Surveying Services Jorie Blvd and Kensington RdSURVEYING SERVICES AGREEMENT
VILLAGE OF OAK BROOK
THIS AGREEMENT, made and entered into this day of, 2018, by and
between Engineering Resource Associates (hereinafter referred to as "ENGINEER") and the
Village of Oak Brook, a municipal corporation (hereinafter referred to as "VILLAGE") covers
certain Surveying Services for Section of Jorie Boulevard from 22"d Street to 31St Street
Kensington Road from Jorie Boulevard West to the End and Kensington Court from
Kensington Road North to the End in Oak Brook Illinois (hereinafter referred to as
"PROJECT").
The VILLAGE wishes to retain ENGINEER for these certain professional surveying
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 surveying 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 surveying 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
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duties. ENGINEER shall not be responsible for the failure of VILLAGE, any
architect, engineer, consultant, contractor or subcontractor to carry out their
respective responsibilities in accordance with the PROJECT documents, or any
other agreement concerning the PROJECT. Any provision which purports to amend
this provision shall be without effect unless it contains a reference that the content
of this Subsection 5(c) is expressly amended for the purposes described in such
amendment and is signed by ENGINEER.
d. Corrections
In the event plans, surveys or construction staking is found to be in error and
revisions of the plans or survey or construction staking are necessary, the
ENGINEER agrees that he will perform such work without expense to the
VILLAGE, even though final payment has been received by him. He shall give
immediate attention to these changes so there will be a minimum delay to the
contractor.
e. Suspension of Services
VILLAGE may, at any time, by written order to ENGINEER (Suspension of
Services Order), require ENGINEER to stop all, or any part of, the services required
by this Agreement. Upon receipt of such an order, ENGINEER shall immediately
comply with its terms and take all reasonable steps to minimize the occurrence of
costs allocable to the services covered by the order.
ENGINEER will not be obligated to provide the same personnel employed prior to
suspension when the services are resumed, in the event the period of any suspension
exceeds thirty (30) days.
f Termination
1) The VILLAGE shall have the right to terminate this Agreement with or
without cause upon serving thirty (30) days written notice upon the other
ply.
2) Upon such termination, the liabilities of the parties to this Agreement shall
cease, but they shall not be relieved of the duty to perform their obligations
up to the date of termination. All warranties and the provisions of Section
5, Paragraph I shall be in full force and effect after termination.
3) Upon such termination, ENGINEER shall cause to be delivered to the
VILLAGE all drawings, specifications, partial and completed estimates,
and any and all other data concerning the PROJECT which ENGINEER is
then accomplishing for the VILLAGE. ENGINEER shall be paid for any
services completed and any services partially completed in accordance with
Sections 2 and 3.
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g. Warranties
In addition to the covenants herein made, the ENGINEER represents and certifies
that its surveying 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 famished 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
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liable to the Village for all loss or damage that the VILLAGE may 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.
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.
in. Entire Agreement
This Agreement sets forth all the covenants, conditions and promises between the
parties. There are no covenants, promises, agreements, conditions or
understandings between the parties, either oral or written, other than those
contained in this Agreement and the 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 party
to enforce at any time, or for any period of time, any of the provisions hereof, shall
be limited to the particular instance, shall not operate or be deemed to waive any
future breaches of this Agreement, and shall not be construed to be a waiver of any
provision, except for the particular instance.
q. Severability of Invalid Provisions
If any provisions of this Agreement shall be held to contravene or be invalid under
the laws of any particular State, County or jurisdiction where used, such
contravention shall not invalidate the entire Agreement, but it shall be construed as
if not containing the particular provision or provisions held to be invalid in the
particular State, County or jurisdiction and the rights or obligations of the parties
hereto shall be construed and enforced accordingly.
r. Force Majeure
Neither VILLAGE nor ENGINEER shall be liable for any fault or delay caused by
any contingency beyond their control, including, but not limited to, acts of God,
wars, strikes, walkouts, fires, or natural calamities.
