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R-1459 - 05/12/2015 - ENGINEERING - Resolutions RESOLUTION 2015-ENG-ST-PRJT-R-1459 A RESOLUTION APPROVING AND AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND CHRISTOPHER B. BURKE ENGINEERING, LTD FOR CONSTRUCTION ENGINEERING SERVICES RELATED TO THE 2015 STREET IMPROVEMENT PROJECT WHEREAS, the Village has budgeted funds for construction engineering for the 2015 Street Improvement Project("Project'), which Project includes certain street and infrastructure improvements to Lincoln Road, Natoma Court, Natoma Drive, Spring Road, Windsor Drive, Swift Drive, Bliss Drive, the west half of the Butler Government Center parking lot, and the York Woods streets that were not improved in 2013; and WHEREAS, the Village desires to retain an engineer to provide construction engineering services for the Project("Services"); and WHEREAS, Christopher B. Burke Engineering, LTD ("Burke") previously provided satisfactory engineering services to the Village during the design and bidding phases of the 2011, 2012, 2013, 2014 and 2015 Paving Projects; and WHEREAS, pursuant to the Local Government Professional Services Selection Act ("Act'), 50 ILCS 510/0.01 et seq., and Section 1-7-6 of the Village Code, the Village is not required to follow the notice, evaluation, and selection procedures set forth in the Act for engineering services provided by engineers who have a satisfactory relationship with the Village; and WHEREAS, the Village and Burke desire to enter into and execute an agreement for Burke to provide the Services to the Village for an amount not to exceed $197,770.00 ("Agreement'), which Agreement is attached to this Resolution as Exhibit A; and WHEREAS, the President and Board of Trustees have determined that it is in the best interest of the Village to enter into the Agreement; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Agreement by and between the Village and Burke in substantially the same form as attached as Exhibit A, and in a final form approved by the Village Attorney. Section 3: Authorization and Execution of the Agreement. The Village President and Village Clerk shall be, and hereby are, authorized to execute the Agreement after receipt of the final Agreement fully executed by Burke. Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and approval in the manner provided by law. [SIGNATURE PAGE FOLLOWS] Resolution 2015-ENG-ST-PRJT-R-1459 Construction Engineering Services for 2014 Street Improvement Project 2 of 3 APPROVED THIS 12th day of May, 2015 Gopal G. Lalmalani Village President PASSED THIS 12th day of May, 2015 Ayes: Trustees Adler, Baar, Manzo, Moy, Wolin, Yusuf Nays: None Absent: Now, ATTEST, � } Charlotte K. Pruss � =3 Village Clerk F `M ra C Resolution 2015-ENG-ST-PRJT-R-1459 Construction Engineering Services for 2014 Street Improvement Project 3 of 3 EXHIBIT A AGREEMENT CONTRACT BETWEEN THE VILLAGE OF OAK BROOK AND CHRISTOPHER B BURKE ENGINEERING, LTD. FOR ENGINEERING SERVICES In consideration of the agreements set forth below, the Village of Oak Brook, Illinois, 1200 Oak Brook Road, Oak Brook, Illinois 60523, a unit of local government created and existing under the laws of the State of Illinois (the "Owner" or "Village"), and Christopher B Burke Engineering, Ltd. 9575 W. Higgins Road, Suite 600, Rosemont, IL 60018 an engineering firm (the "Consultant"), make this Contract as of 6;--- 2015, and hereby agree as follows: ARTICLE I THE SERVICES 1.1 Performance of the Services Consultant shall, at its sole cost and expense, provide, perform, and complete all of the following services, all of which is herein referred to as the "Services"= A. Labor, Equipment, Materials, and Supplies. Provide, perform, and complete, in the manner described and specified in this (1) Contract, (ii) the Christopher B. Burke Engineering, Ltd. General Terms and Conditions attached hereto as Attachment B (`Terms and Conditions l. and Rider No. 1 To Agreement Dated 2014 Between the Village of Oak Brook, Illinois and Christopher B. Burke Engineering, Ltd. for the 2015 Street Improvement Project attached hereto as Attachment C (`Rider"}, all professional services necessary to accomplish the "Project," as defined in the following' 1. The Consultant's Proposal attached to this Contract as Attachment A, and 2. With the insurance coverage listed in Attachment D attached to this Contract. B. Insurance. Procure and furnish all required certificates and policies of insurance specified in Attachment D. C. Standard of Performance. Provide, perform, and complete all of the foregoing in a professional manner, consistent with the professional standards of care of qualified engineers doing similar service in the Chicago Metropolitan Area and in full compliance with this Contract (the "Standard of Performance"). 1 1.2 Completion Date Consultant shall diligently and continuously perform the Services at such a rate as will allow the Services to be fully performed and completed in compliance with this Contract not later than November 6, 2015 ("Completion Date"). The rate of progress and time of completion are referred to in this Contract as the "Contract Time." 1.3 Required Submittals A. Submittals Required. Consultant shall submit to Owner all reports, documents, data, and information required to be submitted by Consultant under this Contract (the "Required Submittals"). B. Time of Submission and Owner's Review. All Required Submittals shall be provided to Owner no later than the time, if any, specified in Attachment A, or otherwise in this Contract. If no time for submission is specified for any Required Submittal, then that Submittal shall be submitted within a reasonable time in light of its purpose and, in all events, in sufficient time, in Owner's opinion, to permit Owner to review that Submittal same prior to the commencement of any part of the Services to which that Submittal may relate. Owner shall have the right to require such corrections as may be necessary to make any Required Submittal conform to this Contract. No Services related to any Required Submittal shall be performed by Consultant until Owner has completed review of such Required Submittal with no exception noted. Owner's review and approval of any Required Submittal shall not relieve Consultant of the entire responsibility for the performance of the Services in full compliance with, and as required by or pursuant to this Contract, and shall not be regarded as any assumption of risk or liability by Owner. The Consultant shall not be held liable for claims of delay caused by the Owner's failure to timely review and approve any Required Submittal. 1.4 Review and Incorporation of Contract Provisions Consultant represents and declares that it has carefully reviewed; and fully understands, this Contract, including all of its Attachments, all of which are by this reference incorporated into and made a part of this Contract. 1.5 Financial and Technical Ability to Perform Consultant represents and declares that it is financially solvent, and has the financial resources necessary, and has sufficient experience and competent, and has the necessary capital, facilities, organization, and staff necessary to provide, perform, and complete the Services in full compliance with, and as required by or pursuant to, this Contract. 2 1.6 Time Consultant represents and declares that the Contract Time is sufficient time to permit completion of the Services in full compliance with, and as required by or pursuant to, this Contract for the Contract Price. 1.7 Consultant's Personnel and Sub-Consultants A. Consultant's Personnel. Consultant shall provide all personnel necessary to complete the Services. B. Approval and Use of Sub-Consultants. Consultant shall perform the Services with its own personnel and under the management, supervision, and control of its own organization unless otherwise approved by Owner in writing. All sub-consultants and subcontracts used by Consultant shall be acceptable to, and approved in advance by, Owner. Owner's approval of any sub-consultant or subcontract shall not relieve Consultant of full responsibility and liability for the provision, performance, and completion of the Services in full compliance with, and as required by or pursuant to, this Contract. All Services performed under any subcontract shall be subject to all of the provisions of this Contract in the same manner as if performed by employees of Consultant. Every reference in this Contract to "Consultant" shall be deemed also to refer to all sub-consultants of Consultant. Every subcontract shall include a provision binding the sub-consultant to all provisions of this Contract. C. Removal of Personnel and Sub-Consultants. If any personnel or sub- consultant fails to perform the part of the Services undertaken by it in compliance With this Contract or in a manner reasonably satisfactory to Owner, Consultant, immediately upon notice from Owner, shall remove and replace such personnel or sub-consultant. Consultant shall have no claim for damages, for compensation in excess of the Contract Price, or for a delay or extension of the Contract Time as a result of any such removal or replacement. 1.8 Owner's Responsibilities Owner shall, at its sole cost and expense= (a) designate in writing a person with authority to act as Owner's representative and on Owner's behalf with respect to the Services except those matters that may require approval of Owner's Board of Trustees; (b) provide to Consultant all criteria and full information as to Owner's requirements for the Project or work to which the Services relate, including Owner's objectives and constraints, schedule, space, capacity and performance requirements, and budgetary limitations relevant to the Project; (c) provide to Consultant existing studies, reports; and other available data relevant to the Project) (d) arrange for access to and make all provisions for Consultant to enter upon public and private property as reasonably required for Consultant to perform the Services; (e) provide surveys describing physical characteristics, legal limitations, and utility locations 3 for the Project and the services of geotechnical engineers or other consultants when such services are reasonably requested by Consultant and are necessary for the performance of the Services; (f) provide structural, mechanical, chemical, air and water pollution tests, test for hazardous materials, and other laboratory and environmental tests, inspections, and reports required by law to be provided by Owner in connection with the Project; (g) review Required Submittals and other reports, documents, data, and information presented by Consultant as appropriate; (h) provide approvals from all governmental authorities having jurisdiction over the Project when such services are reasonably requested by Consultant: W except as provided in Article N of this Contract, provide all accounting, insurance, and legal counseling services as may be necessary from time to time in the judgment of Owner to protect Owner's interests with respect to the Project; () attend Project related meetings; and (k) give written notice to Consultant whenever Owner observes or otherwise becomes aware of any development that affects the scope or timing of the Services, provided, however, that failure to give such notice shall not relieve Consultant of any of its responsibilities under this Contract. 