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HomeMy WebLinkAboutParking Garage Repair ProjectAttachment B — Professional Consulting Services Agreement City of Evanston PROFESSIONAL CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF EVANSTON (OWNER) AND WISS, JANNEY, ELSTNER ASSOCIATES, INC. (PROFESSIONAL CONSULTANT) This is a Professional Consulting Services Agreement between the City of Evanston hereinafter called "Owner" and Wiss, Janney, Blstner Associates, Inc. hereinafter called "Professional Consultant" to provide consultant services to the Owner. The Owner proposes parking garage repair projects at 1.) Church Street Self -Park, 2.) Maple Avenue Self -Park and 3.) Sherman Plaza Self -Park as follows: The Professional Consultant services will be performed for the Owner who is located at 2100 Ridge Avenue, Evanston, Illinois. The Professional Consultant's services will be completed within ten (10) months from the date of Notice to Proceed from the Owner. Compensation for all Basic Services provided by the Professional Consultant under terms of the Agreement shall be a not to exceed fixed fee of $199,350.00. Compensation for all Reimbursable Services provided by the Professional Consultant under terns of the Agreement shall be a not -to -exceed fee of $3,000.00. Compensation in excess of the total Agreement amount of $202,350.00 shall not be allowed unless approved by a written Agreement amendment. Compensation for costs incurred as a result of improper performance by the Professional Consultant will not be allowed. Details of the Agreement compensation provisions follow in the text of the Agreement and Standard Provisions incorporated by reference. The Professional Consultant represents that it is in compliance with the laws and regulations relating to the professions of architecture and engineering and signifies its willingness to provide the desired architectural and engineering services. The Professional Consultant's representative is Flora Calabrese, whose work address and telephone number is 330 Pfingsten Road, Northbrook, IL 60062, 847-272-7400. The Owner's representative is Douglas J. Gaynor, whose work address and telephone number is 2100 Ridge Avenue, Evanston, Illinois 60201, 847-448-8040. This Agreement incorporates and the parties agree to all of the Standard Provisions of the Professional Consulting Services Agreement attached hereto and made a part hereof. The Professional Consultant acknowledges receipt of a copy of these Standard Provisions. The parties also agree to all of the provisions, which are annexed and made part of this Agreement, consisting of Attachment A and B. Nothing in this Agreement accords any third party beneficiary rights whatsoever on any non-party that may be enforced by any non-party to this Agreement. For the Professional Consultant For the City of Evanston w, s �-Trt,.ir✓�, e^bsr�r/n/iaco ji.✓c. J/(��/�,, /j/���� A By: l�/La r �t✓L�C — By: V 1 �'._- JI�� Title: �s a o i—�e Pr"i- e I' Title: Wally Bobkiewicz, City Manager Date: 1 3 1 — Zm l 1 Date:,,-tpproved as to a W. Grant Farrar Corporation Counsel Attachment B — Professional Consulting Services Agreement PROFESSIONAL CONSULTING SERVICES AGREEMENT STANDARD PROVISIONS TABLE OF CONTENTS Article I Definitions Article 2 Professional Consultant's Responsibilities 2.1 General 2.2 Schedule 2.3 Errors and Omissions 2.4 Subletting or Assignment of Agreement Article 3 Owner's Responsibilities 3.1 General 3.2 Owner's Representative Article 4 Basic Scope of Services 4.1 General 4.2 Not Used 4.3 Not Used 4.4 Construction Document Phase 4.5 Bidding and Negotiations Phase 4.6 Construction Administration Phase Article 5 Miscellaneous Provisions 5.1 General 5.2 Additional Services 5.3 Legal Relations 5.4 Indemnity 5.5 Insurance Requirements 5.6 Ownership of Contract Documents 5.7 Termination, Suspension or Abandonment Article 6 Project Budget 6.1 General 6.2 Estimating and Bidding Procedures Article 7 Compensation 7A Basic Services 7.2 Reimbursable Expenses 7.3 Invoicing and Payment Attachment A City of Evanston Request for Proposal #11-44 Attachment B Professional Consultant's Proposal Dated January 4, 2011 Amended January 27, 2011. Attachment B — Professional Consulting Services Agreement Article 1 Definitions 1.1 "Construction Documents" means all plans, specifications and cost estimates required to bid and construct the Project. 1.2 "Contract Documents" means all drawings, reports and related documents produced as part of this Project. 1.3 "Deliverable" means drawings, reports and other documents produced and delivered to the Owner as part of a formal Project Submittal as outlined in Article 4. 1.4 "Owner" means the City of Evanston. 1.5 "Phase" means a specific project stage performed by the Professional Consultant as outlined in Article 4. 1.6 "Professional Consultant" means Wiss, Janney, Elstner Associates, Inc.. 1.7 "Project" means the specific improvement proposed by the Owner in this Agreement. 1.8 "Scope" means the complete design, detailing and specifying for construction of all improvement items as outlined in the Project's Request for Proposal. 1.9 "Services" means the architectural, structural engineering, mechanical engineering, plumbing engineering, electrical engineering, fire protection engineering and related labor, equipment and materials famished by the Professional Consultant in accordance with this Agreement. 1.10 "Sub -consultant" means any consultant employed directly by the Professional Consultant to perform specific Professional Services for this Project. 