HomeMy WebLinkAboutService Center Parking Deck Repair ProjectCity of
Evanstorr
The parties referenced herein desire to enter into an agreement for professional services for
Service Center Parking Deck Repair Project, Bid #12-65
THIS AGREEMENT (hereinafter referred to as the "Agreement") entered into this L day of
e 6A _ 2012, between the City of Evanston, an Illinois municipal corporation with offices
ocated at-2100 Ridge Avenue, Evanston Illinois 60201 (hereinafter referred to as the "City"), and G. A.
Johnson & Son, with offices located at 828 Poster Street, Evanston, Illinois 60201, (hereinafter referred
to as the "Contractor"). Compensation (the "Compensation") for all basic services provided by the
Contractor pursuant to the terms of this Agreement shall not exceed $554,880.
Revision October 2011
SERVICE CENTER PARKING DECK REPAIRS AGREEMENT
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TABLE OF CONTENTS
1 Services and Duties of the Contractor................................................................................ 3
2 Standard Certifications ............. ....... ........ ........................................................... 6
3 Additional Services/Change Orders. . A * M 4 . q M E V E E E E M 4 & 0 k P I M M . a * 4 4 4 4 9
4 Bonds .................................................................................. ............................. 11
5 Liquidated Damages in the Event Contractor Fails to Complete the Work ....................1 12
6 The City's Responsibilities ...................................................................... ................... 12
7 Period of Service............................................................................................................... 12
8 Payment for Services and Reimbursements...................................................................... 13
9 Notice and Cure/Termination.....................................................0.......................... 14
10 Insurance.......................................................................................................................... 15
11 Indemnification.............................................................................................................0... 17
12 Drawings and Documents...............................................................................................M. 18
13 Successors and Assigns", ....... 4.11,11111, .............................................................................. 18
14 Force Majeure....................................................................1...... ......... .......... 18
15 Amendments and Modifications ............... ............... ..:....•......... ........................................ 19
16 Standard of Care & Warranty........................................................................................... 19
17 Savings Clause.................................................................................................................. 20
18 Non -Waiver of Rights',,"",., .... llb,111111M.m ... ............. ..... v .... w,w ............... 21
19 Entire Agreement.............................................................................................................. 21
20 Governing Law................................................................................................................. 21
21 Ownership of Contract Documents................................................................................... 21
22 Notice................................................................................................................................21
23 Severability.......................................................................................................................22
24 Execution of Agreement................................................................................................... 22
25 Counterparts......................................................................................................................22
26 Authorizations...................................................................................................................22
27 Time of Essence................................................................................................................ 22
SERVICE CENTER PARKING DECK REPAIRS AGREEMENT
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WHEREAS, the City intends to retain the services of a qualified and experienced
contractor for the following:
Structural and waterproofing repairs to the Evanston Service Center, located at 2020
Asbury Avenue, Evanston, Illinois.
hereto:
WHEREAS, this Agreement shall include the following documents which are attached
a) City of Evanston Bid 12-65, attached as Exhibit A.
b) Contractor's response to Bid 12-65, attached as Exhibit B.
c) Any subcontractor subcontracts related to this Agreement, attached as Exhibit C.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
1 Services and Duties of the Contractor
1.1 The Contractor shall perform professional services and provide equipment (the
"Work") in accordance with Exhibits A, B, C and D. The Contractor retains the right to control
the manner of performance of the services provided for in this Agreement and is an independent
contractor and not agent or an employee of the City. All employees and subcontractors of the
Contractor shall likewise not be considered to be employees of the City. Contractor is solely
responsible for the means and methods of all work performed under the terms of this Agreement
for this Project ("the Project"). Contractor 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. 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. Contractor acknowledges and agrees that should Contractor or its
subcontractors provide false information, or fail to be or remain in compliance with this
Agreement, the City may void this Agreement.
1.2 The Contractor warrants and states that it has read the Contract Documents, and
agrees to be bound thereby, including all performance guarantees as respects Contractor's work
and all indemnity and insurance requirements. Contractor further affirms that it has visited the
Project site and has become familiar with all special conditions, if any, at the Project site.
Contractor shall perform the Work and its obligations under this Agreement in accordance with
and subject to the Contract Documents to the full extent that each such provision is applicable to
the Work.