1.9 Owner's Right to Terminate or Suspend Services for Convenience A. Termination or Suspension for Convenience. Owner shall have the right, at any time and for its convenience, to terminate or suspend the Services in whole or in part at any time by written notice to Consultant. Every such notice shall state the extent and effective date of such termination or suspension. On such effective date, Consultant shall, as and to the extent directed, stop Services under this Contract, cease all placement of further orders or subcontracts, terminate or suspend Services under existing orders and subcontracts, and cancel any outstanding orders or subcontracts that may be canceled. B. Payment for Completed Services. In the event of any termination pursuant to Subsection 1.9A above, Owner shall pay Consultant (1) such direct costs, including overhead, as Consultant shall have paid or incurred for all Services done in compliance with, and as required by or pursuant to, this Contract up to the effective date of termination; and (2) such other costs pertaining to the Services, exclusive of overhead and profit, as Consultantt may have reasonably and necessarily incurred as the result of such termination. Any such payment shall be offset by any prior payment or payments and shall be subject to Owner's rights, if any, to withhold and deduct as provided in this Contract. ARTICLE II CHANGES AND DELAYS 2.1 Changes Owner shall have the right, by written order executed by Owner, to make changes to the timing or scope of the Services to be provided pursuant to this Contract (a "Services Change Order"). When a Services Change Order causes an 4 increase or decrease in the amount of the Services, an equitable adjustment in the Contract Price or Contract Time may be made. No decrease in the amount. of the Services caused by any Services Change Order shall entitle Consultant to make any claim for damages, anticipated profits, or other compensation. Consultant shall not undertake any change in the Services without receipt of an executed Services Change Order from Owner. 2.2 Delay For any delay that may result from causes that could not be avoided or controlled by Consultant, Consultant, upon timely written application, shall be entitled to an extension of the Contract Time for a period of time equal to the delay resulting from such unavoidable cause. No extension of the Contract Time shall be allowed for any other delay in completion of the Services. In the event of a delay in the project outside of the control of Consultant that affects Consultant's ability to perform the Services, the Contract Price shall be adjusted for any actual increase in costs necessarily incurred by Consultant in the performance of the Services. 2.3 No Constructive Service Change Orders No claim for an equitable adjustment in the Contract Price or Contract Time shall be made or allowed unless it is embodied in a Services Change Order agreed to by Owner and Consultant. If Consultant believes it is entitled to an equitable adjustment in the Contract Price or Contract Time that has not been included, or fully included, in a Services Change Order, then Consultant shall submit to Owner a written request for the issuance of, or revision of, a Services Change Order, including the equitable adjustment, or the additional equitable adjustment, in the Contract Price or Contract Time that Consultant claims has not been included, or fully included; in a Services Change Order. Such request shall be submitted before Consultant proceeds with any Services for which Consultant claims an equitable adjustmentt is due. ARTICLE III CONSULTANT'S RESPONSIBILITY FOR DEFECTIVE SERVICES 3.1 Representation of Compliance A. Scope of Representation. The Services and all of its components shall conform to the requirements of this Contract and shall be performed in accordance with Standard of Performance as defined in Subsection 1.11) of this Contract (the "Representation of Compliance"). B. Opinions of Cost. It is recognized that neither Consultant nor Owner has control over the costs of labor, material, equipment or services furnished by others or over competitive bidding, market or negotiating conditions, or construction contractors' methods of determining their prices. Accordingly, any opinions of 5 I probable Project costs or construction costs provided for herein are estimates only, made on the basis of Consultant's experience and qualifications and represent Consultant's best judgment as an experienced and qualified professional, familiar with the industry. Consultant does not guaranty that proposals, bids or actual Project costs or construction costs will not vary from opinions of probable cost prepared by Consultant. 3.2 Corrections Consultant shall be responsible for the quality, technical accuracy, completeness and coordination of all Services under this Contract. Consultant shall, promptly and without charge, correct all errors in any Services provided by Consultant. 3.3 Rink of Loss The Services shall be provided, performed, and completed at the risk and cost of Consultant. Consultant shall be responsible for damages to property or persons to the extent caused by Consultant's errors, omissions, or negligent acts and for any losses or costs to repair or remedy any work undertaken by Owner based on the Services as a resultt of any such errors, omissions; or negligent acts. Notwithstanding any other provision of this Contract, Consultant's obligations under this Section 3.3 shall exist without regard to, and shall not be construed to be waived by, the availability or unavailability of any insurance, either of Owner or Consultant, to indemnify, hold harmless, or reimburse Consultant for such damages, losses, or costs. ARTICLE IV INSURANCE; INDEMNIFICATION 4.1 Insurance Contemporaneous with Consultant's execution of this Contract, Consultant shall provide certificates and policies of insurance evidencing at least the minimum insurance coverage and limits set forth in Attachment D. For good cause shown, Owner may extend the time for submission of the required policies of insurance upon such terms, and with such assurances of complete and prompt performance, as Owner may impose in the exercise of its sole discretion. Such policies shall be in a form reasonably acceptable to Owner. Such insurance shall provide that no change to or cancellation of any insurance, nor any reduction in limits or coverage or other modifications affecting this Agreement, shall become effective until the expiration of 30 days after written notice thereof shall have been given by the insurance company to Owner. Consultant shall, at all times while providing, performing, or completing the Services, including without limitation at all times while providing corrective Services pursuant to Section 3.2 of this Contract, maintain and keep in force, at 6 Consultant's expense, at least the minimum insurance coverage and limits set forth in Attachment D. 4.2 Indemnification Consultant, without regard to the availability or unavailability of any insurance, either of Owner or Consultant, shall, to the fullest extent permitted by law, indemnify, save harmless, and reimburse Owner against an3- and all lawsuits, claims, demands, damages, liabilities, losses, and expenses, including reasonable attorneys' fees, that may arise or be alleged to have arisen out of or in connection with Consultant's failure to meet its obligations or representations in this Contract or Consultants negligent acts, errors, or omissions except only to the extent caused by the sole negligence of Owner. ARTICLE V PAYMENT 5.1 Contract Price Owner shall pay to Consultant, in accordance with and subject to the terms and conditions set forth in this Article V and Attachment A, and Consultant shall accept in full satisfaction for providing, performing, and completing the Services, the amount or amounts in the schedule of prices set forth in Attachment A ("Contract Price"), subject to any additions, deductions, or withholdings provided for in this Contract. 5.2 Taxes, Benefits and Royalties The Contract Price includes applicable federal, state, and local taxes of evei7Z kind and nature applicable to the Services as well as all taxes, contributions, and premiums for unemployment insurance, old age or retirement benefits, pensions, annuities, or other similar benefits. Consultant shall have no claim or right to claim additional compensation by reason of the payment of any such tax, contribution, premium, costs, royalties, or fees. 5.3 Progress Payments A. Pa),ment in Installments. The Contract Price shall be paid in monthly installments in the manner set forth in Attachment A ("Progress Payments"). B. Pay Requests. Consultant shall, as a condition precedent to its right to receive each Progress Payment; submit to Owner an invoice accompanied by such receipts, vouchers, and other documents as may be necessary to reasonably establish Consultant's prior payment for all labor, material, and other things covered by the invoice and the absence of any lien or other interest of any party in regard to the Services performed under this Contract. In addition to the foregoing, 7 such invoice shall include (a) employee classifications, rates per hour, and hours worked by each classification, and, if the Services are to be performed in separate phases, for each phase; (b) total amount billed in the current period and total amount billed to date, and, if the Services are to be performed in separate phases, for each phase; (c) the estimated percent completion, and, if the Services are to be performed in separate phases, for each phase; and (d) Consultant's certification that, to the best of Consultant's knowledge, information, and belief, all prior Progress Payments have been properly applied to the Services with respect to which they were paid. Owner may, by written notice to Consultant, designate a specific day of each month on or before which pay requests must be submitted. 5.4 Final Acceptance and Final Payment The Services or, if the Services are to be performed in separate phases, each phase of the Services, shall be considered complete on the date of final written acceptance by Owner of the Services or each phase of the Services, as the case may be, which acceptance shall not be unreasonably withheld or delayed. The Services or each phase of the Services, as the case may be, shall be deemed accepted by Owner if not objected to in writing within 30 days after submission by Consultant of the Services or such phase of Services for final acceptance and payment plus, if applicable, such additional time as may be considered reasonable for obtaining approval of governmental authorities having jurisdiction to approve the Services, or phase of Services, as the case may be. Within 30 days after final acceptance, Owner shall pay to Consultant the balance of the Contract Price or, if the Services are to be performed in separate phases, the balance of that portion of the Contract Price with respect to such phase of the Services, after deducting therefrom charges, if any, against Consultant as provided for in this Contract ("Final Payment"). The acceptance by Consultant of Final Payment with respect to the Services or a particular phase of Services, as the case may be, shall operate as a full and complete release of Owner of and from any and all lawsuits, claims, or demands for further payment of any kind for the Services or, if the Services are performed in separate phases, for that phase of the Services. 