HomeMy WebLinkAboutRes 2022-03-1128 Prof Srvs Agree Freese & Nichols Consulting ServiceCITY OF ANNA, TEXAS
RESOLUTION NO. AOar a CJ5 •Gtab
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A PROFESSIONAL
SERVICES AGREEMENT WITH FREESE AND NICHOLS, INC., AND AUTHORIZING THE
CITY MANAGER TO EXECUTE SAME
WHEREAS, the City Council of the City of Anna, Texas (the y Council") has adopted a
strategic goal for a Comprehensive Development Ordinance update; and
WHEREAS, in September 2021, Staff issued a Request for Proposals (RFP) for professional
services to assist the City in reviewing and amending articles of Chapter 9 (Planning and
Development Regulations) within the City of Anna Code of Ordinance; and
WHEREAS, two (2) firms responded and after review of the responses, Staff is recommending
the selection of Freese and Nichols, Inc., to provide the professional services outlined in the
RFP for Planning Consulting Services; and
WHEREAS, the City Council has determined that approval of a Professional Services
Agreement with Freese and Nichols, Inc., to provide professional services in reviewing and
updating Planning and Development Regulations and other related projects will benefit the
residents of the City of Anna, Texas;
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. Approval of Professional Services Agreement
The City Council hereby approves the Professional Services Agreement attached hereto as
Exhibit 1, and ratifies and approves the City Manager's execution of the same. The City
Manager is hereby authorized to execute all documents and to take all other actions
necessary to act under and enforce the Agreement.
PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 22nd day
of March, 2022.
ATTEST:
Carrie L. Land, City Secretary
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Nathan Pike
Rev. 4/19
PROFESSIONAL SERVICES AGREEMENT
STATE OF TEXAS §
COUNTY OF COLLIN §
This Agreement is entered into by City of Anna, TX, hereinafter called "Client" and Freese and Nichols, Inc.,
hereinafter called "FNI." In consideration of the Agreements herein, the parties agree as follows:
EMPLOYMENT OF FNI: In accordance with the terms of this Agreement, Client agrees to employ and
compensate FNI to perform professional services in connection with the Project. The Project is described as
Anna Planning and Development Regulations. At all times, FNI shall operate solely as an independent
contractor. FNI and its officers, employees, agents, representatives and subcontractors shall not be entitled to
any benefits associated with City employment. The City shall not be responsible for the means, methods,
techniques, sequences or procedures for providing Services selected by the Contractor, or the safety
precautions and programs incident to the work of FNI.
II. SCOPE OF SERVICES: FNI shall render professional services in connection with Project as set forth in
Attachment SC — Scope of Services and Responsibilities of Client which is attached to and made a part of this
Agreement.
III. COMPENSATION: Client agrees to pay FNI for all professional services rendered under this Agreement. FNI
shall perform professional services as outlined in the "Scope of Services" for afee-not-to-exceed of Two
Hundred Thirty -Nine Thousand Five Hundred Dollars, $239,500,00, For a detailed cost estimate associated
for each phase and related to the creation of a downtown zoning district and a mixed -use zoning district, please
refer to EXHIBIT A.
If FNI's services are delayed or suspended by Client, 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—Terms and Conditions of Agreement shall govern the relationship between the Client and FNI.
Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other
than Client and FNI, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole
and exclusive benefit of Client and FNI and not for the benefit of any other party.
This Agreement is performable in Collin County, Texas and constitutes the entire Agreement between Client and
FNI and supersedes all prior written or oral understandings.
This contract is executed in two counterparts. IN TESTIMONY HEREOF, Agreement
%alllp;ri
Edmund Haas, Vice -President
Print Name and Title
Date: March/ 18, 2022
ATTEST:
City of na, TX
By:
of ► ZY1 Prr
Print Name anc
ATTACHMENT SC
SCOPE OF SERVICES AND RESPONSIBILITIES Cyr CITY
ARTICLE I
BASIC SERVICES: FNI shall render the following professional services in connection with the development
A the Project:
Introduction
The purpose of this Scope of Services is to develop updates to the City's existing Article 9.02 Subdivision
Regulations, Article 9.04 Zoning Ordinance, Article 9.05 Signs, and Article 9.07 Landscaping Regulations
(Planning and Development Regulations). The scope of the update will be based on City Staff and City
stakeholder input on the existing regulations and the creation of a downtown zoning district and mixed -
use zoning district.
