2-00339-2 Sample Contract.docx

PROFESSIONAL SERVICES AGREEMENT

FOR

Type of Service

WITH

INSERT COMPANY NAME

Contract Number Insert Contract Number

INDEX

WHEREAS, the Consultant has employees and subconsultants that are duly licensed and registered in the State of Texas, with the professional ability to provide Services necessary to complete the Project, if applicable.

NOW, THEREFORE, be it resolved that the Parties hereto do mutually agree as follows:

ARTICLE 1 - PROJECT

1.1 The River Authority agrees to retain the Consultant, and the Consultant agrees to provide Services in connection with the Project as set forth in this Agreement and the River Authority agrees to pay, and the Consultant agrees to accept fees as specified in the articles following as full and final compensation for the Services performed by Consultant and/or its subcontractors or subconsultants and accepted by River Authority.

1.2 The River Authority shall coordinate all Services for the Project and shall facilitate the exchange of information among other consultants retained by the River Authority for the Project and other governmental entities as necessary for the coordination of the Services. Moreover, all communications arising from or concerning the Services shall be forwarded first to the River Authority for approval prior to release unless otherwise authorized by the River Authority.

ARTICLE 2 - CONSULTANT SERVICES AND RESPONSIBILITIES

2.1 GENERAL

2.1.1 The Consultant shall perform Services for the River Authority as described herein. Except as set forth in this Agreement, the Consultant shall not have any duties or responsibilities for any other part of the Project.

2.1.2 The Consultant shall designate, in writing, the representative(s) authorized to act on the Consultant’s behalf with respect to this Project.

2.1.3 The Consultant’s Services shall be performed in character, sequence, and timing so they are coordinated with those of the River Authority, engineers, designers, consultants, and/or reviewing authorities for the Project.

2.1.4 The Consultant shall recommend to the River Authority such additional investigations, surveys, tests, analysis and reports as may be necessary or reasonably advisable for the proper execution of the Consultant’s Services on the Project.

2.1.5 The Consultant shall provide progress copies of papers, logs, registers, matrixes, presentations, narratives, checklists, analysis, surveys, drafts, models, maps, photographs, videos, booklets, notes including but not limited to field notes, memos, meeting minutes, correspondences, emails, calculations, reports, drawings, plans, specifications, other identified deliverables herein, GIS data, and any other requested information to the River Authority, engineers, consultants, and/or reviewing authorities in a timely manner as such documents become available in order to keep the Project on schedule.

2.1.6 Although all aspects of the Services performed by the Consultant shall be coordinated by the River Authority, the Consultant shall become familiar with the work produced by the River Authority, other engineers, designers, other consultants, and other interests as necessary for the proper coordination of the Project.

Insert others to whom River Authority has a contractual liability

2.1.7 Consultant is liable for all damages the River Authority may incur to the extent arising out of or resulting from the negligent acts or omissions of Consultant, including its agents, officers, directors, representatives, employees, contractors, subconsultants or subcontractors of Consultant or anyone for whom Consultant is legally liable.

2.2 SERVICES

2.2.1 All Services to be performed as part of this Agreement shall be in accordance with the Agreement, its executed amendments, its attachments, exhibits, schedules, and all applicable Federal, state, local laws, ordinances, statutes, codes, regulations, permits, orders, judgements, injunctions, guidance, policies, rules, restrictions including but not limited to those resulting from any initiatives or referendum process and other requirements of a governmental or quasi-governmental entity having jurisdiction over the Services and/or Project.

2.2.2 Services not included in the Consultant scope of Services or listed herein may be added later as negotiated and mutually agreed upon as additional services and will be incorporated by an amendment to the Agreement.

2.2.3 The Consultant shall be responsible for negligent acts and errors of omission in performing the Services and shall bear all costs for remedying the same.

ARTICLE 3 - CONTROL BY THE RIVER AUTHORITY

The River Authority will have control of the scope of the Services to be rendered and the timeline for delivery of the Services. No Services will be performed under the Agreement until the Consultant is authorized in writing to proceed with the Services.

ARTICLE 4 - TIME

For construction Projects:

4.1 The Agreement shall commence on the Effective Date, defined as the date the River Authority signs the Agreement, and shall terminate no later than sixty (60) calendar days after the final completion of the construction of the Project, (“Term”) unless sooner terminated by either Party in accordance with the Agreement. The Agreement may be extended in writing upon the mutual consent of the Parties. Billing rates will remain firm for one full calendar year, 365 days from the Effective Date of the Agreement. Thereafter, such rates may be renegotiated once in any given successive 365-day period and shall not exceed a three percent increase in any given period. Consultant shall send all requests to renegotiate rates to the River Authority’s contracting officer at contracts@sariverauthority.org no later than ninety (90) calendar days prior to the commencement of the next 365-day period. If approved by the River Authority, such rates shall be effective for all Services performed and accepted by River Authority on or after the succeeding 365-day period. Billing rate increases are not cumulative in nature and if Consultant fails to request rate adjustments in any given period, rates will remain fixed and the maximum billing rate increase for the following periods will remain three percent.

