HomeMy WebLinkAboutApproval of Contract Award to Gila Corporation DBA Municipal Services Bureau for Collection of Outstanding DebtFor:
CITY OF EVANSTON
PROFESSIONAL SERVICES AGREEMENT
The parties referenced herein desire to enter into an agreement for professional services
RFP #11-18 Collection Agency Services
THIS AGREEMENT (hereinafter referred to as the "Agreement") entered into this
_22nd_ day of _February , 2011, between the City of Evanston, an Illinois municipal
corporation with offices located at 2100 Ridge Avenue, Evanston Illinois 60201 (hereinafter
referred to as the "City"), and Gila, LLC d/b/a Municipal Services Bureau, a Texas limited
liability company, with offices located at 6505 Airport Blvd. Suite 100, Austin, TX 78752
(hereinafter referred to as the "Consultant"). Compensation for all basic services provided by the
Consultant pursuant to the terms of this Agreement shall not exceed the terms set forth in the
attached Addendum A.
I. COMMENCEMENT DATE
Consultant shall commence the Services on the date set forth in Addendum A or no later
than three (3) DAYS AFTER City executes and delivers this Agreement to Consultant.
II. COMPLETION DATE
Consultant shall complete the Services by the date set forth in Addendum A or no later
than a date agreed to by the City in writing. If this Agreement provides for renewals after
an initial term, no renewal shall begin until agreed to in writing by both parties prior to
the completion date of this Agreement.
III. PAYMENTS
City shall pay Consultant those fees as provided in Addendum A. Payment shall be made
upon the completion of each task for a project, as set forth in City's Request for Proposal
No. #11-18 (Exhibit A). Any expenses in addition to those set forth on Addendum A
must be specifically approved by the City in writing in advance.
IV. DESCRIPTION OF SERVICES
Consultant shall perform the services (the "Services") are those defined in the City's
Request for Proposal No. #11-18, and Consultant's Proposal.
V. GENERAL PROVISIONS
A. Services. Consultant shall perform the Services in a professional and
workmanlike manner. All Services performed and documentation (regardless of
format) provided by Consultant shall be in accordance with the standards of
reasonable care and skill of the profession, free from errors or omissions,
ambiguities, coordination problems, and other defects in the documentation.
Consultant shall take into account any and all applicable plans and/or
specifications furnished by City or by others at City's direction or request, to
Consultant during the term of this Agreement. All materials, buildings,
structures, or equipment designed or selected by Consultant shall be workable and
fit for the intended use thereof, and will comply with all applicable governmental
requirements. Consultant shall cause its employees to observe the working
hours, rules, security regulations and holiday schedules of City while working at
the Property and to perform their respective duties in a manner which does not
unreasonably interfere with City's business and operations, or the business and
operations of the tenants and occupants of the Property. Consultant shall take all
necessary precautions to assure the safety of its employees who are engaged in the
performance of the Services, all equipment and supplies used in connection
therewith, and all property of City or other parties that may be affected in
connection therewith. If so requested by City, Consultant shall promptly replace
any employee or agent performing the Services if, in the opinion of the City, the
performance of the employee or agent is unsatisfactory.
Except as otherwise provided herein, the nature and scope of services specified in
this Agreement may only be modified by a writing approved by both parties. This
Agreement may be modified or amended from time to time provided, however,
that no such amendment or modification shall be effective unless reduced to
writing and duly authorized and signed by the authorized representatives of the
parties.
B. Representation and Warranties. Consultant represents and warrants
that: (1) Consultant possesses and will keep in force all required licenses to
perform the Services, (2) the employees of Consultant performing the Services are
fully qualified, licensed as required, and skilled to perform the services, (3)
Consultant and its employees performing the Services have had substantial
experience performing comparable services for other parties during the past five
(5) consecutive years; (4) Consultant is in good standing with the State of Texas
and will cause the company to remain in good standing through the term of the
Agreement.
C. Termination. City may, at any time, with or without cause, terminate this
Agreement upon seven (7) days written notice to Consultant. If the City
terminates this agreement, the City will make payment to Consultant for services
performed prior to termination.
D. Independent Contractor.
(1) Consultant's status shall be that of an independent Consultant and not that of a
servant, agent, or employee of City. Consultant shall not hold Consultant out, nor
claim to be acting, as a servant, agent or employee of City. Consultant is not
authorized to, and shall not, make or undertake any agreement, understanding,
waiver or representation on behalf of City. (2) Consultant shall at its own expense
comply with all applicable workers compensation, unemployment insurance,
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employer's liability, tax withholding, minimum wage and hour, and other federal,
state, county and municipal laws, ordinances, rules, regulations and orders.
