R-02-25 Approving an Agreement for Electric Vehicle Chargings
4,18 Main Street I Lemont, IL 604,39
TO: Village Board Meeting
FROM: Jason Berry, Community Development
THROUGH:
SUBJECT: A Resolution Approving an Agreement for Electric Vehicle Charging
Stations Between the Village of Lemont and Burke, LLC
DATE: January 13, 2025
SUMMARY/BACKGROUND
The Village Board is requested to approve a Design -Build Agreement with Burke, LLC for the
installation of four Zerova AX 48 Level 2 Electric Vehicle Charging Stations at the River Street
Parking Garage. The total project cost is $69,000, with an estimated net cost of $47,668 after
the anticipated ComEd Make -Ready Rebate of $21,332. The scope includes design,
installation of charging stations and related electrical work, signage, pavement markings, and
lighting upgrades. The project is expected to be completed within 90 days of the notice to
proceed. This agreement supports the Village's commitment to sustainability and improved
infrastructure.
ANALYSIS
Consistency with Village Policy
STAFF RECOMMENDATION
Staff recommends approval of the agreement.
BOARD ACTION REQUESTED
Motion to approve the agreement
ATTACHMENTS
A Resolution Approving an Agreement for Electric Vehicle Charging Stations Between the
Village of Lemont and Burke, LLC
VILLAGE OF LEMONT
RESOLUTION
NUMBER R--25
A RESOLUTION APPROVING AN AGREEMENT
FOR ELECTRIC VEHICLE CHARGING STATIONS
BETWEEN THE VILLAGE OF LEMONT AND BURKE, LLC
JOHN EGOFSKE, Village President
CHARLENE M. SMOLLEN, Clerk
JANELLE KITTRIDGE
DAVE MAHER
KEN MCCLAFFERTY
KEVIN SHAUGHNESSY
RICK SNIEGOWSKI
RON STAPLETON
Trustees
Published in pamphlet form by authority of the Village President and Board of Trustees of the Village of Lemont on 1-13-2025
RESOLUTION NO. R- -25
A RESOLUTION APPROVING AN AGREEMENT
FOR ELECTRIC VEHICLE CHARGING STATIONS
BETWEEN THE VILLAGE OF LEMONT AND BURKE, LLC
WHEREAS, Burke, LLC's Design -Build Agreement will provide Electric Vehicle
Charging Stations located at River Street Parking Garage; and
WHEREAS, Burke, LLC and the Village have agreed that upon acceptance of the
Agreement, that after installation of the charging stations Burke, LLC will provide
startup/technical support, Exhibit A attached hereto and incorporated herein by reference.
NOW THEREFORE, be it resolved by the President and Board of Trustees of the
Village of Lemont, Cook, DuPage and Will County, Illinois as follows:
SECTION 1: The recitals set forth above are incorporated herein by reference and made
a part hereof.
SECTION 2: The agreement between the Village and Burke, LLC, attached hereto as
Exhibit A, is hereby approved subject to such amendments as may be authorized by the Village
Administrator.
SECTION 3: The Village President is authorized to execute the agreement on behalf of
the Village.
SECTION 4: If any section, paragraph, clause or provision of this resolution shall be
held invalid, the invalidity thereof shall not affect any of the other provisions of this resolution.
PA
SECTION 5: All resolutions in conflict herewith are hereby repealed to the extent of
such conflict.
SECTION 6: This resolution shall be in full force and effect from and after its passage,
approval and publication as provided by law.
ADOPTED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE
VILLAGE OF LEMONT, COUNTIES OF COOK, WILL, AND DUPAGE, ILLINOIS, ON
THIS 131" DAY OF JANUARY 2025.
PRESIDENT AND VILLAGE BOARD MEMBERS:
AYES: NAYS
Janelle Kittridge
V
Dave Maher
t/
Ken McClafferty
Kevin
Shaughnessy
Rick Sniegowski
Ron Stapleton
Attest:
Charlene ollen, V l4P Clerk
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ABSENT: ABSTAIN:
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John Ega ske, Vi llage(PiVsident
EXHIBIT A
DESIGN -BUILD AGREEMENT
This Agreement is made this day of
between the:
OWNER:
And
CONSTRUCTION
MANAGER:
Village of Lemont
418 Main Street
Lemont, Illinois 60439
Burke, LLC
9575 W. Higgins Road, Suite 600
Rosemont, Illinois 60018
For services in connection with the following:
IBBURKE, LLC— Design/Build
in the year 2024, by and
PROJECT: Electric Vehicle Charging Stations located at
River Street Parking Garage
GUARANTEED MAXIMUM PRICE: Design Engineering
$6,000.00
EV Charging Equipment
$22,000.00
Construction/Installation
$35,000.00
Construction Management
$6,000.00
Total GMP
$69,000.00
ComEd Make -Ready Rebate Program Estimated Incentive: ,($21,332.00)
Total Estimated Cost of Project Less ComEd Make -Ready Rebate: $47,668.00
ComEd Make -Ready Rebate is only an estimate at this time and is subject to formal approval
from ComEd thru the Make -Ready Reservation application process
COMPLETION DATE: 90 days after Notice to Proceed
The attached Design Build Agreement shall govern the Work described as Electric Vehicle
Charging Stations and as described in the following Scope of Work. Drawings will be
prepared during the design phase to describe the work.
N:\Energy\Lemont EVCS\Village of Lemont EV Charging Station Proposal.docx
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&BURKE, LLC — Design / Build
SCOPE OF WORK
The improvements consist of the design and construction of the following:
1. Furnish and install a quantity of 4 Zerova AX 48 Level 2 Electric Vehicle Charging
Stations wall mounted including 16' cord and 5-year warranty.
2. Zerova AX 48 Dual Port Commercial Charging Stations will be wall mounted.
3. Furnish and install 225 amp panelboard dedicated for EV chargers fed from existing
panelboard. Furnish and install 225A, 3P breaker and 4/C #250 MCM and 1/C #4
GND in 2'/2" rigid galvanized steel (RGS) conduit.
