Loading...
Municipal Engineering Services Burns and McDonnellMUNICIPAL ENGINEERING SERVICES AGREEMENT VILLAGE OF OAK BROOK THIS AGREEMENT, made and entered into this L641d y of April, 2017, by and between Burns & McDonnell Engineering Company Inc. (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 Municipal Engineering Services, (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: I. 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 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 Page 1 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 It is recognized by the parties that the Time Schedule may be contingent upon factors beyond the control of either party and the parties are not responsible for delays caused by events or actions beyond their control. 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 has properly executed his duties. ENGINEER shall not be responsible for the failure of VILLAGE, any architect, engineer, consultant, contractor or Page 2 #1 1850987 v i 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. C. 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. f. 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 ply. 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 #11850987 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 performed in accordance with the 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 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 seg. 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, for which the VILLAGE may Page 4 0 11950987 v 1 Suffer as damages, and this Agreement shall, at the VILLAGE's option, be terminated. 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 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, ENGINEER has any interest that would conflict 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. 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 (I V 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 constriction 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 #I 1 s5o9s7yl 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 fumished 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. I. 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. in. 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 General and Development Engineering Services Agreement from the ENGINEER dated March 15, 2017. n. Governing Law This Agreement shall be governed by the laws of the State of Illinois both as to interpretation and performance. Page 6 N 11850987 v i 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 party to enforce at any time, or for any period of time, any of the provisions hereof, shall be limited to the particular instance, shall not operate or be deemed to waive any future breaches of this Agreement, and shall not be construed to be a waiver of any provision, except for the particular instance. 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 #11850987 vi Burns & McDonnell Engineering Company Inc. 1431 Opus Place Suite 400 Downers Grove, Illinois 60515 Attn: Claus Dunkelberg, P.E. 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: Robert Kallien Director of Development Services 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. Page 8 4 11850987 v I X. Time Time is of the essence in the performance of all terms and provisions of this Agreement. Y. Third Party Beneficiary No claim as a third party beneficiary under this Agreement by any person, firm, or corporation shall be made or be valid against the Village or Engineer. Z. Conflicts If any provisions of this Agreement conflict with any provisions of the attached appendices, the provisions of this Agreement shall control. IN WITNESS, WHEREOF, the parties set their hands and seals on the date first written above. VILL E OF OAK BROOK or ora Village President Bums & McDonnell Engineering Company Inc M — Duly Authorized-Offieea �YPr4 # 1 1850987_vI ATTEST: Aimm Village Clerk ATTEST: Page 9 APPENDIX 1 SCOPE OF SERVICES Per letter submitted by Bums & McDonnell Engineering Company Inc. dated March 15, 2017 Page 10 N 11850987 v I APPENDIX II COMPENSATION SCHEDULE Per letter submitted by Bums & McDonnell Engineering Company Inc. dated March 15, 2017 Page 11 # 11850987 v I APPENDIX III TID4E SCHEDULE Per letter submitted by Bums & McDonnell Engineering Company Inc. dated March 15, 2017 Page 12 p 11850987 v 1 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 accident $500,000 disease -per employee $1,000,000 disease -policy limit Such insurance shall evidence that coverage applies in the State of Illinois. 3. Commercial General Liability Insurance: $2,000,000 per occurrence and annual aggregate combined single limit. Coverages shall include Broad Form Property Damage Endorsements and Blanket Contractual Liability. 4. Business Automobile Liability Insurance: $1,000,000 combined single limit per accident, 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 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 8 11850987 vi BURNS,*MSDONNELL March 15, 2017 Mr. Riccardo F. Ginex Village Manager Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60523-2255 Re: General and Development Engineering Services Agreement Dear Mr. Ginex: Bums & McDonnell is pleased to submit this proposal for providing general and development engineering services to the Village of Oak Brook. Based on our meeting held on March 9, 2017, it is our understanding that the Village has selected Bums & McDonnell to provide engineering services required to assist the Village in completing day to day engineering and development functions. In that capacity, we, as independent contractors, can sign documents we have reviewed as "Village Engineer." We understand that for other engineering tasks, the Village has chosen another firm to also serve as Village Engineer. Scope of Services We understand the services to be provided as follows: Task 1: New Development and Permit Review 1. Review development permit applications, work with Village personnel in permit approval, construction inspection as required for development under construction and BMP compliance. 2. Meet with the developers and their representatives as required to present Village requirements, address submittal deficiencies, provide meeting minutes and coordinate attendance of other Village representatives. 3. Review subdivision plats and facilitate approval of the subdivision plats. 