SUBSTITUTE ORDINANCE
WHEREAS, The Chicago Department of Fleet and Facility Management ("2FM", the "Department") wishes to retain an entity for the purposes of designing and building a Joint Public Safety Training Campus ("JPSTC"), and other improvements, to be located at 4301 West Chicago Avenue; and
WHEREAS, The JPSTC is intended to provide combined indoor and outdoor training spaces that both improve upon the current Chicago Police Department ("CPD") and Chicago Fire Department ("CFD") training capabilities as well as offer modern facilities with joint-training opportunities; and
WHEREAS, The design-build project is further anticipated to catalyze investment in the West Garfield Park community by leveraging the City of Chicago's ("City") strategy of public infrastructure modernization as a means to provide economic stimulus; and
WHEREAS, The project, accordingly, will also include, in addition to the design-build of the JPSTC, site preparation for two future structures intended for commercial development; and
WHEREAS, The Chicago Infrastructure Trust ("CIT"), on behalf of the City, led the procurement for the design-build of JPSTC in coordination with the City and the Department; and
WHEREAS, CIT, on behalf of the City, issued a Request for Qualifications ("RFQ") for the design-build of the JPSTC on October 11, 2017, and issued a Request for Proposals ("RFP") to short-listed, qualified entities on May 31, 2018; and
WHEREAS, AECOM Constructors Chicago ("AECOM"), a joint venture, identifying AECOM Services of Illinois, Inc. as the Lead Engineering Firm, and Hunt Construction Group, Inc., as the Lead Contractor, was evaluated as qualified pursuant to the RFQ, and submitted a proposal in response to the RFP; and
WHEREAS, An evaluation committee, which included members from CPD, CFD, 2FM, the Department of Water Management, and the Department of Transportation, and CIT, with expertise in design and construction, reviewed the credentials, expertise, and capacity of the teams that submitted RFP responses and selected AECOM as the most highly rated respondent; and
WHEREAS. AECOM has evaluated CPD and CFD program requirements and has made recommendations to the City regarding the allocation of training functions among various City facilities and resources, including the JPSTC, in order to optimize fulfillment of program goals, and such recommendations are summarized in a master program plan prepared by AECOM for background and to inform the potential functions and features ofthe JPSTC; and
WHEREAS, The City and AECOM have defined, in further detail, the potential program functions and features that may be included in the JPSTC; and
|1010|
WHEREAS, The Department and AECOM have agreed to the terms and the guaranteed maximum price for the design-build ofthe JPSTC and the site preparation, which are reflected in the design-build agreement, which is attached hereto as Exhibit A ("Design-Build Agreement"); and
WHEREAS, the Design-Build Agreement separates the design-build project into two parts: a design phase, during which the functions and features of the JPSTC will be finalized upon mutual agreement of the Department and AECOM, taking into account site and market conditions, and, thereafter, preparation of the designs for the project, and a construction phase; and
WHEREAS, The Design-Build Agreement authorizes the 2FM Commissioner to make payment for design services, the construction of the JPTSC, and site preparation for the two future commercial structures, all subject to appropriation of all required funds; and
WHEREAS, The Department wishes for the City Council to authorize the Commissioner of 2FM to finalize and enter into such Design-Build Agreement.
Now, Therefore, // is Ordained by the City Council of the City as follows:
The recitals are incorporated herein.
The Commissioner of 2FM is authorized to negotiate and enter into a Design-Build Agreement with AECOM, in substantially the form attached hereto as Exhibit A, with such other terms and modifications thereto as determined by the 2FM Commissioner to be necessary and appropriate, subject to the availability of duly appropriated funds. The Commissioner is authorized to enter into such other ancillary documents as are necessary in connection with the Design-Build Agreement.
This ordinance is effective upon its passage and approval.
Exhibit "A" referred to in this ordinance reads as follows:
|1010|
"EXHIBIT A"
DESIGN-BUILD AG REEM ENT BETWEEN THE CITY OF CHICAGO
DEPARTMENT OF FLEET & FACILITY MANAGEMENT
AND
AECOM CONSTRUCTORS CHICAGO JOINT VENTURE
JOINT PUBLIC SAFETY TRAINING CAMPUS
RAHM EMANUEL MAYOR
City Funded
DAVID J. REYNOLDS COMMISSIONER
DESIGN-BUILD AGREEMENT BETWEEN CITY OF CHICAGO AND DESIGN-BUILDER
TABLE OF ARTICLES
ARTICLE 1 AGREEMENT
AR TICLE 2 GENERAL PROVISIONS
ARTICLE 3 DESIGN-BUILDER'S RESPONSIBILITIES
ARTICLE 4 CITY'S RESPONSIBILITIES
ARTICLE 5 SUBCONTRACTS
ARTICLE 6 TIME
ARTICLE 7 [OMITTED]
ARTICLE 8 COMPENSATION AND COST OF THE WORK
ARTICLE 9 CHANGES IN THE WORK
ARTICLE 10 PAYMENT FOR WORK
ARTICLE 11 INDEMNITY, INSURANCE, BONDS
ARTICLE 12 SUSPENSION AND TERMINATION OF THE AGREEMENT AND CITY'S RIGHT
TO PERFORM DESIGN-BUILDER'S RESPONSIBILITIES
ARTICLE 13 DISPUTE MITIGATION AND RESOLTUION
ARTICLE 14 MISCELLANEOUS PROVISIONS
|1010|JPSTC Design- Build Agreement
EXHIBITS
EXHIBIT 1 - CHICAGO PUBLIC SAFETY TRAINING -MASTER PROGRAM PLAN EXHIBIT 2 - JPSTC SCHEMATIC DESIGNS AND PROJECT PROGRAM EXHIBIT 3 - CITY APPROVED DESIGN DOCUMENTS EXHIBIT 4 - CITY PROVIDED SITE INFORMA TION EXHIBIT 5 - REQUEST FOR PROPOSALS EXHIBIT 6 - PROJECT SCHEDULE
EXHIBIT 7 - GUARANTEED MAXIMUM PRICE ITEMIZED BUDGET
EXHIBIT 8 - KEY PERSONNEL
EXHIBIT 9A - DESIGN SERVICES
EXHIBIT 9B - PRECONSTRUCTION SERVICES
EXHIBIT 10A - DESIGN COMPENSATION
EXHIBIT 10B - CONSTRUCTION COMPENSATION
EXHIBIT 11 - ONLINE ECONOMIC DISCLOSURE AFFIDAVITS
EXHIBIT 12 - DESIGN BUILDER'S WASTE REMOVAL AFFIDAVIT
EXHIBIT 13 - PREVAILING WAGE RATES
EXHIBIT 14 - INSURANCE REQUIREMENTS AND CERTIFICATE
EXHIBIT 15 - BONDING REQUIREMENTS AND FORMS
EXHIBIT 16 - MINORITY AND FEMALE U TILIZATION COMMITMENTS
EXHIBIT 17 - DIVERSITY AND COMMUNITY ENGAGEMENT COMMITMENTS
EXHIBIT 18 - SPECIAL CONDITIONS REGARDING MBE/WBE COMMITMENT AND SCHEDULES
EXHIBIT 19 - CONSTRUCTION TERMS AND CONDITIONS JPSTC Design- Build Agreement
ARTICLE 1 AGREEiMENT
This Agreement ("Agreement") is entered into as ofthe day of , 2019
("Effective Date") by and between AECOM Constructors Chicago, JV, an Illinois joint venture ("Design-Builder" or "Contractor"), and the City of Chicago, a municipal corporation and home rule unit of local government existing under the Constitution ofthe State of Illinois, acting through its Department of Fleet and Facility Management ("the City") (each a "Party" and collectively the "Parties), at Chicago, Illinois.
BACKGROUND
WHEREAS, on May 31, 2018, the Chicago Infrastructure Trust, on behalf of the City, issued a Request for Proposal ("RFP") for the design and construction of a Joint Public Safety Training Campus ("JPSTC"), and other improvements, to be located at 4301 West Chicago Avenue ("Project");
WHEREAS, the Project consists ofthe JPSTC facilities and improvements associated with the training of Chicago's police and fire department personnel, and the preparation of sites intended for future commercial developments ("Commercial Site Preparation");
WHEREAS, the Design-Builder has provided recommendations to City regarding a comprehensive program for first responder training, which includes fulfillment of various program functions among multiple locations in the City ("Master Program Plan"), attached hereto as an exhibit for background purposes, so as to maximize training facilities for first responders;
WHEREAS, the Parties have further reviewed and confirmed a potential Project Program, attached as Exhibit 2;
WHEREAS, the Parties agree that the Project will be divided in 2 phases, a Design Phase and a Construction Phase;
WHEREAS, upon satisfactory completion of the Design Phase, the City shall have the right to terminate the Project and pay Design-Builder for the Design Phase;
WHEREAS, the Design-Builder shall have the obligation to complete the Construction Phase only after the City issues a Notice to Proceed for the Construction Phase, which the City may issue or not issue in its sole and absolute discretion;
WHEREAS, the Design-Builder has agreed that the total compensation for completing the Design and Construction Phases of the Project, fulfilling, the Project Program requirements, as finalized and mutually agreed upon during the Design Phase, shall not exceed the Guaranteed Maximum Price ("GMP") as set forth in this Agreement, and that any costs over such amount shall be borne by the Design-Builder;
WHEREAS, the Design-Builder has agreed that it shall provide the Design Services for a sum not to exceed 6.5% ofthe Guaranteed Maximum Price as set forth in this Agreement;
WHEREAS, the Design-Builder has agreed that to provide all the required General Conditions and General Requirements services needed to complete the Construction Phase for a combined total sum
|1010|JPS TC Design- Build Agreement
that does not exceed 7.0% ofthe Guaranteed Maximum Price as set forth in this Agreement (the "General Conditions & General Requirements Limits'");
WHEREAS, the Design-Builder has agreed that the total Design-Builder overhead and profit compensation associated with soliciting and managing all subcontracted work and materials will be determined by applying a fixed percentage mark-up of 4.5% to all eligible and documented Project costs as set forth in this Agreement;
WHEREAS, the Design-Builder agrees to complete the Project in accordance with the Project Schedule, as may be refined pursuant to the Agreement.
NOW, THEREFORE, for and in consideration of the terms and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
ARTICLE 2 GENERAL PROVISIONS
INCORPORATION OF RECITALS. The recitals are incorporated herein.
RELATIONSHIP. The City and the Design-Builder agree to proceed with the Project on the basis of trust, good faith and fair dealing. The Design-Builder agrees to procure or furnish, as permitted by the laws of Illinois, the Design Services and Construction Services as set forth in this Agreement.
The Design-Builder represents that it is an independent architecture, engineering, and construction contractor and that it is familiar with the type of work it is undertaking.
Neither the Design-Builder nor any of its agents or employees shall act on behalf of or in the name ofthe City unless authorized in writing by the City's Representative.
The City and the Design-Builder shall perform their obligations with integrity, ensuring at a minimum that:
Conflicts of interest shall be avoided, disclosed promptly to the other Party and resolved promptly upon disclosure; and
The Design-Builder and the City warrant that they have not and shall not pay nor receive any contingent fees or gratuities to or from the other Party, including their agents, officers and employees, Subcontractors or others for whom they may be liable, to secure preferential treatment.
Build Agreement
EXTENT OF AGREEMENT This Agreement is solely for the benefit ofthe Parties, represents the entire and integrated agreement between the Parties, and supersedes all prior negotiations, representations or agreements, either written or oral. The City and the Design-Builder agree to look solely to each other with respect lo the performance ofthe Agreement. The Agreement and each and every provision are for the exclusive benefit ofthe City and the Design-Builder and not for the benefit of any third party or any third party beneficiary except to the extent expressly provided in the Agreement.
DEFINITIONS
"AECOM Constructors Chicago, JV" or "Design-Builder" is an Illinois joint venture comprised of Hunt Construction Group, Inc., Berglund Construction Company, GMA Construction Group, and BOWA Construction.
"Commissioner" or "2FM Commissioner" means the Commissioner of the Chicago Department of Fleet and Facility Management.
"Construction Phase" means that period of performance under the Agreement commencing with the issuance of a notice to proceed by the City and continuing until the date of Final Completion and acceptance of Work by the City.
"Construction Services" means all services provided hereunder, including the provision of fixtures and personal property, and provision of the Commercial Site Preparation services, as specified in the Design Documents, but excluding the Design Services.
"Contingency" means the amount of funds, which the Design-Builder may expend in connection with the Project in accordance with Section 8.3.
"Contract Documents" or "Agreement" means this Agreement, as may be amended, any exhibits to the Agreement, and any documents incorporated in the Agreement by reference.
"Contract Price" means, depending upon the context, "GMP" or a lump-sum line item in the Detailed Project Budget.
"Cost of the Work" means the following costs necessarily and actually incurred by Design-Builder in the proper performance ofthe Work: costs for Design Services, Direct Costs (including for labor and materials), General Conditions Costs, General Requirements Costs, and Soft Costs. To the extent Contingency is used by Design-Builder, such amounts will be considered Cost ofthe Work and be categorized and paid accordingly. Cost of the Work is generally outlined in Article 8 and expressly set forth in Exhibit 10 A and Exhibit 10B. Cost of the Work does not include any costs otherwise excluded by the Contract Documents or expressly required by the Contract Documents to be provided by Design-Builder at no additional cost to the City, and shall not, in any event, exceed the GMP.
"Day" means calendar day, unless otherwise specifically defined.
"Defective Work" is any portion ofthe Work not in conformance with the Contract Documents.
JPSTC Design- Build Agreement
"Deliverables" means any and all documents, including but not limited to Design Documents and any plans. Specifications, drawings, surveys, shop drawings, and reports prepared by the Design-Builder in the performance ofthe Agreement.
"Design-Builder's Fee" or "Fee" means a fixed percentage mark-up equal to four-and one-half percent (4.5%) applied to portions ofthe Cost of Work as specified in Article 8 and Exhibit 10B.
"Design Development Phase Documents" or "Design Documents" means the documents prepared by Design-Builder in the performance ofthe Design Services and incorporated herein, including the Specifications, and any plans or drawings or reports, all as prepared under the standards of performance specified herein.
"Design Development Phase" or "Design Phase" means the period of performance during which the Design-Builder will perform the professional services including creating detailed Project design documents, and analysis of existing City facilities that may be used for aspects of police and fire training, and which may include Preconstruction Services, all as more specifically described in Exhibit 9A and Exhibit 9B. Design-Builder shall complete the Design Services pursuant to the schedule for such services set forth in this Agreement.
"Design Services" means all design services provided by Design-Builder pursuant to the terms of this Agreement, including the creation of any plans, specifications, drawings, or reports associated design work needed to complete any permit, bidding, and/or construction documents, including any construction administration services provided by architects and engineers, as more fully specified in the Agreement, including in Exhibit 9A - Design Services.
"Detailed Project Budget" means line-item budgets prepared and updated by the Design-Builder throughout the Project's design that establishes itemized costs for all components needed to fully deliver and execute the Construction Phase for such discrete components ofthe Project as mutually agreed upon by the parties during the Design Phase.
"Final Completion and Acceptance ofthe Work" or "Date of Final Completion" means the date when the Design-Builder's obligations under this Agreement are complete and accepted by the City and the final payment becomes due and payable in accordance with the terms herein.
"General Conditions Costs" or "General Conditions" means (i) the wages and salaries of personnel in the direct employ of Design-Builder whose duties are primarily or exclusively devoted to overseeing and coordinating Project construction activities and expenses directly related thereto, as more fully specified in Exhibit 10B.
"General Requirements Costs" or "General Requirements" means costs and expenses incurred by Design-Builder in order to maintain the Worksite. Such costs and expenses are more fully specified in Exhibit 1QB.
"Guaranteed Maximum Price" or "GMP" is the maximum amount of funds that the City will pay Design-Builder for the delivery ofthe Project, including any and all Design Services, as set out in Section 8.1; Design-Builder shall complete the Project for an amount not to exceed the GMP, and any costs incurred by Design-Builder in excess ofthe GMP shall be borne by the Design-Builder.
"Master Program Plan" has that meaning set forth in the recitals, and is detailed in Exhibit 1.
|1010|JPSTC Desimi- Build Agreement
"Preconstruction Costs" are the General Conditions costs that are incurred during the Design Phase.
"Preconstruction Services'" are General Conditions services that are performed during the Design Phase, as further described in Exhibit 913.
"Program" or "Project Program" means the descriptive list of functions, space requirements and relationships, flexibility and expandability requirements, special equipment, systems and materials, site and other use requirements that the City anticipates implementing through the Project, subject to the validation and finalization ofthe Program during the Design Phase. The Project Program is described in more detail in Exhibit 2. JPSTC Schematic Designs and Project Descriptions , which shall be modified and finalized upon mutual agreement of the Parlies, during the Design Phase. Such finalized Program shall be deemed incorporated in the Agreement.
"Project" means, as identified in Article 1, the buildings, facilities and other improvements for which the Design-Builder is to perform the services or Work under this Agreement.
"Project Schedule" is attached hereto as Exhibit 6. "Time" and "Contract Time" refer to the schedule in Exhibit 6, as may be refined. Upon the Effective Date ofthe Agreement, the Project Schedule shall include the schedule for completion of the Design Services, and shall be refined by the Parties prior to issuance by the City ofthe notice to proceed to the Construction Phase, to include the Schedule of Work. Each refinement ofthe Project Schedule, in accordance with the terms ofthe Agreement, shall be deemed incorporated in the Agreement in Exhibit 6.
"Schedule of Work", as further described in Exhibit 9A Design Services, means the schedule prepared by Design-Builder during the Design Phase and updated throughout the Construction Phase, which establishes milestone dates and the completion date for performance of Construction Services, and indicates the dates for the start and completion of the various stages ofthe Work.
"Soft Costs" means costs incurred for insurance, performance bonds and similar costs, as more fully specified in Article 8.
"Specifications" means the written requirements for materials and equipment to be used in the Work.
"Subcontractor" is a party or entity retained by the Design-Builder to provide the labor, materials, equipment or services necessary to complete any portion of the Work, and all subcontractors of any tier, including suppliers and material persons, whether or not in privity with you.
"Substantial Completion" or "Date of Substantial Completion" means the dale when the Design-Builder's obligations in relation to the Work, or of a designated portion ofthe Work, are complete, except for Punch List Work, in accordance with the Contract Documents, subject to the approval ofthe City, not to be unreasonably withheld, and the City may occupy or utilize the Project, or a designated portion of the Project, for the use for which it is intended, in accordance with the Agreement.
"Terrorism" means a violent act, or an act that is dangerous to human life, property or infrastructure, that is committed by an individual or individuals and that appears to be part of an effort to coerce a civilian population or to influence the policy or affect the conduct of any government by coercion. Terrorism includes, but is not limited to, any act certified by the United Stales Secretary of Treasury as an act of terrorism pursuant to the T errorism Risk Insurance Act, as amended.
|1010|.IPSTC Design- Build Agreement
"Warranty Commencement Dale"" means, with respect to the Project, the date of Final Completion and Acceptance of the Work. This date shall be confirmed by a site specific Certificate of Warranty Commencement Date and signed by the City and the Design-Builder, signatures shall not be unreasonably withheld.
"Work" means the work and services required, or reasonably inferred to be required, to bring the Project to completion.
"Worksite" means the location of the Project.
Definitions for defined terms used in the Agreement and not listed above may be found in Exhibits 9A, 9B, 10A and 10B or Exhibit 19 Construction Terms and Conditions.
2.05 ORDER OF PRECEDENCE. In case of conflict or inconsistency, the order of precedence ofthe component parts of the Contract Documents is as follows:
this Agreement, as may be amended, excluding exhibits;
the exhibits (other than those exhibits listed in 3. below) and appendices to this Agreement; and
the Design Documents;
The foregoing order of precedence governs the interpretation ofthe Contract in all cases of conflict or inconsistency in it.
Exhibits attached to this Agreement are incorporated by reference and made a part of this Agreement.
Unless expressly stated otherwise in the Agreement, references to "City" in the context of approvals for the Work, including with respect to Project Schedule and GMP, shall mean the Commissioner.
ARTICLE 3 DESIGN-BUILDER'S RESPONSIBILITIES
The Design-Builder has overall responsibility for and shall provide complete Design Services and Construction Services and furnish all design services, materials, equipment, tools and labor as necessary or reasonably inferable lo complete the Project, or any phase of the Project, in accordance with the City's requirements and the terms of this Agreement and pursuant to applicable law, including the City of Chicago Building Code. The Design-Builder shall complete the Project for a sum not to exceed the GMP, and by a date that is no later than the completion date set forth in Exhibit 6 Project Schedule, as such date may be extended pursuant to the terms of the Agreement.
The Design-Builder shall be responsible for procuring or furnishing the design and for the construction ofthe Project consistent with the City's Program, as mutually agreed upon by the Parties during the Design Phase, as such may be modified by the City during the course ofthe Project, and in compliance with applicable laws, including the City of Chicago Building Code. The Design-Builder shall at all times comply in letter arid spirit with, and demonstrate good faith efforts to achieve, affirmative action goals of the City, as those goals may be set forth in the Special Conditions Regarding MBE and WBE Commitment of Exhibit 18, and in any other terms and provisions of this Agreement, as well as other workforce goals set forth in this Agreement.
|10 10|JPSTC Design- Build Agreement
DESIGN SERVICES
ARCHITECT/ENGINEER Architectural and engineering services shall be procured from licensed, independent design professionals retained by the Design-Builder or furnished by licensed employees of the Design-Builder, as permitted by the law ofthe State of Illinois. The person or entity providing architectural and engineering services shall be referred to as the Architect/Engineer. If the Architect/Engineer is an independent design professional, the architectural and engineering services shall be procured pursuant to a separate agreement between the Design-Builder and the Architect/Engineer. The Architect/Engineer for the Project is AECOM Technical Services, Inc
DESIGN NOTICE TO PROCEED
On or after the Effective Date, the City, in its discretion, may issue a notice to proceed to the Design Phase. Upon issuance by the City ofthe notice to proceed to the Design Phase, Design Builder shall commence the Design Phase services (including Design Services and Preconstruction Services) specified in Exhibit 9A and Exhibit 9B. Within 30 days of the Effective Date, but no later than 10 days after issuance of the notice to proceed, Design-Builder shall submit its initial Schedule D MBE/WBE utilization compliance plan for the Design Phase, and supporting Schedule Cs as described in Exhibit 18. Design Builder shall execute and complete the Design Services, including providing the City with , the Design Phase Deliverables, in accordance with the terms of this Agreement and Exhibit 9A, pursuant to the schedule for completion ofthe Design Phase contained in Exhibit 6, as may be modified or refined pursuant to the terms of the Agreement.
DESIGN ACCEPTANCE
Upon receipt ofthe Deliverables as required under Exhibit 9 A and pursuant to the Project Schedule in Exhibit 6, the City shall review and either accept the Deliverables or provide written comments identifying concerns that it has with the deliverables or modifications that it wishes to be made to the Deliverables. Design Builder shall promptly make modifications to the Deliverables to address the City's comments and submit the revised Deliverables to the City. This process shall be repeated until the City wishes to accept the Deliverables ("Design Documents Acceptance").
Within 30 days of the City's notice of Design Documents Acceptance, the Contractor shall submit a package of Project information that includes:
fully executed copies of an updated Schedule D - MBE/WBE utilization compliance plan for both the Design and Construction Phases, along with supporting Schedule Cs as described in Exhibit 18.
updated Detailed Project Budget
updated and detailed Schedule of Work for the Construction Phase, and
complete updated set of Design Phase Deliverables.
3.1.3 PROGRAM
The Design-Builder will design, and, if it receives a Notice to Proceed for Construction, construct the Project in a way so that it fulfills the Program elements, as finalized and mutually agreed upon during the Design Phase, as described in Exhibit 9A and Exhibit 9B, for a sum not to exceed the GMP. The Program shall include (but shall not be limited to) such specified functional requirements, local, state or federal requirements pertaining to police and fire training facilities, incorporation of specified building materials, and requirements pertaining to preparation of a portion of the site for future commercial development, as well as any elements necessary to effectuate the Program. The parties acknowledge and agree that during the execution ofthe Design Phase, the parties may modify the Program, as a
10
JPSTC Design- Build Agreement
consequence ofthe Design Phase activities, provided that the Design-Builder agrees that the finalized Program shall be designed to optimize the functionality ofthe Project.
3.1.4 CONSTRUCTION NOT ICE TO PROCEED
After Design-Builder provides the documents required following Design Documents Acceptance, the City has the option to issue a Notice to Proceed (NTP) with the Construction Phase ofthe Project, or to issue notice to the Design-Builder of termination ofthe Agreement. If the Commissioner elects to terminate the Agreement at this juncture, the Contractor shall be compensated for the Design Services and the Preconstruction Services, pursuant to the methodology in Section 10.1.
3.1.5 DESIGN DOCUMENTS
Upon approval and acceptance of the Design Documents by the City and the issuance ofthe notice to proceed to the Construction Phase, the Design Documents shall, subject to written City approval, be listed at, deemed to be incorporated in Exhibit 3 and incorporated in the Agreement and made subject to the terms ofthe Agreement. The City shall have no obligation to proceed to the Construction Phase, and shall have no obligation to compensate Design-Builder for any Construction Services (except, for clarification, regarding Pre-Construction Services as provided and limited by Section 3.1.4) performed by Design-Builder prior to the issuance of the Notice to Proceed.
If the Commissioner issues a Notice to Proceed, the Contractor, within 14 days of receipt, shall provide the City with fully executed copies ofthe documents in Exhibit 9A and Exhibit 9B, including the performance and payment bond and proof of insurance for the Construction Phase. Failure to provide such documents within this timeframe shall be an event of default.
3.1.6 DESIGN SERVICES WARRANTY
The Design-Builder warrants to City the sufficiency and completeness of all Design Services performed and that all drawings, specifications, and other information furnished or provided by Design-Builder shall be free from material errors and omissions. Approval or acceptance of any Design Services by City shall not in any way release Design-Builder from any duty, responsibility or liability for such services, it being understood that City is at all times relying upon Design-Builder's professional skill and knowledge in performing the Design Services.
3.02 OWNERSHIP OF DOCUMENTS
OWNERSHIP OF DRAWINGS AND DOCUMENTS
Upon payment by the City to Design-Builder, pursuant to the terms of the Agreement, for the Deliverables provided by Design-Builder under this Agreement, including any entity operating under subcontract with Design-Builder, such Deliverables become property of the City, including all copyrights therein as specified in the section pertaining to copyrights, below. During performance ofthe Agreement, Design-Builder is responsible for any loss or damage to the Deliverables, data, findings or information while in Design-Builder's or any subcontractor's possession. Any such lost or damaged Deliverables, data, findings or information must be restored at the expense of the Design-Builder. If not restorable, Design-Builder must bear the cost of replacement and of any loss suffered by the City.
COPYRIGHT
Design-Builder and the City agree that, to the extent permitted by law, the Deliverables to be produced by Design-Builder at the City's instance and expense under this Agreement are conclusively considered "works made for hire" within the meaning and purview of Section 101 ofthe United States Copyright Act, 17 U.S.C. §101 el seq., and that upon payment by the City to Design-Builder, pursuant to the terms ofthe Agreement, for the Deliverables provided by Design-Builder under this Agreement, including any
1 1
JPSTC Design- Build Agreement
entity operating under subcontract with Design-Builder, the City will be the sole copyright owner of such Deliverables and of all aspects, elements and components of them in which copyright can subsist, and of all rights to apply for copyright registration or prosecute any claim of infringement. Notwithstanding anything in this Agreement to the contrary, Design-Builder shall be entitled to retain one copy of all Deliverables for record keeping purposes.
3.2,2.1 To the extent that any Deliverable does not qualify as a "work made for hire," and upon payment by the City to Design-Builder, pursuant to the terms ofthe Agreement, for the Deliverables provided by Design-Builder under this Agreement, including any entity operating under subcontract with Design-Builder, Design-Builder irrevocably grants, conveys, bargains, sells, assigns, transfers and delivers to the City, its successors and assigns, all right, title and interest in and to the copyrights and all U.S. and foreign copyright registrations, copyright applications and copyright renewals for them, and other intangible, intellectual property embodied in or pertaining to the Deliverables prepared for the City under this Agreement, and all goodwill relating to them, free and clear of any liens, claims, or other encumbrances, to the fullest extent permitted by law. Design-Builder will, and will cause all of its subconsultants and subcontractors, employees, agents and other persons within its control to execute all documents and perform all acts that the City may reasonably request in order to assist the City in perfecting its rights in and to the copyrights relating to the Deliverables, at the sole expense ofthe City. Design-Builder warrants to the City, its successors and assigns, that on the date of transfer Design-Builder is the lawful owner of good and marketable title in and to the copyrights for the Deliverables and has the legal rights to fully assign them. Design-Builder further warrants that it has not assigned and will not assign any copyrights and that it has not granted and will not grant any licenses, exclusive or non-exclusive, to any other party, and that it is not a party to any other agreements or subject to any other restrictions with respect to the Deliverables. Design-Builder warrants and represents that the Deliverables are complete, entire and comprehensive, and that the Deliverables constitute a work of original authorship.
USE OF DELIVERABLES IN EVENT OF TERMINATION
In the event of a termination of this Agreement for cause, the City shall have the right to use, to reproduce, and to make derivative works of the Deliverables to complete the Project, regardless of whether there has been a transfer of copyright. Design-Builder shall not be responsible for any design services performed or deliverables created by another architect/engineer after that date of such termination.
CITY'S USE OF DELIVERABLES AFTER COMPLETION OF PROJECT
As owner of the Deliverables and copyright subsisting therein, the City may reuse, reproduce or make derivative works from the Deliverables.
DELIVERABLES RIGHTS OF USE
The Design-Builder shall obtain from its Architect/Engineer, Subcontractors and consultants rights and rights of use that correspond to the rights given by the Design-Builder to the City in this Agreement, and the Design-Builder shall provide evidence that such rights have been secured.
3.03 ADDITIONAL DESIGN-BUILDER RESPONSIBILITIES
INTENTIONALLY OMITTED.
INTENTIONALLY OMITTED .
INTENTIONALLY OMITTED .
12
JPSTC' Design- Build Agreement
3.3.4 COST REPOR TING
The Design-Builder shall keep such full and detailed accounts as are necessary for proper financial management under this Agreement. The Design-Builder shall maintain a complete set of all books and records prepared or used by the Design-Builder with respect to each portion of the Project, including all subcontractor bidding documents and Design-Builder's bid analysis. The Design-Builder's records supporting its performance and billings under this Agreement shall be current, complete and accurate and maintained according to generally accepted accounting principles. The City shall be afforded reasonable access during normal business hours and as necessary to all the Design-Builder's records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda and similar data relating to this Agreement. The Design-Builder shall present all such records for a period of seven years after the final payment or longer where required by law.
DUE DILIGENCE
The Design-Builder represents and warrants that it will thoroughly investigate the conditions as well as thoroughly review all relevant documentation provided by the City relating to the site conditions. The results of Design-Builder's investigation, including the testing performed as required during the Design Phase, and review of existing documentation have been taken into account in establishing the Guaranteed Maximum Price. Based upon the foregoing inspections, understandings, agreements and acknowledgments, Design-Builder agrees that: (i) the Guaranteed Maximum Price will be just and reasonable compensation for all the Work, including all reasonably foreseen and foreseeable risks, hazards, and difficulties in connection therewith; (ii) the Contract Time is adequate for the performance ofthe Work; and (iii) the Work shall not result in any unintended lateral or vertical movement of any existing structure. The Design-Builder shall have no claims for surface or subsurface conditions except as expressly described in this Agreement. The Design-Builder shall exercise special care in executing Work in proximity of known utilities, improvements and easements. Therefore, and notwithstanding any terms in the Agreement to the contrary, Design-Builder shall not make or be entitled to any claim for any adjustment to the schedule or GMP arising from Project conditions that Design-Builder, in the exercise of the standard of care set forth in this Agreement, should have discovered in Design Builder's investigation during the Design Phase.
ERRORS OR OMISSIONS
In addition to any other obligation of Design-Builder set forth in this Agreement, Design-Builder shall be responsible for all costs, including the cost of redoing or remedying the Work and time delays, resulting from any error or omission in the Design Documents.
3.04 CONSTRUCTION SERVICES
CONSTRUCTION PHASE COMMENCEMENT
The Construction Phase will commence upon the issuance by the City of a written notice to proceed with Construction Services. If the Commissioner issues a Notice to Proceed, the Design-Builder, within 30 days of receipt, shall provide the City with fully executed copies of the documents in Exhibit 9A and Exhibit 9B, including the performance and payment bond and proof of insurance for the Construction Phase. Failure to provide such documents within this timeframe shall be an event of default.
CONST RUCTION TERMS AND CONDITIONS
3.4.2.1 All Construction Services shall be performed in accordance with the Construction Terms and Conditions, attached as Exhibit 19 and incorporated by reference herein, unless otherwise superseded by the established Order of Precedence. Construction Services shall also include the following tasks:
13
JPSTC Design- Build Agreement
installation of props and equipment provided by the City, user training for any building systems, and all documentation and services necessary to obtain LEED certifications.
In order to complete the Work, the Design-Builder shall provide all necessary construction full-time supervision, inspection, construction equipment, labor, materials, tools and subcontracted items.
The Design-Builder shall give all notices and comply with all laws and ordinances legally enacted at the date of execution ofthe Agreement and thereafter that govern the proper performance of the Work.
The Design-Builder shall obtain the building permits necessary for the construction ofthe Project. Project construction activities will be exempt from City of Chicago building permit and street closure fees; however, all Work must still abide by all City permitting processes and requirements.
The Design-Builder shall provide periodic written reports to the City on the progress ofthe Work in such detail as is required by the City and as agreed to by the City and the Design-Builder.
The Design-Builder shall develop a system of cost reporting for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes in the Work. The reports shall be inclusive ofthe Design Services and Third-Party Reimbursable costs incurred prior to award. Such reports must be presented to the City at mutually agreeable intervals.
The Design-Builder shall regularly remove and legally dispose debris and waste materials at the Worksite resulting from the Work. Prior lo discontinuing Work in an area, the Design-Builder shall clean the area, keep the area safe, and remove all rubbish and its construction equipment, tools, machinery, waste and surplus materials. The Design-Builder shall minimize and confine dust and debris resulting from construction activities. At the completion ofthe Work, the Design-Builder shall remove from the Worksite all construction equipment, tools, surplus materials, and legally dispose of waste materials and debris.
AS-BUILT DOCUMENTS
The Design-Builder shall prepare and submit to the City final marked-up as-built drawings, any modelings, and updated electronic data in general documenting how the various elements of the Work including changes were actually constructed or installed.
WATER AND UTILITIES
Water and utilities' usage shall be paid for in the first instance by Contractor and reimbursed by Owner as part of the General Requirements when utilized as temporary utilities but, at Contractor's option, when Contractor has caused the meters to be energized and active, the water and utilities, or any of them, will be converted to permanent utilities, which shall then be paid directly to the utility by Owner. Owner is responsible to pay all connection and excess facilities charges.
CONSTRUCTION MEANS AND METHODS
Design-Builder is solely responsible for the means, methods, techniques, sequences and procedures of construction within the parameters set forth by this Agreement. Nothing in this Section 3.4.5 shall be deemed to limit the Design-Builder's obligations to provide the City access to all Work as provided in other Sections of this Agreement, nor shall the City's observation ofthe Work be construed to relieve
JPSTC Design- Build Agreement
the Design-Builder of its obligation to correct Defective Work if defects are discovered after an observation.
3.05 SCHEDULE OF WORK
BASELINE SCHEDULE OF WORK
The baseline Schedule of Work is established and incorporated into the Project Schedule upon City acceptance ofthe schedule provided by the Design-Builder prior to issuance ofthe Construction Phase Notice to Proceed. The Design-Builder shall commence to perform the Work in accordance with the accepted Schedule of Work. The City's acceptance of the Schedule of Work shall in no way limit or otherwise attenuate the Design-Builder's complete responsibility and liability for the accuracy and reasonableness ofthe Schedule of Work. The City will have no obligation to process or issue any request for payment during the Construction Phase ofthe Work without an accepted Schedule of Work.
PROGRESS SCHEDULES
Each month during the term of this Agreement, the Design-Builder shall submit a revised and updated Progress Schedule demonstrating the progress of the Work relative to the baseline Schedule of Work. A Progress Schedule must be submitted with each request for payment, and the data contained in the Progress Schedule must coincide with the infonnation stated in the request for payment. Each Progress Schedule must accurately reflect the actual progress of the Work, as well as any revisions to the logic, sequence, durations of work activities or level of detail of the number, description or division ofthe Work activities. The City may refrain from processing a request for payment or issuing payment if the Design-Builder fails to provide an accurate Progress Schedule with the request for payment.
CHANGES TO THE SCHEDULE OF WORK
If a Progress Schedule indicates that the achievement of a contract milestone or completion ofthe Work is not within the parameters established by the baseline Schedule of Work, the Design-Builder must submit a recovery plan that will restore the parameters of the baseline Schedule within 48 hours. In the event that the Design-Builder believes that a change to the baseline Schedule of Work is required, the Design-Builder shall request such a change pursuant to the requirements of Article 9 of this Agreement.
3.06 SAFETY
SAFETY PRECAUTIONS AND PROGRAMS
The Design-Builder shall have overall responsibility for safety precautions and programs in its performance under this Agreement. While the provisions of this Paragraph establish the responsibility for safety between the City and the Design-Builder, they do not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with the provisions of applicable laws and regulations.
SAFETY OF PERSONS AND PROPERTY
The Design-Builder shall seek to avoid injury, loss or damage to persons or property by taking reasonable steps to protect:
its employees and other persons at the Worksite, including City personnel and City consultants;
materials, supplies and equipment stored at the Worksite for use in performance ofthe Work; and
the Project and all property located at the Worksite and adjacent to work areas, whether or not said property or structures are part ofthe Project or involved in the Work.
15
JPSTC Design- Build Agreement
3.6.3 DESIGN-BUILDER'S SAFETY REPRESENTATIVE
The Design-Builder shall designate an individual at the Worksite in the employ ofthe Design-Builder who shall act as the Design-Builder's designated safety representative with a duty to prevent accidents. The Design-Builder will report immediately in writing all accidents and injuries occurring at the Worksite to the City. When the Design-Builder is required to file an accident report with a public authority, the Design-Builder shall furnish a copy ofthe report to the City.
SAFETY NOTICES AND MANUALS
The Design-Builder shall provide the City with copies of all notices required ofthe Design-Builder by law or regulation. T he Design-Builder's safety program shall comply with the requirements of all governmental authorities having jurisdiction over the Work. The Design-Builder shall at all times keep a copy ofthe safety manual on site.
DAMAGE OR LOSS REMEDIES
Damage or loss not insured under property insurance which may arise from performance under this Agreement, to the extent ofthe negligence attributed to such acts or omissions ofthe Design-Builder, or anyone for whose acts the Design-Builder may be liable, or any third party, shall be promptly remedied by the Design-Builder. Damage or loss attributable to the acts or omissions of the City and not to the Design-Builder shall be promptly remedied by the City; provided, however, that the City may direct the Design-Builder to remedy such damage or loss, and the City shall pay for such remedy as a Cost ofthe Work.
UNSAFE CONDITIONS
If the City deems any part ofthe Work or Worksite unsafe, the City, without assuming responsibility for the Design-Builder's safety program, may require the Design-Builder to stop performance or take corrective measures satisfactory to the City, or both. If the Design-Builder does not adopt corrective measures, the City may perform them and reduce by the costs of the corrective measures the amount of the GMP, or in the absence of a GMP, the Cost of the Work as provided in Article 8. The Design-Builder agrees to make no claim for damages, for an increase in the GMP, compensation for Design services, the Design-Builder's Fee or the Date of Substantial Completion or the Date of Final Completion based on the Design-Builder's compliance with the City's reasonable request.
SECURITY
Design-Builder shall provide security for the Worksites at all times when under the control of Design-Builder.
TERM OF SAFETY PROVISIONS
The terms of this Paragraph 3.6 shall survive the completion of the Work under this Agreement or any termination of this Agreement.
3.07 HAZARDOUS MATERIALS
3.7.1 DEFINITION
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 or clean-up.
16
JPSTC Design- Build Agreement
REPORTING
IE alter the commencement ofthe Work, Hazardous Material is discovered at the Project Worksite, then the Design-Builder must immediately stop Work in the affected area. The Design-Builder shall immediately report the condition lo the City and, if required, the government agency with jurisdiction.
WORK
The Design-Builder shall not be required to perform any Work relating to or in the area of Hazardous Material without written mutual agreement.
TESTING AND CORRECTIVE MEASURES
The City shall be responsible for retaining an independent testing laboratory to determine the nature of the material encountered and whether it is a Hazardous Material requiring corrective measures or remedial action. Such corrective measures or remedial action shall be the sole responsibility ofthe City. The Design-Builder shall resume Work in the area affected by any Hazardous Material without delay upon written agreement between the Parties after the Hazardous Material has been removed or rendered harmless and only after approval, if necessary, of the governmental agency or agencies with jurisdiction.
3.75 COSTS OR DELAYS
If the Design-Builder incurs additional costs or is delayed due to the presence or remediation of Hazardous Material, upon City's approval, the Design-Builder shall be entitled to an equitable adjustment in the GMP, or the Project Schedule, or both, as applicable.
MATERIAL SAFETY DATA (MSD) SHEETS
As required by law and pertaining to materials or substances used or consumed in the performance of the Work, whether obtained by the Design-Builder, Subcontractors, the City or Others, Material Safety Data (MSD) sheets shall be maintained at the Project by the Design-Builder and made available to the City and Subcontractors.
MATERIAL HANDLING AND DOCUMENTATION
During the Design-Builder's performance of the Work, the Design-Builder shall be responsible for the proper handling, and relevant documentation, of all materials brought to the Worksite by the Design-Builder. Upon issuance ofthe Certificate of Substantial or Final Completion, the City shall be responsible under this Paragraph for materials and substances brought to the site by the Design-Builder if such materials or substances are required by the Contract Documents.
MONITORING
The City shall be responsible the hiring and costs of a third-party monitoring company to monitor the proper handling of contaminated material, if the City determines to so engage a third-party monitoring company.
PRIOR LIABILITY
Nothing in this Agreement shall be construed or interpreted as requiring Design-Builder to assume the status of, and the City acknowledges that Design-Builder does not act in the capacity nor assume the status of, the City or others as a "generator," "operator," "transporter," or "arranger" in the treatment, storage, disposal, or transportation of any hazardous substance or waste, that may exist at the Effective Dale ofthe Agreement, as those terms are understood within the meaning ofthe Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), or any other similar federal, state, or local law. regulation, or ordinance. The Design-
17
JPSTC Design- Build Agreement
Builder (including, for clarification, each joint venture member) represents that il has played no part in the generation or creation of any hazardous waste, pollution condition, nuisance, or chemical or industrial disposal problem, if any, that may exist at the time of commencement ofthe Agreement at the Project site, and, conditioned upon that representation, Design-Builder assumes no liability for any such generation or creation of any hazardous waste, pollution condition, nuisance, or chemical or industrial disposal problem, that may exist at the time of commencement ofthe Agreement at the Project site.
HANDLING LIABILITY
In the event Design-Builder, or its agents, contractors, employees, or subcontractors ("Associated Party(ies)"), removes, transports or disposes of any hazardous substance or other waste for which the City is the "Generator", the City agrees to authorize Design-Builder or its appropriate Associated Party(ies) to perform Generator duties on behalf of the City with respect to such waste, including but not limited to completing and signing, on behalf of City, the following types of documents on the basis of Design-Builder's or its appropriate Associated Party(ies)'s personal knowledge ofthe information slated in such documents: (1) Uniform Hazardous Waste Manifests, (2) waste profile sheets, and (3) generator's certifications of non-special waste. Prior to executing or filing any manifest or waste profile sheet on behalf of the City, Design-Builder or its appropriate Associated Party(ies) shall notify the City and provide the draft manifest, the waste profile sheet, and supporting documentation, including waste characterization, to the City for its review and approval.
HANDLING RESPONSIBILITY
Design-Builder shall be, and shall ensure that its Associated Parties are, responsible for the proper removal, transportation and disposal of all hazardous substance or other waste generated by Design-Builder or its Associated Parties, or resulting from Design-Builder's own operations or activities on the Site, including those activities and operations conducted by its Associated Parties. In such cases, in the event a signature as "Generator" is required on waste manifests, waste profile sheets or generator's certifications of non-special waste, Design-Builder shall ensure that either Design-Builder or its appropriate Associated Party(ies) signs such documents.
3.08 WARRANTIES AND COMPLETION
3.8.1 GENERAL WARRANTIES
The Design-Builder warrants that (i) all materials and equipment furnished under the Agreement will be new unless otherwise specified, of good quality, in conformance with the Agreement and the Contract Documents, free from defective workmanship and materials (ii) subject to more stringent standards set forth elsewhere in the Agreement, the Work provided hereunder shall be performed in a good and workmanlike manner by workers who are appropriately trained and experienced in the work being performed, in accordance with the Contract Documents (iii) subject to more stringent standards set forth elsewhere in the Agreement, all services required by this Agreement, including the Design Services and Construction Services, will be performed with that degree of skill, care and diligence consistent with the professional standards for services of comparable scope and magnitude. City's review or approval of any plans, specifications, or other instruments of professional service shall not constitute a waiver by City of any of Design-Builder's warranties or obligations under this paragraph.
3.8.2 MANUFACTURER'S WARRANTIES
Design-Builder must collect all manufacturer's warranties and equipment manuals and deliver them to the City, and must (i) ensure that all required Manufacturer's Warranties pass through to the City and the Department; (ii) submit all applicable manufacturers' warranties to the Commissioner and ensure that all warranty forms have been completed in the Department's name and registered with the appropriate
18
JPSTC Design- Build Agreement
manufacturers. To the extent products, equipment, systems or materials incorporated in the Work are furnished by the City, they shall be covered exclusively by the vvarranty ofthe manufacturer.
WARRANTY RESPONSIBILITIES
If, within one year after the Warranty Commencement Date, any ofthe Work is found to be not in accordance with the Contract Documents or nonconforming with the above warranties, the City shall give the Design-Builder prompt written notice describing the nonconformity. Upon receipt of such notice, the Design-Builder, at its cost, will promptly repair, replace, or re-perform such Work, services, or materials and equipment, and any other portion ofthe Work affected, as necessary to remedy such nonconformity. This obligation under this Section 3.8.3 shall survive acceptance ofthe Work and termination of the Agreement. The warranties above exclude remedy for damage or defect caused by abuse, modifications not executed by Design-Builder, improper or insufficient maintenance, improper operation, or normal wear and tear (relative to the intended purpose of the Project). Nothing contained in this Paragraph 3.8.3 shall be construed to establish a period of limitation with respect to other obligations which the Design-Builder might have under the Contract Documents or under the law, including a claim for breach of the warranties in Section 3.8.1. Establishment ofthe time period of one year as described in Subsection 3.8.3 relates only to the specific obligation ofthe Design-Builder to correct the Work during the one-year period, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the lime within which proceedings may be commenced to establish the Design-Builder's liability with respect to the Design-Builder's obligations other than specifically to remedy the Work under this Subsection 3.8.3.
WARRANTY COMMENCEMENT
All warranties, including the manufacturers warranties, shall begin on Warranty Commencement Date.
TESTING AND INSPECTION CERTIFICATIONS
The Design-Builder shall secure any and all required certificates of inspection, testing, balancing or approval and deliver them to the City.
START-UP
The Design-Builder shall direct the City in checkout of utilities and start-up operations, and adjusting and balancing of systems and equipment for readiness.
AS-BUILT DOCUMENTS
The Design-Builder shall maintain at the site As-Built Documents comprised of one copy ofthe Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to accurately reflect all as-built conditions including, but not limited to, all locations of utilities as actually installed, and all changes to the Work. The As-Built Documents shall be available to the City at all times. All As-Built Documents shall be delivered to the City for review and acceptance upon completion of the Work, signed by the Design-Builder to certify that they show complete and exact as-built conditions, stating dimensions, sizes, kinds of materials and similar matters (including, but not limited to, piping and conduit locations). The Design-Builder is responsible for all damages to the City arising directly from the Design-Builder's failure to maintain complete and accurate As-Built Documents.
RECORD DOCUMENTS
Upon completion ofthe Work, the Design-Builder shall prepare a complete set of Record Documents and deliver them to the City for review and acceptance. The Record Drawings shall be signed and stamped by the Design-Builder's Architect/Emgineer to certify that they show complete and exact as-
19
JPSTC Design- Build Agreement
built conditions, stating dimensions, sizes, kinds of materials and similar matters (including, but not limited to, piping and conduit locations). The Design-Builder is responsible for any and all damages lo the City arising directly from the Design-Builder's failure to maintain complete and accurate Record Documents.
CONFIDENTIALITY
The Design-Builder shall treat as confidential and not disclose to third persons, except Subcontractors, and the Architect/Engineer as is necessary for the performance under the Agreement, or use for its own benefit any ofthe City's developments, confidential information, know-how. discoveries, production methods and the like that may be disclosed to the Design-Builder or which the Design-Builder may acquire in connection with the performance under the Agreement. The City and the Design-Builder shall each specify those items to be treated as confidential and shall mark them as "Confidential." Notwithstanding the foregoing, the Parties acknowledge and agree that the City is a unit of local government, and as such is subject to the Illinois Freedom of Information Act. Confidential information shall not include: (a) information which at the time of disclosure is or thereafter becomes generally available to the public; (b) written information which was in the Party's possession prior to disclosure hereunder and which was not acquired under an obligation of confidentiality directly or indirectly from the disclosing Party; (c) information received by the Party after the time of disclosure hereunder from a third party without notice to the Party of any obligation of confidentiality or other restrictions with respect to use thereof.
Design-Builder will not issue any publicity, news releases or grant press interviews, and, except as may be required by law during or after the performance of this Agreement, disseminate any information regarding its Work or the Project to which the Work pertains without the prior written consent ofthe City.
If Design-Builder is presented with a request for documents by any administrative agency, or with a subpoena duces tecum regarding any records, data or documents which may be in Design-Builder's possession by reason of this Agreement, Design-Builder shall immediately give notice to the City and its legal counsel with the understanding that the City will have the opportunity to contest such process by any means available to it before the records or documents are released to a court or other third party. Design-Builder is not, however, obligated to withhold the delivery beyond the time ordered by the court or administrative agency unless the subpoena or request is quashed, or the time to produce is otherwise extended.
STANDARD OF CARE 3.10.1 SKILL, CARE AND DILIGENCE
Design-Builder must perform all services or work required of it under this Agreement with that degree of skill, care and diligence normally shown by a Design-Builder performing services or work of a scope and purpose and magnitude comparable with the nature ofthe Design Services and Construction Services to be provided under this Agreement. Design-Builder acknowledges that it is entrusted with or has access to valuable and confidential information and records ofthe City, and with respect to that information, Consultant agrees lo be held to the standard of care of a fiduciary. Any review, approval or acceptance of services or work or Deliverables, or payment for any ofthe services or work, by the City docs not relieve Design-Builder of its responsibility for the professional skill and care and technical accuracy of its services and work and Deliverables.
20
JPSTC Design- Build Agreement
PROFESSIONAL AND TECHNICAL ACCURACY
Design-Builder is and remains responsible tor the professional and technical accuracy of all services or Deliverables furnished, whether by Design-Builder, the Architect Engineer, or others on its or their behalf. All Deliverables must be prepared in a form and content satisfactory lo the City and delivered in a timely manner consistent with the requirements of this Agreement. Subsequent editions of design Deliverables, including drawings and specifications, shall supersede earlier editions, provided that any items that have changed on the design Deliverables are explicitly noted. Subsequent design Deliverables shall represent further development ofthe design Deliverables they supersede and shall not change or omit previously approved features or elements unless such differences or deviations are: (i) explicitly noted and identified in writing on the Deliverable, and (ii) expressly and unambiguously accepted by the City in writing. The City's inadvertent approval of a design Deliverable that contains an unapproved difference or deviation from any requirement of this Agreement shall not be construed as a waiver of such requirement.
LICENSED PROFESSIONALS
Design-Builder shall, consistent with the Illinois Architecture Practice Act of 1989, 225 ILCS 305 et seq., and other applicable state licensing laws, provide through qualified, licensed design professionals employed by Design-Builder, or procured from qualified independent licensed design professionals, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Design-Builder must assure that all services that require the exercise of professional skills or judgment are accomplished by professionals qualified and competent in the applicable discipline and appropriately licensed, if required by law. Design-Builder must provide copies of any such licenses to the City upon request.
CITY AS BENEFICIARY
Any or all agreements between the Design-Builder and the Architect Engineer shall provide that the City is a third-party beneficiary of such agreement, and shall provide further that the City shall have a direct right and cause of action against the Architect Engineer for any error or omission by the Architect Engineer in the performance of the design services ofthe Work.
REVIEW OF DESIGN DOCUMENTS AND FIELD CONDITIONS BY DESIGN-BUILDER
3.11.1 COMPLETENESS OF DESIGN DOCUMENT
Design-Builder warrants that the Design Documents, upon approval and acceptance by the City, shall be sufficient to enable the Design-Builder to complete the Work as shown in the Design Documents or, if not specifically shown, to perform the activities which may be reasonably inferred as necessary for completion of the Work in accordance with the requisite time frame, applicable laws, statutes, building codes, regulations and requirements ofthe Design Documents and this Agreement.
PROJECT PROCEDURES
Except as may be expressly provided otherwise in the Contract, Design-Builder is solely responsible for selecting the means, methods, techniques, sequences, and procedures used in performing the Work. The City has the right to inspect the Work as more fully set forth in Section 3.4. Design-Builder must perform all activities that may be required or.necessary to complete the Work in accordance with the Contract Documents. For the GMP, Design-Builder must construct, furnish and install all materials, parts and labor necessary to complete the entire Work.
21
JPSTC Design- Build Agreement
DESIGN-BUILDER'S STAFFING/KEY PERSONNEL
STAFFING
Immediately upon execution of this Agreement, Design-Builder will assign and maintain throughout the term ofthe Agreement an adequate staff of competent personnel who are fully equipped, licensed as appropriate, available as needed, qualified and assigned to perform the Work.
KEY PERSONNEL
Design-Builder's Key Personnel for the Work are listed in Exhibit 8, including Key Personnel's position within a chart ofthe Design-Builder's organization, also included in Exhibit 8 . Design-Builder shall provide email and mobile phone contact information for each person included as Key Personnel. In the event that any such Key Personnel are unable to continue to perform Work, the Design-Builder will provide prompt written notification to the City. Any change or substitution with respect to Key Personnel requires the approval of the City. In the event that, in the opinion ofthe Commissioner of 2FM, the performance of Key Personnel or any of Design-Builder's staff assigned to the Work, is at an unacceptable level, Design-Builder will remove them from the Project upon written notice from the City, and will provide a replacement for the City's approval within five Days of receipt of the notice to remove.
RIGHT OF ENTRY
The Design-Builder and any of its officers, employees, agents, subconsultants and subcontractors will be permitted to enter upon any part ofthe Project Worksite in connection with the performance ofthe Work hereunder, subject to the terms and conditions contained herein and those rules established by the City. City's consent to enter upon all or any part of the Project Worksite will not create nor be deemed to imply the creation of any additional responsibilities on the part of the City.
The Design-Builder will use, and will cause each of its officers, employees, agents, subconsultants and subcontractors to use reasonable care, unless otherwise expressly set forth in this Agreement, when entering upon the Project Worksite in connection with the Work. The Design-Builder will comply and will cause each of its officers, employees, agents, subconsultants and subcontractors to comply with any and all instructions and requirements for the use ofthe Project Worksite, and any express licenses for such use are hereby incorporated by reference. Any and all claims, suits, judgments, costs, or expenses, including reasonable attorneys' fees, arising from or by reason of or in connection with any such entry will be treated in accordance with the applicable terms and conditions ofthe Agreement, including, without limitation, the indemnification provisions contained in this Agreement. If the Design-Builder, or anyone for whom it is responsible, causes damage to City property, or the property of the owner of the Project Worksite, the Design-Builder must, at the option ofthe City, either 1) pay the cost of repair of the damage or 2) repair or replace the damaged property. The City shall have the right of set-off against the payments to the Design-Builder for the cost of repairs.
DESIGN-BUILDER'S REPRESENTATIVE
The Design-Builder shall designate a person who shall be the Design-Builder's authorized
representative. The Design-Builder's Representative is .
22
JPSTC.' Design- Build Agreement
MINORI TY AND WOMEN'S BUSINESS ENTERPRISES COMMITMENT
In the performance of this Agreement, including the performance of services and the procurement and lease of materials or equipment, Design-Builder must abide by the Special Conditions Regarding MBE/WBE Commitment set forth in Exhibit 18. Notwithstanding any terms in this Agreement to the contrary. Design-Builder must submit Schedules C and D (in the form as set forth in Exhibit 18) as required in this Article 3 and Exhibit 9A, evidencing its compliance with this requirement, and such Schedules shall be a part of this Agreement, upon acceptance by the Chief Procurement Officer. In each updated submission of Schedule D, Design-Builder shall clearly identify the revisions it proposes to make to previously submitted Schedules D. Design-Builder is directed to Chicago Municipal Code Section 2-92-740 in the event of failure to make good faith efforts to meet MBE/WBE commitments.
3.17 CHICAGO AND PROJECT AREA RESIDENT HIRING
For all Construction Services, Design-Builder will be required to comply with the minimum percentage of total worker hours performed by Eligible Residents ofthe City of Chicago as specified in MCC 2-92 330 and rules and regulations adopted thereunder, as further detailed in Exhibit 19.
50% ofthe total work hours must be performed by City Residents unless the City determines otherwise. Additionally, at least 15% of the total work hours must be performed by Project Area Residents unless the City determines otherwise.
The Design-Builder may request a reduction or waiver of these minimum percentage participation level of City Residents and Project Area Residents as provided for in MCC 2-92-330 in accordance with standards and procedures developed by the City's Chief Procurement Officer (CPO).
"Project Area Residents" means person domiciled within the following community areas: Austin, West Garfield Park, East Garfield Park, Humboldt Park, Lawndale, North Lawndale, Hermosa, Galewood-Mont Clare and Belmont/Cragin.
EQUAL EMPLOYMENT OPPORTUNITY
Pursuant to section MCC 2-92-390, the City has adopted goals for the employment of women and minorities on its construction contracts.
Design-Builder has committed to hiring minorities and women to perform a percentage ofthe aggregated work hours on the Project, as specified in Exhibit 17. The Design-Builder will be expected to achieve these participation commitments, unless otherwise granted a waiver. Design-Builder acknowledges that Design-Builder's failure to meet its specified utilization commitments will result in the liquidated damages being assessed as specified in Exhibit 17.
COMMUNITY ENGAGEMENT COMMITMENTS
Design-Builder has committed to undertaking the community outreach and engagement activities as set forth in Exhibit 17.
?
JPSTC Design- Build Agreement
ARTICLE 4 CITY'S RESPONSIBILITIES
4.01 INFORMATION AND SERVICES PROVIDED BY THE CITY
TIMELINESS
The City shall provide full information in a timely manner so as not to cause a delay regarding requirements for the Project, including the City's Program and other relevant information.
TYPES OF INFORMATION The City shall provide:
any available information, in its possession, describing the physical characteristics of the site, including surveys, site evaluations legal descriptions, existing conditions, subsurface and environmental studies, reports and investigations.
inspection, testing, and monitoring services during construction as required by law or as mutually agreed; and
unless otherwise provided in the Contract Documents, necessary approvals, site plan review, rezoning, easements and assessments, fees and charges required for the construction, use, occupancy or renovation of permanent structures, including legal and other required services.
4.1.3 RELIABILITY
The Design-Builder shall be entitled to rely on the completeness and accuracy ofthe information provided by the City set forth in those documents referenced in Exhibit 4, and the Design-Builder shall not be responsible for defects in its Work or services to the extent directly attributable to its reliance upon or use of such information; provided, however, that in the event the Design-Builder, in the exercise ofthe standard of care set forth in this Agreement, believes, has reason to believe, or finds that any of the information provided by the City in the documents referenced in Exhibit 4 are incomplete or inaccurate, Design-Builder shall: (i) provide the City with prompt notice of such incompleteness or inaccuracy; and (ii) with the concurrence of the City, undertake such investigations, testing and inspections as the Design-Builder deems reasonable and appropriate under the circumstances. Such investigations, testing and inspections shall be a Cost of the Work, and subject to competitive pricing obligations consistent with Section 5.01, provided that the Design-Builder has secured the concurrence of the City prior to the performance of such investigations, testing and/or inspections.
4.02 REVIEW RESPONSIBILITIES
The City will review and timely approve in writing so as not to cause delay, those Deliverables identified in the Project Schedule as requiring City review and approval. At a minimum, Deliverables requiring City review and written approval include schedules, Preliminary Estimate, Schematic Design Documents, Design Development Documents, Construction Documents, GMP Proposal and Schedule of Work.
4.2.1 TIMELY NOTIFICATIONS
If the City becomes aware of any error, omission or failure to meet the requirements ofthe Contract Documents or any fault or defect in the Work, the City shall give prompt written notice to the Design-Builder. The failure ofthe City to give such notice shall not relieve the Design-Builder of its obligations lo fulfill the requirements ofthe Contract Documents.
24
JPSTC" Design- Build A»reement
CITY'S REPRESENTATIVE
The City's Representative is . The Representative:
4.04 ELECTRONIC DOCUMENTS
If the City requires that the City and Design-Builder exchange documents and data in electronic or digital form, prior to any such exchange, the City and Design-Builder shall agree on a written protocol governing all such exchanges in a separate agreement, which, al a minimum, shall specify: (1) the definition of documents and data to be accepted in electronic or digital form or to be transmitted electronically or digitally; (2) management and coordination responsibilities; (3) necessary equipment, software and services; (4) acceptable formats, transmission methods and verification procedures; (5) methods for maintaining version control; (6) privacy and security requirements; and (7) storage and retrieval requirements. The Parties shall each bear their own costs for the requirements identified in the protocol. In the absence of a written protocol, use of documents and data in electronic or digital form shall be at the sole risk of the recipient.
ARTICLE 5 SUBCONTRACTS
Work not performed by the Design-Builder with its own forces shall be performed by Subcontractors or the Architect/Engineer.
RETAINING SUBCONTRACTORS
The Design-Builder will solicit and endeavor to obtain at least three competitive bids for any Construction Phase Work not performed by the Design-Builder ("Triple-Bid"). The Design-Builder shall make all Subcontractor bid documents and Design-Builder bid analysis available to the City, immediately upon request and as otherwise specified in the Agreement. In such case that the Design-Builder is unable to Triple-Bid any Work not performed by the Design-Builder, il shall document its good faith efforts and seek the City's written approval to retain its recommended subcontractor for such Work. The Design-Builder may select the subcontractors the Design-Builder determines offers the best overall value, which may not be the lowest bid. In such circumstances, the Design-Builder must provide written explanation lo City when lowest bid is not selected. The Design-Builder shall not retain any subcontractor that has been debarred by City from doing business with City, or any subcontractor to whom the City has a reasonable and timely objection. The Design-Builder shall not make any substitute for a subcontractor that has been accepted by the City without the written approval ofthe City.
MANAGEMENT OF SUBCONTRACTORS
The Design-Builder shall be responsible for the management of the Subcontractors in the performance of their work. The City will communicate with the Design-Builder regarding the Work, except that the City shall have the right to communicate directly with the Design-Builder's Subcontractors as the City deems reasonably necessary to address matters such as MBE and WBE issues, direct payments to Subcontractors, lien and surety matters, and other matters where such direct communication may reasonably be required.
25
JPSTC Design- Build Agreement
CONTINGENT ASSIGNMENT OF SUBCONTRACT
ASSIGNMENT TO CITY
If this Agreement is terminated for Design-Builder's default or in the event of an early termination, each subcontract agreement, upon exercise by the City of its right to assume such subcontract agreement, shall be assigned by the Design-Builder to the City, subject to the terms set forth in Section 12.3.2 and Exhibit 19 Construction Terms and Conditions.
SUBCONTRACTOR COMPENSATION
If the City accepts such assignment and the Work has been suspended for more than thirty (30) consecutive Days, following termination, if appropriate, the Subcontractor's compensation shall be equitably adjusted as a result of the suspension.
BINDING OF SUBCONTRACTORS AND MATERIAL SUPPLIERS
The Design-Builder agrees to bind every Subcontractor and material supplier (and require every Subcontractor to so bind its subcontractors and material suppliers) to all the provisions of this Agreement and the Contract Documents. In furtherance of efficient contract administration, the Design-Builder further agrees to take reasonable steps to inform and train Subcontractors with respect to the requirements of this Agreement and the Contract Documents, including those obligations
DESIGN-BUILDER'S LIABILITY FOR SUBCONTRACTORS
The Design-Builder is responsible for all Subcontractor Work and for all acts, failures to act, and omissions of its subcontractors. For the purposes of this Agreement, the Design-Builder's acts and omissions include those of its Subcontractors to the same extent as if they had been committed by the Design-Builder. Notwithstanding the foregoing, there is no privity between Subcontractors and the City. Except as set forth in Exhibit 18, "Special Conditions Regarding MBE and WBE Commitment," Subcontractors have no rights as third-party beneficiaries under this Agreement. However, all subcontracts of every tier shall state that the City is an intended third-party beneficiary of the subcontract.
BUY-OUT
When there are variances between actual awarded Subcontract sums versus estimated Subcontract sums, as provided in the Detailed Project Budget, the total of a positive net such variances will accrue to, and a total of a net negative variance will reduce, the Contingency line item on revised monthly sworn schedule of value statements, included as part of every pay application.
ARTICLE 6 TIME
6.01 DATE OF COMMENCEMENT
Upon the Effective Date, the Design-Builder shall commence the Design Services, and shall perform and complete the Design Services in accordance with the Project Schedule in Exhibit 6. Upon issuance of the notice to proceed to the Construction Phase, the Design-Builder shall commence the Construction Services, and shall proceed with and complete the Construction Services in accordance with the Project Schedule, as such schedule may be amended from lime to time, and except as otherwise provided in the Agreement.
26
JPSTC Design- Build Agreement
6.1.1 TIMELY INSURANCE
T he Design-Builder shall not commence the Work before the effective date of insurance that is required to be provided by the Design-Builder.
SUBSTANTIAL/FINAL COMPLETION
The Date of Substantial Completion or the Date of Final Completion shall be established in the Project Schedule in Exhibit 6, and subject to adjustments, as provided for in the Contract Documents.
6.2.1 TIME IS OF THE ESSENCE
Time is ofthe essence in this agreement and the time limits stated in the Contract Documents are of the essence.
DELAYS IN THE WORK
DELAYS BEYOND THE DESIGN-BUILDER'S CONT ROL
If the Design-Builder is delayed at any time in the commencement or progress ofthe Work by any cause beyond the control of the Design-Builder, the terms of Article 9 and Exhibit 19 Construction Terms and Conditions shall govern any relief to which Design-Builder may be entitled.
