HomeMy WebLinkAbout23-174 Resolution No. 23-174
RESOLUTION
AUTHORIZING EXECUTION OF AN AGREEMENT WITH KLM ENGINEERING, INC.
FOR CONSTRUCTION ENGINEERING SERVICES IN CONNECTION WITH
THE BAFFLE WALL REPLACEMENT PROJECT AT LEO NELSON
RIVERSIDE WATER TREATMENT PLANT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,
that pursuant to Elgin Municipal Code Section 5.02.020B(9)the City Council hereby finds that an
exception to the requirements of the procurement ordinance is necessary and in the best interest of
the city; and
BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Richard G. Kozal, 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 KLM
Engineering, Inc., for construction engineering services in connection with the baffle wall
replacement project at Leo Nelson Riverside Water Treatment Plant, a copy of which is attached
hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: September 13, 2023
Adopted: September 13, 2023
Omnibus Vote: Yeas: 8 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
AGREEMENT
THIS AGREEMENT is made and entered into this 13th day ofseptember,2023 by and
between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as
"CITY") and KLM Engineering, Inc. a Minnesota corporation, authorized to do business in the
State of Illinois,(hereinafter referred to as"ENGINEER").
WHEREAS, the CITY has previously engaged the ENGINEER pursuant to a Purchase
Order to furnish certain design and bidding professional services in connection with the 5MG
Riverside WTP Concrete GSR & 1MG Leo Nelson Riverside WTP Welded GSR Baffle
Replacement(hereinafter referred to as the"PROJECT"and the"Original Agreement"); and
WHEREAS, the CITY has determined that it is in the best interest of the CITY to enter
into this additional agreement with the ENGINEER to add work for the PROJECT relating to
construction engineering services; 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 Water Director of
the CITY,herein after referred to as the"DIRECTOR".
B. The ENGINEER shall provide construction engineering services for the
rehabilitation and baffle wall replacement for the 1,000,000 gallon reservoir and
the 5,000,000 reservoir located at the Leo Nelson Riverside Water Treatment Plant.
A detailed Scope of Services for the PROJECT is attached hereto as Attachment A,
and incorporated into this Agreement by this reference.
C. The additional services for the PROJECT authorized pursuant to this Agreement
has been resubmitted for pricing in the same manner for which the Original
Agreement was priced and procured.This Agreement is germane to the PROJECT
and to the Original Agreement as signed.This Agreement is in the best interest of
the City of Elgin and authorized by law.
2. PROGRESS REPORTS
A. An outline project milestone schedule is provided hereinunder.
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. The City shall pay the ENGINEER for the services described in this Agreement in
accordance with Attachment C—Proposal Fee Summary, which is attached hereto
and made a part hereof, with the total fee not to exceed $68,410.00, 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. The cost of any such outside
services is included within the total not-to-exceed amount of$68,410 provided for
in Section 4A above.
C. Travel time, billed at labor rates listed; mileage at the rate of $0.90 per mile;
production supplies including duplicating, delivery, wireless communication and
facsimile expenses; cell phone charges billed at $0.00 per week. The cost of any
such reimbursable expenses is included within the total not-to-exceed amount of
$68,410.00 provided for in Section 4A above.
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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.
Anticipated Payment Schedule
October 2023 $ 0.00
November 2023 $33,467.00
December 2023 $ 0.00
January 2024 $34,943.00
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 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
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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 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.
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12. INSURANCE
The ENGINEER shall provide, maintain and pay for during the term of this Agreement the
following types and amounts of insurance:
A. Comprehensive Liability. 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.
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14. NONDISCRIMINATION/AFFIRMATIVE ACTION
The ENGINEER will not discriminate against any employee or applicant for employment because
of race,color,religion,sex,national origin,age,ancestry,order of protection status,familial status,
marital status, physical or mental disability, military status, sexual orientation, or unfavorable
discharge from military service which would not interfere with the efficient performance of the
job in question. ENGINEER shall take affirmative action to comply with the provisions of Elgin
Municipal Code Section 5.02.040 and will require any subcontractor to submit to the CITY a
written commitment to comply with those provisions. ENGINEER shall distribute copies of this
commitment to all persons who participate in recruitment, screening,referral and selection of job
applicants and prospective subcontractors. ENGINEER agrees that the provisions of Section
5.02.040 of the Elgin Municipal Code, 1976,as amended, is hereby incorporated by reference,as
if set out verbatim.
