Christopher B. Burke Engr LTD/Engr �t f
Christopher B. Burke Engineering, LTD V� b 7 Oct
Engineering Department 2010
Appropriation #206- R4462838; P.O. #21818
Contract Not To Exceed $15,000.00
APRROYD AS TO FORM BY
AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES "Agreement is hereby made and
entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works
and Safety (hereinafter "City and Christopher B. Burke Engineering LTD (hereinafter "Professional
RECITALS
WHEREAS City owns and is responsible for the operation and maintenance of its property,
personnel, public works and infrastructure; and
WHEREAS, from time to time, City needs professional assistance in fulfilling its foregoing
responsibilities; and
WHEREAS, Professional is experienced in providing and desires to provide to City the
professional services "Services referenced herein; and
WHEREAS, City desires to engage Professional as an independent contractor for the purpose of
providing to City the Services referenced herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and conditions
set forth herein, City and Professional mutually agree as follows:
SECTION 1. INCORPORATION OF RECITALS
The foregoing Recitals are hereby incorporated into this Agreement and made a part hereof.
SECTION 2. SCOPE OF SERVICES
2.1 City desires to engage Professional as an independent contractor for the Services set forth in
attached Exhibit A, incorporated herein by this reference.
2.2 Professional understands and agrees that City may, from time to time, request Professional to
provide additional or modified Services to City. When City desires additional Services from
Professional, the City shall notify Professional of such additional Services desired, as well as the
time frame in which same are to be provided. Only after City has approved Professional's time
and cost estimate for the provision of such additional Services, has encumbered sufficient monies
to pay for same, and has authorized Professional, in writing, to provide such additional Services,
shall such Services be provided by Professional to City. A copy of the City's authorization
documents for the purchase of additional Services shall be numbered and attached hereto in the
order in which they are approved by City.
2.3 Time is of the essence of this Agreement.
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Christopher B. Burke Engineering, LTD
Engineering Department 2010
Appropriation #206- R4462838; P.O. #21818
Contract Not To Exceed $15,000.00
SECTION 3. CITY'S RESPONSIBILITIES
3.1 City shall provide such information as is reasonably necessary for Professional to understand the
Services requested.
3.2 City shall provide all data required for provision of Services. Professional may assume that all
data so provided is correct and complete.
3.3. City shall arrange for Professional to enter upon public and private property as reasonably required
for Professional to perform the Services.
3.4 City shall designate payment of the Services from City budget appropriation number 206
R4462838 funds.
3.5 City shall designate the Mayor or his duly authorized representative to act on City's behalf on all
matters regarding the Services.
SECTION 4. PROFESSIONAL'S RESPONSIBILITIES
4.1 Professional shall perform the Services pursuant to the terms of this Agreement and within any
applicable time and cost estimate.
4.2 Professional shall coordinate with City its performance of the Services.
4.3 Professional shall provide the Services by following and applying at all times reasonable and
lawful standards as accepted in the industry.
SECTION 5. COMPENSATION
5.1 Professional estimates that the total price for the Services to be provided to City hereunder shall be
no more than Fifteen Thousand Dollars ($15,000.00) (the "Estimate Professional shall submit
an invoice to City no more than once every thirty (30) days for Services provided City during the
time period encompassed by such invoice. Invoices shall be submitted on a form containing the
same information as that contained on the Professional Services Invoice attached hereto as Exhibit
B, incorporated herein by this reference. City shall pay Professional for all undisputed Services
rendered and stated on such invoice within sixty (60) days from the date of City's receipt of same.
5.2 Professional agrees not to provide any Services to City that would cause the total cost of same to
exceed the Estimate, without City's prior written consent.
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Christopher B. Burke Engineering, LTD
Engineering Department 2010
Appropriation #206- R4462838; P.O. #21818
Contract Not To Exceed $15,000.00
SECTION 6. TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Section 7.1
hereinbelow, this Agreement shall be in effect from the Effective Date through December 31,
2010, and shall, on the first day of each January thereafter, automatically renew for a period of one
(1) calendar year, unless otherwise agreed by the parties hereto.
SECTION 7. MISCELLANEOUS
7.1 Termination.
7.1.1 The obligation to provide all or any portion of the Services under this Agreement may be
terminated by City or Professional, without cause, upon thirty (30) days' notice.
7.1.2 The obligation to provide all or any portion of the Services under this Agreement may be
terminated by City, for cause, immediately upon Professional's receipt of City's "Notice
To Cease Services."
