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Parks Coppell FS-CS 890313 TICKLER FROM: RUSSELL DOYLE, CITY ENGINEER ACTION REQUESTED RE~ AND COGENT F Y I FOR YOUR APPROVAL NOTE & FILE NOTE & KEPLY NOTE & RETURN SET UP APPOI~ENT TO REVIEW ATTACHED ~ PLEASE T~E CHARGE OF THIS PREP~E RESPONSE FOR ~ SIGNA~RE RE T U S F 0 R ~ W ~T B RESPONSE ~ ~Kimley-Horn and Associates, Inc. 12660 Coit Road, Suite 200, Dallas, Texas. (214)386-7007 Raleigh. Charlotte. Nashville. Virginia Beach. Dallas. Phoenix. West Palrn Beach. Tarn pa. Orlando. FI: Lauderdale. Veto Beach. Ft. Myers. Stuart Mr. Russel Doyle, P.E. City Engineer City of Coppell Post Office Box 478 Coppell, Texas 75019 Re: Engineering services for review of floodplain development for compliance with City of Coppell Ordinance 87390 Dear Mr. Doyle: We are pleased to submit to you our contract for professional engineering services for review of the floodplain reclamation study on Cottonwood Branch and Denton Creek, prepared for ABQ Development by Jerry Parche Consulting Engineers of Arlington, Texas, as it relates to Coppell City Ordinance 87390. SCOPE OF SERVICES Review of Comvuter-Modelin~ Studies Review information presented by the City. This information would consist of computer modeling studies to support a development request in the City of Coppeli. The review would consist of three phases as follows: I. Verification of the sufficiency of the information presented. 11. Review of the information presented to determine if it meets the requirements of Ordinance 87390. III. Provide letter response to the city describing the results of our review. This review is intended to address the floodplain related issues only. The general review of the development plans, infrastructure, superstructure, and other issues will be completed by others. TIME SCHEDULE An initial response will be provided to the City within ten days of authorization to proceed with this project. The response will be either a letter describing the results of our review, a letter request for additional data, or a letter requesting additional time for review. Building client relationships since 1967 Mr. Russel Doyle March 13, 1989 Page Two FEE AND BILLING We will accomplish the outlined services based on an hourly rate as shown on the attached rate schedule. The maximum amount we will bill the City of Coppell for this project is $1,000. Invoicing is monthly, typicall.v mid-month for the previous month's services, and payment is due within 30 days of the date of the invoice. Monthly Lump Sum invoicing is an estimated percent complete of services. STIPULATIONS Any project undertaken above, is based on office services only. Our services do not include: field investigations, meetings with the City or others, appearance at Council or Planning and Zoning, follow-up actions after completion of the specific service, or other such actions. The review will involve no more than three responses to obtain sufficient information for review'. Once the service is complete for any specific project, and a review or determination presented to the City, any additional services necessary will constitute a new project. CLOSURE In addition to the services set forth herein, our agreement shall include, and shall be subject to the Standard Provisions attached hereto and hereby incorporated herein. The term "the client" as used in the attached Standard Provisions shall refer to the City of Coppell, Texas. Please return a signed copy of this agreement to our office to indicate your approval and authorization to proceed with this project. Very truly yours, K1MLEY-HORN AND ASSOCIATES, INC. Ronald W. Morrison, P.E. Senior Hydrologist pw Attachment: Standard Provisions Agreed to this __ day of , 1989 CITY OF COPPELL By: Title: Witness: c:\wp\hydrotgy\coparche.con\xt2 ICIHLET-~g AND ASSOCIATES, INC. STANDARO PROVISIG#S (1) ScOldS of Services The undertaking of the Engineer to perform professional services under this Agreement extends only to those services specifically described herein. However, if requested by the CLient and agreed to by the Engineer, the Engineer will perform additional services ("Additional Services") hereunder end shaLL be compensated therefore as set forth below, in addition, the Engineer is author[zed to perform Additioflal Services (for which the Engineer will be similarly compensated) for those items arising due to emergencies, errors, or other unanticipated actions by the CLient's contractor(s), revised regulations governing the Engineer's services, end,hen, in the Engineer's opinion, Additional Services are advisable as a result of other factors, such Additional Services are clearly in the CLient's interest, and advance authorization cannot be obtained. In the event of the performance of such Additional Services, the Engineer will notify the CLient as soon as practical of the necessity and inception of the services. (Z) Cilefltes Resi3oneibiLJties in addition to any responsibilities specifically described herein, the CLient shall have the following responsibilities to the Engineer: (a) Oesignete in writing s person to act as his representative with respect to this Agreement, such person hsvingccmpLete authority to transmit instructions, receive information, and make or interpret the CLient's decisions. (b) Provide all information and criteria aa to the CLient's requLrements, cbJectivea, and expectations for the project. 