09-101 Resolution No. 09-101
RESOLUTION
AUTHORIZING EXECUTION OF A TERMINATION AGREEMENT
WITH PLOTE CONSTRUCTION, INC.
REGARDING THE FRAZIER AVENUE RECONSTRUCTION PROJECT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that
Ed Schock, Mayor, and Diane Robertson, City Clerk, be and are hereby authorized and directed to
execute a Termination Agreement with Plote Construction,Inc.on behalf of the City of Elgin for the
Frazier Avenue Reconstruction Project,a copy of which is attached hereto and made a part hereof by
reference.
s/Ed Schock
Ed Schock, Mayor
Presented: April 29, 2009
Adopted: April 29, 2009
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
TERMINATION AGREEMENT
THIS AGREEMENT is made and entered into this 26thday of February , 2009, by and
between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the
"City"); and PLOTE CONSTRUCTION, INC., an Illinois corporation (hereinafter collectively
referred to as "Plote").
WHEREAS,the parties hereto have previously entered into an agreement dated July 5,2007
for a project commonly known as "Frazier Avenue Reconstruction" (hereinafter referred to as
"Agreement"); and
WHEREAS, the parties hereto have each determined it to be in their best interests to
terminate Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein,the sufficiency of which is hereby mutually acknowledged,the parties hereto hereby agree as
follows:
1. The above recitals are hereby incorporated into and made a part of this Agreement.
2. The Agreement between the parties hereto is hereby terminated, effective
immediately, and shall be of no further force or effect.
3. Neither parry hereto shall be entitled to any damages of whatsoever nature for any
reason arising out of or in connection with the Agreement or this Termination Agreement,except as
specifically provided for herein.
4. As and for total compensation to be paid to Plote pursuant to Agreement and this
Termination Agreement,and in complete accord and satisfaction of Agreement and this Termination
Agreement,City shall pay to Plote the total sum of$17,864.00 on or before June 1,2009.Plote shall
not be entitled to any further sum, damages, reimbursement, or any other compensation of
whatsoever nature for any reason.
5. Plote shall hold harmless, defend and indemnify City from and against any and all
lawsuits, claims for damages, liens of whatsoever nature, and any and all other liability of
whatsoever nature which may arise out of or in connection with either Agreement or this
Termination Agreement, including, but not limited to, attorney's fees. In the event that the
provisions of this paragraph are invoked by City,counsel for City shall be of City's choosing. The
provisions of this paragraph shall survive any termination of Agreement,and shall not be construed
or deemed to have been waived by City based on a claim of laches,estoppel or waiver of whatsoever
nature.
6. The terms of this Termination 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.
7. This Agreement shall not be construed so as to create a joint venture, partnership,
employment or other agency relationship between the parties hereto.
8. This Termination Agreement and Agreement are the only agreements between the
parties hereto regarding the subject matter hereof. There are no other agreements, either oral or
implied, between the parties hereto regarding the subject matter hereof.
9. This Termination 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.
10. Plote shall provide City with any and all waivers and documents, and shall fully
cooperate with City in obtaining and/or preparing and executing any such waivers and/or documents
2
as may be required by City to effect City's purposes pursuant to Agreement or this Termination
Agreement.
CITY OF ELGIN, an Illinois municipal PLOTE CONSTRUCTION INC.,
Corporation an Illinois corpo atio
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May Its Daniel R. Plote, President
Attest: Attest:
City Jerk
4y/eber,' 4sst. Secretary
F:\Legal DepQAgreemenQTermination Agr-Plote-Frazier Ave Lowering Project.doe
3
CERTIFICATION OF
ACTION BY THE JOINT WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
PLOTE CONSTRUCTION INC.
The undersigned, being the duly elected Secretary of
PLOTE CONSTRUCTION INC.
An Illinois corporation, hereby certifies that the following
resolutions were adopted pursuant to the provisions of Section
147 . 1 of the Business Corporation Act of the State of Illinois, and
said resolutions are still in full force and effect :
RESOLVED, that Richard A. Weber, as Assistant Secretary
is hereby authorized and empowered to make, execute,
deliver and enter into contracts and sign surety bonds on
behalf of the Corporation with all governmental agencies
including the Illinois Department of Transportation,
Illinois State Toll Highway Authority, as well as all
Counties, Villages and other units of local government
within the State of Illinois, as well as any non-
governmental parties .
A true record.
Jani Plote
Secretary
Date: January 2, 2009
CERTIFICATION OF
ACTION BY THE JOINT WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
PIOTE CONSTRUCTION INC.
The undersigned, being the duly elected Secretary of
PLOTE CONSTRUCTION INC.
An Illinois corporation, hereby certifies that. the following
'resolutions were adopted pursuant to the provisions of Section
147.1 of the Business -Corporation Act of the State of Illinois, and
said resolutions are -still in full force and effect'
RESOLVED, that Daniel R. Plote, as President is hereby
• authorized and empowered to make, execute, deliver and
enter into contracts and sign surety bonds on behalf of
the Corporation with all governmental agencies including
.the Illinois Department of Transportation, Illinois State
Toll Highway Authority, as well as all Counties, Villages
and.other units of local government within the State of
Illinois, as well as any non-governmental parties.