4. Furnish and install (2) 1 '/4" RGS conduit run with 4/C #4 and 1/C #10 GND. Conduit
will be installed on the parking garage ceiling between proposed panelboard and
Zerova pedestals.
5. Furnish and install (4) 60 amp 208 volt single phase circuits between new EV charger
electrical panel and new EV charging stations on first floor.
6. Furnish and install electric vehicle signage and electric vehicle parking pavement
markings (paint).
7. Furnish and install two LED lighting fixtures in the EV charging area. Connect to
existing lighting circuits.
8. Provide startup/technical support after installation is complete.
9. Apply for local Building Permits and ComEd Make -Ready Rebate.
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ARTICLE 1 - RELATIONSHIP OF THE PARTIES
1.1 Relationship. The Relationship between the Owner and the Construction Manager
with regard to the Project shall be one of good faith and fair dealing. The
Construction Manager agrees to provide construction, management and
administration services as set forth in greater detail below.
1.2 Engineer. The Engineer for the Project is Christopher B. Burke Engineering, Ltd., a
separate company and legal entity closely affiliated with the Construction Manager.
ARTICLE 2 - DEFINITIONS
2.1 Contract Documents. The Contract Documents consist of:
Change Orders and written amendments to this Contract signed by both the
Owner and Construction Manager;
.2 This Contract;
.3 Surveys, geotechnical information and other information provided by the
Owner pursuant to this Contract.
.4 The Plans and Specifications, including any Addenda thereto.
.5 Schedule of Prices
In case of any inconsistency, conflict or ambiguity among the Contract Documents,
the Documents shall govern in the order in which they are listed above.
2.2 Day. A "Day" shall mean one calendar day.
2.3 Hazardous Material. A Hazardous material is any substance or material identified
now or in the future as hazardous under any federal, state or local law or regulation,
or any other substance or material which may be considered hazardous or otherwise
subject to statutory or regulatory requirements governing handling, disposal and/or
cleanup.
2.4 Subcontractor. A Subcontractor is a person or entity who has an agreement with the
Construction Manager to perform any portion of the Work, and includes vendors or
material suppliers but does not include any separate contractor employed by the
Owner or any separate contractor's subcontractor.
2.5 Substantial Completion. Substantial Completion of the Work occurs on the date
when construction is sufficiently complete in accordance with the Contract Documents
so that the Owner can begin to occupy or utilize the Project for the use for which it is
intended, or at such time that the Project is in a state that allows for the maturing and
establishment of the landscape plant materials (such as seeding, sodding, of grading
of areas to receive landscape materials).
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2.6 Subsubcontractor. A Subsubcontractor is a person or entity who has an agreement
with a Subcontractor to perform any portion of the Subcontractor's work.
2.7 The Work. The Work consists of all of the construction, procurement and
administration services to be performed by the Construction Manager and the
Subcontractors under this Contract, as well as any other services which are
necessary to complete the Project in accordance with and reasonably inferable from
the Contract Documents.
ARTICLE 3 - CONSTRUCTION MANAGER'S RESPONSIBILITIES
3.1 Commencement. The Construction Manager may commence the Work upon
execution of this Contract. The parties contemplate that by mutual agreement, the
Construction Manager may commence certain portions of the Work, such as
procurement of long lead-time items and site preparation.
3.2 General Requirements. The Construction Manager shall perform those portions of
the Work that the Construction Manager customarily performs with its own personnel.
All other portions of the Work shall be performed by Subcontractors or under other
appropriate agreements with the Construction Manager. The Subcontractor selection
process shall be as set forth in Article 4. The Construction Manager shall exercise
reasonable skill and judgment in the performance of the Work. The Construction
Manager shall give all notices and comply with all laws and ordinances legally
enacted at the date of execution of this Contract which govern performance of the
Work, as well as providing legally effective lien waivers in conformance with the
Illinois Mechanics Lien Act.
3.3 Schedule. The Construction Manager shall maintain in written form a schedule of the
Work. The schedule shall indicate the dates for the start and completion of various
stages of the construction and shall be revised as required by the conditions of the
Work. The schedule may contain dates when information, decisions and approvals
are required from the Owner, and both the Owner and the Construction Manager
agree to use their best efforts to comply with the time requirements of the schedule.
3.4 Meetings. The Construction Manager shall schedule and conduct meetings at which
the appropriate parties can discuss the status of the Work. The Construction
Manager shall prepare and promptly distribute meeting minutes.
3.5 Reports. The Construction Manager shall provide monthly written reports to the
Owner on the progress of the Work. The Construction Manager shall maintain a daily
log containing a record of weather, Subcontractors working on the site, number of
workers, Work accomplished, problems encountered and other similar relevant data
as the Owner may reasonably require. The log shall be available to the Owner upon
reasonable advance notice.
3.6 Cost Control. The Construction Manager shall develop a system of cost control for
the Work, including regular monitoring of actual costs for activities and progress and
estimates for uncompleted tasks and proposed changes. The Construction Manager
shall identify variances between actual and estimated costs and report the variances
to the Owner in the monthly written reports.
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3.7 Permits. The Construction Manager shall assist the Owner in securing the building
permits necessary for construction of the Project.
3.8 Safety. The Construction Manager shall take necessary precautions for the safety of
its employees on the Project and shall comply with all applicable provisions of federal,
state and local safety laws and regulations to prevent accidents or injuries to persons
on or adjacent to the Project site. The Construction Manager, directly or through its
Subcontractors, shall erect and properly maintain necessary safeguards for the
protection of workers and the public. However, the Construction Manager shall not
be responsible for the elimination or abatement of safety hazards created or
otherwise resulting from any work at the Project site being performed by someone
other than the Construction Manager, a Subcontractor or Subsubcontractor. The
Engineer shall have no responsibility for safety programs or precautions in connection
with the Work and shall not be in charge of or have any control over any construction
means, methods, techniques, sequences or procedures.