7.1.3 In the event of full or partial Agreement termination, and as full and complete
compensation hereunder, Professional shall be paid for all such Services rendered and
expenses incurred as of the date of termination that are not in dispute, except that such
payment amount shall not exceed the Estimate. Disputed compensation amounts shall be
resolved as allowed by law.
7.2 Binding Effect.
City and Professional, and their respective officers, officials, agents, partners and successors in
interest are bound to the other as to all Agreement terms, conditions and obligations.
7.3 No Third Party Beneficiaries.
Nothing contained herein shall be construed to give rights or benefits to anyone other than the
parties hereto.
7.4 Relationship.
The relationship of the parties hereto shall be as provided for in this Agreement, and neither
Professional nor any of its agents, employees or contractors are City employees. Professional shall
have the sole responsibility to pay to or for its agents, employees and contractors all statutory,
contractual and other benefits and /or obligations as they become due. Professional hereby warrants
and indemnifies City for and from any and all costs, fees, expenses and /or damages incurred by
City as a result of any claim for wages, benefits or otherwise by any agent, employee or contractor
of Professional regarding or related to the subject matter of this Agreement. This indemnification
obligation shall survive the termination of this Agreement.
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Christopher B. Burke Engineering, LTD
Engineering Department 2010
Appropriation #206- R4462838; P.O. #21818
Contract Not To Exceed $15,000.00
7.5 Insurance.
Professional shall procure and maintain with an insurer licensed to do business in the State of
Indiana such insurance as is necessary for the protection of City and Professional from all claims
under workers' compensation, occupational disease and /or unemployment compensation acts,
because of errors and omissions, because of bodily injury, including, but not limited to, the
personal injury, sickness, disease, or death of any of Professional's employees, agents or
contractors and /or because of any injury to or destruction of property, including, but not limited to,
any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set
forth on attached Exhibit C. Such insurance policies shall not be canceled without thirty (30)
days' prior written notice to City.
7.6 Liens.
Professional shall not cause or permit the filing of any lien on any of City's property. In the event
such a lien is filed and Professional fails to remove it within ten (10) days after the date of filing,
City shall have the right to pay or bond over such lien at Professional's sole cost and expense.
7.7 Default.
In the event Professional: (a) repudiates, breaches or defaults under any of the terms or conditions
of this Agreement, including Professional's warranties; (b) fails to perform the Services as
specified; (c) fails to make progress so as to endanger timely and proper completion of the
Services and does not correct such failure or breach within five (5) business days after receipt of
notice from City specifying same; or (d) becomes insolvent, files, or has filed against it, a petition
for receivership, makes a general assignment for the benefit of creditors or dissolves, each such
event constituting an event of default hereunder, City shall have the right to terminate all or any
part of this Agreement,, without liability to Professional and to exercise any other rights or
remedies available to it at law or in equity.
7.8 Government Compliance.
Professional agrees to comply with all laws, executive orders, rules and regulations applicable to
Professional's performance of its obligations under this Agreement, all relevant provisions of
which being hereby incorporated herein by this reference, to keep all of Professionals' required
professional licenses and certifications valid and current, and to indemnify and hold harmless City
from any and all losses, damages, costs, liabilities, damages, costs and attorney fees resulting from
any failure by Professional to do so. This indemnification obligation shall survive the termination
of this Agreement.
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Christopher B. Burke Engineering, LTD
Engineering Department 2010
Appropriation #206- R4462838; P.O. #21818
Contract Not To Exceed $15,000.00
7.9 Indemnification.
Professional shall indemnify and hold harmless City and its officers, officials, employees and
agents from all losses, liabilities, claims, judgments and liens, including, but not limited to, all
damages, costs, expenses and attorney fees arising out of any intentional or negligent act or
omission of Professional and /or any of its employees, agents or contractors in the performance of
this Agreement. This indemnification obligation shall survive the termination of this Agreement.
7.10 Discrimination Prohibition.
Professional represents and warrants that it and each of its employees, agents and contractors shall
comply with all existing and future laws prohibiting discrimination against any employee,
applicant for employment and /or other person in the subcontracting of work and /or in the
performance of any Services contemplated by this Agreement with respect to hire, tenure, terms,
conditions or privileges of employment or any matter directly or indirectly related to employment,
subcontracting or work performance hereunder because of race, religion, color, sex, handicap,
national origin, ancestry, age, disabled veteran status or Vietnam era veteran status. This
indemnification obligation shall survive the termination of this Agreement.
