R-42-02 06/10/02RESOLUTION
RESOLUTION AUTHORIZING APPROVAL OF AN ENGINES
WITH CHRISTOPHER B. BURKE ENGINEERING, LTD. IN C;
THE NEW AVENUE CULVERT REPLACEMENT
6dreze_.<_&
WHEREAS, the Village of Lemont requires engineering services rela mu �„ ,.._ _
the New Avenue Culvert Replacement Project; and
WHEREAS, the Village of Lemont seeks to utilize the firm of Christopher B. Burke
Engineering, Ltd.; and
WHEREAS, the Village and Christopher B. Burke Engineering, Ltd. have negotiated an
agreement to identify the terms and conditions of the services to be provided.
NOW, THEREFORE, BE IT RESOLVED, by the President and Board of Trustees that the
agreement attached hereto as Exhibit A is hereby approved.
PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF
THE VILLAGE OF LEMONT, COUNTIES OF COOK, WILL AND DUPAGE,
ILLINOIS, on this 10th day of June , 2002.
John Benik V
Debby Blatzer (/
Peter Coules �/
Connie Markiewicz (/
Steven Rosendahl V
Jeanette Virgilio
AYES NAYS PASSED ABSENT
dd
HARLENE SM LEN, Village Clerk
Approved by me this 10th day of
June , 2002.
1
Approved as to form:
illage Clerk
JOHN ANTONOPOULOS, Village Attorney
CHRISTOPHER B; BURKE ENGINEERING, LTD. ENGINEERING
9575 West Higgins Road • Suite 600 • Rosemont, Illinois 60018 -4920 • TEL (847) 823 -0500 • FAX (847) 823 -0520
DECEIVE
JUN - 5 2002 1
May 24, 2002
Revised June 3, 2002
Village of Lemont
418 Main Street
Lemont, IL 60439
Attention: Stephen M. May, PE, Village Engineer
Subject: Proposal for Professional Engineering Services
Resident Engineering /Construction Observation of New Avenue Culvert
Dear Mr. May:
Christopher B. Burke Engineering, Ltd. (CBBEL) is pleased to present this Proposal for
Professional Engineering Services related to resident engineering /construction observation
for the New Avenue culvert replacement project. Included with this proposal is our
Understanding of the Assignment, Scope of Services and Fee Estimate.
UNDERSTANDING OF THE ASSIGNMENT
The Village of Lemont has determined that they will proceed with the infrastructure
improvements for the New Avenue Culvert. The Village has had contract documents for the
work prepared by Christopher B. Burke Engineering, Ltd. (CBBEL).
The Village has requested CBBEL to provide full -time resident engineering on the project.
We understand that the Village of Lemont will act as the Owner as far as the contract
administration is concerned.
SCOPE OF SERVICES
We have broken down the Scope of Services for resident engineering /construction
observation into a series of tasks as outlined below:
Task 1 — Construction Observation and Contract Administration:
Under this task we will provide an on -site resident engineer with hours as dictated by the
contractor's construction schedule and activities. The contract is estimated to be completed
in 40 working days; it is our experience that the contractor will work an average of eight
hours a day for this period. In our opinion, this will require full time observation during
certain construction periods as well as a reduced observation during other periods. We will
D
coordinate with the contractor, provide interpretation of the plans and specifications and
administer the construction contract. We will make all surveys and measurements related to
final quantity measurement and documentation. We will also videotape existing conditions
to establish a record of conditions before construction begins.
We anticipate that this contract will require an additional ten working days for final
documentation, record drawings and project closeout.
The Contractor(s) will be informed by the Village of Lemont that neither the presence of our
field staff nor the observation and testing by our firm shall excuse him in any way for defects
discovered in the work. It should be understood that we will not be responsible for job and
site safety on this project; job and site safety shall be the sole responsibility of the
Contractor(s).
Task 2 — Materials Testing:
We will provide quality control verification testing of materials as a check on the contractor's
submitted test results. The scheduling and frequency of testing will be determined as
construction progresses and as warranted by field conditions. We have provided an
estimated budget for these services in the Estimated Fee, although a precise scope is not
defined. The budget estimate is based on our experience with similar projects and testing
that we can anticipate at this time. We propose to perform these services through the use of
our sub - consultant, Testing Service Corporation (TSC).
