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R-68-07 Approve Design Build Contract w/ Wight Construction Inc for Police Fac.RESOLUTION 2 4 8 - of A RESOLUTION TO APPROVE A DESIGN BUILD CONTRACT WITH WIGHT CONSTRUCTION, INC. FOR A POLICE FACILITY NOW, THEREFORE BE IT RESOLVED by the President and Board of Trustees of the Village of Lemont that: SECTION 1: The Village President is authorized to execute a Design Build Contract with Wight to build the Police Department Facility with a Guaranteed Maximum Price of $7,724,293, a copy of which is attached hereto as Exhibit A. SECTION 2: Effective Date: This Resolution shall be in full force and effect from and after its passage, approval and publication in the manner provided by law. The Village Clerk of the Village of Lemont shall certify to the adoption of this Ordinance and cause the same to be published in pamphlet form. PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COOK, WILL AND DU PAGE COUNTIES ILLINOIS on this 5 Day of %J1,vn LQX , 2007. AYES NAYS PASSED ABSENT Debby Blatzer ✓ Peter Coules Cliff Miklos :i Brian Reaves c/ Ronald Stapleton ✓" Jeanette Virgilio Attest: JO N F. PIAZZA, Vill CHARLENE SMOLLEN, Village Clerk resident STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER Based on a Guaranteed Maximum Price THIS AGREEMENT is made as of the 5th day of November, 2007. BETWEEN the Owner: Village of Lemont 418 Main Street Lemont, IL 60439 and the Construction Manager: Wight Construction, Inc. 2500 N. Frontage Road Darien, IL 60561 The Project is: Provide total professional Construction Management services; Design Services to include Construction Bidding, Administration and all labor, material and equipment in such for the new Village of Lemont Police Facility as described in the attached Project Scope Document. (Exhibit A). The Owner and Construction Manager agree as set forth below. 1.1 ARTICLE I THE PROJECT TEAM AND EXTENT OF AGREEMENT The Construction Manager agrees to furnish or arrange for the construction services set forth herein and agrees to furnish efficient business administration and superintendence, and to use its best efforts to complete the Project in an expeditious and economical manner consistent with the interests of the Owner. The Construction Manager shall act on behalf of the Owner as the Owner's agent, and all subcontractors shall communicate only through the Construction Manager. However, all such subcontracts shall be deemed to have been obtained for the benefit of the Owner and the Owner shall be deemed to be a third -party beneficiary of each and every subcontract. The Project Team. The Construction Manager, the Owner and the Construction Manager's consultants and subcontractors, collectively called the "Project Team ", shall work cooperatively from the beginning of Design through construction completion. 1.1.1 Extent of Agreement. The Contract Documents represent the entire agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements. This Agreement shall not be superseded by any provisions of the documents for construction and may be amended only by written instrument signed by both Owner and Construction Manager. Village of Lemont 1 11 -5 -07 Police Facility 1.2 Definitions 1.2.1 Project is the design and construction of the facilities described above. 1.2.2 Work is comprised of all Construction Manager's construction and other services required by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents. 1.2.3 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents. 1.2.4 Owners, Project Criteria are developed by or for the Owner to describe Owner's program requirements and objectives for the project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Construction Manager's performance of the Work. 1.2.5 Site is the land or premises on which the Project is located. 1.2.6 Substantial Completion is the date on which the Work, or agreed upon portion of the Work, is sufficiently complete so that the Owner can occupy and use the Project or a portion thereof for its intended purposes. 1.2.7 Contract Documents, which constitute the entire Agreement between the Owner and Construction Manager, consist of: .1 This Contract, including all exhibits thereto. .2 Scope Change Orders. .3 Written amendments to this Agreement. .4 Owner's Project Criteria 1.2.8 Subcontractor is a person or entity that has a direct contract with the Construction Manager to perform any work in connection with the Project, as well as all sub - subcontractors, suppliers and materialmen. 1.2.9 Preconstruction services are defined as Bidding and Construction Administration /Observation services. ARTICLE 2 CONSTRUCTION MANAGER'S SERVICES & RESPONSIBILITIES 2.1 Construction Manager's Services. Construction Manager shall furnish or arrange for the following services for execution and completion of the Agreement, which shall constitute the "Work ", through its employees or subcontractors: 2.1.1 The parties shall meet within seven (7) days after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those related to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. 2.1.2 Construction Manager's Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required to supervise the Work. Construction Manager's Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Construction Manager. 2.1.3 The Construction Manager shall keep such full and detailed accounts as may be necessary for Village of Lemont 2 11 -5 -07 Police Facility proper financial management under this Agreement, and shall furnish the Owner with an estimated cash flow schedule for the Project, if requested. Construction Manager shall provide the Owner with a Schedule of Values allocated to major segments of work for the Project, if requested. 2.1.4 The Construction Manager shall provide the Owner with a construction schedule for the Project (Exhibit A). This Schedule indicates the dates for the starting and completion of the various stages of the construction, and contains the necessary information to allow the Owner to monitor the progress of the work. It shall be revised as required in order to achieve the contract time schedule described in Article 6 2.1.5 The Construction Manager itself, or through subcontractors, shall provide all materials and equipment, supervision, inspection, testing, labor, tools, construction equipment and specialty items necessary to execute and complete construction of the Project. 2.1.6 The Construction Manager shall take necessary precautions for the safety of its employees on the Work, and shall comply with all applicable provisions of federal, state and municipal safety laws and shall include in all subcontracts provisions which require its subcontractors to be responsible for the safety of their employees on the Work, and to comply with all applicable provisions of federal, state and municipal safety laws. 2.1.7 The Construction Manager shall give notices and comply with laws, ordinances, rules, regulations and lawful orders of public authorities relating to the Project. 2.1.8 The Contract Price and /or Contract Time(s) shall be adjusted to compensate Construction Manager for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work. Such effects may include, without limitation, revisions Construction Manager is required to make to the Construction Documents because of Legal Requirements. 2.1.9 The Construction Manager shall keep the premises of the Project free from accumulation of waste materials caused by the Construction Manager's operations. At the completion of the Work, the Construction Manager shall remove from the Project all tools, surplus materials, construction equipment, machinery, and waste materials. 2.1.10 The Construction Manager shall prepare Subcontractor Change Orders for changes required to satisfy the Construction Manager's intent, and shall provide a copy of these changes to the Owner for information only. 2.1.11 The Construction Manager shall maintain in good order at the site one record copy of the drawings, specifications, shop drawings, Change Orders and other Modifications, marked currently to record changes made during construction. These shall be delivered to the Owner upon completion of the Project. 