THIS PROJECT MANAGEMENT
AGREEMENT (this “Agreement”) is made and entered into as by and between
<<enter name>> (“Company”), and <<enter name>>
(“Project Manager”).
R
E C I T A L S
WHEREAS,
the Company is in the business of purchasing lots, building properties, and
reselling those properties to low-income home buyers (the “Project”).
WHEREAS, the Company desires
to appoint the Project Manager to provide certain services for the Company with
respect to overseeing the development of the Project until all development work
is completed and Project Manager desires to accept such appointment;
NOW, THEREFORE, in
consideration of the foregoing, of the mutual promises of the parties hereto
and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it is agreed as follows:
1.
Appointment. The Company
hereby appoints the Project Manager to render services to the Company, and
confirms and ratifies the appointment of the Project Manager with respect to
services rendered for the Company to date, in supervising and overseeing the
development of the Project as herein contemplated.
2.
Authority. The Project
Manager shall have the authority and the obligation to perform the services
described in Paragraphs 3, 4, 5 and 6 below. Project
Manager’s services shall be
performed in the name of and on behalf of the Company.
3.
Acquisition of Property
(a)
Identify properties suitable
for acquisition
(b)
Assist the Company in
entering into purchase contracts for the properties identified
(c)
Assist the Company in
closing on the purchases
4. Pre-Construction.
The Project Manager shall perform all of the following services:
(a)
When required for particular
properties, prepare or obtain an environmental impact assessment of the
proposed development.
(b)
Choose the products and
materials necessary to equip the Project in a manner consistent with its
intended use.
(c)
If appropriate, prepare
pre-qualification criteria for bidders interested in the Project, establish
bidding schedules and conduct pre-bid conferences to familiarize bidders with
the bidding documents and management techniques with any special systems,
materials or methods.
(d)
Assist the Company in
dealing with local organizations, adjoining landowners and other parties
interested in the development of the Project.
(e)
Secure all necessary land
use approvals.
(f)
Select the architect
(“Architect”) and other professional advisors.
(g)
Negotiate and cause to be
executed in the name of the Company, agreements for architectural, engineering,
testing or consulting services for the Project.
(h)
Negotiate and determine the
terms of construction financing.
(i)
For particular properties,
prepare a preliminary critical path schedule.
5. Plans and Specifications. The Project
Manager shall perform the following services:
(a)
Coordinate the preparation
of the plans and specifications (the “Plans and
Specs”) for particular
properties and recommend alternative solutions whenever design details affect
construction feasibility or schedules.
(b)
Ensure that the Plans and
Specs are in compliance with all applicable codes, laws, ordinances, rules and
regulations.
(c)
In collaboration with the
Architect, establish and implement procedures for expediting the processing and
approval of shop drawings and samples.
6. Construction Services. The Project Manager
shall perform the following services:
(a) Establish and implement
appropriate administrative and financial controls for the construction of the
Project, including, but not limited to:
i. Coordination and administration of the
Architect or engineer, the general contractor and other contractors,
professionals and consultants employed in connection with the Construction or
rehabilitation of the Project; ii.
Administration of any Construction contracts on behalf of the Company; iii. Participation in conferences and the
rendering of such advice and assistance as will aid in developing economical,
efficient and desirable design and Construction procedures;
iv.
The rendering of advice and
recommendations as to the selection procedures for and selection of
subcontractors and suppliers;
v.
The submission of any
suggestions or requests for changes which could in any reasonable manner
improve the design, efficiency or cost of the Project; vi. Applying for and maintaining in full
force and effect any and all governmental permits and approvals required for
the lawful Construction of the Project;
vii. Compliance with all terms and conditions applicable to Company or
the Project contained in any governmental permit or approval required or
obtained for the lawful Construction of the Project, or in any insurance policy
affecting or covering the Project, or in any surety bond obtained in connection
with the Project; viii. Furnishing such
consultation and advice relating to the Project as may be reasonably required; ix. Keeping the Company fully informed on a
regular basis of the progress of the design and Construction of the Project,
including the preparation of such reports as are provided for herein or as may
reasonably be requested; and
x. Giving or making Company’s instructions,
requirements, approvals and payments provided for in the agreements with the
Architect, general contractor, and other contractors, professionals and
consultants retained for the Project.
