HomeMy WebLinkAboutCity Council Resolutions (R-05-2531)-04/05/2005RESOLUTION R-05-2531
A RESOLUTION APPROVING A CONTRACT WITH KIMLEY-HORN AND
ASSOCIATES FOR WATER, WASTEWATER, AND ROADWAY CAPITAL
IMPROVEMENT PLANNING
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
COLLEYVILLE, TEXAS:
Sec.1. THAT the contract for professional services with Kimley-Horn and
Associates for water, wastewater, and roadway capital improvement
planning in an amount not to exceed $71,000 is hereby approved
AND IT IS SO RESOLVED.
PASSED BY A VOTE OF 7- AYES, I NAYS AND O ABSTENTIONS ON
THIS THE S~ DAY OF ' 2005.
ATTEST: -
'-,~~ ~`~,
~
Cynthia Singleton, TRMC
City Secretary
Mayor
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Kimley-Horn
and Associates, Inc.
March 1, 2005
.
Suite 1025
801 Cherry Street, Unit 11
Fort Worth, Texas
76102
Mr. Barry LeBaron, AICP
Community Development Manager
City of Colleyville
100 Main Street
Colleyville, TX 76034
Re: Water, Wastewater, and Roadway Impact Fee Update
Colleyville, Texas
Proposal for Professional Engineering Services
Dear Mr. LeBaron:
Kimley-Horn and Associates, Inc. (KHA) is pleased to submit this Letter
Agreement to the City of Colleyville (Client) to provide professional services to
update the City's water, wastewater, and roadway impact fees. Our project
understanding, scope of services, schedule, and fee are below.
Project Understanding
This project consists of providing professional services associated with an update
of the City of Colleyville Land Use Assumptions and Water, Wastewater, and
Roadway Impact Fees in accordance with Chapter 395 of the Texas Local
Government Code. This project is anticipated to include the following
components:
1. Land Use Assumptions (Report to include City staff-prepared work)
2. Water Impact Fee Update
3. Wastewater Impact Fee Update
4. Roadway Impact Fee Update
5. Financial Analysis and Impact Fee Credit Determination
6. Public Hearings and Approval
Scope of Services
If services beyond those defined in this scope are to be required, KHA will
confer with the Client to receive further authorization before such additional
services are performed.
.
TEL 817 335 6511
FAX 817 335 5070
~=~
Kimley-Horn
and Associates, Inc.
Mr. Barry LeBaron, AICP, March 1, 2005, Page 2
Task 1 - Land Use Assumptions
$2,500
KHA will assist the City in developing the land use assumptions in conformance
with Chapter 395 of the Local Government Code and shall include:
1.1. Service Area Boundaries. KHA will meet with the City to review current
service areas for water, wastewater, and roadway impact fees. KHA will
work with City staff to revise the service area boundaries (if necessary)
KHA will review the existing roadway service areas and make
recommendations to the number of service areas so that each area does
not exceed the six (6) mile restriction as stated in Chapter 395 of the
Local Government Code.
1.2. Land Use Assumptions. KHA will provide City staff with an overview of
the information required as part of the Land Use Assumptions for Impact
Fees. This task will require the City to develop the following for use in
the Impact Fee calculations:
1.2.1 Existing population and employment information by service area
for the Year 2005;
1.2.2 Build-Out population and employment projections by service area;
1.2.3 Ten Year population and employment projections by service area
for the Year 2015;
1.2.4 All population information shall be reported by number of persons
and number of dwelling units; while all employment data shall be
classified as number of square feet of floor area for Basic, Service,
and Retail employment; and
1.2.5 Summary report to include with the Impact Fee Update showing a
general overview of methodology and results.
Task 2 - Water Impact Fee Update
$19,000
KHA will prepare the water impact fee update in conformance with Chapter 395
of the Local Government Code and shall include:
2.1. Data Collection. KHA will deliver a letter request to the City describing
water data that should be provided to KHA. The data collection is as
follows:
2.1.1 Water Master Plan - KHA will coordinate with the City to obtain
the latest water system master plan adopted by the City.
2.1.2 KHA will obtain water usage history - Annual water usage and
maximum day usage records for the past ten (10) years for
development of the service unit projection.