2.1.12 The Construction Manager shall prepare Owner requested Scope Change Orders for all project scope changes that require a change in the Contract Price, for the Owner's approval and execution in accordance with this agreement. 2.1.13 The Construction Manager shall be permitted to install a 5" diameter stainless steel identification plaque at a publicly visible location to be determined jointly. 2.2 Warranties 2.2.1 The Construction Manager warrants to the Owner that all materials and equipment furnished Village of Lemont 3 11 -5 -07 Police Facility under this Agreement shall be new, unless otherwise specified, unless existing material is designated to be reused, and that all construction work shall be of good quality, free from improper workmanship and defective materials. The Construction Manager agrees to correct all work performed by it under this Agreement which proves to be defective in material or workmanship within a period of one year from the date of Substantial Completion as defined in Paragraph 6.1, provided that this warranty covers equipment, accessories and parts manufactured by others only to the extent of liability to Construction Manager on the part of the manufacturer thereof, and no warranty is provided for Owner provided equipment. Any warranty or guarantee obtained by Construction Manager from any such manufacturer shall be deemed to have been obtained for the benefit of Owner. 2.2.2 The Construction Manager shall secure required certificates of inspection, testing or approval required for building construction and deliver them to the Owner. 2.2.3 The Construction Manager shall collect all equipment manuals and deliver them to the Owner, together with all written warranties from equipment manufacturers. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 The Owner shall provide full information regarding its requirements for the Project. 3.2 The Owner shall designate a representative who shall be fully acquainted with the Project, and have authority to approve changes in the scope of the Project or subcontract change orders when required by state statutes, render approvals and decisions promptly, and furnish information expeditiously and in time to meet the dates set forth in the Schedule. The Owner's Designated representative is the Village Administrator. 3.3 If the Owner becomes aware of any fault or defect in the Work or nonconformance with the Drawings or Specifications, it shall give prompt written notice thereof to the Construction Manager. 3.4 The Owner shall furnish a legal description and certified land survey of the site, giving, as applicable, grades and lines of streets, alleys, pavements and adjoining property, rights -of -way restrictions, easements, encroachments, zoning, deed restrictions, elevations and contours of the site; locations, dimensions and complete data pertaining to existing buildings, other improvements and trees; and full information concerning available services and utility lines, both public and private, above grade and below grade, including inverts and depths. 3.5 The Owner shall furnish services of geotechnical engineers and other consultants when such services are deemed necessary by the Construction Manager. Geotechnical engineers or other consultants shall be selected by mutual agreement. Such services shall include, as required, applicable test borings, test pits, soil bearing values, percolation tests, air and water pollution tests, and other necessary operations for determining subsoil, air and water conditions, with reports and appropriate professional recommendations. 3.6 The services and information required by the above paragraphs shall be furnished with reasonable promptness at Owner's expense and the Construction Manager shall be entitled to rely upon the accuracy and the completeness thereof. 3.7 At Construction Manager's request, Owner shall promptly furnish reasonable evidence satisfactory to Construction Manager that Owner has adequate funds available and committed to fulfill all of Owner's contractual obligations under the Contract Documents. If Owner fails to furnish such financial information in a timely manner, Construction Manager may stop Work under Section 15.3 Village of Lemont 4 11 -5 -07 Police Facility hereof or exercise any other right permitted under the Contract Documents. 3.8 Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees. 3.9 The Owner shall pay for all utility connection fees and special facility charges, if required, rendered by utilities for connection of permanent utility services to the Project. 3.10 Owner is responsible for all work performed on the Site by separate contractors under the Owner's control. Owner shall contractually require its separate contractors to cooperate with, and coordinate their activities so as not to interfere with, Construction Manager in order to enable Construction Manager to timely complete the Work consistent with the Contract Documents. 3.11 The Owner shall communicate with subcontractors, and suppliers only through the Construction Manager. ARTICLE 4 HAZARDOUS CONDITIONS & DIFFERING SITE CONDITIONS 4.1 Hazardous Conditions. Unless otherwise expressly provided in the Contract Documents to be a part of the Work, Construction Manager is not responsible for any Hazardous Conditions encountered at the Site. Upon encountering any Hazardous Conditions, Construction Manager will stop Work immediately in the affected area and duly notify the Owner and, if required by Legal Requirements, all government or quasi - government entities with jurisdiction over the project Site. 4.1.1 Upon receiving notice of the presence of suspected Hazardous Conditions, Owner shall take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless. Such necessary measures shall include Owner retaining qualified independent experts to (i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have been encountered, (ii) prescribe the remedial measures that Owner must take either to remove the Hazardous Conditions or render the Hazardous Conditions harmless. 4.1.2 Construction Manager shall be obligated to resume Work at the affected area of the Project only after Owner's expert provides it with written certification that (i) the Hazardous Conditions have been remove or rendered harmless and (ii) all necessary approvals have been obtained from all government and quasi - government entities having jurisdiction over the Project or Site. 4.1.3 Construction Manager will be entitled to an adjustment in its Contract Price and /or Contract Time(s) to the extent Construction Manager's cost and /or time of performance have been adversely impacted by the presence of Hazardous Conditions. 4.1.4 To the fullest extent permitted by law, Owner shall indemnify, defend and hold harmless Construction Manager, Design Consultants, Subcontractors, anyone employed directly or indirectly for any of them, and their officers, directors, employees and agents, from and against any and all claims, losses, damages, liabilities and expenses, including attorney's fees and expenses, arising out of or resulting from the presence, removal or remediation of Hazardous Conditions at the Site. 4.1.5 Notwithstanding the preceding provisions of the Section 4, Owner is not responsible for Hazardous Conditions introduced to the Site by Construction Manager, Subcontractors or anyone for whose acts they may be liable. Construction Manager shall indemnify, defend Village of Lemont 5 11 -5 -07 Police Facility and hold harmless Owner and Owner's officers, directors, employees an agents from and against all claims, losses, damages, liabilities and expenses, including attorneys' fees and expenses, arising out of or resulting from those Hazardous Conditions introduced to the Site by Construction Manager, Subcontractors or anyone for whose acts they may be liable. 4.2 Differing Site Conditions. Concealed or latent physical conditions or subsurface conditions at the Site that (i) materially differ from the conditions indicated in the Contract Documents or (ii) are of an unusual nature, differing materially from the conditions ordinarily encountered and generally recognized as inherent tin the Work are collectively referred to herein as "Differing Site Conditions ". If Construction Manager will be entitled to an adjustment in the Contract Price and /or Contract Time(s) to the extent Construction Manager's cost and /or time of performance are adversely impacted by the Differing Site Condition. 