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HomeMy WebLinkAbout23-26 Resolution No. 23-26 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH UPLAND DESIGN, LTD FOR PROFESSIONAL SERVICES IN CONNECTION WITH MILLENNIUM PARK RENOVATION 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 Upland Design, Ltd., for professional services in connection with Millennium Park renovation, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kapta_in David J. Kaptain, Mayor Presented: February 22, 2023 Adopted: February 22, 2023 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT("Agreement")is made and entered into this 22ud day of February , 2023,by and between the CITY OF ELGIN,an Illinois municipal corporation(hereinafter referred to as "CITY") and Upland Design, Ltd., an Illinois corporation (hereinafter referred to as "LANDSCAPE ARCHITECT"'). WHEREAS, the CITY desires to engage the LANDSCAPE ARCHITECT to furnish certain professional services in connection with Millennium Park Renovation(hereinafter referred to as the"PROJECT"); and WHEREAS, the LANDSCAPE 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 LANDSCAPE ARCHITECT that the CITY does hereby retain the LANDSCAPE ARCHITECT for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged to perform the services relating to 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 Parks and Facilities Superintendent of the CITY, herein after referred to as the "SUPERINTENDENT". B. The scope of work shall include design development to prepare fmal design and construction documents for the City's preferred design alternative. LANDSCAPE ARCHITECT's services to be performed will include architectural design, permitting, and construction bidding coordination. C. A detailed Scope of Services is attached hereto as Attachment A. 2. PROGRESS REPORTS A. An outline project milestone schedule and project schedule for the PROJECT is included as Attachment B,attached hereto. Progress will be recorded on the project schedule and submitted monthly as a component of the Status Report described in 2.0 below. B. The LANDSCAPE ARCHITECT will submit to the SUPERINTENDENT monthly a status report keyed to the project schedule. A brief narrative will be provided identifying progress, fmdings and outstanding issues. 3. WORK PRODUCT All work product prepared by the LANDSCAPE 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 LANDSCAPE ARCHITECT may retain copies of such work product for its records. LANDSCAPE ARCHITECT's execution of this Agreement shall constitute LANDSCAPE ARCHITECT's conveyance and assignment of all right,title and interest,including but not limited to any copyright interest, by the LANDSCAPE ARCHITECT to the CITY of all such work product prepared by the LANDSCAPE ARCHITECT pursuant to this Agreement. The CITY shall have the right either on its own or through such other consultants 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 LANDSCAPE ARCHITECT. 4. PAYMENTS TO THE CONSULTANT(Lump Sum Method) A. The City shall reimburse the LANDSCAPE ARCHITECT for services under this Agreement a lump sum of Sixty Thousand Two Hundred Dollars ($60,200), regardless of the actual costs incurred by the LANDSCAPE ARCHITECT unless substantial modifications to the scope of the work are authorized in writing by the SUPERINTENDENT, and approved by way of written amendment to this Agreement executed by the parties. B. For outside services provided by other firms or subcontractors,the CITY shall pay the LANDSCAPE ARCHITECT the invoiced fee to the LANDSCAPE ARCHITECT. The costs for any such outside services are included within the total lump sum amount provided for in paragraph 4.A above. C. Reimbursable expenses shall include postage, printing of drawings, and mileage reimbursement. The costs of any such reimbursable expenses are not included within the total lump sum amount provided for in paragraph 4.A above and shall be invoiced separately by the LANDSCAPE ARCHITECT at LANDSCAPE ARCHITECT's direct cost. Mileage reimbursement will be at current IRS rates. The total costs of any such reimbursable expenses shall not exceed the total amount of $1,000.00, regardless of the actual costs incurred by the LANDSCAPE ARCHITECT. D. The CITY shall make periodic payments to the LANDSCAPE ARCHITECT based upon actual progress within thirty (30) days after receipt and approval of invoice. Said periodic payments to the LANDSCAPE ARCHITECT 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 SUPERINTENDENT. -2 - DATE PROJECT COMPONENT FEE 03/01/23 Design Development $12,040 Construction Plans, Specifications, 04/01/23 and Bid Proposal $24,080 05/01/23 Permitting $5,020 05/22/23 Bidding $3,010 10/02/23 Construction Observation $16,050 5. INVOICES A. The LANDSCAPE ARCHITECT shall submit invoices in a format approved by the CITY. Progress reports(2.0 above)will be included with all payment requests. B. The LANDSCAPE ARCHITECT shall maintain records showing actual time devoted and cost incurred. The LANDSCAPE ARCHITECT shall permit the authorized representative of the CITY to inspect and audit all data and records of the LANDSCAPE ARCHITECT for work done under this Agreement. The LANDSCAPE ARCHITECT shall make these records available at reasonable times during the Agreement period and for one (1) 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 LANDSCAPE ARCHITECT. In the event that this Agreement is so terminated, the LANDSCAPE 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 LANDSCAPE ARCHITECT is given a notice to proceed and,unless terminated for cause or pursuant to Paragraph 6,shall be deemed concluded on the date the CITY determines that all of the LANDSCAPE 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 this Agreement. -3 - 8. NOTICE OF CLAIM