Illinois Administrative Code › Title 35 - ENVIRONMENTAL PROTECTION › Part 661 - GENERAL CONDITIONS OF GRANTS FOR THE FINANCING AND CONSTRUCTION OF PUBLIC WATER SUPPLY FACILITIES › Subpart G - REQUIREMENTS APPLICABLE TO PAYMENT OF GRANTS › Appendix B - Required Provisions (Engineering Agreements)

Current through Register Vol. 48, No. 28, July 12, 2024
1. General
(a) The grantee and the engineer agree that the
				  following provisions shall apply to the work to be performed under this
				  agreement and that such provisions shall supersede any conflicting provisions
				  of this agreement.
(b) This agreement is funded in part by a grant
				  from the Illinois Environmental Protection Agency. Neither the State of
				  Illinois nor the Illinois Environmental Protection Agency (hereinafter Agency)
				  is a party to this agreement.
2. Responsibility of the Engineer
(a) The engineer shall be responsible for the
				  professional quality, technical accuracy, timely completion, and the
				  coordination of all designs, drawings, specifications, reports, and other
				  services furnished by the engineer under this agreement. The engineer shall,
				  without additional compensation, correct or revise any errors or deficiencies
				  in his designs, drawings, specifications, reports and other services.
(b) The engineer shall perform such professional
				  services as may be necessary to accomplish the work required to be performed
				  under this agreement, in accordance with this agreement and applicable Agency
				  requirements.
(c) Approval by the grantee or Agency of drawings,
				  designs, specifications, reports, and incidental engineering work or materials
				  furnished hereunder shall not in any way relieve the engineer of responsibility
				  for the technical adequacy of the work. Neither the grantee's nor Agency's
				  review, approval or acceptance of, nor payment for, any of the services shall
				  be construed to operate as a waiver of any rights under this agreement or of
				  any cause of action arising out of the performance of this agreement, and the
				  engineer shall be and remain liable in accordance with applicable law for all
				  damages to the grantee or Agency caused by the engineer's negligent performance
				  of any of the services furnished under this agreement.
(d) The rights and remedies of the grantee
				  provided for under this agreement are in addition to any other rights and
				  remedies provided by law.
3. Scope of work. Except as may be otherwise specifically
				  limited in this agreement, the services to be rendered by the engineer shall
				  include all services required to complete the task or step in accordance with
				  applicable Agency regulations.
4. Changes.
(a) The grantee may, at any time, by written
				  order, make changes within the general scope of this agreement in the services
				  or work to be performed. If such changes cause an increase or decrease in the
				  engineer's cost of, or time required for, performance of any services under
				  this agreement, whether or not changed by any order, an equitable adjustment
				  shall be made and this agreement shall be modified in writing accordingly. Any
				  claim of the engineer for adjustment under this clause must be asserted in
				  writing within 30 days from the date of receipt by the engineer of the
				  notification of change unless the grantee grants a further period of time
				  before the date of final payment under this agreement.
(b) No services for which an additional
				  compensation will be charged by the engineer shall be furnished without the
				  written authorization of the grantee.
5. Termination.
(a) This agreement may be terminated in whole or
				  in part in writing by either party in the event of substantial failure by the
				  other party to fulfill its obligations under this agreement through no fault of
				  the terminating party; Provided, that no such termination may be effect unless
				  the other party is given (1) not less than (10) days written notice (delivered
				  by certified mail, return receipt requested) of intent to terminate and (2) an
				  opportunity for consultation with the terminating party prior to
				  termination.
(b) This agreement may be terminated in whole or
				  in part in writing by the grantee for its convenience: Provided, That no such
				  termination may be effected unless the engineer is given (1) not less than ten
				  (10) days written notice (delivered by certified mail, return receipt
				  requested) of intent to terminate and (2) an opportunity for consultation with
				  the terminating party prior to termination.
(c) If termination for default is effected by the
				  grantee, an equitable adjustment in the price provided for in this agreement
				  shall be made, but (1) no amount shall be allowed for anticipated profit on
				  unperformed services or other work, and (2) any payment due to the engineer at
				  the time of termination may be adjusted to the extent of any additional costs
				  occasioned to the grantee by reason of the engineer's default. If termination
				  for default is effected by the engineer, or if termination for convenience is
				  effected by the grantee, the equitable adjustment shall include a reasonable
				  profit for services or other work performed. The equitable adjustment for any
				  termination shall provide for payment to the engineer for services rendered and
				  expenses incurred prior to the termination, in addition to termination
				  settlement costs reasonably incurred by the engineer relating to commitments
				  which had become firm prior to the termination.
