HomeMy WebLinkAbout09551RESOLUTION NO. 9551
A RESOLUTION APPROVING ADDENDUM NO. 3 TO THE
INTERGOVERNMENTAL AGREEMENT CREATING THE
HISTORIC ARKANSAS RIVERWALK OF PUEBLO
AUTHORITY, AUTHORIZING THE PRESIDENT OF THE CITY
COUNCIL TO EXECUTE SAME, AND CONSENTING TO THE
ASSIGNMENT TO AND THE CONSTRUCTION BY THE HARP
AUTHORITY OF THE CONFLUENCE FOUNTAIN PROJECT
AND DESIGN -BUILD CONSTRUCTION AGREEMENTS
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
Addendum No. 3 to the Intergovernmental Agreement Creating The Historic Arkansas
Riverwalk of Pueblo (HARP) Authority, a copy of which is attached, having been approved as to
form by the City Attorney, is hereby approved. The President of the City Council is authorized to
execute and deliver Addendum No. 3 in the name of the City.
SECTION 2.
The HARP Foundation, Inc., has transferred to the HARP Authority, Inc., the responsibility
for the construction project known as "The Water Feature Confluence Fountain" that is within the
boundaries of the HARP (Project). The Project presents the singularly unique design and
copyrighted installation requirements and conditions that involve the designer Wet Enterprises, Inc.
Because of the unique and singular nature of this Project and the speciality work involved, the
Project and the assignment of such professional services agreement with Wet Enterprises, Inc., from
the HARP Foundation to the HARP Authority, is hereby consented to.
SECTION 3.
Since the Project does not lend itself to competitive sealed bidding, and because of the
donor's restrictions concerning the funding of the Project, a design -build construction agreement
between the HARP Authority and Houston Construction Company for the Project is hereby
consented to. This consent is conditioned upon the City ofPueblo Public Works Department having
the right but not the obligation to inspect the construction of the Project for the HARP Authority and
to assure that the City's applicable construction specifications are followed.
INTRODUCED: March 25 , 2002
BY: Patrick Avalos
COUNCILPERSON
APPROVED:
PRESIDENT OF CITY COUNCIL
ATTESTED BY:�
CIT CLERK
ID
�fr
ED
Background Paper for Proposed
RESOLUTION
AGENDA ITEM # I
DATE: MARCH 25, 2002
DEPARTMENT: HARP AUTHORITY
TITLE
A RESOLUTION APPROVING ADDENDUM NO. 3 TO THE
INTERGOVERNMENTAL AGREEMENT CREATING THE HISTORIC
ARKANSAS RIVERWALK OF PUEBLO AUTHORITY, AUTHORIZING THE
PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME, AND
CONSENTING TO THE ASSIGNMENT TO AND THE CONSTRUCTION BY
THE HARP AUTHORITY OF THE CONFLUENCE FOUNTAIN PROJECT AND
DESIGN -BUILD CONSTRUCTION AGREEMENTS
ISSUE
Amend Intergovernmental Agreement which created HARP
RECOMMENDATION
Approval
BACKGROUND
The HARP Authority wishes to proceed with the construction of a new fountain
feature located on the confluence of the Riverwalk known as "The Water Feature
Confluence Fountain." This project is one of the program elements identified
within the natural area for HARP Phase IIC, Element No. 4, Major Art Node
Water Feature.
This Fountain is privately funded. It is particularly special, not only in its design
qualities and what it will do to enhance the river channel, but also in terms of its
unique construction requirements.
As indicated in the enclosed Resolution, this project is unique and singular in
nature. The copyrighted installation requirements and conditions that involve the
designer, Wet Enterprises, Inc., will require specialty work that does not lend
itself to competitive sealed bidding. Consequently, it is requested that
Addendum No. 3 to the Intergovernmental Agreement, allowing for the HARP
Authority to implement and maintain design -build capabilities be approved.
FINANCIAL IMPACT
None
ADDENDUM NO.3 TO
THE INTERGOVERNMENTAL AGREEMENT
CREATING THE HISTORIC ARKANSAS RIVERWALK
OF PUEBLO AUTHORITY
This Addendum No. 3 is between Pueblo, a Municipal Corporation (the "City "), Pueblo
County, Colorado (the "County ") and Pueblo Conservancy District (the "District "), the Board of
Water Works of Pueblo, Colorado (the "Board "):
RECITALS
A. The City, County, District and Board by Intergovernmental Agreement dated
December 1, 1997 (Intergovernmental Agreement) established and created a separate legal entity
known as the Historic Arkansas Riverwalk of Pueblo Authority (Authority) to promote, manage,
supervise, operate, develop and maintain the public project known as the Historic Arkansas
Riverwalk of Pueblo (HARP).
B. The Intergovernmental Agreement sets forth the powers and duties of the Authority
which in part need to be clarified and amended. All parties are willing to amend the
Intergovernmental Agreement provided below.
AGREEMENT
In consideration of the above Recitals and following mutual covenants, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City, County,
District and Board agree as follows: (underscoring indicates matter added)
1. Article III - Powers of the Authority, of the agreement is hereby amended by
changing Article 3.1(a) to read as follows:
3.1 The Authority may exercise any and all powers in furtherance of its function,
purpose, and obligation which power shall include, but not be limited to the
following powers
(a) To make and enter into contracts that are in furtherance of the
function, purpose and obligation of the Authority with the parties to
this Agreement (either jointly or separately), the State of Colorado,
the Federal government, any other governmental body or unit, or any
private person, partnership or corporation or other private entity;
provided, however, that (i) before the purchase of supplies, materials,
services or equipment ample opportunity be given for competitive
bidding; and (ii) contracts for improvements be awarded to the lowest
and best bidder by competitive sealed bidding after ample advertising.
The Authority, however may use design -build arrangements and
contracts with contractors and material suppliers when a donor's
restrictions so limit the nature or scope of a construction project or
the installation of a public improvement is so singularly unique that
it does not lend itself to competitive sealed bidding procedures and
requirements. The Authority shall, however, use its best efforts to
solicit proposals from companies and contractors who build or supply
materials for such unique projects before selecting any contractor or
construction supplier for a design build project or purchase
2, The Intergovernmental Agreement as amended by paragraph 1 above shall remain in
effect, binding upon and inuring to the benefit of the parties hereto, the Authority and
the HARP Council.
3. This Addendum No. 3 may be executed in any number of counterparts, each of
which, when so executed and delivered, shall be an original, but such counterparts
shall together constitute but one and the same agreement.
This Addendum is executed in Pueblo, Colorado and shall be effective on
/jj g�'rff aY , 2002.