DELAY MITIGATION
In the event delays to the Project are encountered for any reason, the Parties agree to undertake reasonable steps to mitigate the effect of such delays.
6.04 LIQUIDATED DAMAGES
In addition to any liquidated damages specified in Exhibit 19 Construction Terms and Conditions, the liquidated damages arc specified below for delay in achieving Substantial Completion and Final Completion as specified in the Project Schedule.
6.4.1 SUBSTANTIAL COMPLETION
The Design-Builder agrees that if the Date of Substantial Completion established by the Parties, as may be amended by subsequent amendment, is not attained, the City will suffer damages which are difficult to determine and accurately specify. The Design-Builder agrees that if the Date of Substantial Completion is not attained, the Design-Builder shall pay the City, Three Thousand Dollars ($3,000) as liquidated damages and not as a penalty for each Day that Substantial Completion extends beyond the Date of Substantial Completion specified in the Project Schedule. .
6.4.2 FINAL COMPLETION
The Design-Builder agrees that if the Date of Final Completion established by the Parties, as may be amended by, is not attained, the City will suffer damages which are difficult to determine and accurately specify. The Design-Builder agrees that if the Date of Final Completion is not attained, the Design-Builder shall pay the City Three Thousand Dollars ($3,000) as liquidated damages and not as a penalty for each Day that Final Completion extends beyond the Date of Final Completion specified in the Project Schedule for the entire Project.
6.4.2.2 To the fullest extent permitted by law, Design-Builder's total liability lo the City for any liquidated damages for failure to achieve the Date of Final Completion shall not exceed [$300,000]:
27
JPS TC Design- Build Agreement
provided, however, that such cap on liquidated damages for failure to achieve Date of Final Completion will have no effect on the continuing obligation of Design-Builder lo pay liquidated damages for failure to achieve the Dates of Substantial Completion.
6.4.3 OTHER DAMAGES
Nothing contained in this Section is to be construed as limiting the right ofthe City to recover from Design-Builder all amounts due or to become due, and all costs and expenses sustained by the City for improper performance under this Agreement, repudiation ofthe Agreement, failure to begin work on the date of commencement, or failure to perform the Work with adequate forces, equipment or materials or other resources, or breaches in any other respect, including defective workmanship or materials. In addition to liquidated damages for failure to meet any milestones, Design-Builder is liable to the City for any other damages sustained as the result of Design-Builder's refusal or failure to perform the Work
6.05 CITY'S RIGHT TO OCCUPY PORTIONS OF THE WORK
PARTIAL OCCUPANCY
The City may occupy and use the Project, or portions thereof, in advance of Substantial Completion. If the City desires to exercise partial occupancy and use prior to Substantial Completion, the City shall provide written notice to the Design-Builder, and the Design-Builder shall cooperate with the City in making available for the City's use such Project services as heating, ventilating, cooling, water, lighting, Wi-Fi and telephone for space or spaces to be occupied, and if the equipment required to furnish such services is not entirely completed at the time the City desires to occupy and use the space or spaces, then the Design-Builder will make every reasonable effort to complete that Work.
IN THE EVENT OF OCCUPANCY PRIOR TO SUBSTANTIAL COMPLETION:
Within fourteen (14) days after receiving notice ofthe planned early occupancy, the Design-Builder will provide written notice to the City ofthe following: (i) the current condition ofthe space desired for early occupancy; (ii) the anticipated condition ofthe space at the date of anticipated early occupancy; (iii) a preliminary estimate of any potential additional costs, if any, as a direct or indirect result of the early occupancy; and (iv) a preliminary estimate of any potential impact to the Project Schedule, if any, as a result ofthe early occupancy.
If the early occupancy is necessitated by a delay in Substantial Completion beyond the scheduled date of Substantial Completion and is not the subject of a Change Order, Design-Builder shall be responsible for all additional costs associated with the preparation of the space for the early occupancy.
The following conditions will apply to the spaces and/or equipment that are affected by the City's early occupancy:
A punch list will be assembled by the City, Design-Builder and its subcontractors, and an inspection of the affected space by the City will be accomplished prior to the start of early occupancy.
. Warranties of systems that are common to both the occupied and unoccupied parts ofthe Project will begin to run at the Warranty Commencement Date.
Risk of loss associated with the finished Work which the City occupies early transfers lo the
28
JPSTC Design- Build Agreement
City at the .start ofthe early occupancy.
6.5.2.3.4 As part ofthe Change Order for early occupancy, the Parties will agree and set forth in writing the scope and date of early occupancy, and what effect early occupancy will have on Liquidated Damages and insurance coverage.
ARTICLE 7 |INTENTIONALLY OMITTED]
ARTICLE 8
COMPENSATION AND COST OF THE WORK
GUARANTEED MAXIMUM PRICE (GMP)
The GMP for the Project is $85,000,000. The City shall make payment to Design-Builder in accordance with the terms of this Agreement, including this Article 8, and as detailed in Exhibit 10A and Exhibit 10B, up to the amount ofthe respective GMP. The Design-Builder does not guarantee any specific line item provided as part of the GMP, but agrees that it will be responsible for costs of completing the Project that exceed the GMP (as adjusted in accordance with this Agreement).
COMPENSATION
8.2.1 DESIGN PHASE COMPENSATION
DESIGN SERVICES
The City shall compensate the Design-Builder for documented Design Services costs based on the hourly rates and terms provided in Exhibit 10A. Total compensation for Design Services shall not exceed 6.5% ofthe GMP. Design compensation shall be inclusive of all Design Services performed at any time during Project Schedule including any construction administration services performed by an architect or engineer.
Architect/Engineer. Compensation for the costs of Design Services performed directly by Design-Builder Architects/Engineers will be computed separately from other Design-Builder compensation for work or services, and these costs shall be shown as separate items on applications for payment. If an Architect/Engineer is retained by the Design-Builder, the payments to the third-party Architect/Engineer shall be as detailed in a separate agreement between the Design-Builder and the Architect/Engineer.
PRECONSTRUCTION SERVICES
The City shall compensate Design-Builder during the Design Phase for documented Preconstruction Services, as described in Exhibit 9B, up to a maximum amount of $500,000. Any Preconstruction Costs incurred by the Design-Builder in the performance of Preconstruction Services that exceed $500,000 are eligible for compensation by the City after issuance ofthe Notice to Proceed to the Construction Phase. ~ For clarification, except as described in this Section 8.2.1.2, Preconstruction Costs are subjecl to the terms of this Agreement applicable to, and are considered part of General Conditions costs.
Preconstruction Services shall include any site investigation services performed by third parties, as pre-approved by the City, such as surveying, geotechnical and environmental analysis services, and the City will reimburse Design Builder, without markup, for such costs. Reimbursement for the site investigation services are not deemed as compensation to Design-Builder, and are not, therefore, subject to any caps
29
JPSTC Desiiiii- Build Aureemenl
on Design-Builder compensation, however, the Parties acknowledge and agree that such site investigation expenditures are included within the GMP and are subject to Design-Builder's obligations set forth in Section 5.1.
8.2.2 CONSTRUCTION PHASE COMPENSATION
Generally. The City agrees lo pay the Design-Builder for the (i) Cost ofthe Work as de lined in Article 2, this Article, and Exhibit 7, and (ii) the Design-Builder's Fee applied to specified portions ofthe Cost ofthe Work as designated in Exhibit 10B, all completed and recorded in the monthly application for payment. Notwithstanding anything to the contrary in the Contract Documents, Design-Builder shall provide the Cost of the Work at rates that are not higher than those customarily paid at the place ofthe Project except with the specific and express prior written consent of City and any costs exceeding such rates shall not be part ofthe Cost of the Work.
Deposits. Unless otherwise approved in writing by the Commissioner, applications for payment may not include costs of deposits on materials and equipment. If City otherwise agrees to pay for a deposit that Design-Builder was required to place on material and equipment, approval of payment applications that include such deposits shall be conditioned on submission by the Design-Builder of a written acknowledgment from the manufacturer ofthe equipment or material that the deposit has been paid, or such other procedures satisfactory to the City to establish the proper payment ofthe deposit for which Design-Builder seeks payment. The applicable Design-Builder Fee, if any, on the equipment or material in issue will not be payable until the City makes payment for the balance of the cost ofthe equipment or material and receives ownership of such material or equipment.
8.03 CONTINGENCY ALLOWANCE
The GMP shall include a predetermined Contingency in an amount not exceeding $5,000,000, that is maintained to cover unforeseen or unpredictable Project costs. The Contingency shall be reflected in the itemized Detailed Project Budget that is initially submitted by the Design-Builder and approved by the City prior to issuance of the Notice to Proceed for Construction, and be used in accordance with this section. The Design-Builder shall not expend any Contingency funds for expenses not included in the Cost of the Work.
8.3.1 CONTINGENCY EXPENDITURES. Contingency funds may be accessed by either party to cover unforeseen or unpredictable costs that are necessary for the completion of the Project. The Contingency is established and maintained at mutually agreed to appropriate levels sized to Project risk factors. Any savings that are realized during the Construction Phase, such as actual costs being less than the budgeted costs ("Buyout Savings") shall accrue to the Contingency fund. The requirements for the use of Contingency funds are as follows:
CONTINGENCY EXPENDITURES OF $25,000 OR LESS Circumstances that require Contingency expenditures by the Design-Builder of less than $25,000 per issue shall be at the sole discretion of Design-Builder.
CONTINGENCY EXPENDITURESMORE TITAN $25,000 Design-Builder must obtain written approval from the City prior to the expenditure of any Contingency funds in excess of $25,000 per issue. City approval may not be unreasonably withheld.
UNFORESEEN EMERGENCIES If after making a good-faith effort to obtain prior City approval for Contingency expenditure in excess $25,000, Design-Builder determines, in its discretion, that an operational emergency requires that it incur the Contingency expense without obtaining prior City approval, Design-Builder may incur the expense without having first obtained City approval. Design-Builder shall, however, continue to make good faith efforts to obtain City approval. Examples of such emergencies are those that affect the safety of persons or property, or materially and imminently jeopardize the progress and successful delivery ofthe Project.
30
JPSTC Design- Build Agreement
CITY REQUESTED A D D - A LT E R NAT E S. At a mutually agreed upon construction schedule milestone when many ofthe Project unknowns and risks have been discovered and/or mitigated, the City may use a portion ofthe remaining Contingency balance for City-directed additions to Project scope ("Add-Alternate Work"). The Parties' intent, however, is to preserve a running Contingency balance sized lo reasonably insure the completion of the Project. Any Contingency funds in excess of mutually agreed to minimum Contingency may be considered for Add-Alternate Work. Such Add-Alternate Work shall be processed through an executed written Change Order that documents the scope, schedule and cost ofthe work. The Add-Alternate Work so added shall in no event increase the GMP. Any final remaining Contingency balance at completion of the Project shall be retained by the City.
CONTINGENCY REPORTING. The Design-Builder shall maintain an updated Contingency log that is a comprehensive list of all contingency expenditures, including: contemplated, approved, pending, or executed Contingency expenditures. Upon construction commencement the Design-Builder shall provide to the City a weekly written Contingency Report that contains a copy ofthe up to date Contingency log along with a narrative explanation and itemized documentation ofthe circumstances surrounding each and every executed or planned Contingency expenditure that occurred since the last Contingency Report. Design-Builder will provide the City detailed cost documentation in support of any or all Contingency expenses incurred, upon request by the City. The City reserves the right to reject Contingency allocations of any amount that lack actual cost documentation.
8.3.3.1 FAILURE TO REPORT CONTINGENCY USE In the event Design-Builder fails to notify City of the incurrence of Contingency expenses as required above, and, in any event, later than 14 days from the incurrence of the expense, the City, in its discretion, may determine to reject and disapprove the use of Contingency funds for any unreported expenditure, and the Design-Builder shall have no right to be compensated for such expenses. If the City disapproves of an expense upon being made aware of it beyond 14 days from its having been incurred, and if Design-Builder has since been compensated for the expenditure, the City shall have the right to offset future payments against such sum.
ARTICLE 9
CHANGES IN THE WORK
The Commissioner reserves the right to order, in writing, changes in the Design Documents, Work, or the Schedule without invalidating this Agreement and without prior notice to Design-Builder's surety. Design-Builder is obligated to perform in a timely manner the changed Work included in the'written notice from the Commissioner. These changes may consist of additions, deletions, or other revisions, at the discretion of the City. Changes in the Work may be accomplished, without invalidating this Agreement, by Change Order, Interim Directed Change, or a minor change in the Work, subject to the limitations slated in the Contract Documents.
9.01 CHANGE ORDER
9.1.1 The City, via a proposed Change Order and without invalidating this Agreement, may order changes during the Design Phase or the Construction Phase lo the Project Program of a material nature, to the Work, to the Schedule within the general scope ofthe Contract Documents consisting of additions, deletions or other revisions, or may reduce scope to achieve a reduced GMP; the GMP or the estimated Cost ofthe Work (and corresponding Design-Builder's Fee), compensation for Design Services, or the Date of Substantial Completion or the Date of Final Completion may be adjusted
31
JPSTC Design- Build Agreement
accordingly in accordance with this Article 9.
The Design-Builder may also request changes in the Work or Schedule or both via a Proposed Change Order, which may be submitted to the City in the case of (a) pre-existing, concealed conditions, which Design-Builder, in the exercise ofthe standard of care set forth in the Agreement, would not reasonably have been expected to discover during Design-Builder's investigation during the Design Phase (b) the presence of Hazardous Materials, (c) City directed changes as described in the preceding paragraph, or (d) delay, as further described below.
If the Design-Builder is delayed at any time in the commencement or progress ofthe Work by any cause beyond the control ofthe Design-Builder, none of which are due to any fault, neglect, act or omission on the part ofthe Design-Builder, the Design-Builder's relief shall be limited as described below:
If the Design-Builder is delayed during the Design Phase in the progress ofthe Work by fault, neglect, act or omission on the part ofthe City, the Design-Builder's relief shall be limited to an equitable extension ofthe schedule for completion ofthe Design Phase;
If the Design-Builder is delayed during the Construction Phase in the progress ofthe Work by fault, neglect, act or omission on the part of the City, the Design-Builder's relief shall be limited to (1) the City's reimbursement of Design-Builder's documented General Requirements Costs incurred during the delay time period. The General Requirements Costs eligible for reimbursement due to delay are those associated with securing or maintaining the Project site, but, for clarification, excluding the reimbursement for any Design-Builder personnel or other General Conditions Costs, and (2) an equitable extension of the Date of Substantial Completion or Date of Final Completion. Design-Builder shall not be entitled to charge its Design-Builder Fee in connection with the General Requirements Costs the City pays to Design-Builder pursuant to this paragraph.
If the Design-Builder is delayed during the Construction Phase in the commencement or progress of the Work by any cause not due to fault, neglect, act or omission on the part of the City, the Design-Builder's relief shall be limited to an equitable extension of the Date of Substantial Completion or the Date of Final Completion.
In all cases of delay, Design-Builder has a duty to make best efforts to mitigate the effect of any such cause. Causes beyond the control ofthe Design-Builder are limited to the following: acts or omissions ofthe City, including changes in the Work or the sequencing ofthe Work ordered by the City; transportation delays not reasonably foreseeable; labor disputes not involving the Design-Builder; general labor disputes impacting the Project but not specifically related to the Worksite; lire; Terrorism; epidemics; adverse governmental actions, adverse weather conditions, significantly more severe than the norm; encountering unforeseen Hazardous Materials; concealed or unknown conditions; or delay authorized by the City pending dispute resolution and suspension by the City under Paragraph 12.1. The Design-Builder shall process any requests for equitable extensions ofthe Date of Substantial Completion or the Date of Final Completion in accordance with the provisions of this Article 9 and Exhibit 19 Construction Terms and Condit ions. The extension of time and/or reimbursement of Design-Builder's General Requirements Costs, in the manner specified above, releases and discharges the City, its employees, officials, agents and representatives from all claims for damages of whatever character, including any claims you may make on account of disruption, changes in sequence, interference, inefficiency, direct or indirect cost or any other causes of delay.
JPSTC Design- Build Agreement
Any and all such changes described in Section 9.1.1 shall be authorized by applicable Change Order, and shall be performed under the applicable conditions ofthe Contract Documents. No such changes, whether by way of alteration or addition lo the Work, shall be the basis of an adjustment to the scope of the Work, the GMP or estimated Costs ofthe Work or Schedule, unless and until such alteration or addition has been authorized by a Change Order executed by the Commissioner and issued in strict compliance with the Contract Documents and Project Procedures. No course of conduct or dealings between the Parlies, nor express or implied acceptance of alterations or additions to the Work, and no claim that the City has been unjustly enriched by any alteration or addition to the Work, whether there is in fact or not any unjust enrichment to the Work, shall be the basis of any claim to an increase in the GMP or Schedule.
Each adjustment in the GMP or estimated Cost ofthe Work resulting from a Change Order shall clearly separate the amount attributable to compensation for Design Services, Cost of the Work (and corresponding Design-Builder's Fee).
The City and Design-Builder shall negotiate in good faith an appropriate adjustment to the scope of the Work, the GMP or the estimated Cost ofthe Work (and corresponding Design-Builder's Fee), compensation for Design Services, or the Date of Substantial Completion or the Date of Final Completion, and shall conclude these negotiations as expeditiously as possible. Acceptance of the Change Order and any adjustment in the GMP, the estimated Cost ofthe Work (and corresponding Design-Builder's Fee), compensation for Design Services, or the Date of Substantial Completion or the Date of Final Completion shall not be unreasonably withheld.
9.02 INTERIM DIRECTED CHANGE
The City may issue a written Interim Directed Change directing a Change in the Work prior to reaching agreement with the Design-Builder on the adjustment, if any, in the GMP, estimated Cost of the Work (and corresponding Design-Builder's Fee), the Date of Substantial Completion or the Date of Final Completion, and, if appropriate, the compensation for Design Services. Design-Builder must begin the changed Work upon receipt of such notice signed by the Commissioner.
The City and the Design-Builder shall negotiate expeditiously and in good faith for appropriate adjustments, as applicable, to the GMP, estimated Cost of the Work (and corresponding Design-Builder's Fee), the Date of Substantial Completion or the Date of Final Completion, and if appropriate the compensation for Design Services, arising out of Interim Directed Change. As the changed work is completed, the Design-Builder shall submit its costs for such work with the application for payment beginning with the next application for payment within thirty (30) Days of the issuance ofthe Interim Directed Change. Pending final determination of cost to the City, amounts not in dispute may be included in applications for payment and shall be paid by City.
When the City and the Design-Builder agree upon the adjustments in the GMP, estimated Cost of the Work (and corresponding Design-Builder's Fee), the Date of Substantial Completion or the Date of Final Completion, and if appropriate the compensation for Design Services, for a change in the Work directed by an Interim Directed Change, such agreement shall be the subject of an appropriate Change Order. The Change Order shall include all outstanding Interim Directive Changes issued since the last Change Order and be executed by the Parties.
JPSTC Design- Build Agreement
MINOR CHANGES IN T HE WORK
The City and the Design-Builder may make minor changes in the design and construction ofthe Project consistent with the intent ofthe Contract Documents which do not involve an adjustment in the GMP, estimated Cost ofthe Work, the Design-Builder's Fee, the Date of Substantial Completion or the Date of Final Completion, and do not materially and adversely affect the design ofthe Project, the Project Program, the quality of any ofthe materials or equipment specified in the Contract Documents, the performance of any materials, equipment or systems specified in the Contract Documents, or the quality of workmanship required by the Contract Documents.
The Design-Builder shall promptly inform the City in writing of any such changes and shall record such changes on the Design-Build Documents maintained by the Design-Builder.
[OMITTED]
DETERMINATION OF COST
9.5.1 An increase or decrease in the GMP or estimated Cost ofthe Work resulting from a change in the
Work shall be determined by one or more of the following methods:
unit prices set forth in this Agreement or as subsequently agreed;
a mutually accepted, itemized lump sum;
costs determined as defined Article 8; or
if an increase or decrease cannot be agreed to as set forth in Clauses 9.5.1.1 through
above, and the City issues an Interim Directed Change, the costs ofthe change in the Work shall be determined by the reasonable actual expense and savings of the performance of the Work resulting from the change. The Design-Builder shall maintain a documented, itemized accounting evidencing the expenses and savings.
If unit prices are indicated in the Contract Documents or are subsequently agreed to be the Parties, but the character or quantity of such unit items as originally contemplated is so different in a proposed Change Order that the original unit prices will cause substantial inequity to the City or the Design-Builder, such unit prices shall be equitably adjusted.
If the City and the Design-Builder disagree as to whether work required by the City is within the scope of the Work, the Design-Builder shall furnish the City with an estimate of the costs to perform the disputed work in accordance with the City's interpretations. If the City issues a written order for the Design-Builder to proceed, the Design-Builder shall perform the disputed work and the City shall pay the Design-Builder fifty percent (50%) of its actual, direct costs to perform the work. In such event, both Parties reserve their rights as to whether the work was within the scope of the Work. The City's payment does not prejudice its right to be reimbursed should it be determined that the disputed work was within the scope of Work. The Design-Builder's receipt of payment for the disputed work does not prejudice its right to receive full payment for the disputed work should it be determined that the disputed work is not within the scope ofthe Work.
9.06 CLAIMS FOR ADDITIONAL COST OR TIME For any claim for an increase in the
GMP, estimated Cost ofthe Work (and corresponding Design-Builder's Fee, if applicable), or the
34
JPSTC Design- Build Agreement
Date of Substantial Completion or the Date of final Completion, the Design-Builder shall give the City written notice ofthe claim within twenty-one (21) Days alter the occurrence giving rise to the claim or within twenty-one (21) Days after the Design-Builder first recognizes the condition giving rise to the claim, whichever is later. Except in an emergency, notice shall be given before proceeding with the Work. Claims for design and estimating costs incurred in connection with possible changes requested by the City, but which do not proceed, shall be made within twenty-one (21) Days after the decision is made not k> proceed. Thereafter, the Design-Builder shall submit written documentation of its claim, including appropriate supporting documentation, within twenty-one (21) Days after giving notice, unless the Parties mutually agree upon a longer period time. The City shall respond in writing denying or approving the Design-Builder's claim that explains its decision no later than fourteen (14) Days after receipt of the Design-Builder's documentation of claim. Any change in the GMP, estimated Cost ofthe Work (and corresponding Design-Builder's Fee), the Date of Substantial Completion or the Date of Final Completion and if appropriate the compensation for Design Services, resulting from such claim shall be authorized by Change Order.
EMERGENCIES If an emergency affecting the safety of persons or property, the Design-Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change
i in the GMP, estimated Cost of the Work (and corresponding Design-Builder's Fee), the Date of Substantial Completion or the Date of Final Completion, and if appropriate the compensation for Design Services, on account of emergency work shall be determined as provided imthis Article.
ITEMS THAT ARE NOT CHANGES TO THE WORK
It is understood and agreed that the Project and the Design Documents, as well as the Project Program, will be subject to further minor (as defined in Section 9.3.1) refinement, correction and detailing by the City and Design-Builder, and that the Design-Builder shall receive no additional compensation for any such minor refinement, correction or detailing that is contemplated to be a part of, or would reasonably be inferred to be a part of, the Work under this Agreement. Such minor refinements, corrections and detailing shall not constitute a change in the Work.
Notwithstanding anything in this Article 9 to the contrary, (i) no extension to the Schedule will be granted under this Article for a delay caused wholly or in part by any fault, negligent act, failure to act, error, omission or breach of a material term of this Agreement by the Design-Builder, the Architect/Engineer, design subconsultants, subcontractors or anyone else for whom the Design-Builder may be responsible; and (ii) no Change Order will be issued increasing the GMP or the Schedule in connection with any correction of errors, omissions, deficiencies or improper or Defective Work, including corrections in the Design Documents and Work to conform to applicable Building Code or other applicable laws, on the part ofthe Design-Builder, the Architect/Engineer, any design subconsultant, subcontractors or anyone else for whom the Design-Builder may be responsible in the performance ofthe Work.
JPS TC Design- Build Agreement
9.09 CHANGES IN LAW In ihe event any changes in laws or regulations materially affecting the performance ofthe Work are enacted after either the date of this Agreement or the dale a GMP Proposal is accepted by the City, whichever occurs later, the GMP, estimated Cost of the Work (and corresponding Design-Builders Fee), the Date of Substantial Completion or the Dale of Final Completion, and if appropriate the compensation for Design Services, shall be equitably adjusted by Change Order.
ARTICLE 10 PAYMENT FOR WORK
10.01 DESIGN SERVICES
Upon issuance of a Notice to Proceed with the Design Phase, as per Section 3.1.1, the Design-Builder must submit to the City regular monthly design services pay applications seeking compensation for labor and other direct costs incurred by the Design-Builder in providing the Design Services described in Section 3.01 and Exhibit 9A, and in accordance with the rates and terms set forth in Exhibit 10A and Exhibit 10B. The pay applications must contain sufficient detail and supporting documentation for City review and approval. City approval shall not be unreasonably withheld. The City will process payment within 60 days after receipt of all supporting invoices and documentation necessary for the City to verify the Services provided under this Agreement.
In the event that the City terminates the Agreement prior to completion of the Project pursuant to Section 12.06 ofthe Agreement, the City shall compensate the Design-Builder for performance of Design Services an amount not to exceed the lesser of: (a) Design-Builder's actual fees and costs, pursuant to the payment terms of the Agreement and in accordance with the rates set forth in Exhibit 10A; or (b) the sum equivalent to the percentage of Design Services completed, as calculated based on (i) the completion percentages associated with each component ofthe Design Services in Exhibit 9A Design Services, applied to (ii) the maximum fee provided for performance of Design Services under the Agreement (6.5% ofthe GMP). If the City terminates the Agreement under Section 12.06 prior to issuing a Notice to Proceed to the Design Phase, the City's obligation to compensate Design-Builder in accordance with this paragraph is further subject to a maximum cap of $200,000.
10.1.1 PRECONSTRUCTION SERVICES Design-Builder must submit monthly invoices in accordance with Exhibit 10B for the Preconstruction Services. During the Design Phase, notwithstanding that the Design-Builder submits invoices for Preconstruction Services, the City shall have no obligation to compensate the Design-Builder for such services in excess of $500,000, until the issuance ofthe notice to proceed to the Construction Phase, at which time the City shall compensate Design-Builder for performance ofthe Preconstruction Services pursuant to Section 10.2, below.
10.02 CONSTRUCTION SERVICES PROGRESS PAYMENTS
10.2.1 On the fifth Day of each month after the Construction Phase has commenced the Design-Builder shall submit to the City an application for payment consisting ofthe Cost of the Work performed up to the last Day ofthe preceding month, along with a proportionate share ofthe Design-Builder's Fee. Prior to submission ofthe next application for payment, the Design-Builder shall-furnish to the City a statement accounting for the disbursement of funds received under the previous application. The extent
36
JPSTC Design- Build Agreement
of such statement shall be as agreed upon between the City and the Design-Builder.
10.2.2 Within seven (7) Days after receipt of each monthly application for payment, the City shall give written notice to the Design-Builder of the City's acceptance or rejection, in whole or in part, of such application for payment. Applications for payment must include lien waivers in arrears and all workforce participation compliance reporting as required by the City before funds will be released. Within sixty (60) Days alter accepting such application, the City shall pay directly to the Design-Builder the appropriate amount for which application for payment is made, less amounts previously paid by the City. If such application is rejected in whole or in part, the City shall indicate the reasons for its rejection. If the City and the Design-Builder cannot agree on a revised amount then, within thirty (30) Days after its initial rejection in part of such application, the City shall pay directly to the Design-Builder the appropriate amount for those items not rejected by the City for which application for payment is made, less amounts previously paid by the City. Those items rejected by the City shall be due and payable when the reasons for the rejection have been removed.
The Design-Builder 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 City upon receipt of such payment by the Design-Builder, free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to as liens.
The City's progress payment, occupancy or use ofthe Project, whether in whole or in part, shall not be deemed an acceptance of any Work not conforming to the requirements ofthe Contract Documents.
Upon Substantial Completion of the Work, the City shall pay the Design-Builder the unpaid balance of the (i) Construction Phase services, (ii) Design Services (if any) and (iii) the Design-Builder's Fee, less one-hundred fifty percent (150%) of the cost of completing any unfinished items as agreed to between the City and the Design-Builder as to extent and time for completion. The City thereafter shall pay the Design-Builder monthly the amount retained for unfinished items as each item is completed.
NO PAYMENT FOR STORED MATERIALS AND EQUIPMENT Unless approved in writing by the Commissioner, applications for payment may not include costs for materials and equipment not yet incorporated into the Work but delivered to and suitably stored onsite or offsite, including applicable insurance, storage and costs incurred transporting the materials to an offsite storage facility. If City so agrees to pay for stored material and equipment, approval of payment applications for stored materials and equipment stored onsite or offsite shall be conditioned on submission by the Design-Builder of bills of sale and proof of required insurance, or such other procedures satisfactory to the City to establish the proper valuation and protection ofthe stored materials and equipment, the City's title to such materials and equipment, and to otherwise protect the City's interests therein including transportation to the site.
RETAINAGE No retainage shall be withheld by the City. As a matter of prompt payment to subcontractors as required by Section XIII.E of Exhibit 19. Design-Builder must not withhold retainage from Subcontractors in any form, including but not limited to administrative fees.
ADJUSTMENT OF DESIGN-BUILDER'S APPLICATION FOR PAYMENT The City may adjust or reject an application for payment or nullify a previously approved Design-Builder application for payment, in whole or in part, as may reasonably be necessary to protect the City from
37
JPSTC Desimi- Build Aiiieemenl
loss or damage based upon the following, to the extent that the Design-Builder is responsible under this Agreement for any ofthe following:
the Design-Builder's failure to perform the Work as required by the Contract Documents;
loss or damage arising out of or relating to this Agreement and caused by the Design-Builder lo the City or others to whom the City may be liable:
the Design-Builder's failure to properly pay the Architect/Engineer, Subcontractors or material suppliers for labor, materials, equipment or supplies furnished in connection with the Work, provided that the City is making payments to the Design-Builder in accordance with the terms of this Agreement;
Defective Work not corrected in a timely fashion;
reasonable evidence of delay in performance of the Work such that the Work will not be completed by the Date of Substantial Completion or the Date of Final Completion, and that the unpaid balance of the GMP is not sufficient to offset any direct damages that may be sustained by the City as a result of the anticipated delay caused by the Design-Builder; and
reasonable evidence demonstrating that the unpaid balance of the GMP is insufficient to fund the costs to complete the Work.
third party claims involving the Design-Builder or reasonable evidence demonstrating that third-party claims are likely to be filed unless and until the Design-Builder furnishes the City with adequate security in the form of a surety bond, letter of credit or other collateral or commitment sufficient to discharge such claims if established.
No later than seven (7) Days after receipt of an application for payment, .the City shall give written notice to the Design-Builder, at the time of disapproving or nullifying all or part of an application for payment, stating its specific reasons for such disapproval or nullification, and the remedial actions to be taken by the Design-Builder in order to receive payment. When the above reasons for disapproving or nullifying an application for payment are removed, payment will be promptly made for the amount previously withheld.
10.05 CITY OCCUPANCY OR USE OF COMPLETED OR PARTIALLY COMPLETED WORK
10.5.1 Portions ofthe Work that are completed or partially completed may be used or occupied by the City when (a) the portion ofthe Work is designated in a Certificate of Substantial Completion, (b) appropriate insurer(s) or sureties consent to the occupancy or use, and (c) appropriate public authorities authorize the occupancy or use. The Design-Builder shall not unreasonably withhold consent to partial occupancy or use. The City shall not unreasonably refuse to accept partial occupancy or use, provided such partial occupancy or use is of value to the City.
38
JPSTC Design- Build Agreement
10.06 FINAL PAYMENT
Final Payment, consisting of the unpaid balance under Section 10.1.6 and, if applicable, the unpaid balance of (i) the Cost ofthe Work, (ii) compensation for Design Services and (iii) the Design-Builder's Fee, shall be due and payable when the work is fully completed, and further subjecl to the satisfaction of requirements set forth in Exhibit 19. Before issuance of final payment, the Design-Builder shall provide satisfactory evidence that all payrolls, material bills and other indebtedness connected with the Work have been paid or otherwise satisfied, and all reporting requirements have been satisfied.
In accepting final payment, the Design-Builder waives all payment claims except those previously made in writing and which remain unsettled.
10.07 NO WAIVER OF RIGHTS BY CITY The City will not be precluded or estopped by any measurement, estimate or certificate made either before or after completion and acceptance of any Work and payment therefore, from showing the true amount and character of the Work performed and materials furnished by the Design-Builder, or from showing that any such measurement, estimate or certificate is untrue or incorrectly made, or that the Work or materials do not conform in fact to the Agreement. The City will not be precluded or estopped, notwithstanding any such measurement, estimate or certificate and payment in accordance therewith, from recovering from the Design-Builder and its sureties such damages as the City may sustain by reason of Design-Builder's failure to comply with the Agreement. Neither approval nor acceptance by the City, nor any payment for the whole or any part of the Work, will operate as a waiver of any portion of the Agreement, or of any power herein reserved or any right to damages herein provided. A waiver of any breach of the Agreement will not be held to be a waiver of any other or subsequent breach.
ARTICLE 11 INDEMNITY, INSURANCE, BONDS
11.01 INDEMNITY Design-Builder must defend, indemnify, keep and hold harmless the City, its officers, representatives, elected and appointed officials, agents'and employees (collectively, the "Indemnified Parties,") from and against any and all Losses (as defined below), arising out of or being in any way connected with the Design-Builder's performance under this Contract, except as otherwise provided in 740 ILCS 35 "Construction Contract Indemnification for Negligence Act" if it applies, including those related to: injury, death or damage of or to any person or property; any infringement or violation of any property right (including any patent, trademark or copyright); failure to pay or perform or cause lo be paid or performed Contractors covenants and obligations as and when required under this Contract or otherwise to pay or perform its obligations to any subcontractor; and injuries to or death of any employee of Design-Builder or any subcontractor under any workers compensation statute When 740 ILCS 35 applies, indemnification provided by the Design-Builder to the Indemnified Parties will be to the maximum extent permitted under applicable law.
"Losses" means, individually and collectively, liabilities of every kind, including monetary damages and reasonable costs, payments and expenses (such as, but not limited to, court costs and reasonable attorneys' fees and disbursements), claims, demands, actions, suits, proceedings, lines, judgments or settlements, any or all of which in any way arise out of or relate to the negligent or otherwise wrongful errors, acts, or omissions of Design-Builder, its employees, agents and subcontractors.
39
JPSTC Dcsiun- Build Amcemem
The Design-Builder will promptly provide, or cause lo be provided, to the Commissioner and the Corporation Counsel copies of such notices as Design-Builder may receive of any claims, actions, or suits as may be given or filed in connection with the Design-Builder's performance or the performance of any Subcontractor and for which the Indemnified Parties are entitled to indemnification hereunder.
At the City Corporation Counsel's option, DesignTBuilder must defend all suits brought upon all such Losses and must pay all costs and expenses incidental to them, but the City has the right, at its option, to participate, at its own cost, in the defense of any suit, without relieving Design-Builder of any of its obligations under this Contract. Any settlement must be made only with the prior written consent ofthe City Corporation Counsel, if the settlement requires any action on the part ofthe City.
The Design-Builder shall be solely responsible for the defense of any and all claims, demands, or suits against the Indemnified Parties, including without limitation, claims by an employee, subcontractors, agents, or servants of Design-Builder even though the claimant may allege that the Indemnified Parties were in charge of the work or service performed under the Contract, that it involves equipment owned or furnished by the Indemnified Parties, or allege negligence on the part ofthe Indemnified Parties. The City will have the right to require Design-Builder to provide the City with a separate defense of any such suit.
To the extent permissible by law, Design-Builder waives any limits to the amount of its obligations to indemnify, defend or contribute to any sums due to third parties arising out of any Losses, including but not limited to any limitations on Design-Builder's liability with respect to a claim by any employee of Design-Builder arising under the Workers Compensation Act, 820 ILCS 305/1 et seq. or any other related law or judicial decision (such as, Kotecki v. Cyclops Welding Corporation, 146 III. 2d 155 (1991)). The City, however, does not waive any limitations it may have on its liability under the Illinois Workers Compensation Act, the Illinois Pension Code or any other statute.
The indemnities in this section survive expiration or termination of this Contract for matters occurring or arising during the term of this Contract or as the result of or during the Design-Builder's performance of work or services beyond the term. Design-Builder acknowledges that the requirements set forth in this section to indemnify, keep and save harmless and defend the City are apart from and not limited by the Design-Builder's duties under this Contract, including the insurance requirements set forth in the Contract.
11.02 DESIGN-BUILDER'S INSURANCE The insurance coverage that Design-Builder is required to carry pursuant to this Agreement is as set forth in Exhibit 14, "Insurance Requirements," attached hereto and incorporated by reference herein.
ROYALTIES, PATENTS AND COPYRIGHTS The Design-Builder 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 Design-Builder and incorporated in the Work. The Design-Builder shall defend, indemnify and hold the City harmless from all suits or claims for infringement of any patent rights or copyrights arising out of any patented or copyrighted materials, methods or systems specified by the City.
BONDING
1 1.4.1 Performance and Payment Bonds are required ofthe Design-Builder. Design-Builder must
40
JPSTC Design- Build Agreement
deliver to the Commissioner a performance and payment bond in the amount of 100% of GMP. The performance bond must comply with the provisions of 30 ILCS 550/1 el.seq as amended, and of § 2-92-030 ofthe Municipal Code, as amended. Il must also be in the form ofthe performance and payment bond form as specified by the City, i he surety or sureties issuing the bond must be acceptable lo the Comptroller and must have a Best's Key Rating Guide of "B t," Class XI or greater and be listed in the most recently published "Listing of Approved Sureties" ofthe U.S. Department ofthe Treasury Circular 570. with underwriting limitations in excess ofthe Contract Price. The bond must cover the warranty period required by the Contract.
Such Performance Bond shall be issued in the penal sum equal to one-hundred percent (100%) of the GMP. Such Performance Bond shall cover the cost to complete the Work, but shall not cover any damages ofthe type specified to be covered by the insurance pursuant to Paragraph 11.2 and Paragraph
11.3, whether or not such insurance is provided or is in an amount sufficient to cover such damages.
The penal sum ofthe Payment Bond shall equal the penal sum ofthe Performance Bond, ihe Design-Builder's Payment Bond for the Project, if any, shall be made available by the City for review and copying by the Subcontractor.
Any increase in the GMP Price that exceeds 10%) ofthe aggregate shall require a rider to Bonds increasing penal sums accordingly. Up to such 10%) amount, the penal sum ofthe bond shall remain equal to 100% ofthe GMP or as otherwise provided in Subparagraph 11.7.2. The Design-Builder shall endeavor to keep its surety advised of changes within the scope of the initial Agreement potentially impacting the GMP or the Dates or Substantial Completion or Final Completion, though the Design-Builder shall require that its surety waives any requirement to be notified of any alteration or extension of time.
11.05 LIMITED MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES
The City and the Design-Builder agree to waive all claims against each other for any consequential, incidental, exemplary, or punitive damages that may arise out of or relate to this Agreement, except with respect to any such damages identified in Section 11.5.2 below. The City agrees lo waive consequential, incidental, exemplary, or punitive damages, including but not limited to the City's loss of use of the Project, loss of employee time or productivity, loss of reputation, or insolvency. The Design-Builder agrees to waive consequential, incidental, exemplary, or punitive damages including but not limited to loss of business, loss of financing, principal office overhead and expenses, loss of profits, loss of bonding capacity, loss of reputation, or insolvency. The provisions of this Paragraph shall also apply to the termination of this Agreement and shall survive such termination.
The following items of damages arc not included in City's waiver of Consequential Damages:
direct damage or destruction of City property caused by Design-Builder; or
injury or death of any person caused by Design-Builder; or
the remedy of cost of cover as expressly set forth in this Agreement; or
third-parly claims relating to Design-Builder's indemnification obligations under Section 11.1;
damages resulting from Design-Builder's willful misconduct or gross negligence:
liquidated damages in Section 6.4; and
any losses covered by insurance required by the Contract Documents.
The City and the Design-Builder shall require similar waivers in contracts with Subcontractors and others retained for the Project.
41
JPSTC Design- Build Agreement
ARTICLE 12
SUSPENSION AND TERMINATION OF THE AGREEMENT AND CITY'S RIGHT TO PERFORM DESIGN-BUILDER'S RESPONSIBILITIES
12.01 SUSPENSION BY THE CITY FOR CONVENIENCE
The City may order the Design-Builder in writing to suspend, delay or interrupt all or any part of the Work without cause for such period of time as the City may determine to be appropriate for its convenience.
Adjustments for such suspension, delay or interruption shall be made for increases in the GMP, compensation for Design Services, estimated Cost of the Work (and corresponding Design-Builder's Fee), or the Date of Substantial Completion or the Date of Final Completion, in accordance with Article 9. No adjustment shall be made if the Design-Builder is or otherwise would have been responsible for the suspension, delay or interruption of the Work, or if another provision of this Agreement is applied to render an equitable adjustment.
12.02 EVENT'S OF DEFAULT
12.2 In addition to any breach of contract and events of default described within the Agreement, the following constitute an event of default:
Any material misrepresentation, whether negligent or willful and whether in the inducement or in the performance, made by Design-Builder to the City.
Design-Builder's material failure to perform any of its obligations under this Agreement, including the following:
Failure lo perform the Work with sufficient personnel and equipment or with sufficient material to ensure the timely performance of the Work, or failure to timely perform the Work
Failure to have and maintain all professional licenses required by law to perform the Services;
Failure to perform the Work in a manner reasonably satisfactory to Ihe Commissioner, or inability to perform the Work satisfactorily, as a result of insolvency, filing for bankruptcy or assignment for the benefit of creditors;
Failure to promptly re-perform, as required, within a reasonable time and at no cost to the City, Work that are rejected as erroneous or unsatisfactory;
Discontinuance ofthe Work for reasons within Design-Builder's reasonable control;
Failure lo update promptly EDS(s) furnished in connection with this Agreement when the information or responses contained in it or them is no longer complete or accurate;
Failure to comply with any other term of this Agreement, including the provisions concerning insurance and nondiscrimination; and
42
JI'STC Design- Build Agreement
12.2.2.8 Any change in ownership or control of Design-Builder without the prior written approval ofthe Commissioner, which approval the Commissioner will not unreasonably withhold.
Design-Builder's default under any other Agreement it may presently have or may enter into with the City during the life of this Agreement. Design-Builder acknowledges and agrees that in the event of a default under this Agreement the City may also declare a default under any such other agreements.
Design-Builder's repeated or continued violations of City ordinances unrelated to performance under the Agreement that in the opinion ofthe Commissioner indicate a willful or reckless disregard for City laws and regulations.
Design-Builder's use of a subcontractor that is currently debarred by the City or otherwise ineligible to do business with the City.
12.2.6 Cure or Default Notice
The occurrence of any event of default permits the City, at the City's sole option, to declare Design-Builder in default.
The Commissioner will give Design-Builder written notice of the default, either in the form of a cure notice ("Cure Notice"), or, if no opportunity to cure will be granted, a default notice ("Default Notice"). If a Cure Notice is sent, the Commissioner may, in his sole discretion, give Design-Builder an opportunity to cure the default within a specified period of time, which will typically not exceed 30 days unless extended by the Commissioner. The period of time allowed by the Commissioner to cure will depend on the nature ofthe event of default and the Design-Builder's ability to cure. In some circumstances the event of default may be of such a nature that it cannot be cured. Failure to cure within the specified time may result in a Default Notice to the Design-Builder.
Whether to issue the Design-Builder a Default Notice is within the sole discretion of the Commissioner and neither that decision nor the factual basis for it is subject to review or challenge under the disputes provision of this Agreement
If the Commissioner issues a Default Notice, the Commissioner will also indicate any present intent the Commissioner may have to terminate this Agreement. The decision to terminate is final and effective upon giving the notice. If the Commissioner decides not to terminate, this decision will not preclude the Commissioner from later deciding to terminate the Agreement in a later notice, which will be final and effective upon the giving of the notice or on such later date set forth in the Default Notice. When a Default Notice with intent to terminate is given, Design-Builder must discontinue any Work, unless otherwise directed in the notice.
12.03 CITY'S REMEDIES Upon an event of default, the City may invoke any remedies at law or in equity, and including any or all ofthe following remedies:
The right of set off against any payments due or to become due to the Design-Builder.
The right to take over and complete the Work, or any part thereof, either directly or through others. T he City may exercise its right to take assignment of any or all of the Design-Builder's subcontracts, material and equipment to complete the Work. In the event a collateral assignment has not been executed, then Design-Builder will execute, or cause to be executed, any assignment, agreement or other document which may be necessary, in the sole opinion ofthe City's legal counsel, to evidence or effect compliance with this provision. The Design-Builder will promptly deliver such documents upon the City's request. In the case of any subcontractor so assigned and accepted by the City, the Design-Builder will remain liable to the subcontractor for any payment already invoiced to and paid by the City,
43
JPSTC Design- Build Agreement
and for any claim, suit or cause of action based on or the result of any fault, negligent act, failure to act, error, omission, fraud, willful or intentionally tortious conduct, or any other act or omission, or breach of the Agreement by the Design-Builder, its officers, employees, agents and other subcontractors, arising prior to the date of assignment to the City, when such claim, suit or cause of action has not been discharged, disposed of, or otherwise resolved as of that date. The Design-Builder shall include the requirements of this paragraph in each of its subcontracts. The City's right to take over and complete the Work shall include the City's right to use material and equipment, whether owned or leased, which is within the scope ofthe Work or necessary for the completion thereof which has been paid for by the City, whether located on or off the Project Site. The Design-Builder will receive no further payment, if any, until the Work is completed.
In the event of termination, all costs and charges incurred by the City, together with any cost of completing the Work, will be deducted from any moneys due or which may become due to the Design-Builder. In case the expense so incurred by the City will be less than the sum which would have been payable under the Agreement, if it had been completed by the Design-Builder and had not been forfeited by the Design-Builder, then the Design-Builder will be entitled to receive the difference, subject to any claims or liens thereon, which may have been filed or any prior assignment filed with the City. In case the expense incurred by the City will exceed the sum which would have been payable under the Agreement, the Design-Builder and its surety will be liable and will pay to the City the amount of such excess.
The right to terminate the Agreement as to any or all Work yet to be performed.
The right of limited specific performance as identified below:
Immediate transfer of title and delivery of permanent equipment or materials;
Immediate delivery and transfer of software, software licenses, project-related data files/data bases, and other intellectual property rights;
Immediate assignment of purchase orders and leases;
Reasonable access to Key Personnel, who do not necessarily have to be physically present in Chicago.
The right of money damages, including, but not limited to, all expert witness or other consultant fees, and court costs, which the City may incur in connection with any claim, suit or action based upon, related to or arising from, directly or indirectly, an event of default hereunder.
The right to withhold all or any part of Design-Builder's compensation.
The right to deem the Design-Builder (including any partners, in the event Design-Builder is a joint venture, or members, in the event Design-Builder is a limited liability corporation) non-responsible in future procurements by the City.
The right lo take over the Work, or contract with another design-builder, including, but not limited to, any subcontractors, and hold Design-Builder liable for any amounts paid for such Work above what the City would have paid the Design-Builder for that same Work. Design-Builder will assign any of its subcontracts to the City that the City may request.
44
JPSTC Design- Build Agreement
12.3.10 The right lo declare Design-Builder (including any partners, in the event Design-Builder is a joint venture, or members, in the event Design-Builder is a limited liability corporation) in default under other contracts Design-Builder has with the City.
NON-EXCLUSIVITY i he remedies under the terms of this Agreement are not intended to be exclusive of any other remedies provided, but each and every remedy will be cumulative and will be in addition to any other remedies existing now or hereafter at law, or in equity'. No delay or omission lo exercise any right or power accruing upon any event of default will impair any such right or power, nor will il be construed as a waiver of any event of default or acquiescence therein, and every such right and power may be exercised from time lo time and as often as the City may deem expedient.
COURT DETERMINATION OF WRONGFUL TERMINATION
In the event a court of competent jurisdiction determines that the City's termination for cause was wrongful, such termination shall be deemed a termination without cause under Paragraph 12.6 and the terms of Paragraph 12.6 will apply.
TERMINATION BY CITY WITHOUT CAUSE
The City may terminate this Agreement, in whole or in part, at any time by a notice in writing from the
City to the Design-Builder. The effective date of termination will be the date the notice is received by
the Design-Builder or the date stated in the notice, whichever is later.
After the notice is received, the Design-Builder must restrict its activities, and those of its
Subcontractors, to activities pursuant to direction from the City. With the exception of demobilization
costs, no costs incurred after the effective date ofthe termination are allowed unless the termination is
partial.
Design-Builder is not entitled to any anticipated profits on services, work, or goods that have not been provided. The payment so made to the Design-Builder is in full settlement for all services, work or goods satisfactorily provided under this Agreement prior to the date of termination. If the Design-Builder disputes the amount of compensation determined by the City to be due Design-Builder, then the Design-Builder must initiate dispute settlement procedures in accordance with the disputes provision. As a condition of receiving the payments provided under this Article 12, the Design-Builder shall cooperate with the City by taking all steps necessary to accomplish the legal assignment ofthe Design-Builder's rights and benefits to the City, including the execution and delivery of required papers.
ARTICLE 13 DISPUTE MITIGATION AND RESOLUTION
13.01 GENERAL
Compliance with the provisions in this Article 13 is a precondition to seeking judicial review of an adverse decision of the Chief Procurement Officer. Design-Builder must not withhold performance of and must prosecute any Work required by the Commissioner while Design-Builder's claim, including judicial resolution, if any, is pending. Design-Builder must prosecute all of Design-Builder's Work including any disputed Work with the same diligence and effort as if no dispute existed. Neither the Chief Procurement Officer's determination, nor the continued performance by either party, constitutes
45
JPSTC Design- Build Agreement
an admission as to any factual and/or legal position in connection with the dispute or a waiver of any rights under the Agreement.
v 13.02 CLAIMS
This provision applies to all claims under this Agreement, including those for time, money, or both.
Procedures. Within 14 days after a basis for claim arises, Design-Builder must submit Design-Builder's claim in writing to the City's resident engineer or its project manager ("Commissioner's Representative). This written claim to the Commissioner's Representative will constitute "notice" to the City for purposes of determining initial timeliness ofthe claim; oral notice is insufficient. If Design-Builder and the Commissioner's Representative are unable to promptly (depending upon the complexity ofthe matter) resolve the claim, Design-Builder must forward Design-Builder's claim in writing to the Commissioner together with the documents listed in (a) through (d) below (collectively, "Design-Builder's documents"). Design-Builder must include:
A general statement of the basis for the claim,
Reference to the applicable Agreement provisions,
All records that support the claim, and
All documents that relate to it, such as correspondence, and that arc reasonably necessary for the Commissioner to resolve the claim.
It is Design-Builder's responsibility to furnish Design-Builder documents to the Commissioner at the time Design-Builder forwards the claim, as, with or without the supporting documentation, the Commissioner has 30 days to respond in writing to Design-Builder after he has received the claim. Incomplete information may result in an adverse response. The response may be in the form of a Contract Modification or Change Order.
The Commissioner will provide within 30 Days a written response to the Design-Builder's documents. The Commissioner may, at his sole option, forgo the opportunity to respond directly to Design-Builder's claim by referring it with all Design-Builder documentation and a Request for Resolution of Dispute to the Chief Procurement Officer and supplying such additional documentation as the Chief Procurement Officer may require. If the Commissioner does not render a "final decision of the Commissioner" within the prescribed time frame, then the Claim should be deemed denied by the Commissioner.
13.03 DISPUTES
Invoking Dispute Resolution Procedures. If Design-Builder disputes the Commissioner's resolution or denial of Design-Builder's claim, Design-Builder has 15 days to forward Design-Builder's claim and Design-Builder's documentation to the Chief Procurement Officer indicating that Design-Builder is requesting resolution of a dispute and showing that Design-Builder has complied with the preceding claims procedures. The 15-day period to invoke dispute resolution by the Chief Procurement Officer is counted from the date the Commissioner's written resolution was sent to Design-Builder.
Waiver. If Design-Builder fails to file a Request for Resolution of Dispute with the Chief Procurement Officer within the 15-day period Design-Builder will have waived Design-Builder's claim, the right to make the claim later, and the right to dispute its resolution or denial.
Dispute Procedures. Once the dispute resolution procedures are invoked, the Chief Procurement Officer will proceed to a final and binding decision under such rules and regulations as he from time to time promulgates. A copy of those rules and/or regulations is available through the Department of Procurement Services. The Chief Procurement Officer's decision will be implemented through a
46
JPSTC Design- Build Agreement
Contract Modification or Change Order, if required, that will be made a part ofthe Agreement with Design-Builder's signature or without it should Design-Builder refuse to sign the Contract Modification. If either Design-Builder or the Commissioner disagree(s) with the decision ofthe Chief Procurement Officer, the exclusive remedy is judicial review by a common law writ of certiorari. Unless such review is sought within 35 days of receipt ofthe Chief Procurement Officer's decision, all rights to seek judicial review are waived.
ARTICLE 14 MISCELLANEOUS PROVISIONS
ASSIGNMENT Neither the City nor the Design-Builder shall assign its interest in this Agreement without the written consent of the other. The terms and conditions of this Agreement shall be binding upon both Parties, their partners, successors, assigns and legal representatives. If either Party attempts to make such an assignment, that Party shall nevertheless remain legally responsible for all obligations under the Agreement, unless otherwise agreed by the other Party.
GOVERNING LAW This Agreement is governed in accordance with the laws of the State of Illinois without regard to choice of law principles. Design-Builder irrevocably submits, and will cause its Subcontractors to submit, to the original jurisdiction of those State or Federal courts located within the County of Cook, State of Illinois, with regard to any controversy arising out of, relating to, or in any way concerning the execution or performance of this Agreement. Design-Builder consents to service of process on Design-Builder, at the option of the City, either by registered or certified mail addressed to the applicable office as provided for in this Agreement, by registered or certified mail addressed to the office actually maintained by Design-Builder, or by personal delivery on any of Design-Builder's officers, directors, or managing or general agents.
SEVERABILITY The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision.
NO WAIVER OF PERFORMANCE The failure of either Party to insist, in any one or more instances, on the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any of its rights, shall not be construed as a waiver or relinquishment of such term, covenant, condition or right with respect to further performance. Whenever under this Agreement a Party, by a proper authority, waives performance by the other Party in any respect, or waives a requirement or condition lo either the City's or Design-Builder's performance, the waiver so granted, whether express or implied, only applies to the particular instance and is not a waiver forever or for
. subsequent instances of the performance, requirement or condition. No such waiver is a modification of this Agreement regardless of the number of times the either Party may have waived the performance, requirement or condition.
14.05 JOINT AND SEVERAL LIABILITY If Contractor, or its successors or assigns, if any, is comprised of more than one individual or other legal entity (or a combination of them), then under this Agreement, each and without limitation every obligation or undertaking in this Agreement to be fulfilled
47
JPSTC Design- Build Agreement
or performed by Contractor is the joint and several obligation or undertaking of each such individual or other legal entity.
TITLES AND GROUPINGS The titles given to the articles of this Agreement are for ease of reference only and shall not be relied upon or cited for any other purpose. The grouping of the articles in this Agreement and ofthe City's specifications under the various headings is solely for the purpose of convenient organization and in no event shall the grouping of provisions, the use of paragraphs or the use of headings be construed to limit or alter the meaning of any provisions,.
(
JOINT DRAFTING The Parties to this Agreement expressly agree that this Agreement was jointly drafted, and that both had opportunity to negotiate its terms and to obtain the assistance of counsel in reviewing its terms prior to execution. Therefore, this Agreement shall be construed neither against nor in favor of either Party, abut shall be construed in a neutral manner.
JPSTC Design- Build Agreement
CONTRACT" SIGNA TURE PAGE
Contract No.
Specification No.
Vendor Name:
Total Amount (Value):
Fund Chargeable:
CONTRACTOR:
By:
Name:
Its:
Attest:
State of
County of
This instrument was acknowledged before me on this day of , 20 by
as President (or other authorized officer) and
as Secretary of (Corporation Name).
(Seal)
Notary Public Signature
Commission Expires:
CITY OF CHICAGO
Commissioner of Fleet and Facility Management Date
49
JPSTC Design- Build Agreement
- CHICAGO PUBLIC SAFETY TRAINING PROGRAM PLAN
City of Chicago Joint Public Safety training - Mastcr'Prdgram Plan
; .Proposed Locatlbn(s).
Shared Prograrr
MM
Community Spjin
Outdoor lljiJ Space
Rrjuaurant/Ritai! Dovelepr-ient
Community Rcicrn
Teen Media irrj
Computer Boom
Adult Study Rooms
Taclicat Tf aiding Unit [TTUf
lation Armory
To ret Mitigation
; Terrorism Awarrneu iViLionse Aradrm I (TARA)
\ Law Enforcement Medical and Rescue 1 Training [ItMAHI) Tire Arms Training lidoor Ranges
Tactical Rifle (Carttinf)
U Shared om-.otj' -J*:* i?jcv., pari ofr-L'Sliu'di't/Kctail 1) Two -e;t*ur.nn/r*iji scares named to'-.ne arijarr-n site •linji. J lerute r.Ijwuom f:»ir!-«n
»tion project
1) Computer Lib capaule spaco, tdriitio'ia! will ind dar.i port 1
) Lnia.l breat out srMiesfor smjll study and tui
p-ogra
1) CFD museum to -amain it hiiioncally significant H I Qumn
Academy
1} Moving from Near fJorlh H S tt'rn(joiar ly to South Shore H S
inly to South Shore H S
¦tfetatciiiu JPSTC
1) At O Hjfc office ui Hiding. e»p?rted to terror Shore 14 S
1) JPSTC tactical ndoor ran cri nil: be tc rer.rui-i and in service use,
i.'ki thn»e watch uiilnation
Existing three 5-lane CPD district range, are inadequate/require renovation, costs not considered wuhin project.
40 lanes, peak uie is Jinuny through April during in-service certification renewal [Assumes 3 watch operations)
Trainees/month 1,175 :n service and 10-1 recruits
3220 (trainees) / 40 {1-t.ner.) r BO 7 trainees per Inn*
30 days/month util.ied 5 days/week = 31 5tra ning days/rnontli
78 (tra:nees/lane)/ 21 5 (training days) = 3 72 irainees/lane/riay
1) JPSTC tactical rndon; .-angeswil: r:rIec.omiiF ant and suitable for ;-i
I) Faisling three 5-lane CPD rl.strict ranges are iriii'Jvquiili'Artii urination, costs not rsnsidcrrd within project 31 At' 40 shootMg lanes ace rifle rated, currently assumed 2 600 CPD
:rs ire Carbine Certified and 300 are currently on the waitlist Recommended '-hat cert ideal ion teits occur otiti de of genera! cenilif stiori wh;cn occurs Ian Mar
Miming Cirb r-c dr.'', recruit recruit luv J"in tr-tining or.rurs m
Trainees/month 3S2 (Carbine) - 104 (Recruit) =¦ 466 jmeei/mor.lri
4GG |trd:nees) / 4C (lane} = 11 7 lr«m«ei «er lane
30 day/month ul:ii«!d T> fiays/week •- 21 Tt days/month
11 7 lira r.ee:/lnnei/21 5 (tram r;g daFs) - ~c 34 Binecs/lane/day
Range Armory
rren: l'*in:ng ipaces ar« neither ded.cated nor adequate 'iii tascr training part of TTU, recti', fication occurs with annual weapois<)ua: f catm-t. tvpicilly at Area Ranges
Phyncal Training
"GymnV.JrT. ~~
I
Video Simulation Training (Virtra)
Procedural Justice|10 10|1) JPSTC will p-owide 'alliums lo (upplei>en! on sln£
?) Cmrent CFD wvithl mom n ivul.tilf tr> inilmttori only
1) Outdoor runni-ig uelh provided at JPSTC
'isioned to remair. in Police Acadcuy
Defensive Tactics ei
1] Fushns Virtia System to rmm; at Police Academy
Supplement win adiiilicnal Virtra ivsiern at JPSTC l)Currentiy rnvii.cn th'i progrsm at ernting Police Academy may be able to ui.Iilo vacated Cook County court-cam space al Belmont and Western lo- cert* n consent di*cr?e training and decrease in n
I) tictudei high speed cnasn i) To he us^d hv UTi co-nnj-I) Detcn" ^e i'can beacccri: located elsewhere 1)CP0 :i ritrrK.it v usnr, off v
JPSTC Design- Build Agreement
Exhibit I - Chicaao Public Safetv Trainins, -Master Prom-am Plan
IPP-iLn
I'OT i'n^jliii; T-;-i j
Cc-it"-te-l»io.i-s
ml.itF^weT,|!,,"1,"r,-Tn.nI'(cV)
Marabous M.irr-ria! (HA/MA1)
Technical flucm Coi'snec Snaii'
Structural (Conqm'ej Cellini.- Prop Puhlic Trans,norta»-nn (L 1'i.r R;.\ Ftc )
' ! * • i •
DL'-n.-asv-coirr
L'l PPT c'.isr.ro-TK
I ;rSinin«io be p-ositl'-d 41 iPSIC
1) Projen will provide support e-emcnls lor tilv ,vc-v iVd $-n
ul ca'(si could ne provided ttirocflh future Ff ma grants 3) CTA ir^y be willing tn donate « L-Ca' for training aurnows JPSTC rcti-r.ticin pond can be rnnli^ur»-d so :l could he us»rf
M<;h Anjte
Heavy Kr-scue Emergency Medical Technician (IMT) Emergency Medical Simulation (Sim lab) Paramedic Training
Rapid Intervention Training (HIT Huuse)
Live Tire Burn Scenario*
Burn Tnwer (5 Story ) Multi-Use Bui!dr-.g (2 Story I Co rr mere i a I Strip (1 Story) Residential Structure (1 Story w/ Attic *r
Be semen t)
F ie Prop) (e g *chide. propane tank) Stratecic Decision Support Center (SOSCI
Office of Emergency Management anrf CommunIcation(OEMC}
Drill Hall " " ~~
Indoor 5c en a no Training
M^jor Incident Communication Training
1) Wili be a C'asi A bum build-ng I) Will be a C'isi A bum building 1) Will be J Cass A burn bmiding
1) Wiii be • Cist A burn building
1) Prop tuei will be dete'mined by proo type, vehicle cou'd be
propane or Ciass A_
1) 5DSC training space to be built out in Jamon Bind Police Academy
Current training facilities are considered inadequate due to latk of space and minimal technology
Future training will occur at the JPSTC to support scenario based 1) Dedicated to CFD
1) Example scenario settings, apartment, bar, convenience sto.-e. g=s station, courtroom. A lock up facilities. TDD in design development 1) OlMC 'cd joint tram,ng, two diipatich (unuiln with PCAD & FCAD & PSAP I radio capabil tin. enables OtMC dispatchers, (the ication link b/n CPD and CFD responders) to integrjte with based simulations
Non-Training Related Programming
IDQC
Medical Group
f re Departn-.rnt HH
T re Prevention (Inspections)
Fire Educaticn (Stay Alive House)
CPR Trainin(/Ce:HfcatiOn
Cn c»j*o Petite and Fire Figiter Trailing
Academy (HS Program)
Video. Photo. anil Reproduction
1) Used during ch
1) To be relocated to RJ Qumn If Tu be repeated to R I Qumn DWiiiremainatRJ Qumn
ff hours, cou'd be snared
Could ont in-.
Re producti c
JPSTC Design- Build Agreement
Exhibit I - Cliicauo Public Safety¦ Training -Master Prosram Plan
n
Additional Ci:vwndr Ir«inin| f JOl S».fl Wiser
bubme'iied •jrh.r.ir (Mr .cue" liflno.' Dive Pool {SCUlU) Can>ne Ira'-irsif an! If IK -j) fctuuntuo ftjliir
Ouldni>r r.rca,irtl D.ar.ar
f r'ad
i:
I-
Suevia! vvapcuu and Tac t:rs (SWA! j .
l l'ticninin.i moii *l • rei:u.:*i.-Oo j:e;/rtivf rr-v:ic dive noo'. m ui curat a IBDlo' it nn. 1J Ojr'entlt 'i design \taf.cs ptinnerj fsr O'Haie. i; So lurid: rig iir Icnt ci- identified No: ecru OceO withm pron-.i. I) Ito 'und.ng o' lnc*i>nr> Uenu'n.'d h.)t ronvciviel .mihsp proiect.
l (Uii0:>n or Iol jr>r>fl Wei-illficd Not ions.d*r»o mith rl rjrn|i-«l. llN.rt fy(ivd»n'd *iinm srcjed 1| Hut cwnjjovred *nni-i project.
1) rteciu^i'i in current trxaliunl,*) Net CC-nvdr<*d within project 1) Training tn tor.I.niir in current facility ¦'
'34 ¦Chicago TireDept dedicated proaram space * Chicaa:] Ponce Dent dedicated p-ot
k'f-j. =llotn CFD tV rjup have fled rated unshared piogram space -Slia.-crl progum sj'.ace
Symbol Legend.
Q = Community Space - not directly related to training D'ofram
O - Facility not City (jwned and/or space is considered inadequate or temporary
" = City owned facility /appropriate for training activity and in line with major metropolitan standards A ~ Support programming, not di'ectly related to training curriculum
• - Wili be located at an app'on.- ate City owned lacilily that n in tine with mrtjcir metropolitan standard]
= Community prog'am space
= Program proposed fot JPSTC in West GarPeld Park
Notes.
I) Budget cost estimates to be farther validated id tonf-could result accordingly
li) Additional space shacing opportunities for general ch similar support spaces.
Includes indoor nnd outdoor facilities
Not all associated holding functions included, only primary training fane:ions listed
City to continue to iitiiu* ufl-cair.piii large audit oriufr. spite* lur large assemb irs such
Trail rig departments w il b- supported at the ir respective location bv administralon
d through tepanitt- project
J
JPSTC Design- Build Agreement
Exhibit 1 - Chicago Public Safety Training -Master Program Plan
EXHIBIT 2 - JPSTC SCHEMATIC DESIGNS AND PROJECT PROGRAM
General Project Overview:
The Joint Public Safety Training Center (JPSTC) for the City of Chicago will provide the City's first responders with a real world training environment.
The campus will include:
Site Specific Elements:
o User and Visitor parking lots
o Class A Fire Props Buildings and a technical rescue structure o Tactical Village
o Driver training courses; driving pad, skid pad, and emergency vehicle operations course
o Stormwater Retention Pond Primary Training Building, composed of: -
o Office and Classroom structure
o Firing Range facility and support functions
o Scenario Building Apparatus Bay and Dive Training Building
A portion of the site along Chicago Avenue will be reserved for 7,000 square foot and 5000 square foot retail restaurants and 125 parking spaces to serve the community and the JPSTC.
The west portion of the site will have approximately 370 secure parking spaces will serve the staff, police recruits, fire and EMS candidates, and in-service police officers and fire fighters. The east portion of the site will be a trading pad for driver training, burn props, burn buildings, technical rescue structure, mock village and high speed Emergency Vehicle Operations Course (EVOC).