1hess data shall include all nunericaL criteria that are to be met and all standards of development, design, or construction that are to be followed. lc) Provide to the Engineer ali previous studies, plans, or other decoments pertaining to the project and eli ne~ data reasonably necessary, in the Engineer's opinion, such ss site survey snd engineering dsts, environmental I~pact assessments or statements, zoning or other land use regulations, atto, upon all of which the Engineer may rely. Cd) Arrange for access to the alta and other private or p~bLIc property as required for the Engineer to provide the services under this Agreement. (e) Review all documents or verbal reports presented by the Engineer and render in writing decisions pertaining thereto within reasonable time so as not to delay the servicea of the EnGineer. (f) furnish opprovsls ond permits from governmentsI suthorltles hsvlng jurisdiction over the project and approvals and consents from other parties ss may be necessary for completion of the Engineer's services. (g) Provide such independent sccounting, LeGal, insurance, cos~ esti~ting, and overall feasibility services beyond the scope of this Agree~ent as the Client ~n~¥ require or the Engineer may reaso~bl¥ request with regard to the professional fields listed shove. Ch) Give pro.pt written notice to the Engineer ~henever tbe Client becomes swsre of any development that affects the scope and timing of the Engineer's services or any defect or noncompliance in any ~spect of the project. ¢i) Sesr sit costs incident to the respons~blLIties of the Client. (~) Period of Service Unless otherwise provided herein, the Engineer wit! begin services pro~ptl¥ after receip~ of a fully executed cop¥ of this AGreement snd, unless specified otherwise herein, shsIL co-plate the services ~ithin s reasonable Length of time. The provisions of this sectio~ ~ the compensstion to the Engineer incloded in this AGreement hsve been agreed to in anticipation of s continuous snd orderly progress through the completion of the Engineer's services. fa) Times for performance sgreed to herein shall be extended to the estent mecesssr¥ for delays due to netursI disssters, strikes, or other circ~tances over which the Engineer has no control. lb) Lf the Enginaer~s services are delayed or suspended in ~hoLa or in pert, the times of performance shall be extended to the extant of auch delay or auspeneion~ such suspension shall ~ot terminate this Agreement unless the Engineer aLects to terminate by writtonnotlce In accordance with other provisions of this Agremeent. If such cleLa¥ or suspension extends for more than sixmanths (cumulotiveL¥) for resso~sbeyondthe Engineer~s control, the vsrlousrstes of ¢~pensstion prnvidedfor elsewhere in this Agreemen~ shell be subject to renegotiation. ¢&) CemDeflsation for ~ervices Unless specifically agreed to herein, the following atandard prov]aLons as to compensation amounts shall be applicable: fa) The Engineer shall be compensated for the services specifically described in accordance herewith. lb) Lf the Engineer performs Additional Services, the CLient ahall pay the Engineer for the performance of those Services an amount (in addition to all other amounts peyableunder thia Agreement) besed upo~ the Engineer's current hourly rates for the actual lima apent by the Engineer in providing such Additional Services plus 1o15 t~mas all direct expensea ('D~rect Exi~enaes") so incurred by the Engineer Ln providing such services (except as otherwise provided in paragraph lc) below). lc) D~rect expenses shall include the following hourly rates for usage of computers or other specialized equipment and progrmas used in connection therewith (wt~ich rates include the Direct Expense Fsctor): ¢1) Text processors and text scanning or facsimile equipment, (ii) Hicro- or minicomputers with standard prngr~, (ill) #Lcro- or minicomputers with apectaLIzed proprietary programao $20./hr. (iv) Co~puter-AIded-Draftlng or graphics, $20./hr. (d) In ~ddition to ~mou~ts pe¥~bLa by the CLient to tha Engineer hereunder, tha Client shall be invoiced for and shall pay to the Engineer in accordance ~ith paragraph (~) all taxes, if any, whether state, Local, or federal, levied with respect to such amounts. (5) P~Vme~tS for Services Co~pensatio~ shall be paid to the Engineer in accordance with the following provisions: Ca) Involcea will be submitted by the Engineer to the Client mo~thL¥ for aervices performed and expenses incurred pursuant ~o this Agreement during the prior month. Pay~ent of each such invoice will be due within twenty*five (2~) days of the receip~ thereof. A service charge ~ill be ~ed to delir~/uont accounts at the mesiu rate eLlo~ed by Law for each ~th of deLir~luency. Cb) If the CLient fails to fnoke any pey~tent due the Engineer for services and expenses ~ithin sixty ¢60) days after the Englnaer's trsnsmlttol of its invoice therefor, the Engineer mey~ after giving seven (?) days' written notice to the CLient, suspend services under this Agreement until ali maounts due hereunder are paid in full. lc) In the event any invoice or ~ny portion thereof remains u~ld for more than sixty 160) days following the invoice date, the Engineer may initials legal procaedings to collect the a~me ~d rscover~ in ~¢kJItton to all ~mo~ta due and payable including sccrued interest, its reasonable attorneys~ fees snd other expenses related to the proceeding. Such expenses shall include, b~t shall not be Limited to, the cost, determined at the Engineer's nermel hourly billing rates, of the time devoted to such proceedings by ~ts employees. (d) The Client acknowledges ond agrees thst the pad. tent for services rendered snd expenses incurred by the EnGineer pursuant to this A~ree~ne~t ia not subject to ar~/ contingency or conclitlons u~less expressly set forth in this Agree~ent. (6) ~euse of Dot--ts AIL documents, including but not Limited to dr~wings, specifications, snd data or programs