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R-1307 - 10/22/2013 - ENGINEERING - Resolutions RESOLUTION 2013-ENG-ST-PRJT-R-1307 A RESOLUTION APPROVING AND AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND CHRISTOPHER B. BURKE ENGINEERING, LTD FOR DESIGN SERVICES RELATED TO THE 2014 STREET IMPROVEMENT PROJECT WHEREAS, the Village has budgeted funds for the design and bidding of the 2014 Street Improvement Project("Project') in its budget for Fiscal Year 2013; and WHEREAS, the Village desires to retain an engineer to provide engineering design and bidding 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, and 2013 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 $84,200.00 ("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. 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] Resolution 2013- ENG-ST-PRJT-R-1307 Engineering Design Services for 2014 Street Improvement Project 2 of 3 APPROVED THIS 22nd day of October, 2013 r Gopal G. Lalmalani Village President PASSED THIS 22nd day of October, 2013 Ayes: Trustees Adler, Baar, Manzo, Moy, Wolin, Yusuf Nays: None Absent: NnnP ATTEST: r " s kf Charlotte K. Pruss ZA z a 'Willage Clerk i #26061041 v1 �� �:" Resolution 2013- ENG-ST-PRJT-R-1307 Engineering Design Services for 2014 Street Improvement Project 3 of 3 EXHIBIT A AGREEMENT L noB CHRISTOPHER B. BURKE ENGINEERING,LTD. 9575 W.Higgins Road,Suite 600 Rosemont,Illinois 60018-4920 TEL(847)823-0500 FAX(847)823-0520 August 3, 2013 REVISED October 9, 2013 Village of Oak Brook 1 1200 Oak Brook Road 4 { Oak Brook, IL 60523 i U L OCT 1 4 2n13 Attention: Mr. Michael Hullihan, PE, Public Works Director U!LLA� n:r�,.., , Subject: Proposal for Professional Engineering Services Er c r R i n r , c T 2014 Street Improvement Project Dear Mr. Hullihan: At your request, we are providing this proposal to provide professional engineering services related to the preparation of the plans, specifications, and bidding documents for the Village's 2014 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 the streets located in four areas throughout the Village. These projects are described as the 2014 Street Improvement Project. The project areas and proposed improvements are as follows: Area 1 (Coolidge Street) The proposed improvements Will include the reconstruction of Coolidge Street from 31St Street to the terminus; approximately 1,140 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 2% and a turnaround shall be provided at the north terminus. Improvements will.also include installation of new 12" storm sewers, installation of drainage structures, and all necessary restoration. Area 2 (35th Street): This work will involve resurfacing and widening of 35th Street from Adams Road west to the dead end. The street shall be widened an additional foot on either side to maintain a 20 foot wide cross section. The widening will involve removing the outer 3 feet on either side of the existing pavement and constructing new 4 foot wide pavement. The widening will include aggregate base course, type B, 6" and 3" hot- mix asphalt binder course. The remaining pavement surface shall then be milled 3", strip reflective crack control will cover the longitudinal joint and hot-mix asphalt leveling binder 1" and 2" hot-mix asphalt surface course will be installed across the entire width of pavement. 18" wide aggregate shoulders and all necessary restoration will also be included. Area 3 (Golf Drive): Golf Drive improvements will involve the resurfacing of Golf Drive from York Road to the end of the Oak Brook Golf Course parking lot and the reconstruction of the access road from the parking lot to the north end of the driving range. The resurfacing area, approximately 1,780 square yards involves hot-mix asphalt surface removal, 3", hot-mix asphalt leveling binder, 1", and hot-mix asphalt surface course, 2". The reconstruction area, approximately 2,925 square yards, involves full depth pavement removal, hot-mix asphalt binder course, 4" and hot-mix asphalt surface course, 1.5". The reconstruction area will also involve widening in some areas to provide for 18 foot wide cross section throughout. Area 4 (Butler Government Center Parking Lot): This area includes reconstructing a portion of the Butler Government Center (Village Hall) parking lot as shown in the attached location map. 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. 