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CONTRACTOR SERVICES AGREEMENT
The parties referenced herein desire to enter into an agreement for professional services for
Fire Stations #1 and #2 Mechanical System Improvement Project
THIS AGREEMENT (hereinafter referred to as the "Agreement") entered into this I I th day of June, 2012,
between the City of Evanston, an Il linois municipal corporation with offices located at 2100 Ridge Avenue,
Evanston Illinois 60201 (hereinafter referred to as the "City"), and Therm Flo Inc., with offices located at
251 Holbrook Drive, Wheeling, Illinois 60090, (hereinafter referred to as the "Contractor"). Compensation
(the "Compensation") for all basic services provided by the Contractor pursuant to the terms of this
Agreement shall not exceed $285,875.
Revision October 2011
TABLE OF CONTENTS
1
Services and Duties of the Contractor...................................................6............................
3
2
Standard Certifications.......................................................................................................
6
3
Additional Services/Change Orders',,"",',,.,,. .......
............... .........
8
4
Bonds................................................................................................................................
11
5
Liquidated Damages in the Event Contractor Fails to Complete
the Work .....................
11
6
The City's Responsibilities...............................................................................................
12
7
Period of Service...............................................................................................................
12
8
Payment for Services and Reimbursements......................................................................
12
9
Notice and Cure/Termination...........................................................................................
13
10
Insurance...........................................................................................................................
14
I1
Indemnification.................................................................................................................
16
12
Drawings and Documents.,,,, ...... 0 0 0 .*** . 4 4 4 +4 4 * * a 0 a a a a . . . . . . . . . . . . . .
* , , 4 4 6 6 6 . . . . . . . . . . . . . . . . . . . . . . .
17
13
Successors and Assigns....................................................................................................
17
14
Force Majeure...................................................................................................................
17
15
Amendments and Modifications'....".""," .............
. . . . . . . . . . .
18
16
Standard of Care & Warranty...........................................................................................
18
17
Savings Clause..................................................................................................................
19
18
Non -Waiver of Rights.......................................................................................................19
19
Entire Agreement..............................................................................................................
20
20
Governing Law.................................................................................................................20
21
Ownership of Contract Documents...................................................................................
20
22
Notice................................................................................................................................20
23
Severability.......................................................................................................................21
24
Execution of Agreement...................................................................................................
21
25
Counterparts......................................................................................................................21
26
Authorizations...................................................................................................................21
27
Time ofEssenee................................................................................................................21
WHEREAS, the City intends to retain the services of a qualified and experienced contractor
for the following:
hereto:
Construction of the Fire Stations #1 and #1 Mechanical Systems Improvement Project
WHEREAS, this Agreement shall include the following documents which are attached
a) City of Evanston Bid 12-115, attached as Exhibit A.
b) Contractor's response to Bid 12-115, attached as Exhibit B.
c) Any subcontractor subcontracts related to this Agreement, attached as Exhibit C.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
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 agent or an employee of the City. All employees and subcontractors of the
Contractor shall likewise not be considered to be employees of the City. Contractor is solely
responsible for the means and methods of all work performed under the terms of this Agreement for
this Project ("the Project"). Contractor is an independent Contractor and is solely responsible for all
taxes, withholdings, and other statutory or contractual obligations of any sort, including but not
limited to, Worker's Compensation Insurance. Nothing in this Agreement accords any third -party
beneficiary rights whatsoever to any non-party to this Agreement that any non-party may seek to
enforce. Contractor acknowledges and agrees that should Contractor or its subcontractors provide
false information, or fail to be or remain in compliance with this Agreement, the City may void this
Agreement.
1.2 The Contractor warrants and states that it has read the Contract Documents, and
agrees to be bound thereby, including all performance guarantees as respects Contractor's work and
all indemnity and insurance requirements. Contractor further affirms that it has visited the Project
site and has become familiar with all special conditions, if any, at the Project site. Contractor shall
perform the Work and its obligations under this Agreement in accordance with and subject to the
Contract Documents to the full extent that each such provision is applicable to the Work.
1.3 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,
Construction Contract Agreement Page 3
sufficient guards, barricades, lights, and enclosures to protect the Work.
1.4 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.
1.5 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.
1.6 The Contractor shall employ only persons duly licensed by the State of Illinois to
perform the professional services required under this Agreement for which applicable Illinois law
requires a license, subject to prior approval of the City. The Contractor shall employ only well
qualified persons to perform any of the remaining services required under this Agreement, also
subject to prior approval of the City. The City reserves the right to require replacement of
Contractor, subcontractor, or supplier personnel for any reason. Contractor will replace the
unacceptable personnel at no charge to the City. For all solicitations or advertisements placed by or
on behalf of Contractor for employees for this Project it will state that the Contractor is an Equal
Opportunity Employer.
1.7 Pursuant to the Illinois Freedom of Information Act, 5 ILCS 140/7(2), records in the
possession of others whom the City has contracted with to perform a governmental function are
covered by the Act and subject to disclosure within limited statutory timeframes (five (5) working
days with a possible five (5) working day extension). Upon notification from the City that it has
received a Freedom of Information Act request that calls for records within the Contractor's control,
the Contractor shall promptly provide all requested records to the City so that the City may comply
with the request within the required timeframe. The City and the Contractor shall cooperate to
determine what records are subject to such a request and whether or not any exemptions to the
disclosure of such records, or part thereof, is applicable. Contractor shall indemnify and defend the
City from and against all claims arising from the City's exceptions to disclosing certain records
which Contractor may designate as proprietary or confidential. Compliance by the City with an
opinion or a directive from the Illinois Public Access Counselor or the Attorney General under
FOIA, or with a decision or order of Court with jurisdiction over the City, shall not be a violation of
this Section.
