Ordinance No. 15,294 ORDINANCE NO. 15,294
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE AGREEMENT FOR PROFESSIONAL SERVICES WITH
KIMLEY-HORN AND ASSOCIATES, INC., TO PERFORM ON-CALL
ENGINEERING SERVICES TO ASSIST THE PUBLIC WORKS AND ENGINEERING
DEPARTMENT IN PLAN REVIEWS AND MISCELLANEOUS ENGINEERING
SERVICES; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN
AMOUNT NOT TO EXCEED ONE HUNDRED THOUSAND AND NO/100 DOLLARS
($100,000.00); 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 the Agreement for Consulting Services with Kimley-
Horn and Associates, Inc., to perform on-call engineering services for to assist the Public Works and
Engineering Department in plan reviews and miscellaneous engineering services. 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 THOUSAND AND NO/100 DOLLARS
($100,000.00) 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 NO 100 DOLLARS ($50,000.00)or less.
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 , uncil of the City of
Baytown this the 81h day of December, 2022.
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SCOTT LEM , City Attorney
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EXHIBIT "A"
AGREEMENT FOR CONSULTING SERVICES
STATE OF TEXAS §
COUNTY OF HARRIS §
This Agreement (this "Agreement") is 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 provide on-call professional engineering services on an
on-call basis (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 THOUSAND
AND 0/100 DOLLARS ($100,000). 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:
l. Design Phase Services (Hourly Not to Exceed) ..............................$100,000.00
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...........................................................................................................$0.00
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 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 Stephen Kelly, 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.
d. Rejection of Consultant's Employees
The City reserves the right to approve or reject from the Work any employees of
Consultant.
Agreement for Professional Services,Page 2
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 the
City's Ordinance, 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 (5) years of proven experience in the field, and such
satisfactory documentation has been approved by the City's Representative.
Aereement for Professional Services,Page 3
(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
geotechnical reports, shall be submitted in hard copy only. All Record
Drawings electronic files shall be submitted to the City in PDF/TIF format.
Agreement for Professional Services,Page 4
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. 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
■ 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.
Agreement for Professional Services,Page 5
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.
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.
Agreement for Professional Services,Page 6
9 Indemnification and Release(For architectural and engineering services ONLY)
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 EXPRESS 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 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, SUBJECT TO THE
LIMITATIONS IN TEXAS LOCAL GOVERNMENT CODE SECTION
271.904 AND TEXAS CIVIL PRACTICE AND REMEDIES CODE
SECTION 130.002.
Agreement for Professional Services,Page 7
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:
(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
Aereement for Professional Services,Page 8
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
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:
Agreement for Professional 3enLices,Page 9
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.
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.
Agreement for Professional Services,Page 10
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.
Attn: Stephen Kelly
11700 Katy Freeway, Suite 800
Houston, Texas 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.
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
Agreement for Professional Services,Page 11
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.
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 22"d 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 12
CONSULTANT:
K_imley-Horn and Associates, Inc.
(Company Name)
a440.- K. 2 Pe.
(Signature)
Aaron K Rader, P.E.
(Printed Name)
Vice President
(Title)
STAI E OF TEXAS EXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared Aaron K. Rader in his/her
capacity as Vice President of , oil behalf of such
Kimle -Horn and Associates,Inca
❑X (mown 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 21st day of November , 20_22.
USAKULHANEK otary P tblic in and for the State of Texas
My Notary ID#1210674
++1%i•oy *,.'4 Expires January 27,2024 t
Aore_e_ment for Professional Services,Page 13
EXHIBIT A- SCOPE OF SERVICES
PROJECT BACKGROUND
This proposal is based on our understanding of the City's need for assistance with the review of
development plans submitted to the City by private developers and other miscellaneous engineering
support which may include, but not be limited to ad-hoc analysis such as traffic, drainage, grading
calculation, or ad-hoc minor site-specific design. Level of effort shall first be agreed upon by the
Consultant and the City prior to undertaking such miscellaneous engineering. The Consultant will provide
on-call engineering services to be an extension of the City's staff for the purposes of providing
development review assistance and engineering services on an "as-needed"basis as directed by the City
of Baytown as a complement to the efforts of City staff.
