R-56-00 05/22/00RESOLUTION
RESOLUTION AUTHORIZING APPROVAL OF AN ENGINEERING
AGREEMENT WITH CHRISTOPHER B. BURKE ENGINEERING, LTD.
IN CONJUNCTION WITH THE
LEMONT DRAINAGE TUNNEL REPAIR PROJECT
WHEREAS, the Village of Lemont requires engineering services related to the Lemont
Drainage Tunnel Repair 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 supplemental 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,
ILLLNOIS, on this 22nd day of May , 2000.
John Benik
Debby Blatzer
Keith Latz
Connie Markiewicz
Rick Rimbo
Mary Studebaker
AYES NAYS PASSED ABSENT
V
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Y. .1( fiffr".i
RLENE SMOLLEN, Village Clerk
Approved by me this 22nd d of May , 2000.
Attest:
Pr sident
//1, 1..
ARLENE SMOLLEN, Village Cler
Approved to form=
/'JOHN ANTONOPOULOS, ge Attorney
CHRISTOPHER B. BURKE ENGINEERING, LTD.
9575 West Higgins Road • Suite 600 • Rosemont, Illinois 60018 -4920 • TEL (847) 823 -0500 • FAX (847) 823 -0520
May 4, 2000
Village of Lemont
Public Works Department
14574 127th Street
Lemont, IL 60439
Attention: Mr. Dan Fielding, Director of Public Works
Subject: Proposal for Professional Engineering Services Related to the
Rehabilitation of the Lemont Drainage Tunnel
Dear Dan:
At your request, Christopher B. Burke Engineering, Ltd. (CBBEL) is providing this
proposal to provide engineering services related to the rehabilitation of the Lemont
Drainage Tunnel. Portions of the tunnel were damaged in the flood of 1996 and the
portion of the tunnel closest to the I &M Canal was repaired later in 1996. This
proposal covers the rehabilitation of the tunnel sections that were not repaired in
1996. Included below is our Understanding of Assignment, Scope of Services and
Estimate of Fee.
UNDERSTANDING OF ASSIGNMENT
CBBEL will visually inspect and evaluate the condition of the drainage tunnel.
Based on this inspection we will prepare specifications and bid proposals for the
rehabilitation of the critical sections of the tunnel.
Because the deadline for FEMA reimbursement is June 25, 2000, we will divide the
tunnel repairs into two separate projects in order to complete all or as much of the
work as possible by the deadline. As part of this proposal, CBBEL will also
investigate and apply for FEMA funding for work that has already been completed.
Although FEMA has indicated the chances of extending the completion date are
"very slim ", we will attempt to receive an extension.
SCOPE OF SERVICES
We have broken down our scope of services into a series of tasks described below:
Task 1 — Tunnel Inspection: CBBEL will perform a visual inspection of the tunnel in
order to assess its condition. The repair work will be itemized and quantified in order
to prepare bid proposals in Task 2.
Task 2 — Preparation of Specifications and Bid Proposals: CBBEL will prepare
technical specifications and bid proposals to be used for bidding and constructing
the work. Due to time constraints, detailed plans will not be prepared, however, a
pre -bid meeting with the Contractors will be held to assist the Contractors in bidding
the work.
The following is a tentative design /construction schedule:
Tunnel Inspection April 28, 2000 — May 1, 2000
Pre -Bid Meeting May 2, 2000
Complete Bidding Documents May 3, 2000
Receive Bids May 8, 2000
Substantial Completion of Construction June 25, 2000
Submit to FEMA for Reimbursement June 30, 2000
Task 3 — Construction Observation: CBBEL will perform construction observation
services for the duration of the two projects. An on -site resident engineer will be
present during the hours the Contractor is working. We will coordinate with the
Contractor, provide interpretation of the bid documents and administer the
construction contract.
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).
We propose to use a geotechnical consultant to complete all required material
testing.
Task 4 — FEMA Funding Applications: As well as applying to FEMA for
reimbursement for this project, CBBEL will apply for reimbursement for flood projects
previously completed. CBBEL will determine which projects have been fully
reimbursed and which projects are eligible for additional reimbursement. As
mentioned previously, we will also apply for an extension to the June 25, 2000
FEMA deadline for the tunnel projects.