BOARD OF COUNTY COMMISSIONERS
OF PUEBLO COUNTY, COLORADO
By: �.
ACKaGna of the Board
Attest:
County Clerk
PUEBLO, A MUNICIPAL CORPORATION
Y
President of the City Council
+
Attest: �, ^ --
City k
Approved as to forni:
City Attorney
PUEBLO CONSERVANCY DISTRICT
By:
Title:
Attest:
Title:
BOARD OF WATER WORK OF PUEBLO,
COLORADO
By:
Title: President
Attest: Q CAC8.S— (—'.
Title: Executive Director
ASSIGNMENT OF PROFESSIONAL SERVICES AGREEMENT,
CONCEPT DESIGN PROPOSAL AND WATER FEATURE PROPOSAL
AND CONSENT
This Assignment and Consent (Agreement) is made effective as of AWX&r 02, 2002
(Effective Date), between the HARP Foundation, Inc., of Pueblo, Colorado (Assignor or
Foundation), the Historic Arkansas Riverwalk of Pueblo (HARP or Assignee), and Wet Enterprises,
Inc. (Contractor).
RECITALS
The purpose of this Assignment is to set forth the terms and conditions of the Assignment.
HARP has agreed to accept the duties and responsibilities described in a Concept Design Proposal
including Exhibit A -Water Feature Proposal dated November 30, 2000, and a Professional Services
Agreement dated November 30, 2000 and change order #1 dated May 8, 2001, between the
Foundation and the Contractor. The Foundation has agreed to assign to HARP all of the
Foundation's right, title and interest in and under the three documents, copies of which are attached
as Exhibits A -1, A -2 and A -3. All such documents shall be referred to as "Contract Documents" or
"Contract." The Contractor consents and agrees to the transfer of rights and duties as provided in
this Assignment.
Incorporating the above recitals and for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
ASSIGNMENT
The Foundation hereby transfers, conveys and assigns to HARP all rights, interest
and claims the Foundation has in the Contract Documents.
2. The Foundation represents and warrants to HARP that the attached are a true and
complete copy of the Contract Documents, that there is no outstanding default under
the Contract Documents and that the Foundation's interest under the Contract
Documents is not subject to any claim, set off, lien or encumbrance of any nature.
3. The Foundation covenants and agrees to continue to perform fully its obligations
under the Contract Documents before the Effective Date, after which the Foundation
shall have no further rights under the Contract Documents.
4. The Foundation authorizes the Contractor to proceed with performing all of
Contractor's obligations under the Contract for the benefit of HARP upon
Contractor's receipt of a written notice from HARP. Contractor shall be entitled to
rely on such written notice from HARP as conclusive proof of HARP's right to take
such action.
Page 1 of 5
JOINDER, CONSENT AND COVENANTS OF CONTRACTOR
5. Assignment. The Contractor hereby recognizes and consents to this assignment of
the Contract from the Foundation to HARP. Contractor hereby agrees to recognize
HARP's rights under the Contract.
6. Covenants of Contractor. The Contractor hereby represents and warrants to HARP
that:
a. Attached Exhibits A -1, A -2, and A -3 are true, correct and complete copies of
the Contract Documents, that there is no outstanding default under the
Contract, and that Contractor's interest under the Contract Documents is not
subject to any claim, setoff, lien or encumbrance of any nature.
b. To the best of the knowledge of the Contractor, the project identified in the
Contract (the Project) when completed in accordance with the plans and
specifications referred to in the Contract (the Plans and Specifications), and
any amendments made with the approval of the Contractor and HARP will
entitle HARP to (i) full use and occupancy of the Project for the purpose of
which it is intended, and (ii) the issuance of such permits authorizing use and
occupancy of the Project.
7. Inspection of Records. The Contractor agrees to make available for inspection and/or
copying by HARP or their duly authorized agents, during reasonable business hours,
all Plans and Specifications, as well as all related documents concerning the
construction of the Project, as are or may be in the possession of the Contractor from
time to time.
City Not Liable to Contractor. The Contractor acknowledges that the City of Pueblo
shall not have any liability with respect to the performance of any obligations under
the Contract on the part of Foundation or HARP to be performed, including, but not
limited to, the payment of any amounts due or owing to the Contractor.
9. No Alterations to Plans and Specifications. Unless the prior written consent of
HARP is first obtained, the Contractor (i) will not permit any changes or alterations
in the Plans and Specifications and (ii) will not enter into, or permit to become
effective, any change order which may increase the amount of the contract price or
extend the time for completion under the Contract.
10. Notice and Opportunity to Cure. If HARP defaults under the Contract Documents,
before exercising any remedy, the Contractor shall give written notice of such default
to HARP and the City of Pueblo specifying the steps necessary to cure such default.
For a period of thirty (30) days after such notice, the City of Pueblo shall also have
the right, but not the duty, to cure the default of HARP.
Page 2 of 5
MISCELLANEOUS
11. Waiver. No term or provision hereof shall be deemed waived unless the waiver shall
be in writing and signed by HARP.
12. Headings. All Article and Section headings are for convenience only and shall not
be interpreted to enlarge or restrict the provisions of this Agreement.
13. Notices. All notices shall be in writing and shall be sent to the respective addresses
of the parties as follows:
Foundation: Dan DeRose
415 Grand Avenue
Pueblo, CO 81003
HARP:
';to by f s " 34- 4 W 3 o 3
Contractor:
City: Director of Public Works
Attention: Tom Cvar
211 E. "D" Street
Pueblo, Colorado 81003
A notice may be hand delivered or mailed, postage prepaid, first class, registered or
certified mail, return receipt requested. Any notice sent by mail shall be deemed to
have been received on the second business day following the date of mailing.
14. Binding Effect. This Agreement shall bind the parties hereto and their respective
personal representatives, heirs, successors and permitted assigns.
15. Amendment. This Agreement may be modified and amended only in writing signed
by the parties hereto.
16. Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable in any legal action by any court or other governmental authority of
competent jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
Page 3 of 5
17. Applicable Law. This Agreement shall be governed by the laws of the State of
Colorado, without regard to principals of conflicts of laws. Venue for any action
under this Agreement shall be Pueblo County, Colorado.
18. Word Forms. The use of any gender, tense or conjugation herein shall be applicable
to all genders, tenses and conjugations. The use of the singular shall include the
plural and the plural shall include the singular.
The parties have signed this Agreement as of the Effective Date.
FOUNDATION:
a
By:
STATE OF COLORADO)
) SS.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me on AOKI ( L- , 2002,
by M ar k. 4 55
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My Commission Expires 0812112003
By: �.
