PROJECT MANAGEMENT AGREEMENT
BY AND BETWEEN
NEW YORK UNIVERSITY SCHOOL OF MEDICINE,
an administrative unit of
NEW YORK UNIVERSITY
- OWNER -
AND
[
]
- PROJECT MANAGER -
PROJECTS
SCIENCE BUILDING
435 EAST 30TH STREET
NEW YORK, NEW YORK 10016
DATED AS OF
[
]
CONTENTS
ARTICLE
CAPTION
PAGE
I
PROJECT MANAGEMENT SERVICES .................................................. 3
II
TIME ........................................................................................................... 9
III
COMPENSATION ................................................................................... 10
IV
INDEMNITY ............................................................................................ 11
V
INSURANCE ............................................................................................ 13
VI
DEFAULT AND TERMINATION .......................................................... 15
VII
MISCELLANEOUS ................................................................................. 18
EXHIBIT A
EXCERPT FROM THE OWNER'S REQUEST FOR PROPOSALS
EXHIBIT B
PROJECT SCHEDULE
EXHIBIT C
DESCRIPTION OF PROJECT MANAGER'S DELIVERABLES
EXHIBIT D
LIST OF PROJECT MANAGER’S KEY PERSONNEL
EXHIBIT E
PROJECT MANAGER'S HOURLY RATE SCHEDULE
PROJECT MANAGEMENT AGREEMENT
This PROJECT MANAGEMENT AGREEMENT is made as of the [ ]
day of [
], [
], by and between New York University School of
Medicine, an administrative unit of New York University, a New York education corporation
with offices located at 550 First Avenue, New York, New York 10016 (the "Owner"), and [
], a [
] with offices located at [
]
(the
“Project Manager”).
WITNESSETH:
WHEREAS, the Owner intends to construct a new Science Building at the
southeast corner of the NYU Langone Medical Center campus located at the intersection of East
30th Street the F.D.R. Service Road consisting of fifteen stories above grade level and one below
grade level as further described herein; and
WHEREAS, the Owner has retained Ennead Architects LLP together with certain
engineers and other consultants (collectively the "Architect"), as the architect of record to (a)
prepare and complete the schematic design, design development and construction documents for
the Project; and (b) provide construction phase services during construction of the Projects; and
WHEREAS, the Owner has engaged the Project Manager to perform project
management services in connection with the Project; and
WHEREAS, the Project Manager has accepted such engagement; and
WHEREAS, the Owner and the Project Manager desire to set forth herein the
terms and conditions of the Project Manager's performance of such services; and
2
NOW, THEREFORE, in consideration of the mutual promises herein given, the
Owner and the Project Manager agree as follows:
ARTICLE I - PROJECT MANAGEMENT SERVICES
1.01
The Project. The Project consists of the construction of a new Science Building
as further described in the Excerpt from the Owner's Request for Proposals attached hereto as
Exhibit A.
1.02
Engagement of Project Manager.
The Owner's engagement of the Project
Manager as the Owner’s consultant to perform the services described herein (the “Project
Management Services”) for the Project and to carry out the other obligations of the Project
Manager under this Agreement are effective as of the date of this Agreement. The Project
Manager agrees to perform the Project Management Services and to carry out its other
obligations hereunder in a first-class, workmanlike manner and in accordance with sound
construction industry practice and standards, all applicable legal requirements and the
Construction Documents provided by the Owner’s Architects and Engineers for the Project
(collectively, the “A/E’s”).
1.03
Description of Services for the Project. The Project Manager shall perform all
services required for the proper management and supervision of the design, development,
construction and closeout of the Project, including, without limitation, the following:
(a)
Act as the Owner’s representative in connection with the
agreement between the Owner and the A/E.
3
(b)
Review and confirm or recommend revisions to the Owner’s
previously developed program for the Project. In the course of such review, meet with the A/E,
users of the affected spaces and the Owner’s Facilities staff.
(c)
Coordinate the development of test layouts and obtain sign-offs
(d)
Prepare and provide to the Owner, for the Owner’s approval, an
from end users.
overall schedule for design and construction of the Project. Recommend phasing of the
construction work and include phasing in the schedule to be approved by the Owner. Revise and
update the schedule as circumstances require. Monitor actual progress of design services and
construction work against the schedule and updates. Recommend to the Owner appropriate
actions in the event that actual progress of services or work is delayed, and assist the Owner in
implementing such actions. Prepare and provide to the Owner a regular management look-ahead
schedule.
