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R-1269 - 06/11/2013 - ENGINEERING - ResolutionsRESOLUTION 2013 -ENG- DESIGN- AG -EX -R -1269 A RESOLUTION APPROVING AND AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND CHRISTOPHER B. BURKE ENGINEERING, LTD FOR ENGINEERING SERVICES FOR IMPROVEMENTS ALONG COMMERCE DRIVE WHEREAS, the Village desires to install a sidewalk and resurface the pavement along Commerce Drive from McDonald's Drive to the east end of Commerce Drive ( "Improvements"); and WHEREAS, the Improvements will allow pedestrians to more safely travel along Commerce Drive; and WHEREAS, the Village desires to retain a design engineer to design the Improvements ( "Services "); and WHEREAS, Christopher B. Burke Engineering, LTD ( "Burke ") has previously provided satisfactory engineering services to the Village in connection with various engineering and infrastructure projects; and WHEREAS, pursuant to the Local Government Professional Services Selection Act ( "Act'), 50 ILCS 51010.01 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 $29,850, which agreement is attached hereto as Exhibit A ( "Agreement'); 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 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 approved final Agreement on behalf of the Village. 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] APPROVED THIS 11th day of June, 2013 PASSED THIS 11th day of June, 2013 Resolution 2013 -ENG- DESIGN- AG -EX -R -1269 Engineering Services for Commerce Drive Improvements 2 of Gopal G. Lalmalani Village President Ayes: Trustees Adler, Baar, Mov, Wolin, Yusuf Absent: Trustee Manzo ATTEST: VIAnt�� Charlotte K. Pruss Village Clerk Resolution 2013 -ENG- DESIGN- AG -EX -R -1269 Engineering Services for Commerce Drive Improvements 3 of EXHIBIT A AGREEMENT ENGINEERING SERVICES AGREEMENT VILLAGE OF OAK BROOK Commerce Drive TCM Sidewalk Project and Resurfacing THIS AGREEMENT, made and entered into this _ day of June 2013, by and between Christopher B. Burke Engineering. Ltd. (hereinafter referred to as "ENGINEER ") and the Village of Oak Brook, a municipal corporation (hereinafter referred to as "VILLAGE ") covers certain professional engineering services in connection with the Commerce Drive TCM Sidewalk Proiect and Resurfacing, (hereinafter referred to as "PROJECT"). The VILLAGE wishes to retain ENGINEER for these certain professional engineering services and ENGINEER is willing to perform such services for the compensation and in accordance with the terns and conditions described in this Agreement. NOW, THEREFORE, in consideration of the mutual benefits, covenants and agreements contained within this Agreement, the parties agree as follows: SCOPE OF SERVICES ENGINEER agrees to perform engineering consulting services as defined in the Scope of Services attached as Appendix I and made a part of this Agreement. 2. COMPENSATION AND PAYMENT ENGINEER shall be paid by VILLAGE for all services stipulated within this Agreement according to the Compensation Schedule attached as Appendix II and made a part of this Agreement. Payment to ENGINEER shall be made by VILLAGE upon receipt of ENGINEER'S monthly invoice. The invoice shall consist of a summary of direct labor hours by ENGINEER'S standard job classification times the respective factors as depicted in Appendix II plus listing of reimbursable costs incurred with copies of appropriate invoices. The invoice will state the phase of work for which it applies, if a multi-phase scope is used (e.g., design, construction, etc.). If VILLAGE identifies an item in the invoice which appears to be in error, VILLAGE may withhold the amount in question, pay the balance of the invoiced amount, and provide ENGINEER with a statement concerning the questioned item. Alternatively, VILLAGE may pay the invoiced amount in full, provide ENGINEER with a statement of the questioned item, and an adjustment, if appropriate, will be made in the next subsequent invoice submitted by ENGINEER. Engineer will mark "Invoice number and final" on the invoice which closes out this contract or a phase of the contract. If VILLAGE fails to make any payment due ENGINEER for services and expenses, including amounts wrongly withheld, within thirty (30) days after submittal of ENGINEER'S billing thereof, the amounts due ENGINEER shall include a charge at the Page 1 rate of one percent (1.0) per month from such thirtieth (30th) day; and, in addition, the ENGINEER may, after giving seven (7) days written notice to VILLAGE, suspend services under this Agreement until it has been paid in full the amounts due it for services and expenses. During the period of any such suspension, the parties shall have the same rights and obligations as are provided by Subsection 5(e) of this Agreement. 