12-R-104 Amended Professional Services Agreement with Jackson A&E Associates, Inc.RESOLUTION NO. 12-R-104
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AN AMENDED PROFESSIONAL
SERVICES AGREEMENT WITH JACKSON A&E ASSOCIATES, INC.,
AND OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City") has determined that the City
continues to require professional services relating to monitoring and managing the City's
numerous ongoing capital improvement projects on behalf of the City; and
WHEREAS, City staff has determined that Jackson A&E Associates, Inc. is uniquely
qualified to provide such services for the City; and
WHEREAS, pursuant to Section 252.022(a)(4), the City is not required to seek bids or
proposals with respect to a procurement for personal, professional, or planning purposes; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
amend the contract with Jackson A&E Associates, Inc. pursuant to the Professional Services
Agreement attached hereto as Exhibit A (the "Agreement").
THAT:
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Amendment to the Agreement with Jackson A&E Associates, Inc. in substantially the
form set forth on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be conshued and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or• the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
50445599.1
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 19'h day of November, 2012.
CITY OF TEXAS
Mayor
ATTEST:
~_ -
~Cly Secretary
(CITY SEAL)
Shcd8599.1
EXHIBIT A
AMENDED PROFESSIONAL SERVICES AGREEMENT
soa~as9ai A-1
JACKSON
City of Schertz, Texas-JA&E Proposal October I5, 201 I
Multiple Projects-Schertz, Texas Page I of 10
ASSOCIATES
October I5, 2012
Mr. John Kessel
City Manager
City of Schertz, Texas
1400 Schertz Parkway
Building 2
Schertz, Texaz 78154
RE: Proposal (or Owner's Representative Services
Dear Mr. Kessel:
Jackson A&E Associates, lnc. (JA&E) is pleased to submit this Proposal to perform Owner's
Representative Services for the City of Schertz, Texas. We appreciate the opportunity to provide our
professional services and look forward to working with the City of Schertz staff.
Presented below is our understanding of the proposed projects and the proposed scope of services, az
well az, information about the potential project schedule, fee structure, terms and conditions and
authorization documents.
PROJECT INFORMATION
The project consists of the provision of Owner's Representative Services (or tasks az directed by the
City of Schertz (City), Texas to assist in the design and construction process for the Aquatic Center,
Animal Adoption Center and Dog Park Facility and Athletic fields renovations and additions (Soccer and
Baseball).
The City will provide all information available regarding the project site and surrounding utilities,
including any details regarding road and infrastructure improvements necessary.
SCOPE OF SERVICES
The Total Scope o(Services for Owner's Representation Services for the three projects is proposed to
follow the three phases of activity az follows:
Phase I Selection of Delivery Method and Design/Construction Teams
Phase II Design Development/Construction Documents Preparation
Phase III Bidding Phase, Construction Monitoring Review and Contract Closeout
JACKSON
City o(Schertz, Texas -JA&E Proposal October I5, 201
/~ Multiple Projects-Schertz, Texaz Page 2 0! 10
ASSOCIATES
EXCLUDED SCOPE ITEMS
The following items are excluded from the Scope o(Services:
• Coordination o(the purchase and installation of furniture, fixtures and equipment and other
direct purchase vendors
• Post construction control and administration
• Facilitation of formal partnering with the entire project team throughout the project
• Coordination of any required formal dispute resolution in concert with City Attorney
• Participation in the development and implementation of a project commissioning plan
• Move management
ADDITIONAL SERVICES
Additional services for this project may be added to the Scope of Services by written scope and an
Agreem~ht Amendment.
SCHEDULE
Jackson A&E Associates, Inc. can begin work on these projects upon receipt of your written acceptance
o(this proposal and understands that the desired time frame for project initiation is immediate. The
total time frame anticipated to perform all phases of the Scope of Services is not known at this time. A
contract amendment is anticipated at the appropriate point in the future. The time frame anticipated to
perform the included Scope of Services is approximately 20 hours per week average for an estimated
twelve months. A secure office space and facility access will be provided by the City for JA&E's use and
storage of project plans and documentation.
PROFESSIONAL SERVICE FEES
The fee for JA&E's professional services on the Projects as described in this proposal is based upon the
information provided for the project, the Scope of Services only, the time frame anticipated, the
referenced terms and conditions, and is $9,000.00 per month with a not to exceed value of
$108,000.00 which does not include expenses.