4. Assess backlog and priority of existing submittals for Village review and facilitate review and approval of the submittals. Task 2: Stormwater Services 1. Conduct a stormwater review of any new construction occurring in the Village for compliance with Village code and BMP's. 2. Meet with Village residents on drainage issues and complaints. Follow-up on agreed upon action items for resolution of identified issues. Prepare documentation for Village files including basis of complaint, timeline and resolution. 3. Field floodplain map questions and inquiries. Document responses and resolution of the questions and inquiries. Task 3: General Engineering Services 1. Field photometric and sound issues. Document responses and resolution of the relevant issues. 2. Meet with potential developers as requested to review project concepts and present permit submittal requirements. 1431 Opus Place \ Suite 400 \ Downers Grove, IL 60515 0630-724-3200 \ F 630-724-3201 \ bumsmcd.com BURNS `MSDONNELL Village Manager Village of Oak Brook March 15, 2017 Page 2 3. Review the permit submittal, review and approval process to identify improvements that increase efficiency, timely reviews and streamline project documentation, provide recommendations for improvements and if agreed upon by the Village, implement approved recommendations. 4. Facilitate development of Village infrastructure standards that are applicable to Village improvements and developments. The infrastructure standards address potable water systems, wastewater conveyance systems, transportation systems, stormwater systems and other Village infrastructure as identified. Work in conjunction with other Village Departments, Village consultants and appropriate industry representatives to compile these standards and make available as required in paper or electronic format. 5. Attend Village board meetings, Village committee meetings or other Village meetings as requested. 6. Coordinate with other Village consultants for successful completion of projects or Village tasks. 7. Provide services required to complete tasks as requested by the Village Manager. 8. Provide general engineering services as requested. Bums & McDonnell will commit to having a person at Village offices as required to complete the tasks or as requested by Village staff. Actual time spent at Village offices will be dependent on services requested and needs of the Village. Task 4: Additional Engineering Services 1. From time to time the Village may request engineering services relative to a specific project or of an added nature. Upon notification of the request, we will meet with the Village to negotiate the project scope, fee, schedule and deliverable. We will proceed with the project upon receipt of Village written authorization. Compensation: Bums & McDonnell proposes to provide the scope of services identified in this proposal on a time and material basis. Monthly invoices will be submitted by Burns & McDonnell to the Village based on the current rate schedule attached and the time required to complete the assigned tasks. Bums & McDonnell will notify in advance any changes in the fee schedule. This Agreement may be canceled upon 30 days' prior written notice from the Village but Bums & McDonnell shall be paid promptly for all prior work performed, which is not the subject of dispute, and all work assigned by the Village during the 30 -day notice period. General Considerations: If this proposal is satisfactory, please sign and date this document and return one signed copy to us to affect an Agreement. The attached Terms and Conditions for Professional Services are incorporated in and made a part of the Agreement. The Agreement can be amended only by written authorization signed by both the Village and an authorized representative of Burns & McDonnell. Provided, however, that Bums & McDonnell will also sign a standard contract which the Village has prepared for vendors and consultants such as a firm providing engineering services and any provision in that contract shall replace or supersede any term in the Agreement or the attached Terms and Conditions. The Village may require that certain Burns & McDonnell personnel not be assigned to specific projects. BURNS `MSDONNELL Village Manager Village of Oak Brook March 15, 2017 Page 3 We appreciate the opportunity to serve the Village of Oak Brook. Should you have any questions or require additional information, please feel free to contact me at cdunkelberg@burnsmcd.com or (630) 515-4633 or Jamie Patterson atipatterson@bumsmcd.com. Sincerely, 400M Randall L. Patchett, P.E. Regional Water Practice Manager Village of Oak Brook, IL. (Signature) (Title) (Date) 4822A707-5910, v. I Claus Dunkelberg, P.E. Project Manager Schedule of Hourly Professional Service Billing Rates Position Classification Hourly Classification Level Billing Rate General Office ' 5 $54.00 Technician ' 6 67.00 Assistant ' 7 78.00 8 102.00 9 121.00 Staff 10 136.00 11 146.00 Senior 12 162.00 13 181.00 Associate 14 192.00 15 198.00 16 204.00 17 210.00 NOTES: 1. Position classifications fisted above refer to the firm's internal classification system for employee compensation. For example, "Associate", "Senior", etc., refer to such positions as "Associate Engineer", "Senior Architect", etc. 2 For any nonexempt personnel in positions marked with an asterisk ('), overtime will be billed at 1.5 times the hourly labor billing rates shown. 3. Project time spent by corporate officers will be billed at the Level 17 rate plus 25 percent. 4. For outside expenses incurred by Burns & McDonnell, such as authorized travel and subsistence, and for services rendered by others such as subcontractors, the client shall pay the cost to Burns & McDonnell plus 10%. 5. Monthly Invoices will be submitted for payment covering services and expenses during the preceding month. Invoices are due within 45 days of receipt. A late payment charge of 1.5% per month will be added to all amounts not paid within 45 days of the invoice date. No late payment charge shall be due of any billed work which the V Ilage contests in whole or in part in writing with in 45 days after the receipt. The parties will meet in a good faith effort to resolve any such disputed amounts. 6. The services of any personnel of a Burns & McDonnell subsidiary or affiliate shall be billed to Owner according to the rate sheet as if such personnel is a direct employee of Burns & McDonnell. 