HomeMy WebLinkAboutPR: 18141: AGMT W/ FREESE AND NICHOLS FOR IMPLEMENTATION INTEROFFICE MEMORANDUM
TO: FLOYD T. JOHNSON, CITY MANAGER AND CITY COUNCIL
FROM: RONALD BURTON, DIRECTOR OF DEVELOPMENT SERVICES
SUBJECT: P.R. NO. 18141 — AGREEMENT WITH FREESE AND NICHOLS, INC. FOR THE
IMPLEMENTATION OF THE ENTERPRISE GIS IMPLEMENTATION PROGRAM — PHASE II
DATE: 01/14/2014
RECOMMENDATIONS:
It is recommended that the City Council approve Proposed Resolution No. 18141 authorizing
the City to enter into an agreement with Freese and Nichols, Inc. for the implementation of
the Enterprise GIS Implementation Program — Phase II in the not to exceed amount of
$300,000. Funds are available in accounts 001 - 1050- 517.54 -00 and 001 - 1051- 517.54 -00.
BACKGROUND:
Pursuant to Resolution No. 13 -229, the City of Port Arthur entered into an agreement with Freese
and Nichols, Inc. for the implementation of Phase I of the GIS Implementation Program.
BUDGETARY /FISCAL EFFECT:
Funds are available in accounts 001 -1050- 517.54 -00 and 001 - 1051- 517.54 -00.
EMPLOYEE /STAFF EFFECT:
None
SUMMARY:
It is recommended that the City Council approve Proposed Resolution No. 18141 authorizing
the City to enter into an agreement with Freese and Nichols, Inc. for the implementation of
the Enterprise GIS Implementation Program — Phase II in the not to exceed amount of
$300,000. Funds are available in accounts 001 - 1050- 517.54 -00 and 001 - 1051- 517.54 -00.
Attachment
P.R. NO. 18141
01 /14/2014 - PDL
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY TO ENTER INTO AN
AGREEMENT WITH FREESE AND NICHOLS, INC. FOR THE
IMPLEMENTATION OF THE ENTERPRISE GIS IMPLEMENTATION
PROGRAM — PHASE II IN THE NOT TO EXCEED AMOUNT OF
$300,000.00. FUNDING IS AVAILABLE IN ACCOUNT NUMBERS
001 - 1050- 517.54 -00 AND 001 - 1051- 517.54 -00.
WHEREAS, pursuant to Resolution No. 13 -229, the City of Port Arthur, Texas entered into
an agreement with Freese and Nichols, Inc. for the implementation of the Enterprise GIS
Implementation Program — Phase I; and,
WHEREAS, an agreement for Phase II will be entered into by the City of Port Arthur,
Texas, hereinafter called "Owner" and Freese and Nichols, Inc., hereinafter called
"FNI "; and,
WHEREAS, Freese and Nichols, Inc. has been selected as the professional of choice
because of their demonstrated competence and qualifications in the field as mandated by
Government Code Sections 2254.002 and 2254.003; and,
WHEREAS, the City of Port Arthur is working towards realizing the benefits of GIS as a
tool to increase cost savings and make better decisions about Community assets; and,
WHEREAS, generating GIS -based maps will greatly improve communication between
different departments, disciplines and professional fields throughout the City organization; and,
WHEREAS, the use of GIS will lead to modernizing the way the City of Port Arthur
operates by centralizing record keeping and better monitoring information; and,
WHEREAS, the City of Port Arthur agrees to employ FNI to perform professional services
in connection with the project: GIS Implementation Program — Phase II, as delineated in Exhibit
"A "; and,
WHEREAS, the City of Port Arthur agrees to pay FNI for all professional services
rendered in an amount not to exceed $300,000.00, as delineated in Exhibit "A "; now, therefore,
P.R. NO. 18141
01/14/2014 — PDL
Page 2 of 14
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR:
THAT, the facts and opinions in the preamble are true and correct.
THAT, the City Manager is hereby authorized and directed to execute the agreement for
professional services with Freese and Nichols, Inc., funding being available in accounts 001 -1050-
517.54 -00 and 001 - 1051- 517.54 -00, as attached hereto as Exhibit "A."