2.1.3 Trinity River Authority (TRA) wholesale water contract with the
City.
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Kimley-Horn
and Associates, Inc.
Mr. Barry LeBaron, AICP, March 1,2005, Page 3
2.1.4 TRA rate calculation with regards to the Cities cost obligation for
TRA water delivery facilities.
2.2. Infrastructure Capacity Criteria. KHA will coordinate with the City to
obtain the criterion for determining the ten (10) year capacity of the
following infrastructure:
2.2.1 Future Transmission Lines (12-inch and larger)
2.2.2 Existing and Future Elevated Storage Tanks
2.2.3 Existing and Future Ground Storage Tanks
2.2.4 Existing and Future Pump Stations
An analysis of the TRA rate calculation will be done to determine if
existing or future TRA facilities may be accounted for as part of the
Impact Fee Capital Improvements Plan.
A criterion will not be developed for existing City transmission lines.
2.3. Water Impact Fee Capital Improvements Plan. KHA will coordinate with
the City to develop the Water Impact Fee Capital Improvements Plan. It
will include the following infrastructure:
2.3.1 Future Transmission Lines (12-inch and larger)
2.3.2 Existing and Future Elevated Storage Tanks
2.3.3 Existing and Future Ground Storage Tanks
2.3.4 Existing and Future Pump Stations
Results of the TRA rate analysis will determine whether TRA facilities
will be included in the Impact Fee Capital Improvements Plan.
It will not include existing City transmission lines.
2.4. Maximum Assessable Water Impact Fee Calculation. KHA will calculate
the additional service units based on the Land Use Assumptions. KHA
will then calculate the Impact Fee per service unit, unit equivalents by
meter size and the Maximum Assessable Water Impact Fee table by meter
size. KHA will incorporate the financial analysis performed in Task 5 to
determine the maximum assessable impact fee by service unit.
2.5. Water Impact Fee Update Report. KHA will provide both a draft and
final Water Impact Fee Report. The report will include:
2.5.1 Water service area
2.5.2 Narrative of the impact fee update methodology
2.5.3 Impact fee calculations
2.5.4 Water Impact Fee CIP
2.5.5 Exhibits
~=~
Kimley-Horn
and Associates, Inc.
Mr. Barry LeBaron, AICP, March 1,2005, Page 4
2.5.6 Because of the relatively high printing costs and the challenge of
managing drafts and final versions of each major component of the
Impact Fee Update Report, draft versions of the Water Impact Fee
Report will be submitted in .pdf format.
2.6. Meetings. KHA will prepare for and attend the following meetings:
2.6.1 One (1) meeting with TRA staff to review the wholesale rate
calculation.
2.6.2 One (1) meeting with staff to review Water Impact Fee Capital
Improvements Plan
2.6.3 One (1) meeting with staff to review Maximum Assessable Water
Impact Fees
2.7. Deliverables
2.7.1 Data collection request letter
2.7.2 Electronic (.pdf) copy ofthe Draft Water Impact Fee Report
2.7.3 Upon final approval ofthe Impact Fee Update and new ordinance
by the City Council, KHA will provide twenty (20) originals of the
Final Impact Fee Update Report, including the Water Impact Fee
component ofthe Report (see Task 6).
Task 3 - Wastewater Impact Fee Update
$19,000
KHA will prepare the wastewater impact fee update in conformance with
Chapter 395 of the Local Government Code and shall include:
3.1. Data Collection. KHA will collect the following data:
3.1.1 Wastewater Master Plan - KHA will coordinate with the City to
obtain the latest wastewater system master plan adopted by the
City.
3.1.2 KHA will obtain wastewater usage history - Annual wastewater
usage and peak usage records for the past ten (10) years for
development of the service unit projection.
3.1.3 Trinity River Authority (TRA) wholesale wastewater contract with
the City.
3.1.4 TRA rate calculation with regards to the Cities cost obligation for
TRA wastewater collection facilities.
3.2. Infrastructure Capacity Criteria. KHA will coordinate with the City to
obtain the criterion for determining the ten (10) year capacity of the
following infrastructure:
3.2.1 Existing Trunk Lines that are 1 a-inch and larger
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Kimley-Horn
and Associates, Inc.