For manual renewal:

4.1 The Agreement shall commence on the Effective Date, which is defined as the date this Agreement is signed by the River Authority, and shall terminate one (1) year thereafter, unless sooner terminated by either Party (“Original Term”). The Parties shall have the option to renew the Agreement up to two (2) additional consecutive one-year terms (“Renewal Term”). River Authority may, at its sole discretion, further extend the Agreement up to an additional six (6) months after the final Renewal Term (“Extension”). Billing rates may be renegotiated once prior to execution of each Extension and/or Renewal Term but shall not exceed a three percent increase during any Extension or Renewal Term. Consultant shall send all requests to renegotiate rates to the River Authority’s contracting officer at contracts@sariverauthority.org no later than ninety (90) calendar days prior to the next scheduled Renewal Term or Extension. If approved by the River Authority, such rates shall be effective for all Services performed and accepted by River Authority on or after the next scheduled renewal date of the Agreement. Billing rate increases are not cumulative in nature and if Consultant fails to request rate adjustments in accordance with the Agreement, rates will remain fixed for the Renewal Term or Extension and the maximum billing rate increase for the next successive Renewal Term or Extension will remain three percent.

Automatic Renewal:

4.1 The Agreement shall commence upon the Effective Date, which is defined as the date this Agreement is signed by the River Authority, and continues for a period of X (X) year(s) from the Effective Date, unless otherwise terminated by the Parties in accordance with the Agreement, (“Original Term”). The Parties shall have the option to renew the Agreement up to two (2) additional consecutive one-year terms (“Renewal Term”). The Agreement automatically renews on the same terms for each additional year up to the maximum number of renewals stated above, unless either Party notifies the other of its intention not to renew the Agreement in writing ninety (90) days before the expiration of the Original Term or any Renewal Term. River Authority may, at its sole discretion, further extend the Agreement up to an additional six (6) months after the final Renewal Term (“Extension”). Billing rates may be renegotiated once prior to execution of each Extension and/or Renewal Term but shall not exceed a three percent increase during any Extension or Renewal Term. Consultant shall send all requests to renegotiate rates to the River Authority’s contracting officer at contracts@sariverauthority.org no later than ninety (90) calendar days prior to the next scheduled Renewal Term or Extension. If approved by the River Authority, such rates shall be effective for all Services performed and accepted by River Authority on or after the next Renewal Term or Extension of the Agreement. Billing rate increases are not cumulative in nature and if Consultant fails to request rate adjustments in accordance with the Agreement, rates will remain fixed for the Renewal Term or Extension and the maximum billing rate increase for the next successive Renewal Term or Extension will remain three percent.

4.2 The Consultant shall perform Services per the schedule and milestones in Exhibit X (Insert Exhibit with proposal) as expeditiously with professional skill and care and with due regard to the orderly progress of the Services to keep the Project on schedule. Throughout the Project, the Consultant shall submit to the River Authority’s Project manager, for approval, written monthly status reports which shall include at a minimum a description of the Services performed during the prior month, a timeframe for the completion of the outstanding Services for the Project as well as recovery plan for any Services more than sixty (60) calendar days behind schedule. The estimated time for completion of Services, when approved by the River Authority, shall not be exceeded by the Consultant, without reasonable cause and the prior written approval of the River Authority.

4.3 FORCE MAJEURE: Neither Party shall be responsible for any delay in the performance or progress of the Services, or liable for any costs or damages sustained resulting from such delay beyond its reasonable control, caused by any act or neglect by any federal, state or municipal government authority, or by acts of declared or undeclared war, public disorder, riot or civil commotion, or by fire, flood, natural disaster or any other similar cause(s) beyond the reasonable control and without the fault or negligence of the Party claiming the Force Majeure event. The Party claiming delays due to a Force Majeure event shall use its best efforts to eliminate and mitigate the consequences thereof. In the event of any such delay, the Consultant is required to promptly notify River Authority in writing and shall proceed with due diligence to alleviate such delay and continue the performance of all obligations under this Agreement. The time during which the Consultant is delayed in the performance of the Services due to a Force Majeure event as described herein shall be added to the time for completion of its Services to the extent such time is specified in this Agreement and agreed to by River Authority. All additional costs or damages resulting from any delay in the performance or progress of the Services caused solely by any act or neglect of the RIVER AUTHORITY, shall be borne entirely by the River Authority. If an excusable delay exceeds a total period of thirty (30) days, River Authority may terminate this Agreement.

