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HomeMy WebLinkAbout26-94 Resolution No. 26-94 RESOLUTION AUTHORIZING EXECUTION OF A FIRST AMENDMENT AGREEMENT WITH ATI RESTORATION, LLC FOR ADDITIONAL PROFESSIONAL SERVICES IN CONNECTION WITH THE CLEANUP OF CERTAIN PROPERTY COMMONLY KNOWN AS "TENT CITY" BE IT 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 First Amendment Agreement on behalf of the City of Elgin with ATI Restoration, LLC, for additional professional services in connection with the cleanup of certain property commonly known as "Tent City", a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: May 27, 2026 Adopted: May 27, 2026 Vote: Yeas: 9 Nays: 0 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk FIRST AMENDMENT AGREEMENT THIS FIRST AMENDMENT AGREEMENT ("First Amendment Agreement") is made and entered into this 27th day of May , 2026, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "City") and ATI Restoration, LLC, a Delaware limited liability company authorized to do business in the State of Illinois (hereinafter referred to as"Consultant"). WHEREAS, the Fox River Water Reclamation District (the "District") owns certain real property commonly known as 571 Frazier Avenue, Elgin, Illinois 60123, identified by the County of Kane as Parcel Number 06-11-331-002, and improved with a water reclamation facility and related public infrastructure(the "District Property"); and WHEREAS, the City owns certain real property located south of and adjacent to the District Property,commonly known as 375-565 North State Street,Elgin. Illinois 60123,identified by the County of Kane as Parcel Numbers 06-14-203-003 and 06-14-203-006, and commonly referred to by the Parties as the former"Tent City"property (the"City Property"); and WHEREAS,the City Property and the District Property are adjacent to one another and to other critical public infrastructure, and the City and the District desire and have agreed to coordinate additional debris removal, tree removal, fencing, and related site clean-up work on portions of the City Property and the District Property; and WHEREAS, the City and Consultant previously entered into an agreement, dated January 8, 2025 (hereinafter referred to as the "Original Agreement"), whereby the City engaged Consultant to furnish certain professional services in connection with the cleanup of the City Property (hereinafter referred to as the"Project");and WHEREAS, the City and Consultant have agreed to expand the scope of the work for the Project to include such additional debris removal, tree removal, fencing, and related site clean-up work on portions of the City Property and the District Property, as provided for herein and as outlined and described in Consultant's Scope Letter, dated May 19, 2026, and consisting of five (5)pages,attached hereto as Attachment A-1 and incorporated herein by this reference(hereinafter referred to as"Supplemental Services"). NOW,THEREFORE, it is hereby agreed by and between the City and the Consultant that, for and in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged, the City does hereby retain the Consultant to perform the Supplemental Services relating to the Project as described herein, subject to the following terms and conditions and stipulations,to-wit: 1. The above recitals are incorporated into and made a part of this First Amendment Agreement as if fully recited hereby. 1 2. Section 1 of the Original Agreement is hereby further amended by adding a new subparagraph E thereto,to read as follows: "E. The CONSULTANT shall provide the Supplemental Services for the PROJECT provided for in the First Amendment Agreement between the CONSULTANT and the CITY, said Supplemental Services to include additional debris removal,tree removal,fencing,and related clean-up work, as outlined and described in CONSULTANT'S Scope Letter, dated May 19,2026,and consisting of five(5)pages, attached to the First Amendment Agreement as Attachment A-1 and incorporated herein by this reference (referred to herein as the"Supplemental Services")." 3. Payments to the Consultant for the Supplemental Services shall be made in accordance with paragraph 4 of the Original Agreement. As set forth in Attachment A-1, the estimated cost of the Supplemental Services is Three Hundred Seventy-Five Thousand Dollars ($375,000), said amount being within the total not-to-exceed amount of Two Million Five Hundred Thousand Dollars($2,500,000)set forth in subparagraph 4.A of the Original Agreement. 4. Consultant and City agree that the Supplemental Services provided for in this First Amendment Agreement shall be subject to and shall be performed in accordance with the additional terms and requirements set forth in Attachment B-1, attached hereto and incorporated herein by this reference(the"Required ATI Terms"). 5. That in the event of any conflict between the terms of this First Amendment Agreement and the Original Agreement, the terms of this First Amendment Agreement shall supersede and control. 6. That except as amended in this First Amendment Agreement,the Original Agreement shall remain in full force and effect. 