HomeMy WebLinkAboutOther Operations w_ MWHCITY OF EVANSTON
PROFESSIONAL SERVICES AGREEMENT
This Master Agreement, for the provision of all Services defined in authorized task
orders issued by the City of Evanston, is made this C , 2009, by and
between the City of Evanston, located at 2100 Ridge Avenue, Evanston, Illinois, 60201
("City") and MWH Americas, Inc., located at 175 W. Jackson Blvd., Suite 1900,
Chicago, Illinois, 60604 ("Consultant").
In consideration of the mutual covenants herein contained, Consultant agrees to perform
the Services hereinafter described and specified in authorized task orders, and City agrees
to pay the amounts hereinafter described for authorized task orders, all on the terms and
conditions hereinafter set forth.
I. COMMENCEMENT DATE
Consultant shall commence the Services on the date set provided in each executed task
order. If a task order does not provide any specific commencement date, Consultant shall
commence the Services no later than three (3) DAYS AFTER City executes and delivers
a task order to Consultant.
II. COMPLETION DATE
Consultant shall complete the Services by the date set forth in each task order. If a task
order does not provide any specific completion date, Consultant shall perform the
Services diligently and continuously with an adequate number of qualified employees to
ensure completion as soon as reasonably possible. The completion date of this contract is
November 30, 2012,
III. PAYMENTS
City shall pay Consultant those fees set forth in each authorized task order based on the
Schedule of Compensation attached as Addendum A. Payment shall be made upon the
completion of each task order or for completion of a specific milestone outlined in the
task order. Any expenses in addition to those set forth in each authorized task order must
be specifically approved by the City in writing in advance. The not -to -exceed value for
this contract is $96,000.00.
IV. DESCRIPTION OF SERVICES
Consultant shall perform the services (the "Services") set forth in each authorized task
order. Addendum A presents a general outline of the type of services to be provided
under this Master Agreement,
V. GENERAL PROVISIONS
A. Services. Consultant shall perform the Services described in Addendum A and each
authorized task order in a professional and workmanlike manner. All Services performed
and documentation (regardless of format) provided by Consultant shall be in accordance
with the degree of skill and diligence normally employed by professional consultants
performing the same or similar services at the time and location said Services are
performed, free from errors or omissions, ambiguities, coordination problems, and other
defects in the documentation. Consultant shall take into account any and all applicable
plans and/or specifications furnished by City or by others at City's direction or request, to
Consultant during the term of this Agreement. All materials, buildings, structures, or
equipment designed or selected by Consultant shall be, to the best of the Consultant's
knowledge, workable for the intended use thereof, and will comply with all applicable
governmental requirements. Consultant shall cause its employees to observe the
working hours, rules, security regulations and holiday schedules of City while working at
the Property and to perform their respective duties in a manner which does not
unreasonably interfere with City's business and operations, or the business and operations
of the tenants and occupants of the Property. Consultant shall take all necessary
precautions to assure the safety of its employees who are engaged in the performance of
the Services, all equipment and supplies used in connection therewith, and all property of
City or other parties that may be affected in connection therewith. If so requested by
City, Consultant shall promptly replace any employee or agent performing the Services
if, in the opinion of the City, such performance is unsatisfactory.
B. Representation and Warranties. Consultant represents and warrants that: (1)
Consultant possesses and will keep in force all required licenses to perform the Services,
(2) the employees of Consultant performing the Services are fully qualified, licensed as
required, and skilled to perform the services, and (3) Consultant and its employees
performing the Services have had substantial experience performing comparable services
for other parties during the past five (5) consecutive years.
C. Termination. City may, at any time, with or without cause, terminate this
Agreement upon seven (7) days written notice to Consultant. If the City terminates this
agreement, the City will make payment to Consultant for services performed prior to
termination.
D. Independent Contractor.
(1) Consultant's status shall be that of an independent contractor and not that of a
servant, agent, or employee of City. Consultant shall not hold Consultant out, nor claim
to be acting, as a servant, agent or employee of City. Consultant is not authorized to, and
shall not, make or undertake any agreement, understanding, waiver or representation on
behalf of City. (2) Consultant shall at its own expense comply with all applicable
workmen's compensation, unemployment insurance, employer's liability, tax
withholding, minimum wage and hour, and other federal, state, county and municipal
laws, ordinances, rules, regulations and orders. Consultant agrees to abide by the
Occupational Safety & Health Act of 1970 (OSHA), and as the same may be amended
from time to time, applicable state and municipal safety and health laws and all
regulations pursuant thereto.
