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22-R-51 - Amendment to agreement with RABA Kistner IncRESOLUTION NO. 22 -R -51 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH RABA KISTNER, INC., TOTALING NO MORE THAN $69,000.00, FOR PROFESSIONAL ENGINEERING - RELATED SERVICES ON THE TRI- COUNTY PARKWAY RECONSTRUCTION PROJECT, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, during construction of the Tri- County Parkway Reconstruction project materials sampling and testing are required to verify completed work is in compliance with the construction contract; and WHEREAS, City staff has determined that Raba Kistner, Inc. is uniquely qualified to provide such services for the City; and WHEREAS, Raba Kistner, Inc. is an approved On -Call Engineering Firm for the City of Schertz; 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 has previously entered into a contract with Raba Kistner, Inc. for materials testing associated with the cement treatment activities for the Tri- County Parkway Reconstruction project in the amount of $16,300.00 now needs to amend that contract to add the additional materials testing needed to complete the project; and WHEREAS, the City Council has determined that it is in the best interest of the City to amend the contract with Raba Kistner, Inc. in the amount of $48,957.00, to a new contract total of $66,257.00; and WHEREAS the City Council hereby authorizes the City Manager to execute and deliver the Amendment to the Agreement with Raba Kistner, Inc. in substantially the form set forth on Exhibit A and to execute further amendments as necessary not to exceed a total expenditure amount of $69,000.00 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Amendment to the Agreement with Raba Kistner, Inc. in substantially the form set forth on Exhibit A and to execute further amendments as necessary not to exceed a total expenditure amount of $69,000.00 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 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 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 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 24th day May, 2022. CITY OF SCHERTZ. TEXAS Mayor ATTEST: Brenda Denni-S, City Secretary S ` a a 50077397.1 EXHIBIT A PROFESSIONAL SERVICES AGREEMENT 50077397.1 A-1 Task Order This is Task Order No 1 , consisting of 3 pages. in accordance with Paragraph 1.01 of the Agreement Between Owner and Engineer for Professional Services — Task Order Edition, dated April 26, 2022 ( "Agreement "), Owner and Engineer agree as follows: 1. Background Data a. Effective Date of Task Order: b. Owner: C. Engineer: d. Specific Project (title): e. Specific Project (description): 2. Services of Engineer TBD City of Schertz Raba Kistner, Inc. Schertz Tri- County Parkway — CTB Testing and Observations Observe and verify specifications for the placement of Cement Treated Base on Tri- County Parkway, A. The specific services to be provided or furnished by Engineer underthis Task Order are: Add services for Construction Materials and Observation and Testing Services as provided in Proposal PND22- 019 -01 Attachment I 3. Owner's Responsibilities Owner shall have those responsibilities set forth in Article 2 of the Agreement and in Exhibit B. Task Order Form EJCDC® E -505, Agreement Between Owner and Engineer for Professional Services — Task Order Edition. Copyright ® 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 This is Task Order No 1 ' consisting of 3 pages. Task Order In accordance with Paragraph 1.01 of the Agreement Between Owner and Engineer for Professional Services — Task Order Edition, dated April 26, 2022 ( "Agreement "), Owner and Engineer agree as follows: 1. Background Data a. Effective Date of Task Order: b. Owner: C. Engineer: d. Specific Project (title): e. Specific Project (description): 2. Services of Engineer TBD City of Schertz Raba Kistner, Inc. Schertz Tri- County Parkway — CTB Testing and Observations And Construction Materials Testing Observe and verify specifications for the placement of Cement Treated Base on Tri- County Parkway and placement of construction materials. A. The specific services to be provided or furnished by Engineer under this Task Order are: Add services for Construction Materials and Observation and Testing Services as provided in Proposal PND22- 019 -00 Attachment I 3. Owner's Responsibilities Owner shall have those responsibilities set forth in Article 2 of the Agreement and in Exhibit B. Task Order Form FJCDC® E -505, Agreement Between Owner and Engineer for Professional Services — Task Order Edition. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 4. Task Order Schedule In addition to any schedule provisions provided in Exhibit A or elsewhere, the parties shall meet the following schedule: Party I Action I Schedule Engineer Provide construction materials observation and testing services and accompanying reports, as per Proposal PND22- 019-01 On a call -out basis Owner I Notice to Proceed ' As Coordinated 5. Payments to Engineer A. Owner shall pay Engineer for services rendered under this Task Order as follows: We estimate a budget of $16,300.00 to perform the construction materials testing and observations outlined in the Cost Estimate Breakdown portion of Proposal PND22- 019 -01 Attachment II. B. The terms of payment are set forth in Article 4 of the Agreement and in the applicable governing provisions of Exhibit C. 6. Terms and Conditions Execution of this Task Order by Owner and Engineer shall make it subject to the terms and conditions of the Agreement (as modified above), which Agreement is incorporated by this reference. Engineer is authorized to begin performance upon its receipt of a copy of this Task Order signed by Owner. The Effective Date of this Task Order is to be determined Task Order Form EJCDC® E -505, Agreement Between Owner and Engineer for Professional Services — Task Order Edition. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 OWNER: ENGINEER: 6e�4 By: By: _ Print Name: Print Name: R. Blake Wright, P. E. Title: Title: Associate DESIGNATED REPRESENTATIVE FOR TASK ORDER: DESIGNA7 Name: Name: Title: Title: Address: Address: E -Mail E -Mail Address: Address: Phone: Phone: ED REPRESENTATIVE FOR TASK ORDER: R. Blake Wright, P. E. Associate 211 Trade Center Drive, Suite 300 bwright@rkci.com 830.214.0544 Task Order Form EJCDC® E -505, Agreement Between Owner and Engineer for Professional Services — Task Order Edition. Copyright ® 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 Proposal No. PND22- 019 -00 April 26, 2022 John Nowak City of Schertz 10 Commercial Place, Bldg 2 Schertz, Texas 78154 RE: Construction Materials Observation and Testing Services Tri- County Parkway — Asphalt and Concrete Schertz, Texas Dear Mr. Nowak: RA BA KIST..ER 211 Trade Center, Suite 300 New Braunfels, TX 78130 P 830.214.0544 F 830.214.0627 TBPE Firm F -3257 Thank you for selecting Raba Kistner, Inc. (RKI) as your Construction Materials Testing Company on the Tri- County Parkway Project. Our opinion of probable cost of services for this project is $49,957.00. Our proposed scope of services and estimated item quantities are based upon our interpretation of the project plans and specifications, and are with the aide of the general contractor's schedule. The scope and quantity of services provided will be dependent upon services actually required by you or your representatives. Charges will be assessed only for actual services rendered. All services authorized are requested by you or your representatives in excess of the quantities of observation and testing services shown herein will be charged at the appropriate unit rate for such services. Charges will be invoiced on a monthly basis and will show a summary total of services rendered for each service category. Invoices will be submitted monthly for work in progress in our standard format. All parties hereby agree that this contract upon acceptance will be performable in Comal and Guadalupe Counties, Texas. We appreciate the opportunity of submitting this proposal and look forward to working with you in the development of this project, which will be carried out in accordance with this letter and the following attachments: Attachment Description I Fee Structure and Standard Charges II Fee Estimate Breakdown III Report Distribution List IV Standard Terms and Conditions Please return one signed copy of this letter contract to provide written authorization for our firm to complete work on the services outlined herein. Our invoices are due and payable upon receipt at P.O. Box 971037, Dallas, Texas 75397 -1037. CONSULTANTS • ENVIRONMENTAL • PROJECT MANAGEMENT • INFRASTRUCTURE Proposal No. PND22- 019 -00 April 26, 2022 Very truly yours, RABA KISTNER, INC. Accepted By: 6kl'A R. Blake Wright, PE Associate RBW /ajj (Signature) (Typed or Printed Name) (Title) Attachments (Date) Proposal No. PND22- 019 -00 April 26, 2022 FEE STRUCTURE AND STANDARD CHARGES Proposed Materials and Observation Services for Tri- County Parkway Schertz, Texas Basic Charges Attachment I 1. A vehicle travel charge will be assessed for round trip travel from our office to the project site, material supplier, etc, and back to our office. The charges for travel from our office to the project site and return to our office will be as follows: Travel Time (Round Trip) ...................................... ............................... 0.75 Hour(s) Vehicle Travel Charge ........................................... ............................... $ 15.00 /Trip 2. Service charges are based on the hourly rates stated herein and will be assessed from the time the Engineer or Technician leaves our office until he returns from the project. 3. "Normal' work hours are Monday through Friday between 7:00 a.m. and 6:00 p.m., including travel time to and from the site. Any engineering and /or technical services provided on Saturday, Sunday, Holidays and all work performed outside of "normal' work hours will be charged at an overtime rate multiplier of 1.4 times the hourly rate. Our total cost of services is based upon the assumption most services will be provided during "normal' work hours. Providing an excessive amount of services during days and /or hours requiring overtime rates may significantly increase the total cost of services shown herein. 4. Overtime charges will also be assessed after eight (8) continuous hours of services rendered during "normal" work hours. 