2021-05-17 - Ordinance 2021-031 - AUTHORIZING A DESIGN CONTRACT WITH CBBEL, INC. (Streambank Stabilization Design)ORDINANCE NO.2021-31
AN ORDINANCE AUTHORIZING A DESIGN CONTRACT WITH CBBEL, INC.
WHEREAS, the Village of Buffalo is a home rule unit pursuant to the Illinois Constitution of 1970; and
WHEREAS, the Village seeks to enter into a Design Contract with CBBEL, Inc. for the design of various
streambank stabilization locations within the Arboretum Golf Course,
NOW THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE
OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS, as follows:
SECTION 1. The foregoing recitals are hereby adopted and incorporated and made a part of this Ordinance
as if fully set forth herein.
SECTION 2. The Village Manager is authorized to enter into a Design Contract with CBBEL, Inc. for design of
various streambank stabilization locations within the Arboretum Golf Course, at a price not to exceed
$23,000.00, pending attorney review.
SECTION 3. If any section, paragraph, clause or provision of this Ordinance shall be held invalid, the invalidity
thereof shall not affect any other provision of this Ordinance.
SECTION 4. This Ordinance shall be in full force and effect from and after its passage and approval and shall
not be codified.
AYES: 5—Stein, Ottenheimer, Johnson, Smith, Pike
NAYES: 0 — None
ABSENT: 1— Weidenfeld
PASSED: May 17, 2021
APPROVED: May 17, 2021
APPROVED:
,/;� a — j A A
everly Sussm age President
ATTEST:
Janet NAQ,4abian, Village Clerk
CHRISTOPHER B. BURKE ENGINEERING, LTD.
9575 W Higgins Road, Suite 600 Rosemont, Illinois 60018-4920 Tel (847) 823-0500 Fax (847) 823-0520
August 28, 2020
Revised September 8, 2020
Village of Buffalo Grove
51 Raupp Blvd.
Buffalo Grove, IL 60089
Attention: Darren Monico, P.E. —Village Engineer
Subject: Professional Services Engineering Proposal to Prepare Streambank
and Stormwater Pond Restoration Plans for The Arboretum Club Golf
Course, Buffalo Grove, Lake County, IL
Dear Mr. Monico:
As requested, Christopher B. Burke Engineering, Ltd. (CBBEL) proposes to prepare
streambank and stormwater pond restoration plans and submit permit applications to
allow for the improvements. This proposal contains our Understanding of Assignment,
Scope of Services and Fee Estimate.
UNDERSTANDING OF ASSIGNMENT
CBBEL understands that Aptakisic Creek (Creek) and the associated on-line
stormwater ponds have active bank erosion and require restoration. We understand
that the Village of Buffalo Grove (Village) has grant funding available to fund the
recommended improvements. Our understanding is that the Village would like CBBEL
to design improvements to address the locations identified as highest priority and then
provide permitting assistance.
Assumptions: Due to the limited budget, CBBEL will prepare basic plans and details
to guide the shoreline restoration. We will rely on Lake County Topo to prepare plan
views identifying the location of shoreline treatments. We will prepare restoration
details to guide the contractors in repair of the shoreline. We will prepare construction
specifications that will be associated with the details. No surveying or detailed
engineering plans will be prepared under this design approach.
SCOPE OF SERVICES
Task 1 — Field Reconnaissance: CBBEL staff will walk the shorelines of the Creek
and ponds and document the severity of erosion. During the reconnaissance,
CBBEL staff will develop design strategies, as well as rate and prioritize the erosion
repairs. This information will be documented in color coded exhibits and a brief
memorandum. Once the memorandum is completed, CBBEL staff will discuss with
Village staff the areas to be included in the design documents.
Task 2 — WetlandJWaters Delineation (Required for Permitting): CBBEL will,
during the field reconnaissance, also complete a waters/wetland delineation of the
project site. CBBEL will gather and review all background information needed for a
waters/wetland delineation, such as county soil and wetland maps. Protocol will follow
the Midwest Regional Supplement for Wetland Delineations. The delineation will
include an on -site investigation of all areas within the project site. Data points
documenting vegetation, soils, and hydrology will be collected in each wetland and
adjacent upland area. The report shall identify and locate regulatory waters/wetlands
and data point locations on a delineation exhibit, provide wetland and soils map
exhibits, photos of each wetland, and U.S. Army Corps of Engineers (USAGE) data
forms.
