2011-R-54 - Professional Services - Jackson A&E Associates IncRESOLUTION NO. ll-R-S4
A RESOLUTION BX THE CITY COUNCII, OTC THE CITY OF
SCIHaItTZ, TEXAS AUTHORIZING A PROFESSIONAL SERVICES
AGREElVIENT WITH JACKSON A&E ASSOCIATES, INC., AND OTHER
MATTERS IN COI~INECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City") has determined that the City
requires professional services relating to monitoring and managing the City's numerous ongoing
capi#aI improvement proj ects 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 Ciry; and
WHEREAS, pursuant to Section 252A22(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
contract with Jackson A&E Associates, Inc. pursuant to the Professional Se1-vices Agreement
attached hereto as Exhibit A (the "Agreement").
BE IT RESOLVED BY THE CITY COUNCIL OF Tt=IE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Jackson A&E Associates, Inc. in substantially the form set for•ih 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 pwposes 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any provision of this Resolution are hereby repealed to the extent of such conflict, and the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 ~1. This Resolution shall be construed 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
Conned hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, deteiYnined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the tune, place, and subject
5 p948599.1
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 8~h day of November, 2011.
CITY OF SC ERT TEXAS
Mayor
ATTEST:
City Secretary
(CITY SEAL)
50446594.1
EXHIBIT A
PROFE55IONAII SERVICES AGREEMEiVT
soa~ssh9.i A-1
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (this "Agreement"}, effective as of November 15,
2011 (the "Effective Date"), is between the City of Schertz, Texas (the "City") and Jackson A&E
Associates, Tnc., a Texas coiforation (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
relating 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 b 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 Canh•actor 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
fi•am 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 awn 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 pez-sons employed by him in delivering the services.
Section 1.2. Primary Contacts. The City Manager or his designee shall be the City's
primacy contact for the Contractor, and Philip Gaudreau shall be the Contractor's primary
contact far the City.
Section 1.3. Com ensation. In consideration of the services provided by the
Contractor, the City will pay the Contractor as set Earth in Attaclunent 1. It is anticipated that the
Contractor will work up to a total of approximately twenty (20) hours per calendar week, but the
Contractor and the City may vary flee 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 6e 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 party with thirty
(30) days written notice to the other party. This Agreement may be renewed, extended, ar
modified by written agreement of the parties.
Section 1.5. A royals 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. Implied 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 firture performance shall continue in fiill 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 party 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: City of Schertz, Texas
1400 Schertz Parkway
Schertz, TX 78154
Attn: John Kessel
so=~sssi~.z 2
with a copy to: Fulbright & Jaworski L.L.P,
300 Convent Street, Suite 2200
San Antonio, TX 78205
Attn: Michael Spain
if to Contractor: Jackson 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, please, 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, please, 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 constih~tes 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. Cooperation. Each party hereby agrees that it will take all actions and
execute all documents necessary to fully cai7•y out the purpose and intent of this Agreement.
Section 1.11. Govei7iin 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 courts of Guadalupe County,
Texas.
Section 1.12. Counter amts. This Agreement may be executed in multiple counterparts
but will be considered as a single instrument when it has been finally executed 6y all of the
parties.
[The 1•elr7rrinder of lhis page ir-tentionally left blank. ]
SO~E558 ~ 9.2
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:
Jo essel, City Manager
JACKSON A&E ASSOCIATES, INC.
By:
Ph R. Gaudreau, Managing Principal
5{}455819.2 4.
ATTACHMENT 1
JACKSf~N
~.
ASSQCIATES
JACKSON A&E ASSOCIATES, INC,
Architectural and Engineering Consulting • 6506 Autumnwood Drive • Frisco, Texas 75095 •214.673-7557 • Fax 972-666-84]9 • www.JacksonAf.com
October 20, 201 1
Mr. John Kessel
City Manager
City of Schertz, Texas
1400 Schertz Parkway
Building 2
Schertz, Texas 78154
RE: Proposal for Owner's Representative Services
Dear Mr. Kessel:
Jackson A&E Associates, Inc. (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, as
well as, 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 for tasks as directed by the
City of Schertz (City), Texas to assist in the design and construction process for the Aquatic Center,
Dog Park and Holding Facility and Soccer field renovations.
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 of Services for Owner's Representation Services for the three projects is proposed to
follow the three phases of activity as follows:
Phase I Selection of Delivery Method and DesignlConstruction Teams
Phase II Design Development~Construction Documents Preparation
Phase 111 Bidding Phase, Construction Monitoring Review and Contract Closeout
Additionally as time permits, work with City Staff to develop Master Specifications for the City's future
use
JACKSON
~} ~ City of Schertz, Texas - JA&E Proposal October 10, 201
. ~''~ ~ Multiple Projects -Schertz, Texas Page 2 of 10
ASSOCIATES
EXCLUDED SCOPE ITEMS
The following items are excluded from the Scope of Services:
• Coordination of 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
Agreement Amendment.
