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HomeMy WebLinkAboutRes 2021-03-881 Agreement for Professional Engineering Servies as Shown in Exhibit ACITY OF ANNA, TEXAS RESOLUTION NO. A6 (" 6'3_ 6'6I A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES AS SHOWN IN EXHIBIT "A" ATTACHED HERETO, IN THE AMOUNT NOT TO EXCEED ONE HUNDRED FIFTY THOUSAND DOLLARS AND ZERO CENTS ($1503000); AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Anna is responsible for providing adequate public utility services to the community; and, WHEREAS, in order to provide for adequate public utility services to the community, preliminary engineering and permitting of sewer facilities is required; and, WHEREAS, the professional engineering services are for Capital Improvement Projects included in the City of Anna Community Investment Program and the Fiscal Year 2020- 2021 Annual Operating Budget, WWE-2020-05 and WWE-2020-06; and, WHEREAS, the total estimated cost of the services is $150,000, including $15,000 to be billed on an hourly not to exceed basis for additional coordination with Federal, State, County, and regional organizations pertaining to wastewater. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Authorization of Payment and Funding. That the City Manager is hereby authorized to execute the professional services agreement, in an amount not to exceed $150,000.00 for the City of Anna, Texas. That funding for the purchase orders shall come from the Wastewater Impact Fee Fund. PASSED AND APPROVED day of March 2021. ATTEST: by the City Council of the City of Anna, Texas on this-'�3r`�' City Secretary, Carrie L. Smith Myor, Nate Pike Exhibit "A" (see following pages) January 19, 2021 Mr. Greg Peters, P.E. Director of Public Works City of Anna 3223 North Powell Parkway Anna, TX 75409 Re; New Wastewater Treatment Facility Discharge Permit and Preliminary Engineering Report Dear Mr. Peters: Kimley-Horn and Associates, Inc. ("Kimley-Horn" or °Consultant") is pleased to submit this letter agreement (the "Agreement") to the City of Anna ("Client") for the Wastewater Treatment Plant Discharge Permit and Preliminary Engineering Report, PROJECT UNDERSTANDING It is our understanding that the Client desires to move forward with a new wastewater treatment facility (W1NfF) discharge permit and preliminary engineering report (PER) as required by TCEQ. We understand the client is responsible for property acquisition. The WA TF discharge permit and PER will be based on the site previously evaluated by Kimley-Horn. . SCOPE OF SERVICES Task 9 —Wastewater Treatment Facility Discharge Permit Kimley-Horn will prepare an application to the Texas Commission on Environmental Quality (TCEQ) for a wastewater discharge permit for the Client's Project, 1. Data Collection and Sampling Prooram a. Deliver a letter request to the Client describing data that should be provided by the Client. Kimley-Horn will also prepare and maintain a data collection log that includes data collection request and date of receipt. Data collection is anticipated to include the following: i. Available influent and effluent daily, weekly, monthly, quarterly, and annual sampling results for the last 4 years at existing City of Anna WWTP. ii. Sludge hauling records and contracts for the existing City of Anna WWTP iii. Existing City of Anna VWVfP discharge permit b. Prepare and submit a detailed 2-month sampling plan for Client to execute at the City of Anna WWTP to establish influent loading. Typical sampling parameters to be provided by Client include, but are not limited to, the following: i. Influent total BOD, COD, and filtered COD kimley-horn.com 260 East Davis Street, Suite 100, McKinney, Texas 75069 469-301-2580 Kimley>) Horn Page 2 ii. Influent TSS and VSS Influent TKN and Ammonia iv. Influent Total Phosphorus v. Influent pH and temperature 2. Determine Discharge Location and Permit Phasing a. Coordinate with the Client to establish a wastewater treatment facility discharge point that will be identified in the permit application on the site selected by the Client. b. Based on growth projections provided by the Client, prepare a preliminary wastewater phasing plan in order to quantify how much wastewater the service area could generate and establish permit phases. 3. Meetings Attend up to our (4) meetings with Client and adjacent landowners, other potential stakeholders and North Texas Municipal Water District concerning the proposed discharge location. 4. Pre-Aoolication Coordination with TCEQ Coordinate with the TCEQ to identify potential wastewater treatment facility discharge parameters. For the purposes of this scope, it is assumed that one (1) virtual meeting with TCEQ will be required. 5. Preliminary Treatment Facility Analysis Based on input from the Client and the TCEQ, prepare a preliminary wastewater analysis for the proposed development. The analysis will consist of the following tasks: a. Conduct one (1) virtual workshop to coordinate with the Client to establish general preferences on the following aspects of the proposed treatment facility: i. Treatment facility general site layout; ii. Vehicle access, paving and parking; His Wet and dry utilities iv. Odor control; v. Facilities (buildings, laboratories, etc.); vi. Solids management. vii. Operations. b. Evaluate up to two (2) treatment process options for treating the wastewater. Coordinate with treatment equipment vendors to obtain equipment cost on potential treatment processes that will meet TCEQ approval. c. Prepare preliminary calculations for the sizing of the wastewater treatment facility components for each treatment option. d. Prepare a Rough Order of Magnitude (ROM) Estimate for each treatment process option and provide recommendation to Client 6. Phasing Plan a. Analyze the overall sanitary sewer basin to determine ultimate capacity of the facility based on current wastewater master plan and land use assumptions. b. Preliminarily size units and evaluate up to three (3) conceptual layouts for expansion of the wastewater treatment facility to buildout flows. 