HomeMy WebLinkAbout6E(1)C o m m u n i t y & E c o n o m i c D e v e l o p m e n t
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, Suite 1200, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 L Fax 574/235 -9021
South Bend Redevelopment Commission
Jitin Kain, Senior CED Specialist '�&
Utility Study for 5 Points Intersection
August 24, 2012
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Department of Transportation (INDOT) recently initiated the realignment project for
Northeast Neighborhood of South Bend. Once complete, the realigned intersection will
ditional 4 -way stop light which is expected to enhance vehicular flow throughout the
As Commission members are aware, an amendment to the Northeast Neighborhood Development
Area Plar was completed in October 25, 2011. This Plan provides a vision for the redevelopment of
the entire neighborhood and identifies the realigned 5 Points intersection as an area with high
potential for commercial development. See Exhibit A.
In order to facilitate a private sector development project by the new intersection, a utility study of
adjacent parcels is required. This study will help confirm which utilities are currently in place and
those that might need to be relocated to maximize the development potential for the area.
The attac ied proposal (Exhibit B) from Christopher B. Burke Engineering outlines the scope of
services I Dr this utility study. Staff requests approval of NNDA TIF funds in the amount not -to-
exceed $ 9,910. This amount includes a 10% contingency over the proposal amount.
EXHIBIT A
5 Points Redevelopment Area Vision
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EXHIBIT B
5 Points Utility Study Proposal
from Christopher Burke Engineering, LLC
C �
CHRISTOPHER B. BURKE ENGINEERING, LLC
220 West Colfax Avenu Suite 500 South Bend, IN 46601 TEL (574) 282 -8001 FAX (574) 282 -8003
August 10, 2012
Michael
Mecham, P.E.
City of
South Bend
Divisi
n of Engineering
13`h F
oor County -City Building
Sout
Bend, IN 46601
Subje t: 5 Points Utility Study
Professional Services Proposal
Dear Mr. Mecham:
Christ pher B. Burke Engineering, LLC ( CBBEL) is pleased to provide this proposal for professional
engin ?ering services related to the 5 Points Utility Study in the City of South Bend. The following is
our u iderstanding of the assignment, scope of services and estimated fee in support of the
proje t.
As we
Inters(
will de
UNDERSTANDING OF THE ASSIGNMENT
understand it, the City's objective is to maximize development area at the new 4 Points
ction that will be created with the realignment of SR23 at Corby and Eddy Streets. CBBEL
termine potential realignments of existing utilities to help maximize developable area.
SCOPE OF SERVICES
CBBEL�will complete the following tasks to meet the project objectives as described in the RFP and
clarifie during our meeting on August 7, 2012:
Task 1 — Existing Utility Coordination and Confirmation: CBBEL will coordinate and meet with the
typical utility companies within the project area (shown on Exhibit A, attached) to collect utility
locations and as -built plans in order to accurately show them on the existing utility plan. This task
will in dude a site visit to confirm the visible utilities match the provided information. An existing
utility plan will be produced for the site.
EC ristopher B. Burke Engineering LLC City of South Bend: 5 Points Utility Study
3 2 12.5989 Page 1
Task 2 - Utility Relocation Options Preliminary Site Grading CBBEL will analyze the data and
create up to three cost - effective utility relocation options designed to encourage maximum
development in the project area. The analysis will include water distribution and sanitary sewer
collection, along with the other major utilities identified in Task 1. Each option will include a rough
site g ading plan and an estimate of total project cost. The preliminary grading plan will be based
on the City's GIS contours and will include general site drainage to the new proposed right of way
limits This task will include up to two meetings with City staff and officials to review the options
andselect the preferred alternative.
I ask - Preliminary Design of Relocated Utilities and Final Report: CBBEL will provide a preliminary
schematic design of the preferred alternative selected in Task 2. The schematic design will be
basec on data from the City's GIS and utility as -built plans. Survey services are not included with
this task. CBBEL will provide a final report that includes the existing utility plan from Task 1,
reloc tion options and cost estimates from Task 2, and the schematic design for the preferred
altern tive.
