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Ordinance No. 15,064 ORDINANCE NO. 15,064 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS, AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH KIMLEY- HORN AND ASSOCIATES, INC., FOR PRELIMINARY DESIGN SERVICES FOR THE WAYNE GRAY SPORTS COMPLEX,TURF AND PARKING IMPROVEMENTS PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE HUNDRED FORTY-FOUR THOUSAND AND NOI100 DOLLARS ($144,000.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ************************************************************************************* BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS: Section 1: That the City Council of the City of Baytown,Texas,hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Professional Services Agreement with Kimley- Horn and Associates, Inc., for preliminary design services for the Wayne Gray Sports Complex,Turf and Parking Improvements Project. A copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Kimley-Horn and Associates,Inc.,in an amount not to exceed ONE HUNDRED FORTY-FOUR THOUSAND AND NO 100 DOLLARS($144,000.00)for professional services in accordance with the agreement authorized in Section 1 hereinabove. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by FIFTY THOUSAND AND NOI100 DOLLARS($50,000.00)or less,provided that the amount authorized in Section 2 hereof may not be increased or decreased by more than twenty-five percent (25°b). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 140'day of April,2022. pYTOlN� DON CAPETILLO, Mayor ANGELA ACKSON,Cit •` .co vN• .• . � APPROVED AS TO FORM: OF "r� 2__� - TREVOR FANNING, Interim City Attorney R:Karen Anderson ORDINANCES\2022\2022.04.14\PSAwrthKimleyHomWayneGraySportsComplexProject.docx EXHIBIT "A" AGREEMENT FOR CONSULTING SERVICES STATE OF TEXAS § COUNTY OF HARRIS § This Agreement (this "Agreement") entered into by and between Kimley-Horn and Associates, Inc. (hereinafter "Consultant") and the City of Baytown, a home-rule municipality located in Harris and Chambers Counties, Texas (the "City"). 1. Scope of Services/Consultant Fees This Agreement authorizes Consultant to perform Professional services for Wayne Gray Sports Complex, Turf and Parking Improvements Project (the "Work") for and on behalf of the City. The scope of the Work is detailed in Exhibit "A." The compensation and professional fees for Consultant and its subconsultants is more particularly described in Exhibit "B" and shall not exceed ONE HUNDRED FORTY FOUR THOUSAND AND N0/100 DOLLARS ($144,000.00). The time schedules for the Work are specified in Exhibit "C." Each of these Exhibits "A" through "C" are incorporated into this Agreement by reference for all purposes. 2. Compensation and Professional Fees a. The City shall pay Consultant in installments based upon monthly progress reports and detailed invoices submitted by the Consultant based upon the following: 1. Design Phase Services (Lump Sum)................................................$144,000.00 2. Bid Phase Services(Hourly Not to Exceed)...............................................$0.00 3. Construction Phase Services (Hourly Not to Exceed)................................$0.00 4. Additional Services (Lump Sum)..............................................................$0.00 (These services require independent and specific advance,written authorization) 5. Reimbursable Expenses(Not to Exceed)....................................................$0.00 6. Total................................................................................................$144,000.00 b. For an agreed contract amount identified as "Lump Sum," "Not to Exceed" and "Reimbursable," Consultant shall not exceed the fixed contractual amount without written authorization in the form of a Contract amendment. C. Reimbursable Expenses, as shown in Exhibit "B" are itemized by work category. Reimbursable Expenses shall be invoiced AT COST, without subsequent markup by Consultant. All invoices containing a request for Reimbursable Expenses shall include copies of the original expense receipts itemized per allowable category. (1) Allowable reimbursable Expenses include: (a) Hard copy reproductions,copies, and/or binding costs; (b) Postage; Agreement for Consulting Services,Page 1 (c) Mileage, for travel from Consultant's local office (within a 25-mile radius) to meetings the City or job-site. Mileage shall be charged at the current IRS rates; (d) Travel Expenses, mileage from local office to State or federal regulatory agency office beyond 100miles; and (e) Lodging expenses for destinations beyond 100 miles from Consultant's local office AND when business hours exceed eight hours within one business day OR when Consultant's services require more than one eight-hour day at the destination; provided such expenses has been approved in writing by the City. (2) Disallowed Expenses include travel expenses for professional expertise traveling into the Greater Houston Area from Consultant's office outside the Greater Houston Area. d. Consultant shall invoice based upon total services actually completed during the applicable month. Invoices and all required or requested backup information shall be tendered no more often than once a month. Consultant shall not invoice the City for services or expenses that were incurred more than sixty (60) days before the date of the invoice. Failure to timely invoice the City for services or expenses shall result in Consultant's invoice being denied. e. In the event of a disputed or contested invoice, the City may withhold from payment that portion so disputed