260 East Davis Street, Suite 100, McKinney, Texas 75069 Kimlep) Horn Page 3 c. Identify a phased approach to the facility expansions. 7. Technical Memorandum a. Prepare a memorandum to the Client summarizing the analyses performed and provide recommendations for the proposed wastewater treatment facility. The letter shall consist of a technical summary, preliminary site exhibit, buildout site exhibit and phasing exhibit. b. Conduct one (1) virtual meeting to present technical memorandum findings. S. Preoaration of Permit Application Following approval by the Client of the Technical Memorandum, the Consultant shall prepare, submit and process a Wastewater Discharge Permit (WWDP) Application with the TCEQ. For the purposes of this scope, it is assumed that the application shall be prepared as a Texas Pollution Discharge Elimination System (TPDES) application for the discharge of the treated effluent into a tributary to Hurricane Creek. The Consultant shall prepare the following tasks in support of a WWDP Application: a. Prepare a TCEQ VWUDP Application for the Project. For the purposes of this scope, it is assumed that the following application components will be required: i. Domestic Administrative Report; ii. Domestic Technical Report; iii. Receiving Waters Worksheet 2.0; iv. Stream Characteristics Worksheet 2.1; v. Industrial Waste Worksheet 6.0; As Core Data Form. b. Prepare supporting documents required for the WWDP Application, including the following: i. Schematic site plan with buffer zone and floodplain requirements incorporated; ii. Affected Landowner Map; His USGS Discharge Route Exhibit; iv. Treatment Process Flow Diagram; v. Treatment Unit Dimensions Summary; vi. Design flow calculations; vii. Treatment unit capacity calculations. c. A Sewage Sludge Technical Report will be developed to document the quantities of sludge anticipated in the treatment process and the ultimate disposal of the sludge. If final treatment is to be by contract offsiteI by others, formal commitment and treatment capability will be obtained by the Client from the receiving treatment provider and documented to the TCEQ. d. Visit the proposed discharge location in order to gathersite data, such as photographs of the proposed treatment site and discharge route, required for the proposed WWDP Application. e. Following review of the Draft Permit Application packet by the Client, incorporate any Client comments and submit the Application packet to TCEQ. f. Respond to comments from TCEQ to assist in a TCEQ determination that the KimleywHorn Page 4 application is administratively complete. When notified by the TCEQ, publish an Intent to Obtain Permit notice in one (1) local newspaper and submit documentation to the TCEQ clerk. Distribute copies of the Permit Application in a public location determined by the Client. g. Respond to technical questions raised by TCEQ in review of the Permit Application. For the purposes of this scope, it Is assumed that there will be no more than two (2) rounds of technical comments from the TCEQ. h. Review TCEQ issued Draft Discharge Permit and offer corrections or suggestions for Permit conditions consistent with the project development. Coordinate review and comment input from the Client and system operator. i. Once authorized by TCEQ, publish Notice of Application and Preliminary Decision in one (1) local newspaper. Monitor request for public hearings or inquiries from interested parties and respond to questions. For the purposes of this scope, it is assumed that responses will be required from the Consultant for up to five (5) Inquiries, Qualifications /Exclusions: Consultant does not represent that the permit will be approved and issued by TCEQ, and Consultant's tees are not contingent on any approval or issuance of the permit. Task 2 -Preliminary Engineering Report The Consultant shall prepare, submit and process a Summary Transmttal Letter and Engineering Report as required by the TCEQ. The Consultant shall perform the following tasks in support of the Summary Transmittal Letter and Final Engineering Report: a. Size each treatment unit based on the selected treatment process from Task 1. Calculations, analyses, graphs, formulas, constants, and technical assumptions will be provided to support the design and sizing of each unit. b. Develop a process flow diagram for the treatment facility. c. Develop a schematic layout of the treatment units. d. Perform computer simulation modeling to prepare a solids balance to determine recycle ratios and sludge wasting rates for process control. e. Develop hydraulic model to determine the elevations of the treatment units and determine the sizing of interconnected piping. f. Prepare the Final Engineering Report Document including: i, types of units proposed and their capacities ii, detention times, surface loadings and weir