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HomeMy WebLinkAboutCrown Park Phase 1 & 2 Environmental Site AssessmentN 1. i"m City of Evanston PROFESSIONAL CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF EVANSTON (OWNER) AND ENVIRONMENTAL PROTECTION INDUSTRIES (PROFESSIONAL CONSULTANT) This is a Professional Consulting Services Agreement between the City of Evanston hereinafter called "Owner" and Environmental Protection Industries hereinafter called "Professional Consultant" to provide consultant services to the Owner. The Owner proposes a Phase I Environmental Site Assessment (ESA), Phase II ESA and preliminary geotechnical investigation at Crown Park as follows: The Professional Consultant services will be performed for the Owner who is located at 2100 Ridge Avenue, Evanston, Illinois. The Professional Consultant's services will be completed within three (3) months from the date of Notice to Proceed from the Owner. Compensation for all Basic Services provided by the Professional Consultant under terms of the Agreement shall be a not to exceed fixed fee of $7,510. Compensation for all Reimbursable Services provided by the Professional Consultant under terms of the Agreement shall be a not -to -exceed fee of $0. Compensation in excess of the total Agreement amount of $7,510 shall not be allowed unless approved by a written Agreement amendment. Compensation for costs incurred as a result of improper performance by the Professional Consultant will not be allowed. Details of the Agreement compensation provisions follow in the text of the Agreement and Standard Provisions incorporated by reference. The Professional Consultant represents that it is in compliance with the laws and regulations relating to the professions of environmental and geotechnical engineering and signifies its willingness to provide the desired environmental and geotechnical engineering services. The Professional Consultant's representative is John Best, whose work address and telephone number is 16650 South Canal, South Holland, Illinois 60473. The Owner's representative is Douglas J. Gaynor, whose work address and telephone number is 2100 Ridge Avenue, Evanston, Illinois 60201, 847-448-8040. This Agreement incorporates and the parties agree to all of the Standard Provisions of the Professional Consulting Services Agreement attached hereto and made a part hereof. The Professional Consultant acknowledges receipt of a copy of these Standard Provisions. The parties also agree to all of the provisions, which are annexed and made part of this Agreement, consisting of Attachment A and B. Nothing in this Agreement accords any third party beneficiary rights whatsoever on any non-party that may be enforced by any non-party to this Agreen}e& For the Professienal Consultant By: Title: Q�cJ�4 �Gi%f Date: For the Cityof Evanston By: (A)PJA Title: Wally Bobkiewicz, City Manager App/O l;batte �;f v • Aw-ea&, W. Cr PROFESSIONAL CONSULTING SERVICES AGREEMENT STANDARD PROVISIONS TABLE OF CONTENTS Article 1 Definitions Article 2 Professional Consultant's Responsibilities 2.1 General 2.2 Schedule 2.3 Errors and Omissions 2.4 Subletting or Assignment of Agreement Article 3 Owner's Responsibilities 3.1 General 3.2 Owner's Representative Article 4 Basic Scope of Services 4.1 General Article 5 Miscellaneous Provisions 5.1 General 5.2 Additional Services 5.3 Legal Relations 5.4 Indemnity 5.5 Insurance Requirements 5.6 Ownership of Contract Documents 5.7 Termination, Suspension or Abandonment Article 6 Not Used Article 7 Compensation 7.1 Basic Services 7.2 Reimbursable Expenses 7.3 Invoicing and Payment Attachment A City of Evanston Request for Proposal 411-53 Attachment B Professional Consultant's Proposal Dated February 3, 2011 and fee proposal revisions dated March 7, 2011. Page 2 of 8 Article 1 Definitions 1.1 "Deliverable" means drawings, reports and other documents produced and delivered to the Owner as part of a formal Project Submittal as outlined in Article 4. 1.2 "Owner" means the City of Evanston. 1.3 "Phase" means a specific project stage performed by the Professional Consultant as outlined in Article 4. 1.4 "Professional Consultant" means Environmental Protection Industries. 1.5 "Project" means the specific improvement proposed by the Owner in this Agreement. 1.6 "Scope" means the Phase I Environmental Site Assessment (ESA), Phase II ESA and geotechnical investigation as outlined in the Project's Request for Proposal. 1.7 "Services" means the environmental engineering and geotechnical engineering and related labor, equipment and materials furnished by the Professional Consultant in accordance with this Agreement. 1.8 "Sub -consultant" means any consultant employed directly by the Professional Consultant to perform specific Professional Services for this Project. 