(d) Upon receipt of a termination action pursuant
				  to paragraphs (a) or (b) above, the engineer shall (1) promptly discontinue all
				  services affected (unless the notice directs otherwise), and (2) deliver or
				  otherwise make available to the grantee all data, drawings, specifications,
				  reports, estimates, summaries, and such other information and materials as may
				  have been accumulated by the engineer in performing this agreement, whether
				  completed or in process.
(e) Upon termination pursuant to paragraphs(a) or
				  (b) above, the grantee may take over the work and prosecute the same to
				  completion by agreement with another party or otherwise.
(f) If, after termination for failure of the
				  engineer to fulfill contractual obligations, it is determined that the engineer
				  had not so failed, the termination shall be deemed to have been effected for
				  the convenience of the grantee. In such event, adjustment of price provided for
				  in this agreement shall be made as provided in paragraph (c) of this
				  clause.
(g) The rights and remedies of the grantee and the
				  engineer provided in this clause are in addition to any other rights and
				  remedies provided by law or under this agreement.
6. Remedies.
(a) Except as may be otherwise provided in this
				  agreement, or as the parties hereto may otherwise agree, all claims,
				  counterclaims, disputes and other matters in question between the grantee and
				  the engineer arising out of or relating to this agreement or the breach thereof
				  will be decided by arbitration in accordance with the Construction Industry
				  Arbitration Rules of the American Arbitration Association then obtaining,
				  subject to the limitations stated in paragraphs (c) and (d) below. This
				  agreement, and any other agreement or consent to arbitrate entered into in
				  accordance therewith as provided below, will be specifically enforceable under
				  the prevailing law of any court having jurisdiction.
(b) Notice of demand for arbitration must be filed
				  in writing with the other party to this Agreement, with the Agency and with the
				  American Arbitration Association. The demand must be made within a reasonable
				  time after the claim, dispute or other matter in question has arisen. In no
				  event may the demand for arbitration be made after the time when institution of
				  legal or equitable proceedings based on such claim, dispute or other matter in
				  question would be barred by the applicable statute of limitations.
(c) All demands for arbitration and all answering
				  statements thereto which include any monetary claim must contain a statement
				  that the total sum or value in controversy as alleged by the party making such
				  demand or answering statement is not more than $200,000 (exclusive of interest
				  and costs). The arbitrators will not have jurisdiction, power or authority to
				  consider, or make findings (except in denial of their own jurisdiction)
				  concerning any claim, counterclaim, dispute or other matter in question where
				  the amount in controversy thereof is more than $200,000 (exclusive of interest
				  and costs) or to render a monetary award in response thereto against any party
				  which totals more than $200,000 (exclusive of interest and costs).
(d) No arbitration arising out of, or relating to,
				  this agreement may include, by consolidation, joinder or in any other manner,
				  any additional party not a party to this agreement.
(e) By written consent signed by all the parties
				  to this agreement and containing a specific reference hereto, the limitations
				  and restrictions contained in paragraphs (c) and (d) above may be waived in
				  whole or in part as to any claim, counterclaim, dispute or other matter
				  specifically described in such consent. No consent to arbitration in respect of
				  a specifically described claim, counterclaim, dispute or other matter in
				  question will constitute consent to arbitrate any other claim, counterclaim,
				  dispute or other matter in question which is not specifically described in such
				  consent or in which the sum or value in controversy exceeds $200,000 (exclusive
				  of interest and costs) or which is with any party not specifically described
				  therein.
(f) The award rendered by the arbitrators will be
				  final, not subject to appeal, and judgement may be entered upon it in any court
				  having jurisdiction thereof.
7. Payment
(a) The engineer may submit payment requests. Such
				  requests shall be based upon the value of the work and services performed by
				  the engineer under this agreement, and shall be prepared by the engineer and
				  supplemented or accompanied by such supporting data as may be required by the
				  grantee.
