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R-1393 - 09/09/2014 - PEDESTRIAN ACCESS - Resolutions Supporting Documents ITEM 6.F.7) of e4air ita,....9114401. 00 ,041P4P,". oroAl 110 leg Oa ' 0-zoie *Wog —1,41 CO UN-C " AGENDA ITEM Regular Board of Trustees Meeting of September 9, 2014 SUBJECT: Professional Services Agreement with Engineering Resource Associates (ERA) for Construction Engineering for the Pedestrian Access Project FROM: Mike Hullihan,P.E.,Village Engineer BUDGET SOURCE/BUDGET IMPACT: $45,486 from Hotel and Motel Fund RECOMMENDED MOTION: I move that the Village Board approve the attached professional services agreement with Engineering Resource Associates for Construction Engineering for the Pedestrian Access Project for an amount not to exceed $45,486 Background/History: The Board approved a contract with Copenhaver Construction at the meeting of July 22, 2014 for the construction of pedestrian access improvements in the area of Spring Road and Harger Road and le Street in the amount of $369,413. The professional services agreement currently under consideration will provide for the administration and oversight of the construction contract. ERA is the firm which designed the project and has perforrried several other engineering assignments for the Village in the areas of streetscape enhancement and pedestrian access. Recommendation: I recommend that the Village Board approve the attached professional services agreement with Engineering Resource Associates for Construction Engineering for the Pedestrian Access Project for an amount not to exceed$45.486. RESOLUTION 2014-PED-ACCESS-ENG-CNSTRCT-R-1393 A RESOLUTION APPROVING AND AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND ENGINEERING RESOURCE ASSOCIATES, INC., FOR CONSTRUCTION ADMINISTRATION SERVICES FOR PROJECTS B AND C OF THE PEDESTRIAN ACCESS PROJECT WHEREAS, the Village desires to improve pedestrian and bicycle access to the Oakbrook Center and the hotels, offices, businesses, universities, and residential developments located adjacent to or near the Oakbrook Center through implementation of 10 related infrastructure projects collectively known as the Pedestrian Access Project; and WHEREAS, as part of the Pedestrian Access Project, the Village will construct crosswalks, install pedestrian signals and lighted bollards, and extend sidewalks on 16th Street west of Spring Road (Project B)and at the intersection of Spring Road and Harger Road (Project C) (collectively, the"Work'); and WHEREAS, the Village desires to retain an engineer to provide construction observation and administration services related to the Work ("Services"); and WHEREAS, Engineering Resource Associates, Inc. ("ERA"), designed the Work and has previously provided satisfactory engineering services to the Village in connection with streetscape 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 ERA desire to enter into and execute an agreement for ERA to provide the Services to the Village for an amount not to exceed $45,486, which agreement is attached hereto as Exhibit A ("Agreement'); and WHEREAS, the President and Board of Trustees have determined that it is in the best interest of the Village to enter into the Agreement; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Agreement by and between the Village and ERA for the Services in substantially the same form attached hereto 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 Agreement after receipt of the final Agreement fully executed by ERA. 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-PED-ACCESS-ENG-CNSTRCT-R-1393 Observation Services for Pedestrian Access Project 2 of 3 APPROVED THIS 9th day of September, 2014 Gopal G. Lalmalani Village President PASSED THIS 9th day of September, 2014 Ayes: Nays: Absent: ATTEST: Charlotte K. Pruss Village Clerk #32529662_vl. Resolution 2014-PED-ACCESS-ENG-CNSTRCT-R-1393 Observation Services for Pedestrian Access Project 3 of 3 EXHIBIT A AGREEMENT CONTRACT BETWEEN THE VILLAGE OF OAK BROOK AND ENGINEERING RESOURCE ASSOCIATES, INC. FOR CONSTRUCTION ENGINEERING SERVICES In consideration of the agreements set forth below, the Village of Oak Brook, Illinois, 1200 Oak Brook Road, Oak Brook, Illinois 60523, a unit of local government created and existing under the laws of the State of Illinois (the "Owner" or "Village"), and Engineering Resource Associates, Inc., 3s701 West Avenue, Suite 150, Warrenville, Illinois 60555, an engineering firm (the "Consultant"), make this Contract as of , 2014, and hereby agree as follows: ARTICLE I THE SERVICES 1.1 Performance of the Services Consultant shall, at its sole cost and expense, provide, perform, and complete all of the following services, all of which is herein referred to as the "Services": A. Labor, Equipment, Materials, and Supplies. Provide, perform, and complete, in the manner described and specified in this Contract, all professional services necessary to accomplish the "Project," as defined in the following: 1. The Consultant's Scope of Work attached to this Contract as Attachment A, and 2. With the insurance coverage listed in Attachment B attached to this Contract. B. Approvals. Procure and furnish all approvals and authorizations specified in Attachment A. C. Insurance. Procure and furnish all required certificates and policies of insurance specified in Attachment B. D. Standard of Performance. Provide, perform, and complete all of the foregoing in a professional manner, consistent with the professional standards of care of qualified engineers doing similar service in the Chicago Metropolitan Area and in full compliance with this Contract (the "Standard of Performance"). 