4.2.1 Upon encountering a Differing Site Condition, Construction Manager shall provide prompt written notice to Owner of such condition, which notice shall not be later then fourteen (14) days after such condition has been encountered. Construction Manager shall, to the extent reasonably possible, provide such notice before the Differing Site Condition has been substantially disturbed or altered. ARTICLE 5 SUBCONTRACTS AND OTHER AGREEMENTS 5.1 Those portions of the work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall only obtain bids and /or proposals from such Subcontractors and from suppliers of materials or equipment fabricated especially for the work. The Owner may request specific persons or entities from whom the Construction Manager shall obtain bids; however, the Construction Manager is not obligated or required to seek bids or contract with anyone to whom the Construction Manager has reasonable objection. 5.2 Subcontracts or other agreements shall conform to the payment provisions of Article 14, and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. 5.3 Construction Manager shall notify Owner of the identity of all Subcontractors and material suppliers, if requested by the Owner, prior to entry of such Subcontractors or material suppliers into the project and shall provide copies of Contracts, Performance and Payment Bonds, if required, and Insurance Certificates to Owner. 5.4 All subcontractors will be required to be licensed with the Village of Lemont per the Lemont Municipal Code section 15.00.070(A) and Chapter 5.20. 5.5 The Owner and Construction Manager shall work together to select the Subcontractor that best satisfies the requirements of both the Owner and Construction Manager. ARTICLE 6 DATE OF COMMENCEMENT, SUBSTANTIAL COMPLETION AND FINAL COMPLETION 6.1 Construction shall commence no later than April 1, 2008. The Construction Manager shall diligently prosecute the Work and achieve substantial completion no later than April, 1, 2009 and final completion no later than May 1, 2009. 6.2 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so the Owner can Village of Lemont 6 11 -5 -07 Police Facility occupy or utilize the Work for its intended use. 6.3 If the Construction Manager is delayed in the progress of the Project by acts or neglect of the Owner, Owner's employees, separate contractors employed by the Owner, changes ordered in the Work not caused by the fault of the Construction Manager, labor disputes, fire, unusual delay in transportation, adverse weather conditions not reasonably anticipatable, unavoidable casualties, or other causes beyond the Construction Managers' control, or by delay authorized by the Owner's pending arbitration or another cause which the Owner and Construction Manager agree is justifiable, the contract time shall be reasonably extended by Change Order. 6.4 Commencement of Warranties. Warranties called for by this agreement or by the Drawings and Specifications shall commence on the Date of Substantial Completion of the Project or designated portion thereof, as reflected by the Certificate of Substantial Completion. ARTICLE 7 CONTRACT SUM The Construction Manager shall be paid by the Owner a contract sum consisting of the Cost of the Work as defined in Article 8 and the Construction Manager's fee as set forth below: 7.1 Guaranteed Maximum Price. The sum of the Cost of the Work is $7,724,293.00. This sum is referred to in the Contract Documents as the Guaranteed Maximum Price. The Guaranteed Maximum Price shall not be adjusted except by additions or deletions set forth by written change order as provided in the Contract Documents. 7.2 Design Phase Compensation. The cost of services performed directly by the Architect /Engineer is computed separately and is independent from the Construction Manager's compensation for work or services directly performed by the Construction Manager's; these costs shall be shown as separate items on the applications for payment. 7.2.1 The Owner shall compensate the Construction Management Contractor for services performed during the Design Phase as described in Article 2 as follows: 7.2.2 Preconstruction services shall be performed for a Lump Sum Fee of Sixty-Six Thousand Dollars and 00 /100 (566,000). This Fee may have been earned under the Construction Manager's Preliminary Agreement and is included in the Guaranteed Maximum Price 7.3 Payments for Design Phase Services shall be due and payable within ten (10) days following presentation of the Construction Manager's monthly invoice to the Owner. If the Owner fails to pay the Construction Manager as agreed, then the Construction Manager shall have the right to stop the Work and be entitled to payments due plus interest as provided in Paragraph 13.2. 7.4 Construction Phase Compensation. The Owner shall compensate the Construction Manager for Work performed following the commencement of the Bidding and Construction Phase on the following basis: 7.1.2 The cost of the Work as allowed in Article 8; and 7.1.3 The Construction Manager's Fee in the amount of Two Hundred and Fifty —Eight Thousand, Nine Hundred and Seventy —Six Dollars and 00/100 ($258,976.00), subject to adjustment as provided in Paragraph 7.5. No further adjustments to the Construction Manager's fee shall be made unless the Project scope is increased and exceeds the Guaranteed Maximum Price. No fee shall be charged on coordination changes or minor changes. 7.2 Payment for Construction Phase Services shall be as set forth in Article 13. Village of Lemont 7 11 -5 -07 Police Facility 7.3 Construction Manager's Fee. The Construction Manager's Fee includes the following: .1 General and administrative expenses of the Construction Manager's principal and branch offices other than the field office, except as may be expressly included in Article 8; and .2 The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. 7.4 Adjustment in the Construction Manager's Fee. Adjustment in the Construction Manager's Fee shall be made as follows: .1 For changes in the Work as provided in Article 12, the Construction Manager's Fee shall be adjusted as follows: Changes shall be priced at the "direct cost" of the charge, except that (i) the cost of Overhead Items attributable to such change shall be charged at 10% of such direct cost; and (ii) the fee with respect to such change shall be charged at 5% of such direct cost, exclusive of the Overhead Items. .2 For delays in the Work not caused by the Construction Manager, there will be an equitable adjustment in the Construction Manager's Fee to compensate the Construction Manager for increased expenses; and 7.5 If the Construction Manager is placed in charge of managing the replacement of an insured or uninsured loss, the Construction Manager shall be paid an additional Fee in the same proportion that the Construction Manager's Fee bears to the estimated Cost of the Work. 7.6 The Cost of the Work includes a Contingency in the amount of $215, 514, which is available for the Construction Manager's use, for costs that are incurred in performing the Work that are not included in a specific line item. By way of example, and not as a limitation, such costs include, but will not be limited to, trade buy -out differentials, overtime, acceleration, costs in correcting defective, damaged or nonconforming Work and Subcontractor defaults. The Contingency is not available to the Owner for any reason, including changes in scope or any other item which would enable the Construction Manager to increase the Contract Price under the Contract Documents unless so offered to the Owner by the Construction Manager. The Contingency cannot be used to increase the Fee of the Construction Manager, unless expressly authorized by the Owner. The Construction Manager shall provide the Owner with notice of all anticipated charges against the Contingency. If any contingency remains at final completion of the project, the savings shall accrue to the Owner. In addition to the Contingency included in the cost of the work described above, the Owner shall establish a Contingency Allowance account of $359,190, which shall not be included within the GMAX price. This allowance is provided for potential cost increases beyond the GMAX value that is deemed mutually necessary for the success of the project. This Allowance can only be accessed with express written authorization by the Owner's Authorized Representative through a GMAX Change Order. The Owner's Authorized Representative may authorize up to $50,000 at one time from this account. Costs beyond $50,000 will require the Owners Corporate Authority approval. This allowance may be used for purposes of paying for issues related to unforeseen conditions as described above. All contingencies authorized by the Owner shall include a 3.5% Construction Management Fee Village of Lemont 8 11 -5 -07 Police Facility ARTICLE 8 COST OF THE WORK 8.1 The term Cost of the Work shall mean costs necessarily incurred by the Construction Manager in good faith in the proper performance of the Work approved by the Owner. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in this Article 8. 8.1.1 Labor Costs 8.1.1.1 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, at the off -site workshops. 8.1.1.2 Wages or salaries of the Construction Manager's supervisory and administrative personnel in connection with performance of the Work when stationed at the site. 8.1.1.3 Wages or salaries of the Construction Manager's personnel engaged off -site, but only for that portion of their time required for the Work. Personnel engaged at shops or on the road in expediting the product or transportation of materials or equipment, shall be considered stationed at the field office, and their salaries paid for that portion of their time spent on this Work. 8.1.1.4 Costs paid or incurred by the Construction Manager for taxes, insurance contributions, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pension (but not merit bonuses) provided such costs are based on wages and salaries included in the Cost of the Work under Clauses 8.1.1. through 8.1.1.3. 8.1.1.5 Payments properly made by Construction Manager to Subcontractors and Design Consultants for performance of portions of the Work, including any insurance and bond premiums incurred by Subcontractors and Design Consultants. 8.1.1.6 Costs incurred by the Construction Manager in preparing and maintaining progress schedules and reports, including computer and data processing expenses. 8.1.2 Subcontract Costs 8.1.2.1 Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts properly entered into under this Agreement. 8.1.2.2 Cost of premiums for all bonds required entered into under this agreement 8.1.3 Costs Of Materials fa Equipment Incorporated In The Completed Construction 8.1.3.1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. 8.1.3.2 Cost of materials described in the preceding Clause 8.1.3.1. in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be properly stored during the Village of Lemont 9 11 -5-07 Police Facility performance of the Work and turned over to the Owner at the completion of the Work or, at the Owner's option, shall be sold by the Construction Manager; amounts realized, if any, form such sale shall be credited to the Owner as a deduction form the Cost of the Work. 8.1.4 Costs Of Other Materials And Equipment, Temporary Facilities Ad Related Items 8.1.4.1 Costs, including transportation and maintenance, of all materials, supplies, office equipment, computers, software, temporary facilities and hand tools (not owned by the workmen) consumed in the performance of the Work by the Construction Manager. Any items used but not consumed, which are paid for by Owner, shall become the property of the Owner and shall be delivered to Owner upon completion of the Work in accordance with instructions furnished by Owner. Construction Manager may, however, agree to purchase any such items from Owner at a purchase price equal to the original cost to Owner less the reduction in fair market value resulting directly from use of any such item in connection with the Work or such other price which is mutually acceptable to Owner with any information and documentation necessary to verify the period of time for which such items were used in connection with the Work. 8.1.4.2 Rental charges of all necessary trailers, machinery and equipment, exclusive of hand tools, used at the site of the Work, whether rented from Construction Manager or others, including installation, minor repairs and replacements, dismantling, removal, transportation and delivery costs thereof. Such rental charges shall be consistent with those generally prevailing in the location of the Project. 8.1.4.3 Costs of removal of debris from the site. 8.1.4.4 Costs in connection with performance of the Work of telegrams and long- distance telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office. 8.1.5 Miscellaneous Costs 8.1.5.1 Sales, use or similar taxes imposed by a governmental authority which are related to the Work and for which the Construction Manager is liable. 8.1.5.2 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. 8.1.5.3 Fees of testing laboratories for tests required by the Contract Documents, deemed necessary by the Construction Manager. 8.1.5.4 All fuel and utility costs incurred in the performance of the Work. 8.1.5.5 Sales, use or similar taxes, tariffs or duties incurred in the performance of the Work. 8.1.5.6 Deposits lost for causes other than the Construction Manager's fault or negligence. 8.1.5.7 Expenses for local travel to and from the site for all of the Construction Manager's personnel for all work that is required to be performed at the project site. 8.1.5.8 Expenses for travel, lodging and subsistence for the Construction Manager incurred Village of Lemont 10 11 -5 -07 Police Facility while traveling in discharge of his duties associated with the work. All long distance travel requiring airfare and overnight accommodations shall be pre- approved by the Owner. 8.1.5.9 Losses and expenses for personal injury and property damage not compensated by insurance or otherwise sustained by the Construction Manager in connection with the Work, provided they have resulted from causes other than the fault or neglect of the Construction Manager. Such losses shall include settlements, made with the written consent and approval of the Owner. 8.1.6 Other Costs 8.1.6.1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. 8.1.6.2 Costs incurred by the Construction Manager in repairing or correcting defective, damaged or nonconforming Work, provided that such defective, damaged or nonconforming Work was beyond the reasonable control of the Construction Manager, or caused by the ordinary mistakes or inadvertence, and not the negligence, of the Construction Manager or those working by or through the Construction Manager. 8.1.7 Emergencies: Repairs To Damaged, Defective Or Nonconforming Work - The Cost of the Work shall also include costs that are incurred by the Construction Manager: 8.1.7.1 In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, to the extent not caused or capable of prevention through proper performance of the Work by the Construction Manager, a Subcontractor or anyone for whom either is responsible. 8.1.7.2 In correcting defective, damaged or non - conforming Work, but only is such Work is performed, supplied or damaged by a Subcontractor, or material supplier and not corrected by them, provided that such defective, damaged or non- conforming Work did not result from the fault or negligence of the Construction Manager, and only to the extent that the cost of correcting the defective, damaged or non - conforming Work is not recoverable by the Construction Manager from the Subcontractor or material supplier or others and the Construction Manager is not compensated therefore by insurance or otherwise. In no event shall the total cost of defective, damaged or non - conforming Work, together with all reimbursable costs, exceed the Estimated Cost of the Work, without written approval in advance from the Owner. 