5. Minimum 2 hours billed per visit to project site. 6. RKI will utilize the on -site initial field curing facilities provided by the contractor. The cost of providing and maintaining these initial curing facilities is not included in our proposal. RABA . I T: ; a Proposal No.:PND22- 019 -00 April 26, 2022 Attachment II RK CMT Estimate Sheet New Braunfels Project Name: Tri- County Parkway CONB Proposal #: PND22- 019 -00 Client: City of Schertz Prepared By: C. Franks Client Contact: John Nowak Revised Date: 4/25/2022 Client Phone: 210.380.5574 Project Location: Corridor Parkway FM 3009 Client Email: jnowak @schertz.com TESTING /OBSERVATION ITEM ESTIMATED UNIT UNIT PRICE UNIT TOTAL SUBTOTAL QUANTITY CONCRETE Laboratory Testing Concrete Compressive Strength Cylinders 285 each $ 19.00 $ 5,415.00 Field Testing /Observation Materials Technician 116 hour $ 48.00 $ 5,568.00 Materials Technician (overtime) 0 hour $ 62.40 $ - Vehicle Travel Charge 32 trip $ 15.00 $ 480.00 Concrete Cores each $ 100.00 $ - Coring Rig Rental trip $ 150.00 $ - Pick up Test Specimen 25 each $ 49.00 $ 1,225.00 $ 12,688.00 ASPHALT Laboratory Testing Bag Sample (Burn, Gradation, A/C content, Molding Specimens, Laboratory Density 43 each $ 437.00 $ 18,791.00 of Molded Specimens, Stability Test, Hveem, Maximum Theoretical Specific Gravity) Density of Asphalt Cores each $ 104.00 $ - Field Testing /Observation Materials Technician 240 hour $ 53.00 $ 12,720.00 Materials Technician (overtime) 60 hour $ 62.40 $ 3,744.00 Vehicle Travel Charge 30 trip $ 15.00 $ 450.00 In -Place Nuclear Densities each $ - $ Nuclear Density Gauge Rental (ASTM D 2950) 30 'trip $ 26.00 $ 780.00 $ 36,485.00 PROJECT ADMINISTRATION Project Engineer (P.E.) - Geotechnical /Materials Engineer 4 hour $ 179.00 $ 716.00 Engineering Tech hour $ 48.00 $ - Vehicle Trip Charge trip $ 15.00 $ Project Coordination 1 hr $ 68.00 $ 68.00 MEE 784.00 Fee Subtotal $ 49,957.00 TOTAL ESTIMATED FEE' I $ 49,957.00 Proposal No. PND22- 019 -00 April 26, 2022 REPORT DISTRIBUTION LIST Project Name: Client Project No.: Invoicing Information: Company Name: Address: Purchase Order No.: Attachment III RABA I N Attention: Please provide required report distribution (hard copies can be provided upon request): Contact: Company: Phone No.: Email: Contact: Company: Phone No.: Email: Contact: Company: Phone No.: Email: Contact: Company: Phone No.: Email: Contact: Company: Phone No.: Email: Contact: Company: Phone No.: Email: Contact: Company: Phone No.: Email: Contact: Company: Phone No.: Email: Contact: Company: Phone No.: Email: RABA I N Proposal No. PND22- 019 -00 April 26, 2022 LR A B A KISTNER STANDARD TERMS AND CONDITIONS Attachment IV 1. DEFINITIONS. the location of all underground utilities and other structures in the the buildings and sites which are the subjects of RK's services. CLIENT vicinity of RK borings or excavations. RK will not accept responsibility 1.1 RK. Raba Kistner, Inc., and / or one of its subsidiaries and will not be liable for affecting or damaging any underground (Project Control of Texas, Inc. or PC Sports, Inc.) that is utility, underground storage tank, or other subsurface condition not being engaged to provide the services to CLIENT in previously identified and located, or improperly located, by the connection with the delivery of the proposal to which CLIENT, a utility, or a utility locating agency. these Standard Terms and Conditions relate. investigation for which CLIENT has engaged RK to 4. SITE ACCESS AND SITE SAFETY. CLIENT shall provide right -of -entry to 1.2 CLIENT. Person, entity or organization for which RK is the buildings and sites which are the subjects of RK's services. CLIENT rendering services regarding the Project. represents that it possesses authority for such right -of -entry and that the building /site operator(s) possess the necessary permits and 1.3 PROJECT. The activity, venture, plan, building, site or licenses for current activities at the site. RK shall be responsible for investigation for which CLIENT has engaged RK to supervision and site safety measures of its own employees and provide professional services. subconsultants, but shall not be responsible for the supervision or health and safety precautions of any other parties, including CLIENT, 1.4 CONTRACTOR. Person, entity or organization providing CLIENT's contractors, subcontractors, or other parties present at the construction services, including labor and material for site. the Project. 5. SUBSURFACE EXPLORATIONS. Subsurface conditions throughout the 1.5 SERVICES. The professional services to be performed by site may vary from those depicted on logs of discrete borings, test RK as set forth in the proposal or Agreement to which pits, or other exploratory services. CLIENT understands RK's layout of the Standard Terms and Conditions are attached. boring and test locations is approximate and that RK may deviate a reasonable distance from those locations. RK will take reasonable 1.6 AGREEMENT. RK's proposal accepted by CLIENT and precautions to reduce damage to the site when performing services; these Standard Terms and Conditions which are however, CLIENT accepts that invasive services such as drilling, or incorporated into and made a part of the Agreement. sampling may damage or alter the site. Site restoration is not provided unless specifically included in the scope of services. 