JPSTC Proiect Site
The project site has been formed through the joining of a 2FM asset and a CTA asset, the amended JPSTC project Site Plan is appended as Exhibit 2B.
Noted on the JPSTC Site Plan, but not included within the scope of work are two developer lots positioned on Chicago Avenue, defined as Lots 1 and 2. The City of Chicago will design and construct these developments outside of the scope of the JPSTC project. Included within the development scope will be a shared plaza area to allow for outdoor dining and gathering for neighborhood residents and JPSTC users.
The primary site elements will be:
Secure user parking lot off of Kilbourn Ave. Visitor parking lot off of Chicago Ave.
Secure training vehicle entrance located off of the relocated CTA access road.
Burn Props; these structures will be set in an urban environment to replicate real situations.
o A six story burn tower. A two story mixed use building.
o A single-story residential burn structure.
o A 1 story strip mall burn structure building. Tactical Village; a street scape will be developed to mimic differing building use types with streets, curbs, and
sidewalks. Tactical Rescue Structure. Vehicle training pads
o Pavement structures used for the various areas will be determined based on intended use.
o Sufficient runoff distances will be provided along the edges of the nearby high-speed environment to protect|1010|JPSTC Design- Build Agreement
Exhibit 2 - JPSTC Schematic Designs and Project Descriptions
users, o Driving pad, Skid pad,.
o High-speed emergency vehicles driving course. A train rail will be constructed on site, suitable for six pieces of rail equipment, with an adjacent concrete pad suitable
of supporting a crane used for lifting rail equipment. Stormwater retention pond with handstand pad for vehicle extraction training. Vegetated swale and emergency overflow route for stormwater. Vegetated earthwork berm.
6'-0" Chicago ornamental fence surrounding secure user parking and behind developer lots. 8'-0" privacy fence surrounding back of house scenario training elements, visual barrier. Landscaping along Chicago Ave
An area located in the northwest corner of the site dedicated for the placement of a future OEMC monopole radio
tower. This area will be surrounded by a 6'-0" ornamental fence. The project will attempt to balance the site grading plan allowing for all soil on site to be retained through the use of
berms and elevating the overall grade. Site lighting: Lighting will be provided for night time operations.
The outdoor training area will be directly accessed from the Scenario building. For safety this will be a gun free area and all personnel will pass though the armory area in the scenario building to secure their weapons prior to entering. The outdoor areas will be divided into primary fire and primary police training areas to limit conflicts in training activities.
Primary Training Building:
Office and Classroom Component
This building will be designed as a typical commercial office building with key features as follows:
There will be two primary entrances, one for users and one for visitors, each will have a security desk with UL level 3
ballistic protection built into the case work to allow security an area of refuge if attacked. A large multi-purpose room will be provided that will double a dining facility during normal hours and a gathering and
meeting space in off hours.
Vending facilities and a typical fire department kitchen will be provided adjacent to the large multi-purpose room. Classrooms of varying sizes, from 25 to 250 will be provided. The larger 250 person classrooms will have the ability to
be subdivided into smaller more regularly uses space through operable partitions. Office space will align with an open office strategy with limited private offices which will be reserved for supervisory
positions.
The public will be provided with access to specific classroom spaces as well as the multipurpose room when it is not in use.
Firing Range Component
The facility will consist of a 15 lane dynamic firing range, two 10 lane dynamic ranges, a 5 lane fixed position range, and the associated support spaces. All ranges will be 25 meters in length, be rifle rated, and will have appropriate acoustical treatments.
Sound control for indoor ranges includes two distinct components; sound levels within the range and sound levels in
adjoining occupied rooms. ' Side access doors behind the firing line will allow props such as wooden structures, cars, and the like to be brought into
the ranges.
Each range will have s specific Control Room with laminated glazing, a built-in countertop desk, requisite power and
ventilation, as well as provisions for data and power cabling. Sound levels at indoor ranges require a communications system capable of relaying range commands that are distinct
and separate from the sounds generated by shooting activities. The general lighting within each range is to be
dimmable and should provide uniform lighting levels throughout the entire range and adjoining areas. Specialized lighting such as patrol car light bars are used to simulate the strobe effect that occurs in the field, the range
master or the trainer should have the ability to dim lights by banks to suit training needs. Range Facility Support Spaces:|1010|JPSTC Design- Build Agreement
Hxhibil 2 - JPSTC Schematic Designs and Project Descriptions
o Each range should have a storage area for targets and supplies right off of the firing range,
o A weapons cleaning area
o A ready room for preparation to enter the range
o An armory for weapons issue, this armory is for the JPSTC only and is not the main armory for the CPD
o Ammo storage
o A service desk
o Local lockers
Scenario Building Component
The Scenario Building will be a multi-story building dedicated to training police and fire personnel in real life situations. This component will contain the following:
Safety is key, so the first space you come to is the armory and weapon check where all weapons will be secured while in the scenario environment
Tactical Training Unit (TTU) will have dedicated scenario spaces due to the use of simulated live fire that could cause a safety issue with other groups training. This area will be divided into two primary sections: o Flexible basic training scenario, o Reality based village, which will include:
Semi-fixed scenarios spaces.
The ability to dim the lights and accommodate amplified sound effects and theatrical smoke.
Multiple stair configurations and doors for forced entry.
Access to the shared scenario street scape to enhance training. There will be a simulation range. This area will also be used for taser training.
The shared indoor scenario street scape will resemble a Chicago street with mutable multi-story buildings including
classrooms, apartments, courtroom, police station with interview rooms, processing and holding area, bar,
convenience store, and bank. Law Enforcement Medical and Rescue Training (LEMART) will have a dedicated space. The drill hall will be used mostly by CFD candidates and include:
o Interior and exterior balconies stairs, fire risers, fire escapes, and street scape.
o Storage for bunker gear
o A 6 story simulated elevator shaft
o A hose tower
o The ability to open to other scenario street scapes and the exterior training area. Classrooms are located within this building so that multiple trips through the weapons check required during the
course of training are minimized. Scenario Building Support Spaces:
o The one story support space will have;
Separate male and female locker rooms for both staff and in-service personnel.
Separate male and female locker rooms for CPD recruits and CFD/EMS Candidates.
Space for 2FM engineers, receiving and building systems.
Apparatus Bay Building
This building will be used to house training vehicles and provide a location for indoor water rescue training.
Building will house:
o Fire apparatuses storage bays for engines
o Vehicle parts storage
o Driving school support garage
o One driving school classroom
o Indoor tactical water rescue pool
o Water Rescue Storage for training equipment and pool mechanical spaces will also be included. Additional space is available adjacent to the building to build additional apparatuses storage in the future.
JPSTC Design- Build Agreement
Exhibit 2 - JPSTC Schematic Designs and Project Descriptions
— PROPERTY LINE
PRECAST WALL. ff • T
ORNAMENTAL rZNCE. t' - 7
¦ EUS STOP
n DGMTPOLE
-o- LfTiLiTY POLE
^ ClGN
D FIRE KY3RANT
MOTES
AT PRESENT ALL =WWWAY TREES ARE CON30ERED MEW UNTIL REVIEW WITH JOE LtCA=fTHr'
NEW PARKWAY TREES WILL O0NS15T CF THE FOLLCWING CyLTiVARS. MOT EXCEEDING IC% FOR ANY GENERA. CATALPA SPECrGGA. CELTIS OCCfrENFALfS, GINKGOE-iLOBA (FRU1TLE3S CALTCA.S3 ONLYL GYW^CLADUS CtttCUS, VACLfRA POMIFERA (fTUJm.E5S. IXORtESS CLILTFVARS ONLY! OUERCU3 BrOLCfl. OUESCUS ROSfJR, OJEfvCUG MJE-Eri5ERGIl, QAJERCUS UACF.OCARPA. RQBIHJA PSELOOACAOA CHCAGO EL.UES ONLY. TAXQ3UM OIST1CHJU GHWCE ERAVE. ULMJS AJVcRICANA JEFFERSON. MEW HAP.MONY. PRAIRIE EXPEDfTIOi, AUD PWICSTON. UUWS VINOR NEW rtCRiZOM AMD =-ATRK3T
IfYTERNAL TREES ARE CURRENTLY ASSUMED AS NEW AND WILL DE IN CQURJAnCE WITH THE GCLO ftTTri NO GEJHERA REPRESENTING MOTE 7MAS \e.\ PROJECT MX
1 CURRENTLY GhADE TRESC A3E PROPOSED ALONG PARKWAY.
rtOViEVER, IF POWERUNES AHE TO REMAIN. A BUREAU OF FORESTRY A=«ROVED ORMAMENTAl EPECfnS WILL EE USED
JPSTC Design- Build Agreement
Exhibit 3 - City Approved Design Documents
EXHIBIT 3 - CITY APPROVED DESIGN DOCUMENTS
[To be incorporated, by reference, upon approval by City of Design Documents prepared by Design-Builder under the terms ofthe Agreement.]
JPSTC Design- Build Agreement
Exhibit 3 - City Approved Design Documents
EXHIBIT 4 - CITY PROVIDED SITE INFORMATION IPS ! CAMPUS - 4301 W. CHICAGO AVE. CHICAGO IL
'•i'v\... Description. ;^ ' Datej- ; Source
Environmental Reports
Phase II Environmental Assessment-Chicago Northwestern Railroad Property Chicago, Illinois August 1991 RFQ Exhibit A-Attachment 1.1 & RFP Vol. Ill
Phase 1 Environmental Assessment-Former 40lh Street Railroad Yard May 11, 1998 RFQ Exhibit A Attachment 1.1
Phase II Limited Subsurface Soil Investigation -4301 West Chicago Avenue Chicago, Illinois October 17, 2007 RFQ Attachment 1.1 to Exhibit A
4301 W Chicago Ave Phase II ESA January 12, 2018 RFP Vol. Ill
4301 W Chicago Ave Phase 1 ESA December 6, 2017 RFP Vol. Ill
Geotechnical Reports
Boring Locations Site Plans 1998 April 29, 1998 RFQ Exhibit A-Attachment 1.2 & RFP Vol. Ill
Preliminary Report of Soils Exploration - SWC of Kilbourn Ave. and W. Chicago Avenue Chicago, Illinois April 29, 1998 RFQ Exhibit A-Attachment 1.2 & RFP Vol. Ill
Letter Addressing Shallow Foundation Systems May 18, 1998 RFQ Exhibit A-Attachment 1.2
Soil Exploration and Analysis for Preliminary Site Development - Chicago Police & Fire Training Campus, Draft August 28, 2017 RFQ Exhibit A-Attachment 1.2
JPSTA Campus Geotechnical - Final Version November 6, 2017 RFP Vol. Ill
Surveys
Title Survey - 4301 Chicago Ave - Revised July 2017 July 6, 2017 RFP Vol. Ill
Title Survey - 4301 Chicago Ave - July 2012 July 9, 2012 RFP Vol. Ill
Topographic Survey -4301 W. Chicago Ave - Sheet 1 December 18, 2017 RFP Vol. Ill
Topographic Survey -4301 W. Chicago Ave - Sheet 2 December 18, 2017 RFP Vol. Ill
Topographic Survey -4301 W. Chicago Ave - Sheet 3 December 18, 2017 RFP Vol. Ill
Utility Atlas Pages
Water Atlas Exhibit October 18, 2017 RFP Vol. Ill
Sewer Atlas Exhibit October 18, 2017 RFP Vol. Ill
PS TC Design- Build Agreement
Exhibit 4 - Citv Provided Site Information
EXHIBIT 5 - REQUEST FOR PROPOSALS
REQUEST FOR PROPOSALS [INCORPORATED BY REFERENCE]
Request for Proposals ( R FP): Design and Build of Joint Public Safety Training, Academy
Issued on May 31, 2018
And available on Chicago Infrastructure Trust Website at:
JPSTC Design- Build Agreement
Exhibit 5 - Request Tor Proposals [Incorporated by Reference]
EXHIBIT 6 - PROJECT SCHEDULE
Joint Public Safety Training Center — Schedule
A S C M f.) J F M A >.( J J /i S O N D
(ntp)design phase
* Site Due , Diligence & Programming
f NTp \ GONStRUGJIp^-R .
Site
Construction
JPSTC Design- Build Agreement Exhibit 6 -Project Schedule
EXHIBIT 7 - GUARANTEED MAXIMUM PRICE ITEMIZED BUDGET
Preliminary GMP Breakdown
Direct Costs , $63,355,000
Contingency $5,000,000
Soft Cost Estimate $1,955,000
Design Phase Compensation $5,525,000
General Conditions/General Requirements $5,950,000
Design Builder's Fee $3,215,000
Guaranteed Maximum Price (GMP) $85,000,000
JPSTC Design- Build Agreement
Exhibit 7 - Guaranteed Maximum Price Itemized Budget
EXHIBIT 8 - KEY PERSONNEL
Denise Casalino Managing Director
Andrew Hellermann Project Director
Frank Louis Design Manager
Steve Loomis Public Safety Program
Knut Olberg Senior Project Manager
Ross Wimer Project Design Principal
KC Forman Senior Project Manager
Terry Hellmich Chief Estimator
Scott Giba Senior Project Manager
Tom Koob Construction Site Superintendent
Mejai Dyson Deputy Construction Manager
Slyvester Blue Senior Superintendent
JPSTC Design- Build Agreement Exhibit 8 - Kev Personnel
EXHIBIT 9A - DESIGN SERVICES
I. JPSTC Project Design Services Overview
Exhibit 9A is designed to provide additional detailed information pertaining lo the Design-Builder's Design Services responsibilities as summarized in Article 3 Section 3.01 of this Agreement. In general, Design Services includes all professional services provided by the Design-Builder needed for the creation of any plans, specifications, drawings, or reports needed to complete any permit, bidding, and/or construction documents, needed to deliver the Project as per the terms ofthe Agreement. Design Services also includes any construction administration services provided by architects and engineers during construction. To further clarify this includes work provided by: i) direct employees of the Design Builder and ii) subcontracted professional architecture and engineering services. It does not include third-party site investigation services such as surveying, geotechnical analysis, and environmental investigations; those costs are reimbursable to the Design-Builder (without mark-up), are included within the GMP, and are not part of the Design services maximum defined in Section 8.2.1.
Though most Design Services will be provided during the Design Phase that commences with the City issuing a written Notice to Proceed with Design Phase, pursuant to Section 3.1.1, certain Design Services were provided prior to the Effective Date of this Agreement, and some will be provided after the Construction Phase commencement [Section 3.1.4]. Total compensation for Design Services is pursuant to Section 8.2.1. A more detailed'description of the types, and anticipated sequence of Design Services, along with Design Deliverables milestones are described below. References to percentages, listed below, represent the percent completion of Design Services for purposes of calculating maximum payment in the event the City exercises its right of early termination, as such payment is further described in Section 10.1 ofthe Agreement.
It is mutually understood and agreed that to inform the delivery of Design Services the Design-Builder will utilize a limited amount of construction personnel time and General Condition resources as Pre-Construction Services, as described in Exhibit 9B. Pre-construction services are not included in the Design Services percentages listed below.
II. Design Services Milestone Stages
PROGRAM CONSULTING AND INITIAL SCHEMATIC DESIGN 3.62% As part ofthe Design Services, the Design-Builder is responsible for performing an evaluation of the City's existing public safety training facilities coupled with a review of the City's overall program for training public safety personnel; (new recruit/cadet, in-service, and pre-promotional) both current training and anticipated future training needs. The results of that investigation/evaluation and the Design Builder's City-wide facility recommendations are documented in Exhibit 1 - City of Chicago Public Safety Training -Master Program Plan. In addition, the Design-Builder's Project Program for the 30-acre campus located at 4301 W. Chicago Ave, is documented in Exhibit 2 - JPSTC Schematic Designs and Project Descriptions. This work was completed in advance ofthe Effective Date of this Agreement but is included within the Design Services described in the Agreement.
14
JPSTC Design- Build Agreement Exhibit 9B - Preconstruction Services
FULL SCHEMA TIC DESIGN 14.38%
These Design Services included reviewing all the information provided by the City in the RFP, to ascertain any additional information the Design-Builder requires in order to fulfill the requirements ofthe Project Program in the performance ofthe Design Services. It anticipated the Design-Builder will do further third-party site investigation work and Pre-Construction Services described in Exhibit 9B. The Design-Builder must also provide to the City a preliminary evaluation of the site with regard to utilities, soil conditions (both environmental and geotechnical), access, traffic, drainage, parking, building placement and other considerations affecting the building, the environment and energy use, as well as information regarding applicable governmental laws, regulations and requirements.
As part of the schematic design phase of Design Services, the Design-Builder is responsible for preparing and finalizing Schematic Design Documents for the City's written approval. These documents will be based on and provide further detail to the information included in the agreed upon Exhibit 2, along with any subsequent information obtained from Pre-Construction services or provided by City stakeholders during the full development ofthe Project's schematic design. The Schematic Design Documents include drawings, outline specifications and other conceptual documents illustrating the Project's basic elements, scale, and their relationship to the Project site. One set of these documents shall be furnished to the City. When the Design-Builder submits the Schematic Design Documents, the Design-Builder shall identify in writing all material changes and deviations that have taken place from the Design-Builder's initial schematic concepts, schedule and cost estimate as described in Exhibit 2, Exhibit 6 & Exhibit 7. The Design-Builder shall update the preliminary schedule and cost estimate based on the Schematic Design Documents. One full size set of these documents, and a complete digital version, must be furnished to the City for the Project.
DESIGN DEVELOPMENT 25%
Upon City acceptance ofthe Project's Schematic Design Documents, the Design-Builder is responsible for preparing Design Development Documents based on the approved Schematic Design Documents. The Design Development Documents shall further define the Project including drawings and outline specifications fixing and describing the Project size and character as to site utilization, and other appropriate elements incorporating the structural, architectural, mechanical and electrical systems. When the Design-Builder submits the Design Development Documents, the Design-Builder shall identify in writing all material changes and deviations that have taken place from the Schematic Design Documents. One full size set of these documents, and a complete digital version, must be furnished to the City for the Project.
PERMITING / UTILITY COORDINATION / BIDDING 15%
Design-Builder shall be responsible for providing the professional services and required documents pertaining to permitting, utility coordination and the solicitation of Subcontractor bids for all needed aspects of the Work
The Design-Builder shall submit for the City review and record Permit/Bidding design documents based on the approved Design Documents for the Project. The Permit/Bidding documents shall set forth the requirements for construction ofthe Work in sufficient detail to: i) obtain regulatory entitlements (e.g. zoning approvals, building permits, etc.), ii) utility connection approvals, and iii) solicit competitive bids for subcontracted Work. The Permit/Bid
JPS TC Design- Build Agreement Exhibit 9B - Preconstruction Services
documents shall consist of drawings and specifications in accordance of with what is required to demonstrate to reviewing agencies that the Project complies with local, State and Federal codes, laws and regulations enacted at the lime of their preparation. The Design-Builder shall identify in writing any and all material changes and deviations that have taken place from the Design Documents as a result of any comments and/or corrections received after review by regulatory agencies or in response to Utility company requirements and/or Subcontractor bidder requests for clarification. Once the Permit/Bidding documents have been revised to achieve necessary permits, and have been coordinated with all applicable utilities, one full size set of these documents, and a complete digital version, must be furnished to the City for the Project.
CONSTRUCTION DOCUMENTS 20%
The Design-Builder shall submit for the City's written approval Construction Documents based on the approved Design Documents and the Permit/Bidding final documents. The Construction Documents shall set forth in detail the requirements for construction of the Work, and shall consist of drawings and specifications based upon local, State and Federal codes, laws and regulations enacted at the time of their preparation and Construction of the Project. When the Design-Builder submits the Construction Documents, the Design-Builder shall identify in writing any and all material changes and deviations that have taken place from the Design Documents. Construction shall be in accordance with these approved Construction Documents. Two sets (full size) of these documents plus a complete digital copy shall be furnished to the City prior to issuance by the City ofthe Notice to Proceed to the Construction Phase.
ENVIRONMENTAL AND SUSTAINABILITY SERVICES 5%
As part of the Design Services, the Design-Builder is responsible for ensuring Project design incorporates green, energy efficient, and sustainable building systems and materials and utilizes construction best practices as well as achieve basic LEED Certification, where applicable, or equivalent certifications for similar use type.
CONSTRUCTION SERVICES 12%
The Design-Builder's architect/engineering team serves as an 'overseer' of the project to ensure that it is built according to the Construction Documents. These responsibilities require periodic site visits to keep track of the project's progression. In addition the Design-Builder's design team is responsible for answering Requests For Information (RFI) about interpretation ofthe design documents or other questions that may arise during construction. Additionally, the architect/engineer will review subcontractor provided shop drawings, product samples and submittals to ensure that the materials and specifications are upheld. If any changes are needed, the architect provides documentation which goes into the project records.
CONTRACT ADMINISTRATION 4%
Throughout the Design Phase, the Parties shall meet, at a minimum, twice weekly, or more often, as deemed necessary, in order that the Design-Builder may complete the Design Phase deliverables by the milestone dates established in the Project Schedule. The Parties acknowledge the intent that the Design Phase proceed iteralively. and that input ofthe City will be provided on an ongoing basis, such that upon submission ofthe Design Documents by Design-Builder for approval by the City, the City's requirements, as set forth in (and as may be subsequently
JPSTC Design- Build Agreement Exhibit 9B - Preconstruction Services
refined), the Project Program, as well as the Agreement, will have been addressed and met within the Design Documents.
CLOSE-OUT SERVICES 1%
As part ofthe Design Services, the Design-Builder is responsible for compiling, and reviewing all required Project close-out documentation to achieve Project Acceptance. This includes all as-built drawings. Two complete sets (full size) of these close-out as-built final drawings plus a complete digital copy shall be furnished to the City prior to issuance by the City of Project Final Acceptance.
III. Design Services Deliverables
DESIGN DOCUMENTS
The Design-Builder shall submit for the City's review, approval and/or records the various Design Documents for the Project as described above Exhibit 9A Section II.
PRELIMINARY SCHEDULE The Design-Builder shall prepare a preliminary Project delivery schedule that provides details of the anticipated design development phases. The City shall provide written approval of milestone dates established in the preliminary schedule of the Work. The schedule shall show the activities of the City, the Architect/Engineer and the Design-Builder necessary to meet the City's completion requirements. The schedule shall be updated periodically with the level of detail for each schedule update reflecting the information then available. If an update indicates that a previously approved schedule will not be met, the Design-Builder shall recommend corrective action to the City in writing.
SCHEDULE OF WORK
The Design-Builder shall prepare and submit a Schedule of Work for the City's acceptance and written approval as to milestone dales for performance of Construction Services, which milestone dates shall also include up to 5 additional updated submissions MBE/WBE utilization compliance plan Schedule D and supporting Schedule Cs, in conformance with Exhibit 6, prior to City's issuance of the NTP to the Construction Phase. This schedule shall indicate the dates for the start and completion of the various stages of the Work, including the dates when information and approvals are required from the City. The Schedule of Work may only be revised pursuant to Article 9 or via a Contract Modification as required by the conditions of the Work and subject to the written approval of the City. Procedures for Contract Modifications are in Exhibit 19. Upon the written approval of the City, the Schedule of Work, as may be modified, will be deemed incorporated in the Agreement in Exhibit 6. The Schedule of Work shall allow for a reasonable length of time for City approvals, commensurate with the nature of the Work or the Deliverable for which the City approval is required.
Baseline Schedule of Work. The baseline Schedule of Work shall be in the format of a critical path method precedence diagram (both bar chart and graphic network formats). The City will review the baseline Schedule of Work and provide comments regarding the logic, sequence, duration of work activities or level of detail of the number, description and/or division of work activities. The Design-Builder shall have ten (10) days from the receipt ofthe City's comments to revise and resubmit the baseline Schedule.
17
JPSTC Design- Build Agreement Exhibit 9B - [^reconstruction Services
PRELIMINARY BUDGET ESTIMATE The Design-Builder shall prepare a preliminary budget estimate for the Construction Phase, utilizing area, volume or similar conceptual estimating techniques, in order to prepare a budget incorporating estimated costs for major cost categories, as mutually agreed by the Parties. The estimated budget shall be consistent with the JPSTC GMP. The estimate shall be updated periodically with the level of detail for each estimate update reflecting the information then available.
DETAILED PROJECT BUDGET
Upon acceptance ofthe Design Documents and prior to the City's issuance ofthe Notice to Proceed to the Construction Phase the Design-Builder will submit to the City the Detailed Project Budget in the form of a schedule of values that lists and itemizes all aspects of the Project Work whose total shall not exceed the GMP. The Project Budget shall include all Project costs including all design and soft costs, permitting costs, utility connections, contingency, General conditions/General Requirements and all direct cost of Work .
JPSTC Design- Build Agreement Exhibit 9B ['reconstruction Services
EXHIBIT 9B - PRECONSTRUCTION SERVICES
Pre-construction services are construction General Condition services provided prior to the Notice to Proceed with Construction. Cost incurred in performing these Preconstruction Phase services will be paid during the Design Phase services and in accordance with General Conditions and General Requirements section of this agreement. The amounts paid for Preconstruction Phase services will be deducted from the GMP General Conditions and General Requirements max of 7%. However, in no case will the cost of Preconstruction Phase Services exceed $500,000.
The following services are included in the Pre-Construction Phase Services:
Review drawings and specifications during their preparation and provide recommendations regarding constructability, value engineering, construction processes, construction phasing, scheduling, and cost estimating.
Solicit, award, and coordinate MEP or specialty trade design/build services as necessary.
Develop Building Information Modeling (BIM) plans.
Perform Structural, Enclosure, and MEP system analysis necessary to determine the most cost-effective appropriate system for the building.
Preliminary conceptual estimates for the structural, infrastructure, and architectural components of concept designs for the Pro ject.
Detailed cost estimating in support of design analysis of primary structural systems and architectural systems as directed by Owner.
Participation in schematic design and design development activities in preparation for Construction bidding.
Perform value engineering during both the schematic and design development phases.
Scope of Work Packages -Advise on the division ofthe Project into individual scope of work packages for various categories of work and make recommendations as required so that the work ofthe trade contractors is coordinated; all requirements for the Project have been assigned to the appropriate trade contractor, and proper coordination has been provided for phased construction.
Accounting and Controls - Coordinate with Owner to establish accounting procedures and program controls.
Project Management - Coordinate with Owner and Designer, as required, lo develop and establish common procedures for the management of design reviews, design addenda, RITs. change orders, daily reports, pre-installation meetings and other project management issues.
JPSTC Design- Build Agreement Exhibit 9B - Preconstruction Services
Site Access, Security and Logistics- Prepare recommendations and information regarding the assignment of responsibility for temporary Project facilities, parking areas, equipment, general condition materials and services for common use of the trade contractors; and, responsibility for site security, lay down, staging, assembly and storage locations.
Safety - Prepare a site use plan for common construction operations, allocating space for storage, parking, temporary facilities, etc. for the Project. Plan for security procedures to control the common access to and the activities performed on the site.
MBE/DBE/WBE/ Workforce Development Compliance Programs - Develop a strategy to achieve the goals as outlined in this agreement. Perform necessary outreach events and notices to ensure maximum M/WBE contractor support. Engage outreach consultants as may be necessary to assist in this process.
JPSTC Design- Build Agreement Exhibit 915 - Preconstruction Services
EXHIBIT 10A - DESIGN COMPENSATION
: Contract Rate/;
Managing Director $ 300.00
Pricipal-in-Charge $ 289.00
Associate Principal $ 215.00
Sr. Project Manager $ 199.00
Project Manager $ 169.00
Project Manager Assistant $ 132.87
Sr. Architect/Interior Designer $ 199.00
Architect/Interior Designer $ 174.07
Assoc. Architect/Interior Designer $ 129.00
Jr. Architect/Interior'Designer $ 101.97
Sr. Landscape Architect $ 174.07
Landscape Architect $ 149.00
Assoc. Landscape Architect $ 132.87
Jr. Landscape Architect $ 99.00
Sr. Structural Engineer $ 189.00
Structural Engineer $ 155.00
Assoc. Structural Engineer $ 119.00
Jr. Structural Engineer (EIT/FE Level) $ 99.00
Tactical Training Architect $ 299.00
Sr. MEP Engineer $ 189.00
Sr. Fire Protection Engineer $ 189.00
MEP Engineer $ 174.07
Fire Protection Engineer $ 174.07
Associate MEP Engineer $ 149.35
Associate Fire Protection Engineer $ 149.35
Jr. MEP Engineer (EIT/FE Level) $ 101.97
Jr. Fire Protection Engineer (EIT/FE Level) $ 101.97
Sr. Civil Engineer $ 175.00
Civil Engineer $ 154.50
Assoc. Civil Engineer $ 112.27
Jr. Civil Engineer $ 99.00
Sr. Geotechnical Engineer $ 245.00
Geotechnical Engineer $ 189.00
Assoc. Geotechnical Engineer $ 139.00
Jr. Geotechnical Engineer $ 109.00
Sr. Environmental Engineer $ 215.00
Environmental Engineer $ 159.00
Assoc. Environmental Engineer $ 129.00
Jr. Environmental Engineer $ 99.00
Surveyor $ 180.00
1ntern $ 60.00
Sr. Administrative Support $ 99.00
Administrative Support $ 80.00
Sr. CADD Technician $ 125.00
CADD Technician $ 99.00
21
JPSTC Design- Build Agreement Cxhibit 9B - Preconstruction Services
CONSTRUCTION COIVIPENSATION
COST OF THE WORK AND DESIGN-BUILDER'S FEE
General Conditions Costs. The City shall compensate the Design-Builder for documented General Conditions Costs based on the hourly rates provided in Exhibit 10B. along with documented actual expenses directly incurred in the performance ofthe General Conditions. General Conditions will not be subject to the Design-Builder's Fee. The General Conditions Costs consist of:
labor costs incurred by Design-Builder for all its direct employees overseeing and/or performing portions ofthe Work;
incurred costs necessary for telecommunications, computers, office equipment and supplies, reproduction costs, Project communication and in-house produced signage;
Soft Costs. The City shall compensate the Design-Builder for documented Soft Costs invoiced at actual cost with no Design Builder's Fee. Reimbursable Soft Costs incurred by the Design-Builder include the following:
premiums for all required and City approved insurance and performance and payment bonds, including any additional premium incurred as a result of any increase in the GMP; fees and assessments for necessary building permits and other permits, licenses and inspections for which the Design-Builder is required to pay.
Direct Costs. The City shall compensate the Design-Builder for documented payments made by the Design-Builder to Subcontractors for Work performed under this Agreement ("Direct Costs") including:
labor;
materials and equipment, including any necessarily incurred sales, use, gross receipts or other
taxes, tariffs or duties for which the Design-Builder is liable;
stored materials, with the Owner's prior approval, subject to Section 10.1.8;
costs for public utility connections or modifications;
General Requirements Costs. The City shall compensate the Design-Builder for documented General Requirements Costs, plus the Design-Builder's Fee. General Requirements Costs includes all documented payments made to third-party vendors for the provision of following services or materials:
security;
barricades and fencing; temporary roads; temporary utilities;
temporary field offices, portable toilets, dumpsters. temporary stairs, temporary signage and storage;
laborers and cleanup; safety (material, training, incentives); fire protection and extinguishers; trucks (equipment & fuel);
22
JPSTC Design- Build Agreement Exhibit 9B Preconstruclion Services
outreach activities and workforce development consultants;
testing laboratory fees, except those related to defective or nonconforming Work;
hand tools not owned by the workers that are used or consumed in the performance ofthe Work,
less salvage value or residual value; and cost less salvage value on such items used, but not
consumed that remain the property ofthe Design-Builder;
rental charges from unrelated third parties for all necessary temporary machinery and equipment, exclusive of hand tools owned by workers, used at the Worksite, including installation, repair and replacement, dismantling, removal, maintenance, transportation and delivery costs; Project communications provided by third-party vendor.
PORTIONS OF WORK NOT SUBJECT TO DESIGN-BUILDER FEE Design-Builder shall be entitled to charge a flat percentage fee of 4.5% on the Cost of Work described above, which comprises profit and overhead to the Design-Builder. For clarification, the items below are not included in the Cost of Work for purposes of calculation of the Design-Builder Fee: -Design Services fees -General Conditions Costs -Soft costs
EXCLUSIONS FROM COST OF THE WORK
The following will be excluded from Cost ofthe Work, and the City will make no direct payment for these items:
Expenses of Design-Builder's principal office and offices other than the Worksite offices or as expressly included in Cost of Work, described above.
Overhead and general expenses, except as may be expressly included in Cost of Work, described above.
(iii) Design-Builder's capital expenses, including interest on Design-Builder's capital employed
for the Work.
23
JPSTC Design- Build Agreement Exhibit 9B - Preconstruction Services
Project Executive $ 175.00
Project Director $ 165.00
Sr. Project Manager $ 155.00
Project Manager $ 135.00
Assistant Project Manager $ 115.00
Project Engineer $ 85.00
Sr. Superintendent $ 145.00
Site Superintendent $ 135.00
Assistant Superintendent $ 110.00
Safety Director $ 110.00
Chief Estimator $ 145.00
Estimator $ 135.00
Project Accountant $ 75.00
Certified Payroll Specialist $ 75.00
Intern $ 40.00
BIM/VDC Manager $ 125.00
BIM/VDC Engineer $ 85.00
Scheduling Manager $ 145.00
Project Scheduler $ 130.00
Pre-Construction Manager $ 155.00
JPSTC Design- Build Agreement
Exhibit I I - Online Economic Disclosure Affidavits
EXHIBIT 11 - ONLINE ECONOMIC DISCLOSURE AFFIDAVITS
JPSTC Design- Build Agreement
Hxhibit I I - Online economic Disclosure Affidavits
EXHIBIT 12 - DESIGN BUILDER'S WASTE REMOVAL AFFIDAVIT
AFFIDAVIT REGARDING IDENTIFICATION OF ALE WASTE AND MATERIAL HANDLING AND DISPOSAL FACILITIES
Contractor to show here the name and location ofthe waste and material recovery facilities he/she is proposing to use for the Project. Complete one page per facility:
SPECIFY THE TYPE OF MATERIALS TO BE DISPOSED OF:
LEGAL NAME OF LANDFILL/DISPOSAL SITE:
(The Contractor will provide to the City copies of all dump tickets, manifests, etc.)
LOCATION ADDRESS:
PHONE:
CONTACT PERSON:
Disposal site submitted shall be of sufficient capacity as to ensure acceptance of the volume of Construction and/or Demolition Debris received for the period of this Contract. These disposal sites must meet all zoning and other requirements that may be necessary.
If requested by the Chief Procurement Officer, the Contractor must submit copies of all contractual agreements, permits and/or licenses for those waste and material recovery facilities proposed by the Contractor.
26
JPSTC Design- Build Agreement
Exhibit 12 - Desiiin Builders Waste Removal Affidavit
EXHIBIT 13 - PREVAILING WAGE RATES
JPSTC Design- Build Agreement Exhibit 13 - Prevailum Wasic Rates
OJ JZ
4-*
O
OJ 4—
CuO Ol
c c
•c U_ CQ
ro
OiOiO'O O'loo.o.o.o-rMjo o i o ; o : o : o ¦ o o-olojoioiifliolo
I
I i
| CNJ ro
! CD : UD
! d d
I
...I...
O ! O ! rH i o i O ; O
H:r^'i/)|mHlrfiiooiH;i/i;'jlr^.i/irN:m;(Njcri!HiN !:;r^:oo:rvJ:L/^:rg|r\i:a3iU3|cn;oOirO:r^|UDjroi'^!kDir~-
I
o|o:m;rs,m;H;ojolo.o
I
o : o j o : o ; lo
! ! ! led
! 1 ' ro
c I
o
ro u ro >
c o
'to
c
QJ
o
X
lo i cn ld r-~
d T-i
O cm
o i o : lo i o i o
CO , LO I LO
LO
co
l I ro
] cn o ! ro
cn i cm
O lo
cn : O ro !
cn
ro
^* I LO
I i
ro
ro
LO
LO
i I
_J !_.
rM i rM 1 rM
I I
O ' o 1 o
CD ! co i r^
H | fN ! LO
cn ¦ i "3"
ro rM
rM cn
rM !
O
I i i
00 rM r^
i i
rM rM
O
l i
LO
cm i rM j rM j rM i rM
LO
CD
LO
CD
LO
LO
CO
cri
I !
cm 1 rM rM
ZJ CO
ro lo
LO I LO i LO
r-i ! r-J 1 -i
I
lo rM
I !
c ro
ai
DO
ro
£ 5
ro CQ
_ro U
CT) i LO t~h j ro
ld i r-°
cn : cn i cn j lo
CD | CD I CD | ^
cDjcnico^lLOLOco cn'^i^^irOjcqoq
LO j LO I LO I *—I LO
LO i CD rM j lo
Lri|cniro:Lo:o;LOico:^rioiro
"3-|rO:«3-; :ro i ro I
lo i co
LO
I
LO
ro
CO ro LO
r>. I lo ro ro
LO LO
LO LO
ro i -sT
LO I LO
LO
CO
LO
ro
LO
H i <
c 1 o
W , _ ;
cc ¦<¦¦< <
u
C3
CQ CO
< <
LO LO' <
o o ^
QJ
¦a
ro
I- <
I— I— CC
LO LO uj
HI Ul j
CQ
CQ CQ —
LO LO O
" <
Q < i CQ
1<_L<
! i
-_i:_i;Oj_j!0!0!_ji_i
< i co J co : < < <'<:co!-I-
I
< <
< <
cc
o
< < ¦ < " h-
CJ Z) cc
<
cc
LU
X
LO
< < <
£ i
a cc
lu 13
^ cc cc
a ^|910|j o. o.
CJ CJ CJ
cc cc
l = :, = ! = LI = i -¦ = ¦ = .=
< < <:< <<<<<<<<
LO : CC LU : X . LO
cc cc ¦ cc
13 C3
LU LU
13 C3
13
LU 13
LO
o g
U U
CC ^
V 1 t I
— CC
o
LO <
O u-
1/1 LU
< =!
CC CL
u
cc \-
CJ LU
CC ¦ UA|1010|LO
<
CJ
cc \—
V- < CJ >
cc
'¦ I— LO
13
cc
UO
I
<
cc
<
cc
LU
r-
<
LU
LU LU _1 CO CC
<
* O
I i I CJ
M
¦=1 >~
I— < cc
LU
o_ O
cc
CC LU
X r-<
< cc
LU
o_ O
< CC LU CL
O
O cc
CJ CJ
X CO CO CJ cc cc
< < -
<
S O j "
U U LU LU
LU
CC|109|O
-i i- °|910|131? u
O ; CO ! O I O
o |
' I :
OjO;0:0:OiO:0 0: O i O j O : O | O : H ; O i O
(M 00
LO i LO LO ! LO
odd
CO . m j ro O fN ! r-i
I I
^ lo ; r~- 1 o ro ' j m
Hrfl.tOiOcoi/l:rM|iD ro lo ld ; ld ro cn | oo
r-i: d ¦ «-i ; d d did
i I
o o o OOOOlO
LO LO ^ O rM ro
o I *t !
ITl ! LO
d d
lo cn ld
^ 00 00
fN rM . fN ; rM : fN
fN i fN fN fN
LO LO LO r-1
LO I LO
r-i! r-i
LO LO r-1 : r-i
lo i lo in : rM ! lo lo
r-i ' r-i r-i r-i i r-i
in i in
CO LO
cn ! r-- i
<3- oo cn
LO ; 00 ]
^ | 00
¦3- «tf
LO !
lo \ rsi
CD I oi r* : ro
LO LO
^jod
LO j LO i
fN i CD i
O j ro J in I I
rn i r~ I cn >* ! oo cn
Ul CO rf
LD ! r-i | LO ! CD i r^ ^ j
rH ! fN rO
>- >-
X j X
_l : Q —1 _l
<: co <
Q Q
i I i
CO ' CO i
Q Q ! Q Q
1 ; —I ; 1 |910|co ' co : co . co
_i O i Q ; Q : O
—I —I ! —1 : —I : _J
< ! co : CO ; co co
>-
X
<'<_!cc cc cc . cc j cc cc cc
LU LU LU . LU ¦ LU LU LU
LU LU : LU LU i LU LU LU
(3 C3 C3 (3 i (3 C3
Z Z \ Z Z Z Z
LU LU LU ¦ LU LU LU LU
13 13 . 13 13 ' (3 (3 13
I- h- 1- h- \- I- h-<<<<<<< cc cc cc cc CC cc cc
n I iii 11 I iii hi iii iii O- Q_ Q_ CL Cl Q_ Q_
O O O O O O O
cc cc
<:< < < . < < < < < < < < < < < < <
cc : ------
X
LO
o
LO
<
o
CC
O I— u
LO
Z
^2 cc
LO LU CC >
cc Q
cc
LU
13
z <
X
z
C3
cc O
O
LO <
O cc
I— CC CC CC
CC LU
cc
LU LU LU LU
cc 2
CC LU CO
I
o_
S > > >
cj
cc
LU U_
O
o
Cn cc cc cc
< h- h-Z ^ ^
LO <
Q Q Q
o
LO
M M LL. U CJ U
< =>
CC cc
I—
<
CL
<
CL
cc
o
cc cc
I—
Z
cc cu
Q.
CC CL LO
CC LO LO
o,o'oh;o:o
CO ;
uo ! uo ; co ! uo j lo *""!! *~! rsi d | d o j o
O I o
00
LO l/l
^ cd
ro rH
CO LO
«? O CD rH
cn -3-
rA "0
rsi
to CC
CU 00 ro
00 c
'ro > ai
ro
rH
J2
? 5 5 5
CC CC
LU LU
o
^ \Z CL
> >
o: it a: tc tc
Q O Q Q O
^ ^ ^
cc
U U C) L) U ^|109|id z> r> 3 u
a: tc D
I— r- h-
EXHIBIT 14 - INSURANCE REQUIREMENTS AND CERTIFICATE
Department of Fleet and Facility Management Joint Public Safety Training Campus
A. INSURANCE REQUIRED - DEVELOPER
Developer must provide and maintain at Developer's own expense or cause to be maintained, until Contract completion and during the time period following completion if Developer is required to return and perform any additional work, services, or operations, the insurance coverages and requirements specified below, insuring all operations related to the Contract.
Workers Compensation and Employers Liability
Workers Compensation Insurance, as prescribed by applicable law covering all employees who are to provide a service under this Contract and Employers Liability coverage with limits of not less than $500,000 each accident, $500,000 disease-policy limit, and $500.000 disease-each employee, or the full per occurrence limits ofthe policy, whichever is greater.
Developer may use a combination of primary and excess/umbrella policy/policies to satisfy the limits of liability required herein. The excess/umbrella policy/policies must provide the same coverages/follow form as the underlying policy/policies.
Commercial General Liability (Primary and Umbrella)
Commercial General Liability Insurance or equivalent must be maintained with limits of not less than $1.000,000 per occurrence, or the full per occurrence limits of the policy, whichever is greater, for bodily injury, personal injury, and property damage liability. Coverages must include but not be limited to the following: All premises and operations, products/completed operations, separation of insureds, defense, and contractual liability (not to include Endorsement CG 21 39 or equivalent), and means, methods, techniques, sequences and procedures.
The City must be provided additional insured status with respect to liability arising out of Developer's work, services or operations performed on behalf ofthe City. The City's additional insured status must apply to liability and defense of suits arising out of Developer's acts or omissions, whether such liability is attributable to the Developer or to the City on an additional insured endorsement form acceptable to the City. The full policy limits and scope of protection also will apply to the City as an additional insured, even if they exceed the City's minimum limits required herein. Developer's liability insurance must be primary without right of contribution by any other insurance or self-insurance maintained by or available to the City.
Developer may
">8
I PS PC Design- Build Agreement
Exhibit 14 Insurance Requirements and Certificate
use a combination of primary and excess/umbrella policy/policies to satisfy the limits of liability required herein. The excess/umbrella policy/policies must provide the same coverages/follow form as the underlying policy/policies.
Automobile Liability (Primary and Umbrella
Developer must maintain Automobile Liability Insurance with limits of not less than $ 1,000.000 per occurrence, or the full per occurrence limits ofthe policy, whichever is greater, for bodily injury and property damage. Coverage must include but not be limited to, the following: ownership, maintenance, or use of any auto whether owned, leased, non-owned or hired used in the performance ofthe work or devices, both on and off the Project site including loading and unloading. The City is to be named as an additional insured on a primary, non-contributory basis.
Excess/Umbrella
Excess/Umbrella Liability Insurance must be maintained with limits of not less than $4.000,000 per occurrence, or the full per occurrence limits ofthe policy, whichever is greater. The policy/policies must provide the same coverages/follow form as the underlying Commercial General Liability, Automobile Liability, Employers Liability and Completed Operations coverage required herein and expressly provide that the excess or umbrella policy/policies will drop down over reduced and/or exhausted aggregate limit, if any, of the underlying insurance. If a general aggregate limit applies the general aggregate must apply per project/location. The Excess/Umbrella policy/policies must be primary without right of contribution by any other insurance or self-insurance maintained by or available to the City.
Developer may use a combination of primary and excess/umbrella policies to satisfy the limits of liability required in sections A.l, A.2, A.3 and A.4 herein.
Professional Liability
When Developer performs work including professional services and/or operations in connection with this Contract, Professional Liability Insurance covering acts, errors, or omissions must be maintained with limits of not less than $5,000,000. When policies are renewed or replaced, the policy retroactive date must coincide with, or precede start of work by the Developer. A claims-made policy which is not renewed or replaced must have an extended reporting period of two (2) years.
Valuable Papers
When any, plans, designs, drawings, specifications, media, data, reports, records, and other documents are produced or used under this Contract, Valuable Papers-Insurance must be maintained in an amount to insure against any loss whatsoever, and must have limits sufficient to pay for the re-creation and reconstruction of such records.
Ii. INSURANCE TO BE PROVIDED - DESIGN ARCHITECT
1) Workers Compensation and Employers Liability (Primary and Umbrella)
29
JPSTC Design- Build Agreement
Exhibit 14 - Insurance Requirements and Certificate
Workers Compensation Insurance, as prescribed by applicable law covering all employees who are to provide a service under this Agreement and Employers Liability coverage with limits of not less than $500,000 each accident; $500.000 disease-policy limit; and $500.000 disease each employee, or the lull per occurrence limits ofthe policy, whichever is greater. Coverage shall include but not be limited to: other states endorsement, alternate employer and voluntary compensation endorsement; when applicable.
Design Architect may use a combination of primary and excess/umbrella policy/policies to satisfy the limits of liability required herein. The excess/umbrella policy/policies must provide the same coverages/follow form as the underlying policy/policies.
Commercial General Liability (Primary and Umbrella)
Commercial General Liability Insurance or equivalent must be maintained with limits of not less than $1,000,000 per occurrence, or the full per occurrence limits of the policy, whichever is greater, for bodily injury, personal injury, and property damage liability. Coverages must include but not be limited to the following: All premises and operations, products/completed operations, separation of insureds, defense, and contractual liability (not to include Endorsement CG 21 39 or equivalent), and means, methods, techniques, sequences and procedures.
The City and other entities as required by City must be provided additional insured status with respect to liability arising out of Design Architect's work, services or operations performed on behalf of the City. The City's additional insured status must apply lo liability and defense of suits arising out of Design Architect's acts or omissions, whether such liability is attributable to the Design Architect or to the City on an additional insured endorsement form acceptable to the City. The full policy limits and scope of protection also will apply to the City as an additional insured, even if they exceed the City's minimum limits required herein. Design Architect's liability insurance must be primary without right of contribution by any other insurance or self-insurance maintained by or available to the City.
Design Architect may use a combination of primary and excess/umbrella policy/policies to satisfy the limits of liability required herein. The excess/umbrella policy/policies must provide the same coverages/follow form as the underlying policy/policies. Automobile Liability (Primary and Umbrella)
Design Architect must maintain Automobile Liability Insurance with limits of not less
than $1,000.000 per occurrence, or the full per occurrence limits of the policy,
whichever is greater, for bodily injury and property damage. Coverage must include but not be limited to, the following: ownership, maintenance, or use of any auto whether owned, leased, non-owned or hired used in the performance ofthe work or devices, both on and off the Project site including loading and unloading. The City is to be named as an additional insured on a primary, non-contributory basis.
30
JPSTC Design- Build Agreement
Exhibit 14 - Insurance Requirements and Certificate
Design Architect may use a combination of primary and excess/umbrella policy/policies to satisfy the limits of liability required herein. The excess/umbrella policy/policies must provide the same coverages/follow form as the underlying policy/policies.
Excess/Umbrella
Excess/Umbrella Liability Insurance must be maintained with limits of not less than $4,000.000 per occurrence, or the full per occurrence limits ofthe policy, whichever is greater. The policy/policies must provide the same coverages/follow form as the underlying Commercial General Liability, Automobile Liability, Employers Liability and Completed Operations coverage required herein and expressly provide that the excess or umbrella policy/policies will drop down over reduced and/or exhausted aggregate limit, if any, of the underlying insurance. The Excess/Umbrella policy/policies must be primary without right of contribution by any other insurance or self-insurance maintained by or available to the City.
Design Architect may use a combination of primary and excess/umbrella policies to satisfy the limits of liability required in sections A.l, A.2, A.3 and A.4 herein.
Professional Liability
Design Architect performing work including professional services and/or operations in connection with this Contract. Professional Liability Insurance covering acts, errors, or omissions must be maintained with limits of not less than $10,000,000 Coverage must include but not be limited to pollution liability if environmental site assessments will be done. The policy retroactive date must precede start of Design related to this Contract. When policies arc renewed or replaced, the policy retroactive date must coincide with, or precede start of Design work. A claims-made policy which is not renewed or replaced must have an extended reporting period of Three (3) years.
Valuable Papers
When any plans, designs, drawings, specifications, media, data, and other documents are produced or used under this Contract, Valuable Papers Insurance must be maintained in an amount to insure against any loss whatsoever, and must have limits sufficient to pay for the recreation and reconstruction of such records
C. INSURANCE TO BE PROVIDED - CONSTRUCTION
1) Workers Compensation and Employers Liability (Primary and Umbrella)
Workers Compensation Insurance, as prescribed by applicable law covering all employees who are to provide a work, services or operations under this Contract and Employers Liability coverage with limits of not less than $1,000.000 each accident, $1.000.000 disease-policy limit, and $1,000.000 disease-each employee, or the full per occurrence limits ofthe policy, whichever is greater. Coverage shall include but not be limited to: other states endorsement, alternate employer and voluntary compensation endorsement; when applicable.
31
JPSTC Design- Build Agreement
Exhibit M - Insurance Requirements and Certificate
Contractor may use a combination of primary and excess/umbrella policy/policies to satisfy the limits of liability required herein. The excess/umbrella policy/policies must provide the same coverages/follow form as the underlying policy/policies.
Commercial General Liability (Primary and Umbrella)
Commercial General Liability Insurance or equivalent must be maintained with limits of not less than $5,000.000 per occurrence, or the full per occurrence limits ol" the policy, whichever is greater, for bodily injury, personal injury, and property damage liability. Coverages must include but not be limited lo, the following: All premises and operations, products/completed operations, (for the full statue of repose following project completion) explosion, collapse, underground, separation of insureds, defense, contractual liability (not to include endorsement CG 21 39 or equivalent), no exclusion for damage to work performed by Subcontractors, any limitation of coverage for designated premises or project is not permitted (not to include endorsement CG 21 44 or equivalent) and any endorsement modifying or deleting the exception to the Employer's Liability exclusion is not permitted. If a general aggregate limit applies, the general aggregate must apply per project/location and once per policy period if applicable, or Contractor may obtain separate insurance to provide the required limits which will not be subject to depletion because of claims arising out of any other work or activity of Contractor. If a general aggregate applies to products/completed operations, the general aggregate limits must apply per project and once per policy period.
The City must be provided additional insured status with respect to liability arising out of Contractor's work, services or operations and completed operations performed on behalf of the City. Such additional insured coverage must be provided on ISO form CG 2010 10 01 and' CG 2037 10 01 or on an endorsement form at least as broad for ongoing operations and completed operations. The City's additional insured status must apply to liability and defense of suits arising out of Contractor's acts or omissions, whether such liability is attributable to the Contactor or to the City. The full policy limits and scope of protection also will apply to the City as an additional insured, even if they exceed the City's minimum limits required herein.
Contractor's liability insurance must be primary without right of contribution by any other insurance or self-insurance maintained by or available to the City.
Contractor may use a combination of primary and excess/umbrella policy/policies to satisfy the limits of liability required herein. The excess/umbrella policy/policies must provide the same coverages/follow form as the underlying policy/policies.
Automobile Liability (Primary and Umbrella
Contractor must maintain Automobile Liability Insurance with limits of not less than $5,000,000 per occurrence, or the full per occurrence limits ofthe policy, whichever is greater, for bodily injury and properly damage. Coverage must include but not be limited to, the following: ownership, maintenance, or use of any auto whether owned, leased, non-owned or hired used in the performance ofthe work or devices, both on and off the
32
JPSTC Design- Build Agreement
Hxhihil M - Insurance Requirements and Certificate
Project site including loading and unloading. The City is to be named as an additional insured on a primary, non-contributory basis.
When applicable, coverage extension must include a) an MCS-90 endorsement where required by the Motor Carrier Act of 1980 and b) pollution coverage for loading, unloading and transportation of infectious waste, chemical waste, hazardous, radioactive and special waste.
Excess/Umbrella
Excess/Umbrella Liability Insurance must be maintained with limits of not less than $45,000,000 per occurrence, or the full per occurrence limits of the policy, whichever is greater. The policy/policies must provide the same coverages/follow form as the underlying Commercial General Liability, Automobile Liability, Employers Liability and Completed Operations coverage required herein and expressly provide that the excess or umbrella policy/policies will drop down over reduced and/or exhausted aggregate limit, if any, of the underlying insurance. If a general aggregate limit applies the general aggregate must apply per project/location. The Excess/Umbrella policy/policies must be primary without right of contribution by any other insurance or self-insurance maintained by or available to the City.
Contractor may use a combination of primary and excess/umbrella policies to satisfy the limits of liability required in sections A.l, A.2, A.3 and A.4 herein.
Builders Risk
When Contractor undertakes any construction, including improvements, betterments, and/or repairs, the Contractor must provide All Risk Builders Risk Insurance at replacement cost for materials, supplies, equipment, machinery and fixtures that are or will be part of the permanent facility/project. Coverages must include but are not limited to, the following: damage to adjoining and existing property, material stored off-site and in-transit, equipment breakdown, earth movement, flood, water including overflow, leakage, sewer backup or seepage, collapse, right to partial occupancy, debris removal, damage resulting from faulty workmanship or materials, landscaping, mechanical-electrical breakdown or failure, testing, ordinance or law for increase cost of construction, delayed completion and loss of income/soft costs, loss of use of property, and extra expense and other consequential loss. The City of Chicago is to be named as an additional insured and loss payee.
The Contractor is responsible for all loss or damage to personal property (including materials, equipment, tools and supplies) owned, rented or used by Contractor.
Owner's and Contractor's Protective Liability
With respect to the operations performed by Contractor, an Owner's and Contractor's Protective Liability policy designating the City of Chicago as named insured must be provided with limits of not less than $2.000,000 per occurrence, combined single limit.
.IPSTC Design- Build Agreement
Exhibit M - Insurance Requirements and Certificate
for losses arising out of bodily injuries to or death of all persons and for damage lo or destruction of property.
Contractors Pollution Liability
When any work or services performed involves a potential pollution risk that may arise from the operations oi'Contractor's scope of services Contractors Pollution Liability must be provided or caused to be provided, covering bodily injury, property damage and other losses caused by pollution conditions with limits of not less than $2.000,000 per occurrence. Coverage must include but not be limited to completed operations, contractual liability, defense, excavation, environmental cleanup, remediation and disposal and if applicable, include transportation and non-owned disposal coverage. When policies are renewed or replaced, the policy retroactive date must coincide with or precede, start of work on the Contract. A claims-made policy which is not renewed or replaced must have an extended reporting period of two (2) years. The City is to be named as an additional insured.
Professional Liability
When Contractors, architects, engineers or other professional consultants perform work, services, or operations in connection with this Contract, Professional Liability Insurance covering acts, errors, or omissions must be maintained with limits of not less than $2,000,000. Coverage must include but not be limited to, pollution liability if environment site assessments will be done. When policies are renewed or replaced, the policy retroactive date must coincide with, or precede, start of work on the Contract. A claims-made policy which is not renewed or replaced must have an extended reporting period of two (2) years.
D. ADDITIONAL REQUIREMENTS
Evidence of Insurance. Developer, Architect and Contractor must furnish the City, Department of Fleet and Facility Management, attn.: Commissioner's Office, Room 300, 30 North LaSalle Street, Chicago, IL 60602, original certificates of insurance and additional insured endorsement, or other evidence of insurance, to be in force on the date of this Contract, and renewal certificates of Insurance and endorsement, or such similar evidence, if the coverages have an expiration or renewal date occurring during the term of this Contract. Developer, Architect and Contractor must submit evidence of insurance prior to execution of Contract. The receipt of any certificate does not constitute agreement by the City that the insurance requirements in the Contract have been fully met or that the insurance policies indicated on the certificate are in compliance with all requirements of Contract. The failure ofthe City to obtain, nor the City's receipt of, or failure to object to a non-complying insurance certificate, endorsement or other insurance evidence from Developer, Architect and Contractor, its insurance broker(s) and/or insurer(s) will not be construed as a waiver by the City of any of the required insurance provisions. Developer, Architect and Contractor must advise all insurers of the Contract provisions regarding insurance. The City in no-way warrants that the insurance required herein is sufficient to protect Developer, Architect and Contractor for liabilities which may arise from
34
JPSTC Design- Build Agreement
Exhibit 14 - Insurance Requirements and Certificate
or relate to the Contract. The City reserves the right to obtain complete, certified copies of any required insurance policies at any lime.
Failure to Maintain Insurance. Failure of the Developer. Architect and Contractor to comply with required coverage and terms and conditions outlined herein will not limit Developer's, Architect's and Contractor's liability or responsibility nor does it relieve Developer, Architect and Contractor of the obligation to provide insurance as specified in this Contract. Nonfulfillment of the insurance conditions may constitute a violation of the Contract, and the City retains the right to suspend this Contract until proper evidence of insurance is provided, or the Contract may be terminated.
Notice of Material Change, Cancellation or Non-Renewal. Developer, Architect and Contractor must provide for sixty (60) days prior written notice to be given to the City in the event coverage is substantially changed, canceled or non-renewed and ten (TO) days prior written notice for nonpayment of premium.
Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions on referenced insurance coverages must be borne by Developer, Architect and Contractor.
Waiver of Subrogation. Developer, Architect and Contractor hereby waives its rights and its insurer(s)' rights of and agrees to require their insurers to waive their rights of subrogation against the City under all required insurance herein for any loss arising from or relating to this Contract. Developer, Design Architect and Contractor agree to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City received a waiver of subrogation endorsement for Developer's, Architect's and Contractor's insurer(s).
Contractors Insurance Primary. All insurance required of Developer, Architect and Contractor under this Contract shall be endorsed to state that Developer's, Architect's and Contractor's insurance policy is primary and not contributory with any insurance carrier by the City.
No Limitation as to Contractor's Liabilities. The coverages and limits furnished by Developer, Architect and Contractor in no way limit the Developer's, Architect's and Contractor's liabilities and responsibilities specified within the Contract or by law.
No Contribution by City. Any insurance or self-insurance programs maintained by the City do not contribute with insurance provided by Developer, Architect and Contractor under this Contract.
Insurance not Limited by'Indemnification. The required insurance to be carried is not limited by any limitations expressed in the indemnification language in this Contract or any limitation placed on the indemnity in this Contract given as a matter of law.
Insurance and Limits Maintained. 11'Developer, Architect and Contractor maintains higher limits and/or broader coverage than the minimums shown herein, the City requires and shall be entitled the higher limits and/or broader coverage maintained by Developer Architect and
JPSTC Design- Build Agreement
Exhibit M - Insurance Requirements and Certificate
Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Joint Venture or Limited Liability Company. If Developer, Architect and Contractor is a joint venture or limited liability company, the insurance policies must name the joint venture or limited liability company as a named insured.
Other Insurance obtained by Developer, Architect and Contractor.
If Developer's, Architect's and Contractor's desires additional coverages the Developer's, Architect's and Contractor's will be responsible for the acquisition and cost.
Insurance required of Subcontractors. Developer, Architect and Contractor shall name Subcontractor(s) as a named insured(s) under Developer's, Architect's and Contractor's insurance or Developer, Architect and Contractor will require each Subcontractor(s) to provide and maintain Commercial General Liability, Commercial Automobile Liability, Worker's Compensation and Employers Liability Insurance and when applicable Excess/Umbrella Liability Insurance with coverage at least as broad as in outlined in Section A, Insurance Required. The limits of coverage wilLbe determined by Developer, Architect and Contractor. Developer, Architect and Contractor shall determine if Subcontractor(s) must also provide any additional coverage or other coverage outlined in Section A, Insurance Required. Developer, Architect and Contractor are all responsible for ensuring that each Subcontractor has named the City as an additional insured where required and name the City as an additional insured on an additional insured endorsement form acceptable to the City. Developer, Architect and Contractor is also responsible for ensuring that each Subcontractor has complied with the required coverage and terms and conditions outlined in this Section B, Additional Requirements. When requested by the City, Developer, Architect and Contractor must provide to the City certificates of insurance and additional insured endorsements or other evidence of insurance. The City reserves the right to obtain complete, certified copies of any required insurance policies at any time. Failure of the Subcontractor(s) to comply with required coverage and terms and conditions outlined herein will not limit Developer's, Architect's and Contractor's liability or responsibility.
City's Right to Modify. Notwithstanding any provisions in the Contract to the contrary, the City, Department of Finance, Risk Management Office maintains the right to modify, delete, alter or change these requirements. '
36
JPSTC Design- Build Agreement
Exhibit 14 - Insurance Requirements and Certificate
INSURANCE CERTIFICATE OF COVERAGE
Named Insured: Address:
Specification
RFP:
Project/;:
Contract//:
Description of Operation/Location
The insurance policies and endorsements indicated below have been issued to the designated named insured with the
policy limits as set forth herein covering the operation described within the contract involving the named insured
and the City of Chicago. The Certificate issuer agrees that in the event of cancellation, non-renewal or material
change involving the indicated policies, the issuer will provide at least sixty (60) days prior written notice of such
change to the City of Chicago at the address shown on this Certificate. This certificate is issued to the City of
Chicago in consideration ofthe contract entered into with the named insured, and it is mutually understood that the
City of Chicago relies on this certificate as a basis for continuing such agreement with the named insured:
Type of Insurance
General Liability
[ ] Claims made [ ] Occurrence
[ ] Premise-Operations
f ] Explosion/Collapse
Underground
[ ] Products/Completed-Operations
[ ] Blanket Contractual
[ ] Broad Form Property Damage
[ ] Independent Contractors
[ ] Personal Injury
[ ] Pollution
Policy Number
Expiration Date
Limits of Liability
All Limits in Thousands
CSL Per Occurrence $
General
Aggregate S
Products/Completed
Operations
Aggregate
Automobile Liability
[ ] Excess Liability [ ] Umbrella Liability
Each
Occurrence $
Worker's Compensation and Employer's Liability
Statutory/Illinois Employers Liability S
Builders Risk/Course of
Construction
Professional Liability
Owner Contractors Protective
Other
a) Each Insurance policy required by this agreement, excepting policies for worker's compensation and professional liability, will read: "The City of Chicago is an additional insured as respects operations and activities of, or on behalf of the named insured, performed under contract with or permit from the City of ChicaiiO."
37
PSTC Design- Build Agreement
Exhibit I'I — Insurance Requirements and Certificate
The General, Automobile and Excess/Umbrella Liability Policies described provide for severability of Interest (cross liability) applicable to tiie named insured and the City.
Workers Compensation and Properly Insurers shall waive all rights of subrogation against the City of Chicago.
d) The receipt of this certificate by the City docs not constitute agreement by the City that the insurance
requirement's in the contract have been fully met, or that the insurance policies indicated by this
certificate are in compliance with all contract requirements.
Name and Address of Certificate Holder and Recipient of Notice
Certificate Holder/Additional Insured Signature of Authorized Rep.:
City of Chicago Agency/Company:
Department of Procurement Services
121 N. LaSalle St., #806
Chicago, IL 60602 Address:
Telephone:
JPSTC Design- Build Agreement
P.xhibit 14 - Insurance Requirements and Certificate
EXHIBIT 15 - BONDING REQUIREMENTS AND FORMS
RIDER ATI ACHED
CONTRACTOR'S PERFORMANCE & PAYMENT BOND
Know All Men by these Presents, That we, COMPANY NAME STREET ADDRESS CITY, STATE ZIP CODE
Principal, hereinafter referred to as Contractor, and , Surety ofthe County of _
and State of _, are held and firmly bound unto the CITY OF CHICAGO in the penal sum of:
— Dollar Amount in Words and 00/100 Dollars (S ) —
lawful money ofthe United States, for the payment of which sum of money, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
Sealed with our seals and dated this day of , 20 .
Condition of the Above Obligation is such, that whereas the above bounden Contractor has entered into a certain contract with the City of Chicago, bearing
Contract No 68539. and Specification No. 611788 all in conformity with said contract, for,
Furnishing the City of Chicago, Name of User Department, all labor, tools, material, and equipment required and necessary for the project known as:
REPLACEMENT FACILITIES FOR 2FM OPERATIONS
* The attached rider is incorporated herein by reference.
Now, if the said Contractor shall in all respects well and truly keep and perform the said contract on its part, in accordance with the terms and provisions of all ofthe Contract Documents comprising said contract, and in the time and manner therein prescribed, and further shall save, indemnify, and keep harmless the City of Chicago against all loss, damages, claims, liabilities, judgments, costs and expenses which may in anywise accrue against said City of Chicago, in consequence ofthe granting of said contract, or which may in anywise result therefrom, or which may result from strict liability, or which may in anywise result from any injuries to, or death of, any person, or damage to any real or personal property, arising directly or indirectly from or in connection with, work performed or to be performed under said contract by said Contractor, its Agents, Employees or Workmen, assignees, subcontractors, or anyone else, in any respect whatever, or which may result on account of any infringement of anypatent by reason ofthe materials, machinery, devices or apparatus used in the performance
39
JPSTC Design- Build Agreement
Exhibit 15 ¦ Bonding Requirements and Forms
of said contract, and moreover, shall pay to said City any sum or sums of money determined by the Purchasing Agent, and/or by a court of competent jurisdiction, to be due said City by reason of any failure or neglect in the performance of the requirements of said contract, wherefore the said Purchasing Agent shall have elected to suspend or cancel the same, and shall pay all claims and demands whatsoever, which may accrue to each and every materialman and subcontractor, and to each and every person who shall be employed by the said Contractor or by its assignees and subcontractors, in or about the performance of said contract, and with wages paid at prevailing wage rates if so required by said contract, and shall insure its liability to pay the compensation, and shall pay all claims and demands for compensation which may accrue to each and every person who shall be employed by them or any of them in or about the performance of said contract, or which shall accrue to the beneficiaries or dependents of any such person, under the provisions of the Workers' Compensation Act, 820 ILCS 305, as amended, and the Workers' Occupational Disease Act, 820 ILCS 310, as amended (hereinafter referred to as "Acts") then is this obligation to be null and void, otherwise to remain in full force and effect.