1.8 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 may,
upon request of the City, submit to the City a draft subcontractor agreement for City review and
approval prior to the execution of such an agreement. Any previously entered into subcontractor
agreement(s) are attached as Exhibit C. If the Contractor subcontracts any of the services to be
performed under this Agreement, the subcontractor agreement shall provide that the services to be
performed under any such agreement shall not be sublet, sold, transferred, 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
Fire #1 and #2 Mechanical Improvements Contract Page 4
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 acknowledges that it shall enforce and comply with all applicable
Occupational Safety and Health Administration standards (OSHA) for this Project in effect as of the
date of the execution of this Agreement, or as otherwise promulgated by OSHA in the future taking
effect during the pendency of this Project. Contractor shall enforce all such standards and ensure
compliance thereto as to its own agents and employees, and as to the agents and employees of any
subcontractor throughout the course of this Project. Contractor is solely responsible for enforcing
and complying with all applicable safety standards and requirements on this Project, and is solely
responsible for correcting any practices or procedures which do not comply with the applicable
safety standards and requirements for this Project.
1.11 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.
1.12 The Contractor shall perform the work required under this Agreement pursuant to
high quality industry standards expected by the City. The Contractor shall apply for and receive all
appropriate permits before performing any work in the City. The Contractor shall also provide the
appropriate permit drawings for Building Permits to be issued for the Project, if said permits are
obligated by the Project. The City will assist the Contractor with obtaining the appropriate building
and right-of-way permits.
1.13 The Contractor shall provide drawings of record, in the following 3 electronic fornats
for all locations where equipment has been installed and/or work has been performed. The
electronic formats required by this Section 1.13 are AutoCad Version 2007 and PDF.
1.14 Contractor recognizes that proper cleanup and removal of construction debris is an
important safety consideration. The Contractor shall be solely responsible for daily construction
site/area cleanup and removal of all construction debris in accordance with City -approved disposal
practices. Contractor shall be solely responsible for identifying and removing at its expense all
hazardous material and waste which it uses and generates.
1.15 To the extent that there is any conflict between a provision specified in this
Agreement, with a provision specified in any of the other Contract Documents, as defined in Section
1.15, this Agreement shall control. The City and the Contractor may amend this Section 1.15 as
Fire #1 and #2 Mechanical Improvements Contract Page 5
provided by Section 15 hereinbelow.
The Contractor acknowledges and agrees that the City has no retained control over any of the
Work done pursuant to this Agreement, and that the City is expressly exempt from the retained
control exception as defined in the Restatement of Torts, Second, Section 414. This provision shall
survive completion, expiration, or termination of this Agreement.
1.16 The Contract Documents for this Project consist of:
a) This Agreement;
b) The City's Bid, and the plans, specifications, general conditions, drawings addenda,
and modifications thereto;
c) The Contractor's response to the Bid;
d) Other exhibits and schedules, if any, listed in this Agreement;
e) Amendments or Other Contract Documents, if any; and
f) Amendments/Modifications to this Agreement issued after execution thereof.
1.17 Asa condition of receiving payment, Contractor must (i) be in compliance with the
Agreement, (ii) pay its employees prevailing wages when required by law (Examples of prevailing
wage categories include public works, printing, janitorial, window washing, building and grounds
services, site technician services, natural resource services, security guard and food services).
Contractor is responsible for contacting the Illinois Dept. of Labor 217-782-6206;
httD://www.state.il.us/Department/idol/index.htm to ensure compliance with prevailing wage
requirements), (iii) pay its suppliers and subcontractors according to the terms of their respective
contracts, and (iv) provide lien waivers to the City upon request.
Standard Certifications
Contractor acknowledges and agrees that compliance with this section and each subsection
for the term of the Agreement is a material requirement and condition of this Agreement. By
executing this Agreement, Contractor certifies compliance with this section and each subsection and
is under a continuing obligation to remain in compliance and report any non-compliance.
This section, and each subsection, applies to subcontractors used on this Agreement.
Contractor shall include these Standard Certifications in any subcontract used in the performance of
the Agreement.
If this Agreement extends over multiple fiscal years, Contractor and its subcontractors shall
confirm compliance with this section in the manner and format determined by the City by the date
specified by the City and in no event later than January 1 of each year that this Agreement remains
in effect.
If the City determines that any certification in this section is not applicable to this
Agreement, it may be stricken, subject to approval by the City, without affecting the remaining
subsections.
2.1 As part of each certification, Contractor acknowledges and agrees that should
Fire #1 and #2 Mechanical Improvements Contract Page 6
Contractor or its subcontractors provide false information, or fail to be or remain in compliance with
the Standard Certification requirements, one or more of the following sanctions will apply:
• the Agreement may be void by operation of law,
• the City may void the Agreement, and
• Contractor and its subcontractors may be subject to one or more of the following:
suspension, debarment, denial of payment, civil fine, or criminal penalty.