Contractor shall take necessary precautions to properly protect the Work of others, if any,
from damage caused by operations under this Agreement. In addition, Contractor shall protect
the Work during normal or adverse weather conditions until the Project is complete and accepted
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by the City or until Contractor has fully completed its work under this Agreement. Contractor's
obligations include, but are not limited to, placing and adequately maintaining at or about the
site, sufficient guards, barricades, lights, and enclosures to protect the Work.
1.3 The Contractor 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 Contractor 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 Contractor's policies and
decisions with respect to the work covered by this Agreement.
1.5 The Contractor 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 Contractor 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
Contractor, subcontractor, or supplier personnel for any reason. Contractor will replace the
unacceptable personnel at no charge to the City. For all solicitations or advertisements placed by
or on behalf of Contractor for employees for this Project it will state that the Contractor is an
Equal Opportunity Employer.
1.6 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
Contractor's control, the Contractor 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
Contractor 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. Contractor
shall indemnify and defend the City from and against all claims arising from the City's
exceptions to disclosing certain records which Contractor 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.
1.7 The Contractor 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
Contractor may, upon request of the City, submit to the City a draft subcontractor agreement for
City review and approval prior to the execution of such an agreement. Any previously entered
into subcontractor agreement(s) are attached as Exhibit C. If the Contractor subcontracts any of
the services to be performed under this Agreement, the subcontractor agreement shall provide
that the services to be performed under any such agreement shall not be sublet, sold, transferred,
SERVICE CENTER PARKING DECK REPAIRS AGREEMENT
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assigned or otherwise disposed of to another entity or person without the City's prior written
consent. The Contractor shall be responsible for the accuracy and quality of any subcontractor's
work.
1.8 The Contractor 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. Contractor 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.
1.9 The Contractor 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
taking effect during the pendency of this Project. Contractor 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 subcontractor throughout the course of this Project. Contractor 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.
1.10 The Contractor shall submit to the City a progress report each month this
Agreement is in effect. The report shall include the following items:
a) A summary of the Contractor's project activities, and any subcontractor project activities
that have taken place during the invoice period;
b) A summary of the Contractor's project activities and any subcontractor 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 Contractor shall perform the work required under this Agreement pursuant to
high quality industry standards expected by the City. The Contractor shall apply for and receive
all appropriate permits before performing any work in the City. The Contractor shall also provide
the appropriate permit drawings for Building Permits to be issued for the Project, if said permits
are obligated by the Project. The City will assist the Contractor with obtaining the appropriate
building and right-of-way permits.
112 The Contractor shall provide drawings of record, in the following 3 electronic
formats for all locations where equipment has been installed and/or work has been performed.
The electronic formats required by this Section 1.12 are Auto Cad Version 2007, ArtView and
PDF.
1.13 Contractor recognizes that proper cleanup and removal of construction debris is
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an important safety consideration. The Contractor shall be solely responsible for daily
construction site/area cleanup and removal of all construction debris in accordance with City -
approved disposal practices. Contractor shall be solely responsible for identifying and removing
at its expense all hazardous material and waste which it uses and generates.
1.14 To the extent that there is any conflict between a provision specified in this
Agreement, with a provision specified in any of the other Contract Documents, as defined in
Section 1.15, this Agreement shall control. The City and the Contractor may amend this Section
1.16 as provided by Section 15 hereinbelow.
The Contractor acknowledges and agrees that the City has no retained control over any of
the Work done pursuant to this Agreement, and that the City is expressly exempt from the
retained control exception as defined in the Restatement of Torts, Second, Section 414. This
provision shall survive completion, expiration, or termination of this Agreement.
1.15 The Contract Documents for this Project consist of:
a) This Agreement;
b) The City's RFP/RFQ, and the plans, specifications, general conditions, drawings
addenda, and modifications thereto;
c) The Contractor's response to the RFP/RFQBid;
d) Other exhibits and schedules, if any, listed in this Agreement;
e) Amendments or Other Contract Documents, if any; and
f) Amendments/Modifications to this Agreement issued after execution thereof.