And it is hereby expressly understood and agreed, and made a condition hereof, that any judgement rendered against said City in any suit based upon any loss, damages, claims, liabilities, judgements, costs or expenses which may in anywise accrue against said City as a consequence ofthe granting of said contract, or which may in anywise result therefrom, or which may in anywise result from any injuries to, or death of, any person, or damage to any real or personal property; arising directly or indirectly from, or in connection with, work performed, or to be performed under said contract by said Contractor or its agents, employees or workmen, assignees, subcontractors, or anyone else and also any decision of the Industrial Commission ofthe State of Illinois; and any order of court based upon such decision, or judgement thereon, rendered' against said City of Chicago in any suit or claim arising under the aforementioned Acts when notice of the pendency or arbitration proceedings or suit shall have been given said Contractor, shall be conclusive against each and all parties to this obligation, as to amount, liability and all other things pertaining thereto.
Every person furnishing material or performing labor in the perfonnance of said contract, either as an individual, as a subcontractor, or otherwise, shall have the right to sue on this bond in the name ofthe City of Chicago for his use and benefit and in such suit said person as plaintiff, shall file a copy of this bond, certified by the party or parties in whose charge this bond shall be, which copy shall be, unless execution thereof be denied under oath; prima facie evidence ofthe execution and delivery of the original; provided, that nothing in thus bond contained shall be taken to make the City of Chicago liable to any subcontractor, materialman, laborer or to any other person to any greater extent than it would have been liable prior lo the enactment ofthe Public Construction Bond Act, 30 ILCS 5 5 0, as amended; provided further, that any person having a claim for labor and materials furnished m the performance of this contract shall have no right of action unless he shall have filed a verified notice of such claim with the Clerk ofthe City of Chicago within one hundred eighty (180) days after the date of the last item of work or the furnishing Of the last item of materials, and shall have furnished a copy of such verified notice to the contractor within ten (10) days ofthe filing ofthe notice with the City of Chicago. Such claim shall lie verified and shall contain the name and address ofthe claimant, the business address ofthe claimant within the State of Illinois, if any, or if the claimant be a foreign corporation having no place of business
40
JPSTC Design- Build Agreement
Exhibit 15 - Bonding Requirements and Forms
with the State the principal place of business of said corporation, and in all cases of partnership the names and residences of each, ofthe partners, the name ofthe contractor for the City of Chicago, the name ofthe person, 11 rm or corporation by whom the claimant was employed or to whom such claimant furnished materials, the amount ofthe claim and a brief description ofthe public improvement for the construction or installation of which the contract is to be performed. Provided, further that no defect in the notice herein provided for shall deprive the claimant of his right of action under the terms and provisions of this bond unless it shall affirmatively appear that such defect has prejudiced the rights of an interested party asserting the same; provided, further, that no action shall be brought until the expiration of one hundred twenty (120) days after the date of the last item of work or ofthe furnishing of the last item of material, except in cases where the final settlement between the City of Chicago and the Contractor shall have been made prior to the expiration ofthe 120-day period in which case action may be taken immediately following such final settlement, and provided, further that no action of any kind shall be brought later than six (6) months after the acceptance by the City of Chicago of the completion of work. Any suit upon this bond shall be brought only in a circuit court ofthe State of Illinois in the judicial district in which the contract shall have been performed.
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of any of the Contract Documents comprising said contract, or to the work to be performed thereunder, shall in anywise affect the obligations on this bond, and it does by waive notice of any such change, extension of time, alteration or addition to the terms of said Contract Documents or to the work.
CONTRACTOR
By: President
Chief Procurement Officer
(Seal)
JPSTC Design- Build Agreement
Exhibit 15 - Bonding Requirements and Forms|10 10|ss.
STAT Li OF ILLINOIS COUNTY OF COOK
[
aforesaid, DO HEREBY CERI7FY that_
, a Notary Public in and for (he County and Slate
. President and
¦O
uo
a. °
. Secretary of the_
. President and
such
who are personally known to me to be tiie- same persons whose names are subscribed in the foregoing instrument as
. Secretary, appeared
before me thisday in person and acknowledged that they signed, sealed and delivered the said instrument of writing as
their free and voluntary act, and as the free and voluntary act of the said , ;
for the uses and purposes therein set forth, and caused the corporate seal of said Company to be thereto attached.
GIVEN under my hand and Notarial Seal this day of 20_
Notary Public
{ STATE OF ILLINOIS, \ COUNTY OF COOK, J
_, a Notary Public in and for the County and State
aforesaid, DO HEREBY CERTIFY that_
. personally known
. whose name_
. subscribed in the foregoing instrument as such_
, appeared before me this day in person and acknowledged that_
signed, sealed and delivered the said instrument of writing as_
and voluntary act of tiie said_
for the uses and purposes therein set forth, and caused the corporate seal of said Company to be thereto attached.
GfVEN under my hand and Notarial Seal this day of 20_
Notary Public
!'}
STATE OF ILLINOIS, COUNTY OF COOK
I,
J < U >
ss
aforesaid, DO HEREBY CERTIFY dial
who personally known lo me to be die same persons whose name .
_subscnbed in die foregoing
instrument, appeared before me this day in person and acknowledged that he signed, seaied and delivered the
said instrument of writing as free and voluntary act, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal tins day of 20
Notary I'ublic
URC-1C0211-26-1
RIDER TO CON TRACTOR'S PERFORMANCE AND PAYMENT BOND
This Rider supplements Contractor's Performance and Payment Bond ("Boner") on that certain
contract with the City of Chicago ("City") bearing Contract No. and Specification No.
("Contract"). Surety acknowledges that the Contract requires Contractor to obtain from
each of its subcontractors consent to a collateral assignment of their contracts with Contractor to the City. The Contract further grants the City the right, upon Contractor's default for failure to comply with Chapter 4-36 of the Municipal Code of the City, and at the City's sole option, to take over and complete the work to be performed by Contractor through the City's assumption of some or all of Contractor's subcontracts. If the City, in its sole discretion, exercises this right, then Surety waives any rights it may have to cure Contractor's default by performing the work itself or through others and remains bound by its other obligations under the Bond.
43
JPSTC Design- Build Agreement
Exhibit 15 - Bonding Requirements and Forms
i
EXHIBIT 16 - MINORITY AND FEMALE UTILIZATION
COMMITMENTS
in accordance with Chapter 2-92 of the Municipal Code of Chicago, and in order lo promote equality of opportunity for minority and female personnel on this project, Design-Builder has proposed the following minority and female employee utilization commitments for the Project, as percentages of the journeyworker and apprentice and laborer hours lo be expended in the construction of the Project. .
Actual amounts of minority and female work will be measured for the total hours of construction workers employed on the Project within each ofthe categories of journeyworkers, apprentices, and laborers by the Design-Builder and all of the Worksite subcontractors.
Line 1 Percentage of the total Journeyworker hours that the Design-Builder proposes to be worked by minority Journeyworkers during construction ofthe Project. 35%
Line 2 Percentage of the total Apprentice hours that the Design-Builder proposes to be worked by minority Apprentices during construction of the Project. 25%
Line 3 Percentage of the total Laborer hours that the Design-Builder proposes to be worked by minority Laborers during construction of the Project. 40%
Line 4 Percentage of the total Journeyworker hours that the Design-Builder proposes to be worked by female Journeyworkers during construction of the Project. 7%
Line 5 Percentage of the total Apprentice hours that the Design-Builder proposes to be worked by female Apprentices during construction ofthe Project. 7%
Line 6 Percentage ofthe total Laborer hours that the Design-Builder proposes to be worked by female Laborers during construction of the Project. 10%
The Design-Builder is obligated to meet the total commitment made in each category, subject to liquidated damages as described below for noncompliance. The Design-Builder hereby consents and agrees that, in the event of failure to comply with each of the minimum commitments on Lines 1 through 6 above, covering Journeyworkers, Apprentices, and Laborers, respectively, the
JPSTC Design- Build Agreement
Exhibit 16- Minority and Female Utilization Commitments
following shall apply to determine a monetary sum to be withheld from the final payment to the Design-Builder.
In calculating the aggregated work hours toward (he utilization commitment for construction Journeyworkers, Apprentices, or Laborers under this chart, the Design-Builder shall be given 150% credit for every work hour performed by a minority or woman worker residing within a socio-economically disadvantaged area. The criteria for designation of an area as socio-economically disadvantaged, which include but are not limited the median family income-of an area, is set forth in rules promulgated by the Commissioner of Planning and Development.
Liquidated Damages
Liquidated damages will be assessed based on the Design-Builder's failure to meet its utilization commitments for the Project. Utilization commitments will be calculated based on the Direct Costs ofthe total Project.
For each one percent (1%) deficiency of minority journeyworkers not utilized toward the commitment on (Line 1), four cents for each hundred dollars ofthe Direct Costs, calculated as follows:
Direct Costs X .04
100
Each one percent (1%) deficiency of shortfall toward the commitment on (Line 4) for female Journeyworkers shall be computed in the same way.
For each one percent (1%) deficiency of minority Apprentices not utilized toward the commitment on (Line 2), three cents per each hundred dollars ofthe Direct Costs, calculated as follows:
Direct Costs X .03
100
Each one percent (1%) of shortfall toward the commitment on (Line 5) for female Apprentices shall be computed in the same way.
For each one percent (1%) deficiency of minority Laborers not utilized towards the commitment on (Line 3), one cent per each hundred dollars ofthe Direct Costs, calculated as follows:
Direct Costs X .01
100
Each one percent shortfall toward the commitment on (Line 6) for female Laborers shall be computed in the same way.
JPSTC Design- Build Agreement
Exhibit 16 - Minority and Female Utilization Commitments
Reporting
The Design-Builder shall submit to the City on a timely basis a completed weekly certified payroll, (U.S. Department of Labor Form WH-347, Illinois Department of Transportation Form RE-48, or equivalent) with race and gender of employees clearly named or coded each week. The Design-Builder is responsible for forwarding every worksite subcontractor's weekly certified payroll. Supportive information regarding an employee's race, gender or work classification of such is required by the City. Failure to report fully all required workforce information will subject the Design-Builder to liquidated damages per the above formulas.
In the weekly payroll reports, the following ethnic categories should be used to indicate minority personnel for purposes ofthe canvassing formula:
Black: Persons having origins in any of the Black racial groups of Africa.
Hispanic: Persons of Mexican, Puerto Rican, Cuban, Central American, or other Spanish culture or origin, regardless of race.
Native American: Persons who are American Indians, Eskimos, Aleuts or Native Hawaiians.
Asian Pacific: Persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos,
Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories or the Northern Marianas.
Asian Indian: Persons whose origins are from India, Pakistan, or Bangladesh.
Included in the canvassing formula as "Journeyworkers" are the construction-site journeyworkers from the major trades including, without limitation, truck drivers, electrical groundsmen, and elevator construction helpers. Other "Helpers", watchmen, custodial workers, clerical workers, and salaried superintendents are not creditable in the formula. Hourly wage "Foremen" and "General Foremen" will be counted as journeyworkers for purposes ofthe canvassing formula.
Included in the canvassing formula as "Apprentices" are only bona fide apprentices currently in a training program certified by the U.S. Department of Labor - Bureau of Apprenticeship and Training, and for the hours employed at the construction-site. Other categories of trainees are not creditable in the formula. Individual workers who are both minority and female will have their hours counted toward both a minority commitment and any female commitment.
JPSTC Design- Build Agreement
Exhibit 16 Minority and Female Utilization Commitments
EXHIBIT 17 - DIVERSITY AND COMMUNITY ENGAGEMENT
COMMITMENTS
AECOM fully celebrates diversity and inclusion. Teamed with ERS Inc, Brown-Farmer Media Group, Inc. and Cynthia Williams with APAC, we will implement a comprehensive communication strategy. This will include a Minority and Women Business Enterprise (M/WBE) Construction Diversity Plan, while incorporating all aspects of community outreach.
MBE/WBE and Local Hirins Plan
Promoting transparency with the local communities, businesses and stakeholders
During the early phases of the project, we will host and participate in several targeted outreach events:
Introductory meetings: We will introduce our team members and discuss our bidding process and work to assist smaller contractors to form teams with each other as well as with larger teams. We will work to encourage interaction and furthers exposure among primary contractors, local agencies and M/WBEs. Our meet-and-greets are open to all businesses in the trades and well as members of the community and are designed to generate broad awareness about the project and M/WBE and workforce participation goals.
Business opportunity/skills development workshops:
o This "boots-on-the-ground" approach has proven to be the best way to promote participation with the development team, connect M/WBE firms to large business subcontractors, assist emerging firms to prepare for the bid process and reach out to the community about the project.
o By hosting business opportunity conferences early in the preconstruction phases, we will assist representatives of local M/WBE firms in meeting with representatives of the development team and other non-minority subcontractors interested in the project.
o During these events, we will offer seminars in areas such as:
The use of software systems like B1M and E-Builder;
JPSTC Design- Build Agreement
Exhibit 17 - Diversity and Community Engagement Commitments
Bid preparation and focused technical help by appointment.
o The goal of these events is to provide an opportunity not just for networking, but to convey important information to M/WBE and local businesses about subcontracting opportunities. Additionally, we hope to provide skills training to City certified firms enabling them to submit more competitive bids and prepare for any future project bidding processes. We will also invite large subcontractors to join our development team estimators and pre-construction specialists so they can meet with the M/WBE firms and exchange information.
A Well Thought Out M/WBE Subcontractor Utilization Plan
As part of our Construction Diversity Plan, we have created a comprehensive M/WBE Subcontractor Utilization Plan, which details a roadmap to exceeding the 28% MBE and 8% WBE goals. Throughout the design phase, we will insure that we create opportunities dedicated to small businesses and emerging firms.
Unbundled bid packages and subcontracts valued at less than $200,000.
In order to maximize our M/WBE subcontractor participation at the first-tier level, we propose to set aside the construction of the park space and the Explorer Building solely for M/WBE firms; creating bid packages and scopes of work that are of a manageable size for M/WBE and small businesses.
Unbundling of typically larger-sized bid packages to include multiple opportunities for subcontractors of similar trades. For example, a large drywall/rough carpentry bid package can be unbundled to result in separate bid packages for drywall, acoustical ceilings and panels, installation of doors/frames/hardware and rough carpentry. We will assign these unbundled bid packages to specific areas of the project where possible to afford multiple opportunities for potential bidders.
A Creative point system for the bidding process
o In our effort to ensure that our team not only meets but exceeds the hiring goals, we will request specific workforce commitments from each bidder during the bid phase and responses will be taken into consideration during the selection process to encourage maximum participation.
JPSTC Design- Build Agreement
Exhibit 17 - Diversity and Community Engagement Commitments
o After receiving bids but before awarding tiie subcontract, we will meet with each subcontractor proposed for award. At this meeting, we will review their M/WBE participation plan, including all lower-tier subcontracting opportunities. M/WBE participation will play a key role in determining our subcontractor award decisions.
o We will add bid incentive points for those bidders who have a proven track record of retention of a diverse workforce of City of Chicago workers and those who reside within the local communities as well as s diverse team that includes M/W and VBE firms.
o Those firms who have female team members and veterans will also receive bonus points that will provide an edge over other competitive bidders.
• A Creative Program for Returning Citizens
o We will be working with the Salvation Army Freedom Center located in West Humbolt Park as well as other local community organizations to provide job opportunities for returning citizens.
o We will work to provide bid opportunities for those companies owned and operated by returning citizens. We will provide mentoring opportunities for those business owners where needed and work to assist them to build their capacity.
JPSTC Design- Build Agreement
Exhibit 17 - Diversity and Community Engagement Commitments
Community Engagement
Goal: To keep the community informed and engaged through out each stage ofthe project: Programming, Design and Construction
Community Space
An integral part ofthe new facility is to include several community areas: Included will be a community meeting space/room, an adult study room and a teen media room.
In order to arrive at the best design we will meet with the constituents in the community utilizing community engagement/Ward meetings and coordinating through Alderman's office.
Possible means of communication
2FM and AECOM team attend Alderman's monthly meetings and provide updates
on hiring meetings, design status, construction status Project web page Project facebook page
Regular one page summaries of current project status available at the Alderman's
office Email Distribution
2FM and AECOM with Deborah Farmer will work with the Alderman on the cadence and means of communication
JPSTC Design- Build Agreement
Exhibit 17 - Diversity and Community Engagement Commitments
EXHIBIT 18 - SPECIAL CONDITIONS REGARDING MBE/WBE COMMITMENT AND SCHEDULES
I. Policy and Terms
As set forth in 2-92-650 et seq. ofthe Municipal Code of Chicago (MCC) it is the policy ofthe City of Chicago that businesses certified as Minority Owned Business Enterprises (MBEs) and Women Owned Business Enterprises (WBEs) in accordance with Section 2-92-420 et seq. of the MCC and Regulations Governing Certification of Minority and Women-owned Businesses, and all other Regulations promulgated under the aforementioned sections ofthe Municipal Code, as well as MBEs and WBEs certified by Cook County, Illinois, shall have full and fair opportunities to participate fully in the performance of this contract. Therefore, bidders shall not discriminate against any person or business on the basis of race, color, national origin, or sex, and shall take affirmative actions to ensure that MBEs and WBEs shall have full and lair opportunities to compete for and perform subcontracts for supplies or services.
Failure to carry out the commitments and policies set forth herein shall constitute a material breach ofthe contract and may result in the termination ofthe contract or such remedy as the City of Chicago deems appropriate.
Under the City's MBE/WBE Construction Program as set forth in MCC 2-92-650 el seq, the program-wide aspirational goals are 26% Minority Owned Business Enterprise participation and 6% Women Owned Business Enterprise participation. The City has set goals of 26% and 6% on all contracts in line with its overall aspirational goals, unless otherwise specified herein, and is requiring that bidders make a good faith effort in meeting or exceeding these goals.
Pursuant to MCC 2-92-535, the prime contractor may apply be awarded an additional 0.5 percent credit, up to a maximum of a total of 5 percent additional credit, for every 1 percent ofthe value of a contract self-performed by MBEs or WBEs, or combination thereof, that have entered into a mentoring agreement with the contractor or subcontractor-to-subcontractor mentoring agreement. This up to 5% may be applied to the Contract Specific Goals, or it may be in addition to the Contract Specific Goals.
As provided in Section 2-92-720(e), Diversity Credit Program credits awarded by the City's affirmative action advisory board may also be applied to the contract specific goals.
Contract Specific Goals and Bids
A bid may be rejected as non-responsive if it fails to submit one or more ofthe following with its bid demonstrating its good faith efforts to meet the Contract Specific Goals by reaching out to MBEs and WBEs to perform work on the contract:
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
An MBE/WBE compliance plan demonstrating how the bidder plans to meet the Contract Specific Goals (Schedule D); and/or
Documentation of Good Faith Efforts (Schedule FI).
If a bidder's compliance plan falls short ofthe Contract Specific Goals, the bidder must include either a Schedule FI demonstrating that it has made Good Faith Efforts lo find MBE and WBE firms to participate or a request for a reduction or waiver ofthe goals.
Accordingly, the bidder or contractor commits to make good faith efforts to expend at least the following percentages of the total contract price (inclusive of any and all modifications and amendments), if awarded the contract:
MBE Contract Specific Goal: 28% WBE Contract Specific Goal: 8%
This Contract Specific Goal provision shall supersede any conflicting language or provisions that may be contained in this document.
For purposes of evaluating the bidder's responsiveness, the MBE and WBE Contract Specific Goals shall be percentages of the bidder's total base bid. However, the MBE and WBE Contract Specific Goals shall apply to the total value of this contract, including all amendments and modifications.
Contract Specific Goals and Contract Modifications
The MBE and WBE Contract Specific Goals established at the time of contract bid shall also apply to any modifications to the Contract after award. That is, any additional work and/or money added to the Contract must also adhere to these Special Conditions requiring Contractor to (sub)contract with MBEs and WBEs to meet the Contract Specific Goals.
Contractor must assist the Construction Manager or user Department in preparing its "proposed contract modification" by evaluating the subject matter of the modification and determining whether there are opportunities for MBE or WBE participation and at what rates.
Contractor must produce a statement listing the MBEs/WBEs that will be utilized on any contract modification. The statement must include the percentage of utilization of the firms. If no MBE/WBE participation is available, an explanation of good faith efforts to obtain participation must be included.
The Chief Procurement Officer shall review each proposed contract modification and amendment that by itself or aggregated with previous modification/amendment requests, increases the contract value by ten percent (10%) of the initial award, or $50,000, whichever is less, for opportunities to increase the participation of MBEs or WBEs already involved in the Contract.
II. Definitions
Exhibit IS
Special Conditions Regarding MBE/WBE Commitment and Schedule
"Area of Specialty" means the description of a MBE's or WBE's activity that has been determined by the Chief Procurement Officer to be most rellective ofthe firm's claimed specialty or expertise. Each MBE and WBE letter of certification contains a description of the firm's Area of Specialty. Credit toward the Contract Specific Goals shall be limited to the participation of firms performing within their Area of Specialty. The Department of Procurement Services does not make any representation concerning the ability of any MBE or WBE to perform work within its Area of Specialty. It is the responsibility of the bidder or contractor to determine the capability and capacity of MBEs and WBEs to perform the work proposed.
"B.E.P.D." means an entity certified as a Business enterprise owned or operated by people with disabilities as defined in MCC 2-92-586.
"Broker" means a person or entity that fills orders by purchasing or receiving supplies from a third party supplier rather than out of its own existing inventory and provides no commercially useful function other than acting as a conduit between his or her supplier and his or her customer. ,
"Chief Procurement Officer" or "CPO" means the chief procurement officer of the City of Chicago or his or her designee.
"Commercially Useful Function" means responsibility for the execution of a distinct element of the work of the contract, which is carried out by actually performing, managing, and supervising the work involved, evidencing the responsibilities and risks of a business owner such as negotiating the terms of (sub)contracts, taking on a financial risk commensurate with the contract or its subcontract, responsibility for acquiring the appropriate lines of credit and/or loans, or fulfilling responsibilities as a joint venture partner as described in the joint venture agreement.
"Construction Contract" means a contract, purchase order or agreement (other than lease of real property) for the construction, repair, or improvement of any building, bridge, roadway, sidewalk, alley, railroad or other structure or infrastructure, awarded by any officer or agency of the City, other than the City Council, and whose cost is to be paid from City funds.
"Contract Specific Goals" means the subcontracting goals for MBE and WBE participation established for a particular contract.
"Contractor" means any person or business entity that has entered into a construction contract with the City, and includes all partners, affiliates and joint ventures of such person or entity.
"Direct Participation" means the value of payments made lo MBE or WBE firms for work that is done in their Area of Specialty directly related to the performance of the subject matter ofthe Construction Contract will count as Direct Participation toward the Contract Specific Goals.
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
'"Directory1' means the Directory of Minority Business MBHs and WBKs maintained and published by the Chief Procurement Officer. The Directory identifies firms that have been certified as MBEs and WBEs, and includes the dale of their last certifications and the areas of specialty in which they have been certified. Bidders and contractors are responsible for verifying the current certification status of all proposed MBEs and WBEs.
"Good Faith Efforts*' means actions undertaken by a bidder or contractor to achieve a Contract Specific Goal that, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program's requirements.
"Joint venture" means an association of a MBE or WBE firm and one or more other firms to carry out a single, for-profit business enterprise, for which each joint venture partner contributes property, capital, efforts, skills and knowledge, and in which the MBE or WBE is responsible for a distinct, clearly defined portion ofthe work ofthe contract and whose share in the capital contribution, control, management, risks, and profits of the joint venture are commensurate with its ownership interest.
"Mentor-Protege Agreement" means an agreement between a prime and MBE or WBE subcontractor ("Mentoring Agreement"), or an agreement between a prime's subcontractor and MBE or WBE subcontractor ("Subcontractor-to-Subcontractor Mentoring Agreement"), pursuant to MCC 2-92-535, that is approved by the City of Chicago and complies with all requirements of MCC 2-92-535 and any rules and regulations promulgated by the Chief Procurement Officer.
"Minority Business Enterprise" or "MBE" means a firm awarded certification as a minority owned and controlled business in accordance with City Ordinances and Regulations as well as a firm awarded certification as a minority owned and controlled business by Cook County, Illinois.
"Supplier" or "Distributor" refers to a company that owns, operates, or maintains a store, warehouse or other establishment in which materials, supplies, articles or equipment are bought, kept in stock and regularly sold or leased to the public in the usual course of business. A regular distributor or supplier is a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials or supplies required for performance of the Contract are bought, kept in stock, and regularly sold to the public in the usual course of business. To be a regular distributor the firm must engage in, as its principal business and in its own name, the purchase and sale ofthe products in question. A regular distributor in such bulk items as steel, cement, gravel, stone, and petroleum products need not keep such products in stock if it owns or operates distribution equipment.
"Women Business Enterprise" or "WBE" means a firm awarded certification as a women owned and controlled business in accordance with City Ordinances and Regulations as well as a firm awarded certification as a women owned business by Cook County, Illinois.
Exhibit IS
Special Conditions Regarding MBE/WBE Commitment and Schedule
Joint Ventures
The formation of joint ventures to provide MBEs and WBEs with capacity and experience at the prime contracting level, and thereby meet Contract Specific Goals (in whole or in part) is encouraged. A joint venture may consist of any combination of MBEs, WBEs, and non-certified firms as long as one member is an MBE or WBE.
The joint venture may be eligible for credit towards the Contract Specific Goals only if:
The MBE or WBE joint venture partner's share in the capital contribution, control, management, risks and profits of the joint venture is equal to its ownership interest;
The MBE or WBE joint venture partner is responsible for a distinct, clearly defined portion ofthe requirements ofthe contract for which it is at risk;
Each joint venture partner executes the bid to the City; and
The joint venture partners have entered into a written agreement specifying the terms and conditions of the relationship between the partners and their relationship and responsibilities to the contract, and all such terms and conditions are in accordance with the conditions set forth in Items 1, 2, and 3 above in this Paragraph A.
The Chief Procurement Officer shall evaluate the proposed joint venture agreement, the Schedule B submitted on behalf of the proposed joint venture, and all related documents to determine whether these requirements have been satisfied. The Chief Procurement Officer shall also consider the record of the joint venture partners on other City of Chicago contracts. The decision of the Chief Procurement Officer regarding the eligibility of the joint venture for credit towards meeting the Contract Specific Goals, and the portion of those goals met by the joint venture, shall be final.
The joint venture may receive MBE or WBE credit for work performed by the MBE or WBE joint venture partner(s) equal lo the value of work performed by the MBE or WBE with its own forces for a distinct, clearly defined portion of the work.
Additionally, if employees of the joint venture entity itself (as opposed to employees of the MBE or WBE partner) perform the work then the value of the work may be counted toward the Contract Specific Goals at a rate equal to the MBE or WBE firm's percentage of participation in the joint venture as described in Schedule B.
The Chief Procurement Officer may also count the dollar value of work subcontracted to other MBEs and WBEs. Work performed by the forces of a non-certified joint venture partner shall not be counted toward the Contract Specific Goals.
Exhibit IS
Special Conditions Regarding MBE/WBE Commitment and Schedule
C. Schedule B: MBE/WBE Affidavit of Joint Venture
Where the bidder's Compliance Plan includes the participation of any MBE or WBE as a joint venture partner, the bidder must submit with its bid a Schedule B and the proposed joint venture agreement. These documents must both clearly evidence that the MBE or WBE joint venture partner(s) will be responsible for a clearly defined portion ofthe work to be performed, and that the MBE's or WBE's responsibilities and risks are proportionate to its ownership percentage. The proposed joint venture agreement must include specific details related to:
The parties" contributions of capital, personnel, and equipment and share ofthe costs of insurance and bonding;
Work items to be performed by the MBE's or WBE's own forces and/or work to be performed by employees ofthe newly formed joint venture entity;
3. Work items to be performed under the supervision of the MBE or WBE joint
venture partner; and
4. The MBE's or WBE's commitment of management, supervisory, and operative
personnel to the performance of the contract.
NOTE: Vague, general descriptions of the responsibilities of the MBE or WBE joint venture partner do not provide any basis for awarding credit. For example, descriptions such as "participate in the budgeting process," "assist with hiring," or "work with managers to improve customer service" do not identify distinct, clearly defined portions of the work. Roles assigned should require activities that are performed on a regular, recurring basis rather than as needed. The roles must also be pertinent to the nature of the business for which credit is being sought. For instance, if the scope of work required by the City entails the delivery of goods or services to various sites in the City, stating that the MBE or WBE joint venture partner will be responsible for the performance of all routine maintenance and all repairs required to the vehicles used to deliver such goods or services is pertinent to the nature of the business for which credit is being sought.
IV. Counting MBE and WBE Participation Towards the Contract Specific Goals
Refer to this section when preparing the MBE/WBE compliance plan and completing Schedule D-l for guidance on what value ofthe participation by MBEs and WBEs will be counted toward the stated Contract Specific Goals. The "Percent Amount of Participation" depends on whether and with whom a MBE or WBE subcontracts out any portion of its work and other factors.
Firms that are certified as both MBE and WBE may only be listed on a bidder's compliance plan as either a MBE or a WBE to demonstrate compliance with the Contract Specific Goals. For example, a firm certified as both a MBE and a WBE may only listed on the bidder's compliance plan under one oi' the categories, but not both.
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
Additionally, a firm that is certified as both a MBE and a WBE could not self-perform 100% of a contract, it would have to show good faith efforts to meet the Contract Specific Goals by including in its compliance plan work to be performed by another MBE or WBE firm, depending on which certification that dual-certified firm chooses to count itself as.
Only expenditures to firms that perform a Commercially Useful Function as defined above may count toward the Contract Specific Goals.
The CPO will determine whether a firm is performing a commercially useful function by evaluating the amount of work subcontracted, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing and the credit claimed for its performance of the work, industry practices, and other relevant factors.
A MBE or WBE does not perform a commercially useful function if its participation is only required to receive payments in order to obtain the appearance of MBE or WBE participation. The CPO may examine similar commercial transactions, particularly those in which MBEs or WBEs do not participate, to determine whether non MBE and non WBE firms perform the same function in the marketplace to make a determination.
Only the value of the dollars paid to the MBE or WBE firm for work that it performs in its Area of Specialty in which it is certified counts toward the Contract Specific Goals.
Only payments made to MBE and WBE firms that meet BOTH the Commercially Useful Function and Area of Specialty requirements above will be counted toward the Contract Specific Goals.
If the MBE or WBE performs the work itself:
1. 100%o of the value of work actually performed by the MBE's or WBE's own
forces shall be counted toward the Contract Specific Goals, including the cost of
! supplies purchased or equipment leased by the MBE or WBE from third parties or
second tier subcontractors in order to perform its (sub)contract with its own forces. 0%> of the value of work at the project site that a MBE or WBE subcontracts to a non-certified firm counts toward the Contract Specific Goals
If the MBE or WBE is a manufacturer:
1. 100% of expenditures to a MBE or WBE manufacturer for items needed for the Contract shall be counted toward the Contract Specific Goals. A manufacturer is a firm that operates or maintains a factory or establishment that produces on the premises the materials or supplies obtained by the bidder or contractor.
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
E. If the MBE or WBE is a distributor or supplier:
I. 60% of expenditures for materials and supplies purchased from a MBE or WBE that is certified as a regular dealer or supplier shall be counted toward the Contract Specific Goals.
If the MBE or WBE is a broker:
0% of expenditures paid to brokers will be counted toward the Contract Specific Goals.
As defined above, Brokers provide no commercially useful function.
If the MBE or WBE is a member of the joint venture contractor/bidder:
A joint venture may count the portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the MBE or WBE performs with its own forces toward the Contract Specific Goals.
i. OR if employees of this distinct joint venture entity perform the work then the value ofthe work may be counted toward the Contract Specific Goals at a rate equal to the MBE or WBE firm's percentage of participation in the joint venture as described in Schedule B.
Note: a joint venture may also count the dollar value of work subcontracted to other MBEs and WBEs, however, work^subcontracted out to non-certified firms may not be counted.
If the MBE or WBE subcontracts out any of its work:
100% ofthe value ofthe work subcontracted to other MBEs or WBEs performing work in its Area of Specialty may be counted toward the Contract Specific Goals.
0% of the value of work that a MBE or WBE subcontracts to a non-certified firm counts toward the Contract Specific Goals (except for the cost of supplies purchased or equipment leased by the MBE or WBE from third parties or second tier subcontractors in order to perform its (sub)contract with its own forces as allowed by C.l. above).
The fees or commissions charged for providing a bono fide service, such as professional, technical, consulting or managerial services or for providing bonds or insurance or the procurement of essential personnel, facilities, equipment, materials or supplies required for performance of the Contract, may be counted toward the Contract Specific Goals, provided that the fee or commission is determined by the Chief Procurement Officer to be reasonable and not excessive as compared with fees customarily allowed for similar services.
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
The fees charged for delivery of materials and supplies required on a job site (but not the cost ofthe materials and supplies themselves) when the hauler, trucker, or delivery service is not also the manufacturer of or a regular dealer in the materials and supplies, provided that the fee is determined by the Chief Procurement Officer to be reasonable and not excessive as compared with lees customarily allowed for similar services.
The fees or commissions charged for providing any bonds or insurance, but not the cost of the premium itself, specifically required for the performance of the Contract, provided that the fee or commission is determined by the Chief Procurement Officer to be reasonable and not excessive as compared with fees customarily allowed for similar services.
V. Procedure to Determine Bid Compliance
The following Schedules and requirements govern the bidder's or contractor's MBE/WBE proposal:
A. Schedule B: MBE/WBE Affidavit of Joint Venture
1. Where the bidder's Compliance Plan includes the participation of any MBE or WBE as a joint venture partner, the bidder must submit with its bid a Schedule B and the proposed joint venture agreement. See Section III above for detailed requirements.
Schedule C: MBE/WBE Letter of Intent to Perform as a Subcontractor or Supplier
The bidder must submit the appropriate Schedule C with the bid for each MBE and WBE included on the Schedule D. The City encourages subcontractors to utilize the electronic fillable format Schedule C, which is available at the Department of Procurement Services website, . Suppliers must submit the Schedule C for Suppliers, first tier subcontractors must submit a Schedule C for Subcontractors to the Prime Contractor and second or lower tier subcontractors must submit a Schedule C for second tier Subcontractors. Each Schedule C must accurately detail the work to be performed by the MBE or WBE and the agreed upon rates/prices. Each Schedule C must also include a separate sheet as an attachment on which the MBE or WBE fully describes its proposed scope of work, including a description ofthe commercially useful function being performed by the MBE or WBE in its Area of Specialty. If a facsimile copy of the Schedule C has been submitted with the bid, an executed original Schedule C must be submitted by the bidder for each MBE and WBE included on the Schedule D within five (5) business days after the date ofthe bid opening.
Schedule D: Compliance Plan Regarding MBE and WBE Utilization
The bidder must submit a Schedule D with the bid. The City encourages bidders to utilize the electronic lillable format Schedule D. which is available at the
Kxliihit 18
Special Conditions Regarding MBI£/WBF. Commitment and Schedule
Department of Procurement Services website, h 11 p ://c i t vo fc h ica go. o rg/ to rm s. An approved Compliance Plan is required before a contract may commence.
The Compliance Plan must commit to the utilization of each listed MBE and WBE. The bidder is responsible for calculating the dollar equivalent ofthe MBE and WBE Contract Specific Goals as percentages ofthe total base bid. All Compliance Plan commitments must conform to the Schedule Cs.
A bidder or contractor may not modify its Compliance Plan after bid opening except as directed by the Department of Procurement Services to correct minor errors or omissions. Bidders shall not be permitted to add MBEs or WBEs after bid opening to meet the Contract Specific Goals, however, contractors are encouraged to add additional MBE/WBE vendors to their approved compliance plan during the performance of the contract when additional opportunities for participation are identified. Except in cases where substantial, documented justification is provided, the bidder or contractor shall not reduce the dollar commitment made to any MBE or WBE in order to achieve conformity between the Schedule Cs and Schedule D. All terms and conditions for MBE and WBE participation on the contract must be negotiated and agreed to between the bidder or contractor and the MBE or WBE prior to the submission of the Compliance Plan. If a proposed MBE or WBE ceases to. be available after submission of the Compliance Plan, the bidder or contractor must comply with the provisions in Section VII.
Letters of Certification
A copy of each proposed MBE's and WBE's Letter of Certification from the City of Chicago or Cook County, Illinois, must be submitted with the bid.
A Letters of Certification includes a statement of the MBE's or WBE's area(s) of specialty. The MBE's or WBE's scope of work as detailed in the Schedule C must conform to its area(s) of specialty. Where a MBE or WBE is proposed to perform work not covered by its Letter of Certification, the MBE or WBE must request the addition of a new area at least 30 calendar days prior to the bid opening.
Schedule F: Report of Subcontractor Solicitations
A Schedule F must be submitted with the bid, documenting all subcontractors and suppliers solicited for participation on the contract by the bidder. Failure to submit the Schedule F may render the bid non-responsive.
I:. Schedule FI: Documentation of Good Faith Efforts
1. If a bidder determines that it is unable to meet the Contract Specific Goals, il must document its good faith efforts to do so, including the submission of Attachment C, Log of Contacts.
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
If the bidder's Compliance Plan demonstrates (hat it has not met the Contract Specific Goals in full or in part, the bidder must submit its Schedule H no later than three business days after notification by the Chief Procurement Officer of its status as the apparent lowest bidder. Failure to submit a complete Schedule I I will cause the bid to be rejected as non-responsive.
Documentation must include but is not necessarily limited to:
A detailed statement of efforts to identify and select portions of work identified in the bid solicitation for subcontracting to MBEs and WBEs;
A listing of all MBEs and WBEs contacted for the bid solicitation that includes:
Names, addresses, emails and telephone numbers of firms solicited;
Date and time of contact:
Person contacted;
Method of contact (letter, telephone call, facsimile, electronic mail, etc.).
Evidence of contact, including:
Project identification and location;
Classification/commodity of work items for which quotations were sought;
Date, item, and location for acceptance of subcontractor bids;
Detailed statements summarizing direct negotiations with appropriate MBEs and WBEs for specific portions of the work and indicating why agreements were not reached.
Bids received from all subcontractors.
Documentation of bidder or contractor contacts with at least one of the minority and women assistance associations on Attachment A.
Agreements between a bidder or contractor and a MBE or WBE in which the MBE or WBE promises not to provide subcontracting quotations to other bidders or contractors are prohibited.
Prior to award, the bidder agrees to promptly cooperate with the Department of Procurement Services in submitting to interviews, allowing entry lo places of business, providing further documentation, or soliciting the cooperation of a proposed MBE or WBE. Failure to cooperate may render the bid non-responsive.
I. If the City determines that the Compliance Plan contains minor errors or omissions,
the bidder or contractor must submit a revised Compliance Plan within five (5)
business days after notification by the City that remedies the minor errors or
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
omissions. Failure to correct all minor errors or omissions may result in the determination that a bid is non-responsive.
J. No later than three (3) business days after receipt of the executed contract, the contractor must execute a complete subcontract agreement or purchase order with each MBE and WBE listed in the Compliance Plan. No later than eight (8) business days after receipt of the executed contract, the contractor must provide copies of each signed subcontract, purchase order, or other agreement to the Department of Procurement Services.
K. Any applications for City approval of a Mentor Protege agreement must be included with the bid. If the application is not approved, the bidder must show that it has made good faith efforts to meet the contract specific goals.
VI. Demonstration of Good Faith Efforts
In evaluating the Schedule FI to determine whether the bidder or contractor has made good faith efforts, the performance of other bidders or contractors in meeting the goals may be considered.
The Chief Procurement Officer shall consider, at a minimum, the bidder's efforts to:
Solicit through reasonable and available means at least 50% (or at least five when there are more than eleven certified firms in the commodity area) of MBEs and WBEs certified in the anticipated scopes of subcontracting of the contract, as documented by the Schedule H. The bidder or contractor must solicit MBEs and WBEs within seven (7) days prior to the date bids are due. The bidder or contractor must take appropriate steps to follow up initial solicitations with interested MBEs or WBEs.
Advertise the contract opportunities in media and other venues oriented toward MBEs and WBEs.
Provide interested MBEs or WBEs with adequate information about the plans, specifications, and requirements of the contract, including addenda, in a timely manner to assist them in responding to the solicitation.
Negotiate in good faith with interested MBEs or WBEs that have submitted bids. That there may be some additional costs involved in soliciting and using MBEs and WBEs is not a sufficient reason for a bidder's failure to meet the Contract Specific Goals, as long as such costs are reasonable.
Not reject MBEs or WBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The MBE's or WBE's standing within its industry, membership in specific groups, organizations, or
Exhibit IS i
Special Conditions Regarding MBE/WBE Commitment and Schedule
associations and political orsoeial affiliations are not legitimate causes for rejecting or not soliciting bids to meet the Contract Specific Goals.
Make a portion of the work available to MBE or WBE subcontractors and suppliers and selecting those portions ofthe work or material consistent with the available MBE or WBE subcontractors and suppliers, so as to facilitate meeting the Contract Specific Goals.
Make good faith efforts, despite the ability or desire of a bidder or contractor to perform the work of a contract with its own organization. A bidder or contractor who desires to self-perform the work of a contract must demonstrate good faith efforts unless the Contract Specific Goals have been met.
Select portions of the work to be performed by MBEs or WBEs in order to increase the likelihood that the goals will be met. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate MBE or WBE participation, even when the bidder or contractor might otherwise prefer to perform these work items with its own forces.
Make efforts to assist interested MBEs or WBEs in obtaining bonding, lines of credit, or insurance as required by the City or bidder or contractor.
Make efforts to assist interested MBEs or WBEs in obtaining necessary equipment, supplies, materials, or related assistance or services; and
Effectively use the services of the City; minority or women community organizations; minority or women assistance groups; local, state, and federal minority or women business assistance offices; and other organizations to provide assistance in the recruitment and placement of MBEs or WBEs.
C. If the bidder disagrees with the City's determination that it did not make good faith efforts, the bidder may file a protest pursuant to the Department of Procurement Services Solicitation and Contracting Process Protest Procedures within 10 business days of a final adverse decision by the Chief Procurement Officer.
VII. Changes to Compliance Plan
A. No changes to the Compliance Plan or contractual MBE and WBE commitments or substitution of MBE or WBE subcontractors may be made without the prior written approval of the Chief Procurement Officer. Unauthorized changes or substitutions, including performing the work designated for a subcontractor with the contractor's own forces, shall be a violation of these Special Conditions and a breach of the contract with the City, and may cause termination of the executed Contract for breach, and/or subjecl the bidder or contractor to contract remedies or other sanctions. The facts supporting the request for changes must not have been known nor reasonably could have been known by the parties prior to entering into the
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
subcontract. Bid shopping is prohibited. The bidder or contractor must negotiate with the subcontractor to resolve the problem. If requested by either party, the Department of Procurement Services shall facilitate such a meeting. Where there has been a mistake or disagreement about the scope of work, the MBE or WBE can be substituted only where an agreement cannot be reached for a reasonable price for the correct scope of work.
Substitutions of a MBE or WBE subcontractor shall be permitted only on the following basis:
Unavailability after receipt of reasonable notice to proceed;
Failure of performance;
Financial incapacity;
Refusal by the subcontractor to honor the bid or proposal price or scope;
Mistake of fact or law about the elements of the scope of work of a solicitation where a reasonable price cannot be agreed;
Failure of the subcontractor to meet insurance, licensing or bonding requirements;
The subcontractor's withdrawal of its bid or proposal; or
De-certification ofthe subcontractor as a MBE or WBE. (Graduation from the MBE7WBE program does not constitute de-certification.
Termination of a Mentor Protege Agreement.
If it becomes necessary to substitute a MBE or WBE or otherwise change the Compliance Plan, the procedure will be as follows:
The bidder or contractor must notify the Chief Procurement Officer in writing of the request to substitute a MBE or WBE or otherwise change the Compliance Plan. The request must state specific reasons for the substitution or change. A letter from the MBE or WBE to be substituted or affected by the change stating that it cannot perform on the contract or that it agrees with the change in its scope of work must be submitted with the request.
The City will approve or deny a request for substitution or other change within 15 business days of receipt ofthe request.
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
Where the bidder or contractor has established (he basis lor the substitution to the satisfaction of the Chief Procurement Officer, il must make good faith efforts lo meet ihe Contract Specific Goal by substituting a MBE or WBE subcontractor. Documentation of a replacement MBE or WBE. or of good faith efforts, must meet the requirements in sections V and VI. If Ihe MBE or WBE Contract Specific Goal cannot be reached and good faith efforts have been made, as determined by the Chief Procurement Officer, the bidder or contractor may substitute with a non-MBE or non-WBE.
If a bidder or contractor plans to hire a subcontractor for any scope of work that was not previously disclosed in the Compliance Plan, the bidder or contractor must obtain the approval of the Chief Procurement Officer to modify the Compliance Plan and must make good faith efforts to ensure that MBEs or WBEs have a fair opportunity to bid on the new scope of work.
A new subcontract must be executed and submitted to the Chief Procurement Officer within five business days ofthe bidder's or contractor's receipt of City approval for the substitution or other change.
D. The City shall not be required to approve extra payment for escalated costs incurred by the contractor when a substitution of subcontractors becomes necessary to comply with MBE/WBE contract requirements.
VIII. Reporting and Record Keeping
During the term of the contract, the contractor and its non-certified subcontractors must submit partial and final waivers of lien from MBE and WBE subcontractors that show the accurate cumulative dollar amount of subcontractor payments made to date. Upon acceptance of the Final Quantities from the City of Chicago, FINAL certified waivers of lien from the MBE and WBE subcontractors must be attached to the contractor's acceptance letter and forwarded to the Department of Procurement Services, Attention: Chief Procurement Officer.
The contractor will be responsible for reporting payments to all subcontractors on a monthly basis in the form of an electronic audit. Upon the first payment issued by the City of Chicago to the contractor for services performed, on the first day of each month and every month thereafter, email and/or fax audit notifications will be sent out to the contractor with instructions to report payments that have been made in the prior month to each MBE and WBE. The reporting of payments to all subcontractors must be entered into the Certification and Compliance Monitoring System (C2), or whatever reporting system is currently in place, on or before the fifteenth (15th) day of each month.
Once the prime contractor has reported payments made to each MBE and WBE,
including zero dollar amount payments, the MBE and WBE will receive an email
and/or fax notification requesting them to log into the system and confirm
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
payments received. All monthly confirmations must be reported on or before the 20th day of each month. Contractor and subcontractor reporting to the C2 system must be completed by the 25lh of each month or payments may be withheld.
All subcontract agreements between the contractor and MBE/WBE firms or any first tier non-certified firm and lower tier MBE/WBE firms must contain language requiring the MBE/WBE to respond to email and/or fax notifications from the City of Chicago requiring them to report payments received for the prime or the non-certified firm.
Access to the Certification and Compliance Monitoring System (C2), which is a web based reporting system, can be found at:
The Chief Procurement Officer or any party designated by the, Chief Procurement Officer shall have access to the contractor's books and records, including without limitation payroll records, tax returns and records and books of account, to determine the contractor's compliance with its commitment to MBE and WBE participation and the status of any MBE or WBE performing any portion of the contract. This provision shall be in addition to, and not a substitute for, any other provision allowing inspection ofthe contractor's records by any officer or official of the City for any purpose.
The contractor shall maintain records of all relevant data with respect to the utilization of MBEs and WBEs, retaining these records for a period of at least five years after final acceptance of the work. Full access to these records shall be granted to City, federal or state authorities or other authorized persons.
IX. Non-Compliance
Without limitation, the following shall constitute a material breach of this contract and entitle the City to declare a default, terminate the contract, and exercise those remedies provided for in the contract at law or in equity: (1) failure to demonstrate good faith efforts; and (2) disqualification as a MBE or WBE of the contractor or any joint venture partner, subcontractor or supplier if its status as an MBE or WBE was a factor in the award ofthe contract and such status was misrepresented by the contractor.
Payments due to the contractor may be withheld until corrective action is taken.
Pursuant to 2-92-740, remedies or sanctions may include disqualification from contracting or subcontracting on additional City contracts for up to three years, and the amount of the discrepancy between the amount of the commitment in the Compliance Plan, as such amount may be amended through change orders or otherwise over the term of the contract, and the amount paid to MBEs or WBEs. The consequences provided herein shall be in addition to any other criminal or civil liability to which such entities may be subject.
Exhibit IS
Special Conditions Regarding MBE/WBE Commitment and Schedule
D. The contractor shall have the right to protest the final determination of noncompliance and the imposition of any penalty by the Chief Procurement Officer pursuant to 2-92-740 ofthe Municipal Code ofthe City of Chicago, within 15 business days ofthe final determination.
X. Arbitration
If the City determines that a contractor has not made good faith efforts to fulfill its Compliance Plan, the affected MBE or WBE may recover damages from the contractor.
Disputes between the contractor and the MBE or WBE shall be resolved by binding arbitration before the American Arbitration Association (AAA), with reasonable expenses, including attorney's fees and arbitrator's fees, being recoverable by a prevailing MBE or WBE. Participation in such arbitration is a material provision ofthe Construction Contract to which these Special Conditions are an Exhibit. This provision is intended for the benefit of any MBE or WBE affected by the contractor's failure to fulfill its Compliance Plan and grants such entity specific third party beneficiary rights. These rights are non-waivable and take precedence over any agreement to the contrary, including but not limited to those contained in a subcontract, suborder, or communicated orally between a contractor and a MBE or WBE. Failure by the Contractor to participate in any such arbitration is a material breach of the Construction Contract.
A MBE or WBE seeking arbitration shall serve written notice upon the contractor and file a demand for arbitration with the AAA in Chicago, IL. The dispute shall be arbitrated in accordance with the Commercial Arbitration Rules of the AAA. All arbitration fees are to be paid pro rata by the parties.
The MBE or WBE must copy the City on the Demand for Arbitration within 10 business days after filing with the AAA. The MBE or WBE must copy the City on the arbitrator's decision within 10 business days of receipt of the decision. Judgment upon the arbitrator's award may be entered in any court of competent jurisdiction.
XI. Equal Employment Opportunitv
Compliance with MBE and WBE requirements will not diminish or supplant equal employment opportunity and civil rights provisions as required by law related to bidder or contractor and subcontractor obligations.
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
Sp3g> DEPART
j«k PROCUREMENT m SERVICES
Attachment A -Assist Agency List (Rev. Sept 2016)
Assist Agencies are comprised of not-for-profit agencies and/or chamber of commerce agencies that represent the interest of small, minority and/or women owned businesses.
51 Street Business Association
220 E. 51st Street Chicago, IL 60615 Phone: 773-285-3401 Fax: 773-285-3407
Email: the51ststreetbusinessassociation(5)vahoo.com
Web: www.51 stStreetChicaqo.com
Maintains list of certified firms: Yes
Provides training for businesses: Yes
Austin African American Business Networking Assoc.
5820 W. Chicago Ave.,
Chicago, IL 60651
Phone: 773-626-4497
Email: aaabna@vahoo.com
Web: www.aaabna.org
Maintains list of certified firms: No
Provides training for businesses: Yes
Association of Asian Construction Enterprises
5677 W. Howard
Niles, IL 60714
Phone: 847-673-7377
Fax. 847-673-2358
Email: nakmancorp(S>aol.com
Maintains list of certified firms: Yes
Provides training for businesses: Yes
Black Contractors United
12000 S. Marshfield Ave. Calumet Park, IL 60827 Phone: 708-389-5730 Fax: 708-389-5735
Email: valerie(S>blackcontractorsunited.com
Web:
www.blackcontractorsunited.com Maintains list of certified firms: Yes
Provides training for businesses: Yes
LGBT Chamber of Commerce of Illinois
3179 N. Clark St., 2nd Floor
Chicago, IL 60657
Phone: 773-303-0167
Fax: 773-303-0168
Email: qrodriquez(5)lqbtcc.com
Web: www.lgbtcc.com
Maintains list of certified firms: Yes
Provides training for businesses: Yes
Chatham Business Association Small Business Dev.
800 E. 78th Street
Chicago, IL 60619
Phone: 773-994-5006
Fax: 773-855-8905
Email: melindakellv(5)cbaworks.org
Web: www.cbaworks.org
Maintains list of certified firms: Yes
Provides training for businesses: Yes
Chicago Minority Supplier Development Council Inc.
105 W. Adams, Suite 2300
Chicago, IL 60603-6233
Phone: 312-755-2550
Fax: 312-755-8890
Email: pbarreda(5)chicagomsdc.orq
Web: www.chicaqomsdc.org
Maintains list of certified firms: Yes
Provides training for businesses: Yes
Chicago Women in Trades (CWIT)
2444 W. 16th Street
Chicago, IL 60608
Phone: 773-942-1444
Fax: 312-942-1599
Email: ivellinqa(5>cwif2.orq
Web: www.chicaqowomenintrades2 org
Maintains list of certified firms: No
Provides training for businesses: Yes
Chicago Urban League
4510 S. Michigan Ave. Chicago, IL 60653 Phone: 773-624-8810 Fax: 773-451-3579
Email: sbrinston(5)thechicaqourbanleaque.orq
Web:
www.cul-chicaqo.org Maintains list of certified firms: Yes
Provides training for businesses: Yes
Contractor Advisors Business Development Corp.
1507 E. 53rd Street, Suite 906
Chicago, IL. 60615
Phone: 312-436-0301
Email: info(5>contractoradvisors.us
Web: www.contracjprad^sors.us
Maintains list of certified firms: Yes
Provides training for businesses: Yes
Exhibit I 8
Special Conditions Regarding MBE/WBE Commitment and Schedule
Do For Self Community Development Co.
7447 S South Shore Drive, Unit 22B
Chicago, IL 60649
Phone: 773-356-7661
Email dennisdoforself@hotma 11 .com
Web: www.doforself.org
Maintains list of certified firms. No
Provides training for businesses: Yes
Federation of Women Contractors
216 W. Jackson Blvd. #625 Chicago, IL 60606 Phone: 312-360-1122 Fax: 312-750-1203 Email: fwcchicago@aol.com Web: www.fwcchicago.com Maintains list of certified firms: Yes Provides training for businesses: Yes
Greater Pilsen Economic Development Assoc.
1801 S. Ashland
Chicago, IL 60608
Phone: 312-698-8898
Email: greaterpilsen@gmail.com
Web: www.qreaterpilsen.org
Maintains list of certified firms: Yes
Provides training for businesses: Yes
Hispanic American Construction Industry Association (HACIA) *
650 W. Lake St., Unit 415 Chicago, IL 60661 Phone: 312-575-0389 Fax: 312-575-0544 Email: jperez@haciaworks.org Web: www.haciaworks.org Maintains list of certified firms' Yes Provides training for busjnesses: Yes
ic
Illinois State Black Chamber of Commerce
411 Hamilton Blvd., Suite 1404
Peoria, Illinois 61602
Phone: 309-740-4430 / 773-294-8038
Fax: 309-672-1379
Email: Larrvlvory@lllinoisBlackChamber.org / v.qilb66709@yahoo.com www.illinoisblackchamberofcommerce.org Maintains list of certified firms: Yes
Provides training for businesses: Yes
National Association of Women Business Owners
500 Davis Street, Ste 812
Evanston, IL 60201
Phone: 773-410-2484
Fax: 847-328-2018
Email: wjaehn@nawbochicago.org
Web: www.nawbochicaqo.org
Maintains list of certified firms: Yes
Provides training for businesses Yes
Far South Community Development Corporation
9923 S Halsted Street, Suite D Chicago, IL 60628 Phone. 773-941-4833 Fax: 773-941-5252 Email: lacy@farsouth.org Web: www.farsouthcdc.org Maintains list of certified firms No Provides training for businesses: Yes
Greater Englewood Community Development Corp.
815 W. 63rd Street Chicago, IL 60621 Phone: 773-651-2400 Fax: 773-651-2400
Email: iharbin@greaterenglewoodcdc.org Web: www.greaterenglewoodcdc.org Maintains list of certified firms: Yes Provides training forbusinesses: Yes
ic
Greater Far South Halsted Chamber of Commerce
10615 S. Halsted Street Chicago, IL 60628 Phone. 518-556-1641 Fax: 773-941-4019
Email: halstedchamberevents@qmail.com Web: www.qreaterfarsouthhalstedchamber.org Maintains list of certified firms: Yes Provides training for businesses^_Yes
Illinois Hispanic Chamber of Commerce
222 Merchandise Mart Plaza, Suite 1212 c/o 1871
Chicago, IL 60654
Phone:312-425-9500
Email: aalcantar@ihccbusiness.net
Web: www.ihccbusiness net
Maintains list of certified firms: Yes
Provides training for businesses: Yes
Latin American Chamber of Commerce
3512 W. Fullerton Avenue Chicago, IL 60647 Phone: 773-252-5211 Fax: 773-252-7065
Email.d.lorenzopadron@LACCUSA.com Web: www.LACCUSA.com Maintains list of certified firms: Yes Provides training for businesses: Yes
National Organization of Minority Engineers (NOME) *
33 W. Monroe, Suite 1540
Chicago, IL 60603
Phone: 312-960-1239
Email: grandevents1@sbcglobal net
Web www.nomeonline.org
Maintains list of certified firms' Yes
Provides training for businesses; Yes
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
Rainbow/PUSH Coalition
930 E. 50th Street
Chicago, IL 60615
Phone: 773-256-2768
Fax: 773-373-4103
Email: jmitchell@rainbowpush.org
Web: www.rainbowpush.org
Maintains list of certified firms: Yes
Provides training for businesses: No
The Monroe Foundation
1547 South Wolf Road
Hillside, Illinois 60162
Phone: 773-315-9720
Email: omonroe@themonroefoundation.org
Web: www.themonroefoundation.org
Maintains list of certified firms: No
Provides training for businesses: Yes
South Shore Chamber, Inc.
1750 E. 71s1 Street, Suite 208
Chicago, IL 60649-2000
Phone. 773-955- 9508
Email twertz@southshorechamber[nc org
Web: www southshorechamberinc.org
Maintains list of certified firms' Yes
Provides training for businesses: Yes
US Minority Contractors Association, Inc.
1250 Grove Ave. Suite 200 Barrington, IL 60010 Phone: 847-708-1597 Fax: 847-382-1787
Email: admin@usminoritycontractors.org Web: USMinorityContractors.org Maintains list of certified firms: Yes Provides trainingfor businesses. Yes
Women's Business Development Center
8 S. Michigan Ave., 4th Floor
Chicago, IL 60603
Phone: 312-853-3477
Fax: 312-853-0145
Email: fcurry@wbdc.org
Web: www.wbdc.org
Maintains list of certified firms' Yes
Provides training for businesses: Yes
Your Community Consultants Foundation
9301 S. Parnell Ave.,
Chicago, IL 60620
Phone: 773-224-9299
Fax: 773-371-0032
Email: allen81354@aol.com
Maintains list of certified firms: No
Provides training for businesses: Yes
Women Construction Owners & Executives (WCOE)
Chicago Caucus
308 Circle Avenue
Forest Park, IL 60130
Phone: 708-366-1250
Email: mkm@mkmservices.com
Web: www.wcoeusa.org
Maintains list of certified firms: Yes
Provides training for businesses: No
' Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
SCHEDULE B: MBE/WBE Affidavit of Joint Venture
I) All information requested on this schedule initsi be answered in the spaces provided. Do not refer lo your joint venture agreement except to expand on answers provided on this form. 1/ additional space is required, attach additional sheets. In till proposed joint ventures, each MBE and/or WKE venturer must submit ti copy of its current Letter of Certification
Name of joint venture:
Address: :
Telephone number of joint venture: ]
Email address:
Name of non-MBE/WBE venturer:
Address:
Telephone number:
Email address;
Contact person for matters concerning MBE/WBE compliance:
Name of MBE/WBE venturer:
Address:
Telephone number:
Email address;
Contact person for matters concerning MBE/WBE compliance:
Describe the role(s) ofthe MBE and/or WBE venturer(s) in the joint venture:
Attach a copy of the joint venture agreement.
In order to demonstrate the MBE and/or WBE joint venture partner's share in the capital contribution, control, management, risks and profits of the joint venture is equal to its ownership interest, the proposed joint venture agreement must include specific details related to: (1) the contributions of capital, personnel and equipment and share of the costs of bonding and insurance; (2) work items to be performed by the MBE/WBE's own forces; (3) work items to be performed under the supervision of the MBE/WBE venturer; and (4) the commitment of management, supervisory and operative personnel employed by the MBE/WBE to be dedicated to the performance of the project.
Ownership ofthe Joint Venture.
What is the pcrcentage(s) of MBE/WBE ownership of the joint venture?
MBE/WBE ownership pereenlage(s)
Non-MBE/WBE ownership percentage(s)
Specify MBE/WBE percentages for each ofthe following (provide narrative descriptions and other details as applicable):
I. Profit and loss sharing:
2. Capital contributions:
Dollar amounts of initial contribution:
Dollar amounts of anticipated on-going contributions:
Revised 07/27/04 Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
3. Contributions ol'equipment (Specify types, quality and quantities ol"equipment lo be provided by
each venturer):
4. Other applicable ownership interests, including ownership options or other agreements which
restrict or limit ownership and/or control:
Costs of bonding (if required for the performance ofthe contract):
Costs of insurance (if required for the performance of the contract):
Provide copies of all written agreements between venturers concerning this project.
Identify each current City of Chicago contract and each contract completed during the past two years by a joint venture of two or more firms participating in this joint venture:
VII. Control of and Participation in the Joint Venture.
Identify by name and firm those individuals who are, or will be, responsible for, and have the authority to engage in the following management functions and policy decisions. Indicate any limitations to their authority such as dollar limits and co-signatory requirements:
A. Joint venture check signing:
B. Authority lo enter contracts on behalf of the joint venture:
C. Signing, co-signing and/or collateralizing loans:
D. Acquisition of lines of credit:
llxhibil 18
Special Conditions Regarding MBII/WBE Commitment and Schedule
Acquisition and indemnification of payment and performance bonds:
F. Negotiating and signing labor agreements:
G. Management of contract performance. (Identify by name and firm only):
Supervision of Held operations:
Major purchases:
Estimating:
Engineering:
VIII. Financial Controls of joint venture:
A. Which firm and/or individual will be responsible for keeping the books of account?
B. Identify the "managing partner," if any, and describe the means and measure of his/her compensation:
C. What authority does each venturer have to commit or obligate the other to insurance and bonding companies, financing institutions, suppliers, subcontractors, and/or other parlies participating in the performance of this contract or the work of this project?
IX. State the approximate number of operative personnel by trade needed to perform the joint venture's work under this contract. Indicate whether they will be employees of the non-MBE/WBE firm, the MBE/WBE firm, or the joint venture.
Trade Non-MBE/WBE Firm (Number) MBE/WBE (Number) Joint Venture (Number)
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
11'anv personnel proposed lor this project will he employees ofthe joint venture:
Are any proposed joint venture employees currently employed by either venturer''
Currently employed by ncni-:VHJI:7VVMI:! venturer (number) Employed by MBEAVBE venturer
Idenlify by name and firm the individual who will be responsible for hiring joint venture employees:
Which venturer will be responsible for Ihe preparation of joint venture payrolls:
Please stale any material facts of additional information pertinent lo the control and structure of this joint venture.
The undersigned affirms that the foregoing statements are correct and include all material information necessary to idenlify and explain the terms and operations of our joint venture and the intended participation of each venturer in the undertaking, further, the undersigned covenant and agree to provide to the City current, complete and accurate information regarding actual joint venture work and the payment therefore, and any proposed changes in any provision of the joint venture agreement, and to permit the audit and examination of the books, records and files of the joint venture, or those of each venturer relevant to the joint venture by authorized representatives ofthe City or the Federal funding agency.
Any material misrepresentation will be grounds for terminating any contract that may be awarded and for initiating action under federal or state laws concerning false statements.
Note: If, after filing this Schedule B and before the completion on the joint venture's work on the project, there is any change in the information submitted, the joint venture must inform the City of Chicago, either directly or through the prime contractor if the joint venture is a subcontractor.
Name of MBE/WBE Partner Firm Name of Non-MBE/WBE Partner Firm
Signature of Affiant Signature of Affiant
Name and Title of Affiant Name and Title oi" Affiant
Date Date
., 20 , the above-signed officers
(names of affiants)
personally appeared and, known to me be the persons described in the foregoing Affidavit, acknowledged that they executed the same in the capacity therein stated and for the purpose therein contained.
IN WITNESS WHEREOF. I hereunto set my hand and official seal.
Signature of Notary Public
My Commission Expires:
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
DI'S Version 07/2016 - l':i«e I ol"2
SCHEDULE C
MBE/WBE Letter of Intent to Perform as a Subcontractor to the Prime Contractor
NOTICE: THIS SCHEDULE MUST BE AUTHORIZED AND SIGNED BY THE MBE/WBE SUBCONTRACTOR FIRM. FAILURE TO COMPLY MAY RESULT IN THE BID BEING REJECTED AS NON-RESPONSIVE.
Project Name: Specification No.:
From:
(Name of MBE/WBE Firm)
To: and the City of Chicago.
(Name of Prime Contractor)
The MBE or WBE status of the undersigned is confirmed by the attached City of Chicago or Cook County Certification Letter. 100% MBE or WBE participation is credited for the use of a MBE or WBE "manufacturer." 60% participation is credited for the use of a MBE or WBE "regular dealer."
The undersigned is prepared to perform the following services in connection with the above named project/contract. If more space is required to fully describe the MBE or WBE proposed scope of work and/or payment schedule, attach additional sheets as necessary. The description must establish that the undersigned is performing a commercially useful function:
The above described performance is offered for the following price and described terms of payment:
Pav Item No./Description Quantity/Unit Price Total
Subtotal: $.
Total @ 100%: $.
Total @ 60% (if the undersigned is performing work as a regular dealer): $
NOTICE: THIS SCHEDULE AND ATTACHMENTS REQUIRE ORIGINAL SIGNATURES ON EACH PAGE.
(If not the undersigned, signature of person who filled out this Schedule C) (Date)
(Name/Title-Please Print) (Company Name-Please Print)
(Signature of President/Owner/CEO or Authorized Agent of MBEAA/BE) (Date)
(Name/Title-Please Print)
Exhibit 16
Desiun .services Kate Schedule
DPS Version 1)7/21) lh - PfiHC 2 of 2
Schedule C: MBEAA/BE Letter of Intent to Perform as a Subcontractor to the Prime Contractor
Partial Pay Items
For any of the above items that are partial pay items, specifically describe the work and subcontract dollar amount(s)
Pav Item No./Description Quantity/Unit Price Total
Subtotal: $
Total @ 100%: S
Total @ 60% (if the undersigned is performing work as a regular dealer): $
SUB-SUBCONTRACTING LEVELS
A zero (0) must be shown in each blank if the MBE or WBE will not be subcontracting any of the work listed or attached to this schedule.
