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HomeMy WebLinkAboutStormwater Master Plan C CHRISTOPHER B. BURKE ENGINEERING, LTD. PNC Confer Suite 1368 South 115 W. Washington St Indianapolis. Ind 46204 TEL (317) 2668000 FAX (317) 632-3306 TOLL FREE (888) 463 -1974 May 11, 2011 Mr. Bruce Wright, President City of Jeffersonville Drainage Board 500 Quartermaster Court Jeffersonville, IN 47130 Attention: Andy Crouch, P.E. City Engineer Deb Ashack City Stormwater Coordinator Subject: City of Jeffersonville Stormwater Master Plan Professional Services Proposal Dear Mr. Crouch and Mrs. Ashack: Christopher B. Burke Engineering, Ltd. (CBBEL) is pleased to provide this proposal for professional engineering and planning services related to the development of a Stormwater Master Plan for the City of Jeffersonville (City). The following is our anticipated scope of services, timeline, and estimated fee in support of these services. UNDERSTANDING OF THE ASSIGNMENT As we understand it, the City through the Drainage Board, wishes to update the 1997 Stormwater Master Plan to reflect changes in the City and updated priorities for stormwater infrastructure management. These changes include annexation of a substantial land area previously under the jurisdiction of Clark County; on -going problems related to stormwater runoff and localized flooding: responsibilities as a Municipal Separate Storm Sewer System (MS4) community; and related issues of a consent decree from the US EPA to address the Combined Sewer Overflow (CSO) problems through a Long Term Control Plan (LTCP). With the exception of new water quality sampling which will be performed as part of this Master Plan study, the data presented and recommendations made in this Master Plan will be based on best available data. It is our further understanding that Jacobi, Toombs and Lanz (JTL), Christopher B. Burke Engineering Ltd. City of Jeffersonville: Stormwater Master Plan OPNS01.P110021 Page 1 of 7 under a separate contract with the City/Drainage Board, will assist CBBEL in various tasks throughout this project. CBBEL has agreed to provide the professional engineering and planning services needed to prepare the City's Stormwater Master Plan. SCOPE OF SERVICES CBBEL is proposing to prepare the Stormwater Master Plan according to the following 2 -phase approach. Phase 1 is a screening -level analysis of the entire City to characterize the base conditions, identify problems and /or concerns, and prioritize initially- identified potential solutions for stormwater quality and quantity issues. These potential solutions are mapped into targeted study areas for further detailed analysis in Phase 2. A recommended plan, complete with a conceptual layout and cost estimate for each recommended plan component, will be the end result of Phase 2. The outcome of this phased approach is an overall understanding of the problems and a detailed analysis of targeted study areas, resulting in plan components that would effectively address stormwater quality and quantity problems/concerns. Services to be provided by CBBEL include the following tasks: PHASE 1: PROBLEM IDENTIFICATION & PRIORITIZATION Task 1A: Workplan Development and Project Kick -off Meeting CBBEL will develop a project workplan that defines the project approach, including the planning process, schedule, and scale of analysis; roles and responsibilities of the Project Team; communication plan for decision- making and distribution of information; involvement of the Drainage Board, other City Departments, and public/stakeholders. and deliverables, progress reporting, and invoicing process. CBBEL will meet with the Project Team to officially kick -off the project, review the workplan, and agree on its contents. The deliverable for this task includes a copy of the final project workplan. Task 1B: Inventory Development and Problem Identification CBBEL will complete an inventory of the City resources and screening -level analysis to identify problem areas. The following outlines the anticipated steps to complete this task: 1 B -1 Background Research and Information Gathering CBBEL will gather background information from pertinent sources such as meetings with key City staff and the public /stakeholders; review of applicable City plans, codes, GIS data, and data from previous projects and studies; and information collected by IDNR, USGS, and other water resource agencies. To assess water quality, CBBEL will review existing water quality data and conduct a Christopher 8. Burke Engineering Ltd. City of Jeffersonville: Stommvater Master Plan OPN$101P110021 Page 2 of 7 quick baseline investigation of 3 chemical samples, 1 physical habitat evaluation, and 1 biological (macroinvertebrate) sample at key locations throughout the City. The sampling sites will be selected based on input from the Project Team. To complete this sub -task, CBBEL anticipates conducting meetings with the Project Team, Drainage Board, other City Departments, and the public /stakeholders to further solicit input regarding existing problems/concerns and preliminary ideas regarding potential solutions expressed by meeting attendees . The workplan developed in Task 1A will define the number of meetings and the public/stakeholder outreach efforts. The deliverable for this sub -task is a memo summarizing the background research and information gathered. 