate contracts including general conditions, and other approved
Reimbursable Costs relating to the Project.
16.2.4.2 Construction Cost does not include the compensation of the
architect and engineer and the architect's and engineer's consultants, the cost
of the land, rights-of-way or other costs which are the responsibility of Chase
unless Chase specifically requires Axiom to manage and provide those services.
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This Agreement entered into as of the day and year first written above.
CHASE AXIOM
The Chase Manhattan Bank
/s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxxxx Xxxxxx
---------------------------- --------------------------------
Xxxxxx X. Xxxxxxxxxx Xxxxxx Xxxxxx
Senior Vice President Senior Vice President
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