2.2 By signing this Agreement, the Contractor certifies that it has not been barred from
being awarded a contract with a unit of State or local Government as a result of bid rigging or bid
rotating or similar offense, nor has it made any admission of guilt of such conduct that is a matter of
public record. (720 ILCS 5/33 E-3, E-4).
2.3 In the event of the Contractor's noncompliance with any provision of Section 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.
2.4 During the term of this Agreement, the Contractor agrees as follows:
a) That it will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, sexual orientation, marital status, national origin
or ancestry, or age or physical or mental disabilities that do not impair ability to
work, and further that it will examine all job classifications to determine if minority
persons or women are underutilized and will take appropriate affirmative action to
rectify any such underutilization. Consultant shall comply with all requirements of
City of Evanston Code Section 1-12-5.
b) That, in all solicitations or advertisements for employees placed by it on its behalf, it
will state that all applicants will be afforded equal opportunity without
discrimination because of race, color, religion, sex, sexual orientation, marital status,
national origin, ancestry, or disability.
2.5 The Contractor 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 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.
Fire #1 and #2 Mechanical Improvements Contract Page 7
2.6 In accordance with the Steel Products Procurement Act (30 ILCS 565), Contractor
certifies steel products used or supplied in the performance of a contract for public works shall be
manufactured or produced in the U.S. unless the City grants an exemption.
2.7 Contractor certifies that it is properly formed and existing legal entity and as
applicable has obtained an assumed name certificate from the appropriate authority, or has registered
to conduct business in Illinois and is in good standing with the Illinois Secretary of State.
2.8 If Contractor, or any officer, director, partner, or other managerial agent of
Contractor, has been convicted of a felony under the Sarbanes-Oxley Act of 2002, or a Class 3 or
Class 2 felony under the Illinois Securities Law of 1953, Contractor certifies at least five years have
passed since the date of the conviction.
2.9 Contractor certifies that if more favorable terms are granted by Contractor to any
similar governmental entity in any state in a contemporaneous agreement let under the same or
similar financial terms and circumstances for comparable supplies or services, the more favorable
terms will be applicable under this Agreement.
2.10 Contractor certifies that it is not delinquent in the payment of any fees, fines,
damages, or debts to the City of Evanston.
2.11 The Contractor certifies that all Design Professionals performing the Work under this
Agreement will ensure that the Project shall be designed in conformance with the Americans with
Disabilities Act of 1990, 42 U.S.C. Section 12101, et seq., and all regulations promulgated
thereunder. Design Professional means any individual, sole proprietorship, firm, partnership, joint
venture, corporation, professional corporation, or other entity that offers services under the Illinois
Architecture Practice Act of 1989 (225 ILCS 3050, the Professional Engineering Practice Act of
1989 (225 ILCS 325/), the Structural Engineering Licensing Act of 1989 (225 ILCS 340/), or the
Illinois Professional Land Surveyor Act of 1989 (225 ILCS 330/).
2.12 The Contractor shall comply with all federal, state and local laws, statutes,
ordinances, rules, regulations, orders or other legal requirements now in force or which may be in
force during the term of this Agreement. The Contractor shall comply with the Illinois Human
Rights Act, 775 ILCS 511-101 et. seq, Title VII of the Civil Rights Act of 1964, and the Illinois
Prevailing Wage Act, 820 ILCS 130/0.01 et. seq.
3 Additional Services/Change Orders
3.1 If the representative of the City responsible for the Project verbally requests the
Contractor to perform additional services, the Contractor shall confirm in writing that the services
have been requested and that such services are additional services. Failure of the City to respond to
the Contractor's confirmation of said services within thirty (30) calendar days of receipt of the
notice shall be deemed a rejection of, and refusal to pay for the additional services. Contractor shall
not perform any additional services until City has confirmed approval of said additional services in
writing. If authorized in writing by the City, the Contractor shall furnish, or obtain from others,
additional services of the following types, which shall be paid for by the City as set forth in Section
Fire #1 and #2 Mechanical Improvements Contract Page 8
9 of this Agreement:
a) Additional Services due to significant changes in scope of the Project or its design,
including, but not limited to, changes in size, complexity or character of
construction, or time delays for completion of work when such delays are beyond the
control of the Contractor;
b) Revisions of previously approved studies, reports, design documents, drawings or
specifications;
c) Preparation of detailed renderings, exhibits or scale models for the Project;
d) Investigations involving detailed consideration of operations, maintenance and
overhead expenses for the preparation of rate schedules, earnings and expense
statements, feasibility studies, appraisals and valuations, detailed quantity surveys of
material and labor, and material audits or inventories required for certification of
force account construction performed by the City;
e) Services not otherwise provided for in this Agreement.
3.2 The City may, upon written notice, and without invalidating this Agreement, require
changes resulting in the revision or abandonment of work already performed by the Contractor, or
require other elements of the work not originally contemplated and for which full compensation is
not provided in any portion of this Agreement. Any additional services, abandonment of services
which were authorized by the City, or changes in services directed by the City which result in the
revision of the scope of services provided for in Exhibits A, B, C, and D that cause the total
Compensation due Contractor under this Agreement to exceed $20,000 or more, or increase or
decrease the contract duration by more than 30 days are subject to approval by the Evanston City
Council. These actions must be addressed either in a written Change Order or in a written
amendment to this Agreement approved by both parties.