E. Conflict of Interest. Consultant represents and warrants that no prior or present
services provided by Consultant to third parties conflict with the interests of City in
respect to the Services being provided hereunder except as shall have been expressly
disclosed in writing by Consultant to City and consented to in writing to City.
F. Ownership of Documents and Other Materials. All originals, duplicates and
negatives of all plans, drawings, reports, photographs, charts, programs, models,
specimens, specifications, and other documents or materials required to be furnished by
Consultant hereunder, including drafts and reproduction copies thereof, shall be and
remain the exclusive property of City, and City shall have the unlimited right to publish
and use all or any part of the same without payment of any additional royalty, charge, or
other compensation to Consultant. Upon the termination of this Agreement, or upon
request of City, during any stage of the Services, Consultant shall promptly deliver all
such materials to City. Consultant shall not publish, transfer, license or, except in
connection with carrying out obligations under this Agreement, use or reuse all or any
part of such reports and other documents, including working pagers, without the prior
written approval of City, provided, however, that Consultant may retain copies of the
same for Consultant's own general reference. Methodologies, process know-how and
other instruments of service used to prepare the Work Product shall remain the property
of Consultant. Any modification or reuse of the Work Product without written
verification or adaptation by Consultant for the specific purpose intended will be at City's
sole risk and without liability or legal exposure to Consultant or to Consultant's
subcontractors and subconsultants.
G. Payment. Invoices for payment shall be submitted by Consultant to City at the
address set forth above, together with reasonable supporting documentation, City may
require such additional supporting documentation as City reasonably deems necessary or
desirable. Payment shall be made in accordance with the Illinois Local Government
Prompt Payment Act, after City's receipt of an invoice and all such supporting
documentation. If any undisputed payment is more than thirty (30) days late, Consultant
shall (i) provide notice of late payment to City, and (ii) if the relevant payment is not
made within thirty (30) days of receipt of such late notice, Consultant shall have the
option to suspend its provision of Services.
H. Right to Audit. Consultant shall for a period of three years following performance
of the Services, keep and make available for the inspection, examination and audit by
City or City's authorized employees, agents or representatives, at all reasonable time, all
records respecting the services and expenses incurred by Consultant, including without
limitation, all book, accounts, memoranda, receipts, ledgers, canceled checks, and any
other documents indicating, documenting, verifying or substantiating the cost and
appropriateness of any and all expenses. If any invoice submitted by Consultant is found
to have been overstated, Consultant shall provide City an immediate refund of the
overpayment (together with interest at the lesser of 18% or per annum or the highest rate
permitted by applicable law), and shall reimburse all of City's expenses for and in
connection with the audit respecting such invoice.
I. Indemnity. In addition to any liability or obligation of the Consultant to City under
any other provision of this Agreement, statute or otherwise, Consultant shall be liable to
and will hold harmless, indemnify and defend City from and against any and all demands,
judgments, awards, losses, damages, cost claims or liabilities which the City may sustain
as a result of any negligent or wrongful act of Consultant, its agents, servants, employees,
officers or subcontractors; or any claim made by employees or agents of Consultant, to
the extent caused by the negligence of Consultant in the performance of the Services.
J. Insurance. Consultant shall carry and maintain at its own cost with such companies
as are reasonably acceptable to City all necessary liability insurance (which shall include
as a minimum the requirements set forth below) during the term of this Agreement, for
damages caused or contributed to by Consultant, and insuring Consultant against claims
which may arise out of or result from Consultant's performance or failure to perform the
Services hereunder; (1) worker's compensation in statutory limits and employer's
liability insurance in the amount of at least $500,000, (2) comprehensive general liability
coverage, and designating City as additional insured for not less than $3,000,000
combined single limit for bodily injury, death and property damage, per occurrence, (3)
comprehensive automobile liability insurance covering owned non -owned and leased
vehicles for not less than $1,000,000 combined single limit for bodily injury, death or
property damage, per occurrence, and (4) errors and omissions or professional liability
insurance respecting any insurable professional services hereunder in the amount of at
least $1,000,000. Consultant shall provide City with certificates of insurance evidencing
the coverage and amounts set forth in this Section. Consultant's certificate of insurance
shall contain a provision that the coverage afforded under the policy(s) will not be
canceled or reduced without thirty (30) days prior written notice (hand delivered or
registered mail) to City.