1.9 "Subcontractor" means any consultant employed directly by the Professional Consultant to perform specific Professional Services for this Project. 1.10 "Submittal" means a specifically identified submission of reports or other documents to the Owner or other governing jurisdiction for review and/or approval as outlined in Article 4. Article 2 Professional Consultant's Responsibilities 2.1 General 2.1.1 The Professional Consultant's services consist of those services performed by the Professional Consultant, Professional Consultant's employees and Professional Consultant's sub -consultants as enumerated in Article 4 of this Agreement. 2.1.2 The Professional Consultant shall not conduct any work outside the Basic Scope of Services and shall not receive any additional compensation therefore without the prior written approval from the Owner in the form of an amendment to this Agreement. 2.1.3 The Professional Consultant shall provide services in accordance with all applicable codes and regulations set forth by any governing bodies having jurisdiction over the Project. 2.1.4 The Professional Consultant shall determine all permits and documents necessary to perform the Project and shall prepare and submit all required documents and permit applications on the forms and in the manner prescribed by the issuing agency and shall address all agency comments and required revisions prior to Project bidding. 2.2 Schedule 2.2.1 Time is of the essence in completing the services and the Professional Consultant shall proceed continuously and expeditiously through completion of each Phase. The Professional Consultant and the Owner shall develop and approve a schedule for the performance of the Professional Consultant's services. This schedule shall include a minimum of one (1) week following each Phase as outlined in Article 4 for Owner and/or governing jurisdiction review and/or approval. 2.2.2 The schedule shall not be extended because of any delay attributable to the Professional Consultant. The schedule may be extended by the Owner at its sole discretion in the event of a delay attributable to the Owner, or because of unavoidable delays caused by an act of God, war, governmental actions, or other conditions beyond the control of the Professional Consultant. 2.2.3 The Professional Consultant shall be held liable for any and all damages to the Owner resulting from Project delays caused by the Professional Consultant and within the Professional Consultant's control. 2.2.4 Failure to adhere to the schedule will result in Owner issuing a written notice to the Professional Consultant. After two (2) written notices have been sent to the Professional Consultant for failure to adhere to the project schedule, beginning with the third notice, notices for failure to adhere to the project schedule will result in the Professional Consultant being assessed liquidated damages in the amount of a 1% reduction in the Professional Consultant's fee for each occurrence. This payment is for liquidated damages for those expenses which the City incurred as a result of the delay, and not a penalty. All such liquidated damages may be set off against any money that may be due to the Professional Consultant. 2.3 Errors and Omissions 2.3.1 The Professional Consultant is responsible for and shall pay all costs due to its negligent errors, omissions or misconduct, including but not limited to: errors in Contract Documents, lack of document coordination, missing or ambiguous information and failure to identify observable field conditions. Page 3 of 8 2.3.2 The Professional Consultant shall be responsible for the accuracy of the Work performed under this Agreement and shall promptly make necessary revisions or corrections to its Work resulting from its negligent acts, errors or omissions without additional compensation. The Professional Consultant shall give immediate attention to these revisions or corrections to prevent or minimize delay to the Project. 2.4 Subletting or Assignment of Agreement 2.4.1 The name and description of all consultants used by the Professional Consultant to perform specific services directly related to this Project shall be submitted to the Owner for approval in writing before their use on this project. The Professional Consultant shall be responsible for paying these consultants for the consultant's total services. The list of subconsultants for performance of this project is listed in Attachment B. 2.4.2 If the Professional Consultant's assistants, employees, or subcontractors prove unsatisfactory to the Owner, such persons shall be immediately removed from the Project and promptly replaced by the Professional Consultant upon request from the Owner, and the Professional Consultant shall not object to the Owner's request. 