1.11 "Subcontractor" means any consultant employed directly by the Professional Consultant to perform specific Professional Services for this Project. 1,12 "Submittal" means a specifically identified submission of plans, specifications, cost estimates, reports or other documents to the Owner or other governing jurisdiction for review and/or approval as outlined in Article 4. Article 2 Professional Consultant's Responsibilities 2.1 General 2.1.1 The Professional Consultant's services consist of those services performed by the Professional Consultant, Professional Consultant's employees and Professional Consultant's sub -consultants as enumerated in Article 4 of this Agreement. 2.1.2 The Professional Consultant shall not conduct any work outside the Basic Scope of Services and shall not receive any additional compensation therefore without the prior written approval from the Owner in the form of an amendment to this Agreement. 2.1.3 The Professional Consultant shall provide services in accordance with the Building Code of the City of Evanston and all other applicable codes and regulations set forth by any governing bodies having jurisdiction over the Project. 2.1.4 The Professional Consultant shall determine all permits and documents necessary to construct the Project and shall prepare and submit all required documents and permit applications on the forms and in the manner prescribed by the issuing agency and shall address all agency comments and required revisions prior to Project bidding. 2.1.5 The Professional Consultant shall famish structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials and other laboratory and environmental tests, inspections and reports required for the performance of the services. The Owner shall reimburse the Professional Consultant for all required testing services at cost and shall pay for any coordination efforts required by the Professional Consultant on an hourly basis. The Professional Consultant shall provide City with such costs of the required testing services and coordination efforts prior to said performance. 2.2 Schedule 2.2.1 Time is of the essence in completing the services and the Professional Consultant shall proceed continuously and expeditiously through completion of each Phase. The Professional Consultant and the Owner shall develop and approve a schedule for the performance of the Professional Consultant's services. This schedule shall include a minimum of one (1) week following each Phase and/or Submittal as outlined in Article 4 for Owner and/or governing jurisdiction review and/or approval. 2.2.2 The schedule shall not be extended because of any delay attributable to the Professional Consultant. The schedule may be extended by the Owner at its sole discretion in the event of a delay attributable to the Owner, or because of unavoidable delays caused by an act of God, war, governmental actions, or other conditions beyond the control of the Professional Consultant. 2.2.3 The Professional Consultant shall be held liable for any and all damages to the Owner resulting from Project delays caused by the Professional Consultant and within the Professional Attachment B — Professional Consulting Services Agreement Consultant's control. 2.2.4 Failure to adhere to the schedule will result in Owner issuing a written notice to the Professional Consultant. After two (2) written notices have been sent to the Professional Consultant for failure to adhere to the project schedule, beginning with the third notice, notices for failure to adhere to the project schedule will result in the Professional Consultant being assessed liquidated damages in the amount of a 1 % reduction in the Professional Consultant's fee for each occurrence. This payment is for liquidated damages for those expenses which the City incurred as a result of the delay, and not a penalty. All such liquidated damages may be set off against any money that may be due to the Professional Consultant. 2.3 Errors and Omissions 2.3.1 The Professional Consultant is responsible for and shall pay all costs due to its negligent errors, omissions or misconduct, including but not limited to: errors in Contract Documents, lack of document coordination, missing or ambiguous information and failure to identify observable field conditions. 2.3.2 The Professional Consultant shall be responsible for the accuracy of the Work performed under this Agreement and shall promptly make necessary revisions or corrections to its Work resulting from its negligent acts, errors or omissions without additional compensation including redesign if all bids are over budget. The Professional Consultant shall give immediate attention to these revisions or corrections to prevent or minimize delay to the Project. 2.3.3 The Professional Consultant shall make revisions to the Contract Documents which have been completed, approved and accepted by the Owner as are necessary to correct errors or omissions in the Contract Documents, when required to do so by the Owner, without additional compensation from the Owner. The Professional Consultant shall give immediate attention to these revisions or corrections to prevent or minimize delay to the Project. 2.4 Subletting or Assignment of Agreement 2AJ The name and description of all consultants used by the Professional Consultant to perform specific services directly related to this Project shall be submitted to the Owner for approval in writing before their use on this project. The Professional Consultant shall be responsible for paying these consultants for the consultant's total services. The list of subconsultants for performance of this project is listed in Attaclunent B. 2.4.2 If the Professional Consultant's assistants, employees, or subcontractors prove unsatisfactory to the Owner, such persons shall be immediately removed from the Project and promptly replaced by the Professional Consultant upon request from the Owner, and the Professional Consultant shall not object to the Owner's request. 