1 B -2 Data Analysis and Field Investigation CBBEL will complete a baseline hydrologic analysis using the U.S. Army Corp of Engineers (USAGE) computer model HEC -HMS to simulate runoff volume and peak rate at the outlet of major sub - basins covering the City of Jeffersonville and any contributory watershed area. The results of this analysis will assist evaluation and determination of maximum allowable release rates for each sub -basin that can be used to ensure that new development or redevelopment would not increase the runoff potential. The modeling results would also provide the needed input data for determination of pollutant loads and supplemental floodplain analysis. CBBEL will also use USAGE computer model HEC -RAS to supplement the existing Flood Insurance Study (FIS) coverage of flood risk areas along major waterways within the City in order to determine the extent of existing or potential future flooding problems along these waterways. As part of this sub -task, CBBEL will also evaluate the chemical, physical, and biological water quality data gathered in 1 B -1 and compare the results to State water quality standards. To estimate pollutant loading within each watershed defined above, CBBEL will utilize the Long Term Hydrologic Impact Analysis Tool (L -THIA) or similar acceptable tool. CBBEL will conduct a GIS desktop analysis of the data gathered and results of screening -level analysis to determine general location and extent of problems or concerns. A field investigation will be completed to confirm the results of this analysis and to determine the general feasibility of each potential solution. The deliverables for this sub -task are a series of GIS maps that show proposed allowable release rates for each major watershed, the extent of flood risk areas along analyzed streams, water quality data and estimated pollutant loadings, and the desktop analysis and field verification results. 1B-3 Problem Identification and Establishing Project Goals Based on the data and information gathered in Tasks 1B -1 and 1B -2, CBBEL will begin to define the water quality and quantity problems /issues impacting the City. These will al Christopher B. Burke Engineering Ltd. City of Jeffersonville: Stormwater Master Plan OPNa 01 P11002 Page 3of7 include existing as well as future problems/needs. Early potential solutions for each type of problem will be identified. The sustainability of water quality and quantity measures and their overall effect on the City will also be considered. To evaluate these early potential solutions, CBBEL will develop an initial set of criteria for discussion with the Project Team. CBBEL will meet with Project Team to discuss and confirm the water quality and quantity problems; the potential solutions identified by the GIS analysis and field investigation; establish criteria for evaluating potential solutions; and develop goals for the Master Plan. The deliverable for this sub -task is a memo summarizing the problems, the criteria to evaluate solutions, and the Master Plan goals. 1 B -4 Identification and Prioritization of Potential Solutions Based on the evaluation criteria and goals identified in Task 1B-3, CBBEL will prioritize potential solutions into projects, programs, and /or policies. The prioritized potential solutions will be mapped to identify targeted study areas for detailed analysis performed in Phase 2 of this contract. CBBEL will strive to identify promising solutions that provide multiple benefits to the residents of Jeffersonville and the environment, including benefits not directly related to this Master Plan. Such considerations for cost savings to the City, ecological enhancement, green infrastructure promotion, and No Adverse Impact principals are an integral part of the formulation of successful promising solutions. Preliminary, conceptual level costs and a timeframe for detailed study or implementation of each potential solution will be provided. 1B-5 Summary of Findings and Interim Report CBBEL will meet with the Project Team to select targeted study areas for detailed analysis as part of Phase 2 and present a summary of all work completed to date to the Drainage Board. CBBEL will prepare a workplan for Phase 2 of this contract and have it approved by the Project Team before proceeding. The deliverables for this sub -task is an interim report of work completed to date and an agreed upon workplan for Phase 2 of this contract. The contents of the interim report will become an integral part of the final Stormwater Master Plan report. PHASE 2: DETAILED ANALYSIS & DEVELOPMENT OF REPORT Task 2A: Detailed Analysis and Development of Recommended Plan CBBEL will complete a detailed analysis to prioritize and evaluate promising solutions identified in Phase 1. The following outlines the anticipated steps to complete this task: 2A -1 Detailed Analysis of Prioritized Promising Solutions As part of this task, CBBEL will perform a detailed analysis of prioritized potential solutions identified in Phase 1. This detailed analysis may include additional hydrologic or hydraulic modeling or gathering additional water quality samples. The method will vary depending on the target study area. Depending on the findings of Phase 1, the Christopher B. Burke Engineering Ltd. City of Jeffersonvllle: Stormwater Master Plan OPN# 01.P110021 Page 4 of 7 City's immediate needs, and availability of funding within the contract, this task may also include the actual development of updated stormwater ordinance and technical standards that would include green /LID considerations; determination of needed revisions in zoning ordinances to evaluate integration of green infrastructure, stream study prioritization; additional water quality monitoring; development of procedures for integration of