(b) Cause Construction of
the Project to be performed in a diligent and efficient manner, consistent with
good workmanship, including:
i. Obtain required building permits; ii. Ensuring all Construction is consistent
with the Plans and Specs, including any required off-site work, as they may be
amended with consent of any Lender; and
iii. General administration and supervision of
Construction of the Project, including but not limited to activities of
subcontractors and their employees and agents, and others employed by the
Project in a manner which complies in all respects with the Plans and Specs; iv. Compliance with any and all zoning
regulations, county ordinances, including health, fire and safety regulations,
and any other requirements of federal, state and local laws, rules, regulations
and ordinances applicable to
Construction of the Project;
and
v. Insuring that the Project is constructed
free and clear of all mechanics’ and materialmen’s liens.
(c)
Receive bids, prepare bid
analysis and make recommendations to the Company for award of contracts or
rejection of bids.
(d)
Investigate and recommend a
schedule for purchase by the Company of all materials and equipment requiring
long lead time procurement.
(e)
Coordinate schedule with
Architect and expedite and coordinate delivery of purchases.
(f)
Develop and implement a
procedure for the review and processing of applications by subcontractors for
progress and final payments and monitor disbursement and payment of amounts
owed Architects and the subcontractors.
(g)
Record the progress of the
Project and submitting written progress reports to the Company and Architect,
including the percentage of completion and the number and amounts of change
orders.
(h)
Keep, or cause to be kept,
accounts and cost records as to the Construction of the Project; assemble and
retain all contracts, agreements and other records and data as may be necessary
to carry out Project Manager’s functions hereunder. (i) Make available to the
Company, during normal business hours and upon the Company’s written request,
copies of all material contracts and subcontracts. (j) Provide, and
periodically update, Project Construction time schedule which coordinates and
integrates Architect’s services with Construction schedules.
(k)
Coordinate the work of
Architect to complete the Project in accordance with the objectives as to cost,
time and quality, and provide sufficient personnel at the Project with
authority to achieve such objectives.
(l)
Provide a detailed schedule
of realistic activity sequences and durations, allocation of labor and
materials and processing of shop drawings and samples.
(m)
Provide regular monitoring
of the schedule as Construction progresses, identify potential variances
between scheduled and probable completion dates, review the schedule for work
not started or incomplete, recommend to the Company adjustments in the schedule
to meet the probable completion date, provide summary reports of such
monitoring, and document all changes in the schedule.
(n)
Recommend courses of action
to the Company when requirements of subcontracts are not being fulfilled.
(o)
Revise and refine the
approved estimate of Construction cost, incorporate changes as they occur, and
develop cash flow reports and forecasts as needed.
(p)
Provide regular monitoring
of the approved estimate of Construction costs, show actual costs for
activities in process and estimates for uncompleted tasks, identify variances
between actual and budgeted or estimated costs and advise the Company whenever
projected costs exceed budgets or estimates.
(q)
Develop and implement a
system for review and processing of change orders as to Construction of the
Project.
(r)
Deliver to the Company a
dimensioned as-built ALTA/ACSM Survey of the real property (locating only
buildings) and as-built drawings of the Project Construction.
(s)
Obtain an Architect’s
certificate that the work on the Project is substantially complete, and inspect
the Architect’s work.
(t)
Secure all building code
approvals and obtain Certificates of Occupancy for all of the residential units
of the Project.
(u)
Take all other actions
necessary to provide the Company with a facility ready for lease to tenants.
(v)
Maintain, or cause to be
maintained, at its expense, all office and accounting facilities and equipment
necessary to adequately perform the foregoing functions.