STATE OF COLORADO)
) SS.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me on April 4 2002,
by Dan DeRose
Witness my official hand and seal.
A Al / ^^1
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Page 4 of 5
My Commission Expires 0812112003
CONTRACTOR:
STATE OF COLORADO)
) SS.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me on 2 2002,
by
Witness my official hand and seal.
My Commission Expires:
Notary Public
Page 5 of 5
HISTORIC ARKANSAS RIVERWALK OF PUEBLO
EXHIBIT A -WATER FEATURE PROPOSAL
HARP FOUNDATION
PUEBLO, COLORADO
WET ENTERPRISES, INC.®
90 UNIVERSAL CITY PLAZA UNIVERSAL CITY, CALIFORNIA 91608
NOVEMBER 30, 2000
EXHIBIT A -1 /�
EXHIBIT A —HARP WATER FEATURE PROPOSAL NOVEMBER 30, 2000 PAGE A
s
TABLE OF CONTENTS
PROJECT DESCRIPTION 1
SCHEMATIC DESIGN PHASE 1
DESIGN DEVELOPMENT PHASE 1
ENGINEERING AND CONSTRUCTION DOCUMENT PHASE 2
WET- FURNISHED EQUIPMENT PHASE 3
CONSTRUCTION AND INSTALLATION PHASE 4
FIELD COMMISSIONING AND PROGRAMMING PHASE 5
SCHEDULE 6
PRICE AND PAYMENT TERMS 7
PROVIDED BY OTHERS 7
ADDITIONAL WORK AND BILLING RATES
TERMS OF AGREEMENT 1 . 9
8
WET D ESIGNS 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) WWW.WETDE�GN /COM
EXHIBIT A -HARP WATER FEATURE PROPOSAL NOVEMBER 30, 2000 PAGE 1
All references in this Agreement to "you" refer to HARP Foundation, and all references to "we" or
"us" refer to WET Enterprises, Inc.®, or our subsidiary WET Design®, WET Labs Inc.® or WET Care.®
PROJECT DESCRIPTION
The water feature for this Project is associated with the Historic Arkansas Riverwalk of Pueblo,
located in Pueblo, Colorado. The feature consists twenty -four (24) MicroShooter® assemblies
and twenty -seven (27) white PicoLightsTM, surrounding the confluence area of the Riverwalk.
Engineering services for this Project will include future scope of work to include giant Laminar /
LeapFrog assemblies within the Riverwalk basin.
2 SCHEMATIC DESIGN PHASE
2.1 Upon receipt of your written approval of the selected concept, we will provide outline
facility interface information for the water feature including utility requirements and facility
room sizes.
2.2 We will interface with you and all appropriate Project consultants to review drawings and
documents that they prepared and which are relevant to the water feature concept. Any
expenses relating to meetings outside of our offices are not covered in this Scope or
Contract Price.
2.3 We will prepare schematic design drawings necessary to detail the design intent for the
water feature, incorporating any changes that may have been made since our final design
presentation. We will issue these drawings for review as our schematic design package.
2.4 Our deliverables during this phase of work are as follows:
■ Site plan, if applicable.
■ Plans, sections and elevations in schematic form.
■ Preliminary details of important and /or special conditions.
■ Materials recommendations.
3 DESIGN DEVELOPMENT PHASE
3.1. Upon receipt of your written approval of our schematic design package, we wilt
with you and all appropriate Project consultants, as necessary and appropriate, to review
their working drawings and documents for construction to ensure that our design intent is
fully executed and incorporated. Any expenses relating to meetings outside of our offices
are not covered in this Scope or Contract Price.
ell
NET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) WWW.WETDEEIGN.COM
EXHIBIT A -HARP WATER FEATURE PROPOSAL NOVEMBER 30, 2000 PAGE 2
3.2 We will coordinate with the Project Architect to produce the water feature's architectural
details, but the Architect will prepare the final architectural working drawings. We will
review, advise and, in some cases, determine all architectural details directly related to
the design intent of the water feature and specifically as they relate to the physics and
performance of the water itself. Any expenses relating to meetings outside of our offices
are not covered in this Scope or Contract Price.
3.3 We will prepare design development drawings including mechanical, electrical, and
lighting schemes, as well as the basin and basin equipment layout, and equipment room
location. We will issue these drawings for review as our design development engineering
documents package.
3.4 We will review our design development engineering drawings with your staff, appropriate
Project consultants and /or that of the designated installation contractor via conference
calls.
3.5 Our deliverables during this phase of work are as follows:
• General notes and specifications
• Feature plan and sections
• Feature plan and details
• Piping and instrumentation diagram
• Equipment room plan and sections
• Electrical single line diagram and panel schedule
• Piping specifications
• Preliminary equipment schedule
4 ENGINEERING AND CONSTRUCTION DOCUMENT PHASE
4.1 Upon receipt of your written approval of our design development engineering package,
we will prepare layout and outline engineering drawings to define the facility spaces and
utility requirements necessary to accommodate the water feature's equipment.
4.2 We will prepare mechanical and electrical system engineering drawings and
documentation sufficient for the construction and installation of the water feature. We will
release these engineering documents for construction purposes.
4.3 We will prepare a package of final equipment schedules, including WET- furnished
equipment and contractor - furnished equipment. (For equipment to be furnished by the
installation contractor, you agree to provide equipment submittals to us for review and
comment prior to such equipment being purchased. Any equipment purchased without
our approval may nullify any warranties associated with the WET - supplied system.)
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F)
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EXHIBIT A -HARP WATER FEATURE PROPOSAL NOVEMBER 30, 2000 PAGE 3
4.4 We will review construction documents prepared by the Project Architect incorporating
our water feature, and assist, as necessary, to facilitate permitting and approval for
construction of the water feature. We do not provide sealing of architectural or
engineering drawings by a licensed professional. This will be your, the Project Architect's
and /or the Engineer's responsibility. We will provide a Confidentiality Agreement
document acknowledging our Proprietary Information, which must be signed by any third
party prior to their involvement during this process.
4.5 We will review our engineering documents for construction purposes with your staff,
appropriate Project consultants and /or that of the designated installation contractor to
facilitate understanding of our design intent, the systems provided, and the level of quality
and craftsmanship expected. Time for one trip for our project engineer for one day is
included in our Scope for this purpose.