7.11 Severability.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of
competent jurisdiction, that provision shall be stricken, and all other provisions of this Agreement
that can operate independently of same shall continue in full force and effect.
7.12 Notice.
Any notice, invoice, order or other correspondence required or allowed to be sent pursuant to this
Agreement shall be written and either hand delivered or sent by prepaid U.S. certified mail, return
receipt requested, addressed to the parties as follows:
CITY:
City of Carmel Douglas C. Haney
Department of Administration Carmel City Attorney
One Civic Square One Civic Square
Carmel, Indiana 46032 Carmel, Indiana 46032
ATTENTION: Michael McBride
PROFESSIONAL:
Christopher B. Burke Engineering, LTD
National City Center, Suite 1368
South 115 W. Washington Street
Indianapolis, Indiana 46204
ATTENTION: Jon D. Stolz, P.E.
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Christopher B. Burke Engineering, LTD
Engineering Department 2010
Appropriation #206- R4462838; P.O. #21818
Contract Not To Exceed $15,000.00
Notwithstanding the above, City may orally provide to Professional any notice required or
permitted by this Agreement, provided that such notice shall also then be sent as required by this
paragraph within ten (10) business days from the date of such oral notice.
7.13 Effective Date.
The effective date "Effective Date of this Agreement shall be the date on which the last of the
parties hereto executes same.
7.14 Governing Law; Lawsuits.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Indiana, except for its conflict of laws provisions, as well as by all ordinances and codes of the
City of Carmel, Indiana. The parties agree that, in the event a lawsuit is filed hereunder, they
waive any right to a jury trial they may have, agree to file such lawsuit in an appropriate court in
Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has
jurisdiction over same.
7.15 Waiver.
Any delay or inaction on the part of either party in exercising or pursuing its rights and /or
remedies hereunder or under law shall not operate to waive any such rights and /or remedies nor in
any way affect the rights of such party to require such performance at any time thereafter.
7.16 Non Assignment.
Professional shall not assign or pledge this Agreement nor delegate its obligations hereunder
without City's prior written consent.
7.17 Entire Agreement.
This Agreement contains the entire agreement of and between the parties hereto with respect to the
subject matter hereof, and no prior agreement, understanding or representation pertaining to such
subject matter, written or oral, shall be effective for any purpose. No provision of this Agreement
may be amended, added to or subtracted from except by an agreement in writing signed by both
parties hereto and /or their respective successors in interest. To the extent any provision contained
in this Agreement conflicts with any provision contained in any exhibit attached hereto, the
provision contained in this Agreement shall prevail.
7.18 Representation and Warranties.
Each party hereto represents and warrants that it is authorized to enter into this Agreement and that
any person or entity executing this Agreement on behalf of such party has the authority to bind
such party or the party which they represent, as the case may be.
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Christopher B. Burke Engineering, LTD
Engineering Department 2010
Appropriation #206- R4462838; P.O. #21818
Contract Not To Exceed $15,000.00
7.19 Headings.
All headings and sections of this Agreement are inserted for convenience only and do not form a
part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof.
7.20 Advice of Counsel.
The parties warrant that they have read this Agreement and fully understand it, have had an
opportunity to obtain the advice and assistance of counsel throughout the negotiation of same, and
enter into same freely, voluntarily, and without any duress, undue influence or coercion.
7.21 Copyright.
City acknowledges that various materials which may be used and /or generated by Professional in
performance of Services, including fortes, job description formats, comprehensive position
questionnaire, compensation and classification plan and reports are copyrighted. City agrees that
all ownership rights and copyrights thereto lie with Professional, and City will use them solely for
and on behalf of its own operations. City agrees that it will take appropriate action with its
employees to satisfy its obligations with respect to use, copying, protection and security of
Professional's property.
7.22 Personnel.
Professional represents that it has, or will secure at its own expense, all personnel required in
performing the services under this agreement. Such personnel shall not be employees of or have
any contractual relationship with City. All of the services required hereunder will be performed
by Professional or under his supervision and all personnel engaged in the work shall be fully
qualified to perform such services.
7.23 Records and Inspections
Professional shall maintain full and accurate records with respect to all matters covered under this
agreement for three (3) years after the expiration or early termination of this agreement. City shall
have free access at all proper times to such records and the right to examine and audit the same
and to make transcripts there from, and to inspect all program data, documents, proceedings and
activities.