or contested, and the undisputed portion will be paid. 3. Personnel of Consultant a. Consultant's Project Manager Consultant shall designate Kristina Malek, P.L.A, to serve as Project Manager for the Work performed under this Agreement. Any change of Project Manager shall require thirty days' advance written approval from the City's Representative. b. Licensed and Registered Architects/Engineers Consultant shall keep a full-time registered architects and/or engineers licensed in the State of Texas on staff and assigned to the Work for the duration of its performance of the Work. C. Data on Consultant's Employees Prior to commencement of the Work, Consultant shall forward to the City a detailed resume of the personnel that will be assigned to the Work. Such personnel shall include, but not be limited to, architects and/or engineers as applicable. AF-reement for Professional Services,Page 2 d. Rejection of Consultant's Employees The City reserves the right to approve or reject from the Work any employees of Consultant. 4. Designation and Duties of the City's Representative a. The City's Director of Public Works and Engineering or his designee shall act as the City's Representative. b. The City's Representative shall use his best efforts to provide nonconfidential City records for Consultant's usage on the Work and to provide access to City's property and easements. However, the City does not guarantee the accuracy or correctness of the documents so provided. Notwithstanding the foregoing, Professional shall be entitled to use and rely upon information provided by the City in performing the services required under this Agreement only to the extent and level specified by the City in writing for each document provided. Nothing contained herein shall be construed to require the City to provide such records in any certain format. The format in which the existing data and documentation will be provided shall be at the sole discretion of the City. 5. Standards of Performance a. Consultant shall perform all services under this Agreement with the care and skill ordinarily used by members of Consultant's profession practicing under the same or similar circumstances, time and locality. Opinion of probable cost shall be based upon the consultant's experience and represent its best judgement as an experienced and qualified professional. Each submittal of opinion of probable cost shall be commensurate with the project design. Consultant shall be responsible for the technical accuracy of its services and documents resulting therefrom, and the City shall not be responsible for discovering deficiencies therein. Consultant shall correct such deficiencies without additional compensation. b. Codes and Standards (1) All references to codes, standards, environmental regulations and/or material specifications shall be to the latest revision, including all effective supplements or addenda thereto, as of the date that the order for any necessary equipment is made by the City or that the construction specified is bid by the City. (2) If any such equipment is specially manufactured, it shall be identified to the City, and the Contractor and the Seller shall present sufficient data to the City to support the design and the suitability of the equipment. A eement for Professional Services,Page 3 (3) All materials specified on any City project shall be in accordance with City,ASTM, ACI, and AASHTO specifications, and with other recognized standards. Proprietary material or other materials for which no generally recognized standards exist may be used provided there has been at least five years of proven experience in the field, and such satisfactory documentation has been approved by the City's Representative. (4) The Work shall be designed and furnished in accordance with the most current codes and/or standards adopted by city, state, or federal government or in general custom and usage by the profession and shall comply Texas Department of Licensing and Regulation's rules and regulations, including the Texas Accessibility Standards. (5) The codes and standards used in the profession set forth minimum requirements. These may be exceeded by the Contractor or Consultant if superior methods are available for successful operation of equipment and/or for the construction project on which the Work is performed. Any alternative codes or regulations used shall have requirements that are equivalent or better than those in the above listed codes and regulations. Consultant shall state the alternative codes and regulations used. (6) Consultant agrees the services it provides as an experienced and qualified architect/engineer will reflect the professional standards, procedures and performances common in the industry for this project. Consultant further agrees that any analysis, reports, preparation of drawings, the designation or selection of materials and equipment, the selection and supervision of personnel and the performance of other services under this contract will be pursuant to the standard of performance common in the profession. (7) Consultant shall promptly correct any defective analysis caused by Consultant at no cost to City. The City's approval, acceptance, use of or payment for all or any part of Consultant's services hereunder or of the Work itself shall in no way alter Consultant's obligations or the City's rights under this Agreement. As applicable, Consultant shall provide the City with record "as-built" drawings relating to the Work, in an electronic format that is acceptable to the City. City shall be in receipt of record drawings, if