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Item 4DCity of Southlake, Texas MEMORANDUM January 16, 2007 TO: Shana Yelverton, City Manager FROM: Robert H. Price, P.E., Director of Public Works SUBJECT: Authorize a Professional Services Agreement with Kimley -Horn and Associates, Inc. to prepare Roadway Impact Fee Study Update. Action Requested: Authorize the agreement noted above. Background Information: Chapter 395 of the Local Government Code requires that impact fees be updated every five (5) years and we are in the process of updating our studies and analysis supporting impact fees. Consultants are typically used in these updates to provide professional services. Financial Considerations: The attached Kimley -Horn and Associates, Inc. agreement has both Basic Services and Additional services proposed. The amount of the Basic Services proposed is $ 33,000 and the amount of the additional services proposed is $7,500. The fees will be funded through current impact fee accumulations. Citizen Input/ Board Review: None required related to the agreement. There will be public hearings held during the impact fee update process. Legal Review: The City Attorney's office has reviewed this agreement and has been engaged in the impact fee update process from the beginning. Alternatives: Approve or Deny the agreement. Supporting Documents: Professional Services Agreement from Kimley -Horn and Associates, Inc dated January 4, 2007 as noted above. Staff Recommendation: Authorize the services agreement as it relates to the roadway impact fee update. E MPI Kimley -Horn MNI and Associates, Inc. January 4, 2007 Mn Robert H� Price, P. E. Director of Public Works City of Southlake 1400 S, Main Street, Suite 320 Southlake, TX 76092 Re: City of Southlake Roadway Impact Fee Update Southlake, Texas Dean Mr. Price: Kimley -Horn and Associates, Inc. (KHA) is pleased to submit this Letter Agreement to the City of Southlake (City or Client) to provide professional services to conduct an update to its current Roadway Impact Fee study. Our project understanding, scope of'services, schedule, and fee are below.. Project Understanding The goal of this project is to update the Roadway Impact Fee study for the City of Southlake and determine whether or not any changes to the current roadway impact fees are warranted.. This scope of services will provide the City of Southlake with the technical analysis required by Chapter 395 of the Texas Local Government Code to determine update the maximum assessable roadway impact fee that may be assessed, In addition, KHA will provide the City with assistance with the various presentations required during the public hearing and adoption process. To conduct the update, KHA will utilize the Master Thoroughfare Plan as currently adopted. Any analysis related to amending the City's Thoroughfare Plan will be considered additional services. Scope of Services If services beyond those defined in this scope are to be required, KHA will confer with the Client to receive further authorization before such additional services are performed, Task I — Land Use Assumptions A. Data Collection KHA will coordinate with the City to obtain the following data: • City Contacts — The City shall provide the organization structure and contact information for the applicable City staff involved with the land use assumptions. M Suite 1025 881 Cherry Slreel, unit 11 Forl Worth. 'texas 76102 TEL 817 335 6511 FAX 817 335 5070 Kimley Mr Robes1 H Price, P G , January 4, 2007, Page 2 and Associates, Inc. Comprehensive Master Plans -- The City shall identify and provide the City's most recent comprehensive master plans. Maps — The City shall provide KHA with available AutoCAD or GIS shapefiles, associated databases, and layer files in ESRI ArcGIS 8..x format. All data shall be projected in NAI.7 83 State Plane, South Central Texas Zone coordinates. Data should include: • Current Zoning Map; • Future Land Use Plan Map; • City Limits and ETI Map; and • Most recent digital orthophotograph (DOQ) of the City. B. Service Area Boundaries KHA will meet with the City to update the roadway impact fee service area boundaries within the existing City limits consistent with the six (6) mile limit required by law.. KHA anticipates combining the current eight (8) service areas into three (3) service areas. C. Existing Land Use Assumptions The City will prepare the existing land use information in a format suitable for use in the roadway impact fee policy development.. The information will be presented in tabular form by roadway service area. For each service area, population (persons and number of dwelling units) and employment (amount of square footage of basic, service, and retail land uses) will be summarized.. The existing land use assumptions will be completed for the year 2006. D, Build -out Land Use Assumptions The City will develop the build -out demographics (population and employment) within the existing City Limits in tabular format for each roadway service area For each service area, population (persons and number of'dwelling units) and employment (amount of square footage of basic, service, and retail land uses) will be summarized. E, Ten -Year Land Use Assumptions Chapter 395 states that impact fees may only be used to pay for items included in the Impact Fee capital improvements plan and attributable to new service units projected over a period of time not to exceed ten (10) years, Based on projected