2.4.3 Consent to assign, sublet or otherwise transfer responsibility for any portion of the Work shall not be construed to relieve the Professional Consultant of any responsibility for the fulfillment of this Agreement. No subletting, subcontracting or assignment of any portion of the Work under this Agreement shall state, imply, intend or be construed to limit the legal liability of either the Professional Consultant or the sub -consultant. 2.4.4 The guidelines, terms, conditions and requirements of this contract shall apply to all persons used by the Professional Consultant to assist in the design and development of the Project. Article 3 Owner's Responsibility 3.1 General 3.1.1 The Owner shall provide all available information regarding the project site. 3.2 Owner's Representative 3.2.1 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner's authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Professional Consultant in order to avoid unreasonable delay in the orderly and sequential progress of the Professional Consultant's services. All material communications between the parties hereto shall be confirmed by the Owner in writing. Article 4 Basic Scope of Services 4.1 General 4.1.1 The Professional Consultant's Basic Scope of Services shall be based on Attachment B, the Professional Consultant's proposal dated February 3, 2011 in response to Attachment A, the City's Request for Proposal #11-53. Article 5 Miscellaneous Provisions 5.1 General 5.1.1 This agreement shall be governed by the laws of the State of Illinois, in the event of litigation the venue shall be in Cook County, Illinois. 5.1.2 This Agreement represents the entire and integrated agreement between the Owner and Professional Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Professional Consultant. 5.1.3 This Agreement has been negotiated and entered into by each party with the advice of independent counsel and should not be construed against one party or the other based on which party drafted any portion of the Contract. 5.1.4 Professional Consultant hereby waives and forfeits all claims that any work, services or other activities were performed pursuant to an oral contract or other oral agreement separate from this contract. 5.1.5 In addition to all of the remedies available, the Owner, in any arbitration or litigation pertaining to this Agreement, shall have the right to collect its reasonable attorney's fees and other costs related to such arbitration or determined by the judge or arbitrator. 5.1.6 It is understood that the obligations assumed in this Agreement shall be binding upon the Owner and upon the Professional Consultant, and upon the successors, executors, administrators and Page 4 of 8 assigns of the parties hereto and that neither the Owner nor the Professional Consultant shall assign, sub -contract or transfer their interest in this Agreement without the written consent of the other party. 5.1.7 Whenever possible, each provision of this Agreement shall be interpreted in a manner as to be effective and valid under applicable law. If, however, any provision of this Agreement, or portion thereof, is prohibited by law or found invalid under any law, only such provision or portion thereof shall be ineffective, without in any manner invalidating or affecting the remaining provisions of this Agreement or valid portions of such provisions, which are hereby deemed severable. 5.1.8 Professional Consultant shall comply with the law and the provisions of the "Prevailing Wage Act," (820 ILCS 130/1, et. seq.) which provided that "a wage of no less than general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed, shall be paid to all laborers, workers and mechanics employed by or on behalf of any and all public bodies engaged in public works." 5.1.9 The Professional Consultant certifies it has not been barred from being awarded a contract with a unit of State or local Government as a result of violation of Section 33E-3 or Section 33E of the Criminal Code of 1961 (bid rigging or bid rotating). 5.1.10 The Professional Consultant certifies, pursuant to the Illinois Human Rights Act (775 ILCS 5/2- 105 et. seq.), that it has written sexual harassment policy that includes, at a minimum, the following information: (1) the illegality of sexual harassment, (2) the definition of sexual harassment under State law, (3) a description of sexual harassment utilizing examples, (4) The Professional Consultant's internal complaint process including penalties, (5) legal recourse, investigation and complaint process available through the Illinois Department of Human Rights and the Human Rights Commission and directions on how to contact both; and (6) protection against retaliation as provided to the Department of Human Rights upon request. 