applicable,prior to final payment. (8) Consultant has no control over the cost of labor, materials, equipment or services furnished by others, other than its subconsultants. Data projections and estimates are based upon Consultant's opinion based on experience and judgment. Consultant cannot and does not guarantee that actual costs and/or quantities realized will vary from the data projections and estimates prepared by Consultant. Agreement for Professional Services,Page 4 (9) Consultant shall submit all final construction documents in both hard copy and electronic format. Plans shall be AutoCAD compatible and all other documents shall be Microsoft Office compatible. The software versions used shall be compatible to current City standards. Other support documents for example structural calculations, drainage reports and geotechnical reports, shall be submitted in hard copy only. All Record Drawings electronic files shall be submitted to the City in PDF/TIF format. 6. Schedule Consultant shall not proceed with the Work or any stage thereof until written notice to proceed is provided by the City's Representative. Consultant's obligation to render services specified in Exhibit B will be for the entire period necessary for the final completion of the construction of the Work. If the Consultant contributes to any delay in the schedule, Consultant will have no right to seek and shall not be entitled to any additional compensation. 7. Instruments of Service Upon execution of this Agreement, Consultant grants to the City an ownership interest in the Instruments of Service. Consultant shall obtain similar interests from the City and Consultant's consultants consistent with this Agreement. As noted in Articles 5 & 11, Consultant shall be required to tender to City all Instruments of Service. With such ownership interest, it is expressly understood by the parties hereto that the City may use the Instruments of Service for any purposes which the City sees fit, including, but not limited to, subsequent construction, reconstruction, alteration, and/or repairs of the Project. As a condition to the City's use of the Instruments of Service, the City hereby expressly agrees to remove Consultant's name and all references to Consultant and its consultants from the Documents. Provided that this Agreement is not terminated for cause by the City, the City shall release any and all claims which the City could make arising out of or in connection with any reuse of the documents by the City. 8. Insurance Consultant shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to person or damages to property which may arise from or in connection with the performance of the Work hereunder by Consultant, its agents,representatives,volunteers,employees or subconsultants. a. Consultant's insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self-insurance maintained by the City, its officials, employees or agents shall be considered in excess of Consultant's insurance and shall not contribute to it. Further, Consultant shall include all subconsultants, agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subconsultants and assigns shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: Agreement for Professional Services,Page 5 1. Commercial General Liability ■ General Aggregate: $2,000,000 ■ Products&Completed Operations Aggregate: $2,000,000 ■ Personal&Advertising Injury: $1,000,000 ■ Per Occurrence: $1,000,000 ■ Fire Damage$500,000 ■ Waiver of Subrogation required. ■ Coverage shall be broad form. ■ No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy ■ Combined Single Limits: $1,000,000 ■ Coverage for"Any Auto" ■ Waiver of Subrogation required. 3. Errors and Omissions ■ Limit: $1,000,000 for this project. ■ For all architects,engineers, and/or design companies ■ Claims-made form is acceptable ■ Coverage will be in force for one (1) year after completion of the Project. ■ Waiver of Subrogation required. 4. Workers' Compensation ■ Statutory Limits ■ Employer's Liability $500,000 ■ Waiver of Subrogation required. b. The following shall be applicable to all policies of insurance required herein. 1. Insurance carrier for all liability policies must have an A.M. Best Rating of A:VIII or better. 2. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. 3. Liability policies must be on occurrence form. Errors and Omissions can be on claims-made form. 4. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by mail, return receipt requested,has been given to the City. Aueement for Professional Services,Page 6 5. The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Workers Compensation and Errors and Omissions Policies required herein. 6. Upon request and without cost to the City, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the City. 7. Upon request and without cost to the City, loss runs (claims listing) of any and/or all insurance coverages shall be fixrnished to the City. 8. All insurance required herein shall be secured and maintained in a company or companies satisfactory to the City, and shall be carried in the name of Consultant. Consultant shall provide copies of insurance policies and endorsements required hereunder to the City on or before the effective date of this Agreement. 