R-06-02-23-10A1 - 2/23/2006RESOLUTION NO. R -06-02-23-10A1
WHEREAS, the City of Round Rock desires to retain professional
services for construction materials testing for the Kiphen Road, Phase
II Project, and
WHEREAS, Raba-Kistner-Brytest Consultants, Inc. has submitted a
Consulting Services Agreement for Construction Materials Testing to provide
said services, and
WHEREAS, the City Council desires to enter into said agreement
with Raba-Kistner-Brytest Consultants, Inc., Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Consulting Services Agreement for Construction
Materials Testing with Raba-Kistner-Brytest Consultants, Inc. for the
Kiphen Road Phase II Project, a copy of said agreement being attached
hereto as Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
RESOLVED this 23rd day of February, ! 06
ST:
e.n
City of Round Rock, Texas
CHRISTINE R. MARTINEZ, City Secret
@PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R60223A1.WPD/sc
Y
Agreement for Consulting Services for
Construction Materials Testing and Observation Services
for Kiphen Road Phase II Project
with Raba-Kistner-Brytest Consultants, Inc.
AGREEMENT made as of the
Thousand Six.
(In words, indicate day, month and year.)
( ) day of the month of in the year Two
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 testing and observation services, 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; 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:
(Identify 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 testing and observation services on site of the Kiphen Road 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:
(Idents 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.)
00096042/jkg
EXHIBIT
b
"A"
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 $55,110.00, 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 ($55,110.00) 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:
(Idents 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:
(Identify 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.)
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James R. Nuse, P.E.
City Manager
221 East Main Street
Round Rock, Texas 78664
1.1.33 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.
1.2.23 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.
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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
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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.
1.3.43 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.
13.6 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
1.3.73 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.
13.7.11 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.
13.8.2 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
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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.)
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 idents Principals and
classes employees, if required. Idents 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 Architect's 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
Consultant and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the
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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.
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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
CONSULTANT:
RABA-KISTNER-BRYTEST CONSULTANTS, INC.
a Texas corporation
By: By:
Printed Name:
Title:
ATTEST: APPROVED AS TO FORM:
Christine R. Martinez, City Secretary Stephan L. Sheets, City Attorney
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COST ESTIMATE BREAKDOWN
Kiphin Road, Phase I[
Round Rock, Texas
PAD06-004-00
January 20, 2006
TESTING/OBSERVATION ITEM
UNIT
PRICE
UNIT
ESTIMATED
QUANTITY
COST
EXTENSION
SOILS
Laboratory Testing
Moisture Density Realtionship, TxDOT or ASTM
$300,00
each
12
$ 3,600.00
(Includes Atterberg Limits and Sieve Analysis)
Field Testing/Observation
In -Place Nuclear Densities
No Charge
----
Materials Technician
$52.00
hour
360
$ 18,720.00
Vehicle Travel Charge
$25.00
each
120
$ 3,000,00
Subtotal
$ 25,320,00
CONCRETE
Laboratory Testing
Concrete Compressive Strength Cylinders
$20.00
each
192
$ 3,840.00
Field Testing/Observation
Materials Technician
$35.00
hour
144
$ 5,040,00
Vehicle Travel Charge
$25.00
trip
96
$ 2,400.00
Subtotal
$ 11,280.00
HMAC OBSERVATION AND TESTING
Laboratory Testing
Bag Sample (Extraction, Gradation, NC content,
$340.00
each
24
$ 8,160.00
Molding Specimens, Laboratory Density of Molded
Specimens, Stability Test, Hveem, Maximum
Theoretical Specific Gravity)
Density of Asphalt Cores
$80.00
each
24
$ 1,920.00
Field Testing/Observation
I
Materials Technician
$35.00
hour
72
$ 2,520.00
Vehicle Travel Charge
$25.00
trip
36
$ 900.00
Subtotal
$ 13,500.00
Reporting/Mailing Fee
10% of total cost
$ 5,010,00
GRAND TOTAL
$ 55,110.00
Proposal No. PAD06-004-00
January 20,2005
ATTACHMENT 1
RABA-KISTNER COMPANIES
STANDARD TERMS AND CONDITIONS
1. RABA-KISTNER (Raba-Kistner Consultants, Inc.; Raba-Kistner Consultants (SW), inc.; Raba-Kistner-Brytest,
Inc.; Raba-Kistner Infrastructure, Inc.) is being engaged by the CLIENT 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).