1.16 Asa condition of receiving payment, Contractor must (i) be in compliance with
the Agreement, (ii) pay its employees prevailing wages when required by law (Examples of
prevailing wage categories include public works, printing, janitorial, window washing, building
and grounds services, site technician services, natural resource services, security guard and food
services). Contractor is responsible for contacting the Illinois Dept. of Labor 217-782-6206;
httD://www.state.il.us/Denartment/idol/index.htm to ensure compliance with prevailing wage
requirements), (iii) pay its suppliers and subcontractors according to the terms of their respective
contracts, and (iv) provide lien waivers to the City upon request.
2 Standard Certifications
Contractor acknowledges and agrees that compliance with this section and each
subsection for the term of the Agreement is a material requirement and condition of this
Agreement. By executing this Agreement, Contractor certifies compliance with this section and
each subsection and is under a continuing obligation to remain in compliance and report any
non-compliance.
This section, and each subsection, applies to subcontractors used on this Agreement.
Contractor shall include these Standard Certifications in any subcontract used in the performance
of the Agreement.
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If this Agreement extends over multiple fiscal years, Contractor and its subcontractors
shall confirm compliance with this section in the manner and format determined by the City by
the date specified by the City and in no event later than January 1 of each year that this
Agreement remains in effect.
If the City determines that any certification in this section is not applicable to this
Agreement, it may be stricken, subject to approval by the City, without affecting the remaining
subsections.
2.1 As part of each certification, Contractor acknowledges and agrees that should
Contractor or its subcontractors provide false information, or fail to be or remain in compliance
with the Standard Certification requirements, one or more of the following sanctions will apply:
® the Agreement may be void by operation of law,
® the City may void the Agreement, and
® Contractor and its subcontractors may be subject to one or more of the following:
suspension, debarment, denial of payment, civil fine, or criminal penalty.
2.2 By signing this Agreement, the Contractor certifies that it has not been barred
from being awarded a contract with a unit of State or local Government as a result of bid rigging
or bid rotating or similar offense, nor has it made any admission of guilt of such conduct that is a
matter of public record. (720 ILCS 5/33 E-3, E-4).
2.3 In the event of the Contractor's noncompliance with any provision of Section I-
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.
2.4 During the term of this Agreement, the Contractor 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.
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2.5 The Contractor certifies pursuant to the Illinois Human Rights Act (775 ILCS 5/2-
105 et. seq), that it has a written sexual harassment policy that includes, at a minimum, the
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 Contractor'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.
2.6 In accordance with the Steel Products Procurement Act (30 ILCS 565), Contractor
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.
2.7 Contractor 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.
2.8 If Contractor, or any officer, director, partner, or other managerial agent of
Contractor, 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, Contractor certifies at least five years
have passed since the date of the conviction.
2.9 Contractor certifies that if more favorable terms are granted by Contractor 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 will be applicable under this Agreement.
2.10 Contractor certifies that it is not delinquent in the payment of any fees, fines,
damages, or debts to the City of Evanston.
2.11 The Contractor certifies that all Design Professionals performing the Work under
this Agreement will ensure that the Project shall be designed in conformance with the Americans
with Disabilities Act of 1990, 42 U.S.C. Section 12101, et seq., and all regulations promulgated
thereunder. Design Professional means any individual, sole proprietorship, firm, partnership,
joint venture, corporation, professional corporation, or other entity that offers services under the
Illinois Architecture Practice Act of 1989 (225 ILCS 305/), the Professional Engineering Practice
Act of 1989 (225 ILCS 3250, the Structural Engineering Licensing Act of 1989 (225 ILCS
3400, or the Illinois Professional Land Surveyor Act of 1989 (225 ILCS 3300.
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2.12 The Contractor 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. The Contractor shall comply with the Illinois Human
Rights Act, 775 ILCS 5/1-101 et. seq, Title VII of the Civil Rights Act of 1964, and the Illinois
Prevailing Wage Act, 820 U-CS 130/0.01 et. seq.
3 Additional Services/Change Orders
3.1 If the representative of the City responsible for the Project verbally requests the
Contractor to perform additional services, the Contractor 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 Contractor's confirmation of said services within thirty (30) calendar days of
receipt of the notice shall be deemed a rejection of, and refusal to pay for the additional services.
