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HomeMy WebLinkAboutRESOLUTION - 30-94 - 6/14/1994 - AGREEMENT/CHRISTOPHER B. BURKE ENGINEER.RESOLUTION NO. 30-94 A RESOLUTION AUTHORIZING THE VILLAGE PRESIDENT AND VILLAGE CLERK TO EXECUTE AN AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND CHRISTOPHER B. BURKE ENGINEERING, LTD. TO PROVIDE ENGINEERING SERVICES FOR THE FEMA FLOODPLAIN AND FLOODWAY MAP REVISION NOW, THEREFORE, BE IT RESOLVED by the President and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows: Section 1: That the Village President be and is hereby authorized to sign the attached documents marked: PROFESSIONAL SERVICES FEMA Floodplain and Floodway Map Revision Tributary D of the West Branch of Salt Creek Village of Elk Grove Village a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is authorized to attest said documents upon the signature of the Village President. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. PASSED this 14th day of June 1994. APPROVED this 14th day of June 1994. Dennis J. Gallitano Village President ATTEST: Patricia S. Smith Village Clerk By: Ann I. Head Deputy Village Clerk CHRISTOPHER B. BURKE ENGINEERING, LTD. 9575 West Higgins Road Suite 600 Rosemont, Illinois 60018 TEL(708)823-0500 FAX(708)823-0520 May 26, 1994 Village of Elk Grove Village 901 Wellington Avenue Elk Grove Village, IL 60007 Attention: Al Boffice, P.E., Village Engineer Subject: Proposal for Professional Services - FEMA Floodplain and Floodway Map Revision for Tributary D of the West Branch of Salt Creek, Village of Elk Grove Village Dear Al: It was our pleasure to meet with you on Wednesday, May 18, 1994 to discuss the Village's desire to continue with an existing application for a floodplain and floodway map revision from the Federal Emergency Management Agency (FEMA) for a portion of Tributary D to the West Branch of Salt Creek within the Village. In response to your request, Christopher B. Burke Engineering, Ltd. (CBBEL) is pleased to present this proposal to provide professional engineering services related to submitting the required data for the map revision. Included below is our Understanding of the Assignment, Scope of Services and Estimate of Fee for the project. UNDERSTANDING OF THE ASSIGNMENT It is our understanding from discussions with you and a review of the information contained in the Village's files that development has occurred on Tributary D of the West Branch of Salt Creek in the Villages of Elk Grove Village and Schaumburg. The development took place in the time frame from the late 1970's to the mid -1980's along the reach of Tributary D from Plum Grove Road downstream (east and north) to the confluence with the main stem of the West Branch of Salt Creek. The Village of Elk Grove Village has pursued a map revision from FEMA in connection with this since the early days of development in that area. The developer's engineer, Henderson and Bodwell, has performed certain tasks in an attempt to obtain the map revision but has been unsuccessful. However, as things stand now, FEMA has issued a letter enumerating certain additional tasks, which need to be performed as a minimum, in order to get the requested map revision. 115 West Washington Suite 1368 South Indianapolis, Indiana 46204 TEL(317)266-8000 FAX(317)632-3306 130 West Main Street Suite 12 Fort Wayne, Indiana 46802 TEL(219)422-9395 FAX(219)422-3159 The Village intends to continue the application process for the map revision by responding to the current FEMA data request. CBBEL will utilize existing data to the extent possible and determine additional data requirements while preparing the response to FEMA on the Village's behalf. Our preliminary review of the files indicate that a hydraulic model was never submitted to FEMA in connection with this map revision request and that detailed topographic data for the area may be available in the form of as -built subdivision plans from the developer's or the Village's files. At this time, the status of the homes that were constructed as part of the development is unclear with regards to the floodplain and floodway. As part of our services, you want us to determine the status of these homes. SCOPE OF SERVICES We have broken down the Scope of Services that, in our opinion, need to be performed into a series of tasks as outlined below. Task 1 - Data Collection and Review: In this task, we will research both the Village of Elk Grove Village's files and the files of the developer's engineer, Henderson and Bodwell and assemble all pertinent documents. At this time we will inventory the information available and compare that to what is required to adequately address the FEMA data request and determine what additional information may need to be developed. Task 2 - Survey: Our preliminary review of the files of Henderson and Bodwell indicate that information may be available to determine both the without -project and with -project conditions modeling. However, until that material is obtained by CBBEL and reviewed in detail, we will not know the nature and extent of the data available. We are providing this task as a contingency against the need for additional survey information from the field for channel and overbank areas. Task 3 - Hydraulic Modeling: We will use the current regulatory FIS model as a starting point in developing a without -project and with -project conditions water surface profiles as required by FEMA. Upon development of the model we will be able to assess the status of the lots and homes for the various subdivisions built along Tributary D and then determine how to proceed with the FEMA map revision request. Task 4 - Coordination of Results: Upon completion of Task 3, CBBEL will meet with Village staff to present the results and impacts of our technical analysis. We will also outline the options available to the Village and how best to finalize the data submittal to FEMA. Task 5 - FEMA Submittal: We will assemble, according to our understanding of the FEMA data requirements, a complete package of information for submittal to FEMA. 2 This material