(e)
Based on input from the Owner, the A/E, the Owner’s consultants
(if any) and contractors, review the Owner’s budget for design and all hard and soft costs of
construction. Based on input from the Owner, the A/E, the Owner’s consultants (if any) and
contractors, revise and update the program and budget as circumstances require.
(f)
Coordinate, supervise and administer the services and work of the
A/E and any other consultants engaged by the Owner. Prepare weekly meeting schedules and
conduct meetings of the Owner, the A/E and others throughout design of the Project, on a weekly
basis or more frequently as needed. Review minutes of meetings prepared by the A/E or other
consultants.
(g)
Supervise the investigation of existing conditions.
4
(h)
Provide direction to the A/E in developing value engineering and
other suggestions to reduce costs and improve quality, advise the Owner regarding such
suggestions and schedule and coordinate the implementation of such suggestions.
(i)
Consult with the Owner and the A/Es regarding any code issues.
(j)
Assist the Owner in selecting materials and making other decisions
affecting scope, design and cost.
(k)
Review for constructability the Schematic Design Documents,
Design Development Documents and Construction Documents and all other design submittals
for the Project for constructability. Notify the Owner and the A/E immediately of any errors or
omissions that are observed in such documents and follow up with the A/E to make certain that
such errors and omissions are corrected.
(l)
Assist the Owner in procuring any long-lead items.
(m)
Assist the Owner in procuring all required asbestos abatement for
the Project, including consultant services, bidding, abatement work and monitoring, and
coordinate and schedule such work.
(n)
Make recommendations to the Owner regarding construction
procurement strategy and possible division of the construction work into separate packages.
Recommend to the Owner highly-qualified construction contractors. Prepare requests for
proposals and bid documents for construction.
(o)
Administer the contractor proposal/bidding process, the selection
of construction contractors and contract awards.
(p)
Administer bidding and procurement of furnishings and
equipment.
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(q)
Coordinate staging and swing space.
(r)
Conduct weekly meetings with contractors and vendors throughout
construction. Review minutes of meetings prepared by the contractors and issue corrections if
necessary. Prepare minutes of such meetings when not prepared by others.
(s)
Review and advise the Owner regarding payment applications
from the A/E, the contractors and any other person engaged by the Owner and make specific
recommendations for payment. Maintain copies of all such applications and a record of all
payments.
(t)
Assist the contractors in arranging for all necessary utilities.
(u)
Assist the Owner in obtaining any permits or approvals that the
Owner is obligated to obtain.
(v)
Review permits and approvals obtained by others.
(w)
Assist the Owner in furnishing tests, inspections and reports that
the Owner is required to furnish.
(x)
Review the construction work and field conditions on a daily basis
after construction starts. Notify the Owner, the A/E and the contractors immediately of any
defects or deficiencies in the work that are observed and follow up with the A/E and the
contractors to make certain that such defects and deficiencies are corrected.
(y)
Notify the contractors and the Owner of any failure by any
contractor to maintain the site of the Project in a clean and sightly condition.
(z)
Prepare detailed monthly Anticipated Cost Reports and Change
Order/Claim Control Documentation showing budgeted amounts, actual costs to date and
6
estimated costs to complete. Expand or modify the format and content of such reports as
reasonably requested by the Owner.
(aa)
Notify the Owner immediately whenever it appears that the budget
for the Project might be exceeded or that the scheduled completion dates might not be met.
Advise the Owner regarding appropriate steps to bring costs in line with the budget, and progress
in line with the schedule, and assist the Owner in implementing such steps.
(bb)
Review and advise the Owner regarding insurance certificates and
policies submitted to the Owner by the A/E, contractors and any other person. Maintain an
updated set of all such certificates and policies.
(cc)
Review all shop drawings, product data and other submittals from
the contractors or others for the sole purposes of determining that they are distributed properly
and submitted and returned in a timely manner. Monitor the responses of the A/E and other
consultants to such submittals. Principal review of documents will be the responsibility of the
A/E. Provided that the Project Manager has performed its services properly, the Project Manager
shall not be responsible for delays due to untimely contractor submittals or extended A/E
reviews.
(dd)
Recommend to the Owner appropriate changes and proposed
change orders. Review and advise the Owner regarding requests for changes from the
contractors or others. Assist the Owner in negotiating any change orders.
(ee)
Advise the Owner regarding requests from the A/E or others for
compensation adjustments. Assist the Owner in negotiating any such adjustments.
