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CM-06-01-008Request for City Council/City Manager Action City Council ® City Manager Submit completed form for ALL City Manager and City Council approvals. Department Name: Transportation Services Contact Person: Project Project Coordinator. Assigned Attorney: For Administration Use ONLY Tag#: an- Cl(e-®1' ®-C7 3 Documents: Scan Date: Return to: Ric Borden Project Name: AW Grimes Bbrd Phase Cindy Fronk (CM ONLY)/Latha Kumar ContractorNendor. Reba -Kohler Consultants Bili Stabiein Thomas G. Martin, P.E., Director of TS Barbara &wlayare-Wells Council or City Manager 1/13/2006 Blue Sheet wording Funding Source: 48 Amount $42, 250.00 Action authorizing the City Manager to execute a contract with Raba-Kistner arytest Consultants Inc., for construction materials testing in conjunction with the AW Grimes Boulevard Project. x Finance Information Is Funding Required? 1 1 1 Yes © No initial Censtmction Contract Construction Contract Amendment # Change Order #` ( (Change in Quantity Untbreseen Circumstances Initial Professional Services Agreement b)xxxxxxX Supplemental Professional Svcs. Agr. # 1 $42, 250.00 ( 1 1 1 Amount 1 Finance Approval QFinance ❑Finance °Purchasing ❑sudget Purchasing/Service Agreement Purchase Order Item(s) to be purchased: Other (Please clearly identify action on tines below) L Olsen N/A E. Wilson HB Date Date Date Date 11/72005 11/4/2005 11/7/2005 For Submission to ALL City Council and City Manager Action J4eigs Project Mgr. Signature: Bill Stablein Date: 11/3/2005 Dept Director Signature*: Thom, G. Martin P.E., Director of TS Date: 11/3/2005 City Attorney Signature*: City Manager Signature: `►� `yj _ Date: 1-13 J `OU * Dept. Director and 41Approval and is required for ALL items requesting City Manager/City Council approval. Date: 00/d� Names Christine Martinez/Sherri Monore Noelle Jones/Cheryl Delaney Teresa Beldam Lathe Kumar/Laura Flores Vickie Moreno/Kathy Miller Shelley Gonzales/Rose McMillin Dale Ricklefs Vanessa Shrauner/Debbie Davila Rick White/Brenda Craytor Charles Meserole/Rosie Diaz Date: JANUARY 9, 2006 Subject: City Manager Action - January 13, 2005 Item: Action authorizing the City Manager to approve the contract with Raba Kistner Brytest Consultants Inc., for construction materials testing services in conjunction with A.W. Grimes Boulevard Phase II. Department: Transportation Services Staff person: Thomas G. Martin, P.E., Director of Transportation Services Justification: The scope of work includes the observation and testing to the following construction materials: Laboratory testing, in place field nuclear density testing, and proof rolling observation; Drilled pier observation; Concrete compressive strength specimen sampling, testing and reporting; and, Hot mix asphalt concrete (HMAC) testing. Funding: Cost: $42, 250.00 Source of funds: Transportation System Development Corporation Outside resources: Raba Kistner Brytest Consultants Inc. Background information: Raba Kistner Brytest Consultants, Inc., provided similar construction materials testing services for A.W. Grimes Boulevard Phase I and the Doublecreek Drive and Forest Creek Drive Projects. They are familiar with City of Round Rock Procedures and submittal requirements. Public comment: NA Sponsor: NA ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY. CITY OF ROUND ROCK INTEROFFICE MEMORANDUM DATE: January 10, 2006 TO: Steve Sheets City Attorney FROM: Thomas G. Martin, P.E. /Amr, G Transportation Services Director RE: Request for City Manager Action - A.W. Grimes Blvd Phase II — Raba- Kistner-Brytest Consultants, Inc. Attached please find signed Supplemental Agreement No. 1 with Raba-Kistner-Brytest Consultants, Inc., for work in conjunction with the aforementioned project.. A City Manager action request blue sheet and Finance approval action form are attached for approval. We would like to have these items approved as soon as possible. If there are any problems with this item or you have any questions, please contact either Bill Stablein or me at 218-5562. cc: Bill Stablein, Project Manager Project File Public Works Department Agreement for Consulting Services for Construction Materials Inspection and Testing for A. W. Grimes Boulevard Phase II Project with Raba-Kistner-Brytest Consultants, Inc. AGREEMENT made as of the - ')'@ l; rI-fj ( 13) day of the month of d L'(Y)1 in the year Two Thousand Five. j (g J (In words, indicate day, month and year.) BETWEEN the City of Round Rock, Texas, identified herein as "City": (Name, address and other information.) City of Round Rock 221 East Main Street Round Rock, Williamson and Travis Counties, Texas 78664 and Consultant, identified herein as "Consultant" or "Raba-Kistner-Brytest": (Name, address and other information.) Raba-Kistner-Brytest Consultants, Inc. 8200 Cameron Road, Suite C-154 Austin, Texas 78754 