SCHEDULE
CBBEL will complete Task 1 within 3 weeks of the Notice to Proceed.
CBBEL will complete Task 2 within 2 weeks of completion of Task 1.
CBBEL will complete Task 3 within 2 weeks of completion of Task 2.
ESTIMATED FEE
We estimate the total cost for these professional services will not exceed $18,100.00.
If and hen the value of work accomplished exceeds 80% of the estimated fee, we will assess the
remai ing work and will notify you, in writing, if additional compensation will be needed. If
additic nal compensation is needed, we will do no work beyond the total estimated fee until you
issue a written contact amendment accepting the additional charges.
We will bill you monthly, on a time and material basis, in accordance with our attached standard
Charges for Professional Services. 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.
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
Agree Tent without prior acknowledgement and consent by CBBEL will make null and void this
B-
12.5989
B. Burke Engineering LLC
City of South Bend: 5 Points Utility Study
Page 2
Agregment. Any time commitment made by CBBEL as part of the Agreement does not begin until
CBBE has received an executed original.
We a preciate the opportunity to submit this proposal and look forward to working with you on
this p oject. Please call Jason Durr at 574- 282 -8001, or me at the number listed above, if you have
any cl estions.
Since0y,
xl�
Jon D Stolz, P.E.
Mana0r, Indiana
THIS ROPOSAL, ESTIMATED FEE, SCHEDULE OF CHARGES FOR PROFESSIONAL SERVICES,
AND ENERAL TERMS & CONDITIONS FOR THE HIGH 5 POINTS UTILITY STUDY IS ACCEPTED
BY THE CITY OF SOUTH BEND, INDIANA - DEPARTMENT OF PUBLIC WORKS
ACCEPTANCE
The above contract is accepted this day of
Subject to the following conditions:
BOARD OF PUBLIC WORKS
ATTEST:
Linda M. Martin - Clerk
Enclos res: Exhibit A - study area
Standard Charges for Professional Services
General Terms and Conditions
2012
3 C ristopher B. Burke Engineering LLC City of South Bend: 5 Points Utility Study
20 2.5989 Page 3
Study
Area
Study
Proposed
Area
Realigned SR -23
(By INDOT)
N
CITY OF SOUTH BEND
r 5- POINTS UTILITY
STUDY AREA
06/10/12
SHEET 'm '
dtr,wHa 'w.
JEB
DEPARTMENT OF PUBLIC WORKS
13 16 COUNTYICITY BUILDING
SOUTH BEND. IN 46601
CHRIST
PHER B. BURKE
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EXHIBIT A
4 B�
CHRISTOPHER B. BURKE ENGINEERING, LLC
STANDARD CHARGES FOR PROFESSIONAL SERVICES
JANUARY 2012
Engin er V
En in er IV
Engin er III
En in er 1/11
Resource Planner V
Resource Planner IV
Resource Planner III
Resource Planner 1/11
Engin ering Technician IV
En in ?erina Technician III
Engin ?ering Technician 1 /11
CAD II
CAD
GIS Specialist III
GIS Specialist 1 /II
Envirc nmental Resource Specialist V
Envirc nmental Resource Specialist IV
Environmental Resource Specialist III
Environmental Resource Specialist 1 /11
Environmental Resource Technician
Administrative
Enciineerinq Intern
Information Technician 1 /11
Charges*
Hr
210
168
125
102
138
125
109
125
109
96
111
98
87
138
125
109
96
90
67
53
62
Outside Copies, Blueprints, Messenger, Delivery Services, Mileage Cost + 12%
*Charges include overhead and profit
Christ pher B. Burke Engineering, LLC reserves the right to increase these rates and costs by 5% after
Dece ber 31, 2012.
