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HomeMy WebLinkAboutResolution 2026-026 Resolution No. 2026-26 A RESOLUTION OF THE UNITED CITY OF YORKVILLE, ILLINOIS APPROVING AN AGREEMENT FOR AIR POLLUTION CONSULTING SERVICES WITH TERRACON CONSULTANTS, INC. WHEREAS,the United City of Yorkville, Kendall County, Illinois(the "City"), is a duly organized unit of government of the State of Illinois within the meaning of Article VII, Section 10 of the 1970 Illinois Constitution; and WHEREAS,as the complexity of development projects within the City increases,the City requires the assistance of an environmental consultant to ensure projects within the City comply with State and Federal requirements for air pollution and provide reports and attend hearings, on an as-needed basis (the "Project"); and WHEREAS, Terracon Consultants, Inc. ("Terracon") is a national engineering and consulting firm with expertise in environmental regulation; and WHEREAS, Terracon has submitted a Master Consultant Agreement and Task Order to the City (the "Contract"); and WHEREAS, under the Contract, Terracon would require a $10,000 retainer fee, which would be applied to tasks Terracon would perform at the City's request; and WHEREAS,the City finds Contract to be satisfactory and wishes to enter into the Master Consultant Agreement with Terracon Consultants, Inc. NOW,THEREFORE,BE IT RESOLVED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. The recitals set forth above are incorporated into this Resolution as if fully restated herein. Resolution No. 2026-26 Page 1 Section 2. That the Master Services Agreement, by and between the City and Terracon Consultants, Inc., attached hereto as Exhibit A and made a part hereof by reference, and payment of an associated retainer fee of$10,000 are hereby approved, and the Mayor and City Clerk are hereby authorized to execute said agreement on behalf of the United City of Yorkville. Section 3. That this Resolution shall be in full force and effect from and after its passage and approval as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this loth day of March,A.D. 2026. 0/15tAAA Y CLERK KEN KOCH AYE DAN TRANSIER AYE ARDEN JOE PLOCHER AYE CRAIG SOLING AYE CHRIS FUNKHOUSER AYE MATT MAREK AYE RUSTY CORNEILS AYE RUSTY HYETT AYE ff APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois this 1544'day of Mar CV> ,A.D. 2026. MAYOR Attest: CW,t/c' z,cO Y CLERK Resolution No. 2026-26 Page 2 lirerracon Reference Number:1126MSA233 MASTER SERVICES AGREEMENT This MASTER SERVICES AGREEMENT("MSA")is between The United City of Yorkville IL ("Client")and Terracon Consultants, Inc., its subsidiaries and affiliates, ("Consultant")for Services to be provided by Consultant on projects as described in the Project Information section of individual Task Orders or Task Order Proposals(which sections are incorporated into this MSA). For purposes of this MSA,"Client"shall include The United City of Yorkville IL,its subsidiaries and affiliates. 1. Scope of Services.The scope of Consultant's services("Services")will be set forth in the Scope of Services section of an individual Task Order,or Task Order Proposal (which sections are incorporated into this MSA). Portions of the Services may be subcontracted. Consultant's Services do not include the investigation or detection,nor do recommendations in Consultant's reports address the presence or prevention of biological pollutants(e.g., mold,fungi,bacteria,viruses,or their byproducts)or occupant safety issues,such as vulnerability to natural disasters,terrorism,or violence.If Services include purchase of software, Client will execute a separate software license agreement. Consultant's findings, opinions, and recommendations are based solely upon data and information obtained by and furnished to Consultant at the time of the Services. 2. Acceptance/Termination.Client agrees that execution of this MSA is a material element of the consideration Consultant requires to execute the Services,and if Services are initiated by Consultant prior to execution of this MSA as an accommodation for Client at Client's request,both parties shall consider that commencement of Services constitutes formal acceptance of all terms and conditions of this MSA.Additional terms and conditions may be added or changed only by written amendment to this MSA signed by both parties.In the event Client uses a purchase order or other form,including email authorization, to administer this MSA, the use of such form shall be for convenience purposes only and any additional or conflicting terms it contains are stricken. This MSA shall not be assigned by either party without prior written consent of the other party. Either party may terminate this MSA or the Services upon written notice to the other. In such case,Consultant shall be paid costs incurred and fees earned to the date of termination plus reasonable costs of closing the project. 