For the following Project: (Include detailed description of Project.) Consulting services including providing construction materials inspection and testing, such services to include (by way of illustration and not limitation) observation and testing of the following construction materials: laboratory testing, in-place field nuclear density testing, proofrolling observation; drilled pier observation; concrete compressive strength specimen sampling, testing, and reporting; and hot mix asphaltic concrete (HMAC) testing. All such services shall be on site of said project located in Round Rock, Texas. City and Consultant agree as follows: ARTICLE 1.1 INITIAL INFORMATION 1.1.1 This Agreement is based on the following information and assumptions. (Note the disposition for the following items by inserting the requested information or a statement such as "not applicable," "unknown at time of execution" or "to be determined later by mutual agreement.') 1.1.2 PROJECT PARAMETERS 1.1.2.1 The objective or use is: (Ident fy or describe, if appropriate, proposed use or goals.) Objectives include, but are not limited to, obtaining consulting services from Raba-Kistner-Brytest including providing construction materials inspection and testing on site of the A. W. Grimes Boulevard, Phase II project for the City of Round Rock. 1.1.2.2 The physical parameters are: (Identify or describe, if appropriate, size, location, dimensions, or other pertinent information, such as geotechnical reports about the site.) 1.1.2.3 City's Program is: (Identify documentation or state the manner in which the program will be developed.) 1.1.2.4 The legal parameters are: (Identify pertinent legal information, including, if appropriate, land surveys and legal descriptions and restrictions of the site) 00092969/jkg 0,t}1- O Cp - O - Cp O' 1.1.2.5 The financial parameters are as follows: The estimated fee for the projected cost for Raba-Kistner-Brytest's consulting services shall be $42,243.30, comprised of the following services: See Exhibit "A" attached hereto and incorporated herein for all appropriate purposes, the said Exhibit "A" containing "Cost Estimate Breakdown" attachment. • City will require the services of Raba-Kistner-Brytest on an on-call basis as scheduled by City's representatives. Raba-Kistner-Brytest requests twenty-four (24) hour notifications to properly schedule work. • A vehicle travel charge will be assessed for round-trip travel from Raba-Kistne-Brytest's offices to the project site, material supplier, etc. and then back to Raba-Kistner-Brytest's offices. The charges shall be fixed at $25.00 per round trip per vehicle. • Any engineering and/or technical services provided on Saturdays, Sundays, holidays, and all work in excess of "normal" work hours, as herein defined, will be charged at an overtime rate of 1.3 times the appropriate hourly rate. The parties evidence their understanding that the projected cost of consulting services ($42,243.30) is based on the assumption that most services will be provided during "normal" work hours, and that providing an excessive amount of services during days and/or hours requiring overtime rates may increase the total cost of services indicated herein. On-site cancellation outside of "normal" work hours will result in a four (4) -hour minimum labor charge. • "Normal" work hours are defined as between 8:00 am and 5:00 pm, including travel time to and from the site unless stated otherwise, Monday through Friday. A minimum of two (2) hours technician time will be assessed per call - out. Overtime charges will be assessed after eight (8) continuous hours of service rendered during "normal" work hours. • Invoices shall be submitted monthly for work done in standard format acceptable to City. Invoices are due and payable upon receipt, in accordance with Section 1.3.9.1 and Section 1.5.3 of this Agreement, at Post Office Box 971037, Dallas, TX 75397-1037. The parties evidence their understanding that this Agreement is performable in Williamson County, Texas. In the event that the State of Texas legislates a sales tax on professional services, the amount of tax applicable will be added to the appropriate service rate charged by Consultant. 1.1.2.6 The time parameters are: (Identify, if appropriate, milestone dates, durations or fast track scheduling.) Twenty-four (24) months from Consultant's receipt of City's written Notice to Proceed, with no prohibition against renewal by mutual agreement. 1.1.2.7 The proposed procurement or delivery method for the Project is: (Idents method such as competitive bid, negotiated contract, or construction management.) Consulting services herein are engaged by this negotiated Agreement. 1.1.2.8 Other parameters are: (Identify special characteristics or needs of the Project such as energy, environmental or historic preservation requirements.) 