01-92 I
Resolution No. 01-92
RESOLUTION
AUTHORIZING EXECUTION OF AN AGREEMENT WITH M. I . C. , INC.
FOR CONSTRUCTION MANAGER SERVECES FOR THE
PHASE I RIVERFRONT/CENTER C TY PROJECT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Joyce A. Parker, City Manager, and Dolonna Mecum,
City Clerk, be and are hereby authorized and directed to execute
an agreement on behalf of the City of Elgin with M. I .C. , Inc . for
construction manager services for the Phase I Riverfront/Center
City Project, a copy of which is attache hereto and made a part
hereof by reference .
sl Ed Schock
Ed Schock, Mayor
Presented: April 11, 2001
Adopted: April 11, 2001
Omnibus Vote : Yeas 7 Nays 0
Attest :
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
Am.
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AGREEMENT
THIS AGREEMENT is made and entered into
this /F-Aday of 04Li /,
2001, by and between the CITY OF ELGIN, an Illinois mun* ipal
corporation (hereinafter referred to as "OWNER") and M. I .C. ,
Inc . , an Illinois Corporation (hereinafter referred to as
"CONSTRUCTION MANAGER" ) .
WHEREAS, the OWNER desires to engage the CONSTRUCTION MANAGER to
furnish certain professional services in connection with
construction of the Phase I Riverfront/Cepter City Project, which
generally includes improvements to Walton Island, Shoreline and
walkway enhancements to the eastbank on the Fox River between
Highland Avenue and Kimball Street and ¶ he construction of two
overlooks adjacent to the Kimball Street tam.
NOW, THEREFORE, it is hereby agreed by and between the OWNER and
the CONSTRUCTION MANAGER that the OWNER does hereby retain the
CONSTRUCTION MANAGER to act for and represent it in all
construction matters involved in the PROJECT, subject to the
following terms and conditions and stipulations, to-wit :
ARTICLE 1
All work hereunder shall be performed un er the direction of the
Director of Economic Development of t e Owner, herein after
referred to as the "Manager" .
ARTICLE 2
CONSTRUCTION MANAGER' S
SCOPE OF SERVICES
The Construction Manager shall perform the services described in
this Article. The Construction Manager shall furnish
construction administration and management to perform the Project
in an expeditious and economical manner consistent with the
interests of the Owner . The Owner sh 11 endeavor to promote
harmony and cooperation among the Owner, Architect, Construction
Manager and other persons or entities eMployed by the Owner for
the Project . The services to be provided under Paragraph 2 . 1 and
2 .2 constitute the Preconstruction Phase services .
2 .1 PRECONSTRUCTION PHASE
2 . 1. 1 CONSULTATION
The Construction Manager with the .Prchitect shall jointly
schedule and attend regular meetings with the Owner and
Architect .
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The Construction Manager shall consult with the Owner and
Architect regarding site use and improvements, and the selection
of materials, building systems and equipment . The Construction
Manager shall provide recommendations on construction
feasibility; actions designated to minim ze adverse effects of
labor or material shortages; time requir ments for procurement,
installation and construction completion; ,and factors related to
construction cost including estimates of lalternative designs or
materials, preliminary budgets and possible economies .
2 . 1. 2 PHASED CONSTRUCTION
The Construction Manager shall make recommendations to the Owner
and Architect regarding the phased issuance of Drawings and
Specifications to facilitate phased construction of the Work, if
such phased construction is appropriate for the Project, taking
into consideration such factors as economies, time of
performance, availability of labor and materials, and provisions
for temporary facilities. It is the current expectation of the
parties that the Project will be construdted in phases . In the
event the Project does proceed in phases it is expected that one
or more phases of the Project may have proceeded into the
construction phase while one or more other phases of the Project
may still be in the pre-construction phase. It is the intention
of the parties that the provisions of thiS agreement shall to the
extent necessary be construed to accommodate and permit such
phasing of the Project .
2.1.3 SUBCONTRACTORS AND SUPPLIERS PROJECT PROJECT PROCUREMENT
The Construction Manager shall seek to develop subcontractor
interest in the Project and shall furnish to the Owner and
Architect for their information a list of possible
subcontractors, including suppliers who are to furnish materials
or equipment fabricated to a special design, from whom proposals
shall be requested for each principal portion of the Work. The
Architect shall promptly reply in writing to the Construction
Manager if the Architect or Owner know of any objection to such
subcontractor or supplier. The receipt of such list shall not
require the Owner or Architect to investigate the qualifications
of proposed subcontractors or suppliers, Inor shall it waive the
right of the Owner or Architect later to object to or reject any
proposed subcontractor or supplier.
The Construction Manager shall conduct up to one (1) meeting with
local firms interested in working on the Project to explain the
bidding and award process and to solicit local firms to bid the
project . The location and/or meeting rooms for the meetings will
be furnished by the Owner.
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In all contracting, hiring or employment made possible or
resulting from this Agreement , there shall be no discrimination
against any firm, employee or applicant fcr employment because of
sex, age, race, color, creed, national origin, marital status, of
the presence of any oeosocy, mental or ph sical handicap, unless
based upon a bona fide occupational qualification, and this
requirement shall apply, but not be limited to, employment
advertising; layoff or termination; rates of pay or other forms
of compensation; and selection for training, including
apprenticeship .
No person shall be denied or subjected to discrimination in
receipt of the benefit of any services or activities made
possible by or resulting from this Agreement on the grounds of
sex, race, color, creed, national origin, age (except minimum age
and retirement provisions) , marital status or the presence of
any
sensory, mental or physical handicap. Any violation of this
provision shall be considered a violation of a material provision
of this Agreement .
The Construction Manager shall include language banning
discrimination per the above in all subcontracts and purchase
orders for the project .
The construction work on the Project shall be performed under
subcontracts or by other appropriate agreements with the
Construction Manager. Source selection for all subcontractors
and suppliers shall be conducted in oce with the City of
Elgin procurement ordinance. The C000tr oo Manager may use a
prequalification process to pre-qualify bidders to determine the
responsibility of prospective bidders. The Construction Manager
shall obtain bids from Subcontractors and from suppliers of
materials or equipment fabricated to a special design for the
Work from the list of qualified bidders previously reviewed and,
after analyzing such bids, shall deliver such bids to the Owner
and Architect . The Owner shall then determine, with the advice
of the Construction Manager, which bids shall be accepted. The
Owner may designate specific persons or entities from whom the
Construction Manager shall solicit pre-qu lification information.
The Construction Manager shall not be required to contract with
anyone to whom the Construction Manager has reasonable objection
and the Owner has determined not to be a responsible or
responsive bidder or offeror. The Construction Manager shall
prepare Bid Packages consisting of drawihgo' specifications, and
other information prepared by theAzzbitect. Invitations to Bid,
Instructions to Bidders, Proposal Form, Scopes of Work, General
Requirements, General Conditions and Supplementary General
Conditions, sample Trade Contracts, Performance d Payment Bond
Forms, Insurance Specifications, and ocher conditions of the
contract to secure trade contractor or supplier bids for all
elements of the project .
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Bid Packages shall be prepared and as the Construction
Manager determines are in the best iotereata of the project . The
form and contents of all bid packages shall be subject to the
advance approval of the Owner. Bid packages shall be publicly
advertised and bid openings shall be coodJcted as approved by the
Owner and in conformance with the CitY of Elgin procurement
ordinance.
All successful bidders shall be compensated in accordance with
the Illinois Prevailing Wage Act , and shall be required to comply
with all federal, state, and local laws, egulations, orders, and
ordinances applicable to public contrac ors in Illinois . All
successful bidders shall be required to certify that they are not
barred from contracting with any unit of state or local
government as a result of a violation of Section 33E-3 or 33E-4
of the Interference with Public Contracting Act, 720 ILCS 5/33-E-
l, et . Seq. (1996) .
2 .1.4 LONG-LEAD TIME ITEMS
The Construction Manager shall d to the Owner and
Architect a schedule for procurement o time items
which shall constitute part of the Work as required to meet the
Project schedule. If approved by the 'owner, the Construction
Manager shall procure long-lead items in advance of subcontracts
for the Work; provided however, any such procurements shall be
conducted in conformance with the requirements of the City of
Elgin procurement ordinance. The CooStzuctimo Manager shall
expedite the delivery of long-lead time items .
2 '1'5 EXTENT OF RESPONSIBILITY
The Construction Manager does not warran or guarantee estimates
and schedules except as may be included apart of the Guaranteed
maximum Price. The recommendations and advice of the
Construction Manager concerning design alternatives shall be
subject to the review and approval of the Owner and the Owner's
professional consultants. The Construction Manager shall not be
liable for failure to ascertain that the Drawings and
Specifications are in accordance with applicable laws, statutes,
ordinances, building codes, rules and regulations . However, if
the Construction Manager recognizes that portions of the Drawings
and Specifications are at variance therewith, the Construction
Manager shall promptly notify the Architect and Owner in writing.
2 .1. 6 PRECONSTRUCTION PHASE KEY PERSONNEL
The following Key Personnel of the Construction Manager shall
participate and shall be involved in the Preconstruction Phase of
the Project for the duration of PreconstrLctioo Services :
NAME TIT1,E
1 . M. I .C . Staff
See Exhibit A
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The Construction Manager shall not reassign or replace
Preconstruction Key Personnel as identified herein without the
prior approval of the Owner, which approval shall not be
unreasonably withheld.
Estimated and anticipated manhours included in the Construction
Manager' s lump sum fee for PreconstruCtion Services for the
Construction Manager' s personnel are included in Exhibit 2 to
this agreement .
2.1.7 PROJECT STATUS
The Construction Manager shall conduct to status sessions during
the project . One status session shall be conducted during the
Preconstruction Phase and shall involve the Owner, Architect and
Construction Manager. One status session shall be conducted
during the Construction Phase and shall involve the Owner,
Architect, Construction Manager and selected Trade Contractors .
In addition, periodic Owner/Architect/Construction Manager status
meetings to review the progress of the project shall be held
periodically through the project but not less than every three
(3) months .
2 .2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME
2.2 .1 Upon receipt of all subcontract and supplier bids for the
project or a phase thereof, the ConStruction Manager shall
propose a Guaranteed Maximum Price, which shall be the sum of the
Estimated Cost of the Work (which shall include the Construction
Manager' s Contingency) , the Construction Manager' s Fee, and
Owner' s Allowance, if any.
2.2.2 The Estimated Cost of the Work shall include the
Construction Manager' s Contingency, a sum established by the
Construction Manager for the Construction Manager' s exclusive use
to cover costs which are properly reimbursable as a Cost of the
Work but not the basis for a Change Order. The Construction
Manager' s Contingency shall be equal to 3% of the total of all
subcontracts and purchase orders for the project . Savings from
the awarded subcontractor or supplier contracts shall accrue and
be available for use in the same manner as the Construction
Manager' s contingency. The Construction Manager shall report the
expenditure of Construction Manager' s Contingency to the Owner as
any expenditures occur and monthly.
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2 .2 .3 The Construction Manager is authorized to enter into
amendments to the awarded subcontractor and supplier contracts
when the subject of any such amendment does not constitute a
Change in the Work, is required to complete work within the scope
of the Project, and is properly reimbu sable as a Cost of the
Work. Any such amendments to the sub ontractor and supplier
contracts authorized by the Construction anager shall be applied
and charged against the Construction Man :ger' s Contingency. Any
such amendments which would cause the Guaranteed Maximum Price to
be exceeded shall be paid by the Construction Manager without
. reimbursement by the Owner. In the =vent any such proposed
amendment is not germane to the original subcontract as signed
and is in an amount equal to or greater han 10% of the original
subcontract or more, the Construction Manager shall, to the
extent circumstances reasonably permit obtain bids for the
additional work which is the subject of the proposed amendment
pursuant to the procedures as set forth in Section 2 . 1 . 6 hereof.