Travel to and from Schertz, lodging, automobile rental, meals and parking costs shall be reimbursed at
the actual costs without markup. Reasonable telephone, postage and copying expenses are included.
One color paper copy and one electronic copy (in PDF format) of all correspondence and reports are
included. Other reimbursable expenses or direct costs attributable to the project required will be
billed in addition to these with no markup. Professional Liability Insurance cost shall be billed at the
actual cost plus ten percent.
Any additional professional services required beyond this scope will be billed at the rate of $ 135.00 per
hour. Professional services related to legal proceedings shall be billed at one and one-half times the
scheduled rate.
JACKSON
City o(Schertz, Texas-fA&E Proposal
Multiple Projects - Schertz, Texas
ASSOCIATES
PAYMENTS
October I5, 201 I
Page 3 of 10
City agrees to pay JA&E's invoice upon receipt. If payment is not received within 30 days from the
City's receipt of JA&E's invoice which is considered past due, City agrees to pay a service charge on the
past due amount at the greater of I % per month or the allowable legal rate, including reasonable
attorney's iees and expenses if collected through an attorney. After five days prior notice to City, JA&E
may suspend services until paid on any project where payment of invoiced amounts not reasonably in
dispute is not received byJA&E within 45 days of City's receipt of JA&E's invoice. City receipt of
invoice will be presumed one day after hand or email delivery.
SUMMARY
Jackson A&E Associates, Inc. understands your need (or Owner's Representative Services and is
committed to providing you responsive, effective and timely consulting services on this project.
To authorize this proposal, please return one signed copy of the Contract for our files. This proposal,
with the attached Terms and Conditions, will constitute the agreement for this project
Respectfully submitted,
Jackson A&E Associates, Inc.
~2,~...~---
Philip R Gaudreau, Assoc AIA, CSI
Managing Principal
JACKSON
ASSOCIATES
City of Schertz, Texas -JAKE Proposal
October I S, 201 I
Multiple Projects-Schertz, Texas Page 4 0('10
APPENDIX A
SCOPE OF SERVICES
OWNER REPRESENTATION SERVICES
I. PROFESSIONAL SERVICES PROCUREMENT, PROGRAMMING AND MASTER PLANNING
During the professional services procurement, we will:
A. Participate in discussions with representatives of the City of Schertz to refine the scope of
the project.
B. Meet with the City regarding the selection of a Design Professional Team for the project
and assist in the development of the Request (or Qualifications (RFQ) for Architects /
Engineers (A/E).
C. Present the team recommendations for design services to the City Council for their review
and approval.
D. Assist in the negotiation and contract preparation with the Architect (or these projects
including defining the scope of work.
E. We will assist in the appropriate consultant selection process, including quality control and
construction materials testing.
F. The need for specialty consultants will be evaluated for issues such as geotechnical
engineers, cost estimators, acoustical concerns, audio visual needs, security, furniture and
art, and then the consultants as needed will be selected.
G. Participate in discussions regarding various construction delivery methods for the project
and assist the project team in method selection.
H. Prepare Requests (or Proposals (RFP) for the construction delivery method chosen.
I. Assist the City in evaluating the responses received from the RFP.
J. Set up interviews, i(necessary, and assist the City in the selection of the Construction
Professionals.
K. Present the team recommendations (or Construction Professionals to the City Council for
their review and approval.
L. Assist in the negotiation and preparation of the contract for Construction Professionals.
JACKSON
City of Schertz, Texas - JA&E Proposal October I S, 201 I
Multiple Projetts -Schertz, Texas Page 5 of 10
ASSOCIATES
During the programming and master planning phase, we will:
M. Meet with representatives o(the City of Schertz and the Architect to continue to refine the
scope o(the project from a deparcmental inclusion, timing and priority approach.
N. ARer determining the final programming criteria, we will assist in refining the project plan.
O. Review and provide comments on previously commissioned studies and plans.
P. Arrange and attend meetings for the A/E team to interview the various departments
included to obtain initial programming and master planning data.
Q. Assist the A/E team in collecting data for the included departments existing systems and
equipment.
R. Review, provide comments and overviews of summarized information gathered.
S. During this phase of the project and others as required, we will prepare presentations for
and attend meetings with the City Manager's office and City Council.