S. Access and Permits
VILLAGE shall arrange for ENGINEER to enter upon public and private property
and shall obtain all necessary approvals and permits required from all governmental
authorities having jurisdiction over the PROJECT.
t. Designation of Authorized Representatives
Each party shall designate one or more persons to act with authority in its behalf in
respect to appropriate aspects of the PROJECT. The persons designated shall
review and respond promptly to all communications received from the other party.
U. Address for Notices
Whenever it is provided in this Agreement that notice shall be given or other
communication sent to ENGINEER, such notices or communications shall be
delivered or sent to:
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a n sso9s7_v i
Engineering Resource Associates
35701 West Avenue, Suite 150
Warrenville, Illinois 60555
Attn: John F. Mayer, PE, CFM
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: Doug Patchin, Director of Public Works
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
additional services. Compensation for such additional services shall be negotiated
by the parties and included in this Agreement by a written amendment.
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X. Time
Time is of the essence in the performance of all terms and provisions of this
Agreement.
�. Third Party Benefician
No claim as a third party beneficiary under this Agreement by awry 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.
above IN WITNESS WHEREOF, the parties set their hands and seals on the date first written
k0FOA*_ROOK
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APPENDIX 1
SCOPE OF SERVICES
Per Proposal for Professional Surveying Services submitted by
Engineering Resource Associates, dated October 1, 2018.
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APPENDIX II
COMPENSATION SCHEDULE
Per Proposal for Professional Surveying Services submitted by
Engineering Resource Associates, dated October 1, 2018.
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k11850987_vl
APPENDIX III
TIME SCHEDULE
Per Proposal for Professional Surveying Services submitted by
Engineering Resource Associates, dated October 1, 2018.
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M11850987_vl
ENGINEERINGSCIENTISTS�
RESOURCE ASSOCIATES
October 1, 2018
Mr. Doug Patchin
Director of Public Works
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, Illinois 60523
Subject: Proposal for Land Surveying Services
Topographic survey of Jorie Boulevard/Kensington Rd/Kensington Court
Oak Brook, Illinois
Dear Mr. Patchin:
Engineering Resource Associates, Inc. (ERA) is pleased to submit this proposal for land surveying
services for section of Jorie Boulevard from 22nd Street to 31'` Street, Kensington Road from Jorie
Boulevard west to the end and Kensington Court from Kensington Road north to the end. The proposal
is based upon your request for proposal, our knowledge of the project, and our experience on similar
projects.
Project Understanding
The Village of Oak Brook desires to make improvements to Jorie Boulevard that include median
landscape enhancements, irrigation, decorative street lighting, cross walk upgrades and traffic signal
modifications. The Village also plans to improve Kensington Road and Kensington Court with
decorative street lighting, and minimal landscape enhancements. The Village has approved the
preliminary concept plans that include enhancements throughout the medians. The new street
lighting along Jorie Boulevard plans to utilize the existing electrical conduit, wiring and concrete bases.
In addition, a block of Forest Gate Road just west of Jorie Boulevard is planned to have median
enhancements.
In order to proceed with the final design of the improvements, the Village will need a topographic
survey of the project area.
Scope of Services
ERA will provide land surveying services in accordance with the following work plan:
WARRENVILLE CHICAGO CHAMPAIGN
1,"01 Wes A eenur,. S. irc 1t 0 10 South Rivers de Pfara Suite 8 5 2416 Galen Drive
Wirreowllc IL 61',556 Gnicagia. It 60606 Champai9n. IL 61.821.
P 630393_10&0 P 312.474.7841 P 217351.6268
www.eraconsultants.com
Village of Oak Brook, Illinois
October 1, 2016
1. Jorie Boulevard —A detailed topographic survey along Jorie Boulevard will be limited to the
signalized intersections of Forest Gate Road, Kensington Road and Jorie Plaza Road and at the
viaduct location. Survey for the remainder of the section of Jorie Boulevard will include a full
topographic survey of the boulevard median section, the curb location and the existing street light
foundations. Once the irrigation service locations are determined, a supplemental topographic
survey will be completed at the watermain connection.
2. Kensington Road/Kensington Court — A detailed topographic survey will be performed along both
Kensington Road and Kensington Court for the purpose of installing new street lighting and some
median enhancements.
