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CITY OF EVANSTON
PROFESSIONAL SERVICES AGREEMENT
The parties referenced herein desire to enter into an agreement for professional
services for
Evanston Water utility Hydraulic Modeling Services
(RFP No. 12-178)'
THIS AGREEMENT (hereinafter referred to as the "Agreement") entered into this —
day of 20_, 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 MWH Americas, Inc., with offices located at
175 W. Jackson Blvd., Suite 1900, Chicago, Illinois 60604, (hereinafter referred to as
the "Consultant"). Compensation for all basic Services ("the Services") provided by the
Consultant pursuant to the terms of this Agreement shall not exceed $35,000 per year,
for a total of $105,000 over three years,
COMMENCEMENT DATE
Consultant shall commence the Services on the date provided in each executed
task order. If a task order does not provide a specific commencement date,
Consultant shall commence the Services no later than three (3) DAYS AFTER
City executes and delivers the task order to Consultant.
Consultant shall complete the Services by the date set forth in each task order. If
a task order does not provide a specific completion date, Consultant shall
perform the services diligently and continuously with an adequate number of
qualified employees to ensure completion as soon as reasonably possible. The
completion date of this contract is December 31, 2015.
City shall pay Consultant those fees as set forth in each authorized task order
based on the Schedule of Compensation attached as Exhibit C. Payment shall
be made upon the completion of each task order or for completion of a specific
milestone outlined in the task order. Any expenses in addition to those set forth
in each authorized task order must be specifically approved by the City in writing
in advance. The not -to -exceed value for this contract is $105,000.
Consultant shall perform the services (the "Services") set forth in each authorized
task order. Services are those as defined in the City's Request for
Proposal/Qualifications No. #12-178 (Exhibit A), Consultant's Response to the
Proposal (Exhibit B), and Consultant's General Scope of Services (Exhibit C).
A. Services. Consultant shall perform the Services in a professional and
workmanlike manner. All Services performed and documentation (regardless of
format) provided by Consultant shall be in accordance with the standards of
reasonable care and skill of the profession, free from errors or omissions,
ambiguities, coordination problems, and other defects. Consultant shall take into
account any and all applicable plans and/or specifications furnished by City, or by
others at City's direction or request, to Consultant during the term of this
Agreement. All materials, buildings, structures, or equipment designed or
selected by Consultant shall be, to the best of Consultant's knowledge, workable
and fit for the intended use thereof, and will comply with all applicable
governmental requirements. Consultant shall require its employees to observe
the working hours, rules, security regulations and holiday schedules of City while
working and to perform its Services in a manner which does not unreasonably
interfere with the City's business and operations, or the business and operations
of other tenants and occupants in the City which may be affected by the work
relative to this Agreement. Consultant shall take all necessary precautions to
assure the safety of its employees who are engaged in the performance of the
Services, all equipment and supplies used in connection therewith, and all
property of City or other parties that may be affected in connection therewith. If
requested by City, Consultant shall promptly replace any employee or agent
performing the Services if, in the opinion of the City, the performance of the
employee or agent is unsatisfactory.
Consultant is responsible for conforming its final work product to generally
accepted professional standards for all work performed pursuant to this
Agreement. Consultant is an independent Consultant and is solely responsible
for all taxes, withholdings, and other statutory or contractual obligations of any
sort, including but not limited to, Worker's Compensation Insurance. Nothing in
this Agreement accords any third -party beneficiary rights whatsoever to any non-
party to this Agreement that any non-party may seek to enforce. Consultant
acknowledges and agrees that should Consultant or its subconsultants provide
false information, or fall to be or remain in compliance with this Agreement, the
City may void this Agreement. The Consultant warrants and states. that it has
read the Contract Documents, and agrees to be bound thereby, including all
performance guarantees as respects Consultant's work and all indemnity and
Insurance requirements.
The Consultant shall obtain prior approval from the City prior to
subcontracting with any entity or person to perform any of the work required
under this Agreement. If the Consultant subcontracts any of the services to be
performed under this Agreement, the subconsultant agreement shall provide that
the services to be performed under any such agreement shall not be sublet, sold,
transferred, assigned or otherwise disposed of to another entity or person without
the City's prior written consent. The Consultant shall be responsible for the
accuracy and quality of any subconsultant's work.
All subconsultant agreements shall include verbatim or by reference the
provisions in this Agreement binding upon Consultant as to all Services provided
by this Agreement, such that it is binding upon each and every subconsultant that
does work or provides Services under this Agreement.
