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HomeMy WebLinkAbout11-0822 HR Green fix-02 as AGREEMENT THIS AGREEMENT is made and entered into this 22nd day of August, 2011, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and HR Green, Inc. (hereinafter referred to as "ENGINEER"). WHEREAS, the CITY desires to engage the ENGINEER to furnish certain professional services in connection with the Princeton West subdivision (hereinafter referred to as the PROJECT); and WHEREAS, the ENGINEER represents that he 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, it is hereby agreed by and between the CITY and the ENGINEER that the CITY does hereby retain the ENGINEER for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged to act for and represent it in the engineering 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 City Engineer of the CITY, herein after referred to as the "DIRECTOR". B. The ENGINEER is to conduct a field review of the site improvements in order to evaluate the condition of the improvements and to identify items of incomplete work and items that are deficient in workmanship or materials. The major items that will be reviewed in the field are: site grading and erosion control; storm and sanitary sewer systems; water system and appurtenances; and roadways (includes curb/pavement/sidewalks/driveway aprons/lighting/signage) and right of way landscaping. Deficiencies will be noted based upon the approved engineering plans and per the City of Elgin's Subdivision Ordinance and Engineering Standards. C. A detailed Scope of Services is attached hereto as Attachment A. 2. PROGRESS REPORTS The ENGINEER will provide the detailed list incomplete and deficient items of work. recommendations for proposed corrective actions, Engineer's Opinion of Probable Construction Costs for the recommended corrective actions and an estimate of quantities within 25 business days from when a notice to proceed is given. 3. WORK PRODUCTS All work products prepared by the ENGINEER pursuant hereto including, but not limited to, 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. 4. PAYMENTS TO THE ENGINEER (Not To Exceed Method) A. For services provided the ENGINEER shall be paid at the direct hourly rate of personnel employed on this PROJECT, with the total fee not to exceed S17,500.00 regardless of the actual costs incurred by the ENGINEER unless substantial modifications to the scope of the work are authorizedin writing by the DIRECTOR. B. The CITY shall make periodic payments to the ENGINEER based upon actual progress within 30 days after receipt and approval of invoice. 5. INVOICES A. The ENGINEER shall submit invoices in a format approved by the CITY. B. The ENGINEER shall maintain records showing actual time devoted and cost incurred. The ENGINEER shall permit the authorized representative of the CITY to inspect and audit all data and records of the ENGINEER for work done under this Agreement.. The ENGINEER shall make these records available at reasonable times during the Agreement period, and for a year after termination of this Agreement. 6. TERiVIINATION 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. In the event that this Agreement is so terminated, the ENGINEER shall be paid for services actually performed and reimbursable expenses actually incurred prior to termination, except that reimbursementshall not exceed the task amounts set forth under Article 4 above. 7. TERM This Agreement shall become effective as of the date the ENGINEER is given a notice to proceed and, unless terminated for cause or pursuant to Article 5, shall be deemed concluded on the date the CITY determines that all of the ENGINEER's work under this Agreement is completed. A determination of completion shall not constitute a waiver of any rights or claims which the CITY may have or thereafter acquire with respect to any term or provision of the Agreement. 8. NOTICE OF CLAIM If the ENGINEER wishes to make a claim for additional compensation as a result of action taken by the CITY, the ENGINEER shall give written notice of his claim within 15 days after occurrence of such action. No claim for additional compensation shall be valid unless so made. Any changes in the ENGINEER's fee shall be valid only to the extent that such changes are included in writing signed by the CITY and the ENGINEER. Regardless of the decision of the DIRECTOR relative to a claim submitted by the ENGINEER, all work required under this Agreement as determined by the DIRECTOR shall proceed without interruption. 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 the monies the CITY has.agreed to pay to the ENGINEER pursuant to Section 4 hereof, no action shall be commenced by the ENGINEER or any other related entity against the CITY for monetary damages. 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, attorneys 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 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 expiration, completion 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 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 which shall include Contractual obligation assumed by the ENGINEER under Article 10 entitled"Indemnification" shall be provided. 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 subject to a$1,000,000.aggregate. 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. CONSTRUCTION MEANS,METHODS,TECHNIQUES,SEQUENCES, PROCEDURES AND SAFETY The ENGINEER shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the construction, unless specifically identified in the Scope of Services. 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. 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 noway 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. 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 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 theresolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 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. 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 shall be provided by ENGINEER to the Department of Human Rights upon request 775 ILCS 5/2-105. 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: Ronald L. Rudd, P.E. Senior Engineer—Development City of Elgin 1900 Holmes Road Elgin, Illinois 60120-5555 B. As to ENGINEER: Ajay Jain, P.E. Senior Project Manager HR Green, Inc. 420 Front Street McHenry, Illinois 60050-5528 28. COMPLIANCE WITHILAWS 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, minimurn 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 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 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. 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 / \� Ci anager / 1 �7` Attest: City Clerk F:\Public_Works\Engineering\Subdivisions\Princeton West\5 Legal Doc& Corr\Princeton West HRGreen Punch List Engineering Agreement Version 20.05-19=201 l.docx • Attachment A SCOPE OF SERVICES The ENGINEER will perform a subdivision field review and inspection of the public/bonded site improvements of the Princeton West Phase 1 (Townhome Portion), Princeton West Phase 2 (Townhome Portion) and Prince Phase 3 subdivisions, as platted, in order to evaluate the condition of the improvements and to identify items of incomplete work and items that are deficient in,workmanship or materials. The ENGINEER will prepare a detailed list of incomplete and deficient items of work based upon the approved engineering plans and specifications and per the City of Elgin's Subdivision Ordinance and Engineering Standards. The ENGINEER will provide recommendations for proposed corrective actions, and Engineer's Opinion of Probable Construction Costs for the recommended corrective actions and an estimate of quantities. The deficient items will be documented in a letter format with supporting data including, but not limited to, field notes, pictures, and methodology utilized in assessing the deficiencies. The ENGINEER will provided three (3) hard copies of the report to the City in addition to electronic copies in the most recent versions of both MS Word (.docx) and Adobe Acrobat (pdf) formats. The following items will be observed and documented for deficiencies: a Storm sewer and appurtenances; o Sanitary sewer and appurtenances; o Water main and appurtenances; o Storm and sanitary sewer televising video review; a Roadway; a Sidewalk; a Curb and gutter; a Aprons; a Overflow routes; a Detention basins; a Landscaping; a Site Grading and Erosion Control; a Lighting; a Monumentation; a General restoration; and a As-built Plan review The ENGINEER will review the Phase 1 and Phase 2 as-built drawings and provide comments along with reviewing the response letter from Pearson Brown & Associates, Inc. that was provided in response to a review of the as-built drawings for Phase 3. The comments generated from the review of the as=built drawings will also note recommended corrective actions and an Engineer's Opinion of Probable Construction Costs to remedy said corrective actions.