3. Forest Gate Road —A detailed topographic survey will be performed along Forest Gate Road one
block west of Jorie Boulevard.
4. Jorie Boulevard Trail Underpass — A detailed topographic survey will be performed within the
viaduct area under Jorie Boulevard.
Services Not Included
Only services specifically described in this proposal are included in our scope of work. The following
are specifically excluded, although they may be added as a contract amendment at a future date for an
agreed additional fee.
• Boundary Survey
• Utility Locating service
• Tree Inventory Survey
Schedule
The work described in this agreement will be performed as expeditiously as weather and other physical
conditions permit. The Engineer shall not be liable to the Owner, if delayed in, or prevented from
performing the work as specified herein through any cause or causes beyond the control of the
Engineer and not caused by his own fault or negligence including acts of God, or the public enemy,
inclement weather conditions, acts of the government after the effective date of this agreement, fires,
floods, epidemics, strikes, jurisdictional disputes, lockouts, and freight embargoes.
Fees
The cost associated with the services included in this proposal will be a Phased Fixed Fee according to
the following schedule.
1. Jorie Boulevard
$ 11,100
2. Kensington Road/Kensington Court
$ 5,400
3. Forest Gate Road
$ 1,900
4. Jorie Boulevard Trail Underpass
900
Total:
$ 19,300
;9]
Village of Oak Brook, Illinois
Exhibit 1
Acceptance & Authorization Form — October 1, 2018 Proposal
Topographic Survey of Jorie Boulevard/Kensington Road/Kensington Court
Engineering Resource Associates, Inc.
October 1, 2018
Village of Oak Brook
Authorized Signature thoriz d gnat —
John F. Mayer, PE CFM Q I
Printed Name and Title I ! red Name and Title
3S701 West Avenue
Suite 150 Date
Warrenville, Illinois 60555
630-393-3060 1, 630-393-2152 f
Please Provide Contact Information:
Mailing Address:
(please provide street address for UPS deliveries)
Telephone & Facsimile Numbers:
Email Address:
INVOICES should be sent via:
If different than above address,
invoices should be addressed to:
Invoice Email Address (if different than above):
Note any billing procedures/forms:
Email ❑ USPS Mail ❑ Email & USPS Mail ❑
Attn:
O
AtQ A%W--
Village of Oak Brook, Illinois
October 1, 2018
Direct costs/reimbursables including printing costs, mileage and postage will be charged at the actual
rate incurred plus ten percent. Invoices will be issued monthly reflecting the percent of the project
completed as of the "services thru" date on the invoice. Fees for services beyond the scope of this
proposal, when requested by the Client, will be compensated for on an hourly basis in accordance with
the attached schedule of hourly rates (Exhibit 2).
Please send payment(s) to:
3s701 West Ave., Suite #150, Warrenville IL 60555
Credit Card payments are also accepted over the phone, via email, or in the office with a 3.5%
processing fee added.
We appreciate the opportunity to submit this proposal and trust that it meets with your approval. If
acceptable, please sign the proposal where indicated below (Exhibit 1) and return one (1) copy for our
files. Receipt of executed proposal will serve as authorization to continue with the project to the full
extent of the contract. The attached General Terms and Conditions are expressly incorporated into
and are an integral part of this proposal for engineering services.
If you have any questions, please contact me at 630-393-306Ox43 or imayer@eraconsultants.com.
Sincerely,
ENGINEERING RESOURCE ASSOCIATES, INC.
WARRENVILLE
John F. Mayer, PE, CFM
JFM/kkp
Attachments
Enclosure
0
r
Village of Oak Brook, Illinois S October 1, 2018
Exhibit 2
Engineering Resource Associates, Inc.