3.8.1 Construction Observation. The Construction Manager shall provide part-time
construction observation and testing to assist the Owner in the implementation of the
project. These services will be invoiced on an hourly basis as the work is executed
but shall not exceed the value indicated in the Schedule of Prices as adjusted by
change orders.
3.9 Cleanup. The Construction Manager shall keep the site of the Work free from debris
and waste materials resulting from the Work. At the completion of the Work, the
Construction Manager or its Subcontractors shall remove from the site of the Work all
construction equipment, tools, surplus materials, waste materials and debris.
3.10 Hazardous Materials. The Construction Manager shall not be obligated to commence
or continue Work, until any known or suspected Hazardous Material discovered at the
Project site has been removed or rendered or determined to be harmless by the
Owner as certified by an independent testing laboratory and approved by the
appropriate government agency. The Owner shall be responsible for retaining an
independent testing laboratory to determine the nature of the material encountered
and whether it is a Hazardous Material. The Construction Manager shall not be
required to perform any Work relating to or in the area of known or suspected
Hazardous Material without written mutual agreement and shall resume Work in the
area affected by any Hazardous Material only upon written agreement between the
parties after the Hazardous Material has been removed or rendered harmless. If the
Construction Manager incurs additional costs and/or is delayed due to the presence
of known or suspected Hazardous Material, the Construction Manager shall be
entitled to a Change Order equitably adjusting the Guaranteed Maximum Price and/or
the date of Substantial Completion. To the fullest extent permitted by law, the Owner
shall indemnify and hold harmless, regardless of fault, negligence or other liability, the
Construction Manager, Engineer, all Subcontractors and Subsubcontractors, and the
agents, officers, directors and employees of each of them from and against any and
all claims, damages, losses, costs and expenses, whether direct, indirect or
consequential, including but not limited to attorney's fees, arising out of or relating to
the performance of the Work in any area affected by Hazardous Material. The terms
of this indemnification shall survive completion or termination of this Contract.
3.11 Intellectual Property. The Construction Manager shall pay all royalties and license
fees which may be due on the inclusion of any patented or copyrighted materials,
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methods or systems selected by the Construction Manager and incorporated in the
Work. The Construction Manager shall defend, indemnify and hold the Owner
harmless from all suits or claims for infringement of any patent rights or copyrights
arising out of such selection. The Owner agrees to defend, indemnify and hold the
Construction Manager harmless from any suits or claims of infringement of any patent
rights arising out of any patented materials, methods or systems required or specified
by the Owner.
3.12 Completion. At or promptly after the date of Substantial Completion, the Construction
Manager shall secure required certificates of inspection, testing or approval and
deliver them to the Owner; collect all written warranties and equipment manuals and
deliver them to the Owner; with the assistance of the Owner's maintenance
personnel, direct the checkout of utilities and operations of systems and equipment
for readiness, and assist in their initial start-up and testing; provide the Owner with a
set of record drawings which the Construction Manager shall have maintained
throughout the Project; and prepare and forward to the Owner a punch list of items of
Work yet to be completed.
3.13 Indemnification. To the fullest extent permitted by law, the Construction Manager
shall defend, indemnify and hold the Owner and the Engineer harmless from all
claims for bodily injury and property damage (other than to the Work itself and other
property insured under the Owner's builder's risk or other property insurance) to the
extent of the negligence attributed to such acts or omissions by the Construction
Manager, Subcontractors, Subsubcontractors or anyone employed directly or
indirectly by any of them or by anyone for whose acts any of them may be liable.
ARTICLE 4 - SUBCONTRACTS
4.1 General. Work not performed by the Construction Manager with its own forces shall
be performed by Subcontractors or Subsubcontractors. The Construction Manager
shall be responsible for management of the Subcontractors in the performance of
their Work.
4.2 Selection. The Construction Manager shall obtain bids from Subcontractors and/or
from suppliers of materials or equipment fabricated to a special design for the Cost of
Construction. The bids will be in the form of a written proposal for the items indicated
as being part of the "Cost of Construction" in the Schedule of Charges. The bid will
be submitted to the Construction Manager. The Construction Manager will confer
with the bidders to verify the scope and intent of the submitted bid.
If the Construction Manager recommends to the Owner the acceptance of a
particular bid from a specific bidder who is qualified to perform that portion of
the Work and has submitted a bid which conforms to the requirements of the
Contract Documents without reservations or exceptions, and the Owner
requires that a different bid be accepted, then a Change Order shall be issued
adjusting the Contract Time and the Guaranteed Maximum Price by the
difference between the bid of the bidder recommended by the Construction
Manager and the bid that the Owner has required be accepted.
2 The Construction Manager shall not be required to contract with anyone to
whom the Construction Manager has a reasonable objection.
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4.3 Assignment. The Construction Manager shall provide for assignment of Subcontract
Agreements in the event that the Owner terminates this Contract for cause. Following
such termination, the Owner shall notify in writing those Subcontractors whose
assignments will be accepted, subject to the rights of sureties, if any.
4.4 Subcontracts. The Construction Manager shall prepare all Subcontracts and shall
have full discretion to negotiate their terms, subject to the Owner's reasonable
requirements or objections as to form and content.
ARTICLE 5 - CONSTRUCTION MANAGER'S WARRANTIES
5.1 One -Year Warranty. The Construction Manager warrants that all materials and
equipment furnished under this Contract will be new unless otherwise specified, of
good quality, in conformance with the Contract Documents, and free from defective
workmanship and materials, and the Construction Manager agrees to correct all
construction performed under this Contract which proves to be defective in
workmanship or materials. These warranties shall commence on the date of
Substantial Completion of the Work or of a designated portion thereof and shall
continue for a period of one year therefrom or for such longer periods of time as may
be set forth with respect to specific warranties required by the Contract Documents.
