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06-173 Resolution No. 06-173 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH ARTHUR SCHAUPETER FOR ARCHITECTURAL SERVICES AT THE HIGHLANDS GOLF COURSE PHASE II BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Olufemi Folarin,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 Arthur Schaupeter for architectural services for The Highlands Golf Course Phase II,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: July 12, 2006 Adopted: July 12, 2006 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk AGREEMENT THIS AGREEMENT is made and entered into this /214- day of ` r uL , 2006, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and ARTHUR SCHAUPETER (hereinafter referred to as "GOLF COURSE ARCHITECT") . WHEREAS, the CITY desires to engage the GOLF COURSE ARCHITECT to furnish certain professional services in connection with the design and construction of Phase II of the City' s Highlands of Elgin Golf Course located on the east side of McLean Boulevard in Elgin, Illinois (hereinafter referred to as the PROJECT) . AND WHEREAS, the GOLF COURSE ARCHITECT represents that he has the necessary expertise and experience to furnish such services upon the terms and conditions set forth herein below. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the CITY does hereby retain the GOLF COURSE ARCHITECT to perform the services and undertakings for the design and construction observation of the PROJECT, subject to the following terms and conditions : 1 . SCOPE OF SERVICES The GOLF COURSE ARCHITECT shall perform the services for the PROJECT as set forth in the "Scope of Services for Arthur Shaupeter for Phase II of The Highlands of Elgin Golf Course Project", a copy of which is attached hereto as Exhibit A. For purposes of clarification, the Phase I preliminary design phase services to be provided by the GOLF COURSE ARCHITECT shall include, but not be limited to, providing to the CITY a revised reclamation plan for the use by the mining operator. Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that the design and construction of the PROJECT shall be subject to the CITY' S review and approval . 2 . SCHEDULING AND PROGRESS REPORTS A. A Project Schedule for the PROJECT is included as Exhibit B attached hereto. Progress will be recorded on the Project Schedule and submitted monthly as a component of the status report described in Paragraph B below. B. The GOLF COURSE ARCHITECT will submit to the CITY monthly a status report keyed to the Project Schedule . A brief narrative will be provided identifying progress, findings and outstanding issues . 3. WORK PRODUCTS All work products prepared by the GOLF COURSE ARCHITECT pursuant hereto including, but not limited to, plans, drawings, 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 CITY provided, however, that the GOLF COURSE ARCHITECT 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 GOLF COURSE ARCHITECT. 4 . PAYMENTS TO THE GOLF COURSE ARCHITECT A. For the services provided the GOLF COURSE ARCHITECT for the Phase I preliminary design phase the CITY shall pay the GOLF COURSE ARCHITECT the lump sum of Thirty Thousand Dollars ($30, 000) regardless of actual time expended or actual costs incurred by the GOLF COURSE ARCHITECT. The CITY shall pay the GOLF COURSE ARCHITECT an initial payment of Ten Thousand Dollars ($10, 000) of such fee upon commencement of the GOLF COURSE ARCHITECT' S services on the Phase I preliminary design. The CITY shall pay the GOLF COURSE ARCHITECT the $20, 000 balance of such fee upon completion of the services and within thirty (30) days after receipt of invoice. B. For the services provided by the GOLF COURSE ARCHITECT for the Phase II construction documents phase the CITY shall pay the GOLF COURSE ARCHITECT the lump sum of Eight-Five Thousand Dollars ($85, 000) plus reimbursable expenses regardless of actual time expended or actual costs incurred by the GOLF COURSE ARCHITECT. The CITY shall pay the GOLF COURSE ARCHITECT an initial payment of Fifteen Thousand Dollars ($15, 000) upon commencement of the GOLF COURSE ARCHITECT ' S services on the Phase II construction documents phase. The CITY shall pay the GOLF COURSE ARCHITECT the Seventy Thousand Dollar ($70, 000) balance of such fee upon the completion of the services and within thirty (30) days after receipt of an invoice. C. For the services provided by the GOLF COURSE ARCHITECT for the Phase III bid phase, the CITY shall pay the GOLF COURSE ARCHITECT the lump sum of Five Thousand Dollars ($5, 000) plus reimbursable expenses regardless of actual time expended or actual costs incurred by the GOLF COURSE ARCHITECT. The CITY shall pay the GOLF COURSE ARCHITECT upon the completion of the services and within thirty (30) days after receipt of invoice . - 2 - D. For the services provided by the GOLF COURSE ARCHITECT for the Phase IV construction review phase the CITY SHALL pay the GOLF COURSE ARCHITECT the lump sum fee of Forty- Two Thousand Dollars ($42, 000) plus expenses regardless of actual time expended or actual costs incurred by the GOLF COURSE ARCHITECT unless substantial modifications to the PROJECT are authorized in writing by the CITY and approved by the City Council and incorporated into this Agreement by way of written amendment approved by the parties hereto. The CITY shall make monthly payments to the GOLF COURSE ARCHITECT based upon actual progress within thirty (30) days after receipt of an invoice. Said monthly payments to the GOLF COURSE ARCHITECT shall not exceed $6, 000 in any month and full payments for each task shall not be made until the task is completed and accepted by the CITY. Such monthly payments to the GOLF COURSE ARCHITECT for construction review phase services shall be made only for months of actual construction and not during months where construction has been halted due to weather or otherwise. The GOLF COURSE ARCHITECT ' S lump sum fee of $42, 000 for construction review phase services is based upon seven (7) months of actual construction. The GOLF COURSE ARCHITECT ' S fee for construction review phase services may be equitably adjusted if such services extend beyond seven (7) months of actual construction not including months where construction has been halted due to weather or otherwise and such additional duration of the construction