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HomeMy WebLinkAboutResolution - 2001-R0538 - Freese And Nichols John T. Montford Dam - 12/13/2001Resolution No. 2001-RO538 December 13, 2001 Item No. 48 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an agreement between the City of Lubbock and Freese and Nichols, Inc. for professional services for the City of Lubbock, and all related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 13th day of December , 2001. WINDY SITT�,AYOR ATTEST: Rebecca Garza City Secretary APPROVED AS TO CONTENT: '2 ;_ Chester Carthel, P.E. Chief Engineer APPROVED AS TO FORM: William de Haas Contract Manager/Attorney Dh/Ccdocs/Freese&Nichols.res December 4, 2001 Resolution No. 2001-RO538 AGREEMENT FOR PROFESSIONAL SERVICES STATE OF TEXAS COUNTY OF TARRANT This AGREEMENT is entered into by the City of Lubbock, Texas, hereinafter called "OWNER', and Freese and Nichols, Inc., hereinafter called "FNI". In consideration of the AGREEMENTS herein, the parties agree as follows: I. EMPLOYMENT OF FNI: In accordance with the terms of this AGREEMENT: OWNER agrees to employ FNI; FNI agrees to perform professional services in connection with the Project; OWNER agrees to pay to FNI compensation. The Project is described as evaluation and monitoring of John T. Montford Dam. II. SCOPE OF SERVICES: FNI shall render professional services in connection with Project as set forth in Attachment SC - Scope of Services and Responsibilities of OWNER which is attached to and made a part of this AGREEMENT. III. COMPENSATION: OWNER agrees to pay FNI for all professional services rendered under this AGREEMENT in accordance with Attachment CO - Compensation which is attached hereto and made a part of this AGREEMENT. FNI shall perform professional services as outlined in the AScope of Services@ for a lump sum fee of Thirty -One Thousand Two Hundred Dollars ($31,200) for Phase I Services. Details concerning the fee are included in Attachment CO. If FNI=s services are delayed or suspended by OWNER, or if FNI=s services are extended for more than 60 days through no fault of FNI, FNI shall be entitled to equitable adjustment of rates and amounts of compensation to reflect reasonable costs incurred by FNI in connection with such delay or suspension and reactivation and the fact that the time for performance under this AGREEMENT has been revised. IV. TERMS AND CONDITIONS OF AGREEMENT: The Terms and Conditions of Agreement as set forth as Attachment TC shall govern the relationship between the OWNER and FNI. Nothing under this AGREEMENT shall be construed to give any rights or benefits in this AGREEMENT to anyone other than OWNER and FNI, and all duties and responsibilities undertaken pursuant to this AGREEMENT will be for the sole and exclusive benefit of OWNER and FNI and not for the benefi% of any other party. This AGREEMENT constitutes the entire AGREEMENT between OWNER and FNI and supersedes all prior written or oral understandings. This contract is executed in two counterparts. EXECUTED this 13th day of THE CITY OF LUBBOCK WINDY M MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Chester Carthel, P.E., Chief Engineer APPROVED AS TO FORM: December 2001 William de Haas, Contract Manager/Attorney FREESE & NICHOLS, INC. (FNI) BY �;Q / `' TITLE: Resolution No. 2001—RO538 ATTACHMENT SC SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER ARTICLE I The scope of services to be performed under this contract is to be performed in phases. FNI is authorized to begin work on Phase I upon the execution of this AGREEMENT. The scope of services for subsequent phases or special services and the fee associated therewith shall be negotiated separately and authorized in writing by the OWNER prior to FNI beginning the work on additional phases or special services. BASIC SERVICES: FNI shall render the following professional services in connection with the development of the Project: PHASE I SERVICES: FNI is authorized to begin work with the execution of this contract on the following scope of services. A. Perform a visit to the Brazos River Authority's (BRA) Headquarters in Waco Texas to obtain a copy of all reports, operations and maintenance records, and instrumentation spreadsheets currently used for tracking the instrumentation at John T. Montford Dam. B. Perform a review of the historical instrumentation data and project records and an initial visual inspection of the dam. The inspection is to be performed in accordance with the Corps of Engineers Standards by an experienced registered professional engineer and a registered professional geotechnical engineer. C. FNI will provide services to perform quarterly posting and data reduction for all