Contractor 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 Contractor 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 9 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 Contractor;
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) Services not otherwise provided for in this Agreement.
3.2 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
Contractor, 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 Exhibits A, B, C,
and D that cause the total Compensation due Contractor under this Agreement to exceed $20,000
or more, or increase or decrease the contract duration by more than 30 days are subject to
approval by the Evanston City Council. These actions must be addressed either in a written
Change Order or in a written amendment to this Agreement approved by both parties.
3.3 Contractor acknowledges and agrees that the Public Works Construction Change
Order Act, 50 ILCS 525/1 et seq. shall apply to all Change Orders for the Project. It is expressly
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understood and agreed to by Contractor that it shall not be entitled to any damages or
Compensation from the City on account of delay or suspension of all or any part of the Work.
Contractor acknowledges that delays are inherent in construction projects and Contractor
assessed that risk and fully included that risk assessment within its contract sum specified in its
Response to the City Bid for this Project. The City shall not compensate Contractor for work
that is more difficult than the contract sum specified in its Response would reflect. Delays to
minor portions of the Work will not be eligible for extensions of time.
Delays to the Project caused by labor disputes or strikes involving trades not directly
related to the Project, or involving trades not affecting the Project as a whole will not be eligible
for an extension of time.
The City will not grant an extension of time for a delay by the Contractor's inability to
obtain materials unless the Contractor first furnishes to the City documentary proof. The proof
must be provided in a timely manner in accordance with the sequence of the Contractor's
operations and accepted construction schedule.
In addition to any other changes requested by City (as described in Sections 3.1 and 3.2),
the Company shall be entitled to request (and the City may grant) Change Orders with respect to:
(a) The City -caused delays;
(b) Change in Law;
(c) Force Majeure Events.
The foregoing events shall entitle the Contractor to a change in the Compensation for this
Project, if the Contractor demonstrates that it will unavoidably incur reasonable costs as a result
thereof and the Contractor provides reasonable and detailed documentary support with respect to
any such price impact.
The parties agree to reasonably confer regarding any such disputes with respect to the
issuance of a Change Order.
Any payment for compensable delay will only be based upon actual costs excluding,
without limitation, what damages, if any, the Contractor may have reasonably avoided. The
Contractor understands that this is the sole basis for recovering delay damages and explicitly
waives any right to calculate daily damages for office overhead, profit, or other purported loss.
All Contractor Change Orders authorized under this Section 3 shall be made in writing.
In remitting a Change Order, the Contractor must first show in writing that:
(a) The work was outside the scope of this Agreement,
(b) The extra work was not made necessary due to any fault of Contractor;
(c) The circumstances said to necessitate the change in performance were not
reasonably foreseeable at the time the Agreement was signed;
(d) The change is germane to the original Agreement; and
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(e) The Change Order is in the best interest of the City and authorized by law.
Any person who fails to first obtain the City's written authorization for a Change Order
commits a Class 4 felony. The written determination and the written Change Order resulting
from that determination shall be preserved in the contract's file which shall be open to the public
for inspection.
The City reserves all rights and causes of action, at law or equity, to seek redress against
entities or persons who violate the requirements of this Section 3. By initialing below,
Contractor hereby acknowledges that it is bound by this Section 3.
Contractor's Initials:
3.4 The Contractor is required to include the City of Evanston as a reference
whenever and wherever the Contractor provides references for similar projects for a period of
one (1) year from the date of Final Acceptance by the City of the Work for this Project.
4 Bonds
4.1 Before the Scheduled Construction Commencement Date, the Contractor is
required to furnish unconditional performance and payment bonds in the amount of 110% of the
Compensation as security for the faithful performance and completion of all the Contractor's
obligations under the Contract Documents and covering the payment of all materials used in the
performance of this Agreement and for all labor and services performed under this Agreement.