development patterns and growth rates, the City will develop the Ten - Year Land Use Assumptions for the 2006 — 2016 planning window. Based upon the data collected in Taste 1,13, the percentage of the projected build out can be utilized to assist in this task, The City will complete the demographic table for each roadway service area.. F. Documentation The final Land Use Assumptions Report will be referenced in the Roadway Impact Fee report.. L7 M F1 Kirnley -Horn Mr Robert I I Mcc, P F , January 4, 2007, page 3 and Associates, Inc. Task 2 -- Roadway Impact Fee Update KHA will prepare the roadway impact fee update in conformance with Chapter 395 of the Local Government Code and shall include: A Data Collection KHA will coordinate with the City to obtain the following data: • City contacts — City shall provide the organization structure and contact information for the applicable City staff involved with the completion of the roadway capacity analysis and roadway impact fee CIP. • Master Thoroughfare Plan — The City shall provide K14A the most recent thoroughfare plan adopted by the City in AutoCAD or GIS format, KHA will utilize the thoroughfare plan as is currently adopted. Any analysis related to updating the City's currently adopted Masten Thoroughfare Plan will be considered additional services. • Traffic Counts — The City shall provide any available data (current and historical) for all roadway segments on the current Master Thoroughfare Plan. KHA will obtain recently completed traffic counts for state highway facilities from TxDUT. B. Ten -Year Growth Projections and Cgpacity Capacity Analysis. • In consultation with City staff, KHA will determine land use categories to be included in the land use vehicle -mile equivalency table. • KHA will identify the service units for new development and the average trip length. Using the 7"' Edition of the Institute of Transportation Engineer's (ITE) Trip Generation Manual, KHA will incorporate trip generation and pass -by trip rates, • KHA will perform an analysis of existing conditions. This will include a determination of roadway capacities, volumes, vehicle - miles of supply, vehicle -miles of demand, existing excess capacity, and existing deficiencies. • KHA will project traffic conditions for the ten -year planning period, the target year for the impact fee growth projections. This will include growth and new demand by service area, KHA will determine the capacity available or deficiencies for new growth. C, Roadway Impact Fee Capital Improvements Plan • KHA will assist the City to develop a Roadway Impact Fee Capital Improvements Plan which will include cost projections for anticipated projects to be included in the study. The Roadway Impact Fee Capital Improvements Plan will include existing oversized L7 M r KirnleyHorn Mr Robert rr Price, E' r , January 4, 2007, Page 4 and Associates, Inc. facilities and proposed facilities designed to serve future development. The Roadway Impact Fee Capital Improvements Plan shall include a general description of the project and a project cost projection. Planning level cost projections for future projects will be prepared based on discussion with local roadway construction contractors, City staff, and previous KHA experience with roadway construction costs, The City shall provide KHA with actual City cost information for previously completed projects with excess capacity and any cost contribution to County, State, Federal, or developer constructed projects. Due to the variety of unknowns associated with roadway project costs projections (ROW acquisition, utility relocations, etc.), and the fact that the costs projections may not include all of the elements contained within a City roadway project (e.g. stiectscape), the planning level project cost projections utilized in the roadway impact fee update should not be used for any future capital improvement planning within the City ofSouthlake. • KHA will identify the portion of projected improvements required to serve existing demand and the portion of project improvements required to serve new development within the 10-year planning period, D, Maximum Assessable Roadway Impact Fee Calculation.. Using the newly developed ten -year growth projections, roadway impact fee capital improvements plan, and capacity available for new growth, KHA will determine the cost of roadway improvements by service area, the maximum costs per service unit, and the resulting maximum assessable roadway impact fees by service area. If Task 2,E is authorized by the City, KHA will incorporate the financial analysis performed by the financial subconsultant in Task 2.F. to determine the maximum assessable impact fee per service unit, E. Financial Analysis If authorized by the City, a financial analysis will be performed to determine the impact fee credit as required by Chapter 395, Using the impact fee eligible capital improvement costs and projected service units, the financial subconsultant will calculate maximum assessable full -cost recovery impact fees for the designated ten -year period for roadway facilities. The financial subconsultant will provide forecasted cash flows for the maximum assessable impact fee for the ten - year period based on projected capital improvement program's implementation schedule (if available) and growth in projected service units. KHA will work in conjunction with the financial subconsultant to incorporate the Capital Improvements Plan identified