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11-45 1° Resolution No. 11-45 RESOLUTION AUTHORIZING EXECUTION OF A SECOND AMENDMENT AGREEMENT WITH MEADE ELECTRIC COMPANY, INC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Sean R. Stegall, City Manager be and is hereby authorized and directed to execute a second amendment agreement on behalf of the City of Elgin with Meade Electric Company,Inc. for traffic signal maintenance services,a copy of which is attached hereto and made a part hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: March 9, 2011 Adopted: March 9, 2011 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk SECOND AMENDMENT AGREEMENT THIS SECOND AMENDMENT AGREEMENT is hereby made and entered into this 9th day of March , 2011, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City") and Meade Electric Company, Inc., an Illinois corporation (hereinafter referred to as the "Contractor"). WHEREAS, the City and the Contractor have previously entered to an Agreement dated August 26, 2009, which Agreement was amended by an Amendment Agreement dated January 1, 2010 (hereinafter collectively referred to as the "Original Agreement"), copies of which are attached hereto and made a part hereof as Attachment A and Attachment B, respectively; WHEREAS, the City and the Contractor have agreed to extend the term of the Original Agreement for an additional year, through December 31, 2011; and WHEREAS, this Second Amendment Agreement is germane to the Original Agreement as signed; the provisions of this Second Amendment Agreement were not reasonably foreseeable at the time the Original Agreement was signed; and the terms of this Second Amendment Agreement are in the best interests of the City and are authorized by law. NOW, THEREFORE, in consideration of the mutual promises and covenants provided for herein, the receipt and sufficiency of which is mutually acknowledged, the parties hereto hereby agree as follows: 1. The above recitals are incorporated into and made a part of this Agreement as if fully recited herein. 2. The City shall pay to the Contractor the sum of Eighty Four Thousand Nine Hundred Thirty-Six and 00/100 Dollars ($84,936.00) for work performed by the Contractor during the term of this Second Amendment Agreement and as provided for at Article 4 of the Original Agreement. 3. Article 1 of the Original Agreement is hereby amended in its entirety to read as follows: "The Contractor shall complete the Work as specified in the Contract Documents. The Work is generally described as follows: Provide maintenance of tra*f*C signals at 56 intersections as set•f0ivl9 in the supplemental specifications, bid documents, Contract Documents and special provisions." 4. Article 3.1 of the Original Agreement is hereby amended in its entirety to read as follows: "3.1 Work Completion. The Work shall be completed as provided in the Contract Documents. The term of this Agreement shall expire on December 31, 2011." 5. Article 7(j) is hereby amended in its entirety to read as follows: "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, the Contractor 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, the Contractor hereby certifies, represents and warrants to the City that all of the Contractor'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. The Contractor 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 Contractor to determine the Contractor's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Contractor shall make available to the City the Contractor's relevant records at no cost to the City. The Contractor shall pay any and all costs associated with any such audit." 6. Article 7 of the Original Agreement is amended to add Article 7(k) as follows: "(k) Interest. Contractor hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, el seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.)." 7. Article 7 of the Original Agreement is amended to add Article 7(1) as follows: "(1) Limitation of Actions. Contractor shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates, officers, employees, agents, attorneys, boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. 8. Except as specifically amended by this Second Amendment Agreement, the terms and provisions of the Original Agreement shall remain in full force and effect. -2- 9. In the event of any conflict between the terms and provisions of this Second Amendment Agreement and the Original Agreement, the terms and provisions of this Second Amendment Agreement shall control. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Second Amendment Agreement as of the date and year first written above. CITY OF ELGIN: By: �( ` •'C! can Stegall, City M ger CONTRACTOR: Meade Electric Company, Inc By: Name/Print: /YJ,c/71/ 4- )' Title: y i« (O«fS i OF,V -3- ATTACHMENT A ORIGINAL AGREEMENT AGREEMENT THIS AGREEMENT is dated this 26th day of August , 2009 by and between the City of Elgin, an Illinois Municipal Corporation (herein called "City") and Meade Electric (herein called "Contractor"),a corporation with a principal place of business at 9550 W. 55`h Street, Suite A, McCook, IL. WHEREAS,on July 29, 2009 the City released an Invitation for Bids entitled 2009 Traffic Signal Maintenance;and WHEREAS,Contractor submitted a timely bid on August 12, 2009 and WHEREAS,the City Council has deemed Contractor to be the lowest price responsive and responsible bidder for 2009 Traffic Signal Maintenance,hereinafter referred to as"Work:" NOW THEREFORE, in consideration of the mutual covenants herein set forth, the sufficiency of which is hereby acknowledges,the parties hereto hereby agree as follows: Article 1. Work. Contractor shall complete the Work as specified in the Contract Documents. The Work is generally described as follows: Complete maintenance of traffic signals in 56 intersections under the jurisdiction of the City of Elgin Work, as set forth in the Supplemental Specifications, bid documents, contract,and special provisions. Article 2. ENGINEER. The Work has been designed by Dave Lawry ("Engineer"). Engineer shall act as City's representative and shall assume and provide such duties and obligations to the extent provided in the Contract Documents. Article 3. Work COMPLETION,LIQUIDATED DAMAGES, DELAYS AND DAMAGES. 