Mr. Barry leBaron, AICP, March I, ZOOS, Page S
3.2.2 Future Trunk Lines (8-inch and larger)
3.2.3 Existing and Future Lift Stations
3.2.4 Existing and Future Force Mains
An analysis of the TRA rate calculation will be done to determine if
existing or future TRA facilities may be accounted for as part of the
Impact Fee Capital Improvements Plan.
3.3. Wastewater Impact Fee Capital Improvements Plan. KHA will coordinate
with the City to develop the Wastewater Impact Fee Capital
Improvements Plan. It will include the following infrastructure:
3.3.1 Existing Trunk Lines that are lO-inch and larger
3.3.2 Future Trunk Lines (8-inch and larger)
3.3.3 Existing and Future Lift Stations
3.3.4 Existing and Future Force Mains
Results of the TRA rate analysis will determine whether TRA facilities
will be included in the Impact Fee Capital Improvements Plan.
3.4. Maximum Assessable Wastewater Impact Fee Calculation. KHA will
calculate the additional service units based on the Land Use Assumptions.
KHA will then calculate the Impact Fee per service unit, unit equivalents
by meter size and the Maximum Assessable Wastewater Impact Fee table
by meter size. KHA will incorporate the financial analysis performed in
Task 5 to determine the maximum assessable impact fee by service unit.
3.5. Wastewater Report. KHA will provide both a draft and final Wastewater
Impact Fee Report. The report will include:
3.5.1 Wastewater service area
3.5.2 Narrative of the impact fee update methodology
3.5.3 Impact fee calculations
3.5.4 Wastewater Impact Fee CIP
3.5.5 Exhibits
3.5.6 Because of the relatively high printing costs and the challenge of
managing drafts and final versions of each major component of the
Impact Fee Update Report, draft versions of the Wastewater
Impact Fee Report will be submitted in .pdf format.
3.6. Meetings. KHA will prepare for and attend the following meetings:
3.6.1 One (1) meeting with TRA staffto review the wholesale rate
calculation.
~=~
Kimley-Horn
and Associates, Inc.
Mr. Barry LeBaron, AICP, March I, 2005, Page 6
3.6.2 One (1) meeting with staff to review Wastewater Impact Fee
Capital Improvements Plan
3.6.3 One (1) meeting with staff to review Maximum Assessable
Wastewater Impact Fees
3.7. Deliverables.
3.7.1 Data collection request letter
3.7.2 Electronic (.pdt) copy of the Draft Wastewater Impact Fee Report
3.7.3 Upon final approval ofthe Impact Fee Update and new ordinance
by the City Council, KHA will provide twenty (20) originals of the
Final Impact Fee Update Report, including the Wastewater Impact
Fee component ofthe Report (see Task 6).
Task 4 - Roadway Impact Fee Update
$19,000
KHA will prepare the roadway impact fee update in conformance with Chapter
395 of the Local Government Code and shall include:
4.1. Data Collection. KHA will collect the following data:
4.1.1 Thoroughfare Plan - The City shall provide KHA the most recent
thoroughfare plan adopted by the City. GIS shapefiles, databases,
and layering information shall be provided if available.
4.1.2 Traffic Counts - The City shall provide data (current and
historical) for all roadway segments on the current Master
Thoroughfare Plan. If additional traffic counts are required, the
City will collect this additional data.
4.2. 10-Year Growth Proiections and Capacity Analysis.
4.2.1 KHA will use the service area boundaries established as part of
Task 1 (Land Use Assumptions). In consultation with the City
staff, KHA will determine land use categories to be included in the
land use vehicle-mile equivalency table.
4.2.2 KHA will identify the service units for new development and the
average trip length. Using the Seventh Edition ofthe Institute of
Transportation Engineer's (ITE) Trip Generation Manual, KHA
will develop updated trip generation and pass-by trip rates.
4.2.3 KHA will perform an analysis of existing conditions. This will
include a determination of roadway capacities, volumes, vehicle-
miles of supply, vehicle-miles of demand, existing excess capacity,
and existing deficiencies.
4.2.4 KHA will project traffic conditions for the ten-year planning
period, the target year for the impact fee growth projections. This
will include growth and new demand by service area. KHA will
determine the capacity available for new growth.
