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HomeMy WebLinkAbout6C1C c 1) SpUTg A Department of Community Investment Memorandum September 12, 2013 To: Redevelopment Commission FROM: David Relos, Economic Resources SUBJECT: Resolution No. 3155 & Addendum to the Master Agency Agreement Crooked Ewe Sidewalk Project This Resolution and Agency Agreement are to support the redevelopment of the old VFW property along the 1000 block of Lincoln Way East (LWE) into the Crooked Ewe Brewery & Ale House. For public safety measures, this project will install new sidewalk, curbing, and two approaches along the north side of LWE. Currently there are no sidewalks or curbing along the parking area fronting LWE. This project will set back the sidewalk so it no longer runs adjacent to the street, adds sidewalk and two approaches along the parking area to better define entrances / exits, and installs a 6" curb along the front of the property. To facilitate this project, also attached is a Professional Services Agreement from Christopher Burke Engineering, to provide a topographic and related surveys, and to design and complete bid specifications so the project can be bid, in a not -to- exceed amount of $9,500, which is part of the overall budget amount set out below. Staff requests approval of Resolution No. 3155 and Addendum to the Master Agency Agreement, in a not -to- exceed amount of $40,000, and the Professional Services Agreement with Christopher Burke Engineering in an amount not -to- exceed of $9,500. 227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 1 P: 574 - 235 -9371 1 FAX: 574- 235 -9021 1 SOUTHBENDIN.GOV RESOLUTION NO. 3155 RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION APPROVING AND AUTHORIZING THE EXECUTION OF AN ADDENDUM TO THE MASTER AGENCY AGREEMENT (Crooked Ewe Sidewalk Project) WHEREAS, effective January 1, 2013, the South Bend Department of Redevelopment, acting by and through its Redevelopment Commission (the "Commission ") and the South Bend Board of Public Works (the "BPW ") entered into a Master Agency Agreement which authorized the BPW to act as agent for and on behalf of the Commission for certain projects during 2013; and WHEREAS, pursuant to the Master Agency Agreement, the Commission desires to add the Crooked Ewe Sidewalk Project to the Master Agency Agreement by way of this Addendum. NOW, THEREFORE, BE IT RESOLVED by the South Bend Redevelopment Commission as follows: Section 1. The Commission hereby approves the Addendum to Master Agency Agreement Crooked Ewe Sidewalk Project and hereby authorizes its execution in substantially the form attached hereto with such changes as the Commission may deem necessary or appropriate upon the advice of counsel, said execution thereof to be conclusive evidence of the Commission's approval of such changes. The Clerk is hereby directed to file a copy of the Addendum with the BPW. Section 2. This Resolution shall be in full force and effect after its adoption by the Commission. Section 3. Commission staff members are authorized to execute on behalf of the Commission any documents necessary to carry out the intent of this resolution. ADOPTED at a meeting of the South Bend Redevelopment Commission held on September 12, 2013, at 9:30 a.m., in Room 1308, County -City Building, South Bend, Indiana 46601. CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT South Bend Redevelopment Commission ATTEST: South Bend Redevelopment Commission ADDENDUM TO MASTER AGENCY AGREEMENT (Crooked Ewe Sidewalk Project) This Addendum to Master Agency Agreement (this "Addendum "), made and entered into as of the 12`n day of September, 2013, by and between the South Bend Department of Redevelopment, acting by and through its Redevelopment Commission (the "Commission ") and the City of South Bend, Indiana, a municipal corporation duly organized and existing pursuant to the laws of the State of Indiana, acting by and through its Board of Public Works (the "BPW ") for purposes of the Commission designating the BPW to act as the Commission's agent to undertake the Crooked Ewe Sidewalk Project (the "Project`). WHEREAS, effective January 1, 2013, the Commission and the BPW entered into a Master Agency Agreement which authorized the BPW to act as agent for and on behalf of the Commission for certain projects during 2013; and WHEREAS, pursuant to the Master Agency Agreement, the Commission desires to add the Crooked Ewe Sidewalk Project to the Master Agency Agreement by way of this Addendum. NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the BPW and the Commission agree as follows: I. The Commission hereby empowers and appoints the BPW, pursuant to the Master Agency Agreement, to act as the Commission's agent for the limited purpose of contracting for and managing the completion of the Project, the scope of said Project being more specifically described in "Exhibit A ", attached hereto and made a part hereof. 2. All of the terms and conditions of the Master Agency Agreement shall control this appointment and this Addendum shall be attached to the Master Agency Agreement. 