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08-103
Resolution No. 08-103 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH SHALES McNUTT CONSTRUCTION FOR THE DESIGN AND CONSTRUCTION OF THE VETERANS MEMORIAL PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED that Olufemi Folarin,City Manager,and Diane Robertson, City Clerk,be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with Shales McNutt Construction for the design and construction of the Veterans Memorial Project, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: April 9, 2008 Adopted: April 9, 2008 Vote: Yeas: 6 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk { AIA Document A191' - 1996 Part 2 Standard Form of Agreement Between Owner and Design/Builder Part 2 Agreement TABLE OF ARTICLES PART 2 AGREEMENT ADDITIONS AND DELETIONS: 1. GENERAL PROVISIONS The author of this document 2. OWNER has added information 3. DESIGN/BUILDER needed Eor its completion. 4. TIME The author may also have 5. PAYMENTS revised the text of the 6. PROTECTION OF PERSONS AND PROPERTY original AIA standard form. 7. INSURANCE AND BONDS An Additions and Deletions 8. CHANGES IN THE WORK Report that notes added 9. CORRECTION OF WORK information as well as 10. DISPUTE RESOLUTION-MEDIATION AND ARBITRATION revisions to the standard 11. MISCELLANEOUS PROVISIONS form text is available from 12. TERMINATION OF THE AGREEMENT the author and should be 13. BASIS OF COMPENSATION reviewed. 14. OTHER CONDITIONS AND SERVICES This document has important legal consequences. AGREEMENT made as of the 7th day ofApr i lin the year of Two Thousand and Consultation with an Eight attorney is encouraged with respect to its completion or modification. BETWEEN the Owner: City of Elgin 150 Dexter Cour Elgin, IL 60120 and the Design/Builder: Shales McNutt Construction 425 Renner Drive Elgin, IL 60123 For the following Project: City of Elgin Veternaz ' s Memorial ELECTRONIC COPYING of any portion of this AIA Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of The architectural services described in Article 3 will be provided by the following person this document. or entity who is lawfully licensed to practice architecture: AIA Document A191. - 1996 Part 2. Copyright © 1985, 1996 by The American Institute of Architects. All rights reserved. 1 This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: (1847215795) Name and address Registration Number Relationship to Design/Builder None Hitchcock Design Group Normal structural, mechanical and electrical engineering services will be provided contractually through the Architect . Name,address and discipline Registration Number Relationship to Design/Builder The Owner and the Design/Builder agree as set forth below. AIA Document A191n' - 1996 Part 2. Copyright e 1985, 1996 by The American Institute of Architects. All rights reserved. - _ 2 _-. This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.10001590E4_1 which expires on 2/2/06, and is not for resale. User Notes: (1847216796) 4 TERMS AND CONDITIONS—PART 2 AGREEMENT ARTICLE 1 GENERAL PROVISIONS §1.1 BASIC DEFINITIONS §1.1.1 The Contract Documents consist of the Part 1 Agreement to the extent not modified by this Part 2 Agreement, this Part 2 Agreement, the Design/Builder's Proposal and written addenda to the Proposal identified in Article 14, the Construction Documents approved by the Owner in accordance with Section 3.2.3 and Modifications issued after execution of this Part 2 Agreement. A Modification is a Change Order or a written amendment to this Part 2 Agreement signed by both parties,or a Construction Change Directive issued by the Owner in accordance with Section 8.3. §1.1.2 The term "Work"means the construction and services provided by the Design/Builder to fulfill the Design/Builder's obligations. §1.2 EXECUTION,CORRELATION AND INTENT §1.2.1 It is the intent of the Owner and Design/Builder that the Contract Documents include all items necessary for proper execution and completion of the Work. The Contract Documents are complementary,and what is required by one shall be as binding as if required by all;performance by the Design/Builder shall be required only to the extent consistent with and reasonably inferable from the Contract Documents as being necessary to produce the intended results. Words that have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. §1.2.2 If the Design/Builder believes or is advised by the Architect or by another design professional retained to provide services on the Project that implementation of any instruction received from the Owner would cause a violation of any applicable law,the Design/Builder shall notify the Owner in writing.Neither the Design/Builder nor the Architect shall be obligated to perform any act which either believes will violate any applicable law. §1.2.3 Nothing contained in this Part 2 Agreement shall create a contractual relationship between the Owner and any person or entity other than the Design/Builder. §1.3 OWNERSHIP AND USE OF DOCUMENTS §1.3.1 Drawings,specifications,and other documents and electronic data furnished by the Design/Builder are instruments of service.The Design/Builder's Architect and other providers of professional services shall retain all common law,statutory and other reserved rights, including copyright in those instruments of service furnished by them. Drawings,specifications, and other documents and electronic data are furnished for use solely with respect to this Part 2 Agreement. The Owner shall be permitted to retain copies, including reproducible copies,of the drawings,specifications,and other documents and electronic data furnished by the Design/Builder for information and reference in connection with the Project except as provided in Sections 1.3.2 and 1.3.3. §1.3.2 Drawings,specifications,and other documents and electronic data furnished by the Design/Builder shall not be used by the Owner or others on other projects, for additions to this Project or for completion of this Project by others,except by agreement in writing and with appropriate compensation to the Design/Builder,unless the Design/Builder is adjudged to be in default under this Part 2 Agreement or under any other subsequently executed agreement. §1.3.3 If the Design/Builder defaults in the Design/Builder's obligations to the Owner,the Architect shall grant a license to the Owner to use the drawings,specifications,and other documents and electronic data furnished by the Architect to the Design/Builder for the completion of the Project,conditioned upon the Owner's execution of an agreement to cure the Design/Builder's default in payment to the Architect for services previously performed and to indemnify the Architect with regard to claims arising from such reuse without the Architect's professional involvement. §1.3.4 Submission or distribution of the Design/Builder's documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the rights reserved in Section 1.3.1. AIA Document A191. — 1996 Part 2. Copyright e 1985, 1996 by The American Institute of Architects. All rights reserved. 3 • This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order NJo.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: (1847216796) { ARTICLE 2 OWNER §2.1 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall examine documents submitted by the Design/Builder and shall render decisions in a timely manner and in accordance with the schedule accepted by the Owner. The Owner may obtain independent review of the Contract Documents by a separate architect, engineer,contractor or cost estimator under contract to or employed by the Owner. Such independent review shall be undertaken at the Owner's expense in a timely manner and shall not delay the orderly progress of the Work. §2.2 The Owner may appoint an on-site project representative to observe the Work and to have such other responsibilities as the Owner and Design/Builder agree in writing. §2.3 The Owner shall cooperate with the Design/Builder in securing building and other permits, licenses and inspections. The Owner shall not be required to pay the fees for such permits, licenses and inspections unless the cost of such fees is excluded from the Design/Builder's Proposal. §2.4 The Owner shall furnish services of land surveyors,geotechnical engineers and other consultants for subsoil, air and water conditions, in addition to those provided under the Part I Agreement,when such services are deemed necessary by the Design/Builder to properly carry out the design services required by this Part 2 Agreement. §2.5 The Owner shall disclose, to the extent known to the Owner,the results and reports of prior tests,inspections or investigations conducted for the Project involving:structural or mechanical systems; chemical,air and water pollution;hazardous materials; or other environmental and subsurface conditions. The Owner shall disclose all information known to the Owner regarding the presence of pollutants at the Project's site. §2.6 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including such auditing services as the Owner may require to verify the Design/Builder's Applications for Payment. §2.7 Those services, information,surveys and reports required by Sections 2.4 through 2.6 which are within the Owner's control shall be furnished at the Owner's expense,and the Design/Builder shall be entitled to rely upon the accuracy and completeness thereof,except to the extent the Owner advises the Design/Builder to the contrary in writing. §2.8 If the Owner requires the Design/Builder to maintain any special insurance coverage,policy, amendment,or rider,the Owner shall pay the additional cost thereof,except as otherwise stipulated in this Part 2 Agreement. §2.9 If the Owner observes or otherwise becomes aware of a fault or defect in the Work or nonconformity with the Design/Builder's Proposal or the Construction Documents,the Owner shall give prompt written notice thereof to the Design/Builder. §2.10 The Owner shall,at the request of the Design/Builder,prior to execution of this Part 2 Agreement and promptly upon request thereafter, furnish to the Design/Builder reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Contract. §2.11 The Owner shall communicate with persons or entities employed or retained by the Design/Builder through the Design/Builder,unless otherwise directed by the Design/Builder. ARTICLE 3 DESIGN/BUILDER §3.1 SERVICES AND RESPONSIBILITIES §3.1.1 Design services required by this Part 2 Agreement shall be performed by qualified architects and other design professionals. The contractual obligations of such professional persons or entities are undertaken and performed in the interest of the Design/Builder. §3.1.2 The agreements between the Design/Builder and the persons or entities identified in this Part 2 Agreement, and any subsequent modifications,shall be in writing. These agreements, including financial arrangements with respect to this Project,shall be promptly and fully disclosed to the Owner upon request. AIA Document A191"' - 1996 Part 2. Copyright ® 1985, 1996 by The American Institute of Architects. All rights reserved. 