HomeMy WebLinkAboutProfessional Services for Inspection of the 1934 Reservoir and 1948 Settling Basins at Evanston Water Treatment FacilityPROFESSIONAL SERVICES AGREEMENT
The parties referenced herein desire to enter into an agreement for professional
services for
Inspection of Reservoir and Settling Basins at the Water Treatment Plant
(RFP No. 12-168)
THIS AGREEMENT (hereinafter referred to as the "Agreement') entered into this 3 day of
0,4-,?� c/ , 2012, between the City of Evanston, an Illinois municipal corporation with
offices located at 2100 Ridge Avenue, Evanston, Illinois 60201 (hereinafter referred to as the
"City"), and CTL Group with offices located at 5400 Old Orchard Road, Skokie, Illinois 60077
(hereinafter referred to as the "Consultant'). Compensation for all basic Services ("the
Services") provided by the Consultant pursuant to the terms of this Agreement shall not exceed
$89,000.00.
1. COMMENCEMENT DATE
Consultant shall commence the Services on October 1, 2012, or no later than three (3)
DAYS AFTER City executes and delivers this Agreement to Consultant.
II. COMPLETION DATE
Consultant shall complete the Services by December 31, 2012. If this Agreement
provides for renewals after an initial term, no renewal shall begin until agreed to in
writing by both parties prior to the completion date of this Agreement.
III. PAYMENTS
City shall pay Consultant those fees as provided herein: Payment shall be made upon
the completion of each task for a project, as set forth in Exhibit A — Project Milestones
and Deliverables. Any expenses in addition to those set forth here must be specifically
approved by the City in writing in advance.
IV. DESCRIPTION OF SERVICES
Consultant shall perform the services (the "Services") set forth here: Services are those
as defined in Exhibit A, the City's Request for Proposal No. 12-158 (Exhibit B), and
Consultant's Response to the Proposal (Exhibit C). Services may include, if any, other
documented discussions and agreements regarding scope of work and cost (Exhibit D).
V. GENERAL PROVISIONS
A. Services. Consultant shall perform the Services in a professional and
workmanlike manner. All Services performed and documentation (regardless of format)
provided by Consultant shall be in accordance with the standards of reasonable care
and skill of the profession, free from errors or omissions, ambiguities, coordination
problems, and other defects. Consultant shall take into account any and all applicable
plans and/or specifications furnished by City, or by others at City's direction or request,
to Consultant during the term of this Agreement. All materials, buildings, structures, or
equipment designed or selected by Consultant shall be workable and fit for the intended
use thereof, and will comply with all applicable governmental requirements. Consultant
shall require its employees to observe the working hours, rules, security regulations and
holiday schedules of City while working and to perform its Services in a manner which
does not unreasonably interfere with the City's business and operations, or the business
and operations of other tenants and occupants in the City which may be affected by the
work relative to this Agreement. Consultant shall take all necessary precautions to
assure the safety of its employees who are engaged in the performance of the Services,
all equipment and supplies used in connection therewith, and all property of City or other
parties that may be affected in connection therewith. If requested by City, Consultant
shall promptly replace any employee or agent performing the Services if, in the opinion
of the City, the performance of the employee or agent is unsatisfactory.
Consultant is responsible for conforming its final work product to generally
accepted professional standards for all work performed pursuant to this Agreement.
Consultant is an independent Consultant 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. Nothing in this Agreement accords any
third -party beneficiary rights whatsoever to any non-party to this Agreement that any
non-party may seek to enforce. Consultant acknowledges and agrees that should
Consultant or its subconsultants provide false information, or fail to be or remain in
compliance with this Agreement, the City may void this Agreement. The Consultant
warrants and states that it has read the Contract Documents, and agrees to be bound
thereby, including all performance guarantees as respects Consultant's work and all
indemnity and insurance requirements.