% of the dollar value of the MBE or WBE subcontract that will be subcontracted to non MBEAA/BE contractors.
% of the dollar value of the MBE or WBE subcontract that will be subcontracted to MBE or WBE contractors.
NOTICE: If any of the MBE or WBE scope of work will be subcontracted, list the name of the vendor and attach a brief explanation, description and pay item number of the work that will be subcontracted. MBEA/VBE credit will not be given for work subcontracted to Non-MBE/WBE contractors, except for as allowed in the Special Conditions Regarding Minority Business Enterprise Commitment and Women Business Enterprise Commitment in Construction Contracts.
The undersigned will enter into a formal written agreement for the above work with you as a Prime Contractor, conditioned upon your execution of a contract with the City of Chicago, within three (3) business days of your receipt of a signed contract from the City of Chicago.
The undersigned has entered into a formal written mentor protege agreement as a subcontractor/protege with you as a Prime Contractor/mentor. ( ) Yes ( ) No
NOTICE: THIS SCHEDULE AND ATTACHMENTS REQUIRE ORIGINAL SIGNATURES ON EACH PAGE.
(If not the undersigned, signature of person who filled out this Schedule C) (Date)
(Name/Title-Please Print) (Company Name-Please Print)
(Email & Phone Number)
(Signature of President/Owner/CEO or Authorized Agent of MBEAA/BE) (Date)
(Name/Title-Please Print)
(Email & Phone Number)
Exhibit 18
Special Conditions Regarding VIBE WBE Commitment and Schedule
I'JI'S Version 07/2016 - I'age I of 2
SCHEDULE C
MBE/WBE Letter of Intent to Perform as a 2nd Tier Subcontractor to the Prime Contractor
NOTICE: THIS SCHEDULE MUST BE AUTHORIZED AND SIGNED BY THE MBE/WBE SUBCONTRACTOR FIRM. FAILURE TO COMPLY MAY RESULT IN THE BID BEING REJECTED AS NON-RESPONSIVE.
Project Name: Specification No.:
From:
(Name of MBE/WBE Firm)
To:
(Name of 1s Tier Contractor)
To: and the City of Chicago.
(Name of Prime Contractor)
The MBE or WBE status of the undersigned is confirmed by the attached City of Chicago or Cook County Certification Letter. 100% MBE or WBE participation is credited for the use of a MBE or WBE "manufacturer." 60% participation is credited for the use of a MBE or WBE "regular dealer."
The undersigned is prepared to perform the following services in connection with the above named project/contract If more space is required to fully describe the MBE or WBE proposed scope of work and/or payment schedule, attach additional sheets as necessary. The description must establish that the undersigned is performing a commercially useful function:
The above described performance is offered for the following price and described terms of payment:
Pay Item No./Description Quantitv/Unit Price Total
Subtotal: $
Total @ 100%: $
Total @ 60% (if the undersigned is performing work as a regular dealer): $
NOTICE: THIS SCHEDULE AND ATTACHMENTS REQUIRE ORIGINAL SIGNATURES ON EACH PAGE.
(If not the undersigned, signature of person who filled out this Schedule C) (Date)
(Name/Title-Please Print) (Company Name-Please Print)
(Signature of President/Owner/CEO or Authorized Agent of MBEAA/BE) (Date)
(Name/Title-Please Print)
Exhibit 16
Desiizn services Rate Schedule
DPS Version 07/2016 - 2 of 2
Schedule C: MBE/WBE Letter of Intent to Perform as a 2nd Tier Subcontractor to the Prime Contractor
Partial Pay Items
For any of the above items that are partial pay items, specifically describe the work and subcontract dollar amount(s).
Pay Item No./Description Quantity/Unit Price Total
Subtotal: $
Total @ 100%: $
Total @ 60% (if the undersigned is performing work as a regular dealer): $
SUB-SUBCONTRACTING LEVELS
A zero (0) must be shown in each blank if the MBE or WBE will not be subcontracting any of the work listed or attached to this schedule.
% of the dollar value of the MBE or WBE subcontract that will be subcontracted to non MBEAA/BE contractors.
% of the dollar value of the MBE or WBE subcontract that will be subcontracted to MBE or WBE contractors.
NOTICE: If any of the MBE or WBE scope of work will be subcontracted, list the name of the vendor and attach a brief explanation, description and pay item number of the work that will be subcontracted. MBE/WBE credit will not be given for work subcontracted to Non-MBE/WBE contractors, except for as allowed in the Special Conditions Regarding Minority Business Enterprise Commitment and Women Business Enterprise Commitment in Construction Contracts.
The undersigned will enter into a formal written agreement for the above work with you as a Prime Contractor, conditioned upon your execution of a contract with the City of Chicago, within three (3) business days of your receipt of a signed contract from the City of Chicago.
The undersigned has entered into a formal written mentor protege agreement as a subcontractor/protege with you as a Prime Contractor/mentor: ( ) Yes ( ) No
NOTICE: THIS SCHEDULE AND ATTACHMENTS REQUIRE ORIGINAL SIGNATURES ON EACH PAGE.
(If not the undersigned, signature of person who filled out this Schedule C) (Date)
(Name/Title-Please Print) (Company Name-Please Print)
(Email & Phone Number)
(Signature of President/Owner/CEO or Authorized Agent of MBEAA/BE) (Date)
(Name/Title-Please Print)
(Email & Phone Number)
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
DPS Version (W/O 1/201-i
SCHEDULE C (Construction)
MBE/WBE Letter of Intent to Perform as a SUPPLIER
Project Name: Specification Number-
From: .
(Name of MBE or WBE Firm)
To: and the City of Chicago'
(Name of Prime Contractor)
The MBE or WBE status of the undersigned is confirmed by the attached City of Chicago or Cook County Certification Letter. 100% MBE or WBE participation is credited for the use of a MBE or WBE "manufacturer". 60% participation is credited for the use of a MBE or WBE "regular dealer".
The undersigned is prepared to supply the following goods in connection with the above named project/contract. On a separate sheet, fully describe the MBE or WBE proposed scope of work and/or payment schedule, including a description of the commercially useful function being performed. Attach additional sheets as necessary:
Pay Item No. / Description Quantity / Unit Price Total
Line 1: Sub Total: $_ Line 2: Total® 100%: $_ Line 3: Total @ 60%: $_
Partial Pay Items.
For any ofthe above items that are partial pay items, specifically describe the work and subcontract dollar amount(s):
Pay Item No. / Description Quantity / Unit Price Total
Line 1: Sub Total: Line 2: Total @ 100%: Line 3: Total @ 60%:
SUB-SUBCONTRACTING LEVELS - A zero (0) must be shown in each blank if the MBE or WBE will not be subcontracting any of the work listed or attached to this schedule.
% of the dollar value of the MBE or WBE subcontract that will be subcontracted to non-MBEAA/BE contractors.
% of the dollar value of the MBE or WBE subcontract that will be subcontracted to MBE or WBE contractors.
NOTICE: If any of the MBE or WBE scope of work will be subcontracted, list the name of the vendor and attach a brief explanation, description and pay item number of the work that will be subcontracted. MBEAVBE credit will not be given for work subcontracted to non-MBEA/VBE contractors, except for as allowed in the Special Conditions Regarding Minority Business Enterprise Commitment and Women Business Enterprise Commitment in Construction Contracts.
The undersigned will enter into a formal written agreement for the above work with you as a Prime Contractor, conditioned upon your execution of a contract with the City of Chicago, within three (3) business days of your receipt of a signed contract from the City of Chicago.
'The undersigned has entered into a formal written mentor protege agreement as a subcontractor/protege with you as a Prime Contractor/mentor: ( ) Yes . ( ) No
NOTICE: THIS SCHEDULE AND ATTACHMENTS REQUIRE ORIGINAL SIGNATURES.
Signature ot Owner. Presiaent or Authorized Agent of MBL or WTJE DaTe Name / I itle (Print)
Phone Number D:n£nTA7Jofbss
Exhibit 16
Design services Rate Schedule
DPS Version 09/01/2014
SCHEDULE D: Compliance Plan Regarding MBE And WBE Utilization
SCHEDULE D
Compliance Plan Regarding MBE & WBE Utilization Affidavit of Prime Contractor
MUST BE SUBMITTED WITH THE BID. FAILURE TO SUBMIT THE SCHEDULE D WILL CAUSE THE
BID TO BE REJECTED. DUPLICATE AS NEEDED.
Project Name:
Specification No.:
In connection with the above captioned contract, I HEREBY DECLARE AND AFFIRM that I am the
and a duly authorized representative of
(Title of Affiant)
(Name of Prime Contractor)
and that I have personally reviewed the material and facts set forth in the attached Schedule Cs regarding Minority Business Enterprise and Women Business Enterprise (MBEAA/BE) to perform as subcontractor, Joint Venture Agreement, and Schedule B (if applicable). All MBEs and WBEs must be certified with the City of Chicago or Cook County in the area(s) of specialty listed.
' Name of; : . type of;W6rk to- be P ¦ 'Totai MBE '¦ Participation in dollars MBE' • Participation ? Mentor. : ! Proteqe:'' total :(vl BE: • ' Participation
. '^¦&:^^;/Rerformediiin,'•afc'eorda^ee,:¦¦ -V.' H;ivi:"-;- •-.'with' Schedule G's: '''¦: !:Proqrarh':;
i / MBE>v pefcentaqe Credit • Claimed • ' - ¦ m: perce'ntaqe'
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
$ % % % |109| $ % % %
$ % % %
$ % % %
Exhibit 18
Special Conditions Regarding MBF/WBE Commitment and Schedule
DPS Version 09/01/2014
SCHEDULE D: Compliance Plan Regarding MBE And WBE Utilization
$ % % %
$ % % %
V.'NarheVof VK-v;; ;•::.-.:'. '•''type of WorkUo be-' vj . '^ Perform Total WBE ; Participation iri'dollar's .WBE, 'Rartiei patio* •Mentor ^sRfotede' ¦vPrdqfarh;.' Total WBE sRairticipatib.':
-." ":";v;. wbe : :3":witb';:Sehedule Cs Onirv.' rpfercfenTaqfes .'r'Credit' '^Claimed*; ¦': ;h iriQT. /pefcentaqe,v
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
$ % % %
? Check here if the following is applicable: The. Prime Contractor intends to enter into mentor protege agreements with certain MBEs/WBEs listed above as indicated by entries in the "Mentor Protege Program Credit Claimed" column. Copies of each proposed mentoring program, executed by authorized representatives of the Prime Contractor and respective subcontractor, are attached to this Schedule D. The Prime Contractor may claim an additional 0.333 percent participation credit (up to a maximum of five (5) percent) for every one (1) percent of the value of the contract performed by the MBEAA/BE protege firm.
Total MBE Participation $_
Total MBE Participation % (including any Mentor Protege Program credit)
Total WBE Participation S
Total WBE Participation % (including any Mentor Protege Program credit)
Total Bid $
To the best of my knowledge, information and belief the facts and representations contained in the aforementioned attached Schedules are true, and no material facts have been omitted
Exhibit 18
Special Conditions Regarding IVIBE/WBE Commitment and Schedule
DPS Version 09/01/2014
SCHEDULE D: Compliance Plan Regarding MBE And WBE Utilization
The Prime Contractor designates the following person as its MBE/WBE Liaison Officer:
(Name- Please Print or Type) (Phone)
I DO SOLEMNLY DECLARE AND AFFIRM UNDER PENALTIES OF PERJURY THAT THE CONTENTS OF THE FOREGOING DOCUMENT ARE TRUE AND CORRECT, AND THAT I AM AUTHORIZED ON BEHALF OF THE PRIME CONTRACTOR TO MAKE THIS AFFIDAVIT.
(Name of Prime Contractor - Print or Type) State of:
County of:
(Signature)
(Name/Title of Affiant - Print or Type)
(Date)
On this day of , 20 , the above signed officer
(Name of Affiant)
personally appeared and, known by me to be the person described in the foregoing Affidavit, acknowledged that (s)he executed the same in the capacity stated therein and for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and seal.
(Notary Public Signature)
SEAL:
Commission Expires:
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment and Schedule
ni's Vl-iskhi oy/o 1/2014
SCHEDULE F: REPORT OF SUBCONTRACTOR SOLICITATIONS FOR CONSTRUCTION CONTRACTS Submit Schedule F with the bid. Failure to submit the Schedule F may cause the bid to be rejected.
Duplicate sheets as needed.
Project Name:
Specification //:
I. on behalf of
(Name of reporter) (Prime contractor)
(A) have either personally solicited, or permitted a duly authorized representative of this firm to solicit, work for this
contract from the following subcontractors which comprise all MBE/WBE and non-MBE/WBE subcontractors who bid
or quoted price information on this contract
Company Name
Business Address
Contact Person
Date of contact
Method of contact
Response to solicitation
Type of Work Solicited
Please circle classification: MBE Certified WBE Certified MBE & WBE Certified Non-Certified
Company Name
Business Address
Contact Person
Date of contact
Method of contact
Response to solicitation
Type of Work Solicited
Please circle classification: MBE Certified WBE Certified MBE & WBE Certified Non-Certified
Company Name
Business Address i
Contact Person
Date of contact i
Method of contact
Response to solicitation
Type of Work Solicited
Please circle classification: MBE Certified WBE Certified MBE & WBE Certified Non-Certified
Company Name
Business Address
Contact Person
Date of contact
Method of contact :
Response to solicitation
Type of Work Solicited
Please circle classification: MBE Certified WBE Certified MBE& WBE! Certified Non-Certified
Company Name
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment Schedule
DPS Vcrsmn (Will/JO I-'I
Business Address
Contact Person
Date of contact
Method of contact _ _
Response to solicitation
Type of Work Solicited
Please circle classification: MBE Certified WBE Certified MBE & WBE Certified Non-Certified
Company Name
Business Address
Contact Person
Date of contact
Method of contact
Response to solicitation
Type of Work Solicited
Please circle classification: MBE Certified WBE Certified MBE & WBE Certified Non-Certified
Company Name
Business Address
Contact Person
Date of contact
Method of contact
Response to solicitation
Type of Work Solicited
Please circle classification: MBE Certified WBE Certified MBE & WBE Certified Non-Certified
Company Name
Business Address
Contact Person ¦_
Date of contact
Method of contact
Response to solicitation
Type of Work Solicited
Please circle classification: MBE Certified WBE Certified MBE & WBE Certified Non-Certified
Company Name
Business Address
Contact Person
Date of contact
Method of contact
Response to solicitation
Type of Work Solicited
Please circle classification: MBE Certified WBE Certified MBE & WBE Certified Non-Certified
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment Schedule
DI'S Version 09/1)1/201-1
I DO SOLEMNLY DECLARE AND AFFIRM UNDER PENALTIES OP PERJURY THAT THE CONTENTS OP THE FOREGOING DOCUMENT ARE TRUE AND CORRECT, AND THAT I AM AUTHORIZED ON BEHALF OF THE PRIME CONTRACTOR TO MAKE THIS AFFIDAVIT.
(Name of Prime Contractor - Prim or Type)
(Signature)
(Name/Title of Affiant) - Print or Type)
/Date)
On this day of , 20
the above signed officer,
(Name of Affiant)
personally appeared and, known by me to be the person described in the foregoing Affidavit, acknowledged that (s)he executed the same in the capacity stated therein and for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and seal.
Notary Public Signature
(Seal)
Commission Expires:
07/29/04
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment Schedule
I)I"S Version (19/01/2014
SCHEDULE Ii: DOCUMENTATION OF GOOD FAITH EFFORTS TO UTILIZE MBEs AND WBEs ON CONSTRUCTION CONTRACT
Project Name:
Specification //
The Department of Procurement Services reserves the right to audit and verify all Good Faith Efforts as a condition of award. Material misrepresentations and omissions shall cause the bid to be rejected.
(B) The following is documentation and explanation ofthe bidder's Good Faith Efforts lo meet the contract specific goals as described in the Good Faith Efforts Checklist as part of Schedule D. The Schedule D cannot be modified without the written approval of DPS.
I, on behalf of
(Name of reporter) (Prime contractor)
have determined that it is unable to meet the contract specific goals in full or in part as set forth in the Special Conditions Regarding Minority and Women Business Enterprise Commitment in Construction Contracts. I hereby declare and affirm that the following good faith efforts were undertaken by the Bidder/Contractor to meet the MBE and/or WBE contract specific goals of this project.
Good Faith Efforts Checklist from Schedule D Attach additional sheets as needed.
Solicited through reasonable and available means at least 50% (or at least 5 when there are more than 11 certified firms in the commodity area) of MBEs and WBEs certified in the anticipated scopes of subcontracting of the contract, within sufficient time to allow them to respond, as described in the Schedule F. Attach copies of written notices sent to MBEs and WBEs.
Provided timely and adequate information about the plan, specifications and requirements of the contract. Attach copies of contract information provided to MBES and WBEs.
Advertised the contract opportunities in media and other venues oriented toward MBEs and WBEs. Attach copies of advertisements.
Negotiated in good faith with interested MBEs or WBEs that have submitted bids and thoroughly investigated their capabilities.
Attach Schedule F, Report of Subcontractor Solicitations for Construction Contracts.
Selected those portions of the work or material consistent with the available MBE or WBE subcontractors and suppliers, including, where appropriate, breaking out contract work items into economically feasible units to facilitate MBE or WBE participation.
Describe selection of scopes of work solicited from MBEs and WBEs and efforts to break out work items.
Exhibit 19 Construction Terms and Conditions
DPS Version (I')/()I/20I4
SCHEDULE H. DOCUMENTATION OF GOOD FAITH EFFORTS TO UTILIZE MBEs AND WBEs ON CONSTRUCTION CONTRACT
Made efforts to assist interested MBEs or WBEs in obtaining bonding, lines of credit, or insurance as required by
the City or bidder or contractor.
Describe assistance efforts.
Made efforts to assist interested MBEs or WBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. Describe assistance efforts.
Effectively used the services ofthe City; minority or women community organizations; minority or women assistance groups; local, state, and federal minority or women business assistance offices; and other organizations to provide assistance in the recruitment and placement of MBEs or WBEs as listed on Attachment A.
Describe efforts to use agencies listed on Attachment A.
|10 10|
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment Schedule
DI'S Version ()')/0l/20l4
SCHEDULE H DOCUMENTATION OF GOOD FAITH EFFORTS TO UTILIZE MBEs AND WBEs ON CONSTRUCTION CONTRACT I DO SOLEMNLY DECLARE AND AFFIRM UNDER T HE PENALTIES OF PERJURY THAT THE CONTENTS OF THE FOREGOING DOCUMENT ARE TRUE AND CORRECT. AND THAT I AM AUTHORIZED, ON BEHALF OI THE CONTRACT OR, TO MAKE THIS AFFIDAVIT.
Name of Contractor:
tl'iint oi Tsiv)
Signature:
(Signaluie of Affiant)
Name of Affiant:,
(i'niit oi Type)
Date:
(Print or Type)
State of
County (City) of.
This instrument was acknowledged before me on
by .
as __
of
was executed).
(date)
_(name/s of person/s)
(type of authority, e.g., officer, trustee, etc.)
(name of party on behalf of whom instrument
Signature of Notary Public
(Seal)
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment Schedule
DPS Vltmihi (W0I/20I4
SCHEDULE H DOCUMENTATION OF GOOD FAITH EFFORTS TO UTILIZE MBEs AND WBEs ON CONSTRUCTION CONTRACT
STATUS REPORT OF MBE/WBE (SUB) CONTRACT PAYMENTS
Specification No.:
Department Project No.
Date:
Voucher No.:
STATE OF:
COUNTY (CITY) OF: )
In connection with the above-captioned contract:
1 HEREBY DECLARE AND AFFIRM that I am the
and duly authorized representative of
( )_
(Address of Company) (Phone)
and that the following Minority and Women Business Enterprises (MBE/WBEs) have been contracted with, and have furnished, or are furnishing and preparing materials for, and have done or are doing labor on the above referenced project; that there is due and to become due them, respectively the amounts set opposite their names for material or labor as stated; and that this a full, true and complete statement of all such MBE/WBEs and ofthe amounts paid, due, and to become due to them: ,
MBE/WBE GOODS/SERVICES AMOUN T OF AMOUNT PAID
PROVIDED CONTRACT TO DATE
TOTAL AMOUNT PAID TO MBEs TO DATE: S_ TOTAL AMOUNT PAID TO WBEs TO DATE: $
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment Schedule
DIN Yl'isioii IW/D1/2DI-I
SCHEDULE H. DOCUMENTATION OF GOOD FAITH EFFORTS TO UTILIZE MBEs AND WBEs ON CONSTRUCTION CONTRACT I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE CONTENTS OF THE FOREGOING DOCUMENT ARE TRUE AND CORRECT, AND THAT I AM AUTHORIZED, ON BEHALF OF THE CONTRACTOR, TO MAKE THIS AFFIDAVIT.
Name of Contractor:
(1'iinl or I ype)
(SiiMiatuie of Affiant)
Signature:
Name of Affiant:
(Pnnt or Type)
State of
County (City) of
This instrument was acknowledged before me on (date)
by (name/s of person/s)
as (type of authority, e.g., officer, trustee, etc.)
of (name of party on behalf of whom instrument was executed).
Signature of Notary Public
Exhibit 18
Special Conditions Regarding MBE/WBE Commitment Schedule
EXHIBIT 19 - CONSTRUCTION TERMS AND CONDITIONS
BOOK 1 - CITY OF CHICAGO STANDARD TERMS AND CONDITIONS FOR DESIGN AND CONSTRUCTION
BOOK 1
TERMS AND CONDITIONS FOR CONSTRUCTION
CITY OF CHICAGO
DEPARTMENT OF FLEET AND FACILITY MANAGEMENT
RAHM EMANUEL MAYOR
Issued by the
DEPARTMENT OF FLEET AND FACILITY MANAGEMENT
DAVID REYNOLDS COMMISSIONER
City Funding
August 2017
(The City may from time to time revise these terms and conditions)
TABLE OF CONTENTS
I. GENERAL PROVISIONS 1
Acronyms 1
Definitions 1
Usage and Contract Interpretation 4
Severability 5
II. PROJECT ORGANIZATION
The Commissioner 5
CONTRACTOR Error! Bookmark not defined.
CONTRACTOR'S OBLIGATIONS
Contractor 5
Subcontractors 7
Site Conditions and Inspection 8
0. Cleaning Up 9
E. Contractor's Warranties and Representations 9
PROPERTY 12
Ownership of Property ' 12
Ownership of Detailed Specifications and Other Contract Documents 12
Right of Entry 13
Damage to City Property 13
Right to Occupy Before Substantial Completion 14
Final Completion and Acceptance of the Work 14
City Funded I General Provisions
Exhibit 19 Construction Terms and Conditions
V. SHOP DRAWINGS, PRODUCT DATA, RECORDS AND SAMPLES
Contractor's Responsibilities and Submittal Procedures 15
Review by the Commissioner 17
Source of Materials 18
Record Documents 19
Record Drawings 19
F. - Record Shop Drawings and Product Data 19
Construction Progress Photographs 20
Instructions, Parts List and Operation and Maintenance Manuals 20
I. Adjustment of Equipment21
J. Project Account Records 21
VI. ASSIGNMENT 22
Assignment of Contract by Contractor 22
Assignment of Funds or Claims by Contractor 23
Assignment of Contract by City 23
Assigns 23
Requests to Subcontract 23
VII. QUALITY OF WORKMANSHIP, EQUIPMENT AND MATERIALS
Standard of Performance 23
Correction of Work 23
Materials and Equipment 24
Substitution of Materials 25
Warranties 26
VIII. PERSONNEL 27
Competency of Workers 27
Supervision and Superintendence 27
City Funded I General Provisions
Exhibit 19 Construction Terms and Conditions
Contractors Project Personnel 27
Key Personnel 27
Prevailing Wage Rates 28
"Living Wage" 28
Minimum Wage, Mayoral Executive Order 2014-1 29
Employment Preferences 30
H. Working hours in city contracts 32
PERMITS AND LICENSES
Contractor Obtains Permits 32
Contractor Pays Permit Fees 32
Occupancy Placard and Fees 32
COORDINATION WITH OTHER CITY DEPARTMENTS
Water System Work and Usage 33
Sewer System Work 33
Parking Meter Removal and Replacement 33
Traffic and Parking Sign Removal and Replacement 34
Trees 34
Demolition 34
XL SCHEDULE 35
Time 35
Progress Schedule 35
Construction Operations Plan 35
Critical Path Method ("CPM") Schedule 36
Recovery Schedule 40
Time for Completing Punch tist 40
No Damages for Delay; Extensions of Time 40
City Funded I General Provisions
Exhibit 19 Construction Terms and Conditions
H. Suspension of Work 42
I. Liquidated Damages 42
MEETINGS 42
Pre-Construction Meeting42
Weekly Review Meetings 42
Monthly Review Meetings 43
PAYMENTS 43
Contract Price 43
Procedure for Monthly Payment Requests and Final Payment
Payment for Stored Material 45
RETAINAGE 46
Prompt Payment to Subcontractors 47
Payments Withheld 49
Payment for Changes 51
Night, Sunday and Holiday Work 57
I. Acceleration 57
J. Payroll Canvass Reports 57
K. Electronic Ordering And Invoices 57
CHANGES IN THE WORK
City's Right to Change Work 58
Contractor's Request 58
Contract Modification 58
Contractor's Release 58
Performance of Changed Work 58
Change Claims and Disputes 59
TESTING & INSPECTION
City Funded I General Provisions
Exhibit 19 Construction Terms and Conditions
Material, Inspection and Responsibility 59
Inspection of the Work 59
Materials and Equipment Testing and Inspection 60
Testing taboratory Labels 61
XVI. CONTRACTOR PRACTICES AT SITE 62
Cooperation Among Contractors 62
Protection of Persons and Property 62
Protection of Streets, Alleys and Public Grounds 65
Protection of Existing Trees in the Right of Way 65
Care of Existing Structures and Property 67
Precautions and Safety 71
Health, Safety and Sanitation 72
Hazardous Operations and Security 74
I. Services and Use of Site 75
J. Reports and Plans 77
XVII. ENVIRONMENTAL REQUIREMENTS 78
Compliance with Environmental taws 78
Environmental Permits 78
Disposal of Materials, Construction Debris, Soil and Waste 79
Equipment and Environmental Control During Transport 80
Environmental Control 80
Open Dumping Prohibited 80
Environmental Protection80
Clean Diesel Fleet: Emissions Reduction (MCC 2-92-595) (where applicable) 81
XVIII. INSURANCE, INDEMNITY AND BONDS : 83
A. Indemnity 83
City Funded I General Provisions
Exhibit 19 Construction Terms and Conditions
Contribution 83
Admiralty 83
Performance and Payment Bonds 84
Insurance 85
XIX. CLAIMS AND DISPUTES 85
General Error! Bookmark not defined.
Claims Error! Bookmark not defined.
DisputesError! Bookmark not defined.
EVENTS OF DEFAULT AND TERMINATION 87
Commissioner's Right 87
Events of Default87
Remedies 88
Nonexclusivity of Remedies 89
Adjudication of Termination 89
Early Termination 89
Non-Appropriation 90
COMPLIANCE WITH ALL LAWS 91
Contractor Must Comply with All Laws 91
Civil Rights Act of 1964, Title VI, Compliance With Nondiscrimination Requirements 91
Business Relationships with Elected Officials 94
Chicago Inspector and Legislative Inspector General 95
Governmental Ethics Ordinance 95
False Statements 95
Americans with Disabilities Act 95
MacBride Principles Ordinance 95
I. Prohibition on Certain Contributions - Mayoral Executive Order No. 2011-4 96
City Funded I General Provisions
Exhibit 19 Construction Terms and Conditions
J. Licensing of General Contractors 96
K. Buy America 96
L. Steel Products 96
M. Wastes 96
N. Duty to Report Corrupt Activity 97
O. Equal Pay 97
P. 2014 Hiring Plan Prohibitions 97
Q. Contractor's liability - Safety barriers and lights 98
R. Electronic Mail Communication 98
S. Disclosure of Ownership Interest in Entities (Electronic Disclosure Statement) 98
T. EDS Update Obligation 98
U. Wheel Tax (City Sticker) 98
V. Deemed Inclusion 98
XXII. MISCELLANEOUS 103
Counterparts 103
Modifications 103
No Waiver of Legal Rights 103
Governing Law 103
Consent to Service of Process and Jurisdiction 103
Contractor Cooperation 104
Joint and Several Liability 104
No Third Party Beneficiaries 104
I. Notices 104
J. Authority 104
K. Software License Agreements 105
City Funded I. General Provisions
Exhibit 19 Construction Terms and Conditions
XXIV. SPECIAL CONDITIONS REGARDING MINORITY OWNED BUSINESS
ENTERPRISE COMMITMENT AND WOMEN OWNED BUSINESS ENTERPRISE COMMITMENT IN CONSTRUCTION CONTRACTS.ERROR! BOOKMARK NOT DEFINED.
City Funded I General Provisions
Exhibit 19 Construction Terms and Conditions
I. GENERAL PROVISIONS.
"IEPA" - Illinois Environmental Protection Agency.
"IDOT" - Illinois Department of Transportation.
"NEC" - National Electric Code.
"NFPA" - National Fire Protection Association
"NEMA" - National Electrical Manufacturer's Association.
"OSHA" - U.S. Occupational Safety and Health Administration
Acronyms
"AG" - American Concrete Institute
"AED" - Associated Equipment Distributors
"AISC" - American Institute of Steel Construction.
"ANSI" - American National Standards Institute.
' "ASME" - American Society of Mechanical Engineers.
"ASTM" - American Society for Testing and Materials
"EDS" - See Section XXI.S.
"CTA" - Chicago Transit Authority
"FEPC" - Fair Employment Practices Commission.
Definitions
"Architect/Engineer" means the Design-Builder or the person designated by Design-Builder to provide the Contract drawings and Detailed Specifications for the Work you are to perform. .
"Business Days" means Monday through Friday, unless an officially designated City holiday falls on one of those days.
"Chief Procurement Officer" means the Chief Procurement Officer for the City of Chicago, and any representative duly authorized in writing to act on his/her behalf.
"City" means the City of Chicago, a municipal corporation and home rule unit of government existing under the Constitution of the State of Illinois.
"Commissioner" means the head of the Department and any designee duly authorized in writing to act on his/her behalf.
"Comptroller" means City Comptroller or his designated representative.
"Consultant(s)" refers to the person, firm or corporation awarded a contract by the City to provide professional architectural or engineering design services or construction supervision for the Project.
"Contract" means the DB Agreement and all plans and drawings, addenda, all exhibits and schedules that are attached to it, including this Book 1, and documents incorporated in it by reference; fully executed performance and payments bond(s); and all amendments, modifications, or revisions made from time to time in accordance with its terms.
"Contract Completion Date" is the date, determined by the Commissioner, on which the Project is to reach Substantial Completion. The Contract Completion Date will be
City Funded I General Provisions
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
determined based on the duration for the Project set by the Contract as adjusted by any Contract modifications that extend or reduce the duration of the Project.
"Contract Modification" means a written modification of the terms and conditions of this Contract, signed by you and the Commissioner.
"Contractor" or "you" means the person who is awarded the Contract.
"Contract Price" is defined in Section XIII.A.
"Contract Time" is the duration of the Work from when the Work is required to begin until the scheduled date for Substantial Completion, including approved time extensions. See I.B.42.
"Corporation Counsel" means the head of the City's Department of Law and any Assistant Corporation Counsel duly authorized to act on the Corporation Counsel's behalf.
"Day" means calendar day.
"Daytime Work" means work performed between the hours of 6:00 a.m. to 6:00 p.m.
"Department" means the City Department identified on the cover of this Contract.
"Detailed Specifications" means the written requirements for materials and equipment to be used in the Work, including the Design Documents and any plans or drawings, and standards of performance for the Work, all of which are set forth in the DB Agreement and exhibits thereto or incorporated by reference.
"Environmental Laws" means all applicable Federal, State, and local laws, ordinances, rules, regulations, and executive orders pertaining to environmental matters.
"Equipment" means all machinery and equipment, together with the necessary supplies for upkeep and maintenance, and all tools and apparatus necessary for the proper and acceptable completion ofthe Work.
"Field Order" means the written order to you, signed by the Commissioner, unilaterally directing changes in the Work or the Contract Time, or directing you to take corrective action and to adhere to Contract.
"Final Completion and Acceptance of the Work " means the last date on which all of the following events have occurred: (i) the Commissioner has determined that all Punch List Work and any other remaining Work have been completed in accordance with the Contract; (ii) final inspections have been completed and operations systems and equipment testing have been completed; (iii) final occupancy certifications have been issued; (iv) all deliverables have been provided to the Commissioner; and (v) all contractual requirements for final payment have been completed.
"Hazardous Materials" means asbestos and asbestos-containing materials, polychlorinated biphenyls (PCBs), oil or any other petroleum products, natural gas, special nuclear materials, and byproduct materials regulated under the Atomic Energy Act (42 U.S.C. Sec. 2014, et seq ), pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Sec. 136, et seq.) and any hazardous waste, toxic substance or related material, including any substance defined or treated as "hazardous
City Funded II. Project Organization
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised .lime 2017)
waste," "special waste," or "toxic substance" (or comparable term) in any Environmental Law.
"Include" (in all of its forms) means "include without limitation" unless the context clearly indicates otherwise.
"Management Consultant" or "Program Manager" means the organization or entity, if any, that the City has retained to oversee the planning, design, and construction of the Project.
"Municipal Code" means the Municipal Code of Chicago.
"Night Work" means work performed between the hours of 6:00 p.m. and 6:00 a.m. unless otherwise defined in the plans.
OMITTED
"Notice to Proceed" means written authorization from the Commissioner for you to commence the Work on a specified date.
"Product Data" are illustrations, standard schedules, performance charts, instructions, descriptive literature, catalogs and brochures, performance and test data, test certifications, diagrams and other information furnished by you to illustrate a material, product or system for some portion of the Work.
"Project" means, collectively, the improvements you are to construct in accordance with the Contract.
"Provide" means furnish and install, unless otherwise specified in this Contract.
"Punch List" or "Punch List work" means minor adjustments, repairs or deficiencies in the Work, as determined by the Commissioner in his sole discretion.
"Record Documents" are all documents pertaining to the completed Work and the Project that the Contract requires you to provide to the City, including Record Drawings, Record Shop Drawings, product data, instructions, parts list, certified payrolls and operations and maintenance manuals.
"Record Drawings" means drawings reflecting the final built Project configuration, including approved modifications.
"Samples" mean physical examples that illustrate materials, equipment or workmanship. Samples include materials, fabricated items, equipment, devices, appliances, or parts of them, as called for in the Detailed Specifications and any other Samples that may be required by the Commissioner to determine whether the kind, quality, construction, workmanship, finish, color and other characteristics of the materials proposed by you conform to the required characteristics.
"Shop Drawings" means drawings, diagrams, schedules and other data specially prepared for the Work by you or any Subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. Shop Drawings include: fabrication, erection, layout and setting drawings; manufacturer's standard drawings; schedules; wiring and control diagrams; and other drawings pertaining to materials, equipment and systems and methods of construction that may be required to show that the materials, equipment
City Funded II Project Organization
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
or system conform to the Contract requirements. Shop drawings must establish the actual detail of all manufactured and fabricated items and indicate the proper relation to the adjoining Work.
"Special Wastes" means those substances as defined in the Illinois Environmental Protection Act, 415 ILCS 5/3.45, and further defined in Section 809.103 of 35 Illinois Administrative Code, Subtitle G, Ch. 1.
"Subcontractor" means any person or entity with whom you contract to provide any part of the Work, and all subcontractors of any tier, including suppliers and material persons, whether or not in privity with you.
"Submittal" means Schedule, Shop Drawings, Product Data or Samples and other items that the Contract may require you to submit to the Commissioner.
"Substantial Completion Date" is the date upon which you have met the requirements for Substantial Completion in the opinion of the Commissioner.
"Substantial Completion of the Project" or "Substantial Completion" means that, in the opinion of the Commissioner, you have completed all Work in accordance with the Contract, except for Punch List Work, and the City is able to occupy and use the Project for the purpose intended.
"Work" means all labor, materials, equipment, deliverables, and other incidentals to be provided by you under this Contract that are necessary or convenient to the successful completion of this Project and that are required by, incidental or collateral to the Contract.
"You" means "Contractor." See above.
C. Usage and Contract Interpretation
Unless a contrary meaning is specifically noted elsewhere, words such as, "as required," "as directed," "as permitted," and similar words mean that requirements, directions of, and permission of the Commissioner are intended. The words "approved," "acceptable," "satisfactory," or words of like import, mean "approved by," "acceptable to," or "satisfactory to" the Commissioner. The words "necessary," "proper," or words of like import as used regarding the extent, conduct or character of the Work specified means that Work must be conducted in a manner, to the extent, or be of character that is "necessary" or "proper" in the opinion of the Commissioner. The Commissioner's judgment in these matters is final and you are not permitted to contest it.
Where the imperative form of an address is used, such as "perform the excavating," "provide equipment required," "remove obstructions encountered," "furnish and install reinforcing steel bars," etc., that address is directed to you .
Any headings in this Contract are for convenience of reference only and do not define or limit its terms or provisions. All article and section references, unless otherwise expressly indicated, are to sections of this Contract. Words importing persons include firms, associations, partnerships, trusts, corporations, joint ventures and other legal entities, including public bodies, as well as natural persons. Words of any gender include correlative words of other genders Words importing the singular number include the plural and vice versa, unless the context otherwise indicates. All references to any
City Funded II Project Organization
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revise J June 2017)
exhibit or document include the latest version and all supplements and/or amendments to any such exhibits or documents. All references to any person or entity include any person or entity succeeding to the rights, duties, and obligations of those persons or entities in accordance with the terms and conditions of this Contract.
4. Whenever reference to a law is contained in this Contract, the reference includes any amendments to the law.
D. Severability
If any provision of this Contract is inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions because it conflicts with any other provision of this Contract, or of any constitution, statute, ordinance, rule of law, or public policy, or for any other reason, those circumstances will not render the provision in question inoperative or unenforceable in any other case or circumstance, or render any other provision or provisions of this Contract invalid, inoperative, or unenforceable to any extent whatever. The invalidity of any phrases, sentences, clauses, or sections contained in this Contract will not affect the remaining portions of this Contract or any part of it.
PROJECT ORGANIZATION
The Commissioner
For the purposes of this Contract, the Commissioner, or any successor office to the Commissioner, will represent the City in all matters relating to the performance of your Work under this Contract and will constitute the point of receipt for all deliverables required under this Contract, unless expressly specified otherwise in this Contract. The Commissioner will decide all questions that arise with regard to the administration of the Contract such as to the quality and acceptability of materials furnished, the Work performed and rate of progress of the Work. The Commissioner will determine the amount and quality of Work performed and materials furnished and their estimates. The Commissioner's estimate will be a condition precedent to your right to receive money due under the Contract, but then only if the modifications or amendments to the Contract are approved in accordance with Article XIV, "Changes in the Work."
Contractor
The Work is under your charge and care until Final Completion and Acceptance of the Work, unless otherwise specified elsewhere in the Contract.
CONTRACTOR'S OBLIGATIONS A. Contractor
1. Except as may be expressly provided otherwise in the Contract, you are solely responsible for selecting the means, methods, techniques, sequences, and procedures used in performing the Work. The intent of the Detailed Specifications is to describe the completed Work that you must provide to fulfill the requirements of the Contract. The Detailed Specifications are not intended to cover every detail of materials, parts, or activities necessary to complete the Work. You must perform all activities that may be required or necessary to complete the Work in accordance with the Contract. For the Contract Price, you must construct, furnish and install all materials, parts and labor
City Funded II Project Organization 5
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 2017)
necessary to complete the entire Work, whether or not the Contract particularly specifies or shows the details of Work.
2. The Work under this Contract has not been completely segregated into divisions of Work to be performed by any trade or Subcontractor. You are responsible for all division of work. However, wherever any provision of any section of the specifications conflicts with any agreements or regulations of any kind at any time in force among members of any trade or craft associations, unions or councils that regulate or distinguish that work is or is not included in the work of any particular trade, you must make all necessary arrangements to reconcile any such conflict without delay, damage, or cost to the City.
Except as otherwise expressly provided in the Contract, the Contract Price includes all costs and expenses for which you will be compensated in connection with the Contract, including
the costs of performing any or all of your obligations and duties under the Contract;
the costs of all materials, equipment, supplies, tools, machinery, labor, supervision, management and items of any and all kinds that are or may be necessary and incidental to the full and satisfactory completion of the Work, whether or not specified or indicated in the Contract;
the costs of permits, insurance, bonds and license;
the costs associated with any risks you assume under the Contract;
the costs associated with all warranties and guarantees;
the costs of complying with the directives of the the Commissioner;
the costs of complying with all laws applicable to the Contract; and
all overhead and profit.
No term of the Contract that further specifically indicates that you must bear the costs of an item or that further specifically indicates that an item will be performed at no additional cost to the City will be construed or interpreted to in any way limit the foregoing.
You must begin the Work on the date specified in the Notice to Proceed. In addition, upon receipt of the Notice to Proceed, you must assign and maintain during the term of the Contract and any extension of it, an adequate staff of competent personnel who are fully equipped, licensed as appropriate, available as needed, and qualified to perform the Work. You must include among your staff such personnel and positions as the Contract may require.
If, in the reasonable opinion of the Commissioner, the performance of your personnel assigned to the Work is at an unacceptable level, or does not comply with the provisions of Section VIII.A, "Competency of Workers," those personnel must cease to be assigned to this Work and must return to you. You must then furnish to the Commissioner the name of a substitute person or persons in accordance with Section III.A.6. Absence of sufficient qualified personnel for the Work constitutes an event of default.
You must supervise and direct the Work competently and efficiently, devoting such attention and applying such skills and expertise as may be necessary to perform the
City Funded III. Contractor's Obligation 6
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
Work in accordance with the Contract. You are responsible for providing a finished Project that complies fully with the Contract.
Risk of Loss. The Work is under your charge and care until Final Completion and Acceptance of the Work by the Commissioner, unless otherwise specified in the Contract. You assume all responsibility for injury or damage to the Work by action of the elements, fire or any other causes whatsoever, including injury or damage arising from the execution or non-execution of the Work. You must rebuild, repair, restore and make good, at no additional cost to the City, all injuries or damages to any portion of your Work before Final Completion and Acceptance of the Work.
When the City furnishes equipment or materials to you for use or inclusion in the Work, you must safeguard all such equipment and materials as you would equipment and materials that you furnished.
The Work will not be considered to be completed and accepted until you receive written notice from the Commissioner confirming the Final Completion and Acceptance of the Work.
If you have any questions or concerns with respect to the Detailed Specifications or Contract drawings, you must raise them with the Commissioner.
B. Subcontractors
All rights and obligations under this Contract are by and between the City and you. Except as may otherwise be provided in the Contract, there is no privity between Subcontractors and the City. Subcontractors have no rights as third-party beneficiaries under this Contract except as may be provided in Article XXIII. You must implement such measures as may be necessary to ensure that your Subcontractors are bound by all applicable provisions ofthe Contract.
All Subcontractors are subject to the approval of the Commissioner. You must not substitute a Subcontractor previously accepted by the Commissioner unless the substitution is acceptable to the^ Commissioner. All requests to subcontract must be submitted on a form approved by the Commissioner.
You are responsible in all aspects and at all times for all Subcontractor Work.
Except as required under Article XXIII, you must upon request furnish the Commissioner with one copy of each written subcontract and subsequent modifications signed by you and the Subcontractor evidencing the agreement. All subcontracts must be in writing. All subcontracts must require that (i) all Subcontractors' Work be performed in strict accordance with this Contract: and (ii) the Subcontractor is bound by and subject to the requirements of this Contract, whether or not a particular provision specifically mentions Subcontractors. Subcontracts may contain different provisions than are provided in this Contract with respect to payments, schedules, and matters not affecting the quality or timely completion of the Work under this Contract, but only if the City's rights are not thereby prejudiced. You must require each Subcontractor to enter into similar subcontracts with its Subcontractors. You must make available to each Subcontractor, before the execution of the subcontract, copies of this Contract, to which the Subcontractor will be bound pursuant to the requirements of this Section III.B.4.
City Funded III Contractor's Obligation
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 2017)
If a subcontract provided to the City does not comply with these requirements, the City's failure to object is not a waiver of them, and you will remain liable to the City for all damages, costs, fines, losses and claims arising out ofthe non-compliance.
In the case of Work performed by Subcontractors, you must secure warranties from the Subcontractors addressed to and in favor of the City; deliver copies of them to the City upon completion of the Subcontractors' Work and; guarantee and assume full responsibility for the performance of any repair or replacement Work that may be required for the full period of the warranties provided However, the delivery of the warranties will not relieve you from any obligations assumed under this Contract.
Contractor hereby collaterally assigns any or all subcontracts to the City, effective upon the City's exercise, in its sole discretion, of its right to assume such assignment as a remedy for Contractor's default or in the event of early termination. The Contractor must require each of your Subcontractors (including materialmen) to consent to a collateral assignment to the City of their respective subcontract with the Contractor. The Contractor's subcontracts must include language stating:
Contractor has collaterally assigned this subcontract to the City of Chicago, effective upon written assumption of such assignment by the City in the event of Contractor's default or early termination of Contractor's contract with the City. Subcontractor hereby consents to such assignment and assumption. Subcontractor acknowledges and agrees that, in the event of such an assignment and assumption, the City will have no liability to Subcontractor for work performed by Subcontractor prior to the effective date of the assignment and assumption and that Subcontractor shall look solely to Contractor for any compensation or other obligations arising under the subcontract prior to such date.
The City encourages Contractors to use Subcontractors that are firms owned or operated by individuals with disabilities, as defined by § 2-92-586 ofthe Municipal Code, where not otherwise prohibited by Federal or State law.
Compliance with Multi-Project Labor Agreement (PLA). The City has entered into the PLA with various trades regarding projects as described in the PLA, which is hereby incorporated by reference. A copy ofthe PLA, with appendices, may be found on the City's website at . Contractor acknowledges familiarity with the requirements of the PLA and its applicability to any work under this agreement, and shall comply in all respects with the PLA.
C. Site Conditions and Inspection
1. Surveys, soil borings, geotechnical information, data, plans or other materials generally describing the unimproved land or existing structures at the site may be provided to you by the City. Such information is not warranted by the City to be accurate. You are not entitled to rely on it. In signing this Contract you are acknowledging that when such information appears in Contract documents, prepared by the City or its Consultants, the City and its Consultants have not verified the information. Site plans do not constitute any representation by the City to you of site boundaries or characteristics.
City Funded III. Contractor's Obligation
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 2017>
You must take field measurements, verify field conditions and carefully compare those field measurements and conditions and any other information known to you with the Contract documents before commencing the Work. No allowance will be made to you for any extra labor and/or materials required due to site conditions or discrepancies that might have been discovered by a thorough and proper inspection of the site. If land surveying Work is required under this Contract, you must have the Work performed by a land surveyor that is licensed as such by the State of Illinois.
If conditions are encountered at the site which are (i) subsurface or otherwise unknown or concealed physical conditions which differ materially from those indicated in the Contract; or (ii) pre-existing unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in activities of the character provided for in the Contract, including the presence of unanticipated Hazardous Materials, then you must provide immediate written notice to the Commissioner before proceeding with the work or disturbing those areas.
If the conditions differ materially from those indicated in the Contract, and cause a material increase or decrease in your cost or time required for the performance of any part of the Work, an equitable adjustment in the Contract Price or Contract Time, or both, will be made under Article XIV, "Changes in the Work."
You must keep on hand at the Work site, for reference, a complete set of Contract documents for the Work, copies of all plans and shop drawings, all additional and revised plans furnished by the City and all orders issued to you by the Commissioner that relate to the Work.
Cleaning Up
During the construction, you must keep the Work site and adjacent premises as free from material, debris, and rubbish as is practicable and must remove them entirely and at once, if in the opinion of the Commissioner, the material, debris or rubbish constitutes a nuisance, a safety hazard, or is objectionable in any way to the public. Upon verbal and/or written notification of unacceptable work day conditions by the City, you will be responsible for immediate rededication within 48 hours of notification. Your failure to act accordingly will result in completion of remediation work by the City at your expense.
As a condition of Final Completion and Acceptance of the Work, you must remove from the Work site and adjacent premises all machinery, equipment, surplus materials, falsework, excavated and useless materials, rubbish, temporary buildings, barricades and signs, and must restore the site to the same general conditions that existed before the Work began.
You must clean off all cement streaks or drippings, paint smears or drippings, rust stains, oil, grease, dirt, and any other foreign materials deposited or accumulated on any portion ofthe Work, or existing work, due to your operations.
You are solely responsible for and must assume all liability associated with off-site disposal of any Hazardous Materials generated as a result of your construction activities.
Contractor's Warranties and Representations You warrant and represent that:
1. You have carefully examined and analyzed the provisions and requirements of this
Contract; you have inspected the Work site(s) to the extent made available by the City;
City Funded III. Contractor's Obligation 9
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
from your own analysis you have satisfied yourself as to the nature and scope of work, all conditions, any obstructions and requirements needed for the performance of this Contract, the general and local conditions, and all other matters that in any way may affect this Contract or your performance; and the time available for the examination, analysis, inspection and investigation was adequate;
This Contract is feasible of performance in accordance with all of its provisions and requirements and that you can and will perform, or cause to be performed, the Work in strict accordance with the provisions and requirements of this Contract;
Except for the contents of this Contract, no representation, statement or promise, oral or written, or of any kind whatsoever, by the City, its officials, agents, representatives or employees, has induced you to submit a proposal nor have you relied upon any, including any reference to (i) the meaning, correctness, suitability or completeness of any provisions or requirements of this Contract; (ii) the nature, existence, or location of materials, structures, obstructions, utilities or conditions, surface or subsurface, that may be encountered at or on the Work site; (iii) the nature, quantity, quality or size of any materials, equipment, labor and other facilities needed for the performance of this Contract; (iv) the general conditions that may in any way affect this Contract or its performance; (v) the compensation provisions of the Contract; or (vi) any other matter;
You were givenNample opportunity and time to review the Contract documents before submittal of your proposal in order that you might request an addendum to the Contract documents that might correct or clarify them; you did so review the Contract documents, and every such correction or clarification has been included in this Contract or else, if omitted, you expressly relinquish the benefit of them and are willing to perform this Contract in its entirety without claiming reliance on any such omission or making any other claim on account ofthe omission;
In accordance with § 11-4-1600(e) of the Municipal Code, Contractor warrants and represents that it, and to the best of its knowledge, its Subcontractors have not violated and are not in violation of the following sections of the Code (collectively, the Waste Sections):
7-28-390 Dumping on public way;
7-28-440 Dumping on real estate without permit;
11-4-1410 Disposal in waters prohibited;
11-4-1420 Ballast tank, bilge tank or other discharge;
11-4-1450 Gas manufacturing residue;
11-4-1500 Treatment and disposal of solid or liquid waste;
11 -4-1530 Compliance with rules and regulations required;
11-4-1550 Operational requirements; and
11-4-1560 Screening requirements.
During the period while this Contract is executory, Contractor's or any Subcontractor's violation of the Waste Sections, whether or not relating to the performance of this Contract, constitutes a breach of and an event of default under this Contract, for which
City Funded III Contractor's Obligation ]()
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised J line 2DI 7)
the opportunity to cure, if curable, will be granted only at the sole discretion of the Commissioner. Such breach and default entitles the City to all remedies under the Contract, at law or in equity.
This section does not limit the Contractor's and its'Subcontractors' duty to comply with all applicable Federal, State, County and Municipal laws, statutes, ordinances and executive orders, in effect now or later, and whether or not they appear in this Contract.
Non-compliance with these terms and conditions may be used by the City as grounds for the termination of this Contract, and may further affect the Contractor's eligibility for future contract awards.
Contractor warrants and represents that neither Contractor nor an Affiliate, as defined below, appears on the Specially Designated Nationals List, the Denied Persons List, the Unverified List, the Entity List, or the Debarred List as maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or by the Bureau of Industry and Security of the U.S. Department of Commerce or their successors, or on any other list of persons or entities with which the City may not do business under any applicable law, rule, regulation, order or judgment.
"Affiliate" means a person or entity which directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with Contractor. A person or entity will be deemed to be controlled by another person or entity if it is controlled in any manner whatsoever that results in control in fact by that other person or entity, either acting individually or acting jointly or in concert with others, whether directly or indirectly and whether through share ownership, a trust, a contract or otherwise.
You understand that the City, in its acceptance of your proposal to perform the Work, materially relied upon your response to the RFP. The information you provided was accurate at the time it was made and no material changes in the information have occurred since then and will not be made without the express consent of the City.
In preparing and submitting your proposal for this Contract, you have complied with and given full consideration to the following:
You have become familiar with them and all Contract requirements and conditions described in them;
You clarified to your satisfaction and complete understanding any doubt as to the true meaning and intent of all parts of the specifications and plans or other portions of the Contract documents;
You have the capability and financial resources to perform all of the provisions and requirements of this Contract.
You can perform all of your obligations under this Contract in accordance with all of the Contract's provisions and requirements.
Contractor warrants that no member of the governing body of the City or other units of government and no other officer, employee, or agent of the City or other unit of government who exercises any functions or responsibilities in connection with the Project to which this Contract pertains, has any personal interest, direct, or indirect, in this Contract. In accordance with 41 USC § 22, no member of or delegate to the
City Funded III Contractor's Obligation ] l
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
Congress of the United States will be permitted to any share or part of this Contract or to any financial benefit to arise from it, nor, under applicable laws, will any member of or delegate to the Illinois General Assembly nor any alderman of the City or City employee. Contractor warrants that its officers, directors and-employees, and the officers, directors and employees of each of member if a joint venture, and subcontractors, presently have no interest and will acquire no interest, direct or indirect, in the Project that would conflict in any manner or degree with the performance of the Work under this Contract. Contractor further warrants that in the performance of this Contract, no person having any such interest will be employed.
Furthermore, if any federal funds are to be used to compensate or reimburse Contractor 1 under this Contract, Contractor represents that it is in compliance with federal restrictions, and promises to remain so, including federal restrictions on lobbying set forth in § 319 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, 31 USCS 1352, and related rules and regulations set forth at 54 Fed. Reg. 52,309 ff. (1989), as amended. If federal funds are to be used, Contractor must execute a Certification Regarding Lobbying, which is contained in the EDS attached to this Contract as an exhibit.
IV. PROPERTY
Ownership of Property
The City will be the owner of the Work, including any improvements, equipment and fixtures installed or constructed by Contractor, as part of the Project or for which the City has paid Contractor to store in anticipation of installation or construction. The City's title shall be free and clear of liens, claims, security interests or other encumbrances, upon the earlier of installation, payment therefore or Final Completion of the Project; provided, however, that transfer of title to the City shall not relieve Contractor of any of its responsibilities under this Contract with respect to Work in Progress. Nor will the transfer of title constitute acceptance of any portion of the work.
Ownership of Detailed Specifications and Other Contract Documents
1. The Detailed Specifications, plans and any copies of them created by Contractor or furnished by the Commissioner are the property of the City. To the extent that portions of the Detailed Specifications were created prior to the execution of the DB Agreement, Contractor will, and hereby does, irrevocably grant, assign, transfer and deliver to the City, all right, title and interest in and to the copyright and other intangible, intellectual property embodied in or pertaining to such Detailed Specifications. They are not to be used on other work. The Contractor will provide the City with all Detailed Specifications created by Contractor or its subcontractors. The City will provide you the number of Detailed Specifications and plans determined appropriate by the City. The City may provide you with additional copies at your request and at your cost. You are responsible for any loss or damage to the Detailed Specifications and plans while in your care and custody, and you must restore all Detailed Specifications and plans that may be lost or damaged. Contract documents will be furnished as follows:
City Funded III. Contractor's Obligation
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 20I7)
Contract Plans 2 Sets
Subsequent Details 2 Sets
Specifications and Contract Documents 2 Sets
You must obtain specifications issued by organizations other than the City to which reference is made in the City's documents at your own expense. You must also retain them at the Work site and make them accessible to the Commissioner.
The City is the owner of the Project. All documents, data, studies, reports, and instruments of service prepared for or by the City under this Contract are the property of the City. During the performance of your Work, you are responsible for any loss or damage to documents while in your possession or the possession of a Subcontractor and you must restore any such document so lost or damaged at your expense.
You must deliver, or cause to be delivered, at any time during the term of this Contract, all documents, including drawings, models, specifications, estimates, reports, studies, maps, and computations, prepared by or for the City, under the terms of this Contract to the City, promptly upon reasonable demand for them or upon termination of the Work. If you fail to deliver them when required, then you must pay the City all damages the City may sustain by reason of the failure, including consequential damages.
Right of Entry
You, and any of your officers, employees, agents, and Subcontractors, are permitted to enter upon any part of the Work site owned by the City in connection with the performance of the Work under this Contract, subject to the terms and conditions contained in this Contract and those rules that may be established by the Commissioner. You must provide advance notice to the. City of any such intended entry. Consent to enter upon all or any part of the Work site given by the City will not create, nor be deemed-to imply the creation of, any additional responsibilities on the part of the City.
Inspections: You acknowledge that the City has a right of access to the Work site at all times and the right to inspect all Work during the Contract period.
You must use, and must cause each of your officers, employees, agents, and Subcontractors to use, the highest degree of care when entering upon property owned by the City in connection with the Work. In the case of any property owned by the City, or property owned by and leased from the City, you must comply and must cause each of your officers, employees, agents, and Subcontractors to comply, with all instructions and requirements for the use of the property, including any licenses for them, which are incorporated by reference. All claims, suits, judgments, costs, or expenses, including reasonable attorneys' fees, arising from, by reason of, or in connection with any such entry is treated in accordance with the indemnification provisions contained in this Contract.
Damage to City Property
If you cause damage to City property, you must, at the sole option of the City, either: (i) pay the cost of repair of the damage; or (ii) repair or replace any property so damaged. The City has the right to a set-off against its payments to you under this Contract for the cost of any
City Funded IV Property 13
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised .lime 2017)
such repairs. All cost to repair or replace any property so damaged will be completed before any final payment can be made to you by the City.
Right to Occupy Before Substantial Completion
The City may occupy and use the Project or portions of it in advance of Substantial Completion of the Work. If the City desires to exercise partial occupancy and use before Substantial Completion of the Work, the Commissioner will provide written notice to you, and you must cooperate with the Commissioner in making available for the City's use such Project services as heating, ventilating, cooling, water, lighting and telephone for space or spaces to be occupied, and if the equipment required to furnish the services is not entirely completed at the time the City desires to occupy and use the space or spaces, you must make every reasonable effort to complete that Work.
When the Commissioner determines that the City will use all or part of the Project before Substantial Completion, the Commissioner will determine:
The responsibility between the City and you for maintenance, repair, furnishing of utilities and the protection of the public (if required) for that part of the Work to be occupied;
The list of items remaining to be performed before the Work or portion of it to be occupied will be substantially complete;
Whether you will need any types of insurance; and
The effect of the City's use before Substantial Completion on required guarantees and warranties.
Final Completion and Acceptance ofthe Work
When you deem the Work to be complete, you must notify the Commissioner, in writing, that the Work will be ready for an inspection and/or test on a date you specify. The notice must be given at least 15 calendar days in advance of the date. If the Commissioner concurs that the Work will be ready for inspection or testing on the date given, the Commissioner will make the inspection within a reasonable period of time. The scheduling of the inspection to determine whether the Work is complete does not relieve you of your responsibilities under the Contract. You must cooperate in all respects in the scheduling and performance of the inspection.
Final Payment at Final Completion and Acceptance of the Work. Unless expressly stated otherwise elsewhere or subject to retainage, final payment will be made only when all Work, including Punch List Work, is complete and you submit to the Commissioner, within 180 calendar days or sooner from the Substantial Completion Date, a sworn affidavit stating the following:
1. All payrolls, invoices for materials and equipment and all other indebtedness connected with the Work for which the City might in any way be responsible have been paid or otherwise satisfied;
2 All waivers of lien required by the Contract have been provided to the Commissioner;
3. As of the date the affidavit is signed, all known claims made by Subcontractors of any
tier and others against you, the City, any agents or representatives of the City pertaining to
City Funded IV Property
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised .lime 2III7)
the Work required under this Contract were provided in writing to the Commissioner and have been resolved;
The warranties and guarantees required by the Contract have been provided to the Commissioner;
All warranties and guarantees are in full force and effect;
The surety's written consent, signed by its authorized representative, to final payment being made directly to you is attached to the affidavit;
Acceptance of final payment will constitute a general release to the City, its agents, representatives, officials and employees of all other claims of liability for anything done or furnished or relating to the Work or for any act or neglect of the City or its agents, representatives, officials and employees relating to or connected with this Contract;
Record Documents, including Record Drawings, Record Shop Drawings and operation and maintenance manuals have been provided to the Commissioner;
All other documents requested by the Commissioner have been provided; and
Wages paid and classifications for laborers and mechanics, including apprentices and trainees employed on the Project, in the following form:
FINAL CERTIFICATE
The undersigned, Contractor on (Contract No. ) certifies
that all laborers, mechanics, apprentices and trainees employed by it or by a Subcontractor performing Work under the Contract have been paid wages at rates not less than those required by the Contract provisions, and that the Work performed by each such laborer, mechanic, apprentice or trainee conformed to the classifications set forth in the Contract or training program provisions applicable to the wage rate paid.
Signature and Title
Name Title Authorized Officer
Contractor: Project:
V. SHOP DRAWINGS, PRODUCT DATA, RECORDS AND SAMPLES A. Contractor's Responsibilities and Submittal Procedures
City Funded IV Property 15
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
Shop Drawings, Product Data, Samples are part of the Work under this Contract, and if also specified, video tape and/or photographs. You must provide them at your expense to the satisfaction ofthe Commissioner.
You must submit to the Commissioner those Shop Drawings, Product Data, Samples, video tape and photographs required for the Work involved under this Contract in accordance with the Schedule.
The Schedule must include a schedule of proposed submittal dates. The dates listed in the Schedule must allow sufficient time for review and processing of Shop Drawings or other data by the City and your re-submittal of them, if necessary, before you will need them to complete your performance of the Work they represent under this Contract. No extensions of time will be granted to you because of your failure to have Shop Drawings, Product Data, Samples, video tape and photographs submitted in time to allow for review, re-submittal and final review. You must also submit a separate submittal schedule (in table format), in addition to the Schedule, identifying all Submittals with submittal dates to the Commissioner for review and approval.
You must prepare and submit proper Shop Drawings, Product Data, Samples, video tape and photographs in accordance with your contractual obligations. By submitting them, you represent that you have determined and verified all materials, field measurements, field conditions and quantities, and that you have checked and coordinated the information contained within the Submittal, including your Subcontractors' Submittals, with the requirements of the Work and of the Contract.
You must date and stamp all Shop Drawings, Product Data, Samples, video tape and photographs. You must also indicate on them that you have reviewed and checked them before submission and found to be in conformance with the Contract. All Submittals must be transmitted to the Commissioner. You must clearly mark each Shop Drawing, Video Tape, Product Data and Sample, in accordance with the following for purposes of identification and record:
SUBMITTAL IDENTIFICATION
Name of Project:: .
Contract Name and Number:
Date of Submittal
Submittal Number:
Re submittal of Submittal Number:
Identification of Deviations from Contract documents:
Specification Section, Page, and Paragraph No. and/or Drawing No.:
Type of Material and Manufacturer:
Intended use: .
Applicable Standards such as ASTM numbers:
CHECKED AND SUBMITTED IN ACCORDANCE WITH DRAWINGS AND SPECIFICATIONS
Contractor ;
By Date.
6. Shop Drawings must be submitted with accurate dimensions. The Shop Drawings must represent the actual manner in which the Work is manufactured and installed, and the relation of the Work installed to that of other trades, clearances, and all other pertinent
City Funded V Shop Drawings, Product Data, Records and Samples
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
data. Cross-section drawings must indicate minimum clearances and all other pertinent data. Dimensions must be expressed in feet and inches. Designs prepared in the metric system may be submitted with metric units, but the equivalent English units must also be shown. All weights and dimensions must be certified before submission for review.
The Commissioner's review and acceptance of Shop Drawings in no way relieves you from responsibility for errors or omissions that may exist in the Work or on the certified Shop Drawings. Where such errors or omissions are discovered, you must correct them at no additional cost to the City. Submittals must be sufficiently complete to allow for proper review. You must submit all Shop Drawings, Product Data, Samples, video tape and photographs to the Commissioner for review with an accompanying transmittal letter containing the above Submittal identification data and a list of items being submitted. You must coordinate Submittals into logical groups or sets to facilitate review of several related items.
Any Submittal that in the Commissioner's sole opinion is not complete and in proper form will be returned to you without review. You must not submit as Shop Drawings duplicates or reproductions of any Contract documents issued by the City.
You must provide Submittals in the following quantities unless a greater number is specified elsewhere in the Contract or is required by the Commissioner.
Shop Drawings: Submit one reproducible transparency and six opaque copies of shop drawings;
Product Data: Submit six copies of Product Data;
Samples: Submit four samples; and
Video and photographs (when required under the Contract): Submit two copies of Video and photographs.
Before submitting Shop Drawings, Product Data, Samples, video tape and photographs, you must notify the Commissioner in writing of any deviations in the Submittals from the requirements of the Contract. If deviations from the Contract requirements are rejected by the Commissioner or if evaluation of the deviations delays the progress of Work, any delay caused will not be compensable by a time extension.
B. Review by the Commissioner
1. Submittals will be reviewed by the Commissioner for compliance with the Contract. In reviewing them the Commissioner will not verify dimensions and field conditions. Any such review does not relieve you, your Subcontractor, manufacturer, fabricator or supplier from responsibility for any deficiency that may exist or from any departures or deviations from the requirements of the Contract, nor does it relieve you or them from responsibility for (i) errors of any sort in Shop Drawings, Samples and Product Data, (ii) responsibility for proper fitting of the Work, or (iii) the necessity of furnishing any Work required by the Contract that may not be indicated on Shop Drawings when reviewed. You are solely responsible for any quantities that may be shown on the Shop Drawings. The Commissioner's review of a specific item does not indicate approval of an assembly of which the item is a component.
City Funded V Shop Drawings, Product Data, Records and Samples
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
You must not fabricate products, begin Work, order or have delivered any material, equipment or system that requires a reviewed Submittal until return ofthe Submittal from the Commissioner with a stamp authorizing Work and/or delivery and installation to be performed, as described in Section V.B.3, immediately below.
The Commissioner will return Submittals stamped as follows:
"No Exceptions" means no changes need be made on the reviewed Submittal. You may proceed with the Work for that Submittal.
"Exceptions as Noted" indicates that the Submittal is accepted subject to the corrections and/or comments noted. You may proceed with the Work for that Submittal but only if you incorporate the Commissioner's comments, and/or corrections. Re-submittal is not required, but the corrections must be reflected in the Record Documents.
