HomeMy WebLinkAboutFEMA Map Appeal C Christopher B. Burke Engineering, LLC
BB 115 W. Washington St. Suite 1368 South Indianapolis, IN 46204 317.266.8000 cbbel - in.com
April 26, 2013
Andy Crouch
City of Jeffersonville City Engineer
500 Quartermaster Court
Jeffersonville, IN 47130
Subject: FEMA Map Appeal
Professional Services Proposal
Dear Mr. Crouch:
Christopher B. Burke Engineering, LLC (CBBEL) is pleased to provide this proposal for professional
engineering services related to revising the preliminary Special Flood Hazard Area delineations
along five river and stream reaches through the City of Jeffersonville. The following is our
understanding of the assignment, scope of services, and estimated fee in support of the project.
UNDERSTANDING OF THE ASSIGNMENT
FEMA has issued preliminary Special Flood Hazard Area (SFHA) maps for Clark County. The
preliminary maps appear to incorrectly add several areas along streams in Jeffersonville to the
SFHA. This project is for the redelineation of the proposed Special Flood Hazard Area limits for the
following streams:
1. Ohio River (Lancassange Ck to Fairwood Drive & Turnberry St to Penn Street)
2. Lancassange Creek (entire detail study reach)
3. Woodland Court Creek (entire detail study reach)
4. Mill Creek (d /s study limit to 260' u/s of Myrtle Street)
5. Hamburg Pike Tributary (entire reach)
The redelineations will be based on the latest available topographic data for each stream, which is
more recent and accurate than was used to generate the preliminary maps. The results will be
submitted to the Indiana Department of Natural Resources and FEMA as a formal appeal of the
preliminary maps.
SCOPE OF SERVICES
Services to be provided by CBBEL include:
Task 1 - Data Gathering: Collect latest digital topographic data.
Jeffersonville FEMA Map Appeal April 26, 2013
2013.6766 Page 1
Task 2- Redelineation of Floodplain Limits: Input required data and delineate the Special
Flood Hazard Area using the latest, more accurate topographic data. The FEMA base flood
elevations presented in their preliminary reports will not be modified.
Task 3- Documentation: CBBEL will provide the necessary mapping and documentation for
each stream to the Indiana Department of Natural Resources (IDNR) for use in revising the FIS
mapping before it becomes Final.
Task 4- Coordination: Communicate findings and recommended actions to City staff
members.
ESTIMATED FEE
We have estimated the total cost for these services should not exceed $12,000. We will bill you
monthly, on a time and material basis in accordance with our attached standard Charges for
Professional Services. In addition, our contract will be established in accordance with the
attached General Terms and Conditions. These General Terms and Conditions are expressly
incorporated into and are an integral part of this contract for professional services.
If this proposal meets with your approval, please sign where indicated and return an executed
original to us as our Notice to Proceed. The executed Proposal, along with the Estimated Fee and
the attached General Terms and Conditions constitute the whole of our Agreement. Any
modification to any part of this Agreement without prior acknowledgement and consent by
CBBEL will make null and void this Agreement.
We appreciate the opportunity to submit this proposal and look forward to working with you on
this project. Please contact me or Siavash Beik, P.E., at (317) 266 -8000 if you have questions.
Sincerely,
JL
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Jon D. Stolz, P.E.
