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04-97 Resolution No. 04-97 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH SHALES McNUTT, L.L.C. FOR CONSTRUCTION MANAGEMENT SERVICES FOR FIRE STATION 6 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that David M.Dorgan,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 Shales McNutt, L.L.C. for construction management services for Fire Station 6,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: April 14, 2004 Adopted: April 14, 2004 Vote: Yeas: 5 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk AGREEMENT THIS AGREEMENT, made and entered into this 't- day of ��✓ � , 2004 , by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and SHALES McNUTT, L. L.C. , an Illinois limited liability company (hereinafter referred to as the "CONSTRUCTION MANAGER" ) . WHEREAS, the City owns the property at 707 West Chicago St . , Elgin, Kane County, Illinois (hereinafter referred to as the "Subject Property) ; and WHEREAS, the City desires to construct a fire station as more particularly described in the City' s request for proposals for Construction Manager for New Public Works Facility Project issued March 4, 2004, revised March 12, 2004 (such construction of the fire station on the Subject Property 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 represents that it is in compliance with Illinois statutes relating to professional registration and qualifications of individuals to perform such construction manager services, as may be required from time to time, and has the necessary expertise and the experience to furnish such construction manager services upon the terms and conditions as set forth hereinbelow. NOW, THEREFORE, it is hereby agreed by and 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 relating to the Project as set forth herein subject to the following terms and conditions and stipulations : 1 . SCOPE OF SERVICES A. All work hereunder shall be performed under the direction of the Fire Chief of the CITY, herein after referred to as the "Chief" . 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 the Project as described in Exhibit A attached hereto. 2 . PROGRESS REPORTS A. A detailed project schedule for the Project will be developed by the CONSTRUCTION MANAGER within a reasonable time after the notice to proceed under this agreement and upon the prior approval by the CITY, the schedule will be included as Exhibit B to this agreement . Progress will be recorded on the project schedule and submitted monthly as a component of the Status Report described in B. below. B. The CONSTRUCTION MANAGER will submit to the Chief monthly a Status Report keyed to the Project Schedule . A brief narrative will be provided identifying progress, findings and outstanding issues . 3. WORK PRODUCTS A. All work products prepared by the CONSTRUCTION MANAGER pursuant hereto including, but not limited to, reports, designs, calculations, work drawings, studies, photographs, models and recommendations shall be the property of the CITY and shall be delivered to the CITY upon request of the CHIEF provided, however, that the CONSTRUCTION MANAGER may retain copies of such work products for its records . Such work products are not intended or represented to be suitable for reuse by the CITY on any extension to the PROJECT or on any other project, and such reuse shall be at the sole risk of the CITY without liability or legal exposure to the CONSTRUCTION MANAGER. B. The CONSTRUCTION MANAGER hereby agrees to warrant all workmanship associated with this project for a period of 2 years after the final acceptance of the facility or the start of occupancy of the building whichever comes first . The CONSTRUCTION MANAGER agrees to promptly repair or replace at no cost to the CITY all errors or defects associated with workmanship within the two year period. 4 . PAYMENTS TO THE CONSTRUCTION MANAGER A. For the services provided, the CONSTRUCTION MANAGER shall be reimbursed the sum of $348, 000 for managing the project designed or specified by the architect, provided that this cost shall in no event be exceeded unless substantial modifications to the Scope of Work are authorized in writing by the CITY. This fee of the CONSTRUCTION MANAGER is to include all services described in Exhibit A, `Scope of Services to be Provided", and includes the cost of pre-construction services, site supervisor, project manager, contract administrator, temporary office, temporary toilet, temporary telephone/cell phone, temporary power/water distribution, project safety controls, periodic clean- - 2 - up labor, temporary fence, temporary road, survey/layout, final clean-up, and dumpsters, and includes any subcontractors engaged by the CONSTRUCTION MANAGER. Furthermore, the fee is based on a project construction duration of 12 months . If for any reason this duration is extended beyond the 12 months through no fault of the CONSTRUCTION MANAGER, the CONSTRUCTION MANAGER reserves the right to negotiate with the CITY the additional costs associated with a longer duration. B. Reimbursable expenses which are specifically excluded from the fee described in paragraph 4A above, such as the costs associated with winter conditions, temporary heat, power usage, water usage, plan reproduction, building permits and fees, and utility fees, will be either paid directly by the CITY or billed separately to the CITY and 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 Chief. Said periodic payments to the CONSTRUCTION MANAGER shall not exceed the task amounts set forth in Exhibit C attached hereto, and full payments for each task shall not be made until the task is completed and accepted by the Chief. 