IDOT_StandardAgreementProvisionsForConsultantServices2018.pdf

Standard Agreement Provisions for Consultant Services PAGE i

STANDARD AGREEMENT

PROVISIONS FOR

CONSULTANT SERVICES

July 1, 2018

Printed by Authority of the State of Illinois

Standard Agreement Provisions for Consultant Services PAGE ii

TABLE OF CONTENTS

PREAMBLE ......................................................................................................................... v

SECTION 1: DEFINITIONS

1.01 ACTUAL COSTS

1.02 ADDITIONAL COMPENSATION

1.03 ADDITIONAL SERVICES

1.04 AGREEMENT

1.05 APPROVING PARTY

1.06 AUTHORITY TO PROCEED

1.07 BUREAU CHIEF

1.08 CALENDAR DAYS

1.09 CHANGE

1.10 CODE OF FEDERAL REGULATIONS (CFR)

1.11 CONFIDENTIAL AND PROPRIETARY INFORMATION

1.12 COMPENSATION

1.13 CONSTRUCTION SECTION

1.14 CONSULTANT

1.15 CONTRACT

1.16 CONTRACTOR

1.17 COST

1.18 DAMAGES

1.19 DEPARTMENT

1.20 DESIGN SECTION

1.21 DIRECTOR

1.22 ERROR

1.23 EXECUTION

1.24 FAPG

1.25 FHWA

1.26 FIXED FEE

1.27 KEY PERSONNEL

1.28 LIAISON MANAGERS

1.29 NEGLIGENCE

1.30 OMISSION

1.31 PHASE

1.32 PROFESSIONAL TRANSPORTATION BULLETIN

1.33 PROGRESS REPORT

1.34 PROJECT

1.35 PROJECT SCHEDULE

1.36 QUALITY ASSURANCE

1.37 QUALITY CONTROL

1.38 RECORD DOCUMENTS

1.39 REGIONAL ENGINEER

1.40 SCOPE OF SERVICES

1.41 SERVICES

1.42 SPECIFIC RATES OF COMPENSATION

1.43 STATEMENT OF INTEREST

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1.44 SUBCONSULTANT

1.45 SUPPLEMENTAL AGREEMENT

1.46 TOTAL AGREEMENT AMOUNT

1.47 UNIT OF WORK

1.48 WORK

1.49 UPPER LIMIT OF COMPENSATION

1.50 WORK ORDER

2.1 CONSULTANT OFFICE AND PERSONNEL REQUIREMENTS

2.10 ENDORSEMENT OF DOCUMENTS

2.11 EXECUTION OF THE CONTRACT

2.12 QUALIFICATION OF PERSONNEL

2.13 QUALITY ASSURANCE AND QUALITY CONTROL (QA/QC) PLAN

2.14 EMPLOYMENT OF THE DEPARTMENT’S PERSONNEL

2.15 COVENANT AGAINST CONTINGENT FEES

2.16 COVENANT OF INTEREST

2.17 CONTINUING OBLIGATION

2.2 SERVICE REQUIREMENTS

2.20 AUTHORIZATION AND APPROVAL

2.21 PROGRESS REPORTS AND ADJUSTMENTS TO PROJECT SCHEDULE

2.22 RELATIONSHIPS WITH OTHERS

2.23 RIGHT TO ENTER

2.24 SUBLETTING, ASSIGNMENT OR TRANSFER

2.25 PUBLIC UTILITIES

2.26 ACCURACY OF PROFESSIONAL SERVICES AND PROFESSIONAL LIABILITY

INSURANCE

2.27 POLICIES AND PROCEDURES

2.28 REVIEWS AND ACCEPTANCES

2.29 REVISIONS OF PLANS, SPECIFICATIONS OR ESTIMATES

2.30 CADD FILES

2.4 LEGAL OBLIGATIONS

2.40 COMPLIANCE WITH STATE AND OTHER LAWS

2.41 FELONY CONVICTIONS

2.42 DELINQUENT PAYMENT

2.43 CONFLICTS OF INTEREST

2.44 ENVIRONMENTAL PROTECTION ACT

2.45 NEGOTIATIONS

2.46 INDUCEMENTS

2.47 REVOLVING DOOR PROHIBITION

2.48 DISCLOSURE

2.49 REPORTING ANTI-COMPETITIVE PRACTICES

2.50 CONFIDENTIALITY

2.51 CONFIDENTIAL AND PROPRIETARY INFORMATION

2.52 INSIDER INFORMATION

2.53 BRIBERY

2.54 MULTI-YEAR CONTRACTS

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2.55 EDUCATIONAL LOAN

2.56 BID RIGGING/BID ROTATING

2.57 INTERNATIONAL ANTI-BOYCOTT

2.58 EXPATRIATED ENTITIES

2.59 DRUG FREE WORKPLACE

2.60 FEDERAL AND STATE CERTIFICATIONS REGARDING LOBBYING

2.61 CONTROL OF PROPERTY

2.62 DEBARMENT

2.63 PROMPT PAYMENT

2.64 TRAINING AND APPRENTICESHIP PROGRAMS

2.65 PREVAILING WAGE

2.66 COST PRINCIPLES AND COST ACCOUNTING STANDARDS

2.67 DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION

2.68 NONDISCRIMINATION

2.69 ILLINOIS HUMAN RIGHTS ACT – EQUAL EMPLOYMENT OPPORTUNITY

2.70 HEADGEAR, VEST AND FOOTWEAR POLICY

2.71 INSURANCE OTHER THAN PROFESSIONAL LIABILITY

2.72 INDEMNIFICATION

2.73 COMMUNICATION DISCLOSURE

2.74 TAXES, ROYALTIES AND EXPENSES

2.75 RESPONSIBILITY FOR CLAIMS AND LIABILITY – PROPERTY DAMAGES

2.76 TERMINATION AND ABANDONMENT

2.77 AVAILABILITY OF FUNDS

2.78 SETTLEMENT OF CONSULTANT CLAIMS

2.79 OWNERSHIP OF DOCUMENTS

2.80 RETENTION OF RECORDS

2.9 METHODS OF PAYMENT

2.90 PAYMENT METHODS

2.91 PARTIAL PAYMENTS/INVOICES

2.92 FINAL PAYMENT

2.93 ADJUSTMENT OF UPPER LIMIT OF COMPENSATION

2.94 ITEMS ELIGIBLE FOR REIMBURSEMENT AS CONSULTANT’S COST

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PREAMBLE

Since the SERVICES contemplated under the AGREEMENT are professional in nature, it is understood the CONSULTANT, acting as an individual, partnership, firm or other legal entity, is a licensed professional and will be governed by and follow all relevant professional ethics standards in their relationship with the DEPARTMENT. The DEPARTMENT acknowledges this professional status, with the duty to adhere to rigorous ethical and professional standards, by entering into an AGREEMENT on the basis of the qualifications and experience of CONSULTANT, with COMPENSATION determined by mutually satisfactory negotiations.

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SECTION 1: DEFINITIONS

Wherever used in these Standard AGREEMENT Provisions for CONSULTANT SERVICES, hereinafter referred to as the "STANDARD PROVISIONS", or any documents where these STANDARD PROVISIONS pertain or govern, the following terms and abbreviations shall be defined as follows:

1) ACTUAL COSTS