"Revise and Resubmit" means that the Submittal does not meet all the requirements necessary to proceed with the Work associated with the Submittal. You must resubmit in accordance with the reviewer's comments and/or corrections. Submittals marked in this manner must not be released for fabrication, delivery or construction.
If the Submittal requires revision, you must notify the Commissioner and all pertinent Subcontractors, in writing, that the reviewed set has been withdrawn.
Submittals that require revisions must be corrected and resubmitted to the Commissioner to maintain the approved CPM schedule, but in no event more than five days after receipt ofthe Commissioner's comments.
Shop Drawings: After review by the Commissioner, one reproducible stamped by the Commissioner as previously described in Section V.B.3 above will be returned to you.
Submission and Review of Samples: If a considerable range of color, graining, texture or other characteristics may be anticipated in finished products, you must furnish a sufficient number of Samples of the specified "materials to indicate the full range of those characteristics that will be present in the finished products. Any product delivered or erected without submission and review of full-range Samples is subject to rejection. Each tag or sticker must have clear space for your stamps and those of the Commissioner. Notice of the result of the review will be provided to you with one of the stamps indicated in Section V.B.3 above. Rejected samples will be returned. Accepted samples will be retained by the Commissioner and become the property of the City. Where color samples are required to be submitted, color samples must be submitted in the actual material that will finally be installed in the Work. The various parts of the Work must be in accordance with the reviewed and approved Samples.
Product Data: After review by the Commissioner, two sets of Product Data stamped by the Commissioner as previously described will be returned to you.
C. Source of Materials
City Funded V Shop Drawings, Product Data, Records and Samples
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
You must notify the Commissioner in writing as soon as possible after the Contract has been awarded, but not less than three weeks before the need for inspection and testing of the source (or sources) from which you expect to obtain the various construction materials. The source of supply of each material used must be approved by the Commissioner before delivery is commenced. If sources previously approved are found to be unacceptable at any time and fail to produce materials satisfactory to the Commissioner, you must furnish materials from other approved sources.
Record Documents
At Substantial Completion, you must deliver to the Commissioner, in suitable transfer cases v clearly marked "Record Documents," all Record Drawings, Record Shop Drawings, warranties and guaranties, photographs, video Records (if any are required), Product Data, instructions, parts list, and operations and maintenance manuals arranged in proper order and indexed.
Record Drawings
As the Work progresses, you and the Subcontractor for each trade or division of work, under your direction must keep a complete and accurate record ofthe following:
Changes between the Work as shown on the Contract drawings and the Shop Drawings indicating the Work as actually installed;
The specific location of all infrastructure elements, including piping, valves, ductwork, equipment, driveways, catch basins, sewer lines, waterlines, water mains, and other such elements that were not accurately located or changed location or elevation from that shown on the Contract drawings; and
Equipment schedules indicating manufacturers' names and model numbers installed.
You must record changes neatly and correctly daily on blue line prints of the Contract drawings updated daily. You must keep this record set of Contract drawings at the job site for inspection by the Commissioner. Upon completion of the Work, you must submit a final set of full-size prints to the Commissioner for review and acceptance.
At the time Record Drawings are delivered to the Commissioner, you and each Subcontractor must certify, in writing, that the Record Drawings are complete and accurate.
Record Shop Drawings and Product Data
As the work progresses, you must keep a complete and accurate record of the changes and deviations from the Work as shown on the Shop Drawings and Product Data indicating the Work performed. You must furnish Record Shop Drawings in a form and quantity acceptable to the Commissioner. Record Shop Drawings must be submitted for all items reviewed as Shop Drawings. Record Shop Drawings must be legibly drawn on sheets of mylar or such other medium as directed by the Commissioner. Record Shop Drawings must be submitted on the same size sheets as the Contract Document drawings and include an index of all items.
You must furnish six record copies of Product Data in loose leaf binders. Loose leaf binders must be subdivided by Submittal numbers and must contain an index of all items.
City Funded V Shop Drawings, Product Data, Records and Samples
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
Construction Progress Photographs
You must submit to the Commissioner construction progress photographs consisting of exterior and interior views of the Work, with the date and location of the photographs as selected and directed by the City. If requested at any time by the Commissioner, you must use digital photography, at the resolution specified by the Commissioner. You must provide three prints of each view to the Commissioner within five days of taking the photographs. If digital photography is not requested or until it is requested, then you must provide each photograph on an 8" x 10" smooth surface, glossy, black and white print, on single-weight commercial-grade stock. The 1" wide margin, which is punched for a standard 3-ring binder, will have a left-sided margin for vertical shots and a top-sided margin for horizontal shots. A label will be included on the on the front bottom margin, which will contain the project name and date that the photograph was taken. On the back of each print, you must provide an applied label or rubber stamp impression with the following information:
Name of the Project;
Name and address ofthe photographer;
Name of the Architect;
Your name;
Date the photograph was taken;
Description of vantage point, in terms of location, direction (by compass point), and elevation or level of construction.
Notation of vantage point marked for location and direction of shot on a key plan of the site and building, with elevation (story height) noted.
The photographs must be taken monthly, coinciding with the cutoff date associated with each application for payment. From time^o-time the City may issue a request for additional photographs, in addition to the periodic photographs specified. Additional photographs are not included in the Contract Price and will be paid for by Change Order.
Instructions, Parts List and Operation and Maintenance Manuals
You must furnish a complete list of equipment actually installed. The list must include a copy of pertinent nameplate data, name and address of local representative who stocks or furnishes repair or replacement parts, and name, address, and telephone number of the Subcontractor responsible to you for the equipment under the guarantee. You must guarantee any such equipment with respect to the City.
You must submit suitable operating instructions for each major component of equipment and its controls. Instructions must include a schematic diagram accurately showing equipment and controls as installed. Included with each diagram must be a set of simple operating instructions stating how the system is stopped and started, what adjustments are to be made by the operator, and what to do in case of an emergency. Five copies of proposed instructions must be submitted to the Commissioner for review and acceptance. Upon acceptance, you must post applicable instructions as directed by the Commissioner.
You must submit maintenance data prepared by the manufacturer of each major component of equipment and its controls. Data must include complete parts list, itemized lists of
City Funded V Shop Drawings, Product Data, Records and Samples
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
common purchase items of materials (e.g., bearings, packing, connectors, sealing devices, and other standard items) indicated by their standard trade designation, recommended routine and inspection maintenance, including testing recommendations to evaluate efficiency of performance, lists of special tools and gauges, lubricating instructions, and recommended spare parts lists, tolerances and clearances required for maintenance, and trouble-shooting guides prepared in a simple format to indicate complaint or problem, probable cause, and remedy. You must submit five copies of the proposed maintenance data to the Commissioner for review and acceptance in accordance with Article XIV.
I. Adjustment of Equipment
Before the Work is turned over to the City, you must furnish the necessary instruments, test equipment, services, and personnel required to adjust and balance each piece of equipment in order to provide a smoothly functioning, well-integrated system complying with the letter and intent of the Contract.
J. Project Account Records
Project Data and Records
You and each Subcontractor must keep an accurate record showing the names, occupation, and the actual hourly wages paid to all laborers, workers and mechanics employed by them in connection with the Work. The record must be open at all reasonable hours to the inspection of the Commissioner and to the Director of Labor of the State of Illinois and his deputies and agents. You also must furnish the Commissioner and the Commissioner with certified copies of the payrolls, in accordance with Section XIII.B.3.d.
You must furnish to the Commissioner upon request a written statement, verified by affidavit, giving the names and addresses of all persons, firms and corporations who have up to that date furnished labor or materials in the performance of the Contract and the amounts due or to become due them.
You and all Subcontractors must furnish the Commissioner with such information as the Commissioner may require relating to labor and materials, including all information necessary to determine the cost of the Work, such as the number of workers employed, their pay, the distribution of labor into Work items, equipment time distribution and any other information that the Commissioner may require. You must, on request, furnish the Commissioner with copies of delivery tickets and invoices, in triplicate, covering the expenditures on the Contract.
Audits
a. You and your Subcontractors must furnish the Commissioner such information as he may request regarding the progress, execution, and cost of the Work. You must maintain complete records showing actual time devoted and costs incurred, adopting accounting procedures and practices sufficient to record properly all costs of whatever nature claimed to have been incurred and anticipated to be incurred for or in connection with the Work. This system of accounting must accord with generally accepted accounting principles and practices, consistently applied throughout. You must maintain its books, records, documents and other such evidence for five years after final payment.
City Funded V Shop Drawings, Product Data, Records and Samples
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
b All books and accounts you and your Subcontractors are required to keep in connection with the Work under this Contract must be open to inspection and audit by authorized representatives of the City at reasonable times during the performance of the Work, and they must be retained in a safe place and available for inspection and audit during the five-year period after final payment, as provided above. No provision in this Contract granting the City a right of access to records and documents is intended to impair, limit, or affect any right of access to such records and documents that the City would have had in the absence of such provisions.
If the City, in its sole discretion, chooses to conduct an audit either during the performance of the Work or in the five-year period after final payment, each audited calendar year or partial calendar year is considered an "audited period." If, as a result of such an audit, it is determined that you or any of your Subcontractors have overcharged the City in the audited period, the City will notify you. You must then promptly reimburse the City for any amounts the City has paid you due to the overcharges and also some or all of the cost of the audit, as follows:
If the audit has revealed overcharges to the City representing less than 5% of the total value, based on the Contract Prices, of the goods, work, or services provided in the audited period, then you must reimburse the City for 50% of the cost of the audit and 50% of the cost of each subsequent audit that the City conducts;
If, however, the audit has revealed overcharges to the City representing 5% or more of the total value, based on the Contract Prices, of the goods, work, or services provided in the audited period, then you must reimburse the City for the full cost of the audit and of each subsequent audit.
Your failure to reimburse the City in accordance with V.J.2.C above is an event of default under this Contract, and you will be liable for all of the City's cost of collection, including any court cost and attorneys' fees.
Confidentiality
All of the reports, information, or data, prepared or assembled by or provided to you under this Contract are confidential and except as specifically authorized in this Contract or as may be required by law, you must not make available the reports, information, or data, to any other individual or organization, without the prior approval of the Commissioner. This requirement will survive expiration or termination of this Contract.
Electronic Records
Upon request by the Commissioner, Contractor shall provide the City electronic versions of any hard-copy record documents that the Contractor is required to prepare by the Contract.
VI. ASSIGNMENT
A.' Assignment of Contract by Contractor
You must not assign the Contract, in whole or in part, without the prior written consent of the Commissioner. The consent of the Commissioner will not relieve you from any obligations under this Contract, or in any other way change the terms of this Contract
City Funded V. Shop Drawings, Product Data, Records and Samples 22
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
Assignment of Funds or Claims by Contractor
You must not transfer, pledge or assign any Contract funds or claims due or to become due without the prior written consent of the Commissioner. The transfer, pledge or assignment of any Contract funds, either in whole or in part, or any interest in the Contract funds, that are due or to become due to you, without the prior written consent of the Commissioner, is void with respect to the City.
Assignment of Contract by City
The City reserves the right to assign or otherwise transfer all or any part of its interests under this Contract without your consent or approval.
Assigns
All of the terms and conditions of this Contract are binding upon and inure to the benefit of the parties to it and their respective legal representatives, successors, transferees, and assigns.
Requests to Subcontract
All requests to subcontract must be accompanied by three copies of a written subcontract agreement that sets forth the scope of services to be subcontracted, the lump sum or unit price for the services and the signature of the subcontracting parties. Proposed Subcontractors must not commence Work on any portion of the Project without prior written approval by the Commissioner.
VII. QUALITY OF WORKMANSHIP, EQUIPMENT AND MATERIALS
Standard of Performance
In addition to performing the Work in full compliance with the Contract you must perform, or cause to be performed, all Work required of you under the terms and conditions of this Contract with that degree of skill, care, and diligence normally exercised by qualified and experienced contractors in performing work in projects of a scope and magnitude comparable to the Work.
Correction of Work
You must, upon discovery of any defective or non-conforming Work, or when directed in writing by the Commissioner, promptly re-perform, correct or remove all Work identified to be defective or as failing to conform to the standards set forth in, or any requirement of the Contract, whether or not completed. You must bear all costs of correcting the defective or non-conforming Work, including costs associated with removing any defective or non-conforming Work, replacing the defective or non-conforming Work with non-defective, conforming Work and any compensation for any additional equipment, materials and/or services made necessary by the removal and replacement.
If you do not proceed with re-performance, correction or removal of the defective or nonconforming Work after written notice from the City within the time period designated by the notice, the City may correct or remove it and may store the materials and/or equipment at your expense, then complete the corrective Work. If you do not pay the costs incurred for the removal, storage and correction within 10 days after you receive
City Funded VII. Quality of Workmanship, Equipment and Materials
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 20I7]
written notice from the City of the amount of the costs, the City may upon 10 additional days' written notice, sell any such materials and/or equipment at an auction or at a private sale and'Will account for the net proceeds, after deducting all the costs you are required to bear, including compensation for the City's services. If the proceeds of sale do not cover all costs for removal and correction of the Work, the difference will be charged to you with a deduction of any amounts due you, and an appropriate Contract modification will be issued. If later payments due you are not sufficient to cover the amount, you must pay the difference to the City, or the City may deduct the amount from any other funds due to you, including any amounts due under any other contract between City and you.
You must not perform any work without lines and grades or beyond the lines shown on the drawings or outside the scope of the Contract, without the prior written consent or direction of the City. It is not authorized, and if you do so you perform it at your sole expense. Upon direction of the City, work so done must be removed or replaced and those areas restored to their previously existing state at your sole expense.
Neither the determination of Final Completion and Acceptance of the Work, nor payment, nor any provisions in the Contract will relieve you of responsibility for defective or non-conforming Work, faulty materials, equipment or workmanship, and unless otherwise specified, you must remedy any defects due to the foregoing and pay for any damage to the Work or other property resulting from defective or non-conforming Work, or faulty materials, equipment or workmanship throughout the Warranty Period, as defined in Section VILE, "Warranties," below, or such other period of time afforded by industry custom or law, whichever is longer. The City will give you written notice of the observed defects with reasonable promptness.
C. Materials and Equipment
Quality of Materials. Unless otherwise specified in the Contract you must use all new materials for the Project and use them in such a manner as to produce completed Work that conforms with the Contract and is acceptable in every detail to the Commissioner. Only materials that conform to the requirements of these specifications may be incorporated or used in the Work. In the absence of a definite specification, materials must be the best of their respective kind with properties best suited to the Work required.
Materials Inspection and Responsibility. Before any material is incorporated into the Work, you must submit a "Request for Materials Inspection" to the Commissioner. You are solely responsible for submitting the requests with sufficient time for the City to conduct its inspection. You are not entitled to payment for uninspected materials. The City has the right to inspect any material to be used in carrying out this Contract. The City does not assume any responsibility for the availability of any materials or equipment required under this Contract. By performing any tests or accepting any materials, the City in no way relieves you of any of your obligations or responsibility under this Contract. Materials, components or completed Work that do not comply with the Detailed Specifications and other requirements of this Contract may be rejected by the City, and you must replace them at no additional cost to the City. After you receive notice from the City that materials or components have been rejected, you must promptly remove them from the City's premises at no additional cost to the City.
City Funded VII Quality of Workmanship, Equipment and Materials 24
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised .lime 201 7)
D. Substitution of Materials
The City will consider your request for substitution in cases of product unavailability or other conditions beyond your control.
You must submit each request for substitution separately and each must include:
a. Complete data substantiating compliance of proposed substitution with requirements
stated in the Contract;
Product identification, including manufacturer's name and address
Manufacturer's literature identifying:
Product description
Reference standards
Performance and test data
Samples, as applicable
Names and address of similar projects on which the product has been used, and date of each installation;
Itemized comparison of the proposed substitution with product specified that lists significant variations;
Data relating to changes in the Schedule;
Any effect of substitution on other parts of the Work, any Subcontractors, or any separate contracts;
List of changes required in other Work or products;
Accurate cost data comparing proposed substitution with product specified, including the amount of any net change to Contract Price;
Designation of required license fees or royalties; and
Designation of availability of maintenance services, sources of replacement materials.
When you make a formal request for substitution make you are warranting and representing that:
The proposed substitution is equivalent to or superior in all respects to the product specified;
The same warranties and guarantees will be provided for the substitute as for the product specified; and
You will coordinate the installation of accepted substitutes into the Work and will make such changes as may be required for the Work to be complete in all respects.
If evidence you present does not, in the sole opinion of the Commissioner, provide a sufficient basis for reasonable certainty that the proposed substitution or deviations will provide a quality, result, function, and esthetic appearance, among other attributes, at least equal to that attainable by the specified product, the Commissioner may reject the substitution or deviation without further investigation.
City Funded VII. Quality of Workmanship, Equipment and Materials 25
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised .lime 20] 7)
The Commissioner will judge the design and appearance of proposed substitutes on the basis of their suitability in relation to the overall design of the Project, as well as for their intrinsic merits. The Commissioner will not approve proposed substitutes as equal to items specified that, in the Commissioner's opinion, would be unharmonious, or otherwise inconsistent with the character, quality or design of the Project.
You must bear any additional cost, or any loss or damage, arising from the substitution of any material or method for those specified, including the cost for damages incurred by other contractors notwithstanding approval or acceptance of the substitution by the Commissioner, unless the substitution was initiated by the written request or direction of the Commissioner.
The investigation review and approval of substitute materials requires a minimum of 30 days beyond that required for specified routine items. No request for a delay or disruption will be allowed whether or not the substitution is granted.
Approval by the Commissioner of a substitution of material will be given in a Contract modification as required in Article XIV, "Changes in the Work."
E. Warranties
You warrant all Work furnished under this Contract against defective materials and workmanship, improper performance and non-compliance with the Contract for a period of one year after the date of Final Completion and Acceptance of the Work ("Warranty Period"), except as otherwise specifically stated in other parts of the Contract or within such longer periods of time as may be provided by law or by the manufacturer, which periods will then become the Warranty Period as applicable. Your warranty will be in addition to any Manufacturers' Warranties.
Your written warranty will include the name of the project as designated in the Contract, be signed by an officer of the company having authority to provide the warranty, and state: "This document serves as a one - year written warranty for the Work performed, and material and equipment installed on the above referenced project. This warranty incorporates all provisions of the Contract that refer or relates to the warranty. This warranty begins on (date)
During the Warranty Period, you must repair and replace at your own expense, when so ordered by the Commissioner, all Work that may develop defects whether these defects may be inherent in the equipment or materials, in the functioning of the piece of equipment, or in the functioning and operation of pieces of equipment operating together as a functional unit. Any equipment or material that is so repaired or replaced will have the Warranty Period extended for a period of one year from the date of the last repair or replacement.
You must bear all costs associated with any repair or replacement under this section, including removal, material, transportation, and reinstallation.
Manufacturer's Warranties a. You must:
(1) ensure that all required Manufacturer's Warranties pass through to the City and the Department;
City Funded VII Quality of Workmanship, Equipment and Materials 26
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised .lime 201 7)
(2) submit all applicable manufacturers' warranties to the Commissioner and ensure that all warranty forms have been completed in the Department's name and registered with the appropriate manufacturers.
b. Whenever you make repairs or provide replacements under Section VII.E.3, you must provide a manufacturer's warranty for the repaired or replaced Work, if standard with the manufacturer, in addition to your warranty under Section VII.E.2.
VIII. PERSONNEL
Competency of Workers
You must employ only competent and efficient laborers, mechanics or artisans on the Work, as demonstrated by completion of a specific training program or demonstrated project experience. Whenever, in the opinion of the Commissioner, any worker is careless, incompetent, violates safety or security rules, obstructs the progress of the Work, acts contrary to instructions or acts improperly, or fails to follow the safety requirements of this Contract, you must, upon request of the Commissioner, remove the worker from the Work. You must not permit any person or worker to enter any part of the Work or any buildings connected with it who is under the influence of intoxicating liquors or controlled substances.
Supervision and Superintendence
While Work is in progress, either by your labor force or that of your Subcontractor, you must have a full-time, experienced and qualified superintendent assigned to the Work. You must superintend the Work and must have a competent superintendent at the job site at all times with authority to act for you as the contact person with the Commissioner.
Contractors Project Personnel
No separate payment will be made to you for the cost of personnel. Those costs must be included in the Contract Price.
Key Personnel
Upon award of the Contract, you will submit a project staff organization chart that includes the names and resumes of employees in key positions for this project. All employees in key positions must be approved by the Commissioner.
Changes in the assignment of any key personnel due to commitments not related to this Contract are prohibited without Commissioner's approval. If any key personnel, selected in accordance with the key personnel provisions under this section of the Contract, should become unable to continue in the performance of the assigned duties for reasons due to death, disability or termination, you must promptly notify the Commissioner and explain the circumstances.
Under a request by Commissioner, you must provide to the Commissioner, within seven days, the name of the person substituting for the individual unable to continue, together with any information the Commissioner may require to judge the experience and competence of the substitute person. Upon approval by the Commissioner, the substitute person will be assigned to the project. If the Commissioner rejects the substitute, you will have seven days after that to provide the name a second substitute person, with any information the Commissioner may require, until a proposed replacement has been approved by the Commissioner.
City Funded VII Quality of Workmanship, Equipment and Materials 27
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
Prevailing Wage Rates
In the performance of the Work, you are fully responsible for paying not less than the prevailing rate of wages as determined by the Illinois Department of Labor, which must be paid to all'laborers, mechanics, and other workers performing Work under this Contract.
Your attention is called to the generally prevailing hourly rate of wages, as determined by the Illinois Department of Labor, which are included in the DB Agreement and which are incorporated into the Contract. These wage rates are also the prevailing wage rates for the City of Chicago, as determined by the Department as of the date of publication of these specifications.
The wage rates set forth in these specifications were the rates in effect at the time these specifications were issued. In the performance of the Work, however, you are fully responsible for paying the generally prevailing hourly rate of wages in effect, as determined by the Illinois Department of Labor, at the time the Work is; performed. If the Illinois Department of Labor revises the prevailing rate of hourly wages to be paid for the Work before completion of the Project, the revised rate applies to this Contract from the effective date of the revision, but the revision does not entitle you to any increased compensation under the terms of this Contract.
As a condition of making payment to you, the City may require you to submit an affidavit to the effect that not less than the prevailing hourly wage rate is being paid to laborers, mechanics, and other workers employed on this Contract in accordance with Illinois law.
"Living Wage"
Section 2-92-610 of the Municipal Code of Chicago provides for a base wage for certain categories of workers employed in the performance of City contracts, specifically non-City employed security guards, parking attendants, day laborers, home and health care workers, cashiers, elevator operators, custodial workers, and clerical workers ("Covered Employees"). Accordingly, pursuant to Section 2-92-610 and regulations promulgated thereunder:
if the Contractor has twenty-five (25) or more full-time employees, and
if at any time during the performance of the contract the Contractor and/or any subcontractor or any other entity that provides any portion of the Services (collectively "Performing Parties") uses twenty-five (25) or more full-time security guards, or any number of other full-time Covered Employees, then
the Contractor must pay its Covered Employees, and must assure that all other Performing Parties pay their Covered Employees, not less than the minimum hourly rate as determined in accordance with this provision (the "Base Wage") for all work performed pursuant to the Contract.
The Contractor's obligation to pay, and to assure payment of, the Base Wage will begin at any time during the Contract term when the conditions set forth in A.1 and A.2
- above are met, and will continue thereafter until the end of the Contract term.
City Funded VIII Personnel
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 20I7)
As of July 1, 2017, the Base Wage is $12.30 per hour. Each July 1st, thereafter the Base Wage will be adjusted, using the most recent federal poverty guidelines for a family of four (4) as published annually by the U.S. Department of Health and Human Services, to constitute the following, the poverty guidelines for a family of four (4) divided by two thousand (2000) hours or the current base wage, whichever is higher. At all times during the term of this Contract, Contractor and all other Performing Parties must pay the Base Wage (as adjusted in accordance with the above). If the payment of prevailing wages is required for work or services done under this Contract, and the prevailing wages for Covered Employees are higher than the Base Wage, then the Contractor must pay the prevailing wage rates.
The Contractor must include provisions in all subcontracts requiring its subcontractors documentation acceptable to the Commissioner demonstrating that all Covered
Employees, whether employed by the Contractor or by a subcontractor, have been paid the Base Wage, upon the City's request for such documentation. The City may independently audit the Contractor and/or subcontractors to verify compliance herewith. Failure to comply with the requirements of this Section will be an event of. default under this Contract, and further, failure to comply may result in ineligibility for any award of a City Contract or subcontract for up to three (3) years.
Not-for-Profit Corporations: If the Contractor is a corporation having Federal tax-exempt status under Section 501(c)(3) of the Internal Revenue Code and is recognized under Illinois not-for-profit law, then the provisions of Section A through D above do not apply.
G. Minimum Wage, Mayoral Executive Order 2014-1
Mayoral Executive Order 2014-1 provides for a fair and adequate Minimum Wage to be paid to employees of City contractors and subcontractors performing work on City contracts.
If this contract was advertised on or after October 1, 2014, Contractor must comply with Mayoral Executive Order 2014-1 and any applicable regulations issued by the CPO. The Minimum Wage to be paid pursuant to the Order is $13.45 per hour. The Minimum Wage must be paid to:
All employees regularly performing work on City property or at a City jobsite.
All employees whose regular work entails performing a service for the City under a City contract.
The Minimum Wage is not required to be paid to employees whose work is performed in general support of contractors operations, does not directly relate to the services provided to the City under the contract, and is included in the contract price as overhead, unless that employee's regularly assigned work location is on City property or at a City jobsite. It is also not required to be paid by employers that are 501(c)(3) not-for-profits.
Except as further described, the Minimum Wage is also not required to be paid to categories of employees subject to subsection 4(a)(2), subsection 4(a)(3), subsection 4(d), subsection 4(e), or Section 6 of the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq., in force as of the date of this Contract or as amended. Nevertheless, the Minimum Wage is required to be
City Funded VIII Personnel 29
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
paid to those workers described in subsections 4(a)(2)(A) and 4(a)(2)(B) of the Illinois Minimum Wage Law.
Additionally, the Minimum Wage is not required to be paid to employees subject to a collective bargaining agreement that provides for different wages than those required by Mayoral Executive Order 2014-1, if that collective bargaining agreement was in force prior to October 1, 2014 or if that collective bargaining agreement clearly and specifically waives the requirements of the order.
If the payment a Base Wage pursuant to Municipal Code of Chicago Sect. 2-92-610 is required for work or services done under this Contract, and the Minimum Wage is higher than the Base Wage, then the Contractor must pay the Minimum Wage. Likewise, if the payment of a prevailing wage is required and the prevailing wage is higher than the Minimum Wage, then the Contractor must pay the prevailing wage.
Contractors are reminded that they must comply with Municipal Code Chapter 1-24 establishing a minimum wage.
H. Employment Preferences
Veterans Preference
In accordance with the Veterans Preference Act, 330 ILCS 55/0.01 et seq., employment and appointment preference shall be given to veterans when filling positions. This preference may be given only where the individuals are available and qualified to perform the Work. Contractor must ensure that the above provision is inserted in all contracts it enters into with any Subcontractors and any labor organizations that furnish skilled, unskilled and craft union skilled labor, or that may provide any material, labor, or services in connection with this Agreement.
Chicago and Project Area Residency Requirements
If the funding under this contract is $100,000 or more, Contractor and all subcontractors that perform work on the site on the construction project undertaken pursuant to this contract shall comply with the minimum percentage of total worker hours performed by actual eligible residents of the City of Chicago as specified in § 2-92-330 of the Municipal Code and rules and regulations adopted thereunder,, unless otherwise prohibited by law. 7.5% of the total work hours must be performed by project area residents and 50% of the total work hours must be performed by city residents unless the Chief Procurement Officer determines otherwise. Work hours performed by project area residents are counted as work hours performed by city residents for purposes of calculating the minimum work hour percentage required to be performed by city residents. In addition to complying with this requirement, Contractor and all Subcontractors must make good faith efforts to utilize qualified eligible residents of the City of Chicago in both unskilled and skilled labor positions.
"City residents" means persons domiciled within the city.
"Project area residents" means persons domiciled within that part of the city designated as the project area in the information for bidders issued by the Department of Procurement Services.
City Funded VIII Personnel
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
"Domicile" means an individual's one and only true, fixed and permanent home and principal establishment.
"Eligible residents" means city residents and project area residents.
"Actual residents of the City of Chicago" shall mean persons domiciled within the City of Chicago. The domicile is an individual's one and only true, fixed and permanent home and principal establishment.
The contractor shall provide for the maintenance of adequate employee residency records to ensure that actual eligible Chicago residents are employed on the project. The contractor and subcontractors shall maintain copies of personal documents supportive of every Chicago employee's actual record of residence.
Certified payroll reports (U.S. Department of Labor Form WH-347 or equivalent) must be submitted weekly to the Commissioner of the supervising department in triplicate, shall identify clearly the actual residence of every employee on each submitted certified payroll. The first time that an employee's name appears on a payroll, the date that the company hired the employee should be written in after the employee's name.
Full access to the contractor's and subcontractors' employment record shall be granted to the Chief Procurement Officer, the Commissioner ofthe supervising department, the Superintendent of the Chicago Police Department, the inspector general; or any duly authorized representative thereof. The contractor and subcontractors shall maintain all relevant personnel data in records for a period of at least three years after final acceptance of the work.
At the direction of the supervising department, affidavits and other supporting documentation will be required of the contractor to verify or clarify an employee's actual address when doubt or lack of clarity has arisen.
Good faith efforts on the part of the contractor to provide utilization of actual eligible Chicago residents shall not suffice to replace the actual, verified achievement of the requirements of this section concerning the worker hours performed by actual eligible Chicago residents.
When work is completed, in the event that the City has determined that the contractor
failed to ensure the fulfillment of the requirement of this section concerning the worker
hours performed by actual eligible Chicago residents or has failed to report in the
manner as indicated above, the City will thereby be damaged in the failure to provide the
benefit of demonstrable employment to Chicagoans to the degree stipulated in this
section. Therefore, in such a case of non-compliance it is agreed that 1/20 of 1 percent
(.05%), 0.0005, of the approved contract value for this contract shall be surrendered by
the contractor to the City in payment for each percentage of shortfall toward the
City Funded VIII. Personnel 31
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
stipulated residency requirement. Failure to report the residency of employees entirely and correctly shall result in the surrender of the entire liquidated damages as if no Chicago residents were employed in either ofthe categories. The willful falsification of statements and the certification of payroll date may subject the contractor or subcontractors or employee to prosecution.
Nothing herein provided shall be construed to be a limitation upon the "Notice of Requirements for Affirmative Action to Ensure Equal Employment Opportunity, Executive Order 11246" and "Standard Federal Equal Employment Opportunity, Executive Order 11246," or other affirmative action required for equal opportunity under the provisions of this contract.
3. Employment of Illinois Laborers on Public Works Projects
Contractor must use only Illinois laborers in the performance of this Contract to the extent (1) required by the Employment of Illinois Laborers on Public Works Projects Act, 30 ILCS, 570/0.01, as amended from time to time and (2) otherwise permitted by law.
I. Working hours in city contracts
Eight hours constitutes a legal day's work under this Contract, in accordance with § 2-92-220 of the Municipal Code of Chicago.
IX. PERMITS AND LICENSES
Contractor Obtains Permits
Except for the three types specified below, you must obtain all permits wherever the Work under this Contract requires them, including from the City of Chicago or other public authorities. You must furnish triplicate copies of the permits to the City before the Work covered by them is started. NO WORK IS ALLOWED TO PROCEED BEFORE SUCH PERMITS ARE OBTAINED.
The City will obtain permits required from the Metropolitan Water Reclamation District of Greater Chicago, the Illinois Division of Waterways and the U.S. Army Corps of Engineers.
Contractor Pays Permit Fees
The special use of, or removal, alteration or replacement of certain City-owned facilities and appurtenances such as traffic signs, parking meters, trees, sewers, hydrants, bridges and viaducts which are required for you to perform your Work are subject to all applicable Municipal Ordinances. It is your responsibility to obtain all the necessary permits and pay the associated fees. You must furnish copies of the permits to the City before the Work covered is started. Information with regard to the above may be obtained by contacting the appropriate City Departments.
Occupancy Placard and Fees
You must provide an occupancy placard indicating occupancy and floor plans based upon key plans provided by the Architect. It is your responsibility to pay all fees and expenses related to providing the occupancy placard.
City Funded VIII. Personnel
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
X. COORDINATION WITH OTHER CITY DEPARTMENTS
Water System Work and Usage
If water from a City hydrant is necessary for the execution of the Work, you must obtain a hydrant permit from the City's Department of Water Management. You must obtain a permit from that department also for any construction, repair or adjustment of any water main, branch or service connection. Requests for permits must be made at the Department of Water Management, City Hall, 121 North LaSalle Street, Room 906, Chicago, Illinois 60602; 312/744-7060.
Sewer System Work
If you will be constructing, repairing, adjusting or cleaning any subsurface structure designed to collect or transport storm and/or sanitary waste water, either in private property or in the public way you, through a licensed drainlayer, must obtain a permit issued under this Section X.B. (A licensed drainlayer is a person possessing a current sewer and drain license issued by the Department of Water Management.) Requests for permits must be made at the Department of Water Management (Sewers and Drains), 333 S. State Street, Room 410, Chicago, IL 60604-3971; 312/747-8117.
Project plans must be submitted to the Department of Water Management (Sewers and Drains) sufficiently in advance for examination and review. Plans meeting the department's requirements must be submitted with the application for permit at least four days before the issuance of permit. When applying for a permit, you must submit three sets of plans that show all new underground sewer Work inside and around the project with a clear site or location plan together with the estimate of quantities for sewer sizes and sewer structures to be installed.
A copy of the permit must be on the Work site before the start of construction. Failure to obtain a permit before the start of construction will result in a penalty and could result in the revocation of the drainlayer's license.
You must arrange for sewer inspections at least 48 hours before the start of Work. Inspections may be requested by calling (312)744-7501 for Plumbing Inspections and (312) 747-7892 for Mason Inspections.
Parking Meter Removal and Replacement
The City via the metered parking concessionaire shall close or remove and opened or . reinstall, any parking meters, including signs indicating pay boxes, as may be required. However, you must pay all fees and lost meter revenues required by § 9-68-050 of the Chicago Municipal Code. You must advise the Department of Transportation, Bureau of Inspections, Construction Compliance Section (Public Way Permits), Room 804, City Hall, Chicago, Illinois 60602, in writing at least two weeks in advance of the closure citing the location and meter number of the meters to be closed or removed. Closures of less than 6 hours on a given day and limited to less than 10 business days are strongly encouraged, and you must be prepared to detail any reason requiring closures of a longer hourly and daily duration.
You may not remove any parking meters without the express written consent of the Commissioner. If you violate this provision, you (a) recognize that the City will suffer
City Funded X Coordination with Other City Departments 33
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised Ittne 2017)
damages as a result, including the costs incurred by the City in tracking, retrieving, and repairing damage to the parking meters, and (b) will be liable for liquidated damages in the amount of $350 for each single-space parking meter or $10,000 for each pay box you removed. All amounts, including any other debts, will be deducted from any amounts due or that may become due you.
Notification must be provided immediately once meters can be opened or reinstalled. That notification must be e-mailed to the Department of Revenue at parking-meter-closure@ citvofchicaqo.org . Please include "REOPEN/REINSTALL" in the subject line and provide details concerning permit numbers, locations, and dates that the meters may be opened or reinstalled.
The City of Chicago Department of Transportation and the Department of Revenue may modify these requirements in the future.
Traffic and Parking Sign Removal and Replacement
The City will remove and re-install any traffic and parking sign(s) as may be required, however, you will be responsible for all fees relative to the removal and replacement of all of the City's traffic and parking signs. You must inform the Bureau of Signs and Markings, in writing, of the location of each sign to be removed and specify its distance from the property line of the nearest cross street. Each sign legend must also be stated. This information must be provided at least five days before removal. You must also inform the Bureau of Signs and Markings, in writing, of when signs may be reinstalled as soon as this date is known. Contact the Bureau of Signs and Markings, 3458 S. Lawndale, Chicago, Illinois, 60623, Attn.: Deputy Commissioner, (312)747-2210.
Trees
In accordance with § 10-32-060 et seq. of the Municipal Code, you must obtain a permit from the Bureau of Forestry when removing planting, trimming, spraying, or in any way affecting the general health or structure of trees in the public way. There is no fee for this permit. The permit must be obtained from the Bureau of Forestry Permits Division; 3200 S. Kedzie, Chicago, Illinois 60623; (312/747-2098), fax (312) 747-2178.
The Bureau of Forestry requires 48 hours' notice before starting Work for all activities with the exception of tree planting, which requires two weeks' prior notice. To obtain tree planting permits, two copies of the site plan must be presented to the Bureau for its review and approval. A Bureau representative must also assist in the selection of those trees to be planted in the public way. Tree planting standards and specifications are outlined in the Bureau of Forestry's "Manual of Tree Planting Standards," which is available upon request from the Bureau of Forestry.
Demolition
If demolition of a structure or removal of an underground storage tank is required during construction, you must obtain a permit and pay the required fee as set forth in the Municipal Code and its amendments to date. The permit must be obtained from the Department of Construction and Permits, City Hall, 121 North LaSalle Street, Room 900, Chicago, Illinois 60602; (312/744-3400).
City Funded X Coordination with Other City Departments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised .Iliiic 2017)
XI. SCHEDULE
Time
The date for commencement of the Work is the date set forth in the Contract or such other date as may be established at the discretion of the Commissioner in a Notice to Proceed. Within five calendar days after the award and release of the Contract, you must provide the Commissioner, a schedule for the performance of the Work, which complies in all respects with the Contract, within the Contract Time. The schedule may be used as a means of determining the progress of your performance of the Work, but neither the provision of the schedule to the City, nor the City's acceptance or use of the schedule, acts in any way to relieve you of any of your obligations under the Contract.
Progress and Completion. TIME IS OF THE ESSENCE IN THIS CONTRACT. No time extensions will be allowed unless they are contained in a Contract Modification that has been approved and executed by the City. Liquidated damages will be assessed against you for late completion of the Work and failure to achieve any milestone dates that provide for liquidated damages set forth in the Contract. You must not suspend any Work that may be subject to damage by climatic conditions without the Commissioner's prior written approval. Notwithstanding any other terms contained in this Contract, you must take measures to protect the Work and to minimize the impact of such conditions on the progress of the Work.
Progress Schedule
You must begin performance of the Work and to prosecute it with all due diligence, so as to complete the entire Work under this Contract within the Contract Time stipulated, after the date of commencement of Work, as specified in the written Notice to Proceed to you. The date for the commencement of Work is not counted as a day, but each day after that, from midnight to midnight, is counted as one day and the last day counted is the date of Final Acceptance and Completion of the Work. You must, when necessary, use overtime, multiple shifts, weekend and/or holiday work to maintain the approved schedule at no additional cost to the City.
Except when otherwise specified by the Commissioner, you must provide the progress schedule ("Schedule") for the Work using the Critical Path Method ("CPM") as described in Section XI.D, "Critical Path Method Schedule," below.
The Commissioner's approval of your Schedule is done for the sole purpose of insuring that all CPM scheduling documents you prepare are in conformance with the Contract requirements. This approval does not relieve you of the responsibility for the means, methods, procedures and sequence of the construction process nor does it entitle you to additional funds for completing Work in a period that is less than the Contract Time.
Daily Progress Reports: You and all Subcontractors must prepare and submit to the Commissioner daily progress reports on the various parts of the Work, including in the report the number of workers and the classification of the trades involved, equipment used and any pertinent information regarding possible delays in the Work.
Construction Operations Plan
1. You must, within 14 days after Notice to Proceed, submit to the Commissioner for review
the order of procedure you propose to follow in performing the Work. Work begins only
City Funded XII. Meetings 35
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised kmc ?M\T)
after your proposed order of procedure in performing the Work and the Schedule have been submitted to and consented upon by the Commissioner, in writing. You understand that a reasonable amount of time is required by the Commissioner for the examination of the procedure and Schedule. As Work progresses, changes or modifications in the procedure and Schedule, may be required by the Commissioner. In that event, upon notice from the Commissioner to you, further Work is performed only in accordance with the changed or modified procedure and Schedule as have been submitted to and consented upon, by the Commissioner, in writing.
The Commissioner, in his/her sole discretion, may reject or require modification of any proposed or previously approved order of procedure, that he or she considers to be unsafe for the Work under this Contract, or for other Work being carried on in the vicinity, or for other structures, or for the public, or for workmen, engineers and inspectors employed thereon, or that will not provide for the completion of the Work within the period of time specified in the Schedule, or that is contrary to any other requirement of this Contract.
The City's acceptance or approval of any order or procedure or equipment that you submitted or employ does not in any manner relieve you of responsibility for the performance of the Work, or for the safety of the performance of the Work under this Contract, or from any liability whatsoever on account of any procedure employed by you, or due to any failure or movement of any structure or equipment furnished by it. Notwithstanding any approval by the Commissioner, should any structure or equipment installed under this Contract afterwards prove insufficient in strength or fail in any manner whatsoever, the insufficiency or failure in no way forms the basis of any claim for extra compensation for delay, or for damages or expenses caused by the insufficiency or failure, or for an extension of time for completion of the Work, or for material, labor or equipment required for repairing or rebuilding the structure or equipment, or for repairing or replacing any other Work that may have been damaged by the movement or insufficiency or failure of any such structure or equipment, respectively.
D. Critical Path Method ("CPM") Schedule
You must format the Schedule to show the proposed starting and completion date for the various stages of the Work, including any float time, and must prepare it in such a way that it can be used to plot actual progress against proposed progress. You must update the Schedule and submit it to the Commissioner no less than monthly or as directed by the Commissioner. The Commissioner may request more frequent Submittals. Monthly payment will be withheld for failure to submit updated Schedules. One copy of the Schedule must be submitted to the Commissioner in a reproducible format. A copy of the Schedule must be submitted on a computer diskette in a format acceptable to the Commissioner.
You must assure that the Schedule includes, at a minimum:
Project name, Contract number, Contractor's name, data date and plot date on each separate sheet. If multiple diagrams are prepared, each must, in addition to the above, include a descriptive title of that portion of the Work included in them.
The order and interdependency of activities, indicating the sequence in which you plan to perform the Work; the Schedule must describe and indicate the critical path;
City Funded XII Meetings 36
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
and
Estimates of man hours and/or crew sizes for each activity.
The dates for:
starting and completing the various stages of the Work, including milestones identified by the City in the Contract;
placing material orders, fabrication and delivery of materials and equipment;
preparation, submittal and approval of all required'submittals to the City;
procuring material and equipment furnished by the City;
interface activities performed by other contractors or Subcontractors upon which your Schedule depends;
all Work activities and field construction operations;
equipment installation, testing and balancing.
For purposes of the Schedule, "activity" means each logically separate part of the Work defined by an observable start and an observable finish, subject to the following:
To establish the scope of an activity for Schedule purposes, you must form a single activity from the largest grouping of related operations that permit a continuous and measurable flow of Work;
The scope of an activity must be small enough to permit a reasonable appraisal of its status or as directed by the Commissioner;
Each activity on the Schedule must be manpower loaded;
The activities must be defined so that the average activity has a value of approximately $25,000, with no activity exceeding $200,000 without the consent of the Commissioner; and
Activities of other contractors or companies that must be completed before the start of your Work or portion of Work must be included in the Schedule as milestones and identified with a designation approved by the Commissioner.
You must furnish the following information on the Schedule for each activity:
Activity numbers assigned to the related portions of Work in the format of the project specification division and section numbers. You must submit the activity numbers to the Commissioner for review and approval;
A description of the activity that is sufficiently detailed to permit an evaluation of your performance of the Work described;
Duration of the activity in days, unless otherwise noted;
d Responsibility code for each activity that is not performed by you, indicating which Subcontractor, supplier, fabricator, or other contractor is to perform the activity;
e Each activity must be identified with early/late start, early/late finish, and total float;
City Funded XII Meetings
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 2017)
f. A breakdown by monthly node of dollar amount and percentage of Contract Price.
In addition to the above, any activity whose start or finish dates has been specified elsewhere in the Contract must be shown as the specified dates in the Schedule
The following information must be furnished on the Schedule as summary items:
The projected total percentage complete, on a monthly basis;
Anticipated total partial payments, on a monthly basis, including Subcontractor payment breakdown; and
The projected total manpower requirements, on a weekly basis.
Within 14 days after receipt of the detailed Schedule and supporting documents, the Commissioner will either approve the Schedule or reject it with written comments. If the Schedule is rejected, you must submit a revised Schedule within seven calendar days of the date of rejection. The Commissioner's decision to reject the Schedule is final and you may not dispute it under Article XIX of the Contract.
You must provide prompt written notice to the Commissioner of any events or other changes that may delay or accelerate the Schedule.
If you fail to provide the Schedule within the time prescribed and/or updates within the stated time frames, it is an event of default under the Contract, and the Commissioner may, in addition to any other remedies available to the City, withhold monthly partial payments until such time as you submit the required information.
Changes to the Schedule
If you propose to make any changes to the Schedule, you must provide the Commissioner notice of the proposed changes, in writing, stating the reasons for the change, identifying each changed activity (including durations and interrelationships between activities) and providing a diskette of the proposed changed Schedule.
The originally approved Schedule will be the Baseline Schedule. The Commissioner, in his sole discretion, may approve or disapprove the proposed change in the Schedule to the extent that the change does not extend the Contract Time. He will provide a decision in writing to you within 10 days of receipt of your submission. All monthly updates must be plotted against the current revision of the Baseline Schedule.
If the Commissioner approves the change to the CPM Schedule you must submit a revised Schedule incorporating the change(s) within 10 days after approval along with a written description of the change(s) to the Schedule.
Any proposed change that would result in an extension of Contract Time requires a written modification of the Contract pursuant to Section XIII.B, "Modifications," of the Contract.
Updating. The originally approved CPM will be designated as the Baseline Schedule and will only be changed based on a Contract Modification that extends the Contract duration.
City Funded XII. Meetings
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 2017)
All updates will be plotted against the Baseline Schedule. You must update the CPM Schedule on a monthly basis coincident with the submission of the pay estimate. The updated information must include the Baseline Schedule detail and the following additional information for each activity:
Actual start dates;
Actual finish dates;
Actual activity percent complete;
Remaining duration of activities in progress; and
Critical activities must be identified or highlighted.
The updated information must include the Baseline Schedule detail and the following additional information for each summary item:
Actual monthly and total-to-date Work percentage complete.
Actual monthly partial payments, including Subcontractor partial payments; and
Actual weekly and total-to-date manpower utilization.
The City may withhold partial payments if you do not submit updates as required.
Neither an update nor Schedule change may, in itself, extend the term of this Contract. The term of the Contract may only be extended by a written Contract Modification executed pursuant to Section XXIII.B, "Modifications," ofthe Contract.
Narrative Report. As part of the CPM Schedule update, you must prepare a written narrative report, highlighting the progress during the past update period. This written report must include the following information:
Summary of Work accomplished during the past update period;
Contract milestone comparison chart;
Analysis of critical path(s);
Analysis of time lost/gained during the update period;
Identification of problem areas; and
Recommended solutions to current problems.
You are .required to attend a monthly CPM Schedule review meeting where the Schedule will be reviewed with the Commissioner. The purpose of this meeting is to review past progress, current status, problem areas and future progress. Your narrative report is reviewed at this meeting. Your representatives attending this meeting must have the authority to commit manpower and/or other resources to correct any negative impact to the Schedule. Any possible means of shortening the Schedule at no additional cost will be brought to the attention of the Commissioner. The Updated Progress Schedule will be used as a guide for verifying estimates of work completed for which payment is requested, and must accurately represent the project's current status. None ofthe information provided in this Section constitutes a request for a time extension.
City Funded XII. Meetings
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
Recovery Schedule
You. must maintain an adequate work force and the necessary materials, supplies and equipment to meet the current approved Schedule. If you, in the sole opinion of the Commissioner, are failing to meet the approved Schedule, including any Contract milestones, you must submit a recovery Schedule (the "CPM Recovery Schedule"). The CPM Recovery Schedule sets forth a plan to eliminate the schedule slippage (negative float). The plan must be specific and show the methods to achieve the recovery of time, e.g., increasing manpower, working overtime, weekend work, employing multiple shifts. You must bear all costs associated with implementing the CPM Recovery Schedule.
Upon receipt of the CPM Recovery Schedule, the Commissioner will review it for conformance with the Contract and degree of detail. The Commissioner, within 14 days after receipt of the CPM Recovery Schedule and supporting documents will approve it or reject it with written comments. If the detailed CPM Recovery Schedule is rejected, you must submit a revised CPM Recovery Schedule within seven calendar days after the date of rejection. The Commissioner's decision to reject the CPM Recovery Schedule is final and you may not dispute it.
If you refuse to follow the direction of the Commissioner, the Commissioner reserves the right after seven days written notice to you, to procure the materials, equipment and labor to proceed with or to complete the Work or any portion of it and charge the cost to you. The Commissioner's rights under this provision are cumulative to rights under any other provisions of the Contract including the City's rights to terminate for default or to early termination.
Time for Completing Punch List
TIME IS OF THE ESSENCE IN CLOSING OUT THE WORK, and you must begin work immediately after receipt of a list of minor miscellaneous or finishing work known as "Punch List Work." Your failure or that of your Subcontractors to begin the Punch List work within three days of receipt of the Punch List is an event of default.
You must diligently prosecute the Punch List work once begun and complete it within 30 days from receipt of the Punch List. If you fail to complete Punch List work within the 30 day time period, you must pay the liquidated damages set forth in the DB Agreement.
If liquidated damages are assessed, they will be added to the previously determined liquidated damages assessed as of the Substantial Completion Date or the City's beneficial occupancy of the Project, whichever occurs earlier. The City's takeover of the Project under Section XX.C.3.b., however, does not constitute beneficial occupancy for purposes of liquidated damages.
No Damages for Delay; Extensions of Time
1. Should you be delayed in starting, prosecuting or completing the Work by any act of the City, including a delay, change, addition, deletion or modification in the Work or any omission, neglect or default of the City, or by order of the City, or anyone employed by or acting on behalf of the City, or by any cause beyond your control, none of which are due to any fault, neglect, act or omission on your part, then your relief is limited to an extension of the Contract Time that is no greater than the duration of any such delay. The extension of time releases and discharges the City, its employees, officials, agents
City Funded XII. Meetings
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
and representatives from all claims for damages of whatever character, including any claims you may make on account of disruption, changes in sequence, interference, inefficiency, direct or indirect cost or any other causes of delay.
You must notify the Commissioner in writing of the cause within five calendar days after the delay begins. Consideration of a time extension for events beyond your reasonable control will be made if the delay directly impacts the Schedule for completion of the Work. Events considered to be beyond your reasonable control are limited to acts of God, acts of the public enemy, fires, floods, earthquakes, epidemics, quarantine restrictions, labor strikes at the job site, freight embargoes, or weather significantly more severe than the norm, but only if the listed causes were not foreseeable and did not result from your fault or negligence and only if you took reasonable precautions to prevent delays owing to such causes.
Unless otherwise provided in the Contract, the Contract Time is based on normal weather conditions. An extension is granted for weather significantly more severe than the norm only if you demonstrate to the satisfaction of the City that any delay in the progress of the Work was due to' such weather. The basis used to define normal weather will be the "normal" data as compiled by the United States Department of Commerce, National Oceanic and Atmospheric Administration in their most current report entitled "Local Climatological Data, Annual Summary with Comparative Data" for the month for which the time extension is sought. The effects of weather less severe than the norm may be taken into account in considering your requests for time extensions for the effects of more severe weather.
No extension of time will be granted under this Section for any delay if you, by your action or inaction, including your fault or negligence or that of your Subcontractors, caused the delay, or for which any remedies are provided under any other provision of the Contract.
The grant of an extension of time pursuant to this Section XI.G, "No Damages for Delay and Extension of Time," in no way constitutes a waiver by the City of any rights or remedies existing under this Contract, at law or in equity.
You must submit in writing any claim for extension of time to the Commissioner not more than five days after the delay begins, otherwise the claim is waived. Any claim for extension of time must (i) state the cause of the delay; (ii) specifically demonstrate the impact of the delay on the Schedule; and (iii) state the number of extension days requested. If the cause of the delay is continuing, only one claim is necessary, but you must report, in writing, the cessation of the cause for the delay within 10 days after the termination. Any claim for extension of time that does not comply with this provision constitutes a waiver by you of your rights to any such extension.
After receipt of a timely and properly completed request for a time extension, the City may (i) grant a time extension for the entire length of the delay; (ii) grant a time extension for a portion of the extent of the delay; or (iii) deny the time extension.
If you do not agree with the City's decision on,a claim for time extension, you may appeal the ruling to the Chief Procurement Officer under Article XIX, "Claims and Disputes," but only if you have complied with'the notice requirements provided in these
City Funded XII Meetings
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(lU'viscil .luiif 2017}
Terms and Conditions for Construction and the time extension request exceeds five calendar days or the liquidated damages exceed $10,000. The Commissioner's decision is final whenever the time extension request is for a duration of less than five days or the liquidated damages are less than $10,000.
H. Suspension of Work
The Commissioner has authority to suspend the Work wholly, or in part, for such period of time as the Commissioner may deem necessary due to conditions unfavorable for the satisfactory prosecution of the work, or to conditions that, in the Commissioner's opinion, warrant the action or for such time as is necessary by reason of failure on your part to carry out orders given or to perform any or all provisions of the Contract. No additional compensation will be paid to you because of any costs caused by the suspension when the suspension is ordered for reasons resulting from any action or omission on your part or is related to utility adjustments, railroad work, work by other contractors on or near the Work covered by the Contract, or unforeseeable weather conditions.
I. Liquidated Damages
If the Work is delayed, you are liable for liquidated damages for every day you fail to achieve the Contract Completion Date (or any milestone completion date that provides for liquidated damages), but only if the delay is not the result of an excusable cause permitted under Section XI.G.2, "No Damages for Delay and Extensions of Time." The specific amount of liquidated damages for which you are liable is set forth in the DB Agreement.
The City will recover liquidated damages by deducting the amount thereof out of any moneys due or that may become due you: If the moneys are insufficient to cover the damages, then you or your surety must pay the amount due.
If the City permits you to continue to perform Work despite your failure to meet any milestone date set forth in the Contract, the action in no way constitutes a waiver by the City of any rights or remedies that exist under this Contract, at law, or in equity.
XII. MEETINGS
Pre-Construction Meeting
Before beginning Work, the Commissioner may conduct a Pre-Construction meeting. Your representatives and Subcontractors must attend. The purpose ofthe meeting is to establish lines of authority and communication and the identification of duties and responsibilities of the organizations. Discussion will cover specific contract plans, specifications, unusual conditions, schedules of completion, and other features of the Contract. The Commissioner may conduct additional coordination meetings at his discretion.
Weekly Review Meetings
The Commissioner may conduct weekly review meetings. At a minimum, your project manager and superintendent must attend. However, you must arrange for Subcontractors to attend the meetings if expressly requested by the Commissioner. The meetings may include the following:
City Funded XII Meetings
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 20! 7)
Review of Work progress since the previous weekly review meeting;
Discussion of field observations, problems and decisions;
Review of off-site fabrication problems and other problems affecting in the Contract Time;
Review of equipment deliveries;
Discussion of corrective measures and procedures to achieve the CPM Schedule;
Review of submittal schedules and effect on the CPM Schedule;
Review of proposed Contract changes and effect on the construction schedule;
Coordination requirements;
Clarifications and decisions required of the Commissioner;
Review of your forces on the Work; and
Review of Project Record Document status and content.
C. Monthly Review Meetings
The Commissioner may conduct monthly review meetings. At a minimum, your project manager and superintendent must attend. However, you must arrange for Subcontractors to attend the meetings if expressly requested by the Commissioner. The meetings may include the following:
Review of Work progress since the previous monthly review meeting;
Discussion of field observations, problems and decisions;
Review of off-site fabrication problems and other problems affecting the CPM Schedule;
Review of equipment deliveries;
Discussion of corrective measures and procedures to achieve completion in the Contract Time;
Review of submittal schedules and effect on the CPM Schedule;
Review of proposed Contract changes and effect on the Schedule;
Coordination requirements;
Clarifications and decisions required of the Commissioner;
Review of your forces on the Work; and
Review of Project Record Document status and content.
XIII. PAYMENTS A. Contract Price
The "Contract Price" is the total dollar amount of your bid accepted by the City, including approved change orders. It includes all labor, equipment, materials, permits, licenses, fees, and taxes necessary to perform the Work. In the case of a lump sum Contract Price or lump
City Funded XII. Meetings 43
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
sum line item, you must provide the Commissioner with a breakdown that includes a schedule of costs for the various parts of the Work included in the lump sum. The total of these costs must equal the lump sum Contract Price or lump sum line items, as applicable.
The breakdown must be submitted in such form and detail, and supported as to correctness by such data, as the Commissioner may direct. The City will make no payment to you until you have submitted the breakdown and the Schedule required by Article XI, "Schedule," and the Commissioner has approved them. The breakdown may be used for verifying monthly progress payments upon substantiation ofthe costs detailed and the progress ofthe Work.
For unit price line items, measurement and payment is as specified in the Detailed Specifications.
B. Procedure for Monthly Payment Requests and Final Payment
You and the City will agree upon a payment schedule of at least once per month, or more frequently if appropriate or if specified elsewhere in the Contract. The Commissioner will process payment requests pursuant to that agreement if your payment requests, in the Commissioner's sole judgment, are acceptable in form and content, and if the Work for which payment is being requested has been completed according to the terms and conditions of this Contract. All payment requests are subject to correction by the Commissioner.
In cases where you proceed to perform and complete the Work properly under the Contract, progress payments will be processed on a monthly basis unless the amount earned is greater than $1,000,000, then payments may be made twice a month. The payment period ends on the monthly anniversary date ofthe Notice to Proceed.
Each monthly payment request must include one original and two copies of the following:
Certified Statement. You must submit certified statement(s) (signed by an authorized individual and notarized) for each payment request; the statement, in the form acceptable to the Commissioner, must list the following for you and for each Subcontractor and supplier for the period for which payment is requested:
the name and business address of the particular Subcontractor or supplier;
description of the work performed and/or product supplied;
indication of whether the Subcontractor or supplier is an MBE, WBE, or a non-certified firm.
the total amount of the particular subcontract;
the amount previously paid to the Subcontractor and the dates paid;
the amount of the monthly pay request you will pay to each individual Subcontractor and/or supplier from payments you receive on the request, and the dates those amounts were invoiced or requested by the Subcontractor or supplier;
the balance remaining under the subcontract to complete the Work.
Partial Waivers of Lien to Date and Affidavit for Payment. Following your first payment request, you must submit Partial Waivers of Lien from all Subcontractors
City Funded XIII. Payments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Reused lune 2017)
and suppliers that performed services and provided supplies during the month before your previous payment request. The Partial Waivers of Lien must be in a form acceptable to the City and must identify, at a minimum, the payment request number and time period covered. The Partial Wavier of Lien must be in dollar amount equal to the dollar amount of the services performed or supplies provided by the Subcontractor or supplier during the relevant time period. With every payment request, you must also submit an Affidavit for Payment from all Subcontractors and suppliers for whose services or supplies you. request payment. The Affidavit for payment must be in a form acceptable to the Commissioner and identify, at a minimum, the payment estimate number, the time period covered, and the total amount invoiced by the Subcontractor or supplier, and the total amount paid to the Subcontractor or supplier to date.
Status Report of MBE/WBE Subcontract Payments. A status report of MBE/WBE Subcontractor payments, as required by the Contract documents, must be submitted with each monthly invoice in the form required by the City; and
Certified Payrolls. You and all Subcontractors working on the job site must submit three copies of certified payrolls for the payment period to the Commissioner every week until all Work is completed. All payrolls must be identified with Contractor or Subcontractor's name, as appropriate, Contract name and be sequentially numbered. If there are periods of no Work by you or a Subcontractor, you must submit a payroll labeled "NO WORK." The final payroll must be clearly labeled "FINAL". Certified payrolls are required to assure EEO compliance as well as wage compliance. Race, worker classification, and gender must be clearly marked for each employee on the certified payroll along with all additional information required by the Chief Procurement Officer. An employee's address should appear every time his or her name appears on the payroll. You must submit the certified payrolls and additional information regarding EEO and wage compliance by providing a Payroll Summary Report in the form required by the Chief Procurement Officer. You and each Subcontractor must submit the EEO report forms required by the City and U.S. Department of Labor reflecting fully the periods of Work covered by the partial payment request. When directed, contractor shall be required to submit payrolls electronically using the City certified payroll reporting system.
You must declare subcontractor payments with each invoice submitted to the City. You are required also to inform subcontractor each time you submit an invoice to the City that includes work for which you have been billed by the subcontractor. The Subcontractor Payment Certification Form can be downloaded from the City's website at www.cityofchicago.org/finance/subcontractorform . The information from this form will be recorded in the City's financial system and posted on the City website.
C. Payment for Stored Material
Whether stored on- or off-the job site, the risk of loss for stored material will remain with you, and you must insure the stored materials against the risk of loss, theft or damage until its installment in the Work.
Payment for material stored on the job site will be 100% of a valid invoice. No payment will be made for materials stored off the job site unless otherwise authorized by the
City Funded XIII. Payments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 2UI7)
Commissioner in accordance with Section XIII.C.3. If Materials stored on the job site cannot be incorporated in the finished Work within a reasonable period of time you may include them in the monthly progress payment, but only if the following documents are submitted with the request for payment:
Paid invoices showing the cost of material or equipment;
Waiver of lien from the'supplier indicating that the cost of the material or equipment was paid; and
Inspection tickets showing that material or equipment had been inspected and accepted by the City.
3. Payment for material stored off-site, if authorized, will be 100% of a valid invoice when you have provided the Commissioner with the documents and assurances listed and complied with the requirements below:
A paid invoice from the supplier showing the unit, quantity, description of the material or equipment and costs;
A waiver of lien from the supplier for the total amount of the material purchased;
Inspection for all of the material stored;
A certified statement giving the exact location of the materials or equipment, stating that:
you have inspected all of the material stored and that it is complete and in good condition;
the materials are suitably stored and maintained at a bonded, secure and environmentally appropriate location that the Commissioner has agreed upon and subject to the conditions required or established by him;
you have complied with procedures satisfactory to the Commissioner to establish the City's title to the materials or otherwise protect the City's interest in them, including, insurance, storage and transportation to the Project site for the materials stored off-site, as the Commissioner may reasonably require;
the materials, equipment and associated fabricated components will not be diverted away from the Project;
a certificate of insurance coverage for the stored material upon which payment is requested;
Immediately upon receipt of payment for the material, you must prepare and execute all documents required to transfer title to the City, including, any Uniform Commercial Code documentation necessary to perfect transfer of title; and
All material and Work covered by payments will thereupon become the sole property of the City, subject to your obligation to insure it until Acceptance of the Work.
D. Retainage
]. Pursuant to § 2-92-250 ofthe Municipal Code, no retainage shall be withheld by the City. As a matter of prompt payment to subcontractors as required by Section
City Funded XIII. Payments 46
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Kcvtscil lime 2017)
XIII.E, Contractor must not withhold retainaue from subcontractors in anv form, including but
not limited to administrative fees.
E. Prompt Payment to Subcontractors
Payment Within Seven Days. The Contractor must make payment to its Subcontractors within 7 days of receipt of payment from the City for each invoice, but only if the Subcontractor has satisfactorily provided goods or services or completed its work or services in accordance with the Contract Documents and provided the Contractor with all of the documents and information required of the Contractor. The Contractor may delay or postpone payment for a to a Subcontractor when the Subcontractor's work or materials do not comply with the requirements of the Contract Documents, the Contractor is acting in good faith, and not in retaliation for a Subcontractor exercising legal or contractual rights.
Liquidated Damages for Failure to Promptly Pay. Much of the City's economic vitality derives from the success of its small businesses. The failure by contractors to pay their subcontractors in a timely manner, therefore, is clearly detrimental to the City. Inasmuch as the actual damages to the City due to such failure are uncertain in amount and difficult to prove, Contractor and City agree that the Commissioner may assess liquidated damages against contractors who fail to meet their prompt payment requirements. Such liquidated damages shall be assessed to compensate the City for any and all damage incurred due to the failure of the Contractor to promptly pay its subcontractors, and does not constitute a penalty. Any and all such liquidated damages collected by the City shall be used to improve the administration and outreach efforts ofthe City's Small Business Program.
Reporting Failures to Promptly Pay. The City posts payments to prime contractors on the web at
nts/begin.do?agencyld=city.
If the Contractor, without reasonable cause, fails to make any payment to its Subcontractors and material suppliers within 7 days after receipt of payment under a City contract, the Contractor shall pay to its Subcontractors and material suppliers, in addition to the payment due them, interest in the amount of 2% per month, calculated from the expiration ofthe 7-day period until fully Raid.
In the event that a Contractor fails to make payment to a Subcontractor within the 7-day period required above, the Subcontractor may notify the City by submitting a report form that may be downloaded from the DPS website at: dardFormsAgreements/Failure to Promtly Pay Fillable Form 3 2013.pdf
The report will require the Subcontractor to affirm that (a) its invoice to the Contractor was included in the payment request submitted by the contractor to the City and (b) Subcontractor has not, at the time of the report, received payment from the contractor for that invoice. The report must reference the payment (voucher) number posted on-line by the City in the notice of the payment to the contractor.
City Funded XIII. Payments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Rcvisal luiii: 201 7)
Subcontractors are hereby reminded that per Chapters 1-21, "False Statements," and 1-22, "False Claims," ofthe Municipal Code of Chicago, making false statements or claims to the City are violations of law and subject to a range of penalties including fines and debarment.
4. Action by the City. Upon receipt of an electronic report of a failure to pay, the City will issue notice to the contractor, and provide the contractor with an opportunity to demonstrate reasonable cause for failing to make payment within applicable period set forth in the Contract. The Commissioner, in his or her sole judgment, shall determine whether any cause for nonpayment provided by a contractor is reasonable. In the event that the contractor fails to demonstrate reasonable cause for failure to make payment, the City shall notify the contractor that it will assess liquidated damages. Any such liquidated damages will be assessed according to the following schedule:
First Unexcused Report: $50
Second Unexcused Report: $100
Third Unexcused Report: $250
Fourth Unexcused Report: $500
Fifth and Each Succeeding
Unexcused Report: $1,000
The liquidated damages set forth above shall be assessed per unexcused report per contract, i.e., each successive report regarding a contractor's failure to pay under this Contract will be assessed liquidated damages, regardless of which subcontractor files the unexcused report(s).
By executing this Agreement, Contractor acknowledges and agrees that the City may collect such damages by deducting any amount due to the City from the next payment to be made to the Contractor. In the event that no further payments are due to Contractor, Contractor agrees to promptly pay such liquidated damages as it may owe to the City. Failure to make such payment within thirty (30) days of receipt of notice ofthe assessment of liquidated damages may result in Contractor being debarred from participating in City contracts for a period of not less than one year.