3. TIME SCHEDULE The services required by this Agreement shall be completed in accordance with the Time Schedule attached as Appendix III and made a part of this Agreement. It is recognized by the parties that the Time Schedule may be contingent upon factors beyond the control of either party. Both parties will take all reasonable steps to adhere to the Time Schedule. 4. TERM OF AGREEMENT Unless extended by amendment, this Agreement shall terminate at the time of receipt of final payment by the ENGINEER, provided that all warranties and representations shall survive said final payment. 5. GENERAL TERMS AND CONDITIONS a. Modification The nature and the scope of services specified in this Agreement may only be modified by written amendment to this Agreement approved by both parties. b. Relationship between ENGINEER and VILLAGE ENGINEER shall serve as VILLAGE'S professional engineering consultant in those phases of the PROJECT to which this Agreement applies. The relationship is that of a buyer and seller of professional services, and it is understood that the parties have not entered into any joint venture or partnership with the other. C. Responsibility of the ENGINEER That all plans and other documents furnished by the ENGINEER pursuant to this Agreement will be endorsed by him and will show his professional seal where such is required by law. 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 VILLAGE and any other party concerning the PROJECT, 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 VILLAGE, the construction contractor, other contractors or subcontractors performing any of the work or providing any of the services on the PROJECT, nor shall ENGINEER be responsible for the acts or omissions of VILLAGE provided that the ENGINEER Page 2 #11850987_vl has properly executed his duties. ENGINEER shall not be responsible for the failure of VILLAGE, any architect, engineer, consultant, contractor or subcontractor to carry out their respective responsibilities in accordance with the PROJECT documents, 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 Subsection 5(c) is expressly amended for the purposes described in such amendment and is signed by ENGINEER. d. Corrections In the event plans, surveys or construction staking is found to be in error and revisions of the plans or survey or construction staking are necessary, the ENGINEER agrees that he will perform such work without expense to the VILLAGE, even though final payment has been received by him. He shall give immediate attention to these changes so there will be a minimum delay to the contractor. e. Suspension of Services VILLAGE 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 occurrence of costs allocable to the services covered by the order. ENGINEER will not be obligated to provide the same personnel employed prior to suspension when the services are resumed, in the event the period of any suspension exceeds thirty (30) days. £ Termination 1) The VILLAGE shall have the right to terminate this Agreement with or without cause upon serving thirty (30) days written notice upon the other party- 2) Upon such termination, the liabilities of the parties to this Agreement shall cease, but they shall not be relieved of the duty to perform their obligations up to the date of termination. All warranties and the provisions of Section 5, Paragraph I shall be in full force and effect after termination. 3) Upon such termination, ENGINEER shall cause to be delivered to the VILLAGE all drawings, specifications, partial and completed estimates, and any and all other data concerning the PROJECT which ENGINEER is then accomplishing for the VILLAGE. ENGINEER shall be paid for any services completed and any services partially completed in accordance with Sections 2 and 3. g. Warranties Page 3 ai is5ovs7yl In addition to the covenants herein made, the ENGINEER represents and certifies that its engineering services shall be performed in accordance with the standards of professional practice, care, and diligence practiced by recognized engineering firms in the industry in performing services of a similar nature in existence at the time of performance. The representations and certifications expressed shall be in addition to any other representations and certifications expressed in this Agreement, or expressed or implied by law, which are hereby reserved unto the VILLAGE. h. Representations In addition to the covenants herein made, the ENGINEER represents and agrees: 1) That all plans and special provisions to be furnished by the ENGINEER pursuant to this Agreement will be in accordance with the current standard specifications and policies of the VILLAGE, it being understood that all such plans and drafts shall, before being finally accepted, be subject to approval by the VILLAGE. 