phase is as a result of matters not caused by the GOLF COURSE ARCHITECT. Prior to performing any additional construction review phase services the GOLF COURSE ARCHITECT shall receive the advanced approval of the CITY by way of amendment to this Agreement. If such additional services for an additional duration of the construction phase are so approved by the CITY, the GOLF COURSE ARCHITECT shall receive additional compensation for such services at the hourly and per diem rates of its professional and technical personnel as set forth in Exhibit C attached hereto and made a part hereof by this reference . E. In addition to the foregoing fees, the GOLF COURSE ARCHITECT shall be paid reimbursable expenses incurred in the discharge of services connected with the PROJECT for postage, copying and out of town travel authorized by the CITY. Reimbursable expenses shall not exceed the total amount of $ 15, 000 . The CITY shall make payments to the GOLF COURSE ARCHITECT for reimbursable expenses within thirty (30) days after receipt and approval of an invoice for same. F. The fiscal year of the CITY is the 12-month period ending December 31 . The obligations of the CITY under any contract for any fiscal year are subject to and - 3 - contingent upon the appropriation of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of the contract. If, for any fiscal year during the term of this Agreement, sufficient funds for the discharge of the CITY' S obligations under the Agreement are not appropriated and authorized, then the Agreement shall terminate as of the last day of the preceding fiscal year, or when such appropriated and authorized funds are exhausted, whichever is later, without liability to the CITY for damages, penalties or other charges on account of such termination. 5 . INVOICES A. The GOLF COURSE ARCHITECT shall submit invoices in a format approved by the CITY. Progress reports (2B above) will be included with all payment requests . B. The GOLF COURSE ARCHITECT shall maintain records showing actual time devoted and cost incurred. The GOLF COURSE ARCHITECT shall permit the authorized representative of the CITY to inspect and audit all data and records of the GOLF COURSE ARCHITECT for work done under this Agreement. The GOLF COURSE ARCHITECT 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 GOLF COURSE ARCHITECT. In the event that this Agreement is so terminated, the GOLF COURSE ARCHITECT shall be paid for services actually performed and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the task amounts set forth under Paragraph 4 above. 7 . TERM This Agreement shall become effective as of the date the GOLF COURSE ARCHITECT is given a notice to proceed and, unless terminated for cause or pursuant to Article 5, shall be deemed concluded on the date the CITY determines that all of the GOLF COURSE ARCHITECT' s work 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 . - 4 - 8 . NOTICE OF CLAIM If the GOLF COURSE ARCHITECT wishes to make a claim for additional compensation as a result of action taken by the CITY, the GOLF COURSE ARCHITECT 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 GOLF COURSE ARCHITECT' S fee shall be valid only to the extent that such changes are included in writing signed by the CITY and the GOLF COURSE ARCHITECT. Regardless of the decision of the DIRECTOR relative to a claim submitted by the GOLF COURSE ARCHITECT, all work required under this Agreement as determined by the DIRECTOR 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, GOLF COURSE ARCHITECT 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, 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 GOLF COURSE ARCHITECT in connection herewith, including negligence or omissions of employees or agents of the GOLF COURSE ARCHITECT 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 of the CITY' S choosing. The provisions of this paragraph shall survive any completion, 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. - 5 - 12 . INSURANCE A. Comprehensive Liability. The GOLF COURSE ARCHITECT shall provide, pay for and maintain in effect, during the term of this Agreement, a policy of comprehensive general liability insurance with limits of at least $1, 000, 000 aggregate for bodily injury and $1, 000, 000 aggregate for property damage. The GOLF COURSE ARCHITECT shall deliver to the CITY 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 CITY. The Certificate of Insurance which shall include Contractual obligation assumed by the GOLF COURSE ARCHITECT under Article 10 entitled "Indemnification" shall be provided. 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 prorated, 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 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. D. Professional Liability. The GOLF COURSE ARCHITECT shall carry Professional Liability Insurance Covering claims resulting from error, omissions or negligent acts with a combined single limit of not less than $1, 000, 000 per occurrence. A Certificate of Insurance shall be submitted to the CITY as evidence of insurance protection. The policy shall not be modified or terminated without thirty (30) days prior written notice to the CITY. - 6 - 13 . CONSTRUCTION MEANS, METHODS, TECHNIQUES, SEQUENCES, PROCEDURES AND SAFETY The GOLF COURSE ARCHITECT shall have the authority to act on behalf of the CITY only to the extent provided in this Agreement unless otherwise modified by written instrument . The GOLF COURSE ARCHITECT shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work, since these are solely the contractor' s responsibility under the contract for construction. The GOLF COURSE ARCHITECT shall not be responsible for the contractor' s schedules or failure to carry out the work in accordance with the contract documents. The GOLF COURSE ARCHITECT shall not have control over or charge of acts or omissions of the contractor, subcontractors, or their agents or employees, or of any other persons performing portions of the work. The GOLF COURSE ARCHITECT shall have authority to reject work which does not conform to the contract documents, design plans or design/intent . Whenever the GOLF COURSE ARCHITECT considers it necessary or advisable for implementation of the intent of the contract documents, the GOLF COURSE ARCHITECT will have authority to require additional inspection or testing