8.1.7.3 Costs as defined herein shall be actual costs paid by the Construction Manager, subject to Article 10 of the Agreement. All payments made by the Owner pursuant to this Article 8, whether those payments are actually made before or after the execution on the Contract, are included within the Estimated Cost of the Work specified in Article 7. Provided, however, that in no event shall the Owner be required to reimburse Construction Manager for any portion of the Cost of the Work incurred prior to the Commencement Date unless Construction Manager has received the Owner's written consent prior to incurring such cost. Village of Lemont 11 11 -5 -07 Police Facility 8.2 Construction Manager hereby agrees and acknowledges that there shall be no duplication of payments for any of the items comprising the Cost of the Work including the General Conditions Costs, notwithstanding any itemization or provision contained in the Contract documents to the contrary, including without limitations, this Article 8. ARTICLE 9 COSTS NOT TO BE REIMBURSED 9.1 The Cost of the Work shall not include: 9.1.1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Article 8. 9.1.2 Expenses of the Construction Manager's principal office and offices other than the site office except specifically provided in Article 8. 9.1.3 Overhead and general expenses, except as may be expressly included in Article 8, including but not limited to the costs of Construction Manager's taxes, licenses or other levies in connection with the general conduct of its business, including Federal and State income taxes. 9.1.4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. ARTICLE 10 DISCOUNTS, REBATES AND REFUNDS 10.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) the Construction Manager included them in an Application for Payment and received payment therefore from the Owner, or (2) the Owner has deposited funds with the Construction Manager with which to make payments. Cash discounts for items or services not paid for by Owner shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be secured. ARTICLE 11 ACCOUNTING RECORDS 11.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract. ARTICLE 12 CHANGES IN THE PROJECT 12.1 Scope Change Orders. Any work not contained in the Contract Documents shall be a change and shall be performed by Construction Manager only pursuant to a written Change Order to this Agreement issued by Owner if such work increases or decreases the Contract Price. Such a Change Order may increase or decrease the Work within the general scope of this Agreement. If this Change Order causes an increase in the cost of the work Construction Manager shall be paid a lump sum acceptable to both parties. If the parties are unable to agree upon a lump sum for the additional work, Construction Manager shall be reimbursed for the cost of such work, as determined in accordance with Article 8. If the Change Order causes a decrease in the cost of the Work, the Contract Price shall be Village of Lemont 12 11 -5 -07 Police Facility decreased by the amount of Construction Manager's determination of the decrease of the cost in labor, materials and equipment no longer required, based upon the Schedule of Values furnished pursuant to Paragraph 2.1.3. All Change Orders to the Project Scope shall reflect the following: a) A change in the Work; b) The amount of the adjustment in the Contract Sum; if any c) The extent of the adjustment in the Contact Time, if any. Concealed Conditions. If concealed or unknown conditions that affect the performance of the Work and vary from those indicated by the Contract Documents are encountered, which conditions are not ordinarily found to exist or which differ materially from those generally recognized as inherent in work of the character provided for under this Agreement, notice by the observing party shall be given promptly to the other party and, if possible, before conditions are disturbed. The Contract Price and Schedule shall be equitably adjusted for such concealed or unknown conditions by Change Order upon claim made by Construction Manager. 12.2 If Owner requests a proposal for a change in the Work from the Construction Manager and subsequently elects not to proceed with the change. a Change Order shall be issued to reimburse Construction Manager for reasonable costs incurred for estimating services and services involved in the preparation of proposed revisions to the Contract Documents. 12.3 Work Change Directives 12.3.1 A Work Change Directive is a written order prepared and signed by Owner, directing a change in the Work prior to agreement on an adjustment in the Contract Price and /or the Contract Time(s). 12.3.2 Owner and Construction Manager shall negotiate in good faith an as expeditiously as possible the appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement. 12.4 Minor Changes in the Work 12.4.1 Minor Changes in the Work do not involve an adjustment in the Contract Price and /or Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Construction Manager may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however that Construction Manager shall promptly inform Owner, in writing, of any such changes and record such changes on the documents maintained by Construction Manager. 12.5 Contract Price Adjustments 12.5.1 The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following methods: a) Unit prices set forth in the Agreement or as subsequently agreed to between the parties; b) A mutually accepted, lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner; Village of Lemont 13 11 -5 -07 Police Facility c) Cost, fees and any other markups set forth in the Agreement; and d) If an increase or decrease cannot be agreed to as set forth in items .1 through .3 above and Owner issues a Work Change Directive, the cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting from the change including a reasonable overhead and profit, as may be set froth in the Agreement. If the net result of both additions and deletions to the Work is an increase in the Contract Price, overhead and profit shall be calculated on the basis of the net increase to the Contract Price. If the net result of both additions and deletions to the Work is a decrease in the Contract Price, there shall be no overhead or profit adjustment to the Contract Price. Construction Manager shall maintain a documented, itemized accounting evidencing the expenses and savings associated with such changes. 12.5.2 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the parties, but application of such unit prices shall cause substantial inequity to Owner or Construction Manager because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably adjusted. 12.5.3 If the owner and Construction Manager disagree upon whether Construction Manager is entitled to be paid for any services required by Owner, or if there are any other disagreements over the scope of Work or proposed change to the Work, Owner and Construction Manager shall resolve the disagreement pursuant to Article 15 hereof. As part of the negotiation process, Construction Manager shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner's interpretations. If the parties are unable to agree and Owner expects Construction Manager to perform the services in accordance with Owner's interpretations, Construction Manager shall proceed to perform the disputed services, conditioned upon Owner issuing written order to Construction Manager (i) directing Construction Manager to proceed and (ii) specifying Owner's interpretation of the services that are to be performed. If this occurs, Construction Manager shall be entitled to submit in its Applications for Payment an amount equal to fifty percent (50 %) of is reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts, with the express understanding that (i) such payment by Owner does not prejudice Owner's right to argue that it has no responsibility to pay for such services and (ii) receipt of such payment by Construction Manager does not prejudice Construction Manager's right to seek full payment of the disputed services if Owner's order is deemed to be a change to the Work. 12.6 Emergencies 12.6.1 In any emergency affecting the safety of persons and /or property, Construction Manager shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the Contract Price and /or Contract Time(s) on account of emergency work shall be determined as provided in this Article 12. ARTICLE 13 PAYMENTS TO THE CONSTRUCTION MANAGER 13.1 Progress Payments 13.1.1 On or before the 9th day of each month after work has commenced, Construction Manager shall submit to Owner's Representative an Application for Payment for the period ending on the Village of Lemont 14 11 -5 -07 Police Facility last day of the preceding month which shall indicate the total amount paid by Construction Manager for costs incurred under this Agreement, and the current amounts due therefore; and Construction Manager's Fee calculated thereon. Owner's Representative shall have the right of inspection and verification pursuant to the Application for Payment and shall have five (5) days within which to approve the Application. Representative shall forward each approved application to Owner for payment. Each Application for Payment shall be accompanied by a partial waiver of lien duly executed by Construction Manager and all subcontractors for all work, the cost of which has been paid by Owner to the date of the most recent payment received by Construction Manager. 