STANDARD CHARGES FOR PROFESSIONAL SERVICES
JANUARY 1, 2018 THROUGH DECEMBER 31, 2018
Staff Category Hourly Billing Rate
Professional Engineer VI
$236.00
Professional Engineer V
$215.00
Professional Engineer IV
$182.00
Professional Engineer III
$146.00
Professional Engineer II
$131.00
Professional Engineer 1
$110.00
Structural Engineer VI
$236.00
Structural Engineer III
$144.00
Staff Engineer III
$104.00
Staff Engineer 11
$93.00
Staff Engineer 1
$89.00
Engineering Intem III
$53.00
Engineering Intern II
$40.00
Engineering Intern 1
$37.00
Engineering Technician V
$120.00
Engineering Technician IV
$102.00
Engineering Technician III
$82.00
Engineering Technician II
$56.00
Engineering Technician 1
$38.00
Environmental Director
$193.00
Environmental Specialist III
$137.00
Environmental Specialist II
$110.00
Environmental Specialist 1
$89.00
Professional Surveyor II
$168.00
Professional Surveyor 1
$137.00
Surveyor IV
$88.00
Surveyor III
$79.00
Surveyor 11
$69.00
Surveyor 1
$46.00
GIS/Public Outreach
$82.00
Administrative Director
$147.00
Administrative Staff IV
$98.00
Administrative Staff 111
$85.00
Administrative Staff II
$70.00
Administrative Staff 1
$62.00
Direct Costs will be billed at their actual rate incurred plus ten (10%) percent
Village of Oak Brook, Illinois 6 October 1, 2018
Engineering Resource Associates, Inc.
GENERAL TERMS AND CONDITIONS
1. COMPLIANCE WITH LAWS: Engineering Resource Associates, Inc. (Engineer) will strive to exercise usual and
customary professional care in his 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.
2. 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 parry.
3. 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. 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.
4. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with Articles previously
set forth by Item 1. of this Agreement, together with the laws of the State of Illinois.
6. RESPONSIBILITY OF THE ENGINEER: 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.
6. CLIENT'S RESPONSIBILITIES: 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, to the extent arising in whole or in part out of the
negligence of the Contractor, its subcontractors, the officers, employees, agents, and subcontractors of any
of them, or anyone for whose acts any of them may be liable, regardless of whether or not such Losses are
caused in part by a party indemnified hereunder. Specifically excluded from the foregoing are Losses arising
out of the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs, or
specifications, and the giving of or failure to give directions by the Engineer, its consultants, and the agents
and employees of any of them, provided such giving or failure to give is the primary cause of Loss.
The Client 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
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Village of Oak Brook, Illinois 7 October 1, 2015
insurance. Such insurance shall include products and completed operations and contractual liability
coverages, shall be primary and non-contributing 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.
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.
8. 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.
9. DOCUMENTS DELIVERED TO CLIENT: Drawings, specifications, and reports 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.
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
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Village of Oak Brook, Illinois
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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
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.
10. REUSE OF DOCUMENTS: All Project Documents including but not limited to reports, original boring logs, field
data, field notes, laboratory test data, calculations, 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.
11. 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 ads of God, wars, strikes, walkouts, fires, natural calamities,
or demands or requirements of governmental agencies.
12. RELATIONSHIP BETWEEN ENGINEER AND CLIENT: Engineer shall serve as Clients 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.
13, 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 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.
14. 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.
15. 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.
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Village of Oak Brook, Illinois
October 1, 2018
16. 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 and without effect to the extent they conflict with the terms of this Agreement.
17. 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".
18. 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. 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. 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 13 of this Agreement. Payments due Engineer are not contingent upon project approval or project
financing and are the sole responsibility of the Client. If an invoice for work performed by Engineer remains
unpaid sixty (60) days form the date of the invoice and, if there is no written resolution of payment from the
client during the sixty (60) day period, Engineer will stop all work on the assignment.
19. INDEMNIFICATION: Engineer agrees, to the fullest extent permitted by law, to indemnify and hold harmless
Client up to the amount of this contract fee (for services) from loss or expense, including reasonable
attorney's fees to the extent caused by Engineer's negligent acts, errors or omissions in the performance of
professional services under this Agreement. Client agrees, to the fullest extent permitted by law, to
indemnify and hold harmless Engineer from any damage, liability or cost, including reasonable attorneys'
fees and costs of defense, to the extent caused by the Client's negligent acts, errors or omissions and those
of his or her contractors, subcontractors or consultants or anyone for whom the Client is legally liable, and
arising from the project that is the subject of this Agreement. 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.