FNI understands the City's desire to accommodate continued growth and development while verifying
proper development review and appropriate development controls. The City of Anna is not alone in this
endeavor. Many cities cope daily with outdated and/or unresponsive development ordinances. The City
has taken a positive step toward achieving its vision through the development and adoption of the new
comprehensive plan. The principal objective of updating the Planning and Development Regulations is to
implement the recently adopted plan and to create a set of development standards and procedures that
preserves the character and quality of the community while contributing to economic development and
overall well-being.
FNI proposes a work program structured in the following five phases.
Phase 1 will include a diagnostic analysis and report of the City's existing Planning and
Development Regulations. This diagnostic evaluation will result in the definition of problems and
issues arising out of the City's current regulations and practices against the backdrop of
community -approved goals and objectives.
Phase 2, Phase 3, and Phase 4 will be the actual preparation of Planning and Development
Regulations to implement the City's comprehensive planning objectives and the needs as
identified by staff, Commissioners, Councilmembers, developers, and citizens. The consensus
achieved during Phase 1 of the project should facilitate and accelerate the drafting process.
Phase 5 will include one joint workshop and one joint public hearing to refine the final draft
document and verify that the final products are reflective of the community's needs and desires.
Phase 1: Diagnostic Evaluation
A diagnostic analysis of the City's existing regulations and approval processes will lay the foundation for
writing the Planning and Development Regulations. This diagnostic evaluation will define problems and
issues arising out of the City's current codes and practices against the backdrop of community -approved
goals and objectives. After a consensus is reached between City Staff, the Planning & Zoning Commission,
City Council, and FNI regardingthe direction of the updated of the Planning and Development Regulations,
then FNI will begin the rewrite process.
ATTACHMENT SC
The report will incorporate an outline of the proposed recommendations on now the City's procedures
and regulations can be made more user-friendly, as well as opportunities the City can pursue to enhance
its public image and to proactively encourage cooperation and high -quality products from the
development community. This report will include a thorough review of the new comprehensive plan.Work
Plan for Developing the Diagnostic Report:
1) (Meeting #1 -Virtual) Meet with City Staff and Stakeholders to identify and investigate issues
arising from the use of current zoning and subdivision regulations
2) Prepare a draft diagnostic report
o Review background documents and recent developments as provided by City Staff
o Findings will be documented in an existing conditions summary within the diagnostic
report.
3) (Meeting #2 -Virtual) Conference call with City Staff for feedback on the draft diagnostic report
4) Revise the final diagnostic report based on feedback from City Staff.
5) (Meeting #3 — In -Person) Present the diagnostic report at a joint Planning &Zoning Commission
and City Council meeting.
Phase 2, Phase 3, and Phase 4: Planning and Development Regulations Preparation
FNI will create a downtown zoning district, mixed -use zoning district and update the development
regulations to include:
• User-friendly document design with hyperlinks
• Illustrations whenever possible to clearly depict intent of regulations
• Flexibility to allow for higher quality, creative developments
• Innovative subdivision/lot design to create dynamic and desirable neighborhoods
• Low -impact and environmentally -conscious design
• Sense of place and customized design standards, both City-wide and in specific areas
The process for creating the Planning and Development Regulations will be divided into Phase 2, Phase 3,
and Phase 4. The rationale for dividing the Planning and Development Regulations review into segments
is to allow for focused and topical discussion between City Staff and FNI. Additionally, the review of the
Planning and Development Regulations is more efficient if divided into manageable parts rather than
attempting to review the entire code at one time. Experience has proven that dividing the code into parts
allows for more in-depth discussion, review, and understanding of the material.
Work Plan for Developing the Planning and Development Regulations:
1) Phase 2 (Article 9.04: Zoning Regulations and Article 9.06: Landscape Regulations).
o Scope Context and Clarification:
■ City staff has identified that only two new districts need to be created.
■ The existing zoning district and associated district standards (Part 2.1.a, below)
will only need minor revisions if related updates occur elsewhere in the zoning.
Therefore, minimal effort shall be allocated for existing zoning district standards
Part 2.1.a, below).
o Part 2.1: Zoning districts, zoning district standards, and land use regulations
SC-2
ATTACHMENT SC
■ 2.1.a: Update existing zoning districts, district standards, and land use regulations
■ 2.1.b: Create two new zoning districts, a downtown district and a mixed -use -
district, and establish zoning district standards and land use regulations
o Part 2.2: Zoning development regulations, procedures, and landscaping regulations
■ 2.2.a. Update existing regulations and procedures
■ 2.2.b Create development regulations for the downtown district and mixed -use -
district
2) Phase 3 (Article: 9.05: Sign Regulations)
o Part 3.1: Update sign regulations based on the diagnostic report.
o Part 3.2: Update sign graphics to incorporate revisions.