2.4.3 Consent to assign, sublet or otherwise transfer responsibility for any portion of the Work shall not be construed to relieve the Professional Consultant of any responsibility for the fulfillment of this Agreement. No subletting, subcontracting or assignment of any portion of the Work under this Agreement shall state, imply, intend or be construed to limit the legal liability of either the Professional Consultant or the sub -consultant. 2.4.4 The guidelines, terms, conditions and requirements of this contract shall apply to all persons used by the Professional Consultant to assist in the design and development of the Project. Article 3 Owner's Responsibility 3.1 General 3.1.1 The Owner shall provide information regarding general requirements for the Project, the Project schedule and the Project budget. 3.2 Owner's Representative 3.2.1 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner's authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Professional Consultant in order to avoid unreasonable delay in the orderly and sequential progress of the Professional Consultant's services. All material communications between the parties hereto shall be confinned by the Owner in writing. Article 4 Basic Scope of Services 4.1 General 4.1.1 The Professional Consultant's Basic Scope of Services consist of those described in Paragraphs 4.2 through 4.6 and include normal architectural, structural engineering, mechanical engineering, plumbing engineering, electrical engineering and fire protection engineering services. Attachment B — Professional Consulting Services Agreement 4.1.2 All drawings produced for this Project are to be prepared using Autocad Version 2007 software and vector line graphics; no manual drafting or raster image drawings will be accepted. All drawings shall be produced in architectural (foot and inch) units. 4.1.3 The Professional Consultant shall prepare and provide to Owner within five (5) business days after each meeting, detailed minutes, recording attendance and a summary of all items discussed. 4.2 Not Used 4.3 Not Used 4A Construction Document Phase 4.4.1 Based upon the Scope of Work and any additional repair recommendations made by the Professional Consultant, the Professional Consultant shall work with the Owner to identify and select proper repair solutions, prioritize scope items and determine which scope items should be considered alternates to fit within the Project Budget in order to develop Construction Documents. Construction Documents shall consist of drawings, technical, contracting and bidding specifications and cost estimates. The Professional Consultant shall meet with the Owner to review the Construction Documents at various stages of document development to discuss and refine the Project. The Professional Consultant shall provide written disposition to all Owner review comments. 4.4.2 At or before the 90% Submittal. the Professional Consultant shall submit the Construction Documents to the City of Evanston's Community Development Department for the purpose of obtaining a building permit. The Professional Consultant shall make all corrections required by the Building Official prior to the solicitation of bids. 4.4.3 The Professional Consultant shall advise the Owner of any cost estimate adjustments indicated by changes in Project requirements or general market conditions. The Owner shall be given a reasonable opportunity to respond to any budget issues and allowed to reduce or increase the scope of work, using alternate bid items or otherwise, to bring the projected costs within the Project Budget at no additional cost. 4.4.4 Deliverable items for this Phase shall include the following: 1. Written list of prioritized Scope of Work items including Alternates along with proposed solutions for each item. 2. 50% Construction Document Submittal: 8 bound sets of Construction Documents (I Ix17 or 2204), outline Technical Specifications and Itemized Cost Estimate 3. 90% Construction Document Submittal: 8 bound sets of Construction Documents (1 Ix17 or 2204), 8 spiral bound sets of Technical, Contracting and Bidding Specifications, Itemized Cost Estimate, 50% Owner mark-ups and written disposition of Owner 50% comments 4. 100% Construction Document Submittal: 8 bound sets of Construction Documents (l 1x17 or 2204), 8 spiral bound sets of Technical, Contracting and Bidding Specifications, Itemized Cost Estimate, 90% Owner mark-ups and written disposition of Owner 90% comments 5. Submission of Contract Documents to Community Development Department (as required). 6. Three (3) review meetings 7. Minutes from all meetings 4.5 Bidding and Negotiations Phase 4.5.1 Following the Owner's review and approval of the 100% Submittal and the completion of the Construction Document Phase, the Professional Consultant shall prepare Construction Documents for Bidding, consisting of drawings, technical and bidding specifications and a final cost estimate. 4.5.2 The Professional Consultant shall assist the Owner in Bid preparation, assist plan holders with any questions and/or problems encountered during the Bid period, prepare addenda to bidding documents as required and attend pre -bid meeting(s) to further assist plan holders with questions or problems associated with the Project. 