Managing Vice President
Jeffersonville FEMA Map Appeal April 26, 2013
2013.6766 Page 2
THIS PROPOSAL, SCOPE OF SERVICES, ESTIMATED FEE, AND GENERAL TERMS AND
CONDITIONS ARE ACCEPTED FOR THE CITY OF JEFFERSONVILLE BY:
Signature: eycj
Name (Printed): CJ -BR A 4
Title:
Date: S/ 71
Enclosures: 2013 Standard Charges for Professional Services
General Terms and Conditions (Jeffersonville)
JDS /lan
Jeffersonville FEMA Map Appeal April 26, 2013
2013.6766 Page 3
C CHRISTOPHER B. BURKE ENGINEERING, LLC
BB STANDARD CHARGES FOR PROFESSIONAL SERVICES
JANUARY 2013
Charges*
Personnel ($ /Hr)
Engineer VI 216
Engineer V 173
Engineer IV 142
Engineer III 129
Engineer I /II 105
Resource Planner V 142
Resource Planner IV 129
Resource Planner III 112
Resource Planner I /II 99
Engineering Technician IV 129
Engineering Technician III 112
Engineering Technician I /II 99
CAD II 114
CADI 101
GIS Specialist III 112
GIS Specialist I /II 90
Environmental Resource Specialist V 142
Environmental Resource Specialist IV 129
Environmental Resource Specialist III 112
Environmental Resource Specialist I /II 99
Environmental Resource Technician 93
Administrative 69
Engineering Intern 55
Information Technician I /II 64
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.
CHRISTOPHER B. BURKE ENGINEERING, LLC
GENERAL TERMS AND CONDITIONS
1. 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. Changes: Client reserves the right by written change order or amendment to make changes in
requirements, amount of work, or engineering time schedule adjustments, and Engineer and
Client shall negotiate appropriate adjustments acceptable to both parties to accommodate any
changes, if commercially possible.
4. Suspension of Services: Client may, at any time, by written order to Engineer (Suspension of
Services Order), require Engineer to stop all, or any part, of the services required by this
Agreement. Upon receipt of such an order, Engineer shall immediately comply with its terms and
take all reasonable steps to minimize the costs associated with the services affected by such
order. Client, however, shall pay all costs incurred by the suspension, including all costs
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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.
S. 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, damages, and
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costs, including but not limited to attorney's fees, arising therefrom or in connection therewith.
The Client recognizes that changes or modifications to the Engineer's instruments of professional
service introduced by anyone other than the Engineer may result in adverse consequences which
the Engineer can neither predict nor control. Therefore, and in consideration of the Engineer's
agreement to deliver its instruments of professional service in machine readable form, the Client
agrees, to the fullest extent permitted by law, to hold harmless and indemnify the Engineer from
and against all claims, liabilities, losses, damages, and costs, including but not limited to attorney's
fees, arising out of or in any way connected with the modification, misinterpretation, misuse, or
reuse by others of the machine readable information and data provided by the Engineer under
this Agreement. The foregoing indemnification applies, without limitation, to any use of the
Project Documentation on other projects, for additions to this Project, or for completion of this
Project by others, excepting only such use as may be authorized, in writing, by the Engineer.
7. Reuse of Documents: All Project Documents including but not limited to reports, opinions of
probable costs, drawings and specifications furnished by Engineer pursuant to this Agreement
are intended for use on the Project only. They cannot be used by Client or others on extensions of
the Project or any other project. Any reuse, without specific written verification or adaptation by
Engineer, shall be at Client's sole risk, and Client shall indemnify and hold harmless Engineer from
all claims, damages, losses, and expenses including attorney's fees arising out of or resulting
therefrom.
The Engineer shall have the right to include representations of the design of the Project, including
photographs of the exterior and interior, among the Engineer's promotional and professional
materials. The Engineer's materials shall not include the Client's confidential and proprietary
information if the Client has previously advised the Engineer in writing of the specific information
considered by the Client to be confidential and proprietary.
8. Standard of Practice: The Engineer will strive to conduct services under this agreement in a
manner consistent with that level of care and skill ordinarily exercised by members of the
profession currently practicing in the same locality under similar conditions as of the date of this
Agreement.
9. Compliance with Laws: The Engineer will strive to exercise usual and customary professional care
in his /her efforts to comply with those laws, codes, ordinance and regulations which are in effect
as of the date of this Agreement. With specific respect to prescribed requirements of the
Americans with Disabilities Act of 1990 or certified state or local accessibility regulations (ADA),
Client understands ADA is a civil rights legislation and that interpretation of ADA is a legal issue
and not a design issue and, accordingly, retention of legal counsel (by Client) for purposes of
interpretation is advisable. As such and with respect to ADA, Client agrees to waive any action
against Engineer, and to indemnify and defend Engineer against any claim arising from Engineer's
alleged failure to meet ADA requirements prescribed.