20. 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 daim 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 not limited to the Engineer's negligence, errors, omissions,
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Village of Oak Brook, Illinois 10 October 1, 2015
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.
21. 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.
22. 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.
23. WAIVER OF CONTRACT BREACH: The waiver of one party of any breach of the 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.
24. 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 opinions of probable Project Construction Cost provided for herein are to be made on the basis of his
experience and qualifications and represent his best 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. 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.
25. CONSTRUCTION OBSERVATION CLAUSE: The Owner will include the following clause in the construction
contract documents and Owner agrees not to modify or delete it:
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 Workers Compensation Act, court
interpretations of said Act or otherwise; and agrees to indemnify and defend Owner and Engineer and their
agents, employees and consultants (the "Indemnities") from and against all such loss, expense, damage or
injury, including reasonable attorneys' fees, that the indemnities may sustain as a result of such claims,
except to the extent that Illinois law prohibits indemnity for the indemnities' own negligence.
26. 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.
27. HAZARDOUS MATERIALS: It is acknowledged by both parties that Engineer's scope of services does not
include any services related to asbestos or hazardous or toxic materials. In the event Engineer or any other
party encounters asbestos or hazardous or toxic materials at the job site, or should it become known in any
way that such materials may be present at the job site or any adjacent areas that may affect the performance
of Engineer's services, Engineer may at his option and without liability for consequential or any other
damages, suspend performance of services on the project until Client retains appropriate specialist
consultant(s) or contractor(s) to identify, abate and/or remove the asbestos or hazardous or toxic materials,
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Village of Oak Brook, Illinois 11 October 1, 2018
and warrant that the job site is in full compliance with applicable laws and regulations
28. RIGHT of ENTRY: Client hereby grants Engineer and its subcontractors or agents the right to enter from time
to time property owned by Client and/or other(s) in order for Engineer to fulfill the scope of services included
hereunder. Client understands that use of exploration equipment may cause some damage, the correction
of which is not part of this Agreement. Client also understands that the discovery of certain hazardous
conditions and/or taking preventive measures relative to these conditions may result in a reduction of the
Property's value. Accordingly, Client waives any claim against Engineer and its subcontractors or agents,
and agrees to defend, indemnify and hold Engineer harmless from any claim or liability for injury or loss
allegedly arising from procedures associated with subsurface exploration activities or discovery of hazardous
materials or suspected hazardous materials. In addition, Client agrees to compensate Engineer for any time
spent or expenses incurred by Engineer in defense of any such claim with compensation to be based upon
Engineer's prevailing fee schedule and expense reimbursement policy. Engineer shall not be liable for
damage or injury from damage to subterranean structures (pipes, tanks, cables, or other utilities, etc.) which
are not called to Engineer's attention in writing and correctly shown on the diagram(s) furnished by Client to
Engineer.
29. SAMPLES: Soil, rock, water and/or other samples obtained from the Project site are the property of Client.
Engineer shall preserve such samples for no longer than sixty (60) calendar days after the issuance of any
document that includes the data obtained from them, unless other arrangements are mutually agreed upon in
writing. Should any of these samples be contaminated by hazardous substances or suspected hazardous
substances, it is Client's responsibility to select and arrange for lawful disposal procedures, that is,
procedures which encompass removing the contaminated samples from Engineer's custody and transporting
them to a disposal site. Client is advised that, in all cases, prudence and good judgment should be applied
in selecting and arranging for lawful disposal procedures. Due to the risks to which Engineer is exposed,
Client agrees to waive any claim against Engineer, and to defend, indemnify and hold Engineer harmless
from any claim or liability for injury or loss arising from containing, labeling, transporting, testing, storing, or
other handling of contaminated samples. Client also agrees to compensate Engineer for any time spent and
expenses incurred by Engineer in defense of any such claim, with such compensation to be based upon
Engineer's prevailing fee schedule and expense reimbursement policy.
END OF GENERAL TERMS AND CONDITIONS
Coy
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.
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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