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SIXTH AMENDMENT AGREEMENT
THIS SIXTH AMENDMENT AGREEMENT is made and entered into this
.2777-4 day of , 2006 , by and between the CITY OF
ELGIN, an Illinois m nicipal corporation (hereinafter referred to
as the "City" ) and GILBANE BUILDING COMPANY, a Rhode Island
corporation (hereinafter referred to as "Construction Manager" ) .
WHEREAS, the City and Construction Manager have previously
entered into an Agreement dated June 14, 2000, relating to the
Construction Manager providing certain professional services for
the City's proposed new recreation center (hereinafter referred to
as the "Agreement" ) ; and
WHEREAS, the Agreement provides that it is the expectation of
the parties that the Recreation Center Project (hereinafter
referred to as the "Project" ) will be constructed in phases; and
WHEREAS, the Agreement further provides that upon receipt of
all subcontract and supplier bids for the Project or Phase thereof,
the Construction Manager shall propose a Guaranteed Maximum Price
which sum shall be sum of the estimated cost of work for the
Project or Phase thereof and which shall also include the
Construction Manager's contingency, the Construction Manager's fee
and the owner' s allowance, if any; and
WHEREAS, the Agreement further provides that upon acceptance
by the City the Guaranteed Maximum Price proposal for the Project
or a Phase thereof and its basis shall be set forth in amendments
to the Agreement; and
WHEREAS, the City and the Construction Manager have previously
entered into a First Amendment Agreement dated July 11, 2001,
providing for a guaranteed maximum price for the Parking Garage
Phase of the Project in the amount of $6, 217, 945; and
WHEREAS, the City and the Construction Manager have previously
entered into a Second Amendment Agreement dated July 25, 2001,
providing for a guaranteed maximum price for the Underground and
Structural Work Phase of the Project in the amount of $6, 087 , 650;
and
WHEREAS, the City and the Construction Manager have previously
entered into a Third Amendment Agreement dated February 28, 2002 ,
providing for a guaranteed maximum price for the MEP, Building
Enclosure, and Interior Finishes Phase of the Project in the amount
of $19, 953 , 459 ; and
WHEREAS, the City requested the Construction Manager to
perform construction phase services for the Symphony Way and Grove
Avenue streetscape improvements work; and
.
WHEREAS, the City and the Construction Manager have previously
entered into a Fourth Amendment Agreement dated August 8, 2002 ,
providing for a guaranteed maximum price for the pool
construction/climbing wall and Symphony Way and Grove Avenue
streetscape improvements work in the amount of $3 , 712 , 487 ; and
WHEREAS, the City and the Construction Manager have previously
entered into a Fifth Amendment dated March 14, 2005, providing for
trade contractor change orders, additional reimbursable costs, and
testing services costs and further agreement between the City and
Construction Manager regarding contract contingency and savings in
the amount of $568, 051; and
WHEREAS, the subcontracts with PBMC and Johnson Blacktop
remain open and have resulted in litigation which has required the
Construction Manager to obtain outside legal services to defend and
resolve such litigation; and
WHEREAS, the costs of the legal services for such outside
litigation has exceeded the Construction Manager ' s available
contingency amount of $504 , 591; and
WHEREAS, Section 6 . 1 . 6 . 5 of the Agreement provides in part
that legal costs, other than those arising from disputes solely
between the Owner and the Construction Manager, reasonably incurred
by the Construction Manager in the performance of the Work and with
the Owner ' s written permission, which permission shall not be
unreasonably withheld, are eligible Costs of Work; and
WHEREAS, the Construction Manager has completed the Project
and the City and the Construction Manager desire to enter into this
Sixth Amendment Agreement to provide for an adjustment in the
Construction Manager's contract contingency amount up to a total of
$985, 863 , as needed to resolve the aforementioned remaining open
subcontractor contracts, and in accordance with the contingency
provisions included in paragraph 1 (D) of the Fourth Amendment
Agreement; and
WHEREAS, the Fourth Amendment Agreement of Agreement reduced
the Construction Manager's contingency from $985, 863 (calculated at
three percent (3%) pursuant to Section 2 . 2 . 2 of Agreement) to
$504, 591, which is $481, 272 less than the contingency amount
provided for in Agreement of $985, 863 . The Construction Manager
agreed to do this in cooperation with the City to keep the
Guaranteed Maximum Price within the City's project budget . At the
time of the Fourth Amendment Agreement, the parties hereto agreed
that in the event of the incurring of additional costs
contractually and properly reimbursable as a Cost of Work in excess
of the reduced contingency amount of $504, 591, provided by the
Fourth Amendment Agreement, then the Construction Manager may
properly charge such additional costs against the $985, 863 provided
by Agreement and that the City would provide for this payment to
the Construction Manager by Change Order.