Raba-Kistner (hereafter referred to as R -K) provides a wide variety of services. Services provided by different
R -K companies or different departments therein, to the same Client, occasionally overlap. CLIENT acknowledges
that R -K has no obligation to research prior work by R -K for CLIENT or others, or work performed by R -K or
others at the proposed project site, regardless of the specific R -K companies, departments or office locations that
will be involved in the proposed work.
2. R -K 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 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 if by R -K pursuant to this Agreement are professional services involving only R -K's advice, judgment
and opinion, R -K will apply professional judgment in determining the extent to which R -K will comply with any
given standard identified in R -K's instruments of professional services. Unless otherwise stated in writing, such
compliance, referred to as "general compliance', specifically excludes consideration of any standard listed as a
reference in the text of those standards cited by R -K.
3. CLIENT will provide right -of -entry to the buildings and sites which are the subjects of R -K's services. CLIENT
represents that it possesses authority for such right -of -entry and that the building/site operator(s) possess the
necessary permits and licenses for current activities at the site.
4. The CLIENT will be responsible for providing the location of all underground utilities and other structures in the
vicinity of our borings. We 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 the CLIENT or a utility agency.
5. If materials are encountered in the field which are judged to be potentially hazardous or a danger to our
personnel, all field work will cease and the 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 appropriate revised
unit rates. The scope of work and cost estimate does not include the cost of containerizing any waste or cuttings
or their removal 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 will have such materials transported
to a licensed facility for final disposal using a manifest signed by the 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 at no time assumes ownership 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.
7. All samples obtained at the site will be managed by R -K. R -K will retain preservable samples and the residues
from testing of all samples that, in R -K's professional opinion, do not contain materials that are hazardous or
potentially hazardous, for 30 days after submission of its report. The samples and residues will be disposed of at
the end of the 30 day period.
Raba-Kistner
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Proposal No. PAD06-004-00
January 20,2005
In the event that in R -K's professional opinion, the samples contain potential constituents of concern, R -K will
return such samples and residues to CLIENT, or, using a manifest signed by CLIENT as generator, R -K 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 at no time assumes ownership of said samples.
8. R -K 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 "ail" asbestos in a survey would be both impractical and
cost prohibitive. If retained to conduct an asbestos survey, R -K will direct its efforts at locating accessible, friable
asbestos and non friable asbestos which, in R -K's professional opinion, 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. 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 which, in R -K's
professional opinion, have the potential for causing the most significant impact.
9. R -K may provide CLIENT with a written report in connection with the services performed. The report will present
such findings and conclusions as R -K may reasonably make with the information gathered while performing its
services. In preparing the report, R -K may review and interpret certain information provided to it by the CLIENT
or by third parties. R -K 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. The report
and other instruments of service are prepared for, and made available for the sole use of, the CLIENT, and the
contents thereof may not be used or relied upon by any other person without the express written authorization of
R -K. Any unauthorized use or distribution shall be at the CLIENT's sole risk and without liability to R -K.
R -K's reports, drawings, plans, specifications, and other project related documents and deliverables are
instruments of professional service ("instruments") developed by R -K in contemplation of a wide array of project-
specific
rojectspecific variables, including how the documents will be used and by whom. R -K shall be the owner and custodian
of the instruments, and shall take appropriate measures to help prevent unauthorized use of them. Accordingly,
during development of the scope of service, CLIENT and R -K shall together identify those who, in addition to
CLIENT, may use the various Instruments and for what purposes, and R -K shall copyright the instruments to
make illegal any unauthorized duplication, other reproduction or copying, quotation, or excerption of them.
Parties other than those identified by CLIENT and R -K may apply to use an instrument, using a form prepared by
R -K for that purpose. Others' use of an instrument shall be permitted only when CLIENT and R -K both so agree;
either shall have the right to forbid use by others. In addition, R -K shall make its permission contingent upon the
satisfaction of certain conditions when, in R -K's professional judgment, such a contingency is necessary.
