09-97 I
Resolution No. 09-97
RESOLUTION
AUTHORIZING EXECUTION OF AN AGREEMENT WITH
PAN COR CONSTRUCTION& DEVELOPMENT, LLC
FOR THE POINT BOULEVARD-RANDALL ROAD
INTERSECTION IMPROVEMENT 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 Ed Schock,Mayor,and Diane Robertson,City Clerk,be
and are hereby authorized and directed to execute a Cost-Plus-Guaranteed Maximum Price
Agreement on behalf of the City of Elgin with PanCor Construction& Development, LLC for the
Point Boulevard-Randall Road Intersection Improvement Project,a copy of which is attached hereto
and made a part hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: April 8, 2009
Adopted: April 8, 2009
Vote: Yeas: 6 Nays: 0
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
s J
COST-PLUS — GUARANTEED MAXIMUM PRICE AGREEMENT
For Point Boulevard-Randall Road Intersection Improvement Project,
Elgin, Illinois
THIS AGREEMENT, made as of this I� day of MAU4 , 2009 by and between
PanCor Construction & Development, LLC, an Illinois limited liability company (hereinafter
called "Contractor") and the City of Elgin, Illinois, an Illinois municipal corporation (hereinafter
called"City").
WITNESSETH:
WHEREAS, certain owners within the developments known as the Randall Point Executive
Center and the adjacent Randall Point Executive Center II have proposed to construct further
improvements to the Point Boulevard and Randall Road intersection, Point Boulevard being the
entry road into the Randall Point Executive Center and the Randall Point Executive Center 11; and
WHEREAS, the proposed improvements to the Point Boulevard and Randall Road
intersection include among other matters dual left turn lanes on Point Boulevard, dual left turn lanes
on Randall Road,miscellaneous other improvements to Randall Road and upgrading traffic signals,
all as set forth in the Working Drawings(hereinafter defined); and
WHEREAS, the certain owners within the Randall Point Executive Center and the adjacent
Randall Point Executive Center H have requested that the City of Elgin establish a special service
area for such properties with the purpose of such special service area to provide funds to pay for the
proposed intersection improvements; and
WHEREAS, pursuant to such a special service area the City would sell bonds which would
be repaid by the levy of a direct ad valorem tax on the subject properties for a period of twenty(20)
years; and
WHEREAS, on October 8, 2008, the City of Elgin adopted Ordinance No. T33-08 being an
ordinance establishing a special service area number 19 of the City of Elgin, Kane and Cook
Counties, Illinois for the Randall Point Executive Center and the Randall Point Executive Center II
(the "Subject Special Service Area"); and
WHEREAS, pursuant to the Subject Special Service Area the City intends to sell the bonds
contemplated by the legislation establishing the Subject Special Service Area in an aggregate
amount of$580,000 (the "Bonds"), it being the intention that a portion of the proceeds of such
Bonds would be used by the City to pay Work (hereinafter defined) for the Project required by this
Agreement; and
WHEREAS, the Point Boulevard Randall Road intersection improvement project as
hereinafter defined is under the jurisdiction of both Kane County and the City and the design and
construction of improvements for such project will and shall be subject to the approval of both Kane
County("Kane County") and the City;
NOW, THEREFORE, for and in consideration of the mutual undertakings as set forth
herein, and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Contractor and the City hereby agree as follows:
Article 1. Basic Definitions
As used herein, the following terms shall have the following meaning:
"Application for Payment" shall have the meaning as set forth in paragraph 5.2 below.
"Change Order" shall have the meaning as described in paragraph 6.2 below.
"City's Representative" shall mean the City of Elgin City Engineer or such other individual as
City may, from time to time, identify by written notice to Contractor as holding such position.
"Contract Documents" shall mean each and all of the following:
(i) This Agreement;
(ii) The Working Drawings as listed on Exhibit A attached hereto; and
(iii) All Legal Requirements (as hereafter defined); and
(iv) All Modifications and Change Orders (each as hereafter defined) issued after
the execution of this Agreement.
"Contract Price" shall have the meaning as set forth in paragraph 4.1 below.
"Contractor's Fees" shall have the meaning as set forth in paragraph 4.1 below.
"Costs of the Work" shall have the meaning as set forth in paragraph 4.3 below.
"Defective Work" shall have the meaning as set forth in paragraph 7.4 below.
"Emergency" shall mean any situation which requires immediate action in order to avoid the
occurrence of or minimize property damage, personal injury, death, or the violation of any law
(including,without limitation, environmental laws).
"Environmental Laws" shall mean any federal or state law, statute, regulation, rule, order, decree,
judgment or direction concerning environmental protection or health and safety, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, the Resource Conservation and Recovery Act, as amended, the Toxic Substances
Control Act, as amended, and the federal and Illinois Environmental Protection Acts, as each as
amended.
"Excusable Delay" shall have the meaning as set forth in paragraph 3.5 below.
"Final Completion" shall have the meaning as set forth in Paragraph 3.4 below.
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"Governmental Authority" shall mean each and all of those governmental bodies or agencies
thereof having jurisdiction over the performance of the Work and the use and occupancy of the
Land (as hereafter defined) for the Intended Land Use (as hereafter defined) including, without
limitation, the issuance of all building and occupancy permits.
"Hazardous Material" shall mean any contaminants, pollutants, petroleum or petroleum by-
products, crude oil or any fraction thereof, chemicals, wastes or substance (including, without
limitation, regulated substances and hazardous wastes and hazardous substances as such terms are
commonly used and understood within the framework of existing federal and Illinois Environmental
Laws and regulations).
"Inspecting Engineer" shall mean the City Engineer of the City of Elgin or his designee.
"Intended Land Use" shall mean the use of the Project (as hereafter defined) and Land (as
hereafter defined) for and in connection with the following activity following Substantial
Completion of the Work: Public roadways intersection of Point Boulevard and Randall Road.
"Land" shall mean land underlying the Work as shown in the Contract Documents.
"Legal Requirements" shall mean all laws, codes, ordinances, requirements, rules, licenses and
regulations of all applicable governmental authorities in effect as of the date of this Agreement
which in any way regulate, govern or affect the Work.
"Modification" shall mean (i) a written amendment to this Agreement signed by both parties or(ii)
a Change Order.
"Nonconforming Work" shall have the meaning as set forth in paragraph 7.1 below.
"Permits" shall mean all licenses, permits and other authorizations required to be issued by or
obtained from any Governmental Authority as a condition to the lawful commencement and
completion of the Work on the Land, including, without limitation, permits from Kane County and
the City of Elgin.
"Permissible Price Adjustments" shall mean and include only such increases to the Contract Price
as are set forth in a Change Order executed by the City.
"Project" shall mean the improvements to be constructed on the Land through the performance of
the Work.
"Punchlist" shall have the meaning as set forth in paragraph 5.4 below.
"Scope of Work" shall have the meaning as set forth in paragraph 2.1 below.
"Subcontractor" shall have the meaning as set forth in Article 11 below.
"Substantial Completion" shall have the meaning as set forth in paragraph 3.4 below.
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"Unforeseen Physical Condition" shall mean (1) any soil condition or unknown subsurface
obstruction requiring extra excavation or the importation or exportation of extra or special fill, or
requiring the use of footings or pilings or other method of remediation which may be required to
correct; (ii) the existence of any other physical or environmental condition, wetlands or flood plain
on the Land, in either case (A) requiring additional time to deal with or ameliorate and (B) not
expressly and prominently disclosed in the Outline Specifications.
"Winter Conditions" shall mean snow, ice or sub-freezing temperatures which are experienced
during the performance of the Work.