stormwater management into Citywide programs, policies, and projects; development of procedures for public/private partnerships; and other similar potential master plan components 2A -2 Selection of Recommended Plan Components As part of this task, CBBEL will evaluate the prioritized promising solutions using a Triple Bottom Line type criterion to identify projects, programs and/or policies with the highest social, economic, and environmental benefit to the City of Jeffersonville. CBBEL will meet with the Project Team to discuss and review the results of the evaluation of promising solutions. The deliverable for this sub -task is a memo summarizing the evaluation results and a listing of recommended plan components along with a proposed implementation plan. 2A -3 Evaluation of Funding Sources and Financing Mechanisms CBBEL will research funding possibilities for the implementation of the recommended plan components. CBBEL will evaluate obligations and commitments identified in the City's stormwater fee structure; identify potential joint projects with neighboring communities; and expbre potential local, state, and federal funding sources especially as they relate to innovative and green solutions to improving water quality and quantity. The deliverable for this sub -task is a memo summarizing funding sources and financing mechanisms. Task 2B: Prepare Master Plan Report CBBEL will summarize the findings of the above noted tasks into a comprehensive report, complete with exhibits, technical results, and appendices or sub - reports in an initial draft, final draft, and final version. The Master Plan will be prepared in 2 formats: as a static paper document with printed exhibits and as dynamic pdf document with expandable maps and tables. CBBEL will meet with the Project Team to review the draft and discuss edits. The final version of the Master Plan will be presented to the Drainage Board. The deliverables of this task are the Master Plan report in MS Word and pdf and GIS shapefiles generated during this planning effort. It is our intent that the project deliverables will be in a format that may easily be incorporated or utilized on the City's website and GIS system, if desired. Christopher B. Burke Engineering Ltd. CIty of Jeffersonville: Stonnwaler Mager Plan OPN# 01.P110021 Page 5 of 7 ESTIMATED SCHEDULE CBBEL anticipates that Phase 1: Problem Identification and Prioritization should be completed in 4 to 6 months and Phase 2: Detailed Analysis and Development of Recommended Plan should be completed in an additional 8 to 12 months. The total contract length is estimated to be 12 to 18 months from the notice to proceed. Adjustments to this schedule may be discussed as part of the development of a detailed workplan in Phase 1. ESTIMATED FEE Based on our current understanding, we estimate that our fee to prepare a Stormwater Master Plan for the City of Jeffersonville as outlined in this contract is: Phase 1: Problem Identification and Prioritization: CBBEL Labor. $ 90,500 Testing Subconsultant: $ 9,000 Direct Expenses': $ 2,500 Phase 2: Detailed Analysis and Development: CBBEL Labor: $114,500 Direct Expenses': $ 2,500 Travel Fee Allotment ": $ 3,000 Contract Total: $222,000 The direct expenses are costs associated with non - travel related expenses in support of this project. Typically, these relate to copying, fees, field expenses, and general non labor related expenses in support of the project. " The Travel Fee Allotment is a fixed fee associated with all travel related costs anticipated for CBBEL staff in support of this project. This fixed fee is the total travel related expense that CBBEL will apply to this project in both labor and direct fees. No additional cost will be charged the City as it relates to travel unless mutually agreed to and amended by both parties. The total CBBEL fee to update the Jeffersonville Stormwater Master Plan would not exceed $222,000. This fee assumes that certain tasks under Phase 1 and Phase 2 will be supported and /or supplemented by efforts from JTL, whose scope of efforts and fees are contained in a separate proposal. Depending on the actual time required to complete our tasks, there is a potential for our total fee to be less than the above estimate. There is also a potential for needing to expend more efforts than anticipated t Christopher B. Burke Engineering Ltd. City of Jeffersonville: Stomlwaler Master Plan OPN# 01.P110021 Page 6 of 7 at this time. However, we will not exceed the current agreed upon estimated fee without your expressed approval. We will bill you monthly, on a time and material basis, for assigned tasks in accordance with our attached standard Charges for Professional Services and establish our contract in accordance with our standard General Terms and Conditions. These General Terms and Conditions are expressly incorporated into and are an integral part of this contract for professional services. A statement will be sent to you every month based on the number of hours of staff involvement and direct expenses incurred in that month and as described above. If, at any time, the City of Jeffersonville determines that it no longer requires the services of CBBEL, this contract will be considered completed. CBBEL would be entitled to reimbursement according only to the actual time and material it has incurred and would have no claims on any remaining unused budget set for this contract. We appreciate the opportunity to provide this proposal. If it meets with your approval, please sign and send a copy back to us as notice to proceed. If you have any