7. That the changes provided for in this First Amendment Agreement are germane to the Original Agreement as signed, and this First Amendment Agreement is in the best interest of the City and authorized by law. 8. This First Amendment 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 First Amendment Agreement may be executed electronically, and any signed copy of this First Amendment 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 First Amendment 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. SIGNATURE PAGE FOLLOWS 2 IN WITNESS WHEREOF, the undersigned have entered into this First Amendment Agreement on the date near first written above. City OF ELGIN ATI RESTORATION, LLC 13)(a0 . y( gy: Adam V Fiala City Manager Its: Executive Project Director ATTEST: City Clerk Legal Dept\Agreement\A'TI Restoration First Amend Agr-FRWRI)Property Clean-up-Tent City-5-20-26 docx 3 ATTACHMENT A-1 ATI RESTORATION SCOPE LETTER, DATED MAY 19, 2026, CONSISTING OF FIVE (5) PAGES (To Be Inserted) ATTACHMENT B-1 REQUIRED ATI TERMS The City shall require the ATI Agreement to include the following terms, or substantially equivalent terms approved in writing by the District,for all District Work: 1. District as Intended Beneficiary.ATI acknowledges that the District is an intended third- party beneficiary of the ATI Agreement and these Required ATI Terms with respect to the District Work. The District may enforce these Required ATI Terms directly against ATI to the extent necessary to protect the District Property, District operations, District infrastructure, public safety, public funds, and the District's rights under the Agreement. ATI shall have no direct payment claim against the District except as expressly provided in Section 14 of this Exhibit B. 2. Scope; Standard of Performance. ATI shall perform the District Work in a good, workmanlike, safe, and lawful manner, using properly trained and supervised personnel, appropriate equipment, and materials of suitable quality. ATI shall perform the District Work in accordance with the ATI Agreement, approved scope documents, approved change orders, applicable permits, applicable laws, industry standards for similar work, and directions issued by the City that are not inconsistent with District-approved access, security, and operational requirements. ATI shall not perform District Work outside approved limits of work, remove trees not approved for removal, alter fencing alignment, install gates or access points,disturb District infrastructure,or use District utilities without prior written approval by the District. 3. Access; Security; District Operations. ATI shall coordinate access to the District Property with the City and the District before commencing District Work. ATI shall comply with all District access, sign-in, safety, parking, staging, site-security, utility, facility-access,and operational requirements communicated to ATI.ATI shall not interfere with District operations, District personnel, District contractors, public infrastructure, access roads, treatment facilities, utility infrastructure, security systems, or emergency access.ATI shall promptly notify the City and the District of any condition that may affect District operations, safety, infrastructure,utilities, fencing,access,or security. 4. Site Conditions; No Warranty by City or District. ATI acknowledges that it is performing District Work on existing public property and accepts the District Property in its existing condition for purposes of performing the District Work. Neither the City nor the District makes any representation or warranty to ATI or any subcontractor concerning the physical, environmental, subsurface, geotechnical, structural, utility, access, safety, quantity, cost, or other condition of the District Property. ATI shall not assert any claim against the District based on alleged reliance on site conditions, completeness of the ATI Scope Letter, quantities of debris or vegetation, availability of utilities, ease of access, subsurface conditions, unknown obstructions, environmental conditions, or the means, methods,cost,or duration of performing the District Work,except to the extent caused by the District's fraud, intentional misrepresentation, or willful concealment. If ATI encounters an unforeseen or unsafe condition, suspected asbestos-containing material, B-1 hazardous material, regulated waste, contaminated soil, underground structure, unknown utility, or other condition that may materially affect safety, cost, schedule, legal compliance, or the scope of the District Work, ATI shall stop affected work, secure the area,avoid further disturbance,and immediately notify the City and the District. ATI shall not disturb,remove,transport,dispose of,or remediate such condition unless authorized in writing and legally permitted to do so. 5. Hazardous Materials; Disposal. ATI shall comply with all applicable federal, state, and local laws,regulations,and permit requirements concerning hazardous materials,regulated waste,asbestos-containing material,contaminated soil,universal waste,solid waste,debris handling,transportation,and disposal. ATI shall be solely responsible for lawful handling, loading,transportation,recycling,disposal,and documentation of debris,trees,vegetation, waste, and materials removed by ATI from the District Property, except for pre-existing environmental conditions for which applicable law imposes responsibility on the District and which are not caused or exacerbated by ATI or its subcontractors. ATI shall provide disposal tickets,manifests,recycling records,landfill receipts,transporter information,and other documentation reasonably requested by the City or the District to verify lawful removal and disposal of materials from the District Property. 