(b) Upon approval of such payment request by the
				  grantee, payment upon properly certified vouchers shall be made to the engineer
				  as soon as practicable of ninety percent of the amount as determined above:
				  Provided, however, that if the grantee determines that the work under this
				  agreement or any specified task hereunder is substantially complete and that
				  the amount of retained percentages is in excess of the amount considered by him
				  to be adequate for the protection of the grantee, he may at his discretion
				  release to the engineer such excess amount.
(c) Upon satisfactory completion by the engineer
				  of the work called for under the terms of this agreement, and upon acceptance
				  of such work by the grantee, the engineer will be paid the unpaid balance of
				  any money due for such work, including the retained percentages relating to
				  this portion of the work.
(d) Upon satisfactory completion of the work
				  performed hereunder, and prior to final payment under this agreement for such
				  work, or prior settlement upon termination of the agreement, and as a condition
				  precedent thereto, the engineer shall execute and deliver to the grantee a
				  release of all claims against the grantee arising under or by virtue of this
				  agreement, other than such claims, if any, as may be specifically exempted by
				  the engineer from the operation of the release in stated amounts to be set
				  forth therein.
8. Project Design.
(a) In the performance of this agreement, the
				  engineer shall, to the extent practicable, provide for maximum use of
				  structures, machines, products, materials, construction methods, and equipment
				  which are readily available through competitive procurement, or through
				  standard or proven production techniques, methods and processes consistent with
				  paragraphs (C), Competition, and (I) Specifications, of General Condition 21,
				  General conditions for all subagreements, hereof.
(b) The engineer shall not, in the performance of
				  the work called for by this agreement, produce a design or specification such
				  as to require the use of structures, machines, products, materials,
				  construction methods, equipment, or processes which are known by the engineer
				  to be available only from a sole source, unless such use has been adequately
				  justified in writing by the engineer as necessary for the minimum needs of the
				  project.
(c) The engineer shall not, in the performance of
				  the work called for by this agreement, produce a design or specification which
				  would be restrictive in violation of General Condition 21(I)(1), Nonrestrictive
				  specifications. The aforementioned General Condition requires that no
				  specification for bids or statement of work may be written in such a manner as
				  to contain proprietary, exclusionary or discriminatory requirements other than
				  those based upon performance, unless such requirements are necessary to test or
				  demonstrate a specific thing, or to provide for necessary interchangeability of
				  parts and equipment, or at least two brands names or trade of comparable
				  quality and utility are listed and are followed by the words "or equal".
(d) The engineer shall report to the grantee any
				  sole-source or restrictive design or specification giving the reason or reasons
				  why it is considered necessary to restrict the design or specification.
9. Audit; access to records.
(a) The engineer shall maintain books, records,
				  documents and other evidence directly pertinent to performance on Agency grant
				  work under this agreement in accordance with accepted professional practice,
				  appropriate accounting procedures, and the Conditions of the Grant Offer. The
				  engineer shall also maintain the financial information and data used by the
				  engineer in the preparation or support of the cost submission required pursuant
				  to Section 660.503(g)(2) of the Grant Offer conditions for subagreements over
				  $100,000 and a copy of the cost summary submitted to the grantee. The Agency or
				  any of its duly authorized representatives shall have access to such books,
				  records, documents and other evidence for the purpose of inspection, audit and
				  copying. The engineer will provide proper facilities for such access and
				  inspection.
(b) The engineer agrees to include paragraphs (a)
				  through (e) of this clause in all his contracts and all tier subcontracts
				  directly related to project performance which are in excess of $10,000.
(c) Audits conducted pursuant to this provision
				  shall be in accordance with generally accepted auditing standards and
				  established procedures and guidelines for the reviewing or audit
				  agency(ies).
(d) The engineer agrees to the disclosure of all
				  information and reports resulting from access to records pursuant to paragraphs
				  (a) and (b) above, to any of the agencies referred to in paragraph (a) above.
				  Where the audit concerns the engineer, the auditing agency will afford the
				  engineer an opportunity for an audit exit conference and an opportunity for an
				  audit exit conference and an opportunity to comment on the pertinent portions
				  of the draft audit report. The final report will include the written comments,
				  if any, of the audited parties.