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(ff)
Assist the Owner in carrying out all obligations of the Owner
under the Owner’s A/E agreement, construction contracts and any other agreements between the
Owner and third parties relating to the Project.
(gg)
Together with the Contractors, schedule and coordinate all
inspections of the construction work, including, without limitation, inspections by the New York
City Department of Buildings and the New York State Department of Health inspections.
(hh)
Assist the A/E in determining the dates of substantial and final
(ii)
Coordinate move-in by the Owner into the renovated spaces.
(jj)
Coordinate preparation of punchlists and performance of punchlist
(kk)
Review and assemble all permits, warranties, certificates of
completion.
work.
occupancy, final lien waivers and affidavits and other documentation submitted by the
contractors, the A/E or others in connection with close-out of the Project.
(ll)
Prepare minutes of all miscellaneous internal and coordination
meetings.
(mm) Provide the Owner with a final report of all costs incurred by the
Owner in connection with the Project.
1.04
Project Manager Deliverables. The Project Manager’s deliverable documentation
to be provided to the Owner shall include, without limitation, the documentation described in
Exhibit C.
8
1.05
Owner Representatives. For each aspect of the Project, the Owner shall designate
one or more Owner representatives to work with the Project Manager and provide decisions and
directions regarding the Project Manager’s services.
1.06
Scope of Authority. The Project Manager shall have only such authority as is
expressly granted to the Project Manager in this Agreement or in another writing signed by the
Owner. Nothing contained in this Agreement shall be construed as granting authority to the
Project Manager, on behalf of the Owner, to enter into or amend or terminate any agreement, to
waive or modify any provision of any agreement, to authorize the retention of any consultant, to
authorize the preparation of Design Development and Construction Documents, to approve or
modify the schedule, program or budget, to agree to any Additional Services under the A/E
agreements or to any change order under any construction contract or to incur any financial
obligation of any sort on behalf of the Owner.
1.07
Personnel. The Project Management Services will be performed by the key
personnel listed in Exhibit D hereto and such other personnel as the Owner may approve in
writing in the Owner’s absolute discretion. The Project Manager shall be fully responsible for all
Project Management Services performed by the Project Manager’s personnel.
ARTICLE II - TIME
2.01
Schedule.
The Project Manager shall perform and complete the Project
Management Services in accordance with the schedule for design and construction of the Project,
and any revisions thereof, approved by the Owner pursuant to Section 1.03(d) of this Agreement.
The Project Manager recognizes that time is of the essence of this Agreement and that any delay
in meeting the scheduled times will cause the Owner to incur substantial increased costs. The
Project Manager agrees to perform the Project Management Services as expeditiously as possible
9
and to use its best efforts to overcome any delays, regardless of cause, in order to allow
scheduled times to be met.
2.02
Suspension. The Owner may suspend all or any part of the Project Manager’s
performance under this Agreement at any time, in which event the scheduled date for the start of
construction and the scheduled duration of construction will be adjusted as necessary. The
Project Manager’s sole remedy in the event of such suspension will be termination pursuant to
Section 6.03.
ARTICLE III - COMPENSATION
3.01
Fee. As full compensation for the Project Manager’s performance of the Project
Management Services with respect to the Project and fulfillment of all other obligations of the
Project Manager under this Agreement with respect to the Project, the Owner shall pay the
] (the “Fee”).
Project Manager a fixed fee of [
3.02
Reimbursement of Costs. The Owner shall reimburse the Project Manager for the
Project Manager’s costs of reproduction, outside conferencing, messenger and overnight express
services and travel (excluding commutation), to the extent actually and necessarily incurred by
the Project Manager in the performance of the Project Management Services.
3.03
Adjustment of Compensation for Delay. The Project Manager shall be entitled to
equitable adjustment of the Fee in the event of delay (without fault of the Project Manager)
extending the time for performance of the Project Management Services beyond the time set
forth in Exhibit B.
3.04
Invoices. The Project Manager shall submit monthly invoices to the Owner for
the Fee, based on the progress of the Project and separate monthly invoices with supporting
documentation for reimbursable costs incurred during the preceding month.
10
The Project
Manager shall invoice, maintain records, and track costs for the Project in accordance with New
York State Department of Health financial reporting requirements. Payment shall be made
within ninety (90) days after approval of invoice. The parties acknowledge that payment of the
Fee in equal monthly installments is for convenience only and may not be in proportion to the
quantity of services performed by the Project Manager during any particular month.