1.2 Completion Date Consultant shall diligently and continuously perform the Services at such a rate as will allow the Services to be fully performed and completed in compliance with this Contract not later than the "Completion Date" set forth in Attachment A. The rate of progress and time of completion are referred to in this Contract as the "Contract Time." 1 1.3 Required Submittals A. Submittals Required. Consultant shall submit to Owner all reports, documents, data, and information required to be submitted by Consultant under this Contract (the "Required Submittals"). B. Time of Submission and Owner's Review. All Required Submittals shall be provided to Owner no later than the time, if any, specified in Attachment A, or otherwise in this Contract. If no time for submission is specified for any Required Submittal, then that Submittal shall be submitted within a reasonable time in light of its purpose and, in all events, in sufficient time, in Owner's opinion, to permit Owner to review that Submittal same prior to the commencement of any part of the Services to which that Submittal may relate. Owner shall have the right to require such corrections as may be necessary to make any Required Submittal conform to this Contract. No Services related to any Required Submittal shall be performed by Consultant until Owner has completed review of such Required Submittal with no exception noted. Owner's review and approval of any Required Submittal shall not relieve Consultant of the entire responsibility for the performance of the Services in full compliance with, and as required by or pursuant to this Contract, and shall not be regarded as any assumption of risk or liability by Owner. The Consultant shall not be held liable for claims of delay caused by the Owner's failure to timely review and approve any Required Submittal. 1.4 Review and Incorporation of Contract Provisions Consultant represents and declares that it has carefully reviewed, and fully understands, this Contract, including all of its Attachments, all of which are by this reference incorporated into and made a part of this Contract. 1.5 Financial and Technical Ability to Perform Consultant represents and declares that it is financially solvent, and has the financial resources necessary, and has sufficient experience and competent, and has the necessary capital, facilities, organization, and staff necessary to provide, perform, and complete the Services in full compliance with, and as required by or pursuant to,this Contract. 1.6 Time Consultant represents and declares that the Contract Time is sufficient time to permit completion of the Services in full compliance with, and as required by or pursuant to, this Contract for the Contract Price. 1.7 Consultant's Personnel and Sub-Consultants A. Consultant's Personnel. Consultant shall provide all personnel necessary to complete the Services. B. Approval and Use of Sub-Consultants. Consultant shall perform the Services with its own personnel and under the management, supervision, and control of its own 2 organization unless otherwise approved by Owner in writing. All sub-consultants and subcontracts used by Consultant shall be acceptable to, and approved in advance by, Owner. Owner's approval of any sub-consultant or subcontract shall not relieve Consultant of full responsibility and liability for the provision, performance, and completion of the Services in full compliance with, and as required by or pursuant to, this Contract. All Services performed under any subcontract shall be subject to all of the provisions of this Contract in the same manner as if performed by employees of Consultant. Every reference in this Contract to "Consultant" shall be deemed also to refer to all sub-consultants of Consultant. Every subcontract shall include a provision binding the sub-consultant to all provisions of this Contract. C. Removal of Personnel and Sub-Consultants. If any personnel or sub-consultant fails to perform the part of the Services undertaken by it in compliance with this Contract or in a manner reasonably satisfactory to Owner, Consultant, immediately upon notice from Owner, shall remove and replace such personnel or sub-consultant. Consultant shall have no claim for damages, for compensation in excess of the Contract Price, or for a delay or extension of the Contract Time as a result of any such removal or replacement. 1.8 Owner's Responsibilities Owner shall, at its sole cost and expense: (a) designate in writing a person with authority to act as Owner's representative and on Owner's behalf with respect to the Services except those matters that may require approval of Owner's Board of Trustees; (b) provide to Consultant all criteria and full information as to Owner's requirements for the Project or work to which the Services relate, including Owner's objectives and constraints, schedule, space, capacity and performance requirements, and budgetary limitations relevant to the Project; (c)provide to Consultant all existing studies, reports, and other available data relevant to the Project; (d) arrange for access to and make all provisions for Consultant to enter upon public and private property as reasonably required for Consultant to perform the Services; (e) provide surveys describing physical characteristics, legal limitations, and utility locations for the Project and the services of geotechnical engineers or other consultants when such services are reasonably requested by Consultant and are necessary for the performance of the Services; (f)provide structural, mechanical, chemical, air and water pollution tests, test for hazardous materials, and other laboratory and environmental tests, inspections, and reports required by law to be provided by Owner in connection with the Project; (g)review Required Submittals and other reports, documents, data, and information presented by Consultant as appropriate; (h) provide approvals from all governmental authorities having jurisdiction over the Project when such services are reasonably requested by Consultant; (i) except as provided in Article IV of this Contract, provide all accounting, insurance, and legal counseling services as may be necessary from time to time in the judgment of Owner to protect Owner's interests with respect to the Project; (j) attend Project related meetings; and (k) give prompt written notice to Consultant whenever Owner observes or otherwise becomes aware of any development that affects the scope or timing of the Services, provided, however, that failure to give such notice shall not relieve Consultant of any of its responsibilities under this Contract. 