Consultant agrees to abide by the Occupational Safety & Health Act of 1970
(OSHA), and as the same may be amended from time to time, applicable state and
municipal safety and health laws and all regulations pursuant thereto.
E. Conflict of Interest. Consultant represents and warrants that no prior or present
services provided by Consultant to third parties conflict with the interests of City in respect to the
Services being provided hereunder except as shall have been expressly disclosed in writing by
Consultant to City and consented to in writing to City.
F. Ownership of Documents and Other Materials. All originals, duplicates and
negatives of all plans, drawings, reports, photographs, charts, programs, models, specimens,
specifications, and other documents or materials required to be furnished by Consultant
hereunder, including drafts and reproduction copies thereof, shall be and remain the exclusive
property of City, and City shall have the unlimited right to publish and use all or any part of the
same without payment of any additional royalty, charge, or other compensation to Consultant.
Upon the termination of this Agreement, or upon request of City, during any stage of the
Services, Consultant shall promptly deliver all such materials to City. Consultant shall not
publish, transfer, license or, except in connection with carrying out obligations under this
Agreement, use or reuse all or any part of such reports and other documents, including working
pagers, without the prior written approval of City, provided, however, that Consultant may retain
copies of the same for Consultant's own general reference.
G. Payment. Invoices for payment shall be submitted by Consultant to City at the
address set forth above, together with reasonable supporting documentation, City may require
such additional supporting documentation as City reasonably deems necessary or desirable.
Payment shall be made in accordance with the Illinois Local Government Prompt Payment Act,
after City's receipt of an invoice and all such supporting documentation.
H. Right to Audit. Consultant shall for a period of three years following performance
of the Services, keep and make available for the inspection, examination and audit by City or
City's authorized employees, agents or representatives, at all reasonable time, all records
respecting the services and expenses incurred by Consultant, including without limitation, all
book, accounts, memoranda, receipts, ledgers, canceled checks, and any other documents
indicating, documenting, verifying or substantiating the cost and appropriateness of any and all
expenses. If any invoice submitted by Consultant is found to have been overstated, Consultant
shall provide City an immediate refund of the overpayment (together with interest at the lesser of
18% or per annum or the highest rate permitted by applicable law), and shall reimburse all of
City's expenses for and in connection with the audit respecting such invoice.
I. Indemnity.
Consultant shall defend, indemnify and hold harmless the City and its officers, elected
and appointed officials, agents, and employees from any and all liability, losses, or damages as a
result of claims, demands, suits, actions, or proceedings of any kind or nature, including but not
limited to costs, and fees, including reasonable attorney's fees, judgments or settlements,
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resulting from or arising out of any negligent or willful act or omission on the part of the
Consultant or Consultant's subcontractors, employees, agents or subcontractors during the
performance of this Agreement. Such indemnification shall not be limited by reason of the
enumeration of any insurance coverage herein provided. This provision shall survive completion,
expiration, or termination of this Agreement.
Nothing contained herein shall be construed as prohibiting the City, or its officers, agents,
or employees, from defending through the selection and use of their own agents, attorneys, and
experts, any claims, actions or suits brought against them. The Consultant shall be liable for the
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.
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, including but not
limited to, Kotecki v. Cyclops Welding Corporation, 146 Ill. 2d 155 (1991). The City, however,
does not waive any limitations it may have on its liability under the Illinois Workers
Compensation Act, the Illinois Pension Code or any other statute.
Consultant shall be responsible for any losses and costs to repair or remedy work
performed under this Agreement resulting from or arising out of any act or omission, neglect, or
misconduct in the performance of its Work or its sub -Consultants' work. Acceptance of the work
by the City will not relieve the Consultant of the responsibility for subsequent correction of any
such error, omissions and/or negligent acts or of its liability for loss or damage resulting
therefrom. All provisions of this Section shall survive completion, expiration, or termination of
this Agreement.