3.3 Contractor acknowledges and agrees that the Public Works Construction Change
Order Act, 50 ILCS 525/1 et seq. shall apply to all Change Orders for the Project. It is expressly
understood and agreed to by Contractor that it shall not be entitled to any damages or Compensation
from the City on account of delay or suspension of all or any part of the Work. Contractor
acknowledges that delays are inherent in construction projects and Contractor assessed that risk and
fully included that risk assessment within its contract sum specified in its Response to the City Bid
for this Project. The City shall not compensate Contractor for work that is more difficult than the
contract sum specified in its Response would reflect. Delays to minor portions of the Work will not
be eligible for extensions of time.
Delays to the Project caused by labor disputes or strikes involving trades not directly related
to the Project, or involving trades not affecting the Project as a whole will not be eligible for an
extension of time.
The City will not grant an extension of time for a delay by the Contractor's inability to obtain
materials unless the Contractor first furnishes to the City documentary proof. The proof must be
provided in a timely manner in accordance with the sequence of the Contractor's operations and
accepted construction schedule.
Fire #1 and #2 Mechanical Improvements Contract Page 9
In addition to any other changes requested by City (as described in Sections 3.1 and 3.2), the
Company shall be entitled to request (and the City may grant) Change Orders with respect to:
(a) The City -caused delays;
(b) Change in Law;
(c) Force Majeure Events.
The foregoing events shall entitle the Contractor to a change in the Compensation for this
Project, if the Contractor demonstrates that it will unavoidably incur reasonable costs as a result
thereof and the Contractor provides reasonable and detailed documentary support with respect to any
such price impact.
The parties agree to reasonably confer regarding any such disputes with respect to the
issuance of a Change Order.
Any payment for compensable delay will only be based upon actual costs excluding, without
limitation, what damages, if any, the Contractor may have reasonably avoided. The Contractor
understands that this is the sole basis for recovering delay damages and explicitly waives any right to
calculate daily damages for office overhead, profit, or other purported loss.
All Contractor Change Orders authorized under this Section 3 shall be made in writing. In
remitting a Change Order, the Contractor must first show in writing that:
(a) The work was outside the scope of this Agreement,
(b) The extra work was not made necessary due to any fault of Contractor;
(c) The circumstances said to necessitate the change in performance were not reasonably
foreseeable at the time the Agreement was signed;
(d) The change is germane to the original Agreement; and
(e) The Change Order is in the best interest of the City and authorized by law.
Any person who fails to first obtain the City's written authorization for a Change Order
commits a Class 4 felony. The written determination and the written Change Order resulting from
that determination shall be preserved in the contract's file which shall be open to the public for
inspection.
The City reserves all rights and causes of action, at law or equity, to seek redress against
entities or persons who violate the requirements of this Section 3. By initialing below, Contractor
hereby acknowledges that it is bo by this Section 3.
Contractor's Initials:
3.4 The Contracto 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.
Fire #1 and #2 Mechanical Improvements Contract Page 10
4 Bonds
4.1 Before the Scheduled Construction Commencement bate, the Contractor is required
to furnish unconditional performance and payment bonds in the amount of 110% of the
Compensation as security for the faithful performance and completion of all the Contractor's
obligations under the Contract Documents and covering the payment of all materials used in the
performance of this Agreement and for all labor and services performed under this Agreement. All
Bonds shall be issued on a form acceptable to the City. The bonds must be for the entire term of the
Agreement. Failure to provide these bonds shall constitute a breach of Contractor's obligations
under this Agreement. Each surety providing the Bonds must have a Best's rating not less than A+
and be licensed in Illinois and shall be named in the current list of"Companies Holding Certificates
of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as
published in Circular 570 as published in the Federal Register and available on the website of the
U.S. Department of the Treasury, Financial Management Service, at
www.fms.treas.gov/c570/c570.html. All Bonds signed by an agent must be accompanied by a
certified copy of his or her authority to act. It shall be the duty of the Contractor to advise the surety
or sureties of any Change Orders that result in an increase to the Compensation and to ensure that
the amounts of the Bonds are updated to reflect and cover any such increases throughout the course
of the Project. The cost of such Bonds shall be included within the Compensation.
4.2 If the surety behind any Bond furnished by the Contractor is declared bankrupt or
becomes insolvent or its right to do business is terminated in the State or it ceases to meet any of the
requirements of this Contract, the Contractor shall, within [5] days thereafter, substitute another
Bond of equivalent value and surety, both of which must be acceptable to the City. In addition, no
further progress payments under the Agreement will be made by the City until the Contractor
complies with the provisions of this Agreement. The Contractor shall furnish to the City proof of any
required bonds and proof of required insurance as one of the conditions precedent to payment under
the Agreement. Upon the request of any person or entity appearing to be a potential beneficiary of
bonds covering payment or performance of obligations arising under the Contract, the Contractor
shall promptly furnish a copy of the bonds or authorize a copy to be furnished. All surety Bonds
provided for in this Section shall incorporate by reference this Agreement, and any language that
may be in any such surety Bond which conflicts with the provisions of this Agreement that define
the scope of the surety(`s) duty(ies) shall be of no force and effect.