1.9 Owner's Right to Terminate or Suspend Services for Convenience A. Termination or Suspension for Convenience. Owner shall have the right, at any time and for its convenience, to terminate or suspend the Services in whole or in part at any time 3 by written notice to Consultant. Every such notice shall state the extent and effective date of such termination or suspension. On such effective date, Consultant shall, as and to the extent directed, stop Services under this Contract, cease all placement of further orders or subcontracts, terminate or suspend Services under existing orders and subcontracts, and cancel any outstanding orders or subcontracts that may be canceled. B. Payment for Completed Services. In the event of any termination pursuant to Subsection 1.9A above, Owner shall pay Consultant (1) such direct costs, including overhead, as Consultant shall have paid or incurred for all Services done in compliance with, and as required by or pursuant to, this Contract up to the effective date of termination; and (2) such other costs pertaining to the Services, exclusive of overhead and profit, as Consultant may have reasonably and necessarily incurred as the result of such termination. Any such payment shall be offset by any prior payment or payments and shall be subject to Owner's rights, if any, to withhold and deduct as provided in this Contract. ARTICLE II CHANGES AND DELAYS 2.1 Changes Owner shall have the right, by written order executed by Owner, to make changes to the timing or scope of the Services to be provided pursuant to this Contract (a "Services Change Order"). When a Services Change Order causes an increase or decrease in the amount of the Services, an equitable adjustment in the Contract Price or Contract Time may be made. No decrease in the amount of the Services caused by any Services Change Order shall entitle Consultant to make any claim for damages, anticipated profits, or other compensation. Consultant shall not undertake any change in the Services without receipt of an executed Services Change Order from Owner. 2.2 Delays For any delay that may result from causes that could not be avoided or controlled by Consultant, Consultant, upon timely written application, shall be entitled to an extension of the Contract Time for a period of time equal to the delay resulting from such unavoidable cause. No extension of the Contract Time shall be allowed for any other delay in completion of the Services. In the event of a delay in the project outside of the control of Consultant that affects Consultant's ability to perform the Services, the Contract Price shall be adjusted for any actual increase in costs necessarily incurred by Consultant in the performance of the Services. 2.3 No Constructive Service Change Orders No claim for an equitable adjustment in the Contract Price or Contract Time shall be made or allowed unless it is embodied in a Services Change Order agreed to by Owner and Consultant. If Consultant believes it is entitled to an equitable adjustment in the Contract Price or Contract Time that has not been included, or fully included, in a Services Change Order, then Consultant shall submit to Owner a written request for the issuance of, or revision of, a Services Change Order, including the equitable adjustment, or the additional equitable adjustment, in the Contract Price or Contract Time that Consultant claims has not been included, or fully included, 4 in a Services Change Order. Such request shall be submitted before Consultant proceeds with any Services for which Consultant claims an equitable adjustment is due. ARTICLE III CONSULTANT'S RESPONSIBILITY FOR DEFECTIVE SERVICES 3.1 Representation of Compliance A. Scope of Representation. The Services and all of its components shall conform to the requirements of this Contract and shall be performed in accordance with Standard of Performance as defined in Subsection 1.1D of this Contract (the "Representation of Compliance"). B. Opinions of Cost. It is recognized that neither Consultant nor Owner has control over the costs of labor, material, equipment or services furnished by others or over competitive bidding, market or negotiating conditions, or construction contractors' methods of determining their prices. Accordingly, any opinions of probable Project costs or construction costs provided for herein are estimates only, made on the basis of Consultant's experience and qualifications and represent Consultant's best judgment as an experienced and qualified professional, familiar with the industry. Consultant does not guaranty that proposals, bids or actual Project costs or construction costs will not vary from opinions of probable cost prepared by Consultant. 3.2 Corrections Consultant shall be responsible for the quality, technical accuracy, completeness and coordination of all Services under this Contract. Consultant shall, promptly and without charge, correct all errors in any Services provided by Consultant. 