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, 1" hot-mix asphalt leveling binder, and 2' hot-mix asphalt surface course. Area 5 (Fire Station #2): This area involves full depth PCC pavement patching of cracked sections of the rear access drive of Fire Station #2. Area 6 (Well House Parking Lot): This area includes reconstructing the wellhouse access drive and parking lot. The work involves full depth pavement removal, 2 1/4" hot-mix asphalt binder course and 1 3/4" hot-mix asphalt surface course. The estimated construction budget for the 2014 Street Improvement Project is approximately $875,000. It is anticipated that all areas will be bid as one project in 2014 and constructed during the 2014 construction season. SCOPE OF SERVICES DESIGN ENGINEERING: Design services will include geotechnical investigation, limited topographic survey, preparation of Contract Documents including plans and specifications, cost estimates, permitting and bidding assistance. Our scope of services includes, but is not limited to, the following: Task 1 — Pavement Cores: CBBEL will retain Testing Service Corp. (TSC) to rrform pavement cores of the subject streets. Four pavement cores will be taken along 35t Street and the Butler Government Center Parking Lot; two cores will be taken in each other area OCGlmc Page 2 of 7 N:\PR0P0SALS\ADMIN\2013\0ak Brook-2014 Street Improvement-Const Insp.101411doc for a total of 16 cores. Auger samples will also be obtained of underlying base course/subbase materials. A split-spoon will then be taken of the upper subgrade to a depth of approximately 3 feet below the top of pavement. The core holes will be patched upon completion using cold mix asphalt. The cores will be examined by a materials technician in the laboratory, who will accurately measure and describe the various pavement courses. Subgrade samples will also be examined by a soils technician. Laboratory testing will include moisture content and dry unit weight determinations as well as pocket penetrometer estimates of unconfined compressive strength, as appropriate. Upon completion of field and laboratory work, a Pavement Core Summary report will be completed. The report will give complete pavement and base course thicknesses as well as subgrade descriptions and laboratory test data that will be used to determine the best method of rehabilitation. Task 2 — Survey: CBBEL will perform a topographic survey of each area as required to adequately complete design. Coolidge and 35th Street surveys will extend from ROW to ROW. CBBEL will perform the following survey tasks (as needed only): Horizontal Control: Utilizing state plane coordinates, CBBEL will set recoverable primary control utilizing our GPS equipment. Vertical Control: CBBEL will perform a level circuit throughout the entire length of the project establishing benchmarks and assigning elevations to the horizontal control points. The elevations will be based on NGVD of 1929 to coincide with the DuPage County datum. Topographic Survey: CBBEL will field locate all pavements, driveways, curb and gutters, pavement markings, signs, manholes, utility vaults, drainage structures, cross road culverts, etc. Cross-Sections: CBBEL will survey cross-sections of all areas to the extent needed in each area. Utility Survey: CBBEL will utilize existing storm and sanitary sewer information that has been surveyed during the GIS Project for the Village. Above ground facilities of any additional underground utilities including watermain, gas, electric, cable, etc. will also be located. Tree Survey: CBBEL will locate all trees over 6 inches in diameter within the existing right of way. CBBEL will also obtain utility information from all known utility companies along the project corridor and include the utility information in the existing conditions base sheets developed from the above information. The base sheets will be drafted at a scale of 1"=20'. Task 3 — Field Reconnaissance: CBBEL Construction Staff will perform a Field Reconnaissance of the streets to be improved. The purpose of the Field Reconnaissance will be to determine the limits of curb and gutter repairs, sidewalk replacement to meet ADA requirements (if applicable), full depth pavement patching, and drainage issues. To ensure all existing drainage issues are detected, CBBEL will complete a site inspection following a rain event to determine any ponding locations. CBBEL will inspect existing conditions on Coolidge to determine the best route for the proposed sewer and will also review the existing drainage along Golf Drive to determine if the lines provide adequate drainage. The results of the Field Reconnaissance will be reviewed with the Engineering Department and OCGlmc Page 3 of 7 N:IPROPOSALSWDMINM13\Oak Brook-2014 Street Improvement-Const Insp.101413.doc compared to previous estimates to determine their impact on the estimated construction cost. Task 4 — Plans, Specifications, and Estimates: CBBEL will prepare Plans, Specifications and Estimates for the Street Improvements utilizing the information described in the above tasks. We will utilize information from our topographic survey in Task 2. Locations of new storm sewers and corresponding drainage structures will be drafted after coordination with the Village. Areas 5 and 6 will not be surveyed; aerials will be utilized to depict the proposed work at these locations. In addition, CBBEL will develop special provisions and estimates of cost and working days. The special provisions will be based on IDOT Standard Pay Items and Specifications. Hot- Mix Asphalt mix requirement specifications will be per the 2013 Paving Project. Plans will be submitted to the Village for review at the 75%, 90% and 100% level. Task 5 — Bidding Assistance: CBBEL will provide the Village with Plans, Specifications, and Contract Documents to be distributed to all bidders, and will be present at the bid opening to be held at Village Hall. CBBEL will review and tabulate all of the bids, check references, and make a recommendation of award. Task 6 —CCDD Evaluation and Report: CBBEL will also retain TSC perform a "Potentially Impacted Property" (PIP) evaluation for the completion of the LPC-662 Form and, if necessary, provide sampling and laboratory analyses for completion of the LPC-663 Form. Uncontaminated soil including uncontaminated soil mixed with clean construction or demolition debis (CCDD) accepted at a CCDD fill operation must be certified to be uncontaminated soil in accordance with Section 22.51(f)(2)(B) of the Environmental Protection Act [45 ILCS 5/22.51(f)(2)(13)]. Uncontaminated soil accepted at an uncontaminated soil fill operation must be certified to uncontaminated soil in accordance with Section 22.51 a(d)(2)(B) of the Environmental Protection Act [415 ILCS 5122.51 a(d)(2)(B). These certifications must be made by a licensed professional engineer or geologist (PE/PG) using the Form LPC-663 when the soil is removed from a site which is determined by the PE/PG to be a "Potentially Impacted Property" (PIP) based on review of readily ascertainable property history, environmental databases and site reconnaissance. Uncontaminated soil from a site which is not identified as a PIP by the PE/PG may be certified by either the source site owner or operator using a LPC-662 with pH analysis only. TSC will evaluate current Federal and State environmental agency records for the source site and vicinity by obtaining a Radius Map Report from Environmental Data Resources, Inc. (EDR). TSC will also perform a site reconnaissance to evaluate the property for evidence of the use or release of hazardous substances or petroleum products. A sample for pH analysis will be obtained from pavement cores outlined in Task 1. Based on the results of this review, the TSC Professional Geologist will conclude if the source sites are a PIP. If the source site is not identified as a PIP and pH analysis meet requirements, TSC will prepare a letter discussing the reviewed information and recommend that the Owner or Operator sign the LPC-662 Form certifying that the site is not a PIP and the soil is presumed to be uncontaminated. In the event that the source site is identified as PIP, soil sampling and analysis will be performed for completion of the LPC-663 form at additional costs of $1,200 per site. A summary report will be prepared which describes the sampling procedures and results of the analytical laboratory testing. If all analytical results meet their respective Maximum Allowable Concentrations of Chemical Constituents in Uncontaminated Soil Used as Fill OCGlmc g NAPROPOSALS\ADMIN\2013\0ak Brook-2014 Street Improvement-Const Insp.101413.doc Pa e 4 O 7 Material At Regulated Fill Operations (MACs), Form LPC-663 will be filled out and signed by a Licensed Professional Engineer or Geologist. Please note that signing of Form LPC-663 is contingent upon all constituents meeting their respective MACs. If any constituent exceeds the MACs, the Licensed Professional will not be able to certify the soil as uncontaminated. In that event, additional analysis may be required in connection with disposal at a Subtitle D landfill, at additional cost for consulting, analytical testing and completion of the wasted profile. DETERMINATION OF FEE CBBEL proposes the following not to exceed fees for each of the tasks described above for each Area: Area 1 (Coolidge Street): $80,000 Construction Estimate DESIGN ENGINEERING SERVICES Task 1 — Pavement Cores $ 800 Task 2—Survey $ 2,500 Task 3— Field Reconnaissance $ 2,000 Task 4— Plans, Specifications, and Estimates $ 8,250 Task 5— Bidding Assistance $ 350 Task 6 —CCDD Evaluation and Report LPC-662 500 Sub Total $14,400 Area 2 (35th Street): $375,000 Construction Estimate DESIGN ENGINEERING SERVICES Task 1 — Pavement Cores $ 1,200 Task 2—Survey $ 9,500 Task 3 — Field Reconnaissance $ 4,750 Task 4 — Plans, Specifications, and Estimates $13,050 Task 5— Bidding Assistance $ 350 Task 6 —CCDD Evaluation and Report LPC-662 500 Sub Total $29,350 Area 3 (Golf Drive): $215,000 Construction Estimate DESIGN ENGINEERING SERVICES Task 1 — Pavement Cores $ 800 Task 2—Survey $ 8,000 Task 3 — Field Reconnaissance $ 2,250 Task 4 — Preparation of Plans $ 9,750 Task 5— Bidding Assistance $ 350 Task 6 —CCDD Evaluation and Report LPC-662 500 Sub Total $21,650 OCG(mc g NAPROPOSALSWDMIN\2013\Oak Brook-2014 Street Improvement-Const Insp.101413.doc Pa e 5 0 Material At Regulated Fill Operations (MACs), Form LPC-663 will be filled out and signed by a Licensed Professional Engineer or Geologist. Please note that signing of Form LPC-663 is contingent upon all constituents meeting their respective MACs. If any constituent exceeds the MACs, the Licensed Professional will not be able to certify the soil as uncontaminated. In that event, additional analysis may be required in connection with disposal at a Subtitle D landfill, at additional cost for consulting, analytical testing and completion of the wasted profile. DETERMINATION OF FEE CBBEL proposes the following not to exceed fees for each of the tasks described above for each Area: Area 1 (Coolidge Street): $80,000 Construction Estimate DESIGN ENGINEERING SERVICES Task 1 —Pavement Cores $ 800 Task 2- Survey $ 2,500 Task 3— Field Reconnaissance $ 2,000 Task 4— Plans, Specifications, and Estimates $ 8,250 Task 5—Bidding Assistance $ 350 Task 6 —CCDD Evaluation and Report LPC-662 500 Sub Total $14,400 Area 2 (35th Street): $375,000 Construction Estimate DESIGN ENGINEERING SERVICES Task 1 —Pavement Cores $ 1,200 Task 2— Survey $ 9,500 Task 3 — Field Reconnaissance $ 4,750 Task 4— Plans, Specifications, and Estimates $13,050 Task 5 — Bidding Assistance $ 350 Task 6 —CCDD Evaluation and Report LPC-662 500 Sub Total $29,350 Area 3 (Golf Drive): $215,000 Construction Estimate DESIGN ENGINEERING SERVICES Task 1 — Pavement Cores $ 800 Task 2—Survey $ 8,000 Task 3— Field Reconnaissance $ 2,250 Task 4— Preparation of Plans $ 9,750 Task 5— Bidding Assistance $ 350 Task 6 — CCDD Evaluation and Report LPC-662 500 Sub Total $21,650 OCGCmc Page 5 of 7 NAPR0P0SALS\ADMIN\2013\0ak Brook-2014 Street Improvement-Const Insp.101413.doc Area 4 (Village Hall Parking Lot): $115,000 Construction Estimate DESIGN ENGINEERING SERVICES Task 1 — Pavement Cores $ 1,600 Task 2— Survey $ 3,000 Task 3 — Field Reconnaissance $ 750 Task 4— Preparation of Plans $ 3,250 Task 5— Bidding Assistance $ 350 Task 6 —CCDD Evaluation and Report LPC-662 500 Sub Total $ 9,450 Area 5 (Fire Station #2): $70,000 Construction Estimate DESIGN ENGINEERING SERVICES Task 1 — Pavement Cores $ 800 Task 2 — Survey $ 0 Task 3— Field Reconnaissance $ 750 Task 4— Preparation of Plans $ 3,250 Task 5 — Bidding Assistance $ 0 Task 6 CCDD Evaluation and Report LPC-662 Sub Total $ 4,800 Area 6 (Well House Parking Lot): $20,000 Construction Estimate DESIGN ENGINEERING SERVICES Task 1 — Pavement Cores $ 800 Task 2—Survey $ 0 Task 3 — Field Reconnaissance $ 500 Task 4 — Preparation of Plans $ 1,250 Task 5 — Bidding Assistance $ 0 Task 6 — CCDD Evaluation and Report LPC-662 Sub Total $ 2,550 DESIGN ENGINEERING SERVICES TOTALS Task 1 — Pavement Cores $ 6,000 Task 2—Survey $23,000 Task 3 — Field Reconnaissance $10,500 Task 4 — Preparation of Contract Documents $39,300 Task 5 — Bidding Assistance $ 1,400 Task 6 — CCDD Evaluation and Report LPC-662 2,000 Total $82,200 DIRECT COSTS Outside Copies, Blueprints, Messenger, Delivery Services Total $ 2,000 GRAND TOTAL $84,200 OCGlmc Page 6 of 7 NAPROPOSAMADMIN12013\0ak Brook-2014 Street Improvement-Const Insp.101413.doc 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 not the direct costs for blueprints, photocopying, mailing, overnight delivery, messenger services and report compilation 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: OCGrjmc Page 7 of 7 N;\PROPOSAMADMIM2013\Oak Brook-2014 Street Improvement-Const Insp.101413.doc CHRISTOPHER B. BURKE ENGINEERING, LTD. STANDARD CHARGES FOR PROFESSIONAL SERVICES VILLAGE OF OAK BROOK JANUARY 2011 Charges* Personnel /Hr Principal 240 Engineer VI 210 Engineer V 173 Engineer IV 138 Engineer III 125 Engineer 1/II 102 Survey V 178 Survey IV 132 Survey III 127 Survey II 100 Survey 1 78 Resource Planner V 112 Resource Planner IV 108 Resource Planner