"Work" shall mean all labor, material and equipment used or incorporated in the completed
construction Project as defined and described in the Contract Documents and as may be otherwise
reasonably necessary or appropriate to carry out the purposes and intents of this Agreement.
"Working Drawings" shall mean and include all of the plans and drawings listed on Exhibit A
attached hereto. In the event of any conflict between the plans and specifications referred to in
Exhibit A and the final permits to be issued by Kane County, the City or any other governmental
jurisdiction having permitting authority, the provisions and requirements of any such final permits
shall control.
Article 2. Scope and Performance of the Work.
2.1 Scope of Work: Covenant to Perform Work. In consideration of the payment of the
Contract Price by City to Contractor as provided in Article 4 below, Contractor hereby agrees to
perform the Work (directly or through Subcontractors) as set forth in the Working Drawings and
subject to any subsequent Modifications or Change Orders (the "Scope of the Work"), so as to
complete the Project within the time provided in Article 3. The parties hereby acknowledge and
agree that (i) the Contractor has entered into separate agreements for design services for the Project
(ii) the Contractor shall be entitled to reimbursement for the costs incurred in such design services
as part of the compensation due Contractor under this Agreement but subject to the and limited by
the not-to-exceed amount being the Net Bond Proceeds Amount (hereinafter defined) set forth in
Paragraph 4.1(b) hereof. Notwithstanding the foregoing, or anything to the contrary in this
Agreement, it is agreed and understood that the Scope of Work shall include all work necessary to
complete the Project including, without limitation, and by way of example, the remediation of
Hazardous Material and/or additional effort for Unforeseen Physical Condition. Contractor shall in
no event be entitled to compensation above the not-to-exceed amount being the Net Bond Proceeds
Amount set forth in Paragraph 4.1(b) hereof and Contractor's sole remedy for such matters such as
Hazardous Material and Unforeseen Physical Condition shall be a request for a reasonable
extension to complete the work pursuant to Section 3.5 hereof.
2.2 Skill and Judgment. Contractor covenants with City to furnish its best skill and judgment
in performing its obligations hereunder and to furnish efficient business administration and
superintendence and an adequate supply of workmen and materials in order to perform such Work
consistent with the terms of this Agreement. Contractor shall have the exclusive right to supervise
and direct the Work and shall be solely responsible for all construction means, methods,techniques,
sequences and procedures, and for coordinating all portions of the Work under the Contract
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Documents.
2.3 Further Construction Covenants. In connection with the performance of its duties hereunder,
the Contractor shall also:
(a) Take all reasonable and customary precautions for the safety of all workers on the
Project;
(b) Comply with all Legal Requirements pertaining to the Work or the Project,
including, without limitation, the requirements of Kane County and the City of Elgin
and their respective permits in connection with the Project.
(c) Keep City's Representative reasonably apprised of the progress of the Project.
2.4 New Materials. The Contractor warrants to the City that all materials and equipment
furnished under this Agreement shall be new and shall be of good quality.
2.5 Discipline of Employees. Contractor shall, at all times, enforce strict discipline and
good order among its employees, and shall not employ on the Work any unfit person or anyone not
skilled in the task assigned to him.
2.6 Intentionally Omitted.
2.7 Drawings and Specifications at Site. Contractor shall maintain at the site for City one (1)
copy of all drawings, specifications, addenda, approved shop drawings, Change Orders and other
Modifications in good order and marked to record all changes made during construction.
2.8 Use of Site. Contractor shall confine operations on the Land to areas permitted by law,
ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with
any materials or equipment.
2.9 Cleaning Up. Contractor, at all times, shall keep the Land free from accumulation of waste
materials or rubbish caused by its operations. At the completion of the Work, Contractor shall
remove all its waste materials and rubbish from and about the Land as well as all of its tools,
construction equipment,machinery and surplus materials.
2.10 Bond. Contractor shall furnish to the City a bond covering (1) its faithful performance of the
Work and this Agreement and (ii) the payment of all obligations arising thereunder in such form as
required by the City's municipal code and law. Contractor shall have no obligation to provide a
performance bond relating to the performance of services outside the Scope of the Work performed
hereunder,regardless of whether said bond is required by a Municipality or otherwise.
2.11 Exclusivity. All of the Work shall be performed exclusively by Contractor or its
Subcontractors and City shall have no right to perform or to contract directly with third-parties with
respect to same.
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Article 3. Permits: Commencement of Work: Substantial Completion.
3.1 Application for Permits. Promptly following the execution of this Agreement, Contractor
shall, to the extent it has not already done so, submit such applications as may be required in
order to obtain all necessary building permits for the commencement and performance of the
Work ("Permits"). The parties acknowledge that the Working Drawings were prepared by
Contractor's agents. As such, any defects or deficiencies in the Working Drawings which are
required to be corrected in order to procure the issuance of the Permits shall be promptly
remedied by the Contractor as part of the Work, and thus subject to reimbursement hereunder but
subject to and limited by the not-to-exceed amount being the Net Bond Proceeds Amount set
forth in paragraph 4.1(b) hereof.
3.2 Commencement of Work. Contractor shall commence the Work within 30 days of the date
Contractor has received all required Permits; provided the City has by then confirmed that the
Bonds have been sold and not less than the Net Bond Proceeds Amount are available to pay for the
Work hereunder. If the Contractor has not received said Permits on or before May 1, 2009 through
no improper act or omission on the part of the City,then the City may terminate this Agreement.
3.3 Completion of Work. Following the commencement of the Work, and subject to Excusable
Delay, Contractor shall pursue the completion of the Work with customary diligence so as to
achieve Substantial Completion of same as soon as reasonably practicable without employing heroic
measures or incurring overtime labor charges. Notwithstanding anything to the contrary in this
Agreement, but subject to Excusable Delay, Contractor shall in any event achieve Substantial
Completion (hereinafter defined) within 180 days following the date of commencement of the
Work, and the Contractor shall in any event achieve Final Completion (hereinafter defined) of the
Project on or before 240 days following the date of commencement of the Work.
3.4 Substantial Completion and Final Completion. For purposes of this Agreement, the Work
shall be deemed to be in a state of"Substantial Completion" when Kane County and the City have
issued their approvals of same for the Intended Land Use. For purposes of this Agreement, the
Work shall be deemed to be in a state of"Final Completion" when all Punchlist Items (hereinafter
defined) have been completed as determined by Kane County and the City and Kane County and
the City have determined that all Work for the Project has been completed and the Project is in final
form.
3.5 Excusable Delay. If Contractor is delayed at any time in the commencement or progress of
the Work by(i) any default, unreasonable act, omission, or neglect of City, (ii) any unreasonable act
by any agent or employee of City, (iii) any separate contractor employed by City, (iv) changes
ordered in the Work, (v) labor disputes, (vi) fire, (vii) unusual delay in transportation, fuel, material,
or labor shortages or unavailability, (viii) unavoidable casualties, (ix) Acts of God, (x) Winter
Conditions; (xi) Unforeseen Physical Conditions, or (xii) any other causes beyond Contractor's
control (any of such enumerated causes of delay being hereinafter called "Excusable Delay"), then
the time within which Contractor is required to commence and/or substantially complete the Work
shall be reasonably extended upon the written request of the Contractor to the City and for a time
period as reasonably determined by the City.
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Article 4. Compensation to Contractor: Contract Price.