Amendments to the awarded subcontractor and supplier contracts
which constitute a Change in the Work and are not within the
scope of the Project shall be accomplished by Change Orders
pursuant to Article 7 of the General conditions . All Change
Orders shall be authorized by theowner pursuant to the
procedures in Article 3 . 2 . , and according to law.
2 .2 .4 BASIS OF GUARANTEED MAXIMUM PRICE
The Construction Manager shall include with the Guaranteed
Maximum Price proposal a written statem-nt of its basis, which
shall include:
.1 A list of the Drawings and Speci ications, including all
addenda thereto and the Conditio s of the Contract, which
were used in preparation of the Guaranteed Maximum Price
proposal.
.2 A list of allowances and a statem-nt of their basis.
.3 A list of the clarifications and assumptions made by the
Construction Manager in the p r - p a r a t i o n of the
Guaranteed Maximum Price proposal to supplement the
information contained in the Drawings and
Specifications .
.4 The proposed Guaranteed Maxim m Price, including a
statement of the estimated cost organized by trade
categories based upon the propo_ed low responsive bids
for each category, allowances, contingency, and other
items and the fee that comprise the Guaranteed Maximum
Price.
.5 The Date of Substantial Completion upon which the
proposed Guaranteed Maximum Price i based , a n d a
schedule of the Construction Docume is issuance data upon
which the date of Substantial Compl=tion is based.
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2 .2 .5 The Construction Manager shall meet with the Owner and
Architect to review the Guaranteed Maxim m Price Proposal and the
written statement of its basis. In the event that the Owner or
Architect discover any inconsistencies or inaccuracies in the
information presented, they shall promptly notify the
Construction Manager, who shall make ap.ropriate adjustments to
the Guaranteed Maximum Price proposal, its basis or both.
2. 2. 6 Unless The Owner accepts the Guaranteed Maximum Price
Proposal in writing on or before the date specified in the
proposal for such acceptance and so notifies the Construction
Manager, the Guaranteed Maximum Price proposal shall not be
effective without written acceptance by the Construction Manager.
2 .2.7 Prior to the Owner' s accept-nce of the Construction
Manager' s Guaranteed Maximum Price pro•osal and issuance of a
Notice to Proceed, the Construction Man.ger shall not incur any
cost to be reimbursed as part of the Cost of the Work for
Subcontractors, except as the Owner may .pecifically authorize in
writing.
2.2 .8 Upon acceptance by the Owner of the Guaranteed Maximum
Price proposal, the Guaranteed Maximum PI ice and its basis shall
be set forth in Amendments to this agreQment . To the extent that
the Project proceeds in phases pursuant to Subparagraph 2 . 1. 4,
such amendments shall be added to the then current Guaranteed
Maximum Price, it being the intent of t e parties that there be
one Guaranteed Maximum Price for t e entire Project. The
Guaranteed Maximum Price shall be su•ject to additions and
deductions by a Change in the Work as •rovided in the Contract
Documents and the date of Substant .al Completion shall be
subject to adjustment as provided in Se tion 8 . 3 of the General
Conditions.
2.2. 9 The Owner shall authorize an. cause the Architect to
revise the Drawings and Specifications to the extent necessary to
reflect the agreed-upon assumptions and clarifications contained
in Amendments to this agreement . Sucrevised Drawings and
Specifications shall be furnished to thz. Construction Manager in
accordance with schedules agreed to by he Owner, Architect and
Construction Manager. The Constructio Manager shall promptly
notify the Architect and Owner if such revised Drawings and
Specifications are inconsistent with the agreed upon assumptions
and clarifications.
2.2 .10 The Guaranteed Maximum Price •.hall include in the Cost
of the Work only those taxes which are enacted at the time the
Guaranteed Maximum Price is established.
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2 .2.11 If desired by the Owner, the uaranteed Maximum Price
shall include an amount equal to 2% of he Cost of the Work for
an Owner' s Allowance which shall be for the exclusive use of the
Owner. In the event that the Owner' s A lowance is not expended
during the project, all remaining Own is Allowance shall be
returned to the Owner without any share of savings by the
Construction Manager per Article 5 . 2 . 2 .
2 .3 CONSTRUCTION PHASE
2 .3.1 GENERAL
The Construction Phase of the Project oI a phase thereof shall
commence upon the following :
. 1 The Owner' s acceptance of th= Construction
Manager'Guaranteed Maximum Price pr.posal for the
Project or a phase thereof, and
.2 The Owner' s issuance of a notice to proceed and
Owner' s first authorization to the construction
Manager to award a subcontract for 'he construction
of the Project or phase thereof .
2 .3.2 ADMINISTRATION
2 .3 .2.2 The Construction Manager sha 1 schedule and conduct
weekly meetings at which the Owner, architect, Construction
Manager and appropriate Subcontractors c.n discuss the status of
the Work. The Construction Manager shall prepare and promptly
distribute meeting minutes.
2 .3 .2.3 The Guaranteed Maximum Price .roposal shall include a
schedule in accordance with Paragraph 3 .10 of the General
Conditions, including the Owner's occupancy requirements .
2.3 .2.4 The Construction Manager shall provide monthly written
reports to the Owner and Architect on th; progress of the entire
Work. The Construction Manager , shall maintain a daily log
containing a record of weather, Subcontractors working on the
site, number of workers, Work accomplish_d, problems encountered
and other similar relevant data as the Owner may reasonably
require. The log shall be available to t e Owner and Architect .
2.3 .2.5 The Construction Manager shall develop a system of
cost control for the Work, including regu ar monitoring of actual
costs for activities in progress and es imates for uncompleted
tasks and proposed changes . The Cons ruction Manager shall
identify variances between actual and estimated costs and report
the variances to the Owner and Architect at regular intervals.
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2 .4 UNSAFE MATERIALS
In addition to the provisions of Paragr.ph 10 . 1 of the General
Conditions, if precautions are inadequate to prevent foreseeable
bodily injury or death to persons resulting from a material or
substance encountered but not created on the site by the
Construction Manager, the Construction Manager shall, upon
recognizing the condition, immediately stop Work in the affected
area and report the condition to the owner and Architect in
writing. The Owner, Construction Manag-r and Architect shall
then proceed in the same manner described in Subparagraph 10 . 1 .2
of the General Conditions. The Owner shall obtain the services
of a licensed laboratory, or other reason.bly appropriate entity,
to verify the presence or absence of th= material or substance
reported by the Construction Manager a d, in the event such
material or substance is found to be pre-.ent, to verify that it
has been rendered harmless . Unless oth=rwise required by the
Contract Documents, the Owner shall fur ish in writing to the
Construction Manager and Architect the n.:mes and qualifications
of persons or entities who are to perform tests verifying the
presence or absence of such material or •.ubstance or who are to
perform the task of removal or safe containment of such material
or substance. The Construction Manage and Architect shall
promptly reply to the Owner in writing stating whether or not
either has reasonable objection to the persons or entities
proposed by the Owner. If either the lonstruction Manager or
Architect has an objection to a person or entity proposed by the
Owner, the Owner shall propose another to whom the Construction
Manager and Architect have no reasonable oojection.
2.5 PROGRESS REPORTS
2 .5.1 An outline project milestone scheoule is provided herein
under:
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2.5.2 A preliminary project schedule fo the Project shall be
prepared by_Ma}c_(1Lr2(1(1L- in accord-nce with Article 2 . 1. 3
above . Progress shall be recorded on the project schedule
and submitted monthly as a componen of the Status Report
described in . 3 below_ A detailed construction schedule
shall be submitted with each phase of the Guaranteed Maximum
Price .
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2 .5.3 The Construction Manager shall submit to the Owner monthly
a Status Report keyed to the Project Schedule . A brief
narrative shall be provided identifying progress, findings
and outstanding issues . Construction progress shall be
recorded and submitted monthly as a component of the status
report in 2 .3 .2 . 4 .
2. 6 WORK PRODUCTS
All work products prepared by the Const uction Manager pursuant
hereto including, but not limited to, reports, photographs and
recommendations shall be the property of the Owner and shall be
delivered to the Owner upon request of the Manager; provided,
however, that the Construction Manager may retain copies of such
work products for its records . Such work products are not
intended or represented to be suitable for reuse by the Owner on
any extension of the Project or on any other project, and such
reuse shall be at the sole risk of the Owner without liability or
legal exposure by the Construction ManageF.
2 .7 KEY PERSONNEL
The Construction Manager shall assign and maintain during the
duration of the Construction Phase of the project the following
key personnel :
NAME POSITION
1 . M. I .C. Staff
2 . See Exhibit A
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The Construction Manager shall not reassign or replace Key
Personnel as identified herein without the prior approval of the
Owner, which approval shall not be unreasonably withheld.
Estimated and anticipated manhours inclUded in the Construction
Manager' s lump sum fee for Construction Phase Services for the
Construction Manager' s personnel are included in Exhibit 2 to
this agreement . In the event requested by the Owner and for good
cause, the Construction Manager shall reassign or replace any key
personnel as identified herein.
2 .8 COMMUNICATIONS
The Construction Manager shall respond tO requests from the Owner
within a reasonable time, but not les S than two weeks after
receipt by the Construction Manager.
ARTICLE 3
OWNER'S RESPONSIBILITIES
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3 .1 INFORMATION AND SERVICES
3 '1. 1 The Owner shall provide full information in a timely
manner regarding the requirements of tgro 'ect, including a
program which sets forth the Owner' s objectives, constraints and
criteria, including space requirements and relationships,
flexibility and expandability reguiremeotS' special equipment and
systems, and site requirements .
3 .1.2 The Owner shall establish and update an overall budget for
the Project , based on consultation with the Construction Manager
and Architect, which shall include contingencies for changes in
the Work and other costs which are the responsibility of the
Owner.
3 . 1.3 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND
REPORTS
In the Preconstruction Phase, the Owner shall furnish the
following at the Owner's expense, and the Construction Manager
shall be entitled to rely upon the accuracy of any such
information, reports, surveys, drawings and tests described in
Clauses 3 . 1 . 4 .I through I . 1 '4 .4, except to the extent that the
Construction Manager knows of any inaccuracy.
3 '1' 3 .1 Reports, surveys, drawings a d tests concerning the
conditions of the site which are required by law.
3 .1.3 .2 Surveys describing physical characteristics, legal
limitations and utility locations for the site of the Project,
and a written legal description of the site . The surveys and
legal information shall include, as applicable' grades and lines
of etreeto, alleys, pavements and adjoining property and
structures; adjacent drainage; rights-of-way, restrictions,
eaoemeoto, encroachments, zoning, deed estrictions, boundaries
and contours of the site; locations, imenoi000 and necessary
data pertaining to existing buildings, other improvements and
trees; and information concerning available utility services and
lines, both public and private, above and below grade, including
inverts and depths . All information On the survey shall be
referenced to a project benchmark.
3 '1'3 '3 The services of geotechnical engineers . Such services
may include but are not limited to test borings, test pits,
determinations of soil bearing values' percolation tests,
ground and
of hazardous materials, corrosion
resistivity tests, including necessary operations for
anticipating subsoil conditions, with reports and appropriate
professional- recommendations .
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3 . 1.3 .4 Structural, mechanical, ch mical , air and water
pollution tests, tests for hazardou materials, and other
laboratory and environmental tests, insp ctions and reports which
are required by law.
3 .1.3 .5 The services of other consultants when such services
are reasonably required by the scope lof the Project and are
requested by the Construction Manager.
3 .1.4 The Owner shall only communicate with Subcontractors
through the Construction Manager.
3.2 OWNER'S DESIGNATED REPRESENTATIVE
The Owner' s Designated Representative shall be the Owner' s
General Services Manager who shall hav- the authority to make
decisions on behalf of the Owner which do not affect or change
the Cost of the Work or the scope of the Project . For the
purposes of this contract, the Owner' s City Manager shall have
the authority to authorize change orders relating to the
construction of the Project up to -n amount of less than
$10, 000 .00 per change order. Any such change orders authorized
by the City Manager shall be appli-d against the Owner's
Allowance established in Section 2 .2 .11 hereof . A change order
shall not be artificially or arbitrarily divided so as to be
limited to an amount which may be author zed by the City Manager.