The Consultant shall obtain prior approval from the City prior to subcontracting
with any entity or person to perform any of the work required under this Agreement. If
the Consultant subcontracts any of the services to be performed under this Agreement,
the subconsultant agreement shall provide that the services to be performed under any
such agreement shall not be sublet, sold, transferred, assigned or otherwise disposed of
to another entity or person without the City's prior written consent. The Consultant shall
be responsible for the accuracy and quality of any subconsultant's work.
All subconsultant agreements shall include verbatim or by reference the
provisions in this Agreement binding upon Consultant as to all Services provided by this
Agreement, such that it is binding upon each and every subconsultant that does work or
provides Services under this Agreement.
The Consultant shall cooperate fully with the City, other City contractors, other
municipalities and local government officials, public utility companies, and others, as
may be directed by the City. This shall include attendance at meetings, discussions and
hearings as requested by the City. This cooperation shall extend to any investigation,
hearings or meetings convened or instituted by OSHA relative to this Project, as
necessary. Consultant shall cooperate with the City in scheduling and performing its
Work to avoid conflict, delay in or interference with the work of others, if any, at the
Project.
Except as otherwise provided herein, the nature and scope of Services specified
in this Agreement may only be modified by a writing approved by both parties. This
Agreement may be modified or amended from time to time provided, however, that no
such amendment or modification shall be effective unless reduced to writing and duly
authorized and signed by the authorized representatives of the parties.
B. Representation and Warranties. Consultant represents and warrants that: (1)
Consultant possesses and will keep in force all required licenses to perform the
Services, (2) the employees of Consultant performing the Services are fully qualified,
licensed as required, and skilled to perform the Services.
C. Termination. City may, at any time, with or without cause, terminate this
Agreement upon seven (7) days written notice to Consultant. If the City terminates this
agreement, the City will make payment to Consultant for Services performed prior to
termination. Payments made by the City pursuant to this Agreement are subject to
sufficient appropriations made by the City of Evanston City Council. In the event of
termination resulting from non -appropriation or insufficient appropriation by the City
Council, the City's obligations hereunder shall cease and there shall be no penalty or
further payment required. In the event of an emergency or threat to the life, safety or
welfare of the citizens of the City, the City shall have the right terminate this Agreement
without prior written notice. Within thirty (30) days of termination of this Agreement, the
Consultant shall turn over to the City any documents, drafts, and materials, including but
not limited to, outstanding work product, data, studies, test results, source documents,
AutoCad Version 2007, PDF, ArcView, Word, Excel spreadsheets, technical
specifications and calculations, and any other such items specifically identified by the
City related to the Services herein.
D. Independent Consultant. Consultant's status shall be that of an independent
Consultant and not that of a servant, agent, or employee of City. Consultant shall not
hold Consultant out, nor claim to be acting, as a servant, agent or employee of City.
Consultant is not authorized to, and shall not, make or undertake any agreement,
understanding, waiver or representation on behalf of City. Consultant shall at its own
expense comply with all applicable workers compensation, unemployment insurance,
employer's liability, tax withholding, minimum wage and hour, and other federal, state,
county and municipal laws, ordinances, rules, regulations and orders. Consultant
agrees to abide by the Occupational Safety & Health Act of 1970 (OSHA), and as the
same may be amended from time to time, applicable state and municipal safety and
health laws and all regulations pursuant thereto.
E. Conflict of Interest. Consultant represents and warrants that no prior or present
services provided by Consultant to third parties conflict with the interests of City in
respect to the Services being provided hereunder except as shall have been expressly
disclosed in writing by Consultant to City and consented to in writing to City.
F. Ownership of Documents and Other Materials. All originals, duplicates and
negatives of all plans, drawings, reports, photographs, charts, programs, models,
specimens, specifications, AutoCad Version 2007, Excel spreadsheets, PDF, and other
documents or materials required to be furnished by Consultant hereunder, including
drafts and reproduction copies thereof, shall be and remain the exclusive property of
City, and City shall have the unlimited right to publish and use all or any part of the same
without payment of any additional royalty, charge, or other compensation to Consultant.
