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HomeMy WebLinkAbout21-0909 HR GreenAGREEMENT THIS AGREEMENT is made and entered into this day of , 20 , by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and HR Green, Inc., an Iowa corporation, authorized to do business in the State of Illinois; (hereinafter referred to as "ENGINEER"). WHEREAS, the CITY desires to engage the ENGINEER to furnish certain professional services in connection with Grant Applications for City Parking Lot Green Infrastructure Project (hereinafter 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, 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 Public Works Director of the CITY, herein after referred to as the "DIRECTOR". B. The scope of work will include preparing grant funding applications for the Project. C. A detailed Scope of Services for the PROJECT is attached hereto as Attachment A, and incorporated into this Agreement by this reference. 2. PROGRESS REPORTS A. An outline project milestone schedule is provided hereinunder. • Notice to Proceed — August 23, 2021 • Funding Applications — TBD (Based on funding application deadline). This will be determined once the call for projects and funding application becomes available. Typically, 1-3 months are allowed for preparation and submittal of the funding application from the date of the call for projects. B. A detailed project schedule for the PROJECT is included as Attachment B, attached hereto, and incorporated into this Agreement by this reference. Progress will be recorded on the project schedule and submitted monthly as a component of the Status Report described in C below. C. The ENGINEER will submit to the DIRECTOR 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 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 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. PAYMENTS TO THE ENGINEER (Not To Exceed Method) A. For services provided the ENGINEER shall be paid on a lump sum basis on this PROJECT, with the total fee not to exceed $15,000.00 regardless of the actual costs incurred by the ENGINEER unless substantial modifications to the scope of the work are authorized in writing by the DIRECTOR, and approved by way of written amendment to this Agreement executed by the parties. B. For outside services provided by other firms or subconsultants, the CITY shall pay the ENGINEER the invoiced fee to the ENGINEER, plus 0%. The cost of any such outside services is included within the total not -to -exceed amount of $15,000.00 provided for in Section 4A above. C. Mileage and Printing Costs are included as reimbursable costs. The cost of any such reimbursable expenses is included within the total not -to -exceed amount of $15,000.00 provided for in Section 4A above. D. The CITY shall make periodic payments to the ENGINEER based upon actual progress within 30 days after receipt and approval of invoice. Said periodic payments to the ENGINEER shall not exceed the amounts shown in the following schedule, and full payments for each task shall not be made until the task is completed and accepted by the DIRECTOR. Ira Date Estimated Estimated Value of Estimated Percent Complete Work Completed Invoice Value 9/30/2021 75% $11.250.00 $11,250.00 10/31 /2021 100% $3,750.00 $15,000.00 5. INVOICES A. The ENGINEER shall submit invoices in a format approved by the CITY. Progress reports (2C above) will be included with all payment requests. 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. 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. 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 reimbursement shall not exceed the task amounts set forth under section 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 section 6, 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 tern 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. - 3 - 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 section 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 section 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, 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 section 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 The ENGINEER shall provide, pay for and maintain during the term of this Agreement the following types and amounts of 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 -4- 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, TECIINIOUES, 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 -5- 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 section, sub -section, 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 ofthe several sections ofthis 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. -6- 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 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; -7- 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. 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 DIRECTOR prior to the entry into and execution of this agreement. 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. 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: B. As to ENGINEER: Mike Pubentz Ajay Jain Public Works Director HR Green, Inc, City of Elgin 420 North Front Street 150 Dexter Court McHenry, IL 60050 Elgin, Illinois 60120-5555 29. 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 WE products and/or services with respect to this Agreement shall be legally authorized to work in 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. ENGINEER shall pay any and all costs associated with any such audit. 30. EXECUTION This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re -executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or a -mail as a defense to this agreement and shall forever waive such defense. 