instrumentation data provided by the OWNER. Current time -history plots will be posted quarterly to FNI's internet web site and made accessible to the OWNER on a 24 -hours per day seven days a week basis. This data will be backed up on the OWNER's in house computer storage system and a "CD" disk of the data files provided every six months for the OWNER's records. D. FNI will review the instrumentation data quarterly and provide the OWNER an e-mail report ofthe status of this contract and the instrumentation data being collected at John T. Montford Dam. FNI will monitor the performance of the dam in comparison with acceptable norms for dams of this nature. E. Reporting for this effort will include a draft report of the initial dam safety inspection. This report will be provided to the OWNER in three copies within 60 days of the site visit of the dam. Fifteen days after receiving the OWNER's comments or approval of the draft report, FNI will provide six copies of the final report. This report will document and provide an evaluation of the historical instrumentation data; document the visual observations of the safety inspection and provide comments and recommendations on the dam; the precision survey data and instrumentation data collected for the previous year. The report will also provide recommendations for future changes in the operation and maintenance of the dam, if required. PHASE 11 SERVICES: The Phase II services are not included in the fee developed for this contract If the OWNER would like FNI to proceed with Phase H services, an amendment to this AGREEMENT will be negotiated. FNI is authorized to begin work on the Phase II scope of service only after the scope has been finalized and an agreeable fee negotiated. Direction to proceed will be provided in writing by the Owner. Phase H services may include and are not limited to the following: A. Perform an annual safety inspection of John T. Montford Dam. The inspection is to be performed in accordance with the Corps of Engineers Standards by an experienced registered professional engineer. FNI 4 RAC0NTRACM0011C0NTRACT\LUBB0CK INSTRUMENT without sub-RHW.doc SC -1 OWNQ B. FNI will provide services to perform quarterly posting and data reduction for all instrumentation data provided by the OWNER. Time -history plots will be posted quarterly to FNI's inter net web site and made accessible to the Owner a 24 hour per day seven days a week basis. This data will be backed up on FNI's in house computer storage system and a "CD" disk of the data files provided every six months for the Owners' records. C. FNI will review the instrumentation data provided quarterly by the OWNER and provide the OWNER an e-mail report of significant observations concerning the instrumentation data being collected at John T. Montford Dam. FNI will monitor the performance of the dam in comparison with acceptable norms for dams of this nature. D. Reporting: 1. A draft report of the dam safety inspection will be provided to the Owner in three copies within 60 days of the site visit of the dam. Fifteen days after receiving the Owners comments on the draft report, FNI will provide six copies of the final report. This report will document the visual observations of the safety inspection and provide comments and recommendations on the dam operations and maintenance; the precision survey data; and instrumentation data collected for the previous year. 2. The report will also provide, if required, recommendations for future budget items that relate to the dam. ARTICLE H SPECIAL SERVICES: Additional Services to be performed by FNI, if authorized by OWNER, which are not included in the above described basic services, are described as follows: A. Geotechnical investigations to assist FNI in determining an appropriate course of action for repair or rehabilitation of the dam or appurtenant structures. B. Slope stability evaluations of the dam based on existing piezometric conditions. C. Structural evaluations and the design of repairs for the dam structures. D. Electrical evaluations and the design of repairs for the dam equipment. E. Mechanical evaluations and the design of repairs for the dam equipment. F. Field surveying required for the preparation of designs and drawings. G. Field layouts or the furnishing of construction line and grade surveys. H. GIS mapping and survey services or assistance with these services. I. Making property, boundary and right-of-way surveys, preparation of easement and deed descriptions, including title search and examination of deed records. J. Providing services to investigate existing conditions or facilities, or to make measured drawings thereof, or to verify the accuracy of drawings or other information