4.6 Our deliverables during this phase of work are as fellows:
• General notes and specifications
• Feature finish plan and sections
• Feature basin plan and details
• Feature architectural details
• Piping and instrumentation diagram
• Basin equipment penetration and piping plan
• Equipment room plan and sections
• Feature mechanical details
• Electrical single line diagram and panel schedule
• Basin electrical wiring plan
• Electrical details
• Piping specifications
• Equipment schedule
5 WET- FURNISHED EQUIPMENT PHASE
5.1 We will furnish the following equipment FOB, Sun Valley, California:
5.1.1 MicroShooter assemblies ......................................................... .............................24
5.1 z WET PicoLightsM (white, 100W) .............................................. .............................27
5.1.3 Animation control panel / Interface control panel ....... ...............................
5.1.4 Air system ................................................................... ...............................
5.1.5 Air pressure control modules
5.1.6 Pumps .... ...............................
5.1.7 Basket strainers ....................
.............1
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) WWW.
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EXHIBIT A -HARP WATER FEATURE PROPOSAL NOVEMBER 30. 2000 PAGE 4
5.1.8 Junction boxes (submersible, small) .......................................... ..............................9
5.1.9 Water level controllers (1 to 4 probes), not incl. make -up valve ..............................3
5.1.10 Paver supports .......................................................................... .............................54
5.1.11 Paver porthole covers ............................................................... .............................27
5.1.12 Pressure gauges ........................................................................ ..............................6
5.1.13 Pressure /vacuum switches ...................................................... ..............................3
5.1.14 Remote programming unit ......................................................... ..............................1
5.1.15 Wind control sensor (dual, incl. case & anemometer) ............... ..............................1
5.2 At the time of preparation of this Proposal, the quantities of submersible junction boxes
and paver supports were conceptually estimated to be as noted in 5.1.8 and 5.1.10. The
Contract Price is based on those specific quantities and these quantities may change as
the design and working drawings are finally developed. If the quantities change, the
Contract Price will be amended accordingly, with $142 added or subtracted for each
submersible junction box and $69 added or subtracted for each paver support that is
added or deleted from the quantities above. Such change will be submitted in the form of
a change order, which you agree to pay should either quantity increase.
5.3 You and /or your designated representative(s) are welcome to visit our WET Labs facility to
verify WET- furnished equipment content prior to shipment to the site.
5.4 You will provide all other equipment including but not limited to: construction equipment
and tools, piping and wiring and those other materials and equipment items not identified
as WET- furnished in our engineering documents for construction purposes, required to
complete the installation and interconnection of the equipment we furnished. It is
imperative that our recommended and specified materials and techniques —as, for
example, waterproofing —be followed, and that you require the installation contractor to
do so. You are obligated to provide submittals for our review and approval if there is any
deviation from our equipment specifications.
6 CONSTRUCTION AND INSTALLATION PHASE
6.1 We will review and provide information, as appropriate, to the contractor's requests for
information (BFI's) and submittals, such as shop drawings, product data and samples.
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F)
EXHIBIT A -HARP WATER FEATURE PROPOSAL NOVEMBER 30, 2000 PAGE 5
6.2 Upon receipt of your and /or the contractor's written confirmation that the site is
substantially ready for our work in each instance, we will provide the following site visits
and field services for this phase of work:
6.2.1 One site trip for field technician for two days 0 6 person -hours total) to review site
conditions prior to construction of the water feature basin and equipment room.
No equipment is to be installed in the equipment room prior to this inspection.
6.2.2 One site trip for our field technician for seven days (56 person -hours total) to
provide technical direction to the local trade laborers during the installation period
of WET- furnished equipment. You will provide all construction, on -site assembly,
and trade labor for installing the equipment, WET- furnished or otherwise, on site.
6.2.3 One site trip for our field technician for two days (16 person -hours total) to review
site conditions prior to test and adjustment (T&A).
6.3 If our work is delayed due to incompleteness of the installation contractor's work, you
agree to provide round -trip airfare(s) for our personnel to return to the site when it is ready
for our work, or compensate us for the members of our staff held extra time at our then
prevailing hourly billing rates, and for any associated travel - related expenses (lodging,
meals, transportation, etc.) while they are at the site.
6.4 We will provide a Site Inspection Checklist that consists of pre - installation and pre -T &A
checklists to you. The pre - installation checklist contains all construction items related to
the water feature that must be completed by the installation contractor prior to the
installation of WET- furnished equipment and materials. The pre -T&A checklist contains all
construction and installation items that must be completed by the installation contractor
prior to our commencing field commissioning work.
7 FIELD COMMISSIONING AND PROGRAMMING PHASE
7.1 We will provide technical assistance for the start-up of the equipment and systems, and
the test and adjust calibration of the water feature.
7.2 We will provide you and the Contractor with a "punch list" of items of work needing
completion or correction by the installation contractor.
7.3 We will prepare and provide two separate choreographic programs for the water feature.
The total composition of each animation program will be up to four minutes duration,
which will then repeat in combination or separately, as desired.
NET DESIGNS 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) WWW.
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EXHIBIT A -HARP WATER FEATURE PROPOSAL NOVEMBER 30. 2000 PAGE 6
7.4 Our site visits and field services for this phase of work are as follows:
7.4.1 One site trip for our field technician for nine days (72 person -hours total) for test
and adjustment of the water feature and for post - installation operational training
to your designated equipment operators and /or maintenance personnel.
7.4.2 One site trip for our choreographer for three days for choreographing and final
design review of the water feature.
7.5 Two copies of the Operations and Maintenance Manual for the water feature provided
thirty calendar days after Substantial Completion of the Project.
7.6 Substantial Completion is defined as the time at which the Project is operating, or capable
of operating, for your beneficial use on a regularly scheduled basis. It is also the time at
which the warranty period begins. A Certificate of Substantial Completion will be issued to
you when our field technician has determined that the Project has reached that state. A
punch list of outstanding items that needs to be completed by us and /or the Contractor
will be compiled and attached to the Certificate of Substantial Completion. The existence
of such items will not be construed to mean that the Project is not Substantially
Complete.
8 SCHEDULE
We will perform our work to the following schedule, which may be adjusted in the event of a
delay by you and /or the designated contractor in responding to or approving our submissions:
8.1 Upon receipt of your written approval of
the selected concept, we will issue our
schematic design package within ............... ............................... ...........................four weeks
8.2 Upon receipt of your written approval of
the previous release, we will complete design
development and issue our design development
engineering documents package within ...... ............................... ............................six weeks
8.3 Upon receipt of your written approval of the
previous release, we will issue our engineering
drawings for construction purposes within ............... ..........................eight to twelve weeks
8.4 All other milestone due dates pertaining to our remaining Scope will be determined at a
later date when you and we have reviewed your overall Project schedule.
