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03-77 Resolution No. 03-77 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH SHALES McNUTT, L.L. C. FOR THE NEW PU:LIC WORKS FACILITY BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David M. Dorgan, City Man.ger, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute an agreement on behalf of the City of E gin with Shales McNutt, L.L.C. for construction management serv' ces for the new public works facility, a copy of which is att-ched hereto and made a part hereof by reference . s/ Ed Schock Ed Sch.ck, Mayor Presented: April 2 , 2003 Adopted: April 2 , 2003 Omnibus Vote : Yeas : 5 Nays : 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk K C Draft 3/17/03 AGREEMENT THIS AGREEMENT, made and entered into thi- ?-ff day of /' ( L , 2003 , by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to . s "CITY" ) and SHALES McNUTT, L.L.C. , an Illinois limited liabi ity company(hereinafter referred to as the "CONSTRUCTION MANAGER" ) . WHEREAS, the City owns the existing indu-trial building at 1900 Holmes Road, Elgin, Kane County, Illinoi- (hereinafter referred to as the "Subject Property) ; and WHEREAS, the City desires to redesign an. retrofit the existing industrial building on the Subject Prope ty into the City' s New Public Works Facility as more particu arly described in the City' s request for proposals for Constr ction Manager for New Public Works Facility Project issued January 29, 2003 , revised February 7, 2003 (such redesign and re rofit of the existing industrial building on the Subject Prope ty into the City' s New Public Works Facility is hereinafter referred to as the "Project" ) ; and WHEREAS, the City desires to engage the CONSTRUCTION MANAGER to furnish certain construction management services in connection with the Project; and WHEREAS, the CONSTRUCTION MANAGER rep esents that it is in compliance with Illinois statutes re ating to professional registration and qualifications of indi iduals to perform such construction manager services, as may b= required from time to time, and has the necessary expertise and the experience to furnish such construction manager servi, es upon the terms and conditions as set forth hereinbelow. NOW, THEREFORE, it is hereby agreed by a d between the CITY and the CONSTRUCTION MANAGER that the CITY does hereby retain the CONSTRUCTION MANAGER to act for and represent it in the construction management services relatini; to the Project as set forth herein subject to the following t-rms and conditions and stipulations : 1. SCOPE OF SERVICES A. All work hereunder shall b: performed under the direction of the Director of P 'blic Works of the CITY, herein after referred to as the "DIRECTOR" . B. The CONSTRUCTION MANAGER shall act as the CONSTRUCTION MANAGER for the Project for the CITY and shall provide to the CITY the services for .he Project as described in Exhibit A attached hereto. 2 . PROGRESS REPORTS A. A detailed project schedule f.r the Project will be developed by the CONSTRUCTI•N MANAGER within a reasonable time after the notic- to proceed under this agreement and upon the prior ap•roval by the CITY, the schedule will be included a_ Exhibit B to this agreement . Progress will be ecorded on the project schedule and submitted monthly as a component of the Status Report described in B. b=low. B. The CONSTRUCTION MANAGER will submit to the Director monthly a Status Report keyed to the Project Schedule. A brief narrative will be provided identifying progress, findings and outstand'ng issues . 3 . WORK PRODUCTS All work products prepared by th- CONSTRUCTION MANAGER pursuant hereto including, but nom limited to, reports, designs, calculations, work drawings, studies, photographs, models and recommendations shall be 'he property of the CITY and shall be delivered to the CI Y upon request of the DIRECTOR provided, however, that tie CONSTRUCTION MANAGER may retain copies of such work pr.ducts for its records . Such work products are not intender. or represented to be suitable for reuse by the CITY o any extension to the PROJECT or on any other project, an. such reuse shall be at the sole risk of the CITY witho t liability or legal exposure to the CONSTRUCTION MANAGER 4 . PAYMENTS TO THE CONSTRUCTION MANAGER A. For services provided, the CON.TRUCTION MANAGER shall be reimbursed the sum of 5 32% of all costs of construction for the Project, hich is the total cost to the CITY of all elements of the Project designed or specified by the architect, pr.vided, however, the fee to the CONSTRUCTION MANAGER s all in no event exceed the sum of $277, 000 unless subs antial modifications to the Scope of Work are author' zed in writing by the CITY. This