If the LANDSCAPE ARCHITECT wishes to make a claim for additional compensation as a result of action taken by the CITY, the LANDSCAPE ARCHITECT shall give written notice of his claim within fifteen(15) days after occurrence of such action. No claim for additional compensation shall be valid unless so made. Any changes in the LANDSCAPE ARCHITECT's fee shall be valid only to the extent that such changes are included in writing signed by the CITY and the LANDSCAPE ARCHITECT. Regardless of the decision of the SUPERINTENDENT relative to a claim submitted by the LANDSCAPE 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 in this Agreement, with the sole exception of an action to recover the monies the CITY has agreed to pay to the LANDSCAPE ARCHITECT pursuant to Paragraph 4 hereof, no action shall be commenced by the LANDSCAPE ARCHITECT against the CITY for monetary damages. LANDSCAPE ARCHITECT 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 LANDSCAPE 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 The LANDSCAPE ARCHITECT agrees, to the fullest extent permitted by law, to indemnify and hold harmless The City, its past, present and future Commissioners, officials, department heads, and employees, (hereinafter collectively referred to as "Indemnitees") from and against all liability, judgments, or other liabilities including costs, reasonable fees and expenses of defense recoverable under applicable law incurred by Indemnitees to a third party arising from any loss, damage, injury, death, or loss or damage to property, of whatsoever kind or nature to such third party, to the extent caused by LANDSCAPE ARCHITECT's negligent acts, errors or omissions in the performance of the services under this Contract and those of its agents, employees or consultants. In the event of joint or concurrent negligence, LANDSCAPE ARCHITECT shall bear only that portion of the loss or expense that its share of the joint or concurrent negligence bears to the total negligence (including that of the third parties and Indemnitees) which caused the personal injury or damage. Nothing stated herein shall be deemed to require the LANDSCAPE ARCHITECT to indemnify or hold harmless any Indemnitee for its own negligence or fault. -4- Indemnitees do not waive their defenses or immunities under the Local Government and Governmental Employees Tort Immunity Act(745 ILCS 10/1 et seq.)by reason of this indemnification provision. Indemnification shall survive the termination of this Contract. 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 LANDSCAPE ARCHITECT 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 LANDSCAPE ARCHITECT shall deliver to the SUPERINTENDENT a Certificate 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 shall include the contractual obligation assumed by the LANDSCAPE ARCHITECT under Paragraph 10 entitled"Indemnification". This insurance shall be primary and non-contributory 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. 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 bodily injury and/or property damage. 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 LANDSCAPE ARCHITECT shall carry LANDSCAPE 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 claim.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. -5 - 13. CONSTRUCTION MEANS,METHODS,TECHNIQUES. SEQUENCES, PROCEDURES AND SAFETY The LANDSCAPE 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/AFFIRMATIVE ACTION The LANDSCAPE ARCHITECT 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. LANDSCAPE ARCHITECT 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. LANDSCAPE ARCHITECT shall distribute copies of this commitment to all persons who participate in recruitment, screening, referral and selection of job applicants and prospective subcontractors. LANDSCAPE ARCHITECT 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 LANDSCAPE ARCHITECT shall remain -6- liable to the CITY with respect to each and every item,condition and other provision hereof to the same extent that the LANDSCAPE 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 constitute 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 LANDSCAPE ARCHITECT may not issue any news releases without prior approval from the SUPERINTENDENT, nor will the LANDSCAPE ARCHITECT make public proposals developed under this Agreement without prior written approval from the SUPERINTENDENT prior to said documentation becoming matters of public record. -7 - 23. COOPERATION WITH OTHER CONSULTANTS The LANDSCAPE 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 LANDSCAPE 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 LANDSCAPE 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 LANDSCAPE ARCHITECT to the Department of Human Rights upon request(775 ILCS 5/2-105). 26. SUBSTANCE ABUSE PROGRAM. As a condition of this agreement,LANDSCAPE 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. -8 - 27. WRITTEN COMMUNICATIONS All recommendations and other communications by the LANDSCAPE 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 LANDSCAPE ARCHITECT 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 the CITY: Greg Hulke Parks and Facilities Superintendent City of Elgin 150 Dexter Court Elgin,Illinois 60120-5555 B. As to the LANDSCAPE ARCHITECT: Upland Design Ltd. 24042 Lockport St., Suite 200 Plainfield, IL 60544 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 LANDSCAPE 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, LANDSCAPE ARCHITECT hereby certifies, represents and warrants to the CITY that all LANDSCAPE ARCHITECT'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. LANDSCAPE 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 LANDSCAPE ARCHITECT to determine LANDSCAPE ARCHITECT's compliance with the provisions of this