2) That he has not employed or retained any company or person, other than a bona fide employee working solely for the ENGINEER, to solicit or secure this Agreement, and that he has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the ENGINEER, any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of the Agreement. For breach or violation of this warranty, the VILLAGE shall have the right to annul this Agreement without liability, or in its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 3) The ENGINEER represents and certifies that the ENGINEER is not barred from contracting with a unit of state or local government as a result of: (1) a delinquency in the payment of any tax administered by the Illinois Department of Revenue, unless the ENGINEER is contesting, in accordance with the procedures established by the appropriate revenue act, its liability for the tax or the amount of the tax, as set forth in Section I I - 42.1-1 et seq. of the Illinois Municipal Code, 65 ILCS 5/11- 42.1 -1 et seq.; or (2) 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. ENGINEER represents that the only persons, firms, or corporations interested in this Agreement as principals are those disclosed to the VILLAGE prior to the execution of this Agreement, and that this Agreement is made without collusion with any other person, firm, or corporation. If at any time it shall be found that the ENGINEER has, in procuring this Agreement, colluded with any other person, firm, or corporation, then the ENGINEER shall be liable to the Village for all loss or damage that the VILLAGE may Page 4 #11850987_vl suffer, and this Agreement shall, at the VILLAGE's option, be null and void. 4) That he is qualified technically and is conversant with the policies applicable to the PROJECT; and that he has and will furnish sufficient, properly trained and experienced personnel to perform the services enumerated herein. 5) That he will not employ, for the duration of this Agreement, any person presently employed by the VILLAGE without the written consent of the VILLAGE. 6) ENGINEER represents and certifies that, to the best of its knowledge: (1) no elected or appointed VILLAGE official, employee or agent has a personal financial interest in the business of ENGINEER or in this Agreement, or has personally received payment or other consideration for this Agreement; (2) as of the date of this Agreement, neither ENGINEER nor any person employed or associated with ENGINEER has any interest that would conflict in any manner or degree with the performance of the obligations under this Agreement; and (3) neither ENGINEER nor any person employed by or associated with ENGINEER shall at any time during the term of this Agreement obtain or acquire any interest that would conflict in any manner or degree with the performance of the obligations under this Agreement. i. Documents Property of VILLAGE Drawings, specifications, reports, and any other documents prepared by ENGINEER in connection with any or all of the services finished hereunder shall be the property of VILLAGE and the VILLAGE shall obtain any and all intellectual property rights in the drawings, specifications, reports, and documents prepared by ENGINEER in connection with any and all of the services finished hereunder. ENGINEER shall have the right to retain copies of all documents and drawings for its files. All construction drawings shall be prepared electronically using MICROSTATION software. Paper copies will be provided to the VILLAGE in full -size (24" x 36 ") or quarter -size (11" x 17 ") as requested. Electronic design files will also be transferred to the VILLAGE. If construction services are a part of the ENGINEER'S work, he will create electronic "As- Built" conditions and will deliver them to the VILLAGE within thirty (30) days after completion of construction and before final payment to the ENGINEER. ENGINEER will title these files "Record Drawings ". If construction services are not part of the ENGINEER'S work, he will deliver electronic MICROSTATION files to the VILLAGE upon request and before final payment to the ENGINEER. Page 5 aus5o9s7_A j. Access to Records The ENGINEER shall maintain all books, documents, papers, accounting records and other evidence pertaining to his costs incurred by reason of this Agreement and agrees to make such material available, at his office at the address indicated in Section 5, Paragraph u of this Agreement, at all reasonable times during the life of this Agreement and for a period of three (3) years from the date of final payment of the obligations of this Agreement by the VILLAGE or such longer time as requested by the VILLAGE, for inspection by personnel of the VILLAGE, or any authorized representative of the VILLAGE, and