9. Indemnification and Release CONSULTANT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE PROFESSIONAL OR THE CONSULTANT'S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE CONSULTANT EXERCISES CONTROL (COLLECTIVELY CONSULTANT'S PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH CONSULTANT AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF CONSULTANT'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS THE CONSULTANT'S PARTIES' INTENTIONAL Agreement for Professional Services,Page 7 TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF ANY PERSON OTHER THAN THE CONSULTANT'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT. By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. Consultant assumes full responsibility for its services performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with Consultant's services to be performed hereunder. This release shall apply with respect to Consultant's services regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 10. Subcontractors and Subconsultants Consultant shall receive written approval of the City's Representative prior to the use of any subcontractors or subconsultants. A copy of all proposed contracts with subconsultants and/or subcontractors shall be given to the City before execution of such contracts. 11. Termination of Consultant The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon written notice from the City Manager to Consultant of the City's election to do so. Furthermore, the City may immediately and without notice terminate this Agreement if Consultant breaches this Agreement. A breach of this Agreement shall include, but not be limited to,the following: Agreement for Professional Services,Page 8 (a) failing to pay insurance premiums, liens, claims or other charges; (b) failing to pay any payments due the city, state, or federal government from Consultant or its principals, including, but not limited to, any taxes, fees, assessments, liens, or any payments identified in this Agreement; (c) the institution of voluntary or involuntary bankruptcy proceeding against Consultant; (d) the dissolution of Consultant; (e) refusing or failing to prosecute the Work or any separable part, with the diligence that will ensure its completion within the time specified in this Agreement; (f) failing to complete Work within the time period specified in this Agreement; and/or (g) the violation of any provision of this Agreement. Upon delivery of any notice of termination required herein, Consultant shall discontinue all services in connection with the performance of the Agreement. Within ten(10) days after receipt of the notice of termination, Consultant shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services. At the same time that the final statement is tendered to the City, Consultant shall also tender to the City's Representative all of Consultant's instruments of service, including all drawings, special provisions, field survey notes, reports, estimates, and any and all other documents or work project generated by Consultant under this Agreement, whether complete or not, in an acceptable form and format together with all unused materials supplied by the City. No final payment will be made until all such instruments of service and materials supplied are so tendered. If this Agreement is terminated for cause, Consultant shall be liable for any damage to the City resulting therefrom. This liability includes any increased costs incurred by the City in completing Consultant's services. The rights and remedies of the City in this section are in addition to any other rights and remedies provided by law or under this Agreement. 12. Records Within ten days of the City's request and at no cost to the City, the City will be entitled to review and receive a copy of all documents that indicate work on the Project that is subject to this Agreement. 13. Supervision of Consultant Consultant is an independent contractor and the City neither reserves nor possesses any right to control the details of the Work performed by Consultant under the terms of this Agreement. 14. Billing The City shall have thirty (30) days to pay Consultant's invoices from the date of receipt of such invoices and necessary backup information. All invoices must identify with specificity the work or services performed and the date(s) of such work or services. In the event of a disputed or contested invoice, the parties understand and agree that the City may withhold the portion so contested, but the undisputed portion will be paid. Consultant shall invoice the City for work Agreement for Professional Services,Page 9 performed no more than once a month and may not invoice the City for work not performed. Invoices shall be received by the City no later than sixty calendar (60) days from the date Consultant and/or its subconsultants perform the services or incur the expense. Failure by Consultant to comply with this requirement shall result in Consultant's invoice being denied and the City being relieved from any liability for payment of the late invoice. 15. Indebtedness. If Consultant,at any time during the term of this Agreement, incurs a debt, as the word is defined in section 2-662 of the Code of Ordinances of the City of Baytown, it shall immediately notify the City's Director of Finance in writing. If the City's Director of Finance becomes aware that Consultant has incurred a debt, the City's Director of Finance shall immediately notify Consultant in writing. If Consultant does not pay the debt within 30 days of either such notification, the City's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to Consultant under this Agreement, and Consultant waives any recourse therefor. 