1.1.3 PROJECT TEAM 1.1.3.1 City's Designated Representative is: (List name, address and other information.) Bill Stablein Transportation Engineering Associate 212 Commerce Round Rock, Texas 78664 1.1.3.2 The persons or entity, in addition to City's Designated Representative, who is required to review Consultant's submittals to City are: (List name, address and other information.) 2 James R. Nuse, P.E. City Manager 221 East Main Street Round Rock, Texas 78664 1.1.3.3 City's other consultants and contractors are: (List discipline and, if known, identify them by name and address.) Unknown at this time. 1.1.3.4 Consultant's Designated Representatives are: (List name, address and other information) R. W. Boydston Manager, Construction Materials Testing 8200 Cameron Road, Suite C-154 Austin, Texas 78754 Gabriel Ornelas, Jr., P.E. Associate 8200 Cameron Road, Suite C-154 Austin, Texas 78754 1.1.3.5 The consultants retained at Consultant's expense are: (List discipline and, if known, identify them by name and address) 1.1.4 Other important initial information is: It is expressly understood and agreed by and between the parties hereto that any alteration in schedule, compensation and Change in Services shall be effected only by Supplemental Agreement hereto. Any such Supplemental Agreement to this Agreement must be duly authorized by City Council or City Manager action. ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES 1.2.1 City and Consultant shall cooperate with one another to fulfill their respective obligations under this Agreement. Both parties shall endeavor to maintain good working relationships. 1.2.2 OWNER'S RESPONSIBILITIES 1.2.2.1 Unless otherwise provided under this Agreement, City shall provide full information in a timely manner regarding requirements for and limitations on the Project. City shall furnish to Consultant, within fifteen (15) days after receipt of a written request, information necessary and relevant for Consultant to evaluate, give notice of or enforce rights. 1.2.2.2 City shall establish and periodically update the budget for the Project, including that portion allocated for the Cost of the Work, City's other costs, and reasonable contingencies related to all costs. 1.2.2.3 City's Designated Representative identified in Section 1.1.3 shall be authorized to act on City's behalf with respect to the Project. City or City's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Consultant in order to avoid unreasonable delay in the orderly and sequential progress of Consultant's services. 1.2.2.4 Unless otherwise provided in this Agreement, and if requested in writing, City shall furnish or pay for tests, inspections and reports required by law. 1.2.2.5 City shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet City's needs and interests. 3 1.2.2.6 Each party shall provide prompt written notice to the other if either becomes aware of any fault or defect in the Project, including any errors, omissions or inconsistencies. 1.2.3 CONSULTANT'S RESPONSIBILITIES 1.2.3.1 The services performed by Consultant shall be as enumerated in Article 1.4 and as enumerated elsewhere herein, in attached and accompanying documents, in exhibits, in supplemental documents, and in related documents. 1.2.3.2 Consultant's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. Consultant shall submit for City's approval a schedule for the performance of services which initially shall be consistent with the time periods established in this Agreement and which may be adjusted, if necessary and approved City, as the Project proceeds. This schedule shall include allowances for periods of time required for City's review, and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by City shall not, except for reasonable cause, be exceeded by Consultant or City. 1.2.3.3 Consultant, through its Designated Representative identified in Section 1.1.3.4, shall be the person authorized to act with respect to the Project. 1.2.3.4 Consultant shall maintain the confidentiality of information specifically designated as confidential by City, unless withholding such information would violate the law, create the risk of significant harm to the public or prevent Consultant from establishing a claim or defense in an adjudicatory proceeding. 1.2.3.5 Except with City's knowledge and consent, Consultant shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise Consultant's professional judgment with respect to this Project. 1.2.3.6 Consultant shall review laws, codes, and regulations applicable to his services. Consultant shall respond in the Project to requirements imposed by governmental authorities having jurisdiction over the Project. 