3. Commission members are authorized to execute on behalf of the Commission any documents necessary to carry out the intent of this Addendum. IN WITNESS WHEREOF, the undersigned execute this Addendum to Master Agency Agreement to be effective as of the date first written above. ATTEST: South Bend Redevelopment Commission CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT South Bend Redevelopment Commission CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Gary Gilot, President Kathryn Roos, Member David Relos, Member Mike Mecham, Member Mark Neal, Member ATTEST: Linda Martin, Clerk Exhibit "A" Crooked Ewe Sidewalk Project Proiect Scope and Description: Installation of new sidewalk, curbing, and approaches along the old VFW site in the 1000 block of LWE to support the redevelopment of the site into the Crooked Ewe. Budget: $40,000 smarm: rm a id 1fD}9p�►L971d !BLl9Yaa/ "S* wwM Ina9 wNHNR61 suing AJ �ar�sjll 1 1® lOYB► N19wY Wro@ Mtt , *N'p+d i3$ 183 Mei!/wl�I1 L10� ® palooap �r , Z �• ma ro oN$ c m a UVI,zu I­N k In W C) 0 m C) C) O O Lij _0 O 0 0 C) 4_1 (D CID E cu U_ (D :tf LL Christopher B. Burke Engineering, LLC 13 220 W. Colfax Ave. Sul(e 500 South Bend, IN 46601 574.282.8001 chhel- in.com September 6, 2013 David Relos City of South Bend, Department of Community Investment 14th Floor County -City Building South Bend, IN 46601 Subject: Crooked Ewe Sidewalk Project (113 -041) Professional Services Proposal Dear Mr. Relos: Christopher B. Burke Engineering, LLC ( CBBEL) is pleased to provide this proposal for professional engineering services related to the Crooked Ewe Sidewalk Project in the City of South Bend. The following is our understanding of the assignment, scope of services, and estimated fee in support of the project. UNDERSTANDING OF THE ASSIGNMENT CBBEL understands the City is seeking design assistance in the development of quote documents for the construction of curb, drive approaches, and sidewalk along the frontage of the future Crooked Ewe Brewery and Ale House. Services to be provided by CBBEL for this work have been identified as follows: Task 1 - Survey A topographic survey to supplement existing data for the project area will be performed by a subconsultant (JPR). A utility locate with relevant utilities will be conducted so the utilities are included in the survey. Upon final design, legal descriptions and parcel plats will be prepared by JPR for the new right of way and an ingress and egress easement to access the City's River Crossing #2. The proposal from JPR is attached to this proposal as an exhibit. Task 2 - Design / Quote Assistance CBBEL staff will design and prepare final quote documents for the project. Plans and specifications will be prepared in accordance with City Standards and Specifications. Specifications will be developed utilizing standard specifications provided by the City in addition to CBBEL standard specifications. Applicable conflicts will be brought to City attention. INDOT Permitting is anticipated and will be coordinated through the City's Division of Engineering. Crooked Fwe Sidewalk Proles t Sepfeinbrr 6. 101 3 19 . RI 30440.00000 Page I CBBEL staff will provide an opinion of probable cost based on experience with similar projects and cost information provided by the City. CBBEL will send up to five quote requests with the full quote documents to contractors chosen by the City. CBBEL will assist the City in conducting a pre -quote conference at the sites. CBBEL will address contractor questions and prepare and issue addenda. Following quote opening, CBBEL will compile and certify quote tabulation sheets and provide a contract award recommendation to the Owner. It is assumed that City staff or representatives will coordinate the quote collection, quote opening, and the preparation of the construction agreement. R[4:L4r19� Task 1 will be completed within 10 days from the Notice to Proceed. Task 2 will be completed within 10 days of completion of Task 1. We have estimated the total fee for these services to be $9,500. If the value of work accomplished exceeds $9,500, CBBEL shall assess the remaining work and shall notify you, in writing, of the revised compensation and schedule before continuing with the services. No additional work will be performed until a written contact amendment has been approved by both parties. 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 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 original. We appreciate the opportunity to submit this proposal and look forward to working with you on this project. Please contact me at the number listed above or Jason Durr at 574- 282 -8001 if you have any questions. Sincerely, 0 Jon D. Stolz, P.E. Managing Vice Presid t Crooked Ewe Sidewalk Project September 6,1013 19.R1 30440.00000 Page 2 THIS PROPOSAL, ESTIMATED FEE, SCHEDULE OF CHARGES FOR PROFESSIONAL SERVICES, AND GENERAL TERMS & CONDITIONS FOR THE CROOKED EWE SIDEWALK PROJECT IS ACCEPTED BY THE CITY OF SOUTH BEND, INDIANA - DEPARTMENT OF PUBLIC WORKS: The above contract is accepted this Subject to the following conditions: BOARD OF PUBLIC WORKS Gary A. Gilot - President Member Member Member Member ACCEPTANCE day of ATTEST: Linda M. Martin - Clerk Enclosures: Standard Charges for Professional Services General Terms and