16. Verifications. The Consultant makes the following verifications in accordance with Chapters 2271 and 2274 of the Texas Government Code: a. the Consultant does not boycott Israel and will not boycott Israel during the term of the contract to be entered into with the City of Baytown; b. the Consultant does not boycott energy companies and will not boycott energy companies during the term of the contract to be entered into with the City of Baytown; and c. the Consultant does not have a practice,policy, guidance,or directive that discriminates against a firearm entity or firearm trade association and will not discriminate during the term of the contract against a firearm entity or firearm trade association. 17. Reputation in the Community Consultant shall retain a high reputation in the community for providing professional architectural/engineering services. Consultant shall forward a copy of any current petition or complaint in any court of law which (a) asserts a claim for $50,000 or more for errors or omissions in providing architectural/engineering services and/or (b) seeks to deny Consultant the right to practice architecture/engineering or to perform any other services in the state of Texas. 18. Payroll and Basic Records a. Consultant shall maintain payrolls and basic payroll records during the course of the work performed under this Agreement and shall preserve them for a period of three years from the completion of the work called for under this Agreement for all personnel working on such work. Such records shall contain the name and address of each such employee, social security number, correct classification, hourly rates of wages paid, daily and weekly number of hours worked, deductions made and actual wages paid. Agreement for Professional Services,Page 10 b. Consultant shall make the records required to be maintained under the preceding subsection (a) of this section available at no cost to the City for inspection, copying or transcription or its authorized representatives within fifteen days of the City's request therefor. Consultant shall permit such representatives to interview Consultant's employees during working hours on the job. 19. Governing Law This Agreement has been made under and shall be governed by the laws of the state of Texas. The parties further agree that performance and all matters related thereto shall be in Harris County, Texas. 20. Notices Unless otherwise provided in this Agreement, any notice provided for or permitted to be given must be in writing and delivered in person or by depositing same in the United States mail, postpaid and registered or certified, and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party. Notice deposited in the mail as described above shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of three(3) days after it is so deposited. For the purpose of notice,the addresses of the parties shall be as follows unless properly changed as provided for herein below: For the City: CITY OF BAYTOWN Attn: City Manager P. O. Box 424 Baytown, Texas 77522-0424 For Consultant: Kimley-Horn and Associates, Inc. 11700 Katy Freeway Ste 800 Houston, TX 77079 Each party shall have the right from time to time at any time to change its respective address and each shall have the right to specify a new address, provided that at least fifteen (15) days' written notice is given of such new address to the other party. 21. No Third-Party Beneficiary This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit Consultant and the City only. No person or entity not a signatory to this Agreement shall be entitled to rely on Professional's performance of its services hereunder, and no right to assert a claim against Professional by assignment of indemnity rights or otherwise shall accrue to a third party as a result of this Agreement or the performance of Professional's services hereunder. Agreement for Professional Services,Page l l 22. No Right to Arbitration Notwithstanding anything to the contrary contained in this Agreement, the City and Consultant hereby agree that no claim or dispute between the City and Consultant arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, Consultant consents to be joined in the arbitration proceeding if Consultant's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 23. Waiver No waiver by either party to this Agreement of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 24. Complete Agreement This Agreement represents the entire and integrated agreement between the City and Consultant in regard to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either whether written or oral, on the subject matter hereof. This Agreement may only be amended by written instrument approved and executed by both of the parties. The City and Consultant accept and agree to these terms. 25. No Assignment Consultant may not sell or assign all or part interest in this Agreement to another party or parties without the prior express written approval of the City Manager of such sale or assignment. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City. 26. Headings The headings used in this Agreement are for general reference only and do not have special significance. 27. Severability All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. 