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
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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 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
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accordance with applicable law to comply with the lien notice or filing deadlines prior to
resolution of the matter by mediation or by arbitration.
The Client and Engineer shall endeavor to resolve claims, disputes and other matters in question
between them by mediation which, unless the parties mutually agree otherwise, shall be in
accordance with the Construction Industry Mediation Rules of the American Arbitration
Association currently in effect. Requests for mediation shall be filed in writing with the other party
to this Agreement and with the American Arbitration Association. The request may be made
concurrently with the filing of a demand for arbitration but, in such event, mediation shall
proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed
pending mediation for a period of 60 days from the date of filing, unless stayed for a longer
period by agreement of the parties or court order.
The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held
in the place where the Project is located, unless another location is mutually agreed upon.
Agreements reached in mediation shall be enforceable as settlement agreements in any court
having jurisdiction thereof.
13. Successors and Assigns: The terms of this Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns: provided, however, that neither
party shall assign this Agreement in whole or in part without the prior written approval of the
other.
14. Waiver of Contract Breach: The waiver of one party of any breach of this Agreement or the failure
of one party to enforce at any time, or for any period of time, any of the provisions hereof, shall be
limited to the particular instance, shall not operate or be deemed to waive any future breaches of
this Agreement and shall not be construed to be a waiver of any provision, except for the
particular instance.
15. Entire Understanding of Agreement: This Agreement represents and incorporates the entire
understanding of the parties hereto, and each party acknowledges that there are no warranties,
representations, covenants or understandings of any kind, matter or description whatsoever,
made by either party to the other except as expressly set forth herein. Client and the Engineer
hereby agree that any purchase orders, invoices, confirmations, acknowledgments or other
similar documents executed or delivered with respect to the subject matter hereof that conflict
with the terms of the Agreement shall be null, void and without effect to the extent they conflict
with the terms of this Agreement.
16. Amendment: This Agreement shall not be subject to amendment unless another instrument is
duly executed by duly authorized representatives of each of the parties and entitled "Amendment
of Agreement."
17. Severability of Invalid Provisions: If any provision of the Agreement shall be held to contravene or
to be invalid under the laws of any particular state, county or jurisdiction where used, such
contravention shall not invalidate the entire Agreement, but it shall be construed as if not
containing the particular provisions held to be invalid in the particular state, country or
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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 perform such services.
21. Designation of Authorized Representative: Each party (to this Agreement) shall designate one or
more persons to act with authority in its behalf in respect to appropriate aspects of the Project.
The persons designated shall review and respond promptly to all communications received from
the other party.
22. Notices: Any notice or designation required to be given to either party hereto shall be in writing,
and unless receipt of such notice is expressly required by the terms hereof shall be deemed to be
effectively served when deposited in the mail with sufficient first class postage affixed, and
addressed to the party to whom such notice is directed at such party's place of business or such
other address as either party shall hereafter furnish to the other party by written notice as herein
provided.
23. Limit of Liability: The Client and the Engineer have discussed the risks, rewards, and benefits of
the project and the Engineer's total fee for services. In recognition of the relative risks and benefits
of the Project to both the Client and the Engineer, the risks have been allocated such that the
Client agrees that to the fullest extent permitted by law, the Engineer's total aggregate liability to
the Client for any and all injuries, claims, costs, losses, expenses, damages of any nature
whatsoever or claim expenses arising out of this Agreement from any cause or causes, including
attorney's fees and costs, and expert witness fees and costs, shall not exceed the total Engineer's
fee for professional engineering services rendered on this project as made part of this Agreement.