Liquidated Damages in the Event Contractor Fails to Complete the Work
5.1 The parties agree that failure of Contractor to timely complete the Work required by
this Agreement constitutes a default. The parties agree that this default will result in damage and
injury to City. The parties further agree, however, that actual damages incurred by City as result of
such default is difficult if not impossible to ascertain with any degree of certainty or accuracy.
Accordingly, the parties have negotiated and have agreed that for each calendar day after written
notice is delivered to Contractor and Contractor fails to cure such default, that Contractor will pay
City, as and for liquidated damages, and not as a penalty, the sum of $500.00. Contractor shall
reimburse the City for all costs, expenses and fees (including, without limitation, attorneys' fees), if
any, paid by the City in connection with such written demand by City. Contractor stipulates and
agrees that the sums payable by Contractor under this Section are reasonable under the
circumstances existing as of the execution of this Agreement. This Section 5.1 is not intended to
Fire #1 and #2 Mechanical Improvements Contract Page 11
limit any direct damages that may be recoverable by City related to the Company's failure to
complete the Work in accordance with this Agreement. There shall be no early completion bonus if
the Work is completed before the substantial completion date. The City, at its option, may withhold
liquidated damages from progress payments payable to Contractor before the substantial completion
date.
6 The City's Responsibilities
6.1 The City may evaluate the Contractor's and any subcontractor's performance (interim
and final). Timeliness in meeting the Project schedule and the overall relationship with the
Contractor are factors that will be considered in the Contractor's performance rating. An unfavorable
performance rating may be a factor when future assignments are being considered.
6.2 The City makes no representation or warranty of any nature whatsoever as to the
accuracy of information or documentation provided by the City to the Contractor which were
generated or provided by third parties.
7 Period of Service
7.1 The Contractor shall commence work on the Project after supplying the City with the
Contractor's performance and payment bonds and all required insurance documents before starting
its Work on this Project. The City shall determine when the Contractor has completed the Work
required pursuant to this Agreement, and shall determine the date of Final Acceptance. Contractor
recognizes time is of the essence regarding its performance on this Project. Contractor shall
continue to perform its obligations while any dispute concerning the Agreement is being resolved,
unless otherwise directed by the City.
7.2 Each phase of the project shall be completed in accordance with the activities
outlined in the City's Bid 12-115, Exhibit A.
8 Payment for Services and Reimbursements
8.1 Within the first five (5) business days of each month, the Contractor shall invoice the
City for Work completed during the previous month. The Contractor shall provide a detailed invoice
that relates invoiced items to the Contractor's response to Bid 12-115 in both quantity and unit cost.
Any discrepancies in the monthly invoice shall be promptly brought to the attention of the
Contractor by the City Project Manager and efforts shall be made to promptly resolve said
discrepancies between the City and Contractor. In the event the City and Contractor cannot resolve
invoice discrepancies, items in dispute will be removed from the invoice and the City shall approve
the remainder of the invoice. Payment will be made as soon as possible following the City Council
meeting in which the item appeared on the bills list, and in accordance with all applicable laws and
rules of the City of Evanston and the State of Illinois.
8.2 In the event of termination by the City of this Agreement pursuant to paragraph 9.1
after completion of any phase of the basic services, fees due the Contractor for services rendered
through such phase shall constitute final payment for such services, and no further fees shall be due
to the Contractor. In the event of such termination by the City during any phase of the basic services,
the Contractor shall be paid for services rendered on the basis of the proportion of work completed
Fire #1 and #2 Mechanical Improvements Contract Page 12
on the phase to date of termination.
8.3 The City shall have the right to withhold payment to the Contractor due to the quality
of a portion or all of the work performed hereunder which is not in accordance with the requirements
of this Agreement, or which is unsatisfactory, or is due to the Contractor's failure or refusal to
perform any of its obligations hereunder. Compensation in excess of the total contract amount
specified in this Agreement will not be allowed unless justified in the City's sole judgment and
authorized in advance as provided for in Section 3 of this Agreement. Compensation for improper
performance by the Contractor is disallowed.
8.4 Upon completion of the Work performed by the Contractor, prior to the submission of
a request for final payment, the City and Contractor shall perform a final acceptance test and review
of the Work performed and/or equipment installed pursuant to the Agreement. A punch list of items
outstanding will be jointly developed by the City and Contractor. In addition, the Contractor shall
submit drawings of record for the Project for the City to approve. The Contractor shall promptly
resolve all punch list items to the satisfaction of the City, and shall transmit to the City in writing
confirmation that all punch list items have been resolved. The City will review, and the Contractor
shall modify, as necessary, any drawings of record to the satisfaction of the City. Punch list items
and drawings of record must be approved by the City prior to the Contractor submitting its final
invoice for payment.
8.5 The Contractor shall submit an Affidavit and a final waiver of its lien, and all final
waivers of liens of any subcontractors, suppliers, and sub -subcontractors, if applicable, with its final
invoice, stating that all obligations incurred in performance of the professional services have been
paid in full. The Affidavit will also include a statement stating that the professional services were
performed in compliance with the terms of the Agreement. The Affidavit and al I final lien waivers
shall be on a form acceptable to the City.