ARTICLE 5 – TERMINATION/SUSPENSION OF AGREEMENT

5.1 After a reasonable opportunity to remedy or cure any failure or default, this Agreement may be terminated by either Party upon thirty (30) days' written notice should the other Party fail substantially to perform in accordance with its terms through no fault of the Party initiating the termination and may be terminated with or without cause upon sixty (60) days written notice.

5.2 Subject to the provisions of this Agreement, in the event of a termination for convenience, the Consultant shall be compensated for all Services performed by Consultant and accepted by River Authority up to the date of termination.

5.3 River Authority shall have the right to suspend Services upon written notice to Consultant. If the Project is suspended or abandoned in whole or in part for more than six (6) months, for reasons other than the fault of the Consultant, its subconsultants, subcontractors or anyone to whom Consultant is legally liable, the Consultant in accordance with this Agreement shall be compensated for all Services performed and accepted by the River Authority prior to receipt of written notice from the River Authority of such suspension or abandonment, together with authorized Reimbursable Expenses then due. The Consultant shall deliver to the River Authority all Documents pertaining to the Services performed under this Agreement to include but not limited to all receipts, papers, logs, registers, matrixes, presentations, GIS data, other data obtained or compiled as a result of Services, surveys, narratives, checklists, analysis, drafts, models, maps, photographs, videos, booklets, notes including field notes, memos, meeting minutes, correspondences, emails, calculations, reports, specifications, plans, drawings, other deliverables required herein, and other records, including payment records, regardless of format, completed and/or in progress up to the date of abandonment or suspension.

ARTICLE 6 - INDEMNIFICATION

Select one of the following Article 6.1 sections, depending on service, delete the other. REMEMBER to insert other indemnified parties based upon ILA or funding sources.

Select for licensed engineers, land surveyors, appraisers, and registered architects:

6.1 THE CONSULTANT AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD RIVER AUTHORITY, ITS ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS, VOLUNTEERS AND REPRESENTATIVES, INDIVIDUALLY AND COLLECTIVELY, HARMLESS FROM ANY LIABILITY FOR DAMAGE AND COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES IN PROPORTION TO THE CONSULTANT’S LIABILITY, TO THE EXTENT CAUSED BY CONSULTANT, ITS AGENTS, AND/OR ITS CONSULTANT’S NEGLIGENCE, INTENTIONAL TORTS, INTELLECTUAL PROPERTY INFRINGEMENT OR FAILURE TO PAY (1) A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE CONSULTANT OR THE CONSULTANT’S AGENT, (2) A CONSULTANT UNDER CONTRACT OR (3) ANOTHER PERSON OVER WHICH THE CONSULTANT EXERCISES CONTROL IN THE PERFORMANCE HEREUNDER. CONSULTANT SHALL ADVISE THE RIVER AUTHORITY IN WRITING WITHIN 24 HOURS OF ANY CLAIM OR DEMAND AGAINST THE RIVER AUTHORITY OR CONSULTANT KNOWN TO CONSULTANT RELATED TO OR ARISING OUT OF CONSULTANT’S ACTIVITIES UNDER THIS AGREEMENT. CONSULTANT'S DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT WILL NOT BE IN ANY WAY DIMINISHED BY REASON OF ANY APPROVAL BY RIVER AUTHORITY.

NOTWITHSTANDING CONSULTANT SHALL PROVIDE ANY DEFENSE TO RIVER AUTHORITY PURSUANT TO CONSULTANT’S GENERAL LIABILITY INSURANCE POLICY.

6.2 THE CONSULTANT IS NOT OBLIGATED TO INDEMNIFY THE RIVER AUTHORITY IN ANY MANNER WHATSOEVER FOR THE RIVER AUTHORITY’S OWN NEGLIGENCE.

Select for all others: Remember to include those RA has a contractual liability:

6.1 CONSULTANT COVENANTS AND AGREES TO FULLY INDEMNIFY, DEFEND AND HOLD HARMLESS, THE RIVER AUTHORITY AND ITS ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS, VOLUNTEERS AND REPRESENTATIVES, INDIVIDUALLY AND COLLECTIVELY, FROM AND AGAINST ANY AND ALL COSTS, CLAIMS, LIENS, DAMAGES, LOSSES, EXPENSES, FEES, FINES, PENALTIES, PROCEEDINGS, ACTIONS, DEMANDS, CAUSES OF ACTION, LIABILITY AND SUITS OF ANY KIND AND NATURE, INCLUDING BUT NOT LIMITED TO, PERSONAL OR BODILY INJURY, DEATH AND PROPERTY DAMAGE, WHETHER MADE DIRECTLY OR INDIRECTLY, ARISING OUT OF, RESULTING FROM OR RELATED TO CONSULTANT’S ACTIVITIES UNDER THIS AGREEMENT, INCLUDING ANY ACTS OR OMISSIONS OR NEGLIGENCE OF CONSULTANT, OR ITS AGENTS, OFFICERS, DIRECTORS, REPRESENTATIVES, EMPLOYEES, SUBCONSULTANTS OR SUBCONTRACTORS, AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS AND REPRESENTATIVES. HOWEVER, RIVER AUTHORITY DOES NOT WAIVE ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE RIVER AUTHORITY UNDER TEXAS LAW NOR ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. CONSULTANT SHALL ADVISE THE RIVER AUTHORITY IN WRITING WITHIN 24 HOURS OF ANY CLAIM OR DEMAND KNOWN TO CONSULTANT RELATED TO OR ARISING OUT OF CONSULTANT’S ACTIVITIES UNDER THIS AGREEMENT AND SHALL SEE TO THE INVESTIGATION AND DEFENSE OF SUCH CLAIM OR DEMAND AT CONSULTANT COST. THE RIVER AUTHORITY SHALL HAVE THE RIGHT, AT ITS OPTION AND AT ITS OWN EXPENSE, TO PARTICIPATE IN SUCH DEFENSE WITHOUT RELIEVING CONSULTANT OF ANY OF ITS OBLIGATIONS UNDER THIS PARAGRAPH. CONSULTANT FURTHER AGREES TO DEFEND, AT ITS OWN EXPENSE AND ON BEHALF OF AND IN THE NAME OF THE RIVER AUTHORITY, ANY CLAIM OR LITIGATION BROUGHT AGAINST THE RIVER AUTHORITY AND ITS ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS, VOLUNTEERS AND/OR REPRESENTATIVES, IN CONNECTION WITH ANY SUCH INJURY, DEATH OR DAMAGE FOR WHICH THIS INDEMNITY SHALL APPLY, AS SET FORTH ABOVE. CONSULTANT'S DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT WILL NOT BE IN ANY WAY DIMINISHED BY REASON OF ANY APPROVAL BY RIVER AUTHORITY.

6.2 THE CONSULTANT IS NOT OBLIGATED TO INDEMNIFY THE RIVER AUTHORITY IN ANY MANNER WHATSOEVER FOR THE RIVER AUTHORITY’S OWN NEGLIGENCE.

6.3 The indemnities will apply whether Consultant’s liability arises under breach of contract or warranty; tort, including negligence; strict liability; statutory liability; or any other cause of action resulting from Consultant’s Services under this Agreement or from its breach thereof, and shall apply to Consultant’s officers, affiliated corporations, employees, subcontractor and subconsultants.

ARTICLE 7 - INSURANCE REQUIREMENTS

Insert any entity to which River Authority has a contractual responsibility to maintain insurance.

7.1 Consultant’s financial integrity is of interest to the River Authority, and, therefore, subject to Consultant’s right to maintain reasonable deductibles in such amounts as are approved by the River Authority, Consultant, at its sole expense, shall obtain and maintain in full force and effect, for the duration of the Agreement, and any Extension or Renewal Term thereof, the insurance coverage, endorsements and limits required herein or otherwise acceptable to the River Authority. Consultant shall require each of its subcontractors or subconsultants to maintain, during the performance of their Services under this Agreement (including all warranty periods or as otherwise specified herein) the insurance coverages and endorsements specified herein with limits of liability deemed reasonable by the Consultant for the risk associated with the scope of Services performed herein. It is the specific intent of the Parties to the Agreement that all insurance required herein shall be primary to and shall seek no contribution from any insurance (primary, umbrella, contingent or excess) maintained by River Authority, and/or its elected officials, employees, officers, directors, volunteers and representatives with the insurance maintained by the River Authority and/or its officials, agents, elected representatives, employees and volunteers’ being excess, secondary and noncontributing. The limits of liability required herein may be provided by a single policy of insurance or by a combination of primary, excess or umbrella policies; but, in no event shall the total limits of liability available for any one occurrence or accident be less than the amounts required.

7.2 Prior to the commencement of any Services under this Agreement, the Consultant and its subcontractors and subconsultants shall furnish to River Authority an original completed certificate(s) of insurance which shall be clearly labeled Enter Type of Service Enter contract number in the Description of Operations block of the certificate of insurance. The original certificate(s) of insurance shall be completed by an agent authorized to bind the named underwriter(s) and its company to the coverage, limits and termination provisions shown thereon, containing all required information referenced or indicated thereon. The original certificate(s) of insurance or form must have the agent’s original signature, including the signer’s company affiliation, title, and phone number. The River Authority shall have no duty to pay or perform under this Agreement until such certificate(s) of insurance with copies of all endorsement shall have been delivered to River Authority.