2. SERVICES. RK is being engaged by the CLIENT to render professional services ( "Services ") involving only RK's 6. CHANGED CONDITIONS. If, during the term of this Agreement, advice, judgment and opinion. RK may subcontract all or circumstances or conditions that were not originally contemplated by a portion of the Services performed hereunder. RK shall or known to RK are uncovered or revealed, to the extent that they apply professional judgment in determining the extent affect the scope of services, compensation, schedule, allocation of to which RK complies with any given standard identified risks or other material terms of this Agreement, RK may require in RK's instruments of professional services. CLIENT renegotiation of appropriate portions of this Agreement. RK shall expressly acknowledges that RK makes no warranties or notify the CLIENT of the changed conditions necessitating guarantees, expressed or implied, regarding the renegotiation, and RK and the CLIENT shall promptly and in good faith Services. attempt to renegotiate the terms of the agreement affected by the changed conditions. If changes cannot be agreed to with respect to 3. INFORMATION PROVIDED BY CLIENT. CLIENT may the changed conditions, the parties shall utilize the Dispute provide or direct RK to utilize or rely upon certain Resolution /Litigation procedures in this Agreement. information ( "CLIENT Information ") in the performance of RK's services. RK shall be entitled to rely upon such 7. TESTING AND OBSERVATIONS. CLIENT understands that testing and CLIENT Information. RK will not conduct an independent observation are discrete sampling procedures, and that such evaluation of the accuracy or completeness of such procedures indicate conditions only at the depths, locations, and CLIENT Information and shall not be responsible for any times the procedures were performed. RK will provide test results errors or omissions in such information. RK's report, as and opinions based on tests and field observations only for the work well as any recommendations, findings, and conclusions tested. CLIENT understands that testing and observation are not made by RK, are dependent on information received continuous or exhaustive and are conducted to reduce – not from CLIENT. Changes or modifications to the eliminate – project risk. CLIENT agrees to the level or amount of information provided by CLIENT can affect RK's testing performed and the associated risk. CLIENT is responsible evaluation, recommendations, findings and conclusions, (even if CLIENT delegates such responsibility to Contractor) for and CLIENT agrees —as a material term of this notifying and scheduling RK to perform these services. RK shall not Agreement —to notify RK immediately, in writing, if be responsible for the quality and completeness of contractor's work CLIENT becomes aware of any such changes or or Contractor's adherence to the project plans, specifications and modifications, including changes to the size, scope, other related documents. RK's performance of testing and location, or other material characteristics of CLIENT's observation services shall not relieve Contractor in any way from project. The CLIENT shall be responsible for providing responsibility for defects discovered in Contractor's work or create a Page 1 of 4 Legal \A5954\ 397228 \4819- 8923- 4614.v3- 9/24/20 ADM100 Proposal No. PND22- 019 -00 Attachment IV April 26, 2022 warranty or guarantee on the part of RK. CLIENT or a cause of action in the favor of any third party against either RK acknowledges that RK will not supervise or direct the or CLIENT. If CLIENT provides a copy of any report prepared by RK to work performed by Contractor or its subcontractors and others, it shall advise the recipient that the information contained in is not responsible for their means and methods. the report is provided for information only and is not to be relied upon by third parties. 8. ESTIMATE OF FEES FOR SERVICES. If included as part of RK's proposal, RK will, to the best of its ability, perform 12. LEED PROJECTS. Unless specifically addressed elsewhere in this the scope of services within the proposed fee estimate agreement, RK has no responsibility or liability, including duty to provided by RK. RK's proposal fees are based upon an defend or duty to indemnify, any party (including but not limited to estimate of the services required to meet the CLIENT, owner, owner's agents, architects, engineers, contractors, specifications for the project and following generally construction managers, subcontractors) for the LEED certification accepted engineering practices. The CLIENT recognizes process including: developing, producing, or retaining any that unforeseen circumstances along with changes in documentation relating to the calculation of LEED points; and scope and project /contractor's schedules can influence attainment of LEED certification points or LEED ratings. the successful completion of the scope of services within the estimated proposed fees. Because Contractor has 13. STANDARD OF CARE. RK shall perform its professional services in sole control over the project and determines the means accordance with the standard of care and diligence normally and methods used to build /construct the project, RK's practiced by professional firms in performing services of a similar service fees are estimates and not lump sum or nature, in the same locality, under similar circumstances. CLIENT