R-1716 - 03/27/2018 - POLICE DEPT. - Resolutions Supporting DocumentsBOT AGENDA Page 1
BOARD OF TRUSTEES MEETING
SAMUEL E. DEAN BOARD ROOM
BUTLER GOVERNMENT CENTER
1200 OAK BROOK ROAD
OAK BROOK, ILLINOIS
630-368-5000
AGENDA ITEM
Regular Board of Trustees Meeting
of
March 27, 2018
SUBJECT: Award of Contract – Construction Management Contract for Designer-Led
Design-Build for the Police Department Water Main Relocation
FROM: Doug Patchin, Public Works Director
BUDGET SOURCE/BUDGET IMPACT: $26,783 (451-77000) Water S ystem
Improvements, Other Services.
RECOMMENDED MOTION: I move that the Village Board award a contract to Burke,
LLC, Rosemont, Illinois, in the amount of $26,783, subject to final attorney review, for the
Construction Management Designer-Led Design-Build of the Police Department Water
Main Relocation Project, and approve Resolution R-1716.
Background/History:
During the pre-construction meeting for the Police Department Build Out it was
discussed that the water main relocation would be one of the first steps before
excavation could begin. The water main would need to be relocated because its location
was close to where sheet piles were going to be driven into the ground to maintain the
stability of the hill adjacent to the excavation.
I requested that village staff do a couple of exploratory excavations to verify the water
mains location. It was discovered that the existing water main was in the way of the
building walls and foundation. Approximately ninety (90) feet of water main and two (2)
inline valves would be required for the relocation, this project would also require a permit
from the Illinois Environmental Protection Agency. At that point I requested that the
villages consulting engineer from Christopher Burke to review what would be required to
apply for the IEPA permit, and to design a relocated water main that could be tested and
chlorinated following IEPA guidelines.
Agenda Item 9.A.3
BOT AGENDA Page 2
Christopher Burke also obtained proposals for the water main relocation. They contacted
three (3) excavation contractors and requested proposals to relocate, pressure test and
chlorinate the water main. The proposals ranged from $19,900 to $31,375.
Base Professional Fees
Design and IEPA Permitting $3,500
Construction Management $2,985
Insurance $ 398
$6,883
Water Main Relocation
Water Main Construction $19,990
Please be advised that there will be a change order for the Police Department Build Out
Project offsetting this cost by approximately -$24,000, this was the original price that was
included in the project cost, for the water main relocation
Recommendation:
That the Village Board award a contract to Burke, LLC, Rosemont, Illinois, in the amount
of $26,783, subject to final attorney review, for the Construction Management Designer-
Led Design-Build of the Police Department Water Main Relocation Project, and approve
Resolution R-1716.
RESOLUTION 2018-CONTRCT-PD-WTR-MAIN-RLCT-R-1716
A RESOLUTION APPROVING AND AUTHORIZING A CONTRACT BY AND BETWEEN THE VILLAGE
OF OAK BROOK AND BURKE, LLC
FOR CONSTRUCTION MANAGEMENT FOR DESIGNER-LED DESIGN-BUILD SERVICES FOR THE
POLICE DEPARTMENT WATER MAIN RELOCATION PROJECT
WHEREAS, the Village desires to retain a firm to provide construction management services
(“Services”) for the Police Department Water Main Relocation Project (“Project”); and
W HEREAS, Burke, LLC (“Burke”) sent out proposal requests to three vendors for the Project; and
W HEREAS, 3 proposals were received with Burke checking references for the low bidder; and
W HEREAS, staff is satisfied that Burke will successfully perform the Services for the Project; and
W HEREAS, the Village and Burke desire to enter into and execute a Contract for Burke to provide
the Services to the Village, which contract is attached hereto as Exhibit A ("Contract”); and
W HEREAS, the President and Board of Trustees have determined that it is in the best interest of
the Village to enter into the Contract;
NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF
THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows:
Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of,
this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook.
Section 2: Approval of the Contract. The President and Board of Trustees hereby approve
the Contract by and between the Village and Burke in substantially the form as attached as Exhibit A and
in a final form approved by the Village Attorney.
Section 3: Authorization and Execution of the Contract. The Village Manager and Village
Clerk shall be, and hereby are, authorized to execute the approved final Contract on behalf of the Village.
Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and
approval in the manner provided by law.
[SIGNATURE PAGE FOLLOWS]
Resolution 2017-CNTRCT-PD-WTR-MAIN-RLCT-R-1716
Construction Management Services Police Department
Water Main Relocation Project
2 of 3
APPROVED THIS 27th day of March 2018
Gopal G. Lalmalani
Village President
PASSED THIS 27th day of March 2018
Ayes:
Nays:
Absent:
ATTEST:
Charlotte K. Pruss
Village Clerk
Resolution 2017-CNTRCT-PD-WTR-MAIN-RLCT-R-1716
Construction Management Services Police Department
Water Main Relocation Project
3 of 3
EXHIBIT A
CONTRACT
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Type of Contract:
Awarded Contract Price:B卿 彎選壇
Under$20′000 .
$20′000‐$500′000
$500′001‐$1′000′000
0Ver$1′000′000
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REV=EW OF CONTRACTS
Three (3) Originals signed by other party
Original provided to staff member for other party
Original provided to Official Files
Date/1nitials
Date/1nitials
Date/1nitials
Village of Oak Brook I Approved by Board of Trustees - Date/lnitials:.
DeΨ Ъ Program/AccounYNumbef : J
Name:{こ 1脂 Date: 3l )t r 2a r {
Name:Date:
Name:〃^し 、
Name:Date:
STANDARD FORM OF AT‐RISK CONSTRUCT:ON MANAGEMENT
CONTRACT FOR DES:GNER‐LED DESIGN‐BUILD PROJECT
Village of Oak Brook, lllinoisOWNER:
1200 0ak Brook Road
Oak BЮ ok,IL 60523
CONSTRUCT10N MANAGER: Burke,LLC
9575 West Higgins Road
Suite 600
Rosemont, lL 6001 8-4920
Police Department Water Main RelocationPRO」ECT:
GUARANTEED MAXIMUM
PRICE:
SUBSTANTIAL
COMPLE丁 10N DATE:
The project consists of relocation of approximately 90 linear feet of 8-inch ductile iron water
main, and installation of an 8-inch valve in vault. All construction spoils will be left on-site to
be hauled off by others and all restoration will be done by others. Work will be coordinated
with Village staff and staged to accommodate the work being done for the police station.
