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HomeMy WebLinkAboutContract 43286 (2)CITY SECRETARY CONTRACT NO. AGREEMENT FOR COST SHARING 2012-13 DOWNTOWN ACCESS AND CIRCULATION STUDY THIS AGREEMENT, entered into and effective as of the last date signed by a party hereto, is between the City of Fort Worth. a Texas Home -Rule Municipality ("City"), and Downtown Fort Worth, Inc ("DFWI"), a Texas 501(c)6 management, economic development and planning non- profit corporation. The City and DFWI are each a "Party" hereto and are sometimes referred to as the "Parties". WHEREAS, the latest Downtown Circulation Study was completed in 2002, known as the Downtown Access & Circulation Study (the "2002 Study"); and WHEREAS, downtown Fort Worth has experienced a number of changes in its transportation network, traffic patterns, and development intensities which have resulted in a shift in vehicular, pedestrian, and bicycle travel patterns in and around the downtown area since 2002; and WHEREAS, Downtown Fort Worth Inc. (DFWI) is planning to update its Downtown Strategic Action Plan during 2012-2013 which may also result in recommendations or suggested modifications to the transportation network; and WHEREAS, the City and DFWI desire to jointly engage a qualified consultant specializing in traffic circulation ("Consultant") to update the 2002 Study. NOW, THEREFORE, for and in consideration of mutual covenants and agreements herein contained, the Parties hereto mutually agree as follows: ARTICLE 1 DFWI AND CITY The City and DFWI will co-sponsor the update of the 2002 Study and related work contemplated by this Agreement. The City will participate in the cost of the Study in the amount of $25,000. DFWI will engage the Consultant, submit all payments to the Consultant and will assist with the Consultant's performance under this Agreement. The City will, within 30 days of City's execution of this agreement, the City will reimburse DFWI for the City's share of the cost upon presentation of an invoice by DFWI. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX v6-1 1-1 2 A09:39, IN ARTICLE 2 SERVICES Section 1 DFWI agrees to engage a Consultant to perform the services set forth in the Scope of Services attached hereto as Attachment "A". These services shall be performed in connection with the update of the 2002 Study, to be known as the 2012 Downtown Access & Circulation Study (the "2012 Study"). It shall be the responsibility of DFWI to ensure Consultant's compliance with the Scope of Services and this Agreement Section 2. Additional services, if any, must be requested in writing by DFWI. City and DFWI will not pay foi any work performed by the Consultant or its subconsultants, subcontractors and/or suppliers that have not been approved in writing. It is specifically agreed that Consultant shall not be compensated for any alleged additional, work resulting from oral orders of any person Section 3. Within 30 days of the date of the City's execution of this Agreement, the City will make payment to DFWI of the amount indicated in Section 1 for the City's share of all labor materials, supplies, and equipment necessary to complete the services described in Attachment ,,An. The Consultant shall provide a final invoice to DFWI upon completion and submission of the Study. Acceptance by Consultant of said final payment shall operate as and shall release DFWI and the City from all claims or liabilities under this Agreement for anything related to, done, or furnished m connection with the services for which payment is made, including any act or omission of the in connection with such services. ARTICLE 3 TERM Unless terminated pursuant to the terms herein, or extended in writing, this Agreement shall be for a term of one year beginning upon the date of its execution, or until the completion of the subject matter contemplated herein, whichever occurs first. ARTICLE 4 TERMINATION OF CONTRACT Section 1. Either DFWI or the City for cause may terminate this Agreement if either Party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance with 5 business days of written notice and pursue a diligent schedule to complete the corrections. ARTICLE 5 SEVERABILITY The provisions of this Agreement are severable, and if any word, phrase, clause. sentence, paragraph, section or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to other persons or circumstances shall not be affected thereby and this Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. ARTICLE 6 COUNTERPARTS This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement in multiple originals in Fort Worth, Texas. BY: BY: CITY OF FORT WORTH DOWNTOWN FORT WORTH, INC. 4.---et."---Cest..4 Fernando Costa Assistant City Manager Date: th M Andy Taft President Date: IOlV.w APPROVAL RECOMMENDED: By: (), ,/ DouglasWiersig Director, Transportation an ublic Works Department APPROVED AS TO FORM AND LEGALITY M&C No.: 4142- By: Douglas W. Black Assistant City Attorney ATTEST: Mary J. Kayser City Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX M&C Date: F ORS 4 Ve o s o 00° el 1/4 ibiciAsso, Mtlarnattmchar ATTACHMENT A May 24, 2012 Melissa Konur, AICP Planning Director Downtown Fort Worth, Inc. 777 Taylor Street, Suite 100 Fort Worth, TX 76102 Re: Update to the Downtown Access & Circulation Study (DACS) Fort Worth Texas Dear Ms. Konur: Kimley-Horn and Associates, Inc (KHA) is pleased to submit this Letter Agreement to Downtown Fort Worth Inc (DFWI or Client) to provide professional services to conduct an update / re-evaluation of the Downtown Fort Worth Access & Circulation Study (DACS) previously completed in 2002. The purpose of the study is to evaluate (at a planning level) options to modify or improve traffic flow circulation, parking, bicycle facilities, sidewalks, and other mobility related elements of the built environment