4.1 Contract Price: Guaranteed Maximum Price.
(a) In the manner provided in Article 5 below, but subject to the provisions and
limitations of paragraph 4.1(b) below, City shall pay to Contractor for the
performance of the Work that sum of money("Contract Price") equal to the total of:
(i) The Costs of the Work; plus
(ii) A fee (the "Contractor's Fee") equal to five percent (5.0%) of the total Costs
of the Work.
(b) Notwithstanding the provisions of subparagraph 4.1(a) above, and notwithstanding
any other provision of this agreement, the Contract Price shall not exceed $560,000,
being the net amount of the Bonds contemplated by the legislation establishing the
Subject Special Service Area(the "Net Bond Proceeds Amount"). The parties hereto
further expressly agree that in the event the costs to complete the Project exceed the
amount of the Net Bond Proceeds Amount, the Contractor shall nevertheless
complete the Project and any such costs in excess of the amount of the Net Bond
Proceeds Amount shall be the responsibility of and shall be paid by the Contractor
and the City shall have no responsibility for same.
4.2 Contingency For Sale of Bonds. Notwithstanding anything to the contrary in this Agreement
the parties' obligations in this Agreement are subject to and contingent on the City selling bonds
pursuant to the Subject Special Service Area and receiving the gross proceeds thereof in the amount
of$580,000 on terms and conditions acceptable to the City. In the event that, on or before April 15,
2009 the City does (i) not sell such bonds pursuant to the Subject Special Service Area on or before
and (ii) notify Contractor that the City has not less than the Net Bond Proceeds Amount available
for payment of the Work to be done hereunder, then either party hereto may upon written notice to
the other party terminate this Agreement whereupon this Agreement shall be null and void and the
parties hereto shall have no further obligations pursuant to this Agreement.
4.3 Costs of the Work. It is agreed and understood that the term "Costs of the Work" shall include
all costs and expenses incurred by the Contractor in connection with the performance of the Work
and its other duties hereunder, including,without limitation,the following costs and expenses:
(a) All wages, employee benefits and employment taxes due by Contractor to or for the
benefit of any of its own employees for labor performed by such employees in the
performance of the Work;
(b) The salaries, employee benefits and employment taxes due by Contractor to the
following administrative or management personnel of the Contractor (including the
principals of the Contractor), equitably allocated so as to include only that portion of
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each of those salaries which is roughly proportionate to the time which such
personnel devote to the oversight, management, coordination or other completion of
the Project, to wit:
(i) Field Superintendent,if any;
(ii) Project Manager, if any; and
(iii) Accounting Staff.
(c) The cost of all materials, supplies and equipment incorporated into the Work,
including costs of inspection, testing, transportation, storage and handling;
(d) Payments due by the Contractor to any Subcontractor for performing any portion of
the Work;
(e) Costs, including transportation and maintenance, of all materials, supplies,
equipment, temporary facilities and hand tools not owned by the workers that are
used or consumed in the performance of the Work, less salvage value, if any; and
costs, less salvage value, on such items used, but not consumed, that remain the
property of the Contractor;
(f) Rental charges of all machinery and equipment rented for used in the performance of
the Work, whether rented from the Contractor or others, including installation, repair
and replacement, dismantling, removal, maintenance, transportation and delivery
costs, all at rental charges and rates consistent with those prevailing in the area;
(g) The cost of the premiums for all insurance, surety and / or public improvement
bonds (or letters of credit in lieu thereof) which the Contractor may be required,
from time to time,to procure and provide;
(h) All sales, use, gross receipts and other taxes, tariffs or duties which may be required
to be paid by the Contractor in connection with the Work;
(i) The cost of any and all Working Drawings, Permits and submittal documents
required for such Permits, Tests, Royalties, Inspection Charges and the like;
(j) Losses, expenses or damages incurred by the Contractor or any Subcontractor in
connection with the performance of the Work, or with respect to their respective
property while on the Land, whether by fire, vandalism or other casualty to the
extent not compensated by insurance or otherwise, and the cost of corrective work;
(k) All costs associated with establishing, equipping, operating, maintaining and
demobilizing the field office and any portable toilet facilities;
(1) Reproduction costs, photographs, long-distance telephone calls, postage, express
delivery charges, telephone service at the job site, and other such customary out-of-
pocket expenses;
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(m) All water,power and fuel costs reasonably necessary for the performance of Work;
(n) The cost of clean-up and removal of all excess materials, debris and waste;
(o) The cost incurred due to any Emergency;
(p) All other costs of any kind whatsoever which are directly incurred in the
performance of the Work or in connection with the Project and which are reasonably
inferable from the Contract Documents as necessary to complete the Project and
make same usable for the Intended Land Use.
Article 5. Payment of Contract Price.
5.1. No Advance against Contract Price. The parties acknowledge that City shall not
be required to deposit any advance of the Contract Price upon execution hereof
5.2. Progress Payments: Waivers. The City shall make payments on the basis of the
Contractor's Applications for payment and as recommended by the City's
Representative. All payments shall be based upon the progress of the Work
completed.
(a) On or about the final day of each month, Contractor shall deliver to the City
an Application for Payment (the "Application"), showing the amount to be
paid to the Contractor with respect to (i) the Costs of the Work performed
through the last day of said month plus (ii) the Contractor's Fee due with
respect thereto, together with such other data supporting such Costs of the
Work as City or its Inspecting Engineer may reasonably require.
(b) Within thirty (30) days after receipt of each Application, the City shall pay,
or cause to be paid, directly to the Contractor, all amounts properly due and
owing as requested in such Application.
If City disputes the amount requested by Contractor to be paid in any
Application (whether on the grounds that (i) the asserted Work was not, in
fact, done or (ii) the Work is Nonconforming Work, as defined in
paragraph 7.1 below, or otherwise) City shall deliver to Contractor within
thirty (30) days following receipt of such Application, a written objection
("Payment Objection") specifying in detail the basis ("Basis for Objection")
for City's position that payment of any portion of the Contract Price is not
due.
(c) The City may withhold, from all payments prior to Final Completion, an
amount equal to up to ten percent (10%) of the Work completed, at the
City's sole discretion (the "Retainage"). Upon Final Completion, the City
shall release the Retainage to the Contractor. The City shall not be required
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to make final payment prior to Final Completion of the Work as determined
by Kane County and the City.
(d) Along with each Application, the Contractor shall furnish to the City a sworn
statement signed by the Contractor giving the names of all Subcontractors
and material suppliers furnishing materials and labor, all Work performed by
each of them and the amounts previously paid and the amounts due to each
of them as reflected by said Application for Payment, together with sworn
statements and waivers of lien which comply with the requirements of the
Illinois Mechanic's Lien Act in connection with the performance of all Work
up to the date of such Application. Notwithstanding anything to the contrary
in this Agreement, the City shall be entitled to withhold any payments
pending the submission of partial or full sworn statements and waivers of
lien.
5.3 Payment of Balance of the Contract Price. Payment of the Balance of the Contract Price,
excluding Retainage and the amount of the Punchlist Holdback(as hereinafter defined), shall be due
and payable by City to Contractor upon Application therefore by Contractor, but not before
Substantial Completion of the Work shall have been achieved as determined by Kane County and
the City. The application for and payment of such payment shall be subject to all of the same
requirements and procedures as are applicable to any interim Application as set forth in paragraph
5.2 above.
