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HomeMy WebLinkAboutSupport for Milestone Xprotect Citywide Camera Software Information SystemsCONSULTANT SERVICES AGREEMENT THIS AGREEMENT (hereinafter referred to as the "Agreement") entered into this /0 `L day of rh i't'l 2010, between the City of Evanston, an Illinois municipal corporation with offices at 2100 Ridge Avenue, Evanston Illinois 60201 (hereinafter referred to as the "City"), and Current Technologies, with offices at 1423 Centre Circle, Downers Grove, Illinois 60515 a ,L LLJ- ry r s corporation (hereinafter referred to as the "Consultant"). RECITALS WHEREAS, the City intends to retain the services of a qualified and experienced consulting firm to: Design a wireless network to support digital cameras for three zones in Evanston; Perform installation of power, cameras, network equipment, servers, software and storage; Provide three years of support for all equipment and software installed in conformance with the city's Request for Qualification (RFQ) 10-82 (hereinafter referred to as the "Project"), utilizing the services of the Consultant in accordance with this Agreement; and WHEREAS, this Agreement shall include the following exhibits which are attached hereto: A. Consultant's response to RFQ 10-82, attached as Exhibit A; B. The terms and conditions of Evanston RFQ 10-82 and the associated Addendums 1 and 2 plus Addendum 2 questions and answers 1-5 are incorporated herein by reference. NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows: SECTION 1 -Services and Duties of the Consultant 1.1 The Consultant shall perform professional services and provide equipment in accordance with Exhibit A; The Consultant retains the right to control the manner of performance of the services provided for in this Agreement and is an independent contractor and not an employee of the City. All employees and sub consultants or subcontractors of the Consultant shall likewise not be considered to be employees of the City. Consultant is solely responsible for the means and methods of all work perfonned under the terms of this Agreement for this Project. 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. 1.2 The Consultant shall serve as the City's vendor in those phases of the Project to which this Agreement applies, and provide consultation and advice to the City during the performance of its services. Evanston Digital Camera Project Agreement -Version 1 Page 1 of 17 1.3 The Consultant shall not have any public or private interest and shall not acquire directly or indirectly any such interest which conflicts in any manner with the performance of its services under this Agreement. 1.4 The Consultant shall designate, in writing, a person to act as its Project Manager for the work to be performed under this Agreement. Such person shall have complete authority to transmit instructions, receive information, interpret and define the Consultant's policies and decisions with respect to the work covered by this Agreement. 1.5 The Consultant shall employ only persons duly licensed by the State of Illinois to perform the professional services required under this Agreement for which applicable Illinois law requires a license, subject to prior approval of the City. The Consultant shall employ only well qualified persons to perform any of the remaining services required under this Agreement, also subject to prior approval of the City. The City reserves the right to require replacement of Consultant personnel for any reason. Consultant will replace the unacceptable personnel at no charge to the City. 1.6 The Consultant shall comply with all federal, state and local laws, statutes, ordinances, rules, regulations, orders or other legal requirements now in force or which may be in force during the term of this Agreement. Effective 1/l/2010, 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 (5 working days with a possible 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, are applicable. 1.7 The Consultant acknowledges that it shall enforce and comply with all applicable Occupational Safety and Health Administration standards (OSHA) for this Project in effect as of the date of the execution of this Agreement, or as otherwise promulgated by OSHA in the future, during the pendency of this Project. Consultant shall enforce all such standards and ensure compliance thereto as to its own agents and employees, and as to the agents and employees of any sub consultant or subcontractor throughout the course of this Project. Consultant is solely responsible for enforcing and complying with all applicable safety standards and requirements on this Project, and is solely responsible for correcting any practices or procedures which do not comply with the applicable safety standards and requirements for this Project. Specific safety requirements applicable to this Project are set forth as items a. through e. herein below. Additionally, such safety requirements shall be made a part of any sub consultant or subcontractor agreement: a. Individuals engaged in ground level field activities on or within 8 meters (25 feet) of a pavement open to traffic shall wear high visibility vests of equivalent high visibility outer garments. Flaggers shall wear high visibility vests at all times; Evanston Digital Camera Project Agreement -Version 1 Page 2 of 17 b. Individuals shall wear either hard-hats/caps of high visibility orange when engaged in field activities within 8 meters (25 feet) of a pavement open to traffic or under construction, when not in vehicles or self-propelled mobile equipment; C. Individuals shall wear protective hard-hats/caps when they are in an area where there is a potential for injury from falling, moving, swinging or flying objects; d. Safety -toe footwear shall be worn by the individuals engaged in operations where the danger of injury to the foot may occur; and e. Individuals shall wear appropriate clothing for the work to be performed, including shirts when in public view. 1.8 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. The Consultant shall submit to the City a draft sub consultant agreement for City review and approval prior to the execution of such an agreement. Any previously entered into sub consultant agreement(s) are attached as Exhibit B. If the Consultant subcontracts any of the services to be performed under this Agreement, the sub consultant 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 sub consultant's work. 1.9 The Consultant shall cooperate fully with the City, other City consultants, 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. The City will be responsible to for the Consultant's time and expenses involved in any such investigation, hearing or meetings. 1.10 The Consultant shall submit a progress report each month this Agreement is in force. The report shall include the following items: a. A summary of the Consultant's project activities, and any sub consultant project activities that have taken place during the invoice period; b. A summary of the Consultant's project activities and any sub consultant project activities, that shall take place during the next invoice period; C. A list of outstanding items due to or from the City; and d. A status of the project schedule. 1.11 The Consultant shall perform the professional services required under this Agreement pursuant to high quality industry standards expected by the City. The Consultant shall apply for and receive the appropriate permits before performing any work in the City's Right of Way. The Consultant shall also provide the appropriate permit drawings for Building Permits to be issued for the project. The City will assist the Consultant with obtaining the Evanston Digital Camera Project Agreement -Version 1 Page 3 of 17 appropriate building and right-of-way permits. 1.12. The Consultant shall provide as -built drawings, in an electronic format for all locations where equipment has been installed pursuant to Exhibit A. 1.13 Consultant recognizes that proper cleanup and removal of construction debris is an important safety consideration. The Consultant shall be responsible for construction site (area) cleanup and removal of all construction debris in accordance with city approved disposal practices. Contractor is responsible for identifying and removing all hazardous material and waste which it uses and generates. 1.14 The Consultant is required to furnish a performance bond in the amount of $341,385.00. The performance bond must be for the entire term of the Agreement. The performance bond must be furnished by a company licensed to do business in the State of Illinois. Such bond must be furnished to Purchasing within 10 calendar days of contract award notice and prior to contract commencement. The performance bond shall stay in effect during the installation of all materials as set forth herein, but shall be reduced during the installation in an amount equal to the amount paid to the Consultant during the installation with each draw. 1.15 The 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). 1.16 The 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 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. 1.17 Should the City decide to contract with Consultant to extend maintenance beyond three years, Consultant agrees that cost of maintenance will not increase by more than 3% for the first year of maintenance renewal. In addition, increases for subsequent years will be limited to a maximum of 3% with a total maximum increase of 12% over the life of the equipment. SECTION 2 -Additional Services 2.1 If the representative of the City responsible for the Project verbally requests the Consultant to perform additional services, the Consultant shall confirm in writing that the services have been requested and that such services are additional services. Failure of the City to respond to the Consultant's confirmation of said services within thirty (30) calendar days of receipt of the notice shall be deemed rejection of, and refusal to pay for the additional services. Consultant shall not perform any additional services until City has confirmed approval of said additional services in writing. If authorized in writing by the City, the Consultant shall furnish, or obtain from others, additional services of the following types, which shall be paid for by the City as set forth in Section 5 Evanston Digital Camera Project Agreement -Version 1 Page 4 of 17 of this Agreement: a. Additional Services due to significant changes in scope of the Project or its design, including, but not limited to, changes in size, complexity or character of construction, or time delays for completion of work when such delays are beyond the control of the Consultant; b. Revisions of previously approved studies, reports, design documents, drawings or specifications; c. Preparation of detailed renderings, exhibits or scale models for the Project; d. Investigations involving