1.2.3.7 Consultant shall be entitled to reasonably rely on the accuracy and completeness of services and information furnished by City. Each party shall provide prompt written notice to the other if either becomes aware of any errors, omissions or inconsistencies in such services or information. ARTICLE 1.3 TERMS AND CONDITIONS 1.3.1 COST OF THE WORK 1.3.1.1 The Cost of the Work shall be the total cost or, to the extent the Project is not completed, the estimated cost to City of all elements of the Project designed or specified by Consultant. 1.3.1.2 The Cost of the Work shall be as delineated herein in Section 1.1.2.5. 1.3.2 INSTRUMENTS OF SERVICE 1.3.2.1 Drawings, reports, specifications and other documents, including those in electronic form, prepared by Consultant are for use solely with respect to this Project. All Consultant's designs and work product under this Agreement, completed or partially completed, shall be the property of City to be used as City desires, without restriction on future use; by execution of this Agreement and in confirmation of the fee for services to be paid under this Agreement, Consultant hereby conveys, transfers and assigns to City all rights under the Federal Copyright Act of 1976 (or any successor copyright statute), as amended, all common law copyrights and all other intellectual property rights acknowledged by law in the Project designs and work product developed under this Agreement. Copies may be retained by Consultant. 1.3.2.2 Upon execution of this Agreement, Consultant grants to City permission to reproduce Consultant's Instruments of Service for purposes of constructing, using and maintaining the Project, provided that City shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. If and upon the date Consultant is adjudged in default of this Agreement, City is permitted to authorize other similarly credentialed persons to reproduce 4 and, where permitted by law, to make changes, corrections or additions to the Instruments of Service for the purposes of completing, using and maintaining the Project. 1.3.2.3 City shall not assign, delegate, sublicense, pledge or otherwise transfer any permission granted herein to another party without the prior written agreement of Consultant. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is permitted. Any unauthorized use of the Instruments of Service shall be at City's sole risk and without liability to Consultant. 1.3.3 CHANGE IN SERVICES 1.3.3.1 Change in Services of Consultant may be accomplished after execution of this Agreement, without invalidating the Agreement, if mutually agreed in writing. It is expressly understood and agreed by and between the parties hereto that any alteration in schedule, compensation and Change in Services shall be effected only by Supplemental Agreement hereto. Any such Supplemental Agreement to this contract must be duly authorized by City Council or City Manager action. 1.3.4 MEDIATION 1.3.4.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation. If such matter relates to or is the subject of a lien arising out of Consultant's services, Consultant may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation. 1.3.4.2 City and Consultant shall endeavor to resolve claims, disputes and other matters in question between them by mediation. Request for mediation shall be filed in writing with the other party to this Agreement, and mediation shall proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. 1.3.4.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 1.3.5 ARBITRATION 1.3.5.1 City and Consultant hereby expressly agree that no claims or disputes between City and Consultant arising out of or relating to this Agreement or a breach hereof shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1-14) or any applicable state arbitration statute, except that in the event that City is subject to an arbitration proceeding related to the Project, Consultant consents to be joined in the arbitration proceeding if Consultant's presence is required or requested by City for complete relief to be accorded in the arbitration proceeding. 1.3.6 CLAIMS FOR CONSEQUENTIAL DAMAGES 1.3.6.1 Consultant and City waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Section 1.3.8. 1.3.7 MISCELLANEOUS PROVISIONS 1.3.7.1 This Agreement shall be governed by the laws of the state of Texas, and venue shall lie in Williamson County, Texas. 1.3.7.2 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such statutes of limitations commence to run any later than the date when Consultant's services are substantially completed. 5 1.3.7.3 To the extent damages are covered by property insurance during construction, City and Consultant waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of insurance as delineated between City and Contractor. 1.3.7.4 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either City or Consultant. 1.3.7.5 If City requests Consultant to execute certificates, the proposed language of such certificates shall be submitted to Consultant for review at least fourteen (14) days prior to the requested dates of execution. Consultant shall not be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this Agreement. 