7.24 Accomplishment of Project
Professional shall commence, carry on, and complete the project with all practicable dispatch, in a
sound economical and efficient manner, in accordance with the provisions thereof and all
applicable laws. In accomplishing the project, Professional shall take such steps as are appropriate
to ensure that the work involved is properly coordinated with related work being carried on within
City's organization.
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Christopher B. Burke Engineering, LTD
Engineering Department 2010
Appropriation #206- R4462838; P.O. #21818
Contract Not To Exceed $15,000.00
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA CHRISTOPHER B. BURKE
by and through its Board of Public ENGINEERING, LTD
Works and Safety
BY: BY:
If
d'es Brainard, Presiding Officer A 44 Signature
ate: 7- /r)
Printed Name: 3o,v D. S t. �-z
,d
M.ry Burke, Member Title: Ha /toy- /VIA 4 c
Date: 7 -`7 -/O
FID /TIN: 36- 3'14 VI 3y
Lori S. atso P, ember SSN if Sole Proprietor:
Date: 7/1/to Date: Ja k.. 22 2a Z
ATTEST.
P ana Cordray, IA P C, Clerk- Treasurer
Date: 02- n
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CHRISTOPHER B. BURKE ENGINEERING, LTD.
National City Center Suite 1368 South 115 W. Washington St. Indianapolis Indiana 46204 TEL (317) 266 -8000 FAX (317) 632 -3306 TOLL FREE (888) 463 -1974
June 9, 2010
Mr. John Thomas, CPESC
Storm Water Administrator
City of Carmel
One Civic Square
Carmel, Indiana 46032
Subject: On -call, On -going Support of NPDES Phase 2 Implementation Tasks
Professional Services Proposal
Dear Mr. Thomas,
As requested, Christopher B. Burke Engineering, Ltd. (CBBEL) has prepared this
proposal for providing 2010 as- needed support to the City of Carmel (the City) as you
implement your NPDES Phase II MS4 Stormwater Permit. Based on recent
conversations with City staff, it appears that there may be a variety of related tasks we
may be able to help you with. As requested, we have prepared this proposal with an
hourly- based, as- needed professional engineering and planning services. agreement.
The following is our understanding of the assignment, scope of services, and estimated
fee in support of the project.
UNDERSTANDING OF THE ASSIGNMENT
The professional services will consist of on -going completion of required permit activities
(some are one time only completion activities and some will need to be conducted on an
on- going and /or as- needed basis) such as updating and revising the City's Stormwater
Quality Management Plan (SWQMP) Parts B and C, assisting with the City's Rule 13
Annual Report, and providing as- needed support services to aid the Storm Water
Administrator.
SCOPE OF SERVICES
Services to be provided by CBBEL, as- needed and directed by the City include, but are
not limited to:
Updating and revising the City's Rule 13 SWQMP: Part B and Part C (including
the City's Illicit Discharge Detection and Elimination (IDDE) Plan) so they may be
included with the City's Annual Report submittal to IDEM no later than October 30, 2010;
Christopher B. Burke Engineering Ltd. Carmel SW2: On -going Services 1
C 01.P050641.02010
EXHIBIT A
ably
Assisting with preparations of the City's Rule 13 Annual Report noted above;
Providing on -going engineering and planning support to the City staff (mainly the
Storm Water Administrator) in completing various implementation tasks necessary
for compliance with the NPDES Phase II regulations, as- needed and directed by
the City;
Advising on stormwater quality matters, floodplain /floodway, ordinances and
technical standards, drainage, site development, assistance with agencies, and
related issues, as needed and directed by the City; and
Performing other duties as assigned by the City.
As .part of this scope, CBBEL staff will also evaluate project components for long -term
sustainability and environmental consideration. When appropriate, CBBEL will offer
specific recommendations for consideration. It is our intent to bring awareness to all our
clients of how this may enhance or better the project by considering appropriate
sustainable components and incorporating the noted recommendations.
ESTIMATED FEE
The initial not -to- exceed budget for this on -call contract is $15,000. This initial budget
may be increased by the City upon further agreements by both parties. We will
undertake the above tasks as- needed and directed by the City, and as the budget would
allow. We will bill you monthly;" on a time and material basis, for assigned ;tasks, in
accordance with our standard Charges for Professional Services in effect at the time
each task` is initiated. The 2010 Standard Charges for Professional Services is attached.
