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O-42-99 04/26/1999ORDINANCE 0- 44:2 --11 AN ORDINANCE AUTHORIZING APPROVAL OF AN ENGINEERING AGREEMENT WITH TRANSYSTEMS CORPORATION WHEREAS, the Village of Lemont seeks to continue to require consulting engineering services related to construction inspection and field work; and WHEREAS, the Village seeks to utilize the firm of TranSystems Corporation for such engineering services; and WHEREAS, the Village and TranSytems Corporation 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 attached Engineering Agreement dated April 26, 1999 is 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 26th day of April , 1999. AYES NAYS PASSED ABSENT Barbara Buschman Keith Latz Connie Markiewicz Rick Rimbo Ralph Schobert Mary Studebaker Approved by me this 26th Attest: CHARLENE SMOLLEN, Village Clerk ril , 1999. CHARLENE SMOLLEN, Village Clerk ARD KWASNESKI, Village President Attest to F6rm OHN ANTONOPOULOS, Villa?' Attorney VILLAGE OF LEMONT CONTRACTED PERSONNEL SERVICES TRANSYSTEMS CORPORATION GENERAL TERMS AND CONDITIONS I. General Terms and Conditions 1. Relationship Between Engineer and Client: TranSystems Corporation (Engineer) shall serve as Client's professional engineering 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. 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 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 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 ten (10) working 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. 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. 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 efforts to comply with those laws, codes, ordinance and regulations which are in effect as of the date of this Agreement. G: \BUS DE V \LEMON7\RE -1 YR99 \CONT RACT. DOC 2 10. Indemnification: Engineer shall indemnify and hold harmless Client up to the amount available professional liability insurance limits, as stated on the attached certificate of insurance, 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 (to the extent permitted and authorized by its insurance coverage) 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. To the fullest extent permitted by law, the Engineer hereby agrees to defend, indemnify and hold harmless the client, its officials, agents and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, cost and expenses, which may in any way accrue against the member, its officials, agents and employees, arising in whole or in part or in consequence of negligent performance of this work by the Engineer, its employees or subconsultants, or which may in any way result therefore, except that arising out of the sole legal cause of the member, its agents or employees, the Engineer shall, at its own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefore or incurred in connections therewith, and, of any judgment shall be rendered against the member, its officials, agents and employees, in any such action, the Engineer shall, at its own expense, satisfy and discharge the same, not to exceed the total Engineer's available professional liability insurance limits as stated on the attached certificate of insurance. 11. Blank 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. G:\BUSDE V U.EMONT RE -1 YR99 \CONTRACT. DOC 3 13. Successors and Assigns: The terms of this Agreement shall be binding upon and issue 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 waiver 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 incorporated 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 other 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 or governmental agencies. 19. Subcontracts: Engineer may subcontract portions of the work, but each subcontractor must be approved by Client in writing. Cr.\ BUSDEVUEMONITR1 r1YR99 \CONTRACT.DOC 4 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 performs 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 an 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 available professional liability insurance limits as stated on the attached certificate of insurance. Such causes included but are not limited to the Engineer's negligence, errors, omissions, strict liability or breach of contract. It is however alleged or arising, unless other wise prohibited by law. 24. 