stored eLectro~icsll¥, prepared by the Engineer pursuant to this AGreement sre reIs~ed exclusively to the services described herein. They sre not intended or represented ~o be suitsbLe for reuse by the Client or other~ on extensions of this project or on any other project. Ar~ reuse without ~rttten verification of adsptetionby the Engineer to specific purposes intended will be st the CLient's sole ris~ and w~thout iiobilit¥ or legal exposure to the Engineer; and the CLient shall inds~nif¥ and hold the Engineer harmless from sLl clsims, damages, Losses, and expenses, including but not limited to attorneya~ fees, arising out of or resulting therefrom. Any such verification or ad~ptation will entitle the EnGineer to further compensation at rates to beagreeduponby the Client snd the Engineer. ¢?) Opinions of Cost Since the Engineer has no control over the cost of laber, materials, equipment, or services furnished by others, or over methods of ~etermining prlcas, or over com~titive bidding or market conditions, any and sit opinions ss to costs rendered hereunder, including but not Limited to opinions ss to the costs of construction and materials, shall be made on the basis of its experience end quallfications and represent its best judgement as an experienced snd qualified professional engineer, familiar with the construction industry; but the EnGineer cannot and does not gusrantee that proposals, bids, or actual costs will not vary from opinions of costs prepared by it. if st any time the CLient wishea Greater assurance as to the ~mount of any cost, he shall employ an independent cost estimator to make such determination. Engineering ser¥~ces required to bring costs within any Limitation established by the CLient will be paid for as Additional Services herecw~ler by the Client. (8) Termination The obligation to provide further services under this AGreement may be terminated by either party upon seven days~ ~ritten notice in the event of substantial failure by the other party to perform in accordance with tha terms hereof through ~o fault of the terminstlng pert¥o In the event of eny ~ermin~tiO~o the Engineer ~ll be paid for sll services rendered to the date of termination, aLL expenses subject to reimbursement hereunder, and other reasonable expenses incurred by the Engineer as a result of such ',~rmination. In the event the Engineer's compensatiort under this Agreement is a fixed fee, upon such termination the amount payable to the Engineer for services rendered wit[ be a proportional amount of the total fee based upon the ratio of the amount of the services done, as reasonably determined by the Engineer, to the total amount of services which were to have been performed, Less prior partial payments, if any, which have been made. (9) £iabi[ity The Engineer is protected by Workers' Compensation insurance (and/or employer's LiabiLity insurance), professlona[ liability insurance, and bypub[ic LiabiLity insurance for bodiLy injury and propertydamage end wi[[ furnish certificates of insurance upon request. The Engineer agrees to hold the CLient harmless from Loss, damage, injury, or LiabiLity arising directly and to the extent from the negligent acts or omissions of the Engineer, its employees, agents, subcontractors, and their employees and agents, but only to the extent that the same is actuaLLy covered and paid under the foregoing policies of insurance. ]f the CLient specificaLLy directs the Engineer to obtain increased insurance coverage, or if the nature of the Engineer's activities requires additional Workers' Compensation or similar insurance coverage, the Engineer wiLL take out such additional insurance, if obtainable, at the CLient's expense. (10) Standard of Care In performing its professional services hereunder, the Engineer ~iL[ use that degree of care and skiLL ordinarily exercised, under similar circumstances, by reputable ~e~bera of its profession practicing in the sa~e or similar LocaLity. #o other warranty, express or i~pLied, is made or intended by the Engineer's undertaking herein or its performance of services hereunder. It is agreed that, in accordance with and subject to the provisions of the foregoing paragraph (9), the CLient wiLL Limit any and aLL LiabiLity, claim for damages, cost of defense, or expenses to be Levied against the Engineer on account of any and aLL design defects, errors, omissions, or professional negligence to the amount actuaLLy paid in condensation for, or ~ith respect to, such LiabiLity, claim, cost, or expense under any policy or pe[icies of professional LiabiLity insurance maintained by the Engineer. Further, the CLient agrees to notify any contractor or subcontractor who may perform work in connection with any design, report, or study prepared by the Engineer of such Limitation for defects, errors, omissions, or professional negligence and require as a condition precedent to his (or its) performance of such ~ork an identical Limitation of LiabiLity on his (or its) pert as against the Engineer. [n the event the CLient fails to obtain an identical Limitation of LiabiLity prevision ss to defects or negligence, the CLient shaLL indemnify and hold the Engineer harmless for any LiabiLity related to error, omissions, or act of professional negligence in such a manner and to such extent that the aggregate LiabiLity of the Engineer, including awards and costs assessed by any mediator-arbitrator for such defect or negligence to aLL parties including the Ctientf shat[ not exceed the aforementioned amount. Under no circumstances shat[ the Engineer be LiabLe for extra costs or other consequences due to changed conditions or for costs related to the failure of the contractor