5.4 Punchlist. On the date of Substantial Completion, Contractor and City, together with the
Inspecting Engineer, shall inspect the Work and the City and Inspecting Engineer shall prepare a
punchlist (the "Punchlist") of incomplete and/or defective work (the "Punchlist Items") together
with the estimated cost of completing each item. Such Punchlist prepared by the City and the
Inspecting Engineer shall be in addition to any punchlist prepared by Kane County and the terms
Punchlist and Punchlist Items shall be deemed to include, but not be limited to, any Punchlist Items
generated by Kane County in addition to the Punchlist Items identified by the City and the
Inspecting Engineer. Within a reasonable time after delivery to Contractor of the Punchlist,
Contractor shall fully complete said Punchlist Items. Contractor shall complete said Punchlist Items
within sixty(60) days subject to extension due to any delays attributable to the matters described in
Section 2.4 hereof. City shall have the right to retain a sum(the "Punchlist Holdback") equal to one
hundred ten percent (110%) of the estimated cost of completing all Punchlist Items as determined
by the City. Upon the Contractor having completed all of the Punchlist Items and having achieved
Final Completion all as approved and determined by Kane County, the City and the Inspecting
Engineer, the City shall upon application from the Contractor pay the Contractor the Retainage and
the amount retained for the Punchlist Items.
Article 6. Changes in the Work: Change Orders: Legal Requirements:
6.1 Changes in the Work. The City, without invalidating this Contract, may order changes in
the Work which do not (without the consent of the Contractor): (a) materially increase or decrease
the general scope of the Work; (b) materially adversely affect the Contractor's ability to commence
or complete the Work; or (c) require or result in an additional cost of expense to Contractor. All
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such changes in the Work shall be effective only upon the execution by the City and Contractor of a
Change Order(hereinafter defined).
6.2 Change: Change Orders. A "Change Order" is a written order to Contractor signed by
City issued after the execution of the Contract authorizing a change in the Work. A Change Order
shall be signed by Contractor and City and shall document if, and to the extent that there may result
from such Change (a) an adjustment in the Contract Price or the Contract Time; or (b) any
additional cost or expense to the Contractor whatsoever. The parties acknowledge and agree that, in
addition to covering all of its costs with respect to a Change Order, Contractor shall be entitled to a
reasonable"mark-up"on materials and services provided in connection with a Change Order.
6.3 Legal Requirements. Notwithstanding the foregoing provisions of paragraph 6.1 and 6.2,
or anything else to the contrary in this Agreement, the City may direct the Contractor to perform
additional work, without providing compensation to the Contractor beyond the Net Bond Proceeds
Amount provided for in paragraph 4.1(b), if such additional work is necessary in order for the
Project to be completed as designed in the Working Drawings in compliance with all Legal
Requirements. The Contractor shall be obligated to perform such additional work in compliance
with all Legal Requirements. Any such direction by the City to the Contractor to perform such
additional work in order to so comply with the Legal Requirements shall not be considered either a
"Change" or a Change Order, and shall not be subject to the provisions of either paragraphs 6.1 or
6.2 above. For the purposes of clarification and example, in the event the Contractor encounters an
Unforeseen Physical Condition or Hazardous Material, the correction or remediation of either of
which is necessary in order to conform to Legal Requirements, then the City may order the
Contractor to perform such any and all work as is reasonably necessary to correct such an
Unforeseen Physical Condition or to remediate any such Hazardous Material in order to meet Legal
Requirements without providing compensation to the Contractor beyond the not-to-exceed Net
Bond Proceeds Amount provided for in paragraph 4.1(b).
Article 7. Correction of Nonconforming Work: Warranty As To Defective Work
7.1 Nonconforming Work: Objection: Waiver. The term "Nonconforming Work" shall mean
any Work performed by the Contractor or any Subcontractor which, although not defective as to
workmanship or material nevertheless (i) fails to conform, to any material and adverse extent, to the
requirements and specifications of the Contract Documents and (ii) was not otherwise authorized or
accepted by City.
7.2 Correction of Nonconforming Work. If prior to Final Completion, any portion of the
Work is, determined by Kane County, the City or Inspecting Engineer to be Nonconforming Work
which was not otherwise accepted by the City, then City shall have the right to reject such work and
Contractor shall, at its expense, correct same promptly after receipt of written notice from City to do
so.
7.3 Contractor's Failure to Correct Nonconforming Work. If Contractor fails to correct
such Nonconforming Work in accordance with the above provisions, City may correct same and the
reasonable cost thereby incurred by City shall be credited against the Contract Price otherwise due
Contractor hereunder, or City shall be reimbursed by Contractor for such cost within fifteen (15)
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days after receipt of an invoice therefor.
7.4 Warranty Against Defective Work.
(a) "Defective Work" is Work which fails or otherwise proves to be defective (as such
term is customarily understood in the context of commercial construction) due to
poor workmanship or materials. Subject to the requirements and limitations in
paragraph 7.5(b) below, if, within the period ending one (1) year after the date of
Substantial Completion of the Work, any of the Work provides to be Defective
Work, the Contractor shall correct same promptly after receipt of a written notice
from the City. If any portion of the Work is the subject of a warranty claim as
aforesaid, then the warranty period as to such item of the Work shall be extended for
an additional one (1) year beyond the performance of the warranty work performed
by the Contractor on such item of the Work. The Contractor's warranty obligation
hereunder shall survive the termination of the Contract.
(b) City shall be required to perform routine and appropriate regular maintenance during
the warranty period. This warranty excludes:
(i) any claim that a portion of the Work is Defective Work (the identification
and remedies with respect to same being governed exclusively by the
provisions of paragraphs 7.1 through 7.4 above); and
(ii) claims for damage or defect caused by abuse, modifications not executed by
Contractor, improper or insufficient maintenance, improper operation,
normal wear and tear under normal usage.
(c) The Contractor shall also assign to City at the time of Substantial Completion all
warranties, if any, provided to Contractor by the manufacturers of any of the
components of the Work(the "Manufacturers'Warranties").
(d) All subcontracts entered into by Contractor shall require each Subcontractor to:
(i) warrant that portion of the Work it performs for a period of one (1) year
following Substantial Completion of the Work, all on terms similar to those
warranties made herein by Contractor to City; and
(ii) assign any Manufacturer's Warranties to City.
7.5 Routine Maintenance by City. City shall perform routine and appropriate regular
maintenance during the warranty period in accordance with customary practices, including, but not
limited to, maintenance instructions prepared by Contractor, or the applicable manufacturer, and
delivered to City on the date of Substantial Completion.
12
Article 8. Insurance
8.1 Contractor's Liability Insurance. Contractor shall purchase and maintain such insurance
(collectively "Contractor's Liability Insurance") as will protect it from claims of the type set forth
below and which may arise out of, or result from, Contractor's operations under this Agreement,
(whether such operations be by Contractor, by any Subcontractor, or by anyone directly or
indirectly employed by any of them, or by anyone for whose acts any of them may be liable,
including,without limitation, the following insurance coverages):
(a) Claims under workmen's compensation, disability benefits, and any other similar
employee benefit acts; and
(b) Claims for damages arising out of bodily injury, occupational sickness or disease, or
death of its employees; and
(c) Claims for damages arising out of bodily injury, sickness or disease, or death of any
person other than its employees; and
(d) Claims for damages insured by usual personal injury liability coverage which are
sustained by (i) any person as a result of an offense directly or indirectly related to
the employment of such person by Contractor, or(ii) any other person; and
(e) Claims for damages arising out of injury to or destruction of tangible property,
including loss of use resulting therefrom; and
(fl Claims for damages because of bodily injury or property damage arising out of the
ownership,maintenance or use of motor vehicles.
The insurance required by Subparagraphs (d) through (f) of this Paragraph 8.1 shall be
written for limits of liability of not less than One Million Dollars ($1,000,000.00) for each
occurrence with a general aggregate limit of Two Million Dollars ($2,000,000.00) and shall
expressly name City and City's construction lender (if any) as additionally named insureds.
