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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 �M .A official hand �. •�c on Expires: �T., VBL� •. o OF c0�-� 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 emission Expires: ��,. Q�,�•*pTA q'1' TAG 0 • Z J �',�'•.AV B ��G: P 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) �v �d WWW.WETDESIGN.COM 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. 1 3 ESf\GN.�.vw 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. 1 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. J " ' `J /� 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