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WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) WWVWIVETOE!kIGN.COM
EXHIBIT A -HARP WATER FEATURE PROPOSAL NOVEMBER 30, 2000 PAGE 7
9 PRICE AND PAYMENT TERMS
9.1 The price for our Scope of Work as described in Sections 2 through 7 will be billed in the
amount of three hundred sixty -two thousand dollars — $362,000. All expenses relating
directly to this Project, including traveling and subsistence expenses for our staff, artwork
reproduction and courier services, are included in the Contract Amount.
9.2 You agree to pay us the Contract amount as follows:
9.2.1 Upon signing of this Contract
(10% of Contract amount) ...................... ............................... ........................$36,200
9.2.2 Upon issuance of our design development
engineering drawings package (20% of Contract amount) ... ........................$72,400
9.2.3 Upon issuance of our engineering drawings for
construction purposes documents package and
commencement of equipment fabrication (30% of Contract amount) ....... $108,600
9.2.4 Upon shipment of WET- furnished equipment
(30% of Contract amount) ..................... ............................... .......................$108,600
9.2.5 Upon Substantial Completion of the Project
(10% of Contract amount) ...................... ............................... ........................$36,200
9.3 You agree to make payment "9.2.5" upon our presentation of one copy of a Certificate of
Substantial Completion, approved and signed by you, or thirty days after the first public
opening of the Project, which ever occurs earlier.
10 PROVIDED BY OTHERS
The following elements and /or activities are excluded from our Scope of Work:
1o.1 Sealing of drawings by a licensed engineer or architect (if required).
10.2 As -built or record drawings.
10.3 Structural and civil engineering.
10.4 Construction and installation.
10.5 Quantity survey and /or fixed construction cost estimates.
10.6 Special studies including but not limited to: water quality analysis, wind studies,
. environmental impact reports, etc.
10.7 Permits, site loading and unloading of WET- furnished equipment, site storage and
security, equipment and tools to install WET- furnished equipment and contractor - supplied
labor and equipment.
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F)
ETDESIkN.COM
EXHIBIT A -HARP WATER FEATURE PROPOSAL NOVEMBER 30, 2000 PAGES
1o.8 Any and all other equipment, materials and labor required to complete the Project not
specifically listed as furnished by us in Sections 2 through 7 above.
1o.9 Sales tax or any other applicable taxes.
11 ADDITIONAL WORK AND BILLING RATES
11.1 Work you request of us but which is not included in the Scope of Work will be provided
on a time and expenses basis at our then prevailing hourly billing rates. Except as
provided herein, we will notify you before engaging in any activity not included in the
above Scope of Work.
11.2 Our current billing rates are:
• Principal and design director ........... ...............................
...........................$225 per hour
• Project designer .............................. ...............................
...........................$145 per hour
• Senior Designer .............................. ...............................
...........................$125 per hour
■ Designer ..........................................................................
............................$75 per hour
■ Graphic designer .............................................................
............................$75 per hour
■ Senior illustrator .............................. ...............................
...........................$165 per hour
■ Illustrator ......................................... ...............................
...........................$1 per hour
■ Choreographer ... ............................... Choreography is billed per program, not per hour
■ Senior project manager ................... ...............................
...........................$145 per hour
■ Project manager .............................. ...............................
...........................$110 per hour
■ Senior architect ............................... ...............................
...........................$145 per hour
■ Design development architect ........................................
............................$90 per hour
■ Senior development engineer ......... ............................... ...........................$145 per hour
■ Development engineer ................... ...............................
...........................$110 per hour
■ Special effects engineer ................. ...............................
...........................$165 per hour
■ Senior field technician .....................................................
............................$90 per hour
■ Field technician ...............................................................
............................$70 per hour
■ WET Care manager ......................... ...............................
...........................$145 per hour
■ WET Care senior field technician ....................................
............................$75 per hour
■ WET Care field technician ...............................................
............................$50 per hour
■ Mock -up technician .........................................................
............................$65 per hour
■ CAD / drafter .....................................................................
............................$ per hour
■ Administrative support ....................................................
............................$45 per hour
r u
DESI WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) N COM
EXHIBIT A —HARP WATER FEATURE PROPOSAL NOVEMBER 30. 2000 PAGE 9
12 TERMS OF AGREEMENT
12.1 Any and all designs we develop pursuant to this Agreement will be and remain our
exclusive propArty, and neither you nor any other party will acquire any copyright or other
proprietary rights therein. The preparation of documents by us under this Agreement does
not constitute a work for hire under the copyright laws. Accordingly, you will not use our
designs for any purpose whatsoever other than pursuant to a written agreement with us.
12.2 In the event the services to be performed by us under this Agreement include the
development and delivery of software, we will develop and install a demonstration version
of such software, in object code form only, in accordance with the delivery schedule in
Exhibit A. The demonstration software will be fully functional. However, the
demonstration software will be and remain .our sole property, and will be time limited with
respect to its operation. In accordance with that time limit, the demonstration software
will automatically cease to operate sixty (60) business days after the final payment under
this Agreement is due. Upon final payment to us under this Agreement, we will deliver
the final software that will not contain any time limits on its operation. This delivery may
be by way of a fresh copy of object code, or the providing of instructions for disabling, of
the time limits in the demonstration software. Your rights in the final software will be
specified and not extend beyond those rights set forth. Your rights in any software,
demonstration or final, will immediately terminate in the event any effort is made disable
the time lin without the permission and instruction from us, or to alter or disassemble
the object code for any purposes whatsoever.
12.3 We employ the WF101 Form of Professional Services Agreement between Client and
Design Professional. That document, a copy of which is attached, precisely defines our
Professional Services and your responsibilities. Our Proposal will be incorporated as
Exhibit A to that document.
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) WWW. ETDESIGIV.coM
EXHIBIT A -HARP WATER FEATURE PROPOSAL NOVEMBER 30. 2000 PAGE 10
This Agreement will be null and void if not fully executed and returned to WET Enterprises, Inc.
within sixty days of issue.
AGREEMENT ACCEPTED BY:
HARP UNDATION
Signed C
Title
/L /�
Date
V V V / ,
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) WWW.WETDESI N.COM
I
'
PROFESSIONAL SERVICES AGREEMENT
WF 101
This PROFESSIONAL SERVICES AGREEMENT ("Agreement ") is made as of November30, 2000 by and
between WET Enterprises, Inc ®, (or our subsidiary WET Design®, WET Labs Inc . or WET Care® and, at
times referred to as " WET®" "we" or "us ") and HARP Foundation (at times referred to as "Client" or
"you ") and is made with reference to the following facts:
We are engaged in the business of designing water features for commercial, public and recreational
facilities.