Contractors are reminded that each unexcused failure to pay promptly is an event of default under the Contract and, in addition to the liquidated damages provided for in this Section, is subject to the remedies found in Section XX.C of this Contract. Contractors are further reminded that per Section 2-92-270 ofthe Municipal Code of Chicago, failure to pay subcontractors as required by law and the Contract may result in the City suspending payments to Contractor and making direct payments to such subcontractors. Any such direct payments shall be from funds due and owing to the contractor.
5. Whistleblower Protection. Contractor shall not take any retaliatory action against any subcontractor for reporting non-payment pursuant to this Section E. Any such retaliatory action is an event of default under this Contract and is subject to the remedies set forth in Section XX.C hereof, including termination In addition to those remedies, any retaliatory action by a contractor may result in a contractor being deemed non-responsible for future
City Funded XIII Payments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
City contracts or, if, in the sole judgment ofthe Commissioner, such retaliatory action is egregious, the Commissioner may initiate debarment proceedings against the contractor. Any such debarment shall be for a period of not less than one year.
6. If the Commissioner determines that the circumstances pertaining to a contractor's failure to pay promptly warrant excusing such non-performance, or determines that excusing such non-performance is in the best interests of the City, the Commissioner may waive any of the remedies provided in this Section E. Each such waiver is discrete, non-precedential and does not constitute a waiver of any subsequent remedies against a contractor who fails to comply with the terms and conditions set forth herein.
F. Payments Withheld
The Commissioner may decline a request for payment if, in the Commissioner's sole opinion, the request for payment is not adequately supported. If you and the Commissioner cannot agree on a revised amount, the Commissioner must process the payment in the amount he deems appropriate.
The Commissioner may decline to process any payment or may rescind in whole or in part any approval previously made to the extent that may be necessary in his sole opinion because of any failure to perform any obligation under the Contract, including:
Failure or refusal to provide the City the required initial schedule for the Work or monthly schedule updates and obtain the City's approval for either or both;
Your failure to remedy defective Work;
Your failure to make payments to Subcontractors, or employees, or provide partial waivers of lien;
Your failure to maintain timely progress of the Work as stated in your schedule, or the City's determination that the Work will not be completed within the Contract Time, or your failure to carry out the Work in accordance with the Contract;
Failure to follow the City, State, Federal, or Contract safety and security requirements;
Failure to maintain insurance policies as required by the Contract and/or to provide to the Commissioner each evidence of insurance coverage, in the form of current certificates of insurance, as he or she.may require;
g: • Failure to comply with-other requirements as referenced in the Contract;
h. Failure to provide certified payrolls or other documents required under Section XI.G,
"No Damages for Delay and Extensions of Time."
i. Failure to provide material inspections as required by the Contract; and
j. Failure to provide contract deliverables such as, accurate Record Drawings, warranties, guarantees, manuals, etc.
Pursuant to § 2-92-270 of the Municipal Code, the Chief Procurement Officer may, in his sole discretion, direct that no further payments be made, or vouchers or estimates issued to you, if he determines that you have failed to pay any Subcontractor, employee or worker for Work performed under this Contract. Failure to submit "Status Report of MBEAA/BE Subcontract Payment" or "Certified Statement" as required under Section
City Funded XIII Payments 49
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
Xlil.B. may result in a determination that you have failed to pay your Subcontractor(s). The City may withhold payment until you demonstrate, to the satisfaction of the Chief Procurement Officer, that payments to the Subcontractors, employees or workers have been made in full.
If the Chief Procurement Officer gives you notice under Section XXIII.H that no further vouchers or estimates will be issued or payments made on the Contract until the Subcontractors, workers, and employees have been paid, and you neglect or refuse for a period of 10 days or more after notice was given to pay those Subcontractors, workers or employees, the Chief Procurement Officer may apply any money due, or that may become due, under the Contract to the payment of those Subcontractors, workers or employees without further notice to you and the effect will be the same, for purposes of payment to you of the Contract Price, as if the City had paid you directly.
The failure of the City, however, to retain and apply any money, or of the Chief Procurement Officer to order or direct that no vouchers or estimates be issued or further payments made, will not, nor will the paying over of the reserved percentage without the Subcontractor, workers, or employees being first paid, in any way affect your liability or that of your sureties to the City, or to any such Subcontractor, worker or employee upon any bond given in connection with this Contract.
Debts; Outstanding Parking Violation Complaints
In accordance with § 2-92-380 of the Municipal Code, and as otherwise permitted by law, in addition to any other rights and remedies (including any set-off) available to the City under the Contract or permitted at law or in equity, the City is entitled to set off a portion of the Contract price or compensation due under the Contract, in an amount equal to the amount of the fines and penalties for each outstanding parking violation complaint and the amount of any debt owed by the contracting party to the City. For purposes of this provision, the terms "outstanding parking violation complaints" and "debt" are defined in the Municipal Code as are the conditions under which no set-off will be made.
Provisions Relating to Liens
Contractor will notify Subcontractors that no mechanic's lien under the Illinois Mechanics' Lien Act, 770 ILCS 60/23, et seq., will be permitted to arise, be filed, or maintained against public funds, the Project, or any part of it, or any interest in them, or any improvements on them, or against any monies due or to become due to Contractor on account of any work, labor, services, materials, equipment, or other items performed or furnished for or in connection with the Project to the extent permitted by law. Contractor, for itself and its Subcontractors, expressly waives, releases, and relinquishes such liens and all rights to file or maintain such liens; and Contractor further covenants that this waiver of liens and waiver of the rights to file or maintain such liens is an independent covenant.
If any of Subcontractors, employees, officials, agents, or any other person directly or indirectly acting for, through, or on their behalf files or maintains a lien or claim under the Illinois Mechanic's Lien Act, 770 ILCS 60/23, et seq., against public funds or against any monies due or to become due to Contractor on account of any Work, labor, services, materials, equipment, or other items performed or furnished for or in connection with the
City Funded XIII. Payments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 2017)
Project, Contractor must cause such liens and claims to be satisfied, removed, or discharged within 30 days from the date of filing. The City may extend the 30 day period if (i) the City determines that the lien claim cannot be so satisfied, removed, or discharged in such period and (ii) Contractor, in the City's sole determination, is proceeding diligently to cause such liens or claims to be satisfied, removed or discharged. The City has the right, in addition to all other rights and remedies provided under this Contract or by law, to cause such liens or claims to be satisfied, removed, or discharged by any means at Contractor's sole cost, such cost to include reasonable legal fees.
6. The City's rights under this Section XIII.F, "Payments Withheld," are cumulative with any other rights provided for under this Contract. Failure by the City to exercise any such right afforded in this Contract, or at law or in equity, will not constitute a waiver of that right.
G. Payment for Changes
1. Payment for Changes. The amount to be paid by the City for changes (additions, deletions or revisions) in the Work or directions to change the Contract Time, will be made in accordance with Sections XIII.G.I.a through XIII.G.I.f below.
a. Unit Price Basis. Should the changes in the plans result in an increase or decrease in the quantities of unit priced Work to be performed, you will accept payment as follows:
All increases in the Work of the type that appears in the Contract as unit price items will, except as provided in Section XIII.G.I.b., "Proposal Basis," be paid for at the Contract unit bid prices. Decreases in quantities included in the Contract will be deducted from the Contract value at the unit bid prices. No allowances will be made for delays or anticipated profits.
Quantities in excess of 125% of the bid quantities, when the total dollar value of the unit price item exceeds 5% of the original Contract bid amount, will be paid for at a negotiated unit price based on costs that are demonstrated by you and agreed to by the Commissioner. The negotiated unit price can be higher or lower than the Bid Unit Price. Quantities in excess of 125% of the bid quantities, when the total dollar value on any unit price item does not exceed 5% of the total value of the original Contract bid amount, will be paid at the bid unit price.
Quantities below 75% of the bid quantities, when the total value of the unit price item exceeds 5% of the Contract Price at the time of bid, will be paid for at a negotiated unit price based on costs which are demonstrated by you and agreed to by the Commissioner. The negotiated unit price can be higher or lower than the Bid Unit Price. Quantities below 75% of the bid quantities, when the total value on any unit price item does not exceed 5% of the total value of the Contract Price at the time of bid will be paid at the bid unit price.
If the Commissioner and you are unable to agree on a negotiated unit price, the Commissioner will determine a unit price, prepare a Contract Modification with the Work so priced, that you will sign. You may, however, timely dispute the amount of the unit price to the Chief Procurement Officer under Article XIX, "Claims and Disputes." This is the only Contract Modification in which the
City Funded XIII. Payments 51
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
release language required by Section XIV.D., "Contractor's Release," will not be included.
b. Proposal Basis. If there are no unit prices for the changed Work, the payment may be based upon a price agreed to by the City and you. The proposal submitted will be a starting point for negotiation between the City and you. You must submit any proposal for consideration for changed Work in writing, breaking down the Work to be done into segments of cost as follows:
Labor. For all hourly wage labor and hourly wage foremen in direct charge of the specific operations, you will receive the prevailing rate of wage for every hour that the labor and foremen are actually engaged in the Work. No additional allowance or payment will be made for general superintendence.
You will receive the actual costs paid to, or in behalf of, workers for health and welfare benefits, pension fund benefits or other benefits, when the amounts are required by collective bargaining agreement or other employment contract generally applicable to the classes of labor employed on the Work.
An amount not to exceed 30% of XIII.G.1.b.(1) above and an amount not to exceed 10% of XIII.G.1 .b.(2) above will also be paid to you.
Insurance and Payroll Taxes. Cost for property damage, liability, and worker's compensation insurance premiums, unemployment insurance contributions and social security taxes on the extra Work, to which an amount not to exceed 10% of the cost of these items will be added. You must furnish satisfactory evidence of the rates paid for the insurance and taxes.
Materials. For materials accepted by the Commissioner and used as an integral part of finished Work, you will receive the actual costs of the materials delivered on the job site, including transportation charges that you paid (exclusive of machinery rentals as set forth below), as shown by original receipted bills, to which 15% will be added to the first $10,000.00 and 10% for any amounts over $10,000.00.
Equipment. Number of proposed equipment hours multiplied by the rate as allowed by the latest revision of "Schedule of Average Equipment Ownership Expense With Operating Cost" as issued by IDOT, or in the AED Compilation of Rental Rates if equipment is to be rented, for the period that the machinery and equipment are to be used on the Work, to which no percent will be added. Where machinery and equipment are not listed in these schedules, then the rates will be determined by the Commissioner after reviewing all of your available records or other information concerning the expense of operating that type of equipment.
Cost for Increase in Performance and Payment Bond. You will furnish the Commissioner written documentation from the surety of the rate or rates applicable for additional bonding for this Contract. These rates will be applied to all the changes increasing or decreasing the Contract Price. No bonding costs will be allowed for Subcontractors. In the absence of written documentation from the surety, a percentage of the total change, as determined by the
City Funded XIII. Payments
Exh'ibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
Commissioner, will be added or subtracted to cover the increase or decrease of the cost of the bond.
(8) When Work is to be performed by a Subcontractor, the proposal may include as administrative costs for you an amount not to exceed 5% of the first $10,000.00 and 1% of any amount over $10,000.00 of the total approved costs of the Work. The Subcontractor, however, is not allowed any additional markup if it sublets its Work. The use of a Subcontractor requires the approval of the Commissioner. All subcontracted costs must be supported by proposals from the Subcontractors performing the Work. The Subcontractor's proposal must be broken down into its various parts of Work as described in items XIII.G.1.b.(1) through XIII.G.1.b.(8) above, or as required by the Commissioner.
c. Time and Material Basis. If the Commissioner and you cannot agree on a price based on a proposal, the Work will be paid for on a time and material basis. Work that is done on a time and material basis will be paid for as follows:.
Labor. For all hourly wage labor and hourly wage foremen in direct charge of the specific operations, you will receive the prevailing rate of wage for every hour that the labor and foremen are actually engaged in the Work. No additional allowance or payment will be made for general superintendence.
You will receive the actual costs paid to, or in behalf of, workers for health and welfare benefits, pension fund benefits or other benefits, when the amounts are required by collective bargaining agreement or other employment contract generally applicable to the classes of labor employed on the Work.
An amount not to exceed 30% of XIII.G.1.c.(1) above and an amount not to exceed 10% of XIII.G.1 .c.(2) above will also be paid to you.
No payment will be made for labor performed on a time and material basis until you have furnished the Commissioner with itemized statements of the labor cost as follows.
Name, classification, date, daily hours, total hours, rate, and extension for each laborer and foreman.
Certified payrolls or certified copies of them, pertinent to the Work for which payment is requested. The payroll records will contain the name, address and social security number of .each employee, the employees correct classification, rate of pay, daily and weekly number of hours worked, itemized deductions made and actual wages paid. The time and material bills will be
'audited and corrected against the certified payrolls. Falsification of the certified payroll is an offense punishable by law.
Insurance and Payroll Tax. For property damage, liability, and workers compensation insurance premiums, unemployment insurance contributions and social security taxes on the time and material Work, you will receive the actual costs, to which 10% will be added., No payment will be made for insurance and payroll taxes until you have furnished satisfactory evidence of the rate or rates paid for the insurance and tax.
City Funded XIII. Payments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Rmseil .'ink- 20 J 7)
Materials. For materials accepted by the Commissioner and used as an integral part of finished Work, you will receive the actual costs of the materials delivered on the job site, including transportation charges paid by him (exclusive of machinery rentals as set forth below), as shown by original receipted bills, to which 15% will be added to the first $10,000.00 and 10% for any amounts over $10,000.00.
You will be reimbursed for any materials used in the construction of the Work, such as sheeting, falsework, form lumber, burlap, or other materials for curing, etc., that are not integral part of the finished Work. The amount of reimbursement will be agreed upon in writing before the Work is begun and no percent will be added. The salvage value of the materials will be taken into consideration in the reimbursement agreed upon.
No payment will be made for material cost until you have furnished itemized statements ofthe material costs, which must include:
Quantities of materials, prices, and extension;
Material transportation costs supported by receipted invoices; and
Receipted invoices for all materials used. However, if materials used on the time and material Work are not specifically purchased for the Work but are taken from your stock, then in lieu of the invoices, you will furnish an affidavit certifying that the materials were from your stock, that the quantity claimed was actually used, and that the price and transportation claimed represent the actual cost to you. The price quoted for the material must be reasonable and acceptable as per the normal industry practice.
Equipment. You will be paid for all machinery and equipment (other than small tools as currently defined by the Illinois Department of Transportation) used on the Work, in accordance with the latest revision of "Schedule of Average Annual Equipment Ownership Expense with Operating Cost," as issued by the Illinois Department of Transportation, for the period that the machinery and equipment are in use on the Work, to which no percent will be added. Where machinery and equipment are not listed in this schedule, the rates will be determined by the Commissioner after reviewing all your available records or other information concerning the expense of operating that type of equipment. Where idle time for equipment is authorized by the Commissioner, it will be paid at a rate not to exceed 50% of the rates described above.
When equipment is rented, you will receive actual rental cost as shown by original receipted bills to which 5% will be added.
No payment will be made for equipment unless designations, dates, daily hours, rental rates, and extensions for each unit of machinery and equipment are shown on the itemized statement of time and material Work.
Bond. The City will pay you the actual increase in cost of your performance bond. You will furnish from the bonding company written documentation of the rate or rates applicable for additional bonding for this Contract. These rate/rates will be applied to all the changes increasing or
City Funded XIII. Payments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 20I7)
decreasing the Contract value. No bonding costs will be allowed for Subcontractors. In the absence of written documentation from the bonding company, a percentage of the total change, as determined by the Commissioner, will be added or subtracted to cover the increase or decrease of the cost of the bond.
When Work is performed by Subcontractor, you will receive as administrative costs an amount equal to 10% of the first $10,000 and 5% of any amount over $10,000 of the total approved costs of the Work. The Subcontractor, however, is not allowed any additional markup if it sublets its Work. The use of a Subcontractor will require the approval of the Commissioner. All subcontracted costs must be supported by invoices from the Subcontractors performing the Work. The Subcontractors' invoices must be submitted in the form described in items (1) through (4) above.
Documentation. For additional Work performed on a time and material basis you will each day submit to the Commissioner detailed and complete records of the labor, material, equipment, and other costs relating to any force account Work performed on the day the Work is performed. You and the Commissioner will sign these daily extra Work reports.
Base Contract Work on a Premium Time Basis.
For Contract Work performed outside of regularly schedule working hours as defined by the Contract, premium time costs will be paid, only if expressly directed in writing by the Commissioner before you begin the Work. Compensation, when authorized, will cover only the direct cost of the premium portion of the time involved and will be without any charge for insurance. No payment will be made for union fringe benefits on the premium portion of the time unless expressly required by union agreement. Taxes that are attributed to the premium portion of the time will be paid. If you seek to charge taxes, the Commissioner may require you to supply verification that the employees' Social Security Tax, Federal Unemployment Tax, and State Unemployment Tax limits have not been exceeded.
An amount equal to 7% of the sum of the premium portion of the work plus taxes will also be paid to you to cover job site general conditions, overhead, and profit. All indirect costs are considered part of the overhead, including supervision, engineering, and other technical personnel.
If you enter into a subcontract, you will be allowed an additional 2% of the Subcontractor's premium time billing to cover your supervisory and related expense on subcontract operations. The Subcontractor is not allowed the additional 2% if it sublets its Work.
You must keep Daily Work Reports for the premium time hours signed by you and the Commissioner. The reports must indicate the time of day when the Work was performed and wage rate differential that will be charged. Billings
¦ must reflect hours reported on Daily Work Reports.
d. Changes on Lump Sum Contracts or Lump Sum Items in Unit Priced
Contracts. All increases or decreases in the Work that is listed in the approved
City Funded XIII. Payments 55
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
schedule of values will be priced, for the purpose of any change, based on the amounts stated for the Work in the approved schedule of values.
All invoices for changed work. You must submit all invoices for changed work within 45 days following completion of the changed work. Failure to provide a complete invoice for the changed work within that period, will authorize the Commissioner, to determine the final amount for the Contract Modification that may be awarded without your signature.
Miscellaneous.
For the purposes of this Section, any business entity which employs field labor and performs Contract Work on the job site is defined as a Subcontractor." (This definition excludes suppliers/deliverers of materials.)
When the extra Work involves only supply of material without any field labor at the job site, the supplier, for the purposes of this Section, will be considered a "Materials Subcontractor" and the mark up specified in Section XIII.G.1 c (6), "Materials," will apply.
Expenses incurred by the City. Upon written request of the Commissioner, you will pay the costs related to the Work that are the responsibility of the City. You will be reimbursed for the actual amount paid out to which will be added a markup as specified in Section XIII.G.1 .c above.
2. Change Claims:
If you and Commissioner are unable to agree on the price and/or time extension in connection with a change, you must, within 15 days of completing the changed work, provide written notice to the Commissioner of the amount of money and/or time extension sought by you and the Contractual and factual basis for each. You will designate the document Notice of Claim.
The Commissioner will, within 30 days from receipt of the Notice of Claim, respond by requesting a meeting with you, making a written request for additional information from you, including a general statement of the basis for the claim, the facts
. underlying the claim, the notice to the Commissioner of the change that gave rise to the claim, reference to the applicable Contract provisions, and all documentation that describes, relates to and supports the claim; taking other action to attempt to resolve the Notice of Claim, and/or advising you in writing that it should file a claim under Article XIX, "Claims and Disputes." Any steps taken by the Commissioner to resolve the Notice of Claim will not exceed 60 days from receipt of the Notice of Claim unless you agree to an additional amount of time in writing.
If the Notice of Claim cannot be resolved as provided for in Section XIII.G.2, you must follow the requirements of Sections XIX.B and C, "Claims" and "Disputes."
If you do not agree with the adjustment for time and/or money proposed by the Commissioner, you must follow the procedures set out by the Contract to file a claim and/or dispute as provided in Article XIX, Failure to follow the procedures set out by the Contract to file a claim and/or dispute as provided in Article XIX, constitutes a waiver of the right to make a claim or file a Dispute to the Chief Procurement Officer. In the event of your waiver, you may file a Dispute under Section XX with the Chief
City Funded XIII Payments 56
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
Procurement Officer seeking a final decision as to the adjustment for the changed work.
I I. Night. Sunday and Holiday Work
Whenever you are permitted to perform Work at night, or on Sundays or State or Federal holidays, or to vary the period of hours during which any work is carried on each day, you must give written notice to the Commissioner, at least 24 hours in advance, so that proper inspection may be provided. The Work will be done under regulations to be furnished in writing by the Commissioner, and no extra compensation will be allowed therefore.
I. Acceleration
If progress falls behind the approved schedule, the Commissioner may direct and authorize you, in writing, to perform premium time work as indicated in TIME OF COMPLETION in the Proposal section of the specifications. No additional compensation will be paid for such premium time work and the cost incurred for inspection and testing during the premium time work will be considered as "extra" inspection, and reimbursement will be provided by you as described in Section XV.C, "Materials and Equipment Testing and Inspection."
If conditions are encountered where you are specifically directed and authorized in writing by the Commissioner to perform premium time work, on the original contract, to advance an already established completion date of an event or the project, or project milestone, you will be compensated in accordance with Section XIII.G.c (15).
When the premium time Work is performed by approved subcontractor, you will receive a markup as specified in Section XIII.G.c (15) ofthe Contract.
J. Payroll Canvass Reports
You must submit to the Commissioner with each pay request a Payroll Canvass Reports
(PCR) on Exhibits and , included in DB Agreement. You must submit the PCRs to
indicate compliance with both your "Award Criteria Determination" commitments made for each trade in the DB Agreement and the Chicago Residency Ordinance requirements. A pay period canvass report must be prepared separately by you and each of your Subcontractors on Exhibit B to indicate, on a weekly basis, hours of each trade utilized during each pay period by you and your Subcontractors on the project. A combined Payroll Canvass Summary Report must be prepared by you on Exhibit C to indicate accumulated hours of each trade you and all of your Subcontractors have utilized, to date, on the Project. You are also responsible for the accuracy- of information and all arithmetical calculations made in the Payroll Canvass Reports.
You must submit within five days after the award of the Contract Exhibit A, Anticipated Workforce Projection Form, included in the Contract, to the Commissioner.
K. Electronic Ordering And Invoices
The Contractor will cooperate in good faith with the City in implementing electronic ordering and invoicing, including but not limited to catalogs, purchase orders, releases, and invoices. Contractor will accept electronic purchase orders and releases upon request of the Commissioner. Contractor will provide the City electronic catalogs, copies of invoices and other electronic documents upon request. The electronic ordering and invoice documents will be in a format specified by the City and transmitted by an electronic means specified by
City Funded XIII Payments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
the City. Such electronic means may include, but are not limited to, disks, e-mail, EDI, FTP, web sites, and third party electronic services. The Commissioner reserves the right to change the document format and/or the means of transmission upon written notice to the Contractor. Contractor will ensure that the essential information, as determined by the Commissioner, in the electronic document, corresponds to that information submitted by the Contractor in its paper documents. The electronic documents will be in addition to paper documents required by this Contract, however, by written notice to the Contractor, the Commissioner may deem any or all of the electronic ordering and invoice documents the official documents and/or eliminate the requirement for paper ordering and invoice documents.
XIV. CHANGES IN THE WORK
City's Right to Change Work
The Commissioner reserves the right to order, in writing, changes in the Work or the Contract Time without prior notice to your surety. You are obligated to perform in a timely manner the changed Work included in the written notice from the Commissioner. These changes may consist of additions, deletions, or other revisions, at the discretion of the City. You must begin the changed work upon receipt of a Field Order, signed by the Commissioner, unilaterally directing changes in the Work or Contract Time.
Contractor's Request
Within 14 days of receipt of the written notice from the Commissioner, you must submit to the Commissioner a written request for adjustment to the Contract Price and/or Contract Time for the revised Work.
Contract Modification
The final provisions of the Proposed Contract Modification, including the adjustment in the Contract Sum and/or the Contract time, if any, will be incorporated into a written Contract Modification signed by the City and you.
Contractor's Release
All Contract Modifications constitute a full release of the City from any liability for any additional compensation or extension of time arising or resulting from the Work performed pursuant to the Contract Modification. By executing a Contract Modification, you accept the compensation and/or time extension provided in it in full accord and satisfaction for that Contract Modification, and you expressly waive, release and relinquish all additional claims and demands relating to or arising out of the matters covered by that Contract Modification, including direct or indirect cost, profit, or damages related to disruptions.
Performance of Changed Work
You must promptly proceed with any changes in the Work or Contract Time as directed by a written order of the Commissioner ("Field Order"), in accordance with Section XIV.A., "City's Right to Change Work," with or without any Contract Modification. Your refusal or failure to proceed promptly with the changed Work as directed constitutes an event of default under the Contract. No change to the Work by you as directed by the Commissioner will operate to invalidate the Contract or release your surety.
City Funded XIII Payments
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
Change Claims and Disputes If you and Commissioner are unable to agree on the price and/or time extension in connection with a change, the procedures set forth in Article XIX, "Claims and Disputes," will govern.
XV. TESTING & INSPECTION
Material, Inspection and Responsibility
The City has the right to inspect all materials, equipment and each part or detail of Work, at any time, to be used in carrying out this Contract. The City does not assume any responsibility for the availability of any materials or equipment required under this Contract. You are responsible for all materials, components and completed Work furnished under this Contract. The City may reject materials, components or completed Work not complying with the terms and provisions of this Contract and you must replaced it or them at no additional cost to the City. You must promptly remove any rejected materials or components rejected from the City's premises at no additional cost to the City after you receive notice from the City that the materials or components have been rejected.
Inspection of the Work
All materials and equipment and each part or detail of the Work are subject at all times to inspection by the Commissioner or the Commissioner's authorized representatives. You are held strictly to the requirements of the Contract with respect to quality of materials, workmanship and the diligent execution of the Contract. Inspection may include mill, plant, shop and field inspection of any material or equipment furnished and any installation and construction under the Contract. You must allow the Commissioner and his representatives access to all parts of the Work and furnish such information and assistance as may be required to make a complete and detailed inspection.
All tests performed by or at the direction of the Commissioner under this Contract are to verify that the materials you are providing meet the Contract requirements. You, at your own expense, may perform or have others perform similar tests for the purpose of maintaining the quality of the material being provided. Payment will not be made for uninspected or unauthorized use of materials incorporated into the Work.
You must remove or uncover such portions of the finished Work as the Commissioner may direct before acceptance. After the examination, you must restore the portion of the Work to the standard required by the Contract. If the Work thus exposed or examined proves acceptable, the City will pay the expenses of uncovering, removing and/or replacing the parts as extra work, but if the Work so exposed or examined is unacceptable, you must bear the expense of uncovering, removing and/or replacing of it in accordance with the Contract.
Except as may be otherwise specified in other sections of the Contract, the Commissioner will make final inspection of all Work included in the Contract as soon as possible after you notify him that the Work is substantially completed and ready for acceptance. If the Work is not acceptable to the Commissioner at the time of the
City Funded XIV Changes in the Work
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
inspection, he or she will inform you as to the particular defects to be remedied before the Work is accepted as substantially complete.
C. Materials and Equipment Testing and Inspection
You must provide the Commissioner sufficient notice of placing orders to permit tests to be completed before the materials are incorporated into the Work. You must afford such facilities as the Commissioner may require for collecting and forwarding Samples and making inspections and test. All Samples must be furnished without charge to the Commissioner. You must not make use of or incorporate into the Work the materials represented by the Samples until tests have been made and the materials have been found to be in accordance with the requirements of the Contract.
For materials that are integral parts of machinery or equipment or of parts of equipment that you or your Subcontractor normally stock, you must furnish the original and one copy of certified tests made at the time of production. You will keep the original and the Commissioner will retain the copy.
You must assure that the Commissioner has free entry, at all times while Work is being performed, to all parts of the manufacturer's works that concern the manufacture of the material or equipment ordered. The Commissioner must be permitted to examine all components and subassemblies. Assemblies and parts must be numbered for identification. You must provide the Commissioner with a detailed production schedule before the first inspection. After review of the schedule, the Commissioner will inform you of the methods, extent of inspection, facilities desired and date of inspection. You will afford the Commissioner without charge, all facilities necessary to determine that the material or equipment furnished are in accordance with the Contract. Test and inspection may be at the place of manufacture before shipment.
If for any reason, the City elects not to make the tests, the Commissioner may direct you to make the necessary tests. You must furnish a certification of the ordered tests after completion. The Commissioner reserves the right to inspect and reject all materials or equipment that were previously inspected and accepted at the place of manufacture or source of supply, after they were delivered to the Work site, if the materials or equipment do not meet the requirements of the Contract.
When an inspection trip is terminated due to insufficient materials, unacceptable quality, Contractor labor problems, or Contractor equipment problems, you must pay the City its costs for any additional inspection trip.
6. ' The Contract documents may require you to include the cost of travel and living
expenses for a specific number of City employees and/or other persons for a specific test. The manufacturer or you must furnish a certification of the ordered tests after completion. The Commissioner reserves the right to reinspect and reject all materials or equipment that have been previously inspected and accepted at the place of manufacture or source of supply, after they have been delivered to the site if the materials or equipment do not meet the requirements ofthe Contract.
7. Unless otherwise provided, all materials will be sampled and tested in accordance with
the latest published standards and methods of the American Society for Testing and
Materials (ASTM) and any revisions of them. If there are no ASTM standards that apply,
applicable standard methods of other recognized standardizing agencies will be used.
City Funded XV. Testing and Inspection
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
[Revised June 2017)
You must provide the name and qualifications of any such standardizing agency to the Commissioner for review and approval.
D. Testing Laboratory Labels
You must submit all equipment containing electrical wiring to the City for acceptance before installation. All electrical components that you furnished and installed or assemble under this Contract must be approved and so labeled by one ofthe following Testing Laboratories:
Underwriters'Laboratories (UL)
Canadian Standards Association (CSA)
Electrical Testing Laboratory of New York (ETL)
Illinois Institute of Technology research Institute (IITRI)
American Gas Association (AGA)
Factory Mutual Research Corporation (FMRC)
Maintenance and Electrical Testing (MET)
American Research Lab (ARL)
Any electrical unit comprised of a number of components, assembled at the factory and considered custom made, must bear one of the above labels for the entire unit as well as for each component.
You must pay all costs in obtaining a testing laboratory label at no additional cost to the City. Any delays in completion of the Work caused by the manufacturer of equipment in obtaining the required testing laboratory labels and the City approval are not grounds for an extension of time beyond the time of completion indicated in the Contract.
City Funded XV. Testing and Inspection
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
XVI. CONTRACTOR PRACTICES AT SITE
A. Cooperation Among Contractors
You must conduct the Work so as not to interfere with or hinder the progress or completion of the work being performed by other contractors within or adjacent to the Work site. You must assume all liability, financial or otherwise, in connection with this Contract, and must protect and save harmless the City from all damages or claims that may arise because of inconvenience, delay, or loss experienced due to the presence and operations of other contractors working within the limits of the Work. You must assume all responsibility for Work not completed or accepted due to the presence and operations of other contractors. You must coordinate and tie-in, where appropriate, your Work with that of others in an acceptable manner and perform the Work in proper sequence to the work of others. When other contractors cause any damage to the Work that you performed, you must file claims with the other contractors, and not against the City, and you must obtain compensation for damage directly from those other contractors.
B. -Protection of Persons and Property
1. Protection of Existing Structures and Property. You must avoid causing damage to trees, plant life, sidewalks, curbs, streets, alleys, pavements, utilities, adjoining property, the work of other contractors and the property of the City and others, and must, at your own expense, repair any damage that you or any Subcontractor may cause.
You are responsible for loss or damage by fire or theft of equipment, material, or other property of the City, incurred while the equipment, material or other property is located in any field office or on the site of the Work. Further, you must repair or replace any such equipment, material or other property so lost or damaged, to the satisfaction of the Commissioner, at no additional cost to the City.
You must familiarize yourself with the requirements of local and state laws applicable to underpinning, shoring and other Work affecting adjoining property and, wherever and whenever required by law, site conditions or standard industry practice, you must shore-up, brace, underpin, secure and protect all foundations and other parts of existing structures adjacent to, adjoining and in the vicinity of the Work site that may be in any way affected by the excavations or other operations connected with the Work to be performed under this Contract.
You are responsible for the giving of all required notices to any adjacent or adjoining property owner or other potentially affected party. The notice must be served in sufficient time so as not to delay the progress of the Work under this Contract.
You must take such precautions as are necessary to insure the safety of private property owners, lessees, and their invitees against injury caused as a result of settlement or displacement of structures. You must immediately proceed with all shoring or other Work necessary to restore the private property owner's property to a safe condition. If you fail to undertake the Work within 24 hours after written notice by the Commissioner, the City may proceed to repair or restore any such structure to a safe condition, and the cost of it will be deducted from any compensation due, or that may become due to you.
If, in the prosecution of the Work, it is necessary to excavate or occupy any. street, alley, or public grounds of the City, you must erect and maintain such barriers, and, during the
City Funded XVI. Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 20I7)
night time, such lights as will effectively prevent the happening of any accidents or damage to life, limb, or property in consequence of such excavation or occupation of such street, alley, or public grounds. You are liable for all damage occasioned by you, your agents, employees or Subcontractors of any tier in the excavation or occupation of any street, alley, or public grounds, and you must indemnify the City pursuant to Article XVIII, "Insurance, Indemnity and Bonds."
Upon Final Completion and Final Acceptance of the Work, you must remove all machinery, equipment, materials, false work, rubbish or temporary structures and leave the Work site and the premises of any private property owners in as good condition as they were before commencement of Work.
Materials and equipment necessary for the performance of the Work may only be placed, stored or allowed to occupy any space in public streets or alleys upon the written consent of the Commissioner. It is the City's intent that the operations under this Contract are conducted as far as practicable without interference with the public use of streets and alleys. All materials or equipment used in the performance of the Work must be placed so as not to impede traffic on streets and alleys adjacent to the site of the Work, and to allow free access to all fire hydrants, water valves and manholes that are a part of electric, telephone and telegraph conduit lines, fire alarms and police call boxes in the vicinity.
In removing existing pavements, sidewalks, curbs, gutters, walls, foundations, vaults and other structures, the use of any type of impact device in a manner that might damage buildings or their foundations, or other underground structures and utilities is not permitted.
You must indemnify and hold the City harmless from any damage due to settlement or the loss of lateral support of adjacent or adjoining property and from all loss or expense and all damages for which the City may become liable in consequence of the injury or damage to adjacent and adjoining structures and their premises. Your indemnity obligations will survive the expiration or termination of this Contract and include and apply to any liabilities and duties placed upon the City as owner or occupant of the property on which the improvements provided for in this Contract are to be constructed, by the provisions of an Act entitled "An Act to Prescribe the Duty of an Owner or Occupant of Lands Upon Which Excavations are Made in Reference to the Furnishing of Lateral and Subjacent Support to Adjoining Lands and Structures Thereon." See of 765 ILCS 140/0.01 ef seq.
2. Existing and Proposed Utilities. The Contract may show existing utilities lying within the limits of the Work, such as sewers, manholes, catch basins, gas lines, water lines, telephone and electrical duct lines, CTA facilities, and similar structures. The City does not guarantee the completeness or accuracy of the information regarding utilities, whether public or privately owned. You must make your own investigation to determine the existence, nature and location of all utilities at the Work site. You must verify the exact location of all utilities that may interfere with performance of the Work and must report to the Commissioner any differences from the locations shown on the Contract.
You must so arrange and conduct your Work that utilities may be removed, relocated or supported during excavation and maintained in service until the Work is completed. In addition, you must arrange and conduct your Work that utilities may be replaced,
City Funded XVI. Contractor Practices At Site 63
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
rearranged or relocated before backfill being placed. You must cooperate with the owners of those utilities in the performance of the Work.
Where existing utilities are abandoned and it is necessary to remove them due to the performance of the Work, you must remove them at no additional cost to the City, and they will become your property.
It is your responsibility to protect those existing utilities that are to remain in operation during and after completion of the Work, and any new utilities installed by others during the performance ofthe Work. You will be held fully responsible for any damage resulting from your performance of the Work, and will be required to repair, replace or reconstruct any utilities damaged, at your own expense, to the satisfaction of the Commissioner. The protection of the utilities as specified in this Contract must be at no additional cost to the City.
Utilities Outside the Limits of the Work. You must protect and maintain City-owned water lines, sewers, connections and appurtenances and all City-owned electrical conduits, cables, vaults and appurtenances that are located entirely outside the limits of the Work in a satisfactory manner until the completion of the Work. Whenever in the performance of the Work it is necessary, because of the nature of the Work or because of your method of performing the Work, to support, remove, replace, relocate, rearrange, adjust or repair such City-owned structures located entirely outside of the excavations, you must notify the appropriate City department to perform the Work, and must cooperate with the department in preserving service. You must reimburse the appropriate City department for the cost of performing the Work at no additional cost to the City under the terms of this Contract.
Utility Relocation and Continuance of Service Plan. You must prepare a Utility Relocation and Continuance of Service Plan, identifying procedures, locations, time frames and affected agencies and private owners. The Plan must be submitted to the Commissioner for review within 14 days after the Notice to Proceed.
Cooperation with Utilities. You must cooperate with all utility companies involved in connection with the removal, temporary relocation, reconstruction, or abandonment by these agencies of all services or facilities owned or operated by them within the limits of the Work.
Work Performed by Others. The Work must be performed with a minimum of interference to street traffic in the area. You must coordinate your Work with that of other City contractors, with contractors employed by adjacent property owners, and with contractors employed by any other party or parties for work on utilities to insure the best progress of the Work as a whole.
Preservation and Protection of City Standard Bench Monuments and Survey Controls. You are responsible for the preservation and protection of all City Standard Bench Monuments, in accordance with the provisions of § 10-4-220 of the Municipal Code and Article 105.09 ofthe Standard Specifications, and as directed by the Commissioner. Any survey control point that you disturb or remove you must replace or reestablish to the satisfaction of the Commissioner, at no additional cost.to the City. DAMAGE TO ANY OF THE CITY STANDARD BENCH MONUMENTS WILL RESULT IN YOUR BEING PROSECUTED TO THE FULL MEASURE OF THE LAW. The Department of General
City Funded XVI. Contractor Practices At Site 64
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
Services will pursue the matter of compensation for damages incurred by the City resulting from your actions or your failure to act during the execution of Work on this project.
Protection of Streets and Traffic. You must provide all necessary barricades, signs, flags, lights and reflectors. You must assure that vehicular and pedestrian traffic on all streets, including adjacent streets, bridges, overpass structures and ramps is maintained during the performance of the Work in accordance with the requirements of the Contract.
Temporary Restoration of Trench Cuts. Failure to maintain the temporary restoration of trench cuts, which causes the surrounding work area to be in an impassable and/or hazardous condition thereby creating undue inconvenience and danger to area residents is an event of default under this Contract.
Temporary Barriers, Signs, Lights and Flaggers. You must furnish, relocate and remove portable barricades and lights, collision protection, temporary signs (including traffic and project signs) and supports as directed by the Commissioner; and furnishing all necessary flaggers and other protection necessary for the maintenance of traffic flow in a safe and orderly fashion, as required by Article 107.14 of the IDOT Standard Specifications, except as otherwise specified in the Contract.
You must maintain, repair or replace all damaged or destroyed appurtenances referenced in the immediately preceding paragraph throughout the life of the Contract. Maintenance includes cleaning of the barricades and traffic signs by means of clean water. Flaggers must be provided whenever circumstances warrant.
The barricades must be erected, moved, repaired and repainted as required. Upon the completion of the Work, all barricades remain your property and must be promptly removed from the Work site.
Historical and Scientific Specimens. You must preserve and deliver to the Commissioner any specimens of historical or scientific value encountered in the Work, as directed by the Commissioner.
Protection of Streets, Alleys and Public Grounds
When excavating or occupying any street, alley or public grounds of the City, you must erect and maintain temporary barriers and, during the night time, lights that will effectively prevent accidents or damage to life, limb or property in consequence ofthe excavation or occupation of the street, alley or public grounds. You are liable for all damages as a result of the excavation or occupation of any street, alley or public grounds, or by the carelessness of you, your subcontractors, agents, employees or workers and must indemnify and hold harmless the City against all judgments rendered against it by reason thereof.
Protection of Existing Trees in the Right of Way
1. In accordance with the provisions of Chapter 10-32 of the Municipal Code you must protect all trees and shrubs at the construction site from damage. You must restore all damaged parkways to their original condition and repair or remove and replace any trees and shrubs damaged as a result of construction activity (as determined by the Department of Streets and Sanitation, Bureau of Forestry) at your expense. If any trees or shrubs damaged by construction activity must be removed and replaced, and trees or shrubs of comparable size, type, and value are unavailable or the time for planting is
City Funded XVI Contractor Practices At Site 65
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
unsuitable, the City will charge you their appraised value determined as provided under § 10-32-200 of the Municipal Code, which amount the City will deduct from amounts due you, or, if no amounts are due, then you must promptly pay the City the amounts determined. Any tree greater than 4" D.B.H. that is permanently damaged due to the construction project and not originally marked for removal must be replaced with a new tree as identified by the Bureau of Forestry and must have a minimum of 4" caliper B&B. Any damaged tree smaller than 4" caliper measured 6" above the ground must be replaced in kind, inch for inch.
2. You must install a protection barrier or temporary fence of at least 1.2m (4 feet) in height around each tree to be protected and preserved. The tree protection must be installed before the actual construction starts and maintained for the duration of the project.
Within this protection zone, you must prevent construction materials from being stored, equipment from being operated and temporary storage buildings or work trailers from being placed.
The protection barrier must be constructed of orange snow fencing securely fastened to fence posts spaced a maximum of 1.5 m (5 feet) on center. Posts are 1.8m (6 feet) in length with 61 cm (2 feet) set into the ground and 1.2m (4 feet) extending above ground. The fencing must be attached to the post with a minimum of four nylon locking ties evenly spaced at each post.
Dimensions of the protection barrier are as follows:
Trees located in Tree Pits: Where trees are located within Tree Pits, the temporary fencing should be installed at a minimum distance of the inside dimension of the Tree Pit opening with one stake at each corner ofthe opening.
Trees located in Parkways or Boulevards:
Small Trees (<9" D.B.H.): Minimum 1.5m (5 feet) from face of tree along the parkway length. In the dimension bordered by the public sidewalk or curb, the temporary fencing must be the width of the grass parkway with a maximum offset of 30cm (1 foot) from back of curb or edge of sidewalk. In no case must the closure be less than 61cm (2 feet) from the centerline of the tree.
(Example: 6" Tree in a 6' parkway as measured from back of curb to sidewalk. The dimension ofthe protection fencing would be 1.2m x 3m (4' x 10') with tree in the center). Note: Larger grass parkways (>12') may allow for a ten foot by ten foot (10' x 10'). Thus, the dimension bordered by the sidewalk or curb would not affect fencing distance.
Medium (10"to 15" D.B.H.): Minimum of ten (10)--feet from face of tree along the parkway length. In the dimension bordered by the public sidewalk or curb, the fencing must be the width of the grass parkway with a maximum offset of one foot from back of curb or edge of sidewalk. In no case must the closure be less than two feet from the centerline of the tree.
Large (>15" D.B.H.): Minimum of 15 feet from face of tree along the parkway length. In the dimension bordered by the public sidewalk or curb, the fencing must be the width of the grass parkway with a maximum offset of one foot from back of curb or edge of
City Funded XVI. Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lune ?.()I7)
sidewalk. In no case must the closure be less than two feet from the centerline of the tree.
E. Care of Existing Structures and Property
Property Access Maintenance Plan. You must prepare a Property Access Maintenance Plan consistent with the requirements of the Contract. The plan must be submitted to the Commissioner for review within 14 days after award of the Contract. You must comply with all applicable Federal, State, and local requirements. You must also comply with the following requirements:
Maintain vehicle and pedestrian access to properties;
Maintain pedestrian access on both sides of all streets;
Provide access walkways to all buildings and businesses;
Sidewalks must remain open to the maximum extent possible;
Provide temporary relocation of access, where required;
Provide advisory and temporary signs for pedestrian and vehicle access changes and reroutings; and
Coordinate delivery locations and timing.
Before doing any Work adjacent to or on the site of any buildings or other structures adjoining or in the line of the Work to be performed under the Contract, you must supply written notice of it to the owner or owners that the Work is to be done, and must cooperate with the owner(s) in the maintaining, removing, relocating, rearranging or adjusting wherever necessary, of all basements of buildings, subsidewalk vaults, tunnels, conduits, wires, poles, pipes, gas mains, cables, steam and street railway tracks and equipment, or other appliances and structures located in any portion of the streets, public areas, highways and easements to be occupied or used during the prosecution of the Work.
Wherever in the performance of the Work it is necessary to remove, reconstruct, relocate, rearrange, adjust or repair City-owned sewers, catch basins, manholes, inlets, sewers connections and appurtenances by reason of the fact that the structures and appurtenances pass through or are located within the limits ofthe Work as shown on the plans, or ordered by the Commissioner you must perform the Work necessary to remove, reconstruct, relocate, rearrange, adjust or repair those structures and appurtenances, unless otherwise noted on the plans.
The Commissioner will, at his sole discretion, direct you to modify your method of Work to interfere as little as possible with the normal conduct of business in or around the portions of the buildings or structures in use.
The building or structures may be in full time use and operation and will continue in normal use during performance of the Work. Building facilities, including heating, ventilation, and air conditioning, lighting and plumbing, will not be interrupted in the occupied areas, except as required for making connections to power sources as specified below.
City Funded XVI. Contractor Practices At Site 67
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
You will serve written notification to the Commissioner requesting any anticipated interruption in facilities at least two weeks before disruption of services. You must provide any temporary facilities deemed necessary by the Commissioner due to a disruption of services. The Commissioner, in his sole discretion, will determine the procedures, times of day and dates you may accomplish the Work and may reject or modify your request.
Storage of all material and/or equipment must be in areas approved by the Commissioner, in a manner to minimize interference with the normal conduct of business in or around the occupied portions ofthe building and vehicular,areas.
4. You must not perform Work on City-owned water mains, connections and appurtenances or on any City-owned electrical conduits, cables, vaults and appurtenances unless the City has abandoned the structure and the Commissioner has authorized the Work or the Work is included in the Contract. But, you must adjust City-owned water manholes and electric manholes that are shown as "to be adjusted" on the plans.
You must protect and maintain in a manner satisfactory to the Commissioner, protect and maintain all City-owned water mains, connections and appurtenances and all City-owned electrical conduits, cables, vaults and appurtenances that are located entirely outside of the neat lines of the excavation as shown on the plans or as ordered by the Commissioner, until the completion of the Work under the Contract. Whenever in the performance of the Work under the Contract it becomes necessary because of the nature of the Work required by the Contract or because of your method of performing the Work, to support, remove, replace, relocate, rearrange, adjust or repair those City-owned structures located entirely outside of the excavations, you must notify the appropriate City Department to perform the Work, and must cooperate with the Department in preserving service in or through them. You must reimburse the appropriate City Department for the cost of performing the Work, and the cost must be included in the various Contract prices.
Without cost to you the City will support, protect and maintain all City-owned water mains, connections and appurtenances and all City-owned electrical conduits, cables, vaults and appurtenances, any part of which is located inside of the neat lines of the excavations as shown on the plans or ordered by the Commissioner, or it will remove, replace, relocate, rearrange, adjust, or repair them, both inside and outside of the excavations. You, however, must adjust those City-owned water manholes and electric manholes that are shown as "to be adjusted" on the plans. Whenever in the performance of the Work under the Contract it becomes necessary to support, protect, maintain, remove, replace, relocate, rearrange, adjust or repair such City-owned structures any part of which is located inside of the excavations, you must notify the appropriate City department to perform the Work and must cooperate with the department in preserving service in or through them.
With the exception of the City-owned water mains, connections and appurtenances and the City-owned electric conduits, cables, vaults and appurtenances described above, and with the exception of City-owned structures that are to be removed or otherwise Worked upon as part of the requirements of the Contract, you must support, protect, maintain or relocate and rebuild all poles, trees, shrubbery, fences, sewers, pipes, conduits, cables, wires, manholes, tunnels, buildings, subways and
City Funded XVI. Contractor Practices At Site 68
Exhibit 19 Construction Terms and Conditions
/
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
other City-owned structures that pass through and are located within the excavations or that are adjacent to the Work to be constructed under the Contract during the construction and until the completion ofthe Work under the Contract
You must notify and cooperate with the owners thereof in maintaining, removing, relocating, rearranging, or adjusting wherever necessary, all basements of buildings, subsidewalk vaults, tunnels, conduits, wires, poles, pipes, gas mains, cables, steam and street railway tracks and equipment or other appliances or structures located in any portion of the streets, public areas, highways and easements that are to be occupied or used during the construction of the Work specified under the Contract.
Wherever in the performance of the Work specified under the Contract it becomes necessary to remove, replace, rearrange, adjust or repair City-owned sewers, catch basins, manholes, inlets, sewer connections and appurtenances by reason of the fact that the structures and appurtenances pass through or are located within the limits of the excavations as shown on the plans or ordered by the Commissioner, you must perform the Work necessary to remove, replace, relocate, rearrange, adjust or repair the structures and appurtenances. The cost of performing the Work must be included in the Contract price.
Wherever in the performance of the work specified under the Contract it becomes necessary to support and maintain City-owned sewers, catch basins, manholes, inlets, sewer connections and appurtenances or wherever it becomes necessary as a result of your methods of construction during the Work under the Contract, to remove, replace, relocate, rearrange, adjust, or repair City-owned sewers, catch basins, manholes, inlets, sewer connections and appurtenances (other than those specified in the last preceding paragraph) you must perform the Work necessary to support, maintain, remove, replace, relocate, rearrange, adjust or repair the structures and appurtenances, and you must bear the cost of the Work without any additional compensation for it.
It is the intention of the specifications that you include in the appropriate Contract Price or prices, all necessary cost and expense of supporting, maintaining, removing, replacing, relocating, rearranging, adjusting or repairing all City-owned appliances and structures (other than City-owned water mains, connection and appurtenances and City-owned electrical conduits, cables, vaults and appurtenances described in Section XVI.E.4.b), encountered in or affected by the Work, and that you must also include in the price or prices all necessary cost and expense of removing structures that have been or will be abandoned by their owners and that are necessary to be removed in order to construct work under the Contract, but you must not include in the price or prices the cost or expense of supporting, maintaining, moving, replacing, relocating, rearranging, adjusting or repairing those appliances or structures that are not owned by the City and are not abandoned by their owners, except as may be otherwise specified below in this Section.
You must take all reasonable precautions for the protection of buildings, railroad tracks, street railway tracks and appurtenances, and other appliances and structures not owned by the City.
City Funded XVI Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
You must determine the methods to be employed, the procedure to be followed, the equipment, plant, falsework, shoring, bracing and other temporary structures and equipment to be used on the Work, subject to the requirements of the Contract and the approval of the Commissioner. Only adequate and safe procedures, methods, structures and equipment must be used.
You must provide drawings and calculations for all equipment, falsework, shoring, bracing and other temporary structures required for the Work, designed, signed and sealed by an Illinois licensed structural engineer. You must submit copies of all such drawings and calculations to the Commissioner for information only.
Field Check of Dimensions, Cutting and Patching. Where the Work connects to existing structures or appurtenances, you must take complete field measurements affecting all Work under this Contract and are solely responsible for the proper fit between the Work and existing structures or appurtenances. You must perform all cutting, patching, or fitting of Work that may be required to properly fit together the several parts of the Work and the existing structures or appurtenances.
Contractor's Layout of the Work. You are responsible for the correct lay-out and accurate fitting of all parts of the Work. You must furnish at your own expense all labor, materials and other expenses necessary for, or incidental to, the setting and maintaining of lines and grades (exclusive of the Work of establishing the original reference base line and bench marks that will be performed by the City). No separate payment to you for the cost of any of the Work specified in this Contract. The cost is included in the Contract unit or lump sum prices.
Salvage of Materials. If and whenever City- owned property such as valves, cast iron manholes, catch basin frames and covers, inlet boxes and grates, or any other appurtenance are to be removed and are not to be reused in the Work, you must securely store them at a suitable place on the job Site for possible use by the City (unless otherwise stipulated). You must take care to prevent damage in your handling of these appurtenances. You must deliver all items identified by the City for reuse to a location designated by the Commissioner and must legally dispose of the remaining items.
Wherever basements of buildings, subsidewalk vaults, tunnels, sewers, water, gas, telephone, telegraph, electric or other pipes, conduits, cables, wires, manholes, vaults, steam and street railway tracks or other similar structures and appliances not owned by the City are in or cross the excavations for structures to be built under this Contract, you must notify the owners of the structures and appliances to support, move, rearrange or abandon them, and cooperate with the owners of the structures and appliances in preserving the service or services provided by the structures and appliances, except as may be otherwise specified or provided in the Contract. If you have complied with the above requirements and has been notified by the owners of the structures and appliances that any of them have been abandoned, or lacking such notice, if you have made all investigations and has found that any of the above structures or appliances have been abandoned by their owners and if the removal of any such abandoned structure or appliance is necessary in order to construct the Work, you must remove them at no additional cost to the City.
City Funded XVI. Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised kmc 2017)
Wherever basements of buildings, subsidewalk vaults, tunnels, sewers, water, gas, telephone, telegraph, electric or other pipes, conduits, cables, wires, manholes, vaults, steam and street railway tracks or other similar structures and appliances are adjacent to, but do not cut through or cross the excavations for structures to be built under the Contract, you must perform the Work in such a manner as to not cause damage to the structures and appliances and not interrupt their use during the progress of the Work.
You must arrange to notify the owners of structures and appliances that are to be supported, maintained, removed, reconstructed, relocated, rearranged, adjusted or repaired by reason of the Work in ample time to permit them to do their work. The Commissioner may direct you to suspend your operations on that part of the Work that affects the structures and appliances until their owners have had time to perform the work.
You must conduct the Work so that no equipment, material or debris is placed upon private property unless you have first obtained the owner's written consent thereto and provided this written consent to the Commissioner. You must take such means as may be required to prevent the creation of a public nuisance on any part of the Work site or adjacent streets or property.
You must thoroughly clean all streets, pavements, sidewalks and parkways and all private property of all surface materials, earth and rubbish and restore them to as good condition as before the commencement of the Work. Where you have removed or killed sod, you must provide new live sod. Where the areas have been seeded, you must replace top soil equivalent to that removed, fertilize it, seed and roll it to the satisfaction of the owner of the land. You must replace all trees, shrubs and plants damaged in the proper season of the year with live, growing stock of the same kind and variety and of the size ordinarily used for planting purposes.
F. Precautions and Safety
You must take any precautions that may be necessary to render all portions of the Work secure in every respect, to decrease the liability of accidents from any cause and to avoid contingencies that are liable to delay the completion of the Work. You must furnish and install, subject to the approval ofthe Commissioner, all necessary facilities to provide safe means of access to all points where Work is being performed and make all necessary provisions to insure the safety of workers and of engineers and inspectors during the performance of the Work. You are required to conduct your Work so as not to unnecessarily obstruct the activities of other contractors who also may be engaged in work on this or any other project.
Although the Commissioner may observe the performance of the Work and reserves the right to give you opinions and suggestions about safety defects and deficiencies, the City is not responsible for any unsafe working conditions. The Commissioner's suggestions on safety, or lack of it, will in no way relieve you of your responsibility for safety on the Work site. You have sole responsibility for safety and the obligation to immediately notify the Commissioner of all accidents.
Precautions must be exercised at all times for protection of persons (including employees) and property. The safety provisions of applicable laws and building and construction codes must be observed.
City Funded XVI Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lunc 2017)
You must provide completely equipped first aid kits readily accessible at all times on the Work site. You must designate an appropriately trained individual on each shift to'be in charge of first aid.
You must provide at appropriate locations fire extinguishers or other fire protection equipment that comply in all respects with the Municipal Code and NFPA standards. You must maintain this equipment in proper operating condition at all times and must cause the equipment to be inspected by all appropriate agencies as required by law, but in no event less than monthly. You must comply with the Municipal Code requirements on the use of standpipes, hoses and other fire protection equipment.
Only such materials and equipment as are necessary for the construction of the Work under this Contract must be placed, stored or allowed to occupy any such space at the site of the Work. Not more than one day's supply of flammable liquids, including oil, gasoline, paint, or solvent is permitted to be kept on hand at any one time. If gasoline, flammable oils, other highly combustible materials or compressed gas cylinders are to be stored at the site, they must be stored in a secure manner, in compliance with all applicable laws, ordinances and regulations, and all storage places must be clearly marked. The written consent of the Commissioner is required for such storage. That consent in no way limits your liability for the materials.
You must prohibit all lighting of fires about the premises and all smoking in restricted areas where posted with "NO SMOKING" signs, and you must diligently enforce this prohibition. You must furnish and post "NO SMOKING" signs. You must not permit any debris or waste materials to be burned at the Work site.
G. Health, Safety and Sanitation
Clean-Up. During construction, you must keep the Work site and adjacent premises as free from material, debris and rubbish as practicable. Haul roads, streets and public areas must be swept daily. Before Final Completion and Acceptance of the Work, you must remove from the Work site and adjacent premises all machinery, equipment, surplus materials, falsework, excavated and useless materials, rubbish, temporary buildings, barricades and signs and must restore the site to the same general conditions that existed before the commencement of the Work. The cost of final clean-up is included in the unit prices for the various items, or included in the Contract lump sum price, as the case may be. You must clean off all cement streaks or drippings, paint smears or drippings, rust stains, oil, grease, dirt and any other foreign materials deposited or accumulated on any portion of your Work, or existing facilities and structures, due to your performance ofthe Work.
Snow and Ice Removal. You must remove snow and ice that may impair progress of Work, be detrimental to workers, or impair trucking to and from points of delivery at the Work site.
Glass Breakage. You must replace all glass broken or damaged during construction at no additional cost to the City. You must promptly remove all broken glass from the Work site.
Noise and Vibration Control. All equipment, vehicles, and Work under this Contract must be conducted in accordance with the City Building Code, Chapter 11-4 ofthe Municipal Code, "Environmental Protection and Control," Article VII - Noise and Vibration Control,
City Funded XVI Contractor Practices At Site 72
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
so as to cause a minimum of noise, vibration and inconvenience to the activities of the occupants of property and buildings in the vicinity of the Work. When the Commissioner, in his sole discretion, determines that your operations constitute a nuisance, you must immediately proceed to conduct your operations in a manner that abates the nuisance. You must provide all measures, including engine and exhaust mufflers, acoustic casing enclosures, maintaining equipment, or physical barriers along the edges of the construction zone, required to minimize noise and vibration. Noise and vibration ieveis may be monitored by the Commissioner.
Health and Safety. You must comply with the requirements of 29 C.F.R. part 1926 -Safety and Health Regulations for Construction, promulgated under the U.S. Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651 et seq. (OSHA). Copies may be obtained from the Regional Administrator of the U.S. Department of Labor, Federal Office Building, 230 S. Dearborn, Chicago, Illinois.
You must comply with the requirements of the Illinois Health and Safety Act, 820 ILCS 225/.01 et seq., and the rules and regulations promulgated under it by the Director of Labor for the State of Illinois, which are on file with the Illinois Secretary of State.
Whenever a Federal OSHA Compliance Officer arrives at the work site, you must notify the Commissioner immediately. At the conclusion of the inspection, you must report any findings to the Commissioner. Copies of any citations issued and related documents must be submitted to the Commissioner.
You must maintain the following records and make available to the Commissioner for review: (i) all records required by OSHA, including the accident log, Fed/OSHA #200, and posting of the prescribed OSHA poster; (ii) log of safety activities, accident investigation, employee instruction, training, tool-box meetings, and any other pertinent information; and (iii) Material Safety Data Sheets (MSDS) as required for each material you have used at the Work site.
You must enforce among your employees such regulations in regard to cleanliness and the disposal of garbage and wastes that are necessary for their health and tend to prevent the inception and spread of contagious and infectious disease among them. You must provide an ample supply of suitable, pure drinking water, and must take such means as the Commissioner may direct to effectively prevent the creation of a nuisance on any part of the Work site or adjacent streets or property. You must construct and maintain necessary sanitary conveniences for the use of the laborers on the Work, properly secluded from public observation, in such manner and at such points as be approved, and their use must be strictly enforced. Whenever manholes have been used for sanitary proposes, they must be thoroughly flushed and cleaned when no longer needed.
The manner of disposing of waste must be such that all waste is disposed of without creating a public nuisance or health hazard and in accordance with Illinois Department of Public Health Circular No. 815, Educational Health Circular No. 4.001, and all Illinois Environmental Protection Agency rules and regulations.
You must also comply with all rules and regulations of the Federal and State governments and the City Department of Public Health.
City Funded XVI. Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
M. Hazardous Operations and Security
During construction, all cutting or welding operations must be carried out with all precautions taken to prevent fires resulting from sparks or hot slag. Extreme care must be exercised to determine that sparks or embers do not fall into any combustible materials, even if such material is stored on lower floors. Sheet metal wind screens must be provided around the lead-melting furnaces whether the Work site is enclosed or not. Portable fire extinguishers must be provided at and below all locations where cutting or welding or melting operations are being performed or, if those operations are extensive, a hose from the stand pipe system or fire hydrant must be placed nearby. You must obtain special permission from the Commissioner of Water and pay all associated connection fees.
No welding, flame cutting, or other operations involving use of flame, arcs, or sparking devices, will be allowed without adequate protection. All combustible or flammable material must be removed from the immediate working area. If removal is impossible, flammable or combustible materials must be protected with fire blankets or suitable non-combustible shields to prevent sparks, flames or hot metal from reaching flammable or combustible materials. You must provide necessary personnel and equipment to control incipient fires resulting from welding, flame cutting, or other sources involving use of flame, arcs, or sparking devices.
You must immediately report any concentration of gas fumes, and you are responsible for clearing the area and notifying the Commissioner and the appropriate utility company. All operations in the area must be suspended until the source of the fumes has been located and corrected.
You must arrange for the installation of necessary fire protection lines and equipment as required by the Chicago Fire Department and as necessary to properly protect the Work site. Permanent fire protection facilities may be used for this purpose as soon as they are installed, tested and approved by the Commissioner for temporary use.
Salamander heaters or similar forms of uncontrolled heaters must not be used except with the special written permission of the Commissioner and City fire marshal and then only when each salamander is maintained under constant supervision.
Gasoline must be kept in and handled from approved safety cans.
All tarpaulins used for any purpose must be made of fire, water and weather-resistant materials.
You must furnish such watchmen as may be necessary to protect the public and those who are at or in the vicinity of the Work under this Contract, and to protect all materials, tools, machinery and equipment and all Work you have performed.
You must comply with all Federal and State and local occupational health and safety statutes, and any occupational health and safety standards promulgated thereunder; provide reasonable protection to the lives, health and safety of all persons employed under this Contract; furnish to all such persons a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm; keep all persons employed under this Contract informed of your protections and obligations under the statutes; and provide all persons employed under this Contract
City Funded XVI. Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
with information regarding hazards in the workplace, including information about suitable precautions, relevant symptoms and emergency treatment. The Federal and State occupational health and safety statutes, and the rules and regulations promulgated thereunder, are considered part of this Contract as though fully set forth in this Contract.
10. You must provide safety instructions and training for all workers. You must conduct weekly craft safety meetings (tool-box type) of reasonable length as an effective means of communicating safety issues to workers. Reports containing tool box discussion topics must be signed-off by all attendees and must be submitted to the Commissioner.
I. Services and Use of Site
Work Area. After receipt of the Notice to Proceed, you must propose a suitable working area subject to approval by the Commissioner. You must secure the space at your own expense.
Temporary Services and Utilities. If specified in the Contract, you are responsible for arranging for and providing all general services and temporary facilities as specified in the Contract and as required for the proper and expeditious prosecution of the Work. You must pay all costs for those general services and temporary facilities. You must provide temporary connections for water, electricity and heat including installation, maintenance and removal of those facilities. ' You must pay the cost of all water, telephone, and electricity during the construction period.
Water. You must provide temporary water connections as required for drinking and construction purposes. The Commissioner reserves the right to regulate the use of water and may impose restriction on the use if you are using water carelessly. You must provide water and facilities for obtaining water for sanitary purposes, drinking, mixing concrete and for all other purposes at your expense. You are not permitted to obtain the water from the mains of the Chicago water system, except as may be provided in the Contract. Except with special permission from the Commissioner and the Department of Water, you must not make connections for water to the City's fire hydrants.
Light and Power. You must furnish the electricity and must furnish and install all wiring, electrical services, lighting units, insulated supports for wiring and all other electrical equipment together with all other incidental and collateral Work necessary for the furnishing of the temporary power and lighting facilities for the Work to be done under this Contract, all at no additional cost to the City. Electrical Work must be performed by a licensed electrician.
Temporary Heating During Construction. You must provide temporary closures or enclosures for all exterior door, window, roof or other types of exterior openings as required to provide protection from the elements during construction. It is your responsibility to keep water in pipes from freezing and to maintain temporary heat in areas where Work is being performed at not less than 50° Fahrenheit. Finish Work includes, but is not limited to masonry, plastering painting, millwork and other temperature sensitive Work. The Heating period is from approximately October 1 to May 30 unless conditions warrant otherwise. You must furnish, install, operate and maintain all required temporary heating equipment, and must provide and pay all fuel costs.
City Funded XVI Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
3. Temporary Construction Facilities. Unless otherwise specified, you must provide and maintain the following temporary construction facilities throughout the construction period and remove them at the completion of the Work:
Field Offices. Unless otherwise specified, you must provide a temporary building or mobile type field office of such size and containing such equipment as you deem necessary to conduct the operations. The field office must be provided with a telephone for your superintendent and a pay telephone for use by others during the entire period of construction. The telephone must be removed promptly upon Final Completion and Acceptance of the Work.
Unless otherwise specified, you must supply a field office for the City's Superintendent consisting of a separate office facility. It must be of adequate size for efficient operations and be furnished with a desk, three chairs, 4-drawer file cabinet and a plan table. It must be equipped with electric lighting, heating, ventilating and cooling facilities. You must provide a separate telephone for City Superintendent's use.
You must also provide and maintain in clean condition for Superintendent's use, including toilet facilities, having a water closet and laboratory fixture connected to sanitary sewer and water service. Temporary toilet facilities must be located in the City's Superintendent's trailer and comply with City and State regulations relating to health and sanitation. The toilet facility must be serviced twice weekly and kept stocked with toilet paper, soap, and paper towels.
Toilets. You must provide at least one portable chemical toilet for every 20 workers or fraction of that number at the Work site as soon as construction operations commence. Toilet facilities must be serviced, at a minimum, twice weekly, which includes draining tank and refilling and disinfecting the interior of each toilet unit, and keeping each unit stocked with toilet paper. Toilet facilities must be maintained during the term of the construction period and removed upon completion of the Work.
Stove heaters in temporary offices and sheds must be properly installed to protect combustible walls, floors and roof.
- d. Storage of Materials. If it is necessary to store materials, they must be protected in such a manner as to insure the preservation of their quality and fitness for the work. All stored materials will be inspected at the time of use in the Work even though they may have been inspected and approved before being placed in storage. You may store materials in the areas provided as working areas by the Contract. If no areas are provided, or if the areas provided are insufficient, you must provide the space required at your expense. Upon completion ofthe Work, you must clean and restore the storage sites and working areas to their original condition at your expense.