K. Confidentiality. In connection with this Agreement, City may provide Consultant
with information to enable Consultant to render the Services hereunder, or Consultant
may develop confidential information for City. Consultant agrees (i) to treat, and to
obligate Consultant's employees to treat, as secret and confidential all such information
whether or not identified by City as confidential, (ii) not to disclose any such information
or make available any reports, recommendations and /or conclusions which Consultant
may make for City to any person, firm or corporation or use the same in any manner
whatsoever without first obtaining City's written approval, and (iii) not to disclose to City
any information obtained by Consultant on a confidential basis from any third party
unless Consultant shall have first received written permission from such third party to
disclose such information.
L. Use of City's Name or Picture of Property. Consultant shall not in the course of
performance of this Agreement or thereafter use or permit the use of City's name nor the
name of any affiliate of City, nor any picture of or reference to the Property in any
advertising, promotional or other materials prepared by or on behalf of Consultant, nor
disclose or transmit the same to any other party.
M. No Assignments or Subcontracts. Consultant shall not assign or subcontract all or
any part or its rights or obligations hereunder without City's express prior written
approval, and any attempt to do so shall at City's option be null and void and of no force
or effect whatsoever. Consultant shall not employ, contract with, or use the services of
any other architect, interior designer, engineer, consultant, special contractor, or other
third party in connection with the performance of the Services without the prior written
consent of City.
N. Compliance with Applicable Statues, Ordinances and Regulations. In performing
the Services, Consultant shall comply with all applicable federal, state, county, and
municipal statues, ordinances and regulations, at Consultant's sole cost and expense,
except to the extent expressly provided to the contrary in any authorized task order.
O. Liens and Encumbrances. Consultant, for itself, and on behalf of all subcontractors,
suppliers, materialmen and others claiming by, through or under Consultant, hereby
waives and releases any and all statutory or common law mechanics' materialmens' or
other such lien claims, or rights to place a lien upon the Property or any improvements
thereon in connection with any Services performed under or in connection with this
Agreement. Consultant further agrees, as and to the extent of payment made hereunder,
to execute a sworn affidavit respecting the payment and lien releases of all
subcontractors, suppliers and materialmen, and a release of lien respecting the Services at
such time or times and in such form as may be reasonably requested by City. Consultant
shall protect City from all liens for labor performed, material supplied or used by
Consultant in connection with the Services undertaken by consultant hereunder, and shall
not at any time suffer or permit any lien or attachment or encumbrance to be imposed by
any subcontractor, supplier or materialmen, or other person, firm or corporation, upon
the Property or any improvements thereon, by reason or any claim or demand against
Consultant or otherwise in connection with the Services.
P. Notices. Every notice or other communication to be given by either party to the other
with respect to this Agreement, shall be in writing and shall not be effective for any
purpose unless the same shall be served personally or by United States certified or
registered mail, postage prepaid, addressed if to City as follows: City of Evanston, 2100
Ridge Avenue, Evanston, Illinois 60201, Attention: Purchasing Division and to
Consultant at the address first above set forth, or at such other address or addresses as
City or Consultant may from time to time designate by notice given as above provided.
Q. Attorney's Fees. In the event that any action, suit, or other proceeding is instituted
to remedy, prevent, or obtain relief from a breach of this Agreement, or arising out of a
breach of this Agreement, the prevailing party shall recover from the unsuccessful party
as part of the judgment all of such party's attorneys' fees incurred in each and every such
action, suit, or other proceeding,
R. Waiver. Any failure or delay by City or Consultant to enforce the provisions of this
Agreement shall in no way constitute a waiver by City or Consultant of any contractual
right hereunder, unless such waiver is in writing and signed by City or Consultant.
S. Severability. In the event that any provision of this Agreement should be held void,
or unenforceable, the remaining portions hereof shall remain in full force and effect.
T. Choice of Law. The rights and duties arising under this Agreement shall be
governed by the laws of the State of Illinois.
U. Limitation of Liability. No individual of City shall have any personal liability in
connection with this agreement. Consultant shall look solely to the assets of City for the
satisfaction of any judgment in connection herewith. In no event shall Consultant be
liable for any indirect, incidental, special or consequential damages whatsoever
(including but not limited to lost profits or interruption of business) arising out of or
related to the Services provided under this Agreement, even if advised of the possibility
of such damages.
V. Time. All time limits provided in this Agreement, authorized task order and any
Addenda or Exhibits hereto are of the essence of this Agreement.
W. Force Majeure. Neither party shall be responsible for a delay in its performance
under this Agreement, other than a delay in payment for Services already performed, if
such delay is caused by extraordinary weather conditions or other natural catastrophes
war, terrorism, riots, strikes, lockouts or other industrial disturbances, acts of any
governmental agencies or other events beyond the reasonable control of the claiming
party. Consultant shall be entitled to an equitable adjustment to the compensation and the
project schedule as a result of any such delay.