ESTIMATED CONSTRUCTION ENGINEERING FEE
We propose to perform this work on a time and materials basis and bill you in accordance
with the attached Schedule of Charges for Professional Services. We propose to perform all
of the above tasks for a not to exceed fee of $29,990.00. We have broken down this
Estimate of Fee by tasks as outlined in the table below.
SMJlmc
N: \Proposals \PROPOSALS 2002 \Lemont- NewAvenueCulvert.524.doc
Page 2 of 3
ACTIVITY
PERSONNEL AND HOURS
TOTAL
COST
SALARY
PROJECT
MANAGER
RESIDENT
ENGINEER
TOTAL
HOURS
HOURLY RATE
$ 110.00
$ 92.00
Construction Observation
15
295
310
$ 28,790.00
Materials Testing
--
--
--
$ 1,200.00
SUBTOTAL
15
295
310
$ 29,990.00
SMJlmc
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Page 2 of 3
The estimated fee is based on the Scope of Services outlined above. Direct costs for
blueprints, photocopying, mailing, overnight delivery, messenger services and report
compilation are not included in the Fee Estimate. We will bill you in accordance with the
attached Schedule of Charges for Professional Services. We will not exceed the estimate of
fee without your prior authorization. We will establish our contract in accordance with the
attached General Terms and Conditions. The Schedule of Charges and General Terms and
Conditions are both expressly incorporated into and are an integral part of this contract for
professional services. It should be emphasized that any requested meetings or additional
engineering services shall be billed to you at a time and materials basis (see attached hourly
rates) after receiving approval from the Village of Lemont.
We trust that this proposal is responsive to your needs. If this proposal meets with your
approval, please sign both copies and return one to us to indicate your acceptance and
authorization to proceed with the work.
Sincerely,
Christopher B. Burke, PhD, PE
President
Encl: 2002 Schedule of Charges (Lemont)
General Terms and Conditions
THIS PROPOSAL, SCHEDULE OF CHARGES, AND GENERAL TERMS AND
CONDITIONS ACCEPTED FOR THE VILLAGE OF LEMONT
� Din /n/
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V i l %9'e
BY:
TITLE:
DATE:
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N: \Proposals \PROPOSALS 2002 \Lemont- NewAvenueCulvert.524.doc
Page 3 of 3
CHRISTOPHER B. BURKE ENGINEERING, LTD.
STANDARD CHARGES FOR PROFESSIONAL SERVICES
JANUARY, 2002
Charges*
Personnel ($ /Hr)
Principal 173
Senior Engineer 150
Engineer V 110
Engineer IV 99
Engineer III 92
Engineer II 75
Land Surveying Manager 110
Senior Project Surveyor 95
Project Surveyor 70
Staff Surveyor 55
Environmental Planner 76
Junior Engineer 64
Senior Engineering Technician 95
Engineering Technician 11 92
Engineering Technician I 76
Engineering Technician 40
Senior Environmental Resources Specialist 95
Environmental Resource Specialist III 84
Environmental Resource Specialist 11 69
Environmental Resource Technician 64
Accounting 81
Word Processing /Secretary 69
Direct Costs
Outside Copies, Blueprints, Messenger,
Delivery Services, Mileage Cost + 10%
Charges include overhead and profit
N: \Perm\2002 Standard Charges .01- 02- 02(Lemont Oily).doc
CHRISTOPHER B. BURKE ENGINEERING, LTD.
GENERAL TERMS AND CONDITIONS
1. Relationship Between Engineer and Client: Christopher B. Burke Engineering, Ltd.
(Engineer) shall serve as Client's professional engineer consultant in those phases of
the Project to which this Agreement applies. This relationship is that of a buyer and
seller of professional services and as such the Engineer is an independent contractor
in the performance of this Agreement and it is understood that the parties have not
entered into any joint venture or partnership with the other. The Engineer.shall not be
considered to be the agent of the Client. Nothing contained in this Agreement shall
create a contractual relationship with a cause of action in favor of a third party against
either the Client or Engineer.
