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HomeMy WebLinkAbout12-136 Resolution No. 12-136 RESOLUTION AUTHORIZING EXECUTION OF AN AMENDMENT AGREEMENT WITH TRANSYSTEMS CORPORATION FOR GRANT WRITING SERVICES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that Sean R. Stegall,City Manager,and Kimberly A.Dewis,City Clerk,be and are hereby authorized and directed to execute an Amendment Agreement with TranSystems Corporation on behalf of the City of Elgin for grant writing services, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: September 12, 2012 Adopted: September 12, 2012 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AMENDMENT AGREEMENT THIS AMENDMENT AGREEMENT is hereby made and entered into this 12th day of September , 2012, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and TranSystems Corporation, a Missouri corporation (hereinafter referred to as"ENGINEER"). WHEREAS, the parties hereto have previously entered into agreements dated June 14, 2006, and August 5, 2010, whereby the city retained the Engineer to furnish certain professional services for a grant writer program to apply on behalf of the grants from various agencies for projects; and WHEREAS,the terms of such prior agreements have expired; and WHEREAS, the parties hereto have each determined in their best interest to amend the most recent of the previous agreements in order to extend the term for an additional two(2)years under the same terms and conditions; and WHEREAS, this Amendment Agreement is in the best interests of the City and is authorized by law and is germane to the original previous agreements as signed. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. Section 7 of the most recent previous agreement dated August 5, 2010, between the parties entitled "TERM" is hereby amended to extend the term of the August 5, 2010, Agreement attached hereto as Attachment A, for an additional two (2) years until August 5,2014. 2. Section 27 of August 5, 2010 Agreement, entitled "NOTICES" is hereby amended in its entirety to read as follows: "NOTICES" A. As to CITY: Colby Basham Public Works Superintendent City of Elgin Public Works Department 1900 Holmes Road Elgin,Illinois 60123 B. As to ENGINEER: Brian L. Fairwood Vice President TranSystems 1475 East Woodfield Road, Suite 600 Schaumburg, Illinois 60173 3. The remainder of August 5, 2010 Agreement shall remain in full force and effect. CITY OF ELGIN TRANSYSTEMS CORPORATION • 4. Gw- ity Manager ' Brt.n L. Fairwood Vice-President Attest: Attest: yaffa. City Cler Todd S. Bright Vice-President F:\Legal Dept\Agreement\Amendment Agreement-TranSystems Corp.docx Attachment"A" AGREEMENT THIS AGREEMENT is made and entered into this 5th day of August, 2010, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as the "CITY") and TranSystems Corporation, a Missouri corporation (hereinafter referred to as the "ENGINEER"). WHEREAS, the CITY desires to engage the ENGINEER to furnish certain professional services for a grant writer program to apply on behalf of the City of Elgin for grants from various agencies for projects in the City of Elgin's approved five-year capital plan, as well as other programs and services that benefit the CITY(hereinafter referred to as the"PROJECT");and, WHEREAS. The ENGINEER represents that it is in compliance with Illinois Statues relating to professional registration of individuals and has the necessary expertise and experience to furnish such services upon the terms and conditions set forth herein below. NOW, THEREFORE, for an in consideration, the receipt and sufficiency of which is hereby acknowledge, it is herby agreed by and between the CITY and the ENGINEER that the CITY does hereby retain the ENGINEER to act for a represent the CITY in the matters involved in the PROJECT as described herein, subject to the following terms and conditions and stipulations,to wit: 1. SCOPE OF SERVICES A. All work hereunder shall be performed under the direction of the Director of Public Works of the CITY,hereinafter referred as the'DIRECTOR" B. After written authorization by the City, the ENGINEER shall provide consultation and application preparation assistance to the City for grants and low interest rate loans. These services will include serving as the City's consultant to identify opportunities for such funds, target specific grant programs,prepare the applications and respond to requests for information from the grant/loan agency. 