02-347 f �
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Resolution No. 02-347
RESOLUTION
AUTHORIZING EXECUTION OF AN AGREEMENT WITH
M. I .C. , INC. FOR PHASE I FESTIVAL PARK
RIVERFRONT/CENTER CITY MASTER PLAN PROJECT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Olufemi Folarin, Interim 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 Phase I Festival Park Riverfront/Center City Master Plan
Project, a copy of which is attached hereto and made a part
hereof by reference .
s/ Ed Schock
Ed Schock, Mayor
Presented: October 23 , 2002
Adopted: October 23 , 2002
Vote : Yeas : 7 Nays : 0
Attest :
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
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AGREEMENT
THIS AGREEMENT is made and entered into this JI-ff day of O ,2002,by and between
the CITY OF ELGIN,an Illinois municipal 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 Festival Park
project which generally includes excavation work related to the removal of the townhome site
from the floodplain, compensatory storage related excavation at the Festival Park site and
the construction of shoreline and riverwalk improvements within Festival Park and adjacent
to the Fox River, hereinafter referred to as the "PROJECT".
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-writ:
ARTICLE 1
All work hereunder shall be performed under the direction of the Director of Economic
Development of the 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 shall 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 Architect 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 minimize adverse effects of labor or material shortages;time requirements for
procurement, installation and construction completion; and factors related to construction
cost including estimates of alternative 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 constructed 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 AND 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, nor 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.
In all contracting, hiring or employment made possible or resulting from this Agreement,
there shall be no discrimination against any firm, employee or applicant for employment
because of sex, age, race, color, creed,national origin, marital status, or the presence of
any sensory, mental or physical 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
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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 conformance with the City of Elgin
procurement ordinance. The Construction 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-qualification 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 drawings, specifications, and other information prepared by the
Architect, Invitations to Bid, Instructions to Bidders, Proposal Form, Scopes of Work,
General Requirements, General Conditions and Supplementary General Conditions,
sample Trade Contracts, Performance and Payment Bond Forms, Insurance Specifications,
and other conditions of the contract to secure trade contractor or supplier bids for all
elements of the project.
Bid Packages shall be prepared and developed as the Construction Manager determines
are in the best interests 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 conducted 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, regulations,
orders, and ordinances applicable to public contractors 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-1, et. Seq. (1996).
2.1.4 LONG-LEAD TIME ITEMS
The Construction Manager shall recommend to the Owner and Architect a schedule for
procurement of long-lead 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
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ordinance. The Construction Manager shall expedite the delivery of long-lead time items.
2.1.5 EXTENT OF RESPONSIBILITY
The Construction Manager does not warrant or guarantee estimates and schedules except
as maybe included as part 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 Preconstruction
Services:
NAME TITLE
1. M.I.C. Staff See Exhibit A
2.
3.
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 two 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 projector a phase thereof,the
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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
expenditure occurs and monthly.
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 reimbursable as a Cost of the Work. Any such amendments to the
subcontractor and supplier contracts authorized by the Construction Manager shall be
applied and charged against the Construction Manager'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 event any
such proposed amendment is not germane to the original subcontract as signed and is in an
amount equal to or greater than 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 the Owner 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 statement of its basis, which shall include:
.1 A list of the Drawings and Specifications,including all addenda thereto and the
Conditions of the Contract, which were used in preparation of the Guaranteed
Maximum Price proposal.
.2 A list of allowances and a statement of their basis.
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.3 A list of the clarifications and assumptions made by the Construction Manager
in the preparation of the Guaranteed Maximum Price proposal to
supplement the information contained in the Drawings and Specifications.
.4 The proposed Guaranteed Maximum Price, including a statement of the
estimated cost organized by trade categories based upon the proposed 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 is based, and a schedule of the Construction Documents
issuance data upon which the date of Substantial Completion is based.
2.2.5 The Construction Manager shall meet with the Owner and Architect to review
the Guaranteed Maximum 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 appropriate
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 acceptance of the Construction Manager's Guaranteed
Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager
shall not incur any cost to be reimbursed as part of the Cost of the Work for Subcontractors,
except as the Owner may specifically authorize in writing.
2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal,the
Guaranteed Maximum Price and its basis shall be set forth in Amendments to this
agreement.To the extent that the Project proceeds in phases pursuant to Subparagraph 2.1.2,
such amendments shall be added to the then current Guaranteed Maximum Price, it being
the intent of the parties that there be one Guaranteed Maximum Price for the entire Project.
The Guaranteed Maximum Price shall be subject to additions and deductions by a Change in
the Work as provided in the Contract Documents and the date of Substantial Completion
shall be subject to adjustment as provided in Section 8.3 of the General Conditions.
2.2.9 The Owner shall authorize and 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. Such revised Drawings and
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Specifications shall be furnished to the Construction Manager in accordance with schedules
agreed to by the Owner,Architect and Construction Manager. The Construction 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 shall include in the Cost of the Work only those
taxes which are enacted at the time the Guaranteed Maximum Price is established.
2.2.11 If desired by the Owner, the Guaranteed Maximum Price shall include an amount
equal to 2% of the 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 Allowance is not expended
during the project,all remaining Owner's Allowance shall be returned to the Ownerwithout
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 or a phase thereof shall commence upon the
following:
.1 The Owner's acceptance of the Construction Manager's Guaranteed
Maximum Price proposal 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 the
construction of the Project or phase thereof.