II. DESIGN DEVELOPMENT AND CONSTRUCTION DOCUMENTS PREPARATION
During the documentation preparation phase, we will:
A. Conduct periodic meetings of the entire project team to address project status, issues and
concerns.
B. Review and analyze the drawings, budgets, meeting minutes and other descriptive material
produced.
C. Review geotechnical and environmental reports and advise the City on issues, potential
effects and risks to the project.
D. Review information produced applicable to local, state and federal codes and regulations,
including zoning, energy, handicap access, storm-water runoff, and others which typically
cause impact (or projects of the nature anticipated.
E. Provide design reviews and written comments as requested to the design team concerning
contract documents produced at applicable phases of the project.
F. Prepare a presentation to the City on the progress of the drawings, budgets and other
descriptive materials at the Schematic Design, Design Development and the completion of
Construction Documents.
G. During the course of the various design phases and after the bids for the project are
received, we will represent the owner during the value engineering process to aid in
achieving a balance between cost and the facility requirements.
J/A~CKSON
ASSOCIATES
City of Schertz, Texas -JA&E Proposal
October I5, 201 I
Multiple Projects-Schertz, Texas Page 6 of 10
III. BIDDING, CONSTRUCTION MONITORING AND CONTRACT CLOSEOUT
During the bidding phase, we will:
A. Work with the Construction Professionals in their prequalification process (or contractors
and subcontractors (or the project.
B. Assist in appropriate contractor and subcontractor selection process.
C. Review of potential bidders and assist in soliciting bids for the construction.
D. Work with the Construction Team to evaluate the bids for appropriate completeness based
on documentation presented.
E. Review all construction related costs (excluding soft costs) and provide an opinion as to its
adequacy and appropriateness in relation to industry standard costs. Opinion of Cost
Review will be conducted on information provided.
F. Review the construction progress schedule and form an opinion as to appropriateness of
the projected sequencing, duration of work items, and realism of the estimated Project
completion based on the scope of the Project and the current availability of both materials
and labor.
During the construction monitoring phase, we will:
G. Make scheduled weekly site review visits to the Project and such additional site review
visits, as directed by City, to observe the quality of workmanship, substantiation of costs in
place and the adequacy of balances complete, and the status of construction completion.
H. Review and provide additional information for construction reports submitted to those
interested parties that includes information concerning the description of obvious conflicts,
deficiencies and omissions between the construction observed in place and the contract
documents. In addition, outstanding defects or deviations noted in previous construction
reports will be described noting the correction or resolution, if any.
I. Report on the progress of the construction to date in relation to the Construction
Manager's projected construction schedule, noting concerns or issues with sequencing or
completion timing.
JACKSON
City of Schertz, Texas-JA&E Proposal October I5, 201 I
Multiple Projects-Schertz, Texaz page 7 of 10
ASSOCIATES
J. Review existing and ongoing soils, structural steel, concrete and other testing results (as
prepared by others) (or compliance with specification requirements and describe the effect,
i(any, upon the use of the structure in the event of a deficiency.
K. Notify the City of unsatisfactory work or plan deviations observed, and review and report
on corrective action taken.
L. Review the construction progress to date to determine that the work has been generally
accomplished in a good and workmanlike manner and is in general accordance with the
intent of the contract documents.
M. Provide quality, labeled, color or digital photographs, if desired, within the Construction
Report(s) to more explicitly relate to the observations described.
N. Review monthly reports and draw requests, as well as proposed changes in order to
provide opinion to City as to the appropriateness of the progress and request (or funds
with respect to percent complete of work items.
O. Review safety programs developed by the Construction Manager for the contractors and
subcontractors and note any deficiencies in the implementation o(such programs.
During the contract closeout phase and upon substantial completion of the Project, we will:
P. Assist in the creation of the City's punch list.
Q. Review the Architect's punch list identifying the remaining items necessary for correction
and completion of Contractor's work and evaluate whether said list is complete and
correct based on previous monthly observation, and see to the timely completion and
resolution of such items on the punch list.
R. Review applicable municipal or governmental ('anal sign-offs, which are provided to
consultant including, but not limited to, final certificates of occupancy.