Wetland/Waters Boundary Confirmation and Jurisdiction: CBBEL staff will
coordinate and attend a wetland/waters boundary confirmation and submit a
request for a jurisdictional determination.
The wetland/waters report will be included with an application package to the
USACE.
Task 3 _— Pre -Final Restoration Details (95%): CBBEL staff will prepare pre -final
restoration details, cost estimate and specifications for the Village and internal review.
The details will be revised based on comments received. The revised plans will be
included in the permit application packages.
Task 4 — USACE Permit Application: CBBEL Environmental Resources Staff will
prepare and submit the USACE Permit Application. This information will include the
required exhibits, specifications, data and project information. This information will
also be compiled and assembled for placement in a permit application package to the
Illinois Environmental Protection Agency.
Task 5 — Watershed Development Permit Application: The Village is a certified
community with respect to the standard provisions of the Watershed Development
Permit (WDP). If it is determined that the project is outside of the regulatory
floodplain, the Village can issue itself the WDP. While the Village may be able to
issue itself the WDP, the SESC plan will likely require Lake County Stormwater
Management Commission (SMC) approval as part of their agreement with the USACE
for SESC reviews. CBBEL staff will prepare and submit the watershed development
permit application package to the Village and the SESC plan to SMC. Prior to
submittal of the application we will work with the Village and review agency to
determine if the proposed improvements can be considered maintenance and
completed outside of the watershed development permit process.
Task 6 — Review Agency Coordination: During the permit review process, we
expect to have meetings with the regulatory agencies, project engineer, and client.
We also expect to have to prepare responses to comments received during the review
process. We have budgeted for attendance at two (2) meetings and included budget
to cover the cost of submittal of two (2) responses to comments. If additional
meetings, or responses to comments, are required they will be billed on a time and
materials basis.
Task 7 — Final Restoration Details 000%): Based on comments received during the
permit review process, final plans, details, cost estimate and specifications will be
prepared. These Final Restoration Plans would be used to support issuance of the
various permits, as well as, for Construction Contract Bidding and Construction. We
have budgeted for one (1) meeting with the Village to discuss the documents.
FEE ESTIMATE
We estimate the costs of the services to be the following:
Task 1
$
1,800
Task 2
$
3,200
Task 3
$
3,500
Task 4
$
3,500 If necessary
Task 5
$
2,500 If necessary
Task 6
$
4,000 If necessary
Task 7
$
3,500
Total of all Tasks
$22,000
Direct Costs
$
1,000
Total
$23,000
Note: Review/Application fees from outside agencies are additional.
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 mileage, blueprints, photocopying, mailing, overnight delivery,
messenger services and report compilation are 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. Please note that any requested meetings
or additional services are not included in the preceding Fee Estimate and will be
billed at the attached hourly rates.
Please sign and
notice to proceed
questions.
Sincerely,
return one copy of this agreement as indication of acceptance and
. Please feel free to contact Jedd Anderson or me if you have any
Michael E. Kerr, PE
President
Encl. Schedule of Charges
General Terms and Conditions
THIS PROPOSAL, SCHEDULE OF CHARGES & GENERAL TERMS &
CONDITIONS ACCEPTED FOR THE VILLAGE OF BUFFALO GROVE:
BY:
TITLE: M04f stan,�cEC
DATE: 2of k1I2o2r
NAP ROPOSALS\ADMI N\2020\BuffaloGrove-ArboretumShoreline Stab ilization Proposal-JMA- DTO_Revised.090820.doe
CHRISTOPHER B. BURKE ENGINEERING, LTD.