You desire to employ our services in connection with the design and implementation of a water feature
for the Historic Arkansas Riverwalkof Pueblo (HARP) project (the "Project ") in accordancewith the
terms and conditions of this Agreement.
Therefore, in consideration of the foregoing and the mutual covenants and promises contained
herein, both of us hereby agree as follows:
ARTICLE 1 • SCOPE OF SERVICES
1.1 The nature, scope, and schedule of services to be performed by us under this Agreement
( " Services ") will be as noted in Exhibit A attached and incorporated within this Agreement by reference.
1.2 You may, from time to time, authorize us in writing to perform services in connection with the
Project, which are outside the scope of those set forth in Exhibit A. Any such additional services also will
be governed by the provisions of this Agreement.
1.3 It is understood between us that we hold no structural, architectural, electrical and /or mechanical
engineering licenses and, consequently, we are not able to assume responsibility for assuring that the
designs we create will comply with applicable building and safety codes. You are responsible for
obtaining all electrical, architectural, mechanical and /or structural engineering permits, for the sealing of
drawings, and for satisfying requirements of all relevant building and safety codes. We agree to
cooperate with you and your designated architects, engineers and contractors in assuring that the
Project will conform to all applicable governmental codes and regulations. We will perf orm any and all
changes in the designs or documents we prepare, necessary to comply with such governmental codes
and regulations. Such changes will be performed at our expense, provided that at each stage of
construction, you notify us in writing of any such required changes within fourteen (14) days of your
receipt of the designs or documents. If you fail to notify us within fourteen (14) days, you will be
responsiblefor any costs associatedwith making any changes in the designs, documents or in the
facilities themselves, including any fines, penalties or other liability arising out of the failure to comply
with applicable government codes or regulations.
EXHIBIT A -2
L
PROFESSIONAL SERVICES AGREEMENT HARP WATER FEATURE NOVEMBER 30. 2000 PAGE 2
ARTICLE 2 • GOVERNMENTAL PERMITS
For all Services we provide for the Project covered by this Agreement, you are responsiblefor insuring
that all governmental approvals, licenses and permits required in order for the Project to proceed and for
us to receive payment are obtained.
ARTICLE 3 • TIME FOR COMPLETION
Our obligations to provide Services under this Agreement will commence upon the execution of this
Agreement. We will complete the Services in accordance with a schedule agreed upon by you and us
and attached as part of Exhibit A. Any delay by you in obtaining any necessary governmental permit or
license which delays our performance of Services will extinguish our obligation to complete Services
according to the schedule for completion of the Project contained in Exhibit A.
ARTICLE 4 ■ FEE
4.1 For Services we render under this Agreement, you will pay our fee in accordancewith the terms
contained in Exhibit A.
4.2 Reimbursable expenses will be billed at cost plus fifteen percent (15 %).
4.3 Our invoices to you will include charges for work we performed and expenses we incurred. All
charges on each invoice are due and payable in full upon receipt of invoice.
4.4 If you fail to pay an invoice in full when due, you agree to pay monthly service charges equal to
one and one -half percent (1 -1/2 %) or eighteen percent (18 %) per annum on the outstanding principal
balance. If payment is not made within five (5) days of the your receipt of written notification of non-
payment, then we reserve the right to declare you to be in default and to cease performing any further
Services. In the event of such default, we will be entitled to the relief contained in Article 11.
ARTICLE 5 • CONFIDENTIALITY OF MATERIAL
5.1 For the purposes of this Agreement, "Proprietary Information" means all designs, specifications,
methods, ideas, concepts, technologies or choreographic animation programs we disclose to you
concerning or related to the Project, including, but not limited to, the technologies and information
pertaining to our laminar flow nozzles; LeapFrog fountain technology; PopJetTm technology; ShooterO
technology; HydraControl Module'"' flow control technology; computer animation techniques;
QuadPod lighting technology; compressed air operated fountain technology; FireTornad6lm and other
fire system technology; fiber optic illumination technology; and any and all trade secrets or confidential
or proprietary information belonging to us.
5.2 As a result of your involvement in the Project, you may gain access to and acquire knowledge
related to our Proprietary Information. You acknowledge that any such knowledge acquired through your
association with us is confidential and that a confidential relationship exists between you and us. You
also acknowledge that any Proprietary Information we disclose under this Agreement constitutes a
trade secret and that title to and ownership of all patent, copyright, trade secret and other proprietary
rights in all Proprietary Information and in all plans, drawings, mockups, models and other materials
containing or reflecting Proprietary Information will be and remain our property. The restrictions on use
and disclosure of information, technologies and tangible or intangible work produced or owned by u0
contained in this article will survive the expiration or termination of this Agreement.
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) WWW
PROFESSIONAL SERVICES AGREEMENT HARP WATER FEATURE NOVEMBER 30. 2000 PAGE 3
5.3 You agree not to copy, use or disclose any Proprietary Information or any plans, drawings,
models, mock -ups or tangible or intangible work we produce, for any purpose outside the scope of this
Agreement, without our prior written permission. We may withhold such permission as a matter within
our sole discretion during the term of this Agreement and thereafter. Disclosures to your employees or
other personnel, as necessary for the completion of the Project, and presentations to the owners of the
Project will not requ re prior written permission, provided that you advise the owners, employees or
other related personnel that the Proprietary Information is confidentialand is not to be copied or
disclosed. For all disclosures by you of Proprietary Information, or information related to Proprietary
Information, to any third party, you will take reasonable preventive measures we request to protect this
information.
5.4 You acknowledge and agree that preparation of documents by us pursuant to this Agreement
does not constitute a work for hire under the copyright laws of the United States, and that we retain the
exclusive copyright interest in such documents. You further acknowledge that any technology,
developed for or in relation to work pursuant to this Agreement, whether patentable or not, whether
new or derivative of existing patents or other technology, belongs solely to us. Your use of documents
provided under this Agreement is to be consistent with Article 5.3 above.
5.5 You hereby grant us the right to use photographs and other materials developed from this Project
in our future promotional activities and you are permitted to utilize the same in your promotions, so long
as you acknowledge our participation in the Project and so long as you do not disclose Proprietary Infor-
mation.
5.6 The restrictions on use and disclosure of Proprietary Information discussed above will not apply to
information which is independently developed by you or which is or becomes known to the general
public in a commercially usable form, independentlyof any disclosure by you, except to the extent the
same are patented, subject to a pending patent application, or subject to copyright protection by us.