2. SCHEDULE The ENGINEER shall provide the services outlined above within a two-year time frame following the entry into and execution of this Agreement. The ENGINEER shall submit to the DIRECTOR status reports every ninety(90)days providing a brief progress report identifying progress,findings and outstanding issues. 3. WORK PRODUCTS All work products prepared by the ENGINEER pursuant hereto including,but not limited to, applications, reports, designs, calculations, work drawings, studies, photographs, models, and recommendations shall be the property of the City and shall be delivered to the CITY upon request of the DIRECTOR,provided,however,that the ENGINEER may retain copies of such work products for its records. Such work products are not intended or represented to be suitable for reuse by the CITY on any extension to the PROJECT or on any other project,and such reuse shall be at the sole risk of the CITY without liability or legal exposure to the ENGINEER. Attachment"A" 4. COMPENSATION TO THE ENGINEER The CITY will not be obligated to directly compensate the ENGINEER for the professional services described in Section I, above, but as compensation for the performance of the described services the CITY agrees to select the ENGINEER to perform the planning, designing, construction engineering services for any project for which outside funding is secured as a result of the ENGINEER's grant-writing services. The form of any such future agreements between the CITY and the ENGINEER shall be as substantially set forth in this Agreement. Compensation to the ENGINEER and the professional services to be provided in any such future agreements is to be negotiated as part of such a separate agreement,and such separate agreements are subject to the parties agreeing on reasonable compensation to the ENGINEER and the Scope of Services to be provided. The fiscal year of the CITY is the twelve-month period ending December 31. The obligations of the CITY to proceed with any project for which outside funding is secured as a result of the ENGINEERS in connection with any such project to and contingent upon the appropriation of fluids by the city council of the City of Elgin for any such projects and for any such related agreements with the ENGINEER for such projects. Any other provisions in this Agreement to the contrary notwithstanding, and decision to undertake or proceed with any project shall be in the sole discretion of the CITY,and in no event shall be the CITY be obligated to undertake or proceed with any project by virtue of this Agreement, regardless of whether the ENGINEER could secure or has secured grants or other outside funding for such project,or whether additional funds are available for such project. 5. NON-EXCLUSIVITY This Agreement shall not be exclusive. The CITY may enter into any agreements with any other entity regarding the subject matter hereof at any time and for any reason without liability to the ENGINEER. The ENGINEER may enter into any agreements with any other entity regarding the subject matter hereof at any time for any reason without liability to the CITY. 6. TERMINATION OF AGREEMENT Notwithstanding any other provision hereof,the CITY may terminate this Agreement at anytime upon fifteen(15)days prior written notice to the ENGINEER. 7. TERM This Agreement shall have a two-year term commencing from the entry into and execution of the Agreement. 8. INTENTIONALLY OMITTED 9. BREACH OF CONTRACT If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek such administrative,contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party, by reason of any default, fails within fifteen (15) days after notice thereof by the other party to comply with the conditions of the Agreement, the other party may terminate this Agreement. Notwithstanding the foregoing, or Attachment"A" anything else to the contrary in this Agreement, no action shall be commenced by the ENGINEER against the CITY for monetary damages. 10. INDEMIFICATION To the fullest extent permitted by law,ENGINEER agrees to and shall indemnify,defend and hold harmless the CITY, its offices, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorneys fees, damages or other relief, including but not limited to workers compensation claims, in any way resulting from or arising out of negligence or omissions of employees or agents of the ENGINEER arising out of the performance of this Agreement.In this event of any action against the City,its officers, employees, agents, boards or commissions,covered by the foregoing duty to indemnify,defend and hold harmless,such action shall be defended by legal counsel of the CITY's choosing. The provisions of this paragraph shall survive any completion,expiration and/or termination of this agreement. 