10. CLIENT will indemnify R -K against any claims or costs which exceed the limitation on R -K's liability provided for
in this document, or result from acts or omissions of CLIENT. If litigation or threat of litigation ensues not
involving R -K, CLIENT agrees to bear the full cost for R -K to comply with applicable State law and any court
orders to provide access to R -K's files, personnel, facilities and equipment.
11. The person or entity responsible for performing the Work under the contract for Construction shall be defined as
the Contractor. R -K's site safety responsibilities are solely limited to the activities of R -K and R -K's employees
on the site. These responsibilities shall not be inferred by any party to mean that R -K 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, supervision of the Contractor's employees, and
sequencing of construction are also the sole and exclusive responsibility of the Contractor alone. CLIENT
warrants that these responsibilities will be made clear in CLIENT'S agreement with the Contractor; 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 harmless from any fine, penalty, claim, or liability for injury
or loss arising from CLIENT's and R -K's alleged failure to exercise site safety responsibility; and
CLIENT'S agreement with Contractor and all Subcontractors shall require the Contractor and Subcontractors to
make CLIENT and R -K additional insureds under the Contractor's and all Subcontractor's general liability
insurance policy, which insurance protection shall be primary protection for CLIENT and R -K, and shall hold
Raba-iKistner
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Proposal No. PAD06-004-00
January 20,2005
CLIENT and R -K harmless from claims, losses, and defense arising from the negligence of Contractor or
Subcontractor on any tier.
12. R -K'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, other than for professional
errors and omissions, will be limited to R -K's available general liability insurance coverage of $1,000,000. For
any damage on account of any error, omission, or other professional negligence, R -K's liability to CLIENT, or to
any third party, will be limited to a sum not to exceed $50,000 or R -K's project fee for that portion of R -K's work
found to be defective, whichever is greater.
13. Cancellation of the Agreement to which these terms and conditions apply may be made_ by either party for just
cause after 30 days' written notification of intent of cancellation is provided to the other party. in the event the
CLIENT elects to terminate the Agreement, R -K will be compensated in full for all services, materials, supplies,
and expenses incurred prior to the actual cancellation date of the Agreement. The CLIENT shall in any event
pay all amounts invoiced that the CLIENT does not dispute as provided herein.
14. If the Client falls to make payments when due or otherwise is in breach of this Agreement, R -K may suspend
performance of services upon 7 calendar days' notice to the Client. R -K shall have no liability whatsoever to the
Client for any costs or damages as a result of such suspension caused by any breach of this Agreement by the
Client. Upon payment in full by the Client, R -K shall resume services under this Agreement, and the time
schedule and compensation shall be equitably adjusted to compensate for the period of suspension plus any
other reasonable time and expense necessary for R -K to resume performance. If the Client fails to make
payment to R -K in accordance with the payment terms herein, this shall constitute a material breach of this
Agreement and shall be cause for termination of this Agreement by R -K. Payment of invoices shall not be
subject to any discounts or set -offs by the Client unless agreed to in writing by R -K. Payment to R -K for services
rendered and expenses incurred shall be due and payable regardless of any subsequent suspension or
termination of this Agreement by either party.
15. Ali claims, disputes, and other controversy between R -K and CLIENT arising out of or in any way related to the
services provided by R -K will be submitted to "alternative dispute resolution" (ADR) such as mediation, before
and as a condition precedent to other remedies provided by law. if a dispute at law arises related to these
services and that dispute requires litigation as provided above, then; CLIENT assents to personal jurisdiction in
the State of R -K's principal place of business; The claim will be brought and tried in judicial jurisdiction of the
court of the county where R -K's principal place of business is located, and CLIENT waives the right to remove
action to any other county or jurisdiction; and The prevailing party will be entitled to recovery of all reasonable
costs incurred, including staff time, court costs, attorneys' and expert witness fees, and other claim -related
expenses.
16. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in
performing hereunder if such delay or default is caused by conditions beyond its control "Force Majeure"
Including, but not limited to Acts of God, Government restrictions (Including the denial or cancellation of any
export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of
the party whose performance is affected. Force Majeure may not be claimed as a cause for delay in payment of
money due and payable hereunder.
17. 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.
18. 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.
Raba-Kistner
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MKT ROW to CR 122
1
DATE: February 16, 2006
SUBJECT: City Council Meeting - February 23, 2006
ITEM: 10.A.1. Consider a resolution authorizing the Mayor to execute a
Professional Services Contract with Raba-Kistner-Brytest
Consultants, Inc. for construction materials testing services for
Kiphen Road, Phase II.
