12-R-106 - Jackson A&E Professional ServicesRESOLUTION NO. 12-R-106
A RESOLUTION BY THE CITY .COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A PROFESSIONAL SERVICES
AGREEMENT WITH JACKSON A & E ASSOCIATES, INC. IN
CONNECTION WITH THE SKATE PARK CONSTRUCTION, AND
OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz, Texas (the "City") has determined that
the City requires professional "Owner's Representative" services related to monitoring and
managing the skate park construction; and
WHEREAS, the 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 252.422(a)(d) of the Texas Local Government Code, 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 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 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 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any provision of this Resolution are .hereby repealed to the extent of such conflict, and the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 small 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
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Govei7unent 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 11'" day of December, 2012.
CITY OF XAS
Ma or
ATTEST:
1
J
z __
pity secretary
lCi~~Y SEAL}
EXHIBIT A
Professional Services Agreement
j See Attached
56563349.2 A.-1
PROFESSIONAL SERVICES AGREEIrIENT
This Professional Services Agreement (this "Agreement"}, effective as of December ~,
2012 (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 skatepark project;
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;
IOW, THEREFORE, in consideration of the foregoing and the agreements contained
herein, the City and the Contractox 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 Conhactor 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 an 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 alI appropriate professional standards, including the maintenance
of all licenses and pei7nits 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 benef is
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.
{#) The Contractor wan•ants 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. Compensation. In consideration of the services provided by the
Contractor, the City will pay the Contractor as set forth in Attachment 1. Payments shall be
made within fve (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 twelve {12) month period. This Agreement may be terminated by
either party with thirty {30) days written notice to the other party. .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. 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 fiiture performance of any
such te>7n, covenant or condition by the other parry hereto, but the obligation of such other party
with respect to such future 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 tluough United States certifed 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
with a copy to: Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2100
San Antonio, TX 78205
Attn: Katherine A. Tapley
50557116.1 2
If to Contractor: Jackson A&E Associates, Inc.
b50b 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 far 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. Merger. This Agreement constitutes the entire agreement between the
parties relative to the subject matter hereof. There have been and are no. agreements, covenants,
representations, 01• 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 cant' out the purpose and intent of this Agreement.
Section 1.11. Governing 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. Counterparts. This Agreement may be executed in multiple counterpal~s
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.]
50557116.1 3
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 . Kessel, City Manager
JACKSON A&E ASSOCIATES, INC.
By:
Phil . Gau reau, Managing Prmclpal
X0557116.1 ~}
ATTACHMENT 1
JACKSON
/ ~~
A550CIATES
City of Schertz, Texas - JAKE f~-oposal
actolxr 15, 2pi {
i~loltipie Protects-Schanz, Texas
October 15,.2012
Mr. John Kessel
City Manager
City of Schertz, Texas
1440 Schertz Parkway
Building 2
Schertz, Texas 78154
RE: Proposal for Owner's Representative Services
Dear Mr. Kessel:
Pagelofl0
Jackson A&E Associates, ,Inc. QA&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 6eiow is our understandi--g of the proposed projects and the proposed scope of services, as
well as, information about the potential project schedule, fee structure, terms and condlt[ons 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 (C1ty), Texas to assist in the design and construction process for the Aquatic Center,
Animas Adoption Center and Dog Park Facility and Athletic fields renovat{ons and additions (Soccer and
Baseball).
The Citywill 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
fallow the three phases of activity as follows:
Phase I Selection of Delivery Method and Design/Construction Teams
Phase !I Design DevelopmentlConstruction Documents Preparation
Phase [II Bidding Phase, Construction Monitoring Review and Contract Closeout
JACKSON
City of Schertz, Texas ,-;AB~~ Proposal _ . October 15, 2D I
Multiple Projects -Schertz, Texas page 2 of 10
ASSOCIATES
EXCLUL7ED SCOPI;171=MS
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 adminlstration
• Facilitation of formal partnering with the erftire 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 SI=RVIC£S
Additional services for this project may be added to the Scope of Services by written scope and an
Agreem i!it 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 will be provided by the Clty for JA&E's use and
storage of project plans and documentation.
PROFESSIONAL SI=RYICE FEES
The fee for JA&£'s professional services on the Projects as described in tills proposal is based upon the
Information provided for the project, the Scope of Services only, the time frame anticipated, the
referenced terms and cond[tlons, and Is $9,000.00 per month with a not to exceed value of
$I 08,000.00 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. Pro{essional 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 sha11 be billed atone and one-hail times the
scheduled rate.