furnished by the OWNER. K. Providing renderings, models, and mock-ups requested by the OWNER. L. Making revisions to drawings, specifications or other documents when such revisions are 1) consistent with approvals or instructions previously given by the OWNER or 2) due to other causes not solely within the control of the OWNER. FN RACONTRACT"a001\CONTRACMUBBOCK INSTRUMENT without sub-RHW.doc SC -2 OWNE09---" M. Providing consultation concerning the replacement of any work damaged by fire or flood. N. Investigations involving consideration of operation, maintenance and overhead expenses, and the preparation of rate schedules, earnings and expense statements, feasibility studies, appraisals, evaluations, assessment schedules, and material audits or inventories required for certification of force account construction performed by FNI. O. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. P. Providing shop, mill, field or laboratory inspection of materials and equipment. Observe factory tests of equipment at any site remote to the project or observing tests required as a result of equipment failing the initial test. Q. Conducting pilot plant studies or tests. R. Preparing Operation and Maintenance Manuals or conducting operator training. S. Preparing data and reports for assistance to FNI in preparation for hearings before regulatory agencies, courts, arbitration panels or any mediator, giving testimony, personally or by deposition, and preparations therefore before any regulatory agency, court, arbitration panel or mediator. T. Furnishing the services of a Resident Project Representative to act as FNI's on-site representative during the Construction Phase. The Resident Project Representative will act as directed by FNI in order to provide more extensive representation at the Project site during the Construction Phase. Through more extensive on-site observations of the work in progress and field checks of materials and equipment by the Resident Project Representative and assistants, FNI shall endeavor to provide further protection for the OWNER against defects and deficiencies in the work. ARTICLE III TIME OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this AGREEMENT and agrees to complete the services for Phase I fourteen (14) months after notice to proceed. If FNI's services are delayed through no fault of FNI, FNI shall be entitled to adjust contract schedule consistent with the number of days of delay. These delays may include but are not limited to delays in OWNER or regulatory reviews, delays on the flow of information to be provided to FNI, governmental approvals, etc. These delays may result in an adjustment to compensation as outlined on the face of this AGREEMENT and in Attachment CO. ARTICLE IV RESPONSIBILITIES OF OWNER: The OWNER shall perform the following in a timely manner so as not to delay the services of FNI: A. Designate in writing a person to act as OWNER's representative with respect to the services to be rendered under this AGREEMENT. Such person shall have contract authority to transmit instructions, receive information, interpret and define OWNER's policies and decisions with respect to FNI's services for the Project. B. Provide all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the drawings and specifications. N4' F R:\CONTRACT\2001\CONTRACMUBBOCK INSTRUMENT without sub-RHW.doc SC -3 OWNER C. Assist FNI by placing at FNI's disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. D. Arrange for access to and make all provisions for FNI to enter upon public and private property as required for FNI to perform services under this AGREEMENT. E. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by FNI, obtain advice of an attorney, insurance counselor and other consultants as OWNER deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of FNI. F. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. G. The OWNER shall make or arrange to have made all subsurface investigations, including but not limited to borings, test pits, soil resistivity surveys, and other subsurface explorations. The OWNER shall also make or arrange to have made the interpretations of data and reports resulting from such investigations. All costs associated with such investigations shall be paid by OWNER. H. Provide such accounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as OWNER may require or the OWNER may reasonably request with regard to legal issues pertaining to the Project including any that may be raised by Contractor(s), such auditing service as OWNER may require to ascertain how or for what purpose any Contractor has used the moneys paid under the construction contract, and such inspection services as OWNER may require to