The insurance required by Subparagraphs (a) and (b) of this paragraph 8.1 shall be written
for limits required by law.
Contractor shall also require all major Subcontractors to maintain insurance generally of the
type described in subparagraphs (a) through (f) of this paragraph 8.1 (collectively
"Subcontractor Liability Insurance").
Certificates evidencing the Contractor's Liability Insurance in form acceptable to City, shall
be filed with City (if so requested by City) prior to commencement of the Work. These
Certificates shall contain a provision that coverage afforded under the policies will not be
cancelled until at least ten(10) days prior written notice has been given to City.
8.2 City's Liability Insurance. City may purchase and maintain such additional insurance as
City determines may be appropriate to protect it against claims which may arise from operations
13
under this Contract.
Article 9. Source Selection. Contractor shall utilize such source selection procedures as are
reasonably necessary for the selection of all Subcontractors, material suppliers and others furnishing
materials or labor for the Project in order to obtain reasonable pricing for all aspects of the Work for
the Project. Contractor shall provide the City copies of all contracts with all Subcontractors,
material suppliers and others furnishing materials or labor for the Project within ten (10) days of
Contractor entering into any such contract.
Article 10. Right to Stop Work: Breach: Right to Terminate Contract.
10.1 Breach By Contractor: Termination of Contract by City.
(a) Contractor shall be deemed to be in breach and default of this Agreement upon the
occurrence of any one or more of the following events and the failure by Contractor
to cure same within the time hereinafter provided ("Event of Default by
Contractor"):
(i) If Contractor is adjudged a bankrupt, or if it makes a general assignment for
the benefit of its creditors, or if a receiver is appointed on account of its
insolvency, or in the event a voluntary or involuntary petition shall be filed
by Contractor under any law having for its purpose the adjudication of
Contractor as bankrupt (and said involuntary petition is not dismissed or
vacated within sixty(60)days), or in the event any department of the State or
Federal government, or any officer thereof, duly authorized, shall take
possession of the business or property of Contractor by reason of
Contractor's insolvency; or
(ii) If, in the reasonable judgment of the City, Contractor persistently or
repeatedly refuses or fails (except in cases for which Excusable Delay is
applicable) to supply enough properly skilled workmen or proper materials
or to otherwise pursue the performance of the Work so as to reasonably
assure Substantial Completion by the time required herein, and Contractor
fails to promptly take steps to correct such situation within fifteen (15) days
following written notice thereof by City to Contractor; or
(iii) If Contractor persistently disregards Legal Requirements for which
Contractor is responsible, or otherwise is guilty of a material violation of a
provision of the Contract Documents, and fails to correct such situation
within fifteen (15) days following written notice thereof by City to
Contractor.
Notwithstanding the foregoing, in the event that any default by Contractor is not
susceptible to cure within the period of time above specified, the time within which
Contractor may cure same shall be extended for such time as may be reasonably
necessary to complete the same with all due diligence, but only if Contractor (A)
14
provides City with evidence reasonably satisfactory to City that such default can be
cured within such extended time (not-to-exceed 30 days) and in such manner so as
not to cause undue-prejudice to City, and (B) Contractor promptly commences and
diligently pursues the cure of such default and completes same within such permitted
extended period.
(b) Upon the occurrence of an Event of Default by Contractor, then City may terminate
this Agreement and the employment of Contractor and take possession of the site
and of all materials, stored thereon and intended for incorporation into the Project,
and shall have the right to cause the Work to be completed by whatever reasonable
method City deems expedient. Further, City shall have the right to collect from
Contractor all damages, costs and expenses incurred by City as a result of such
termination of this Agreement (excluding, however, any consequential damages, lost
profits from the operation of the Intended Land Use, or the like).
10.2 Indemnification of City by Contractor. Contractor shall indemnify and hold harmless
City from and against all claims, demands, liability, costs and expenses (including reasonable
attorney's fees) related to bodily injury, sickness, disease or death, or to injury to or destruction of
tangible property (other than the Work itself, including the loss of use resulting therefrom) and
which is caused directly and in whole by any negligent act or omission of Contractor, any
Subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any
of them may be liable. The indemnification obligations under this Subsection 10.2 shall not be
limited in any way by a limitation on the amount or type of damages, compensation or benefits
payable by or for Contractor or any Subcontractor under workmen's compensation acts, disability
benefit acts or other employee benefit acts. City shall notify Contractor of any claim under this
indemnity in such time as to avoid prejudice to Contractor and Contractor shall have the right to
defend with counsel reasonably acceptable to City. The indemnification obligation contained in this
paragraph 10.2 shall not be construed to negate, abridge or otherwise reduce any other right,
obligation or indemnity which would otherwise exist as to any party or person described in this
Subsection.
10.3 Indemnity Exclusion. Nothing herein shall require the Contractor to indemnify the City
from all claims, demands, liability, costs or expenses arising out of the City's own negligence or
intentionally wrongful conduct.
Article 11. Subcontractors.
11.1 Contractor's Right to Employ Subcontractors. City acknowledges that Contractor shall
have the right, in its sole discretion, to cause any portion of the Work hereunder to be performed by
subcontractors("Subcontractors") selected as provided herein.
11.2 Assignability of Subcontractual Relations. Each subcontract entered into by Contractor
with any Subcontractor shall expressly provide therein that (i) Contractor may collaterally assign its
rights therein to City and (ii) in the event of the termination of the rights of Contractor as provided
in paragraph 10.3 above, City (or its lender) may, at their election, enforce said subcontract, in
which case Subcontractor shall, upon written notice of such election, tender all further performance
15
r
under said subcontract to City or City's lender (whichever may have made such election). Where
appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with
his/its sub-subcontractors.
11.3 Contracts with Subcontractors. In addition to the requirements of paragraph 11.2 above,
Any part of the Work performed for the Contractor by a Subcontractor shall be pursuant to a written
subcontract between the Contractor and such Subcontractor, which shall be prepared on a master
form of subcontract which contains provisions that:
(a) require that such Work be performed in accordance with the requirements of the
Contract Documents;
(b) require submission to the Contractor of applications for payment under each
Subcontract to which the Contractor to apply is a party, in reasonable time to enable
the Contractor to apply for payment in accordance with the provisions of Article 5
hereof,
(c) waive all rights the contracting parties may have against one another or that the
Subcontractor may have against the City for damages caused by fire or other perils
covered by the property insurance described in Article 8, except for such rights as
they may have to the proceeds of such insurance held by the City as trustee under
Paragraph 8.3 above;
(d) require the Subcontractor to carry and maintain workman's compensation and
liability insurance; and
(e) require that Subcontractor recognize City as a third-party beneficiary of the
Subcontractor's warranties and permit direct enforcement thereof by City; and
11.4 Conditional Assignment of Subcontracts. As an inducement to the City to execute this
Agreement, the Contractor hereby conditionally assigns to the City all subcontracts executed by the
Contractor in connection with the Work and in accordance with the requirements of the Contract
Documents, subject to the following terms and conditions:
(a) this assignment shall become an effective and present assignment only upon a
termination of this Agreement pursuant of Paragraph 10.1 hereof and only as to
those subcontracts which the City accepts in writing; and
(b) the City shall assume only those assigned subcontracts which it elects to accept, and
shall become liable only for the obligations thereunder which accrue after the date of
termination.