of the work in accordance with the provisions of the contract documents, whether or not such work is fabricated, installed or completed. Interpretations and decisions of the GOLF COURSE ARCHITECT shall be consistent with the intent of and reasonably inferable from the contract documents and shall be in writing or in the form of drawings . When making such interpretations and initial decision, the GOLF COURSE ARCHITECT shall endeavor to secure faithful performance by both the CITY and contractor, shall not show partiality to either, and shall not be liable for results of interpretations or decisions so rendered in good faith. Evaluations of the CITY' S PROJECT budget, preliminary estimates of construction cost and detailed estimates of construction cost, if any, prepared by the GOLF COURSE ARCHITECT, represent the GOLF COURSE ARCHITECT' S best judgment as a design professional familiar with t he construction industry. It is recognized, however, that neither the GOLF COURSE ARCHITECT nor the CITY has control over the cost of labor, materials or equipment, over the contractor' s methods of determining bid prices, or over competitive bidding, market or negotiating conditions . Accordingly, the GOLF COURSE ARCHITECT cannot and does not warrant or represent that bids or negotiated prices will not vary from the CITY' S PROJECT budget or from any estimate of construction cost or evaluation prepared or agreed to by the GOLF COURSE ARCHITECT. - 7 - 14 . CITY' S RESPONSIBILITIES. A. The CITY will provide all necessary accurately scaled base maps depicting all boundary line data and legal description applicable, topography (2 ' contour intervals) , existing vegetative cover, rock formations, existing structures, and site features including streams, wetlands and water bodies, to the designated site so that accurate construction documents can be produced for the construction phase and used by other PROJECT team members . These base maps are to be provided to the GOLF COURSE ARCHITECT (in a timely basis) and are to be of an approved format of use . B. The CITY will provide the GOLF COURSE ARCHITECT with construction budget figures as an aid in setting practical limits on the design. C. The CITY will make available the information it has as to rock formation, soil type, water supply, utilities, etc. D. The CITY shall provide full information regarding requirements for the golf course, including a program, which shall set forth the CITY' S objectives, schedule, constructions and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements . E. The CITY shall establish and update an overall budget for the PROJECT, including the construction cost, the CITY' S other costs and reasonable contingencies related to all of these costs . F. The CITY shall furnish the services of geotechnical engineers when such services are requested by the GOLF COURSE ARCHITECT. 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 anticipation subsoil conditions, with reports and appropriate professional recommendations . G. The CITY shall furnish, at its expense, all legal, accounting and insurance counseling services as may be necessary at any times for the PROJECT, including auditing services the CITY may require to verify money paid by or on behalf of the city. 15. ADDITIONAL PROVISIONS A. Bunker shaping, tee, fairway and green outlets and other details shall be outlined by the GOLF COURSE ARCHITECT for the CITY' s golf course superintendent during the grow-in period to insure that detailing for the golf course is accomplished in - 8 - relation to the design intent. The CITY shall pay the GOLF COURSE ARCHITECT for such services at the hourly and per diem rates of its professional and technical personnel as set forth in Exhibit C Attached hereto and made a part hereof by this reference, with the total fees and expenses to be paid to the GOLF COURSE ARCHITECT for such additional services not to exceed $10, 000 . B. That after completion of the PROJECT the GOLF COURSE ARCHITECT shall, upon the request from the CITY, return every year during the first two years after completion. The purpose of such visit is to insure that the design intent for the golf course PROJECT is being accomplished and properly maintained. The CITY shall pay the GOLF COURSE ARCHITECT for such additional services according to the hourly and per diem rates as set forth in Exhibit C hereto. 16. 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. 17 . 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. 18 . DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the GOLF COURSE ARCHITECT shall remain liable to the CITY with respect to each and every item, condition and - 9 - other provision hereof to the same extent that the GOLF COURSE ARCHITECT 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 . 19. NO CO-PARTNERSHIP OR AGENCY This agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. 20 . 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. 21 . 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. 22 . 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. 23 . 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 . 24 . NEWS RELEASES The GOLF COURSE ARCHITECT may not issue any news releases without prior approval from the DIRECTOR, nor will the GOLF COURSE ARCHITECT make public proposals developed under this - 10 - Agreement without prior written approval from the DIRECTOR prior to said documentation becoming matters of public record. 25. COOPERATION WITH OTHER CONSULTANTS The GOLF COURSE ARCHITECT shall cooperate with any other consultants in the CITY' s employ or any work associated with the PROJECT. 26. INTERFERENCE WITH PUBLIC CONTRACTING The GOLF COURSE ARCHITECT 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. 27 . SEXUAL HARASSMENT As a condition of this contract, the GOLF COURSE ARCHITECT 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 . 28. WRITTEN COMMUNICATIONS All recommendations and other communications by the GOLF COURSE ARCHITECT to the CITY and to other participants which may affect cost or time of completion, shall be made or confirmed in writing. The CITY may also require other recommendations and communications by the GOLF COURSE ARCHITECT be made or confirmed in writing. - 11 - 29. 