ESTIMATE OF FEE
We estimate the following fee to complete the scope of services outlined above:
Task 1 — Tunnel Inspection
2 person crew x $85/hr x 24 hrs. =
$ 4,080
Subtotal =
$4,080
Task 2 — Preparation of Specifications and Bid Proposals
Engineer V @ $ 95 /hr. x 24 hrs. =
$ 2,280
Engineer IV @ $ 85 /hr. x 24 hrs. =
$ 2,040
Engineer Technician II @ $ 80 /hr. x 4 hrs. =
$ 320
Word Processing @ $ 60 /hr. x 8 hrs. =
$ 480
Subtotal =
$5,120
Task 3 — Construction Observation (Both Projects)
Engineer V @ $ 95 /hr. x 24 hrs. =
$ 2,280
Engineer IV @ $ 85 /hr. x 420 hrs. =
$35,700
Testing (by others) @
$ 4,000
Subtotal =
$41,980
Task 4 — FEMA Funding Applications
Senior Engineer @ $130 /hr. x 40 hrs. =
$ 5,200
Engineer IV @ $ 85 /hr. x 10 hrs. =
$ 850
Subtotal =
$6, 050
TOTAL
$57,230
We will bill you at the hourly rates specified on the attached Schedule of Charges
and establish our contract in accordance with the attached General Terms and
Conditions. Direct costs for blueprints, photocopying, mailing, overnight delivery,
messenger services and report compilation are not included in the Fee Estimate.
These General Terms and Conditions are expressly incorporated into and are an
integral part of this contract for professional services. It should be emphasized that
any requested meetings or additional services are not included in the preceding Fee
Estimate and will be billed at the attached hourly rates.
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Please sign and return one copy of this agreement as an indication of acceptance
and notice to proceed. Please feel free to contact us anytime.
Very truly yours,
Christophe B. Burke, Ph.D., P.E.
President
JGS/hmc
cc: Steve May, Village Engineer
Encl. Schedule of Charges
General Terms and Conditions
THIS PROPOSAL, SC II LE OF CHARGES AND GENERAL TERMS AND
CONDITIONS ACCEPT ► OR THE VILLAGE OF LEMONT
BY: Adi
TITLE:
DATE:
.•.drIPINIMIllf
PROPOSALS LEMONT.504
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CHRISTOPHER B. BURKE ENGINEERING, LTD.
STANDARD CHARGES FOR PROFESSIONAL SERVICES
JANUARY, 2000
Charges*
Personnel ($ /Hr)
Principal 150
Senior Engineer 130
Engineer V 95
Engineer IV 85
Engineer III 80
Engineer II 65
Land Surveying Manager 95
Senior Project Surveyor 80
Project Surveyor 70
Staff Surveyor 55
Environmental Planner 65
Junior Engineer 55
Senior Engineering Technician 83
Engineering Technician II 80
Engineering Technician I 65
Senior Environmental Resources Specialist 80
Environmental Resource Specialist III 73
Environmental Resource Specialist II 60
Environmental Resource Technician 55
Accounting 70
Word Processing /Secretary 60
Direct Costs
Outside Copies, Blueprints, Messenger,
Delivery Services, Mileage
* Charges include overhead and profit
Cost + 10%
Christopher B. Burke Engineering, Ltd. reserves the right to increase these rates and
costs by 5% after December 31, 2000.
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.
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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
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against all claims, liabilities, losses, damages, and costs, including but not limited to
attorney's fees, arising therefrom or in connection therewith.
The Client recognizes that changes or modifications to the Engineer's instruments
of professional service introduced by anyone other than the Engineer may result in
adverse consequences which the Engineer can neither predict nor control.
Therefore, and in consideration of the Engineer's agreement to deliver its instruments
of professional service in machine readable form, the Client agrees, to the fullest
extent permitted by law, to hold harmless and indemnify the Engineer from and
against all claims, liabilities, losses, damages, and costs, including but not limited to
attorney's fees, arising out of or in any way connected with the modification,
misinterpretation, misuse, or reuse by others of the machine readable information
and data provided by the Engineer under this Agreement. The foregoing
indemnification applies, without limitation, to any use of the Project Documentation
on other projects, for additions to this Project, or for completion of this Project by
others, excepting only such use as may be authorized, in writing, by the Engineer.
7. Reuse of Documents: All Project Documents including but not limited to reports,
opinions of probable costs, drawings and specifications furnished by Engineer
pursuant to this Agreement are intended for use on the Project only. They cannot
be used by Client or others on extensions of the Project or any other project. Any
reuse, without specific written verification or adaptation by Engineer, shall be at
Client's sole risk, and Client shall indemnify and hold harmless Engineer from all
claims, damages, losses, and expenses including attorney's fees arising out of or
resulting therefrom.