All materials and equipment must be received at the Work undamaged. The Commissioner has the right to reject any method of packing and shipping that, in the Commissioner's opinion, will not adequately protect the materials and equipment against damage while they are in transit or storage or that will damage existing structures.
City Funded XVI Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised .lime 2017)
e. Storage Sheds. You and each Subcontractor must provide suitable watertight storage sheds for your, or their own, use as needed. You and each Subcontractor are responsible for and must pay for any electric services to your or their storage sheds. However, the electrical Work must be performed by a licensed electrical Subcontractor. You are responsible for materials stored in the open; they must be arranged in an orderly manner and properly protected against the elements and damage.
Working Space. You must provide working space for your own use and for each of your Subcontractors. It must provide sufficient space for benches, tools, material storage and for such other purposes as may be required to properly perform and expedite the Work. Allocation of such Work areas is subject to approval by the Commissioner. You must maintain all Work areas in a clean and orderly condition and take whatever precautions as may be necessary adjacent to the new Work. You must clean, repair or replace any damage to Work site due to improper protection at no additional cost to the City.
Equipment and Falsework; You must determine the methods to be employed, the procedures to be followed, the equipment, plant, falsework, shoring, bracing, and other temporary structures and equipment to be used on the Work, subject to the requirements of the Contract. Only adequate and safe procedures, methods, structures, and equipment must be used. You must furnish and maintain and are solely responsible for all equipment such as temporary ladders, ramps, runways, hoists, scaffolding, and similar items required for proper execution of Work. All such apparatus, equipment and construction must meet the requirements of Federal, State and local laws concerning the safety and protection of employees. No hoist, scaffolding or other equipment must be erected at such location as will interfere with general construction or progress of other trades. Hoists, scaffolding or other equipment must be located at sufficient distance from exterior walls to prevent staining or marring of any permanent Work. All suspended scaffolding and staging must be lowered to ground level at the end of each work day.
Project Signs. You must erect and maintain signs identifying the Project and indicating City, and to the extent applicable, State and Federal participation. Work under this item includes constructing and erecting project signs of the size and material specified in the Contract drawings. These signs must be erected in locations approved by the Commissioner and must be maintained throughout the term of this Contract. You are responsible for the immediate removal of graffiti. If you are notified of graffiti, you must remove such within 24 hours. The signs must not be removed until you receive such notice from the Commissioner. No separate payment will be made for furnishing, erecting and maintaining the project signs; it is incidental to the Contract.
J. Reports and Plans
Daily Progress Reports. You and all Subcontractors must prepare and submit to the Commissioner daily progress reports on the various parts of the Work. The report must include the number of workers and the classification of the trades involved, equipment used and any pertinent information regarding possible delays in the Work.
Procedures, Methods and Equipment. You will determine the methods to be employed, the procedure to be followed, the equipment, plant, falsework, shoring, bracing and other temporary structures and equipment to be used on the Work, subject to the requirements
City Funded XVI Contractor Practices At Site
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
of the Contract. Only adequate and safe procedures, methods, structures and equipment must be used. Any approval, constructive or otherwise, by the Commissioner of such methods, procedures and equipment in no way relieves you of any of your obligations under this Contract.
XVII. ENVIRONMEN TAL REQUIREMENTS
Compliance with Environmental Laws
You must comply with all Environmental Laws including those listed in the Economic Disclosure Statement and Affidavit (EDS),which you must execute and have notarized, and any analogous future local, State or Federal ordinance or statute, rule and regulation promulgated under or under the foregoing, and any other present or future law, ordinance, rule, regulation, permit or permit condition, order, or directive which regulates, relates to, imposes liability for or establishes standards of conduct concerning any Hazardous Materials that may be set forth by the Federal government, any state or any political subdivision thereof, or any agency, court or body of the Federal government, any state or any political subdivision thereof exercising executive, legislative, judicial, regulatory or administrative functions.
If you are required under any Environmental Laws to file any notice or report of a release or threatened release of Hazardous Materials or Special Wastes on, under, or about any premises you use to perform the Work required under this Contract, you must provide a copy of the report or notice to the City. In the event of a release or threatened release of Hazardous Materials or special waste into the environment, or in the event of any claim, demand, action or notice is made against you regarding your failure or alleged failure to comply with any Environmental Law, you must notify the City pursuant to Section XVIII.C, "Disposal of Waste Materials, Construction Debris, Soils and Waste," below.
If you fail to comply with any Environmental Law, the City may terminate this Contract in accordance with the default provisions of this Contract and may adversely affect your eligibility for future contract awards.
Environmental Permits
You must show evidence of, and keep current throughout the term of this Contract, all waste hauling, special waste hauling, disposal permits and insurance certificates required by Federal, State, City or other local governmental body or agency pursuant to any.Environmental Law.
When requested by the Commissioner, you must submit copies of all hauling permits required by any Environmental Law. Copies of all permits and insurance certificates that require periodic renewal must be forwarded to the Commissioner throughout the duration of this Contract. Noncompliance with this requirement may be cause for rejection of the bid and/or termination of this Contract and declaring you non-responsible in future bids.
Environmental Records and Reports. You are required to prepare and maintain proper, accurate and complete records of accounts of all transactions related to the performance of this Contract, including:
Vehicle maintenance records;
Safety and accident reports;
City Funded XVI Contractor Practices At Site 78
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
IEPA or OSHA manifests;
Disposal records, including disposal site used, date, truck number and disposal weight, bills of lading, manifests, or other confirmatory receipts signed by a representative of accepting facility for each load of material; and
Permit documentation and all other documentation and transactions pertaining to all Environmental Laws.
C. Disposal of Materials, Construction Debris, Soil and Waste
You are responsible for the proper disposal of all materials, construction debris, soil and other waste. Hauling and disposal by a Subcontractor does not relieve you from responsibility for proper disposal. Disposal of all materials, construction debris, soil, and other wastes must be at a disposal site that is properly licensed and permitted to accept the particular materials, construction debris, soil and other wastes delivered to it in accordance with all Environmental Laws. You must identify the disposal site(s) or transfer station(s) to which you have contractual access and for which proper, sanitary landfill permits and/or licenses have been obtained.
You must provide the Commissioner or his designated representative with copies of all load tickets, manifests, bills of lading, scale tickets and other pertinent documents. When requested by the Commissioner, you must provide copies of all permits and/or licenses for the proposed transfer station and/or landfill. If the transfer station and/or landfill you propose to use does not possess the necessary permits and/or licenses to accept the materials, construction debris, soil or other wastes, you must replace the transfer station and/or landfill submitted as part of their bid proposal at no additional cost to the City. If you dispose of materials, construction debris, soil or other wastes at a site that is not properly permitted, you will be responsible for all costs associated with the removal of the waste to a properly licensed/permitted landfill or disposal site.
You must notify the Commissioner, within 24 hours, of receipt of any environmental complaints, fines, citations, violations or notices of violation ("Environmental Claim") by any governmental body or regulatory agency against you by any third party relating to the loading, hauling or disposal of materials, construction debris, soil or other wastes. You must provide evidence to the Commissioner that any such Environmental Claim has been addressed to the satisfaction of its issuer or initiator.
You must notify the City of any community meetings, media involvement or media coverage related to the loading, hauling or disposal of materials, construction debris, soil and other wastes under this Contract in which you are asked to participate.
You must verify, in writing, whenever requested by the Commissioner, that all materials, construction debris, and other waste you accept from the City have been disposed of in compliance with all Environmental Laws.
The form for identifying your debris disposal/handling site(s) and acknowledging terms and conditions relating thereto which you have executed and attached to this Contract is incorporated by reference (the "Form"). In addition to the representations and requirements contained in the Form, you acknowledge that unless otherwise authorized in writing by the Commissioner of Environment, you must not continue to use a disposal/handling site identified in the Form that (i) has been cited as being in violation of
City Funded XVII. Environmental Requirements 79
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
any environmental law or regulation or of any City ordinance; or (ii) does not have a necessary permit. If only one site was identified in the Form, you must arrange for a substitute disposal/handling site that meets the requirements specified in the Form and provide a revised Form to the Commissioner of Environment. You further acknowledge that any such substitution is at no additional cost to the City, regardless of the reason necessitating such substitution.
Equipment and Environmental Control During Transport
You must haul materials, construction debris, soil and other wastes in vehicles and/or containers complying with all applicable Environmental Laws. All equipment used to transfer materials, construction debris, soil and other wastes must be designed to prevent spillage during the hauling operation. Your equipment must fully comply with all City, State and Federal Regulations, laws and ordinances pertaining to size, load weight, safety and any Environmental Law.
Environmental Control
In performing the Work, you must become thoroughly familiar with all Federal, State, and local statutes, ordinances, and directives with respect to the elimination of excessive noise and pollution of air, water, and soil due to construction and other operations. Attention must be given to reduce the noise of heavy construction equipment and to the control of dust, smoke, and fumes from construction equipment and other operations on the Work site, and the dirt and noise created by heavy truck operations over City streets in accordance with ordinances of the City and orders of the Commissioner. The discharge of Hazardous Materials into waterways and City sewers is not permitted.
Open Dumping Prohibited
The removal of all recyclable material and garbage, refuse or other waste material, including broken concrete, bricks, rock, paving asphalt and incidental debris generated from all construction or demolition activities performed under this Contract, must be transported to a facility that is zoned and permitted to accept the material under Chapter 11-4 of the Municipal Code and all applicable local, State, and Federal regulations.
You must retain bills of lading, manifests, or other confirmatory receipts signed by a representative of accepting facility for each load of material and make them available to the City upon request
Environmental Protection
You must comply with, and must cause your Subcontractors to comply with, all Federal environmental and resource conservation laws and regulations, whether existing or promulgated later, as they apply to this Contract. You must include these provisions in all subcontracts. Some, but not all, of the major Federal laws that may affect this Contract include the National Environmental Policy Act of 1969, as amended, 42 USC §§ 4321 et seq.; the Clean Air Act, as amended, 42 USC §§ 7401 et seq. and scattered sections of 29 USC; the Clean Water Act, as amended, scattered sections of 33 USC and 12 USC; the Resource Conservation and Recovery Act, as amended, 42 USC §§ 6901 et seq.; and the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 USC §§ 9601 et seq You and your Subcontractors must also comply with Executive Order No. 12898, "Federal Actions to Address Environmental Justice in Minority Populations and
City Funded XVII Environmental Requirements
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
Low-Income Populations," 59 Fed. Reg. 7629, Feb. 16, 1994; U.S. DOT statutory requirements on environmental matters at 49 USC § 5324(b); Council on Environmental Quality regulations on compliance with the National Environmental Policy Act of 1969, as amended, 40 CFR Part 1500 et seq.\ and U.S. DOT regulations, "Environmental Impact and Related Procedures," 23 CFR Part 771 and 49 CFR Part 622.
Air Quality. You must comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act, as amended, 42 USC §§ 7401 et seq. Specifically, you must comply with applicable requirements of U.S. EPA regulations, "Conformity to State of Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 USC or the Federal Transit Act," 40 CFR Part 51, Subpart T; and "Determining Conformity of Federal Actions to State or Federal Implementation Plans," 40 CFR Part 93; and National Emission Standards for Hazardous Air Pollutants (NESHAP), 40 CFR § 61.145. You further must report and require each Subcontractor at any tier to report any violation of these requirements resulting from any Contract implementation activity to the City and the appropriate U.S. EPA Regional Office.
Clean Water. You must comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 USC §§ 1251 et seq. You further must report and require each Subcontractor at any tier to report any violation of these requirements resulting from any Contract implementation activity to the City and the appropriate U.S. EPA Regional Office.
List of Violating Facilities. You acknowledge that any facility to be used in the performance of the Contract or to benefit from the Contract must not be listed on the U.S. EPA List of Violating Facilities ("List"), and you must promptly notify the City if you receive any communication from the U.S. EPA that such a facility is. under consideration for inclusion on the List.
Preference for Recycled Products. To the extent practicable and economically feasible and to the extent that it does not reduce or impair the quality of the Work, you must use recycled products in performance of the Contract pursuant to U.S. Environment Protection Agency (U.S. EPA) guidelines at 40 CFR Parts 247-253, which implement section 6002 of the Resource Conservation and Recovery Act, as amended, 42 USC § 6962.
I I. Clean Diesel Fleet: Emissions Reduction (MCC 2-92-595) (where applicable)
If this Contract is for construction, demolition, restoration, repair, renovation, environmental remediation or environmental abatement of any building, structure, tunnel, excavation, roadway, bridge, transit station or parcel of land and the estimated value of this Contract is $2,000,000 or more:
Contractor must comply with the Clean Diesel Contracting Ordinance, MCC Section 2-92-595.
2. Contractor and any Subcontractor(s) must utilize Ultra Low Sulfur Diesel Fuel (ULSD) for any heavy-duty diesel-powered vehicle, non-road vehicle or non-road equipment used in the performance ofthe Contract.
City Funded XVII Environmental Requirements 81
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 20I7)
Contractor and any Subcontractor(s) must minimize idling of motor vehicles and non-road vehicles used in the performance ofthe Contract during periods of inactivity, and must comply with the anti-idling requirements imposed by any applicable federal, state, or local law.
Contractor and any Subcontractor(s), may not use any of the following vehicles and equipment in the performance of the contract:
any heavy-duty diesel vehicle not meeting or exceeding the US EPA's emission standards for heavy-duty diesel vehicles for the 1998 engine model year, unless such vehicle is fitted with a verified diesel emission control retrofit device; or
any non-road vehicle or non-road equipment not meeting or exceeding the US EPA's Tier 1 Non-road Diesel Standards, unless such vehicle or equipment is fitted with a verified diesel emission control retrofit device.
Any heavy-duty diesel vehicles, non-road vehicles and non-road equipment used in the performance of this Contract must incorporate such engine or retrofit technology so that the Contractor, through such engine or retrofit technology used directly by the Contractor and all subcontractors, shall have a minimum of 3.0 clean fleet score per a reporting period, as calculated by using the methodology described in MCC subsection 2-92-595(c)(5). Contractor may exclude from the calculation of the clean fleet score up to fifty percent of all ofthe heavy-duty diesel vehicles, non-road vehicles and non-road equipment used in the performance ofthe contract during a reporting period that are owned or leased by any firm that the CPO has granted a clean fleet score annual waiver certificate pursuant to MCC subsection 2-92-595 (f). However, pursuant to MCC subsection 2-92-595(b)(6), if this contract is advertised after January 1, 2020, the minimum clean fleet score is increased to 4.0, and Contractor may exclude from the calculation up to only twenty five percent of vehicles owned or leased by a firm that has received a clean fleet score waiver certificate instead of fifty percent.
The City may conduct an audit of the Contractor or inspect any vehicle or equipment used in the performance of the Contract to ensure compliance with the requirements specified above. In the event that Contractor or any Subcontractor fails to utilize ULSD or fails to minimize idling or comply with antiidling requirements, Contractor will be subject to liquidated damages of $5,000 per day for each violation and each day of noncompliance will be a separate violation; provided, however, the damages will not exceed $50,000 for any one vehicle or piece of equipment, as specified in MCC Section 2-92-595(e). Such liquidated damages are imposed not as a penalty but as an estimate of the damages that the City will sustain from delay in completion of the project and inspection and other enforcement costs, as well as the resultant damages to the public health of its citizens, which damages by their nature are not capable of precise proof. The City is authorized to withhold and deduct from monies otherwise payable to the contractor the amount of liquidated damages due to the City.
Contractor understands that pursuant to MCC subsection 2-92-595(e)(6), any person knowingly making a false statement of material fact to any City department with respect
City Funded XVII. Environmental Requirements
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
to compliance with the contract provisions specified in MCC subsection 2-92-595(e) Chicago may be fined not less than $1,000 or more than $5,000 for each statement.
XVIII. INSURANCE, INDEMNITY AND BONDS
Indemnity
You must protect, defend, indemnify, and hold the City, its officers, officials, representatives, and employees (collectively the "Indemnitees"), harmless from and against any and all claims, damages, demands, injury or death, in consequence of granting this Contract or arising out of or being in any way connected with your performance under this Contract except for matters shown by final judgment to have been caused by or attributable to the negligence of Indemnitees. This indemnification obligation is effective to the maximum extent permitted by applicable law. This indemnity extends to all legal costs, including attorney fees, costs, liens, judgments, settlements, penalties, professional fees, and other expenses incurred by the City, including fines and penalties imposed by public bodies, and the reasonable settlement of such claims. This indemnification obligation is not limited by any amount of insurance required under this Contract. Further, the indemnification obligation contained in this section will survive the expiration or termination of this Contract.
You will be solely responsible for the defense of any and all claims, demands, or suits against Indemnitees, including claims by your employees, subcontractors, agents, or servants even though the claimant may allege that the Indemnitees were in charge of the Work or alleged negligence on the part of Indemnitees. The City will have the right, at its sole option, to participate in the defense of any such suit, without relieving you of your obligations under this section.
"Injury" or "damage" as these words are used in this section will be construed to include injury or damage consequent upon the failure of or use or misuse by you, your Subcontractors, agents, servants, or employees, of any scaffolding, hoist cranes, stays, ladders, supports, rigging, blocking or any and all other kinds of items of equipment, whether or not they are owned, furnished, or loaned by the Indemnitees.
You will promptly provide, or cause to be provided, to the Commissioner and City Corporation Counsel copies of all notices that you may receive of any claims, actions, or suits that may be given or filed in connection with your performance or the performance of any Subcontractor and for which the Indemnitees are entitled to indemnification under this Contract and to give the Indemnitees authority, information and assistance for the defense of any claim or action.
Contribution
To the extent permissible by law, you waive any limits on your liability that you would otherwise have by virtue of the Worker's Compensation Act or any other related law or judicial decision (such as Kotecki v. Cyclops Welding Corporation, 146 III. 2d 155 (1991)). The City, however, does not waive any limitations it may have on its liability under the Worker's Compensation Act, the Illinois Pension Code or any other statute
Admiralty
City Funded XVII Environmental Requirements
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 20I7)
In addition, you waive the right to receive the benefits of or to invoke the protection afforded by_all maritime statutory limitations of liability, including the Limitation of Vessel Owner's Liability Act, 48 U.S.C. § 183 et seq., that could act to diminish your liability for any harm or damage arising from your performance of your obligations under the Contract in any manner or for all claims or other costs arising from or occasioned by your operations on any waterways, including Lake Michigan and the Chicago River. This provision is not intended to avoid or waive Federal jurisdiction under the applicable admiralty laws. This waiver extends only to the Indemnitees, and not to third parties seeking recovery for claims solely against you.
1. Without limiting your waiver, you specifically consent to pay=all sums in respect of any claims against the Indemnitees and other costs suffered by the Indemnitees arising from or occasioned by your operations in or on waterways, including the following:
Loss or damage to any other ship, vessel or boat caused proximately or otherwise by your vessel, or loss of the cargo or the other ship, vessel or boat;
Loss of life or personal injury, or for any cost of life salvage;
Loss or damage to any harbor, dock, building, graving or otherwise, slipway, pontoon, pier, quay, tunnel, jetty, stage, buoy, cables of any kind, or other fixed or movable object or property whatsoever;
The cost of the removal, raising or destruction of the wreck of any vessel you employ in performing your obligations under the Contract;
If a vessel is disabled or otherwise, the cost of towage or other salvage of any vessel you employ in performing your obligations under the Contract;
Loss or damage to the bottom, banks, or shoreline of the waterway.
D. Performance and Payment Bonds
You must, before award of the Contract, deliver to the Commissioner a performance and payment bond in the amount set forth in the DB Agreement. Any performance bond that you provide must comply with the provisions of 30 ILCS 550/1 et.seq., as amended, and of § 2-92-030 of the Municipal Code, as amended. It must also be in the form of the performance and payment bond form included in the DB Agreement. The surety or sureties issuing the bond must be acceptable to the Comptroller and must have a Best's Key Rating Guide of "B+," Class XI or greater and be listed in the most recently' published "Listing of Approved Sureties" of the U.S. Department of the Treasury Circular 570, with underwriting limitations in excess of the Contract Price. The bond must cover the warranty period ^required by the Contract.
In case of your neglect, failure, or refusal to provide satisfactory sureties when so directed within 10 days after such notification, pursuant to § 2-92-040 of the Municipal Code the Commissioner may declare this Contract forfeit, but such forfeiture will not release you or your surety or sureties from any liability that may have accrued before the date of the forfeiture.
If at any time the surety or sureties, or any one of them, upon the bond become insolvent, or are, in the sole opinion of the Commissioner, unsatisfactory, or unable to respond to
City Funded XVIII. Indemnity, Insurance and Bonds
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 20]7)
damages in case of liability on such bond, the Commissioner will notify you and direct that you furnish a bond issued by a satisfactory surety or sureties forthwith.
E. Insurance
You must procure and maintain at all times, at your own expense, through the completion of the warranty period, the types of insurance specified in the DB Agreement of the Contract, with insurance companies authorized to do business in the State of Illinois, covering all operations under this Contract, whether performed by you or by Subcontractors. Upon written request by the Commissioner, you must allow the Commissioner to review and copy any original insurance policies you are obligated to maintain under this policy.
You waive any and every claim or right of recovery from the City for all injuries and losses arising under this Contract or in any way related to the Work, including any claim for loss of or damage to the Work or to the contents of it, which injury, loss or damage is covered or is required to be covered by valid and collectible insurance policies, to the extent that such injury, loss or damage is recoverable under the insurance policies. As this waiver will preclude the assignment of any claim by subrogation (or otherwise) to an insurance company (or any other person), you must give each insurance company that has issued, or in the future may issue, your policies of insurance, written notice of the terms of this waiver, and to have the insurance policies properly endorsed, if necessary, to prevent the invalidation of insurance coverage by reason of the waiver. You must require each Subcontractor to include similar waivers of subrogation in favor of the City.
The City reserves the right to change, modify or delete insurance requirements set forth in the Contract, including the right to request that you provide additional types of insurance.
XIX. CLAIMS AND DISPUTES
General
Compliance with the provisions in this Article XIX is a precondition to seeking judicial review of an adverse decision of the Chief Procurement Officer. You must not withhold performance of and must prosecute any Work required by the Commissioner while your claim, including judicial resolution, if any, is pending. You must prosecute all of your Work including any disputed Work with the same diligence and effort as if no dispute existed. Neither the Chief Procurement Officer's determination (see Section XIX.C.3 below), nor the continued performance by either party, constitutes an admission as to any factual and/or legal position in connection with the dispute or a waiver of any rights under the Contract.
Claims
This provision applies to all claims under this Contract, including those for time, money, or both.
Procedures. Within 14 days after a basis for claim arises, you must submit your claim in writing to the City's resident engineer or its project manager ("Commissioner's Representative). This written claim to the Commissioner's Representative will constitute "notice" to the City for purposes of determining initial timeliness of the claim; oral notice is insufficient. If you and the Commissioner's Representative are unable promptly
City Funded ,- XVIII Indemnity, Insurance and Bonds
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2.017)
(depending upon the complexity of the matter) to resolve the claim, you must forward your claim in writing to the Commissioner together with the documents listed in (a) through (d) below (collectively, "your documents"). You must include:
A general statement of the basis for the claim,
Reference to the applicable Contract provisions,
All records that support the claim, and
All documents that relate to it, such as correspondence, and that are reasonably necessary for the Commissioner's understanding to resolve the claim.
It is your responsibility to furnish your documents to the Commissioner at the time you forward the claim to him, as, with or without the supporting documentation, the Commissioner has 30 days to respond in writing to you after he has received the claim. Incomplete information may result in an adverse response. The response may be in the form of a contract modification.
If within the 30 days the Commissioner neither responds nor forwards the claim to the Chief Procurement Officer in lieu of responding, the claim will be considered denied, unless you and the Commissioner have agreed to extend the time for him to complete his response. The Commissioner may, at his sole option, forgo the opportunity to respond directly to your claim by referring it with all your documentation and a Request for Resolution of Dispute to the Chief Procurement Officer and supplying such additional documentation as the Chief Procurement Officer may require of him.
C. Disputes
Invoking Dispute Resolution Procedures. If you dispute the Commissioner's resolution or denial of your claim, or if your claim is deemed denied, you have 10 days to forward your claim and your documentation to the Chief Procurement Officer indicating to him that you are requesting resolution of a dispute and showing that you have complied with the preceding claims procedures. Your 10-day period to invoke dispute resolution by the Chief Procurement Officer is counted from the date the Commissioner's written resolution was sent to you, or, if he has not responded or forwarded the claim, from the date on which the time for the Commissioner's response lapsed.
Waiver. If you fail to file a Request for Resolution of Dispute with the Chief Procurement Officer within the 10-day period you will have waived your claim, the right to make the claim later, and the right to dispute its resolution or denial.
Dispute Procedures. Once the dispute resolution procedures are invoked, the Chief Procurement Officer will proceed to a final and binding decision under such rules and regulations as he from time to time promulgates. A copy of those rules and/or regulations is available through the Department of Procurement Services. The Chief Procurement Officer's decision will be implemented through a Contract Modification, if required, that will be made a part of the Contract with your signature or without it should you refuse to sign the Contract Modification. If either you or the Commissioner disagree(s) with the decision of the Chief Procurement Officer, the exclusive remedy is judicial review by a common law writ of certiorari. Unless such review is sought within 35 days of receipt of the Chief Procurement Officer's decision, all rights to seek judicial review are waived.
City Funded XIX Claims and Disputes
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
XX. EVENTS OF DEFAULT AND TERMINATION
CPO Right
The the CPO may, in her sole discretion, exercise the right to send you notice under Sections XX.C.1 or XX.C.2. Whether to declare you in default is within the sole discretion of the CPO and neither that decision nor the factual basis for it is subject to review or challenge under Article XjX, "Claims and Disputes."
If the CPO terminates this Contract under the provisions of Section XX.C.1 or XX.C.2, the Commissioner may use the material and equipment, whether owned or leased, that is within the scope of the Work or necessary for completion of the Work paid for by the City (whether located on or off the Work site), to complete the Work and you will receive no further payment until the Work is completed. If, however, the cost of completion exceeds the unpaid balance of the Contract, you must pay the difference to the City immediately upon demand.
Events of Default
Your failure to perform any of your obligations under the Contract, including one or more of the following, is an event of default:
Failure to begin the Work at the time specified;
Failure to perform the Work with sufficient workers and equipment or with sufficient materials to insure the completion of Work or any part of the Work within the time specified by the Contract;
Failure to perform the Work in accordance with the Contract;
Failure to promptly remove materials, repair, or replace Work that was or were rejected as defective or unsuitable;
Unauthorized discontinuation of the Work;
Insolvency, bankruptcy or assignment for the benefit of creditors that impairs your ability to pay Subcontractors or perform the Work;
Failure to pay Subcontractors or material suppliers;
Failure to carry on the Work in a manner acceptable to the Commissioner;
Failure to observe Federal, State, or local laws or regulations governing safety and security requirements, including all environmental requirements;
Failure to comply with any other term of this Contract that states an event of default or failure to comply with any term of this Contract in any material respect; and
Failure to identify disposal site(s) for materials, construction debris, soil and other wastes or to submit such information when requested by the Commissioner.
Disqualification as a MBE or WBE of the -Contractor or any joint venture partner, subcontractor or supplier if its status as an MBE or WBE was a factor in the award of the Contract and such status was misrepresented by the Contractor.
Failure to notify City of change in information submitted in Contractor's original Economic Disclosure Statement ("EDS") and to submit a new EDS;
Exhibit 19 Construction Terms and Conditions 87
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
Default under any other City contract;
Violation of any City ordinance, even if unrelated to contract performance.
Failure to comply with the Child Support Arrearage Ordinance, § 2-92-415 of the Municipal Code;
C. Remedies
If an event of default occurs, the CPO, at her sole discretion, may send you notice of his intent to exercise remedies pursuant to the following:
Opportunity to Cure: The CPO may provide you the opportunity to cure the default. If she does so, you must cure the default within 10 days after notice is given. If the CPO receives written notification that you have not cured the default within the 10-day cure period, the CPO may at any time after that terminate the Contract, in which event the termination ofthe Contract is final and effective.
Termination: The CPO may terminate the Contract. Written notification of the default and termination of the Contract will be provided to you and the bond company by the Commissioner. The CPO's decision and declaration of termination is final and effective.
In addition to the foregoing, upon an event of default as defined in Section XX.B, "Events of Default," the City may invoke any or all of the following remedies:
The right of set-off against any payments due or to become due to you;
The right to take over and complete the Work, or any part of it, either directly or through others. The City may use your Subcontractors, materials and equipment to complete the Work. If the City notifies you that it is invoking this remedy, all rights you may have in or under your subcontracts are assigned to the City, subject to the City's right to take assignment of all or only selected subcontracts, at the City's discretion. The sole obligation accepted by the City under such subcontracts is to pay for Work satisfactorily performed after the date of the assignment. In the event a conditional assignment has not been executed, you must execute, or cause to be executed, any assignment, agreement, or other document that may be necessary, in the sole opinion of the Corporation Counsel, to evidence or effect compliance with this provision. You must promptly deliver such documents upon the City's request. In the case of any subcontract so assigned and accepted by the City, you remain liable to the Subcontractors for any payment already invoiced to and paid by the City, and for any claim, suit, or cause of action based on or resulting from any error, omission, negligence, fraud, willful or intentionally tortious conduct, or any other act or omission, or breach of Contract, by you, your officers, employees, agents, and other Subcontractors, arising before the date of assignment to the City, when such claim, suit, or cause of action has not been discharged, disposed of, or otherwise resolved as of that date. You must notify your Subcontractors of these requirements;
In the event of termination, all costs and changes incurred by the City, together-with the cost of completing the Work, are deducted from any moneys due or that may become due to you. When the expense incurred by the City exceeds the sum that would have been payable under the Contract, you and the surety are liable and must pay to the City the amount of the excess;
d.
Exhibit 19
The right to terminate the Contract as to any or all of the Work yet to be performed, Construction Terms and Conditions 88
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
e. 1 The right of specific performance, an injunction, or any other appropriate equitable
remedy, as may be applicable;
The right to money damages, including all expert witness or other consultant fees, court costs, and attorneys' fees that the City may incur in connection with any claim, suit, or action based upon, related to, or arising from, directly or indirectly, an event of default under this Contract;
The right to withhold all or any part of yourcompensation;
The right to terminate any or all of any other contracts that you may have with the City; and
i. The right to deem you non-responsible in future contracts to be awarded by the City.
Nonexclusivity of Remedies
The remedies under the terms of this Contract are not intended to be exclusive of any other remedies provided, but each and every such remedy is cumulative and is in addition to any other remedies, existing now or hereafter, at law, or in equity. No delay or omission to exercise any right or power accruing upon any event of default impairs any such right or power, nor constitutes a waiver of any event of default or acquiescence in it, and every such right,and power may be exercised from time to time and as often as may be deemed expedient.
Adjudication of Termination
If the Contract is terminated by the City for cause and it is subsequently determined by a court of competent jurisdiction that the termination was without cause, the termination will thereupon be deemed under Section XX.F, "Early Termination," and the provisions of Section XX.F, "Early Termination," apply.
Early Termination
The City, through the Commissioner, may terminate your Work by written notice stating the effective date of the termination. Immediately upon receipt of the notice, you must provide similar written notice to the affected Subcontractor(s), whereupon you and Subcontractor(s) must, except for services necessary for the orderly termination of the Work.
Stop all Work and% place no further order or subcontracts for materials, services, equipment or supplies;
Assign to the City, in the manner and to the extent directed, all of your rights under Work orders, purchase orders and subcontracts relating to the portion of the Work that has been completed;
Terminate Work orders, purchase orders and subcontracts outstanding to the extent that they relate to the Work and are not assigned to the City;
Take any action necessary to protect property in your possession in which the City has or may acquire an interest; and
Take any other action toward termination of the Work that the City may direct.
If all or a portion of your Work is terminated under this Section, "Early Termination," you are entitled to payment of those costs relating to the completed portion of the Work. No payment will be made for Work not actually performed. Deductions will be made by the
Exhibit 19 Construction Terms and Conditions 89
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2017)
City for any amounts previously paid to you and for any amounts that may be due the City, or that the City may offset or withhold by the terms of this Contract Thus, the City will pay you, subject to the limitations set forth in this Contract, the sum of the following costs:
That portion of the Contract Price related to the Work you completed immediately before notice of termination less the payments for progress or changes previously made; and
Expenses incurred for which you are liable as the result of your termination of respective Work orders, purchase orders or subcontracts related to the notice of termination. The total amount of all payments to you must not, in any event, exceed the proportion that the Work actually performed (including materials delivered to the Project site minus credits for returned goods or canceled orders) at the date of termination bears to the entire Work to be performed under this Contract. Any payment to you under this subsection will be made in accordance with the provisions of Article XIII, "Payments."
3. After receipt of a notice of termination under this Section XX.F, "Early Terminations," you must submit to the Commissioner your final invoice in the form required, with supporting documentation. The Commissioner may require certified payrolls, receipts and other proof of expenditures. The final invoice must be submitted promptly, but in no event more than 60 days after the effective date of termination. Failure to submit the final invoice within 60 days after the effective date of termination constitutes a waiver of the' final invoice.
G. Non-Appropriation
If no funds or insufficient funds are appropriated and budgeted in any fiscal period of the City for payments to be made under this Contract, then the City will notify you of that occurrence and this Contract will terminate on the earlier of the last day of the fiscal period for which sufficient appropriation was made or whenever the funds appropriated for payment under this .Contract are exhausted. No payments will be made to you under this Contract beyond those amounts appropriated and budgeted by the City to fund payments under it.
Exhibit 19 Construction Terms and Conditions
XXI. COMPLIANCE WITH ALL LAWS
A. Contractor Must Comply with All Laws
Contractor must observe and comply with all Applicable Laws, in effect now or later and whether or not they appear in the Agreement, including those specifically referenced herein or in any of the Contract Documents. Contractor must pay all taxes and obtain all licenses, certificates and other authorizations required in connection with the performance of its obligations hereunder, and Contractor must require all subcontractors to do so. Contractor is fully responsible for ascertaining and complying with all agency and code requirements applicable to the Work.
By entering into this Contract with the City, Contractor certifies to the best of its knowledge and belief that it, its principals and any subcontractors used in the performance of this contract, meet City requirements and have not violated any City or sister agency policy, codes, state, federal, or local laws, rules or regulations and have not been subject to any debarment, suspension or other disciplinary action by any government agency. Additionally, if at any time the contractor becomes aware of such information, it must immediately disclose it to the City.
B. Civil Rights Act of 1964, Title VI, Compliance With Nondiscrimination Requirements
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows:
1. Compliance with Federal Nondiscrimination Requirements The contractor will comply with federal nondiscrimination laws, regulations, and authorities, as they may be amended from time to time (Acts and Regulations), which include:
Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin);
49 CFR part 21 (Non-discrimination In Federally-Assisted Programs of The Department of Transportation—Effectuation of Title VI of The Civil Rights Act of 1964);
Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR part 27;
The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);
The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
Titles II and III of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 - 12189) as implemented by Department of Transportation regulations at 49 CFR parts 37 and 38;
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lune 201 7 i
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;
Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination under Title VI includes discrimination because of limited English proficiency (LEP). (70 Fed. Reg. at 74087 to 74100);
Title IX of the Education Amendments of 1972, as amended, prohibits discrimination because of sex in education programs or activities (20 U.S.C. 1681 et seq);
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, religion, color, national origin, or sex in any activity carried out with a grant from the FAA).
Non-discrimination
The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21 (Nondiscrimination in Federally-Assisted Programs of the US Department of Transportation).
Solicitations for Subcontracts, Including Procurements of Materials and Equipment
In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin.
Information and Reports
The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or applicable federal agency (e.g Federal Aviation Administration, Federal Highway Administration, Federal Transit Authority, Transportation Security Administration, Department of Housing and Urban Development, etc.) providing funding to the City department(s) on this contract to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 701 7)
the sponsor or the federal agency, as appropriate, and will set forth what efforts it has made to obtain the information.
Sanctions for Noncompliance
In the event of a contractor's noncompliance with the Non-discrimination provisions of this contract, the City will impose such contract sanctions as it or the relevant federal funding agency may determine to be appropriate, including, but not limited to:
Withholding payments to the contractor under the contract until the contractor complies; and/or
Cancelling, terminating, or suspending a contract, in whole or in part.
Incorporation of Provisions
The contractor will include the provisions of above paragraphs 1, "Compliance With Regulations" through 6 "Incorporation of Provisions" in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the sponsor or the applicable federal agency may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the sponsor to enter into any litigation to protect the interests of the sponsor. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States.
Other Non-Discrimination Requirements
Illinois Human Rights Act
Contractor must comply with the Illinois Human Rights Act, 775ILCS 5/1-1 01 et seq., as amended and any rules and regulations promulgated in accordance therewith, including, but not limited to the Equal Employment Opportunity Clause, 445 III. Admin. Code 750 Appendix A.
Contractor must comply with the Public Works Employment Discrimination Act, 775 ILCS 10/0.01 et seq., as amended; and all other applicable state laws, rules, regulations and executive orders.
Chicago Human Rights Ordinance MCC Ch. 2-160
Contractor must comply with the Chicago Human Rights Ordinance, MCC Ch. 2-160, Sect. 2-160-010 et seq., as amended; and all other applicable municipal code provisions, rules, regulations and executive orders.
Contractor must furnish or shall cause each of its Subcontractors to furnish such reports and information as requested by the Chicago Commission on Human Relations.
State of Illinois Equal Employment Opportunity Clause
In the event ofthe Contractor's non-compliance with the provisions of this Equal Employment Opportunity Clause or the Illinois Human Rights Act, the Contractor may be declared ineligible for future contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations, and the contract may be cancelled or voided in whole or in part, and other sanctions or penalties may be imposed or remedies invoked as provided by statute or regulation. During the performance of this contract, the Contractor agrees as follows:
A) That Contractor will not discriminate against any employee or applicant for i__ employment because of race, color, religion, sex, sexual orientation, marital status, order of protection status, national origin or ancestry, citizenship status, age, physical
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Keviseil June 201 7)
or mental disability unrelated to ability, military status or an unfavorable discharge from military service; and, further, that he or she will examine all job classifications to determine if minority persons or women are underutilized and will take appropriate affirmative action to rectify any underutilization.
That, if Contractor hires additional employees in order to perform this contract or any portion of this contract, Contractor will determine the availability (in accordance with 44 III. Admin. Code Part 750) of minorities and women in the areas from which Contractor may reasonably recruit and Contractor will hire for each job classification for which employees are hired in a way that minorities and women are not underutilized.
That, in all solicitations or advertisements for employees placed Contractor or on Contractor's behalf, Contractor will state that all applicants will be afforded equal opportunity without discrimination because of race, color, religion, sex, sexual orientation, marital status, order of protection status, national origin or ancestry, citizenship status, age, physical or mental disability unrelated to ability, military status or an unfavorable discharge from military service.
That Contractor will send to each labor organization or representative of workers with which Contractor has or is bound by a collective bargaining or other agreement or understanding, a notice advising the labor organization or representative ofthe Contractor's obligations under the Illinois Human Rights Act and 44 III. Admin. Code Part 750. If any labor organization or representative fails or refuses to cooperate with the Contractor in Contractor's efforts to comply with the Act and this Part, the Contractor will promptly notify the Illinois Department of Human Rights and the City and will recruit employees from other sources when necessary to fulfill its obligations under the contract.
That Contractor will submit reports as required by 44 III. Admin. Code Part 750, furnish all relevant information as may from time to time be requested by the Illinois Department of Human Rights or the City, and in all respects comply with the Illinois Human Rights Act and 44 III. Admin. Code Part 750.
That Contractor will permit access to all relevant books, records, accounts and work sites by personnel ofthe City and the Illinois Department of Human Rights for purposes of investigation to ascertain compliance with the Illinois Human Rights Act and the Illinois Department of Human Rights's Rules and Regulations.
That Contractor will include verbatim or by reference the provisions of this clause in every subcontract awarded under which any portion of the contract obligations are undertaken or assumed, so that the provisions will be binding upon the subcontractor. In the same manner as with other provisions of this contract, the Contractor will be liable for compliance with applicable provisions of this clause by subcontractors; and further it will promptly notify the City and the Illinois Department of Human Rights in the event any subcontractor fails or refuses to comply with the provisions. In addition, the Contractor will not utilize any subcontractor declared by the Illinois Human Rights Commission to be ineligible for contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations.
C. Business Relationships with Elected Officials
Pursuant to MCC Sect. 2-156-030(b), it is illegal for any elected official, or any person acting at the direction of such official, to contact either orally or in writing any other City official or employee with respect to any matter involving any person with whom the elected official has
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
any business relationship that creates a financial interest on the part of the official, or the domestic partner or spouse of the official, or from whom or which he has derived any income or compensation during the preceding twelve months or from whom or which he reasonably expects to derive any income or compensation in the following twelve months. In addition, no elected official may participate in any discussion in any City Council committee hearing or in any City Council meeting or vote on any matter involving the person with whom the elected official has any business relationship that creates a financial interest on the part of the official, or the domestic partner or spouse of the official, or from whom or which he has derived any income or compensation during the preceding twelve months or from whom or which he reasonably expects to derive any income or compensation in the following twelve months. Violation of MCC Sect. 2-156-030 by any elected official with respect to this contract will be grounds for termination of this contract. The term financial interest is defined as set forth in MCC Chapter 2-156.
Chicago Inspector and Legislative Inspector General
As required by § 2-56 of the Municipal Code, it is the duty of every Contractor, all subcontractors, every applicant for certification of eligibility for a City contract or program, and all officers, directors, agents, partners and employees of any bidder, Contractor, subcontractor or such applicant to cooperate with the Inspector General in any investigation or hearing undertaken pursuant to Chapter 2-56 of the Municipal Code. Contractor must abide by all provisions of Chapter 2-56 of the Municipal Code. All subcontracts must inform subcontractors ofthe provision and require understanding and compliance.
Governmental Ethics Ordinance
As required by § 2-156-120 of the Municipal Code, no payment, gratuity or offer of employment shall be made in connection with any city contract, by or on behalf of a subcontractor to the prime contractor or higher-tier subcontractor or any person associated therewith, as an inducement for the award of a subcontract or order.
False Statements
False statements made in connection with this Agreement, including statements in, omissions from and failures to timely update the EDS, as well as in any other affidavits, statements or contract documents constitute a material breach of the Agreement (each a "Disclosure Misrepresentation"). Any such Disclosure Misrepresentation renders the Agreement voidable at the option of the City, notwithstanding any prior review or acceptance by the City of any materials containing a Disclosure.Misrepresentation. In addition, the City may debar Contractor, assert any contract claims or seek other civil or criminal remedies as a result of a Disclosure Misrepresentation (including costs of replacing a terminated Contractor pursuant to Chicago Municipal Ordinance 1-21-010.
Americans with Disabilities Act
Contractor must perform all construction or alteration that Contractor undertakes in connection with this Contract in compliance with all federal, state and local laws and regulations regarding accessibility standards for disabled or environmentally limited persons including: Americans with Disabilities Act, P.L 101-336 (1990) and the Uniform Federal Accessibility Standards ("UFAS") or the American with Disabilities Act ("ADA") and; the Illinois Environmental Barriers Act, 410 ILCS 25/1 et seq. (1991), and the regulations promulgated with them. If the above cited standards are inconsistent, Contractor must comply with the standard providing greater accessibility.
I I. MacBride Principles Ordinance
If the Contractor conducts any business operations in Northern Ireland, it is hereby required that the contractor shall make all reasonable and good faith efforts to conduct any business
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 20!7)
operations in Northern Ireland in accordance with the MacBride Principles for Northern Ireland as defined in Illinois Public Act 85-1390 (1988 III. Law 3220).
I. Prohibition on Certain Contributions - Mayoral Executive Order No. 201 1-4
During the Term of this Agreement, or during any period when an extension of this Agreement is being sought or negotiated, neither the Contractor nor any party with a beneficial interest or ownership interest in the Contractor of more than 7.5%, nor any subcontractor of the Contractor or any owner of a subcontractor with more than 7.5% interest in the subcontractor, nor any person with a familial or domestic relationship, including domestic partners, with any of the above may make themselves, may coerce or compel any employee to make or reimburse any employee for any amount, or otherwise participate in the solicitation of amounts contributed to the Mayor or to the Mayor's political fundraising committee.
Contractor's violation of Mayoral Executive Order No. 2011-4 constitutes an Event of Default for which no opportunity to cure will be granted. Such breach and default entitles the City to all remedies (including without limitation termination for default) under this Agreement, under Other Contract, at law and in equity.
J. Licensing of General Contractors
Important: The failure to comply with the provisions of Chapter 4-36 of the Municipal Code ("Chapter 4-36") may result in ineligibility to bid, inability to perform (or continue) to work, imposition of substantial fines, and/or in the City's revoking the Bidder's "general contractor" license. Information about Chapter 4-36 and application forms are available on the City's website, www.cityofchicago.org .
As stated elsewhere in the specification, the City reserves the right to reject any or all bids.
Contractor must be in compliance with the requirements of Chapter 4-36, in the appropriate license class commensurate with the size of this project, if the license is required for the scope of work, at the time the contract is awarded a contract, throughout the term of the contract.
Contractor's failure to be licensed as a "general contractor" at all times throughout the term of the contract, if the license is required for the scope of work, is an event of default under the Agreement and the City may exercise any and all rights and remedies permitted under the contract, at law, or in equity.
K. Buy America
Contractor must ensure that, to the extent applicable, Work provided under this Contract complies with any Buy America provisions of the federal government and/or any similar provisions of the State or City.
L. Steel Products
Unless otherwise provided in the Steel Products Procurement Act, 30 ILCS 565/1 et seq., steel products used or supplied in the performance of this contract or any subcontract to this contract must be manufactured or produced in the United States. Knowing violation of this law may result in the filing and prosecution of a complaint by the Attorney General of the State of Illinois and will subject violators to a fine of the greater of $5,000 or the payment price received as a result of such violation.
M. Wastes
As required by § 11-4-1600(e) ofthe Municipal Code, violation of §§ 7-28-390 Dumping on public way; 7-28-440 Dumping on real estate without permit, 11-4-1410 Disposal in waters
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
prohibited; 11-4-1420 Ballast tank, bilge tank or other discharge; 11-4-1450 Gas manufacturing residue; 11-4-1500 Treatment and disposal of solid or liquid waste; 11-4-1530 Compliance with rules and regulations required; 11-4-1550 Operational requirements; and 11-4-1560 Screening requirements by the Contractor or any subcontractor during the term of the Agreement, whether or not in the performance of the Agreement, constitutes an event of default. Non-compliance with these terms and conditions may be used by the City as grounds for the termination of the Agreement, and may further affect Contractor's eligibility for future contract awards. The opportunity to cure, if curable, will be granted only at the sole discretion of the Commissioner. Such breach and default entitles the City to all remedies under the Contract, at law or in equity.
N. Duty to Report Corrupt Activity
Pursuant to MCC 2-156-018, it is the duty of the Contractor to report to the Inspector General, directly and without undue delay, any and all information concerning conduct which it knows to involve corrupt activity. "Corrupt activity" means any conduct set forth in Subparagraph (a)(1), (2) or (3) of Section 1-23-020 of the MCC. Knowing failure to make such a report will be an event of default under this Contract. Reports may be made to the Inspector General's toll free hotline, 866-IG-TIPLINE (866-448-4754).
O. Equal Pay
The Contractor will comply with all applicable provisions of the Equal Pay Act of 1963, 29 U.S.C. 206(d) and the Illinois Equal Pay Act of 2003, 820 ILCS 112/1, et seq., as amended, and all applicable related rules and regulations including but not limited to those set forth in 29 CFR Part 1620 and 56 III. Adm. Code Part 320.
P. 2014 Hiring Plan Prohibitions
The City is subject to the June 16, 2014 "City of Chicago Hiring Plan" (the "2014 City Hiring Plan") entered in Shakman v. Democratic Organization of Cook County, Case No 69 C 2145 (United States District Court for the Northern District of Illinois). Among other things, the 2014 City Hiring Plan prohibits the City from hiring persons as governmental employees in non-exempt positions on the basis of political reasons or factors.
Contractor is aware that City policy prohibits City employees from directing any individual to apply for a position with Contractor, either as an employee or as a subcontractor, and from directing Contractor to hire an individual as an employee or as a Subcontractor. Accordingly, Contractor must follow its own hiring and contracting procedures, without being influenced by City employees. Any and all personnel provided by Contractor under this Contract are employees or Subcontractors of Contractor, not employees of the City of Chicago. This Contract is not intended to and does not constitute, create, give rise to, or otherwises recognize an employer-employee relationship of any kind between the City and any personnel provided by Contractor.
Contractor will not condition, base, or knowingly prejudice or affect any term or aspect of the employment of any personnel provided under this Contract, or offer employment to any individual to provide services under this Contract, based upon or because of any political reason or factor, including, without limitation, any individual's political affiliation, membership in a political organization or party, political support or activity, political financial contributions, promises of such political support, activity or financial contributions, or such individual's political sponsorship or recommendation. For purposes of this Contract, a political organization or party is an identifiable group or entity that has as its primary purpose the support of or opposition to candidates for elected public office.
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 201 7)
Individual political activities are the activities of individual persons in support of or in opposition to political organizations or parties or candidates for elected public office.
4. In the event of any communication to Contractor by a City employee or City official in violation of paragraph 2 above, or advocating a violation of paragraph 3 above, Contractor will, as soon as is reasonably practicable, report such communication to the Hiring Oversight Section of the City's Office of the Inspector General, and also to the head of the relevant City Department utilizing services provided under this Contract. Contractor will also cooperate with any inquiries by OIG Hiring Oversight.
Q. Contractor's liability - Safety barriers and lights
Whenever any work or improvement shall require the digging up, use, or occupancy of any public way or other public place in the city, substantial covenants requiring such Contractor to put up and maintain such barriers and lights during the night time as will effectually prevent the happening of any accident for which the City might be liable in consequence of such digging up, use, or occupancy of any public way or other public place, shall be inserted in the contract and also such other covenants and conditions as experience may prove necessary to save the City harmless from damages. The Commissioner shall also provide in such contract that the party contracting with the City shall be liable for all damages occasioned by the digging up, use, or occupancy of such public way or other public place, or which may result therefrom.
R. Electronic Mail Communication
Electronic mail communication between Contractor and City employees must relate only to business matters between Contractor and the City.
S. Disclosure of Ownership Interest in Entities (Electronic Disclosure Statement)
The Contractbr understands and will abide by the terms of Section 2-154-020 of the Municipal Code of Chicago regarding disclosure of ownership interest in entities.
T. EDS Update Obligation
Contractor is required to notify the City and update the EDS whenever there is a change in circumstances that makes any certification or information provided in an EDS inaccurate, obsolete or misleading. Failure to notify the City and update the EDS is grounds for declaring the Contractor in default, termination of the Contract for default, and declaring that the Contractor is ineligible for future contracts.
U. Wheel Tax (City Sticker)
Contractor must pay all Wheel Tax required by Chapter 3-56 of the MCC, as amended from time to time. Contractor should take particular notice of MCC 3-56-020 and MCC 3-56-125 which relate to payment of the tax for vehicles that are used on City streets or on City property by City residents. For the purposes of Chapter 3-56, any business that owns, leases or otherwise controls a place of business within the City wherein motor vehicles or semi-trailers are stored, repaired, serviced, or loaded or unloaded in connection with the business is also considered to be a City resident.
V. Safety Enhancing Vehicle Equipment Contracting (MCC 2-92-597) 1. Definitions
For purposes of this section, the following definitions shall apply:
"Commissioner of 2FM" means the City's Commissioner of Fleet and Facility Management.
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Ki.-visi.-cl June 20]7)
"Conventional cab" means a large vehicle configuration in which the driver is behind the front axle and the engine is in front of the axle under a discrete hood.
"Convex mirrors" means wide-angle mirrors that enable the operator of a large vehicle to see along the left and right sides of the vehicle by allowing a view of all points on an imaginary horizontal line which is: (i) three feet above the road; and (ii) one foot outside the plane defined by the outer face of the wheels.
"Crossover mirror" means a fender-mounted or hood-mounted mirror that enables the operator of a large vehicle with a conventional cab to see: (i) any person or object at least three feet tall passing one foot in front of the vehicle; and (ii) the area from the front bumper to where direct vision is possible.
"Large vehicle" means any motor vehicle with a gross vehicle weight rating exceeding 10,000 pounds, except an ambulance, fire apparatus, low-speed vehicle with maximum speed under 15 mph, or agricultural tractor.
"Lateral protective device" or "vehicle side guard" means an apparatus installed between the front and rear wheels of a large vehicle that is designed to prevent road users from falling underneath the vehicle.
"Subcontractor" means any person that enters into any tier subcontract to perform work on this Contract.
"Volpe side guard standard" means the United States Department of Transportation's Volpe side guard standard published and referred to as US DOT Standard DOT-VNTSC-OSTR-16-05, as amended; or a functionally equivalent national vehicle side guard standard, as determined by the Commissioner of 2FM.
Safety Enhancing Requirements
Contractor and any Subcontractor must comply with MCC 2-92-597. Contractor and any Subcontractor must retrofit large vehicles used in the performance of the contract, in accordance with the Phase-In Period provided below, with:
Lateral protective devices. This requirement shall be considered satisfied if: (i) the vehicle is equipped with vehicle side guards in accordance with the requirements of the Volpe side guard standard; or (ii) the vehicle is so designed or equipped at the side that, by virtue of its shape and characteristics, its component parts can be regarded as replacing or functioning as vehicle side guards in accordance with the Volpe side guard standard; or (iii) the vehicle cannot be retrofitted with lateral protective devices as attested by the contractor or the subcontractor in a statement accompanied by certification from two manufacturers of such
devices. -
Left and right side convex mirrors; and
At least one crossover mirror on the passenger side.
Phase-In Period
Except when a Contractor or a Subcontractor is granted a waiver pursuant to MCC 2-92-597(g), the Safety Enhancing Requirements set forth above shall apply to:
(A) one-fourth of a Contractor's or a Subcontractor's large vehicles used in
the performance of the Contract on or after July 1, 2018 but before July 1, 2019;
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(RuvisaJ lunc 201 7)
one-half of a Contractor's or a Subcontractor's large vehicles used in the performance of the Contract on or after July 1, 2019 but before July 1, 2020;
three-fourths of a Contractor's or a Subcontractor's large vehicles used in the performance of the Contract on or after July 1, 2020 but before July 1, 2021;
all of a Contractor's or a Subcontractor's large vehicles used in the performance of the Contract on or after July 1, 2021.
Compliance
Contractor shall submit a written compliance plan to the Commissioner of 2FM with respect to compliance with MCC 2-92-597 within 14 days following the notice to proceed or the placing of the first order under the contract, as applicable.
Every twelve-month period following the notice to proceed or the placing of the first order under the contract, as applicable, or when requested by the Commissioner of 2FM, the contractor must submit to the Commissioner of 2FM, in a form and manner provided by the CPO, a report that includes the following:
the number of large vehicles used in the performance of the Contract by the Contractor and any Subcontractor;
the number of large vehicles used in the performance of the Contract by the Contractor and any Subcontractor that are retrofitted with safety enhancing equipment as required as specified above and MCC 2-92-597(b);
one or more photographs of each large vehicle used in the performance of the Contract by the Contractor and any Subcontractor that is retrofitted with required safety enhancing equipment as specified above and set forth in MCC 2-92-597(b). The photographs must show the large vehicle's license plate number with the safety enhancing equipment fitted on the vehicle; and
a certification that the Contractor and any Subcontractor in the contract have met the requirements MCC 2-92-597 and the terms ofthe contract specified pursuant to that section.
Time Extension and Annual Waiver Requests
Upon a written request, accompanied by a compliance plan, of a Contractor or Subcontractor of a Contract entered on or before December 31, 2018, the CPO, in consultation with the Department, may grant a time extension of not more than six months for compliance with the requirements of MCC 2-92-597 with regard to the Contract.
Contractor and any Subcontractors may apply to the CPO for an annual waiver from the requirements of MCC 2-92-597. See MCC 2-92-597(g).
Costs
All costs that the contractor or any subcontractor may incur to comply with contract requirements imposed pursuant to this section are incidental to the overall contract. No additional time or monies shall be granted to the contractor for compliance with these requirements.
Enforcement
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Rcvisal lunc 20I7.I
The CPO or Commissioner is authorized to inspect or to have inspected any large vehicle used in the performance of this Contract in order to ensure compliance with Safety Enhancing Equipment requirements and MCC 2-92-597.
In addition to other remedies provided by law or specified in the Contract, any person who knowingly makes a false statement of material fact to any city agency with respect to compliance with any contract requirements specified pursuant to MCC 2-92-597 or rules promulgated thereunder shall be fined not less than $ 1,000.00 nor more than $5,000.00 for each such false statement. For purposes of MCC 2-92-597, a person knowingly makes a false statement of material fact when such person makes a false statement of material feet as provided in subsection (d) of Section 1-21-010.
W. Policy Prohibiting Sexual Harassment (Section 2-92-612 ofthe Chicago Municipal Code) This section applies if this Contract was advertised on or after June 30, 2018.
For purposes of this section, the following definitions shall apply:
"Contract" means any contract, purchase order, construction project, or other agreement (other than a delegate agency contract or lease of real property or collective bargaining agreement) awarded by the city and whose cost is to be paid from funds belonging to or administered by the city.
"Contractor" means the person to whom a contract is awarded.
"Sexual harassment" means any unwelcome sexual advances or requests for sexual favors or conduct of a sexual nature when (i) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or (ii) submission to or rejection of such conduct by an individual is used as the basis for any employment decision affecting the individual; or (iii) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
"Subcontractor" means any person that enters into a contract with a contractor to perform work on a contract.
As a condition of contract award, Contractor shall, as prescribed by the Chief Procurement Officer, attest by affidavit that Contractor has a written policy prohibiting sexual harassment that shall include, at a minimum, the following information: (i) the illegality, of sexual harassment; (ii) the definition of sexual harassment; and (iii) the legal recourse available for victims of sexual harassment. Contractor's affidavit is included in Book 2 in the form titled "Sexual Harassment Policy Affidavit".
Contractor's failure to have a written policy prohibiting sexual harassment as provided above shall constitute an event of default. In the event of default, the Chief Procurement Officer shall notify Contractor of such noncompliance and may, as appropriate: (i) issue Contractor an opportunity to cure consistent with the default provisions in this Agreement; (ii) terminate the contract; or (iii) take any other action consistent with the default provisions in the contract. This section shall not be construed to prohibit the City from prosecuting any person who knowingly makes a false statement of material fact to the city pursuant to Chapter 1-21 of this Code, or from availing itself of any other remedies under contract or law.
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised .lime 201 7)
X. Policy on Non-Disclosure of Salary History (Section 2-92-385 ofthe Chicago Municipal Code)
For purposes of this section, the following definitions shall apply:
"Contract" means any Agreement or transaction pursuant to which a contractor (i) receives City funds in consideration for services, work or goods provided or rendered, including contracts for legal or other professional services, or (ii) pays the City money in consideration for a license, grant or concession allowing it to conduct a business on City premises, and includes any contracts not awarded or processed by the Department of Procurement Services.
"Contractor" means the person to whom a contract is awarded.
As a condition of contract award, Contractor shall, as prescribed by the Chief Procurement Officer, attest by affidavit that Contractor has a policy that conforms to the following requirements:
Contractor shall not screen job applicants based on their wage or salary history, including by requiring that an applicant's prior wages, including benefits or other compensation, satisfy minimum or maximum criteria; or by requesting or requiring an applicant to disclose prior wages or salary, either (i) as a condition of being interviewed, (ii) as a condition of continuing to be considered for an offer of employment, (iii) as a condition of an offer of employment or an offer of compensation, or (iv) as a condition of employment
Contractor shall not seek an applicant's wage or salary history, including benefits or other compensation, from any current or former employer.
Contractor's affidavit is included in Appendix C to Contractor's Economic Disclosure Statement.
If Contractor violates the above requirements, Contractor may be deemed ineligible to contract with the City; any contract, extension, or renewal thereof awarded in violation of the above requirements may be voidable at the option of the City. Provided, however, that upon a finding of a violation by Contractor, no contract shall be voided, terminated, or revoked without consideration by the Chief Procurement Officer of such action's impact on the Contractor's MBE or WBE subcontractors.
Y. Deemed Inclusion
Provisions required by Applicable Law to be inserted in the Agreement are deemed inserted in the Agreement whether or not they appear in the Agreement or, upon application by either party, the Agreement will be amended to make the insertion; however, in no event will the failure to insert the provisions before or after the Agreement is signed prevent its enforcement.
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised June 2u I 7)
XXII.' MISCELLANEOUS
Counterparts
This Contract is comprised of several identical counterparts, each to be fully executed by the parties and each to be deemed an original having identical legal effect.
Modifications
No changes, modifications, cancellation, or discharge of this Contract, or any part of it, is valid unless in writing and signed by the parties to it, or their respective successors and assigns.
No Waiver of Legal Rights
The City will not be precluded or estopped from showing the true amount and character of the Work performed and materials furnished by you, or from showing that any measurement, estimate, or certificate is untrue or incorrectly made, or that the Work or materials do not conform in fact to the Contract. The City will not be precluded or estopped from recovering from you and your sureties such damages as the City may sustain by reason of your failure to comply with the terms of the Contract.
Neither the acceptance by the City, or any representative of the City, nor any payment for or acceptance of the whole or any part of the Work, nor any extension of time, nor any possession'taken by the City, will operate as a waiver by the City of any portion of the Contract, or of any power reserved in it or any right of the City to damages provided in it. A waiver of any breach of the Contract does not constitute a waiver of any other or subsequent breach.
Miscellaneous Provisions: Whenever under this Contract, the City by a proper authority waives your performance in any respect or waives a requirement or condition to either the City's or your performance, the waiver so granted, whether express or implied, only applies to the particular instance and is not deemed a waiver forever or for subsequent instance of the performance, requirement, or condition. No such waiver may be construed as a modification of this Contract regardless of the number of times the City may have waived the performance, requirement, or condition.
Governing Law
This Contract is governed in accordance with the laws of the State of Illinois without regard to choice of law principles. You irrevocably submit, and will cause your Subcontractors to submit, to the original jurisdiction of those State or Federal courts located within the County of.Cook, State of Illinois, with regard to any controversy arising out of, relating to, or in any way concerning the execution or performance of this Contract. You consent to service of process on you, at the option of the City, either by registered or certified mail addressed to the applicable office as provided for in this Contract, by registered or certified mail addressed to the office actually maintained by you, or by personal delivery on any of your officers, directors, or managing or general agents.
Consent to Service of Process and Jurisdiction
All judicial proceedings brought against you with respect to this Contract may be brought in (i) any court of the State of Illinois of competent jurisdiction; and (ii) any Federal court of competent jurisdiction located within the boundaries of the Federal court district of the Northern District of Illinois, and by execution and delivery of this Contract, you accept, for yourself and in connection with your properties, generally and unconditionally, the exclusive jurisdiction of those courts, and irrevocably agree to be bound by any final judgment
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Rcvisoil Inne 201 7)
rendered by them from which no appeal has been taken or is available. You designate and appoint the representative identified on the signature page to this Contract under the heading "Designation of Agent for Service Process" as your agent in Chicago, Illinois to receive on your behalf service of all process in any such proceedings in the court (which representative must be available to receive the service at all times), the service being acknowledged by the representative to effective and binding service in every respect. The agent may be changed only upon the giving of written notice by you to the City of the name and address of a new Agent for Service of Process who works within the geographical boundaries of the City of Chicago and is retained or employed by you. You irrevocably waive any objection (including any objection of the laying of venue or based on the grounds of forum non conveniens) which you may now or later have to bring any action or proceeding with respect to this Contract in the jurisdiction set forth above. Nothing in this section affects the right to serve process in any other manner permitted by law or limits the right ofthe City to bring proceedings against you in the courts of any other jurisdiction.
Contractor Cooperation
You must act in good faith in the performance of this Contract and co-operate with the City and any other City contractors at the site to assure timely completion of the Work. You must implement such measures as may be necessary to ensure that your staff and your Subcontractors are bound by the provisions of this Contract.
Joint and Several Liability
If you, or your successors or assigns, if any, are comprised of more than one individual or other legal entity (or a combination of them), then each and every obligation or undertaking stated in this Contract that you are to fulfill or perform is the joint and several obligation or undertaking of each such individual or other legal entity.
No Third Party Beneficiaries
Except as may otherwise be provided in this Contract, this Contract is solely for the benefit of the parties and nothing in this Contract is intended to create any third party beneficiary rights for Subcontractors or other third parties.
I. Notices
Notices, unless expressly provided for otherwise in this Contract, must be in writing and must be delivered personally or by placing in the United States mail, first class and certified, return receipt requested, with postage prepaid and addressed as follows:
If to the City: Commissioner of Fleet and Facility Management,
With Copies to: The Chief Procurement Officer, City Hall, 121 North LaSalle, Room 403, Chicago, IL 60602;
If to you: The address identified in the DB Agreement; and
With Copies to: Your bonding company.
Notices delivered by mail are deemed effective three days after mailing in accordance with this Section. Notices delivered personally are deemed effective upon receipt. Refusal to accept notice has the same effect as if notice were delivered. The addresses stated in this Contract may be revised without need for modification or amendment of this Contract, as long as written notification is given in accordance with this Section.
J. Authority
1. Contractor: Your execution of this Contract is authorized and signature(s) of each person signing on your behalf has been made with complete and full authority to commit you to all terms and conditions of this Contract, including every representation, certification, and
Exhibit 19 Construction Terms and Conditions
Department of Fleet and Facility Management Terms and Conditions for Construction Contract - Book 1
(Revised lime 2017)
warranty contained in it, attached to it and collectively incorporated by reference in it, or that may be required by the terms and conditions of this Contract. If other than a sole proprietorship, you must provide satisfactory evidence that the execution of the Contract is authorized in accordance with the business entities rules and procedures.
2. Consents and Approvals: Unless otherwise expressly stated in this Contract, any consents and approvals to be given by the City are made by the Commissioner.
K. Software License Agreements
The City reserves the right to negotiate software license agreements directly with the software supplier.
Exhibit 19 Construction Terms and Conditions
CHICAGO, March 13,2019
To the President and Members of the City Council:
Your Committee on the Budget and Government Operations, having had under consideration an Ordinance authorizing the execution of a Design-Build agreement with AECOM Constructors Chicago necessary for the Joint Public Safety Facility to be located at 4301 West Chicago Avenue ; and having been presented with a proposed substitute Ordinance by the Department of Fleet and Facility Management, and having had the same under advisement, begs leave to report and recommend that Your Honorable Body pass the Substitute Ordinance transmitted herewith.
This recommendation was concurred in by a viva voce vote ofthe members of the Committee.
Aldermen Scott Waguesback (32), Ameya Pawar (47) and George Cardenas (12) asked To be recorded as voting NAY on the Substitute Ordinance.
Carrie M. Austin Chairman