3.05
Additional Services. Compensation for Additional Services shall be computed on
the basis of stipulated sums or the Project Manager's hourly rates as set forth in the Project
Manager's Hourly Rate Schedule attached hereto as Exhibit E.
ARTICLE IV - INDEMNITY
4.01
Project Manager’s Indemnity.
(a)
The Project Manager shall indemnify and shall hold harmless the Owner and its
officers, trustees, employees, agents, successors and assigns from and against any and all claims,
actions, demands, liabilities, losses, damages, judgments, fines, penalties and costs (including,
without limitation, reasonable attorneys’ fees and expenses) arising out of the negligent acts,
errors or omissions of the Project Manager or those for whom the Project Manager is legally
liable as a result of the performance of services under this Agreement.
(b)
Without limiting the scope of paragraph (a), as respects its operations under this
Agreement other than the performance of professional services, the Project Manager, to the
fullest extent permitted by law, shall indemnify and hold harmless the Owner and its officers,
trustees, employees, agents, successors and assigns from and against any and all claims, actions,
demands, liabilities, losses, damages, judgments, fines, penalties and costs (including, without
limitation, reasonable attorneys’ fees and expenses) arising out of injury to any persons,
including death, or damage to any property caused by, connected with or attributable to the
11
negligent acts, errors or omissions of the Project Manager or its officers, employees and
consultants under this Agreement, except only those claims, actions, demands, liabilities, losses,
damages, judgments, fines, penalties and costs caused by the sole negligence of the Owner.
(c)
All references to the Owner in this Section 4.01 shall include, and all provisions
of this Section 4.01 shall inure to the benefit of NYU Hospitals Center, New York University
and New York University Medical Center Condominium.
4.02
Owner’s Indemnity. The Owner shall indemnify, defend and hold harmless the
Project Manager from and against any and all claims, actions, demands, liabilities, losses,
damages, judgments, fines, penalties and costs (including, without limitation, reasonable
attorneys’ fees and expenses) arising in connection with any authorized Project Management
Services properly performed by Project Manager under this Agreement, except to the extent that
any such claim, action, demand, liability, loss, damage, judgment, fine, penalty or cost is proven
to have been caused by the negligence or misconduct of the Project Manager or its agents,
employees, subcontractors, suppliers, workers, invitees, successors or assigns, or from a breach
of this Agreement by the Project Manager.
4.03
Survival. The indemnities contained herein shall survive the termination of this
Agreement.
4.04
Indemnities of Contractors/Subcontractors. The Owner shall endeavor to obtain
from each contractor and subcontractor performing work in connection with construction of any
Project to agree in writing to indemnify, defend and hold harmless the Project Manager from and
against any and all claims for bodily injury and property damage that may arise from said
contractor’s or subcontractor’s Project operations.
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ARTICLE V - INSURANCE
5.01
Project Manager’s Insurance.
(a)
Throughout performance of the Project Management Services, the Project
Manager shall, at its sole expense (without any right of reimbursement), maintain the following
insurance issued by insurers licensed in the State of New York:
(i)
workers’ compensation insurance in accordance with the
applicable law or laws;
(ii)
employer’s liability insurance with limits of liability of at least
$1,000,000.00;
(iii)
commercial general liability insurance written with a combined
personal injury, bodily injury and property damage limit of at least
$2,000,000 per occurrence and $4,000,000 in the general
aggregate, including the following perils:
-
broad form blanket contractual liability for liability
assumed under the contract entered into with the Owner
relative to the Project;
-
premises/operations;
-
completed operations/products liability, including valuable
papers coverage, with 2-year extension beyond final
completion of the Project;
-
broad form property damage;
-
“XC&U” perils, where applicable; and
-
personal injury liability;
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Coverage will be endorsed to reflect inclusion of the additional
insureds listed in paragraph (b) of this Section 5.01 and to reflect
that coverage is to be primary for the Project Manager and the
additional insureds;
(iv)
professional liability insurance in an amount of not less than
$5,000,000 for each wrongful act and in the annual aggregate; and
(v)
comprehensive automobile liability insurance covering the use of
all owned, non-owned and hired vehicles, with a combined bodily
injury and property damage limit of at least $1,000,000.00.
(vi)
Excess liability/umbrella coverage in the amount of $5,000,000 per
occurrence and $5,000,000 in the aggregate.