~=~
Kimley-Horn
and Associates, Inc.
Mr. Barry LeBaron, AICP, March 1,2005, Page 7
4.3. Roadwav Impact Fee Capital Improvements Plan
4.3.1 KHA will assist the City to develop a Roadway Impact Fee Capital
Improvements Plan, which will include cost projections for
anticipated projects to be included in the study. The Roadway
Impact Fee Capital Improvements Plan will include existing
oversized facilities and proposed facilities designed to serve future
development. The Roadway Impact Fee Capital Improvements
Plan shall include a general description of the project and a project
cost projection. Planning level cost projections for future projects
will be prepared based on previous experience with Roadway
construction costs. The City shall provide KHA with actual City
cost information for previously completed projects with excess
capacity and any cost contribution to County or State projects.
4.3.2 KHA will identify the portion of project improvements required to
serve existing demand and the portion of project improvements
required to serve new development within the lO-year planning
period.
4.4. Maximum Assessable Roadway Impact Fee Calculation. Using the newly
developed lO-year growth projections, roadway impact fee capital
improvements plan, and capacity available for new growth, KHA will
determine the cost of roadway improvements by service area, the
maximum costs per service unit, and the resulting maximum assessable
roadway impact fees by service area. KHA will incorporate the financial
analysis performed in Task 5 to determine the maximum assessable
impact fee per service unit.
4.5. Roadway Report. KHA will provide both a draft and final Roadway Impact
Fee Report. The report will include:
4.5.1 Roadway service areas
4.5.2 Narrative of the impact fee update methodology
4.5.3 Impact fee calculations
4.5.4 Roadway Impact Fee CIP
4.5.5 Exhibits
4.5.6 Because of the relatively high printing costs and the challenge of
managing drafts and final versions of each major component of the
Impact Fee Update Report, draft versions of the Roadway Impact
Fee Report will be submitted in .pdf format.
4.6. Meetings. KHA will prepare for and attend the following meetings:
4.6.1 One (1) meeting with staff to review the Roadway Impact Fee CIP
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Kimley-Horn
and Associates, Inc.
Mr. Barry LeBaron, AICP, March 1,2005, Page 8
4.6.2 One (1) meeting with staff to review the proposed Maximum
Assessable Roadway Impact Fees
4.7. Deliverables
4.7.1 Electronic (. pdt) copy of the Draft Roadway Impact Fee Report
4.7.2 Upon final approval of the Impact Fee Update and new ordinance
by the City Council, KHA will provide forty (40) originals of the
Final Impact Fee Update Report, including the Roadway Impact
Fee component of the Report (see Task 7).
Task 5 - Financial Analysis and Impact Fee Credit Determination
$8,000
A financial subconsultant will calculate maximum assessable impact fees for the
designated ten-year period for each service function (i.e. water, wastewater, and
roadways), as well as determine the water, wastewater, and roadway impact fee
credits in conformance with Chapter 395 of the Local Government Code. This
task shall include:
5.1. Select Appropriate Credit Option. In 2001, Chapter 395 was amended to
include a plan for awarding either a credit for the portion of ad valorem tax
and/or utility service revenues generated by new service units during the
program period that are used for payment of improvements that are
included in the impact fee capital improvements plan, or a credit equal to
50% of the total cost of the impact fee capital improvements plan. Using
the impact fee eligible capital improvement costs and projected service
units provided by KHA, the financial subconsultant will calculate the
maximum assessable, full-cost recovery impact fees, including applicable
financing costs, for the designated period. The financial subconsultant will
then meet with City Staff to determine the credit option (either the credit
determination or 50% of costs) that most appropriately satisfies the balance
between the City's funding requirements and the City's desired economic
growth.
5.2. Credit Determination. Assuming the City elects to pursue the credit option
involving ad valorem tax and/or utility service revenue, the financial
subconsultant will determine the appropriate credit, if any, and apply this
credit to the impact fee determination in accordance with Chapter 395
requirements. A critical component of this calculation is the examination
of funding practices involving existing projects that are impact fee eligible
under the newly calculated impact fees. Since Chapter 395 requires a
credit for ad valorem taxes and/or utility service revenues from new service
units used to fund impact fee eligible projects, a decision must be made as
to whether to maintain or modify the existing funding practice for existing
projects. The ultimate decision of either maintaining or modifying existing
~=~
Kimley-Horn
and Associates, Inc.