J. Insurance. Consultant shall carry and maintain at its own cost with such companies
as are reasonably acceptable to City all necessary liability insurance (which shall include as a
minimum the requirements set forth below) during the term of this Agreement, for damages
caused or contributed to by Consultant, and insuring Consultant against claims which may arise
out of or result from Consultant's performance or failure to perform the Services hereunder: (1)
worker's compensation in statutory limits and employer's liability insurance in the amount of at
least $500,000, (2) comprehensive general liability coverage, and designating City as additional
insured for not less than $3,000,000 combined single limit for bodily injury, death and property
damage, per occurrence, (3) comprehensive automobile liability insurance covering owned non -
owned and leased vehicles for not less than $1.000,000 combined single limit for bodily injury,
death or property damage, per occurrence, and (4) errors and omissions or professional liability
insurance respecting any insurable professional services hereunder in the amount of at least
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$1,000,000. Consultant shall provide City with certificates of insurance and, if requested by
City, certified copies of the policies of insurance evidencing the coverage and amounts set forth
in this Section. Consultant's certificate of insurance shall contain a provision that the coverage
afforded under the policy(s) will not be canceled or reduced without thirty (30) days prior written
notice (hand delivered or registered mail) to City. Consultant understands that the acceptance of
certificates, policies and any other documents by the City in no way releases the Consultant and
it 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 ILCS 140/1, et seq.),
and so long as such information has been furnished to the City under a proprietary claim as
provided for in said Act.
K. Confidentiality. In connection with this Agreement, City may provide Consultant with
information to enable Consultant to render the Services hereunder, or Consultant may develop
confidential information for City. Consultant agrees (i) to treat, and to obligate Consultant's
employees to treat, as secret and confidential all such information whether or not identified by
City as confidential, (ii) not to disclose any such information or make available any reports,
recommendations and /or conclusions which Consultant may make for City to any person, firm
or corporation or use the same in any manner whatsoever without first obtaining City's written
approval, and (iii) not to disclose to City any information obtained by Consultant on a
confidential basis from any third party unless Consultant shall have first received written
permission from such third party to disclose such information.
L. Use of City's Name or Picture of Property. Consultant shall not in the course of
performance of this Agreement or thereafter use or permit the use of City's name nor the name
of any affiliate of City, nor any picture of or reference to the Property in any advertising,
promotional or other materials prepared by or on behalf of Consultant, nor disclose or transmit
the same to any other party.
M. No Assignments or Subcontracts. Consultant shall not assign or subcontract all or
any part or its rights or obligations hereunder without City's express prior written approval, and
any attempt to do so shall at City's option be null and void and of no force or effect whatsoever.
Consultant shall not employ, contract with, or use the services of any other architect, interior
designer, engineer, consultant, special contract, tort, or other third party in connection with the
performance of the Services without the prior written consent of City.
N. Compliance with Applicable Statues, Ordinances and Regulations. In performing
the Services, Consultant shall comply with all applicable federal, state, county, and municipal
statues, ordinances and regulations, at Consultant's sole cost and expense, except to the extent
expressly provided to the contrary herein. The Consultant acknowledges and agrees to comply
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with the Illinois Identity Protection Act, 5 ILCS 179/1 et seq.; Illinois Collection Agency Act,
225 ILCS 425/1 et seq.; and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692-1692(p).
O. Liens and Encumbrances. Consultant, for itself, and on behalf of allsubcontractors,
suppliers, materialmen and others claiming by, through or under Consultant, hereby waives and
releases any and all statutory or common law mechanics' materialmens' or other such lien
claims, or rights to place a lien upon the Property or any improvements thereon in connection
with any Services performed under or in connection with this Agreement. Consultant further
agrees, as and to the extent of payment made hereunder, to execute a sworn affidavit respecting
the payment and lien releases of all subcontractors, suppliers and materialmen, and a release of
lien respecting the Services at such time or times and in such form as may be reasonably
requested by City. Consultant shall protect City from all liens for labor performed, material
supplied or used by Consultant and/or any other person in connection with the Services
undertaken by consultant hereunder, and shall not at any time suffer or permit any lien or
attachment or encumbrance to be imposed by any sub -Consultant, supplier or materialmen, or
other person, firm or corporation, upon the Property or any improvements thereon, by reason or
any claim or demand against Consultant or otherwise in connection with the Services.
P. Notices. Every notice or other communication to be given by either party to the other
with respect to this Agreement, shall be in writing and shall not be effective for any purpose
unless the same shall be served personally or by United States certified or registered mail,
postage prepaid, addressed if to City as follows: City of Evanston, 2100 Ridge Avenue,
Evanston, Illinois 60201, Attention: Purchasing Division and to Consultant at the address first
above set forth, or at such other address or addresses as City or Consultant may from time to
time designate by notice given as above provided.
Q. Attorney's Fees. In the event that any action, suit, or other proceeding is instituted to
remedy, prevent, or obtain relief from a breach of this Agreement, or arising out of a breach of
this Agreement, the prevailing party shall recover from the unsuccessful party as part of the
judgment all of such party's attorneys' fees incurred in each and every such action, suit, or other
proceeding.