5.5 Deductions A. Owner's Right to W ithhold. Notwithstanding any other provision of this Contract, Owner shall have the right to deduct and withhold from any Progress or Final Payment that may be or become due under this Contract such amount as may reasonably appear necessary to compensate Owner for any loss due to (1) Services that are defective, nonconforming, or incomplete; (2) liens or claims of lien: (3) claims of Consultant's sub-consultants, suppliers, or other persons regardless of merit; (4) delay by Consultant in the completion of the Services; (5) the cost to Owner, including reasonable attorneys' fees, of correcting any of the aforesaid matters or exercising any one or more of Owner's remedies set forth in Section 6.1 of this Contract. Owner shall notify Consultant in writing given in accordance with Section 7.8 of this Contract of Owner's determination to deduct and withhold funds, 8 i I which notice shall state with specificity the amount of, and reason or reasons for, such deduction and withholding. B. Use of Withheld Funds. Owner shall be entitled to retain any and all amounts withheld pursuant to Subsection 5.5A above until Consultant shall have either performed the obligations in question or furnished security for such performance satisfactory to Owner. Owner shall be entitled to apply any money withheld or any other money due Consultant under this Contract to reimburse itself for any and all costs, expenses, losses, damages, liabilities, suits, judgments, awards, and reasonable attorneys' fees (collectively "Costs") incurred, suffered, or sustained by Owner and chargeable to Consultant under this Contract. Owner shall notify Consultant in writing given in accordance with Section 7.8 of this Contract of each application by Owner of money to reimburse such Costs. 5.6 Accounting Consultant shall keep accounts, books, and other records of all its billable charges and costs incurred in performing the Services in accordance with generally accepted accounting practices, consistently applied, and in such manner as to permit verification of all entries. Consultant shall make all such material available for inspection by Owner, at the office of Consultant during normal business hours during this Contract and for a period of three years after termination of this Contract. Copies of such material shall be furnished, at Owner's expense, upon request. ARTICLE VI REMEDIES 6.1 Owner's Remedies If it should appear at any time prior to Final Payment for all work that Consultant has failed or refused to perform, or has delayed in the performance o£ the Services ("Event of Default"), and has failed to cure any such Event. of Default within five business days after Consultant's receipt of written notice of such Event of Default, then Owner shall have the right, at its election and without prejudice to any other remedies provided by law or equity, to pursue any one or more of the following remedies: 1. Owner may require Consultant, within such reasonable time as may be fixed by Owner, to complete or correct all or any part of the Services that are defective, nonconforming, or incomplete and to such other action as is necessar`, to bring Consultant, and the Services into compliance with this Contract. 2. Owner may terminate this Contract without liability for further payment of amounts due or to become due under this Contract. 9 3. Owner may recover from Consultant any and all costs, including reasonable attorneys' fees, incurred by Owner as the result of any Event of Default or as a result of actions taken by Owner in response to any Event of Default. 6.2 Consultant's Remedy Consultant may terminate this Contract upon for failure of Owner to make Progress Payments to which Consultant is entitled if Owner has failed to cure such failure within five business days after Owner's receipt of written notice from Consultant of such failure. 6.3 Terminations and Suspensions by Owner Deemed for Convenience Any termination or suspension by Owner of Consultant's rights under this Contract for an alleged default that is ultimately held unjustified shall automatically be deemed to be a termination or suspension for the convenience of Owner under Section 1.9 of this Contract. ARTICLE VII LEGAL RELATIONSHIPS AND REQUIREMENTS 7.1 Binding Effect This Contract shall be binding on Owner and Consultant and on their respective heirs, executors, administrators; personal representatives, and permitted successors and assigns. Every reference in this Contract to a party shall also be deemed to be a reference to the authorized officers, employees, agents, and representatives of such party. 7.2 Relationship of the Parties Consultant shall act as an independent contractor in providing and performing the Services. Nothing in, nor done pursuant to, this Contract shall be construed (1) to create the relationship of principal and agent, partners, or joint venturers between Owner and Consultant or (2) to create any relationship between Owner and anv sub-consultant of Consultant. 7.3 No Collusion Consultant hereby represents and certifies that Consultant is not barred from contracting with a unit of state or local government as a result: of (i) a delinquency in the payment of any tax administered by the Illinois Department of Revenue unless Consultant is contesting, in accordance with the procedures established by the appropriate revenue Act, its liability for the tax or the amount of 10 the tax, as set forth in 65 ILCS 5/11-42.1.1 or (ii) a violation of either Section 33E-3 or Section 33E-4 of Article 33E of the Criminal Code of 1961, 720 ILCS 5/33E-1 et seq. Consultant hereby represents that the only persons, firms, or corporations interested in this Contract as principals are those disclosed to Owner prior to the execution of this Contract, and that this Contract is made without collusion with any other person, firm, or corporation. If at any time it shall be found that Consultant has, in procuring this Contract, colluded with any other person, firm, or corporation, then Consultant shall be liable to Owner for all loss or damage that Owner may suffer thereby, and this Contract shall, at Owner's option, be null and void. 7.4 Assigmnent Consultant shall not (1) assign this Contract in whole or in part, (2) assign any of Consultant's rights or obligations under this Contract, or (3) assign any payment due or to become due under this Contract without the prior express written approval of Owner, which approval may be withheld in the sole and unfettered discretion of Owner; provided, however, that Owner's prior written approval shall not be required for assignments of accounts, as defined in the Illinois Commercial Code, if to do so would violate Section 9-318 of the Illinois Commercial Code, 810 ILCS 5/9-318. Owner may assign this Contract, in whole or in part, or any or all of its rights or obligations under this Contract, without the consent of Consultant. 7.5 Confidential Information All information supplied by Owner to Consultant for or in connection with this Contract or the Services shall be held confidential by Consultant and shall not; without the prior express written consent of Owner, be used for any purpose other than performance of the Services. 7.6 No Waiver No act, order, approval, acceptance, or payment by Owner, nor any delay by Owner in exercising any right under this Contract, shall constitute or be deemed to be an acceptance of any defective, damaged, flawed, unsuitable, nonconforming, or incomplete Services, nor operate to waive any requirement or provision of this Contract or any remedy, power; or right of Owner. 7.7 No Third Party Beneficiaries No claim as a third party beneficiary under this Contract by any person, firm, or corporation (other than Owner and Consultant) shall be made or be valid against Owner or Consultant. 11 7.8 Notices All notices required or permitted to be given under this Contract shall be in writing and shall be deemed received by the addressee thereof when delivered in person on a business day at the address set forth below or after being deposited in the United States mail, for delivery at the address set forth below by properly addressed, postage prepaid, certified or registered mail, return receipt requested. Notices and communications to Owner shall be addressed to, and delivered at, the following address: Village of Oak Brook 1200 Oak Brook Road Oak Brook. Illinois 60302 Attention= Village Manager Notices and communications to Consultant shall be addressed to, and delivered at, the following address: Christopher B Burke Engineering; Ltd. 9575 W. Higgins Road, Suite 600 Rosemont, IL 60018 The foregoing shall not be deemed to preclude the use of other non-oral means of notification or to invalidate any notice properly given by any such other non-oral means. By notice complying with the requirements of this Section 7.8, Owner and Consultant each shall have the right to change the address or addressee or both for all future notices to it, but no notice of a change of address or addressee shall be effective until actually received. 7.9 Governing Laws This Contract and the rights of Owner and Consultant under this Contract shall be interpreted according to the internal laws. but not the conflict of laws rules; of the State of Illinois; the venue for any legal action arising in connection with this Contract shall be in the Circuit Court of DuPage County, Illinois. 7.10 Changes in Laws Unless otherwise explicitly provided in this Contract, any reference to laws shall include such lave=s as they may be amended or modified from time to time. 12 7.11 Compliance with Laws and Grants The Services shall be provided, performed, and completed in accordance with all required governmental permits, licenses, or other approvals and authorizations, and with applicable statutes, ordinances, rules, and regulations. This requirement includes, but is not limited to, compliance with the Fair Labor Standards Act; any statutes regarding qualification to do business; any statutes prohibiting discrimination because of, or requiring affirmative action based on, race, creed, color, national origin, age, sex, or other prohibited classification, including, without limitation, the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. Consultant shall also comply with applicable conditions of any federal, state, or local grant received by Owner or Consultant with respect to this Contract or the Services. Consultant shall be liable for any fines or civil penalties that may be imposed or incurred by a governmental agency with jurisdiction over the Services as a result of Consultant's or its sub-consultants' improper performance of or failure to properly perform, the Services or any part thereof. Every provision of law required by law to be inserted into this Contract shall be deemed to be inserted herein. 7.12 Ownership of Documents Consultant and Consultant's sub-consultants shall be deemed the original authors and owners respectively of materials produced pursuant to this Contract and shall retain all common law, statutory and other reserved rights, including copyrights. Consultant hereby grants and conveys to Owner perpetual, irrevocable non-exclusive rights and license to use all Required Submittals and other materials produced under this Contract for grillage purposes and no other purposes. 