11. NO PERSONAL LIABILITY No official,director,officer, agent or employee of the CITY shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution,approval or attempted execution of this Agreement. 12. INSURANCE A. Comprehensive Liability. The ENGINEER shall provide, pay for and maintain in effect,during the term of this Agreement,a policy of comprehensive general liability insurance with limits of at least $1,000,000 aggregate for bodily injury and $1,000,000 aggregated for property damage. The ENGINEER shall deliver to the DIRECTOR a Certification of Insurance naming the CITY as additional insured. The policy shall not be modified or terminated without thirty(30)days prior written notice to the DIRECTOR. The Certificate of Insurance shall include but not be limited to, coverage for contractual obligation assumed by the ENGINEER under Article 10 entitled "Indemnification"herein. This insurance shall apply a primary insurance with respect to any other insurance or self-insurance programs afforded to the CiTY. There shall be no endorsement or modification of this insurance to make it excess over other available insurance, alternatively if the insurance states that it is excess or prorated,it shall be endorsed to be primary with respect to the CITY. B. Comprehensive Automobile Liability. Comprehensive Automobile Liability Insurance covering all owned,non-owned and hired motor vehicles with limits of not less than$500,000 per occurrence for damage to property. C. Combined Single Limit Policy. The requirements of insurance coverage for the general liability and auto exposures may be met with a combined single limit of $1,000,000 per occurrence for damage to property. D. Professional Liability. The ENGINEER shall carry Engineers Professional Liability Insurance covering claims resulting from error, omissions or negligent acts with a combined single limit of not less than $1,000,000 per occurrence. A Certificate of Insurance shalt be submitted to the DIRECTOR as evidence of insurance protection. The policy shall not be modified or terminated without thirty(30) days prior written notice to the DIRECTOR. Attachment"A" 13. INTENTIONALLY OMITTED 14. NONDISCRIMINATION In all hiring or employment made possible or resulting from this Agreement,there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training,including apprenticeship. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions,marital status or the presence of any sensory;mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of the Agreement and shall be grounds for cancellation,termination or suspension,in whole or in part,of the Agreement by the CITY. 15. ASSIGNMENT AND SUCCESSORS This Agreement and each and every portion thereof shall be binding upon the successors and the assigns of the parties hereto; provided, however, that no assignment shall be made without the prior written consent of the CITY. 16. DELEGATIONS AND SUBCONTRACTORS Any assignment,delegation or subcontracting shall be subject to all the terms,conditions and other provisions of the Agreement and the ENGINEER shall remain liable to the CITY with the respect of each and every item,condition and other provision hereof to the same extent that the ENGINEER would have been obligated if it had done the work itself and no assignment, delegation or subcontract had been made. Any proposed subcontractor shall require the CITY's advance written approval. 17. NO CO-PARTNERSHIP OR AGENCY This agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. 18. SEVERABILITY The parties intend and agreed that, if any paragraph, sub-paragraph, phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 19. HEADINGS The headings of the several paragraphs of this Agreement are inserted only as a matter of convenience and for reference and in no way are they intended to define,limit or describe the scope of intent of any provision of this Agreement, nor shall they be construed to affect in any manner the terms and provisions hereof or the interpretation of construction thereof. Attachment"A" 20. MODIFICATION OR AMENDMENT This Agreement and its attachments constitute the entire Agreement of the parties on the subject matter hereof and may not be changed,modified,discharged,or extended except by written amendment duly executed by the parties. There are no other agreements, either oral or implied, regarding the subject matter hereof. Each party agrees that no representations or warranties shall be binding upon other party unless expressed in writing herein or in a duly executed amendment hereof, or change order as herein provided. 