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. 25. When construction observation tasks are part of the service to be performed by the Engineer under this Contract, the Owner will include the following clause in the construction contract documents and Owner agrees not to modify or delete it: G\BUSDEV\ EMONT\R&1YR99 \CONIRACT.DOC 5 Kotecki Waiver: Contractor (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 "Indemnities ") from and against all such loss, expense, damage or injury, including reasonable attorney's fees, that the Indemnities may sustain as a result of such claims, except to the extent that Illinois law prohibits indemnity for the Indemnitee's own negligence. II. Project Staff TranSystems Corporation shall assign Richard A. Young, an engineer to perform the function of Contracted Personnel as described in the Agreement. If it is determined by either party to be necessary or beneficial to change personnel they shall notify the other party with sufficient notice to allow for transition. The additional expense incurred by the training of the new personnel, to the level approved by the client, shall be incurred by the party requesting the change. III. Fee for Engineering Services The Engineer will perform the work with the personnel described herein for a fee of $68.00 per hour. This includes labor, payroll overhead, payroll burden, fringe costs, profit. This fee will also include the cost of a vehicle, cellular telephone, pager and small tools (level, tapes, etc.) necessary for performance of this contract notification. G: \BU S DE V \LEMONT\RE -1 YR99 \CONT RACT. DOC 6 IV. Duration of Agreement This Agreement will remain in effect for a period of one (1) year from the date of execution. At that time it may be canceled, renewed or revised based on the needs of both parties. For the Village of Lemont: Approved t date: April 26, 1999 d A. Kwasneski Title: Village President Attest: Charlene Smollen Title: Village Clerk G:\BUSDEV\LEMONT\RE -1 YR99 \CONTRACT.DOC 7 For TranSystems Corporation Vice President Richar. IJ ors hes Vic President ACORD CERTIFICATE OF .LIABILITY �+ INSURANCE 10/15/99 DATE(MM /DD/YYI 04/29/99 POLICY NUMBER PRODUCER 71 Lockton Companies P.O. Box 419351 Kansas City Mo 64141 -6351 (913) 676-9000 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURED 16141 TRANSYSTEMS CORPORATION 1051 PERIMETER DR. SUITE 1025 SCHAUMBURG IL 60173-5058 I INSURER A: CONT. CAS.(VICTOR 0.SCHINNERER) INSURER B: INSURER C: INSURER D: INSURER E: COVERAGES 23B THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MMLDDYI POLICY EXPIRATION DATE (MM /DD/YYI LIMBS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY NOT APPLICABLE EACH OCCURRENCE 8 XXXXXXXXXX FIRE DAMAGE (Any one fire) $ XXXXXXXXXX CLAIMS MADE OCCUR MED EXP (Any one person) 8 XXXXXXXXXX PERSONAL & ADV INJURY 8 XXXXXXXXXX GENERAL AGGREGATE 8 XXXXXXXXXX GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG 8 XXXXXXXXXX POLICY PRO- LOC JECT AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS NOT APPLICABLE COMBINED SINGLE LIMIT (Ea accident) 8 XXXXXXXXXXX BODILY INJURY (Per person/ 8 XXXXXXXXXXX BODILY INJURY (Per accident) 8 XXXXXXXXXXX PROPERTY DAMAGE (Per accident) 8 XXXXXXXXXXX GARAGE LIABILITY ANY AUTO NOT APPLICABLE AUTO ONLY - EA ACCIDENT 8 OTHER THAN EA ACC 8 AUTO ONLY: AGG 8 EXCESS LIABILITY NOT APPLICABLE EACH OCCURRENCE 8 XXXXXXXXXXX OCCUR CLAIMS MADE AGGREGATE 8 XXXXXXXXXXX DEDUCTIBLE RETENTION 8 8 8 8 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY NOT APPLICABLE WC STATU- OTH- TORY LIMITS ER E.L. EACH ACCIDENT 8 XXXXXXXXXXX E.L. DISEASE - EA EMPLOYEE 8 XXXXXXXXXXX E.L. DISEASE - POLICY LIMIT 8 XXXXXXXXXXX A OTHER PROFESSIONAL LIABILITY AEN13- 333 -10 -51 10/15/98 10/15/99 $2,000,000. EACH CLAIM & IN THE ANNUAL AGG. FOR ALL PROJECTS. DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES /EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS RE: CONTRACTED PERSONNEL SERVICES CERTIFICATE HOLDER ADDITIONAL INSURED; INSURER LETTER: CANCELLATION 369537 VILLAGE OF LEMONT 418 MAIN STREET LEMONT IL 60439 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ACORD 25 -S (7/97) A ORD CORPORATION 1988