7.13 Time Except where otherwise stated, references in this Contract to days shall be construed to refer to calendar days. 7.14 Severability The provisions of this Contract shall be interpreted when possible to sustain their legality and enforceability as a whole. In the event any provision of this Contract shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, in whole or in part, neither the validity of the remaining part of such provision, nor the validity of any other provisions of this Contract shall be in any way affected thereby. 7.15 Entire Agreement 13 This Contract sets forth the entire agreement of Owner and Consultant with respect to the accomplishment of the Services and the payment of the Contract Price therefor, and there are no other understandings or agreements, oral or written, between Owner and Consultant with respect to the Services and the compensation therefor. The proposal attached as Attachment A is attached hereto for reference only and other than as specifically referred to and incorporated herein, the terms and conditions set forth in the proposal do not form part of this Agreement. 7.16 Attachments If a conflict exists between the terms of this Contract and the Terms and Conditions, the terms of the Terms and Conditions shall control; if a conflict exists between the terms of the Terms and Conditions and the Rider, the terms of the Rider shall control. If a conflict exists between the terms of this Contract and the Rider. The terms of the Rider shall control. 7.17 Amendments No modification, addition, deletion, revision, alteration, or other change to this Contract shall be effective unless and until such change is reduced to writing and executed and delivered by Owner and Consultant. IN? WITNESS WHEREOF, Owner and Consultant have caused this Contract to be executed in two original counterparts as of the day and year first written above. Village of Oak Broo By Gopal G. Lalmalani ZVillla President Attest: By: Name: Q � Title: Christopher B. Bur � 'ee g, Ltd. By: z Name ,, Title Attest: 14 By: Name Zve���� ��s Titleyr� #35479420 v2 15 ATTACHMENT A PROPOSAL ATTACHMENT A April 6, 2015 Village of Oak Brook 1200 Oak Brook Road Oak Brook, IL 60523 Attention: Mr. Michael Hullihan, PE, Public Works Director Subject: Proposal for Professional Engineering Services 2015 Street Improvement Project (CBBEL Project No. 140543) Dear Mr. Hullihan: At your request, we are providing this proposal to perform construction engineering services for the Village's 2015 Street Improvement Project. We understand that the Village will use Infrastructure Funds therefore; IDOT coordination will not be required, Included below you will find our Understanding of the Assignment, Scope of Services and Determination of Fee. UNDERSTANDING OF THE ASSIGNMENT Christopher B. Burke Engineering, Ltd. (CBBEL) understands that the Village of Oak Brook would like to rehabilitate streets and parking lots located in six areas throughout the Village. These projects are described as the 2015 Street Improvement Project. The project areas and proposed improvements are as follows: Area 1 (Lincoln Road) The proposed improvements will include the reconstruction of Lincoln Road from 318t Street to the terminus; approximately 1,750 square yards of pavement with 2.5° hot- mix asphalt binder course and 2" hot-mix asphalt surface course, driveway pavement removal and replacement (where necessary). The proposed cross section will consist of two 9 foot wide lanes crowned at 3%. Area 2 (Natoma Court/Drive): This work will involve resurfacing of Natoma Drive and Natoma Court off Spring Road; approximately 7,000 square yards. The resurfacing will include raising the centerline in order to increase the pavements cross slope. This involves hot-mix asphalt surface removal, 3" at the curb line and 2" at the centerline, hot-mix asphalt leveling binder, V, and hot-mix asphalt surface course, 2". Miscellaneous curb and gutter replacement and sewer improvements will also be included. Area 3 (Spring Road): Spring Road improvements will involve the resurfacing of Spring Road from 31s` Street to York Road, approximately 20,600 square yards. The resurfacing will include adding an additional inch of pavement at the centerline in order to raise the crown. This involves hot-mix asphalt surface removal, 3" at the curb line and 2" at the centerline, hot-mix asphalt leveling binder, 1", and hot-mix asphalt surface course, 2". The work will also involve widening in some areas to provide for 45-inch wide shoulder throughout the rural pavement sections as well as ditch re-grading and other drainage improvements along the parkway. Area 4 (Butler Government Center Parking Lot): This area includes reconstructing and resurfacing the remaining portion of the Butler Government Center (Village Hall) parking lot as indicated in the Plans. The proposed improvement will include full depth removal of the existing asphalt pavement (3") and removal of an additional 2-inch of aggregate base course in order to provide for the installation of a new 5-inch pavement section through the parking areas. These areas may also be re-graded in order to ensure 1% pavement slope to drainage areas. The proposed pavement section will consist of 3-inches of hot-mix asphalt binder course and 2-inches of hot-mix asphalt surface course. The drive lanes shall include 3" surface removal, V hot-mix asphalt leveling binder, and 2" hot- mix asphalt surface course, Work will also include thermoplastic pavement markings, sewer improvements and extensions as well as replacement of deteriorated curb and gutter and sidewalk. The trench drain and concrete at the police station building shall also be reconstructed. Parking stalls will be striped at 9 foot widths and some islands may be reconfigured to maintain the current number of stalls. This work will also include the thermoplastic pavement marking in place of the paint pavement markings at the adjacent lot that was completed in 2012 as well as the nearby fire station lot completed in 2012. Area 5 (Swift/Windsor/ Bliss): This area involves resurfacing as well as increasing the slope of the pavement's cross section. This involves hot-mix asphalt surface removal, 3" at the curb line and 2" at the centerline, hot-mix asphalt leveling binder, V, and hot-mix asphalt surface course, 2". Work will also include curb and gutter repairs and drainage improvements as indicated in the Plans. The water reservoir driveway at Windsor will also be rehabilitated as part of this work. Area 6 (Yorks Woods): The streets to be completed in York Woods Subdivision include Brighton Ln, Bradford Ln, Hunt Club Ln, Windsor Dr, Stafford Ln, and Dover Dr. The proposed improvements will include rehabilitating approximately 29,375 square yards of pavement with full-depth patching 8", curb and gutter removal and replacement, driveway pavement removal and replacement (where necessary). Improvements at streets that received new water main in 2014 will include hot-mix asphalt surface removal, 4", hot-mix asphalt binder course, 2 1/" at the curb line and 3 1/" at the centerline, and hot-mix asphalt surface course, 2". Improvements at streets that did not receive a new water main will include hot-mix asphalt surface removal, 3" at the curb line and 2" at the centerline, hot-mix asphalt leveling binder, 1", and hot-mix asphalt surface course, 2". Construction will also include installation of new storm sewers, installation of drainage structures, existing drainage structure repairs, and all necessary restoration. occrmz panP C,.W sersVserencelAppData%locaBMicrosoftlWindows%Temporary Intemet FIeskGontent.Outlookl6WPO05YN1Oak Brook-2015 Street Improvement Pre?ci 9-11Of 5 _ 050415.doc SCOPE OF SERVICES A detailed scope of Construction Engineering services is provided below including, but not limited to, the following: Task 1 — Pre-Construction: • Management of the pre-construction meeting. • Review Contractor's proposed construction schedule. • Review Contractor's QC plans for both PCC and HMA. • Review all Contractors shop drawings. Task 2—Construction Observation: CBBEL will provide one resident engineer and one part-time project engineer (as necessary) for the duration of the project. Construction observation will include the following tasks: • Provide resident/business communication. including written communication as required, throughout the duration of the project. • Serve as the Village's liaison with the Contractor working principally through the Contractor's field superintendent. • Be present whenever the Contractor is performing work on the project. • Observe the progress and quality of the executed work and to determine if the work is proceeding in accordance with the Contract Documents. The Engineer will keep the Village informed of the progress of the work, guard the Village against defects and deficiencies in the work, advise the Village of all observed deficiencies of the work, and will disapprove or reject all work failing to conform to the Contract Documents. • Quality control of the construction work in progress and the enforcement of the contract provisions in accordance with IDOT's Construction Manual • Keep an inspectors daily report book as outlined in the [DOT Construction Manual, which shall contain a daily report and quantity of hours on the job site, weather conditions, list of visiting officials, daily activities, job decisions and observations as well as general and specific observations and job progress. • Maintain a daily record of the contractor's activities throughout construction including sufficient information to permit verification of the nature and cost of changes in plans and authorized extra work. • Survey pavement cross section as necessary throughout the project to verify minimum cross slope percentages are being achieved as detailed in the Typical Sections. CBBEL will notify Village of areas that are not in compliance. • Measurement and computation of pay items. • Preparation and submission of all partial and final payment estimates, change orders, records, documentation and reports. • Except upon written instructions of the Village, the Resident Engineer or Inspector shall not authorize any deviation from the Contract Documents. i • Assist contractors in dealing with any outside agencies. occrme p�f]p C:lUsersYsereneat4ppDat elLocaNNxmsoitlWintlows%Temporary lnlemel Files%Conlent.Outlookl6WPOQ5YNlOak Brook-2015 Street Improvement Wq ctl� AtPf 5 050415.doc • Attend all construction conferences. Arrange a schedule of progress meetings and other job conferences as required. Maintain and circulate copies of records of the meetings. • Attend meetings at any reasonable time when requested to do so by representatives of the Village. • Review the Contractor's schedule on a weekly basis. Compare actual progress to Contractor's approved schedule. If the project falls behind schedule, work with the Contractor to determine the appropriate course of action to get back on schedule. • Maintain orderly files for correspondence, reports of job conferences, shop drawings and other submissions, reproductions or original contract documents including all addenda, change orders and additional drawings issued subsequent to the