paragraph. In the event the CITY proceeds with such an audit the LANDSCAPE ARCHITECT shall make available to the CITY the LANDSCAPE ARCHITECT's -9- relevant records at no cost to the CITY. LANDSCAPE ARCHITECT 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 or email 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 or email 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. CITY By: f.4 ooe�_z_e: 4��ILO Richard G. Kozal, City Manager Atte t: City Clerk LANDSCAPE ARCHITECT: By: Aland Design Ltd Name/Print: Michelle A. Kelly Title: President Legal Dept\Agreement\Agr-Upland Design-Millennium Park-2-2-23-Clean.docx - 10- ATTACHMENT A SCOPE OF SERVICES Project Scope: Upland Design Ltd proposes to accomplish the following work items to assist the City with development of construction documents, permitting,bidding and construction administration. An approximate timeline is indicated at the end of the scope, and actual dates will be set to accommodate City of Elgin needs. The project is to be implemented through public bidding and construction by a contractor. Base Information: A topographic survey has been provided by the City to Upland Design. This will be the baseplan for the design development and construction documents. A FIRM map and a National Wetland Map have been reviewed during the concept design and no wetland nor floodplain/floodway are shown on the site.No further investigation will be completed. Design Development Plans The design team will prepare design development plans based on the approved Concept Plan developed in 2021. The plans will include detailed layout of amenities-detailing the shelter renovation,play/fitness choices, game table area,basketball/gaga pit/baggo options. Also included will be choices for seating and signage for the pollinator garden. An updated cost estimate will be prepared based on 2022 pricing. Review Meeting: A meeting will be held with the City's team to review plans, color options and the updated costs. Discussion of inflation on proposed park elements pricing will be done and any adjustments will be reviewed with the City. (1 meeting) Construction Plans, Specifications and Bid Proposal Based on the approved design development plans and costs,the Upland Design team will prepare a set of construction plans, specifications and bid proposal for public bidding. Construction documents will address the following: • Existing Conditions and Removal • Layout • Grading,and Drainage • Shelter Renovation Plans • Soil Erosion Control • Landscape Plantings&Restoration • Construction Details • General and Technical Specifications • Bid Proposal Form 11 The specifications will cover each area of construction.A review meeting at 50%and 90%complete construction documents will take place with City of Elgin staff and comments from the meetings will be incorporated into the documents. An updated estimate of construction costs will be updated for each review meeting. OSLAD requirements will be incorporated into the bidding and construction documents per the IDNR agreement. (2 meetings) Permits: Permits submittals will be prepared and submitted for the following: o City of Elgin Building Permit o IEPA NOI SWPP Permit: Submitted Online o Given that the area of disturbance is less than one acre, an IL EPA NOI will not be prepared or submitted. If the project scope expands or it is later found that additional permits are required, additional professional scope and associated fees will be discussed with the City.No work is proposed in floodplain nor wetland areas for this project. Bidding The bid documents will be distributed through the City of Elgin purchasing department. Accurate Repro who will provide both digital and paper copies as requested by bidders. Upland Design will contact contractors with an invitation to bid. The City will place the legal ad in a local paper and perform any other procedure as required by local purchasing policies and IDNR OSLAD agreement requirements. Upland Design will be available to answer questions during bidding,will be present at the bid opening, check bids for math accuracy, and review the bids with staff. If necessary,references will be contacted and a letter summarizing bidding and references will be written. (1 meeting) Construction Observation Upon award of a contract,Upland Design will make twelve sites visits during construction. City staff will make additional site visits during construction. • Review submittals • Upland Design Ltd to assist with field orders,change orders,requests for information and clarifications as necessary • Review Contractor submittals and pay applications will be reviewed prior to forwarding to the City. Certified Payroll will not be reviewed or retained by Upland Design Ltd. We will be available by phone to answer questions • Upland Design Ltd to provide twelve(12)field observation visits, along with written field reports during the construction phase. This will include a punch list inspection at the conclusion of construction. The Firm shall have the authority to act on behalf of the Owner only to the extent provided in this Agreement. The Firm shall not have control over, charge of, or responsibility for construction means, methods,techniques,sequences or procedures,or for safety precautions and programs in connection with the construction work,nor shall the Firm be responsible for the Contractor's failure to perform the construction work in accordance with the requirements of the Contract Documents 12 ATTACHMENT B PROJECT SCHEDULE Description Start Date Estimated Completion Date Design Development February 1, 2023 March 1, 2023 Construction Documents March 1, 2023 April 1, 2023 Permitting April 1, 2023 May 1, 2023 Bidding May 1, 2023 May 22, 2023 Construction June 1, 2023 October 2, 2023