Work also includes all design work necessary to obtain an IEPA public water supply
construction permit and construction management services. Because of the time sensitivity
of the project, we proposed to complete the construction in three (3) phases as follows:
Phase l- Cut and cap existing 8-inch water main, extend 15 LF of 8-inch DIP water main
with an 8-inch bend, and install one ('1) S" valve in a 4' diameter vault with a restraint block.
Phase ll - lnstall 75 LF of 8-inch DIP water main, two (2) 8-inch bends, and one (1) 8-inch
solid sleeve. Work will also include pressure testing and chlorination of the new water main.
Phase lll- Remove 8-inch cap and make final connection to existing watermain.
CONTRACT DATE:
$26,783.00
Phase l-3/20/2018
Phase ∥ & ∥l ―With:n 15 working days
proceed from Vi∥age.
of notice to
W:\Proposals\2018\Oak Brcok - Polie Station Watd Main Repla@m.nt\Commctioo Mamgment ContEct REV 03l920l8.doc
ARTICLE 1 . RELATIONSHIP OF THE PARTIES
1.1 Relationshio. 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 the
design, construction, management and administration services as set forth in greater detail below.
1.2 Enqineer. The Engineerforthe Project is Christopher B. Burke Engineering, Ltd., a separate company
and legal entity closely affiliated with the Construction Manager. The Owner, Engineer and
Construction Manager had previously jointly entered into a Price and Schedule Guarantee for the
Project. When fully executed, this Contract shall supersede the Owne/s and Construction Manager's
obligations in the Price and Schedule Guarantee, which merges into this Contract and is no longer
separately enforceable.
ARTICLE 2. DEFINITIONS
2.1 Contract Documents. The Contract Documents consist of:
.1 Change Orders and written amendments to this Contract signed by both the Owner and
Construction Manager;
.2 This Contract;
.3 Surveys, geo-technical information and other information provided by the Owner pursuant to this
Contract;
.4 The concept plans and rendering, including any Addenda thereto.
ln 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 Dav. 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 Owner. The Owner for the purposes of this Contract is the Village of Oak Brook, lllinois, an lllinois
municipal corporation.
2.5 Subcontractor. A Subcontractor is a person or entity who has an agreement with the Construction
tr,tanager to perform any portion of the Work, and includes vendors or material suppliers but does not
includL the Engineer, any separate contractor employed by the Owner or any separate contractor's
su bco ntractor.
2.5 Substantial Completion. Substantial Completion of the Work, or of a designated portion of the Work,
occrrrs 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, or the designated portion, for
the use for which it is intended.
26
27
Subsubcontractor. A Subsubcontractor is a person or entity who has an agreement with a
Subcontractor to perform any portion of the Subcontractor's work.
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, prior to execution of this Contract in reliance on the Price/Schedule Guarantee.
3.2 General Reouirements. 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 govem performance of the Work.
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 Meetinos. 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 Reoorts. The Construction Manager shall provide monthly written reports to the Owner on the progress
of the Work which shall include the current status of the Work in relation to the construction schedule as
well as adjustments to the construction schedule necessary to meet the Substantial Completion date.
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 crntrol 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.
3.7 Safetv. 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 Cleanuo. 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.
3.9 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 Construction Manager 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 Matedal 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. lf 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 lntellectual Prooertv. The Construction Manager shall pay all royalties and license fees which may be
due on the inclusion of any patented or copyrighted materials, 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 Comoletion. 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.4
3.13 lndemnification. 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. Notwithstanding any of the
foregoing, nothing contained in this paragraph shall require the Contractor to indemnify the Owner or
the Engineer, their officials, agents and employees for their own negligent acts or omissions.
3.14 Overtime Work. Except in connection with the safety or protection of persons, or the work, or
property at the site or adjacent thereto, all work at the site shall be performed during regular working
hours; and the Construction Manger will not permit overtime work or the performance of work on
Saturday, Sunday or any legal holiday without the Owner's written consent given after prior written
notice. Regular working hours shall be a consecutive eight-hour period between the hours of seven
o'clock (7:00) A.M. and five o'clock (5:00) P.M., Monday through Friday. No loading, unloading,
opening, closing or other handling of crates, containers, building materials or the performance of
construction work shall be performed before the hour of seven o'clock (7:00) A.M. and after the hour of
nine o'clock (9:00) P.M.
3.15 Selection of Labor. The Construction Manager shall comply with all lllinois statues pertaining to the
selection of labor.
3.16 Emolovment of lllinois Workers Durino Periods of Excessive Unemplovment. Whenever there is a
period of excessive unemployment in lllinois, which is defined herein as any month immediately
following two consecutive calendar months during which the level of unemployment in the State of
lllinois has exceeded five percent as measured by the United States Bureau of Labor Statistics in its
monthly publication of employment and unemployment figures, the Construction Manager shall employ
only lllinois laborers. "lllinois laborer" means any person who has resided in lllinois for at least 30 days
and intends to become or remain an lllinois resident.
Other laborers may be used when lllinois laborers as defined herein are not available, or are incapable
of performing the particular type of work involved, if so certified by the Construction Manager and
approved by the Owner. The Construction Manager may place no more than three of his regularly
employed non-resident executive and technical experts, who do not qualify as lllinois laborers, to do
work encompassed by this Contract during a period of excessive unemployment.
This provision applies to all labor, whether skilled, semi-skilled or unskilled, whether manual or non-
manual.
3.17 Eoual Emolovment Oooortunitv. During the performance of this Contract, the Construction
Manager agrees as follows:
.1 That it will not discriminate against any employee or applicant for employment because of race,
color, religion, sex, nataonal origin, ancestry, age, marital status, physical or mental handicap or
unfavorable discharge from military service, and further that it will examine all job classifications
to determine if minority persons or women are underutilized and will take appropriate affirmative
action to rectify any such underutilization.