Any change order of $10, 000 . 00 or more ust be authorized by the
City Council of the City of Elgin.
3 .3 ARCHITECT
The Owner shall retain an Architect to provide the Basic
Services, including normal structural, Mechanical and electrical
engineering services, other than co-t estimating services,
described in the Agreement between the Owner and the Hitchcock
Design Group, dated September 27, 2000, including the additional
services described therein if required by the Project . Such
services shall be provided in accorda ce with time schedules
agreed to by the Owner, Architect and Co struction Manager.
3 .4 LEGAL REQUIREMENTS
The Owner shall determine and adv se the Architect and
Construction Manager of any special le•al requirements relating
specifically to the Project which dif er from those generally
applicable to construction in the juri•.diction of the Project .
The Owner shall furnish such legal services as are necessary to
provide the information and services equired under Paragraph
3 . 1 .
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3 .5 OWNER' S INSURANCE
The Owner shall provide liability i _surance and property
insurance (Builder' s Risk Insurance) as efined in Article 11 .2
and 11 . 3 of the AIA A201 General Conditio s, 1987 version.
ARTICLE 4
COMPENSATION AND PAYMENTS FOR PRECONSTR CTION PHASE SERVICES
The Owner shall compensate and make paym-nts to the Construction
Manager for Preconstruction Phase service as follows :
4.1 COMPENSATION
4 .1.1 For the services described in Par:graphs 2 .1 and 2 .2 the
Construction Manager' s compensation shall be a Lump Sum of
$33, 927 . 00 inclusive of all fees and -xpenses regardless of
actual time expended or actual costs incugred by the Construction
Manager for such services .
4.1.2 Compensation for Preconstruction Phase services shall be
equitably adjusted if such services exte d beyond 5-31 -01
or if the originally contemplated -cope of services is
significantly modified. Prior to performing any such additional
preconstruction phase services the Construction Manager shall
receive the advance approval of the Owner for such additional
services by way of amendment to this agreement . In the event
such additional preconstruction phase services are approved by
the Owner, the Construction Manager sh:ll receive additional
compensation on an hourly basis equal t• one and eight-tenths
(1. 80) times the Basic Labor Rate inclus ve of all overhead and
profit . The Basic Labor Rate Schedule is attached as Exhibit 1 .
Additional reimbursable expenses shall se paid at the actual
costs of additional expenses times an o erhead factor of 115%
(actual cost x 1 . 15) .
4.2 PAYMENTS
4.2.1 The Owner shall make monthly paymenus to the Construction
Manager within 30 days after receipt of the Construction
Manager' s invoice. Said periodic payme is to the Construction
Manager shall not exceed the amounts sho n in the following fee
schedule, plus any changes, and full pa ent for each task shall
not be made until the task is completed and accepted by the
Owner. Amounts unpaid after the date o, which payment is due
shall bear interest at the rate of 7 34% pet annum.
BILLING DATE ACTIVITY FEES
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ARTICLE 5
COMPENSATION FOR CONSTRUCTION Pli&SE SERVICES
The Owner shall compensate the Constructioh Manager for
Construction Phase services as follows :
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5.1 COMPENSATION
5 '1'1 For the Constructionconstruction
administration and management services during the construction
phase including the services as describec1 in Paragraph 2 . 3 , the
Owner shall pay the Construction Manager in current funds for
the Cost of the Work as defined in Article 6 and the
Construction Manager' s Fee . The Construdtion Manager' s Fee for
Construction and Post Construction Phase Services shall be lump
sum of $277' 069 . 00 inclusive of all fees 4od expenses regardless
of actual time expended or actual oOoto incurred by the
Construction Manager for such services . The Construction
Manager' s Fee for construction phase srvices is subject to
possible increases in accordance with Article 5 . 3 . The
Construction Manager' s Fee for construction and Post
Construction phase services may also be equitably adjusted if
such services extend beyond a twelve ( 2) month construction
phase and such additional duration of th6 construction phase is
as a result of matters identified in Section 8 .3 . 1 of the
General Conditions as amended by the Supplementary General
Conditions dated 0-14-00 . Prior to performing any such
additional construction and Post Construction phase services the
Construction Manager shall receive the aidnaoca approval of the
Owner for such additional services by way of amendment to this
agreement. If such additional servies for an additional
duration of the construction and Post Construction phases are so
approved by the Owner the Construction Manager shall receive .
additional compensation on an hourly aio equal to one and
eight-tenths (1 . 80) times the basic labo rate inclusive of all
overhead and profit . The basic labor rate is attached as
Exhibit 1 . Additional reimbursable exposes shall be paid at
the actual costs of additional expenses times an overhead factor
of one hundred fifteen percent (115%) (actual costs times l . lS) .
The Construction Manager' s lump sum fee is understood to include
but is not limited to the following costs to support the
Construction Manager on the Project :
. 1 Wages or salaries of the onstruction Manager' s
supervisory and administrative when stationed
at the site or home office pe sonnel performing the
duties of Construction SuperviSor (including Project
Executive) , Estimating, Scheduling, Purchasing,
Accounting, Cost Control and Safetif.
14
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.
. 2 Wages and salaries of the Construction Manager' s
supervisory and administrative ipersonnel engaged at
factories, workshops or on the rbad in expediting the
production or transportation of Materials or equipment
required for the Project .
.3 Costs paid or incurred by the Construction Manager for
taxes, insurance, cootzibuti ua' assessments, and
benefits required by law or collective bargaining
agreements, and for personnel ot covered by such
agreements the Construction Maoaer' o standard fringe
benefits, including sick leave, medical and health
benefits, holidays, vacations, allowed absences and
pensions, provided that such costs are based on wages and
salaries included in clauses 5 . l . 1 .i through 5 . 1 . 1 .2 .
.4 Costs to support the Construction Manager on the Project :
Field Office Rental First Aid
FieldOffice Move in/Set up Bottled Water
Field Office Maintenance/Repair Communication Equip .
Field Office Utilities Computer Cost
Field Office Janitor Services Field Staff Travel
Field Office Furniture Small Tools/Safety
Fax Machine Progress Photographs
Copier & Supplies Record Storage
Temporary Office Supplies Home Office Travel
Postage/Express Mail Home Office Telephone
Storage of Record Documents Telephone
General & Excess Liability Insulrance
Refer to Exhibit 2 for estimated and anticipated amounts of the
above.
5 'I.3 The Construction be increased on
account of Changes in the Work by an amount equal to eight
percent (8%) of the Cost of the Change determined in accordance
with Subparagraph 7 . 3 . 3 .3 of the General Conditions . The cost
for extended or additional staff shall be equal to one and eight
tenths (1 .80) times the applicable Basic Labor Rate shown in
Exhibit 1 .
5.2 GUARANTEED MAXIMUM PRICE
5 .2 .1 The Sum of the Cost of the Work as defined in Article 6
and the Construction Manager' s Fee guaranteed by the
Construction Manager not to exceed amount provided in
Amendments to this agreement, subje t to additions and
deductions by changes in the Work as provided in the Contract
Documents . Such maximum sum as adjusted by approved Changes in
. �b� Work is referred to in the Contract Documents as the
Guaranteed Maximum Price .
15
Costs which would cause the Guaranteei Maximum Price to be
exceeded shall be paid by the Constr ction Manager without
reimbursement by the Owner.
5 .2 .2 If, upon completion of the Proj -ct, the Actual Cost of
the Work plus the Construction Manager'. Fee is less than the
Guaranteed Maximum Price as set forth herein and as adjusted by
Change Orders and less the amount of t e Owner' s contingency,
the Owner shall pay the Construction Manger an amount equal to
twenty-five percent (25%) of such .avings as additional
compensation.
5.3 CHANGES IN THE WORK
5.3 .1 Adjustments to the Guaranteed Maximum Price on account of
changes in the Work subsequent to the ex;cution of Amendments to
this agreement may be determined by any of the methods listed in
Subparagraph 7 .3 . 3 of the General Conditions .
5.3 .2 In calculating adjustments to suBcontracts (except those
awarded with the Owner's prior consent o the basis of cost plus
a fee) , the terms "cost" and "fee" as us-d in Clause 7 . 3 .3 .3 of
the General Conditions and the terms "costs" and "a reasonable
allowance for overhead and profit" as us:d in Subparagraph 7 .3 . 6
of the General Conditions shall have t e meanings assigned to
them in that document and shall not be edified by this Article
5 . Adjustments to subcontracts awarded with the Owner' s prior
consent on the basis of cost plus a fee shall be calculated in
accordance with the terms of those Subcon racts.
ARTICLE 6
COST OF THE WORK
6.1 COSTS TO BE REIMBURSED
6.1.1 The term "Cost of the Work" shall mean costs necessarily
incurred by the Construction Manager in the proper performance
of the Work. Such costs shall be at rat=s not higher than those
customarily paid at the place of the Project except with prior
consent of the Owner. The Cost of the ork shall include only
the items set forth in this Article 6 .
6 .1.2 LABOR COSTS
.1 wages including costs for taxes, insurance,
contributions, assessments and Benefits required by law
or collective bargaining agre-ments of construction
workers directly employed by t e Construction Manager
to perform the construction of 'he Work at the site or,
with the Owner's agreement, at off-site workshops.
16
6 .1 .3 SUBCONTRACT COSTS
Payments made by the Construction Manag-r to Subcontractors in
accordance with the requirements of the subcontracts, including
Payment and Performance Bonds .
6 . 1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE
COMPLETED CONSTRUCTION
. 1 Costs, including transportat ' on, of materials and
equipment incorporated or to .e incorporated in the
completed construction.
. 2 Costs of materials described ' n the preceding Clause
6 . 1 .4 .1 in excess of those actually installed but
required to provide reasonable allowance for waste and
for spoilage . Unused excess aterials, if any, shall
be handed over to the Owner al the completion of the
Work or, at the Owner' s optio , shall be sold by the
Construction Manager; amounts realized, if any, from
such sales shall be crediteo to the Owner as a
deduction from the Cost of the ork.
6. 1. 5 COSTS OF OTHER MATERIALS AND 1QUIPMENT, TEMPORARY
FACILITIES AND RELATED ITEMS
. 1 Costs, including transportation, installation,
maintenance, dismantling and removal of materials,
supplies, temporary faciliti-s, Project vehicles,
machinery', equipment, and han• tools not customarily
owned by the construction work-rs, which are provided
by the Construction Manager :t the site and fully
consumed in the performance of the Work; and cost less
salvage value on such items if not fully consumed,
whether sold to others or reta:ned by the Construction
Manager. Cost for items previously used by the
Construction Manager shall mean fair market value.
.2 Rental charges for temporary facilities, machinery,
equipment, and hand tools not .ustomarily owned by the
construction workers, which are provided by the
Construction Manager at the si e, whether rented from
the Construction Manager or others, and costs of
transportation, installation, minor repairs and
replacements, dismantling and emoval thereof . Rates
and quantities of equipment re ted shall be subject to
the Owner' s prior approval .
. 3 Costs of removal of debris from the site .
17
6 .1 . 6 MISCELLANEOUS COSTS
. 1 That portion directly attribu able to this Contract
of premiums for the Constructio, Manager' s Payment or
Performance bonds, if required.
. 2 Sales, use or similar taxes iiposed by a governmental
authority which are related to ' the Work and for which
the Construction Manager is lia.le.
.3 Royalties and license fees .aid for the use of a
particular design, process or product required by the
Contract Documents; the cost of defending suits or
claims for infringement of pate t or other intellectual
property rights arising from -uch requirement by the
Contract Documents; payments -de in accordance with
legal judgments against the Construction Manager
resulting from such suits or claims and payments of
settlements made with the Own:r' s consent; provided,
however, that such costs of legal defenses, judgments
and settlements shall not be included in the
calculation of the Constructio Manager' s Fee or the
Guaranteed Maximum Price an.; provided that such
royalties, fees and costs are of excluded by the last
sentence of Subparagraph 3 . 17 . 1 of the General
Conditions or other provisi.ns of the Contract
Documents.