5.2 Materials Specified by Owner. The products, equipment, systems or materials
incorporated in the Work at the direction or upon the specific request of the Owner
shall be covered exclusively by the warranty of the manufacturer and are not
otherwise warranted under this Contract.
ARTICLE 6 - OWNER'S RESPONSIBILITIES
6.1 Information and Services. The Owner shall provide:
All necessary information describing the physical characteristics of the site,
including surveys, site evaluations, legal descriptions, existing conditions,
subsurface and environmental studies, reports and investigations developed
during the design phase of the project;
.2 Inspection and testing services during construction as required by the law or
as mutually agreed that are not included in the Guaranteed Maximum Price;
.3 Any necessary approvals, rezoning, easements and assessments, permits,
fees and charges required for the construction, use, occupancy or renovation
of permanent structures, including any legal and other required services; and
4 any other information or services stated in the Contract Documents as being
provided by the Owner.
6.2 Reliance. The Construction Manager shall be entitled to rely on the completeness
and accuracy of the information and services required by paragraph 6.1 above, and
the Owner agrees to provide such information and services in a timely manner so as
not to delay the Work.
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6.3 Not Used
6.4 Notice of Defect. If the Owner becomes aware of any error, omission or other
inadequacy in the Contract Documents or of the Construction Manager's failure to
meet any of the requirements of the Contract Documents, or of any other fault or
defect in the Work, the Owner shall give prompt written notice to the Construction
Manager.
6.5 Communications. The Owner shall communicate with the Subcontractors and
Subsubcontractors only through the Construction Manager. The Owner shall have no
contractual obligations to any Subcontractors or Subsubcontractors.
6.6 Owner's Representative. The Owner's Representative for this Project shall be fully
acquainted with the Project; shall be the conduit by which the Owner furnishes the
information and services required of the Owner; and shall have authority to bind the
Owner in all matters requiring the Owner's approval, authorization or written notice. If
the Owner changes its representative, the Owner shall notify the Construction
Manager in advance in writing.
ARTICLE 7 - CONTRACT TIME
7.1 Execution Date. The parties contemplate that this Contract will be fully executed
within 30 days of receipt of this Agreement dated. A delay in the Owner's execution
of this Contract which postpones the commencement of the Work may require a
Change Order equitably adjusting the date of Substantial Completion.
7.2 Substantial Completion. The date of Substantial Completion of the Work shall be the
completion date identified on the first page of this Contract, as adjusted in
accordance with the provisions of this Contract. Time shall be of the essence of this
Contract.
7.3 Delays. If causes beyond the Construction Manager's control delay the progress of
the Work, then the Contract Price and/or the date of Substantial Completion shall be
modified by Change Order as appropriate. Such causes shall include but not be
limited to: changes ordered in the Work, acts or omissions of the Owner or separate
contractors employed by the Owner, the Owner preventing the Construction Manager
from performing the Work pending dispute resolution, Hazardous Materials, differing
site conditions, adverse weather conditions not reasonably anticipated, fire, unusual
transportation delays, labor disputes, delays due to work performed by utility
companies or unavoidable accidents or circumstances. In the event that delays to
the Project are encountered for any reason, the Owner and the Construction Manager
both agree to undertake reasonable steps to mitigate the effect of such delays.
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ARTICLE 8 - PAYMENT
8.1 Guaranteed Maximum Price. The Guaranteed Maximum Price is the sum identified
on the first page of this Contract, subject to adjustment in accordance with the
provisions of this Contract.
8.2 Compensation. For the Construction Manager's performance of the Work, the Owner
shall pay the Construction Manager in current funds the sum of the Cost of the Work
as identified in the Agreement. The total cost of the Project will be the Guaranteed
Maximum Price. In the event the Cost of Construction plus the Construction
Manager's Fee and Professional Services shall total less than the Guaranteed
Maximum Price as adjusted by Change Orders, the resulting savings shall be shared
equally between the Owner and the Construction Manager, and the Owner shall
make payment of the Construction Manager's portion upon Final Completion of the
Work. In the event that the Cost of Construction plus the Construction Manager's Fee
and Professional Services exceeds the Guaranteed Maximum Price as adjusted by
Change Orders, then the Owner shall pay no more than the Guaranteed Maximum
Price as adjusted by Change Orders.
8.3 Progress Payments. Prior to submitting the first Application for Payment, the
Construction Manager shall provide a Schedule of Values reasonably satisfactory to
the Owner consisting of a breakdown of the Contract Price by trade or appropriate
category. On or before the 10th day of each month after the Work has been
commenced, the Construction Manager shall submit to the Owner an Application for
Payment in accordance with the Schedule of Values and the Illinois Mechanic's Lien
Act based upon the Work completed and materials stored on the site or at other
locations approved by the Owner. Within twenty-one (21) days after receipt of each
monthly Application for Payment, the Owner shall pay directly to the Construction
Manager the appropriate amount for which Application for Payment was made, less
amounts previously paid by the Owner. The Owner's progress payment, occupancy
or use of the Project, whether in whole or in part, shall not be deemed to be an
acceptance of any Work not conforming to the requirements of the Contract
Documents.
With each Application for Payment the Construction Manager shall submit
payrolls, petty cash accounts, receipted invoices or invoices with check
vouchers attached, and any other evidence reasonably required by the Owner
to demonstrate that cash disbursements or obligations already made or
incurred by the Construction Manager on account of the Work equal or exceed
(1) progress payments already received by the Construction Manager less (2)
that portion of those payments attributable to the Construction Manager's Fee
plus (3) payrolls and other costs for the period covered by the present
Application for Payment.
Each Application for Payment shall be based upon the most recent Schedule
of Values submitted by the Construction Manager in accordance with the
Contract Documents. The Schedule of Values shall allocate the entire
Guaranteed Maximum Price among the various portions of the Work, except
that the Construction Manager's Fee shall be shown as a single separate
item. The Schedule of Values shall be prepared in such form and supported
by such data to substantiate its accuracy as the Owner may reasonably
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require and shall be used as a basis for reviewing the Construction Manager's
Applications for Payment.
