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08-209 Resolution No. 08-209 RESOLUTION AUTHORIZING EXECUTION OF AMENDMENT NO. 1 TO AGREEMENT WITH TRANSYSTEMS CORPORATION FOR GRANT WRITING SERVICES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Olufemi Folarin,City Manager,and Diane Robertson,City Clerk,be and are hereby authorized and directed to execute Amendment No. 1 to Agreement with TranSystems Corporation on behalf of the City of Elgin for grant writing services,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: September 10, 2008 Adopted: September 10, 2008 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk • FIRST AMENDMENT AGREEMENT HI FI•ST AMENDMENT AGREEMENT is hereby made and entered into this 16+1\ day of II , 2008, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and TranSystems Corporation, a Missouri corporation (hereinafter referred to as "ENGINEER"). WHEREAS, the parties hereto have previously entered into an agreement dated August 23, 2006, a copy of which is attached hereto and made a part hereof as Attachment "A" (hereinafter referred to as "Original Agreement"); and WHEREAS, the parties hereto have each determined it to be in their best interests to amend Original Agreement in order to extend the term of Original Agreement for an additional two (2) years under the same terms and conditions; and WHEREAS, the circumstances necessitating the changes contemplated by this First Amendment Agreement are germane to the Original Agreement as signed and this First Amendment Agreement is in the best interests of the City and is authorized by law. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. The above recitals are hereby incorporated into and made a part of this agreement. 2. Section 5 of Original Agreement, entitled "Intentionally Omitted" is hereby amended in its entirety to read as follows: "NON-EXCLUSIVITY This agreement shall not be exclusive. City may enter into any agreements with any other entity regarding the subject matter hereof at any time and for any reason without liability to ENGINEER." 3. Section 7 of Original Agreement, entitled "Term" is hereby amended in its entirety to read as follows: "TERM This agreement shall terminate on August 31, 2010." 4. Section 20 of Original Agreement, entitled "Modification or Amendment" is hereby amended in its entirety to read as follows: "SOLE AGREEMENT This agreement and its attachments constitutes the entire and sole agreement of the parties hereto regarding the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties hereto. There are no other agreements, either oral or implied, regarding the subject matter hereof. No representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed written amendment hereof, or written change order as herein provided." 5. The remainder of Original Agreement shall remain in full force and effect. CITY EL I TRANSYSTEMS CORPORATION By , _ By __ _ City Ma i ager � Attest: Attest: V #;:y City Clerk F:\Legal Dept\Agreement\TranSystems-First Amendment Agr.doc Attachment"A" AGREEMENT THIS AGREEMENT is made and entered into this 9,i/ 6 day of A u G<< 1- 2006, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY" ) and TranSystems Corporation, an Illinois corporation (hereinafter referred to as "ENGINEER" ) . WHEREAS, the CITY desires to engage the ENGINEER to furnish certain professional services for a grant writer program co apply on behalf of the City of Elgin for grants from various agencies for projects in the City of Elgin' s approved five-year capital plan (hereinafter referred to as the PROJECT) . AND WHEREAS, the ENGINEER represents that he 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, for an in consideration of the mutual undertaking as contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the CITY does hereby retain the ENGINEER to act for and represent the CITY in the 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 Director of Public Works of the CITY, hereinafter referred to as the "DIRECTOR" . B. The ENGINEER shall provide the grant administration consultive services for the CITY as described in Exhibit A attached hereto entitled "Scope of Services City of Elgin Grant Writer Program-Capital Improvements Projects" a copy of which is attached hereto and incorporated herein by this reference . 2 . SCHEDULE The ENGINEER shall provide the services outlined in Exhibit A within a two-year time frame following the entry into and execution of this Agreement. The ENGINEER shall submit to the DIRECTOR status reports every ninety (90) days providing a brief progress report identifying progress, findings and outstanding issues. Attachment"A" 3 . WORK PRODUCTS All work products prepared by the ENGINEER pursuant hereto including, but not limited to, applications, reports, 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. 