Mr. Barry LeBaron, AICP, March 1,2005, Page 9
funding practices is generally based on funding needs or the administrative
requirements of complying with Chapter 395.
5.3. Impact Fee Determination. After the credit determination is made, the
credit will be incorporated into the impact fee calculation. The impact fee
calculation performed by the financial subconsultant uses a financial
model, which fully recognizes the requirements of Chapter 395, including
the recognition of cash and/or debt financing, interest earnings, fund
balances, ad valorem taxes, and utility rate revenues.
5.4. Meetings and Presentations. After the impact fees have been calculated, the
financial subconsultant will meet with City Staff to review the impact fee
determination and address any outstanding issues and/or concerns. Staff's
comments and recommendations will be incorporated where appropriate.
KHA will incorporate the financial analysis and impact fee credit
determination into the final impact fee documentation.
Task 6 - Public Hearings and Approval
$3,500
6.1. Prepare for and attend one (1) joint CIAC / Council workshop to present
fundamentals of Impact Fees, a summary of the Impact Fee Update
methodology, and the respective CIP's and Maximum Assessable Impact
Fees
6.1.1 KHA will provide twenty-five (25) copies of the Draft Impact Fee
Update Report for distribution to the CIAC, Council, and staff
6.2. Upon final approval of the Impact Fee Update and new ordinance by the
City Council, KHA will provide twenty (20) copies of the Final Impact Fee
Update Report, including Land Use Assumptions, Water, Wastewater,
Roadway, and Financial Analysis components the Impact Fee Update.
6.3. Electronic (.pdf) copy of the Final Impact Fee Update Report
Mr. Bany LeBaron, AICP, March I, 2005, Page J 0
Additional Services
Services not specifically identified in the Scope of Services above shall be
considered additional and shall be performed on an individual basis upon
authorization by the City. Compensation for additional services will be agreed to
prior to their performance. Such services shall include, but are not limited to, the
following:
· Additional assistance in developing the land use assumptions outside of that
described in this agreement
· Preparation for and attendance at additional public meetings not specifically
identified in the Scope of Services
· Furnish additional copies of review documents and/or bid documents in
excess of the number of the same identified in the Scope of Services
· Reanalysis or recalculation to reflect project scope changes or policy changes
requested by the City, addressing changes in direction previously approved
by the City, or mandated by changing governmental laws.
Information Provided By Client
The master plan information used in the analysis shall be provided by the Client.
KHA shall be entitled to rely on the completeness and accuracy of all
information provided by the Client.
Schedule
Task I will be completed by the City with assistance from KHA following
receipt of a signed copy of this Letter Agreement. Tasks 2 through 5 will be
completed within four (4) months following receipt ofthe information required
as part of Task 1. Task 6 will be completed in a timely manner based upon CIAC
and City Council schedules, along with the requirements of Chapter 395 of the
Texas Local Government Code. Additional services, if desired, will be performed
in a timely manner upon authorization by the Client.
Fee and Billing
KHA will perform the services described in the Scope of Services for a lump sum
fee of $71,000. The fee breakdowns provided above are for budgeting purposes
only, and are not intended to represent a specific budget amount for each Lump
Sum task. KHA reserves the right to reallocate the budget among tasks as
determined necessary by KHA.
Fees will be invoiced monthly based upon the percentage of services completed
as of the invoice date. Payment will be due within 25 days of the date of the
InVOIce.
~=~
Kimley-Horn
and Associates, Inc.
Mr. Barry LeBaron, AICP, March 1,2005, Page 11
Closure
In addition to the matters 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 Colleyville.
If you concur in all the foregoing and wish to direct us to proceed with the
services, please have authorized persons execute both copies of this Agreement
in the spaces provided below, retain one copy, and return the other to us. Fees
and times stated in this Agreement are valid for sixty (60) days after the date of
this letter.
We appreciate the opportunity to provide these services to you. Please contact us
if you have any questions.