1.3.7.6 City and Consultant, respectively, bind themselves, their successors, assigns and legal representatives to the other party to this Agreement and to the successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither City nor Consultant n shall assign this Agreement without the written consent of the other, except that City may assign this Agreement to an institutional lender providing financing for the Project. In such event, the lender shall assume City's rights and obligations under this Agreement. Consultant shall execute all consents reasonably required to facilitate such assignment. 1.3.7.7 Consultant shall comply with all applicable federal and state laws, the Charter and ordinances of the City of Round Rock, and with all applicable rules and regulations promulgated by all local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits and licenses required in the performance of the personal services contracted for herein. 1.3.7.8 Consultant will pay all taxes, if any, required by law arising by virtue of the personal services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. 1.3.7.9 Consultant covenants and represents that it will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the Project. 1.3.7.10 Consultant understands and agrees that time is of the essence and that any failure of Consultant to complete the services for each portion of this Agreement within the agreed schedule will constitute a material breach of this Agreement. 1.3.7.11 Neither City nor Consultant shall be deemed in violation of this Agreement if prevented from performing any obligations hereunder by reasons for which it or he are not responsible or circumstances beyond its or his control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. 1.3.8 TERMINATION OR SUSPENSION 1.3.8.1 If City fails to make payments to Consultant in substantial compliance with this Agreement, such failure may be considered substantial nonperformance and cause for suspension of performance of services under this Agreement. If Consultant elects to suspend services, prior to suspension of services, Consultant shall give thirty (30) days' written notice to City. In the event of a suspension of services, Consultant shall have no liability to City for delay or damage caused City because of such suspension of services. Before resuming services, Consultant shall be paid all non - disputed sums due prior to suspension. Consultant's fees for the remaining services and the time schedules shall be equitably adjusted. 1.3.8.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Consultant that City may cancel or indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the convenience of City, upon thirty (30) days' written notice to Consultant, with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Consultant shall invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, maps, cross sections and other data, designs and work related to the Project shall become the property of City upon termination of this Agreement, and shall be promptly delivered to City in a reasonably organized 6 form without restriction on future use. Should City subsequently contract with another person for continuation of services on the Project, Consultant shall cooperate in providing information. 1.3.8.3 Nothing contained in Section 1.3.8.2 shall require City to pay for any work which is unsatisfactory as determined by City's representative or which is not submitted in compliance with the terms of this Agreement. City shall not be required to make any payments to Consultant when Consultant is in default under this Agreement, nor shall this section constitute a waiver of any right, at law or at equity, which City may have if Consultant is in default, including the right to bring legal action for damages or to force specific performance of this Agreement. 1.3.9 PAYMENTS TO CONSULTANT 1.3.9.1 Payments on account of services rendered shall be made monthly upon presentation of Consultant's invoices. No deductions shall be made from Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments, or on account of the cost of Changes in the Work, other than those for which Consultant has been adjudged to be liable. ARTICLE 1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS 1.4.1 Enumeration of Parts of the Agreement. This Agreement represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both City and Consultant. 1.4.1.1 Other documents as follows: (List other documents, if any, forming part of the Agreement.) Exhibit "B" entitled "Standard Terms and Conditions." 1.4.2 Special Terms and Conditions. Special terms and conditions that modify this Agreement are as follows: ARTICLE 1.5 COMPENSATION 1.5.1 For Consultant's services as described herein, compensation shall be computed as follows: In accordance with Section 1.1.2.5 herein. 