7.3 Consultant and its subconsultants and subcontractors shall maintain, at all times during performance of Services under the Agreement, the insurance coverage detailed below:

Amend as necessary for scope:

1. Premises/Operations

2. Independent Contractors

3. Products/Completed Operations

4. Personal Injury

5. Contractual Liability

6. Explosion/Collapse/Underground Property Damage (where applicable)

7. Pollution Liability (where applicable)

8. Endorsement for Unmanned Aircraft (Drones) (where applicable to Services)

9. Endorsement for watercraft (where applicable to Services)

$2,000,000 General Aggregate $2,000,000 Products/Completed Operations Aggregate $1,000,000 Personal Injury per occurrence $1,000,000 Each Occurrence

Include if appropriate for Services: General Liability requires a per project aggregate limit or aggregate limits by Location endorsement.

$500,000 each accident, $500,000 policy limit for Disease $500,000 each employee for Disease

$1,000,000 Combined Single Limit Non-owned vehicles include the use of an employee’s personal vehicle in the Contractor’s business.

$1,000,000 Per Claim $2,000,000 Annual Aggregate

a) Coverage shall be continuous (by renewal or extended reporting period) for no less than 60 months following completion of the Agreement and acceptance of the work by River Authority.

b) Coverage, including renewals, shall have the same retroactive date as the original policy applicable to this Agreement.

$2,000,000 per claim $4,000,000 Aggregate

Including the following Insuring Agreements: 1) Privacy Liability; 2) Network Security Liability; 3) Internet Media Liability; and 4) Network Extortion. Data Breach Fund & Regulatory Proceeding coverage is required and can be provided with a Sub-Limit of Liability with limits no less than $100,000 and $500,000, respectively.

a) Coverage shall be continuous (by renewal or extended reporting period) for no less than 60 months following completion of the Agreement and acceptance of the Services by River Authority.

b) Coverage, including renewals, shall have the same retroactive date as the original policy applicable to this Agreement.

7.4 The Commercial General Liability, Drone Liability and Watercraft Liability shall be endorsed to name San Antonio River Authority and its elected officials, employees, officers, directors, volunteers, and representatives as additional insureds for liability arising out of Consultant’s ongoing operations as well as completed operations in performance of this Agreement. Commercial General Liability shall be primary and non-contributing with any other valid and collectible insurance available to the River Authority and/or its elected officials, employees, officers, directors, representatives, and volunteers.

7.5 Consultant agrees to waive its rights of claim or recovery from River Authority, its elected officials, employees, officers, directors, volunteers and representatives for all claims (i) that are covered by any insurance maintained by Consultant, (ii) would have been covered by any insurance required to be maintained by Consultant under this Agreement, or (iii) that constitute any retained, self-insured, or uninsured risk of Consultant. Commercial General Liability, Umbrella/Excess, Drone Liability, Watercraft Liability, Commercial Automobile Liability, Worker’s Compensation and Employer’s Liability shall include a waiver of subrogation and any other rights of recovery by the insurer in favor of River Authority and its elected officials, employees, officers, directors, representatives and volunteers. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.

7.6 Commercial Auto Liability shall be provided to cover damages because of bodily injury or property damage caused by an accident or resulting from the ownership, maintenance or use of (1) any auto, including owned, leased, hired and non-owned autos, and (2) any mobile equipment subject to compulsory insurance or financial responsibility laws or other motor vehicle insurance laws. Additional insured status shall be provided in favor of River Authority and its elected officials, employees, officers, directors, volunteers and representatives and Consultant’s Commercial Auto Liability shall be primary to and shall seek no contribution from any other insurance maintained by additional insureds, with additional insureds insurance being excess, secondary, and noncontributing.

7.7 Umbrella/Excess insurance shall follow form of, be excess over and be no less broad than all required general liability, auto liability, and employer’s liability coverages including but not limited to the required additional insured status, primary and noncontributory status, and waiver of subrogation.

7.8 All insurance policies require a thirty (30) day’s advance written notice of cancellation, material change or nonrenewal if insurance is cancelled, materially changed, or not renewed for any reason. Regardless of notice by insurance carrier, Consultant shall provide such notice to the River Authority.

7.9 All insurance policies required herein shall be carried with financially responsible insurance companies, licensed in the State of Texas, with an A.M. Best Rating of A (-) VI or greater.

7.10 If the Consultant, any its subcontractors or anyone for whose acts the Consultant may be liable fail to maintain the aforementioned insurance, or fail to secure and maintain the aforementioned endorsements, the River Authority may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; however, procuring of said insurance by the River Authority is an alternative to other remedies the River Authority may have and is not the exclusive remedy for failure of Consultant to maintain said insurance or secure such endorsement. In addition to any other remedies the River Authority may have upon Consultant’s, its subcontractor’s, or anyone else for whose acts the Consultant may be liable, failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the River Authority shall have the right to order Consultant to stop Services under the Agreement and/or withhold any payment(s) which become due to Consultant thereunder until Consultant demonstrates compliance with the requirements hereof.

7.11 The River Authority reserves the right to review these insurance requirements during the effective period of the Agreement and any extension or renewal thereof and to modify insurance coverage and their limits when deemed necessary and prudent by the River Authority, based upon changes in Laws, court decisions or circumstances surrounding the Agreement, but in no instance will the River Authority allow modification whereupon the River Authority may incur increased risk.