ARTICLE 6 • ACKNOWLEDGMENTOF DESIGN
6.1 You agree that two plaques we furnish will be installed in a conspicuous location on or near the
water feature. These plaques will be of a size not to exceed six inches by four inches (6" x 4 ") each, and
will acknowledge our design participation and disclose relevant patent and copyright information.
6.2 We will be the fountain consultant of record, and will be so noted on all design, construction and
fabrication drawings and advertising or publicity issued by you pertaining to the Project. The provisions
of this Article will survive the expiration or termination of this Agreement.
WET DESIGNS 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F)
WWW.WETDESUN.COM
PROFESSIONAL SERVICES AGREEMENT HARP WATER FEATURE NOVEMBER 30, 2000 PAGE 4
ARTICLE 7 • SOFTWARE RIGHTS
In the event the services to be performed by us under this Agreement include the development and
delivery of software, we will develop and install a demonstration version of such software, in object
code form only, in accordance with the delivery schedule in Exhibit A. The demonstration software
will be fully functional. However, the demonstration software will be and remain our sole property,
and will be time limited with respect to its operation. In accordance with that time limit, the
demonstration software will automatically cease to operate sixty (60) business days after the final
payment under this Agreement is due. Upon final payment to us under this Agreement, we will
deliver the final software that will not contain any time limits on its operation. This delivery may be by
way of a fresh copy of object code, or the providing of instructions for disabling, of the time limits in
the demonstration software. Your rights in the final software will be specified and not extend beyond
those rights set forth. Your rights in any software, demonstration or final, will immediately terminate
in the event any effort is made disable the time limits without the permission and instruction from us,
or to alter or disassemble the object code for any purposes whatsoever.
ARTICLE 8 • PERFORMANCE GUARANTEE
We warrant the Project water features will perform the water patterns specified in materials presented
to you, provided that your Project engineers fully incorporate our drawings, specificationsand
recommendations into the construction documents, that these documents are fully and properly
executed by your designated contractor, and that all equipment installation, operation, and maintenance
of the fountain is performed in accordance with our drawings, specifications, recommendations and
instructions. This performance guarantee will extend for a period of one (1) year from the date of initial
fountain operation, or one (1) year from the date of issuance of a Certificate of Substantial Completion
for the Project water features, whichever occurs earlier.
ARTICLE 9 • LIMITED EQUIPMENT WARRANTY
We warrant all equipment we furnish to be free from defects in workmarship or material for a
period of one (1) year from the date of Substantial Completion. Liablity under this warranty is
limited to repair or replacement of any parts which prove to be defective within that time, or, at
your option, repayment of the purchase price. This warranty will apply only if the equipment has
been returned (transportation prepaid) within one (1) year from the date of Substantial Completion.
Our liabilities and obligations arising from this warranty will cease if the equipment is abused,
altered, used in conditions other than those specified, or otherwise misused in any way. ill
technical advice and recommendations contained in the maintenance manuals and other
instructions we furnish are based on technical data and information which are intended for use by
persons having the skill and knowledge generally possessed by persons volved in the
maintenance of sophisticated mechanical and electrical systems.
ARTICLE 10 ■ DISCLAIMER
1o.1 You agree that any warranties, expressed or implied by us, with regard to the performance
or operation of any equipment or materials extend only toequipment or materials manufactured or
we furnish. Warranties for all other equipment used in the Project are limited to the warranties
provided by the manufacturer or installer of said equipment.
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F)
J IGNOt WWW.WET
PROFESSIONAL SERVICES AGREEMENT HARP WATER FEATURE NOVEMBER 30. 2000 PAGES
10.2 It is agreed between us that liability for any damage, injury or other harm, resulting from
equipment used in the Project will be the sole and absolute responsibility of the actual
manufacturer or installer of such component parts or materials. You agree to hold us harmless in
the event of any injury or damage arising out of the performance or operation of, or otherwise
related to, any such equipment or materials which were not manufactured by us.
ARTICLE 11 • INSURANCE
11.1 We are an independent contractor, not an employee of the Client under this Agreement, and we
maintain liability insurance in the amount of one million dollars ($1,000,000) to cover any claims arising
out of our performance of Services under this Agreement. We will indemnify, hold harmless, and
defend you from any claims arising exclusively from our acts or omissions or our agents within the
scope of this Agreement.
11.2 You will name us as a co-insured party under any general liability insurance policy in which you are
named as an insured against any faults, failures or damages resultingfrom the design, operation,
installation or maintenance of the equipment furnished under this Agreemenc.
11.3 Our liability for harm or damage arising from the installation or operation of any machinery or
materials related to the Project are limited to such harm or damage caused by our acts or omissions or
our agents.
11.4 You will, at your own expense, indemnify us and hold us harmless from any and all loss, damage,
liability, or expense, including Attorney's fees, incurred by us in defense of any action seeking recovery
for damage or injury related to the Project, which arose out of your acts or omissions or your agents.
ARTICLE 12 ■ TERMINATION
12.1 If we elect to cease providing Services due to your non - payment of fees, or upon other breach or
willful termination of this Agreement by you, then we will have the option, upon five (5) days written
notice, to terminate this Agreement and demand and receive payment from you for all work executed,
proprietary equipment, purchased parts, other non - returnable materials ordered or supplied and any
other loss sustained, including our normal overhead plus a profit often percent (10 %) of the outstanding
contract price.
12.2 In the event of termination, we will be relieved of any obligation to provide further Servbes under
this Agreement. All remedies available to you and us under this Agreement or at law will survive
termination of this Agreement.
12.3 In the event of termination, you will take reasonable precautions to protect all materials we
supplied from loss or damage caused by theft, vandalism, misuse or the effects of weather. You will be
responsible for the cost of any such damage caused by your failure to exercise reasonable care in the
protection of such materials until we have had a reasonable amount of time to take possession and
control of the materials.
ARTICLE 13 • NOTICE
Any notice required or permitted to be given regarding this Agreement will be in writing and be deemed
given when deposited in a sealed envelope in the United States mail or overnight express delivery,
postage prepaid, or transmitted via facsimile, addressed as follows:
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F)
O (V � l .`�
v
WWW.WETDESIGN.COM
PROFESSIONAL SERVICES AGREEMENT HARP WATER FEATURE NOVEMBER 30, 2000 PAGE 6
If to WET:
WET Design
90 Universal City Plaza
Universal City, California 91608
If to Client:
HARP Foundation
415 North Grand Avenue
Pueblo, Colorado 810093
Or to such address either party may direct by notice given to the other as shown above.
