Ordinance No. 15,285 ORDINANCE NO. 15,285
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS,
AUTHORIZING A CONSULTING SERVICES AGREEMENT WITH CLARK
CONDON ASSOCIATES, INC., FOR THE DESIGN AND DEVELOPMENT OF
CONSTRUCTION DOCUMENTS FOR THE 100 BLOCK PROJECT;AUTHORIZING
PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE
HUNDRED SEVENTY-NINE THOUSAND SIX HUNDRED TWENTY-ONE AND
NO/100 DOLLARS ($179,621.00); MAKING OTHER PROVISIONS RELATED
THERETO;AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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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 Consulting Services Agreement with Clark
Condon Associates, Inc., for the design and development of construction documents for the 100 Block
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 Clark Condon
Associates, Inc., in an amount not to exceed ONE HUNDRED SEVENTY-NINE THOUSAND SIX
HUNDRED TWENTY-ONE AND NO 100 DOLLARS ($179,621.00) for professional services in
accordance with the agreement authorized in Section 1 hereinabove, of which THIRTY-EIGHT
THOUSAND THREE HUNDRED TWENTY-EIGHT AND NO 100 DOLLARS($38,328.00)shall be for
additional scope of services that may be warranted for the project, and FIFTEEN THOUSAND AND
NO;100 DOLLARS($15,000.00)shall be for reimbursable expenses.
Section 3: That the City Manager is hereby granted general authority to approve a decrease or
an increase in costs by FIFTY THOUSAND AND NO'100 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%).
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 o the City Council of the City of
Baytown this the 22"d day of November,2022.
o��PYY�WN, 13RANDON CAPETILLO, Aayor
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TEST:
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ANGELA C SO .y} Nly,Clerk
APPROVED A T O
SCOTT LEM ,City Attorney
R:%Scott..Ordinances I1-22-22 ProfessionalServicesAgreementClarkCondon.docx
EXHIBIT "A"
AGREEMENT FOR CONSULTING SERVICES
STATE OF TEXAS §
COUNTY OF HARRIS §
This Agreement (this "Agreement") is entered into by and between Clark Condon 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 the study and completion of a Preliminary
Design services for the design and construction of an adultikid entertainment play area to support
the current Town Square facility located at the 100 Block of Texas Avenue in Baytown, Texas
(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 SEVENTY-NINE
THOUSAND SIX HUNDRED TWENTY-ONE AND NOi 100 DOLLARS ($179,621). 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. Preliminary Design(Lump Sum) ........................................... $22,299
2. Design Phase." Development(Lump Sum)..............................................$31,514
3. Construction Documents (Lump Sum)...................................................$41,575
4. Bidding(Lump Sum)................................................................................$6,588
5. Construction Phase Services(Lump Sum) .............................................$24,017
6. Supplemental Services (Lump Sum) ......................................................$38,628
7. Reimbursable:Direct Expenses (Not to Exceed).....................................$15,000
8. Total.....................................................................................................$179,621
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;
Agreement for Consulting Services,Page I
(b) Postage;
(c) Mileage, for travel from Consultant's local office (within a 25-mile
radius) to meetings at the City or jobsite. Mileage shall be charged
at the current IRS rates;
(d) Travel Expenses, mileage from local office to state or federal
regulatory agency office beyond 100 miles; 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 Elizabeth Gilbert, to serve as Project Manager for the
Work performed under this Agreement. Any change of Project Manager shall
require thirty(30) days advance written approval from the City's Representative.
b. Licensed and Registered Architects;'Engineers
Consultant shall keep 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.
Agreement 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 their 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 judgment 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
design errors, omissions, or deficiencies therein. Consultant shall correct such
design errors,omissions,or 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.
(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
Agreement for Professional Services,Page 3
recognized standards exist may be used provided there has been at least
five (5) 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 with 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 design or analytical errors,
omissions, or deficiencies 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.