21. APPLICABLE LAW This agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County,Illinois. 22. NEW RELEASES The ENGINEER may not issue any news releases without prior approval from the DIRECTOR, nor will the ENGINEER make public proposals developed under this Agreement without prior written approval from the DIRECTOR prior to said documentation becoming matters of public record. 23. COOPERATION WITH OTHER CONSULTANTS The ENGINEER shall cooperate with any other consultants in the CITY'S employ or any work associated with the PROJECT. 24. INTERFERENCE WITH PUBLIC CONTRACTING The ENGINEER certifies hereby that it is not barred from bidding on this contract as a result of a violation of 720 ILCS 5/23E et. seq. or a similar state of federal statute regarding bid rigging. 25. SEXUAL HARASSMENT As a condition of this contract, the ENGINEER shall have written sexual harassment policies that include,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 vendor's internal complaint process including penalties; E. The Iegal recourse, investigative and complaint process available through the Illinois Department of Human Rights,and the Illinois Human Rights Commission; F. Directions on how to contact the department and commission; G. Protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request 775 ILLS 5/2-105. Attachment"A" 26. WRITTEN COMMUNICATIONS All recommendations and other communications by the ENGINEER to the DIRECTOR and to other participants which may affect cost or time of completion shall be made or confirmed in writing. The DIRECTOR may also require other recommendations and communications by the Engineer be made or confirmed in writing. 27. NOTICES AU notices,reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail,postage prepaid,addressed as follows: A. As to CITY: David L.Lawry,P.E. General Services Group Director City of Elgin 150 Dexter Court Elgin,Illinois 60120-5555 B. As to ENGINEER: Brian L.Fairwood Vice President TranSystems 1051 Perimeter Drive,Suite 1025 Schaumburg,Illinois 60173 28. COMPLIANCE WITH LAWS Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement that ENGINEER shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirement regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing,the ENGINEER herby certifies,represents and warrants the CITY that all the ENGINEER's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. The ENGINEER shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The CITY shall have the right to audit any records in the possession or control of the ENGINEER to determine The ENGINEER's compliance with the provisions of this section. In the event the CITY proceeds with such an audit,the ENGINEER shall make available to the CITY the ENGINEER's relevant records at no cost to the CITY. SIGNATURE PAGE TO FOLLOW Attachment"A" IN WITNESS WHEREOF, the parties hereto have entered into and executed this Agreement effective as of the date and year first written above. FOR THE CITY: FOR THE ENGINEER: By< </���, BY ti ) r ity Manager Brian . airwoo Vice President Attest: Attest: 4e,l///a0 City Clerk Todd S.Bright Vice President rik ELGIN THE CITY IN THE SUBURBS- AGENDA ITEM: D MEETING DATE: August 22, 2012 ITEM: Amendment No. 3 with TranSystems Corporation to the Grant Writer Services Agreement (No Cost to the City) OBJECTIVE: Provide grant writer services program to apply for grants from various agencies for projects that will benefit the city. RECOMMENDATION: Approve Amendment No. 3 with TranSystems Corporation for the Grant Writer Services Agreement for an additional two year period. rBACKGROUND On June 14, 2006, the city council approved an agreement with TranSystems Corporation (TranSystems) to provide services to apply for various grant opportunities with respect to the city's capital improvement needs. On August 11, 2010, the city council approved Amendment No. 2 with TranSystems to extend the grant writer services agreement for two years. During the past two year period, TranSystems has assisted the city in the preparation of seven grant and funding opportunities (see Attachment A). Amendment No. 2 to the agreement with TranSystems was approved for a period of two years through August 31, 2012. Attachment B is a copy of Amendment No. 3, which will extend the agreement with TranSystems for an additional two year period through August 31, 2014. OPERATIONAL ANALYSIS The city is not required to pay the engineer to make applications on the city's behalf. If TranSystems is successful in obtaining the city grant funds, it will be afforded the