6. Safety; OSHA; Means and Methods. ATI shall be solely responsible for construction means, methods, techniques, sequences, procedures, supervision, site safety, job hazard analysis,personal protective equipment,employee training,equipment operation,traffic or access control within the work area, and compliance with OSHA and other applicable safety requirements. ATI shall hold and document safety meetings as appropriate for the District Work and shall maintain required safety records at or for the project site.ATI shall promptly report to the City and the District any injury, property damage, utility strike, environmental incident, fire, security incident, or other material safety event occurring on or affecting the District Property. 7. Insurance. a. Before commencing District Work,ATI shall provide certificates of insurance and endorsements evidencing insurance coverage acceptable to the City and District. Unless the District approves different limits in writing, ATI shall maintain at least the following coverage: (a) Commercial General Liability insurance, including premises/operations, products-completed operations, contractual liability, independent contractors,and explosion,collapse,and underground coverage where applicable, with limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate; (b) Automobile Liability insurance covering owned, hired, and non- owned vehicles with limits of not less than $1,000,000 combined single limit; (c) Workers' Compensation insurance as required by law and Employer's Liability insurance with limits of not less than$1,000,000 each accident,each employee,and policy limit; (d)Umbrella or Excess Liability insurance with limits of not less than $5,000,000 per occurrence and aggregate;and(e)Pollution Liability or Contractors Pollution Liability insurance, if any District Work involves hazardous materials, B-2 regulated waste, asbestos-containing material, contaminated soil, or similar environmental exposure,with limits acceptable to the City and District. b. The District, the City, and their respective officers, officials, employees, agents, attorneys, and representatives shall be named as additional insureds on ATI's commercial general liability, automobile liability, umbrella or excess liability, and any other policy for which additional insured status is commercially available and applicable to the District Work. Such coverage shall be primary and noncontributory to any insurance or self-insurance maintained by the District or the City. c. ATI and its insurers shall waive subrogation against the District,the City,and their respective officers, officials, employees, agents, attorneys, and representatives to the extent permitted by law. ATI shall maintain completed-operations coverage for not less than three(3)years after completion of the District Work.ATI shall provide not less than thirty (30) days' prior written notice of cancellation or material reduction in coverage,or such notice as is available under the applicable policy. 8. Indemnification by ATI. a. 1"o the fullest extent permitted by law, ATI shall defend, indemnify, and hold harmless the District, the City, and their respective trustees, officers, officials, employees, agents, attorneys, consultants, and representatives (collectively, the "Indemnified Parties") from and against any and all claims, demands, actions, causes of action, liabilities, damages, fines, penalties, liens, losses, costs, and expenses, including reasonable attorneys' fees and defense costs (collectively, "Claims"), arising out of, resulting from, or relating to: (i) the District Work; (ii) the acts or omissions of ATI, ATI's subcontractors, anyone directly or indirectly employed by them,or anyone for whose acts they may be liable;(iii)bodily injury, sickness,disease,or death; (iv) injury to, destruction of,or loss of use of property; (v) defective, incomplete, or nonconforming work; (vi) failure to pay subcontractors, suppliers, laborers, materialmen, or other persons performing or furnishing labor, materials, equipment, or services for the District Work; (vii) any lien,payment,bond,stop-payment,or similar claim arising from the District Work; (viii) violation of applicable law, permit requirements, safety requirements, environmental requirements, or disposal requirements; (ix) improper handling, transportation, storage, or disposal of debris, waste, regulated materials, or other materials removed from the District Property; (x) environmental contamination, release, migration, exacerbation, or disposal caused or exacerbated by ATI, ATI's subcontractors, or anyone directly or indirectly employed by them; (xi)damage to District infrastructure, City property, utilities, access roads, fencing, gates, equipment, or other property; or (xii) breach of the ATI Agreement or these Required ATI Terms. b. ATI's duty to defend shall arise upon tender of a Claim by an Indemnified Party and shall not be excused, reduced, or delayed based upon allegations that an B-3 Indemnified Party was negligent, at fault, or otherwise contributed to the Claim, unless and only to the extent it is established by a