(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
Agreement for Professional Services,Page 4
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 and 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 and that any changes to consultant's
Instruments of Service or any re-use of our Instruments of Service for another project will be at the
City's sole risk and without liability to the Consultant and the Consultant's Subconsultants.
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 persons 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 General and Automobile 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 umbrella 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:
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
Agreement for Professional Services.Page 5
■ 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 (-): VII 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
canceled in coverage or in limits except after thirty (30) days prior written
notice by mail, return receipt requested, has been given to the City.
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 furnished to the City.
Agreement for Professional Services.Page 6
S. 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
LANDSCAPE ARCHITECT AGREES TO AND SHALL, TO THE EXTENT
PERMITTED BY TEXAS LOCAL GOVERNMENT CODE §271.904,
INDEMNIFY, AND HOLD THE CITY, ITS AGENTS, EMPLOYEES,
OFFICERS, AND LEGAL REPRESENTATIVES HARMLESS FOR ALL
CLAIMS, CAUSES OF ACTION, LIABILITIES, FINES, AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT
COSTS, AND ALL OTHER DEFENSE COSTS AND INTEREST) FOR INJURY,
DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY ARISING AS A
RESULT OF LANDSCAPE ARCHITECT'S AND OR ITS AGENTS',
EMPLOYEES', OFFICERS', DIRECTORS', LANDSCAPE ARCHITECT'S, OR
SUBCONTRACTORS' ACTUAL OR ALLEGED NEGLIGENCE OR
INTENTIONAL ACTS OR OMISSIONS IN CONNECTION WITH ITS
PERFORMANCE UNDER THIS AGREEMENT, WHETHER LANDSCAPE
ARCHITECT IS IMMUNE FROM LIABILITY OR NOT. LANDSCAPE
ARCHITECT SHALL INDEMNIFY AND HOLD THE CITY HARMLESS
DURING THE TERM OF THIS AGREEMENT AND FOR FOUR YEARS
AFTER THE AGREEMENT TERMINATES.
LANDSCAPE ARCHITECT SHALL NOT INDEMNIFY THE CITY FOR THE
CITY'S SOLE NEGLIGENCE.
RELEASE AND INDEMNIFICATION OF PATENT, COPYRIGHT,
TRADEMARK, AND TRADE SECRET INFRINGEMENT 4.2.1 LANDSCAPE
ARCHITECT AGREES TO AND SHALL RELEASE AND DEFEND,
INDEMNIFY, AND HOLD HARMLESS THE CITY, ITS AGENTS,
EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES
(COLLECTIVELY THE "CITY") FROM ALL CLAIMS OR CAUSES OF
ACTION BROUGHT AGAINST THE CITY BY ANY PARTY, INCLUDING
LANDSCAPE ARCHITECT, ALLEGING THAT THE CITY'S USE OF ANY
EQUIPMENT, SOFTWARE, PROCESS, OR DOCUMENTS DS LANDSCAPE
ARCHITECT FURNISHES DURING THE TERM OF THIS AGREEMENT
INFRINGES ON A PATENT, COPYRIGHT, OR TRADEMARK, OR
MISAPPROPRIATES A TRADE SECRET. LANDSCAPE ARCHITECT SHALL
PAY ALL COSTS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS'
FEES, COURT COSTS, AND ALL OTHER DEFENSE COSTS, AND INTEREST
AND DAMAGES AWARDED.
Aereement for Professional Services.Page 7
LANDSCAPE ARCHITECT SHALL NOT SETTLE ANY CLAIM ON TERMS
WHICH PREVENT THE CITY FROM USING THE EQUIPMENT,
SOFTWARE, PROCESS, AND DOCUMENTS WITHOUT THE CITY'S PRIOR
WRITTEN CONSENT.