THAT, a copy of the caption of this resolution be spread upon the Minutes of the City
Council.
READ, ADOPTED, AND APPROVED, this day of January 2014, A.D., at a
Meeting of the City Council of the City of Port Arthur, Texas by the following vote: AYES:
Mayor:
Councilmembers:
Noes:
ATTEST: Deloris "Bobbie" Prince, Mayor
Sherri Bellard, City Secretary
APPROVED AS TO FORM:
' VII
.-6 Valecia Vizeno, City Attorney
P.R. NO. 18141
01/14/2014 — PDL
Page 3 of 14
APPROVED FOR ADMINISTRATION:
Floyd T. Johnson, City Manager
ocr
Ronald "Ron" Burton, Director of Development Services
APPROVED AS TO AVAILABILITY OF FUNDS:
,/
.lit S _
Deborah Echols, C.P.A., Director of Finance
Account: 001 -1050- 517.54 -00 and 001 -1051- 517.54 -00
P.R. NO. 18141
01/14/2014 — PDL
Page 4 of 14
EXHIBIT "A"
Rev. 12/12
AGREEMENT FOR PROFESSIONAL SERVICES
STATE OF TEXAS §
COUNTY OF TARRANT §
This AGREEMENT is entered into by the City of Port Arthur, Texas, hereinafter called "Owner" and Freese and
Nichols, Inc., hereinafter called "FNI." In consideration of the AGREEMENTS herein, the parties agree as
follows:
I. EMPLOYMENT OF FNI: In accordance with the terms of this AGREEMENT: Owner agrees to
employ FNI; FNI agrees to perform professional services in connection with the Project; Owner agrees
to pay to FNI compensation. The Project is described as follows: GIS Implementation Program —
Phase 2.
II. SCOPE OF SERVICES: FNI shall provide professional services in connection with Project as set
forth in Attachment SC - Scope of Services and Responsibilities of Owner which is attached to and
made a part of this AGREEMENT.
III. COMPENSATION: Owner agrees to pay FNI for all professional services rendered under this
AGREEMENT in accordance with Attachment CO - Compensation which is attached hereto and made a
part of this AGREEMENT. FNI shall perform professional services as outlined in the "Scope of
Services" for a lump sum fee of $300,000. Details concerning the fee are included in. Attachment CO.
If FNI's services are delayed or suspended by Owner, or if FNI's services are extended for more than 60
days through no fault of FNI, FNI shall be entitled to equitable adjustment of rates and amounts of
compensation to reflect reasonable costs incurred by FNI in connection with such delay or suspension
and reactivation and the fact that the time for performance under this AGREEMENT has been revised.
IV. TERMS AND CONDITIONS OF AGREEMENT: The Terms and Conditions of Agreement as set
forth as Attachment TC shall govern the relationship between the Owner and FNI.
Nothing under this AGREEMENT shall be construed to give any rights or benefits in this AGREEMENT to
anyone other than Owner and FNI, and all duties and responsibilities undertaken pursuant to this AGREEMENT
will be for the sole and exclusive benefit of Owner and FNI and not for the benefit of any other party.
This AGREEMENT constitutes the entire AGREEMENT between Owner and FNI and supersedes all prior
written or oral understandings.
This contract is executed in two counterparts.
IN TESTIMONY HEREOF, they have executed this AGREEMENT, the day of , 2014.
ATTEST: City of Port Arthur, Texas
(OWNER)
By:
Print or Type Name and Title
ATTEST: Freese and Nichols, Inc.
oftr7/L 11/4/' (FNI v & r.L„,
By: vA
Jess a L. Brown. P.E., Vice President
Print or Type Name and Title
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ATTACHMENT SC
SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER
ARTICLE I
BASIC SERVICES: FNI shall provide the following professional services in connection with the
development of the Project:
Phase 2: GIS Data Acquisition & Implementation
FNI will perform the following tasks to develop an Enterprise GIS for the following departments:
Development Services, Public Works and Emergency Services.
Task A: Develop Data Acquisition Plan
FNI will develop a Data Acquisition Plan. As part of this process, FNI will conduct two workshops with
City Staff to discuss the feature class fields and data collection process for populating those fields.
