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HomeMy WebLinkAbout14-67 Resolution No. 14-67 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH ENGINEERING ENTERPRISES, INC. 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 agreement on behalf of the City of Elgin with Engineering Enterprises, Inc. 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: May 28, 2014 Adopted: May 28, 2014 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT is hereby made and entered into this 28 day of May , 2014, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as "CITY") and Engineering Enterprises, Inc., an Illinois corporation (hereinafter referred to as "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 for grants from various agencies for projects in the CITY's approved five-year capital plan as well as other programs and services that benefit the CITY (herein referred to as the "PROJECT"); and WHEREAS, the ENGINEER represents that it is in compliance with Illinois Statutes 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 and in consideration of the mutual undertaking as contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, it is hereby agreed by and between the CITY and the ENGINEER that the CITY does hereby retain the ENGINEER to act for and 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 Public Services Director of the CITY, herein after referred to 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 herein 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 product prepared by the ENGINEER pursuant hereto including, but not limited to, reports, plans, 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 product for its records. ENGINEER'S execution of this Agreement shall constitute ENGINEER'S conveyance and assignment of all right, title and interest, including but not limited to any copyright interest, by the ENGINEER to the CITY of all such work product prepared by the ENGINEER pursuant to this Agreement. The CITY shall have the right either on its own or through such other engineers as determined by - 2 - the CITY to utilize and/or amend such work product. Any such amendment to such work product shall be at the sole risk of the CITY. Such work product is 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. 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 for the CITY is the 12 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 ENGINEER'S grant writing services 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, any decision to undertake or proceed with any project shall be in the sole discretion of the CITY, and in no event shall the CITY be obligated to undertake or proceed with any project by virtue of the Agreement, regardless of whether the ENGINEER could secure or has secured grants or 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 ENGINEER. The ENGINEER may enter into 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. - 3 - 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 anything else to the contrary in this Agreement, with the sole exception of an action to recover the monies the CITY has agreed to pay to the ENGINEER pursuant to Paragraph 4 hereof, no action shall be commenced by the ENGINEER against the CITY for monetary damages. ENGINEER hereby further waives any and all claims or rights to interest on money claimed to be due pursuant to this Agreement, and waives any and all such rights to interest which it claims it may otherwise be entitled pursuant to law, including, but not limited to, the Local Government Prompt Payment Act (50 ILCS 501/1, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The parties hereto further agree that any action by the ENGINEER arising out of this Agreement must be filed within one year of the date the alleged cause of action arose or the same will be time-barred. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 10. INDEMNIFICATION To the fullest extent permitted by law, ENGINEER agrees to and shall indemnify, defend and hold harmless the CITY, its officers, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorney's fees, damages or other relief, including but not limited to workers' compensation claims, in any way resulting from or arising out of negligent actions or omissions of the ENGINEER in connection herewith, including negligence or omissions of employees or agents of the ENGINEER arising out of the performance of this Agreement. In the event of any such 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 -4 - general liability insurance with limits of at least $1,000,000 aggregate for bodily injury and $1,000,000 aggregate 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 the contractural obligation assumed by ENGINEER under Article 10 herein entitled "Indemnification" herein. This insurance shall apply as 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 for 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. 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 be 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 this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the CITY. - 5 - 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 this Agreement and the ENGINEER shall remain liable to the CITY with respect to 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 advanced 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 or construction thereof. 20. MODIFICATION OR AMENDMENT This agreement and its attachments constitutes 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 the other party unless expressed in writing herein or in a duly executed written 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. - 6 - 22. NEWS 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 5/33E et seq. or any similar state or federal statute regarding bid rigging. 25. SUBSTANCE ABUSE PROGRAM. As a condition of this agreement, ENGINEER shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Project Act at 820 ILCS 265/1 et seq. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry into and execution of this agreement. 26. 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. 27. 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. - 7 - 28. 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: GREGORY ROKOS Public Services Director City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to ENGINEER: THOMAS W. TALSMA Vice President Engineering Enterprises, Inc 52 Wheeler Road Sugar Grove, Illinois 60554 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 the ENGINEER shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, ENGINEER hereby certifies, represents and warrants to the CITY that all 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. ENGINEER shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices becessary and incident to the due and lawful prosecution of this Agreement. The CITY shall have the right to audit any records in the possession or control of the ENGINEER to determine 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 - 8 - 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: '16, j By 4/ IMW yJ 'ea&kJL--, Sea A. Stegall Thomas W. Talsma City Manager Vice President Attest: Attest: A-6—c" By A Kimberly Dewis Angie ith City Clerk Executive Assistant