in Task 2.C. EI JI Kimley -Horn Mr Robert H Price, i' E , January 4, 2007, Page S and Associates, Inc F. Roadway Documentation KHA will provide both a draft and final Roadway Impact Fee Report The report will include: tl Roadway service areas; o Narrative of the impact fee methodology; Impact fee calculations; Roadway CIP; and • Supporting Exhibits. At the request of the City, KHA will review the proposed Roadway Impact Fee Ordinance as prepared by the City Attorney.. It is anticipated the City Attorney will require exhibits from the Roadway Impact Fee Report to be included in the ordinance, We recommend the City coordinate with their Attorney to ensure they will be able to prepare the ordinance during Task 3. G.. Meetings KHA will prepare for and attend the following meetings: Three (3) meetings with City staff to discuss and review the Roadway Impact Fee CIP; One (1) meeting with City staff to review the proposed Maximum Assessable Roadway Impact Fees; One (1) meeting with City staff to discuss the public hearings and approval process; and H. Deliverables Twenty (20) copies of the Draft Roadway Impact Fee Report; Electronic (.pdf) copy of the Draft Roadway Impact Fee Report; and Upon final approval of the Roadway Impact Fee Analysis and new ordinance by the City Council, KHA will provide ten (10) originals and one (1) electronic (.pdf) copy of the Final Roadway Impact Fee Report. Task 3 — Public Hearings and Approval It is anticipated that a representative from KHA will attend each of the following meetings: Prepare for and attend one (1) CIAC public hearing to present the CIP and Maximum Assessable Roadway Impact Fees; and Prepare for and attend one (1) City Council public hearing to present the Roadway Impact Fee Analysis, including the Roadway Impact Fee CIP and Maximum Assessable Impact Roadway Fees. C i Kimsey -Horn Mr Robert H Price, P E, January 4, 2007, Page G and Associates, Inc Additional Services Any services not specifically provided for in the above scope will be considered additional services and can be performed at our then current hourly rates.. Additional services we can provide include, but are not limited to, the following: • Prepare for and attend one (1) joint CIAC and City Council workshop to present fundamentals of Roadway Impact Fees, a summary of the Roadway Impact Fee Update methodology, the CIP and Maximum Assessable Roadway Impact Fees; • Prepare for and attend one (1) City Council meeting where it adopts the ordinance and establishes the actual Roadway Impact Fees. • Preparing the financial analysis summarized in Task 2-E • Analysis related to amending the City's Thoroughfare Plan; • Preparation for and attendance at additional meetings not specifically identified in the Scope of Services; • Furnish additional copies of documents in excess of the number of the same identified in the Scope of Services; • Reanalysis or recalculation to reflect project scope changes or policy changes requested by the City, addressing changes in direction previously approved by the City, or mandated by a change in governmental laws. We recommend the City budget approximately $7,500 for additional services (excluding the financial analysis summarized in Task 2..E).. Due to the unpredictable nature of the public hearing and adoption process as part of a roadway impact fee update, it is anticipated that additional meetings with CIAC and /or City Council will be required.. Information Provided By Client All basemapping data and CIP project cost information for completed projects used in the analysis shall be provided by the Client. KHA shall be entitled to rely on the completeness and accuracy of all information provided by the Client.. Schedule Tasks 1 and 2 will be completed within four (4) months following receipt of a signed copy of this fetter Agreement, exclusive of City review time and assuming has Task l complete upon receipt of a signed copy of this Letter Agreement. Task 3 will proceed in accordance with the requirements of' Chapter 395 of the Texas Local Government Code. Additional services, if desired, will be performed in a timely manner upon authorization by the Client. 1 Kimley -Horn Mr Robert H Price, P C , January 4, 2007, Page 7 and Associates, Inc Fee and Billing KHA will perform the services described in the Scope of Services (with the exception of Task 21) for the following lump sum fees: Task 1— Land Use Assumptions $1,000 Task 2 — Roadway Impact Fee Update $29,000 Task 3 — Public Hearings and Approval $3,000 Fees will be invoiced monthly based upon the percentage of services completed as of the invoice date. Payment will be due within 25 days of the date of the invoice. Closure In addition to the matters set forth herein, our Agreement shall include and be subject to, and only to, the terms and conditions in the attached Standard Provisions, which are incorporated by reference, As used in the Standard Provisions, the term "the Consultant" shall refer to Kimley -Horn and Associates, Inc.., and the terra "the Client" shall refer to the City of Southlake, If you concur in all the foregoing and wish to direct us to proceed with the services, please have authorized persons execute both copies of this Agreement in the spaces provided below, retain one copy, and return the other to us, Fees and times stated in this Agreement are valid for sixty (60) days after the date of this letter. We appreciate the opportunity to provide these services to you. Please contact us if you have any questions. L7 Kimley -Horn Mr Robert 11 Price, 1' E , January 4, 2007, Page 8 and Associates, Inc. Very truly yours, KIMLEY -HORN AND ASSOCIATES, INC. Gam- &/ -'� #1 Aaron W.. Nathan, RE. G Brad Tribble, P, E.. Project Manager Senior Vice President Attachment — Standard Provisions �,�.