2.3.2 ADMINISTRATION
2.3.2.2 The Construction Manager shall schedule and conduct weekly meetings at which
the Owner,Architect, Construction Manager and appropriate Subcontractors can discuss
the status of the Work. The Construction Manager shall prepare and promptly distribute
meeting minutes.
2.3.2.3 The Guaranteed Maximum Price proposal 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 the 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 accomplished, problems encountered and other similar relevant data as the
Owner may reasonably require. The log shall be available to the Owner and Architect.
2.3.2.5 The Construction Manager shall develop a system of cost control for the Work,
including regular monitoring of actual costs for activities in progress and estimates for
uncompleted tasks and proposed changes. The Construction 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 Paragraph 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 Manager 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 reasonably
appropriate entity, to verify the presence or absence of the material or substance reported
by the Construction Manager and, in the event such material or substance is found to be
present, to verify that it has been rendered harmless. Unless otherwise required by the
Contract Documents, the Owner shall furnish in writing to the Construction Manager and
Architect the names and qualifications of persons or entities who are to perform tests
verifying the presence or absence of such material or substance or who are to perform the
task of removal or safe containment of such material or substance. The Construction
Manager 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 Construction 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 objection.
2.5 PROGRESS REPORTS
2.5.1 An outline project milestone schedule is prodded herein under:
2.5.2 A preliminary project schedule for the Project shall be prepared by the Construction
Manager and submitted to the Owner by September , 2002 in accordance with
Article 2.1.3 above. Progress shall be recorded on the project schedule and
submitted monthly as a component of the Status Report described in .3 below. A
detailed construction schedule shall be submitted with each phase of the Guaranteed
Maximum Price.
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 Construction 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
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the Construction Manager may retain copies of such work products for its records. Such
work products are not intended or represented to be suitable forreuse bythe Owneron 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 Manager.
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 See Exhibit A
2.
3.
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 less than two weeks after receipt by the Construction Manager.
ARTICLE 3
OWNER'S RESPONSIBILITIES
3.1 INFORMATION AND SERVICES
3.1.1 The Owner shall provide full information in a timely manner regarding the
requirements of the Project, including a program which sets forth the Owner's objectives,
constraints and criteria, including space requirements and relationships, flexibility and
expandability requirements, 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
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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 3.1.3.1 through
3.1.3.4, except to the extent that the Construction Manager knows of any inaccuracy.
3.1.3.1 Reports,surveys,drawings and 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 streets,
alleys,pavements and adjoining property and structures; adjacent drainage;rights-of-way,
restrictions,easements,encroachments,zoning,deed restrictions,boundaries and contours
of the site; locations,dimensions 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,
evaluations of hazardous materials, ground corrosion and resistivity tests, including
necessary operations for anticipating subsoil conditions, with reports and appropriate
professional recommendations.
3.1.3.4 Structural,mechanical, chemical, air and water pollution tests,tests for hazardous
materials, and other laboratory and environmental tests, inspections 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 of 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 Director of Economic
Development who shall have the authority to make decisions on behalf of the Owner which
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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 an amount of less than $10,000.00 per
change order. Any such change orders authorized by the City Manager shall be applied
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
authorized by the City Manager. Any change order of $10,000.00 or more must 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 cost estimating
services,described in the Agreement between the Owner and the Hitchcock Design Group,
dated June 13, 2001, including the additional services described therein if required by the
Project. Such services shall be provided in accordance with time schedules agreed to by the
Owner, Architect and Construction Manager.
3.4 LEGAL REQUIREMENTS
The Owner shall determine and advise the Architect and Construction Manager of any
special legal requirements relating specifically to the Project which differ from those
generally applicable to construction in the jurisdiction of the Project.
The Owner shall furnish such legal services as are necessary to provide the information and
services required under Paragraph 3.1.
3.5 OWNER'S INSURANCE
The Owner shall provide liability insurance and property insurance (Builder's Risk
Insurance) as defined in Article 11.2 and 11.3 of the AIA A201 General Conditions, 1987
version.
ARTICLE 4
COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE
SERVICES
The Owner shall compensate and make payments to the Construction Manager for
Preconstruction Phase services as follows:
4.1 COMPENSATION
4.1.1 For the services described in Paragraphs 2.1 and 2.2 the Construction Manager's
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compensation shall be a Lump Sum of $41,250.00 inclusive of all fees and expenses
regardless of actual time expended or actual costs incurred by the Construction Manager for
such services.
4.1.2 Compensation for Preconstruction Phase services shall be equitably adjusted if
such services extend beyond twelve months from the signature date of this agreement or if
the originally contemplated scope 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 shall receive additional compensation on an hourly basis
equal to one and eight-tenths(1.80)times the Basic Labor Rate inclusive of all overhead and
profit. The Basic Labor Rate Schedule is attached as Exhibit 1. Additional reimbursable
expenses shall be paid at the actual costs of additional expenses times an overhead factor of
115% (actual cost x 1.15).
4.2 PAYMENTS
4.2.1 The Owner shall make monthly payments to the Construction Manager within 30
days after receipt of the Construction Manager's invoice. Said periodic payments to the
Construction Manager shall not exceed the amounts shown in the following fee schedule,
plus any changes, and full payment for each task shall not be made until the task is
completed and accepted by the Owner. Amounts unpaid after the date on which payment is
due shall bear interest at the rate of 7 1/2%per annum.