4 This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires on 2,2/06, and is not for resale. User Notes: (1897216796) s §3.1.3 The Design/Builder shall be responsible to the Owner for acts and omissions of the Design/Builder's employees,subcontractors and their agents and employees,and other persons,including the Architect and other design professionals,performing any portion of the Design/Builder's obligations under this Part 2 Agreement. §3.2 BASIC SERIVICES §3.2.1 The Design/Builder's Basic Services are described below and in Article 14. §3.2.2 The Design/Builder shall designate a representative authorized to act on the Design/Builder's behalf with respect to the Project. §3.2.3 The Design/Builder shall submit Construction Documents for review and approval by the Owner. Construction Documents may include drawings, specifications, and other documents and electronic data setting forth in detail the requirements for construction of the Work,and shall: .1 be consistent with the intent of the Design/Builder's Proposal; .2 provide information for the use of those in the building trades; and .3 include documents customarily required for regulatory agency approvals. §3.2 4 The Design/Builder,with the assistance of the Owner,shall file documents required to obtain necessary approvals of governmental authorities having jurisdiction over the Project. §3.2.5 Unless otherwise provided in the Contract Documents,the Design/Builder shall provide or cause to be provided and shall pay for design services,labor,materials,equipment,tools,construction equipment and machinery,water,heat,utilities, transportation and other facilities and services necessary for proper execution and completion of the Work,whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. §3.2.6 The Design/Builder shall be responsible for all construction means,methods,techniques,sequences and procedures,and for coordinating all portions of the Work under this Part 2 Agreement. §3.2.7 The Design/Builder shall keep the Owner informed of the progress and quality of the Work. §3.2.8 The Design/Builder shall be responsible for correcting Work which does not conform to the Contract Documents. §3.2.9 The Design/Builder warrants to the Owner that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents,that the construction will be free from faults and defects, and that the construction will conform with the requirements of the Contract Documents. Construction not conforming to these requirements,including substitutions not properly approved by the Owner,shall be corrected in accordance with Article 9. §3.2.10 The Design/Builder shall pay all sales,consumer,use and similar taxes which had been legally enacted at the time the Design/Builder's Proposal was first submitted to the Owner, and shall secure and pay for building and other permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Work which are either customarily secured after execution of a contract for construction or are legally required at the time the Design/Builder's Proposal was first submitted to the Owner. §3.2.11 The Design/Builder shall comply with and give notices required by laws,ordinances,rules,regulations and lawful orders of public authorities relating to the Project. §3.2.12 The Design/Builder shall pay royalties and license fees for patented designs,processes or products. The Design/Builder shall defend suits or claims for infringement of patent rights and shall hold the Owner harmless from loss on account thereof,but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer is required by the Owner. However, if the Design/Builder has reason to believe the use of a required design,process or product is an infringement of a patent,the Design/Builder shall be responsible for such loss unless such information is promptly furnished to the Owner. AIA Document A191s' — 1996 Part 2. Copyright 0 1985, 1996 by The American Institute of Architects. All rights reserved. 5 • - This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: (1847216796) 1 §3.2.13 The Design/Builder shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under this Part 2 Agreement. At the completion of the Work,the Design/Builder shall remove from the site waste materials,rubbish,the Design/Builder's tools,construction equipment,machinery, and surplus materials. §3.2.14 The Design/Builder shall notify the Owner when the Design/Builder believes that the Work or an agreed upon portion thereof is substantially completed. If the Owner concurs,the Design/Builder shall issue a Certificate of Substantial Completion which shall establish the Date of Substantial Completion,shall state the responsibility of each party for security,maintenance,heat, utilities,damage to the Work and insurance,shall include a list of items to be completed or corrected and shall fix the time within which the Design/Builder shall complete items listed therein. Disputes between the Owner and Design/Builder regarding the Certificate of Substantial Completion shall be resolved in accordance with provisions of Article 10. §3.2.15 The Design/Builder shall maintain at the site for the Owner one record copy of the drawings,specifications, product data,samples,shop drawings, Change Orders and other modifications,in good order and regularly updated to record the completed construction. These shall be delivered to the Owner upon completion of construction and prior to final payment. §3.3 ADDITIONAL SERVICES §3.3.1 The services described in this Section 3.3 are not included in Basic Services unless so identified in Article 14, and they shall be paid for by the Owner as provided in this Part 2 Agreement, in addition to the compensation for Basic Services.The services described in this Section 3.3 shall be provided only if authorized or confirmed in writing by the Owner. §3.3.2 Making revisions in drawings,specifications, and other documents or electronic data when such revisions are required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents or electronic data. §3.3.3 Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such Work. §3.3.4 Providing services in connection with a public hearing,arbitration proceeding or legal proceeding,except where the Design/Builder is a party thereto. §3.3.5 Providing coordination of construction performed by the Owner's own forces or separate contractors employed by the Owner,and coordination of services required in connection with construction performed and equipment supplied by the Owner. §3.3.6 Preparing a set of reproducible record documents or electronic data showing significant changes in the Work made during construction. §3.3.7 Providing assistance in the utilization of equipment or systems such as preparation of operation and maintenance manuals,training personnel for operation and maintenance,and consultation during operation. ARTICLE 4 TIME §4.1 Unless otherwise indicated,the Owner and the Design/Builder shall perform their respective obligations as expeditiously as is consistent with reasonable skill and care and the orderly progress of the Project. §4.2 Time limits stated in the Contract Documents are of the essence.The Work to be performed under this Part 2 Agreement shall commence upon receipt of a notice to proceed unless otherwise agreed and, subject to authorized Modifications,Substantial Completion shall be achieved on or before the date established in Article 14. §4.3 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so the Owner can occupy or utilize the Work for its intended use. AIA Document A191s' — 1996 Part 2. Copyright 0 1985, 1996 by The American Institute of Architects. All rights reserved. : 6 This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: (1947216796) • i §4.4 Based on the Design/Builder's Proposal,a construction schedule shall be provided consistent with Section 4.2 above. §4.5 If the Design/Builder is delayed at any time in the progress of the Work by an act or neglect of the Owner, Owner's employees,or separate contractors employed by the Owner,or by changes ordered in the Work,or by labor disputes,fire,unusual delay in deliveries, adverse weather conditions not reasonably anticipatable, unavoidable casualties or other causes beyond the Design/Builder's control,or by delay authorized by the Owner pending arbitration,or by other causes which the Owner and Design/Builder agree may justify delay,then the Contract Time shall be reasonably extended by Change Order. ARTICLE 5 PAYMENTS §5.1 PROGRESS PAYMENTS §5.1.1 The Design/Builder shall deliver to the Owner itemized Applications for Payment in such detail as indicated in Article 14. §5.1.2 Within ten(10)days of the Owner's receipt of a properly submitted and correct Application for Payment,the Owner shall make payment to the Design/Builder. §5.1.3 The Application for Payment shall constitute a representation by the Design/Builder to the Owner that the design and construction have progressed to the point indicated,the quality of the Work covered by the application is in accordance with the Contract Documents,and the Design/Builder is entitled to payment in the amount requested. §5.1.4 Upon receipt of payment from the Owner,the Design/Builder shall promptly pay the Architect,other design professionals and each contractor the amount to which each is entitled in accordance with the terms of their respective contracts. §5.1.5 The Owner shall have no obligation under this Part 2 Agreement to pay or to be responsible in any way for payment to the Architect, another design professional or a contractor performing portions of the Work. §5.1.6 Neither progress payment nor partial or entire use or occupancy of the Project by the Owner shall constitute an acceptance of Work not in accordance with the Contract Documents. §5.1.7 The Design/Builder warrants that title to all construction covered by an Application for Payment will pass to the Owner no later than the time of payment. The Design/Builder further warrants that upon submittal of an Application for Payment all construction for which payments have been received from the Owner shall be free and clear of liens,claims, security interests or encumbrances in favor of the Design/Builder or any other person or entity performing construction at the site or furnishing materials or equipment relating to the construction. §5.1.8 At the time of Substantial Completion,the Owner shall pay the Design/Builder the retainage, if any, less the reasonable cost to correct or complete incorrect or incomplete Work.Final payment of such withheld sum shall be made upon correction or completion of such Work. §5.2 FINAL PAYMENTS §5.2.1 Neither final payment nor amounts retained, if any,shall become due until the Design/Builder submits to the Owner: (1)an affidavit that payrolls,bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or Owner's property might be responsible or encumbered(less amounts withheld by the Owner)have been paid or otherwise satisfied; (2)a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days'prior written notice has been given to the Owner; (3)a written statement that the Design/Builder knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; (4)consent of surety, if any,to final payment; and(5)if required by the Owner,other data establishing payment or satisfaction of obligations, such as receipts,releases and waivers of liens,claims, security interests or encumbrances arising out of the Contract,to the extent and in such form as may be designated by the Owner. If a contractor or other person or entity entitled to assert a lien against the Owner's property refuses to furnish a release or waiver required by the Owner,the Design/Builder may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made,the AZA Document A191s — 1996 Part 2. Copyright CO 1985, 1996 by The American Institute of Architects. All rights reserved. ^. _ 7 This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: (1847216796) Design/Builder shall indemnify the Owner for all loss and cost, including reasonable attorneys'fees incurred as a result of such lien. §5.2.2 When the Work has been completed and the contract fully performed,the Design/Builder shall submit a final application for payment to the Owner,who shall make final payment within 30 days of receipt. §5.2.3 The making of final payment shall constitute a waiver of claims by the Owner except those arising from: .1 liens, claims,security interests or encumbrances arising out of the Contract and unsettled; .2 failure of the Work to comply with the requirements of the Contract Documents; or .3 terms of special warranties required by the Contract Documents. §5.2.4 Acceptance of final payment shall constitute a waiver of all claims by the Design/Builder except those previously made in writing and identified by the Design/Builder as unsettled at the time of final Application for Payment. §5.3 INTEREST PAYMENTS §5.3.1 Payments due the Design/Builder under this Part 2 Agreement which are not paid when due shall bear interest from the date due at the rate specified in Article 13, or in the absence of a specified rate, at the legal rate prevailing where the Project is located. ARTICLE 6 PROTECTION OF PERSONS AND PROPERTY §6.1 The Design/Builder shall be responsible for initiating,maintaining and providing supervision of all safety precautions and programs in connection with the performance of this Part 2 Agreement. §6.2 The Design/Builder shall take reasonable precautions for the safety of,and shall provide reasonable protection to prevent damage, injury or loss to: (1)employees on the Work and other persons who may be affected thereby;(2) the Work and materials and equipment to be incorporated therein,whether in storage on or off the site,under care, custody,or control of the Design/Builder or the Design/Builder's contractors; and(3)other property at or adjacent thereto, such as trees,shrubs,lawns,walks,pavements,roadways,structures and utilities not designated for removal relocation or replacement in the course of construction. §6.3 The Design/Builder shall give notices and comply with applicable laws,ordinances,rules,regulations and lawful orders of public authorities bearing on the safety of persons or property or their protection from damage, injury or loss. §6.4 The Design/Builder shall promptly remedy damage and loss(other than damage or loss insured under property insurance provided or required by the Contract Documents)to property at the site caused in whole or in part by the Design/Builder,a contractor of the Design/Builder or anyone directly or indirectly employed by any of them,or by anyone for whose acts they may be liable. ARTICLE 7 INSURANCE AND BONDS §7.1 DESIGN/BUILDER'S LIABILITY INSURANCE §7.1.1 The Design/Builder shall purchase from and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located,such insurance as will protect the Design/Builder from claims set forth below which may arise out of or result from operations under this Part 2 Agreement by the Design/Builder or by a contractor of the Design/Builder,or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: .1 claims under workers'compensation,disability benefit and other similar employee benefit laws that are applicable to the Work to be performed; .2 claims for damages because of bodily injury,occupational sickness or disease,or death of the Design/Builder's employees; .3 claims for damages because of bodily injury,sickness or disease,or death of persons other than the Design/Builder's employees; .4 claims for damages covered by usual personal injury liability coverage which are sustained(1)by a person as a result of an offense directly or indirectly related to employment of such person by the Design/Builder or(2)by another person; AIA Document A191'. — 1996 Part 2- Copyright ® 1985, 1996 by The American Institute of Architects. All rights reserved. 