5. INVOICES A. The CONSTRUCTION MANAGER shall submit invoices in a format approved by the CITY. Progress reports (2B above) will be included with all payment requests . B. The CONSTRUCTION MANAGER shall maintain usual and customary records showing the time and services performed and costs incurred. The CONSTRUCTION MANAGER shall permit the authorized representative of the CITY 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 . 6. TERMINATION OF AGREEMENT Notwithstanding any other provision hereof, the CITY may terminate this Agreement at any time upon fifteen (15) days prior written notice to the CONSTRUCTION MANAGER. In the event that this Agreement is so terminated, the CONSTRUCTION MANAGER shall be paid for services actually performed and - 3 - reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the amount set forth under Paragraph 4 above . 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 effective as of the date the CONSTRUCTION MANAGER is given a notice to proceed and, unless terminated for cause or pursuant to Section 6, shall be deemed concluded on the date that all of the CONSTRUCTION MANAGER' s work required under this agreement is completed. A determination of completion shall not constitute a waiver of any rights or claims which the 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 occurrence of such action. No claim for additional compensation shall be valid unless so made. Any changes in the CONSTRUCTION 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 decision of the CHIEF relative to a claim submitted by the CONSTRUCTION MANAGER, all work required under this Agreement as determined by the CHIEF shall proceed without interruption. 9. BREACH OF CONTRACT If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek such administrative, contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party, by reason of any default, fails within fifteen (15) days after notice thereof by the other party to comply with the conditions of the Agreement, the other party may terminate this Agreement . 10 . INDEMNIFICATION To the fullest extent permitted by law, CONSTRUCTION MANAGER agrees to and shall indemnify, defend and hold harmless the CITY, its officers, employees, agents, boards and commissions from and against any and all claims, suits, 4 - judgments, costs, attorneys fees, damages or other relief, including but not limited to workers compensation claims, in any way resulting from or arising out of negligent actions or omissions of the CONSTRUCTION MANAGER in connection herewith, including negligence or omissions of employees or agents of the CONSTRUCTION MANAGER arising out of the performance of this Agreement . In the event of any action against the CITY, its officers, employees, agents, boards or commissions, covered by the foregoing 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 . 11 . NO PERSONAL LIABILITY No official, director, officer, agent or employee of the CITY 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 . 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 comprehensive 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 deliver to the Purchasing Director a Certification of Insurance naming the CITY as additional insured. The policy shall not be modified or terminated without thirty (30) days prior written notice to the Purchasing 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 primary insurance with respect to any other insurance or self-insurance programs afforded to the CITY. There shall be no endorsement or modification of this insurance to make it excess over other available insurance, alternatively, if the insurance states that it is excess or prorate, it shall be endorsed to be primary with respect to the CITY. B. Comprehensive Automobile Liability. Comprehensive Automobile Liability Insurance covering all owned, non- owned and hired motor vehicles written in occurrence - 5 - form with limits of not less than $500, 000 per occurrence for damage to property. C. Combined Single Limit Policy. The requirements for insurance coverage for the general liability and auto exposures may be met with a combined single limit of $1, 000, 000 per occurrence subject to a $1, 000, 000 aggregate . 13. 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 and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by 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 assignment shall be made without the prior written consent of the CITY. 15. DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the CONSTRUCTION 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 been 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 6 - This agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. 17 . 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, all other portions of this Agreement shall remain in full force and effect . 18 . HEADINGS The headings of the several paragraphs of this Agreement are inserted only as a matter of convenience and for reference 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. 