BILLING DATE ACTIVITY FEES
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ARTICLE 5
COMPENSATION FOR CONSTRUCTION PHASE SERVICES
The Owner shall compensate the Construction Manager for Construction Phase services as follows:
5.1 COMPENSATION
5.1.1 For the Construction Manager's construction administration and management services
during the construction phase including the services as described 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 Construction Manager's Fee for Construction and Post Construction Phase Services
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shall be lump sum of$351,885.00 inclusive of all fees and expenses regardless of actual
time expended or actual costs incurred by the Construction Manager for such services. The
Construction Manager's Fee for construction phase services 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(12)month construction phase and such additional duration of the 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 June 14,2000. Prior to performing any such
additional construction and Post Construction phase services the Construction Manager
shall receive the advance approval of the Owner for such additional services by way of
amendment to this agreement. If such additional services 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 basis equal to one and eight-
tenths(1.80)times the basic labor rate inclusive of all overhead and profit. The basic labor
rate is attached as Exhibit 1. Additional reimbursable expenses shall be paid at the actual
costs of additional expenses times an overhead factor of one hundred fifteen percent(115%)
(actual costs times 1.15).
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 Construction Manager's supervisory and administrative
personnel when stationed at the site or home office personnel performing the
duties of Construction Supervisor (including Project Executive), Estimating,
Scheduling, Purchasing, Accounting, Cost Control and Safety.
.2 Wages and salaries of the Construction Manager's supervisory and administrative
personnel engaged at factories, workshops or on the road 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,
contributions, assessments, and benefits required by law or collective bargaining
agreements, and for personnel not covered by such agreements the Construction
Manager's 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 5.1.1.1 through 5.1.1.2.
.4 Costs to support the Construction Manager on the Project:
Field Office Rental First Aid
Field Office Move in/Set up Bottled Water
Field Office Maintenance/Repair Communication Equip.
Field Office Utilities Computer Cost
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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 Insurance
Refer to Exhibit 2 for estimated and anticipated amounts of the above.
5.1.2 The Construction Manager's Fee shall 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 are guaranteed by the Construction Manager not to exceed the amount
provided in Amendments to this agreement,subject to additions and deductions by changes
in the Work as provided in the Contract Documents. Such maximum sum as adjusted by
approved Changes in the Work is referred to in the Contract Documents as the Guaranteed
Maximum Price.
Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by
the Construction Manager without reimbursement by the Owner.
5.2.2 If, upon completion of the Project, the Actual Cost of the Work plus the
Construction Manager's Fee is less than the Guaranteed Maximum Price as set forth herein
and as adjusted by Change Orders and less the amount of the Owner's contingency, the
Owner shall pay the Construction Manager an amount equal to twenty-five percent(25%)of
such savings 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 execution of Amendments to this agreement maybe 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
14
prior consent on the basis of cost plus a fee), the terms "cost" and "fee" as used in Clause
7.3.3.3 of the General Conditions and the terms "costs" and "a reasonable allowance for
overhead and profit"as used in Subparagraph 7.3.6 of the General Conditions shall have the
meanings assigned to them in that document and shall not be modified 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 Subcontracts.
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 rates
not higher than those customarily paid at the place of the Project except with prior consent
of the Owner. The Cost of the Work 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 agreements of construction
workers directly employed by the Construction Manager to perform the
construction of the Work at the site or,with the Owner's agreement,at off-site
workshops.
6.1.3 SUBCONTRACT COSTS
Payments made by the Construction Manager 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 transportation,of materials and equipment incorporated or to be
incorporated in the completed construction.
.2 Costs of materials described in 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 materials, if any, shall be handed over to the
Owner at the completion of the Work or, at the Owner's option, shall be sold
by the Construction Manager; amounts realized, if any, from such sales shall
be credited to the Owner as a deduction from the Cost of the Work.
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6.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT,TEMPORARY FACILITIES
AND RELATED ITEMS
.1 Costs, including transportation, installation, maintenance, dismantling and
removal of materials, supplies, temporary facilities, Project vehicles,
machinery, equipment, and hand tools not customarily owned by the
construction workers,which are provided by the Construction Manager at 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 retained
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 customarily owned by the construction workers,which are provided by the
Construction Manager at the site, whether rented from the Construction
Manager or others,and costs of transportation,installation,minor repairs and
replacements, dismantling and removal thereof. Rates and quantities of
equipment rented shall be subject to the Omer's prior approval.
.3 Costs of removal of debris from the site.
6.1.6 MISCELLANEOUS COSTS
.1 That portion directly attributable to this Contract of premiums for the
Construction Manager's Payment or Performance bonds, if required.
.2 Sales, use or similar taxes imposed by a governmental authority which are
related to the Work and for which the Construction Manager is liable.
.3 Royalties and license fees paid 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 patent or other intellectual property rights arising
from such requirement by the Contract Documents; payments made in
accordance with legal judgments against the Construction Manager resulting
from such suits or claims and payments of settlements made with the Owner's
consent;provided, however,that such costs of legal defenses,judgments and
settlements shall not be included in the calculation of the Construction
Manager's Fee or the Guaranteed Maximum Price and provided that such
royalties, fees and costs are not excluded by the last sentence of
Subparagraph 3.17.1 of the General Conditions or other provisions of the
Contract Documents.
.4 Deposits lost for causes other than the Construction Manager's negligence or
failure to fulfill a specific responsibility to the Owner set forth in this
Agreement.
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.5 Legal, mediation and arbitration costs,other than those arising from disputes
solely between the Owner and Construction Manager, reasonably incurred by
the Construction Manager in the performance of the Work and with the
Owner's written permission, which permission shall not be unreasonably be
withheld.