4.5.3 The Professional Consultant shall obtain copies of all itemized bid forms, review all bids, contact bidder references and submit written recommendations to the Owner for contract award. 4.5.4 Deliverable items for this Phase shall include the following: I. Bid Set Submittal: 40 bound sets of Construction Documents (22x34), 40 spiral bound sets of Technical, Contracting and Bidding Specifications, Final Itemized Cost Estimate, 100% Owner mark-ups and written disposition of Owner 100% comments 2. Addendum preparation and plan holder assistance (as required) 3. Attendance and minutes from pre -bid meeting 4. Bid analysis, written contractor reference review and written recommendation for contract award 4.6 Construction Administration Phase Attachment B — Professional Consulting Services Agreement 4.6.1 Following contract award for Project construction, the Professional Consultant shall provide the following Pre -Construction Services: 1. Prepare and distribute Construction Documents to the General Contractor(s) and Owner. These documents shall include all bidding documents and shall incorporate any subsequent addenda and/or alternate bid item selections occurring during the Bidding and Negotiations Phase, 2. Prepare and submit to the Owner a compact disc containing electronic files of all drawings and specifications created for the Project. 3. Coordinate and attend pre -construction activities and meeting(s) with the General Contractor, major suppliers and subcontractors. 4.6.2 During Project construction, the Professional Consultant shall provide the following Construction Observation Services: 1. The Professional Consultant shall visit the site an average of one (2) times per month (I at the beginning of each month and I at the middle of each month) to become familiar with the progress and quality of the Work completed and to determine if the Work is being performed in accordance with the Contract Documents. On the basis of on -site observations, the Professional Consultant shall keep the Owner informed of the progress and quality of the Work and shall guard the Owner against defects and deficiencies in the Work. The Professional Consultant shall prepare Field Observation Reports for all site visits and shall distribute these reports to the Owner within five (5) business days. 2. The Professional Consultant shall conduct construction meetings (2) times per month (1 at the beginning of each month and 1 at the middle of each month) with the Owner, General Contractor, major suppliers and subcontractors to review construction progress and resolve issues. The Professional Consultant shall prepare meeting minutes for all construction meetings and shall distribute these minutes to the Owner and General Contractor within five (5) business days. 4.6.3 During Project construction, the Professional Consultant shall provide the following Construction Administration Services: 1. The Professional Consultant shall review and approve or take other appropriate action upon Contractor submittals such as Shop Drawings, Product Data and Samples for the purpose of checking for conformance with the Construction Documents within five (5) business days of receipt. 2. The Professional Consultant shall review Contractor Requests for Payment and other related documents, including tracking of trailing lien waivers and certified payroll, prior to approving each Application for Payment. Based on the Professional Consultant's observations and evaluations of the Contractor's Applications for Payment, the Professional Consultant shall certify the amounts due the Contractor. The Professional Consultant's certification for payment shall constitute a representation to the Owner that the Work has progressed to the point indicated and is in accordance with the Construction Documents. Certifications for Payment must be received by the Owner in accordance with the Owner's payment schedule. The Professional Consultant shall ensure that this occurs by coordinating billing efforts with the Owner and Contractor. 3, The Professional Consultant shall prepare Project Bulletins, review Contractor Proposals, and review and respond to Contractor Requests for Information as required throughout the course of construction. The Professional Consultant shall prepare Construction Clarifications and/or Change Orders with supporting documentation, drawings, instructions and data if deemed necessary by the Owner. These documents shall be prepared for the Owner's approval and execution in accordance with the Construction Documents. 4. With the Owner's approval, the Professional Consultant shall have the authority to: reject Work not conforming to the Construction Documents, require additional inspection or testing of the Work in accordance with the provisions of the Construction Documents, whether or not such Work is fabricated, installed or completed, and authorize minor changes in the Work not involving an adjustment in the Contract Sinn or an extension of the Contract Time. 4.6.4 During closeout of Project construction, the Professional Consultant shall provide the following Construction Administration Services: 1. The Professional Consultant shall conduct inspections to determine Substantial and Final Project completion. Upon notification by the Contractor of Project completion, the Professional Consultant shall conduct punch list inspection(s) and prepare and distribute Project punch list(s) to the Contractor and Owner. The Professional Consultant shall receive Attachment B — Professional Consulting Services Agreement and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Construction Documents as assembled by the Contractor and shall issue a final Certificate for Payment upon compliance with the requirements of the Construction Documents. 