In addition, our contract will be established in accordance with the `attached General
Terms and Conditions. These. General Terms and Conditions are expressly incorporated
into and are an integral part of this contract for professional services.
A statement will be sent to you every month based on the number of hours of staff
involvement and direct expenses incurred in that month broken down by job and task. If,
at any time, the City determines that it no longer requires the services. of CBBEL, this
contract will be considered completed. CBBEL would be entitled to reimbursement
according only to the actual time and material it has incurred and would have no claims
on any remaining unused budget set for this contract.
If this proposal meets with your approval, please sign where indicated and return an
executed original to us as our Notice to Proceed. The executed Proposal, along with the
Estimated Fee, the attached Standard Charges for Professional Services, and the
attached General Terms and Conditions constitute the whole of our Agreement. Any
modification to any part of this Agreement without prior acknowledgement and consent
by CBBEL will make null and void this Agreement. Any time commitment made by
CBBEL as part of the Agreement does not begin until CBBEL has received an executed
Christopher B. Burke Engineering Ltd. Carmel SW2: On -going Services 2
C; 01.P050641.02010
A e7,,t5.0
original.
We appreciate the opportunity to submit this proposal and look forward to working with
you on this project. Please contact me or Lori Gates at the number listed above if you
have any questions.
Sincerely,
Jon D. Stolz, P.E.
Manager, Indiana
THIS PROPOSAL, SCOPE OF SERVICES, ESTIMATED FEE, AND GENERAL
TERMS AND CONDITIONS ARE ACCEPTED BY THE CITY OF CARMEL:
Signature:
Name (Printed):
Title:
Date:
Enclosures: 2010 Standard Charges for Professional Services
General. Terms and Conditions
OPN# 01.P050641.02010
JOS /Ig
Christopher B. Burke Engineering Ltd. Carmel SW2: On-going
P 9� 9 Services 3
C 01.P050641 .02010 A
3e
CHRISTOPHER B. BURKE ENGINEERING, LTD.
STANDARD CHARGES FOR PROFESSIONAL SERVICES
INDIANA PROJECTS
JANUARY 2010
Charges*
Personnel /Hr)
Engineer VI 210
Engineer V 168
Engineer IV 138
Engineer III 125
Engineer I /II 102
Resource Planner V 138
Resource Planner IV 125
Resource Planner III 109
Resource Planner I /II 96
Engineering Technician IV 125
Engineering Technician III 109
Engineering Technician I /II 96
CAD II 111
CAD I 98
GIS Specialist III 109
GIS Specialist I /II 87
Environmental Resource Specialist V 138
Environmental Resource Specialist IV 125
Environmental Resource Specialist III 109
Environmental Resource Specialist I /II 96
Environmental Resource Technician 90
Administrative 67
Engineering Intern 53
Information Technician I /II 62
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, 2010.
Christopher B. Burke Engineering, Ltd.
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CHRISTOPHER B. BURKE ENGINEERING, LTD.
GENERAL TERMS AND CONDITIONS
1. Relationship Between Engineer and Client: Christopher B. Burke Engineering, Ltd.
(Engineer) shall serve as Client's professional engineer consultant in those phases of
the Project to which this Agreement applies. This relationship is that of a buyer and
seller of professional services and as such the Engineer is an independent contractor in
the performance of this Agreement and it is understood that the parties have not entered
into any joint venture or partnership with the other. The Engineer shall not be
considered to be the agent of the Client. Nothing contained in this Agreement shall
create a contractual relationship with a cause of action in favor of a third party against
either the Client or Engineer.
Furthermore, causes of action between the parties to this Agreement pertaining to acts
of failures to act shall be deemed to have accrued and the applicable statute of
limitations shall commence to run not later than the date of substantial completion.
2. Responsibility of the Engineer: Engineer will strive to perform services under this
Agreement in accordance with generally accepted and currently recognized engineering
practices and principles, and in a manner consistent with that level of care and skill
ordinarily exercised by members of the profession currently practicing in the same
locality under similar conditions. No other representation, express or implied, and no
warranty or guarantee is included or intended in this Agreement, or in any report,
opinion, document, or otherwise.
