R-1370 - 05/27/2014 - ENGINEERING - Resolutions RESOLUTION 2014-ENG-ST-IMPROVE-AG-R-1370
A RESOLUTION APPROVING AND AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT
BY AND BETWEEN THE VILLAGE OF OAK BROOK AND CHRISTOPHER B.
BURKE ENGINEERING, LTD FOR ENGINEERING CONSTRUCTION SERVICES RELATED TO THE
2014 STREET IMPROVEMENT PROJECT
WHEREAS, the Village is planning to make repairs and improvements to Coolidge Street, 35th
Street east of Route 83, Golf Drive, the Village Hall parking lot, the driveway of Fire State #2, and the
water reservoir access area (collectively, "2014 Street Improvement Project"); and
WHEREAS, the Village desires to retain an engineer to provide engineering construction services
for the 2014 Street Improvement Project("Services"); and
WHEREAS, Christopher B. Burke Engineering, LTD ("Burke") previously provided satisfactory
engineering services to the Village for past paving and street improvement 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 $81,500.00 ("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 after receipt of the final Agreement fully executed by Burke.
Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and
approval in the manner provided by law.
[SIGNATURE PAGE FOLLOWS]
Resolution 2014-ENG-ST-IMPROVE-AG-R-1370
Engineering Construction Services for 2014 Street Improvement Project
2 of 3
APPROVED THIS 27th day of May, 2014
Gopal G. Lalmalani
Village President
PASSED THIS 27th day of May, 2014
Ayes: Trustees Adler, Baar, Manzo, Moy, Wolin, Yusuf
Nays: None
Absent: None
ATTEST:
rr
Charlotte K. Pruss
A
Village Clerk
ae, tj r'
Resolution 2014-ENG-ST-IMPROVE-AG-R-1370
Engineering Construction Services for 2014 Street Improvement Project
3 of 3
EXHIBIT A
AGREEMENT
ENGINEERING SERVICES AGREEMENT
VILLAGE OF OAK BROOK
2014 Street Improvement Project
THIS AGREEMENT, made and entered into this _ day of May 2014, 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
Project, (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
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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
has properly executed his duties. ENGINEER shall not be responsible for the
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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.
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
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
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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
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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 (30) days after completion of construction and before final payment to the
ENGINEER. ENGINEER will title these files "Record Drawings".
If construction services are not part of the ENGINEER'S work, he will deliver
electronic MICROSTATION files to the VILLAGE upon request and before final
payment to the ENGINEER.
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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.
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o. Successors and Assigns
The terms of this Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns: provided, however, that
neither party shall assign this Agreement in whole or in part without the proper
written approval of the other.
p. Waiver of Contract Breach
The waiver of one party of any breach of this Agreement or the failure of one
parry to enforce at any time, or for any period of time, any of the provisions
hereof, shall be limited to the particular instance, shall not operate or be deemed
to waive any future breaches of this Agreement, and shall not be construed to be a
waiver of any provision, except for the particular instance.
q. Severability of Invalid Provisions
If any provisions of this Agreement shall be held to contravene or be invalid
under the laws of any particular State, County or jurisdiction where used, such
contravention shall not invalidate the entire Agreement, but it shall be construed
as if not containing the particular provision or provisions held to be invalid in the
particular State, County or jurisdiction and the rights or obligations of the parties
hereto shall be construed and enforced accordingly.
r. Force Majeure
Neither VILLAGE nor ENGINEER shall be liable for any fault or delay caused
by any contingency beyond their control, including, but not limited to, acts of
God, wars, strikes, walkouts, fires, or natural calamities.
S. Access and Permits
VILLAGE shall arrange for ENGINEER to enter upon public and private
property and shall obtain all necessary approvals and permits required from all
governmental authorities having jurisdiction over the PROJECT.
t. Designation of Authorized Representatives
Each 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
Ply•
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:
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Christopher B. Burke Engineering, Ltd.
9575 West Higgins Road
Suite 600
Rosemont, Illinois 60018
Attn: Orion Galey, PE
Whenever it is provided in this Agreement that notice shall be given or other
communication sent to the VILLAGE, such notices or communications shall be
delivered or sent to:
VILLAGE OF OAK BROOK
1200 Oak Brook Road
Oak Brook, Illinois 60523
Attn: Michael Hullihan
Public Works Director
Notices personally delivered or sent via U.S. Mail, postage prepaid, shall be
deemed, for all purposes proper notice.