first oppor- tunity to negotiate a contract with the city to provide design and construction-related services. Should negotiations fail, staff will initiate a source selection process to complete the design and construction activities. INTERESTED PERSONS CONTACTED 411) None. FINANCIAL ANALYSIS There is no cost to the city for TranSystems to identify and apply for grants on the city's behalf. However, should a grant be awarded for an amount less than the overall cost of the project, a financing source will need to be identified to fund the difference. BUDGET IMPACT FUND(S) ACCOUNT(S) PROJECT U(S) AMOUNT AMOUNT BUDGETED AVAILABLE N/A N/A N/A N/A N/A LEGAL IMPACT None. ALTERNATIVES The city council may elect not to approve Amendment No. 3 with TranSystems for the Grant 41) Writer Services agreement. NEXT STEPS Finalize Amendment No. 3 to the agreement. Originators: Colby Basham, Public Works Superintendent Final Review: Colleen Lavery, Chief Financial Officer William A. Cogley, Corporation Counsel/Chief Development Officer Richard G. Kozal, Assistant City Manager/Chief Operating Officer Sean R. Stegall, City Manager ATTACHMENTS A. Grant and Funding Opportunities List B. Amendment No. 3 to Agreement "115 tFF 2 / "") / - , , TranSystems Funding Assistance Summary City of Elgin July 27,2012 Project Year Program Funding Request Funding Approved Fox River Bike/Pedestrian Bridge(NENA) 2012 ITEP $ 1,954,000 Pending Sidewalk Gap&Transit Stop Study 2011 CMAP $ 100,000 $ 100,000 Elgin CBD Bike Racks 2011 CMAQ $ 77,000 $ 77,000 Fox River Bike/Pedestrian Bridge(FRWRD)* 2011 CMAQ/ITEP/STP $ 1,902,000 $ - McLean Boulevard Bikeway* 2011 CMAQ $ 2,125,000 $ - Otter Creek Bike Bridge 2011 CMAQ $ 265,000 $ - Sherman Hospital-Metre Bicycle Connector 2011 CMAQ $ 1,800,000 $ - Sherman Hospital-Metra Bicycle Connector 2009 CMAQ $ 1,230,000 $ - Ped&Bike Safety Campaign 2008 ,IDOT-Highway Safety $ 24,255 $ 24,255 Bike Route 1 -NE Quadrant 2008 ITEP&CMAQ $ 338,200 $ 338,200 Bike Route 4-SW Quadrant 2008 ITEP&CMAQ $ 2,721,200 $ 2,721,200 Kimball St,and National St.Traffic Signal Interconnect 2008 - CMAQ $ 103,200 $ 103,200 Summit St at Shales Parkway Intersection Improvements 2007 CMAQ $ 195,700 $ - Totals $ 12,835,555 $ 3,363,855 *Project has been placed on the CMAQ"B" List,Construction funding could become available if City completes the engineering phases. FIRST AMENDMENT AGREEMENT THIS FIRST AMENDMENT AGREEMENT is hereby made and entered into this day of , 2012, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and TranSystems Corporation, a Missouri corporation (hereinafter referred to as "ENGINEER"). WHEREAS, the parties hereto have previously entered into an agreement dated August 5, 2010, a copy of which is attached hereto and made a part hereof as Attachment "A" (hereinafter referred to as "Original Agreement");and WHEREAS, the parties hereto have each determined it to be in their best interests to amend Original Agreement in order to extend the term of Original Agreement for an additional two(2)years under the same terms and conditions; and WHEREAS, the circumstances necessitating the changes contemplated by this First Amendment Agreement are germane to the Original Agreement as signed and this First Amendment Agreement is in the best interests of the City and is authorized by law. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. Section 7 of the Original Agreement entitled "TERM" is hereby amended to extend the term of the Original Agreement for an additional two years until August 5,2014. 2. Section 27 of Original Agreement, entitled "NOTICES" is hereby amended in its entirety to read as follows: "NOTICES" A. As to CITY: Colby Basham Public Works Superintendent City of Elgin Public Works Department 1900 Holmes Road Elgin,Illinois 60123 B. As to ENGINEER: Brian L. Fairwood Vice President TranSystems 1475 East Woodfield Road, Suite 600 Schaumburg, Illinois 60173 3. The remainder of Original Agreement shall remain in full force and effect. 