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17-39 Resolution No. 17-39 RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT WITH CLEC ENTERPRISES, INC. FOR ELECTRICAL CONTRACTOR TESTING SERVICES (RFP#16-046) 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 Agreement on behalf of the City of Elgin with CLEC Enterprises, Inc. for electrical contractor testing services, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: March 11, 2017 Adopted: March 11, 2017 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CITY OF ELGIN,ILLINOIS,AGREEMENT FOR RFP#16-046 Electrical Contractor Testing Services AGREEMENT THIS AGREEMENT made and entered into this— 11th day of March , 2017, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and CLEC Enterprises, Inc., an Illinois corporation (hereinafter referred to as "CONSULTANT"). WHEREAS, the CITY desires to engage the CONSULTANT to furnish certain professional services in connection with RFP Number: 16-046 for Electrical Contractor Testing Services (hereinafter referred to as the "PROJECT"); and WHEREAS, the CITY desires to engage the CONSULTANT to furnish certain goods and professional services in connection with the PROJECT; and WHEREAS, the CONSULTANT represents that it has the necessary expertise and experience to furnish such goods and services upon the terms and conditions set forth herein below. NOW,THEREFORE, it is hereby agreed by and between the CITY and the CONSULTANT that the CITY does hereby retain the CONSULTANT 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 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 Building and Development Manager and the Community Development Director of the CITY, herein after referred to as the"PROJECT MANAGERS". B. The CONSULTANT shall perform the services relating to the PROJECT as provided in the Scope of Services, attached hereto as Attachment A and made a part hereof by this reference.. 2. PROGRESS REPORTS A. CONSULTANT shall commence providing the services for the PROJECT upon its receipt of a notice to proceed from the CITY pursuant to paragraph 8 of this Agreement. A detailed project schedule for the PROJECT is attached hereto as Attachment B and made a part hereof by this reference. B. The CONSULTANT will submit to the PROJECT MANAGERS a status report keyed to the project schedule and as otherwise requested by the PROJECT MANAGERS. A brief narrative will be provided identifying progress,findings and outstanding issues. 1 1 3. WORK PRODUCTS All work products prepared by the CONSULTANT pursuant hereto including, but not limited to,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 PROJECT MANAGERS provided,however,that the CONSULTANT may retain copies of such work products for its records. CONSULTANT's execution of this Agreement shall constitute CONSULTANT's conveyance and assignment of all right, title and interest,including but not limited to any copyright interest by the CONSULTANT to the CITY of all such work product prepared by the CONSULTANT pursuant to this Agreement. The CITY shall have the right either on its own or through other vendors 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 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 CONSULTANT. 4. PAYMENTS TO THE CONSULTANT A. For the electrical contractor testing services provided by CONSULTANT for the PROJECT, CONSULTANT shall be authorized to collect and retain the exam costs paid by exam takers, except that $100.00 shall be paid to the CITY for each person taking the exam as provided in paragraph 5 herein. CONSULTANT agrees that it shall charge an amount not to exceed $260.00 to each person taking the exam. B. In addition to the foregoing, CONSULTANT shall be paid by the CITY at the rate of $225.00 per hour for each in-person meeting requested by the CITY relating to the PROJECT. Any such meeting must be agreed to in writing by the PROJECT MANAGERS prior to the meeting to be eligible for compensation under this subparagraph 4.13. C. The CITY shall make payments to the CONSULTANT for meetings under subparagraph 4.13 within thirty(30) days of the CITY's receipt of an invoice for the same. 5. PAYMENTS TO THE CITY A. All exam costs for an electrical contractor exam will be paid by the exam taker to the CONSULTANT as provided in Paragraph 4, herein. The CONSULTANT shall pay to the CITY $100.00 for each person taking an exam from CONSULTANT pursuant to this Agreement as reimbursement for the CITY's administrative costs and fees in issuing the electrical contractor's license and administering the PROJECT. B. The CONSULTANT shall make periodic payments to the CITY in the amount set forth in subparagraph 5.A based upon the actual number of persons taking an electrical contractor's exam administered pursuant to the Agreement within thirty (30) days of the date that an exam was administered. 