.6 Reproduction costs and associated postage and shipping costs.
.7 Advertising expenses required to comply with public bidding laws or required
for local business outreach programs.
.8 Coordination of testing laboratories for tests required by the Contract
Documents,except those related to nonconforming Work other than forwhich
payment is permitted by Clause 6.1.8.2.
.9 Fees and assessments for the building permit and other permits, licenses,
and inspections for which the Construction Manager is required 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 in advance in writing by the Owner.
6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Subparagraph 6.1.1 which are
incurred by the Construction Manager:
.1 In taking action to prevent threatened damage, injury or loss in case of an
emergency affecting the safety of persons and property, as provided in
Paragraph 10.3 of the General Conditions.
.2 In repairing or correcting damaged or nonconforming Work executed by the
Construction Manager or the Construction Manager's Subcontractors 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 Construction Manager or the
Construction Manager's foremen, engineers or superintendents, or other
supervisory, administrative or managerial personnel of the Construction
Manager,or the failure of the Construction Manager's personnel to supervise
adequately the Work of the Subcontractors or suppliers,and only to the extent
that the cost of repair or correction is not recovered by the Construction
Manager from insurance, Subcontractors or suppliers.
6.1.9 The costs described in Subparagraphs 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 specifically excluded by the provisions of Paragraph 6.2.
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6.2 COSTS NOT TO BE REIMBURSED
6.2.1 The Cost of the Work shall not include and the Owner shall not be required to pay
for any of the following, which list shall not constitute a limitation
.1 Salaries and other compensation of the Construction Manager's personnel
stationed at the Construction Manager's principal office or offices 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 Manager's principal office and offices other than
the site office except as specifically provided in Paragraphs 5.1 and 6.1.
.3 Overhead and general expenses, except as may be expressly included in
Paragraphs 5.1 and 6.1.
.4 The Construction Manager's capital expenses, including interest on the
Construction Manager's capital employed for the Work.
.5 Rental costs of machinery and equipment, except as specifically provided in
Subparagraph6.1.5.2.
6. Except as provided in Clause 6.1.8.2, costs due to the negligence ofthe
Construction Manager or to the failure of the Construction Manager 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 described 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 keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this Contract; the
accounting and control systems shall be satisfactory to the Owner. The Owner and the
Owner's accountants shall be afforded access to the Construction Manager's records,
books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders,
vouchers, memoranda and other data relating 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.
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.
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� r
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.
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 Managers
Fee; plus (3) payrolls for the period covered by the present Application for Payment.
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.
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. j
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.
.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.
7.1.9 Except 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;
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.
20
Such examinations,audits and verifications, if required by the Owner,will be performed by
the Owner's accountants acting in the sole interest ofthe Owner.
7.2 FINAL PAYMENT
7.2.1 Final payment shall be made by 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 Manager 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. 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 9.41 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.
21
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
8.1.1 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 kbnager'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 insurance
coverage shall be written on an occurrence basis.
22
a. Commercial General Liability $2,000,000 General Agregate
Limit (other than
Products-completed
Operations)
$2,000,000 Products-Completed
Operations
Aggregate Limit
$1,000,000 Personal and
Advertising
Liability
$1,000,000 Each Occurrence
Limit
$1,000,000 Fire Legal
Liability
$10,000 Medical Expense
Limit (each person)
$1,000,00 Employee Benefit
Liability
b. Business Automobile Liability $1,000,000 Bodilylnjury
anWoperty Damage
Combined Single Limit
c. Excess Umbrella Liability Miimum of$40,000,000
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 specifications, or(2)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. 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.
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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 Owner, then such fees
shall be reimbursable to the Construction Manager as a Cost of the Work pursuant to
Article 6; subject however, to the Guaranteed Maximum Price, if one is established..
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.
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.
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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.
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.
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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.
9.3.7 GENERAL CONDITIONS FOR THE CONSTRUCTION PHASE
For the Construction Phase, the General Conditions of the Contract shall be 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, as attached
hereto and incorporated herein by reference. For the Preconstruction Phase,or in the event
that the preconstruction and construction phases proceed concurrently,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 tem"Contractor"
as used in the 1987 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 AIA Document A201, 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 fide 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 sensory, mental or physical handicap. Any violation of
this provision shall be considered a violation of a material provision of this Agreement.
26
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
terms 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.
27
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 bllowing 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 witing 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 Kintop
City of Elgin President
150 Dexter Court M.I. C. Inc.
Elgin, Illinois 60120-5555 1344 Hollister Drive
E-Mail: Moller r(a cityofelgin orq Batavia, IL 60510
e-mail: Dennis @micconstruction.com
ARTICLE 10
TERMINATION OR SUSPENSION
28
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 anytime
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.
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.
29
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.
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. In such event the Construction
Manager shall also 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.
30
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 3—lgd—ay of _ , A.D., 2002
ATTEST: Tie City of Elgin
By: By:
City Clerk CitVanager
(Seal)
For the CONSTRUCTION MANAGER
Dated this I day of �d`Z�O��v- A. D., 2002.
ATTEST M.I.C. Inc.
Secretary
(SEAL)
31
FEB-001-2001 FRI 06:05 PM FISCAL SERVICES 'r.;X, NO. 1 847 931 5622 P. 31/38
June i'l, ?OCR
j1,1-1)IT 10!"