K. Assist in the contract close out process.
JACKSON
ASSOCIATES
City of Schertz, Texas-JA$E Prol
October I5, 201 I
Multiple Projects - Schertz, Texaz page 8 of 10
JA&E TERMS AND CONDITIONS
Jackson A$E Associates, Inc. (JA$E) is pleased [o provide [he services described in [he foregoing proposal. The purpose of [his
document is to obtain your authorization for the work requested and the terms and conditions under which these services are
provided az shown on this document. Compensation for services rendered will be based on [he attached rate schedule (or az
otherwise indicated in the proposal which is a part of this work authorization.
I. SERVICES. Jackson A$E Associates, Inc., through and by its olficers, employees, and subcontractors, (hereinafter JA$E) is an
independent consultant and agrees to provide Client, for its sole benefit and exclusive use, consulting services set forth in our
proposal. No third parry beneficiaries are intended by this Agreement.
2. .PAYMENT TERMS. Client agrees to pay JA$E's invoice upon receipt. If payment is not received within 30 days from the
Client's receipt of JA$E's invoice which is considered paz[ due, Client agrees [o pay a service charge on the pas[ due amount a[ the
greater of I% per month or [he allowable legal rate.. After five days prior notice to Client, JA$E may suspend services until paid
on any project where payment of invoiced amounts no[ reasonably in dispute is not received by JA$E within 45 days of Client's
receipt of JA$E's invoice. Client receipt o(invoice will be presumed one day after'hand or email delivery by JA$E. Tme is of [he
essence o(this provision.
Either party may terminate this Agreement without cause upon 30 days prior written notice. This Agreement will terminate
automatically upon the insolvency of the Client. In the even[ Client requestr termination prior to completion of proposed
services, Client agrees to pay JA$E for all reasonable charges incurred to date and associated with termination of the work.
3. STANDARD OF CARE. JA$E will perform its services using that degree of care and skill ordinarily exercised under similar
conditions by reputable members of JA$E's profession practicing in the same or similar locality a[ the time of service. No other
warranty, express or implied, is made or intended by our proposal or by our oral or written reports.
4. INSURANCE. JA$E maintains insurance coverage az follows:
Worker's Compensation Insurance -statutory.
Employer's Liability Insurance - $1,000,000
Commercial General Liability Insurance - $1,000,000
Automobile Uability Insurance - $1,000,000
Excess Umbrella - $1,000,000
Professional Errors $ Omission - $1,000,000
PROFESSIONAL LIABILITY. For additional consideration from JA&E of $1.00, receipt of which is hereby
acknowledged, Client agrees that JA$E's liability, and that of Its officers, directors, employees, agents and
subcontractors, to Cllent or any third party due to any negligent professlonal acts, errors or omissions or breach of
contract 6y JA$E will be Ilmitedto an aggregate of $25,000. If Client prefers to have higher limits of professional liability,
JA$E agrees to try to inaeaze the aggregate limit, up to a maximum of $1,000,000, upon Cllen['s written request at [he time of
accepting our proposal, provided Client agrees [o pay an additional consideration of ten percent of JA$E's total charges, or $500,
whichever is greater. The additional charge for [he higher liability limit is because of [he greater risk assumed by JA$E and is not a
charge (or additional professional liability insurance. This limitation shall not apply to [he extent prohibited bylaw.
b. EXTENSION OF PROTECTION. Client agrees that any all limitations of JA$E's liability and indemni0cations by the Cllent to
fA$E shall include and extend [o those individuals and entities JA$E retains !or performance of [he services under this Agreement,
including but no[ limited to JA$E's ofOcers, partners and employees and their heirs and assigns, az well az JA$E's subconsulmntr
and their o(Ocers, employees, heirs and assigns.
7. CORPORATE PROTECTION. I[ is intended by the patties to [his Agreement [ha[ JA$E's services shall not subject JA$E's
individual employees, officers, directors, managers or partners to any personal legal exposure for the risks associated with the
services. Therefore, and notwithstanding anything [o the contrary herein, Client agrees [hat as [he Client's sole and exclusive
remedy, any claim, demand or suit shall be directed and/or asserted only against fA$E, a Texas Corporation, and no[ against any of
JA$E's individual employees officers, directors, managers or partners.
0. SITE OPERATIONS. Client will arrange (or right-ol-entry [o [he property for the purpose of performing project management,
studies, tests and evaluations pursuant to the agreed services. Client represents [ha[ it possesses necessary permitr and licenses
required for its activities at [he site.