8 F - .. This draft was produced by AIA software at 10:05,04 on 02/10/2005 under Order No.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: 11847216796) .5 claims for damages,other than to the Work itself,because of injury to or destruction of tangible property, including loss of use resulting therefrom; .6 claims for damages because of bodily injury,death of a person or property damage arising out of ownership,maintenance or use of a motor vehicle; and .7 claims involving contractual liability insurance applicable to the Design/Builder's obligations under Section 11.5. §7.1.2 The insurance required by Section 7.1.1 shall be written for not less than limits of liability specified in this Part 2 Agreement or required by law,whichever coverage is greater.Coverages,whether written on an occurrence or claims-made basis,shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment. §7.1.3 Certificates of Insurance acceptable to the Owner shall be delivered to the Owner immediately after execution of this Part 2 Agreement. These Certificates and the insurance policies required by this Section 7.1 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final payment,an additional certificate evidencing continuation of such coverage shall be submitted with the application for final payment. Information concerning reduction of coverage shall be furnished by the Design/Builder with reasonable promptness in accordance with the Design/Builder's information and belief. §7.2 OWNER'S LIABILITY INSURANCE §7.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. Optionally,the Owner may purchase and maintain other insurance for self-protection against claims which may arise from operations under this Part 2 Agreement.The Design/Builder shall not be responsible for purchasing and maintaining this optional Owner's liability insurance unless specifically required by the Contract Documents. §7.3 PROPERTY INSURANCE §7.3.1 Unless otherwise provided under this Part 2 Agreement, the Owner shall purchase and maintain, in a company or companies authorized to do business in the jurisdiction in which the principal improvements are to be located,property insurance upon the Work to the full insurable value thereof on a replacement cost basis without optional deductibles. Such property insurance shall be maintained,unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance,until final payment has been made or until no person or entity other than the Owner has an insurable interest in the property required by this Section 7.3 to be insured,whichever is earlier. This insurance shall include interests of the Owner,the Design/Builder, and their respective contractors and subcontractors in the Work. §7.3.2 Property insurance shall be on an all-risk policy form and shall insure against the perils of fire and extended coverage and physical loss or damage including,without duplication of coverage,theft,vandalism,malicious mischief,collapse, falsework,temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for the services and expenses of the Design/Builder's Architect and other professionals required as a result of such insured loss. Coverage for other perils shall not be required unless otherwise provided in the Contract Documents. §7.3.3 If the Owner does not intend to purchase such property insurance required by this Part 2 Agreement and with all of the coverages in the amount described above,the Owner shall so inform the Design/Builder prior to commencement of the construction. The Design/Builder may then effect insurance which will protect the interests of the Design/Builder and the Design/Builder's contractors in the construction, and by appropriate Change Order the cost thereof shall be charged to the Owner. If the Design/Builder is damaged by the failure or neglect of the Owner to purchase or maintain insurance as de-scribed above,then the Owner shall bear all reasonable costs properly attributable thereto. §7.3.4 Unless otherwise provided,the Owner shall purchase and maintain such boiler and machinery insurance required by this Part 2 Agreement or by law,which shall specifically cover such insured objects during installation and until final acceptance by the Owner. This insurance shall include interests of the Owner,the Design/Builder,the Design/Builder's contractors and subcontractors in the Work, and the Design/Builder's Architect and other design professionals.The Owner and the Design/Builder shall be named insureds. AIA Document A191'. - 1996 Part 2. Copyright ® 1985, 1996 by The American Institute of Architects. All rights reserved. 9 This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_I which expires on 2/2/06, and is not for resale. User Notes: (1847216796) §7.3.5 A loss insured under the Owner's property insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds,as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section 7.3.10.The Design/Builder shall pay contractors their shares of insurance proceeds received by the Design/Builder,and by appropriate agreement,written where legally required for validity,shall require contractors to make payments to their subcontractors in similar manner. §7.3.6 Before an exposure to loss may occur,the Owner shall file with the Design/Builder a copy of each policy that includes insurance coverages required by this Section 7.3. Each policy shall contain all generally applicable conditions,definitions,exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire until at least 30 days'prior written notice has been given to the Design/Builder. §7.3.7 If the Design/Builder requests in writing that insurance for risks other than those described herein or for other special hazards be included in the property insurance policy,the Owner shall, if possible,obtain such insurance,and the cost thereof shall be charged to the Design/Builder by appropriate Change Order. §7.3.8 The Owner and the Design/Builder waive all rights against each other and the Architect and other design professionals,contractors,subcontractors, agents and employees,each of the other,for damages caused by fire or other perils to the extent covered by property insurance obtained pursuant to this Section 7.3 or other property insurance applicable to the Work,except such rights as they may have to proceeds of such insurance held by the Owner as trustee. The Owner or Design/Builder,as appropriate, shall require from contractors and subcontractors by appropriate agreements,written where legally required for validity,similar waivers each in favor of other parties enumerated in this Section 7.3.The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification,contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. §7.3.9 If required in writing by a party in interest, the Owner as trustee shall, upon occurrence of an insured loss, give bond for proper performance of the Owner's duties.The cost of required bonds shall be charged against proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds so received,which the Owner shall distribute in accordance with such agreement as the parties in interest may reach,or in accordance with an arbitration award in which case the procedure shall be as provided in Article 10. If after such loss no other special agreement is made,replacement of damaged Work shall be covered by appropriate Change Order. §7.3.10 The Owner as trustee shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing,within five(5)days after occurrence of loss to the Owner's exercise of this power; if such objection be made,the parties shall enter into dispute resolution under procedures provided in Article 10. If distribution of insurance proceeds by arbitration is required, the arbitrators will direct such distribution. §7.3.11 Partial occupancy or use prior to Substantial Completion shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise.The Owner and the Design/Builder shall take reasonable steps to obtain consent of the insurance company or companies and shall not,without mutual written consent,take any action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of coverage. §7.4 LOSS OF USE OF INSURANCE §7.4.1 The Owner,at the Owner's option,may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards,however caused. The Owner waives all rights of action against the Design/Builder for loss of use of the Owner's property, including consequential losses due to fire or other hazards,however caused. ARTICLE 8 CHANGES IN THE WORK §8.1 CHANGES §8.1.1 Changes in the Work may be accomplished after execution of this Part 2 Agreement,without invalidating this Part 2 Agreement,by Change Order,Construction Change Directive,or order for a minor change in the Work, subject to the limitations stated in the Contract Documents. AIA Document A191a' - 1996 Part 2. Copyright 0 1985, 1996 by The American Institute of Architects. All rights reserved. • . 10 This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: (1847216796) §8.1.2 A Change Order shall be based upon agreement between the Owner and the Design/Builder; a Construction Change Directive may be issued by the Owner without the agreement of the Design/Builder;an order for a minor change in the Work may be issued by the Design/Builder alone. §8.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents,and the Design/Builder shall proceed promptly,unless otherwise provided in the Change Order, Construction Change Directive,or order for a minor change in the Work. §8.1.4 If unit prices are stated in the Contract Documents or subsequently agreed upon,and if quantities originally contemplated are so changed in a proposed Change Order or Construction Change Directive that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or the Design/Builder,the applicable unit prices shall be equitably adjusted. §8.2 CHANGE ORDERS §8.2.1 A Change Order is a written instrument prepared by the Design/Builder and signed by the Owner and the Design/Builder,stating their agreement upon all of the following: .1 a change in the Work; .2 the amount of the adjustment, if any,in the Contract Sum; and .3 the extent of the adjustment, if any, in the Contract Time. §8.2.2 If the Owner requests a proposal for a change in the Work from the Design/Builder and subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse the Design/Builder for any costs incurred for estimating services,design services or preparation of proposed revisions to the Contract Documents. §8.3 CONSTRUCTION CHANGE DIRECTIVES §8.3.1 A Construction Change Directive is a written order prepared and signed by the Owner,directing a change in the Work prior to agreement on adjustment, if any,in the Contract Sum or Contract Time,or both. §8.3.2 Except as otherwise agreed by the Owner and the Design/Builder, the adjustment to the Contract Sum shall be determined on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including the expenditures for design services and revisions to the Contract Documents. In case of an increase in the Contract Sum, the cost shall include a reasonable allowance for overhead and profit. In such case, the Design/Builder shall keep and present an itemized accounting together with appropriate supporting data for inclusion in a Change Order.Unless otherwise provided in the Contract Documents,costs for these purposes shall be limited to the following: .1 costs of labor,including social security,old age and unemployment insurance, fringe benefits required by agreement or custom,and workers'compensation insurance; .2 costs of materials,supplies and equipment, including cost of transportation,whether incorporated or consumed; .3 rental costs of machinery and equipment exclusive of hand tools,whether rented from the Design/Builder or others; .4 costs of premiums for all bonds and insurance permit fees,and sales,use or similar taxes; .5 additional costs of supervision and field office personnel directly attributable to the change;and fees paid to the Architect,engineers and other professionals. §8.3.3 Pending final determination of cost to the Owner, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Design/Builder to the Owner for deletion or change which results in a net decrease in the Contract Sum will be actual net cost. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of the net increase, if any,with respect to that change. §8.3.4 When the Owner and the Design/Builder agree upon the adjustments in the Contract Sum and Contract Time, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. AIA Document A191n' — 1996 Part 2. Copyright 0 1985, 1996 by The American Institute of Architects. All rights reserved. 11 - This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: (1847216796) §8.4 MINOR CHANGES IN THE WORK §8.4.1 The Design/Builder shall have authority to make minor changes in the Construction Documents and construction consistent with the intent of the Contract Documents when such minor changes do not involve adjustment in the Contract Sum or extension of the Contract Time.The Design/Builder shall promptly inform the Owner,in writing,of minor changes in the Construction Documents and construction. §8.5 CONCEALED CONDITIONS §8.5.1 If conditions are encountered at the site which are(1)subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents, or(2)unknown physical conditions of an unusual nature which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than 21 days after first observance of the conditions.The Contract Sum shall be equitably adjusted for such concealed or unknown conditions by Change Order upon claim by either party made within 21 days after the claimant becomes aware of the conditions. §8.6 REGULATORY CHANGES §8.6.1 The Design/Builder shall be compensated for changes in the construction necessitated by the enactment or revisions of codes, laws or regulations subsequent to the submission of the Design/Builder's Proposal. ARTICLE 9 CORRECTION OF WORK §9.1 The Design/Builder shall promptly correct Work rejected by the Owner or known by the Design/Builder to be defective or failing to conform to the requirements of the Contract Documents,whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Design/Builder shall bear costs of correcting such rejected Work, including additional testing and inspections. §9.2 If,within one(1)year after the date of Substantial Completion of the Work or,after the date for commencement of warranties established in a written agreement between the Owner and the Design/Builder,or by terms of an applicable special warranty required by the Contract Documents,any of the Work is found to be not in accordance with the requirements of the Contract Documents,the Design/Builder shall correct it promptly after receipt of a written notice from the Owner to do so unless the Owner has previously given the Design/Builder a written acceptance of such condition. §9.3 Nothing contained in this Article 9 shall be construed to establish a period of limitation with respect to other obligations which the Design/Builder might have under the Contract Documents. Establishment of the time period of one(1)year as described in Section 9.2 relates only to the specific obligation of the Design/Builder to correct the Work,and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced,nor to the time within which proceedings may be commenced to establish the Design/Builder's liability with respect to the Design/Builder's obligations other than specifically to correct the Work. §9.4 If the Design/Builder fails to correct nonconforming Work as required or fails to carry out Work in accordance with the Contract Documents,the Owner,by written order signed personally or by an agent specifically so empowered by the Owner in writing, may order the Design/Builder to stop the Work,or any portion thereof,until the cause for such order has been eliminated; however,the Owner's right to stop the Work shall not give rise to a duty on the part of the Owner to exercise the right for benefit of the Design/Builder or other persons or entities. §9.5 If the Design/Builder defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within seven (7)days after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness,the Owner may give a second written notice to the Design/Builder and, seven(7)days following receipt by the Design/Builder of that second written notice and without prejudice to other remedies the Owner may have,correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Design/Builder,the costs of correcting such deficiencies. If the payments then or thereafter due the Design/Builder are not sufficient to cover the amount of the deduction, the Design/Builder shall pay the difference to the Owner. Such action by the Owner shall be subject to dispute resolution procedures as provided in Article 10. AIA Document A191. - 1996 Part 2. Copyright ® 1985, 1996 by The American Institute of Architects. All rights reserved. : 12 - - - This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864-1 which expires on 2/2/06, and rs not for resale. User Notes: (1847216796) ARTICLE 10 DISPUTE RESOLUTION—MEDIATION AND ARBITRATION §10.1 Claims,disputes or other matters in question between the parties to this Part 2 Agreement arising out of or relating to this Part 2 Agreement or breach thereof shall be subject to and decided by mediation or arbitration. Such mediation or arbitration shall be conducted in accordance with the Construction Industry Mediation or Arbitration Rules of the American Arbitration Association currently in effect. §10.2 In addition to and prior to arbitration,the parties shall endeavor to settle disputes by mediation. Demand for mediation shall be filed in writing with the other party to this Part 2 Agreement and with the American Arbitration Association. A demand for mediation shall be made within a reasonable time after the claim,dispute or other matter in question has arisen. In no event shall the demand for mediation be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statutes of repose or limitations. §10.3 Demand for arbitration shall be filed in writing with the other party to this Part 2 Agreement and with the American Arbitration Association. A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statutes of repose or limitations. §10.4 An arbitration pursuant to this Article may be joined with an arbitration involving common issues of law or fact between the Design/Builder and any person or entity with whom the Design/Builder has a contractual obligation to arbitrate disputes. No other arbitration arising out of or relating to this Part 2 Agreement shall include,by consolidation,joinder or in any other manner,an additional person or entity not a party to this Part 2 Agreement or not a party to an agreement with the Design/Builder,except by written consent containing a specific reference to this Part 2 Agreement signed by the Owner,the Design/Builder and any other person or entities sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim,dispute or other matter in question not described in the written consent or with a person or entity not named or described therein.The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties to this Part 2 Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. §10.5 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE 11 MISCELLANEOUS PROVISIONS §11.1 Unless otherwise provided, this Part 2 Agreement shall be governed by the law of the place where the Project is located. §11.2 SUBCONTRACTS §11.2.1 The Design/Builder,as soon as practicable after execution of this Part 2 Agreement, shall furnish to the Owner in writing the names of the persons or entities the Design/Builder will engage as contractors for the Project. §11.3 WORK BY OWNER OR OWNER'S CONTRACTORS §11.3.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces,and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under conditions of insurance and waiver of subrogation identical to the provisions of this Part 2 Agreement. If the Design/Builder claims that delay or additional cost is involved because of such action by the Owner, the Design/Builder shall assert such claims as provided in Section 11.4. §11.3.2 The Design/Builder shall afford the Owner's separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities and shall connect and coordinate the Design/Builder's construction and operations with theirs as required by the Contract Documents. §11.3.3 Costs caused by delays or by improperly timed activities or defective construction shall be borne by the party responsible therefor. AIA Document A191. - 1996 Part 2. Copyright CO 1985, 1996 by The American Institute of Architects. All rights reserved. - - 13 This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864 1 which expires on 2/2/06, and is not for resale. User Notes: (1847216796) §11.4 CLAIMS FOR DAMAGES §11.4.1 If either party to this Part 2 Agreement suffers injury or damage to person or property because of an act or omission of the other party,of any of the other party's employees or agents, or of others for whose acts such party is legally liable,written notice of such injury or damage,whether or not insured,shall be given to the other party within a reasonable time not exceeding 21 days after first observance.The notice shall provide sufficient detail to enable the other party to investigate the matter. If a claim of additional cost or time related to this claim is to be asserted,it shall be filed in writing. §11.5 INDEMNIFICATION §11.5.1 To the fullest extent permitted by law,the Design/Builder shall indemnify and hold harmless the Owner, Owner's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys'fees,arising out of or resulting from performance of the Work, provided that such claim,damage,loss or expense is attributable to bodily injury,sickness,disease or death,or to injury to or destruction of tangible property(other than the Work itself)including loss of use resulting therefrom,but only to the extent caused in whole or in part by negligent acts or omissions of the Design/Builder,anyone directly or indirectly employed by the Design/Builder or anyone for whose acts the Design/Builder may be liable,regardless of whether or not such claim,damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate,abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 11.5. §11.5.2 In claims against any person or entity indemnified under this Section 11.5 by an employee of the Design/Builder,anyone directly or indirectly employed by the Design/Builder or anyone for whose acts the Design/Builder may be liable, the indemnification obligation under this Section 11.5 shall not be limited by a limitation on amount or type of damages,compensation or benefits payable by or for the Design/Builder under workers'compensation acts,disability benefit acts or other employee benefit acts. §11.6 SUCCESSORS AND ASSIGNS §11.6.1 The Owner and Design/Builder,respectively,bind themselves,their partners,successors, assigns and legal representatives to the other party to this Part 2 Agreement and to the partners, successors and assigns of such other party with respect to all covenants of this Part 2 Agreement.Neither the Owner nor the Design/Builder shall assign this Part 2 Agreement without the written consent of the other.The Owner may assign this Part 2 Agreement to