Al. Develop Fields for each Feature Class: FNI will develop fields for each feature class necessary to
create the maps recommended in the GIS Needs Assessment & Conceptual GIS System Design
Report.
A2. Conduct Workshop on Feature Class Fields (Workshop #1): FNI will conduct a workshop with City
staff to present and discuss the methodology and results of the feature class field development. FNI
will prepare and deliver meeting minutes documenting the discussion items.
A3. Develop Data Acquisition Plan: FNI will develop a Data Acquisition Plan to populate the fields for
each feature class necessary to create the maps recommended in the GIS Needs Assessment &
Conceptual GIS System Design Report.
A4. Conduct Workshop on Data Collection (Workshop #2): FNI will conduct a workshop with City staff
to present and discuss the proposed Data Acquisition Plan. FNI will prepare and deliver meeting
minutes documenting the discussion items.
Task B: Develop Enterprise GIS Phased Implementation Plan
FNI will develop a GIS Phased. Implementation Plan Report. As part of this process, FNI will work with
City Staff to complete the following for each feature class necessary to create the maps recommended in the
GIS Needs Assessment & Conceptual GIS System Design Report:
B I. Develop Data Standards: FNI will develop metadata standards for GIS data entry procedures.
B2. Develop Geodatabase Requirements and Data Models: FNI will develop geodatabase requirements
and data models for the feature classes necessary to create the maps recommended in the GIS Needs
Assessment & Conceptual GIS System Design Report.
B3. Recommend Implementation Phasing: FNI will evaluate and recommend implementation phasing to
populate each data model.
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SC -I OWNER
B4. Develop an Enterprise GIS Phased Implementation Plan Memo: FNI will develop an Enterprise GIS
Phased Implementation Plan Memorandum summarizing Tasks Bl-B3.
Task C: Program Management for the Implementation of the Enterprise GIS
FNI will act as the program manager for the implementation of the Enterprise GIS Phased Implementation
Plan, providing overall guidance to City staff who will be performing detailed data collection and data entry
tasks. As part of the program management, FNI will complete the following for each feature class
recommended in the GIS Needs Assessment & Conceptual GIS System Design Report:
C 1. Develop and Document Workflow: FNI will develop and document workflow for the information
prioritized at the Data Collection. Workshop.
C2. Develop QC Plan: FNI will develop a QC Plan for the field data collection and GIS data entry.
C3. Data Collection Assistance: FNI will provide one (1) GIS staff member on -site to assist the City with
the first two days of field data & imagery data collection. FNI will instruct users on recommended
methods for data collection.
C4. Quality Control: Perform Quality Control for GIS data entry according to the QC Plan.
C5. Geodatabase Structure Compliance: FNI will manage the geodatabase structure to achieve compliance
with the recommended geodatabase structure.
C6. Enterprise Geodatabase Modifications: FNI will assist with modifications to the Enterprise
geodatabase feature classes as needed.
Task D: Develop GIS Maintenance Plan
FNI will develop a GIS Data Maintenance Plan. As part of this process, FNI will develop sustainable
business processes and update procedures for Enterprise GIS data, software and hardware.
Dl. Develop Business Processes for the Enterprise GIS Maintenance: FNI will develop business processes
to support various department needs necessary to create and maintain the Enterprise GIS data, software
and hardware recommended in the GIS Needs Assessment & Conceptual GIS System Design Report.
D2. Develop an Enterprise GIS Data Maintenance Plan Memo: FM will develop an Enterprise GIS Data
Maintenance Plan Memorandum and update procedures for the feature classes necessary to create the
maps recommended in the GIS Needs Assessment & Conceptual GIS System Design Report. The Plan
will also include procedures for scheduling regular maintenance and backups for the server and
Enterprise database.
Task E: On -Call Services
El. As Needed Services: For services not defined above, FNI will negotiate a scope and fee to add an
additional task to the project.