411) r CITY OF ELGIN TRANSYSTEMS CORPORATION By By City Manager Blurt L. Fairwoo Vice-President Attest: Attest: City Clerk Todd S.Bright Vice-President r Attachment"A" 4111) AGREEMENT THIS AGREEMENT is made and entered into this 5th day of August, 2010, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as the "CITY") and TranSystenzs Corporation, a Missouri corporation (hereinafter referred to as the "ENGINEER"). WHEREAS, the CITY desires to engage the ENGINEER to furnish certain professional services for a grant writer program to apply on behalf of the City of Elgin for grants from various agencies for projects in the City of Elgin's approved five-year capital plan, as well as other programs and services that benefit the CITY(hereinafter referred to as the"PROJECT");and, WHEREAS. The ENGINEER represents that it is in compliance with Illinois Statues relating to professional registration of individuals and has the necessary expertise and experience to furnish such services upon the terms and conditions set forth herein below. NOW, THEREFORE, for an in consideration, the receipt and sufficiency of which is hereby acknowledge, it is herby agreed by and between the CITY and the ENGINEER that the CITY does hereby retain the ENGINEER to act for a represent the CITY in the matters involved in the PROJECT as described herein, subject to the following terms and conditions and stipulations,to wit: 1. SCOPE OF SERVICES A. All work hereunder shall be performed under the direction of the Director of Public Works of the CITY,hereinafter referred as the"DIRECTOR" 4.111) B. After written authorization by the City, the ENGINEER shall provide consultation and application preparation assistance to the City for grants and low interest rate loans. These services will include serving as the City's consultant to identify opportunities for such funds, target specific grant programs,prepare the applications and respond to requests for information from the grant/loan agency. 2. SCHEDULE The ENGINEER shall provide the services outlined above within a two-year time frame following the entry into and execution of this Agreement. The ENGINEER shall submit to the DIRECTOR status reports every ninety(90) days providing a brief progress report identifying progress,findings and outstanding issues. 3. WORK PRODUCTS All work products prepared by the ENGINEER pursuant hereto including,but not limited to, applications, reports, designs, calculations, work drawings, studies, photographs, models, and recommendations shall be the property of the City and shall be delivered to the CITY upon request of the DIRECTOR,provided,however, that the ENGINEER may retain copies of such work products for its records. Such work products are not intended or represented to be suitable for reuse by the CITY on any extension to the PROJECT or on any other project, and such reuse shall be at the sole risk of the CITY without liability or legal exposure to the ENGINEER I . • Attachment"A" 4. COMPENSATION TO THE ENGINEER The CITY will not be obligated to directly compensate the ENGINEER for the professional services described in Section 1, above, but as compensation for the performance of the described services the CITY agrees to select the ENGINEER to perform the planning, designing, construction engineering services for any project for which outside funding is secured as a result of the ENGINEER's grant-writing services. The form of any such future agreements between the CITY and the ENGINEER shall be as substantially set forth in this Agreement. Compensation to the ENGINEER and the professional services to be provided in any such future agreements is to be negotiated as part of such a separate agreement, and such separate agreements are subject to the parties agreeing on reasonable compensation to the ENGINEER and the Scope of Services to be provided. The fiscal year of the CITY is the twelve-month period ending December 31. The obligations of the CITY to proceed with any project for which outside funding is secured as a result of the ENGINEERS in connection with any such project to and contingent upon the appropriation of funds by the city council of the City of Elgin for any such projects and for any such related agreements with the ENGINEER for such projects. Any other provisions in this Agreement to the contrary notwithstanding, and decision to undertake or proceed with any project shall be in the sole discretion of the CITY, and in no event shall be the CITY be obligated to undertake or proceed with any project by virtue of this Agreement, regardless of whether the ENGINEER could secure or has secured grants or other outside funding for such project, or whether additional funds are available for such project. 5. NON-EXCLUSIVITY This Agreement shall not be exclusive. The CITY may enter into any agreements with any other entity regarding the subject matter hereof at any time and for any reason without liability to the ENGINEER. The ENGINEER may enter into any agreements with any other entity regarding the subject matter hereof at any time for any reason without liability to the CITY. 6. TERMINATION OF AGREEMENT Notwithstanding any other provision hereof, the CITY may terminate this Agreement at any time upon fifteen(15)days prior written notice to the ENGINEER. 