3) Phase 4 (Article 9.02: Subdivision Regulations)
o Scope Context and Clarification.
■ City Staff has identified that minimal effort will be required to update the
subdivisions regulations.
■ City Staff has provided written subdivision revisions and comments during the
scoping process and requested the update effort focus on incorporating City
Staff's comments with minimal effort dedicated to this phase.
o Part 3.1: Update subdivision platting procedures
o Part 3.2: Update subdivision standards
Work Plan for Developing the Planning and Development Regulations: Phase 2
11 FNI develops and submits draft zoning districts and land use regulations (Art. 9.04) to City Staff
2) (Meeting #5 -Virtual) Feedback meeting with City Staff to review districts and land uses
3) FNI revises and submits districts and land uses for City Staff review
4) FNI revises and submits pre -final districts and land uses to City Staff
5) FNI develops and submits draft zoning development regulations and procedures
9.06) to City Staff
6) (Meeting #6 - Virtual) Feedback meeting with City Staff to review development regulations and
procedures
7) FNI revises and submits zoning development regulations and procedures for City Staff review
8) FNI revises and submits pre -final zoning development regulations and procedures s to City Staff
Work Plan for Developing the Planning and Development Regulations; Phase 3
1) FNI develops and submits draft zoning sign regulations (Art. 9.05) to City Staff
2) (Meeting #7 -Virtual) Feedback meeting with City Staff to review sign regulations
3) FNI revises and submits sign regulations for City Staff review
4) FNI revises and submits pre -final sign regulations to City Staff
ATTACHMENT SC
Work Plan for Developing the Planning and Development Regulations: Phase 4
1) FNI develops and submits draft subdivision regulations (Art. 9.02) to City Staff
2) (Meeting #S -Virtual) Feedback meeting with City Staff to review the subdivision regulations
3) FNI revises and submits the subdivision regulations for City Staff review
4) FNI revises and submits pre -final subdivision regulations to City Staff
Phase 5: Planning and Development Regulations Review and Adoption
Based on City Staff comments, FNI will prepare any necessary revisions to the Planning and Development
Regulations. As approved by the City Staff, a draft document will be delivered to the Planning & Zoning
Commission and City Council for public review.
FNI has extensive experience in presenting at and facilitating public meetings. We propose joint public
meetings to allow for all elected/appointed officials to work together and hear the same feedback from
the community. FNI recommends one joint public workshop with the Planning & Zoning Commission and
City Council to review the updated Planning and Development Regulations. Afterthe joint public meeting,
the Planning & Zoning Commission and City Council are anticipated to hold joint public hearings for the
possible adoption of the updated Planning and Development Regulations,
Work Plan for Adoption of the Planning and Development Regulations
1) Draft regulations will be sent to the City Council and P&Z
2) (Meeting #9 — In -Person) Joint Council and P&Z Workshop
3) FNI to incorporate any revisions and submit a final draft for public hearings for adoption
4) (Meeting #10 — In -Person) Joint Council and P&Z Public Hearing
5) FNI to submit final project deliverables
Engineering and Similar Technical Standards
It is anticipated that the City's construction and technical standards are currently adequate and will not
need revisions at this time. Any revisions to the City's current construction and technical standards shall
be performed by the City's Engineering Department (or by other engineering professionals, as may be
desired by the City) and at the City's direction and shall not be included within the scope of this contract.
Zoning Map
At the request of City Staff, no zoning map amendments, edits, or modifications are included in this scope.
Additionally, no GIS mapping services are included in this scope. Any revisions to the City's zoning map,
any zoning exhibits, or GIS services shall be performed or created by City Staff,
Meetings
This project scope includes nine (9) meetings as outlined above and within Exhibit A: Schedule. The
meetings have been programmed to be either virtual or in -person, and this scope includes six (6) virtual
meetings (e.g., Microsoft Teams) and three (3) in -person meetings.
ATTACHMENT SC
Illustrative Images
Illustrative digital files (PNG, JPEG, TIFF, etc.) created by FNI for use in the final deliverable shall not display
the FNI logo or any FNI identifiers. Examples of illustrative digital files shall include parking lot diagrams,
building graphics, or similar images. Said illustrative digital files will be owned by the City of Anna, with
FNI retaining the rights to use the illustrative digital files for marketing and proposal purposes.