8.6 All Project invoices shall be sent to:
City of Evanston
Department of Parks, Recreation and Community Services
2100 Ridge Avenue
Evanston, Illinois 60201
Attention: Stefanie Levine
9 Notice and Cure/Termination
9.1 In furtherance of Contractor's Work on this Project, the City and the Contractor agree
that the following Notice and Cure provision in this Section 9.1 shall apply during the duration of
Contractor's work on this Project, in addition to the reserved rights of the City enumerated in this
Agreement as follows:
5.1 Liquidated Damages;
8.3 City's right to withhold payment;
16.2 Contractor's duty to revise and correct errors; and
16.3 Contractor's duty to respond to City's notice of errors and omissions.
Fire #1 and #2 Mechanical Improvements Contract Page 13
The City may notify Contractor of its intent to terminate this Agreement within (7) seven calendar
days of issuance by the City of written notice to Contractor's Project Manager regarding defects in
the Project or in Contractor's Work. The City shall specify any such nonconforming Work or defects
in the Project in its notice to Contractor under this Section 9.1. Contractor will have the opportunity
to cure the non -conforming Work within (7) seven calendar days after receipt of the written notice
issued by the City. All such curative work done shall be performed and completed to the City's
satisfaction. Nothing in this Section 9.1 shall otherwise affect the City's right to exercise its rights in
Section 9.2.
9.2 The City shall have the right to terminate this Agreement upon fifteen (15) days
written notice for any reason. Mailing of such notice shall be equivalent to personal notice and shall
be deemed to have been given at the time of receipt.
Payments made by the City pursuant to this Agreement are subject to sufficient
appropriations made by the City of Evanston City Council. In the event of termination resulting
from non -appropriation or insufficient appropriation by the City Council, the City's obligations
hereunder shall cease and there shall be no penalty or further payment required.
9.3 Within thirty (30) days of termination of this Agreement, the Contractor shall turn
over to the City any documents, drafts, and materials, including but not limited to, outstanding work
product, data, studies, test results, source documents, AutoCad Version 2007, ArtView, PDF, Word,
Excel spreadsheets, technical specifications and calculations, and any other such items specifically
identified by the City related to the Work herein. Upon receipt of said items, the Contractor shall be
paid for labor and expenses incurred to the date of termination as provided in Section 8.2. This
Agreement is subject to termination by either party if either party is restrained by a state or federal
court of competent jurisdiction from performing the provisions of this Agreement. Upon such
termination, the liabilities of the parties to this Agreement shall cease, but they shall not be relieved
of the duty to perform their obligations through the date of termination. No lien shall be filed by the
Contractor in the event of a termination of this Agreement by the City.
9.4 If, because of death or any other occurrence, including, but not limited to, Contractor
becoming insolvent, it becomes impossible for any principal or principals of the Contractor to render
the services set forth in this Agreement, neither the Contractor, nor its surviving principals shall be
relieved of their obligations to complete the professional services. However, in the event of such an
occurrence, the City at its own option may terminate this Agreement if it is not furnished evidence
that competent professional services can still be furnished as scheduled.
9.5 In the event of an emergency or threat to the life, safety or welfare of the citizens of
the City, the City shall have the right to terminate this Agreement without prior written notice.
10 Insurance
10.1 The Contractor shall, at its own expense, secure and maintain in effect throughout the
duration of this contract, insurance against claims for injuries to persons or damages to property
which may arise from or in connection with the performance of the Work hereunder by the
Contractor, its agents, representatives, employees or subcontractors. Contractor acknowledges and
Fire #1 and #2 Mechanical Improvements Contract Page 14
agrees that if it fails to comply with all requirements of this Section 10, the City may void the
Agreement.
The Contractor must give to the City Certificates of Insurance identifying the City to be an
Additional Insured for all Work done pursuant to this Agreement before City staff recommends
award of the contract to City Council. Any limitations or modifications on the Certificate(s) of
Insurance issued to the City in compliance with this Section that conflict with the provisions of this
Section 10 shall have no force and effect.
After award of the Contract to Contractor, the Contractor shall give the City a certified
copy(ies) of the insurance policy(ies) evidencing the amounts set forth in Section 10.2, and copies of
the Additional Insured endorsement to such policy(ies) which name the City as an Additional
Insured for all Work done pursuant to this Agreement before Contractor does any Work pursuant to
this Agreement. Contractor's certificate of insurance shall contain a provision that the coverage
afforded under the policy(s) will not be canceled or reduced without thirty (30) 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.
10.2 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
Fire #1 and #2 Mechanical Improvements Contract Page 15
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.
I 1 Indemnification
11.1 The Contractor shall defend, indemnify and hold harmless the City and its officers,
elected and appointed officials, agents, and employees from any and all liability, losses, or damages
as a result of claims, demands, suits, actions, or proceedings of any kind or nature, including but not
limited to costs, and fees, including attorney's fees, judgments or settlements, resulting from or
arising out of any negligent or willful act or omission on the part of the Contractor or Contractor's
subcontractors, employees, agents or subcontractors during the performance of this Agreement. Such
indemnification shall not be limited by reason of the enumeration of any insurance coverage herein
provided. This provision shall survive completion, expiration, or termination of this Agreement.
11.2 Nothing contained herein shall be construed as prohibiting the City, or its officers,
agents, or employees, from defending through the selection and use of their own agents, attorneys,
and experts, any claims, actions or suits brought against them. The Contractor shall be liable for the
costs, fees, and expenses incurred in the defense of any such claims, actions, or suits. Nothing herein
shall be construed as a limitation or waiver of defenses available to the City and employees and
agents, including but not limited to the Illinois Local Governmental and Governmental Employees
Tort Immunity Act, 745 ILCS 10/1-101 et seq.
