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19-28 Resolution No. 19-28 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH HILLARD HEINTZE, LLC FOR AN INDEPENDENT PROFESSIONAL STANDARDS INVESTIGATION 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 an Agreement on behalf of the City of Elgin with Hillard Heintze,LLC, for an independent professional standards investigation, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 27, 2019 Adopted: February 27, 2019 Vote: Yeas: 7 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk H I LLARD H E I NTZ E' Protecting What Matters MASTER PROFESSIONAL SERVICES AGREEMENT This Master Professional Services Agreement("Agreement") is made and entered into on February 27, 2019 by and between Hillard Heintze LLC, an Illinois Limited Liability Company, with its principal place of business at 30 South Wacker Drive,Suite 1400, Chicago, Illinois 60606("Company") and City of Elgin, 150 Dexter Court, Elgin, Illinois 60120, a Municipal Corporation ("Client"). 1. DESCRIPTION OF SERVICES Company agrees to provide professional consulting and advisory services as more fully set forth in Addendum attached hereto and in the future as Addenda ("Services"). 2. FEES AND PAYMENT 2.1 In consideration for the Services provided to Client by Company, Client agrees to pay to Company the fee and/or hourly rates set forth in any Addenda and on the terms and conditions stated herein. 2.2 Company will invoice Client for Services and expenses as outlined in each Addendum as each phase of service is completed or as otherwise mutually agreed. Client agrees to remit payment in full to Company within 30 days from the date of the invoice, or as otherwise may be mutually agreed by the parties.All amounts past due shall accrue interest at 1.5%per month until paid in full. Client shall be liable to Company for all costs and expenses, including reasonable attorneys'fees, incurred by Company in enforcing the payment of any past due amounts owed by Client. 2.3 Client agrees that if,during or after the termination of this Agreement,any person or entity requests or subpoenas any materials/documentation related to work performed under this Agreement, Client shall pay Company its standard hourly rate of$295 for work related to Company's response to such request. 3. EXPENSES Expenses will be billed as incurred and invoiced by the Company.Client shall reimburse Company for all reasonable,documented out-of-pocket expenses separate from the above that may include, but shall not be limited to,the following: • Travel expenses, including airfares, hotel accommodations, meals, rental cars and/or car services. • Postage and courier services. • Printing,graphic support, binding, assembly and duplication. • Any other expenses resulting from the work performed under this Agreement. / 30 South Wacker Drive,Suite 1400-Chicago,Illinois 60606 Phone:312.869.8500-www.hillardheintze.com HILLARD HEINTZE 4. TERM OF AGREEMENT The term of this Agreement shall begin effective as the above date and terminate in accordance with Section 5. Specific work assigned and its term shall be defined within the Statements of Work,future Addenda,or as otherwise agreed to between the parties in writing. 5. TERMINATING THE AGREEMENT Company may, upon fifteen (15)days prior written notice,terminate this Agreement, or in the event of a material breach, either Party may terminate within ten (10)days after written notice of such material breach and if such breach is not cured within said ten (10)day period. 6. INDEPENDENT CONTRACTOR For purposes of this Agreement,Company is an independent contractor. Nothing contained herein shall be construed to create an employment, principal-agent relationship, or joint venture between Company and Client, and neither party shall have the right, power or authority to obligate or bind the other to any third party. 7. CONFIDENTIAL INFORMATION AND PROPRIETARY MATERIALS Company and Client, mutually,the "Parties," agree that neither will use nor reproduce in any form any confidential information or divulge all or any part of the confidential information concerning the business practices, means or methods, resources, products or other services,officers and associates and their spouses and dependents("Confidential Information") of the Parties to any third party, either during or after the term of this Agreement. The Parties agree to maintain the confidentiality of the proprietary materials and derivative proprietary materials related to the Confidential Information both during and after the term of this Agreement and to instruct and obligate its employees and agents to do the same. Upon termination of this Agreement.The Parties will destroy,or upon request return,all whole and partial copies and derivatives of any and all Confidential Information.These confidentiality obligations will not restrict any disclosure required by law, provided that the Party gives prompt notice to the other Party of any such request and reasonably cooperates with the other Party at its request and expense,to resist such or to obtain a protective order. 8. NON-SOLICITATION OF EMPLOYEES AND OTHERS Company and Client mutually agree that during the period of this Agreement and for a period of twelve (12) months after this Agreement expires or is terminated as permitted herein, neither party shall, encourage any person to leave the employment of or to not provide services to the other or otherwise interfere with any employment or business relationship of the other without the party's prior written consent; provided that the foregoing provisions shall not prohibit the solicitation or employment of any such person (a) resulting from general advertisements for employment conducted by either party (including any recruitment efforts conducted by any recruitment agency, provided that each party has not directed such recruitment efforts at such person); (b) if such person approaches either party on an unsolicited basis;or(c)following cessation of such person's employment with either party without any solicitation or encouragement by the other party. Page 216 HILLARD HEINTZE 9. INDEMNIFICATION Each party agrees to indemnify,defend and hold the other harmless from and against any and all claims, actions,demands, losses,causes of action, costs and expenses(including documented and reasonable attorneys'fees)to the extent arising from negligent,fraudulent or willful acts or omissions of the indemnifying party, subject to the following: (1)the indemnifying party shall be notified promptly in writing of any notice of such claim, and (2)the indemnifying party shall have the control of the defense of any action of such claims and all negotiations for its settlement, provided that the indemnified party shall be allowed to participate in such defense and provided further that the indemnifying party shall not agree to any settlement which would subject the indemnified party to injunctive relief without first obtaining written consent. 