award of the contract. • Prepare payment requisitions and change orders for the Village's approval, review applications for payment with the Contractor for compliance with established procedures for their submission and forward them with recommendations to the Village. • Prior to final inspection, submit to the Contractor a list of observed items requiring correction and verify that each correction has been made. ■ Coordinate and conduct the final inspection with the Village, prepare a final punchlist. ■ Verify that all the items on the final punchfist have been corrected and make recommendations to the Village concerning acceptance. ■ Determine if the project has been completed in accordance with the Contract Documents and that the Contractor has fulfilled all of his obligations. Please note that for any of the observation tasks that CBBEL may be performing, the Contractor(s) shall be informed that neither the presence of CBBEL field staff nor the observation and testing (if any) by our firm or subconsultant of our firm shall excuse the Contractor in any way for defects discovered in the work. It should be understood that CBBEL will not be responsible for any job and site safety on this project; job and site safety shall be the sole responsibility of the Contractor(s). CBBEL does not have the right to stop work and will not advise nor supervise the Contractor(s) means and methods of their work. Task 3— Project Close Out: • All final paperwork will be submitted to the Village • Material Inspection close out will be submitted to the Village in accordance with the Construction Manual and Bureau of Materials standards. Task 4— Material Testing: CBBEL will provide material inspection services through our sub-consultant Testing Service Corporation (TSC) of Carol Stream, IL. TSC will complete the Quality Assurance (QA) material testing for concrete and asphalt at the site and QA testing at the plants in accordance with IDOT's Construction Manual. It is understood that CBBEL will be responsible for the performance of material inspection services as described above. It is also understood that CBBEL is the sole representative of the Village. Due to the special provisions related to the asphalt mix design in the construction contract, an additional 10% contingency has been included in order to provide additional material testing, if needed. OCGfmc C:lUsersYserenceVlppUatallomAMA crosoftlWmclmvs%Temporary Internet RieslContent.Outlookl5V4KQ5YNIOak Brook-2015 Street Improvement Pre, tiAllof rJ 050415.doc DETERMINATION OF FEE The project duration is expected to be 5 months. Task 2 — Construction Observation provides for a senior level Resident Engineer to be staffed on the project 9 hours per day Monday through Friday during this time frame. This task also provides for 40 hours of Project Management time to be utilized as needed throughout the project. CBBEL proposes the following not to exceed fees for each of the tasks described above for each Area: CONSTRUCTION ENGINEERING SERVICES Task 1 —Pre-Construction $ 3,500 Task 2—Construction Observation $ 179,270 Task 3—Project Close Out $ 3,500 Task 4—Material Testing $ 10,500 Sub Total $ 196,770 DIRECT COSTS Outside Copies, Blueprints, Messenger, Delivery Services $ 1,004 GRAND TOTAL $ 197,770 We will bill you at the hourly rates specified on the attached Schedule of Charges and establish our contract in accordance with the attached General Terms and Conditions. Please note the direct costs for blueprints, photocopying, mailing, overnight delivery, messenger services and vehicle usage are included in the not to exceed Fee Determination and will not be charged separately for this project. These General Terms and Conditions are expressly incorporated into and are an integral part of this contract for professional services. Please sign and return one copy of this agreement as an indication of acceptance and notice to proceed. Please feel free to contact us anytime. Sincerely, Christopher B. Burke, PhD, PE, D.WRE, Dist.M.ASCE. President Encl. Schedule of Charges General Terms and Conditions THIS PROPOSAL, SCHEDULE OF CHARGES AND GENERAL TERMS AND CONDITIONS ACCEPTED FOR THE VILLAGE OF OAK BROOK: BY: TITLE: DATE: OCNmc p��A t C:1UsersV"e ncelAppDataLLocaRMierosoltWVindow$%Temporary Internet FleslCDntentOutlookSLWPOQ5YN1Oek Brook-2015 Street Improvement Pro�ct'F�N�A11of 5 050415.doc ATTACHMENT B TERMS AND CONDITIONS CHRISTOPHER B. BURKE ENGINEERING, LTD. GENERAL TERMS AND CONDITIONS 1. Relationship Between Engineer and Client: Christopher B. Burke Engineering, Ltd. (Engineer) shall serve as Client's professional engineer consultant in those phases of the Project to which this Agreement applies. This relationship is that of a buyer and seller of professional services and as such the Engineer is an independent contractor in the performance of this Agreement and it is understood that the parties have not entered into any joint venture or partnership with the other. The Engineer shall not be considered to be the agent of the Client. Nothing contained in this Agreement shall create a contractual relationship with a cause of action in favor of a third party against either the Client or Engineer. Furthermore, causes of action between the parties to this Agreement pertaining to acts of failures to act shall be deemed to have accrued and the applicable statute of limitations shall commence to run not later than the date of substantial completion. 2. Responsibility of the Engineer: Engineer will strive to perform services under this Agreement in accordance with generally accepted and currently recognized engineering practices and principles, and in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions. No other representation, express or implied, and no warranty or guarantee is included or intended in this Agreement, or in any report, opinion, document, or otherwise. Notwithstanding anything to the contrary which may be contained in this Agreement or any other material incorporated herein by reference, or in any Agreement between the Client and any other party concerning the Project,the Engineer shall not have control or be in charge of and shall not be responsible for the means, methods, techniques, sequences or procedures of construction,or the safety, safety precautions or programs of the Client,the construction contractor,other contractors or subcontractors performing any of the work or providing any of the services on the Project. Nor shall the Engineer be responsible for the acts or omissions of the Client, or for the failure of the Client, any architect, engineer, consultant, contractor or subcontractor to carry out their respective responsibilities in accordance with the Project documents, this Agreement or any other agreement concerning the Project. Any provision which purports to amend this provision shall be without effect unless it contains a reference that the content of this condition is expressly amended for the purposes described in such amendment and is signed by the Engineer. 3. Changes: Client reserves the right by written change order or amendment to make changes in requirements, amount of work, or engineering time schedule adjustments, and Engineer and Client shall negotiate appropriate adjustments acceptable to both parties to accommodate any changes, if commercially possible. 4. Suspension of Services; Client may, at any time, by written order to Engineer (Suspension of Services Order) require Engineer to stop all, or any part, of the services required by this Agreement. Upon receipt of such an order, Engineer shall immediately comply with its terms and take all reasonable steps to minimize the costs associated with the services affected by such order. Client, however, shall pay all costs incurred by the suspension, including all costs necessary to maintain continuity and for the resumptions of the services upon expiration of the Suspension of Services Order. Engineer will not be obligated to provide the same personnel employed prior to suspension,when the services are resumed, in the event that the period of suspension is greater than thirty (30) days. 5. Termination: This Agreement may be terminated by either party upon thirty (30) days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. This Agreement may be terminated by Client, under the same terms, whenever Client shall determine that termination is in its best interests. Cost of termination, including salaries, overhead and fee, incurred by Engineer either before or after the termination date shall be reimbursed by Client. 6. Documents Delivered to Client: Drawings,specifications, reports,and any other Project Documents prepared by Engineer in connection with any or all of the services furnished hereunder shall be delivered to the Client for the use of the Client. Engineer shall have the right to retain originals of all Project Documents and drawings for its files. Furthermore, it is understood and agreed that the Project Documents such as, but not limited to reports, calculations, drawings, and specifications prepared for the Project, whether in hard copy or machine readable form, are instruments of professional service intended for one-time use in the construction of this Project. These Project Documents are and shall remain the property of the Engineer. The Client may retain copies, including copies stored on magnetic tape or disk, for information and reference in connection with the occupancy and use of the Project. When and if record drawings are to be provided by the Engineer,Client understands that information used in the preparation of record drawings is provided by others and Engineer is not responsible for accuracy, completeness, nor sufficiency of such information, Client also understands that the level of detail illustrated by record drawings will generally be the same as the level of detail illustrated by the design drawing used for project construction. If additional detail is requested by the Client to be included on the record drawings, then the Client understands and agrees that the Engineer will be due additional compensation for additional services. It is also understood and agreed that because of the possibility that information and data delivered in machine readable form may be altered,whether inadvertently or otherwise, the Engineer reserves the right to retain the original tapes/disks and to remove from copies provided to the Client all identification reflecting the involvement of the Engineer in their preparation. The Engineer also reserves the right to retain hard copy originals of all Project Documentation delivered to the Client in machine readable form, which originals shall be referred to and shall govern in the event of any inconsistency between the two. The Client understands that the automated conversion of information and data from the system and format used by the Engineer to an alternate system or format cannot be accomplished without the introduction of inexactitudes, anomalies, and errors. In the event Project Documentation provided to the Client in machine readable form is so converted,the Client agrees to assume all risks associated therewith and,to the fullest 2 extent permitted by law, to hold harmless and indemnify the Engineer from and against all claims, liabilities, losses, damages, and costs, including but not limited to attorney's fees, arising therefrom or in connection therewith. The Client recognizes that changes or modifications to the Engineer's instruments of professional service introduced by anyone other than the Engineer may result in adverse consequences which the Engineer can neither predict nor control. Therefore, and in consideration of the Engineer's agreement to deliver its instruments of professional service in machine readable form, the Client agrees, to the fullest extent permitted by law,to hold harmless and indemnify the Engineer from and against all claims, liabilities, losses, damages, and costs,including but not limited to attorney's fees, arising out of or in any way connected with the modification, misinterpretation, misuse, or reuse by others of the machine readable information and data provided by the Engineer under this Agreement. The foregoing indemnification applies,without limitation, to any use of the Project Documentation on other projects, for additions to this Project, or for completion of this Project by others, excepting only such use as may be authorized, in writing, by the Engineer. 