JACKSON
A550GATE5
Ciry of Sthertz, Texas - y4&E Proposal
October 15, 201 I
Multiple Protects - 5chert-r, 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&E's fnvo[ce which is considered past due, City agrees to pay a service charge on the
past due amount at the greater of l% 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 protect 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&E 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
JACKSOiV
~~ Qty of Schertz, Texas - JAB~E Proposal October 13, 201 I
hlultrple Protects - Schertz, 'Texas Page 4 of'10
ASSOClAT~S
APPENDIX A
SCOPE OF SERVICES
OWNER REPRESENTATION SERVICi=S
PROFESSIONAL SE=RVICES PROCUREMENT, PROGRAMMING AND MASTER PLANNING
During the professional services procurement, we will:
A. Participate In discussions with representatives of the Clty of Schertz to refine the scope of
the project.
13. Meet with the CEty regarding the selection of a Design Professional Team for the project
and assist in the development of the Request for Qualifications (RFQ) for Architects 1
Engineers (A1E}.
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
[ncluding deffning 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, anti then the consultants as needed will be selected.
G. Participate in discussions regarding various construction deilvery methods for the project
and assist the project team in method se{ection.
H. Prepare Requests for Proposals {RFP) for the construction deilvery 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
Professiorals.
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
ASSOCIATES
City of Sc}tertz,l'exas - JA&E Proposal
~cto6er 15, 201 I
Multiple Protects - $chertz, Texas Page 5 of I0
During the programming and master planning phase, we will:
M. Meet with representatives ofthe 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.
I'. Arrange and attend meetings for the AIE 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 wmments 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.
If. DESIGN DEVELOPMENT AND CONSTRUCTION DOCUMENTS PRI=PARATION
During the documentation preparation phase, we will:
A, Conduct periodic meetings of the entire project team to address project status, issues a-id
concerns,
B. Review and analyze the drawings, budgets, meeting minutes and other descriptive mateNal
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 reguiat[ons,
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 var[ous 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.
JACI<5gN
~1~
ASSQCIATES
City of Schertz, Texas - jA&~ 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 prequaiiflcatlon 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 documentatfan presented.
E. Review all construction related costs (excluding soft casts) and provide an opinion as to its
adequacy and appropriateness in relation to Industry standard costs. Opinion of Cost
Review will 6e 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 avallabliity 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 Clty, 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,
deliciencles and omissions between the construction observed In place and the contract
documents. In addition, outstanding defects or deviations noted in previous construct[on
reports will be described noting the correction or resolutson, if any.
I. Report on rite progress of the constructs^n to date in relation to the Construction
Manager's pro]ected construction schedule, Hating concerns or issues with sequencing or
completion timing.
JAC[CSOi~!
ASSOCIA~"E5
Ciry of Schertz, Texas - JA&E Proposal
October 15, 201 I
Multiple Praiects - 5chertz, Texas
Page 7 of 10
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.
f.. Review the construction progress to date to determine that the work has been generally
accomplished in a good and workrrtanllke manner and is In general accordance with tho
intent of the contract documents.
M. Provide quality, lalaeled, color or digital photographs, if desired, within the Construction
Reports} to more explicitly relate to the observations described.
N. I;eview monthly reports and draw requests, as well as proposed changes in order to
provide opinion to Ciry 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 Bald 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 Rnal sign. offs, which are provided to
consultant including, but not limited to, final certificates of occupancy.
K. Assist in the contract close out process.
fACKSON
J
ASSOCIATES
Gty o(5chertz, Texas- JA&E Proposal
Octaher 15, 201 I
tKu[tiple Projects - Schertz, Texas
Page 8 of lil
JA&E TERMS AND CONDITIONS
Jackson A&E Associates, In[. QA&E) is pleased to provide the servfces described In the foregoing proposal. The purpose of this
document is to obtain your authorization for the work requested and the terms and condlt[ons 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 authorizaton.
I. SERVICES, Jackson A&E Associates. Inc., through and by its officers, employees, and subcontractors, (hereinafter JA$E) u an
independent consultant and agrees to provide Client, for its sole benefit and exclusive use, consulting services set Corth in our
proposal. No third party beneRclarles are intended by this Agreement.