The Consultant will provide on-call engineering services for the City. The work the City may request of the
Consultant as part of this agreement may include but are not limited to the following:
• Professional Engineering Representative:
These Services will include representing the City as its professional engineer as requested by the
City. Services may include meetings with developers to discuss preliminary development plans or
meeting with State or Federal regulatory agencies to discuss items relevant to the City.
• Review of Development Site Plans, Infrastructure Plans, Construction Plans and
Construction Specifications:
These services will include reviewing development site plans, infrastructure plans, construction
plans, and construction specifications for conformance with the City's Development Rules and
Regulations. Other services related to these may include coordination with Developer and
Developer's Engineer. The Consultant's limited evaluation may not disclose all errors or defects
that might be in the plans, but is intended merely to provide the City with a greater degree of
confidence that the plans have been prepared in accordance with applicable professional
standards of care. By conducting this limited evaluation, the Consultant is not assuming
responsibility for the content and accuracy of the plans, and the Client acknowledges that it will
not attempt to hold the Consultant liable for any defects that may exist in the plans. The
Consultant will utilize the City's Inergov software on laptops provided by the City to coordinate,
download plans, and upload completed reviews.
The employee of the Consultant will perform tasks as directed by and as a supplement to the
City's staff. The City's staff will be responsible for utilizing the Consultant's employee to perform
such tasks that would be typical of an employee of the City with similar experience. As such, the
Consultant shall be entitled to all defenses and immunities that are, or would be, available to the
City. Such tasks may include, but may not be limited to, attending project meetings, project plan
review, project coordination, etc.
• Miscellaneous Engineering Services:
The Consultant will provide engineering services as requested by the City. Work Orders for
Engineering Services are anticipated to be issued services as follows:
Obtain written approval from the City of Baytown to complete the scoped work for the
agreed not-to-exceed fee.As tasks are added or expanded, provide new or amended
scope.
Support services such as survey and data collection if needed will be coordinated by the
Consultant but contracted directly with the City of Baytown.
Miscellaneous engineering shall be developed as a Technical Memorandum or Plan
sheet as appropriate, unless specific request is made for another format. It will be signed
and sealed by a professional engineer.
The Consultant will provide the number of hours spent versus the agreed upon budget for
a given task as an attachment to each invoice. It is not a separate contract and will be
billed under the on-call with the rates shown in Exhibit B.
Additional Services
Any services beyond the Scope of Services not specifically described in the scope shall be
considered additional services. The Consultant can provide additional services, if needed, upon
the City's issuance of a written change in scope. Any additional amounts paid to the 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.
EXHIBIT B — Fee Summary and Hourly Rate Schedule
Kimley-Horn proposes to perform the on-call engineering services described in Exhibit A
on an hourly, not-to-exceed basis, not-to-exceed fee of$100,000.
Direct reimbursable expenses such as express delivery services, fees, air travel, and other direct
expenses will be billed at cost. A percentage of labor fee will be added to each invoice to cover
certain other expenses such as telecommunications, in-house reproduction, postage, supplies,
project related computer time, and local mileage. Administrative time related to the project will be
billed hourly.
Kimley-Horn will perform these services based on the hourly rate schedule below. Payment will
be due within 30 days of your receipt of the invoice.
Kimley-Horn and Associates, Inc.
Standard Rate Schedule
(Hourly Rate)
Analyst $150-$230
Professional $200-$275
Senior Professional 1 $240-$330
Senior Professional II $295-$350
Senior Technical Support $150-$260
Support Staff $105-$135
Technical Support $95-$140
Effective through September 30, 2023
Subject to periodic adjustment thereafter
EXHIBIT C - SCHEDULE
Kimley-Horn will provide our services as expeditiously as practicable with the goal of meeting a
mutually agreed upon schedule as dictated by the nature of the work requested by the City.
Times for performance shall be extended as necessary for delays due to circumstances that
Kimley-Horn does not control. Kimley-Horn shall not be liable for or be deemed in breach
because of delays caused by any factor outside of its reasonable control.