.2 That, if it hires additional employees in order to perform this Contract or any portion hereof, it
will determine the availability of minorities and women in the area(s) from which it may
34reasonably recruit and it will hire for each job classification for which employees are hired in
such a way that minorities and women are not underutilized.
That, in all solicitations or advertisements for employees placed by it or on its behalf, it will state
that all applicants will be afforded equal opportunity without discrimination because of race,
color, religion, sex, national origin, ancestry, age, martial status, physical or mental handicap or
unfavorable discharge from military service.
That it will send to each labor organization or representative of workers with which it has or is
bound by collective bargaining or other agreement or understanding, a notice advising such
labor organization or representative of the Construction Manage/s obligations under the lllinois
Human Rights Act and the Owner's Rules and Regulations. lf any such labor organization or
representative fails or refuses to cooperate with the Construction Manager in its efforts to
comply with such Act and Rules and Regulations, the Construction Manager will promptly notify
the lllinois Department of Human Rights and the Owner and will recruit employees from other
sources when necessary to fulfill its obligations thereunder.
That it will submit reports as required by the Owner of Human Rights Rules and Regulations,
furnish all relevant information as may from time to time be requested by the Owner or the
contracting agency, and in all respects comply with the lllinois Human Rights Act and the
Owne/s Rules and Regulations.
That it will permit access to all relevant books, records, accounts and work sites by personnel of
the contracting agency lllinois Department of Human Rights for purposes of investigation to
ascertain compliance with the lllinois Human Rights Act and the Department's Rules and
Regulations.
That it will include verbatim or by reference the provisions of this clause in every subcontract so
that such provisions will be binding upon every such subcontractor. ln the same manner as with
other provisions of this Contract, the Construction Manager will be liable for compliance with
applicable provisions of this clause by all its subcontractors; and further it will promptly notify the
Owner and the lllinois Department of Human Rights in the event any subcontractor fails or
refuses to comply therewith. ln addition, the Construction Manager will not utilize any
subcontractor declared by the Owner to have failed to comply with this Equal Employment
Opportunity provision.
3.18 Sexual Harassment Policv. The Construction Manager shall have in place and shall
enforce a written sexual harassment policy in compliance with 775 ILCS 5/2-105(AX4).
3.'19 Veterans Preference Act. The Construction Manager shall comply with all laws relating
to the employment preference to veterans in accordance with the Veterans Preference
Act (330 ILCS 55/0.01 et seg.).
3.20 Waqes of Emplovees on Public Works. This Contract is subject to the Prevailing Wage
Act (820 ILCS 130/0.01 et seq.), as amended, except that where a prevailing wage
violates a Federal law, order, or ruling, the rate conforming to the Federal law, order, or
ruling shall govern.
Not less than the prevailing rate of wages as found by the Owner or the lllinois
Department of Labor or determined by a court on review shall be paid to all laborers,766
workers and mechanics performing work under this contract. These prevailing rates of
wages are included in thas Contract.
The Construction Manager and each subcontractor shall keep an accurate record
showing the names and occupations of all laborers, workers and mechanics employed
by them on this contract, and also showing the actual hourly wages paid to each of such
persons.
The submission by the Construction Manager and each subcontractor of payrolls, or
copies thereof, is not required. However, the Construction Manager and each
subcontractor shall preserve their weekly payroll records for a period of three years from
the date of completion of this Contract.
3.21 Confidentialitv of lnformation.Any documents, data, records, or other information relating
to the project and all information secured by the Construction Manager from the Owner
in connection with the performance of services, unless in the public domain, shall be
kept confidential by the Construction Manager and shall not be made available to third
parties without written consent of the Owner, unless so required by court order.
3.22 Steel Procurement. The steel products, as defined in section 3 of the Steel Products
Procurement Act (30 ILCS 565/3) used or supplied in the performance of this Contract or
any subcontract shall be manufactured or produced in the United States unless the
Owner certifies in writing that (a) the specified products are not manufactured or
produced in the United States in sufficient quantities to meet the Owner's requirements
or cannot be manufactured or produced in the United States within the necessary time in
sufficient quantities to meet the Owner's requirements; or (b) obtaining the specified
products, manufactured or produced in the United States would increase the cost of the
Contract by more than 10%, or the application of the Steel Products Procurement Act
(30 ILCS 565/1 et seg.) is not in the public interest.
3.23 Certifications.
.1 lllinois Taxes. The Construction Manager shall certify that its members holding
more than five percent (5%) of the outstanding membership interest of the limited
liability company, its officers and managers are, not delinquent in the payment of
taxes to the lllinois Department of Revenue in accordance with 65 ILCS 5/11-
42.1-1.
.2 Bid Riooinq. The Construction Manager shall certify that its members holding
more than five percent (5%) of the outstanding membership interest of the limited
liability company, its officers and managers have not been barred from
contracting with a unit of state or local government as a result of a violation of
Section 33E-3 or 33E-4 of the Criminal Code of 1961 .
.3 Druq-free Workolace. The Construction Manager shall certify that it will provide a
drug-free workplace by:
.1 Publishing a statement:
.1 Notifying employees that the unlawful manufacture, distribution,
dispensation, possession, or use of a controlled substance,
including cannabis, is prohibited in the Construction Manageds
workplace;
.2 Specifying the actions that will be taken against employees for
violations of such prohibition;
.3 Notifying the employee that, as a condition of employment on
such contract, the employee will:
.1 abide by the terms of the statement; and
.2 notify the employer of any criminal drug statute conviction
for a violation occurring in the workplace no later than five
(5) days after such conviction;
.2 Establishing a drug-free awareness program to inform employees about:
.1 the dangers of drug abuse in the workplace;
.2 lhe Construction Manager's policy of maintaining a drug-free
workplace;
.3 any available drug counseling, rehabilitation, and employee
assistance program; and
.4 the penalties that may be imposed upon employees for drug
violations;
.3 Making it a requirement to give a copy of the statement required by
subparagraph 3.23.3.1 to each employee engaged in the performance of
the Contract and to post the statement in a prominent place in the
workplace;
.4 Notifying the Owner within ten (10) days after receiving notice under
subparagraph 3.23.3.1.3.2 from an employee or otherwise receiving
actual notice of such conviction;
.5 lmposing a sanction on or requiring the satisfactory participation in a drug
abuse assistance or rehabilitation program by any employee who is so
convicted, as required by 30 ILCS 580/5;
.6 Assisting employees in selecting a course of action in the event drug
counseling treatment and rehabilitation is required and indicating that a
trained referral team is in place;
.7 Making a good faith effort to continue to maintain a drug-free workplace
through implementation of this section.