any institutional lender providing construction financing, and the Design/Builder agrees to execute all consents reasonably required to facilitate such an assignment. If either party makes such an assignment, that party shall nevertheless remain legally responsible for all obligations under this Part 2 Agreement, unless otherwise agreed by the other party. §11.7 TERMINATION OF PROFESSIONAL DESIGN SERVICES §11.7.1 Prior to termination of the services of the Architect or any other design professional designated in this Part 2 Agreement,the Design/Builder shall identify to the Owner in writing another architect or other design professional with respect to whom the Owner has no reasonable objection,who will provide the services originally to have been provided by the Architect or other design professional whose services are being terminated. §11.8 EXTENT OF AGREEMENT §11.8.1 This Part 2 Agreement represents the entire agreement between the Owner and the Design/Builder and supersedes prior negotiations,representations or agreements,either written or oral. This Part 2 Agreement may be amended only by written instrument and signed by both the Owner and the Design/Builder. ARTICLE 12 TERMINATION OF THE AGREEMENT §12.1 TERMINATION BY THE OWNER §12.1.1 This Part 2 Agreement may be terminated by the Owner upon 14 days'written notice to the Design/Builder in the event that the Project is abandoned. If such termination occurs, the Owner shall pay the Design/Builder for Work completed and for proven loss sustained upon materials,equipment, tools,and construction equipment and machinery, including reasonable profit and applicable damages. §12.1.2 If the Design/Builder defaults or persistently fails or neglects to carry out the Work in accordance with the Contract Documents or fails to perform the provisions of this Part 2 Agreement,the Owner may give written notice that the Owner intends to terminate this Part 2 Agreement. If the Design/Builder fails to correct the defaults, failure AIA Document A191. - 1996 Part 2. Copyright ® 1985, 1996 by The American Institute of Architects. All rights reserved. - , 14 This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires en 2/2/06, and is not for resale. User Notes: (1847216796) or neglect within seven(7)days after being given notice,the Owner may then give a second written notice and, after an additional seven(7)days,the Owner may without prejudice to any other remedy terminate the employment of the Design/Builder and take possession of the site and of all materials,equipment,tools and construction equipment and machinery thereon owned by the Design/Builder and finish the Work by whatever method the Owner may deem expedient. If the unpaid balance of the Contract Sum exceeds the expense of finishing the Work and all damages incurred by the Owner,such excess shall be paid to the Design/Builder. If the expense of completing the Work and all damages incurred by the Owner exceeds the unpaid balance, the Design/Builder shall pay the difference to the Owner.This obligation for payment shall survive termination of this Part 2 Agreement. §12.2 TERMINATION BY THE DESIGN/BUILDER §12.2.1 If the Owner fails to make payment when due,the Design/Builder may give written notice of the Design/ Builder's intention to terminate this Part 2 Agreement. If the Design/Builder fails to receive payment within seven (7)days after receipt of such notice by the Owner,the Design/Builder may give a second written notice and,seven (7)days after receipt of such second written notice by the Owner, may terminate this Part 2 Agreement and recover from the Owner payment for Work executed and for proven losses sustained upon materials,equipment,tools,and construction equipment and machinery,including reasonable profit and applicable damages. ARTICLE 13 BASIS OF COMPENSATION The Owner shall compensate the Design/Builder in accordance with Article 5, Payments,and the other provisions of this Part 2 Agreement as described below. §13.1 COMPENSATION §13.1.1 For the Design/Builder's performance of the Work,as described in Section 3.2 and including any other services listed in Article 14 as part of Basic Services, the Owner shall pay the Design/Builder in current funds the Contract Sum as follows: Direct Construction Costal/alternates $596,466 .00 SMC Fee 45 , 302 .00 SMC General Liability Factor 3 , 760.00 Hitchcock Design Fee 89 ,000.00 SMC Pre-Con Fee 12 ,000. 00 Total $746 ,528 .00 §13.1.2 For Additional Services, as described in Section 3.3 and including any other services listed in Article 14 as Additional Services,compensation shall be as follows: Negotiated at time of occurrence. §13.2 REIMBURSABLE EXPENSES §13.2.1 Reimbursable Expenses are in addition to the compensation for Basic and Additional Services,and include actual expenditures made by the Design/Builder and the Design/Builder's employees and contractors in the interest of the Project,as follows: §13.2.2 FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of One and six hundredths ( 1.06 )times the amounts expended. §13.3 INTEREST PAYMENT §13.3.1 The rate of interest for past due payments shall be as follows: ( )monthly ARTICLE 14 OTHER CONDITIONS AND SERVICES §14.1 The Basic Services to be performed shall be commenced as of the date of this contract and, subject to authorized adjustments and to delays not caused by the Design/Builder, Substantial Completion shall be achieved by 11/11/08 . §14.2 The Basic Services beyond those described in Article 3 are as follows: N/A AIA Document A191'. - 1996 Part 2. Copyright ® 1985, 1996 by The American Institute of Architects. All rights reserved. 15 . — ._- This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: (1847216796) §14.3 Additional Services beyond those described in Article 3 are as follows: N/A §14.4 The Design/Builder shall submit an Application for Payment on the last day of each month. §14.5 The Design/Builder's Proposal includes the following documents: Attached in Addendum No. 3: Shales McNutt proposal cover letter dated March 25 , 2008 Hitchcock Design Group Planview and electric schematic dated March 4, 2008 Hitchcock Design Group proposal and scope of services dated March 25 , 2008 Shales McNutt Construction scope of work dated March 25, 2008 Title Shales McNutt Construction Bud2eet Report dated March 25, 2008. This Agreement entered into as of the day and year first written above. OWNER DESIGN/ UILDER „,„44, (Signature( (Signature) 01ulemi elann, Ci /t?4na5er 1k 5G4.0-1s (Printed name and title) (Printed name and title) NOTE: Four amendments attached. AZA Document A191n' - 1996 Part 2. Copyright 0 1985, 1996 by The American Institute of Architects. A11 rights reserved. 16 This draft was produced by AIA software at 10:05:04 on 02/10/2005 under Order No.1000159864_1 which expires on 2/2/06, and is not for resale. User Notes: (1847216796) a AMENDMENT TO AIA DOCUMENT A191 - 1996 PART 2 AIA Document A191 - 1996 Part 2 (the "Agreement" is amended as follows . This amendment shall take precedence over any conflict or inconsistency between it and the Agreement . 1 . Bottom of page l and the beginning of page 2 , the person or entity named on page 2 who will be providing architectural services is form, is hereinafter referred to as "Architect" in the agreement . 2 . Paragraph 1 . 1 . 1 , the reference to Part I is deleted. 3 . Paragraph 1 .2 . 1 , amend "shall be required only to the extent consistent with and reasonably inferable from the contract documents" to "shall be required in a manner which is consistent with and reasonably inferable from the contract documents . " 4 . Amend Section 1 . 3 to provide as follows : "The results of the Design/Builder' s services under this agreement shall be the exclusive property of the Owner, and all documents (including, without limitation, all writings, drawings , blueprints, pictures, plans, specifications, reportings, computer or machine readable data, and all copies or reproductions thereof) which describe or relate to the services performed or to be performed pursuant to this agreement shall be the exclusive property of the Owner and shall be delivered to the Owner upon request (except for one copy which may be retained by the Design/Builder for its confidential files) . No articles, papers, treatises or presentations related to or in any way based upon or associated with the services performed pursuant to this agreement shall be presented or submitted for publication without the prior written consent of the Owner. It is agreed that the results of the Design/Builder (s) services and the work product provided under this agreement are not intended or represented to be suitable for reuse by the Owner at any project not contemplated by this agreement, and such reuse shall be without liability to Design/Builder. " 5 . At paragraph 2 . 1, amend "avoid unreasonable delay in the orderly and sequential progress" to "avoid unreasonable delay, to the best of such authorized representative ' s ability, in the orderly and sequential progress" . 6 . Amend paragraph 2 .4 to provide "Design/Builder shall furnish services of land surveyors, and other consultants for subsoil , air and water conditions, when such services are necessary to properly carry out the design services required by this Part II agreement at Design/Builder' s cost . The City of Elgin will be responsible for the costs associated with the additional geotechnical testing and field observations recommended in Terracon' s report . " 7. Delete paragraph 2 . 6 : 8 . Amend paragraph 2 . 7 to provide, "Such information, surveys or reports as are within the owner' s possession and control shall be furnished to Design/Builder upon Design/Builder' s reasonable request . " 9. Delete paragraph 2 . 10 . 10 . At paragraph 4 . 5, delete "an act or neglect of the Owner, Owner' s employees, or separate contractors employed by the Owner, or" ; also amend "authorized by the Owner pending arbitration" to "authorized by the Owner in writing" . 11 . At paragraph 5 . 1 . 2 amend "10" to "30" . 12 . Delete paragraphs 5 . 3 and 5 . 3 . 1 . 13 . Delete paragraphs 7 .2 and 7 .4 . 1 . 14 . At paragraph 8 . 1 .2, delete "An order for a minor change in the work may be issued by the Design/Builder alone" . 15 . Add to the end of paragraph 8. 1 .2, "All change orders and all changes in the work or modifications to this agreement shall be in accordance with all applicable laws. " 16 . At paragraph 8 .4 . 1, amend "extension of the contract time" to "extension of the contract time upon Owner' s reasonable written approval " . 17 . At paragraph 8 . 5 . 1, delete the last sentence . 18 . Delete Article 10 . 19 . At paragraph 9 . 5 , delete the last sentence . 20 . Amend paragraph 11 . 1 to provide, "This agreement shall be subject to and governed by the laws of the State of Illinois . Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be in the Circuit Court of Kane County, Illinois . 21 . At paragraph 11 . 3 . 1, amend the paragraph to provide, "The Owner reserves the right to perform construction or operations related to the Project with the Owner' s own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site. " 22 . At paragraph 11 .4 . 1, amend "if either party to this Part II agreement suffers injury" to "if Design/Builder suffers injury" . Also, amend "the other party" to "Owner" at each point at which it appears . 23 . At paragraph 12 . 1 . 2 , delete "persistently" . 24 . Delete paragraph 12 . 2 . 1 . 25 . At paragraph 13 . 3 . 1, insert "0%" in the blank. 26 . Paragraph 14 . 