Upon the termination of this Agreement, or upon request of City, during any stage of the
Services, Consultant shall promptly deliver all such materials to City. Consultant shall
not publish, transfer, license or, except in connection with carrying out obligations under
this Agreement, use or reuse all or any part of such reports and other documents,
including working pages, without the prior written approval of City, provided, however,
that Consultant may retain copies of the same for Consultant's own general reference.
G. Payment Invoices for payment shall be submitted by Consultant to City at the
address set forth above, together with reasonable supporting documentation, City may
require such additional supporting documentation as City reasonably deems necessary
or desirable. Payment shall be made in accordance with the Illinois Local Government
Prompt Payment Act, after City's receipt of an invoice and all such supporting
documentation.
H. Right to Audit. Consultant shall for a period of three years following
performance of the Services, keep and make available for the inspection, examination
and audit by City or City's authorized employees, agents or representatives, at all
reasonable time, all records respecting the services and expenses incurred by
Consultant, including without limitation, all book, accounts, memoranda, receipts,
ledgers, canceled checks, and any other documents indicating, documenting, verifying
or substantiating the cost and appropriateness of any and all expenses. If any invoice
submitted by Consultant is found to have been overstated, Consultant shall provide City
an immediate refund of the overpayment together with interest at the highest rate
permitted by applicable law, and shall reimburse all of City's expenses for and in
connection with the audit respecting such invoice.
I. Indemnity. Consultant shall defend, indemnify and hold harmless the City and
its officers, elected and appointed officials, agents, and employees from any and all
liability, losses, or damages as a result of claims, demands, suits, actions, or
proceedings of any kind or nature, including but not limited to costs, and fees, including
attorney's fees, judgments or settlements, resulting from or arising out of any negligent
or willful act or omission on the part of the Consultant or Consultant's subcontractors,
employees, agents or subcontractors during the performance of this Agreement. Such
indemnification shall not be limited by reason of the enumeration of any insurance
coverage herein provided. This provision shall survive completion, expiration, or
termination of this Agreement.
Nothing contained herein shall be construed as prohibiting the City, or its officers,
agents, or employees, from defending through the selection and use of their own agents,
attorneys, and experts, any claims, actions or suits brought against them. The
Consultant shall be liable for the costs, fees, and expenses incurred in the defense of
any such claims, actions, or suits. Nothing herein shall be construed as a limitation or
waiver of defenses available to the City and employees and agents, including but not
limited to the Illinois Local Governmental and Governmental Employees Tort Immunity
Act, 745 ILCS 10/1-101 et seq.
At the City Corporation Counsel's option, 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 Consultant of any of its obligations under this Agreement. Any
settlement of any claim or suit related to this Agreement by Consultant must be made
only with the prior written consent of the City Corporation Counsel, if the settlement
requires any action on the part of the City.
To the extent permissible by law, 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 Consultant that may be subject to the Illinois
Workers Compensation Act, 820 ILCS 305/1 et seq. or any other related law or judicial
decision, including but not limited to, 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.
Consultant shall be responsible for any losses and costs to repair or remedy
work performed under this Agreement resulting from or arising out of any act or
omission, neglect, or misconduct in the performance of its Work or its Subconsultants'
work. Acceptance of the work by the City will not relieve the Consultant of the
responsibility for subsequent correction of any such error, omissions and/or negligent
acts or of its liability for loss or damage resulting therefrom. All provisions of this Section
shall survive completion, expiration, or termination of this Agreement.