7. TERM This Agreement shall have a two-year term commencing from the entry into and execution of the Agreement. 8. INTENTIONALLY OMITTED 9. BREACH OF CONTRACT If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek such administrative, contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party, by reason of any default, fails within fifteen (15) days after notice thereof by the other party to comply with the conditions of the Agreement, the other party may terminate this Agreement. Notwithstanding the foregoing, or Attachment"A" anything else to the contrary in this Agreement, no action shall be commenced by the ENGINEER against the CITY for monetary damages. 10. INDEMIFICATION To the fullest extent permitted by law, ENGINEER agrees to and shall indemnify,defend and hold harmless the CITY, its offices, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorneys fees, damages or other relief, including but not Iimited to workers compensation claims, in any way resulting from or arising out of negligence or omissions of employees or agents of the ENGINEER arising out of the performance of this Agreement. In this event of any action against the City, its officers, employees, agents, boards or commissions, covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the CITY's choosing. The provisions of this paragraph shall survive any completion,expiration and/or termination of this agreement. 11. NO PERSONAL LIABILITY No official, director, officer, agent or employee of the CITY shall be charged personally or held contractually liable wider any term or provision of this Agreement or because of their execution,approval or attempted execution of this Agreement. 12. INSURANCE A. Comprehensive Liability. The ENGINEER shall provide, pay for and maintain in effect,during the term of this Agreement, a policy of comprehensive general liability insurance with limits of at least $1,000,000 aggregate for bodily injury and 41) $1,000,000 aggregated for property damage. The ENGINEER shall deliver to the DIRECTOR a Certification of Insurance naming the CITY as additional insured. The policy shall not be modified or terminated without thirty(30)days prior written notice to the DIRECTOR. The Certificate of Insurance shall include but not be limited to, coverage for contractual obligation assumed by the ENGINEER under Article 10 entitled "Indemnification"herein. This insurance shall apply a primary insurance with respect to any other insurance or self-insurance programs afforded to the CITY. There shall be no endorsement or modification of this insurance to make it excess over other available insurance, alternatively if the insurance states that it is excess or prorated, it shall be endorsed to be primary with respect to the CITY. B. Comprehensive Automobile Liability. Comprehensive Automobile Liability Insurance covering all owned,non-owned and hired motor vehicles with limits of not less than$500,000 per occurrence for damage to property. C. Combined Single Limit Policy. The requirements of insurance coverage for the general liability and auto exposures may be met with a combined single limit of $1,000,000 per occurrence for damage to property. D. Professional Liability. The ENGINEER shall carry Engineers Professional Liability Insurance covering claims resulting from error, omissions or negligent acts with a combined single limit of not less than $1,000,000 per occurrence. A Certificate of Insurance shall be submitted to the DIRECTOR as evidence of insurance protection. The policy shall not be modified or terminated without thirty(30) days prior written notice to the DIRECTOR. 4) Attachment"A" 13. INTENTIONALLY OMITTED 14. NONDISCRIMINATION In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training,including apprenticeship. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions,marital status or the presence of any sensory,mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of the Agreement and shall be grounds for cancellation,termination or suspension,in whole or in part, of the Agreement by the CITY. 15. ASSIGNMENT AND SUCCESSORS This Agreement and each and every portion thereof shall be binding upon the successors and the assigns of the parties hereto; provided, however, that no assignment shall be made without the prior written consent of the CITY. 16. DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of the Agreement and the ENGINEER shall remain liable to the CITY with the respect of each and every item,condition and other provision hereof to the same extent that the ENGINEER would have been obligated if it had done the work itself and no assignment, delegation or subcontract bad been made. Any proposed subcontractor shall require the CITY's advance written approval. 