SCHEDULE
Jackson A&E Associates, inc. can begin work on these projects upon receipt of your written acceptance
of 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 wil! 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 $7,854.00 per month with a not to exceed value of $44,250.00
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 $ 130.00 per
hour. Professional services related to legal proceedings shall be billed at one and one-half times the
scheduled rate.
JACKSON
~} ~
~E ~
ASSOCIATES
City of Schertz, Texas -- JA&~ Proposal
October ID, 201
Multiple Projects - Schertz, Texas
PAYMENTS
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&l;'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 fees 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 by JA&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&~ Associates, Inc. understands your need for 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.
Philip R Gaudreau, Assoc AIA, CSI
Managing Principal
JACKSOEV
.~
ASSOQAT~S
City of Schertz, Texas - JAa~ Proposal
October 10, 201 I
Multiple Projetts -Schertz, Texas Page 4 of I 0
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 for 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 for 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 for Proposals (RFP) for the construction delivery method chosen.
I. Assist the City in evaluating the responses received from the RFP.
J. Set up interviews, if necessary, and assist the City in the selection of the Construction
Professionals.
K. Present the team recommendations for 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
_~ ~ `~;
~~ 4 L
ASSOGATES
City of Schertz, Texas - JA&E Proposal
October 10, 20! I
Multiple Projects -Schertz, Texas
During the programming and master planning phase, we will:
Page 5 of f 0
M. Meet with representatives of the City of Schertz and the Architect to continue to refine the
scope of the project from a departmental inclusion, timing and priority approach.
N. After 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 AIE 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 for 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.
Jl1CKSON
€, ? ~;
ASSOCIATES
City of Schertz, Texas - JA&E Proposal
October 10, 201 I
Multiple Projects - Schertz, 'T'exas 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 for contractors
and subcontractors for 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 sett 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.
1. 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.
JACKSC7N
r j i,
'~
ASSOCIATES
City of 5chertz, Texas - JA&~ proposal
October i0, 201 I
Multiple Projects - Schertz, Texas
Page 7 of I 0
J. Review existing and ongoing soils, structural steel, concrete and other testing results {as
prepared by others) for compliance with specification requirements and describe the effect,
if 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.
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 for 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 of 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 final 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
~~ f
ASSOCIATES
City of 5chertz, Toxas -JA&E proposal October 10, 201 I
Multiple projects - 5chertz, Texas
Page 8 of 10
JA&E TERMS AND CONDITIONS
Jackson A$E Associates, Inc. QA$E) is pleased to provide the services described in the Foregoing proposal. The purpose of this
document is to obtain your authorization for the work requested and the terms and conditions under which these services are
provided as shown on this document. Compensation for services rendered will be based on the attached rate schedule (or as
otherwise indicated in the proposal) which is a part of this work authorization.
I. SERVICES. Jackson A$E Associates, Inc., through and by its officers, employees, and subcontractors, (hereinafter JA&E) is an
independent consultant and agrees to provide Client, for its sole benefit and exclusive use, consuhing services set forth in our
proposal. No third party hene0claries are Intended by this Agreement.
2. PAYMENT TERMS. Client agrees to pay JA&E's Invoice upon receipt. If payment Is not received within 30 days from the
Client's receipt of JA$E's Invoice which Is considered past due, Client agrees to pay a service charge on the past due amount at the
greater of I % per month or the allowable legal rate.. After five days prior notice to Client, JA$E may suspend services until paid
on any project where payment of Invoiced amounts not reasonably In dispute Is not received by JA&E within 45 days of Client's
receipt of JA&E's invoice. Client receipt of invoice will be presumed one day after hand or email delivery by JA&E. Time is of the
essence of this provision.
Either parry may terminate this Agreement without cause upon 30 days prior written notice. This Agreement will terminate
automatically upon the insolvency of the Client. In the event C11ent requests termination prior to completion of proposed
services, Client agrees to pay JA$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 ]A&E's profession practicing in the same or similar locality at 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 as [ollows:
Worker's Compensation Insurance -statutory.
Employer's Liability Insurance - $1,000,000
Commercial Goneral Liability Insurance - $1,000,000
Automobile Liability Insuranco - $!,600,000
Excess Umbrella - $1,000,000
professional Errors & Omission - $1,000,000
5. 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 Client or any third party due to any negligent professional acts, orrors or omissions or breach of
contract by tIA&E will be Itmlted to an aggregate oT $25,040. If Client prefers to have higher limits of prolessional liability,
JA$E agrees to try to increase the aggregate limit, up to a maximum of $1,004,000, upon Client's written request at the time of
accepting our proposal, provided Client agrees to pay an additional consideration of ten percent of JA$E's total charges, or $504,
whichever Is greater. The additional chargo for the higher liability limit is because of the greater risk assumed by JA$E and is not a
charge for additional professional liability insurance. This limitation shall not apply to the extent prohibited by law.