Furthermore, causes of action between the parties to this Agreement pertaining to acts
of failures to act shall be deemed to have accrued and the applicable statute of
limitations shall commence to run not later than the date of substantial completion.
2. Responsibility of the Engineer: Engineer will strive to perform services under this
Agreement in accordance with generally accepted and currently recognized engineering
practices and principles, and in a manner consistent with that level of care and skill
ordinarily exercised by members of the profession currently practicing in the same
locality under similar conditions. No other representation, express or implied, and no
warranty or guarantee is included or intended in this Agreement, or in any report,
opinion, document, or otherwise.
Notwithstanding anything to the contrary which may be contained in this Agreement or
any other material incorporated herein by reference, or in any Agreement between the
Client and any other party concerning the Project, the Engineer shall not have control
or be in charge of and shall not be responsible for the means, methods, techniques,
sequences or procedures of construction, or the safety, safety precautions or programs
of the Client, the construction contractor, other contractors or subcontractors performing
any of the work or providing any of the services on the Project. Nor shall the Engineer
be responsible for the acts or omissions of the Client, or for the failure of the Client, any
architect, engineer, consultant, contractor or subcontractor to carry out their respective
responsibilities in accordance with the Project documents, this Agreement or any other
agreement concerning the Project. Any provision which purports to amend this
provision shall be without effect unless it contains a reference that the content of this
condition is expressly amended for the purposes described in such amendment and is
signed by the Engineer.
3. Changes: Client reserves the right by written change order or amendment to make
changes in requirements, amount of work, or engineering time schedule adjustments,
and Engineer and Client shall negotiate appropriate adjustments acceptable to both
parties to accommodate any changes, if commercially possible.
4. Suspension of Services: Client may, at any time, by written order to Engineer
(Suspension of Services Order) require Engineer to stop all, or any part, of the services
required by this Agreement. Upon receipt of such an order, Engineer shall immediately
comply with its terms and take all reasonable steps to minimize the costs associated
with the services affected by such order. Client, however, shall pay all costs incurred
by the suspension, including all costs necessary to maintain continuity and for the
resumptions of the services upon expiration of the Suspension of Services Order.
Engineer will not be obligated to provide the same personnel employed prior to
suspension, when the services are resumed, in the event that the period of suspension
is greater than thirty (30) days.
5. Termination: This Agreement may be terminated by either party upon thirty (30) days
written notice in the event of substantial failure by the other party to perform in
accordance with the terms hereof through no fault of the terminating party. This
Agreement may be terminated by Client, under the same terms, whenever Client shall
determine that termination is in its best interests. Cost of termination, including salaries,
overhead and fee, incurred by Engineer either before or after the termination date shall
be reimbursed by Client.
6. Documents Delivered to Client: Drawings, specifications, reports, and any other Project
Documents prepared by Engineer in connection with any or all of the services furnished
hereunder shall be delivered to the Client for the use of the Client. Engineer shall have
the right to retain originals of all Project Documents and drawings for its files.
Furthermore, it is understood and agreed that the Project Documents such as, but not
limited to reports, calculations, drawings, and specifications prepared for the Project,
whether in hard copy or machine readable form, are instruments of professional service
intended for one -time use in the construction of this Project. These Project Documents
are and shall remain the property of the Engineer. The Client may retain copies,
including copies stored on magnetic tape or disk, for information and reference in
connection with the occupancy and use of the Project.
It is also understood and agreed that because of the possibility that information and data
delivered in machine readable form may be altered, whether inadvertently or otherwise,
the Engineer reserves the right to retain the original tapes /disks and to remove from
copies provided to the Client all identification reflecting the involvement of the Engineer
in their preparation. The Engineer also reserves the right to retain hard copy originals
of all Project Documentation delivered to the Client in machine readable form, which
originals shall be referred to and shall govern in the event of any inconsistency between
the two.