3. Change Orders.Client may request changes to the scope of Services by altering or adding to the Services to be performed. If Client so requests, Consultant will return to Client a statement (or supplemental proposal) of the change setting forth an adjustment to the Services and fees for the requested changes. Following Client's review, Client shall provide written acceptance. If Client does not follow these procedures, but instead directs, authorizes,or permits Consultant to perform changed or additional work,the Services are changed accordingly and Consultant will be paid for this work according to the fees stated or its current fee schedule. If project conditions change materially from those observed at the site or described to Consultant at the time of proposal,Consultant is entitled to a change order equitably adjusting its Services and fee. 4. Compensation and Terms of Payment. Client shall pay compensation for the Services performed at the fees stated in the Compensation section of the individual Task Order, or Task Order Proposal (which sections are incorporated into this MSA). If not stated in either, fees will be according to Consultant's current fee schedule.Fee schedules are valid for the calendar year in which they are issued. Fees do not include sales tax. Client will pay applicable sales tax as required by law. Consultant may invoice Client at least monthly and payment is due upon receipt of invoice. Client shall notify Consultant in writing,at the address below,within 15 days of the date of the invoice if Client objects to any portion of the charges on the invoice, and shall promptly pay the undisputed portion. Client shall pay a finance fee of 1.5% per month, but not exceeding the maximum rate allowed by law,for all unpaid amounts 30 days or older.Client agrees to pay all collection-related costs that Consultant incurs,including attorney fees. Consultant may suspend Services for lack of timely payment. It is the responsibility of Client to determine whether federal, state, or local prevailing wage requirements apply and to notify Consultant if prevailing wages apply. If it is later determined that prevailing wages apply,and Consultant was not previously notified by Client,Client agrees to pay the prevailing wage from that point forward,as well as a retroactive payment adjustment to bring previously paid amounts in line with prevailing wages. Client also agrees to defend, indemnify, and hold harmless Consultant from any alleged violations made by any governmental agency regulating prevailing wage activity for failing to pay prevailing wages, including the payment of any fines or penalties. 5. Third Party Reliance. This MSA and the Services provided are for Consultant and Client's sole benefit and exclusive use with no third party beneficiaries intended. Reliance upon the Services and any work product is limited to Client, and is not intended for third parties. For a limited time period not to exceed three months from the date of the report,Consultant will issue additional reports to others agreed upon with Client,however Client understands that such reliance will not be granted until those parties sign and return Consultant's reliance agreement and Consultant receives the agreed-upon reliance fee. 6. LIMITATION OF LIABILITY.CLIENT AND CONSULTANT HAVE EVALUATED THE RISKS AND REWARDS ASSOCIATED WITH THIS MSA, INCLUDING CONSULTANT'S FEE RELATIVE TO THE RISKS ASSUMED,AND AGREE TO ALLOCATE CERTAIN OF THE ASSOCIATED RISKS. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF CONSULTANT (AND ITS RELATED CORPORATIONS AND EMPLOYEES)TO CLIENT AND THIRD PARTIES GRANTED RELIANCE IS LIMITED TO THE GREATER OF$50,000 OR THE COMPENSATION PAID TO CONSULTANT FOR THE SPECIFIC PROJECT TASK ORDER IN DISPUTE, FOR ANY AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES,OR EXPENSES(INCLUDING ATTORNEY AND EXPERT FEES)ARISING OUT OF CONSULTANT'S SERVICES OR THIS MSA. PRIOR TO ACCEPTANCE OF THIS AGREEMENT AND UPON WRITTEN REQUEST FROM CLIENT, CONSULTANT MAY NEGOTIATE A HIGHER LIMITATION FOR ADDITIONAL CONSIDERATION. THIS LIMITATION SHALL APPLY REGARDLESS OF AVAILABLE PROFESSIONAL LIABILITY INSURANCE COVERAGE,CAUSE(S)OR THE THEORY OF LIABILITY,INCLUDING NEGLIGENCE,INDEMNITY,OR OTHER RECOVERY. THIS LIMITATION SHALL NOT APPLY TO THE EXTENT THE DAMAGE IS PAID UNDER CONSULTANT'S COMMERCIAL GENERAL LIABILITY POLICY. 7. Indemnity/Statute of Limitations.Consultant and Client shall indemnify and hold harmless the other and their respective employees from and against legal liability for claims, losses,damages,and expenses to the extent such claims,losses,damages,or expenses are legally determined to be caused by their negligent acts,errors,or omissions.In the event such claims,losses,damages,or expenses are legally determined to be caused by the joint or concurrent negligence of Consultant and Client,they shall be borne by each party in proportion to its own negligence under comparative fault principles. Neither party shall have a duty to defend the other party,and no duty to defend is hereby created by this indemnity provision and such duty is explicitly waived under this MSA. Causes of action arising out of Consultant's services or this MSA regardless of cause(s)or the theory of liability, including negligence,indemnity or other recovery shall be deemed to have accrued and the applicable statute of limitations shall commence to run not later than the date of Consultant's substantial completion of services on the project. 