detailed consideration of operations, maintenance and overhead expenses for the preparation of rate schedules, earnings and expense statements, feasibility studies, appraisals and valuations, detailed quantity surveys of material and labor, and material audits or inventories required for certification of force account construction performed by the City; e. Preparation of substantial change orders requested by the City; f. Additional Services in connection with the Project including services normally furnished by the City and services not otherwise provided for in this Agreement; g. Preparing to serve or serving as an expert witness for the City in any litigation or other proceeding involving the Project; h. Additional services and costs necessitated by out-of-town travel required of the Consultant other than visits to the Project sites as required by Section 1; and, i. Additional services as set forth in Section 1.9 above. 2.2 The City may, upon written notice, and without invalidating this Agreement, require changes resulting in the revision or abandonment of work already performed by the Consultant, or require other elements of the work not originally contemplated and for which full compensation is not provided in any portion of this Agreement. Any additional services, abandonment of services which were authorized by the City, or changes in services directed by the City which result in the revision of the scope of services provided for in Exhibit A that cause the total payments due Consultant under this Agreement to exceed $341,385.00 must be addressed in an amendment to this Agreement. 2.3 The City may, upon written notice, and in agreement with Consultant, change camera locations and placement as defined in Exhibit A providing such changes have no impact on overall cost of the project. SECTION 3 — The Citv's Responsibilities 3.1 The City shall designate, in writing, a person to act as its Project Manager for the work to be performed under this Agreement. Such person shall have complete 'authority to transmit instructions, receive information interpret and define the City's policies and decisions with respect to the work covered by this Agreement. The Project Manager shall not be responsible for any means Evanston Digital Camera Project Agreement -Version 1 Page 5 of 17 and methods of any and all work done on the Project, nor be responsible for construction site cleanup or safety compliance on this Project. 3.2 The City shall assist the Consultant by placing at its disposal all available information pertinent to the site of the Project, including previous reports and any other data relative to design and construction of the Project. 3.3 The City shall make all reasonable efforts to provide access to, and provisions for, the Consultant to enter upon public and private lands as required for the Consultant to perform its work under this Agreement. 3.4 The City shall examine all studies, reports, sketches, estimates, specifications, drawings, proposals and other documents presented by the Consultant and shall render in writing decisions pertaining thereto within a reasonable time so as not to delay the work of the Consultant. 3.5 The City shall provide such legal, accounting and insurance counseling services as may be required by the City, relative to the City for the Project. 3.6 The City shall give prompt written notice to the Consultant whenever the City observes or otherwise becomes, aware of any defect in the Project. 3.7 The City shall furnish or direct the Consultant to provide, at the City's expense, necessary additional services pursuant to Section 2 of this Agreement, or other services as required. 3.8 The City shall give the Consultant credit for its services performed under this Agreement in its official communications, published articles and project identification signage at the discretion of the City. 3.9 The City shall evaluate the Consultant's and any sub consultant's performance (interim and final). Timeliness in meeting the Project schedule and the overall relationship with the Consultant are factors that will be considered in the Consultant's performance rating. An unfavorable performance rating shall be a factor when future assignments are being considered. The City shall share all such evaluations and service ratings to the Consultant upon completion of the same. The Consultant shall be permitted to submit written response City for future consideration. 3.10 The City makes no representation or warranty of any nature whatsoever as to the accuracy of information or documentation provided by the City to the Consultant which were generated or provided by third parties. SECTION 4 -Period of Service 4.1 The Consultant shall commence work on the Project within ten (10) business days of the signing of this contract and after supplying the City with the Consultant's performance bond. The City shall determine when the Consultant has completed the work required pursuant to this Agreement. Consultant recognizes time is of the essence regarding its performance on this Proiect. Evanston Digital Camera Project Agreement -Version 1 Page 6 of 17 SECTION 5 -Payment For Services and Reimbursements, 5.1 Upon completion of the Design the Consultant shall invoice the City for $1,250. The invoice will be submitted for payment approval at the next City Council meeting on the regular bills list. Once approved by the City Council, the invoice will be paid within two weeks. This process generally