The Engineer shall have the right to include representations of the design of the
Project, including photographs of the exterior and interior, among the Engineer's
promotional and professional materials. The Engineer's materials shall not include
the Client's confidential and proprietary information if the Client has previously
advised the Engineer in writing of the specific information considered by the Client
to be confidential and proprietary.
8. Standard of Practice: The Engineer will strive to conduct services under this
agreement in a manner consistent with that level of care and skill ordinarily exercised
by members of the profession currently practicing in the same locality under similar
conditions as of the date of this Agreement.
9. Compliance With Laws: The Engineer will strive to exercise usual and customary
professional care in his /her efforts to comply with those laws, codes, ordinance and
regulations which are in effect as of the date of this Agreement.
With specific respect to prescribed requirements of the Americans with Disabilities
Act of 1990 or certified state or local accessibility regulations (ADA), Client
understands ADA is a civil rights legislation and that interpretation of ADA is a legal
issue and not a design issue and, accordingly, retention of legal counsel (by Client)
for purposes of interpretation is advisable. As such and with respect to ADA, Client
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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.
Further to the law and code compliance, the Client understands that the Engineer will
strive to provide designs in accordance with the prevailing Standards of Practice as
previously set forth, but that the Engineer does not warrant that any reviewing
agency having jurisdiction will not for its own purposes comment, request changes
and /or additions to such designs. In the event such design requests are made by a
reviewing agency, but which do not exist in the form of a written regulation, ordinance
or other similar document as published by the reviewing agency, then such design
changes (at substantial variance from the intended design developed by the
Engineer), if effected and incorporated into the project documents by the Engineer,
shall be considered as Supplementary Task(s) to the Engineer's Scope of Service
and compensated for accordingly.
10. Indemnification: Engineer shall indemnify and hold harmless Client up to the amount
of this contract fee (for services) from loss or expense, including reasonable
attorney's fees for claims for personal injury (including death) or property damage
arising out of the sole negligent act, error or omission of Engineer.
Client shall indemnify and hold harmless Engineer under this Agreement, from loss
or expense, including reasonable attorney's fees, for claims for personal injuries
(including death) or property damage arising out of the sole negligent act, error
omission of Client.
In the event of joint or concurrent negligence of Engineer and Client, each shall bear
that portion of the loss or expense that its share of the joint or concurrent negligence
bears to the total negligence (including that of third parties) which caused the
personal injury or property damage.
Engineer shall not be liable for special, incidental or consequential damages,
including, but not limited to loss of profits, revenue, use of capital, claims of
customers, cost of purchased or replacement power, or for any other loss of any
nature, whether based on contract, tort, negligence, strict liability or otherwise, by
reasons of the services rendered under this Agreement.
11. Opinions of Probable Cost: Since Engineer has no control over the cost of labor,
materials or equipment, or over the Contractor(s) method of determining process, or
over competitive bidding or market conditions, his /her opinions of probable Project
Construction Cost provided for herein are to be made on the basis of his /her
experience and qualifications and represent his /her judgement as a design
professional familiar with the construction industry, but Engineer cannot and does not
guarantee that proposal, bids or the Construction Cost will not vary from opinions of
probable construction cost prepared by him /her. If prior to the Bidding or Negotiating
Phase, Client wishes greater accuracy as to the Construction Cost, the Client shall
employ an independent cost estimator Consultant for the purpose of obtaining a
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second construction cost opinion independent from Engineer.
12. Governing Law: 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. Claims, disputes or other matters in questions between the
parties to this Agreement arising out of or relating to this Agreement or breach
thereof, shall be subject to and decided by arbitration in accordance with the
construction industry arbitration rules of the American Arbitration Association
currently in effect, but only in the case where a mutual resolution cannot be reached.
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 ".
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.
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19. Subcontracts: Engineer may subcontract portions of the work, but each
subcontractor must be approved by Client in writing.
20. Access and Permits: Client shall arrange for Engineer to enter upon public and
private property and obtain all necessary approvals and permits required from all
governmental authorities having jurisdiction over the Project. Client shall pay costs
(including Engineer's employee salaries, overhead and fee) incident to any effort by
Engineer toward assisting Client in such access, permits or approvals, if Engineer
perform such services.