JA$E is no[ responsible for any damage or loss due to undisclosed or unknown surface or subsurface conditions owned by Client
or third parties, except [o the extent such damage or loss is a result of JA$E's negligence. Otherwise, Cllent agrees for the
additional consideration of $1.00, receipt of which is hereby acknowledged, [o [he eaten[ permitted by law, to indemnify JA$E, its
officers, directors, employees, agentr and subcontractors, from any such claim, suitr or losses, including related reazonable
attorney's fees.
JACKSON
ASSOCIATES
City of Schertz, Texaz - JA&E Proposal
October 15, 2011
Multiple Projects - Schertz, Texas
Page 9 of 10
JA&E will take reazonable precautions to minimize damage to the property caused by our operations. Unless otherwise stated in
JA&E's proposal, our charges do no[ include cos[ of restoration due to any related damage which may result. If Client requests
JA&E to repair such damage, JA&E will do so at an appropriate additional cost.
9. FIELD REPRESENTATIVE. The presence of JA&E's or its subcontractor s field personnel, either full-time or part-time, may be
for [he purposes of providing project administration, assessment, observation and/or field testing o(specific aspects of the project
as authorized by Client. Should a contractor(s) no[ retained by JA&E be involved in the project, Cllen[ will advise such
contractor(s) that JA&E's services do not include supervision or direction of the means, methods or actual work of the
contractor(s), its employees or agents. Client will also inform contractor that the presence of JA&E's field representative will no[
relieve the contractor o(its responsibilities for performing the work in accordance with its agreement with Client.
If a contractor (not a subcontractor of JA&E) is involved in [he project, Client agrees, in accordance with generally accepted
construction practices, [hat the contractor will be solely and completely responsible (or working condition on the job site,
including security and safety of all persons and property during performance of the work, and compliance with all Client safety
requirements and OSHA regulations. These requirements will apply continuously and will not be limited [o normal working hours.
I[ is agreed Chat JA&E will not be responsible for job or site safety or security on the project, other than for JA&E's employees and
subcontractors, and tha[JA&E does no[ have the duty or right to stop the work o(the contractor.
10. UNFORESEEN CONDITIONS OR OCCURRENCES. It is possible that unforeseen conditions or occurrences may be
encountered at [he site which could substantially alter the necessary services or the risks involved in completing JA&E's services. I(
this occurs, JA&E will suspend services and promptly notify and consult with Client, but will act based on )A&E's sole judgment
where risk [o JA&E personnel is involved. Possible actions could include:
a) Complete [he original Scope of Services in accordance with the procedures originally intended in our proposal, ii practical in
JA&E's judgment;
b) Agree with Client to modify the Scope of Services and the estimate of charges to include study of the unforeseen conditions
or occurrences, with such revision agreed [o in writing;
c) Terminate the services effective on [he date specified byfA&E in writing.
I I. DOCUMENTS. JA&E will furnish Client the agreed upon number of documents and supporting information. These instruments
of service are furnished (or Client's exclusive internal use and reliance, use of Client's counsel, use o(Cllent's qualiOed bidders and
for regulatory submittal in connection with [he proposed services provided (or in this Agreement, but not for advertising or other
type o(distribution, and are subject [o [he following:
a) All documents generated by JA&E under [his Agreement shall remain [he sole property of JA&E. JA&E shall retain all
common law, statutory and other reserved rights, including [he copyright [hereto. Any unauthorized use or distribution of
fA&E's work shall be a[ Client's and recipient's sole risk and without liability to JA&E. fA&E may retain a <onOdential Ole copy
o(its work product and related documents.
b) If Client desires to release, or for JA&E to provide, our work product(s) [o a third party not described above for [ha[ party's
reliance, JA&E will agree [o such release provided we receive written acceptance from such third party [o be bound by
acceptable terms and conditions similar to this Agreement (e.g. Secondary Client Agreement). Work product(s) provided for
disclosure of information only will no[ require separate agreement. Client acknowledges and agrees to inform such third
party that JA&E's work product(s) re0etts conditions only a[ the time of the study and may not re0ec[ conditions at a later
time. Client further acknowledges that such request for release creates a potential conflict of interest for JA&E and by this
request waives any such claim should JA&E comply with [he request.