Educational Loan. The Construction Manager shall certify that its members
holding more than five percent (5%) of the outstanding membership interest of
the limited liability company, its officers and managers are, not in default, as
defined in 5ILCS 385/2, on an educational loan, as defined in 5 ILCS 385/1.
Human Riohts Number. The Construction Manger shall certify that at the time
the Construction Manager was awarded this Contract, the Construction Manager
had an lllinois Department of Human Rights pre-qualification number or had a
properly completed application for same on file wath the lllinois Department of
Human Rights, as provided for in 44 lllinois Administrative Code 750.210.
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.
This Contract is subject to the Prevailing Wage Act (820 ILCS 130/0.0"1 et seq.), as
amended, except that where a prevailing wage violates a Federal law, order, or ruling,
the rate conforming to the Federal law, order, or ruling shall govern.
4.2 Selection. The Construction Manager shall subcontract with Subcontractors and with
suppliers of materials or equipment fabricated to a special design for the Work and, shall
manage the delivery of the work to the Owner. The Owner may designate specific
persons or entities from whom the Construction Manager shall subcontract. However,
the Owner may not prohibit the Construction Manager from subcontracting with other
qualified bidders.
.1 lf the Construction Manager recommends to the Owner the acceptance of a
particular subcontractor who is qualified to perform that portion of the Work and
has submitted a price which conforms to the requirements of the Contract
Documents without reservations or exceptions, and the Owner requires that a
different price be accepted, then a Change Order shall be issued adjusting the
Contract Time and the Guaranteed Maximum Price by the difference between
the price of the subcontract recommended by the Construction Manager and the
subcontract 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.
4.3 Assionment. 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.
4.4.1 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.459
Foreiqn Corpora∥on Foreign(nonJ∥nOis)corpOra∥ons shall procure from the∥∥nois
Secretary of State a certricate Of autho∥ty to transact business in i∥nois:n accordance
with 805 1LCS 5/13
ARTICLE 5. CONSTRUCTION MANAGER'S WARRANTIES
5.1 One-Year Warrantv. The Construction Manager wanants 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 Soecified Bv 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
wananted under this Contract.
5.3 Other Wananties. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
ARTICLE 6 - OWNER'S RESPONSIBILITIES
6.'l lnformation and Services. The Owner shall provide:
.1 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;
.2 lnspection and testing services during construction as required by the law or as
mutually agreed;
.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.
45
Notice of Defect. lf the Owner becomes aware of any error, omission or other
inadequacy in the Contract Documents or of the Construction Manage/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; however,
the Owner's failure to provide notice shall not relieve the Construction Manager of its
obligations under this Contract.
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.
Owne/s Reoresenlative. The Owner's Representative for this Project is Owner's Village
Manager, who 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, provided, however, that the Village Manager shall not have authority to
increase the Contract Price by more than $10,000.00 nor to extend the Contract Time.
Authority to increase the Contract Price by more than $10,000.00 or to extend the
Contract Time may only be exercised by written Change Order signed by the Owner's
Village President and authorized by a due and proper vote of the Owner's Board of
Trustees. lf 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 on or
before March 15, 2018. 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 Comoletion. 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.
7.3.1 Delavs. lf 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's 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, or unavoidable accidents or circumstances. ln 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.
7.3.2 lnclement Weather. The Contract Time shall not be extended due to normal inclement
weather. Unless the Construction Manager can substantiate to the satisfaction of the
Owner that there was greater than normal inclement weather considering the full term of
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the Contract Time and using the most recent ten-year average of accumulated record
mean values from climatological data complied by the United States Department of
Commerce National Oceanic and Atmospheric Administration for the locale of the project
and that such alleged greater than normal inclement weather actually delayed the Work
or portions thereof which had an adverse material effect on the Contract Time, the
Construction Manager shall not be entitled to an extension of the Contract Time. lf the
total accumulated number of calendar days lost due to inclement weather from the start
of work until substantial completion exceeds the total accumulated number to be
expected for the same time period from the aforesaid data and lhe Owner grants the
Construction Manager an extension of time, the Contract Time shall be extended by the
appropriate number of calendar days.
Resoonsibilitv for Comoletion. The Construction Manager, through its Subcontracts
shall furnish such employees, materials and equipment as may be necessary to ensure
the prosecution and completion of the Work in accordance with the construction
schedule. lf the Work is not being performed in accordance with the construction
schedule and its becomes apparent from the schedule that the Work will not be
completed with the Contract Time, the Construction Manager shall, as necessary to
improve the progress of the work, take some or all of the following actions, at no
additional cost to the Owner:
.'l lncrease the number of workers in such crafts as necessary to regain the lost
progress;
.2 lncrease the number of working hours per shift, shifts per working day, working
days per week, the amount of equipment or any combination of the foregoing to
regain the lost progress.
ln addition, the Owner may require the Construction Manager to prepare and submit a
recovery schedule demonstrating the Construction Manager's plan to regain the lost
progress and to ensure completion within the Contract Time. lf the Owner finds the
proposed recovery plan is not satisfactory, the Owner may require the Construction
Manager to undertake any of the actions set forth in this paragraph 7.5, without
additional cost to the Owner.
Failure to Prosecute the Work. The failure of the Construction Manager to
substantially comply with the requirements of paragraph 7.5 may be considered grounds
for a determination by the Owner, that the Construction Manager has failed to prosecute
the Work with such diligence to ensure completion of the Work within the Contract Time
and that pursuant to paragraph 11.2 lhal the Construction Manager has materially
breached this Contract.