3.3 Risk of Loss The Services shall be provided, performed, and completed at the risk and cost of Consultant. Consultant shall be responsible for damages to property or persons to the extent caused by Consultant's errors, omissions, or negligent acts and for any losses or costs to repair or remedy any work undertaken by Owner based on the Services as a result of any such errors, omissions, or negligent acts. Notwithstanding any other provision of this Contract, Consultant's obligations under this Section 3.3 shall exist without regard to, and shall not be construed to be waived by, the availability or unavailability of any insurance, either of Owner or Consultant, to indemnify, hold harmless, or reimburse Consultant for such damages, losses, or costs. ARTICLE IV INSURANCE; INDEMNIFICATION 4.1 Insurance Contemporaneous with Consultant's execution of this Contract, Consultant shall provide certificates and policies of insurance evidencing at least the minimum insurance coverage and limits set forth in Attachment B. For good cause shown, Owner may extend the time for submission of the required policies of insurance upon such terms, and with such assurances of 5 complete and prompt performance, as Owner may impose in the exercise of its sole discretion. Such policies shall be in a form reasonably acceptable to Owner and from companies with a general rating of A-, and a financial size category of Class V or better, in Best's Insurance Guide and otherwise reasonably acceptable to Owner. Such insurance shall provide that no change to or cancellation of any insurance, nor any reduction in limits or coverage or other modifications affecting this Agreement, shall become effective until the expiration of 30 days after written notice thereof shall have been given by the insurance company to Owner. Consultant shall, at all times while providing, performing, or completing the Services, including without limitation at all times while providing corrective Services pursuant to Section 3.2 of this Contract, maintain and keep in force, at Consultant's expense, at least the minimum insurance coverage and limits set forth in Attachment B. 4.2 Indemnification Consultant, without regard to the availability or unavailability of any insurance, either of Owner or Consultant, shall, to the fullest extent permitted by law, indemnify, save harmless, and reimburse Owner against any and all lawsuits, claims, demands, damages, liabilities, losses, and expenses, including reasonable attorneys' fees, that may arise or be alleged to have arisen out of or in connection with Consultant's negligent acts, errors, or omissions, except only to the extent caused by the sole negligence of Owner. ARTICLE V PAYMENT 5.1 Contract Price Owner shall pay to Consultant, in accordance with and subject to the terms and conditions set forth in this Article V and Attachment A, and Consultant shall accept in full satisfaction for providing, performing, and completing the Services, the amount or amounts in the schedule of prices set forth in Attachment A ("Contract Price"), subject to any additions, deductions, or withholdings provided for in this Contract. 5.2 Taxes,Benefits and Royalties The Contract Price includes applicable federal, state, and local taxes of every kind and nature applicable to the Services as well as all taxes, contributions, and premiums for unemployment insurance, old age or retirement benefits, pensions, annuities, or other similar benefits. Consultant shall have no claim or right to claim additional compensation by reason of the payment of any such tax, contribution, premium, costs, royalties, or fees. 5.3 Progress Payments A. Payment in Installments. The Contract Price shall be paid in monthly installments in the manner set forth in Attachment A("Progress Payments"). B. Pay Requests. Consultant shall, as a condition precedent to its right to receive each Progress Payment, submit to Owner an invoice accompanied by such receipts, vouchers, and other documents as may be necessary to reasonably establish Consultant's prior payment for 6 all labor, material, and other things covered by the invoice and the absence of any lien or other interest of any party in regard to the Services performed under this Contract. In addition to the foregoing, such invoice shall include (a) employee classifications, rates per hour, and hours worked by each classification, and, if the Services are to be performed in separate phases, for each phase; (b) total amount billed in the current period and total amount billed to date, and, if the Services are to be performed in separate phases, for each phase; (c) the estimated percent completion, and, if the Services are to be performed in separate phases, for each phase; and (d) Consultant's certification that, to the best of Consultant's knowledge, information, and belief, all prior Progress Payments have been properly applied to the Services with respect to which they were paid. Owner may, by written notice to Consultant, designate a specific day of each month on or before which pay requests must be submitted. 