2. -PAYMENT TERMS. Client agrees to pay JA$E's Invalce upon receipt. If payment is not received within 30 days from the
Client's receipt of JARE's Invoice which fs considered past due, Client agrees to pay a service charge on the past due amount at the
greater of I% per month or the allowable legal rate.. After Ilve days prior notice to Client, JA&E may suspend services until paid
on any project where payment of invoiced amounts not reasonably in dispute is not received by JA&E within AS days of Client's
receipt of JABcE's invoice. Client receipt of invoice wil! be presumed one day after'hand or email delivery 6y fA&E. T1me Is of the
essence of this provlsfon.
Either party may terminate this Agreement without cause upon 30 days prior written notice. This Agreement will terminate
automatically upon the insolvency of the Client. In the event Client requests termination prior to completion of proposed
services, Client agrees to pay)A&E for all reasarabte charges incurred to date and associated with termination of the wont,
3. STANDARD OF CARE. )A&E will perform ks services using that degree of care and skill ordinarily exercised under similar
renditions by reputable members of JA$>:'s profession practicing in the same or similar locality at the lime of service, No other
warranty, express or implied, Is made or intended 6y our proposal or by our oral or written reports.
4. INSURANCE. JA$E mafntafns Insurance coverage as fellows:
Worker's Compensation Insurance -statutory.
Employer's l.iabillty Insurance • $1,000,006
Commercial General 19abllltyInsurance - $1,000,000
Automobile lJabllity insurance - $ 1,000,000
Excess Umbrella - $1,000,000
Professional Errors & Omission -$1,000,000
5. PROFESSIONAL LIABILITY. For additional cons[deratlon from JAfkE of $1.00, receipt of which is hereby
acknowledged, Client agrees that JA&E's 1lalsfllty, and that of Its ollleors, directors, employees, agents and
subcontractors, to Client or any third party duo to any negligent professlonaf acts, errors or omissions or breach of
contract by JA&E will 6e Ilmlted.to an aggregate of $21,000. If Cilent prefers to have higher limits of professional liability,
JA$1~ agrees to try to increase the aggregate limit, up to a maxlmurn of $I,DOO,ODD, upon Client's written request at the time of
accepting our proposal, provided Client agrees to payer addltfonal consideration of ten percent of JA$E's total charges, or $500,
whichever is greater. The additlona! charge far the higher liability limit is because of rho greater risk assumed by ~&E and is not a
charge for additional professional liability insurance. T61s Ilnutatlon shall not apply to Ehe extent prohibited bylaw.
6. EXTENS[ON OF PROTECTION. Cilent agrees that any all Urnltatlons of JA$E's Ilabllity and Indemnifications by rho Client to
JA$E shall lnc[ude and extend to those Indlvlduals and entitles jq&E retains for performance of the services under this Agreement,
including but not limited to fAB~E's officers, partners and employees and their heirs and assigns, as well as JA&E's subronsultants
and theft ofFlcers, employees, heirs and assigns.
7. CORPORATE PROTECTION. It Is Intended by rite parties to this Agreement that JAS,E's services shall not sub]ect JA&E's
individual employees, officers, directors, managers or partners to any personal legal exposure for the risks associated with the
services. Therefore, and notwithstanding anything to alte contrary herein, Gllent agrees that as the Client's sole and exclusive
remedy, any claim, demand or suit shall be directed andJor asserted only against fA$E, a Texas Corporation, and not against any of
JA&E's individual employees officers, directors, managers or partners.
8. SITE OPERAT{ONS. Client will arrange for right-of-entry to the property for the purpose of performing project management,
studies, tests and evaluatleru pursuant to the agreed servfces, Cilent represents that It possesses necessary permits and licenses
required for Its activities at the she.
~&E is not responsible for any damage or loss due to undisclosed or unknown surface ar subsurface conditions owned by Client
or third part[es, except to the extent such damage or loss is a result of fAlhE's negligence. Otherwise, CI[ent agrees for the
additional consideration of $1.00, receipt of which is hereby acknowledged, to the extent permitted by law, to indemnify JA&E, Its
officers, directors, employees, agents and subcontractors, from any such claim, salts or fosses, including related reasonable
attorney's fees,
JACKSON
~~ #~
ASSOCIATES
City of Schertz, Texas - jA&ir Proposal
October I5, 201 I
IKu[tlplo Protects - Schertz, Texas
Page 4 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
/A&E to repair such damage, JA&E will do so at an appropriate additional cost.