takes between 30 and 45 days. 5.2 upon acceptance of design by the City, the Consultant will issue a down payment invoice for $30,000. All equipment orders will be invoiced immediately by Consultant, and reviewed promptly by City and the City shall promptly process the invoice for appearance on the City's bills list for approval at the next City Council meeting. The Consultant shall provide a detailed invoice that relates invoiced items to the Consultant's response to RFQ 10-82 in both quantity and unit cost. Consultant will receive physical payment only after equipment ordered is onsite, inventoried and approved by City Project Manager. Within the first five business days of each month, the Consultant shall invoice the City for labor work completed during the previous month. The Consultant shall provide a detailed invoice that relates invoiced items to the Consultant's response to RFQ 10-82 in both quantity and unit cost. The City shall review and approve the invoice by the I5 n day of the month. Any discrepancies in the monthly invoice shall be promptly brought to the attention of the Consultant by the City Project Manager and efforts shall be made to resolve said discrepancies between the City and Consultant by the 15 day of the month. In the event the City and Consultant cannot resolve invoice discrepancies items in dispute will be removed from the invoice and the City shall approve the remainder of the. The City shall have the right to withhold the first $30,000 in labor billing to be paid at the completion of the project upon Consultant fulfilling all necessary duties and requirements to successfully hand over the project to the City. The City shall promptly process the invoice for appearance on the City's bills list for approval at the next City Council meeting. Payment will be made as soon as possible following the City Council meeting in which the item appeared on the bills list. Compensation in excess of the total contract amount specified in this Agreement will not be allowed unless justified in the City's sole judgment and authorized in advance as provided for in Section 2 of this Agreement. Compensation for improper performance by the Consultant is disallowed. 5.3 In the event of termination by the City of this Agreement pursuant to paragraph 6.1 after completion of any phase of the basic services, fees due the Consultant for services rendered through such phase shall constitute final payment for such services, and no further fees shall be due to the Consultant. In the event of such termination by the City during any phase of the basic services, the Consultant shall be paid for services rendered on the basis of the proportion of work completed on the phase to date of termination. in the event of any such termination, the Consultant shall also be reimbursed for charges it incurred as a result of any work perfonned by any sub consultants to the date of termination, and shall also be paid for all unpaid additional services and reimbursable expenses not in dispute. In such event, the performance bond will be reduced to the actual amount of Evanston Digital Camera Project Agreement -Version I Page 7 of 17 compensation paid to the Consultant and as required under Section 1.14 above. 5.4 The City shall have the right to withhold payment to the Consultant due to the quality of a portion or all of the work performed hereunder not in accordance with the requirements of this Agreement or to the City's satisfaction or the Consultant's failure or refusal to perform any of its obligations hereunder. In the event of such an occurrence or claim, the City shall provide notice of the claimed defect or deficiency in workmanship to Consultant; Consultant shall have seventy (72) hours to take steps to correct the defect or deficiency (subject to extension due to unavailability of materials). Failure to provide notice and opportunity to cure will constituted a waiver of the right to withhold payment. 5.5 Upon completion of the work performed by the Consultant, prior to the submission of a request for final payment, the City and Consultant shall perform a final acceptance test and review of equipment and software installed pursuant to the Agreement. A punch list of items outstanding will be jointly developed by the City and Consultant. In addition, the Consultant shall submit as -built drawings for the project for the City to approve. The Consultant shall promptly resolve punch list items to the satisfaction of the City. The City shall review and the Consultant modify; as necessary any as -built drawings to the satisfaction of the City. Punch list items and as -built drawings must be approved by the City prior to the Consultant submitting their final invoice for payment. 5.6 The Consultant shall submit an affidavit and a final waiver of its lien, and all final waivers of liens of any sub consultants or subcontractors, if applicable, with its final invoice, stating that all obligations incurred in performance of the professional services have been paid in full. The affidavit will also include a statement stating that the professional services were performed in compliance with the terns of the Agreement. The affidavit and all final waivers of liens shall be on a form prescribed by the City. 5.7 The Consultant may invoice for the three years of service and support at the completion of the project. The three years of service and support will begin 90 days after completion of the Project. 