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 : A. As to CITY: Randy Reopelle Parks and Recreation Director City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to GOLF COURSE ARCHITECT: Arthur Schaupeter 65 wlww■.c aR I V cp_ si. t- 115, M4 ((3%44 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 T E GOLF COURSE ARCHITECT: \ks\ By By - 4 City nage 4 Arthur Sc u�'eter Attest: City Clerk F:\Legal Dept\Agreement\Golf Course Architect-Highlands Phase II.doc — 12 - 1 EXHIBIT A SCOPE OF SERVICES FOR ARTHUR SCHAUPETER FOR PHASE II OF THE HIGHLANDS OF ELGIN GOLF COURSE PHASE 1 PRELIMINARY DESIGN PHASE: A. Consultation with respect to the overall requirements of golf facilities including,but not limited to, an appraisal of area requirements, circulation relationships and compatibility with other facilities. B. Working with the city to prepare initial nine (9) hole, ten (10) hole and/or eleven (11) hole conceptual routing options that establish golf corridors within a desired land plan. In addition to the golf holes, the various routing options will include additional practice holes where spatially feasible. C. Conceptual routings will be prepared and submitted to the CITY. The intent will be to establish a feasible golf routing that relates effectively to existing site features, opportunities and constraints. D. On the basis of an approved conceptual routing plan, the GOLF COURSE ARCHITECT will develop a final routing plan that details out the layout of the golf course features including, but not limited to, greens, tees, fairways, irrigated rough, bunkers,cart paths and native rough areas. E. A detailed summary of probable construction costs and a schedule of construction for the golf course will be provided with the finial routing plan. G. A 1"=200' rendered plan will be prepared and presented to the CITY on the final routing of the golf course. Additional color copies can be provided to the CITY at the GOLF COURSE ARCHITECT'S cost. . a PHASE 2 CONSTRUCTION DOCUMENTS PHASE: A. Upon the direction of the CITY the GOLF COURSE ARCHITECT will prepare plans and specifications for the golf course construction which will include: 1. Staking/Limits of Disturbance Plans 1"=100' 2. Grading Plans 1"=100' 3. Drainage Plans 1"=100' 4. Grassing Plans 1"=100' 5. Green Plans 1"=30' 6. Construction Details Scale Varies (Green,bunker,cart path,etc.) 7. Construction Specifications and Contract Forms The above items will be prepared for nine (9) to eleven(11) holes and a practice area if needed. The cart path routing and shelter locations will be shown on the grading plan. • All of the above items will be prepared in CAD format, for use in bidding and construction. The irrigation system design, plans and specifications are not included within this contract. Design for bridges, shelters, maintenance buildings, parking lots and the clubhouse are not part of this contract B. The GOLF COURSE ARCHITECT will furnish plans and specifications to the CITY at the GOLF COURSE ARCHt'1'ECT'S cost C. The CITY will retain a qualified project engineer to assist the GOLF COURSE ARCHITECT with soil surveys,lake sealing, flood-way information, erosion control measures and requirements and potential drainage issues and concerns. PHASE 3 CONSTRUCTION BID OR NEGOTIATION PHASE: A. • Plans and specifications will be submitted for bids in accordance with procedures reasonably acceptable to the CITY. B. The GOLF COURSE ARCHITECT will help coordinate the golf course construction bid process,conduct a pre-bid meeting, tabulate bids received,make an analysis of the construction proposal and recommend the contract awards. C. The GOLF COURSE ARCHITECT will provide one (1) set of plans and specifications to each qualified contractor approved to bid on the project Additional sets requested will be sent upon approval of the CITY, billable to the CITY at the GOLF COURSE ARCHITECT'S cost. PHASE 4 CONSTRUCTION REVIEW PHASE A. During the construction period, the GOLF COURSE ARCHITECT will visit the site to ensure that the integrity of the design intent is accomplished. Site visits will be made regularly throughout the construction of the golf course (20—30 site visits estimated). B. The length of time required to construct nine (9)holes is estimated at six (6) to seven (7) months. It is dependent upon what time of year the project begins and the CITY'S overall timing for the project. C. The GOLF COURSE ARCHITECT will prepare estimates for progress payments, make final inspection of the construction when the work has been completed and approve final payment. • EXHIBIT B PROJECT SCHEDULE Phase 1 Preliminary Design August 2006-March 2007 Phase 2 Construction Document April 2007-November 2007 Phase 3 Construction Bid December 2007-March 2008 Phase 4 Construction Review April 2008-October 2008 - 14 - EXHIBIT C GOLF COURSE ARCHITECT ' S HOURLY AND PER DIEM FEE SCHEDULE Principal $100 . 00 per hour $1, 000 . 00 per day Associate $ 45 . 00 per hour $ 450 . 00 per day Staff $ 20 . 00 per hour $ 200 . 00 per day - 15 - • OF E4c Agenda 4- City of Elgin genda Item No. F f"F r y', June 9, 2006 TO: Mayor and Members of the City Council - -- FROM: Olufemi Folarin, City Manager Randy Reopelle, Parks and Re eation Superintendent SUBJECT: Golf Course Architect Contract with Mr. Art Schaupeter for Highlands Golf Course Phase II Architectural Services. PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to approve a contract with Art Schaupeter for Highlands Golf Course Phase II architectural services. doik RECOMMENDATION It is recommended the City Council approve the architectural services contract with Mr. Art Schaupeter for a not-to-exceed amount of$177,000. BACKGROUND The architectural firm of Mr. Keith Foster designed and oversaw the construction of Phase I of the Highlands Golf Course. Since opening, it has been met with rave reviews and with great anticipation for the completion of Phase II by the community. Phase II of The Highlands includes the construction of the additional holes to complete the 18 hole design or options to make it into an 18 hole course with an additional short course for juniors and seniors. As noted in an earlier Committee of the Whole memorandum, Keith Foster will not be able to provide the architectural services in a timely fashion, thereby necessitating the need to enter into a contract with another golf course architect to complete the vision for The Highlands of Elgin. Art Schaupeter was the