3.1. Work Completion. The Work shall be completed as provided in the Contract Documents. [insert milestone dates here] In the event of any conflict between these dates and dates elsewhere in the Contract Documents,these dates shall prevail. Time is of the essence of this Agreement. 3.2. Liquidated Damages. City and Contractor agree that as reasonable liquidated damages for delay (but not as a penalty) Contractor shall pay City $500 for each day beyond the time specified for Substantial Completion in the Contract Documents. After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the remaining Work within the times specified in the Contract Documents (hereinafter referred to as "Contract Times") or any proper extension thereof granted by City, Contractor shall pay City$500 for each day beyond the time for Final Completion. Contractor agrees and acknowledges that such liquidated damages constitute a reasonable estimate of City's actual damages. Such liquidated damages shall constitute City's sole recourse for and shall constitute full satisfaction of City's actual damages resulting from Contractor's delay. Contractor further acknowledges and agrees that in the event any provisions in any of the Contract Documents conflict with the provisions of this paragraph or otherwise provide for damages resulting from Contractor's delay, the provisions of this paragraph shall control, and such conflicting provisions and any Contract Documents shall not constitute,and shall not be construed as, a basis by which to render the provisions of this paragraph unenforceable. - 1 - 3.3. Delays and Damages. In the event Contractor is delayed in the prosecution and completion of the Work or achievement of any Contract Times because of any delays caused by City or Engineer, Contractor shall have no claim against City or Engineer for damages or contract adjustment other than an extension of the Contract Times as provided herein and the waiving of liquidated damages during the period occasioned by the delay. Article 4. CONTRACT PRICE. City shall pay Contractor$ 84,9.36 as indicated in the Contractor's Bid for completion of the Work in accordance with the Contract Documents. Article 5. PAYMENTS. 5.1. Payments. City shall make payments on the basis of Contractor's Applications for Payment as recommended by Engineer, in conformance with the City of Elgin's accounts payable schedule. All payments shall be based on the progress of the Work measured by the schedules provided in the Contract Documents. Notwithstanding anything to the contrary in any Contract Documents, City shall be entitled to withhold any payments pending the submission of partial or full waivers of lien and/or certifications verifying the receipt of payment for all work performed by all subcontractors up to the date of Contractor's application for partial or final payment in City's sole discretion. City shall further be entitled to make such payments directly to any subcontractors as may be necessary to obtain such lien waivers and/or certifications. In the event City makes any such payments directly to any subcontractors,the amount of such payments shall be deducted from the total amount due to Contractor pursuant to this agreement; and Contractor shall provide a written release to City in the amount of any such payments upon ten (10) days written demand. Concurrent with all applications for payment, Contractor shall provide City with a sworn certification of all work performed by all subcontractors and amounts paid to all subcontractors as of the date of application. 5.2. Retainage. City may withhold, from all payments prior to Substantial Completion,an amount equal to up to ten percent(10%)of work completed,at City's sole discretion. Upon Substantial Completion, City may release a portion of the retainage to Contractor, retaining at all times an amount sufficient to cover the cost of the Work remaining to be completed,at City's sole discretion. The time for payment of any retainage from City to Contractor shall be at City's sole discretion. Such payment shall not be unreasonably withheld. 5.3. Final Payment. The City shall not be required to make final payment prior to completion and acceptance of the Work by the City. Article 6. CONTRACT DOCUMENTS. There are no Contract Documents other than those listed below. The Contract Documents which comprise the entire agreement between City and Contractor concerning the Work consist of the following: a. This Agreement. b. Certificates of Insurance. c. Bonds. d. Notice of Award. e. Notice to Proceed. f. General Conditions. g. Supplementary Conditions. h. Specifications. i. Drawings consisting of 0 sheets,with each sheet bearing one of the following general titles: N/A -2 - F:\Legal Dept\Agreement\City Contractor Agreement-2006.doc Sheet titles are listed on the cover sheet of each drawing set. j. Any Addenda. k. Contractor's Bid. 1. City Forms. m. Any subsequent Written Amendments to any documents listed above and other documents amending, modifying, or supplementing the Contract Documents, which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto. This Agreement and the Contract Documents listed above comprise the sole and exclusive Agreement between the