CHRISTOPHER B. BURKE ENGINEERING, LLC
GENERAL TERMS AND CONDITIONS
elationshi Between En ineer and Client: Christopher B. Burke Engineering, LLC
( ngineer) shall serve as Client's professional engineer consultant in those phases of
we 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
ntered into any joint venture or partnership with the other. The Engineer shall not
Lie 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.
urthermore, causes of action between the parties to this Agreement pertaining to
cts of failures to act shall be deemed to have accrued and the applicable statute of
I mitations 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
ngineering practices and principles, and in a manner consistent with that level of
are and skill ordinarily exercised by members of the profession currently practicing
i the same locality under similar conditions. No other representation, express or
i plied, and no warranty or guarantee is included or intended in this Agreement, or
i any report, opinion, document, or otherwise.
otwithstanding anything to the contrary which may be contained in this Agreement
r any other material incorporated herein by reference, or in any Agreement between
ie Client and any other party concerning the Project, the Engineer shall not have
sintrol or be in charge of and shall not be responsible for the means, methods,
?chniques, sequences or procedures of construction, or the safety, safety precautions
r programs of the Client, the construction contractor, other contractors or
ibcontractors performing any of the work or providing any of the services on the
roject. Nor shall the Engineer be responsible for the acts or omissions of the Client,
r for the failure of the Client, any architect, engineer, consultant, contractor or
.ibcontractor to carry out their respective responsibilities in accordance with the
roject documents, this Agreement or any other agreement concerning the Project.
ny provision which purports to amend this provision shall be without effect unless it
:)ntains a reference that the content of this condition is expressly amended for the
urposes described in such amendment and is signed by the Engineer.
3. han es: 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
( uspension of Services Order), require Engineer to stop all, or any part, of the services
r quired by this Agreement. Upon receipt of such an order, Engineer shall
nmediately comply with its terms and take all reasonable steps to minimize the costs
ssociated with the services affected by such order. Client, however, shall pay all costs
icurred by the suspension, including all costs necessary to maintain continuity
nd for the resumption of the services upon expiration of the Suspension of
ervices Order. Engineer will not be obligated to provide the same personnel
mployed prior to suspension, when the services are resumed, in the event that the
eriod of suspension is greater than thirty (30) days.
5. ermination: 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
etermine that termination is in its best interests. Cost of termination, including
s laries, overhead and fee, incurred by Engineer either before or after the termination
ate 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
f les. Furthermore, it is understood and agreed that the Project Documents such as,
ut not limited to reports, calculations, drawings, and specifications prepared for the
roject, whether in hard copy or machine readable form, are instruments of
rofessional service intended for one -time use in the construction of this Project.
hese Project Documents are and shall remain the property of the Engineer. The
lient may retain copies, including copies stored on magnetic tape or disk, for
i formation 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
mat 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
rawings will generally be the same as the level of detail illustrated by the design
rawing used for project construction. If additional detail is requested by the Client to
e included on the record drawings, then the Client understands and agrees that the
Engineer will be due additional compensation for additional services.
is also understood and agreed that because of the possibility that information and
ata delivered in machine readable form may be altered, whether inadvertently or
therwise, the Engineer reserves the right to retain the original tapes /disks and to
move from copies provided to the Client all identification reflecting the
evolvement of the Engineer in their preparation. The Engineer also reserves the right
retain hard copy originals of all Project Documentation delivered to the Client in
iachine readable form, which originals shall be referred to and shall govern in the
vent of any inconsistency between the two.
he Client understands that the automated conversion of information and data from
t e system and format used by the Engineer to an alternate system or format cannot
Lie accomplished without the introduction of inexactitudes, anomalies, and errors. In
2
Me 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 all claims, liabilities, losses, damages, and costs, including but not limited
tp attorney's fees, arising therefrom or in connection therewith.