fee to the CONS RUCTION MANAGER is to include all services described in Exhibit A, "Scope of Services to be Provided" , and includes the cost of site supervisor, project manager, ontract administrator, temporary office in the building, temporary construction office telephon=, survey/layout, site safety and project photogra.hs, and includes any subcontractors engaged by th- CONSTRUCTION MANAGER. The fee paid to the CONSTRU4TION MANAGER does not include overall project costs .hat typically are not a part of individual trade p_ckages and are often included in "General Conditions" costs . This would include such costs as clean-u. or dumpsters . These - 2 - items will be arranged by the CONSTRUCTION MANAGER and the costs billed to the CITY se•arately over and above the CONSTRUCTION MANAGER' S 5 . 32° fee described above. B. Reimbursable expenses incurre• by the CONSTRUCTION MANAGER, such as the cost of pl-n reproduction, will be billed separately to the CITY a d passed along with no mark up. C. The CITY shall make periodic payments to the CONSTRUCTION MANAGER based upon actual progress within thirty (30) days after receipt and approval of an invoice by the Director. 5. INVOICES A. The CONSTRUCTION MANAGER shall submit invoices in a format approved by the CITY. Progress reports (2B above) will be included with al payment requests . B. The CONSTRUCTION MANAGER sha 1 maintain usual and customary records showing tie time and services performed and costs incurred. he CONSTRUCTION MANAGER shall permit the authorized representative of the CITY to inspect and audit all daua and records of the CONSTRUCTION MANAGER for work done under this Agreement . The CONSTRUCTION AGER shall make these records available at reasonal•le times during the Agreement period, and for a ye:r after termination of this Agreement . 6 . TERMINATION OF AGREEMENT Notwithstanding any other provisio hereof, the CITY may terminate this Agreement at any tim- upon fifteen (15) days prior written notice to the CONST CTION MANAGER. In the event that this Agreement is so term nated, the CONSTRUCTION MANAGER shall be paid for services actually performed and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the amount set forth under Paragraph 4 aoove . If the Project is abandoned by the CITY for more than ninety (90) consecutive days or if the CITY fails to make payments to the CONSTRUCTION MANAGER within thirty (30) days after the time required, then the CONSTRUCTION MANAGER may terminate this agreement upon written notice to the CITY. 7 . TERM This Agreement shall become effect ve as of the date the CONSTRUCTION MANAGER is given a 'otice to proceed and, unless terminated for cause or purs ant to Section 6, shall be deemed concluded on the date that all of the CONSTRUCTION MANAGER' s work required under this agreement is completed. - 3 - A determination of completion shall got constitute a waiver of any rights or claims which .he CITY may have or thereafter acquire with respect to any term or provision of the Agreement . 8 . NOTICE OF CLAIM If the CONSTRUCTION MANAGER wishes to make a claim for additional compensation as a result of action taken by the CITY, the CONSTRUCTION MANAGER shall give written notice of his claim within 15 days after occirrence of such action. No claim for additional compensation shall be valid unless so made. Any changes in the CON'.TRUCTION MANAGER' s fee shall be valid only to the extent that such changes are included in writing signed by the CITY and the CONSTRUCTION MANAGER. Regardless of the dec sion of the DIRECTOR relative to a claim submitted by t e CONSTRUCTION MANAGER, all work required under this Agreem=nt as determined by the DIRECTOR shall proceed without inter uption. 9 . BREACH OF CONTRACT If either party violates or breaches any term of this Agreement, such violation or brea' h shall be deemed to constitute a default, and the other party has the right to seek such administrative, contractu.:1 or legal remedies as may be suitable to the violation or breach; and, in addition, if either party, by reaso of any default, fails within fifteen (15) days after noti e thereof by the other party to comply with the condition- of the Agreement, the other party may terminate this Agree ent . 