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12-11Resolution No. 12 -11 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH DLA ARCHITECT'S, L'I'D. FOR RENOVATIONS TO THE EAST SIDE RECREATION CENTER 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 TI`IE CITY OF ELGIN, ILLINOIS, that Sean R. Stegall, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with DLA Architects, Ltd. for renovations to the East Side Recreation Center, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: January 11, 2012 Adopted: January 11, 2012 Vote: Yeas: 5 Nays: 1 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT is made and entered into this I Iday of January, 2012, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY ") and DLA Architects, LTD, an Illinois Corporation (hereinafter referred to as "ARCHITECT "). WHEREAS, the CITY desires to engage the ARCHITECT to furnish certain professional services in connection with renovations to the East Side Recreation Center in association with the PARC Grant, (hereinafter referred to as the PROJECT); and WHEREAS, the ARCHITECT 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, it is hereby agreed by and between the CITY and the ARCHITECT that the CITY does hereby retain the ARCHITECT 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 ARCHITECTURAL matters involved in the PROJECT as described herein, subject to the following terms and conditions and stipulations, to -wit: 11 SCOPE OF SERVICES A. All work hereunder shall be performed under the direction of the Building Maintenance Superintendent of the CITY, herein after referred to as the "DIRECTOR ". B. The ARCHITECT will provide design and engineering services related to interior remodeling, mechanical system upgrades, life safety and site work associated with the PARC grant. A detailed Scope of Services is attached hereto as Attachment A. 2. PROGRESS REPORTS A. The ARCHITECT will submit to the DIRECTOR monthly a status report keyed to the project schedule. A brief narrative will be provided identifying progress, findings and outstanding issues. All work product prepared by the ARCHITECT pursuant hereto including, but not limited to, reports, plans, designs, calculations, work drawings, studies, photographs, models and recommendations shall be the property of the CITY and shall be delivered to the CITY upon request of the DIRECTOR; provided, however, that the ARCHITECT may retain copies of such work product for its records and general marketing. ARCHITECT' S execution of this Agreement shall constitute ARCHITECT'S conveyance and assignment of all right, title and interest, including but not limited to any copyright interest, by the ARCHITECT to the CITY of all of such work product prepared by the ARCHITECT pursuant to this Agreement. The CITY shall have the right either on its own or through such other consultants as determined by the CITY to utilize and /or amend such work product. Any such amendment to such work product shall be at the sole risk of the CITY. Such work product is not intended or represented to be suitable for re -use by the CITY and any extension to the PROJECT or in any other project, and such re -use shall be at the sole risk of the CITY without liability or legal exposure to the ARCHITECT. 4. PAYMENTS TO THE ARCHITECT Not To Exceed Method) A. For services identified in Paragraph B of the Scope Services the ARCHITECT shall be paid on a lump sum basis a total fee not to exceed $183,300, regardless of the actual costs incurred by the ARCHITECT unless substantial modifications to the scope of the work are authorized in writing by the DIRECTOR. B. The CITY shall make periodic payments to the ARCHITECT based upon actual progress within 30 days after receipt and approval of invoice. Full payment for the project shall not be made until the project is completed and accepted by the DIRECTOR. C. Reimbursable expense including printing may be charged at cost + 5% for a total amount not to exceed $1,000. 5. INVOICES A. The ARCHITECT shall submit invoices in a format approved by the CITY. Progress reports will be included with all payment requests. B. The ARCHITECT shall maintain records showing actual time devoted and cost incurred. The ARCHITECT shall permit the authorized representative of the CITY to inspect and audit all data and records of the ARCHITECT for work done under this Agreement. The ARCHITECT shall make these 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 at any time upon fifteen (15) days prior written notice to the ARCHITECT. In the event that this Agreement is so terminated, the ARCHITECT shall be paid for services actually performed and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the task amounts set forth under Paragraph 4 above. TERM This Agreement shall become effective as of the date the ARCHITECT is given a notice to proceed and, unless terminated for cause or pursuant to Paragraph 6, shall be deemed concluded on the date the CITY determines that all of the ARCHITECT's work under this Agreement is completed. A determination of completion shall not constitute a waiver of any rights or claims which the CITY may have or thereafter acquire with respect to any term or provision of the Agreement. 81 NOTICE OF CLAIM If the ARCHITECT wishes to make a claim for additional compensation as a result of action taken by the CITY, the ARCHITECT shall give written notice of his claim within 15 days after occurrence of such action. No claim for additional compensation shall be valid unless so made. Any changes in the ARCHITECT's fee shall be valid only to the extent that such changes are included in writing signed by the CITY and the ARCHITECT. Regardless of the decision of the DIRECTOR relative to a claim submitted by the ARCHITECT, all work required under this Agreement as determined by the DIRECTOR shall proceed without interruption. 