Deliverables
FNI will provide electronic files necessary to edit and reproduce the document (i.e., Microsoft Word
docx and Adobe .pdf). FNI will provide ten (10) hard copies of the final Planning and Development
Regulations.
ATTACHMENT SC
ARTICLE II
ADDITIONAL SERVICES: Additional Services to be performed by FNI, if authorized by CITY, which are not
included in the above described basic services, are described as follows:
A. Providing renderings, model, and mock-ups requested by the CITY.
B. Making revisions to drawings or other report documents when such revisions are 1) not consistent
with approvals or instructions previously given by CITY or 2) due to other causes not solely within
the control of FNI.
C. 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 CITY.
D. Meeting or trips in excess of the number of meetings included in Article I for site visits,
coordination meetings, or other activities.
E. Preparing applications and supporting documents for government grants, loans, or planning
advances and providing data for detailed applications.
F. Preparing data and reports for assistance to CITY in preparation for hearings before regulatory
agencies, courts, arbitration panels or any mediator, giving testimony, personally or by
deposition, and preparations therefore before any regulatory agency, court, arbitration panel or
mediator.
G. Design, contract modifications, studies or analysis required to comply with local, State, Federal or
other regulatory agencies that become effective after the date of this agreement.
H. Providing basic or additional services on an accelerated time schedule. The scope of this service
include cost for overtime wages of employees and consultants, inefficiencies in work sequence
and plotting or reproduction costs directly attributable to an accelerated time schedule directed
by the CITY.
I. Preparing statements for invoicing or other documentation for billing other than for the standard
invoice for services attached to this professional services agreement.
J. Providing document revisions in excess of those outlined in Article I.
ATTACHMENT SC
ARTICLE III
TIME OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this
AGREEMENT and agrees to complete the above scope of services in agreement with the items shown on
EXHIBIT A: SCHEDULE.
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
CITY 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 CITY: CITY shall perform the following in a timely manner so as not to delay the
services of FNI:
A. Provide meeting space and coordinate equipment needs, room set up, and logistics for meetings
outlined in Article I.
B. Contact meeting invitees for stakeholder and public meeting. This includes email, mail, newsletter
or other forms of notification.
C. Designate in writing a person to act as CITY'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 CITY's policies and decisions with respect
to FNI's services for 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 and provide prompt feedback on all submittals, draft reports, sketches, drawings, and
other documents presented by FNI within a reasonable time so as not to delay the services of FNI.
F. Furnish, or direct FNI to provide, Additional Services as stipulated in Attachment SC, Article II of
this AGREEMENT or other services as required.
G. Bear all costs incident to compliance with the requirements of this Article IV.
EXHIBIT A: SCHEDULE WITH DETAILED FEE ESTIMATE
1 Meeting #1 (Virtual): Stakeholder Interviews $6,000
2 FNI to develop draft diagnostic report and submit to City Staff All
2a Effort Related to non -Downtown Zoning District and Mixed -Use Zoning District Items $18,000
,1 2b Effort Related to the Creation of the Downtown Zoning District and Mixed -Use Zoning District $2,000
3 Meeting #2 (Virtual): Staff Review Meeting $2,300
4 FNI to prepare the final diagnostic report and submit to City Staff
4a Effort Related to non -Downtown Zoning District and Mixed -Use Zoning District Items $4,000
4b Effort Related to the Creation of the Downtown Zoning District and Mixed -Use Zoning District $1,000
5 Meeting #3 (In -Person): Joint workshop with P&Z and Council to reach Consensus on Diagnostic Report $5,500
Phase 2: Develop Update Zoning• . 9,04) . Landscape Regulations (Article 9.06) .11
6 FNI develops &submits draft zoning districts &land use regulations (Art. 9.04) to City Staff oil
6a Effort Related to Updates for Existing Zoning Districts $12,500 ■.