The CONSULTANT'S ACTUAL COSTS, directly attributable and properly applicable to the conduct of the CONSULTANT'S business in the performance of the AGREEMENT and in accordance with general accounting practices, including direct salary costs, direct non-salary costs, indirect salary costs and indirect non-salary costs.

2) ADDITIONAL COMPENSATION

Payment for ADDITIONAL SERVICES.

3) ADDITIONAL SERVICES

Any SERVICE or action required of the CONSULTANT which is not identified in the AGREEMENT or any SUPPLEMENTAL AGREEMENT.

4) AGREEMENT

The legal instrument or negotiated CONTRACT defining the obligations and considerations of the signatory parties. The term "AGREEMENT" includes all

SUPPLEMENTAL AGREEMENTS.

5) APPROVING PARTY

Parties other than contracting parties upon whose approval or acceptance the

DEPARTMENT and CONSULTANT must depend in the advancement of the

SERVICES.

6) AUTHORITY TO PROCEED

After EXECUTION, the initial written authorization from the DEPARTMENT to the CONSULTANT to proceed with the SERVICES.

7) BUREAU CHIEF

The individual of the DEPARTMENT who has jurisdiction over the SERVICES in the Central Offices and the authority to approve, per DEPARTMENT policy, WORK

ORDERS, ADDITIONAL SERVICES OR CHANGES.

8) CALENDAR DAYS

The total elapsed days including Saturdays, Sundays and Legal Holidays.

9) CHANGE

An addition to, reduction of, or revision in the scope, complexity, character or duration of the SERVICES identified in either the AGREEMENT or any SUPPLEMENTAL

AGREEMENT.

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10) CODE OF FEDERAL REGULATIONS (CFR)

The codification of the general and permanent rules and regulations (sometimes called administrative law) published in the Federal Register by the executive departments and agencies of the federal government of the United States.

11) CONFIDENTIAL AND PROPRIETARY INFORMATION

Any and all present and future knowledge or information of any type, regardless of the manner of storage or transmittal, relating to the execution, enforcement, formulation, and decision-making process or any other related aspect of the operations, programs, procedures, or similar internal administrative activities of the DEPARTMENT or any of its divisions and organizational components. This shall specifically include without limitation, all types of such information stored or conveyed through DEPARTMENT databases, e-mail systems, electronic file directories, hard copy document file systems, oral or written communication with DEPARTMENT staff, CONSULTANTs, or other parties. However, CONFIDENTIAL AND PROPRIETARY INFORMATION does not include information or knowledge which the DEPARTMENT identifies as available for unrestricted public use. For purposes of this AGREEMENT, a “person” shall include individuals, partnerships, trusts, corporations or any other form of association or entity.

12) COMPENSATION

The monetary amount to be paid by the DEPARTMENT to the CONSULTANT for SERVICES set forth in the AGREEMENT.

13) CONSTRUCTION SECTION

A portion of, or an entire DESIGN SECTION, between designated limits, for which construction plans are to be prepared.

14) CONSULTANT

Any individual, sole proprietorship, firm, partnership, corporation, association, or other legal entity prequalified by the DEPARTMENT and permitted by law to practice the profession of architecture, engineering, or land surveying and provide those services, as a party to the AGREEMENT.

15) CONTRACT

The written AGREEMENT between the DEPARTMENT and the CONSULTANT setting forth the obligations of the parties, including, but not limited to, the performance of the SERVICES, the furnishing of labor and materials, and the basis of payment (See

AGREEMENT).

16) CONTRACTOR

The individual, firm, partnership, or corporation contracting with the DEPARTMENT for performance of the prescribed WORK (construction activities).

17) COST

The ACTUAL COSTS of labor, direct costs, and overhead associated with the

SERVICES.

http://en.wikipedia.org/wiki/United_States_administrative_law http://en.wikipedia.org/wiki/Federal_Register http://en.wikipedia.org/wiki/Federal_government_of_the_United_States

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18) DAMAGES

The direct costs that follow proximately from a breach of the standard of care set forth in Section 2.26. Direct costs include, but are not limited to, all actual costs to correct WORK affected by a breach, and all delay and other time-related costs paid by the DEPARTMENT because of a breach. The total direct costs will not include the value of any betterment resulting from the correction of the WORK, or those costs that would have been incurred had an omitted feature, system or equipment been made a part of the CONTRACT let to the CONTRACTOR to perform the WORK. The CONSULTANT will be liable for special or consequential damages in addition to DAMAGES when special circumstances and conditions are expressly recognized by the CONSULTANT and the DEPARTMENT, and the intent for the CONSULTANT to be liable for said damages is expressly set forth in this AGREEMENT. This definition does not apply to Sections 2.71 and 2.72.