of Downtown Fort Worth. KHA will review the impacts of these options from the perspective of traffic flow (level of service), pedestrian accommodation, walkability, safety, vehicle access, circulation, emergency vehicle access, and potential economic development impacts. Our project understanding, scope, schedule, and fee are below. Project Understanding KHA understands that in 2002, a Downtown Access & Circulation Study (DACS) Committee partnered with the City of Fort Worth Transportation and Public Works Department to evaluate and produce a report summarizing a variety of recommendations related to vehicle flow, traffic signalization, on - street parking, and other mobility related elements. A significant number of these recommendations have since been implemented. DFWI is now planning to commence a 2013 Update to the Downtown Fort Worth Strategic Action Plan entitled 'Plan 2023' (the plan was last updated in 2003) In conjunction with that effort, DFWI plans to perform an update to the DACS study. This scope of services provides for a planning level evaluation of various options for modifying the existing transportation network to improve access and circulation within Downtown, to be conducted in conjunction with ' Plan 2023" The following Scope of Services has been developed based on 1) our experience from previous studies, and 2) discussions with DFWI City of Fort Worth (City), and other downtown stakeholders. Ms. Melissa Konur, May 24, 2012, Page 2 Scope of Services For purposes of this study, the study area of Downtown is generally defined as the Trinity River and Bluff Street to the north, the BNSF railroad to the east, IH- 30 to the south, and Forest Park Boulevard to the west; however the coi e focus of the study will likely be within an area generally bounded by Belknap Street to the north Jones Street to the east, Lancaster Avenue to the south, and Henderson Street to the west. The following areas of focus have already been identified by the City and Client for consideration with this scope of services: Closure / modification of 15th Street (between Lancaster and Commerce); Conversion of 2nd Street from one-way to two-way (between Henderson and Taylor); Circulation around and access to City Hall (10`h, Monroe, Texas, and Jennings); Modifications that may be necessitated by the recent Hyde Park project (Throckmorton and 9`h); Evaluation of the Sundance Square Plaza project, with a focus on the following possibilities: o One-way to two-way conversion for 3rd and/or 4`h; o One-way to two-way conversion for Houston and/or Commerce; o Lane closures / street narrowing on 3 d, 4th Houston, Commerce, and/or Main; and o Partial or total roadway closures along Main. Other recommendations included but not yet implemented, as part of the 2002 DACS study. It should be noted that the evaluation of the modifications to 3rd and 4th Street will be conducted with an additional level of detail (increased data collection and analysis) as compared to the other areas of focus given that this potential modification from one-way to two-way traffic flow has not been previously evaluated or considered. Additional areas of focus may be identified by the Plan 2023 project team, other project stakeholders, and/or during the Plan 2023 public engagement process. Upon request by the Client and mutual agreement from KHA, up to two (2) additional areas of focus may be added to this scope of services (these additional areas, if any, would likely be identified during Task 1). Task 1 — Initial Stakeholder Meeting KHA will prepare for and attend a meeting of Downtown Fort Worth stakeholders (either separately or as part of the Plan 2023 process) to present a summary exhibit (likely on an aerial photo or street map) of the areas of focus that will be evaluated with this study The purpose of this meeting will be to review and discuss these areas, discuss any other existing circulation concerns, Ms. Melissa Konur, May 24, 2012, Page 3 and identify any additional focus areas. The intent of this meeting will be to engage downtown stakeholders to make them aware of the analysis and better understand any perceived or actual circulation and access issues in Downtown Fort Worth The meeting attendees will be identified and finalized by the Client; however we anticipate the group to include representatives from the City, the Fort Worth Transportation Authority, the DFWI Transportation Management Organization, and other key stakeholders identified by the Client. Task 2 — Data Collection KHA will collect the following data: Utilizing available transportation data for Downtown Fort Worth (including any available traffic count information, historical traffic studies, information provided by stakeholders, and existing signal timing information), the ENGINEER will develop a set of potential recommendations to mitigate those circulation and access concerns raised by the stakeholders in Task 1. A. Previously Collected Traffic Counts. KHA will collect recently collected readily available turning movement counts and recording machine counts from the City and TxDOT along study areas roadways within the focus areas B. Recording Machine Counts along 3rd and 4th Streets. KHA will conduct 72 hour recording machine counts (Thursday, Friday, and Saturday) at the following locations: 3rd Street: • Just east of Henderson; • Between Throckmorton and Houston; and • Between Main and Commerce. 