10. DISPUTE RESOLUTION Except for disputes concerning amounts owed pursuant to Section 2 above which are specifically excluded from this Section,Company and Client agree that as a condition precedent to the institution of any action regarding disputes related to the Services provided in connection with this Agreement,such disputes shall first be submitted to mediation before a professional mediator selected by the parties. Such mediation shall be conducted in Chicago, Illinois(or other mutually agreeable location) and at a mutually agreed time and place. Mediation shall not be less than one day in length and the costs and expenses of the mediation, including but not limited to the mediator's fees,shall be split equally between the parties.Only upon the earlier of(i)thirty(30)days from commencement of the mediation, or(ii)the unsuccessful completion of such mediation,shall either party have the right to pursue further resolution for any remaining(unsuccessfully mediated)disputes. 11. LIMITATION OF DAMAGES AND INJUNCTIVE RELIEF In no event shall either party, nor their respective employees,officer and directors be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses,or losses (including,without limitation, lost profits and opportunity costs).Client agrees that Company, its employees and officers shall not be liable to Client for any actions, damages, claims, liabilities,costs, expenses or losses in any way arising out of or relating to this Agreement for an aggregate amount in excess of the fees paid by Client to Company for the Services. No terms of this Agreement shall benefit or create any right or cause of action in or on behalf of any person or entity other than Client and Company.The parties agree that Company does not represent and cannot warrant that the services, information, recommendations and/or products and equipment furnished and/or implemented will prevent or minimize the likelihood of loss. The parties agree that a breach of any of the promises or agreements contained in Sections 7,8,9 and 10 above will result in irreparable and continuing damage to the other party for which there will be no adequate remedy at law, and the non-breaching party shall be entitled to seek injunctive relief and/or a decree for specific performance, and such other relief as may be proper(including monetary damages if appropriate). Page 316 HILLARD HEINTZE 12. ENTIRE AGREEMENT This Agreement,any Addenda,and any other future attachments specifically incorporated herein, set forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.This Agreement shall control over any conflicting provisions of any invoice, purchase order or other document, and such conflicting provisions are expressly rejected.This Agreement may be amended or changed only by a writing signed by the parties. 13. NOTICES Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery,when delivered personally; (b) by overnight courier, upon written verification of receipt; (c) by certified or registered mail, return receipt requested;or(d) by email with reasonable proof of transmission and receipt. Notices shall be sent to the parties then current address or such other address as a party may specify in writing. 14. GOVERNING LAW and JURISDICTION This Agreement, including the validity hereof and the rights and obligations of the parties hereto,and all matters arising out of or relating to this Agreement and/or any and all related documents shall be governed by,and construed and enforced in accordance with the substantive laws of the State of Illinois, without regard to its otherwise applicable principles of conflicts of laws, and any action arising out of or related thereto shall be brought in either the United States District Court for the Northern District of Illinois or the Circuit Court of Cook County, Illinois. IN WITNESS WHEREOF,the parties have executed this Agreement as of the date first written above. HILLARD HEINTZE LLC CITY OF ELGIN Signature: Signature: Name: Arnette Heintze Name: Richard G. Kozal Title: Chief Executive Office Title: City Manager Atte t: 111110 (2g1-1-1A Kimberly A. 'ewis, City Clerk Page 416 HILLARD Ar HEINTZE ADDENDUM TO THE MASTER PROFESSIONAL SERVICES AGREEMENT 1. STATEMENT OF WORK AND SERVICES Company will provide the following Services for Client as described herein: • Conduct a professional standards investigation regarding the incident that occurred on March 12, 2018,to include an administrative review of the event, evidence and actions that took place regarding the officer involved shooting event. • Meet with key stakeholders and parties with relevant information in support of the investigation. • Conduct a high level review of relevant policies and provide recommendations to inform consistent, professional response by the members of the Elgin Police Department. Deliverables include: Within six weeks of the initial meeting, Company will provide: • A draft report to the Corporation Counsel that translates key findings and recommendations to drive a best-practice-based approach to office-involved shooting incidents. • A Professional Standards Report outlining our professional standards investigation and findings regarding the incident. Upon request, Company will attend a public meeting to explain and answer questions on our findings. 2. TERM OF AGREEMENT The term of this Agreement provides for Services to be delivered to Client upon execution of this agreement and in effect until delivery of services or terminated by providing a written notice to the other party of the intent to terminate as outlined Master Professional Services Agreement. 3. FEES AND EXPENSES Fees:Company's fee for this work is$48,366. Reimbursable Expenses: Expenses will be billed in the invoices issued by the Company in accordance with Section 3 of the Agreement.Company will add 7.5 percent to the project fee to cover the costs associated with the investigation, including those for databases, research tools,court searches, court runners,and copies of public records, among others. SIGNATURE PAGE FOLLOWS Page 516 HILLARD ly HEINTZE IN WITNESS WHEREOF,the Parties have executed this Statement of Work and Services as of February 27,2019 pursuant to the Master Professional Services Agreement dated February 27, 2019. HILLARD HEINTZE LLC CITY OF ELGIN sarliA Signature: Signature: Name: Arnette Heintze Name: Richard G. Kozal Title: Chief Executive Officer Title: City Manager Attest: Kimberly A. D 's, ty Clerk Page 616