loadings for each unit iii. plot of the hydraulic gradient at peak flow conditions iv, the recommended operation mode v. organic and volumetric loadings pertinent to each treatment unit vi. aeration demands and sizing of blowers g. Following review of the Draft Final Engineering Report packet by the Client, incorporate any Client comments and submit the Summary Transmittal Letter and Final Engineering Report packet to TCEQ. Kimley)) Horn Task 3 -Coordination Coordination work performed under this task may occurihroughout the project and will not be identified as part of other phases of this project. Coordination work may include, but not limited to the following: • Meetings with entities NOT identified above; • Attendance at Public meetings • Coordination with stakeholders Paye 5 • Progress reports; • Preparation and maintenance of project schedules; • Exchange of technical information such as exhibits, reports, etc. and the direct expenses associated with these items. Additional Services Additional services to be pertormed if authorized by the Client, but which are not included in the above -described Scope of Services, are as follows: • Preparation and submittal of LOMR/CLOMR • Design phase services. • Property acquisition services. • Wastewater master plan. • Survey services • Geotechnical engineering services • Preparation of platting documents and/or real property survey for site acquisition. • Accompanying the Client when meeting with the TCEQ, U.S. Environmental Protection Agency, or other regulatory agencies during the course of the Project, beyond those meetings Identified above. The Consultant will assist the Client on an as -needed basis in preparing compliance schedules, progress reports, and providing general technical support for the Client's compliance efforts. • Preparing applications and supporting documents for government grants, loans, or planning advances, and providing data for detailed applications. • Any additional changes to the Contract Documents necessary to break the project into phases. • Any services not listed in the Scope of Services. KimleywHorn Page Fee and Expenses Kimley-Horn will perform the services in Tasks 1 and 2 on a lump sum basis and Task 3 on a labor fee plus expense basis in accordance with the following tasks: Task 1 Wastewater Treatment Facility Discharge Permit $ 75,000 Task 2 Preliminary Enoineerinc Report $ 60,000 Total $135,000 (Lump Sum) Task 3 Coordination Hourly Lump sum fees will be invoiced monthly based upon the overall percentage of services performed. Hourly tasks will be performed on a labor fee plus expense basis. Labor fee will be billed on an hourly basis according to our then -current rates. Direct reimbursable expenses such as express delivery services, fees, air travel, and other direct expenses will be billed at 1.15 times cost. A percentage of labor fee will be added to each invoice to cover certain other expenses such as telecommunications, in-house reproduction, postage, supplies, project related computer time, and local mileage. Administrative time related to the project will be billed hourly. All permitting, application, and similar project fees will be paid directly by the Client. Payment will be due within 25 days of your receipt of the invoice. Due to the everchanging circumstances surrounding the COVID-19 Virus, situations may arise during the performance of this Agreement that affect availability of resources and staff of Kimley-Horn, the client, other consultants, and public agencies. There could be changes in anticipated delivery times, jurisdictional approvals, and project costs. Kimley-Horn will exercise reasonable efforts to overcome the challenges presented by current circumstances, but Kimley-Horn will not be liable to Client forany delays, expenses, losses, ordamages of any kind arising out of the impact of the COVID-19 Virus, Closure In addition to the matters set forth herein, our Agreement shall include and be subject to, and only to, the attached Standard Provisions, which are incorporated by reference. As used in the Standard Provisions, "Consultant' shall refer to Kimley-Horn and Associates, Inc., and "Client" shall refer to the City of Anna. 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. Fees and times stated in this Agreement are valid for sixty (60) days after the date of this letter. 260 East Davis Street, Suite 1U0, McKinney, Texas 75069 Kimlep) norn Page 7 We appreciate the opportunity to provide these services to you. Please contact me if you have any questions. Very truly yours, KIMLEY-HORN AND ASSOCIATES, INC. Todd Strouse, P.E. Associateirroject Manager Jeff James, P.E. Senior Vice President Attachment —Standard Provisions CITY OF ANNA (Print Name and itle) r (Date) r a 469-30t-258Q KIMLEY-HORN AND ASSOCIATES, INC. STANDARD PROVISIONS (1) Consultants Scope of Services and Additional Services. The Consultant vrill perform only the services specifically described in this Agreement, 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 Consultants 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 herein or imposed bylaw, the Client shall: (a) Designate in writing a person to act as its representative, 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 and ail standards of development, design, or construction. (c) Provide the Consultant all available studies, plans, or other documents pertaining to the project, such as surveys, engineering data, environmental