9. FIELD REI?RESENTATIVE, The presence of JAgE's or its subcontractor's field personnel, either full-time or part-tune, may be
for the purposes of providing protect adminlstratlon, assessment, observation andlor I[eld testing of specific aspects of the project
as authorized by Cilent. Should a contractor(s) not retained by jA&E be Invohred in the protect, Client w11i advise such
contractor{s) that jA&E's services do not include supervision or direction of the means, methods or acttraf work of the
contractor{s), its employees or agents. Client will also inform contractor that the presence of JA&E's held representative will not
relieve the contractor of its responslbilldes for performing tits work in accordance with its agreement with Cilent.
If a rnntractor (not a subcontractor of JA&E) !s involved in the project, Cilent agrees, in accordance with generally accepted
construction practices, that the contractor will 6e solely and completely responsible for working condition on the job sito,
fnciuding security and safety o[ all persons and property during performance of [he work, and compliance with elf Client safety
requirements and OSHA regulations. These requirements will apply continuously and will not be limited to normal working hours,
[t Is agreed that 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 that JA&E does not have the duty or right to stop the work of the contractor.
10. l1NFORESEEN CONbiTIONS OR OGCURAENCES. It is possible that unforeseen conditions or occurrentes may be
encountered at the s[te which could substantially after the necessary services or die risks involved to completing JA&E's services. If
this occurs, JA&E will suspend services and promptly notify and consult wftlt Cilent, but will ac[ based on ~&E's sole Judgment
where risk to JA&E personnel Is involved. Possible actfans could Include:
a) Complete the or~nal Scope of Services in accordance with the procedures originally Intended in our proposal, if practical in
)A&E's Judgment;
b) Agree with Cilent to modify the 5copo of Services and die esdmato of charges to include study o! the unforeseen conditions
or occurrences, with such revlsfon agreed to in writing;
c) Terminate the services effective on tho date sped[led 6y JA&E fn vrriting.
I I. DOCUfYtENTS. JA&E will furnish Client die agreed upon number of documents and supporting information. These instruments
of service are furnished for Client's exclusive internal use and reliance, use of Client's counsel, use of CI[ent's gualilled bidders and
for regulatory submittal in connection with the proposed services prov[ded for In rhls Agreement, but not for advertis[ng or other
type of distribution, and are subJect to the following:
a) A11 documents generated by JA&E under this Agreement shall remain the sole properly of JA&E. JA&E shall retain all
common law, statutory and other reserved rights, including the copyright thereto. Any unauthorized use or distribution of
JA&E's work shall be at Cllenr's and recipient's sale risk and without liability to jA&E, jAr3~1= may retain a canRdentlal fife copy
of Its work product and related documents.
6} If Cilent desires to release, or far JA&E to provide, our work product(s) to a third party not described above for that party's
reliance, fA&E will agree to such release provided we ret:ehre written acceptance from such third partyr to be bound by
acceptable terms and condit[ons similar to this Agreement (n.g. 5econdary Client Agreement}. Work product(s) provided for
disclosure of Information only will not require separate agreement. Client acknowledges and agrees to inform such third
party drat JA&E's work product(s) reTlens conditions only at the time of the study and may not reflect conditions at a later
t[me. Client further acknowledges that such request for release creates a potential conflict of interest for ]A&E and by this
request waives arty such claim should JABE comply with the request.
c) Cilent agrees that all documents furnished to Cilent or Client's agents or designees, If not paid for, will be returned upon
demand and will not be used by Cilent or any other entity for any purpose whatsoover. Client further agrees that documents
provided 6y JA&E pursuant to this Agreement will not be used For any protect not expressly provided for In this Agreement
without JA&E's prior written approval.
d) Client shall furnish documents or information reasonably within Gllent's control and deemed necessary by JA&E for proper
performance of our services. JA&E may rely upon Client-provided documents In petiorming the services under this
agreement; however, JA&E assumes no responslbllily or fiabillty far their accuracy. Cilent-provided documents will rernaln
the property of Cilent, but JA&E may retain one tonfidentlal file copy as needed to support air work product.
12. GLAll+45. The parties agree to attempt to resolve any dispute without resort to l[tigation, including use of non-binding medlatfon,
prior to filing of any suit. However, fn the event a claim rosufts In litigation, and the claimant does not prevail at trial, then the
claimant shall payall costs incurred in pursuing and defending the claim, including reasonable attorneys fees.
13- ,OPINIONS OF COST. If requested, JA&E will use its best efforts and experience on similar projects to provide realistic opinions
of probable costs for remedlation, repair or construction as appropriate based on reasonably available data or jA&E's
recommendations. However, such opin[ons are intended primarily to provide information on the order o! magnitude or scale of
such costs and are nor intended for use in firm budgeting or negotiation unless speclfirally agreed otherwise in writing by JA&E.