21. Designation of Authorized Representative: Each party (to this Agreement) shall
designate one or more persons to act with authority in its behalf in respect to
appropriate aspects of the Project. The persons designated shall review and
respond promptly to all communications received from the other party.
22. Notices: Any notice or designation required to be given to either party hereto shall
be in writing, and unless receipt of such notice is expressly required by the terms
hereof shall be deemed to be effectively served when deposited in the mail with
sufficient first class postage affixed, and addressed to the party to whom such notice
is directed at such party's place of business or such other address as either party
shall hereafter furnish to the other party by written notice as herein provided.
23. Limit of Liability: The Client and the Engineer have discussed the risks, rewards, and
benefits of the project and the Engineer's total fee for services. In recognition of the
relative risks and benefits of the Project to both the Client and the Engineer, the risks
have been allocated such that the Client agrees that to the fullest extent permitted
by law, the Engineer's total aggregate liability to the Client for any and all injuries,
claims, costs, losses, expenses, damages of any nature whatsoever or claim
expenses arising out of this Agreement from any cause or causes, including
attorney's fees and costs, and expert witness fees and costs, shall not exceed the
total Engineer's fee for professional engineering services rendered on this project as
made part of this Agreement. Such causes included but are not limited to the
Engineer's negligence, errors, omissions, strict liability or breach of contract. It is
intended that this limitation apply to any and all liability or cause of action however
alleged or arising, unless otherwise prohibited by law.
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.
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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 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. Client further agrees that decisions concerning types and
amounts of insurance are specific to the project and shall be the product of the
Client. As such, any and all insurance requirements made part of Contract
Documents prepared by the Engineer are not to be considered the Engineer's
recommendation, and the Client shall make the final decision regarding insurance
requirements.
25. Information Provided by Others: The Engineer shall indicate to the Client the
information needed for rendering of the services of this Agreement. The Client shall
provide to the Engineer such information as is available to the Client and the Client's
consultants and contractors, and the Engineer shall be entitled to rely upon the
accuracy and completeness thereof. The Client recognizes that it is impossible for
the Engineer to assure the accuracy, completeness and sufficiency of such
information, either because it is impossible to verify, or because of errors or
omissions which may have occurred in assembling the information the Client is
providing. Accordingly, the Client agrees, to the fullest extent permitted by law, to
indemnify and hold the Engineer and the Engineer's subconsultants harmless from
any claim, liability or cost (including reasonable attorneys' fees and cost of defense)
for injury or loss arising or allegedly arising from errors, omissions or inaccuracies in
documents or other information provided by the Client to the Engineer.
26. Payment: Client shall be invoiced once each month for work performed during the
preceding period. Client agrees to pay each invoice within thirty (30) days of its
receipt. The client further agrees to pay interest on all amounts invoiced and not paid
or objected to for valid cause within said thirty (30) day period at the rate of eighteen
(18) percent per annum (or the maximum interest rate permitted under applicable
law, whichever is the lesser) until paid. Client further agrees to pay Engineer's cost
of collection of all amounts due and unpaid after sixty (60) days, including court costs
and reasonable attorney's fees, as well as costs attributed to suspension of services
accordingly and as follows:
Collection Costs. In the event legal action is necessary to enforce the
payment provisions of this Agreement, the Engineer shall be entitled to collect
from the Client any judgement or settlement sums due, reasonable attorneys'
fees, court costs and expenses incurred by the Engineer in connection
therewith and, in addition, the reasonable value of the Engineer's time and
expenses spent in connection with such collection action, computed at the
Engineer's prevailing fee schedule and expense policies.
Suspension of Services. If the Client fails to make payments when due or
otherwise is in breach of this Agreement, the Engineer may suspend
performance of services upon five (5) calendar days' notice to the Client. The
Engineer shall have no liability whatsoever to the Client for any costs or
damages as a result of such suspension caused by any breach of this
Agreement by the Client. Client will reimburse Engineer for all associated
costs as previously set forth in (Item 4 of) this Agreement.
27. When construction observation tasks are part of the service to be performed by the
Engineer under this Agreement, the Client will include the following clause in the
construction contract documents and Client agrees not to modify or delete it:
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
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their agents, employees and consultants (the "Indemnitees ") from and against
all such loss, expense, damage or injury, including reasonable attorneys'
fees, that the Indemnitees may sustain as a result of such claims, except to
the extent that Illinois law prohibits indemnity for the Indemnitees' own
negligence.
28. Jobsite Safetv /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
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
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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.
July, 1999
PJB PERM 99TERM.CON
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