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 . COMPENSATION TO THE ENGINEER As compensation for the performance of the described services the CITY agrees to select the ENGINEER to perform the planning, designing, construction engineering services for any project for which outside funding is secured as a result of the ENGINEER ' s grant writing services . The form of any such future agreements between the CITY and the ENGINEER shall be as substantially set forth in this Agreement . Compensation to the ENGINEER in any such future agreements is to be negotiated as part of such a separate agreement and such separate agreements are subject to the parties agreeing on reasonable compensation to the ENGINEER. The fiscal year of the CITY is the twelve month period ending December 31 . The obligations of the CITY to proceed with any project for which outside funding is secured as a result of the ENGINEER's grant writing services or to proceed with any agreement with the ENGINEER in connection with any such project are subject to and contingent upon the appropriation of funds by the city council of the City of Elgin for any such projects and for any such related agreements with the ENGINEER for such projects. 5 . INTENTIONALLY OMITTED 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. 7 . TERM This Agreement shall have a two year term commencing from the entry into and execution of this Agreement . 8 . INTENTIONALLY OMITTED - 2 - Attachment"A" 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, no action shall be commenced by the ENGINEER against the CITY for monetary damages . 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 paragraph shall survive any completion, expiration and/or termination of this agreement . 11. NO PERSONAL LIABILITY No official, director, officer, agent or employee of the CITY shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement . 12 . INSURANCE 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. - 3 - Attachment"A" The ENGINEER shall deliver to the DIRECTOR a Certification of Insurance naming the CITY as additional insured. The policy shall not he 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 . INTENTIONALLY OMITTED 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, - 4 - Attachment"A" rates of pay or other forms of compensation and selection for training, including apprenticeship. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the CITY. 15 . ASSIGNMENT AND SUCCESSORS This Agreement and each and every portion thereof shall be binding upon the successors and the assigns of the parties hereto; provided, however, that no assignment shall be made without the prior written consent of the CITY. 16 . DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the ENGINEER shall remain liable to the CITY with respect to each and every item, condition and other provision hereof to the same extent that the ENGINEER would have been obligated if it had done the work itself and no assignment, delegation or subcontract had been made. Any proposed subcontractor shall require the CITY ' s advanced written approval . 17 . NO CO-PARTNERSHIP OR AGENCY This agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. 18 . SEVERABILITY The parties intend and agreed that, if any 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 - 5 - Attachment"A" 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 he binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof, or change order as herein provided. 21. APPLICABLE LAW This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois . Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois . 22 . NEWS RELEASES The ENGINEER may not issue any news releases without prior approval from the DIRECTOR, nor will the ENGINEER make public proposals developed under this Agreement without prior written approval from the DIRECTOR prior to said documentation becoming matters of public record. 23 . COOPERATION WITH OTHER CONSULTANTS The ENGINEER shall cooperate with any other consultants in the CITY' S employ or any work associated with the PROJECT. 24. INTERFERENCE WITH PUBLIC CONTRACTING The ENGINEER certifies hereby that it is not barred from bidding on this contract as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 25. SEXUAL HARASSMENT As a condition of this contract, the ENGINEER shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; - 6 - Attachment"A" • 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 cf 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 must be provided to the Department of Human Rights upon request 775 ILCS 5/2-105 . 26 . 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 . 27 . 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 : JOHN LOETE, P.E. Director of Public Works City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B . As to ENGINEER: BRIAN L. FAIRWOOD Assistant Vice-President TranSystems . !Porati - 7 - Attachment"A" IN WITNESS WHEREOF, the undersigned ha,,e pla,.:ed their hands arid seals upon and exe,:uted this Agrement in triplicate as Lhduh ,i,achcopy hereof was ci original and th,=.s,t there are no other oud agreements that have not bec;n reduced to writing in this stater.'