.4 Deposits lost for causes other than the Construction
Manager' s negligence or failur: to fulfill a specific
responsibility to the Owner set forth in this
Agreement.
.5 Legal, mediation and arbitr-tion costs, other than
those arising from disputes s.lely between the Owner
and Construction Manager, reas.nably incurred by the
Construction Manager in the performance of the Work and
with the Owner' s written permi-sion, which permission
shall not be unreasonably be withheld.
. 6 Reproduction costs and a_sociated postage and
shipping costs .
.7 Advertising expenses require. to comply with public
bidding laws or required for ocal business outreach
programs.
. 8 Coordination of testing laboratories for tests
required by the Contract Documents, except those
related to nonconforming Work other than for which
payment is permitted by Clause 6 . 1 . 8 . 2 .
18
. 9 Fees and assessments for tie building permit and
other permits, licenses, and i spections for which the
Construction Manager is req fired by the Contract
Documents to pay.
6 .1.7 OTHER COSTS
. 1 Other costs incurred in the performance of the Work if
and to the extent approved i' advance in writing by
the Owner.
6 .1. 8 EMERGENCIES AND REPAIRS TO DAMAGE■ OR NONCONFORMING WORK
The Cost of the Work shall also incude costs described in
Subparagraph 6 . 1 . 1 which are incurr=d by the Construction
Manager:
. 1 In taking action to prevent t reatened damage, injury
or loss in case of an emergency affecting the
safety of persons and prop-rty, as provided in
Paragraph 10 .3 of the General Conditions .
. 2 In repairing or correcting d=maged or nonconforming
Work executed by the Constr ction Manager or the
Construction Manager' s Subcon ractors or suppliers,
provided that such damaged or nonconforming Work was
not caused by the negligence or failure to fulfill a
specific responsibility to the Owner set forth in this
Agreement of the Construc ion Manager or the
Construction Manager' s fo emen, engineers or
superintendents, or other sup=rvisory, administrative
or managerial personnel of the construction Manager, or
the failure of the Constructio Manager' s personnel to
supervise adequately the Work of the Subcontractors or
suppliers, and only to the e tent that the cost of
repair or correction is not recovered by the
Construction Manager from insu.ance, Subcontractors or
suppliers .
6.1. 9 The costs described in Subparagr_phs 6 . 1 . 1 through 6 .1 .8
shall be included in the Cost of the Work notwithstanding any
provision of the General Conditions or other Conditions of the
Contract which may require the Construction Manager to pay such
costs, unless such costs are specifi ally excluded by the
provisions of Paragraph 6 . 2 .
6 .2 COSTS NOT TO BE REIMBURSED
19
6 .2 .1 The Cost of the Work shall not incl de and the Owner shall
not be required to pay for any of tie following, which list
shall not constitute a limitation
.1 Salaries and other compensatio of the Construction
Manager' s personnel stationed at the Construction
Manager' s principal office or .ffices other than the
site office, except as specifically provided in Clauses
5 . 1 . 1 . 1, 5 . 1 . 1 .2, and 6 . 1 .2 . 1 .
.2 Expenses of the Construction Ma ager' s principal office
and offices other than the -ite office except as
specifically provided in Paragraphs 5 . 1 and 6 . 1 .
.3 Overhead and general expenses, e. cept as may be expressly
included in Paragraphs 5 . 1 and - . 1 .
.4 The Construction Manager' s capi.al expenses, including
interest on the Construction Man-ger' s capital employed
for the Work.
.5 Rental costs of machinery and equipment, except as
specifically provided in Subpara';raph6 .1 .5 . 2 .
6. Except as provided in Clause 6 . . 8 .2, costs due to the
negligence of the Constructio Manager or to the
failure of the Construction anager to fulfill a
specific responsibility to the owner set forth in this
Agreement .
. 7 Except as provided in Clause 6 . 1 .7 .1, any cost not
specifically and expressly descr bed in Paragraph 6. 1 .
.8 Costs which would cause the Guaranteed Maximum Price to
be exceeded.
6.3 ACCOUNTING RECORDS
6.3 .1 The Construction Manager shall k-ep full and detailed
accounts and exercise such controls as may be necessary for
proper financial management under this C.'ntract; the accounting
and control systems shall be satisfacto y to the Owner. The
Owner and the Owner's accountants shall be afforded access to
the Construction Manager' s records, nooks, correspondence,
instructions, drawings, receipts, subcont acts, purchase orders,
vouchers, memoranda and other data relati g to this Project, and
the Construction Manager shall preserve these for a period of
not less than three years after final payment, or for such
longer period as may be required by law.
?0
ARTICLE 7
CONSTRUCTION PHASE
7 . 1 PROGRESS PAYMENTS
7 . 1 . 1 The Construction Manager shall submit invoices in a
format approved by the Owner. Progress reports shall be
included with all payment requests . Based upon Applications for
Payment submitted to the Owner by the COnstruction Manager and
Certificates for Payment issued by the Architect, the Owner
shall make progress payments on account of the Contract Sum to
the Construction Manager as provided below and elsewhere in the
Contract Documents. The Construction Manager shall maintain
records showing actual time devoted and cost incurred. The
Construction Manager shall permit the authorized representative
of the Owner to inspect and audit all data and records of the
Construction Manager for work done under this Agreement . The
Construction Manager shall make these records available at
reasonable times during the Agreement period and for a year
after termination of this Agreement .
7.1.2 The period covered by each Application for Payment shall
be one calendar month ending on the last day of the month:
7 .1.3 Provided an Application for payment is received by the
Owner not later than the first day of
a month, the Owner shall make payment to the Construction
Manager not later than thirty (30) days thereafter. ..Peryrrtsat—by-
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. .d acco u,tion necess. • •
7.1.4 With each Application for Payment, the Construction
Manager shall submit payrolls, petty cash accounts, receipted
invoices or invoices with check Vouchers attached, and any other
evidence required by the Owner or Architect to demonstrate that
cash disbursements already made by the Construction Manager on
account of the Cost of the Work equal or exceed (1) progress
payments already received by the Construction Manager; less (2)
that portion of those payments attributable to the Construction
Manager' s Fee; plus (3) payrolls for the period covered by the
present Application for Payment .
21
7 .1 .5 Each Application for Payment shall be based upon the most
recent schedule of values submitted by the Construction Manager
in accordance with the Contract Documents . The schedule of
values shall allocate the entire Guaranteed Maximum Price among
the various portions of the Work, except that the Construction
Manager' s Fee shall be shown as a single separate item. The
schedule of values shall be prepared in such form and supported
by such data to substantiate its accuracy as the Architect may
require. This schedule, unless objected to by the Architect,
shall be used as a basis for reviewing the Construction
Manager's Applications for Payment .
7 .1.6 Applications for Payment shall show the percentage
completion of each portion of the Work as of the end of the
period covered by the Application for Payment . The percentage
completion shall be the lesser of (1) the percentage of that
portion of the Work which has actually been completed or (2) the
percentage obtained by dividing (a) the expense which has
actually been incurred by the Construction Manager on account of
that portion of the Work for which the Construction Manager has
made or intends to make actual payment prior to the next
Application for Payment by (b) the share of the Guaranteed
Maximum Price allocated to that portion of the Work in the
schedule of values .
7.1.7 Subject to other provisions of the Contract Documents, the
amount of each progress payment shall be computed as follows :
.1 Take that portion of the Guaranteed Maximum Price
properly allocable to completed Work as determined by
multiplying the percentage completion of each portion of
the Work by the share of the Guaranteed Maximum Price
allocated to that portion of the Work in the schedule of
values . Pending final determination of cost to the Owner of
changes in the Work, amounts not in dispute may be included
as provided in Subparagraph 7 .3 . 7 of The General
Conditions, even though the . Guaranteed Maximum Price has
not yet been adjusted by Change Order.
.2 Add that portion of the Guaranteed Maximum Price
properly allocable to materials and ,equipment delivered and
suitably stored at the site for subsequent incorporation in
the Work or, if approved in advance by the Owner, suitably
stored off the site at a location agreed upon in writing.
22
. 3 Add the Construction Manager' s Fee, less retainage of
five percent (5%) . Upon fifty percent (50%) completion of
the project, no further retainage will be withheld provided
the Construction Manager is performing satisfactorily in
the Architect and Owner' s opinions . Upon the satisfactory
completion of a phase of the project as determined by the
Architect and Owner the retainage from the Construction
Manager' s fee for such phase of the project shall be paid
to the Construction Manager. The Construction Manager' s
fee shall be computed upon the Costs of Work described in
the two preceding clauses at the amount which bears the
same ratio to the Construction Manager's fixed actual fee
as the Cost of Work in the two preceding clauses bears to a
reasonable estimate of the probable Cost of Work upon its
completion.
.4 Subtract the aggregate of previous payments made by
the Owner.
. 5 Subtract the shortfall, if any, indicated by the
Construction Manager in the documentation required by
Subparagraph 7 . 1 . 4 to substantiate prior Applications for
Payment, or resulting from errors subsequently discovered
by the Owner' s accountants in such documentation.
. 6 Subtract amounts, if any, for which the Architect has
withheld or nullified a Certificate for Payment as provided
in Paragraph 9 .5 of the General Conditions .
7 .1.8 Payments to Subcontractors shall be subject to
retention of ten percent (10%) . Upon fifty percent (50%)
completion of a Subcontractor' s work, no further retainage will
be withheld provided the Subcontractor is performing
satisfactorily in the Owner's and Construction Manager' s
opinions.
7 .1. 9Except with the Owner' s prior approval, the Construction
Manager shall not make advance payments to suppliers for
materials or equipment which have not been delivered and stored
at the site.
7 .1.10 In taking action on the Construction Manager' s
Applications for Payment, the Architect, shall be entitled to
rely on the accuracy and completeness of the information
furnished by the Construction Manager and shall not be deemed to
represent that the Architect has made a detailed examination,
audit or arithmetic verification of the ,documentation submitted
in accordance with Subparagraph 7 . 1 . 4 or Other supporting data;
23
that the Architect has made exhaustive or continuous on-site
inspections or that the Architect has made examinations to
ascertain how or for what purposes the Construction Manager has
used amounts previously paid on account of the Contract . Such
examinations, audits and verifications, if required by the
Owner, will be performed by the Owner's accountants acting in
the sole interest of the Owner.
7 .2 FINAL PAYMENT
7 .2.1 Final payment shall be made 4y the Owner to the
Construction Manager when (1) the Contract has been fully
performed by the Construction Manager except for the
Construction Manager' s responsibility to correct nonconforming
Work, as provided in Subparagraph 12 . 2 . 2 of the General
Conditions, and to satisfy other requirements, if any, which
necessarily survive final payment; (2) a final Application for
Payment and a final accounting for the Cost of the Work have
been submitted by the Construction Manger and reviewed and
approved by the Owner' s accountants; and (3) a final Certificate
for Payment has then been issued by the Architect . Such final
payment shall be made by the Owner not more than 30 days after
the issuance of the Architect ' s final Certificate for payment :
7 . 2 .2 The amount of the final payment shall be calculated as
follows :
.1 Take the sum of the Cost of the Work substantiated by
the Construction Manager' s final accounting and the
Construction ' Manager' s Fee; but not more than the
Guaranteed Maximum Price.
.2 Subtract amounts, if any, for which the Architect
withholds, in whole or in part, a final Certificate for
Payment as provided in Subparagraph 9 . 5 . 1 of the General
Conditions or other provisions of the Contract Documents.
.3 Subtract the aggregate of previous payments made by
the Owner.
If the aggregate of previous payments made by the Owner exceeds
the amount due the Construction Manager, the Construction
Manager shall reimburse the difference to the Owner.