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SC -2 OWNER �_
ARTICLE II
ADDITIONAL SERVICES: Additional. Services to be performed by FNI, if authorized by Owner, which
are not included in the above described basic services, are described as follows:
A. Field surveying required for the preparation of designs and drawings.
B. Field layouts or the furnishing of construction line and grade surveys.
C. Software Licenses.
D. Making property, boundary and right-of-way surveys, preparation of easement and deed
descriptions, including title search and examination of deed records.
E. Providing services to investigate existing conditions or facilities, or to make measured drawings
thereof, or to verify the accuracy of drawings or other information furnished by Owner.
F. Providing renderings, model, and mock -ups requested by the Owner.
G. Making revisions to drawings, specifications or other documents when such revisions are 1) not
consistent with approvals or instructions previously given by Owner or 2) due to other causes not
solely within the control of FNI.
H. Preparing applications and supporting documents for government grants, loans, or planning advances
and providing data for detailed applications.
I. Performing investigations, studies and analyses of substitutions of equipment and /or materials or
deviations from the drawings and specifications.
J. Providing environmental support services including the design and implementation of ecological .
baseline studies, environmental monitoring, impact assessment and analyses, permitting assistance,
and other assistance required to address environmental issues.
K. Visits to the site in excess of the number of trips included in Article I for periodic site visits,
coordination meetings, or contract completion activities.
L. Providing services made necessary because of unforeseen, concealed, or differing site conditions or
due to the presence of hazardous substances in any form.
M. Provide Geotechnical investigations, studies and reports.
ARTICLE III.
TIME OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this
AGREEMENT and agrees to complete services in accordance with the following schedule:
Data Acquisition. Plan: 60 days after Notice to Proceed
Preliminary Implementation: 300 days after Notice to Proceed
GIS Maintenance Plan: 360 days after Notice Proceed
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SC -3 OWNER
If FNI's services are delayed through no fault of FNI, FNI shall be entitled to adjust contract schedule
consistent with the number of days of delay. These delays may include but are not limited to delays in
Owner or regulatory reviews, delays on the flow of information to be provided to FNI, governmental .
approvals, etc. These delays may result in an adjustment to compensation as outlined on the face of this
AGREEMENT and in. Attachment CO.
ARTICLE IV
RESPONSIBILITIES OF OWNER: Owner shall perform the following in a timely manner so as not to
delay the services of FNI:
A. Designate in writing a person to act as Owner's representative with respect to the services to be
rendered under this AGREEMENT. Such person shall have contract authority to transmit
instructions, receive information, interpret and define Owner's policies and decisions with respect to
FNI's services for the Project.
B. Provide all criteria and full information as to Owner's requirements for the Project, including design
objectives and constraints, space, capacity and performance requirements, flexibility and
expandability, and any budgetary limitations; and furnish copies of all design and construction
standards which Owner will require to be included in the drawings and specifications.
C. Assist FNI by placing at FNI's disposal all available information pertinent to the Project including
previous reports and any other data relative to design or construction of the Project.
D. Arrange for access to and make all provisions for FNI to enter upon public and private property as
required for FNI to perform services under this AGREEMENT.
E. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents
presented by FNI, obtain advice of an attorney, insurance counselor and other consultants as Owner
deems appropriate for such examination and render in writing decisions pertaining thereto within a
reasonable time so as not to delay the services of FNI.
F. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project
and such approvals and consents from others as may be necessary for completion of the Project.
G. Furnish, or direct FNI to provide, Additional Services as stipulated in Attachment SC, Article II of
this AGREEMENT or other services as required.
H. Bear all costs incident to compliance with the requirements of this Article IV.
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SC -4 0 WNER
ARTICLE V
DESIGNATED REPRESENTATIVES: FNI and Owner designate the following representatives:
Owner's Designated Representative — , P. O. Box 1089, Port Arthur, Texas 77641;
Phone: Fax: email:
Owner's Accounting Representative —
FNI's Designated Representative — Richard Weatherly, P.E. 11200 Broadway St., Suite 2332, Pearland,
Texas 77584; Phone: 832 - 456 -4700; Fax: 832 - 456 -4701; email raw @freese.com
FNI's Accounting Representative — Jana Collier, 4055 International Plaza, Ste. 200, Fort Worth, Texas 76109;
Phone: 817- 735 -7354; Fax: 817- 735 -7496; email jvc @freese.com
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SC -5 OWNER
ATTACHMENT CO
COMPENSATION ,
Lump Sum: Compensation to FNI shall be the lump sum of Three Hundred Thousand Dollars ($300,000). If FNI sees the Scope of Services changing so
that additional services are needed, including but not limited to those services described as Additional Services in Attachment SC, FNI will notify OWNER
for OWNER'S approval before proceeding. Additional Services shall be computed based on the Schedule of Charges.
