===== PDF PAGE 18 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO INFRASTRUCTURE COMMITTEE AGENDA ITEM SUMMARY ITEM TITLE: AGENDA ITEM NUMBER: 4' E. Resolution No. 19-R-0058 - Contract Award - Christopher 8. Burke Engineering, Ltd. for Natural Areas Maintenance COMMITTEE AGENDA DATE: November 7, 2019 and Monitoring Services Related to the 1350 W. COUNCIL AGENDA DATE: November 18, 2019 Hawthorne Lane Salt Storage Facility Project from November 2019 Through Fiscal Year 2022 STAFF REVIEW: Robert E. Flatter, P.E., Director of Public Works SIGNATUR~~;,:::;.--c------­ APPROVED BY CITY ADMINISTRATOR: Michael L. Guttman SIGNATURE" "./ ----------~ ITEM SUMMARY: On Monday, December 17, 2018, City Council approved Resolution No. 18-R-0103 authorizing the Mayor to execute a professional services contract with Burke, LLC of Rosemont, Illinois (an affiliate of Christopher B. Burke Engineering, Ltd.), for Design-Build services related to the 1350 W. Hawthorne Lane Salt Storage Facility Project, for an amount not to exceed $2,834,320.00. Using various qualified sub-contractors, Burke, LLC proposal included construction of a 70'x120' barn style salt storage building capable of storing approximately 6,000 tons of rock salt material, along with required site grading, parking lot improvements, utilities, fire alarm system, security fencing, site/building lighting, and assistance with obtaining required construction permits. Burke's proposal/contract also included $25,000.00 for anticipated wetland banking and maintenance services. A stormwater management permit, and wetland banking and maintenance services, were anticipated to be required from DuPage County due to unavoidable impacts of special management areas (i.e., wetland areas). Unfortunately, DuPage County's requirements, as a condition of its issuance of a Stormwater Management Permit issued for the project, are more substantial than originally anticipated. DuPage County is requiring restoration, enhancement, maintenance, prescribed burns management, monitoring, and annual reports, for a period of three (3) years, of the natural areas associated with the 1) the existing northwest compensatory storage basin constructed for the Water Treatment Plant, 2) the southeast wetland buffer enhancement area associated with construction of the salt storage facility, and 3) the newly constructed north-central basin constructed for the salt storage facility. Given the fact that DuPage County's permit requirements are more than anticipated, at the City's request, Christopher B. Burke Engineering, Ltd. (CBBEL) has provided staff with a maintenance and monitoring services proposal in the amount of $42,590.00 (see attached proposal). Yearly anticipated fee estimates are further broken out per year as follows (please see Page 4 of CBBEL's proposal for completed fee estimate and task schedule): 2019 =$ 3,210.00 2020 = $16,260.00 2021 =$ 9,420.00 2022 =$13,700.00 If CBBEL's contract is approved, Burke, LLC will not charge the City the $25,000.00 for the original anticipated wetland banking and maintenance services fee. ===== PDF PAGE 19 ===== [Extraction: embedded PDF text] CITY OF WEST CHICAGO ACTIONS PROPOSED: Approve Resolution No. 19-R-0058 authorizing the Mayor to execute a professional services contract with Christopher B. Burke Engineering, Ltd., in an amount not to exceed $42,590.00, for natural areas maintenance and monitoring services related to the 1350 W. Hawthorne Lane Salt Storage Facility Project from November 2019 through Fiscal Year 2022. COMMITTEE RECOMMENDATION: ===== PDF PAGE 20 ===== [Extraction: embedded PDF text] RESOLUTION NO. 19-R-0058 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A PROFESSIONAL SERVICES CONTRACT WITH CHRISTOPHER B. BURKE ENGINEERING, LTD. FOR NATURAL AREAS WETLAND MAINTENANCE AND MONITORING SERVICES RELATED TO THE 1350 W. HAWTHORNE LANE SALT STORAGE FACILITY PROJECT FROM NOVEMBER 2019 THROUGH FISCAL YEAR 2022 BE IT RESOLVED by the City Council of the City of West Chicago, in regular session assembled, that the Mayor is hereby authorized to execute a Contract for Professional Services related to Natural Areas Maintenance and Monitoring Services related to the 1350 W. Hawthorne Lane Salt Storage Facility Project, from November 2019 through Fiscal Year 2022, between Christopher B. Burke Engineering, Ltd. and the City of West Chicago, for an amount not to exceed $42,590.00, in substantially the form attached hereto and incorporated herein as Exhibit "A". APPROVED this 18th day of November 2019. AYES: NAYES: ABSTAIN: ABSENT: Mayor Ruben Pineda ATTEST: City Clerk Nancy M. Smith ===== PDF PAGE 21 ===== [Extraction: embedded PDF text] CHRISTOPHER B. BURKE ENGINEERING, LTD. 9575 West Higgins Road Suite 600 Rosemont, Illinois 60018 TEL (847) 823-0500 FAX (847) 823-0520 September 30, 2019 City of West Chicago 475 Main Street West Chicago, IL 60185 Attention: Robert Flatter, PE, Director of Public Works Subject: Proposal to Provide Professional Maintenance and Monitoring Services for the West Chicago Salt Facility Natural Areas at the Hawthorne Lane Public Works Facility, West Chicago, DuPage County, Illinois (SM No. 2018-0047 I Tracking No. 18-34-0006 / T58230) (CBBEL Project No. 010150.00132) Dear Mr. Flatter: Christopher B. Burke Engineering, Ltd. (CBBEL) is pleased to provide this proposal for maintenance and monitoring (M&M) of the natural areas at the subject site. Environmental Resources Department staff visited the site on June 14, 2019 in order to prepare the scope of services and fee estimate for the natural areas including: • the existing northwest compensatory storage basin (NW comp basin}, • the southeast wetland buffer enhancement area (SE buffer), and • the newly constructed north-central basin (NC basin) within the West Chicago salt facility project. Proposed tasks will assist the City of West Chicago in complying with the requirements of DuPage County Stormwater Management Permit (SM) No. SM2018-0047 I Waiver Community Tracking No. 18-34-0006 I T58230. This proposal includes three years of maintenance and monitoring services, restoration seeding within the NW comp basin, vegetation monitoring assessment, weed control, supplemental seeding, prescribed burning, and preparation of annual summary reports. The goal of this work is to help the City meet the requirements of the Management and Monitoring Plan, Wetland Buffer Impact and Enhancement Area and Naturalized Compensatory Storage Basin (M&M Plan), prepared by CBBEL, dated (revised) January 24, 2019, which also contains performance standards for the NW comp basin from 2002. N:\PROPOSALS\ADMIN\2019\West Chi Salt Facility M&M-ENJ-093019.doc ===== PDF PAGE 22 ===== [Extraction: embedded PDF text] SCOPE OF SERVICES Please note that this proposal covers maintenance and monitoring services for both the wetland buffer enhancement and the NW comp basin, as well as restoration re-seeding of the NW comp basin. This proposal scope does not include selective clearing of woody vegetation within the SE buffer, which will be completed by Emerald Site Services, LLC (Emerald) under a separate contract, nor planting installation within the SE buffer and NC basin. The completion of the following Scope of Services is the responsibility of CBBEL. Task 1 - Restoration Seeding: This task includes restoration of areas within the NW comp basin that are dominated by non-native plant species. Restoration includes weed control targeting undesirable species (see Task 2), site preparation prescribed burning (Task 6 below), and native seed installation in basin bottom and slope areas totaling approximately 1.0 acre. This task does not include erosion control blanket because we expect that duff from herbicided/burned vegetation will provide sufficient erosion protection. Task 2 - Site Monitoring and Weed Control: CBBEL's Environmental Resources Department staff will monitor the project area to assess the overall condition of native vegetation plantings, including invasive weed growth. This task includes two weed control visits for the NW comp basin in 2019, and three visits of all areas during the growing season of each year, 2020-2022 (April-October), to monitor and provide weed control. Spot-mowing and spot-herbiciding methods will be used to help reduce the coverage of invasive weed species and promote the establishment of seeded native species. Weeds including purple loosestrife, cattail, reed canary grass, common reed, thistles, teasel, clovers, crown vetch, sandbar willow, and other aggressive undesirable species will be targeted for control. Weed control includes herbiciding of undesirable woody re-sprouts, shrubs and tree saplings/seedlings growing within the native planting areas. Weed control will be completed by Illinois Certified Pesticide Applicators using herbicides labeled for control of target weeds, during susceptible periods of weed life cycles to effectively reduce their coverage. We will also observe stormwater structure function and remove minor amounts of trash and debris from structures. This task includes observation of soil stability, erosion, and recommendations for remediation. We will provide e-mail updates of monitoring observations and recommendations to you following visits. Task 3-Supplemental Seed Installation: CBBEL will provide supplemental seeding within native planting areas in 2021 and 2022. We will install supplemental seed of competitive species from the native seed lists in the plans. We will annually install up to 0.3 acre of native seed mix in sparsely vegetated areas and weedy areas to help