final, non-appealable judgment or order of a court of competent jurisdiction that the negligence,willful and wanton misconduct, intentional misconduct, breach of this Agreement, or violation of law by that Indemnified Party was a proximate cause of the Claim.Notwithstanding the foregoing, ATI shall not be required to indemnify an Indemnified Party for that portion of a Claim, if any, finally determined by a final, non-appealable judgment or order of a court of competent jurisdiction to have been proximately caused by that Indemnified Parry's own negligence, willful and wanton misconduct, intentional misconduct, breach of this Agreement, or violation of law. Nothing in this Section shall be construed to require indemnification prohibited by applicable law. c. ATI shall provide the defense through counsel reasonably acceptable to the tendering Indemnified Party. If a Claim includes both covered and allegedly non- covered allegations, ATI shall defend the Claim subject to later allocation, reimbursement,or adjustment only to the extent required by a final,non-appealable judgment or order of a court of competent jurisdiction or by written agreement of ATI and the affected Indemnified Party. The Indemnified Party may participate in the defense with its own counsel at its own expense, except that ATI shall be responsible for such counsel's reasonable fees and costs to the extent caused by ATI's failure to provide an adequate defense, a conflict of interest,or another basis recognized by law. d. No Limitation by Insurance or Other Laws. ATI's indemnity and defense obligations shall not be limited by insurance coverage, deductibles, self-insured retentions, policy exclusions, available limits, workers' compensation laws, disability benefit laws,or other employee-benefit laws. ATI expressly waives,and shall require each subcontractor performing any portion of the District Work to waive, any limitation on contribution or indemnity liability arising under Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991),or any similar or successor law, rule, doctrine, or defense. ATI agrees that its obligations under this Section shall not be limited to the amount of workers' compensation benefits paid or payable to or on behalf of any employee of ATI, any subcontractor, or anyone directly or indirectly employed by them. ATI's obligations under this Section shall not be limited by, and shall be excluded from, any limitation of liability, limitation of claims against the District, waiver of consequential damages, or similar limitation contained in the ATI Agreement or these Required ATI Terms. 9. Subcontractors; Flow-Down. ATI shall be responsible for the acts and omissions of its subcontractors, suppliers, consultants, employees, agents, and anyone else performing or furnishing any portion of the District Work. ATI shall require each subcontractor performing District Work to comply with all applicable provisions of the ATI Agreement and these Required ATI Terms, including insurance, safety, indemnity, site-condition, environmental, records, lien-waiver, prevailing-wage,and confidentiality obligations. B-4 10. Lien Waivers; Payment of Subcontractors and Suppliers. ATI shall promptly pay all subcontractors, suppliers, laborers, vendors, and other persons or entities furnishing labor, materials, equipment, or services for the District Work. ATI shall provide conditional and final lien waivers, releases, sworn statements, or similar payment documentation reasonably requested by the City or the District. ATI shall keep the District Property free from liens,lien claims,stop notices,payment claims,or similar encumbrances arising from the District Work. If any such claim is asserted, ATI shall promptly discharge, bond over, satisfy,or otherwise resolve the claim at no cost to the District. 11. Pricing; Cost Documentation. ATI shall maintain complete and accurate records supporting all charges for District Work, including labor time, labor classifications, rates, equipment descriptions, equipment rates and usage, materials, subcontractor charges, disposal fees, trucking, permits, and approved change orders. ATI shall provide backup documentation sufficient for the City and District to verify that charges are actual, reasonable, allocable to the District Work, and consistent with the ATI Agreement. ATI shall separately identify, or provide information sufficient to allocate, charges for City Work and District Work. Charges not reasonably allocable to District Work shall not be included in the District reimbursement request. 12. Change Orders.No change order,additional work,expanded scope,material substitution, schedule acceleration, emergency work, or other change affecting the District Work, District Property, District operations, District infrastructure, or District reimbursement obligation shall be performed or charged to the District unless approved in writing by the City and the District before the work is performed, except for minimum emergency stabilization work necessary to protect persons, property, public health, public safety, or the environment. Emergency work shall be limited to the minimum reasonable action necessary to stabilize the condition. ATI shall notify the City and the District as soon as practicable and shall provide detailed documentation of the emergency condition, action taken,personnel,equipment,materials,and costs. 