At the City Corporation Counsel's option, Contractor must defend all suits brought upon all
such Losses and must pay all costs and expenses incidental to them, but the City has the right, at its
option, to participate, at its own cost, in the defense of any suit, without relieving Contractor of any
of its obligations under this Agreement. Any settlement of any claim or suit related to this Project by
Contractor must be made only with the prior written consent of the City Corporation Counsel, if the
settlement requires any action on the part of the City.
To the extent permissible by law, Contractor waives any limits to the amount of its
obligations to indemnify, defend, or contribute to any sums due under any Losses, including any
claim by any employee of Contractor that may be subject to the Illinois Workers Compensation Act,
820 ILCS 305/1 et seq. or any other related law or judicial decision, including but not limited to,
Kotecki v. Cyclops Welding Corporation, 146I11.2d 155 (1991). The City, however, does not waive
any limitations it may have on its liability under the Illinois Workers Compensation Act, the Illinois
Pension Code or any other statute.
11.3 The Contractor shall be responsible for any losses and costs to repair or remedy work
Fire #1 and #2 Mechanical Improvements Contract Page 16
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.
11.4 All provisions of this Section 11 shall survive completion, expiration, or termination
of this Agreement.
12 Drawings and Documents
12.1 Any drawings, survey data, reports, studies, specifications, estimates, maps, plans,
computations, and other documents required to be prepared by the Contractor for the Project shall be
considered Works for Hire and the sole property of the City.
12.2 The Contractor and its subcontractor shall maintain for a minimum of three (3) years
after the completion of this Agreement, or for three (3) years after the termination of this Agreement,
whichever comes later, adequate books, records and supporting documents to verify the amounts,
recipients and uses of all disbursements of funds passing in conjunction with the Agreement. The
Agreement and all books, records and supporting documents related to the Agreement shall be
available for review and audit by the City and the federal funding entity, if applicable, and the
Contractor agrees to cooperate fully with any audit conducted by the City and to provide full access
to all materials. Failure to maintain the books, records and supporting documents required by this
Subsection shall establish a presumption in favor of the City for recovery of any funds paid by the
City under the Agreement for which adequate books, records, and supporting documentation are not
available to support their purported disbursement.
13 Successors and Assigns
13.1 The City and the Contractor each bind themselves and their partners, successors,
executors, administrators, and assigns to the other party of the Agreement and to the partners,
successors, executors, administrators, and assigns of such other party in respect to all covenants of
this Agreement. Neither the City nor the Contractor shall assign, sublet, or transfer its interest in this
Agreement without the written consent of the other. Nothing herein shall be construed as creating
any personal liability on the part of any officer or agent of any public body, which may be a party
hereto, nor shall it be construed as giving any right or benefits hereunder to anyone other than the
City and the Contractor.
14 Force Majeure
14.1 Whenever a period of time is provided for in this Agreement for the Contractor or the
City to do or perform any act or obligation, neither party shall be liable for any delays or inability to
perform if such delay is due to a cause beyond its control and without its fault or negligence
including, without limitation:
a) Acts of nature;
b) Acts or failure to act on the part of any governmental authority other than the City or
Contractor, including, but not limited to, enactment of laws, rules, regulations, codes
or ordinances subsequent to the date of this Agreement;
Fire #1 and #2 Mechanical Improvements Contract Page 17
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 offorce majeure shall give the other parry written notice of
such event within three (3) business days of its occurrence or it shall be deemed to be waived.
15 Amendments and Modifications
15.1 Except as otherwise provided herein, the nature and scope of Work specified in this
Agreement may only be modified by a written Change Order, or a written amendment to this
Agreement, approved by both parties. This Agreement may be modified or amended from time to
time provided, however, that no such amendment or modifications shall be effective unless reduced
to writing and duly authorized and signed by the authorized representatives of the parties.
16 Standard of Care & Warranty
16.1 The Contractor shall perform all of the provisions of this Agreement to the
satisfaction of the City. The City shall base its determination of the Contractor's fulfillment of the
scope of the work in accordance with generally accepted professional standards. The Contractor
shall perform all of the provisions of this Agreement with that degree of care and skill ordinarily
exercised by members of the same profession currently practicing under similar conditions.
16.2 The Contractor shall be responsible for the accuracy of its professional services under
this Agreement and shall promptly make revisions or corrections resulting from its errors, omissions,
or negligent acts without additional compensation. The City's acceptance of any of the Contractor's
professional services shall not relieve the Contractor of its responsibility to subsequently correct any
such errors or omissions. If a Contractor has provided the City with specifications for this Project
which are detennined 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.
Fire #1 and #2 Mechanical Improvements Contract Page 18
16.3 During the pendency of its Work on this Project, the Contractor shall respond to the
City's notice of any errors or omissions within twenty-four (24) hours. The Contractor shall be
required to promptly visit the Project site(s) if directed to by the City.
16.4 The Contractor shall comply with all federal, state, and local statutes, regulations.
rules, ordinances, judicial decisions, and administrative rulings applicable to its performance under
this Agreement.
16.5 Contractor guarantees and warrants to the City that:
a) All materials and equipment furnished under this Agreement shall be of good quality
and new, unless otherwise required or permitted by the Contract Documents;
b) The Work of this Agreement shall be free from defects which are not inherent in the
quality required; and
c) The Work shall comply with the requirements set forth in the Contract Documents.