5.8 Invoices All invoices shall be sent to: City of Evanston Police Department Ron Morelli 1454 Elmwood Evanston, Illinois 60201 With a copy to: City of Evanston Richard Mertz 2100 Ridge Avenue Evanston, Illinois 60201 SECTION 6 — Termination 6.1 This Agreement may be terminated at any time upon thirty (30) days written notice by either party in the event of substantial failure to perform in accordance with the terms hereof by the other party through no fault of the tenninating party. In addition, the City shall have the right to Evanston Digital Camera Project Agreement -Version 1 Page 8 of 17 terminate this Agreement upon thirty (30) days written notice for any reason. Mailing of such notice shall be equivalent to personal notice and shall be deemed to have been given at the time of receipt. 6.2 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, and such other items specifically identified by the City. Upon receipt of said items and concurrent therewith, the Consultant shall be paid for labor and experience incurred to the date of termination as provided in Section 5. If this Agreement is terminated due to the City's substantial failure to perform, the Consultant shall be paid for labor and expenses incurred to date as provided in Section 5, subject to set off for any damages, losses or claims against the City resulting from or relating to Consultant's performance or failure to perform under this Agreement. This Agreement is subject to termination by either party if either party is restrained by a state or federal court of competent jurisdiction from performing the provisions of this Agreement. Upon such termination, the liabilities of the parties to this Agreement shall cease, but they shall not be relieved of the duty to perform their obligations through the date of termination. 6.3 If because of death or any other occurrence, including, but not limited to, Consultant becoming insolvent, it becomes impossible for any principal or principals of the Consultant to render the services set forth in this Agreement, neither the Consultant, nor its surviving principals shall be relieved of their obligations to complete the professional services. However, in the event of such an occurrence, the City at its own option may terminate this Agreement if it is not furnished evidence that competent professional services can still be furnished as scheduled. SECTION 7 — Insurance 7.1 The Consultant shall, at its own expense, secure and maintain in effect throughout the duration of this contract, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, employees or subcontractors. The Consultant must furnish Certificates of Insurance to the City before staff recommends award of the contract to City Council. If requested, the Consultant shall give the City a certified copy(ies) of the insurance policies evidencing the amounts set forth in Section 7.2. The policies must be delivered to the City within two weeks of the request. All insurance policies shall be written with insurance companies licensed or authorized to do business in the State of Illinois and having a rating of not less than A-VII according to the A.M. Best Company. Should any of the insurance policies be canceled before the expiration date, the issuing company will mail sixty (60) days written notice to the City. The Consultant shall require and verify that all subcontractors maintain insurance meeting all of the requirements stated herein. Any deductibles or self -insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the City, its officers, officials, employees and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. 7.2 Consultant shall carry and maintain at its own cost with such companies as are reasonably de acceptable to City all necessary liability insurance (which shall incluas a minimum the Evanston Digital Camera Project Agreement -Version 1 Page 9 of 17 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, which designates the City as an 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. Work cannot commence until Consultant first provides the City with certificates of insurance and, if requested by City, certified copies of the policies of insurance evidencing the coverage, and the amounts set forth in this Section. These certificates of insurance and insurance policy(ies) shall explicitly designate the City as an additional insured for this Project. If Consultant fails to give the City such certificates of insurance as referenced herein, and a certified copy of the policy(ies) (if requested), that shall constitute a material breach by Consultant of this Agreement. Consultant's certificate of insurance shall contain a provision that the coverage afforded under the policy(s) will not be canceled or reduced without sixty (60) days prior written notice (hand delivered or registered mail) to City. Consultant understands that the acceptance of Certificates of Insurance, policies and any other documents by the City in no way releases the Consultant and its sub consultants or 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 may seek to have proprietary information submitted by it to the City withheld from disclosure to third parties to the extent that such information falls within the definition and provisions of Section 7(1)(g) of the Illinois Freedom of Information Act (5 ILLS 140/1 et seq), and so long as such information has been furnished to the City under a proprietary claim as provided in said Act. SECTION 8 — Indemnification 8.1 The 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 reasonable 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 sub consultants, 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 not apply to liability that results from the City's actions be it negligent, reckless, willful or otherwise. This provision shall survive completion, Evanston Digital Camera Project Agreement -Version 1 Page 10 of 17 expiration or termination of this Agreement. 