3 Applications for Payment shall show the percentage completion of each
portion of the Work as of the end of the period covered by the Application for
Payment. The percentage completion shall be the lesser of (1) the
percentage of that portion of the Work which has actually been completed or
(2) the percentage obtained by dividing (a) the expense which has actually
been incurred by the Construction Manager on account of that portion of the
Work for which the Construction Manager has made or intends to make actual
payment prior to the next Application for Payment by (b) the share of the
Guaranteed Maximum Price allocated to that portion of the Work in the
schedule of values.
4 Subject to other provisions of the Contract Documents, the amount of each
progress payment shall be computed as follows:
Take that portion of the Guaranteed Maximum Price properly allocable
to completed Work as determined by multiplying the percentage
completion of each portion of the Work by the share of the Guaranteed
Maximum Price allocated to that portion of the Work in the schedule of
values. Pending final determination of cost to the Owner of changes in
the Work, amounts not in dispute may be included, even though the
Guaranteed Maximum Price has not yet been adjusted by Change
Order.
.2 Add that portion of the Guaranteed Maximum Price properly allocable
to materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work or, if approved in advance by the
Owner, suitably stored off the site at a location agreed upon in writing.
5 Except with the Owner's prior approval, payments to Subcontractors shall be
subject to retention of not less than 10 percent (10%) up to half the contract
value. The Owner and the Construction Manager shall agree upon a mutually
acceptable procedure for review and approval of payments and retention for
subcontracts.
6 Except with the Owner's prior approval, the Construction Manager shall not
make advance payments to suppliers for materials or equipment which have
not been delivered and stored at the site.
7 Subcontractors shall comply with IL Prevailing Wage Act, 820 ILCS 130/1.
8.4 Late Payments. If the Owner fails to pay the Construction Manager at the time
payment of any amount becomes due, then the Construction Manager may suspend
the Work upon five days advance written notice until payment of the amount owing
has been received, in which case the Contract Time shall be equitably adjusted by
Change Order. Payments due but unpaid shall bear interest at the rate of 1 % per
month, and the Construction Manager shall be entitled to recover all costs, including
attorney's fees, incurred in enforcing payment.
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8.5 Title. The Construction Manager warrants and guarantees that title to all Work,
materials and equipment covered by an Application for Payment, whether
incorporated in the Project or not, will pass to the Owner free and clear of all liens,
claims, security interests or encumbrances upon receipt of such payment by the
Construction Manager.
8.6 Final Payment. Final Payment shall be due and payable when the Work is fully
completed. Before issuance of any final payment, the Owner may request
satisfactory evidence that all payrolls, materials bills and other indebtedness
connected with the Work have been or will be paid or otherwise satisfied. In
accepting final payment, the Construction Manager waives all claims except those
previously made in writing and which remain unsettled. In making final payment, the
Owner waives all claims except for outstanding liens, improper workmanship or
defective materials appearing within one year after the date of Substantial
Completion, and terms of any special warranties required by the Contract Documents.
The amount of the final payment shall be calculated as follows:
Take the sum of the Cost of the Work substantiated by the
Construction Manager's final accounting, but not more than the
Guaranteed Maximum Price.
2 Subtract the aggregate of previous payments made by the Owner. If
the aggregate of previous payments made by the Owner exceeds the
amount due the Construction Manager, the Construction Manager
shall reimburse the difference to the Owner.
2 The Owner's engineers will review and report in writing on the Construction
Manager's final accounting within 7 days after delivery of the final accounting
to the Owner by the Construction Manager. Based upon such Cost of the
Work as the Owner's engineers report to be substantiated by the Construction
Manager's final accounting., the Owner will, within twenty-one (21) days after
receipt of the written report of the Owner's engineers, either make final
payment as requested to the Construction Manager, or notify the Construction
Manager in writing of the Owner's reasons for withholding part or all of the
requested final payment.
3 If, subsequent to final payment and at the Owner's request, the Construction
Manager incurs costs described in Paragraph 8.7 and not excluded by
Paragraph 8.8 (1) to correct nonconforming Work, or (2) arising from the
resolution of disputes, the Owner shall reimburse the Construction Manager
such costs and the Construction Manager's Fee, if any, related thereto on the
same basis as if such costs had been incurred prior to final payment, but not
in excess of the Guaranteed Maximum Price. If the Construction Manager
has participated in savings, the amount of such savings shall be recalculated
and appropriate credit given to the Owner in determining the net amount to be
paid by the Owner to the Construction Manager.
8.7 Cost of the Work. The term "Cost of the Work" shall mean costs incurred by the
Construction Manager in the proper performance of the Work and shall include all
labor equipment and material required to perform the tasks outlined as the
"Construction Manager's Responsibilities" in Article 3 herein, and shall also include
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payments made to Subcontractors in accordance with the requirements of the
subcontracts for such work.
8.8 Accounting Records. The Construction Manager shall keep full and detailed
accounts and exercise such controls as may be necessary for proper financial
management under this Contract. The accounting and control systems shall be
reasonably satisfactory to the Owner. The Owner and the Owner's engineers shall
be afforded access to the Construction Manager's records, books, correspondence,
instructions, drawings, receipts, subcontracts, purchase orders, vouchers,
memoranda and other data relating to this Project, and the Construction Manager
shall preserve these for a period of three years after final payment, or for such longer
period as may be required by law.
ARTICLE 9 - CHANGES
9.1 Change Orders. Changes in the Work which are within the general scope of this
Contract may be accomplished by Change Order without invalidating this Contract. A
Change Order is a written instrument, issued after execution of this Contract signed
by the Owner and Construction Manager stating their agreement upon a change and
any adjustment in the Guaranteed Maximum Price and/or the date of Substantial
Completion. The Construction Manager shall not be obligated to perform changed
Work until the Change Order has been executed by the Owner and Construction
Manager.