13.1.2 Within fifteen (15) days after its receipt of such application for payment, Owner shall pay directly to Construction Manager as follows: 13.1.2.1 In full the currently due amounts shown on the Application for Payment as paid by Construction Manager for costs incurred. 13.1.2.2 One Hundred percent (100%) of currently due amounts shown on the application for Construction Manager's Fees. 13.1.2.3 Ninety percent (90%) of currently due amounts of subcontracts, less retention amounts shown on the invoice. 13.2 Interest. Payments due and unpaid by Owner to Construction Manager, whether progress payments or final payment, shall bear interest commencing five (5) days after payment is due at the rate of three percent (3 %). 13.3 Title Free of Liens. 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, shall pass to the Owner upon receipt of such payment by Construction Manager free and clear of all liens, claims, security interests or encumbrances hereinafter referred to as Liens. Construction Manager, at its own expense, shall indemnify, defend and save harmless Owner against Liens filed on the property of Owner by subcontractors, materialmen or suppliers of Construction Manager for amounts due them from Construction Manager for Work, the cost of which has been paid by Owner to Construction Manager. 13.4 Final Payment. For purposes of final payment, the procedure under this Agreement shall be as follows: 13.4.1 The Construction Manager shall give written notice to Owner upon substantial completion of the Project, or a designated portion thereof. If Owner has not, in fact, occupied or utilized the Project, or the Designated portion thereof, the Owner's Representative, within five (5) days of receipt of such notice, shall determine on the basis of an inspection that the work is substantially complete. Construction Manager shall then prepare a Certificate of Substantial Completion for approval by the Owner's Representative which shall establish the date of substantial completion, shall state the responsibilities of Owner and Construction Manager regarding maintenance, heat, utilities, and risk of casualty, and shall list the items of Work (punch list) to be corrected or completed. 13.4.2 When the parties have mutually agreed upon the Certificate of Substantial Completion, Construction Manager shall submit to the Owner's Representative for approval of an Application for Payment of the unpaid balance of the Contract Price for the Project, less an amount equal to one - hundred percent (100%) of the estimated cost of completing all remaining unfinished items of work shown on the punch list. Within ten (10) days after receipt of the approved Application for Payment, Owner shall make payment to Construction Manager of the amount approved by the Owner's Representative. Failure of Owner to pay the amount Village of Lemont 15 11 -5 -07 Police Facility specified by Owner's Representative shall constitute a breach of this Agreement and Construction Manager shall have no further obligations or responsibility to Owner under this Agreement. 13.4.3 Construction Manager shall, as soon as possible, correct or complete the items of work noted on the punch list without additional expense to Owner. Owner's Representative shall inspect the corrected or completed items of work within five (5) days after notice of correction of completion of each such item of work and if acceptable, shall issue a written notice of acceptance of such items of work to Construction Manager. Owner shall pay monthly, from the amount retained, for the items of work corrected or completed. 13.4.4 Following full completion of the Work and final inspection and acceptance of the Work by the Owner's Representative, Construction Manager shall submit a final Application for Payment for the entire unpaid balance of the contract price, as noted in the final application. Upon final payment, Construction Manager shall issue a duly executed final waiver of lien. 13.4.5 The making of final payment shall not constitute a waiver of any claims by Owner. ARTICLE 14 INDEMNITY AND INSURANCE 14.1 Indemnity. The Construction Manager shall indemnify, defend and hold the Owner harmless from all claims and suits for damages arising from personal injuries, including death to persons or damage to property including claims of direct, indirect and consequential damages and from all judgments recovered therefore, and from all expenses for defending such claim or suit, including court costs and reasonable attorney's fees, which result from the errors, omissions or negligent acts of Construction Manager. Construction Manager shall have no duty to indemnify Owner hereunder against claims arising as a result of Owner's sole or contributing negligence. 14.2 Construction Manager's Insurance. The Construction Manager shall purchase and maintain the following insurance to cover Construction Manager's operations under this Agreement whether such operations be by itself or 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: 14.2.1 Workers' Compensation insurance in full compliance with workers' compensation laws of the State of Illinois, together with employer's liability coverage with minimum limits of liability in the amount of: $500,000 each accident Bodily Injury by Accident $500,000 policy limit Bodily Injury by Disease $500,000 each employee Bodily Injury by Disease. 14.2.2 Comprehensive automobile liability insurance covering all owned, hired and non -owned vehicles with the following minimum limits of liability: Combined single limit: $1,000,000 bodily injury and property damage each accident. 14.2.3 Comprehensive general liability insurance including Independent Contractor's coverage with following minimum limits of liability: Combined single limit: $1,000,000 each occurrence $1,000,000 personal & advertising injury $1,000,000 general aggregate Village of Lemont 16 11 -5 -07 Police Facility $2,000,000products /completed operations aggregate $2,000,000 aggregate 14.2.4 The Construction Manager shall carry an umbrella policy to apply excess of the general liability, automobile liability and employer's liability coverages listed above at the following limits of liability: $5,000,000 each occurrence; $5,000,000 aggregate. 14.2.5 The Construction Manager's commercial general liability policy shall also include blanket contractual liability coverage. 14.2.6 Owner shall purchase and maintain at its sole expense, until the Date of Substantial Completion and acceptance thereof, all -risks of direct physical loss builder's risk insurance upon the Work at the site to the full insurable value thereof (including all materials, supplies and equipment intended for specific installation in the Work while in transit, at temporary locations, or delivered to the site but not yet incorporated into the Work). This insurance shall include the interests of Construction Manager, Owner, Owner's Representative, subcontractors and sub - subcontractors in the Work, except for the equipment used by the Construction Manager, subcontractors and sub - subcontractors associated with their Work, and shall insure against the perils normally insured against in an all -risks direct physical loss builder's risk policy including the perils of flood, quake and terrorism, and shall be deemed the primary insurance as to covered risks. Such builder's risk insurance shall be written on a repair or replacement cost basis. The policy (ies) for such insurance shall be secured and maintained by Owner in the full amount of the Contract Price and adjusted for changes in the Contract price affected by the Change Order(s). 