2. The Professional Consultant shall conduct an evaluation of the Contractor in accordance with the requirements of the Construction Documents. 4.6.5 Deliverable items for this Phase shall include the following: I. FIardeopy Construction Documents (22x34) (as required) 2. Electronic Construction Documents (compact disc format, AutoCAD 2007 and PDF for drawings, Word or Excel for specifications) 3. Pre -construction meeting(s) 4. Construction observation visits (average of 2 per month) and written Field Observation Reports 5. Construction meetings (2 per month) and written Meeting Minutes 6. Review and approval of shop drawings, product data and samples (as required) 7. Record copies of approved shop drawings (electronic PDF format) 8. Application for payment certification (as required) 9. Review, preparation and distribution of Bulletins, Contractor Proposals, Construction Clarifications and Change Orders (as required) 10. Substantial and Final completion review and certificates and Project punch list(s) preparation and distribution 11, Contractor evaluation Article 5 Miscellaneous Provisions 5.1 General 5.1.1 This agreement shall be governed by the laws of the State of Illinois, in the event of litigation the venue shall be in Cook County, Illinois. 5.1.2 This Agreement represents the entire and integrated agreement between the Owner and Professional Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Professional Consultant. 5.1.3 This Agreement has been negotiated and entered into by each party with the advice of independent counsel and should not be construed against one party or the other based on which party drafted any portion of the Contract. 5.1.4 Professional Consultant hereby waives and forfeits all claims that any work, services or other activities were performed pursuant to an oral contract or other oral agreement separate from this contract. 5.1.5 In addition to all of the remedies available, the Owner, in any arbitration or litigation pertaining to this Agreement, shall have the right to collect its reasonable attorney's fees and other costs related to such arbitration or determined by the judge or arbitrator. 5.1.6 It is understood that the obligations assumed in this Agreement shall be binding upon the Owner and upon the Professional Consultant, and upon the successors, executors, administrators and assigns of the parties hereto and that neither the Owner nor the Professional Consultant shall assign, sub -contract or transfer their interest in this Agreement without the written consent of the other party. 5.1.7 Whenever possible, each provision of this Agreement shall be interpreted in a manner as to be effective and valid under applicable law. If, however, any provision of this Agreement, or portion thereof, is prohibited by law or found invalid under any law, only such provision or portion thereof shall be ineffective, without in any manner invalidating or affecting the remaining provisions of this Agreement or valid portions of such provisions, which are hereby deemed severable. 5.1.8 Professional Consultant shall comply with the law and the provisions of the "Prevailing Wage Act," (820 ILCS 130/1, et. seq.) which provided that "a wage of no less than general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed, shall be paid to all laborers, workers and mechanics employed by or on behalf of any and all public bodies engaged in public works." 5.1.9 The Professional Consultant certifies it has not been barred from being awarded a contract with a unit of State or local Government as a result of violation of Section 33E-3 or Section 33E of the Criminal Code of 1961 (bid rigging or bid rotating). Attachment B — Professional Consulting Services Agreement 5.1.10 The Professional Consultant certifies, pursuant to the Illinois Human Rights Act (775 ILCS 5/2- 105 et. seq.), that it has written sexual harassment policy that includes, at a minimum, the following information: (1) the illegality of sexual harassment, (2) the definition of sexual harassment under State law, (3) a description of sexual harassment utilizing examples, (4) The Professional Consultant's internal complaint process including penalties, (5) 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 (6) protection against retaliation as provided to the Department of Human Rights upon request. 5.1.11 The Professional Consultant shall abide by the "Illinois Preference Act" which stipulates that whenever there is a period of excessive unemployment in Illinois, defined as any month immediately following two (2) consecutive months during which the level of unemployment in Illinois exceeds five percent (5%) as measured by the U.S. Bureau of Labor Statistics in its monthly publication of employment and unemployment figures, the Professional Consultant shall employ only Illinois laborers unless otherwise exempted as so stated in the Act ("Illinois laborer" means any person who has resided in Illinois for least 30 days and intends to become or remain an Illinois resident). Other laborers may be used if Illinois laborers are not available or are incapable of performing the particular type of work involved if so certified by the Professional Consultant and approved by the Owner's designated representative. 5.2 Additional Services 5.2.1 If in the Professional Consultant's opinion the Owner requests Work not included in the Basic Scope of Services of this Agreement or reasonably inferable therein, the Professional Consultant must notify the Owner in writing if it is the Professional Consultant's opinion that extra compensation or additional time allowance is warranted. 