All Bonds shall be issued on a form acceptable to the City. The bonds must be for the entire
term of the Agreement. Failure to provide these bonds shall constitute a breach of Contractor's
obligations under this Agreement. Each surety providing the Bonds must have a Best's rating not
less than A+ and be licensed in Illinois and shall be named in the current list of "Companies
Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable
Reinsuring Companies" as published in Circular 570 as published in the Federal Register and
available on the website of the U.S. Department of the Treasury, Financial Management Service,
at www.ftns.treas.gov/c570/c570.html. All Bonds signed by an agent must be accompanied by a
certified copy of his or her authority to act. It shall be the duty of the Contractor to advise the
surety or sureties of any Change Orders that result in an increase to the Compensation and to
ensure that the amounts of the Bonds are updated to reflect and cover any such increases
throughout the course of the Project. The cost of such Bonds shall be included within the
Compensation.
4.2 If the surety behind any Bond furnished by the Contractor is declared bankrupt or
becomes insolvent or its right to do business is terminated in the State or it ceases to meet any of
the requirements of this Contract, the Contractor shall, within [51 days thereafter, substitute
another Bond of equivalent value and surety, both of which must be acceptable to the City. In
addition, no further progress payments under the Agreement will be made by the City until the
Contractor complies with the provisions of this Agreement. The Contractor shall furnish to the
City proof of any required bonds and proof of required insurance as one of the conditions
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precedent to payment under the Agreement. Upon the request of any person or entity appearing
to be a potential beneficiary of bonds covering payment or performance of obligations arising
under the Contract, the Contractor shall promptly furnish a copy of the bonds or authorize a copy
to be furnished. All surety Bonds provided for in this Section shall incorporate by reference this
Agreement, and any language that may be in any such surety Bond which conflicts with the
provisions of this Agreement that define the scope of the surety(`s) duty(ies) shall be of no force
and effect.
5 Liquidated Damages in the Event Contractor Pails to Complete the Work
5.1 The parties agree that failure of Contractor to timely complete the Work required
by this Agreement constitutes a default. The parties agree that this default will result in damage
and injury to City. The parties further agree, however, that actual damages incurred by City as
result of such default is difficult if not impossible to ascertain with any degree of certainty or
accuracy. Accordingly, the parties have negotiated and have agreed that for each calendar day
after written notice is delivered to Contractor and Contractor fails to cure such default, that
Contractor will pay City, as and for liquidated damages, and not as a penalty, the sum of
$500.00. Contractor shall reimburse the City for all costs, expenses and fees (including, without
limitation, attorneys' fees), if any, paid by the City in connection with such written demand by
City. Contractor stipulates and agrees that the sums payable by Contractor under this Section are
reasonable under the circumstances existing as of the execution of this Agreement. This Section
5.1 is not intended to limit any direct damages that may be recoverable by City related to the
Company's failure to complete the Work in accordance with this Agreement. There shall be no
early completion bonus if the Work is completed before the substantial completion date. The
City, at its option, may withhold liquidated damages from progress payments payable to
Contractor before the substantial completion date.
6 The City's Responsibilities
6.1 The City may evaluate the Contractor's and any subcontractor's performance
(interim and final). Timeliness in meeting the Project schedule and the overall relationship with
the Contractor are factors that will be considered in the Contractor's performance rating. An
unfavorable performance rating may be a factor when future assignments are being considered.
6.2 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 Contractor which were
generated or provided by third parties.
7 Period of Service
7.1 The Contractor shall commence work on the Project after supplying the City with
the Contractor's performance and payment bonds and all required insurance documents before
starting its Work on this Project. The City shall determine when the Contractor has completed
the Work required pursuant to this Agreement, and shall determine the date of Final Acceptance.
Contractor recognizes time is of the essence regarding its performance on this Project.
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Contractor shall continue to perform its obligations while any dispute concerning the Agreement
is being resolved, unless otherwise directed by the City.
7.2 Each phase of the project shall be completed in accordance with the activities
outlined in the City's Bid 12-65, Exhibit A.
8 Payment for Services and Reimbursements
8.1 Within the first five (5) business days of each month, the Contractor shall invoice
the City for Work completed during the previous month. The Contractor shall provide a detailed
invoice that relates invoiced items to the Contractor's response to Bid 12-65 in both quantity and
unit cost. Any discrepancies in the monthly invoice shall be promptly brought to the attention of
the Contractor by the City Project Manager and efforts shall be made to promptly resolve said
discrepancies between the City and Contractor. In the event the City and Contractor cannot
resolve invoice discrepancies, items in dispute will be removed from the invoice and the City
shall approve the remainder of the invoice. Payment will be made as soon as possible following
the City Council meeting in which the item appeared on the bills list, and in accordance with all
applicable laws and rules of the City of Evanston and the State of Illinois.