WITHIN 60 DAYS AFTER BEING NOTIFIED OF THE CLAIM, LANDSCAPE
ARCHITECT SHALL, AT ITS OWN EXPENSE, EITHER (1) OBTAIN FOR
THE CITY THE RIGHT TO CONTINUE USING THE EQUIPMENT,
SOFTWARE, PROCESS, AND DOCUMENTS OR, (2) IF BOTH PARTIES
AGREE, REPLACE OR MODIFY THEM WITH COMPATIBLE AND
FUNCTIONALLY EQUIVALENT PRODUCTS. IF NONE OF THESE
ALTERNATIVE IS REASONABLY AVAILABLE, THE CITY MAY RETURN
THE EQUIPMENT, SOFTWARE, OR DOCUMENTS, OR DISCONTINUE THE
PROCESS, AND LANDSCAPE ARCHITECT SHALL REFUND THE
PURCHASE PRICE.
LANDSCAPE ARCHITECT SHALL REQUIRE ALL OF ITS
SUBCONTRACTORS (AND THEIR SUBCONTRACTORS) TO RELEASE AND
INDEMNIFY THE CITY TO THE SAME EXTENT AND IN SUBSTANTIALLY
THE SAME FORM AS ITS RELEASE AND INDEMNITY TO THE CITY.
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 for Professional Services,Page 8
Agreement if Consultant breaches this Agreement. A breach of this Agreement shall include, but
not be limited to, the following:
(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 product 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 (10) 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
Aereement for Professional Services.Page 9
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
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 (60) calendar 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 thirty (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 (3) 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 (15) 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:
CLARK CONDON ASSOCIATES, INC.
Attn: Elizabeth Gilbert
10401 Stella Link Road
Houston, Texas 77025
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
Aereement for Professional Services.Page 11
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.
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.
Agreement for Professional Services,Page 12
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.
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 November, 2022, 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:
SCOTT LEMOND, City Attorney
Agreement for Professional Services,Page 13
CONSULTANT:
CLARK CONDON ASSOCIATES,INC.
(Signatu
Elizabeth Gilbert
(Printed Name)
Managing Principal
(Title)
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared Elizabeth Gilbert in his/her
capacity as Managing Principal ofG �on behalf of such
0 known to me;
❑ 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 A�day of D V'L7m 8 C-/- 20-;,�
so.?vie. CHRYSE ALAIN JEROME
t3 P
'•: My Notary ID#126466199 No ry Public in and for the late of Texas
Expires March 31,2024
Agreement for Professional Services,Page 14
CLARK CONDON
October 27,2022 10401 STELLA LINK ROAD
November 1,2022, Revised HOUSTON, TEXAS 77025
phone 713.871.1414 fax713.871.0888
CLARKCONDON.COM
EXHIBIT"A"
SCOPE OF WORK—The Scope of Work for this project will include the design and construction of an adult/kid entertainment
play area to support the current Town Square facility. The project is located at the 100 Block of Texas Ave. The planned
amenities include play equipment for both adults and kids,solar light benches and lighting,arcade area,food court,table games,
restrooms,and informal stage area with dedicated power for small performance events. The restroom and food court support
areas are intended to be modular, pre-engineered and prefabricated structures;the design team will coordinate locations and
utility requirements and connections. The facility should provide a fun atmosphere that can be used day or night.
The work will be accomplished by working closely with the client and design team. The design team will include a civil engineer,
electrical engineer,structural engineer,and geotechnical engineer.For the purposes of this Scope of Work,City of Baytown will
be referred to as the Client and Clark Condon Associates, Inc.as the Landscape Architect.
The work will be performed as outlined below:
PRELIMINARY DESIGN-The Landscape Architect and Design Team shall prepare Preliminary Design drawings for the project.
Drawings shall indicate general concepts, spatial relationships, scale and form, and respond to site conditions, the program,
and budget.Services to be provided in this phase include:
1. Visit the site to become familiar with the existing features of the site and the surrounding area.
2. Collect any existing data from the Client including existing site surveys and base maps,deed,or lease agreements to
determine possible restrictions, right-of-way and easement information,existing site environmental investigations and
assessments, electronic drawings files, utility plans and maintenance records, site constraints, prior studies, etc. for
project site.