2 6. INVOICES A. The CONSULTANT shall submit payments under paragraph 5 in a format approved by the CITY. Progress reports shall be included with all payments. B. The CONSULTANT shall maintain records showing actual time devoted and cost incurred. The CONSULTANT shall permit the authorized representative of the CITY to inspect and audit all data and records of the CONSULTANT for work done under this Agreement.The CONSULTANT shall make these records available at reasonable times during the Agreement period, and for one (1) year after termination of this Agreement. 7. TERMINATION OF AGREEMENT Notwithstanding any other provision hereof, the CITY may terminate this Agreement at any time for convenience or any other reason upon thirty (30) days prior written notice to CONSULTANT without penalty. In the event this Agreement is so terminated, CONSULTANT and the CITY shall be paid for goods provided and/or services actually performed, and reimbursable expenses actually incurred as may be specifically provided for herein prior to such termination, except that such payment and/or reimbursement shall not in any event exceed the total amount set forth for the total contemplated payment provided for herein. Additionally, in the event this Agreement is so terminated, CONSULTANT shall immediately cease the expenditure of any funds paid to CONSULTANT by the CITY and shall refund to the CITY any unearned or unexpended funds. 8. TERM This Agreement shall become effective as of the date the CONSULTANT is given a notice to proceed and, unless terminated for cause or pursuant to Paragraph 7, shall terminate three (3)years thereafter. This Agreement may be extended, retaining the same terms and conditions, for two additional one-year terms, if the CITY exercises the option to do so, in its sole discretion. 9. NOTICE OF CLAIM If the CONSULTANT wishes to make a claim for additional compensation as a result of action taken by the CITY,the CONSULTANT shall give written notice of his claim within fifteen (15) days after occurrence of such action. No claim for additional compensation shall be valid unless so made. Any changes in the CONSULTANT`s fee shall be valid only to the extent that such changes are included in writing signed by the PROJECT MANAGERS and the CONSULTANT. Regardless of the decision of the PROJECT MANAGERS relative to a claim submitted by the CONSULTANT, all work required under this Agreement as determined by the PROJECT MANAGERS shall proceed without interruption. 3 10. BREACH OF CONTRACT If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek such administrative, contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party,by reason of any default,fails within fifteen(15)days after notice thereof by the other party to comply with the conditions of the Agreement,the other party may terminate this Agreement. Notwithstanding the foregoing or anything else to the contrary in this Agreement,with the sole exception of the monies the CITY has agreed to pay to the CONSULTANT pursuant to Paragraph 4 hereof, no action shall be commenced by the CONSULTANT or any other related entity against the CITY for monetary damages. CONSULTANT hereby further waives any and all claims or rights to interest on money claimed to be due pursuant to this Agreement,and waives any and all such rights to interest which it claims it may otherwise be entitled pursuant to law,including,but not limited to,the local government Prompt Payment Act(50 ILCS 501/1,et seq.),as amended,or the Illinois Interest Act(815 ILCS 205/1,et seq.),as amended. The parties hereto further agree that any action by the CONSULTANT 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 will survive any expiration, completion and/or termination of this Agreement. 11. INDEMNIFICATION To the fullest extent permitted by law, CONSULTANT agrees to and shall indemnify, defend and hold harmless the CITY, its officers, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorney's fees, damages or other relief, including but not limited to workers compensation claims, in any way resulting from or arising out of negligent actions or omissions of the CONSULTANT in connection herewith, including negligence or omissions of employees or agents of the CONSULTANT arising out of the performance of this Agreement. In the event of any action against the CITY, its officers, employees, agents, boards or commissions, covered by the foregoing duty to indemnify, defend and hold harmless such action shall be defended by legal counsel of the CITY's choosing. The provisions of this paragraph shall survive any expiration,completion and/or termination of this Agreement. 12. 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. 