.en',-. . FOP THE CITY : FOR THE ENGINEER: BY By (il uy Haner At test : —41 City Clerk F \Legal Dept\Agreement\Engineering Agreelenr-TranSyst,ms.doc - 8 - Attachment"A" Exhibit A - Scope of Services City of Elgin Grant Writer Program - Capital Improvement Projects Scope of Engineering Services We offer the following detailed scope of grant administration consultant services based on our understanding of the RFP,the pre-proposal meeting with City staff,and our recent experience on similar services. 1. Program Coordination A. Work with the City to compile a list of infrastructure projects within the City's Capital Improvement Program on which to submit application. The list will also include projects not yet funded. B. Review the following list of funding sources and other funding sources, as identified, to identify funding opportunities on specific projects. Funding Source Funding Type Submit To FHWA Surface Transportation Program (STP) KCCOM SAFETEA-LU FHWA Transportation Control Measures (TCM) KCCOM SAFETEA-LU FHWA Congestion Mitigation &Air Quality(CMAQ) CATS SAFETEA-LU FHWA Transportation Enhancement Program (TEP) IDOT SAFETEA-LU FHWA Highway Bridge Rehabilitation &Replacement IDOT SAFETEA-LU Program (HBRRP) FHWA Highway Safety Improvement Program IDOT SAFETEA-LU IDNR Bikeway IDNR IDOT Illinois Tomorrow Corridor Planning Grant CATS Program IDOT Economic Development Access and IDOT Interchange Improvements IDOT Operation Green Light Transit Access (OGL) IDOT Exhibit A-i Attachment"A" • Exhibit A - Scope of Services City of Elgin Grant Writer Program - Capital Improvement Projects C. Review the following list of funding sources and other funding sources, as identified by the Parks and Recreation Department, to identify funding opportunities on specific projects. • 21st Century Community Learning Center Program • Arthur B. Schultz Foundation • Artstour - Illinois Arts Council • Baseball Tomorrow • Boat Access - IDNR • Boating Infrastructure - IDNR • Clean Vessel - IDNR • Conservation 2000 Eco System - IDNR • Conservation 2000 Sustainable Agriculture Grant Program • Doris Duke Charitable Foundation • Eastman Kodak American Greenways Awards • Environmental Education Grants - US Environmental Protection Agency • Freedom Gardens • Illinois Clean Energy Community Foundation Grants • Illinois Clean Lakes - IDNR • Illinois Schoolyard,Habitat Action Grant - IDNR • Illinois Wildlife Preservation Fund - IDNR • Laird Norton Endowment Foundation • Land &Water Conservation Fund • Local Government Snowmobile • National 4-H Council -2003 Healthy Lifestyles Grant • • National 4-H Council -2003 Feeding the Hungry Grant • National 4-H Council - Youth in Action/Community Tree Planting Grant • National Gardening Assoc. Youth Garden Grant • National Tree Trust • Northeastern Illinois Wetlands Conservation Account • Off Highway Recreation Trails • Open Land Trust • Open Space Lands Acquisition Trust • Outreach & Education Components - Ill. Dept. of Agriculture • Partners for Fish and Wildlife • Priority Lake and Watershed Implementation Program: - IEPA • Public Museum Capitol Grants • Public Museum Operating Grants • Recreation Trails Program • Rothman Family Foundation • Section 1135 Project Modifications for the Improvement of the Environment • Section 206 Aquatic Ecosystem Restoration • Short Tenn Artists Residency(S.T.A.R) - Illinois Arts Council • Small Projects Fund—IDNR • Sustainable Development Challenge & Small Grant Programs for Communities • Wildlife Conservation - IDNR Exhibit A-ii _---- -�� • Attachment"A" Exhibit A - Scope of Services City of Elgin Grant Writer Program - Capital Improvement Projects D. Prepare an annual funding chart and overall funding chart for funding opportunities available to the City. E. Meet with the City to present the funding charts. Based on comments received, a follow-up meeting will be held to discuss the final Funding Management Assistance Packet. F. Provide on-call consultation with the City to attend meetings or make presentations on funding-related issues. 2. Funding Application Preparation A. Prepare new funding applications and submit to funding agencies. B. The City will provide the Consultant with the following information needed for the applications that TranSystems will prepare: 1. Location maps including electronic aerial maps 2. CADD files and topography database 3. Existing and projected hourly and daily traffic volumes 4. Letters of support C. Meet with City prior to submitting funding applications to discuss scope,participating agencies, costs, application requirements and schedule. D. Provide follow-up coordination with City and funding agencies to respond to comments during the selection process. Exhibit A-iii