Department: Transportation Services
Staff person: Thomas G. Martin, P.E., Director
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; Concrete compressive strength specimen sampling, testing and reporting; and,
Hot mix asphalt concrete (HMAC) testing.
Funding:
Cost: $55,110.00
Source of funds: 4B -RR Transportation Development Corporation
Outside Resources: Raba-Kistner-Brytest Consultants Inc.
Background Information:
Raba Kistner Brytest Consultants,
services for A.W. Grimes Boulevard
Drive Projects. They are familiar
requirements.
Public Comment: N/A
Inc., provided similar construction materials testing
Phase I and the Doublecreek Drive and Forest Creek
with City of Round Rock Procedures and submittal
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-r"Wehi)1-}Arge(23) day of the month of Febr'Li44i . Y
Thousand- e.s! % I
(bn words, indicate dqy, 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:
(bnchtde detailed description of Project.)
in the year Two
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 detennined later by mutual agreement.')
1.1.2 PROJECT PARAMETERS
1.1.2.1 The objective or use is:
(Identify 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:
((demi& 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:
((dent*Jy pertinent legal information, including, ifappropriate, land surveys and legal descriptions and reshictions of the site.)
00092969/jkg
,2-01-02-23-/041
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:
(/dent; if appropriate, milestone dates, durations orfast 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:
(ldent ' 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:
(Idently 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 it formation)
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 brown, identh' them by name and address.)
Unknown at this time.
1.1.3.4 Consultant's Designated Representatives are:
(List name, address and other n fbnnation)
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, ifk own, idem f' then: by nave 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.
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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 constriction, 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 ernplovees, and identifj' Principals and
classify employees, if required. Identifi'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.
(huserl rale of interest agreed upon.)
One percent (1%) per month
(Usury laws and requirements .order the Federal Trude in Lending Act, similar state and local consumer credit laws and other regulations at the
Owner's and Architect's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Specific legal
advice should be obtained ivith 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 Injmy
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:
Janes 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
CONSULT,4
RABA-KIS`Y R BR ' ST/CONSULT S, INC.
a Texas � � rations,
vw
y:
Printe
ATTEST:
ijju) .flOJJ&2,
Christine R Martinez, City Secretary
9
APP
D AS TO FO
Stephan d Sheets, City Attorney
COST ESTIMATE BREAKDOWN
A.W. Grimes !Boulevard, Phase 1I
Round Rock, Texas
TESTING/OBSERVATION ITEM
50118
EXHIBIT
HA,.
UNIT UNIT
PRiCE
PAD05-073-00
August 23. 2005
ESTIMATED COST
QUANTITY EXTENSION
Laboratory Testing
Moisture density Reallionshlp, TXDOT or ASTM
(Includes Atterbe • Limits and Sieve Anal sis)
Field Testing/Observation
in -Place Nuclear Densities
Materials Technician
Vehicle Travel Charge
$300.00 each 6 $ 1,800,00
Subtotal
hour
each
CONCRETE
Laboratory Testing
Concrete Com • essive Strength Cylinders
Field Testin •/Observation
Materials Technician
V°' i = T - Char•e
$20.00
Subtotal
$35.00
$25.00
DRILLED PIER OBSERVATION
Laboratory Testing
Concrete Compressive Strength Cylinders
Field Testing/Observation
Materials Technician
Vehicle Travel Char • e
$ 1,000.00
Subtotal
I-IMAC OBSERVATION AND TESTING
Laboreto Testing
Bag Sample (Extraction, Gradation, NC content,
Moldin a Specimens, Laboralo Densi of Molded
S. - amens, Stabllit Test Hveem, Maximum
Theoretical Specific Gravity
Density of Asphalt Cores
Field Testing/Observation
Materiais Technician
Vehicle Travel Cha e e
$35.00
$25.00
$ 2,100.00
$ 500.00
$ 3,800.00
$340.00
$ 1,280.00
Subtotal
Reporting/Malting Fee
GRAND TOTAL
$35.00
$25,00
hour
trip
10% of total cost
12aba-Kistner
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 perforin 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/j kg
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.