promote the establishment of the desired native plants and compete against weed species. We will install seed by hand and rake/harrow into the soil in attempting to achieve good seed to soil contact for best germination. Task 4- Vegetation Monitoring Assessment: A vegetation assessment will be completed in each year 2020-2022 to describe the quality and coverage of the native planting areas. This task will include a meander survey of each native planting area in attempting to meet DCSM N:IPROPOSALSIADMIN\2019\West Chi Salt Facility M&M-ENJ-093019.doc 2 ===== PDF PAGE 23 ===== [Extraction: embedded PDF text] Performance Standards for vegetative establishment, as required in the SM permit. The assessment will also include an evaluation of tree plantings in accordance with project performance standards. Task 5-Annual Report: Each years' natural area maintenance and monitoring activities will be summarized in an Annual Report. The overall condition of the native planting areas, including soil erosion, overall vegetation quality, and invasive weed growth will be described and will include photo documentaiton. The vegetative quality ratings will be compiled according to Wilhelm and Rericha (2017) and U.S. Army Corps of Engineers methodology and will be included along with recommendations for meeting SM success criteria. The Annual Report will be prepared and sent to you for review prior to submittal to the City and DCSM, due January 31 51 of each year. Task 6 - Prescribed Burn Management: We, or our subcontractor, will complete two prescribed burns during the course of this project. We will first burn the NW comp basin to prepare for the restoration seeding installation (2019 or 2020). We will burn the SE buffer and NC basin areas (likely 2022). The burns promote the establishment of native plant species, discourage non-native weeds, and help kill undesirable woody seedlings. This task includes labor for obtaining necessary permits and material costs for mailing neighbor notification postcards. A list of all adjacent residences, businesses, public institutions, etc. within 500 feet of the burn site will be compiled for notification. Neighbors will be notified approximately two weeks in advance of the prescribed burn. We will provide a Neighbor Notification postcard via e-mail for City review and notification. This task, weather permitting, will be completed in Fall 2019, Spring 2020, or Fall 2020 in the NW comp basin to prepare for the restoration seeding installation. Burning of the SE buffer and NC basin will be completed in Spring or Fall 2022, depending on vegetation establishment following restoration activities. The completion of this task is also dependent on the processing time by the Illinois Environmental Protection Agency in issuing the Open Burning permit, authorization of the City of West Chicago, the local Fire District, and as weather conditions allow. This task includes labor costs in preparing for the burn, including equipment preparation and transportation to and from the burn site, as well as labor costs for the completion of burning. Note that this task may be completed by others, such as Emerald or another contractor, upon our advisement and within the fee estimate below. This task also includes the preparation of a Burn Report, which will be included in the Annual Report. The burn report includes a summary of site conditions before and after burning, effectiveness of the burn, and photo documentation of the burn in progress and after completion. Every prescribed burn is unique because conditions vary by site and by day; therefore, results will vary. Primary objectives of a controlled burn are to reduce invasive species, increase biological diversity and reduce fuel buildup in attempting to maintain and improve vegetation quality. CBBEL will attempt to burn the targeted vegetation present, but actual burn coverage will be limited by water level, wind speed and direction, humidity, temperature, vegetation moisture content, topography, structures, fences, etc. The available fuels, the structure of the fuels and weather conditions all influence fire behavior. Note that unburned vegetation will likely exist after completion of the burn due to the limitations listed above. N:IPROPOSALS\ADMIN\2019\West Chi Salt Facility M&M-ENJ-093019.doc 3 ===== PDF PAGE 24 ===== [Extraction: embedded PDF text] Task 7 - Project Management. Meeting, Coordination. & Correspondence: We will coordinate the selective clearing and planting installation work by Emerald in Year 1. We will provide correspondence and coordinate activities during the 3 year M&M period, and will attend an on-site meeting with DCSM and the City in Year 3. We anticipate scheduling this meeting in Fall 2022 to evaluate site progress toward achieving project