guaranteed maximum fees. The CLIENT is fully expressly acknowledges that RK makes no other warranties or responsible for payment for all services provided, guarantees, expressed or implied, regarding its professional services including retests of areas or samples that failed to meet or its work product. Project specifications. The Estimate of Fees is valid for a period of 60 days after RK's proposal is submitted to 14. RISK ALLOCATION. RK will be responsible only for its own work, and CLIENT. If RK's proposal is not accepted by CLIENT within that of its sub - consultants, and not for defects in the work designed 60 days after it is submitted to CLIENT, RK may modify or built by others. the Estimate of Fees. 15. LIMITATION OF LIABILITY. CLIENT AND RK HAVE EVALUATED THE 9. REPORTS. RK may provide CLIENT with written reports RISKS AND REWARDS ASSOCIATED WITH THIS PROJECT, INCLUDING in connection with the Services performed. Such reports RK'S FEE RELATIVE TO THE RISKS ASSUMED, AND AGREE TO will present such findings and conclusions as RK may ALLOCATE CERTAIN OF THE RISKS SO, TO THE FULLEST EXTENT reasonably make with the information gathered while PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF RK (AND performing its services and provided by CLIENT. The ITS RELATED ENTITIES, EMPLOYEES, OWNERS, AGENTS, AND reports may be copied for inclusion in other documents REPRESENTATIVES) TO CLIENT (AND THIRD PARTIES GRANTED related to the project provided they are reproduced in RELIANCE ON RK'S WORK PRODUCT, OR OTHERWISE SEEKING their entirety. Reports and other instruments of service RECOVERY UNDER THIS AGREEMENT) IS LIMITED TO THE GREATER are prepared for, and made available for, the sole use of OF $100,000ORTHE FEE PAID RK UNDERTHIS AGREEMENT, FORANY the CLIENT, and the contents thereof may not be used or AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES, OR EXPENSES relied upon by others without the express written (INCLUDING ATTORNEY AND EXPERT FEES) ARISING OUT OF RK'S authorization of RK. Any unauthorized use or SERVICES OR THIS AGREEMENT REGARDLESS OF CAUSE(S) OR THE distribution of RK's reports shall be at the CLIENT's sole THEORY OF LIABILITY. risk and without liability to RK. 16. CONSEQUENTIAL DAMAGES. Neither CLIENT nor RK will be liable to 10. TOXIC AND HAZARDOUS MATERIALS. CLIENT shall the other for any special, consequential, indirect, incidental or penal provide RK with all information within CLIENT's losses or damages of any kind, nor will CLIENT or RK be liable to the possession or knowledge related to the potential or other for losses, damages, or claims, regardless of how defined, presence of toxic or hazardous materials or pollutants at related to: lost profits; unavailability of property or facilities; the Project site. CLIENT agrees that RK neither created shutdowns or service interruptions; loss of use, revenue, opportunity, nor contributed to the creation or existence of any toxic or inventory; use charges, carrying costs, cost of substitute facilities, or hazardous materials or pollutants. In no event shall goods, or services; cost of capital, or claims of any other party and /or RK be required to sign a hazardous waste manifest or its customers. take ownership of any toxic or hazardous materials or pollutants. If unanticipated toxic or hazardous materials 17. SUSPENSION OF SERVICES. If CLIENT fails to make payments when or pollutants are encountered while RK is performing its due or otherwise is in breach of this Agreement, RK may suspend services, RK reserves the right to stop field operations performance of services upon seven (7) calendar days' notice to and notify CLIENT and CLIENT assumes responsibility to CLIENT. RK shall have no liability whatsoever to CLIENT for any costs notify appropriate regulatory agencies. RK and CLIENT or damages as a result of such suspension. Upon payment in full by must mutually agree to remobilize. CLIENT, RK may resume services under this Agreement, and the time schedule and compensation shall be equitably adjusted to 11. NO THIRD -PARTY BENEFICIARIES. The services and any compensate for the period of suspension plus any other reasonable report(s) prepared under this Agreement are for the sole time and expense necessary for RK to resume performance. Payment benefit and sole use of CLIENT and are not for the use of of invoices shall not be subject to any discounts or set -offs by CLIENT any other party or person. Only CLIENT may rely upon unless agreed to in writing by RK. Payment to RK for services the services and any report or work product. Nothing in rendered and expenses incurred will be due and payable regardless this Agreement, or any subsequent amendments or of any subsequent suspension or termination of this Agreement by modifications, or in any report issued under this either party. CLIENT shall not make any changes to RK's banking and Agreement, shall create a contractual relationship with deposit information or payment instructions unless CLIENT Page 2 of 4 Legal \A5954\ 397228 \4819- 8923- 4614.v3- 9/24/20 ADM100 Proposal No. PND22- 019 -00 Attachment IV April 26, 2022 communicates the requested changes to RK orally and in DAMAGES, LOSSES, AND EXPENSES (INCLUDING REASONABLE writing and obtains written confirmation from an RK ATTORNEYS' FEES, DEFENSE COSTS, AND