6 is inserted: "The terms of this agreement shall be severable . In the event any of the terms or provisions of this agreement are deemed to be void or otherwise • unenforceable for any reason, the remainder of this agreement shall remain in full force and effect . " 27 . Paragraph 14 .7 is inserted: "This agreement shall not be construed so as to create a joint venture, partnership, employment or other agency relationship between the parties hereto except as may be specifically provided for herein. " IN WITNESS WHEREOF, this Amendment #1 has been signed by authorized representatives of the Design/Builder and the City Of Elgin. DESIGN/BUILDER CITY OF ELGIN BY: (4-G BY: ,4741e; ./G S•t1' Name : �a�+ t S��GS Name : Veni l FvlQ rs n Title : Liv • Title: �� �- YY)GtnctG�Q r Date: 4/1/tjg Date: tlr, C:14 aoUo8 SECOND AMENDMENT TO AIA DOCUMENT A191 - 1996 PART 2 The Agreement and the Amendment to the Agreement are amended by this Second Amendment as set forth below. The Second Amendment shall take precedence over any conflict or inconsistency between it and the Agreement and the Amendment. A2-1. Add to the end of Paragraph 1.2.3, "except as provided in 3.1.3." A2-2. Amendment Paragraph 5 is hereby deleted. A2-3. The information, surveys, and reports referred to in Paragraph 2.7 and Amendment Paragraph 8 are hereby requested by Design/Builder from Owner. A2-4. DESIGN LIABILITY. Paragraph 3.1.3 of the Agreement is deleted and the following is substituted in its place: 3.1.3. The Design/Builder shall be responsible to the Owner, except as limited herein below, for acts and omissions of the Design/Builder's employees, subcontractors and their agents and employees, and other persons, including the Architect and other design professionals, performing any portion of the Design/Builder's obligations under this Part 2 Agreement, except as to professional design services by Architect and other design professionals, for which Design/Builder's liability shall be limited, as follows: 3.1.3.a. Contractor Not Liable for Architect's Errors. In consideration of Contractor's entering into the Contract, Owner hereby agrees that Contractor shall not be liable or responsible in any manner whatsoever for any claims, damages, errors, or omissions arising out of the professional services to be performed by the Architect (as defined in the Contract) or other design professionals under the Contract, whether through indemnity or otherwise. 3.1.3.b. Owner's Sole Recourse is Against Architect. Owner hereby agrees that Owner shall not look to Contractor for recourse as to any such claims, damages, errors, or omissions, and Owner's sole recourse shall be against the Architect or other design professionals performing such professional services and any insurance to be carried by the Architect pursuant to this Contract. 3.1.3.c. Contractor's Cooperation with Owner: Contractor agrees to fully cooperate with Owner in pursuing its rights hereunder and under the Contract, including, without Page 1 of 3 limitation, (i) bringing any legal action necessary to enforce Owner's or Contractors's rights against the Architect or other design professionals, or (ii) assignment to Owner of any rights or remedies contractor may have against the Architect or other design professionals relating to any such claims, damages, errors, or omissions. 3.1.3.d Limitation Applies Only to Design Liability. Other than recourse with respect to claims, damages, errors, or omissions relating to the Architect or other design professionals arising out of the professional design services to be performed under the Contract, this Clause shall not constitute a waiver of any other remedy which Owner may have against Contractor for any other failure of Contractor to perform in accordance with the Contact or any other agreement or contract between Owner and Contractor. A2-5. The last sentence of 3.2.14 shall read, "be resolved by mutual agreement of the parties". The second to last sentence of 7.3.9 shall end after the word "reach". Paragraph 7.3.10 shall end after the phrase "exercise of this power". A2-6. CONCEALED CONDITIONS. Paragraph 8.5.1 of the Agreement and Amendment Paragraph 17 are modified by adding the following sentences at the end of the paragraph: 8.5.1... Concealed conditions shall include, in addition to the matters set forth above in this Paragraph 8.5.1, environmental contamination of the job site by hazardous waste or other hazardous environmental conditions, not reported in the Contract Documents and shall collectively be referred to as, Concealed Conditions. Concealed Conditions shall give rise to a Change Order to be negotiated reasonably and promptly between Owner and Design/Builder. Notwithstanding anything in the Contract Documents to the contrary, material environment remediation of the site is not a part of Design/Builder's work unless specifically set forth as not being a Concealed Condition under this Paragraph 8.5.1 in the Contract Documents. A-2-7. REMEDIES/DEFAULT. Paragraph 10 of the Agreement and Paragraph 18 of the Amendment shall be modified to provide as follows: 10.1 The remedies provided for in Paragraph A2-6., or elsewhere in the Agreement or amendments shall be cumulative. In the event of a default of this Agreement or the Amendments, the non-defaulting party shall have any remedy available to it in law or equity. A2-8. Paragraph 11.4.1 and Amendment Paragraph 22 are hereby deleted. A2-9. NONPAYMENT BY OWNERS. Paragraph 12.2.1 of the Agreement and Paragraph 24 of the Amendment shall be modified by adding the following provision as Paragraph 12.2.1 of the Agreement. 12.2.1 It shall be a default by Owner under this agreement, if Owner fails to make payments when due,provided Design/Builder has sent a written demand for payment and more than 30 days have passed since receipt of the demand for payment by Owner. In the event of a Page 2 of 3 default by Owner for non-payment, Design/Builder may terminate this Agreement effective upon 30 days written notice of termination to Owner. A2-10. Paragraph 14.8 shall be inserted as follows: The insurance limits required by ARTICLE 7 shall be as set forth on the Certificate of Liability Insurance issued by Lundstrom Insurance attached hereto as Exhibit 1. IN WITNESS WHEREOF, this Second Amendment has been signed by authorized representatives of the Design/Builder and the Owner. DESIGN/BUILDER: OWNER: SHALES MCNUTT, LLC CITY OF ELGIN By: By: 6 ,Zei/ot 44 /-Sie1 Name: Jokt, Name: ('IV 401! I/Q ri'n Title: 60C) Title: C( y—y ►'x anq_502-K". Date: (OD(6. Date: _ 4'p ri 1 9, a 008 Page 3 of 3 '• h Amendment#3 to AIA Contract A191 regarding Veteran's Memorial Page 1 of 12 SMCshalesmcnutt CONSTRUCTION March 25, 2008 Mr. Jim Bell City of Elgin 150 Dexter Ct. Elgin Illinois 60120 Re: Elgin Veterans Memorial Proposal Dear Jim, Thank you for the opportunity to work with the City to build this Veterans Memorial. This will be a wonderful addition to the City's river front. As you know we have been working with Hitchcock Design Group to create an acceptable concept and then establish the costs for design and construction associated with the concept. We have collected this information and attached it to this letter. The attachments include: 1. The current concept drawing of the project dated March 4, 2008 prepared by Hitchcock Design Group 2. Design Scope of Services for the project prepared by Hitchcock Design Group 3. 2008 Construction Scope of Services with Budget Report prepared by Shales McNutt Construction The total cost for the design and construction of this project is$705,028. Although this work is much better defined in the attached documents, I wanted to highlight some significant items to make sure that we are providing the scope of work that you anticipated. 1. The design costs include the design of all elements of the memorial being built in 2008—not the full master plan. The work at the rivers edge is shown in the master plan but is considered a future phase. Also note that the Gateway Arch and Landscape Irrigation are listed as Add Alternates—not included in the above cost. 2. Neither the design nor the construction includes any water feature. 3. The city of Elgin had authorized Hitchcock Design Group to develop the Veterans Memorial Schematic Design and the Library's Teaching Gardens Master Plan revisions under separate order. Therefore this cost ($35,800) is not included in the project cost above. 4. We have included surveying, testing, and geotechnical(Terracon)work within our cost. 5. Although we will submit all designs for review through the City of Elgin, we have not carried any allowances for the fees and costs of these permit and reviews. Similarly, we do not have compensatory storage fees/ storm water detention fees-in-lieu-of-storage fees included in our cost. 6. We are anticipating the same contract that we used for the Fulton Street Parking Deck will be used for this project and are in the process of pulling that together. Please review this information and all of the attachments. We would welcome the opportunity to sit down with you to review to make sure that we are all well coordinated. Please let me know what day and time would be convenient for you. Again thank you for the opportunity to work with the City on this wonderful project. Thank you, John M. Shales CONSTRUCTION MANAGEMENT GENERAL CONTRACTING DESIGN BUILD 425 Renner Drive P 1847)622 1214 shelesmcnutt.com Elgin,tl8nols 60123 F (847)622 1224 _ Amendment#3 to AIA Contract Al 9 .....;,:, i,--,i,irs:-.: - . ,-;,. -i- porial -- Page 2 of 12 11 ..c..-4,-,-.1 •1.--'-...,j C' I'• I.':•, I :at', ....`,11- :itot . ,..:•- '''''•:..4‘ ttr--- :ebV,I' ,„410 I:• i .' •-• 4.yasIZ.1,.....7 , , Is.;16 ilt* ...:!slith 4.,:_,R.•,,......-:, ..''' me- ' --,,,,-:-,,i-uv.,,,:,,,,, .: 'IT) -.!''...-:44-%OP'';'''...!...,-, ail • re — / ,' • : , .. S I CRUST. -. :.-.-,:,4,,•..,.,,' ::•-'.;*'.,c.; „--, • tkir, ,,,. 0 .,...,..,:,..,,„,,, • , ,,,,, . ..,,.. , ..„. . r. . ;.--, 1 • , i I •f 'urdi 3 r..1111 .1‘, 4 :,•A„:'-, , 0 a "..,--, ' itlfi , j .0 ! o m - i f M „:- .:.;:.,..4-::t"--1•, 'dr ' ir ,44.1.0 r 41 ri iikv&l.Ilirilep Alw.V kv‘ii I _ 0 vs l'_i-:: :'iji' '', r 1,;° M .,',-Stt---ci _. . — m ...& 3 o -,.. ._.., . 1 i'''':=,' . i L'''' iiiiii) , t „4„,.. • • _ ,_, !' .0. ,A -; - .1,1 .., •_ , I , .,,•• ,-;. -,,•.•.i.j!. ,.. . , STAFF -....Ac,'4., • , ENMANCE 1 # II 7. 01 1 . _._ 1 --- Li ,. 1 _ i.-- iw 1 ill FAII,41Ly 1-1,--- ..,_ 4s, r , , , AREA e 0 r+-4-4-, 111 ( I 1:0 . Page 3 of 12 Amendment#3 to AIA Contract A191 regarding Veteran's Memorial iii r i IL aO6 it- � Existing Elg i Libary parlcsng lot It ..^ — I , G-- 0 Existing trees Proposed crnamentat trees J-4 :\ —` `+. Servce 8 anon columns wan lags MIFF * ' +1'4 x 5 " G *! 9enches �' = � `� � -aa. '"� i" * � Specialty pa ng "�. y,; .-- W r \ , } w' '', ,e,.. ' ''°' s C+`"''r.ic` COt�ted concrete_ ,.,.. A gym" 'f7i Yw; .-,,,..4„1,-- -- -=' - .� ?' 4' Ex song p stnan bike pati? . - , sssiwil sem. 14 "MIK �- rTivetf!or t plitze ilk A.s�_ P ,� y "Ior anungs Fax Raw III City ofEigin Vetans' Memorial 1liiclttr�:E. Alternative Concepter - 2008 Construction tx.is;l,cit�N;,, Ecgcn,ltl.rt �s • Amendment#3 to AIA Contract A191 regarding Veteran's Memorial Page 4 of 12 Hitchcock Design Group Creating Better('laces°' March 25,2008 Mr.John Shales Mr.John McNutt Shales McNutt Construction 425 Renner Drive Elgin,IL 60123 RE: Veterans'Memorial—Elgin,Illinois Dear Mr.Shales and Mr.McNutt: We are pleased to provide this letter and the attached scope of services to you for the proposed Veterans'Memorial project in Elgin. This letter is intentionally brief;we wanted to get the fee and scope information to you as soon as possible for you to wrap up your proposal to the City of Elgin in order to get the process started. Based on our conversations on Monday,March 24,we have written our scope and developed our fees based on the design and construction of the initial phase of the project that would be constructed in 2008. This proposal does not include the design and engineering work needed to complete the elements in the overall master plan(e.g.the riverwall and related shoreline work). Based on this scaled back scope of design work,our lump sum fees for this project will be$86,500 and will not be exceeded without prior permission. In addition,we have established a budget for direct expenses(printing,travel and other customary expenses)of$2,500 and will not be exceeded without prior permission. We understand that time is of the essence on this project;we are prepared to dedicate the HDG resources to this project to meet the deadlines for construction in 2008. Once the overall contract between you and the City is approved,we can discuss the contractual relationship and format between Shales McNutt and Hitchcock Design Group. If you have any questions,please feel free to call myself or Mark Underwood in the Naperville office at(630)961-1787. If need be,we can meet with you and the City of Elgin to outline our proposal for clarification. We look forward to working with both of you on this project. Sincerely, Hitchcock Design Group ` 1 • • I • Richard C.Hayden ASLA, LARB Principal Attachment—Scope of Services cc: Rick Hitchcock,Mark Underwood,Hitchcock Design Group J.