10 . INDEMNIFICATION To the fullest extent permitted by 1==w, CONSTRUCTION MANAGER agrees to and shall indemnify, defe d and hold harmless the CITY, its officers, employees, agents, boards and commissions from and against any =nd all claims, suits, judgments, costs, attorneys fees, d=mages or other relief, including but not limited to workers compensation claims, in any way resulting from or arising .ut of negligent actions or omissions of the CONSTRUCTION MANAGER in connection herewith, including negligence or olissions of employees or agents of the CONSTRUCTION MANAG:R arising out of the performance of this Agreement . In the event of any action against the CITY, its officers, empl.yees, agents, boards or commissions, covered by the foreg.ing duty to indemnify, defend and hold harmless such action shall be defended by legal counsel to be reasonably approved by the CITY and the CONSTRUCTION MANAGER. The provisions of this paragraph shall survive any expiration and/or termination of this agreement . - 4 - 11. NO PERSONAL LIABILITY No official, director, officer, ag=nt or employee of the CITY shall be charged personally or held contractually liable under any term or provisio of this Agreement or because of their execution, approval or attempted execution of this Agreement . 12 . INSURANCE A. Comprehensive Liability. The CONSTRUCTION MANAGER shall provide, pay for and maintain in effect, during the term of this Agreement, a policy of compreh=nsive general liability insurance written in occurrence form with limits of at least $1, 000, 000 aggregate for bodily injury and $1, 000, 000 aggregate for property damage . The CONSTRUCTION MANAGER shall del ver to the DIRECTOR a Certification of Insurance naming he CITY as additional insured. The policy shall not be modified or terminated without thirty (30) days prior ritten notice to the DIRECTOR. The Certificate of Insurance shall include the contractual obligation assumed by the CONSTRUCTION MANAGER under Article 10 entitled "Indemnification" . This insurance shall apply as primar insurance with respect to any other insurance or self-ins rance programs afforded to the CITY. There shall be no endorsement or modification of this insurance to make it exce-.s over other available insurance, alternatively, if the ins rance states that it is excess or prorate, it shall be endo' sed to be primary with respect to the CITY. B. Comprehensive Automobile Li- •ility. Comprehensive Automobile Liability Insurance overing all owned, non- owned and hired motor vehicle. written in occurrence form with limits of not less than $500, 000 per occurrence for damage to proper y. C. Combined Single Limit Policy. The requirements for insurance coverage for the gen-ral liability and auto exposures may be met with a combined single limit of $1, 000, 000 per occurrence suoject to a $1, 000, 000 aggregate. 13 . NONDISCRIMINATION In all hiring or employment made po..sible or resulting from this Agreement, there shall be no di-crimination against any employee or applicant for employmeit because of sex, age, race, color, creed, national origin marital status, of the presence of any sensory, mental or p1ysical handicap, unless - 5 - based upon a bona fide occupational •ualification, 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 apprenticesh'p. No person shall be denied or subjected to discrimination in receipt of the benefit of any serv' ces or activities made possible by or resulting from this • •reement on the grounds of sex, race, color, creed, natio al origin, age except minimum age and retirement provision-. , 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 ,greement and shall be grounds for cancellation, terminat ' on or suspension, in whole or in part, of the Agreement b the CITY. 14. ASSIGNMENT AND SUCCESSORS This Agreement and each and every portion thereof shall be binding upon the successors and the assigns of the parties hereto; provided, however, that no _ ssignment shall be made without the prior written consent of the CITY. 15. DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or s bcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the CONSTRUCTIO MANAGER shall remain liable to the CITY with respect to each and every item, condition and other provision hereof to the same extent that the CONSTRUCTION MANAGER would have .een obligated if it had done the work itself and no assignment, delegation or subcontract had been made. Any proposed subcontractor shall require the CITY' s advanced written .approval . 16 . NO CO-PARTNERSHIP OR AGENCY This agreement shall not be const ued so as to create a partnership, joint venture, emplo, ent or other agency relationship between the parties her-to. 17 . SEVERABILITY The parties intend and agreed that, if any paragraph, sub- paragraph, phrase, clause or otier provision of this Agreement, or any portion thereof, -hall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect . 18 . HEADINGS The headings of the several paragrap s of this Agreement are inserted only as a matter of conve ience and for reference - 6 - and in no way are they intended to dz.-fine, 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 interpr-tation or construction thereof . 