5.2.2 The Professional Consultants proposal for Additional Services shall include the justification for the claim for extra compensation and the amount of additional fee and/or time requested. All proposals for Additional Services shall be based on the hourly billing rates provided in Attachment B. 5.2.3 The Professional Consultant shall not proceed with any Additional Services outside of the Basic Scope of Services until the Owner has approved a written Agreement amendment authorizing the Professional Consultant to proceed. Such Agreement amendments shall include appropriate time extensions if the Owner determines they are warranted. 5.2.4 Reasons for revising the Professional Consultant's fee may include, but are not limited to the following examples: 1. Making revisions to Drawings, specifications or other documents when such revisions are required by the enactment or revision of codes, laws or regulations subsequent to the contract award of such documents. 2. Owner changes to the Project, which result in a significant change in the scope, character or complexity of the Work. 3. A significant Change Order resulting from unknown existing conditions which the Professional Consultant could not reasonably have foreseen and which requires extensive preparation of drawings, specifications and other documents. 5.2.5 Alternate items within the original Scope of Work shall not be considered additional services. 5.3 Legal Relations 5.3.1 The Professional Consultant shall become familiar with and shall at all times comply with and observe all federal, state and local laws, ordinances and regulations which in any manner affect the Project or the Professional Consultant's conduct. 5.3.2 In carrying out the provisions of this Agreement, or in exercising any power or authority granted to the Owner thereby, there shall be no personal liability upon the authorized representatives of the Owner, it being understood that in such matters they act as agents and representatives of the City of Evanston. 5.3.3 The Professional Consultant or its officers, agents, and employees or any subconsultant's officers, agents, or employees shall be responsible for any and all damages to property or persons arising out of a negligent act, error and/or omission in the Professional Consultant's performance of this Agreement. 5.3.4 The Professional Consultant shall indemnify and hold harmless the Owner and all their officers, agents and employees on account of any damages to persons or property resulting from negligence of the Professional Consultant or its officers, agents, and employees or any subconsultant's officers, agents, or employees arising out of, or in connection with the performance and completion of this Agreement. Attachment B — Professional Consulting Services Agreement 5.3.5 Professional Consultant shall be and act as an independent contractor and not as a partner, joint venturer or agent of the Owner and shall not bind nor attempt to bind Owner to any contract. Professional Consultant 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; and Professional Consultant agrees to defend, indemnify and hold the Owner harmless from any and all claims, damages, liability, attorney's fees and expenses on account of (i) an alleged failure by Professional Consultant to satisfy any such obligations or any other obligation (under this Agreement or otherwise) or (ii) any other action or inaction of Professional Consultant. 5.4 Indemnity 5.4.1 Professional Consultant must defend, indemnify, keep and hold harmless the City of Evanston, its officers, representatives, elected and appointed officials, agents and employees from and against any and all Losses, including those related to: 1. injury, death or damage of or to any person or property; 2. any infringement or violation of any property right (including patent, trademark or copyright); 3. failure to pay or perform or cause to be paid or performed Professional Consultants covenants and obligations as and when required under this Contract or otherwise to pay or perform its obligations to any subcontractor; 4. the City's exercise of its rights and remedies under this Contract; and 5, injuries to or death of any employee of Professional Consultant or any sub -consultant under any workers compensation statute. 5.4.2 "Losses" means, individually and collectively, liabilities of every kind, including losses, damages and reasonable costs, payments and expenses (such as, but not limited to, court costs and reasonable attorneys' fees and disbursements), claims, demands, actions, suits, proceedings, judgments or settlements, any or all of which in any way arise out of or relate to the acts or omissions of Professional Consultant, its employees, agents and sub -consultants, except those which arise or which alleged to have arisen from the negligence of the City, its officers, employees, agents or subcontractors. 5.4.3 At the City Attorney's option, Professional Consultant must defend all suits brought upon all such Losses and must pay all costs and expenses incidental to them, but the City has the right, at its option, to participate, at its own cost, in the defense of any suit, without relieving Professional Consultant of any of its obligations under this Contract. Any settlement must be made only with the prior written consent of the City Attorney, if the settlement requires any action on the part of the City. 5.4A To the extent permissible by law, Professional Consultant waives any limits to the amount of its obligations to indemnify, defend or contribute to any sums due under any Losses, including any claim by any employee of Professional Consultant that may be subject to the Workers Compensation Act, 820 ILCS 305/1 et seq. or any other related law or judicial decision (such as, Kotecki v. Cyclops Welding Corporation, 146 III. 