STANDARD CHARGES FOR PROFESSIONAL SERVICES
APRIL,2020
Personnel
Principal
Engineer VI
Engineer V
Engineer IV
Engineer III
Engineer 1/11
Survey V
Survey IV
Survey III
Survey II
Survey I
Engineering Technician V
Engineering Technician IV
Engineering Technician III
Engineering Technician 1/II
CAD Manager
Assistant CAD Manager
CAD II
GIS Specialist III
GIS Specialist 1/II
Landscape Architect
Landscape Designer 1/11
Environmental Resource Specialist V
Environmental Resource Specialist IV
Environmental Resource Specialist III
Environmental Resource Specialist 1/11
Environmental Resource Technician
Administrative
Engineering Intern
Information Technician III
Information Technician 1/11
Direct Costs
Outside Copies, Blueprints, Messenger, Delivery Services, Mileage
*Charges include overhead and profit
Charges*
Hr
275
251
208
170
152
121
229
196
172
126
100
198
161
146
68
177
153
135
148
94
170
94
216
170
139
94
114
104
63
130
116
Cost + 12%
Christopher B. Burke Engineering, Ltd. reserves the right to increase these rates and costs by 5%
after December31, 2020.
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 necessaryto 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.
When and if record drawings are to be provided by the Engineer, Client understands that
information used in the preparation of record drawings is provided by others and
Engineer is not responsible for accuracy, completeness, nor sufficiency of such
information. Client also understands that the level of detail illustrated by record drawings
will generally be the same as the level of detail illustrated by the design drawing used for
project construction. If additional detail is requested by the Client to be included on the
record drawings, then the Client understands and agrees that the Engineer will be due
additional compensation for additional services.
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
2
extent permitted by law, to hold harmless and indemnify the Engineer from and against
all claims, liabilities, losses, damages, and costs, including but not limited to attorney's
fees, arising therefrom or in connection therewith.
The Client recognizes that changes or modifications to the Engineer's instruments of
professional service introduced by anyone other than the Engineer may result in adverse
consequences which the Engineer can neither predict nor control. Therefore, and in
consideration of the Engineer's agreement to deliver its instruments of professional
service in machine readable form, the Client agrees, to the fullest extent permitted by
law, to hold harmless and indemnify the Engineer from and against all claims, liabilities,
losses, damages, and costs, including but not limited to attorney's fees, arising out of or
in any way connected with the modification, misinterpretation, misuse, or, reuse by others
of the machine readable information and data provided by the Engineer under this
Agreement. The foregoing indemnification applies, without limitation, to any use of the
Project Documentation on other projects, for additions to this Project, or for completion of
this Project by others, excepting only such use as may be authorized, in writing, by the
Engineer.
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. Indemnification: Engineer shall indemnify and hold harmless Client up to the amount of
this contract fee (for services) from loss or expense, including reasonable attorneys fees
for claims for personal injury (including death) or property damage to the extent caused
by 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 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.
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 (if arbitration is agreed upon by the
parties of this Agreement) or the institution of legal or equitable proceedings by either
parry. If such matter relates to or is the subject of a lien arising out of the Engineer's
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 Association currently in effect. Requests for mediation shall be filed in writing
with the other parry 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".
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 promptlyto 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 parry shall hereafter furnish to
the other parry 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 attorneys 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.
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 as additional insureds 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 bythe 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 to the
fullest extent permitted by law, agrees to indemnify and hold harmless and
defend Owner and Engineer and 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. The Owner and Engineer are designated and
recognized as explicit third party beneficiaries of the Kotecki Waiver within the
general contract and all subcontracts entered into in furtherance of the general
contract.
28. Job Site 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
employees of any of them. The Engineer does not guarantee the performance of the
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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 bythe
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/Pollutants: 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/pollutants in any form at the Project site, including but not limited to
mold/mildew, asbestos, asbestos products, polychlorinated biphenyl (PCB) or other
toxic/hazardous/pollutant type substances.
Furthermore, Client understands that the presence of mold/mildew and the like are
results of prolonged or repeated exposure to moisture and the lack of corrective action.
Client also understands that corrective action is a operation, maintenance and repair
activity for which the Engineer is not responsible.
June 13, 2005
RNProposals\Terms and Conditions\GT&C 2005.061305.doc
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