6b Effort Related to Creation of the Downtown Zoning District and Mixed -Use Zoning District $17,500
7 Meeting #4 (Virtual): Feedback meeting with City Staff to review districts and land uses �y=ppw
N 7a Effort Related to Updates for Existing Zoning Districts $1,150
Fm 7b Effort Related to Creation of the Downtown Zoning District and mixed -Use Zoning District $1,150
8 FNI revises and submits districts and land uses for City Staff review
8a Effort Related to Updates for Existing Zoning Districts $4,250
8b Effort Related to Creation of the Downtown Zoning District and Mixed -Use Zoning District $4,250
9 FNI revises and submits pre -final districts and land uses to City Staff
9a Effort Related to Updates for Existing Zoning Districts $1,2S0
9b Effort Related to Creation of the Downtown Zoning District and Mixed -Use Zoning District $1,250
10 FNI develops and submits draft zoning development regs & procedures (Art. 9.04 & 9.06) to City Staff
l0a Effort Related to Updates for Existing Zoning Districts $10,000
10b Effort Related to Creation of the Downtown Zoning District and Mixed -Use Zoning District $20,000
11 Meeting #5 (Virtual): Feedback meeting with City Staff to review development regs and procedures
m 11a Effort Related to Updates for Existing Zoning Districts $1,150
N 11b Effort Related to Creation of the Downtown Zoning District and Mixed -Use Zoning District $1,150
CIO
12 FNI revises and submits zoning development regulations and procedures for final City Staff review
F-
12a Effort Related to Updates for Existing Zoning Districts $4,250
12b Effort Related to Creation of the Downtown Zoning District and Mixed -Use Zoning District $4,250
07
13 FNI revises and submits re -final zoning development regulations and procedures s to City Staff HUM
13a Effort Related to Updates for Existing Zoning Districts $11250
13b Effort Related to Creation of the Downtown Zoning District and Mixed -Use Zoning District $1,250
Phase 3: Develop Updated Sign Regulations1 :11
14 FNI develops & submits draft zoning sign regulations (Art. 9,05) to City Staff $35,000
Y 15 Meeting #6 (Virtual): Feedback meeting with City Staff to review sign regulations $2,300
1 16 FNI revises and submits sign regulations for final City Staff review $10,000
17 FNI revises and submits pre -final sign regulations to City Staff $2,500 j
Phase 4: Develop Update Subdivision. 1 : 1 1
18 FNI develops and submits draft subdivision regulations (Art. 9,02) to City Staff $21,500
Y 19 Meeting #7 (Virtual): Feedback meeting with City Staff to review subdivision regulations $2,300
F20 FNI revises and submits subdivision regulations for final City Staff review $10,500
21 FNI revises and submits pre -final subdivision regulations to City Staff $3,500
22 Draft regulations will be sent to the City Council and P&Z $7,500
,n 23 Meeting #8 (In -Person): Joint Council and P&Z Workshop $5,500
w 24 FNI to incorporate any revisions and submit final draft for public hearings for adoption $4,500
I
I'mm 25 Meeting #9 (In -Person): Joint Council and P&Z Public Hearing $5,500
26 FNI to submit final project deliverables $3,500
2/25/2022 Page 1 of 1 �� NICHOLS
ATTACHMENT CO
COMPENSATION
Compensation to FNI for Basic Services in Attachment SC shall be computed on the basis of the following Schedule of
Charges, but shall not exceed Two Hundred Thirty Nine Thousand Five Hundred Dollars ($239,500).
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 CLIENT for CLIENT's approval before
proceeding. Additional Services shall be computed based on the following Schedule of Charges.
Hourly Rate
Position
Min
Max
Professional 1
73
136
Professional 2
91
144
Professional
112
208
Professional
139
223
Professional
170
320
Professional
180
364
Construction Manager 1
81
161
Construction Manager 2
99
174
Construction Manager 3
153
205
Construction Manager 4
187
264
CAD Technician/Designer 1
65
135
CAD Technician/Designer 2
95
145
CAD Technician/Designer 3
122
190
Corporate Project Support 1
48
115
Corporate Project Support 2
67
160
Corporate Project Support 3
96
244
Intern / Coop
39
98
Rates
for
In -House Services and Equipment
Milea a
Bulk Printing and Reproduction
Standard
IRS Rates
B&W
Color
Small Format (per copy)
$0.10
$0.25
Technology
Charge
Large Format (per sq. ft.)