Conditions - modified for City of South Bend 2013 Crooked Ewe Sidewalk Project September 6, 2013 19R130440.00000 Nge 3 C B � Personnel EngineerVI ..................... ............................... EngineerV ...................... ............................... EngineerIV ..................... ............................... EngineerIII ..................... ............................... Engineer1/ II .................... ............................... Resource Planner V ..... ............................... Resource Planner IV .... ............................... Resource Planner III .... ............................... Resource Planner 1/ II ... ............................... Engineering Technician IV ....................... Engineering Technician III ....................... Engineering Technician 1 /II ...................... CADII ............................... ............................... CADI ................................. ............................... GIS Specialist III ............. ............................... GIS Specialist 1 /II ........... ............................... Environmental Resource Specialist V.. Environmental Resource Specialist IV. Environmental Resource Specialist III.. Environmental Resource Specialist 1 /II Environmental Resource Technician ... Administrative .............. ............................... Engineering Intern ...... ............................... Information Technician 1 /11 ...................... Christopher B. Burke Engineering, LLC Standard Charges for Professional Services, January 2013 dA rl ..... 216 .....173 .....142 ..... 129 .....105 .....142 .....129 .....112 129 112 114 101 112 .......142 .......129 .......112 ..........99 ..........93 55 Direct Costs Outside Copies, Blueprints, Messenger, Delivery Services, Mileage ....................... Cost + 12% "Charges include overhead and profit Christopher B. Burke Engineering, LLC reserves the right to increase these rates and costs by 5% after December 31, 2013. Crooked twe Sidewalk Project 19 .R 130440.00000 September 6, 2013 Page 4 ICIMI B Christopher B. Burke Engineering, LLC General Terms and Conditions Relationship Between Engineer and Client: Christopher B. Burke Engineering, LLC (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. hC anaes: 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 Crooked Ewe Sidewalk Project September 6. 2013 19A 130440.000W Page S necessary to maintain continuity and for the resumption of the services upon expiration of the Suspension of Services Order. Engineer will not be obligated to provide the same personnel employed prior to suspension, when the services are resumed, in the event that the period of suspension is greater than thirty (30) days. 5. Termination: This Agreement may be terminated by either party upon thirty (30) days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. This Agreement may be terminated by Client, under the same terms, whenever Client shall determine that termination is in its best interests. Cost of termination, including salaries, overhead and fee, incurred by Engineer either before or after the termination date shall be reimbursed by Client. 6. Documents Delivered to Client: Drawings, specifications, reports, and any other Project Documents prepared by Engineer in connection with any or all of the services furnished hereunder shall be delivered to the Client for the use of the Client. Engineer shall have the right to retain originals of all Project Documents and drawings for its files. Furthermore, it is understood and agreed that the Project Documents such as, but not limited to reports, calculations, drawings, and specifications prepared for the Project, whether in hard copy or machine readable form, are instruments of professional service intended for one -time use in the construction of this Project. These Project Documents are and shall remain the property of the Engineer. The Client may retain copies, including copies stored on magnetic tape or disk, for information and reference in connection with the occupancy and use of the Project. When and if record drawings are to be provided by the Engineer, Client understands that information used in the preparation of record drawings is provided by others and Engineer is not responsible for accuracy, completeness, nor sufficiency of such information. Client also understands that the level of detail illustrated by record drawings will generally be the same as the level of detail illustrated by the design drawing used for project construction. If additional detail is requested by the Client to be included on the record drawings, then the Client understands and agrees that the Engineer will be due additional compensation for additional services. It is also understood and agreed that because of the possibility that information and data delivered in machine readable form may be altered, whether inadvertently or otherwise, the Engineer reserves the right to retain the original tapes /disks and to remove from copies provided to the Client all identification reflecting the involvement of the Engineer in their preparation. The Engineer also reserves the right to retain hard copy