19 . MODIFICATION OR AMENDMENT This Agreement and its attachments constitutes the entire Agreement of the parties on the su.ject matter hereof and may not be changed, modified, dischamged 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 unles. expressed in writing herein or in a duly executed amen. ent hereof, or change order as herein provided. 20 . APPLICABLE LAW This Agreement shall be deemed to ave been made in, and shall be construed in accordance wits the laws of the State of Illinois . Venue for the resolution of any disputes or the enforcement of any rights pursuant o this agreement shall be in the Circuit Court of Kane Counuy, Illinois . 21. NEWS RELEASES The CONSTRUCTION MANAGER may not issue any news releases without prior approval from the •IRECTOR, nor will the CONSTRUCTION MANAGER make public proposals developed under this Agreement without prior writ en approval from the DIRECTOR prior to said documentation becoming matters of public record. 22 . COOPERATION WITH OTHER CONSULTANTS The CONSTRUCTION MANAGER shall cooperate with any other consultants in the CITY' s employ or .:ny work associated with the PROJECT. 23 . INTERFERENCE WITH PUBLIC CONTRACTING The CONSTRUCTION MANAGER certifies hereby that it is not barred from bidding on this cont act as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid riggini, . 24. SEXUAL HARASSMENT As a condition of this contract, tie CONSTRUCTION MANAGER shall have written sexual harassmen. policies that include, at a minimum, the following information: - 7 - A. the illegality of sexual harass ent ; B. the definition of sexual harass ent under state law; C. a description of sexual harassm=nt, utilizing examples; D. the vendor' s internal complaint process including penalties; E. the legal recourse, investigati e and complaint process available through the Illinoi- Department of Human Rights, and the Illinois Human ' ights Commission; F. directions on how to contac the department and commission; G. protection against retaliation as provided by Section 6-101 of the Human Rights Act . A copy of the policies must be proviied to the Department of Human Rights upon request 775 ILCS 5 2-105 . 25 . WRITTEN COMMUNICATIONS All recommendations and other . ommunications by the CONSTRUCTION MANAGER to the DI *ECTOR and to other participants which may affect cost or time of completion, shall be made or confirmed in writing. The DIRECTOR may also require other recommendations aid communications by the CONSTRUCTION MANAGER be made or conf rmed in writing. 26 . NOTICES All notices, reports and documents required under this Agreement shall be in writing and s all be mailed by First Class Mail, postage prepaid, addressed as follows : A. As to CITY: JOHN LOETE, P.E. Director of Public Works City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to CONSTRUCTION MANAGER: John R. McNutt, P.E. Shales McNutt Construction 749 N. State Street Elgin, Illinois 60123 - 8 - IN WITNESS WHEREOF, the undersigned have placed their hands and seals upon and executed this Agreement ' n triplicate as though each copy hereof was an original and that there are no other oral agreements that have not been reduce• to writing in this statement . FOR THE CITY: FOR TH: CONSTRUCTION MANAGER: BY � � BY City M ager , Attest : ktei'914%vNV / (e City Clerk F:\Legal Dept\Agreement\Construction Mgr-Shales-PW Faciiity.doc - 9 - EXHIBIT A Scope of Services to be Provided: A.Project Scheduling We will begin working immediately to review contract documents and contracts issued to date for this project.We will meet with the City and Architect to gain a complete understanding of the project objectives and intent in terms of project approach,sequencing and priorities.We will then meet with the individual contractors to review critical items of work and long lead items so that this information may be integrated into the master project schedule.A master project schedule will b: developed using current computerized scheduling software and distributed to all team members for revie . Concurrently with the schedule development we will review and a alyze the budget requirements.This analysis will include complete scope reviews of contracts issued a d those pending,constructability review, and possibly value engineering.Value engineering is typically do e earlier in the process but we feel that even at this stage of the project there may be an opportunity to ge erate cost savings.In the event that the project is over budget,we will work with the City to identify way to modify the scope of work with minimal impact to critical components to bring the cost back into .udget. Following this schedule and budget