Thcse Conditions 1weld
Conc.-iict for cons triic tZion, 1987 ceition• of,,-.,
i.1.2 RcVise tlnc last scntcnc,-of this
suboa'm,,T:p;j t o read Ach!!:cc and Cons- ict!On faslzi I kL-h, however, be entitled to per n n,,Z,,rlorrr,.'cc and
criro7cei-, m, of u()livallOnS Under the othci,,5 contract
intended to facilitate performance of iti duties."
1.3.1 \JLi the n I
following he r..,
of intil line after"thc author ot";-Itm and": "O'.V net
leas art,:".
2.2.1 Dcletc this subparagraph in its entirety.
2.2.2 Revise this subparagrauh to read "The Owner shall funnish sur,,-,ys de-scribin.- physical
characteristics, legal limit-aticris and utility locations for the 5I.,z-of the Project,soil reports and
subsurface investigations,and a le-e2l descri.ocion ofz.ht izit-.-
2.2.4 Dclue the period at the end of this PaT�Mgh 16r-0 rdtl N-. FrOlowinQ- iFle ronctrksurien
Manager shall be entitled to rely upon the accU%cy aind carrip'--tcriess uierto-r."
Dcicte the third scr.tcncc and sijb5tituc the folio c the., for:
wi 11g -1 0 a e "In such case,
con-ecting such deficl-mcies shall be ci,2(acLo against the cost of
a 1,ainsc the Guaranteed INfaximum Pricc." Delete the last
sentence and substitute the following in place therefor: "If tht cost of correcting such deficiencies
exceeds tl-ic unpaid balarec of the Guaranteed ;.,,f - a Ics
2-11MUrn Price.'Ihc Commiction INIanager shalt p.v the
difference to the Owner."-
3.3.3 Add the following at the bet-i
a 'Miling Of this sentence_ "ExCtpt as miy be approvcd
Owner and the Architect,".
in writing by the
3.6.1 Delete this siibparagraph and suDstitwc the folio,--ving in place thcrefor- "The Conscruction
Manager shall pay all sales,
consumer,us:and othe-, an
s; tar xcts for the Work or Portions thereof
provided by the Construction MaJI3.0cr which arc le-ally enacted at the time the Guaranteed
Price is established." tMaximurn
3.12.8 Delete the period 0 at tF.,-end of the last sentence fIce in thlis paragrzph and add the followiner.
except for any such errors or omissions a
Issions which are within the j\rcllijecj,S v3rurory or Customary de-s-10
3.15.2 At the end OF Ll-lis paragraph Met, "10 the Construction Managcr" and SLILIS11cutc the followilla
Its Place: "against the Guaranteed iMaximurn pr, in
Ice."
3.1 S.I (Z1_-!)laCc the entire Parlgrmph with the foil To the fullest zt:mcnt perin 1-ted by law. the
ConsIrtiction 'Manager waives 4:1 1
iv,'s any r
I 91�t of contribution a. -iir ss
tile Ovvncr,Owner's Reorcic-it.2tivc. A"r-h- , -st 2nd shall Hiddranify and hold 11, - 1 -
. !!�,_Ct. i\ cons-.,itants,aiA 2"em's 211d employees of any
-rc
Of 01cm from and against cilims, damn-cs,
losscs; zzrd exc)erses. !-:-.clud'n-but not Nmit,-d to attorney's
FE3-09-2001 FRI 06:05 Pit FISCAL Z)C,, ICES F?,X 1110. 1 847 931 5622 P. 32/38
June 14
tj,
ICC�, aflSlnQ Out Of 0;r�jL cm fTCrrt Ur in C0:1^eCt:On '�:Ch the ptrforTan_c Of lt,C ��OrK,17(0'/Sd 1 !h C
>d " r
an;i scclt cl<lirn, damage, loss, or expcn;e (ti:csc arr coilec!ivc:y rciec.� :u 3s claims") Is atL-t utablc .o
botliiy mjtC�, sic:cness,disease or death or to injury to or&n(ruc:ion of tangibie property (other ti?ari the
l.'vrrk itself) including loss of us
resulting therefrom and is caused in : `alc or in par. by any nc.t;li;e t
aft Of O*it15$IGtI O! COntf'.ct0i, any subcartCactor, anyone '-'r'ho-fir ?cts any of them ma'/ be kabic,
regardless of whecher or roc it is cau,cd in part by a pa,-L,; index .niflcd her::-under. Such obligation shall
not be constfLCd to I'.es'• ' aClld9c, Or reduce other ri,11G or o'alic_=10ni Of:!ndcnlnity which would
OthCr`•vise exist as to a party or person described in this Contract.-
3.I S4 Add the fol!ow-ino new Subpar"-graph: "The O�:�rlrr sha!1 cause _ny otl•er contractor who may
havc a contraCt With the (mow--'r to pertorn construction or initailation Work:n the areas .vhere Wort-,
will be performed under the OwneriCor._truction Manager Agrte:acnt, to a ec to indemnity the Ow-ncr
and Construction iAanager aid hold then harmless from all cla;ms for bodily injury and property
damage chat may arise from that contractors operations. Such pro"131ons shall be in a form Stttisfactary
to the Col?sttvction hianagcr."
4.1.4 17eiete in its entirety.
4.2.4 Dciete the firs,sent:_`nce.
4.2.7 Revise the first sentcncc to read as follows: "The !`rchitect shall review and approve or take other
appropriate action upon the Construction ivfanacrer's submittals such as shop drawings, product data and
samples For conformance with Information given and the dcsi m concept ezpresscd in the Contract
Documents. The Architect shall carefully study and compare shop drzv-.ings and other information
furnished by the Construction Manager with the Contract Documents and shall at once report to the
Construction vlanavcr errors, inconsistencies or omissions disco,urt_d."