7. 2 .3 The Owner' s accountants shall review and report in writing
on the Construction Manager' s final accounting within thirty
(30) days after delivery of the final accounting to the
Architect by the Construction Manager.
24
Based upon such Cost of the Work as the Owner ' s accountants
report to be substantiated by the Construction Manager' s final
accounting, and provided the other conditions of Subparagraph
7 . 2 . 1 have been met, the Architect shall, within seven days
after receipt of the written report of the Owner' s accountants,
either issue to the Owner a final Certificate for Payment with a
copy to the Construction Manager, or notify the Construction
Manager and Owner in writing of the Architect ' s reasons for
withholding a certificate as provided in Subparagraph 9. 5 . 1 of
the General Conditions . The time periods stated in this
Paragraph 7 . 2 supersede those stated in Subparagraph 9 .4 1 of
the General Conditions .
7 .2.4 If the Owner' s accountants report the Cost of the Work as
substantiated by the Construction Manager ' s final accounting to
be less than claimed by the Construction Manager, the
Construction Manager shall be entitled to proceed as follows
without a further decision of the Architect . Unless agreed to
otherwise, a demand for non-binding mediation of the disputed
amount shall be made by the Construction Manager within sixty
(60) days after the Construction Manager' s receipt of a copy of
the Architect ' s final Certificate for Payment . Failure to make
such demand within this 60-day period shall result in the
substantiated amount reported by the Owner' s accountants
becoming binding on the Construction Manager. Pending a final
resolution of the disputed amount, the Owner shall pay the
Construction Manager the amount certified in the Architect ' s
final Certificate for Payment .
7 .2.5 If, subsequent to final payment and at the Owner' s
request, the Construction Manager incurs costs described in
Paragraph 6 . 1 and not excluded by Paragraph 6.2 (1) to correct
nonconforming Work, or (2) arising from the resolution of
disputes, the Owner shall reimburse the Construction Manager
such costs and the Construction Manager 's Fee, if any, related
thereto on the same basis as if such costs had been incurred
prior to final payment, but not , in excess of the Guaranteed
Maximum Price. If the Construction Manager has participated in
savings, the amount of such savings shall be recalculated and
appropriate credit given to the Owner in determining the net
amount to be paid by the Owner to the Construction Manager.
ARTICLE 8
INSURANCE AND BONDS
8 .1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER
25
8 '1'I During both the preconstruction phase and construction
phases of the Project, The Construction Manager shall purchase
from and maintain in a company or companies lawfully authorized
to do business in the State of Illinois with a Best ' s rating of
no less than A-VII such insurance as will protect the
Construction Manager from claims set forth below which may arise
out of or result from the Construction Manager' s operations
under this Agreement and for which the Construction Manager may
be legally liable, whether such operations be by the
Construction Manager or by a Subcontractor or by anyone directly
or indirectly employed by any of them, or by anyone for whose
acts any of them may be liable:
. 1 Claims under workers ' or workmen ' s compensation, disability
benefit and other similar employee benefit acts which are
applicable to the Work to be performed;
. 2 Claims for damages because of bodily injury, occupational
sickness or disease, or death of the Construction Manager' s
employees;
.3 Claims for damages because of bodily injury, sickness or
disease, or death of any person other than the Construction
Manager' s employees;
4 . Claims for damages insured by usual personal injury
liability coverage which are sustained (1) by a person as a
result of an offense directly or indirectly related to
employment of such person by the Construction Manager _ or
(2) by another person;
5 . Claims for damages, other than to the Work itself, because
of injury to or destruction of tangible property, including
loss of use resulting therefrom;
6 . Claims for damages because of bodily injury, death or a
person or property damage arising out of ownership,
maintenance or use of a motor vehicle; and
7 . Claims involving contractual liability insurance applicable
to the Construction Manager' s obligations .
8.1.2 The insurance required by paragraph 8 . 1 . 1 shall be written
for not less than the limits of liability specified below or
required by law, as applicable. Coverage shall be maintained
without interruption upon execution of this agreement until date
of final payment and termination of any coverage required to be
maintained after final payment . All ioograoce coverage shall be
written on an occurrence basis.
a. Commercial General Liability $2, 000 , 000 General Agregate
Limit (other than
Products-completed
Operations)
$2 ' 000' 008 Products-Completed
Operations
Aggregate Limit
26
$1. 000, 000 Personal and
Advertising
Liability
$I' 800' 000 Each Occurrence
Limit
$1, 000, 000 Fire Legal
Liability
$10' 000 Medical Expense
Limit (each person)
$l, 000, 00 Employee Benefit
Liability
b. Business Automobile Liability $I' 000 , 000 Bodily Injury
and Property Damage
Combined Single Limit
c. Excess Umbrella Liability -
;$5 ,000 ,000 .00
8 . 1 .3 The Owner shall be named as an additional insured under
the insurance to be obtained by the Construction Manager
pursuant to this agreement pursuant to � an additional insured
endorsement and shall be in a form acceptable to the Owner.
This insurance shall apply as primary insurance for claims or
losses due to the Construction Manager' s operations with respect
to any other insurance or self-insurance programs afforded to
the Owner. There shall be no endorsement or modification of
this insurance to make it excess over other available insurance,
alternatively, if such insurance states that it is excess or pro
rata, it shall be endorsed to the primary with respect to the
Owner. Such insurance shall require that the Owner be notified
if such insurance is to be cancelled or terminated at least
thirty (30) days in advance of any such cancellation or
termination.
8 . 1 . 4 The Construction Manager shall name the Architect, its
agents, employees and consultants .as additional insureds on its
liability insurance for bodily injury, sickness, disease, or
death arising out of any negligent act or omission of the
Construction Manager, its agents or others for whom the
Construction Manager is legally responsible. The obligations of
the Construction Manager shall not extend to the liability of
the Architect, the Architect ' s consultants and agents and
employees of any of them arising out of (1) the preparation or
approval of maps, drawings, opinions, reports, surveys, change
orders, designs or mpeoiticati000, or the giving of or the
failure to give directions or instructions by the Architect, the
Architect ' s consultants and agents and employees of any of them
provided such giving or failure to give is the primary cause of
the injury or damage. Such insurance to be provided on a
primary non-contributory basis .
27
Such insurance shall require that the insurance carrier shall
notify the Architect if such insurance is to be cancelled or
terminated at least thirty (30) days in advance of any such
cancellation or termination .
8' 2 PERFORMANCE AND PAYMENT BONDS
The Construction Manager shall require each of the
Subcontractors or Suppliers to furnish bonds covering faithful
performance and completion of the Subcontract and payment of
obligations arising thereunder. The cost thereof shall be
included in the Cost of the Work. The amount of each bond shall
be equal to one hundred percent (100%) of the Subcontract Sum.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 MISCELLANEOUS PROVISIONS
9'1'1 It is expressly understood that the Owner shall be
directly retaining the services of an Architect/Engineer.
9 .1'2 Notwithstanding anything contained herein, it is expressly
understood that the Construction Manager' s Project Control
Systems, including without limitation - estimating, scheduling,
purchasing, cost reporting and project engineering systems, and
all modifications, additions, or alterations thereto, are and
shall remain the sole property of the Construction Manager.
9.1.3 It is expressly understood that in the event the
Construction Manager incurs legal or other professional fees in
the process of pursuing or defending a claim, suit or dispute
with a Trade Contractor directly relating to the Project, on
behalf of the Owoer, then such fees shall be reimbursable to the
Construction Manager as a Cost of the Work pursuant to Article
6; provided however, that in no event shall such fees exceed
_, and shall not include Attorney' s Fees .
9.1.4 If the Construction Manager wishes to make a claim for
additional compensation as a result of action taken by the Owner
or Architect, the Construction Manager shall give written notice
of his claim within 15 days after occurrence of such action. No
claim for additional compensation shall be valid unless so made.
Any changes in the Construction Manager' s fee or the Guaranteed
Maximum Price shall be valid only to the extent that such
changes are included in writing signed by the Owner and the
Construction Manager.
28
Notwithstanding the event of any claim, or other matter in
question arising out of or relating to this Agreement or the
breach thereof, the Construction Manager shall carry on the Work
and the Owner shall continue to make payments in accordance with
this Agreement .
9 .2 NO PUNITIVE DAMAGES
To the fullest extent permitted by law, neither party to this
agreement shall be liable to the other for any punitive damages
resulting from the performance or nonperformance of the
agreement notwithstanding the fault, tort (including
negligence) , strict liability or other basis of legal liability
of the parties so released or whose liability is so limited and
shall extend to the officers, directors, employees, and agents
of such party.
9.3 OTHER PROVISIONS
9.3 .1 Unless otherwise noted, the terms used in this Agreement
shall have the same meaning as those in the General Conditions
of the Contract for Construction, as amended.
9 .3.2 EXTENT OF CONTRACT
This Contract, which includes this Agreement and the other
documents incorporated herein by reference, represents the
entire and integrated agreement between the Owner and
Construction Manager and supersedes all prior negotiations,
representations or agreements, either written or oral . This
Agreement may be amended only by written instrument signed by
both the Owner and Construction Manager. If anything in any
document incorporated into this Agreement is inconsistent with
this Agreement, this Agreement shall govern
9 .3 .3 OWNERSHIP AND USE OF DOCUMENTS
The Drawings, Specifications and other documents prepared by the
Architect, and copies thereof furnished to the Construction
Manager, are the property of the Owner and are for use solely
with respect to this Project. They are not to be used by the
Construction Manager, Subcontractors, Sub-subcontractors or
suppliers on other projects, or for additions to this Project
outside the scope of the Work, without the specific written
consent of the Owner and Architect . The Construction Manager,
Subcontractors, Sub-subcontractors and suppliers are granted a
limited license to use and reproduce applicable portions of the
Drawings, Specifications, and other documents prepared by the
Architect appropriate to and for use in the execution of the
Work under the Contract Documents .
29
9 . 3 .4 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance
with the laws of state of Illinois. Venue for the resolution of
any disputes or enforcement of any rights arising out of or in
connection with this agreement shall be in the circuit court of
Kane County, Illinois .
Notwithstanding the foregoing, the Construction Manager hereby
acknowledges and agrees that the Owner as a home rule
municipality may elect to exclude the provisions of the Public
Construction Contract Act (30 ILCS 557/1 et . seq. , (Public Act
91-647) , hereinafter referred to as the "Act") from the
provisions of this agreement and from the Project in general .
The Construction Manager hereby waives the incorporation of the
provisions of the Act into this Agreement and any amendments
hereto and to the Project and waives any and all relief and
additional compensation it would be entitled to as a result of
the existence of the Act . The foregoing shall not, however, be
interpreted to modify any other terms of this Agreement
including any provisions of this Agreement which would otherwise
entitle the Construction Manager to make claims for additional
compensation. The Construction Manager agrees to include
similar provisions relating to exclUding and waiving the
provisions of the Act in a form acceptable to the Owner in all
subcontracts and other agreements for the Project .
9 .3 .5 ASSIGNMENT
The Owner and Construction Manager respectively bind themselves,
their partners, successors, assigns and legal representatives to
the other party hereto and to partners, successors, assigns and
legal representatives of such other party in respect to
covenants, agreements and obligations contained in the Contract
Documents . Neither party to the Contract shall assign the
Contract as a whole without written consent of the other . If
either party attempts to make such an assignment without such
consent, such purported assignment shall be void and without
effect and that party shall nevertheless remain legally
responsible for all obligations under the Contract .
9.3 . 6 NO PERSONAL LIABILITY
No official, director, officer, agent or employee of the Owner
shall be charged personally or held contractually liable under
any -term or provision of this Agreement or because of their
execution, approval or attempted execution of this Agreement .