5.1.11 The Professional Consultant shall abide by the "Illinois Preference Act" which stipulates that whenever there is a period of excessive unemployment in Illinois, defined as any month immediately following two (2) consecutive months during which the level of unemployment in Illinois exceeds five percent (5%) as measured by the U.S. Bureau of Labor Statistics in its monthly publication of employment and unemployment figures, the Professional Consultant shall employ only Illinois laborers unless otherwise exempted as so stated in the Act ("Illinois laborer" means any person who has resided in Illinois for least 30 days and intends to become or remain an Illinois resident). Other laborers may be used if Illinois laborers are not available or are incapable of performing the particular type of work involved if so certified by the Professional Consultant and approved by the Owner's designated representative. 5.2 Additional Services 5.2.1 If in the Professional Consultant's opinion the Owner requests Work not included in the Basic Scope of Services of this Agreement or reasonably inferable therein, the Professional Consultant must notify the Owner in writing if it is the Professional Consultant's opinion that extra compensation or additional time allowance is warranted. 5.2.2 The Professional Consultants proposal for Additional Services shall include the justification for the claim for extra compensation and the amount of additional fee and/or time requested. All proposals for Additional Services shall be based on the hourly billing rates provided in Attachment B. 5.2.3 The Professional Consultant shall not proceed with any Additional Services outside of the Basic Scope of Services until the Owner has approved a written Agreement amendment authorizing the Professional Consultant to proceed. Such Agreement amendments shall include appropriate time extensions if the Owner determines they are warranted. 5.3 Legal Relations 5.3.1 The Professional Consultant shall become familiar with and shall at all times comply with and observe all federal, state and local laws, ordinances and regulations which in any manner affect the Project or the Professional Consultant's conduct. 5.3.2 In carrying out the provisions of this Agreement, or in exercising any power or authority granted to the Owner thereby, there shall be no personal liability upon the authorized representatives of the Owner, it being understood that in such matters they act as agents and representatives of the City of Evanston. 5.3.3 The Professional Consultant or its officers, agents, and employees or any subconsultant's officers, agents, or employees shall be responsible for any and all damages to property or persons arising Page 5of8 out of a negligent act, error and/or omission in the Professional Consultant's performance of this Agreement. 5.3.4 The Professional Consultant shall indemnify and hold harmless the Owner and all their officers, agents and employees on account of any damages to persons or property resulting from negligence of the Professional Consultant or its officers, agents, and employees or any subconsultant's officers, agents, or employees arising out of, or in connection with the performance and completion of this Agreement. 5.3.5 Professional Consultant shall be and act as an independent contractor and not as a partner, joint venturer or agent of the Owner and shall not bind nor attempt to bind Owner to any contract. Professional Consultant is an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including, but not limited to, Worker's Compensation Insurance; and Professional Consultant agrees to defend, indemnify and hold the Owner harmless from any and all claims, damages, liability, attorney's fees and expenses on account of (i) an alleged failure by Professional Consultant to satisfy any such obligations or any other obligation (under this Agreement or otherwise) or (ii) any other action or inaction of Professional Consultant. 5.4 Indemnity 5.4.1 Professional Consultant must defend, indemnify, keep and hold harmless the City of Evanston, its officers, representatives, elected and appointed officials, agents and employees from and against any and all Losses, including those related to: 1. injury, death or damage of or to any person or property; 2. any infringement or violation of any property right (including patent, trademark or copyright); 3. failure to pay or perform or cause to be paid or performed Professional Consultants covenants and obligations as and when required under this Contract or otherwise to pay or perform its obligations to any subcontractor; 4. the City's exercise of its rights and remedies under this Contract; and 5. injuries to or death of any employee of Professional Consultant or any sub -consultant under any workers compensation statute. 