questions regarding this proposal or its attachments, please feel free to contact Sheila McKinley or me at (317) 266 -8000. Sincerely, Jon D. Stolz, P.E. Manager, Indiana THIS PROPOSAL, ESTIMATED FEE, SCHEDULE OF CHARGES, AND GENERAL TERMS & CONDITIONS ARE ACCEPTED BY: Jeffersonville Drainage Board 6 ) I - ll =ruce t, Preside . Date -A All/Aitshat ATTEST: Sc. t Attomey Date Attachments: Schedule of Professional Charges General Terms and Conditions OPN# 11-0021.0000 t Christopher B. Burke Engineering Ltd. City of Jeffersonville: Storrnwater Master Plan OPN# 01.P110021 Page 7 or 7 CHRISTOPHER B. BURKE ENGINEERING, LTD. GENERAL TERMS AND CONDITIONS 1. Relationship Between Engineer and Client: Christopher B. Burke Engineering, Ltd. (Engineer) shall serve as Client's professional engineer consultant in those phases of the Project to which this Agreement applies. This relationship is that of a buyer and seller of professional services and as such the Engineer is an independent contractor in the performance of this Agreement and it is understood that the parties have not entered Into any Joint venture or partnership with the other. The Engineer shall not be considered to be the agent of the Client. Nothing contained in this Agreement shall create a contractual relationship with a cause of action In favor of a third party against either the Client or Engineer. Furthemwre, 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 conceming 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. Chancres; Client reserves the right by written change order or amendment to make changes in requirements. amount of work, or engineering time schedule adjustments, and Engineer and Client shall negotiate appropriate adjustments acceptable to both parties to accommodate any changes, if commercially possible. 4. Suspension of Services: Client may, at any time, by written order to Engineer (Suspension of Services Order) require Engineer to stop all, or any part, of the services required by this Agreement. Upon receipt of such an order, Engineer shall immediately comply with its terms and take all reasonable steps to minimize the costs associated with the services affected by such order. Client, however, shall pay all costs Incurred by the suspension. including all costs necessary to maintain continuity and for the 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 1 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 govem 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 altemate 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 attomey'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 fomi. the Client agrees, to the fullest extent permitted by law, to hold harmless and indemnify the Engineer from and against all claims, liabilities, losses, damages, and costs, including but not limited to attorney's fees, arising out of or in any way connected with the modification, misinterpretation, misuse, or reuse by others of the machine readable information and data provided by the Engineer under this Agreement. The foregoing indemnification applies, without limitation, to any use of the Project Documentation on other projects, for additions to this Project, or for completion of this Project by others. excepting only such use as may be authorized. in writing. by the Engineer. 7. Reuse of Documents: All Project Documents including but not limited to reports, opinions of probable costs, drawings and specifications furnished by Engineer pursuant to this Agreement are intended 2 for use on the Project only. They cannot be used by Client or others on extensions of the Protect 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 attomey'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, 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 attomey'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 (lability or otherwise, by reasons of the services rendered under this Agreement. 3 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 hint/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 govemed 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 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 Ole 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, 4 representations, covenants or understandings of any kind. matter or description whatsoever, made by either party to the other except as expressly set forth herein. Client and the Engineer hereby agree that any purchase orders, invoices, confirmations, acknowledgments or other similar documents executed or delivered with respect to the subject matter hereof that conflict with the terms of the Agreement shall be null, void and without effect to the extent they conflict with the terms of this Agreement. 16. Amendment: This Agreement shall not be subject to amendment unless another instrument is duly executed by duly authorized representatives of each of the parties and entitled "Amendment of Agreement ". 17. Severability of Invalid Provisions: If any provision of the Agreement shall be held to contravene or to be invalid under the laws of any particular state, county or jurisdiction where used, such contravention shall not invalidate the entire Agreement, but it shall be construed as if not containing the particular provisions held to be invalid in the particular state, country or jurisdiction and the rights or obligations of the parties hereto shall be construed and enforced accordingly. 18. Force Maieure: Neither Client nor Engineer shall be liable for any fault or delay caused by any contingency beyond their control including but not limited to acts of God. wars. strikes, walkouts. fires. natural calamities, or demands or requirements of governmental agencies. 