The Consultant shall cooperate fully with the City, other City contractors,
other municipalities and local government officials, public utility companies, and
others, as may be directed by the City. This shall include attendance at meetings,
discussions and hearings as requested by the City. This cooperation shall extend
to any investigation, hearings or meetings convened or instituted by OSHA
relative to this Project, as necessary. Consultant shall cooperate with the City in
scheduling and performing its Work to avoid conflict, delay in or interference with
the work of others, if any, at the Project.
Except as otherwise provided herein, the nature and scope of Services
specified in this Agreement may only be modified by a writing approved by both
parties. This Agreement may be modified or amended from time to time
provided, however, that no such amendment or modification shall be effective
unless reduced to writing and duly authorized and signed by the authorized
representatives of the parties.
B. Representation and Warranties. Consultant represents and warrants
that: (1) Consultant possesses and will keep in force all required licenses to
perform the Services, (2) the employees of Consultant performing the Services
are fully qualified, licensed as required, and skilled to perform the Services.
C. Termination. City may, at any time, with or without cause, terminate this
Agreement upon seven (7) days written notice to Consultant. If the City
terminates this agreement, the City will make payment to Consultant for Services
performed prior to termination. Payments made by the City pursuant to this
Agreement are subject to sufficient appropriations made by the City of Evanston
City Council. In the event of termination resulting from non -appropriation or
insufficient appropriation by the City Council, the City's obligations hereunder
shall cease and there shall be no penalty or further payment required. In the
event of an emergency or threat to the life, safety or welfare of the citizens of the
City, the City shall have the right to terminate this Agreement without prior written
notice. Within thirty (30) days of termination of this Agreement, the Consultant
shall turn over to the City any documents, drafts, and materials, including but not
limited to, outstanding work product, data, studies, test results, source
documents, AutoCad Version 2007, PDF, ArcView, Word, Excel spreadsheets,
technical specifications and calculations, and any other such items specifically
identified by the City related to the Services herein.
D. Independent Consultant. Consultant's status shall be that of an
independent Consultant and not that of a servant, agent, or employee of City.
Consultant shall not hold Consultant out, nor claim to be acting, as a servant,
agent or employee of City. Consultant is not authorized to, and shall not, make
or undertake any agreement, understanding, waiver or representation on behalf
of City. Consultant shall at its own expense comply with all applicable workers
compensation, unemployment insurance, employer's liability, tax withholding,
minimum wage and hour, and other federal, state, county and municipal laws,
ordinances, rules, regulations and orders. Consultant agrees to abide by the
Occupational Safety & Health Act of 1970 (OSHA), and as the same may be
amended from time to time, applicable state and municipal safety and health
laws and all regulations pursuant thereto.
E. Conflict of Interest. Consultant represents and warrants that no prior or
present services provided by Consultant to third parties conflict with the interests
of City in respect to the Services being provided hereunder except as shall have
been expressly disclosed in writing by Consultant to City and consented to in
writing to City.
E. Ownership of Documents and Other Materials. All originals, duplicates
and negatives of all plans, drawings, reports, photographs, charts, programs,
models, specimens, specifications, AutoCad Version 2007, Excel spreadsheets,
PDF, and other documents or materials required to be furnished by Consultant
hereunder, including drafts and reproduction copies thereof, shall be and remain
the exclusive property of City, and City shall have the unlimited right to publish
and use all or any part of the same without payment of any additional royalty,
charge, or other compensation to Consultant. Upon the termination of this
Agreement, or upon request of City, during any stage of the Services, Consultant
shall promptly deliver all such materials to City. Consultant shall not publish,
transfer, license or, except in connection with carrying out obligations under this
Agreement, use or reuse all or any part of such reports and other documents,
including working pages, without the prior written approval of City, provided,
however, that Consultant may retain copies of the same for Consultant's own
general reference. Methodologies, process know-how and other instruments of
service used to prepare the Work Product shall remain the property of
Consultant. Any modification or reuse of the documents or work product without
written verification or adaptation by Consultant for the specific purpose intended
will be at City's sole risk and without liability or legal exposure to Consultant or to
Consultant's subcontractors and subconsultants.
G. Payment. Invoices for payment shall be submitted by Consultant to City
at the address set forth above, together with reasonable supporting
documentation, City may require such additional supporting documentation as
City reasonably deems necessary or desirable. Payment shall be made in
accordance with the Illinois Local Government Prompt Payment Act, after City's
receipt of an invoice and all such supporting documentation.