6. EXTENSION OF PROTECTION. Client agrees that any all limitations of JA$E's liability and Indemnifications by the Client to
JA$E shall Include and extend to those individuals and entities JA$E retains for performance of the services under Chls Agreement,
Including but not limited to JA&E's officers, partners and employees and their heirs and assigns, as well as JA$E's subconsultants
and their officers, employees, heirs and assigns.
7. CORPORATE PROTEGTION. It Is Intended by the parties to this Agreement that JA&E's services shall not subject JA$E's
Individual employees, officers, directors, managers or partners to any personal legal exposure for the risks associated with the
services. Therefore, and notwithstanding anything to the contrary herein, Client agrees that as the Client's sole and exclusive
remedy, any claim, demand or suit shall be directed and/or asserted only against JA&E, a Texas Corporation, and not against any of
JA&E's individual employees officers, directors, managers or partners.
8. SITE OPERATIONS. Client will arrange far right-of--entry to the property for the purpose of performing protect management,
studies, tests and evaluations pursuant to the agreed services. Client represents that It possesses necessary permits and licenses
required for Its activities at the site.
JA&E Is not responsible For any damage or loss due to undisclosed or unknown surface or subsurface conditions owned by Client
or third parties, except to rho extent such damage or loss 1s a result of JA$E's negligence. Ohherwiso, Client agrees for the
additional consideration of $1.00, receipt of which Is hereby acknowledged, to Che extent permitted by law, to Indemnify JA$E, its
officers, directors, employees, agents and subcontractors, from any such claim, suits or fosses, Including related reasonable
attorney's fees.
JACKSON
~' i ~ City of Schertz, Texas --)A&E Proposal
~f_.. 'T'"~ Multiple Projects --Schertz, Texas
ASSOCIATES
October 10, 201 I
Page 9 of 10
JA&E will take reasonable precautions to minimize damage to the property caused by our operations. Unless otherwise stated in
JA&E's proposal, our charges do not Include cost 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 Reld personnel, either full-time or part-time, maybe
for the purposes of providing project administration, assessment, observation andfor field testing of speciilc aspects of the project
as authorized 6y Client. Should a contractor{s) not retained by JA&E be Involved in the project, Client 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 Reld representative will not
relieve the contractor of its responsibilities for performing the work in accordance with its agreement with Client.
If a contractor (not a subcontractor of JA&E) is involved fn the project, Client agrees, In accordance with generally accepted
construction practices, that the contractor will 6e solely and completely responsible for 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 to normal working hours.
ft is agreed that JA&E will not 6e responsible !or job or site safety or security on the project, other than for JA&E's employees and
subcontractors, and that JA&E does not have the duty or right to stop the work of the contractor.
10. UNFORESEEN CONDITIONS OR OCCURRENCES. It Is possible that unforeseen conditions or occurrences may be
encountered at the site which could substantially alter the necessary services or the risks involved in completing JA&E's services. 1f
this occurs, JA&E will suspend services and promptly notify and consult with Client, but will act based on JA&E's sole ]udgment
where risk to JA&E personnel Is Involved. Possible actions could Include:
a) Complete the original Scope of Services In accordance with the procedures originally intended In our proposal, if 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 to in writing;
c) Terminate the services effective on the date specified by JA&E in writing.
I I. DOCUMENTS. JA&E will furnish Client the agreed upon number of documents and supporting Information. Theso instruments
of service are furnished for Client's exclusive internal use and reliance, use of Client's counsel, use of Client's qualified bidders and
for regulatory submittal in connection with Che proposed services provided for In this Agreement, but not for advertising or other
type of distribution, and are subject to the following:
a) All documents generated 6y JA&E under this Agreement shall remain the sole property of JA&E. JA&E shal{ retain all
common law, statutory and other reserved rights, Including the copyright thereto. Any unauthorized use or distribution of
JA&E's work shall 6e at Client's and recipient's sole risk and without liability to JA&E. JA&E may retain a confrdential fife copy
of its work product and related documents.
b) if Client desires to release, or for JA&E to provide, our work product(s) to a third party not described above for that party's
reliance, JA&E will agree to such release provided we receive written acceptance from such third party to be bound by
acceptable terms and conditions similar to this Agreement (e.g. Secondary Client Agreement). Work products} provided for
disclosure of Information only will not require separate agreement. Client acknowledges and agrees to Inform such third
party that JA&E's work product{s} reRects conditions onEy at the time of the study and may not relfect 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 the request.
