HomeMy WebLinkAboutService Center Fleet Services Make Up Air Unit Replacement ProjectCity of
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CONTRACTOR SERVICES AGREEMENT
The parties referenced herein desire to enter into an agreement for professional services for
Bid 12-12 Service Center Fleet Service Make Up Air Unit Replacement
THIS AGREEMENT (hereinafter referred to as the "Agreement") entered into this 13 day of
September, 20 11. 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 Mechanical
Concepts of Illinois, Inc., with offices located at 333 S. O'Hare Drive, Romeoville, Illinois, (hereinafter
referred to as the "Contractor"). Compensation for all basic services provided by the Contractor pursuant
to the terms of this Agreement shall not exceed $102,350.
.RECITALS
WHEREAS, the City intends to retain the services of a qualified and experienced contractor:
To complete all work as described in the construction documents provided with Bid #12-12.
WHEREAS, this Agreement shall include the following documents which are attached hereto:
a) City of Evanston Bid 12-12, attached as Exhibit A.
b) Contractor's response to Bid 12-12, attached as Exhibit B.
c) Project Fee Schedule and hourly rates, attached as Exhibit C (N/A).
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties
agree as follows:
SECTION 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 and C. 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 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 Iimited 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 shall serve as the City's vendor in those phases of the Project to which
this Agreement applies, and provide consultation and advice to the City during the performance of its
services.
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 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 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 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 ILCS
130/0.01 et. seq.
Effective 1/1/2010, pursuant to a new provision 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.
1.7 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. Specific safety requirements applicable to this Project are
set forth as items herein below. Additionally, such safety requirements shall be made a part of any
subcontractor agreement:
All specific safety requirements shall be as described in the construction documents for Bid #12-12.
1.8 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 shall 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 D. 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, 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.
1.9 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.
1.10 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 professional services required under this Agreement
pursuant to high quality industry standards expected by the City. The Contractor shall apply for and
receive the appropriate permits before performing any work in the City's Right of Way. The Contractor
shall also provide the appropriate permit drawings for Building Permits to be issued for the project. The
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City will assist the Contractor with obtaining the appropriate building and right-of-way permits.
1.12. The Contractor shall provide as -built drawings, in an electronic format for all locations
where equipment has been installed and/or work has been performed.
1.13 Contractor recognizes that proper cleanup and removal of construction debris is an
important safety consideration. The Contractor shall be solely responsible for 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 The Contractor is required to furnish a performance bond in the amount of 100% of the
value of the contract. The performance bond must be for the entire term of the Agreement. The
performance bond must be furnished by a company licensed to do business in the State of Illinois. Such
bond must be furnished to the City of Evanston Purchasing Department within ten (10) calendar days of
contract award notice, and prior to contract commencement of the Work. Failure to provide this bond
shall constitute a breach of contractor's obligations under this Agreement.
1.15 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 (720 ILCS 5/33 E-3, E-4).
1.16 The Contractor certifies pursuant to the Illinois Human Rights Act (775 ILCS 5/2105
et. seg.), 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.
1.17 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/RFQ;
d) Other exhibits and schedules, if any, listed in this Agreement;
e) Other Contract Documents, if any; and
f) Modifications to this Agreement issued after execution thereof.
1.18 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 1.17, this
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Agreement shall control. The City and the Contractor may amend this Section 1.18 as provided by
Section 13 hereinbelow.
1.19 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.
1.20 Contractor 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.
1.21 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 (30 ILCS 500/50-10.5).
1.22 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.
1.23 Contractor certifies that it is not delinquent in the payment of any fees, fines or debts to
the City of Evanston.
SECTION 2 — Additional Services
2.1 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 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 5 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) Preparation of substantial change orders requested by the City;
f) Additional Services in connection with the Project including services normally furnished
by the City and services not otherwise provided for in this Agreement.
g) Preparation to serve or serving as an expert witness for the City an any litigation or other
proceeding involving the Project; and
h) Additional Services and costs necessitated by one -of -town travel required of the
Contractor other than visits to the Project site(s) as required by Section 1.
2.2 The City may, upon written notice, and without invalidating this Agreement, require
changes resulting in the revision or abandonment of work already performed by the 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, and C that cause the total payments due Contractor
under this Agreement to exceed $102,350 must be addressed either in a written Change Order or in a
written amendment to this Agreement approved by both parties.
2.3 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.
SECTION 3 — The Citv's Responsibilities
3.1 The City shall designate, in writing, a person to act as its Project Manager for the work to
be performed under this Agreement. Such person shall have complete authority to transmit instructions,
receive information, and interpret and define the City's policies and decisions with respect to the work
covered by this Agreement. At all times, the City and the Project Manager shall not be responsible for
the means and methods of any and all work done on the Project, nor be responsible for construction site/
area cleanup or safety compliance on this Project.
3.2 The City shall assist the Contractor by placing at its disposal all available information
pertinent to the site of the Project, including previous reports and any other data relative to design and
construction of the Project.
3.3 The City shall make all reasonable efforts to provide access to, and provisions for, the
Contractor to enter upon public and private lands as required for the Contractor to perform its work
under this Agreement.