(b)
All policies for the above insurance shall be endorsed to include the Owner, NYU
Hospitals Center and New York University Medical Center Condominium as additional insureds
in connection with the Project Management Services and to state that the additional insureds are
not to be responsible for payment of any premium for such additional insured status. The Project
Manager’s General Liability insurance also will include any other person working on the Project
on the Project Manager’s behalf.
(c)
All of the above insurance shall provide that coverage will not be cancelled or
materially changed without at least thirty days’ advance written notice to the Owner.
(d)
The Project Manager will submit to the Owner certificates of insurance reflecting
the above insurance, together with copies of all policies, within ten days after the execution of
this Agreement.
(e)
If any of the insurance required of the Project Manager shall expire or be altered
14
in any material respect, the Project Manager shall immediately advise the Owner’s Director of
Insurance, in writing, of such expiration or alteration, such policy shall be immediately renewed,
with the same limits and conditions, and such policy shall be maintained in effect for the
duration of such period.
5.02
Owner’s Insurance.
The Owner shall maintain, or cause the construction
contractors to maintain, property insurance on the Project and all materials, equipment and
supplies located at the Project that are to become a permanent part of the Project. Coverage shall
be on a replacement cost basis. Coverage will not include losses resulting from flood or
earthquake.
5.03
Waiver of Subrogation. To the extent that damages are covered by property
insurance during construction, the Owner and Project Manager waive all rights against each
other and against the contractors, consultants, agents and employees of the other for damages,
except such rights as they may have to the proceeds of such insurance. The Owner or Project
Manager, as appropriate, shall require of the contractors, consultants, agents and employees of
any of them similar waivers in favor of the other parties enumerated herein.
5.04
Insurance of Contractors/Subcontractors. The Owner shall endeavor to require
each contractor and subcontractor performing work in connection with construction of any
Project to agree in writing to name the Project Manager as an additional insured on its liability
insurance policies.
ARTICLE VI - DEFAULT AND TERMINATION
6.01
Project Manager’s Defaults.
(a)
The Owner shall have the right to terminate this Agreement immediately with
cause by giving written notice of termination to the Project Manager at any time after cause
15
exists. “Cause” means the failure of the Project Manager to perform, carry out or observe, or a
breach by the Project Manager of, any obligation, agreement, covenant, condition or restriction
of this Agreement to be performed or observed by the Project Manager as and when performance
or observance is due, which failure or breach continues for more than seven days after the Owner
gives written notice thereof to the Project Manager; provided, however, that if, by the nature of
such obligation, agreement, covenant, condition or restriction, such failure or breach cannot
reasonably be cured within such period of seven days, cause will not exist as long as the Project
Manager commences with due diligence the curing of such failure or breach within such period
of seven days and thereafter prosecutes with diligence and completes the curing of such failure
or breach.
(b)
If the Project Manager fails to carry out its obligations under this Agreement
within seven days following notice of such failure (or without notice in case of emergencies), the
Owner may, without prejudice to any other remedy that the Owner may have, cure such default
and set off against any payment due hereunder any amounts expended by the Owner in
connection with such cure and the amount of damages incurred by the Owner by reason of any
such default by the Project Manager.
6.02
Owner’s Defaults.
(a)
If the Owner defaults in the performance of its obligations under this
Agreement and fails to cure such default within sixty days after the giving of written notice by
the Project Manager, or in the case of a default that cannot reasonably be cured within such sixty
day period, the Owner fails to commence and thereafter continue with diligence to cure such
default within such sixty day period, the Project Manager thereafter may terminate this
Agreement by written notice to the Owner.
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(b)
In satisfaction of all damages incurred by the Project Manager by reason
of such default by the Owner, the Project Manager will be entitled to payment of all portions of
the Fee that have become payable through the date of such termination, all reimbursable costs
incurred by the Project Manager through such date and a Termination Fee equal to five percent
of the unearned balance of the Fee.
(c)
The Project Manager’s entitlement to terminate and recover such amounts
will constitute the Project Manager’s sole and exclusive remedy on account of default under this
Agreement and the Project Manager hereby waives all other rights and remedies that the Project
Manager may have at law or in equity with respect to a default by the Owner hereunder.
6.03
Termination by the Project Manager for Suspension of Performance.
If the
Owner suspends all or substantially all of the Project Manager’s performance under this
Agreement for a period or periods exceeding sixty days in the aggregate, the Project Manager
may terminate this Agreement upon seven days’ written notice to the Owner. In the event of
such termination, the Owner shall pay the Project Manager the balance of all compensation
hereunder that has become payable through the date of such termination.