7. Reuse of Documents: All Project Documents including but not limited to reports, opinions of probable costs,drawings and specifications furnished by Engineer pursuant to this Agreement are intended for use on the Project only. They cannot be used by Client or others on extensions of the Project or any other project. Any reuse, without specific written verification or adaptation by Engineer, shall be at Client's sole risk, and Client shall indemnify and hold harmless Engineer from all claims,damages,losses,and expenses including attorney's fees arising out of or resulting therefrom. The Engineer shall have the right to include representations of the design of the Project, including photographs of the exterior and interior,among the Engineer's promotional and professional materials, The Engineer's materials shall not include the Client's confidential and proprietary information if the Client has previously advised the Engineer in writing of the specific information considered by the Client to be confidential and proprietary. & Standard of Practice: The Engineer will strive to conduct services under this agreement in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions as of the date of this Agreement. 9. Compliance With Laws: The Engineer will strive to exercise usual and customary professional care in his/her efforts to comply with those laws, codes, ordinance and regulations which are in effect as of the date of this Agreement. With specific respect to prescribed requirements of the Americans with Disabilities Act of 1990 or certified state or local accessibility regulations(ADA),Client understands ADA is a civil rights legislation and that interpretation of ADA is a legal issue and not a design issue and, accordingly, retention of legal counsel (by Client) for purposes of interpretation is advisable. As such and with respect to ADA, Client agrees to waive any action against Engineer,and to indemnify and defend Engineer against any claim arising from Engineer's alleged failure to meet ADA requirements prescribed. 3 i i Further to the law and code compliance, the Client understands that the Engineer will strive to provide designs in accordance with the prevailing Standards of Practice as previously set forth, but that the Engineer does not warrant that any reviewing agency having jurisdiction will not for its own purposes comment, request changes and/or additions to such designs. In the event such design requests are made by a reviewing agency, but which do not exist in the form of a written regulation, ordinance or other similar document as published by the reviewing agency, then such design changes (at substantial variance from the intended design developed by the Engineer), if effected and incorporated into the project documents by the Engineer, shall be considered as Supplementary Task(s) to the Engineer's Scope of Service and compensated for accordingly. 10. Indemnification: Engineer shall indemnify and hold harmless Client up to the amount of this contract fee(for services)from loss or expense,including reasonable attorney's fees for claims for personal injury(including death)or property damage to the extent caused by the sole negligent act, error or omission of Engineer. Client shall indemnify and hold harmless Engineer under this Agreement, from loss or expense, including reasonable attorney's fees,for claims for personal injuries(including death)or property damage arising out of the sole negligent act,error omission of Client. In the event of joint or concurrent negligence of Engineer and Client,each shall bear that portion of the loss or expense that its share of the joint or concurrent negligence bears to the total negligence(including that of third parties),which caused the personal injury or property damage. Engineer shall not be liable for special, incidental or consequential damages, including, but not limited to loss of profits, revenue, use of capital, claims of customers, cost of purchased or replacement power, or for any other loss of any nature,whether based on contract,tort, negligence, strict liability or otherwise, by reasons of the services rendered under this Agreement. 11. Opinions of Probable Cost: Since Engineer has no control over the cost of labor, materials or equipment, or over the Contractor(s) method of determining process, or over competitive bidding or market conditions, his/her opinions of probable Project Construction Cost provided for herein are to be made on the basis of his/her experience and qualifications and represent his/her judgement as a design professional familiar with the construction industry, but Engineer cannot and does not guarantee that proposal, bids or the Construction Cost will not vary from opinions of probable construction cost prepared by him/her. If prior to the Bidding or Negotiating Phase, Client wishes greater accuracy as to the Construction Cost, the Client shall employ an independent cost estimator Consultant for the purpose of obtaining a second construction cost opinion independent from Engineer. 12. Governing Law & Dispute Resolutions: This Agreement shall be governed by and construed in accordance with Articles previously set forth by(Item 9 of)this Agreement, together with the laws of the State of Illinois. 4 Any claim,dispute or other matter in question arising out of or related to this Agreement, which can not be mutually resolved by the parties of this Agreement,shall be subject to mediation as a condition precedent to arbitration (if arbitration is agreed upon by the parties of this Agreement) or the institution of legal or equitable proceedings by either party. If such matter relates to or is the subject of a lien arising out of the Engineer's services, the Engineer may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by arbitration. The Client and Engineer shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Requests for mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 13. Successors and Assigns: The terms of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns: provided, however, that neither party shall assign this Agreement in whole or in part without the prior written approval of the other. 14. Waiver of Contract Breach: The waiver of one party of any breach of this Agreement or the failure of one party to enforce at any time, or for any period of time, any of the provisions hereof, shall be limited to the particular instance, shall not operate or be deemed to waive any future breaches of this Agreement and shall not be construed to be a waiver of any provision, except for the particular instance. 15. Entire Understanding of Agreement: This Agreement represents and incorporates the entire understanding of the parties hereto, and each party acknowledges that there are no warranties, representations, covenants or understandings of any kind, matter or description whatsoever, made by either party to the other except as expressly set forth herein. Client and the Engineer hereby agree that any purchase orders, invoices, confirmations,acknowledgments or other similar documents executed or delivered with respect to the subject matter hereof that conflict with the terms of the Agreement shall be null, void&without effect to the extent they conflict with the terms of this Agreement. 16. Amendment: This Agreement shall not be subject to amendment unless another instrument is duly executed by duly authorized representatives of each of the parties and entitled "Amendment of Agreement". 5 17. Severability of Invalid Provisions: If any provision of the Agreement shall be held to contravene or to be invalid under the laws of any particular state, county or jurisdiction where used, such contravention shall not invalidate the entire Agreement, but it shall be construed as if not containing the particular provisions held to be invalid in the particular state, country or jurisdiction and the rights or obligations of the parties hereto shall be construed and enforced accordingly. 18. Force Maieure: Neither Client nor Engineer shall be liable for any fault or delay caused by any contingency beyond their control including but not limited to acts of God, wars, strikes,walkouts,fires, natural calamities,or demands or requirements of governmental agencies. 19. Subcontracts: Engineer may subcontract portions of the work, but each subcontractor must be approved by Client in writing. 20. Access and Permits: Client shall arrange for Engineer to enter upon public and private property and obtain all necessary approvals and permits required from all governmental authorities having jurisdiction over the Project. Client shall pay costs (including Engineer's employee salaries, overhead and fee) incident to any effort by Engineer toward assisting Client in such access, permits or approvals, if Engineer perform such services. 21. Designation of Authorized Representative: Each party (to this Agreement) shall designate one or more persons to act with authority in its behalf in respect to appropriate aspects of the Project. The persons designated shall review and respond promptly to all communications received from the other party. 22. Notices: Any notice or designation required to be given to either party hereto shall be in writing, and unless receipt of such notice is expressly required by the terms hereof shall be deemed to be effectively served when deposited in the mail with sufficient first class postage affixed, and addressed to the party to whom such notice is directed at such party's place of business or such other address as either party shall hereafter furnish to the other party by written notice as herein provided. 23. Limit of Liability: The Client and the Engineer have discussed the risks, rewards, and benefits of the project and the Engineer's total fee for services. in recognition of the relative risks and benefits of the Project to both the Client and the Engineer, the risks have been allocated such that the Client agrees that to the fullest extent permitted by law, the Engineer's total aggregate liability to the Client for any and all injuries, claims, costs, losses, expenses, damages of any nature whatsoever or claim expenses arising out of this Agreement from any cause or causes, including attorney's fees and costs, and expert witness fees and costs; shall not exceed the total Engineer's fee for professional engineering services rendered on this project as made part of this Agreement. Such causes included but are not limited to the Engineer's negligence, errors, omissions, strict liability or breach of contract. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law. 6 24. Client's Responsibilities: The Client agrees to provide full information regarding requirements for and about the Project, including a program which shall set forth the Client's objectives, schedule, constraints, criteria, special equipment, systems and site requirements. The Client agrees to furnish and pay for all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services which the Client may require to verify the Contractor's Application for Payment or to ascertain how or for what purpose the Contractor has used the money paid by or on behalf of the Client. The Client agrees to require the Contractor, to the fullest extent permitted by law, to indemnify, hold harmless, and defend the Engineer, its consultants,and the employees and agents of any of them from and against any and all claims, suits, demands, liabilities, losses, damages, and costs ("Losses"), including but not limited to costs of defense, arising in whole or in part out of the negligence of the Contractor, its subcontractors, the officers, employees, agents, and subcontractors of any of them, or anyone for whose acts any of them may be liable, regardless of whether or not such Losses are caused in part by a party indemnified hereunder. Specifically excluded from the foregoing are Losses arising out of the preparation or approval of maps, drawings, opinions,reports, surveys,change orders,designs, or specifications,and the giving of or failure to give directions by the Engineer, its consultants,and the agents and employees of any of them, provided such giving or failure to give is the primary cause of Loss. The Client also agrees to require the Contractor to provide to the Engineer the required certificate of insurance. The Client further agrees to require the Contractorto name the Engineer, its agents and consultants as additional insureds on the Contractor's policy or policies of comprehensive or commercial general liability insurance. Such insurance shall include products and completed operations and contractual liability coverages, shall be primary and noncontributing with any insurance maintained by the Engineer or its agents and consultants,and shall provide that the Engineer be given thirty days, unqualified written notice prior to any cancellation thereof. In the event the foregoing requirements, or any of them, are not established by the Client and met by the Contractor,the Client agrees to indemnify and hold harmless the Engineer, its employees, agents, and consultants from and against any and all Losses which would have been indemnified and insured against by the Contractor, but were not. When Contract Documents prepared under the Scope of Services of this contract require insurance(s) to be provided, obtained and/or otherwise maintained by the Contractor, the Client agrees to be wholly responsible for setting forth any and all such insurance requirements. Furthermore, any document provided for Client review by the Engineer under this Contract related to such insurance(s)shall be considered as sample insurance requirements and not the recommendation of the Engineer. Client agrees to have their own risk management department review any and all insurance requirements for adequacy and to determine specific types of insurance(s) required for the project. Client further agrees that decisions concerning types and amounts of insurance are 7 I specific to the project and shall be the product of the Client. As such, any and all insurance requirements made part of Contract Documents prepared by the Engineer are not to be considered the Engineer's recommendation,and the Client shall make the final decision regarding insurance requirements. 25. Information Provided by Others: The Engineer shall indicate to the Client the information needed for rendering of the services of this Agreement. The Client shall provide to the Engineer such information as is available to the Client and the Client's consultants and contractors,and the Engineer shall be entitled to rely upon the accuracy and completeness thereof, The Client recognizes that it is impossible for the Engineer to assure the accuracy, completeness and sufficiency of such information, either because it is impossible to verify, or because of errors or omissions which may have occurred in assembling the information the Client is providing. Accordingly, the Client agrees,to the fullest extent permitted by law,to indemnify and hold the Engineer and the Engineer's subconsultants harmless from any claim, liability or cost (including reasonable attorneys' fees and cost of defense) for injury or loss arising or allegedly arising from errors, omissions or inaccuracies in documents or other information provided by the Client to the Engineer. 26, Payment: Client shall be invoiced once each month for work performed during the preceding period. Client agrees to pay each invoice within thirty(30)days of its receipt. The client further agrees to pay interest on all amounts invoiced and not paid or objected to for valid cause within said thirty (30) day period at the rate of eighteen (18) percent per annum (or the maximum interest rate permitted under applicable law, whichever is the lesser) until paid. Client further agrees to pay Engineer's cost of collection of all amounts due and unpaid after sixty (60) days, including court costs and reasonable attorney's fees, as well as costs attributed to suspension of services accordingly and as follows: Collection Costs. In the event legal action is necessary to enforce the payment provisions of this Agreement, the Engineer shall be entitled to collect from the Client any judgement or settlement sums due, reasonable attorneys'fees, court costs and expenses incurred by the Engineer in connection therewith and, in addition, the reasonable value of the Engineer's time and expenses spent in connection with such collection action,computed at the Engineer's prevailing fee schedule and expense policies. Suspension of Services. If the Client fails to make payments when due or otherwise is in breach of this Agreement, the Engineer may suspend performance of services upon five (5) calendar days' notice to the Client. The Engineer shall have no liability whatsoever to the Client for any costs or damages as a result of such suspension caused by any breach of this Agreement by the Client. Client will reimburse Engineer for all associated costs as previously set forth in (Item 4 of) this Agreement. 27. When construction observation tasks are part of the service to be performed by the Engineer under this Agreement, the Client will include the following clause in the construction contract documents and Client agrees not to modify or delete it: 8 Kotecki Waiver. Contractor(and any subcontractor into whose subcontract this clause is incorporated)agrees to assume the entire liability for all personal injury claims suffered by its own employees, including without limitation claims under the Illinois Structural Work Act, asserted by persons allegedly injured on the Project; waives any limitation of liability defense based upon the Worker's Compensation Act, court interpretations of said Act or otherwise; and to the fullest extent permitted by law, agrees to indemnify and hold harmless and defend Owner and Engineer and their agents, employees and consultants (the "Indemnitees") from and against all such loss, expense, damage or injury, including reasonable attorneys' fees, that the Indemnitees may sustain as a result of such claims, except to the extent that Illinois law prohibits indemnity for the lndemnitees'own negligence. The Owner and Engineer are designated and recognized as explicit third party beneficiaries of the Kotecki Waiver within the general contract and all subcontracts entered into in furtherance of the general contract. 28. Job Site Safety/Supervision & Construction Observation: The Engineer shall neither have control over or charge of, nor be responsible for,the construction means, methods, techniques, sequences of procedures, or for safety precautions and programs in connection with the Work since they are solely the Contractor's rights and responsibilities.The Client agrees that the Contractor shall supervise and direct the work efficiently with his/her best skill and attention; and that the Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures of construction and safety at the job site. The Client agrees and warrants that this intent shall be carried out in the Client's contract with the Contractor.The Client further agrees that the Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the work, and that the Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to all employees on the subject site and all other persons who may be affected thereby. The Engineer shall have no authority to stop the work of the Contractor or the work of any subcontractor on the project. When construction observation services are included in the Scope of Services, the Engineer shall visit the site at intervals appropriate to the stage of the Contractor's operation, or as otherwise agreed to by the Client and the Engineer to: 1) become generally familiar with and to keep the Client informed about the progress and quality of the Work; 2) to strive to bring to the Client's attention defects and deficiencies in the Work and; 3) to determine in general if the Work is being performed in a manner indicating that the Work,when fully completed, will be in accordance with the Contract Documents. However, the Engineer shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. If the Client desires more extensive project observation, the Client shall request that such services be provided by the Engineer as Additional and Supplemental Construction Observation Services in accordance with the terms of this Agreement. The Engineer shall not be responsible for any acts or omissions of the Contractor, subcontractor, any entity performing any portions of the Work, or any agents or employees of any of them. The Engineer does not guarantee the performance of the 9 Contractor and shall not be responsible for the Contractor's failure to perform its Work in accordance with the Contract Documents or any applicable laws, codes, rules or regulations. When municipal review services are included in the Scope of Services, the Engineer (acting on behalf of the municipality), when acting in good faith in the discharge of its duties, shall not thereby render itself liable personally and is, to the maximum extent permitted by law, relieved from all liability for any damage that may accrue to persons or property by reason of any act or omission in the discharge of its duties.Any suit brought against the Engineer which involve the acts or omissions performed by it in the enforcement of any provisions of the Client's rules, regulation and/or ordinance shall be defended by the Client until final termination of the proceedings. The Engineer shall be entitled to all defenses and municipal immunities that are, or would be, available to the Client. 