ascertain that Contractor(s) are complying with any law, rule, regulation, ordinance, code or order applicable to their furnishing and performing the work. I. OWNER shall determine, prior to receipt of construction bid, if FNI is to furnish Resident Project Representative service so the Bidders can be informed. J. If OWNER designates a person to serve in the capacity of Resident Project Representative who is not employed by FNI or FNI's agent or employee, the duties, responsibilities and limitations of authority of such Resident Project Representative(s) will be set forth in an Attachment attached to and made a part of this AGREEMENT before the Construction Phase of the Project begins. Said attachment shall also set forth appropriate modifications of the Construction Phase services together with such adjustment of compensation as appropriate. K. Attend the pre-bid conference, bid opening, preconstruction conferences, construction progress and other job related meetings and substantial completion inspections and final payment inspections. L. Give prompt written notice to FNI whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of FNI's services, or any defect or nonconformance of the work of any Contractor. M. Furnish, or direct FNI to provide, Additional Services as stipulated in Attachment SC, Article lI of this AGREEMENT or other services as required. N. Bear all costs incident to compliance with the requirements of this Article IV. RACONTRACT\200I\CONTRACT\LUBBOCK INSTRUMENT without sub-RHW.doc SC -4 FNI�/ OWNEX,F' ARTICLE V DESIGNATED REPRESENTATIVES: FNI and OWNER designate the following representatives: OWNER's Designated Representative - FNI's Project Manager - FNI's Accounting Representative - Chester Carthel, P.E. 1625 13' Street, Rm. 107 Lubbock, Texas 79401 Phone: (806) 775-2344 Fax: (806) 775-3344 E-mail: ccarthel@mail.ci.lubbock.tx.us Ron Waters, P.E., Ph.D. 4055 International Plaza, Suite 200 Fort Worth, Texas 76109-4895 Phone: (817) 735-7333 Fax: (817) 735-7491 E-mail: rhw@freese.com Terri Witcher 4055 International Plaza, Suite 200 Fort Worth, Texas 76109-4895 Phone: (817) 735-7339 Fax: (817) 735-7491 E-mail: ttw@freese.com R:\CONTRACT\2001\CONTRACMUBBOCK INSTRUMENT without sub-RHW.doc SC -5 FNI OWNER Resolution No. 2001—RO538 ATTACHMENT CO COMPENSATION A. Basic Services: Compensation to FNI for the Basic Services in Attachment SC shall be the lump sum of Thirty -One Thousand Two Hundred Dollars ($31,200). If FNI sees the Scope of Services changing so that additional services are needed, including but not limited to those services described as Additional Services in Attachment SC, FNI will notify OWNER for OWNER's approval before proceeding. Additional Services shall be computed based on a negotiated lump sum. B. Schedule of Charges for Additional Work: Staff Member Resident Representative Salary Cost Times Multiplier of 2.3 Salary Cost Times Multiplier of 2.0 Salary Cost is defined as the cost of salaries (including sick leave, vacation, and holiday pay applicable thereto) plus unemployment and payroll taxes and contributions for social security, employment compensation insurance, retirement benefits, medical and other insurance, and other miscellaneous benefits. Other Direct Expenses Actual Cost Times Multiplier of 1.15 Other direct expenses shall include outside printing and reproduction expense, communication expense, travel, transportation and subsistence away from Fort Worth and other miscellaneous expenses directly related to the work, including costs of laboratory analysis, test, and other work required to be done by independent persons other than staff members. For CAD services performed In-house by non-FNI employees where FNI provides workspace and equipment to perform such services, these services will be billed at cost times a multiplier of 2.0. This markup approximates the cost to FNI if an FNI employee was performing the same or similar services. Rates for In-house Services Computer and CAD PC CAD Stations Interpro PC Stations VAX Computer Print Shop $10.00 per connect hour $12.50 per connect hour $ 8.00 per connect hour $20.00 per connect hour Bluelines Offset and Xerox Copies Offset and Xerox Copies GBC Binding (Regular Cover) GBC Binding (Emboss. Cover) Tape Binding (Regular Cover) Tape Binding (Emboss. Cover) 4-29-95 Calcomp Plotter Bond $ 2.00 per plot Color $ 3.50 per plot Vellum $ 4.00 per plot Mylar $10.00 per plot $ 0.07 per square foot $ 0.07 per single side copy $ 0.14 per double side copy $ 2.00 per book $ 4.00 per book $ 1.75 per book $ 3.75 per book RACONTRACT1200WONTRACMUBBOCK INSTRUMENT without sub-RHW.doc CO -1 Resolution No. 2001-RO538 8-20,96 ATTACHMENT TC TERMS AND CONDITIONS OF AGREEMENT i. DEFINITIONS: The term Owner as used herein refers to City of Lubbock, Texas The term FNI as used herein refers to Freese and Nichols, Inc., its employees and agents; also its subcontractors and their employees and agents. As used herein, Services refers to the professional services performed by Freese and Nichols pursuant to the AGREEMENT. 