6.04
Termination by the Owner for Convenience. The Owner may terminate this
Agreement, in whole or in part, without regard to default by the Project Manager upon thirty
days’ written notice to the Project Manager. In the event of such termination, the Owner shall
pay the Project Manager the balance of all compensation hereunder (or for the terminated part of
this Agreement) that has become payable through the date of such termination.
6.05
Project Manager’s Obligations After Termination. Upon any termination of this
Agreement, the Project Manager shall promptly do the following, unless otherwise directed by
17
the Owner and, in general, shall cooperate with the Owner in good faith and ensure an orderly
transition of the management of the Project if the Project is continuing:
(a)
discontinue all of the Project Management Services and make no
further commitments except as may be necessary for safety;
(b)
settle with the Owner all outstanding amounts due the Project
(c)
turn over to the Owner all books and records for the Project
Manager hereunder;
required to be kept by the Project Manager hereunder;
(d)
transfer to the Owner all contracts, commitments, agreements and
other documents relating to the Project Management Services;
(e)
transfer to the Owner all completed and uncompleted work
product, supplies, materials and other property produced as a part of or acquired in the
performance of the Project Management Services; and
(f)
take such other action as the Project Manager may reasonably
deem necessary or as the Owner may reasonably direct.
The obligations of this Section shall survive termination of this Agreement.
ARTICLE VII - MISCELLANEOUS
7.01
Notices.
All notices, demands, consents, requests or other communications
required or permitted to be given pursuant to this Agreement will be in writing and will be
deemed validly given if mailed by certified or registered mail, return receipt requested, postage
prepaid, or by personal delivery, or sent by facsimile transmission (followed by mailing a copy
of such notice by certified or registered mail, return receipt requested, postage prepaid), or by
overnight courier service, addressed to the parties as follows:
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OWNER:
Vicki Match Suna, A.I.A.
Senior Vice President and Vice Dean for Real
Estate Development and Facilities
NYU Langone Medical Center
339 East 28th Street
New York, New York 10016
with a copy to:
Annette B. Johnson, Esq.
Office of Legal Counsel
NYU Langone Medical Center
530 First Avenue HCC-15
New York, New York 10016
PROJECT MANAGER:
[
]
or at such other address as either party may have furnished in writing to the other party as a place
for the service of notice pursuant to this Agreement. Any notice to or demand on any party
hereto will be deemed to have been duly given on (a) the date three after posting if transmitted
by mail, (b) the date of transmission with telephonic confirmation if transmitted by facsimile or
(c) the date of receipt if personally delivered or sent by overnight courier service, whichever first
occurs.
7.02
Entire Agreement. This Agreement constitutes the entire contract between the
parties. No provisions of this Agreement will 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
which the change, 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 will be effective or binding unless such waiver is in writing and signed by the party
claimed to have given, consented to or suffered the waiver.
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7.03
Governing Law. This Agreement shall be governed by the internal laws of the
State of New York.
7.04
Confidential Information.
The Project Manager shall treat all information
supplied to the Project Manager by the Owner or Architects regarding the Project as confidential
and proprietary information and shall not permit its release to others, or make any public
announcement or publicity releases regarding the Project, without the Owner’s prior written
authorization.
7.05
Binding Effect. This Agreement shall inure to the benefit of and be binding on
the parties hereto and their respective successors and assigns.
7.06
Nature of Relationship. The Project Manager is an independent contractor, with
full power and authority to select the means, methods and manner of performing its obligations
under this Agreement.
7.07
Force Majeure. Neither party shall be liable for failure to perform any obligation
under this Agreement when prevented by force majeure causes beyond the reasonable control of
such party, such as strike or lockout affecting more than the Project, breakdown, accident, order
or regulation of any governmental authority or war or other emergency. The time within which
such obligation will be performed shall be extended for a period of time equivalent to the delay
from such cause.
7.08
Licenses and Permits. If any government permit or license at any time is required
for the proper and lawful conduct of the Project Manager’s business, the Project Manager, at its
own expense, will obtain such license or permit, and at all times comply with the terms and
conditions thereof.
20
7.09
Mechanic's Liens. In the event that a mechanic's lien is filed against the Project
on account of any labor or materials provided pursuant to this Agreement, the Project Manager
shall cause such lien to be discharged within twenty days after notice from the Owner to do so.