ie Client recognizes that changes or modifications to the Engineer's instruments of
-ofessional service introduced by anyone other than the Engineer may result in
]verse consequences which the Engineer can neither predict nor control. Therefore,
id in consideration of the Engineer's agreement to deliver its instruments of
-ofessional service in machine readable form, the Client agrees, to the fullest extent
�rmitted by law, to hold harmless and indemnify the Engineer from and against all
aims, liabilities, losses, damages, and costs, including but not limited to attorney's
es, arising out of or in any way connected with the modification, misinterpretation,
isuse, or reuse by others of the machine readable information and data provided by
e Engineer under this Agreement. The foregoing indemnification applies, without
nitation, to any use of the Project Documentation on other projects, for additions to
is Project, or for completion of this Project by others, excepting only such use as
ay be authorized, in writing, by the Engineer.
7. Feuse of Documents: All Project Documents including but not limited to reports,
pinions of probable costs, drawings and specifications furnished by Engineer
pursuant to this Agreement are intended for use on the Project only. They cannot be
sed by Client or others on extensions of the Project or any other project. Any reuse,
ithout specific written verification or adaptation by Engineer, shall be at Client's sole
r sk, and Client shall indemnify and hold harmless Engineer from all claims, damages,
I sses, and expenses including attorney's fees arising out of or resulting therefrom.
he Engineer shall have the right to include representations of the design of the
roject, including photographs of the exterior and interior, among the Engineer's
romotional and professional materials. The Engineer's materials shall not include the
lient's confidential and proprietary information if the Client has previously advised
ie Engineer in writing of the specific information considered by the Client to be
Dnfidential 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
3
ngineer's alleged failure to meet ADA requirements prescribed.
Further to the law and code compliance, the Client understands that the Engineer will
strive to provide designs in accordance with the prevailing Standards of Practice as
previously set forth, but that the Engineer does not warrant that any reviewing
agency having jurisdiction will not for its own purposes comment, request changes
and/or additions to such designs. In the event such design requests are made by a
reviewing agency, but which do not exist in the form of a written regulation,
ordinance or other similar document as published by the reviewing agency, then
such design changes (at substantial variance from the intended design developed by
t e Engineer), if effected and incorporated into the project documents by the
ngineer, shall be considered as Supplementary Task(s) to the Engineer's Scope of
ervice and compensated for accordingly.
10. Indemnification: Engineer shall indemnify and hold harmless Client up to the amount
f this contract fee (for services) from loss or expense, including reasonable attorney's
f es 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
xpense, including reasonable attorney's fees, for claims for personal injuries
( ncluding death) or property damage arising out of the sole negligent act, error
mission of Client.
In the event of joint or concurrent negligence of Engineer and Client, each shall bear
t iat portion of the loss or expense that its share of the joint or concurrent negligence
ears to the total negligence (including that of third parties), which caused the
personal injury or property damage.
either Client nor Engineer shall be liable to the other party for special, incidental or
)nsequential damages, including, but not limited to loss of profits, revenue, use of
ipital, claims of customers, cost of purchased or replacement power, or for any other
iss of any nature, whether based on contract, tort, negligence, strict liability or
therwise, 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
xperience and qualifications and represent his /her judgment as a design
professional familiar with the construction industry, but Engineer cannot and does
of guarantee that proposal, bids or the Construction Cost will not vary from opinions
f probable construction cost prepared by him /her. If prior to the Bidding or
egotiating Phase, Client wishes greater accuracy as to the Construction Cost, the
lient shall employ an independent cost estimator Consultant for the purpose of
btaining a second construction cost opinion independent from Engineer.