�xrrx�a.nzaso��m�rra?xrr_ air•_ uruam�S�u�F�3�G� _nsadwaY_�P_P�nPnsa� rnzd�r Agreed to this day of , 2007, THE CITY OF SOUTHLAKE, TEXAS A Municipality By: (Print or Type Name) Title: (As Authorized by Law) (Email Address) Witness (Print or Type Name) IUMLEY -HORN AND ASSOCIATES, INC. STANDARD PROVISIONS (1) Consultant's Scope of Services and Additional Services. The Consultant's undertaking to perform professional services extends only to the services specifically described in this Agreement However, if requested by the Client and agreed to by the Consultant, the Consultant will perform additional services ( "Additional Services "), and such Additional Services shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay the Consultant for the performance of any Additional Services an amount based upon the Consultant's then - current hourly rates plus an amount to cover certain direct expenses including in- ]rouse duplicating, local mileage, telephone calls, postage, and word processing. Other direct expenses will be billed at 1.15 times cost. Technical use of computers for design, analysis, GIS, and graphics, etc., will be billed at $25.00 per hour. (2) Client's Responsibilities, In addition to other responsibilities described herein or imposed by law, the Client shall: (a) Designate in writing a person to act as its representative with respect to this Agreement, such person having complete authority to transmit instructions, receive information, and make or interpret the Client's decisions. (b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for- the project including all numerical criteria that are to be met and all standards of development, design, or construction (c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the project and all new data reasonably necessary in the Consultant's opinion, such as site survey and engineering data, environmental impact assessments or statements, zoning or other land use regulations, etc., upon all of which the Consultant may rely. (d) Arrange for access to the site and other private or public property as required for the Consultant to provide its services. (e) Review all documents or oral reports presented by the Consultant and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of the Consultant. (f) Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents from other parties as may be necessary for completion of the Consultant's services. (g) Cause to be provided such independent accounting, legal, insurance, cost estimating and overall feasibility services as the Client may require or the Consultant may reasonably request in furtherance of the project development. (h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the scope and finning of the Consultant's services or any defect or noncompliance in any aspect of the project. (i) Bear all costs incident to the responsibilities of the Client. (3) Period of Services. Unless otherwise stated herein, the Consultant will begin work timely after receipt of an executed copy of this Agreement and will complete the services in a reasonable time. This Agreement is made in anticipation of conditions permitting continuous and orderly progress through completion of the services, Times for performance shall be extended as necessary for delays or suspensions due to circumstances that the Consultant does not control. If such delay or suspension extends for more than six months (cumulatively), Consultant's compensation shall be renegotiated. (4) Method of Payment. Compensation shall be paid to the Consultant in accordance with the following provisions: (a) Invoices will be submitted periodically, via regular mail or email, for services performed and expenses incurred, Payment of each invoice will be due within 25 days of receipt. The Client shall also pay to the Consultant all transaction taxes, if any, whether state, local, or federal, levied with respect to amounts paid hereunder, including but not limited to sales tax. The Consultant shall be compensated in U. S. dollars. Interest will be added to accounts not paid within 25 days at the rate of 12% per annum beginning on the 25'"' day. If the Client fails to make any payment due the Consultant under this or any other agreement within 30 days after the Consultant's transmittal of its invoice, the Consultant may, after giving notice to the Client, suspend services under this Agreement until all amounts due are paid in full (b) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receipt of the invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and owing.. (c) If the Consultant initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, its reasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such expenses shall include the cost, at the Consultant's normal hourly billing rates, of the time devoted to such proceedings by its employees. (d) The Client agrees that the payment to the Consultant is not subject to any contingency or condition The Consultant may negotiate payment of any check tendered by the CIient, even if the words "in full satisfaction" or words intended to have similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed debt and