4th Street: • Just east of Jones; • Between Commerce and Main; and • Between Houston and Throckmorton C. Turning Movement Counts along 3rd and 4th Streets In order to conduct a detailed evaluation of the options for 3rd and 4th Streets, KHA will conduct AM (7:00 a.m — 9 a.m.), PM (4:00 p.m. — 6:00 p m.), and weekend (Friday or Saturday evening 6:30 p.m — 8:30 p m) peak hour pedestrian and vehicle turning movement counts at the following intersections: 3rd Street &: • Taylor; • Throckmorton; • Houston; • Main• • Commerce; • Calhoun; and • Jones Ms. Melissa Konur, May 24, 2012, Pagc 4 4th Street &: • Jones; • Calhoun; • Commerce; • Main; • Houston; • Throckmorton; and • Taylor D. Initial Field Observation. Prior to our evaluation, KHA will conduct field observations within the study area during the AM PM, and weekend peak periods E. Proposed Development Information. The Client will provide KHA current information for any proposed developments within the study area that may have a significant impact on traffic flow and circulation (i e , number and type of land uses proposed, gross leasable floor area, number of apartment units, site plan layouts, and proposed points of ingress/egress). Task 3 — Analysis and Recommendations Using the feedback from Task 1 and the data collected in Task 2, KHA will evaluate and develop a set of recommendations for the identified focus areas. The recommendations may include one-way to two-way conversions (or vice versa), modifications to on -street parking (excluding issues related to specific recommendations for parking meter zones and time periods), general recommendations related to the management of municipal parking lane use changes, intersection improvements, pedestrian accommodations, bicycle accommodations street closures, geometric modifications, signalization changes, and sidewalks. KHA will prepare one (1) 22" x 34' exhibit summarizing all of the potential recommendations identified with this task. KHA will provide planning level project cost estimates for any identified improvements or modifications. Planning level estimates will include total project delivery costs (design survey, construction, and contingency). These exhibits will be based on available orthophotography, ' windshield level" survey, and planning level schematics; not detailed design level survey. To determine planning level costs for the potential implementation of a one-way to two-way conversion along 3rd and 4th, KHA will prepare a typical schematic for two intersections (one along 3rd Street and one along 4th Street) to develop a planning level 'per intersection' cost for this conversion This schematic will present the existing and proposed conditions at each location that is converted Ms. Melissa Konur, May 24, 2012, Page 5 from one-way to two-way operations in order to develop a planning level cost for the entire corridor. Any recommendations along or at intersections with on -system (TxDOT) facilities will require coordination and approval with TxDOT prior to their implementation Any necessary meetings or approvals from TxDOT shall be considered additional services. Task 4 — Stakeholder Review Meeting KHA will prepare for and attend a meeting of Downtown Fort Worth stakeholders (either separately or as part of the Plan 2023 process) to review and discuss the results and recommendations of Task 3. Task 5 — Document Study Results Using the information compiled in Tasks 1-4, KHA will prepare a summary technical memorandum documenting the information compiled in Task 1, the data collected in Task 2, the analysis and recommendations from Task 3 and the results of the Stakeholder Review meeting in Task 4. The information presented in the documentation will be at a planning level — no formal schematic design work will be performed as part of this scope of services. An electronic (pdf) draft technical memorandum will be prepared and submitted to the Client for review and comment KHA will meet with the Client to receive concurrence regarding the document KHA will then incorporate review comments and submit five (5) hard copies and one (1) electronic (.pdf) of the final technical memorandum to the Client Task 6 - Meetings In addition to the meetings identified in Tasks 1 and 4 KHA will prepare for and attend up to (3) meetings with the Client and/or the City (or other project stakeholders) to discuss and review the study. Additional Services Any services not specifically provided for in the above scope, as well as any changes in the scope the Client requests, will be considered additional services and will be performed at our then current hourly rates. The following items will be considered additional services: • Design services related to any recommended improvements; • Additional meetings• and • Additional site plan evaluations. Ms. Melissa Konur, May 24, 2012, Page 6 Information Provided By Client KHA shall be entitled to rely on the completeness and accuracy of all information provided by the Client. Schedule Tasks 1 through 6 will be completed within six (6) months following receipt of a signed copy of this Letter Agreement, exclusive of Client review time. Additional services, if desired, will be performed within a mutually agreed upon schedule, once authorized by the Client. Fee and Billing KHA will perform the services described in the Scope of Services for a lump sum fee of $49,500 Any permitting, application, and similar fees will be paid directly by the Client Fees and expenses will be invoiced monthly based upon the percentage of services performed as of the invoice date Payment will be due within 25 days of the date of the invoice. Closure In addition to the matters set forth herein, our Agreement shall include and be subject to, and only to the terms and conditions in the attached Standard Provisions, which are incorporated by reference. As used in the Standard Provisions, the term "the Consultant" shall refer to Kimley-Horn and Associates, Inc , and the term "the Client" shall refer to Downtown Fort Worth, Inc. 