12. Oovernina Law & Dispute Resolutions: This Agreement shall be governed by and
clonstrued in accordance with Articles previously set forth by (Item 9 of) this
4
reement, together with the laws of the State of Indiana.
ny claim, dispute or other matter in question arising out of or related to this
Agreement, which cannot be mutually resolved by the parties of this Agreement,
hall be subject to mediation as a condition precedent to arbitration (if arbitration is
greed 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
ut 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
me 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
Lie 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
emand for arbitration but, in such event, mediation shall proceed in advance of
arbitration or legal or equitable proceedings, which shall be stayed pending
ediation for a period of 60 days from the date of filing, unless stayed for a longer
eriod by agreement of the parties or court order.
ie parties shall share the mediator's fee and any filing fees equally. The mediation
all be held in the place where the Project is located, unless another location is
utually agreed upon. Agreements reached in mediation shall be enforceable as
ttlement agreements in any court having jurisdiction thereof.
13. Successors and Assi ns: The terms of this Agreement shall be binding upon and inure
w the benefit of the parties and their respective successors and assigns: provided,
owever, that neither party shall assign this Agreement in whole or in part without
Me prior written approval of the other.
14. Waiver of Contract Breach: The waiver of one party of any breach of this Agreement or
me 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
eemed to waive any future breaches of this Agreement and shall not be construed
tp be a waiver of any provision, except for the particular instance.
15. Entire Understandinci of A reement: This Agreement represents and incorporates the
ntire 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
t rms of this Agreement.
5
16. Amendment: This Agreement shall not be subject to amendment unless another
i istrument is duly executed by duly authorized representatives of each of the parties
nd 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
i valid in the particular state, country or jurisdiction and the rights or obligations of
t e parties hereto shall be construed and enforced accordingly.
18. Force Ma'eure: Neither Client nor Engineer shall be liable for any fault or delay caused
Ely any contingency beyond their control including but not limited to acts of God,
wars, strikes, walkouts, fires, natural calamities, or demands or requirements of
overnmental agencies.
19. ubcontracts: Engineer may subcontract portions of the work, but each subcontractor
ust 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
overnmental authorities having jurisdiction over the Project. Client shall pay costs
( ncluding Engineer's employee salaries, overhead and fee) incident to any effort by
ngineer toward assisting Client in such access, permits or approvals, if Engineer
erforms such services.
21. Designation of Authorized Representative: Each party (to this Agreement) shall
esignate 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
f rst class postage affixed, and addressed to the party to whom such notice is directed
t such party's place of business or such other address as either party shall hereafter
f rnish 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
ave 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
cut 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
rofesslonaI engineering services rendered on this project as made part of this
greement. Such causes included but are not limited to the Engineer's negligence,
rrors, omissions, strict liability or breach of contract. It is intended that this limitation
1*1
ly to any and all liability or cause of action however alleged or arising, unless
�rwise prohibited by law.
24. Client's Responsibilities: The Client agrees to provide full information regarding
requirements for and about the Project, including a program which shall set forth the
Client's objectives, schedule, constraints, criteria, special equipment, systems and site
requirements.
ie Client agrees to furnish and pay for all legal, accounting and insurance
iunseling services as may be necessary at any time for the Project, including
editing services which the Client may require to verify the Contractor's Application
r Payment or to ascertain how or for what purpose the Contractor has used the
oney paid by or on behalf of the Client.
he 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
mployees and agents of any of them from and against any and all claims, suits,
emands, 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
f om the foregoing are Losses arising out of the preparation or approval of maps,
rawings, opinions, reports, surveys, change orders, designs, or specifications, and
me giving of or failure to give directions by the Engineer, its consultants, and the
gents 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
t e Engineer the required certificate of insurance.
he Client further agrees to require the Contractor to name the Engineer, its agents
nd consultants as additional insureds on the Contractor's policy or policies of
omprehensive or commercial general liability insurance. Such insurance shall include
roducts and completed operations and contractual liability coverages, shall be
rimary and noncontributing with any insurance maintained by the Engineer or its
gents and consultants, and shall provide that the Engineer be given thirty days,
nqualified 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
Me Engineer, its employees, agents, and consultants from and against any and all
Losses which would have been indemnified and insured against by the Contractor,
ut were not.
hen Contract Documents prepared under the Scope of Services of this contract
quire insurance(s) to be provided, obtained and /or otherwise maintained by the
mtractor, the Client agrees to be wholly responsible for setting forth any and all
ch insurance requirements. Furthermore, any document provided for Client review
the Engineer under this Contract related to such insurance(s) shall be considered
sample insurance requirements and not the recommendation of the Engineer.