8.2 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 reasonable 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. The City shall consult with the Consultant as to selection of their agents, attorneys and experts and if the City is seeking reimbursement from the Consult of the such expenses, the Consultant shall have the sole right to approve or select alternative agents, attorneys and/or experts. 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 Project 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 (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. 8.3 The 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 sub consultants' or subcontractors' 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 there from. This provision shall survive completion, expiration or termination of this Agreement. 8.4 The Consultant shall not be responsible for any delay in the performance or progress of the Project, or liable for any costs or damages sustained by the City resulting from such delay, caused by any errors, omissions and/or negligent acts of the City or their agents, or by changes ordered in the work. In the event of such delay, the Consultant will proceed with due diligence to alleviate the delay and continue the performance of its obligations under this Agreement. 8.5 The Consultant shall not be responsible for any damages, which may occur as a result of any modifications made to the plans of the Consultant by others without the Consultant's knowledge, or for damages that may occur because of the improper or negligent acts of others. 8.6 The City will release and hold harmless the Consultant for delays or losses experienced by the City which result from the discovery of concealed conditions, as defined below, which require additional design, disposal, mitigation or other remedial action. When such discovery warrants the Evanston Digital Camera Project Agreement -Version 1 Page 11 of 17 need for additional services, those services will be considered additional under Section 2 of this Agreement. For the purposes of this Agreement, the term "Concealed Condition" is defined as a condition substantially at variance with the conditions disclosed by the reports and documents provided to the Consultant by the City, or otherwise in the Consultant's possession or available to the Consultant in the normal course of business, or conditions which are of an unusual nature, differing materially from conditions ordinarily encountered and generally recognized as inherent in the nature of the work encompassed within the Project. It is Consultant's responsibility to demonstrate the existence of a Concealed Condition and the Consultant shall give written notice to the City within three (3) business days of the discovery of a Concealed Condition or shall be deemed to have waived the issue. 8.7 The City will release and hold harmless the Consultant from delays or costs experienced by the City which result from the discovery of hazardous wastes, contaminants or pollutants which require additional design, disposal, mitigation or other remedial action. 8.4 The provisions of this Section 8 shall survive completion, expiration or termination of this Agreement. SECTION 9-Drawines and Documents 9.1 Any drawings, survey data, reports, studies, specifications, estimates, maps, plans, computations, and other documents required to be prepared by the Consultant for the Project shall be considered Works for Hire and the sole property of the City. 9.2 The Consultant and its sub consultant shall maintain for a minimum of three (3) years after the completion of this Agreement, or for three (3) years after the termination of this Agreement, whichever comes later, adequate books, records and supporting documents to verify the amounts, recipients and uses of all disbursements of funds passing in conjunction with the Agreement. The Agreement and all books, records and supporting documents related to the Agreement shall be available for review and audit by the City and the federal funding entity, if applicable, and the Consultant agrees to cooperate fully with any audit conducted by the City and to provide full access, to all materials. Failure to maintain the books, records and supporting documents required by this subsection shall establish a presumption in favor of the City for recovery of any funds paid by the City under the Agreement for which adequate books, records and supporting documentation are not available to support their purported disbursement. SECTION 10 -Validity of Fees 10.1 The Consultant fees set forth in Exhibit A shall be valid provided that a Notice to Proceed for the Project is issued no later than fifteen (15) days after the City receives all signed contracts, insurance documents and bonds. If this condition is not met, the consulting fees shall be renegotiated to reflect cost escalation. SECTION 11 -Successors and Assiens 11.1 The City and the Consultant each bind themselves and their partners, successors, executors, administrators and assigns