4.2.12 Tn line six,insert a pCnod(.)after".-.psTT:zlity to either." llcle:r: "al?d shall not be liable for the
result of any,ntcrpretation or decision rendered in good faith i:, such capacity."
4.3.2 Delete all references to arbitration in this paragraph.
4.14 In line twp,delete "includip5 arbitration"_
4.4.4 Revisit the latter part of the first sentence to rearm as follw s: "which decision sha11 not be final :find
binding on the parties."
4.5 Delete this paragraph and its subparagraphs in tht;ir entirety.
5.3.1 In the last sentcncc substitute "Ownc_r".for"ACchiteot"-:•
7.3 Change "Construction Change Directive" to "Construction Change authorization"in this paragraph
and its subparagraphs.
7.3.2 Revise the first sertcncc 10 read: "A Construction Chan;z Aut'horiz,cian in the form attached
hereto as Exhibit SGC-A shall he used in the absence of!otall a;-cement on the terms of a Change Order
. � r
FEB-09-2001 FRI 06:06 PM FISCAL SERVICES FAX N0. 1 847 931 5622 P. 33/38
Jtmc 14, 2000
7.3.3.3 Rcvi-sc this phrase to read as follows: "(1) the Cost of the Wort: as defined in ArticIt 6 of the
Owncr/Constriction Manager Agreement for the Change in the Work; (2)an overhead factor of 6,ght
perccrut(8%), plus (3)the Construction Manager's Fee as described in Subparagraph 5.1.2 oNhe
Owncr./Construction tManager Agreement.
8.3.1 hcplace the paragraph with the following: "83.1 If the Construction Manager is tle'•ayed 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 changes ordered in the Work by the
Owner,or by acts of God,or by strikes or by other causes beyond the Construction i✓lanaeer'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 construed as
being Ncyond the control of the Construction Manager." For the purposes of this paragraph an'Act of
God' means an earthquake, flood,cloudburst, tornado, or other phenomena 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
therefrom. No extension of tirue will be granted for any delay or suspension of Work clue to the fault of
the Construction Managcr. No extension of tirttc on account of a delay due to unforeseen causes will be
granted if written application therefore is not filed by the Constraction Manager with the Owner and the
Architect setting forth the reasons which the Construction Mana;cr believes will justify the approval of
its request."
9_l.1 Ades the following to the end of this paragraph: "Wherever the term"Contract Sum" appears
throughout the Contract Documents it shall be deemed to mean"Guaranteed Maximum Price".
9.6.t Add the following after"after the Architect bas issued a Certificate for Payment": "or within
fifteen(I5)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 in its 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 Nvaste, including but not limited to,". In addition delete the last two(2)sentences of this
par;.it raph 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": °ha.ardour, including without limitation,".
In addition, dcl.ae everything in the first sentence after"including loss of use resulting therefrom".
10.2 Add the following additional subparagraph as 10.2.8:,the performsnee of the foregoing services
by the Construction Manager shall not relieve the subcontractors of their responsibilities for the safety of
persons and property and for compliance with all Federal,State and local statutes, rules, ree uhtions and
orders of any 6ovemmental authority applicable to the conduct of the Work."
3
FEB-09-2001 FRI 06:07 PM FISCAL SERVICES FAX N0. 1 847 931 5622 P. 34/38
rune 14, 2000
1 1.1.1 Dcletc his paragraph in its entirety.
11-12 Delete this paragraph in its entirety.
1 1.1.4 Add the follow;1"D as an additional ara r
lanb'u�,e in 1!1 subcontracts and pr:rchase ordc s for the 1rc5 2r rt ndion L'1 to be Shall
,
insureds"on a)) liability insuruncc ofnot less th,n. hall include
named�s addi60131
ST_ �7ZITOIZY WORKERS' CO(�1PE;`1SA1'ION IrI,IP(,OXERS' L1AD(LfI'Y not
!ess than'�100,000)and co�-erage under the United States Lorrgsltore _�
Harbor Workers' Compensation Act, and Broad nt`a's and
Fonn All States Co�rilen's
C-O MERCIAL GENERAL L1A$1I ITY T o be provided on an"occu rate.
basis, ti"�th Blanket&e to inctttde explosion, collapse and uadrrb'round hazards
(XCU),Dhn);ct Contrachal,Products, Ind<pendcnt Contractors, Cbm 1
Operations, Personal Injury, and Frnployecs as additional insured. p<t�tl
RODI`WURY LIMITS
I. MIITS PROPERTY DAMAGE
$1,000.000 each occurrence
52,000,000 a� 51,000,000 each Occurrence
„resat $2,000,000 aggrtgarc
PE=R--- S—N"C[- N)U1Z�gITS
$1,000,000 each occt►rrrnce
$1,000,000 aggrebate
smart ate shall a 22'. to this oro'cct onl (aggregate
Projects)and must be dentified as such on he eifc tetofinicludcother
AU7_OMOAILI;LIAg1
LITY including owned.non-oIYned, and hired
arttomobiles- Automobiles of subcontractors and material suppliers same insurance rcquiremCnts. mutt meet the
BODILY INIURY LINQTS
LIMITS PROPERTY DAMAGE
$1,000,000 Each Person
$1,000,000 Fach Occurrence
$1,000,000 Each Occurrence
EXCESS UMBRELLA LI
Liabili ABIL ITy to provide insurance in excess of Employer's
ry, to Genera)Liabili
required hereunder. ty, and Automobile Liability policies
$5,000,000 each occurrence anal 55,000,000 general policy aggregate
11.3.1.1 In line four(4)after "collapse- add~flood".
f1
e
M.I.C., Inc.