ARTiCLE 8‐PAYMENT
8.1 Guaranteed Maximum Price. The Guaranteed Maximum Price is the sum of the Cost of
the Work plus the Construction Manager's Fee as identified in this Contract, subject to
adjustment in accordance with the provisions of this Contract.
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Comoensation. 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
defined in this Article plus the Construction Manager's Fee of fifteen (15%) of the Cost of
the Work.
Prooress Pavments. 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 fifteenth 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 based upon the Work completed and materials
stored on the site or at other locations approved by the Owner. Within thirty (30) days
after receipt of each monthly Application for Payment, the Owner shall approve or
disapprove the Application for Payment. When safety or quality assurance testing is
necessary before consideration of the Application for Payment, and such testing cannot
be completed within thirty (30) days after receipt of the Application for Payment,
approval or disapproval of the Application for Paymenl shall be made upon completion of
the testing or within sixty (60) days after receipt of the Application for Payment,
whichever occurs first. lf an Application for Payment is disapproved, the Owner shall
notify the Construction Manager in writing. lf an Application for Payment is approved,
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
within thirty (30) days after approval. 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 Documenls.
.1 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.
.2 Each Application for Payment shall be based upon the most recent Schedule of
Values submitted by the Conshuction 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 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
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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:
.1 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.
.3 Add the Construction Manager's Fee. The Construction Manager's Fee
shall be computed upon the Cost of the Work described in the two
preceding Clauses at the rate stated in paragraph 8.2 or, if the
Construction Manager's Fee is stated as a fixed sum in that paragraph,
shall be an amount which bears the same ralio to that fixed sum Fee as
the Cost of the Work in the two preceding Clauses bears to a reasonable
estimate of the probable Cost of the Work upon its complelion.
.4 Subtract the aggregate of previous payments made by the Owner.
.5 Except with the Owner's prior approval, payments to Subcontractors shall be
subject to retention of not less than five percent (5%). 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.
Prooress Pavment Documentation. The Construction Manager shall supply and each
Application for Payment shall be accompanied by the following, all in form and
substance satisfactory to the Owner:
(A) a duly executed and acknowledged sworn statement showing all Subcontractors
with whom the Construction Manager has entered into subcontracts, the amount
of each such subcontract, the amount requested for any Subcontractor in the
requested progress payment and the amount to be paid to the Construction
Manager from such progress payment, together with similar sworn statements
from all Subcontractors and, where appropriate, from sub-Subcontractors;
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(B) duly executed waivers of mechanics' and materialmen,s liens of the money due
or to become due herein, establishing payment to the Subcontractor or material
supplier of all such obligations to cover the full amount of the Application for
Payment from each and every Subcontractor and suppliers of material or labor to
release the Owner of any claim to a mechanic's lien, which they or any of them
may have under the mechanic's lien laws of lllinois. Any payments made by the
Owner without requiring strict compliance to the terms of this paragraph shall not
be construed as a waiver by the Owner of the right to insist upon strict
compliance with the terms of this approach as a condition of later payments. The
Construction Manager shall indemnify and save the Owner harmless from all
claims of Subcontractors, laborers, workmen, mechanics, material men and
furnishers of machinery and parts thereof, equipment, tools and all supplies
incurred in the furtherance of the performance of the Work;
(C) sworn statements or lien waivers supporting the Application for Payment
submitted late by the Construction Manager to the Owner will result in the
Application for Payment not being processed until the following month.
Late Pavments. Payments shall be made in accordance with the Local Government
Prompt Payment Act (50 ILCS 505/1 ef. seq.)
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.
Final Pavment. 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 otheMise satisfied. ln accepting final payment, the
Construction Manager waives all claims except those previously made in writing and
which remain unsettled. ln 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 warranlies
required by the Contract Documents.
.1 The amount of the final payment shall be calculated as follows:
.'l Take the sum of the Cost of the Work substantiated by the Construction
Manager's final accounting and the Construction Manager's Fee, but not
more than the Guaranteed Maximum Price.
.2 Subtract the aggregate of previous payments made by the Owner. lf 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 accountants will review and report in writing on the Construction
Manager's final accounting within 30 days afier delivery of the final accounting to
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the Owner by the Construction Manager. Based upon such Cost ofthe Work as
the Owner's accountants report to be substantiated by the Construction
Manager's final accounting, the Owner will, within seven (7) days after receipt of
the written report of the Owner's accountants, 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 lf, 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 conect nonconforming Wo*, 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. lf 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.
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. The Cost of the Work
shall be the sum of the Construction Manager's subcontracts identified in the Schedule
of Values. The Cost of the Work shall include the items set forth below.
.1 Labor costs.
.1 Wages of construction workers directly employed by the Construction
Manager to perform the construction of the Work at the site or, with the
Owner's agreement, at off-site locations.
.2 Wages or salaries of the Construction Manager's supervisory and
administrative personnel when engaged in performance of the Work.
.3 Wages and salaries of the Construction Manager's supervisory or
administrative personnel engaged, at factories, workshops or on the road,
in expediting the production or transportation of materials or equipment
required for the Work.
.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 pensions, provided that such costs are
based on wages and salaries included in the Cost of the Work.
.2 Subcontract costs. Payments made by the Construction Manager to
Subcontractors in accordance with the requirements ofthe subcontracts.
.3 Costs of materials and eouipment incoroorated in the completed construction.
.1 Costs, including transportation, of materials and equipment incorporated
or to be incorporated in the completed construction.
.2 Costs of materials described above in excess of those actually installed
but required to provide reasonable allowance for waste and for spoilage.
Unused excess materials, if any, shall be handed over to the Owner at
the completion of the Work or, at the Owner's option, shall be sold by the
Construction Manager, with the amounts realized, if any, from such sales
credited to the Owner as a deduction from the Cost of the Work.
.4 Costs of other materials and equipment. temporarv facilities and related items.
.1 Costs, including transportation, installation, maintenance, dismantling and
removal of materials, supplies, temporary facilities, machinery,
equipment, and hand tools not customarily owned by the construction
workers, which are provided by the Construction Manager at the site and
fully consumed in the performance of the Work, and cost less salvage
value on such items if not fully consumed, whether sold to others or
retained by the Construction Manager.