lead design and field architect for Keith Foster during Phase I of the project. Mr. Schaupeter is intimately familiar with the overall vision of the Highlands of Elgin. To assure that the scale and scope of Phase II stays consistent with Phase I, staff recommends the City enter into an architectural agreement with Mr. Schaupeter. Mr. Schaupeter's services will also be beneficial as Prairie Materials (the mining contractor) is in the process of completing wry► their reclamation activities on the site. By having the golf course plans completed while Prairie Materials is still working on the site, there is a greater likelihood that the amount of earthmoving the golf course contractor will be required to do could be reduced. ow Golf Architect Contract June 9, 2006 Page 2 An exception to the procurement ordinance will need to be granted to enter into the agreement with Mr. Schaupeter. Staff believes it is justified given Mr. Schaupeter's prior involvement with the project and the benefits that will be derived from bringing him on board during this critical time frame of the project. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED The Golf Course Leadership Team rTNANCIAL IMPACT he contract with Art Schaupeter Golf Course Architects will be a not-to-exceed amount of $177,000. Funding for this contract is located in the River Boat Fund, account number 275- 0000-791.92-36 project number 509637 (Highlands Phase 2) where $2,981,067 is budgeted and $2,442,461 is available. EGAL IMPACT None. ALTERNATIVES 1. Approve the contract for a not-to-exceed amount of$177,000 with Art Schaupeter Golf Course Architects. 2. Do not approve the contract for a not-to-exceed amount of$177,000 with Art Schaupeter Golf Course Architects. Respectfully submitted for Council consideration. RR o 3 ` AGREEMENT THIS AGREEMENT is made and entered into this day of 2006, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY" ) and ARTHUR SCHAUPETER (hereinafter referred to as "GOLF COURSE ARCHITECT" ) . WHEREAS, the CITY desires to engage the GOLF COURSE ARCHITECT to furnish certain professional services in connection with the design and construction of Phase II of the City' s Highlands of Elgin Golf Course located on the east side of McLean Boulevard in Elgin, Illinois (hereinafter referred to as the PROJECT) . AND WHEREAS, the GOLF COURSE ARCHITECT represents that he has the necessary expertise and experience to furnish such services upon the terms and conditions set forth herein below. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the CITY does hereby retain the GOLF COURSE ARCHITECT to perform the services and undertakings for the design and construction observation of the PROJECT, subject to the following terms and conditions: 1. SCOPE OF SERVICES The GOLF COURSE ARCHITECT shall perform the services for the PROJECT as set forth in the "Scope of Services for Arthur Shaupeter for Phase II of The Highlands of Elgin Golf Course Project" , a copy of which is attached hereto as Exhibit A. This Agreement authorizes the services for the Phase I preliminary design phase, the Phase II construction documents phase and the Phase III construction bid or negotiation phase. Payment for such services provided for in Paragraph 4 . Reimbursable expenses related to such services shall not exceed the total amount of $ and are included in the total reimbursable expenses provided for in paragraph 4E. Authorization for the remaining services identified in this agreement shall require a written amendment to this agreement approved by the parties hereto. Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that the design and construction of the PROJECT shall be subject to the CITY' S review and approval . 2 . SCHEDULING AND PROGRESS REPORTS A. A Project Schedule for the PROJECT is included as Exhibit B attached hereto. Progress will be recorded on the Project Schedule and submitted monthly as a component of the status report described in Paragraph B below. B. The GOLF COURSE ARCHITECT will submit to the CITY monthly a status report keyed to the Project Schedule . A brief narrative will be provided identifying progress, findings and outstanding issues . 3 . WORK PRODUCTS All work products prepared by the GOLF COURSE ARCHITECT pursuant hereto including, but not limited to, plans, drawings, 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 CITY provided, however, that the GOLF COURSE ARCHITECT 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 GOLF COURSE ARCHITECT. 4. PAYMENTS TO THE GOLF COURSE ARCHITECT A. For the services provided the GOLF COURSE ARCHITECT for ,— the Phase I preliminary design phase the CITY shall pay the GOLF COURSE ARCHITECT the lump sum of Thirty Thousand Dollars ($30, 000) regardless of actual time expended or actual costs incurred by the GOLF COURSE ARCHITECT. The CITY shall pay the GOLF COURSE ARCHITECT an initial payment of Ten Thousand Dollars ($10, 000) of such fee upon commencement of the GOLF COURSE ARCHITECT' S services on the Phase I preliminary design. The CITY shall pay the GOLF COURSE ARCHITECT the $20, 000 balance of such fee upon completion of the services and within thirty (30) days after receipt of invoice. B. For the services provided by the GOLF COURSE ARCHITECT for the Phase II construction documents phase the CITY shall pay the GOLF COURSE ARCHITECT the lump sum of Eight-Five Thousand Dollars ($85, 000)plus reimbursable expenses regardless of actual time expended or actual costs incurred by the GOLF COURSE ARCHITECT. The CITY shall pay the GOLF COURSE ARCHITECT an initial payment of Fifteen Thousand Dollars ($15, 000) upon commencement of the GOLF COURSE ARCHITECT' S services on the Phase II construction documents phase. The CITY shall pay the GOLF COURSE ARCHITECT the Seventy Thousand Dollar ($70, 000) balance of such fee upon the completion of the services and within thirty (30) days after receipt of an dew invoice. C. For the services provided by the GOLF COURSE ARCHITECT for the Phase III bid phase, the CITY shall pay the GOLF COURSE ARCHITECT the lump sum of Five Thousand Dollars ($5, 000) plus reimbursable expenses regardless of actual Alok time expended or actual costs incurred by the GOLF COURSE ARCHITECT. The CITY shall pay the GOLF COURSE ARCHITECT upon the completion of the services and within thirty (30) days after receipt of invoice . D. For