3.4 The City shall examine all studies, reports, sketches, estimates, specifications, drawings,
proposals and other documents presented by the Contractor and shall render in writing decisions
pertaining thereto within a reasonable time so as not to delay the work of the Contractor.
3.5 The City shall provide such legal, accounting and insurance counseling services as may
be required by the City, relative to the City for the Project.
3.6 The City shall give prompt written notice to the Contractor whenever the City observes or
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otherwise becomes aware of any defect in the Project or with Contractor's Work.
3.7 The City shall furnish or direct the Contractor to provide, at the City's expense, necessary
additional services pursuant to Section 2 of this Agreement, or other services as required.
3.8 The City shall give the Contractor credit for its services performed under this Agreement
in its official communications, published articles and project identification signage at the discretion of
the City.
3.9 The City shall evaluate the 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 shall be a factor when future assignments are being considered.
3.10 The City makes no representation or warranty of any nature whatsoever as to the
accuracy of information or documentation provided by the City to the Contractor which were generated
or provided by third parties.
SECTION 4 — Period of Service
4.1 The Contractor shall commence work on the Project within five business days of the
execution of this Agreement, and after supplying the City with the Contractor's performance bond and
all required insurance documents. 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. Contractor shall continue to
perform its obligations while any dispute concerning the Agreement is being resolved, unless otherwise
directed by the City.
4.2 Each phase of the project shall be completed in accordance with the activities outlined in
the City's Bid 12-12, Exhibit A. Project phases include:
4.2.1 Phase l: Construction
SECTION 5 — Pavment for Services and Reimbursements
5.1 All equipment orders will be invoiced immediately by Contractor, and reviewed promptly
by City, and the City shall promptly process the invoice for appearance on the City's bills list for
approval at the next City Council meeting. The Contractor shall provide a detailed invoice that relates
invoiced items to the Contractor's response to Bid 12-12 in both quantity and unit cost. Contractor will
receive physical payment only after the invoiced Work is performed and/or the Project equipment
ordered is onsite, inventoried and approved by the City Project Manager.
5.2 Within the first five (5) business days of each month, the Contractor shall invoice the
City for labor work completed during the previous month. The Contractor shall provide a detailed
invoice that relates invoiced items to the Contractor's response to Bid 12-12 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.
5.3 In the event of termination by the City of this Agreement pursuant to paragraph 6.1 after
completion of any phase of the basic services, fees due the 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.
5.4 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 2.2 of this Agreement. Compensation for improper performance by the
Contractor is disallowed.
5.5 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
Service Center Fleet Services Make-up Air Unit Replacement Project. 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 as -built drawings 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 shall review and the Contractor modify, as necessary, any as -built
drawings to the satisfaction of the City. Punch list items and as -built drawings must be approved by the
City prior to the Contractor submitting its final invoice for payment.
5.6 The Contractor shall submit an Affidavit and a final waiver of its lien, and all final
waivers of liens of any 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 prescribed by the City.
5.7 All Project invoices shall be sent to:
Mr. John Devaney
City of Evanston
Department of Parks, Recreation and Community Services
2100 Ridge Avenue
Evanston, Illinois 60201
with a copy to:
Ms. Jewell Jackson
City of Evanston
Purchasing Division
2100 Ridge Avenue
Evanston, Illinois 60201
SECTION 6 - Notice and Cure/Termination
6.1 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 6.1 shall apply during the pendency of
Contractor's work on this Project, in addition to the reserved rights of the City enumerated in this
Agreement as follows:
5.2 City's right to withhold payment;
14.2 Contractor's duty to revise and correct errors; and
14.3 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, in person, 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 6.1. 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 6.1 shall otherwise affect the right of either party to exercise its rights in Section 6.2.
6.2 This Agreement may be terminated at any time upon thirty (30) days written notice by
either party in the event of substantial failure to perform in accordance with the terms hereof by the
other party through no fault of the terminating party. In addition, the City shall have the right to
terminate this Agreement upon thirty (30) days written notice for any reason. Mailing of such notice
shall be equivalent to personal notice and shall be deemed to have been given at the time of receipt.
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.
6.3 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, and such other items specifically identified by the City.
Upon receipt of said items, the Contractor shall be paid for labor and expenses incurred to the date of
termination as provided in Section 5.3. If this Agreement is terminated due to the City's substantial
failure to perform, the Contractor shall be paid for labor and expenses incurred to date as provided in
Section 5, subject to set off for any damages, losses or claims against the City resulting from or relating
to Contractor's performance or failure to perform under this Agreement. This Agreement is subject to
termination by either party if either party is restrained by a state or federal court of competent
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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.
6.4 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 furnished evidence that competent
professional services can still be furnished as scheduled.
6.5 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.
SECTION 7 - Insurance
7.1 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 7, 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 of Insurance issued to
the City in compliance with this Section that conflict with the provisions of this Section 7 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 policy(ies) evidencing the amounts set forth in Section 7.2, 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) 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.
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7.2 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
d) Errors and omissions or professional liability insurance respecting any insurable
professional services hereunder in the amount of at least one million dollars ($1,000,000).
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.