28. Ambiguities In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 29. Authority The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he/she represents. Agreement for Professional Services,Page 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same Agreement on the day of 20 , the date of execution by the City Manager of the City of Baytown. CITY OF BAYTOWN RICHARD L. DAVIS, City Manager ATTEST: ANGELA JACKSON, City Clerk APPROVED AS TO FORM: TRFVOR FANNING, Interim City Attorney CONSULTANT: Kimley-Horn and Associates, Inc. (Company Name) 1-gAif A— a.,.] (, ignature) S�aF Q.Arnold (Printed Name) (Title) STATE OF TEXAS § 'CAA § COUNTY OF H S § Before me on this day personally appeared 4:vf� 19.A"VLD in his/her capacity as Jl6"►%fiV� of EINAL, on behalf of such PrImo' known to me; ACS&kW I Agreement for Professional Services,Page 13 ❑ proved to me on the oath of ; or ❑ proved to me through his/her current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} (check one) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this d f A&Ag!CAk _ , 2022. Notary Publi n and for the State of Texas R\Karen Horner\DocunlentsTiles\Engineering\Engineering Agreements'Forms\Forms 2021\COB grecment doc ` ' 110 VICKY BREWER ��,`"jAy PO. Notary Public,State of Texas Comm. Expires 05-16-2022 0;,;�`° Notary ID 129821969 At=reement for Professional Services.Page 14 EXHIBIT "A" SCOPE OF SERVICES PROJECT BACKGROUND Consultant understands the City would like to improve the Wayne Gray Sports Complex, shown in Map 1, in an effort to better serve the community's needs for recreation and tournament facilities. Proposed improvements include converting the existing turf infields (fields#548)to synthetic turf, adding additional parking to the east of the cricket field, addressing drainage impacts due to the proposed improvements, and adding other site improvements such as new fencing, netting and backstops. Consultant will perform the following tasks: TASK 1 —PROJECT MANAGEMENT Task 1.1 Project Management a. Data Collection i. Consultant will work with various City departments to collect the following available data: Record Drawings, GIS data, flood maps, existing plans / policies/standards, drainage model, and information regarding facilities, roadway and public improvements both existing and proposed. ii. Site visit to observe existing vegetation, topography, other visible natural features as well as surrounding land uses, site access and visible utilities. b. Staff Meetings with Capital Projects and Parks Department(five meetings), including: i. One(1) in person meeting to kickoff the project; ii. One (1) in person meeting to review the Revised Draft exhibits and technical memo; iii. One(1) in person meeting to review the Final exhibits and technical memo. iv. Two(2)virtual meetings as needed. c. Communication i. Coordination with City Project Manager and various departments (Capital Projects and Parks). Coordination will include email correspondence, phone calls and meetings. ii. Communicate project status with the City with the monthly invoice and with bi- weekly project status updates. TASK 2—SURVEY AND PLATTING Task 2.1 Boundary and Topographic Survey a. Through a subconsultant, Windrose Surveying and Land Services, LLC, Consultant will provide topographic and boundary survey. Survey includes: i. Surveyor will review and show all existing encumbrances as reflected in current title commitment provided by the City. ii. Topographic Survey will be performed on a 100' x 100' grid where available including all visible grade breaks and changes in elevation. Topographic survey will show all improvements, elevations, observable utilities located within the subject area. iii. All Horizontal Survey Control shall be referenced to the Texas State Plane Coordinate System, South Central Zone, NAD83, and surveyor shall provide X/Y Coordinates for all major property corners. iv. Vertical Topographic information will be based on the nearest existing City, County, or FEMA published Benchmark, and a minimum of 2 (two) temporary benchmarks will be established on-site at the time of survey. v. Utility information shown on the survey is based on visible above ground improvements and evidence found on-site at the time survey, coupled with markings from Digtess,and available record drawings from Harris County,and City at the time of survey. vi. Not included: abstracting subject property; review of oil, gas&mineral leases and rights as located within a current title commitment. Task 2.2 Platting a. Through a subconsultant, Windrose Surveying and Land Services, LLC, Consultant will provide platting for the subject property indicating reserves for the waterpark and Republic of Texas sites. Plat submission assumes no variance request or public hearing is necessary. TASK 3—GEOTECHNICAL INVESTIGATION Task 3.1 Geotechnical Investigation a. Through a subconsultant, Riner Engineering, Inc., Consultant will provide geotechnical investigation. Boring locations will be accessed by truck-mounted rid, and no clearing is needed for access. Task includes: i. Field Investigation Landside borings: includes nine borings totaling 90 feet of drilling. Number of Depth of Boring (feet) Location Borings 5 10 In the area of the proposed paving 4 10 In the area of proposed synthetic turf infields Subconsultant field personnel will drill the borings, obtain cohesive and non-cohesive soil samples with three-inch diameter Shelby tube samplers (ASTM D-1587)and two- inch diameter standard split-spoon samplers(ASTM D-1586), respectively. An engineering geologist or soils technician will extrude samples in the field, check the samples for consistency with a hand penetrometer, wrap to preserve condition, and return to the laboratory for testing. Subconsultant will prepare a log of each boring to document field activities and results. Subconsultant will stake the boring locations using normal taping procedures. Locations will be shown on the boring plan exhibit. At completion of drilling operations, subconsultant will backfill and plug bore holes with soil cuttings. ii. Laboratory Investigation: Subconsultant will perform laboratory tests on bore samples required for