the services provided by the GOLF COURSE ARCHITECT for the Phase IV construction review phase the CITY SHALL pay the GOLF COURSE ARCHITECT the lump sum fee of Forty- Two Thousand Dollars ($42 , 000) plus expenses regardless of actual time expended or actual costs incurred by the GOLF COURSE ARCHITECT unless substantial modifications to the PROJECT are authorized in writing by the CITY and approved by the City Council and incorporated into this Agreement by way of written amendment approved by the parties hereto. The CITY shall make monthly payments to the GOLF COURSE ARCHITECT based upon actual progress within thirty (30) days after receipt of an invoice. Said monthly payments to the GOLF COURSE ARCHITECT shall not exceed $6, 000 in any month and full payments for each task shall not be made until the task is completed and accepted by the CITY. Such monthly payments to the GOLF COURSE ARCHITECT for construction review phase services shall be made only for months of actual construction and not during months where construction has been halted due to weather or otherwise . The GOLF COURSE ARCHITECT' S lump sum fee of $42, 000 for construction review phase services is based upon seven (7) months of actual construction. The GOLF COURSE ARCHITECT ' S fee for construction review phase services may be equitably adjusted if such services extend beyond seven (7) months of actual construction not including months where construction has been halted due to weather or otherwise and such additional duration of the construction phase is as a result of matters not caused by the GOLF COURSE ARCHITECT. Prior to performing any additional construction review phase services the GOLF COURSE ARCHITECT shall receive the advanced approval of the CITY by way of amendment to this Agreement . If such additional services for an additional duration of the construction phase are so approved by the CITY, the GOLF COURSE ARCHITECT shall receive additional compensation for such services at the hourly and per diem rates of its professional and technical personnel as set forth in Exhibit C attached hereto and made a part hereof by this reference. E. In addition to the foregoing fees, the GOLF COURSE ARCHITECT shall be paid reimbursable expenses incurred in 'P,,, the discharge of services connected with the PROJECT for postage, copying and out of town travel authorized by the CITY. Reimbursable expenses shall not exceed the total amount of $ . The CITY shall make payments to the GOLF COURSE ARCHITECT for reimbursable expenses Ate` within thirty (30) days after receipt and approval of an invoice for same. F. The fiscal year of the CITY is the 12-month period ending December 31 . The obligations of the CITY under any contract for any fiscal year are subject to and contingent upon the appropriation of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of the contract . If, for any fiscal year during the term of this Agreement, sufficient funds for the discharge of the CITY' S obligations under the Agreement are not appropriated and authorized, then the Agreement shall terminate as of the last day of the preceding fiscal year, or when such appropriated and authorized funds are exhausted, whichever is later, without liability to the CITY for damages, penalties or other charges on account of such termination. 5 . INVOICES A. The GOLF COURSE ARCHITECT shall submit invoices in a format approved by the CITY. Progress reports (2B above) will be included with all payment requests . B. The GOLF COURSE ARCHITECT shall maintain records showing actual time devoted and cost incurred. The GOLF COURSE ARCHITECT shall permit the authorized representative of the CITY to inspect and audit all data and records of the GOLF COURSE ARCHITECT for work done under this Agreement. The GOLF COURSE ARCHITECT 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 GOLF COURSE ARCHITECT. In the event that this Agreement is so terminated, the GOLF COURSE ARCHITECT shall be paid for services actually performed and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the task amounts set forth under Paragraph 4 above . 7 . TERM Allow Agreement shall become effective as of the date the GOLF COURSE ARCHITECT is given a notice to proceed and, unless terminated for cause or pursuant to Article 5, shall be deemed concluded on the date the CITY determines that all of the GOLF COURSE ARCHITECT' s work under this agreement is completed. A determination of completion shall not constitute a waiver of A 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 GOLF COURSE ARCHITECT wishes to make a claim for additional compensation as a result of action taken by the CITY, the GOLF COURSE ARCHITECT 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 GOLF COURSE ARCHITECT'S fee shall be valid only to the extent that such changes are included in writing signed by the CITY and the GOLF COURSE ARCHITECT. Regardless of the decision of the DIRECTOR relative to a claim submitted by the GOLF COURSE ARCHITECT, all work required under this Agreement as determined by the DIRECTOR 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, GOLF COURSE ARCHITECT 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, 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 GOLF COURSE ARCHITECT in connection herewith, including negligence or omissions of employees or agents of the GOLF COURSE ARCHITECT 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 of the CITY' S choosing. The provisions of this paragraph shall survive any ,ir... completion, 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 GOLF COURSE ARCHITECT shall provide, pay for and maintain in effect, during the term of this Agreement, a policy of comprehensive general liability insurance with limits of at least $1, 000, 000 aggregate for bodily injury and $1, 000, 000 aggregate for property damage . The GOLF COURSE ARCHITECT shall deliver to the CITY 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 CITY. The Certificate of Insurance which shall include Contractual obligation assumed by the GOLF COURSE ARCHITECT under Article 10 entitled "Indemnification" shall be provided. �.