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HomeMy WebLinkAbout18-0606 Upland Design LTD I$-0606 PROPOSED AGREEMENT THIS AGREEMENT is made and entered into this v day of J/t41J' ,2018,by and between , the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and Upland Design, Ltd. (Name of the Firm), an Illinois Corporation (hereinafter referred to as "ARCHITECT"). WHEREAS,the CITY desires to engage the ARCHITECT to furnish certain professional services in connection with the design development, construction document development, bidding administration and construction observation for the playground renovations at the Elgin Sports Complex Park and Abbott Park(hereinafter referred to as the PROJECT); and WHEREAS, the ARCHITECT 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, it is hereby agreed by and between the CITY and the ARCHITECT that the CITY does hereby retain the ARCHITECT 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 Recreation and Facilities Superintendent of the CITY, herein after referred to as the "SUPERINTENDENT". B. The services to be provided by the ARCHITECT are: 1. Design Development 2. Construction Document Development 3. Bidding Administration 4. Construction Observation 2. PROGRESS REPORTS A. The ARCHITECT will submit to the SUPERINTENDENT monthly a status report keyed to the project schedule. A brief narrative will be provided, identifying progress, findings and outstanding issues. 3. WORK PRODUCTS All work product prepared by the ARCHITECT 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 SUPERINTENDENT provided, however, that the ARCHITECT may retain copies of such work products for its records. ARCHITECT's execution of this Agreement shall constitute ARCHITECT's conveyance and assignment of all right, title and interest,including but not limited to any copyright interest,by the ARCHITECT to the CITY of all such work product prepared by the ARCHITECT pursuant to this Agreement. The CITY shall have the right either on its own or through such other engineers as determined by 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 ARCHITECT. 4. PAYMENTS TO TILE ARCHITECT(Not to Exceed Method) A. For services provided the ARCHITECT shall be paid with the total fee not to exceed $16,800 regardless of actual costs incurred by the ARCHITECT unless substantial modifications to the scope of the work are authorized in writing by the SUPERINTENDENT. B. For outside services provided by other firms or sub consultants,the CITY shall pay the ARCHITECT the invoiced fee to the ARCHITECT. The costs of any such outside services are included in the not-to-exceed amount set forth in paragraph A above. C. Reimbursement for reimbursables such as field vehicles, survey consumables, and printing services are included in the not-to-exceed amount D. The CITY shall make periodic payments to the ARCHITECT based upon actual progress within 30 days after receipt and approval of invoice. Said periodic payments to the ARCHITECT shall not exceed the amounts shown in paragraph A above and full payments for each task shall not be made until the task is completed and accepted by the SUPERINTENDENT. 5. INVOICES A. The ARCHITECT shall submit invoices in a format approved by the CITY. Progress reports (2C above) will be included with all payment requests. B. The ARCHITECT shall maintain records showing actual time devoted and cost incurred. The ARCHITECT shall permit the authorized representative of the CITY to inspect and audit all data and records of the ARCHITECT for work done under this Agreement. The ARCHITECT shall make these records available at reasonable times during the Agreement period, and for a year after termination of this Agreement. 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 ARCHITECT. In the event that this Agreement is so terminated, the ARCHITECT shall be paid for services actually performed and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the task amounts set forth under Paragraph 4 above. 7. TERM This Agreement shall become effective as of the date the ARCHITECT 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 ARCHITECT'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 ARCHITECT wishes to make a claim for additional compensation as a result of action taken by the CITY, the ARCHITECT 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 ARCHITECT's fee shall be valid only to the extent that such changes are included in writing signed by the CITY and the ARCHITECT. Regardless of the decision of the SUPERINTENDENT relative to a claim submitted by the ARCHITECT, all work required under this Agreement as determined by the SUPERINTENDENT 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 to the Agreement, with the sole exception of an action to recover the monies the CITY has agreed to pay to the ARCHITECT pursuant to Paragraph 4 hereof,no action shall be commenced by the ARCHITECT against the CITY for monetary damages. ARCHITECT herby 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 no 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 ARCHITECT 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,ARCHITECT 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 worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the ARCHITECT in connection herewith, including negligence or omissions of employees or agents of the ARCHITECT arising out of the performance of this Agreement. In the event of any action against the CITY, its officers, employees, agents, boards and 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 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 ARCHITECT 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 ARCHITECT shall deliver to the SUPERINTENDENT 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 SUPERINTENDENT. The Certificate of Insurance which shall include Contractual obligation assumed by the ARCHITECT 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 genera] 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 ARCHITECT shall carry Architect's 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 SUPERINTENDENT as evidence of insurance protection. The policy shall not be modified or terminated without thirty(30) days prior written notice to the SUPERINTENDENT. 