7.12 The River Authority shall be entitled, upon request and without expense, to receive copies of the policies and all endorsements thereto as they apply to the limits and coverages required by the River Authority, and may require the deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, except where policy provisions are established by Laws or regulation binding upon either of the Parties hereto or the underwriter of any such policies.

7.13 Consultant agrees to require, by written contract, that all subcontractors and/or subconsultants providing goods, equipment, or Services hereunder, purchase and maintain, during the term of the Agreement, the same minimum levels of applicable insurance coverages and with the same terms as required of Consultant that are necessary and appropriate for the Services performed. Prior to the commencement of any Services by any subcontractor and/or subconsultant, Consultant shall provide to River Authority certificates of insurance with copies of endorsements from its subcontractor(s) and subconsultants.

7.14 All insurance notices shall be given to the River Authority at the following address:

San Antonio River Authority Attn: Contracting Department Enter contract number 100 E. Guenther Street San Antonio, TX 78204 Contracts@sariverauthority.org

7.15 Regardless of insurance coverage, Consultant is liable for all damages that River Authority may incur to the extent arising out of or resulting from the negligent acts or omissions of Consultant and/or anyone for whose acts the Consultant may be liable, including but not limited to its agents, officers, directors, representatives, employees, contractors, subconsultants or subcontractors. Acceptance of Services by the River Authority shall not constitute a release of the responsibility, obligations, or liability of the Consultant for any defect in the design, drawings, specifications, plans, construction documents or other Services performed by the Consultant.

7.16 Consultant and anyone for whose acts the Consultant is liable including but not limited to its subcontractors and subconsultants of any tier shall be responsible for all damage, regardless of the cause, to its or their own, borrowed, rented, or leased equipment and/or property. Any required rework of Services due to the failure of Consultant’s, its subcontractor’s or subconsultant’s equipment for any reason shall be the sole responsibility and at the sole cost of Consultant.

ARTICLE 8 - CONSULTANT ACCOUNTING RECORDS

8.1 Records of expenses pertaining to all Services that are authorized by the RIVER AUTHORITY shall be kept on the basis of generally accepted accounting principles and shall be available to the RIVER AUTHORITY at mutually convenient times.

8.2 Consultant, shall properly, accurately and completely maintain all documents, regardless of format, relating to the Services provided hereunder, (hereafter referred to as “Documents”), including but not limited to records, GIS data, receipts, papers, logs, registers, matrixes, presentations, narratives, checklists, analysis, specifications, drawings, surveys, appraisals, plans, drafts, models, maps, photographs, videos, booklets, notes including but not limited to field notes, memos, meeting minutes, correspondences, emails, calculations, reports, deliverables required herein, and other evidence pertaining to the Services rendered hereunder, and shall make such Documents available for audit, inspection, examination, and making excerpts or copies of same by the River Authority and any of its authorized representatives at no cost to the River Authority, at all reasonable times and as often as may deem necessary during the Agreement, including any Extensions or Renewal Term.

8.3 Unless such longer period of time is required by law, Consultant shall retain any and all Documents produced as a result of Services provided hereunder for a period of four (4) years (“Retention Period”) from the date of expiration or termination of the Agreement whichever occurs first. If, at the end of the Retention Period, there is litigation, disputes or other questions arising from, involving, or concerning the Documents or the Services provided, Consultant shall retain the records until the resolution of such litigation, dispute, or other such concerns. Consultant acknowledges and agrees that the River Authority shall have access to any and all such Documents at any and all times, as deemed necessary by the River Authority, during said Retention Period. The River Authority may, at its election, require Consultant to return said Documents to the River Authority prior to or at the conclusion of said Retention Period. Notwithstanding the above, Consultant shall be entitled to retain one copy of said Documents in accordance with general systems archiving or backup policies or required for preservation by law, regulation, audit, data retention or corporate archival purposes or per regulatory, judicial, or governmental order.

ARTICLE 9 - BASIS OF COMPENSATION

9.1 The River Authority shall compensate the Consultant for Services performed and accepted by the River Authority in accordance with the Agreement. Consultant shall submit all statements, invoices and supporting Documents electronically to accountspayable@sariverauthority.org.

If firm-fixed lump sum without milestones (one payment)

9.2 River Authority shall make full payment to Consultant in the firm-fixed all-inclusive lump sum of Enter Agreement Price US Dollars ($XXXXXX.XX), (“Agreement Price”) for all Services performed and accepted by the River Authority within thirty (30) calendar days of River Authority’s receipt of a properly submitted invoice from Consultant. The Additional Services (insert additional services identified in proposal) are excluded from the Agreement Price and if requested by River Authority, will be authorized by an amendment signed by both Parties.

