B10-012 Marc Kresmery Construction AGREEMENT
THIS AGREEMENT is dated this 31st day of March,2010 by and between the City of Elgin,an Illinois
Municipal Corporation(herein called"City")and_Marc Kresmery Construction LLC(herein called
"Contractor"),an Illinois Corporation with a principal place of business at
1725 Weld Road Elgin,IL 60123.
WHEREAS,on February 16. 2010 the City released an Invitation for Bids entitled U.S. Route 20 and Nesler Road 24"
Water Main;and
WHEREAS,Contractor submitted a timely bid on March 12, 2010;and
WHEREAS,the City Council has deemed Contractor to be the lowest price responsive and responsible bidder for U.S.
Route 20 and Nesler Road 24"Water Main t],hereinafter referred to as"Work;"
NOW THEREFORE, in consideration of the mutual covenants herein set forth, the sufficiency of which is hereby
acknowledged,the parties hereto hereby agree as follows:
Article 1. Work.
Contractor shall complete the Work as specified in the Contract Documents.
The Work is generally described as follows:
The work includes but is not limited to the installation of approximately 775 feet of 24" ductile iron water main
installed in a trench, the installation of approximately 100 feet of 36"steel casing pipe auger and pushed with 24"
ductile iron carrier pipe inside, one 24" gate valve in a 6' diameter vault, 4-24" ductile iron 45 degree bends, 2
connections to the existing 24"watermain, and restoration.
Article 2. ENGINEER.
The Work has been designed by Burns & McDonnell Engineering Company ("Engineer"). Engineer shall act as
City's representative and shall assume and provide such duties and obligations to the extent provided in the Contract
Documents.
Article 3. Work COMPLETION,LIQUIDATED DAMAGES,DELAYS AND DAMAGES.
3.1. Work Completion. The Work shall be completed as provided in the Contract Documents. The Contractor shall
substantially complete the work within 90 calendar days of the Notice to Proceed,and shall finally complete the work
within 120 calendar days of the Notice to Proceed. In the event of any conflict between these dates and dates elsewhere
in the Contract Documents,these dates shall prevail. Time is of the essence of this Agreement.
3.2. Liquidated Damages. City and Contractor agree that as reasonable liquidated damages for delay (but not as a
penalty) Contractor shall pay City $500 for each day beyond the time specified for Substantial Completion in the
Contract Documents. After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the
remaining Work within the times specified in the Contract Documents(hereinafter referred to as"Contract Times")or
any proper extension thereof granted by City, Contractor shall pay City $500 for each day beyond the time for Final
Completion. Contractor agrees and acknowledges that such liquidated damages constitute a reasonable estimate of
City's actual damages. Such liquidated damages shall constitute City's sole recourse for and shall constitute full
satisfaction of City's actual damages resulting from Contractor's delay. Contractor further acknowledges and agrees
that in the event any provisions in any of the Contract Documents conflict with the provisions of this paragraph or
otherwise provide for damages resulting from Contractor's delay, the provisions of this paragraph shall control, and
such conflicting provisions and any Contract Documents shall not constitute,and shall not be construed as, a basis by
which to render the provisions of this paragraph unenforceable.
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3.3. Delays and Damages. In the event Contractor is delayed in the prosecution and completion of the Work or
achievement of any Contract Times because of any delays caused by City or Engineer, Contractor shall have no claim
against City or Engineer for damages or contract adjustment other than an extension of the Contract Times as provided
herein and the waiving of liquidated damages during the period occasioned by the delay.
Article 4. CONTRACT PRICE.
City shall pay Contractor$ $129,800 as indicated in the Contractor's Bid for completion of the
Work in accordance with the Contract Documents.
Article 5. PAYMENTS.
5.1. Payments. City shall make payments on the basis of Contractor's Applications for Payment as recommended by
Engineer, in conformance with the City of Elgin's accounts payable schedule. All payments shall be based on the
progress of the Work measured by the schedules provided in the Contract Documents. Notwithstanding anything to the
contrary in any Contract Documents,City shall be entitled to withhold any payments pending the submission of partial
or full waivers of lien and/or certifications verifying the receipt of payment for all work performed by all
subcontractors up to the date of Contractor's application for partial or final payment in City's sole discretion. City shall
further be entitled to make such payments directly to any subcontractors as may be necessary to obtain such lien
waivers and/or certifications. In the event City makes any such payments directly to any subcontractors,the amount of
such payments shall be deducted from the total amount due to Contractor pursuant to this agreement; and Contractor
shall provide a written release to City in the amount of any such payments upon ten (10) days written demand.
Concurrent with all applications for payment, Contractor shall provide City with a sworn certification of all work
performed by all subcontractors and amounts paid to all subcontractors as of the date of application.
5.2. Retainage. City may withhold, from all payments prior to Substantial Completion,an amount equal to up to ten
percent(10%)of work completed,at City's sole discretion.
Upon Substantial Completion, City may release a portion of the retainage to Contractor, retaining at all times an
amount sufficient to cover the cost of the Work remaining to be completed,at City's sole discretion.
The time for payment of any retainage from City to Contractor shall be at City's sole discretion. Such payment shall
not be unreasonably withheld.
5.3. Final Payment. The City shall not be required to make final payment prior to completion and acceptance of the
Work by the City.
Article 6. CONTRACT DOCUMENTS.