classification purposes, to determine strength characteristics, and to evaluate both the short- and long-term deformation and swell properties of the material. Testing,in accordance with standard procedures, will include moisture content, soil identification, liquid and plastic limit determinations, and unit weight determinations. The specific types and quantities of tests will be determined based on soil conditions encountered in the borings. M. Geotechnical Engineering Report: Subconsultant will prepare a geotechnical engineering report, sealed by a professional engineer, which will present the results of the field and laboratory data together with analysis of the results and recommendations. Subconsultant will provide a digitally signed and sealed report in electronic(Adobe PDF)format. The report will address: • soil and groundwater conditions encountered at the boring locations; • paving recommendations; • recommendations for horizontal and lateral earth pressures related to buried and retaining structures; • pipe bedding and backfill recommendations; • earthwork recommendations, including material and compaction requirements; and • construction considerations related to soil and groundwater conditions at the borings. TASK 4—DRAINAGE Task 4.1 Detention Pond Analysis a. Consultant will prepare a detention pond analysis for up to two (2) detention pond scenarios to modify the existing eastern detention pond. Modifications to the western detention pond (to the north of the Pirate's Bay Water Park) will not be considered. The scenarios studied as part of this task will include: • Modify existing detention pond for parking lot and turf field improvements • Modify existing detention pond for parking lot improvements only (assumes turf fields will self-detain to existing conditions) Consultant will delineate the drainage area of the existing detention pond. Drainage area delineation will be based on available record drawings, topographic information, and site observations. Existing condition peak flow for the 2-, 10-, and 100-year event will be calculated using the HCFCD Site Runoff Curves in the currently published HCFCD Policy, Criteria, and Procedure Manual (PCPM). Impervious cover will be based on aerial photography and available survey information. An existing condition pond inflow hydrograph will be developed using the Small Watershed Method described in the PCPM. The hydrograph will be routed through the existing detention pond using XPSWMM or equivalent hydraulic routing software. Existing pond outfall configuration and stage-storage relationship will be based on available record drawings and survey information. Consultant will modify the existing condition analysis for each scenario based on the proposed improvements. Drainage areas, impervious cover, and pond inflow hydrographs will be adjusted. Consultant will modify the detention pond stage-storage relationship and/or outfall structure configuration such that the proposed condition discharge into HCFCD Unit 0105-09-00 is equal to or less than existing condition for the 2-, 10-, and 100-year events. Consultant will summarize the modifications for each scenario on an exhibit that will be included in a technical memo (Task 5.2 and 5.4) for submittal to the City. Consultant understands this information will be used by the City to choose a scenario to implement as part of the project. The proposed pond modifications associated with the chosen scenario will be incorporated into the future construction drawings for the proposed improvements prepared under a separate contract. Detailed grading design associated with the pond improvements are not included in the fee associated with this task. Task 4.2 No Impact Study a. Following City selection of a detention scenario, Consultant will prepare a No Impact Study for submittal to the City of Baytown and Harris County Flood Control District (HCFCD). The No Impact Study will describe the hydrologic and hydraulic analysis associated with the proposed detention pond improvements. Consultant will summarize the results of Task 4.1 in a report for submittal to the City and HCFCD. The report will include the following: • Report Text • Drainage Area Map • Hydrologic Calculations • Pond Layout Sheets(prepared under a separate task) • Digital Files Consultant will submit the No Impact Study to the City and HCFCD electronically. Response to City and HCFCD comments will be performed as part of Task 4.3. Task 4.3 Comment Response a. Consultant will respond to City and HCFCD comments under this task. TASK 5—PRELIMINARY ENGINEERING REPORT(PER) Task 5.1 Turf Vendor Evaluation a. Consultant will contact up to four (4) vendors for the synthetic turf infields to gather specifications, design/build capabilities, and estimated construction costs for comparison of pros/cons.This information will be incorporated into the technical memo (Task 5.4). Consultant understands this information will be used by the City to choose a product to use as the basis of design in the development of future construction documents for the project. Task 5.2 Schematic Design a. Consultant will prepare a 30% Schematic Design drawings of the improvements. The plans will illustrate the general scope, scale, theme, and relationship of various design components in a color rendered site plan (on a 24"x36" sheet). The 30% Schematic Design Plan will illustrate proposed: • Field#5-8 synthetic turf infields • Additional parking and reconfigured access to the site • Reconfigured parking and access for the Republic of Texas • Fencing, netting and backstop improvements • Detention