Very truly yours,
KIMLEY-HORN AND ASSOCIATES, INC.
4/?~
G. Brad Tribble, P.E.
Senior Vice President/Project Manager
GBT:
,2005.
CITY COUNCIL APPROVED
APR 5 2005
A
Official Seal:
, Witness
P:\000008.024\Colleyville\impacl_fee_update\c_ vil1e_impact_fee....Pf~sal_REV .doc
KIMLEY -HORN AND ASSOCIATES, INC.
STANDARD PROVISIONS
(1) Consultant's Scope of Services and Additional Services The Consultant's undertaking to perform professional
services extends only to the services specifically described in this Agreement. However, if requested by the Client and
agreed to by the Consultant, the Consultant will perform additional services ("Additional Services"), and such Additional
Services shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay the Consultant
for the performance of any Additional Services an amount based upon the Consultant's then-current hourly rates plus an
amount to cover certain direct expenses including in-house duplicating, local mileage, telephone calls, postage, and word
processing. Other direct expenses will be billed at 1.15 times cost. Technical use of computers for design, analysis, GIS,
and graphics, etc., will be billed at $25.00 per hour.
(2) Client's Responsibilities In addition to other responsibilities described herein or imposed by law, the Client shall:
(a) Designate in writing a person to act as its representative with respect to this Agreement, such person having complete
authority to transmit instructions, receive information, and make or interpret the Client's decisions.
(b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project including
all numerical criteria that are to be met and all standards of development, design, or construction.
(c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the project and all new data
reasonably necessary in the Consultant's opinion, such as site survey and engineering data, environmental impact
assessments or statements, zoning or other land use regulations, etc., upon all of which the Consultant may rely.
(d) Arrange for access to the site and other private or public property as required for the Consultant to provide its services.
(e) Review all documents or oral reports presented by the Consultant and render in writing decisions pertaining thereto
within a reasonable time so as not to delay the services of the Consultant.
(t) Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and
consents from other parties as may be necessary for completion of the Consultant's services.
(g) Cause to be provided such independent accounting, legal, insurance, cost estimating and overall feasibility services as
the Client may require or the Consultant may reasonably request in furtherance of the project development.
(h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the
scope and timing of the Consultant's services or any defect or noncompliance in any aspect of the project.
(i) Bear all costs incident to the responsibilities of the Client.
(3) Period of Services Unless otherwise stated herein, the Consultant will begin work timely after receipt of an executed
copy of this Agreement and will complete the services in a reasonable time. This Agreement is made in anticipation of
conditions permitting continuous and orderly progress through completion of the services. Times for performance shall be
extended as necessary for delays or suspensions due to circumstances that the Consultant does not control. If such delay or
suspension extends for more than six months (cumulatively), Consultant's compensation shall be renegotiated.
(4) Method of Payment Compensation shall be paid to the Consultant in accordance with the following provisions:
(a) Invoices will be submitted by the Consultant to the Client periodically for services performed and expenses incurred.
Payment of each invoice will be due within 25 days of receipt. The Client shall also pay to the Consultant all transaction
taxes, if any, whether state, local, or federal, levied with respect to amounts paid hereunder, including but not limited to
sales tax. The Consultant shall be compensated in U.S. dollars. Interest will be added to accounts not paid within 25 days
at the rate of 12% per annum beginning on the 25th day. If the Client fails to make any payment due the Consultant under
this or any other agreement within 30 days after the Consultant's transmittal of its invoice, the Consultant may, after giving
notice to the Client, suspend services under this Agreement until all amounts due are paid in full.
(b) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receipt of
the invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and owing.
(c) If the Consultant initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, its
reasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such expenses shall
include the cost, at the Consultant's normal hourly billing rates, of the time devoted to such proceedings by its employees.
(d) The Client agrees that the payment to the Consultant is not subject to any contingency or condition. The Consultant
may negotiate payment of any check tendered by the Client, even if the words "in full satisfaction" or words intended to
have similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed debt and
without prejudicing any right of the Consultant to collect additional amounts from the Client.