without prejudicing any right of the Consultant to collect additional amounts from the Client. (5) Use of Documents. All documents, including but not limited to drawings, specifications, reports, and data or programs stored electronically, prepared by the Consultant are related exclusively to the services described in this Agreement, and may be used only if the Client has satisfied all of its obligations under this Agreement. They are not intended or represented to be suitable for use, partial use or reuse by the Client or others on extensions of this project or on any other rev 08!06 project. Any modifications made by the Client to any of the Consultant's documents, or any use, partial use or reuse of the documents without written authorization or adaptation by the Consultant will be at the Client's sole risk and without liability to the Consultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting therefrom. Any authorization or adaptation will entitle the Consultant to further compensation at rates to be agreed upon by the Client and the Consultant.. Any electronic files not containing an electronic seal are provided only for the convenience of the Client, and use of them is at the Client's sole risk.. In the case of any defects in the electronic files or any discrepancies between them and the hardcopy of the documents prepared by the Consultant, the hardeopy shall govern Only printed copies of documents conveyed by the Consultant may be relied upon. Because data stored in electronic media format can deteriorate or be modified without the Consultant's authorization, the Client has 60 days to perform acceptance tests, after which it shall be deemed to have accepted the data. (6) Opinions of Cost. Because the Consultant does not control the cost of labor, materials, equipment or services furnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as to costs, including but not limited to opinions as to the costs of construction and materials, shall be made on the basis of its experience and represent its . judgment as an experienced and qualified professional, familiar with the industry. The Consultant cannot and does not guarantee that proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator. Consultant's services required to bring costs within any limitation established by the Client will be paid for as Additional Services. (7) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party, or upon thirty days' written notice for the convenience of the terminating party. If any material change occurs in the ownership of the Client, the Consultant shall have the right to immediately terminate this Agreement. In the event of any termination, the Consultant shall be paid for all services rendered and expenses incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result of'such termination If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional amount of the total fee based on the ratio of' the amount of the services performed, as reasonably determined by the Consultant, to the total amount of services which were to have been performed. (8) Insurance. The Consultant carries Workers' Compensation insurance, professional liability insurance, and general liability insurance. If the Client directs the Consultant to obtain increased insurance coverage, the Consultant will take out such additional insurance, if obtainable, at the Client's expense (9) Standard of Care. In performing its professional services, the Consultant will use that degree of care and skill ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the services are provided. No warranty, express or implied, is made or intended by the Consultant's undertaking herein or its performance of services, and it is agreed that the Consultant is not a fiduciary with respect to the Client. (10) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to both the Client and the Consultant, the risks have been allocated such that the Client agrees, to the fullest extent of the law, and notwithstanding any other provisions of this Agreement or the existence of applicable insurance coverage, that the total liability, in the aggregate, of the Consultant and the Consultant's officers, directors, employees, agents, and subconsultants to the Client or to anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages whatsoever arising out of, resulting from or in any way related to the services under this Agreement fi - om any cause or causes, including but not limited to, the negligence, professional errors or omissions, strict liability or breach of contract or any warranty, express or implied, of the Consultant or the Consultant's officers, directors, employees, agents, and subconsultants, shall not exceed twice the total compensation received by the Consultant under this Agreement or $50,000, whichever is greater.. Higher limits of liability may be negotiated for additional fee. Under no circumstances shall the Consultant be liable for lost profits or consequential damages, for extra costs or other consequences due to changed conditions, or for' costs related to the failure of contractors to perform work in accordance with the plans and specifications. Tlris Section 10 is intended solely to limit the remedies available to the Client, and nothing in this Section 10 shall require the Client to indemnify the Consultant. (11) Certifications, The Consultant shall not be required to execute certifications or third -party reliance letters that are