or materiatmen to instaLL work in accordance with the plans end specifications. (11) ExOensee of Litigation in the event Litigation in any way related to the services performed hereunder is initiated against the Engineer by the CLient, its contractors, or subcontractors, end such Litigation concludes aith the entry of a final judgment favorable to the Engineer, the CLient shat[ reimburse the Engineer for att of its reasonable attorneys' fees and other expenses related to said Litigation. Such expenses shat[ include, but shat[ not be Limited to , the cost, determined at the Engineer's normal hourly bitting rates, of the time devoted to such Litigation by the Engineer's employees. (12) Arbitration ALL claims, counterclaims, disputes, and other matters in question between the CLient and the Engineer arising out of this Agreement or the breach thereof shaLL be decidedby binding arbitration in accordance with the Construction industry RuLes of the A~erican Arbitration Association then obtaining, at the sole discretion of the Engineer. Notice of de~and for arbitration must be fi[ed in writing with the other party to this Agreement end with the American Arbitration Association no tater than that date when institution of Legal or equitable proceedings based on such claim, dispute, or other matter in question would be barred by the applicable statute of Limitations. In addition, no arbitration proceedings shat[ include by consolidation, joinder, or in any ot~er manner enyparty other than the CLient and the Engineer, and arbitration in respect of a specificaLLy described claim, counterclaim, dispute, or other matter in question shaLL not be expanded to include any other issue. The restrictions of the previous sentence as to parties to and issues of the arbitration proceedings may be amended by specific ~ritten approve[ of the CLient and the Engineer for each exception. (13) Hezardous Substances It is understood and agreed that, in seeking the professional services of the Engineer under this Agreement, the CLient does not request the Engineer to undertake to perform any services, studies, or tests, or to make any determinations involving hazardous substances, as defined by federal Law. Therefore, the Engineer undertakes no such obligation hereunder, and the CLient agrees to hold harmless, indemnify, and defend the Engineer from and against any and alt claims, Losses, damages, LiabiLity, and costs arising out of or in any way connected with the presence, discharge, re[ease, or escape of contaminants or hazardous substances of any kind, or environmental LiabiLity of e~y nature, in any manner related to services performed by the Engineer under this Agreement. if any condition regarding a hazardous substance, including but not Limited to asbestos, is observed by the Engineer or is aLLeged during the course of the performance of the services hereunder, the Engineer shaLL have the right to cease aLL services until the hazardous substance condition has been eliminated. The Engineer shaLL have the responsibility to notify the CLient of any such condition of ~ich the Engineer becomes aware, and the CLient shat[ be so[eLy responsible for the elimination of the hazardous substance condition, if the services to be perforated by the Engineer hereunder cannot be performed because of the existence of the hazardous substance condition, the existence of the condition shaLL be deemed to be a substantis[~ failure on the part of the CLient to perform in accordance with the terms of this Agree~ent~ through no fault of the Engineer, for the purposes of termination under paragraph (8). (14) Assigr~aent and Subcontracting Nothing under this Agreement shaLL be construed to give any rights or benefits in this Agreement to anyone other than the Client and the Engineer, and aLL duties end responsibilities undertaken pursuant to this Agreement ~iL[ be for the sole and exclusive benefit of the CLient and the Engineer and not for the benefit of any other party. Neither the CLient nor the Engineer shaLL assign, sub[et, or transfer any rights under or interests in this Agreement without the aritten consent of the other. However, nothing contained herein shaLL prevent or restrict the Engineer from ea~loying independent professional associates or consultants as the Engineer may deem appropriate to assist in the performance of services hereunder. (15) ConfidentiaLity The CLient hereby consents to the use and disse~nination by the Engineer of photographs of the Project and to the use by the Engineer of facts, data, and information obtained by the Engineer in the routine performance of the services hereunder. Notwithstanding the foregoing, with respect to any facts, data, or information specificaLLy identified in writing by the CLient, the Engineer shaLL use reesonabte care to maintain the confidentiality of such identified me[erie[. (16) Controlling Lw This Agreement is to be governed by the [aw of the State of Texas. (17) BindingEffect This Agreement shaLL bind, and the benefits thereof shaLL inure to the respective parties hereto, their Legal representatives, executors, administrators, successors, and assigns. (18) #er~er: faaendment ?his Agreement constitutes the entire Agreement between the Engineer end the CLient, and negotiations and written end ora[ understandings between the parties are merged herein. This Agreement can be supplemented and/or amended only by a written document executed by both the Engineer end the CLient. (19) ieverability and t~aiver of Provisi~ns Any provision in this Agreement that is prohibited or unenforceable in any jurisdiction she[[, as to such jurisdiction, be ineffective to the extent of such