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R-915 - 06/28/2005 - AGREEMENT - Resolutions Supporting DocumentsSECOND SUPPLEMENTAL AGREEMENT CONCERNING THE ESTABLISHMENT OF THE SALT CREEK GREENWAY TRAIL AND THE PERFORMANCE OF PHASE 3 ENGINEERING SERVICES AND CONSTRUCTION SECOND SUPPLEMENTAL AGREEMENT is made and entered into by and between the Forest Preserve District of DuPage County, the Addison Park District, the Village of the Elmhurst Park District, the Village of Oak Brook, and the Village of Villa Park. Each of the foregoing are hereinafter individually referred to as an "Agency" and collectively referred to as the "Agencies." WITNESSETH: S, on February 3, 1998, the Agencies entered into an intergovc er ental agreement entitled "A Revised Intergovernmental Agreement Providing for the Establishment of the Salt Creek Greenway Trail and the Performance of Certain Engineering Services," hereinafter referred to as the "1998 Agreement" 1; and , under the 1998 Agreement, the parties agreed to participate in funding of Phase I engineering services associated with the development and constructs Salt Creek Greenway Trail (defined as the "Project" in the 1998 Agreement), and the J oint of the S, in accordance with the terms of the 1998 Agreement, URS Coiporation 1The Village of Brookfield was a party to the 1998 Agreement but thereafter elected not to be a party i o the First Supplemental Agreement dated April 16, 2002 The Village of Villa Park was not a party to the 1998 Agreement but subsequently determined to participate in the trail project and to become a party to the First Supplemental Agreement The Village of Lyons and the Forest Preserve District of Cook were parties to the 1998 Agreement and the First Supplement thereto, but will proceed with the project under separate agreements 0510010MEW 1 doc RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution No 05 -115 1 (formerly BRW, Inc.), completed the Phase 1 engineering work for the Project; and WHEREAS, pursuant to paragraph 13 of the 1998 Agreement, each Agency committed to proceed with the Phase 2 engineering and construction phase of the Project and to enter into appropriate agreements to implement the Phase 2 engineering and construction phase portions of the Project; and WHEREAS, in accordance with the 1998 Agreement, the Agencies entered into a "First Supplemental Agreement Concerning the Establishment of the Salt Creek Greenway Trail and the Performance of Phase 2 Engineering Services" on April 16, 2002, to proceed with the Phase 2 engineering for the Project; and WHEREAS, URS Corporation (hereinafter "URS ") has completed the Phase 2 ; and , the Agencies desire to proceed with the Phase 3 engineering and construction phase of the Project; and WHEREAS, it is the intent of the Agencies that this Second Supplemental Agrel a continuation of the 1998 Agreement and that all of the terms and conditions in t Agreement are incorporated herein and made a part hereof to the extent such tei conditions are not in conflict with the terms and conditions in this Second Supp: Agreement. forth h �ment is he 1998 -ms and .emental OW, THEREFORE, in consideration of the mutual promises, terms and conditions set ;in, and in the spirit of intergovernmental cooperation, the parties agree as follows. I! Incorporation of Preambles. The preambles set forth above are incorp herein and made a part hereof. RIM /sam S41t Creek 2d Supp Final w /changes 6 -22 -05 2 FPD Resolution Nol 05 -115 21 Forest Press Lead Agency for Phase 3 Engineering. Each Agency hereby recognizes the e District of DuPage County (hereinafter the "DuPage Forest Preserve's) as the lead agency for the purpose of Phase 3 engineering portion of the Project. In its capacity as the lead agency, the DuPage Forest Preserve shall be responsible for coordinating all aspects of the Phase 3 engineering with URS, the Illinois Department of Transportation ( "IDOT ") and the other Agencies, and for monitoring the engineering services performed by URS. 3i Consulting Agreement. In connection with its role as the lead agency, for the Phase 3 engineering, the DuPage Forest Preserve will enter into two contracts (one for each construction zone) with URS to perform the Phase 3 engineering work for the Project pursuant to the contracts entitled "Construction Engineering Services Agreement for Federal Participation" (hereinafter collectively referred to as the "URS Agreements "), which by reference are incorporated herein and made a part of this Second Supplemental Agreement. Each Agency agrees to provide URS with such access to its property as may be necessary to perform the work and to furnish URS