\Marketing\07 Existing Clients\500's\0524 Elgin,City of\Veterans Memorial,Teaching Gardens,&Shoreline Restoration\DD-CD ProposalUtr 20080325 Shales McNutt.doc 180 North Wacker Drive,Suite 003 Chicago,Illinois 60606 T 312.634.2100 F 312.634.2101 www.hitchcockdesigngroup.com Amendment#3 to AIA Contract A191 regarding Veteran's Memorial Page 5 of 12 Hitchcock Design Group Creating Better Placesa Scope of Services Final Design and Engineering A. Design Development We anticipate that we will be advancing the current master plan to a design development level in this task including all design elements in the anticipated 2008 construction package. This scope of work does not include design elements that would complete the master plan(e.g.the riverwall and other related items). With the above understanding,we will: 1. Using the current schematic plan as the basis for beginning work,finalize the size,horizontal and vertical geometry,structure,materials and/or finish,as appropriate,for the proposed improvements,such as but not limited to: a. drainage b. walks and other pedestrian surfaces c. service/emergency access,loading and other vehicular surfaces d. wall structures as part of the memorial e. utility modifications f. slope stabilization g. turf and landscaped areas h. site furnishings including flagpole locations i. sign locations(Note: we anticipate that we would incorporate the logos for the various armed services and some associated wording; development of extensive text or specialized signage graphics are considered an additional service.) j. lighting elements including pedestrian and accent lighting for the memorial k. entry gateway arch feature 2. Obtain and review the geotechnical data and incorporate the structural engineering recommendations including foundation designs for walls and structures. 3. Obtain topographic survey data for the project area. Boundary surveys are not included in this scope. 4. Refine the technical requirements related to the proposed improvements, including: a. hydrological and environmental engineering: i. floodway permitting: We assume that the project is clearly outside of the regulatory floodway and that no hydraulic studies will be required. ii. compensatory storage computations: We will prepare the computations;it is anticipated that compensatory storage for the project(if any)will be provided in an off-site facility. iii. stormwater detention: It is anticipated that this project will comply with the fee in lieu requirement and that detention will not be required. iv. wetland/waters permitting: It is anticipated that wetlands most likely are not present within the project area and that the Fox River is limited to its ordinary high water mark. We propose to investigate the site for wetlands and identify the ordinary high water mark of the Fox River and then prepare a submittal requesting a Letter of No Objection for the US Army Corps of Engineers, v. other anticipated jurisdictional agency requirements (Note: at this time it is not known if the jurisdictional agencies will require hydraulic analysis or floodway remapping. If required, these items will be considered extra services) 5. Document the design on previously prepared base maps and supplementary drawings as may be appropriate. 6. Prepare outline specifications,including the products,materials and finishes of each component or system. City of Elgin Page 1 of 4 March 25,2008 Veterans Memorial 221 West Jefferson Avenue Naperville,Illinois 60540 T 630.961.1787 F 630.961.9925 www.hitchcockdesigngroup.com • Amendment#3 to AIA Contract A191 regarding Veteran's Memorial Page 6 of 12 7. Review the drawings,specifications,product data and material samples with: a. client representatives and other team members b. jurisdictional agencies 8. Based on the review of the documents by the Client and agencies,revise the drawings and supporting materials as may be required. 9. Prepare plans,applications,and submit information to jurisdictional agencies for required construction permit(s). Anticipated permits required include: a. Wetland and Waters Permits: i. Army Corps of Engineers(ACOE): Letter of No Objection b. City of Elgin Permits: i. building and development permits as required 10. Based on the review by the jurisdictional agencies,make minor revisions as may be required to facilitate jurisdictional approvals and permit(s). We anticipate that Shales McNutt Construction(SMC)will: 11. Generate quantity takeoffs and construction cost estimates 12. Submit documents to regulatory agencies for initial permit reviews including the City of Elgin. B. Construction Documents We anticipate that these documents will be developed for the 2008 construction work area. Following approval, we will: 1. Finalize the graphic and written documentation that will be used to bid and construct the improvements including: a. cover sheet including project identification and other general title information b. general notes sheet(including notes,index,standards,alignment,ties and bench marks) c. temporary access,storage,erosion and sedimentation control plan d. existing conditions and removals plan e. utility modification and improvement plan f. grading and drainage plan g. layout plan h. materials call-out plan i. structural plan(memorial wall and gateway feature) j. planting plan k. irrigation plan I. furnishings and amenities plan m. electrical plan n. construction details as needed 2. Finalize the written documentation that will be used to price and construct the improvements including: a. Technical specifications 3. Review the documents with client representatives and other team members 4. Make minor revisions as may be required. 5. Review the pre-final documents(75%review)with: a. the HDG I Shales McNutt team b. relevant City departments(1 meeting) 6. Make revisions as may be required. 7. Review the final documents(100%review)with: a. the HDG/Shales McNutt team b. relevant City departments(1 meeting) We anticipate that Shales McNutt Construction(SMC)will: 8. Generate quantity takeoffs and construction cost estimates. 9. Generate the final project manual to incorporate the technical specifications developed by HDG and its subconsultants. City of Elgin Page 2 of 4 March 25,2008 Veterans Memorial • Amendment#3 to AIA Contract A191 regarding Veteran's Memorial Page 7 of 12 10. Generate and submit the documents to the City of Elgin and the regulatory agencies for obtaining the necessary reviews and permits. C. Bidding and Negotiation Following approval,we will: 1. Provide one(1)set of contract documents for your reproduction for bidding and pricing. We anticipate that Shales McNutt Construction(SMC)will: 2. Generate quantity takeoffs and construction cost estimates. 3. Obtain and coordinate construction and materials subcontracts. 4. Generate all documentation needed to start construction of the project. D. Construction Phase Services We have budgeted for 96 staff hours during the construction phase of this project and are available to: 1. Attend bi-weekly construction meetings at the project site. 2. Review shop drawings and other submittals for the site elements. 3. Coordinate with Shales McNutt during the course of the project. 4. Participate in the pre-final walkthrough to assist SMC in the generation of a preliminary punch list. 5. Participate in a final walkthrough of the project improvements. We anticipate that Shales McNutt Construction(SMC)will: 6. Coordinate all construction activities of its forces,its subcontractors and suppliers. 7. Coordinate its efforts with the City of Elgin and the related entities(Library,etc.)during the course of construction. 8. Generate all construction related correspondence,between SMC,its subcontractors and suppliers. 9. Generate all pay requests including any requisite supporting documentation. General Project Administration We will manage the performance of our own work throughout the term of the contract by providing the following services: A. Communications 1. Schedule,create agendas and summarize the highlights of periodic meetings. 2. Rehearse,attend and present at public forums identified. 3. Collect and disseminate communications from other parties. 4. Periodically inform your representative about our progress. B. Schedules 1. Create,periodically update and distribute the project schedule. 2. Coordinate the activities of our staff and our consultants. C. Staffing 1. Select and assign staff members and/or consultants to appropriate tasks and services. 2. Prepare and administer consultant agreements. D. File Maintenance 1. Establish and maintain appropriate correspondence,financial,drawing and data files. 2. Obtain appropriate insurance certificates from consultants. 3. Maintain appropriate time and expense records. Additional Services City of Elgin Page 3 of 4 March 25,2008 Veterans Memorial V_1 __ • • Amendment#3 to AIA Contract A191 regarding Veteran's Memorial Page 8 of 12 We may provide additional services that are not included in the Basic Services,such as,but not limited to: 1. Revisions to previously-completed and approved phases of the Basic Services. 2. The services of additional consultants. 3. Meetings with you or presentations to other parties not specified in the Basic Services. 4. Detailed quantity estimates and/or construction cost opinions using data or formats other than our own. 5. Detailed written summaries of our work or our recommendations. 6. Services rendered after the time limitations set forth in this contract. 7. Services required due to the discovery of concealed conditions,actions of others,or other circumstances beyond our control. 8. Services required to restart the project if you suspend our work at your convenience for more than 90 days during the performance of our services. 9. Preparation of segregated or multiple contract bid sets or more than one owner/contractor agreement. 10. Services rendered after Final Acceptance of the Contractor's work or services rendered more than 60 days after Substantial Completion of the Contractor's work. Authorization If circumstances arise during our performance of the services outlined which we believe require additional services, we will promptly notify you about the nature,extent and probable additional cost of the additional services,and perform only such additional services following your written authorization. Deliverables-Final Design and Engineering A. Design Development 1. Final Plan view drawings divided into construction document sheets as needed 2. Plan view enlargements of specialty areas as necessary 3. Sections,elevations and other supporting graphics as necessary 4. Construction details in progress 5. Final construction phasing strategy diagram 6. Updated preliminary construction cost opinion B. Construction Documents 1. Construction document set including removals plans,layout plans,grading plans,planting plans, enlargement plans,construction details and general notes 2. Project manual including technical specifications(We anticipate that Shales McNutt will provide the general conditions and other related documents.) C. Bidding and Negotiation 1. One set of final construction documents for your reproduction and distribution 2. One copy of final construction manual for your reproduction and distribution Hitchcock Design Group will distribute summaries of all meetings,interviews and presentations in memo form. All plans and supporting graphics will be presented for review in black and white. All routine correspondence will be prepared in Microsoft word format. Graphic documents will be made available in PDF format for printing and distribution. All construction documents will be produced using the latest available version of AutoCAD. In fairness to us and you,we will only ask for reimbursement for printing costs that are associated with copies of the items that you request. City of Elgin Page 4 of 4 March 25,2008 Veterans Memorial ' Amendment#3 to AIA Contract A191 regarding Veteran's Memorial Page 9 of 12 shalesmcnutt CONSTRUCTION Scope of Work 3/25/08 Elgin—Veterans Memorial GENERAL 1. This proposal excludes the cost of building permits. 2. We assume the roadway just to the north of the existing parking lot will be used for site access. 3. We have included 1/2 time supervision for the project. 4. We have excluded winter conditions for the project. 5. We have not included costs for any impact fees. 6. We have excluded all work in the rivers floodway. DESIGN 1. We have included design services from Hitchcock Design Group. Please see attached Scope of Services. 2. We have included a topographic survey but have excluded a boundary survey 3. We have included an allowance of$4,500 for soil borings and geotechnical from Terracon. 4. We have included one color rendering. 