29. Insurance and Indemnification:The Engineer and the Client understand and agree that the Client will contractually require the Contractor to defend and indemnify the Engineer and/or any subconsultants from any claims arising from the Work. The Engineer and the Client further understand and agree that the Client will contractually require the Contractor to procure commercial general liability insurance naming the Engineer as an additional named insured with respect to the work. The Contractor shall provide to the Client certificates of insurance evidencing that the contractually required insurance coverage has been procured. However,the Contractor's failure to provide the Client with the requisite certificates of insurance shall not constitute a waiver of this provision by the Engineer. The Client and Engineer waive all rights against each other and against the Contractor and consultants, agents and employees of each of them for damages to the extent covered by property insurance during construction. The Client and Engineer each shall require similar waivers from the Contractor, consultants, agents and persons or entities awarded separate contracts administered under the Client's own forces. 30. Hazardous Materials/Pollutants: Unless otherwise provided by this Agreement, the Engineer and Engineer's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials/pollutants in any form at the Project site, including but not limited to mold/mildew, asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic/hazardous/pollutant type substances. Furthermore, Client understands that the presence of mold/mildew and the like are results of prolonged or repeated exposure to moisture and the lack of corrective action. Client also understands that corrective action is a operation, maintenance and repair activity for which the Engineer is not responsible. June 13,2005 PAProposals\Terms and CondltlonskGT&C 2005.064305.doc 1a ATTACHMENT C RIDER RIDER NO. 1 TO AGREEMENT DATED , 2015 BETWEEN THE VILLAGE OF OAK BROOK, ILLINOIS AND CHRISTOPHER B. BURKE ENGINEERING, LTD. FOR THE 2015 STREET IMPROVEMENT PROJECT R-1. Conflicts. This Rider constitutes a part of the agreement ("Agreement") dated 2015 between the Village of Oak Brook, Illinois ("Village") and Christopher B. Burke Engineering, Ltd. ("Engineer") for the 2015 Street Improvement Project ("Project"). In the event of any conflict between the terms and provisions of this Rider and those contained in the Agreement or any other contract document; the terms and provisions of this Rider shall prevail. R-2. Commencement. The date of commencement of Work by the Engineer shall be agreed upon by both the Village and Engineer. R-3. Statutory Provisions. The Engineer shall comply with the provisions of the Employment of Illinois Workers on Public Works Act, 30 ILCS 57010.01, et seq.; the Drug Free Workplace Act, 30 ILCS 580/1, et seq.; the Human Rights Act, 775 ILCS 5/1-101, et seq.; and the Prevailing Wage Act, 820 ILCS 130/0.01, et seq.; the Veterans Preference Act, 330 ILCS 55/0.01 et seq.; but nothing herein shall require the application of those Acts unless required by state law. R-4. Bid Rigging. The Engineer hereby certifies that it is not barred from bidding on or entering into this Agreement as a result of a violation of Article 33E of the Criminal Code of .1961, 720 ILCS 5/1-1, et seq. R-5. Arbitration/Litigation/Venue. All disputes between the Village and the Engineer shall, at the election of either party, be the subject of a civil suit. Venue for any such suit shall lie in the Circuit Court of the 18th Judicial Circuit (DuPage County). R-6. Termination. The Village reserves the right at any time and in its absolute discretion to terminate the services of the Engineer by giving written notice to the Engineer. In such event, the Engineer shall be entitled to, and the Village shall reimburse the Engineer for, an equitable portion of the Engineer's fee based on the portion of the services completed prior to the effective date of termination. R-7. Miscellaneous. The provisions which follow shall apply generally to the obligations of the parties under this Agreement: a. This Agreement may not be amended except pursuant to a written instrument signed by both parties. b. This Agreement is binding upon the successors and assigns of the Parties. C. The waiver by either party of any breach or violation of any provision of this agreement shall not be deemed to be a waiver or a continuing Page 1 1135480424 vl waiver of any subsequent breach or violation of the same or any other provision of this Agreement. d. Each of the parties to this Agreement represents and warrants that it has the full right, power, legal capacity, and authority to enter into and perform its respective obligations hereunder and that such obligations shall be binding upon such party without the requirement of the approval or consent of any other person or entity in connection herewith. e. This Agreement contains the entire understanding between the Parties with respect to the subject matter herein. There are no representations, agreements, or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement which are not fully expressed herein. f. This Agreement creates no rights, title or interest in any person or entity whatsoever (whether under a third party beneficiary theory or otherwise) other than the Parties. g. This Agreement may be executed in counterparts. Facsimile signatures shall be sufficient. h. Under no circumstances shall this Agreement be construed as one of agency, partnership, joint venture, or employment between the Parties. The Parties shall each be solely responsible for the conduct of their respective officers, employees and agents in connection with the performance of their obligations under this Agreement. R-8 Burke Terms and Conditions not Applicable. The Village and Engineer acknowledge that the Engineer's proposal attached to this Agreement and setting forth the services, pricing, and time schedules that are incorporated in the Agreement as appendices 1, II, and III ("Proposal"), also includes a copy of that certain document entitled "Christopher B. Burke Engineering, Ltd. General Terms and Conditions", consisting of 10 pages and 30 paragraphs dated June 13, 2005 (collectively, the "Burke Terms and Conditions"). The Village and the Engineer acknowledge and agree that the Burke Terms and Conditions: (1) do not and are not intended to bind the parties to this Agreement, (2) are not incorporated as terms or conditions of the Agreement, (3) are entirely superseded by the terms of the Agreement, and (4) are included in the attached Proposal for the sole purpose of accurately depicting the Proposal as submitted to the Village. The execution of this Agreement by the Village does not constitute, nor shall be interpreted as, an acceptance by the Village of the Burke Terms and Conditions or the incorporation of the Burke Terms and Conditions into this Agreement. Page 2 #35480429 vl VILLAGE OF OAK BROOK CHRISTOPHER B. BURKE ENGINEERING, LTD. By: By'�K* Go a I mmaIani v c�- Village President Its:�President Attest: Attest: By: By: Charlotte Pruss Village Clerk Its: Executive ssistant Page 3 435480429 vi ATTACHMENT D INSURANCE REQUIREMENTS i I INSURANCE: Certificates of Insurance shall be presented to the Village upon execution of this contract and vendor shall not commence work until it provides and receives acceptance of insurance certificates from the Village as required by this exhibit. Each contractor performing any work pursuant to a contract with the Village of Oak Brook and each permittee working under a permit as required pursuant to the provisions of Title 1 of Chapter 8 of the Code of Ordinances of the Village of Oak Brook (hereinafter referred to as "Insured") shall be required to carry such insurance as specified herein. Such contractor and permittee shall procure and maintain for the duration of the contract or permit insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work under the contract or permit, either by the contractor, permittee, or their agents, representatives, employees or subcontractors. A contractor or permittee shall maintain insurance with limits no less than: A. General Liability - $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage, provided that when the estimated cost of the work in question does not exceed $25,000, the required limit shall be $1,000,000; B. Automobile Liability (if applicable) - $1,000,000 combined single limit per accident for bodily injury and property damage; C. Worker's Compensation and Employer's Liability - Worker's Compensation limits as required by the Labor Code of the State of Illinois and Employer's Liability limits of$1,000,000 per accident. Any deductibles or self-insured retention must be declared to and approved by the Village. At the option of the Village, either the insurer shall reduce or eliminate such deductible or self-insured retention as respects the Village, its officers, officials, employees and volunteers; or the Insured shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses to the extent of such deductible or self- insured retention. The policies shall contain, or be endorsed to contain, the following provisions: D. General Liability and Automobile Liability Coverage- i f i (1) The Village, its officers, officials, employees and volunteers are to be covered as addifional insureds as respects: liability arising out of activities performed by or on behalf of the Insured; premises owned, occupied or used by the Insured. The coverage shall contain no special limitations on the scope of protection afforded to the Village, its officers, officials, employees, volunteers, or agents. (2) The Insured's insurance coverage shall be primary insurance as respects the Village, its officers, officials, employees, volunteers and agents. Any insurance or self-insurance maintained by the Village, its officers, officials, employees, volunteers or agents shall be in excess of the Insured's insurance and shall not contribute with it. (3) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Village, its officers, officials, employees, volunteers or agents. (4) The Insureds insurance shall apply separately to each covered party against whom claim is made or suit is brought except with respect to the limits of the insurer's liability. E. Worker's Compensation and Employer's Liability Coverage The policy shall waive all rights of subrogation against the Village, its officers, officials, employees, volunteers and agents for losses arising from work performed by the insured for the Village. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail has been given to the Village. Each insurance policy shall name the Village, its officers, officials and employees, volunteers and agents as additional Insureds. Insurance is to be placed with insurers with a Best's rating of no less than A: VII, Each Insured shall furnish the Village with certificates of insurance and with original endorsements effecting coverage required by this provision. The certificate and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms approved by the Village and shall be subject to approval by the Village Attorney before work commences. The Village reserves the right to require complete, certified copies of all required insurance policies, at any time. i Each insured shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.