COURT COSTS) ARISING officer that the requested changes are legitimate and FROM, OR ALLEGEDLY ARISING FROM, OR IN ANYWAY CONNECTED authorized by RK. If CLIENT makes a payment to a third WITH, THE UNAUTHORIZED REUSE OR MODIFICATION OF THE party instead of to RK based on an unauthorized request DOCUMENTS BY CLIENT OR ANY PERSON OR ENTITY THAT to CLIENT for a change to RK's banking and deposit ACQUIRES OR OBTAINS THE DOCUMENTS FROM OR THROUGH information or payment instructions and without CLIENT WITHOUT THE WRITTEN AUTHORIZATION OF RK obtaining written confirmation of the change from RK, REGARDLESS OF WHETHER SUCH CLAIMS, DEMANDS, OR ACTIONS CLIENT will remain liable to RK for payment of the ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED NEGLIGENCE amount of the unauthorized payment. OF RK, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR CONSULTANTS. 18. WAIVER OF SUBROGATION. To the extent damages are Parties other than CLIENT and RK may apply to use an instrument, covered by property insurance, or any other available using a form prepared by RK for that purpose. Others' use of an insurance coverage, CLIENT and RK waive all rights instrument shall be permitted only when CLIENT and RK both so agree; against each other and against the contractors, either shall have the right to forbid use by others. In addition, RK shall consultants, agents and employees of the other for make its permission contingent upon the satisfaction of certain damages. CLIENT agrees that CLIENT shall procure or conditions when, in RK's professional judgment, such a contingency is cause to be procured builder's risk insurance or other necessary. property insurance for its project. RK and CLIENT waive all rights against each other and any of their consultants, 20. DISPUTE RESOLUTION /LITIGATION. All claims, disputes, and other contractors, subcontractors, sub - subcontractors, agents, controversies between RK and CLIENT arising out of, or in any way and employees, for damages caused by fire, flood, or related to, the services provided by RK shall be submitted to other causes of loss to the extent covered by CLIENT's or mediation, before and as a condition precedent to, other remedies CLIENT's Contractor's builder's risk insurance, or other provided by law. Any litigation related to the Agreement or RK's available insurance coverage. The policies shall provide performance of its professional services shall be commenced in a court waivers of subrogation by endorsement or otherwise. in Bexar County, Texas. CLIENT consents to personal jurisdiction in CLIENT shall require of its contractors, consultants, the State of Texas and agrees that venue of any litigation shall be in agents and employees similar waivers in favor of RK and Bexar County, the county where RK's principal place of business is its subconsultants. A waiver of subrogation shall be located. CLIENT waives any objection to personal jurisdiction in Texas effective as to a person or entity even though that or to venue in Bexar County. The prevailing party in such litigation will person or entity would otherwise have a duty of be entitled to recover all court costs, attorneys' fees, and other legally indemnification, contractual or otherwise, did not pay recoverable claim - related expenses. As a condition precedent to the insurance premium directly or indirectly, and mediation and / or litigation related to any claim arising out of the whether or not the person or entity had an insurable services provided under this Agreement, CLIENT shall obtain a written interest in the property damaged. affidavit from a registered, independent, and reputable professional engineer describing any error, omission or other act by RK that 19. OWNERSHIP OF DOCUMENTS. RK's reports, drawings, allegedly failed to comply with the professional standard of care plans, specifications, and other documents and applicable to RK's performance of services and provide such affidavit deliverables are instruments of professional service to RK. The affidavit shall comply with the requirements of Texas Civil ( "Instruments of Service ") developed by RK in Practice & Remedies Code Chapter 150. contemplation of a wide array of project- specific variables, including how the documents will be used and 21. TERMINATION OF CONTRACT. CLIENT and RK may terminate RK's by whom. RK shall be the author, owner and custodian services at any time upon ten (10) calendar days' written notice. In of the Instruments of Service, and shall retain all the event of termination, CLIENT agrees to fully compensate RK for common law, statutory, and other reserved rights, services performed including reimbursable expenses through the including copyright. By execution of this Agreement, RK termination date, as well as reasonable demobilization expenses. RK grants to CLIENT a limited, nonexclusive license to use will terminate its services without waiving any claims against or the Instruments of Service for purposes of constructing, incurring any liability to CLIENT. using, and maintaining the project for which the services are performed, provided CLIENT substantially performs 22. STATUTE OF LIMITATIONS. Any applicable statute of limitations will its obligations, including prompt payment of all sums commence to run and any cause of action shall be deemed to have when