Schedule of Charges:
Position Min Max Position Min Max,
Architectural Intern I 78 95 O &G Engineer - Transition 139 174
Architectural Intern II 90 110 O &G Engineer I 100 123
Architectural Intern III 116 141 O &G Engineer II 124 127
Architect IV 130 132 O &G Engineer IV 183 186
Architect V 142 173 O &G Engineer V 197 210
Architect VI 162 218 O &G Engineer VI 205 283
Landscape Architectural Intern III 83 102 Environmental Scientist I 66 70
Landscape Architect IV 97 118 Environmental Scientist II 73 90
Landscape Architect V 145 180 Environmental Scientist III 83 124
Construction Contract Admin I 67 82 Environmental Scientist IV 116 148
Construction Contract Admin II 112 129 Environmental Scientist V 139 154
Document Control Specialist II 60 99 Environmental Scientist VII 178 222
Construction Manager I 78 92 Environmental Scientist VIII 181 228
Construction Manager II 90 126 Senior Geologist 120 147
Construction Manager III 93 146 Hydrologist II 94 115
Construction Manager IV 124 138 Hydrologist IV 123 128
Construction Manager V 156 216 Hydrologist V 122 149
Program Manager I 126 144 Hydrologist VI 171 209
Program Manager II 189 230 Planner IV 89 114
Engineer I 98 103 Planner V 111 136
Engineer II 103 141 Planner VI 176 208
Engineer Ill 108 140 Planner VII 198 242
Engineer IV 114 160 Technician I 56 58
Engineer V 141 185 Technician II 65 83
Engineer VI 167 221 Technician III 78 95
Engineer VII 224 228 Technician IV 88 125
Engineer VIII 253 261 CAD Designer 101 133
Group Manager 190 302 Senior CAD Designer 147 156
Principal 190 302 Designer II 128 157
Electrical Engineering Technologist 112 137 Senior Designer 160 183
Electrical Engineer II 96 117 GIS Analyst II 69 84
Electrical Engineer IV 137 152 GIS Analyst III 81 105
Electrical Engineer V 164 170 GIS Analyst IV 110 128
Electrical Engineer VI 211 215 GIS Analyst V 125 133
Geotechnical Engineer VI 193 236 3D Visualization Coordinator 148 181
Mechanical Engineer II 100 123 Cost Estimator 134 163
Mechanical Engineer III 105 128 Corporate Project Support 38 163
Mechanical Engineer V 165 166 Intern 31 61
Mechanical Engineer VI 208 255
Rates for In -House Services
Technology Charge Bulk Printing and Reproduction
$8.50 per hour Black and White $0.10 per copy
Color $0.50 per copy
Trave Plot - Bond $2.50 per plot
Standard IRS Rates Plot - Color $5.75 per plot
Plot - Other $5.00 per plot
Binding $5.75 per book
OTHER DIRECT EXPENSES:
Other direct expenses are reimbursed at actual cost times a multiplier of 1.15. They include outside printing and reproduction expense, communication
expense, travel, transportation and subsistence away from the FNI office and other miscellaneous expenses directly related to the work, including costs of
laboratory analysis, test, and other work required to be done by independent persons other than staff members. For Resident Representative services
performed by non -FNI employees and CAD services performed In -house by non -FNI employees where FNI provides workspace and equipment to perform
such services, these services will be billed at cost times a multiplier of 2.0. This markup approximates the cost to FNI if an FNI employee was performing
the same or similar services.
These ranges and rates will be adjusted annually.