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. ---Remainder of page intentionally left blank--- (Email) — Attest: (Print or Type Name) Ms. Melissa Konur, May 24, 2012, Page 7 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. Aaron W. Nathan, P.E , AICP Scott Arnold, P.E., PTOE Project Manager Attachment — Standard Provisions Agreed to this day of jr 2012. DOWNTOWN FORT WORTH, INC. A Corporation By: (Date) r S. A�- N DQF,w r ipCr- - (Print or Type Name) acW • eat - U Contract Specialist , President/Vice President , Secretary/Assistant Secretary 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, which shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay the Consultant for any Additional Services an amount based upon the Consultant's then -current hourly rates plus an amount to cover certain direct expenses including telecommunications, in-house reproduction, postage, supplies, project related computer time, and local mileage. Other direct expenses will be billed at 1.15 times cost. (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, 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. (f) 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. (h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the scope, timing, or payment of the Consultant's services or any defect or noncompliance in any aspect of the project. (i) Bear all costs incidental to the responsibilities of the Client. (3) Period of Services. Unless otherwise stated herein, the Consultant will begin work timely after receipt of a properly executed copy of this Agreement and any required retainer amount. 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 periodically for services performed and expenses incurred. Payment of each invoice will be due within 25 days of receipt. The Client shall also pay any applicable sales tax. All retainers will be held by the Consultant for the duration of the project and applied against the final invoice 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 to 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 and withhold deliverables until all amounts due are paid in full and may commence proceedings, including filing liens, to secure its right to payment under this Agreement. (b) If the Client relies on payment or proceeds from a third party to pay Consultant and Client does not pay Consultant's invoice within 60 days of receipt, Consultant may communicate directly with such third party to secure payment. (c) 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 If the Client objects to only a portion of the invoice payment for all other portions remains due withm 25 days of receipt. (d) 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. (e) 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, reports, 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 Revll/ll 1 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 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. The Consultant's electronic files and source code developed in the development of application code remain the property of the Consultant and shall be provided to the Client only if expressly provided for in this Agreement Any electronic files not containing an electronic seal 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. Because data stored in electronic media format can deteriorate or be modified without the Consultant's authorization, the Client has 60 days to perform acceptance tests, after which it shall be deemed to have accepted the data. (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, Includmg 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. If any change occurs in the ownership of the Client, the Consultant shall have the right to immediately terminate this Agreement 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 carries Workers' Compensation insurance, professional liability insurance, and general liability insurance. If the Client directs the Consultant to obtain increased insurance coverage the Consultant will take out such additional insurance, if obtainable, at the Client's expense. (9) Standard of Care. The standard of care applicable to Consultant's services will be the degree of care and skill ordinarily exercised by consultants performing the same or similar services 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 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 or the existence of applicable insurance coverage 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 arismg 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 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 or those claiming by or through the Client, and nothing in this Section 10 shall require the Client to indemnify the Consultant (11) Mutual Waiver of Consequential Damages. In no event shall either party be liable to the other for any consequential, incidental, punitive, or indirect damages including but not limited to loss of income or loss of profits. Rev 11/I 1 2 (12) Certifications. The Consultant shall not be required to execute certifications or third -party reliance letters that are inaccurate that relate to facts of which the Consultant does not have actual knowledge, or that would cause the Consultant to violate applicable rules of professional responsibility. (13) 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 Procedures of the American Arbitiation 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. (14) Hazardous Substances and Conditions. In no event shall Consultant 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. 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. (15) 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. (16) No Third -Party Beneficiaries; 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 or any claim arising out of the performance of services by Consultant, 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. (17) 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. (18) 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 wiitten 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. Rev l l/I1 3