prohibitionorunenforceabititywithout invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. ALso, the non-enforcement of any provision by either party shaLL not constitute a waiver of that provision nor shat[ it affect the enforceebi[ity of that provision or of the remainder of this Agreement. STDPROV. r Kimley-Horn and Associates, Inc. 12660 Colt Road, Suite 200, Dallas, Texas. (214) 386-7007 Raleigh, Charlotte, Nashville. Virginia Beach, Dallas, Phoenix, West Palm Beach, Tampa. Orlando, Ft_ Lauderdale,Vero Beach. Ft_ Myers, Stuart March 13, 1989 Mr. Russel Doyle, P.E. City Engineer City of Coppell Post Office Box 478 Coppell, Texas 75019 Re: Engineering services for review of floodplain development for compliance wlth City of Coppeil Ordlnance 87390 Dear Mr. Doyle: We are pleased to submit to you our contract for professional engineering services for review' of the floodplain reclamation study on Cottonwood Branch and Denton Creek, prepared for ABQ Development by Jerry Parche Consulting Engineers of Arlington, Texas, as it relates to Coppell City Ordinance 87390. SCOPE OF SERVICES Review of Comvuter-Modelin.~ Studies Review information presented by the City. This information would consist of computer modeling studies to support a development request in the City of Coppell. The review would consist of three phases as follows: 1. Verification of the sufficiency of the information presented. ii. Review of the information presented to determine if it meets the requirements of Ordinance 87390. III. Provide letter response to the city describing the results of our review. This review is intended to address the floodplain related issues only. The general review of the development plans, infrastructure, superstructure, and other issues will be completed by others. TIME SCHEDULE An initial response will be provided to the City within ten days of authorization to proceed with this project. The response will be either a letter describing the results of our review, a letter request for additional data, or a letter requesting additional time for review. Building ¢liont rolationships sin¢o 1967 Mr. Russel Doyle March 13, 1989 Page Two FEE AND BILLING We will accomplish the outlined services based on an hourly rate as shown on the attached rate schedule. The maximum amount we will bill the City of Coppell for this project is $1,000. Invoicing is monthly, typically mid-month for the previous month's services, and payment is due within 30 days of the date of the invoice. Monthly Lump Sum invoicing is an estimated percent complete of services. STIPULATIONS Any project undertaken above, is based on office services only. Our services do not include: field investigations, meetings with the City or others, appearance at Council or Planning and Zoning, follow-up actions after completion of the specific service, or other such actions. The review will invoh'e no more than three responses to obtain sufficient information for review. Once the service is complete for any specific project, and a review or determination presented to the City, any additional services necessary will constitute a new project. CLOSURE In addition to the services set forth herein, our agreement shall include, and shall be subject to the Standard Provisions attached hereto and hereby incorporated herein. The term "the client" as used in the attached Standard Provisions shall refer to the City of Coppell, Texas. Please return a signed copy of this agreement to our office to indicate 3'our approval and authorization to proceed with this project. Very truly yours, KIMLEY-HORN AND ASSOCIATES, INC. Ronald W. Morrison, P.E. Senior Hydrologist pw Attachment: Standard Provisions Agreed to this __ day of , 1989 CITY OF COPPELL By: Title: Witness: c:\wp\hydrotgy\coparche.con\xt2 [iNLET-HORN All) ASSOCIATES, INC. STAll)ARE) PROVISIG#S (1) Scsi)eof Services The undertaking of the Engineer to perform professloflat services urN:ler this Agreement extends only to those services specifically described herein. However, if recluestedby the CLient sndsgreed to by the Engineer, the Engineer will perform additional services ("Additional Services") hereunder end shell be compensetedtherefore ss set forth below. In addition, the Engineer is authorized to perform Additional Services (for VnJch the Engineer will be similarly compensated) for those items arising due to emergencies, errors, or other Lw~snticipeted actions by the CLient"s contractor(s), revised regulations governing the Engineer's services, end when, in the Engineer's opinion, Additional Services areedvissble ss s result of other factors, such Additional Services Ire clearly in the Client'l interest, and advance authorization cannot be obtained. In the event of the performance of such Additional Servlcee, the Engineer NILL notify the CLient ss soon ss practical of the necessity end inception of the services. (2) Cllefttes Re~pon~bilitle~ In sdditLon to any respon~ibiLities IpeciflceLLy described herein, the CLient shall have the folLo~41ng responsibilities to the Engineer: (e) Designate in writing s person to act ss his representative with respect to thll Agreement, such person having complete authority to transmit Instructions, receive information, and make or interpret the CLlent'l decisions. (b) Provide ILL information endcrlteris es to the CLlent"l requirementl, objoctlvel, end expectstlons for the project. These data IhsLt Include ell r~JnerlceL criteria that ere to be met end all standards of development, design, or construction that ere to be followed. (c) Provide to the Engineer all previous studies, plans, or other docunents pertaining to the project and eli new data reasonably necessary, in the Engineer"s