► 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 prorated, 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 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. D. Professional Liability. The GOLF COURSE ARCHITECT shall carry Professional Liability Insurance Covering claims resulting from error, omissions or negligent acts with a combined single limit of not less than $1, 000, 000 per occurrence. A Certificate of Insurance shall be submitted to the CITY as evidence of insurance protection. The O,,, policy shall not be modified or terminated without thirty (30) days prior written notice to the CITY. IMF► 13 . CONSTRUCTION MEANS, METHODS, TECHNIQUES, SEQUENCES, PROCEDURES AND SAFETY The GOLF COURSE ARCHITECT shall have the authority to act on behalf of the CITY only to the extent provided in this Agreement unless otherwise modified by written instrument . The GOLF COURSE ARCHITECT shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work, since these are solely the contractor' s responsibility under the contract for construction. The GOLF COURSE ARCHITECT shall not be responsible for the contractor' s schedules or failure to carry out the work in accordance with the contract documents . The GOLF COURSE ARCHITECT shall not have control over or charge of acts or omissions of the contractor, subcontractors, or their agents or employees, or of any other persons performing portions of the work. The GOLF COURSE ARCHITECT shall have authority to reject work which does not conform to the contract documents, design plans or design/intent . Whenever the GOLF COURSE ARCHITECT . • considers it necessary or advisable for implementation of the intent of the contract documents, the GOLF COURSE ARCHITECT will have authority to require additional inspection or testing of the work in accordance. with the provisions of the contract documents, whether or not such work is fabricated, installed or completed. Interpretations and decisions of the GOLF COURSE ARCHITECT shall be consistent with the intent of and reasonably inferable from the contract documents and shall be in writing or in the form of drawings. When making such interpretations and initial decision, the GOLF COURSE ARCHITECT shall endeavor to secure faithful performance by both the CITY and contractor, shall not show partiality to either, and shall not be liable for results of interpretations or decisions so rendered in good faith. Evaluations of the CITY' S PROJECT budget, preliminary estimates of construction cost and detailed estimates of construction cost, if any, prepared by the GOLF COURSE ARCHITECT, represent the GOLF COURSE ARCHITECT'S best judgment as a design professional familiar with t he construction industry. It is recognized, however, that neither the GOLF COURSE ARCHITECT nor the CITY has control over the cost of labor, materials or equipment, over the contractor' s methods of determining bid prices, or over competitive bidding, market or negotiating conditions . Accordingly, the GOLF COURSE ARCHITECT cannot and does not warrant or represent that bids or negotiated prices will not vary from the CITY'S PROJECT budget or from any estimate of construction cost or evaluation prepared or agreed to by the GOLF COURSE ARCHITECT. 14 . CITY'S RESPONSIBILITIES. A. The CITY will provide all necessary accurately scaled base maps depicting all boundary line data and legal description applicable, topography (2 ' contour intervals) , existing vegetative cover, rock formations, existing structures, and site features including streams, wetlands and water bodies, to the designated site so that accurate construction documents can be produced for the construction phase and used by other PROJECT team members. These base maps are to be provided to the GOLF COURSE ARCHITECT (in a timely basis) and are to be of an approved format of use. B. The CITY will provide the GOLF COURSE ARCHITECT with construction budget figures as an aid in setting practical limits on the design. C. The CITY will make available the information it has as to rock formation, soil type, water supply, utilities, etc. D. The CITY shall provide full information regarding requirements for the golf course, including a program, which AIN., shall set forth the CITY'S objectives, schedule, constructions and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements . E. The CITY shall establish and update an overall budget for the PROJECT, including the construction cost, the CITY'S other costs and reasonable contingencies related to all of these costs . F. The CITY shall furnish the services of geotechnical engineers when such services are requested by the GOLF COURSE ARCHITECT. 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 anticipation subsoil conditions, with reports and appropriate professional recommendations. G. The CITY shall furnish, at its expense, all legal, accounting and insurance counseling services as may be necessary at any times for the PROJECT, including auditing services the CITY may require to verify money paid by or on behalf of the city. 15. ADDITIONAL PROVISIONS OINK A. Bunker shaping, tee, fairway and green outlets and other details shall be outlined by the GOLF COURSE ARCHITECT for the CITY' s golf course superintendent during the grow-in period to insure that detailing for the golf course is accomplished in relation to the design intent . The CITY shall pay the GOLF COURSE ARCHITECT for such services at the hourly and per diem rates of its professional and technical personnel as set forth in Exhibit C Attached hereto and made a part hereof by this reference, with the total fees and expenses to be paid to the GOLF COURSE ARCHITECT for such additional services not to exceed $10, 000 . B. That after completion of the PROJECT the GOLF COURSE ARCHITECT shall, upon the request from the CITY, return every year during the first two years after completion. The purpose of such visit is to insure that the design intent for the golf course PROJECT is being accomplished and properly maintained. The CITY shall pay the GOLF COURSE ARCHITECT for such additional services according to the hourly and per diem rates as set forth in Exhibit C hereto. 16 . 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 4/0*4 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. 17 . 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. 18 . DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the GOLF COURSE ARCHITECT shall remain liable to the CITY with respect to each and every item, condition and - Q - other provision hereof to the same extent that the GOLF COURSE ARCHITECT 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 . 