H. Right to Audit. Consultant shall for a period of three years following
performance of the Services, keep and make available for the inspection,
examination and audit by City or City's authorized employees, agents or
representatives, at all reasonable time, all records respecting the services and
expenses incurred by Consultant, including without limitation, all book, accounts,
memoranda, receipts, ledgers, canceled checks, and any other documents
indicating, documenting, verifying or substantiating the cost and appropriateness
of any and all expenses. If any invoice submitted by Consultant is found to have
been overstated, Consultant shall provide City an immediate refund of the
overpayment together with interest at the highest rate permitted by applicable
law, and shall reimburse all of City's expenses for and in connection with the
audit respecting such invoice.
I. Indemnity. in addition to any liability or obligation of the Consultant to
the City under any other provision of this Agreement, statute or otherwise,
Consultant shall be liable and will hold harmless, indemnify and defend City from
and against any and all demands, judgments, awards, losses, damages, cost
claims or liabilities which City may sustain as a result of any negligent or wrongful
act of Consultant, its agents, servants, employees, officers, or subcontractors; or
any claim made by employees or agents of Consultant, to the extent caused by
the negligence of Consultant in the performance of the Services.
J. Insurance. Consultant shall carry and maintain at its own cost with such
companies as are reasonably acceptable to City all necessary liability insurance
(which shall include as a minimum the requirements set forth below) during the
term of this Agreement, for damages caused or contributed to by Consultant, and
insuring Consultant against claims which may arise out of or result from
Consultant's performance or failure to perform the Services hereunder: (1)
worker's compensation in statutory limits and employer's liability insurance in the
amount of at least $500,000, (2) comprehensive general liability coverage, and
designating City as additional insured for not less than $3,000,000 combined
single limit for bodily injury, death and property damage, per occurrence, (3)
comprehensive automobile liability insurance covering owned, non -owned and
leased vehicles for not less than $1,000,000 combined single limit for bodily
injury, death or property damage, per occurrence, and (4) errors and omissions
or professional liability insurance respecting any insurable professional services
hereunder in the amount of at least $1,000,000. Consultant shall give to the City
certificates of insurance for all Services done pursuant to this Agreement before
Consultant performs any Services, evidencing the coverage and amounts set
forth in this Section. The City may also require Consultant to provide copies of
the Additional Insured Endorsement to said poilcy(les) which name the City as an
Additional Insured for all of Consultant's Services and work under this
Agreement. Any limitations or modification on the certificate of insurance issued
to the City in compliance with this Section that conflict with the provisions of this
Section shall have no force and effect. Consultant's certificate of insurance shall
contain a provision that the coverage afforded under the policy(s) will not be
canceled or reduced without thirty (30) days prior written notice (hand delivered
or registered mail) to City. Consultant understands that the acceptance of
certificates, policies and any other documents by the City in no way releases the
Consultant and its subcontractors from the requirements set forth herein. In the
event Consultant fails to purchase or procure insurance as required above, the
parties expressly agree that Consultant shall be in default under this Agreement,
and that the City may recover all losses, attorney's fees and costs expended in
pursuing a remedy or reimbursement, at law or in equity, against Consultant.
Consultant acknowledges and agrees that if it fails to comply with all
requirements of this Section, that the City may void this Agreement.
K, Confidentiality. In connection with this Agreement, City may provide
Consultant with information to enable Consultant to render the Services
hereunder, or Consultant may develop confidential information for City.
Consultant agrees (i) to treat, and to obligate Consultant's employees to treat, as
secret and confidential all such information whether or not identified by City as
confidential, (11) not to disclose any such information or make available any
reports, recommendations and /or conclusions which Consultant may make for
City to any person, firm or corporation or use the same in any manner
whatsoever without first obtaining City's written approval, and (III) not to disclose
to City any information obtained by Consultant on a confidential basis from any
third party unless Consultant shall have first received written permission from
such third party to disclose such information.
Pursuant to the Illinois Freedom of Information Act, 51LCS 140/7(2),
records in the possession of others whom the City has contracted with to perform
a governmental function are covered by the Act and subject to disclosure within
limited statutory timeframes (five (5) working days with a possible five (5) working
day extension). Upon notification from the City that it has received a Freedom of
Information Act request that calls for records within the Consultant's control, the
Consultant shall promptly provide all requested records to the City so that the
City may comply with the request within the required timeframe. The City and the
Consultant shall cooperate to determine what records are subject to such a
request and whether or not any exemptions to the disclosure of such records, or
part thereof, is applicable. Vendor shall indemnify and defend the City from and
against all claims arising from the City's exceptions to disclosing certain records
which Vendor may designate as proprietary or confidential. Compliance by the
City with an opinion or a directive from the Illinois Public Access Counselor or the
Attorney General under FOIA, or with a decision or order of Court with jurisdiction
over the City, shall not be a violation of this Section.