copies thereof shall be furnished if requested. The cost of any copies shall be paid by the VILLAGE. k. Reuse of Documents All documents, including drawings and specifications furnished by ENGINEER pursuant to this Agreement, are intended for use on the PROJECT only. They should not be used or modified by VILLAGE or others on extensions of the PROJECT or any other project without specific written verification or adaptation by ENGINEER. Any reuse or modification without written verification or adaptation by ENGINEER shall be at VILLAGE'S sole risk. 1. Indemnification ENGINEER agrees to indemnify, hold harmless, and defend (or pay the VILLAGE for the costs of defense if the Village so desires in its sole discretion) the VILLAGE and any of its officers, employees, or agents from and against all liability, claims, demands, and causes of action arising out of or related to any loss, damage, injury, death, or loss or damage to property resulting from any negligence, errors or omissions by the ENGINEER in the performance of this Agreement. In the event of joint or concurrent negligence of ENGINEER and VILLAGE, 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. m. Entire Agreement This Agreement sets forth all the covenants, conditions and promises between the parties. There are no covenants, promises, agreements, conditions or understandings between the parties, either oral or written, other than those contained in this Agreement and the attached Rider No. 1. n. Governing Law This Agreement shall be governed by the laws of the State of Illinois both as to interpretation and performance. Page 6 k11850987_vl o. 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 proper written approval of the other. p. Waiver of Contract Breach The waiver of one party of any breach of this Agreement or the failure of one parry 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. q. Severability of Invalid Provisions If any provisions of this Agreement shall be held to contravene or 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 provision or provisions held to be invalid in the particular State, County or jurisdiction and the rights or obligations of the parties hereto shall be construed and enforced accordingly. r. Force Majeure Neither VILLAGE 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, or natural calamities. S. Access and Permits VILLAGE shall arrange for ENGINEER to enter upon public and private property and shall obtain all necessary approvals and permits required from all governmental authorities having jurisdiction over the PROJECT. t. Designation of Authorized Representatives Each party 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- u. Address for Notices Whenever it is provided in this Agreement that notice shall be given or other communication sent to ENGINEER, such notices or communications shall be delivered or sent to: Page 7 911850987_vl Christopher B. Burke Engineering, Ltd. 9575 West Higgins Road Suite 600 Rosemont, Illinois 60018 Attn: Orion Galey, PE Whenever it is provided in this Agreement that notice shall be given or other communication sent to the VILLAGE, such notices or communications shall be delivered or sent to: VILLAGE OF OAK BROOK 1200 Oak Brook Road Oak Brook, Illinois 60523 Attn: Michael Hullihan Public Works Director Notices personally delivered or sent via U.S. Mail, postage prepaid, shall be deemed, for all purposes, proper notice. V. Insurance ENGINEER agrees to obtain and maintain, for the term of this Agreement, and for a period of twelve (12) months after the services contracted for hereunder have been completed, insurance hereinafter provided, furnishing a certificate or certificates of insurance to the VILLAGE prior to commencing work under this Agreement. The certificate or certificates of insurance shall be in a form satisfactory to the VILLAGE from companies authorized to do business in Illinois and shall provide that the policies referred to shall not be canceled or changed without first giving thirty (30) days written notice thereof to the VILLAGE. Said insurance requirements are attached as Appendix IV and made a part of this Agreement ( "REQUIRED INSURANCE POLICIES "). The VILLAGE shall be named as an additional insured and a cancellation notice recipient on all Required Insurance Policies. W. Additional Services ENGINEER shall supply such additional services as requested in writing by VILLAGE and agreed to by ENGINEER in connection with the PROJECT. Separate proposals shall be submitted by ENGINEER for furnishing these additional services. Compensation for such additional services shall be negotiated by the parties and included in this Agreement by a written amendment. ENGINEER shall supply such additional services as requested in writing by VILLAGE and