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 race, color,
religion,sex,national origin,age,ancestry,order of protection status,familial status,marital status,
physical or mental disability, military status, sexual orientation, or unfavorable discharge from
military service.
Any violation of this paragraph 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.
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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 of the several sections 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 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.
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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. 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:
Nora Bertram Shawn A. Mulhern
Water Director President
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City of Elgin KLM Engineering, Inc.
150 Dexter Court 1976 Wooddale Drive, Suite 4
Elgin, Illinois 60120-5555 Woodbury,MN 55125
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
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. COUNTERPARTS AND 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. This Agreement may be executed
electronically,and any signed copy of this Agreement transmitted by facsimile machine,email,or
other electronic means 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 facsimile machine, email, or
other electronic means shall be considered for these purposes an original signature and shall have
the same legal effect as an original signature.
IN WITNESS WHEREOF, the parties hereto have entered into and executed this
Agreement effective as of the date and year first written above.
FOR FOR T E ENGINEER:
By By:
City Manager Namelrmt: Shawn A.Mulhern
Title: President/CEO
A st/
City Clerk
Legal Dept\Agreement\KLM Engineering Agreement-Redlined-8-16-23.dcex
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ATTACHMENT A
SCOPE OF SERVICES
TASK 1: 1000 000-Gallon Leo Nelson Riverside WTP Welded GSR
This tank to be completed first in October of 2023.
Three (3)weeks of full-time inspection.
* Additional-Two(2)trips per week for three(3)weeks,for a total of six(6)trips during the baffle
wall replacement.
TASK 2: 5 000 000-Gallon Riverside WTP Concrete GSR
A This tank to be completed after the Leo Nelson Riverside WTP Welded GSR is completed.
4 Two(2)weeks of full-time inspection.
a Additional-Two(2)trips per week for six(6)weeks,for a total of twelve (12)trips during the baffle
wall replacement.
Construction Management Consists of the following:
t Attend pre-construction conference—(virtual)
Periodically perform on-site review of project's work status and report to the Owner.
♦ Coordinate progress meetings,as necessary.
♦ Review of meeting minutes.
♦ Scheduling of inspections.
♦ Assist owner with project close-out administration.
♦ Review of inspector's daily documentation.
♦ Assist Owner to process change orders.
♦ Assist Owner in preparation of monthly payment request forms.
♦ Review&approve of the contractors submittals:
✓ Drawing reviews.
✓ Welder Certifications.
✓ Welder Qualifications
✓ Welding Procedures.
✓ Coating Materials Submittal.
✓ TLCP Sampling Plan.
Deliverables
4 Contractor Submittals.
t, Daily Logs&Weather Logs.
6 Surface Preparation.
4 Daily Digital Photos.
♦ Weekly Summary&Progress Meetings.
w, Project Acceptance Certificate.
4 Warranty Inspection Report(Owner&Contractor).
ATTACHMENT B
PROJECT SCHEDULE
TASK 1: 1,000,000-Gallon Leo Nelson Riverside WTP Welded GSR
Completed October/November 2023, weather dependent.
TASK 2: S 000,000-Gallon Riverside WTP Concrete GSR
Completed December 2023/January 2024, weather dependent
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ATTACHMENT C
PROPOSAL FEE SUMMARY
1,000,000-Gallon Leo Nelson Riverside WTP Welded GSR
Three(3)weeks inspection services $24,251.00
Six(6) inspection trips during baffle replacement (6 x$1,536) 9,216.00
Total for 1MG Leo Nelson Riverside WTP Welded GSR $33,467.00
5,000,000-Gallon Riverside WTP Concrete GSR
Two(2)weeks inspection services $16,511.00
Twelve(12)inspection trips during baffle replacement(12 x$1,536) $18,432.00
Total for 5MG Riverside WTP Concrete GSR $34,943.00
TOTAL COMBINED PROJECT $68,410.00
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