Article 12. Dispute Resolution. Any Dispute between the parties may be resolved by judicial
proceeding. In such event, any such judicial proceeding shall be commenced only in the Sixteenth
Judicial Circuit Court of Kane County, Illinois. Each party hereby waives any objection it may
have to the commencement or transfer of any such proceeding to or in said venue.
16
Article 13. Miscellaneous.
(a) Titles of articles are used in this Contract solely for the convenience of those
examining it and are not to be resorted to as aids in its construction or interpretation.
(b) This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns provided, however, that the parties shall
not assign the Contract without the prior written consent of the other, nor shall the
Contractor assign any monies due or to become due to it hereunder, without the prior
written consent of City.
(c) This Agreement shall be interpreted and construed in accordance with the laws of
the State of Illinois.
(d) This Agreement is and shall be deemed and construed to be the joint and collective
work product of Contractor and City and, as such, this Agreement shall not be
construed against either party, as the otherwise purported drafter of same, by any
court of competent jurisdiction in order to resolve any inconsistency, ambiguity,
vagueness or conflict, if any, in the terms or provisions contained herein.
(e) All notices by either party to the other shall be in writing. Such written notices shall
be deemed to have been duly served if delivered in person to the individual or
member of the firm or to an officer of the corporation for whom it was intended, or,
if sent by registered or certified mail, to the parties at the following addresses:
If to City: City of Elgin, Illinois
Attn: City Manager
150 Dexter Ct.
Elgin, IL 60120
With a copy to: City of Elgin
Attn: William A. Cogley
Corporation Counsel
150 Dexter Ct.
Elgin, IL 60120
If to Contractor: PanCor Construction and Development, LLC
2175 Point Blvd., Suite 125
Elgin, IL 60123
Attn: Peter Nelson
With a copy to: Peter C. Bazos, Esq.
Bazos, Freeman,Kramer, Schuster, Vanek&Kolb
1250 Larkin Avenue
Suite 100
Elgin, Illinois 60123
17
or at such other address as the parties may hereafter designate by written notice to
the other. Any such notice shall be effective upon delivery, if personally delivered,
or two (2) days after depositing in the United States Mail, postage prepaid, as
aforesaid.
(f) Notwithstanding any other provision of this Agreement, it is expressly agreed and
understood that in connection with the performance of this Agreement that the
Contractor, its employees, subcontractors and any of their agents shall comply with
all applicable U.S. federal, state, city, county and other requirements of law
including, but not limited to, any applicable requirements regarding prevailing
wages, minimum wage, workplace safety and legal status of employees. Without
limiting the foregoing, Contractor hereby certifies, represents and warrants to the
City that (i) all of Contractor's employees shall be legal residents of the United
States and (ii) Contractor shall, in all of its subcontracts, required that each
subcontractor agree to ensure that all of its employees, subcontractors and/or any of
their employees and agents who will be providing products and/or services with
respect to this Agreement shall be legal residents of the United States. Contractor
shall also at its expense secure all permits and licenses, pay all charges and fees and
give all notices necessary and incident to the due and lawful prosecution of the
Work, and/or the products and/or services to be provided in this Agreement. The
City shall have the right to audit any records in the possession or control of the
Contractor or any of its subcontractors to determine the Contractor's or
subcontractors compliance with the provisions of this Agreement and/or this
paragraph. In the event the City proceeds with such an audit of the Contractor or
any of its subcontractors, the Contractor or any of its subcontractors shall make
available to the City the Contractor's or subcontractor's relevant records at no cost to
the City. Additionally, and without limiting the foregoing, the Contractor and its
subcontractors shall comply with the Prevailing Wage Act at 820 ILCS 130/0.01 et
seq., as amended, in all respects in the performance of this Agreement and in the
construction of the Project including, without limitation, paying the prevailing wage
as required therein.
(g) As a condition of this Agreement, Contractor shall have written sexual harassment
policies that include, at a minimum, the following information: (i) the illegality of
sexual harassment; (ii) a definition of sexual harassment under state law; (iii) a
description of sexual harassment, utilizing examples; (iv) the vendor's internal
complaint process including penalties; (v) the legal recourse, investigative and
complaint process available through the Illinois Department of Human Rights, and
the Illinois Human Rights Commission; (vi) directions on how to contact the
Department and Commission; (vii) protection against retaliations provided by
Section 6-101 of the Human Rights Act.
A copy of the policy shall be provided by the Contractor to the Department of
Human Rights upon request(775 ILCS 5/2-105).
(h) As a condition of this Agreement, the Contractor shall have in place a written
substance abuse prevention program which meets or exceeds the program
18
5
requirements in the Substance Abuse Prevention Public Works Project Act at 820
ILCS 265/1 et seq. A copy of such policy shall be provided to the City prior to the
entry into and execution of this Agreement.
(i) Contractor, prior to and as a condition of the City's execution of this Agreement,
shall complete and provide to the City, City of Elgin, Illinois certification
requirements documents attached hereto as group Exhibit B including the
certification requirements form, bidder's employee utilization form, equal
employment written commitment guideline, sexual harassment policies and
programs and tax/collusion/debarment/prevailing wage/legal status of employees
affidavit.
(j) Notwithstanding anything to the contrary in this Agreement, with the sole exception
of the monies the City has agreed to pay the Contractor pursuant to Section 4 hereof,
no action shall be commenced by the Contractor, and/or any of its related entities,
and/or their successors and/or assigns, against the City for monetary damages.
(k) This agreement shall not be construed so as to create a partnership, joint venture,
employment or agency relationship between the parties hereto.
(1) In the event the Contractor is delayed in the prosecution and completion of the Work
or achievement of any contract times because of any delays alleged to be caused in
whole or in part by the City or the City Representative, Contractor shall have no
claim against the City or the City Representative for damages or contract adjustment
other than an extension of time as provided herein.
(m) Time is of the essence of this agreement.
(n) Concurrently with the Contractor's execution and entry into this Agreement, and
prior to the City's execution and entry into this Agreement, the Contractor shall
provide to the City the original fully executed Waiver of Claim, Covenant Not to
Sue and Indemnity Agreement, a copy of which is attached hereto as Exhibit C.
{SIGNATURE PAGE FOLLOWS}
19
IN WITNESS WHEREOF,the parties hereto have executed this Contract the day and year first
above written.
CITY:
City of Elgin
an Illinois municipal corporatio
By:
,---% - % � -..-0
Ed Schock,Mayor
Attest:
Diane Robertson,City Cl
CONTRACTOR:
Pan Cor ons ction&Development, LLC
By:
Peter Nelson
Its: (b16-440 w,J M.wA-CJ4- #k e�*,3 at
F:\Legal Dept\Agreement\SSA-Randall Pt Executive Ctr-Pancor Construct-WAC-clean 3-11-09.docx
20
EXHIBIT A
ADDITIONAL DOCUMENTS FORMING A PART OF THE CONTRACT DOCUMENTS
1. Final Engineering Plans for Point Boulevard Intersection Improvements prepared
by Jacob and Hefner dated 8-30-07.
2. Span Wire Traffic Signal and Interconnect Plan prepared by Metro Transportation
dated 8-31-07.
3. Traffic Signal Specifications prepared by Metro Transportation dated 8-31-07.
4. Final Permit for the Project issued by Kane County, Illinois.
5. Final Permit for the Project issued by the City of Elgin, Illinois.
6. Final Permits for the Project issued by any other governmental jurisdiction having
permitting authority.
21
u es
r
City of Elgin, Illinois
Certification Requirements
Please submit all required forms and documentation, fully completed and signed,
with your proposal. No proposal will be accepted without this information.