c) Client agrees that all documents furnished to Client or Client's agents or designees, if not paid for, will be 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 JA&E pursuant to this Agreement will not be used for any protect not expressly provided far In this Agreement
without JA&E's prior written approval.
d) Client shall furnish documents or Information reasonably within Client's control and deemed necessary by JA&E for proper
performance of our services. jAl£E may rely upon Client-provided documents in performing the services under this
Agreement; however, JA&E assumes no responsibility or liability for their accuracy. Client-provided documents will remain
the property of Client, but JA&E may retain one confidential file copy as needed to support our work product.
i 2. CLAIMS. The parties agree to attempt to resolve any dispute without resort to litigation, including use ofnon-binding mediation,
prior to filing of any suit. However, In the event a claim results in litigation, and the claimant does not prevail at trial, then the
claimant shall pay all costs incurred In pursuing and defending the claim, including reasonable attorney's fees.
13. OPINIONS OF COST. If requested, JA&E will use its best efforts and experience on similar protects to provide realistic opinions
of probable costs for remediation, repair or construction as 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 for 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 economics, local construction practices, material
JACKSON
(} ~ City of Schertz, Texas - JA&E Proposal
t
~~, ~`- Multiple Projects -Schertz, Texas
ASSOCIATES
October 10, 201
Page 10 of 10
availability, site conditions, weather conditions, contractor skltls, 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 not vary from JA&E's opinions of probable costs.
14. TESTIMONY. Should JA&E or any JA&E employee be compelled by law to protide 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 not a party in the
dispute, then JA&E shall be compensated by Client for the associated reasonable expenses and labor for JA&E's preparations and
testimony at appropriate unit rates.
I5. CONFIDENTIALITY. JA&E will maintain as confrdential any documents or information provided by Client and will not release,
distribute or publish same to any third party without prior permission from Client, unless compelled 6y law or order of a court or
regulatory body of competent Jurisdiction. Such release will occur only after prior notice to Client.
Ib. GOVERNING LAW. This Agreement shall be governed in all respects by the 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 the completion of the services and the termination of this Agreement.
If3. SEVERABILITY. In the event that any provision of this Agreement is Found to be unenforceable under law, the remaining
provisions shall continue In full force and effect.
19. ASSIGNMENT. This Agreement may not 6e assigned by either party without the prior permission of the other.
20. CONSIDERATION. The parties agree that the charges for JA&E's services are sufficiently adjusted to Include any specific
canslderation payable to Client under these terms and conditions.
21. INTEGRATION, This Agreement, the attached documents and those Incorporated by reference herein constitute the 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 action between the parties to this Agreement shall accrue and
any applicable statutes of repose or limitation shall begin to run not 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 thls.t{greement of any hazardous substance or any condition,
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
environment, or JA&E's equipment. Client agrees to provide JA&E continuing related information as it becomes available to the Client.
fay virtue of entering Into this Agreement or providing services hereunder, JA&E does not assume control of or responsibility as an
operator or otherwise for the site or the person(s) ]n charge of the site, or undertake responsibility for reporting to any federal, state or
local public agencies any conditions at the site that may present a potential danger to public health, safety or the envrronment. Client
agrees under advice of itr counsel to notify the appropriate federal, state or local public agencies as required by law, or otherwise to
disclose, in a timely manner, any information that may be necessary to prevent damage to human health, safety, or the environment.
24. ENVIRONMENTAL INDEMNITY. In connection with toxic or hazardous substances or constituents, including but not limited to
mold, and to the maximum extent permitted by law, Client agrees to defend, hold harmless, and indemnify JA&E from and against any and
all claims, liabilities, or ]udgments, except to the extent finally determined as being caused by JA&E's negligence or willful misconduct,
resulting from:
a} Client's violation of any federal, state, or local statute, regulation, or ordinance relating to the management or disposal of toxic
or hazardous substances or constituents;
6) Client's undertaking of or arrangement for Che handling, removal, treatment, storage, transportation, or disposal of toxic or
hazardous substances or constituents found or Identified at the site;
c) Toxic or hazardous substances or constituents 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, Storer, transporter, or disposer unless expressly retained by
Client for such services under the Resource Conservation and Recovery Act of 1976 as amended or any other similar federal,
state or local regulation, ordinanco, or lawdue to JA&E's services;
e) A release of toxic or hazardous substances or constituents at or from the project site before, during, or after completion of
JA$E's services under this Agreement. Any third party suit or claim for damages against JA&E alleging slritt liability, personal
Injury (including death) or property damage from exposure.
25, SAMPLE bISPOSAL. Test specimens or samples genera]ly are consumed or substantially altered during testing and any remnants are
disposed of immediately upon completion of tests. Remaining samples and other specimens are disposed of 30 days after submission of
JA&E's report.
END OE JA&E TERMS AND CONDITIONS