ARTICLE 14 • ASSIGNMENT
Neither this Agreement nor any duties or obligations hereunderwill be delegable or assignable by either
you or us without the prior written consent of the other party. In the event of any assignment, the
assignee or his legal representative wil I agree in writing to personally assume, perform, and be bound by
the terms of this Agreement.
ARTICLE 1S • SUCCESSORS AND ASSIGNS
Subject to the provision regarding assignment, this Agreement will be binding on the heirs, executors,
administrators, successors and assigns of the respective parties.
ARTICLE 16 • ATTORN EY'S FEES
If any action in law or equity is brought to enforce or interpret the provisions of this Agreement, the
prevailing party will be entitled to reasonable Attorney's fees in addition to any other relief to which it
may be entitled.
ARTICLE 17 • ARBITRATION AND GOVERNING LAW
This Agreement will be governed and interpreted in accordance with the laws of the State of California.
Except as provided below, all disputes, controversies or differences which may arise between us, out of
or in relation to the Agreement, or the breach thereof, which you and we cannot resolve after discussion
in good faith attempting to reach an amicable solution, will be finally settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association by one arbitrator
appointed in accordance with said rules. All arbitration will beheld in Los Angeles, California, and this
contract, including the arbitrable clause, and court proceeding and all arbitration proceedings and awards
hereunderwill be governed by the laws of the State of California. Any award in arbitration in'lavor of you
against us for any reason whatsoeverwill not exceed in total, the total fee you already paid us under this
Professional Services Agreement as of the date of initiation of the arbitration, as reduced by the value of
L
he equipment we supplied and not returned to us by you. Issues concerning the validity or ownership
of patents, copyrights and other Proprietary Information will not be subject to Arbitration.
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F) WWW
PROFESSIONAL SERVICES AGREEMENT HARP WATER FEATURE NOVEMBER 30, 2000 PAGE 7
ARTICLE 1S • TERM
Unless terminated in accordance with the provisions of Article 12, or extended by written consent of the
Parties, the provisions of this Agreement regarding our obligations to perform Services and your
obligations to pay for said Services will remain in effect until completion of Services by WET and receipt
by WET of final payment for Services rendered and reimbursable costs incurred. The Parties understand
that all other provisions of the Agreementwill survive the expiration of this Agreement.
ARTICLE 19 • FORCE MAJEURE
19.1 Any delay or failure in performance of any part of the whole of this Agreement by either party will
be excused if and to the extent caused, directly, or indirectly, by occurrences beyond such party's or
parties control, including, but not limited to fire, flood, tidal waves, earthquake, lightning typhoon,
hurricane, cyclone, plague or other epidemics, explosion, accidents or breakdowns, acts of God, war,
blockade, embargoes, seizure, threat of war, warlike condition, detention, insurrection, mobilization, riot,
civil commotion, revolution, sanction, looting, strikes, labor dispute, labor trouble, lockouts, industrial
disturbance, shortage or control of power supply, lack of the usual means of transportation, panic,
closing of exchanges, nationalization, prohibition of import or export, refusal of issue of government
order or restriction or license, hostilities, or any cause or causes, whether similar or dissimilarto those
already specified, which cannot be controlled by the Parties. If as a result of legislation or governmental
action, any party or parties are precluded from receiving any benefit to which they are entitled under this
Agreement, the Parties will review the terms of this Agreement so as to restore the party or parties to
the same relative positions as previously obtained hereunder.
19.2 The affected party will give written notice of occurrence of force majeure to the other party with
reasonable promptness. Should the impediment last longer than one hundred twenty (120) days, the
other party will have the option of terminating this Agreement upon thirty (30) days' written notice.
ARTICLE 20 • ENTIRE AGREEMENT
This Agreement contains the complete agreement and understanding between you and us and
supersedes all prior oral or written proposals, agreements or communications with respect to the
subject matter of this Agreement. This Agreement may only be modified in writing signed by both you
and us.
ARTICLE 21 • SEVERABILITY
The provisions of this Agreementwill be deemed to be severable, and any invalidity of any provision of
this Agreementwill not affect the validity of the remaining provisionsof this Agreement. No failure or
delay of any party hereto to exercise any power given it under this Agreement or to insist upon strict
compliance by any of the parties hereto of any obligations will constitute a waiver of any of the party's
rights to demand exact compliance with the terms hereof.
WET DESIGNS 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F)
CV
WWW.WETDESIkN.COM
PROFESSIONAL SERVICES AGREEMENT HARP WATER FEATURE NOVEMBER 30, 2000 PAGE 8
EXECUTED at Universal City California, the day and year first written above.
HARB + INDATION
Signed �� V
Title
Date
WET DESIGN® 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY, CALIFORNIA 91608 818 769 6200 (T) 818 763 8559 (F)
v'
WWW.WETDESIGKCOM
10
WET DESIGN® CHANGE CRIDER 0 1
CNANAfi ORDER DATE %W1
PpOJECT HARP
TO f1ARP FOUNDATION
CONTRACT DATE 11fda00
cONTRACT wa PROFESSIONAL SERVICES & EQUIPMENT
scope QO WORK
Added Water Treatment System
SCHEDULE
No Ir"pact
° U60
352.000.00
THE ORIGINAL CONTRACT AMOUNT
NGT CHANGE 13y PREVIOUSLY AUTMORIZEO CMANGE ORDERS usD
b.00
THE REVISED CONTRACT AMOUNT PRIOR TO THIS CHANGE ORDER USO
362,000.00
use
29,C00.00
THE CIiANOE ORDER AMOUNT
u5o
391,000.00
THE NEW CONTRACT AMOUNT
pAYMMT SCMEOULH
Upon Signing of Contract ( PAIDI .................................. .. $36,200.00
Upon Issuance of Design Development ........................ . . . •..•
Upon Issuance of Engineering Drawings for Constn.1010n ...... S1 17,300.00
Upon Shipment of WET furnished equipment . .• ................
Upon Substantial Completion ....... ............................... . .•$39,100.00
S391.000-00
Total Contract Amount ...................................................
WET DESIGN
90 UNIVERSAL CITY PLAZA
UNIVERSAL CITY, CA 91908
i
li
°
MARP FOUNDATION
419 N. GRAND AVENUE
PUEBLO. COLORA00 91003
U.S.A.
EXHIBIT A -3
MAYA
m 616 793 6558 IF1 yy wN/ yyET pEStGN.
WeT DESIONG 90 UNIVERSAL CITY PLAZA, UNIVERSAL CITY. CALIFORNIA 91608 919 769 8200