1. To assure compliance with the City of Elgin's Affirmative Action Ordinance,all contractors and
vendors.Herein referred to as"bidders",are requested to submit the following information:
a. Workforce analysis using the enclosed Bidder's Employee Utilization form.
b. Provide the information required in Item#3 on the employee utilization form if the answer to
Question#2 on the form is"Yes".
c. Provide a written commitment outlining the steps that the bidder plans to take in the area of
recruitment and promotion of minorities and females to assure equal employment opportunity.
(A copy of the bidder's affirmative action plan may be submitted in lieu of this requirement.)
2. To assure compliance with the City of Elgin's Sexual Harassment Ordinance, all bidders must
submit a signed sexual harassment form enclosed with the Invitation to Bid.
3. The undersigned certifies that the offerer is not delinquent in the payment of any tax administered
by the Illinois Department of Revenue unless there is a pending proceeding contesting the tax.
4. The undersigned certifies that the offerer is not barred from offering on this solicitation as a result
of a conviction for the violation of State law prohibiting bid-rigging or bid-rotating.
5. The successful bidder agrees that upon acceptance by the City of Elgin,the executed Invitation to
Bid along with all instructions, conditions,and specifications attached thereto constitute a binding
contract which may be enforced by the city.
Signature/Title IL ?U)QA At"�
Company Name /kNcbk ewfluxl,�4 -wo 1) )&a/_c7_e1
Address 2475 f2a/-
62,&^4 1(- L,,QiZ.7
Phone Number 9Y1 551 li45
FEIN No. �, 2
f
��S rIUM
City of Elgin, Illinois
BIDDER'S EMPLOYEE UTILIZATION FORM
This report is required by the City of Elgin and must be submitted before the contract can be awarded.
Chapter 3.12.1000 Affirmative Action-City Contracts
1. Name and Address of Bidder Description of Project
JOB CATEGORIES Total Whites Blacks Hispanics Asians or American Minority Female(All
Employees Pacific Indians (M&F) Categories)
Islanders % %
M / F M / F M / F M / F M / F
Example:Managers 18 3 / 5 3 /2 4/0 0/1 0/0 55.6% 44.4%
(10/18) (8/18)
MAAlahie'X4 3 z /► 33��
rd�
/W6/Z 3 3 /0 D ��
'C ��� z zlo Flo n o oho
TOTALS /d S1Z do
Sign u e of Co pany Official Title Telephone Number Date Signed Page L
AoG C7 M C"t 8K-7 551 9175 03- 13-0? of I-
2. Have you ever been awarded a bid by the City of Elgin?
Yes K No
3. If the answer to question#2 is Yes,please submit a copy of the Employee Utilization Form that was
submitted with your last successful bid along with a fully completed copy of this form.
4. Please submit,according to the guideline provided in the attached document, a written commitment to
provide equal employment opportunity. An Employee Utilization Form is required for any subcontractors.
(VOTE: In the event that a contractor or vendor,etc.,fails to comply with the fair employment and affirmative action provisions of the City
of Elgin,the City amongst other actions may cancel,terminate,or suspend the contract in whole or in part.
�6s rwMypi
City of Elgin, Illinois
Equal Employment Written Commitment Guideline
The written commitment required in Item#4 of the Bidder's Employee Utilization Form shall:
1. Set out the name and phone number of the bidder's Equal Employment Officer.
2. Clearly identify the bidder's recruitment area and the percentage of minorities and females in the
area's population and labor force.
3. Set out what the bidder has done and has set as a goal to ensure the recruitment of minority and
female employees.
4. Set out the bidder's specific goals to recruit minorities and females for training programs or other
similar opportunities available through the bidder's organization.
5. Indicate bidder's consent to submit to the City of Elgin,upon request, statistical data concerning
its employee composition and recruitment efforts anytime during the term of the contract.
G. Show bidder's consent to distribute copies of the written commitment to all persons who
participate in recruitment, screening,referral,and selection and hiring of job applicants for the
bidder.
7. Clearly show that the bidder shall require all subcontractors, if any, to submit a written
commitment complying with the above requirements of their affirmative action plan to the City of
Elgin.
8. Clearly state the bidder agrees that:
"Bidder(company name) shall not discriminate against any employee or applicant on the basis of
race,color,religion,sex,national origin,age,place of birth,ancestry,martial status, or disability
(physical or mental)which will not interfere with the performance of the job in question."
Description of Groups for Classification Purposes
White: all persons having origins in Europe,North America, or the Middle East
Black: all persons having origins in any of the Black racial groups of Africa
Hispanic: all persons of Mexican,Puerto Rican,Cuban, Central South American,or other
Spanish culture or origin,regardless of race
Asian American: all persons having origins in the Far East, Southeast Asia,the Indian
subcontinent, or the Pacific Islands
American Indian: all persons having origins in any of the original peoples of North America and
who maintain cultural identification through tribal affiliation or community
recognition
Pancor Construction and Development
Equal Opportunity Commitment
Intersection Improvement Project
Pancor Construction and Development during the course of it's construction operations shall not
discriminate against any employee or applicant on the basis of race,color, religion,sex,national
origin, age,place of birth,ancestry,marital status,or disability(physical or mental)which will not
interfere with the performance of the job in question.
1. Equal opportunity officer:Pete Nelson,847 551 9195
2. Project recruitment area: NA - existing employees to be utilized
3. Recruitment goals:NA-existing employees to be utilized
4. Recruitment goals:while existing employees are to be utilized for this project,our goal for
future hires is to attempt to match the percentage of minority and female represented in the
local demographic
5. Contractor consents to the City of Elgin having access to statistical data concerning employee
composition during the term of the contract
6. Contractor consents to distributing a written commitment to all persons participating in
recruitment of personnel if additional personnel are required for this project.
7. Subcontractors will be required to submit a written commitment complying with affirmative
action as required by the City of Elgin.
B. Contractor agrees as per the statement above to not discriminate against any employee or
applicant.
City of Elgin, Illinois
Sexual Harassment - - Policies and Programs
Effective July 1, 1993, every party to any contract with the City of Elgin and every eligible
bidder is required to have written sexual harassment policies that include, at a minimum, the
following information:
• the illegality of sexual harassment
• the definition of sexual harassment under state law
• a description of sexual harassment, utilizing examples
• a vendor's internal complaint process including penalties and a description of the means
by which complaining parties may complain directly to management personnel other than
the alleged harassing individual
• the legal recourse, investigative and complaint process available through the Illinois
Department of Human Rights, and the Illinois Human Rights Commission
• directions on how to contact the department and commission
• protection against retaliation as provided by Section 6-101 of the Human Rights Act
I hereby affirm that the organization which I represent has in place sexual harassment
policies which include the required information set forth above, and I hereby agree to
furnish the City of Elgin - Human Resources Department with a copy of these policies if
they so request.
Signature/Title
Company 164C4JO ter►
Date 3- ►3-o q
Sexual harassment is defined as follows:
"Sexual harassment"means any unwelcome sexual advances or requests for sexual favors or any
conduct of a sexual nature when (1) submission to such conduct is made either explicitly or
implicitly a term or condition of an individual's employment, (2) submission to or rejection of
such conduct by an individual is used as a basis for employment decisions affecting such
individual, or (3) such conduct has the purpose or effect of substantially interfering with an
individual's work performance or creating an intimidating, hostile, or offensive working
environment.
Any questions by contracting parties or eligible bidders concerning compliance with these
requirements should be directed to the City of Elgin - Human Resources Department at (847)
931-5618.