opinion, such as site survey end engineering date, environmental In1~sct assessments or statements, zoning or other Land use regulations, etc., upo~ ell of which the Engineer may rely. Id) Arrange for sccell to the lite ind other private or pul=Lie property es required for the Engineer to provide the services under this Alreement. (e) gevieH all documents or verbal reports presented by the Engineer end render In writing decisions pertaining thereto ~ithin s reasonable time so es not to delby the services of the Engineer. If) Furnish approvals and permits fro~ governmental authorities having jurisdiction over the project and approvals and consents from other parties as may be necessary for completion of the Engineer's services. (g) Provide such independent accounting, Legal, insurance, cost estimating, end overall feasibility services beyond the scope of this Agreement ss the CLient may require or the Engineer may reasonably request with regard to the professional fields Listed above. Ih) Give prompt written notice to the Engineer whenever the CLient beccmtes B~sre of any deveLofld~ent that affects the scope and timing of the Engineer's services or any defect or noncompliance In any aspect of the project. Ii) gear ali costs incident to the responsibilities of the CLient. (3) Period of Service Unless otherwise provided herein, the Engineer will begin services promptly after receipt of a fully executed copy of this Agreement end, unless specifiedotherHtseherein, shall complete the services withtne reasonable Length of time. The provisions of this section end the compensation to the Engineer included in this Agreement have been agreed to in anticipation of a continuous end orderly progress through the completion of the Engtneer~l services. (B) Times for performance agreed to herein shall be extended to the extent necessary for delays due to natural disasters, strikes, or other circtJ~Stances over ~hlch the Engineer has no control. (b) If the Engineer"s services ere delayed or suspended in ~hoLe or in pert, the times of performance shall be extended to the extent of such delay or suspension; such suspension shell not terminate thil Agreement unless the Engineer elects to terminate by wrlttennetice in accordance with other provisions of this Agreement. If such dolly or lusponslon extends for mere than sixmenths (cumulatively) for reasons beyondthe Englneer"s control, the various rates of coepensatton provlded for elsewhere in this Agreement shall be subject to renegotiation. (&) eQUation for ServLce~ Unless specifically agreed to herein, the following standard provisions as to compensation amounts shall be applicable: Ia) The Engineer shall be compensated for the services specifically described in sccordnnce herewith. (b) If the Engineer performs Additional Services, the CLient shall pay the Engineer for the performance of those Services an amount (in addition to all other amounts payable under this Agreement) based upon the Engineer"s current hourly rates for the actual time spent by the EngLneer in providing such Additional Services plus 1.15 thael ell direct expenses ("Direct Expenses") so incurred by the Engineer in providing such services (except ss otherwise provided in paragraph (c) (c) 01reel expenses shall include the following hourly rates for usage of computerl or other specialized equipment end programs used In connection therewith (Hhich rates include the Direct Expense Factor): Ii) Text processors and text scanning or facsimile equil=mentw $&./hr. (It) Micro- or miniccNnputers with standard programs, $20./hr. (iii) Micro- or mlnlcomputerl with specialized proprietary programs, $20./hr. (iv) Computer-Aided-Drafting or graphics. S20./hr. Id) in addition to amounts payable by the CLient to the Engineer hereunder, the Client shall be invoiced for and shall pay to the Engineer in accordance with paragraph (5) all taxes, if any, ~hether stste~ local, or federal, Levied with respect to such amounts. (5) Pmanents for Servicel Cc~q~ensetton shall be paid to the Engineer in accordance with the foLio~ing provisions: (e) Invoices will be submlttedby the Engineer to the CLient monthly for services performed and expenses incurred pursuant to this Agreement during the prior month. Payment of each such invoice will be due within tHenty-five (25) days of the receipt thereof. A service charge will be added to delinquent accounts st the maximum rate itLo~ed by Law for each month of delinquency. (b) If the CLient fails to make any payment due the Engineer for lervices end expenses within sixty (60) days after the Engineer's trenemlttsL of its invoice therefor, the Engineer may, after living seven (7) days' written notice to the CLient, suspend services under thL$ Agreement until ell amounts due hereunder are paid in full. (c) In the event any invoice or any portion thereof remains unl3aid for more than sixty (60) days following the invoice date, the Engineer may initiate Legal proceedings to collect the same end recover, tn addition to all amounts due and payable including accrued interest, its reasonable attorneys~ fees and other expenses related to the proceeding. Such expenses shall include, but IhsiL not be Limited to, the cost, determined et the Englneer~l normal hourly billing rates, of the time devoted to such proceedings by its employees. Id) The CLient acknowledges and agrees that the payment for services rendered and expenses Incurred by the Engineer pursuant to this Agreement is not subject to any contingency or conditions unless expressly set forth in this Agreement. (6) ge~Jse of Docuae~ts ALI documents, Including but not Limited to drawings, specificatLons, end data or programs stored