1.5.2 If the services of Consultant are changed as described in Section 1.3.3.1, the compensation may be adjusted. Such adjustment shall be calculated in an equitable manner. (Insert basis of compensation, including rates and multiples of Direct Personnel Expense for Principals and employees, and identify Principals and classify employees, if required. Identify specific services to which particular methods of compensation apply) 1.5.3 Payments are due and payable thirty (30) days from the date of Consultant's invoice, or not later than the time period required under the Texas Prompt Payment Act, whichever is later. Non -disputed amounts unpaid sixty (60) days after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of Consultant. (Insert rate of interest agreed upon.) One percent (1%) per month (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Architects principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Specific legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) ARTICLE 1.6 INDEMNIFICATION 1.6.1 Indemnification (Damage Claims). Consultant agrees to defend, indemnify and hold City, its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by Consultant's breach of any of the terms or provisions of this Agreement, or by any negligent act or omission of Consultant in the performance of this Agreement; except that the indemnity provided for in this section shall not apply to any liability resulting from the sole negligence of City, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both 7 Consultant and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available to City under Texas law and without waiving any defenses of the parties under Texas law. The provisions of this section are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. ARTICLE 1.7 INSURANCE 1.7.1 Insurance. Consultant, at his sole cost, shall purchase and maintain during the term and entire duration of this Agreement minimum insurance coverages in the types and amounts as follow: A.. Comprehensive General Liability Insurance with minimum Bodily Injury limits of $300,000 for each occurrence including like coverage for acts and omissions of subcontractors and contractual liability coverage; B. Property Damage Insurance with minimum limits of $50,000 for each occurrence including like coverage for acts and omissions of subcontractors and contractual liability coverage. C. Automobile Liability Insurance for all owned, non -owned, and hired vehicles with minimum limits for Bodily Injury of $100,000 for each person and $300,000 for each occurrence, and Property Damage minimum limits of $50,000 for each occurrence. Consultant shall require subcontractors to provide Automobile Liability Insurance with the same minimum limits. 1.7.2 Insurance Requirements. (1) All insurance shall be obtained by Consultant from a company authorized to do insurance business in Texas and otherwise acceptable to City. (2) Consultant shall not commence work at any site under this Agreement until he has obtained all required insurance and until such insurance has been approved by City. Consultant shall not allow any subcontractors to commence work until all insurance required has been obtained and approved. Approval of the insurance by City shall not relieve or decrease the liability of Consultant hereunder. 1.7.3 Insurance Policy Endorsements. Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non -renewal or any material change in coverage, a notice thereof shall be given to City by certified mail to: James R. Nuse, P.E. City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. (3) The terms "City" or "City of Round Rock" shall include all authorities, Boards, Commissions, Departments, and officers of City and the individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such future coverage, or to City's Self -Insured Retentions of whatever nature. 1.7.3 Cost of Insurance. The cost of insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such coverage in force to be filed with City. 8 IN WITNESS WHEREOF, the City of Round Rock has caused this Agreement to be signed in its corporate name by its Mayor or City Manager, duly authorized to execute the same in its behalf, and by the duly authorized representative of Raba-Kistner-Brytest Consultants, Inc., with both parties binding themselves, their successors and assigns and legal representatives for the faithful and full performance of the terms and provisions of this Agreement. OWNER: CITY OF ROUND ROCK, TEXAS TTEST: Christine R. Martinez, City Secretary 9 CONSULTANT: RABA-KISTNER-BRYTEST CONSULTANTS, INC. a Texas corporation By Prin eeName: GQV, • r ! 