$8.50 per
hour
Bond
$0.25
$0.75
Glossy / Mylar
$0.75
$1.25
Vinyl / Adhesive
$1.50
$2.00
Mounting (per sq. ft.) $2.00
Binding (per binding) $0.25
OTHER DIRECT EXPENSES:
Equipment
Valve Crew Vehicle (hour)
$75
Pressure Data Logger (each)
$200
Water Quality Meter (per day)
$100
Microscope(each)
$150
Pressure Recorder (per day)
$100
Ultrasonic Thickness Guage (per day)
$275
Coating Inspection Kit (per day)
$275
Flushing / Cfactor(each)
$500
Backpack Electrofisher (each)
$1,000
Survey Grade
Standard
Drone (per day) $200
$100
GPS (per day) $150
$50
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. For
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, these services will be billed at a cost times a
multipler of 1.10. 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/or rates will be adjusted annually in February. Last updated 2021.
320022021
07-20 ATTACH M E NT TC
TERMS AND CONDITIONS OF AGREEMENT
1. DEFINITIONS: The term Client as used herein refers to the City of Anna, TX The term
FNI as used herein refers to Freese and Nichols, Inc., its employees and agents, and its subcontractors and their
employees and agents. As used herein, Services refers to the professional services performed by FNI pursuant to the
Agreement.
2. CHANGES: Client, 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 FNI's cost of, or the time required for, the performance of any part of the
Services, 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 10
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
of the 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 CLIENT: Client will 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. 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 Client and Client 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 Client,
prior to use thereof, defects or omissions in the data, design criteria, drawings, specifications or other information
furnished by Client to FNI that FNI may reasonably discover in its review and inspection thereof.
6. INSURANCE: FNI shall provide Client with certificates of insurance with the following minimum coverage:
Commercial General Liability Workers' Compensation
General Aggregate $2,000,000 As required by Statute
Automobile Liability (Any Auto) Professional Liability
CSL $1,000,000 $3,000,000 Annual Aggregate
7. SUBCONTRACTS: If, for any reason and at any time during the progress of providing Services, Client determines that any
subcontractor for FNI is incompetent or undesirable, Client 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 Client.
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 Client upon payment of FNI's fees for Services. FNI
may retain copies for record purposes. Client agrees such documents are not intended or represented to be suitable for
reuse by Client or others. Any reuse by Client or by those who obtained said documents from Client without written
verification or adaptation by FNI, will be at Client's sole risk and without liability or legal exposure to FNI, or to FNI's
independent associates or consultants, and Client shall indemnify and hold harmless FNI and FNI'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
Client, and FNI shall indemnify and hold harmless Client from all claims, damages, losses and expenses including
attorneys' fees arising out of or resulting therefrom.
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
Page 1 of 2 FNI EH
CLIENT . ,��
07-20 ATTACHMENT TC
the site. Further, FNI shall have no responsibility for any pollutant during clean-up, transportation, storage or disposal
activities.
10. 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 FNI hereunder will be made on the basis of FNI's experience and qualifications and represent FNI'sjudgment
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, FNI 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 report any
observed deficiencies to Client, however, it is understood that FNI does not guarantee the Contractor's performance,
nor is FNI responsible for the supervision of the Contractor's operation and employees. FNI 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. FNI shall not be responsible for the acts or omissions
of any person (except its own employees or agents) at the Project site or otherwise performing any of the work of the
Project. If Client designates a Resident Project Representative that is not an employee or agent of FNI, the duties,
responsibilities and limitations of authority of such Resident Project Representative will be set forth in writing and made
a part of this Agreement before the Construction Phase of the Project begins.
12. GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT: Client agrees to include provisions in the General
Conditions of the Construction Contract that require Contractor to include FNI: (1) as an additional insured and in any
waiver of subrogation rights with respect to such liability insurance purchased and maintained by Contractor for the
Project (except workers' compensation and professional liability policies); and (2) as an indemnified party in the
Contractor's indemnification provisions where the Owner is named as an indemnified party.
13. PAYMENT: Progress payments may be requested by FNI based on the amount of Services completed. Payment for the
Services of FNI shall be due and payable upon submission of a statement for Services to CLIENT and in acceptance of the
Services as satisfactory by the Client. 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 FNI's compensation.
If Client fails to make any payment due FNI for services and expenses within 30 days after receipt of FNI's statement for
services therefore, the amounts due FNI will be increased at the rate of 1 percent per month from said 30th day, and, in
addition, FNI may, after giving 7 days' written notice to Client, suspend services under this Agreement until FNI has been
paid in full, all amounts due for services, expenses and charges.
14. 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.
15. SUCCESSORS AND ASSIGNMENTS: Client and FNI each are hereby bound and the partners, successors, executors,
administrators and legal representatives of Client and FNI 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 Client 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.
16. PURCHASE ORDERS: If a Purchase Order is used to authorize FNI'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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