The Client understands that the automated conversion of information and data from the
system and format used by the Engineer to an alternate system or format cannot be
accomplished without the introduction of inexactitudes, anomalies, and errors. In the
event Project Documentation provided to the Client in machine readable form is so
converted, the Client agrees to assume all risks associated therewith and, to the fullest
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.
2
The Client recognizes that changes or modifications to the Engineer's instruments of
professional service introduced by anyone other than the Engineer may result in
adverse consequences which the Engineer can neither predict nor control. Therefore,
and in consideration of the Engineer's agreement to deliver its instruments of
professional service in machine readable form, the Client agrees, to the fullest extent
permitted by law, to hold harmless and indemnify the Engineer from and against all
claims, liabilities, losses, damages, and costs, including but not limited to attorney's
fees, arising out of or in any way connected with the modification, misinterpretation,
misuse, or reuse by others of the machine readable information and data provided by
the Engineer under this Agreement. The foregoing indemnification applies, without
limitation, to any use of the Project Documentation on other projects, for additions to this
Project, or for completion of this Project by others, excepting only such use as may be
authorized, in writing, by the Engineer.
7. Reuse of Documents: All Project Documents including but not limited to reports,
opinions of probable costs, drawings and specifications furnished by Engineer pursuant
to this Agreement are intended for use on the Project only. They cannot be used by
Client or others on extensions of the Project or any other project. Any reuse, without
specific written verification or adaptation by Engineer, shall be at Client's sole risk, and
Client shall indemnify and hold harmless Engineer from all claims, damages, losses,
and expenses including attorney's fees arising out of or resulting therefrom.
The Engineer shall have the right to include representations of the design of the Project,
including photographs of the exterior and interior, among the Engineer's promotional
and professional materials. The Engineer's materials shall . not include the Client's
confidential and proprietary information if the Client has previously advised the Engineer
in writing of the specific information considered by the Client to be confidential and
proprietary.
8. Standard of Practice: The Engineer will strive to conduct services under this agreement
in a manner consistent with that level of care and skill ordinarily exercised by members
of the profession currently practicing in the same locality under similar conditions as of
the date of this Agreement.
9. Compliance With Laws: The Engineer will strive to exercise usual and customary
professional care in his /her efforts to comply with those laws, codes, ordinance and
regulations which are in effect as of the date of this Agreement.
With specific respect to prescribed requirements of the Americans with Disabilities Act
of 1990 or certified state or local accessibility regulations (ADA), Client understands
ADA is a civil rights legislation and that interpretation of ADA is a legal issue and not a
design issue and, accordingly, retention of legal counsel (by Client) for purposes of
interpretation is advisable. As such and with respect to ADA, Client agrees to waive any
action against Engineer, and to indemnify and defend Engineer against any claim
arising from Engineer's alleged failure to meet ADA requirements prescribed.
3
Further to the law and code compliance, the Client understands that the Engineer will
strive to provide designs in accordance with the prevailing Standards of Practice as
previously set forth, but that the Engineer does not warrant that any reviewing agency
having jurisdiction will not for its own purposes comment, request changes and /or
additions to such designs. In the event such design requests are made by a reviewing
agency, but which do not exist in the form of a written regulation, ordinance or other
similar document as published by the reviewing agency, then such design changes (at
substantial variance from the intended design developed by the Engineer), if effected
and incorporated into the project documents by the Engineer, shall be considered as
Supplementary Task(s) to the Engineer's Scope of Service and compensated for
accordingly.
10. i . demnification: Engineer shall indemnify and hold harmless Client up to the amo
of th ontract fee (for services) from loss or expense, including reasonable at t ney's
fees for c s for personal injury (including death) or property damage - ; ing out of
the sole negli• •t act, error or omission of Engineer.
Client shall indemnify an old harmless Engineer under thi greement, from loss or
expense, including reasonab - - ttorney's fees, for claim •rpersonal injuries (including
death) or property damage arising • of the sole n - - gent act, error omission of Client.
In the event of joint or concurrent neglig- - •f Engineer and Client, each shall bear
that portion of the loss or expense t - its share • the joint or concurrent negligence
bears to the total negligence (in • ing that of third pa ' -s) which caused the personal
injury or property damage.