9.2 Costs. An increase or decrease in the Guaranteed Maximum Price resulting from a
change in the Work shall be determined by one or more of the following methods:
Unit prices as set forth in this Contract or as subsequently agreed (but if the
original quantities are altered to a degree that application of previously agreed
unit prices would be inequitable to either the Owner or the Construction
Manager, the Unit Prices shall be equitably adjusted);
2 A mutually accepted, itemized lump sum;
3 Time and materials.
Construction Manager's fee shall be proportionately increased in all Change Orders
that increase the Guaranteed Maximum Price, but shall not be proportionately
decreased by a Change Order that decreases the Guaranteed Maximum Price. If the
parties cannot agree on the price term of a Change Order, then the Change Order will
be calculated on the basis of actual time and materials costs incurred. If at the
Owner's request the Construction Manager incurs substantial costs or time
investigating a proposed change which is never ultimately made, the Guaranteed
Maximum Cost and Contract Time shall be equitably adjusted.
9.3 Unknown Conditions. If in the performance of the Work, the Construction Manager
finds latent, concealed or subsurface physical conditions which differ from the
conditions the Construction Manager reasonably anticipated, or if physical conditions
are materially different from those normally encountered and generally recognized as
inherent in the kind of work provided for in this Contract, then the Guaranteed
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Maximum Price and/or the Date of Substantial Completion shall be equitably adjusted
by Change Order within a reasonable time after the conditions are first observed.
9.4 Claims. For any claim for an increase in the Guaranteed Maximum Price and/or an
extension in the date of Substantial Completion, the Construction Manager shall give
the Owner written notice of the claim within 21 days after the Construction Manager
first recognizes the condition giving rise to the claim. Except in an emergency, notice
shall be given before proceeding with the Work. In any emergency affecting the
safety of persons and/or property, the Construction Manager shall act, at its
discretion, to prevent threatened damage, injury or loss. Any change in Guaranteed
Maximum Price and/or Date of Substantial Completion resulting from such claim shall
be effectuated by Change Order.
ARTICLE 10 - INSURANCE AND BONDING
10.1 The Construction Manager's Insurance. The Construction Manager and the
subcontractors shall obtain and maintain insurance coverage for the following claims
which may arise out of the performance of this Contract, whether resulting from the
Construction Manager's operations or by the operations of any Subcontractor, anyone
in the employ of any of them, or by an individual or entity for whose acts they may be
liable:
workers' compensation, disability benefit and other employee benefit claims
under acts applicable to the Work;
2 under applicable employers' liability law, bodily injury, occupational sickness,
disease or death claims of the Construction Manager's employees;
3 bodily injury, sickness, disease or death claims for damages to persons not
employed by the Construction Manager;
4 usual personal injury liability claims for damages directly or indirectly related to
the person's employment by the Construction Manager or for damages to any
other person;
5 damage to or destruction of tangible property, including resulting loss of use,
claims for property other than the work itself and other property insured by the
Owner;
6 bodily injury, death or property damage claims resulting from motor vehicle
liability in the use, maintenance or ownership of any motor vehicle; and
7 contractual liability claims involving the Construction Manager's indemnity
obligations.
The Construction Manager's Commercial General and Automobile Liability Insurance shall be
written for not less than the following limits of liability:
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Commercial General Liability Insurance
Each Occurrence Limit
$1,000,000
General Aggregate Limit
$2,000,000
Products/Completed Operations Agg.
$2,000,000
Personal & Advertising Injury Limit
$1,000,000
Fire Damage (any one fire)
$ 100,000
Medical Expenses, each person
$ 10,000
Comprehensive Automobile Liability Insurance
Combined Single Limit, each accident $1,000,000
or
Bodily Injury (per person) $1,000,000
Bodily Injury (per accident) $1,000,000
Property Damage (per accident) $1,000,000
Worker's Compensation & Employer's Liability
Worker's Compensation Statutory Limits
Employer's Liability
Bodily Injury by Accident $ 500,000 each accident
Bodily Injury by Disease $ 500,000 policy limit
Bodily Injury by Disease $ 500,000 each employee
Commercial Umbrella/Excess Liability
Each Occurrence $2,000,000
Aggregate $2,000,000
Professional Liability
Each Occurrence $2,000,000
Aggregate $2,000,000
Commercial General Liability Insurance may be arranged under a single policy for the
full limits required or by a combination of underlying policies and an Excess or
Umbrella Liability policy. The policies shall contain a provision that coverage will not
be canceled or not renewed until at least thirty (30) days' prior written notice has been
given to the Owner. Certificates of insurance showing required coverage to be in
force shall be provided to the Owner prior to commencement of the Work. The
Owner shall be named as an additional insured on all policies except the Workman's
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Compensation and Employer's Policies. The Construction Manager's Policy shall be
primary to the Owner's insurance coverages which shall be considered excess only.