c) Client agrees that all documents furnished [o Client or Cllen['s agents or designees, if not paid (or, will 6e returned upon
demand and will not be used by Client or any other entity for any purpose whatsoever. Client further agrees that documents
provided by fA&E pursuant [o [his Agreement will not be used for any project not expressly provided for in this Agreement
without f A&E's prior written approval.
d) Client shall furnish documents or information reazonahly within Client's control and deemed necessary byfA&E for proper
performance of our services. JA&E may rely upon Cllen[-provided documents in performing [he services under this
Agreement; however, JA&E assumes no responsibility or liability for their a«uracy. Client-provided documents will remain
the property of Client, but JA&E may retain one confidential file copy az needed to support our work product.
12. CLAIMS. The parties agree to attempt to resolve any dispute without resort to litigation, including use o(non-binding mediation,
prior [o filing o(any suit. However, in the event a claim results in litigation, and the claimant does no[ prevail a[ trial, then the
claimant shall pay all costs incurred in pursuing and defending the claim, including reazonable attorney's fees.
13. OPINIONS OF COST. If requested, JA&E will use its best efforts and experience on similar projects [o provide realistic opinions
of probable costs (or remediation, repair or construction az appropriate based on reasonably available data or JA&E's
recommendations. However, such opinions are intended primarily to provide information on the order of magnitude or scale of
such costs and are not intended (or use in firm budgeting or negotiation unless specifically agreed otherwise in writing by JA&E.
Client understands actual costs of such work depend heavily on regional economic, local construttion practices, material
JACKSON
ASSOCIATES
City of Schertz, Texas -JA$E Proposal October I5, 201 I
Multiple Projects - Schertz, Texas
Page 100( 10
availability, site conditions, weather conditions, contractor skills, and many other factors beyond JA$E's control. JA$E makes no
warranty, express or implied, that bids or negotiated costs of such work will no[ vary from fA$E's opinions of probable costs.
14. TESTIMONY. Should JA$E or anyfA$E employee be compelled by law [o provide testimony or other evidence by any party,
whether at deposition, hearing or trial, in relation to services provided under this Agreement, and JA$E is no[ a party in the
dispute, then JA$E shall be compensated by Client for [he associated reazonable expenses and labor for JA$E's preparations and
testimony at appropriate unit rates.
I5. CONFIDENTIALITY. fA$E will maintain as conOden[ial any documents or information provided by Client and will no[ release,
distribute or publish same [o any third party without prior permission lrom Client, unless compelled by law or order of a court or
regulatory body of competent jurisdiction. Such releaze will occur only after prior notice to Client.
16. GOVERNING LAW, This Agreement shall be governed in all respects by [he laws of the State of Texas.
17. SURVIVAL. All provisions of this Agreement for indemnity or allocation of responsibility or liability between Client and JA$E
shall survive [he completion o([he services and the termination of this Agreement.
18. SEVERABILITY. In the even[ that any provision of this Agreement is found to be unenforceable under law, [he remaining
provisions shall continue in full force and effect.
19. ASSIGNMENT. This Agreement may not be assigned by either party without the prior permission of [he other.
20. CONSIDERATION. The parties agree [ha[ the charges for JA$E's services are sufficiently adjusted to include any specific
consideration payable to Client under these terms and conditions.
21. INTEGRATION. This Agreement, [he attached documents and those incorporated by reference herein constitute [he entire
Agreement between the parties and cannot be changed except by a written instrument signed by both parties.
22. STATUTES OF REPOSE AND LIMITATION. All legal causes of attion between the parries to this Agreement shall accrue and
any applicable statutes of repose or limitation shall begin [o run no[ later than the date that JA$E's services are completed or
terminated.
23. CLIENT DISCLOSURE. Client agrees to advise JA$E upon execution of this Agreement of any hazardous substance or any wndition,
known or that reasonably should be known by Client, existing in, on, or near the site that presents a potential danger to human health, the
ervironment, or JA$E's equipment Client agrees ro provide JA$E continuing related information az h becomes available to the Client.