J. Insurance. Consultant shall carry and maintain at its own cost with such
companies as are reasonably acceptable to City 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 contributed to by Consultant, and insuring
Consultant against claims which may arise out of or result from 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 City 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, and (4) errors and
omissions or professional liability insurance respecting any insurable professional
services hereunder in the amount of at least $1,000,000. Consultant shall give to the
City certificates of insurance for all Services done pursuant to this Agreement before
Consultant performs any Services, and, if requested by City, certified copies of the
policies of insurance evidencing the coverage and amounts set forth in this Section. The
City may also require Consultant to provide copies of the Additional Insured
Endorsement to said policy(ies) which name the City as an Additional Insured for all of
Consultant's Services and work under this Agreement. Any limitations or modification on
the certificate of insurance issued to the City in compliance with this Section that conflict
with the provisions of this Section shall have no force and effect. 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 City. Consultant understands that the acceptance of certificates,
policies and any other documents by the City in no way releases the Consultant and its
subcontractors from the requirements set forth herein. Consultant expressly agrees to
waive its rights, benefits and entitlements under the "Other Insurance" clause of its
commercial general liability insurance policy as respects the City. In the event
Consultant fails to purchase or procure insurance as required above, the parties
expressly agree that Consultant shall be in default under this Agreement, and that the
City may recover all losses, attorney's fees and costs expended in pursuing a remedy or
reimbursement, at law or in equity, against Consultant.
Consultant acknowledges and agrees that if it fails to comply with all
requirements of this Section, that the City may void this Agreement.
K. Confidentiality. In connection with this Agreement, City may provide Consultant
with information to enable Consultant to render the Services hereunder, or Consultant
may develop confidential information for City. Consultant agrees (i) to treat, and to
obligate Consultant's employees to treat, as secret and confidential all such information
whether or not identified by City as confidential, (ii) not to disclose any such information
or make available any reports, recommendations and /or conclusions which Consultant
may make for City to any person, firm or corporation or use the same in any manner
whatsoever without first obtaining City's written approval, and (iii) not to disclose to City
any information obtained by Consultant on a confidential basis from any third party
unless Consultant shall have first received written permission from such third party to
disclose such information.
Pursuant to the Illinois Freedom of Information Act, 5 ILCS 140/7(2), records in
the possession of others whom the City has contracted with to perform a governmental
function are covered by the Act and subject to disclosure within limited statutory
timeframes (five (5) working days with a possible five (5) working day extension). Upon
notification from the City that it has received a Freedom of Information Act request that
calls for records within the Consultant's control, the Consultant shall promptly provide all
requested records to the City so that the City may comply with the request within the
required timeframe. The City and the Consultant shall cooperate to determine what
records are subject to such a request and whether or not any exemptions to the
disclosure of such records, or part thereof, is applicable. Vendor shall indemnify and
defend the City from and against all claims arising from the City's exceptions to
disclosing certain records which Vendor may designate as proprietary or confidential.
Compliance by the City with an opinion or a directive from the Illinois Public Access
Counselor or the Attorney General under FOIA, or with a decision or order of Court with
jurisdiction over the City, shall not be a violation of this Section.
L. Use of City's Name or Picture of Property. Consultant shall not in the course
of performance of this Agreement or thereafter use or permit the use of City's name nor
the name of any affiliate of City, nor any picture of or reference to its Services in any
advertising, promotional or other materials prepared by or on behalf of Consultant, nor
disclose or transmit the same to any other party.
M. No Assignments or Subcontracts. Consultant shall not assign or subcontract
all or any part or its rights or obligations hereunder without City's express prior written
approval. Any attempt to do so without the City's prior consent shall, at City's option, be
null and void and of no force or effect whatsoever. Consultant shall not employ, contract
with, or use the services of any other architect, interior designer, engineer, consultant,
special contractor, or other third party in connection with the performance of the Services
without the prior written consent of City.
N. Compliance with Applicable Statues, Ordinances and Regulations. In
performing the Services, Consultant shall comply with all applicable federal, state,
county, and municipal statues, ordinances and regulations, at Consultant's sole cost and
expense, except to the extent expressly provided to the contrary herein. Whenever the
City deems it reasonably necessary for security reasons, the City may conduct at its own
expense, criminal and driver history background checks of Consultant's officers,
employees, subcontractors, or agents. Consultant shall immediately reassign any such
individual who in the opinion of the City does not pass the background check.