This warranty and guarantee shall be for a period of one (1) year from the date of completion
and Final Acceptance of the Work by the City, or as otherwise provided in the Contract Documents.
If, within the one year warranty period, after the Contractor has received a final payment
under this Agreement, any of the Work is found to be not be in accordance with the requirements of
this Agreement, or where defects in materials or workmanship may appear, or be in need of repair,
the Contractor shall correct non -conforming and/or defective work or materials promptly after
receipt of written notice from the City. Contractor shall immediately at its own expense repair,
replace, restore, or rebuild any such Work. This remedy is in addition to any other legal or equitable
remedies the City may have under this Agreement or the law.
This guarantee and warranty shall not relieve Contractor of liability for latent defects, and
shall be in addition to the City's rights under the law or other guarantees or warranties, express or
implied.
16.7 The provisions of this Section 16 shall survive the completion, expiration or
termination of this Agreement.
17 Savings Clause
17.1 If any provision of this Agreement, or the application of such provision, shall be
rendered or declared invalid by a court of competent jurisdiction, or by reason of its requiring any
steps, actions, or results, the remaining parts or portions of this Agreement shall remain in full force
and effect.
18 Non -Waiver of Rights
18.1 No failure or delay by the City to exercise any power given to it hereunder or to insist
upon strict compliance by Contractor with its obligations hereunder, nor any payment made by the
City under this Agreement, shall constitute a waiver of the City's right to demand strict compliance
Fire #1 and #2 Mechanical Improvements Contract Page 19
with the terms hereof, unless such waiver is in writing and signed by the City.
19 Entire Agreement
19.1 This Agreement sets forth all the covenants, conditions and promises between the
parties with regard to the subject matter set forth herein. There are no covenants, promises,
agreements, conditions or understandings between the parties, either oral or written, other than those
contained in this Agreement. This Agreement has been negotiated and entered into by each party
with the opportunity to consult with its counsel regarding the terms therein. No portion of the
Agreement shall be construed against a party due to the fact that one party drafted that particular
portion as the rule of contra proferentem shall not apply.
20 Governing Law
20.1 This Agreement shall be construed in accordance with and subject to the laws and
rules of the City of Evanston and the State of Illinois both as to interpretation and performance.
Venue for any action arising out of or due to this Agreement shall be in Cook County, Illinois. The
City shall not enter into binding arbitration to resolve any dispute related to this Agreement. The
City does not waive tort immunity by entering into this Agreement.
21 Ownership of Contract Documents
21.1 Contractor is specifically prohibited from using in any form or medium, the name or
logo of the City for public advertisement, unless expressly granted written permission by the City.
Submission or distribution of documents to meet official regulatory requirements or for similar
purposes in connection with this Project is not to be construed as publication in derogation of the
City's reserved rights.
22 Notice
22.1 Any notice required to be given by this Agreement shall be deemed sufficient if made
in writing and sent by certified mail, return receipt requested, or by personal service, to the persons
and addresses indicated below or to such other addresses as either parry hereto shall notify the other
party of in writing pursuant to the provisions of this Subsection:
City of Evanston Project Manager, Bid 12-115
2100 Ridge Avenue
Evanston, Illinois 60201
if to the Contractor:
Therm Flo. Inc.
251 Holbrook Drive
Wheeling, Illinois 60090
22.2 Mailing of such notice as and when provided above shall be equivalent to personal
Fire #1 and #2 Mechanical Improvements Contract Page 20
notice and shall be deemed to have been given at the time of mailing.
23 Severability
23.1 Except as otherwise provided herein, the invalidity or unenforceability of any
particular provision, or part thereof, of this Agreement shall not affect the other provisions, and this
Agreement shall continue in all respects as if such invalid or unenforceable provision had not been
contained herein.
24 Execution of Agreement
24.1 This Agreement shall be signed last by the City Manager. The City Manager shall
affix the date on which he/she signs this Agreement on Page 1 hereof, which date shall be the
effective date of this Agreement.
25 Counterparts
25.1 For convenience, this Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original.
26 Authorizations
26.1 The Contractor's authorized representatives who have executed this Agreement
warrant that they have been lawfully authorized by the Contractor's board of directors or its bylaws
to execute this Agreement on its behalf. The City Manager affirms that he/she has been lawfully
authorized to execute this Agreement. The Contractor and the City shall deliver upon request to each
other copies of all articles of incorporation, bylaws, resolutions, ordinances, or other documents
which evidence their legal authority to execute this Agreement on behalf of their respective parties.
27 Time of Essence
27.1 Time is of the essence with respect to each provision hereof in which time is a factor.
Fire #1 and #2 Mechanical Improvements Contract Page 21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by
their duly authorized representatives on the day and date first written on the first page above.
CITY OF EVANSTON
By: (p /e
Wally Bobkiewicz
Its: City Manager
Approved as to form:
APProved as to form:
By: 1141 �-,,mrooiat
G�r�otatlon Counsel
W. Grant Fa rar,
Its: Corporation Counsel
Revision October 2011
CONTRACTOR
By:
% Niue �%r.� /•� G
Name:
Its:
Fire #1 and #2 Mechanical Improvements Contract Page 22