R. Waiver. Any failure or delay by City to enforce the provisions of this Agreement
shall in no way constitute a waiver by City of any contractual right hereunder, unless such
waiver is in writing and signed by City.
S. Severability. In the event that any provision of this Agreement should be held void,
or unenforceable, the remaining portions hereof shall remain in full force and effect.
T. Choice of Law. The rights and duties arising under this Agreement shall be
governed by the laws of the State of Illinois.
U. Limitation of Liability. No individual of City shall have any personal liability in
connection with this agreement. Consultant shall look solely to the assets of City for the
satisfaction of any judgment in connection herewith.
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V. Time. All time limits provided in this Agreement and any Addenda or Exhibits
hereto are of the essence of this Agreement.
W. Survival. Except as expressly provided to the contrary herein, all provisions of this
Agreement shall survive all performances hereunder including the termination of the Consultant.
EQUAL EMPLOYMENT OPPORTUNITY
In the event of the Consultant's noncompliance with any provision of this Equal Employment
Opportunity clause, the Illinois Human rights Act or the Illinois Department of Human Rights'
Rules and Regulations for Public Contracts, the Consultant may be declared nonresponsible and
therefore ineligible for future contracts or subcontracts with the State of Illinois or any of its
political subdivisions or municipal corporations, and the contract may be cancelled or voided in
whole or in part, and such other sanctions or penalties may be imposed or remedies invoked as
provided by statute or regulation.
During the performance of the contract, the Consultant agrees as follows:
(A) That it will not discriminate against any employee or applicant for employment because
of race, color, religion, sex, sexual orientation, marital status, national origin or ancestry,
or age or physical or mental disabilities that do not impair ability to work, and further that
it will examine all job classifications to determine if minority persons or women are
underutilized and will take appropriate affirmative action to rectify any such
underutilization.
(B) That, if it hires additional employees in order to perform this contract, or any portion
hereof, it will determine the availability of minorities and women in the area(s) from
which it may reasonably recruit and it will hire for each job classification for which
employees are hired in such a way that minorities and women are not underutilized.
(C) 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.
(D) That it will send to each labor organization or representative of workers which is has or is
bound by a collective bargaining or other agreement or understanding, a notice advising
such labor organization or representative of the Consultant's obligations under the Illinois
Human Rights Act and the Illinois Department of Human Rights' Rules and Regulations
for Public Contracts. If any such labor organization or representative fails or refuses to
cooperate with the Consultant in its efforts to comply with such Act and Rules and
Regulations, the Consultant will promptly so notify the Illinois Department of Human
Rights and the contracting agency and will recruit employees from other sources when
necessary to fulfill its obligations thereunder.
(E) That it will submit reports as required by the Illinois Department of Human Rights' Rules
and Regulations for Public Contracts, furnish all relevant information as may from time
to time be requested by the Illinois Department of Human Rights or the contracting
agency, and in all respects comply with the Illinois Human Rights Act and the Illinois
Department of Human Rights' Rules and Regulations for Public Contracts.
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(F) That it will permit access to all relevant books and records, accounts and work sites by
personnel of the contracting agency, the City Manager, the Commission and the Illinois
Department of Human Rights for purposes of investigation to ascertain compliance with
the Illinois Human Rights Act and the Illinois Department of Human Rights' Rules and
Regulations for Public Contracts
(G)That it will include verbatim or by reference the provisions of subsections (A) through
(G) of this clause in every performance subcontract as defined in section 750.30 of the
Illinois Department of Human Rights' Rules and Regulations for Public Contracts so that
such provisions will be binding upon every such sub -Consultant; and that it will also so
include the provisions of subsections (A), (E), (F) and (G) in every supply subcontract as
defined in section 750.30 of the Illinois Department of Human Rights' Rules and
Regulations for Public Contracts so that such provisions will be binding upon every such
sub -Consultant. In the same manner as with other provisions of this contract, the
Consultant will be liable for compliance with applicable provisions of this clause by all of
its sub -Consultants; and further, it promptly notify the contracting agency and the Illinois
Department of Human Rights in the event any sub -Consultant fails to refuses to comply
therewith. In addition, no Consultant will utilize and sub -Consultant declared by the
Illinois of Human Rights Commission to be nonresponsible and therefor ineligible for
contracts or subcontracts with the State of Illinois or any of its political subdivisions or
municipal corporations.