5.4 Final Acceptance and Final Payment The Services or, if the Services are to be performed in separate phases, each phase of the Services, shall be considered complete on the date of final written acceptance by Owner of the Services or each phase of the Services, as the case may be, which acceptance shall not be unreasonably withheld or delayed. The Services or each phase of the Services, as the case may be, shall be deemed accepted by Owner if not objected to in writing within 30 days after submission by Consultant of the Services or such phase of Services for final acceptance and payment plus, if applicable, such additional time as may be considered reasonable for obtaining approval of governmental authorities having jurisdiction to approve the Services, or phase of Services, as the case may be. Within 30 days after final acceptance, Owner shall pay to Consultant the balance of the Contract Price or, if the Services are to be performed in separate phases, the balance of that portion of the Contract Price with respect to such phase of the Services, after deducting therefrom charges, if any, against Consultant as provided for in this Contract ("Final Payment"). The acceptance by Consultant of Final Payment with respect to the Services or a particular phase of Services, as the case may be, shall operate as a full and complete release of Owner of and from any and all lawsuits, claims, or demands for further payment of any kind for the Services or, if the Services are performed in separate phases, for that phase of the Services. 5.5 Deductions A. Owner's Right to Withhold. Notwithstanding any other provision of this Contract, Owner shall have the right to deduct and withhold from any Progress or Final Payment that may be or become due under this Contract such amount as may reasonably appear necessary to compensate Owner for any loss due to (1) Services that are defective, nonconforming, or incomplete; (2) liens or claims of lien; (3) claims of Consultant's sub-consultants, suppliers, or other persons regardless of merit; (4) delay by Consultant in the completion of the Services; (5)the cost to Owner, including reasonable attorneys' fees, of correcting any of the aforesaid matters or exercising any one or more of Owner's remedies set forth in Section 6.1 of this Contract. Owner shall notify Consultant in writing given in accordance with Section 7.8 of this Contract of Owner's determination to deduct and withhold funds, which notice shall state with specificity the amount of, and reason or reasons for, such deduction and withholding. B. Use of Withheld Funds. Owner shall be entitled to retain any and all amounts withheld pursuant to Subsection 5.5A above until Consultant shall have either performed the 7 obligations in question or furnished security for such performance satisfactory to Owner. Owner shall be entitled to apply any money withheld or any other money due Consultant under this Contract to reimburse itself for any and all costs, expenses, losses, damages, liabilities, suits, judgments, awards, and reasonable attorneys' fees (collectively "Costs") incurred, suffered, or sustained by Owner and chargeable to Consultant under this Contract. Owner shall notify Consultant in writing given in accordance with Section 7.8 of this Contract of each application by Owner of money to reimburse such Costs. 5.6 Accounting Consultant shall keep accounts, books, and other records of all its billable charges and costs incurred in performing the Services in accordance with generally accepted accounting practices, consistently applied, and in such manner as to permit verification of all entries. Consultant shall make all such material available for inspection by Owner, at the office of Consultant during normal business hours during this Contract and for a period of three years after termination of this Contract. Copies of such material shall be furnished, at Owner's expense, upon request. ARTICLE VI REMEDIES 6.1 Owner's Remedies If it should appear at any time prior to Final Payment for all work that Consultant has failed or refused to perform, or has delayed in the performance of, the Services ("Event of Default"), and has failed to cure any such Event of Default within five business days after Consultant's receipt of written notice of such Event of Default, then Owner shall have the right, at its election and without prejudice to any other remedies provided by law or equity, to pursue any one or more of the following remedies: 1. Owner may require Consultant, within such reasonable time as may be fixed by Owner, to complete or correct all or any part of the Services that are defective, nonconforming, or incomplete and to such other action as is necessary to bring Consultant and the Services into compliance with this Contract. 2. Owner may terminate this Contract without liability for further payment of amounts due or to become due under this Contract. 3. Owner may recover from Consultant any and all costs, including reasonable attorneys' fees, incurred by Owner as the result of any Event of Default or as a result of actions taken by Owner in response to any Event of Default. 6.2 Consultant's Remedy Consultant may terminate this Contract upon for failure of Owner to make Progress Payments to which Consultant is entitled if Owner has failed to cure such failure within five business days after Owner's receipt of written notice from Consultant of such failure. 8 6.3 Terminations and Suspensions by Owner Deemed for Convenience Any termination or suspension by Owner of Consultant's rights under this Contract for an alleged default that is ultimately held unjustified shall automatically be deemed to be a termination or suspension for the convenience of Owner under Section 1.9 of this Contract. ARTICLE VII LEGAL RELATIONSHIPS AND REQUIREMENTS 7.1 Binding Effect This Contract shall be binding on Owner and Consultant and on their respective heirs, executors, administrators, personal representatives, and permitted successors and assigns. Every reference in this Contract to a party shall also be deemed to be a reference to the authorized officers, employees, agents, and representatives of such party. 