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HomeMy WebLinkAbout24-205 Resolution No. 24-205 RESOLUTION AUTHORIZING EXECUTION OF A MASTER SERVICES AGREEMENT WITH FEHR- GRAHAM ASSOCIATES LLC FOR PROFESSIONAL SERVICES IN CONNECTION WITH VARIOUS UTILITY DIVISION PROJECTS 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 a Master Services Agreement on behalf of the City of Elgin with Fehr-Graham Associates LLC, for professional services in connection with various utility division projects, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: September 11, 2024 Adopted: September 11, 2024 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk MASTER SERVICES AGREEMENT THIS MASTER SERVICES AGREEMENT("MSA") is made and entered into this 11th day of September, 2024, ("Effective Date") by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and Fehr-Graham & Associates LLC, an Illinois limited liability company(hereinafter referred to as"ENGINEER"). WHEREAS, the CITY desires to engage the ENGINEER to furnish certain professional services in connection with various Utility Division projects (hereinafter referred to as the PROJECT); and WHEREAS, the parties hereto intend to contract for individual tasks from time to time pursuant to the terms and provisions of this MSA; and WHEREAS, the ENGINEER represents that it is in compliance with Illinois Statutes relating to professional design firm registration and has necessary professionally licensed individuals 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. The above recitals are incorporated into and made a part of this Agreement as if fully recited hereby. 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 Scope of Services for this PROJECT shall include providing professional engineering services for various utility projects.The PROJECT,PROJECT timing, and detailed PROJECT scope for each task order shall be agreed to between the parties hereto prior to issuance of any task orders.Individual task orders shall define the detailed Scope of Services with specified Deliverables, Compensation, and Schedule of each task associated with the PROJECT. C. A sample task order to be used as a template to define the scope of services, compensation and schedule for each task for which the ENGINEER is hereinafter retained is attached hereto as Attachment A. D. This Agreement shall be effective through the use of applicable Task Orders, to which this MSA shall apply and control. The determination of whether to issue a task order and to enter into a task order with the ENGINEER shall be at the sole discretion of the CITY. The issuance and entry into task orders between the CITY and the ENGINEER is not exclusive. 2. PROGRESS REPORTS A. The following general task completion dates shall apply: (1) Kickoff meeting to discuss PROJECT priority and Scope in September 2024. (2) Task order completion by August 31,2025. B. A detailed project schedule for the PROJECT shall be defined on individual task orders following the format of the sample task order shown in Attachment A, attached hereto and made a part hereof. Progress shall be recorded on the project schedule and submitted monthly as a component of the Status Report described in C below. C. The ENGINEER shall submit to the DIRECTOR a monthly status report correlating to the aforementioned project schedule. A brief narrative shall be provided identifying progress, findings and outstanding issues. 3. WORK PRODUCTS All work products 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 products 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 products are not intended or represented to be suitable for reuse by the CITY on any extension to the PROJECT or on any other project, and such reuse shall be at the sole risk of the CITY without liability or legal exposure to the ENGINEER. 4. PAYMENTS TO THE ENGINEER(Not To Exceed Method) A. For services provided the ENGINEER shall be paid based on the ENGINEER'S hourly rates of compensation for work time performed plus authorized expenses herein as authorized by the City in the City's sole discretion. A listing of the ENGINEER'S 2024 Hourly Fees and Expense Items is attached hereto and made a part hereof as Attachment B. The ENGINEER'S full payment for the PROJECT shall not exceed a maximum total of $150,000 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. The aforementioned not to -2 - exceed amount of $150,000 shall be inclusive of all expenses and costs of whatsoever nature and for whatsoever purpose, including but not limited to outside services provided by other firms, subconsultants and/or subcontractors. B. The CITY shall make periodic payments to the ENGINEER based upon actual progress within 30 days after receipt and approval of invoice. Full payment for each task shall not be made until the task is completed and accepted by the DIRECTOR. 5. INVOICES A. The ENGINEER shall submit invoices in a format approved by the CITY. Progress reports(2C above)shall 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 such 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 or any Task Order, at any time upon fifteen(15)days prior written notice to the ENGINEER at the City's sole discretion. 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 amounts set forth under the applicable Task Orders or pursuant to this Agreement. 