By virtue of en[edng into this Agreement or providing services hereunder, fA$E does no[ assume contra of or responsibility az an
operator or otherwise for the site or the person(s) in charge of [he site, or undertake responsibility for reporting to any Iedeml, state or
kcal public agencies arty conditions at the site that may present a potential danger to public health, safety or the environment. Client
agrees under advice of its counsel to notify the appropriate lederal, state or loml public agencies as required by law; or otherwise [o
disclose, in a timely manner, any information that may be necessary [o prevent damage to human health, safety, or the environment.
24. ENVIRONMENTAL INDEMNITY. In connection with toxic or hazardous substances or consdments, including but no[ limited [o
mold, and to the maximum extent permitted by law, Client agrees to defend, had harmless, and indemnifyJA$E from and against any and
all claims, liahilities, or judgments, except [o the extent finally determined az being caused by fA$E's negligence or willful misconduct,
resulting from:
a) Client's violafion of arty federal, state, or local stam[e, regulation, or ordinance relating [o [he management or disposal of toxic
or hazardous substances or consdtuents;
b) Clients undertaking of or arrangement for the handling, removal, treatment, storage, transportation, or disposal of toxic or
hazardous substances or wnsti[uents found or identified a[ the site;
c) Toxic ar hazardous substances or cortstimen[s introduced at the site by Client or third persons before, during, or after the
completion of JA$E's services;
d) Allegations that JA$E is a handler, generator operator, treater, sorer, transporter, or disposer unless expressly retained by
Client for such services under the Resource Conservation and Recovery Att of 1976 as amended or arty other similar federal,
state or local regulation, ordinance, or law due [o JA$E's services;
e) A release of toxic or hazardous substances or constituents a[ or from the projett site before, during, or after completion of
JA$E's services under this Agreement. Any third party suR a claim (or damages against JA$E alleging stritt liability, personal
injury (including death) or property damage from exposure.
25. SAMPLE DISPOSAL Test specimens or samples generally are consumed or subsrarttially altered during testing and any remnants are
disposed of immediately upon compledon of tests. Remaining samples and other specimens are disposed of 30 days after submission of
JA$E's report.
END OF JA$E TERMS AND CONDITIONS
JACKSON
City of Schertz, Texas-JA&E Proposal October 15, 2011
_I Multiple Projects - Schertz, Texas Page I I of 10
ASSOCIATES -
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (this "Agreement"), effective as of November 1 S,
2011 (the "Effective Date"), is between the City of Schertz, Texas (the "City") and Jackson A&E
Associates, Inc., a Texas corporation (the "Contractor").
WHEREAS, the City desires that the Contractor provide certain monitoring and
management services concerning the City's numerous ongoing capital improvement projects;
WHEREAS, the City and the Contractor have determined to enter into this Agreement
re]ating to the provision of the Contractor's services and to set out the terms, rights, duties, and
responsibilities of the City and the Contractor with respect thereto;
NOW, THEREFORE, in consideration of the foregoing and the agreements contained
herein, the City and the Contractor agree as follows:
Section 1.1. Services to be Provided by the Contractor.
(a) The Contractor will perform construction monitoring and management
services for the City relating to the City's capital improvements program activities as described
on Attachment 1.
(b) The Contractor's Services hereunder will primarily be rendered at the
City's Public Works Department located at 10 Commercial Place, Schertz, Texas 78154 and the
City's administrative offices located at 1400 Schertz Parkway, Schertz, Texas 78154.
(c) The City and the Contractor agree that the Contractor is an independent
contractor and not an agent or employee of the City, and the Contractor shall not be under the
general direction, control, or supervision of the City except to the extent that the City may be
required by law to exercise certain supervision over services provided for the City. The City will
not impose duties or constraints of any kind on the Contractor that would make the Contractor an
employee or agent of the City. The City and the Contractor agree that their relationship arising
from this Agreement does not constitute a general agency, joint venture, partnership,
employment relationship, or franchise between them.
(d) The Contractor acknowledges that he will control the conduct and means
of performing the services required under this Agreement. The Contractor will provide all of the
services himself or will utilize his own employees or his own independent contractors. The
Contractor agrees to adhere to all appropriate professional standards, including the maintenance
of all licenses and permits required by law for any of the services to be performed by him, and to
complete all work in a timely manner.
(e) The Contractor shall be solely responsible (i) for all wages and benefits
and contractual payments owing to his employees and independent contractors, if any, (ii) for all
withholding and all other obligations with respect to all federal or state taxes relating to such
persons and to himself, and (iii) compliance with all federal, state, and local laws resulting from
his legal relationship with such persons, if any. The Contractor agrees that the City will have no
responsibility or obligation for or with respect to any such matters.