If the Project Manager fails to do so, the Owner shall have the right, in addition to other remedies
for a breach by the Project Manager, to cause such mechanic’s lien to be discharged and the
expense thereof, including, without limitation, any payment or deposit and the amount of any
obligation discharged, as well as its attorneys’ fees in connection therewith, shall be charged to
and paid by the Project Manager or, at the option of the Owner, deducted from amounts
otherwise payable to the Project Manager under this Agreement. This Section 7.09 shall apply
only to liens filed by persons performing services on behalf of the Project Manager hereunder.
The Project Manager shall have no obligation for discharge of liens filed by contractors,
subcontractors, suppliers or others hired directly or indirectly by the Owner.
7.10
Scope of Responsibility. The Project Manager shall not have control over or
charge of and shall not be responsible for:
(a) construction means, methods, techniques,
sequences or procedures or safety programs in connection with the Project; (b) the A/E’s, and
their respective agents and employees; (c) the contractors and subcontractors hired to construct
the Project and their respective agents and employees; (d) any other persons involved in the
Project; provided, however, that the Project Manager shall be responsible for the proper
performance of its services under this Agreement; (e) the design and the specification of the
work or the specification and selection of the equipment beyond the extent referenced in Section
1.02(q).
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7.11
Non-Discrimination. The Project Manager shall not discriminate against any
employee or applicant for employment because of race, creed, color, sex, national origin, age,
disability or marital status.
7.12
Binding Effect and Successors and Assigns. This Agreement is binding upon
each of the parties hereto and its partners, successors, assigns and legal representatives in respect
to all covenants, agreements and obligations contained in this Agreement. The Project Manager
shall not assign this Agreement nor sublet it as a whole without the prior written consent of the
Owner, and any attempted assignment without such consent shall be void. The Owner may
assign this Agreement or the Owner's rights hereunder, without the Project Manager's consent.
7.13
Federal Emergency Management Agency. As certain funding for the Project may
be provided by the Federal Emergency Management Agency ("FEMA"), the Project Manager
agrees as follows with respect to the provisions of this Agreement:
(a)
The Project Manager agrees to comply with Executive Order 11246 of September
24, 1965, entitled "Equal Employment Opportunity," as amended by Executive
Order 11375 of October 13, 1967, and as supplemented in Department of Labor
regulations 41 CFR chapter 60.
(b)
The Project Manager agrees that any federal agency providing funding for the
Project Manager's work and services, including FEMA funding, and the
Comptroller General of the United States shall have access to the Project
Manager's books and records.
(c)
The Project Manager agrees that the federal, state and local laws with which it
must comply include the Contract Work Hours and Safety Standards Act Sections
103 and 107 (40 U.S.C. 327-330) as supplemented by Department of Labor
regulations (29 CFR part 5); Section 306 of the Clean Air Act (42 U.S.C. 1857(h);
Section 508 of the Clean Water Act (33 U.S.C. 1368); Executive Order 11738;
and Environmental Protection Agency regulations (40 CFR part 15).
(d)
The Project Manager agrees to comply with all applicable provisions of the
Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department
of Labor regulations (29 CFR part 3).
22
7.14
No Exclusion. The Project Manager and each person signing on behalf of the
Project Manager represents and warrants that the Project Manager and each parent and/or
affiliate of the Project Manager has not been suspended, disqualified, debarred or otherwise
excluded from or declared ineligible to bid or perform work for any governmental agency or
otherwise prohibited from participation in any federal or state program, including Medicare or
Medicaid (collectively, "Program"), and to the best of its knowledge, there are no pending civil
anti-trust or criminal investigations or pending or threatened debarments or exclusions of the
Project Manager from any Program. The Project Manager covenants to notify Owner in writing
as soon as practicable if the Project Manager is the subject of any civil anti-trust or criminal
investigation, or is excluded, barred or suspended from participation in any Program and to
refrain from employing or contracting for purposes of providing any work or services to Owner
with any individual or entity known by the Project Manager to be sanctioned, suspended or
excluded from participation in any Program. The Project Manager shall include the provisions
of this "No Exclusion" Article in each subcontract agreement (of any tier) that the Project
Manager enters into under this Agreement and shall cause its subcontractors and their
subcontractors of any tier to so include such provisions.
Each of the representations and
warranties made in this "No Exclusion" Article is a material representation of fact by the Project
Manager upon which the Owner has relied as an essential inducement to enter into this
Agreement. In addition to any other remedies available to the Owner, the Owner may terminate
this Agreement for cause in the event that any representation or warranty made in this Article is
untrue at the time of entering into this Agreement or becomes untrue at any time during the term
of this Agreement.