14.2.7 Any insured loss shall be adjusted with the Owner and made payable to the Owner as trustee for the insureds, as their interest may appear, subject to the requirements of any applicable mortgage clause and of Owner's construction lender. The Construction Manager, subcontractors and sub - subcontractors shall have the right to consult with the Owner in any loss adjustment, subject to the rights of any applicable lenders. Owner shall purchase an maintain, until the Date of Substantial Completion, all -risk builder's risk insurance upon the Work at the site to the full insurable value thereof (including all materials delivered to the site but not yet incorporated into the improvements). This insurance shall include the interests of Construction Manager, Owner, Owner's Representative, subcontractors and subcontractors in the Work, except for the equipment used by the Construction Manager, subcontractors and sub - subcontractors in the Work, except for the equipment used by the Construction Manager, subcontractors and sub - subcontractors associated with their Work, and shall insure against the perils normally insured against in an all -risk builder's risk policy, and shall be deemed the primary insurance as to covered risks. If Owner requests, in writing, that insurance for special hazards be included in the property insurance policy, Construction Manager shall, if possible, include such insurance and the cost thereof shall be charged to Owner by appropriate Change Order. 14.2.8 All insurance required of Construction Manager shall be with insurers having a Best Rating of at least A -Class VII or better. Certificates of insurance reasonably acceptable to Owner shall be filed with Owner prior to commencement of the Work. These certificates shall contain a provision that coverage afforded under the policies shall not be canceled until at least thirty (30) days prior written notice has been given to Owner. Village of Lemont 17 11 -5 -07 Police Facility ARTICLE 15 STOP WORK AND TERMINATION OF THE AGREEMENT 15.1 Termination by Owner for Cause. If the Construction Manager defaults or persistently fails or neglects to carry out the Work in accordance with the Contract Documents or fails to perform the provisions of this Agreement, the Owner may give written notice that the Owner intends to terminate this Agreement. If the Construction Manager fails to correct the defaults, failure or neglect within seven days after being given notice, the Owner may then give a second written notice' and, after an additional seven days, the Owner may without prejudice to any other remedy make good such deficiencies and may deduct the cost thereof from the payment due the Construction Manager or, at the Owner's option, may terminate the employment of the Construction Manager and take possession of the site and of all materials, equipment, tools and construction equipment and machinery thereon owned by the Construction Manager and finish the Work by whatever method the Owner may deem expedient. If the unpaid balance of the Contract Price exceeds the expense of finishing the Work, the excess shall be paid to the Construction Manager, but if the expense exceeds the unpaid balance, the Construction Manager shall pay the difference to the Owner. 15.2 Termination by Owner Without Cause. In addition to termination under Article 15.1, Owner may terminate this Agreement without cause upon ten days' written notice to Construction Manager. Upon such termination, Owner shall reimburse the Construction Manager for any unpaid portions of the Contract Price due him under Article 7 for the Work to date of termination. In addition, 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. In case of such termination of this Agreement, the Owner shall further assume and become liable for obligations, commitments and unsettled claims that the Construction Manager has previously undertaken or incurred in good faith in connection with said Work, actual cancellation penalties for outstanding contracts and undelivered materials or equipment on order, and any demobilization costs, plus 10% of such costs to cover Construction Manager's fee. The Construction Manager shall, as a condition of receiving the payments referred to in this Article, execute and deliver all such papers and take all such steps, including the legal assignment of his contractual rights, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such obligations or commitments. 15.3 Construction Manager's Right to Stop Work. Construction Manager may, in addition to any other rights afforded under the Contract Documents or at law, stop work for the following reasons: .1 Owners failure to provide financial assurances as required under section 3.7 hereof: or .2 Owner's failure to pay amounts properly due under Construction Manager's Application for payment. 15.4 Should any of the events set forth in Section 15.3 above occur, Construction Manager has the right to provide Owner with written notice that Construction Manager shall stop work unless said event is cured within seven (7) days from Owner's receipt of Construction Manager's notice. If Owner does not cure the problem within such seven (7) day period, Construction Manager may stop work. In such case, Construction Manager shall be entitled to make a claim for adjustment to the Contract Price and Contract Time(s) to the extent it has been adversely impacted by such stoppage. 15.5 The Construction Manager may terminate the Contract if the Work is stopped for a period of 30 days through no act or fault of the Construction Manager or a Subcontractor, Sub - subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Construction Manager for any of the following reasons: Village of Lemont 18 11 -5-07 Police Facility .1 issuance of an order of a court or other public authority having jurisdiction; .2 an act of government, such as a declaration of national emergency, making material unavailable; .3 if repeated suspensions, delays or interruptions by the Owner constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365 -day period, whichever is less: or .4 The owner has failed to furnish to the Construction Manager promptly, upon the Construction Manager's request, reasonable evidence and justification of such suspensions, delays or interruptions. 15.6 If one of the above reasons exists, the Construction Manager may upon seven additional days' written notice to the Owner, terminate the contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages. 15.7 If the Work is stopped for a period of 60 days through no act or fault of the Construction Manager or a Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Construction Manager because the Owner has persistently failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to the progress of the Work, the Construction Manager may upon seven additional days' written notice to the Owner, terminate the Contract and recover from the Owner as provided in Subparagraph 15.1.2. ARTICLE 16 DISPUTE RESOLUTION 16.1 If either Construction Manager or Owner believes that it is entitled to relief against the other for any event arising out of or related to the Work or Project, such party shall provide written notice to the other party of the basis for its claim for relief. Such notice shall, if possible, be made prior to incurring any cost or expense and in accordance with any specific notice requirements contained in applicable sections of this Contract. In the absence of any specific notice requirement, written notice shall be given within a reasonable time, not to exceed twenty-one (21) days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition giving rise to the request, whichever is later. Such notice shall include sufficient information to advise the other party of the circumstances giving rise to the claim for relief, the specific contractual adjustment or relief requested and the basis of such request. 16.2 Dispute Avoidance and Resolution. The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Construction Manager and Owner each commit to resolving such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work. 16.3 Construction Manager and Owner shall first attempt to resolve disputes or disagreements at the field level through discussions between Construction Manager's Representative and Owner's Representative. 