7. The rates shown above are effective for services through December 31, 2017, and are subject to revision thereafter. Form BMR517A 4850-9822-3174,v. 1 BURNS & McDONNELL ENGINEERING COMPANY INC. TERMS AND CONDITIONS FOR PROFESSIONAL CONSULTING SERVICES Date of Letter, Proposal or Agreement: 03M5/2017 Client: Village of Oak Brook, Illinois Project: General Engineering Services 1. SCOPE OF SERVICES For the above -referenced project, Burns & McDonnell Engineering Company, Inc. ("Engineer) will perform the services set forth in the above -referenced Letter, Proposal or Agreement, of which these Terms and Conditions are a part. 2. PAYMENTS TO ENGINEER A. Compensation will be as stated in the above -referenced Letter, Proposal or Agreement. Statements will be in Engineers standard format and are payable upon receipt Time is of the essence in payment of statements, and timely payment is a material part of the consideration of this Agreement. A late payment charge will be added to all amounts not paid within 30 days of statement date. Such late payment charge shall be calculated at 1.5 percent per month from statement date. Any costs incurred by Engineer in collecting any delinquent amount, including reasonable attomey's fees, shall be reimbursed by Client. If a portion of Engineers statement is disputed, the undisputed portion shall be paid by Client by the due date. Client shall advise Engineer in writing of the basis for any disputed portion of any statement. B. Taxes as may be imposed by state and local authorities, other than federal and state income tax and Kansas City, Missouri earnings tax, shall be in addition to the payment stated in the above -referenced Letter, Proposal or Agreement. 3. PROFESSIONAL RESPONSIBILITY A. Engineer will exercise reasonable skill, care and diligence in the performance of its services and will carry out its responsibilities in accordance with customarily accepted good professional engineering practices. B the Engineer fails to meet the foregoing standard, Engineer will perform at its own cost, and without reimbursement from Client, the professional engineering services necessary to correct errors and omissions caused by Engineers failure to comply with above standard and reported to Engineer within one year from the completion of Engineers services for the Project. No warranty, expressed or implied, is included in this agreement or in any drawing, specification or opinion produced pursuant to this agreement. B. In no event will Engineer be liable for any special, indirect or consequential damages including, without limitation, damages or losses in the nature of increased Project costs, loss of revenue or profit, lost production, claims by customers of Client or governmental fines or penalties. 4851-5195-9110,v. 1 04/11117 C. The Engineer's aggregate liability for all damages connected with its services for the Project not excluded by the preceding subparagraph will not exceed $50,000 or the compensation paid for services, which over is greater. D. The obligations and remedies stated in this Paragraph 3, Professional Responsibility, are the sole and exclusive obligations of Engineer and remedies of Client, whether liability of the Engineer is based on contract, warranty, strict liability, tort (including negligence), indemnity or otherwise. 4. ESTIMATES AND PROJECTIONS Engineers estimates and projections of construction costs and schedules, operation and maintenance costs, equipment characteristics and pedornance, and operating results are based on Engineers experience, qualifications and judgment. Since Engineer has no control over weather, cost and availability of labor, material and equipment, labor productivity, construction contractors procedures and methods, and other factors, Engineer does not guarantee the accuracy of its estimates and projections S. ONSITE SERVICES Project site visits by Engineer during construction or equipment installation or the furnishing of Project representatives shall not make Engineer responsible for construction means, methods, techniques, sequences or procedures; for construction safety precautions or programs; or for any construction contractor(e) failure to perform its work in accordance with the contract documents. 6. CHANGES Client shall have the right to make changes within the general scope of Engineers services, with an appropriate change in compensation, upon execution of a mutually acceptable amendment or change order signed by an authorized representative of the Client and the President or any Vice President of the Engineer. 7. TERMINATION Services may be terminated by the Client or Engineer by seven (7) days' written notice in the event of substantial failure to perform in accordance with the terns hereof by the other party through no fault of the terminating party. If so terminated, Client shall pay Engineer all amounts due Engineer for all services properly rendered and expenses incurred to the date of receipt of notice of termination, plus reasonable costs incurred by Engineer in terminating the services. In addition, Client may terminate the services for Client's convenience upon payment of twenty percent of the yet unearned and unpaid lump sum or not -to -exceed fee. 8. DISPUTES If a dispute arises relating to the performance of the services to be provided and should that dispute result in litigation, it is agreed that the prevailing party shall be entitled to recover all reasonable costs of litigation, including staff time, court costs, attorney's fees and other related expenses. 9. RIGHTS AND BENEFITS Engineers services will be performed so" for the benefit of the Client and not for the benefit of any other persons or entities. 10. ENTIRE CONTRACT These Terms and Conditions and the above -referenced Letter, Proposal or Agreement contain the entire agreement between the Engineer and Client relative to the Engineers services for the project herein. All previous or contemporaneous agreements, representations, promises and conditions relating to the Engineers services for the Project are superseded. Since terms contained in purchase orders do not generally apply to professional services, in the event the Client issues to Engineer a purchase order, no preprinted terns thereon shall become part of this agreement. Said purchase order document, whether or not signed by Engineer, shall be considered as a document for the Client's internal management of its operations.