31
9 .3 .7 GENERAL CONDITIONS FOR THE CONSTRUCTION PHASE
For the Construction Phase, the General Conditions of the
Contract shall be the 1997 Edition of AIA Document A20I' General
Conditions of the Contract for Construction, as amended by the
Supplementary General Conditions dated , and as
amended by the version attached bereto, which is incorporated
herein. For the Preconstruction Phase, or in the event that the
Preconstruction and Construction Phases proceed 000cuzreutly,
the 1987 Edition of AIA Document A201, General Conditions of the
Contract for Construction, as amended by the Supplementary
General Conditions dated June 14, 2000, shall apply to the
Preconstruction Phase only as specifically provided in this
Agreement . The term "Contractor" as used in the I987 Edition of
AIA Document A201' General Conditions of the Contract for
Construction shall mean the Construction Manager. In the event
of any conflict between the terms of this agreement and such
general conditions of the contract as provided in the 1987
Edition of AZA Document A20I, General Conditions of the Contract
for Construction as amended, the terms of this agreement shall
control .
9 .3 .8 NONDISCRIMINATION
In all hiring or employment made possible or resulting from this
Agreement, there shall be no discrimination against any employee
or applicant for employment because of sex, age, race, color,
creed, national origin, marital status, of the presence of any
sensory, mental or physical handicap, unless based upon a bona
tide occupational qualification, and this requirement shall
apply to, but not be limited to, the following : employment
advertising, layoff or termination, rates of pay or other forms
of compensation and selection for training, including
apprenticeship.
No person shall be denied or subjected to discrimination in
receipt of the benefit of any . services or activities made
possible by or resulting from this Agreement on the grounds of
sex, race, color, creed, national origin, age except minimum age
and retirement provisions, marital status or the presence of any
oe000ry, mental or physical handicap . Any violation of this
provision shall be considered a violation of a material
provision of this Agreement .
3?
9 . 3 . 9 NO CO-PARTNERSHIP OR AGENCY
It is understood and agreed that nothing herein contained is
intended or shall be construed to, in any respect, create or
establish the relationship of co-partners between the Owner and
the Construction Manager or as constituting the Construction
Manager as the general representative or general agent of the
Owner for any purpose whatsoever.
9 .3.10 SEVERABILITY
The parties intend and agreed that, if any paragraph, sub-
paragraph, phrase, clause or other provision of this Agreement,
or any portion thereof, shall be held to be void or otherwise
unenforceable for any reason, all other portions of this
Agreement shall remain in full force and effect .
9 . 3.11 HEADINGS
The headings of the several paragraphs of this Agreement are
inserted only as a matter of convenience and in no way are they
intended to define, limit or describe the scope of intent of any
provision of this Agreement nor shall they be construed to
affect in any manner the teLlits and provisions hereof or the
interpretation or construction thereof.
9 .3. 12 MODIFICATION OR AMENDMENT
This Agreement and its attachments constitutes the entire
Agreement of the parties on the subject matter hereof and may
not be changed, modified, discharged or extended except by
written amendment duly executed by the parties . Each party
agrees that no representations or warranties shall be binding
upon the other party unless expressed in writing herein or in a
duly executed amendment hereof, or change order as herein
provided.
9 .3 .13 NEWS RELEASES
The Construction Manager may not issue any news releases without
prior approval from the Manager nor will the Construction
Manager make public proposals developed under this Agreement
without prior written approval from the Manager prior to said
documentation becoming matters of public record.
9 . 3.14 COOPERATION WITH OTHER CONSULTANTS
The Construction Manager shall cooperate with any other
consultants in the Owner' s employ or any work associated with
the Project .
33
9 . 3 .15 INTERFERENCE WITH PUBLIC CONTRACTING: P.A. 85-1295
The Construction Manager certifies hereby that it is not barred
from bidding on this contract as a result of violations of
either Section 33E-3 or Section 33E-4 of the Illinois Criminal
Code.
9. 3 .16 SEXUAL HARASSMENT.
As a condition of this contract, the Construction Manager shall
have written sexual harassment policies that include, at a
minimum, the following information:
A. the illegality of sexual harassment;
B_ the definition of sexual harassment under state law;
C. a description of sexual harassment utilizing examples;
D. the Construction Manager' s internal complaint process
including penalties;
E. the legal recourse, investigative and complaint process
available through the Illinois Department of Human Rights,
and the Illinois Human Rights Commission;
F. directions on how to contact the department and commission;
G. protection against retaliation as provided by Section 6-101
of the Human Rights Act (copy attached) ;
Copies of the policies must be provided to the City of Elgin and
the Illinois Department of Human Rights upon request . P.A. 87-
1257
9.3.17 WRITTEN COMMUNICATIONS
All recommendations and other communications by the Construction
Manager to the Manager and to other participants which may
affect cost or time of completion, shall be made or confirmed in
writing. The Manager may also require other recommendations and
communications by the Construction Manager be made or confirmed
in writing.
9.3.18 NOTICES
All notices, reports and documents required under this Agreement
shall be in writing and shall be mailed by First Class Mail,
postage prepaid, addressed as follows:
As to Owner As to Construction Manager
Raymond H. Moller M.I .C.
Director of Economic Development Dennis Kihtop
City of Elgin President
150 Dexter Court M. I.C. Inc.
Elgin, Illinois 60120-5555 1344 HollisterDr .
E-Mail : Moller_r@cityofelgin. org Batavia, IL 60510
E-Mail : Dennis@micconstruction.com
34
ARTICLE 10
TERMINATION OR SUSPENSION
10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE
10 .1.1 Prior to execution by both parties of Amendments to
this agreement establishing the final Guaranteed Maximum Price,
the Owner may terminate this Contract at any time without cause,
and the Construction Manager may terminate this Contract for any
of the reasons described in Subparagraph 14 . 1 . 1 of AIA Document
A201 .
10. 1.2 If the Owner or Construction Manager terminates this
Contract pursuant to this Paragraph 10 . 1 prior to commencement
of the Construction Phase, the Construction Manager shall be
equitably compensated for Preconstruction Phase services
performed prior to receipt of notice of termination; provided,
however, that the compensation for such services shall not
exceed the compensation set forth in Subparagraph 4 . 1 . 1 .
10.1.3 If the Owner or Construction Manager terminates this
Contract pursuant to this Paragraph 10 . 1 after commencement of
the Construction Phase, the Construction Manager shall, in
addition to the compensation provided in Subparagraph 10 . 1 .2 be
paid an amount calculated as follows :
. 1 Take the Cost of the Work incurred by the Construction
Manager.
. 2 Add the Construction Manager' s Fee computed upon the
Cost of the Work to the date of termination at the rate
stated in Paragraph 5 . 1 or, if the Construction Manager' s
Fee is stated as a fixed sum in that Paragraph, an amount
which bears the same ratio to that fixed-sum Fee as the
Cost of Work at the time. of termination bears to a
reasonable estimate of the probable Cost of the Work upon
its completion.
. 3 Subtract the aggregate of previous payments made by the
- Owner on account of the Construction Phase.
The Owner shall also pay the Construction Manager fair
compensation, either by purchase or rental at the election of
the Owner, for any equipment owned by the Construction Manager
which the Owner elects to retain and which is not otherwise
included in the Cost of the Work under Clause 10 . 1 . 3 . 1 .
35
To the extent that the Owner elects to take legal assignment of
subcontracts and purchase orders (including rental agreements) ,
the Construction Manager shall, as a condition of receiving the
payments referred to in this Article 10, execute and deliver all
such papers and take all such steps , including the legal
assignment of such subcontracts and other contractual rights of
the Construction Manager, as the Owner may require for the
purpose of fully vesting in the Owner the rights and benefits of
the Construction Manager under such subcontracts or purchase
orders .
Subcontracts, purchase orders and rental agreements entered into
by the Construction Manager with the Owner' s written approval
prior to the execution of Amendments to this agreement shall
contain provisions permitting assignment to the Owner as
described above.
10 .2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM
PRICE
Subsequent to execution by both parties of Amendments to this
agreement establishing the final Guaranteed Maximum Price, the
Contract may be terminated as provided in Article 14 of AIA
Document A201 .
10 .2. 1 In the event of such termination by the Owner, the
amount payable to the Construction Manager pursuant to
Subparagraph 14 . 1 .2 of AIA Document A201 shall not exceed the
amount the Construction Manager would have been entitled to
receive pursuant to Subparagraphs 10 . 1 . 2 and 10 . 1 .3 of this
Agreement .
10 .2. 2 In the event of such termination by the Construction
Manager, the amount to be paid to the Construction Manager under
Subparagraph 14 . 1 .2 of the General Conditions shall not exceed
the amount the Construction Manager would be entitled to receive
under Subparagraphs 10 . 1 . 2 or 10 . 1 . 3 above, except that the
Construction Manager' s Fee shall be calculated as if the Work
had been fully completed by the Construction Manager, including
a reasonable estimate of the Cost of the Work for Work not
actually completed.
10 .2. 3 Subsequent to execution by both parties of amendments
to this agreement establishing the final Guaranteed Maximum
Price, the Owner may terminate this contract without cause at
Owner' s convenience upon fifteen (15) days prior written notice
to the Construction Manager.
36
In the event of such termination by the Owner the amount payable
to the Construction Manager pursuant tol subparagraph 14 . 1 . 2 of
AIA Document A201 shall not exceed the Lamount the Construction
Manager would have been entitled tO receive pursuant to
subparagraphs 10 . 1 .2 and 10 . 1 . 3 of this Agreement . In such
event the Construction Manager shall als0 be reimbursed for its
actual costs for demobilization and the costs of any
cancellation of existing subcontracts and purchase orders,
provided however, the reimbursement for actual costs of
demobilization shall in no event exceed One Hundred Thousand
Dollars ($100, 000 . 00) and shall not exceed the Guaranteed
Maximum Price .
10 .3 SUSPENSION
The Work may be suspended by the Owner as provided in Article 14
of the General Conditions; in such case, the Guaranteed Maximum
Price, if established, shall be increased as provided in
Subparagraph 14 .3 .2 of the General Conditions except that the
term "cost of performance of the Contract" in that Subparagraph
shall be understood to mean the Cost of the Work and the term
"profit" shall be understood to mean the Construction Manager ' s
Fee as described in Subparagraphs 5 . 1 . 1 .
IN WITNESS WHEREOF, the undersigned have placed their hands and
seals upon and executed this Agreement in triplicate as though
each copy hereof was an original and that there are not other
oral agreements that have not been reduced to writing in this
statement.
For the Owner:
Dated this / PI- 030VLA-le
4day of , A.D. , 2001
ATTEST: The City of Elgin
AI
BY: 1( ._ 1/4, By, .._ O . .. :_.
City Clerk Cly Mi ager
(Seal)
37
For the CONSTRUCTION MANAGER,�
'l
Dated this day of \`!x` '�UA / A. 1:D. , 2001 .
ATTEST M. I .IC. Inc.
By: 11),../.016k) By:
`�..
Secretary
(SEAL)
38
FEB-09-2001 FRI 06:05 PM FISCAL SERVICES F7'-,./, NO. 1 947 931 5622 P. 31/38
• lune 14, 20U0
5iIN'i.F`,II_N1. P.Y G�Ni.'i.t 'CON-n11-ION`
II �
These Supplementary General Conditions amendDoc..iment 2C[, General Conditions of t
Contract for Construction, 1987 cdtiioa, as follows
1.1.2 Revise the last scn'.ence of this suoparn;raph.to read e A.rehi:eft and Consmicttor. 41ana, .
shall each, however, be entitled to performance and enforcer:.e.: of obligations under the other's contract
intended to facilitate performance of its duties."
1.3.1 Add the following in the ninth line after"the author of:Incrn and": "Owner has and".
2.2.1 Delete this subparagraph ;nits entirety.
2.2.2 Revise this subparagraph to read "The Owner shall fur::: h surveys descr.bing physical
characteristics, legal limitations and utility locations for the sir of the Project,soil reports and
subsurface investigations,and a legal description of the ;it_."
2.2.4 Delete the period () at the end of this Pal•nT70h _nal n 1 etc' fntlow1110 ":rrul the ('onttruuricn
.\lanager shall be entitled to rely upon the accu-acy and completeness thereof."