19) DEPARTMENT

The Department of Transportation of the State of Illinois.

20) DESIGN SECTION

A geographic location or area between designated termini or limits for which the professional SERVICES specified in the AGREEMENT are to be performed by the

CONSULTANT.

21) DIRECTOR

The DIRECTOR of the Division or Office of the DEPARTMENT who is in charge of the SERVICES under the AGREEMENT.

22) ERROR

A failure to provide professional SERVICES in accordance with that degree of care and skill ordinarily exercised under similar conditions excluding, however, OMISSIONS.

23) EXECUTION

The signing of the CONTRACT.

24) FAPG

Federal-Aid Policy Guide.

25) FHWA

The Federal Highway Administration of the United States Department of Transportation

(DOT).

26) FIXED FEE

A negotiated dollar amount to cover profit and business expenses not paid for otherwise.

27) KEY PERSONNEL

The CONSULTANT’S personnel specified in the STATEMENT OF INTEREST and in the AGREEMENT who are considered essential to the SERVICES being performed.

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28) LIAISON MANAGERS

The duly authorized representatives of the DEPARTMENT and the CONSULTANT charged with the day-to-day administration of the terms of the AGREEMENT. For most PROJECTS this will be the Project Manager.

29) NEGLIGENCE

The OMISSION or neglect of reasonable precaution, care or action in accordance with that degree of care and skill ordinarily exercised under similar conditions.

30) OMISSION

A failure to provide professional SERVICES in accordance with that degree of care and skill ordinarily exercised under similar conditions whereby there is a failure to indicate on drawings, specifications or other products of professional SERVICES the requirement for a feature, system or equipment, which is necessary to the complete function of a PROJECT. This definition does not apply to Sections 2.71 and 2.72.

31) PHASE

A portion of the SERVICES segregated in the AGREEMENT for sequencing purposes (i.e., such as a corridor report, design report or contract plans).

32) PROFESSIONAL TRANSPORTATION BULLETIN

The official Notice of the DEPARTMENT’S need for Architectural, Engineering and Land Surveying SERVICES.

33) PROGRESS REPORT

A comprehensive description submitted by the CONSULTANT, in a form and at intervals specified by the DEPARTMENT, comparing actual progress with scheduled progress.

34) PROJECT

The proposed development which is the subject of the SERVICES stipulated in the AGREEMENT. It may be comprised of one or more DESIGN or CONSTRUCTION

SECTIONS.

35) PROJECT SCHEDULE

A comprehensive description of all significant SERVICES required of the CONSULTANT and of all actions required of the DEPARTMENT and APPROVING PARTIES by the obligations of the AGREEMENT, together with the durations and/or dates for performing these SERVICES and actions.

36) QUALITY ASSURANCE

All those planned and systematic actions to provide adequate confidence a structure, system, or component will perform satisfactorily in service.

37) QUALITY CONTROL

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A system for maintaining desired standards in a product or process, especially by inspecting samples of the product.

38) RECORD DOCUMENTS

The documents sealed by a person, duly licensed or registered in the appropriate category by the Department of Professional Regulation of the State of Illinois, will be the Documents of Record for the PROJECT. Documents reproduced by any method shall not supersede the Document of Record.

39) REGIONAL ENGINEER

The Individual of the DEPARTMENT who has jurisdiction over the SERVICES of a State’s Region and the authority to approve, per DEPARTMENT policy, any WORK ORDER, ADDITIONAL SERVICES or CHANGES.

40) SCOPE OF SERVICES

All SERVICES and actions required of the CONSULTANT by the obligations of the

41) SERVICES

SERVICES provided by a CONSULTANT or in their behalf in the performance of studies, surveys, assessments, evaluations, consultations, inspections, scheduling, sequencing, or training; and/or: The preparation of reports, opinions, recommendations, permit applications, maps, drawings, designs, specifications, manuals, instructions, computer programs for designated systems, or review of construction change orders;

or the sampling, testing, monitoring, or QUALITY CONTROL necessary to perform any of the SERVICES listed above. SERVICES do not include construction WORK.

42) SPECIFIC RATES OF COMPENSATION

Specific hourly rates at which the CONSULTANT is to be paid for each class of employee directly engaged in SERVICES. Such rates of pay include the CONSULTANT'S payroll, overhead and FIXED FEE.

43) STATEMENT OF INTEREST

The CONSULTANT’S official communication expressing their desire to be considered for selection of SERVICES advertised in the PROFESSIONAL TRANSPORTATION BULLETIN in accordance with the DEPARTMENT’S requirements for submittal.

44) SUBCONSULTANT

Any independent professional firm, person or organization who, with the approval of the DEPARTMENT, performs a part of the SERVICES and/or work for the CONSULTANT.

45) SUPPLEMENTAL AGREEMENT

An AGREEMENT modifying the existing AGREEMENT.

46) TOTAL AGREEMENT AMOUNT

The costs of all SERVICES including SUBCONSULTANTS for a specific PHASE of an

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47) UNIT OF WORK

A measurement of SERVICES, such as Kilometers (miles) of centerline or base line, meters (feet) of borings, geotechnical or sub-surface exploration testing and sampling, laboratory testing, and ground radar penetration.

48) WORK

Services, labor, materials, transportation and equipment necessary for the construction of the PROJECT to be provided by a construction CONTRACTOR. WORK includes sole responsibility for all construction means, methods and procedures and construction site safety.

49) UPPER LIMIT OF COMPENSATION

The total COMPENSATION in the AGREEMENTS which cannot be exceeded without revising the AGREEMENT.

50) WORK ORDER

A written authorization by the DEPARTMENT to the CONSULTANT to proceed with the SERVICES for each separate job issued under the miscellaneous WORK ORDER AGREEMENT. WORK ORDERS contain the following information:

a) Location and description of the job

b) Compensation for the SERVICES

c) Submittal date of the WORK ORDER

d) Completion date of the SERVICES

Each WORK ORDER is signed by the DEPARTMENT.