(5) Use of Documents All documents, including but not limited to drawings, specifications and data or programs stored
electronically, prepared by the Consultant are related exclusively to the services described in this Agreement, and may be
used only if the Client has satisfied all of its obligations under this Agreement. They are not intended or represented to be
suitable for use, partial use or reuse by the Client or others on extensions of this project or on any other project. Any
rev 07/04
modifications made by the Client to any of the Consultant's documents, or any use, partial use or reuse of the documents
without written authorization or adaptation by the Consultant will be at the Client's sole risk and without liability to the
Consultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and
expenses, including but not limited to attorneys' fees, resulting therefrom. Any authorization or adaptation will entitle the
Consultant to further compensation at rates to be agreed upon by the Client and the Consultant. Any electronic. files are
provided only for the convenience of the Client, and use of them is at the Client's sole risk. In the case of any defects in the
electronic files or any discrepancies between them and the hardcopy of the documents prepared by the Consultant, the
hardcopy shall govern. Only printed copies of documents conveyed by the Consultant may be relied upon. Because data
stored in electronic media format can deteriorate or be modified without authorization of the data's creator, the Client has 60
days to perform acceptance tests, after which it shall be deemed to have accepted the data transferred.
(6) Opinions of Cost Because the Consultant does not control the cost of labor, materials, equipment or services
furnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as
to costs, including but not limited to opinions as to the costs of construction and materials, shall be made on the basis of its
experience and represent its judgment as an experienced and qualified professional, familiar with the industry. The
Consultant cannot and does not guarantee that proposals, bids or actual costs will not vary from its opinions of cost. If the
Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator. Consultant's
services required to bring costs within any limitation established by the Client will be paid for as Additional Services.
(7) Termination The obligation to provide further services under this Agreement may be terminated by either party upon
seven 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, or upon thirty days' written notice for the convenience of the terminating
party. In the event of any termination, the Consultant shall be paid for all services rendered and expenses incurred to the
effective date of termination, and other reasonable expenses incurred by the Consultant as a result of such termination. If the
Consultant's compensation is a fixed fee, the amount payable for services will be a proportional amount of the total fee
based on the ratio of the amount of the services performed, as reasonably determined by the Consultant, to the total amount
of services which were to have been performed.
(8) Insurance The Consultant is protected by Workers' Compensation insurance, professional liability insurance, and
general liability insurance and will exchange certificates of insurance upon request. If the Client directs the Consultant to
obtain increased insurance coverage, or if the nature of the Consultant's activities requires additional insurance coverage, the
Consultant will take out such additional insurance, if obtainable, at the Client's expense.
(9) Standard of Care In performing its professional services, the Consultant will use that degree of care and skill
ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the
services are provided. No warranty, express or implied, is made or intended by the Consultant's undertaking herein or its
performance of services, and it is agreed that the Consultant is not a fiduciary with respect to the Client.
(10) Limitation of Liability In recognition of the relative risks and benefits of the Project to both the Client and the
Consultant, the risks have been allocated such that the Client agrees, to the fullest extent of the law, and notwithstanding any
other provisions of this Agreement, that the total liability, in the aggregate, of the Consultant and the Consultant's officers,
directors, employees, agents, and subconsultants to the Client or to anyone claiming by, through or under the Client, for any
and all claims, losses, costs or damages whatsoever arising out of, resulting from or in any way related to the services under
this Agreement from any cause or causes, including but not limited to, the negligence, professional errors or omissions,
strict liability or breach of contract or any warranty, express or implied, of the Consultant or the Consultant's officers,
directors, employees, agents, and subconsultants, shall not exceed twice the total compensation received by the Consultant
under this Agreement or $50,000, whichever is greater. Higher limits of liability may be negotiated for additional fee.
Under no circumstances shall the Consultant be liable for lost profits or consequential damages, for extra costs or other
consequences due to changed conditions, or for costs related to the failure of contractors to perform work in accordance
with the plans and specifications. This Section 10 is intended solely to limit the remedies available to the Client, and
nothing in this Section 10 shall require the Client to indemnify the Consultant.
(11) Certifications The Consultant shall not be required to execute any certifications or other documents that might, in
the judgment of the Consultant, increase the Consultant's risk or affect the availability, applicability, or cost of its insurance.