with such documents, reports, data, studies dr other information within the Agency's possession as may be relevant to the Project. The DuPage Forest Preserve agrees to require URS, as part of the URS Agreements, to purchase and maintain, at URS's cost, the insurance coverages specified in Exhibit C of the 1998 Agreement In addition, the DuPage Forest Preserve shall require URS to defend, hold harmless and indemnify the Agencies, their elected officials, officers, employees and agents, from and against any and all claims, liabilities, causes of action, losses, judgments, settlements, damages and expenses '(including, but not limited to, reasonable expert witness and attorney fees) that may at any time arise or be claimed by any person or entity, including any employees, agents and 0510010MEW 1 doc RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution No 05 -115 3 subcontractors of URS, as a result of bodily injury, sickness, death or property damage, or as a result of any other claim or suit of any nature whatsoever, allegedly arising out of or in any manner connected with, directly or indirectly, the negligent or intentional acts or omissions on the part lof URS or its contractors, subcontractors, employees or agents in performing the Phase 3 engineer, ing services provided for in the URS Agreements. Lead Agencies for Construction. The Agencies acknowledge that two contracts for the 1construction phase of the Project will be bid and awarded by MOT and cons divi will consist of two construction zones, a North Zone and a South Zone, that the with the line being the intersection of Second Street and Villa Avenue in unincorporated Villa Park in ;Section 3 of York Township. Each Agency hereby acknowledges that the Village of Addison will serve as the lead agency for the construction in the North Zone, and the Village of Oak Brook will serve as the lead agency for the construction in the South Zone. Each lead ion agency will be responsible for monitoring the construction within its respective zone and for working in cooperation with URS to ensure that the Project is constructed in accordance with the approved plans and specifications. Each Agency agrees to provide the two construction lead agencies with such access to its property as may be necessary to perform the construction work and to furnish the lead agencies with such documents, reports, data, studies or other information within the Agency's possession as maybe relevant to the Project. The Agencies recognize that the Construction Cost Estimate for each Agency as identified in the Cost Summary includes a 10% contingency. If the bid for the construction within aA Agency's jurisdiction exceeds the estimated total, including the 10% contingency, the Agency can reject the bid before the contract is awarded, after which it shall cooperate with URS RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 iI FPD Resolution No! 05 -115 to revise the scope of work as necessary so as to bring the cost within the Construction Cost R Estimate. If an Agency does not reject the bid, it shall be responsible for paying the excess cost Project Payments. The total estimated cost of the Phase 3 engineering and construction work for both construction zones is $5,449,669 ($5,069,021 for construction; $380,648 for engineering). The estimated cost related to each Agency is identified in the table dated March 9, 2005, entitled "Salt Creek Greenway Trail Phase 3 Engineering and Construction Cost Summary & Grant Reimbursement Allocation" (hereinafter the "Cost Summary "), 1which is attached hereto and incorporated herein as Exhibit A. Each Agency shall, within 30 days of the date of this Second Supplemental Agreement, deposit with the DuPage County Forest Preserve District the amount of the Phase 3 Engineering costs listed in the Cost Summary under the heading Phase 3 Eng. Cost." Each Agency shall also, within 30 days of the Award of Contract by the Ililinois Department of Transportation, deposit with the DuPage Forest the amount of the on costs listed in the Cost Summary under the heading "Local Share of Construction Cost (25j /o)." No Phase 3 engineering or construction work shall begin until each Agency has deposited with the DuPage Forest Preserve its share of the costs as identified in the Cost Summary Each Agency shall annually appropriate such funds as shall be necessary to carry out its obligations under this Second Supplemental Agreement. 