8.2 In the event of termination by the City of this Agreement pursuant to paragraph
9.1 after completion of any phase of the basic services, fees due the Contractor for services
rendered through such phase shall constitute final payment for such services, and no further fees
shall be due to the Contractor. In the event of such termination by the City during any phase of
the basic services, the Contractor shall be paid for services rendered on the basis of the
proportion of work completed on the phase to date of termination.
8.3 The City shall have the right to withhold payment to the Contractor due to the
quality of a portion or all of the work performed hereunder which is not in accordance with the
requirements of this Agreement, or which is unsatisfactory, or is due to the Contractor's failure
or refusal to perform any of its obligations hereunder. 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 3 of this Agreement.
Compensation for improper performance by the Contractor is disallowed.
8.4 Upon completion of the Work performed by the Contractor, prior to the
submission of a request for final payment, the City and Contractor shall perform a final
acceptance test and review of the Work performed and/or equipment installed pursuant to the
Agreement. A punch list of items outstanding will be jointly developed by the City and
Contractor. In addition, the Contractor shall submit drawings of record for the Project for the
City to approve. The Contractor shall promptly resolve all punch list items to the satisfaction of
the City, and shall transmit to the City in writing confirmation that all punch list items have been
resolved. The City will review, and the Contractor shall modify, as necessary, any drawings of
record to the satisfaction of the City. Punch list items and drawings of record must be approved
by the City prior to the Contractor submitting its final invoice for payment.
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8.5 The Contractor shall submit an Affidavit and a final waiver of its lien, and all
final waivers of liens of any subcontractors, suppliers, and sub -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 terms of the Agreement. The Affidavit and all
final lien waivers shall be on a form acceptable to the City.
8.6 All Project invoices shall be sent to:
City of Evanston
Department of Parks, Recreation and Community Services
Attention: Stefanie Levine
2100 Ridge Avenue
Evanston, Illinois 60201
9 Notice and Cure/Termination
9.1 In furtherance of Contractor's Work on this Project, the City and the Contractor
agree that the following Notice and Cure provision in this Section 9.1 shall apply during the
duration of Contractor's work on this Project, in addition to the reserved rights of the City
enumerated in this Agreement as follows:
5.1 Liquidated Damages;
8.3 City's right to withhold payment;
16.2 Contractor's duty to revise and correct errors; and
16.3 Contractor's duty to respond to City's notice of errors and omissions.
The City may notify Contractor of its intent to terminate this Agreement within (7) seven
calendar days of issuance by the City of written notice to Contractor's Project Manager regarding
defects in the Project or in Contractor's Work. The City shall specify any such nonconforming
Work or defects in the Project in its notice to Contractor under this Section 9.1. Contractor will
have the opportunity to cure the non -conforming Work within (7) seven calendar days after
receipt of the written notice issued by the City. All such curative work done shall be performed
and completed to the City's satisfaction. Nothing in this Section 9.1 shall otherwise affect the
City's right to exercise its rights in Section 9.2.
9.2 The City shall have the right to terminate this Agreement upon fifteen (15) 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.
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.
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9.3 Within thirty (30) days of termination of this Agreement, the Contractor 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, ArtView,
PDF, Word, Excel spreadsheets, technical specifications and calculations, and any other such
items specifically identified by the City related to the Work herein. Upon receipt of said items,
the Contractor shall be paid for labor and expenses incurred to the date of termination as
provided in Section 8.2. 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. No lien shall be filed by the Contractor in the event of a termination of this
Agreement by the City.
9.4 If, because of death or any other occurrence, including, but not limited to,
Contractor becoming insolvent, it becomes impossible for any principal or principals of the
Contractor to render the services set forth in this Agreement, neither the Contractor, 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 famished evidence that competent professional services can still be
furnished as scheduled.
9.5 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 to terminate this Agreement without prior written notice.
10 Insurance
10.1 The Contractor 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 Contractor, its agents, representatives, employees or subcontractors. Contractor
acknowledges and agrees that if it fails to comply with all requirements of this Section 10, the
City may void the Agreement.