due, under this agreement. accrued not later than the earlier of the following: (1) the date of the report issued by RK giving rise to the cause of action; (2) the date on Upon completion of the services, and payment in full of which RK issues its last report under this Agreement; or (3) if RK is all monies due RK, CLIENT may retain copies of all such retained to perform construction observation, the date of substantial documents. THE INSTRUMENTS OF SERVICE ARE NOT completion of the project. INTENDED NOR REPRESENTED TO BE SUITABLE FOR REUSE ON EXTENSIONS, MODIFICATIONS, OR 23. FORCE MAJEURE, Neither party shall be liable in damages or have ADAPTATIONS OF THE PROJECT, OR ANY OTHER the right to terminate this Agreement for any delay or default in PROJECT. ANY REUSE OF SUCH DOCUMENTS, WITHOUT performing hereunder if such delay or default is caused by conditions WRITTEN VERIFICATION OR ADAPTATION BY RK FOR beyond its control ( "Force Majeure") including, but not limited to THE SPECIFIC PURPOSE INTENDED, WILL BE AT CLIENT'S Acts of God, Government restrictions (including the denial or SOLE RISK WITHOUT LIABILITY OR LEGAL EXPOSURE TO cancellation of any export or other necessary license), wars, RK. CLIENT AGREES, TO THE FULLEST EXTENT insurrections and /or any other cause beyond the reasonable control PERMITTED BY LAW, TO INDEMNIFY, DEFEND, AND of the party whose performance is affected. Force Majeure may not HOLD HARMLESS RK, ITS OFFICERS, DIRECTORS, be claimed as a cause for delay in payment of money due and payable EMPLOYEES, AND CONSULTANTS AGAINST ALL CLAIMS, hereunder. Page 3 of 4 Legal \A5954\ 397228 \4819- 8923- 4614.v3- 9/24/20 ADM100 Proposal No. PND22- 019 -00 Attachment IV April 26, 2022 24. NO ASSIGNMENT. Neither RK nor CLIENT shall assign or transfer its interest in this Agreement without the express written consent of the other. 25. SEVERABILITY. Each provision of this Agreement is intended to be severable. If any terms or provisions of this agreement shall be held to be invalid, illegal, or unenforceable for any reason whatsoever, the validity, legality, and enforceability of the remaining provisions hereof shall remain in full force and effect and shall not in any way be affected or impaired thereby. Moreover, to the maximum extent allowed by law, the Parties hereto stipulate that any offending provisions will be modified or altered, as necessary, so as to give such provisions the maximum permissible effect and application intended. 26. ENTIRE AGREEMENT. This Agreement, and all of its attachments, constitutes the entire, integrated Agreement between the Parties to it, and this Agreement supersedes all other Agreements, oral or written between the Parties, concerning the subject set forth in this Agreement. This Agreement may not be amended except in writing, with that amendment being signed by both Parties. Page 4 of 4 Legal \A5954\ 397228 \4819- 8923- 4614.v3- 9/24/20 ADM100 4. Task Order Schedule In additii ile provisions provided in Exhibit A or elsewhere, the parties shall meet the following schedule GW- Party I Action I Schedule Engineer Provide construction materials observation On a call -out basis and testing services and accompanying reports, as per Proposal PND22- 019 -01 Owner I Notice to Proceed I As Coordinated 5. Payments to Engineer A. Owner shall pay Engineer for services rendered under this Task Order as follows: We estimate a budget of $16,300.00 to perform the construction materials testing and observations outlined in the Cost Estimate Breakdown portion of Proposal PND22 -019 -01 Attachment II. B. The terms of payment are set forth in Article 4 of the Agreement and in the applicable governing provisions of Exhibit C. 6. Terms and Conditions Execution of this Task Order by Owner and Engineer shall make it subject to the terms and conditions of the Agreement (as modified above), which Agreement is incorporated by this reference. Engineer is authorized to begin performance upon its receipt of a copy of this Task Order signed by Owner. The Effective Date of this Task Order is to be determined Task Order Form EICDC® E -505, Agreement Between Owner and Engineer for Professional Services — Task Order Edition. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 OWNER: By: ' Kathryn Woodlee Print Name: City Engineer Title: DESIGNATED REPRESENTATIVE FOR TASK ORDER: John Nowak, P.E. Name: Title: Engineer 1400 Schertz Pkwy, 78155 Address: E -Mail jnowak @schertz.com Address: Phone: 210- 619 -1800 ENGINEER: By: Print Name: R. Blake Wright. P. E. Title: Associate DESIGNATED REPRESENTATIVE FOR TASK ORDER: Name: R. Blake Wright. P. E. Title: Associate Address: 211 Trade Center Drive. Suite 300 E -Mail Address: b�ht @rkci.com Phone: 830.214.0544 Task Order Form E)CDC® E -505, Agreement Between Owner and Engineer for Professional Services — Task Order Edition. Copyright © 2014 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Proposal No. PND22- 019 -01 April 26, 2022 LArpa., John Nowak City of Schertz 10 Commercial Place, Bldg 2 Schertz, Texas 78154 RE: Construction Materials Observation and Testing Services Tri- County Parkway— Cement Treated Base Schertz, Texas Dear Mr. Nowak: Attachment I R A B A 1 KISTNER 211 Trade Center, Suite 300 New Braunfels, TX 78130 P 830.214.0544 F 830.214.0627 TBPE Firm F -3257 Thank you for