L. Use of City's Name or Picture of Property. Consultant shall not in the
course of performance of this Agreement or thereafter use or permit the use of
City's name nor the name of any affiliate of City, nor any picture of or reference
to its Services in any advertising, promotional or other materials prepared by or
on behalf of Consultant, nor disclose or transmit the same to any other party.
M. No Assignments or Subcontracts. Consultant shall not assign or
subcontract all or any part or its rights or obligations hereunder without City's
express prior written approval. Any attempt to do so without the City's prior
consent shall, at City's option, be null and void and of no force or effect
whatsoever. Consultant shall not employ, contract with, or use the services of
any other architect, interior designer, engineer, consultant, special contractor, or
other third party in connection with the performance of the Services without the
prior written consent of City.
N. Compliance with Applicable Statues, Ordinances and Regulations. In
performing the Services, Consultant shall comply with all applicable federal,
state, county, and municipal statues, ordinances and regulations, at Consultant's
sole cost and expense, except to the extent expressly provided to the contrary
herein. Whenever the City deems it reasonably necessary for security reasons,
the City may conduct at its own expense, criminal and driver history background
checks of Consultant's officers, employees, subcontractors, or agents.
Consultant shall immediately reassign any such individual who in the opinion of
the City does not pass the background check.
O. Liens and Encumbrances. Consultant, for itself, and on behalf of all
subcontractors, suppliers, materialmen and others claiming by, through or under
Consultant, hereby waives and releases any and all statutory or common law
mechanics' materialmens' or other such lien claims, or rights to place a lien upon
City property or any improvements thereon in connection with any Services
performed under or in connection with this Agreement. Consultant further
agrees, as and to the extent of payment made hereunder, to execute a sworn
affidavit respecting the payment and lien releases of all subcontractors, suppliers
and materialmen, and a release of lien respecting the Services at such time or
times and in such form as may be reasonably requested by City. Consultant
shall protect City from all liens for labor performed, material supplied or used by
Consultant and/or any other person in connection with the Services undertaken
by consultant hereunder, and shall not at any time suffer or permit any lien or
attachment or encumbrance to be imposed by any subConsultant, supplier or
materialmen, or other person, firm or corporation, upon City property or any
improvements thereon, by reason or any claim or demand against Consultant or
otherwise in connection with the Services.
P. Notices. Every notice or other communication to be given by either party
to the other with respect to this Agreement, shall be in writing and shall not be
effective for any purpose unless the same shall be served personally or by
United States certified or registered mail, postage prepaid, addressed if to City as
follows: City of Evanston, 2100 Ridge Avenue, Evanston, Illinois 60201,
Attention: Purchasing Division and to Consultant at the address first above set
forth, or at such other address or addresses as City or Consultant may from time
to time designate by notice given as above provided.
Q. Attorney's Fees. In the event that the City commences any action, suit,
or other proceeding to remedy, prevent, or obtain relief from a breach of this
Agreement by Consultant, or arising out of a breach of this Agreement by
Consultant, the City shall recover from the Consultant as part of the judgment
against Consultant, its attorneys' fees and costs incurred in each and every such
action, suit, or other proceeding.
R. Waiver. Any failure or delay by City to enforce the provisions of this
Agreement shall in no way constitute a waiver by City of any contractual right
hereunder, unless such waiver is in writing and signed by City.
S. Severability. In the event that any provision of this Agreement should be
held void, or unenforceable, the remaining portions hereof shall remain in full
force and effect.
T. Choice of Law. The rights and duties arising under this Agreement shall
be governed by the laws of the State of Illinois. Venue for any action arising out
or due to this Agreement shall be in Cook County, Illinois. The City shall not
enter into binding arbitration to resolve any dispute under this Agreement. The
City does not waive tort immunity by entering into this Agreement.
U. Time. Consultant agrees all time limits provided in this Agreement and
any Addenda or Exhibits hereto are of essence to this Agreement. Consultant
shall continue to perform its obligations while any dispute concerning the
Agreement is being resolved, unless otherwise directed by the City.
V. Survival. Except as expressly provided to the contrary herein, all
provisions of this Agreement shall survive all performances hereunder including
the termination of the Consultant.
W. Damages. In no event shall Consultant be liable to the other for any
indirect, incidental, special or consequential damages whatsoever (including but
not limited to lost profits or interruption of business) arising out of or related to the
services provided under this agreement.