Products and Completed Operations insurance shall be maintained for a minimum
period of at least 1 year(s) after the date of Substantial Completion,
10.2 The Owner's Insurance. The Owner shall obtain and maintain property insurance in a
form reasonably acceptable to the Construction Manager upon the entire Project for
the full cost of replacement at the time of any loss. This insurance shall include as
named insureds the Owner, Construction Manager, Engineer, Subcontractors and
Subsubcontractors. This insurance shall insure against loss from the perils of fire and
extended coverage, and shall include "all risk" insurance for physical loss or damage
including without duplication of coverage, at least: theft, vandalism, malicious
mischief, transit, collapse, falsework, temporary buildings, debris removal, flood,
earthquake, testing, and damage resulting from defective design, workmanship or
material. The Owner' shall increase limits of coverage, if necessary, to reflect
estimated replacement cost. The Owner shall be responsible for any co-insurance
penalties or deductibles. If the Owner occupies or uses a portion of the Project prior
to its Substantial Completion, such occupancy or use shall not commence prior to a
time mutually agreed to by the Owner and the Construction Manager and to which the
insurance company or companies providing the property insurance have consented
by endorsing the policy or policies. This insurance shall not be canceled or lapsed on
account of partial occupancy. Consent of the Construction Manager to such early
occupancy or use shall not be unreasonably withheld. Upon the Construction
Manager's request, the Owner shall provide the Construction Manager with a copy of
all policies before an exposure to loss may occur. Copies of any subsequent
endorsements shall be furnished to the Construction Manager. The Construction
Manager shall be given thirty (30) days' notice of cancellation, non -renewal, or any
endorsements restricting or reducing coverage. The Owner shall give written notice
to the Construction Manager before commencement of the Work if the Owner will not
be obtaining property insurance. In that case, the Construction Manager may obtain
insurance in order to protect its interest in the Work as well as the interest of the
Engineer, Subcontractors and Subsubcontractors in the Work. The Guaranteed
Maximum Price shall be increased by the cost of this insurance through Change
Order. If the Construction Manager is damaged by failure of the Owner to purchase
or maintain property insurance or to so notify the Construction Manager, the Owner
shall bear all reasonable costs incurred by the Construction Manager arising from the
damage. All or part of the coverage may be provided by the Owner through an
intergovernmental risk insurance pool.
10.3 Property Insurance Loss Adjustment. Any insured loss shall be adjusted with the
Owner and the Construction Manager and made payable to the Owner and
Construction Manager as trustees for the insureds, as their interests may appear,
subject to any applicable mortgagee clause. Upon the occurrence of an insured loss,
monies received will be deposited in a separate account and the trustees shall make
distribution in accordance with the agreement of the parties in interest, or in the
absence of such agreement, in accordance with the dispute resolution provisions of
this Contract. If the trustees are unable to agree between themselves on the
settlement of the loss, such dispute shall also be submitted for resolution pursuant to
the dispute resolution provisions of this Contract.
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10.4 Waiver of Subrogation. The Owner and Construction Manager waive all rights
against each other, the Engineer, and any of their respective employees, agents,
consultants, Subcontractors and Subsubcontractors, for damages caused by risks
covered by insurance provided in Paragraph 10.2 to the extent they are covered by
that insurance, except such rights as they may have to the proceeds of such
insurance held by the Owner and Construction Manager as trustees. The
Construction Manager shall require similar waivers from all Subcontractors, and shall
require each of them to include similar waivers in their subsubcontracts and
consulting agreements. The Owner waives subrogation against the Construction
Manager, Engineer, Subcontractors and Subsubcontractors on all property and
consequential loss policies carried by the Owner on adjacent properties and under
property and consequential loss policies purchased for the Project after its
completion. If the policies of insurance referred to in this Paragraph require an
endorsement to provide for continued coverage where there is a waiver of
subrogation, the owners of such policies will cause them to be so endorsed.
10.5 Bonds. Performance and Payment Bonds will not be provided on this project.
ARTICLE 11 -TERMINATION
11.1 By the Construction Manager. Upon seven (7) days' written notice to the Owner, the
Construction Manager may terminate this Contract for any of the following reasons:
if the Work has been stopped for a thirty (30) day period;
a. under court order or order of other governmental authorities having
jurisdiction;
as a result of the declaration of a national emergency or other
governmental act during which, through no act or fault of the
Construction Manager, materials are not available; or
because of the Owner's failure to pay the Construction Manager in
accordance with this Agreement;
2 if the Work is suspended by the Owner for sixty (60) days;
3 if the Owner materially delays the Construction Manager in the performance of
the Work without agreeing to an appropriate Change Order;
4 if the Owner otherwise materially breaches this Contract; or
5 if the Owner fails to furnish reasonable evidence that sufficient funds are
available and committed for the entire cost of the Project in accordance with
Section 6.3 of this Contract.
Upon termination by the Construction Manager in accordance with this paragraph, the
Construction Manager shall be entitled to recover from the Owner payment for all
Work executed and for any proven loss, cost or expense in connection with the Work,
plus all demobilization costs and reasonable damages. In addition, the Construction
Manager shall be paid an amount calculated as set forth in paragraph 11.3.
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11.2 By the Owner for Cause. If the Construction Manager persistently fails to perform any
of its obligations under this Contract, the Owner may, after seven (7) days' written
notice, during which period the Construction Manager fails to perform or to begin to
perform such obligation, undertake to perform such obligations itself. The Contract
Price shall be reduced by the cost to the Owner of performing such obligations. Upon
seven (7) days' written notice to the Construction Manager and the Construction
Manager's surety, if any, the Owner may terminate this Contract for any of the
following reasons:
if the Construction Manager persistently utilizes improper materials and/or
inadequately skilled workers;
2 if the Construction Manager does not make proper payment to laborers,
material suppliers or subcontractors and refuses or fails to rectify same;
3 if the Construction Manager persistently fails to abide by the orders,
regulations, rules, ordinances or laws of governmental authorities having
jurisdiction; or
4 if the Construction Manager otherwise materially breaches this Contract.
If the Construction Manager fails to cure within the seven (7) days, the Owner, without
prejudice to any other right or remedy, may take possession of the site and complete
the Work utilizing any reasonable means. In this event, the Construction Manager
shall not have a right to further payment until the Work is completed. If the
Construction Manager files a petition under the Bankruptcy Code, this Contract shall
terminate if the Construction Manager or the Construction Manager's trustee rejects
the Agreement or, if there has been a default, the Construction Manager is unable to
give adequate assurance that the Construction Manager will perform as required by
this Contract or otherwise is unable to comply with the requirements for assuming this
Agreement under the applicable provisions of the Bankruptcy Code. In the event the
Owner exercises its rights under this paragraph, upon the request of the Construction
Manager, the Owner shall provide a detailed accounting of the costs incurred by the
Owner.