5. This proposal does not include the design and engineering work needed to complete the elements in the overall master plan. ( e.g.the river wall and related shoreline work) TESTING AND INSPECTION 1. We include testing and inspection throughout the project this includes sub grade testing, soil compaction testing,concrete testing and monitoring and inspection,unit masonry testing and inspection. SURVEYING 1. We Include construction surveying and layout for the project. FENCING 1. We include temporary construction fence. 2. We have included silt fencing. SITE UTILITIES 1. We include 300 LF of 12"N-12 HDPE pipe for the new storm sewer. 2. We have included(3)36"Dia. storm manholes w/Ty8 grates. 3. We have included(1)24"Dia. Inlet w/Ty8 grate. 4. We have assumed connection to existing storm manhole. SITE WORK 1. We have included curb removal as required. 2. We have included the relocation of the berm to the empty lot just north of the site. 3. We include grading of the site to the proposed sub-grade. 4. We include excavation for the monument foundations. 5. We include backfill with granular fill 6. We include respread of topsoil on site. 1 of 2 ' Amendment#3 to AIA Contract A191 regarding Veteran's Memorial Page 10 of 12 CONCRETE 1. We have included the installation of 65 LF curb and gutter at the parking lot. 2. We have included 180 LF of barrier curb around the plaza. 3. We have included flag pole foundations. 4. We have included 90 LF of 3'6"x 3'6" foundation for the service branch wall 5. We have included sidewalks utilizing colored concrete on the perimeter of the plaza tying into the existing pedestrian/bike path. ASPHALT PAVING 1. We include the patching of the existing lot where the new curb is to be installed. LANDSCAPING 1. We have included(6)3.5"shade trees,(4)3"shade trees, (6) 8' ornamental trees 2. We have included perennials and evergreens in(2)concrete raised planters. 3. We have included Kentucky Blue Grass sod. 4. We have included approximately 3000 SF of"Unilock"Hollandstone or Brussel Block paver bricks. MASONRY 1. We have included the pre-cast stone Service Branch Wall on block backup. 2. We have included(4)flagpole bases 3. We have included(6)pre-cast stone monoliths on block backup. PAINTING 1. We have included the installation of the Anti-Graffiti coating on the pre-cast monument walls. FLAGPOLES 1. We have included(6)30' "Independence"concealed halyard cone tapered aluminum flagpoles. 2. We have included(4)35' "Independence"concealed halyard cone tapered aluminum flagpoles. 3. We have included(9) 5' x 8' flags(U.S., Illinois,P.O.W., Merchant Marines, Marine, Army,Navy, Air Force and Coast Guard) SIGNAGE 1. We have included an allowance of$25,000 for signs and plaques. SITE FURNISHINGS 1. We have included(8)benches with an allowance of$1,700 per bench 2. We have included(2)trash receptacles with an allowance of$1,400 per unit ELECTRICAL 1 We have included(2)light poles to match existing 2 We have included(24)ground up-lights 3 We have included (1) 100amp electrical panel with meter. 4 We have not included any Com Ed fees. ADD ALTERNATES 1 Entrance Gateway Allowance ADD$30,000 2 Landscape irrigation system. Assume tying into existing system ADD $11,500 _ a, t Report Ar��t�AIA Contract A191 regarding Veteran's Memorial Page 9� A Veterans Memorial - —_ -Total Description Quantity Amount 1100.00 GENERAL REQUIREMENTS 1101 00 Personnel Supervision 38.623 1131 00 Personnel Proy Managmnt 22,593 1511 00 Temp Utilities 1.617 1521 00 Temp Facilities 4 433 1591 00 Office Equipment 594 1701.10 Surveying 5.654 1705 00 Clean Up 10.176 1905.00 Allowances 8 481 GENERAL REQUIREMENTS 92,170 2100.00 SITEWORK 2100.10 Excavation Budgets 52 579 2100.40 Site Utilities Budgets 16 283 2100 50 Landscaping Budgets _ _ 95 152 SITEWORK 164,014 3000.00 CONCRETE 3000 10 Concrete Fnds./Slab Budget 61 179 CONCRETE 61,179 4000.00 MASONRY 4000 10 Masonry Budgets _ _ 79 9-13 MASONRY 79,943 9000.00 FINISHES 9000 20 PanUfm,Sh Budget 13.569 FINISHES 13,569 10000.00 SPECIALTIES 10000 10 Specialties Budgets 61 060 10752 00 Benches 17,,516 10780 00 Trash Receptacles 3,587 SPECIALTIES 84,163 16000.00 ELECTRICAL 16001 50 Electrical Budgets _ _ _ 59.929 ELECTRICAL 59,929 Page 1 3/25/2008 11:06 AM • vk. ; �!�..� AMAI AIA Contract Al91 regarding Veteran's Memorial Page t Report , Veterans Memorial Estimate Totals Description Amount Totals Percent of Total Labor 67,104 9 52% Material 28.329 4 02% Subcontract 459 533 65.18% Equipment Other 554,966 554,966 78.72 78.72% SMC Fee 45,302 6.43% SMC Gen.Liab. Factor 3.760 0 53% Hitchcock desmon Fee 89 000 12 62% SMC Pre-Con Cost 12 000 1 70% Total 705,028 Page 2 3/25/2008 11:06 AM jl 'L N r FOURTH AMENDMENT TO AIA DOCUMENT A191 regarding the Elgin Veteran' s Memorial The parties agree as follows : 1 . Paragraph 1 . 3 and amendment paragraph 4 in the amendment to AIA Document amending same are revised to read as follows: "4 . Amend Section 1 . 3 to read as follows : "The results of the Design/Builder' s services under this Agreement shall be the exclusive property of the Owner, and all documents (including without limitation, all drawings, renderings, designs, plans, specifications, and other documents and electronic data furnished by the Architect for the Project, and all other writings, drawings, blueprints, pictures, plans, specifications, reports, computer or machine readable data, and all copies or reproductions thereof, and all other drawings, specifications, and other documents and electronic data in any way relating to the Project) which describe or relate to the services performed or to be performed pursuant to this Agreement shall be the sole and exclusive property of the Owner and Owner shall have all common law, statutory and other rights thereto, including but not limited to copyright in such instruments of service including such documents and other materials . All such instruments of service including such documents and other materials shall be delivered to the Owner upon request (except for one copy which may be retained by the Design/Builder for its confidential files) . No articles, papers, treatises or presentations related to or in any way based upon or associated with the services performed to this Agreement shall be presented or submitted for publication without the prior written consent of the Owner. It is agreed that the results of the Design/Builder' s services and the work product provided under this Agreement are not intended or represented to be suitable for reuse by the Owner at any project not contemplated by this Agreement, and such reuse shall be without liability to Design/Builder. " 2 . Section 3 . 3 . 3 is amended by adding the following introductory phrase thereto: "Unless caused in whole or in part by negligent acts or omissions of the Design/Builder, anyone directly or indirectly employed by the Design/Builder or anyone for whose acts the Design/Builder may be liable, ... " 3. Section 5 . 2 . 3 is hereby deleted in its entirety. 4 . Section 13 . 2 . 1 is hereby amended by inserting "None" at the end of such section. Page 1 of 2 -; 5. The parties agree that the certificate of liability insurance shall name the City of Elgin as an additional named insured. Such certificate shall further provide that such insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the city. The insurance shall not provide any endorsement or modification to make the insurance excess over other available insurance, alternatively, if the insurance states it is excess of primary, it shall be primary with respect to the City of Elgin. Certificate of insurance is attached to this contract . 6. Section A2-4 of the second amendment to the AIA Document is hereby deleted. 7 . Section 1 . 1A of the third amendment to the AIA Document is hereby amended by adding prior to the "Any requirements stated..." sentence, the following additional paragraph: "Such new Veterans Memorial shall be designed and constructed in substantial conformance with the plan view and site plan prepared by Hitchcock Design Group, and furnished to the City of Elgin on or about March 5, 2008 and true copies of which are attached hereto. " 8 . The add alternates listed on page 10 of the Shales McNutt Construction Proposal in Amendment #3 to AIA Document consisting of 1) Entrance Gateway allowance of $30, 000, and 2) Landscape irrigation system allowance of $11, 500 are hereby included as part of the project, thereby increasing the Project total to the amount of $746, 528 . 9 . The Project is subject to the Illinois Prevailing Wage Act (820 ILCS 130/0 . 01, et seq. ) , as amended. The Design/Builder, and any subcontractor under the Design/Builder, shall comply with all aspects of the Prevailing Wage Act in relation to the Project, including, but not limited to, paying prevailing wages as required by such act. CITY OF ELGIN SHALES MCNUTT, LLC � Si�f B y: c vteet I Polar. n _Ac4, Ci� �fYtct n,Ci,c�e�4� Attest : Its : C QCT City C er : Page 2 of 2 i --\11)) - April 4, 2008 it;' y;. TO: Mayor and Members of the City Council { FROM: Olufemi Folarin, City Manager David Lawry, General Services Director SUBJECT: Agreement with Shales McNutt Construction for the Design and Construction of the Veterans Memorial Project PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider approving a design build contract with Shales McNutt Construction for the design and construction of the Veterans' Memorial for a lump sum amount of$746,528. RECOMMENDATION It is recommended that the City Council approve a design build contract with Shales McNutt Construction in the amount of$746,528 for the Veterans' Memorial. BACKGROUND In 2008, Hitchcock Design Group was contracted to complete a schematic design for the Veterans' Memorial. Although a previous design contest had selected the Cundiff design, the site for the memorial had to be relocated due to environmental issues. The site was moved to the Northwest side of the Gail Borden Library. Two options for the design were proposed to the Veterans' Memorial Committee by Hitchcock Design Group. The new library site limited the application of the Cundiff design. Hitchcock Design Alternate Number 1 added additional seating for ceremonies and included the other desired elements asked for by the committee members. The alternate design or concept 1, attached, was approved by the Veterans committee. Based on the approved schematic design, a design build construction solution is recommended for the project to ensure the completion date of November 11, 2008. Shales McNutt is recommended for the construction of the memorial based upon past experience with design build projects. The most recent experience includes the construction of the Fulton Street parking garage. Shales McNutt Construction is aware of the short construction time for this project and anticipates completion for November 11, 2008 for the Veterans Day celebration. Contract with Shales McNutt for the Design /Build Veterans Memorial April 4, 2008 Page 2 Shales McNutt Construction also submitted pricing for two alternates to be considered for the project. Alternate number one is for an entry gateway in the amount of $30,000. Alternate number 2 is for irrigation adjustments to the site in the amount of$11,500. It is recommended that the entry gateway and the irrigation alternates be included at this time. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED Gail Borden Library, Veterans Memorial Committee FINANCIAL IMPACT The base contract with Shales McNutt Construction is for the amount of$705,028 and includes Hitchcock Design Group's design fee of$89,000. The entry gateway alternate is $30,000. The irrigation alternative is $11,500. The cost of the contract with the two alternates will be for a not to exceed amount of$746,528. Funds for the award are located in the Riverboat Fund, account number 275-0000-791.92-36, "Buildings and Structures," project number 039666, Veterans Memorial, ($750,000 budgeted and $681,637 available). The remaining funding, $65,000, will need to be transferred from the Riverboat Fund, account number 275-0000-791.92-46, project number 239604, Emergency Sirens, ($220,000 budgeted and $220,000 available). LEGAL IMPACT Approval of this agreement is considered an exception to the procurement ordinance and a two- thirds vote by City Council will be required. ALTERNATIVES 1. The City Council may choose to approve the contract with Shales McNutt Construction in the amount of$746,528 including the gateway entry and irrigation alternatives. 2. The City Council may choose not to approve the agreement with Shales McNutt Construction. Respectfully submitted for Council consideration. JTB Attachment