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SECTION 2: GENERAL CLAUSES AND COVENANTS

2.1 CONSULTANT OFFICE AND PERSONNEL REQUIREMENTS

2.10 ENDORSEMENT OF DOCUMENTS

The CONSULTANT will endorse and seal all final reports, contract plans, maps, right-of-way plats, special provisions for construction contract documents and final cost estimates. Such endorsements must be made by a person, duly licensed or registered in the appropriate category by the Department of Professional Regulation of the State of Illinois, being in the full-time employ of the CONSULTANT and responsible for the portion of the SERVICES for which license registration is required. These sealed documents will serve as the RECORD DOCUMENTS for the SERVICES covered by the terms of the AGREEMENT.

2.11 EXECUTION OF THE CONTRACT

The DEPARTMENT will, in accordance with the rules governing the DEPARTMENT procurements, execute the CONTRACT and shall be the sole entity having the authority to accept performance and make payments under the CONTRACT.

Execution of the CONTRACT by the Chief Procurement Officer or the State Purchasing Officer is for approval of the procurement process and execution of the CONTRACT by the DEPARTMENT. Neither the Chief Procurement Officer nor the State Purchasing Officer shall be responsible for administration of the CONTRACT or determinations respecting performance or payment, thereunder, except as otherwise permitted in the Illinois Procurement Code.

2.12 QUALIFICATION OF PERSONNEL

a) The CONSULTANT shall employ only persons duly licensed or registered in the appropriate category in responsible charge of all elements of the SERVICES, for which Illinois Statutes require license or registration, and further shall employ only well qualified persons in responsible charge of any elements of the SERVICES, all subject to DEPARTMENT approval.

b) The CONSULTANT’S KEY PERSONNEL specified by name in the

AGREEMENT shall be considered essential to the SERVICES being performed. If, for any reason, substitution of a key person becomes necessary, the CONSULTANT shall provide advance written notification of the substitution to the REGIONAL ENGINEER or BUREAU CHIEF. Such written notification shall include the proposed successor’s name and resume of their qualifications.

The DEPARTMENT shall have the right to approve or reject the proposed successor.

c) The CONSULTANT shall report within 15 WORKING DAYS that a key person is no longer employed by the CONSULTANT and hence will no longer be available to perform SERVICES on the PROJECT. The CONSULTANT shall provide the successor’s name and resume expeditiously, but within 60 days of the key person no longer being available.

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d) If at any time subsequent to execution of the CONTRACT, CONSULTANT or SUBCONSULTANT loses its prequalification for a category of SERVICES to be performed on the CONTRACT, CONSULTANT shall notify the DEPARTMENT, in writing, of the CONSULTANT or SUBCONSULTANT’s loss of prequalification relevant to the CONTRACT. Notice to the DEPARTMENT shall be made no more than 15 working days from the date of loss of prequalification.

e) The CONSULTANT’S failure to comply with this section may result in termination of the AGREEMENT and/or loss of prequalification.

2.13 QUALITY ASSURANCE AND QUALITY CONTROL (QA/QC) PLAN

The CONSULTANT’S QUALITY ASSURANCE and QUALITY CONTROL (QA/QC) Plan for this PROJECT was presented by the CONSULTANT during the negotiation process and was accepted by the DEPARTMENT. The CONSULTANT must adhere to this QA/QC Plan. Failure to follow the QA/QC Plan could result in termination, changes to the prequalification status and the loss of all or part of the COMPENSATION associated with the QA/QC Plan.

The CONSULTANT will be required to indicate in writing that there was compliance with the approved plan. The statement of compliance must be sent to the administrating district or office at each milestone submittal (preliminary plans, draft reports, soil report, drainage study, etc.) This statement of compliance can be in a form of an additional statement in the transmittal letter when submitting the preliminary plans or draft report to the DEPARTMENT. However, the final statement of compliance shall be on the form prescribed by the DEPARTMENT.

The QA/QC Plan may be modified by the CONSULTANT. Written acceptance of this modified QA/QC Plan must be signed by the DEPARTMENT’S LIAISON MANAGER.

2.14 EMPLOYMENT OF THE DEPARTMENT'S PERSONNEL

The CONSULTANT will not employ any person or persons currently employed by the DEPARTMENT for any SERVICES required by the terms of the AGREEMENT without the written permission of the DEPARTMENT.

2.15 COVENANT AGAINST CONTINGENT FEES

The CONSULTANT warrants they have not employed or retained any company or person other than a bona fide employee working solely for the CONSULTANT to solicit or secure the AGREEMENT, and they have not paid or agreed to pay any company or person other than a bona fide employee working solely for the CONSULTANT any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of the AGREEMENT. For breach or violation of their warranty, the DEPARTMENT shall have the right to annul the AGREEMENT without liability or, in its discretion, to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

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2.16 COVENANT OF INTEREST

The CONSULTANT covenants they have no public or private interest and shall not acquire directly or indirectly any such interest which would conflict in any manner with the performance of their SERVICES under the AGREEMENT.

2.17 CONTINUING OBLIGATION

The CONSULTANT agrees if, because of death or any other occurrence, it becomes impossible for any principal or principals of the CONSULTANT to render the SERVICES set forth in the AGREEMENT, neither the CONSULTANT nor the surviving principals shall be relieved of their obligations to complete performance there under. However, in such an occurrence, the DEPARTMENT at its own option may terminate the AGREEMENT if it is not furnished competent evidence the SERVICES can still be acceptably finished as scheduled.

2.2 SERVICE REQUIREMENTS

2.20 AUTHORIZATION AND APPROVAL

The DEPARTMENT is not liable and will not pay the CONSULTANT for any SERVICES performed prior to the date of AUTHORITY TO PROCEED.