11.3 Termination by the Owner Without Cause. If the Owner terminates this Contract
other than as set forth in Paragraph 11.2, the Owner shall pay the Construction
Manager for the Cost of all Work executed and for any proven loss, cost or expense
in connection with the Work, plus all demobilization costs. In addition, the
Construction Manager shall be paid an amount calculated as set forth below:
If the Owner terminates this Contract prior to commencement of the
construction, the Construction Manager shall be paid 5% of the Guaranteed
Maximum Price.
2 If the Owner terminates this Contract after commencement of the construction,
the Construction Manager shall be paid 5% of the remaining balance of the
Guaranteed Maximum Price.
3 The Owner shall also pay to the Construction Manager fair compensation,
either by purchase or rental at the election of the Owner, for any equipment
retained. The Owner shall assume and become liable for obligations,
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commitments and unsettled claims that the Construction Manager has
previously undertaken or incurred in good faith in connection with the Work or
as a result of the termination of this Contract. As a condition of receiving the
payments provided under this Article 11, the Construction Manager shall
cooperate with the Owner by taking all steps necessary to accomplish the
legal assignment of the Construction Manager's rights and benefits to the
Owner, including the execution and delivery of required papers.
11.4 Suspension by the Owner for Convenience. The Owner for its convenience may
order the Construction Manager in writing to suspend, delay or interrupt all or any part
of the Work without cause for such period of time as the Owner may determine to be
appropriate. Adjustments shall be made for increases in the Guaranteed Maximum
Price and/or the date of Substantial Completion caused by suspension, delay or
interruption. No adjustment shall be made if the Construction Manager is or
otherwise would have been responsible for the suspension, delay or interruption of
the Work, or if another provision of this Contract is applied to render an equipment
adjustment.
ARTICLE 12 - DISPUTE RESOLUTION
12.1 Step Negotiations. The parties shall attempt in good faith to resolve all disputes
promptly by negotiation, as follows. Either party may give the other party written
notice of any dispute not resolved in the normal course of business. Management
representatives of both parties one level above the Project personnel who have
previously been involved in the dispute shall meet at a mutually acceptable time and
place within ten (10) days after delivery of such notice, and thereafter as often as they
reasonably deem necessary, to exchange relevant information and to attempt to
resolve the dispute. If the matter has not been resolved within thirty (30) days from
the referral of the dispute to such management representatives, or if no meeting has
taken place within fifteen (15) days after such referral, the dispute shall be referred to
senior managers under the aforesaid procedure. If the matter has not been resolved
by such senior managers, either party may initiate mediation as provided hereinafter.
If a negotiator intends to be accompanied at a meeting by an attorney, the other
negotiator shall be given at least three (3) working days' notice of such intention and
may also be accompanied by an attorney. All negotiations pursuant to this clause are
confidential and shall be treated as compromise and settlement negotiations for
purposes of the Federal Rules of Evidence and applicable state Rules of Evidence.
12.2 Mediation. In the event that any dispute arising out of or relating to this Contract is
not resolved in accordance with the procedures provided in Section 12.1, such
dispute may be submitted to mediation with American Arbitration Association ("AAA")
or JAMS/Endispute, Inc. If the mediation process has not resolved the dispute within
thirty (30) days of the submission of the matter to mediation, or such longer period as
the parties may agree to, the dispute shall be decided by arbitration as set forth
below.
12.3 Arbitration. Deleted.
12.4 Continued Performance of the Work. In the event of any dispute, the Construction
Manager shall continue to perform the Work and maintain its progress pending final
determination of the dispute, provided the Owner places a sum equal to 150% of the
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amount in dispute in an escrow account, reasonably satisfactory to both parties,
which specifies that the escrow agent shall distribute the escrow sum between the
parties in accordance with any agreement, arbitration award or court judgment
entered resolving the dispute.
ARTICLE 13 - LIQUIDATION AND LIMITATION OF LIABILITY
13.1 Limitation of Liability. The Owner acknowledges that the Construction Manager is a
limited liability company and agrees that any claim made by the Owner arising out of
or pertaining to this Contract shall be made against only the Construction Manager
and not against any director, officer, or employee of the Construction Manager or any
other company affiliated with the Construction Manager. The Owner and persons
claiming through the Owner agree to limit the liability of the Construction Manager for
all claims arising out of or resulting from the performance of services under this
Contract to an amount equal to the Construction Manager's Fee.
13.2 Consequential Damages. Notwithstanding anything to the contrary in this Contract, in
no event shall the Construction Manager or any of its Subcontractors be liable for
consequential loss or damage, including but not limited to loss of use or profits, and
the Owner hereby releases the Construction Manager and its Subcontractors and the
Owner from any such liability.
13.3 Exclusive Remedies. Deleted.
ARTICLE 14 - MISCELLANEOUS
14.1 Project Sign. The Owner agrees that the Construction Manager and Engineer will be
properly identified and will be given appropriate credit on all signs, press releases and
other forms of publicity for the Project. Owner will permit the Construction Manager
and Engineer to photograph and make other reasonable use of the Project for
promotional purposes.
14.2 Notices. Notices to the parties shall be given at the addresses shown on the cover
page of this Contract by mail, fax or any other reasonable means.
14.3 Integration. This Contract is solely for the benefit of the parties, and no one is
intended to be a third party beneficiary hereto. This Contract represents the entire
and integrated agreement between the parties, and supersedes all prior negotiations,
representations or agreements, either written or oral.
14.4 Governing Law. This Contract shall be governed by the laws of the State of Illinois.
14.5 Severability. The partial or complete invalidity of any one or more provisions of this
Contract shall not affect the validity or continuing force and effect of any other
provision.
14.6 Assignment. Neither party to this Contract shall assign the Contract as a whole
without written consent of the other, except that the Owner may collaterally assign
this Contract to a lender if required to secure financing for this Project.
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