review,we will create a final ;Iroject schedule and budget and present it to the City and Architect for final approval. B.Permits SMC will begin immediately upon notice to proceed to coordinate with all local governing agencies to be sure that construction documents have been submitted for review and approval.We will track the permit process until all formal permits have been received.Furthermore e will verify that all subcontractors have current licenses,bonds,and insurance as required by the City of algin.No contractor will be permitted to work without proper documentation. During construction,our onsite project superintendent will coord. ate directly with the City of Elgin's code official to schedule timely inspections so as not to interrupt the pregress of work.Upon completion of the project,we will verify that all conditions are met in order for the i.suance of an occupancy permit. C.Administration Overall administration of the project will include daily schedulin&and coordination of all activities on site, documentation of activities, and constant communication betwee all team members. Our field personnel complete detailed daily reports describing activities on site,phone calls,deliveries,visitors to the site,RFI status,decisions made,safety conditions,and other unusual condi ions encountered.They also produce two- week look-ahead schedules as a supplement to the overall project schedule.This information is always available for review by City personnel. The Project Manager and the Superintendent will review work fol compliance with plans and specifications. Work not complying will be addressed with the individual contras tor and not accepted until corrective measures have been taken.These individuals will also look for o.portunities to expedite the project and reduce cost through alternative methods or materials.All suggesti e ns will be submitted to the City and Architect for review and approval. The Project Manager will schedule and run a weekly meeting for=11 team members. It will be critical that the City,Architect,Engineers,and all subcontractors be represen ied at these meetings.Given the tight time - 10 - constraints on this project we will need to be able to provide answ.rs to questions in a timely manner. Whenever possible,we will expect representatives of each team to be able to make commitments on behalf of their respective firm or entity.The project cannot afford to lose days and weeks for decisions that can be made at a meeting. The Project Manager will also report informally to the Public Wor, s Director at least weekly with a formal written report bi-weekly in a format satisfactory to him. D. Shop Drawings SMC will review all shop drawings and submittals required by the Construction Documents.We will monitor submittal and review status using a log that will be maint. ned on our computerized management software.This log will be reviewed at the weekly progress meetints. Ultimate sign-off for compliance with specifications should come om the Architect. SMC will review all submittals for coordination and continuity with existing conditio adjacent construction,and other materials and systems.Review of submittals can be critical to the .ssimilation of many components into one finished product. E.Pay Requests SMC will collect and review monthly pay requests from all subco'tractors performing work on site.These monthly requests will be reviewed to verify that work billed is co sistent with actual work performed. SMC will collect all waivers on behalf of the City of Elgin and include em with the appropriate pay application. Pay requests will be managed on a schedule that best meets the Ci 's needs in terms of existing payment schedules.A current accounting of all subcontract status will be .intained and submitted monthly for City review.Furthermore,all SMC records are open to review by City .ersonnel at all times. F.Project Closeout SMC will work with the City and Architect to generate a final p h list for the project. Our objective is always to minimize punch list items through quality control throu:hout the entire project. Once the punch list is established,we will distribute to all subcontractors and esta lish a reasonable schedule for completion of all items. SMC will monitor and manage completion until the p ch list is 100%complete. SMC will assemble all closeout documentation for the City.This , '11 include Operations and Maintenance manuals,warranty letters,and as-built drawings.We will recomm-nd that receipt of this information by the City be a condition of issuing of final payments to subcontractors. In addition to the above information, SMC will schedule and coor.Mate owner training for the equipment and systems