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. 5A.5 The indemnities in this section survive expiration or termination of this Contract for matters occurring or arising during the term of this Contract or as the result of or during the Professional Consultants performance of Services beyond the term. Professional Consultant acknowledges that the requirements set forth in this section to indemnify, keep and save harmless and defend the City are apart from and not limited by the Professional Consultant's duties under this Contract, including the insurance requirements set forth in the Contract. 5.5 Insurance Requirements 5.5.1 Professional Consultant shall carry and maintain at its own cost, with such companies as are acceptable to Owner, 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 Professional Consultant, and insuring Professional Consultant against claims which may arise out of or result from Professional 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 Attachment I3 — Professional Consulting Services Agreement O 5.7 2. Comprehensive general liability coverage, and designating Owner 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 4. Errors and omissions or professional liability insurance respecting any insurable professional services hereunder in the amount of at least $1,000,000. 5.5.2 Professional Consultant shall provide Owner with certificates of insurance and, if requested by Owner, certified copies of the policies of insurance evidencing the coverage and amounts set forth in this Section. Professional 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 Owner. Ownership of Contract Documents 5.6.1 Upon completion or termination of this Agreement, all Drawings, Specifications and other Contract Documents, including a compact disc of all digital Contract Documents such as computer -aided design plans/details, word processing specifications and cost estimates shall be delivered to and become the property of the Owner. All word processing documents and spreadsheets shall be in Microsoft Word or Excel. All computer -aided design files shall be in Autocad Version 2007. Final payment is contingent upon the delivery of these items. These Contract Documents may be used without restriction by the Owner for any public purpose. Any such use shall be without compensation or liability to the Professional Consultant and will not violate any intellectual property rights or interests of the Professional Consultant. The Professional Consultant shall be permitted to retain copies, including reproducible copies of the Contract Documents for information and reference in connection with the Project. 5.6.2 Professional Consultant is specifically denied the right of using in any form or medium, the name of the Owner for public advertisement, unless expressly granted by written permission of the Owner. 5.6.3 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Owner's reserved rights. Termination, Suspension or Abandonment 5.7.1 This Agreement may be terminated by the Owner upon not less than seven (7) days' written notice. In the event of a termination of services by the Owner, the Owner shall have no liability of any kind whatsoever to the Professional Consultant after the termination date including any claim for lost profits or opportunities. 5.7.2 In the event of termination of the Project, the Professional Consultant shall be compensated for services performed prior to termination on a prorated basis. The Professional Consultant shall submit work completed and receive written approval from the Owner for the portion of Work completed prior to receiving payment. The value of the services rendered and delivered will be determined by the Owner. 5.7.3 If the Owner suspends the Project more than thirty (30) consecutive days, the Professional Consultant may be compensated for services performed prior to notice of suspension on a prorated basis. The Owner shall have no further liability whatsoever to Professional Consultant after suspension of Professional Consultant's services including, but not limited to, any and all claims for lost profits or opportunities. The Professional Consultant must submit work completed and receive written approval from the Owner for the portion of Work completed prior to receiving payment. The value of the services rendered and delivered will be determined by the Owner. 5.7.4 If the Owner fails to make payments in accordance with Article 7, the Professional Consultant may, upon thirty (30) days' written notice to the Owner, suspend performance of services under this Agreement. In the event of a suspension of services, the Professional Consultant shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Professional Consultant shall not suspend services in the event of a good faith dispute between Professional Consultant and the Owner. 5.7.5 If the Owner commits a material breach of this Agreement or if the Project is suspended for a period of six months or more, the Professional Consultant may terminate this Agreement by written notice to the Owner only after the Owner has been given a notice of a material breach by the Professional Consultant and does not cure the failure within a period of ten (10) business days. Article 6 Attachment B — Professional Consulting Services Agreement Project Budget 6.1 General 6.1.1 The Project Budget for this contract shall be $1,700,000.00. 