Cilent understands actual costs of such work depend heavily on regional economics, focal construction practices, material
JACxsofd
C7ty of Schertz, Texas -JAKE Proposal October 15, 201 I
Multiple Projects-Schertz, Texas Pago 10 of 10
ASSOClATE5
a+rallablllty, site conditions, weather conditions, contractor skills. and many ether factors beyond JA&E's control. JA&E makes no
warranty, express or implied, that bids or negotiated costs of such worn wilt 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 provide testimony or other evidence by any party,
whether at deposition, heating or trial, fn relation to services provided under this Agreement, and JA&E is not a party in the
dispute, then JA&E shall be compensated 6y Client for the associated reasonable expenses and labor for JA&E's preparations and
testimony at appropriate unit rates,
I5. CONFIt7ENTIALITY. JADE will maintain as conlldendaE any documents or information provided by Client and will oat release,
distribute or pvbllsh same to any third party without prier permission from Client, unless compelled bylaw or order of a court or
regulatory body of competent jurisdiction. Such release will occur only after prior notice to Client.
16. GOVERNING Lgyy, This Agreement shall be governed fn all respects by the taws of the State of Texas.
l7. SURVIVAL. All provisions of this Agreement for indemnity or allocation of responslhillty or ilabiiity between Cltent and JAB,E
shall survive the completion of the services and the termination of tfeis Agreement.
18. S>=VERABILITY. In the event that any provision of this Agreement [s found to be unenforceable under law, the remaining
provisions shall continue In full force and effect.
19. ASSIflNMENT. This Agreement ntay not be assigned by eitfier party without the prior permission of lire other.
2P. CONSIDERATION. The parties agree that the charges for JA&E's services are sufffcfently adjusted to include any spedllc
consideration payable to Client under titosa terms and condlt[ons.
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 6y both parties.
22, STATUTES OP REPOSE AND LIMITATION. All legal causes of action between the parties to th[s 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 pISCLOSURE. Client agrees to advise JA&E upon execution of this Agreement of any hazardous substance rir any condition,
known or that reasonably should be known 6y Client, existing in, on, or near the site brat presents a potential danger to human health, the
emrironment, or JA&E's equipment. Client agrees to provide JA&E continuing related information as ft becomes available to the Client.
By virtue of entering into this Agreement or providing services hereunder, JA&E does not assume contrd of or responsibility as an
operator or otherwise for the sito or the persons} in chargo of file site, or undertake responsibility for reporting to any federal, state or
focal public agendes arty candltiatu 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 federal, state or lo~l public agenurs as required by taw; or otherwise to
disclose, in a timely roamer, anylnfotttradon that maybe necessary to prevent damage to human health, safety, or the environment.
24. ENVIRONMENTAL INDEMNITY. In connection with toxic or hazardous substances or constituents, lnduding but nos ]irtYted to
mdd, and to the maximum extent permitted by taw, Client agrees to defend, hold harmless, and indemnify JA&E from and against any and
all claims, fiabi6fies, or judgments, except to the extent finally determined as being caused 6y JA&E's negligence or willful misconduct,
resulting from:
a} Client's vloiadon of any federal, state, or local statute, regulation, or orriinance relating to the management or disposal of toxic
or hazardous substances or constituents;
b) Client's undertaking of or arrangement for the 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 cite site by Client or third persons before, during, or after the
completion of JA&E's services;
d} Alfegatlons that JA&E fs a handler, generator operator, treater, stoner, rransporte , or disposer unless expressly retained by
Client for such servkes under the Resource Conservatlat and Recovery Act of 197b as amended or arty outer similar federal,
state or kxal regulation, ordlnartce, or taw due to JA&E's services;
e) A release of toxic or hazardous substances or constituents at or from the proJett site before, during, or after contpledon of
JA&E's services under this Agreement. Any third party suit or clal~n For damages against JA&E alleging strict liabillry, personal
Injury ¢nduding death} or property damage from exposure.
25. SAMPLE D15POSAL Test specimens or samples generally are consumed or substantially altered during testing and arty remnants are
disposed of lmmedlately upon completion of tests. Remaining samples and other specimens are disposed of 30 days after submiss[on of
JA&E's report. .
END C}F JABE TERI.7S AND CONf]ITIONS