pond modifications • One line utility locations • Topography within established limits of the project • Location of existing facilities and any necessary relocation b. This task includes two (2) submittals to the City for comment. Consultant will incorporate ordinary and reasonable comments into a Revised Draft and Final 30% Schematic Design drawing submittal. Additional revisions beyond one round as provided in this scope may be requested for an additional service. A comment response letter with narrative on how each comment has been addressed will be included with each submittal. Task 5.3 OPCC and Phasing Diagram a. Consultant will prepare the Preliminary Opinion of Probable Construction Cost(OPCC) with the Revised Draft and Final 30%Schematic Design drawing submittal. Consultant has no control over the cost of labor, materials, equipment, or over the Contractor's methods of determining prices or over competitive bidding or market conditions. OPCCs provided herein are based on the information known to Consultant at this time and represent only Consultant's judgment as a design professional familiar with the construction industry. Consultant cannot and does not guarantee that proposals, bids, or actual construction costs will not vary from its opinions of probable costs. b. Based on the Revised Draft OPCC, Consultant will prepare an exhibit identifying proposed construction phasing overlaid on top of the Final 30% Schematic Design drawing submittal. Task 5.4 Technical Memo a. Consultant will prepare a technical memo to include: a. Project understanding, background, and assumptions b. Detention Pond Analysis Drainage Modification Summary from Task 4.1 c. Schematic Design Exhibit from Task 5.2 d. OPCC Exhibit from Task 5.3 e. Phasing Exhibit from Task 5.3 b. This task includes two (2) submittals to the City for comment. Consultant will incorporate ordinary and reasonable comments into a Revised Draft and Final submittal. Additional revisions beyond one round as provided in this scope may be requested for an additional service. A comment response letter with narrative on how each comment has been addressed will be included with each submittal. ADDITIONAL SERVICES Consultant can provide additional services, if needed, upon the City's issuance of a written change in scope. Any additional amounts paid to Consultant as a result of the material change to the Scope of the Project shall be agreed upon in writing by both parties before the services are performed. F _ a ry� e m� �� 111(((��� dry$ �a•SC n.o n. . M M M M N M N N NNN NNN N qS� HNN � NNN N �.jN /•! o ena ryq � gvgpi�D� � !S� O Vl H H N N H N N H M M Lq v b N OO ^ N ! b N N m vl.e a <v e N q vl V1 N M M N N H H M ry N M N M N H H N M N N H N N P N •q_, O N N N N M N M PQ N ter/ " $,8d fi o 0 0 0 og '��• LL e4,yM (a� o "� oN oN oN S- HM ."+�•' . O TAco LL i LL C $ L W H-1 F( Epp Epp N p <y I� LL 9 4jjV�1� N 8w o X O s 1 3!: W `W 3L N H N N 8Q 3GG O O 0 O N O N H. H �Np vt N N d_ < N 5 C n v'iF m� Hn ° e yN ,2•�. O p3p N N � 5 gg S y yqp o v VI C C5 V E U W LL -3px U ii E � u 0 3 P Y d O NNN V NN ZU Faioj {L go C00 W 3 doh w 0 a� a� co a F 0 C/) U) C/) U) � f lc .a a 0 0 0 0 0 0 0 0 0 0 � 00 00 o .-� %.p 64 m N 69 64 69 69 G CL H aw w a w e 6 L E� d p M � O PQ � A O N F o L O N X F M w O °? C N A q Q 0 O 8 N td cd (u N U Clp" bc A c f y " ; '� a � Ht) C7 � C p A � 3 � N m -:r h F EXHIBIT C-SCHEDULE Page 1 D Task Task Name Duration Start .,.F Pied. 135r2M! girs pie it M" Mod! Feb Mar ap. M . iya ha ayg 5.4, On N. 1 Wayne Gray Sports Complex-Turf and Parking 161 days Thu 2/24/22 Fri 10/7/22 Improvements PER Schedule(EXHIBIT CI i 2 © Council Meeting Approval 2 days Thu 2/24/22 Fri 2/25/22 ■ 3 cis City Process Contract 9 days Mon 2/28/22 Thu 3/10/22 2 T� 4 NTP 0 days Thu 3/10/22 Thu 3/10/22 3 Vic 5 Task 1-PROJECT MANAGEMENT 150 days Fri 3/11/22 Thu 10/6/22 4 6 Task 1 1 Protect Management 150 days Fri 3/11/22 Thu 10/6/22 4 7 Task 2-SURVEYAND PLATTING 150 days Fri 3/11/22 Fri 30/7/22 4 8 M Task 2 1 Boundary and Topographic Survey 30 days Fn 3/11/22 Thu 4/21/22 4 9 :' Task 2 2 Platting 120 days Fri 4/22/22 Thu 30/6/22 a 10 Q Plat Complete 0 days Fn IO/7122 Frr.10/7/22 9 10/7 11 Task 3-GEOTECHNICAL INVESTIGATION 30 days Fri 3/18/22 Thu 4/28/22 4 12 Ta•.k 3 1 Geolechnical nvestigalion 30 days Fri 3/18/22 Thu 4/28/22 21 13 Task 4-DRAINAGE 116 days Fri 3/18/22 Mon 8/29/22 21 14 Task 4 1 Detention Pond Analysis 8 its Fn 3/18/22 Thu 5/12/22 21 �� 15 :3 Task 4 2 No impact Study 4 wks Mon 8/1/22 Fri 8/26/22 79 Allow 12 wanks for HCFCD mriaw 16 0 Task 4 3 Comment Response 3 wks Fn S/13/22 Thu 6/2/22 14 ;�---------�---- 1 17 © Drainage Analysis Complete 0 days Mon 8/29/22 Mon 8/29/22 16.15 I I �% 8/29 18 [a Task 5-PER 101 days Fri 3/11/22 Mon 8/1/22 4 19 13 Task S 1 Turf Vendor Analysis 3 wks Fri 3/11/22 Thu 3/31/22 4 * y 20 ] Q Task 5 2 Schematic Design 60 days Fn 3/11/22 Thu 6/2/22 4 ? - 21 Preliminary Turf&Parking Lot layout 1 wk Fri 3/11/22 Thu 3/17/22 4 i 22 Draft 3 wks Fn 4/22/22 Thu 5/12/22 8 ' 23 ¢—] Task S 3 OPCC and Phasing Diagram I wk Mon 5/9/22 Frr.S/13/22 24 Task 5 4 Technical Memo I wk Fn 5/13/22 Thu S/19/22 14 xs 2S City Review of Draft 3 wks Fn S/20/22 Thu 6/9/22 24 Y 26 KH Revisions 2 wks Fn 6/10/22 Thu 6/23/22 25 27 City Review of Revised Draft Exhibits 3 wks Fn 6/24/22 Thu 7/14/22 26 � 28 0 KH Revisions 2 wks Fn 7/15/22 Thu 7/28/22 27 29 Receipts of Final 30%Schematic Exhibits 1 day Fn 7/29/22 Fri 7/29/22 28 i 30 ® Final Submittal 0 days Mon 8/1/22 Mon 8/1/22 29 T 811 Estimated schedule for the scope provided in EXHIBIT Awsll be 211 calendar days from Notice to Proceed