V. Insurance
ENGINEER agrees to obtain and maintain, for the term of this Agreement, and
for a period of twelve (12) months after the services contracted for hereunder
have been completed, insurance hereinafter provided, furnishing a certificate or
certificates of insurance to the VILLAGE prior to commencing work under this
Agreement. The certificate or certificates of insurance shall be in a form
satisfactory to the VILLAGE from companies authorized to do business in Illinois
and shall provide that the policies referred to shall not be canceled or changed
without first giving thirty (30) days written notice thereof to the VILLAGE. Said
insurance requirements are attached as Appendix IV and made a part of this
Agreement ("REQUIRED INSURANCE POLICIES").
The VILLAGE shall be named as an additional insured and a cancellation notice
recipient on all Required Insurance Policies.
W. Additional Services
ENGINEER shall supply such additional services as requested in writing by
VILLAGE and agreed to by ENGINEER in connection with the PROJECT.
Separate proposals shall be submitted by ENGINEER for furnishing these
additional services. Compensation for such additional services shall be negotiated
by the parties and included in this Agreement by a written amendment.
ENGINEER shall supply such additional services as requested in writing by
VILLAGE and agreed to by ENGINEER in connection with the PROJECT.
Separate proposals shall be submitted by ENGINEER for furnishing these
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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 _-mail-les set their hands and seals on the date first written
above. 4
VILLAGE O OAK BROO TEST:
Pl✓.n
A Municip Corporation
Village President '��+ � lage Clerk
®E1�97`C
Christopher B. Burke Engineering, Lt ATTEST:
Duly AuthorizeY Officer
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APPENDIX 1
SCOPE OF SERVICES
Per proposal submitted by Christopher B. Burke Engineering, Ltd., Ltd. dated May 15,
2014.
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APPENDIX II
COMPENSATION SCHEDULE
Per proposal submitted by Christopher B. Burke Engineering, Ltd., Ltd. dated May 5,
2014.
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APPENDIX III
TIME SCHEDULE
Per proposal submitted by Christopher B. Burke Engineering, Ltd., Ltd. dated May 15,
2014.
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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.
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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 Engineer's materials shall not include the Client's
confidential and proprietary information if the Client has previously advised the Engineer
in writing of the specific information considered by the Client to be confidential and
proprietary.
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.
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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.
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Any claim, dispute or other matter in question arising out of or related to this Agreement,
which can not be mutually resolved by the parties of this Agreement, shall be subject to
mediation as a condition precedent to arbitration (if arbitration is agreed upon by the
parties of this Agreement) or the institution of legal or equitable proceedings by either
party. If such matter relates to or is the subject of a lien arising out of the Engineer's
services, the Engineer may proceed in accordance with applicable law to comply with
the lien notice or filing deadlines prior to resolution of the matter by mediation or by
arbitration.
The Client and Engineer shall endeavor to resolve claims, disputes and other matters in
question between them by mediation which, unless the parties mutually agree otherwise,
shall be in accordance with the Construction Industry Mediation Rules of the American
Arbitration Association currently in effect. Requests for mediation shall be filed in writing
with the other party to this Agreement and with the American Arbitration Association.
The request may be made concurrently with the filing of a demand for arbitration but, in
such event, mediation shall proceed in advance of arbitration or legal or equitable
proceedings, which shall be stayed pending mediation for a period of 60 days from the
date of filing, unless stayed for a longer period by agreement of the parties or court
order.
The parties shall share the mediator's fee and any filing fees equally. The mediation
shall be held in the place where the Project is located, unless another location is
mutually agreed upon. Agreements reached in mediation shall be enforceable as
settlement agreements in any court having jurisdiction thereof.
13. Successors and Assigns: The terms of this Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns: provided,
however, that neither party shall assign this Agreement in whole or in part without the
prior written approval of the other.
14. Waiver of Contract Breach: The waiver of one party of any breach of this Agreement or
the failure of one party to enforce at any time, or for any period of time, any of the
provisions hereof, shall be limited to the particular instance, shall not operate or be
deemed to waive any future breaches of this Agreement and shall not be construed to
be a waiver of any provision, except for the particular instance.
15. Entire Understanding of Agreement: This Agreement represents and incorporates the
entire understanding of the parties hereto, and each party acknowledges that there are
no warranties, representations, covenants or understandings of any kind, matter or
description whatsoever, made by either party to the other except as expressly set forth
herein. Client and the Engineer hereby agree that any purchase orders, invoices,
confirmations,acknowledgments or other similar documents executed or delivered with
respect to the subject matter hereof that conflict with the terms of the Agreement shall
be null, void &without effect to the extent they conflict with the terms of this Agreement.
16. Amendment: This Agreement shall not be subject to amendment unless another
instrument is duly executed by duly authorized representatives of each of the parties and
entitled "Amendment of Agreement".
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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 Majeure: 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.
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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 indemnifiedhereunder. 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:
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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 shalt 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
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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
R\Proposals\Terms and Conditions\GT&C 2005.061305.doc
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