6. Payment Approvals and Reimbursements. (A) Construction Phase Payments. The DuPage Forest Preserve shall maintain the funds deposited by the Agencies relating to the construction of the Project in a separate fund, itemized as to each Agency During the construction, all payment requests shall be submitted by the contractor (or contractors) to URS for its review and approval. URS shall determine the amount of work performed 0510010MEW 1 doc RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution No 61 for the 05 -115 respective Agencies and shall submit the pay request to the appropriate lead construction agency for its review and approval depending on whether the pay request pertains to work performed in the North Zone or the South Zone. After approval of the pay request by the lead construction agency, URS shall forward the pay request to IDOT, which shall be responsible for paying the contractpr directly. IDOT will then invoice the appropriate lead construction agency for reimbursement from the share deposited by the affected Agency or Agencies, as set fofth in the Cost Summary under the designation "Local Share of Construction Cost (25 %)." Within 10 days of receipt of the invoice, the lead construction agency will thereafter forward the invoice to the DuPage Forest Preserve, which shall be responsible for paying the reimbursement to MOT If, upon completion of the construction work, the actual cost of the construction for an Agency is less than the estimated amount in the Cost Summary, the DuPage Forest Preserve shall refund the balance to that Agency. The DuPage Forest Preserve shall provide each Agency and MOT with a quarterly report detailing the status of each Agency's construction cost account. (B) Phase 3 Engineering _ PaMents: During the course of performing the Phase 3 engineering work, URS shall, pursuant to the terms of the URS Agreements, submit to the DuPage Forest Preserve for its review and approval an itemized payment invoice acceptable to MOT specifying in detail the work performed for the period covered by the invoice. URS shall submit the itemized payment invoice to the DuPage Forest Preserve for its review and approval on or about the 15th day of each month, and URS shall provide a copy of the invoice to each affected Agency. If found to be in compliance with the terms of the applicable URS Agreement, the DuPage Forest Preserve shall, within 45 days of receipt of the payment invoice, pay URS the amount specified, provided that no Agency has filed a reasonable written objection with the RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution No 05-115 DuPage Forest Preserve. The payment by the DuPage Forest Preserve shall be made I via wire transfer in accordance with the instructions provided by URS. Within the aforementi 45- day period, the DuPage Forest Preserve shall also submit a copy of the payment invoice and such other documents as may be required to MOT for reimbursement under the CMAQ grant. Within 45 days of receiving each reimbursement payment from IDOT, the DuPage Forest Preserve; shall pay each Agency a percentage of the reimbursement amount based upon the percentage of an Agency's current estimate for the Phase 3 engineering as shown on 'the Cost Summary under the headings "Phase 3 Eng. Cost (North Contract)" and "Phase 3 Eng. Cost (South Contract). The reimbursement percentage for each Agency is specified in the Cost Summary. It is expressly agreed that no Agency shall be entitled to reimbursement in an amount greater than the total of the federal share for the Phase 3 engineering costs as designated in the Cost Summary. If, upon completion of the engineering work, the actual cost of the engineering services performed is less than the estimated amount in the Cost Summary, the DuPage Forest Preserve shall refund the balance to each Agency as per the percentage in the Cost Summary. If, upon completion of the engineering work, the actual cost of the engineering services performed exceeds Ithe estimated amount in the Cost Summary, each Agency shall be responsible for its percentage share as calculated in the Cost Summary and shall pay the extra amount to the DuPage Forest Preserve in order to allow for payment to URS in an amount equal to the actual services performed If the actual cost of the engineering services performed for a particular i Agency exceeds the amount estimated in the Cost Summary, that Agency shall be responsible for the extra, and shall pay the extra amount to the DuPage Forest Preserve in order to allow for payment to URS in an amount equal to the actual services performed on behalf of that Agency 0510010MEW1 doc RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution No 05 -115 7 The DuPage Forest Preserve shall provide each Agency and IDOT with a quarter] the status of each Agency's account. (C) IDNR Reimbursements: The Addison Park