The Contractor must give to the City Certificates of Insurance identifying the City to be
an Additional Insured for all Work done pursuant to this Agreement before City staff
recommends award of the contract to City Council. Any limitations or modifications on the
Certificate(s) of Insurance issued to the City in compliance with this Section that conflict with
the provisions of this Section 10 shall have no force and effect.
After award of the Contract to Contractor, the Contractor shall give the City a certified
copy(ies) of the insurance poliey(ies) evidencing the amounts set forth in Section 10.2, and
copies of the Additional Insured endorsement to such policy(ies) which name the City as an
Additional Insured for all Work done pursuant to this Agreement before Contractor does any
Work pursuant to this Agreement. Contractor'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)
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days prior written notice (hand delivered or registered mail) to the City. Contractor shall
promptly forward new certificate(s) of insurance evidencing the coverage(s) required herein
upon annual renewal of the subject policies.
The policies and the Additional Insured endorsement must be delivered to the City within
two (2) 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 thirty (30) days written notice to the
City. The Contractor 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
Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
101 Contractor 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 Contractor, and insuring Contractor against claims which may arise out of or
result from Contractor's performance or failure to perform the Services hereunder:
a) Worker's compensation in statutory limits and employer's liability insurance in
the amount of at least five hundred thousand dollars ($500,000);
b) Comprehensive general liability coverage which designates the City as an
additional insured for not less than three million dollars ($3,000,000) combined
single limit for bodily injury, death and property damage, per occurrence;
c) Comprehensive automobile liability insurance covering owned, non -owned, and
leased vehicles for not less than one million dollars ($1,000,000) combined single
limit for bodily injury, death, or property damage, per occurrence; and
Contractor understands that the acceptance of Certificates of Insurance, policies, and any
other documents by the City in no way releases the Contractor and its subcontractors from the
requirements set forth herein.
Contractor 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 Contractor fails to purchase or procure insurance as required above, the parties expressly
agree that Contractor 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 Contractor.
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11 Indemnification
11.1 The Contractor 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
Contractor or Contractor'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.
11.2 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 Contractor 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, Contractor 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
Contractor of any of its obligations under this Agreement. Any settlement of any claim or suit
related to this Project by Contractor 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, Contractor 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 Contractor 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, Kateeki 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.
11.3 The Contractor 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 subcontractors' work. Acceptance of
the work by the City will not relieve the Contractor 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.
11A All provisions of this Section 11 shall survive completion, expiration, or
termination of this Agreement.
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12 Drawings and Documents
12.1 Any drawings, survey data, reports, studies, specifications, estimates, maps, plans,
computations, and other documents required to be prepared by the Contractor for the Project
shall be considered Works for Hire and the sole property of the City.
12.2 The Contractor and its subcontractor 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 Contractor 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.
13 Successors and Assigns
13.1 The City and the Contractor 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 this Agreement. Neither the City nor the Contractor 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 Contractor.
14 Force Majeure
14.1 Whenever a period of time is provided for in this Agreement for the Contractor 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:
a) Acts of nature;
b) Acts or failure to act on the part of any governmental authority other than the City
or Contractor, including, but not limited to, enactment of laws, rules, regulations,
codes or ordinances subsequent to the date of this Agreement;
c) Acts or war;
d) Acts of civil or military authority;
e) Embargoes;
1) Work stoppages, strikes, lockouts, or labor disputes;
g) Public disorders, civil violence, or disobedience;
h) Riots, blockades, sabotage, insurrection, or rebellion;
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i) Epidemics or pandemics;
j) Terrorist acts;
k) Fires or explosions;
1) Nuclear accidents;
m) Earthquakes, floods, hurricanes, tornadoes, or other similar calamities;
n) Major environmental disturbances; or
o) Vandalism.
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.
15 Amendments and Modifications
15.1 Except as otherwise provided herein, the nature and scope of Work specified in
this Agreement may only be modified by a written Change Order, or a 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.
16 Standard of Care & Warranty
16.1 The Contractor shall perform all of the provisions of this Agreement to the
satisfaction of the City. The City shall base its determination of the Contractor's fulfillment of
the scope of the work in accordance with generally accepted professional standards. The
Contractor 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.