3. Request information on dry utilities from private utility companies, design services for dry utilities such as
telecommunications is not included in scope.
4. Review and coordinate wet utility capacities and availability.
5. Evaluate sources for power(both solar and hard-wired electrical services and power needs.
6. Project management and coordination with Design Team to develop Preliminary Design concepts.
7. Organize and schedule meetings with Client to review design concepts(2 maximum).
8. Prepare Preliminary Concepts and options for the overall scope.
9. Present Preliminary Concepts to Client for review and discussion.Following this input,the concepts will be consolidated
into one design.
10. Prepare a budgetary construction cost estimate based upon Preliminary Design.
11. Deliverables include rendered plans,elevations,and perspectives.
DESIGN DEVELOPMENT—Design Development shall be initiated after the Client's approval of the Preliminary Design. During
this phase,we shall refine the design and budgets for the project. Design Development drawings shall depict actual materials,
sizes and locations of all landscape elements. Services to be provided in this phase include:
1. Prepare Design Development plans for all areas approved during Preliminary Design.
2. Select materials for all landscape architecture aspects, i.e., walkways, plaza(s), play equipment, site furnishings,
fencing,and plantings.
3. Organize and schedule Client meetings(2 maximum).
landscape architectur- Page 1 of
CLARK CONDON
4. Present Design Development plans and materials to Client for review and discussion.
5. Prepare cost estimates based on Design Development drawings.
6. Layout irrigation concept and main line.
7. Prepare an outline specification.
8. Prepare preliminary layouts for utility,drainage,and grading design.
9. Prepare preliminary site lighting and power plans.
10. Coordination on pre-engineered restroom and containers for utility requirements.
11. Provide preliminary tree protection and removal plan and details.
12. Deliverables include site plans at 1"=20'scale indicating all items approved in Design Development.
CONSTRUCTION DOCUMENTS - The Construction Documents phase shall be initiated after the Client's approval of the
Design Development drawings.The Landscape Architect shall prepare Construction Documents and technical specifications for
bidding and installation of all landscape architectural elements approved in Design Development.Services to be provided in this
phase include:
1. Provide site plans at V=20'-0"scale indicating all items approved in Design Development.
2. Provide details for all improvements as required for proper construction, installation, or finishing of all landscape
components.
3. Prepare layout plans dimensioning all proposed improvements.
4. Coordinate with civil engineer on grading and drainage.
5. Prepare planting plans including all tree,shrub,vine,and groundcover selections for all locations.
6. Prepare irrigation plans including specifications, identification, location and sizing of the irrigation system and its
component parts.
7. Prepare dimension control and paving layout.
8. Finalize utility and drainage plans.
9. Prepare storm water pollution prevention plan.
10. Final site lighting and power documentation.
11. Provide tree protection and removal plans, details, and mitigation calculations. Comply with local tree ordinance and
coordinate with forestry department for trees removed from the site as necessary.
12. Prepare final construction cost estimate to include unit costs at current construction dollars.
13. Organize and schedule Client meetings(2 maximum).
14. Prepare project manual including contract documents and technical specifications in MasterSpec format.
15. Conduct project QAIQC review with Design Team.
16. Issue signed and sealed permit set.
17. Submit plans to TDLR for review.
18. Prepare final Construction Documents in reproducible format and digital format,AutoCAD.
BIDDING -After completion and approval of the Construction Documents, the Landscape Architect shall assist Client with
putting the plans out for public bid.This scope assumes we shall prepare one bid package.
1. Distribute bid documents.
2. Conduct a pre-bid conference.
3. Prepare addenda as necessary.
4. Evaluate bids and make recommendations for contracts.
5. Revise the Construction Documents in a closing addendum, which incorporate any revisions and cost saving items
agreed to during the bidding phase.
CONSTRUCTION PHASE SERVICES-The Landscape Architect shall provide Construction Phase Services for the project.