District, the Village of y report son, the Elmhurst Park District, and the Village of Oak Brook have received grants from the Illinois Department of Natural Resources (IDNR) for the Project with the intent being to pool these funds with all other grant funds. Upon completion of the Project, those Agencies, with help from URS, shall submit the required documentation to IDNR for reimbursement. Within 30 days of receiving the IDNR reimbursement, each Agency will deposit an equal amount with the DuPage Forest Preserve. Within 45 days of receiving the IDNR reimbursement from the Agencies, the DuPage Forest Preserve shall pay each Agency the appropriate percentage of the amount based upon the final construction costs of the Project. Said IDNR funds are part of the Cost Summary (D) Land Acquisition Reimbursement: The parties acknowledge that the Village of Oak Brook was required to acquire a permanent easement for the Project at a cost of $15,000 and that the parties anticipated that the Village of Oak Brook would be reimbursed in the amount of $125480 1 for said easement, with the Village paying the balance of the acquisition cost. Accordingly, within 45 days of receiving the Local Share of Construction Cost from each Agency as referred to in Paragraph 5, the DuPage Forest Preserve shall pay the Village of Oak Brook the sum of $12,480 for the permanent easement. 7. Interest Payments. Any interest accrued from the funds deposited with the DuPage Forest Preserve pursuant to paragraph 5 shall be retained by the DuPage Forest Preserve to cover the administrative costs associated with administering the Project. 8. Repayment of Grant Funds. If an Agency for any reason terminates its RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution No 05 -115 �'j involvement in the Phase 3 engineering and construction portion of the Project, it serve written notice thereof on the DuPage Forest Preserve, MOT and URS. In such case, the Agency shall not be entitled to a refund for any payments made under this Second Suppilemental Agreement. In addition, if required by IDOT, the Agency shall be responsible for reimbursing MOT for all sums paid to the Agency as part of the 80% federal portion of the Phase 3 and the 75% federal portion of the construction costs under the CMAQ grant. The Agency shall pay the reimbursement directly to MOT within 30 days of receipt of IDOT's written demand for payment. Cooperation. If an Agency has reason to believe that a violation of this Second Supplemental Agreement has occurred or is occurring, written notice thereof specifying in detail the violation and the facts supporting the claim shall be served upon the Agency that allegedly committed or is permitting such violation to occur. The written notice shall also be served on the DuPage Forest Preserve, MOT and all the other Agencies. The Agencies agree to act in good faith and to cooperate with each other to resolve any disputes that may arise in the performance of this Second Supplemental Agreement. In the event an Agency is required to institute any legal action or proceeding, whether at law or in equity, to enforce any provision of thisl Second Supplemental Agreement, the prevailing party in such action or proceeding (as determined by the court) shall be entitled to recover all of its costs and expenses, including, but not lin,i ted to, reasonable expert witness and attorney fees. 10. Indemnification. Each Agency shall defend, hold harmless and indemnify each other Agency, its elected officials, officers, employees and agents from and against all claims, liabilities, causes of action, losses, judgments, settlements, damages and expenses 0510010MEW 1 doc RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution No, 05 -115 C (incl g, but not limited to, reasonable expert witness and attorney fees) that may at any time arise or be claimed by any person or entity as a result of bodily injury, sickness, death or property damage, or as a result of any other claim or suit of any nature whatsoever, allegedly arising out of or in any manner connected with, directly or indirectly, the negligent or intentional acts or omissions of the indemnifying Agency's performance of its obligations under this Second Supplemental Agreement. 11. 'Transfers. No Agency shall sell, assign or otherwise transfer its interest under this Second Supplemental Agreement without the written approval of the other Agencies. The provisions set forth in this Second Supplemental Agreement shall be binding upon and inure to the benefit of the approved successors and assigns of the parties. 