X. Delays. Neither party shall be responsible for a delay in its performance
under this Agreement, other than a delay in payment for Services already
performed, if such delay is caused by extraordinary weather conditions or other
natural catastrophes, war, terrorism, riots, strikes, lockouts or other industrial
disturbances, acts of any governmental agencies or other events beyond the
reasonable control of the claiming party. Consultant shall be entitled to an
equitable adjustment to the Compensation and the Project Schedule as a result
of any such delay.
In the event of the Consultant's noncompliance with any provision of Section 1-
12-5 of the Evanston City Code, the Illinois Human Rights Act or any other
applicable law, the Consultant may be declared nonresponsible and therefore
ineligible for future contracts or subcontracts with the City, and the contract may
be cancelled or voided in whole or in part, and such other sanctions or penalties
may be imposed or remedies invoked as provided by statute or regulation.
During the performance of the contract, the Consultant agrees as follows:
A. That it will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, sexual orientation, marital
status, national origin or ancestry, or age or physical or mental disabilities that do
not impair ability to work, and further that it will examine all job classifications to
determine if minority persons or women are underutilized and will take
appropriate affirmative action to rectify any such underutilization. Consultant
shall comply with all requirements of City of Evanston Code Section 1-12-5.
B. That, in all solicitations or advertisements for employees placed by it on its
behalf, it will state that all applicants will be afforded equal opportunity without
discrimination because of race, color, religion, sex, sexual orientation, marital
status, national origin, ancestry, or disability.
VII. SEXUAL HARASSMENT POLICY
The Consultant certifies pursuant to the Illinois Human Rights Act (775 II -CS 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 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.
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A. Consultant acknowledges and agrees that should Consultant or its
subconsultant provide false information, or fail to be or remain in compliance with
the Agreement, the City may void this Agreement.
B. Consultant certifies that it and its employees will comply with applicable
provisions of the U.S. Civil Rights Act, Section 504 of the Federal Rehabilitation
Act, the Americans with Disabilities Act (42 U.S.C. Section 1201 et seq.) and
applicable rules in performance under this Agreement.
C. If Consultant, or any officer, director, partner, or other managerial agent of
Consultant, has been convicted of a felony under the Sarbanes-Oxley Act of
2002, or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953,
Consultant certifies at least five years have passed since the date of the
conviction.
D. Consultant certifies that it has not been convicted of the offense of bid
rigging or bid rotating or any similar offense of any State in the U.S., nor made
any admission of guilt of such conduct that is a matter of record. (720 ILCS 5/33
E-3, E-4).
E. In accordance with the Steel Products Procurement Act, Consultant
certifies steel products used or supplied in the performance of a contract for
public works shall be manufactured or produced in the U.S. unless the City
grants an exemption.
F. Consultant certifies that it is properly formed and existing legal entity, and
as applicable, has obtained an assumed name certificate from the appropriate
authority, or has registered to conduct business in Illinois and is in good standing
with the Illinois Secretary of State.
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H. Consultant certifies that it is not delinquent in the payment of any fees,
fines, damages, or debts to the City of Evanston.
This Agreement, together with Exhibits A, B, and C sets forth all the covenants,
conditions and promises between the parties with regard to the subject matter set
forth herein. There are no covenants, promises, agreements, conditions or
understandings between the parties, either oral or written, other than those
contained in this Agreement. This Agreement has been negotiated and entered
into by each party with the opportunity to consult with its counsel regarding the
terms therein. No portion of the Agreement shall be construed against a party
due to the fact that one party drafted that particular portion as the rule of contra
proferentem shall not apply.
In the event of any inconsistency between this Agreement, and any Exhibits, this
Agreement shall control over the Exhibits. In no event shall any proposal or
contract form submitted by Consultant be part of this Agreement unless agreed
to in a writing signed by both parties and attached and referred to herein as an
Addendum, and in such event, only the portions of such proposal or contract
form consistent with this Agreement and Exhibits hereto shall be part hereof.
IN WITNESS WHEREOF, the parties hereto have each approved and executed this
Agreement on the day, month and year first above written.
CONSULTANT:
By
Its: Vic€ NESM6tV7 REGION ME1N46CA
FEIN Number: 9.5-18-78805'
Date: 12.18./ 2-
CITY OF EVANSTON
2100 RIDGE AVENUE
EVANSTON, IL 60201
By:'NG c)
Its: Citv Manaaer
Date: I - )- -
Approved as to form:
31/1
W. 'Grant arrar
Corporation Counsel
to the Professional Services Agreement
for
Evanston Water Utility hydraulic Modeling Services
(RFP No.12-178)