includes the FEMA Certification forms currently required for map revisions of this type and the hydraulic modeling developed in Task 3. Task 6 - Coordination and Meetings: We believe that this map revision could potentially require a substantial number of coordination meetings between FEMA and the Village in order to successfully and fairly treat the specifics of this situation. We have identified this as a separate task due the uncertain nature of the number of meetings involved. ESTIMATE OF FEE We estimate, based on experience with similar type projects, that the above Scope of Services can be performed on a time and materials basis for estimated total fee of approximately $18,000. The $18,000 estimate is broken down by task as follows: Task 1 - Data Collection $ 1,200 Task 2 - Survey $ 4,000 Tasks 3 & 4 - Hydraulic Modeling & Coordination of Results $ 9,800 Task 5 - FEMA Submittal $ 1,500 Task 6 - Meetings and Coordination $ 1,500 TOTAL $18,000 We propose to establish our contract in accordance with the attached General Terms and Conditions and to bill you on a time and materials basis in accordance with the attached Schedule of Charges for Professional Engineering Services. The General Terms and Conditions are expressly incorporated into and are an integral part of this contract for professional services. We look forward to continuing our good working relationship with the Village of Elk Grove Village. If you have any questions, please do not hesitate to call. Ve,,,, ly yours, V f Christopher B. Burke, Ph.D., P.E. President JJW/DWG/pjb ACCEPTED FOR THE VILLAGE OF ELK GROVE VILLAGE BY: Dennis J. Gallitano TITLE: Village President DATE: June 14, 1994 PR600.526 ATTEST: Patricia S. Smith Village Clerk By: Ann I. Head Deputy Village Clerk 0 CHRISTOPHER B. BURKE ENGINEERING, LTD. STANDARD CHARGES FOR PROFESSIONAL SERVICES JANUARY, 1994 Personnel Charges* /Hr Principal 115 Senior Hydraulic Engineer 95 Senior Mechanical Engineer 95 Senior Structural Engineer 84 Senior Civil Engineer 84 Senior Water Resources Engineer 90 Water Resources Engineer 68 Civil Engineer 63 Mechanical Engineer 63 Junior Engineer 40 Engineering Technician 58 Technician 47 Geologist 50 Wetland Biologist 47 Senior Draftsperson 50 Draftsperson 47 Accounting 50 Word Processor 42 Secretary 39 Reproduction Costs Outside Copies, Blueprints, Messenger and Delivery Services Cost + 10% Professional Land Surveyor 80 2 -Man Survey Crew 90 3 -Man Survey Crew 110 * Charges include overhead and profit A surcharge of fifty (50) percent will be added to hourly rates for expert witness testimony and/or for participation at hearings, depositions, etc. Christopher B. Burke Engineering, Ltd. reserves the right to increase these rates and costs by 5% after December 31, 1994. 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 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. 2. Responsibility of the Engineer: Engineer will render engineering services in accordance with generally accepted and currently recognized engineering practices and principles. Engineer makes no warranty, either express or implied, with respect to its services. 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 occurrence of costs allocable to the services covered by the order. Client, however, shall pay all costs associated with suspension including all costs necessary to maintain continuity and the staff required to resume the services upon expiration of the suspension of work order. Engineer will not be 11 obligated to provide the same personnel employed prior to suspension when the services are resumed, in the event the period of any suspension exceeds thirty (30) days. Client will reimburse Engineer for the cost of such suspension and remobilization. 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. 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, 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 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. 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 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. 10. Indemnification: Engineer shall indemnify and hold harmless Client up to the amount of its net fee for the services from loss or expense, including reasonable attorney's fees for claims for personal injury (including death) or property damage arising out of the sole negligent act, error or omission of Engineer. 01 Client shall indemnify and hold harmless Engineer, up to the same amount that Engineer undertakes to indemnify the Client 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 opinions of probable Project Construction Cost provided for herein are to be made on the basis of his experience and qualifications and represent his best 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. 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: This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. 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, acknowledgements 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 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 5 mail with sufficient first class postage affixed, and addressed to the parry 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. Risks have been allocated such that the Client agrees that to the fullest extent permitted by law, the Engineer's total liability to the Client for any and all injuries, claims, losses, expenses, damages or claim expenses arising out of this agreement from any cause or causes, shall not exceed the total amount of the contract. Such causes included but are not limited to the Engineer's negligence, errors, omissions, strict liability, breach of contract or breach of warranty. 24. Client's Responsibilities: 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 further agrees to require the Contractor to name the Engineer, its agents and consultants 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. 25. 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 0 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 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. March 2, 1993 PERM TERM.CON Yl