parties hereto. There are no other agreements between the parties hereto either oral or written, and neither this Agreement nor any Contract Documents shall be modified or amended without the written consent of the authorized representatives of the parties hereto. Article 7. MISCELLANEOUS. a. Terms used in this Agreement shall have the meanings indicated in the General Conditions. b. No assignment or delegation by a party hereto of any rights under,obligations or interests in the Contract Documents shall be binding on another party hereto without the written consent of the party sought to be bound;and specifically but without limitation moneys that may become due and moneys that are due may not be assigned without such consent(except to the extent that the effect of this restriction may be limited by law); and unless specifically stated to the contrary in any written consent to an assignment, no assignment shall release or discharge the assignor from any duty or responsibility under the Contract Documents. c. City and Contractor each binds itself,its partners,successors,employees,assigns,and agents to the other party hereto, its partners, successors, employees, assigns, and agents in respect of all covenants, agreements,and obligations contained in the Contract Documents. d. The business address of Contractor is hereby designated as the place to which all notices,letters,and other communication to Contractor shall be mailed or delivered. The address of City is hereby designated as the place to which all notices, letters, and other communication to City shall be mailed or delivered. Such notices,letters and other communications shall be directed to the City's General Services Manager. Either party may change its address at any time by an instrument in writing delivered to Engineer and to the other party. e. The terms and provisions of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement shall be deemed to be void or otherwise unenforceable for any reason,the remainder of this Agreement shall remain in full force and effect. f. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes and the enforcement of any rights arising out of or in connection with the Agreement shall be in the Circuit Court of Kane County,Illinois. g. This Agreement shall not be construed so as to create a partnership,joint venture,employment or agency relationship between the parties hereto except as may be specifically provided for herein. h. In the event of any conflict between any of the terms or provisions of this Agreement and any other Contract Documents,the terms and provisions of this Agreement shall control. i. Indemnification. To the fullest extent permitted by law,Contractor agrees to and shall indemnify,defend and hold harmless the City, the Engineer, Engineer's consultants and the officers, employees, boards and commissions of each and any of them from and against any and all claims, suits, judgments, costs. attorneys' fees, damages or any and all other relief or liability arising out of or resulting from or through, or alleged to arise out of, any acts or negligent acts or omissions of Contractor or Contractor's officers, employees, agents or subcontractors in the performance of this agreement, or arising out of or in connection with litigation based on any mechanic's lien or other claims, suits,judgments and/or demands for damages by subcontractors. In the event of any action against the City.its officers,employees,agents, - 3 - boards or commissions covered by the foregoing duty to indemnify,defend and hold harmless,such action shall be defended by legal counsel of City's choosing. In the event and to the extent that any legal work is performed by City's in-house legal counsel pursuant to the provisions of this section, City shall be reimbursed by Contractor for such legal work at the rate of$200 per hour, which rate Contractor hereby agrees and acknowledges to be a reasonable rate for such in-house attorneys'fees. The provisions of this paragraph shall survive any expiration and/or termination of this agreement. j. Compliance with Laws. Notwithstanding any other provision of this CONTRACT it is expressly agreed and understood that in connection with the performance of this CONTRACT that the CONTRACTOR 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, CONTRACTOR hereby certifies, represents and warrants to the CITY that all CONTRACTOR'S employees and/or agents who will be providing products and/or services with respect to this CONTRACT shall be legal residents of the United States. CONTRACTOR 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 CONTRACT. The CITY shall have the right to audit any records in the possession or control of the CONTRACTOR to determine CONTRACTOR'S compliance with the provisions of this section. In the event the CITY proceeds with such an audit the CONTRACTOR shall make available to the CITY the CONTRACTOR'S relevant records at no cost to the CITY. IN WITNESS WHEREOF,City and Contractor have signed this Agreement. One counterpart each has been delivered to City,Contractor,Surety,and Engineer. This Agreement shall be effective on August 26, 2009 CITY OF ��1N: 4lia- Af) )/ (/ By: Sean R.Stegall Title: City Manager Address for giving notices City of Elgin 150 Dexter Court Elgin,IL 60120 CONTRACTOR:J4 • Meade Electric By: ,f//t``A , Title: 1//d % cjj) T Address for giving notices City of Elgin 150 Dexter Court Attn:Dave Lawry Elein.IL 60120 FEIN# -4 - F:\Legal Dept\Aereement\City Contractor Agreement-2006.doc ATTACHMENT B FIRST AMENDMENT AGREEMENT • AMENDMENT AGREEMENT This Amendment Agreement is made and entered into this 1st day of January 2010, by and between the City of Elgin, an Illinois municipal corporation (hereinafter called the "City") and Meade Electric, a corporation organized and existing under the laws of the State of Illinois (hereinafter called the "Contractor"). WHEREAS, the City and the Contractor have previously entered into an agreement relating to 2009 Traffic Signal Maintenance dated August 26, 2009 (hereinafter referred to as the "Subject Agreement"); and WHEREAS, the City and the Contractor have agreed to extend the term of the Subject Agreement for an additional year from January 1, 2010 through December 31, 2010. NOW, THEREFORE, for and in consideration of the mutual promises and covenants set forth in the Subject Agreement, and the mutual covenants as set forth in this Amendment Agreement, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. That the term of the Subject Agreement is hereby amended whereby an additional one (1) year term is added thereto from January 1, 2010 through December 31, 2010. 2. That except as specifically amended by this Amendment Agreement, the Subject Agreement shall remain in full force and effect. 3. That in the event of any conflict between the terms of this Amendment Agreement and the terms of the Subject Agreement, the terms of this Amendment Agreement shall supersede and control. IN WITNESS WHEREOF, the undersigned have entered into and executed this Amendment Agreement as of the date and year first written above. CITY OF EL CONTRACTO � Meade Electric Co. , Inc. By: %Wig- By: an R. Stegall Its Vice President City Manager Attest: City Clerk F:\Legal Dept\Agreement\Meade Electric Co-Amendment Agreement.doc 111 h Report to Mayor& Members of City Council E i..c I tJ (owTHE CITY IN THE SUBURBS MEETING DATE: January 26, 2011 INITIATIVE H: Meade Electric Traffic Signal Maintenance Agreement Extension COMMUNITY GOAL • A Safe Community OBJECTIVE • To maintain the city's traffic signals PURPOSE • To provide timely and effective traffic signal maintenance RECOMMENDATION • Approve a one year contract extension with Meade Electric for traffic signal maintenance BACKGROUND Since June 1, 2004, the city has contracted out the maintenance of traffic signals. This enabled the city's electrical division to focus its efforts on street light maintenance. This service delivery method provides a higher level of expertise and resources for the traffic signal maintenance, while allowing in-house staff to provide a higher level of responsiveness to street light maintenance. Since 2004, the city has contracted with Meade Electric and it has performed very well. Traffic signal maintenance has been completed in a proactive, timely manner and the contractor has addressed all maintenance issues that have been identified. In August 2009, the city council awarded the 2009 motor fuel tax traffic signal maintenance program agreement to Meade Electric Company for a period of September 2009 to December 2009. At that time, the Illinois Department of Transportation (IDOT) only allowed the city to enter into an agreement for the last four months of 2009. The bid award contract duration included two, one-year contract extensions starting January 1, 2010 for traffic signal maintenance services. The first one-year contract extension was exercised on January 13, 2010. Approval of the contract extension would exercise the city's second, of the two one-year contract extensions.The 2012 traffic signal maintenance program will be going out to bid. OPERATIONAL ANALYSIS4111) The agreement includes all routine maintenance required by IDOT standards on the 56 signalized intersections for one additional year, plus after-hours emergency response services for inoperative signals, two red lights out at same intersection, power failures and knocked down equipment due to traffic accidents. The specification requires the contractor to respond to the above emergencies. The contractor is not responsible for knockdown costs, they are reimbursed their actual material expenses or the city provides material from in-house stock.All work performed by Meade Electric will be inspected by Hampton Lenzini and Renwick (HLR). HLR is the city's traffic signal and street light system technical consultant. INTERESTED PERSONS CONTACTED None. FINANCIAL ANALYSIS Traffic signal maintenance is to be performed on 56 locations for a one-year period at a cost of $84,936. Sub-contracting the maintenance of traffic signals allows the city's electrical division to focus their efforts on street light maintenance and provides the city with a greater degree of expertise than would otherwise be available. BUDGET IMPACT FUND(S) ACCOUNT(S) PROJECT#(S) AMOUNT AMOUNT BUDGETED AVAILABLE Motor Fuel 290-0000-791.41-07 340009 $369,320 $369,320 Tax LEGAL IMPACT None. ALTERNATIVE COURSES OF ACTION The city council may choose to reject the extension of the existing agreement with Meade Electric for traffic signal maintenance. NEXT STEPS 1. The contractor must sign the agreement extension 4) fih 1 • r Prepared by: Dan Ault, Management Analyst Reviewed by: Colleen Lavery, Chief Financial Officer Reviewed by: William A. Cogley, Corporation Counsel/Chief Development Officer Final Review by: Richard G. Kozal,Assistant City Manager/Chief Operating Officer Approved by: S-!n R. Stegall, City Manag-i ATTACHMENTS None. r JL , . 11, E LG I IBJ THE CITY IN THE SUBURBS- DATE: March 25, 2011 TO: Dan Ault, Management Analyst and Organizational Development Coordinator FROM: Jennifer Quinton, Deputy City Clerk SUBJECT: Resolution No. 11-45, Adopted at the March 9, 2011, Council Meeting Enclosed you will find the agreement listed below. Please distribute this agreement to the other party and keep a copy for your records if you wish. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you. • Second Amendment Agreement with Meade Electric Company, Inc.