originals of all Project Documentation delivered to the Client in machine readable form, which originals shall be referred to and shall govern in the event of any inconsistency between the two. The Client understands that the automated conversion of information and data from the system and format used by the Engineer to an alternate system or format cannot be accomplished without the introduction of inexactitudes, anomalies, and errors. In the event Project Documentation provided to the Client in machine readable form is so converted, the Client agrees to assume all risks associated therewith and, to the fullest extent permitted by law, to hold harmless and indemnify the Engineer from and against all claims, liabilities, losses, Crooked Ewe Sidewalk Project September6, 2013 19.R 130"".00000 Page 6 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. 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. 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, Crooked Ewe Sidewalk Piolect September 6, 2113 1 9 R 1 30440.00000 Page 7 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. Neither Client nor Engineer shall be liable to the other party 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 judgment 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. Any 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, shall be subject to mediation as a condition precedent to arbitration (if arbitration is agreed upon by the parties of this Crooked Ewo Sidewalk Projr,rl September 6, 2013 19 R 130440 00000 Page 8 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 Crooked Ewe Sidewalk Project September 6, 7013 19 .R 130440.00000 Page 9 containing the particular provisions held to be invalid in the particular state, country or jurisdiction and the rights or obligations of the parties hereto shall be construed and enforced accordingly. 18. Force Majeure: Neither Client nor Engineer shall be liable for any fault or delay caused by any contingency beyond their control including but not limited to acts of God, wars, strikes, walkouts, fires, natural calamities, or demands or requirements of governmental agencies. 19. Subcontracts: Engineer may subcontract portions of the work, but each subcontractor must be approved by Client in writing. 20. Access and Permits: Client shall arrange for Engineer to enter upon public and private property and obtain all necessary approvals and permits required from all governmental authorities having jurisdiction over the Project. Client shall pay costs (including Engineer's employee salaries, overhead and fee) incident to any effort by Engineer toward assisting Client in such access, permits or approvals, if Engineer performs such services. 21. Designation of Authorized Representative: Each party (to this Agreement) shall designate one or more persons to act with authority in its behalf in respect to appropriate aspects of the Project. The persons designated shall review and respond promptly to all communications. received from the other party. 22. Notices: Any notice or designation required to be given to either party hereto shall be in writing, and unless receipt of such notice is expressly required by the terms hereof shall be deemed to be effectively served when deposited in the mail with sufficient first class postage affixed, and addressed to the party to whom such notice is directed at such party's place of business or such other address as either party shall hereafter furnish to the other party by written notice as herein provided. 23. Limit of Liability: The Client and the Engineer have discussed the risks, rewards, and benefits of the project and the Engineer's total fee for services. In recognition of the relative risks and benefits of the Project to both the Client 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 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 (.rooked Ewe Sidewalk Project September 6, 2013 19 . R 130440.00000 Page 10 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 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 Crooked L Ne Sidewalk P,oject September 6, 2013 19 .R 1 30440 00000 Page I I 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. Pam • Client shall be invoiced once each month for work performed during the preceding 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 any judgment 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 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. 28. Job Site Safety /Supervision & Construction Observation: The Engineer shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences of procedures, or for safety precautions and programs in connection with the Work since they are solely the Contractor's rights and responsibilities. The Client agrees that the Crmked Ewe SdewA r'mled September 6, 2013 17.R 130440.00OW Page 12 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, 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 Crooke) Ewe Sidewdlk PioieU September 6, 2013 roR 130440JA)000 page 13 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. June 13.2005- INDIANA gt &c- indiana modified City of South Bend Crooked Ewe Sidewalk Protect September 6, 2013 19 .R 130440.00000 Page 14