O. Liens and Encumbrances. Consultant, for itself, and on behalf of all
subcontractors, suppliers, materialmen and others claiming by, through or under
Consultant, hereby waives and releases any and all statutory or common law
mechanics' materialmens' or other such lien claims, or rights to place a lien upon City
property or any improvements thereon in connection with any Services performed under
or in connection with this Agreement. Consultant further agrees, as and to the extent of
payment made hereunder, to execute a sworn affidavit respecting the payment and lien
releases of all subcontractors, suppliers and materialmen, and a release of lien
respecting the Services at such time or times and in such form as may be reasonably
requested by City. Consultant shall protect City from all liens for labor performed,
material supplied or used by Consultant and/or any other person in connection with the
Services undertaken by consultant hereunder, and shall not at any time suffer or permit
any lien or attachment or encumbrance to be imposed by any subconsultant, supplier or
materialmen, or other person, firm or corporation, upon City property or any
improvements thereon, by reason or any claim or demand against Consultant or
otherwise in connection with the Services.
P. Notices. Every notice or other communication to be given by either party to the
other with respect to this Agreement, shall be in writing and shall not be effective for any
purpose unless the same shall be served personally or by United States certified or
registered mail, postage prepaid, addressed if to City as follows: City of Evanston, 2100
Ridge Avenue, Evanston, Illinois 60201, Attention: Purchasing Division and to
Consultant at the address first above set forth, or at such other address or addresses as
City or Consultant may from time to time designate by notice given as above provided.
Q. Attorney's Fees. In the event that the City commences any action, suit, or other
proceeding to remedy, prevent, or obtain relief from a breach of this Agreement by
Consultant, or arising out of a breach of this Agreement by Consultant, the City shall
recover from the Consultant as part of the judgment against Consultant, its attorneys'
fees and costs incurred in each and every such action, suit, or other proceeding.
R. Waiver. Any failure or delay by City to enforce the provisions of this Agreement
shall in no way constitute a waiver by City of any contractual right hereunder, unless
such waiver is in writing and signed by City.
S. Severability. In the event that any provision of this Agreement should be held
void, or unenforceable, the remaining portions hereof shall remain in full force and effect.
T. Choice of Law. The rights and duties arising under this Agreement shall be
governed by the laws of the State of Illinois. Venue for any action arising out or due to
this Agreement shall be in Cook County, Illinois. The City shall not enter into binding
arbitration to resolve any dispute under this Agreement. The City does not waive tort
immunity by entering into this Agreement.
U. Time. Consultant agrees all time limits provided in this Agreement and any
Addenda or Exhibits hereto are of essence to this Agreement. Consultant shall continue
to perform its obligations while any dispute concerning the Agreement is being resolved,
unless otherwise directed by the City.
V. Survival. Except as expressly provided to the contrary herein, all provisions of
this Agreement shall survive all performances hereunder including the termination of the
Consultant.
VI. EQUAL EMPLOYMENT OPPORTUNITY
In the event of the Consultant's noncompliance with any provision of Section 1-12-5 of
the Evanston City Code, the Illinois Human Rights Act or any other applicable law, the
Consultant may be declared nonresponsible and therefore ineligible for future contracts
or subcontracts with the City, and the contract may be cancelled or voided in whole or in
part, and such other sanctions or penalties may be imposed or remedies invoked as
provided by statute or regulation.
During the performance of the contract, the Consultant agrees as follows:
A. That it will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, sexual orientation, marital status, national origin or
ancestry, or age or physical or mental disabilities that do not impair ability to work, and
further that it will examine all job classifications to determine if minority persons or
women are underutilized and will take appropriate affirmative action to rectify any such
underutilization. Consultant shall comply with all requirements of City of Evanston Code
Section 1-12-5.