340 - 022013
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CO -1 OWNER
10 -25 -07 ATTACHMENT TC
TERMS AND CONDITIONS OF AGREEMENT
1. DEFINITIONS: The term Owner as used herein refers to the City of Port Arthur, Texas . The temm FNI asused
herein refers to Freese and Nichols, Inc., its employees and agents; also its subcontractors and their employees and agents. As
used herein, Services refers to the professional services performed by Freese and Nichols pursuant to the AGREEMENT.
2. CHANGES: Owner, without invalidating the AGREEMENT, may order changes within the general scope of the WORK
required by the AGREEMENT by altering, adding to and /or deducting from the WORK to be performed. If any change under
this clause causes an increase or decrease in FM's cost of, or the time required for, the performance of any part ofthe Services
under the AGREEMENT, an equitable adjustment will be made by mutual agreement and the AGREEMENT modified in
writing accordingly.
3. TERMINATION: The obligation to provide services under this AGREEMENT may be terminated by either party upon ten
days' written notice. In the event of termination, FNI will be paid for all services rendered and reimbursable expenses incurred
to the date of termination and, in addition, all reimbursable expenses directly attributable to termination.
4. CONSEQUENTIAL DAMAGES: In no event shall FNI or its subcontractors be liable in contract, tort, strict liability,
warranty, or otherwise for any special, indirect, incidental or consequential damages, such as loss of product, loss of use ofthe
equipment or system, loss of anticipated profits or revenue, non - operation or increased expense of operation or other
equipment or systems.
5. INFORMATION FURNISHED BY OWNER: Owner will assist FM by placing at FM's disposal all available information
pertinent to the Project including previous reports and any other data relative to design or construction of the Project. FNI
shall have no liability for defects or negligence in the Services attributable to FNI's reliance upon or use of data, design
criteria, drawings, specifications or other information furnished by Owner and Owner agrees to indemnify and hold FNI
harmless from any and all claims and judgments, and all losses, costs and expenses arising therefrom. FNI shall disclose to
Owner, prior to use thereof, defects or omissions in the data, design criteria, drawings, specifications or other information
furnished by Owner to FNI that FNI may reasonably discover in its review and inspection thereof.
6. INSURANCE: FN1 shall provide to Owner certificates of insurance which shall contain the following minimum coverage
(All limits in thousands):
Commercial General Liability Workers' Compensation
General Aggregate $2,000 Each Accident $500
Automobile Liability (Any Auto) Professional Liability
CSL $1,000 $3,000 Annual Aggregate
7. SUBCONTRACTS: If, for any reason, at any time during the progress of providing Services, Owner determines that any
subcontractor for FNI is incompetent or undesirable, Owner will notify FNI accordingly and FNI shall take immediate steps for
cancellation of such subcontract. Subletting by subcontractors shall be subject to the same regulations. Nothing contained in
the AGREEMENT shall create any contractual relation between any subcontractor and Owner.
8. OWNERSHIP OF DOCUMENTS: All drawings, reports data and other project information developed in the execution of
the Services provided under this AGREEMENT shall be the property of the Owner upon payment of FM's fees for services.
FNI may retain copies for record purposes. Owner agrees such documents are not intended or represented to be suitable for
reuse by Owner or others. Any reuse by Owner or by those who obtained said documents from Owner without written
verification or adaptation by FN1 will be at Owner's sole risk and without liability or legal exposure to FM, or to FNI's
independent associates or consultants, and Owner shall indemnify and hold harmless FNI and FM's independent associates and
consultants from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. Any
such verification or adaptation will entitle FNI to further reasonable compensation. FNI may reuse all drawings, report data
and other project information in the execution of the Services provided under this AGREEMENT in FNI's other activities.
Any reuse by FNI will be at FNI's sole risk and without liability or legal exposure to Owner, and FNI shall indemnify and hold
harmless Owner from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom.