Engineer shall not • - iabie for special, incidental or consequential da - • es, including,
but not limite• • loss of profits, revenue, use of capital, claims of custo = s, cost of
purchas- - •r replacement power, or for any other loss of any nature, whether b- -d on
con - t, tort, negligence, strict liability or otherwise, by reasons of the servic
ndered under this Agreement.
11. Opinions of Probable Cost: Since Engineer has no control over the cost of labor,
materials or equipment, or over the Contractor(s) method of determining process, or
over competitive bidding or market conditions, his /her opinions of probable Project
Construction Cost provided for herein are to be made on the basis of his /her experience
and qualifications and represent his /her judgement as a design professional familiar with
the construction industry, but Engineer cannot and does not guarantee that proposal,
bids or the Construction Cost will not vary from opinions of probable construction cost
prepared by him /her. If prior to the Bidding or Negotiating Phase, Client wishes greater
accuracy as to the Construction Cost, the Client shall employ an independent cost
estimator Consultant for the purpose of obtaining a second construction cost opinion
independent from Engineer.
12. Governing Law & Dispute Resolutions: This Agreement shall be governed by and
construed in accordance with Articles previously set forth by (Item 9 of) this Agreement,
together with the laws of the State of Illinois.
4
Any claim, dispute or other matter in question arising out of or related to this Agreement,
which can not be mutually resolved by the parties of this Agreement, shall be subject
to mediation as a condition precedent to arbitration or the institution of legal or equitable
proceedings by either party. If such matter relates to or is the subject of a lien arising
out of the Engineers services, the Engineer may proceed in accordance with applicable
law to comply with the lien notice or filing deadlines prior to resolution of the matter by
mediation or by arbitration.
The Client and Engineer shall endeavor to resolve claims, disputes and other matters
in question between them by mediation which, unless the parties mutually agree
otherwise, shall be in accordance with the Construction Industry Mediation Rules of the
American Arbitration to this Agreement and with the American Arbitration Association.
The request may be made concurrently with the filing of a demand for arbitration but,
in such event, mediation shall proceed in advance of arbitration or legal or equitable
proceedings, which shall be stayed pending mediation for a period of 60 days from the
date of filing, unless stayed for a longer period by agreement-of the parties or court
order.
The parties shall share the mediator's fee and any filing fees equally. The mediation
shall be held in the place where the Project is located, unless another location is
mutually agreed upon. Agreements reached in mediation shall be enforceable as
settlement agreements in any court having jurisdiction thereof.
13. Successors and Assigns: The terms of this Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns: provided,
however, that neither party shall assign this Agreement in whole or in part without the
prior written approval of the other.
14. Waiver of Contract Breach: The waiver of one party of any breach of this Agreement
or the failure of one party to enforce at any time, or for any period of time, any of the
provisions hereof, shall be limited to the particular instance, shall not operate or be
deemed to waive any future breaches of this Agreement and shall not be construed to
be a waiver of any provision, except for the particular instance.
15. Entire Understanding of Agreement: This Agreement represents and incorporates the
entire understanding of the parties hereto, and each party acknowledges that there are
no warranties, representations, covenants or understandings of any kind, matter or
description whatsoever, made by either party to the other except as expressly set forth
herein. Client and the Engineer hereby agree that any purchase orders, invoices,
confirmations, acknowledgments or other similar documents executed or delivered with
respect to the subject matter hereof that conflict with the terms of the Agreement shall
be null, void and without effect to the extent they conflict with the terms of this
Agreement.
16. Amendment: This Agreement shall not be subject to amendment unless another
instrument is duly executed by duly authorized representatives of each of the parties
and entitled "Amendment of Agreement ".
5
17.
Severability of Invalid Provisions: If any provision of the Agreement shall be held to
contravene or to be invalid under the laws of any particular state, county or jurisdiction
where used, such contravention shall not invalidate the entire Agreement, but it shall be
construed as if not containing the particular provisions held to be invalid in the particular
state, country or jurisdiction and the rights or obligations of the parties hereto shall be
construed and enforced accordingly.