inaccurate, that relate to facts of which the Consultant does not have actual knowledge, or' that would cause the Consultant to violate applicable rules of professional responsibility, (12) Dispute Resolution. All claims by the Client arising out of this Agreement or its breach shall be submitted first to mediation in accordance with the Construction Industry Mediation Rules of the American Arbitration Association as a rev 08106 2 condition precedent to litigation Any mediation or civil action by Client must be commenced within one year of the accrual of the cause of action asserted but in no event later than allowed by applicable statutes. (13) Hazardous Substances and Conditions, (a) Services related to determinations involving hazardous substances or conditions, as defined by federal or state law, are limited to those tasks expressly stated in the scope of services In any event, Consultant shall not be a custodian, transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. Consultant's services will be limited to professional analysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, or remediation. (b) The Consultant shall notify the Client of hazardous substances or conditions not contemplated in the scope of services of which the Consultant actually becomes aware. Upon such notice by the Consultant, the Consultant may stop affected portions of its services until the hazardous substance or condition is eliminated, The parties shall decide if Consultant is to proceed with its services and if Consultant is to conduct testing and evaluations, and the parties may enter into further agreements as to the additional scope, fee, and terms for such services. (14) Construction Phase Services. (a) If the Consultant's services include the preparation of documents to be used for construction and the Consultant is not retained to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for construction observation, and the Client waives any claims against the Consultant in any way connected thereto. (b) If the Consultant provides construction phase services, the Consultant shall have no responsibility for any contractor's means, methods, techniques, equipment choice and usage, sequence, schedule, safety programs, or safety practices, nor shall Consultant have any authority or responsibility to stop or direct the work of any contractor, The Consultant's visits will be for the purpose of endeavoring to provide the Client a greater degree of confidence that the completed work of its conlTactors will generally conform to the construction documents prepared by tire Consultant. Consultant neither guarantees the performance of contractors, nor assumes responsibility for any contractor's failure to perform its work in accordance with the contract documents (c) The Consultant is not responsible for any duties assigned to the design professional in the construction contract that are not expressly provided for in this Agreement.. The Client agrees that each contract with any contractor shall state that the contractor shall be solely responsible for site safety and for its means and methods; that the contractor shall indemnify the Client and the Consultant for all claims and liability arising out of . job site accidents; and that the Client and the Consultant shall be made additional insureds under the contractor's general liability insurance policy. (15) No Third -Party Beneficiaries; Assignment and Subcontracting. This Agreement gives no rights or benefits to anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the Client and the Consultant. The Client shall not assign or transfer any rights under or interest in this Agreement, or any claim arising out of the performance of services by Consultant, without the written consent of the Consultant. The Consultant reserves the right to augment its staff with subconsultants as it deems appropriate due to project logistics, schedules, or market conditions, If the Consultant exercises this right, the Consultant will maintain the agreed -upon billing rates for services identified in the contract, regardless of whether the services are provided by in -Douse employees, contract employees, or independent subconsultants. (16) Confidentiality. The Client consents to the use and dissemination by the Consultant of photographs of the project and to the use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services. If, however, any facts, data or information are specifically identified in writing by the Client as confidential, the Consultant shall use reasonable care to maintain the confidentiality of that material. (17) Miscellaneous Provisions. This Agreement is to be governed by the law of the State of Texas. This Agreement contains the entire and fully integrated agreement between the parties and supersedes all prior and contemporaneous negotiations, representations, agreements or understandings, whether written or oral. Except as provided in Section 1, this Agreement can be supplemented or amended only by a written document executed by both parties. Provided, however, that any conflicting or additional terms on any purchase order issued by the Client shall be void and are hereby expressly rejected by the Consultant.. Any provision in this Agreement that is unenforceable shall be ineffective to the extent of such unenforceability without invalidating the remaining provisions The non- enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this Agreement. rev 08 /06