13. CONSTRUCTION MEANS, METHODS, TECHNIQUES, SEQUENCES, PROCEDURES AND SAFETY The ARCHITECT 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 ARCHITECT shall remain liable to the CITY with respect to each and every item,condition and other provision hereof to the same extent that the ARCHITECT 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 agree 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. 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 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. NEWS RELEASES The ARCHITECT may not issue any news releases without prior approval from the SUPERINTENDENT, nor will the ARCHITECT make public proposals developed under this Agreement without prior written approval from the SUPERINTENDENT prior to said documentation becoming matters of public record. 23. COOPERATION WITH OTHER CONSULTANTS The ARCHITECT shall cooperate with any other consultants in the CITY's employ or any work associated with the PROJECT. 24. INTERFERENCE WITH PUBLIC CONTRACTING The ARCHITECT 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 ARCHITECT 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 ARCHITECT to the Department of Human Rights upon request 775 ILCS 5/2-105. 26. SUBSTANCE ABUSE PROGRAM As a condition of this contract, the ARCHITECT 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. 27. WRITTEN COMMUNICATIONS All recommendations and other communications by the ARCHITECT to the SUPERINTENDENT and to other participants which may affect cost or time of completion shall be made or confirmed in writing. The SUPERINTENDENT may also require other recommendations and communications by the ARCHITECT 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: Maria Cumpata Recreation and Facilities Superintendent City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to ARCHITECT: Michelle Kelly, President Upland Design Ltd. 24042 Lockport Street Plainfield, IL 60544 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 ARCHITECT 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,ARCHITECT hereby certifies, represents and warrants to the CITY that all ARCHITECT'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. ARCHITECT 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 ARCHITECT to determine ARCHITECT's compliance with the provisions of this section. In the event the CITY proceeds with such an audit the ARCHITECT shall make available to the CITY the ARCHITECT's relevant records at no cost to the CITY and shall pay any and all costs associated with such audit. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Agreement effective as of the date and year first written above. FOR T- :ow". FOR THE ARCHITECT: By,.. By /moi City Manager Name/Prin M i(4-,€/te A , /44. Title 4CS/J,P ft est: ritlAAP City Clerk Client#:852903 UPLANDES MMlDD/YYYY) ACORDTU CERTIFICATE OF LIABILITY INSURANCE DATEs/o( MIDs THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(les)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: USI Ins Srvcs LLC Euclid-Prof PHONE (AIC,No,Ext):630 625-5219 F4X (AIC,No): 610 537-4939 2021 Spring Road,Suite 100 ADDRESS: laurie.cloninger@usi.com Oak Brook,IL 60523 312442-7200 INSURER(S)AFFORDING COVERAGE NAIL INSURER A:Sentinel Insurance Company Ltd. 11000 INSURED INSURER B:Hanford Accident&Indemnlb Company , 22357 Upland Design,Ltd. 27120 24042 W Lockport St Ste 200 INSURER C:TrumbuSlnsurancCompany INSURER D:Trawlers casualty and Surety Co.of Am 31194 Plainfield,IL 60544 INSURER E: INSURER F COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDLSUBR POLICY EFF POLICY EXP/DLIMITS LTRINSR WVD POLICY NUMBER (MMD/YYYY) (MMIDD/YYYY) A X COMMERCIAL GENERAL LIABILITY 83SBANX7798 06/01/2018 06/01/2019 EACH OCCURRENCE $1,000,000 p CLAIMS-MADE X OCCUR PREMISES(EaEiuE ence) $1,000,000 MED EXP(Any one person) $10,000 PERSONAL&ADV INJURY $1,000,000 GE 'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE _s 2,000,000 PRO- POLICY X JECT LOC PRODUCTS-COMP/OP AGG ;2,000,000 OTHER: $ B AUTOMOBILE LIABILITY 83UECZH3952 06/01/2018 06/01/2019 COa accidMBINEDent)SINGLE LIMIT $1,000,000 (E X ANY AUTO BODILY INJURY(Per person) $ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY(Per accident) $ X MESS ONLY X NON-OWNED PROPERTY DAMAGE $ _ AUTOS ONLY (Per accident) $ A x UMBRELLA LIAB X OCCUR 83SBANX7798 06/01/2018 06/01/2019 EACH OCCURRENCE $2,000,000 _ EXCESS LIAB CLAIMS-MADE AGGREGATE $2,000,000 DED X RETENTION$10,000 $ C WORKERS COMPENSATION 83WECCE4083 06/01/2018 06/01/2019 X STATUTF ETH AND EMPLOYERS'LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE Y/N E.L.EACH ACCIDENT s500,000 OFFICER/MEMBER EXCLUDED? Y N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE s500,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $500,000 D Professional 106930763 06/01/2018 06/01/2020 $3,000,000 each claim/ Liability $3,000,000 annual aggr. DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached If more space Is required) Professional Liability Is written on a'claims made'policy form. Some or all officers are excluded from Workers Compensation coverage. RE:Sports Complex and Abbott Park Playgrounds CERTIFICATE HOLDER CANCELLATION City of Elgin SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 150 Dexter Ct ACCORDANCE WITH THE POLICY PROVISIONS. Elgin,IL 60120 AUTHORIZED REPRESENTATIVE ©1988-2015 ACORD CORPORATION.MI rights reserved. ACORD 25(2016/03) 1 of 1 The ACORD name and logo are registered marks of ACORD #S23220669/M23220270 LXCAA This page has been left blank intentionally.