18. Force Majeure: Neither Client nor Engineer shall be liable for any fault or delay caused
by any contingency beyond their control including but not limited to acts of God, wars,
strikes, walkouts, fires, natural calamities, or demands or requirements of governmental
agencies.
19. Subcontracts: Engineer may subcontract portions of the work, but each subcontractor
must be approved by Client in writing.
20. Access and Permits: Client shall arrange for Engineer to enter upon public and private
property and obtain all necessary approvals and permits required from all governmental
authorities having jurisdiction over the Project. Client shall pay costs (including
Engineer's employee salaries, overhead and fee) incident to any effort by Engineer
toward assisting Client in such access, permits or approvals, if Engineer perform such
services.
21. Designation of Authorized Representative: Each party (to this Agreement) shall
designate one or more persons to act with authority in its behalf in respect to
appropriate aspects of the Project. The persons designated shall review and respond
promptly to all communications received from the other party.
22. Notices: Any notice or designation required to be given to either party hereto shall be
in writing, and unless receipt of such notice is expressly required by the terms hereof
shall be deemed to be effectively served when deposited in the mail with sufficient first
class postage affixed, and addressed to the party to whom such notice is directed at
such party's place of business or such other address as either party shall hereafter
furnish to the other party by written notice as herein provided.
23. mit of Liabili
bene
relative risks
have been allocate
law, the Engineer's total agg
costs, losses, expenses, damages o
out of this Agreement from any cause or
and expert witness fees and co
professional engineering
Agreement. Such
errors, omis
appl
: The Client and the Engineer have discussed the risks, rewards
the project and the Engineer's total fee for services. In reco• •
benefits of the Project to both the Client and the
that the Client agrees that to the f
e liability to the Clien
natur
of the
neer, the risks
extent permitted by
any and all injuries, claims,
atsoever or claim expenses arising
including attorney's fees and costs,
the total Engineer's fee for
s made part of this
's negligence,
itation
, shall not ex
ces rendered on
es included but are not lim
s, strict liability or breach of contract. It is intended that thi
any and all liability or cause of action however alleged or arising, un
erwise prohibited by law.
c
this prod
ited to the Engi
6
24. Client's Responsibilities: The Client agrees to provide full information regarding
requirements for and about the Project, including a program which shall set forth the
Client's objectives, schedule, constraints, criteria, special equipment, systems and site
requirements.
The Client agrees to furnish and pay for all legal, accounting and insurance counseling
services as may be necessary at any time for the Project, including auditing services
which the Client may require to verify the Contractor's Application for Payment or to
ascertain how or for what purpose the Contractor has used the money paid by or on
behalf of the Client.
The Client agrees to require the Contractor, to the fullest extent permitted by law, to
indemnify, hold harmless, and defend the Engineer, its consultants, and the employees
and agents of any of them from and against any and all claims, suits, demands,
liabilities, losses, damages, and costs ( "Losses "), including but not limited to costs of
defense, arising in whole or in part out of the negligence of the Contractor, its
subcontractors, the officers, employees, agents, and subcontractors of any of them, or
anyone for whose acts any of them may be liable, regardless of whether or not such
Losses are caused in part by a party indemnified hereunder. Specifically excluded from
the foregoing are Losses arising out of the preparation or approval of maps, drawings,
opinions, reports, surveys, change orders, designs, or specifications, and the giving of
or failure to give directions by the Engineer, its consultants, and the agents and
employees of any of them, provided such giving or failure to give is the primary cause
of Loss. The Client also agrees to require the Contractor to provide to the Engineer the
required certificate of insurance.
The Client further agrees to require the Contractor to name the Engineer, its agents and
consultants on the Contractor's policy or policies of comprehensive or commercial
general liability insurance. Such insurance shall include products and completed
operations and contractual liability coverages, shall be primary and noncontributing with
any insurance maintained by the Engineer or its agents and consultants, and shall
provide that the Engineer be given thirty days, unqualified written notice prior to any
cancellation thereof.