There are no Contract Documents other than those listed below. The Contract Documents which comprise the entire
agreement between City and Contractor concerning the Work consist of the following:
a. This Agreement.
b. Certificates of Insurance.
c. Bonds.
d. Notice of Award.
e. Notice to Proceed.
f. General Conditions.
g. Supplementary Conditions.
h. Specifications.
i. Drawings consisting of six(6) sheets,with each sheet bearing one of the following general titles:
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F:\Legal Dept\Agreement\City Contractor Agreement-2009.doc
Sheet titles are listed on the cover sheet of each drawing set.
j. Any Addenda.
k. Contractor's Bid.
1. City Forms.
m. Any subsequent Written Amendments to any documents listed above and other documents amending,
modifying, or supplementing the Contract Documents, which may be delivered or issued after the
Effective Date of the Agreement and are not attached hereto.
This Agreement and the Contract Documents listed above comprise the sole and exclusive Agreement between the
parties hereto. There are no other agreements between the parties hereto either oral or written, and neither this
Agreement nor any Contract Documents shall be modified or amended without the written consent of the authorized
representatives of the parties hereto.
Article 7. MISCELLANEOUS.
a. Terms used in this Agreement shall have the meanings indicated in the General Conditions.
b. No assignment or delegation by a party hereto of any rights under,obligations or interests in the Contract
Documents shall be binding on another party hereto without the written consent of the party sought to be
bound;and specifically but without limitation moneys that may become due and moneys that are due may
not be assigned without such consent(except to the extent that the effect of this restriction may be limited
by law); and unless specifically stated to the contrary in any written consent to an assignment, no
assignment shall release or discharge the assignor from any duty or responsibility under the Contract
Documents.
c. City and Contractor each binds itself,its partners, successors,employees,assigns,and agents to the other
party hereto, its partners, successors, employees, assigns, and agents in respect of all covenants,
agreements,and obligations contained in the Contract Documents.
d. The business address of Contractor is hereby designated as the place to which all notices,letters,and other
communication to Contractor shall be mailed or delivered. The address of City is hereby designated as the
place to which all notices, letters, and other communication to City shall be mailed or delivered. Such
notices,letters and other communications shall be directed to the City's General Services Manager. Either
party may change its address at any time by an instrument in writing delivered to Engineer and to the
other party.
e. The terms and provisions of this Agreement shall be severable. In the event any of the terms or provisions
of this Agreement shall be deemed to be void or otherwise unenforceable for any reason,the remainder of
this Agreement shall remain in full force and effect.
f. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the
resolution of any disputes and the enforcement of any rights arising out of or in connection with the
Agreement shall be in the Circuit Court of Kane County,Illinois.
g. This Agreement shall not be construed so as to create a partnership,joint venture,employment or agency
relationship between the parties hereto except as may be specifically provided for herein.
h. In the event of any conflict between any of the terms or provisions of this Agreement and any other
Contract Documents,the terms and provisions of this Agreement shall control.
i. Indemnification. To the fullest extent permitted by law,Contractor agrees to and shall indemnify,defend
and hold harmless the City, the Engineer, Engineer's consultants and the officers, employees,boards and
commissions of each and any of them from and against any and all claims, suits, judgments, costs,
attorneys' fees,damages or any and all other relief or liability arising out of or resulting from or through,
or alleged to arise out of, any acts or negligent acts or omissions of Contractor or Contractor's officers,
employees, agents or subcontractors in the performance of this agreement, or arising out of or in
connection with litigation based on any mechanic's lien or other claims, suits,judgments and/or demands
for damages by subcontractors. In the event of any action against the City,its officers,employees,agents,
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boards or commissions covered by the foregoing duty to indemnify,defend and hold harmless,such action
shall be defended by legal counsel of City's choosing. In the event and to the extent that any legal work is
performed by City's in-house legal counsel pursuant to the provisions of this section, City shall be
reimbursed by Contractor for such legal work at the rate of$200 per hour,which rate Contractor hereby
agrees and acknowledges to be a reasonable rate for such in-house attorneys' fees. The provisions of this
paragraph shall survive any expiration and/or termination of this agreement.
j. Compliance with Laws. Notwithstanding any other provision of this CONTRACT it is expressly agreed
and understood that in connection with the performance of this CONTRACT that the CONTRACTOR
shall comply with all applicable Federal, State, City 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 all CONTRACTOR'S employees and/or agents who will be providing
products and/or services with respect to this CONTRACT 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 for in this CONTRACT. The CITY shall have the right to audit any
records in the possession or control of the CONTRACTOR to determine CONTRACTOR'S compliance
with the provisions of this section. In the event the CITY proceeds with such an audit the
CONTRACTOR shall make available to the CITY the CONTRACTOR'S relevant records at no cost to
the CITY. CONTRACTOR shall pay any and all costs associated with any such audit.
IN WITNESS WHEREOF,City and Contractor have signed this Agreement. One counterpart each has been delivered
to City,Contractor, Surety,and Engineer.iq.
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This Agreement shall be effective on / ,-3;�`d .
CONTRACTOR: CITY:
Y _ _ 1' ,
.4-41/
By: Marc Kresme ' By: Sean R. Stegall
Title: Manager Title: City Manager
Address for giving notices Address for giving notices
Marc Kresemery Construction LLC City of Elgin
1725 Weld Road 150 Dexter Court
Elgin,IL 60123 Elgin,IL 60120
FEIN#36-4485855
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F:\Legal Dept\Agrreement\City Contractor Agreement-2009.doc