2.21 PROGRESS REPORTS AND ADJUSTMENTS TO PROJECT SCHEDULE

a) The CONSULTANT and the DEPARTMENT agree to meet the PROJECT SCHEDULE in the AGREEMENT. Timeliness in meeting the PROJECT SCHEDULE is a factor considered in the CONSULTANT’S performance rating.

An unfavorable performance rating is a penalty reflected when future assignments are being considered.

b) On preliminary engineering PROJECTS, the CONSULTANT will submit a monthly PROGRESS REPORT to the DEPARTMENT with each invoice, showing progress to the first day of the month in comparison to the PROJECT SCHEDULE in the format required by the DEPARTMENT. However, if agreed to by the CONSULTANT and the LIAISON MANAGER, the PROGRESS REPORT may be submitted on a four (4) week cycle rather than a monthly cycle. The PROGRESS REPORT shall show scheduled periods for each of the elements of the CONSULTANT'S SERVICES. Prior to starting the SERVICES, the CONSULTANT shall agree with the DEPARTMENT on the percentage each SERVICE element is of the whole. PROGRESS REPORTS will include a statement summarizing the SERVICES performed during the Report period and an outline of the SERVICE expected to be performed during the following period.

c) The CONSULTANT may be required to meet with DEPARTMENT staff on a monthly or bi-monthly basis to discuss the progress of SERVICES accomplished to date and the proposed direction the study will take the

Standard Agreement Provisions for Consultant Services PAGE 10 following months. A monthly or bi-monthly progress meeting can be canceled by notification from the DEPARTMENT.

d) In the event of delays due to unforeseeable causes beyond the control of and without fault or negligence of the CONSULTANT (such as acts of God or a public enemy, acts of the DEPARTMENT or APPROVING PARTY not resulting from the CONSULTANT'S unacceptable SERVICES, fire, strikes, flood and the like) no claim for DAMAGES shall be made by either party. The anticipated date of completion of the SERVICES, including review time (if applicable), will be stated in the AGREEMENT. Termination of the AGREEMENT or adjustment of the fee, excluding the FIXED FEE for labor, for the remaining SERVICES may be requested by either party if overall delay from only these unforeseeable causes prevents completion of the SERVICES within six months after this specified completion date. The request for an adjustment must be made in writing after the six months have elapsed, and only the SERVICES remaining at that time, shall be adjusted.

e) DURATION OF CONTRACT

In accordance with Section 20-60(a) of the Illinois Procurement Code, 30 ILCS 500 et seq, an AGREEMENT may be entered into for any period of time deemed to be in the best interests of the DEPARTMENT but not exceeding 10 years inclusive of proposed AGREEMENT renewals and extensions.

f) If delays occur due to any cause preventing compliance with the PROJECT

SCHEDULE, the CONSULTANT, except on construction engineering PROJECTS, shall apply in writing to the DEPARTMENT for an extension of time. If approved, the PROJECT SCHEDULE shall be revised accordingly.

Such extension of time of completion shall in no way be construed to operate as a waiver on the part of the DEPARTMENT of any of its rights in the

2.22 RELATIONSHIP WITH OTHERS

The CONSULTANT shall cooperate fully with the DEPARTMENT, CONSULTANTS on adjacent PROJECTS, municipalities and local government officials, public utility companies and others as may be directed by the DEPARTMENT. These shall include attendance at meetings, discussions and hearings as requested by the DEPARTMENT. The FHWA shall have access to the SERVICES and shall be furnished information as their interests may require.

2.23 RIGHT TO ENTER

In accordance with DEPARTMENT practices, the CONSULTANT will notify all property owners of intent to enter for subsurface utility engineering, subsurface investigations, surveys, or field investigations and will furnish a detailed record of all such contacts to the DEPARTMENT on a monthly basis. If owners cannot be found, the occupant will be notified. The DEPARTMENT will supply requested documents identifying the CONSULTANT as the DEPARTMENT'S agent. If the property owner or occupant denies the CONSULTANT permission to enter or if neither can be

Standard Agreement Provisions for Consultant Services PAGE 11 found, such incident will be reported to the DEPARTMENT. The DEPARTMENT will initiate necessary procedures after receipt of such report.

2.24 SUBLETTING, ASSIGNMENT OR TRANSFER

a) Neither this AGREEMENT nor any portion of the SERVICES under the AGREEMENT shall be sublet, sold, transferred, assigned or otherwise disposed of to other firms or successors in interest except with prior written consent of the DEPARTMENT. The DEPARTMENT’S written consent shall in no way relieve the CONSULTANT from their primary responsibility for the performance and accuracy of the SERVICES. Subcontracting more than 50% of the SERVICES will not be allowed, except in special cases where it can be justified.

b) SUBCONSULTANTS must be prequalified in accordance with the

DEPARTMENT requirements. For specialized SERVICES that are required but which do not fall into the areas of prequalification of the DEPARTMENT, a non-prequalified firm may be used with DEPARTMENT approval.

c) CONSULTANT shall utilize the SUBCONSULTANT Standard Agreement

Template available from the DEPARTMENT to enter into an AGREEMENT for SUBCONSULTANT SERVICES with SUBCONSULTANT. However, CONSULTANT may use a contract template other than the SUBCONSULTANT Standard Agreement Template if CONSULTANT first receives prior written approval from the DEPARTMENT.

d) A copy of the signed and dated AGREEMENT for SUBCONSULTANT

SERVICES must be furnished to the DEPARTMENT and approved before any payments will be made to the CONSULTANT for SUBCONSULTANT

SERVICES.

e) The DEPARTMENT will not reimburse the CONSULTANT any amount in excess of their actual payments to the SUBCONSULTANT made within the limits and provisions of the AGREEMENT for SUBCONSULTANT SERVICES approved by the DEPARTMENT. The CONSULTANT'S costs for administering and supervising the SUBCONSULTANT’S SERVICES are eligible for profit for administering and supervising SUBCONSULTANT SERVICES.

f) No DEPARTMENT approval of the AGREEMENT for SUBCONSULTANT

SERVICES will be necessary to employ an individual professional specialist on a per diem basis or to utilize nonprofessional SERVICES such as reproductions, printing, scale models and other routine SERVICES normally performed or provided by others, provided payment for such SERVICES is already included in the COMPENSATION.

g) The CONSULTANT will include clauses in its AGREEMENT for

SUBCONSULTANT SERVICES with any SUBCONSULTANT stipulating the SERVICES under the AGREEMENT shall not be sublet, sold, transferred, Standard Agreement Provisions for Consultant Services PAGE 12 assigned or otherwise disposed of to other firms except with prior written consent of the DEPARTMENT.

h) The CONSULTANT must provide a SUBCONSULTANT Utilization plan identifying all proposed SUBCONSULTANTS, regardless of status as a DBE, and list the information described in Section 2.67 for each SUBCONSULTANT.