5.4.2 "Losses" means, individually and collectively, liabilities of every kind, including losses, 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, judgments or settlements, any or all of which in any way arise out of or relate to the acts or omissions of Professional Consultant, its employees, agents and sub -consultants, except those which arise or which alleged to have arisen from the negligence of the City, its officers, employees, agents or subcontractors. 5.4.3 At the City Attorney's option, Professional Consultant 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 Professional Consultant of any of its obligations under this Contract. Any settlement must be made only with the prior written consent of the City Attorney, if the settlement requires any action on the part of the City. 5.4.4 To the extent permissible by law, Professional Consultant waives any limits to the amount of its obligations to indemnify, defend or contribute to any sums due under any Losses, including any claim by any employee of Professional Consultant that may be subject to 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 Ill. 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. 5.4.5 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 Professional Consultants performance of Services beyond the term. Professional Consultant 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 Professional Consultant's duties under this Contract, including the insurance requirements set forth in the Contract. 5.5 Insurance Requirements 5.5.1 Professional Consultant shall carry and maintain at its own cost, with such companies as are acceptable to Owner, all necessary liability insurance (which shall include as a minimum the requirements set forth below) during the term of this Agreement, for damages caused or Page 6 of 8 contributed to by Professional Consultant, and insuring Professional Consultant against claims which may arise out of or result from Professional Consultant's performance or failure to perform the Services hereunder: 1. Worker's compensation in statutory limits and employer's liability insurance in the amount of at least $500,000 2. Comprehensive general liability coverage, and designating Owner as additional insured for not less than $3,000,000 combined single limit for bodily injury, death and property damage, per occurrence 3. Comprehensive automobile liability insurance covering owned non -owned and leased vehicles for not less than $1,000,000 combined single limit for bodily injury, death or property damage, per occurrence 4. Errors and omissions or professional liability insurance respecting any insurable professional services hereunder in the amount of at least $1,000,000. 5.5.2 Professional Consultant shall provide Owner with certificates of insurance and, if requested by Owner, certified copies of the policies of insurance evidencing the coverage and amounts set forth in this Section. Professional Consultant's certificate of insurance shall contain a provision that the coverage afforded under the policy(s) will not be canceled or reduced without thirty (30) days prior written notice (hand delivered or registered mail) to Owner. 5.6 Ownership of Contract Documents 5.6.1 Upon completion or termination of this Agreement, all documents produced as a result of this project, including a compact disc of all digital documents shall be delivered to and become the property of the Owner. Final payment is contingent upon the delivery of these items. These documents may be used without restriction by the Owner for any public purpose. Any such use shall be without compensation or liability to the Professional Consultant and will not violate any intellectual property rights or interests of the Professional Consultant. The Professional Consultant shall be permitted to retain copies, including reproducible copies of the documents for information and reference in connection with the Project. 5.6.2 Professional Consultant is specifically denied the right of using in any form or medium, the name of the Owner for public advertisement, unless expressly granted by written permission of the Owner. 5.6.3 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Owner's reserved rights. 5.7 Termination, Suspension or Abandonment 5.7.1 This Agreement may be terminated by the Owner upon not less than seven (7) days' written notice. In the event of a termination of services by the Owner, the Owner shall have no liability of any kind whatsoever to the Professional Consultant after the termination date including any claim for lost profits or opportunities. 5.7.2 In the event of termination of the Project, the Professional Consultant shall be compensated for services performed prior to termination on a prorated basis. The Professional Consultant shall submit work completed and receive written approval from the Owner for the portion of Work completed prior to receiving payment. The value of the services rendered and delivered will be determined by the Owner. 