7.2 Relationship of the Parties Consultant shall act as an independent contractor in providing and performing the Services. Nothing in, nor done pursuant to, this Contract shall be construed (1)to create the relationship of principal and agent, partners, or joint venturers between Owner and Consultant or (2)to create any relationship between Owner and any sub-consultant of Consultant. 7.3 No Collusion Consultant hereby represents and certifies that Consultant is not barred from contracting with a unit of state or local government as a result of(i) a delinquency in the payment of any tax administered by the Illinois Department of Revenue unless Consultant is contesting, in accordance with the procedures established by the appropriate revenue Act, its liability for the tax or the amount of the tax, as set forth in 65 ILCS 5/11-42.1-1; or (ii) a violation of either Section 33E-3 or Section 33E-4 of Article 33E of the Criminal Code of 1961, 720 ILCS 5/33E-1 et seq. Consultant hereby represents that the only persons, firms, or corporations interested in this Contract as principals are those disclosed to Owner prior to the execution of this Contract, and that this Contract is made without collusion with any other person, firm, or corporation. If at any time it shall be found that Consultant has, in procuring this Contract, colluded with any other person, firm, or corporation, then Consultant shall be liable to Owner for all loss or damage that Owner may suffer thereby, and this Contract shall, at Owner's option, be null and void. 7.4 Assignment Consultant shall not (1) assign this Contract in whole or in part, (2) assign any of Consultant's rights or obligations under this Contract, or (3) assign any payment due or to become due under this Contract without the prior express written approval of Owner, which approval may be withheld in the sole and unfettered discretion of Owner; provided, however, that Owner's prior written approval shall not be required for assignments of accounts, as defined in the Illinois Commercial Code, if to do so would violate Section 9-318 of the Illinois Commercial Code, 810 ILCS 5/9-318. Owner may assign this Contract, in whole or in part, or any or all of its rights or obligations under this Contract, without the consent of Consultant. 9 7.5 Confidential Information All information supplied by Owner to Consultant for or in connection with this Contract or the Services shall be held confidential by Consultant and shall not, without the prior express written consent of Owner, be used for any purpose other than performance of the Services. 7.6 No Waiver No act, order, approval, acceptance, or payment by Owner, nor any delay by Owner in exercising any right under this Contract, shall constitute or be deemed to be an acceptance of any defective, damaged, flawed, unsuitable, nonconforming, or incomplete Services, nor operate to waive any requirement or provision of this Contract or any remedy, power, or right of Owner. 7.7 No Third Party Beneficiaries No claim as a third party beneficiary under this Contract by any person, firm, or corporation (other than Owner and Consultant) shall be made or be valid against Owner or Consultant. 7.8 Notices All notices required or permitted to be given under this Contract shall be in writing and shall be deemed received by the addressee thereof when delivered in person on a business day at the address set forth below or after being deposited in the United States mail, for delivery at the address set forth below by properly addressed, postage prepaid, certified or registered mail, return receipt requested. Notices and communications to Owner shall be addressed to, and delivered at, the following address: Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60302 Attention: Village Manager Notices and communications to Consultant shall be addressed to, and delivered at, the following address: Engineering Resource Associates, Inc. 3s701 West Avenue, Suite 150 Warrenville, Illinois 60555 Attention: John F. Mayer, Project Manager The foregoing shall not be deemed to preclude the use of other non-oral means of notification or to invalidate any notice properly given by any such other non-oral means. 10 By notice complying with the requirements of this Section 7.8, Owner and Consultant each shall have the right to change the address or addressee or both for all future notices to it, but no notice of a change of address or addressee shall be effective until actually received. 7.9 Governing Laws This Contract and the rights of Owner and Consultant under this Contract shall be interpreted according to the internal laws, but not the conflict of laws rules, of the State of Illinois. 7.10 Changes in Laws Unless otherwise explicitly provided in this Contract, any reference to laws shall include such laws as they may be amended or modified from time to time. 7.11 Compliance with Laws and Grants The Services shall be provided, performed, and completed in accordance with all required governmental permits, licenses, or other approvals and authorizations, and with applicable statutes, ordinances, rules, and regulations. This requirement includes, but is not limited to, compliance with the Fair Labor Standards Act; any statutes regarding qualification to do business; any statutes prohibiting discrimination because of, or requiring affirmative action based on, race, creed, color, national origin, age, sex, or other prohibited classification, including, without limitation, the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. Consultant shall also comply with applicable conditions of any federal, state, or local grant received by Owner or Consultant with respect to this Contract or the Services. Consultant shall be liable for any fines or civil penalties that may be imposed or incurred by a governmental agency with jurisdiction over the Services as a result of Consultant's or its sub-consultants' improper performance of, or failure to properly perform, the Services or any part thereof. Every provision of law required by law to be inserted into this Contract shall be deemed to be inserted herein. 