selecting Raba Kistner, Inc. (RKI) as your Construction Materials Testing Company on the Tri County Parkway Project. Our opinion of probable cost of services for this project is $16,289.00. Our proposed scope of services and estimated item quantities are based upon our interpretation of the project plans and specifications, and are with the aide of the general contractor's schedule. We propose to perform only one cement - treated base (CTB) Proctor and associated strength tests once per week or any time there appears to be a material change. The scope and quantity of services provided will be dependent upon services actually required by you or your representatives. Charges will be assessed only for actual services rendered. All services authorized are requested by you or your representatives in excess of the quantities of observation and testing services shown herein will be charged at the appropriate unit rate for such services. Charges will be invoiced on a monthly basis and will show a summary total of services rendered for each service category. Invoices will be submitted monthly for work in progress in our standard format. All parties hereby agree that this contract upon acceptance will be performable in Comal and Guadalupe Counties, Texas. We appreciate the opportunity of submitting this proposal and look forward to working with you in the development of this project, which will be carried out in accordance with this letter and the following attachments: Attachment Description I Fee Structure and Standard Charges II Fee Estimate Breakdown III Report Distribution List IV Standard Terms and Conditions Please return one signed copy of this letter contract to provide written authorization for our firm to complete work on the services outlined herein. Our invoices are due and payable upon receipt at P.O. Box 971037, Dallas, Texas 75397 -1037. CONSULTANTS • ENVIRONMENTAL • PROJECT MANAGEMENT • INFRASTRUCTURE Proposal No. PND22- 019 -01 April 26, 2022 W. A RABA KISTNER, INC. R. Blake Wright, PE Associate RBW /ajj Attachments RABA, Accepted By: (Signature) (Typed or Printed Name) (Title) (Date) Attachment I Proposal No. PND22- 019 -01 April 26, 2022 Basic Charges FEE STRUCTURE AND STANDARD CHARGES Proposed Materials and Observation Services for Tri- County Parkway — Cement Treated Base Schertz, Texas Attachment I 1. A vehicle travel charge will be assessed for round trip travel from our office to the project site, material supplier, etc. and back to our office. The charges for travel from our office to the project site and return to our office will be as follows: Travel Time (Round Trip) ...................................... ............................... 0.75 Hour(s) Vehicle Travel Charge ........................................... ............................... $ 15.00 /Trip 2. Service charges are based on the hourly rates stated herein and will be assessed from the time the Engineer or Technician leaves our office until he returns from the project. 3. "Normal' work hours are Monday through Friday between 7:00 a.m. and 6:00 p.m., including travel time to and from the site. Any engineering and /or technical services provided on Saturday, Sunday, Holidays and all work performed outside of "normal' work hours will be charged at an overtime rate multiplier of 1.4 times the hourly rate. Our total cost of services is based upon the assumption most services will be provided during "normal' work hours. Providing an excessive amount of services during days and /or hours requiring overtime rates may significantly increase the total cost of services shown herein. 4. Overtime charges will also be assessed after eight (8) continuous hours of services rendered during "normal" work hours. 5. Minimum 2 hours billed per visit to project site. 6. RKI will utilize the on -site initial field curing facilities provided by the contractor. The cost of providing and maintaining these initial curing facilities is not included in our proposal. Proposal No.: PND22- 019 -01 Date: April 26, 2022 Attachment II RK CMT Estimate Sheet New Braunfels Project Name: TO County Parkway - CTB Testing Proposal #: PND22- 019 -01 Client: City of Schertz Prepared By: C. Franks Client Contact: John Nowak Revised Date: 4/25/2022 Client Phone: 210.380.5574 Project Location: Corridor Parkway FM 3009 Client Email: jnowak @schertz.com TESTING /OBSERVATION ITEM ESTIMATED UNIT UNIT PRICE UNIT TOTAL SUBTOTAL QUANTITY SOILS Laboratory Testing Preparation Time 8 hour $ 48.00 $ 384.00 MNst sre Density Relationship, TxDOT or ASTM 8 each $ 260.00 $ 2,080.00 Cement Series Curve 1 set $ 472.00 $ 472.00 Molding/Breaking Stregth Samples 15 each $ 112.00 $ 1,680.00 Atterberg Limits 8 each $ 83.00 $ 664.00 Sieve Analysis 8 each $ 83.00 $ 664.00 Field Testing/Observation Nuclear Density Gauge Rental 35 trip $ 26.00 $ 910.00 Field Gradation 4 each $ 83.00 $ 332.00 Materials Technician 140 hour $ 48.00 $ 6,720.00 Materials Technician (overtime) 0 hour $ 74.20 $ - Vehicle Travel Charge 35 trip $ 15.00 $ 525.00 $14,431.00 PROJECT ADMINISTRATION Project Engineer (P.E.)- Geotechnical /Materials Engineer 10 hour $ 179.00 $ 1,790.00 Engineering Tech hour $ 48.00 $ - Vehicle Trip Charge trip $ 15.00 $ - Project Coordination 1 hr $ 68.00 $ 68.00 S 1,858.00 Fee Subtotall $ 16,289.00 TOTAL ESTIMATED FEE $ 16,289.00