SPECIALISTS IN COMMERCIAL & INDUSTRIAL CONTRACTING
EXHIBIT A
KEY PERSONNEL COSTS
EMPLOYEE JOB DESCRIPTION. HOURLY RATE
DENNIS KINTOP PROJECT EXECUTIVE $85,00
TRAVIS WOOD SITE SUPERINTENDENT $60.00
RON WARD PROJECT MANAGER $60.00
SUSAN DORNBOUSCH PAYOUTS &WAIVERS $45:00
TAUNYA KENNY SHOP DRAWINGS-SUPPORT $40.00
BETSY VARTANIAN SUPPORT STAFF $21.00
1344 HOLLISTER DRIVE BATAVIA, IL 60510 630/879-6775 FAX 630/879-6796
FEB-09-2001 FRI 06:08 PH FISCAL SERVICES FAX N0. 1 847 931 5822 P. 36/38
June 14, 2000
14.1.1.5 Uelety this subparagraph in its Lmirety.
14.1.2 To Iine four(4) after"payment for Work executed" acrd"its fee earned to the d3te of termination".
14.33 in the first line delcle "may" and substitute in its place "Will".
l-rtd of Supplementary General Conditions
6
t
EXHIBIT B
PROJECT MILESTONES
BIDDING and NEGOTIATIONS NOVEMBER 2002
CONSTRUCTION BEGINS DECEMBER 2002
PROJECT SUBSTANTIALLY COMPLETE AUGUST 2003
PROJECT FINAL ACCEPTANCE OCTOBER 2003
,R,AraR� CERTIFICATE OF LIABILITY INSURANC�CZN 1 DA03/2M2/ol
06DUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
Buttrey-Wulff-Mamminga 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: Bituminous Casualty Co
INSURER B:
M.I.C. , Inc. INSURER C:
1344 Hollister Drive INSURER D:
Batavia IL 60510
INSURER E:
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR 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.
NOR EXPIRATION
LTR TYPE OF INSURANCE POLICY NUMBER DATE MMADD/YY DATEYMMIDD/Ylf LIMITS
GENERAL LIABILITY EACH OCCURRENCE $ 1000000.
A X COMMERCIAL GENERAL LIABILITY CLP2328152B 08/27/00 08/27/01 FIRE DAMAGE(Any one fire) $ 100000.
CLAIMS MADE D OCCUR MED EXP(Any one person) $ 10000.
PERSONAL&ADV INJURY $ 1000000.
GENERAL AGGREGATE s2000000.
GEMTL AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPIOP AGG $2000000.
POLICY X JPERC LOC
AUTOMOBILE LIABILITY
COMBINED SINGLE LIMIT $ 1000000.
A X ANY AUTO CAP3094769B 08/27/00 08/27/01 (Ea accident)
ALL OWNED AUTOS
BODILY INJURY f
SCHEDULED AUTOS (Per Person)
X MIMED AUTOS
BODILY INJURY f
X NON-OWNED AUTOS (Per accident)
PROPERTY DAMAGE f
(Per accident)
•ARAGE LIABILITY AUTO ONLY-EA ACCIDENT f
ANY AUTO EA ACC f
OTHER THAN
AUTO ONLY: AGG f
—A EXCESS LIABILITY EACH OCCURRENCE f
A X OCCUR F—]CLAIMSMADE CUP2532562B 08/27/00 08/27/01 AGGREGATE $ 5000000.
f
H DEDUCTIBLE
f
X RETENTION so
S
WORKERS COMPENSATION AND X I TORY LIMITS ER
A EMPLOYERS LIABILITY WC3094767B 08/27/00 08/27/01 E.L.EACH ACCIDENT f 500000.
El-DISEASE-EAEMPL0 $500000.
E.L.DISEASE-POLICYUMIT f 500000.
OTHER
DESCWPTION OF OPERATIO NSA LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENUSPECIAL PROVISIONS
Job: Riverwalk, Elgin, IL Primary & NonContributory Additional Insureds:
City of Elgin - owner; chcock Design Group - Landscape Architect. GL &
WC Policies Include A Waiver Of Subrogation. OCP Policy Named Insured:
City of Elgin& Hitchcock Design Group, 150 Dexter Court, Elgin, IL 60120.
OCP Liability Limit $1,000,000/$2,000,000.
CERTIFICATE HOLDER I Y tADDITIONAL INSURED;INSURER LETTER: A CANCELLATION
ELGCI-1 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO SO SHALL
City of Elgin IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR
150 Dexter Court REPRESENTATIVES. _ W,;,
Elgin IL 60120 I"
John J. Wul
ACORD 26-S(7/97) ION 1988
KRIM — •
Compensation
M.I.C., Inc. construction management fee is detailed below for you review.
This fee is based on a $3,995,000.00 job with a twelve-month duration
Pre-Construction Services $ 41,250.00
Home Office /OH + P $ 139,825.00
General Conditions $ 212.060.00*
FOR A TOTAL FEE $ 393,135.00
*The General Conditions (see page #2) are an allowance, that is a "not to
exceed" price. Any cost savings as a whole will be credited back to the owner
with the contractor receiving 25% of said savings.