7.12 Ownership of Documents Consultant and Consultant's sub-consultants shall be deemed the original authors and owners respectively of materials produced pursuant to this Contract and shall retain all common law, statutory and other reserved rights, including copyrights. Consultant hereby grants and conveys to Owner perpetual, irrevocable non-exclusive rights and license to use all Required Submittals and other materials produced under this Contract for Village purposes and no other purposes. The Owner agrees to defend and hold the Consultant and the Consultant's consultants harmless from any causes of action, claims, losses, damages and expenses of any nature whatsoever, including reasonable attorney's fees, resulting from any unauthorized re-use of the Consultant's and Consultant's sub-consultants' materials. 11 7.13 Time Except where otherwise stated, references in this Contract to days shall be construed to refer to calendar days. 7.14 Severability The provisions of this Contract shall be interpreted when possible to sustain their legality and enforceability as a whole. In the event any provision of this Contract shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, in whole or in part, neither the validity of the remaining part of such provision, nor the validity of any other provisions of this Contract shall be in any way affected thereby. 7.15 Entire Agreement This Contract sets forth the entire agreement of Owner and Consultant with respect to the accomplishment of the Services and the payment of the Contract Price therefor, and there are no other understandings or agreements, oral or written, between Owner and Consultant with respect to the Services and the compensation therefor. 7.16 Amendments No modification, addition, deletion, revision, alteration, or other change to this Contract shall be effective unless and until such change is reduced to writing and executed and delivered by Owner and Consultant. IN WITNESS WHEREOF, Owner and Consultant have caused this Contract to be executed in two original counterparts as of the day and year first written above. Village of Oak Brook By: Gopal G. Lalmalani Village President Attest: By: Name: Title: Engineering Resource Associates, Inc. By: Name: Title: 12 Attest: By: Name: Title: 13 ATTACHMENT A I. Scope of Services Consultant will provide construction engineering and material testing services for the Pedestrian Access Project B & C, which projects include the construction of crosswalks, the installation of pedestrian signals and lighted bollards, and extending the sidewalks on 16th Street west of Spring Road (Project B), at the intersection of Spring Road and Harger Road (Project C) and, if completed concurrently, the Marriot site (Project G1-private) in accordance with the following work plan: 1. Meetings and Coordination The following meetings are anticipated during the construction phase of this project: Attend pre-construction meeting with contractor, Village of Oak Brook staff, Oakbrook Mall representative, Oak Brook Club representative, landscape architect sub-consultant, utility companies and others. Weekly project meetings to review contractor progress, discuss project issues, coordinate with projects and view upcoming operations. Distribute meeting summaries to attendees and other interested parties. Coordinate with testing consultant and contractor to ensure material testing conforms to contract requirements. 2. Shop Drawings & Submittals Record data received, maintain a file of drawings and submissions, and check construction for compliance with them. Review shop drawings and other submittals from the project contractor for conformance with the requirements of the contract documents. Notify the Village of any deviations or substitutions. With the notification, provide the Village with a recommendation for acceptance or denial, and request direction from the Village regarding the deviation or substitution. 3. Scheduling Monitor contractor's progress and adherence to project schedule. Review schedule with contractor on a daily basis and require contractor to update schedule on a weekly basis as necessary. Track and record calendar and working days as they are expended. 4. Construction Observation Provide one, full-time resident engineer for the anticipated number of 40 actual days worked. Serve as the Village's liaison with the contractor primarily through the contractor's superintendent, public/private utilities and various jurisdictional agencies. Arrange required material testing with the testing sub-consultant. Review weekly progress, prepare a weekly summary to be approved by the Village and distributed by mail to the interested parties. Daily review and inspection of traffic and erosion control items. Maintain a database of names, addresses and telephone numbers of subcontractors, contractors, suppliers, and utility companies and other entities involved with the project. Alert the contractor's field superintendent when un-approved materials or equipment are being used and advise the Village of such occurrences. 5. Documentation Consultant will utilize standard IDOT inspection reports and other construction documentation that complies with IDOT documentation procedures including: Track and measure contract pay item quantities using Inspector's Daily Reports. Keep and maintain a daily diary summarizing contractor operations, coordination activities, weather, project issues, etc. Collect and file material tickets. Prepare weekly reports. Submit project documentation to Consultant office for use in reviewing contractor pay request. Track contractor time and materials expended on extra work items. 