If firm-fixed lump sum with milestones:

9.2 For completed Services that are accepted by the River Authority, Consultant shall be paid a firm-fixed all-inclusive lump sum of (Insert Agreement Price) US Dollars ($XXXXXX.XX) (“Agreement Price”) in accordance with the Agreement. The Agreement Price includes all costs and expenses including but not limited to direct costs, indirect costs, and expenses to perform the Services in accordance with the Agreement and applicable laws. The Additional Services (insert additional services identified in proposal) are excluded from the Agreement Price and if requested by River Authority, will be authorized by an amendment signed by both Parties to the Agreement. River Authority shall make payment for Services rendered and accepted by the River Authority within thirty (30) calendar days of River Authority’s receipt of a properly submitted invoice from Consultant and the achievement of the following milestones:

Modify these milestones

9.2.1 Milestone 1 in the amount of $XXXX.XX: River Authority’s receipt and acceptance of Consultant’s construction documents which have progressed to 50% of completion and shall at a minimum include the following items: plans and specifications for structural and mechanical repairs for the Project;

9.2.2 Milestone 2 in the amount of $XXXX.XX: River Authority’s receipt and acceptance of Consultant’s final construction documents which shall at a minimum include the following items: final plans and specifications for structural and mechanical repairs for the Project which may be used to bid the work on the Project;

9.2.3 Milestone 3 in the amount of $XXXX.XX: completion of the bid phase and River Authority’s award of the construction Project, and

9.2.4 Milestone 4 in the amount of $XXXX.XX: River Authority’s receipt and acceptance of the as-built construction documents for the Project from Consultant.

If all-inclusive monthly fee:

9.2 The River Authority shall pay to Consultant a firm-fixed all-inclusive monthly fee of $XXXXX.XX US Dollars, (“Monthly Fee”), up to the sum of $XXXXXXX.XXX, (“Agreement Price”) as set forth herein for Services performed by Consultant and accepted by River Authority. CONSULTANT shall notify River Authority in writing when actual invoices for completed and accepted Services total 80% of the Agreement Price and shall advise its projected total billings to complete the Services.

If compensation based upon time/material rates:

9.2 The RIVER AUTHORITY shall pay to Consultant for completed and accepted Services a sum of money computed at the rates set forth herein up to the not-to-exceed amount of XXXXX.XX US Dollars ($XXXX.XX), (“Agreement Price”). Consultant shall notify River Authority in writing when actual invoices for completed and accepted Services total 80% of the Agreement Price and shall advise its projected total billings to complete the Services.

9.3 The Consultant shall provide monthly status reports as required by the River Authority to inform the River Authority of the status of the Project and submit monthly invoices to the River Authority for Services performed during the preceding month by Consultant and accepted by the River Authority.

If lump sum fee, add, when authorized by written amendment to the Agreement,

9.4 Reimbursable Expenses when authorized by written amendment to this Agreement, signed both Parties, shall mean the actual expenses incurred directly in connection with the Project for transportation and subsistence incidental thereto, telephone expenses, reproduction of reports, drawings, specifications, and similar Project-related items. Reimbursable expenses if authorized shall be considered at cost. All Travel requests shall be pre-approved by the River Authority. Travel Expenses shall be reimbursed per the U.S. General Services Administration (GSA) published per diem rates in San Antonio for hotel, meal, incidentals, and mileage. Maps must be submitted with all requests for mileage reimbursement. Notwithstanding anything to the contrary in this Agreement, Consultant shall not be reimbursed for mileage to and from the field or meetings. The River Authority strictly prohibits expenses for entertainment or alcohol.

9.5 The River Authority will not pay any indirect charges over the subconsultant’s or subcontractor’s bill. A copy of all subcontractor and subconsultant invoices, marked “Paid”, must be included with request for reimbursement.

ARTICLE 10 - PAYMENTS TO THE CONSULTANT

If compensation based upon time and material basis:

10.1 All statements submitted to the River Authority shall be itemized to include the hours worked per personnel classification, fully burdened hourly rate in accordance with Agreement, total cost of such Services for the period, a summary of Services performed, and such other information as the River Authority may require to substantiate invoiced amounts including but not limited to paid invoices from others and maps. Consultant shall complete and submit the attached invoice template with all statements for payment.

If compensation is based upon firm-fixed lump sum fee and identified tasks:

10.1 All statements for Services authorized on a firm-fixed lump sum basis submitted to the River Authority shall be itemized to include a summary of Services performed under each of the Tasks identified in Exhibit X of this Agreement for which payment is requested along with a percentage complete for each Task, and such other information as the River Authority may require to substantiate invoiced amounts. If Services are authorized on a time and material basis by amendment, statements for Services shall also include hours worked per personnel classification, fully burdened hourly rate in accordance with Agreement, total cost of such Services for the period, a summary of Services performed, and such other information as the River Authority may require to substantiate invoiced amounts.