electronically, prepared by the Engineer pursuant to this Agreement ere related exclusively to the services described herein. They ere not Intended or represented Lobe suitable for reuse by the CLient or others on extensions of this project or on any other project. Any reuse without written verification of adaptation by the Engineer to specific purposes intended will be st the CLient"s sole risk end without Liability or Legal exposure to the Engineer; and theCLient shell tndemnifyandhold the Engineer harmless from all claims, damages, Losses, end expenses, including but not Limited to attorneys" fees, arising out of or resulting therefrom. Any such verificatLonor adaptation will entitle the Engineer to further compensation st rates tobe sgreeduponby the CLient and the Engineer. (?) Opinion~ of Cost Since the Engineer has no control over the cost of Labor, materials, eclulpment, or services furnished by others, or over methods of determining prices, or over coa~petitlve bidding or market conditions, any end ell opinions as to costs rendered hereunder, including but not Limited to opinions as to the costs of construction and materials, shall be made on the basis of its experience and qualifications and represent its best judge~ont ss an experienced and qualified professional engineer, familiar with the construction industry; but the EngLneer cannot and does not guarantee that proposals, bids, or actual costs will not vary from opinions of costs prepared by it. If st any time the CLient wishes greater assurance ss to the amount of any cost, he shall employ on independent cost estimator to make such determination. Engineering services required to bring costs within any limitation established by the CLient will be paid for as AdditiormL Services hereunder by the CLient. (8) Termination The obligation to provide further services under this Agreement may be terminated by either party upon seven (?) days' Hritten notice in the event of lubetentiaL failure by the other party to perform in accordance Hith the terms hereof through no fault of the terminating party, in the event of any termination, the Engineer Hill be paid for ell services rendered to the date of termination, all expenses aubject to reimbursement hereunder, and other reasonable expenses incurred by the Engineer es a result of such termination. In the event the Engineer's compensation under this Agreement is a fixed fee, upon such termination the amount payable to the Engineer for services rendered will be s proportional amount of the total fee based upon the ratio of the amount of the services done, es reasonably determined by the Engineer, to the total amount of services which were to have been performed, Less prior partial pay~nents, if any, which have been made. (9) L~abi(ity The Engineer is protected by Workers~ Compensation Insurance (and/or employer0s liability insurance), professional liability insurance, and by public liability Insurance far bodily injury and proparty damage and will furnish certificates of insurance upon request. The Engineer agrees to hold the Client harmless from loss, damage, injury, or Liability arising directly and to the extent from the negligent acts or omissions of the Engineer, its employees, agents, subcontractors, and their employees and agents, but only to the extent that the same is actually covered and paid under the foregoing policies of insurance, if the Client specifically directs the Engineer to obtain Increased insurance coverage, or tf the nature of the Engineerts activities requires additional Workers* Compensation or similar insurance coverage, the Engineer will take out such additional insurance, If obtainable, at the Client*a expense. (10) Standard of Core In performing its professional services hereunder, the Engineer will use that degree of care and skill ordinarily exercised, under similar circumstances, by reputable members of its profession practicing in the same or similar locality. No other warranty, express or implied, is made or intended by the Engineerls ur~lertaking herein or its performance of services hereunder. It is agreed that, in accordance with and subject to the provisions of the foregoing paragraph (9), the CLient will Limit any and al[ Liability, claim for damages, cost of defense, or expanses to be Levied against the Engineer on account of any and design defects, errors, omissions, or professional neg[igenee to the amount actually paid in compensation for, or with respect to, such Liability, claim, cost, or expense under any pa[icy or policies of professional liability insurance maintained by the Engineer. Further, the CLient agrees to notify any contractor or subcontractor ~ho may perform work in connection with any design, report, or study preparedby the Engineer of such Limitation for defects, errors, omissions, or professional negligence and require as a condition precedent to his (or its) performance of such work an identical limitation of Liability on his (or its) part as against the Engineer. in the event the Client fails to obtain an identical limitation of Liability provision as to defects or negligence, the CLient shall indemnify end hold the Engineer harmless for any liability related to error, omissions, or act of professional negligence in such a manner and to such extent that the aggregate liability of the Engineer, including swards and costs assessed by any mediator-arbitrator for such defect or negligence to all parties including the CLient, she[[ not exceed the aforementioned amount. Under no circumstances shall the Engineer be Liable for extra costs or other consequences due to changed conditions or for costs related to the failure of the contractor or