SECTION 8 - Indemnification
8.1 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.
8.2 Nothing contained herein shall be construed as prohibiting the City, or its officers, agents,
or employees, from defending through the selection and use of their own agents, attorneys, and experts,
any claims, actions or suits brought against them. The 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
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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, Kotecki v. Cyclops
Welding Corporation, 146 M. 2d 155 (1991). The City, however, does not waive any limitations it may
have on its liability under the Illinois Workers Compensation Act, the Illinois Pension Code or any other
statute.
8.3 The 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.
8.4 All provisions of this Section 8 shall survive completion, expiration, or termination of
this Agreement.
SECTION 9 — Drawinas and Documents
9.1 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.
9.2 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.
SECTION 10 — Validity of Fees
10.1 The Contractor fees set forth in Exhibit C shall be valid provided that a Notice to Proceed
for the Project is issued no later than fifteen (15) calendar days after the City receives all signed
contracts, insurance documents, and bonds. If this condition is not met, the consulting fees shall be
renegotiated to reflect cost escalation.
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SECTION it — Successors and Assigns
11.1 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.
SECTION 12 — Force Mai eure
111 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;
f) Work stoppages, strikes, lockouts, or labor disputes;
g) Public disorders, civil violence, or disobedience;
h) Riots, blockades, sabotage, insurrection, or rebellion;
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.
SECTION 13 — Amendments and Modifications
13.1 Except as otherwise provided herein, the nature and scope of services specified in this
Agreement may only be modified by 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
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and duly authorized and signed by the authorized representatives of the parties.
SECTION 14 — Standard of Care & Warranty
14.1 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.
14.2 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.
14.3 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.
14.4 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.
14.5 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
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be in addition to the City's rights under the law or other guarantees or warranties, express or implied.
14.6 The provisions of this Section 14 shall survive the completion, expiration or termination
of this Agreement.
SECTION 15 — Savings Clause
15.1 If any provision of this Agreement, or the application of such provision, shall be rendered
or declared invalid by a court of competent jurisdiction, or by reason of its requiring any steps, actions,
or results, the remaining parts or portions of this Agreement shall remain in full force and effect.
SECTION 16 — Captions and Paragraph Headings
16.1 Captions and paragraph headings are for convenience only and are not a part of this
Agreement and shall not be used in construing it.
SECTION 17 — Non -Waiver of Rights
17.1 No failure of either party to exercise any power given to it hereunder or to insist upon
strict compliance by the other party with its obligations hereunder, and no custom or practice of the
parties at variance with the terms hereof, nor any payment under this Agreement shall constitute a
waiver of either party's right to demand exact compliance with the terms hereof
SECTION 18 — Entire Agreement
18.1 This Agreement sets forth all the covenants, conditions and promises between the parties
with regard to the subject matter set forth herein. There are no covenants, promises, agreements,
conditions or understandings between the parties, either oral or written, other than those contained in
this Agreement. This Agreement has been negotiated and entered into by each party with the opportunity
to consult with its counsel regarding the terms therein. No portion of the Agreement shall be construed
against a party due to the fact that one party drafted that particular portion as the rule of contra
proferentem shall not apply.
SECTION 19 — Governing Law
19.1 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.
SECTION 20 — Ownership of Contract Documents
20.1 Contractor is specifically prohibited from using in any form or medium, the name or logo
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of the City for public advertisement, unless expressly granted written permission by the City.
Submission or distribution of documents to meet official regulatory requirements or for similar purposes
in connection with this Project is not to be construed as publication in derogation of the City's reserved
rights.
SECTION 21— Notice
21.1 Any notice required to be given by this Agreement shall be deemed sufficient if made in
writing and sent by certified mail, return receipt requested, or by personal service, to the persons and
addresses indicated below or to such other addresses as either party hereto shall notify the other party of
in writing pursuant to the provisions of this Subsection:
John Devaney
City of Evanston Project Manager, Bid 12-12
2100 Ridge Avenue
Evanston, Illinois 60201
if to the Contractor:
Mechanical Concepts of Illinois, Inc.
333 S. O'Hare Drive
Romeoville, Illinois 60446
21.2 Mailing of such notice as and when provided above shall be equivalent to personal notice
and shall be deemed to have been given at the time of mailing.
SECTION 22 — Severability
22.1 Except as otherwise provided herein, the invalidity or unenforceability of any particular
provision, or part thereof, of this Agreement shall not affect the other provisions, and this Agreement
shall continue in all respects as if such invalid or unenforceable provision had not been contained herein.
SECTION 23 — Execution of Aereement
23.1 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 1 hereof, which date shall be the effective date of
this Agreement.
SECTION 24 — Counterparts
24.1 For convenience, this Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original.
SECTION 25 — Authorizations
25.1 The 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
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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.
IN WUNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their
duly authorized representatives on the day and date first written on Page I above.
CITY OF EG6�S� ?".
BCONTRACjOR
WallyiB/o/bkiew d :; i Name: ��-pv�iQQ - W3t0),
Its: City Manag Its: � /. �J -
Approved as to form:
By: � 4��J�
W. Grant Farrar,
Its: Corporation Counsel
Revision June 2011
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