sign-off. Task 8 -Additional Services & Assistance: Additional meetings, agency correspondence, or services not outlined in this proposal will be charged on a time and materials basis, as needed. FEE ESTIMATE Task 2 - Site Monitoring and Weed Control $ 2,000 Task 6 - Project Management, Meetings, Coordination, & Correspondence $ 1,000 Task 8 -Additional Services & Assistance Time&Materials Direct Costs (7%) $ 210 Total 2019 $ 3,210 Task 1 - Restoration Seeding $ 3,000 Task 2 - Site Monitoring and Weed Control $ 3,000 Task 4- Vegetation Monitoring Assessment $ 2,000 Task 5 - Annual Report $ 2,400 Task 6 - Project Management, Meetings, Coordination, & Correspondence $ 800 Task 7 - Prescribed Burn Management (Fall 2019 or Spring 2020) $ 4,000 Task 8 - Additional Services & Assistance Time & Materials Direct Costs (7%) $ 1,060 Total 2020 $16,260 2021 Task 2 - Site Monitoring and Weed Control $ 3,000 Task 3 - Supplemental Seeding $ 600 Task 4 -Vegetation Monitoring Assessment $ 2,000 Task 5 - Annual Report $ 2,400 Task 6 - Project Management, Meetings, Coordination, & Correspondence $ 800 Task 8 -Additional Services & Assistance Time&Materials Direct Costs (7%) $ 620 Total 2021 $ 9,420 Task 2 - Site Monitoring and Weed Control $ 3,000 Task 3- Supplemental Seeding $ 600 Task 4-Vegetation Monitoring Assessment $ 2,000 Task 5 - Annual Report $ 2,400 Task 6 - Project Management, Meetings, Coordination, & Correspondence $ 800 Task 7 - Prescribed Burn Management (Spring or Fall 2022) $ 4,000 Task 8 -Additional Services & Assistance Time & Materials Direct Costs (7%) $ 900 Total 2020 $13,700 N:IPROPOSALSIADMIN\2019\West Chi Salt Facility M&M-ENJ-093019.doc 4 ===== PDF PAGE 25 ===== [Extraction: embedded PDF text] We will bill you at the hourly rates specified on the attached Schedule of Charges, noting that the labor charge for prescribed burning is $150 per hour, at minimum. We establish our contract in accordance with the attached General Terms and Conditions and Conditions For Burning. Direct costs for photocopying, report binding, mailing, mileage, herbicide, seed, burn ignition fuel, and equipment are included in the Fee Estimate. Direct costs for blueprints, overnight delivery, and messenger services are not included in the Fee Estimate. These General Terms and Conditions and Conditions For Burning 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. Please sign and return one copy of this agreement and conditions for burning as an indication of acceptance and notice to proceed. Please feel free to contact us anytime. Sincerely, ())~ Christopher B. Burke, PhD, PE, D.WRE, Dist.M.ASCE President Encl. 2019 Schedule of Charges General Terms and Conditions Conditions For Burning THIS PROPOSAL, SCHEDULE OF CHARGES, GENERAL TERMS & CONDITIONS, AND CONDITIONS FOR BURNING ACCEPTED FOR THE CITY OF WEST CHICAGO: BY: TITLE: DATE: N:IPROPOSALSIADMIN\2019\West Chi Salt Facility M&M-ENJ-093019.doc 5 ===== PDF PAGE 26 ===== [Extraction: embedded PDF text] CHRISTOPHER B. BURKE ENGINEERING, LTD. STANDARD CHARGES FOR PROFESSIONAL SERVICES JANUARY. 2019 Charges* Personnel fWrl Principal 265 Engineer VI 241 EngineerV 200 Engineer IV 163 Engineer Ill 146 Engineer I/II 116 SurveyV 220 Survey IV 188 Survey Ill 165 Survey II 121 Survey I 96 Engineering Technician V 190 Engineering Technician IV 155 Engineering Technician Ill 140 Engineering Technician I/II 65 CAD Manager 170 Assistant CAD Manager 147 CAD II 130 GIS Specialist Ill 142 GIS Specialist I/II 90 Landscape Architect 163 Environmental Resource Specialist V 208 Environmental Resource Specialist IV 163 Environmental Resource Specialist Ill 134 Environmental Resource Specialist I/II 90 Environmental Resource Technician 110 Administrative 100 Engineering Intern 61 Information Technician Ill 125 Information Technician I/II 112 Direct Costs Outside Copies, Blueprints, Messenger, Delivery Services, Mileage Cost+ 12% *Charges include overhead and profit Christopher B. Burke Engineering, Ltd. reserves the right to increase these rates and costs by 5% after December 31, 2019. ===== PDF PAGE 27 ===== [Extraction: embedded PDF text] 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 Servi.ces: 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 forthe resumptions ===== PDF PAGE 28 ===== [Extraction: embedded PDF text] 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 ===== PDF PAGE 29 ===== [Extraction: embedded PDF text] 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 ===== PDF PAGE 30 ===== [Extraction: embedded PDF text] 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 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. 4 ===== PDF PAGE 31 ===== [Extraction: embedded PDF text] 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 party. 