2.25 PUBLIC UTILITIES

a) Where facilities of utility companies, other than railroads, require rearrangement in connection with the proposed construction, the CONSULTANT shall make the necessary contacts and confer with the owners regarding the requisite revisions in their facilities, apprising the DEPARTMENT of the results of all such contacts. The CONSULTANT'S contacts with railroads shall be made only through the DEPARTMENT

b) The CONSULTANT shall make no commitments binding upon the

DEPARTMENT.

c) The DEPARTMENT will conduct all negotiations with utilities and railroads. The

CONSULTANT will participate in such negotiations when requested by the

d) These provisions do not apply to construction engineering SERVICES.

2.26 ACCURACY OF PROFESSIONAL SERVICES AND PROFESSIONAL LIABILITY

INSURANCE

a) The CONSULTANT and DEPARTMENT agree to work together on a basis of trust, good faith and fair dealing to achieve the intent of this AGREEMENT.

Each party shall take such actions reasonably necessary to enable the accurate completion of the professional SERVICES and other obligations provided for under this AGREEMENT as intended in a timely, efficient and economical manner.

b) The CONSULTANT will guard against ERRORS and OMISSIONS in the performance of the professional SERVICES under this AGREEMENT. The CONSULTANT will apply appropriate care to the performance of the professional SERVICES and the preparation of all SERVICE products called for in this AGREEMENT, including but not limited to, plans and drawings, contract documents and other instruments to be furnished in the course of performance of the SERVICES. The CONSULTANT shall be governed by that degree of care, knowledge, skill, and diligence other reputable members of the engineering profession would ordinarily exercise under like circumstances within the State of Illinois. The CONSULTANT will be responsible to the DEPARTMENT for DAMAGES arising from ERRORS and OMISSIONS caused by the CONSULTANT’S NEGLIGENCE in the performance of the professional SERVICES and preparation of SERVICE products under this AGREEMENT.

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When agreed, the CONSULTANT will be liable for special or consequential damages defined in the AGREEMENT.

c) Acceptance of the SERVICES will not relieve the CONSULTANT of the responsibility for subsequent correction of any such ERRORS, OMISSIONS, and/or negligent acts or of his/her liability for loss or damage resulting there from. In the event any dispute or claim, related to construction or the construction contracts, should arise between any of the parties to this AGREEMENT, each party agrees to exercise good faith efforts to resolve the matter fairly, amicably and in a timely manner.

d) This AGREEMENT shall continue as an open CONTRACT and the obligations created herein shall remain in full force and effect until the completion of construction or any PHASE of professional SERVICES performed by others based upon SERVICES or SERVICE product provided by the CONSULTANT.

All obligations of the CONSULTANT accepted under this AGREEMENT shall cease if construction or subsequent professional SERVICES are not commenced within 5 years after final delivery of professional SERVICES or work product pursuant to this AGREEMENT.

e) At any time during construction or during any PHASE of professional

SERVICES performed by others based on SERVICES or SERVICE product provided by the CONSULTANT, the CONSULTANT will confer with the DEPARTMENT and others upon request for the purpose of interpretation or providing clarification of the SERVICES or work product provided by the

CONSULTANT.

f) The DEPARTMENT will notify the CONSULTANT of any ERROR or

OMISSION believed by the DEPARTMENT to be caused by the NEGLIGENCE, ERRORS and/or OMISSIONS of the CONSULTANT as soon as practicable after discovery. Notification may be given by the most practical means deemed suitable by the DEPARTMENT. The CONSULTANT will designate and keep current the name of an individual with proper address and telephone number for purposes of notification hereunder. The notification will advise the CONSULTANT of the nature of the matter, the action sought from the CONSULTANT and the time constraints required for response. The CONSULTANT agrees to contact the DEPARTMENT promptly in accordance with the time constraints contained in the notification, to undertake necessary construction site visits and inspections, to dispatch personnel to appropriate DEPARTMENT office locations for resolution purposes, and to complete all corrective work necessary to resolve the matter notwithstanding any disagreement or dispute as to NEGLIGENCE or ERROR and/or OMISSION. In the event it is later determined the CONSULTANT was not negligent, the CONSULTANT will be compensated for ADDITIONAL SERVICES performed in accordance with the payment provisions of this AGREEMENT. The DEPARTMENT reserves the right to take immediate action to remedy any ERROR or OMISSION if notification is not successful; if the CONSULTANT fails to respond to a notification; or if the conditions created by the ERROR or

Standard Agreement Provisions for Consultant Services PAGE 14

OMISSION are in need of urgent correction to avoid accumulation of additional construction costs or damage to state property and reasonable notice is not practicable.

g) The DEPARTMENT and the CONSULTANT will work together on a basis of good faith and fair dealings. When a dispute arises concerning damages caused by ERRORS or OMISSIONS, the CONSULTANT may choose to appeal. The fact the CONSULTANT has provided assistance in the resolution of the problem will not be construed as absolving the CONSULTANT of damages. The procedure for dispute resolution shall be governed by the CONSULTANT-DEPARTMENT dispute resolution process for ERRORS and/or OMMISSIONS outlined in the Illinois Department of Transportation Bureau of Design and Environment Manual, presently in Section 8-4.01(e) of the Manual.

h) Professional Liability Insurance. This policy will provide coverage for all claims the CONSULTANT shall become legally obligated to pay resulting from any negligent act, ERROR or OMISSION related to CONSULTANT’S professional SERVICES required under this AGREEMENT.