5.7.3 If the Owner suspends the Project more than thirty (30) consecutive days, the Professional Consultant may be compensated for services performed prior to notice of suspension on a prorated basis. The Owner shall have no further liability whatsoever to Professional Consultant after suspension of Professional Consultant's services including, but not limited to, any and all claims for lost profits or opportunities. The Professional Consultant must submit work completed and receive written approval from the Owner for the portion of Work completed prior to receiving payment. The value of the services rendered and delivered will be determined by the Owner. 5.7.4 If the Owner fails to make payments in accordance with Article 7, the Professional Consultant may, upon thirty (30) days' written notice to the Owner, suspend performance of services under this Agreement. In the event of a suspension of services, the Professional Consultant shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Professional Consultant shall not suspend services in the event of a good faith dispute between Professional Consultant and the Owner. 5.7.5 If the Owner commits a material breach of this Agreement or if the Project is suspended for a period of six months or more, the Professional Consultant may terminate this Agreement by written notice to the Owner only after the Owner has been given a notice of a material breach by Page 7 of 8 the Professional Consultant and does not cure the failure within a period of ten (10) business days. Article 6 — Not Used Article 7 Compensation 7.1 Basic Services 7.1.1 Payments for Basic Services shall be made on the not to exceed fixed fee of $7,510 as outlined in the project fee schedule provided in Attachment B and will be billed against a per phase and per consultant and/or subconsultant basis. Such payment shall be full compensation for Professional Consultant services rendered with the exception of items as noted in Paragraph 7.2. 7.1.2 Attachment B represents the Professional Consultant's best estimate for the fees required to complete the Project. The Professional Consultant will not receive additional compensation to complete the Basic Services for this project as outlined in Article 4 unless Additional Services not included in the Project's Basic Services are required and authorized by the Owner in writing in advance. 7.1.3 Professional Consultant payments shall be made on a monthly (progress payment) schedule. 7.1.4 The Owner has the equitable right to set off against any sum due and payable to the Professional Consultant under this Agreement, any amount the Owner determines the Professional Consultant owes the Owner, whether arising under this Agreement or under any other Agreement or otherwise. 7.1.5 Compensation in excess of the total Agreement amount will not be allowed unless justified in the Owner's sole judgement and authorized in advance by an approved written Agreement amendment. 7.1.6 Compensation for improper performance by the Professional Consultant will not be allowed. 7.2 Reimbursable Expenses 7.2.1 Reimbursable expenses, that are in addition to compensation for Basic services, shall be made on the not -to -exceed fixed fee of $0 and include the following items: cost of deliverable reproductions, postage and handling of Contract Documents for each Phase and/or Submittal as outlined in Article 4 and cost of transportation at a rate of $0.50 per mile. 7.2.2 The following items are considered overhead costs of the Professional Consultant and are not covered under expenses reimbursable to the Professional Consultant by the Owner: meals, entertainment, in-house materials, equipment, scans, copying, printing and other reproductions necessary for the Professional Consultant's development of documents for the project, overtime, telephone and fax charges, computer use, computer time, computer disks, computer CDs and in- house scale model(s) and/or rendering(s). 7.2.3 Reimbursable expenses are to be billed at cost only and are to be invoiced with appropriate back- up data (receipts, delivery bills, etc.). 7.3 Invoicing and Payment 7.3.1 Invoicing shall be addressed to the assigned City of Evanston Project Manager, shall be submitted in spreadsheet format and shall include the following information: 1. Project name and purchase order number. 2. Amount submitted for payment broken down by Phase and/or Submittal and Professional Consultant and/or Subconsultant. 3. Total contract amount. 4. Balance remaining. 5. Percentage of Phase and overall Project complete to date. 6. Itemized reimbursable expenses (with appropriate back-up data). 7.3.2 Payment will be made in accordance with all local ordinances and regulations of the City of Evanston and in accordance with the Illinois Prompt Payment Act. Page 8 of 8