3 . Title: t;S S SO C a APP' I V D AS TO FORM. Stephan . Sheets, City Attorney . Cosy ESTIMATE BREAKDOWN A.W. Grimes Boulevard, Phase II Round Rock, Texas A B.0HAfi EXHIBIT PAfJ05-073-00 August 23, 2005 TESTING/OBSERVATION ITEM Laborato Testing Moisture Densit Realtianshlp, TxDOT or ASTM (Includes Atterbe • Limits and Sieve Analysis) Field Testing/Observation In -Place Nuclear Densities Vehicle Travel Charge SOILS MEM ESTIMATED QUANTITY COST 111111.11111111111.11111111.111111111.111111.11111 � EXTENSION 1,500.00 11 $� 1111.1.1111111.1.1.1111111111111.11111111111111 NoCharge 1111.1111111111111111111111111=11 $52.00 $ 15,026,00 hour t za9 $25.00 SubEotat $ 1,800.00 _M $ 1 CONCRETE���� Field Testin./Observation 125 $� 2� 5� D�� Emmiti $35.00 hour 150 $� trip 40 $ 1,000.00 Subtotal I $IIIIIIIMIMIIIIIINIIIMIMIIIIIMMIIINKMII8,750.00 MIIIIIIII DRILLED PIER OBSERVATION ��� hour � $� 2 1�0� Laboratory Testing Concrete Compressive Strength Cylinders Vehicle Travel Charge $25.00 Laboratory Testing Concrete Compressive Strength C indars Field Testing/Observation WiZEOMMEI Vehicle Travel Charge Subtotal HMAC OBSERVATION AND TESTING Laborato Testing Sag Sample (Extraction, Gradation, NC content, Moldin • Specimens, Laborato Densi of Molded S• cimens, Stability Test, Hveem, Maximum Theoretical Specific Gravit Denslt of As • halt Cores $35.00 $25.00 $340.00 Field Testing/ObservatIon $�"� $ 1,280.00 S3a0° hour 11111111111.111., 50 50 $ 1,000.00 each 20 16 $ 3,800.00 $ 5,440,00 $25.00 annumminimmum•Subtotal $ 75.00 =1.11 $ immumimmommuniRe Feedof tomitalWl. 1.1.1 $3,840.301111.1111111� �� $ 42,243.30 GRAND TOTAL EXHIBIT "B" RABA-KISTNER-BRYTEST ADDITIONAL TERMS AND CONDITIONS 1. Raba-Kistner-Brytest Consultants, Inc. (R -K -B) is being engaged by CLIENT (City of Round Rock, Texas) to render professional services involving various aspects of design, construction observation, or the condition of various building, site, and/or environmental materials, which may contain or be contaminated by hazardous materials and asbestos containing materials (ACM). 2. R -K -B will perform its services in accordance with the standard of care and diligence normally practiced by recognized professional firms in performing services of a similar nature, in the same locality, under similar circumstances. CLIENT expressly acknowledges that R -K -B makes no other warranties or guarantees, expressed or implied, regarding the services set forth herein. CLIENT expressly acknowledges that all of the services provided to it by R -K -B pursuant to this Agreement are professional services involving only R -K -B's advice, judgment and opinion. 3. CLIENT will provide right -of -entry to the sites which are the subjects of R -K -B's services. CLIENT represents that it possesses authority for such right -of -entry and that the site operator(s) possess the necessary permits and licenses for current activities at the site. 4. R -K -B will be responsible for providing the location of all underground utilities and other structures in the vicinity of its borings. R -K -B cannot accept responsibility and will not be liable for penetrating any underground utility, underground storage tank, or other subsurface condition not previously identified and located, or improperly located, by CLIENT or a utility agency. 5. If materials are encountered in the field which are judged to be potentially hazardous or a danger to personnel, all field work will cease and CLIENT will be notified. Subsequent work on the project will then be conducted only with specific additional authorization from the CLIENT and will be charged at agreed appropriate revised unit rates. The scope of work and cost estimate does not include removal of any waste or cuttings from the site. Such materials will be containerized and left at the site. The results of sample analyses or other information will be used to render a professional opinion regarding the nature of materials left on site. If this information indicates the materials are hazardous or potentially hazardous, and if CLIENT does not wish the waste or drill cuttings to be left on site, R -K -B will have such materials transported to a licensed facility for final disposal using a manifest signed by CLIENT as generator. CLIENT agrees to pay all costs associated with management, analyses, storage, transportation, and disposal of materials. CLIENT recognizes and agrees that R -K -B at no time assumes title to said materials. 6. The scope of work and cost estimate does not include costs incurred to provide access to sites which are inaccessible to our truck -mounted drill rigs and support vehicles. They also do not include costs incurred due to delays caused by inclement weather. 