6. Material Testing Consultant's material testing sub-consultant, Rubino Engineering, will be on site during pouring operations to ensure PCC materials meet the requirements of the specifications. A total of seven concrete test pours will be performed. 7. Pay Request& Change Order Review Review applications for payment and compare to documentation records on a monthly basis. Forward recommendations for payment to Village staff Review change order documentation and justifications. Forward change order recommendations to Village staff 8. Project Close-Out Prepare a list of items for correction by the contractor. Review testing results and incorporate into punch list. Work with Village staff to incorporate items into the punch list. Work with contractor to complete all punch list items in a timely, responsive manner. 9. Construction Layout and Record Drawings The project contractor will be required to provide construction layout services and to provide accurate, complete record drawings at the completion of construction. Consultant will provide control information and spot check contractor layout. Consultant will also work with the contractor to ensure a complete set of record drawings is completed. II. Schedule The Project Commencement Date is September 22, 2014, and the Project is to be completed by November 21, 2014 within an anticipated number of 40 actual days worked. III. Fees The Contract Price for the construction engineering services described in the Agreement are on a direct labor multiplier, not to exceed basis. Our direct labor multiplier for this assignment will be 2.80 times direct employee hourly rates. Direct costs will be charged at their actual rate incurred with no markup. The fees are summarized as follows: Task Hours Fee Construction Engineering Services 422 $36,911 Direct Costs & Material Testing Sub-Consultant $8,575 Total,Not-To-Exceed 422 $45,486 Fees are based upon a completion date of November 21, 2014. If the project exceeds beyond this period, additional fees may be required. ATTACHMENT B INSURANCE REQUIREMENTS The Consultant shall obtain insurance of the types and in the amounts listed below: The Consultant and all subcontractors of Consultant performing any work pursuant to this Agreement shall be required to carry such insurance as specified herein. The Consultant and subcontractors shall procure and maintain for the duration of the Agreement insurance with limits no less than: A. General Liability - $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage, provided that when the estimated cost of the work in question does not exceed$5,000,the required limit shall be$500,000; B. Automobile Liability (if applicable) - $1,000,000 combined single limit per accident for bodily injury and property damage; C. Worker's Compensation and Employer's Liability - Worker's Compensation limits as required by the Labor Code of the State of Illinois and Employer's Liability limits of $1,000,000 per accident. Any deductibles or self-insured retention must be declared to and approved by the Village. At the option of the Village, either the insurer shall reduce or eliminate such deductible or self-insured retention as respects the Village, its officers, officials, employees and volunteers; or the Insured shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses to the extent of such deductible or self-insured retention. The policies shall contain, or be endorsed to contain,the following provisions: D. General Liability and Automobile Liability Coverage - 1) The Village, its officers, officials, employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Insured; premises owned, occupied or used by the Insured. The coverage shall contain no special limitations on the scope of protection afforded to the Village, its officers, officials, employees,volunteers, or agents. 2) The Insured's insurance coverage shall be primary insurance as respects the Village, its officers, officials, employees, volunteers and agents. Any insurance or self- insurance maintained by the Village, its officers, officials, employees, volunteers or agents shall be in excess of the Insured's insurance and shall not contribute with it. 3) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Village, its officers, officials, employees, volunteers or agents. 4) The Insured's insurance shall apply separately to each covered party against whom claim is made or suit is brought except with respect to the limits of the insurer's liability. E. Worker's Compensation and Employer's Liability Coverage The policy shall waive all rights of subrogation against the Village, its officers, officials, employees, volunteers and agents for losses arising from work performed by the insured for the Village. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail has been given to the Village. Each insurance policy shall name the Village, its officers, officials and employees, volunteers and agents as additional Insureds. Insurance is to be placed with insurers with a Best's rating of no less than A: VII. Each Insured shall furnish the Village with certificates of insurance and with original endorsements effecting coverage required by this provision. The certificate and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms approved by the Village and shall be subject to approval by the Village Attorney before work commences. The Village reserves the right to require complete, certified copies of all required insurance policies, at any time. Each insured shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.