8. Warranty. Consultant will perform the Services in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions in the same locale. EXCEPT FOR THE STANDARD OF CARE PREVIOUSLY STATED, CONSULTANT MAKES NO WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO CONSULTANT'S SERVICES AND CONSULTANT DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 9. Insurance.Consultant represents that it now carries,and will continue to carry: (i)workers'compensation insurance in accordance with the laws of the states having jurisdiction over Consultant's employees who are engaged in the Services, and employer's liability insurance ($1,000,000); (ii) Page 1 of 2 Rev.11-22 Ilirerracon Reference Number:1126MSA233 commercial general liability insurance($2,000,000 occ/$4,000,000 agg); (iii)automobile liability insurance($2,000,000 B.I.and P.D.combined single limit); (iv)umbrella liability ($5,000,000 occ/agg); and (iv) professional liability insurance ($1,000,000 claim /agg). Certificates of insurance will be provided upon request.Client and Consultant shall waive subrogation against the other party on all general liability and property coverage. 10. CONSEQUENTIAL DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOSS OF PROFITS OR REVENUE; LOSS OF USE OR OPPORTUNITY; LOSS OF GOOD WILL; COST OF SUBSTITUTE FACILITIES, GOODS,OR SERVICES; COST OF CAPITAL; OR FOR ANY SPECIAL,CONSEQUENTIAL,INDIRECT,PUNITIVE,OR EXEMPLARY DAMAGES. 11. Dispute Resolution. Client shall not be entitled to assert a Claim against Consultant based on any theory of professional negligence unless and until Client has obtained the written opinion from a registered,independent,and reputable engineer,architect,or geologist that Consultant has violated the standard of care applicable to Consultant's performance of the Services. Client shall provide this opinion to Consultant and the parties shall endeavor to resolve the dispute within 30 days, after which Client may pursue its remedies at law. This MSA shall be governed by and construed according to Illinois law. 12. Subsurface Explorations.Subsurface conditions throughout the site may vary from those depicted on logs of discrete borings,test pits,or other exploratory services.Client understands Consultant's layout of boring and test locations is approximate and that Consultant may deviate a reasonable distance from those locations. Consultant will take reasonable precautions to reduce damage to the site when performing Services; however, Client accepts that invasive services such as drilling or sampling may damage or alter the site.Site restoration is not provided unless specifically included in the Services. 13. Testing and Observations.Client understands that testing and observation are discrete sampling procedures,and that such procedures indicate conditions only at the depths,locations,and times the procedures were performed.Consultant will provide test results and opinions based on tests and field observations only for the work tested. Client understands that testing and observation are not continuous or exhaustive, and are conducted to reduce -not eliminate-project risk. Client agrees to the level or amount of testing performed and the associated risk. Client is responsible (even if delegated to contractor)for requesting services,and notifying and scheduling Consultant so Consultant can perform these Services.Consultant is not responsible for damages caused by services not performed due to a failure to request or schedule Consultant's services. Consultant shall not be responsible for the quality and completeness of Client's contractor's work or their adherence to the project documents,and Consultant's performance of testing and observation services shall not relieve Client's contractor in any way from its responsibility for defects discovered in its work, or create a warranty or guarantee.Consultant will not supervise or direct the work performed by Client's contractor or its subcontractors and is not responsible for their means and methods. 14. Sample Disposition,Affected Materials,and Indemnity.Samples are consumed in testing or disposed of upon completion of tests(unless stated otherwise in the Services).Client shall furnish or cause to be furnished to Consultant all documents and information known or available to Client that relate to the identity, location, quantity, nature, or characteristic of any hazardous waste, toxic, radioactive, or contaminated materials("Affected Materials") at or near the site, and shall immediately transmit new, updated, or revised information as it becomes available. Client agrees that Consultant is not responsible for the disposition of Affected Material unless specifically provided in the Services, and that Client is responsible for directing such disposition. In the event that test samples obtained during the performance of Services (i) contain substances hazardous to health, safety, or the environment, or (ii) equipment used during the Services cannot reasonably be decontaminated, Client shall sign documentation (if necessary)required to ensure the equipment and/or samples are transported and disposed of properly,and agrees to pay Consultant the fair market value of this equipment and reasonable disposal costs.In no event shall Consultant be required to sign a hazardous waste manifest or take title to any Affected Materials.Client shall have the obligation to make all spill or release notifications to appropriate governmental agencies.The Client agrees that Consultant neither created nor contributed to the creation or existence of any Affected Materials conditions at the site.Accordingly,Client waives any claim against Consultant and agrees to indemnify and save Consultant,its agents,employees,and related companies harmless from any claim,liability or defense cost, including attorney and expert fees,for injury or loss sustained by any party from such exposures allegedly arising out of Consultant's non-negligent performance of services hereunder,or for any claims against Consultant as a generator,disposer,or arranger of Affected Materials under federal,state,or local law or ordinance. 