00093163/jkg 7. All samples obtained at the site will be managed by R -K -B. R -K -B will retain preservable samples and the residues from testing of all samples that, in R -K -B's professional opinion, do not contain materials that are hazardous or potentially hazardous, for 30 days after submission of its report, after which time the samples and residues will be disposed of. In the event that, in R -K -B's professional opinion, the samples contain hazardous constituents, R -K -B will return such samples and residues to CLIENT, or, using a manifest signed by CLIENT as generator, R -K -B will have such samples transported to a licensed facility for final disposal. CLIENT agrees to pay all costs associated with management, analyses, storage, transportation, and disposal of materials. CLIENT recognizes and agrees that R -K -B at no time assumes title to said samples. 8. R -K -B will be compensated largely on the basis of the time required in rendering these professional services, not on the basis of potential legal liabilities created by any risks associated from the hazardous materials and ACM. During its prime, asbestos was used in over 3,000 different products and can still be found in some products today. Consequently, attempts to locate and identify "all' asbestos in a survey would be both impractical and cost prohibitive. If retained to conduct an asbestos survey, R -K -B will direct its efforts at locating accessible, friable asbestos and non -friable asbestos which might become friable as a result of remodeling activities. Likewise, several thousand chemicals, wastes, and other materials have been designated as hazardous or toxic by various laws and regulations. Attempts to locate and identify "all" such materials in a survey would also be impractical. If retained to conduct a site assessment with respect to such materials. R -K will direct its efforts at locating the most significant sources, or potential sources, of such materials with potential for the most significant impact. 9. R -K -B will provide CLIENT with a written report in connection with the services performed. The report will present such findings and conclusions as R -K -B may reasonably make with the information gathered while performing its services. In preparing the report, R -K -B may review and interpret certain information provided to it by CLIENT or by third parties. R -K -B will not conduct an independent evaluation of the accuracy or completeness of such information and shall not be responsible for any errors or omissions contained in such information. 10. R -K -B's liability to CLIENT, or to any third party, for injury or damage to persons or property arising out of work performed for CLIENT and for which legal liability may be found to rest upon R -K -B, other than for professional errors and omissions, will be limited to R -K -B's general liability insurance coverage of $1,000,000.00. For any damage on account of any error, omission, or other professional negligence, R -K -B's liability to CLIENT, or to any third party, will be limited to a sum not to exceed fees. 11. The person or entity responsible for performing the Work under the contract for Construction shall be defined as the Contractor. R -K -B's site safety responsibilities are solely limited to the activities of R -K -B and R -K -B's employees on the site. These responsibilities shall not be inferred by any party to mean that R -K -B has responsibility for site safety for any reason. Safety in, on or about the site is the sole and exclusive responsibility of the Contractor alone. The Contractor's methods of work performance, superintendence of the Contractor's employees, and sequencing of construction are also the sole and exclusive responsibility of the Contractor alone. CLIENT warrants that: 1) these responsibilities will be made clear in CLIENT'S agreement with the Contractor; 2) CLIENT'S agreement with the Contractor shall require the Contractor, to the extent of Contractor's negligence, to indemnify, defend and hold CLIENT and R -K- B harmless from any fine, penalty, claim, or liability for injury or loss arising from CLIENT'S and R -K -B's alleged failure to exercise site safety responsibility; and 3) CLIENT'S agreement with Contractor shall require the Contractor to make CLIENT and R -K -B additional insureds under the Contractor's general liability insurance policy, which insurance protection shall be primary protection for CLIENT and R -K -B, and shall hold CLIENT and R -K- B harmless from claims, losses, and defense arising from the negligence of Contractor or subcontractor on any tier. 12. Each provision of this Agreement is intended to be several. If any terms or provisions of this agreement shall be held to be invalid, illegal, or unenforceable of 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 provision the maximum permissible effect and application intended. 13. This Agreement, and all of its attachments, constitutes the entire, integrated Agreement between the parties to it, and this Agreement superceded 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 and executed in conformity with the provisions contained in the Agreement.