to the other party of the Agreement and to the partners, successors, executors, administrators and assigns of such other party in respect to all covenants of Evanston Digital Camera Project Agreement -Version 1 Page 12 of 17 this Agreement. Neither the City nor the Consultant shall assign, sublet or transfer its interest in this Agreement without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of any public body, which may be a party hereto, nor shall it be construed as giving any right or benefits hereunder to anyone other than the City and the Consultant. SECTION 12 -Force Majeure 12.1 Whenever a period of time is provided for in this Agreement for the Consultant or the City to do or perform any act or obligation, neither party shall be liable for any delays or inability to perform if such delay is due to a cause beyond its control and without its fault or negligence including, without limitation: (1) acts of nature; (2) acts or failure to act on the part of any governmental authority other than the City or Consultant, including, but not limited to, enactment of laws, rules, regulations, codes or ordinances subsequent to the date of this Agreement; (3) acts or war; (3) acts of civil or military authority; (4) embargoes; (5) work stoppages, strikes, lockouts, or labor disputes; (6) public disorders, civil violence or disobedience; (7) riots, blockages, sabotage, insurrection or rebellion; (8) epidemics; (9) terrorist acts; (10) fires or explosions; (11) nuclear accidents; (12) earthquakes, floods, hurricanes, tornadoes, or other similar calamities; (13) major environmental disturbances; (14) vandalism or (15) unavailability of materials or equipment. If a delay is caused by any of the Force Majeure circumstances set forth above, the time period shall be extended for only the actual amount of time said party is so delayed. Further, either party claiming a delay due to an event of force majeure shall give the other party written notice of such event within three (3) business days of its occurrence or it shall be deemed to be waived. 12.2 In the event the Consultant is delay from performing by delays that are a result of the City's failure to perform or City's modification of the scope of work, the time period for the Consultant to perform shall be extended pro tanto. In the event it is discovered a hidden condition of the underlying work where the Consultant is to install materials or equipment, the time period for performance shall be extended to compensate the delay in order to correct the underlying work/structure. 12.3 Any delays in performance as set forth in this Section 12, shall eliminate any claims for delay damages of any kind or nature by either party. SECTION 13 -Amendments and Modifications 13.1 Except as otherwise provided herein, the nature and scope of services specified in this Agreement may only be modified by written amendment to this Agreement, approved by both parties. This Agreement may be modified or amended from time to time provided, however, that no such amendment or modifications shall be effective unless reduced to writing and duly authorized and signed by the authorized representatives of the parties. SECTION 14 -Standard of Care 14.1 The Consultant shall perform all of the provisions of this Agreement to the reasonable satisfaction of the City. The City shall base its determination of the Consultant's' fulfillment of the scope of the work in accordance with accepted professional engineering standards. The Consultant shall perform all of the provisions of this Agreement with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar conditions. Evanston Digital Camera Project Agreement -Version 1 Page 13 of 17 14.2 The Consultant shall be responsible for the accuracy of its professional services under this Agreement and shall promptly make revisions or corrections resulting from its errors, omissions, or negligent acts without additional compensation. The City's acceptance of any of the Consultant's professional services shall not relieve the Consultant of its responsibility to subsequently correct any such errors or omissions. (a) If a Consultant has provided the City with specifications for this Project which are determined to be incorrect or which require revision during the solicitation process (including but not limited to Requests for Proposals, Requests for Qualifications, or bids), the Consultant shall make such corrections or revisions to the specifications at no cost to the City. Further, upon receipt of an invoice from the City, the Consultant shall promptly reimburse the City for the reasonable costs associated with the preparation and dissemination of said corrections or revisions to appropriate parties, including but not limited to preparation of the corrected or revised documents, and printing and distribution costs. 14.3 The Consultant shall respond to the City's notice of any errors or omissions within 24 hours. The Consultant shall be required to promptly visit the Project site if directed by the City. 14.4 The Consultant shall comply with all federal, state, and local statutes, regulations, rules, ordinances, judicial decisions, and administrative rulings applicable to its performance under this Agreement. 