.2 Rental charges for temporary facilities, machinery, equipment, and hand
tools not customarily owned by the construction workers, which are
provided by the Construction Manager at the site, whether rented from
the Construction Manager or others, and costs of transportation,
installation, minor repairs and replacements, dismantling and removal
thereof.
.3 Costs of removal of debris from the site.
.4 Reproduction costs, costs of telegrams, facsimile transmissions and long-
distance telephone calls, postage and express delivery charges,
telephone service at the site and reasonable petty cash expenses of the
site office.
.5 That portion of the reasonable travel and subsistence expenses of the
Construction Manager's personnel incurred while traveling in discharge of
duties connected with the Work.
5 Wedl@eus-seslc.
.'l That portion directly attributable to this Contract of premiums for
insurance and bonds.
.2 Sales, use or similar taxes imposed by a governmental authority which
are related to the Work and for which the Construction Manager is liable.
.3 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the Construction Manager has paid or
is required by the Contract Documents to pay.
t7
Fees of testing laboratories for tests required by the Contract Documents
or advisable in the Construction Manager's discretion.
Expenses and time incurred investigating potential changes in the Work.
Royalties and license fees paid for the use of a particular design, process
or product required by the Contract Documents; the cost of defending
suits or claims for infringement of patent or other intellectual property
rights arising from such requirement by the Contract Documents;
payments made in accordance with legal judgments against the
Construction Manager resulting from such suits or claims and payments
of settlements made with the Owner's consent.
Data processing costs related to the Work.
Deposits lost for causes other than the Construction Manager's
negligence or failure to fulfill a specific responsibility to the Owner set
forth in this Agreement.
Legal, mediation and arbitration costs, other than those arising from
disputes between the Owner and Construction Manager, reasonably
incurred by the Construction Manager in the performance of the Work.
Expenses incurred in accordance with the Construction Manager's
standard personnel policy for relocation and temporary living allowances
of personnel required for the Work, in case it is necessary to relocate
such personnel from distant locations.
Other costs. Other costs incurred in the performance of the Work.
Emeroencies and reoairs to damaoed or nonconformino work.
Costs incuned in taking action to prevent threatened damage, injury or
loss in case of an emergency affecting the safety of persons and
property.
Costs incurred in repairing or conecting damaged or nonconforming Work
executed by the Construction Manager or the Construction Manager's
Subcontraclors or suppliers.
Non-Reimbursable Costs. The Cost of the Work shall not include any of the following.
.'l The Cost of the Work shall not include:
.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
paragraph 8.7.1, unless such personnel are directly engaged in the
performance of the Work.49102
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.2 Expenses of the Construction Manager's principal office and offices other
than the site office, except as specifically provided in Paragraph 8.7.
.3 Overhead and general expenses, except as may be expressly included in
Paragraph 8.7.
.4 The Construction Manager's capital expenses, including interest on the
Construction Manager's capital employed for the Work.
.5 The Construction Manager's Fee.
.6 The payment of Retailers' Occupation Tax, the Service Occupation Tax
(both state and local), the Use Tax and the Service Use Tax in lllinois
from which the Owner as a unit of local government is exempt.
.7 Costs which would cause the Guaranteed Maximum Price to be
exceeded.
.2 Cash discounts obtained on payments made by the Construction Manager shall
accrue to the Owner if (1) before making the payment, the Construction Manager
included them in an Application for Payment and received payment therefor from
the Owner, or (2) the Owner has deposited funds with the Construction Manager
with which to make payments; otherwise, cash discounts 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.
Amounts which accrue to the Owner shall be credited to the Owner as a
deduction from the Cost of the Work.
8.10 Accountino 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 accountants 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.
8. 1 1 Pavment Aooroval. The Owner may disapprove a payment, in whole or in part, or
because of subsequent observations, nullify any progress payment previously made, to
such extent as may be necessary, in its opinion, to protect its interests due to:
.1 Defective work not remedied;
.2 Third party claims or reasonable evidence indicating the probable filing of such claims;
.3 Failure to make payments to subcontractors for labor, materials or equipment;
.4 Reasonable evidence that the Work cannot be completed for the unpaid balance of the
Guaranteed Maximum Price;
Failure to prosecute the Work with sufficient workers, materials, and/or
equipment;
Failure to perform the Work in accordance with the Contract Documents.
ARTICLE 9 - CHANGES
9.1 Chanqe 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 wriften 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:
.1 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. lf 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. lf 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. lf 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 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 twenty-one (21) days after the Construction
Manager first recognizes the condition giving rise to the claim. Except in an emergency,56
notice shall be given before proceeding with the Wo*. ln 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 lO.INSURANCE AND BONDING
10.1 The contractor's lnsurance. The construction Manager 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:
.1 workers' compensatlon, disability benefit and other employee benefit claims
under acts applicable to the Work;
.2 under applicable employer's 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;
.7 contractual liability claims involving the Construction Manager's indemnity
obligations; and
.8 loss due to errors or omission with respect to provision of professional services
under this Agreement, including engineering services.
10.2 The Construction Manager's Commercial General and Automobile Liability lnsurance
shall be written for not less than the following limits of liability:
Commercial General Liability lnsurance
Each Occurrence Limit
General Aggregate Limit
Sl,000,000
S2,000,000
Products/Compieted Opera∥ons Agg s2,000,000
Personal&Advertising lnJury Liml $1,000,000
Fire Damage(any one flre) s loO,000
Medical Expenses,each person s 10,000
21
Comprehensive Automobile Liability lnsurance
Combined Single Limit, each accident
or
Bodily lnjury (per person)
Bodily lnjury (per accident)
Property Damage (per accident)
Worker's Compensation & Employer's Liability
Worker's Compensation
Employer's Liability
Bodily lnjury by Accident
Bodily lnjury by Disease
Bodily lnjury by Disease
Commercial Umbrella/Excess Liability
Each Occurrence
Aggregate
Professional Liability
Each Occurrence
Aggregate
$1,000,000
Sl,000,000
Sl,000,000
Sl,000,000
Statutory Lirnits
S 500,000 each accident
S 500,000 po∥cy∥mit
S 500,000 each employee
S2,000,000
S2,000,000
$2,000,000
S2,000,000
10.3 Commercial General Liability lnsurance 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.
Products and Completed Operations insurance shall be maintained for a minimum
period of at least one year after the date of Substantial Completion or final payment,
whichever is earlier.