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NOW, THEREFORE, for and in consideration of the mutual
undertakings as contained herein, and the mutual undertakings as
contained in the Agreement between the City and the Construction
Manager of June 14 , 2000, as amended by the First Amendment
Agreement between the City and the Construction Manager dated
July 11, 2001, as amended by the Second Amendment Agreement between
the City and Construction Manager dated July 25, 2001, as amended
by the Third Amendment Agreement between the City and Construction
Manager dated February 28, 2002, as amended by the Fourth Amendment
Agreement between the City and Construction Manager dated August 8,
2002 , and as amended by the Fifth Amendment Agreement between the
City and Construction Manager dated March 14, 2005, and other good
and valuable consideration, the receipt and sufficiency of which is
hereby mutually acknowledged, the parties hereto hereby agree as
follows :
1 . That the Agreement between the City and Construction
Manager dated June 14, 2000, as amended by the First Amendment
Agreement between the City and the Construction Manager dated
July 11, 2001 ; and as amended by the Second Amendment Agreement
between the City and Construction Manager dated July 25, 2001; as
amended by the Third Amendment Agreement dated February 28, 2002 ;
as amended by the Fourth Amendment Agreement dated August 8, 2002;
and as amended by the Fifth Amendment Agreement dated March 14,
2005, is hereby further amended as follows :
Pursuant to the Fourth Amendment Agreement, the Construction
Manager ' s available contingency is hereby adjusted upward from
$504 , 591 to $985, 863 to provide additional available funds to
compensate the Construction Manager for legal costs incurred by the
Construction Manager in connection with the PBMC and Johnson
Blacktop litigation.
2 . The reasons for the changes as outlined by the Sixth
Amendment Agreement are germane to the original contract as signed;
the events necessitating the changes outlined by this Sixth
Amendment Agreement were unforeseeable at the time of execution of
the original agreement; and this Sixth Amendment Agreement is in
the best interests of the City and is authorized by law.
3 . That except as amended herein the terms and provisions of
the Agreement between the City and the Construction Manager of
June 14 , 2000, as amended by the First Amendment Agreement dated
July 11 , 2001, and further amended by the Second Amendment
Agreement dated July 25, 2001, and further amended by the Third
Amendment Agreement dated February 28, 2002, and further amended by
the Fourth Amendment Agreement dated August 8, 2002 , and further
amended by the Fifth Amendment Agreement dated March 14 , 2005,
shall remain in full force and effect .
4 . That in the event of any conflict between the provisions
of this Sixth Amendment Agreement and the Agreement of June 14,
2000, as amended by the First Amendment Agreement dated July 11,
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2001 , and further amended by the Second Amendment Agreement dated
July 25, 2001, and the Third Amendment Agreement dated February 28,
2002, and further amended by the Fourth Amendment Agreement dated
August 8 , 2002 , and the Fifth Amendment Agreement dated March 14,
2005, the terms of this Sixth Amendment Agreement shall control .
IN WITNESS WHEREOF the parties have entered into and executed
this Sixth Amendment Agreement on the date and year first written
above.
CITY OF ELGIN GILBANE BUILDING COMPANY
By By
City Manager
Attest: Attest :
City Clerk .
4,)
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