16.2 The Contractor 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 Contractor's professional services shall not relieve the Contractor of its responsibility to
subsequently correct any such errors or omissions. If a Contractor 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 Contractor 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
Contractor 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.
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16.3 During the pendency of its Work on this Project, the Contractor shall respond to
the City's notice of any errors or omissions within twenty-four (24) hours. The Contractor shall
be required to promptly visit the Project site(s) if directed to by the City.
16.4 The Contractor shall comply with all federal, state, and local statutes, regulations,
rules, ordinances, judicial decisions, and administrative rulings applicable to its performance
under this Agreement.
16.5 Contractor guarantees and warrants to the City that:
a) All materials and equipment furnished under this Agreement shall be of good
quality and new, unless otherwise required or permitted by the Contract
Documents;
b) The Work of this Agreement shall be free from defects which are not inherent in
the quality required; and
c) The Work shall comply with the requirements set forth in the Contract
Documents.
This warranty and guarantee shall be for a period of one (1) year from the date of
completion and Final Acceptance of the Work by the City, or as otherwise provided in the
Contract Documents.
If, within the one year warranty period, after the Contractor has received a final payment
under this Agreement, any of the Work is found to be not be in accordance with the requirements
of this Agreement, or where defects in materials or workmanship may appear, or be in need of
repair, the Contractor shall correct non -conforming and/or defective work or materials promptly
after receipt of written notice from the City. Contractor shall immediately at its own expense
repair, replace, restore, or rebuild any such Work. This remedy is in addition to any other legal or
equitable remedies the City may have under this Agreement or the law.
This guarantee and warranty shall not relieve Contractor of liability for latent defects, and
shall be in addition to the City's rights under the law or other guarantees or warranties, express
or implied.
16.6 The provisions of this Section 18 shall survive the completion, expiration or
termination of this Agreement.
17 Savings Clause
17.1 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.
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18 Non -Waiver of Rights
18.1 No failure or delay by the City to exercise any power given to it hereunder or to
insist upon strict compliance by Contractor with its obligations hereunder, nor any payment
made by the City under this Agreement, shall constitute a waiver of the City's right to demand
strict compliance with the terms hereof, unless such waiver is in writing and signed by the City.
19 Entire Agreement
19.1 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 parry due to the fact that one parry drafted that
particular portion as the rule of contra proferentem shall not apply.
20 Governing Law
20.1 This Agreement shall be construed in accordance with and subject to the laws and
rules of the City of Evanston and 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 Cook County, Illinois.
The City shall not enter into binding arbitration to resolve any dispute related to this Agreement.
The City does not waive tort immunity by entering into this Agreement.
21 Ownership of Contract Documents
21.1 Contractor 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.
22 Notice
22.1 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 parry hereto shall
notify the other party of in writing pursuant to the provisions of this Subsection:
City of Evanston Project Manager, Bid 12-65
2100 Ridge Avenue
Evanston, Illinois 60201
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if to the Contractor:
Jack Galbraith, President
G.A. Johnson & Son
828 Foster Street
Evanston, Illinois 60201
22.2 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.
23 Severability
23.1 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.
24 Execution of Agreement
24.1 This Agreement shall be signed last by the City Manager. The City Manager shall
affix the date on which he/she signs this Agreement on Page I hereof, which date shall be the
effective date of this Agreement.
25 Counterparts
25.1 For convenience, this Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original.
26 Authorizations
26.1 The Contractor's authorized representatives who have executed this Agreement
warrant that they have been lawfully authorized by the Contractor's board of directors or its
bylaws to execute this Agreement on its behalf. The City Manager affirms that he/she has been
lawfully authorized to execute this Agreement. The Contractor 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.
27 Time of Essence
27.1 Time is of the essence with respect to each provision hereof in which time is a
factor.
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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 on the first page above.
CITY OF EVANSTON
By. WAJ�
C/
Wally Bobkiewicz
Its: City Manager
Approved as to form:
By:
L
W. Grant Farrar,
Its: Corporation Counsel
Revision October 2011
CONTRACTOR
By:
N'arfie: C /7% Mx i ,
Its: 01- eS' U fin/ {—
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