19. Subcontracts: Engineer may subcontract portions of the work, but each subcontractor must be approved by Client in writing. 20. Access and Permits: Client shall arrange for Engineer to enter upon public and private property and obtain all necessary approvals and permits required from all govemmental authorities having jurisdiction over the Project. Client shall pay costs (including Engineer's employee salaries. overhead and fee) incident to any effort by Engineer toward assisting Client In such access, permits or approvals, if Engineer perform such services. 21. Designation of Authorized Representative: Each party (to this Agreement) shall designate one or more persons to act with authority in its behalf in respect to appropriate aspects of the Project. The persons designated shall review and respond promptly to all communications received from the other party. 22. Notices: Any notice or designation required to be given to either party hereto shall be in writing, and unless receipt of such notice is expressly required by the terms hereof shall be deemed to be effectively served when deposited in the mail with sufficient first class postage affixed. and addressed to the party to whom such notice is directed at such party's place of business or such other address as either party shall hereafter famish 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 5 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 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 insured 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 6 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 Clients consultants and contractors, and the Engineer shall be entitled to rely upon the accuracy and completeness thereof. The Client recognizes that it is impossible for the Engineer to assure the accuracy, completeness and sufficiency of such information, either because it is impossible to verify, or because of errors or omissions which may have occurred in assembling the information the Client is providing. Accordingly. the Client agrees, to the fullest extent permitted by law, to indemnify and hold the Engineer and the Engineer's subconsultants harmless from any claim, liability or cost (including reasonable attorneys' fees and cost of defense) for injury or loss arising or allegedly arising from errors. omissions or inaccuracies in documents or other information provided by the Client to the Engineer. 26. Payment: Client shall be invoiced once each month for work performed during the preceding period. Client agrees to pay each invoice within thirty -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 attorneys 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 Safetv /Supervision & Construction Observation: The Engineer shall neither have control 7 over or charge of, nor be responsible for, the construction means, methods, techniques, sequences of procedures, or for safety precautions and programs in connection with the Work since they are solely the Contractor's rights and responsibilities. The Client agrees that the Contractor shall supervise and direct the work efficiently with his/her best skill and attention; and that the Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures of construction and safety at the job site. The Client agrees and warrants that this intent shall be carried out in the Client's contract with the Contractor. The Client further agrees that the Contractor shall be responsible for Initiating, maintaining and supervising all safety precautions and programs in connection with the work; and that the Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to, all employees on the subject site and all other persons who may be affected thereby. The Engineer shall have no authority to stop the work of the Contractor or the work of any subcontractor on the project. When construction observation services are Included in the Scope of Services, the Engineer shall visit the site at intervals appropriate to the stage of the Contractor's operation, or as otherwise agreed to by the Client and the Engineer to: 1) become generally familiar with and to keep the Client infomred 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 Contractor's failure to provide the Client with the requisite certificates of insurance shall not constitute a waiver of this provision by the Engineer. 8 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 gt8o-indiana mofified•City Jeffersonville std. 9 CHRISTOPHER B. BURKE ENGINEERING, LTD. STANDARD CHARGES FOR PROFESSIONAL SERVICES INDIANA PROJECTS JANUARY 2011 Charges' Personnel J$ /Hrl Engineer VI 210 Engineer V 168 Engineer IV 138 Engineer III 125 Engineer 1 /11 102 Resource Planner V 138 Resource Planner IV 125 Resource Planner III 109 Resource Planner 1 /11 96 Engineering Technician IV 125 Engineering Technician III 109 Engineering Technician I /11 96 CAD II 111 CAD I 98 GIS Specialist III 109 GIS Specialist I /11 87 Environmental Resource Specialist V 138 Environmental Resource Specialist IV 125 Environmental Resource Specialist III 109 Environmental Resource Specialist I /11 96 Environmental Resource Technician 90 Administrative 67 Engineering Intern 53 Information Technician I /11 62 Direct Costs Outside Copies, Blueprints, Messenger, Delivery Services, Mileage Cost + 12% 'Charges include overhead and profit Christopher B. Burke Engineering, Ltd. reserves the right to increase these rates and costs by 5% after December 31. 2011. Christopher B. Burke Engineering, Ltd.