X. Survival. Except as expressly provided to the contrary herein, all provisions of this
Agreement shall survive all performances hereunder.
VI. INTEGRATION
This Agreement, together with Addendum A, and any task order authorized by the City
and executed by both parties, constitute the entire agreement between the parties and
supersedes all previous written or oral agreements, if any, relative to the subject matter
hereof. In the event of any inconsistency between this Agreement, task orders, any
Exhibits, this Agreement shall control over the task orders and Exhibits. In the event of
inconsistency among task orders or Exhibits, the more detailed task order or Exhibit shall
control. In no event shall any proposal or contract form submitted by Consultant be part
of this Agreement unless agreed to a signed by both parties and attached and referred to
herein as an Addendum, and in such event, only the portions of such proposal or contract
form consistent with this Agreement and other task orders, Addenda and Exhibits hereto
shall be part hereof.
IN WITNESS WHEREOF, the parties hereto have each approved and executed this
Agreement on the day, month and year first above written.
CONSULTANT:
MWH AMERICAS, INC.
175 W. JACKSON BLVD., SUITE 1900
CHICAGO, IL 60604
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CITY OF EVANSTON
2100 RIDGE AVENUE
EVANSTON, IL 60201
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ADDENDUM A
GENERAL SCOPE OF SERVICES
AND SCHEDULE OF COMPENSATION
This ADDENDUM A to that Master Agreement dated e,m b, ,- 13, 2009
between the City of Evanston, 2100 Ridge Avenue, Evanston, Illinois, 60201 ("City")
and MWH Americas, Inc., 175 W. Jackson Blvd., Suite 1900, Chicago, Illinois, 60604
("Consultant") sets forth the general type of services to be covered under the Master
Agreement and the Schedule for compensation for services provided. Specific scope,
schedule and compensation limits for individual task orders will be defined and specified
in each authorized task order.
I. COMMENCEMENT DATE: to be specified in each authorized task order.
II. COMPLETION DATE: to be specified in each authorized task order,
III. FEES:
A not -to -exceed amount will be defined in the task order form executed for each
authorized task order. Compensation for services will be based on the cost plus structure
described unless otherwise defined in an authorized task order.
CLIENT shall pay to CONSULTANT as Compensation under this Task Order the
actual salary for time directly chargeable to the Project times a multiplier of 3_0 to cover
all overhead costs and fee ("Labor Billings") plus reimbursable direct expenses.
Reimbursable expenses attributable to the Project shall include:
• Living and traveling expenses of employees when away from the home office on
business connected with the Services;
• An associated project cost ("APC") rate for telecommunications, postage,
computers, word processors, incidental photocopying, and related equipment in
the amount of $ 9.29 per labor hour;
• The cost of reproduction, printing and binding applicable to the Project;
• A CAD rate in the amount of $ 16.53 per computer aided design/drafting hour to
cover the hardware, software and related expenses of CAD; and
• The actual cost of outside and subcontracted services identifiable to the -Project at
the rate of 1_1 times actual cost.
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CLIENT will pay CONSULTANT additional compensation for labor and expenses
incurred by CONSULTANT in responding to or and assisting with any audit required by
CLIENT, or any federal, state and local government agencies or for adjustment to the
Compensation to reflect changes to the Services. The basis of payment will be the
CONSULTANT's normal commercial rate for such services unless otherwise defined by
an amendment to this Agreement.
IV. SERVICES:
It is anticipated that services to be provided under this Master Agreement will be
related to the maintenance, updating, and application of the hydraulic model of the
Evanston water distribution system. Specific services to be provided in association with
each task order will be described in the authorized task order form. A general listing of
the type of services that may be provided under this Master Agreement is given below.
➢ Updates of network, facility and/or demand data;
➢ Performance of additional distribution system held testing, including C-factor
testing;
➢ Additional calibration/verification of the existing water distribution model;
➢ Use of the model for hydraulic, water age, or water quality analyses and
documentation of results;
➢ Review and evaluation of model results as the basis for recommending water
distribution system improvements;
➢ Training workshops with City of Evanston staff;
➢ Presentations to City of Evanston staff, Council members, or public groups;
➢ Preparation and submittal of technical memoranda or reports documenting
modeling activities;
➢ Coordination/progress meetings with City staff and management of technical
activities;
➢ Use of the Protector Suite extension; and
➢ Use of the UDF Suite extension.
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