B. That, in all solicitations or advertisements for employees placed by it on its
behalf, it will state that all applicants will be afforded equal opportunity without
discrimination because of race, color, religion, sex, sexual orientation, marital status,
national origin, ancestry, or disability.
VII. SEXUAL HARASSMENT POLICY
The Consultant certifies pursuant to the Illinois Human Rights Act (775 ILCS 5/2105
et. seq.), that it has a written sexual harassment policy that includes, at a minimum, the
13
following information:
A. The illegality of sexual harassment;
B. The definition of sexual harassment under State law;
C. A description of sexual harassment utilizing examples;
D. The Consultant's internal complaint process including penalties;
E. 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
F. Protection against retaliation as provided to the Department of Human Rights.
Vlll. CONSULTANT CERTIFICATIONS
A. Consultant acknowledges and agrees that should Consultant or its subconsultant
provide false information, or fail to be or remain in compliance with the Agreement, the
City may void this Agreement.
B. Consultant certifies that it and its employees will comply with applicable
provisions of the U.S. Civil Rights Act, Section 504 of the Federal Rehabilitation Act, the
Americans with Disabilities Act (42 U.S.C. Section 1201 et seq.) and applicable rules in
performance under this Agreement.
C. If Consultant, or any officer, director, partner, or other managerial agent of
Consultant, has been convicted of a felony under the Sarbanes-Oxley Act of 2002, or a
Class 3 or Class 2 felony under the Illinois Securities Law of 1953, Consultant certifies at
least five years have passed since the date of the conviction.
D. Consultant certifies that it has not been convicted of the offense of bid rigging or
bid rotating or any similar offense of any State in the U.S., nor made any admission of
guilt of such conduct that is a matter of record. (720 ILCS 5/33 E-3, E-4).
E. In accordance with the Steel Products Procurement Act, Consultant certifies steel
products used or supplied in the performance of a contract for public works shall be
manufactured or produced in the U.S. unless the City grants an exemption.
F. Consultant certifies that it is properly formed and existing legal entity, and as
applicable, has obtained an assumed name certificate from the appropriate authority, or
has registered to conduct business in Illinois and is in good standing with the Illinois
Secretary of State.
G. If more favorable terms are granted by Consultant to any similar governmental
entity in any state in a contemporaneous agreement let under the same or similar
financial terms and circumstances for comparable supplies or services, the more
favorable terms shall be applicable under this Agreement.
IX.
H. Consultant certifies that it is not delinquent in the payment of any fees, fines,
damages, or debts to the City of Evanston.
INTEGRATION
This Agreement, together with Exhibits A, B, C, and D sets forth all the covenants,
conditions and promises between the parties with regard to the subject matter set forth
herein. There are no covenants, promises, agreements, conditions or understandings
between the parties, either oral or written, other than those contained in this Agreement.
This Agreement has been negotiated and entered into by each party with the opportunity
to consult with its counsel regarding the terms therein. No portion of the Agreement shall
be construed against a party due to the fact that one party drafted that particular portion
as the rule of contra proferentem shall not apply.
In the event of any inconsistency between this Agreement, and any Exhibits, this
Agreement shall control over the Exhibits. In no event shall any proposal or contract
form submitted by Consultant be part of this Agreement unless agreed to in a writing
signed by both parties and attached and referred to herein as an Addendum, and in such
event, only the portions of such proposal or contract form consistent with this Agreement
and Exhibits hereto shall be part hereof.
IN WITNESS WHEREOF, the parties hereto have each approved and executed this Agreement
on the day, month and year first above written.
CTL GROUP
5400 Old Orchard Road
Skokie, IL 60077
By
Its: ���Ze51 Gct��. CZ
FEIN Number:
Date: 91
10
CITY OF EVANSTON
2100 Ridge Avenue
Evanston,
®I®L 60201
By:
Wally BoAewicz
Its: City Manager
Date: /6. 3- /'--�
Approved as to form;
M Grant Farrar
Corporation Counsel