agreed to by ENGINEER in connection with the PROJECT. Separate proposals shall be submitted by ENGINEER for furnishing these Page 8 #11850987_vl additional services. Compensation for such additional services shall be negotiated by the parties and included in this Agreement by a written amendment. X. Time Time is of the essence in the performance of all terms and provisions of this Agreement. Y. Third Parry Beneficiary No claim as a third parry beneficiary under this Agreement by any person, firm, or corporation shall be made or be valid against the Village. Z. Conflicts If any provisions of this Agreement conflict with any provisions of the attached appendices I through IV, the provisions of this Agreement shall control. If any provisions this Agreement conflict with any provisions of the attached Rider No. 1, the provisions of Rider No. 1 shall control. If any provisions of the attached appendices I through IV conflict with any I conflict with any provisions of the attached Rider No. 1, the provisions of Rider No. 1 shall control. IN WITNESS WHEREOF, the parties set their hands and seals on the date first written above. VILLAGE OAK BROOK A Municin Corrooration Village Christo her B. Burke Engineering, Lt2 1 C Duly Authorized O cer Page 9 #11850987_vl Clerk 0990�f�7 ►:f1 SCOPE OF SERVICES Per proposal submitted by Christopher B. Burke Engineering, Ltd., Ltd. dated June 4, 2013 Page 10 #11850987_vl APPENDIX II COMPENSATION SCHEDULE Per proposal submitted by Christopher B. Burke Engineering, Ltd., Ltd. dated June 4, 2013. Page 11 #11850987_v1 G�;��l�l�] ►:iii TIME SCHEDULE Per proposal submitted by Christopher B. Burke Engineering, Ltd., Ltd. dated June 4, 2013. Page 12 #11850987 vl APPENDIX IV Insurance Engineer shall maintain for the term of this Agreement, and for a period of twelve months after the services is contracted for hereunder have been completed, insurance policies covering: Workers Compensation: Statutory. 2. Employers Liability Insurance: $1,000,000 injury-per occurrence $500,000 disease -per employee $1,000,000 disease- policy limit Such insurance shall evidence that coverage applies in the State of Illinois. Comprehensive General Liability Insurance: $2,000,000 per occurrence combined single limit. Coverages shall include Broad Form Property Damage Endorsements and Blanket Contractual Liability (must expressly cover the indemnity provisions of the Agreement). 4. Comprehensive Automobile Liability Insurance: $1,000,000 combined single limit, any auto. 5. Professional Liability Insurance (errors and omissions): $1,000,000 per claim and $2,000,000 in aggregate. 6. Umbrella or excess liability: The required coverages may be in any combination of primary, excess, and umbrella policies. Any excess or umbrella policy must provide excess coverage over underlying insurance on a following -form basis such that when any loss covered by the primary policy exceeds the limits under the primary policy, the excess or umbrella policy becomes effective to cover such loss. 7. Engineer will provide the Village with a certificate of insurance and additional insured endorsement showing the Village added to the General Liability Insurance as an additional insured. Coverage shall not be suspended, voided, canceled, or reduced except after thirty (30) days prior written notice by certified mail has been given to the Village. If a standard Certificate of Insurance form is used with a cancellation clause, the words "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives" will be stricken or crossed out. Page 13 x11850987_vl RIDER NO. 1 TO AGREEMENT DATED . 2013 BETWEEN THE VILLAGE OF OAK BROOK, ILLINOIS AND CHRISTOPHER B. BURKE ENGINEERING, LTD. FOR THE Commerce Drive TCM Sidewalk Project and Resurfacing R -1. Conflicts. This Rider constitutes a part of the agreement ( "Agreement ") dated , 2013 between the Village of Oak Brook, Illinois ( "Village ") and Christopher B. Burke Engineering, Ltd. ( "Engineer") for the Commerce Drive TCM Sidewalk Project and Resurfacing ( "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 570/0.01, 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/Liti-gation/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 18"' 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 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 Page 1 commerce drive tern sidewalk project and resurfacing engineering iidei no 1.docx 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 I, 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. VILLAGE OF O/JiK BROOK CHRISTOPHER B. BURKE 1 / _,01P ENGI77 /) ING, LTD. n Gopal Lalmalani Village President Attest: gy. By:` Charlotte Pruss /J Village Clerk Its: J*-,1,&e 1�55Y--74 Page 2 commerce drive tcm sidewalk project and resurfacing engineering rider no I.doex