The undersigned, on behalf of the undersigned company, hereby agrees to fully indemnify
and hold the City of Elgin harmless from any and all liability, loss or damage including
costs of defense or claim, demands, costs of judgment against it arising from any complaint
based on unlawful harassment and/or employment action, including, but not limited to
termination,based on any protected category as provided by law, including, but not limited
to, sexual harassment resulting from the act of any member of my organization in the
performance of this contract. �n
44e�S i gn ature/Ti 1 e �N
oc
Company ?A�JcoL tAfij Qoat4 nam navcu, eM
Date
t
CITY OF ELGIN,ILLINOIS
TAX/COLLUSION/DEBARMENT/PREVAILING WAGE/LEGAL STATUS OF EMPLOYEES AFFIDAVIT
State of r LU n101 S ss.
County of VA&
��"TC72 NQ-s o� being first duly sworn,hereby deposes and states:
(1) That s/he is the Pte-J c z M4,J is of the party making the
foregoing bid.
(2) That the bidder is not barred from contracting with any unit of local government for any reason, including
but not limited to debarment as a result of a violation of 720 Illinois Compiled Statutes, Section 5/33E-3 or 5/33E-4, as
amended.
(3) That no collusion or agreement among other bidders or prospective bidders to bid a fixed price or
otherwise restrain competition by agreement has taken place.
(4) That the bidder is not delinquent in the payment of any tax administered by the Illinois Department of
Revenue unless there is a pending proceeding contesting any such tax.
(5) That the bidder hereby certifies: [check all that apply]
• V bidder has not received any notices of violations of the
Illinois Prevailing Wage Act(820 ILCS 130/0.01 et seq.)
• in the event any such notice has been received by bidder,a
copy of any such notice is attached hereto.
• in the event that bidder has received such a notice,any
documentation demonstrating the resolution of any such notice is attached hereto.
• for each such notice received by bidder,the matter has been
resolved as follows:
(6) That the bidder hereby certifies that it shall comply with the provisions of the Prevailing Wage Act (820
ILCS 130/0.01 et seq.).
(7) That the bidder hereby certifies, represents and warrants that all of bidder's employees and/or agents who
will be providing products and/or services with respect to the subject bid and contract are and shall be legal residents of
the United States,and are and shall be legally authorized to perform any such applicable work and/or services.
Signature of Bidder, if an individual:
Signature of Bidder,if a partnership:
Subscribed and swoxn to
Partner(indicate General or Limited) before met is T day of
200?
Signature of Bidder, if a corporation: My com ss n expires:
President
Secretary vW�
OFFICIAL SEAL
Signa o idder, if a limited liability company: DANIEL T. WALSH
Notary Public — State of Illinois
My Commission Expires March 06, 2010
Member or Manager
EXHIBIT C
WAIVER OF CLAIM,COVENANT NOT TO SUE
AND INDEMNITY AGREEMENT
THIS WAIVER OF CLAIM, COVENANT NOT TO SUE AND INDEMNITY AGREEMENT
("Agreement"), made as of this day of March, 2009 by and among PanCor Construction &
Development, L.L.C., an Illinois limited liability company ("Contractor") and the undersigned
Parties (as hereafter defined) in favor and for the exclusive benefit of the City of Elgin, Illinois, an
Illinois municipal corporation(hereinafter called "City").
WHEREAS, RP2 Limited Partnership, an Illinois limited partnership, PanCor, Inc., an
Illinois corporation, Contractor and Corus Bank, N.A., as Trustee under Trust Agreement Dated
January 8, 1999 and known as Trust No. 99-4355 (hereinafter called"Cores Trustee")entered into a
First Amendment to Annexation Agreement with the City dated April 21, 1999 (hereinafter referred
to as the"First Amendment to Annexation Agreement"); and
WHEREAS, both PanCor, Inc. and the Corus Trustee have been dissolved and have no
further rights or interests in the property covered by the First Amendment to Annexation
Agreement; and
WHEREAS, the undersigned requested that the City approve a special service area, to be
designated City of Elgin Special Service Area number 19 (hereinafter "SSA-19") in order to fund
the making of certain intersection improvements to the intersection of Randall Road and Point
Boulevard(the"Intersection Improvements"); and
WHEREAS, The City and the Contractor propose to enter into a certain Cost-Plus --
Guaranteed Maximum Price Agreement(the"Construction Contract") under which the Intersection
Improvements are to be constructed for the City by the Contractor; and
WHEREAS, the First Amendment to Annexation Agreement relates in part to the
Intersection Improvements, and contains, in Section 4(b) thereof, a covenant on the part of the City
to spend up to $30,0000 of City funds to make certain improvements that are a part of the
Intersection Improvements(the"Section 4(b) City Covenant"); and
WHEREAS, the City is unwilling to approve the SSA-19 or to execute and enter into the
Construction Contract unless the undersigned execute and deliver to the City this Agreement;
NOW, THEREFORE, in consideration of the City(a) establishing SSA-19, (b)making available up
to $560,000 of funds to pay for the Intersection Improvements under the Construction Contract, and
(c)entering into the Construction Contract with the Contractor, the receipt and sufficiency of which
are-hereby acknowledge,the undersigned covenant and agree as follows:
1. The undersigned (collectively the "Parties") and their respective successors, assigns and
grantees, hereby(i) forever waive and release any claim that they or any of them may have
against the City to enforce the Section 4(b) City Covenant, (ii) agree that the performance
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by the City in connection with its undertakings to establish the SSA-19 and to use up to
$560,000 of the bond sale proceeds thereby derived to pay the Costs of the Work under the
Construction Contract are and shall be in full satisfaction and compliance to the undersigned
with the City's Section 4(b) City Covenant, and (iii) that the City shall have no further
obligations to any of the undersigned or their respective successors, assigns and grantees,
under or with respect to the Section 4(b) City Covenant, including, but not limited to, any
further obligation to widen Point Boulevard and/or to expend or pay any monies in
connection therewith.
2. The undersigned, for themselves and on behalf of their respective successors, assigns and
grantees, hereby acknowledge the propriety, necessity and legality of all of the terms and
provisions of this paragraph of the.Agreement, including, but not limited to, the parties
authority to agree to the provisions of this Agreement without requiring an amendment to
the First Amendment to Annexation Agreement, and do hereby further agree and do waive
any and all rights to any and all legal or other challenges or defenses to any of the terms and
provisions of this paragraph of the Agreement, and hereby agree and covenant not to sue the
City or maintain any legal action or other defense against the City with respect to any
challenges of the terms and provisions of this paragraph of this Agreement, and/or with
respect to the provisions of the City's Section 4(b)City Covenant.
3. The Contractor hereby agrees to indemnify, defend and hold the City harmless from and
against any claim made by any person under the First Amendment to Annexation
Agreement seeking to enforce the Section 4(b)City Covenant against the City.
4. If the City fails to establish the SSA-19 and / or execute and enter into the Construction
Contract with the Contractor, then in either event this Agreement shall be of no force or
effect.
IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement on
and as of the date first above written.
ELGIN LODGING,LLC
By:
Name:
Title:
RANDALL LAKES LIMITED PARTNERSHIP
By:
Name:
Title:
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2230 POINT BLVD.,LLC
By:
Name:
Title:
RP3,LLC
By:
Name:
Title:
2150 POINT BLVD.,LLC
By:
Name:
Title:
2170 POINT BLVD.,LLC
By:
Name:
Title:
RP2 LIMITED PARTNERSHIP
By:
Name:
Title:
PANCOR CONSTRUCTION&DEVELOPMENT,L.L.C.
By:
Name:
Title:
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