12 Notices. All notices given under this Second Supplemental Agreement shall be in writing and shall be either (a) served personally during regular business hours; (b) served by facsimile transmission during regular business hours; or (c) served by certified or registered mail, return receipt requested, properly addressed with postage prepaid and deposited in the United States mall. Notices served personally or by facsimile transmission shall be effective upon receipt, and notices served by mail shall be effective upon receipt as verified by the United States Postal Service. Notices shall be served at the following addresses. Forest Preserve District Village of Villa Park of DuPage County Attn: President Attn: Executive Director 20 S. Ardmore 3 S. 580 Naperville Road Villa Park, IL 60181 Wheaton; IL 60187 -8761 Village off Addison Attn: Mayor 1 Friendship Plaza Addison, IL 60101 RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 10 Addison Park District Attn: President 120 E. Oak Street Addison, IL 60101 -2895 FPD Resolution N i 105-115 Elmhurst Park District Attn: President 225 Prospect Elmhurst, IL 60126 Village of Oak Brook Attn: President 1200 Oak Brook Road Oak Brook, IL 60523 113. Execution. Each Agency shall execute a separate original signature page and send the original page to the DuPage Forest Preserve. After all the original signature pages have been received, the DuPage Forest Preserve shall provide each Agency with a fully executed copy of this Second Supplemental Agreement 14. Incorporation. The provisions set forth herein represent the entire agreement between the parties and supersede any previous oral or written agreements with respect to the Phase 3 engineering services and construction of the Project, as it is the intent of the parties to provide for integration within the terms of this Second Supplemental Agreement No provision may be modified in any respect unless such modification is in writing and signed by each Agency. IN WITNESS WHEREOF, the parties have entered into this Second Supplemental Agreement as of the day of , 2005. [SIGNATURES CONTAINED ON PAGES 12 -171 SIGNATURE PAGE FOR SECOND SUPPLEMENTAL AGREEMENT CONCERNING THE ESTABLISHMENT OF THE SALT CREEK GREENWAY TRAIL AND THE PERFORMANCE OF PHASE 3 ENGINEERING SERVICES AND CONSTRUCTION 0510010MEW 1 doc RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 11 FPD Resolution No 05 -115 FOREST PRESERVE DISTRI OF DUPAGE COUNTY I' m Attest: APPROVAL AUTHORIZED BY: Robert I Kuhn, 1V 111 East Napervil (630) 75 solution No. 05 -115 Mork itchell, Moss, Mork & Lechowicz, LLC Jefferson Avenue .e, IL 60540 5 -8073 President Secretary (Signatures continued on pages 13 through 17) SIGNATURE PAGE FOR SECOND SUPPLEMENTAL AGREEMENT CONCERN i ING THE ESTABLISHMENT OF THE SALT CREEK GREENWAY TRAIL AND THE PERFORMANCE OF PHASE 3 ENGINEERING SERVICES AND CONSTRUCTION RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution Noi 05 -115 12 VILLAGE OF ADDISON 0 Attest: APPROVAL AUTHORIZED BY: lution No. R -98 -11 Village President Village Clerk (Signatures continued on pages 14 through 17) SIGNATURE PAGE FOR SECOND SUPPLEMENTAL AGREEMENT CONCERNING THE ESTABLISHMENT OF THE SALT CREEK GREENWAY TRAIL AND THE PERFORMANCE OF PHASE 3 ENGINEERING SERVICES AND CONSTRUCTION 0510010MEW 1 doc RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 13 FPD Resolution Nol 05 -115 APPROVAL AUTHORIZED BY: ance No lution No. ADDISON PARK DISTRICT By: President Attest: Secretary (Signatures continued on pages 15 through 17) SIGNATURE PAGE FOR SECOND SUPPLEMENTAL AGREEMENT CONCERNING THEI ESTABLISHMENT OF THE SALT CREEK GREENWAY TRAIL AND THE PERFORMANCE OF PHASE 3 ENGINEERING SERVICES AND CONSTRUCTION RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution Noy 05 -115 14 APPROVAL AUTHORIZED BY: I solution No. VILLAGE OF VILLA PARK 0 Attest: Village President Village Clerk (Signatures continued on pages 16 through 17) SIGNATURE PAGE FOR SECOND SUPPLEMENTAL AGREEMENT CONCERNING THE ESTABLISHMENT OF THE SALT CREEK GREENWAY TRAIL AND THE PERFORMANCE OF PHASE 3 ENGINEERING SERVICES AND CONSTRUCTION 0510010MEW 1 doc RIM /sam Salt Creek 2d Supp Final w /changes 6 -22 -05 FPD Resolution No 05 -115 15 ELMHURST PARK DISTRICT By: President Attest: S ecretary APPROVAL AUTHORIZED BY: Resolution No. R -01 -98 (Signatures continued on page 17) SIGNATURE PAGE FOR SECOND SUPPLEMENTAL AGREEMENT CONCE] THE ESTABLISHMENT OF THE SALT CREEK GREENWAY TRAIL AND TH PERFORMANCE OF PHASE 3 ENGINEERING SERVICES AND CONSTRUCT RIM /sam Shct Creek 2d Supp Final w /changes 6 -22 -05 16 FPD Resolution No NING �ON !05 -115 VIl APPROVAL AUTHORIZED BY- RESOLUTION 2005- AG -EX1 -R -915 0510010ME A 1 doc RIM/sam Salt Creek 2d Supp Final w /changes 6 -22 -05 17