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FNI
OWNER
9. POLLUTANTS AND HAZARDOUS WASTES: It is understood and agreed that FNI has neither created nor contributed to
the creation or existence of any hazardous, radioactive, toxic, irritant, pollutant, or otherwise dangerous substance or condition
at the site, if any, and its compensation hereunder is in no way commensurate with the potential risk of injury or loss that may
be caused by exposures to such substances or conditions. The parties agree that in performing the Services required by this
AGREEMENT, FNI does not take possession or control of the subject site, but acts as an invitee in performing the services,
and is not therefore responsible for the existence of any pollutant present on or migrating from the site. Further, FM shall have
no responsibility for any pollutant during clean -up, transportation, storage or disposal activities.
I I OPINION OF PROBABLE COSTS: FNI will furnish an opinion of probable project development cost based on present
day cost, but does not guarantee the accuracy of such estimates. Opinions of probable cost, financial evaluations, feasibility
studies, economic analyses of alternate solutions and utilitarian considerations of operations and maintenance costs prepared
by FM hereunder will be made on the basis of FNI's experience and qualifications and represent FNI's judgment as an
experienced and qualified design professional. It is recognized, however, that FNI does not have control over the cost of labor,
material, equipment or services furnished by others or over market conditions or contractors' methods of determining their
prices.
11. CONSTRUCTION REPRESENTATION: If required by the AGREEMENT, FM will furnish Construction Representation
according to the defined scope for these services. FNI will observe the progress and the quality of work to determine in
general if the work is proceeding in accordance with the Contract Documents. In performing these services, FNI will endeavor
to protect Owner against defects and deficiencies in the work of Contractors; FNI will report any observed deficiencies to
Owner, however, it is understood that FM does not guarantee the Contractor's performance, nor is FNI responsible for the
supervision of the Contractor's operation and employees. FM shall not be responsible for the means, methods, techniques,
sequences or procedures of construction selected by the Contractor, or the safety precautions and programs incident to the
work of the Contractor. FM shall not be responsible for the acts or omissions of any person (except his own employees or
agent) at the Project site or otherwise performing any of the work of the Project. If Owner designates a person to serve in the
capacity of Resident Project Representative who is not a FM's employee or FNI's agent, the duties, responsibilities and
limitations of authority of such Resident Project Representative(s) will be set forth in writing and made a part of this
AGREEMENT before the Construction Phase of the Project begins.
12. PAYMENT: Progress payments may be requested by FNI based on the amount of services completed. Payment for the
services of FM shall be due and payable upon submission of a statement for services to OWNER and in acceptance of the
services as satisfactory by the OWNER. Statements for services shall not be submitted more frequently than monthly. Any
applicable new taxes imposed upon services, expenses, and charges by any governmental body after the execution of this
AGREEMENT will be added to FM's compensation.
If OWNER fails to make any payment due FNI for services and expenses within thirty (30) days after receipt of FNI's
statement for services therefore, the amounts due FNI will be increased at the rate of one percent (1 %) per month from said
thirtieth (30th) day, and, in addition, FNI may, after giving seven (7) days' written notice to OWNER, suspend services under
this AGREEMENT until FNI has been paid in full, all amounts due for services, expenses and charges.
13. ARBITRATION: No arbitration arising out of, or relating to, this AGREEMENT involving one party to this AGREEMENT
may include the other party to this AGREEMENT without their approval.
14. SUCCESSORS AND ASSIGNMENTS: OWNER and FM each are hereby bound and the partners, successors, executors,
administrators and legal representatives of OWNER and FM are hereby bound to the other party to this AGREEMENT and to
the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of
all covenants, agreements and obligations of this AGREEMENT.
Neither OWNER nor FNI shall assign, sublet or transfer any rights under or interest in (including, but without limitation,
moneys that may become due or moneys that are due) this AGREEMENT without the written consent of the other, except to
the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by
law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge
the assignor from any duty or responsibility under this AGREEMENT. Nothing contained in this paragraph shall prevent FNI
from employing such independent associates and consultants as FNI may deem appropriate to assist in the performance of
services hereunder.
15. PURCHASE ORDERS: If a Purchase Order is used to authorize FM's Services, only the terms, conditions /instructions typed
on the face of the Purchase Order shall apply to this AGREEMENT. Should there be any conflict between the Purchase Order
and the terms of this AGREEMENT, then this AGREEMENT shall prevail and shall be determinative of the conflict.
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FNI
OWNER