Notwithstanding anything to the contrary which may be contained in this Agreement or
any other material incorporated herein by reference, or in any Agreement between the
Client and any other party concerning the Project, the Engineer shall not have control or
be in charge of and shall not be responsible for the means, methods, techniques,
sequences or procedures of construction, or the safety, safety precautions or programs
of the Client, the construction contractor, other contractors or subcontractors performing
any of the work or providing any of the services on the Project. Nor shall the Engineer
be responsible for the acts or omissions of the Client, or for the failure of the Client, any
architect, engineer, consultant, contractor or subcontractor to carry out their respective
responsibilities in accordance with the Project documents, this Agreement or any other
agreement concerning the Project. Any provision which purports to amend this provision
shall be without effect unless it contains a reference that the content of this condition is
expressly amended for the purposes described in such amendment and is signed by the
Engineer.
3. Changes: Client reserves the right by written change order or amendment to make
changes in requirements, amount of work, or engineering time schedule adjustments,
and Engineer and Client shall negotiate appropriate adjustments acceptable to both
parties to accommodate any changes, if commercially possible.
4. Suspension of Services: Client may, at any time, by written order to Engineer
(Suspension of Services Order) require Engineer to stop all, or any part, of the services
required by this Agreement. Upon receipt of such an order, Engineer shall immediately
comply with its terms and take all reasonable steps to minimize the costs associated
with the services affected by such order. Client, however, shall pay all costs incurred by
the suspension, including all costs necessary to maintain continuity and for the
resumptions of the services upon expiration of the Suspension of Services Order.
1
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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
extent permitted by law, to hold harmless and indemnify the Engineer from and against
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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.
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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 Indiana.
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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
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 Maieure: 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.
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
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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
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
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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. Indemnity Clause: 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 the Client agrees not to modify or delete it:
Contractor (and any subcontractor into whose subcontract this clause
is incorporated) agrees and acknowledges that Engineer shall be
considered a third party beneficiary of those contracts into which this
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clause has been incorporated; and agrees to assume the entire
liability for all personal injury claims suffered by its employees,
including without limitation, claims asserted by persons allegedly
injured on the Project; waives any limitation of liability defense based
on the Workers' 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 any such loss, expense, damage or injury, including
attorneys' fees and costs that the lndemnitees may sustain as a
result of such claims.
28. Job Site Safetv /Supervision Construction Observation: The Engineer shall neither have
control over or charge of, nor be responsible for, the construction means, methods,
techniques, sequences of procedures, or for safety precautions and programs in connection
with the Work since they are solely the Contractor's rights and responsibilities. The Client
agrees that the Contractor shall supervise and direct the work efficiently with his /her best skill
and attention; and that the Contractor shall be solely responsible for the means, methods,
techniques, sequences and procedures of construction and safety at the job site. The Client
agrees and warrants that this intent shall be carried out in the Client's contract with the
Contractor. The Client further agrees that the Contractor shall be responsible for initiating,
maintaining and supervising all safety precautions and programs in connection with the work;
and that the Contractor shall take all necessary precautions for the safety of, and shall provide
the necessary protection to prevent damage, injury or loss to all employees on the subject site
and all other persons who may be affected thereby. The Engineer shall have no authority to
stop the work of the Contractor or the work of any subcontractor on the project.
When construction observation services are included in the Scope of Services, the Engineer
shall visit the site at intervals appropriate to the stage of the Contractor's operation, or as
otherwise agreed to by the Client and the Engineer to: 1) become generally familiar with and to
keep the Client informed about the progress and quality of the Work; 2) to strive to bring to the
Client's attention defects and deficiencies in the Work and; 3) to determine in general if the
Work is being performed in a manner indicating that the Work, when fully completed, will be in
accordance with the Contract Documents. However, the Engineer shall not be required to
make exhaustive or continuous on -site inspections to check the quality or quantity of the Work.
If the Client desires more extensive project observation, the Client shall request that such
services be provided by the Engineer as Additional and Supplemental Construction
Observation Services in accordance with the terms of this Agreement.
The Engineer shall not be responsible for any acts or omissions of the Contractor,
subcontractor, any entity performing any portions of the Work, or any agents or employees of
any of them. The Engineer does not guarantee the performance of the Contractor and shall
not be responsible for the Contractor's failure to perform its Work in accordance with the
Contract Documents or any applicable laws, codes, rules or regulations.
When municipal review services are included in the Scope of Services, the Engineer (acting
on behalf of the municipality), when acting in good faith in the discharge of its duties, shall not
thereby render itself liable personally and is, to the maximum extent 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,
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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 an operation, maintenance and repair activity for which
the Engineer is not responsible.
February 23, 2010 INDIANA
gtc- indiana modified 02- 23- 10.docx