16.4 If a dispute or disagreement cannot be resolved through Construction Manager's Representative and Owner's Representative, Construction Manager's Senior Representative and Owner Senior Representative, upon the request of either party, shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute or disagreement. Prior to any meetings between the Senior Representatives, the parties shall exchange relevant information that shall assist the parties in resolving their dispute or disagreement. Village of Lemont 19 11 -5 -07 Police Facility 16.5 If after meeting the Senior Representatives determine that the dispute or disagreement cannot be resolved on terms satisfactory to both parties, the parties shall submit the dispute or disagreement to non- binding mediation. The mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties cannot so agree, a mediator designated by the American Arbitration Association ( "AAA ") pursuant to its Construction Industry Mediation Rules. The mediation shall be governed by and conducted pursuant to a mediation agreement negotiated by the parties or, if the parties cannot so agree, by procedures established by the mediator. ARTICLE 17 PROTECTION OF PERSONS AND PROPERTY 17.1 Safety Precautions and Programs. The Construction Manager shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. 17.2 Safety of Persons and Property. The Construction Manager shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to: 17.2.1 Employees on the Work and other persons who may be affected thereby; 17.2.2 The Work and material and equipment to be incorporated therein, whether in storage on or off the site, under care, custody and control of the Construction Manager or the Construction Manager's subcontractors or sub - subcontractors. 17.3 The Construction Manager shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on the safety of persons or property or their protection from damage, injury or loss. 17.4 The Construction Manager shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and uses of adjacent sites and utilities. 17.5 When use or storage of hazard materials or equipment or unusual methods are necessary for execution of the Work, the Construction Manager shall exercise the reasonable utmost care and carry on such activities under supervision of properly qualified personnel. 17.6 The Construction Manager shall promptly remedy (or use its best efforts to remedy) damage and loss to property caused in whole or in part by the Construction Manager, a subcontractor, a sub - subcontractor or anyone directly or indirectly employed by any them, or by anyone for whose acts they may be liable and for which Construction Manager is responsible, except damage or loss attributable to acts or omissions of the Owner or anyone directly or indirectly employed by it, or by anyone for whose acts they Owner may be liable, and not attributable to the fault or negligence of the Construction Manager. ARTICLE 18 MISCELLANEOUS 18.1 Successors and Assigns. This Agreement shall be binding on the successors, assigns, and legal representatives of the Owner or Construction Manager. Neither party shall assign, sublet or transfer an interest in the Agreement without the written consent of the other. Village of Lemont 20 11 -5 -07 Police Facility 18.2 Ownership of Documents. Provide documents to the Owner. The drawings, Specifications and other documents prepared by the Construction Manager for this project are instruments of the Construction Manager's service for use solely with respect to this Project and, unless otherwise provided, the Construction Manager shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyright. The Owner shall be permitted to retain copies, including reproducible copies, of the Construction Manager's Drawings, Specifications and other documents for information and reference in connection with the Owner's use and occupancy of the Project. The Construction Manager's Drawings, Specifications or other documents shall not be used by the Owner or others on other project, for additions to this Project or for completion of this Project by others, unless the Construction Manager is adjudged to be in default under this Agreement, except by agreement in writing and with appropriate compensation to the Construction Manager. 18.2.1 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the project is not to be construed as publication in derogation of the Construction Manager's reserved rights. 18.3 Governing Law. This Agreement shall be governed by the law of the State of Illinois. 18.4 Representations and Warranties. Construction Manager represents and warrants the following to the Owner which representations and warranties shall survive the execution and delivery of this Agreement, any termination of this Agreement and the final completion of the Work: (i) that it is able to furnish the labor required to manage the Work and perform its obligations hereunder and has sufficient experience and competence to do so; (ii) that it is authorized to do business in the State of Illinois and properly licensed by all necessary governmental and public and quasi - public authorities having jurisdiction over him and over the Work and the Project; (iii) that its execution of this Agreement and its performance thereof is within its duly authorized powers; 18.5 Discipline of Employees. Construction Manager 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. 18.6 Claims for Damages. Should either party to this Contract suffer injury or damage to persons or property because of any act or omission of the other party or of any of its employees, agents or others for whose acts it is legally liable, claim shall be made, in writing, to such other party within a reasonable time after the first observance of such injury or damage. 18.7 Written Notice. All notices, demands and communications required or which either party desires to give or make hereunder shall be in writing signed by or on behalf of the party giving or making the same, and may be served personally, by United States registered or certified mail, return receipt requested, or by a national courier service guaranteeing overnight delivery: Village of Lemont 21 11 -5 -07 Police Facility To Construction Manager: Wight Construction, Inc. Attn: Ken Osmun 2500 N. Frontage Road Darien, IL 60561 II. To Owner: Village of Lemont Attn: Village Administrator 418 Main Street Lemont, IL 60439 Mailed notices shall be deemed to have been given on the third business day after the date of mailing or upon receipt by either party if personally delivered and a written receipt signed therefore, or one (1) business day following deposit for overnight delivery with a national courier service guaranteeing overnight delivery. Any party hereto may change its address for the service as aforesaid by giving written notice to the other of such change of address in accordance with the provision of this subparagraph. 18.8 Access to Work. Owner and its representative shall at all times have access to the Work whenever it is in preparation or progress; provided, however, that such access shall not interfere with the prosecution of the Work by Construction Manager, or its subcontractors or sub - subcontractors or jeopardize their safety. Construction Manager shall permit and facilitate such access to the Work by Owner, its agents, and public authorities concemed with such work. IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed and delivered the day and the date first above written. OWNER: By: Its: Date: CONSTRUCTION MANAJ ER: Wight Construction, Inc. By: Its: Date: President - Wight Construction, Inc. lo lo- Village of Lemont 22 11 -5 -07 Police Facility Category Wight Hard Construction 7,183,803.00 Fixed Furniture Included Contingency Construction Management Fee (3.5 %) 258,976.00 Design Fees (all Wight) Construction Administration (CA) CA - Credit deduction 126,000.00 60,000.00 Village of Lemont 23 11 -5-07 Police Facility EXHIBIT "A" Project Scope Document Based on Plans and Specifications Dated October 8, 2007. Village of Lemont 24 11 -5 -07 Police Facility