SEXUAL HARRASSMENT POLICY
The Consultant certifies pursuant to the Illinois Human Rights Act (775 ILCS 5/2105 et, seq.),
that it has a written sexual harassment policy that includes, at a minimum, the following
information:
(A) The illegality of sexual harassment;
(B) The definition of sexual harassment under State law;
(C) A description of sexual harassment utilizing examples;
(D) The Consultant's internal complaint process including penalties;
(E) Legal recourse, investigation and complaint process available through the Illinois
Department of Human Rights and the Human Rights Commission, and directions
on how to contact both; and
(F) Protection against retaliation as provided to the Department of Human Rights.
CONSULTANT CERTIFICATIONS
(A) Consultant acknowledges and agrees that should Consultant or its subcontractors provide
false information, or fail to be or remain in compliance with the Agreement the City may
void the contract.
(B) Consultant certifies that it and its employees will comply with applicable provisions of the
U.S. Civil Rights Act, Section 504 of the Federal Rehabilitation Act, the Americans with
Disabilities Act (42 U.S.C. Section 1201 et seq.) and applicable rules in performance under
this contract.
(C) If Consultant, or any officer, director, partner, or other managerial agent of Consultant, has
been convicted of a felony under the Sarbanes-Oxley Act of 2002, or a Class 3 or Class 2
felony under the Illinois Securities Law of 1953, Consultant certifies at least five years have
passed since the date of the conviction (301LCS 500/50-10.5).
(D) Consultant certifies that it has not been convicted of the offense of bid rigging or bid rotating
or any similar offense of any State in the U.S. (720 ILCS 5/33 E-3, E-4).
(E) In accordance with the Steel Products Procurement Act, Consultant certifies steel products
used or supplied in the performance of a contract for public works shall be manufactured or
produced in the U.S. unless the City grants an exemption.
(F) Consultant certifies that it is properly formed and existing legal entity (30 ILCS 500/1.15.80,
20-43) and as applicable has obtained an assumed name certificate from the appropriate
authority, or has registered to conduct business in Illinois and is in good standing with the
Illinois Secretary of State.
(G) If more favorable terms are granted by Consultant to any similar governmental entity in any
state in a contemporaneous agreement let under the same or similar financial terms and
circumstances for comparable supplies or services, the more favorable terms will be
applicable �dr�tis Agreement.
(H)Consultant.,t at`it`is
"not delinquent in the payment of any fees, fines or debts to the City of
Evanston.
VI. INTEGRATION.
This Agreement, together with Exhibit A and Exhibit B constitute the entire agreement between
the parties and supersedes all previous written or oral agreements, if any, relative to the subject
matter hereof. In the event of any inconsistency between this Agreement, and any Exhibits, this
Agreement shall control over the Exhibits. In no event shall any proposal or contract form
submitted by Consultant be part of this Agreement unless agreed to a signed by both parties and
attached and referred to herein as an Addendum, and in such event, only the portions of such
proposal or contract form consistent with this Agreement and Exhibits hereto shall be part
hereof.
IN WITNESS WHEREOF, the parties hereto have each approved and executed this
Agreement on the day, month and year first above written.
GILA, LLC CITY OF EVANSTON
2100 RIDGE AVENUE
EVANSTON, IL 602011 --may
By: By:W o a�� /)
Its: CEO Its: 61-'L In4-JgI.r-lei
FEINNumber: 74-2605908
Date:
Date: Feb. 24,
2011
Attest:
Approved P-0 :�- !MrM:
W. Grant r -
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ADDENDUM A
This ADDENDUM A to that certain Consulting Agreement dated 2007 between the City of
Evanston, 2100 Ridge Avenue, Evanston, Illinois, 60201("City") and Gila, LLC, d/b/a
Municipal Services Bureau, a Texas limited liability company, ("Consultant") sets forth the
Commencement and Completion Date, Services, Fees, and Reimbursable Expenses as follows:
I. COMMENCEMENT DATE: February 25, 2011
II. COMPLETION DATE: February 24, 2014
III. FEES: (A) 19% Contingency Fee for primary and secondary placements;
(B) The Consultant will rebate 10% of their commission fee earned in the first
100 days from contract execution;
(C) The Consultant shall utilize Mintex, Inc. to target 5% - 10% participation
towards the City of Evanston's M/W/EBE Goal.
(D) 33% commission for Litigation when assigned to Consultant by the City.
(E) The Consultant will deduct monthly commission owed by the City to
Consultant from the monthly total to be remitted to the City.
IV. SERVICES:
As defined in RFP 9 11-18and Consultants Proposal Dated: May 27, 2010.
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