In the event the foregoing requirements, or any of them, are not established by the
Client and met by the Contractor, the Client agrees to indemnify and hold harmless the
Engineer, its employees, agents, and consultants from and against any and all Losses
which would have been indemnified and insured against by the Contractor, but were not.
When Contract Documents prepared under the Scope of Services of this contract
require insurance(s) to be provided, obtained and /or otherwise maintained by the
Contractor, the Client agrees to be wholly responsible for setting forth any and all such
insurance requirements. Furthermore, any document provided for Client review by the
Engineer under this Contract related to such insurance(s) shall be considered as sample
insurance requirements and not the recommendation of the Engineer. Client agrees to
have their own risk management department review any and all insurance requirements
for adequacy and to determine specific types of insurance(s) required for the project.
7
Client further agrees that decisions concerning types and amounts of insurance are
specific to the project and shall be the product of the Client As such, any and all
insurance requirements made part of Contract Documents prepared by the Engineer are
not to be considered the Engineer's recommendation, and the Client shall make the final
decision regarding insurance requirements.
25. Information Provided by Others: The Engineer shall indicate to the Client
information needed for rendering of the services of this Agreement. The Client shall to the Engineer such information as is available to the Client and the Client's
consultants and contractors, and the Engineer shall be entitled to rely upon the
accuracy and completeness thereof. The Client recognizes that it is impossible for the
Engineer to assure the accuracy, completeness and sufficiency of such information,
either because it is impossible to verify, or because of errors or omissions which may
have occurred in assembling the information the Client is providing. Accordingly, the
Client agrees, to the fullest extent permitted by law, to indemnify and hold the Engineer
and the Engineer's subconsultants harmless from any claim, liability or cost (including
reasonable attorneys' fees and cost of defense) for injury or loss arising or allegedly
arising from errors, omissions or inaccuracies in documents or other information
provided by the Client to the Engineer.
26. Payment: Client shall be invoiced once each month for work performed during the
preceding period. Client agrees to pay each invoice within thirty (30) days of its receipt.
The client further agrees to pay interest on all amounts invoiced and not paid or
objected to for valid cause within said thirty (30) day of eighteen (18)
percent per annum (or the maximum i e est rate permitted under applicable law,
whichever is the lesser) until paid. Client further agrees to pay Engineer's cost of
collection of all amounts due and unpaid after sixty (60) days, including court costs and
reasonable attorney's fees, as well as costs attributed to suspension of services
accordingly and as follows:
Collection Costs. In the event legal action is necessary to enforce the payment
provisions of this Agreement, the Engineer shall be entitled to collect from the
Client any judgement or settlement sums due, reasonable attorneys' fees, court
costs and expenses incurred by the Engineer in connection therewith and, in
addition, the reasonable value of the Engineer's time and expenses spent in
connection with such collection action, computed at the Engineer's prevailing fee
schedule and expense policies.
Suspension of Services. If the Client fails to make payments when due or
otherwise is in breach of this Agreement, the Engineer may suspend
performance of services upon five (5) calendar days' notice to the Client. The
Engineer shall have no liability whatsoever to the Client for any costs or
damages as a _result of such suspension caused by any breach of this
Agreement by the Client. Client will reimburse Engineer for all associated costs
as previously set forth in (Item 4 of) this Agreement.
8
27. When construction observation tasks are part of the service to be performed by the
Engineer under this Agreement, the Client will include the following clause in the
construction contract documents and Client agrees not to modify or delete it:
Kotecki Waiver. Contractor (and any subcontractor into whose subcontract this
clause is incorporated) agrees to assume the entire liability for all personal-injury
claims suffered by its own employees, including without limitation claims under
the Illinois Structural Work Act, asserted by persons allegedly injured on the
Project; waives any limitation of liability defense based upon the Worker's
Compensation Act, court interpretations of said Act or otherwise; and agrees to
indemnify and defend Owner and Engineer and their agents, employees and
consultants (the "Indemnitees ") from and against all such Toss, expense, damage
or injury, including reasonable attorneys' fees, that the Indemnitees may sustain
as a result of such claims, except to the extent that Illinois law prohibits
indemnity for the Indemnitees' own negligence.