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: By FOR THE ENGINEER: By: &e"y 9'�� Name/Print: Aiav Jain Title: Vice President— Practice Leader FALegal Dept\Agreement\ENGINEERING AGREEMENT-FORM-clean-10-2-18 docx HRGreen® ATTACHMENT A PROFESSIONAL SERVICES AGREEMENT For Grant Applications for City Parking Lot Green Infrastructure Project Mike Pubentz City of Elgin 150 Dexter Court Elgin, IL, 60120 847.931.6081 Ajay Jain, P.E., CFM Vice President HR Green, Inc. 420 N Front Street McHenry, IL, 60050 HR Green Project Number: 201001 August 4, 2021 Version 2.1 02212019 TABLE OF CONTENTS 1.0 PROJECT UNDERSTANDING 2.0 SCOPE OF SERVICES 3.0 DELIVERABLES AND SCHEDULES INCLUDED IN THIS AGREEMENT 4.0 ITEMS NOT INCLUDED IN AGREEMENT/SUPPLEMENTAL SERVICES 5.0 SERVICES BY OTHERS 6.0 CLIENT RESPONSIBILITIES 7.0 PROFESSIONAL SERVICES FEE 8.0 TERMS AND CONDITIONS Version2.1 02212019 THIS AGREEMENT is between City of Elgin (hereafter "CLIENT") and HR GREEN, INC. (hereafter "ENGINEER"). 1.0 Project Understanding 1.1 General Understanding CLIENT desires to improve the current City Hall Parking Lot with sustainable "green infrastructure" best management practices along with resurfacing/reconstruction of the parking lot. Three (3) conceptual alternatives were prepared ranging in construction costs from $690,000 to $1,700,000 for the project with sustainable "green infrastructure" best management practices ranging in costs from $330,000 to $970,000, respectively. Additional budgetary costs were estimated for design and construction observation. CLIENT wishes to take advantage of available grant funding through the Environmental Protection Agency (EPA) Section 319 Grant Funding program as well as Illinois Environmental Protection Agency (IEPA) Green Infrastructure Grant Opportunity (GIGO) Program. Section 319 Grant Funding Program is a federal program while the GIGO is a state funding program. The CLIENT has therefore requested ENGINEER to prepare grant funding application for the preferred alternate, which will also need to be developed based on recent City Council feedback on the three conceptual alternatives presented to date. 1.2 Design Criteria/Assumptions The funding applications will follow the application criteria provided in the grant application call for projects. It is expected that the call for projects will be requested in Fall 2021. 2.0 Scope of Services The CLIENT agrees to employ ENGINEER to perform the following services: 2.1 Grant Funding Applications A. Section 319 Grant Funding Application ENGINEER will complete application forms and prepare supporting documents and engineer's estimate. Since 319 funding application is primarily a water quality focused grant, estimates will be developed to determine pollutant load reductions post completion of the project. A draft of the funding application will be prepared and submitted to the CLIENT and IEPA for review. Revisions will be made to the application based on feedback from the CLIENT and IEPA. B. GIGO Funding Application ENGINEER will complete application forms and prepare supporting documents and engineer's estimate. Since GIGO funding application is multi -objective (water quality and flood reduction), estimates will be developed to determine pollutant load reductions post completion of the project as well as documenting flood reduction, to the extent practical. A draft of the funding application will be prepared and submitted to the CLIENT and IEPA for review. Revisions will be made to the application based on feedback from the CLIENT and IEPA. Version2 1 02212019 3.0 Items not included in Agreement/Supplemental Services The following items are not included as part of this AGREEMENT: 1. Detailed survey of the project area. The conceptual design and estimates will be prepared based on GIS information including aerials, topography, desktop estimates, etc. and information provided by the CLIENT. 2. Preliminary and final engineering design Supplemental services not included in the AGREEMENT can be provided by ENGINEER under separate AGREEMENT, if desired. 4.0 Services by Others Not Applicable 5.0 Client Responsibilities CLIENT shall provide any relevant information that will be helpful in preparing the grant funding applications including, but not limited to, flooding experienced in the project area and upstream and downstream of the project. CLIENT shall also provide timely review of the draft funding applications and provide City specific information and signatures required for the completion of the grant. 6.0 Professional Services Fee 6.1 Invoices Invoices for ENGINEER's services shall be submitted, on a monthly basis. Invoices shall be due and payable within 30 days upon receipt. 6.2 Extra Services Any service required but not included as part of this AGREEMENT shall be considered extra services. Extra services will be billed on a Time and Material basis with prior approval of the CLIENT. 63 Exclusion This fee does not include attendance at any meetings or public hearings other than those specifically listed in the AGREEMENT. These service items are considered extra and are billed separately on an hourly basis with prior approval of the CLIENT. 6.4 Payment The CLIENT AGREES to pay ENGINEER on the following basis: Lump Sum in the amount of $15,000.00 Version2.1 02212019 HR+Green ATTACHMENT B - SCHEDULE • Notice to Proceed — August 23, 2021 • Funding Applications — TBD (Based on funding application deadline). This will be determined once the call for projects and funding application becomes available. Typically, 1-3 months are allowed for preparation and submittal of the funding application from the date of the call for projects.