7. TERM This Agreement shall become effective as of the Effective Date,and shall continue, unless terminated for cause or pursuant to Section 6, and shall be deemed concluded on the date the CITY determines that all of the ENGINEER's work under the last applicable Task Order incorporating this Agreement is completed, or upon the expenditure of all of the not to exceed amounts provided for herein, whichever is sooner. A determination of completion of a Task Order 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 its claim within 15 days after the occurrence of such action. No claim for additional compensation shall be honored, -3 - processed,or paid unless so made. Any changes in the ENGINEER's compensation shall be paid only to the extent that such changes are agreed to and 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, attorney's fees, damages or other relief,including but not limited to workers compensation claims,in any way resulting from or arising out of negligent actions or omissions of the ENGINEER in connection herewith, including negligence or omissions of employees or agents of the ENGINEER arising out of the performance of this Agreement. In the event of any action against the CITY, its officers, employees, agents, boards or commissions, covered by the foregoing duty to indemnify,defend and hold harmless such action shall be defended by legal counsel of the CITY's choosing.The provisions of this paragraph shall survive any expiration,completion and/or termination of this Agreement. 11. NO PERSONAL LIABILITY No official, director, officer, agent or employee of the CITY shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. -4- 12. INSURANCE A. Comprehensive Liability. The ENGINEER shall provide, pay for and maintain in effect, during the term of this Agreement, a policy of comprehensive general liability insurance with limits of at least$1,000,000 aggregate for bodily injury and $1,000,000 aggregate for property damage. The ENGINEER shall deliver to the DIRECTOR a Certificate of Insurance naming the CITY as additional insured. The policy shall not be modified 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. 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, TECHNIOUES, 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. -5 - 14. NONDISCRIMINATION In all hiring or employment made possible or resulting from this Agreement,there shall be no discrimination against any employee or applicant for employment because of sex, age, race,color, creed,national origin,marital status, of the presence of any sensory,mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex,race,color,creed,national origin,age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation,termination or suspension, in whole or in part,of the Agreement by the CITY. 15. ASSIGNMENT AND SUCCESSORS This Agreement and each and every portion thereof shall be binding upon the successors and the assigns of the parties hereto; provided,however, that no assignment shall be made without the prior written consent of the CITY. 16. DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the ENGINEER shall remain liable to the CITY with respect to each and every item,condition and other provision hereof to the same extent that the ENGINEER would have been obligated if it had done the work itself and no assignment, delegation or subcontract had been made. Any proposed subcontractor shall require the CITY's advanced written approval. 17. NO CO-PARTNERSHIP OR AGENCY This Agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. 18. SEVERABILITY The parties intend and 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. -6- 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 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 Van!T h 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; - 7 - 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 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 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: Nora Bertram Water Director City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 -8 - • B. As to ENGINEER: Jason T. Stoll, P.E. Fehr Graham 515 Lincoln Highway Rochelle, IL. 61068 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 legal residents of the United States. ENGINEER shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The CITY shall have the right to audit any records in the possession or control of the ENGINEER to determine ENGINEER'S compliance with the provisions of this section. In the event the CITY proceeds with such an audit the ENGINEER shall make available to the CITY the ENGINEER'S relevant records at no cost to the CITY. 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 e-mail as a defense to this agreement and shall forever waive such defense. SIGNATURE PAGE FOLLOWS -9- IN WITNESS WHEREOF, the parties hereto have entered into and executed this Agreement effective as of the date and year first written above. FOR THE CITY: FOR THE ENGINEER: By City Manager Na ri Jason Stoll Title: Principal Att t• City Clerk Legal Dept\Agreemcnt\Fehr Graham Agr-Dist Sytcm Eng-9-9-24.docx - I 0- ATTACHMENT A Task Order No. City of Elgin, Illinois(CITY) and Fehr Graham(ENGINEER) Pursuant to Agreement dated , 2024 Task Information Task Name: {Project Name) Task Description: {Project Description). Services Description: {Services Description) Scope of Services ENGINEER will provide the following services to the CITY: 1. {Detailed listing of task Scope of Services) Compensation The CITY shall compensate ENGINEER for Services under this Task Order on an hourly rate basis plus expenses an estimated fee of${ }. Schedule Services will begin upon execution of this Task Order,which is anticipated on Date { }. Services are scheduled for completion on Date { }. TASK ORDER AUTHORIZATION AND ACCEPTANCE: ENGINEER: CITY: Fehr Graham CITY OF ELGIN Jason T. Stoll Date Nora Bertram Date Principal Water Director