Such causes included but are not limited to the Engineer's negligence, errors, omissions, strict
liability or breach of contract. It is intended that this limitation apply to any and all liability or
cause of action however alleged or arising, unless otherwise prohibited by law.
24. Client's Responsibilities: The Client agrees to provide full information regarding requirements for
and about the Project, including a program which shall set forth the 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
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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 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
7
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 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 lndemnitees 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,
8
sequences of procedures, or for safety precautions and programs in connection with the Work
since they are solely the Contractor's rights and responsibilities. The Client agrees that the
Contractor shall supervise and direct the work efficiently with his /her best skill and attention; and
that the Contractor shall be solely responsible for the means, methods, techniques, sequences
and procedures of construction and safety at the job site. The Client agrees and warrants that this
intent shall be carried out in the Client's contract with the Contractor. The Client further agrees
that the Contractor shall be responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the work; and that the Contractor shall take all
necessary precautions for the safety of, and shall provide the necessary protection to prevent
damage, injury or loss to, all employees on the subject site and all other persons who may be
affected thereby. The Engineer shall have no authority to stop the work of the Contractor or the
work of any subcontractor on the project.
When construction observation services are included in the Scope of Services, the Engineer shall
visit the site at intervals appropriate to the stage of the Contractor's operation, or as otherwise
agreed to by the Client and the Engineer to: 1) become generally familiar with and to keep the
Client informed about the progress and quality of the Work; 2) to strive to bring to the Client's
attention defects and deficiencies in the Work and; 3) to determine in general if the Work is being
performed in a manner indicating that the Work, when fully completed, will be in accordance with
the Contract Documents. However, the Engineer shall not be required to make exhaustive or
continuous on -site inspections to check the quality or quantity of the Work. If the Client desires
more extensive project observation, the Client shall request that such services be provided by the
Engineer as Additional and Supplemental Construction Observation Services in accordance with
the terms of this Agreement.
The Engineer shall not be responsible for any acts or omissions of the Contractor, subcontractor,
any entity performing any portions of the Work, or any agents or employees of any of them. The
Engineer does not guarantee the performance of the Contractor and shall not be responsible for
the Contractor's failure to perform its Work in accordance with the Contract Documents or any
applicable laws, codes, rules or regulations.
When municipal review services are included in the Scope of Services, the Engineer (acting on
behalf of the municipality), when acting in good faith in the discharge of its duties, shall not
thereby render itself liable personally and is, to the maximum extent permitted by law, relieved
from all liability for any damage that may accrue to persons or property by reason of any act or
omission in the discharge of its duties. Any suit brought against the Engineer which involve the
acts or omissions performed by it in the enforcement of any provisions of the Client's rules,
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
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respect to the work. The Contractor shall provide to the Client certificates of insurance evidencing
that the contractually required insurance coverage has been procured. However, the Contractor's
failure to provide the Client with the requisite certificates of insurance shall not constitute a
waiver of this provision by the Engineer.
The Client and Engineer waive all rights against each other and against the Contractor and
consultants, agents and employees of each of them for damages to the extent covered by
property insurance during construction. The Client and Engineer each shall require similar waivers
from the Contractor, consultants, agents and persons or entities awarded separate contracts
administered under the Client's own forces.
30. Hazardous Materials /Pollutants: Unless otherwise provided by this Agreement, the Engineer and
Engineer's consultants shall have no responsibility for the discovery, presence, handling, removal
or disposal of or exposure of persons to hazardous materials /pollutants in any form at the Project
site, including but not limited to mold /mildew, asbestos, asbestos products, polychlorinated
biphenyl (PCB) or other toxic /hazardous /pollutant type substances.
Furthermore, Client understands that the presence of mold /mildew and the like are results of
prolonged or repeated exposure to moisture and the lack of corrective action. Client also
understands that corrective action is an operation, maintenance and repair activity for which the
Engineer is not responsible.
June 13. 2005-INDIANA
gt &c- indiana mofified -City Jeffersonville std.
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