15. Ownership of Documents.Work product, such as reports, logs, data, notes, or calculations, prepared by Consultant shall remain Consultant's property. Proprietary concepts, systems, and ideas developed during performance of the Services shall remain the sole property of Consultant. Files shall be maintained in general accordance with Consultant's document retention policies and practices. 16. Utilities.Unless otherwise stated in the Proposal,Client shall provide the location and/or arrange for the marking of private utilities and subterranean structures. Consultant shall take reasonable precautions to avoid damage or injury to subterranean structures or utilities. Consultant shall not be responsible for damage to subterranean structures or utilities that are not called to Consultant's attention,are not correctly marked,including by a utility locate service,or are incorrectly shown on the plans furnished to Consultant. 17. Site Access and Safety. Client shall secure all necessary site related approvals, permits, licenses, and consents necessary to commence and complete the Services and will execute any necessary site access agreement. Consultant will be responsible for supervision and site safety measures for its own employees, but shall not be responsible for the supervision or health and safety precautions for any third parties, including Client's contractors, subcontractors, or other parties present at the site. In addition, Consultant retains the right to stop work without penalty at any time Consultant believes it is in the best interests of Consultant's employees or subcontractors to do so in order to reduce the risk of exposure to unsafe site conditions. Client agrees it will respond quickly to all requests for information made by Consultant related to Consultant's pre-task planning and risk assessment processes. Consultant: Terracon Consultants,Inc. Client: The United City of Yorkville IL By: ./ ( Date: 3/3/2026 By: Date: 5 I'?�I ,tcci Name/Title: J.David Moon/Department Manager Name/Title: Bart Olson/City Administrator Address: 192 Exchange Blvd Address: 651 Prairie Pointe Drive Glendale Heights,IL 60139-2089 Yorkville,IL 60560 Phone: (630)717-4263 Fax: Phone: (630)553-8537 Fax: Email: Dave.Moon@terracon.com Email: bolson@yorkville.il.us Page 2 of 2 Rev.11-22 irerracon- Reference Number: 1126MSA233 MASTER SERVICES AGREEMENT TASK ORDER This TASK ORDER is issued under the MASTER SERVICES AGREEMENT dated 03/03/2026 between The United City of Yorkville IL("Client")and Terracon Consultants,Inc.("Consultant")for Services to be provided by Consultant for Client on the Continuing Environmental Consultation-Yorkville, Illinois project("Project"),as described in the Project Information section of the Consultant's Task Order Proposal dated 03/03/2026("Task Order Proposal") unless the Project is otherwise described below or in Exhibit A to this Task Order(which section or Exhibit are incorporated into this Task Order).This Task Order is incorporated into and part of the Master Services Agreement. 1. Project Information The United City of Yorkville IL has been receiving data center development applications and needs assistance in reviewing air pollution information from diesel generators to inform the public and other affected parties. 2. Scope of Services The scope of Services to be provided under this Task Order are described in the Scope of Services section of the Consultant's Task Order Proposal,unless Services are otherwise described below or in Exhibit B to this Task Order. In supporting The United City of Yorkville IL,Terracon Consultants,Inc.will answer questions from the public and elected officials regarding data center development applications,focusing on state and federal environmental regulations. 3. Compensation Client shall pay compensation for the Services performed at the fees stated in the Task Order Proposal unless fees are otherwise stated below or in Exhibit C to this Task Order. Terracon Consultants,Inc.requests a$10,000 retainer for services,in which services provided will be charged on an as-needed basis. All terms and conditions of the Master Services Agreement shall continue in full force and effect. This Task Order is accepted and Consultant is authorized to proceed. Consultant: Terracon Consultants,Inc. Client: The United City of Yorkville IL By: "411 Date: 3/3/2026 By: Date: J Z `1J12�p Name/Title: J.David Moon/Department Manager Name/Title: Bart Olson/City Administrator 1 Address: 192 Exchange Blvd Address: 651 Prairie Pointe Drive Glendale Heights, IL 60139-2089 Yorkville, IL 60560 Phone: (630)717-4263 Fax: Phone: (630)553-8537 Fax: Email: Dave.Moon@terracon.com Email: bolson@yorkvilie.il.us Page 1 of 1 Rev.7-18