(f) The Contractor warrants that he will provide all required workers
compensation coverage to all persons employed by him in delivering the services.
Section 1.2. Primary Contacts. The City Manager or his designee shall be the City's
primary contact for the Contractor, and Philip Gaudreau shall be the Contractor's primary
contact for the City.
Section 1.3. Comroensation. In consideration of the services provided by the
Contractor, the City will pay the Contractor as set forth in Attachment 1. It is anticipated that the
Contractor will work up to a total of approximately twenty (20) howl per calendar week, but the
Contractor and the City may vazy the anticipated weekly time as they jointly feel appropriate, to
accomplish the tasks described in Section 1.1(a). Payments shall be made within five (5)
business days of the date that Contractor invoices the City for his services hereunder. The
Contractor agrees that amounts payable to the Contractor are payable solely from then available
current revenues of the City. The Contractor will not be eligible to receive any City benefits, and
the City will not be responsible for any tax withholding for the Contractor.
Section 1.4. Term. This Agreement shall be for a term commencing on the Effective
Date and continuing for a period of twelve (12) months. This Agreement may be extended for
the same rate and under the same terms for a period of up to six (6) additional months upon the
written agreement of the parties. This Agreement may be terminated by either parry with thirty
(30) days written notice to the other parry. This Agreement may be renewed, extended, or
modified by written agreement of the parties.
Section 1.5. Approvals or Consents. Whenever this Agreement requires or permits
approvals or consents to be hereafter given by any party hereto; such parties agree that such
approval or consent shall not be unreasonably withheld. Such approval or consent shall be given
in writing and shall be effective without regard to whether given before the time required herein.
Section 1.6. died Waiver. The failure of either party hereto to insist, in any one or
more instances, upon performance of any of the terms, covenants, or conditions of this
Agreement shall not be construed as a waiver of relinquishment of the future performance of any
such term, covenant or condition by the other party hereto, but the obligation of such other party
with respect to such fuhu~e performance shall continue in full force and effect.
Section 1.7. Notice. Any notices contemplated under this Agreement shall be deemed
effectively given when personally delivered or received through United States certified mail
posted to the noticed pazry at its address set forth- below or the last-known post office address,
unless other addresses have been designated by written notice:
If to the City: Ciry of Schertz, Texas
1400 Schertz Pazkway
Schertz, TX 78154
Attn: John Kessel
50455819.2
with a copy to: Fulbright & 7aworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, TX 78205
Attn: Michael Spain
If to Contractor: .Tackson A&E Associates, Inc.
6506 Autumnwood Drive
Frisco, TX 75035
Attn: Philip R. Gaudreau
Section 1.8. Severability. The provisions of this Agreement are severable, and if any
word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the
application thereof to any person or circumstance shall ever be held by any court of competent
jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and
the application of such work, phrase, clause, sentence, paragraph, section or other part of this
Agreement to the other persons or circumstances shall not be affected thereby.
Section 1.9. Mer er. This Agreement constitutes the entire agreement between the
parties relative to the subject matter hereof. There have been and are no agreements, covenants,
representations, or warranties between the parties as to the subject matter hereof other than those
expressly stated or provided for herein.
Section 1.10. Cooueration. Each party hereby agrees that it will take all actions and
execute all documents necessary to fully.carry out the purpose and intent of this Agreement.
Section 1.11. Govemine Law and Venue. This Agreement is governed by the laws of
the State of Texas, and the parties agree that venue shall be in the cow-ts of Guadalupe County,
Texas.
Section 1.12. Counterparts. This Agreement may be executed in multiple counterparts
but will be considered as a single instrument when it has been finally executed by all of the
parties.
[The remainder of this page intentionally left blank.]
50455819.2
IN WITNESS WHEREOF, the undersigned have entered into this Professional Services
Agreement, effective as of the date first above written.
CITY OF SCHERTZ, TEXAS
By:
o C.1 sel, City Manager
~ ZItL~~Z
JACKSON A&E ASSOCIATES, NC, l
By:
Phil R. Gau reau, Managing i~rtaipal ~~~
~-
1 Z~+} ~ Z.m I Z.
50455819.2