installed in this facility.This training will be complet-d in a timeframe convenient for city personnel. Upon final completion of the project, SMC will provide a final resort to the Public Works Director detailing a final cost accounting,list of warranties,list of contact ames and phone numbers for warranty issues,and overall status of the facility. As always,we will remai available for consultation and assistance throughout the warranty period. - 11 - EXHIBIT B (Project Schedule to be inserted when developed) - 12 - EXHIBIT B (Project Schedule to be inserted when developed) - 11 - ,c,(OF F4 Ci • N City of Elgin Agenda Item No. E 011° L • yl l March 7, 2003 G 000 N .3t TO: Mayor and Members of the City Council FINANCIALLY STABLE CITVGOVERNMENT EFFKIENT SERYKES, AND QUALITY INFRASTRUCTURE FROM: Olufemi Folarin, Interim City Manager SUBJECT: Consideration Of Agreement with Shales Mc Nutt Construction For Construction Management Services on the New Public Works Facility PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider a professional services agreement with Shales McNutt Construction for construction management services for the new Public Works rft. Facility construction project . BACKGROUND In April of 2002 , the City Council approved the agreement with Postl-Yore and Associates to provide a team of architects and engineers to design the conversion of the industrial building at 1900 Holmes Road into the new Public Works Facility. The first construction bid package for site work at the facility was awarded February 12, 2003 . The major construction packages for the building renovation will be awarded in April . Construction should begin as soon as contracts are executed and the weather is suitable for the completion of the various work tasks . As has been the practice on recent building construction projects done by the City, a construction management firm will be used to manage a number of "trades" contracts. This approach is utilized because it allows the project to be accomplished at a lower cost than other methods. Due to the lower total project cost, this contract for construction management will not use the guaranteed maximum price approach utilized on The Centre. The construction contracts will be between the City and the various construction firms and the construction manager will not be a party to those contracts . few Subject : Construction Management Services - PW Facility Date: March 7, 2003 Page 2 On January 29, 2003, a Request for Proposal for Construction Management Services was published in the Courier-News. On February 7th, seven firms attended a mandatory, pre-proposal meeting and tour of the job site. On the proposal due date of February 14th, proposals were submitted by four firms including IHC, Lamp Construction, Shales McNutt Construction and Postl- Yore and Associates. A staff selection committee evaluated the four proposals and selected Shales McNutt as the most qualified firm. Upon selection, their representatives met with staff to finalize the project scope and negotiate the fee. The fee for their services will be 5.32% of the construction cost, estimated at $288, 000 .00 based on the current project construction budget . Attached as Exhibit A are the results of the selection process. A copy of the proposed contract is attached as Exhibit B. COMMUNITY GROUPS/INTERESTED PERSONS CONT.CTED None PFINANCIAL IMPACT The total cost of this contract is $288, 000 . 00 . Funding for the Public Works Facility Project is budgeted under project number 339570 . The funding for the Public Works Facility is in the following accounts: 275-0000-791. 92-36 $4, 123, 625* 276-0000-795. 92-36 $1, 985, 000 376-4000-795. 92-36 $1, 000, 000 380-4000-795. 92-36 $1, 000, 000 382-0000-795. 92-36 $3, 800, 000 382-4000-795. 92-36 $ 200, 000 $12, 108, 625 *Including Precision Glass rental payments of $408, 625 Of this amount, $4, 262, 072 remains available for this contract and for the remaining construction bid packages. This contract will be charged to account number 382-0000-795. 92-36 1992 G.O. Bond Sale, Buildings and Structures. . . fek Subject : Construction Management Services - PW Facility Date: March 7, 2003 Page 3 LGAL IMPACT 9A1711 P4 None ALTERNATIVES 1 . Approve the agreement with Shales Mc utt as recommended 2 . Do not approve the agreement and iirect staff to proceed with a different construction manage ent approach. RECOMMENDATION It is recommended that the City Council authorize the City Manager to execute an agreement with Sha es McNutt in the not to exceed amount of 5 .32% of the con-truction contracts or $288, 000 . 00 . elw Respectful', submitted, 111D 111161b Olu emi. • Interim Cii' • _ -k=ger JML/j ml Attachment r