2.4.I Delete the third sentence and substitute the following in !ace therefor: "In such case, the cost of
correcting such deficiencies shall be charged against the Guar?. teed Maximum Price_" Delete the laic
sentence and substitute the following in place therefor: "If the -ost of correcting such deficiencies
exceeds the unpaid balance of the Guaranteed Maximum Price.the Consmaction Manager shall pay the
difference to the Owner."-
3.3.3 Add the following at'che beginning of this sentence: "'Except as may be approved in writing by the
Owner and the Architect,".
3.6.1 Delete this subparagraph and substitute the following in place therefor: "The Construction (/'
Manager shall pay all sales, consumer.use and other similar taxes for the Work or portions thereof
provided by the Construction Manager which arc legally enact:_at the time the Guaranteed Maximum
Price is established."
3.12.8 Delete the period(.) at the end of the last sentence in t paragraph and add the following: ",
except for arty such errors or omissions which are within the Ar httect's statutory or customary design
responsibility."
3.13.2 At the end of this paragraph delete "to the Construction Manager" and substitute the followinc2 in
its place: "against the Guaranteed Maximum?rice."
3.15.1 Replace the entire paragraphwit!1 the following: "To the Fullest extent permittedby law, the
Consiniction Manager waives any right of contribution against and shall indemnify and hold harmless
the Owner,Owner's R'epresenta.tive, Architect. Architect's cons::!tants, a1:d agents and employees of any
of them from and against claims, damages. losses and expenses, t'Cluding but not limited to attorney's
_
1
FE3-09-2001 FRl 06:05 Pay FISCAL SERVICES F^,'/1 HO. 1 847 931 5622 P. 32/38
Jure 14 2 ri
lees, artsirlc out 0 a: res'e;ong from ur :n connect:on w:Cr. the performance of the Work, provided th t
i.-iv sccli claim, damage, fuss, nr Grease (these. are c0ilc_!ive,y referred 'claim s ) is ICL butablc to
bodily injury, Sickness, disease or death or to injury to or dc:struz:ton of ianatbie property (other thant%'
t
Work itselr) including loss of use resulting therefrom and is caused in .'hole or in oar. by any negligent
ac: Or omission o! Contractor, any Subcontractor, anyone .:hoes:lac's any of thcrn may be liable:,
regardless of %c'hether or not tt is caused :n part by a patty ir.dem.ifica ber_ecnder. Such obligation 511311
not be construed to ilegat ,abridge, or r'-'7'uCe Other riyhor obi,g_.ocs of indemnity r wh..h would
otherwise exist as to a party or person described in this C untr act;"
3.'S.4 Add the following new Subparagraph: "The Owner sha!lleause _nv ocher contractor who may
have a contract with the Omer to perform construction or instaiiiation Work in the areas where Work
w'i!l be performed under the Ow'ncrrCor.structtoit :Manager Agreement, :o agree to indemnify the Owner
and Construction Manager and hold them harmless from all cia: as for bodily injury and property
damage char may arise from that contractor's opera::ons, Such pra,.'Bions `'1311 be in a form satisfactory
to the Construction Manager."
4.1.4 Delete in its entirety.
4 2.4 relete the first sentence.
4.2.7 Revise the first sentence to read as follows: "The Architect shall review and approve or take other
appropriate action upon the Construction Manager's submittals such as shop drawings, product data and
samples for conformance with infommation given and the design concept expressed in the Contract
Documents. The Architect shall carefully study and compare 4s?drawings and other information
furnished by the Cons:ruction Manager with the Contract Docu ncnts and shall at once report to the
Construction ,Manager errors, inconsistencies or omissions disco‘cred."
4.2.12 In line six, insert a period(.)after "...partiality to either.' Delete: and shall not be liable for the
result o f any interpretation or decision rendered in good faith int such capacity."
4.3.2 Delete all references to arbitration in this paragraph.
4.3.4 In line two, delete "including arbitration".
4.4.4 Revise the latter parr of thc first sentence to read as foltovs: "which!ecision sh:.:11 not be final and
binding on the parties."
4.5 Delete this paragraph and its subparagraphs in their entirety
6.3.1 In the last sentence substitute "Owner".for "Architea;'...
7.3 Change "Construction Change Directive" to "Constrtction1Chauge Authorization" in this paragraph
and its subparagraphs.
7.3.2 Revise the first sentence to read. "A Consnvetion Charge c\utiioria.atian in thc form attached
hereto as Exhibit SGC-A shall be used in the absence of tonal ajgrecment oil the terms of a Change Order
.11
9
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•
•
•
June 14, 2000
7.3.3.3 Revise this phrase to read as follows: "(l) the Cost of the Work as defined in Article 6 of the
OwnertConstruction Manager Agreement for the Change in the Wqr ; (2)an overhead factor of eight
percent(8%), plus (3) the Construction Manager's Fee a; descnbedjin Subparagraph 5.1.2 of the
Owner/Construction Manager Agreement.
8.3.1 Replace the paragraph with the following: "8.3.1 If the Construction Manager is delayed at any
time in progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either,
or of a separate contractor directly employed by the Owner,or by ghanges ordered in the Work by the
Owner, or by acts of God, or by strikes or by other causes beyond the Construction Manager's control, or
by other causes which the Owner and Architect determine may justify delay,then the contract time shall
be extended by Change Order for such reasonable time as the Owner and Architect may determine. For
the purposes of this paragraph, delays caused by the subcontractors or suppliers shall not be consented as
being beyond the control of the Construction Manager." For the purposes of this paragraph an 'Act of
God' means an earthquake, flood,cloudburst, tornado, or other phnomena of nature beyond the power
of the Construction Manager to foresee or to make preparation and defense against. Precipitation,
windstorms,or other natural phenomena of normal intensity, based on U.S. Weather Bureau reports, for
the particular locality and for the particular season of the year in which the Work is being prosecuted,
shall not be construed an 'Act of God' and no extension of time will be granted for the delays resulting
there from. No extension of time will be granted for any delay or skispension of Work due to the fault of
the Construction Manager. No extension of time on account of a delay due to unforeseen causes will be
granted if written application therefore is not filed by the Construction Manager with the Owner and thc
Architect setting forth the reasons which the Construction Manager believes will justify the approval of
its request."
9.1.1 Add thc following to the end of this paragraph: "Whenever the team"Contract Sum" appears
throughout the Contract Documents it shall be deemed to mean "guaranteed Maximum Price".
9.6.1 Gadd the following after"after the Architect has issued a Certificate for Payment": "or within
fifteen(15)days after the Construction Manager submits its Application for Payment,whichever first
occurs,.
9.6.2 In line two(2)delete "upon" and substitute the following inits place "within five(5)days of'.
9.7.1 In line six(6)delete "or awarded by arbitration",
10.1.2 In the second line after the phrase "material reasonably believed to be" add the following:
"hazardous waste, including but not limited to,". In addition delete the last two(2)sentences of this
purpgraph and substitute the following in its place: "The Owner shall be responsible for the removal,
encapsulation, transportation, and disposal of any hazardous material required in connection with the
Project."
10.1.4 In line seven (7)add the following after"material is": "ha3ardous, including without limitation,".
In addition, delete everything in the first sentence after"including loss of use resulting therefrom".
10.2 Add the following additional subparagraph as 10.2.8: the perforrnance of the foregoing services
by the Construction Manager shall not relieve the subcontractors iof their responsibilities fur the safety of
persons and property and for compliance with all Federal,State and local statutes, rules, regulations and
orders of any governmental authority applicable to the conduct or the Work."
3
•
FEB-09-2001 FRI 06:07 PM FISCAL SERVICES FA (1O. 1 847 931 5622 P. 34/38
:uric 14, 2000
11.1.1 Delete this paragraph in its entirety.
II.1.2 Delete thisaragralph in its
P � entirety.
11.1.4 Add the following as an additional paragraph "Thi l Construction Manager shall include
language in all subcontracts and purchase orders for the Arlhttece and Owner to be named as "additional
insureds" on all liability insurance of not less than:
STATUTORY WORKERS' COMPENSATION EMPLOYERS' LIADILITYY(not
less than 5[00,000)and coverage uidti`r the United States Longshoremen's and
Harbor Workers' Compensation Act, Broad Form All States Coverage,
COMMERCIAL GENERAL LIABILITY To be provided on an"occurrence"
basis, with coverage to include explosion, collapse and underground hazards
(XCU), Blanket Contractual,Produced Independent Contractors, Completed
Operations, Personal Injury, and EmOoyees as additional insured.
BODILY INJURY LIMITS PROPERTY DAMAGE
LIMITS
$1,000.000 each occurrence $1,000,000 each occurrence
52,000,000 aggregate • - 52,000,000 aggregate
PERSONAL. INJURY LIMITS
51,000,000 each occurrence
$1,000,000 aggregate
'Aggregate shall apply to this project oily(aggregate not to include other
projects)and must be identified as suchion the certificate of insurance.
AUTOMOBILE LIABILITY including owned,non-owned, and hired
automobiles. Automobiles of subcontractors and material suppliers must meet the
same insurance rcquirements.
BODILY INJURY LIMrfS • PROPERTY DAMAGE
LIMITS
$1,000,000 Each Person
51,000,000 Each Occurrence 51,000,000 Each Occurrence
EXCESS UMBRELLA LIABILITY.to provide insurance in excess of Employer's
Liability, Commercial General Liability,i:and Automobile Liability policies
required hereunder.
55,000,000 each occurrence and 55,000100 general policy aggregate_"
11.3.1.1 In line fiver(4)after "collapse" add"flood".
4
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•
lune I a, ?')OO
1 1.3.I.3 Revised the first sentence to read as follows: "lithe Property Insurance requires minimum
deductibles, the Owner shall be responsible For the payment of same." Delete the rest of this
subparagraph.
11.3.1 Delete this subparagraph in its entirety.
11.3.9 in line seven (7), insert a period after"reach" and delete tie balance of the sentence.
11.3.10 In line two, insert a period after"insurers" and delete t:-.e balance of the paragraph.
12.1.1 In the second to the last line delete"at the Construction tanager's expense" and substitute in its
place the following: "as a Cost of the Work."
17.1.2 In line eight(8)delete "the Construction,Manager shall pay such costs" and substitute in its place
"the cost of uncovering and replacement shall be charged to the Q;unranteed Maximum Price if not
otherwise recoverable from a subcontractor."
12.2.1 Delete the last sentence and substitute the following inII ce therefor: "The cost of correcting
such rejected work shall be reimbursable to the Construction Maiager pursuant to Clause 6.1.8.2 of the
Owner/Construction Manager Agreement."
12.2.4 Delete the paragraph after the first sentence and substitutle the following in place therefor. "lithe
Construction Manager does not proceed with the correction of such defective or nonconforming Work
within a reasonable time fixed by written notice from the Architect, the Owner may remove it and may
store the materials or equipment and charge the cost thereot'to the Guaranteed Maximum Price. To the
extent that the cost of such removal and storage exceeds the unppid balance of the Guaranteed Maximum
Price, and the Construction Manager does not pay the cost of such removal and storagc within ten days
of the Owner's notice, the Owner may upon ten additional days written notice sell such Work at auction
or at private sale and shall account for the net proceeds thereof, after deducting all the costs that should
have been borne by the Construction Manager. If such proceedsiof the sale do not cover all costs which
the Construction Manager should have home. the Construction Manager shall pay the difference to the
Owner."
12.2.5 Delete the period(.)at the end of this sentence and add tlhe following: "unless the cost of
correcting such Work is reimbursable to the Construction bf anager under Clause 6.1.8.2 of the
O veer/Construction Manager Agreement."
13.5.1 In line 8 delete "and shall bear all related costs of tests, inspections and approvals" and substitute
with the following: "the cost of which shall be reimbursable toithe Construction Manager as a Cost of
the Work."
13.5.3 In line four(4)delete "the Construction Manager shall bear". in addition at the end of this
paragraph delete the period (.) and add the following: "shall becharged against the Guaranteed
Maximum Price."