14.5 If, within one year after the Consultant has received a final payment under this Agreement, any of the work is found to be not in accordance with the requirements of the Agreement, or in need of repair, the Consultant shall correct it promptly after receipt of written notice from the City to do so at no cost to the City. This remedy is in addition to any other remedies the City may have under this Agreement or the law. 14.6 The provisions of this Section 14 shall survive the completion, expiration or termination of this Agreement. SECTION 15 -Savings Clause 15.1 If any provision of this Agreement, or the application of such provision, shall be rendered or declared invalid by a court of competent jurisdiction, or by reason of its requiring any steps, actions or results, the remaining parts or portions of this Agreement shall remain in full force and effect. SECTION 16 -Cautions and Paraeraoh Headings 16.1 Captions and paragraphs headings are for convenience only and are not a part of this Agreement and shall not be used in construing it. SECTION 17 -Non-Waiver of Riehts 17.1 No failure of either party to exercise any power given to it hereunder or to insist upon strict compliance by the other party with its obligations hereunder, and no custom or practice of the parties at variance with the terns hereof, nor any payment under this Agreement shall constitute a Evanston Digital Camera Project Agreement -Version 1 Page 14 of 17 waiver of either party's right to demand exact compliance with the terms hereof. SECTION 18 -Entire Agreement 18.1 This Agreement 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 on account of the fact that that party drafted that particular portion. SECTION 19 -Governing Law 19.1 This Agreement shall be governed by the laws of the State of Illinois both as to interpretation and performance. Venue for any action arising out of or due to this Agreement shall be in the Circuit Court of Cook County, Illinois. SECTION 20 — Ownership of Contract Documents 20.1 Consultant is specifically prohibited from using in any form or medium, the name or logo of the City for public advertisement, unless expressly granted written permission by the City. Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with this Project is not to be construed as publication in derogation of the City's reserved rights. SECTION 21— Notice 21.1 Any notice required to be given by this Agreement shall be deemed sufficient if made in writing and sent by certified mail, return receipt requested, or by personal service, to the persons and addresses indicated below or to such other addresses as either party hereto shall notify the other party of in writing pursuant to the provisions of this subsection: If to the City: City of Evanston Project Manager — RPQ 10-82 Richard Mertz 2100 Ridge Avenue Evanston, IL 60201 If to the Consultant: Current Technologies Project Manager — Evanston Camera Project 1423 Centre Circle Downers Grove, Illinois 60515 Evanston Digital Camera Project Agreement -Version 1 Page 15 of 17 21.2 Mailing of such notice as and when provided above shall be equivalent to personal notice and shall be deemed to have been given at the time of mailing. SECTION 22 — Severabilitv 22.1 Except as otherwise provided herein, the invalidity or unenforceability of any particular provision, or part thereof, of this Agreement shall not affect the other provisions, and this Agreement shall continue in all respects as if such invalid or unenforceable provision had not been contained herein. SECTION 23 -Execution of Agreement 23.1 This Agreement shall be signed last by the City Manager and the City Clerk. The City Clerk shall affix the date on which they sign this Agreement on Page I hereof which date shall be the effective date of this Agreement. The City hereby represents and warrants that the foregoing individual actions shall constitute official and binding action by the City. SECTION 24 — Counterparts 24.1 For convenience, this Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original. SECTION 25 — Authorizations 25.1 The Consultant's authorized representatives who have executed this Agreement warrant that they have been lawfully authorized by the Consultant's board of directors or its bylaws to execute this Agreement on its behalf. The City Manager and City Clerk warrant that they have been lawfully authorized to execute this Agreement. The Consultant and the City shall deliver upon request to each other copies of all articles of incorporation, bylaws, resolutions, ordinances or other documents which evidence their legal authority to execute this Agreement on behalf of their respective parties. Evanston Digital Camera Project Agreement -Version 1 Page 16 of 17 SECTION 26 — Solicitation of Comoanv Emnlovees 26.1 Without prior written consent of the Consultant, neither the City nor those of the City's representatives, throughout the life of the agreement and for a one year period from the date the contract ends, solicit or cause to be solicited the employment of, nor hire, any employee of the Consultant or its affiliates with whom the City has had contact or who became known to the City in connection with the Work. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their duly authorized representatives on the day and date first written above. CITY OF EVANSTON By: Wally Bobkiewicz Its: City Manager ATTEST: F� By:� / Rodney Greene. Its: City Clerk Approved as to Form: !/ (� x.� W. Grant Farrar, City of Evanston Corporation Counsel CONSULTANT Its:�esl4ty� NOTARY: BY: a?A A L11 FFICIAL SEAL NSEY WALL VSLIC • STATE OF ILLINOIS Its: �P0,AL\iv% (�( i\21Q,{ ISSIONEXpIFE$:Q?/2?h3 Evanston Digital Camera Project Agreement -Version 1 Page 17 of 17