If lump sum and progress payments:

10.1 Upon Consultant’s submittal of an approved invoice detailing the Services performed for the current billing period, number of hours billed per personnel classification, applicable hourly labor rates and such other supporting documentation to substantiate the invoiced amounts, River Authority shall make progress payments monthly based upon the Consultant’s progress towards completion of the Services as solely determined by the River Authority up to the Agreement Price.

If all-inclusive monthly fee:

10.1 Upon Consultant’s submittal of an approved invoice detailing the Services performed for the prior month and River Authority’s acceptance of such Services, River Authority shall pay the Monthly Fee in accordance with the Agreement.

10.2 River Authority shall make payment for authorized Reimbursable Expenses, at cost, and Services performed by Consultant and accepted by River Authority within thirty (30) calendar days after presentation of the Consultant’s statement of Services rendered in an acceptable form to the River Authority. The billing period for Services will be calendar months. All supporting documentation including but not limited to receipts, statements, etc. to substantiate the cost or expense must be included in monthly billings.

10.3 Payment for Services which exceed the Agreement Price, Monthly Fee or hourly rates cannot be made without a request to change the Agreement Price and/or hourly rates submitted in writing to the River Authority and an amendment is signed by both Parties. Advance notice and authorization for Services beyond the Agreement Price is required to ensure prompt processing of invoices/statements. Failure to comply with this section can be justification for River Authority’s rejection of invoiced amounts.

10.4 PAYMENTS WITHHELD:

10.4.1 No deductions shall be made from the Consultant’s compensation on account of penalty or liquidated damages, unless the River Authority believes in good faith that the Consultant is legally liable or such charges are not authorized by the Agreement.

10.4.2 If the River Authority objects to any statement submitted by the Consultant, the River Authority shall so advise the Consultant verbally or in writing, giving reasons within twenty-one (21) days of receipt of such statement. No interest accrual shall be permitted on any invoice under dispute.

10.4.3 If Consultant fails to deliver the required Documents to the River Authority within fifteen (15) calendar days of any suspension or termination of this Agreement.

10.5 Invoices and/or statements of Services received by River Authority from Consultant more than ninety (90) calendar days after the completion of the Services or goods delivered will be delinquent. The River Authority will have no obligation to pay such delinquent invoices and Consultant shall be deemed to have waived its right to payment for the respective Services performed or goods received.

ARTICLE 11 - SEVERABILITY

Should any term or provision of this Agreement be held invalid or unenforceable in any respect, the remaining terms and provisions shall not be affected, and this Agreement shall be construed as if the invalid or unenforceable term or provision had never been included and the remaining portion of this Agreement shall remain in full force and effect.

ARTICLE 12 - OWNERSHIP AND USE OF DOCUMENTS

(Use this language if Consultant’s Scope is only design or developing specifications and plans) Remember to include others to which RA is contractually liable.

12.1 All Documents prepared by the Consultant or its subconsultants on the Project are instruments of Service and shall remain the property of the Consultant. River Authority shall be permitted to retain copies, including reproducible copies, of all Documents prepared by the Consultant for information and reference in connection with the River Authority’s use and occupancy of the Project. River Authority shall have an irrevocable, assignable, fully paid-up, sublicensable, royalty-free, world-wide, perpetual license and right, which shall survive the termination of this Agreement, to use the Documents, including the originals thereof, and the ideas and designs contained therein, for any purpose, regardless of the Consultant’s involvement. The Consultant and its subconsultants shall not be liable for any re-use of, or changes made by the River Authority to the Documents (including drawings or specifications provided in CADD or other electronic format) or for claims or actions arising from any such re-use or changes on projects in which the Consultant is not involved. Consultant shall also obtain nonexclusive, fully paid-up perpetual licenses for the River Authority from all of its subconsultants consistent with this Agreement.

12.2 Submission of the Documents and reports to meet official regulatory requirements or for other purposes in connection with the Services provided pursuant to this Agreement shall not be construed as publication in derogation of the Consultant’s rights.

Otherwise use this language: Remember to include others to whom River Authority has contractual obligations

12.1 The River Authority shall own the Consultant’s draft and final Documents arising out of or resulting from the Services performed pursuant to this Agreement. Submission of the Documents and reports to meet official regulatory requirements or for other purposes in connection with the Services provided pursuant to this Agreement shall not be construed as publication in derogation of the River Authority’s rights.

12.2 Documents provided in electronic media form shall not have inaccuracies and anomalies including errors due to electronic translation, formatting, or interpretation. In the event of any inconsistency between the electronic media and hard copies provided by the Consultant, the hard copy shall govern. The Consultant is responsible for errors and omissions because of these conditions and not for those resulting from conversion, modification, misinterpretation, misuse, or reuse by others after electronic media is released by Consultant.

12.3 All title and interest in all work…