2. CHANGES: Owner, without invalidating the AGREEMENT, may order changes within the general scope of the WORK required by the AGREEivtENT by altering, adding to and/or deducting from the WORK to be performed. If any change under this clause causes an increase or decrease in FNI's cost of, or the time required for, the performance of any part of the Services under the AGREEMENT, an equitable adjustment will be made by mutual agreement and the AGREEMENT modified in writing accordingly. 3. TERMINATION: The obligation to provide services under this AGREEMENT may be terminated by either party upon ten days' written notice. In the event of termination, FNI will be paid for all services rendered and reimbursable expenses incurred to the date of termination and, in addition, all reimbursable expenses directly attributable to termination. 4. CONSEQUENTIAL DAMAGES: In no event shall FNI or its subcontractors be liable in contract, tort, strict liability, warranty, or otherwise for any special, indirect, incidental or consequential damages, such as loss of product, loss of use of the equipment or system, loss of anticipated profits or revenue, non -operation or increased expense of operation or other equipment or systems. 5. INFORMATION FURNISHED BY OWNER: Owner will assist FNI by placing at FNI's disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. FNI shall have no liability for defects or negligence in the Services attributable to FNI's reliance upon or use of data, design criteria, drawings, specifications or other information furnished by Owner and Owner agrees to indemnify and hold FNI harmless from any and all claims and judgments, and all Iosses, costs and expenses arising therefrom. FNI shall disclose to Owner, prior to use thereof, defects or omissions in the data, design criteria, drawings, specifications or other information furnished by Owner to FNI that FNI may reasonably discover in its review and inspection thereof. 6. INSURANCE: FNI shall provide to Owner certificates of insurance which shall contain the following minimum coverage (All limits in thousands): Commercial General Liability Workers' Compensation General Aggregate $2,000 Each Accident $500 Automobile Liability (Any Auto) Professional Liability CSL $1,000 $3,000 Annual Aggregate 7. SUBCONTRACTS: If, for any reason, at any time during the progress of providing Services, Owner determines that any subcontractor for FNI is incompetent or undesirable, Owner will notify FNI accordingly and FNI shall take immediate steps for cancellation of such subcontract. Subletting by subcontractors shall be subject to the same regulations. Nothing contained in the AGREEMENT shall create any contractual relation between any subcontractor and Owner. 8. OWNERSHIP OF DOCUMENTS: All drawings, reports data and other project information developed in the execution of the Services provided under this AGREEMENT shall be the property of the Owner upon payment of FNI's fees for services. FNI may retain copies for record purposes. Owner agrees such documents are not intended or represented to be suitable for reuse by Owner or others. Any reuse by Owner or by those who obtained said documents from Owner without written verification or adaptation by FNI will be at Owner's sole risk and without liability or legal exposure to FNI, or to FNI's independent associates or consultants, and Owner shall indemnify and hold harmless FNI and FNI's independent associates and consultants from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. Any such verification or adaptation will entitle FM to further reasonable compensation. FNI may reuse all drawings, report data and other project information in the execution of the Services provided under this AGREEMENT in FNI's other activities. Any reuse by FNI will be at FNI's sole risk and without liability or legal exposure to Owner, and FNI shall indemnify and hold harmless Owner from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. POLLUTANTS AND HAZARDOUS WASTES: I. is understood and agreed that FNI has neither created nor contributed to the creation or existence of any hazardous, radioactive, toxic, irritant, pollutant, or otherwise dangerous substance or condition at the site, if any, and its compensation hereunder is in no way commensurate with the potential risk of injury or loss that may be caused by exposures to such substances or conditions. The parties agree that in performing the Services required by this AGREEMENT, FNI does not take possession or control of the subject site, but acts as an invitee in performing the services, and is not therefore responsible for the existence of any pollutant present on or migrating from the site. Further, FNI shall have no responsibility for any pollutant during clean-up, transportation, storage or disposal activities. 