13. INSURANCE A. Comprehensive Liability. The CONSULTANT shall provide, pay for and maintain in effect, during the term of this Agreement, a policy of comprehensive general liability 4 insurance with limits of at least $1,000,000 aggregate for bodily injury and $1,000,000 aggregate for property damage. The CONSULTANT shall deliver to the Purchasing Director a Certification of Insurance naming the CITY as additional insured. The Certificate of Insurance which shall include Contractual obligation assumed by the CONSULTANT under Paragraph 11 entitled "Indemnification" shall be provided. The policy shall not be modified or terminated without thirty(30) days prior written notice to the PROGRAM DIRECTOR The Certificate of Insurance which shall include Contractual obligation assumed by the CONSULTANT under Paragraph 11 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 CONSULTANT shall carry 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 Purchasing Director as evidence of insurance protection.The policy shall not be modified or terminated without thirty(30)days prior written notice to the Purchasing Director. 14. (INTENTIONALLY OMITTED) 15. NONDISCRIMINATION In all hiring or employment made possible or resulting from this Agreement,there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 5 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. 16. 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. 17. DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the CONSULTANT shall remain liable to the CITY with respect to each and every item,condition and other provision hereof to the same extent that the CONSULTANT 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. 18. 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. 19. 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. 20. 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. 21. 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 6 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. 22. 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. 23. NEWS RELEASES The CONSULTANT may not issue any news releases without prior approval from the City Manager, nor will the CONSULTANT make public proposals developed under this Agreement without prior written approval from the City Manager, prior to said documentation becoming matters of public record. 24. COOPERATION WITH OTHER CONSULTANTS The CONSULTANT shall cooperate with any other consultants in the CITY's employ or any work associated with the PROJECT. 25. INTERFERENCE WITH PUBLIC CONTRACTING The CONSULTANT 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. 26. SEXUAL HARASSMENT As a condition of this contract, the CONSULTANT 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 must be provided by CONSULTANT to the Department of Human Rights upon request see 775 ILCS 5/2-105). 7 27. WRITTEN COMMUNICATIONS All recommendations and other communications by the CONSULTANT to the PROJECT MANAGERS and to other participants which may affect cost or time of completion of the PROJECT shall be made or confirmed in writing. The PROJECT MANAGERS may also require other recommendations and communications by the CONSULTANT be made or confirmed in writing. 28. NOTICES All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail,postage prepaid, addressed as follows: A. As to CITY: Richard G. Kozal City Manager City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to CONSULTANT: Bill Dettmer CLEC Enterprises 5105 Tollview Suite 270 Rolling Meadows, IL 60008 29. COMPLIANCE WITH LAWS Notwithstanding any other provisions of this Agreement,it is expressly agreed and understood that in connection with the performance of this Agreement,CONSULTANT 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, CONSULTANT hereby certifies, represents and warrants to the City that all of CONSULTANT's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legally authorized to work in the United States. CONSULTANT 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 CONSULTANT to determine CONSULTANT's compliance with the provisions of this section. In the event the City proceeds with such an audit, CONSULTANT shall make available to the City CONSULTANT's relevant records at no cost to the City. 8 CONSULTANT shall pay any and all costs associated with any such audit up to the amount of$900. 30. ELECTRONIC TRANSMISSIONS This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same Agreement. For the purposes of executing this Agreement, any signed copy of this Agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this Agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this Agreement shall be re-executed by the parties in an original form. No party to this Agreement shall raise the use of fax machine or e-mail as a defense to this Agreement and shall forever waive such defense. 31. AUTHORIZATION The person signing this Agreement certifies that s/he has been authorized by the Agreement to commit the CONSULTANT contractual and has been authorized to execute THIS Agreement on its behalf. 