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 party to this Agreement and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 13. Successors and Assigns: The terms of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns: provided, however, that neither party shall assign this Agreement in whole or in part without the prior written approval of the other. 14. Waiver of Contract Breach: The waiver of one party of any breach of this Agreement or the failure of one party to enforce at any time, or for any period of time, any of the provisions hereof, shall be limited to the particular instance, shall not operate or be deemed to waive any future breaches of this Agreement and shall not be construed to be a waiver of any provision, except for the particular instance. 15. Entire Understanding of Agreement: This Agreement represents and incorporates the entire understanding of the parties hereto, and each party acknowledges that there are no warranties, representations, covenants or understandings of any kind, matter or description whatsoever, made by either party to the other except as expressly set forth herein. Client and the Engineer hereby agree that any purchase orders, invoices, confirmations, acknowledgments or other similar documents executed or delivered with respect to the subject matter hereof that conflict with the terms of the Agreement shall be null, void and without effect to the extent they conflict with the terms of this Agreement. 16. Amendment: This Agreement shall not be subject to amendment unless another instrument is duly executed by duly authorized representatives of each of the parties and entitled "Amendment of Agreement". 5 ===== PDF PAGE 32 ===== [Extraction: embedded PDF text] 17. Severability of Invalid Provisions: If any provision of the Agreement shall be held to contravene or to be invalid under the laws of any particular state, county or jurisdiction where used, such contravention shall not invalidate the entire Agreement, but it shall be construed as if not containing the particular provisions held to be invalid in the particular state, country or jurisdiction and the rights or obligations of the parties hereto shall be construed and enforced accordingly. 18. Force Majeure: Neither Client nor Engineer shall be liable for any fault or delay caused by any contingency beyond their control including but not limited to acts of God, wars, strikes, walkouts, fires, natural calamities, or demands or requirements of governmental agencies. 19. Subcontracts: Engineer may subcontract portions of the work, but each subcontractor must be approved by Client in writing. 20. Access and Permits: Client shall arrange for Engineer to enter upon public and private property and obtain all necessary approvals and permits required from all governmental authorities having jurisdiction over the Project. Client shall pay costs (including Engineer's employee salaries, overhead and fee) incident to any effort by Engineer toward assisting Client in such access, permits or approvals, if Engineer perform such services. 21. Designation of Authorized Representative: Each party (to this Agreement) shall designate one or more persons to act with authority in its behalf in respect to appropriate aspects of the Project. The persons designated shall review and respond promptly to all communications received from the other party. 22. Notices: Any notice or designation required to be given to either party hereto shall be in writing, and unless receipt of such notice is expressly required by the terms hereof shall be deemed to be effectively served when deposited in the mail with sufficient first class postage affixed, and addressed to the party to whom such notice is directed at such party's place of business or such other address as either party shall hereafter furnish to the other party by written notice as herein provided. 23. 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. 6 ===== PDF PAGE 33 ===== [Extraction: embedded PDF text] 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 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 7 ===== PDF PAGE 34 ===== [Extraction: embedded PDF text] 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: 8 ===== PDF PAGE 35 ===== [Extraction: embedded PDF text] 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 "lndemnitees") from and against all such loss, expense, damage or injury, including reasonable attorneys' fees, that the lndemnitees may sustain as a result of such claims, except to the extent that Illinois law prohibits indemnity for the lndemnitees' 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 9 ===== PDF PAGE 36 ===== [Extraction: embedded PDF text] Contractor and shall not be responsible for the Contractor's failure to perform its Work in accordance with the Contract Documents or