19 . NO CO-PARTNERSHIP OR AGENCY This agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. 20. 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 . 21. HEADINGS The headings of the several paragraphs of this Agreement are 40.■ 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 . 22 . 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. 23 . 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 . 24 . NEWS RELEASES The GOLF COURSE ARCHITECT may not issue any news releases without prior approval from the DIRECTOR, nor will the GOLF COURSE ARCHITECT make public proposals developed under this Agreement without prior written approval from the DIRECTOR prior to said documentation becoming matters of public record. 25. COOPERATION WITH OTHER CONSULTANTS The GOLF COURSE ARCHITECT shall cooperate with any other consultants in the CITY' s employ or any work associated with the PROJECT. 26 . INTERFERENCE WITH PUBLIC CONTRACTING The GOLF COURSE ARCHITECT 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. 27 . SEXUAL HARASSMENT As a condition of this contract, the GOLF COURSE ARCHITECT 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 . 28 . WRITTEN COMMUNICATIONS All recommendations and other communications by the GOLF COURSE ARCHITECT to the CITY and to other participants which ,,m., may affect cost or time of completion, shall be made or confirmed in writing. The CITY may also require other recommendations and communications by the GOLF COURSE ARCHITECT be made or confirmed in writing. 29 . 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 : A. As to CITY: Randy Reopelle Parks and Recreation Director City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to GOLF COURSE ARCHITECT: ,�► Arthur Schaupeter 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 GOLF COURSE ARCHITECT: By By City Manager Arthur Schaupeter Attest : City Clerk F:\Legal Dept\Agreement\Golf Course Architect-Highlands Phase II.doc EXHIBIT A SCOPE OF SERVICES FOR ARTHUR SCHAUPETER FOR PHASE II OF THE HIGHLANDS OF ELGIN GOLF COURSE PHASE 1 PRELIMINARY DESIGN PHASE: A. Consultation with respect to the overall requirements of golf facilities including, but not limited to, an appraisal of area requirements, circulation relationships and compatibility with other facilities. B. Working with the city to prepare initial nine (9) hole, ten (10) hole and/or eleven (11) hole conceptual routing options that establish golf corridors within a desired Ask land plan. In addition to the golf holes, the various routing options will include additional practice holes where spatially feasible. C. Conceptual routings will be prepared and submitted to the CITY. The intent will be to establish a feasible golf routing that relates effectively to existing site features, opportunities and constraints. D. On the basis of an approved conceptual routing plan, the GOLF COURSE ARCHITECT will develop a final routing plan that details out the layout of the golf course features including, but not limited to, greens, tees, fairways, irrigated rough, bunkers,cart paths and native rough areas. E. A detailed summary of probable construction costs and a schedule of construction for the golf course will be provided with the final routing plan. G. A 1"=200' rendered plan will be prepared and presented to the CITY on the final routing of the golf course. Additional color copies can be provided to the CITY at the GOLF COURSE ARCHITECT'S cost. PHASE 2 CONSTRUCTION DOCUMENTS PHASE: A. Upon the direction of the CITY the GOLF COURSE ARCHITECT will prepare plans and specifications for the golf course construction which will include: 1. Staking/Limits of Disturbance Plans. 1"=100' 2. Grading Plans 1"=100' 3. Drainage Plans 1"=100' 4. Grassing Plans 1"=100' 5. Green Plans 1"=30' 6. Construction Details Scale Varies (Green,bunker,cart path,etc.) 7. Construction Specifications and Contract Forms The above items will be prepared for nine (9) to eleven (11) holes and a practice area if needed. The cart path routing and shelter locations will be shown on the grading plan. All of the above items will be prepared in CAD format, for use in bidding and construction. The irrigation system design, plans and specifications are not included within this contract. Design for bridges, shelters, maintenance buildings, parking lots and the clubhouse are not part of this contract B. The GOLF COURSE ARCHITECT will furnish plans and specifications to the CITY at the GOLF COURSE ARCHITECT'S cost. C. The CITY will retain a qualified project engineer to assist the GOLF COURSE ARCHITECT with soil surveys,lake sealing, flood-way information, erosion control measures and requirements and potential drainage issues and concerns. PHASE 3 CONSTRUCTION BID OR NEGOTIATION PHASE: A. Plans and specifications will be submitted for bids in accordance with procedures reasonably acceptable to the CITY. B. The GOLF COURSE ARCHITECT will help coordinate the golf course • construction bid process,conduct a pre-bid meeting, tabulate bids received, make an analysis of the construction proposal and recommend the contract awards. C. The GOLF COURSE ARCHITECT will provide one (1) set of plans and specifications to each qualified contractor approved to bid on the project. Additional sets requested will be sent upon approval of the CITY, billable to the CITY at the GOLF COURSE ARCHITECT'S cost. 2 A�* PHASE 4 CONSTRUCTION REVIEW PHASE A. During the construction period, the GOLF COURSE ARCHITECT will visit the site to ensure that the integrity of the design intent is accomplished. Site visits will be made regularly throughout the construction of the golf course (20 — 30 site visits estimated). B. The length of time required to construct nine (9) holes is estimated at six (6) to seven (7) months. It is dependent upon what time of year the project begins and the CITY'S overall timing for the project. C. The GOLF COURSE ARCHITECT will prepare estimates for progress payments, make final inspection of the construction when the work has been completed and approve final payment. • dohs EXHIBIT B PROJECT SCHEDULE EXHIBIT C GOLF COURSE ARCHITECT ' S HOURLY AND PER DIEM FEE SCHEDULE Principal $100 . 00 per hour $1, 000 . 00 per day Associate $ 45 . 00 per hour $ 450 . 00 per day Staff $ 20 . 00 per hour $ 200 . 00 per day