10.4 Primarv lnsurance. The Construction Manger's insurance shall be primary insurance
as respects the Owner and Engineer. Any insurance or self-insurance maintained by the
Owner and Engineer shall be excess of Construction Manager's insurance and shall not
conlribute with it. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Owner and Engineer.
10.5 Acceotabilitv of lnsurers. The insurance canier used by the Construction Manger
shall have a minimum insurance rating of A:Vll according to the AM Best lnsurance
Rating Schedule.
10.6 The Owner's lnsurance. 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 and 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. lf
the Owner occupies or uses a portion of the Project prlor 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
o@upancy. 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 thiily (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. ln 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. lf 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 incuned by the Construction Manager arising from
the damage.
1O.7 Prooertv lnsurance Loss Adiustment. 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. lf the
trustees are unable to agree between themselves on the settlement of the loss, such
dispute shall also be submifted for resolution pursuant to the dispute resolution
provisions of this Contract.
10.8 Waiver of Subrooation. 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 canied by the Owner
on adjacent properties and under property and consequential loss policies purchased for
the Project after its completion. lf 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.
10.9 Bonds. The Construction Manager shall furnish bonds covering faithful performance of
the Contract, exclusive of the aggregate of the Construction Manager's Fee and the
Engineer's Fee, and payment of the obligations arising thereunder. Bonds may be
obtained through the Construction Manager's, or subcontractor's usual source and the
cost thereof shall be included in the Cost of the Work. The amount of each bond shall
be equal to 100% of the Guaranteed Maximum Price, less the aggregate of the
Construction Manage/s Fee and the Engineefs Fee. The Construction Manager shall
deliver the required bonds to the Owner at least three days before commencement of
any Work at the Project site.
ARTICLE 1.I - TERMINATION
11.1 Bv the Construction Manaqer. Upon seven (7) days'written notice to the Owner, the
Construction Manager may terminate this Contract for any of the following reasons:
.'l if the Work has been stopped for a thirty (30) day period;
a. under court order or order of other governmental authorities having
jurisdiction;
b. 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
c. 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 six$ (60) days;
.3 if the Owner materially delays the Construction Manager in the performance of
the Work without agreeing to an appropriate Change Order; or
.4 if the Owner otherwise materially breaches 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. ln addition, the Construction Manager
shall be paid an amount calculated as set forth in paragraph 1 1.3.
11.2 Bv the Owner for Cause. lf the Construction Manager persistently fails to perform any of
its obligations under this Contract, the Owner may, after seven (7) days'written notice,
24
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:
.1 if the construction Manager persistenfly 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 persistenfly fails to abide by the orders, regulations,
rules, ordinances or laws of governmental authorities having jurisdictionfor
.4 if the Construction Manager otheruvise materially breaches this Contract.
lf the construction Manager fails to cure within the seven (7) days, the owner, withoutprejudice to any other right or remedy, may take possession of the site and complete thework utilizing any reasonable means. ln this event, the construction Manager shall not
have a right to further payment until the work is completed. lf the construction Managerfiles a petition under the Bankruptcy code, this contract shall terminate if ihe
construction Manager or the construction Manager's trustee rejects the Agreement or, ifthere has been a default, the construction Manager is unable to g-ive adequate
assurance that the construction Manager will perform as required by this contract or
othenvise is unable to comply with the requirements for assuming this Agreement under
the applicable provisions of the Bankruptcy code. ln the event the owner exercises its
rights under this paragraph, upon the request of the construction Manager, the owner
shall provide a detailed accounting ofthe costs incuned by the Owner.
11.3 Termination bv the Owner Without Cause. lf 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 conn-ectionwith the work, plus all demobilization costs. The owner shafl 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, commitments and unsetfled 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 'l 1 , the construction Manager shall cooperate with the bwner 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 pafers.
11.4 $uspension Bv 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 thework without cause for such period of time as the owner may deteimine to beappropriate. Adjustments shall be made for increases in the Guaranteed Maximum
Price and/or the date of substantial completion caused by suspension, deray 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 SteD Neootiationq. The parties shall attempt in good faith to resolve all disputespromptly by negotiation, as follows. Either party may give the other party written noticeof any dispute not resorved in the normar course of busineis. Management
representatives of both parties one level above the Project personnel who havepreviously been involved in the dlspute shall meet at a mutually acceptable time andplace within ten ('10) days after delivery of such notice, and thereafter as often as they
reasonably deem necessary, to exchange relevant information and to aftempt to resolve
the dispute. lf 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 ieferred to senior
managers under the aforesaid procedure. lf the matter has not been resolved by suchsenior managers, either party may initiate mediation as provided hereinafter. lf 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 -lso 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. ln the event that any dispute arising out of or relating to this Contract is not
resolved in accordance with the procedures provided in Section i2.t, such dispute shallbe submitted to mediation with American Arbitration Association 1,aaa,'; or
JAMs/Endispute, lnc. lf the mediation process has not resolved the dispute within ihirty(30) days of the submission of the matter to mediation, or such longer period as theparties may agree to, the dispute shall be decided by arbitration as set iorth below.
12.3 Arbitration. All claims, disputes and other matters in question not resolved by mediation(hereinafter referred. to as a "Controversy") between the parties to this Coniract arising
out of or relating to this Contract or the breach thereof shall be decided by arbitration atthe Aldq or JAMS/Endispute, lnc. in accordance with the Construttion lndustryArbitration Rules of the AiAA then in effect. This agreement to arbitrate and any other
agreement or consent to arbitrate entered into in accordance herewith will be speaifically
enforceable under the prevailing arbihation law of any court having jurisdiction. Noticeof demand for arbitration must be filed in writing with the other part! to tnis Contract andwith the AAA or JAMS/Endispute. The demand must be made within a reasonable time
after mediation has been instituted. ln no event may the demand for arbitration be madeafter institution of legal or equitable proceedings based on such Controversy would bebarred by the applicable statute of limitations. Any arbitration may be consolidated with
any other arbitration .proceedings. Either party may join any other interested parties.The award of the arbitrator shall be specifically enforceable in a court of competentjurisdiction.