19. 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. 20. APPLICABLE LAW This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois . Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois . 21 . NEWS RELEASES The CONSTRUCTION MANAGER may not issue any news releases without prior approval from the CHIEF, nor will the CONSTRUCTION MANAGER make public proposals developed under this Agreement without prior written approval from the CHIEF prior to said documentation becoming matters of public record. 22 . COOPERATION WITH OTHER CONSULTANTS 7 - The CONSTRUCTION MANAGER shall cooperate with any other consultants in the CITY' S employ or any work associated with the PROJECT. 23. INTERFERENCE WITH PUBLIC CONTRACTING The CONSTRUCTION MANAGER certifies hereby that it is not barred from bidding on this contract as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24 . SEXUAL HARASSMENT As a condition of this contract, the CONSTRUCTION MANAGER shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor ' 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 . A copy of the policies must be provided to the Department of Human Rights upon request 775 ILCS 5/2-105. 25. WRITTEN COMMUNICATIONS All recommendations and other communications by the CONSTRUCTION MANAGER to the CHIEF and to other participants which may affect cost or time of completion, shall be made or confirmed in writing. The CHIEF may also require other recommendations and communications by the CONSTRUCTION MANAGER be made or confirmed in writing. 26. NOTICES All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed as follows : - 8 - A. As to CITY: Chief Mike Falese 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 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 no other oral agreements that have not been reduced to writing in this statement . FOR THE CITY: FOR THE CONSTRUCTION MANAGER: B y B y — City Manager Attest: d City Clerk 9 - EXHIBIT A SCOPE OF SERVICES TO BE PROVIDED The CONSTRUCTION MANAGER shall provide all services necessary to meet the goals and objectives of the project as detailed in the Request for Qualifications. The services include at a minimum,but are not limited to,the following: Task 1: Project Scheduling a)Divide the work of the PROJECT into bid packages. b)Review bid awards and contracts c)Meet with City and ARCHITECT to discuss contractors and project approach d)Develop draft construction schedule and budget e)Meet with contractors to discuss draft schedule,budget,and coordination of work f)Finalize construction schedule,budget,and present to City and ARCHITECT Task 2: Permits a)Verify that all design documents have been submitted for needed permits b)Verify that all contractors are properly licensed and insured c)Take the steps necessary to correct any items not completed in a)and b) d)Coordinate with City departments as required e)Insure that all inspections required by the City are met Task 3: Administration a)Coordinate the work/scheduling of individual contractors b)Maintain detailed daily project records on conflicts,work completed,and decisions made c)Bring to the attention of the ARCHITECT and the City,in writing,any suggestions for more efficient,cost effective construction methods d)Aggressively manage contractors'work to keep project within budget e)Report all unanticipated work in writing to the City for authorization before proceeding f)Verify that all work in progress meets specifications g)Schedule,chair,and maintain minutes of weekly progress meetings h)Submit bi-weekly written status reports to Fire Chief Task 4: Shop Drawings a)Receive all shop drawings, samples, submittals, and maintain a log of their receipt b)Review all items received against specification and plan for that item c)Resolve equipment/material selection problems with contractors and ARCHITECT - 10 - Task 5: Pay Requests a)Verify payment requests from contractors b)Verify receipt of lien waivers c)Prepare and certify payment requests for processing by City on a schedule compatible with the existing City payment schedule d)Provide a copy of each pay request to ARCHITECT for their concurrence e)Maintain record of project cost-to-date versus project budget that is current to the most recent pay request approved for payment. Provide copy to the Fire Chief immediately after each modification Task 6: Project Closeout a)Prepare punch lists for final completion of each contract,with fire department representatives,architect,and city representatives b)Verify final completion of punch list items with fire department representatives,architect,and city representatives c)Assemble warranty documents d)Assemble equipment maintenance/operation documents e)Compile documents in c)and d)into indexed operations manual f)Prepare as-built record drawings g)Provide a copy of all close out records to the ARCHITECT h)Coordinate City staff training on new equipment i)Deliver final status report to City — 11 — EXHIBIT C FEES AND GENERAL COSTS SUMMARY Pre-construction Services . . . . . . . . . . . . $ 10, 000 . 00 Construction Services Fee Based Upon 4% of Estimated Construction Cost . . . . . . . . $ 88, 000 . 00 Full Time Supervision and Part Time Project Manager . . . . . . . . . $170, 000 . 00 General Conditions . . . . . . . . . . . . . $ 80, 000 . 00 Total Construction Manager Costs . . . . . . . . $348 , 000 . 00