VA
lient agrees to have their own risk management department review any and all
surance requirements for adequacy and to determine specific types of insurance(s)
squired for the project. Client further agrees that decisions concerning types and
mounts of insurance are specific to the project and shall be the product of the Client.
s such, any and all insurance requirements made part of Contract Documents
repared by the Engineer are not to be considered the Engineer's recommendation,
id 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
ave 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
( ncluding reasonable attorneys' fees and cost of defense) for injury or loss arising or
allegedly arising from errors, omissions or inaccuracies in documents or other
i iformation provided by the Client to the Engineer.
26. Payment: Client shall be invoiced once each month for work performed during the
receding period. Client agrees to pay each invoice within thirty -five (35) days of its
receipt. 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 anyjudgment 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
f (lowing clause in the construction contract documents and the Client agrees not to
modify or delete it:
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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 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 "Indemnities ") from and against any
such loss, expense, damage or injury, including attorneys' fees and costs that
the Indemnitees may sustain as a result of such claims.
J b Site Safety/Supervision & Construction Observation: The Engineer shall neither
ave 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
tie work efficiently with his /her best skill and attention; and that the Contractor shall
e solely responsible for the means, methods, techniques, sequences and procedures
f 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
Mat 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
s all have no authority to stop the work of the Contractor or the work of any
s ibcontractor on the project.
then construction observation services are included in the Scope of Services, the
ngineer shall visit the site at intervals appropriate to the stage of the Contractor's
peration, or as otherwise agreed to by the Client and the Engineer to: 1) become
enerally familiar with and to keep the Client informed about the progress and
uality of the Work; 2) to strive to bring to the Client's attention defects and
eficiencies in the Work and; 3) to determine in general if the Work is being
erformed in a manner indicating that the Work, when fully completed, will be in
-cordance with the Contract Documents. However, the Engineer shall not be
!quired to make exhaustive or continuous on -site inspections to check the quality or
uantity of the Work. If the Client desires more extensive project observation, the
lient shall request that such services be provided by the Engineer as Additional and
ipplemental Construction Observation Services in accordance with the terms of this
greement.
The Engineer shall not be responsible for any acts or omissions of the Contractor,
s bcontractor, 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
ork in accordance with the Contract Documents or any applicable laws, codes, rules
E
r regulations.
/hen 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
uties, shall not thereby render itself liable personally and is, to the maximum extent
ermitted by law, relieved from all liability for any damage that may accrue to
ersons or property by reason of any act or omission in the discharge of its duties.
ny suit brought against the Engineer which involve the acts or omissions performed
y it in the enforcement of any provisions of the Client's rules, regulation and /or
rdinance shall be defended by the Client until final termination of the proceedings.
he Engineer shall be entitled to all defenses and municipal immunities that are, or
,ould be, available to the Client.
29. Insurance and Indemnification: The Engineer and the Client understand and agree
mat 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
ontractor's failure to provide the Client with the requisite certificates of insurance
s all 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
ntities 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
old /mildew, asbestos, asbestos products, polychlorinated biphenyl (PCB) or other
t xic /hazardous /pollutant type substances.
June 13
gt &c -i n
rthermore, Client understands that the presence of mold /mildew and the like are
Oults of prolonged or repeated exposure to moisture and the lack of corrective
:ion. Client also understands that corrective action is an operation, maintenance
d repair activity for which the Engineer is not responsible.
- INDIANA
modified City of South Bend
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