(e) Records under paragraphs (a) and (b) above
				  shall be maintained and made available during performance on Agency grant work
				  under this agreement and until three years from date of final Agency grant
				  payment for the project. In addition, those records which relate to any
				  "dispute" appeal under an Agency grant agreement, or litigation, or the
				  settlement of claims arising out of such performance, or costs or items to
				  which an audit exception has been taken, shall be maintained and made available
				  until three years after the date of resolution of such appeal, litigation,
				  claim or exception.
10. Price reduction for defective cost or pricing data. (The
				  provisions of this clause are required by the Agency only if the amount of this
				  agreement exceeds $100,000. The grantee may elect to utilize this clause if the
				  contract amount is $100,000 or less.)
(a) If the Agency determines that any price,
				  including profit negotiated in connection with this agreement or any cost
				  reimbursable under this agreement was increased by any significant sums because
				  the engineer or any subcontractor furnished incomplete or inaccurate cost or
				  pricing data or data not current as certified in his certification of current
				  cost or pricing data, then such price or cost or profit shall be reduced
				  accordingly and the agreement shall be modified in writing to reflect such
				  reduction.
(b) Failure to agree on a reduction shall be
				  subject to the "Remedies" clause of this agreement.
(Note): "Since the agreement is subject to
				  reduction under this clause by reason of defective cost or pricing data
				  submitted in connection with certain subcontracts, the engineer may wish to
				  include a clause in each such subcontract requiring the subcontractor to
				  appropriately indemnify the engineer. It is also expected that any
				  subcontractor subject to such indemnification will generally require
				  substantially similar indemnification for defective cost or pricing data
				  required to be submitted by his lower tier subcontractors.)
11. Subcontractors
(a) Any subcontractors and outside associates or
				  consultants required by the engineer in connection with the services covered by
				  this agreement will be limited to such individuals or firms as were
				  specifically identified and agreed to during negotiations, or as are
				  specifically approved by the grantee during the performance of this agreement.
				  Any substitution in such subcontractors, associates, or consultants will be
				  subject to the prior approval of the grantee.
(b) Except as otherwise provided in this
				  agreement, the engineer may not subcontract services in excess of thirty
				  percent (30%) of the contract price to subcontractors or consultants without
				  prior written approval of the grantee.
12. Equal employment opportunity. The engineer agrees that he
				  will not discriminate against any employee or applicant for employment because
				  of race, religion, color, sex, age or national origin.
13. Covenant against contingent fees. The engineer warrants
				  that no person or selling agency has been employed or retained to solicit or
				  secure this contract upon an agreement or understanding for a commission ,
				  percentage, brokerage, or contingent fee, excepting bonafide employees. For
				  breach or violation of this warranty the grantee shall have the right to annul
				  this agreement without liability or in its discretion to deduct from the
				  contract price or consideration or otherwise recover, the full amount of such
				  commission, percentage, brokerage, or contingent fee.
14. Gratuities
(a) The grantee may, by written notice to the
				  engineer, terminate the right of the engineer to proceed under this agreement
				  if it is found, after notice and hearing, by the grantee that gratuities (in
				  the form of entertainment, gifts, or otherwise) were offered or given by the
				  engineer, or any agent or representative of the engineer, to any official or
				  employee of the grantee or of the Agency with a view toward securing a contract
				  or securing favorable treatment with respect to the awarding or amending, or
				  the making of any determination with respect to the performance of this
				  agreement: Provided, That the existence of the facts upon which the grantee
				  makes such findings shall be in issue and may be reviewed in proceedings
				  pursuant to Clause 6 (remedies) of this agreement.
(b) In the event this agreement is terminated as
				  provided in paragraph (a) hereof, the grantee shall be entitled (1) to pursue
				  the same remedies against the engineer as it could pursue in the event of a
				  breach of the contract by the engineer, and (2) as a penalty in addition to any
				  other damages to which it may be entitled by law, to exemplary damages in an
				  amount (as determined by the grantee) which shall be not less than three nor
				  more than ten times the costs incurred by the engineer in providing any such
				  gratuities to any such officer or employee.
(c) The rights and remedies of the grantee
				  provided in this clause shall not be exclusive and are in addition to any
				  rights and remedies provided by law or under this agreement.