any applicable laws, codes, rules or regulations. When municipal review services are included in the Scope of Services, the Engineer (acting on behalf of the municipality), when acting in good faith in the discharge of its duties, shall not thereby render itself liable personally and is, to the maximum extent permitted by law, relieved from all liability for any damage that may accrue to persons or property by reason of any act or omission in the discharge of its duties. Any suit brought against the Engineer which involve the acts or omissions performed by it in the enforcement of any provisions of the Client's rules, regulation and/or ordinance shall be defended by the Client until final termination of the proceedings. The Engineer shall be entitled to all defenses and municipal immunities that are, or would be, available to the Client. 29. Insurance and Indemnification: The Engineer and the Client understand and agree that the Client will contractually require the Contractor to defend and indemnify the Engineer and/or any subconsultants from any claims arising from the Work. The Engineer and the Client further understand and agree that the Client will contractually require the Contractor to procure commercial general liability insurance naming the Engineer as an additional named insured with respect to the work. The Contractor shall provide to the Client certificates of insurance evidencing that the contractually required insurance coverage has been procured. However, the Contractor's failure to provide the Client with the requisite certificates of insurance shall not constitute a waiver of this provision by the Engineer. The Client and Engineer waive all rights against each other and against the Contractor and consultants, agents and employees of each of them for damages to the extent covered by property insurance during construction. The Client and Engineer each shall require similar waivers from the Contractor, consultants, agents and persons or entities awarded separate contracts administered under the Client's own forces. 30. Hazardous Materials/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 P:\Proposals\Terms and Conditions\GT&C 2005.061305.doc 10 ===== PDF PAGE 37 ===== [Extraction: embedded PDF text] CONDITIONS FOR PRESCRIBED BURNING Prescribed or controlled burning is "the careful ignition of ecosystem restorations, mitigations and natural areas under exacting weather conditions to achieve specific resource management objectives". Controlled burning is a permitted and potentially hazardous activity, to be undertaken at the peril of those so choosing. Christopher B. Burke Engineering, Ltd. shall be referred to in this document as CBBEL. Structures, Trees and Shrubs All reasonable precautions will be taken to protect structures within the burn area such as non-native and evergreen trees and shrubs, lighting, fencing, sheds, etc., and protective measures will be noted in the pre-burn plan. CBBEL is not responsible or liable for any damage to these structures as their inclusion in burn management areas are inherently incompatible with the process, requiring the deployment of reasonable protective measures. Letters of Intent CBBEL shall be responsible for mailing letters of intent to burn to all residents/businesses, etc. within 500 feet of the burn site. These letters will be sent at least four weeks before the scheduled burn. CBBEL will notify any respondees of the notification letter on the day of the burn. Burn Delays If weather conditions are abnormal during the burn season and/or if there are restrictive conditions or situations under which a burn may be conducted, few or no opportunities to burn may result. In this case the client will only be invoiced for work performed in planning and preparing to conduct the burn. Additional Costs The client will also be responsible for any additional direct incurred costs on the project. These may include charges from local fire, police or utility companies and neighbor notification mailings. Health and Safety CBBEL is concerned about the health and safety of its employees and others in the burn area. If the landowner/client knows of any toxic substances, hazardous materials, or any other hazardous site conditions within the burn area CBBEL must be notified in advance of the burn. CBBEL reserves the right to cancel or reschedule the burn upon discovery of any of those elements. The client and/or landowner will only be invoiced for charges incurred thus far. The client and/or landowner shall be liable if any health problems occur due to hazardous or toxic substances present on site that CBBEL is not aware of. I have read and understood the above and agree to terms and conditions stated: Client Signature----- ------------' Date ____ _ Prescribed Burning Cond_2014