13.6 Revise the paragraph to read: "Payments due and unpaid Funder the Contract Documents shall bear
interest from the date payment is due at 7 %%per annum."
14.1.1.3 in line five (5) delete "on a Certificate for Payment".
:5
FEB-09-2001 FRI 06:08 PM FISCAL SERVICES FAX NO. 1847 931 5622 P. 36/38
•
June 14, 200f)
14.1.1 5 Delet this subparagraph in its cntirery.
14.1.2 Tit line four (4) after "payment for Work executed" add "it_s;'gee earned to the date of termination".
14.3.3 In the first line delete "may" and substitute in its ?lacy
End of Supplementary General Conditions
6
0
M.I.C., Inc.
/00r111\
SPECIALISTS IN COMMERCIAL & INDUSTRIAL CONTRACTING
EXHIBIT A
KEY PERSONNEL C STS
EMPLOYEE JOB DESCRIPTION HOURLY RATE
DENNIS KINTOP PROJECT EXECUTIVE $85.00
TRAVIS WOOD SITE SUPERINTENDEN' $60.00
RON WARD PROJECT MANAGER $60.00
SUSAN DORNBOUSCH PAYOUTS &WAIVERS $45.00
TAUNYA KENNY SHOP DRAWINGS-SUP RT $40.00
BETSY VARTANIAN SUPPORT STAFF $27.00
1344 HOLLISTER DRIVE • BATAVIA, IL 60510 • 630/879-6775 • FAX 630/879-6796
•
• ..
co M.I.C.,Inc.
IIPIECIAUSTO IN COAL GOODUOTIIIAL CONTRACTING
1344 NOW/ITER MOVE•RATAVIA IL 110610•11301117114775•TAX Climirairros
CONSTRUCTION
CHANGE AUTHORIZATION
!
PROJECT NAME: Elgin River Front-segment 1 . CHANGE AUTHORIZATION NO. J. .
ARCHITECT: Hitchcock Design Group . DATE OF ISUANCE: March , 2001 .
OWNER: City of Elgin . ORIGINATOR: Taunya Kenny .
In order to expedite the Work and avoid or minimize delays In the Work which will affect Contract Sum
and/or Contract Time,the Contract Documents are hereby amended to include the additional Work
descrbed below,which is beyond the current scope of Work. • ••,-.:•• with this Work promptly. Costs as
incurred herein are in addition to the current Contract Sum and will • - Invoiced and paid on a monthly basis
and identified as separate items within the requisition. Final cost for ori Involved and change In Sum and
Time(if any)will be submitted for inclusion in a final Change Order adjusting the Contract Sum and/or
Contract Time. 1
Definition: .
•
•
LABOR $ CIRCLE ONE
MATERIAL $ T&M
OH B P $ FIXED
TOTAL $ ESTIMATED
OTHER
Attachments: .
Does Proposed Change involve a change in Contract Sum? 0 N 0 Yes (Increase] $ .
Does Proposed Change involve a change in Contract Time? 0 No 0 Yes (Increase] days.
SIGNED BY: DATE:
M.I.C., Inc.
SIGNED BY: DATE:
Hitchcock Design Group
SIGNED BY: DATE:
City of Elgin
COPIES: ClOwner OFile ElArchitect 0 Subcontractor 0 0
I AbPRP. CERTIFICATE OF LIABILITY CINSURANC5fR CW IN-1 DATE(MIA/DDIY/Y)
03/2201
PRODUCER THIS CERTIFIdATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
Buttrey-Wulff-Masaninga Agency HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR
355 First St. PO Box 580 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Batavia IL 60510
Phone: 630-879-0111 Fax:630-879-0216 INSURERS AFFORDING COVERAGE
INSURED INSURER A: Bkttuninous Casualty Corp.
INSURER B
M.I.C. , Inc. INSURER C: —
1344 Hollister Drive INSURER D:Batavia IL IL 60510 1---
I INSURER E:
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE OR THE POLICY PERIOD INDICATED.NOTWITHSTANDING
ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
MSSPOLICY EFFECTIVE POUCY EXPIRATION
LIR TYPE OF INSURANCE POLICY NUMBER DATE(MMIDD(YY) DATE(MWODNY) LIMITS
GENERAL LIABILITY EACH OCCURRENCE $10 0 0 0 00.
A X COMMERCIAL GENERAL LIABILfTY CLP2 32 8 152B 08/27/00 08/27/01 FIRE DAMAGE(Any one fire) $ 100000.
CLAIMS MADE X OCCUR MED EXP(Any one person) $ 10000.
1 PERSONAL&ADV INJURY $ 1000 0 0 0.
GENERAL AGGREGATE $2000000.
GEM.AGGREGATE LIMIT APPLIES PER: [ PRODUCTS-COMP/OP AGG $2000000.
—1 POLICY il 78, —LOC
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1000000.
A X ANY AUTO CAP3094769B
08/27/00 . 08/27/01 (F_a accident)
ALL OWNED AUTOS BODILY INJURY
r $
SCHEDULED AUTOS (Per person)1
,
X HIRED AUTOS BODILY INJURY $
X NON-OWNED AUTOS (Per accident)
PROPERTY DAMAGE $
(Per accident)
GARAGE LIABILITY I AUTO ONLY-EA ACCIDENT $
ANY AUTOEA ACC $
OTHER THAN
AUTO ONLY: AGG $
EXCESS LIABILITY EACH OCCURRENCE $
A X OCCUR [ CLAIMSMADE CUP2532562B 08/27/00 08/27/01 AGGREGATE $5000000.
$
DEDUCTIBLE
$
X RETENTION $ 0 1 s
..„. CA 0-ft
s-
WORKERS COMPENSATION AND A TORY LIMITS ER
EMPLOYERS'LIABILITY
A WC3094767B 08/27/00 1 08/27/01 ELEICHMXIDEW $500000.
EL.DISEASE-EA EMPLOYEE $5 0 0 0 0 0.
E.L.DISEASE-POLICY LIMIT $ 5 0 0 00 0.
OTHER
DESCRIPTION OF OPERATIONS/LOCATONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS
Job: Riverwalk, Elgin, Ili/ Primary & NonContributory Additional Insureds:
City of Elgin - owner; pertchcock Design Group - Landscape Architect. GL &
WC Policies Include A Waiver Of Subrogation. OCP PofLicy Named Insured:
City of Elgin & Hitchcock Design Group, 150 Dexter Court, Elgin, IL 60120.
OCP Liability Limit $1,000,000/$2,000,000.
j
CERTIFICATE HOLDER Y ADDITIONAL INSURED;INSURER LETTER: A CANCELLATION
ELGCI-1 SHOULD ANY CF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN
NOTICE TO THI CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO SO SHALL
City of Elgin IMPOSE NO OILIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR
150 Dexter Court REPRESENTAIIIVES. drnarr.,WULFIPAVXKniGjlk AGM% IMK"
Elgin IL 60120
I John J. *Alf 0 . .1 H ,,,•-
.0 r- 4 _ .. ..;file . .,
ACORD 26-S(7197)
I I ,, .toi .-•.-,. • 1988
, ._.
OF Etc).
City of Elgin Agenda Item No.
Ir
(PIOTEDIO'%. :,-,•1,--747,-; A4.
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L
February 28, 2001
G
TO: Mayor and Members of the City Council N -FROM: Joyce A. Parker, City Manager fit t tir A t t t 1 A.Mt
C.Iti t 111211,1,
SUBJECT: Construction Management Service Contract
for the Phase I Civic/Cultural; District
Riverfront/Center City Master Plan Project
PURPOSE
The purpose of this memorandum is to pro' ide the Mayor and members
of the City Council with information to Consider entering into an
agreement with M. I .C. , Inc. for construction management services
related to construction of the Phase d Riverfront/Center City
Master Plan Project.
BACKGROUND
rft.
On September 27, 2000, the City Council approved a contract with
the architectural firm, Hitchcock Design Group, to design the Phase
Riverfront/Center City Project and prOvide limited construction
phase services.
The Phase I plans and the bid specifications are complete.
The original budget estimates included an allowance for
Construction Management Services . Following the completion of the
plans and specifications, a Request for Qualifications was
submitted to 13 area construction managers . Six Elgin firms were
included within the list of firms contaCted.
In order to keep the riverfront project on track, a relatively
short turn around on the RFQ' s was stipulated. Two firms responded
to the RFQ: Jirsa Construction (Elgin and M. I .C. Construction
(Batavia) . Two firms submitted letters stating they were unable to
respond to the RFQ due to other obligatiOns. Lamp Incorporated and
Martam Construction, both Elgin firms, submitted the letters.
A review team consisting of Rick HitchcoCk, Jack Shales, Dave Lawry
and Ray Moller conducted the interviews with Jirsa and M. I .C. Both
firms are qualified construction managers and have worked with
Hitchcock Design Group on other riverfront and park development
projects . The review team concluded that M. I .C. should be selected
as the construction manager for the Riverfront Phase I project due
to their extensive experience with riverfront redevelopment
projects in Batavia and Dundee.
elmw Construction Management Service Contract
February 28', 2001
Page 2
The three phases of the construction manager contract are :
Bidding/Contract Award; Construction Phase and Post Construction
Phase. In the Bidding/Contract Award phase, the CM will assist in
the evaluation and analysis of bids and make recommendations
regarding contract award.
The construction phase commences upon completion of the bid process
and generally consists of construction inspection, scheduling and
managing the various stages of construction, subcontractors
coordination and site logistics . M. I .C. 1will be responsible for
all scheduling, trade (subcontractor) coordination, and material
ordering. The type of contract including this high level of
project oversight is referred to as a Guaranteed Maximum Price
Contract (GMP) . The GMP type contract commits the CM to a maximum
price for all work and requires the C1,1 to manage the project
schedule.
The subject contract fee consists of Only preconstruction and
construction management service costs at this time . When bids are
completed, amendments to the subject contract will be prepared to
establish the GMP for that project .
The GMP will consist of the total of all low bids for the
particular phase, a three percent (3%) Constructor' s contingency
and a two percent (2%) owner' s contingency. The constructor' s
three percent (3%) contingency covers their risk in guaranteeing
the price . This contingency will be usedrto cover those cost items
which may have inadvertently been left out of the bid documents .
The contingency will not be used to cover changes in scope (i . e.
change orders) . Use of the constructor' s contingency must be
reported to the City' s project manager prior to use .
The two percent (2%) owner' s contingency is intended to cover
change order issues less than $10, 000 . , The contract establishes
authority for the City Manager to approve change orders less than
$10, 000 to help expedite the construction process . Any use of this
contingency by the City Manager will be reported to the City
Council . Any change order exceeding $10, 000 or when the two
percent (2%) contingency is exceeded, mist adhere to the City' s
established change order procedure.
An incentive clause is also included within the subject contract .
The CM shares 25 percent of all remaining dollars below the GMP.
rm. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
Project Management Team (PMT) and the Rverfront Action Committee
(RAC) .
. - .
rm Construction Management Service Contract 11
February 28"), 2001
Page 3
FINANCIAL IMPACT
/ 1
The budget for this project is $5, 300 , 000 To date, $1 , 034 , 910 has
already been charged to this project . The cost for the
preconstruction services , construction phase and post construction
phase services equals $33 , 927 . 00 and $277,[069 . 00, respectively, for
a total of $310 , 996 . 00 .
Sufficient funds exist within account no. 275-0000-791 . 92-32 ,
project number 039518 for the contract .
LEGAL IMPACT
Uj\)4A contract will need to be prepared and reviewed by the Legal
Department .
ALTERNATIVES
Approve contract as recommended or direct staff to adjust the
contract in line with City Council recOmendations .
rRECOMMENDATION
It is recommended that the City Council approve the subject
contract with M. I . C. in the amount of $310, 996. 00 and direct staff
,
to prepare the contract documents.
qoypectaaly mitted,
41,47
.411
ce A. Parker
City Manger
. .
RHM: sp
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