13. Warranty; Correction of Work. a. ATI shall warrant the District Work for not less than one(1)year after the District's written confirmation of completion, or for any longer period provided by manufacturer warranties,the ATI Agreement,or applicable law.The warranty shall cover workmanship, materials furnished by ATI, fencing installation, site restoration, damage caused by ATI, and failure to perform the District Work in accordance with the ATI Agreement and these Required ATI Terms. b. Upon written notice from the City or the District during the warranty period, ATI shall promptly correct, repair, replace, or complete, at no additional cost to the District, any District Work that is materially defective, incomplete, damaged, nonconforming, or performed contrary to the ATI Agreement, approved change orders,applicable law, or these Required ATI Terms. B-5 c. ATI's warranty shall not make ATI responsible for ordinary wear and tear, vandalism,damage caused by third parties, pre-existing conditions,environmental conditions not caused or exacerbated by ATI, vegetation regrowth, or conditions outside ATI's scope, except to the extent such condition results from ATI's defective work, damage, breach,or failure to comply with applicable law. 14. No Consequential Damages; Limitation of Claims Against District. a. ATI and its subcontractors shall not seek or recover from the District any consequential, incidental, indirect, special, exemplary,or punitive damages arising out of or relating to the District Work, the District Property, this Agreement, the ATI Agreement, or the Project Work, including lost profits, loss of revenue, loss of use, loss of financing, loss of opportunity, home-office overhead, business interruption, or delay-related consequential damages. b. The District shall have no direct payment obligation to ATI or any subcontractor. To the maximum extent permitted by law, ATI's and its subcontractors' aggregate recovery from the District, if any,arising out of or relating to the District Work,the District Property, this Agreement, the ATI Agreement, or the Project Work shall not exceed the lesser of: (a)the unpaid,undisputed portion of the City-ATI contract amount properly allocable to District Work that was performed in accordance with the ATI Agreement and accepted by the City and District;or(b)the unpaid portion of the District's reimbursement obligation to the City for such District Work under the Agreement c. The limitation in this Section applies regardless of theory of liability, including contract, quasi-contract, tort, negligence, strict liability, statute, equity, or otherwise. The limitation shall not expand the District's obligations,create a direct contract between ATI and the District, create a direct payment obligation by the District to ATI, or limit any claim ATI may have against the City under the ATI Agreement. d. The limitation in this Section is solely a limitation on claims against the District. It shall not limit ATI's obligations or liability to the City or the District for indemnification, insurance, additional insured coverage, waiver of subrogation, correction of work, lien claims, payment of subcontractors or suppliers, records, FOIA compliance, prevailing-wage compliance, environmental compliance, disposal obligations,fraud,intentional misconduct,willful and wanton misconduct, violation of law, bodily injury, death, property damage, or damage to District or City property caused by ATI or its subcontractors. 15. Records; FOIA; Audit Cooperation. ATI shall maintain records relating to the District Work and Project Costs for not less than five (5) years after final payment, or longer if required by law or if a claim,audit,dispute,litigation,investigation,public records request, or insurance matter is pending. ATI shall provide records reasonably requested by the City or District to verify costs, evaluate work, respond to claims, process audits, respond to B-6 requests under the Illinois Freedom of Information Act, or enforce the ATI Agreement or these Required ATI Terms. ATI acknowledges that records relating to the District Work may be public records subject to disclosure under the Illinois Freedom of Information Act. ATI shall cooperate with the City and District in responding to lawful requests for records, subject to applicable exemptions, privileges, confidentiality protections, and lawful redactions. 16. Prevailing Wage and Public Contract Compliance. To the extent applicable to the District Work,ATI shall comply \v ith the Illinois Prevailing Wage Act,820 ILCS 130/0.01 et seq., including payment of applicable prevailing wages, submission of certified payroll, and retention of payroll records. ATI shall comply with all other federal, state, and local public-contracting requirements applicable to the District Work. 17. Survival.The provisions of these Required ATI Terms that by their nature should survive completion or termination shall survive, including indemnification, insurance, additional insured coverage, completed operations, waiver of subrogation, site-condition acknowledgments, hazardous-materials obligations, warranty and correction obligations, lien-waiver obligations, records, FOIA, audit cooperation, limitation of claims against the District,and compliance obligations. B-7