information, etc., all of which the Consultant may rely upon. (d) Arrange for access to the site and other property as required for the Consultant to provide its services. (e) Review all documents or reports presented by the Consultant and communicate decisions pertaining thereto within a reasonable time so as not to delay 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. (g) Obtain any independent accounting, legal, insurance, cost estimating and feasibility services required by Client (h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the Consultant's services or any defect or noncompliance in any aspect of the project. (3) Period of Services. Unless otherwise stated herein, the Consultant will begin work after receipt of a properly executed copy of this Agreement. This Agreement assumes 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, Consultant's compensation shall be renegotiated. (4) Method of Payment. Client shall pay Consultant as follows: (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 and applied against the final invoice. Interest will be added to accounts not paid within 25 days atthe rate of 12% per year beginning on the 25h day. If the Client fails to make any payment due 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. (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. (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 and data 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 or reuse by the Client or others on extensions of this project or on any other project. Any modifications by the Client to any of the Consultant's documents, or any reuse of the documents without written authorization 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 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 Rev 1020 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 hardoopy of the documents prepared by the Consultant, the hardcopy shall govern. (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 the costs of construction and materials, are made solely based on its judgment as a 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. Consultants 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, or upon thirty days' written notice for the convenience of the terminating party. 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. (8) 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 performance of services, and it is agreed that the Consultant is not a fiduciary with respect to the Client. (9) LIMITATION OF LIABILITY, IN RECOGNITION OF THE RELATIVE RISKS AND BENEFITS OF THE PROJECT TO THE CLIENT AND THE CONSULTANT, THE RISKS ARE ALLOCATED SUCH THAT, TO THE FULLEST EXTENT ALLOWED BY 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 SUBCONSULTANTSTO 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 OR IN ANY WAY RELATED TO THE SERVICES UNDER THIS AGREEMENT FROM ANY 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 LIMITSOF LIABILITY MAYBE NEGOTIATED FOR ADDITIONAL FEE THIS SECTION 9 IS INTENDED SOLELY TO LIMIT THE REMEDIES AVAILABLE TO THE CLIENT OR THOSE CLAIMING BY OR THROUGH THE CLIENT, AND NOTHING IN THIS SECTION 9 SHALL REQUIRE THE CLIENT TO INDEMNIFY THE CONSULTANT. (10) 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. (11) Construction Costs. Under no circumstances shall the Consultant be liable for extra costs or other consequences due to unknown conditions or related to the failure of contractors to perform work in accordance with the plans and specifications. Consultant shall have no liability whatsoever for any costs arising out of the Clients decision to obtain bids or proceed with construction before the Consultant has issued final, fully -approved plans and specifications. The Client acknowledges that all preliminary plans are subject to substantial revision until plans are fully approved and all permits obtained. (12) Certifications. All requests for the Consultant to execute certificates, lender consents, or other third -party reliance letters must be submitted to the Consultant at least 14 days prior to the requested date of execution. The Consultant shall not be required to execute certificates, consents, 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 American Arbitration Association as a condition precedent to litigation. Any mediation or civil action by Client must be commenced within two years of the accrual of the cause of action asserted but in no event later than allowed by applicable statutes. (14) Hazardous Substances and Conditions. 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 analysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, Rev1020 or remediation. The Consultant will notify the Client of unanticipated hazardous substances or conditions of which the Consultant actually becomes aware. 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 prepares construction documents 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) 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. ( %) The Consultant is not responsible for any duties assigned to it 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 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 assignor 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 suboonsultants 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 written document executed by both parties. 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 10/20 YCi��—�-� Z 00 osf I num a MA c 1 r r. W E z 0 s A z G. U W oW(EA o a HE UW� Eco a