17. NO CO-PARTNERSHIP OR AGENCY This agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. 18. SEVERABILITY The parties intend and agreed that, if any paragraph, sub-paragraph, phrase, clause or other provision of this Agreement, or any portion thereof, shalt be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 19. READINGS The headings of the several paragraphs of this Agreement are inserted only as a matter of convenience and for reference and in no way are they intended to define,limit or describe the scope of intent of any provision of this Agreement, nor shall they be construed to affect in any manner the terms and provisions hereof or the interpretation of construction thereof. • Attachment"A' 20. MODIFICATION OR AMENDMENT This Agreement and its attachments constitute the entire Agreement of the parties on the subject matter hereof and may not be changed,modified, discharged, or extended except by written amendment duly executed by the parties. There are no other agreements, either oral or implied, regarding the subject matter hereof. Each party agrees that no representations or warranties shall be binding upon other party unless expressed in writing herein or in a duly executed amendment hereof, or change order as herein provided. 21. APPLICABLE LAW. This agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois. 22. NEW RELEASES The ENGINEER may not issue any news releases without prior approval from the DIRECTOR, nor will the ENGINEER make public proposals developed under this Agreement without prior written approval from the DIRECTOR prior to said documentation becoming matters of public record. 23. COOPERATION WITH OTHER CONSULTANTS The ENGINEER shall cooperate with any other consultants in the CITY'S employ or any work associated with the PROJECT. 24. INTERFERENCE WITH PUBLIC CONTRACTING The ENGINEER certifies hereby that it is not barred from bidding on this contract as a result of a violation of 720 ILCS 5/23E et. seq. or a similar state of federal statute regarding bid rigging. 25. SEXUAL HARASSMENT As a condition of this contract, the ENGINEER shall have written sexual harassment policies that include, 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 vendor's internal complaint process including penalties; E. The legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. Directions on how to contact the department and commission; G. Protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request 775 ILCS 5/2-105. I Attachment"A" 26. WRITTEN COMMUNICATIONS All recommendations and other communications by the ENGINEER to the DIRECTOR and to other participants which may affect cost or time of completion shall be made or confirmed in writing. The DIRECTOR may also require other recommendations and communications by the Engineer be made or confirmed in writing. 27. NOTICES All notices,reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail,postage prepaid,addressed as follows: A. As to CITY: David L. Lawry,P.E. General Services Group Director City of Elgin 150 Dexter Court Elgin,Illinois 60120-5555 B. As to ENGINEER: Brian L. Fairwood Vice President TranSystems 1051 Perimeter Drive, Suite 1025 Schaumburg,Illinois 60173 28. COMPLIANCE WITH LAWS Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement that ENGINEER shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirement regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the ENGINEER herby certifies, represents and warrants the CITY that all the ENGINEER'S employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. The ENGINEER shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The CITY shall have the right to audit any records in the possession or control of the ENGINEER to determine The ENGINEER's compliance with the provisions of this section. In the event the CITY proceeds with such an audit, the ENGINEER shall make available to the CITY the ENGINEER's relevant records at no cost to the CITY. SIGNATURE PAGE TO FOLLOW risk Attachment"A" 4111) IN WITNESS WHEREOF, the parties hereto have entered into and executed this Agreement effective as of the date and year first written above. FOR THE CITY: FOR THE ENGINEER: BY 12/400k. f By` .? P,,`-:- -''—' .... --- Manager / Brian L7Fairwooc '~---- Vice President Attest: Attest: \'''' i 2 ckiiir0/70491 1 / City Clerk Todd S.Bright Vice President A) 1