12.4.1 Continued Performance of the Work. ln 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 eq-ual to 1so% of the
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.
12.5 Reouired in Subcontracts. The Construction Manager shall include the provisions of
this Article 12 in all Subcontracts into which it enters.
ARTICLE I3 - LIQUIDATION AND LIMITATION OF LIABILITY
13.1 Late Comoletion. ln the event that the Work is not Substantially Complete by the date
set forth in this Contract, then promptly after receiving Final Payment, the Construction
Manager shall pay to the Owner as liquidated damages a sum equal to Two Hundred
and Fifty Dollars ($250.00) for each day that the Work is late in reaching Substantial
Completion.
13.2 Limitation of Liabilitv. The Owner acknowledges that the Construction Manager is a
limited liability @mpany 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.
13.4 Conseouential Damaoes. 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 from any such
liability.
ARTICLE 14 . MISCELLANEOUS
14.1 Proiect Slon. 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 $!q. 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 lnteqration. 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 Governino Law. This Contract shall be governed by the laws of the State of lllinois.
14.5 Severabilitv. 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 Assionment. 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.
14.7 Existino Contract Documents. A concept plan and renderings are attached as an exhibit
to this Contract.
Owner: Contractor:
Village of Oak Brook, lllinois, an Burke, LLC, an lllinois limited liability company
lllinois municipal corporation
Date:
Principal
Attest:Date:Date:
Principal
By:
CONSTRUCTION MANAGER'S CERTIFICATION FORM
The assurances hereinafter made by the Construction Manager are each a material
representation of fact upon which reliance is placed by the Owner in entering into the contract
with the Construction Manager. The Owner may terminate the contract if it is later determined
that the construction Manager rendered a false or erroneous assurance; and the surety
providing the performance bond shall be responsible for the completion of the contract.
l, _, hereby certify that I am the
1t'timE-ieerson Certiryng - (Ofice of person Cerlifytns) '
of Burke, LLC, and as such hereby represent and warrant to the owner that the consirrttion
Manager, and its members holding more than five percent (s%) of the outstanding membership
inlerests, its officers and managers are:
(A) not delinquent in the payment of taxes to the lllinois Department of Revenue in
accordance with 65 |LCS 5/j 1-42.1-1;
(B) not baned from contracting as a result of a violation of either Section 33E-3 (bid
rigging) or 33E-4 (bid+otating) of the criminar code or 196'r (r2o rLcs s/33E-3
and 5/33E-4);
(c) not in default, as defined in sILCS 3BSt2, on an educational roan, as defined in
5|LCS 385/1.
ln addition, the Construction Manager hereby represents and warrants to the Owner that
the Construction Manager:
(A) has and wirr compry with a[ raws rerating to the payment of generar prevairing
wages in accordance with the lllinois prevaiting Wage Act (820 iLCS 130/0.01
et seg.);
(B) has and wirr compry with a[ raws rerating to the emproyment preference to
veterans in accordance with the Veterans preference Act (330 ILCS 55/0.01
e, seg.);
(C) has and will comply with all laws relating to the employment of lllinois workers in
accordance with the Emproyment of rinois workers on pubric works Act (30
ILCS 570/l et seg.);
(D) pursuant to 30 ILCS 580/1 et seg. (',Drug-Free Workplace Act,), wi provide a
drug-free workplace by:
(1) Publishing a statement:
a. Notifying employees that the unlawful manufacture, distribution,
dispensation, possession, or use of a controlled substance
including cannabis, is prohibited in the Construction Manager's
workplace;
(E)
b. Specifying the actions that will be taken against employees for
violations of such prohibition;
c. Notifying the employee that, as a condition of employment on
such Contract, the employee will;
i. Abide by the terms of the statement;
ii. Notify the employer of any criminal drug statute conviction
for a violation occurring in the workplace no later than five
(5) days after such conviction;
(2) Establishing a drug-free awareness program to inform employees about:
a. the dangers of drug abuse in the workplace;
b. the Construction manager's policy of maintaining a drug-free
workplace;
c. any available drug counseling, rehabilitation, and employee
assistance program; and
d. the penalties that may be imposed upon employees for drug
violations;
(3) Making it a requirement to give a copy of the statement required by
Subsection (D)(1) to each employee engaged in the performance of the
Contract, and to post the statement in a prominent place in the workplace;
(4) Notifying the Owner within ten (10) days after receiving notice under
paragraph(D)( 1)e from an employee or otherwise receiving actual notice
of such conviction;
(5) lmposing a sanction on, or requiring the satisfactory participation in a
drug abuse assistance or rehabilitation program by any employee who is
so convicted, as required by 30 ILCS 580/5;
(6) Assisting employees in selecting a course of action in the event drug
counseling treatment and rehabilitation is required and indicating that a
trained referral team is in place;
(7) Making a good faith effort to continue to maintain a drug-free workplace
through implementation of this section;
has not excluded and will not exclude from participation in, denied the benefits of,
subjected to discrimination under, or denied employment to any person in
connection with any activity funded under the contract on the basis of race, color,
age, religion, national origin, disability, or sex;
(F) at the time the Construction Manager was awarded this Contract, had an
lllinois Department of Human Rights pre-qualification number or had a
properly completed application for same on file with the lllinois Department of
Human Rights, as provided for in 44 lllinois Administrative Code 750.210;
lf any certification made by the Construction Manager or term or condition in this
contract changes, the Construction Manger shall notify the Owner in writing within seven (7)
days.
CONSTRUCT10N
MANAGER:
By:
(Autho市 zed Agentof CONSTRUCT10N MANAGER)
TIle:
STATE OF ILLINOIS )
)SSCOUNTY OF C00K)
|,the undersigned,a notary pub∥c in and for the State and County aforesaid,hereby
certify that , known to me to be the
(Name ofsignatory) (Office)
of the Construction Manager, appeared before me this day in person and, being first duly
sworn on oath, acknowledged that he/she executed the foregoing certification as his/her free
act and deed.
Notary Priblic