Construction Cost under $1,000,000, (Preliminary Engineering Cost less than $100,000) $250,000 per occurrence $250,000 aggregate

Construction Cost under $10,000,000, (Preliminary Engineering Cost less than $1,000,000) $500,000 per occurrence $1,000,000 aggregate

Construction Cost over $10,000,000, (Preliminary Engineering Cost over $1,000,000) $1,000,000 per occurrence $2,000,000 aggregate

2.27 POLICIES AND PROCEDURES

The CONSULTANT shall perform the SERVICES required under the AGREEMENT in accordance with the policies and procedures of the publications available on the DEPARTMENT’S website, in effect at the time of the AGREEMENT. CONSULTANT shall also perform SERVICES in accordance with other directives current at the time of the AGREEMENT and made available to the CONSULTANT by the DEPARTMENT. In case of conflict in the references, the CONSULTANT shall identify them to the DEPARTMENT and follow the instructions furnished by the

2.28 REVIEWS AND ACCEPTANCES

SERVICES performed by the CONSULTANT shall be subject to review and acceptance in stages as required by the DEPARTMENT. The DEPARTMENT reserves the right to review and to accept on the part of FHWA and other affected

Standard Agreement Provisions for Consultant Services PAGE 15 public agencies, railroads and utilities insofar as the interest of each is concerned.

Acceptance shall not relieve the CONSULTANT of their professional obligation to correct at their expense any ERROR, OMISSIONS and/or negligent acts in their SERVICES or of their liability for the losses resulting therefrom as set forth in Section 2.26.

2.29 REVISIONS OF PLANS, SPECIFICATIONS OR ESTIMATES

a) The DEPARTMENT may, upon written notice and without invalidating the AGREEMENT, require changes resulting in the revision or abandonment of SERVICES already performed by the CONSULTANT or require other elements of SERVICE not originally contemplated and for which full COMPENSATION is not provided in any portion of the AGREEMENT.

b) The value of such changes, to the extent not reflected in other

COMPENSATION to the CONSULTANT, shall be determined by the contracting and approving parties in accordance with methods of payment set forth in the AGREEMENT, and the COMPENSATION shall be adjusted accordingly. The DEPARTMENT is not obligated to pay the CONSULTANT for SERVICES performed on CHANGES prior to written authorization by the

2.30 CADD FILES

The DEPARTMENT CADD configuration operates on Micro Station and GEOPAK software. CONSULTANT should contact the appropriate Project Manager for project related information with respect to using Micro Station and GEOPAK for the CONTRACT. Periodic updates will be posted on DEPARTMENT’S website concerning the use of CADD software. Notification of changes to software requirements will be sent out through the DEPARTMENT CADD Support subscription service.

2.4 LEGAL OBLIGATIONS

2.40 COMPLIANCE WITH STATE AND OTHER LAWS

The CONSULTANT shall at all times observe and comply with all Federal and State laws, local laws, orders, ordinances and regulations which in any manner affect the conduct of SERVICES, or which may have an affect over the PROJECT. The CONSULTANT shall indemnify and save harmless the State and all of its officers, agents, employees and servants against any claim or liability arising from or based on the breach of such law, ordinance, regulation, order, whether by the CONSULTANT or anyone subject to the control of the CONSULTANT. A new law change may cause an increase in the cost and result in a SUPPLEMENTAL AGREEMENT. The assurances hereinafter made by the CONSULTANT are each a material representation of fact upon which reliance is placed by the DEPARTMENT

Standard Agreement Provisions for Consultant Services PAGE 16 in entering into this CONTRACT. The DEPARTMENT may terminate the CONTRACT if it is later determined the CONSULTANT rendered a false or erroneous assurance.

2.41 FELONY CONVICTIONS

The CONSULTANT certifies it is not barred from being awarded a contract under 30

ILCS 500/50-10. Section 50-10 prohibits a CONSULTANT from entering into a contract with the DEPARTMENT if the CONSULTANT has been convicted of a felony and five years have not passed from the completion of the sentence for that felony. The CONSULTANT further acknowledges the chief procurement officer may declare the CONTRACT void if this certification is false.

The CONSULTANT also certifies it is not barred from being awarded a contract under 30 ILCS 500/50-10.5. Section 50-10.5 prohibits a CONSULTANT from entering into a contract with the DEPARTMENT if the CONSULTANT, or any officer, director, partner, or other managerial agent of the CONSULTANT has been convicted within the last five years of a felony under the Sarbanes-Oxley Act of 2002 or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953 or is in violation of Subsection (e). The CONSULTANT further acknowledges that the chief procurement officer shall declare the CONTRACT void if this certification is false.

2.42 DELINQUENT PAYMENT

The CONSULTANT certifies it, or any affiliate, is not barred from being awarded a contract under 30 ILCS 500. Section 50-11 prohibits a person from entering into a contract with a state agency if it knows or should know it, or any affiliate, is delinquent in the payment of any debt to the state as defined by the Debt Collection Board. Section 50-12 prohibits a person from entering into a contract with the state agency if it, or any affiliate, has failed to collect and remit Illinois Use Tax on all sales of tangible personal property into the State of Illinois in accordance with the provisions of the Illinois Use Tax Act. The CONSULTANT further acknowledges the contracting state agency may declare the contract void if this certification is false or if the CONSULTANT or any affiliate is determined to be delinquent in the payment of any debt to the state during the term of the contract.