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 the monies the CITY has agreed to pay to the ARCHITECT pursuant to Section 4 hereof, no action shall be commenced by the ARCHITECT or any other related entity against the CITY for monetary damages. ARCHITECT hereby further waives any and all claims or rights to interest on money claimed to be due pursuant to this Agreement, and waives any and all such rights to interest which it claims it may otherwise be entitled pursuant to law, including, but not limited to, the Local Government Prompt Payment Act (50 ILLS 50111 et seg.), as amended, or the Illinois Interest Act (815 ILCS 205/1, etseg.), as amended. The parties hereto further agree that any action by the ARCHITECT arising out of this Agreement must be filed within one (1) year of the date the alleged cause of action arose or the same will be time barred. The provisions of this paragraph shall survive any completion, expiration and/or termination of this Agreement. 10, INDEMNIFICATION To the fullest extent permitted by law, ARCHITECT shall hold harmless, indemnify and defend the CITY, it 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 the negligent acts or omissions of ARCHITECT in connection herewith, including, but not limited to, the negligent acts or omissions of employees or agents of ARCHITECT arising out of or in connection with the performance of this Agreement. 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 ARCHITECT 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 ARCHITECT shall deliver to the DIRECTOR a Certification of Insurance naming the CITY as an additional insured. The policy shall not be modified or terminated without thirty (30) days prior written notice to the DIRECTOR. The Certificate of Insurance shall include insured contracts coverage. This insurance shall apply as primary insurance with respect to any other insurance or self - insurance programs afforded to the additional insured listed above. There shall be no 13. 14. 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 of insurance coverage for the general liability and auto exposures may be met with a combined single limit of $1,000,000 per occurrence for damage to property. D. Professional Liability. The ARCHITECT shall carry ARCHITECTS Professional Liability Insurance covering claims resulting from negligent error, omissions or 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 ARCHITECT shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the construction, unless specifically identified in the Scope of Services. 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. Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the ARCHITECT shall remain liable to the CITY with respect to each and every item, condition and other provision hereof to the same extent that the ARCI- IITECT 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 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 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 ARCHITECT may not issue any news releases without prior approval from the DIRECTOR, nor will the ARCHITECT 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 ARCHITECT shall cooperate with any other consultants in the CITY's employ or any work associated with the PROJECT. 24, INTERFERENCE WITH PUBLIC CONTRACTING The ARCHITECT certifies hereby that it is not barred from bidding on this contract as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 25. SEXUAL HARASSMENT As a condition of this contract, the ARCHITECT shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E. the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6 -101 of the Human Rights Act. A copy of the policies shall be provided by ARCHITECT to the Department of Human Rights upon request 775 ILCS 5/2 -105. 26, WRITTEN COMMUNICATIONS All recommendations and other communications by the ARCHITECT 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 ARCHITECT 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: RICH HOKE Building Maintenance Superintendent City of Elgin 150 Dexter Court Elgin, Illinois 60120 -5555 B. As to ARCHITECT: BRUCE DAHLQUIST President DLA Architects, LTD. 2 Pierce Place, Suite 1300 Itasca, IL. 60143 28. 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 ARCHITECT shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirement regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the ARCHITECT herby certifies, represents and warrants the CITY that all the ARCHITECT'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 CITY shall have the right to audit any records in the possession or control of the ARCHITECT to determine The ARCHITECT's compliance with the provisions of this section. In the event the CITY proceeds with such an audit, the ARCHITECT shall make available to the CITY the ARCHITECT's relevant records at no cost to the CITY. The ARCHITECT shall pay any and all costs associated with any such audit. As a condition of this Agreement, ARCHITECT shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Project Act, at 820 ILLS 265/1 et seq., as amended. A copy of such policy shall be provided to the DIRECTOR prior to the entry into and execution of this Agreement. 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: Attes P r L L% City Clerk FOR THE ARCHITECT: By �' r Bruce Dahlquist, Presid t Attest: _.ten• Steve Wright, P ner SCOPE OF SERVICES Evaluation of current conditions 2. Evaluation of program space Evaluation of mechanical systems Site evaluation Creation of drawings and specificationibid documents a. Schematic design b. Design development c. Contract documents d. Bidding and negotiations 6. Preparation of paperwork required for the PARC grant Construction phase services a. Pre - construction meeting b. Progress meetings c. Submittal review 8. Final project close out a. Punch list b. As built drawings from contractors Identification and abatement of hazardous material is not included in the scope of services for this contract. Responsibility for a structural survey, analysis, and /or correction of existing structural conditions shall be that of the City of Elgin, outside the scope of this contract. If the City of Elgin so chooses, they will contract directly with their consultant to perform such services.