Services to be provided in this phase include:
1. Perform periodic site visits(approximately 8 visits).The Design Team shall visit the site at intervals appropriate to the
stage of construction, or as otherwise agreed with the Client to become generally familiar with the progress of the
portion of the Work completed, and to determine in general if the Work observed is being performed in a manner
indicating the Work, when fully completed, shall be in accordance with the Contract Documents. However, the
Page 2 of 4
CLARK CONDON
Landscape Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or
quantity of the Work. The Landscape Architect shall not have control over, charge of, or responsibility for, the
construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in
connection with the Work,since these are solely the Contractor's rights and responsibilities.
2. Prepare elementary and supplementary sketches required to resolve field conditions related to design.
3. Review and take appropriate action on submittals,RFIs,and shop drawings submitted by contractors for conformance
with the design concept.
4. Inspect plant materials, pre-delivery and on site,to assure conformance with plans and specifications as necessary.
5. Coordinate and conduct a substantial completion walkthrough at the conclusion of the construction and provide a punch
list to Contractor to complete the project.
6. Based on site visits, and the data comprising the pay application,the Landscape Architect shall review and certify to
Client that to the best of the Landscape Architect's knowledge, information and belief the Work has progressed as
indicated and the quality of the Work is in accordance with the Contract Documents, and the Contractor is entitled to
payment of the amount certified.
7. Review change orders for approval by the Client.
SUPPLEMENTAL SERVICES -The Landscape Architect and Design Team can provide the following supplemental services
as required by the Client:
1. Boundary Survey—Texas Society of Professional Surveyors Category 1 A,Condition 2 Survey
2. Topographic Survey—Texas Society of Professional Surveyors Category 6 Survey
3. Water Meter Easement services
4. Platting, excluding variance requests or public hearings. Client agrees to provide title report or planning letter and all
submittal fees related to platting
5. Geotechnical Report
FEE-The total fee for this project is a lump sum based upon the estimated time and scope for professional services as outlined
below, plus reimbursable expenses. Refer to Exhibit B for more detailed level of effort.
Basic Services
Preliminary Design $22,299.00
Design Development $31,514.00
Construction Documents $41,575.00
Bidding $6,588.00
Construction Phase Services $24,017.00
TOTAL BASIC SERVICES $125,993.00
Supplemental Services
Boundary Survey $6,800.00
Topographic Survey $10,020.00
Water Meter Easement $1,400.00
Platting $8,620.00
Geotechnical Report $11,788.00
TOTAL SUPPLEMENTAL SERVICES $38,628.00
It is anticipated the work will be complete in 6 months.Refer to Exhibit C.
Page 3 of 4
CLARK CONDON
REIMBURSABLE EXPENSES - The Client shall pay the Landscape Architect for the cost of out-of-town travel expenses,
messengers, mileage, printing, services of professional consultants which cannot be quantified at the time of contracting, and
other directly related costs.All expenses will be billed at cost to a maximum of$15,000.00.
ADDITIONAL SERVICES—We consider additional services to include changes made after a phase of work has been accepted
and we have been authorized by the Client to proceed to the next phase or because of Client changes to previous Project
budget parameters or Project requirements. An additional services lump sum proposal will be submitted to the Owner for
approval prior to the start of any out-of-scope work.
HOURLY RATES
Partner $350.00mour
Principal $225.00/hour
Senior Associate $175.00/hour
Associate $125.00/hour
Project Staff $100.00/hour
Administrative $90.00/hour
Hourly rates will be reviewed annually and may be increased in accordance with annual salary and cost-of-living reviews.
EXCLUSIONS TO THE CONTRACT
1. Off-site utility and paving design
2. Right-of-way improvements,including but not limited to traffic signals and turn lanes.
3. Storm water detention design
4. Storm water quality management plan
5. Existing site engineering and utility base information
6. Archeological Investigation
7. Environmental Investigation
8. LEED Documentation
9. Traffic impact analysis
10. Building energy modeling
11. Design of mechanical or plumbing systems
12. Record Drawings
13. 3D Renderings/Graphics
Page 4 of 4
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