2.43 CONFLICTS OF INTEREST

Section 50-13 of the Illinois Procurement Code provides that:

a) Prohibition. It is unlawful for any person holding an elective office in this State, holding a seat in the General Assembly, or appointed to or employed in any of the offices or agencies of State government and who receives compensation for such employment in excess of 60% of the salary of the Governor of the State of Illinois, or who is an officer or employee of the Capital Development Board or the Illinois Toll Highway Authority, or who is the spouse or minor child of any such person to have or acquire any contract, or any direct pecuniary interest in any contract therein, whether for stationery, printing, paper, or any services, materials, or supplies, that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois or in any contract of the Capital Development Board or the Illinois Toll Highway Authority

Standard Agreement Provisions for Consultant Services PAGE 17

b) Interests. It is unlawful for any firm, partnership, association, or corporation, in which any person listed in subsection (a) is entitled to receive (i) more than 7 1/2% of the total distributable income or (ii) an amount in excess of the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein.

c) Combined interests. It is unlawful for any firm, partnership, association, or corporation, in which any person listed in subsection (a) together with his or her spouse or minor children is entitled to receive (i) more than 15%, in the aggregate, of the total distributable income or (ii) an amount in excess of 2 times the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein.

d) Appointees and firms. In addition to any provisions of this Code, the interests of certain appointees and their firms are subject to Section 3A-35 of the Illinois Governmental Ethics Act.

e) Securities. Nothing in this Section invalidates the provisions of any bond or other security previously offered or to be offered for sale or sold by or for the State of Illinois.

f) Prior interests. This Section does not affect the validity of any contract made between the State and an officer or employee of the State or member of the General Assembly, his or her spouse, minor child, or other immediate family member living in his or her residence or any combination of those persons if that contract was in existence before his or her election or employment as an officer, member, or employee. The contract is voidable, however, if it cannot be completed within 365 days after the officer, member, or employee takes office or is employed.

g) Penalty. A person convicted of a violation of this Section is guilty of a business offense and shall be fined not less than $1,000 nor more than $5,000.

(Source: P.A. 95-331, eff. 8-21-07.)

2.44 ENVIRONMENTAL PROTECTION ACT

ILCS 50/50-14. Section 50-14 prohibits a CONSULTANT from entering into a contract with the DEPARTMENT if the CONSULTANT has been found by a court or the Pollution Control Board to have committed a willful or knowing violation of the Environmental Protection Act within the last five years. The CONSULTANT further acknowledges the chief procurement officer may declare the CONTRACT void if this certification is false.

2.45 NEGOTIATIONS

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Section 50-15 of the Illinois Procurement Code provides, in pertinent part that: (a) it is unlawful for any person employed in or on a continual contractual relationship with any of the officers or agencies of State government to participate in contract negotiations on behalf of that office or agency with any firm, partnership, association, or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. CONSULTANT certifies that the award and/or execution of this CONTRACT would not cause any violation of Section 50-15, and that CONSULTANT has no knowledge of any facts relevant to the kind of acts prohibited by Section 50-15.

2.46 INDUCEMENTS

Section 50-25 of the Illinois Procurement Code provides any person who offers or pays any money or other valuable thing to any person to induce him or her not to bid on a State contract is guilty of a Class 4 felony. Any person who accepts any money or other valuable thing for not bidding on a State contract or who withholds a bid in consideration of the promise for the payment of money or other valuable thing is guilty of a Class 4 felony. CONSULTANT certifies the award and/or execution of this CONTRACT would not cause any violation of Section 50-25 of the Code, and the CONSULTANT has no knowledge of any facts relevant to the kind of acts prohibited by Section 50-25.

2.47 REVOLVING DOOR PROHIBITION

Section 50-30 of the Illinois Procurement Code provides that Chief procurement officers, associate procurement officers, State purchasing officers, their designees whose principal duties are directly related to State procurement, and executive officers confirmed by the Senate are expressly prohibited for a period of 2 years after terminating an affected position from engaging in any procurement activity relating to the State agency most recently employing them in an affected position for a period of at least 6 months. The prohibition includes but is not limited to: lobbying the procurement process; specifying; bidding; proposing bid, proposal, or contract documents; on their own behalf or on behalf of any firm, partnership, association, or corporation. This Section applies only to those persons who terminate an affected position on or after January 15, 1999. CONSULTANT certifies the award and/or execution of this CONTRACT would not cause any violation of Section 50-30 of the Code, and CONSULTANT has no knowledge of any facts relevant to the kinds of acts prohibited therein.

2.48 DISCLOSURE

Section 50-35 of the Illinois Procurement Code provides that all offers of more than $50,000 shall be accompanied by disclosure of the financial interests of the offeror.

This disclosed information for the successful offeror, will be maintained as public information subject to release pursuant to the Freedom of Information Act.

The financial interests to be disclosed shall include ownership or distributive income share that is in excess of 5.0% or an amount greater than 60% of the annual salary of the Governor, of the offering entity or its parent entity, whichever is less, unless the offeror is a publicly traded entity subject to Federal 10K reporting, in which case

Standard Agreement Provisions for Consultant Services PAGE 19 it may submit its 10K disclosure in place of the prescribed disclosure The disclosure shall include the names, addresses, and dollar or proportionate share of ownership of each person making the disclosure, their instrument of ownership or beneficial relationship, and notice of any potential conflict of interest resulting from the current ownership or beneficial interest of each person making the disclosure having any of the relationships identified in Section 50-35 and on the disclosure form found on the website at: http://www.dot.state.il.us

In addition, all disclosures shall indicate any other current or pending contracts, proposals, leases, or other ongoing procurement relationships the offering entity has with any other unit of state government and shall clearly identify the unit and the contract proposal, lease, or other relationship.

This requirement is fulfilled when CONSULTANT submits Form A-Financial Information and Potential Conflicts of Interest Disclosure and Form B – Other Contracts and Procurement Related Information Disclosure with their STATEMENT OF

INTEREST.

2.49 REPORTING ANTI-COMPETITIVE PRACTICES

Section 50-40 of the Illinois Procurement Code provides that when, for any reason, any vendor, bidder, CONSULTANT, chief procurement officer, State purchasing officer, designee,…