Assumes a September 2002 start date with final completion approximately, June
2003. Actual time spent would affect General Conditions. I have included
Travis's cost in General Conditions, so any less time spent would be credited
back to the owner. We may not need "Full-time" management, although that is
included in my Total Fee.
With in reason a delay in start will not affect costs. A delay during construction
will affect costs and would be charged at cost.
For M.I.C, Inc. to add bond add 1.2% of costs. This will be charged at cost if
required.
M.I.C.,Inc.
1344 Hollister Dr.
Batavia,IL 60510
(630)879-6775
(630)879-6796 Fax
www.micconstruction.com
General Conditions
SERVICES PROVIDED BY M.I.C., INC.
PERSONNEL ON-SITE-1800 hrs. x $50.00 X $80,000
MOBILIZATION $101000
JOBSITE TRAILER X $51000
JOBSITE COMMUNICATION/EQUIPMENT X $10,000
STORAGE BOX $21000
TEMPORARY TOILETS X $3,060
TEMPORARY WATER X $11500
TEMPORARY ELECTRIC X $5,000
TEMPORARY GAS NIC $0
TEMPORARY TELEPHONE X $31000
FENCING X $7,500
TEMPORARY ROADS NIC $0
PROTECTION /SAFETY X $10,000
DUMPSTERS X $51000
GENERAL CLEAN UP X $5,000
FINAL CLEANING X $3,500
STREET CLEANING X $51000
JOB SIGN X $500
PROGRESS PHOTO X $2500
SAMPLES/TESTING NIC $0
SURVEY AND LAYOUT X $20,000
REPRODUCTION COSTS X $3,500
LIABILITY INSURANCE X INC
AS-BUILT DRAWINGS X INC
MATERIAL ALLOWANCE X $101000
LABOR ALLOWANCE X $20,000
POSTAG E X INC
BOND NIC $0
TOTAL $212,060
X-Included in Proposed Fee
NIC-Excluded from Proposal Fee Page 2
INC-Included in Proposed Fee
a City of Elgin Agenda Item No. G
August 9, 2002
RECREATIONAL LEISURE
ANO CULTURAL OPPORTUNITES
FAR AI 1 rIT17 FNC
TO: Mayor and Members of the City Council
FROM: Olufemi Folarin, Interim City Manager
SUBJECT: RFP 02-076 - 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 provide 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 I Festival Park
Riverfront/Center City Master Plan Project .
BACKGROUND
On June 13, 2001, the City Council approved a contract with the
architectural firm, Hitchcock Design Group, to design the Phase I
Festival Park Riverfront/Center City Project and provide limited
construction phase services.
The Phase I Festival Park plans and the bid specifications are
complete. The scope of work under Phase I include floodplain and
compensatory storage excavation related to the Par Townhome
development and the development of a Riverfront promenade and
shoreline stabilization. Future phases of the Festival Park will
include a destination play area, restroom and equipment storage
facilities and expanded utility connections for festivals and major
events .
It is anticipated that excavation related costs will be $3 . 0
million and the promenade and shoreline construction will cost $1 . 5
million.
The original budget estimates included an allowance for
Construction Management Services. Following the completion of the
plans and specifications, a Request for Qualifications was
advertised in the Courier News on June 14, 2002 for construction
managers. Six firms responded to the RFQ, including three Elgin
firms.
Construction Management Service Contract
August 9, 2002
Page 2
The following firms responded to the RFQ:
1 . I .H.C. Construction Company, Inc.
2 . M. I .C. , Inc.
3 . LAMP, Inc.
4 . Jirsa Construction Company
5 . V3 Construction Group
6 . Raynor, Benson, Inc.
Two firms were selected from the above mentioned firms as finalists
for construction manager. A review team consisting of Dave Frigo,
Bud Wilson, Dave Lawry and Ray Moller conducted the interviews with
I .H.C. and M. I .C. Both firms are qualified construction managers.
The review team concluded that M. I .C. should be selected as the
construction manager for the Festival Park Phase I project due to
their performance on the recently completed Phase I Riverfront
Project and their extensive experience with riverfront
redevelopment projects in Batavia, Dundee and Elgin.
The three phases of the construction manager contract are:
Bidding/Contract Award (pre-construction) ; Construction Phase and
Post Construction Phase. In the pre-construction 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. will 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 CM 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 used to 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.
4
Construction Management Service Contract
August 9, 2002
[ Page 3
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, must adhere to the City' s established
change order procedure.
An incentive clause is also included within the subject contract .
The CM shares 25 percent (25%) of all remaining dollars below the
GMP.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
Project Management Team (PMT) and the Riverfront Action Committee
(RAC) .
�INANCIAL IMPACT
The 2002 budget for this project is $2, 470, 000 . To date,
V $766, 566 . 60 has already been charged to this project . The cost for
the preconstruction services, construction phase and post
construction phase services equals $393, 135 . 00 .
The City is anticipating a $1, 000, 000 grant from DCCA to defray
costs related to compensatory storage excavation.
Sufficient funds exist within account number 275-0000-791 . 92-35
($1, 870, 000 budgeted, $1, 103, 440 available) and 260-0000-791 .92-32,
($600, 000 budgeted and available) project number 039520 for the
contract .
LEGAL IMPACT
A 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 recommendations .
• Construction Management Service Contract
February 28th, 2001
Page 4
RECOMMENDATION
It is recommended that the City Council approve the subject
contract with M. I .C. in the amount of $393 , 135 . 00 for the pre-
construction, and direct staff to prepare the contract documents.
Respectfully submitted,
Olu emi ari '
Interi ager
RHM:j s