III 100 Resource Planner 1/II 88 Engineering Technician V 150 Engineering Technician IV 132 Engineering Technician III 107 Engineering Technician 1/II 97 CAD Manager 138 Assistant CAD Manager 126 CAD II 125 CAD 1 98 GIS Specialist III 120 GIS Specialist 1/II 67 Landscape Architect 138 Environmental Resource Specialist V 154 Environmental Resource Specialist IV 134 Environmental Resource Specialist III 114 Environmental Resource Specialist 1/II 94 Environmental Resource Technician 90 Administrative 88 Engineering Intern 53 Survey Intern 53 Information Technician III 97 Information Technician 1/II 62 Direct Costs Outside Copies, Blueprints, Messenger, Delivery Services, Mileage Cost+ 12% *Charges include overhead and profit Christopher B. Burke Engineering, Ltd. reserves the right to increase these rates and costs by 5% after December 31, 2011 Please note: In recognition of the economic challenges facing our clients, we have not increased our schedule of charges since January 2009. 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 1 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 Engineers 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. 8. 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 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 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. 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 Contractor to 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 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 Indemnitees'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 Conditions\GT&C 2005.061305.doc 10 ENGINEERING SERVICES AGREEMENT VILLAGE OF OAK BROOK 2014 Street Improvement Project THIS AGREEMENT, made and entered into this _ day of October 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 2014 Street Improvement Proiect, (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 terms 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: 1. 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 411850987_vl 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 11- 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 furnished 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 furnished 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 (3 0) 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 #11850987_vl 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 #11850987_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 parry 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 parry 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 per'• 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 #11850987_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 finishing 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 1 conflict with any provisions of the attached Rider No. 1,the provisions of Rider No. 1 shall control. IN WITNESS WHEREOF, the ies set their hands and seals on the date first written above. Sty a F U VILLAGE F OAK BROOK ��� A Munic' al Corp u ,, Village President `�c ,�� lage Clerk Fc UN gam- ® T`1 Christopher B. Burke Engineering, Lt . ATTEST: W� l� Duly Authorized Officer Page 9 #11850987_vl APPENDIX 1 SCOPE OF SERVICES Per proposal submitted by Christopher B. Burke Engineering, Ltd., Ltd. dated October 9, 2013. Page 10 411850987_vl APPENDIX II COMPENSATION SCHEDULE Per proposal submitted by Christopher B. Burke Engineering, Ltd., Ltd. dated October 9, 2013. Page 11 411850987_vl APPENDIX III TIME SCHEDULE Per proposal submitted by Christopher B. Burke Engineering, Ltd., Ltd. dated October 9, 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: 1. 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. 3. 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. 8. 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 #11850987_vl RIDER NO. 1 TO AGREEMENT DATED , 2013 BETWEEN THE VILLAGE OF OAK BROOK, ILLINOIS AND CHRISTOPHER B. BURKE ENGINEERING, LTD. FOR THE 2014 Street Improvement Project 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 2014 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 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 5510.01 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/LitiaationNenue. 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 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 2014 street improvement project engineering rider 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. VILLAG OF OAK BROOK CHRISTOPHER B. BURKE ENGINEERING, LTD. By: By: Gopal Lalmalani Village President Attest: Attest: By: By: �yt Charlotte Pruss Village Clerk Its: G Page 2 2014 street improvement project engineering rider no 1.docx