(12) Dispute Resolution All claims by the Client arising out of this Agreement or its breach shall be submitted first to
mediation in accordance with the Construction Industry Mediation Rules of the American Arbitration Association as a
condition precedent to litigation. Any mediation or civil action by Client must be commenced within one year of the accrual
of the cause of action asserted but in no event later than allowed by applicable statutes.
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(13) Hazardous Substances and Conditions
(a) Services related to determinations involving hazardous substances or conditions, as defined by federal or state law, are
limited to those tasks expressly stated in the scope of services. In any event, Consultant shall not be a custodian,
transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. Consultant's
services will be limited to professional analysis, recommendations, and reporting, including, when agreed to, plans and
specifications for isolation, removal, or remediation.
(b) The Consultant shall notify the Client of hazardous substances or conditions not contemplated in the scope of services
of which the Consultant actually becomes aware. Upon such notice by the Consultant, the Consultant may stop affected
portions of its services until the hazardous substance or condition is eliminated. The parties shall decide if Consultant is to
proceed with its services and if Consultant is to conduct testing and evaluations, and the parties may enter into further
agreements as to the additional scope, fee, and terms for such services.
(c) Except to the extent of negligence, if any, on the part of the Consultant in performing services expressly undertaken in
connection with hazardous substances and conditions, the Client agrees to hold harmless, indemnify, and defend the
Consultant from and against any and all claims, losses, damages, liability, and costs in any way arising out or connected
with the presence, discharge, release, or escape of hazardous substances or conditions of any kind, or environmental liability
of any nature, in any manner related to services of the Consultant.
(14) Construction Phase Services
(a) If the Consultant's services include the preparation of documents to be used for construction and the Consultant is not
retained to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for
construction observation, and the Client waives any claims against the Consultant in any way connected thereto.
(b) If the Consultant provides construction phase services, the Consultant shall have no responsibility for any contractor's
means, methods, techniques, equipment choice and usage, sequence, schedule, safety programs, or safety practices, nor shall
Consultant have any authority or responsibility to stop or direct the work of any contractor. The Consultant's visits will be
for the purpose of endeavoring to provide the Client a greater degree of confidence that the completed work of its
contractors will generally conform to the construction documents prepared by the Consultant. Consultant neither guarantees
the performance of contractors, nor assumes responsibility for any contractor's failure to perform its work in accordance
with the contract documents.
(c) The Consultant is not responsible for any duties assigned to the design professional in the construction contract that are
not expressly provided for in this Agreement. The Client agrees that each contract with any contractor shall state that the
contractor shall be solely responsible for job site safety and for its means and methods; that the contractor shall indemnify
the Client and the Consultant for all claims and liability arising out of job site accidents; and that the Client and the
Consultant shall be made additional insureds under the contractor's general liability insurance policy.
(15) Assignment and Subcontracting This Agreement gives no rights or benefits to anyone other than the Client and the
Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the
Client and the Consultant. The Client shall not assign or transfer any rights under or interest in this Agreement without the
written consent of the Consultant. The Consultant reserves the right to augment its staff with subconsultants as it deems
appropriate due to project logistics, schedules, or market conditions. If the Consultant exercises this right, the Consultant
will maintain the agreed-upon billing rates for services identified in the contract, regardless of whether the services are
provided by in-house employees, contract employees, or independent subconsultants.
(16) Confidentiality The Client consents to the use and dissemination by the Consultant of photographs of the project
and to the use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services.
If, however, any facts, data or information are specifically identified in writing by the Client as confidential, the Consultant
shall use reasonable care to maintain the confidentiality of that material.
(17) Miscellaneous Provisions This Agreement is to be governed by the law of the State of Texas. This Agreement
contains the entire and fully integrated agreement between the parties and supersedes all prior and contemporaneous
negotiations, representations, agreements or understandings, whether written or oral. Except as provided in Section 1, this
Agreement can be supplemented or amended only by a written document executed by both parties. Provided, however, that
any conflicting or additional terms on any purchase order issued by the Client shall be void and are hereby expressly
rejected by the Consultant. Any provision in this Agreement that is unenforceable shall be ineffective to the extent of such
unenforceability without invalidating the remaining provisions. The non-enforcement of any provision by either party shall
not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this
Agreement.
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