28. Jobsite Safety /Supervision & Construction Observation: The Engineer shall neither have
control over or charge of, nor be responsible for, the construction means, methods,
techniques, sequences of procedures, or for safety precautions and programs in
connection with the Work since they are solely the Contractor's rights and
responsibilities. The Client agrees that the Contractor shall supervise and direct the
work efficiently with his /her best skill and attention; and that the Contractor shall be
solely responsible for the means, methods, techniques, sequences and procedures of
construction and safety at the job site. The Client agrees and warrants that this intent
shall be carried out in the Client's contract with the Contractor. The Client further agrees
that the Contractor shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the work; and that the Contractor
shall take all necessary precautions for the safety of, and shall provide the necessary
protection to prevent damage, injury or loss to all employees on the subject site and all
other persons who may be affected thereby. The Engineer shall have no authority to
stop the work of the Contractor or the work of any subcontractor on the project.
When construction observation services are included in the Scope of Services, the
Engineer shall visit the site at intervals appropriate to the stage of the Contractor's
operation, or as otherwise agreed to by the Client and the Engineer to: 1) become
generally familiar with and to keep the Client informed about the progress and quality
of the Work; 2) to strive to bring to the Client's attention defects and deficiencies in the
Work and; 3) to determine in general if the Work is being performed in a manner
indicating that the Work, when fully completed, will be in accordance with the Contract
Documents. However, the Engineer shall not be required to make exhaustive or
continuous on -site inspections to check the quality or quantity of the Work. If the Client
desires more extensive project observation, the Client shall request that such services
be provided by the Engineer as Additional and Supplemental Construction Observation
Services in accordance with the terms of this Agreement.
The Engineer shall not be responsible for any acts or omissions of the Contractor,
subcontractor, any entity performing any portions of the Work, or any agents or
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employees of any of them. The. Engineer does not guarantee the performance of the
Contractor and shall not be responsible for the Contractor's failure to perform its Work
in accordance with the Contract Documents or any applicable laws, codes, rules or
regulations.
When municipal review services are included in the Scope of Services, the Engineer
(acting on behalf of the municipality), when acting in good faith in the discharge of its
duties, shall not thereby render itself liable personally and is, to the maximum extent
permitted by law, relieved from all liability for any damage that may accrue to persons
or property by reason of any act or omission in the discharge of its duties. Any suit
brought against the Engineer which involve the acts or omissions performed by it in the
enforcement of any provisions of the Client's rules, regulation and /or ordinance shall be
defended by the Client until final termination of the proceedings. The Engineer shall be
entitled to all defenses and municipal immunities that are, or would be, available to the
Client.
29. Insurance and Indemnification: The Engineer and the Client understand and agree that
the Client will contractually require the Contractor to defend and indemnify the Engineer
and/or any subconsultants from any claims arising from the Work. The Engineer and the
Client further understand and agree that the Client will contractually require the
Contractor to procure commercial general liability insurance naming the Engineer as an
additional named insured with respect to the work. The Contractor shall provide to the
Client certificates of insurance evidencing that the contractually required insurance
coverage has been procured. However, the Contractor's failure to provide the Client with
the requisite certificates of insurance shall not constitute a waiver of this provision by
the Engineer.
The Client and Engineer waive all rights against each other and against the Contractor
and consultants, agents and employees of each of them for damages to the extent
covered by property insurance during construction. The Client and Engineer each shall
require similar waivers from the Contractor, consultants, agents and persons or entities
awarded separate contracts administered under the Client's own forces.
30. Hazardous Materials: Unless otherwise provided by this Agreement, the Engineer and
Engineer's consultants shall have no responsibility for the discovery, presence,
handling, removal or disposal of or exposure of persons to hazardous materials in any
form at the Project site, including but not limited to asbestos, asbestos products,
polychlorinated biphenyl (PCB) or other toxic substances.
Dec. 11, 2000
PERM Generarrerms &Cond.DEC
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