10. OPINION OF PROBABLE COSTS: FNI will furnish an opinion of probable project development cost based on present day cost, but does not guarantee the accuracy of such estimates. Opinions of probable cost, financial evaluations, feasibility studies, economic analyses of alternate solutions and utilitarian considerations of operations and maintenance costs prepared by FNI hereunder will be made on the basis of FNI's experience and qualifications and represent FNI's judgement as an experienced and qualified design professional. It is recognized, however, that FNI does not have control over the cost of Iabor, material, equipment or services furnished by others or over market conditions or contractors' methods of determining their prices. 11. CONSTRUCTION REPRESENTATION: If required by the AGREEMENT, FNI will furnish Construction Representation according to the defined scope for these services. FNI will observe the progress and the quality of work to determine in general if the work is proceeding in accordance with the Contract Documents. In performing these services, FNI will endeavor to protect Owner against defects and deficiencies in the work of Contractors; FNI will report any observed deficiencies to Owner, however, it is understood that FNI does not guarantee the Contractor's performance, nor is FNI responsible for the supervision of the Contractor's operation and employees. FNI shall not be responsible for the means, methods, techniques, sequences or procedures of construction selected by the Contractor, or the safety precautions and programs incident to the work of the Contractor. FNI shall not be responsible for the acts or omissions of any person (except his own employees or agent) at the Project site or otherwise performing any of the work of the Project. If Owner designates a person to serve in the capacity of Resident Project Representative who is not a FNI's employee or FNI's agent, the duties, responsibilities and limitations of authority of such Resident Project Representative(s) will be set forth in writing and made a part of this AGREEMENT before the Construction Phase of the Project begins. 12. PAYMENT: Progress payments may be requested by FNI based on the amount of services completed. Payment for the services of FNI shall be due and payable upon submission of a statement for services to OWNER. Statements for services shall not be submitted more frequently than monthly. Any applicable new taxes imposed upon services, expenses, and charges by any governmental body after the execution of this AGREEMENT will be added to FNI's compensation. If OWNER fails to make any payment due FNI for services and expenses within thirty (30) days after receipt of FNI's statement for services therefore, the amounts due FNI will be increased at the rate of one percent (1%) per month from said thirtieth (30th) day, and, in addition, FNI may, after giving seven (7) days' written notice to OWNER, suspend services under this AGREEMENT until FNI has been paid in full, all amounts due for services, expenses and charges. 13. ARBITRATION: No arbitration arising out of, or relating to, this AGREEMENT involving one party to this AGREEMENT may include the other party to this AGREEMENT without their approval. 14. SUCCESSORS AND ASSIGNMENTS: OWNER and FNI each are hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and FNI are hereby bound to the other party to this AGREEMENT and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this AGREEMENT. Neither OWNER nor FNI shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) this AGREEMENT without the written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted bylaw. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this AGREEMENT. Nothing contained in this paragraph shall prevent FNI from employing such independent associates and consultants as FNI may deem appropriate to assist in the performance of services hereunder. 15. PURCHASE ORDERS: If a Purchase Order is used to authorize FNI's Services, only the terms, conditions/instructions typed on the face of the Purchase Order shall apply to this AGREEMENT. Should there be any conflict between the Purchase Order and the terms of this AGREEMENT, then this AGREEMENT shall prevail and shall be determin tive of the conflict. FN OWNER