7. Other Services. The Project Manager shall
to perform the following services pursuant to this Agreement:
(a)
Locate, evaluate the
suitability of, negotiate the purchase or lease of, or arrange the financing
for the land on which the Project is to be located.
(b)
Perform or assist in the
marketing or leasing of units in the Project.
(c)
Environmental processing,
construction management, and marketing, counseling, and home buyer education
8. Compensation.
(a)
The Project Manager will be
receiving CHDO funds directly from the City of _____ to be used, in part, to
compensate it for some of the expenses that it has incured in providing the
services called for under this Agreement. If economically feasible the Company
shall include a line-item within the development budget of the individual
properties in an amount to be mutually agreed upon by the parties to be used as
additional compensation to pay for the services provided by the Project Manager
for that property
(b)
The Project Manager shall
receive the following additional compensation for each house
i. Environmental Processing: $500 ii. Construction Management: $5,000 iii. Marketing/Counseling/Education: $5,150
9.
Reimbursement of Company
Expenses. In addition to the Fee payable herein, the Project Manager shall
receive reimbursement from the Company for any costs, fees or expenses paid to
third parties and incurred in connection with the construction and development
of the Project, including, without limitation of the generality of the
foregoing, payments to any third party constructor for construction,
engineering, appraisal market study, surveying or similar services and payments
of any cash escrows or letters of credit, attorneys fees, accountants fees, or
other consulting fees incurred in connection with the Project.
10.
Fee Unconditional. It is
expressly understood and agreed by the parties hereto that the Fee and the
reimbursement of costs incurred by the Project Manager in connection with the
development of the Project shall be payable without regard to the income or
profits of the Company.
11.
Withholding of Fee Payments.
In the event that (i) the Project Manager shall not have substantially complied
with any material provisions under this Agreement, or (ii) any construction
financing commitment, or any agreement entered into by the Company for
construction financing related to the Project shall have terminated prior to
its respective termination date(s), or (iii) foreclosure proceedings shall have
been commenced against the Project by a Bond Lender, then the Project Manager
shall be in default of this Agreement, and the Company shall withhold payment
of any installment of the fee not yet earned by the Project Manager. All
amounts so withheld by the Company shall be promptly released to the Project
Manager only after cures of the default justifying the withholding, as
demonstrated by evidence reasonably acceptable to the Company.
12.
Right of Offset. The Company
shall have the right to offset amounts owed hereunder to the Project Manager
against any obligation of the Project Manager to the Company or its Members,
whether such obligation is incurred in its capacity as Project Manager,
Managing Member, guarantor or otherwise.
13.
Successors and Assigns,
Termination. This Agreement shall be binding on the parties hereto and their
heirs. successors, and assigns.
14.
Severability. If any one or
more of the provisions of this Agreement shall for any reason be held invalid,
illegal or unenforceable, the remaining provisions of this Agreement shall
remain unimpaired and shall continue in full force and effect.
15.
Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be deemed to
be an original copy and all of which together shall constitute one agreement
binding on all parties hereto, notwithstanding that all the parties shall not
have signed the same counterpart.
16.
No Continuing Waiver. The
waiver by any party or any breach of this Agreement shall not operate or be
construed to be a waiver of any subsequent breach.
17.
Entire Agreement. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter as of the date hereof and supersedes all prior
understandings, representations, proposals, discussions and negotiations
whatsoever, whether oral or written, between the parties hereto.
18.
Applicable Law. This
Agreement shall be construed and enforced in accordance with the laws of the
State.
IN WITNESS WHEREOF, the
parties hereto agree to the above terms and have caused it to be executed in
their names by their duly authorized agent.
<<enter Company's
name>>
By:
_____________________________
signature
_____________________________
print name and title
Date: __________________________
<<enter Project Manager's name>>
By:
_____________________________
signature
_____________________________
print name and title
Date: __________________________
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