6.1.2 The Project Budget includes the total estimated cost of all constructed elements of the Project designed or specified. 6.1.3 The Project Budget does not include compensation to the Professional Consultant, the costs of the land, rights -of -way, construction contingency or Project financing. 6.1.4 The Owner reserves the right to include alternate bid items identified within the Basic Scope of Services to adjust the estimated construction costs at no additional cost to the Owner. 6.2 Estimating and Bidding Procedures 6.2.1 If the Bidding Phase has not commenced within 90 days after the Professional Consultant submits the Bidding Documents to the Owner, any cost estimates shall be adjusted to reflect changes in the general level of prices in the construction industry. 6.2.2 If the Project Budget is exceeded by the lowest bona fide bid the Owner shall do one of the following: 1. Give written approval of an increase in the Project Budget. 2. Authorize re -bidding of the Project within a reasonable time. 3. Abandon the Project in accordance with Section 5.7. 4. Revise the Project Scope and quality as required to reduce the construction cost. 6.2.3 If the Professional Consultant's estimated Construction costs are within the Project Budget, the lowest responsive and responsible bid exceeds the Project Budget and the Owner chooses to re -bid the project as outlined under Clause 6.2.2.2 above the Professional Consultant shall modify the Contract Documents as necessary to comply with the Project's re -bidding requirements for no additional compensation, within the timeftame given by the Owner in writing after the bids are received. If the Professional Consultant's estimated Construction costs are within the Project Budget, the lowest responsive and responsible bid exceeds the Project Budget and the Owner chooses to proceed with Scope revisions as outlined under Clause 6.2.2.4 above the Professional Consultant shall modify the Contract Documents as necessary to comply with the Project Budget for no additional compensation, within the timeframe given by the Owner in writing after the bids are received. Article 7 Compensation 7.1 Basic Services 7.1.1 Payments for Basic Services shall be made on the not to exceed fixed fee of $199,350 as outlined in the project fee schedule provided in Attachment B and will be billed against a per phase and per consultant and/or subconsultant basis. Such payment shall be full compensation for Professional Consultant services rendered with the exception of items as noted in Paragraph 7.2. 7.1.2 Attachment B represents the Professional Consultant's best estimate for the fees required to complete the Project. The Professional Consultant will not receive additional compensation to complete the Basic Services for this project as outlined in Article 4 unless Additional Services not included in the Project's Basic Services are required and authorized by the Owner in writing in advance. 7.1.3 Professional Consultant payments shall be made on a monthly (progress payment) schedule. 7.1.4 The Owner has the equitable right to set off against any stun due and payable to the Professional Consultant under this Agreement, any amount the Owner determines the Professional Consultant owes the Owner, whether arising under this Agreement or under any other Agreement or otherwise. 7.1.5 Compensation in excess of the total Agreement amount will not be allowed unless justified in the Owner's sole judgement and authorized in advance by an approved written Agreement amendment. T L6 Compensation for improper performance by the Professional Consultant will not be allowed. 7.2 Reimbursable Expenses 7.2.1 Reimbursable expenses, that are in addition to compensation for Basic services, shall be made on the not -to -exceed fixed fee of $3,000 and include the following items: cost of deliverable reproductions, postage and handling of Contract Documents for each Phase and/or Submittal as outlined in Article 4 and cost of transportation at a rate of $0.485 per mile. 7.2.2 The following items are considered overhead costs of the Professional Consultant and are not covered under expenses reimbursable to the Professional Consultant by the Owner: meals, entertainment, in-house materials, equipment, scans, copying, printing and other reproductions Attachment B — Professional Consulting Services Agreement necessary for the Professional Consultant's development of documents for the project, overtime, telephone and fax charges, computer use, computer time, computer disks, computer CDs and in- house scale model(s) and/or rendering(s). 7.2.3 Reimbursable expenses are to be billed at cost only and are to be invoiced with appropriate back- up data (receipts, delivery bills, etc.). 7.3 Invoicing and Payment 7.3.1 Invoicing shall be addressed to the assigned City of Evanston Project Manager, shall be submitted in spreadsheet format and shall include the following information: 1. Project name and purchase order number. 2. Amount submitted for payment broken down by Phase and/or Submittal and Professional Consultant and/or Subconsultant. 3. Total contract amount. 4. Balance remaining. 5. Percentage of Phase and overall Project complete to date. 6. Itemized reimbursable expenses (with appropriate back-up data). 7.3.2 Payment will be made in accordance with all local ordinances and regulations of the City of Evanston and in accordance with the Illinois Prompt Payment Act.