A true record. `
anice Plote
Secretary
Date: January .2, 2009
i f City of Elgin Memorandum
Date: May 1, 2009
To: Joe Evers, City Engineer
From: Jennifer Quinton, Deputy City Clerk
Subject: Resolution Nos. 09-101 through 09-103, Adopted at the April 29, 2009, Council
Meeting
Enclosed you will find the agreement listed below. Please distribute to the appropriate parties
and if needed, retain a copy for your records. If you have any questions please feel free to
contact our office 847-931-5660 and we will do our best to assist you. Thank you.
• Termination Agreement with Plote Construction, Inc. Regarding the Frazier Avenue
Reconstruction Project
• Change Order No. 1 and Final in the Contract with Martam Construction, Inc. for 2007
Center Business District Water Main Project
• Third Amendment Agreement with TranSystems Corporation for the Central Business
District Streetscape Project
April 2, 2009
TO: Mayor and Members of the City Council
FROM: Olufemi Folarin, City Manager
Joseph Evers, P.E., City Engineer
SUBJECT: Termination Agreement with Plote Construction Inc. for Frazier Avenue
Reconstruction Project
PURPOSE
The purpose of this memorandum is to provide the Mayor and members of the City Council with
information to consider the termination of the agreement with Plote Construction Inc. dated
February 26, 2008 for the Frazier Avenue Reconstruction Project.
RECOMMENDATION
It is recommended that the City Council terminate the agreement and direct staff to prepare the
necessary resolution.
BACKGROUND
At the June 27, 2007 City Council meeting, Council had authorized staff to enter into an
agreement with Plote Construction Inc. (Plote) to reconstruct Frazier Avenue. The project
included lowering the roadway under the recently reconstructed Metra bridge. The original
agreement with Plote had been reduced at the time of award to address budget concerns. The
reduction included the removal of water main, field offices and street lighting from Plote's
agreement. Plote was ultimately awarded an agreement worth $619,242.25.
During the initial phase of construction during the pavement removal and subgrade preparation,
Plote's field personnel discovered contaminated material beneath the road. Work was
immediately stopped and an environmental consultant was brought in by the City to conduct an
evaluation of the limits of contamination. A report, generated on December 4, 2007 by Terracon
Consulting Engineers & Scientists, was shared with Plote. The report identified a significant
amount of contaminated soil within the profile of the roadway that was proposed to be cut.
After meeting with Plote to devise a plan and payment for addressing the contaminated material,
staff felt the best course of action, financially, was to terminate the agreement with Plote,
repackage the bids and re-bid the project with the contaminated material removal included. Due
Termination Agreement for Frazier Avenue Reconstruction Project
April 2, 2009
Page 2
to the change in scope of the project by incorporating the removal of the contaminated soil, it
was determined that it was in both parties best interests to terminate the agreement.
The site has been left exposed to the elements since work stoppage allowing earthen materials to
erode down the slope and across Clifford Street currently being used to access the Fox River
Water Reclamation District North Plant. Although some remedial measures have been taken,the
area continues to be vulnerable to erosion. Because of the steepness of the slope, amount of
storm water runoff from surrounding areas, and ineffectiveness of existing remedial measures,
staff feels that the most effective action is to move forward with a repackaged version of the
Frazier Avenue Reconstruction Project. For staff to continue, it is recommended that the City
terminate the contract with Plote. A copy of the termination agreement is attached for your
consideration.
COMMUNITY GROUPSANTERESTED PERSONS CONTACTED
None
FINANCIAL IMPACT
The project number, account numbers and budget for the Frazier Avenue Project are 339673,
275-0000-791.93-80, 276-0000-791.93-80 and $749,239 respectively. The construction contract
awarded to Plote totaled $619,242.25 of which $17,864 has been paid. The engineering
agreement and one amendment with Bollinger Lach & Associates totals $118,946 with
$45,372.65 remaining.
Staff is proposing to repackage the project with the assistance of Bollinger Lach & Associates
(BLA) to address the contaminated soils issue. The funds remaining in the purchase order for
Plote will be utilized to fund the revised project. There are sufficient funds remaining in the
purchase order for BLA for construction inspection services, to repackage the bid documents,
provide oversight of contaminated soil removal and to provide assistance to engineering
inspection staff during the reconstruction of Frazier Avenue. BLA will redesign, rebid, provide
construction layout and to hire a specialist to monitor the contaminated material removal. City
inspection staff will be utilized for construction observation with assistance from BLA to
complete the inspections of the typical construction items such as curb and gutter, storm sewers
and pavements.
LEGAL IMPACT
The Legal Department has prepared the termination agreement.
Termination Agreement for Frazier Avenue Reconstruction Project
April 2, 2009
Page 3
ALTERNATIVES
1. The City Council may choose to terminate the agreement with Plote Construction, Inc.
2. The City Council may choose not to terminate the agreement with Plote Construction,
Inc.
Respectfully submitted for Council consideration.
do
Attachment
City of Elgin Memorandum
Date: May 1, 2009
To: Mary Giffort, Paralegal
From: Jennifer Quinton, Deputy City Clerk
Subject: Resolution No. 09-101, Adopted at the April 29, 2009, Council Meeting
Enclosed you will find the agreement listed below. Please retain a copy for your records. If you
have any questions please feel free to contact our office 847-931-5660 and we will do our best to
assist you. Thank you.
• Termination Agreement with Plote Construction,Inc. Regarding the Frazier Avenue
Reconstruction Project