9 CITY OF CONSUJA)kNT By: y: Richard G. Kozal,City anager Name/Print:Bill Dettmer Title: President City Clerk 10 Attachment A 1 B. Scope of Services: CLEC Enterprises Inc. will provide City of Elgin with written tests and the testing facility for Elgin Electrical Contractors Exam. The Written Test portion will be an original test created by the vendor/consultant. The written test will be based on current common electrical contractor practices utilized in Illinois; Illinois laws; City ordinances; and leadership and law orientated books selected by the Building and Development Manager or his designee(s). The vendor/consultant will schedule a meeting(s) with the Building and Development Manager or designee(s) to review the duties performed by an Electrical Contractor prior to creating the written test. The Assessment Center process shall include the following: 1. The vendor/consultant will schedule a meeting(s) with the Building and Development Manager or designee(s)to review the duties performed by an Electrical Contractor and to discuss possible scenarios to be included in the assessment center for this position. 2. The vendor/consultant will then prepare draft exams and submit them to the Building and Development Manager or designee(s) for his review and approval. 3. The vendor/consultant will be responsible for administering the assessment center that will consist of a minimum of(6) exams that will reflect the operations and policies of the City of Elgin Community Development Department and the duties consistent with a Licensed Electrical Contractor. 4. The vendor/consultant will be responsible for selecting qualified individuals to serve as assessors for the assessment center exams. The vendor/consultant will be responsible for all fees/salaries paid to the assessors. Assessors selected must have substantial experience in building department management and have no knowledge of any of the candidates and have no connection with the City of Elgin Community Development Department. 5. Prior to the assessment center, the vendor/consultant will conduct an orientation session for the assessors to introduce them to the Community Development staff to familiarize assessors with the department goals and philosophies. 6. Prior to the assessment center, the vendor/consultant will conduct an orientation session for the candidates to familiarize them with the process, the exams, and how they will be evaluated. 7. If possible, the vendor/consultant will videotape or digitally video record all exams in the assessment center, including the candidate evaluation and scoring, to document the consistency of the evaluation process and so the candidates can review their performance. A DVD, or other electronic media source,will be provided to the City and/or the candidate if requested by either. 8. The vendor/consultant will provide the Building and Development Manager a final report on the candidates' scores within one week following the completion of the assessment center. Scores will be based on a maximum of 100 percent. 9. Following the completion of the assessment center, the vendor/consultant will conduct individual debriefing sessions, onsite, advising the candidates of their strengths and weaknesses. Potential testers will contact the City of Elgin regarding the Electrical contractor's exam, and in turn City of Elgin will refer testers to CLEC. CLEC will have the potential tester enroll online and pay for testing services for the date the tester chooses. Testers wishing to pay by company check may mail the check to: CLEC Enterprices Inc. 5105 Tollview Drive Suite 270 Rolling Meadows, IL 60008 CLEC Enterprises Inc will allow for same day registration. Payment will be accepted in form of Credit Card, Cash, and Checks. CLEC prefers checks or credit as payment. CLEC will provide a secure testing facility during the testing process. Each tester will be checked in, assigned seating, be instructed on rules of the testing facility, and be given education on the use of Scantron test. CLEC will have a manager and test proctors on site, number of proctors will depend on number of testers. Once the test is complete CLEC will grade all tests, and turn over information to the City of Elgin. Information includes forms required by the City of Elgin and test grades. CLEC will pay the City of Elgin within 30 days for their portion thereof. CLEC will provide 6 written exams given in random order to ensure quality and to decreased chance of cheating.If any testing material is compromised new tests will be written. Discrepancies in the testing facility will be turned over to the City of Elgin along with security footage. CLEC Enterprises Inc has provided written exams for other municipalities and their electrical commissions. Attachment B 2A. Project Schedule: CLEC Enterprises Inc.will conduct testing for the Elgin Electrical Contractors Exam on the following dates: March 11th, 2017 April 8th, 2017 May 13th,2017 June 10th, 2017 July 15th, 2017 August 12th, 2017 September 16th, 2017 October 14th, 2017 November 18th, 2017 December 16th, 2017 Supplementary dates may be added if the City of Elgin requires additional testing. CLEC Enterprises Inc will provide testing dates for 2018 by December 15th, 2017.