23
7.15
Compliance. The Project Manager agrees to prepare and deliver to the Owner
certifications of the Project Manager's ongoing compliance with the foregoing provisions as may
reasonably be requested by the Owner in writing during the term of this Agreement.
7.16
Extent of Agreement. This Agreement, including the recitals and Exhibits, which
are incorporated herein, represents the entire and integrated agreement between the Owner and
the Project Manager and supersedes all prior negotiations, representations or agreements,
whether written or oral. This Agreement may be amended only by written instrument signed by
both the Owner and the Project Manager.
[Signatures appear on the next page]
24
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
OWNER:
NEW YORK UNIVERSITY SCHOOL OF
MEDICINE, an administrative unit of
NEW YORK UNIVERSITY
By:______________________________
Name: ___________________________
Title:____________________________
PROJECT MANAGER:
[
]
By:______________________________
Name:____________________________
Title:_____________________________
25
EXHIBIT A
EXCERPT FROM THE OWNER'S REQUEST FOR PROPOSALS
EXHIBIT B
PROJECT SCHEDULE
EXHIBIT C
DESCRIPTION OF PROJECT MANAGER'S DELIVERABLES
1
DESCRIPTION OF PROJECT MANAGER’S DELIVERABLES
1.
Meeting Minutes - To the extent not provided by others, minutes of all
A/E meetings, contractor meetings, coordination meetings, meetings with Owner’s
representatives and user groups, internal Owner meetings and miscellaneous meetings
attended by the Project Manager.
2.
Action Lists and Plans - Lists for each aspect of the Project describing
all open deliverables for all Project participants including the Owner, the Project Manager,
A/E’s, consultants, contractors and others, to be updated weekly as required to reflect changes
in status. The Plans will address the coordination of construction, design and user teams to
resolve open matters so as not to delay progress of the Project
3.
Commissioning Plan and Pre-Occupancy Inspection Book - If so
required by the Owner, a plan for commissioning the facility and a booklet prepared for the
Article 28 Pre-Occupancy Inspection as required by the Department of Health in order for the
facility to be allowed to provide for the delivery of medical services reflecting.
4.
Executive Summary Update Reports - Report detailing, in an
executive-level format, overall status of each aspect of the Project, schedule status, budget
status and potential issues, to be updated monthly.
5.
Project Implementation Charts (PIC’s) - Charts showing actual
progress of each aspect of the Project, to be updated daily or as otherwise required. The PIC’s
shall indicate all critical dates, including, without limitation, all RFP dates; A/E, consultant,
vendor and contractor proposal/bid, interview and award dates; contract review periods;
design, valve engineering and financial/budget presentation dates; drawing review and
comment periods; pre-purchase equipment bid, evaluation and award dates; permit approval
process dates; subcontractor bid, evaluation and award dates; critical equipment shutdown
dates; A/E, consultant, vendor requisition review and approval periods; CON approval
periods; punch list periods and final approval dates; Owner move dates; as-built
documentation review periods and sign-off dates including warranties, preventative
maintenance agreements, new equipment training and so forth; and all dates requiring
decisions by the Owner.
6.
Two Week Look Ahead - A schedule reviewing in detail all Project
activities that will occur in the next two weeks, to be updated weekly.
7.
Budgets - Base-line budgets for all aspects of the Project, to be
reviewed and updated with the input of the A/E’s and contraction at various points to insure
that all aspects of the Project stay within budget without compromising the required scopes of
work. Budget updates shall be performed at the following points for each aspect of the
Project’s end of the Schematic Design Document phase; and 75% completion of Construction
Documents.
8.
Anticipated Cost Reports (ACR’s) - Monthly reports for each aspect of
the Project trading budget, contract amounts, invoices and requisitions, change orders and
forecasted extra expenses.
9.
Change Order/Claim Control Reports - Monthly reports for each aspect
of the Project showing all approved and pending change orders and claims.
1
10.
Phasing/Logistics Plans - An overall phasing/logistics plan for each
aspect of the Project, to be revised as required throughout the Project.
11.
A Move Action Plan
2
EXHIBIT D
LIST OF PROJECT MANAGER'S KEY PERSONNEL
EXHIBIT E
PROJECT MANAGER'S HOURLY AND MONTHLY RATE SCHEDULE