materialman to install ~ork in accordance with the plane and specifications. (11) Exf~eflses of Litigation In the event Litigation in any way related to the services performe~l hereunder is initiated against the Engineer by the CLient, its contractors, or subcontractors, and such Litigation concludes with the entry of a final judgment favorable to the Engineer, the CLient shall reimburse the Engineer for al[ of its reasonable attorneys' fees and other expenses related to said Litigation. Such expenses shat[ include, but shall not be limited to , the cost, determined a~ the Engineer's normal hourly billing rates, of the time devoted to such Litigation by the Engineer0s eeployees. (12) Arbitration ALI claims, counterclaims, disputes, and other matters in question between the CLient and the Engineer arising out of this Agreement or the breach thereof shall be decided by binding arbitration in accordance with the Construction Industry gu[es of the American Arbitration Association then obtaining, at the solediscretJonof the Engineer. Notice of demand for arbitration must be filed in writing with the other party to this Agreement and with the American Arbitration Association no Later than that date when institution of Legal or equitable proceedings based on such claim, dispute, or other matter in question would be barred by the applicable statute of limitations, in addition, no arbitration proceedings shall include by consolidation, joinder, or in any other manner any party other than the CLient and the Engineer, and arbitration in respect of a specifically described claim, counterclaim, dispute, or other matter in question shall not be expanded to include any other issue. The restrictions of the previous sentence es to parties to and issues of the arbitration proceedings may be amended by specific written approval of the Client and the Engineer for each exception. (13) Hazardous Substances [t is understood and agreed that, in seeking the professional services of the Engineer under this Agreement, the CLient does not request the Engineer to undertake to perform any services, studies, or tests, or to make any determinatJona Involving hazardous substances, as defined by federal law. Therefore, the Engineer undertakes no such obligation hereunder, and the CLient agrees to hold harm[ess, indemnify, end defend the Engineer from and against any and all claims, Losses, damages, Liability, and costs arising out of or in any way connected ~ith the presence, discharge, re[ease, or escape of contaminants or hazardous substances of any kind, or environmental liability of any nature, in any manner related to services performed by the Engineer under this Agreement. If any condition regarding a hazardous substance, including but not Limited to asbestos, is observed by the Engineer or is alleged during the course of the performance of the services hereur~er, the Engineer shall have the right to cease all services until the hazardous substance condition has been e[imineted. The Engineer shall have the responsibility to notify the Client of any such condition of which the Engineer becomes aware, end the Client shall be solely responsible for the elimination of the hazardous substance condition. If the services to be performed by the Engineer hereunder cannot be performed because of the existence of the hazardous substance condition, the existence of the conditio~shoLl be deemed to be a substantials,allure on the part of the CLient to perform in accordance with the terms of this Agreement, through no fault of the Engineer, for the purposes of termination under paragraph (8). (14) Assigmeflt afldSubco~tracting Nothingunder this Agreement shall be construed to give any rights or benefits in this Agrec~)ent to anyone other than the CLient and the Engineer, and sit duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the CLient end the Engineer and not for the benefit of any other party. Neither the CLient nor the Engineer shall assign, sublet, or transfer any rights under or interests in this Agreement uithout the written consent of the other. However, nothing contained herein shall prevent or restrict the Engineer from employing independent professional associates or consultants as the Engineer may deem appropriate to assist in the performance of services hereunder. (15) Confidentiality The CLient hereby consents to the use end dissemination by the Engineer of photographs of the Project and to the use by the Engineer of facts, data, and information obtained by the Engineer in the routine performance of the services hereunder. NotMithstanding the foregoing, with respect to any facts, data, or information specifically identified in writing by the CLient, the Engineer shall use reasonable care to maintain the confidentiality of such identified material. (16) Comtrolting LaM This Agreement is to be governed by the Low of the State of ?exas. (~?) 81riding Effect This Agreement she[[ bind, and the benefits thereof shall inure to the respective parties hereto, their Legal representatives, executors, administrators, successors, end assigns. (18) tlerger: Aaendme~t This Agreement constitutes the entire Agreement betMeen the Engineer and the Client, and negotiations and ~ritten and ora[ understandings between the parties are merged herein. This Agreement can be supp[efl~nted and/or amended only by a written document executed by both the Engineer and the CLient. (19) SeverabiLityandWaiver of Provisions Any provision in this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. ALso, the non-enforcement of any provision by either party shat[ not constitute s waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this Agreement. STOPROV.